The URL can be used to link to this page

Home My WebLink About12-09-22 Public Comment - R. Farris-Olsen - Sundance Springs Public Comment, Application 22047From:Rob Farris-Olsen To:Greg Sullivan; Kelley Rischke; Lynn Hyde; Agenda Subject:Sundance Springs Public Comment, Application 22047 Date:Friday, December 9, 2022 9:10:38 AM Attachments:Public Comment 1.pdf 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. Greg, Kelley, Lynn,Please find public comment/concerns for the Sundance Springs Subdivision application, #22047 attached. Robert Farris-Olsen 401 North Last Chance Gulch P.O. Box 557 Helena, Montana 59624 406-442-3261 406-443-7294 FAX This e-mail message is PRIVILEGED AND CONFIDENTIAL communication and is transmitted for the sole and exclusive use ofthe named addressee(s). This communication may not be copied or disseminated except as directed by the named addressee(s). Ifyou receive this communication and you are not a named addressee, please notify us immediately. In such an event, you may notretain a copy of this communication, or any part thereof, and may not retain, preserve, divulge or use in any way whatsoever any ofthe information contained or transmitted herein. John M. Morrison Frederick F. Sherwood David K. W. Wilson, Jr. Linda M. Deola Brian J. Miller Robert Farris-Olsen Scott Peterson Rfolsen@mswdlaw.com Attorneys at Law 401 North Last Chance Gulch P.O. Box 557, Helena, Montana 59624-0557 www.mswdlaw.com Andrée Larose Anne Sherwood (406) 442-3261 (406) 443-7294 FAX December 9, 2022 Via e-mail only Lynn Hyde lhyde@bozeman.net Re: Sundance Springs Subdivision Phase 1B, Commercial Lot 2 Application No: 22047 Dear Ms. Hyde: I am writing on behalf of my clients, Geoffrey Poole and Tim and Nancy Swanson, of Bozeman Montana, regarding the proposed development of Commercial Lot 2 in the Sundance Springs Subdivision, Application No. 22047 (the “Proposal”). As you know, the site is governed by the Sundance Springs Planned Unit Development (PUD). The preliminary PUD application (Z-95125) was approved conditionally by the City Commission in 1996. The Commission issued a Findings of Fact and Order (the “Order”) imposing 40 separate conditions. After approval of the Preliminary Plan, the Applicant submitted an application for a Final Plan (Z-9812). All indications are that Z-9812 was approved, however, at the time this comment is being submitted, the Planning Division does not have a copy of the Approved Final Plan approval for the PUD. REQUIREMENTS FOR APPROVAL The absence of the Approved Final Plan for the PUD creates something of a legal stasis for Application #22047, given the requirements of BMC § 38.430.40.A.3.d, which applies to any approval on a site governed by a PUD, and states: “Issuance of building permits and other development approvals are based on the approved final plan and any conditions of approval.” [Type here] 2 Clearly, the City of Bozeman can not issue any development approval of #22047 based on the Approved Final Plan if it lacks a copy of the Approved Final Plan. We understand that the City may attempt to base approval on the contents of Z-9812, yet BMC § 38.430.40.A.3.d does not provide a provision for approvals to be based on the contents of PUD applications, only on the Approved Final Plan and associated conditions of approval. In fact, the contents of Z-9812 are, by definition, inadequate to reconstruct the PUD requirements. Specifically, BMC 18.54.050.C.3, which governed approval of the PUD’s Application for Final Plan in 1998, states: “Final Plan Approval. The DRC [Development Review Committee] and DRB [Design Review Board] may approve, disapprove, or approve with conditions the proposed planned unit development… (emphasis added).” An application (e.g., Z-9812) therefore lacks any record of the conditions of approval for the Final Plan of the PUD, which are explicitly required to be considered by the City as a basis of development approvals pursuant to BMC § 38.430.40.A.3.d. Until the Approved Final Plan and associated conditions of approval are found, the City can comply neither with the intent nor the letter of BMC § 38.430.40.A.3.d. It follows as a matter of course, then, that the developers similarly cannot meet their legal obligations under BMC 38.100.080.A, which states: “It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations.” Therefore, until such time as the PUD’s Approved Final Plan is located, the City has no path forward to approve a site plan on the Sundance Springs commercial lots because neither the developers nor the City can meet the legal requirements for approval. APPLICABLE DEVELOPMENT REQUIREMENTS In 2020, when reviewing the concept site plan proposal, the City described the site in question as “Zoned B-1, Neighborhood Service District pursuant to the 1998 Sundance Springs Planned Unit Development (PUD) Master Plan” (emphasis added).1,2 Later in that document, the City stated, “The 1998 Sundance Springs PUD designated this property as B- 1, Neighborhood Service District, pursuant to the 1992 zoning ordinance.” 1 See, Page 1, Exhibit 2, Ltr to Marlene and Chris from Susana Montana, Re: Development Review Comments for the Sundance Springs Phase 1B Commercial Lot 2 Conceptual Review Application No. 20298; Sundance Springs Subdivision Phase 1B, Commercial Lot 2 Plat J-257, Geocode No. 06- 0798-25-1-08-14-0000, Bozeman, MT (Oct. 1, 2020) (the “2020 Review”). 2Under the current code the B-1 district is called the Neighborhood Business District. [Type here] 3 More than two months ago, my clients requested a copy of the applicable zoning on the site, expecting to receive a copy of the 1992 zoning ordinance. You replied that the city had not yet determined whether the current or historical zoning applied. Further, if the historical zoning applied, the City also had not determined the specific historical zoning requirements, because small modifications were made to the zoning from 1992 to 1996. You did provide my clients a complete copy of Zoning Code from 1993, but indicated that this code was not definitive. Official records requests to the City by my clients remain outstanding. Given that the City is also unclear on the whereabouts and legal requirements of the Approved Final Plan, the lack of clarity on what zoning applies to the site leaves my clients entirely without the information needed to provide knowledgeable public comment. Under this scenario, the City has erred in starting the clock on the public comment period. To date, the public comment clock continues to run, and City has still not clarified: 1) which zoning applies or 2) what it will consider to be the requirements of the PUD’s Approved Final Plan (if the approval process is forced forward without locating a copy of Approved Final Plan, counter to the requirements of BMC § 38.430.40.A.3.d). The lack of clarity on development requirements means my clients have not had the opportunity examine relevant public documents, or the “reasonable opportunity” to participate. Bryan v. Yellowstone Cty. Elem. Sch. Dist. No. 2, 2002 MT 264, ¶ 55, 312 Mont. 257, 273, 60 P.3d 381, 392 (voiding decision based on violations of right to know and participate). As a remedy, we request that the public comment period be paused until the City provides my office or my clients definitive guidance on the PUD’s Approved Final Plan and applicable zoning, along with copies thereof. At that point in time, we request that the public comment period be extended for at least two additional weeks to give us time to assess #22047 in the context of the PUD and applicable zoning requirements. If my clients are not provided with definitive guidance on the PUD and zoning requirements, along with a reasonable period of time to assess the same, the City must disapprove Site Plan application #22047. Sincerely, Robert Farris-Olsen cc: clients