HomeMy WebLinkAbout10-11-21 Zoning Commission Agenda & Packet MaterialsA.Call meeting to order
B.Disclosures
C.Approval of Minutes
C.1 Approval of Meeting Minutes from 08-23-21(Scott)
D.Public Comment
Please state your name and address in an audible tone of voice for the record. This is the time for
individuals to comment on matters falling within the purview of the Committee. There will also be
an opportunity in conjunction with each action item for comments pertaining to that item. Please
THE ZONING COMMISSION OF BOZEMAN, MONTANA
ZC AGENDA
Monday, October 11, 2021
WebEx Meeting Information
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Public Comment:
If you are interested in commenting in writing on items on the agenda, please send an email to
agenda@bozeman.net prior to 4:00pm on Monday, October 11th, 2021. You may also comment by
visiting the City's public comment page.
You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you
please be patient in helping us work through this online meeting. If you are not able to join the Webex
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with your phone number, the item(s) you wish to comment on, and someone will call you during the
meeting to provide an opportunity to comment. You may also send the above information via text to
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As always, the meeting will be streamed through the City's video page (click the Streaming Live in the
drop down menu), and available in the City on cable channel 190.
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limit your comments to three minutes.
E.Action Items
E.1 Application 21360 Marijuana Zone Text Amendments(Saverud)
E.2 Gallatin County Rest Home Zone Map Amendment to revise the zoning map on 9.8 acres at
1221 Durston Road from R3 - Medium Density Residential to R4 - High Density Residential,
application 21330(Saunders)
F.FYI/Discussion
G.Adjournment
For more information please contact Tom Rogers at trogers@bozeman.net
This board generally meets the 2nd and 4th Monday of each month from 6:00 PM to 8:00 PM
Committee meetings are open to all members of the public. If you have a disability and require
assistance, please contact our ADA coordinator, Mike Gray at 582-3232 (TDD 582-2301).
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Memorandum
REPORT TO:Zoning Commission
FROM:Taylor Chambers - Community Development Technician II
SUBJECT:Approval of Meeting Minutes from 08-23-21
MEETING DATE:October 11, 2021
AGENDA ITEM TYPE:Minutes
RECOMMENDATION:I move to approve the meeting minutes from August 23rd, 2021.
STRATEGIC PLAN:1.2 Community Engagement: Broaden and deepen engagement of the
community in city government, innovating methods for inviting input from
the community and stakeholders.
BACKGROUND:None
UNRESOLVED ISSUES:None
ALTERNATIVES:1. Approve meeting minutes with corrections.
2. Do not approve meeting minutes.
FISCAL EFFECTS:None
Attachments:
08-23-21 Zoning Commission Minutes DRAFT.pdf
Report compiled on: August 24, 2021
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 1 of 8
THE ZONING COMMMISSION MEETING OF BOZEMAN, MONTANA
MINUTES
Monday, August 23rd, 2021
00:00:13 WebEx Meeting Information
A) 00:01:14 Call meeting to order
Present: Nicole Olmstead, Mark Genito, George Thompson, Christopher Scott
Absent: Kirsa Shelkey
B) 00:02:09 Disclosures
Board member Olmstead informed the board that she will recuse herself from E.3.
C) 00:03:58 Approval of Minutes
C.1 Minutes approval for 12-10-19, 07-26-21, and 08-09-21
12-10-19 Zoning Commission Minutes (Draft).pdf
07-26-21 Zoning Commission Minutes DRAFT.pdf
08-09-21 Zoning Commission Minutes DRAFT.pdf
00:04:51 Motion C) Approval of Minutes
Nicole Olmstead: Motion
Mark Genito: 2nd
00:05:07 Vote on the Motion to approve C) Approval of Minutes. The Motion carried 4 - 0
Approve:
Nicole Olmstead
Mark Genito
George Thompson
Christopher Scott
Disapprove:
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 2 of 8
None
D) 00:05:36 Public Comment
E) 00:06:22 Action Items
E.1 00:06:24 2103 Bridger Drive Annexation and Zone Map Amendment for the
Establishment of a Zoning Designation of R-2 for a property Addressed at 2103 Bridger
Drive, Application 21147. Meeting continued from August 9, 2021.
Development Review Application 3 28 2021.pdf
Zone Map Amendment Project Narrative 3 28 2021.pdf
Site Plan 3 28 2021.pdf
Annexation Application Project Narrative 7 6 2021.pdf
21147 2103 Bridger Drive ZMA ZC SR revised.pdf
00:06:52 Staff Presentation
Planner Rogers presented project 21-147 Bridger Drive Annexation and Zone Map Amendment to the
Board and recommended that the project meets criteria of evaluation.
00:15:20 Board Questions
Board members directed questions to staff.
00:26:46 Applicant Presentation
Property owner Kristal Jones added supplemental information to the staff presentation.
00:30:02 Board Questions
Board members directed questions to the applicant.
00:35:17 Public Comment Opportunity.
No public Comment at this time.
00:36:09 Board Discussion
00:36:42 Motion Having reviewed and considered the staff report, application materials, public
comment, and all information presented, I hereby adopt the findings presented in the staff report for
application 21147 and move to recommend approve the 2103 Bridger Drive Zone Map Amendment,
with contingencies required to complete the application processing.
Mark Genito: Motion
George Thompson: 2nd
Board member Genito spoke to his motion.
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 3 of 8
Board member Olmstead commented that she would be supporting the motion.
Chairman Scott commented that he would be supporting the motion and adopted the staff findings as
his own.
Board member Thompson spoke to the possible benefits of R-3 zoning opposed to R-2 zoning.
00:44:22 Vote on the Motion to approve Having reviewed and considered the staff report, application
materials, public comment, and all information presented, I hereby adopt the findings presented in the
staff report for application 21147 and move to recommend approve the 2103 Bridger Drive Zone Map
Amendment, with contingencies required to complete the application processing. The Motion carried 4 -
0
Approve:
Nicole Olmstead
Mark Genito
George Thompson
Christopher Scott
Disapprove:
None
E.2 00:45:03 The West Babcock Properties Zone Map Amendment to rezone 3.4
acres from B-2 to B-2M for Properties Addressed at 102 South 19th Avenue and 1716,
1736, and 1804 West Babcock Street, Application 21192. Meeting continued from
August 9, 2021.
A1 - 19th and Babcock Rezoning 2021-05-06.pdf
EXHIBIT A - VICINITY MAP 2021-5-11.pdf
EXHIBIT C - FUTURE LAND USE MAP 2021-5-11.pdf
EXHIBIT D - PROPOSED ZONING 2021-5-11.pdf
EXHIBIT B - EXISTING ZONING 2021-5-11.pdf
ZMA Narrative 05-05-2021.pdf
Exhibit 2 - Zone Map Amendment (8.5 x 11) 05-21-2021.pdf
21192 19th & Bab ZMA ZC Staff Report.pdf
00:45:36 Staff Presentation
Planner Rogers presented the West Babcock Properties Zone Map Amendment to the Board and
recommended that the application met criteria of evaluation.
00:52:08 Board Questions
Board members did not have questions for staff.
00:52:14 Applicant Presentation
Ryan Krueger of Intrinsik Architecture presented on behalf of the applicant.
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 4 of 8
00:59:31 Board Questions
Board members directed questions to the applicant.
01:01:59 Public comment opportunity
01:02:45 Board Discussion
01:03:02 Motion Having reviewed and considered the staff report, application materials, public
comment, and all information presented, I hereby adopt the findings presented in the staff report for
application 21192 and move to recommend approve the West Babcock Properties Zone Map
Amendment, with contingencies required to complete the application processing.
George Thompson: Motion
Mark Genito: 2nd
Board member Thompson spoke to his motion.
Board member Genito commented that he will be supporting the motion.
Board member Olmstead commented that she will be supporting the motion.
Chairman Scott commented that he will be supporting the motion.
01:07:00 Vote on the Motion to approve Having reviewed and considered the staff report, application
materials, public comment, and all information presented, I hereby adopt the findings presented in the
staff report for application 21192 and move to recommend approve the West Babcock Properties Zone
Map Amendment, with contingencies required to complete the application processing. The Motion carried
4 - 0
Approve:
Nicole Olmstead
Mark Genito
George Thompson
Christopher Scott
Disapprove:
None
E.3 01:07:34 2021 NE Corner Davis Lane & Westlake Road Annexation and Zone Map
Amendment, Located NE of the Intersection of Davis Lane and Westlake Road, 17.197
Acres to be Designated as R-5 Residential Mixed Use High Density District, Application
21186
21186 Davis and Westlake Annx-ZMA ZC staff report final.pdf
01:07:56 Staff Presentation
Planner Chris Saunders presented application 21-186 Davis Ln & Westlake Rd. Annexation and Zone Map
Amendment to the Board and recommended that the application met criteria of evaluation.
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 5 of 8
01:11:04 Board Questions
Board members directed questions to staff.
01:14:45 Applicant Presentation
Matt Ekstrom of Morrison Maierle presented on behalf of the applicant.
01:15:39 Board Questions
Board members directed questions to the applicant.
01:16:54 Public Comment Opportunity
Cecilia Vaniman commented in opposition of zoning the proposed property as R-5.
01:25:04 Board Discussion
Board member Genito asked Planner Saunders about the transportation plan, should the property be
annexed to the City.
01:27:27 Motion Recommended Zoning Commission Motion: Having reviewed and considered the staff
report, application materials, public comment, and all information presented, I hereby adopt the
findings presented in the staff report for application 21186 and move to recommend approval of the
Davis and Westlake Annexation Zone Map Amendment, with contingencies required to complete the
application processing.
Mark Genito: Motion
George Thompson: 2nd
Board member Genito spoke to his motion.
Board member Thompson spoke to his second.
Chairman Scott commented that he will be supporting the motion and adopted the staff findings as his
own.
01:32:20 Vote on the Motion to approve Recommended Zoning Commission Motion: Having reviewed and
considered the staff report, application materials, public comment, and all information presented, I hereby
adopt the findings presented in the staff report for application 21186 and move to recommend approval
of the Davis and Westlake Annexation Zone Map Amendment, with contingencies required to complete
the application processing. The Motion carried 3 - 0
Approve:
Mark Genito
George Thompson
Christopher Scott
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 6 of 8
Disapprove:
None
E.4 01:33:01 Lot 5C, Annie Subdivision Phase 2 Zone Map Amendment to rezone two
existing parcels from R-4 (Residential High Density) to R-5 (Residential Mixed-use High
Density) on 3.492 acres, Application 21172.
21172 Lot 5C ZC SR.pdf
1.0 A1 - Development Review Application 04-20-2021 - Signed.pdf
2.0 Zone Map Amendment Narrative - 05-18-2021.pdf
4.0 ZMA Map 05-10-2021.pdf
1.2 City Adjoiners -Annie Subd. Ph 2 04-26-2021.pdf
01:33:26 Staff Presentation
Planner Rogers presented the Lot 5C Annie Subdivision Phase 2 Zone Map Amendment to the Board and
recommended that the application met criteria of approval.
01:40:19 Board Questions
Board members did not have questions for staff.
01:40:33 Applicant Presentation
Ethan Cote of C & H Engineers presented on behalf of the applicant.
01:41:15 Board Questions
Board members directed questions to the applicant.
01:45:43 Public Comment Opportunity.
No Public Comments at this time.
01:46:26 Board Discussion
01:46:54 Motion Having reviewed and considered the staff report, application materials, public
comment, and all information presented, I hereby adopt the findings presented in the staff report for
application 21172 and move to recommend approval of the Lot 5C, Annie Subdivision Phase 2 Zone Map
Amendment, with contingencies required to complete the application processing.
George Thompson: Motion
Nicole Olmstead: 2nd
Board member Thompson spoke to his motion.
Board member Olmstead commented that she will not be in support of the motion.
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 7 of 8
Chairman Scott spoke in favor of the motion and adopted the staff findings as his own.
Board member Genito commented that he will be supporting the motion.
Commissioner Madgic commented that the applicant should provide a more thorough presentation for
the City Commission.
01:57:37 Vote on the Motion to approve Having reviewed and considered the staff report, application
materials, public comment, and all information presented, I hereby adopt the findings presented in the
staff report for application 21172 and move to recommend approval of the Lot 5C, Annie Subdivision Phase
2 Zone Map Amendment, with contingencies required to complete the application processing. The Motion
failed 2 - 2
Approve:
Mark Genito
Christopher Scott
Disapprove:
Nicole Olmstead
George Thompson
F) 01:58:21 FYI/Discussion
Staff Liaison Rogers informed the Board Members of the next board meeting.
Chairman Scott inquired about in-person meetings.
Commissioner Madgic informed the Board that this would be Board member Thompson's final board
meeting.
G) 02:04:11 Adjournment
For more information please contact Tom Rogers at trogers@bozeman.net. This board generally meets
the 2nd and 4th Monday of each month from 6:00 PM to 8:00 PM
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Bozeman City Commission Meeting Minutes, 8-23-21
Page 8 of 8
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Memorandum
REPORT TO:Zoning Commission
FROM:Anna Saverud, Assistant City Attorney
SUBJECT:Application 21360 Marijuana Zone Text Amendments
MEETING DATE:October 11, 2021
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:Having reviewed and considered the staff report, application materials,
public comment, and all information presented, I hereby adopt the findings
presented in the staff report for application 21360 and move to recommend
approval of Section 4 of Ordinance 2084.
STRATEGIC PLAN:3.1 Public Safety: Support high quality public safety programs, emergency
preparedness, facilities, and leadership.
BACKGROUND:
In November 2020, Montanans voted to approve I-190 and CI 118 which
legalized recreational marijuana use for those 21 years or older. I-190
contained, amongst other provisions, the framework and regulations for the
cultivation and sale of recreational marijuana in Montana. During the 2021
Montana Legislative Session, House Bill 701 became the omnibus marijuana
bill which amended and replaced much of I-190 and created the Montana
Marijuana Regulation and Taxation Action codified in Title 16, Chapter 12,
MCA.
The Bozeman Municipal Code in 38.360.180 regulates medical marijuana
businesses operating within the city. Given the change in state law, the City
Manager requested staff initiate zone text amendments to 38.360.180 as
part of a larger rewrite of regulations related to marijuana in Bozeman. The
Zoning Commission has been provided a proposed draft of Ordinance 2084
in its entirety to assist the Zoning Commission in its interpretation of Section
4 of the Ordinance. Section 4 is the only part of Ordinance 2084 with zone
text amendments and thus the only part before the Zoning Commission for
review and consideration.
The proposed zone text amendments would revise 38.360.180 to have the
provisions apply to all marijuana businesses licensed by the state and by the
city to operate within the city limits. The zone text amendments do the
following:
Regulate all marijuana businesses the same regardless of if the
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business is engaged in medical marijuana or if the business is engaged
in recreational marijuana – no distinction would be made between the
two.
Increase the distance a marijuana business must be away from a
school to meet and slightly exceed state requirements.
Add distances a marijuana business must be away from postsecondary
schools and churches, synagogues, and other places of worship to
meet and slightly exceed state requirements.
Allow for existing medical marijuana businesses that may not comply
with the increased distance requirements to be grandfathered in.
Require forced air vent discharge that provides a mechanical filtration
system to control discharges of particulates and odors for all
marijuana cultivation, growing, manufacturing or process operations.
The above changes are the substantive edits to Section 38 and the only zone
text amendments contained in Ordinance 2084. If the City Commission
adopts Ordinance 2084 it will take effect 30 days after final adoption.
UNRESOLVED ISSUES:None anticipated
ALTERNATIVES:Recommend amendments to Ordinance 2084 Section 4 including but not
limited to modifications to separation requirements from schools and places
of worship.
FISCAL EFFECTS:None.
Attachments:
21360 Staff Report for the Marijuana Text Amendment.pdf
ORDINANCE NO 2084.pdf
Report compiled on: October 6, 2021
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Page 1 of 9
21360 Staff Report for the Marijuana Text Amendment, Sec. 4 of Ordinance
2084
Public Hearings: Zoning Commission – October 11, 2021.
City Commission – October 19, 2021.
Project Description: Zone text amendment revising the restrictions on where a medical
marijuana businesses may be located and including provisions for recreational
marijuana businesses pursuant to the Montana Marijuana Regulation and Taxation Act.
This zone text amendment is Section 4 of Ordinance 2084 set for provisional adoption
by the City Commission on October 19, 2021. The full proposed text of Ordinance
2084 is attached for reference.
Project Location: These zone text amendments apply to all marijuana businesses city wide
where permitted by applicable zoning.
Recommendation: Approval
Zoning Commission Motion: Having reviewed and considered the staff report, application
materials, public comment, and all information presented, I hereby adopt the findings
presented in the staff report for application 21360 and move to recommend approval
of Section 4 of Ordinance 2084.
Recommended City Commission Motion: Having reviewed and considered the staff report,
application materials, public comment, and all information presented, I hereby adopt
the findings presented in the staff report for application 21360, and move to
provisionally adopt Ordinance 2084.
Report: October 6, 2021
Staff Contact: Anna Saverud, Assistant City Attorney
Agenda Item Type: Action – Legislative
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Staff Report Marijuana Text Amendment 21360 Page 2 of 9
TABLE OF CONTENTS
EXECUTIVE SUMMARY ...................................................................................................... 2
Project Summary ................................................................................................................. 3
Unresolved Issues ............................................................................................................... 3
Strategic Plan ...................................................................................................................... 3
Zoning Commission ............................................................................................................ 4
Alternatives ......................................................................................................................... 4
SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 4
SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ....................... 4
Section 76-2-304, MCA (Zoning) Criteria ......................................................................... 5
PROTEST NOTICE FOR ZONING AMENDMENTS ........................................................... 7
APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND ................ 7
APPENDIX B - NOTICING AND PUBLIC COMMENT ...................................................... 8
APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF ...................... 8
FISCAL EFFECTS ................................................................................................................... 9
ATTACHMENTS ..................................................................................................................... 9
EXECUTIVE SUMMARY
Project Summary
In November 2020, Montanans voted to approve I-190 and CI 118 which legalized recreational
marijuana use for those 21 years or older. I-190 contained, amongst other provisions, the
framework and regulations for the cultivation and sale of recreational marijuana in Montana.
During the 2021 Montana Legislative Session, House Bill 701 became the omnibus marijuana
bill which amended and replaced much of I-190 and created the Montana Marijuana Regulation
and Taxation Action codified in Title 16, Chapter 12, MCA.
The Bozeman Municipal Code in 38.360.180 regulates medical marijuana businesses operating
within the city. Given the change in state law, the City Manager requested staff initiate zone
text amendments to 38.360.180 as part of a larger rewrite of regulations related to marijuana
in Bozeman. The Zoning Commission has been provided a proposed draft of Ordinance 2084
in its entirety to assist the Zoning Commission in its interpretation of Section 4 of the
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Staff Report Marijuana Text Amendment 21360 Page 3 of 9
Ordinance. Section 4 is the only part of Ordinance 2084 with zone text amendments and thus
the only part before the Zoning Commission for review and consideration.
The proposed zone text amendments would revise 38.360.180 to have the provisions apply to
all marijuana businesses licensed by the state and by the city to operate within the city limits.
The zone text amendments do the following:
- Regulate all marijuana businesses the same regardless of if the business is engaged in
medical marijuana or if the business is engaged in recreational marijuana – no
distinction would be made between the two.
- Increase the distance a marijuana business must be away from a school to meet and
slightly exceed state requirements.
- Add distances a marijuana business must be away from postsecondary schools and
churches, synagogues, and other places of worship to meet and slightly exceed state
requirements.
- Allow for existing medical marijuana businesses that may not comply with the
increased distance requirements to be grandfathered in.
- Require forced air vent discharge that provides a mechanical filtration system to control
discharges of particulates and odors for all marijuana cultivation, growing,
manufacturing or process operations.
The above changes are the substantive edits to Section 38 and the only zone text amendments
contained in Ordinance 2084. If the City Commission adopts Ordinance 2084 it will take effect
30 days after final adoption.
Unresolved Issues
None identified at this time.
Strategic Plan
2.1 Business Growth
Support retention and growth of both the traded and local business sectors while welcoming
and encouraging new and existing businesses, in coordination with the Economic
Development Plan.
3.1 Public Safety
Support high quality public safety programs, emergency preparedness, facilities, and
leadership.
4.2 High Quality Urban Approach
Continue to support high-quality planning, ranging from building design to neighborhood
layouts, while pursuing urban approaches to issues such as multimodal transportation,
infill, density, connected trails and parks, and walkable neighborhoods.
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Staff Report Marijuana Text Amendment 21360 Page 4 of 9
4.4 Vibrant Downtown, Districts & Centers
Promote a healthy, vibrant Downtown, Midtown, and other commercial districts and
neighborhood centers – including higher densities and intensification of use in these key
areas
Zoning Commission
The Zoning Commission will hold a public hearing on October 11, 2021 at 6:00 p.m. using
WebEx.
No public comment has been received as of the writing of this report.
Alternatives
1. Recommend denial of Ordinance 2084 Section 4 based on findings of non-compliance with
the applicable criteria contained within the staff report; or
2. Recommend amendments to Ordinance 2084 Section 4 including but not limited to
modifications to separation requirements from schools and places of worship; or
3. Open and continue the public hearing on the application, with specific direction to staff to
supply additional information or to address specific concerns related to Ordinance 2084
Section 4.
SECTION 2 - RECOMMENDATION AND FUTURE ACTIONS
Having considered the criteria established for a text amendment, the Staff recommends approval
as proposed.
The Zoning Commission will hold a public hearing on October 11, 2021 at 6:00 p.m.
The City Commission will hold a public hearing on the text amendment on October 19, 2021 at
6:00 p.m.
SECTION 3 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS
In considering applications for approval under this title, the advisory boards and City Commission
must consider the following criteria. As an amendment is a legislative action, the Commission has
broad latitude to determine a policy direction.
In considering the following criteria, the analysis must show that the amendment accomplishes
zoning criteria A-D. Zoning criteria E-K must be considered and may be found to be affirmative,
neutral, or negative. The Zoning Commission’s favorable decision on the proposed application
must find that the application meets all of criteria A-D and that the positive outcomes of the
amendment outweigh negative outcomes for criteria E-K.
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Staff Report Marijuana Text Amendment 21360 Page 5 of 9
Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy.
Yes. The proposed zone text amendments are the result of a societal shift in how the public
views marijuana and subsequent changes in state law. Marijuana is not specifically discussed
in the Bozeman Community Plan 2020, however the proposed amendments are not in conflict
with the plan and take into account compatible land uses, economic development, and
community development patterns. The policy of how the city allows recreational marijuana is
premised off of the decade of experience the city has regulating medical marijuana and state
law. The proposed amendments does not change the zoning map and therefore, it is
unnecessary to analyze compliance with the future land use map.
While not specifically addressing marijuana the proposed amendments do meet the spirit of
various themes of the Bozeman Community Plan including the following:
Theme 6 addresses economic development – specifically as a city we desire to be a city
powered by its creative, innovative and entrepreneurial economy. By strategically and
specifically prohibiting where a marijuana business may not be located, the city is also clearly
showing where these businesses are welcome in our city encouraging business growth and job
opportunities.
Theme 7 addresses regional coordination. The city’s adoption of clear zoning regulation for
marijuana businesses ensures coordination with the state and the Department of Revenue who
will review all requests for state marijuana licenses against the city’s code for compliance.
Additionally, the recreational marijuana industry will occur in Gallatin County and by not
excluding it from the city limits we avoid stark contrasts of regulations for city/county
residents.
B. Secure safety from fire and other dangers.
Yes. All applicable development standards and building codes will apply to marijuana
businesses on a given property. Building and fire standards and codes are designed to mitigate
impacts, provide a safe environment, and protect from fire and other dangers. The City has
extensive experience with these standards and monitors and amends standards as needed. The
standards meet this criterion.
C. Promote public health, public safety, and general welfare.
Yes. The essential standards for provision of public services such as water and sewer are not
modified by these amendments. State law requires a marijuana business not be within 500 feet
of and not on the same street as a school, postsecondary school, church, synagogue, or other
place of worship. State law provides this 500 feet measurement be from the entrances of the
establishments. State law specifically provides authority to a local government to increase the
distance between marijuana businesses and these locations. The proposed amendments are
slightly more restrictive than the state standards and prohibit marijuana businesses within 500
18
Staff Report Marijuana Text Amendment 21360 Page 6 of 9
feet of the property line of a school, postsecondary school, church, synagogue, or other place
of worship. This is a much simpler standard to apply for both applicants and city staff. For
any marijuana business to operate, all state requirements for licensure must be met and in
addition, annual marijuana business licenses are proposed to be required in Ordinance 2084.
The amendments modify the ventilation requirements previously established for marijuana
businesses only to the extent that as proposed, ventilation systems would be required for all
marijuana businesses engaged in marijuana cultivation, growing, manufacturing, or processing
and the requirement is no longer triggered by a certain number of plants.
This criterion is met.
D. Facilitate the provision of transportation, water, sewerage, schools, parks
and other public requirements.
Yes. Standards for provisions of public facilities are not being altered. Any proposed business
falling under this use classification will be required to meet all other applicable standards for
transportation, water and sewer utilities.
The criterion is met.
E. Reasonable provision of adequate light and air.
Yes. Standards for setbacks, building design, etc. are not being altered. Certain types of
marijuana businesses will be required to install proper ventilation systems and all will be
subject to building codes that further support delivery of adequate light and air.
The criterion is met.
F. The effect on motorized and non-motorized transportation systems.
Neutral. The proposed text amendments do not directly impact motorized and non-motorized
transportation systems. By prohibiting marijuana businesses on properties adjacent to Main
Street within the core area of the B3 zoning district, motorized traffic and parking demands in
the downtown should not be negatively impacted.
G. Promotion of compatible urban growth.
Yes. The amendments promote the continued growth of the City and do not disrupt existing
standards for development that support managed, thoughtful urban growth. The amendments
do not expand the City’s boundaries or alter the essential character of any existing zoning
district.
H. Character of the district.
Yes. All zoning districts provide for a variety of principal and conditional uses. Those uses
vary by district. The uses range in intensity and likely size. No single use defines the entirety
of any zoning district. The location of where a particular type of marijuana businesses is
permitted is based on the underlying nature of business and will be approved only in applicable
zones. In maintaining the character of existing districts, the specific zones where it is
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Staff Report Marijuana Text Amendment 21360 Page 7 of 9
recommended marijuana businesses be restricted are a continuation of those which citizens are
familiar having been in place for a decade.
Therefore, this criterion is met.
I. Peculiar suitability for particular uses.
Neutral. No changes to the zoning boundaries are proposed with these amendments. The
location of zoning districts has previously been found to be appropriate. The authorized use
tables have been reviewed for consistency with the intent and purpose of individual districts
and found to be appropriate.
J. Conserving the value of buildings.
Neutral. Building design and community designed standards along with other provisions in
the municipal code require buildings to be maintained in a safe and secure condition to avoid
decay and public hazards and are designed to conserve the value of buildings.
K. Encourage the most appropriate use of land throughout the jurisdictional area.
Yes. No changes to the zoning boundaries are proposed with these amendments. The uses
authorized in the use tables for each district are consistent with the district purpose.
PROTEST NOTICE FOR ZONING AMENDMENTS
IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A
PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT
BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION.
For this text amendment application the applicable calculation of protesting owners would include
all owners of all properties in all districts of the City for issues affecting the entire city such as
review processes and generally applicable standards. For issues affecting a defined subsection of
the city such as an individual zoning district the calculation of protesting owners would include all
owners within the affected area.
As of the writing of this report, no written protest against the changes have been received.
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Staff Report Marijuana Text Amendment 21360 Page 8 of 9
APPENDIX A - DETAILED PROJECT DESCRIPTION AND
BACKGROUND
As described in the executive summary following the passage of Constitutional Initiative 118 and
Initiative 190 in November 2020, and subsequently the passage of House Bill 701 during the 2021
Montana Legislative Session, the City Manager directed staff to prepare text amendments
described in this report and attached as Section 4 of Ordinance No. 2084. Currently Section
38.360.180, BMC regulates where medical marijuana businesses may operate within the city
limits. This includes restricting medical marijuana businesses from being within 400 feet of the
property boundary of a school.
Recreational marijuana use is now legal in the State of Montana, and beginning in January 2022
the sale of recreational marijuana and marijuana products along with the cultivation,
manufacturing, testing, and transporting of recreational marijuana will be legal. Pursuant to House
Bill 701 a marijuana business is prohibited from being within 500 feet of and on the same street
as a building used exclusively as a church, synagogue, or other place of worship or as a school or
postsecondary school other than a commercially operated school, unless the locality requires a
greater distance. State law specifies that the distance is measured in a straight line from the center
of the nearest entrance of the place of worship or school to the nearest entrance of the marijuana
businesses premises. It is staff’s recommendation to require a slightly greater distance of
separation by prohibiting a marijuana businesses from being within 500 feet from the property
boundary of a church, synagogue, or other place of worship or of a school or postsecondary school.
This proposal is recommended for both policy reasons and implementation practicalities.
Additional edits to 38.360.180 remove provisions no longer applicable given the legalization of
marijuana and revise the ventilation requirements to reflect changes in marijuana laws and the
more urban nature of development in Bozeman.
APPENDIX B - NOTICING AND PUBLIC COMMENT
Notice for text amendments must meet the standards of 38.220.410 & 420. Notice was
published in the Bozeman Daily Chronicle as required and contained all required elements.
Notice was provided at least 15 days before the Zoning Commission public hearing, and not
more than 45 days prior to the City Commission public hearing. The City exceeded the required
notice provision. Hearing dates are on the first page of this report.
No written public comment has been received as of the writing of this report.
APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF
Applicant: City of Bozeman, PO Box 1230, Bozeman MT 59771
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Staff Report Marijuana Text Amendment 21360 Page 9 of 9
Representative: Jeff Mihelich, City Manager, City of Bozeman, PO Box 1230, Bozeman
MT 59771
Report By: Anna Saverud, Assistant City Attorney
FISCAL EFFECTS
No unusual fiscal effects have been identified. No presently budgeted funds will be changed
by this Amendment. Fees for marijuana business licenses will be set by Resolution.
ATTACHMENTS
The full application and file of record can be viewed at the Community Development
Department at 20 E. Olive Street, Bozeman, MT 59715.
Ordinance 2084
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Page 1 of 14
ORDINANCE NO. 2084
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA GENERALLY REVISING LAWS AND REGULATIONS RELATED TO
MARIJUANA AND THE MONTANA MARIJUANA REGULATION AND TAXATION
ACT.
WHEREAS, the City of Bozeman (the “City”) is authorized by the City Charter and
Montana law to establish programs and laws to protect public the health, safety and welfare of the
citizens of Bozeman; and
WHEREAS, pursuant to its Charter, the Montana Constitution, and state law, the City may
exercise any power not prohibited by the constitution, law or charter and neither the Montana
Constitution, state law, or the City Charter prohibits the City Commission from adopting this
Ordinance; and
WHEREAS, Title 7, Chpt. 5, Part 1, Montana Code Annotated (MCA), provides standards
and procedures for adoption of local ordinances; and
WHEREAS, Title 76, Chpt. 2, Part 3, MCA, authorizes municipalities to enact zoning to
regulate the use and development of land and the activities of individuals and businesses within its
boundaries subject to certain standards of procedure; and
WHEREAS, the citizens of the State of Montana voted to approve Constitutional Initiative
118 and Initiative No. 190 (I-190) in November 2020, which became effective January 1, 2021
and legalized recreational marijuana use and limited possession for adults over the age of 21 and
provided a framework for commercial licensing, taxation, decriminalization and expungement of
criminal convictions related to marijuana amongst other provisions; and
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Page 2 of 14
WHEREAS, the Montana Legislature passed, and Governor Gianforte signed into law,
House Bill 701 (“HB 701”) which revised, amended and supplemented the text of I-190 and
established the Montana Regulation and Taxation Act (16-12-101, MCA et seq. (the “Act”)); and
WHEREAS, a codified purpose of the Act pursuant to Section 37 amending Section 16-
12-101(2(j), MCA is to provide local governments authority to allow for the operation of marijuana
businesses in their community and establish standards for the cultivation, manufacture, and sale of
marijuana that protect the public health, safety, and welfare of residents within their jurisdictions;
and
WHEREAS, Section 59 of the Act pursuant to Section 16-12-301, MCA, provides that to
protect the public health, safety, or welfare, a local government may by ordinance or otherwise
regulate a marijuana business that operates within the local government’s jurisdictional area; and
WHEREAS, Section 54 of the Act pursuant to Section 16-12-207, MCA, provides a
locality may require marijuana businesses be a greater distance from schools and places of worship
then required by state law; and
WHEREAS, the City Commission understands the need to create specific provisions
related to the licensing of marijuana businesses to ensure those businesses and their employees are
in full conformance with the Act and the Bozeman Municipal Code; and
WHEREAS, the City Commission reviewed and considered the relevant Unified
Development (UDC) text amendment criteria established by Title 76, Chpt. 2, Part 3, MCA and
found the proposed UDC text amendments to be in compliance with the purposes of zoning as
locally adopted in Section 38.100.040, BMC; and
WHEREAS, at its public hearing, the City Commission found that the proposed UDC text
amendments would be in compliance with Bozeman’s adopted growth policy and applicable
statutes and would be in the public interest; and
WHEREAS, marijuana continues to be classified as a Schedule I narcotic under the federal
Controlled Substances Act and under Sec. 50-32-222, MCA, such that the cultivation, distribution,
and possession of marijuana, except as provided for in the Act, constitutes criminal activity; and
WHEREAS, the City Commission finds a legitimate governmental interest in regulating
the locations where a marijuana business may be located and in licensing marijuana businesses
and in doing so confirming such locations are in compatible zoning districts and adequately
distanced from schools and places of worship to protect the general health, safety or welfare of the
citizens of Bozeman.
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Page 3 of 14
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That the entirety of current Chapter 16, Article 8 of the Bozeman Municipal Code shall
repealed and replaced with the following:
Article 8: Marijuana
Division 1. Generally
Sec. 16.08.150. – Purpose; Applicability; failure to maintain state licensure
A. The purpose of this article is to implement the provisions of the Montana Marijuana
Regulation and Taxation Act (MCA 16-12-101 et seq. (the “Act”)). The provisions of this
article shall apply to all marijuana business within the city, including both medical and
recreational marijuana cultivation, manufacturing, transporting, testing and dispensaries,
unless otherwise stated herein.
B. Any individual or entity licensed under this article to conduct any marijuana business, in
addition to the requirements of this article, is subject to all other requirements of this code,
the Act, and any applicable administrative rules established by the state or city. Should
such rules or laws change, any person or entity licensed under this article shall
immediately come into compliance with any newly adopted rules.
C. Notwithstanding the above, nothing in this code shall be construed to authorize any
individual or entity to perform any act or conduct any enterprise not in conformance with
state law.
D. Compliance with this code does not shield any person, corporation, or other legal entity
from the requirements of, or enforcement by, other governing entities, or from civil
liabilities.
E. Each individual or entity issued a license under this article shall at all times maintain
authorization from the state to acquire, possess, cultivate, manufacture, deliver,
transfer, test, transport, dispense or sell marijuana. Failure to maintain applicable
licensure(s) with the state is cause for immediate suspension of a license issued under
this article, may be cause for revocation resulting in a moratorium on an individual or
entity’s ability to engage in marijuana business, and may be cause for criminal
prosecution as provided by law.
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Page 4 of 14
Sec. 16.08.160. - Incorporation of state law
For the purposes of this article, words, phrases and expressions, not otherwise defined below, are
subject to the definitions set forth in 16-12-102, MCA. The provisions of state code and any rules
or regulations promulgated thereunder are incorporated herein by reference except to the extent
that more restrictive or additional regulations are set forth in this article.
Sec. 16.08.170. – Definitions
The following words, terms and phrases, when used in this article, shall have the meanings
ascribed to them in this section.
A. “Adult-use dispensary” means a premises licensed by the state from which
marijuana or marijuana products may be sold and obtained by registered cardholders,
persons 21 years of age or older, or both.
B. “Cultivator” means a person licensed by the state to plant, cultivate, grow, harvest,
and dry marijuana; or a person licensed by the state to package and relabel marijuana
produced at the location in a natural or naturally dried form that has not been converted,
concentrated, or compounded for sale though a licensed dispensary.
C. “Dispensary” means both an adult-use dispensary and/or a medical marijuana
dispensary.
D. “Licensee” means a person holding a state license issued pursuant to state law and a
city marijuana license.
E. “Manufacturer” means a person licensed by the state to convert or compound
marijuana into marijuana products, marijuana concentrates, or marijuana extracts and
package, repackage, label, or relabel marijuana products as allowed under state law and
this article.
F. “Marijuana” means all plant material from the genus Cannabis containing
tetrahydrocannabinol (THC) or seeds of the genus capable of germination. This term
does not include hemp and its derivatives as specified in §16-12-102(20)(b) or (c), MCA.
G. “Marijuana business” means a cultivator, manufacturer, adult-use dispensary, medical
marijuana dispensary, combined-use marijuana licensee, testing laboratory, marijuana
transporter, or any other business or function that is licensed by the state and city.
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Page 5 of 14
H. “Marijuana product” means a product that contains marijuana and is intended for use
by a consumer by a means other than smoking. The term includes but is not limited to
edible products, ointments, tinctures, marijuana derivatives, and marijuana concentrates.
I. “Medical marijuana” means marijuana or marijuana products that are for sale solely
to a cardholder who is registered with the state.
J. “Medical marijuana dispensary” means the location from which a registered
cardholder may obtain marijuana or marijuana products.
K. “Registered cardholder” or “cardholder” means a Montana resident with a debilitating
medical condition who has received and maintains a valid registry identification card
issued by the state.
L. “Testing laboratory” means the qualified person licensed by the state that provides
testing of representative samples of marijuana and marijuana products; and provides
information regarding the chemical composition and potency of a sample, as well as
the presence of molds, pesticides, or other contaminants in a sample.
Division 2. Licensing and Sales
Sec. 16.08.180. – License, Fees, Regulations and Procedures
A. Marijuana License required. Any individual or entity desiring to operate a marijuana business
within the city must first obtain, and at all times while operating have, a marijuana license issued
by the city. No separate business license is required by the city; all requirements are contained in
this article. Applications should be submitted for approval to the Director of Community
Development.
A person or entity desiring to engage in a marijuana business within the city must, along with an
application for a city marijuana license, submit a copy of their state license(s) for the marijuana
business. If an applicant does not yet have a state license, conditional approval that the proposed
marijuana business meets the requirements of chapter 38 of this code may be issued by the city. A
marijuana business may not begin growing, manufacturing, testing, transporting, dispensing or
otherwise selling marijuana or marijuana products without a state license and final marijuana
license approved by the city.
B. Types of marijuana businesses permitted in the city. Marijuana licenses are available for the
following types of marijuana businesses permitted by the state within the city: canopy,
manufacturing, transporting, dispensary, and testing. All marijuana businesses are subject to state
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law, the provisions set forth below, and applicable zoning provisions in chapter 38 of this code,
including but not limited to, the provisions set forth in 38.360.180.
1. Marijuana Canopy License: Any cultivator licensed by the state must have a city
issued canopy license. Only indoor cultivation is permitted within the city. Marijuana
plants may not be visible by normal, unaided vision from a public place. All marijuana
plants must be housed in a secured and locked space.
2. Marijuana Manufacturing License: Any manufacturer licensed by the state
must have a city marijuana manufacturing license.
3. Marijuana Dispensary License: A marijuana dispensary license is required for all
dispensaries. No on premise consumption or smoking of marijuana or marijuana
products is permitted at a dispensary located within the city.
4. Marijuana Testing License: Any testing laboratory licensed by the state and located
within the city is required to obtain a city marijuana testing license. Testing
laboratories located outside the city but obtaining samples and testing marijuana and
marijuana products obtained within the city limits are not required to obtain a marijuana
testing license.
5. Transporting Marijuana License: Any individual or entity licensed by the state that
as a business, provides any logistics, distribution, delivery, or storage of marijuana
and marijuana products with the city limits must obtain a city marijuana transporters
license. No marijuana or marijuana products may be stored at the transporters
residence where commercial activity is prohibited by applicable zoning and or
prohibited by home based business requirements. A marijuana transporter who obtains
a licensed premises in which to temporarily store marijuana or marijuana products must
disclose so on the application to the city, and ensure the location meets all state and
location regulations. No separate license is needed for the storage premises. Delivery
of marijuana and marijuana products is permitted between one or more legally
licensed marijuana businesses or to registered medical marijuana cardholders.
C. Fee. Marijuana license fees and allocation of fees shall be established by resolution of the city
commission.
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Sec. 16.08.190 – Administrative procedures; Application requirements.
The Director of Community Development may adopt and from time to time amend,
administrative procedures to implement this article. Administrative procedures may include, but
are not limited to, determining necessary information required for applications, determining an
orderly transition for medical marijuana businesses currently licensed by the city prior to the
[effective date of ordinance], and any application revisions or administrative procedures
necessary in order effectuate the provisions of this article.
Sec. 16.08.200. – Renewal, multiple establishments, multiple types of marijuana businesses,
transfer.
A. Annual Renewal. Licenses issued under this article must be renewed annually.
B. Separate license for multiple establishments. A license must be obtained in the manner
prescribed herein for each branch establishment or location of a marijuana business, as if each such
branch establishment or location were a separate business.
C. Single license required for multiple marijuana business activities occurring at same location
with same owner. A separate city marijuana license is not required for each type of marijuana
business occurring at the same location, so long as the operations belong to and are controlled by
the same legal entity for each marijuana businesses. Applicants seeking a city marijuana license
who engage in two or more marijuana businesses at the same location must disclose the various
marijuana business that will occur at the location, and must provide proof of applicable state
licensures for each marijuana business and ensure compliance with chapter 38 of this code prior
to conducting any marijuana business within the city.
D. Change of location. A licensed marijuana business may change the location of the licensed
business provided that the licensee shall comply with zoning, building, engineering, and fire
regulations. A change in location requires a new marijuana business license application and fee
be submitted for approval.
E. No transfer of license. City marijuana licenses may not be transferred. Any change in
ownership requires a new city license be obtained in the manner prescribed herein.
F. No license required. No marijuana license is required for individuals or businesses engaged in
professional activities related to marijuana businesses whose work occurs in premises where
marijuana or marijuana products are not physically present or handled, including but not limit a
duly licensed medical doctor who reviews a person's medical condition for purposes of
recommending medical marijuana and who does not provide marijuana to a registered
cardholder. No marijuana license is required for those who pass through or enter into the city
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Page 8 of 14
within the scope and course of their employment related to marijuana business but who do not
conduct their operations or business in the city.
Sec. 16.08.210. – Denial, Suspension, or Revocation of marijuana business licensure
A. The City may deny, suspend, or revoke a license for a marijuana business if the city has
reasonable cause to believe the licensee has, or the issuance of the city license to the licensee
would, violate a provision of this code or state law. The City Manager may suspend or revoke any
marijuana license if it learns a licensee’s state license(s) have been suspended or revoked. A
licensee’s city marijuana license shall remain suspended until a final adjudication on the state
license, including any penalty imposed by the state has been satisfied and the state license is
reinstated. While a license is suspended or revoked, a marijuana business is prohibited from
engaging in marijuana business within the city. A marijuana business operating without a license
may result in criminal prosecution under Title 45, MCA.
B. An applicant may appeal any decision of the city to deny, suspend, or revoke a marijuana
business license provided for by this chapter to the 18th Judicial District Court. An appeal must be
made by filing a complaint setting forth the grounds for relief and the nature of relief demanded
with the district court within 30 days following receipt of notice of the city’s final decision.
Sec. 16.08.220. – Inspection.
As a condition of receiving a marijuana business license under this article, a city employee,
including but not limited to all police, fire, building inspectors, city engineers, zoning officials,
and other employees or officials designated by the city manager, may without notice during
normal business hours inspect any premises under license pursuant to this article to determine
compliance with the Act and any other state or local regulations. All persons authorized herein
to inspect licensees and businesses shall have the authority to enter, with or without search
warrant, during normal business hours, premises which require a marijuana business license,
premises holding a marijuana business license, and premises for which the marijuana business
license has been suspended or revoked.
Sec. 16.08.230. State law superseded and applicable.
The provisions of this article shall supersede the Act in so far as this division expands the
limitations on the use of marijuana authorized under by the Act. All other provisions of state law
related to marijuana shall be applicable.
Sec. 16.08.240. No private right of action.
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Page 9 of 14
Nothing in this article shall be construed to create a private right of action regarding the acquisition,
possession, cultivation, manufacture, delivery, transfer, transport, sale or dispensing of marijuana.
Section 2
That Chapter 12 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Sec. 12.01.010. – Definitions.
A. The following words, terms and phrases, when used in this chapter and other related
regulations in this Code, shall have the meanings ascribed to them in this section, except
where the context clearly indicates a different meaning:
7. "Marijuana" and "usable marijuana" have the meanings as defined in the Montana
Marijuana Act (MCA 50-46-301 et seq.).
8. "Marijuana" means the uses of marijuana as authorized pursuant to and defined in the
Montana Marijuana Act (MCA 50-46-301 et seq.).
Sec. 12.02.040. Exemptions.
F. The exemptions listed in subsections A, B, C, D and E of this section do not apply to a
transaction, use, or business involving marijuana.
Section 3
That Chapter 34 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Section 34.07.040. Advertising standard.
14. Advertisements that portray or depict any activities, products, or services related to
marijuana as authorized pursuant to and defined in the Montana Marijuana Act (MCA
50-46-301 et seq.).
Section 4
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Page 10 of 14
That Chapter 38 of the Bozeman Municipal Code shall be amended as follows and any
sections not amended herein shall remain in effect:
Section 38.360.180 Medical marijuana Marijuana.
A. Any activity involving a marijuana business a medical marijuana as defined in chapter 16 of
this code must meet all requirements of state law including, but not limited to, the standards
of title 16, chapter 12, title 50, chapter 46 Montana Code Annotated (MCA 16-12-101 et seq.),
and limits on possession, clean air, etc., and any applicable administrative rules established
by the state. Should such rules or laws change, any medical marijuana business facility must
immediately begin any required process to come into compliance with the new rules. This
includes submittal for review of applications to the city as they may relate to zoning, business
licensing, or other municipal requirements programs. Compliance with city zoning
regulations does not shield any person, corporation, or other legal entity from the
requirements of, or enforcement by, other governing entities, or from civil liabilities.
1. Unless specifically exempted, any person or existing or proposed entity intending to
conduct activities which meet the definitions of "agriculture," "manufacturing," "office"
or "retail" as established in division 38.700 of this chapter which is for the purpose of
cultivation growing, manufacturing, processing, transporting, testing, distribution, sale
and/or any other activity related to medical marijuana business must, in addition to this
section, comply with all other provisions of this cCode, and must not be located within
400 500 linear feet of the exterior property line of:
a. All schools or facilities, where students are regularly present, owned or operated by
Bozeman School District 7 whether located inside or outside the city limits; or
b. All private schools, not including home schools, where students are regularly
present, whether located inside or outside the city limits, which provide instruction in
the class range from kindergarten to 12th grade and which are either subject to MCA
20-5-109, or listed as a kindergarten provider by the county superintendent of schools.
c. The principal campus boundary of any postsecondary school defined by 20-5-402,
MCA, where students regularly attend classes. For the purposes of the Montana State
University campus, the provisions of this section apply to the main campus, a map of
which may be obtained from the Department of Community Development.
d. A building used exclusively as a church, synagogue, or other place of worship as
defined for the purposes of this section by the state.
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e. For purposes of this section, specified distances will be measured in a straight line,
without regard to intervening structures from the property line of a school,
postsecondary school, church, synagogue, or other place of worship as stated in
subsections 1.a and b - d of this section, regardless of whether those schools or places
of worship are located within the jurisdictional limits of the city, to the property line of
the marijuana business providing medical marijuana.
2. All medical marijuana businesses within the city limits that were duly licensed and
authorized to conduct medical marijuana business by the city on or before [effective date
of ordinance] are exempt from the above requirements in 38.360.180 A(1)(a-e) and may
continue to operate, including conducting businesses related to non-medical marijuana,
in the established location at the size and capacity originally licensed. Any marijuana
business that is duly licensed by the state and city to operate in a location and is
operational prior to a school, postsecondary school, church, synagogue, or other place
of worship establishing a location that would have precluded the marijuana business
from being licensed based on the restrictions in a-e, may continue to operate in the
established location at the size and capacity originally licensed.
3 2. Any activities meeting the definitions of "agriculture," "manufacturing," "office" or
"retail" as established in article 7 of this chapter which is for the purpose of cultivating,
growing, processing, manufacturing, testing, transporting, distribution, and/or any other
activity related to medical marijuana business where marijuana or marijuana product is
physically present may not be located in the R-4 and R-5 districts, or on properties
adjacent to Main Street within the core area of the B-3 district as defined in section
38.300.110.D.
4 3. The requirements of subsections 1 and 2 of this section do not apply to personal use or
personal growing of marijuana plants permitted by state law.
a. An individual registered qualifying patient who possesses marijuana in accordance
with the limits and requirements of title 50, chapter 46, Montana Code Annotated
(MCA 50-46-101 et seq.) solely for that qualifying patient's own use; or
b. To a caregiver providing care to not more than two qualifying patients who reside
within the same dwelling as the caregiver. The caregiver and qualifying patients must
maintain appropriate state agency qualification at all times when medical marijuana is
present.
5 4. Establishing a medical marijuana facility business may result in a change in the
designation of building code occupancy type. A change in use or occupancy type may
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require physical modifications to the structure, which must be approved by the building
division prior to any construction as required by section 38.200.100.
6 5. Air discharge control. Any medical marijuana cultivation, growing, manufacturing or
processing operation that contains 24 or more marijuana plants at any one time must
provide a forced air vent discharge point that is:
a. Located no closer than 30 feet from an adjacent property line or a residence; or
b. pProvides a mechanical filtration system to control discharges of particulates and
odors. The ventilation filtration system must be designed by a mechanical engineer
licensed to practice in the state such that odors and particulates may not be detected by
unaided human observation at the property boundary, and noise produced by the system
must be controlled and minimized.
7 6. Any person applying for making application for a zoning approval for a medical
marijuana business must provide evidence of DPHHS state licensure approval as a
caregiver at the time of application and must maintain such DPHHS state licensure
approval at all times. Failure to maintain approval any and all state licensing
requirements may immediately suspends zoning approval to operate a medical marijuana
business in the city.
8 7. These regulations are for review of applications to the city and do not restrict property
owners from establishing more stringent standards for their properties.
Section 5
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of
the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force
and effect.
Section 6
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full
force and effect.
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Section 7
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 8
Codification Instruction.
The provisions of Section 1 shall be codified as appropriate in Chapter 16 of the Bozeman
Municipal Code. The provisions of Section 2 shall be codified as appropriate in Chapter 12 of the
Bozeman Municipal Code. The provisions of Section 3 shall be codified as appropriate in Chapter
34 of the Bozeman Municipal Code. The provisions of Section 4 shall be codified as appropriate
in Chapter 38 of the Bozeman Municipal Code.
Section 9
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
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PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 19th day of October, 2021.
____________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
________________________________
GREG SULLIVAN
City Attorney
36
Memorandum
REPORT TO:Zoning Commission
FROM:Chris Saunders, Community Development Manager
Martin Matsen, Community Development Director
SUBJECT:Gallatin County Rest Home Zone Map Amendment to revise the zoning map
on 9.8 acres at 1221 Durston Road from R3 - Medium Density Residential to
R4 - High Density Residential, application 21330
MEETING DATE:October 11, 2021
AGENDA ITEM TYPE:Community Development - Legislative
RECOMMENDATION:Recommended Zoning Commission Zoning Motion: Having reviewed and
considered the staff report, application materials, public comment, and all
information presented, I hereby adopt the findings presented in the staff
report for application 21330 and move to recommend approval of the
Gallatin County Rest Home Zone Map Amendment.
STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning,
ranging from building design to neighborhood layouts, while pursuing urban
approaches to issues such as multimodal transportation, infill, density,
connected trails and parks, and walkable neighborhoods.
BACKGROUND:See the attached staff report. Application materials are available at
https://weblink.bozeman.net/WebLink/DocView.aspx?
id=255734&dbid=0&repo=BOZEMAN&cr=1.
UNRESOLVED ISSUES:None
ALTERNATIVES:See attached staff report.
FISCAL EFFECTS:None.
Attachments:
21330 GC Rest Home ZMA Staff Report ZC.pdf
Report compiled on: October 6, 2021
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Page 1 of 25
21330 Report for the Gallatin County Rest Home Zone Map Amendment
Public Hearing: Zoning Commission meeting is on October 11, 2021
City Commission meeting is on October 19, 2021
Project Description: Amendment of the City Zoning Map to rezone 9.8 acres from R3
(Residential Medium Density District) to R4 (Residential High Density District)
Project Location: 1221 Durston Road, legally described as Tract B of Certificate of Survey
2439
Recommendation: Meets standards for approval
Recommended Zoning Commission Zoning Motion: Having reviewed and considered the
staff report, application materials, public comment, and all information presented, I
hereby adopt the findings presented in the staff report for application 21330 and
move to recommend approval of the Gallatin County Rest Home Zone Map
Amendment.
Recommended City Commission Zoning Motion: Having reviewed and considered the
staff report, application materials, public comment, recommendation of the Zoning
Commission, and all information presented, I hereby adopt the findings presented in
the staff report for application 21330 and move to provisionally adopt the Gallatin
County Rest Home Zone Map Amendment.
Report: October 6, 2021
Staff Contacts: Chris Saunders, Community Development Manager
Lance Lehigh – Engineer III
Agenda Item Type: Action - Legislative
EXECUTIVE SUMMARY
This report is based on the application materials submitted and public comment received to
date.
Unresolved Issues
None identified at this time.
Project Summary
Sean O’Callaghan, representing applicant Gallatin County, seeks to amend the zoning map
designation on property at 1221 Durston Road owned by Gallatin County. The zone map
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amendment would change the zoning of 9.8 acres from R-3 (Residential Medium Density
District) to R-4 (Residential High Density District).
The Gallatin County Rest Home occupies approximately 4.1 acres of the site. The 5.7 acre
remaining area is open grassed area. There is no submitted proposal or site layout for the
future use of the site at this time, neither is one required as part of the zone map amendment
process. If the requested amendment is approved review of development will follow
appropriate processes in the future.
The area proposed to be rezoned can be adequately described solely by legal description.
Therefore, there are no contingencies of approval and the implementing ordinance has been
prepared for action by the City Commission should they choose to approve the application.
Alternatives
1. Approve the application and associated ordinance;
2. Deny the application based on the Commission’s findings of non-compliance with the
applicable criteria contained within the staff report; or
3. Open and continue the public hearing on the application, with specific direction to staff
or the applicant to supply additional information or to address specific items.
TABLE OF CONTENTS
EXECUTIVE SUMMARY ...................................................................................................... 1
Unresolved Issues ............................................................................................................... 1
Project Summary ................................................................................................................. 1
Alternatives ......................................................................................................................... 2
SECTION 1 - MAP SERIES .................................................................................................... 3
SECTION 2 - CONTINGENCIES OF ZONE MAP AMENDMENT ..................................... 6
SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 6
Zone Map Amendment ....................................................................................................... 6
SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ............. 7
Spot Zoning Criteria ......................................................................................................... 15
PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 16
APPENDIX A - NOTICING AND PUBLIC COMMENT .................................................... 17
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APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 17
APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF ............................ 24
FISCAL EFFECTS ................................................................................................................. 25
ATTACHMENTS ................................................................................................................... 25
SECTION 1 - MAP SERIES
Map 1: Project Vicinity Map
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Map 2: Project Vicinity Map – with designations from
Bozeman Community Plan 2020 Future Land Use Map
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Map 3: Project Vicinity Map with Existing Zoning designations
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Map 4: Project Vicinity Map with Multi-Modal Facilities
SECTION 2 - CONTINGENCIES OF ZONE MAP AMENDMENT
No contingencies are identified. The property can be adequately described by reference to a
recorded survey and therefore no map or metes and bounds legal description is required. As
there are no contingencies the implementing ordinance for this application will be included
with the City Commission packet.
SECTION 3 - RECOMMENDATION AND FUTURE ACTIONS
Zone Map Amendment
Having considered the criteria established for a zone map amendment, the Staff recommends
approval as submitted.
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The Development Review Committee (DRC) considered the amendment. The DRC did not
identify any infrastructure or regulatory constraints that would impede the approval of the
application.
The Zoning Commission will hold a public hearing on this ZMA on October 11, 2021 and
will forward a recommendation to the Commission on the Zone Map amendment. The
meeting will be held using WebEx, an electronic meeting system. The instructions for
connecting to WebEx will be included on the agenda available at the City’s website,
www.bozeman.net. The meeting will begin at 6 p.m.
The City Commission will hold a public hearing on the zone map amendment on October 19,
2021. The meeting will be held using WebEx, an electronic meeting system. The instructions
for connecting to WebEx will be included on the agenda available at the City’s website,
www.bozeman.net. The meeting will begin at 6 p.m.
SECTION 4 - ZONE MAP AMENDMENT STAFF ANALYSIS AND
FINDINGS
In considering applications for plan approval under this title, the advisory boards and City
Commission must consider the following criteria (letters A-K). As an amendment is a
legislative action, the Commission has broad latitude to determine a policy direction. The
burden of proof that the application should be approved lies with the applicant.
A zone map amendment must be in accordance with the growth policy (criteria A) and be
designed to secure safety from fire and other dangers (criteria B), promote public health,
public safety, and general welfare (criteria C), and facilitate the provision of transportation,
water, sewerage, schools, parks and other public requirements (criteria D). Therefore, to
approve a zone map amendment the Commission must find Criteria A-D are met.
In addition, the Commission must also consider criteria E-K, and may find the zone map
amendment to be positive, neutral, or negative with regards to these criteria. To approve the
zone map amendment, the Commission must find the positive outcomes of the amendment
outweigh negative outcomes for criteria E-K.
In determining whether the criteria are met, Staff considers the entire body of plans and
regulations for land development. Standards which prevent or mitigated negative impacts are
incorporated throughout the entire municipal code but are principally in Chapter 38, Unified
Development Code. References in the text of this report to Articles, Divisions, or in the form
XX.XXX.XXX are to the Bozeman Municipal Code.
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Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy.
Criterion met. The application was initially submitted on August 9, 2021. On November 17,
2020, the City Commission adopted a new growth policy, the Bozeman Community Plan
2020, (BCP 2020) which replaced the prior growth policy. The following review examines
the growth policy now in place and all references are to that document.
The BCP 2020, Chapter 5, p. 73-78, in the section titled Review Criteria For Zoning
Amendments And Their Application, discusses how the state required zoning criteria in 76-
2-304 MCA are applied locally. These criteria are presented and analyzed in this section of
the report. Application of the criteria varies depending on whether an amendment is for the
zoning map or for the text of Chapter 38, BMC. The first criterion for a zoning amendment is
to be in accordance with a growth policy.
Future Land Use Map
The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze
compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future
land use map. The introduction to Chapter 3 discusses the importance of the chapter.
Following are some excerpts.
“Future land use is the community’s fundamental building block. It is an illustration of
the City’s desired outcome to accommodate the complex and diverse needs of its
residents.”
“The land use map sets generalized expectations for what goes where in the community.
Each category has its own descriptions. Understanding the future land use map is not
possible without understanding the category descriptions.”
As shown on the maps in Section 1, on the excerpt of the current future land use map, the
property is designated as Urban Neighborhood
The Urban Neighborhood designation description reads:
“This category primarily includes urban density homes in a variety of types, shapes,
sizes, and intensities. Large areas of any single type of housing are discouraged. In
limited instances, an area may develop at a lower gross density due to site constraints
and/or natural features such as floodplains or steep slopes. Complementary uses such as
parks, home-based occupations, fire stations, churches, schools, and some neighborhood-
serving commerce provide activity centers for community gathering and services. The
Urban Neighborhood designation indicates that development is expected to occur within
municipal boundaries. This may require annexation prior to development.
Applying a zoning district to specific parcels sets the required and allowed density.
Higher density residential areas are encouraged to be, but are not required or restricted to,
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proximity to commercial mixed use areas to facilitate the provision of services and
employment opportunities without requiring the use of a car.”The entire future land use
map is available through the Community Development Viewer on the City’s website.
The correlation between the future land use map of the growth policy and the zoning districts
is presented in Table 4 of the BCP 2020. As shown in the following excerpt from Table 4, the
proposed R4 district is one of the implementing districts of the Urban Neighborhood
category. The full table is provided in Appendix B.
Based on the proposed zoning districts’ proper correlations with the future land use map
categories as an implementing district, the zone map amendment is in accordance with the
future land use map.
Goals and Policies
This section evaluates compliance with the goals and policies contained within the Bozeman
Community Plan 2020. The zone map amendment is found to be in accord to the BCP 2020
and implement the plan. Staff has found no conflict between the proposed zone map
amendment and the BCP 2020 and have found accordance between the amendment and the
plan. Further, approval of the application may implement the BCP 2020 by acting to further
the objectives of the plan. Approval of this proposal would be in accordance with or implement
several goals and objectives of the Community Plan.
The application materials identify several goals and objectives advanced by the application.
Staff has reviewed the material and concurs with the applicant’s assertions. Several of the noted
goals and policies appear particularly applicable including:
N-2.2 Revise the zoning map to support higher intensity residential districts near schools,
services, and transportation.
DCD-1.5 Identify underutilized sites, vacant, and undeveloped sites for possible
development or redevelopment, including evaluating possible development incentives.
The site is only partially developed and has considerable potential for additional development.
The site is across the street from Bozeman High School and within a half mile or less of several
retail and service clusters along 7th Avenue, 19th Avenue, and Oak Street.
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In addition to those identified by the applicant, Staff also finds the following policy as
applicable to this application.
DCD-2.7 Encourage the location of higher density housing and public transit routes in
proximity to one another.
The Streamline transit system Brown route is on Durston Road adjacent to the amendment site.
The City’s land use planning has for many years supported and prioritized infill development
which is defined as:
“Infill. The development or redevelopment of vacant, abandoned, or underutilized
properties within or wholly surrounded by the City, and where water, sewer, streets, and
fire protection have already been developed and are provided. Infill is located within land
subdivided for at least 35 years.”
This priority is shown in the following statements in the BCP 2020
• Infill development and redevelopment should be prioritized, but incremental compact
outward growth is a necessary part of the City’s growth. p. 20
Theme 3, Statement of importance. “The City intends to look inward by prioritizing infill.” p.
31
The amendment site is less than half developed and has potential for infill development. See
also discussion under Criterion H.
B. Secure safety from fire and other dangers.
Criterion met. The subject property is currently served by City of Bozeman Fire and Police
Departments. Future development of the property will be required to conform to all City of
Bozeman public safety, building and land use requirements, which will ensure this criterion
is met. There are no floodplains or steep slopes on the property. The zone change is unlikely
to adversely impact safety from fire and other dangers.
C. Promote public health, public safety, and general welfare.
Criterion met. City development standards included in Chapter 38, Unified Development
Code, building codes, and engineering standards all ensure that this criterion is met. Adequate
water and sewer supply and conveyance provide for public health through clean water. Rapid
and effective emergency response provides for public safety. The City’s standards ensure that
adequate services are provided prior to building construction which advances this criterion.
General welfare has been evaluated during the adoption of Chapter 38 and found to be
advanced by the adopted standards. Provision of parks, control of storm water, and other
features of the City’s development standards also advance the general welfare. Compliance
with the BCP 2020 as described in Section 6, Criterion A, shows advancement of the well-
being of the community as a whole. See also Criterion B.
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D. Facilitate the provision of transportation, water, sewerage, schools, parks
and other public requirements.
Criterion met. The BCP 2020, page 74, says the following regarding evaluation of Section
6, Criteria B, C, & D for zoning amendments:
“For a map amendment, all three of the above elements are addressed primarily by the
City’s long range facility Plans, the City’s capital improvements program, and
development standards adopted by the City. The standards set minimum sizing and flow
requirements, require dedication of parks, provision of right of way for people and
vehicles, keep development out of floodplains, and other items to address public safety,
etc. It is often difficult to assess these issues in detail on a specific site.
For example, at the time of annexation, the final intensity of development is unknown
and it may be many years before development occurs and the impacts are experienced.
The availability of other planning and development review tools must be considered
when deciding the degree of assurance needed to apply an initial zoning at annexation.”
The City conducts extensive planning for municipal transportation, water, sewer, parks, and
other facilities and services provided by the City. The adopted plans allow the City to
consider existing conditions; and identify enhancements needed to provide service to new
development. See page 19 of the BCP 2020 for a listing. The City implements these plans
through its capital improvements program (CIP). The CIP identifies individual projects,
project construction scheduling, and financing of construction for infrastructure. Private
development must demonstrate compliance with standards prior to construction. Dedication
of school facilities is not required by municipal zoning standards. However, School District 7
will have opportunity to review and comment on future development.
The application site is located within the City’s land use, transportation, parks, and utility
planning areas. Adequacy of all these public requirements is evaluated during the subdivision
and site development processes. All zoning districts in Bozeman enable a wide range of uses
and intensities. At the time of future subdivision or site plan review the need for individual
services can be more precisely determined. No subdivision or site plan is approved without
demonstration of adequate capacity.
As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of
new development until the City verifies the availability of needed infrastructure.
38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning
map indicates a judgment on the part of the city that the range of uses allowed within that
district are generally acceptable in that location. It is not a guarantee of approval for any
given use prior to the completion of the appropriate review procedure and compliance with
all of the applicable requirements and development standards of this chapter and other
applicable policies, laws and ordinances. It is also not a guarantee of immediate
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infrastructure availability or a commitment on the part of the city to bear the cost of
extending services.”
As noted, the placement of a zoning district does not commit the City to infrastructure
funding. However, the City uses its annual CIP to schedule and fund construction of public
infrastructure. The CIP is updated each fall and addresses all types of local infrastructure.
The City may choose to fund some or all of infrastructure construction when deemed
adequately beneficial to the public. The City can also support construction of infrastructure
through other tools such as special improvement districts or development reimbursement
agreements (sometimes called paybacks or latecomer agreements). This site is not included
within any such payback area.
The future development of the site for housing will require provision of mitigation for
impacts on parks, and for any use the extension of water and sewer services, and placement
of easements for telecommunication, electricity and similar dry utilities. The needs for other
public requirements will also be assessed during development review to ensure adequacy of
public requirements. There is an existing large diameter sewer main which crosses the site.
Design will need to provide for its protection and continued operation.
E. Reasonable provision of adequate light and air.
Criterion met. This criterion is not about individual preferences for a given degree of visual
openness but about preservation of public health. The R4 district provides adequate light and
air through the Bozeman Unified Development Code’s standards for park and recreation
requirements, maximum building height, lot coverage, and setback requirements.
The form and intensity standards, Division 38.320, provide minimum lot areas, lot widths, lot
coverage and maximum floor area ratios, and prescribe require minimum separation from
property lines and limits building heights. Section 38.520.030 requires building placement to
ensure access to light and air. Division 38.420 and Section 38.520.060 require dedication of
parks and on-site open spaces to meet needs of residents. The standards provide a reasonable
provision of adequate light and air.
In addition to the zoning standards, adopted building codes contain more detailed
requirements for air circulation, window placement, and building separation that further
ensure the intent of this criterion is satisfied.
F. The effect on motorized and non-motorized transportation systems.
Neutral. The site is located on Durston Road which is an arterial street. Juniper Street, a
local street, is on the north side of the site. Motor vehicle access is provided to the site from
these two facilities. In addition, the site connects to multiple sidewalks, trails, and bicycle
facilities as shown in Section 1.
The requested change in zoning from R3 to R4 will not immediately impact the motorized
and non-motorized transportation systems. The specific future land uses and intensity of
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development for the site are not yet known. In any case, development of the property will be
required to comply with transportation-related standards and reviewed for impacts on the
surrounding streets, intersections, and sidewalks, and improvements to the transportation
network to serve the site are likely through development review requirements, which will
likely improve some aspects of the overall transportation system. The site has a Walk Score of 60, a Transit score of 21, and Bike Score of 67. Average walk
score for the city as a whole is 48 out of 100. These values are provided by Walk Score, a
private organization which presents information on real estate and transportation through
walkscore.com. The algorithm which produces these numbers is proprietary. A score is not
an indication of safety or continuity of services or routes. Scores are influenced by proximity
of housing, transit, and services and expected ability, as determined by the algorithm, to meet
basic needs without using a car. Sites located on the edge of the community have lower
scores than those in the center of the community as the area is still under development and
therefore diversity of uses is less than in fully established areas. There are no adopted
development standards relating to the walk score.
The City’s adopted development standards require inclusion of pedestrian facilities in all
development. Anticipated increases in traffic cannot be reliably estimated at this time due to
the variety of possible development options under either the R3 or the R4 district. R4 does
allow a greater maximum intensity of development than R3. However, with direct access to
the arterial street network the site is capable of supporting considerable development.
G. Promotion of compatible urban growth.
Criterion met. The Bozeman Community Plan establishes a preferred and compatible
development pattern. “The land use map sets generalized expectations for what goes where
in the community… The land use categories and descriptions provide a guide for appropriate
development and redevelopment locations for civic, residential, commercial, industrial, and
other uses. The future land use designations are important because they aim to further the
vision and goals of the City through promoting sustainability, citizen and visitor safety, and a
high quality of life that will shape Bozeman’s future.” (Community Plan p. 51)
The City’s future land use map designates the properties as Urban Neighborhood. The
designation correlates with eleven zoning districts including the R4 district proposed by the
applicants. These districts were developed by the City to promote appropriate urban growth
compatible within the areas of the City as identified on the future land use map. The site has
been annexed for many years and is an infill site. The adopted development standards
mitigate reasonably foreseeable impacts. Based on the land use map designations and
correlated zoning districts in the plan and proposed by the applicants, the zone map
amendment would promote compatible urban growth.
Also see the discussion in (H) below.
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H. Character of the district.
Criterion met. Section 76-2-302, MCA says “…legislative body may divide the municipality
into districts of the number, shape, and area as are considered best suited to carry out the
purposes [promoting health, safety, morals, or the general welfare of the community] of this
part.” Emphasis added.
This proposal amends the zoning map and not the text. Therefore, no element of this
amendment modifies the standards of any zoning district. The character of the districts as
created by those standards remains intact.
As noted above, the City Commission has latitude in considering the geographical extents of a
zoning district. It is not expected that zoning freeze the character of an area in perpetuity.
Rather, it provides a structured method to consider changes to the character. There is existing
R4 adjacent to the application site on the east. Also to the east is unannexed land presently
used for agriculture. The R3, Medium Density Residential District is to the north and west. To
the south is zoned as PLI with Bozeman High School. Looking at a slightly expanded area
includes additional zoning districts of Residential Office and Residential Mixed Use High
Density (R5). A wide range of uses physically exist within these districts ranging from
individual detached homes, townhomes, apartment buildings, schools, offices, and others. See
Appendix B for a comparison of the R3 and R4 authorized uses.
The existing zoning on the site is R3, Residential Medium Density. As shown in Appendix B,
there is a great degree of similarity in the allowed uses between R3 and R4. A review of the
uses allowed in the proposed zones shows many similarities with existing and authorized uses
in the surrounding area. Any future development will be subject to the adopted standards for
building and site design. Those standards are adopted to support the ability for similar or
dissimilar uses to be close to each other without causing problems. Therefore, the change in
zoning does not appear to conflict with the character of the area.
I. Peculiar suitability for particular uses.
Neutral. Future uses for construction on the site are not finalized at this time, so the
suitability of the site for particular uses is not easily evaluated at this time. However, the
proposed R4 is consistent with the growth policy as described in Criterion A. The site has
access to municipal utilities and transportation and is near services. This favors more
intensive development however staff does not find that this set of circumstances is peculiar to
the site.
J. Conserving the value of buildings.
Criterion met. There is one building on the property, a nursing home, which the application
indicates will be retained at the site. The change to R4 would not make the existing building
out of compliance with zoning. The values of surrounding buildings are unlikely to be
impacted to a measurable degree as the site is developed according to the proposed R4
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district, because development of the site with various uses has been anticipated in the City’s
planning documents. The surrounding area has a diversity of uses which are consistent with
the uses in the proposed R4 district. Setbacks, height limits, open space requirements, and the
other development standards that will apply to future development mitigate impacts.
K. Encourage the most appropriate use of land throughout the jurisdictional
area.
Criterion met. As stated above, the Bozeman Community Plan illustrates the most appropriate
use of the land through the future land use map. This application complies with the BCP 2020
by proposing zone map amendments of districts that continue to implement the future land use
map designations. In this case, urban-scale residential and other supportive uses has been
identified by the community as the most appropriate types of development for the property.
The Unified Development Code contains standards, protections and review processes to ensure
the land is developed in ways that are appropriate to a site’s context and according to the BCP
2020.
Spot Zoning Criteria
Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The
issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme
Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd.
Of County Comm’rs, in which the Court determined that the presence of the following three
conditions generally will indicate that a given situation constitutes spot zoning, regardless of
variations in factual scenarios.
Based on the review of the following criteria, Staff concludes that this application is not Spot
Zoning.
1. Is the proposed use significantly different from the prevailing land uses in
the area?
No. This criterion includes the modifier ‘significantly.’ It is not prohibited to have uses that
are different. To satisfy this criterion, the reviewer must demonstrate a ‘significant
difference.’ As an example, in the Plains Grains LP case the change was from Agricultural to
Heavy Industrial; and in the Little case the zoning was commercial which zoning was in
conflict with the planned residential uses shown in the growth policy and existing in the
surrounding area.
As noted in Criterion A above, the proposed zoning is in accordance with the growth policy.
The current R3 is predominantly a residential district as is R4. There are some differences in
allowed uses as shown in Appendix B to this report. There are some difference in allowed
building heights but that does not change allowed uses which is the subject of this criterion.
There is not a defined distance to consider when evaluating this criterion. The proposed R4
district is adjacent to existing R4 developed property. There is another R4 zoned area two
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blocks to the north and a Residential Office (a district more intensive than R4) zoned area
one block to the northwest. Based on the similarity of uses in the R3 and R4 districts, the
proximity of other R4 zoned and developed areas, and the positive findings in the criteria
above there is not available evidence to conclude the change in zoning will negatively
deviate from surrounding land uses in a significant manner.
2. Is the area requested for the rezone rather small in terms of the number of
separate landowners benefited from the proposed change?
Yes. The application is submitted by one landowner for one tract of record. Division 38.260
Part 2 describes the process to request a zone map amendment and its review. Section
38.260.100 explicitly authorizes an individual landowner to initiate a zone map amendment.
The BCP 2020 also discusses the initiation of zone map amendments. On page 72, the
needed justification for a zone map change is discussed. It states that landowner preference,
when coupled with compliance with the criteria established in statute, is sufficient to justify
an amendment.
3. Would the change be in the nature of “special legislation” designed to benefit
only one or a few landowners at the expense of the surrounding landowners or the
general public?
No. While only one landowner would directly ‘benefit’ from the zone change, there is no
reason to believe this would come at the expense of surrounding landowners or the general
public. To the contrary, the BCP 2020 is an expression of the public’s desires for different
types and scales of urban development throughout the City. The proposed zoning aligns with
the BCP 2020 and the overall zoning amendment criteria as shown in Criteria A-K above and
therefore would be to the benefit of the general public.
PROTEST NOTICE FOR ZONING AMENDMENTS
IN THE CASE OF WRITTEN PROTEST AGAINST SUCH CHANGES SIGNED BY THE
OWNERS OF 25% OR MORE OF THE AREA OF THE LOTS WITHIN THE AMENDMENT
AREA OR THOSE LOTS OR UNITS WITHIN 150 FEET FROM A LOT INCLUDED IN A PROPOSED CHANGE, THE AMENDMENT SHALL NOT BECOME EFFECTIVE EXCEPT BY THE FAVORABLE VOTE OF TWO-THIRDS OF THE PRESENT AND VOTING MEMBERS OF THE CITY COMMISSION.
The City will accept written protests from property owners against the proposal
described in this report until the close of the public hearing before the City
Commission. Pursuant to 76-2-305, MCA, a protest may only be submitted by the owner(s)
of real property within the area affected by the proposal or by owner(s) of real property that
lie within 150 feet of an area affected by the proposal. The protest must be in writing and
must be signed by all owners of the real property. In addition, a sufficient protest must: (i)
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contain a description of the action protested sufficient to identify the action against which the
protest is lodged; and (ii) contain a statement of the protestor's qualifications (including
listing all owners of the property and the physical address), to protest the action against
which the protest is lodged, including ownership of property affected by the action. Signers
are encouraged to print their names after their signatures. A person may in writing withdraw
a previously filed protest at any time prior to final action by the City Commission. Protests
must be delivered to the Bozeman City Clerk, 121 North Rouse Ave., PO Box 1230,
Bozeman, MT 59771-1230.
APPENDIX A - NOTICING AND PUBLIC COMMENT
Notice of the application and public hearings was published in the Bozeman Daily Chronicle
on September 26, 2021 and October 10, 2021. Notice was sent via first class mail to nearby
landowners on September 22, 2021 and posted on the property in two locations on September
21, 2021.
One written public comment has been received to date. It is available at
https://weblink.bozeman.net/WebLink/DocView.aspx?id=255178&dbid=0&repo=BOZEMA
N.
APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING
Adopted Growth Policy Designations:
The property’s growth policy designations on the Future Land Use Map of the Bozeman
Community Plan 2020 (Growth Policy) include “Urban Neighborhood.” The description of
Urban Neighborhood is:
“This category primarily includes urban density homes in a variety of types, shapes, sizes,
and intensities. Large areas of any single type of housing are discouraged. In limited
instances, an area may develop at a lower gross density due to site constraints and/or natural
features such as floodplains or steep slopes. Complementary uses such as parks, home-
based occupations, fire stations, churches, schools, and some neighborhood-serving
commerce provide activity centers for community gathering and services. The Urban
Neighborhood designation indicates that development is expected to occur within
municipal boundaries. This may require annexation prior to development.
Applying a zoning district to specific parcels sets the required and allowed density. Higher
density residential areas are encouraged to be, but are not required or restricted to,
proximity to commercial mixed use areas to facilitate the provision of services and
employment opportunities without requiring the use of a car.”
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The following figure from the BCP 2020 illustrates how the proposed R4 and other zoning
districts correlate with the Future Land Use Map:
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Proposed Zoning Designation and Land Uses:
The applicant has requested a zone map amendment to R4 (Residential High Density). The
following are the intent and purpose of this districts:
Residential High Density (R4):
“E. Residential high density district (R-4). The intent of the R-4 residential high density
district is to provide for high-density residential development through a variety of housing
types within the city with associated service functions. This purpose is accomplished by:
1. Providing for minimum lot sizes in developed areas consistent with the established
development patterns while providing greater flexibility for clustering lots and mixing
housing types in newly developed areas.
2. Providing for a variety of compatible housing types, including single and multi-
household dwellings to serve the varying needs of the community's residents.
3. Allowing office use as a secondary use, measured by percentage of total building
area.
Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial
districts, and/or served by transit to accommodate a higher density of residents in close
proximity to jobs and services.”
Authorized uses for residential zoning districts are in 38.310.030, BMC. Similarities between
R-3 and R-4 are highlighted in green and differences in yellow.
Sec. 38.310.030. Authorized uses—Residential zoning districts.
Table 38.310.030.A
Permitted general and group residential uses in residential zoning districts
Table clarifications:
1. Uses: P = Principal uses; C = Conditional uses; S = Special uses; A = Accessory uses; —
= Uses which are not permitted.
2. If a * appears after the use, then the use is defined in article 7.
3. Where a code section is referenced after the use, then the use is subject to the additional
standards specific to the subject use in that code section.
4. If a number appears in the box, then the use may be allowed subject to development
condition(s) described in the footnotes immediately following the table.
Uses Zoning Districts
R-S R-1 R-2 R-3 R-4 R-5 R-
O1
RMH
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General residential
Accessory dwelling
units* - attached
(38.360.040)
P P P P P P P —
Accessory dwelling
units* - detached
(38.360.040)
P P P P P P P —
Apartments/apartment
building*
— — — — P P P —
Apartment building,
limited4
— — — P P P P —
Cottage housing
(38.360.120)*
P P P P P P P P
Manufactured homes on
permanent
foundations(38.360.170)*
P P P P P P P P
Manufactured home
communities*
— — — — — — — P
Single-household
dwelling (38.360.220)
P P P P P P P P
Two-household dwelling
(38.360.220)
— — P P P P P —
Three household
dwelling or four-
household dwelling
(38.360.220)
— — — P P P P —
Townhouses* &
rowhouses* (two
attached
units)(38.360.250)
P2 P2 P P P P P P3
Townhouses* &
rowhouses* (five
attached units or less)
(38.360.250)
— — — P3 P P P —
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Townhouses* &
rowhouses* (more than
five attached units)
(38.360.250)
— — — — P P P —
Group residential
Community residential
facilities* with eight or
fewer residents
P P P P P P P P
Community residential
facilities* serving nine or
more residents
— — — S P P P —
Cooperative household* S S S P P P P S
Family day care home* P P P P P P P P
Group day care home* P P P P P P P P
Group living
(38.360.135)*
P P P P P P P P
Lodging houses* — — — S P P P —
Transitional and
emergency housing
(38.360.140)* and related
services
S S S S S S S S
Notes:
1. The primary use of a lot, as measured by building area, permitted in the R-O district is determined by
the underlying growth policy land use designation. Where the district lies over a residential growth
policy designation the primary use shall be non-office uses; where the district lies over a non-
residential designation the primary use shall be office and other non-residential uses. Primary use shall
be measured by percentage of building floor area.
2. In the R-S, R-1, and RMH district townhomes are only allowed when utilized to satisfy the requirements
of division 38.380, Affordable Housing. May only be utilized in developments subject to division 38.380
of this article.
3. In the R-3 district, townhouse groups must not exceed 120 feet in total width.
4. Supplemental use criteria for apartment building, limited are in 38.360.070.
Table 38.310.030.B
Permitted accessory and non-residential uses in residential zoning districts
Table clarifications:
1. Uses: P = Principal uses; C = Conditional uses; S = Special uses; A = Accessory uses;
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— = Uses which are not permitted.
2. If a * appears after the use, then the use is defined in article 7.
3. Where a code section is referenced after the use, then the use is subject to the additional
standards specific to the subject use in that code section.
4. If a number appears in the box, then the use may be allowed subject to development
condition(s) described in the footnotes immediately following the table.
Uses Zoning Districts
R-S R-1 R-2 R-3 R-4 R-5 R-O1 RMH
Accessory uses
Essential
services Type I*
A A A A A A A A
Guest house* A A A A A A A —
Home-based
businesses
(38.360.150)*
A/S A/S A/S A/S A/S A/S A/S A/S
Other buildings
and structures
typically
accessory to
authorized uses
A A A A A A A A
Private or jointly
owned
recreational
facilities
A A A A A A A A
Signs*, subject
to article 5 of
this chapter
A A A A A A A A
Temporary
buildings and
yards incidental
to construction
work
A A A A A A A A
Temporary sales
and office
buildings
A A A A A A A A
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Non-residential uses
Agricultural
uses* on 2.5
acres or more
(38.360.270)
P — — — — — — —
Agricultural
uses* on less
than 2.5 acres
(38.360.270)
C — — — — — — —
Bed and
breakfast*
C C C C P P P —
Commercial
stable
(38.360.230)
C — — — — — — —
Community
centers*
C C C C C C P C
Day care
centers*
S S S P P P P S
Essential
services Type II*
P P P P P P P P
Essential
services Type
III*2
C C C C C C C C
Short Term
Rental (Type 1)*
P P P P P P P —
Short Term
Rental (Type 2)*
— — P P P P P —
Short Term
Rental (Type 3)*
— — — — — — — —
General service
establishment*
— — — — — — P5 —
Golf courses C C — — — — — —
Offices* — — — — S3 S3 P —
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Public and
private parks
P P P P P P P P
Medical offices,
clinics, and
centers*
— — — — C C3 P —
Recreational
vehicle parks
(38.360.210)*
C — — — — — — P
Restaurant* — — — — — P4 P5, 6 —
Retail* — — — — — P4 P5, 6 —
Uses approved
as part of a PUD
per division
38.380 of this
article
C C C C C C C C
Veterinary uses S — — — — — — —
Notes:
1. The primary use of a lot, as measured by building area, permitted in the R-O district is determined by
the underlying growth policy land use designation. Where the district lies over a residential growth
policy designation the primary use shall be non-office uses; where the district lies over a non-
residential designation the primary use shall be office and other non-residential uses. Primary use shall
be measured by percentage of building floor area.
2. Only allowed when service may not be provided from an alternative site or a less intensive installation
or set of installations.
3. Only when in conjunction with dwellings.
4. Subject uses are limited to 2,500 square feet of gross floor area and only allowed on street corner sites
within a mixed-use building featuring residential units next to and/or above subject uses.
5. Subject uses are limited to 1,500 square feet of gross floor area per individual tenant.
6. These uses may not include drive-through facilities.
Form and intensity standards for residential zoning districts are in 38.320.030, BMC.
APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF
Owner/applicant: Gallatin County, 311 W. Main Street, Rm 306, Bozeman MT 59715
Representative: Sean O’Callaghan, 311 W. Main Street, Rm 108, Bozeman MT 59715
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Report By: Chris Saunders, Community Development Manager
FISCAL EFFECTS
No unusual fiscal effects have been identified. No presently budgeted funds will be changed by
this Zone Map Amendment.
ATTACHMENTS
The full application and file of record can be viewed at the Community Development
Department at 20 E. Olive Street, Bozeman, MT 59715.
Application materials are available online at:
https://weblink.bozeman.net/WebLink/Browse.aspx?startid=240522
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