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HomeMy WebLinkAbout01-23-23 Public Comment - M. Quinto on behalf of J. Goetz - Letter re Zone Text AmendmentFrom:Myriam Quinto To:Agenda Cc:Jim Goetz Subject:Letter re Zone Text Amendment Date:Monday, January 23, 2023 11:36:04 AM Attachments:2023-01-23 Goetz - Community Dev. Board.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. Good morning, Please find attached a letter from Jim Goetz regarding the Zone Text Amendment. Thank you. Best,Myriam Myriam Quinto Legal Assistant Goetz, Geddes & Gardner, P.C.35 North Grand | P.O. Box 6580 Bozeman, MT 59771-6580T: (406) 587.0618 | F: (406) 587.5144 NOTICE: This electronic mail transmission may contain confidential or Attorney-Client privileged communications. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, please delete it from your system without copying it and notify the sender by reply e- mail. James H. Goetz J. Devlan Geddes Trent M. Gardner Kyle W. Nelson Jeffrey J. Tierney Katherine B. DeLong Henry J.K. Tesar Hannah S. Willstein GOETZ, GEDDES & GARDNER, P. C. Attorneys at Law 35 North Grand (zip 59715) P. O. Box 6580 Bozeman, MT 59771-6580 Telephone (406) 587-0618 Facsimile (406) 587-5144 jim@goetzlawfirm.com January 23, 2023 Via Email Only Community Development Board (Acting as Zoning Commission) City of Bozeman agenda@bozeman.net Re: Zone Text Amendment to Preclude Fraternities and Sororities in Certain Residential Areas Dear Members of the Community Development Board: My wife, Jill Davenport, and I reside in the university neighborhood at 1019 S. 3rd. This letter supports the application for a zone text amendment which would restore the prohibition on fraternities and sororities in R-1, R-2, and other residential neighborhoods. This is a response to the memorandum from Tom Rogers, Senior Planner and Anna Bentley, Community Development Director. The Fox is Guarding the Henhouse We are disappointed that Planner Tom Rogers is one of the authors of the Staff Report. The reason for our disappointment is that, as we understand it, it was he who put us in this situation in the first place, by modifying Table 38.08.020 in 2018, to remove “fraternities and sororities” as a separate classification of use, allowable in some zones and not in others. This was an arbitrary move made in stealth—there was no notice to the public when he did this. The neighborhood’s initial application to the Bozeman City Commission, contained a poll of the neighborhood. Over 140 residents were asked the question: were you aware of this modification in zoning regulations? It was unanimously, no. Further, the Staff Report purports to apply nine criteria that are required to be considered for any zone change pursuant to Montana law (§76-2-304, MCA). I agree that these factors must be considered. The irony here, however, is, that these are the very required factors the City did not consider when it altered the zoning code changing Table 38.08.020 in 2018. With respect, we acknowledge that Mr. Rogers is probably a fine planner, and competent City employee. But we all make mistakes and it is human nature, oftentimes, to double down and justify your mistakes, post hac. Community Development Board January 23, 2023 Page 2 The point here is not to attack Mr. Rogers personally but to urge this board, which ordinarily pays deference to staff reports, not to defer in this instance. The Report is crafted to accomplish a pre-decided result, and particularly with respect to the Bozeman Growth Policy, there is much cherry-picking of language to support that result. A Result-Driven Contortion of the Standard If the bar is set high enough, it can become an insurmountable obstacle. That is what is happening here. For example, the conclusion of the Staff is that “the proposed amendments do not substantially further the Bozeman Community Plan of 2020 (BCP)”. Staff Report, p.12 (emphasis added). Then, the Report tries to put the burden on the proponents, saying the burden of proof lies with them. But the standard is mistaken. §76-2-304, MCA, Criteria and guidelines for zoning regulations provides: The zoning regulations must be, “(a) made in accordance with the growth policy; (Emphasis added). These are two different standards. Obviously, the less onerous legal standard of the statute should be followed. The Staff cannot ethically or legally raise the bar by insisting that it is the proponents’ burden to show that the amendment “substantially further[s]” the growth policy. This is just one example of why we neighbors believe the Report is not objective. Lack of a “Functional” Definition of “Fraternities and Sororities” The Staff Report states that Bozeman lacks a “functional” definition of “fraternities and sororities”. Staff Report, p.3. This is not only a false conundrum. It is factually inaccurate. The term “fraternities and sororities” appeared in Bozeman ordinances fifty years ago. In 1973, Ordinance No. 935 was adopted. §17.10 of the Ordinance defined “fraternity sorority” houses as “a dwelling occupied and maintained exclusively by members affiliated with the academic or professional college or university or other recognized institution of higher learning.” That definition disappeared over the years. In 1977, the City of Bozeman adopted Ordinance No. 991 which continued to allow fraternities and sororities in certain neighborhoods and added language that such use would be a “conditional use”. Ordinance No. 1332, passed in 1991, allowed fraternity and sorority houses in R-3 zones, but not in R-3a zones. At that time 411 W. Garfield was zoned as R-3a. It is now zoned as R-2. Community Development Board January 23, 2023 Page 3 I will spare you the full history, but the bottom line is that in R-1 and R-2 zones, and others, from 1991 until the amendment in 2018, new fraternities and sororities were flatly prohibited in certain residential neighborhoods, including our university neighborhood. Obviously, there are some Greek houses in the neighborhood (largely well-behaved sororities) which were grandfathered before the City started regulating. They exist and the neighborhood gets along with them. My point, in short, is this: somehow, for almost fifty years, the City has addressed “fraternities and sororities” in its zoning codes. But, somehow, when asked to restore a simple table in existence prior to 2018, the City now needs a “functional” definition of fraternities and sororities. Given Bozeman’s long history, the Staff Report on this point appears pretextual. Moreover, if the City truly needs a definition, use the one set forth in the planning staff memo, p.3., as defined in the Complete Illustrated Book of Development Definitions, Fourth Edition, Moskowitz Lindbloom. But there is no need even to take this step because the City already does that. As the Staff Report itself admits: The terms “fraternity” and “sorority” are not uniquely defined by the City. Further, pursuant to §38.700.010, BMC… Otherwise, [when there is no counterpoint definition in federal law or regulations] all words in this chapter must be first defined as provided in this §38.700 and, if not defined herein must be defined as in the latest edition of “the Illustrated Book of Development Definitions” by Harvey S. Moskowitz, Carl G. Lindbloom. If not defined in the “Illustrated Book of Development Definition” have their customary dictionary definitions as defined in collegiate dictionaries in the sense that the context applies. Report, pp.22-23. The Report then proceeds to cite the very definition from that treatise as follows: Fraternity House—a building containing sleeping rooms, bath- rooms, common rooms and a central kitchen and dining room maintained exclusively for fraternity members and their guests and visitors affiliated with an institution of higher learning. Community Development Board January 23, 2023 Page 4 (Emphasis added.) In short, the City already has a functional definition of “fraternities and sororities”. Tellingly, although the Staff Report argues that fraternities and sororities are nothing other than “group living” this ignores the definitional “comment” found in the Illustrated Book of Development Definitions, which is as follows: Comment: Fraternity house is a distinct and separate use. It is not a dwelling unit or multi-family structure. Students do not constitute a family in a zoning sense since they do not function as a single household unit…. Report, p.23 (Emphasis added). Thus, the City’s attempt to conflate the concept of “fraternity” and “group living” does not work. Nor does it make common sense. Group living requires residents to live at the group living facility and they do not sponsor rush events, parties, and other raucous activities that fraternities do. Fraternities, in short, serve as a magnet to bring in non-resident members. In this case, the Alpha Sig house has had around four to six residents over the last year, but over forty members who attend rush events, parties, and other functions. Is the City Really Unable to Reasonably Differentiate Between Fraternities and Other Uses? In this connection, the Report makes the following observation: Group living is a residential use. The City cannot reasonably differentiate an owner-occupied house or a rental house from a residential fraternal organization for all intents and purposes. (Emphasis added.) Nonsense. For almost fifty years between Ordinance No. 935 of 1973 until the stealth revision in 2018, the City had a separate category for “fraternities” and “sororities”—that is, separate from the definition of “group living”. Now staff members make the obviously insupportable observation that they cannot distinguish between “fraternities” and other types of uses. Further, other university cities in the West are able to “reasonably differentiate” in this regard. Expert planning consultant Robert Horne makes this observation: Community Development Board January 23, 2023 Page 5 As a professional planner who has written and administered zoning codes of various types over a 40-plus year career, I find it highly unusual that a university city is treating fraternity and sorority houses in such a cavalier manner. Proper locations and standards for these facilities is a prominent “town and gown” issue faced by college towns across the country, and it is surprising to me that the City of Bozeman has chosen to give them so little regulatory attention in the new UDC. In addition, Bozeman’s treatment of fraternities and sororities is far from the norm for university communities in this region of the country: 1. Missoula, MT- Fraternities and sororities are not permitted in the residential zones equivalent to Bozeman’s R-1 and R-2. 2. Moscow, ID- Frats and sororities are not allowed in any residential zone except for R-4 (a multi-family district) where they are subject to a conditional use permit. 3. Laramie, WY- Frats and sororities not allowed in lower-density residential districts; allowed in R-3 (multi-family) through conditional use permit only. 4. Pocatello, ID- Frats and sororities not allowed in RE (residential estate), RL (low density residential), or RMS (medium density residential); allowed in more dense residential districts as “restricted use” only. 5. Logan, UT- Frats and sororities ONLY allowed in the CR-40 (campus residential zone) as a conditional use; not allowed in any other residential zone of any density. Stability and Quality of the Neighborhood Should be an Overarching Goal The Staff Report accurately makes the case that there are other fraternities and sororities in the University Neighborhood. Unfortunately, however, as with other parts of the Report there is contortion. For example, the Report cites an article from Lisa Bergman who sent a letter on behalf of the “Housing Association Board of Alpha Gamma Delta”. Notably, that sorority house (Alpha Gamma Delta) on the southeast corner of Garfield and Sixth, folded this past year— leaving an empty house reportedly in severe disrepair. In any event, the letter purports to list numerous fraternities and sororities but it smudges a bit, apparently talking about ancient history. For example, it lists a number of houses that no longer exist (or at least have physical houses, including Delta Sigma Phi, Sigma Nu, Lamba Chi Community Development Board January 23, 2023 Page 6 Alpha, Sigma Alpha Epsilon, Amigo Club, Omega Beta, Beta Epsilon, Lamba Phi, and Theta New). So, of the sixteen purported fraternities, ten either no longer exist or have no functioning house. The same is true of the sororities. Kappa Delta, Kappa Alpha Theta, Alpha Gamma Delta, Ceres Sigma Alpha, Theta Iota Delta, do not physically exist. Thus, of the eleven sororities listed, seven are illusory. The neighbors agree that there are a few fraternities and sororities, albeit fewer than the Staff Report suggests, that do exist in the neighborhood because they are grandfathered. But more important, the Greek houses in the immediate neighborhood are all sororities, which are universally much better behaved (the Chi Omega house, the Delta Gamma house, and the Alpha Omicron Pi house). In the case of the new fraternity, Alpha Sigma Phi at 411 W. Garfield, this amicable pattern of coexistence has been shattered. Until February, 2022, the neighborhood was generally peaceful, diverse and neighborly. With the addition of the new fraternity, it is no longer peaceful and neighborly. The logic of the Staff Report seems to be, well, it’s already a neighborhood of fraternities and sororities, one more won’t make a difference. That’s contrary to all of the evidence—it has made a huge difference. The neighbors are justifiably upset with the congestion and raucous parties and this group of young men. That brings us to the ultimate fallacy of the Staff Report. The “one more won’t make a difference” attitude, ignores the concept of the “tipping” point. For example, none of us neighbors would fault Susan and David Johnson, whose backyard borders on the Alpha Sigma house, for putting their house up for sale, because they can’t take these disruptive activities. But when that happens, when is the next single-family house in the neighborhood going to go up for sale—and who is going to buy it. It is surely not the goal of Bozeman’s Growth Policy to drive out single-family homes. Thus, the defect in the staff’s logic is the inability or unwillingness to acknowledge that the neighborhood now is very stable—and very comfortable—and very diverse. But the “one more won’t make a difference” will corrode that stability. Finally, there is a real shortage of affordable single-family dwellings in Bozeman. One of the things that contributes to the problem is entrepreneurial purchasers of single-family dwellings, who then turn them into dwelling units. With the price of these units in Bozeman, the landlord, to justify the purchase price, packs a bunch of students in to make economic sense out of the landlord’s purchase. That is a disturbing trend in Bozeman. Check Your “Common Sense” at the Door The neighbors made the point in their application that their property values will decline because of this new fraternity. The staff’s response: Community Development Board January 23, 2023 Page 7 The applicants assert that prohibiting fraternities and sororities near single-family homes will increase property value, however, they offer no data or evidence to support the claim. Staff Report, p.20. Apparently, when you enter the Planning Department you check your common sense at the door. Everybody knows that having a raucous fraternity next to your home in an otherwise peaceful, generally single-family neighborhood, will decrease property value of neighboring homes. Come on. Excessive Exuberance The Staff Report, with little empathy, describes the primary concern of the neighborhood is the “excessive exuberance” by a group of students. Then it describes what “could” happen: …a group of persons, not affiliated with a GLO, who are more interested in socialization than academic rigor could establish a residence in a house in any nearby neighborhood and invite the same cadre of hooligans to their abode create the same fracas the fraternity/sorority did the prior to their expulsion from the area. Staff Report, p.16 (Emphasis added.) Yes, this “could” happen—and undoubtably does. But this is hardly responsive. The actual facts here show that a systematic disruption in the University Neighborhood since this particular fraternity moved in in February 2022. But yes, “boys will be boys”. That’s exactly why reasonable zoning strictures should be applied and why additional fraternities should not be allowed in this neighborhood. The Zoning Cop-Out The Staff Report addresses the concerns of the neighbors regarding the dysfunctional behavior of the fraternity and describes these “a very real problem”. But, according to the staff, this is not the Zoning Department’s problem: The concern expressed in the application, a very real concern, stems from human behavior, not zoning. Staff Report, p. 6. It then discusses various instruments available for controlling such as MSU’s regulations Community Development Board January 23, 2023 Page 8 of fraternities and sororities, noise ordinances, police enforcement by the university and city police. The evidence is that, with respect to Alpha Sigma Phi house, these have not worked. This is well-documented and is why the neighbors are here. More important, however, is the logic of the planning staff. The distinction between “human behavior” and “zoning” is an artificial one. The very essence of zoning is to make sure that uses appropriate for some areas, are not allowed in others. Whether it be a gasoline station, a college bar, a manufacturing facility, such uses should not be placed in residential areas. It is because these uses may cause excessive noise, parking problems, or any number of range of problems. That’s why they are zoned the way they are. The same is true here. While there are some fraternities and sororities extant in the neighborhood and grandfathered, there is no excuse to say that zoning cannot control and effect human behavior. It can. Procedural Points There are several other professed reasons for recommending denial. The first is that fraternities and sororities were prohibited in R-3 zones prior to 2018, but only as a conditional use. However, in October, 2022, after the neighbors submitted their text amendment petition, the City jettisoned the concept of “conditional use”. This concept was replaced with a “special use” permit (SUP). See Staff Report, p. 3. Thus, according to the Staff Report it is not feasible to return to the previous Table. It seems a small matter, given the deletion of the conditional use concept in October, to apply the new concept (SUP) instead. In short, let’s work on a solution to the problem rather than throwing obstacles in the way. The Staff Report notes that the present request for a text amendment does not address the pre-2018 provision of the Code which permitted fraternities and sororities in some “mixed-use” neighborhoods (B-2, B-3, and REMU). This is not an issue of concern to the university neighbors. However, there are simple means of drafting which would either allow or not allow fraternities and sororities in these mixed-use neighborhoods. In short, this objection is easily surmountable. Finally, the Staff Report, in several places, states that the R-5 zone was not in effect prior to 2018. That’s news to the neighbors. The pre-2018 Table 38.08.020 has a specific category for R-5. Conclusion New fraternities and sororities, for many years, were not allowed in the university Community Development Board January 23, 2023 Page 9 residential neighborhood until the specific 2018 amendment which was not properly brought to the attention of the public. This neighborhood is quiet and occupied by solid neighbors with good homes and nice yards. Yes, there are a few sororities and one fraternity in this neighborhood— but they are grandfathered in and so far have been little problem. The new fraternity at 411 W. Garfield, however, even though it has existed less than a year, has created serious noise and congestion problems. The small, single-family dwelling that the Alpha Sigma Phi fraternity now occupies is wholly unsuitable as a Greek living facility. The Staff Report is disappointing in that it fails to objectively address the ultimate question, which is, is this new fraternity a suitable use in the neighborhood? We respectfully submit that it is not, and, relatively trivial procedural niceties should not be placed in the way of doing the right thing. Sincerely, ________________________ James H. Goetz 1019 S. 3rd, Bozeman, Montana JHG:mq