HomeMy WebLinkAbout06-14-24 Public Comment - E. Arnold - Opposition to Harper's Corner ZMAFrom:Corrie Larson
To:Bozeman Public Comment
Cc:Greg Sullivan; Elizabeth Cramblet
Subject:[EXTERNAL]Opposition to Harper"s Corner ZMA
Date:Friday, June 14, 2024 8:54:07 AM
Attachments:6-14-24 Comment Letter - Harper"s Corner.pdf
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Please see attached comment letter sent on behalf of Ray and Mary Seed, Greg and Shannon
Vidmar, Dale Lillejord, and Brandon and Christy Beamer.
Corrie LarsonAdministrative AssistantGallik & Bremer, P.C.777 E. Main St., Suite 203PO Box 70Bozeman MT 59771-0070ph: 406-404-1728fax: 406-404-1730
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1
GALLIK & BREMER, P.C.
Attorneys at Law
777 East Main Street, Suite 203
Post Office Box 70
Bozeman, Montana 59771-0070
June 14, 2024
Bozeman City Commission SENT VIA EMAIL ONLY
c/o City Clerk
PO Box 1230
Bozeman, MT 59771-1230
Comments@bozeman.net
RE: Second Amended Harper’s Corner Zone Map Amendment (Application No.
23127)
Dear Honorable Bozeman City Commission,
We submit this comment on behalf of our clients, Raymond and Mary Seed, Greg and Shannon
Vidmar, Dale Lillejord, and Brandon and Christy Beamer, and in opposition to the proposed
Harper’s Corner Zone Map Amendment (“ZMA”). The subject property is comprised of two
approximately 20-acre lots, described as Tracts 1 and 2 of Certificate of Survey 408A (the
“Property”). Our clients’ residential properties are bounded by Watts Lane and Hidden Valley
Road, to the immediate west of the Property. Our clients will be personally and detrimentally
impacted by the ZMA and future high-density development.
We previously submitted this comment regarding the applicant’s first amended Harper’s Corner
ZMA. The applicant first presented a ZMA to the Commission on January 23, 2024, seeking to
zone the Property as R-4 (Residential High Density). The Commission properly denied the request.
The applicant then applied for an amended ZMA to the Commission, but with no modifications to
the application. The Commission was scheduled to hear that request in May 2024. The applicant
subsequently withdrew that request and has now submitted the second amended ZMA.
Through the second amended ZMA, the applicant is seeking to split the zoning on the Property
such that Tract 1 is zoned R-3 (Residential Medium Density) and Tract 2 is zoned R-4.
Our clients do not believe that any material facts have changed to now warrant the approval of the
second amended application. The applicant failed to take genuine, good faith steps to mitigate our
clients’ concerns. The R-3/R-4 density is still incompatible and not suitable with the character of
2
the surrounding agricultural and low-density rural residential properties, fails to promote public
health and safety due to the inadequate road network, and amounts to spot zoning.
On behalf of our clients, we respectfully request the Commission deny the ZMA. In the alternative,
we ask the Commission to exercise its authority under Section 38.260.120.D.2, Bozeman
Municipal Code (“BMC”). That section authorizes the City Commission to adopt a zoning
designation different than that applied for upon continuation of the hearing and ability of the
applicant to protest. Should you not deny the ZMA outright, we request the Commission designate
Tract 1 as R-2 and Tract 2 as R-4 or, less preferably, designate the entire property as R-3.
Background
The Commission previously approved the Property’s annexation, but the originally requested R-4
designation was denied in a 2-3 vote due to the supermajority (4-1) vote required by our clients’
protests.
Deputy Mayor Morrison and Commissioner Madgic voted against the R-4 zoning. They did so
based on the incompatibility of the proposed high density with the rural residential and agricultural
character of the surrounding properties and the lack of predictability as to the density that could
be developed on the Property. Deputy Mayor Morrison and Commissioner Madgic also denied the
R-4 designation due to the lack of connectivity, resulting reliance on automobiles, and the public
health and safety concerns created by the existing inadequate county road network.
All Commissioners were dismayed by the applicant’s disregard for the neighboring property
owners’ input. The Commission recognized our clients deserve greater predictability and
suggested the zoning be tapered from higher to lower density near our clients’ properties. As a
result, the Commission encouraged the applicant to engage with their neighbors and incorporate
their input into a revised application.
Unfortunately, the applicant has failed to engage our clients in a meaningful manner. While the
applicant met with their neighbors in early February, there has been consistent refusal to place any
binding restrictions on the Property, whether through tapered zoning or private covenants, to
transition density away from our clients’ properties.
The applicant has not united with the neighbors to create any mutually advantageous path forward.
This lack of mitigation supports the Commission’s denial of the request for R-3/R-4 medium and
high-density residential zoning.
//
3
ZMA Criteria
Section 76-2-304, Montana Code Annotated (“MCA”), establishes the criteria and guidelines for
municipal zoning. A zoning regulation must be made in accordance with the City’s growth policy
and designed to: (i) secure safety from fire and other dangers; (ii) promote public health, public
safety, and the general welfare; and (iii) facilitate the adequate provision of transportation, water,
sewerage, schools, parks, and other public requirements. § 76-2-304(1), MCA.
In considering these criteria, the City Commission also must evaluate: (a) whether the zoning will
make reasonable provision for adequate light and air; (b) how the zoning will effect motorized and
nonmotorized transportation systems; (c) whether the zoning promotes compatible urban growth;
(d) the character of the existing and proposed zoning and the proposed zoning’s peculiar suitability
for particular uses and (e) whether the zoning encourages the most appropriate use of land
throughout the City’s jurisdictional area. § 76-2-304(2), MCA.
The burden is on the applicant to demonstrate the ZMA meets the required criteria and guidelines.1
As previously determined, the applicant cannot satisfy these standards. Split R-3/R-4 zoning on
this Property remains incompatible with the City’s growth policy and the character of the
surrounding rural residential neighborhood and agricultural uses. There also are real concerns
presented to public health and safety due to the existing conditions of the county road network and
built environment. The request amounts to nothing more than spot zoning.
1) The Application Does Not Substantially Comply with the Community Plan.
The first criterion requires the proposed R-3/R-4 designation to comply with the BozemanMT 2020
Community Plan (“Community Plan”). The Montana Supreme Court has interpreted this standard
as requiring “substantial compliance.”2 The application does not substantially comply with the
Community Plan. The split R-3/R-4 zoning fails to sufficiently transition from higher density to
lower density to the west, adjacent to our clients’ properties. The designation also would create an
area of high density without any connectivity to the City’s existing transportation network.
//
1 BozemanMT 2020 Community Plan, Section 5 (“Amendments + Review), p. 71.
2 Hartshorne v. City of Whitefish, 2021 MT 116, ¶ 19, 404 Mont. 150, 486 P.3d 693 (quoting Heffernan v. Missoula
City Council, 2011 MT 91, ¶ 79, 360 Mont. 207, 255 P.3d 80) (“A governing body must substantially comply with
its growth policy in making zoning decisions.”))
4
a. Lack of Gradual or Predictable Transition in Density
The Community Plan encourages higher density in proximity to commercial mixed use and
discourages high density abutting low, residential density. The proposed ZMA conflicts with this
principle and will create an area of high density in an area of primarily agricultural and low, rural-
residential density.
The following goals, with emphasis added, will be negated by the application:
Goal N-1: Support well-planned, walkable neighborhoods.
N-1.11 Enable a gradual and predictable increase in density in
developed areas over time.
Goal DCD-2: Encourage growth throughout the City, while enhancing the pattern
of community development oriented on centers of employment and activity.
Support an increase in development intensity within developed areas.
DCD-2.2 Support higher density development among main corridors
and at high visibility street corners to accommodate
population growth and support businesses.
DCD-2.7 Encourage the location of higher density housing and
public transit routes in proximity to one another.
Goal RC-3: Collaborate with Gallatin County regarding annexation and
development patterns adjacent to the City to provide certainty for landowners and
taxpayers.
RC-3.1 Work with Gallatin County to create compact, contiguous
development and infill to achieve efficient use of land and
infrastructure, reducing sprawl and preserving open space,
agricultural lands, wildlife habitat, and water resources.
RC-3.2 Work with Gallatin County to keep rural areas rural and
maintain a clear edge to urban development that evolves as
the City expands outwards.
RC-3.3 Prioritize annexations that enable the incremental
expansion of the City and its utilities.
The Future Land Use Map designates the Property as “Urban Neighborhood.” In line with the
above goals, the description for the Urban Neighborhood designation notes that, although not
required, higher density residential areas are encouraged in “proximity to commercial mixed-use
5
areas to facilitate the provision of services and employment opportunities without requiring the
use of a car.”3
During the January hearing, the Commission recognized the Community Plan requires a gradual
and predictable increase in density over time. Commissioner Madgic voted against the R-4 zoning
because the application fails to provide either a gradual increase in density or any predictability
for our clients. The Commission further commented that it wanted to see a transition in density
from higher density to the east to much lower density to the west, tapering towards our clients’
properties. The revised R-3/R-4 split does not sufficiently taper the zoning to the neighboring low
rural agricultural density.
The Community Plan recognizes that “[i]nfill development and redevelopment should be
prioritized, but incremental compact outward growth is a necessary part of the City’s growth.”4
Similarly, the Plan relies on the policy that the “needs of new and existing development coexist
and they should remain in balance; neither should overwhelm the other.”5
The R-3/R-4 designations significantly conflict with these policies and goals. The R-4 designation
will allow for high-density residential use including apartment buildings, two to four household
dwellings, and more than five attached townhouses and rowhouses.6 The R-3 designation will
allow for lower, but still medium density use adjacent to our clients’ rural properties, including
apartment buildings, two to four household dwellings, and five or less attached townhouses and
rowhouses across the street from a rural residential and agricultural neighborhood.7
There is no predictability for our clients regarding the density or type of housing that will be
constructed across the street. This is not incremental growth, and the density will not co-exist or
balance the rural and agricultural character of the surrounding properties.
b. Absence of Connectivity and Transportation Capacity
In addition, the proposed R-3/R-4 designations will conflict with the Community Plan’s policies
and goals advancing connectivity and multi-modal transportation. The only existing access to the
Property is Hidden Valley Road, running directly to the west and along our clients’ properties.
Hidden Valley Road is a narrow county road, lightly paved and with deep drainage ditches along
both sides, connected to the county-road network, and not currently constructed to City standards.
3 Community Plan, p. 52 (Chapter 3 -Future Land Use).
4 Community Plan, p. 20 (emphasis added).
5 Id. (emphasis added)
6 Table 38.310.030.A, BMC.
7 Id.
6
While the Property’s development may eventually allow for the extension of Catamount Street
along its southern boundary, the extension is dependent on the development of the parcel to the
Property’s east. That property was only recently annexed and designated as REMU. It is unknown
when or how that property will be developed.
If the Property is developed first, the only access will be Hidden Valley Road. This will place a
significant increase in traffic on Hidden Valley and greatly impact the neighbors residing along a
rural county road not designed for urban high-density use. It also will adversely impact traffic
safety, and emergency access and egress.
The Community Plan recognizes the importance of integrating development based on necessary
infrastructure. It relies on the following principle:
Transportation infrastructure is vital in supporting desired land use patterns.
Therefore, the two must be coordinated. Future infrastructure should favor
interconnected multimodal transportation networks (i.e. infrastructure for
bicycle, pedestrian, and transit modes of transport in addition to automobiles.)8
In addition, the Community Plan proposes the following goals that, in addition to those set forth
above, disfavor R-3/R-4 split zoning on the Property:
Goal N-1: Supporting well-planned, walkable neighborhoods.
N-1.9 Ensure multimodal connections between adjacent
developments and increased connectivity.
Goal N-2: Pursue simultaneous emergence of commercial nodes and residential
development through diverse mechanisms in appropriate locations.
N-2.2 Revise the zoning map to support higher intensity
residential districts near schools, services, and
transportation.
Goal DCD-3: Ensure multimodal connectivity within the City.
DCD-3.5 Encourage increased development intensity in commercial
centers and near major employers.
The transportation infrastructure needed to develop the Property as R-3/R-4 zoning is absent. The
Property is surrounded by a county road network not capable of supporting higher density
development.
8 Community Plan, p. 20 (emphasis added).
7
The Commission recognized these concerns in voting against the prior application. Deputy Mayor
Morrison concluded that high density development on the Property would not be connectible, as
it would not be walkable or bikeable. Consequently, future development would create auto-
dependent development in conflict with the City’s plans. Commissioner Madgic similarly
expressed concern about the existing county road network and questioned the ability of the existing
infrastructure to support R-4 density.
The Commission should again decline to approve the proposed ZMA. The requested R-3/R-4
density conflicts with the Community Plan’s focus on gradual and predictable density. It also lacks
an existing transportation network capable of supporting the high residential density proposed for
the Property.
2) The Application Is Not Designed to Promote Public Health, Safety, and General
Welfare, Nor Will it Facilitate the Adequate Provision of Transportation.
Section 76-2-304(1), MCA, next requires the Commission to determine the R-3/R-4 designations
will promote public health, safety, and welfare, and facilitate the adequate provision of
transportation, among other criteria. In evaluating these elements, the Community Plan explains
that “[c]onsidering what infrastructure is already present, such as in infill situations, or whether
placing one zoning district next to another may reduce travel distances and increase walkability,
are also factors that can play into this criterion.”9
During the January meeting, Commissioner Madgic recognized the public health and safety
concerns relating to the existing county road network. Hidden Valley Road is not currently
constructed to City standards as a collector roadway. It is a narrow, two-lane road with sometimes
deep ditches. It is connected to other county roads, none of which are currently constructed to
support high-density development. The timing for the future connection of Catamount Street is
unknown.
Commissioner Madgic properly recognized the real safety concerns raised by our clients in their
protest letters. As discussed further below, placing high density development on the existing rural
road network will create unnecessary hazards for the neighborhood clients, those residing on the
Property, and the general public. While the infrastructure is planned, it is not yet in existence to
support the development.
3) The R-3/R-4 Zoning Designations Will Negatively Affect Motorized and
Nonmotorized Transportation Systems.
The application will create a public safety issue on an already over-capacity county road network.
9 Community Plan, p. 74.
8
Until the neighboring property to the east is developed at some unknown date, residents of the
Property will be required to use Hidden Valley Road for access. This road separates the Property
from our clients’ properties to the immediate west. Hidden Valley Road is not designed to City
standards and cannot support a high-residential development without creating dangerous driving
conditions for those navigating the roads.
Residents on the Property will need to travel north on Hidden Valley Road to its intersection with
East Valley Center Road, or west on Hidden Valley Road to its intersection with Harper Puckett
Road. Both roads are narrow, two-lane roads with no shoulders, and with deep agricultural
drainage ditches along their sides. There also are limited traffic controls at the intersections with
East Valley Center Road and Harper Puckett Road.
At the southwest corner of the Property, Hidden Valley Road veers to the west and uphill towards
Harper Puckett Road. Watts Lane, on which our clients live, and then intersects with Hidden Valley
Road at the top of this hill. There are significant sight limitations for those navigating up the hill
towards Watts Lane. A drastic increase in density on the Property will only exacerbate this danger.
The surrounding properties consist of rural residential homes and agricultural uses. These county
roads are the only means for those farming and with livestock to move equipment and livestock.
In addition, school buses stop along the roads to pick up children. These roads are not intended for
thousands of daily trips created by a high-density urban neighborhood.
Further, as Deputy Mayor Morrison recognized, the location of the Property provides no
connectivity to the City’s existing transportation system. Even when Catamount Street connects,
at an unknown date, multi-modal transportation will be difficult. This will exacerbate the increased
reliance on automobiles, contrary to the City’s goals to promote walkable and bikeable
communities. The proposed high density will only detrimentally impact the existing transportation
system.
4) The Application Does Not Promote Compatible Urban Growth.
Zoning the Property as split R-3/R-4 will create a narrow peninsula of high-to-medium density
among rural residential and agricultural uses. The properties to the north, west, and south are all
located outside of the City. The character is low-density rural residential. The properties also are
used for agriculture, such as hay and alfalfa, and for grazing livestock, including horses, cattle,
sheep, and llamas. Our clients and the surrounding landowners deserve predictable growth on the
Property that is compatible with the existing rural lifestyles.
The Property and the land to the south are currently zoned AS (Agricultural Suburban) within the
Gallatin County/Bozeman Area Zoning District (aka “Donut”). The AS subdistrict is designated
9
as low density. It is intended to “provide for Agricultural Activities and rural residential Uses on
larger tracts of land, and to maintain and preserve the rural character and pattern of development
of outlying areas in compliance with the Gallatin County/Bozeman Area Plan.”10 As such, allowed
principal residential uses are limited to one single-family dwelling per parcel of record.11 Density
is restricted to one dwelling unit per 20 acres unless approved as clustered development, in which
case the minimum lot size is one acre.12
The property to the north is zoned Residential Manufactured Home (R-MH). This zoning allows
for single-family mobile home developments at a medium density.13 This property is developed as
the Hidden Valley Trailer Court. The trailer court’s size is comparable to the Property, but built
up with only 85 units.
Our clients’ properties are located to the immediate west, in Minor Subdivision 25 and Minor
Subdivision 26. These are low-density residential neighborhoods consisting of only eight lots,
approximately five-acres each. There are only four homes built up directly adjacent to the Property.
In contrast to the surrounding properties, the applicant proposes R-4, residential high density and
R-3, residential medium density. The intent of the R-4 district “is to provide for high-density
residential development through a variety of housing types,” including single and multi-household
dwellings.14 Per Section 38.300.100.E, BMC, R-4 “is appropriate for areas adjacent to mixed-use
districts, commercial districts and/or served by transit to accommodate higher density of residents
in close proximity to jobs and services.”
Similarly, the intent of the R-3 district “is to provide for the development of one-to-five-household
residential structures near services facilities within the city.”15 Section 38.300.100.D, BMC,
states that R-3 “is appropriate for areas with good access to parks, community services and/or
transit.”
It is clear the surrounding properties do not provide mixed or commercial uses, they are not served
by appropriate transportation, and they are not in close proximity to parks, jobs and services.
In considering compatible urban growth, the Community Plan explains the City’s policies
“consistently emphasize quality of development, infill in a manner that allows for additional
10 Section 6.01, Gallatin County/Bozeman Area Zoning Regulation (“Zoning Regulation”) (amend. July 2018),
available online at https://gallatincomt.virtualtownhall.net/sites/g/files/vyhlif606/f/pages/do_02_22.pdf.
11 Section 6.02.2, Zoning Regulation.
12 Section 6.05, Zoning Regulation.
13 Section 10, Zoning Regulation.
14 Section 38.300.100.E, BMC.
15 Section 38.300.100.D, BMC (emphasis added).
10
intensification over time, connecting land development to other community priorities like
multi-modal transportation, cost efficient user-pays provision of facilities, and reasonable
incremental development at the City edge.”16
The application is in direct conflict with these policies. There will be no intensification over time,
no connection to multi-modal transportation, and no incremental development along the City’s
edge. Instead, the split R-3/R-4 designations will create a drastic high and medium-density
peninsula surrounded by agricultural and low-density residential uses. This is not “compatible
urban growth.”
The BMC defines “compatible development” as:
The use of land and the construction and use of structures which is in harmony
with adjoining development, existing neighborhoods, and the goals and
objectives of the city's adopted growth policy. Elements of compatible
development include, but are not limited to, variety of architectural design; rhythm
of architectural elements; scale; intensity; materials; building siting; lot and
building size; hours of operation; and integration with existing community
systems including water and sewer services, natural elements in the area,
motorized and non-motorized transportation, and open spaces and parks.
Compatible development does not require uniformity or monotony of architectural
or site design, density or use.17
The R-3/R-4 designations are not in harmony with adjoining development and existing
neighborhoods. This is apparent from the repeated protest letters received from adjacent neighbors
strenuously objecting to the designation and requesting lower density. It also is apparent from the
inadequate road network and absent water and sewer infrastructure serving the Property, the
conflicting goals in the Community Plan promoting gradual and predictable urban growth, and the
inability to connect the Property to any multi-modal transportation system. The application does
not promote compatible urban growth and should be denied by the Commission.
5) The Existing Character of the Area Is Not Suitable for R-3/R-4 Zoning.
Similarly, the Commission should deny the R-3/R-4 designations because they are inconsistent
with the existing rural residential and agricultural character of the surrounding properties.
Under this criterion, the Community Plan explains “both the actual and possible built environment
16 Community Plan, pp. 75-76 (emphasis added).
17 Section 38.700.040, BMC (emphasis added).
11
are evaluated.”18 It also “is appropriate to consider all the options allowed by the requested district
and not only what the present applicant describes as their intentions.”19 This is important because
the zoning runs with the land, but the owner does not. The applicant today could sell the Property
tomorrow and the intentions for the Property could change drastically. Because the applicant has
declined to adopt any private covenants, the only predictability afforded our clients and
surrounding landowners are the uses and standards set forth in the BMC.
The Community Plan provides helpful instruction to the Commission in considering this criterion,
laying out several factors for consideration. The Plan provides that, first, “the Commission must
consider the nature of the dominant uses allowed in a district compared with adjacent properties.”20
Next, “the Commission should consider differences in allowed intensity between the districts such
as different in height, setbacks, or lot coverage,” because “[t]he greater the difference the more
likely conflict is possible.”21 Third, “the Commission must decide whether a larger community
benefit exists” from the proposed zoning, such as “locating a fire station where it will serve the
adjacent property but is different from the surrounding zoning.”22 Last, “the Commission must ask
what separates one zone from another.”23
These factors do not favor R-3/R-4 zoning on the Property. As discussed above, the existing AS
designation is low density, intended to “provide for Agricultural Activities and rural residential
Uses on larger tracts of land.24 The requested R-3/R-4 designation would create an abrupt edge,
with no transition, on which dense multi-family housing can be located. Our clients appreciate the
need for housing in the community and accept that urban growth will occur on the Property.
However, this growth should be predictable and gradual, consistent with the Community Plan.
During the January hearing, Commissioner Madgic was appropriately concerned that the
infrastructure needed to support the project is not currently in place. She also believed there is no
predictability or guarantee as to how or when the neighboring project to the east of the Property
will be developed. As a result, and due to the Property’s necessary reliance on the Hidden Valley
and Harper Puckett Road connections, Commissioner Madgic concluded the Property is more tied
into the neighborhood to the west, than to the recently REMU-zoned property to the east.
We agree. The existing character of the surrounding area is not suitable for R-3/R-4 zoning. The
18 Community Plan, p. 76.
19 Community Plan, p. 77.
20 Id.
21 Id.
22 Id.
23 Id.
24 Section 6.01, Zoning Regulation.
12
high density is incompatible with the existing rural residential and agricultural uses. A high-density
development will stress the inadequate county road system and exacerbate existing safety
concerns.
6) The R-3/R-4 Designations Amount to Spot Zoning.
Last, we believe the application is spot zoning that will solely benefit the applicant. The R-3/R-4
designations are completely out of character with the surrounding land uses and will detrimentally
impact our clients.
Spot zoning is “the process of singling out a small parcel of land for a use classification totally
different from that of the surrounding area, for the benefit of the owner of such property and to the
detriment of other owners.”25 While not addressed directly in the BMC or statute, a court will
reverse a zoning approval if it amounts to impermissible spot zoning.
Thus, governing bodies should consider the three-part framework known as the “Little Test” to
determine whether impermissible spot zoning will occur. This framework considers:
1) Whether the requested use is significantly different from the prevailing use in the area;
2) Whether the area in which the requested use is to apply is rather small; and
3) Whether the requested change “resembles special legislation designed to benefit only one
or a few landowners at the expense of the surrounding landowners or general public.”26
Spot zoning typically occurs when all three elements are present, although not all elements are
necessary for spot zoning to exist.27 The second and third elements are analyzed together.28 In
addition, substantial compliance with a growth policy “is especially relevant to the third factor.”29
Here, all three elements are present. The proposed R-3/R-4 zoning is significantly different from
the prevailing uses in the area. This element is thoroughly discussed above. The potential high and
medium-density residential uses are incompatible and out of character with the surrounding low-
density rural residential and agricultural uses.
25 Hartshorne v. City of Whitefish, 2021 MT 116, ¶ 16, 404 Mont. 150, 486 P.3d 693 (quoting State ex rel. Gutkoski
v. Langhor, 160 Mont. 351, 353, 502 P.2d 1144, 1145 (1972)).
26 North 93 Neighbors, Inc. v. Bd. of Co. Commrs., 2006 MT 132, ¶ 65, 332 Mont. 327, 137 P.3d 557 (quoting Little
v. Bd. of Co. Cmmrs., 193 Mont. 334, 346, 631 P.2d 1282, 1289 (1981)).
27 Hartshorne, ¶ 16 (quoting Little, 193 Mont. at 346, 631 P.2d at 1289).
28 Id. (quoting Boland v. City of Great Falls, 275 Mont. 128, 134, 910 P.2d 890, 894 (1996)).
29 Id. (quoting Helena Sand & Gravel, Inc. v. Lewis & Clark Cty. Planning & Zoning Commn., 2012 MT 272, ¶ 31,
367 Mont. 130, 290 P.3d 691).
13
Second, the area is geographically small. The R-3/R-4 designations will only apply to a 40-acre
area, comprised of two 20-acre parcels. The Property is surrounded to the north, west, and south
by rural property located outside of the City.
Third, zoning this small area lends itself to special legislation at the expense of the surrounding
landowners. Only the applicant will benefit from the application’s approval. While the fact that
one entity owning the Property does not automatically create spot zoning, “the numbers of separate
landowners affected by the rezoning directly relates to whether the zoning constitutes special
legislation designed to benefit only one person.”30 Here, there is one landowner benefitted,
surrounded by landowners primarily opposing the development.
The inconsistency with the Community Plan further demonstrates the application amounts to spot
zoning. The R-3/R-4 designations do not substantially comply with the Community Plan’s goals
for gradual, predictable, and compatible urban growth, joined with enhanced connectivity for the
motorized and nonmotorized transportation systems. The application is spot zoning and should be
denied.
Requested Relief
We respectfully request the Commission deny the second amended ZMA. The applicant cannot
satisfy its burden under § 76-2-304, MCA. High and medium-residential density is incompatible
with the Community Plan. The ZMA does not provide sufficiently gradual or predictable transition
in density from the higher density to the east to the much lower density to the west, along our
clients’ properties.
If the applicant or a future landowner develops the Property now, there is no connectivity for those
residing on the Property, resulting in heavy dependence on automobiles and an outdated and
inadequate county road network. The significant increase in traffic will negate public health and
safety and further negate the transportation system for existing users. The R-3/R-4 zoning is
incompatible and out of character with the surrounding uses. Consequently, the ZMA serves only
as special legislation designed to benefit the applicant at the expense of the surrounding
landowners.
Our clients desire most for the Commission to deny the application. However, we realize the
Commission has conditionally granted annexation into the City. Furthermore, our clients do not
oppose growth or development on the Property; they seek predictable and compatible urban
growth.
To provide the Commission with a possible alternative, we request that, should you decline to deny
the application, the Commission exercise its legislative authority and zone the Property at a lower
density. Section 38.260.120.D.2, BMC, states:
30 North 93 Neighbors, ¶ 68 (citing Boland, 275 Mont. at 134, 910 P.2d at 894).
14
If the city commission intends to adopt a zoning designation different than that
applied for, the hearing will be continued for a minimum of one week to enable the
applicant to consider their options and whether to protest the possible action. In the
case of protest against a change to the zoning map by the applicant the same
favorable vote of two-thirds of the present and voting members of the city
commission is required as for any other protested zoning action.
If the Commission does not deny the ZMA outright, we respectfully ask that you indicate your
intent to designate Tract 1 as R-2 (Residential Moderate Density) and Tract 2 as R-4. Or, less
preferably, we request the Commission designate the entire property as R-3 (Residential Medium
Density).
This first option still allows for split zoning among the two tracts comprising the Property. The
Property is particularly suitable for transitional zoning due to this split. The R-4 zoning would be
located along the REMU designation to the east, and the R-2 would be located on the west, nearest
our clients’ properties. The R-2 designation is preferred to the R-3 designation because it more
closely aligns with our clients’ low density residential and agricultural uses.
We believe this proposal is consistent with the Commission’s guidance during the January
meeting. The Commission requested the applicant engage in community input and be sensitive to
the neighborhood and built environment surrounding the Property. Commissioner Cunningham
encouraged the applicant to meet with the neighbors, obtain their input, and incorporate the
neighbors’ feedback with more specific commitments by the applicant.
The Commission should deny the R-3/R-4 zoning or exercise its authority to designate the Property
as tapered R-2 and R-4 zoning (ideally) or as R-3.
Cc: City Attorney (gsullivan@bozeman.net)
Elizabeth Cramblet (ecramblet@bozeman.net)
Clients