HomeMy WebLinkAbout06-13-23 Public Comment - G. Buckley - Public Comment on Site Plan 22047From:Gerald Buckley
To:Agenda
Subject:Public Comment on Site Plan 22047
Date:Tuesday, June 13, 2023 9:50:20 PM
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From: Gerald Buckley, Email: loftbuckley@gmail.com
Address: 413 Peace Pipe Dr, Bozeman, MT 59715
RE: Public Comment on Site Plan 22047
Dear City Commissioners, Members of the Community Development Board, Community
Development Directors, and Planning Department Staff:
I have been a resident of Bozeman for 19 years. My wife, Elisabeth Swanson, and I have lived
in our current residence at Peace Pipe Dr. Bozeman, for 17 years. From our back porch we can
see the site for the proposed Project 22047, and we can stand on the site by walking 3-4
minutes across an open field to reach it. We have known since we purchased our lot in
Sundance Springs 18 years ago that a commercial building would eventually be built on this
site. We have no problem with a commercial development as long as the project conforms
with the Sundance Springs PUD and Master Plan and Development Guidelines. The
proposed Site Plan 22047 currently does not meet that criterion.
I am particularly dismayed that the most current design plan for Project 22047 actually
increases the outdoor patios from the originally proposed 2,000 sq ft to 3,000 sq ft. As I noted
in my Public Comment on October 27, 2022, any outdoor patios are problematic. As discussed
in my comments below, the patios are not shown on the Master Plan Map and therefore
represent "improvements" that were not approved under the PUD and cannot be allowed by
the City (See BMC 38.430.040.A.3.d).
I strongly endorse the following points researched and composed by a team of neighbors:
The Sundance Springs PUD
The Sundance Springs PUD is a "Master Plan and Development Guidelines Only" PUD.
Therefore, the requirements of the PUD are contained within the "Master Plan" and
"Development Guidelines" contained within the PUD's Approved Final Plan (Document Z-
9812).
The Master Plan and Development Guidelines
BMC 38.430.040.A.3.d forbids City Personnel from issuing development approvals that do not
comply with the terms of a PUD's Approved Final Plan. Therefore, any development under the
PUD must comply with the PUD's approved final Master Plan and Development Guidelines.
The missing Approved Final Plan
I recognized that the record of the Approved Final Plan has been lost by the City. Based on
the recent correspondence between the City and the Applicant for Site Plan #22047, I also
understand that the City is attempting to "reconstruct" the terms of the missing Approved
Final Plan in order to approve Site Plan #22047.
I remind the City that approving a Site Plan in the absence of the PUD's Approved Final Plan is
a violation of the law (BMC 38.430.040.A.3.d).
Further, I recognize that the PUD's Approved Preliminary Plan (Document Z-95125) should
contain a draft of the Master Plan and Development Guidelines approved by the City
Commission. However, I understand that the portion of the record describing the PUD's
preliminary Master Plan (listed in the Z-95125's table of contents) is missing from document Z-
95125. The same record is also missing from P-9539 (the Approved Preliminary Plan and
Preliminary Plat for Phase 1 of Sundance Springs). Therefore, the only remaining record of the
PUD's Master Plan is the Master Plan Map found in what remains of Z-9812.
Third, it appears that the City is planning to ignore most of the Development Guidelines and all
of the Master Plan Map in its attempt to reconstruct the PUD's requirements. Instead, the
City appears ready to assess Site Plan #22047 against only the Commission's "Conditions of
Approval" for the preliminary PUD plan (Z-95125). This is, again, against the law
(BMC 38.430.040.A.3.d) not only because the Approved Final Plan is missing, but because
known elements of the Approved Final Plan (the Master Plan Map and the Development
Guidelines) are being ignored.
In the end, Site Plan #22047 violates virtually all of the Architectural Guidance and many other
requirements included in the PUD's Development Guidelines and Master Plan Map, and
therefore must be disapproved.
Business uses on the Site
In a recent letter, the Applicant argued that the PUD permits any business uses associated
with the modern B-1 zoning district. This is incorrect. The Staff Report for Z-95125
makes clear that the PUD did not approve ANY business uses on the Neighborhood Services
lots whatsoever, and that approval of ANY proposed business use would be required as part of
the Site Plan application or as a subsequent conditional use approval. Because there are no
uses specified by the Site Plan, the City must conduct a full conditional use approval for any
proposed business use on the site in the future.
Large Outdoor Patios
In reference to the unapproved business uses, the large outdoor patios would create spaces
for outdoor business uses, which have been neither applied for nor approved (see "Business
Uses" above). The size of the patios (3000 sq ft), are disproportionate to the 5000 sq ft
building limit and are not shown on the Master Plan Map and therefore represent
"improvements" that were not approved under the PUD and cannot be allowed by the
City (See BMC 38.430.040.A.3.d). The PUD's Development Guidelines (enforceable under
BMC 38.100.050.A) forbid occupation of any lot in a manner that will disturb the peaceful
enjoyment of other lots in the subdivision, which outdoor use at this scale surely would. The
proposed patios are therefore fatal to Application #22047; it must be denied.
The 1992 Zoning
In its recent letter, the City has argued that only a subset of the covenant must be enforced.
However, ANY applicable subset of the covenants must be considered in the context of the
covenants' legal declaration. The declaration states that all covenants shall be enforced
beyond the requirements of the zoning and development code that was in effect on the date
the covenants were executed (the zoning in effect in 1998). Therefore because the City
acknowledges that at least some of the covenants must be enforced, they must be enforced
beyond the requirements of the 1992-era zoning (which was in effect in 1998).
Site Plan #22047 violates many of the terms of the 1992-era zoning including setbacks and
building sizes. It must be denied.
Parking
The City's recent letter addressed the City's position on Parking requirements. The Site Plan
has a parking demand of 68 spaces but only provides 41, thereby creating a demand for on-
street parking, which was explicitly prohibited by the City Commission to ensure that
Emergency Response Vehicles can access the subdivision on the 24' wide roads. Because the
demand for on-street parking will create a public safety issue, the Site Plan must be denied
(BMC 38.100.040, BMC 38.100.050).
In the end, the Site Plan violates the 1992-era parking requirements specified in both the
Introduction to the Development Guidelines and in the body of the Development Guidelines.
Therefore, again, Site Plan #22047 must be denied.
Market Study
The City Commission ordered a Market Study. In order for the Commercial Development to
be allowed, the Market Study had to conclude that 50% of the market for Commercial
Development on the Neighborhood Service's lot would come from the surrounding
residences. The Market Study reached this conclusion by assuming that Neighborhood
Services Lot #2 (the subject of Application #22047) would contain a 5000 sq ft convenience
store.
By violating the assumptions of the Market Study, Site Plan #22047 invalidates the Study's
conclusion that 50% of the market would come from the surrounding neighborhood.
Therefore, the proposed commercial development on Lot #2 is disallowed.
Constructive Notice
The Development Guidelines state that the Applicant is on "constructive notice" of the PUD's
requirements, agrees to the same, and is legally bound to them. I expect the City to ensure
the applicant lives up to the terms of the PUD's Master Plan Map and Development
Guidelines, which are requirements of the PUD that are known at this time -- even in the
absence of the Approved Final Plan.
Summary
I insist that the requirements of BMC 38.430.040.A.3.d be followed by the City and that
Application #22047 be disapproved until such time as the Approved Final Plan is located or
there has been a formal process to reconstruction of the terms of the PUD's Approved Final
Plan, including the opportunity for public participation in such a reconstruction.
Any reconstruction must include a reconstruction of the terms of the Master Plan and the
Development Guidelines. Enforcement of the same is binding upon the City.
Until such time, Site Plan #22047 must be disapproved because the Approved Final Plan is
missing (See BMC 38.430.040.A.3.d), and because Application #22047 violates the PUD's
Master Plan Map, Development Guidelines, and the 1992-era zoning, all enforceable
under modern BMC 38.430.080.A, BMC 38.430.040.A.3.d, BMC 38.100.050, and BMC
38.100.080.
Thank you for considering my comments.
Sincerely,
Gerald Buckley
Gerald Buckley