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21419 Findings of Fact and Order for Lot 1, Block 1 of the Parklands Major
Subdivision Preliminary Plat
Public Hearing Date:
Community Development Board acting as the Planning Board met on Monday, February
7, 2022 at 6:00 pm.
Link: https://bozeman.granicus.com/player/clip/236?view_id=1&redirect=true
City Commission meeting was held on Tuesday, March 1, 2022 at 6:00 pm via WebEx.
Link: https://bozeman.granicus.com/player/clip/246?view_id=1&redirect=true
Project Description: A major preliminary plat application for a proposed eight (8) single-
household residential lot subdivision within Lot 1, Block 1 of the Parklands at Village
Downtown Subdivision on 1.201 acres (52,331 square feet).
Project Location: The subject property is zoned R-4 residential high-density district. The
property is located within a Planned Unit Development (PUD) known as the Village
Downtown. The property is legally described as Lot 1, Block 1, The Parklands at Village
Downtown Subdivision located in the NW ¼ Section 8 (S08), Township Two South (T02
S), Range Six East (R6 E), P.M.M., City of Bozeman, Gallatin County, Montana.
Development Review Committee (DRC) Recommendation: On January 25, 2022, the DRC
determined that the application conformed to the Bozeman Municipal Code (BMC) and
was sufficient for continued review with the staff-recommended conditions and code
provisions.
Community Development Board (CDB) Recommendation: On February 7, 2022, the CDB,
serving as the City’s Planning Board, reviewed and considered the application materials,
public comment, and all the information presented, recommended approval of Lot 1,
Block 1 of the Parklands at the Village Downtown Preliminary Plat Major Subdivision
with conditions recommended by staff and all applicable code provisions.
City Commission Decision: On March 1, 2022, having reviewed and considered the application
materials, public comment, Community Development Board recommendation, and all the
information presented, the City Commission moved to adopt the findings presented in the
staff report for application 21419 and approve the subdivision with conditions and
applicable code provision. The motion for approval failed, and with no other motions
raised by the City Commission, the major subdivision was denied.
City Commission Approved Motion: Having reviewed and considered the application
materials, public comment, and all the information presented, I hereby adopt the findings
presented in Section 7 of this staff report for application 21419 and move to authorize the
Mayor to sign the Findings of Fact and Order on behalf of the City Commission, denying
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21419 Findings of Fact for Lot 1, Block 1 of The Parklands at Village Downtown Subdivision Preliminary Plat
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the Lot 1, Block 1 of the Parklands at the Village Downtown Major Subdivision
Preliminary Plat as minimum zoning regulations are not met.
Report Date: March 7, 2022
Staff Contact: Nakeisha Lyon, AICP, Associate Planner
Karl Johnson, Project Engineer
Agenda Item Type: Action (Quasi-judicial)
EXECUTIVE SUMMARY
Unresolved Issues.
There are no unresolved issues with this application.
Project Summary
This report is based on: (1) the January 6, 2022 revised plat maps; (2) the November 23,
2021 revised application documents; (3) the January 25, 2022 Development Review
Committee recommendation for conditions and code provisions; (4) the February 6, 2022
Community Development Board recommendation; (5) the February 15, 2022 staff report to the
City Commission which evaluated the application’s code compliance; (6) public comment
received to date; (7) staff recommendations of conditions of approval and code provisions; (8) all
information provided to the City Commission at their March 1, 2022 public hearing on this
application; and (9) staff evaluation of the Montana Code Annotated (MCA) subdivision statutes
and relevant Bozeman Municipal Code (BMC) subdivision provisions described in this report.
The Department of Community Development received a Preliminary Plat Application on
November 23, 2021 requesting to subdivide 1.201 acres to create 8 single-household lots. The
proposed subdivision is located within the existing Village Downtown Planned Unit
Development (PUD). The preliminary plat (19135) for the overall subdivision for the Parklands
at Village Downtown was approved by the City Commission in August 2019 with final plat
(21167) approval occurring in October 2021. Access to the individual lots are provided by a
public street and an improved alley as allowed by the Bozeman Municipal Code (BMC).
The Parklands at the Village Downtown has a park and common open space which serves these
proposed lots with pedestrian connections to existing trails adjacent to the subject property.
Infrastructure to serve this subdivision have been proposed to be installed or were previously
financially guaranteed as allowed by the BMC during the platting process for the overall
subdivision.
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21419 Findings of Fact for Lot 1, Block 1 of The Parklands at Village Downtown Subdivision Preliminary Plat
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As a provision of Sec. 38.220.030, BMC, the applicant submitted a pre-application plan with
required submittal materials, and waivers, for review prior to the formal subdivision preliminary
plat application submittal to the City. The Development Review Committee (DRC) completed a
subdivision pre-application plan review on July 16, 2021 and provided the associated
memorandum for their review on July 20, 2021 via email to the applicant and representative of
record. Several comments were noted regarding compliance with standards including the
following pertaining to minimum density requirements:
The zoning district of R-4 requires a minimum density of eight (8) dwelling units per net
acre. Based on the overall net acreage of the Parklands at Village Downtown
Subdivision, twenty-three (23) dwelling units must be provided to meet the minimum
density requirements. Block 2 is proposed to be subdivided into nine (9) single-family
residential lots, with previous indications that Block 1 was for multi-family development,
which is not depicted within this submittal. Fourteen (14) dwelling units must be
provided within Block 1 in order to meet the minimum requirements for density.
Accessory dwelling units do not count towards the minimum density calculations. Please
address this issue accordingly.
In response to this comment, the representative of record requested a Director’s Interpretation,
on July 27, 2021, to formally determine whether an accessory dwelling unit (ADU) may count
towards meeting the zoning district’s minimum density requirements. On August 30, 2021, Staff
provided the following determination via email to the applicant and representative of record, per
specific communication from the former Community Development Director, Martin Matsen:
In regards to the Community Development Director’s Interpretation for whether
Accessory Dwelling Units (ADUs) may be counted towards meeting the applicable
zoning district’s minimum density requirements submitted on July 27, 2021, at this time,
per Marty Matsen’s direction, Staff will be moving forward with the existing staff
interpretation that ADUs do not count towards meeting this requirement. This existing
interpretation will be further addressed within future updates to the Bozeman Municipal
Code.
Nonetheless, per Matsen’s direction, given the unique development pattern within the
Parklands and the Village Downtown, ADUs would be a great additional housing type
within the area to provide potentially more affordable housing options for our
community. Therefore, staff is amenable to allowing the ADUs to count towards the
minimum density requirements as part of this development application. In order to do so,
a condition of approval will be included as part of the preliminary plat and final plat
entitlements.
The condition will state the following (this is subject to change per legal review):
accessory dwelling units (ADUs) may count towards meeting the minimum density
requirements applicable to the subject property, only if each lot will have an ADU that is
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21419 Findings of Fact for Lot 1, Block 1 of The Parklands at Village Downtown Subdivision Preliminary Plat
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permitted separately from the principal structure. The City of Bozeman will not issue
building permits for any of the lots unless proportionate ADUs are built.
Upon this administrative direction, the applicant and representative of record submitted a
Preliminary Plat application on November 23, 2021 with the DRC finding the application to be
sufficient for continued review with recommended conditions and code provisions on January
25, 2022. The subdivider did not request any subdivision or zoning variances with this
application. The City did not receive any written public comment on the application.
The CDB acting in their capacity as the Planning Board considered compliance of the application
with the applicable review criteria and growth policy on February 7, 2022, and voted 7 to 2 to
recommend approval of this Preliminary Plat Major Subdivision to the City Commission with
applicable conditions and code provisions. During the public comment period related to this
application of the CDB public meeting, one public comment was received related to the
proposed subdivision which noted concerns with the subdivision meeting parklands
requirements, and the condition of accessory dwelling units being utilized to meet density
requirements. Additionally, the CDB members expressed their concerns with the accessory
dwelling unit condition of approval and enforcement of the development of these units, use to
contribute to diverse rental or housing stock, accessory dwelling unit size limitation, density
requirements, and wetlands. Further details and staff’s analysis of these comments are included
below in this report.
In response to the CDB concerns, staff revised the ADU condition of approval to include
clarification regarding the building permitting process for the ADUs and the enforcement
through utilization of certificate of occupancies to ensure the construction of the dwelling units
as described below:
a. Accessory dwelling units (ADUs) may count towards meeting the minimum
density requirements for the Residential High Density zoning district (R-4) that is
applicable to the lots indicated within this proposed development, only if: i. An ADU is constructed on each lot; ii. An attached ADU is permitted through the Building Department under the same building permit for the principal structure;
iii. A detached ADU is permitted through the Building Department separately from the principal structure; and, iv. Applicable building permits for the principal structure and detached ADU are applied for and approved concurrently. The City of Bozeman will not issue certificates of occupancy for any of the principal structures on the
lots unless an ADU has also been constructed.
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21419 Findings of Fact for Lot 1, Block 1 of The Parklands at Village Downtown Subdivision Preliminary Plat
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The CDB proceedings may be viewed here:
https://bozeman.granicus.com/player/clip/236?view_id=1&redirect=true
After receiving an adequacy determination on the preliminary plat application on January 31,
2022, the applicant requested expedited review per 76-3-623 Montana Code Annotated (MCA)
and represented that the project meets all applicable requirements for such review. Under the
expedited subdivision review, the final decision for the preliminary plat must be made in 35
working days after adequacy of the application. Therefore, the deadline for a final decision is
March 16, 2022.
As the final review authority, the City Commission is required to approve, conditionally approve
or deny the subdivision application by March 16, 2022, unless there is a written extension from
the developer, not to exceed one year. The City Commission public hearing to consider this
preliminary plat was held on for March 1, 2022 at 6:00 pm via WebEx. No member of the public
spoke at the hearing. After the City Commission reviewed and considered the application
materials, staff report, advisory review board recommendations, previous public comment, and
all the information presented, they made alternative findings to those in the staff report and voted
2 to 3 to approve the motion. The motion failed, and with no other motions raised by the City
Commission, the major subdivision was denied.
A summary of the Commission’s findings can be found below in Section 7 – Findings of Fact,
Order of Appeal and Provisions. Analysis of the Commission’s alternative findings can be found
in Section 6 – Staff Analysis and Findings. Video of the City Commission hearing can be found
at this link: https://bozeman.granicus.com/player/clip/246?view_id=1&redirect=true
Alternatives
1. Approval of the Findings of Fact and Order as drafted;
2. Approval of the Findings of Fact and Order with modifications;
3. As determined by the City Commission
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TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................................ 2
Unresolved Issues. .............................................................................................................. 2
Project Summary ................................................................................................................. 2
Alternatives ......................................................................................................................... 5
SECTION 1 – MAP SERIES .......................................................................................................... 7
SECTION 2 – REQUESTED VARIANCES ............................................................................... 12
SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL .......................................... 12
SECTION 4 – CODE REQUIREMENTS .................................................................................... 13
SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS ............................................ 15
SECTION 6 – STAFF ANALYSIS AND FINDINGS ................................................................ 15
Applicable Subdivision Review Criteria, Section 38.240.150., BMC.............................. 15
Montana Code Annotated (MCA) 2021, Title 76. Land Resources and Use. .................. 19
38.220.060 Documentation of compliance with adopted standards ................................. 26
SECTION 7 – FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS ......................... 28
APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY..................................... 31
APPENDIX B – DETAILED PROJECT DESCRIPTION .......................................................... 35
APPENDIX C – NOTICING AND PUBLIC COMMENT ......................................................... 35
APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF ................................. 36
FISCAL EFFECTS ....................................................................................................................... 36
ATTACHMENTS ......................................................................................................................... 36
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SECTION 1 – MAP SERIES
Exhibit 1 –Zoning Map
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Exhibit 2 – Community Plan 2020 Future Land Use
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Exhibit 3 – Preliminary Plat
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Exhibit 4 – Preliminary Plat Conditions of Approval
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Exhibit 5 – Trail and Park Proximity
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SECTION 2 – REQUESTED VARIANCES
The subdivider did not request any subdivision or zoning variances with this preliminary plat
application.
SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL
The following conditions of approval and code provisions satisfy City and relevant State
requirements as well as site-specific mitigation for potential adverse impacts associated with
development of the proposed subdivision. The conditions of approval are in addition to the
required code provisions identified in this report. The conditions are specific to the preliminary
plat application. Staff has considered the impacts as identified in the staff analysis and
application materials and finds that the conditions of approval are deemed reasonably related and
roughly proportionate to the development of this subdivision.
1. In accordance with 38.240.100, BMC, the applicant has chosen review of this subdivision
under the terms of 76-3-623 MCA; therefore, applicant is obligated to complete the
construction of the approved subdivision in accordance with the approved application and
any applicable requirements in Montana law, administrative rules, municipal code, and
design standards.
2. The final plat must contain the following notations on the conditions of approval sheet. Several of these conditions are included on this sheet, however, may need to be revised to
update the language:
a. Ownership of all common open space lots, areas and trails, and responsibility of maintenance thereof and for city assessments levied on the common open space lands are that of the property owners’ association. Maintenance responsibility includes, in addition to the common open space and trails, all vegetative ground
cover, boulevard trees and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets and as adjacent to public parks, greenway corridors or other common open space areas.
b. The property owner’s association must be responsible for maintenance of stormwater infrastructure located within the common open spaces. All areas
within the subdivision that are designated herein as common open space including trails are for the use and enjoyment by residents of the development and the general public.
c. The property owners’ association shall be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all common
open space lots, areas and trails.
d. The City of Bozeman shall be responsible for the maintenance of boulevard trees along Village Downtown Boulevard.
e. All plans and specifications for public infrastructure will be stored at the City’s Engineering Office located at 20 E. Olive Street, Bozeman, Montana 59715.
f. The proposed development falls within a known area of high groundwater. No crawl spaces or basements may be constructed with the future development of the site, unless a professional engineer registered in the State of Montana certifies that
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the lowest point of any proposed structure is located above the seasonal high
groundwater level and provides supporting groundwater data prior to release of
building permit. In addition, sump pumps are not allowed to be connected to the sanitary sewer system or drainage system unless capacity is designed into the drainage system to accept the pumped water. Water from sump pumps may not be discharged onto streets, such as into the curb and gutters where they may create a
safety hazard for pedestrians and vehicles.
g. The orientation of buildings located on Lot 1 and Lot 8 shall match the orientation of Lots 2 – 7.
h. Accessory dwelling units (ADUs) may count towards meeting the minimum density requirements for the Residential High Density zoning district (R-4) that is
applicable to the lots indicated within this proposed development, only if: i. An ADU is constructed on each lot; ii. An attached ADU is permitted through the Building Department under the same building permit for the principal structure; iii. A detached ADU is permitted through the Building Department separately
from the principal structure; and, iv. Applicable building permits for the principal structure and detached ADU are applied for and approved concurrently. The City of Bozeman will not issue certificates of occupancy for any of the principal structures on the lots unless an ADU has also been constructed.
SECTION 4 – CODE REQUIREMENTS
The following are procedural requirements not yet demonstrated by the preliminary plat and
must be satisfied at the final plat. Without these corrections the application does not meet
required standards.
1. Sec. 38.100.080 – Compliance with regulations required. a. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or
state law.
2. Sec. 38.240.150. Final plat application. a. The plat shall conform to all requirements of the Bozeman Municipal Code and the Uniform Standards for Final Subdivision Plats (24.183.1107 ARM) and must be
accompanied by all required documents, including certification from the City Engineer that as-built drawings for public improvements were received, a platting certificate, and all required and corrected certificates. i. The Final Plat application must include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent) and one (1)
digital copy.
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ii. The Gallatin County Clerk & Recorder’s office has elected to continue the
existing medium requirements of 2 mylars with a 1½” binding margin on
one side for both plats and COS’s. iii. The Clerk and Recorder will file the new Conditions of Approval sheet as the last same sized mylar sheet in the plat set.
3. Sec. 38.240.460. Acceptance of dedications. a. Please edit the Certificate of Director of Public Works to be the following: i. CERTIFICATE OF ACCEPTANCE OF DEDICATIONS 1. I, Director of Public Works, City of Bozeman, Montana, do hereby accept the dedication to the City of Bozeman for the public use of
any and all lands shown on the plat as being dedicated to such use. DATED this ______ day of _______, ________. (Signature), Director of Public Works. 4. Sec. 38.240.540. Certificate of Governing Body. a. Please add the following certificate to be the plat: i. CERTIFICATE OF GOVERNING BODY APPROVING PLAT 1. I, Director of Community Development, City of Bozeman, Montana, do hereby certify that the accompanying plat has been
duly examined and has found the same to conform to the law and approves it. DATED this ______ day of _______, ________. (Signature), Director of Community Development.
5. Sec. 38.410.060. - Easements. a. The final plat must provide all necessary utility easements and they must be described, dimensioned and shown on each subdivision block of the final plat in their true and correct location.
6. Sec. 38.410.130 - Water Adequacy.
a. Subject to subsections B and C, prior to final approval by the review authority of
development occurring under this chapter or chapter 10, the applicant must offset
the entire estimated increase in annual municipal water demand attributable to the
development pursuant to subsection D.
i. Payment-in-lieu of water rights must be made for the lots prior to final plat
approval.
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SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS
The Development Review Committee (DRC) determined the application was sufficient for
continued review and recommended approval with conditions and code provisions on January
25, 2022 based on staff analysis and findings as described below in Section 6 of this report.
On February 7, 2022, the Community Development Board, acting as the Planning Board
pursuant to Sec. 38.240.130.A.3, BMC held a public meeting on the proposed application. The
public meeting was held via WebEx. The Community Development Board recommended
approval of the Preliminary Plat subdivision subject to the staff-recommended conditions of
approval and all applicable code provisions.
The public hearing date for the City Commission’s consideration of this application was held
Tuesday, March 1, 2022 at 6:00 pm via WebEx. The City Commission voted 2 to 3 on a motion
to approve the preliminary application. Based on this vote, the motion for approval failed, and
with no other motions raised by the City Commission, the major subdivision was denied.
SECTION 6 – STAFF ANALYSIS AND FINDINGS
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, plans, public comment, and all other materials available during the
review period. Collectively this information is the record of the review. The analysis in this
report is a summary of the completed review.
Applicable Subdivision Review Criteria, Section 38.240.150., BMC.
In considering applications for subdivision approval under this title, the advisory boards and City
Commission shall consider the following:
1) The general review requirements per 38.240.100 must be met.
Staff Evaluation: The applicant submitted a subdivision pre-application plan on May 19, 2021,
and the Development Review Committee (DRC) completed the associated review on July 16,
2021. With the recent change in state legislation to accommodate expedited subdivision review,
the applicant elected to proceed with the expedited subdivision review after adequacy of the
preliminary plat application on January 31, 2022. Per MCA 76-3-604, the element and
sufficiency review of the application must be completed within 35 working days after adequacy
of the application, which would be on or before March 16, 2022.
2) Public comments or documents presented at or prior to the City Commission’s
consideration of a plat constitutes new information.
Staff Evaluation: No new information had been presented to the City Commission prior to their
March 1, 2022 decision. At that hearing, the staff report, staff presentation, and applicant
representative’s presentation was entered into the record. In the staff report, public comment
received to date was described.
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3) The basis for the City Commission's decision to approve, conditionally approve or deny
the subdivision must be whether the subdivision application, public hearing if required,
planning advisory boards and agencies advice and recommendation and additional
information demonstrates that development of the subdivision complies with the Bozeman
Municipal Code (BMC), the City's growth policy as described in the Bozeman Community
Plan, the Montana Subdivision and Platting Act and other adopted state and local
ordinances, including, but not limited to, applicable zoning requirements.
Staff Evaluation: The Preliminary Plat meets these criteria as noted within this section of this
report. However, without the City Commission’s support of the accessory dwelling units as a
component of the minimum density requirements, the proposed subdivision does not comply
with Section 38.320.030, BMC. Additionally, without counting ADUs toward density
minimums, the preliminary plat application would not qualify for expedited review under MCA
76-3-623 as the proposed subdivision does not comply with zoning regulations adopted pursuant
to MCA 76-2-203 or 76-2-304.
City Commission Findings: As the City Commission concluded that the utilization of accessory
dwelling units does not meet the minimum density requirements, this preliminary application
does not comply with requirements of MCA 76-3-501 or local subdivision regulations found in
Chapter 38, Article 3 of the Bozeman Municipal Code. Specifically, the application does not
comply with zoning regulations regarding the minimum density requirements. Sec.
38.320.020.B, BMC which requires that new residential development must provide a minimum
net density in applicable zones, as set forth in the form and intensity standards tables within this
division (referring to Table 38.320.030.C. A minimum density is required to support efficiency
in use of land and provision of municipal services, and to advance the purposes and goals of this
chapter and the adopted growth policy. Density may be achieved by averaging lot sizes over an
entire development. The criterion is not met because the overall Parklands at the Village
Downtown Subdivision must provide an additional 14 dwelling units in the proposed
development, along with the nine existing single household dwelling lots for a total of 23
dwelling units to meet the minimum density requirements.
4) Consider written comments from appropriate public agencies, utilities or other members
of the public.
Staff Evaluation: On January 25, 2022 the DRC found the application sufficient for continued
review with staff recommended conditions and code provisions. The CDB acting in their
capacity as the Planning Board considered compliance of the application with the applicable
review criteria and growth policy on February 7, 2022, and voted 7 to 2 to recommend approval
of this Preliminary Plat Major Subdivision to the City Commission with applicable staff
recommended conditions and code provisions. During the public comment period related to this
application of the CDB public meeting, one public comment was received related to the
proposed subdivision expressing concerns with the subdivision meeting parklands requirements,
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and the condition of accessory dwelling units being utilized to meet density requirements.
Additionally, the CDB members denoted their concerns with the accessory dwelling unit
condition of approval and enforcement of the development of these units and use to contribute to
diverse rental or housing stock, accessory dwelling unit size limitation, density requirements, and
wetlands. Further details and staff’s analysis of these comments are included within pages 15-27
of this report.
In response to the CDB concerns, staff revised the ADU condition of approval to include
clarification regarding the building permitting process for the ADUs and the enforcement
through utilization of certificate of occupancies to ensure the construction of the dwelling units
as described below:
a. Accessory dwelling units (ADUs) may count towards meeting the minimum density requirements for the Residential High Density zoning district (R-4) that is applicable to the lots indicated within this proposed development, only if: v. An ADU is constructed on each lot;
vi. An attached ADU is permitted through the Building Department under the
same building permit for the principal structure; vii. A detached ADU is permitted through the Building Department separately from the principal structure; and, viii. Applicable building permits for the principal structure and detached ADU
are applied for and approved concurrently. The City of Bozeman will not
issue certificates of occupancy for any of the principal structures on the lots unless an ADU has also been constructed.
5) The City Commission shall consider the following: relevant evidence relating to the
public health, safety and welfare; other regulations, code provisions or policies in effect in
the area of the proposed subdivision; the recommendation of the advisory bodies; any
relevant public comment; and individual phases, existing conditions, and changed
circumstances for any phase reviewed under 76-3-617 MCA.
Staff Evaluation: Please see staff’s evaluation as noted below on pages 15-27 of this report. The
subdivision infrastructure and utilities were previously established in a single phase as a
component of the underlying Parklands at the Village Downtown Subdivision.
City Commission Findings: As the City Commission did not support the utilization of
accessory dwelling units to meet the minimum density requirements, this preliminary application
does not comply with zoning regulations providing minimum density requirements for the R-4
zoning district. Table 38.320.030.C. denotes that the minimum density requirements is 8
dwelling units per net acre. The overall Parklands at the Village Downtown Subdivision is has a
net acreage of 2.88 acres. The overall minimum density that must be met for this subdivision is
23 minimum dwelling units. There are 9 existing single household lots within the existing
subdivision. Therefore, Block 1, Lot 1, must be subdivided through this preliminary plat process
into a minimum of 14 additional single household lots to meet the minimum density standards.
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6) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the
certification established in section 38.240.170, the city commission may conditionally
approve or deny a proposed subdivision as a result of the water and sanitation information
provided pursuant to section 38.220.050.A.9. or public comment received pursuant to MCA
76-3-604 on the information provided pursuant to section 38.220.050. A conditional
approval or denial must be based on existing subdivision, zoning, or other regulations that
the city commission has the authority to enforce.
Staff Evaluation: Please see staff’s evaluation on pages 15-27 of this report. This review criteria
is not applicable as the subdivision does qualify under MCA 76-4-125 regarding water and waste
services which is to be provided by the local government.
7) The city may not approve a proposed subdivision if any of the features and
improvements, including well isolation zones, of the subdivision encroach onto adjoining
private property in a manner that is not otherwise provided for under Title 76, chapters 3
or 4, MCA., or if the well isolation zone of any proposed well to be drilled for the proposed
subdivision encroaches onto adjoining private property unless the owner of the private
property authorizes the encroachment. For the purposes of this section, "well isolation
zone" has the meaning provided in 76-4-102, MCA.
Staff Evaluation: Please see staff’s evaluation as noted below regarding surface water on page
25.
8) The city commission may require the developer to design the subdivision to reasonably
minimize potentially significant adverse impacts identified through the review required by
this chapter. The city commission must issue written findings to justify the reasonable
mitigation required by this chapter. The city commission may not unreasonably restrict a
landowner's ability to develop land, but it is recognized that in some instances the
unmitigated impacts of a proposed development may be unacceptable and will preclude
approval of the plat. When requiring mitigation under this subsection, the city commission
must consult with the developer and must give due weight and consideration to the
expressed preference of the developer.
Staff Evaluation: Please see staff’s evaluation as noted on pages 15 to 27. Required mitigation to
minimize potentially significant adverse impacts occurred during the platting process for the
underlying Parklands at the Village Downtown Subdivision.
9) Federal or state governmental entity input. If a federal, BMC or state governmental
entity submits a written or oral comment or an opinion regarding wildlife, wildlife habitat,
or the natural environment relating to a subdivision application for the purpose of assisting
a governing body's review, the comment or opinion may be included in the governing
body's written statement under this section only if the comment or opinion provides
scientific information or a published study that supports the comment or opinion. A
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governmental entity that is or has been involved in an effort to acquire or assist others in
acquiring an interest in the real property identified in the subdivision application must
disclose that the entity has been involved in that effort prior to submitting a comment, an
opinion, or information as provided in this subsection.
Staff Evaluation: No such comment was received for this application.
Montana Code Annotated (MCA) 2021, Title 76. Land Resources and Use.
1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and
Platting Act
The preliminary plat has been prepared in accordance with the surveying requirements of the
Montana Subdivision and Platting Act by a Professional Engineer registered in the State of
Montana. As noted in the code requirements, the final plat must comply with State statute,
Administrative Rules of Montana, and the Bozeman Municipal Code.
2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana
Subdivision and Platting Act
The final plat must comply with the standards identified and referenced in the BMC. The
subdivider is advised that unmet code provisions, or code provisions not specifically listed as a
condition of approval, do not, in any way, create a waiver or other relaxation of the lawful
requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report
identify conditions and code provisions necessary to meet all municipal standards. The listed
code requirements address necessary documentation and compliance with standards. Therefore,
upon satisfaction of all conditions and code corrections the subdivision will comply with the
subdivision regulations.
3) Compliance with the local subdivision review procedures provided for in Part 6 of the
Montana Subdivision and Platting Act
The Bozeman Community Development Board acting as the Planning Board public meeting and
the City Commission public hearing were properly noticed in accordance with the Bozeman
Municipal Code. Based on the recommendation of the Development Review Committee (DRC)
and other applicable review agencies, as well as any public testimony received on the matter, the
City Commission made the final decision on the subdivider’s request.
The subdivider requested review of this subdivision under the terms of 76-3-623 MCA as
authorized in 38.240.100. Subdivisions reviewed under the terms of 76-3-623 may not include
variances or other instances of lack of compliance to standards and procedures.
The Department of Community Development received a Preliminary Plat Application on
November 23, 2021 requesting to subdivide 1.201 acres to create 8 single-household lots. The
DRC met on December 8, 2021 with formal comments submitted on December 16, 2021. The
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project was deemed inadequate for review by the DRC and the review halted until revised
materials were provided.
Revised materials were submitted with formal intake on January 6, 2022. On January 25, 2022,
the DRC found the application sufficient for continued review and recommends the conditions of
approval and code provisions identified in this staff report.
The City scheduled public notice for this application for publication in the legal advertisements
section of the Bozeman Daily Chronicle on Thursday, February 3, 2022 for postings on Sundays,
February 6 and February 13, 2022. The applicant posted public notice on the subject property on
February 7, 2022. The applicant sent public notice to physically adjacent landowners via
certified mail, and to all other landowners of record within 200-feet of the subject property via
first class mail, on February 7, 2022.
On February 3, 2022, this major subdivision staff report was completed and forwarded with a
recommendation of approval subject to code provisions for consideration to the Community
Development Board acting as the Planning Board.
No written public comments have been received on this application as of the writing of this
report.
Community Development Board Meeting Public Comments & Board Discussion:
During the public comment period of the February 7, 2022 Community Development Board
meeting, one comment was received which denoted concerns with the subdivision meeting
parklands requirements, and the condition of accessory dwelling units being utilized to meet
density requirements. The commenter discussed that the underlying subdivision for the Village
Downtown provide cash in lieu of parklands rather than a park to serve the neighborhood and the
linear park provided in addition to the cash in lieu amount is not adequate in meeting the intent
of park dedication for this subdivision. In reference to staff’s discussion on walkability to
existing parks, the commenter stated that existing parks such as Lindley Park is not considered
by the neighbors as proximate to the subject property with the distance traveled on foot being
more age appropriate for older children only. Additionally, the commenter noted that there is
limited justification for the inability of the applicant to meet density requirements and the
utilization of accessory dwelling units may led to more vacation rentals. The commenter further
stated that there is no mechanism to ensure the accessory dwelling units are obtainable as in
affordable to low or moderate income persons.
During the Community Development Board’s discussion, members denoted issues with the
accessory dwelling unit condition of approval and enforcement of the development of these
units, accessory dwelling unit size limitation, density requirements, and wetlands.
Staff’s Response and Further Analysis:
Parklands:
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The Parks Department reviewed the preliminary plat as part of the DRC and found that the
applicant has provided adequate parklands for the eight proposed lots for single household
development.
During the platting process for the underlying Parklands at the Village Downtown Subdivision, a
linear park and trail corridor were dedicated to provide required parkland for the 9 proposed
single household lots, and the multi-household dwellings that were originally anticipated for
future development on Lot 1, Block 1. The land area required for park dedication for the
underlying plat was 0.16 acres which is based on the existing 9 single household lots with a
density of 5.42 units per acre with a required 0.03 acre per unit dedication requirement. The
unknown density for Lot 1, Block 1 was calculated based on the density cap of 8 dwelling units
per acre for the R-4 zoning district and 1.21 net residential acres which has a required 0.29 acres
for this portion. The applicant would be required to provide a 0.45 acre park. However, already-
dedicated the linear park and trail corridor exceed this threshold at 0.63 acres. Please be aware
that park dedication is not required for accessory dwelling units as the assessment is based on net
residential density and ADUs have not counted towards this calculation.
The Recreation and Parks Advisory Board recommended approval of the parks master plan. The
parks master plan was subsequently approved by the City Commission concurrently as a
component of the Preliminary Plat for application 19135. This linear park provides a more
approximate open space and passive recreation opportunity to the subdivision rather than Lindley
Park and other parks in the area, and addresses concerns regarding distance traveled and safety of
children. Please see Exhibit 5 in the Map Series of Section 1 for a visualization of parks, trails,
and proposed amenities within this area.
Accessory Dwelling Units – Density and Enforcement:
Regarding the commenter’s discussion on the limited justification for the applicant’s proposal to
meet the density requirement by including accessory dwelling units, the intent of the direction
provided by the former Community Development Director to include these incidental units was
in support of contributing to the diversity of the existing housing stock in a location that is
viewed as infill development rather than new development as this lot is a remaining component
of an existing subdivision.
Based on the density calculations, six additional lots are required in the subdivision to meet the
minimum density requirement for the overall subdivision based on the minimum 8 dwelling units
per acre for the R-4 zoning. Rather than provide the additional lots, the applicant proposes to
provide each principal structure with an accessory dwelling unit, which provides 8 accessory
dwelling units. The applicant is able to change the intent of their development from what was
previously expressed in past applications through the platting process.
The Board identified issues with enforcement regarding how the City would ensure the accessory
dwelling units would be built. The Board also denoted concern with requiring a separate permit
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to build the accessory dwelling units. Typically, attached accessory dwelling units are permitted
with the principal structure under one building permit, but separate detached accessory dwelling
units receive a permit separately from the principal.
To ensure the enforcement of the accessory dwelling unit conditions, and to address these
concerns indicated by The Board, the condition of approval associated with utilizing the
accessory dwelling unit as a component of the minimum density requirement has been revised to
clarify the differences between attached and detached structures, and to denote that a certificate
of occupancy would not be provided to the property owner for the principal structure unless and
until the accessory dwelling unit was built. Additionally, a deed restriction will be required
during the final platting process against the proposed lots which would restrict final occupancy
permits for the principal structures until the accessory dwelling unit is constructed. The Planning
Division will work closely with the Building Division to ensure enforcement of this provision
accordingly.
One board member denoted concerns regarding the size limitations of accessory dwelling units
which are currently a maximum of 600 square feet for detached accessory dwelling units, and a
limitation of one-third of the principal structure’s total area for an attached accessory dwelling
unit. Size limitations of ADUs are regulated within Sec. 38.360.040, BMC and would require a
text amendment to change the size limitations.
Affordability and Short Term Rentals:
The City of Bozeman does not have any mechanisms to ensure that the ADUs are rented to long
term renters or that they are rented at affordable rates. The intent of the proposal is to provide an
alternative to address the minimum density requirement for the subject property. Additionally,
short term rentals are allowed within this area which can be either Type 1 or Type 2, which
require that the principal structure must be owner occupied. Individual property owners must
meet the provisions within Sec. 38.360.260, BMC in order to pursue this option the short term
rental must be registered with the Community Development Department.
Wetlands:
A general concern regarding the wetlands within the area was expressed by the Board. The
overall Parklands at the Village Downtown Subdivision accounted for the displacement of any
wetlands on the subject property through the purchase of wetland credits through a wetland bank
in the Madison Valley as well as wetland delineation, review and approval of applicable
application materials. An individual Clean Water Act 404 permit was requested and approval for
the changes has been granted by the US Army Corps of Engineers. A 401 permit was obtained
from the Montanan Department of Environmental Quality also in the platting process of the
overall Parklands at the Village Downtown Subdivision.
The majority of the subdivision is located in uplands and has been previously disturbed over the
years. Any floodplain and wetland impacts have occurred within the existing Front Street ROW
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pertaining to the construction of the street which is allowable by the BMC. Overall, this
proposed subdivision will have minimal impacts on the natural environment. A floodplain permit
is required for any disturbance occurring within the floodplain, if applicable.
The Community Development Board proceedings may be viewed here with general discussion
beginning at 24:35, staff presentation beginning at 25:40, Board discussion beginning at 39:31,
applicant presentation beginning at 47:48, public comment period beginning at 57:00, and the
Board’s further discussion and vote beginning at 101:00.
4) Compliance with Chapter 38, BMC and other relevant regulations
Community Development staff and the DRC reviewed the preliminary plat against all applicable
regulations and the application complies with the BMC and all other relevant regulations with
code corrections. This report includes Conditions of Approval and required code provisions as
recommended by the DRC, which were considered by the City Commission. All municipal water
and sewer facilities will conform to the regulations outlined by the Montana Department of
Environmental Quality and the requirements of the Design Standards and Specifications Policy
and the City of Bozeman Modifications to Montana Public Works Standard Specifications.
Water/Sewer – Adequate water and sewer capacity exists to serve the eight lots created by this
subdivision as these services were provided during construction internal to the site for the overall
Parklands at Village Downtown Subdivision. Per code requirement 4, cash-in-lieu of water
rights must be provided prior to final plat approval. Please note that cash-in-lieu of water
rights is not accessed on the proposed accessory dwelling units included within this
application. Irrigation for open spaces/park is required and was previously accounted for in
the overall Parklands at Village Downtown Subdivision. Landscaping and irrigation was
financially guaranteed during the final plat through an Improvements Agreement for the
overall subdivision.
Utilities – Utilities to serve the eight lots were previously established during the subdivision
process for the overall Parklands at Village Downtown Subdivision. Please note that the
applicant previously installed 8 individual utility connections prior to the review and approval of
the proposed subdivision within this application. These private utilities were installed
underground. The City standards requires a minimum of 10’ utility easements in the front yards
in conformance with Sec. 38.410.060 of the BMC.
Streets – All public rights-of-ways (ROW) to serve this subdivision were dedicated with
the overall Parklands at the Village Downtown Subdivision and have been constructed. Audubon
Way is a 30-foot alley ROW that will serve the eight proposed lots in Block 1 and the existing 9-
lots in Block 2. Audubon Way is privately maintained by the Property Owners Association
(P.O.A.) that serves the overall subdivision. All maintenance is already provided by the City of
Bozeman for the existing public streets adjacent to the subject property (Village Downtown
Boulevard).
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Access to the site will be provided from North Broadway Avenue to Village Downtown
Boulevard and through the new Audubon Way, from where the residents will access their
driveways. North Broadway Avenue is classified as a collector street and Village Downtown
Boulevard is classified as a local street.
In 2003, a Traffic Impact Study (TIS) was previously prepared for original Village Downtown
Subdivision. Based on this TIS and ITE trip generation, the proposed lots will generate less than
100 peak- hour trips, and, therefore a revised TIS is not required with this subdivision.
There is an existing 10’ asphalt trail which connects the Village Downtown Blvd ROW through
the Front Street ROW and the newly built 60’ wide linear park to the southeast of these lots. A
new 6’ wide gravel trail runs adjacent to the subject property and back to the Village Downtown
Blvd to provide a trail network that surrounds the overall subdivision entirely.
The roundabout at the end of Village Downtown Blvd was expanded during the overall
Parklands at the Village Downtown Subdivision platting process and serves as a traffic calming
measure for local vehicular activity in the neighborhood.
Police/Fire – The City of Bozeman’s Police and Fire emergency response area includes this
subject property. This subdivision does not impact the City’ ability to provide emergency
services to the subject property. The necessary addresses will be provided to enable 911 response
to individual homes prior to recording of the final plat. Fire protection standards require the
installation for fire hydrants at designated spacing which was previously established during the
overall Parklands at the Village Downtown Subdivision processing. Audubon Way will provide
adequate circulation for fire engines and other emergency vehicles.
Stormwater - Stormwater within the subdivision will be conveyed via surface gutter flow to curb
inlets to then be piped underground through storm drain piping to a stormwater detention pond
located to the north of the lots in Common Open Space A. All stormwater infrastructure has been
previously installed during the overall Parklands at the Village Downtown Subdivision platting
process which accounted for the future development of these proposed lots.
Parklands – The overall Parklands at the Village Downtown Subdivision accounted for the
dedication of land to meet its park mitigation requirement and a final park plan was approve
during this platting process. However, again, ADUs do not require parkland dedication so no
additional parkland was calculated or provided for them.
Natural Environment –The overall Parklands at the Village Downtown Subdivision accounted
for the displacement of any wetlands on the subject property through the purchase of wetland
credits through a wetland bank in the Madison Valley as well as wetland delineation, review and
approval of applicable application materials. An individual Clean Water Act 404 permit was
requested and approval for the changes has been granted by the US Army Corps of Engineers. A
401 permit was obtained from the Montanan Department of Environmental Quality also in the
platting process of the overall Parklands at the Village Downtown Subdivision.
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The majority of the subdivision is located in uplands and has been previously disturbed over the
years. Any floodplain and wetland impacts have occurred within the existing Front Street ROW
pertaining to the construction of the street which is allowable by the BMC. Overall, this
proposed subdivision will have minimal impacts on the natural environment. A floodplain permit
is required for any disturbance occurring within the floodplain, if applicable.
Wildlife and Wildlife Habitat – Impacts to wildlife and wildlife habitat were accounted for in the
overall Parklands at the Village Downtown Subdivision. The existing linear park to serve the
subdivision will also act as a buffer to any further wildlife impacts. There are no known
endangered or threatened species located on the subject property.
Public Health and Safety – The intent and purpose of the regulations within Chapter 38 of the
BMC are to protect the public health, safety and general welfare. The subdivision has been
reviewed by the DRC which has determined that it is in general compliance with the title. Code
provisions deemed necessary to ensure compliance are noted throughout this staff report, and
were previously denoted within the approval of the overall Parklands at the Village Downtown
Subdivision platting process. All subdivisions must be reviewed against the criteria listed in 76-
3-608.3.b-d, MCA.
The project area is subject to a high water table. High groundwater can be overcome for utility
installation with proper techniques. However, the ongoing impacts on individual homes can be
substantial if groundwater enters crawl spaces or basements. Use of sump pumps in private
homes often contributes to excessive flows into sewer or storm drainage systems which reduces
their designed effectiveness. Once constructed, it is very difficult to retrofit homes to remove
crawl spaces or basements. Therefore, the general notes on the Conditions of Approval Sheet of
the preliminary plat prohibits crawl spaces and full basements. This will remove the need for
sump pumps, illicit discharges of water into the storm drainage systems, and reduce impact on
nearby wetlands.
5) The provision of easements to and within the subdivision for the location and installation
of any necessary utilities
The final plat will provide and depict all necessary utilities and required utility easements, which
were established during the overall Parklands at the Village Downtown Subdivision platting
process. Code requirement No. 3, requires that all easements, existing and proposed, must be
accurately depicted and addressed on the final plat and in the final plat application. Public
utilities are located within dedicated street right of ways and within easements located on the
proposed lots.
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6) The provision of legal and physical access to each parcel within the subdivision and the
notation of that access on the applicable plat and any instrument transferring the parcel
The final plat will provide legal and physical access to each lot within the subdivision. All of the
proposed lots will have frontage on a public street and a private alley constructed to City
standards with lot frontage meeting minimum standards as shown on the preliminary plat.
38.220.060 Documentation of compliance with adopted standards
The Development Review Committee (DRC) completed a subdivision pre-application plan
review on May 19, 2021 and no variances were requested. The applicant requested and was
granted waivers for Surface Water, Floodplains, Groundwater, Geology, Soils, Slopes,
Vegetation, Wildlife, Historical Features (no longer required per the Legislative Session
Subdivision Amendment Changes), Agriculture, Agricultural Water User Facilities, Educational
Facilities (no longer required per the Legislative Session Subdivision Amendment Changes),
Land Use, Parks & Recreation Facilities, Neighborhood Center Plan, Utilities, Miscellaneous,
Affordable Housing, and Lighting Plan. These requirements were previously satisfied during the
submittal of the Preliminary Plat for the overall Parklands at the Village Downtown Subdivision
and were therefore granted waivers by staff.
Staff offers the following summary comments on the documents required with Article
38.220.060, BMC.
38.220.060.A.1 – Surface water
This subdivision will not significantly impact surface water which are near the subject property
but not within the proposed area to be platted. Therefore, minimal impacts to surface waters are
identified. There are no natural or artificial water systems running through or affecting the
property. The applicant requested a waiver of this supplemental information which was granted.
38.220.060.A.2 - Floodplains
A floodplain has been identified lying to the eastern side of the subdivision within the Front
Street ROW. This ROW will be developed as an alley which has a narrower width than the
standard street design requirements and will therefore have less of an impact on the floodplain.
The applicant requested a waiver of this supplemental information which was granted.
38.220.060.A.3 - Groundwater
The groundwater in this area is height due to nearby wetlands and elevation of the area having
minimal differentiation. A condition of approval on the overall Parklands at the Village
Downtown Subdivision will restrict the construction of basements and crawl spaces. This has
been included as a general note on the conditions of approval sheet of this proposed plat. The
applicant requested a waiver of this supplemental information which was granted.
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38.220.060.A.4 - Geology, Soils and Slopes
This subdivision will not significantly impact the geology, soils or slopes. The soil present is
Blackmore Silt Loam which was identified during the overall Parklands at the Village
Downtown Subdivision platting process. With proper engineering and architectural design, any
limitation on use of this soil type can be overcome. The applicant requested a waiver of this
supplemental information which was granted.
38.220.060.A.5 - Vegetation
Lain fallow has been identified on the subject property with it’s presence for over a decade. Most
of the vegetation on the subject property is grass with clusters of trees near the subject property
boundaries. The wetlands present on the site have been or will be removed as denoted in the
primary review criteria through appropriate permitting and mitigation efforts by the applicant.
Noxious weeds are present and a weed management plan has been submitted to the Gallatin
County Weed District and approved. The applicant requested a waiver of this supplemental
information which was granted.
38.220.060.A.6 - Wildlife
See discussion in the primary review criteria above. The applicant requested a waiver of this
supplemental information which was granted.
38.220.060.A.7 - Agriculture
This subdivision will not impact agriculture. The applicant requested a waiver of this
supplemental information which was granted.
38.220.060.A.8 - Agricultural Water User Facilities
This subdivision will not impact agricultural water user facilities. No irrigation facilities are
present on the lots. No water body alterations are proposed. The applicant requested a waiver of
this supplemental information which was granted.
38.220.060.A.9 - Water and Sewer
See discussion in the primary review criteria above.
38.220.060.A.10 - Stormwater Management
See discussion in the primary review criteria above.
38.220.060.A.11 - Streets, Roads and Alleys
See discussion in the primary review criteria above.
38.220.060.A.12 – Non-Municipal Utilities
See discussion in the primary review criteria above.
38.220.060.A.13 - Land Use
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The subject property is zoned R-4, High Density Residential District and the use proposed is
exclusively residential. Please refer to Appendix A for more information. The applicant
requested a waiver of this supplemental information which was granted.
City Commission Findings:
The City Commission concluded compliance with Sec. 38.220.060.A.13. was not provided as the
proposal for the inclusion of ADUs within the minimum density requirements does not meet the
provisions of the R-4 zoning district denoted in Sec. 38.300.100.E. Additionally, the utilization
of these types of units conflicts with goal N-1.4 which promotes the development of ADUs in
developed areas as an opportunity to increase density and housing inventory rather than on a
greenfield, or vacant parcel of land.
38.220.060.A.14 - Parks and Recreation Facilities
See discussion in the primary review criteria above. The applicant requested a waiver of this
supplemental information which was granted.
38.220.060.A.15 - Neighborhood Center Plan
A neighborhood center or plan is not required per Sec. 38.410.020.A. of the BMC. The applicant
requested a waiver of this supplemental information which was granted.
38.220.060.A.16 - Lighting Plan
All street lights installed are in conformance with the City’s specification requirements which
were previously accounted for during the overall subdivision platting process for the Parklands at
the Village Downtown which included the creation of a special improvements lighting district
(SILD). The applicant requested a waiver of this supplemental information which was granted.
38.220.060.A.17 - Miscellaneous
No additional impacts or hazards have been identified or are anticipated based on the analysis
contained in this report. The applicant requested a waiver of this supplemental information which
was granted.
38.220.060.A.19 - Affordable Housing
This application does not rely on incentives authorized in 38.380. Therefore, no analysis is
required. The applicant requested a waiver of this supplemental information which was granted.
SECTION 7 – FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS
A. PURSUANT to Chapter 38, Article 2, BMC, and other applicable sections of Chapter 38,
BMC, public notice was given, opportunity to submit comment was provided to affected
parties, and a review of the preliminary plat described in these findings of fact was
conducted.
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B. The purposes of the preliminary plat review were to consider all relevant evidence
relating to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to
evaluate the proposal against the criteria and standards of Chapter 38 BMC, BMC; and to
determine whether the plat should be approved, conditionally approved, or denied.
C. The matter of the preliminary plat application was considered by the City Commission at
a public hearing on March 1, 2022 at which time the Department of Community
Development Staff reviewed the project, submitted and summarized the conditions of
approval, clarified unresolved issues and summarized the public comment submitted to
the City prior to the public hearing.
D. The applicant acknowledged understanding and agreement with the recommended
conditions of approval and code provisions.
E. The City Commission requested public comment at the public hearing on March 1, 2022
and received no public comments.
F. It appeared to the City Commission that all parties and the public wishing to examine the
proposed preliminary plat and offer comment were given the opportunity to do so. After
receiving the recommendation of the relevant advisory bodies established by Section
Chapter 38, BMC, considering the discussion had by advisory bodies, and considering all
matters of record presented with the application and during the public comment period
defined by Chapter 38, BMC, the City Commission has found that the proposed
preliminary plat does not comply with the requirements of the Bozeman Municipal Code
because the accessory dwelling units may not be included to meet code standards
regarding minimum density requirements. Therefore, being fully advised of all matters
having come before them regarding this application, the City Commission makes the
following decision.
G. For the reasons stated above and within Appendix A, the preliminary plat does not meet
the criteria of Chapter 76 of the Montana Code Annotated, nor does it meet all
requirements of Chapter 38 of the Bozeman Municipal Code. As detailed in the analysis
section above, the preliminary plat application relied on the Director’s indication that he
would support accessory dwelling units counting towards the minimum density
requirements. The City Commission concluded that counting ADUs toward minimum
density requirements was inconsistent within the minimum density standards of the R-4
zoning district. Without including the ADUs as a component of this provision, the
minimum density requirements for the subject property are not met. Therefore, the City
Commission denied the preliminary plat application.
H. The basis of the Commission’s decision includes the entire record of this matter,
including the applicant’s materials and presentation, public comment, advisory body
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review, public comment, the staff report and presentation, and the Commission’s
discussion and questions.
I. These findings of fact satisfy the requirements in 38.240.150.D, BMC and Montana Code
Annotated section 76-3-620.
J. This City Commission order may be appealed by bringing an action in the Eighteenth
District Court of Gallatin County, within 30 days after the adoption of this document by
the City Commission, by following the procedures of Section 76-3-625, MCA.
DATED this ______ day of ___________, 2022
BOZEMAN CITY COMMISSION ATTEST:
____________________________ ____________________________
Cynthia L. Andrus Mike Maas
Mayor City Clerk
APPROVED AS TO FORM:
___________________________
GREG SULLIVAN
City Attorney
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APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses:
The subject property is zoned R-4, Residential High Density District. The intent of the R-4
residential high density district is to provide for the development of high-density residential
development through a variety of housing types within the city with associated service functions.
This purpose is accomplished by:
1. Providing for minimum lot sizes in developed areas consistent with the established
development patterns while providing greater flexibility for clustering lots and mixing
housing types in newly developed areas.
2. Providing for a variety of compatible housing types, including single and multi-
household dwellings to serve the varying needs of the community's residents.
3. Allowing office use as a secondary use, measured by percentage of total building area.
Use of this zone is appropriate for areas adjacent to mixed-use districts, commercial districts,
and/or served by transit to accommodate a higher density of residents in close proximity to jobs
and services.
The subject property is designated as Urban Neighborhood. 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.
Staff Evaluation:
This proposed subdivision is suited to implement the Urban Neighborhood by providing lots that
will support a variety of housing types including single household units and accessory dwelling
units (ADUs) in an existing developed residential area that is predominantly detached single-
household units. Lot 1, Block 1 was previously denoted for multi-household development,
however, the applicant changed the intent of the development during this preliminary plat
process. R-4 has a minimum density requirement of eight dwellings per net acre. Based on the
acreage of the overall subdivision, 14 dwellings would be required within this proposed
preliminary plat in order to meet the minimum density requirements. In support of providing
more housing options, ADUs have been accounted for within the minimum density requirements
which will provide for eight single-household dwellings and eight accessory dwelling units, one
per lot. A general note is included in the condition of approval sheet regarding the construction
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of the ADUs in order to ensure that these units are built. The proposed subdivision is also located
in a central area with relatively quick access to a variety of goods and services.
City Commission Findings:
The City Commission found that the preliminary plat application does not meet the minimum
density standards of Sec. 38.320.030.C for the R-4 zoning district. The City Commission
concluded that the single household lots with the addition of accessory dwelling units does not
provide the development of high density residential units nor a variety of housing types in an
area proximate to multimodal transportation, mixed-use and commercial districts, and close
proximity to jobs and services. Additionally, the City Commission denoted that the preliminary
plat application does not meet the Growth Policy designation of Urban Neighborhood, which
promotes urban density homes in a variety of types and intensities. This designation allows, in
limited instances, a lower gross density in areas of subdivisions where site constraints and/or
natural features such as floodplains or steep slopes are present. Though the applicant’s
representative briefly denoted the grade change in the area which influenced the discussion to
change the intent of the subject property’s development from past applications, an in-depth
analysis of these constraints was not presented to the City Commission nor included in the
application materials.
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Adopted Growth Policy Designation:
Table 4 of the Bozeman Community Plan 2020 shows the correlation between future land use
map designations and implementing zoning districts. (See below for the Table)
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The growth policy encourages development to be walkable, which is defined in the glossary as:
Walkable. A walkable area has:
• A center, whether it’s a main street or a public space.
• People: Enough people for businesses to flourish and for public transit to run frequently.
• Parks and public space: Functional and pleasant public places to gather and play.
• Pedestrian design: Buildings are close to the street, parking lots are relegated to the back.
• Schools and workplaces: Close enough that walking to and from home to these destinations is
realistic.
• Complete streets: Streets designed for bicyclists, pedestrians, and transit.
With the complexity of features needed to create a walkable environment, no one site is likely to
provide all the needed elements. The additional density will help provide for element two with
potential for additional persons in the area. The subdivision has a newly construction 60’ wide
linear park which provided for element three. Pedestrian design, element four, and complete
streets, element 5 are also accounted for with the design of the single household dwelling units to
orientate to Village Downtown Boulevard with driveways along the alley access on Audubon
Way and Front Street. Complete streets are promoted through sidewalk and trail access along the
Village Downtown Boulevard with connections throughout the subdivision, existing trail system
and linear park.
The site has a Walk Score of 53, a Transit score of 24, and a Bike Score of 63. Average walk
score for the city as a whole is 47 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. This site is an infill development, surrounded by existing residential
uses with complimentary uses such as schools, parks, grocery stores, and employment
opportunities within a relatively short distance. There are no adopted development standards
relating to the walk score.
The proposed development is has its own linear park with connections to the Northside/Village
Trail. Lindley Park is approximately 0.30 miles from the proposed subdivision, which provides a
variety of recreational opportunities from an extension trail system, picnic opportunities, and a
playground. The closest grocery store is the Heebs Fresh Market (now Town and Country East
Main) which is roughly 0.40 miles from the proposed development. The two closest schools are
the Hawthorne Elementary School and Whittier School which are both within a half-mile to a
mile, respectively, from the proposed development. The Streamline Purpleline has a stop on East
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Main St. near Lindley Park which is rough 0.30 miles away from the proposed development.
There are also a variety of commercial, retail, and office uses along East Main Street, a relatively
short distance from the proposed development which may provide employment opportunities
nearby.
The proposed subdivision meets the following Bozeman Community Plan 2020 goals:
N-1.4 Promote development of accessory dwelling units (ADUs)
N-1.10 Increase connectivity between parks and neighborhoods through continued trail and
sidewalk development. Prioritize closing gaps within the network.
M-1.11 Prioritize and construct key sidewalk connections and enhancements.
City Commission Findings:
The City Commission found that N-1.4. was not met as the intent of this goal is to foster the
development of ADUs in areas of town in which are already established or developed as a way to
achieve more density rather than on a vacant parcel of land with site constraints that can be
addressed through proper engineering and design mechanisms.
APPENDIX B – DETAILED PROJECT DESCRIPTION
Project Background and Description
A preliminary plat application by the applicant and owner, Mike Delaney, 101 E. Main Street,
Suite D., Bozeman, MT 59715 who is represented by Drew Kirsch, C&H Engineering &
Surveying, Inc., 1091 Stoneridge Dr., Bozeman, MT 59718.
APPENDIX C – NOTICING AND PUBLIC COMMENT
Notice was provided at least 15 and not more than 45 days prior to the close of the City
Commission public hearing per BMC 38.220.420, The City scheduled public notice for this
application on February 3, 2022 for publication in the legal advertisements section of the
Bozeman Daily Chronicle on Sunday, February 6 and Sunday, February 13, 2022. The applicant
posted public notice on the subject property on February 7, 2022. The applicant and/or
representative sent public notice to physically adjacent landowners via certified mail, and to all
other landowners of record within 200-feet of the subject property via first class mail, on
February 7, 2022.
No written public comments have been received at the time this report was compiled. A
commenter spoke at the February 7, 2022 Community Development Board public meeting.
Please see pages 13-16 for staff’s analysis of the comment as well as further information
regarding the Board’s discussion.
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APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF
Owner: Mike Delaney, 101 E. Main Street, Suite D., Bozeman, MT 59715
Applicant: Mike Delaney, 101 E. Main Street, Suite D., Bozeman, MT 59715
Representative: Drew Kirsch, C&H Engineering & Surveying, Inc., 1091 Stoneridge Dr.,
Bozeman, MT 59718
Report By: Nakeisha Lyon, AICP, Associate Planner
Staff Engineer: Karl Johnson, PE, Project Engineer
FISCAL EFFECTS
No unusual fiscal effects have been identified. No presently budgeted funds will be changed by
this subdivision.
ATTACHMENTS
The full application and file of record can be viewed digitally at
https://www.bozeman.net/government/planning/using-the-planning-map, select the “Project Documents Folder” link and navigate to application #21419, as well as digitally at the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715.
Application materials – Available through the Laserfiche archive, the full file is linked below.
https://weblink.bozeman.net/WebLink/Browse.aspx?startid=232508&cr=1 This project can be viewed on the Community Development Viewer interactive map directly with this link:
https://gisweb.bozeman.net/Html5Viewer/?viewer=planning&FILE_NUMBER=21-419
Public Comment: https://weblink.bozeman.net/WebLink/Browse.aspx?id=229372&dbid=0&repo=BOZEMAN
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, and plans, public comment, and all other materials available during
the review period. Collectively this information is the record of the review. The analysis is a
summary of the completed review.
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