HomeMy WebLinkAbout10-18-21 Planning Board Agenda & Packet MaterialsA.Call Meeting to Order
B.Disclosures
C.Changes to the Agenda
D.Approval of Minutes
D.1 Approval of Minutes from October 4th, 2021 (Happel)
E.Public Comment
Please state your name and address in an audible tone of voice for the record.This is the time for
THE PLANNING BOARD OF BOZEMAN, MONTANA
PB AGENDA
Monday, October 18, 2021
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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
limit your comments to three minutes.
F.Action Items
F.1 Subdivision Review Procedures And Associated Development Standards Update Text
Amendment, Ordinance 2089, Application 21338(Saunders)
F.2 Continued Discussion of the Clarion Report on the Bozeman Code Audit to Create and
Preserve Housing and Development of Recommendations.(Saunders)
G.FYI/Discussion
H.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:Planning Board
FROM:Taylor Chambers - Community Development Technician II
SUBJECT:Approval of Minutes from October 4th, 2021
MEETING DATE:October 18, 2021
AGENDA ITEM TYPE:Minutes
RECOMMENDATION:I move to approve the meeting minutes from October 4th, 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 the meeting minutes with corrections.
2. Do not approve meeting minutes.
FISCAL EFFECTS:None
Attachments:
10-04-21 Planning Board Meeting Minutes DRAFT.pdf
Report compiled on: October 13, 2021
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Bozeman City Commission Meeting Minutes, 10-04-21
Page 1 of 3
THE PLANNING BOARD MEETING OF BOZEMAN, MONTANA
MINUTES
Monday, October 4th, 2021
00:00:51 WebEx Meeting Information
A) 00:04:08 Call Meeting to Order
Present: Henry Happel, Cathy Costakis, Gerald Pape, Jennifer Madgic, Nicole Olmstead
Absent: Richard Rudnicki, George Thompson, Matthew Hausauer
B) Disclosures
C) 00:05:07 Changes to the Agenda
D) 00:05:13 Approval of Minutes
D.1 Approval of Minutes from September 20th, 2021
09-20-21 Planning Board DRAFT.pdf
00:05:30 Motion D) Approval of Minutes
Gerald Pape: Motion
Cathy Costakis: 2nd
00:05:42 Vote on the Motion to approve D) Approval of Minutes. The Motion carried 5 - 0
Approve:
Henry Happel
Cathy Costakis
Gerald Pape
Jennifer Madgic
Nicole Olmstead
Disapprove:
None
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Bozeman City Commission Meeting Minutes, 10-04-21
Page 2 of 3
E) 00:05:53 Public Comment
Mary Wictor (1504 Boylan Rd.) Commented on the additional goals and objectives, and suggested that
it would be helpful to include in staff reports what area of town the projects are in.
F) 00:14:36 Special Presentations
F.1 Special presentation from One Valley on Gallatin County Regional Housing Study.
00:14:49 Special Presentation
Tanya Andreasen of One Valley Community Foundation presented to the board regarding the recently
published Gallatin County Regional Housing Study.
00:33:22 Board Questions
Board members directed questions to the presenters.
G) 01:20:41 Action Items
G.1 Ongoing work sessions to define and refine Planning Board goals for 2020 and
implementation of the Bozeman Community Plan 2020.
Memo to PB-210928.pdf
Chairman Happel gave an introduction to the work session and stated his goals for the discussion.
01:23:21 Update on Regional Planning Summit
Board member Costakis gave a brief report of her ongoing work on creating a Regional Planning Summit.
Chairman Happel suggested the possibility of a speaker series in place of a regional summit as there are
limitations due to the COVID-19 pandemic.
Staff Liaison Saunders informed the Board that there is an opportunity for breakout sessions via WebEx.
Chairman Happel directed board member Costakis to research the possibility of orchestrating a speaker
summit.
01:30:03 Suggested revisions to the UDC
Chairman Happel gave an overview of the Clarion report and inquired if the Board would like to have a
discussion on the report at a special meeting of the Planning Board.
Commissioner Madgic commented that a special meeting would be a good idea.
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Bozeman City Commission Meeting Minutes, 10-04-21
Page 3 of 3
Board member Pape commented that it is important for the Board to have a discussion on the Clarion
report.
Board member Olmstead requested clarification as to why the Board would hold a special meeting.
Chairman Happel commented that his intention of holding a special meeting would be to create a
resolution based on the discussion to present to Clarion.
Staff liaison Saunders asked questions regarding the logistics of a special meeting.
Chairman Happel responded that he feels that the Board should discuss each of the 5 topics that Clarion
reported.
Board member Costakis commented that she would be willing to attend a special meeting of the Board
to discuss the Clarion report.
Board member Olmstead commented that she thought a special meeting of the Board would be a good
idea.
Chairman Happel commented that he would inquire as to whether the public comment deadline could
be pushed out.
01:50:28 Community Plan Oversight
Chairman Happel gave an overview of the work done in the previous meeting regarding the community
plan oversight and commented that he will be following up with Marty Matsen.
01:51:38 Form Based Codes
Commissioner Madgic recommended a presentation be made for the Board to review.
Board member Pape echoed Commissioner Madgic's comment.
Board member Costakis commented that she would prefer to hear from someone who is not biased in
their opinion on form based code.
Board member Olmstead commented that it may be a good idea to ask Clarion to make a presentation
and also recommended that she believed that the County used Sanderson Stewart in the past to make
presentations based on form based code.
H) 02:00:52 FYI/Discussion
I) 02:00:57 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
Choose a building block.
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Memorandum
REPORT TO:Planning Board
FROM:Chris Saunders, Community Development Manager
Martin Matsen, Community Development Director
SUBJECT:Subdivision Review Procedures And Associated Development Standards
Update Text Amendment, Ordinance 2089, Application 21338
MEETING DATE:October 18, 2021
AGENDA ITEM TYPE:Community Development - Legislative
RECOMMENDATION:Having reviewed and considered the staff report, draft ordinance, public
comment, and all information presented, I hereby adopt the findings
presented in the staff report for application 21338 and move to recommend
approval of Ordinance 2089.
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:The State Legislature passed six bills which amended the Subdivision and
Platting Act in the 2021 legislative session. The City is required to have
regulations to review subdivisions. Those regulations must conform to state
law. Therefore the City must update its regulations accordingly. These
amendments will change the way the City reviews subdivisions.
The amendments have been drafted to strike a balance of interests between
right to know and participate, property rights and responsibilities, and the
directives of the revised state laws. In support of additional efforts to
support housing creation, the amendments have been drafted to remove
information deemed unnecessary as data availability has increased through
online tools, clarify the subdivision review process, and take advantage of
state authorized reductions in review criteria and processes.
UNRESOLVED ISSUES:None.
ALTERNATIVES:See attached s
FISCAL EFFECTS:No budgeted funds will be affected by these amendments
Attachments:
21338 PB staff Report.pdf
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Ord. 2089 Revised Text for Subdivision Process - Public
Hearing draft 10-1-2020.pdf
Report compiled on: October 13, 2021
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Page 1 of 17
21338 Staff Report for the Subdivision Review Procedures Update Text
Amendment, Ordinance 2089
Public Hearings:
Planning Board – October 18, 2021.
Zoning Commission – October 25, 2021.
City Commission – November 16, 2021.
Project Description: Update the City of Bozeman (City) regulations for review of
subdivisions to conform to the Montana Subdivision and Platting Act, recently
updated by the State Legislature. See Appendix A for the detailed description.
Project Location: Revision to the text is applicable City-wide.
Recommendation: Meets standards for approval.
Planning Board Recommended Motion: Having reviewed and considered the staff report,
draft ordinance, public comment, and all information presented, I hereby adopt the
findings presented in the staff report for application 21338 and move to recommend
approval of Ordinance 2089.
Zoning Commission Recommended Motion: Having reviewed and considered the staff
report, draft ordinance, public comment, and all information presented, I hereby
adopt the findings presented in the staff report for application 21338 and move to
recommend approval of Ordinance 2089.
Recommended City Commission Recommended Motion: Having reviewed and
considered the staff report, draft ordinance, public comment, and all information
presented, I hereby adopt the findings presented in the staff report for application
21338, and move to provisionally adopt Ordinance 2089.
Report: October 13, 2021
Staff Contact: Chris Saunders, Community Development Manager
Agenda Item Type: Action - Legislative
EXECUTIVE SUMMARY
This report is based on the analysis of required elements of state law regarding subdivision
review and public comment received to date.
Unresolved Issues
None.
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Staff Report for the Subdivision Review Procedures Update 21338 Page 2 of 17
Project Summary
These amendments will change the way the City reviews subdivisions. The City is required
to have regulations to review subdivisions. Those regulations must conform to state law. The
State Legislature amended the Subdivision and Platting Act in 2021. Therefore the City must
update its regulations accordingly.
The amendments have been drafted to strike a balance of interests between right to know and
participate, property rights and responsibilities, and the directives of the revised state laws. In
support of additional efforts to support housing creation, the amendments have been drafted
to remove information deemed unnecessary as data availability has increased through online
tools, clarify the subdivision review process, and take advantage of state authorized
reductions in review criteria and processes.
Some elements of the amendments also affect projects reviewed through zoning processes.
See Appendix A for a summary of the amendments and the attached draft Ordinance 2089
for the exact proposed text. These amendments are applicable across the entire city.
The text of the ordinance will be updated after the Planning Board and Zoning Commission
public hearings to address public comments and continued review of the statutes.
Strategic Plan
4.1 Informed Conversation on Growth
Continue developing an in-depth understanding of how Bozeman is growing and
changing and proactively address change in a balanced and coordinated manner.
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.
4.3 Strategic Infrastructure Choices
Prioritize long-term investment and maintenance for existing and new infrastructure.
Planning Board
The Bozeman Planning Board will hold a public hearing on October 18, 2021 at 6:00 p.m.
using WebEx. The Planning Board has a specific statutory responsibility to consider
subdivisions and subdivision regulations and will be considering all the components of draft
ordinance 2089.
No public comment has been received as of the writing of this report.
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Staff Report for the Subdivision Review Procedures Update 21338 Page 3 of 17
Zoning Commission
The Bozeman Planning Board will hold a public hearing on October 25, 2021 at 6:00 p.m.
using WebEx. The scope of the Zoning Commission review is more limited for this
amendment and specifically focuses on Sections 3-5, 10, 11, and 22-24 of Ordinance 2089.
No public comment has been received as of the writing of this report.
Alternatives
1. Recommend denial of the ordinance based on findings of non-compliance with the
applicable criteria contained within the staff report; or
2. Open and continue the public hearing on the application, with specific direction to staff to
supply additional information or to address specific items.
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Staff Report for the Subdivision Review Procedures Update 21338 Page 4 of 17
TABLE OF CONTENTS
EXECUTIVE SUMMARY ...................................................................................................... 1
Unresolved Issues ............................................................................................................... 1
Project Summary ................................................................................................................. 2
Strategic Plan ...................................................................................................................... 2
Planning Board.................................................................................................................... 2
Zoning Commission ............................................................................................................ 3
Alternatives ......................................................................................................................... 3
SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS ........................................ 4
SECTION 2 - TEXT AMENDMENT STAFF ANALYSIS AND FINDINGS ....................... 5
Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations) .............. 5
Section 76-3-102, MCA (Subdivision Purposes)................................................................ 6
Section 76-3-501, MCA (Subdivision Purposes)................................................................ 8
SECTION 6 - ZONE AMENDMENT STAFF ANALYSIS AND FINDINGS..................... 10
Spot Zoning Criteria ......................................................................................................... 14
PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 14
APPENDIX A - DETAILED PROJECT DESCRIPTION AND BACKGROUND .............. 14
APPENDIX B - NOTICING AND PUBLIC COMMENT .................................................... 16
APPENDIX C - APPLICANT INFORMATION AND REVIEWING STAFF .................... 16
FISCAL EFFECTS ................................................................................................................. 16
ATTACHMENTS ................................................................................................................... 16
SECTION 1 - RECOMMENDATION AND FUTURE ACTIONS
Having considered the criteria established for a text amendment, the Staff recommends approval
as proposed.
The Planning Board will hold a public hearing on these amendments on October 18, 2021.
The Zoning Commission will hold a public hearing on these amendments on October 25, 2021.
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Staff Report for the Subdivision Review Procedures Update 21338 Page 5 of 17
The City Commission will hold a public hearing on the text amendment on November 16, 2021
at 6:00 p.m.
SECTION 2 - 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 but must be consistent with the
criteria.
The existing development review processes and standards were previously found to satisfy all of
the following criteria during earlier reviews. The focus of this report is only on the amendments
proposed. Where a finding of Neutral is presented it represents that the criteria is either not
applicable to the proposed amendments or that the change does not materially advance or detract
from compliance. Therefore, a finding of Neutral is not an indication of a deficiency in the
proposed amendments or the existing standards.
Section 76-1-606, MCA (Effect of Growth Policy on Subdivision Regulations)
1. Subdivision regulations adopted after a growth policy has been adopted must be
made in accordance with the growth policy.
Criterion met. The proposed amendments are made in accordance with the adopted growth
policy - the Bozeman Community Plan 2020 (BCP 2020). No conflicts with the goals and
objectives of the Bozeman Community Plan have been identified.
State law requires a growth policy to describe how the community will consider the primary
review criteria of 76-3-608(3) for subdivision review. This is on pages 68-70 of the BCP
2020. Agricultural uses are generally expected to transition out with conversion to urban
uses. This makes some water user facilities unnecessary with development and those can be
removed using the proper procedures. However, some agricultural water user facilities will
continue to operate in the short and long term and must be protected and maintained. Water
may be carried many miles from the diversion point to its place of use. Therefore, the
impacts of development on agricultural water user facilities and water rights may be far away
from where the water is put to use. Ditch and water right owners have property rights in
agricultural water user facilities and statutory rights to protect those property rights. The BCP
2020 recognizes this and calls for protection of such rights.
Theme 7 of Chapter 2 addresses cooperation and coordination with other agencies. It calls for
several actions including
RC-1.5 Implement the Triangle Community Plan in coordination between Bozeman,
Belgrade, and Gallatin County.
Several policies of the Triangle Community Plan address ditches including but not limited to:
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Staff Report for the Subdivision Review Procedures Update 21338 Page 6 of 17
POLICY 4.9.2 Rights of way and easements associated with the ditches and canals must
be recognized and protected.
POLICY 4.9.7 Encourage coordination between developers and ditch owners to minimize
or eliminate the number of times irrigation infrastructure must be crossed.
POLICY 4.9.8 Refine development review processes to provide for oversight after
approval and throughout construction in coordination with adjacent ditch or canal
company to ensure the standards are met.
Section 4.9 – Ditches and Canals, of the Triangle Community Plan presents a shared
priority to protect ditches and canals when appropriate to support the continued
functionality of the facilities. These facilities are an essential element of the agricultural
heritage of the community which is an important part of community identity and
character.
POLICY 4.9.13 Use subdivision review regulations to recognize and protect rights of
way and maintenance easement rights for irrigation ditches and canals.
BCP 2020 - RC-3.6 Develop shared information on development processes.
The revisions to the code in Section 22 and 24 of the ordinance addressing ditches is
coordinated with the requirements of Gallatin County to provide consistency across
jurisdictional boundaries, ensure that those holding water rights or ownership of agricultural
water user facilities are included in the subdivision review process, and supports compliance
with state law regarding ditches and other agricultural water user facilities. The Association
of Gallatin Agricultural Irrigators was notified of this amendment process and invited to
comment and participate in the process.
Section 76-3-102, MCA (Subdivision Purposes)
2. Promote the public health, safety, and general welfare by regulating the
subdivision of land.
Criterion is met. The proposed regulations promote the public health, safety, and general
welfare by requiring compliance with the Montana Subdivision and Platting Act. The City’s
adopted standards for land development which apply to the subdivision process ensure
adequate emergency services, access to utilities, and other features which support this
criterion.
Further, the proposed edits continue to provide for installation of infrastructure necessary for
public health and safety, such as sanitary sewer, water, stormwater, streets and sidewalks in
conjunction with development of commercial and residential projects. The regulations
require identification and avoidance of development of land where it is not suitable.
Section 76-3-501 MCA requires the City to create and adopt subdivision regulations. Section
76-3-504 identifies what must be included in those regulations. Numerous sections of state
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Staff Report for the Subdivision Review Procedures Update 21338 Page 7 of 17
law relating to subdivisions were amended by the Legislature in the 2021 session. The City is
updating its regulations in response to those changes. All the proposed edits in draft
Ordinance 2089 are implementing improvements to the subdivision related processes and
standards. Some standards apply to both subdivision and zoning authority based land
development.
The City has received applications for 47 preliminary plats and 53 final plats in the past five
years. The City is using its extensive experience in subdivision review to make
improvements to the subdivision process locally in addition to the state required changes
through these amendments. See also Zoning Criteria B and C. The criterion is met.
3. Prevent the overcrowding of land.
Neutral. Overcrowding is the condition arising from more intensity of use than the property
and infrastructure is capable of supporting. T\he proposed regulations do not address the
underlying analysis of whether a proposed land use is the appropriate intensity of use. The
City’s standards regarding appropriate intensity of use are established through the City’s
zoning districts which are not changed with these amendments. The necessary infrastructure
to support development must still be provided in a timely manner and in sufficient quantity to
address needs of the development. Section 8 of the ordinance requires demonstration of
compliance with standards including the infrastructure needed to prevent overcrowding.
4. Lessen congestion in the streets and highways.
Neutral. The proposed amendments do not change the existing standards which address this
criterion. Adequate information to demonstrate compliance with adopted standards must still
be presented as part of application submittals. The City’s transportation master plan and
implementing capital improvements program address needed expansions and improvements.
Local improvements will continue to be required for individual subdivisions as currently is
required.
5. Provide adequate light, air, water supply, sewage disposal, parks and recreation
areas, ingress and egress, and other public improvements.
Yes. The existing regulations set forth process and standards by which a development
ensures required water supply, sanitary sewer, streets, stormwater, parks, etc. Compliance
with those requirements is required as part of the submittal requirements for subdivision
application. The standards for agricultural water user facilities (e.g. ditches) are being
updated. Agricultural water user facilities are often located adjacent to streets or cross parks.
Contact, consultation, and coordination with the water right and agricultural water user
facility owners avoids conflicts and ensures minimal impact to both agricultural water user
facilities and other infrastructure.
The regulations have no impact on providing adequate light and air. See also Zoning Criteria
D and E. The criterion is met.
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Staff Report for the Subdivision Review Procedures Update 21338 Page 8 of 17
6. Require development in harmony with the natural environment.
Neutral. The proposed amendments do not specifically address this issue. The existing
standards for protection of water courses, wetlands, etc. are not modified. Revisions are made
to data submittal requirements. As more information becomes readily available online on
demand the specific information for an individual application can become more focused on
essential material unique to that site. The proposed amendments do reduce required
information to be submitted with individual subdivision applications. Due to the increased
general availability of information, the reduction in application specific submittal material
will not negatively affect this criterion.
7. Protect the rights of property owners.
Criterion is met. Article 2, Section 3 of the Montana Constitution recognizes that land owners
have both property rights and associated responsibilities. The proposed amendments protect
the rights of property owners by providing a uniform process and standards for subdivisions
which is consistent with state law.
The owners of water rights and agricultural water user facilities have property rights in those
items. The revised provisions for water rights and agricultural water user facilities in the
newly proposed Section 38.360.280 and revised 38.410.060 ensures that affected persons are
contacted and have an opportunity to participate in the review process to protect their
property interests. This section completes the necessary regulatory elements in generally
applicable standards to address the primary review criteria for subdivisions.
8. Require uniform monumentation of land subdivisions and transferring interests
in real property by reference to a plat or certificate of survey.
Neutral. The proposed amendments do not alter the standards previously found adequate to
address this requirement.
Section 76-3-501, MCA (Subdivision Purposes)
This section requires local governments to adopt regulations that reasonably provide for:
9. Orderly development within the jurisdictional area.
Criterion is met. Section 76-3-616 and Section 1 of Senate Bill 161 (soon to be published as
76-3-623) both share the premise that if generally applicable regulations are in effect, often
established through zoning, then review of a subdivision should primarily focus on
compliance with the established regulations. The City has over time established standards
addressing most of the subdivision primary review criteria created in 76-3-608 MCA. The
proposed amendments do not modify the standards for layout of parks, streets, or other
elements of order. The amendments are primarily focused on review processes. Additional
standards are being created for water rights and agricultural water user facilities and
coordination with owners, see ordinance section 22 and 24. These additional standards will
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Staff Report for the Subdivision Review Procedures Update 21338 Page 9 of 17
further support orderly development through early contact with affected parties and
providing opportunities to avoid or address conflicts earlier in the review process.
10. Coordination of roads within subdivided land with other roads, both existing
and planned.
Neutral. The proposed amendments do not alter the existing standards or planned locations
for road placement or expansion. New subdivisions will continue to be required to coordinate
the development of roads servicing the development with the overall street grid of the City,
both existing and planned. See also Zoning Criterion F.
11. Dedication of land for roadways and for public utility easements.
Neutral. The proposed amendments do not alter the existing standards for the width or
planned locations for road placement or expansion. New subdivisions will continue to be
required to coordinate the development of roads servicing the development with the overall
street grid of the City, both existing and planned. Configuration of easements for public
utilities such as water or sewer are not changing. Sections 16 and 17 among other sections
amends the certificates which are included on final plats. These certificates are an important
part of documenting and completion of dedications of land and easements for roads and
public utilities. See also Zoning Criterion F
12. Improvement of roads.
Neutral. The proposed amendments do not alter the existing standards for road
improvements New subdivisions will continue to be required to coordinate the development
of roads servicing the development with the overall street grid of the City, both existing and
planned. Most detailed construction standards are now and will continue to be included in the
Design and Specifications created by the Engineering Division. See also Zoning Criterion F
13. Provision of adequate open spaces for travel, light, air and recreation.
Criteria is met. The regulations simplify the review process for public parks. Additional
responsibilities are being delegated from City Commission to the Director of Parks. This is
expected to shorten review and approval times for the delegated duties, such as approval of
final park plans. The amendments also move certain review responsibilities from the
Recreation and Parks Advisory Board to the Parks Department staff. This is consistent with
the recent restructuring of advisory boards and an increased focus on policy development
rather than operational activities. Sections 25-27 of the proposed ordinance enact these
transfers of responsibility. See Ordinance 2089 for revisions.
Standards for lights and air are generally established by the Building Code and Zoning
regulations for individual lots. No changes are proposed affecting the amount of land to be
set aside for public parks.
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14. Adequate transportation, water and drainage.
Neutral. City standards for the referenced infrastructure is unchanged by the proposed
amendments. See comments in Subdivision Criteria 10-13. See also Zoning Criteria D and
F.
15. Regulation of sanitary facilities, subject to section 76-3-511, MCA.
Neutral. The proposed amendments do not modify the regulations in place to ensure
adequate sanitary facilities to serve the development are installed in accordance with City
standards. The City has not established standards greater than state regulations or guidelines
that would be affected by 76-3-511. See also Zoning Criterion D.
16. Avoidance or minimization of congestion.
Neutral. See responses to Criterion 3 and 4, and 10-14 above. As noted above, the proposed
amendments are primarily focused on the process to review subdivision applications. These
processes do not in themselves address this criterion.
17. Avoidance of subdivision which would involve unnecessary environmental
degradation and the avoidance of danger or injury to health, safety, or welfare by
reason of natural hazard or the lack of water, drainage, access, transportation, or other
public services or would necessitate an excessive expenditure of public funds for the
supply of such services.
Criterion is met. The proposed regulation ensures that adequate water, drainage, street
system, sidewalks, and other necessary infrastructure will be installed to City standards. The
expanded requirements relating to water rights and agricultural water user facilities helps
avoid unintentional flooding caused by removal or damage to the ditch system. Such flooding
can be widespread. Some ditches also serve as stormwater channels and if damaged can
interfere with proper drainage of developed and undeveloped areas.
See also Zoning Criteria A, D, and F. The criterion is met.
SECTION 6 - ZONE 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.
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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.
The existing development review processes and standards were previously found to satisfy
all of the following criteria during earlier reviews. The focus of this report is only on the
amendments proposed. Where a finding of Neutral is presented it represents that the criteria
is either not applicable to the proposed amendments or that the change does not materially
advance or detract from compliance. Therefore, a finding of Neutral is not an indication of a
deficiency in the proposed amendments or the existing standards.
Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy.
Criterion is met. State law requires a growth policy to describe how the community will
consider the primary review criteria of 76-3-608(3) for subdivision review. This is on pages
68-70 of the BCP 2020. Agricultural uses are generally expected to transition out with
conversion to urban uses. This makes some agricultural water user facilities unnecessary.
However, some will continue to operate and need to be protected and maintained.
Agricultural water user facilities and water owners have property rights in agricultural water
user facilities and statutory rights to protect those property rights. The BCP 2020 recognizes
this and calls for protection of such rights.
The proposed amendments in Sections 22 and 24 of the ordinance propose specific language
to address the protection and coordination with the owners and beneficiaries of ditches and
water rights. The proposed standards are applicable to both subdivision and zoning based
review processes. See also the discussion in Subdivision Criterion 1 above.
B. Secure safety from fire and other dangers.
Criterion is met. As noted in Criteria A and 17 above, the City expects the improved
coordination with water right holders and agricultural water user facilities owners to improve
safety. The other standards already in place for fire and other protection remain in place and
will continue to protect the public.
C. Promote public health, public safety, and general welfare.
Neutral. See responses to Criteria A, B, 2, 5, 14, and 17 above.
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D. Facilitate the provision of transportation, water, sewerage, schools, parks
and other public requirements.
Criterion is met. 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
additional service needed by new development. The City implements these plans through its
capital improvements program that identifies individual projects, project construction
scheduling, and financing of construction. As stated in the subdivision review criteria above,
the existing standards regarding provision of infrastructure for these services will not change.
The focus of the amendments is primarily on subdivision review processes. These include
improvements on the process for submitting park related information and approval of park
plans. Mitigation of impacts of new development on parks and recreation is required in MCA
76-3-621.
E. Reasonable provision of adequate light and air.
Neutral. The proposed amendments do not alter existing standards for setbacks, open space,
park dedication, or other related issues.
F. The effect on motorized and non-motorized transportation systems.
Neutral. The City conducts extensive planning for municipal transportation, trails, and parks
related to this criterion and services provided by the City. The adopted plans allow the City
to consider existing conditions and identify enhancements needed to provide additional
service needed by new development. The proposed amendments do not alter these plans or
associated standards. The subdivision process does require applicants to demonstrate
compliance with the adopted standards. Therefore, the impacts on transportation should be
minimal from these amendments.
G. Promotion of compatible urban growth.
Criterion is met. As the City expands it interacts with adjacent agricultural uses. Agricultural
operations are often dependent on irrigation and most irrigation in the area is provided by
ditches. The proposed amendments in Sections 22 and 24, as discussed above, protect the
interests of irrigators and water right holders. There are also adopted provisions to support
the removal of ditches when they no longer are required thereby avoiding conflicts with new
construction.
The City has defined compatible development as:
“The use of land and the construction and use of structures which is in harmony with
adjoining development, existing neighborhoods, and the goals and objectives of the city's
adopted growth policy. Elements of compatible development include, but are not limited to,
variety of architectural design; rhythm of architectural elements; scale; intensity; materials;
building siting; lot and building size; hours of operation; and integration with existing
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community systems including water and sewer services, natural elements in the area,
motorized and non-motorized transportation, and open spaces and parks. Compatible
development does not require uniformity or monotony of architectural or site design, density
or use.”
The City has adopted many standards to identify and avoid or mitigate demonstrable negative
impacts of development. Other standards addressing compatibility are not being modified
through these amendments.
H. Character of the district.
Neutral. 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 text and not the zoning map. The amended text is affecting review
procedures for subdivision. 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. The zoning related elements in Sections 3-5, 10, 11, and 22-24 of Ordinance 2089
address review processes or standards for agricultural water user facilities that will not modify
the character of distrcits.
I. Peculiar suitability for particular uses.
Neutral. The proposed amendments are not changing the zoning map or the uses allowed
within zoning districts. Therefore, no analysis regarding this criterion can be performed. The
analysis as required in Subdivision Criterion 17 remains in place and will be performed with
each subdivision. This existing process will address this criterion.
J. Conserving the value of buildings.
Neutral. The proposed amendments are not changing the zoning map or the uses allowed
within zoning districts. No standard is being created which will reduce allowed building
areas or otherwise restrict the development capacity of a specific property.
K. Encourage the most appropriate use of land throughout the jurisdictional
area.
Neutral. The zoning map and future land use map of the growth policy identify areas where
specific uses are generally appropriate. However, both occur at a coarse level of detail and do
not authorize constuction. The subdivision review process provides more detailed analysis
and documentation that the uses authorized by the zoning can actually be supported with
existing or expanded infrastructure. The amendments do not change this outcome.
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Spot Zoning Criteria
Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The
proposed amendments do not alter the zoning map in any way. Therefore, no analysis of spot
zoning criteria is provided.
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)
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 - DETAILED PROJECT DESCRIPTION AND
BACKGROUND
The City is required to adopt regulations to review the subdivision of land. The subdivision
process sets the essential framework of a community with streets, parks, and lots being laid out.
These decisions have impacts measured in centuries as well as affecting the community in the
near term.
The laws of the State of Montana place many requirements on what must be included in
subdivision regulations. Restricted time frames for review, noticing to the public, protection of
property rights, public safety, and many other subjects are addressed. The 2021 Legislature
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passed six bills modifying the subdivision review process. The City must update its regulations
accordingly.
A broad theme in recent legislative actions is that if an issue can be addressed through a
generally applicable rule, such as zoning, that is preferred over many site specific analyses
unique to an individual subdivision regulation. The City adopted a Unified Development Code in
2003 to accomplish coordination and lessen the complexity inherent in the very complex issues
and requirements of land development. Many standards apply to both subdivision and zoning
based review processes. The proposed amendments continue this process.
Specific edits with these amendments are:
1. The City is removing language which simply repeats state law in local ordinance.
Instead, a reference to the applicable state law is provided instead. This shortens text
length, and ensures that review of requirements is always directly linked to the most
current state requirements.
2. The City is updating references to state law and local ordinances which have
changed since the prior code amendments.
3. The City is clarifying who bears the responsibility to demonstrate compliance with
adopted standards, when that compliance must be shown, and by whom.
4. The delegation of some current City Commission steps in review processes to
specified staff positions. This is expected to reduce review time, ensure the agencies
most affected by decisions are participating in the decisions, and strengthen
consistency with other review processes. An example is the Director of Parks and
Recreation having responsibility to approve finalized park plans.
5. Updating submittal requirements for subdivisions to remove unneeded information
from individual applications as new information sources have become available, limit
information supplied to that most relevant to the subdivision process, and ensure all
needed information is provided.
6. Updating public notice provisions to conform to changed requirements for
subdivision review processes. Due to the changes in state law and the local
ordinances there will be fewer public hearings on subdivisions. However, there will
still be opportunities for public notice and comment on subdivisions.
7. Changing the subdivision preliminary plat review process to meet revised state
laws for expedited subdivision review and newly applicable review processes. These
revisions change the review process to rely more on compliance with generally
applicable regulations rather than project specific conditions of approval, changes
most public hearings to public meetings, and shortens review time for some
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subdivisions. The Planning Board will likely no longer conduct any public hearings
on subdivisions. Some review processes for subdivisions will be shortened.
8. Updating required certificates for final plats for additional clarity and revisions for
City signatories.
9. Revised process and standards for agricultural water user facilities (e.g. ditches and
canals). This amendment enables the City to invoke 76-3-616 MCA which simplifies
the subdivision review process by providing for all subdivision primary review
criteria to be addressed with generally applicable regulations.
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 Planning Board public hearing, and not more
than 45 days prior to the City Commission public hearing. Notice was published in the
Bozeman Daily Chronicle on 10/3/2021, 10/10/2021, 10/17/2021, and 11/7/2021. 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
Representative: Department of Community Development, City of Bozeman, PO Box 1230,
Bozeman MT 59771
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 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.
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Ordinance 2089
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This draft ordinance is under public review. Additional changes may be made prior to adoption. Dates of public hearings are before the Planning Board on October 18th , Zoning Commission on October 25th, and the City Commission on November 16th. Markup is in color for ease of identification. Blue text is inserted. Red text is deleted. Some explanatory comments are provided in the side bubbles.
ORDINANCE 2089
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA AMENDING SECTION 38.100.040 INTENT AND PURPOSE OF CHAPTER
TO REFERENCE STATE LAW, AMENDING SECTION 38.100.070 CONDITIONS OF
APPROVAL TO CLARIFY WHEN CONDITIONS OF APPROVAL APPLY, AMENDING
SECTION 38.100.080 COMPLIANCE WITH REGULATIONS REQUIRED TO CLARIFY
OBLIGATIONS, AMENDING SECTION 38.200.010 REVIEW AUTHORITY TO
UPDATE RESPONSIBILITIES FOR REVIEW OF DEVELOPMENT ACTIONS,
AMENDING SECTION 38.220.030 SUBDIVISION PRE-APPLICATION PLAN TO
REVISE SUBMITTAL MATERIALS FOR SUDIVISION PRE-APPLICATIONS,
AMENDING SECTION 38.220.040 SUBDIVISION PRELIMINARY PLAT TO REVISE
SUBMITTAL MATERIALS FOR SUBDIVISION PRELIMINARY PLATS AND
DELETING AND RESERVING SECTION HEADER 38.240.050, AMENDING SECTION
38.220.060 ADDITIONAL SUBDIVISION PRELIMINARY PLAT SUPPLEMENTS TO
CHANGE TITLE AND REVISE REQUIRED MATERIAL FOR SUBMISSION,
AMENDING SECTION 38.220.070 FINAL PLAT TO REVISE APPLICATION
MATERIALS TO BE SUBMITTED WITH A FINAL PLAT, AMENDING DIVISION
38.220 PART 2 TO REVISE THE SUBMITTAL AND REVIEW OF SUPPLEMENTARY
DOCUMENTS, AMENDING SECTION 38.220.420 NOTICE REQUIREMENTS FOR
APPLICATION PROCESSING TO REMOVE FOOTNOTES, REVISE NOTICING
PROCEDURES FOR SUBDIVISIONS, AMENDING DIVISION 38.240 PART ONE TO
INCORPORATE STATE LAW REFERENCES, AMENDING DIVISION 38.240 PART 2
TO REVISE REVIEW PROCEDURES TO COMPLY WITH REVISIONS TO STATE
LAW AND REORGANIZE FOR CLARITY, AMENDING DIVISION 38.240 PART 3
LAND SUBDIVISIONS CREATED BY RENT OR LEASE TO REMOVE LANGUAGE NO
LONGER REQUIRED IN STATUTE, AMENDING SECTION 38.240.300 DIVISIONS OF
LAND ENTIRELY EXEMPT FROM THE REQUIREMENTS OF THIS CHAPTER
PERTAINING TO SUBDIVISIONS AND THE STATE SUBDIVISION AND PLATTING
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ACT TO INCLUDE NEW STATE RESTRICTION ON COURT ORDERED DIVISIONS
OF LAND, AMENDING SECTION 38.240.410 TO CLARIFY WHEN CERTIFICATE OF
DEDICATION OR CONSENT ARE USED WITH A FINAL PLAT, AMENDING
SECTION 38.240.450 TO CHANGE THE SIGNATORY ON THE CERTIFICATE OF
COMPLETION OF IMPROVEMENTS TO THE CITY ENGINEER, AMENDING
SECTION 38.240.460 TO CLARIFY THE INTENT AND SIGNATORY FOR THE
CERTIFICATE ACCEPTING DEDICATIONS TO THE CITY, AMENDING SECTION
38.240.470 TO REVISE THE SIGNATORY FOR THE CERTIFICATE
ACKNOWLEDGING EXCLUSION FROM REVIEW FOR SANTIATION, AMENDING
SECTION 38.240.500 TO CLARIFY THE CERTIFICATE FOR USE OF THE
CERTIFICATE FOR EXEMPTION FOR CERTAIN APPLICATIONS FROM REVIEW
AS A SUBDIVISION, AMENDING SECTION 38.240.530 TO REVISE THE SIGNATORY
FOR THE CITY ON THE CERTIFICATE, CREATE SECTION 38.240.540
CERTIFICATE OF GOVERNING BODY FOR APPROVAL OF A SUBDIVISION PLAT,
AMENDING SECTION 38.250.080 SUBDIVISION VARIANCES TO CLARIFY THAT A
PUBLIC HEARING IS NOT HELD ON SUBDIVISION VARIANCES, CREATE
SECTION 38.360.280 AGRICULTURAL WATER USER FACILITIES, AMENDING
SECTION 38.400.020 TO REVISE CROSS REFERENCE, AMENDING SECTION
38.410.060 TO REVISE REQUIREMENTS FOR AGRICULTURAL WATER USER
FACILITIES, AMENDING SECTION 38.410.020 TO REVISE REVIEW PROCESS FOR
NEIGHBORHOOD CENTERS, AMENDING SECTION 38.420.050 TO REVISE REVIEW
PROCESS FOR SITING PARKS, AMENDING SECTION 38.420.080 TO REVISE
REVIEW PROCESS FOR DETERMINATION OF PARK CHARACTERISTICTS
PROPOSED WITH NEW DEVELOMPENT; AND PROVIDING AN EFFECTIVE DATE,
APPLICATION 21338.
WHEREAS, the City of Bozeman (the “City”) has adopted land development and use
standards to protect public health, safety and welfare and otherwise execute the purposes of
Montana Code Annotated §§ 76-1-102, 76-2-304, 76-3-102, and 76-3-501; and
WHEREAS, after proper notice, the Bozeman Planning Board held a public hearing on
October 18, 2021 to receive and review all written and oral testimony on the proposed
amendments; and
WHEREAS, the Bozeman Planning Board recommended to the Bozeman City
Commission that application No. 21338, be [approved/modified/disapproved] as proposed; and
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WHEREAS, after proper notice, the Bozeman Zoning Commission held a public hearing
on October 25, 2021 to receive and review all written and oral testimony on the proposed
amendments; and
WHEREAS, the Bozeman Zoning Commission recommended to the Bozeman City
Commission that application No. 21338, be [approved/modified/disapproved] as proposed; and
WHEREAS, after proper notice, the City Commission held its public hearing on
November 16, 2021, to receive and review all written and oral testimony on the proposed
amendment to the subdivision regulations; and
WHEREAS, the City Commission has reviewed and considered the applicable
amendment criteria established in Montana Code Annotated §§ 76-3-102 and 76-3-501, and found
that the proposed amendments would be in compliance with the criteria.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
Legislative Findings
The City Commission hereby makes the following findings in support of adoption of this
Ordinance:
1. The City has adopted land development and use standards to protect public health,
safety and welfare and otherwise execute the purposes of Montana Code Annotated §§ 76-1-102,
76-2-304, 76-3-102, and 76-3-501.
2. The City adopted a growth policy, the Bozeman Community Plan 2020 (BCP 2020),
by Resolution 5133 to establish policies for development of the community.
3. Zoning and subdivision regulations must be in accordance with the adopted growth
policy.
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4. The 2021 Montana Legislature passed multiple bills revising the requirements for the
subdivision review process.
5. The City of Bozeman restructured its advisory boards on August 10, 2021 assigning
duties and consolidating responsibilities to improve public engagement, consistency of process,
and effectiveness and such advisory boards are referenced in the subdivision related regulations
and therefore the regulations need to be updated to reflect the new boards structure.
6. A staff report analyzing the required criteria for an amendment to the City’s
regulations for subdivision review, including accordance to the Bozeman Community Plan 2020,
and required contents for local subdivision regulations has found that the required criteria of
Montana Code Annotated §§ 76-1-606, 76-3-102, and 76-3-501 are satisfied.
7. A staff report analyzing the required criteria for an amendment to the City’s
regulations for zoning review, including accordance to the Bozeman Community Plan 2020, and
required criteria for zoning regulations has found that the required criteria of Montana Code
Annotated §§ 76-1-304 are satisfied.
8. The required public hearings were advertised as required in state law and municipal
code and all persons have had opportunity to review the applicable materials and provide
comment.
9. The City Commission considered the application materials, staff analysis and report,
Planning Board recommendation, Zoning Commission recommendation, all submitted public
comment, and all other relevant information.
10. The City Commission determines that, as set forth in the staff report and
incorporating the staff findings as part of their decision, the required criteria for approval of this
ordinance have been satisfied.
11. The City Commission determines that the ordinance provides a proper balance of
interests, rights, and responsibilities of all parties affected by the ordinance.
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12 The City Commission determines that the zoning provisions of Chapter 38, Unified
Development Code, contain all necessary elements of MCA 76-8-107, and therefore the state
provisions for Buildings for Lease or Rent are not applicable per MCA 76-8-103.
13. The City Commission determines that the adopted growth policy, Bozeman
Community Plan 2020, and the zoning provisions of Chapter 38, Unified Development Code,
contain all necessary elements to meet the requirements of MCA 76-3-616, and therefore
subdivisions not including zoning variances are exempt from public hearings and therefore the
noticing povisions for subdivisions require revision.
13. The City Commission determines that [SB161] establishes new procedural
requirements for certain subdivisions which must be incorporated into local subdivision review
procedures.
Section 2
That Section 38.100.040 of the Bozeman Municipal Code be amended as follows:
Sec. 38.100.040. Intent and purpose of chapter.
A. The intent of this unified development chapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law.
B. It is the purpose of these regulations to promote the public health, safety and general welfare, including the purposes for subdivision and zoning in MCA 76-1-102, 76-1-606, 76-2-304, 76-3-102, and 76-3-501 as may be amended from time to time. Further, it is the purpose of these regulations to exercise to the fullest extent the authority of the City’s Charter, utility, and all other powers. by: preventing the creation of private or public nuisances caused by noncompliance with the standards and procedures of this chapter; regulating the subdivision, development and use of land; preventing the overcrowding of land; lessening congestion in the streets and highways; being in accord with the growth policy; providing adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public improvements; requiring development in harmony with the natural environment; promoting preservation of open space; promoting
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development approaches that minimize costs to local citizens and that promote the effective and efficient provision of public services; securing safety from fire, panic, and other dangers; protecting the rights of property owners'; requiring uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey (MCA 76-3-102).
It is further the purpose of these regulations to: consider the character of the district and its peculiar suitability for particular uses, conserving the value of buildings, and encouraging the most appropriate use of land throughout the jurisdictional area (MCA 76-2-304).
C. Further, to support the purposes of MCA 76-2-304 and 76-3-102, these regulations are intended to promote and to provide for the:
1. Orderly development of the city;
2. Coordination of streets within subdivided land with other streets and roads, both existing and planned;
3. Dedication of land for streets and roadways and for public utility easements;
4. Improvement of streets;
5. Adequate open spaces for travel, light, air and recreation;
6. Adequate transportation, water, drainage and sanitary facilities;
7. Minimization of unnecessary congestion;
8. Avoidance of unnecessary environmental degradation;
9. Encouragement of subdivision development in harmony with the natural environment;
10. Avoidance of danger or injury to health, safety or general welfare by reason of natural hazard or the lack of water, sewer, drainage, access, transportation or other public services;
11. Avoidance of excessive expenditure of public funds for the provision of public services;
12. Manner and form of making and filing of plats for subdivided lands;
13. Administration of these regulations, by defining the powers and the duties of approving authorities, including procedures for the review and approval of all subdivision plats;
14. Division of the city into districts with uniformly applicable standards for development within each district;
15. Standards for the development and use of land;
16. Procedures for the review and approval for the development and use of land; and
17. Establishment of all other requirements necessary to meet the purposes of this chapter.
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D. Pursuant to MCA 76-2-304, 76-1-605 and 76-1-606, these regulations are also intended to implement the goals and objectives of the city's adopted growth policy.
C. This chapter has been evaluated for compliance with the growth policy as part of the process to adopt this chapter, and has been found to comply with the growth policy.
Section 3
That Section 38.100.070 of the Bozeman Municipal Code be amended as follows:
Sec. 38.100.070. Conditions of approval.
A. Regulation of the subdivision and development of land, and the attachment of reasonable conditions to land subdivided or developed, or a use undertaken, is an exercise of valid police power delegated by the state to the city. Persons undertaking the subdivision, development or use of land have the duty of complying with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the physical and economic development of the city, and to the safety and general welfare of the future lot owners and of the community at large. Such conditions may require compliance with more than the minimum standards established by this chapter.
B. Conditions of approval may not be added after final action to grant preliminary approval to a proposed subdivision or other development unless:
1. The conditions are necessary to correct inaccurate or incomplete information provided with an application, which error is discovered after the original approval action; and
2. The project is not completed within the time period provided in the approval or by this chapter; or
3. The requirement is part of an improvements agreement and security for completion of required improvements prior to filing a final plat or other development.
However, should the owner seek material modifications (e.g., changes to the intent, nature, or scope of a subdivision or development, or necessary improvements) to a previously approved subdivision, development or condition of approval, the entire application must be considered to be again opened for review and additional conditions may be applied. Modifications of conditions of approval must be reviewed through the same process as the original application. Final action includes the resolution of any appeals. The provisions of section 38.240.150 38.240.130.A.5.h may also apply to revisions of conditions for preliminary plats.
C. Mandatory cCompliance with the explicit termsrequirements and procedures of this chapter or other duly adopted applicable law, standard, or procedure whether adopted by the City or other authority does not constitute a conditions of approval and is not affected by the limitations of subsection B of this section or other limitations on conditions of approval.
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Section 4
That Section 38.100.080 of the Bozeman Municipal Code be amended as follows:
Sec. 38.100.080. Compliance with regulations required.
A. No land may hereafter be subdivided, used or occupied, and no building, structure or part thereof may hereafter be erected, constructed, reconstructed, moved or structurally altered, and no development may commence unless it is in conformity with all of the regulations herein specified for the district in which it is located. It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations.
B. To the extent reasonable, all city-owned land is subject to applicable regulations of the underlying zoning district.
Section 5
That Section 38.200.010 of the Bozeman Municipal Code be amended as follows:
Sec. 38.200.010. Review authority.
A. The city commission has the authorityright to review and require revisions to all development proposals subject to this chapter, and delegates that authority in certain circumstances as set forth below. The purpose of this review is to prevent demonstrable adverse impacts of the development upon public safety, health or general welfare, or to provide for its mitigation; to protect public investments in roads, drainage facilities, sewage facilities, water facilities, and other facilities; to conserve the value of adjoining buildings and/or property; to protect the character of the city; to protect the right of use of property; advance the purposes and standards of this chapter and the adopted growth policy; and to ensure that the applicable regulations of the city are upheld.
1. The city commission retains to itself under all circumstances the review of the following:
a. Subdivisions which do not qualify as a subdivision exemption per article 2 of this chapter;
b. Amendments to the text of this chapter or amendment to the zoning map;
c. Requests for cash-in-lieu of parkland dedications, except:
(1) In the B-3 zone district; or
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(2) When by resolution the city commission delegates decisions on cash-in-lieu for development for which it would not otherwise be the review authority.
d. Extensions of subdivision preliminary plat approvals for periods greater than two years;
e. Planned unit development preliminary plans and major amendments to planned unit developments;
f. Appeals from administrative interpretations and final project review decisions;
g. Approval of preliminary park master plans when associated with a development for which the City Commission is the review authority;
h. Large scale retail per section 38.360.160;
i. Exceptions to installation of bikeways and boulevard trails per section 38.400.110.E;
j. Conditional use permits when no board of adjustment is established;
k. More than two deviations or where deviation is for more than 20 percent of standard;
l. Amendments to text or zoning map per division 38.260.
2. The city commission conducts public hearing for applications under 76-2-402, MCA.
B. The community development director must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny all applications subject to this chapter except those listed below. Decisions of the community development director are subject to the appeal provisions of division 38.250 of this chapter.
1. Projects excluded from community development director review:
a. Those applications specifically reserved to another approval authority as stated in this section;
b. Development of city property which does not conform to all standards of this chapter;
c. Any application involving variances from this chapter;
2. Exception. The city commission may, by an affirmative, simple majority vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development application normally subject to the approval of the community development director. The vote must occur prior to the action of the community development director.
C. When a board of adjustment has been appointed per section 2.05.2800, the board of adjustment must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny those applications specifically delegated to it by the city
Commented [CS1]: Moves final park plan review to the staff level similar to other final wrap up actions of Commission decisions, moves review of park plans to administrative review for administrative review projects.
Commented [CS2]: Moved to City Engineer duties.
Commented [CS3]: Duplicates 1.b
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commission. Decisions of the BOA are subject to the appeal provisions of division 38.250 of this chapter.
1. Exception. The city commission may, by an affirmative vote of three of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the board of adjustment. The vote must occur prior to the action of the board of adjustment.
D. The city engineer must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following site elements and processes:
1. Site access and storm water for reuse and further development per section 38.230.160.B;
2. Location of storm water facilities within neighborhood centers per section 38.410.020;
3. The placement of private utility easements within public rights-of-way owned or controlled by the city;
4. The maximum length of dead end water mains per section 38.410.070;
5. The maximum length of service lines per section 38.410.070;
6. Exceptions to storm water controls per section 38.410.080;
7. All modifications or proposed standards in section 38.400.010 except subparagraphsection 38.400.010.A.1, Relation to undeveloped areas;
8. Plans and specifications for public infrastructure and infrastructure to be granted to the public per sections 38.400.060 Street improvement standards paragraphs. A and B.1—3;
9. Alternate curb return radii per section subparagraph 38.400.090.C.3;
10. Locations and modifications to drive accesses to public streets per sections paragraphs 38.400.090.G and H;
11. Street improvement standards and modifications departures therefrom per section 38.400.060;
12. Departures for street vision triangles per section 38.400.100;
13. Backing into alleys, parking stall aisle and driveway design for surfacing and curbing per section paragraphs 38.540.020.D, F and J;
14. Protection of landscaped areas per section paragraph 38.550.050.H;
15. All actions required of the flood plain administrator per article 6 of this chapter;
16. Modifications in required completion time for subdivision improvements per section subparagraph 38.270.030.B.1;
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17. The use of a financial guarantee for paving of streets per section paragraph 38.270.060.CB;
18. The waiver of required information per subparagraph section 38.220.080.A.2.i(3);
19. Requirement for a traffic impact analysis and determination of its contents per section subparagraph 38.220.120.A.2.c(5);
20. Specifications and modifications therefrom for paving of streets and parking areas;
21. Designation of street classifications for collectors and arterials not shown in the long range transportation plan; and
22. Alternate parking angles for surface and structured parking stall configurations listed in Table 38.540.020. All other numeric standards apply.
23. Exceptions or modifications to installation of bikeways and boulevard trails per section 38.400.110.E;
E. The director of public works must review and upon recommendation from the applicable advisory bodies as needed approve, approve with conditions or deny the following development elements and processes:
1. Waiver of the requirement to extend water, sewer, and streets to the perimeter of property being developed per section 38.410.070;
2. Provision of water rights as authorized in section 38.410.130;
3. Subject to section 38.400.060, exceptions to the level of service standards established in section 38.400.060.B.4;
4. Payment of cash in-lieu of capital facilities established in section 38.270.070.C; and
5. Acceptable alternative sidewalk design or materials per section 38.400.080.
F. The director of parks and recreation must review, and as needed approve, approve with conditions or deny the following development elements and processes:
1. Ddetermine the classification of recreation pathwaystrails per section 38.420.110.D.
2. Approve final park plans.
3. Approve preliminary park plans when a development is subject to approval by the Director of Community Development
4. Approval of calculations of cash-in-lieu of parkland amounts for development of property when:
a. the initial dedication of land per 38.420.020 has been provided;
b. money to be paid is to address mitigation of recreation impacts above the minimum land dedication; and
Commented [CS4]: Keeps administrative reviews entirely administrative.
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c. a park master plan has been approved for the park servicing the land to be developed.
G. As detailed in division 38.200 of this chapter, the city commission authorizes the applicable advisory bodies to review and to make recommendations to the review authority regarding development proposals. Under this section, when advisory boards review and make recommendations to the review authority they act in a quasi-judicial capacity. Recommendations do not constitute votes of approval or denial.
H. The city commission or its designated representatives may require the applicant to design the proposed development to reasonably minimize potentially significant adverse impacts identified through the review required by these regulations. The city commission or its designated representatives may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the development as submitted. Recognizing that the standards of this chapter are minimum requirements and the public health, safety, and general welfare may be best served by exceeding those minimums, the city commission or community development director may require as a condition of approval mitigation exceeding the minimums of this chapter.
Section 6
That Section 38.220.030 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.030. Subdivision pre-application submittal materialsplan.
A. The pre-application plan may be a freehand sketch, legibly drawn, showing approximate boundaries, dimensions, areas and distances. The plan may be drawn directly on a print of a topographic survey required for the preliminary plat and must include:
1. Sketch map. A sketch map showing:
a. The names of adjoining subdivisions and numbers of adjoining certificates of survey, along with adjacent lot and tract lines.
b. Location, name, width and owner of existing or proposed streets, roads and easements within the proposed subdivision; existing streets, roads and easements within adjacent subdivisions and tracts; and the name of street or road that provides access from the nearest public street or road to the proposed subdivision.
c. Location of all existing structures, including buildings, railroads, power lines towers, and improvements inside and within 100 feet of the proposed subdivision.
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d. Zoning classification within the proposed subdivision and adjacent to it. The zoning proposed for the subdivision, if a change is contemplated and if an adjacent PUD is in place or proposed.
2. Topographic features. Topographic features of the proposed subdivision and adjacent subdivisions and tracts, including:
a. A current U.S. Geological Survey topographic map at the largest scale available with the subdivision clearly outlined.
b. Embankments, watercourses, drainage channels, areas of seasonal water ponding, areas within the designated floodway, marsh areas, wetlands, rock outcrops, wooded areas, noxious weeds and areas of active faults. Include copies of any permits listed in section 38.220.020 that have been obtained for the project.
3. Utilities. The existing and proposed utilities located on and adjacent to the proposed subdivision including:
a. Location, size and depth of sanitary and storm sewers, water mains and gas lines.
b. Location of fire hydrants, electric lines, telephone lines, sewage and water treatment, and storage facilities.
4. Subdivision layout. The proposed layout of the subdivision showing the approximate:
a. Subdivision block, tract, and lot boundary lines, with numbers, dimensions, and areas for each block, tract and lot.
b. Street location, right-of-way width, and name.
c. Easement location, width and purpose.
d. Sites to be dedicated or reserved as park, common open space or other public areas, with boundaries, dimensions and areas.
e. Sites for commercial centers, churches, schools, industrial areas, multi-household units, manufactured housing community and uses other than single-household residences.
5. Development plan. An overall development plan indicating future development of the remainder of the tract, if the tract is to be developed in phases.
6. Name and location. A title block indicating the proposed name, quarter-section, section, township, range, principal meridian and county of subdivision.
7. Notations. Scale, north arrow, name and addresses of owners and developers, and date of preparation.
8. Variances. A list of variance requests which will be submitted with the application for preliminary plat application.
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9. Waivers. A list of waivers requested from the requirements of section 38.220.060 must be submitted with the pre-application and an explanation of why such information is not relevant or was previously provided.. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application meeting or plan review.
10. Parks and recreation facilities. The following information must be provided for all land proposed to meet parkland dedication requirements:
a. Park concept plan, including:
(1) Site plan for the entire property; and
(2) The zoning and ownership for adjacent properties; and
(3) The location of any critical lands (wetlands, riparian areas, streams, etc.); and
(4) General description of land, including size, terrain, details of location and history, water features, and proposed activities; and
(5) Description of trails or other recreational features proposed to connect the proposed park area to other park or open space areas.
b. If the applicant intends to request approval of cash-in-lieu, a response to the cash-in-lieu review factors established by resolution of the city commission.
12. Affordable housing. Describe how the subdivision proposes to satisfy the requirements of division 38.380. Describe any intended use of 38.380 for creation of affordable housing with the subdivision.
13. Wildlife. Describe key wildlife habitat issues that may be associated with proposed subdivision. Describe how the subdivision will consider fish and wildlife resources in the course of project design. Describe subdivision early planning suggestions from local FWP field biologists at FWP regional offices. This description should consider the following:
a. The species of fish and wildlife, including those designated as species of concern, that use all or part of the project planning area (proposed subdivision site plus a one-half-mile radius around it) on a year-round, seasonal, or periodic basis.
b. Existing vegetation, aquatic habitats, and wildlife habitats in the project planning area (e.g., water bodies and their associated riparian habitat, big game winter range, native grassland or shrub land habitats, areas used by black or grizzly bears).
c. The proposed subdivision's potential impacts on wildlife and wildlife habitat, both during construction and at full build-out, taking any applicable fish and wildlife habitat standards into account.
Commented [CS5]: Process step should not be in submittal requirements. 38.240.110 is the better location for the statement.
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14. Waivers of right to protest. Include copies of or the recorded document numbers of all existing waivers of right to protest special improvement districts or maintenance districts which are applicable to the property proposed to be subdivided.
15. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous payment-in-lieu of water rights, groundwater certificates, statements of claim, provisional permits, decreed rights, canal or water users association shares etc.
16. Agricultural water user facilities. Identify the location of all agricultural water user facilities and the contact information for the facility user/representative per 38.360.280.
Section 7
That Section 38.220.040 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.040. Subdivision preliminary plat.
A. The preliminary plat must be legibly drawn as specified in the application form provided by the community development department. Where accurate information is required, surveying and engineering data must be prepared under the supervision of a registered engineer or registered land surveyor, licensed in the state, as their respective licensing laws allow. The plat submittal must include the following:
1. Pre-application information. All information required with the pre-application plan, as outlined in section 38.220.030.
2. Subdivision information. Name and location of the subdivision, scale, scale bar, north arrow, date of preparation, lots and blocks (designated by number), the dimensions and area of each lot, and the use of each lot, if other than for single-household.
23. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department.
34. Streets, roads and grades. All streets, roads, alleys, avenues, highways and easements; the width of the right-of-way, grades and curvature of each; existing and proposed road and street names; and proposed location of intersections for any subdivision requiring access to arterial or collector streets.
45. Adjoining subdivisions. The names of adjoining platted subdivisions and numbers of adjoining certificates of survey.
56. Adjoining owners. Names and addresses of record owners of lots and tracts immediately adjoining the proposed subdivision.
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67. Perimeter survey. An approximate survey of the exterior boundaries of the platted tract with bearings, distances, and curve data indicated outside of the boundary lines. When the plat is bounded by an irregular shoreline or a body of water, the bearings and distances of a closing meander traverse must be given.
78. Section corner. The approximate location of all section corners or legal subdivision corners of sections pertinent to the subdivision boundary.
89. Phased improvements. If the required improvements are to be completed in phases after the final plat is filed, the approximate area of each phase must be shown on the plat. If a phase depends on improvements not included within the geographic area of a phase, or if timing of construction of improvements is separate from the timing of construction of that phase, those improvements and associated phases must be identified.
910. Contours. Ground contours must be provided for the tract according to the following requirements:
Table 38.220.040
Where the average slope is: Contour intervals must be:
Under 10 percent 2 feet (if all lots are over one acre in size, five
feet intervals may be used)
Between 10 and 15 percent 5 feet
Greater than 15 percent 10 feet
1110. Waivers. List of waivers granted from the requirements of section 38.220.060 during the pre-application process must be submitted with the preliminary plat application.
1211. Request for exemption from department of environmental quality review. If the developer is proposing to request an exemption from the department of environmental quality for infrastructure plan and specification review, the preliminary plat application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request.
13. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.100 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622.
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Sec. 38.220.050. Preliminary plat supplements required for all subdivisions.
AB. The following supplemental information must be submitted along with the preliminary plat.
1. Area map. A map showing all adjacent sections of land, subdivision, certificates of survey, streets and roads.
2. Subdivision map. Map of entire subdivision as specified on the application form provided by the community development department.
32.Non-compliance with standards. Provide a written response to:
a. Variances. Provide Aa written statement describing any requested subdivision variance and the facts of hardship upon which the request is based (refer to division 38.250 of this chapter).
b. All others. Provide Aa written statement: describing any intended departure, deviation, modification, non-compliance or alternative compliance to any standard applicable to a subdivision review;, providing a BMC citation to the authority authorizing the by which such non-compliance; is authorized by BMC citation, and providing the applicable criteria of review.
34. Noticing materials required by section 38.220.420.
45. Documents and certificates. Draft copy of the following documents, and certificates to be printed on or to accompany the preliminary plat:
a. Covenants, restrictions and articles of incorporation for the property owners' association if covenants are proposed to ensure compliance with regulatory standards.
b. Encroachment permits or a letter indicating intention to issue a permit where new streets, easements, rights-of-way or drive aisles intersect state, county or city highways, streets or roads.
c. A letter of approval or preliminary approval from the city where a zoning change is necessary.
cd. A draft of such other appropriate certificates.
de. Provision for maintenance of all streets (including emergency access), parks open spaces to meet requirements of 38.420 or 38.410.040or otherwise, storm water facilities, and other required improvements if not dedicated to the public, or if private.
56. Street profile sheets. Profile sheets for street grades greater than five percent.
67. Application and fee. Completed preliminary plat application form, with the original signatures of all owners of record or their authorized representatives, and the required review fee. If an authorized representative signs on behalf of an owner of record, a copy of the authorization must be provided.
Commented [CS6]: Changes with the review process. Expedited subdivisions may not have anything other than direct code compliance.
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8. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements.
9. Sanitation information. When the subdivision does not qualify for the certification established in section 38.240.100 the subdivider must provide the information regarding sanitation set forth in MCA 76-3-622.
Section 8
That section 38.220.060 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.060. Additional subdivision preliminary plat supplements Documentation of
compliance with adopted standards.
A. The following list of preliminary plat application supplements information must also be provided for with all subdivisions preliminary plat applications in order to document compliance with adopted development standards unless waived by the development review committee during the pre-application process per 38.240.110. The developer must include documentation of any waivers granted by the city after the pre-application meeting or plan review. Additional relevant and reasonable information may be required to adequately assess whether the proposed subdivision complies with this chapter, and the Montana Subdivision and Platting Act, and other applicable standards. The need for additional information is determined during the pre-application process.
1. Surface water.
a. Mapping. Locate on a plat overlay or sketch map all surface waters and the delineated floodplain which may affect or be affected by the proposed subdivision including:
(1) Natural water systems such as natural streams, creeks, stream/ditches, drainages, waterways, gullies, ravines or washes in which water flows either continuously or intermittently and has a definite channel, bed and banks.
(2) Artificial water systems such as canals, ditches, ditch/streams, aqueducts, reservoirs, irrigation or drainage systems.
Commented [CS7]: Same wording was relocated elsewhere.
Commented [CS8]: Enable use of simplified subdivision review processes of 76-3-616 and Senate Bill 161.
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b. Description.
(1) Describe all surface waters which may affect or be affected by the proposed subdivision including name, approximate size, present use and time of year when water is present.
(2) Describe proximity of proposed construction (such as buildings, sewer systems, streets) to surface waters.
c. Water body alteration. Describe any existing or proposed streambank or shoreline alterations or any proposed construction or modification of lake beds, watercourses or irrigation ditches. Provide information on location, extent, type and purpose of alteration. Provide a revised floodplain analysis report, in compliance with article 6 of this chapter, as appropriate.
d. Wetlands. If the subdivision contains wetlands, as defined in section 38.700.210 of this chapter, then a delineation of the wetland meeting standards of Division 38.610 must be provided and the location of existing and proposed modifications to wetlands must be shown on an overlay of the proposed plat. must be shown on the preliminary and final plats.
e. Permits. Include copies of any permits listed in section 38.41.020 that have been obtained for the project.
2. Floodplains. A floodplain analysis report must be submitted with the preliminary plat in compliance with Division 38.600 article 6 of this chapter.
3. Groundwater.
a. Depth. Establish the seasonal minimum and maximum depth to the water table, dates on which these depths were determined, and the location and depth of all known aquifers which may be affected by the proposed subdivision. The high water table must be determined from tests taken during the period of major concern as specified in writing by the county environmental health department. Specific locations for test holes may also be determined by the county environmental health department.
b. Steps to avoid degradation. Describe any steps necessary to avoid the degradation of groundwater and groundwater recharge areas.
4. Geology; soils; slopes.
a. Geologic hazards. Identify geologic hazards affecting the proposed subdivision which could result in property damage or personal injury due to rock falls or slides; landslides, mud or snow; surface subsidence (i.e., settling or sinking); or seismic activity.
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b. Protective measures. Explain what measures will be taken to prevent or materially lessen the danger of future property damage or injury due to any of the hazards referred to in subsection A.4.a of this section.
c. Unusual features. Provide a statement describing any unusual soil, topographic or geologic conditions on the property which limit the capability for building or excavation using ordinary and reasonable construction techniques. The statement should address conditions such as shallow bedrock, high water table, unstable or expansive soil conditions, and slope. On a map, identify any slopes in excess of 15 percent grade.
d. Soils map. The subdivision must be overlaid on the county soil survey maps obtained from the Natural Resource and Conservation Service (NRCS). The maps are 1:24,000 in scale. These maps may be copied without permission. However, enlargement of these maps could cause misunderstanding of the detail of mapping. Soils were mapped using a minimum delineation of five acres, and these soils reports were intended to alert developers to possible problems and the need for a more detailed on-site investigation. The developer must provide the following soil reports, which can be obtained from the NRCS:
(1) The physical properties and engineering indexes for each soil type;
(2) Soil limitations for utilities, building and site development, and water features for each soil type;
(3) Hydric soils report for each soil type. If hydric soils are present, the developer must provide a wetlands investigation by a certified consultant, using the current Federal Manual for Identifying and Delineating Jurisdictional Wetlandsper Division 38.610; and
(4) The developer must provide any special design methods planned to overcome the above limitations.
e. Cuts and fills. Describe the location and amount of any cut or fill three or more feet in depth. These cuts and fills should be indicated on a plat overlay or sketch map. Where cuts or fills are necessary, describe any plans to prevent erosion and to promote revegetation such as replacement of topsoil and grading.
5. Vegetation.
a. Vegetation map. On a plat overlay or sketch map :
(1) Indicate the distribution of the major vegetation types such as marsh, grassland, shrub, coniferous forest, deciduous forest or mixed forest.
(2) Iidentify critical plant communities such as stream bank or shoreline vegetation; vegetation on steep, unstable slopes; and vegetation on soils highly susceptible to wind or water erosion.
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b. Protective measures. Describe measures to preserve trees and critical plant communities (e.g., design and location of streets, lots and open spaces).
c. Noxious weed management and revegetation plan. Noxious weeds must be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer must have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds must be submitted with the preliminary plat application. This plan must ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements.
6. Wildlife.
a. Species. Describe any endangered species or species of concern fish and wildlife which use the area affected by the proposed subdivision.
b. Critical areas. Identify on a plat overlay or sketch map of the proposed subdivision any known critical, significant or "key" wildlife areas, such as big game winter range, waterfowl nesting areas, habitat for rare or endangered species or wetlands.
c. Pets/human activity. Describe the expected effects of pets and human activity on wildlife.
cd. Public access. Describe the effects on public access to public lands, trails, hunting or fishing areas.
de. Protective measures. Describe any proposed measures to protect or enhance wildlife habitat or to minimize degradation (e.g., keeping building and streets back from shorelines, setting aside wetlands marshland as undeveloped open space).
ef. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on fish and wildlife with the state department of fish, wildlife and Parks (FWP). With the preliminary plat application, the developer must provide written documentation from FWP that:
(1) Verifies that FWP has reviewed the proposed plat;
(2) Lists any FWP recommendations; and
(3) Outlines any mitigation planned to overcome any adverse impacts.
7. Historical features.
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a. Affected areas. Describe and locate on a plat overlay or sketch map any known or possible historic, paleontological, archaeological, or cultural sites, structures, or objects which may be affected by the proposed subdivision.
b. Protective measures. Describe any plans to protect such sites or properties.
c. Procedures. Describe procedures to be followed if any historic, paleontological, archaeological, cultural sites, structures or object are found on site during site preparation and construction.
d. Discussion of impact; documentation. The developer must discuss the impact of the proposed development on any historic features, and the need for inventory, study and/or preservation with the state historic preservation office (SHPO). The developer must provide written documentation from SHPO that:
(1) Verifies that SHPO has reviewed the proposed plat;
(2) Lists any SHPO recommendations;
(3) Outlines any plans for inventory, study, and/or preservation; and
(4) Describes any mitigation planned to overcome any adverse impacts.
e. Preparation of information. Information on historical sites must be prepared by a qualified professional, including persons with a professional or educational background in history, architectural history, archaeology, art history, historic preservation, anthropology and cultural resource management.
78. Agriculture. When a proposed development is adjacent to land used for agricultural production.
a. Number of acres in production and type of production.
b. Agricultural operations in the vicinity, and other uses of land in the general vicinity.
c. The productivity of the land.
d. Whether or not the property is part of a viable farm unit, and whether the property was under production during the last regular season.
ea. What measures will be taken, if any, to control family pets.
fb. Fencing of agricultural land. Describe any existing fence lines around the subdivision development boundary which protect agricultural lands under an ownership other than of the developer, and describe any measure which will be taken to ensure that the owners of the subdivision development will share with the owner of the agricultural lands in the continued maintenance of the fence.
89. Agricultural water user facilities.
Commented [CS9]: Per Growth Policy if we annexed it it has already been decided it was ok to take out of ag operations.
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a. Type, description, ownership and users of facilities per 38.360.280 and 38.410.060.
b. Written documentation demonstrating active use of facilities, for example the delivery of non-potable water supplies for irrigation, conversion to stormwater facilities, or other use. If a facility is not being actively used nor intended to be used in the future, include a written plan for discontinuance including all documentation required pursuant to Montana Law.
c. Describe any proposed realignment. All realignments must comply with all relevant requirements of Montana law.
d. Information from the owner(s) of the facility concerning the proposed use or discontinuance of the facility.
910. Water and sewer. Provide an engineering design report and/or other documentation demonstrating that adequate water distribution systems and capacity, and sewage collection and disposal systems and capacity, exists or will be provided to serve the proposed subdivision consistent with the City’s adopted design standards and Chapter 40.
a. Water rights. Describe how the proposed subdivision intends to satisfy section 38.410.130. Provide documentation of all water rights appurtenant to the proposed subdivision; e.g. previous estimates or actual payment-in-lieu of water rights, certified well logs, decrees or adjudications, etc.
b. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed.
1011. Stormwater management. A stormwater management plan meeting the requirements of section 40.04.700 and the city's adopted stormwater master plan.
1112. Streets, roads and alleys.
a. Description. Describe any proposed new public or private streets, roads or alley, or substantial improvements of existing public or private streets, roads or alleys. The developer must demonstrate that the land to be subdivided has access onto a legal street and the future streets will be consistent with the City’s adopted design standards, Article 34.4, the long range transportation plan, and other relevant standards.
b. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development.
cb. Access to arterial. Discuss whether any of the individual lots or tracts have access directly to arterial streets or roads, and if so, the reason access was not provided by means of a street within the subdivision and how the access complies with section 38.400.090.
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dc. Modification of existing streets, roads or alleys. Explain any proposed closure or modification of existing streets, roads or alleys.
ed. Dust. Describe provisions considered for dust control on alleys.
fe. Pollution and erosion. Explain how street, road and alley maintenance will be provided to meet the department of environmental quality guidelines for prevention of water pollution and erosion and who is proposed to provide the required maintenance.
gf. Traffic generation. Discuss how much daily traffic will be generated on existing local and neighborhood streets, roads and alleys, when the subdivision is fully developed, and provide the following information:
(1) The report format must be as follows:
(a) Trip generation, using the Institute of Transportation Engineers Trip Generation Manual;
(b) Trip distribution;
(c) Traffic assignment;
(d) Capacity analysis;
(e) Evaluation; and
(f) Recommended access plan, including access points, modifications and any mitigation techniques.
(2) The report must include the following information:
(a) Land use and trip generation in the form of a table of each type of land use, the number of units or square footage, as appropriate, the trip rates used (daily and peak) and resulting trip generation.
(b) Traffic graphics, which show:
(i) A.M. peak hour site traffic;
(ii) P.M. peak hour site traffic;
(iii) A.M. peak hour total traffic;
(iv) P.M. peak hour total traffic; and
(v) Total daily traffic (with site-generated traffic shown separately).
(c) A.M. and P.M. capacity analysis with an A.M. and P.M. peak-hour capacity analysis provided for:
(i) All major drive accesses that intersect collector or arterial streets or roads; and
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(ii) All arterial-arterial, collector-collector and arterial-collector intersections within one-half mile of the site, or as required by the city engineer during the pre-application review, concept plan review, or informal project review.
(d) For two-way stop controlled intersections, analysis of whether the intersection would satisfy signalization warrants if the two-way stop control was removed.
hg. Capacity. Indicate the levels of service (before and after development) of existing and proposed streets and roads, including appropriate intersections, to safely handle any increased traffic. Describe any anticipated increased maintenance that will be necessary due to increased traffic and who will pay the cost of maintenance.
h. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development.
i. Traffic calming. Detailed drawings of any proposed traffic calming installations, including locations and turning radius templates.
j. The information needed to demonstrate proposed compliance with 38.270. Special care is needed when concurrent construction is proposed.
1213. Non-Municipal Utilities. The developer must submit a copy of the subdivision plat to all relevant utility companies. With the preliminary plat, the developer must provide written documentation of the following:
a. Affected utilities. Indicate which affected utilities the subdivision plat has been submitted to for review, and include a copy of responses.
b. Include a description of:
(1) The method of furnishing electric, natural gas, cable TV, internet or telephone service, where provided.
(2) Estimated timing of each utility installation.
(3) The developer must provide a written statement from the utility companies that the proposed subdivision can be provided with service.
14. Educational facilities. With the preliminary plat, provide a written statement from the administrator of the appropriate school system indicating whether the increased enrollment can be accommodated by the present personnel and facilities and by the existing school bus system.
1315. Land use.
a. Indicate the proposed use and number of lots or spaces in each:
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(1) Residential area, single-household;
(2) Residential area, multiple-household. Types of multiple-household structures and numbers of each (e.g., two or four unit structures);
(3) Planned unit development (number of units);
(34) Condominium (number of units);
(5) Manufactured housing community (number of units);
(46) Recreational vehicle park;
(57) Commercial or industrial; and
(68) Other (please describe).
1416. Parks and recreation facilities. The following information must be provided for all land used to meet parkland dedication requirements:
a. Park plan. A park plan, including:
(1) Site plan with one-foot contour topographic survey for the entire property; showing proposed developer installed improvements on the initial park plan and proposed future improvements on the future park plan, and phasing proposed if any, exact product specifications are not required;
(2) Drainage areas;
(3) Utilities within, serving, and adjacent to the property;
(4) The zoning and ownership for adjacent properties; Existing or proposed utility easements within the property;
(5) The location of any critical lands (wetlands, riparian areas, streams, etc.) and location of watercourse setbacks and any permits from non-city agencies required to execute the proposed plan;
(6) Park conceptual landscaping plan, prepared by a qualified landscape professional in accordance with section 38.220.100 unless the parks department has adopted an alternate plan standard, showing the location and specific types and species of plants, shrubs, trees as well as grass seed mixes and the irrigation system including but not limited to identification of water source, points of connection, mains, laterals, valves, zones, and sprinkler heads;
(7) General description of land, including size, terrain, details of location and history, water features, and proposed activities;
(8) Trail design and construction showing compliance with adopted city standards and trail classifications;
Commented [CS10]: PUD isn’t a plat land use type, it is a review process.
Commented [CS11]: Manufactured homes are another form of SHR
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(9) The requirement for approval of the final park plan by the review authority with a recommendation from the city recreation and parks advisory board prior to any site work;
(10) The requirement for a preconstruction meeting prior to any site work;
(911) Appropriate sections from the design guidelines for city parks;
(102) Cost estimate, installation phasing and responsibility, and maintenance plan tasks and responsibility for custom features or atypical designsall improvements;
(113) If playground equipment will be provided with initial installation by the subdivider, information including the manufacturer, installation data and specifications, installer, type of fall zone surfacing and age group intended for use; otherwise a general identification of proposed function;
(124) Soils information and analysis;
(135) A description of how the proposed park plan is consistent with the goals of the city's current long range parks plan for parks;
(146) A description of how the proposed park will meet the recreational needs of the residents of the development;
(157) The proposed manner of providing irrigation to the park including water source, amount of water expected to be consumed annually, and proposed manner of transfer of water facilities and rights to the city; and
(168) A phase I environmental assessment of the area proposed to be transferred to the city or property owner's association.
b. Park maintenance.
(1) Maintenance information, including levels of maintenance, a maintenance schedule, and responsible parties;
(2) Weed control plan, including responsible parties; and
(3) Plan for garbage collection, snow removal and leaf removal including responsible parties.
bc. Irrigation information.
(1) An irrigation system map generally showing the locations and types of lines, including depth, water source, heads, electric valves, quick couplers, drains and control box; and
(2) If a well will be used for irrigation, a certified well log must be submitted showing depth of well, gpm, pump type and size, voltage, water rights, etc.
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cd. Phasing. If improvements will be phased, a phasing plan must be provided including proposed financing methods and responsibilities.
de. Cash-in-lieu and Improvements-in-lieu. If the development includes a proposal for cash-in-lieu or improvements-in-lieu of park a specific justification responding to the cash- in-lieu review factors established by resolution of the city commission. If improvements-in-lieu are proposed specific costs of proposed improvements and costs to install must be provided.
1517. Neighborhood center plan. A neighborhood center plan must be prepared and submitted for all subdivisions containing a neighborhood center.
1618. Lighting plan. The following subdivision lighting information must be submitted for all new subdivisions development where lighting is proposed other than within the street right of way:
a. For subdivision applications where lighting is required or proposed, l ighting plans must be submitted to the city for review and approval, and must include:
(1) Isofootcandle plots for individual fixture installations, and ten-foot by ten-foot illuminance-grid plots for multifixture installations, which demonstrate compliance with the intensity and uniformity requirements as set forth in this chapter.
(2) Description of the proposed equipment, including fixture manufacturer's cutsheets, photometrics, glare reduction devices, lamps, on/off control devices, mounting heights, pole foundation details and mounting methods.
(3) The lighting plan must be prepared, and certified for compliance with the city's design requirements and illumination standards, by a qualified lighting professional. Qualified lighting professionals include electrical engineers, architects, lighting designers and manufacturers representatives.
(4) Lighting calculations may include only the illuminated areas; areas occupied by buildings or other nonlighted areas must be excluded from calculations.
Proposed fixture locations, types, source of power, and demonstration of compliance with city lighting standards.
b. When requested by the city, the applicant must also submit a visual-impact plan that demonstrates appropriate steps have been taken to mitigate on-site and off-site glare and to retain the city's character.
c. Post-approval alterations to lighting plans or intended substitutions for approved lighting must only be made after city review and approval.
1719. Miscellaneous.
a. Public lands. Describe how the subdivision will affect access to any public lands. Where public lands are adjacent to or within 200 feet of the proposed
Commented [CS12]: Expectation is that anything within the ROW will be addressed through Engineering plan and specification review later.
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development, describe present and anticipated uses for those lands (e.g., open space, recreation, etc.), and how public access will be preserved/enhanced.
b. Hazards. Describe any health or safety hazards on or near the subdivision, such as mining activity or potential subsidence, high pressure gas lines, dilapidated structures or high voltage power lines. Any such conditions must be accurately described and their origin and location identified. List any provisions that will be made to mitigate these hazards. Also describe any on-site or off-site land uses creating a nuisance.
c. Wildlands-urban interface. Describe the subdivision's location within or proximity to the wildlands-urban interface (WUI) and ember zone designated by the most recent city-adopted hazard mitigation plan. Describe any hazard from the subdivision's proximity to the WUI. List any provisions that will be used to mitigate these hazards and reduce structure ignitability.
1820. Affordable housing. Describe how the subdivision will integrate with satisfy the requirements of division 38.380. The description must be of adequate detail to clearly identify those lots complying withdesignated as subject to division 38.380 compliance requirements and to make the obligations placed on the affected lots readily understandable.
a. On all lots intended to comply with be used to satisfy the requirements of division 38.380, the allowable building envelope must be depicted.
19. A description of how the proposed subdivision advances the adopted growth policy.
Section 9
That Section 38.220.070 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.070. Final plat.
A. The following materials must be provided with each application for final plat approval. Materials must be provided in the number of copies and form established by the director of community development.
1. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions or other demonstrations of compliance with standards have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal.
21. A letter from the city engineer certifying that the following documents have been received:
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a. As-built drawings, i.e., copies of final plans, profiles, grades and specifications for public improvements, including a complete grading and drainage plan; and/or
b. Approved and executed concurrent construction plan or improvements agreement.
bc. Copy of the state highway access or encroachment permit where a street created by the plat will intersect with a state highway.
32. Noxious weed MOU. Prior to final plat approval, a memorandum of understanding must be entered into by the weed control district and the developer. The memorandum of understanding must be signed by the district and the developer prior to final plat approval, and a copy of the signed document must be submitted to the community development department with the application for final plat approval.
43. Final park plan. For all land used to meet parkland dedication requirements, a final park plan must be submitted to the city for review and approval prior to final plat. The final park plan must include all of the information listed in section 38.220.060.A.1516 and must include evidence of compliance with the installation requirements of division 38.270.
54. Irrigation system as-builts. The developer must provide irrigation system as-builts, for all irrigation installed in public rights-of-way and/or land used to meet parkland dedication requirements, once the irrigation system is installed. The as-builts must include the exact locations and type of lines, including accurate depth, water source, heads, electric valves, quick couplers, drains and control box.
65. Affordable housing. If the plat has used the provisions of division 38.380, Tthe developer must provide a description of how the subdivision has complied with division 38.380. The description must be of adequate detail to clearly identify those lots designated as subject to division 38.380 compliance requirements and to make the obligations placed on the affected lots readily understandable.
76. Conditions of approval. A sheet(s) of the plat depicting conformance with subdivision application approval must be submitted as set forth in 24.183.1107 ARM as may be amended and as required by the county clerk and recorder, and must:
a. Be entitled "Conditions of Approval of [insert name of subdivision]" with a title block including the quarter-section, section, township, range, principal meridian, county, and, if applicable, city or town in which the subdivision is located.
b. Contain any text and/or graphic representations of requirements by the governing body for final plat approval including, but not limited to, setbacks from streams or riparian areas, floodplain boundaries, no-build areas, building envelopes, or the use of particular parcels.
c. Include a certification statement by the landowner that the text and/or graphics shown on the conditions of approval sheet(s) represent(s) requirements by the
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governing body for final plat approval and that all conditions of subdivision application have been satisfied.
d. Include a notation stating that the information shown is current as of the date of the certification, and that changes to any land-use restrictions or encumbrances may be made by amendments to covenants, zoning regulations, easements, or other documents as allowed by law or by local regulations.
e. Include a notation stating that buyers of property should ensure that they have obtained and reviewed all sheets of the plat and all documents recorded and filed in conjunction with the plat, and that buyers of property are strongly encouraged to contact the local community development department and become informed of any limitations on the use of the property prior to closing.
f. List all associated recorded documents and recorded document numbers.
g. Include a tabulation of parkland credit for the entire subdivision and attributed to each lot.
h. Include a tabulation of open space.
i. List easements, including easements for agricultural water user facilities.
87. Documents. The following documents must accompany the final plat:
a. A title report or certificate of a title abstractorsubdivision guarantee per MCA 76-3-612;
b. Any covenants or deed restrictions relating to the subdivision;
c. The security required pursuant to section 38.270.060, securing the future construction of any remaining private or public improvements to be installed;
d. Unless otherwise provided in this chapter, copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans. The subdivider must file copies of final plans, profiles, grades, and specifications for improvements, including a complete grading and drainage plan, with the certification of a professional engineer that all required improvements which have been installed are in conformance with the attached plans, with the city engineering division, of the department of public works and the city parks department. A statement must be included on the conditions of approval sheet stating where the plans can be obtained;
e. If a street, alley, avenue, road, or highway created by the plat will intersect with a state or federal right-of-way, a copy of the access or encroachment permit;
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f. A title report or certificate of a title abstractor subdivision guarantee for any off-site land intended to satisfy park dedication requirements. The subdivision guarantee must be dated no earlier than 30 calendar days prior to submittal.;
g. Any deeds and real estate transfer certificate, or other documents for transfer of land and/or improvements to the city or the property owners' association or other entity;
h. Any deeds or documents for transfer of water rights; including but not limited to all required state department of natural resources and conservation documentation, e.g. ownership update form, permit, groundwater certificate and/or change authorization; and
i. Any other documents satisfying subdivision application approval required by the governing body to be filed or recorded.
9. For non-public improvements, the developer must provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements, including, but not limited to, landscaping, ADA accessibility requirements, private infrastructure, and other required elements were installed in accordance with the approved plans and specifications, or plat as applicable, unless a waiver of certification in whole or part is explicitly approved by the DRC.
8. The developer must submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed. This narrative must be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal.
Section 10
That Division 38.220 Part 2 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.300. General.
When required, the supplementary documents described in this division, must be submitted in draft form with the preliminary plat or plan, and signed and notarized with the final plat or plan. The proper notary block must be used.
Sec. 38.220.310. Property owners' association.
A. The City must approve the governing documents or amendments to the governing documents of a subdivision or other development if as part of the approval the city required the governing documents to include provisions that directly and materially address a
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condition of approval or other adopted standards related to the development including but not limited to 38.270.090.
BA. When ApplicableGeneral. If the review authority determines a common area or open space, facility, or any other infrastructure is to be created or constructed as part of the development and such common area or open space, facility, or infrastructure is required to be either owned by or maintained by the property owners' association the developer must provide supplemental documents, as applicable, that (i) transfer ownership of common area, facility, or infrastructure to the property owners' association; (ii) provide for the perpetual maintenance of common area, facility, or infrastructure by the property owners' association; and (iii) identify if access to the common area open space or facility is available to the public or is restricted to the members of the property owners' association. Property owners' association bylaws or the declaration of covenants, conditions and restrictions must be prepared and recorded with the final plat or plan.
CB. Bylaws or covenants, conditions and restrictions contents. The items listed below are required to be included in the property owners' association bylaws or declaration of covenants, conditions and restrictions and must be clearly identified within the documents. The covenants must at a minimum, provide:
1. The property owners' association will be formed before any properties are sold.
2. Membership is automatic and mandatory for each property or unit buyer and any subsequent buyer.
3. Means of enforcing the covenants, and of receiving and processing complaints.
4. Common area and facilities must be perpetually reserved.
5. The association is responsible for liability insurance, any applicable tax assessments and the maintenance of any common area or facilities.
6. Property or unit owners must pay a pro rata share of the cost of any common expenses, with any assessment charged by the association becoming a lien where necessary on individual parcels.
7. The association may adjust the assessment to meet changed needs.
8. The conditions and timing of the transfer of ownership and control of common areas and facilities from the declarant to the association.
9. The permission of the city commission is required before the association can be dissolved or the boundaries altered.
10. Regular maintenance program for items included in section 38.270.090.A and any other common area and facilities and that the association is responsible for the maintenance program.
DC. If the property owners' association fails to install or maintain improvements according to approved plans, the city may, at its option, complete construction of improvements and/or
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maintain improvements in compliance with section 38.220.320200 and division 38.270 of this chapter. The city's representative, contractors and engineers must have the right to enter upon the property and perform such work, and the property owners' association must permit and secure any additional permission required to enable them to do so. The city will bill the property owners' association for any costs associated with the installation or maintenance of improvements.
D. For a multiphase project, the property owners' association must be created for the entire project with the first phase.
E. To ensure continued maintenance of common areas and facilities, and on-going fulfillment of all obligations no property may be removed from the property owners' association without prior approval by the city commission.
Sec. 38.220.320. Covenants.
A. The city may require covenants to be recorded with the final plat or condominium when it is determined they are necessary for the protection of the public health, safety and general welfare and compliance with conditions of approval or compliance with standards including but not limited to 38.270.090. Review of covenants must comply with section 38.240.150.A.3. All covenants must be considered to run with the land. If the covenants are not marked or noted on the final subdivision plat or other final approval document, they must be contained in a separate instrument which must be recorded with the final plat or prior to final approval of other applications. The covenants may be required to include, but are not limited to, the following provisions:
1. That all county declared noxious weeds will be controlled as required in MCA Title 7, Chapter 22, Part 21.
2. A section addressing agricultural uses of neighboring properties in the following form:
"Lot owners and residents of the subdivision are informed that adjacent uses may be agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in dust, animal odors and noise, smoke, flies, and machinery noise. Standard agricultural practices feature the use of heavy equipment, chemical sprays and the use of machinery early in the morning and sometimes late into the evening."
3. That all fences bordering agricultural lands must be maintained by the landowners in accordance with MCA Title 70 Chapter 16 Part 2, Title 81 Chapter 4 Part 1, or other relevant state law.
4. That any covenant which is required as a condition of the preliminary plat approval or other development and required by the city commission may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in the covenants, and the city commission.
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5. Common area and facility maintenance plan. The developer must submit a legal instrument setting forth a plan consistent with 38.270.090 providing for the permanent care and maintenance of common areas and facilities. The same must be submitted to the city attorney and must not be accepted by the city until approved as to legal form and effect. Common areas and facilities must be deeded to a property owners' association and, the applicant must record the proposed documents governing the association at the time of final plat filing. Creation of a special maintenance district satisfies this requirement.
6. Common area and facility maintenance guarantee and process. In the event the organization or any successor organization established to own and maintain common areas and facilities, must at any time fail to maintain the common areas or facilities in reasonable order and condition in accordance with the approved plan, the city may cause written notice to be served upon such organization or upon the owners of property in the development. The written notice must set forth the manner in which the common areas or facilities have failed to be maintained in reasonable condition. In addition, the notice must include the demand that the deficiencies noted be cured within 30 days thereafter and must state the date and place of a public meeting to be held within 14 days of the notice. At the time of public meeting, the city commission may modify the terms of the original notice as to deficiencies and may extend the time within which the same may be cured. If the deficiencies set forth in the original notice or modifications are not cured within the time set, the city may enter upon such common facilities and maintain the same for a period of one year, in order to preserve the taxable values of properties within the development and to prevent the common facilities from becoming a public nuisance. Such entry and maintenance must not vest in the public any right to use the common facilities not dedicated to public use. Before the one year period expires, the commission must, upon its own initiative or upon written request of the organization theretofore responsible for maintenance, call a public meeting and give notice of such meeting to the organization responsible for maintenance or the property owners' of the development. At the meeting, the organization responsible for maintenance and/or the residents of the development may show cause why maintenance by the city should not be continued for a succeeding year. If the city commission determines that it is not necessary for the city to continue such maintenance, the city must cease such maintenance at the time established by the city commission. Otherwise the city must continue maintenance for the next succeeding year subject to a similar meeting and determination at the end of each year thereafter.
a. The cost of maintenance by the city must be a lien against the common facilities of the development and the private properties within the development. The city commission must have the right to make assessments against properties in the development on the same basis that the organization responsible for maintenance of the facilities could make such assessments. Any unpaid assessment must be a lien against the property responsible for the same, enforceable the same as a
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mortgage against such property. The city may further foreclose its lien on the common facility by certifying the same to the county treasurer for collection as in the case of collection of general property taxes.
b. Should the property owners' association request that the city assume permanent responsibility for maintenance of facilities, all facilities must be brought to city standards prior to the city assuming responsibility. The assumption of responsibility must be by action of the city commission and all costs to bring facilities to city standards must be the responsibility of the property owners' association. The city may create special financing mechanisms so that those properties within the area affected by the property owners' association continue to bear the costs of maintenance.
c. The city must assume permanent responsibility for maintenance of public areas and facilities when a dedicated funding mechanism is adopted.
7. Guarantee for open space preservation. Open space shown on the approved final plan or in the approved plat application must not be used for the construction of any structures not shown on the final plan.
8. Covenants may not contain provisions which inhibit compliance with the requirements of division 38.380, for those developments subject to division 38.380. Some examples are: privately required minimum home or lot sizes which cannot be met.
89. Covenants and condominium declaration documents must require condominiums to be assigned street addresses in compliance with chapter 10, article 7 BMC. Addressing must not use X or other generic statements. Draft documents submitted for review prior to final approval must include correct addresses.
910. Stormwater facilities maintenance as required by chapter 40 article 4 BMC.
Section 11
That Section 38.220.420 of the Bozeman Municipal Code be amended as follows:
Sec. 38.220.420. Notice requirements for application processing.
A. The following minimum standards for timing, location of noticing area and type of notice must be provided.
1. Noticing provisions are cumulative with the maximum combination of noticing requirements being provided. When more than one newspaper notice is required, only one of the required publication dates must fall within the minimum and maximum days required. Newspaper publications for public hearings follow the requirements of MCA 7-1-4127 in addition to the requirements of Table 38.220.420.
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2. Distance in Table 38.220.420 is the distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership.
3. Notice must be provided not less than 15 or more than 45 days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter.
4. Mail by first class or certified mail is to all landowners within 200 feet.
5. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required.
6. The community development director will establish procedures for mailing notice.
7. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director.
B. If for some reason a required property owner fails to receive mail notification of a scheduled public hearing or other public comment opportunity, or if one or more of the required posted signs in the area or on the site for which the public hearing or other public comment opportunity is being held is inadvertently moved through no fault of the city, this in no way invalidates the legal notice requirements of the scheduled public hearing or other public comment opportunity.
C. Notice may also be provided to property owners' in any additional area that may be substantially impacted by an application the proposed change or use as determined by the community development director. The community development director may use other means in addition to posting, mailing, or publication to provide notice.
D. Notice is not required for final plans and final plats.
D. 1. For all developments in Table 38.220.040 which require mailed notice, the applicant must provide a list of names and addresses of all property owners, including names and addresses of owners of individual condominiums, wholly or partially within 200 feet of the site. The list must be drawn from the most current known property owners of record as shown in the records of the county clerk and recorder's office. Where certified mail is required separate mailing labels may also be required.
2. The community development director will establish procedures for mailing notice.
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3. The applicant is responsible for mailing notice. The city will provide the notice to the applicant for duplication not less than four days prior to the notice period. The notice must be distributed such that notices are submitted to the United States Postal Service at least two days before the beginning of the notice period. The return address on the envelopes must be the mailing address established by the community development director.
Table 38.220.420 Minimum standards for timing, location of noticing area and type of notice.
Application Minimum
Days12
Maximum
Days12
Distance1 Notice Type
Text amendment 15 45 NA Newspaper
once
Zone Map Amendment2 -
rezoning or with annexation
15 45 200 Newspaper
once, post
on-site, mail
1st class
Zone Map AAmendment2 -
Resulting from ordinance
changes
15 45 None Newspaper
once
ZMA2 - Annexation w/
initial zoning
15 45 None Newspaper
once, post
on-site, mail
1st class
Variance -– Floodplain and,
zoning, and subdivision
15 45 200 Newspaper
once (zoning
2 times),
post on-site,
mail 1st
class
Noticing for 76-2-402, MCA
claims
15 45 None Newspaper 2
times, post
on-site
Deviation 15 45 200 Newspaper 2
times, post
on-site, mail
1st class
Appeals of Administrative
Project Decisions3
15 45 2003 Newspaper 2
times, post
Commented [CS13]: Duplicative to ZMA in general.
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on-site, mail
1st class
Appeals of Administrative
Interpretations
None Newspaper
Sketch plan/reuse/change in
use/further development
None None None None
Sketch plans for adding
dwellings in the
neighborhood conservation
overlay district, demolition
of historic structures as
defined in article 7 of this
chapter, or modification of
wetlands. Sketch plan4
15 45 None Post on-site
Informal/concept plan None None None None
Preliminary site plan and
master site plan
15 45 200 Post on-site,
mail 1st
class
Preliminary Planned Unit
Development5
15 45 200 Newspaper 2
times, post
on-site, mail
1st class
Preliminary Conditional Use
Permit6 / Special Use
Permit13
15 45 200 Newspaper 2
times, post
on-site, mail
1st class
Floodplain permit 15 45 200 Newspaper,
mail 1st
class
Certificate Of
Appropriateness7
None None None None
Final site plan None None None None
Final PUD plan None None None None
Final CUP plan None None None None
Subdivision exemption None None None None
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Subdivision subject to 76-3-
616 including subdivision
variances
200 Post on-site,
mail 1st
class
Subdivision subject to
[SB161] including
subdivision variances
200 Newspaper ,
post on-site,
certified
mail to
adjacent
owners,
mail 1st
class all
others
1st minor subdivision
without variance -
preliminary plat/ Extensions
of subdivision approvals
beyond two years
15 45 200 Mail 1st
class
1st minor subdivision with
variance/2nd minor/major
subdivision/expedited
subdivision - Preliminary
plat
15 (Planning
Board)
45(Commission) 200 Newspaper8 ,
post on-site,
mail 1st
class9 ,
certified
mail10
Final plat None None None None
Notice of violation per
38.200.16011
15 45 None Post on-site,
cCertified
mail to
landowner
Notes:
1. The distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership.
2. Zone map amendment, division 38.260 of this chapter.
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3. Posting and mailing only applies to appeals taken from actions to approve, approve with conditions or deny a development proposal and not to appeals of administrative interpretations.
4. Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of historic structures as defined in article 7 of this chapter, or modification of wetlands.
5. Planned unit development, division 38.430 of this chapter.
6. Conditional use permit, division 38.230 of this chapter.
7. Certificate of appropriateness, division 38.340 of this chapter.
8. When newspaper notice is required the notice must be published in a newspaper of general circulation. reserved
9. Mail by first class to all landowners within 200 feet except those subject to certified mail. When a condominium includes land within the 200 foot distance all owners in the condominium are included in the noticing, not only those units within 200 feet.
10. Certified mail must be sent to recorded purchasers under contract for deed in addition to owners of physically contiguous property and the subdivider. reserved
11. Notices of violation subject to section 38.200.160.
12. Days prior to the close of the public comment period or public hearing unless otherwise specified in this chapter.
13. Special use permit, section 38.230.120 of this chapter.
Section 12
That Division 38.240 Part 1 of the Bozeman Municipal Code be amended as follows:
DIVISION 38.240. SUBDIVISION PROCEDURES
Part 1. Subdivision and Platting Administrative Procedures
Sec. 38.240.010. Transfers of title.
A. Unless the plat is located in an area where the state or the city does not have jurisdiction, no transfer of title may occur except as allowed in MCA 76-3-301, 76-3-302, and 76-3-303. every final subdivision plat must be filed for record with the county clerk and recorder before title to the subdivided land can be sold or transferred in any manner. After a preliminary subdivision plat has been approved or conditionally approved, the developer
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may enter into contracts to sell lots in the proposed subdivision if all of the following conditions are met:
1. Under the terms of the contracts, the purchasers of lots in the proposed subdivision must make any payments to an escrow agent which must be a bank or savings and loan association chartered to do business in the state;
2. Under the terms of the contracts and the escrow agreement, the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the developer until the final plat of the subdivision is filed and of record with the county clerk and recorder;
3. The contracts and the escrow agreement provide that if the final plat of the proposed subdivision is not filed with the county clerk and recorder within two years of the preliminary plat approval, the escrow agent must immediately refund to each purchaser any payment made under the contract;
4. The county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be divided are delinquent; and
5. The contracts must contain the following language conspicuously set out therein: "The real property which is the subject hereof has not been finally platted, and until a final plat identifying the property has been filed with the county clerk and recorder, title to the property cannot be transferred in any manner."
B. Unless the plat is located in an area where the state or the city does not have jurisdiction, the county clerk and recorder may not record any instrument that purports to transfer title to a parcel or tract of land that is required to be surveyed by the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) unless the required certificate of survey or subdivision plat has been filed with the county clerk and recorder and the instrument of transfer describes the parcel or tract by reference to the filed certificate or plat. This provision does not apply if the parcel or tract to be transferred was created before July 1, 1973, and the instrument of transfer for the parcel or tract includes a reference to a previously recorded instrument of transfer or is accompanied by documents that, if recorded, would otherwise satisfy the requirements of this subsection B. The reference or document must demonstrate that the parcel or tract existed before July 1, 1973. However, these references or documents do not constitute a legal description of the property and may not be substituted for a legal description of the property.
Sec. 38.240.020. Effect of recording complying plat.
The recording of any plat made in compliance with the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) has the effects established in MCA 76-3-304. serves to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat, properly certified by the county clerk and recorder as being a true copy thereof, must be regarded as incorporated into the instrument of conveyance and must be received in evidence in all courts of this state.
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Sec. 38.240.030. Correction of errors, amendments or vacation of recorded final plats.
A. Correction of errors. Correction of errors by private parties that, in the opinion of the city, will not materially alter the plat may be made by the submission of a corrected final plat for the city's approval per 38.240.160. The plat may be filed under the procedures for first minor subdivision plats. The plat must be entitled "amended plat of the (name of subdivision) subdivision," and the reason for the correction must be stated on the face of the plat.
B. Material alterations. Amendments that materially alter the final plat, or any portion thereof, must be made by the filing of an amended plat showing all alterations. The amended plat must be approved by the city under the major or minor subdivision review procedure as if it were a new application, as is appropriate. Prior to such approval, the amended plat must be reviewed by the community development department. The city may not approve an amendment which will place the plat in nonconformance with any applicable the standards contained herein unless a public hearing is held on the plat and a written variance from the standards approved issued pursuant to the procedures contained herein for such variances is granted. The plat must be entitled "amended plat of (the name) subdivision," and the reason for the amendment must be stated on the face of the plat.
C. Vacating recorded plats. Any plat prepared and recorded as provided by this chapter may be vacated, in whole or in part, as provided by MCA 76-3-305. by MCA 7-5-2501, 7-5-2502, 7-14-2616(1) and (2), 7-14-2617, 7-14-4114(1) and (2), and 7-14-4115. Upon vacation, the city, or the district court, as provided in MCA 7-5-2502, must determine to which properties the title to the streets and alleys of the vacated portions must revert. The city, or the district court, as provided in MCA 7-5-2502, must take into consideration the previous platting; the manner in which the right-of-way was originally dedicated, granted or conveyed; the reasons stated in the petition requesting the vacation; the parties requesting the vacation; and any agreements between the adjacent property owners' regarding the use of the vacated area. The title to the streets and alleys of the vacated portions may revert to one or more of the owners of the properties within the platted area adjacent to the vacated portions.
1. Utility easements. When any poleline, pipeline or any other public or private facility is located in a vacated street or alley at the time of the reversion of the title to the vacated street or alley, the owner of the public or private utility facility has an easement over the vacated land to continue the operation and maintenance of the public or private utility facility.
Sec. 38.240.040. Correction of recorded plat by governing body.
When a recorded plat does not definitely show the location or size of lots or blocks, or the location or width of any street or alley, the city may at its own expense cause a new and correct
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survey and plat to be made and recorded in the office of the county clerk and recorder. The corrected plat must, to the extent possible, follow the plan of the original survey and plat. The surveyor making the resurvey must endorse the corrected plat referring to the original plat, and noting the defect existing therein and the corrections made.Under the circumstances set in MCA 76-3-614 the City Commission may require correction of a recorded plat.
Sec. 38.240.050. Disposition of water rights.
A. When a subdivision creates parcels with lot sizes averaging less than five acres, the developer must address disposition of water rights as required in MCA 76-3-504.:
1. Reserve all or a portion of the appropriation water rights owned by the owner of the land to be subdivided and transfer the water rights to a single entity for use by the landowners within the subdivision who have a legal right to the water and reserve and sever any remaining surface water rights from the land;
2. If the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner's water use agreement administered through a single entity that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or
3. Reserve and sever all surface water rights from the land proposed for subdivision.
Section 13
That Division 38.240 Part 2 of the Bozeman Municipal Code be amended as follows:
DIVISION 38.240. SUBDIVISION PROCEDURES
Part 2. Review Procedures for Subdivisions
Sec. 38.240.100. General review procedure.
Every plat of subdivision must be reviewed, approved by the City Commission and filed for record with the county clerk and recorder in accordance with the procedures contained herein before title to the subdivided land can be sold or transferred in any manner. The applicant must identify the review procedure they intend to use as part of the initial application for preliminary plat. When determining the number of lots in a subdivision all created parcels including park and utility lots count towards the total number of lots. Subdivisions containing six or more lots are considered major subdivisions. A subdivision containing five or fewer lots, in which proper access to all lots is provided and in which no land is to be dedicated to public use for parks and playgrounds, is a minor subdivision.
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Subdivision Type Pre-application Review Required
Element and Sufficiency Review Required
Preliminary Plat Review Period After Sufficiency
Public Hearing Held By Review Authority
Expedited Subdivision per [SB161]
All Type Yes Yes 35 working days City Commission City Commission
Subdivisions Subject to 76-3-616
1st Minor Yes Yes 35 working days None City Commission
2nd or Subsequent Minor
Yes Yes 60 working days None City Commission
Major – 6-50 lots Yes Yes 60 working days None City Commission
Major >50 lots Yes Yes 80 working days None City Commission
Phased Development Per 76-3-617 MCA
Any Type Yes Yes 30 working days City Commission City Commission
Sec. 38.240.110. Presubmittal meeting and pPre-application plan review.
A. The purpose of a pre-application plan review is to discuss this chapter and these other applicable standards, to familiarize the developer with the standards, goals and objectives of applicable plans, regulations and ordinances, and to discuss the proposed subdivision as it relates to these matters.
1. Minor All subdivisions. Prior to the submittal of a subdivision application for a minor subdivision, the developer must submit an application for subdivision pre-application review.
2. Major subdivisions. Prior to the submittal of a subdivision application for a major subdivision, the developer must submit an application for subdivision pre-application review. The developer is encouraged to have a presubmittal meeting with the community development department prior to submitting a subdivision pre-application.
23. Pre-application plan review. For subdivision pre-application review, the developer must submit a complete application for pre-application plan review, the appropriate review fee, and copies of all required pre-application information as set forth in section 38.220.030.
Commented [CS14]: Specific requirement from 76-3-617
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a. Community development department City review. The community development department coordinates the review within the City and with outside agencies. must review the pre-application plan and advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter.
(1) Agency review. The community development department will distribute the pre-application information to appropriate county and city departments and state and federal agencies for review and written comment. All written comments received from various agencies, along with the community development department's comments regarding whether the plans and data meet the standards, goals and objectives of applicable plans, ordinances, and this chapter, and for informational purposes identification of local regulations, state laws, and growth policy provisions that may apply to the subdivision process, will be forwarded to the applicant to aid in the preparation of the subdivision application. The community development department must provide a list of the public utilities, agencies of government, and other parties who may be contacted and their timeframes for comment on the subdivision application. The comments collected by the community development department must be provided in person or by letter to the subdivider or their agent within 30 working days of a complete application being received by the city. The 30 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 30 working day review period.
(2). The applicant may request a waiver from information required to be submitted with a preliminary plat. In order to be granted a waiver the applicant must include with the submission of the subdivision pre-application a written statement describing the requested waiver and the reasons upon which the request is based. All waivers must be initially identified with the pre-application stage of review. The DRC is responsible for granting waivers, and the community development department staff must notify the developer in writing of any waivers granted from section 38.220.060 after the pre-application review. Information not waived at the time of pre-application must be provided with the preliminary plat application.
(32) Time for review. The community development department must review the pre-application plan and within 30 working days advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chapter. Every effort must be made by the community development department to obtain department and agency comment within this time period.
b. Optional planning board review. If the developer so wishes, the developer may request in writing that the planning board review pre-application plans. The letter
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of request and additional copies of the pre-application materials are required for this optional review.
(1) The request must be received at least 320 working days prior to the planning board meeting at which it is to be considered. The application will be submitted to the planning board at their next available meeting. A copy of the approved minutes of the planning board meeting will be forwarded to the developer. Comments are advisory and are not binding or limiting on the City’s review of any subsequent subdivision application.
c. Time for follow-up submittal. A complete subdivision preliminary plat application must be submitted to the community development department within one calendar year of the date the planning office dates, signs and places the letter in the outgoing mail or sends the letter via electronically mail.
d. The property owner will not receive No formal written notification on the acceptability or adequacy of a subdivision pre-application plan submittal is provided. Written comments as to applicability of standards, requested waivers, required corrections, and procedures will be provided at the conclusion of the review. Written comments may be provided electronically.
Sec. 38.240.120. Concurrent Montana Subdivision and Platting Act and Sanitation and
Subdivision Act review.
For Sanitation and Subdivision Act review, the developer has the option of submitting a state department of environmental quality (DEQ)/local government joint application form in the place of a preliminary plat application form, and to request concurrent subdivision review by the state department of environmental quality and the city, pursuant to MCA 76-4-129. Subdivisions granted the exemption from sanitation review authorized in MCA 76-4-127 do not need to use this provision.
Sec. 38.240.130. Preliminary plat – All Subdivisions Agency Review.
A. After the requirement for a pre-application review has been satisfied, the developer may submit a subdivision application within one year of the date of the city's written comments as required by section 38.240.110.A.3.a(2). Subdivision applications must be submitted, along with the appropriate review fee and all required subdivision application information as set forth in division 38.220 of this chapter to the community development department and must conform to the requirements of this chapter. The preliminary plat must be prepared by a surveyor licensed to practice in the state.
1. Acceptability and adequacy Element and sufficiency review of application. The City shall complete the review for required elements and sufficiency as required in MCA
Commented [CS15]: Divided review process into more sections so easier to find major steps
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76-3-604. The working days specified in 76-3-604 are met if the written communication is dated and placed in the outgoing US mail, or sent electronically, within the required time. The time limits in subsections 1.a and b of this section apply to each successive submittal of the application until a determination is made that the application contains the required materials and is adequate for review and the subdivider or their agent is notified.
a. The community development department must review a subdivision application within five working days of receipt of the application and applicable fee. A subdivision application is considered to be received on the date of delivery to the reviewing agency if it is accompanied by the applicable review fee. An application is acceptable only if it contains all of the information required by this chapter. If the application is unacceptable, the application, and a written explanation of why the application is unacceptable will be returned to the subdivider. If the application is acceptable the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding acceptability. The five working day review period is met if the letter is dated, signed and placed in the outgoing mail within the five working day review period. If the applicant chooses to withdraw the application, the applicant may request a refund if procedures for such have been created in the administrative manual adopted by the director of community development. Subsequent resubmittal must require payment of a review fee as if it were a new application.
b. After the application is deemed acceptable it must be reviewed for adequacy. The review for adequacy must be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period begins on the next working day after the date that the community development department determines the application is acceptable and sends the required notice to the subdivider; and must be completed within not more than 15 working days. The 15 working day review period is met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the subdivider. If the application is adequate the subdivider must be so notified. The property owner may designate in writing another party to receive notifications regarding adequacy.
(1) The City must notify the applicant if required information is missing from the application. In the event the missing information is not received by the city and the applicant has not provided an alternate schedule for timely submittal of the required information within 15 30 working days of notification to the subdivider of inadequacy, the City may declare the application unreviewable and terminate the review. all application materials except the city's file record copy must be returned to the subdivider or their representative. Subsequent resubmittal will require payment of a review fee as if it were a new application.
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(12) A determination that an application is adequate does not restrict the city from requesting additional information during the subdivision review process. A determination of adequacy establishes the applicable review criteria as specified in section 38.200.080.A.
c. At the time of the pre-application review, Tthe DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials must be provided before review is completed.
2. Review by affected agencies. After an application is deemed acceptable, the community development department may submit copiesprovide the contents of the preliminary plat and supplementary information to relevant public utilities and public agencies for review and comment, and for major subdivisions to the planning board for its advice pertaining to the approval or denial of the subdivision application. Review by public agencies or utilities must not delay the city commission's consideration of the subdivision application beyond the statutorily specified review period. If the community development department must request review by a public utility, agency of government, and other parties regarding the subdivision application that was not identified during the pre-application review the community development department must notify the subdivider.
38.240.140 Subdivision Notice and Public Comment
A. All subdivisions require notice and opportunity for public comment. Not all subdivisions require a public hearing. Notice of subdivision is provided as required in 38.220 Part 3.
a1. Public testimony. All written public comment received at or prior to a public hearing or during a public comment period must be incorporated into the written record of the review. Minutes or a recording must be taken of verbal comment received during any public hearing or public meeting.
23. Planning board review. At a regularly noticed public meetinghearing, the planning board must reviews all major subdivision applications as identified in 38.240.100, together with required supplementary plans and information, and determines whether the plat is in compliance with the city's growth policy. The planning board must hold a public hearing on all major subdivisions. Pursuant to MCA 76-1-107, the planning board has delegated its review of all minor subdivisions from a tract of record to the community development director.
a. Public testimony. All written public comment received at or prior to a public hearing must be incorporated into the written record of the review. Minutes must be taken of verbal comment received during the public hearing or public meeting
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before the planning board and must be incorporated into the written record of the review. Copies of the minutes and written comments must be included in any recommendation made to the city commission by the planning board.
b. Planning board recommendation. Within ten working days of their review, the planning board must submit in writing to the city commission its advice regarding compliance with the city's growth policy, and a recommendation for approval, conditional approval or denial of the subdivision application.
3. If an applicant proposes a phased subdivision per 76-3-617 MCA additional public notice and hearing consistent with 76-3-617 MCA must be conducted.
4. Community development director review. The community development director must review all minor subdivision applications, together with required supplementary plans and information, and determine whether the plat is in compliance with the city's growth policy. The community development director must make a written recommendation including a summary of the agency review and analysis of the review criteria established in this chapter and a recommendation for approval, conditional approval or denial of the subdivision application.
a. Public testimony. All written public comment received during the community development director's review must be incorporated into the written record of the review. Copies of written comments must be included in any recommendation made to the city commission by the community development director.
5.38.240.150 City commission review and action.
A. The city commission must review and take action on all proposed subdivisions.
1a. The following general review requirements for a public hearing or a public meeting, and for statutory review periods, per 38.240.100 must be met.:
2. The city commission must determine whether public comments or documents presented at or prior to the City Commission’s consideration of a plat constitutes new information as required in MCA 76-3-615.
(1) First minor subdivision created from a tract of record. The city commission must consider the subdivision application and the community development director's recommendation during a regular public meeting of the commission. The city commission, when legal and physical access is provided to all lots must approve, conditionally approve or deny the subdivision application of a first minor subdivision within 35 working days of the determination that the application is adequate, unless there is a written extension from the developer for a period not to exceed one year from the date the application was determined to be adequate. A minor subdivision must be reviewed as a second or subsequent minor subdivision if the tract has been previously subdivided or created by a subdivision; or the tract has
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descended from a tract of record which has previously been divided by exemption or other means into 6 or more tracts of record since July 1, 1973.
3. (a) Variance requests for minor subdivisions. If the developer of a minor subdivision is requesting a variance from any requirement of this chapter, the procedures of section 38.250.080 must be followed except that a public hearing must not be held.
(2) Subdivisions eligible for summary review. The city commission must consider the application and the community development director's recommendation during a regular public meeting of the commission. The city commission must approve, conditionally approve or deny a proposed subdivision that is eligible for summary review within 35 working days of determination that the application is adequate, unless there is a written extension from the developer. TheA written extension to the required review period may not exceed one year. Minor subdivisions are eligible for summary review if the plat has been approved by the state department of environmental quality whenever approval is required by MCA 76-4-101 et seq.
(3) Second or subsequent minor subdivision created from a tract of record. For the second or subsequent minor subdivision created from a tract of record, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application of a second or subsequent minor subdivision within 60 working days of the determination that the application is adequate for review, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate.
(4) Major subdivisions. For a major subdivision, the city commission must hold a public hearing on the subdivision application. The city commission must approve, conditionally approve or deny the subdivision application within 60 working days of the determination that the application is adequate for review if the subdivision has less than 50 lots, and within 80 working days of the determination that the application is adequate for review if the subdivision has 50 or more lots, unless there is a written extension from the developer, not to exceed one year from the date the application was determined to be adequate.
(5) Public testimony. All written public comment received at a public meeting or public hearing prior to a decision to approval, approve with conditions, or deny a subdivision application must be incorporated into the written record of the review. Minutes must be taken of verbal comments received during the
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public hearing before the city commission and must be incorporated into the written record of the review maintained by the city.
(6) New and credible information. The city commission must determine whether public comments or documents presented to the city commission at a public hearing regarding a subdivision application held pursuant to section 38.240.130.A.5 constitute:
(a) Information or analysis of information that was presented at a public hearing held pursuant to section 38.240.130.A.5 that the public has had a reasonable opportunity to examine and on which the public has had a reasonable opportunity to comment; or
(b) New information regarding a subdivision application that has never been submitted as evidence or considered by either the city commission, planning board or by city staff at a hearing during which the subdivision application was considered.
(c) If the city commission determines that the public comments or documents constitute new information not previously considered at a public hearing, the city commission may:
(i) Approve, conditionally approve, or deny the proposed subdivision without basing its decision on the new information if the governing body determines that the new information is either irrelevant or not credible; or
(ii) Schedule or direct its agent or agency to schedule a subsequent public hearing before the city commission for consideration of only the new information that may have an impact on the findings and conclusions that the governing body will rely upon in making its decision on the proposed subdivision.
(iii) In deciding whether the information is both new and credible the city commission must consider:
(A) Whether the topic of the information has previously been examined or available for examination at a public hearing on the subdivision application;
(B) Whether the information is verifiable, and if applicable developed by a person with professional competency in the subject matter;
(C) Whether the information is relevant to a topic within the jurisdiction of the city.
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(d) If a subsequent public hearing is held to consider new and credible information, the 60 working day review period required in section 38.240.130.A.5 is suspended and the new hearing must be noticed and held within 45 working days of the governing body's determination to schedule a new hearing. After the new hearing, the otherwise applicable time limit for review resumes at the governing body's next scheduled public meeting for which proper notice for the public hearing on the subdivision application can be provided. The governing body may not consider any information regarding the subdivision application that is presented after the hearing when making its decision to approve, conditionally approve, or deny the proposed subdivision.
B.b. Criteria for city commission action. The basis for the city commission's decision to approve, conditionally approve or deny the subdivision must be whether the subdivision application, public hearing if required, planning advisory boards and agencies advice and recommendation and additional information demonstrates that development of the subdivision complies with this chapter, the city's growth policy, the Montana Subdivision and Platting Act and other adopted state and local ordinances, including, but not limited to, applicable zoning requirements. The city commission may not deny approval of a subdivision based solely on the subdivision's impacts on educational services; or based solely on parcels within the subdivision having been designated as wildland-urban interface parcels by the most recent city-adopted hazard mitigation plan and its supporting documentation. When deciding to approve, conditionally approve or deny a subdivision application, the city commission must:
1.(1) Review the preliminary plat, together with required supplementary plans and information, to determine if it meets the requirements of this chapter, the development standards and policies of the city, the city's growth policy, the Montana Subdivision and Platting Act, and other adopted state laws and local ordinances, including but not limited to applicable zoning requirements.
2.(2) Consider written comments from appropriate public agencies, utilities or other members of the public.
3.(3) Consider the following:
(a.) Relevant evidence relating to the public health, safety and welfare;
(b.) Other regulations, code provisions or policies in effect in the area of the proposed subdivision;
(c.) The recommendation of the advisory bodies; and
(d.) Any relevant public commenttestimony.
Commented [CS16]: Existing State prohibition, don’t repeat here as it is unnecessary to restate
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e. Individual phases, existing conditions, and changed circumstances for any phase reviewed under 76-3-617 MCA.
4.(4) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the certification established in section 38.240.170100 the city commission may conditionally approve or deny a proposed subdivision as a result of the water and sanitation information provided pursuant to section 38.220.050.A.9. or public comment received pursuant to MCA 76-3-604 on the information provided pursuant to section 38.220.050. A conditional approval or denial must be based on existing subdivision, zoning, or other regulations that the city commission has the authority to enforce.
5.(5) The city may not approve a proposed subdivision if any of the features and improvements, including well isolation zones, of the subdivision encroach onto adjoining private property in a manner that is not otherwise provided for under Title 76, chapters 3 or 4, MCA., or if the well isolation zone of any proposed well to be drilled for the proposed subdivision encroaches onto adjoining private property unless the owner of the private property authorizes the encroachment. For the purposes of this section, "well isolation zone" has the meaning provided in 76-4-102, MCA.
c. City commission action. If the city commission denies or conditionally approves the subdivision application, it must forward one copy of the plat to the developer accompanied by a letter over the appropriate signature stating the reason for disapproval or enumerating the conditions that must be met to ensure approval of the final plat. This written statement must include:
(1) The reason for the denial or condition imposition;
(2) The evidence that justifies the denial or condition imposition; and
(3) Information regarding the appeal process for the denial or condition imposition.
dC. Mitigation. The city commission may require the developer to design the subdivision to reasonably minimize potentially significant adverse impacts identified through the review required by this chapter. The city commission must issue written findings to justify the reasonable mitigation required by this chapter. The city commission may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the plat. When requiring mitigation under this subsection, the city commission must consult with the developer and must give due weight and consideration to the expressed preference of the developer.
eD. Findings of fact. Within 30 working days of the final action to approve, deny, or approve with conditions a subdivision, the city commission must issue written
Commented [CS17]: Duplicates the following section D on Findings of Fact
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findings of fact as required in 76-3-620 that discuss and weigh the following applicable criteria, as applicable ( pursuant to MCA 76-3-608, 76-3-616, and [SB161 reference]): as well as compliance with other laws and regulations applicable to the subdivision.
1.(1) Criteria.
a.(a) Compliance with the survey requirements of the Montana Subdivision and Platting Act;
b.(b) Compliance with this chapter and the review process of these regulations;
c.(c) The provision of easements to and within the subdivision for the location and installation of any necessary utilities;
d.(d) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel; and
e.(e) For major subdivisions other than expedited or otherwise exempt subdivisions, the findings of fact must also address the effect on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat, and public health and safety.
(2) Required components. The written findings of fact must contain at a minimum:
(a) Information regarding the appeal process for the denial or imposition of conditions;
(b) The regulations and statutes used in reaching the decision to deny or impose conditions and explains how they apply to the decision;
(c) The facts and conclusions that the governing body relied upon in making its decision to deny or impose conditions. The documents, testimony, or other materials that form the basis of the decision and support the conclusions of the governing body may be incorporated into the written findings by reference.
(3) Federal or state governmental entity input. If a federal or state governmental entity submits a written or oral comment or an opinion regarding wildlife, wildlife habitat, or the natural environment relating to a subdivision application for the purpose of assisting a governing body's review, the comment or opinion may be included in the governing body's written statement under this section only if the comment or opinion provides scientific information or a published study that supports the comment or opinion. A governmental entity that is or has been involved in an effort to
Commented [CS18]: Already incorporated by earlier reference to 76-3-620.
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acquire or assist others in acquiring an interest in the real property identified in the subdivision application must disclose that the entity has been involved in that effort prior to submitting a comment, an opinion, or information as provided in this subsection.
hF. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070.
(1) The written request must be submitted to the community development department.
(2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions.
(3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting.
(a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter.
(4) The city commission may approve the requested change if it meets the criteria set forth in this chapter.
(5) The city commission must issue written findings of fact as required in this chapter.
38.240.160. Duration of Approval
Af. Initial subdivision application approval period. Upon approving or conditionally approving a subdivision application, the city commission must provide the developer with a dated and signed findings of fact and order. This initial approval must be in force for not more than:
1.(1) One calendar year for minor subdivisions;
2.(2) Two calendar years for single-phased major subdivisions; and
3.(3) Three calendar years for multi-phased major subdivisions after the date of the findings of fact and order.
4. At the end of thise period, the city may, at the written request of the developer, extend its approval for a mutually agreed-upon period of time.
5. Subdivisions reviewed under 76-3-617 MCA may not exceed a cumulative period for all phases to exceed 20 years.
Commented [CS19]: F and g as new shared section re approval duration
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Bg. Extensions of preliminary plat approval period. Any mutually agreed upon extension must be in writing and dated and signed by the subdivider or their authorized agent and by the city commission or their authorized agent. More than one extension may be requested for a particular subdivision. Each request is considered on its individual merits. An extension of the subdivision approval under this chapter does not extend other city or non-city agency approvals, e.g. for design of infrastructure extensions, necessary to complete the project. Review authority for extensions is established in division 38.220. When evaluating an extension request, the city must consider:
1.(1) Changes to the development regulations since the original approval and whether the subdivision as originally approved is substantially compliant with the new regulations;
2.(2) Progress to date in completing the subdivision as a whole and any phases, including maintenance of the remainder of the site in good condition;
3.(3) Phasing of the subdivision and the ability for existing development to operate without the delayed development;
4.(4) Dependence by other development on any public infrastructure or private improvements to be installed by the subdivision;
5.(5) Demonstrated ability of the subdivider to complete the subdivision;
6.(6) Whether mitigation for impacts of the subdivision identified during the preliminary plat review and findings of fact and order remain relevant, adequate, and applicable to the present circumstances of the subdivision and community.
h. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where it can be found that errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal are subject to the provisions of section 38.100.070.
(1) The written request must be submitted to the community development department.
(2) The written consent of all purchasers of land (via contract for deed, etc.) must be included with the written request to amend conditions.
(3) If it is an application for a major subdivision, the city commission must conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission must consider the request at a regularly scheduled meeting.
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(a) If a public hearing is held, public notice of the hearing must be given in accordance with this chapter.
(4) The city commission may approve the requested change if it meets the criteria set forth in this chapter.
(5) The city commission must issue written findings of fact as required in this chapter.
Sec. 38.240.170140. Notice of certification that water and waste services will be provided by
local government.
A. If the developer is proposing to request an exemption from the department of environmental quality (DEQ) for infrastructure plan and specification review, the subdivision application must include a written request from the developer's professional engineer, licensed in the state, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. The director of public works must, prior to final plat approval, send notice of certification to the DEQ per MCA 76-4-127.
1. The notice of certification must include the following:
a. The name and address of the applicant;
b. A copy of the preliminary plat included with the application for the proposed subdivision or a final plat where a preliminary plat is not necessary;
c. The number of proposed parcels in the subdivision;
d. A copy of any applicable zoning ordinances in effect;
e. How construction of the sewage disposal and water supply systems or extensions will be financed;
f. Certification that the subdivision is within a jurisdictional area that has adopted a growth policy pursuant to title 76, chapter 1, Montana Code Annotated (MCA 76-1-101 et seq.) and a copy of the growth policy, when applicable;
g. The relative location of the subdivision to the city;
h. Certification that adequate municipal facilities for the supply of water and disposal of sewage and solid waste are available or will be provided within the time provided in MCA 76-3-507;
i. If water supply, sewage disposal or solid waste facilities are not municipally owned, certification from the facility owners that adequate facilities are available; and
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j. Certification that the city commission has reviewed and approved plans to ensure adequate stormwater drainage.
Sec. 38.240.150180. Final plat application.
A. After the conditions of preliminary approval and the requirements for the installation of improvements have been satisfied, the developer must cause to be prepared a final plat. The final plat must conform to the uniform standards for final subdivision plats as set forth in 24.183.1107 ARM as may be amended and to the standards required by the county clerk and recorder. The applicant is responsible to verify that they are complying with the most recently adopted clerk and recorder standards. Plans and data must be prepared under the supervision of a registered surveyor, licensed in the state, as their licensing laws allow.
1. Final plat submittal. The final plat and all supplementary documents must be submitted to the community development department at least 30 working days prior to the expiration of subdivision application approval or any extension thereto. The submittal must include a final plat application form, the appropriate review fee, all information required by section 38.220.070 and a written explanation of how each of the conditions of subdivision application approval has been satisfied.
a. The final park plan, if one is associated with the plat, must be reviewed and approved, after a recommendation from the city recreation and parks advisory board, prior to approval of or simultaneously with the final plat. The installation of any park improvements to meet minimum development standards or conditions of approval must comply with division 38.270 of this chapter.
2. County treasurer certification. A final plat will not be accepted as complete until the county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent.
3. Review of abstract subdivision guarantee, deeds, and covenants.
a. With the final plat, the developer must submit to the community development department a certificate of a licensed title abstractorsubdivision guarantee showing the names of the owners of record of the land to be subdivided and of any off-site land used to satisfy parkland dedication requirements, and the names of lienholders or claimants of record against the land, and the written consent to the subdivision by the owners of the land, if other than the developer, and any lienholders or claimants of record against the land. The certificate of licensed title abstractor must be dated no earlier than 30 calendar days prior to submittal. If necessary, the subdivision guarantee certificate must be updated so that the subdivision guaranteecertificate is dated no earlier than 90 days prior to the city commission's action on the final plat.
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b. Covenants must be submitted to the community development department with the final plat application. At least 30 working days prior to submission of the final plat application to the community development department, the developer must submit a copy of the covenants to the city attorney's office.
c. If an improvements agreement will be required per section 38.270.060 then the proposed associated financial security must be provided for review and approval at least 30 working days prior to submission of the final plat application for review by the city attorney.
d. Transfer of ownership of public land, off-site land, private land, personal property, improvements and water rights; documents required.
(1) For the transfer of real property in satisfaction of required or offered dedications to the city, and required or offered donations or grants to the property owners' association (POA), the subdivider or owner of the property must submit with the application for final plat a warranty deed or other instrument acceptable to the city attorney transferring fee simple ownership to the city or the POA.
(2) For the transfer of personal property installed upon dedicated parkland or city-owned open space, or POA-owned parkland or open space, the subdivider must provide the city an instrument acceptable to the city attorney transferring all its rights, title and interest in such improvements including all applicable warranties to such improvements to the city or the POA.
(3) The subdivider or owner of the property must record the deed or instrument transferring ownership or interests at the time of recording of the final plat with the original of such deed or instrument returned to the city or POA as applicable.
(4) For the transfer of ownership interest in water, the subdivider or owner of the property must submit with the application for final plat a deed or other instrument acceptable to the city attorney transferring ownership to the city or POA, along with all required state department of natural resources and conservation documentation, certification and authorization.
d. Certificates.
(1) Public lands/improvements must be described in the certificate of dedication/consent, listed in the certificate of completion, and be completed or subject to an improvements agreement.
(2) Private lands/improvements must be described and addressed in the certificate of donation/grant and completion of private improvements, be completed or subject to an improvements agreement.
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4. Review by the community development department. The community development department will then review the final plat application to ascertain verify that all conditions and requirements for final approval have been met. If all conditions and requirements for final approval have been met, the community development department must forward a report to the city commission for their action.
5. Final plat approval. The review authority city commission must examine every final plat, and within 45 working days of the date of receipt of a complete final plat application to the community development department, must approve it if it conforms to the conditions of preliminary approval and the terms of this chapter. "Date of receipt" means the date of delivery of all fully executed required documents to the reviewing agency if accompanied by the applicable review fee. The city commission must examine every final plat at a regular meeting.
A final subdivision plat is not may not be approved by the city unless all certificates, with the exception of the director of public workscertificates to be signed by applicable city officers and the county clerk and recorder, have been complied with, signed and notarized and all subdivision regulations and conditions of preliminary plat approval have been met. A final subdivision plat may not be filed with the county clerk and recorder unless all certificates, with the exception of the county clerk and recorder, have been complied with, signed and notarized. This shall include the certification by the county treasurer that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. A final subdivision plat may not be approved by the review authority city commission or filed by the county clerk and recorder unless it complies with the uniform standards for final subdivision plats as established 24.183.1107, ARM as may be amended and as required by the Gallatin County Clerk and Recorder.
a. If the final plat is approved, the city officer director of public service shallmust so certify the approval in a printed certificate on the plat.
b. If the final plat is denied, the city commission shall cause a letter to be written to the developer stating the reasons therefore.
6. Filing. The developer must file the approved, signed final plat and all other required certificates and documents with the county clerk and recorder within 60 days of the date of final approval.
7
Sec. 38.240.190160. Changes to filed subdivision plats.
Changes to a filed subdivision plat must be filed with the county clerk and recorder as an amended plat. An amended plat may not be filed unless it meets the filing requirements for a final subdivision plat specified in these regulations.
Commented [CS20]: Duplicative language from earlier about intake on plats.
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Section 14
That Division 38.240 Part 3 of the Bozeman Municipal Code be amended as follows:
Part 3. Land DSubivisions Created by Rent or Lease and Buildings For Lease Or Rent
Sec. 38.240.200. General.
A. Land subdivisions created by rent or lease, rather than sale, refer to areas that provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles regardless of the size of the area or whether the spaces will be made available for rent by the general public for a fee. The land must be owned as one parcel under single ownership, which can include a number of persons owning the property in common. Subsequent action to sell interests in less than the entirety of the development may necessitate review under Parts 5 and 6 of the Montana Subdivision and Platting Act prior to any sale. Land subdivisions created by rent or lease are not subject to this division 38.240 or the Montana Subdivision and Platting Act if:
Rent or lease of buildings or portions of buildings otherwise subject to Title 76 Part 8, MCA are exempt from review under 76-8 MCA since the City has adopted the necessary zoning to apply the exemption authorized in 76-8-103, MCA.
B. Per 76-3-103(16) MCA, development for rent or lease for recreational camping vehicles or manufactured homes, rather than sale of parcels of land is also considered a subdivision and subject to review procedures for subdivision.
1. They are developed on property which has been subdivided in compliance with Parts 5 and 6 of the Montana Subdivision and Platting Act or which have a boundary documented by a certificate of survey recorded after July 1, 1973; and
2. They are reviewed as a site plan, conditional use permit, or planned unit development as described and authorized under this chapter; and
3. They comply with the adopted zoning regulations and other land development standards adopted by the city.
B. DPHHS license. If a land subdivision by rent or lease, that will provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles is also a "campground," "trailer court," "work camp," or "youth camp" as defined below, the city must not grant final approval until the developer obtains a license for the facility from the state department of public health and human services (DPHHS) under MCA tit. 50, ch. 52.
1. "Campground" means a parcel of land available to and principally used by the public for camping, where persons can camp, secure tents or cabins, or park trailers for camping and sleeping purposes.
2. "Trailer court" means a parcel of land upon which two or more spaces are available to the public and designated for occupancy by trailers, manufactured homes or mobile
Commented [CS21]: It appears this been entirely replaced with MCA 76-8 which has an exclusion for requiring subdivision review for rent or lease for areas with our kind of detailed zoning. Therefore, the entire Part is no longer required and can be removed except for an appropriate reference to state law..
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homes for use as residences. The term does not include a parcel composed of platted lots, if each lot:
a. Is filed with the county clerk and recorder;
b. Contains only one trailer space; and
c. Is served by a public water supply system and public sewage system that meet the requirements of rules for systems adopted pursuant to MCA tit. 75, ch. 6, pt. 1, and that are located within the boundaries of the City of Bozeman.
3. "Work camp" means a parcel of land on which housing is provided by a person for two or more families or individuals living separately, for the exclusive use of the employees of the person and the families, if any, of the employees. For purposes of this subsection, "housing" includes but is not limited to camping spaces; trailer parking spaces; manufactured, mobile, modular or permanent barracks or structures; and any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. Housing does not include shelter provided by an employer for persons who are employed to perform agricultural duties on a ranch or farm.
4. "Youth camp" means a parcel of land on which permanent buildings, tents or other structures are maintained as living quarters for ten or more people and that is used primarily for educational or recreational use by minors. The term includes any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities.
C. Surveying and filing requirements exemption. Land subdivisions created by rent or lease are exempt from the surveying and filing requirements of the Montana Subdivision and Platting Act.
D. Buildings for lease or rent. A building or buildings created for lease or rent on a single lot is not a subdivision of land but must be in conformance with applicable zoning regulations. For this section "building" means a structure or a unit of a structure with a roof supported by columns or walls for the permanent or temporary housing or enclosure of persons or property or for the operation of a business. Except as provided in MCA 76-3-103(15) the term includes a recreational camping vehicle, mobile home, or cell tower. The term does not include a condominium or townhome.
Sec. 38.240.210. Land subdivisions created by rent or lease—Procedure, submittal
requirements and review criteria.
A. Land subdivisions created by rent or lease must be submitted, reviewed and approved by the city before any portions of the development may be rented or leased. The developer must apply for site plan and subdivision review.
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B. Site plan review. All relevant procedures, submittal requirements and review criteria contained in division 38.230 of this chapter apply. The development must also comply with the requirements of division 38.310 of this chapter and sections 38.360.190 and 38.360.250.
C. Subdivision review. The subdivision review procedure and review criteria for land subdivisions created by rent or lease will depend upon the number of spaces within the proposed development. Proposed developments containing five or fewer spaces for rent or lease must be reviewed as minor subdivisions according to the provisions of article 2 of this chapter and proposed developments containing six or more spaces for rent or lease must be reviewed as major subdivisions according to the provisions of division 38.240 of this chapter.
1. Pre-application plan. The pre-application plan must be reviewed using the procedures contained in section 38.240.110. The submittal materials listed in section 38.220.030 must be provided.
2. Preliminary plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a preliminary plan in lieu of a preliminary plat, a completed application for minor subdivision or major subdivision as appropriate, and the materials listed in sections 38.220.050 and 38.220.060.
3. Final plan submittal and procedure. For land subdivisions created by rent or lease, the developer must submit a final plan in lieu of a final plat, a completed final plat application and the materials listed in section 38.220.070.
4. Supplementary materials. In addition to the submittal requirements of division 38.220 of this chapter, preliminary and final plans for land subdivisions created by rent or lease must show the following:
a. A layout of all spaces proposed for rent or lease;
b. Location of commonly owned areas and facilities; and
c. Parks and/or recreation areas.
5. Boundary lines. All preliminary and final plans may show approximate boundary, lot, right-of-way or other lines.
( Ord. No. 2059 , § 3, 1-26-2021)
Sec. 38.240.220. Land subdivisions created by rent or lease—Timing of improvements.
Before any portion of a land subdivision created by rent or lease can be rented or leased, all required improvements must be installed, inspected and found compliant with the approved plan, and where applicable accepted by the city.
Sec. 38.240.230. Land subdivisions created by rent or lease—Filing of final plan.
Once the final plan has been approved by the city, an original copy of the approved plan must be filed with the county clerk and recorder as a "miscellaneous" document and another
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copy of the approved plan must be retained by the engineering division of the department of public works.
Section 15
That Section 38.240.300 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.300. Divisions of land entirely exempt from the requirements of this chapter
pertaining to subdivisions and the state subdivision and platting act.
A. Unless the method of disposition is adopted for the purpose of evading this chapter or the Montana Subdivision and Platting Act (the "Act"), the requirements of this chapter pertaining to subdivisions and the Act may not apply to any division of land that:
1. Is created by order of any court of record in this state or by operation of law or that, in the absence of agreement between the parties to the sale, could be created by an order of any court in the state pursuant to the law of eminent domain (MCA 76-3-201(1)(a));
a. Before a court of record orders a division of land, the court must notify the governing body of the pending division and allow the governing body to present written comment on the division;
b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.32.030 and are not individual buildable lots;
c. Not more than four lots can be created by order of a court of record from an original tract or parcel.
2. Is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing purposes (MCA 76-3-201(1)(b));
a. This exemption applies:
i. To a division of land of any size;
ii. To a parcel that is created to provide security, however the remainder of the tract of land is subject to the provisions of the Montana Subdivision and Platting Act and division 38.240 of this chapter if applicable;
b. Lots created as described in this section that do not comply with the standards of chapter 38, BMC are not "nonconforming" lots subject to section 38.280.030 and are not individual buildable lots;
3. Creates an interest in oil, gas, minerals or water that is severed from the surface ownership of real property (MCA 76-3-201(1)(c));
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4. Creates cemetery lots (MCA 76-3-201(1)(d));
5. Is created by the reservation of a life estate (MCA 76-3-201(1)(e));
6. Is created by lease or rental for farming and agricultural purposes (MCA 76-3-201(1)(f));
7. Is created for rights-of-way or utility sites. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the Montana Subdivision and Platting Act and division 38.240 of this chapter (MCA 76-3-201(1)(h));
8. Is created by lease or rental of contiguous airport-related land owned by a city, county, the state, or a municipal or regional airport authority provided that the lease or rental is for onsite weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities (MCA 76-3-205(1));
9. Is state-owned land unless the division creates a second or subsequent parcel from a single tract for sale, rent or lease for residential purposes after July 1, 1974 (MCA 76-3-205(2)); and
10. Is created by deed, contract, lease or other conveyance executed prior to July 1, 1974 (MCA 76-3-206).
Section 16
That Section 38.240.410 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.410. Dedication or consent.
A. All plats of subdivisions must contain a certificate of dedication or certificate of consent signed by the subdivider. In the case of corporate ownership, the proper corporation officer must sign, a corporate notary form must be used, and the corporate seal must be affixed. The certificate of consent is used when there are no transfers of land interests to the public. The certificate must read as follows:
1. Certificate of dedication.
CERTIFICATE OF DEDICATION
(I), (We), the undersigned property owner(s), do hereby certify that (I) (We) have caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by the plat hereunto included the following described tract of land to wit:
Description
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(Exterior Boundary Description of Area Contained in Plat and Total Acreage)
The above-described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana; and the lands included in all streets, avenues, alleys, roads, highways, and parks, playgrounds, or public lands or other public improvements shown on said plat are hereby granted and donated to the City of Bozeman for the public use and enjoyment. Unless specifically listed herein, the lands included in all streets, avenues, alleys, roads, highways, and parks or public lands or other public improvements dedicated to the public are accepted for public use, but the city accepts no responsibility for maintaining the same. The owner(s) agree(s) that the city has no obligation to maintain the lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements, hereby dedicated to public use. The lands included in all streets, avenues, alleys, roads, highways, and parks, or public lands or other public improvements dedicated to the public for which the city accepts responsibility for maintenance include (list specific streets, avenues, alleys, roads highways, and parks or other public lands or other public improvements).
The undersigned hereby grants unto each and every person firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever.
DATED this _______ day of _______, _______.
(Acknowledged and notarized signatures of all record owners of platted property)
2. Certificate of consent.
CERTIFICATE OF CONSENT
(I), (We), the undersigned property owner(s), do hereby certify that (I), (We) caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by this plat hereunto included, the following described tract of land, to wit:
Description
(Exterior Boundary Description of Area Contained in Plat and Total Acreage)
The above described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana.
The undersigned hereby grants unto each and every person, firm of corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever.
DATED this _______ day of _______, _______.
(Acknowledged and notarized signatures of all record owners of platted property)
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Section 17
That Section 38.240.460 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.460. Acceptance of dedications Governing body.
When property or improvements are being transferred to the public this certificate is used. The city commission’s or their designated agent must certify approval of theacceptance for public use of improvements associated with the plat of subdivision. Said certificate must read as follows:
CERTIFICATE OF DIRECTOR OF PUBLIC WORKSACCEPTANCE OF DEDICATIONS
I, Director of Public Works, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law, approves it, and hereby accepts the dedication to the City of Bozeman for the public use of any and all lands shown on the plat as being dedicated to such use.
DATED this _______ day of _______, _______.
(Signature), Director of Public Works
Section 18
That Section 38.240.470 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.470. Exclusion from MDEQ review for sanitation.
The following certificate must be added to all subdivision plats to certify that adequate stormwater drainage and adequate municipal facilities will be provided.
CERTIFICATE OF EXCLUSION FROM MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY REVIEW
The (Name of Subdivision), Gallatin County, Montana, is within the City of Bozeman, Montana, a first-class municipality, and within the planning area of the Bozeman growth policy which was adopted pursuant to MCA 76-1-601 et seq., and can be provided with adequate stormwater drainage and adequate municipal facilities. Therefore, under the provisions of MCA 76-4-125, this subdivision is excluded from the requirement for Montana Department of Environmental Quality review.
DATED this _______ day of _______, _______.
(Signature), Director of Public Works
City of Bozeman, Montana
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Section 19
That Section 38.240.500 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.500. Certification of use of exemption claim.
A. The following certificates must be provided in a printed certificate on the amended plat or certificate of survey for allowed exemptions from review as subdivisions:
1. Certificate of governing body to authorize exemption from subdivision review.
CERTIFICATE OF GOVERNING BODY – USE OF EXEMPTION
I, (Director of Community Development), do hereby certify that the accompanying (Certificate of Survey or Amended Plat) has been duly reviewed, and has been found to conform to the requirements of the Subdivision and Platting Act (MCA 76-3-101 et seq.), and the Bozeman Municipal Code.
DATED this _______ day of _______, _______.
(Signature), Director of Community Development
2. Certificate of exemption. Reference to exclude the survey from state department of environmental quality review can also be added to this certificate, as appropriate.
LANDOWNER CERTIFICATE OF EXEMPTION
(I), (We) certify that the purpose of this survey is to (state exemption), and therefore this survey is exempt from review as a subdivision pursuant to MCA 76-3-207(1) (add appropriate subsection).
DATED this _______ day of _______, _______.
(Acknowledged and notarized signatures of all record owners of surveyed property)
Section 20
That Section 38.240.540 of the Bozeman Municipal Code be amended as follows:
Sec. 38.240.540. Certificate of Governing Body
A. The city commission’s designated agent must certify approval of all plats of subdivision. Said certificate must read as follows:
CERTIFICATE OF GOVERNING BODY APPROVING PLAT
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I, Director of Community Development, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law and approves it.
DATED this _______ day of ______________________, _______.
(Signature), Director of Community Development
Section 21
That Section 38.250.080 of the Bozeman Municipal Code be amended as follows:
Sec. 38.250.080. Subdivision variances.
A. Procedure. The subdivider must provide during the pre-application process, and include
with the submission of the preliminary plat, a written statement describing the requested
variance and the facts of hardship upon which the request is based. The relevant advisory
bodies must include their findings and conclusion regarding the requested variance in its
recommendation. The city review authority must then consider each variance at the public
hearing on during their review of the preliminary plat. A public hearing may not be held on
a variance in association with a first minor subdivision.
B. Review criteria. Per MCA 76-3-506, a variance to this chapter must be based on specific
variance criteria, and may not have the effect of nullifying the intent and purpose of this
chapter. The city must not approve subdivision variances unless it makes findings based
upon the evidence presented in each specific case that:
1. The granting of the variance will not be detrimental to the public health, safety, or
general welfare, or be injurious to other adjoining properties;
2. Because of the particular physical surroundings, shape or topographical conditions of
the specific property involved, an undue hardship to the owner would result if strict
interpretation of this chapter is enforced;
3. The variance will not cause a substantial increase in public costs; and
4. The variance will not, in any manner, place the subdivision in nonconformance with
any other provisions of this chapter or with the city's growth policy.
C. Variances from floodway provisions not authorized. The review authority may not, by
subdivision variance, permit subdivision for building purposes in areas located within the
floodway of a flood of 100-year frequency as defined in title 76, chapter 5, Montana Code
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Annotated (MCA 76-5-101 et seq.). Any variances related to floodways must meet the
standards of 38.250.070.C.4.a.
D. Conditions. In granting subdivision variances, the review authority may require such
conditions as will, in its judgment, secure the objectives of this chapter. Any approval under
this section must be subject to the terms of the conditions designated in connection therein.
Any conditions required must be related both in purpose and scope with the relief sought
through the variance.
E. Statement of facts. When any variance from this chapter is granted, the motion of approval
must contain a statement describing the variance and conditions upon which the issuance of
the variance is based.
F. Planned unit development. Where the standards and requirements of this chapter are
proposed to be modified through a planned unit development, the applicable process is a
deviation rather than a variance.
G. Limitations on approvals. For subdivision variances, the variance approval will be null
and void if the final plat is not filed within the time allowed for final approval by the city's
decision.
Section 22
That a new Section 38.360.280 of the Bozeman Municipal Code be created to read as follows:
Section 38.360.280 Agricultural water user facilities (ditches)
A. Purpose and intent. The purpose of this section is to recognize and protect property rights established through water rights issued by the state of montana and the associated rights of conveyance for agricultural water user facilities. Development of land has potential to negatively impact such rights and function of such facilities. The state has adopted requirements including but not limited to 70-17-112, 85-7-2211 and 85-7-2212, MCA to protect agricultural water user facilities.
B. Notice requirements concerning agricultural water user facility:
1. Where an agricultural water user facility is present on-site, or on an adjoining property within 100 feet of the exterior boundaries of the proposed development, the developer must:
a. provide written notice to the applicable water users and/or agricultural water user facility’s authorized representatives of the proposed development,
b. provide them with a copy of the proposed development layout,
c. provide a description of any anticipated adverse effects to the agricultural water user facility,
Commented [CS22]: Consistency with County’s adopted regs. Ditches regularly cross the boundaries so consistency of approach is particularly beneficial. Enables 76-3-616 release from subdivision public hearings by providing adequate work up front to address ditches
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d. provide a description of any mitigation proposed to remedy such adverse effects, and
e. provide 45 calendar days for the water users and/or agricultural water user facility’s authorized representatives to submit written comments.
2. Notice to the water users and/or agricultural water user facility’s authorized representatives must be as follows.
a. In the event the agricultural water user facility conveys water for an incorporated or otherwise organized group of water users such as a ditch or canal company, and the water users have officially elected or otherwise appointed a representative or group of representatives, written notice shall be to the agricultural water user facility’s authorized representatives.
b. In the event the agricultural water user facility conveys water for water users that have not organized or officially elected or otherwise appointed a representative, the developer shall give written notice to all water users.
c. In the event the agricultural water user facility conveys water in a combination of the scenarios described in i and ii above, the Subdivider shall give written notice to the agricultural water user facility’s authorized representatives, and any water users not represented by the agricultural water user facility’s authorized representatives.
d. The montana department of natural resources and conservation is the agency that maintains the official records for water rights.
3. The pre-application or concept plan submittal shall include the names and contact information for the water users and agricultural water user facility’s authorized representatives that were provided with written notice, and the date they were provided written notice.
4. If the water users and/or agricultural water user facility’s authorized representatives have provided the applicant with written comments, those comments shall be submitted with the pre-application or concept plan submittal.
5. If there are changes to the project between the pre-application plan or concept plan submittal and formal application stage that would result in additional impacts to the agricultural water user facility, the developer shall comply with the notice and documentation requirements described above to be submitted with the formal application.
6. If the subject of this subsection was fully addressed with a previous development review and a new application is fully in compliance with the earlier approval compliance with the notice provisions of this subsection is not required.
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Section 23
That Section 38.400.020 of the Bozeman Municipal Code be amended as follows:
Sec. 38.400.020. Street and road dedication.
A. General. All streets or alleys within, or providing access to, the proposed development must be dedicated to the public, be private streets to be owned and maintained by an approved property owners' association, or, if the criteria of this section are met, be a public street easement.
1. Public street easements. Public street easements must:
a. Be approved by the city attorney's office;
b. Be recorded in the county clerk and recorder's office; and
c. Clearly grant to the public an unrestricted right of ingress and egress from a public street to the property to be subdivided.
2. Private streets.
a. Private streets may be required to have a public access easement if deemed necessary by the city.
b. If a private street is proposed, the project must be reviewed as a planned unit development. However, development proposals containing private streets are exempt from the PUD review requirement if:
(1) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet, and the standard back-of-curb to back-of-curb width of 31, 33 or 35 feet; or
(2) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet. The back-of-curb to back-of-curb width may vary from city standards, provided that:
(a) A permanent funding source, such as the levying of assessments against all properties within the development, for street maintenance is established and the funding levels will be adequate for all future private street maintenance; and
(b) The developer signs a waiver of right to protest the creation of SIDs, or other perpetual legal instrument, acknowledging that the city will not assume dedication and/or maintenance of the streets unless the street is brought up to city standards, or the property owners' have agreed to an assessment to fund improvements required to bring the street up to city standards. The developer must record the waiver, or other legal instrument, at the time of
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final plat recordation, or prior to issuance of building permits if no final plat recordation is required.
c. Documented proof of adequate funding and scheduling for maintenance of all private streets, must be provided, subject to section 38.270.09038.220.200.
Section 24
That Section 38.410.060 of the Bozeman Municipal Code be amended as follows:
Sec. 38.410.060. Easements.
A. Required easements. Where determined to be necessary, public and/or private easements must be provided for private and public utilities, drainage, vehicular or pedestrian access, etc.
1. In subdivisions, all easements must be described, dimensioned and shown on the final plat in their true and correct location.
2. In all other developments, the proper easements documents must be prepared for review and approval by the city, and filed at the county clerk and recorder's office. The easement documents must be accompanied by an exhibit indicating the dimensions, and true and correct location, of all easements.
3. No lot may be encumbered by a public or private utility easement in a way that would decrease the amount of buildable land to less than the area required by this chapter for the applicable zoning district.
B. Private utility easements. Private utilities include, but are not limited to, natural gas, electricity, telephone, cable and fiber optic lines. The developer must provide private utility easements necessary to extend private utilities to the development, and to provide for the construction and maintenance of private utilities within the development.
1. General.
a. Building setbacks must be coordinated with all provided utility easements. If a utility easement will be greater than the building setback required by this chapter, a note to that effect must be placed on the final plat and/or final site plan as appropriate.
b. Where a utility easement is to be located in an existing, dedicated right-of-way, an encroachment permit must be obtained from the local or state street or road department having jurisdiction.
c. If placed in a city right-of-way, easements must be in a location required by and agreed upon in writing by all of the appropriate utility companies and the review authority.
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2. Easement size.
a. Front setback utility easements. Front setback utility easements must be ten feet wide, and must always be provided unless written confirmation is submitted to the community development department from all utility companies providing service indicating that front setback easements are not needed.
b. Rear setback utility easements. The provision of rear setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, rear setback utility easements on each lot must be six feet wide if adjacent to a public alley and ten feet if not adjacent to a public alley.
c. Side setback utility easements. The provision of side setback utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, the width of the side setback utility easement must be determined on a case-by-case basis based on the needs of the utility companies.
3. Private utility plans.
a. When the concurrent construction option will be used, based on the provisions of section 38.270.030.D, private utility plans must be included with the preliminary PUD submittal.
b. Private utility plans must be provided with any plans and specifications submittals for the construction of new water, sewer or street infrastructure as specified in the city's design standards and specifications policy.
4. No building shall be constructed that encroaches on a private utility easement unless written approval from all utility companies is provided to the community development department.
C. Public utility easements. Public utilities include water, sewer and stormwater facilities that are dedicated to and maintained by the city.
1. A public utility easement must be granted for all public utility mains not located within public street right-of-way. An easement must be at least 30 feet wide for either one or two utility mains. An additional ten feet of width is required for each additional main that occupies the easement. Wider easements may be required at the discretion of the city for large utility lines.
2. Public utility easements must be provided for all meter pits and fire hydrants maintained by the city.
3. No permanent structures shall be placed within public utility easements unless an encroachment permit has been obtained from the city.
D. Easements for agricultural water user facilities.
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1. Except as noted in subsection D.2 of this section, the developer must establish appropriate agricultural water user facility easements that:
a. Are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of active open ditches or below ground pipelines. Easements may be required when an agricultural water user facility is on adjacent property but an easement necessary to protect the function of the agricultural water user facility crosses onto the property to be developed. The easement must facilitate the delivery of water for irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right;
(1) The easements must ensure the conveyance of irrigation water through the land to be developed to lands adjacent to or beyond the development's boundaries in quantities and in a manner consistent with historic and legal rights; and
(2) A minimum easement width of ten feet is required on each side of irrigation canals and ditches.
b. Are a sufficient distance from the centerline of the agricultural water user facility to allow for construction, repair, maintenance and inspection of the ditch or pipeline; and
c. Prohibit the placement of structures or the planting of vegetation other than grass within the agricultural water user facility easement without the written permission of the facility owner.
2. The developer need not establish agricultural water user facility easements as provided above if the following provisions were met or will be met via the subdivision or site plan process:
a. The average lot size is one acre or less and the developer provides for disclosure, in a manner acceptable to the review authority, that adequately notifies potential buyers of lots that are classified as irrigated land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or
b. The water rights are removed or the process has been initiated to remove the water rights from the subdivided or developed land. If the water rights have been or will be removed from the land within the development it must be so noted with the preliminary plat or plan submittal. If removal of water rights is not complete upon filing of the final plat or approval of the final site plan, the developer must provide written notification to prospective buyers of the intent to remove the water right and must document that intent, when applicable, in agreements and legal documents for related sales transactions.
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3. The realignment or relocation of active irrigation ditches or pipelines is discouraged. If an agricultural water user facility or points of diversions thereon are proposed to be realigned or relocated, the developer's professional engineer must certify, prior to final plat or final plan approval, that the water entering and exiting the realigned or relocated agricultural water user facility is the same quality and amount of water that entered or exited the facility prior to realignment or relocation.
4. Stormwater from a development must not be discharged to an agricultural water user facility without written approval from the owner of the facility and corresponding stormwater conveyance easements.
5. If the developer demonstrates that easements have been extinguished pursuant to state law, or the holder of the easement consents in writing to the extinguishment, or the easement is not required per subsection D.2, the developer may remove ditch laterals from within the subdivision.
6. If agricultural water user facility easements are required, a notice must also be recorded with a final plat or prior to final plan approval, stating that the easements are subject to the requirements of Section 70-17-112, MCA restricting interference with canal or ditch easements and that irrigation works are subject to Section 85-7-2211 and 85-7-2212, MCA regarding duties and liability. The notice must include language to assure the duties are binding upon all successors in interest and remain in effect until such time that the agricultural water user facility is abandoned in accordance with the requirements of Montana Law or alternative requirements are agreed to in writing by all applicable parties. The easements must be prepared as documents separate from a final plat but may be referenced on a final plat.
7. Any other mitigation of impacts to an agricultural water user facility identified during development review must be coordinated with any required easement. Mitigation shall be reasonable, based on site-specific conditions, and shall be developed with consideration of comments received from the water users and or agricultural water user facility’s authorized representatives.
E. Other easements. Public access easements for streets and trails must be provided in accordance with the provisions of divisions 38.400 and 38.420 of this chapter.
Section 25
That Section 38.410.020 of the Bozeman Municipal Code be amended as follows:
Sec. 38.410.020. Neighborhood centers.
A. To provide a neighborhood focal point, all residential subdivisions or planned unit developments that are ten net acres in size or greater, must have a neighborhood center. Developments may be exempted from this requirement if every lot within the development is within one-half mile of an existing neighborhood center. Generally, the center must be no
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less than one acre in size. The center must be comprised of a park, square, green, plaza, transit stop, neighborhood commercial center, civic use or any combination of these. The following requirements apply to all neighborhood centers:
1. The geographic center point of the neighborhood center must be no further than 600 feet from the geographic center point of the development. This requirement may be waived in the following circumstances:
a. The development would create parcels that are all non-residential;
b. The center is a neighborhood commercial center or is adjacent to a neighborhood commercial center;
c. The site is constrained by the presence of critical lands;
d. The site is part of an approved subarea plan that shows the center in a different location; or
e. The topography of the site presents physical constraints on the property.
2. With the exception of civic and neighborhood commercial center uses, the developer must install all center-related improvements as part of the required development improvements. When a multi-phase project is developed, improvements must be installed with each phase. Required improvements must be based on the definition of each feature found in article 7 of this chapter, and/or city standards.
3. The neighborhood center must have frontage along 100 percent of its perimeter on public or private streets or roads. The city may consider and approve the installation of streets along less than 100 percent, but not less than 50 percent, of the perimeter in accordance with section 38.420.060.
4. With the exception of civic and neighborhood commercial center buildings and grounds, the center is considered a common area to be owned and maintained by the property owners' or a property owners' association. The property owners' association may establish an improvement district to collect assessments to pay for the maintenance.
5. After receiving a recommendation from the city recreation and parks advisory board, aAreas within neighborhood centers used for park, square, or green may count towards parkland dedication requirements (subject to review and approval by the review authority) if they meet the following criteria:
a. The area is predominantly open space with enhanced natural features, but may contain amenities such as sidewalks, seating, drinking and ornamental fountains and public art; and
b. The area provides active and/or passive recreation opportunities.
6. The neighborhood center may be used for limited stormwater retention/detention facilities if reviewed and approved by the review authority. However, any part of the
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center used for stormwater management does not count towards park dedication requirements.
7. New neighborhood commercial centers are subject to the community design framework master plan provisions of sections 38.210.130 and 38.510.030.L.
Section 26
That Section 38.420.050 of the Bozeman Municipal Code be amended as follows:
Sec. 38.420.050. Location.
A. General. The review authority, in consultation with the developer, recreation and parks advisory board and parks department, and the planning board if applicable, may determine suitable locations for parks and playgrounds. Parkland must be located on land suitable to and supportive of the activities and functions depicted in the relevant park plan, and unless the park plan indicates a requirement for another configuration, should be kept in a large block.
B. Subarea or neighborhood plans. If a subarea or neighborhood plan has been adopted for
the area, the subdivision must comply with the subarea or neighborhood plan for the location of
parks
Section 27
That Section 38.420.080 of the Bozeman Municipal Code be amended as follows:
Sec. 38.420.080. Park development.
A. General. Developers must consult any adopted citywide park plan, and with the recreation and parks advisory boardparks department which implements the plan, to determine the types of parks needed for the proposed development and surrounding area. Parks must be developed in accordance with the citywide park plan and any approved park master plan. At a minimum, all parks must be improved to the following standards by the developer, prior to final plat or final occupancy approval as appropriate:
1. Minimum required improvements to land dedications. The subdivider must level any park area, amend the soil, seed disturbed areas to allow mowing with turf type mowers, and install an underground irrigation system in compliance with city standards and specifications.
a. Parks must be seeded with drought tolerant grass seed unless approved otherwise in writing by the park superintendent.
2. Irrigation. The developer must irrigate the park area until 50 percent of the subdivision lots or condominium units are sold. Thereafter, the property owners' association must
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be responsible for park irrigation. The property owners' association may establish an improvement district to collect assessments to pay for irrigation.
a. Wells must be used to irrigate parkland.
B. Boundaries. The park boundary bordering all private lots must be delineated at the common private/public corner pins, with flat, flexible fiberglass posts, a minimum of six feet in length with no less than two feet driven into the ground. Each post must be labeled with a permanent glued on sign stating "Park Boundary" or "Property Boundary." Other forms of boundary marking may be approved by the planning or other appropriate department.
C. Sidewalks. Sidewalks, when required within the development, must be installed by the developer at points where the park borders or crosses public or private streets.
D. Stormwater detention/retention ponds. Stormwater retention or detention ponds may be located within public parkland, but such areas do not count towards the parkland dedication requirement. Any stormwater ponds located on parkland must be designed, constructed and/or added to so as to be conducive to the normal use and maintenance of the park. Stormwater ponds may not be located on private lots. Stormwater retention or detention ponds must be maintained by the property owners' association.
E. Clean up required. All fencing material, construction debris and other trash must be
removed from the park area.
Section 28
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 29
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 30
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 31
Codification.
This Ordinance shall be codified as indicated in Section 2–28.
Section 32
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the _____ day of ________________, 2021
____________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
____________________________________
MIKE MAAS
City Clerk
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FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 2021. The effective date of this ordinance is __________, __, 2021.
_________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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Memorandum
REPORT TO:Planning Board
FROM:Chris Saunders, Community Development Manager
Martin Matsen, Community Development Director
SUBJECT:Continued Discussion of the Clarion Report on the Bozeman Code Audit to
Create and Preserve Housing and Development of Recommendations.
MEETING DATE:October 18, 2021
AGENDA ITEM TYPE:Community Development - Legislative
RECOMMENDATION:Discuss the Clarion report and identify comments for the Planning Board to
submit regarding housing.
STRATEGIC PLAN:4.1 Informed Conversation on Growth: Continue developing an in-depth
understanding of how Bozeman is growing and changing and proactively
address change in a balanced and coordinated manner.
BACKGROUND:Availability of housing is an important and long standing issue for the City
and discussed in the Bozeman Community Plan 2020. The City adopted a
Community Housing Action Plan in 2020. Part of that document called for a
review of the City's development regulations. The City selected Clarion and
Associates to do that work. The report has been issued for public review and
comment on recommendations and alternatives identified by Clarion.
Clarion presented the report to the Planning Board and Zoning Commission
on September 27th. The Planning Board requested time to discuss the report
and craft comments from the Planning Board. The public comment timeline
has been extended from October 13th to October 21st to support the
request. There are five outcomes with individual recommendations to
support each outcome included in the report. The Planning Board may offer
comments on some or all of the recommendations.
The recommendations from Clarion are available on the City's website at
https://www.bozeman.net/government/planning/community-
housing/bozeman-code-audit-to-create-and-preserve-housing.
UNRESOLVED ISSUES:None
ALTERNATIVES:Decide what comments to submit.
FISCAL EFFECTS:No budgeted funds will be expended for this discussion.
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Report compiled on: October 13, 2021
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