HomeMy WebLinkAbout11-19-21 Public Comment - Gallik, Bremer, & Molloy - Canyon GateGALLIK, BREMER & MOLLOY, P.C.Attorneys at Law777 East Main Street, Suite 203PO Box 70Bozeman, Montana 59771-0070(406)404-1728November 19, 20211VIA EMAIL & HAND-DELIVERYZoning CommissionCity ofBozemanAlfred Stiff Professional Building20 East OliveBozeman,Montana 59715RE: Canyon Gate Annexation and Zoning Application.Honorable Members of the Bozeman Zoning Commission:This Firm, along with attorney Stephen Pohl, represent a number of concernedresidents, property owners and tax payers who own and live on property adjacent toor near the proposed Canyon Gate Development. They do not oppose the requestfor annexation. Instead, as their letters of protest make clear, they strongly opposethe proposed zoning within the various parcels of property - specifically R-5, B-2M,REMU and R-3. As summarized below, the proposed R-5, B-2M and REMU areinconsistent with the character of the existing neighborhood and surrounding landuses and therefore does not comply with the Bozeman Community Plan, as adoptedby the City. There are also significant issues associated with the proposed internaltransportation plan and impacts associated with additional, high-densitydevelopment in an area of the community already plagued by emergency responseissues associated with the existing railroad tracks and train traffic. The members ofthe community most impacted by this Application - the existing neighborhood —have done an excellent job summarizing why the Application is properly rejectedand have gathered far more than the minimum threshold of written protests to thisApplication to trigger a requirement that a supermajority of the City Commissionvote to approve zoning classifications on the parcels of ground that make up thisApplication. We incorporate their letters and protests by reference. Finally, theApplication, if approved, constitutes impermissible spot zoning.1
A. Discussion1. Standards of Review.•f"Beyond a doubt, the most frequently litigated zoning issue involves thevalidity ofrezoning decisions." Ziegler, 3 The Law of Zoning cmd Planning, (2018ed.) § 38:1 at 38-2. The policy considerations ~ and, derivatively, legal principles- governing rezoning can be conceptualized as attempts to reconcile the competingand often conflicting goals of promoting, on the one hand, desired stability andpredictability, and, on the other hand, desired flexibility. Id.In Lovve v City of Missoula, 165 Mont. 38, 43, 525 P.2d 551, 554 (1974)(overruled on other groimds by Greens at Fort Missoula, LLC v. City ofMissozda,271 Mont. 398, 897 P.2d 1078 (1995)) the Supreme Court statedThere is under Montana statutes and case law a sound distinctionbetween 'zoning'' and the act of 'rezoning' or granting or refusing avariance. The former constitutes a legislative act while the latter ismore of an administrative or quasi-judicial act in applying provisionsof existing ordinance and law. In such application the exercise of sounddiscretion is limited by the provisions of the statute, including suchstandards as are set forth therein.165 Mont. at 43 . The Court held that a grant of rezoning was invalid absent factsand findings showing compliance with standards set forth in what is now MCA §76-2-304.The Court retreated from Lowe in Schanz v. City of Billings, 182 Mont. 328,597 P.2d 67 (1979), stating "A review of authorities reveals no elemental distinctionbetween the act of 'zoning' and the act of 'rezoning.' A rezoning ordinance, like azoning ordinance, is a legislative enactment, and is entitled to presumptions ofvalidity and reasonableness. . . . [W]e depart here from the distinction expressed inLo^ve between the acts of zoning and rezoning." 597 P.2d at 71. The Court stated,however, that Lowe retained continued validity inasmuch as rezonings must still bereviewed for facts and findings showing compliance with the substantive standardsand has been relied upon by the Court in cases since then, including Lake CountyFirst v. Poison City Council, 2009 MT. 322, 352 Mont. 489, 218 P.3d 816.2'
In Lake County First, Wal-Mart obtained an interest in property and soughtannexation into the City of Poison, along with a change in zoning. Id., ^ 9. TheCourt determined that "[t]he applicable standard of review is whether theinformation upon which the [governing body] based its decision is so lacking in factand foundation that is it clearly unreasonable and constitutes an abuse of discretion."Id, Tf 33 (emphasis added). See also Englin v. Bd. of Co. Commrs., 2002 MT 1 15,310 Mont. 1, 48 P.3d 39 (board's denial of request for zoning change was not"arbitrary or capricious").To be arbitrary or capricious, "the decision being challenged must appear tobe random, unreasonable, or seemingly unmotivated, based on the existingrecord." Kiely Constr., L.L.C. v. City of Red Lodge, 2002 MT 241, ^ 69, 312 Mont.52, 57 P.3d 836. A decision is also arbitrary and capricious if it was not "based ona consideration of the relevant factors." dark Fork Coalition v. DEQ, 2012 MT240, 366 MT 427, 288 P.3d 183.Further, and "[a] s in the case of statutes, zoning ordinances must be giventheir plain and obvious meaning." Ziegler, 1 The Law of Zoning and Planning, §5:11 at 5-23. It is fundamental that this Commission and the City Commission, likea Court interpreting a statute, is required to apply the plain language of theregulation, and not insert what has been omitted or omit what has been inserted.MCA §1-2-101; Supula v. Montana DO J, Drivers License Bureau, 278 Mont 421,424, 925 P.2d 480, 481 (1996) ("When ... statute is "plain, unambiguous, direct andcertain, the statute speaks for itself and there is nothing left for the court toconstme." SeecilsoMCA§ 1-2-106 ("Construction of words and phrases. [W]ordsand phrases used in the statutes of Montana are construed according to the contextand the approved usage of the language . . . .").Further, the UDC is a separate, binding regulatory ordinance. Lake CountyFirst at ^ 48. The Commission is not permitted to insert language not present in theUDC or Growth Policy, ignore what is plainly written in the UDC or Growth Policy,or attempt, through legislative fiat, to amend the language of the UDC to fit itspresent desires. To this end, the UDC states, in "[t]heir interpretation andapplication, the provisions of this chapter are minimum requirements adopted for thepromotion of the health, safety, and general welfare of the community.... Whereverthe requirements of this chapter are at variance with the requirements of otherlawfully adopted rules or regulations, or wherever there is an internal conflict withinthis chapter, the most restrictive reqzdrements, or those imposing the higher standardwill govern." UDC, § 38.100.050.A (emphasis added).3
2. The Requested Zoning is Inappropriate for the Property.In this case, the Canyon Gate Property is 24-acres in size. It is located offBridger Drive and Story Mill Road. The existing Legends and Creekwoodsubdivisions that border on the Canyon Gate property to the North and East and theBridger Creek Subdivision across Story Mill Road, west of Legends, are allclassified as R-l, (residential Single-Household Low Density), R-3 (ResidentialMedium Density) and B-l (Neighborhood Business District). The HeadwatersSubdivision across Bridger Drive from the subject property is all zoned R-S(Residential Suburban).It is estimated that those four subdivisions amount to approximately 400 acres.Including the Bridger Creek Golf Course, the neighborhood consists of about 500acres of low density residential and recreational property. Montana Cadastral showsthere to be 778 tax parcels within that area and immediately West of Birdie Drive onBridger Drive as far as Ghost Town coffee.The zoning classifications Canyon Gate seeks on the approximately 24-acresinclude B-2M (Community Business District), REMU (Residential EmphasisMixed-Use), R-5 (Residential Mixed Use High Density) and R-3 (ResidentialMedium Density). The requested zoning designations are clearly and conclusivelyinappropriate for the subject 24-acre property, and therefor does not comply with thegrowth policy (Bozeman Community Plan 2020).As will be explained by W. Randall Johnson, AICP, an expert land useplanner, retained by our clients to review and comment on the proposed Application,the requested zoning designations ignore the established development pattern of theneighborhood and are therefore incompatible, inconsistent, and out of character withsurrounding land uses and zoning as reflected on the zoning map for the area.The R-5, B-2M and REMU districts allow for significantly higher (andtherefore unpredictable) density and building height (up to 60 feet) than thesurrounding/adjacent zoning classifications (R-S, R-l, R-3), which is out-of-character with the neighborhood. Further, the intent of the R-5 District, as set forthin Bozeman's code, concludes by stating that "use of this zone is appropriate forareas adjacent to mixed-use districts and/or served by transit to accommodate ahigher density of residents in close proximity to jobs and service". The Intent of theB-2M District states that "use of this zone is appropriate for commercial nodes", and4
the intent and purpose of the REMU District is "to establish areas within Bozemanthat are mixed-use in character".Planner Johnson is expected to testify that the high development intensity anddensity of the requested zoning designations are inappropriate for the area, and donot support the growth policy, as the subject property is located near the northeastedge of the City ofBozeman (adjacent to the Bridger Canyon Zoning District andDonut area zoned as Agriculture Suburban (A-S)). The B-2M and REMU zoningin this location. Planner Johnson is expected to testify, would result in a dispersedcommercial development node, far detached from community services and the coreofBozeman. Further, uses allowed in the B-2M and REMU districts are varied andextensive, resulting in unpredictable and undeterminable uses and impacts on theneighborhood and adjacent properties.The application and narrative requesting the R-5, B-2M and REMU zoningdesignations only address the land use designations as shown on the Future LandUse Map and the land use definitions provided. The zone map amendmentapplication fails to address the applicability and compatibility of the requestedzoning designations with the established neighborhood and adjacent residentialsubdivisions.Moreover, Mr. Johnson is expected to testify that to implement the BozemanCommunity Plan 2020 (Growth Policy), a development plan and subsequent zoningfor the subject property must be consistent and complimentary with the existingneighborhood character, development pattern and adjacent land uses. Specifically:1.2.3.Establish residential zoning designations that are compatiblewith the scale and density of the immediately adjacentsubdivisions (R-l, R-3).Establish neighborhood scale commercial zoning designation(B-l) which meets the need of the community, and one that doesnot establish a new commercial business node detached from thecore of Bozeman, or one that creates a new "travel to" workerdestination (Cannery District).Conduct neighborhood meetings and workshops (with theguidance of the C/B Neighborhood Coordinator) to formulate adevelopment plan for the subject property that addresses the5
proper density and commercial use, and that complies andimplements the Growth Policy, which to date has not occurred.Further, it is noteworthy that the Application is riddled with answers torequests for information with the following: "TBD" (to be determined). TheApplicant has not done its homework, has not conducted neighborhood meetings,and has misapplied the clear policy directives of the City's Zoning Ordinance andthe Growth Policy.We recognize that ultimately the Zoning and City Commissions have "broadlatitude to determine a policy direction," but that direction as set forth in theCommunity Plan and the UDC confines that discretion and does not permit theZoning and City Commissions to ignore the plain language of the regulatorydocument, or ignore the circumstances under which the growth policy was adopted.The evidence before the Commission, in the form of expert testimony and thetestimony of those most impacted by this proposal will make this abundantly clearand precludes the Commission from finding facts and making findings, groundedupon the evidence, showing compliance with the substantive standards, as requiredby law. Lake County First v. Poison City Council, 2009 MT. 322, 352 Mont. 489,218 P.3d 816. Stated another way, denial of the requested Application is supportedby the facts and governing documents.3. The Application, if Approved, Constitutes Spot Zoning.it"An amendment which reclassifies a small parcel to allow a use which isinconsistent with its neighborhood is likely to be overturned." Ziegler, 3 The Lawof Zoning and Planning, pp. 41-42. As one court explained, spot zoning is "anattempt to wrench a single small lot from its environment and give it a new ratingwhich disturbs the tenor of the neighborhood." Magnin v. Zoning Commission ofTown of Madison, 138 A.2d 522, 423 (Conn. 1958). The "tenor of the neighborhood"is evidenced by the existing zoning on the adjacent properties and as confirmed bythe testimony of the neighbors and property owners at the Commission hearing andMCA § 76-2-305(2) — the statute governing protests by the owners of lots within150 feet from the Applicant's property.As explained, the Legends and Creekwood subdivisions that border on theCanyon Gate property to the North and East and the Bridger Creek Subdivisionacross Story Mill Road west of Legends are all classified as R-l, (residential Single-Household Low Density), R-3 (Residential Medium Density) and B-l6
(Neighborhood Business District. The Headwaters Subdivision across Bridger Drivefrom the subject property is all zoned R-S (Residential Suburban).It is estimated that those four subdivisions amount to approximately 400 acres.Including the Bridger Creek Golf Course, the neighborhood consists of about 500acres of low density residential and recreational property. Montana Cadastral showsthere to be 778 tax parcels within that area and immediately West of Birdie Drive onBridger Drive as far as Ghost Town coffee.As noted above, the zoning classifications Canyon Gate seeks on theapproximately 24 acres of the subject property include B-2M (Community BusinessDistrict), REMU (Residential Emphasis Mixed-Use), R-5 (Residential Mixed UseHigh Density) and R-3 (Residential Medium Density).One of the Legends residents who will be testifying at the hearing before theCommission has calculated, based on the acreage proposed by the developer for eachzoning district, that if approved, could potentially amount to up to 1000 residences.That would make over 41 residences per acre. In contrast, the 185 lots in the 77-acre Legends subdivision amount to 2.4 residences per acre. Assuming theresidences in the 4 neighboring subdivisions consist of 400 acres, the density in thosesubdivisions amounts to 1.9 residences per acre.It is respectfully submitted that the requested zoning classifications, ifapproved, would constitute impermissible spot zoning. "Whether impermissiblespot zoning has occurred presents sifact-specific inquiry that will vary from one caseto the next." Plains Grains, L.P. v. Bd of County Comm 'rs, 357 Mont. 61, ^ 58, 238P.3d 332, citing Little v. Flathead County, 193 Mont. 334, 631 P.2d 1282 (1981).The Montana Supreme Court looks to three factors in determining whetherspot zoning has occurred. First, in spot zoning, the requested use is significantlydifferent from the prevailing use in the area. Second, the area of the requested usesis rather small, with the primary concern being the number of separate landownersbenefited by the requested change than it is with the actual size of the area benefitted.Third, the requested change is more in the nature of special legislation. In otherwords, it is designed to benefit only one or a few landowners at the expense of thesurrounding landowners or the general public. Little, 193 Mont. at 346.Little involved a landowner's request to rezone a 59-acre tract to allowconstruction of a shopping center in an area that, like here, was "surrounded on threesides by the City boundaries," and, also like here, consisted of almost 99 percentresidential. Based on these factors, the Court held that "the county commissioners7
were engaged in a pernicious system of spot zoning devoid of any redeemingqualities." Id. at 348. The same must be said of the proposal at issue if approvedas requested by the developer.In Greater Yellow stone Coalition v. Board of County Commissioners ofGallatin County, 305 Mont. 232, 25 P. 3d 168 (2001), a developer owned 323 acresof undeveloped land in the Hebgen Lake Zoning District. The District encompassedover 13,000 acres, of which 41% was privately owned and 59% on public lands. 25P.3d^4.The Zoning District Ordinance designated the subject property as R-10, onesingle family unit per 10 acres. This zoning classification would have allowed amaximum of 32 single family residences on the 323-acre parcel. The developersought a change to Planned Unit Development (PUD), in which permitted usesinclude single and multi-family dwellings, bars, gas stations, laundromats, motels,restaurants, retail stores, guest houses and storage units and RV parks. Id,, ^5.The land bordering the Duck Creek property included 5 residences, a bar, aMontana Department of Highways gravel pit, Custer Gallatin National Forest landsand Yellowstone National Park. Id, *\6.After the Gallatin County District Court voided the Zoning Commission'sapproval of the zone change, the Supreme Court affinned, finding that GallatinCounty had engaged in illegal spot zoning of a 3 23-acre parcel that comprised "amere 2% of the District's 13,280 acres." Id,, ^26.In Plains Grains, the owners of 668 acres of land in Cascade County soughta zone change from agricultural to heavy industrial so as to allow for the constructionand operation of a gas-fired power plant. With particular relevance to the issuepresented by Canyon Gate's application, the Court noted that the County's staffreport "acknowledged that the construction and operation of the plant would be'outof character with the existing agricultural land uses in the vicinity of the proposedrezoning,' but that 'construction and operation of the HGS would not necessarily be'out of character with the land uses allowed under the existing A-2 zoning district.'"Id.,^.Referring to the first factor of the Little analysis, the Court furtheracknowledged that its spot zoning analysis required it, just as this commission isrequired, to "look at both the challenged parcel and the surrounding zones," 32, andthat "the proposed rezone to facilitate construction of the HGS would create an islandof heavy industrial zoning within a large area zoned for agricultural uses." Id., ^[ 61.8
Citing the second factor, the Court noted its conclusion in GreaterYellowstone that the 323 acre parcel comprised "a mere 2% of the District's 13,280acres," and that the 668 acres at issue in Plains Grains comprised a similarly smallpercentage of the land zoned for agriculture in Cascade County. Id. at^6?>.As to the third factor, whether the proposed zone change constitutes "speciallegislation," the Court pointed out that, again with particular relevance to theproposal at issue here, "The number of landowners affected relates directly towhether the zoning constitutes special legislation designed to benefit one person,"(citation omitted), and that "This inquiry should focus on the benefits of the proposedrezone to surrounding landowners, not the benefits - financial or otherwise - thatwould accme from the proposed development." Id., ^ 64 (citation omitted). TheCourt accordingly held the proposed change to be impennissible spot zoning.Analysis of the three Little factors compels the same conclusion here. First,the Canyon Gate property is bordered by and/or across the street from foursubdivisions that are likely 99% residential. Second, the 24-acre parcel comprisesless than 1% of the surrounding and adjacent subdivisions.Third, as of the present date, the Commission has been, or will be, presentedwith protest forms signed by an overwhelming majority of the owners of the 70parcels situated within 200 feet of the proposed development who oppose therequested zone change. It is obvious from this evidence that the proposed zoningchange will provide no benefit to the affected landowners.There is no indication in the Supreme Court opinions discussed above that theCourt was presented with evidence of the percentage of those affected by a proposedzoning change that opposed it. This case is therefore a more compelling case thanany of those decisions for denial of the zoning changes requested by Canyon Gate.Accordingly, this Commission should deny Canyon Gate's requested zoningclassifications.In sum, and for the foregoing reasons, we respectfully request, on behalf ofour clients, that the Zoning Commission follow the evidence, apply the plainlanguage of the Community Plan and UDC and recommend DENIAL of thisApplication.RESPECTFULLY SUBMITTED this 19th day of November 2021.9
LAW OFFICES OF STt^PI IEN POHL GALLIK.By:L^lMI^v:Stephen PohlC: ClientsPlanning OfficeCity Attorney.R& M01.X)Y, P.C.!^nan(/ii!lik10
ARTICLE 3. - ZONING DISTRICTS AND LAND USESDIVISION 38.300. - ZONES, MAPS AND DESIGNATIONSFootnotes:- (3) -S(a(e Law reference — Municipal zoning, MCA 76-2-301 et seq.Part 1. - Zoning Districts and Zoning MapSec. 38.300.010.-Purpose.Individual zoning districts are adopted for the purposes described in section 38.100.040. Furthermore:A. A variety of districts is established to provide locations for the many uses needed within a healthy and dynamiccommunity.B. Each district, in conjunction with other standards incorporated in this chapter, establishes allowable uses ofproperty, separates incompatible uses, and sets certain standards for use of land.C. This provides predictability and reasonable expectation in use of land within particular zoning designations andsites.D. The zoning provisions implement the community goals and objectives that are contained in the city's adoptedgrowth policy.E. Zoning districts and the zoning map communicate the City's expectation for land use in each particular district.Sec. 38.300.020. - Use districts designated, zoning map adopted.A. The city is divided into zones, or districts, as shown on the official zoning map which, together with all explanatorymatter thereon, is adopted by this reference and declared to be a part of this chapter.B. The purpose statements for each zone and map designation set forth in part 2 of this division shall be used to guidethe application of the zones and designations to all lands in the city. The purpose statements also shall guideinterpretation and application of land use regulations within the zones and designations, and any changes to therange of permitted uses within each zone through amendments to this title. For the purpose of this chapter, the cityis divided and classified into the following use districts:IR-SR-1R-2R-3R-4Residential Suburban DistrictResidential Low Density DistrictResidential Moderate Density DistrictResidential Medium Density DistrictResidential High Density DistrictR-5Residential Mixed-Use High Density District
R-0RMH1_B1.B-2B-2MB-3UMUM-1M-2B-PPLINEHMUResidential-Office DistrictResidential Manufactured Home Community DistrictNeighborhood Business DistrictCommunity Business DistrictCommunity Business District - Mixedj Downtown Business District"t~--Urban Mixed-Use DistrictLight Manufacturing DistrictINCLREMUManufacturing and Industrial DistrictBusiness Park DistrictI--1Public Lands and Institutions DistrictNortheast Historic Mixed-Use DistrictNeighborhood Conservation Overlay DistrictResidential Emphasis Mixed-use DistrictC. Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part ofthe city that the range of uses allowed within that district are generally acceptable in that location. It is not aguarantee of approval for any given use priortothe completion of the appropriate review procedure and compliancewith all of the applicable requirements and development standards of this chapter and other applicable policies,laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the partof the city to bear the cost of extending services.(Order No. 2018-01 , § 4, 4-18-2018; Order No. 2Q19^L 9-13-201 9)Sec. 38.300.030. - Official map availability, certification and authority; changes.A. The official maps must be available in the community development department and must bear a certificate with thesignature of the mayor attested by the city clerk and the date of adoption of the ordinance codified in this chapter.B. This certificate should read as follows:
This is to certify that this is an Official Zoning Map referred to in sectionCityofBozeman, Montana.of Ordinance No.of theMayorIAttestedDate of AdoptionC. Regardless of the existence of purported copies of the official zoning maps, which may from time to time be made orpublished, the official zoning maps kept in the community development department must be the final authority as tothe current zoning status of land and water areas, buildings and other structures in the city.Sec. 38.300.040. - Official map replacement conditions.A. In the event that the official zoning maps become damaged, destroyed, lost or difficult to interpret because of thenature or number of changes or additions thereto, the city commission may adopt and certify new official zoningmaps which must supersede the prior official zoning maps. The new official zoning maps may correct drafting orother errors or omissions in the prior map, but no such corrections shall have the effect of amending the originalofficial zoning maps or any subsequent amendment thereof.B. If any changes to the map are made by amendment of this chapter in accordance with division 38.26Pof thischapter, such changes must be made to the official zoning maps and signed, dated and certified upon the map orupon the material attached thereto. Interpretations per 38.300.050 and revisions to the map to accommodateannexations and other changes necessitating interpretation must be reflected.C. The new official zoning maps must be identified by signature of the mayor attested by the city clerk. The certificateshould read as follows:This is to certify that this Official Zoning Map supersedes and replaces the Official Zoning Map adopted as partof Ordinance No._ofthedtyofBozeman, Montana.rMayorAttestedDate of AdoptionLSec. 38.300.050. - Boundary interpretation guidelines.A. Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the boundaries mustbe interpreted as following the nearest logical line to that shown:1. Boundaries indicated as approximately following the centerline of streets, highways or alleys must be construed
to follow such centerlines;2. Boundaries indicated as approximately following platted lot lines must be construed as following such lot lines;3. Boundaries indicated as approximately following city limits must be construed as following such city limits;4. Boundaries indicated as following railroad lines must be construed to be midway between the main track or rails;5. Boundaries indicated as following the centerline of streams, rivers, canals or ditches must be construed to followsuch centerlines; and6. Boundaries indicated as parallel to or extensions of features indicated on the official zoning map must bedetermined by the scale of the map.7. When a parcel subject to two or more districts is subdivided and the district boundary is near a new parcelboundary the district must be construed to follow the new boundary.B. Where physical or cultural features existing on the ground are at variance with those shown on the official zoningmap, or where other circumstances or controversy arise over district boundaries, the community developmentdirector must interpret the district boundary. Such interpretation is subject to appeal as set forth in division 38.250in this chapter.C. Where district boundaries divide a lot or parcel into two or more districts, the following rule applies:For the purpose of determining permitted uses and development form and intensity, the community developmentdirector may allow minor adjustments (up to ten percent increase or decrease in area, not to exceed one acre, ofeither zone on the applicable lot) to the zoning boundary. The criteria for making such a determination must includean evaluation of site topography, proximity of non-compatible uses adjacent to the subject property, and overallfunction and integration of the development with the community.Sec. 38.300.060. - Zoning of annexed territory.A. All territory which may hereafter be annexed to the city must, in conjunction with the annexation, be the subject of azone map amendment in order to be designated and assigned to a city zoning district.B. Areas of annexed public right-of-way must be considered to be zoned according to the provisions of section38.300.040.A. The city commission must determine the appropriate zoning for any and all areas to be annexed to thecity but must request a recommendation from the zoning commission and must take into consideration the citygrowth policy. Any ordinance adopting such zoning amendment must not take effect prior to the effective date ofsuch annexation.Part 2. - Zoning District Intent and Purpose StatementsSec. 38.300.100. - Residential zoning districts—Intent and purpose.The intent and purpose of the residential zoning districts is to establish areas within the city that are primarily residential incharacter and to set forth certain minimum standards for development within those areas. The residential districts also allowcomplementary non-residential uses. The purpose in having more than one residential district is to provide opportunities for avariety of housing types and arrangements within the community while providing a basic level of predictability. There is apresumption that the uses set forth for each district will be compatible with each other when the standards of this chapter aremet and any applicable conditions of approval have been satisfied. The presumption of compatibility may be overcome by ashowing of specific evidence through the development review process that proves a development to be non-compliantwithapplicable standards.
Additional requirements for development apply within overlay districts. All development is subject to section 38.1 00.050.Residential density is correlated with many community goals and objectives that are contained in the city's adopted growthpolicy, as well as many standards and purposes of this chapter. Section 38.320.020 and TableJ8^320Q30 sets standards forminimum densities in residential districts which will advance these goals, objectives, and purposes.A. Residential suburban district (R-S). The intent and purpose of the R-S residential suburban district is tocommemorate and preserve existing RS zoning only. These purposes are accomplished by:1. Subdivision and site plan developments in this district are subject to the provisions of division 38.430 of thischapter, pertaining to planned unit development, and shall be developed in compliance with the adopted citygrowth policy.2. Allowing permitted uses in circumstances where environmental constraints limit the desirable density.3. Providing for a minimum lot size in developed areas consistent with the established development patternswhile providing greater flexibility for clustering lots and housing types in newly developed areas.4. This district is not available for newly created subdivisions, undeveloped land, or any land annexed into thecity on or after January 1, 2018.B. Residential low density district (R-1). The intent of the R-1 residential low density district is to provide forprimarily single-household residential development and related uses within the city at urban densities. Thesepurposes are accomplished by:1. Providing for a minimum lot size in developed areas consistent with the established development patternswhile providing greater flexibility for clustering lots and housing types in newly developed areas.2. Providing for such community facilities and services as will serve the area's residents while respecting theresidential character and quality of the area.C. Residential moderate density district (R-2). The intent of the R-2 residential moderate density district is to providefor one- and two-household residential development at urban densities within the city in areas that present fewor no development constraints. These purposes are accomplished by:1. Providing for minimum lot sizes in developed areas consistent with the established development patternswhile providing greater flexibility for clustering lots and housing types in newly developed areas.2. Providing for community facilities to serve such development while respecting the residential quality andnature of the area,Use of this zone is appropriate for areas with moderate access to parks, community services and/or transit.D. Residential medium density district (R-3). The intent of the R-3 residential medium density district is to providefor the development of one- to five-household residential structures near service facilities within the city. Thispurpose is accomplished by:1. Providing for minimum lot sizes in developed areas consistent with the established development patternswhile providing greater flexibility for clustering lots and mixing housing types in newly developed areas.2. Providing for a variety of housing types, including single household dwellings, two to four householddwellings, and townhouses to serve the varied needs of households of different size, age and character, whilereducing the adverse effect of non-residential uses.Use of this zone is appropriate for areas with good access to parks, community services and/or transit.E. Residential high density district (R-4). The intent of the R-4 residential high density district is to provide for high-density residential development through a variety of housing types within the city with associated servicefunctions. This purpose is accomplished by:1. Providing for minimum lot sizes in developed areas consistent with the established development patterns
while providing greater flexibility for clustering lots and mixing housing types in newly developed areas.2. Providing for a variety of compatible housing types, including single and multi-household dwellings to servethe varying needs of the community's residents.3. Allowing office use as a secondary use, measured by percentage of total building area.Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial districts, and/or served bytransit to accommodate a higherdensity of residents in close proximity to jobs and services.F. Residential mixed-use high density district (R-5). The intent of the R-5 residential mixed-use high density district isto provide for high-density residential development through a variety of compatible housing types andresidentially supportive commercial uses in a geographically compact, walkable area to serve the varying needsof the community's residents. These purposes are accomplished by:1. Providing for a mixture of housing types, including single and multi-household dwellings to serve the varyingneeds of the community's residents.2. Allowing offices and small scale retail and restaurants as secondary uses provided special standards are met.Use of this zone is appropriate for areas adjacent to mixed-use districts and/or served by transit toaccommodate a higher density of residents in close proximity to jobs and services.G. Residential-office district (R-0). The intent of the R-0 residential-office district is to provide for and encourage thedevelopment of multi-household and apartment development and compatible professional offices andbusinesses that would blend well with adjacent land uses. These purposes are accomplished by:1. Providing for a mixture of housing types, including single and multi-household dwellings to serve the varyingneeds of the community's residents.Use of this zone is appropriate for areas characterized by office or multi-household development; and/or areasalong arterial corridors or transitional areas between residential neighborhoods and commercial areas.H. Residential manufactured home community district (RMH). The intent of the RMH residential manufacturedhome community district is to provide for manufactured home community development and directly relatedcomplementary uses at a density and character compatible with adjacent development. Use of this zone isappropriate for existing mobile home parks and areas adjacent to commercial or mixed-use districts and/orserved by transit.Sec. 38.300.110. - Commercial and mixed-use zoning districts—intent and purpose.The intent and purposes of the commercial zoning districts are to establish areas within the city that are primarilycommercial in character and to set forth certain minimum standards for development within those areas. The purpose inhaving more than one commercial district is to provide opportunities for a variety of employment and community serviceopportunities within the community, while providing predictability. There is a rebuttable presumption that the uses set forth foreach district will be compatible with each other both within the individual districts and to adjoining zoning districts when thestandards of this chapter are met and any applicable conditions of approval have been satisfied. Additional requirements fordevelopment apply within overlay districts.A. Neighborhood business district (B-1). The intent of the B-1 neighborhood business district is to provide forsmaller scale retail and service activities frequently required by neighborhood residents on a day to day basis, aswell as residential development as a secondary purpose, while still maintaining compatibility with adjacentresidential land uses. Design standards emphasizing pedestrian oriented design are important elements of thisdistrict. Use of this zone is appropriate for areas functioning as a center for surrounding residentialneighborhoods.
B. Community business district (B-2). The intent of the B-2 community business district is to provide for a broad rangesupportive retail and service functions located in clustered areas bordered on one or more sides by limited access cstreets. Multi-household dwellings, townhouses, and apartments are allowed as a secondary use due to their compnature and ability to enhance the walkability of these districts. Design standards emphasizing pedestrian oriented dimportant elements of this district. Use of this zone is appropriate for arterial corridors, commercial nodes, and/or <•served by transit.C. Community business district-mixed (B-2M). The intent of the B-2M community business district-mixed is tofunction as a vibrant mixed-use district that accommodates substantial growth and enhances the character ofthe city. This district provides for a range of commercial uses that serve both the immediate area and thebroader trade area and encourages the integration of multi-household residential as a secondary use. Designstandards emphasizing pedestrian oriented design are important elements of this district. Use of this zone isappropriate for arterial corridors, commercial nodes and/or areas served by transit.D. Downtown district (downtown B-3). The intent of the downtown B-3 business district is to provide a central areafor the community's business, government service and cultural activities with urban residential development asan essential supporting use. The downtown B-3 district should be the area of greatest density of development,intensity of use, and appropriate infill. Design standards reinforcing the area's historical pedestrian-orientedcontext are very important.This district encourages high volume, pedestrian-oriented uses in ground floor space in the "core area" of thecity's central business district, i.e., along Main Street from Grand to Rouse and to the alleys one-half block northand south from Main Street. Lower volume pedestrian uses such as professional offices may locate on groundfloor space in the downtown B-3 area outside the above-defined core.E. Urban mixed-use zoning district (UMU)Jhe intent and purposes of the UMU urban mixed-use district are toestablish areas within the city that are mixed-use in character, and to set forth certain minimum standards fordevelopment within those areas which encourage vertical mixed-use development with high density. Thepurpose in having an urban mixed-use district is to provide options for a variety of employment, retail andcommunity service opportunities within the community, with incorporated opportunity for some residential uses,while providing predictability in uses and standards to landowners and residents. There is a rebuttablepresumption that the uses set forth for each district will be compatible both within the individual districts andwith adjoining zoning districts when the standards of this chapter are met and any applicable conditions ofapproval have been satisfied. Additional requirements for development apply within overlay districts.1. It is the further the intent of this district to:a. Allow complementary land uses which encourage mixed uses on individual floors including, but notlimited to, retail, offices, commercial services, restaurants, bars, hotels, recreation and civic uses, andhousing, to create economic and social vitality and to encourage the linking of trips;b. Foster the development of vertically oriented mixed uses, in contrast to single use developmentdistributed along high vehicle capacity roadways;c. Encourage development that exhibits the physical design characteristics of vibrant, urban, pedestrian-oriented, storefront-style shopping streets with pedestrian amenities;d. Provide roadway and pedestrian connections to residential areas;e. Provide appropriate locations and design standards for automobile and truck-dependent uses;f. Create central urban gathering places such as community squares or plazas;g. Allow for urban oriented recreational activities consistent with the standards and intent of the district;and
h. To encourage and support the use of sustainable building practices.2. To accomplish the intent of the district, the UMU district should ideally be located at the intersections ofmajor traffic corridors; that is, at the intersections of two arterials, or, less frequently, an arterial and acollector street. The major intersections should have or be planned to have a stop light or other active trafficcontrol. While placement at major intersections is a necessary precondition, not all major intersectionsshould have the UMU district adjacent to them. Additionally, placement of this district should be adjacent ornear to dense residential development to enhance walking and bicycle use.F. Residential emphasis mixed-use zoning district (REMU). The intent and purpose of the REMU district is toestablish areas within Bozeman that are mixed-use in character and to provide options for a variety of housing,employment, retail and neighborhood service opportunities within a new or existing neighborhood. Thesepurposes are accomplished by:1. Emphasizing residential as the primary use, including single household dwellings, two to four householddwellings, townhouses, and apartments.2. Providing for a diverse array of neighborhood-scaled commercial and civic uses supporting residential.3. Emphasizing a vertical and horizontal mix of uses in a compact and walkable neighborhood setting.4. Promoting neighborhoods that:a. Create self-sustaining neighborhoods that will lay the foundation for healthy lifestyles;b. Support compact, walkable developments that promote balanced transportation options;c. Have residential as the majority use with a range of densities;d. Provide for a diverse array of commercial and civic uses supporting residential;e. Have residential and commercial uses mixed vertically and/or horizontally;f. Locate commercial uses within walking distance;g. Incorporate a wider range of housing types; andh. Encourage developments that exhibit the physical design characteristics of vibrant, urban,andpedestrian-oriented complete streets.5. Providing standards and guidelines that emphasize a sense of place:a. Support or add to an existing neighborhood context;b. Enhance an existing neighborhood's sense of place and strive to make it more self-sustainable;c. Encourage a new neighborhood commercial center(s) with a unique identity and strong sense of place;d. Develop commercial and mixed-use areas that are safe, comfortable, and attractive to pedestrians; ande. Reinforce the principle of streets as public places that encourage pedestrian and bicycle travel, transit,on-street parking and physical elements of complete streets.6. Providing standards and guidelines that emphasize natural amenities:a. Preserve and integrate the natural amenities into the development; andb. Appropriately balance a hierarchy of both parks and public spaces that are within the neighborhood.7. Providing standards and guidelines that emphasize the development of centers:a. Group uses of property to create vibrant centers;b. Where appropriate create a center within an existing neighborhood;c. Facilitate proven, market driven projects to ensure both long and short-term financial viability;d. Allow an appropriate blend of complementary mixed land uses including, but not limited to, retail, offices,commercial services, restaurants, bars, hotels, recreation and civic uses, and housing, to create economic
and social vitality;e. Foster the master plan development into a mix of feasible, market driven uses;f. Emphasize the need to serve the adjacent, local neighborhood and as well as the greater Bozeman area;andg. Maximize land use efficiency by encouraging shared use parking.8. Promoting the integration of action:a. Support existing infrastructure that is within and adjacent to REMU zones;b. Encourage thoughtfully developed master planned communities;c. Provide flexibility in the placement and design of new developments and redevelopment to anticipatechanges in the marketplace;d. Provide flexibility in phasing to help ensure both long and short term financial viability for the project as awhole;9. Providing standards and guidelines that promote sustainable designUse of this zone is appropriate for sites at least five acres in size and areas located adjacent to an existing orplanned residential area to help sustain commercial uses within walking distance and a wider range of housingtypes.G. Northeast historic mixed-use district—intent and purpose.1. The intent of the northeast historic mixed-use district is to provide recognition of an area that has developedwith a blend of uses not commonly seen under typical zoning requirements. The unique qualities and natureof the area are not found elsewhere in the city and should be preserved as a place offering additionalopportunities for creative integration of land uses. The intent of this area is to allow private and case-by-casedetermination of the most appropriate use of land in a broad range of both non-residential and residentialuses. Standards for buffering between different land uses are deliberately not as high as standardselsewhere in the community as it is assumed that persons choosing to locate in this area are aware of thevariety of possible adjacent land uses and have accepted such possibilities as both acceptable and desirable.It is expected that the lots within this district will continue to develop under a variety of uses which mayincrease or decrease in scope in any given portion of the district.2. The clear intent of this district is to support a mix and variety of non-residential and residential uses. Nothingin division 38.300 of this article shall be interpreted to be discouraging or prejudicial to any listed use exceptas set forth as principal and conditional uses.Sec. 38.300.120. - Industrial zoning districts—Intent and purpose.The intent and purpose of the industrial zoning districts is to establish areas within the city that are primarily industrial incharacter and to set forth certain minimum standards for development within those areas. The purpose in having more thanone industrial district is to provide opportunities for a variety of employment and community service functions within thecommunity while providing predictability. There is a rebuttable presumption that the uses set forth for each district will becompatible with each other when the standards of this chapter are met and any applicable conditions of approval have beensatisfied. Additional requirements for development apply within overlay districts.A. Light manufacturing district (M-1). The intent of the M-1 light manufacturing district is to provide for thecommunity's needs for wholesale trade, storage and warehousing, trucking and transportation terminals, lightmanufacturing and similar activities. The district should be oriented to major transportation facilities yet
arranged to minimize adverse effects on residential development, therefore, some type of screening may benecessary.B. Manufacturing and industrial district (M-2). The intent of the M-2 manufacturing and industrial district is toprovide for heavy manufacturing and industrial uses, servicing vocational and employment needs of cityresidents.C. Business park district (B-P). The intent of the B-P business park district is to provide for high quality settings andfacilities for the development of a variety of compatible employment opportunities. These areas should bedeveloped so as to recognize the impact on surrounding or adjacent development and contribute to the overallimage of the community. Compatibility with adjacent land uses and zoning is required.Sec. 38.300.130. - Public lands and institutions district—Intent.The intent of the PLI public lands and institutions district is to provide for major public and quasi-public uses outside ofother districts. Not all public and quasi-public uses need to be classified PLI. Some may fit within another district; however,larger areas will be designated PLI.DIVISION 38.310. - PERMITTED USESSec. 38.310.010. - Interpretation of land use tables.A. Uses in the various districts are depicted in Tables 38.310.030—38.31 0.040. Principal uses are indicated with a "P,"conditional uses are indicated with a "C," special uses are indicated with a "S", accessory uses are indicated with an"A" and uses which are not permitted within the district are indicated by a "-."B. Additional uses for wireless facilities are contained in sections 38.370.010 to 38.370.040.C. The uses listed are deliberately broad and some are given special definitions in article 7 of this chapter. The intent ofthis method is to provide general guidance for uses while allowing the unique needs and circumstances of eachproposal to be specifically addressed through the review process. Some uses are the subject of special regulationscontained in division 38.360 of this article.D. Clarification of permitted uses and special conditions:1. If a * appears after the use, then the use is defined in article 7.2. Where a code section is referenced after the use, then the use is subject to the additional standards in that codesection.3. If a number appears in the box, then the use may be allowed subject to development condition(s) described inthe footnotes immediately following the table. If there are multiple numbers, then the use is subject to allapplicable development conditions.4. Where a number with a "sf" reference appears below a P or C in the box, it means that the use is permitted orconditionally permitted up to the (maximum) listed square footage in gross building area.5. If more than one letter-number combination appears in the box (e.g., P 2'3), the use is allowed in the zonesubject to different sets of limitations or conditions depending on the review process indicated by the letter, thegeneral requirements of the code and the specific conditions indicated in the development condition with thecorresponding number immediately following the table.Sec. 38.310.020. - Classification of uses; community development director and city commission authority.A. When a use is not clearly defined or otherwise identified in the code so that it may be determined if it is allowed
within a district the community development director must determine the appropriate classification of a particularuse. In making this determination, the community development director must find:1. That the use is the same as one or more uses permitted in the district wherein it is proposed to be located; or2. That the use is so similar to one or more uses permitted in the district wherein it is proposed to be located as tobe interpreted as the same, so long as:a. The use and its operation are comparable with the uses permitted in the district wherein the use is proposedto be located, in terms of:i. The amount, type, and pattern of vehicular traffic anticipated for the use,andii. The expected outdoor uses and activities associated with the use;b. The use will not cause substantial injury to values of property in the neighborhood or district wherein it isproposed to be located; andc. Neither the intent of this chapter nor the intent of the district will be abrogated by such classification.Persons objecting to a decision of the community development director regarding a classification of a use carry theburden of proof to establish error in the decision.B. If a question arises concerning the appropriate classification of a particular use, the community developmentdirector may submit the question to the city commission to determine whether the particular use is the same or sosimilar as to be interpreted the same as a listed permitted or conditional use. In making such a determination, thecity commission must find that the criteria set forth in either subsection A.1 or 2 of this section are met.C. If a specific use is not listed and cannot be interpreted to be the same, or so similar as to be interpreted the same, asa listed accessory, principal or conditional use, the use must not be allowed. However, an amendment to the text ofthis chapter may be submitted for review and approval pursuant to the requirements of this chapter to allow suchuse as a listed principal, conditional or accessory use (as defined in section 38.700.020).Sec. 38.310.030. - Authorized uses—Residential zoning districts.Table 38.310.030.APermitted general and group residential uses in residential zoning districtsTable clarifications:1. Uses: P = Principal uses; C = Conditional uses; S = Special uses; A = Accessory uses; — = Uses which are notpermitted.2. If a * appears after the use, then the use is defined in article 7.3. Where a code section is referenced after the use, then the use is subject to the additional standards specificto the subject use in that code section.4. If a number appears in the box, then the use may be allowed subject to development condition(s) describedin the footnotes immediately following the table.UsesZoning DistrictsR-SR-1R-2R-3R-01 I RMHR-4R-5-_1