HomeMy WebLinkAbout03-08-22 City Commission Meeting Agenda and Packet MaterialsA.Call to Order - 6:00 PM - Via WebEx Video Conference
B.Pledge of Allegiance and a Moment of Silence
C.Changes to the Agenda
D.FYI
E.Commission Disclosures
F.Consent
F.1 Accounts Payable Claims Review and Approval (Stewart)
F.2 Formal Cancellation of the March 15, 2022 Regular City Commission Meeting (Maas)
THE CITY COMMISSION OF BOZEMAN, MONTANA
REGULAR MEETING AGENDA
Tuesday, March 8, 2022
This meeting will be held using Webex, an online videoconferencing system. You can join this meeting:
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Click Join Now to enter the meeting.
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Access code: 2555 857 8709
If you are interested in commenting in writing on items on the agenda please send an email to
agenda@bozeman.net prior to 12:00pm on the day of the meeting. You may also comment by visiting
the Commission's comment page.
You can also comment by joining the Webex meeting. If you do join the Webex meeting, we ask you
please be patient in helping us work through this online meeting.
If you are not able to join the Webex meeting and would like to provide oral comment you may send a
request to agenda@bozeman.net with your phone number, the item(s) you wish to comment on, and
the City Clerk will call you during the meeting to provide comment.
You may also send the above information via text to 406-224-3967. As always, the meeting will be
streamed through the Commission's video page and available in the City on cable channel 190.
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F.3 Authorize the City Manager to Sign an Irrevocable Offer of Dedication with Montana State
University for MSU Innovation Campus (21304)(Paz-Solis)
F.4 Authorize the City Manager to Sign a Release and Reconveyance of Easements and Storm
Water and Access Easement and Public Utility Easement and Access Drive Maintenance and
Repair Located in City of Bozeman Street – North of Nelson Meadows Subdivision with
Stella Fria, LLC for the Bronken Warehouse Project (21389)(Shultz)
F.5 Authorize the City Manager to Sign Public Roadway Easements with BNSF Railway Co. for
Griffin Drive(Lonsdale)
F.6 Authorize the City Manager to Sign Task Order #EDD21-005 with Sanderson Stewart related
to the construction of Rouse Ave Lot Occupancy Counter and Solar Panel
Installation(Veselik)
F.7 Ratify the Signature of the City Manager on an Agreement for Professional Employment
Services with GOVTEMPSUSA, LLC(Tozer)
F.8 Resolution 5374, Intent to Vacate and Abandon a Portion of Red Wing Drive Entirely within
Railroad Right of Way Adjacent to Frontage Road, Gallatin County, Montana.(Lonsdale)
G.Public Comment
This is the time to comment on any matter falling within the scope of the Bozeman City
Commission. There will also be time in conjunction with each agenda item for public comment
relating to that item but you may only speak once. Please note, the City Commission cannot take
action on any item which does not appear on the agenda. All persons addressing the City
Commission shall speak in a civil and courteous manner and members of the audience shall be
respectful of others. Please state your name and address in an audible tone of voice for the record
and limit your comments to three minutes.
H.Action Items
H.1 Appeal #22005 Regarding the Conditional Approval of the North Central Master Site Plan,
Application 21029, and North Central Block 4 Site Plan, Application 21165.(Bentley)
H.2 Bennett Annexation and Zone Map Amendment for the Establishment of a Zoning
Designation of REMU for a property Addressed at 5532 Stucky Road (Readdressed to 2650
and 2680 Bennett Blvd) and generally located approximately one-half mile west of South
19th Avenue on the south side of Stucky Road; Application 21331.(Rogers)
H.3 Ordinance 2100, Recognizing and Designating June 19th as Juneteenth National Freedom
Day, Designating June 19th as the Local Juneteenth Holiday, Replacing the Term Columbus
Day with Indigenous Peoples' Day, and Designating the Friday after Thanksgiving as the
Local Indigenous Peoples' Day  Holiday(Giuttari)
I.FYI / Discussion
J.Adjournment
City Commission meetings are open to all members of the public. If you have a disability that requires
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assistance, please contact our ADA Coordinator, Mike Gray, at 582-3232 (TDD 582-2301).
Commission meetings are televised live on cable channel 190 and streamed live at www.bozeman.net.
City Commission meetings are re-aired on cable Channel 190 Wednesday night at 4 p.m., Thursday at
noon, Friday at 10 a.m. and Sunday at 2 p.m.
In order for the City Commission to receive all relevant public comment in time for this City
Commission meeting, please submit via www.bozeman.net or by emailing agenda@bozeman.net no
later than 12:00 PM on the day of the meeting. Public comment may be made in person at the
meeting as well.
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Memorandum
REPORT TO:City Commission
FROM:Levi Stewart, Accounts Payable Clerk
Aaron Funk, Controller
SUBJECT:Accounts Payable Claims Review and Approval
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Finance
RECOMMENDATION:The City Commission approves payment of the claims.
STRATEGIC PLAN:7.5. Funding and Delivery of City Services: Use equitable and sustainable
sources of funding for appropriate City services, and deliver them in a lean
and efficient manner.
BACKGROUND:Section 7-6-4301 MCA states that claims should not be paid by the City until
they have been first presented to the City Commission. Claims presented to
the City Commission have been reviewed by the Finance Department to
ensure that all proper supporting documentation has been submitted, all
required departmental authorized signatures are present indicating that the
goods or services have been received and that the expenditure is within
budget, and that the account coding is correct.
UNRESOLVED ISSUES:None
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:The total amount of the claims to be paid is presented at the bottom of the
Expenditure Approval List posted on the City’s website at
http://www.bozeman.net/government/finance/purchasing. Individual claims
in excess of $100,000: to be announced in weekly e-mail from Accounts
Payable clerks Nadine Waters and Levi Stewart.
Report compiled on: February 25, 2022
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Memorandum
REPORT TO:City Commission
FROM:Mike Maas, City Clerk
SUBJECT:Formal Cancellation of the March 15, 2022 Regular City Commission Meeting
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Administration
RECOMMENDATION:Approve cancelling the regular City Commission meeting on March 15, 2022.
STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver
information to the community and our partners.
BACKGROUND:The Mayor has decided not to meet on March 15, 2022. Per Bozeman
Municipal Code Sec. 2.02.070.A.4, the Mayor or majority of the Commission
may cancel a regular meeting if not business is scheduled for that meeting.
This item formalizes this decision to cancel the meeting.
UNRESOLVED ISSUES:None
ALTERNATIVES:As determined by the City Commission.
FISCAL EFFECTS:None.
Report compiled on: February 16, 2022
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Memorandum
REPORT TO:City Commission
FROM:Alicia Paz-Solis, Engineer I
Lance Lehigh, Interim City Engineer
SUBJECT:Authorize the City Manager to Sign an Irrevocable Offer of Dedication with
Montana State University for MSU Innovation Campus (21304)
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Agreement - Property
RECOMMENDATION:Authorize the City Manager to sign an Irrevocable Offer of Dedication with
Montana State University for MSU Innovation Campus (21304).
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:Attached are copies (original to City Clerk) of the partially executed
agreements. Engineering staff reviewed the documents and found them to
be acceptable.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:None.
Attachments:
Conditional Irrevocable Offer of Dedication
Report compiled on: February 24, 2022
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Memorandum
REPORT TO:City Commission
FROM:Mikaela Shultz, Engineer I
Lance Lehigh, Interim City Engineer
SUBJECT:Authorize the City Manager to Sign a Release and Reconveyance of
Easements and Storm Water and Access Easement and Public Utility
Easement and Access Drive Maintenance and Repair Located in City of
Bozeman Street – North of Nelson Meadows Subdivision with Stella Fria, LLC
for the Bronken Warehouse Project (21389)
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Agreement - Property
RECOMMENDATION:Authorize the City Manager to Sign a Release and Reconveyance of
Easements and Storm Water and Access Easement and Public Utility
Easement and Access Drive Maintenance and Repair Located in City of
Bozeman Street – North of Nelson Meadows Subdivision with Stella Fria LLC
for the Bronken Warehouse Project (21389).
STRATEGIC PLAN:4.3 Strategic Infrastructure Choices: Prioritize long-term investment and
maintenance for existing and new infrastructure.
BACKGROUND:Attached are copies (original to City Clerk) of the partially executed
agreements. Engineering staff reviewed the documents and found them to
be acceptable.
UNRESOLVED ISSUES:None.
ALTERNATIVES:As suggested by the City Commission.
FISCAL EFFECTS:None.
Attachments:
Public Utility Easement
Release and Reconveyance of Easement
Storm water and Access Easement.
Access Drive Maintenance and Repair Located in City of
Bozeman Street
Report compiled on: February 24, 2022
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Memorandum
REPORT TO:City Commission
FROM:Taylor Lonsdale, Transportation Engineer
Lance Lehigh, Interim City Engineer
SUBJECT:Authorize the City Manager to Sign Public Roadway Easements with BNSF
Railway Co. for Griffin Drive
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Agreement - Legal
RECOMMENDATION:Authorize the City Manager to Sign Public Roadway Easements with BNSF
Railway Co. for Griffin Drive.
STRATEGIC PLAN:4.5 Housing and Transportation Choices: Vigorously encourage, through a
wide variety of actions, the development of sustainable and lasting housing
options for underserved individuals and families and improve mobility
options that accommodate all travel modes.
BACKGROUND:The Griffin Drive and Manley Road Street and Stormwater Improvement
project includes a reconstruction of the Griffin Drive railroad crossing. Griffin
Drive is being reconstructed to include a center turn lane, curb and gutter
and a shared use path on both sides of Griffin Drive. The project also
improves the railroad crossing with upgraded railroad signals and gates,
including added gates for the shared use path, and interconnection with the
traffic signal that will installed at the Manley Road intersection. These public
roadway easements are for the additional area needed for these
improvements.
UNRESOLVED ISSUES:None.
ALTERNATIVES:None identified or recommended.
FISCAL EFFECTS:None.
Attachments:
20220114_BNSF easements.pdf
Report compiled on: February 24, 2022
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Memorandum
REPORT TO:City Commission
FROM:Veselik
SUBJECT:Authorize the City Manager to Sign Task Order #EDD21-005 with Sanderson
Stewart related to the construction of Rouse Ave Lot Occupancy Counter and
Solar Panel Installation
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Authorize the City Manager to Sign Task Order #EDD21-005 with Sanderson
Stewart related to the construction of Rouse Ave Lot Occupancy Counter and
Solar Panel Installation.
STRATEGIC PLAN:4.4 Vibrant Downtown, Districts & Centers: Promote a healthy, vibrant
Downtown, Midtown, and other commercial districts and neighborhood
centers – including higher densities and intensification of use in these key
areas.
BACKGROUND:The City of Bozeman is working to install a pilot occupancy counter at the
Rouse Ave Lot. The counter installation requires engineering services to
ensure pole and solar placement meet with the City's development and
electrical code. Sanderson-Stewart is our engineering firm on term contract
for on-call services.
UNRESOLVED ISSUES:No Unresolved Issues
ALTERNATIVES:Alternatives as proposed
FISCAL EFFECTS:See attached task order
Attachments:
URD Task Order Form EDD21-005.docx
EDD21-005_SOW_Rouse_Solar_122221.pdf
Report compiled on: February 24, 2022
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City of Bozeman Urban Renewal District Term Contract
Task Order Number #EDD21-005
PROJECT:North Rouse Parking Lot Solar Panel
Issued under the authority of Urban Renewal District Term Contract Professional
Services Agreement with Sanderson Stewart for Architectural and Engineering
Services.
This Task Order is dated December 22, 2021 between the City of Bozeman Economic
Development Department and Sanderson Stewart (Contractor).
The following representatives have been designated for the work performed under this
Task Order:
City: David Fine, Urban Renewal Program Manager
Contractor: Danielle Scharf, Sanderson Stewart
SCOPE OF WORK:The scope for this task order is detailed in the attached City of
Bozeman Urban Renewal District Scope of Work – Task Order Number EDD21-005.
COMPENSATION:Sanderson Stewart will bill for its services on a lump sum basis with
a project total of $4,975.00. Sanderson Stewart shall submit invoices to the City of
Bozeman for work accomplished during each calendar month. The amount of each
monthly invoice shall be determined on the “percentage of completion method” whereby
Sanderson Stewart will estimate the percentage of the total work (provided on a lump
sum basis) accomplished during the invoicing period. The provisions of the Professional
Services Agreement shall govern the Work.
IN WITNESS WHEREOF, the parties authorized to commit resources of the parties
have executed this Task Order:
City of Bozeman Sanderson Stewart
Jeff Mihelich, City Manager Danielle Scharf, Principal
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Urban Renewal District Term Contract
Scope of Work – Task Order No. EDD21-005
North Rouse Parking Lot Solar Panel
12/22/21
Sanderson Stewart is pleased to provide this scope of work for permitting the proposed solar panel associated
with the Parking Logix parking management system recently installed in the public parking lot located near
the intersection of North Rouse Avenue and Babcock Street. This work is to be done as a part of the Urban
Renewal District term contract for architectural and engineering services.
A detailed list of assumptions and scope of services for the project are outlined below.
Scope of Work:
Phase 1 - Project Management
This phase of the project will include project initiation, scoping, contract preparation, and project
management throughout the project.
Phase 2 – Background Research and Design
This phase of the project will include a site visit to review the parking management system components and
take measurements so the base cadd file can be updated with the new information. A new plan sheet will be
developed to show the solar panel location and mounting details.
Phase 3 – Building Permit Application
A new building permit application will be prepared and submitted to the City of Bozeman. Sanderson
Stewart will coordinate with Parking Logix as needed for the electrical system details needed for the
application.
The following items are not expected to be needed for this project and are therefore specifically excluded
from this scope of work:
• Design services beyond the single plan sheet referenced above
• Construction administration, bidding and inspection services
• Construction staking
• Lighting and electrical design
• Stormwater calculations and report
• Stormwater Pollution Prevention Plan (SWPPP) permit
• Right-of-way coordination
If needed, these items will be added as a separate task order or contract amendment.
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Fees and Billing Arrangements:
Phase Fee
1. Project Management $1,530
2. Background Research and Design $2,040
3. Building Permit Application (Including Application Fees) $1,405
Total $4,975
Sanderson Stewart will bill for its services on a lump sum basis with a project total of $4,975. Sanderson
Stewart shall submit invoices to the Client for work accomplished during each calendar month. The amount
of each monthly invoice shall be determined on the “percentage of completion method” whereby Sanderson
Stewart will estimate the percentage of the total work (provided on a lump sum basis) accomplished during
the invoicing period.
Project Schedule:
The anticipated schedule for this project consists of the final design deliverable within 1 month of notice to
proceed.
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Memorandum
REPORT TO:City Commission
FROM:Cassandra Tozer, HR Director
SUBJECT:Ratify the Signature of the City Manager on an Agreement for Professional
Employment Services with GOVTEMPSUSA, LLC
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Agreement - Vendor/Contract
RECOMMENDATION:Ratify the Signature of the City Manager on an Agreement for Professional
Employment Services with GOVTEMPSUSA, LLC.
STRATEGIC PLAN:7.2 Employee Excellence: Recruit, retain and value a diverse, well-trained,
qualified and motivated team capable of delivering superior performance.
Be accountable and expect accountability from others. Make demonstrated
use of good judgement a part of the evaluation process for promotions.
BACKGROUND:The City's Finance Director resigned effective December 1, 2021 and one of
the City's Assistant City Managers has been serving as the Interim Finance
Director. That Assistant City Manager resigned effective March 1, 2022. We
have filled the position with an Interim Finance Director to assist the
department and the City while we undertake a nation-wide recruitment for a
permanent Finance Director. The Interim Director is an employee of
GOVTEMPS USA, LLC, an employment agency that provides executive-level
temporary employees for municipal agencies around the country. The
agreement covers a four-month period of February 28, 2021 through June
24, 2022 and can be extended beyond that time period, by mutual
agreement of the parties.
UNRESOLVED ISSUES:None.
ALTERNATIVES:Alternative included operating without an Interim Finance Director, which is
not recommended.
FISCAL EFFECTS:The total cost of the four-month agreement is $67,200 and will be paid out
of the Finance Department's budget.
Attachments:
GovTemps-Bozeman-InterimFinance (2-2022).pdf
Report compiled on: March 1, 2022
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Leasing Agreement / Rev. 8-2019
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AGREEMENT FOR PROFESSIONAL EMPLOYMENT SERVICES
THIS AGREEMENT FOR PROFESSIONAL EMPLOYMENT SERVICES (this
"Agreement") is made by GOVTEMPSUSA, LLC, an Illinois limited liability company
("GovTemps”), and the CITY OF BOZEMAN, MONTANA, a self-governing municipality of
the State of Montana operating pursuant to the laws of the State of Montana and its charter (the
"City"). GovTemps and the City can be individually identified as a ("Party") and collectively as
the ("Parties"). GovTemps and the City agree as follows:
SECTION 1
SCOPE OF AGREEMENT
Section 1.01. Assigned Employee. GovTemps will provide the City an
employee identified in attached Exhibit A of GovTemps to serve as the City’s Interim
Finance Director (the "Assigned Employee"). Exhibit A identifies the temporary
position and/or assignment (the "Assignment") the Assigned Employee will fill at the
City, and it further identifies the base compensation for the Assigned Employee, as of
the effective date of this Agreement. Exhibit A may be amended from time to time
by a replacement Exhibit A signed by both GovTemps and the Bozeman City
Manager. GovTemps, as the common law employer of Assigned Employee, has the
sole authority to assign and/or remove the Assigned Employee, provided however,
that the City may request, in writing, that GovTemps remove or reassign the Assigned
Employee. Any such request will not be unreasonably withheld by GovTemps. The
Parties understand and acknowledge that the Assigned Employee is subject to the
City’s day-to-day supervision.
Section 1.02. Independent Contractor. GovTemps is and remains an
independent contractor, and not an employee, agent, partner of, or joint venturer with,
the Client. GovTemps has no authority to bind the City to any commitment, contract,
agreement or other obligation without the City’s express written consent.
SECTION 2
SERVICES AND OBLIGATIONS OF GOVTEMPS AND CLIENT
Section 2.01. Payment of Wages. GovTemps will timely pay the wages and
related payroll taxes of the Assigned Employee from GovTemp’s own account in
accordance with federal and applicable state law and GovTemps’ standard payroll
practices. GovTemps will withhold from such wages all applicable taxes and other
deductions elected by the Assigned Employee. The City acknowledges that
GovTemps may engage a financial entity to maintain its financing and record keeping
services, which may include the payment of wages and related payroll taxes in
accordance with this Section 2.01. The City agrees to cooperate with any such
financial entity to ensure timely payment of wages, related payroll taxes, and any
applicable fees pursuant to this Section 2.01. As to Assigned Employees, GovTemps
will comply with the Immigration Reform and Control Act of 1986, Title VII of the
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Leasing Agreement / Rev. 8-2019
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Civil Rights Act of 1964, as amended, (Title VII), the Americans With Disabilities
Act of 1990 (ADA), the Age Discrimination in Employment Act (ADEA), the Equal
Pay Act of 1963, the Civil Rights Acts of 1866 and 1871 (42 U.S.C. § 1981), the
Family and Medical Leave Act of 1993, the Fair Labor Standards Act of 1938, the
National Labor Relations Act, the Employee Retirement Income Security Act
(“ERISA”) of 1974, and any other federal, state or local statute, state constitution,
ordinance, order, regulation, policy or decision regulating wages and the payment of
wages, prohibiting employment discrimination or otherwise establishing or relating to
rights of Assigned Employee.
Section 2.02. Workers’ Compensation. To the extent required by
applicable law, GovTemps will maintain in effect workers’ compensation coverage
covering its Assigned Employee’s work in an Assignment. Any applicable coverage
under this Agreement terminates on the Termination Date of this Agreement.
Section 2.03. Employee Benefits. GovTemps will provide to Assigned
Employee those employee benefits identified in the attached Exhibit B. GovTemps
may amend or terminate any of its employee benefit plans according to their terms.
All employee benefits, including severance benefits for Assigned Employee will be
included in Fees payable to GovTemps under Section 3.01 of this Agreement.
Section 2.04. Maintenance and Retention of Payroll and Benefit Records.
GovTemps will maintain records of all wages and benefits paid and personnel actions
taken by GovTemps in connection with any of the Assigned Employee(s). GovTemps
will retain control of such records and make them available for inspection as required
by applicable federal, state or local laws. Upon request by the City, GovTemps will
provide the City with all requested records.
Section 2.05. Other Obligations of GovTemps. GovTemps will comply
with any federal, state and local law applicable to its Assigned Employee(s).
GovTemps will comply with the requirements of the federal Patient Protection and
Affordable Care Act (ACA).
Section 2.06. Direction and Control. The Parties agree and acknowledge
that the City has the right of direction and control over the Assigned Employee,
including matters of discipline, excluding removal or reassignment, as provided for
by Section 1.01. The Assigned Employee(s) will be supervised, directly and
indirectly, and exclusively by the Client's supervisory and managerial employees.
Section 2.07. Obligations of the Client. Pursuant to this Agreement the City
covenants, agrees and acknowledges:
(a) The City will provide the Assigned Employee with a suitable workplace,
that complies with US Occupational Safety and Health Administration (“OSHA”) statutes
and regulations, and all other health and safety laws, regulations, ordinances, directives,
and rules applicable to the Assigned Employee and the Assigned Employee’s workplace.
The City agrees to comply, at its expense, with all health and safety directives from
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Leasing Agreement / Rev. 8-2019
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GovTemps’ internal and external loss control specialists, GovTemps’ workers’
compensation carrier, or any government agency having jurisdiction over the place of
work. The City will provide and ensure use of all functional personal protective
equipment as required by any federal, state or local law, regulation, ordinance, directive,
or rule or as deemed necessary by GovTemps’ workers’ compensation carrier.
GovTemps and/or its insurance carriers have the right to inspect the Client’s premises to
ensure that the Assigned Employee is not exposed to an unsafe workplace. GovTemps’
rights under this paragraph do not diminish or alter the Client’s obligations to the
Assigned Employee under applicable law, or its obligations to GovTemps under this
Agreement;
(b) With respect to the Assigned Employee, the City will comply with all
applicable labor and employment-related laws and regulations, and any other federal,
state or local statute, state constitution, ordinance, order, regulation, policy or decision,
prohibiting employment discrimination, or otherwise establishing or relating to the terms
and conditions of Assigned Employee’s Assignment;
(c) The City retains the right to exert sufficient direction and control over the
Assigned Employee as is necessary to conduct the Client's business and operations,
without which, the City would be unable to conduct its business, operation or to comply
with any applicable licensure, regulatory or statutory requirements.
(d) The City cannot remove or reassign the Assigned Employee unless
mutually agreed to in writing by GovTemps and the Client in accordance with Section
1.01 of this Agreement. City will timely confer with GovTemps regarding any concern
or complaint regarding Assigned Employee’s performance or conduct under this
Agreement;
(e) The City will not pay wages, salaries or other forms of direct or indirect
compensation, including employee benefits, to Assigned Employee. City represents that
its actions under this Agreement do not violate its obligations it may have under any
collective bargaining agreement;
(f) The City must report to GovTemps any injury to any Assigned Employee
of which it has knowledge within twenty-four (24) hours of acquiring such knowledge. If
any Assigned Employee is injured in the course of performing services for the Client, the
City must follow the procedures and practices regarding injury claims and reporting; and
(g) The City must report all on the job illnesses, accidents and injuries of the
Assigned Employee to GovTemps within twenty-four (24) hours following notification of
said injury by Assigned Employee or Assigned Employee’s representative.
SECTION 3
FEES PAYABLE TO GOVTEMPS
Section 3.01. Fees. The City will pay GovTemps fees for the services
provided under this Agreement as follows:
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Leasing Agreement / Rev. 8-2019
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(a) The base compensation as fully identified on Exhibit A, as amended; plus
(b) Any employee benefits GovTemps paid to the Assigned Employee as
identified on Exhibit B (if applicable), including, but not limited to, salary; wages;
commissions; bonuses; sick pay; workers’ compensation, health and other insurance
premiums; payroll, unemployment, FICA and other taxes; vacation pay; overtime pay;
severance pay; monthly automobile allowances, and any other compensation or benefits
payable under any applicable GovTemps pension and welfare benefit plan or federal,
state or local laws covering the Assigned Employee.
Section 3.02. Increase in Fees. GovTemps may increase fees to the
extent and equal to any mandated tax increases, e.g. FICA, FUTA, State
Unemployment taxes, when they become effective. GovTemps may also adjust
employer benefit contribution amounts by providing the City with a written thirty
(30) day notice, provided, such changes in employer benefit contribution amounts
apply broadly to all GovTemps employees.
Section 3.03. Payment Method. Every two (2) weeks during the term of this
Agreement, GovTemps will invoice in writing the City for the fees owed under this
Agreement. Within thirty (30) days following receipt of such invoice, the City must
pay all invoiced amounts by check, wire transfer or electronic funds transfer to
GovTemps to an account or lockbox as designated on the invoice. Late payments
will be subject to all applicable interest payments or service charges provided by state
or local law. In addition to charging interest or service charges provided by applicable
law, GovTemps may, upon written notice to Client, suspend performance of services
under this Agreement while any amount due is past due and remains unpaid.
SECTION 4
INSURANCE
Section 4.01. General and Professional Liability Insurance. The City
must maintain in full force and effect at all times during the term of this Agreement a
Comprehensive (or Commercial) General Liability and Professional Liability (if
applicable) insurance policy or policies (the "Policies"), with minimum coverage in
the amount of $1,000,000 per occurrence, $3,000,000 aggregate. In the alternative, as
applicable, the City may maintain in full force and effect at all times during the term
of this Agreement a self-insured retention (“SIR”) which provides the same minimum
coverage limits as set forth above. In the event such SIR exists and applies to this
Agreement, the City agrees to fully discuss the SIR’s parameters with GovTemps and
its relationship to the Policies. At a minimum, the Policies must insure against bodily
injury and property damage liability caused by on-premises business operations,
completed operations and/or products or professional service and non-owned
automobile coverage.
Section 4.02. Certificate of Insurance. Upon request, the City will
promptly issue to GovTemps one or more Certificates of Insurance, verifying the
Client’s compliance with the provisions of Section 4.01.
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Leasing Agreement / Rev. 8-2019
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Section 4.03. Automobile Liability Insurance. If the Assigned Employee
drives a Municipal or personal vehicle for any reason in connection with their
Assignment, the City must maintain in effect automobile liability insurance insuring
the Assigned Employee, GovTemps and the City against liability for bodily injury,
death and property damage.
SECTION 5
DURATION AND TERMINATION OF AGREEMENT
Section 5.01. Term and Effective Date. The Effective Date of this
Agreement is the date that this Agreement is signed by the City on the signature page
(the “Effective Date”). The period during which the Assigned Employee works at the
City is defined as the (“Term”). The Term commences on the Effective Date and will
continue for the period identified on the attached Exhibit A, or until it is terminated in
accordance with the remaining provisions of this Section 5. For the purposes of this
Agreement, the date on which this Agreement expires and/or is terminated is the
("Termination Date").
Section 5.02. Termination of Agreement for Failure to Pay Fees. If the
City fails to timely pay the fees required under this Agreement, GovTemps may give
the City notice of its intent to terminate this Agreement for such failure and if such
failure is remedied within ten (10) days, the notice will be of no further effect. If
such failure is not remedied within the ten (10) day period, GovTemps has the right to
terminate the Agreement upon expiration of such remedy period.
Section 5.03. Termination of Agreement for Material Breach. If either
Party materially breaches this Agreement, the non-breaching Party must give the
breaching Party written notice of its intent to terminate this Agreement for such
breach and if such breach is remedied within ten (10) days, the notice will be of no
further effect. If such breach is not remedied within the ten (10) day period, the
non-breaching Party has the right to immediately terminate the Agreement upon
expiration of such remedy period.
Section 5.04. Termination of Agreement to execute Temp-to Hire Option.
At the end of the Term, the City may hire the Assigned Employee as a permanent or
temporary employee of the Client. The substantial investment of time and resources
by GovTemps under this Agreement to place its leased employee with City is
recognized by Client. If after the end of the Term, City hires Assigned Employee as
either a permanent or temporary employee it must pay two (2) weeks of the Assigned
Employee’s gross salary to GovTemps no later than thirty (30) days after the date the
Assigned Employee becomes the Client’s employee.
SECTION 6
NON-SOLICITATION
Section 6.01. Non-Solicitation. The City acknowledges GovTemps’
legitimate interest in protecting its business for a reasonable time following the
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termination of this Agreement. Accordingly, to the extent permitted by federal, state
and local law, the City agrees that during the Term of this Agreement and for a period
of two (2) years thereafter, the City will not solicit, request, entice or induce
Assigned Employee to terminate their employment with GovTemps, and the City
will not hire Assigned Employee as a permanent or temporary employee. If a Temp-
to-Hire option provided for in Section 5.04 is properly exercised by the Client, then
this Section 6.01 will not apply.
Section 6.02. Injunctive Relief. The City recognizes that the rights and
privileges granted by this Agreement are of a special, unique, and extraordinary
character, the loss of which cannot reasonably or adequately be compensated for in
damages in any action at law. Accordingly, the City understands and agrees that
GovTemps is entitled to equitable relief, including a temporary restraining order and
preliminary and permanent injunctive relief, to prevent or enjoin a breach of Section
6.01 of this Agreement. The City also understands and agrees that any such equitable
relief is in addition to, and not in substitution for, any other relief to which GovTemps
can recover.
Section 6.03. Survival. The provisions of Section 6 survive the expiration or
termination of this Agreement.
SECTION 7
DISCLOSURE AND INDEMNIFICATION PROVISIONS
Section 7.01. Indemnification by GovTemps. GovTemps agrees to
indemnify, defend and hold the City and its related entities or their agents,
representatives or employees (the "City Parties") harmless from and against all
claims, liabilities, damages, costs and expenses ("Losses") (a) arising out of
GovTemps’ breach of its obligations under this Agreement, (b) related to the actions
or conduct of GovTemps and its related business entities, their agents,
representatives, and employees (the "GovTemps Parties"), taken or not taken with
respect to the Assigned Employees that relate to events or incidents occurring prior or
subsequent to the term of this Agreement, and (c) arising from any act or omission on
the part of GovTemps or any of the GovTemps Parties.
Section 7.02. Indemnification by the City. The City agrees to indemnify,
defend and hold the GovTemps Parties harmless from and against all Losses (a)
arising out of the City’s breach of its obligations under this Agreement, (b) relating to
any activities or conditions associated with the Assignment, and (c) arising from any
act or omission on the part of the City or any of the Client Parties.
Section 7.03. Indemnification Procedures. The Party seeking indemnity
(the "Indemnified Party") from the other Party (the "Indemnifying Party") pursuant to
this Section 7, must give the Indemnifying Party prompt notice of any such claim,
allow the Indemnifying Party to control the defense or settlement of such claim and
cooperate with the Indemnifying Party in all matters related thereto. However, prior
to the Indemnifying Party assuming such defense and upon the request of the
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Indemnified Party, the Indemnifying Party must demonstrate to the reasonable
satisfaction of the Indemnified Party that the Indemnifying Party (a) is able to fully
pay the reasonably anticipated indemnity amounts under this Section 7 and (b)
will take steps satisfactory to the Indemnified Party to ensure its continued ability to
pay such amounts. In the event the Indemnifying Party does not control the defense,
the Indemnified Party may defend against any such claim at the Indemnifying Party’s
cost and expense, and the Indemnifying Party must fully cooperate with the
Indemnified Party, at no charge to the Indemnified Party, in defending such potential
Loss, including, without limitation, using reasonable commercial efforts to keep the
relevant Assigned Employee available. In the event the Indemnifying Party controls
the defense, the Indemnified Party is entitled, at its own expense, to participate in, but
not control, such defense. The failure to promptly notify the Indemnifying Party of
any claim pursuant to this Section will not relieve such Indemnifying Party of any
indemnification obligation that it may have to the Indemnified Party, except to the
extent that the Indemnifying Party demonstrates that the defense of such action was
materially prejudiced by the Indemnified Party’s failure to timely give such notice.
Section 7.04. Survival of Indemnification Provisions. The provisions of
Section 7 survive the expiration or termination of this Agreement.
SECTION 8
MISCELLANEOUS PROVISIONS
Section 8.01. Amendments. This Agreement may be amended at any time
and from time to time, but any amendment must be in writing and signed by all the
Parties to this Agreement, except for changes to the fees provided for in Section 3.
Section 8.02. Binding Effect. This Agreement inures to the benefit of and
binds the Parties and their respective heirs, successors, representatives and assigns.
Neither Party may assign its rights or delegate its duties under this Agreement
without the express written consent of the other Party, which consent will not be
unreasonably withheld.
Section 8.03. Counterpart Execution. This Agreement may be executed
and delivered in any number of counterparts, each of which will be an original, but all
of which together constitutes one and the same instrument. This Agreement may be
executed and delivered via facsimile or electronic mail.
Section 8.04. Entire Agreement. This Agreement constitutes the entire
agreement between the Parties regarding GovTemps’ placement of the Assigned
Employee with the City , and contains all of the terms, conditions, covenants,
stipulations, understandings and provisions agreed upon by the Parties. This
Agreement supersedes and takes precedence over all proposals, memorandum
agreements, tentative agreements, and oral agreements between the Parties, made
prior to and including the Effective Date of this Agreement not specifically identified
and incorporated in writing into this Agreement. No agent or representative of either
Party has the authority to make, and the Parties will not be bound by or liable for, any
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statement, representation, promise, or agreement not specifically set forth in this
Agreement.
Section 8.05. Further Assurances. The Parties will execute and deliver any
and all additional papers, documents, and other assurances and do any and all acts and
things reasonably necessary in connection with the performances of their obligations
under this Agreement.
Section 8.06. Gender. Whenever the context herein so requires, the
masculine, feminine or neuter gender and the singular and plural number include the
other.
Section 8.07. Section Headings. Section and other headings contained in
this Agreement are for reference purposes only and do not affect in any way the
meaning or interpretation of this Agreement.
Section 8.08. Severability. If any part or condition of this Agreement is held
to be void, invalid or inoperative, such shall not affect any other provision hereof,
which will continue to be effective as though such void, invalid or inoperative part,
clause or condition had not been made.
Section 8.09. Waiver of Provisions. The failure by one Party to require
performance by the other Party shall not be deemed to be a waiver of any such
breach, nor of any subsequent breach by the other Party of any provision of this
Agreement. Such waiver shall not affect the validity of this Agreement, nor prejudice
either Party’s rights in connection with any subsequent action. Any provision of this
Agreement may be waived if, but only if, such waiver is in writing signed by the
Party against whom the waiver is to be effective.
Section 8.10. Confidentiality. Except as may be required by law, each Party
will protect the confidentiality of the other’s records and information and must not
disclose confidential information without the prior written consent of the other Party.
Each Party must reasonably cooperate with the other Party regarding any Freedom of
Information Act (FOIA) request calling for production of documents related to this
Agreement.
Section 8.11. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Montana applicable to contracts
made and to be performed entirely within such state, except the law of conflicts.
Section 8.12. Force Majeure. GovTemps will not be responsible for failure
or delay in assigning its Assigned Employee to City if the failure or delay is caused
by labor disputes and strikes, fire, riot, terrorism, acts of nature or of God, or any
other causes beyond the control of GovTemps.
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SECTION 9
DISPUTE RESOLUTION
Section 9.01. Good Faith Attempt to Settle. The Parties will attempt to
settle any dispute arising out of or relating to this Agreement, or the breach thereof,
through good faith negotiation between the Parties.
Section 9.02. Governing Law/Jurisdiction. If a dispute cannot be settled
through good faith negotiation within thirty (30) days after the initial receipt by the
allegedly offending party of written notice of the dispute, then the controversy or
claim may be adjudicated by a federal or state court of competent jurisdiction and
venue. This Agreement and any amendments hereto will be governed by and
construed in accordance with the laws of the State of Montana.
Section 9.03. Attorneys' Fees. The Parties agree that, in the event of
litigation under this Agreement, each Party is liable for only those attorneys’ fees and
costs incurred by that Party.
SECTION 10
NOTICES
Section 10.01. Notices. All Notices given under this Agreement must be
written and may be given by personal delivery, first class U.S. Mail, registered or
certified mail return receipt requested, overnight delivery service, or electronic mail.
Notices will be deemed received at the earlier of actual receipt or three (3) days from mailing date. Notices must be sent to the Parties at their respective addresses shown below. A Party may change its address for notice by giving written notice to the other Party.
If to GovTemps: GOVTEMPSUSA, LLC
630 Dundee Road Suite 225
Northbrook, Illinois 60062
Attention: Michael J. Earl
Telephone: 224-261-8366
Electronic Mail: mearl@govhrusa.com
If to the Client: CITY OF BOZEMAN
121 N Rouse Avenue
Bozeman, Montana 59771
Attention: Cassandra Tozer
Telephone: 406-582-2346
Electronic Mail: ctozer@bozeman.net
[Signatures on following page]
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Leasing Agreement / Rev. 8-2019
[Signature Page to Employee Leasing Agreement]
IN WITNESS WHEREOF, the Parties executed this Agreement on the Effective Date,
which is the date this Agreement is last signed by GovTemps.
GOVTEMPSUSA, LLC,
an Illinois limited liability company
By
Name: Joellen J. Cademartori
Title: President and Co-Owner
Effective Date: February 28, 2022
CITY OF BOZEMAN
By
Name:
Title:
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Jeff Mihelich
City Manager
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Leasing Agreement / Rev. 8-2019
Exhibit A-1
EXHIBIT A
Assigned Employee and Base Compensation
ASSIGNED EMPLOYEE: Rachel Harlow-Schalk
POSITION/ASSIGNMENT: Interim Finance Director
POSITION TERM: February 28, 2022 – June 24, 2022
Unless either party provides two weeks advance written notice, the agreement will automatically
be extended on a bi-weekly basis up to October 28, 2022.
Either party may terminate the agreement at any time by providing 30 days advance written
notice.
BASE COMPENSATION: The City will be invoiced biweekly (every two weeks) in the
amount of $8,400 ($4,200 per week based on a 40-hour work week at the rate of $105/hour). It
is understood that base compensation will include pay for City approved holidays and
intermittent sick leave. Specific hours of work per week will be determined between the City
and the Assigned Employee. Deviations from the preceding (such as vacation leave and extended
sick leave) may be reported by the City via email to payroll@govtempsusa.com via a timesheet
by the close of business on the Monday after the prior work week.
GOVTEMPSUSA, LLC: CITY:
By: By:
Date: Date:
This Exhibit A fully replaces all Exhibits A dated prior to the Effective Date of this Agreement.
February 24, 2022
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2/24/2022
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Leasing Agreement / Rev. 8-2019
Exhibit B-1
EXHIBIT B
Summary of Benefits
LODGING EXPENSE: The City will directly reimburse employee for any temporary lodging
related expenses. The employee will submit an expense report to the City with proper receipts on
a monthly basis.
TRAVEL EXPENSE REIMBURSEMENT. The City will directly reimburse employee for
expenses related to travel from employee’s primary residence to City offices. Reimbursement
will be at the current IRS rate. The employee will submit an expense report to the City with
proper justification on a monthly basis.
ADDENDUM
Nondiscrimination and Equal Pay. GovTemps agrees that all hiring by GovTemps of persons
performing this Agreement for Professional Employment Services shall be on the basis of merit
and qualifications. GovTemps will have a policy to provide equal employment opportunity in
accordance with all applicable state and federal anti-discrimination laws, regulations, and
contracts. GovTemps will not refuse employment to a person, bar a person from employment, or
discriminate against a person in compensation or in a term, condition, or privilege of
employment because of race, color, religion, creed, political ideas, sex, age, marital status,
national origin, actual or perceived sexual orientation, gender identity, physical or mental
disability, except when the reasonable demands of the position require an age, physical or mental
disability, marital status or sex distinction.
GovTemps represents it is, and for the term of this Agreement will be, in compliance with the
requirements of the Equal Pay Act of 1963 and Section 39-3-104, MCA (the Montana Equal Pay
Act). GovTemps must report to the City any violations of the Montana Equal Pay Act
that GovTemps has been found guilty of within 60 days of such finding for violations occurring
during the term of this Agreement.
GovTemps shall require these nondiscrimination terms of its subcontractors providing services
under this Agreement for Professional Employment Services.
GOVTEMPSUSA, LLC: CITY:
By: By:
Date: Date:
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2/24/2022
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Leasing Agreement / Rev. 8-2019
Exhibit B-2
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Memorandum
REPORT TO:City Commission
FROM:Taylor Lonsdale, Transportation Engineer
SUBJECT:Resolution 5374, Intent to Vacate and Abandon a Portion of Red Wing Drive
Entirely within Railroad Right of Way Adjacent to Frontage Road, Gallatin
County, Montana.
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Resolution
RECOMMENDATION:Resolution 5374, Intent to Vacate and Abandon a Portion of Red Wing Drive
Entirely within Railroad Right of Way Adjacent to Frontage Road, Gallatin
County, Montana
STRATEGIC PLAN:1.3 Public Agencies Collaboration: Foster successful collaboration with other
public agencies and build on these successes.
BACKGROUND:The City of Bozeman received a petition to abandon the described portion of
Redwing Drive. The petition was accepted by the Commission at it's regular
meeting on February 1, 2022. The Engineering Division reviewed the
abandonment by the criteria set forth in Commission Resolution 3628. A
preliminary staff report is attached. The final staff report will be presented at
the public hearing for this abandonment which is scheduled for April 5, 2022
as detailed in Resolution 5374.
UNRESOLVED ISSUES:None.
ALTERNATIVES:None recommended.
FISCAL EFFECTS:None.
Attachments:
20220308_Prelim Staff Report.pdf
Resolution 5374 -Resolution of Intent.pdf
Exhibit A.pdf
Adjacent Property owners.pdf
Temporary Access Plan_Redwing Drive.pdf
NOTICE OF INTENT TO VACATE.pdf
Report compiled on: March 2, 2022
60
PRELIMINARY CITY ENGINEERING STAFF REPORT
Proposed discontinuance, abandonment and vacation of the portion of Redwing
Drive located in the Southwest quarter Southwest quarter (SW¼ SW¼) of Section
twenty-five (25), North half Northwest quarter (N½ NW¼), Southeast quarter
Northwest quarter (SE¼ NW¼), Southwest quarter Northeast quarter (SW¼ NE¼)
and Northwest quarter Southeast quarter (NW¼ SE¼) of Section thirty-six (36),
Township one (1) South, Range five (5) East, Montana Principal Meridian, Bozeman,
Montana and entirely contained within the railroad right of way and illustrated in
Exhibit A.
Background
The City of Bozeman received a petition to abandon the described portion of
Redwing Drive. The Engineering Division reviewed the abandonment by the criteria
set forth in Commission Resolution 3628. The petitioner is working to develop the
North Park Master Plan and is working with the railroad on rail improvements
within the railroad right of way in the location of Redwing Drive and is therefore
requesting that the City abandon this portion of Redwing Drive. Montana Rail Link
(MRL) and the Montana Department of Transportation support this abandonment
as it will eliminate an unsignalized at grade railroad crossing. Elimination of at
grade railroad crossings provides improved public safety. There is additional
support from adjacent residents for the elimination of this at grade crossing as it
will eliminate the need for train whistles.
Impact on Public and Private Utilities
The City of Bozeman has existing water and sewer facilities within the railroad right
of way. The City of Bozeman has separate permits with the railroad for these
facilities: (1) for a sanitary sewer main (Permit# 600015), and (2) for a water main
(permit# 600167).
61
These two permits provide for access to the pipelines on railroad property
regardless of whether Redwing Drive is abandoned as a public roadway easement.
Additionally, review of the City’s water and sewer master plans, no known
improvements are scheduled that would be effected by the proposed abandonment.
Several private utilities were identified in the existing railroad easement and within
the Redwing Drive easement. Abandonment of Redwing Drive will not impact the
ability of these utilities to remain as in the railroad right of way as they have
separate agreements with the railroad.
Impact on Traffic & Accessibility
The easement to be abandoned exists entirely within the railroad right of way and
does not provide access or connectivity to any other property. There is no plan to
utilize this right-of-way for future improvements mentioned in our transportation
master plan. Abandonment of this portion of Redwing Drive will eliminate an un-
signalized railroad crossing.
Two private companies and the City currently use Redwing Drive to access sites
adjacent to Redwing Drive. The petitioner will provide new access to these sites. The
permanent access is detailed in the master site plan for the area. The petitioner will
also provide temporary access to these sites as detailed in the attached Temporary
Access Plan. This plan supersedes plan initially presented in the petition. Letters of
consent are included in the attached petition.
Impact on Fire, Police, and Other Emergency Services
No impact to these services were identified.
Impact on Garbage Collection and Maintenance
62
No impact to these services identified.
Alternatives to Vacation
None identified. As mentioned the approved site plan for the North Park
development creates new road connections that far better serve this area than the
current Redwing Drive.
Recommendation
Staff recommends abandonment of the easement as proposed. The abandonment
provides benefit to the City and the public reducing the risk posed by the
unimproved railroad crossing. It can be done without detriment to the public
interest and is the preferred alternative.
63
PRELIMINARY CITY ENGINEERING STAFF REPORT
Proposed discontinuance, abandonment and vacation of the portion of Redwing
Drive located in the Southwest quarter Southwest quarter (SW¼ SW¼) of Section
twenty-five (25), North half Northwest quarter (N½ NW¼), Southeast quarter
Northwest quarter (SE¼ NW¼), Southwest quarter Northeast quarter (SW¼ NE¼)
and Northwest quarter Southeast quarter (NW¼ SE¼) of Section thirty-six (36),
Township one (1) South, Range five (5) East, Montana Principal Meridian, Bozeman,
Montana and entirely contained within the railroad right of way and illustrated in
Exhibit A.
Background
The City of Bozeman received a petition to abandon the described portion of
Redwing Drive. The Engineering Division reviewed the abandonment by the criteria
set forth in Commission Resolution 3628. The petitioner is working to develop the
North Park Master Plan and is working with the railroad on rail improvements
within the railroad right of way in the location of Redwing Drive and is therefore
requesting that the City abandon this portion of Redwing Drive. Montana Rail Link
(MRL) and the Montana Department of Transportation support this abandonment
as it will eliminate an unsignalized at grade railroad crossing. Elimination of at
grade railroad crossings provides improved public safety. There is additional
support from adjacent residents for the elimination of this at grade crossing as it
will eliminate the need for train whistles.
Impact on Public and Private Utilities
The City of Bozeman has existing water and sewer facilities within the railroad right
of way. The City of Bozeman has separate permits with the railroad for these
facilities: (1) for a sanitary sewer main (Permit# 600015), and (2) for a water main
(permit# 600167).
64
These two permits provide for access to the pipelines on railroad property
regardless of whether Red Wing Drive is abandoned as a public roadway easement.
Additionally, review of the City’s water and sewer master plans, no known
improvements are scheduled that would be effected by the proposed abandonment.
Several private utilities were identified in the existing railroad easement and within
the Redwing Drive easement. Abandonment of Redwing Drive will not impact the
ability of these utilities to remain as in the railroad right of way as they have
separate agreements with the railroad.
Impact on Traffic & Accessibility
The easement to be abandoned exists entirely within the railroad right of way and
does not provide access or connectivity to any other property. There is no plan to
utilize this right-of-way for future improvements mentioned in our transportation
master plan. Abandonment of this portion of Redwing Drive will eliminate an un-
signalized railroad crossing.
Two private companies and the City currently use Redwing Drive to access sites
adjacent to Redwing Drive. The petitioner will provide new access to these sites. The
permanent access is detailed in the master site plan for the area. The petitioner will
also provide temporary access to these sites as detailed in the attached Temporary
Access Plan. This plan supersedes plan initially presented in the petition. Letters of
consent are included in the attached petition.
Impact on Fire, Police, and Other Emergency Services
No impact to these services were identified.
Impact on Garbage Collection and Maintenance
65
No impact to these services identified.
Alternatives to Vacation
None identified. As mentioned the approved site plan for the North Park
development creates new road connections that far better serve this area than the
current Red Wing Drive.
Recommendation
Staff recommends abandonment of the easement as proposed. The abandonment
provides benefit to the City and the public reducing the risk posed by the
unimproved railroad crossing. It can be done without detriment to the public
interest and is the preferred alternative.
66
67
Legal Description Property Owner Name Contact Name Contact Address
S36, T01 S, R05 E, COS2153A, Tract 1-B Bozeman Trax Partners LLC Casey Tippens 5148 US Highway 89, Livingston,
MT 59047
S36, T01 S, R05 E, COS2153A, Tract 2-B Bozeman Trax Partners LLC Casey Tippens 5148 US Highway 89, Livingston,
MT 59047
S36, T01 S, R05 E, COS2153A, Tract 4-B Bozeman Trax Partners LLC Casey Tippens 5148 US Highway 89, Livingston,
MT 59047
S36, T01 S, R05 E, COS3019, Area 6 State of Montana, DNRC Ryan Weiss PO Box 201601, Helena, MT
59620-1601
Railroad Right of Way Burlington Northern Santa Fe as
successor to Northern Pacific Railroad
Nick Bailey, P.E.,
Montana Rail Link
101 International Dr,
Missoula, MT 59808
Right of Way Montana Department of Transportation Jean A. Riley, P.E.2701 Prospect, PO Box 201001,
Helena, MT 59620
ZAL-MT08_SIMMENTAL (cell tower identifier)Crown Castle Sharry Bendel 1220 Augusta Drive Suite 500,
Houston, TX 77057
N/A NorthWestern Energy Pat Patterson 121 E Griffin Dr, Bozeman, MT
59715
Adjacent Property Owners
* See EXHIBIT A for Title Report
68
MANLEYFR
O
NTA
GE
7THRED W
IN
G
INTERSTATE 90BAXTERSIMMENTAL UNK19THLEAGRIFFINMANDEVILLEMAUSBOOT HILL
FLORAF A R M V I E W
REEVESSACCOORVILLE
RAWHIDE
GALLATIN PARK
WHEATCOMMERCEI
NTERSTATE 907TH0 0.25 0.5Miles
March 2nd, 2022 Red Wing Drive Abandonment
Redwing DriveRetain (within City ROW)
Abandon (within MRL ROW)
Northwestern EnergyCrown Castle
Temporary Utility Access
We propose to construct a temporaryaccess road within a public accesseasement extending from the retainedportion of Red Wing Drive along theexisting parcel lines. This temporary roadwill provide access to the City ofBozeman, NorthWestern Energy, andCrown Castle sites. The road will beconstructed to Gallatin County's gravelroad standards, with 16' and 12' roadwidths.
Proposed Temporary Access
Crown Castle Access to be Abandonded
City of Bozeman Water PRV
69
NOTICE OF INTENT TO VACATE
NOTICE IS HEREBY GIVEN that, at its regular meeting held on the 8th day of March
2022, the City Commission of the City of Bozeman, Montana, duly and regularly passed and
adopted Commission Resolution No. 5374, entitled:
COMMISSION RESOLUTION NO. 5374
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF
BOZEMAN, MONTANA, DECLARING IT TO BE THE INTENTION
OF SAID COMMISSION TO DISCONTINUE, ABANDON AND
VACATE PORTIONS OF RED WING DRIVE LOCATED IN THE
SOUTHWEST QUARTER SOUTHWEST QUARTER (SW ¼ SW ¼) OF
SECTION TWENTY-FIVE (25), NORTH HALF NORTHWEST
QUARTER (N ½ NW ¼), SOUTHEAST QUARTER NORTHWEST
QUARTER (SE ¼ NW ¼), SOUTHWEST QUARTER NORTHEAST
QUARTER (SW ¼ NE ¼) AND NORTHWEST QUARTER
SOUTHEAST QUARTER (NW ¼ SE ¼) OF SECTION THIRTY-SIX
(36), TOWNSHIP ONE (1) SOUTH, RANGE FIVE (5) EAST,
MONTANA PRINCIPAL MERIDIAN AND CONTAINED ENTIRELY
WITHIN THE RAILROAD RIGHT OF WAY, CITY OF BOZEMAN,
GALLATIN COUNTY, MONTANA.
NOTICE IS HEREBY FURTHER GIVEN that Tuesday, the 5th day of April 2022 at
6:00 p.m. at the Commission Meeting Room, City Hall, 35 N. Rouse Avenue, Bozeman, Montana,
is designated as the time and place to hear objections to the vacation of the street right-of-way
more particularly described in the Resolution of Intention, and is the time and place for any person
whose property abuts upon the portion of the street rights-of-way affected by the proposed vacation
to appear and object, if they wish to do so. Due to the City’s Declaration of Emergency for the Covid-
19 Pandemic, this meeting may be held online using Webex or other technology.
DATED this ##th day of March 2022.
___________________________________
MIKE MAAS
City Clerk
Legal Ad
Publish: 3/##/2022, 3/##/2022
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Memorandum
SUBJECT:
MEETING DATE:
March 8, 2022 AGENDA ITEM TYPE:
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Commission Memo
North Central Master Site Plan and
North Central Block 4 (The Ives) Site Plan Appeal
Appeal number 22005
February 25, 2022
Report To: Mayor and City Commission
From: Anna Bentley, Interim Community Development Director
Subject: Appeal #22005 Regarding Conditional Approval of the North
Central Master Site Plan, Application Number 21029, and North
Central Block 4 (the Ives) Site Plan, Application Number 21165
Meeting Date: March 8, 2022
Agenda Type: Action
Project Location: Blocks 3/4 of Beall’s Third Addition and Blocks A/B of Tracy’s Third
Addition. The Master Site Plan (MSP) is bordered by W. Villard Street
on the north, W. Lamme Street o the south, N. Grand Avenue on the
west and N. Tracy on the east. The Ives site plan in bordered by W.
Villard Street on the north, W. Beal Street on the south, N. Willson
Avenue on the east and N. Grand Avenue on the west.
CITY COMMISSION ACTION:
At the conclusion of consideration of the appeal, the City Commission may uphold,
amend, or overturn the administrative project approval decision for the North
Central Master Site Plan Application 21029 and North Central Block 4 Site Plan
Application 21165. Each decision may be overturned or amended upon the finding
that the final administrative decision was erroneous.
Report Date: February 25, 2022
EXECUTIVE SUMMARY:
This appeal, filed by attorneys Brian Gallik and John Kauffman on behalf of several
individuals and businesses, seeks to overturn the Interim Director of Community
Development’s administrative decision conditionally approving the North Central Master
Site Plan “MSP” (application 21029) and the North Central Block 4 “the Ives” Site Plan
(application 21165) (collectively referred to as the “decisions”) on several grounds.
The projects at issue are infill redevelopment located north of Main Street within the
Downtown Business District. In its Master Site Plan application, HomeBase Partners
proposed nine new buildings on the site, including 367 dwelling units, retail space, office
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space, and a parking garage. The Ives application was submitted by Block 4 Investors, LLC.
This project proposes a 168,000 square foot building that will contain 99 apartments along
with retail space and below ground parking. HomeBase Partners and Block 4 Investors,
LLC will collectively be referred to as Developers.
This application for appeal was submitted by:
John M. Kauffman and Brian K. Gallik on behalf of the six individuals and seven businesses
listed in Exhibit A attached to the appeal (Appellants).
Appeals of administrative project decisions are governed by 380.250.030 Bozeman
Municipal Code (BMC). For a discussion of the procedures governing this appeal, see
below. The record of review for the Master Site Plan consists of the Interim Director’s
Decision Letter Conditionally Approving the North Central Master Site Plan and
incorporated December 17, 2021 staff report for application 21029, all application
materials submitted by the Developer, all public comment, and materials pertinent to the
Design Review Board’s consideration of application 21029. The record of review for the
Ives Site Plan consists of the Interim Director’s Decision Letter1 Conditionally Approving
the North Central Block 4 Site Plan and incorporated December 20, 2021 staff report for
application 21165, all application materials submitted by the Developer, all public
comment, and materials pertinent to the Design Review Board’s consideration of
application 21165.
According to the appeal application materials submitted, Appellants base their appeal on
several grounds. With respect to the Master Site Plan approval, Appellants allege four
deficiencies: (1) it does not meet the intent and purpose of the Neighborhood Conservation
Overlay District (NCOD); (2) it does not comply with the NCOD guidelines; (3) it has a mass,
scale, and transitions to surrounding neighbors that are contrary to the Bozeman
Community Plan 2020 (Community Plan) and criteria found in section 38.320.100, BMC;
and (4) that its parking plan violates BMC 38.230.100.A.6.a.(1). With respect to the Ives
Site Plan approval, Appellants contend that the City inappropriately approved an
engineering “variance/deviation” regarding the location of a driveway access to the site
because requirements to grant a variance in Montana law are not met. Appellants also
challenge the approval of the Ives site plan for the City’s determination that cash-in-lieu of
parkland, rather than requiring dedicated parkland, was appropriate.
1 The Findings of Fact for the Ives Site Plan (page 3) erroneously states that the application was approved
with conditions on December 8, 2021 by Martin Matsen. Approval of the application was delayed due to a
second public notice period and Director Matsen was transitioning out of employment with the City. Interim
Director Anna Bentley conditionally approved the application on December 20, 2021.
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The City responds that both applications were properly approved because each met all
code requirements, sufficiently meets the intent and requirements of the NCOD, and
satisfies many stated goals of the Community Plan. Additionally, the requested driveway
access modification to the Ives site was appropriately granted pursuant to 38.400.090.H.2,
BMC; it is not a variance and need not comply with variance requirements in Montana law.
Finally, the City responds that the proposal to accept cash-in-lieu of parkland is allowed by
38.420.030.A, BMC and required pursuant to resolutions adopted by the City Commission
and was appropriately approved.
Only “aggrieved persons” may appeal an administrative decision in accordance with section
38.250.030.A BMC. Appellants contend they are aggrieved persons as defined in section
38.700.020 BMC2 because they live, own homes, or operate businesses near the site of the
proposed master plan (see Figure 2). Specifically, Appellants state, “the proposed Master
Plan adversely impacts their quality of life, businesses, property values; it impacts their
access to adequate light and air, increases congestion and noise from more traffic and
further exacerbates the parking issues in the downtown core area because of inadequate
parking.” The City does not stipulate that Appellants are “aggrieved persons” pursuant to
38.250.030.A, BMC. A recommendation to preserve the City’s arguments and objections as
to each individual Appellant status as an “aggrieved person” and a discussion of standing
are further discussed below.
Appeals are limited to specific issues raised during the public comment period. See
38.250.030.B, BMC. The City of Bozeman (City) received sixteen public comments during
the public comment period on Master Site Plan application 21029. Relevant to this appeal,
those opposed to the development cited a lack of affordable housing included in the
project, parking and traffic concerns, concerns about the compatibility of the North Central
project with surrounding residential neighborhoods, and the proposal to provide cash-in-
lieu of parkland. During two public comment periods on the Ives application, the City
received over ninety public comment in total. Commenters opposed the application
because of the negative impacts to the proximity of a six-story building to single-story
homes, parking, the impact of construction vehicles, capacity of water and sewer
infrastructure in the neighborhood, and both general traffic concerns and specific traffic
safety concerns related to the Villard parking garage entrance. Of the thirteen total
Appellants, four individuals submitted public comment regarding the Ives application and
three others (two individuals and one business) submitted public comment regarding the
2 Aggrieved person. A person, as defined in this division 38.700, who has a specific, personal and legal interest
in the final decision of an agency, board or commission, as distinguished from a general interest such as is the
concern of all members of the community, and which interest would be specifically and personally prejudiced
by the decision or benefited by its reversal.
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Master Site Plan application. Six Appellants did not submit any public comment on either
application.
Appellants’ attorneys submitted a letter to the Community Development Director and the
Design Review Board dated October 11, 20213 on behalf of unnamed individuals and
entities, expressing concerns about the Ives’ impact on parking in the downtown area,
including the proposal to move off-site parking for the AC Hotel to another location during
construction of the Ives.
At the conclusion of consideration of the appeal, the City Commission may uphold, amend,
or overturn the administrative project decision for Applications 21029 and 21265. The
decision may be overturned or amended upon the finding that such final administrative
decision was erroneous.
Consider the Recommended Motions:
Having reviewed and considered Appeal number 22005 seeking to overturn the decision of the
Interim Director of Community Development conditionally approving the North Central
Master Site Plan application number 21029, including the record of review, the presentation
of staff and Appellants, public comment, and all information presented, I move to preserve all
defenses the City of Bozeman my assert regarding standing of Appellants to bring this appeal
or their ability to raise any issue on appeal if Appellants seek judicial review.
Having reviewed and considered Appeal number 22005 seeking to overturn the decision of the
Interim Director of Community Development conditionally approving the North Central
Master Site Plan application number 21029, including the record of review, the presentation
of staff and Appellants, public comment, and all information presented, I move to uphold the
decision of the Interim Director of Community Development reflected in her December 20,
2021 approval letter.
Having reviewed and considered Appeal number 22005 seeking to overturn the decision of the
Interim Director of Community Development conditionally approving the North Central Block
4 “the Ives” application number 21165, including the record of review, the presentation of
staff and Appellants, public comment, and all information presented, I move to uphold the
3 The letter from Mr. Gallik and Mr. Kauffman was submitted outside of any public comment period for the
Ives. The initial public comment period was open between September 17, 2021 and October 1, 2021. In
response to the letter, on October 18, 2021 the applicant provided additional information about its parking
plan, including information related to the AC Hotel’s required off-site parking. The City reopened public
comment from November 17, 2021 to December 3, 2021 to ensure the public had an opportunity to review
and comment on the revised submissions.
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decision of the Interim Director of Community Development reflected in her December 20,
2021 approval letter.
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Table of Contents
EXECUTIVE SUMMARY: ........................................................................................................................................ 1
TABLE OF CONTENTS: .......................................................................................................................................... 6
ILLUSTRATIONS…………………………………………………………………………………………………….…..7
BACKGROUND:…………………………………………………………………………………………………………10
North Central Master Site Plan Application 21029……….………………………………………10
The Ives Site Plan Application 21165…………………………………………………………………..10
Timeline of North Central MSP and Ives Applications and Appeal………………………...11
38.250.030.A “Aggrieved Person”….…………………………………………………………………....11
38.250.030.B Issue Preclusion…………………………………………………………………………….12
BASIS OF THE APPEAL:……………………………………………………………………………………………13
Staff Evaluation and Director’s Conditional Approval of the Application…………………………14
The Ives Issues on Appeal……………………………………………………………………………………………..15
North Central MSP Issues on Appeal……………………………………………………………………………..17
APPEAL OF THE ADMINISTRATIVE DECISION………………………………………………………….23
APPEAL PUBLIC NOTICE:………………………………………………………………………………………….23
APPEAL PUBLIC COMMENT:………………………………………………………………………………….....23
EVALUATION OF THE APPEAL:……………………………………………………………………………...…23
Authority of the City Commission under the Bozeman Municipal Code…………………23
City Commission May Act as a Board of Adjustment…………………………………………….24
APPEAL PROCEDURE:………………………………………………………………………………………………24
UNRESOLVED ISSUES:………………………………………………………………………………………………25
ALTERNATIVES:……………………………………………………………………………………………………....25
FISCAL EFFECT:………………………………………………………………………………………………………..25
ATTACHMENTS:……………………………………………………………………………………………………….25
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Figure 1: North Central Master Site Plan Boundaries and Buildings
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Figure 2: Appellant address locations
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Figure 3: North Tracy Historic District (purple) and North Central MSP location (green)
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BACKGROUND:
North Central Master Site Plan, Application 21029
The MSP Application provides an overview of development planned on a 4.4 acre site and
describes the proposed phased construction of nine buildings on the site that will contain
office and retail space as well as dwelling units. The site encompasses four blocks in the
Downtown Traditional Core, which is in the NCOD and is zoned B-3, Downtown Business
District. Each individual building in the development will require submittal of its own site
plan application specific to that portion of the development and the Developers must apply
for specific building, demolition, and other permits prior to construction or destruction of
any of the proposed development on the site. The City will analyze and apply standards
and criteria to each individual site plan application.
Two advisory committees reviewed the project. The Development Review Committee
considered the application and recommended that the application was adequate, conforms
to standards, and is sufficient for approval with conditions and code provisions. The
Design Review Board (DRB) recommended approval of the application. Staff found that the
application met all standards and criteria for approval with conditions. The Interim
Community Development Director concurred and conditionally approved the application.
The Ives Site Plan, Application 21165
The Ives site plan application provides specific, detailed information about the proposed
development of one building on Block 4 of the North Central site, which is currently a
surface parking lot. Unlike the MSP application, which requires review of additional
applications prior to construction, approval of a site plan is the process that immediately
precedes issuance of building permits and construction. The proposed building includes
residential apartments, retail space, and a parking garage.
The Development Review Committee considered the Ives application twice and determined
that the application was adequate, conforms to code standards, and was sufficient for
conditional approval. The DRB also reviewed the application, made recommendations, and
recommended approval of the project. Staff found that the application met all standards
and criteria for approval with conditions. The Interim Community Development Director
followed those recommendations and conditionally approved the application.
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Timeline of the North Central Master Site Plan and the Ives Site Plan Approval and Appeal
North Central MSP application 21029 submitted Feb. 17, 2021
The Ives site plan application 21165 submitted Apr. 28, 2021
The Ives Development Review Committee adequacy determination May 19, 2021
The Ives Design Review Board approval recommendation Sept. 8, 2021
The Ives public comment period #1 Sept. 17, 2021 to
October 1, 2021
Public comment from Appellants Herringer and Held received Sept. 27, 2021
Public comment from Appellants Jack and Jane Jelinski received Sept. 28, 2021
Letter regarding parking issues submitted by Gallik and Kauffman October 11, 2021
MSP Development Review Committee adequacy determination Nov. 3, 2021
MSP Design Review Board approval recommendation Nov. 10, 2021
MSP Development Review Committee adequacy determination Nov. 16, 2021
The Ives Development Review Committee adequacy determination4 Nov. 17, 2021
The Ives public comment period #2 Nov. 17, 2021 to
Dec. 3, 2021
North Central MSP public comment period Nov. 17, 2021 to
Dec. 3, 2021
Public comment from Appellants Off the Beaten Path and Dec. 3, 2021
Craig and Jennifer Lee on MSP application received
Director decision conditionally approving MSP application Dec. 20, 2021
Director decision conditionally approving the Ives application Dec. 20, 2021
Appeal 22005 submitted by attorneys on behalf of 13 Appellants Jan. 5, 2022
Notice of appeal hearing and public comment period Feb. 4, 2022 to
March 8, 2022
Commission Hearing on Appeal 22005 March 8, 2022
38.250.030.A “Aggrieved Person:”
The City Attorney recommends the Commission preserve its arguments and objections
about whether each Appellant qualifies as an “aggrieved person,” as required in BMC
38.250.030.A and as defined in section 38.700.020, BMC, with standing to bring this appeal
to be determined by a district court, if Appellants or Developers appeal the Commission’s
decision.
An analysis of standing includes determining whether each Appellant has a concrete,
particularized, and imminent injury sufficient to establish that each has a personal stake in
the outcome of the controversy. A District Court Order from Montana’s Eighteenth Judicial
District in United Food and Commercial Workers v. City of Bozeman and Gallatin TR LP and
4 The Design Review Committee reviewed the Ives application a second time after the applicant supplied
additional information about parking and a revised traffic study.
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Winco Foods, LLC (attached) provides judicial guidance as to minimum requirements to be
an aggrieved person capable of raising an appeal of an administrative decision under the
BMC. Regarding traffic complaints, the court notes that concerns about increased traffic
disrupting a morning commute due to additional congestion on City streets do not differ
from the general interests of the community. The opinion also notes that the proximity of a
landowner to the proposed development is an important factor in determining whether
traffic concerns are particularized and distinct from the general interests of the community.
Appellants here express general concerns about traffic, parking, and access to adequate
light and air. Appellants generally assert that they have standing because they own
properties, live, or work near the North Central project, but they provide no specific
information about how their quality of life, businesses, and property values are adversely
impacted by the development. Regarding the proximity of Appellants to the project, the
map on page 8 of this report reveals that only two of the Appellants live within two
hundred feet5 of the project and both are across the street from the North Central project.
Because a specific standing analysis must be applied to each of the thirteen business and
individual Appellants to determine which, if any, among them have standing to assert the
appeal, staff recommends the Commission hear and decide the merits of the appeal,
preserving the City’s defenses to each Appellant’s standing for later determination by a
district court judge if appellants seek judicial review.
38.250.030.B Issue Preclusion:
The City Attorney recommends the Commission preserve its arguments and objections
about whether each Appellant properly raised each issue during the public notice periods
sufficient to preserve their ability to raise those issues on appeal, as required by section
38.250.030.B, to be determined by a district court, if Appellants or Developers appeal the
Commission’s decision.
In order to raise an issue on appeal, the issue must have been raised in-person or in-
writing during the provided public comment period, unless the issue could not have been
reasonably known by any party during the time of the public comment period pursuant to
38.250.030.B, BMC.
Only one of the seven business appellants submitted any public comment, which was only
in regard to the MSP application. Four of the individual appellants commented on the Ives
application. Two of the individual appellants commented on the MSP application.
5 A two hundred foot proximity is instructive because the BMC requires mailed notice of a proposed
development action to property owners within two hundred feet of the development to ensure adequate
notice to those most affected by the development. See 38.220.420.D.1 and Table 38.220.420, BMC.
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However, one individual’s comment requested an adjustment to the design of “the Henry”
building and to reconsider demolition of the Deaconess Hospital building and neither issue
is raised in the appeal. The other individual’s comment also focused on the effect of the
Henry building on the adjacent historic North Tracy neighborhood6. The comment also
included concerns regarding the lack of parkland and “reasonably priced housing” in the
MSP application. Further complicating matters, Appellants appear to have imposed many
of the specific arguments found in public comment on the Ives application to their
arguments regarding the MSP. Finally, the only letter the City received expressing concern
about parking requirements related to the AC Hotel and Special Improvement District (SID)
parking spaces attached to the Mountain View East/West sites was received outside of any
public comment period for either the Ives or the MSP application.
Some of the issues raised on appeal were the subject of public comment during the public
comment period7 and some of the Appellants submitted public comment to meet the
requirements of 38.250.030.B, BMC. However, it is likely that some issues raised on appeal
were not properly raised during the review period for each application and that the
complete failure of some Appellants to submit any public comment precludes them from
appealing any issues.
Therefore, staff recommends the Commission hear and decide the merits of the appeal,
preserving all defenses the City may assert regarding issue preclusion for determination by
a district court judge.
BASIS OF THE APPEAL:
Appellants seeks to overturn the Interim Director’s approval of both applications on six
grounds in total, four of which apply to the MSP and two apply to the Ives application:
1. The MSP fails to conform to the intent and purpose of the NCOD;
2. The MSP proposes buildings of an inappropriate mass and scale and an
abrupt transition to surrounding neighborhoods that is contrary to the spirit
and intent of the Community Plan and the Unified Development Code (UDC);
3. The MSP does not comply with the NCOD guidelines and threatens the
eligibility of the North Tracy Avenue Historic District to remain on the
National Register of Historic Places;
6 A specific development proposal for the Henry (application 21231) had already received site plan approval
on October 26, 2021 over one month prior to the City’s receipt of these comments on the MSP application.
The public comment period for the Henry closed on September 25, 2021.
7 For example, issues on appeal related to cash-in-lieu of parklands and the placement of a driveway access
point in the Ives application were properly raised by two of the Appellants during the public comment period
for the Ives.
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4. The City inappropriately granted a “variance” request in the Ives application
for a driveway access that does not comply with 38.400.090.18, which
provides the minimum distance from an intersection;
5. The City erred in approving cash-in-lieu of parkland in the Ives application;
and
6. The proposed parking in the MSP fails to meet the criteria of
38.230.100.A.6.a.(1).
Please refer to the Appellant’s submittal for a complete review of the issues on appeal,
which is attached to this report.
Staff Evaluation and Interim Director’s Conditional Approval of the Application
City staff reviewed the North Central MSP and the Ives Site Plan applications for
compliance with all applicable criteria. Staff’s analysis and findings related to each criteria
are contained in the staff reports for each application, which are part of the record of
review. Specific to the issues on appeal, staff provides the following information to explain
the analysis and conclusions supporting approval of the application and rebut issues raised
by Appellants.
As an initial observation, many of the arguments raised by Appellants appear to take issue
with the adopted standards in code. For instance, although the applications adhere to all
code requirements for building setbacks and height step backs, which were adopted to
ensure the adequate provision of light and air, Appellants nonetheless argue that the
project fails to provide adequate access to light and air. The adopted standards that were
applied to this project are the result of policy making decisions about how the downtown
core should look and function, informed by countless hours of public input. The
appropriate opportunity for Appellants to affect policies and standards was during
adoption of the Bozeman Community Plan 2020, the 2019 Downtown Bozeman
Improvement Plan, and the adoption of Ordinance 19789 and Ordinance 198110, among
others. Disagreement with policies or the adopted standards applicable to those policies is
not a basis for appealing the application of those policies and standards to a specific
project.
This staff report addresses Issues 4 and 5 first, out of the order submitted to the
Appellants, because these issues apply only to the Ives Site Plan approval, while the rest
8 This citation on page 9 of the appeal is incorrect. Staff believes the correct citation is to section
38.400.090.D and Table 38.400.090-1, BMC.
9 Adoption of the UDC, including standards for zone edge transitions in 38.320.060.
10 Adoption of custom NCOD Chapter 4B guidelines for the area of the B-3 zone district outside of the Main
Street historic district.
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apply to the MSP. Additionally, because Appellant raises two issues that are related to the
NCOD, staff has combined its response to Appellants’ issues 1 and 3.
1. The Ives Issues on Appeal
Appellants’ issue number 4 contends the City did not apply a three-part test articulated
in Carlson v. Yellowstone Cty. Bd. Of Adjustment, in approving a “variance” for a driveway
access located less than the minimum distance from an intersection. However, Appellants’
reference to a variance mischaracterizes the action taken and cites an inapplicable
standard. The applicant requested a modification from code standards, not a variance.
The BMC requires a forty foot minimum distance between intersections and drive accesses
onto local streets. See 38.400.090.D and Table 38.400.090-1, BMC. Developers proposed
locating a drive access off of W. Villard for the parking garage approximately twenty feet
from a public alley. The BMC explicitly allows modifications to access standards:
H. Modifications of property access standards.
1. Some of the standards listed in subsections C through E of this section,
may be relaxed by the review authority if it is shown during the
development review process that more efficient design can be
accomplished without jeopardizing the public's health, safety and
welfare, the intent of this chapter, or the intent of the city's growth
policy.
2. Modifications from access standards may be approved by the review
authority11. 38.400.090.H, BMC.
To analyze the public health, safety, and welfare impacts of the proposed design,
Developers submitted a report certified by its professional engineer addressing traffic
volumes, turning movements, traffic controls, site design, sight distances, and the location
and alignment of other access points, as required by 38.400.090.H.3, BMC. The City’s
engineering staff reviewed the report and concluded that the proposed modification was a
more efficient design without jeopardizing the public health, safety, and welfare. In
reaching that conclusion, staff considered: the reported traffic volumes and speeds on the
surrounding local streets are relatively low; turning movement analysis revealed limited
potential for safety issues; there are traffic controls on at least one nearby intersection; the
proposed nine additional parking spaces above what currently exists on the site is minimal;
vehicle queueing projections were minimal; sight distance calculations for the proposed
access to eastbound traffic on W. Villard street were nearly 100 feet beyond the required
sight distance for stopping; and calculations of time durations for vehicles to reach a
11 Here, the review authority for access standards is the City Engineer pursuant to 38.200.010.D.10, BMC
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conflict point for the left-turn egress from the site and three other potentially conflicting
traffic movements. Ultimately, staff determined that the proposed design with the
requested modification supported an efficient design and that the likelihood of serious or
fatal car crashes was no greater than what currently exists on streets near the project site.
Additionally, the proposed modification aligns with the intent of the code and the growth
policy. The Community Plan recognizes the importance of infill development, density and
urban intensity in the downtown area:
The City intends to look inward by prioritizing infill. Concentrated development uses
land more efficiently … [and] makes sense for our pocketbooks and overall health.
When it comes to promoting a walkable, bikeable, safe, affordable, and energy efficient
community, density and design matter. Preventing sprawl and increasing resource
efficiency depend on an intensity of urban life found in our commercial centers. …”
Bozeman Community Plan 2020 at p. 31.
In considering the requested modification, staff recognized that as the community
intensifies land uses in the urban core and encourage density, the City may need to exercise
options for flexibility allowed in code and grant reasonable modifications to support
designs that efficiently use our limited land in the downtown area. Staff’s approval of the
modification also complies with Goal DCD-4.4 of the Community Plan, which states,
“Differentiate between development and redevelopment. Allow relaxations of code
provisions for developed parcels to allow redevelopment to the full potential of their
zoning district.” Further, the provision in the municipal code allowing flexibility was
adopted after due process and consultation with the public giving specific authority for the
City Engineer to review and approve such requests in recognition of the complexity of site
design and that standards which may be applicable to newly developing areas are not
always viable or appropriate to an infill condition.
Appellants offer no data or information to support their conclusion that the driveway
access modification endangers public safety, let alone an analysis that it creates a more
hazardous condition than locating the driveway access another twenty feet to the east. In
contrast, staff considered the request based on actual data and analysis from a certified
engineering report along with applying their own professional judgment. Staff did not err
in concluding the modification was allowable and, based on data, was approved.
Issue number 5 asserts that the City inappropriately approved cash-in-lieu of parkland,
instead of requiring the Ives to include a park for the residents of the development and
existing neighborhoods. Appellants argue that failure to provide parkland “will simply put
further pressure on the limited existing parks in the area.”
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The acceptance of cash-in-lieu of parkland in the B-3 district is long established City policy.
With the adoption of Resolution 4784 on April 10, 2017, the City Commission established
that cash-in-lieu is always accepted when development is located in the B-3 zoning
district.12 See Resolution 4784, section 3. In approving the request in the Ives application
for cash-in-lieu of parkland, staff followed the express direction of the City Commission and
was clearly not in error.
2. North Central MSP Issues on Appeal
Issues number 1 and 3 raised by Appellants in the list above are related and concern the
NCOD; specifically, that the MSP fails to conform to the intent and purpose of the NCOD as
well as the Bozeman Guidelines for Historic Preservation & the Neighborhood
Conservation Overlay District “NCOD Guidelines.” Further, Appellants argue that the
development threatens the North Tracy Avenue Historic District’s eligibility for the
National Register of Historic Places. Note that this project does not lie within the North
Tracy Avenue Historic District or any other historic district. A portion of the proposed
development is across the street from a small portion of the North Tracy Avenue Historic
District.
Contrary to Appellants’ suggestions, the NCOD was never intended to require historic
neighborhoods to remain static and unchanged. To the contrary, both the NCOD Intent and
Purpose statement in the BMC and the NCOD Guidelines include express language
encouraging new development and density in the NCOD and specifically in the B-3 zone
outside of the Main Street Historic District:
New construction will be invited and encouraged provided primary emphasis is given
to the preservation of existing buildings and further provided in the design of such new
space enhances and contributes to the aesthetic character and function of the property
and the surrounding neighborhood or area. Contemporary design will be encouraged,
provided it is in keeping with the above-stated criteria, as an acknowledged fact of the
continuing developmental pattern of a dynamic, changing community.
38.340.010.C, BMC.
Downtown Bozeman should be the location of buildings of greatest height and
intensity in the community. The following guidelines apply to properties zoned B-3
(Central Business District) that serve as a transition between the Main Street Historic
12 The City Commission also delegated to the Director of Parks the ability to authorize and accept cash-in-lieu
of parkland in the B-3 zoning district when the review authority for the application is delegated to City
agencies. See Resolution 4614, adopted March 5, 2018.
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District and the residentially zoned neighborhoods. Underdevelopment of this
transitional zone is a major concern. The downtown district is planned for continued
intensification over time with building additions as well as new construction replacing
dilapidated and underutilized older structures on underdeveloped properties. NCOD
Guidelines, Subchapter 4B, adopted January 17, 2006 and amended July 13, 2015.
In fact, the intent and purpose statement cited by Appellants is the preface to the entire
Unified Development Code, not specific to the NCOD. Nonetheless, an important portion of
38.100.040.B, BMC cited by Appellants actually supports staff’s analysis of the application.
“It is further the purpose of these same regulations to seriously consider the character of
the district and its peculiar suitability for particular uses, conserving the value of building,
and encouraging the most appropriate use of land throughout the jurisdictional area (MCA
76-3-304).” Here, the district is the B-3 zoning district in the core of downtown and its
peculiar suitability for particular purposes is high intensity land uses for the purpose of
supporting a mix of commercial, office, and residential uses. According to the Community
Plan, the character of the traditional core is described in this excerpt:
The traditional core of Bozeman is Downtown. This area exemplifies high quality
urban design including an active streetscape supported by a mix of uses on multiple
floors … The intensity of development in this district is high with a Floor Area Ratio
(FAR) well over 1. As Bozeman grows, continued evolution is necessary for long-term
resilience. Underdevelopment and a lack of flexibility can threaten the viability of the
land use designation. Bozeman Community Plan 2020 at p. 55.
Next, Appellants inappropriately utilize intent statements in the UDC without considering
the larger body of adopted code requirements that implement the intent of the code and
ensure compliance with the prefatory intent and purpose statements. Similarly, without
citing any specific guideline that the MSP fails to comply with, Appellants excerpt the
“essential idea behind the [NCOD]” within the NCOD Guidelines. NCOD Guidelines at p. 9.
Note that the NCOD Guidelines are not regulatory or prescriptive; instead they define a
range of appropriate responses to a variety of specific design issues. The MSP staff report
meticulously cites standards and design guidelines applicable to the proposed plan and
finds the project conforms to each standard.
In short, the application is in accordance with the growth policy and meets all applicable
NCOD code requirements. Those portions of the NCOD code too specific to apply to a
master site plan will be evaluated with every subsequent development application. NCOD
Guidelines will also be considered in relation to the building-specific designs submitted
with each future site plan application.
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It is unlikely, as Appellants contend, that the North Central development endangers the
North Tracy Avenue Historic District in any way. Appellants claim that because application
criteria for inclusion in the National Register of Historic Places include considerations of
the setting, “including view sheds,” and the feeling of a property. First, the term “view
sheds” does not appear anywhere in the text of the National Park Service’s Bulletin 15.
Additionally, setting and feeling are only two of the seven criteria applicable to determining
the “integrity” of a property. See National Park Service’s Bulletin 15 at pp. 44-45. Finally, a
person or organization would have to submit a petition to remove a property from the
National Register arguing that “the property has ceased to meet the criteria for listing in
the National Register because the qualities which caused it to be originally listed have been
lost or destroyed…” See 36 CFR § 60.15. The North Tracy Avenue Historic District’s
nomination form contains no mention of the adjacent commercial area and focusses its
discussion solely on the historic homes, their architecture, and the Bozeman residents who
inhabited them. See National Register of Historic Places Continuation Sheet Section
number 8, pp. 83-88. At the time the North Tracy Historic District was nominated to the
National Register of Historic places in 1987, the commercial Medical Arts Center building
had already been in existence for about twenty years while the nearby old Deaconess
Hospital Building was built in 1920. Therefore, the setting and feeling of the proposed
historic district would have included its adjacency to the commercial and business
development north of Main Street.
Finally, the DRB is charged with reviewing projects and making recommendations about
development within the NCOD, balancing the need “to maintain the … desirable
characteristics of structures… while recognizing the need for innovation and individual
expression in the development of these districts.” 38.340.020.A, BMC. Further, the BMC
emphasizes the role of the DRB in guiding the Director’s determination, “the
recommendations of the design review board … must be given careful consideration in the
final action of the [Director].” 38.340.010.A, BMC.
In making the decision to conditionally approve the MSP, the Interim Director considered
the detailed analysis of NCOD guidelines spanning eight pages of the two staff reports
concluding the project is in compliance with the NCOD codes and guidelines, as well as the
unanimous recommendation of the DRB to approve the project. Given the ample support
from staff analysis and the DRB, the Interim Director’s determination was not in error.
Appellants’ issue number 2 objects to the mass and scale of the proposed development as
well as the abrupt transition to the adjacent neighborhoods, which, Appellants assert, is
contrary to the Community Plan and the UDC. Appellants broadly argue the project “is
inconsistent with many of the goals and policies articulated in the City’s code,” but provide
no specific provision of the BMC that the application violates.
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Zoning regulations provide the practical application and meaning to the general direction
of the growth policy and state law.13 Code requirements pertaining to “mass and scale” are
found in the NCOD section of the code. 38.340.050.B, BMC. Additionally, the City has
adopted form and intensity standards to regulate height and transitions where higher
intensity zoning districts abut lower intensity districts. 38.320.050 and .060, BMC. These
standards directly implement the degree of transition between districts the Commission
found necessary and appropriate.
The MSP application meets all provisions of the BMC, including those that provide
standards for mass and scale of buildings, height limits, and required step back from the
façade for the upper floors of tall buildings. See 38.320.020 and 38.340.050, BMC and pp.
19-21 and 30-33 MSP staff report. The Ives building is adjacent to lower intensity
residential zoning districts so zone edge transition criteria, including additional lot line and
height setbacks, apply to that portion of the project and were incorporated into the project
design. See 38.320.060, BMC. Again, the proposed development meets all standards in
code. See p. 20 MSP staff report and p. 11 of the Ives staff report.
Appellants argue that the MSP is contrary to the Community Plan, citing three specific goals
of the growth plan:
Goal N-1: Promote housing diversity, including missing middle housing.
Goal N-4: Continue to encourage Bozeman’s sense of place.
Goal N-4.1: Continue to recognize and honor the unique history, neighborhoods,
neighborhood character, and buildings that contribute to Bozeman’s sense of place
through programs and policy led by both City and community efforts.
While Appellants highlight a laudable portion of the Community Plan, the City has no
means to impose a requirement to provide missing middle housing on this project.
Additionally, Bozeman’s sense of place isn’t restricted to neighborhoods of single
household dwellings. Bozeman’s sense of place is as much established in the downtown
area, with its mix of residential, retail, and office uses, as it is in its neighborhoods. This
development chooses to mimic the sense of place established by the nearby downtown
district in keeping with its location in a commercial area, its zoning in a B-3 district, and
other provisions of the Community Plan that emphasize density and urbanization of the
13 For example, Montana law requires the City to consider “reasonable provision of adequate light and air” in
adopting zoning regulations. Mont. Code Ann. § 76-2-304. The City Commission’s adopted regulations that
establish that the reasonable provision of light and air is achieved with building heights of up to 70 feet in
portions of the B-3 zoning district and a setback at a 45 degree angle from a height of 38 feet where a B-3
district borders R-4 district. 38.320.050 and .060, BMC.
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downtown core. Finally, honoring the unique history, neighborhoods and neighborhood
character of Bozeman does not necessitate denying development in an adjacent B-3 zoning
district that conforms to all applicable standards.
The Community Plan has a variety of goals, which may at times be in tension with one
another especially when analyzing specific development projects. Recognizing this, plan
review criteria require “conformance to and consistency with the City’s adopted growth
policy,” not satisfaction of every goal of the Community Plan. In this instance, staff found
that certain goals of the Community Plan were met by the application, including: Theme 3
“A City bolstered by downtown and complementary districts;” Goal DCD-2 supporting an
increase in development intensity within developed areas and oriented on centers of
employment and activity; Goal M-1.1 encouraging development of housing, jobs, and
services in close proximity to one another through mixed-use land use patterns; and Goal
N-1 recognizing the desire for walkable neighborhoods.
Appellants essentially elevate certain parts of the Community Plan that support their
desired outcome to issues “of critical importance,” ignoring other Plan goals and
discounting those analyzed by staff that support approval of the project. The proposed
development finds sufficient support in the growth policy and was appropriately approved.
Put simply, Appellants take issue with the height of the buildings and their proximity to
single household dwellings nearby, but the proposal meets all applicable height and zone
edge transition standards. Further, individual buildings will be subject to further review to
ensure continued compliance with code requirements. Appellants may disagree that the
adopted building height standards are appropriate or that zone edge transition codes
adequately preserve adjacent neighborhood character, but those disagreements cannot
overturn established policy as applied to a specific project. Without any showing of a
violation of code requirements, and taking into account its conformance to and consistency
with several applicable sections of the Community Plan, the Director’s approval of the MSP
application was not in error and should be upheld.
Finally, Appellants’ Issue number 6 is related to downtown parking concerns. Appellants
allege that the proposed MSP does not satisfy 38.230.100.A.6.a(1), which requires
consideration of “the impact of the proposal on existing and anticipated traffic and parking
conditions.” In this appeal, Appellants raise three issues related to parking: (a) that it was
inappropriate to allow the developer to temporarily move 80 parking spaces that serve the
AC Hotel from the Ives site during construction to a temporary parking lot one block away;
(b) the project’s public notice was deficient due to a discrepancy between the number of
parking spaces stated on the Application (541 parking spaces) and the number of parking
spaces stated on the public notice (646 parking spaces); and (c) that 140 parking spaces
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relied upon by the developer to meet minimum parking requirements are “fictitious ‘SID’
parking spaces attached to the ‘Mountain View East/West sites.” Again, Appellants make
an assertion that there will be a “dramatic increase in demand on parking,” but provide no
data or information to support the assertion or to form a basis to question the reasonable
parking calculations analyzed by the City.
First, the required parking for the MSP and for the AC Hotel are not diminished in any way,
nor is the amount of parking provided for both projects reduced. There is no net loss of
parking; the parking spaces are simply temporarily relocated to a parking lot one block
away during the construction of the Ives building. For background, the February 26, 2020
Off-Site Parking Space License Agreement, was approved by the City as an adequate means
of providing the required parking spaces for the AC Hotel (application 19078), at an off-site
location – a parking lot where the Ives is proposed to be built. One component of the MSP
and the Ives Site Plan applications was a proposal to amend the Agreement to temporarily
allow the required AC Hotel parking spaces to be relocated to a nearby surface parking lot
at the Mountain View East site during construction of the Ives. Once complete, the Ives
building parcel will again provide the required AC Hotel parking as provided in the original
Agreement, as well as on-site parking for residents of the Ives and customers of the retail
space within the building. Staff carefully reviewed the alternative parking arrangement to
ensure it met all code requirements for the AC Hotel’s off-site parking as well as parking
required for the phased development of the MSP. After concluding all code requirements
were met and the proposed parking was a comparable alternative, the City consented to
the modification of the original Agreement to temporarily move the AC Hotel’s parking
spaces to a different parking lot during construction of the Ives.
Second, the public received proper notice of the accurate number of proposed parking
spaces. The City received the MSP application on February 17, 2021, which stated 541
parking spaces were provided in the proposal. The development application subsequently
went through four revisions, which resulted in an increased number of required parking
spaces and new design submittals that provided the increased parking requirements. The
initial A-1 form containing the statement that 541 parking spaces are provided was not
updated to reflect the increase. However, the correct number of parking spaces provided
in the proposal (646 total spaces) was accurately reflected on public notice materials.
Further, the notice included instructions on how to review the full and most up to date
application.
Finally, Appellants take issue with three long-standing policies of the City to grant credits
for parking spaces allocated to specific businesses under Special Improvement District
(SID) 565, grant parking space credits for building near the parking garage, and a waiver
from parking calculations for the first three thousand square feet of commercial space in
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each building. The developer has claimed a credit 140 SID parking spaces to partially fulfill
the total parking spaces required by code for the MSP and a 15 percent reduction of
required spaces for building within 800 feet of the parking garage. Again, each of these
credits, reductions, or waivers exists in code. See 38.540.050.A.3.b(4), 38.540.050.A.2.c(4)
and 38.540.050.A.2.c(5), BMC. Appellants may believe that the City’s standards do not
afford adequate parking downtown, but an appeal of a project decision is an inappropriate
venue to change those standards. For years staff has consistently and fairly applied these
policies to all applicants in the downtown district, including this one. Staff’s calculations of
required parking spaces and applicable credits, reductions, and waivers was formulaic and
was not in error.
APPEAL OF THE ADMINISTRATIVE DECISION:
The deadline for submission of an appeal application was January 5, 2022.
On January 5, 2022, the Community Development Division received an appeal from
attorneys Brian Gallik and John Kauffman on behalf of several clients, pursuant to Section
38.250.030 BMC, “Administrative project decision appeals.” Staff reviewed the appeal
application materials and informed the Appellant that the appeal was received and that a
hearing on the appeal before the City Commission on March 8, 2022 was scheduled.
APPEAL PUBLIC NOTICE:
Notice of the appeal hearing was completed in conformance with 38.220 BMC,
“Applications and Noticing.” Notice was posted on the site, mailed to property owners
within 200 feet, and published in the Bozeman Daily Chronicle on February 20, 2022 and
March 6, 2022. The notice on the project site was posted on February 4, 2022 and will
remain posted until the City Commission hearing on March 8, 2022.
APPEAL PUBLIC COMMENT:
The City has received one comment regarding this appeal from the public at the time of
writing this staff report. Any further public comment received will be forwarded to the City
Clerk’s office for Commission consideration.
EVALUATION OF THE APPEAL:
Authority of the City Commission under the Bozeman Municipal Code
The City Commission has the express authority to uphold, amend, or overturn the
Director’s decision in section 38.250.030.J, BMC.
City Commission May Act as a Board of Adjustment
The City of Bozeman does not have a Board of Adjustment as described in Montana Code
Annotated section 76-2-321. Rather, the City Commission has reserved for itself the
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powers of a board of adjustments through Resolution 4419 in 2012. The City Commission
may choose to exercise its powers as a Board of Adjustment14, separate from those
expressly provided under the BMC.
APPEAL PROCEDURE:
The City Commission must comply with the procedures for appeal as set forth in section
38.250.030.I BMC. During the appeal, the Commission will first hear from the
administrative staff who are required to give an “explanation of the application and nature
of the appeal.” Next, the Appellant will have an opportunity to present its position. If
requested, the landowner may then make a presentation. Then, the Commission will hear
public comment regarding the appeal from any proponent or opponent. During the
process, no person making a presentation may be subject to cross-examination. However,
Commission members and the City Attorney may ask questions for the purpose of eliciting
information or clarifying information presented.
At the close of public comment, the Commission must consider the merits of the appeal,
including considering motions, discussion, and taking a vote. The Commission must
consider the merits of the appeal based upon the same decision criteria and standards as
the Interim Director. If the Commission determines to overturn or amend the Interim
Director’s decision, it must make alternative findings of fact to support the determination.
14 Section 76-2-323, Montana Code Annotated provides:
76-2-323. Powers of board of adjustment. (1) The board of adjustment shall have the following powers:
(a) to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or
determination made by an administrative official in the enforcement of this part or of any ordinance adopted
pursuant thereto;
(b) to hear and decide special exceptions to the terms of the ordinance upon which such board is
required to pass under such ordinance;
(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not
be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions
of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed
and substantial justice done.
(2) In exercising the above-mentioned powers, such board may, in conformity with the provisions of this
part, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination
appealed from and may make such order, requirement, decision, or determination as ought to be made and to
that end shall have all the powers of the officer from whom the appeal is taken.
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UNRESOLVED ISSUES:
The City preserves two issues for determination by a district court judge if the City
Commission’s decision is appealed: whether Appellants have met the requirements of
sections 38.250.030.A and B, BMC.
ALTERNATIVES:
The City Commission has the following alternative actions available with respect to the
North Central Master Site Plan decision:
1. Uphold the Interim Director’s conditional approval decision for application
21029 as written in her December 20, 2021 letter.
2. Amend the conditional approval after making findings as to which of the criteria
are met or not met, modify the conditions of approval, and approve the amended
conditional approval of North Central Master Site Plan application 21029.
3. Overturn the Interim Director’s decision. Find that the Interim Director’s
decision was in error, make alternative findings, and deny application 21029.
The City Commission has the following alternative actions available with respect to the Ives
decision:
1. Uphold the Interim Director’s conditional approval decision for application 21165
as written in her December 20, 2021 letter.
2. Amend the conditional approval after making findings as to which of the criteria are
met or not met, modify the conditions of approval, and approve the amended
conditional approval of the Ives Site Plan application 21165.
3. Overturn the Interim Director’s decision. Find that the Interim Director’s decision
was in error, make alternative findings, and deny application 21165.
FISCAL EFFECT: None other than standard effects related to processing applications.
ATTACHMENTS:
22005 Appeal – submission materials found at
https://weblink.bozeman.net/WebLink/Browse.aspx?id=258848&dbid=0&repo=BOZEMA
N
Record of Review for the North Central Master Site Plan:
Interim Director’s Decision Letter Conditionally Approving the North Central Master
Site Plan and incorporated December 17, 2021 staff report for application 21029;
Application plans and documents submitted by the Developer found at
https://weblink.bozeman.net/WebLink/Browse.aspx?id=233806&dbid=0&repo=B
OZEMAN;
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All public comment found at
https://weblink.bozeman.net/WebLink/browse.aspx?id=258455&dbid=0&repo=B
OZEMAN; and
All materials considered by the Design Review Board regarding Application 21029,
including:
o DRB November 10, 2021 Agenda and materials
o DRB November 10, 2021 Minutes
o DRB November 10, 2021 Video of the meeting
Record of Review for the Ives Site Plan:
Interim Director’s Decision Letter Conditionally Approving the Ives Site Plan and
incorporated December 20, 2021 staff report for application 21165;
Application plans and documents submitted by the Developer found at
https://weblink.bozeman.net/WebLink/Browse.aspx?startid=235672&cr=1;
All public comment found at
https://weblink.bozeman.net/WebLink/Browse.aspx?id=255129&dbid=0&repo=B
OZEMAN; and
All materials considered by the Design Review Board regarding application 21165,
including:
o DRB September 8, 2021 Agenda and materials
o DRB September 8, 2021 Minutes
o DRB September 8, 2021 Video of the Meeting
United Food and Commercial Workers, Local 4; Samara Yanny; John Robert McGowan,
Jr. and Joel Dunbar v. City of Bozeman and Gallatin TR LP and Winco Foods, LLC, Order
re: Motions for Summary Judgment and Motion to Strike, Cause No. DV-19-10BX,
October 18, 2019.
Full application and file record: available to view by contacting the Community
Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Danielle Garber at
dgarber@bozeman.net or 406-582-2272 to make arrangements to view the file.
118
Memorandum
REPORT TO:City Commission
FROM:Tom Rogers, Senior Planner
Anna Bentley, Interim Director of Community Development
SUBJECT:Bennett Annexation and Zone Map Amendment for the Establishment of a
Zoning Designation of REMU for a property Addressed at 5532 Stucky Road
(Readdressed to 2650 and 2680 Bennett Blvd) and generally located
approximately one-half mile west of South 19th Avenue on the south side of
Stucky Road; Application 21331.
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Community Development - Legislative
RECOMMENDATION:Recommended City Commission Annexation Motion: Having reviewed and
considered the staff report, application materials, public comment, and all
information presented, I hereby adopt the findings presented in the staff
report for application 21331 and move to approve the Bennett Properties
Annexation.
Recommended City Commission Zoning Motion: Having reviewed and
considered the staff report, application materials, public comment,
recommendation of the Zoning Commission, and all information presented, I
hereby adopt the findings presented in the staff report for application 21331
and move to approve the Bennett Properties Zone Map Amendment.
STRATEGIC PLAN:4.2 High Quality Urban Approach: Continue to support high-quality planning,
ranging from building design to neighborhood layouts, while pursuing urban
approaches to issues such as multimodal transportation, infill, density,
connected trails and parks, and walkable neighborhoods.
BACKGROUND:The applicant and property owners seek to annex three parcels totaling
35.96 acres plus adjacent rights-of-way into the City limits and establish an
initial zoning of REMU, Residential Emphasis Mixed-Use district. The
property is currently zoned “Agriculture Suburban” (AS) within the County
administered Gallatin County Bozeman Area Zoning District (the Donut).
The property is adjacent and south of Stucky Road and bounded on the east
by Genesis Business Park, a County in holding, and Meadow Creek phase 1
park. Gran Cielo subdivision bounds the property on the southeast side
creating an extension of South 27th Avenue with additional undeveloped
property on the northwest side.
Considerable development is occurring in the vicinity including the Gran
119
Cielo subdivision, Nexus Point residential development, the Graf Street
development, and the West University property annexation to the north
across Stucky Road.
The Future Land Use Map in the Bozeman Community Plan (BCP) 2020
designates the property as “Urban Neighborhood” which includes the REMU
district as an implementing zoning district. Nearby municipal zoning to the
south is R-4 (Residential High Density district) to the southeast, R-3
(Residential Medium Density district) to the south and southwest, and R-4
(Residential High Density district) and R-5 (Residential High Density-Mixed
district) on the northwest side. The property is bordered by Stucky Road to
the north (a Bozeman classified Collector street). The proposed annexation
would bring in additional right of way to build out another section of Stucky
Road as would be required with future development. South 27th Avenue has
adequate right of way width.
The property is currently hosts two residential structures being served with
City sewer service which was connected through an emergency connection
option the city offers. The construction of South 27th Avenue severed the
septic systems from the existing homes. The Gran Cielo development had
installed service adjacent to the structures.
The property has a recently installed 15 inch sewer mains and 8 inch water
mains (partial) running along the property to the west in South 27th Avenue
and on the south side in Graf Street. In addition an existing 21 inch sewer
main is in the Stucky road ROW.
UNRESOLVED ISSUES:There are no identified conflicts on this application at this time.
ALTERNATIVES:1. Approve the application and associated resolution and ordinance;
2. Approve the application with modifications to the recommended
zoning;
3. Deny the application based on the Commission’s findings of non-
compliance with the applicable criteria contained within the staff report; or
4. Open and continue the public hearing on the application, with specific
direction to staff or the applicant to supply additional information or to
address specific items.
FISCAL EFFECTS:No unusual fiscal effects have been identified. No presently budgeted funds
will be changed by this Annexation or Zone Map Amendment. Future
development will incur costs and generate review according to standard City
practices.
Attachments:
21331 Bennett Annx-ZMA CC SR.pdf
Report compiled on: February 24, 2022
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Page 1 of 41
21331 Staff Report for the Bennett Annexation and Zone Map Amendment
Public Hearing: Zoning Commission meeting is on February 7, 2022
City Commission meeting is on March 8, 2022
Project Description: Annexation application 21331 requesting annexation of 35.96 acres and
amendment application 21331 of the City Zoning Map for the establishment of a
zoning designation of REMU (Residential Emphasis Mixed-Use District).
Project Location: 5532 Stucky Road (Readdressed to 2650 and 2680 Bennett Blvd.)
approximately one-half mile west of South 19th Avenue on the south side of Stucky
Road. Legally described as Tract 1 of COS 2632, Tract 2 of COS 2725, and Tract 3 of
COS 2532, located in Section 23, Township Two South (T2S), Range Five East (R5E)
of P.M.M., Gallatin County, Montana.
Recommendation: Meets standards for approval with terms of annexation and contingencies.
Recommended Zoning Commission Motion: Having reviewed and considered the staff
report, application materials, public comment, and all information presented, I hereby
adopt the findings presented in the staff report for application 21331 and move to
recommend approval of the Bennett Properties Zone Map Amendment, with
contingencies required to complete the application processing.
Recommended City Commission Annexation Motion: Having reviewed and considered the
staff report, application materials, public comment, and all information presented, I
hereby adopt the findings presented in the staff report for application 21331 and move
to approve the Bennett Properties Annexation.
Recommended City Commission Zoning Motion: Having reviewed and considered the staff
report, application materials, public comment, recommendation of the Zoning
Commission, and all information presented, I hereby adopt the findings presented in
the staff report for application 21331 and move to approve the Bennett Properties Zone
Map Amendment.
Report Date: February 28, 2022
Staff Contact: Tom Rogers, Senior Planner
Lance Lehigh, City Engineer
Agenda Item Type: Action - Legislative
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Staff Report for the Bennett Annexation and Zone Map Amendment, Application 21331
Page 2 of 41
EXECUTIVE SUMMARY
This report is based on the application materials submitted and public comment received to
date. This report addresses both the zoning amendment for Community Development Board
acting in their capacity as the Zoning Commission, as well as the annexation and the zoning
amendment for the City Commission. The application materials are available on the City’s
website in the laserfiche archive.
Unresolved Issues
There are no identified conflicts on this application at this time.
Project Summary
The applicant and property owners seek to annex three parcels totaling 35.96 acres plus
adjacent rights-of-way into the City limits and establish an initial zoning of REMU, Residential
Emphasis Mixed-Use district. The property is currently zoned “Agriculture Suburban” (AS)
within the County administered Gallatin County Bozeman Area Zoning District (the Donut).
The property is adjacent and south of Stucky Road and bounded on the east by Genesis
Business Park, a County in holding, and Meadow Creek phase 1 park. Gran Cielo subdivision
bounds the property on the southeast side creating an extension of South 27th Avenue with
additional undeveloped property on the northwest side.
Considerable development is occurring in the vicinity including the Gran Cielo subdivision,
Nexus Point residential development, the Graf Street development, and the West University
property annexation to the north across Stucky Road.
The Future Land Use Map in the Bozeman Community Plan (BCP) 2020 designates the
property as “Urban Neighborhood” which includes the REMU district as an implementing
zoning district. Nearby municipal zoning to the south is R-4 (Residential High Density district)
to the southeast, R-3 (Residential Medium Density district) to the south and southwest, and R-
4 (Residential High Density district) and R-5 (Residential High Density-Mixed district) on the
northwest side. The property is bordered by Stucky Road to the north (a Bozeman classified
Collector street). The proposed annexation would bring in additional right of way to build out
another section of Stucky Road as would be required with future development. South 27th
Avenue has adequate right of way width.
The property is currently hosts two residential structures being served with City sewer service
which was connected through an emergency connection option the city offers. The construction
of South 27th Avenue severed the septic systems from the existing homes. The Gran Cielo
development had installed service adjacent to the structures.
The property has a recently installed 15 inch sewer mains and 8 inch water mains (partial)
running along the property to the west in South 27th Avenue and on the south side in Graf
Street. In addition an existing 21 inch sewer main is in the Stucky road ROW.
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Staff Report for the Bennett Annexation and Zone Map Amendment, Application 21331
Page 3 of 41
In determining whether the criteria applicable to this application are met, Staff considers the
entire body of plans and regulations for land development. Standards which prevent or mitigate
possible negative impacts are incorporated in many locations in the municipal code but are
principally in Chapter 38, Unified Development Code. References in the text of this report to
Articles, Divisions, or in the form xx.xxx.xxx are to the Bozeman Municipal Code.
Community Development Board (Zoning Commission) Summary
The Community Development Board acting in their capacity as the Zoning Commission held
a public hearing on February 7, 2022. After consideration of the application materials, Staff
report, and public comment the Board voted unanimously to recommend approval of the Zone
Map Amendment to establish REMU zoning as requested by the applicant.
No public comment was heard on the application. A video recording of the meeting can be
viewed at the following link.
https://bozeman.granicus.com/player/clip/236?view_id=1&redirect=true
Meeting starts at time stamp 1:29
Community Development (Zoning Commission) Alternatives
1. Approve the application with contingencies as presented;
2. Deny the application based on findings of non-compliance with the applicable criteria
contained within the staff report; or
3. Open and continue the public hearing, with specific direction to staff or the applicant to
supply additional information or to address specific items.
City Commission Alternatives
1. Approve the application and associated resolution and ordinance;
2. Approve the application with modifications to the recommended zoning;
3. Deny the application based on the Commission’s findings of non-compliance with the
applicable criteria contained within the staff report; or
4. Open and continue the public hearing on the application, with specific direction to staff
or the applicant to supply additional information or to address specific items.
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TABLE OF CONTENTS
EXECUTIVE SUMMARY ...................................................................................................... 2
Unresolved Issues ............................................................................................................... 2
Project Summary ................................................................................................................. 2
Community Development Board (Zoning Commission) Summary ................................... 3
Community Development (Zoning Commission) Alternatives .......................................... 3
City Commission Alternatives ............................................................................................ 3
SECTION 1 - MAP SERIES: ................................................................................................... 5
SECTION 2 - RECOMMENDED TERMS OF ANNEXATION .......................................... 11
SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP AMENDMENT... 16
SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS ...................................... 17
Annexation ........................................................................................................................ 17
Zone Map Amendment ..................................................................................................... 17
SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS ................................ 17
SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND FINDINGS ........... 25
Spot Zoning Criteria ......................................................................................................... 35
PROTEST NOTICE FOR ZONING AMENDMENTS ......................................................... 36
APPENDIX A - NOTICING AND PUBLIC COMMENT .................................................... 37
APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING ................... 37
APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF ............................ 40
FISCAL EFFECTS ................................................................................................................. 41
ATTACHMENTS ................................................................................................................... 41
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SECTION 1 - MAP SERIES:
Map 1: Project Vicinity Map
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Map 2: Project Aerial Vicinity Map (2021 Image)
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Map 3: Large Format Vicinity Map
Subject Property 127
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Map 4: BCP 2020 Future Land Use Map
Subject Property 128
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Map 5: Existing City Zoning
Subject Property 129
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Map 6: Watercourses, existing and Proposed PROST trail network
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SECTION 2 - RECOMMENDED TERMS OF ANNEXATION
The following terms of annexation are recommended to enable the application to comply with
the City’s Annexation Policy and the requirements of state law for the provision of services.
Recommended terms of annexation:
1. Naming Term. The documents and exhibits to formally annex the subject property must
be identified as the “Bennett Properties Annexation”.
2. Map Format Term. An Annexation Map, titled “Bennett Properties Annexation Map”
with a legal description of the property and any adjoining un-annexed rights-of-way
and/or street access easements must be submitted by the applicant for use with the
Annexation Agreement. The map must be supplied as a PDF for filing with the
Annexation Agreement at the County Clerk & Recorder, and a digital copy for the City
Engineers Office. This map must be acceptable to the Director of Public Works and
City Engineers Office, and must be submitted with the signed Annexation Agreement.
3. Adjacent ROW Term. The applicant must extend the annexation map to the full width
of Stucky Road for the full length of the subject property adjacent to Tract 2 COS 2725.
4. Timing Term. The applicant must execute all contingencies and terms of said
Annexation Agreement with the City of Bozeman within 60 days of the distribution of
the annexation agreement from the City to the applicant or annexation approval shall
be null and void.
5. Impact Fee Notice Term. The land owners and their successors must pay all fire, street,
water and sewer impact fees at the time of connection; and for future development, as
required by Chapter 2, Bozeman Municipal Code, or as amended at the time of
application for any permit listed therein.
6. SID Waiver Term Header. If they do not already exist the applicant must provide and
file with the County Clerk and Recorder's office executed Waivers of Right to Protest
Creation of Special Improvement Districts (SIDs) for the following:
a. Street improvements to S. 27th Avenue between Stucky Road and West Graf
Street including lighting, signalization, paving, curb/gutter, sidewalk, and storm
drainage.
b. Street improvements to Stucky Road between Fowler Lane and South 19th
Avenue including lighting, signalization, paving, curb/gutter, sidewalk, and storm
drainage.
c. Street improvements to West Graf Street between Fowler Lane to South 19th
Avenue including lighting, signalization, paving, curb/gutter, sidewalk, and storm
drainage.
d. Street improvements to Fowler Lane between West Graf Street and Stucky Road
including lighting, signalization, paving, curb/gutter, sidewalk, and storm
drainage.
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e. Intersection improvements at South 27th Ave and West Graft Street including
lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm
drainage.
f. Intersection improvements at Fowler Lane and West Graf Street including
lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm
drainage.
g. Intersection improvements at West Graf Street and South 19th Ave including
lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm
drainage.
h. Intersection improvements at Stucky Road and South 19th Avenue including
lighting, signalization/channelization, paving, curb/gutter, sidewalk, and storm
drainage.
i. Intersection improvements to Fowler Lane and Stucky Road including lighting,
signalization/channelization, paving, curb/gutter, sidewalk, and storm drainage.
j. SID waiver 3 - Alternate Financing Term. The document filed must specify that in
the event an SID is not utilized for the completion of these improvements, the
developer agrees to participate in an alternate financing method for the completion
of the improvements on a fair share, proportionate basis as determined by square
footage of property, taxable valuation of the property, traffic contribution from the
development, or a combination thereof. The applicant must provide a copy of the
SID waiver in conjunction with the Annexation Agreement.
k. SID waiver template term. The applicant may obtain a copy of the template SID
waiver from the City Engineering Department. The document filed must specify
that in the event an SID is not utilized for the completion of these improvements,
the applicant agrees to participate in an alternate financing method for the
completion of said improvements on a fair share, proportionate basis as determined
by square footage of property, taxable valuation of the property, traffic contribution
from the development, or a combination thereof. The applicant must provide a
copy of the SID waiver filed with the County Clerk and Recorder prior to
annexation.
7. Notice Term Header. The Annexation Agreement must include the following notices:
a. Notice Term "a" Storm Water Master Plan. The Annexation Agreement must
include notice that, prior to development, the applicant will be responsible for
preparing a storm water master plan in conjunction with future development. The
storm water master plan shall address maintenance and operations until and unless
the City affirmatively assumes responsibility for maintenance and operations of
stormwater facilities within the area of the annexation.
b. Notice Term "b" Extent of Service. The Annexation Agreement must include notice
the City will, upon annexation, make available to the Property existing City services
only to the extent currently available, or as provided in the Agreement.
c. Notice Term "d" Verification of Municipal Service. The Annexation Agreement
must include notice that there is no right, either granted or implied, for Landowner
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to further develop any of the Property until it is verified by the City that the
necessary municipal services are available to the property.
d. Notice Term "e" Municipal Service Installation. The Annexation Agreement must
include notice that, prior to development, the applicant will be responsible for
installing any facilities required to provide full municipal services to the properties
in accordance with the City of Bozeman's infrastructure master plans and all City
policies that may be in effect at the time of development.
e. Notice Term "f" Utility Easements. The Annexation Agreement must include notice
that utility easements may be required to be provided by the landowner at the time
of development to ensure necessary municipal services are available to the
property.
f. Notice Term "assessments. The agreement must include notice that charges and
assessments may be required after completion of annexation to ensure necessary
municipal services are available to the property.
g. Notice Term "h" Impact Fees. The Annexation Agreement must include notice that
the City will assess system development and impact fees in accordance with
Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code.
h. Notice Term "I" Impact Fees. All procedural terms necessary to establish the
Annexation Agreement in conformance with state law and municipal practice will
be included with the final Annexation Agreement.
8. Municipal Connection Term. The Annexation Agreement must include notice that the
applicant must connect to municipal services and will be responsible for installing any
facilities required to provide full municipal services to the property in accordance with
city policy at the time of connection.
9. On-site Septic Abandonment Term. The applicant must properly abandon the existing
on-site septic tank and leach field prior to connection to the City sanitary sewer system.
The applicant must report the abandonment to the City Water and Sewer
Superintendent for inspection, and the applicant must report the abandonment to the
Gallatin City County Health Department. In addition to abandonment of the septic tank
and leach field, the applicant must demonstrate that the sanitary sewer service to the
septic tank has been completely disconnected from the old septic system prior to
connection to the City sanitary sewer system.
10. On-site Well Disconnect Term. The applicant must completely disconnect the on-site
well from the house prior to connection to the City water system to protect the City’s
system from cross contamination. The applicant must contact the City Water and Sewer
Superintendent to inspect the disconnect prior to connection of water service from the
house to the City water system.
11. CIL of Water Term. The applicant must contact the City’s Engineering Department to
obtain an analysis of cash-in-lieu of water rights for the proposed annexation. The
determined amount must be paid prior to the adoption of Resolution of Annexation, if
applicable.
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12. BMC 38.400.010 Streets (A) (1). Upon future development, Stucky Road must be fully
constructed adjacent to the subject property to the City's Collector Standard as defined
in the City's Transportation Master Plan.
Stucky Road Offsite Improvements Term of Annexation:
The Landowner agrees that prior to final occupancy of any structure in any phase on
the BENNETT PROPERTY ANNEXATION, the entire cross section width of Stucky
Road from the intersection of South 19th Avenue to the western boundary of the
BENNETT PROPERTY ANNEXATION shall be improved to a collector standard
road section as described in the long range transportation plan for Bozeman, whichever
such plan is in place at the time such improvements are made. Landowner recognizes
the required improvements to Stucky Road are necessary to provide adequate and
sufficient access for vehicular, pedestrian, and multi-modal transportation, are
reasonably related to and necessary to mitigate the impacts of developing the
BENNETT PROPERTY ANNEXATION to the adopted zoning designation.
Stucky Road improvements shall include dedication or an easement to the City of all
necessary right-of-way including on the BENNETT PROPERTY ANNEXATION and
right-of-way on adjacent properties necessary to complete the entirety of Stucky Road
to a collector standard, all necessary subsurface improvements, and all other necessary
improvements including but not limited to bike lanes, parking lanes, signage, curb,
gutter, boulevard, stormwater facilities, and sidewalk on both sides of the required
section of Stucky Road.
A portion of the Stucky Road improvements are potentially eligible to be partially or
fully funded by the City through its capital improvement program. Landowner
recognizes Stucky Road improvements are not listed for funding in the City’s current
capital improvement program. Landowner agrees nothing herein binds the City to add
Stucky Road improvements to its capital improvement program.
Landowner recognizes Stucky Road, as a designated collector street, provides a critical
east/west corridor for the overall street network for the City and improvements to
Stucky Road are necessary to mitigate the impacts of any future development on the
BENNETT PROPERTY ANNEXATION. Therefore, in addition to the Landowner
recognizing and agreeing Stucky Road must be completed prior to development as
stated above, the Landowner agrees to participate in an equitable fair share of
improvement costs for improving the entirety of Stucky Road as described herein to a
collector standard. The Landowner further understands and agrees that portions of
Stucky Road lie outside of the City boundaries and that the City has limited ability to
compel participation by other parties to participate in cost share for improvements to
Stucky Road which may cause delay to improvements.
As such, Landowner agrees the City is in no way bound or obligated to use eminent
domain to further the completion of improvements to Stucky Road as required by this
Agreement. The City agrees to work in good faith with the Landowner to make road
improvements but Landowner may need to work with and encourage participation by
other Landowners along the required section of Stucky Road in order for road
improvements to move forward in a time frame desired by Landowner.
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Landowner shall provide a waiver of right to protest creation of a special improvement
district for Stucky Road Improvement as required pursuant to Section XX of the
annexation agreement
Any required right-of-way (ROW) or public street and utility easement acquisition
from offsite property owners is the applicant's responsibility.
13. As presented in the Bennett Annexation Map, engineering is in agreement with the
proposed ROW/Easement for South 27th and Stucky as presented. The applicant will
need to provide a final public street and utility easement as part of the final annexation
agreement.
The applicant is advised to work with engineering and planning on review of the final
annexation documents
Advisory Comments
1. BMC 38.400.010 Streets (A) (1). Upon future development, South 27th Avenue must
be fully constructed adjacent to the subject property to the City’s Collector Standard as
defined in the City’s Transportation Master Plan. Any required right-of-way (ROW)
or public street and utility easement acquisition from offsite property owners is the
applicant’s responsibility.
2. BMC 38.410.070 (A) (1) Municipal water, sanitary sewer and storm sewer systems. In
conjunction with streets construction - The City’s Water Facility Plan identified the
need for a water transmission main (CIP Reference FP_1386: 12-inch water main New
Growth and Development) directly adjacent to the subject property in South 27th Ave
to service future development.
Water infrastructure improvements will be reviewed with future development
applications. The identified water capital planning improvements must be designed in
coordination with any future Stucky Road improvements adjacent to the subject
property.
The applicant is advised that the capital Improvements identified within the facility
plans must be located within City ROW, a public street and utility easement, or a water
and sewer easement.
3. BMC 38.410.070 (A) (1) Municipal water, sanitary sewer and storm sewer systems. In
conjunction with streets construction - The City’s Water Facility Plan identified the
need for a water transmission main (CIP Reference FP_1372: 16-inch water main New
Growth and Development) directly adjacent to the subject property in Stucky Road to
service future development.
Water infrastructure improvements will be reviewed with future development
applications. The identified water capital planning improvements must be designed in
coordination with any future Stucky Road improvements adjacent to the subject
property.
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The applicant is advised that the capital Improvements identified within the facility
plans must be located within City ROW, a public street and utility easement, or a water
and sewer easement.
4. Montana Post-Construction Storm Water BMP Design Guidance Manual Seasonal
High Groundwater - The subject project is located in an area that is known to have
seasonally high groundwater. The applicant must confirm seasonal high groundwater
elevations, and seasonal high groundwater data must be measured and submitted with
any future development application on the parcel. Due to the seasonal nature of
SHGWL measurements, the applicant is advised to begin groundwater measurements
in the winter and continue measuring through July. Measurements must be at sufficient
intervals to define the SHGWL across the site. Industry guidance recommends a three-
foot minimum separation from the bottom of a stormwater facility to the underlying
groundwater table. The applicant is advised that future development may be subject to
limitations or restrictions based on seasonal high groundwater elevations.
5. The subject property is located within the Meadow Creek Subdivision payback district
boundary for sewer, water, and signal improvements. The applicant is advised that the
payback must be paid at the time of future subdivision or site plan development
approval.
6. BMC 38.410.130 Water rights - The applicant must contact Griffin Nielsen with the
City Engineering Department to obtain a determination of cash-in-lieu (CIL) of water
rights upon future development.
SECTION 3 - RECOMMENDED CONTINGENCIES OF ZONE MAP
AMENDMENT
Please note that these contingencies are necessary for the City to complete the process of the
proposed amendment. These contingencies only apply in the event that the related annexation
request has previously been approved.
Recommended Contingencies of Approval:
1. That all documents and exhibits necessary to establish an initial municipal zoning
designation shall be identified as the “Bennett Properties Annexation Zone Map
Amendment.” All required documents must be returned to the City within 60 days of the
City Commission action to annex the property or the preliminary approval shall be null and
void.
2. That the Ordinance for the Zone Map Amendment shall not be finalized until the
Annexation Agreement is signed by the applicant and formally approved by the City
Commission. If the annexation agreement is not approved, the Zone Map Amendment
application shall be null and void.
3. That the applicant must submit a Zone Amendment map, titled “Bennett Properties
Annexation Zone Map Amendment”. The map must be supplied as a PDF. This map must
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be acceptable to the City Engineer’s Office, and must be submitted within 60 days of the
action to approve the zone map amendment. Said map shall contain a metes and bounds
legal description of the perimeter of the subject property including adjacent right-of-ways
or street easements, and total acreage of the property to be rezoned; unless the property to
be rezoned can be entirely described by reference to existing platted properties or
certificates of survey.
4. The Ordinance for the Zone Map Amendment shall not be drafted until the applicant
provides an editable metes and bounds legal description prepared by a licensed Montana
surveyor.
SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS
Annexation
Having considered the criteria established for an annexation, the Development Review
Committee (DRC) did not find any deficiencies that prohibit annexation at this time.
The City Commission will hold a public meeting on the annexation on March 8, 2022. The
meeting will begin at 6 p.m. The meeting will be conducted through WebEx. Instructions on
joining the meeting will be included on the meeting agenda.
Zone Map Amendment
Having considered the criteria established for a zone map amendment, the Staff found the
requested zoning meets standards for approval as submitted. The Zone Map Amendment
(ZMA) is in conjunction with an annexation request. Staff’s recommendation and staff
responses are predicated on approval of the annexation, application 21331.
The Development Review Committee (DRC) considered the amendment. The DRC did not
identify any infrastructure or regulatory constraints that would impede the approval of the
application.
The Community Development Board acting in their capacity as the Zoning Commission will
hold a public hearing on this ZMA on February 7, 2022 and will forward a recommendation to
the Commission on the Zone Map amendment.
The City Commission will hold a public hearing on the zone map amendment on March 8,
2022. The meeting will begin at 6 p.m. The meeting will be conducted through WebEx.
Instructions on joining the meeting will be included on the meeting agenda.
SECTION 5 - ANNEXATION STAFF ANALYSIS AND FINDINGS
In considering applications for approval of the requested annexation, the advisory boards and
City Commission shall consider the following:
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Commission Resolution No. 5076 Criteria
Commission Resolution No. 5076 Goals
Goal 1: The City of Bozeman encourages annexations of land contiguous to the
City.
Criterion Met. The property in question is contiguous to the City limits on the west, south,
and southeast side.
Goal 2: The City encourages all areas that are totally surrounded by the City to annex.
Criterion Met. The subject property is wholly surrounded although not immediately adjacent.
Goal 3: The City encourages all properties currently contracting with the City for City
services such as water, sanitary sewer, and/or fire protection to annex.
Criterion Met. The subject property underwent emergency connection to city sewer service to
allow the construction of South 27th Avenue. No other city services such as water or fire
protection are being provided at this time. Future development will be required to connect with
City services.
Goal 4: The City of Bozeman requires annexation of all land proposed for development
lying within the existing and planned service area of the municipal water and sewer
systems as depicted in their respective facility plans, any land proposed for development
that proposes to utilize municipal water or sewer systems.
Criterion Met. The subject property lies within the planned service area of the municipal water
and sewer services. Future proposed developments will be required to utilize municipal water
or sewer systems.
Goal 5: The City encourages annexations within the urban area identified on the future
land use map in the current Bozeman Growth Policy.
Criterion Met. As shown in Section 1, the subject property is planned as ‘Urban Neighborhood’
and is within the urban area of the growth policy. See the discussion under Criterion A of
Section 6 of the report for more information on the growth policy.
Goal 6: The City of Bozeman encourages annexations to make the City boundaries more
regular rather than creating irregular extensions which leave unannexed gaps between
annexed areas or islands of annexed or unannexed land.
Criterion Met. The proposed annexation will fill in a missing gap between Meadow Creek
Phase 1, the Gran Cielo development, and north to Stucky road as well as integration of
South 27th Avenue as a north south transportation corridor.
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Goal 7: The City of Bozeman encourages annexations which will enhance the existing
traffic circulation system or provide for circulation systems that do not exist at the
present time.
Criterion Met. Stucky Road and Graf Street provide access to the subject property. Stucky
Road is a County road improved with asphalt millings in 2008 and resurfaced again in 2020.
Stormwater is dealt with by barrow ditches, there are no pedestrian or bicycle facilities, no
curb and gutter, or shoulder. According to the Greater Bozeman Area Transportation Plan,
2007 Update, Stucky Road is designated as a Collector street. Collector streets require a 90
foot right of way. Chapter 4 of the Bozeman Transportation Master Plan, 2017 Update details
Major Street Network improvements (MSN). Stucky Road is identified as a recommended
MSN improvement. Item MSN-16 states Stucky Road from South 19th Avenue to Gooch Hill
Road needs to be reconstructed to a three-lane urban collector street. Traffic on Stucky Road
continues to increase. There appears to be a variety of reasons for the increase including the
construction of the roundabout Cottonwood Road, improved surfacing, and county growth.
Stucky Road has become an alternate route to enter the City from Huffine Lane.
40 feet of ROW exists adjacent to the Genesis Business Park development, see Plat J-284.
Genesis Business Park filed an SID for signalization of Stucky and South 19th Avenue
(Document No. 399739 & 400869). Based on review of filed documentation with the Gallatin
County Clerk and Recorder, Genesis Business Park did not file a waiver the right to property
and SID for street improvement to Stucky Road. A full 45 feet of ROW exists adjacent to
Grace Bible Church, see Easement #2605962. In addition, Grace Bible Church provided a
waiver the right to property and SID for street improvement to Stucky Road (Document No.
359448).
The subject property will include the right of way for South 27th Avenue and Stucky Road both
of which are designated Collectors streets according to the Bozeman Area Transportation Plan
2017 update. There is limited opportunity for east/west connections due to previous
development (Genesis Business Park) and the Meadow Creek Phase 1 Park exists. The Stucky
Road Annexation addressed at 3000 Stucky Road, Application 15-232, west of the Bennett
property and also on the south side of the road required off-site identified the same deficiency
in the street network and required a term of annexation that prior to any habitable structure
built on the property that Stuck Road from South 19th Avenue to the western edge of the Stucky
Road Annexation property be contracted to the Collector standard. A copy of the signed and
executed Annexation agreement can be reviewed at the link below, see annexation term #9.
https://weblink.bozeman.net/WebLink/DocView.aspx?id=97161&dbid=0&repo=BOZEMAN
The City is currently reviewing a separate annexation on the north side of Stucky Road. As
required by the City’s annexation policy, Stucky Road ROW will be required with this
annexation.
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A future trail connection is shown in PROST plan connecting the Meadow Creek Park north
adjacent to the watercourse (Middle Creek Ditch) and extends southerly through Middle Creek
subdivision. This annexation will enhance both the City’s vehicular and pedestrian network by
providing future right of way width for these improvements. Although the improvements will
not happen at the time of annexation, future development will be required to install these
improvements as their frontage requirements. Right of way for South 27th and Stucky Road is
required as a term of annexation.
Term of annexation 6 requires grant of a waiver of right to protest creation of SIDs for street
improvements.
Although annexing and establishment of initial zoning does not generate traffic demand, future
development of the property will. The timing and mechanism for payment for the
reconstruction of Stucky Road remains an unresolved issue. In addition, to approve the request
to annex into the City and establish initial zoning is predicated on finding that the Applicant
has overcome the burden of proof showing the Goals and policies of Resolution 5076 are met
(Section 5 of this report) and the application meets all of criteria set forth in Section 6 of this
report. There is no plan in place to make the necessary improvements to Stucky Road to fully
serve possible development on a 35.98 acre parcel with an entitlement of REMU zoning.
Therefore, staff is suggesting Term of Annexation 12 detailing Stucky Road improvements
upon future development.
Goal 8: The City prefers annexation of parcels of land larger than five (5) acres in size,
but will allow annexation of smaller parcels if factors such as topographic limitations,
sanitary disposal needs, fire access, maintenance of public facilities, etc., justify a smaller
annexation.
Criterion Met. The subject property is approximately 35.96 acres.
Goal 9: The City seeks to obtain water rights adequate for future development of the
property with annexation.
Criterion Met. After annexation, the subject property will be bound to the provisions of
38.410.130 which require evaluation of water adequacy and provision of water if needed at
time of development. The municipal code section requires water rights or an equivalent to be
provided. Exact timing and amounts will be evaluated during development review. There are
several methods to address the requirements of 38.410.130. The annexation agreement will
provide notice of this requirement, see Terms of Annexation 5 and 7i. The landowner will
consent to this requirement by signature on the annexation agreement.
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Goal 10: The City of Bozeman encourages annexations for City provision of clean treated
water and sanitary sewer.
Criterion Met. The subject property is located within the City’s planned water and sewer
service area. See Goal 4 above. Two existing houses are on the properties. Both required
emergency connection to the City sewer system to accommodate the construction of South 27th
Avenue for the Gran Cielo subdivision. In addition, both dwelling units are on individual
potable water systems. As a term of annexation all remaining sewer and potable water systems
will be required to be disconnected and connection to City water and sewer systems furthering
this goal.
As noted above, the property has a recently installed 15 inch sewer mains and 8 inch water
mains (partial) running along the property to the west in South 27th Avenue and on the south
side in Graf Street. In addition an existing 21 inch sewer main is in the Stucky road ROW.
Additional water and sewer lines needed to service development on site will addressed with
subsequent review process. Any future development will be required to connect to the City
systems.
Per Term of Annexation 9, the Annexation Agreement required to finalize the requested
annexation will require the applicant to design extensions of services to meet the City’s
adopted infrastructure standards. These include provisions for minimum water pressure and
volumes, adequate sewer flows by volume, gravity flow of sewers, and other standards
necessary to protect public health and safety and ensure functional utilities.
Resolution No. 5076 Policies
Policy 1: Annexations must include dedication of all easements for rights-of-way for
collector and arterial streets, adjacent local streets, public water, sanitary sewer, or storm
or sewer mains, and Class I public trails not within the right of way for arterial or
collector streets. Annexations must also include waivers of right to protest the creation
of special or improvement districts necessary to provide the essential services for future
development of the City.
Criterion Met. As discussed in Section 5 Goal 7, additional right of way is being included for
both South 27th Avenue to the west and Stucky Roads to the north. The Recommended Terms
of Annexation include requirements for these right of way provisions. See Terms of
Annexation 3 and 8.
No Class I trails are designated for the subject property according to the PROST Plan.
Policy 2: Issues pertaining to master planning and zoning must be addressed prior to or
in conjunction with the application for annexation.
Criterion Met. The subject property is planned for Urban Neighborhood. No change to the
growth policy is required. The application includes a request for initial zoning of REMU. See
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the zone map amendment section of this report for analysis of the zone map amendment
criteria.
Policy 3: The application for annexation must be in conformance with the current
Bozeman Growth Policy. If a Growth Policy Amendment is necessary to accommodate
anticipated uses, the amendment process must be initiated by the property owner and
completed prior to any action for approval of the application for annexation.
Criterion Met. The property is designated “Urban Neighborhood” on the future land use map.
No growth policy amendment is required. See discussion under zone map amendment Criterion
A.
Policy 4: Initial zoning classification of the property to be annexed will be determined
by the City Commission, in compliance with the Bozeman Growth Policy and upon a
recommendation of the City Zoning Commission, simultaneously with review of the
annexation petition.
The Community Development Board acting in their capacity as the City Zoning Commission
will be reviewing the requested zoning district designation on February 7, 2022. The Zoning
Commission’s recommendation will be passed along to the City Commission for review and
consideration along with the annexation request on March 8, 2022.
Policy 5: The applicant must indicate their preferred zoning classification as part of the
annexation petition.
Criterion Met. The applicant has requested a zoning designation of REMU, Residential
Emphasis Mixed Use district. See Section 6 of this report for analysis of the requested zoning.
Policy 6: Fees for annexation processing will be established by the City Commission.
Criterion Met. The appropriate application processing and review fees accompanied the
application.
Policy 7: It is the policy of the City that annexations will not be approved where
unpaved county roads will be the most commonly used route to gain access to the
property unless the landowner proposes a method to provide for construction of the
road to the City’s street standards.
Criterion Met. The subject property is accessed by Stucky Road which is a collector on the
north and Graf Street on the south both of which are paved. In addition, South 27th Street
bounds the west edge of the property and is currently being constructed to City standards
although historically this portion of South 27th has been a gravel surface providing access to
the farm activities and residences on the property. See also Goal 7 above.
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Policy 8: Prior to annexation of property, the City will require the property owner to
acquire adequate and usable water rights, or an appropriate fee in lieu thereof, in
accordance with Section 38.410.130 of the municipal code, as amended.
Criterion Met. The property owner shall provide usable water rights, or cash in-lieu of water
rights thereof, in an amount to be determined by the Director of Public Works, as outlined by
Section 38.410.130 of the municipal code. The calculated amount will be determined by the
Director of Public Works and based on the zoning designation approved by the City
Commission. Term of annexation 5 and 7i requires notice of this requirement to be part of the
annexation agreement. Satisfaction of this requirement will occur with future development.
Policy 9: Infrastructure and emergency services for an area proposed for annexation
will be reviewed for the health, safety and welfare of the public and conformance with
the City’s adopted facility plans. If the City determines adequate services cannot be
provided to ensure public health, safety and welfare, the City may require the property
owner to provide a written plan for accommodation of these services, or the City may
reject the petition for annexation. Additionally, the parcel to be annexed may only be
provided sanitary sewer service via the applicable drainage basin defined in the City
Wastewater Collection Facilities Plan.
Criterion Met. City infrastructure and emergency services are available to the subject property.
An existing 15 inch sewer mains and 8 inch water mains (partial) running along the property
to the west in South 27th Avenue and on the south side in Graf Street. In addition an existing
21 inch sewer main is in the Stucky road ROW. Any future development will be required to
connect to the City systems. The property is located adjacent to existing urban development
that is currently served by Bozeman Fire.
Per Term of Annexation 7b, d-e, and 9, the Annexation Agreement required to finalize the
requested annexation will require the applicant to design extensions of services to meet the
City’s adopted infrastructure standards. These include provisions for minimum water pressure
and volumes, adequate sewer flows by volume, gravity flow of sewers, and other standards
necessary to protect public health and safety and ensure functional utilities.
Policy 10: The City may require annexation of any contiguous property for which city
services are requested or for which city services are currently being provided. In
addition, any person, firm, or corporation receiving water or sewer service outside of
the City limits is required as a condition of initiating or continuing such service, to
consent to annexation of the property serviced by the City. The City Manager may
enter into an agreement with a property owner for connection to the City’s sanitary
sewer or water system in an emergency conditioned upon the submittal by the property
owner of a petition for annexation and filing of a notice of consent to annexation with
the Gallatin County Clerk and Recorder’s Office. The contract for connection to city
sewer and/or water must require the property owner to annex or consent to
disconnection of the services. Connection for purposes of obtaining City sewer services
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in an emergency requires, when feasible as determined by the City, the connection to
City water services.
Criterion Met. Emergency sewer service was request by the applicant and granted by the City
which included a contract for annexation as required by this provision. The agreement is field
with the Clerk & Recorder’s Office. The subject property intended to undergo annexation even
without the emergency connection to sewer. A complete and signed annexation application
was submitted to the City.
Policy 11: The annexation application shall be accompanied by mapping to meet the
requirements of the Director of Public Works. Where an area to be annexed can be
entirely described by reference to a certificate of survey or subdivision plat on file with
the Gallatin County Clerk and Recorder the mapping may be waived by the Director of
Public Works.
Criterion Met. Mapping to meet the requirements of the Director of Public Works must be
provided with the Annexation Agreement. Mapping requirements are addressed in
Recommended Term of Annexation 2. The map must include adjacent right of way and
therefore cannot be described solely by reference to platted lands.
Policy 12: The City will assess system development/ impact fees in accordance with
Montana law and Chapter 2, Article 6, Division 9, Bozeman Municipal Code.
Neutral. The annexation does not require immediate payment of fees. The annexation
agreement will provide notice of obligations to pay impact fees at times of triggers as required
in ordinance.
Policy 13: Public notice requirements: Notice for annexation of property must be
coordinated with the required notice for the zone map amendment required with all
annexation. The zone map amendment notice must contain the materials required by
38.220.410, BMC.
Notices of the public hearing have been mailed, published in the Bozeman Daily Chronicle
twice, and posted on the site as set forth under this policy. See Appendix A for more details.
Policy 14: Annexation agreements must be executed and returned to the City within 60
days of distribution of the annexation agreement by the City, unless another time is
specifically identified by the City Commission.
Criterion Met. Suggested terms of annexation include a notice that the agreement, once
prepared and provided to the applicant, must be signed and retuned within the stated time
period. This policy will be implemented only if the Commission acts to grant approval. If the
application is denied then no annexation agreement will be necessary.
Policy 15: When possible, the use of Part 46 annexations is preferred.
Criterion Met. This annexation is being processed under Part 46 provisions.
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Policy 16: Where a road improvement district has been created, the annexation does
not repeal the creation of the district. The City will not assume operations of the district
until the entirety of the district has been annexed. Any funds held in trust for the
district will be used to benefit the district after transfer to the City. Inclusion within a
district does not lessen the obligation to participate in general city programs that
address the same subject.
Neutral. No road improvement district is associated with this application.
Policy 17: The City will notify the Gallatin County Planning Department and Fire
District providing service to the area of applications for annexation.
Criterion Met. The necessary agencies were notified and provided copies of the annexation.
Policy 18: The City will require connection to and use of all City services upon
development of annexed properties. The City may establish a fixed time frame for
connection to municipal utilities. Upon development, unless otherwise approved by the
City, septic systems must be properly abandoned and the development connected to the
City sanitary sewer system. Upon development, unless otherwise approved by the City,
water wells on the subject property may be used for irrigation, but any potable uses
must be supplied from the City water distribution system and any wells disconnected
from structures. The property owner must contact the City Water and Sewer
Superintendent to verify disconnects of wells and septic systems.
Criterion Met. Term of annexation 10 and 11 requires full compliance with this policy. The
existing residential structures utilized the emergency connection option in conjunction with
this application to provide sewer service. No additional service are currently being contracted.
If approved, the all septic systems and water use for human consumption will be severed and
abandoned and connection to the City water and sewer system will be completed. Finally, all
future development will be required to connect to city services.
SECTION 6 - ZONE MAP AMENDMENT STAFF ANALYSIS AND
FINDINGS
In considering applications for plan approval under this title, the advisory boards and City
Commission must consider the following criteria (letters A-K). As an amendment is a
legislative action, the Commission has broad latitude to determine a policy direction. The
burden of proof that the application should be approved lies with the applicant.
A zone map amendment must be in accordance with the growth policy (criteria A) and be
designed to secure safety from fire and other dangers (criteria B), promote public health, public
safety, and general welfare (criteria C), and facilitate the provision of transportation, water,
sewerage, schools, parks and other public requirements (criteria D). Therefore, to approve a
zone map amendment the Commission must find Criteria A-D are met.
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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.
Section 76-2-304, MCA (Zoning) Criteria
A. Be in accordance with a growth policy.
Criterion Met. The Bozeman Community Plan (BCP) 2020, Chapter 5, p. 73, in the section
titled Review Criteria for Zoning Amendments and Their Application, discusses how the
various criteria in 76-2-304 MCA are applied locally. Application of the criteria varies
depending on whether an amendment is for the zoning map or for the text of Chapter 38, BMC.
The first criterion for a zoning amendment is accordance with a growth policy.
Future Land Use Map
The proposed amendment is a change to the zoning map. Therefore, it is necessary to analyze
compliance with the future land use map. Chapter 3 of the BCP 2020 addresses the future land
use map. The introduction to that chapter discusses the importance of the chapter. Following
are some excerpts.
“Future land use is the community’s fundamental building block. It is an illustration of the
City’s desired outcome to accommodate the complex and diverse needs of its residents.”
“The land use map sets generalized expectations for what goes where in the community.
Each category has its own descriptions. Understanding the future land use map is not
possible without understanding the category descriptions.”
The area of this application is within the anticipated growth area of the City. As shown on the
maps in Section 1, on the excerpt of the current future land use map, the property is designated
as Urban Neighborhood. The Urban Neighborhood designation description reads:
“This category primarily includes urban density homes in a variety of types, shapes,
sizes, and intensities. Large areas of any single type of housing are discouraged. In
limited instances, an area may develop at a lower gross density due to site constraints
and/or natural features such as floodplains or steep slopes. Complementary uses such
as parks, home-based occupations, fire stations, churches, schools, and some
neighborhood-serving commerce provide activity centers for community gathering and
services. The Urban Neighborhood designation indicates that development is expected
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to occur within municipal boundaries. This may require annexation prior to
development.
Applying a zoning district to specific parcels sets the required and allowed density.
Higher density residential areas are encouraged to be, but are not required or
restricted to, proximity to commercial mixed use areas to facilitate the provision of
services and employment opportunities without requiring the use of a car.”
The correlation between the future land use map of the growth policy and the zoning districts
is presented in Table 4 of the Bozeman Community Plan 2020. As shown in the following
Correlation with Zoning Table excerpt, the REMU district is an implementing district of the
Urban Neighborhood.
The applicant is requesting REMU for the entire property, which is classified as a commercial
and mixed-use zoning designation pursuant to section 38.300.110, BMC. The intent and
purpose of the REMU district is to establish 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. These purposes
are accomplished by a variety of objectives as detailed in Appendix B in this report. In other
words it is a very permissive zoning district.
Tables 38.310.040.A, B, & C list permitted uses in the REMU district. All types of residential
structures are allowed from accessory dwelling units through apartment buildings, nearly all
type of commercial uses such as retail, medical, offices, restaurants, and convenience uses
are permitted. Industrial uses are limited although light manufacturing is permitted on a
smaller scale.
This zoning district correlates with the principles applied in the Bozeman Community Plan
2020. Many of the ten principles are listed under Basic Planning Precepts of the Plan are
suporte by the REMU district For example, the precept that urban design should integrate in
residential and commercial land use activities, multimodal transportation, and open spaces is
supported by the REMU district implementation strategies #5. Secondly, precept that a variety
in housing and employment opportunities are essential is supported by the REMU district
objectives #1 and 4. Third, diverse uses of land should occur relatively close to one another.
This precept is supported by implementation strategy #2, 3, 4 and intent and purpose statement.
Finally, the City intends to create a healthy, safe, resilient, and sustainable community by
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incorporating a holistic approach to the design, construction, and operation of buildings,
neighborhoods, and the City as a whole. Developments should contribute to these goals and be
integrated into their neighborhood and the larger community. This goals is implemented by the
zoning districts strategy #3, 4, 5, and 6. Additional harmonious synergies are apparent but
overall, the REMU district is supportive of the BCP 2020.
Goals and Policies
A zoning amendment is also evaluated against the goals and policies of the BCP 2020. Most
of the goals and policies are not applicable to this application. Relevant goals and objectives
have been identified by staff. Conflict with the text of the growth policy hasn’t been identified.
The Short Term Action list on page 63 of the BCP 2020 describes 14 items to implement the
growth policy. The first two relate to direct changes to the zoning map in support of listed
goals and objectives. These include increasing the intensity of zoning districts in already
developed areas. Beginning on page 71 of the BCP 2020 in the section titled Zoning
Amendment Review, the document discusses how the City implements zoning for new areas,
amendments to areas, and revisions to existing text. This section includes a discussion of when
the City may initiate a zoning change to a more intensive district to increase development
opportunities. This section demonstrates that the City, as a matter of policy, is supportive of
more intensive zoning districts and development. It is inconsistent with this approach to zone
at annexation for lower intensities than what infrastructure and planning documents will
support. This policy approach does not specify any individual district but does lean towards
the more intensive portion of the zoning district spectrum.
Goal DCD-1: Support urban development within the City.
The proposed zoning is occurring in conjunction with an annexation. Any future
development will be required to occur at urban densities and will be within the City. If the City
Commission declines the annexation then the requested REMU zoning will not occur.
DCD-1.11 Pursue annexations consistent with the future land use map and adopted facility
plans for development at urban intensity.
The proposed zoning is consistent with the future land use map and is within the current
facilities plans.
Goal RC-3: Collaborate with Gallatin County regarding annexation and development
patterns adjacent to the City to provide certainty for landowners and taxpayers.
Gallatin County has been notified of the proposed annexation.
RC-3.3 Prioritize annexations that enable the incremental expansion of the City and its
utilities.
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The property in question is contiguous to the City limits on the west, south, and southeast
with over 4,500 lineal feet adjacent to existing City limits. It adds approximately 34 acres to
the City limits that is available for urban development while creating a more consistent city
border.
RC-3.4 Encourage annexation of land adjacent to the City prior to development and
encourage annexation of wholly surrounded areas.
Refer to previous response (RC – 3.3 response)
B. Secure safety from fire and other dangers.
Criterion Met. There are no current buildings, however future development will be served by
the Bozeman Fire Department. Fire protection water supply will be provided by the City of
Bozeman water system. The property is not within any delineated floodplain nor does it have
other known natural hazards. Upon annexation the subject property will be provided with City
emergency services including police, fire and ambulance. Future development of the property
will be required to conform to all City of Bozeman public safety, building and land use
requirements. The City provides emergency services to adjacent properties and no obstacles
have been identified in extending service to this parcel.
C. Promote public health, public safety, and general welfare.
Criterion Met. The proposed zoning designation will promote general welfare by
implementing the future land use map in the BCP 2020. Public health and safety will be
positively affected by requiring the two existing homes and new development to connect to
municipal sanitary sewer and water systems, which will prevent groundwater pollution and
depletion by wells and septic systems.
As noted in Criterion B, further development and redevelopment must be in accordance with
modern building, access, stormwater, pedestrian circulation, ingress and egress to the site, and
full connection to the greater transportation network for users ensuring the promotion of public
health, safety and general welfare. The annexation and development of this site will facilitate
expansion of the non-motorized travel network with placement of a multi-use trail along water
course. Presence of the trail will facilitate non-motorized travel and recreational activities
supportive of personal health.
D. Facilitate the provision of transportation, water, sewerage, schools, parks and other
public requirements.
Criterion Met. This property is included in future planning areas. 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
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City implements these plans through its capital improvements program that identifies
individual projects, project construction scheduling, and financing of construction.
As stated in 38.300.020.C, the designation of a zoning district does not guarantee approval of
new development until the City verifies the availability of needed infrastructure. All zoning
districts in Bozeman enable a wide range of uses and intensities. At time of future subdivision
or site plan review the need for individual services can be more precisely determined. No
subdivision or site plan is approved without demonstration of adequate capacity.
38.300.020.C, “Placement of any given zoning district on an area depicted on the zoning
map indicates a judgment on the part of the city that the range of uses allowed within that
district are generally acceptable in that location. It is not a guarantee of approval for any
given use prior to the completion of the appropriate review procedure and compliance with
all of the applicable requirements and development standards of this chapter and other
applicable policies, laws and ordinances. It is also not a guarantee of immediate
infrastructure availability or a commitment on the part of the city to bear the cost of
extending services.”
See also comments under Criterion C.
E. Reasonable provision of adequate light and air.
Criterion Met. The REMU zoning designation has requirements for setbacks, height, and lot
coverage which provide for the reasonable provision of adequate light and air. Any future
development of the property will be required to conform to City standards for setbacks, height,
lot coverage, and buffering.
In addition to the zoning standards, adopted building codes contain more detailed requirements
for air circulation, window placement, and building separation that further ensure the intent of
this criterion is satisfied.
The site has wetlands running through the northern portion of the property. The City requires
protection of wetlands. This requirement applies to all zoning districts. This will support
additional light and air beyond what would otherwise be applicable on the site.
F. The effect on motorized and non-motorized transportation systems.
Criterion Met. The proposed zoning will allow for a higher density of uses than is currently
allowed under Gallatin County zoning. As a result, under the proposed zoning, when a
development is proposed, they will be responsible for their frontage improvements which will
include improvements along Stucky Road, Graff Street, and 27th Avenue in addition to internal
streets required to serve development.
In addition, the City’s proposed trails plan includes a future trail along the watercourse.
Additional offsite improvements to mitigate safety concerns to connect to the greater
transportation system such as Stucky Road, multi-modal crossing facilities for South 19th
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Avenue, assuming a nexus, future development will be required to provide these improvements
which will enhance the city’s motorized and non-motorized transportation systems.
The site was recently re-addressed as result of requiring emergency connection to City
sewer system. The previous address was 5532 Stucky Road and now addressed as 2650
and 2680 Bennett Blvd. Bennett Boulevard was constructed through improvement
required by the Gran Cielo subdivision development.
The Walk Score is low with a walk score of 1, a transit score of zero, and a bike score of
49. Average walk score for the city as a whole is 48 out of 100. These values are provided by
Walk Score, a private organization which presents information on real estate and transportation
through walkscore.com. The algorithm which produces these numbers is proprietary. A score
is not an indication of safety or continuity of services or routes. Scores are influenced by
proximity of housing, transit, and services and expected ability, as determined by the
algorithm, to meet basic needs without using a car. Sites located on the edge of the community
have lower scores than those in the center of the community as the area is still under
development and therefore diversity of uses is less than in fully established areas. There are no
adopted development standards relating to the walk score. If, as suggested by the applicant,
their statement of constructing mixed-use, may eventually improve these scores.
G. Promotion of compatible urban growth.
Criterion Met. The intent and purpose of the REMU is to establish 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. Although
the character of the area is emerging a somewhat eclectic use, building form, and building form
has evolved. To the east is un-annexed business park type office complex without complete
streets to support multi-modal transportation. To southeast is the Gran Cielo subdivision which
is a low density residential development. To the north is a designated regional commercial
designated area that has yet to be developed.
Use of this mixed-use zone is appropriate for areas adjacent to a variety of land uses and can
stand alone to develop its own neighborhood character, as described in residential intent and
purpose statement. Surrounding zoning includes medium to high density residential, County
lands, and future commercial.
Creating a more dense residential development with commercial services adjacent to a higher
intensity commercial area is a compatible use. In addition, the proposed zoning is in
accordance with the Bozeman Community Plan’s future land use designation of Urban
Neighborhood.
H. Character of the district.
Criterion Met. The proposed REMU zoning promotes the character of the district as the
intent of the Residential Emphasis Mixed-use District is to:
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“… establish 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.” Described in Appendix B
below the district employs nine aspirational statements to encourage developers to
design and construct developments that meet the intent and purpose of the district.
1. Emphasizing residential as the primary use, including single household dwellings,
two to four household dwellings, 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; and
h. Encourage developments that exhibit the physical design characteristics of
vibrant, urban, and pedestrian-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; and
e. 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; and
b. 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;
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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; and
g. 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 anticipate changes in the marketplace;
d. Provide flexibility in phasing to help ensure both long and short term financial
viability for the project as a whole;
9. Providing standards and guidelines that promote sustainable design:
Use of this zone is appropriate for sites at least five acres in size and areas located
adjacent to an existing or planned residential area to help sustain commercial uses
within walking distance and a wider range of housing types
With such a broad intent and purpose statement is difficult to find the REMU district would
not be promotive of a districts character. The applicant states the obvious that the REMU
district, “will allow for similar and additional compatible uses and allow for increased
residential density and small scale retail and restaurants…” However, other residential zoning
districts allow the same residential structure types and densities as the REMU district. The
REMU district allows great latitude for large scale commercial use as described in Table
38.310.040.A and B. Retail uses are limited as proportion of the master planned site, there is
no restrictions to convenience uses, offices, general service use, short term rentals, although
hotels are limited to 40,000 square feet.
Section 76-2-302, MCA says “…legislative body may divide the municipality into districts of
the number, shape, and area as are considered best suited to carry out the purposes [promoting
health, safety, morals, or the general welfare of the community] of this part.” Emphasis added.
This proposal amends the zoning map and not the text. Therefore, no element of this
amendment modifies the standards of any zoning district. The character of the districts as
created by those standards remains intact.
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As noted above, the City Commission has latitude in considering the geographical extents of a
zoning district. Application of any municipal zoning district to the subject property will alter
the existing agricultural character of the subject property. It is not expected that zoning freeze
the character of an area in perpetuity. Rather, it provides a structured method to consider
changes to the character.
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 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. These will support the ability of future development in REMU to be
compatible with adjacent development and uphold the residential character of the area. As
noticed in the growth policy under discussion of this criterion a local street is considered an
adequate separation between different uses and districts to minimize impacts, see page 77 of
the Bozeman Community Plan 2020.
I. Peculiar suitability for particular uses.
Criterion Met. The property is located adjacent to residential and commercial uses which the
REMU envisions a combination of. The site is well located in relation to utilities and
transportation. Proximity of housing to significant services and employment is encouraged in
the growth policy. The proposed REMU zoning designation is suitable for the property’s
location and adjacent uses.
J. Conserving the value of buildings.
Neutral. The two existing residential structures will remain as the property develops.
Considerable new development has and is planned to occur nearby with the exception of the
Genesis Business Park to the east. Development of the site will likely increase building values
in the area, including the County inholding, by adding additional demand for goods and
services, connecting and completing the transportation network, and through the minimum
standards of the REMU district nine implantation strategies.
K. Encourage the most appropriate use of land throughout the jurisdictional area.
Criterion Met. The proposed REMU zoning designation will encourage the most appropriate
use of land as the property is adjacent to both residential and commercial uses. There is access
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to the city’s services, including streets, thus is able to support a higher intensity of uses as
allowed within the REMU zoning district. Furthermore, the proposed REMU zoning
designation is consistent with the BCP 2020 future land use map designation of “Urban
Residential”.
Spot Zoning Criteria
Rezoning may, in certain factual circumstances, constitute impermissible “spot zoning.” The
issue of whether a rezoning constitutes spot zoning was discussed by the Montana Supreme
Court in Plains Grains LP v. Board of County Comm’rs of Cascade County and Little v. Bd.
Of County Comm’rs, in which the Court determined that the presence of the following three
conditions generally will indicate that a given situation constitutes spot zoning, regardless of
variations in factual scenarios.
Based on the review of the following criteria, Staff concludes that this application is not Spot
Zoning.
1. Is the proposed use significantly different from the prevailing land uses in the area?
No. While the proposed use is not an exact match in type or intensity of the adjacent land uses,
it is not significantly different from the uses. To the west of the subject property is a mix of
high density and high density-mixed zoning historically, as with the entire area, was used for
agricultural purposes and very low density residential. Approximately half of the property to
the east was developed as a business park and the other half is zoned as high density residential
already developed with moderately sized apartments buildings. Directly to the south is an area
of R-3 zoning, residential medium density district, and while developed well below permitted
density additional development right are allowed. Finally, the area to the north and across
Stucky Road is designated as large commercial area according to the Bozeman Community
Plan 2020 and is currently undergoing annexation and zoning review (see application 21409)
requesting a split zoning designation of B-2 (Community Business) and B-2M (Community
Business-Mixed).
Thus, while the REMU is not the exact same as the adjacent properties, it is a proposed
intensity that falls within the range of adjacent properties land uses of suburban office, medium
to high density residential, and designated commercial areas with primary transportation
corridors bounding the property. As discussed in Criterion A above, the REMU zoning is
consistent with the adopted growth policy.
2. Is the area requested for the rezone rather small in terms of the number of separate
landowners benefited from the proposed change?
Criterion Met. The application is submitted by one landowner in conjunction with the proposed
annexation of the property. While the City supports and encourages multiparty annexation
applications, they are not required, thus single owner petition annexation requests are the most
frequently seen. The amendment is consistent with and supports the City’s adopted growth
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policy, thus is assumed to be a benefit to the greater community even though the number of
immediate landowners are small.
3. Would the change be in the nature of “special legislation” designed to benefit only one
or a few landowners at the expense of the surrounding landowners or the general public?
No. While the applicant will directly benefit from the proposed zone map amendment, the
amendment is not at the expense of surrounding landowners or the general public. As discussed
previously, no substantial negative impacts are identified due to this amendment.
The application is consistent both with the City’s and the County’s growth policy. The growth
policy’s consistency demonstrates benefit to the general public and greater community. As
mentioned previously, any future development will require the applicant to provide the needed
infrastructure to support new development. Concurrency and adequacy of infrastructure should
mitigate potential negative effects on others.
As discussed in Criterion H, the application is similar and consistent with the existing and
developing character of the area. Therefore, the amendment does not benefit the landowner at
the expense of others.
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.
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APPENDIX A - NOTICING AND PUBLIC COMMENT
Notice was published in the Bozeman Daily Chronicle on January 23, 2022 and February 20,
2022. The notice was posted on site and notices mailed by the applicant as required by 38.220
and the required confirmation provided to the Planning Office. Notice was provided at least 15
and not more than 45 days prior to any public hearing.
As of the writing of this report on February 24, 2022, no written comments have been received
on this application.
APPENDIX B - PROJECT GROWTH POLICY AND PROPOSED ZONING
Adopted Growth Policy Designation:
The property is designated as “Urban Neighborhood” in the Bozeman Community Plan 2020.
“This category primarily includes urban density homes in a variety of types, shapes,
sizes, and intensities. Large areas of any single type of housing are discouraged. In
limited instances, an area may develop at a lower gross density due to site constraints
and/or natural features such as floodplains or steep slopes. Complementary uses such
as parks, home-based occupations, fire stations, churches, schools, and some
neighborhood-serving commerce provide activity centers for community gathering and
services. The Urban Neighborhood designation indicates that development is expected
to occur within municipal boundaries. This may require annexation prior to
development.
Applying a zoning district to specific parcels sets the required and allowed density.
Higher density residential areas are encouraged to be, but are not required or restricted
to, proximity to commercial mixed use areas to facilitate the provision of services and
employment opportunities without requiring the use of a car.”
Proposed Zoning Designation and Land Uses:
The applicant has requested zoning of REMU, Residential Emphasis Mixed Use District
whose intent is to:
Residential emphasis mixed-use zoning district (REMU). The intent and purpose of the
REMU district is to establish 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. These purposes are accomplished by:
1. Emphasizing residential as the primary use, including single household dwellings,
two to four household dwellings, townhouses, and apartments.
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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:
i. Create self-sustaining neighborhoods that will lay the foundation for healthy
lifestyles;
j. Support compact, walkable developments that promote balanced transportation
options;
k. Have residential as the majority use with a range of densities;
l. Provide for a diverse array of commercial and civic uses supporting residential;
m. Have residential and commercial uses mixed vertically and/or horizontally;
n. Locate commercial uses within walking distance;
o. Incorporate a wider range of housing types; and
p. Encourage developments that exhibit the physical design characteristics of
vibrant, urban, and pedestrian-oriented complete streets.
5. Providing standards and guidelines that emphasize a sense of place:
f. Support or add to an existing neighborhood context;
g. Enhance an existing neighborhood's sense of place and strive to make it more
self-sustainable;
h. Encourage a new neighborhood commercial center(s) with a unique identity and
strong sense of place;
i. Develop commercial and mixed-use areas that are safe, comfortable, and
attractive to pedestrians; and
j. 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:
c. Preserve and integrate the natural amenities into the development; and
d. 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;
h. Where appropriate create a center within an existing neighborhood;
i. Facilitate proven, market driven projects to ensure both long and short-term
financial viability;
j. 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;
k. Foster the master plan development into a mix of feasible, market driven uses;
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l. Emphasize the need to serve the adjacent, local neighborhood and as well as the
greater Bozeman area; and
m. Maximize land use efficiency by encouraging shared use parking.
8. Promoting the integration of action:
e. Support existing infrastructure that is within and adjacent to REMU zones;
f. Encourage thoughtfully developed master planned communities;
g. Provide flexibility in the placement and design of new developments and
redevelopment to anticipate changes in the marketplace;
h. Provide flexibility in phasing to help ensure both long and short term financial
viability for the project as a whole;
9. Providing standards and guidelines that promote sustainable design:
Use of this zone is appropriate for sites at least five acres in size and areas located
adjacent to an existing or planned residential area to help sustain commercial uses
within walking distance and a wider range of housing types.
The Zoning Correlation Table on Page 58 of the Bozeman Community Plan, 2020 correlates
zoning districts with the Growth Policy’s land use categories, demonstrating that the proposed
zoning designation of REMU correlates with the Growth Policy’s future land use designation
of “Residential Mixed-Use”.
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APPENDIX C - OWNER INFORMATION AND REVIEWING STAFF
Owner: Marshall Bennett, 5532 Stucky Road (Readdressed to 2650 and 2680
Bennett Blvd), Bozeman, MT 59718
Applicant: Cadius Partners, LP, 23 Apex Drive, Bozeman, MT 59718
Representative: Madison Engineering, 895 Technology Blvd., Suite 203, Bozeman, MT 59718
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Report By: Tom Rogers, Senior Planner, Community Development Department
FISCAL EFFECTS
No unusual fiscal effects have been identified. No presently budgeted funds will be changed by
this Annexation or Zone Map Amendment.
ATTACHMENTS
The full application and file of record can be viewed at the Community Development
Department at 20 E. Olive Street, Bozeman, MT 59715.
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Memorandum
REPORT TO:City Commission
FROM:Jennifer A. Giuttari, Assistant City Attorney
Jeff Mihelich, City Manager
SUBJECT:Ordinance 2100, Recognizing and Designating June 19th as Juneteenth
National Freedom Day, Designating June 19th as the Local Juneteenth
Holiday, Replacing the Term Columbus Day with Indigenous Peoples' Day,
and Designating the Friday after Thanksgiving as the Local Indigenous
Peoples' Day Holiday
MEETING DATE:March 8, 2022
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:I move to provisionally adopt Ordinance 2100, which recognizes and
designates June 19th as Juneteenth National Freedom Day, designates June
19th as the local Juneteenth holiday, replaces the term Columbus Day
with Indigenous Peoples' Day, and designates the Friday after Thanksgiving
as the local Indigenous Peoples' Day holiday.
STRATEGIC PLAN:3.3 Friendly Community: Ensure Bozeman continues to welcome diversity
through policies and public awareness.
BACKGROUND:Bozeman's Strategic Plan 3.0 establishes the city's goal of ensuring that it is
a safe and welcoming community. Specifically, Strategic Plan 3.3 explicitly
states that the city will achieve this goal by welcoming diversity through its
policies and promoting public awareness. Ordinance 2100 accomplishes this
goal by recognizing both Juneteenth National Freedom Day and Indigenous
Peoples' Day as local holidays.
Ordinance 2100 recognizes and designates June 19th as Juneteenth National
Freedom Day ("Juneteenth") and designates June 19th as a local holiday in
honor of Juneteenth. Juneteenth honors the passage of the Emancipation
Proclamation, the issuing of General Order No. 3, and the end of slavery in
the United States. Ordinance 2100 also replaces the term Columbus Day
with Indigenous Peoples' Day, and designates the Friday after Thanksgiving
as the local Indigenous Peoples' Day holiday. Indigenous Peoples' Day honors
the contributions and sacrifices of Native communities and Tribal Nations.
Both of these amendments to the Code further the city's goals as set forth in
Strategic Plan 3.3.
UNRESOLVED ISSUES:None identified.
162
ALTERNATIVES:As determined by the Commission.
FISCAL EFFECTS:
The fiscal impact beyond what is already budgeted for personnel is
approximately $10,400. This amount reflects the overtime/holiday pay paid
to city employees required to work on a holiday (i.e. police, fire, and other
essential services) over and above base pay.
Attachments:
Ord. 2100.pdf
Report compiled on: February 23, 2022
163
Page 1 of 6
ORDINANCE 2100
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, RECOGNIZING AND DESIGNATING JUNE 19TH AS JUNETEENTH
NATIONAL FREEDOM DAY, DESIGNATING JUNE 19TH AS THE LOCAL
JUNETEENTH HOLIDAY, REPLACING THE TERM COLUMBUS DAY WITH
INDIGENOUS PEOPLES’ DAY, AND DESIGNATING THE FRIDAY AFTER
THANKSGIVING AS THE LOCAL INDIGENOUS PEOPLES’ DAY HOLIDAY.
WHEREAS, Mont. Const. Art. XI, § 4 mandates to liberally construe the powers of
incorporated cities, and Mont. Const. Art. XI, § 6 of the Montana Constitution expressly authorizes
a local government unit with self-government powers to exercise any power not prohibited by the
constitution, law, or charter; and
WHEREAS, the Bozeman City Charter establishes that the City of Bozeman is a local
government that has adopted self-government powers which must be liberally construed; and
WHEREAS, there is no express prohibition in the Montana Constitution or the Bozeman
City Charter that prevents a local government from establishing a local holiday; and
WHEREAS, there is no express prohibition in Mont. Code Ann. §§ 7-111, 112, or 114 that
prevents a local government from establishing a local holiday; and
WHEREAS, there is no state agency or office directed to establish administrative rules or
oversee the enforcement of a local government establishing a local holiday; and
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Ordinance No. 2100, Designating the Local
Juneteenth and Indigenous Peoples’ Day Holiday
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WHEREAS, the power to establish a local holiday has not been affirmatively delegated
to the State of Montana; and
WHEREAS, the State of Montana observes Columbus Day as a legal, public holiday that
is recognized as a paid, legal holiday on the second Monday in October during which all offices
of state and local government are closed to the public; and
WHEREAS, the State of Montana observes Juneteenth national freedom day on the third
Saturday in June; and
WHEREAS, on June 17, 2021, in honor of the passage of the Emancipation Proclamation
and the issuing of General Order No. 3, and to commemorate the end of slavery in the United
States, the Juneteenth National Independence Day Act became federal law and a paid, legal holiday
during which all federal offices are closed to the public, and
WHEREAS, the City of Bozeman’s Strategic Plan 3.3 establishes the city’s goal of
ensuring that it is a friendly community that “welcome[s] diversity through policies and public
awareness”; and
WHEREAS, the City of Bozeman replaces the term Columbus Day with Indigenous
Peoples’ Day to memorialize and commemorate an accurate representation of the history of
indigenous people in the United States; and
WHEREAS, because it is in the best interest of the citizens of Bozeman to celebrate and
honor the invaluable contributions of diverse cultures and because the City of Bozeman strives to
be an inclusive and welcoming community, the City of Bozeman now clarifies its designated
legal, public holidays.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
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Ordinance No. 2100, Designating the Local
Juneteenth and Indigenous Peoples’ Day Holiday
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Section 1
That a new section of the Bozeman Municipal Code Sec. 2.01.020 is hereby adopted as
follows:
Sec. 2.01.020. – Juneteenth National Freedom Day.
June 19th of every year is recognized as Juneteenth National Freedom Day (“Juneteenth”)
and is a legal, public holiday in the city. The local day of celebration of the Juneteenth holiday
shall occur on June 19th. If this holiday falls on a Sunday, the Monday following is the holiday. If
this holiday falls on a Saturday, the Friday preceding is the holiday. All city offices are closed on
the day of the holiday and employees shall be granted a paid holiday according to city policies.
Section 2
That a new section of the Bozeman Municipal Code Sec. 2.01.030 is hereby adopted as
follows:
Sec. 2.01.030. – Indigenous People’s Day.
The city recognizes the second Monday of October as Indigenous Peoples’ Day, and replaces
the term Columbus Day with the term Indigenous Peoples’ Day. Any reference to Columbus Day
in any provision of this code, ordinance, administrative order, or other official city document shall
be referenced to as Indigenous Peoples’ Day. The city recognizes Indigenous Peoples’ Day as a
legal, public holiday. The local day of observation of Indigenous Peoples’ Day shall occur on the
Friday following Thanksgiving, during which all city offices are closed and employees shall be
granted a paid holiday according to city policies.
Section 3
Except as indicated in Sections 1 and 2 of this ordinance, the City of Bozeman recognizes
and observes all other State legal holidays.
Section 4
The City Manager is authorized to establish policies and procedures to implement this
ordinance.
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Juneteenth and Indigenous Peoples’ Day Holiday
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Section 5
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of
the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force
and effect.
Section 6
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this ordinance shall remain in full
force and effect.
Section 7
Severability.
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 8
Codification.
Sections 1 through 3 of this ordinance shall be codified and included as new sections, as
written above, in Chapter 2, Article 1 of the Bozeman Municipal Code, which is currently entitled
Administration: In General. Bozeman Municipal Code shall be amended to include two new
sections, Sec. 2.01.020 and Sec. 2.01.030, as set forth in Sections 1 and 2 of this ordinance.
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Juneteenth and Indigenous Peoples’ Day Holiday
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Section 9
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 ________________, 20__.
____________________________________
CYNTHIA L. ANDRUS
Mayor
ATTEST:
____________________________________
MIKE MAAS
City Clerk
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
____________________, 20__. The effective date of this ordinance is __________, __, 20__.
_________________________________
CYNTHIA L. ANDRUS
Mayor
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Juneteenth and Indigenous Peoples’ Day Holiday
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ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
169