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Home My WebLink About09-14-23 Public Comment - J. Goetz - Statement of Jim GoetzFrom:Myriam Quinto To:Agenda Cc:Jim Goetz Subject:[EXTERNAL]Statement of Jim Goetz Date:Thursday, September 14, 2023 4:15:24 PM Attachments:2023-09-14 JHG Statement.pdf 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. Good afternoon, Please find attached a statement/commentary from Jim Goetz. Thank you. Best,Myriam Myriam QuintoLegal Assistant Goetz, Geddes & Gardner, P.C.35 North Grand | P.O. Box 6580Bozeman, MT 59771-6580T: (406) 587.0618 | F: (406) 587.5144 NOTICE: This electronic mail transmission may contain confidential or Attorney-Client privilegedcommunications. It is not intended for transmission to, or receipt by, any unauthorized persons. Ifyou have received this electronic mail transmission in error, please delete it from your system without copying it and notify the sender by reply e-mail. September 14, 2023 From: James H. Goetz 1019 S. 3rd Street, Bozeman jim@goetzlawfirm.com To: City of Bozeman Attn: Community Development Board agenda@bozeman.net Re: Statement of James H. Goetz (residing at 1019 S 3rd Street, Bozeman), regarding the current effort to overhaul Bozeman’s Unified Development Code (UDC) I oppose the present proposal of the City of Bozeman and its planning staff to revise Bozeman’s UDC, particularly the elimination of residential-zoned areas. My main objection is both to the speed and radicalism of the changes suggested. Under the new proposal single-family neighborhoods can now expect to be infested with neighbors of up to eight units—with no or minimal review. Although this is done in the name of “affordable housing”, there is little evidence that such changes will mitigate that problem. I hope the Board will get to the bottom of how many consultants it has hired to prepare its ill- advised revision to the UDC. More important, I hope the Board will get to the bottom of how much taxpayer money has been paid to these consultants. I believe it is evident that these consultants have their own agenda—to push densification (the flavor of the month in the planning industry). These consultants have little appreciation for the beauty and peacefulness of our residential areas. Bozeman should not be the guinea pig to satisfy the nocturnal emission of nerdy consultants. This is serious business. We have had these residential zones for seventy-five years. I know that builders and developers constantly complain about overregulation, but that should not be elevated over us, the public. R-1 and R-2 zoning has worked reasonably well for Bozeman homeowners. This major shift in zoning policy is tectonic and it should not be made without thorough airing by the Bozeman population. I don’t remember any of the present candidates for City Commission campaigning on this issue, or even raising it for the public. A draconian change of this nature should warrant a public referendum rather than an unctuous performance by an outside planner. Finally, to the extent the City planners argue that these proposed revisions are mandated by state law, particularly SB 382 passed in the last Session, I have two comments. First, the retention of these consultants and this proposal were in the works by the City Planning Department well Community Development Board September 14, 2023 Page 2 before the passage of SB 382. Now that SB 382 is passed, we should realize that the speed at which Bozeman is proceeding is over aggressive and not required. SB 382 gives up to three-to- five years for compliance under Section 2(b)(i) and (ii). More important, now that SB 382 is in effect, the City’s ill-advised approach does not even comply with it because various options in Section 19 of that Act are not carefully addressed. I have written a separate letter to City Attorney Greg Sullivan, on this issue, which I attach. Please reinstate R-1 and R-2 zones. Sincerely, ____________________________ James H. Goetz Resident and Homeowner JHG:mq Enc. James H. Goetz J. Devlan Geddes Trent M. Gardner Kyle W. Nelson Jeffrey J. Tierney Katherine B. DeLong Henry J.K. Tesar Hannah S. Willstein GOETZ, GEDDES & GARDNER, P. C. Attorneys at Law 35 North Grand (zip 59715) P. O. Box 6580 Bozeman, MT 59771-6580 Telephone (406) 587-0618 Facsimile (406) 587-5144 jim@goetzlawfirm.com September 14, 2023 Via Email Only Greg Sullivan Attorney, City of Bozeman gsullivan@bozeman.net Re: SB 382 and the City’s UDC Overhaul Dear Greg: As you know, the City of Bozeman is presently in the process of holding public meetings regarding a proposed overhaul of the Bozeman Unified Development Code. Many persons in residential neighborhoods have objected to this process and to the proposed amendments, particularly to those that eliminate R-1 and R-2 zoning areas. You are also well aware of the fact that I am one of the attorneys who represented Susan Johnson, and other residents of the University Neighborhood, in successful litigation against the City’s deletion of certain prohibitions on Greek Houses without adequate public notice. See, Susan Johnson, et al., v. Alpha Sigma Phi, et al., Cause No DV-2022-1006C. Now, I fear, the City is about to step in it again. The present UDC overhaul professes to be pursuant to Senate Bill 382, enacted by the 2023 Montana Legislature, and which is now in effect. That legislation provides a generous (three-to-five year) phase-in, the timing of which depends on the recency of a municipality’s growth policy. Section 5(1)(2). I write because Bozeman seems about to make the same mistake with its present rushed process. SB 382 (now the law) provides that zoning regulations “must include a minimum of five [of fourteen enumerated ‘housing strategies’].” (Emphasis added.) These, for example, include among others: (a) allow, as a permitted use, for at least a duplex where a single-unit dwelling is permitted;…(c) eliminate or reduce off-street parking requirements to require no more than one parking space per unit;…(j) provide for zones that encourage the development of “tiny houses” and the like. Section 21(2)(c)(ii) does not allow amendment of a zoning regulation unless the recommendation “contains five or more specific strategies from [§ 19] to encourage the development of housing within the jurisdiction…”. Bozeman has several problems on this. First, there is nothing in the present UDC overhaul that purports to comply with, or otherwise address this array of potential approaches. Sullivan, Greg September 14, 2023 Page 2 Second, any governmental consideration of these factors in a municipality’s decision to accept or reject one or the other, must be subject to public participation under Article II, § 9, 10 of the Montana Constitution. Many Bozeman homeowners would, I’m sure, opt for the City to adopt “tiny house” zoned areas, rather than the City’s ill-advised proposed option of eliminating R-1 and R-2 zones. But that, of course, is pure speculation on my part and none of us can say for sure what the public might prefer, without adequate public notice and public hearings displaying all of the options. On this, Judge Breuner’s recent opinion in the Johnson case relied heavily on the seminal Montana case, Lowe v. City of Missoula, 165 Mont. 38, 41, 525 P.2d 551, 552 (1974). As Judge Breuner pointed out, relying on Lowe and its progeny: The Court in Lowe reversed the district court’s approval of a zoning ordinance on the basis that the record before the city council was so lacking in fact information” that the district court’s judgment was an abuse of discretion. 165 Mont at 41, 521 P.2d at 553. Johnson Opinion, at p. 11. See also, Citizens for a Better Flathead v. Board of Co. Comm’rs of Flathead County, 2016 MT 325, ¶20 (quoting Heffernan, ¶87, “states that a governing body ‘must develop a record that fleshes out all pertinent facts upon which its decision was based in order to facilitate judicial review’.”) In short, the City cannot truncate this process, and it cannot ignore critical constitutional public notice and participation requirements. What’s the rush? Obviously, Bozeman has had this proposed revision in the hopper for sometime, and has used various very expensive consultants, at the expense of us, the taxpayers. But SB 382 just went into effect in June, and Bozeman’s and the consultant’s work-product prior to the effective date of SB 382 is outdated because of the enactment of § 19. I urge you to advise the City to back off and go back to the drawing board and make a careful effort to comply with SB 382. Finally, please do not take this letter as a sign I believe that SB 382 is constitutionally sustainable. It probably is constitutionally defective, particularly with its attempt to cut back on public involvement and its attempt to impose “top-down” zoning on local governments, particularly those with self-governing charters. But that’s a debate for another day. I appreciate your consideration of these matters. Sullivan, Greg September 14, 2023 Page 3 Sincerely, __________________________ James H. Goetz JHG:mq CC: Brian K. Gallik/Henry J.K. Tesar