Loading...
HomeMy WebLinkAbout06-13-23 Public Comment - R. Farris-Olsen - FW_ Public Comment, Sundance Springs, Application #22047From:Lynn Hyde To:Agenda Subject:FW: Public Comment, Sundance Springs, Application #22047 Date:Tuesday, June 13, 2023 11:18:45 AM Attachments:Public Comment 6-12-23 FINAL.pdf Lynn Hyde | Development Review Planner, Community DevelopmentCity of Bozeman | 20 East Olive St. | P.O. Box 1230 | Bozeman, MT 59771406.579.1471 | lhyde@bozeman.net | www.bozeman.net From: Rob Farris-Olsen <rfolsen@mswdlaw.com> Sent: Monday, June 12, 2023 3:15 PM To: Lynn Hyde <lhyde@BOZEMAN.NET>; Kelley Rischke <KRischke@BOZEMAN.NET> Cc: Tim <tswanson46@gmail.com>; Nancy Swanson <nsswanson04@gmail.com>; Geoffrey Poole <gpoole@eco-metrics.com>; Kim Wilson <kwilson@mswdlaw.com> Subject: Public Comment, Sundance Springs, Application #22047 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. Lynn, Attached is public comment regarding the Sundance Springs subdivision. Thank you for your attention, -Rob Robert Farris-Olsen 401 North Last Chance Gulch P.O. Box 557 Helena, Montana 59624 406-442-3261 406-443-7294 FAX This e-mail message is PRIVILEGED AND CONFIDENTIAL communication and is transmitted for the sole and exclusive use ofthe named addressee(s). This communication may not be copied or disseminated except as directed by the named addressee(s). Ifyou receive this communication and you are not a named addressee, please notify us immediately. In such an event, you may notretain a copy of this communication, or any part thereof, and may not retain, preserve, divulge or use in any way whatsoever any ofthe information contained or transmitted herein. John 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 June 12, 2023 Via Email Lynn Hide lhyde@bozemen.net Re: Sundance Springs Subdivision Phase 1B, Commercial Lot 2 Application No: 22047 Dear Lynn: As you know, Kim Wilson and I represent Geoff Poole and Tim and Nancy Swanson. My clients incorporate by reference the various comments they have already submitted regarding the inadequacy of Site Plan #22047. To the extent that most of the application has not changed, my clients’ position has not changed – the modern BMC requires the City to deny Site Plan #22047.1 Specifically, BMC § 38.430.080.A requires the enforcement of all conditions of the Sundance Springs PUD, BMC § 38.430.040.A.3.d expressly prohibits approval of a Site Plan that violates any terms of a PUD’s approved final plan, BMC § 38.100.050 states that the most restrictive of legally adopted regulations (including, e.g., a PUD) is in effect, and BMC § 38.100.080 puts the burden of demonstrating compliance with the BMC (and therefore, the terms of the PUD) on the applicant. In the absence of the approved final plan for the Sundance Springs PUD, any one of these provisions of the BMC is sufficient to compel denial of Site Plan #22047. When considered together (pursuant to BMC § 38.100.050.C), the City’s legally obligated to disapprove the Site Plan.2 1 The City asserts that the applicable BMC is that which was in effect at the time Application #22047 was deemed adequate. We have previously disagreed, but even if, arguendo, the applicable code is as the City believes, that code requires rejection of #22047. 2 BMC 38.200.080.B provides a “shield from changing ordinances” during the application and approval process, not an exemption from previously and lawfully adopted rules or regulations like PUDs. See BMC § 38.100.050.A. Although my Clients’ position is unchanged, the additional comments apply to new information raised in the recent correspondence between the applicant and the City, as well as the minor changes to Site Plan #22047. A. Unlocated Approved Final Plan The City’s proposal to substitute the requirements of the covenants and the January 22, 1996, Findings of Fact and Order (FoFaO) for the PUD’s approved final plan is improper. Indeed, such a substitution is forbidden under BMC § 38.430.040.A.3.d, which does not provide for substitution. 3 While my Clients disagree that the substitution is legal, and do not waive that argument, the following comments address the proposed substitution. The City’s proposed substitution rests on three assertions: 1) the requirements of the PUD’s approved final plan can be reconstructed from the covenants and the Conditions of Approval for the approved preliminary plan contained in the FoFaO, 2) that “Exhibit B” (attached to the covenants) contains a list of “applicable covenants” and 3) although the substitution would violate the law, it is necessary lest the lot be condemned as forever undevelopable. Each of these three assertions is inaccurate. Reconstruction of PUD terms: The City’s proposal would not consider all the evidence documenting requirements of the approved final plan. Specifically, to be approved, the final plan must have complied with the terms of the approved preliminary plan, the record of which is largely complete4 (Z-95125). The contents of Z-95125 document that the Sundance Springs PUD was approved as a phased “Master Plan and Development Guidelines Only” PUD described in BMC § 18.54.080 (1992). As such, the binding terms (in fact, the only terms) of the PUD are the “Master Plan” and the “Development Guidelines.” Notably, the covenants constitute the entirely of the Development Guidelines conditionally approved by the City Commission as part of the PUD’s preliminary plan.5 Moreover, when the PUD was considered by the City Commission, City staff assured the Commission that all the Development Guidelines would apply. The staff report for Z- 95125 stated that the City will “ensure that construction applies with the guidelines. Site plan review will occur for all development within the neighborhood services area, and that review will ensure 3 The city acknowledges this problem when it references “the requirement to review the application against the unlocated Final PUD file” on the final page of the May 19, 2023, Letter from Rischke to Gallik. 4 The “Master Plan Objectives” listed in the Table of Contents for both Z-95125 and P-9539 are missing from both documents. However, a Master Plan Map survives in the working folder for Z-9812 and an excerpt from the Master Plan Map entitled “Village Plan” survives in the Market Study required by the City Commission as a condition of approval. 5 Tab 8, Z-95125. compliance with the Guidelines.”6 (emphasis added). Application of the Development Guidelines was reaffirmed in public hearings7. Thus, if the terms of the PUD’s approved final plan are to be reconstructed from the existing record, the record of the Development Guidelines and Master Plan must be included in addition to the City Commission’s conditions associated with approval of the same. Applicable Covenants: In issuing the FoFaO, the City Commission conditionally approved the Master Plan and Development Guidelines contained Z-95125. No text in the FoFaO in any way limits City’s obligation to enforce any of the PUD’s Development Guidelines.8 The status of the City as party to all or some (or even none) of the covenants9 is not relevant to the fact that the text under Tab 8 of Z-98125 (as amended by Condition 33 of the FoFaO) was approved by the City Commission as the binding Development Guidelines of the Sundance Springs PUD. The Development Guidelines must be enforced by the City under BMC § 38.430.080.A, BMC § 38.430.040.A.3.d, BMC § 38.100.050, and BMC § 38.100.080. Necessity of the substitution. The City’s stated rationale for proposing to violate the BMC is a presumption that compliance with the BMC would render the lot forever undevelopable. Such a rationale cannot be considered because the City is not considering the long term fate of Lot #2 of the Neighborhood Services District. The only issue before the City is Application #22047. Further, as it stands, BMC § 38.430.080.A, BMC § 38.430.040.A.3.d, and BMC § 38.100.080 prohibit development because the requirements of the approved final plan are currently unknown and in dispute. B. City Enforcement of Covenants, Conditions, and Restrictions The City and Applicant may resist the compulsory nature of the PUD’s Development Guidelines, and instead continue to assert that the Covenants represent “private agreements” among the lot owners of Sundance Springs.10 In that case, the following comments are relevant to the City’s argument that it is obligated to enforce only those covenants listed in Exhibit B, attached to the Covenants. The City argues that the Covenants do not need to be enforced because the City’s “custom and practice” is to “only enforce those covenants relied upon for approval of a 6 See heading “Covenants and Development Guidelines” of the Staff Report for Plan Z-95125, p. 24 7 See Minutes, Public Hrg. on Z-95125 and P-9539 (Nov. 20, 1995). 8 Approval Condition 33 lists cures to the Development Guidelines in Z-95125 that were required by the City Commission for approval thereof. 9 The Commission ordered that “the City is a party of the Covenants,” not that “the City is a party to those covenants required as a condition of approval.” Had the Commission wished to limit the Covenants to which it was bound, it could have ordered that. 10 Although the covenants are the PUD’s Development Guidelines and must be enforced by the City, we assert they are simultaneously private agreements enforceable among the lot owners. development.” In terms of the City’s “custom,” the Application Criteria in Z-95125 show that the Development Guidelines (covenants) were relied upon extensively for approval of the PUD11. As just one illustrative example, the PUD was deemed to have met required Application Criteria because “[a]ll future construction will be controlled by the city zone and building codes, covenants and developmental guidelines for the project, which further specify architectural and landscaping treatments to individual lots” and “[t]hese Covenants and Development Guidelines assure that the neighborhood services portion of the property will remain in scale with the surrounding residential developments.”12 With regard to the City’s “practice,” the City has, until now, enforced the Sundance Springs PUD Covenants. For example, in 2004 the City determined that a residential developer violated the required setbacks in the Sundance Springs subdivision. The City cited the covenants as the source of the setbacks and described the violation as an “illegal encroachment” on a “required setback.”13 When faced with the necessity of enforcing the covenants (and requiring the developer to demolish a nearly completed residence), the City Commission instead chose to amend the Sundance Springs PUD to bring the site into compliance with the covenants.14 Just as the City enforced the covenants on residential property in 2004, it must do so for the commercial property now. Finally, even if, arguendo, “Exhibit B” were a list of “applicable covenants,” the context of the declaration of any “applicable covenants” is still in effect. Thus the 1992-era zoning is in force on sites governed by the PUD15 (BMC § 38.100.050.A). The City’s conclusion that Application #22047 “as submitted, meets the standards of the applicable covenants listed in Exhibit B” can only be reached by extracting the alleged “applicable covenants” from the context of their legal declaration. In summary, then, even if the covenants represent “private agreements” among the PUD landowners (a conclusion in conflict with the surviving record of Z-95125 and its conditional approval by the City Commission), the covenants must be enforced under the City’s custom and practice. Further, the Declaration of Covenants establishes that any set of applicable covenants (e.g., those listed in “Exhibit B”) are applied beyond the requirements of the 1992-era Zoning Ordinance. C. Allowable uses The applicant’s additional submissions do not change the bulk of the proposal, and the 11 Tab 6, Z-95125. 12 Page 1 Application Criteria, Tab 6, Z-95125. 13 File Z-040148 Parks Modification to the Sundance Springs CUP/PUD. 14 The City’s choice of amending the PUD in order to address a violation of the covenants is, ipso facto, evidence that the covenants are legally bound to the PUD. 15 The Introduction to the Declaration of Covenants states that all covenants are applied beyond the requirements of the 1992-era Zoning. applicant’s comments and minimal changes do not justify approval. In a December 13, 2022, Letter from the Applicant to the City, the Applicant argues that the PUD allows the uses associated with the 1992 B-1 district on the Neighborhood Services lots and that those uses have evolved with changes in UDC over time. These assertions are inconsistent with the record of approval and the Development Guidelines. First, the Staff Report for Z-95125 makes clear that, while the uses are limited to those listed in the 1992 B-1 District, no uses were approved under the PUD: “ALL USES PROPOSED ON ANY PORTION OF THE NEIGHBORHOOD SERVICE LOTS MUST UNDERGO FURTHER ZONING REVIEW, AS REQUIRED IN CHAPTER 18.52 OF THE ZONING ORDINANCE. The inclusion of the neighborhood service lots in this PUD give no pre-approval for any of the uses [in the 1992 B-1 district]. Either minor site plan, major site plan, or conditional use review will be required for every proposed use or structure.” (emphasis is included in the original text). Therefore, in so far as no uses are proposed as part of the Site Plan review (as stated on the Public Notices issued by the city and by the applicant in the December 13, 2022 letter to the City), no use will be approved under this Site Plan Review, and all uses on the site (even those allowed under the 1992 B-1 district) will require a future conditional use review. Second, BMC § 38.430.040.A.3.d makes clear that the requirements established under any PUD do not evolve with the rest of the UDC, but only evolve by formal amendment to the PUD. Further, and specific to the Sundance Springs PUD, the Introduction to the Development Guidelines states that the basis for development under the PUD is the Zoning Ordinance in effect on the date of the covenants’ execution. Therefore, the 1992 Zoning Ordinance is enforced under modern BMC § 38.100.050. Third, the PUD’s Master Plan is a binding element of the approved final plan. The surviving Master Plan Map allocates a single 5000 sq. ft. building on Neighborhood Services Lot #2 and limits the use of that building to a “Village Store” (retail). This condition, imposed by the PUD’s Master Plan, is enforced under modern BMC § 38.100.050. Fourth, the City Commission ordered in Condition 29 of the FoFaO that a Market Study must “conclude that 50% of the business will be generated from this area, [or] development of the neighborhood service lots will not be allowed.” The Master Plan Map provided the assumptions used in the Market Study – including allocation of one 5000 sq ft convenience store on Lot #2. Substantial violation of the Study’s assumptions nullifies the study’s conclusion that 50% of the market will be drawn from proximal residences, in which case the Condition 29 requires the commercial lots to be developed as residences. Thus, the effect of Condition 29, ordered by the City Commission, is that development must either: 1) comply with the assumptions of the Market Study, or 2) be residential. Fifth, the recently revised Application #22047 continues to violate the 1992 B-1 district requirements. Specifically, the 1992 B-1 district limits principal activities to interior areas only, in buildings less than 5,000 square feet. See BMC § 18.28.020 (1992). Additionally, per the Staff Report for Z-95125, any proposed use must go through a formal review procedure. The development proposes 3,000 square feet of patio space for outdoor business use, which is highly disproportionate to a 5,000 square foot building limitation.16 It also puts the cart before the horse – the Applicant intends to build a 3000 sq. ft. patio, without the required application and approval for outdoor business uses, meaning that, before outdoor uses have been applied for or approved, the spaces for such uses will be built. This is improper.17 In all, the minimal changes to the application do not justify approval. D. Block Frontage Standards The applicant has removed one required departure request for Block Frontage Standards (based on the fact that Lot #2 is 10’ removed from a street corner rather than “on a street corner”). Regardless, this change does not remedy the narrative for remaining departure requests as outlined in our previous comments. Further, granting the remaining requested departures would cause the buildings to violate the required building locations established on the Master Plan map.18 Should the City, against all evidence, approve #22047, my clients request that such approval be conditioned on obtaining permission from the adjacent HOAs for the proposed trails on HOA properties (in order to fulfill the stated “trail frontage” justification for the departures for block frontage standards) and conditioned on installing sidewalks along South Third (so that, in the winter months, the project’s stated goal of providing easy pedestrian access is met).19 16 The outdoor spaces, if approved, would provide for uses that violate the PUD’s Development Guidelines, which state that “No owner, guest, or invitee may occupy … any Lot in such a manner as to disturb or interfere with the peaceful use, occupancy, or enjoyment of any other Lot Owner in the subdivision.” See Development Guidelines, Art. III, § 3.3. 17 Regardless of uses, the patios are prominent improvements not shown on the PUD’s Master Plan Map and therefore cannot be approved (See BMC § 38.430.040.A.3.d) 18 The Master Plan map shows building locations that were deemed to comply with PUD approval criterion 29 of the “all development” group under 18.54.090.E, which requires that “elements of the site plan (e.g., buildings, circulation, open space, and landscaping, etc.) [must be] designed and arranged to maximize the privacy by the residents of the projects.” Site Plan #22047 undermines this requirement of the PUD by moving buildings and proposed patios substantially closer to neighborhood residences than is allowed by the Master Plan map. 19 We acknowledge that the sidewalks would be installed on Commercial Lot Owners Association (CLOA) property. However, as discussed in prior comments, the CLOA was dissolved more than a decade ago by the state and cannot be legally reconstituted, leaving no legal owner for the CLOA open spaces. Ultimately, per the Development Guidelines, the owners of Neighborhood Services Lots 1 and 2 are responsible for E. Constructive Notice In a December 29, 2022 letter, the Applicant asserts that my clients are on constructive notice of the changing codes and that they are not “good faith purchasers for value in the eyes of the law.” While we disagree, the Letter provide guidance on how to treat the Applicant. Upon purchase of the lot, the owner was on notice of the restrictive covenants and PUD’s Development Guidelines. Specifically, the PUDs covenants at Article 16.1, which explains that every subsequent purchaser of Lot #2, “is and shall be conclusively deemed to have consented and agreed to every covenant, condition and restriction contained herein, whether or not any reference to this Declaration is contained in the instrument by which such person acquired an interest in the Property.” Similarly, the recitals in the Covenant Declarations puts future owners on notice that every Covenant “shall run with the land applying to and binding the present owners and all future owners and successors in interest.” Id., Art. XVIII. Accordingly, the Applicant is “conclusively determined” to have notice of the Covenants. Because the covenants are the PUD’s Development Guidelines, the Applicant is deemed to have notice that these Covenants are binding upon the city, and compliance is required. CONCLUSION In all, as my clients have repeatedly articulated, the proposed development violates many provisions of the covenants and of the binding Development Guidelines and Master Plan of the PUD. Allowing the proposed development to proceed would be improper and the proposal cannot be approved. Sincerely, Robert Farris-Olsen cc: clients Kelley Rischke maintaining the CLOA property. Requiring the Applicant to install the sidewalks would, therefore, place the financial burden of installing sidewalks for wintertime pedestrian access on the appropriate individual(s).