HomeMy WebLinkAbout2022_1213_Sundance Springs Site Plan Review 22047 GALLIK, BREMER & MOLLOY, P.C.
Attorneys
777 East Main Street
PO Box 70
Bozeman, Montana 59771-0070
406.404.1728
December 13, 2022
Kelley Rischke
Assistant City Attorney VIA EMAIL AND POST
City of Bozeman,
Bozeman, MT 59715
RE: Sundance Springs Site Plan Review 22047 CORRECTED
Dear Kelley:
As you know, my Client is proposed to develop Sundance Springs Phase !B,
Commercial Lot 2 and have submitted a Site Plan Review Application (No. 22047).
A summary from the Planner on the project, Ms. Montana, is attached as Exhibit A.
Certain residents of the adjacent subdivision have raised concerns about the concept
review and the City has asked for our opinion on several of those issues, apparently
because the application Unfortunately, in correspondence to the City and flyers
posted near the proposed development, certain unknown residents claim my Client
is acting in disregard of the law. I understand that land use issues for neighbors can
be emotional, but the claims are not true. My Client has been following the direction
of the City and consistent with applicable law.
Moreover, the application before you is a conceptual review and no specific
tenants of any portion of the property have been identified, let alone approved.
Those issues, which are subject to further application, are reserved for another day.
Accordingly, this letter addresses in general terms what I understand to be questions
raised by some members of the neighborhood with respect to the applicable zoning
and the covenants. I reserve the right to comment on and respond in the future as
the scope of the objections is unclear to me and I anticipate the neighbors and/or
their counsel will clarify. The bottom line is that my Client's application is fully
consistent with the City's growth policy and Bozeman Municipal Code (BMC) also
known as the Unified Development Code (UDC).
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By way of background, as you know, my Client's property, located off of
South Third and Goldenstein Lane, is 1.3 acres in size and has been designated as
B-1, neighborhood commercial area, pursuant to the 1992 zoning ordinance.
Covenants were also enacted. This was over twenty (20) years ago and was part of
the PUD approval of Sundance Springs, where the objectors live. As such, the
residents in the adjacent residential portion of Sundance Springs have been on
constructive notice of the land use designation of this property since they purchased
their property. MCA § 70-21-3 02; MCA § 1-1-217. Accordingly, they have
purchased their properties subject to and with knowledge of this fact.
The 1998 Sundance Springs PUD designated my Client's property as B-1,
Neighborhood Service District, pursuant to the 1992 zoning ordinance. That
designation, as the Staff has accurately noted, allowed food stores and restaurants as
principal permitted uses. As you have observed, the 1992 zoning required office use
and restaurants as principal permitted uses, and uses serving alcohol see and obtain
conditional use authorization:
The 1998 Sundance Springs PUD designated this property as B-1,
Neighborhood Service District, pursuant to the 1992 zoning ordinance.
That designation allowed food stores and restaurants as principal
permitted uses. The 1992 zoning ordinance required office use and
restaurants serving alcoholic beverages to seek and justify conditional
use authorization. Current Bozeman Municipal Code (BMC) standards
for a B-1 zone-equivalent is the B-1, Neighborhood Commercial
District. Currently, the current B-1 zone allows office and grocery
stores as principal uses but requires Special Use authorization for
restaurants selling alcohol (BMC 38-230.120). Breweries of this scale
would be deemed "manufacturing, artisan" and would be a principal
permitted use without the on-site sale of alcohol. If you wish to sell the
alcoholic beverage for consumption on-site, please submit an
application for the Special Use permit with the site plan submittal. The
Special Use permit criteria for evaluating your project are found in
BMC sections 38.230.100, 38.230.120 and 38.230.110.e through I.
This process is an administrative process, although it does require
public notice involving a posted notice on the property, mail notice to
adjacent property owners, and a legal notice in the local newspaper.
Since 1998, the City of Bozeman has enacted multiple changes to its growth
policy and adopted the UDC, which has since been revised and amended, including
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the introduction of"departures" and other deviations from the zoning code that once
required a "variance." All of those changes have been, to my understanding,
prefaced with public notice and the opportunity to comment and no objection has
been raised about the procedural aspects of these amendments as they apply to this
property.
It is my understanding an objection(s) has/have been raised about the uses
permitted under the present UDC with respect to my Client's property, as compared
to that under the 1992 or 1998 regulations which appears rooted in a hypothetical
use of a portion of the property as a brew pub. To that end, my Client's engineer
prepared the attached Exhibit which compares the zoning provisions at issue.
Fundamentally, the issue is whether the changes to the zoning text (18.23.010
v. 38.300.110.A.) over the past 25 years, with constructive notice to the adjacent
landowners, has "substantially affected"private rights. The answer is clearly "NO."
See, generally, 3 Bronin and Merriam, The Law of Zoning and Planning, § 38.3
("Types of rezonings—Zoning text changes: Change in Restrictions").
Attached as Exhibit A is a Zoning Code Comparison between 1992 to 2022,
which addresses "intent," building size, permitted, conditional and special uses,
along with setbacks and building heights, makes clear the revisions by the City over
the years to the zoning regarding smaller scale retail and services activities
associated with nearby or adjacent residential neighborhoods are entirely consistent
and reflective of the City's overarching policy, which has not changed, but is more
refined, to have small scale residential retail and service areas to support neighboring
residential areas, while mitigating traffic on the streets and providing a walkable
neighborhood with access to such services. Further, evolving policies with respect
to parking requirements reflect these principles.
In short, regulations governing land use are not static and must take into
account the growth policy and circumstances on the ground in a growing
community. The modest changes to the code, with respect small scale retail and
service activities generally associated with nearby residents have not "substantially
affected" private rights and are entirely consistent with the PUD approved by the
City years ago.
Finally, a question has been raised, I believe, about the City's role in the
enforcement of private covenants. Simply stated, that is for the City to decide and
it can take the view that its current policies with respect to land use and its desire, in
light of the growth and creating or maintaining walkable neighborhoods with certain
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smaller scare retail and service activities often associated with or desired by
neighborhoods, as reflected in the growth policy, is the guiding principles for the
City.
Again, I am not entirely clear the nature of the issue, except to say the current
code applies to my Client's application and the modest revisions have not
substantially affected the private rights of the neighbors and they have had
constructive notice of not only the underly approvals, but revisions to the zoning
code and growth policy. The 2022 regulations are consistent with the adopted
growth policy.
Please call or email with questions, comments or concerns. Again, I reserve
the right to supplement based upon further information by the City, the objecting
neighbors, and/or their attorney(s).
Sincerely,
GALL K, BREMER& MOLLOY, P.C.
Brian K. Gallik
Attachment (1992 to 2022 B-1 Zoning Code Comparison)
C: Client
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