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HomeMy WebLinkAbout11-11-22 Public Comment - G. Poole - Final Plan for Sundance PUD (Site Plan 22047)From:Geoffrey Poole To:Chris Saunders; Agenda Cc:Lynn Hyde; Ross Knapper; tswanson46@gmail.com; nsswanson04@gmail.com; Rob Farris-Olsen Subject:Final Plan for Sundance PUD (Site Plan 22047) Date:Thursday, November 10, 2022 5:46:14 PM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Chris (Cc Lynn, Ross, Tim, Nancy, Rob): Thank you, Chris, for your distillation of how a PUD final plan comes to exist. Yourdescription squares with and reinforces my understanding of BMC 38.430.040.A.2. I have cc'd "agenda@bozeman.net" so that this letter will be incorporated in the public comment for Site Plan 22047. Please include in the record: 1) the attached email trail between Chris Saunders and me 2) the attached email trail between Lynn Hyde and me 3) the attached photographic evidence of a) the existence of Z-9812 and b) the Master Plan contained therein. I regret to report that there has, apparently, been a catastrophic breakdown in communicationwithin the Planning Division regarding Site Plan 22047. Chris, you stated: Unfortunately, our office has been looking for and has not yet found the approvedfinal plan for Sundance Springs, although it did exist and has been used in the past for project reviews as noted in your inquiry. We are continuing to search. Please know that Ross Knapper (cc'd) has this document (Z-9812) in his possession. On Tuesday, Nov 1, 2022 at 9 am, Ross provided Z-9812 to me, Nancy Swanson, and GloriaLindemeier for our review under his supervision. So that there is no question I reviewed the purportedly missing document, I attach a photo of the file taken during the meeting with Ross. There also appears to be substantive disagreement amongst the staff about the role of Z-9812,which may be part of the reason why Z-9812 has not made its way to Lynn Hyde during the years-long review process for 22047. During my meeting with Ross, while I was reviewing Z-9812, Ross stated to me, unequivocally, that the document I was looking at (Z-9812) was NOT the PUD’s final plan. Chris, however, states that Z-9812 is the Final Plan. Lynn states she isnot aware of the existence of a Final Plan. My attorney, Rob Farris-Olsen (cc'd), will be submitting public comment on behalf of Nancy Swanson, Tim Swanson, and me tomorrow. I incorporate Mr. Farris-Olsen's comments aspart of this comment by reference. In his comments, you will find the results of the research that Rob, Tim, Nancy, Gloria, and I have done. Our research documents that: - The Final Plan of the PUD (Z-9812) contains a Master Plan (photo attached) as required byBMC 18.54.080.D.1 of the BMC in effect when the Sundance Springs PUD was approved; - Because the Master Plan is a required part of the Final Plan, it is not "marketing material." Instead, the Master Plan prescribes, within the Final Plan, building locations, sizes, and stylesthat must be adhered to per 38.430.040.A.3.d, which states "Issuance of building permits and other development approvals are based on the approved final plan and any conditions ofapproval. No city administrative personnel are permitted to issue permits for improvements which are not indicated on the approved final plan." - Exceptions listed in 38.430.040.A.3.d include a mechanism for changes to building style,size, location, and use, which require approval by the City Commission. The Master Plan included in the Final Plan shows the approved location, size, and style of the SINGLEBUILDING allocated to the lot associated with Site Plan 22047. BMC 38.430.040.A.3.d does not allow any mechanism to increase the number of buildings on a site beyond that approvedon the Final Plan. The Master Plan, as a required element of a Phased PUD (BMC 18.54.080.D.1), shows the location, size, and style of buildings associated with the approvedFinal Plan. Site Plan 22047 includes 2 buildings, in a non-approved location and of a size that exceeds that approved in the Final Plan. It also includes a 2000 sq ft outdoor patio, which isnot an improvement indicated on the Final Plan's Master Plan and therefore must be disapproved under 38.430.040.A.3.d. - The covenants are included in Z-9812 and are therefore part of the Final Plan. That they arean integral part of the Final Plan is demonstrated by the fact that the Covenants serve as the only vessel for Design Guidance (required by BMC 18.54.080.D.2) in Z-9812. If theCovenants are not an integral part of the Final Plan, the Final Plan would be non-compliant with BMC 18.54.080.D.2. Therefore, as an integral part of the PUD, enforcement of thecovenants by the city is mandatory under BMC 38.430.040.A.3.d and the Applicant will be subject to enforcement actions for non-compliance with the Final Plan if any aspect of thecovenants is violated (Historical BMC § 18.54.090 and current BMC § 38.430.080). - The introduction to the PUD's covenants makes clear that any references to the Bozeman City Code in the Design Guidance are references to the code "at the time of the execution of[the Covenants]." Thus, the PUD enforces the historical "B-1 Neighborhood SERVICES District" zoning, not the current "B-1 Neighborhood BUSINESS District" zone. This fact isfurther reinforced by repeated reference to "B-1 Neighborhood SERVICES District" within the Covenants integrated into the PUD's Final Plan. Again, please see my attorney's comment letter for the remainder of my public comment,including the reasons why the current BMC requires that the applicant's requested departures from Block Frontage Standards MUST be denied. I hope this information will be helpful in the ultimate denial of Site Plan 22047, which isentirely non-compliant with the Master Plan and Design Guidance contained within the PUD's final plan. Site Plan 22047 also fails to meet the departure criteria for requested departuresfrom the Block Frontage Standards. Chris, thank you for the confirmation that Z-9812 is the final plan for the Sundance Springs PUD. This squares with evidence I have found in prior findings-of-fact from the CityCommission, included in the forthcoming letter from my attorney. Lynn, I appreciate all of the patient replies you have made to my various requests and queries and I am glad that you will now have Z-9812 to incorporate into review of any future site plansubmitted for the site. Ross, thank you for your diligence in finding document Z-9812 and providing Nancy, Gloria, and me the opportunity to review it. Please ensure that several copies are made and pass oneon to Lynn and the other to the appropriate reviewing authority so that the incompatibilities between Site Plan 22047 and the requirements of Z-9812 will be apparent to the decisionauthority. I appreciate the opportunity for public comment and for the help I received. That said, I have had to invest more than 120 hours of research into this issue and hire an attorney in order tocompensate for a basic breakdown in communication in the Planning Division. I am disappointed and frustrated that this level of intervention by city residents was required toensure that a development -- proposed under the governance of a known PUD -- would not be approved until the development was compared against the requirements of the PUD's FinalPlan. My trust and confidence in the Planning Division has been shaken. I hope that the source of this breakdown in communication will be investigated and procedures will be put in place sothat such an oversight can not happen again. Sincerely, Geoffrey Poole Bozeman, MT On 11/10/22 14:43, Chris Saunders wrote: Mr. Poole, Your question has some layers to it. I will try to line them out clearly. I was notpart of the review of the initial part of the Sundance Springs development. 1) A PUD review process has three elements; concept, preliminary, and final. The Preliminary PUD (PUDP) element of the process is the time when the publichearings are held and the City can require changes or conditions of approval. The City Commission is the decision maker and their action sets the bounds of theapproval. 2) The final element of the PUD review (PUDF) is documentation andverification that all conditions of approval or other requirements have been met to the extent possible. Some conditions or requirements may apply to future orcoordinated development actions such as subsequent subdivisions. The City Commission authorizes the staff to approve the PUDF in staff’s role as codeadministrator. The municipal code sets specific processes for these elements of review. Administrative practices such as application forms fill out the PUDP andPUDF processes. 3) The exact nature of a PUD can have quite a bit of variation which in turnchanges the nature of the final PUD. Due to this complexity a PUDF may be comprised of a mix of drawings and multiple documents. With SundanceSprings, as with all PUDs, the staff conducted a review to verify that the Commission’s requirements for approval were met. 4) The file for the PUDF application is Z-9812. It contains the required PUDF application form and various maps and documents to show compliance with theCommission required conditions of approval as identified in the findings of fact for Sundance Springs PUD dated January 22, 1996. Some items, like completionof the annexation, are related and required but separate actions. The Z-9812 file folder includes various processing materials such as routing memos which are notpart of the final plan. The “final plan” is the compilation of approved drawings and documentsdemonstrating compliance with the conditions of approval and code requirements applicable to the preliminary PUD. The final plan includes and is identified by astamped and planning director signed statement that the compilation of materials is the final plan. A final PUD plan is not recorded with the Gallatin County Clerkand Recorder as a single thing although some elements may be recorded such as a consent to conditions. 5) Unfortunately, our office has been looking for and has not yet found the approved final plan for Sundance Springs, although it did exist and has been usedin the past for project reviews as noted in your inquiry. We are continuing to search. I hope this is helpful. Regards, Chris Saunders From: Geoffrey Poole <gpoole@eco-metrics.com> Sent: Tuesday, November 1, 2022 4:30 PM To: Chris Saunders <csaunders@BOZEMAN.NET>Subject: Re: Final Plan for Sundance PUD CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Chris: I'm writing to you because I know that you have a deephistory with the planning department and I think you may have even been a witness to (and involved in?) thecreation of the Sundance Springs PUD. I note that you were involved in a prior effort to change the PUD to accommodate a residence that wasaccidentally built in the 20-ft setback associated with the PUD. For instance, you provided testimony to the CityCommission: https://weblink.bozeman.net/WebLink/DocView.aspx? id=2283&page=5&dbid=0&repo=BOZEMAN&searchid=5a388159-86ad-4805-bc53-5aa0e91881ea and authored the associated staff report: https://weblink.bozeman.net/WebLink/DocView.aspx?id=58471&page=3&dbid=0&repo=BOZEMAN&searchid=1d489fcb-7916-443a-9758-094bca814f54 which made extensive reference to the requirements ofPUD. The code that was in effect at the time (1993 BMC18.54.050.C.3) and the current code (BMC38.430.040.A.3) both require review of an applicationfor a "final plan" as the last step in approval of aPUD. My interpretation is that the approved application forthe final plan BECOMES the final plan for the PUD uponapproval. per BMC 38.430.040.A.3.c, but Lynn Hyde canneither confirm nor deny if this is the case. Can you shed any light on this for me? Your staffreport (linked above) cites the PUD extensively,saying things like "no change from original PUD" or"consistent with the requirements of the PUD." Youeven cite the setbacks required by the covenants asbeing associated with the PUD (Page 5, point 10 instaff report linked above). In light of the confusion about all this (see Lynn'semail below), can you tell me precisely what documentdescribes the requirements of the PUD? In otherwords, what document represents the PUD's "FinalPlan?" Document Z-9812 contains the application for FinalPlan for the Sundance PUD that was approvedadministratively. It is derived from Z-95125, whichwas the preliminary application conditionally approvedby the City Commission in January of 1996, but alsointegrates the Commission's approval conditions. Ibelieve z-9812 lays out the requirements of the PUD,but I have been told by other planning staff that Z-9812 is not the "Final Plan." Can you help shed some light on all this? Whatdocument did you reference as the Final Plan of thePUD in your staff report (linked above) in order to establish the requirements of the PUD? Thanks, Geoff Poole On 10/27/22 12:34, Lynn Hyde wrote: I don’t know what the Final Plan was that was referenced. I too have the final plat, but no other plan that I can see that was filed in 1998. I’m curious if that was either an error stated or error in minutes, or if there is still a plan we have yet to locate that was filed. I have combed through thousands of files on the clerk and recorder and certainly may have missed something. I’m going to be looking through the clerk and recorders documents again, and will certainly look closely for 1998 recordings. Lynn Hyde | Development Review Planner, Community Development City of Bozeman | 20 East Olive St. | P.O. Box 1230 | Bozeman, MT 59771 406.579.1471 | lhyde@bozeman.net | www.bozeman.net From: Geoffrey Poole <gpoole@eco-metrics.com> Sent: Tuesday, October 25, 2022 6:57 PM To: Lynn Hyde <lhyde@BOZEMAN.NET>; Ross Knapper <rknapper@BOZEMAN.NET> Subject: Final Plan for Sundance PUD CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Lynn and Ross: At the bottom of page 3 in this document: https://weblink.bozeman.net/WebLink/DocView.aspx? id=3410&page=3&dbid=0&repo=BOZEMAN&searchid=1d489fcb-7916-443a-9758-094bca814f54 There is a reference to the "Final Plan" for the Sundance PUD being filed in July of 1998. Is that "Final Plan" available onlineanywhere? I have a copy of the "Final Plat..." Thanks, -Geoff City of Bozeman emails are subject to the Right to Know provisions of Montana’s Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law. City of Bozeman emails are subject to the Right to Know provisions of Montana’s Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. 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