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Home My WebLink About01-03-23 Public Comment - R. Farris-Olsen - Sundance Springs Subdivision, App 22047John 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 January 3, 2023 Via Email Lynn Hyde c/o Kelley Rischke Attorney for the City of Bozeman KRischke@BOZEMAN.NET Re: Sundance Springs Subdivision, Application No. 22047 Dear Kelley and Lynn: I am writing with respect to the City’s recent decision to “pause” the review of site plan #22047 at the request of the developer. My clients oppose this decision because it violates important provisions of Bozeman’s Unified Development Code (UDC) and creates unacceptable legal hardship for my clients. As you are aware, the public comment period for Site Plan #22047 closed on December 13, 2022. As such, the deadline to issue an order approving, approving with conditions, or denying the application was due no later than December 28, 2022. It is my understanding that the developer requested a “pause” on the administrative review process. This request was made on December 22, 2022. However, on December 30, 2022, the developer then submitted a second letter challenging the public comment that my clients and others provided. In response to the December 30, 2022, letter, the City asked for clarification on whether the “pause” was being lifted and explained that additional public comment would be allowed. As of this morning, January 3, 2023, we were informed that the applicant wanted to “unpause” the hold. It is my belief that this “pausing” and “unpausing” are not allowed by the UDC. The City received all the information needed to act on the application, and it was reviewed for adequacy pursuant to UDC § 38.230.090.D.2. And it was reviewed by the appropriate review bodies, given recommendations by those bodies, and subject to public comment. Once these actions were completed, the City had ten working days to make a decision. UDC § 38.230.090.E.1.a. Importantly, the language in UDC § 38.230.090.E.1. is compulsory. Namely, once public comment closes, the City Planner “must act to approve, approve with conditions, or deny an application within ten working days of the close of the public comment.” This language is non-discretionary, and there is no mechanism to alter this ten day period. Swearingen v. State, 2001 MT 10, ¶ 6, 304 Mont. 97, 99, 18 P.3d 998, 1000 (“‘shall’ means ‘must’ and that use of the term ‘shall’ connotes a mandatory obligation.”). In other words, the City was required to issue a decision after ten working days. If the developer had withdrawn the application, the City would not need to make a decision because there would not be an application to consider. Here, though, the applicant did not withdraw the application, but instead chose to request to “pause” the consideration. Such a pause is not allowed and would violate the requirements of UDC § 38.23.090.E. For that reason, the Planner should immediately deny the application, with permission to reapply. 1 The City’s non-compliance with UDC § 38.320.090.E.1.a places demonstrable, unlawful burden on my clients, who have invested many hundreds of hours and incurred thousands of dollars in legal fees to meet the public comment requirements and procedural deadlines spelled out in the UDC for the public comment period. Within the timelines for public comment provided by the UDC, my clients and I have already informed the city that: 1. The city is non-compliant with the UDC if it approves the site plan without considering the conditions of PUD approval contained in the (now missing and unrecoverable) Approved Final Plan of the Sundance Springs PUD; 2. Site plan #22047 is non-compliant with the Master Plan contained in the final application for the PUD; 3. Site plan #22047 is non-compliant with the design standards, setbacks, foundation design, building sizes, parking requirements, and other requirements of the PUD, as outlined in the covenants incorporated into the final application for the PUD; 4. The request departures from the block frontage standards do not meet the required approval criteria outlined in the UDC; 5. Parking reductions claimed within Site plan #22047 mean that the proposed parking lots provide only 66% of the parking demand for the buildings, which conflicts with the City Commission’s order that prohibits spillover parking onto residential streets (an approval condition of the PUD). 1 The applicant has also admitted that its lighting plan is non-compliant. 6. The Commercial Lot Owner’s association referenced in the PUD’s covenants no longer exists and cannot be legally reconstituted. Therefore, the developers have no mechanism by which they can meet the approval requirements laid out in the PUD’s final plan. 7. The City Commission has already ordered that residential housing be place on the site in the event that commercial development becomes infeasible. Allowing the developer to delay the decision in order to review and respond to public comment fabricates an arbitrary ad hoc process that is not described or allowed under the UDC. Now, my clients will incur additional time and expense in reviewing and replying to additional information submitted during the “pause,” which is not a prescribed part of the review process under the UDC. Further, the decision to allow the application to be “paused” represents a threat to my client’s right to participate in the process, because it places that right at the whim of the City’s administrative staff who, upon granting the request to “pause” the application then operate outside the scope of the UDC and without guidance regarding the City’s obligations to my clients (or, for that matter, to the developers). Instead, City staff must make up the rules governing the remainder of the approval process on the fly. For instance: • During the “pause”, can the developer offer changes to the site plan? Can the developer offer responses to public comments to City staff? Can the developer provide novel interpretations of the UDC? • If the developer cannot provide additional information to City staff, what is the purpose of the “pause” • If the developer can offer revisions to the application while it is “paused,” what is the City’s obligation for public notice regarding changes? What is the process for public participation? How much time must be allowed? Can the City approve the project without additional public comment? Does the City have the authority to approve a project after the mandated 10-day period has expired? The answers to these questions are unknowable because the UDC provides no provisions for a “pause” nor any rules under which such a period operates. The UDC provides no guidance on what the developer can do while the application is “paused”, what the city can do, and what the obligations to the public need to be met. Therefore, by creating an ad hoc “paused” status for Site Plan #22047, the City fabricates a legal context wherein my clients have no understanding of how their right to participate is guaranteed by the City and no recourse (except a lawsuit) to establish whether the City has provided them adequate opportunity to participate. Ultimately, the City failed to act within the required 10 days from the end of the public comment period. Given the demonstrated procedural errors by the City and the numerous incompatibilities of the application with the PUD, the orders of the City Commission, and the other requirements of the UDC, the City should deny the application, or treat it as withdrawn. Doing so would allow the applicant to resubmit and the City to follow the proper processes required by the UDC. Thank you for considering, and please do not hesitate to reach out with any questions, concerns or simply to discuss the matter. Sincerely, Robert Farris-Olsen cc: client