HomeMy WebLinkAbout02-02-24 Public Comment - K. Silvestri - Baxter 80 Annexation and Zone Map Amendment - App. 23208From:Kenneth Silvestri
To:Agenda
Subject:[EXTERNAL]Baxter 80 Annexation and Zone Map Amendment - App. 23208
Date:Friday, February 2, 2024 10:03:53 AM
Attachments:Silvestri 5785 Saxon Way Initial Opposition to Zone Map Amendment App 23208.docx
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Dear Mr. Rogers,
Please accept the attached initial opposition public comment to the Baxter 80 Annexation andZone Map Amendment - App. 23208.
I do hope that all the relevant parties read the attached initial opposition letter thoroughly and
carefully consider the compelling reasons for rejecting the R4 and R5 zoning designation forthis application.
Sincerely,
Kenneth Silvestri
5785 Saxon Way, Unit A Bozeman, MT 59718
Date: February 2, 2024
ATTN: Tom Rogers
RE: Initial Opposition to Application # 23208 – Baxter Annexation and Zone Map Amendment
Address:
Kenneth Silvestri
5785 Saxon Way, Unit A
Bozeman, MT 59178
Dear City of Bozeman Commissioners,
I received a notice of a proposed annexation and associated zone map amendment application
(23208) and reside at an adjacent property 5785 Saxon Way, Unit A, Bozeman, MT 59178 with
sole ownership of one of the units in the Stella View Condo Association.
In light of the application’s R-4 (Residential High Density) and R-5 (Residential High Density –
Mixed) initial zoning designations, I will be filing a protest to these proposed zoning
designations and respectfully ask the City Commissioners to reject these designations based on
the following inconsistencies with the surrounding medium to moderate density neighborhoods
and character of the property containing significant wetlands and request that the City
Commissioners ask the developer to modify this proposal in the following ways to better align
with the Bozeman Community Plan.
Declaratory Reasons for Rejecting R4/R5 Zoning:
(1) The Proposal Would Create a Lack of Transitionary Zoning and Zoning Imbalance:
Although we have pockets of R4 (Residential High Density) designation scattered
throughout the Laurel Glen Homeowners Association and neighborhood, the density
consists of two-story apartment buildings that blend in well with the other two-story
housing types that have setbacks from roads and sidewalks. My residence consists of a
two-story condo unit next to a single-family home with moderate to medium density in
our sub-area of the neighborhood. To maintain consistency with the character of our
neighborhood and R3 zoning designation, I request that a significant south portion of
this proposal be R3 and limited to two-story dwellings with setbacks and small yards to
maintain this moderate to medium density. Moreover, the immediate or extended area
and neighborhood does not include any commercial businesses and we would be
adversely impacted by traffic and noise originating from customers to and from these
unknown types of businesses. The nearest business is approximately a mile in each
direction with the Slate storage business to the west already shining bright stadium
lights to the east which is an unfair nuisance at night that I experience on a daily basis.
As this example illustrates, businesses do not always make good neighbors and there
are legitimate and valid reasons for separating them from residential neighborhoods.
Today’s coffee shop and restaurant becomes tomorrow’s pawn shop and erotic
boutique. Therefore, I request any commercial businesses be located north of the
property along Baxter Lane far away from residences who may have chosen their home
in Laurel Glen many years ago knowing there would be no commercial businesses
nearby.
In Montanans Against Irresponsible Densification (MAID), LLC vs State of Montana
(Cause No. DV-23-1248C) challenging state land use planning laws, a court sided with
the Plantiffs and established that they could be harmed by waking up “one morning to
find that, without any notice at all, a new duplex or ADU (“Accessory Dweilling Unit”) is
going up next door in their previously peaceful and well-maintained single-family
neighborhood.” Along a similar vein with a R5 blanket mixed-use designation, myself
and my neighbors could face significant harm by a business popping up next to or across
from us without much notice or right to challenge its arrival and potential negative
impact on our residences and neighborhood. As the court ruled, this could also violate
my “inalienable rights” of “acquiring, possessing, and protecting property, and seeking
their safety, health and happiness” as enshrined in Montana’s Declaration of Rights,
Article II, Section 3. With varied and different types of businesses moving in and out of
this mixed-use location, it creates a great deal of uncertainty for adjacent property
owners and removes a semblance of reasonable predictability and petitioning a judge
for injunctive relief is warranted to intervene to prevent such harm and set a precedent
for businesses arriving unannounced in established and predictable residential
neighborhoods.
Because I am a direct party to this lawsuit and an arbitrary addition of a business near
my residence could result in irreparable harm with an R5 – Mixed Use designation and
potential violation of my constitutional protections, the City Commission should
postpone this vote until that lawsuit has been settled by the Montana Court System.
In the Principles Applied in this Plan section of the Bozeman 2020 Community Plan, it
asserts that “the needs of new and existing development coexist and they should
remain in balance; neither should overwhelm the other” (Bozeman 2020 Community
Plan, p. 20) An abrupt transition to R-4 (Residential High Density) and R-5 (Residential
High-Density - Mixed) would threaten to overwhelm our more medium to moderate
density neighborhood and would create an imbalance between the two-story character
of our residences and the potential three to four story dwellings with out of place
commercial businesses mixed in.
An R3 designation along the southern border of this property would create a much
needed transitionary buffer or taper between the high density of R4 and R5 thereby
generating that coexistence between the two varying densities.
During a recent January 23rd City Commission meeting that featured a failed 3-2
supermajority vote on a similar proposed property annexation (App. 23127) and R4
high-density zoning designation, the proposal was questioned and ultimately rejected,
in part, because it lacked transitionary zoning that buffered the surrounding lower
density zoned neighborhoods with Commissioners stating the following to this effect:
Commissioner (Mayor) Cunningham stated: “If I were designing this zoning request, I
would sort of bake in a little bit more hard stops around the edges so I’d like to see a
zoning transition….maybe R3 moving to R4 towards the east………we can send signals to
the developer saying we want you to work with the neighborhood and we want you to
make sure there is a feathering…buffering etc. but we cannot require that at this time.”
Commissioner (Deputy Mayor) Morrison stated: “I have some concerns with the way it
relates to sensitive wetlands in the area…….I would similarly like to see if there is going to
be tapering from REMU to Watts lane to Hidden Valley, why not make that in the petition,
this part R4, this part REMU, this part R2 etc. etc. With that in mind, I really just, I don’t……
this isn’t necessarily on this plan, but I just really disagree with idea that there isn’t
anything to talk to your neighbors about until you have a site plan.”
There appears to be opposing conflicting notions here between Commissioners
Cunningham and Morrison of the value and requirement of a site plan for both the
commissioners to make a decision and for affected property owners to fully know and
understand what the risks are posed by the proposed development and a lack of a site
plan simply leaves it up to the whims and vagaries of the developer. As such, it seems
highly imprudent and unfair to the affected adjacent property owners to simply approve
a blanket zoning designation without knowing what that site plan is, as Commissioner
Morrison pointed out.
Local governments through planning decisions wield extraordinary power by deciding
what gets built and where. Given the inherent risks of this power being misused or
misapplied in violation and denial of my “inalienable rights” of “acquiring, possessing,
and protecting property, and seeking their safety, health and happiness,” as enshrined
in Montana’s Declaration of Rights, Article II, Section 3, I should be given the same due
diligence and due process that were afforded the adjacent landowners of App. 23127
with the Commissioners and adjacent landowners being able to see a site plan and
engage with the developer before approving the proposal. Because of the risks of abuse
of this power and authority, every reasonable attempt to shield adjacent property
owners from these risks should be taken, including and up to, this need for a site plan
before rendering a decision or vote. If this equal opportunity of seeing a site plan is not
afforded me and the other adjacent landowners for App. 23208, then this will violate
and deprive us of our U.S. Constitution, 14th Amendment, Section 1 rights where “no
State shall make or enforce law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of the law; nor deny any person within its jurisdiction the
equal protection of the laws.”
Here, I applaud and commend Commissioner Morrison for being true to his word and
acting with integrity as he called for more engagement with the public around housing
development during his recent mayoral campaign and is delivering just that. He is a
beacon of hope in a City that has strayed far from its community and citizens.
To be consistent and fair, as the law requires, in this application of the need for
“feathering,” “tapering,” and “buffering” and have this principle equally applied across
development proposals that do not have a site plan to protect my U.S. Constitution, 14th
Amendment, Section 1, “due process” and equal protection of the laws” rights, I request
the R4 and R5 designation be rejected to build in this much needed transitionary zoning
relief for balance as called for in the Bozeman 2020 Community Plan.
(2) Protection of Sensitive Wetlands and Open Space Enshrined in the Sensitive Lands
Plan and Bozeman 2020 Community Plan:
The recent vote on App. 23127 also featured Commissioners Madgic and Morrison
showing legitimate concern that the R4 high-density designation would have for the
sensitive wetlands on and around that property as well as downstream water rights. The
proposed R4 and R5 high density designations for App. 23208 would similarly threaten
the significant amount of sensitive wetlands that spread out from several creeks,
including Baxter Creek, Ajacker Creek and McDonald Creek, in the area and the R4 and
R5 zoning designations should be rejected on that basis for the same reason.
Because this property contains significant sensitive wetlands, I request that the
developer with modifications reserve and create open space, trails and parks around
these wetlands to preserve them for wildlife habitat, for the enjoyment and well-being
of the residents of all the surrounding areas and to increase walkability through the
development to maintain a “high-quality environment.”
According to the Bozeman 2020 Community Plan under the City Responsibility section, it
states that:
“the City’s primary function is to provide a safe, healthy, and high-quality environment
that supports the physical, social, and economic welfare of its residents. For the
Bozeman community to continue to prosper, all residents need equitable access to
opportunities to advance their well-being regardless of their circumstances. The way a
community is shaped through………green spaces can contribute to the well-being of
residents” (Bozeman 2020 Community Plan, p. 21).
In the Laurel Glen HOA, we are blessed with Boulder Creek Park along Baxter Creek for
this purpose and the residents of The Lakes at Valley West have a similar refuge along
Baxter creek to the north. To further extend a corridor of well-being and green space for
the future residents of this development as well as neighboring developments, I request
that the developers of this property and developers of the adjacent properties create a
large park from Oak Street and continue to Baxter Lane along Baxter creek and from
Durston Street to Baxter Lane along Ajacker Creek with walking paths and reserve the
wetlands on this property as open green space to maintain a “high-quality environment”
for the future and existing residents of this area. As the Bozeman 2020 Community Plan
states, “gathering places and open spaces, including parks and trails, should be in
convenient locations to those they serve” (Bozeman 2020 Community Plan, p. 20)
Failure to uphold this fundamental City responsibility function will deny the future
residents of this development equal access to green space and place the burden to
provide it, including costs to maintain and upkeep, to the residents of the Laurel Glen
homeowners association as the numerous residents of a high density development will
seek out our parks without contributing their own maintained park for all of our well-
being.
In sum, this could raise serious equal access, cost burden, and uneven application of the
regulations and rules issues that a court may need to resolve on behalf of Laurel Glen
HOA residents and thus delay the development of potential intended affordable housing
for these future residents, if that is truly the underlying justification for an R4 and R5
high density mixed-use designation.
(3) Additional Questions, Issues and Concerns:
As Oak Street becomes a vital east to west arterial road for Bozeman with exponential
growth in increased traffic, will Oak Street to the south of this proposed development
be expanded to include two additional east to west lanes to accommodate the
increased traffic that will result from current and future high density developments
along West Oak street or will the increased traffic be congested and funneled into one
lane near my residence and pose risks to my safety? Therefore, I request that the City
and developer conduct a thorough and detailed traffic study to make sure our safety is
not compromised. Will there be a large paved pathway included along two additional
lanes to encourage and accommodate residents who will walk and bike to the nearby
high school, the recreational sports fields, and new businesses across from the high
school and Gallatin Regional park? Given the City’s emphasis on walkable
neighborhoods as outlined in the Bozeman Community Plan and elsewhere in City plans
and documents, a wide paved path along the north side of Oak Street should be
required to encourage non-motorized travel to these nearby high trafficked
destinations, especially since parking at the recreational fields often overflows illegally
onto Flanders Mill Road during sporting events.
Lastly, my residence is granted additional space and safety by being across Oak Street
and through a backyard from the west to east high-voltage power lines that run parallel
to the road. Will the future residents and dwellings of this development be afforded this
same setback space and safety? Three-or-four story dwellings that come with R4 and R5
density in such close proximity to high-voltage power lines may pose a serious health
and safety risk for the residents that inhabit them.
Taken together, the lack of transitionary zoning to create a buffer or taper that two of the
Commissioners have previously explicitly stated as an important value in a prior vote and
supported by the Bozeman 2020 Community Plan, the potential to harm myself and my
neighbors through imposing arbitrary commercial businesses on our well-established
residential neighborhoods, and the serious threat posed to sensitive wetlands throughout the
property that would deprive residents of equal access to those beneficial areas, I strongly urge
you to reject this inequitable and misaligned proposed R4 and R5 zoning designations for these
compelling evidence-based reasons rooted in City plans, the Montana Constitution and the US
Constitution.
In closing, I sincerely hope that the City Commissioners will consider the full range of issues that
this proposal entails and fully balance the needs of the impacted surrounding residents with the
interests of the developer who owns this land in accordance with the Bozeman 2020
Community Plan, the Sensitive Lands Plan, and, most importantly, my fundamental
constitutional protections in the form of ““inalienable rights” of “acquiring, possessing, and
protecting property, and seeking their safety, health and happiness” as enshrined in the
Montana’s Declaration of Rights, Article II, Section 3 to provide me and my neighbors with
some semblance of reasonable predictability for our homes and neighborhoods and guarantee
our US Constitution, 14th Amendment, Section 1 rights to “due process” and “equal protection
of the laws” by granting us the same opportunity for Commissioners and the public to see a site
plan before voting.
I will be following up and submitting this as formal protest along with the members of the Stella
View Condo Association.
Pursuant to Montana Code 2-6-101 et seq. and Montana Code 2-3-201 et seq., I require that
any records, meetings, phone call logs, communications, electronic data entry logs,
correspondence, emails regarding this proposal and App. 23208 involving City Commissioners,
City Officials, Community Development Board members, hired consultants, City Planners and,
last but not least, the developers or owners of that property in question be strictly kept and any
meetings documented and video recorded to ensure transparency and protect the public’s right
to know and be made available to the adjacent owners, the public, and as evidence for any
necessary future litigation regarding App. 23208 and App. 23127
Thank you for taking my concerns into consideration and for using the public’s time to fully read
this protest letter. I, along with my fellow neighbors and Laurel Glen HOA members, eagerly
await your decision on this very important matter that will radically affect and upend our lives
and neighborhoods.
Respectfully,
Kenneth Silvestri
5785 Saxon Way, Unit A
Bozeman, MT 59178