HomeMy WebLinkAboutCORRECTED 051923 ltr to GallikBOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorChanan Brown, ProsecutorAshleyCarroll, ProsecutorTim Cooper, Assistant City AttorneyJennifer Giuttari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyMollie Schultz, ProsecutorMay 19, 2023Brian GallikGallik, Bremer and Molloy, P.CP.O. Box 70Bozeman,MT 59771-0070SENT VIA FIRST CLASS MAIL and E-MAIL to bnan@galLiklawfirm.comRE: Sundance Springs Site Plan Application #22047Dear Mr. Gallik,This letter responds to your letter of December 13, 2022, providing legal analysis regardingseveral issues and questions raised in public comment. This letter also provides clarification andguidance regarding the City's review of the Sundance Springs Site Plan Application #22047relevant to three primary issues raised in public comment: enforceability of private covenants bythe City; the application of historic Bozeman Municipal Codes or current code; and that theCity's Final PUD file cannot be located, but several elements of the Final PUD file are available.Additionally, I write to inform you that the City will invite public comment from May 29,2023to June 12, 2023. This public comment period will be limited to only new information receivedin the record since the close of the last public comment period on December 13, 2022. Newinformation on which the public may comment includes: the content of this letter; othercorrespondence and public comment received since the close of the last public comment period,including the contents of your letters dated December 13, 2022 and December 29, 2022; andrevisions to the application submitted on March 3, 2023 modifying the architectural and lightingplans to comply with standards found in covenants, adjustment of the north property line setbackto a 10-foot rear setback, and removal of a departure request for parking adjacent to a streetcorner.City Enforcement of Covenants, Conditions, and RestrictionsSeveral public comments and other communications from concerned neighbors contend that theproposed project must be evaluated for conformance with private, recorded Covenants,121N.ROUSE AVENUE- CIVIL901 N. ROUSE AVENUE- CRIMINAL@P.O. BOX 1230BOZEMAN, MT 59771-1230(P) 406-582-2309 (F) 406-582-2302 WWW.BOZEMAN.NETTDD: 406-582-2301THE MOST LIVABLE PLACE
Conditions, and Restrictions for the Neighborhood Services Property (Covenants).Additionally, public comments have asserted that the City ofBozeman (City) is a party to all ofthe Covenants, Conditions, and Restrictions found in the Neighborhood Services Property. Thecommenters incorrectly conclude that the City must enforce the private CC&Rs in its review ofapplication #22047.Exhibit B attached to the Covenants clearly and unequivocally sets forth the covenants that wererequired by the City as conditions of approval and to which the City is a party. Exhibit B alsoestablishes the requirement that any amendment to these specific covenants requires Cityapproval, which is derived directly from the Findings of Fact and Order issued on January 22,1996, In the Matter of the Application of Donald Hannah for Preliminary Subdivision PlatApproval of Sundance Springs Planned Unit Development Subdivision, Phase I, and forConditional Approval of a Zoning Planned Unit Development (Preliminary PUD Findings ofFact). It is unsurprising that the City would only require to be made a party to these specificcovenants; the City has no interest in the vast majority of the contents of covenants, for example,membership and voting rights, election of directors, and general covenants outside the scope ofBMC standards.Further, the BMC expressly states that the City has no duty to enforce private covenants thatimpose higher standards than BMC provisions:Sec. 38.100.100. Private restrictions.This chapter is not intended to affect any existing private agreement or condition such asa deed restriction or covenant. If any provision of this chapter is more restrictive orimposes a higher standard than any such private restriction, the requirements of thischapter control. Where the provisions of any private restriction are more restrictive orimpose higher standards than the provisions of this chapter, the city has no duty toenforce such private restrictions or advise of their existence. The city may enforce aprivate restriction if the city is a party to such covenant or restriction, if such restrictionwas required by the city, or if it was relied upon by the city during the land developmentprocess in order to meet the requirements of this chapter or another required standard.The city may prohibit private restrictions that violate applicable law. Covenants aresubject to the requirements of section 38.220.320. (emphasis added)Rather, when the City is a party to a covenant or restriction, the City may choose to enforce theprivate restriction; it is not obligated to do so. Even assuming arguendo the City is a party to allof the covenants, it is the City's custom and practice to only enforce those covenants relied uponfor approval of a development. Further, the City prefers to encourage development of thecommercial property pursuant to today's BMC standards, which are reflective of the' Note that the residential portions of the Sundance Springs PUD have separate recorded Covenants, Conditions, andRestrictions. The residential CC&Rs are not applicable to the Neighborhood Services CC&Rs, nor are the CC&Rsfor the commercial portion of the PUD applicable to the residential portions.
community's needs and values today, not those established over twenty years ago2. Therefore,the City declines to exercise authority it may have to enforce the covenants.Finally, the discussion of whether the City may enforce the covenants through its decision on thepending application is largely academic. The current application, as submitted, meets thestandards of the applicable covenants listed on Exhibit B3. Notably, an update to the applicationsubmitted on March 3, 2023, included changes regarding the exterior lighting package that bringthe proposal into compliance with the requirements of covenant 10.7.Application of Current Code to the Current ApplicationThe City evaluates site plan development applications against the adopted code at the time theproject receives a determination of adequacy, pursuant to Montana law and the BozemanMunicipal Code.Montana law, pursuant to Montana Code Annotated section 7-21-1003(2) provides in relevantpart:Except as provided under 76-2-206 or 76-2-306 or otherwise agreed to in writing by theapplicant, the review and approval, approval with conditions, or denial of the site-specific development plan must be based solely upon the ordinances and regulations ineffect at the time that the complete site-specific development plan was submitted to thelocal government entity that has jurisdiction over the application... . (emphasis added)Further, local regulations unequivocally state that non-subdivision applications, like the instantsite plan application, are reviewed under the regulations in effect at the time an application isdeemed adequate; it offers no exception for site plans associated with historic planned unitdevelopments. Section 38.200.080.B, BMC, provides:B. Nonsubdivision. Review ofnonsubdivision applications will be under such regulationsas are in effect at the time an application for approval of a preliminary site plan isdeemed adequate according to section 38.230.090; except that an interim zoningordinance adopted according to MCA 76-2-306 applies to a nonsubdi vision applicationwithout limitation to the date of adequacy of the application until final action has beentaken on the application. An applicant may waive, in writing, the shield from changing2 The subject property is designated Community Commercial Mixed Use in the 2020 Bozeman Community Plan andFuture Land Use Map.3 Exhibit B includes "Article IX, Section 9.8 regarding parkmg of cars on the street" among the covenants that theCity is a party to and cannot be amended without the City's consent. This comports with the Commission'sFindings of Fact, which state on page 19 that the following amendment should be made to the Covenants as theywere initially proposed, "Page 26, Section 10.8. Clarify section regarding on-street parking per the CityCommission's decision on street standards, to prohibit parking of cars or other vehicles on the streets." As recorded,that covenant (apparently renamed to 9.8) addresses the City required prohibition ofon-street parking, but also statesthat Neighborhood Services buildings are "required to have at least the minimum number of parking spaces asdefined in the Neighborhood Service District of the Bozeman Zone Code." The provision regarding the minimumnumber of parking spaces does not appear to be required by the City. Whether or not the City is a party to thatportion of the covenant, the City declines to enforce it in favor of encouraging the use of modem minimum parkingstandards. The application provides the requisite number of parking spaces under current code without relying uponany on-street parking spaces.
ordinances established by this section. In the event that such waiver is provided, thenonsubdivision application will be reviewed under the ordinances in effect on the date ofthe final action on the application, (emphasis added)In this case, site plan application 22047 received adequacy on August 17, 2022. This applicationwill be reviewed and an administrative decision will be made based on requirements found in the2022 Unified Development Code.The City recognizes that the Development Review Comments for the initial Conceptual Reviewapplication #20298 on October 1, 2020, inferred historical zoning from 1992 was applicable tolot sizes, setbacks, and land use4. Regrettably, this information was provided without consultingthe City's legal department and is contrary to the City's position on the pending application.Unlocated Final PUD ApprovalAs you know, the City is regrettably unable to locate the final PUD file. However, continuedsearching has yielded a document that demonstrates Sundance Springs' compliance with andcompletion of all requirements of the City Commission's Findings of Fact for the SundanceSprings Preliminary PUD application, as required to receive Final PUD approval. Please find thedocument, titled Sundance Springs P.U.D. Findings of Fact and Order5, attached. The bold printand attachments clearly document Sundance Springs' compliance with all preliminary conditionsof approval sufficient to approve the Final PUD application. The Sundance Springs P.U.D.Findings of Fact and Order document is typically a part of the final PUD file. Significantly, itindicates that the conditions of approval did not change between the preliminary and final PUDapprovals and that the conditions of approval were satisfied.Although the City has not located the Final PUD file, the critical elements of the file areavailable to the City, including: adopted Preliminary PUD Findings of Fact; recorded documents,like the Sundance Springs Commercial covenants; and the Sundance Springs P.U.D Findings ofFact and Order document memorializing completion of requirements set forth in the PreliminaryPUD Findings of Fact and indicating an approval of the Final PUD application. The recordedcovenants and recently discovered Findings of Fact and Order hew closely to the approvedPreliminary PUD Findings, which helps verify that little, if anything, changed between approvalof the Preliminary PUD and the Final PUD. Additionally, the existence of the recordedcovenants and the inclusion of Exhibit B memorializing the City's requirements articulated in theFindings of Fact provide further evidence of compliance with the Findings as necessary to obtainFinal PUD approval. Additionally, the City has many other files associated with SundanceSprings' development applications over the years and nothing in those files indicates thatSundance Springs' Final PUD application was denied or deviated in any material way from thePreliminary PUD Findings of Fact.4 The Concept Review comments also explain that the applications' example tenant, a brewery tasting room, usedfor the purposes of calculating parking requirements and the like is an allowable use under historic standards with aSpecial Use Permit for the sale of alcohol, as noted in your December 13, 2022 letter5 This document is included in file P-0042 Sundance Springs S.E. Major Subdivision Final Plat. The bold printrefers to certain other documents, such as materials behind tabs and conditions of approval found in the SundanceSprings Subdivision Southeast Findings of Fact and Order. Those items are available for your review, but have notbeen appended here due to their size.6 The subject property was annexed, subdivided, and developed in phases, each requiring its own application(s).
The final plat was approved in 2000 and filed with the Clerk and Recorder. Significant portionsof the development were built. Both of those actions require an approved Final PUD application.The City recognizes that failing to review this application using existing documents, and insteadstrictly adhering to the requirement to review the application against the unlocated Final PUDfile, would perpetuate the absurd result that this property could never be developed. Therefore,the City believes that review of application 22047 is possible using these documents, eventhough the Final PUD file is not available.The City has discussed with you and your client the potential risks associated with reviewingapplication 22047 using the Preliminary PUD Findings of Fact, recorded covenants, and existingdocuments, as well as alternative options, including altering the application to comply withhistoric code provisions and covenants. Your client has opted to proceed with review ofapplication 22047 as submitted; therefore, staff will complete review of the application and openone final public comment period before forwarding a recommendation to the CommunityDevelopment Director for a decision.Thank you for your patience as the City carefully considers and thoroughly reviews thisapplication and provides an additional comment period to afford the public a reasonableopportunity to participate in every aspect of this application. If you have any questions, pleasecontact me at krischke(%bozeman.net or 406-582-2309.Sincerely,A^4^/. ^-iO^LKelley L. RischkeAssistant City Attorneyec: Mike Maas, City Clerk at mmaas@bozeman.net (for inclusion in the publicly availablematerials regarding Sundance Springs)Robert Farris-Olsen (rfolsen@mswdlaw.com) and Kim Wilson(kwilson(a)mswdlaw.com), Morrison Sherwood Wilson Deola PLLPi