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HomeMy WebLinkAbout22382 PureWest Christies Appeal DocumentsNovember 30, 2022Dear City Commission,Please consider this an appeal of an administrative interpretation rendered by the Bozeman CommunityDevelopment Director (Development Director) on October 31, 2022 (Decision) regarding the lighting atPureWest Christie's Real Estate (PWC), located at 708 North Rouse Avenue.1 To aid in the Commission'sunderstanding of the issues at hand, we attach a photo of the PWC site (originally appended to theDecision), with descriptive labels for each light (Attachment 1). We respectfully submit that theDevelopment Director's interpretation and assessment of whether a light is "objectionable" under theBozeman Municipal Code ("code" or "BMC") (Decision pp. 4-5), is incorrect both as a matter of law andfact, and thus request that the Commission grant the relief sought below.Sign / Roof Peak Light. In the Decision (p. 5), the Development Director states that the Sign / Roof PeakLight, which serves to illuminate a wall-mounted business sign on PWC's street-facing wall, is currentlyin code compliance based in part on a finding that the light is not "objectionable." Specifically, theDevelopment Director indicates that a decision as to whether BMC 38.570.040.G.l's requirement that alight fixture not "'create a nuisance by projecting or reflecting objectionable light onto a neighboring useor property/ is not whether any member of the public asserts the light is objectionable," but ratherwhether the "light is 'objectionable' in the Development Director's mind." Decision p. 5.-4s a matter of law. As an initial matter, we disagree with the Development Director's assertion thatwhether a light is objectionable is a subjective standard based on whether she personally finds the lightobjectionable. Decision p. 5. In such cases, the law typically employs an objective standard based onwhether a "reasonable person" would find the light objectionable, rather than deferring to the personalopinion of a single individual who, to our best knowledge, has not actually viewed the light in questionduring nighttime hours. For purposes of this appeal, however, we will assume that the code does indeedconcentrate such power in the hands of a single individual.Even with this assumption, however, the Decision nonetheless continues to suffer from what we submitare fatal flaws. Specifically, in assessing whether the Sign / Roof Peak Light is objectionable, the Directorarbitrarily ignores other "site lighting" requirements set forth in BMC 38.570.040.G, including G.6's plainand unequivocal requirement that "fixtures used to illuminate signs must be [mounted at the top of thesign and] aimed [downward] so as to not to project their output beyond the sign." Contrary to thisexpress requirement, the light emanating from this fixture is in no way limited to PWC's sign. Rather, indirect violation of the plain language of the code, its output projects well beyond the sign to illuminatealmost the entirety of the 2-story street-facing wall as well as the ground-level landscaping beneath thewall. As a result, the fixture produces significant spillover/nuisance light/reflected glare that illuminatesfirst and second floor bedrooms in the listed complainant residences. See Attachments 2-3.As a matter of fact. This light is currently off and has been off for a couple of months. Nonetheless, theDevelopment Director concludes that the light is currently in compliance based in part on PWC'spromise to work with its "architect to determine the best way to redirect the light." Decision p. 4. In sofinding, the Development Director effectively deprives complainants of the ability to independentlyassess compliance, thereby putting us in the impossible position of attempting to ground-truth whether1 Additional required information describing the property and its ownership is included in the attached Appendix. PWC is currently in comDliance based on a future promise to take action.2 We submit that theDevelopment Director's finding of current compliance is incorrect as a matter of fact. We thusrespectfully request that the Commission, in its discretion, undertake one of the following actions: (1)direct that the fixture be re-assessed, once it is turned on, for compliance with the above-noted coderequirements; or (2) require PWC to turn the fixture back on during an on-site investigation andappellate review by the Commission, for purposes of confirming whether it is currently in compliance.3'4Conclusion. Complainants include residents and homeowners who have in some cases called the City ofBozeman home for 20 to 40 years. Although we are grateful for the Director's efforts to resolve thisdispute, the resulting Decision unfortunately fails to achieve the lighting code's foundational goals to"protect neighbors and the night sky from nuisance glare and stray light from poorly aimed, placed,applied, maintained or shielded light sources; protect and maintain the character of the city; and toprevent excessive Itehting and conserve energy." BMC 38.570.010.C.-E. (emphasis added). In sum, notonly does the Decision fail to protect PWC's neighbors, but it also puts all City residents and their healthin peril by establishing an arbitrary precedent regarding future lighting complaints.5 We thus respectfullyrequest that the Commission grant the requested relief.Thank you for your time and consideration,^<x^^^-Renee Callahan David WestonAppeal representatives, on behalf of 17 residents and Homeowners for 11 residences within 1 block ofPWC, including Homeowners for 717, 715, 711, 707, 621, 617, 617 1/2 N. Rouse Ave.; 716 N. Montana St;314 & 316 E. Cottonwood St.; & tenants for 715, 711, 701, 621, 617'AN. Rouse Ave., 316 E. Cottonwood:Dave Weston and Renee Callahan, 717 North Rouse AvenueRoger & Jane Harris, 711 & 715 North Rouse AvenueRonald Patterson, 707 North Rouse AvenueJulie & Kelly Maxwell, 621, 617, & 617 Vz North Rouse Avenue; 314 & 316 E. Cottonwood St.Dezri Rochin, 701 North Rouse AvenueRik & Karen James, 716 North Montana Streetec: Anna Bentley, Development Director2 Despite stating on page 4 that PWC is "currently in discussions with their architect to determine the best way to redirect" thisfixture "to concentrate the light more directly on the sign," the Director inexplicably concludes on the next page that "the roofpeak lights have been adjusted to more directly shine on the sign." As noted, because the light is currently off, we are unable toresolve which of these two contradictory statements is accurate.3 To the extent the Commission decides that prudence dictates that resolution of this dispute should be delayed pending PWC'scompletion of its promised adjustments, we would happily accept a refund of the required $1,134 filing fee along with astipulated agreement to put our appeal on hold pending further action by PWC.4 The Decision (pp. 2-3) similarly concludes that PWC's (1) Monument Lights and (2) Wall Mounted Lights are in compliance. Aswith the Sign / Peak Roof Light, we (1) are unable to independently assess compliance of the Monument Lights because theyare currently off pending replacement; and (2) submit that the finding with respect to the Wall Mounted Lights - which, asshown in Attachment 3, project skyward light that illuminates surrounding trees ~40 feet in the air-arbitrarily ignores whatappears to be a clear violation of BMC 38.570.060.A.3's and 38.570.100's prohibition on any "light output emitted above 30degrees at any lateral angle around the fixture." Accordingly, to the extent the Commission grants our appeal, we request thatit require re-evaluation of the Monument and Wall Mounted Lights at the same time as the Sign / Roof Peak Lights.5 Numerous studies confirm that exposure to artificial light at night may "negatively affect human health, increasing risks forobesity, depression, sleep disorders, diabetes, breast cancer and more," available at: httDs://www.darksky.org/light-pollution/human-health/ sJrt ^^•^Nt-SBrit-©hi«•^1KIISyBNI;1IvKbjOs.£C!•43^sA^bJO•^f,G(Ussaim3wfi3Sgl0msi-15V-bJOG•s&^WflSAstMs?S3SB3S5SrN^rAS03fecu^^Ki t+-l8rtSa0wco.»'s ^II11II^.?i(^sI•^j?<gCMII^ Attachment 2: Compilation of Relevant Code ProvisionsWhile the Decision finds that the Sign / Roof Peak Light meets the footcandle (MC 38.570.040.6.5) andIip turn-off (MC 38.570.040.6.3) requirements, its conclusion that the light is not objectionablearbitrarily ignores the following code provisions (see especially emphasis added):1. Primary code provisions applicable to the Sign / Roof Peak LightDIVISION 38.570. - LIGHTINGSec. 38.570.010. - Purpose. The purpose of this section is to:C. Protect neighbors and the night sky from nuisance glare and stray light from poorlyaimed, placed, applied, maintained or shielded light sources;D. Protect and maintain the character of the city;E. Prevent excessive lighting and conserve energy;Sec. 38.570.040. - Site lighting.G. Miscellaneous site lighting specifications. Except as otherwise allowed in subsections Eand G of this section, all lighting must comply with the following requirements:1. All outdoor lighting, whether or not required by this section, must be aimed, located,designed, fitted and maintained so as not to present a hazard to drivers or pedestriansby impairing their ability to safely traverse and so as not to create a nuisance byprojecting or reflectinR^bjectionableJight ontoji neighboring use or property.2. All outdoor lighting fixtures must be shielded in such a manner that no light is emittedabove a horizontal plane passing through the lowest point of the light emitting element,so that direct light emitted above the horizontal plane is eliminated.4. Vegetation screens may not serve as the primary means for controlling glare. Rather,glare control must be achieved primarily through the use of such means as cutofffixtures, shields and baffles, and appropriate jpplicatjon affixture mountmfi height,wattage, iiminR^ngle and fixture placement.6. Externally illuminated wall-mounted and pole signs must be lighted by fixtures mountedat the top of the sign and aimed downward; ground-mounted sign lighting may be usedonly for monument style signs. Fixtures used to illuminate signs must be aimed so as notto project their output beyond the sign.7. Floodlights, spotlights orany other similar lighting may not be used to illuminatebuildings or other site features unless approved as an integral architectural element onthe development plan. On-site lighting may be used to accent architectural elementsbut not to illuminate entire portions of buildings. Where accent lighting is used, themaximum illumination on any vertical surface or angular roof surface may not exceed5.0 average maintained footcandles. Building facade and accent lighting will not beapproved unless the light fixtures are carefully selected, located, aimed and^shielded sothat light is directed only onto the building facade and spillover light is eliminated. ATTACH H£NT ^-.0- ^>\f\^RA^ 0-^ <:o^PLA^^^TY' (?.€5lt>^^C^5?tiC^"1%r RK?-^ L-06^T 10^5r f{6?^.^ ST.71k~37^0<:\A^-y^n\f-\T-7.<3^w•y•6mrrt72,3m<(-^ETO??oi:.co-rro^woOT^ ^T.^r-^~<UJ6^^J:;G21,fc^-1/^Glf-^?^mI^A5?^ -ST.WAL^. ^\^^^V^f.l;PSA:K^^708x3>^r;?nSn^<^C3^wtCT\^^