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Home My WebLink About06-13-23 Public Comment - L. Poole - Comments Re_ Project 22047From:Larry Poole To:Agenda Subject:Comments Re: Project 22047 Date:Tuesday, June 13, 2023 3:00:51 PM 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. To Whom it May Concern: I am writing to comment on Project 22047 for the Sundance Springs Commercial Lot 2. As a winter resident that spends from early Nov. to early April in Bozeman I find the proposal of the applicant for the development of Lot 2 and some of the City's responses to the applicant to be prediculary bothersome in terms of ignoring the approved Sundance Springs PUD and other provisions of the BMC. 1. 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). As such 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. 2. Additionally, I recognize 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. In 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 an 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 your consideration of the above. Sincerely, Larry Poole art@printsbylarry.com