HomeMy WebLinkAbout08-05-24 Public Comment - S. Kirchoff - Testimony on DEEP INCENTIVESFrom:Steve Kirchhoff
To:Bozeman Public Comment
Subject:[EXTERNAL]Testimony on DEEP INCENTIVES
Date:Friday, August 2, 2024 1:33:25 PM
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Dear Community Development Board Member:
Thank you for your service to Bozeman and for accepting this public testimony on the “deep
incentives” section of the AHO.
I am writing to encourage you to recommend that the city commission REPEAL the section in
entirety. The reasons for this are many.
First, in its trial run, the Guthrie project, informed citizen testimony revealed many irreparable
flaws in the incentives. The most important of these, I believe, was the inadequacy of the
affordable units on offer by the developer in exchange for forgiveness from standards on
materials, design, parking, open space, height, transportation safety, and neighborhood
compatibility.
The term of the affordability for the Guthrie’s 50-plus studio and single-bedroom apartments
was a mere 30 years, a mercilessly short period of time, less than half a human lifetime. The
shortness of the term favors private equity, not the general welfare. In any affordable housing
“deal” made between a developer and the city, affordability should be permanent, and
standards regarding building design and materials and scale and parking should be followed.
Second, the Guthrie developer also “ginned up” a new definition for one-bedroom
apartments. When affordable units are being proposed, review authorities should be given
standard definitions for household and income and studio and one-bedroom apartment—for
starters—from a single agreed upon source (such as HUD).
Third, parking management continues to be a nagging problem in Bozeman, and the deep
incentives simply create more “monetizable” building area for developers by exempting area
from the burden of storing vehicles. Additionally, tenants of the Guthrie would have unduly
burdened the surrounding streets with cars, pickups, trailers, RVs and the like. Overcrowded
streets become dangerous for pedestrians and bicyclists, and especially elementary
schoolchildren, their parents and guardians attending nearby Whittier, plus teachers and
workers there.
Fourth, as designed, the Guthrie was just another depressing iteration of the now ubiquitous
“podium” or 5-over-1 building type, and it included unfinished exteriors, cheap materials,
poorly located affordable units, and phony interior “common” spaces. Additionally, the
building was vastly over-sized compared to the character of the surrounding neighborhood.
Simply put, the Guthrie was an out of character cash cow offering low quality living spaces and
short-term affordability.
Fifth and finally, the “deep incentives” contradict the spirit and purpose of Chapter 38,
Bozeman’s zoning code. The code is meant to protect the “general welfare” and yet the deep
incentives are designed to “keep developers whole” while providing affordable housing. One
could argue that trading zoning protections for affordability is warranted given the fact the
legislature has stripped Montana cities and towns of other legal mechanisms to require
affordability from private developers. And several commissioners have said that they believe
some sacrifice of zoning protections is justified in the name of affordable housing, a public
good.
Be that as it may, the deep incentives section, as written now, contradicts the intent and
purpose of zoning. This is a problem that could be fixed (but only with great effort!) if the city
decides to carry forward with the incentives. But first the commission must acknowledge that
the deep incentives constitute a major legal liability in the zoning code.
To understand the heart and soul of Chapter 38—and therefore to witness the contradictions
that the deep incentives pose—a person must turn to the opening paragraphs of the chapter.
The initial language of Chapter 38 functions like a key or a legend for a map: it provides
instructions for the proper understanding and use of zoning protections.
In the opening paragraphs (38.100.050) this key language instructs one to consider everything
in the entire chapter—which encompasses hundreds of pages and thousands of restrictions
and permissions—as “minimum requirements adopted for the promotion of the health,
safety and general welfare of the community.” This language states directly that Chapter 38
should be understood to contain minimum requirements that can be exceeded by review
authorities when deliberating on a development proposal.
Thus, the Chapter enables review authorities to use judgment when interpreting its language
—but it also directs that judgment: when they deem it necessary, the Chapter says, review
authorities should use judgment to exceed the minimum restrictions in the Chapter. Here the
chapter says authorities can exceed minimum requirements to better protect the general
welfare. The key language does not instruct reviewers to use their judgment to protect the
private or particular welfare. And yet the deep incentives contradict the spirit of the chapter in
that they are designed precisely to protect private developers’ profits.
Section 38.100.050 also acknowledges that sometimes a code spelled out in one section of the
chapter contradicts code provided in another section. This is important, since the deep
incentives are deeply contradictory of the entire chapter. Well, just exactly how should a
review authority reconcile internal contradictions in the chapter? Once again, the key,
opening language (38.100.050 [A]) tells authorities how to do this. It says, “[W]herever there
is an internal conflict within this chapter, the most restrictive requirements, or those
imposing the higher standards, will govern.”
There is no ignoring the fact that the deep incentives conflict with the spirit of the code as a
whole. And the chapter is meant to be understood as a whole. The early, foundational
language of the chapter says that “when interpreting the meaning of this chapter,
subsections of the chapter must be construed in a manner that will give effect to them all,
as the chapter derives its meaning from the entire body of text taken together.”
Thus a plain reading of the intent behind the “entire body of text”—Chapter 38 as a whole—
shows that it is meant to safeguard health, safety, and general welfare. Authorities are
instructed to construe each word, phrase, and sentence in the chapter in the “most
restrictive” sense; and they are told they may exceed the chapter’s language and impose
“higher standards” when sections fail to uphold the most restrictive standards to protect
general welfare.
However, the “deep incentives,” (Chapter 38.380) which paved the way for the Guthrie
proposal, contradict the “meaning of...the entire body of text.” The deep incentives language
directly contradicts standards and review criteria in other sections that are relevant to reviews
of proposed projects—including the NCOD sections, historic preservation sections, and the
COA sections. In short, all of the other sections of the chapter that have been built up over
scores and scores of years to protect general welfare are contradicted by the deep incentives.
This is a major problem. And it will take a major effort to correct. The simplest measure to
take is to repeal the deep incentives.
It may be true that tough measures are required of the city to provide affordability, but
bruising neighborhoods with crappy buildings is not the answer. What is the answer?
1) I suggest following the advice of Patrick Condon, an interesting man and lifelong
urban planner from Vancouver BC, who spent his life in a quixotic and ultimately failed
mission to increase housing density in order to solve unaffordability. In a recent talk
given in Bozeman, he did allow that “affordable housing overlay” districts have a
fighting chance. Cambridge, MA has used this legal mechanism to good effect. The city
gets affordable housing without sacrificing zoning standards to the extent
contemplated in our own deep incentives program.
2) Impose six-month moratorium (renewable for up to an additional year) on “luxury
development.” Take the sky out of the “sky-high” pricing. Affordability problems are
really private market failures. We cannot change the market but we can regulate the
top-end out of it, at least gaining a breathing period in which to plan better strategies.
It would be a good idea to make Bozeman an unattractive place for investors in
housing.
3) Review the impact of the recently adopted restriction of short-term rentals to find
out if the restriction has exerted any downward pressure on rents and housing price
and upward pressure on supply. If it has, maybe the city should restrict more
categories or dramatically increase business license fees—do whatever the city can do,
to take the attractiveness out of easy money in housing that is not for ordinary, local
people.
4) Review the impact fee program already in place and determine whether we are
“leaving money on the table” or not. When was the last audit of the program? The
program is supposed to offset costs to existing residents: is it?
5) Review the cash-in-lieu for water rights program. Why is the city expanding as
though water is infinite? John Meyer had a clever idea about linking water availability
to affordability in housing.
6) Finally, consider a moratorium on ALL proposals for at least six months (again,
renewable) in order to plan for the future. The Chronicle (Aug 2) reported that some
movers and shakers in MT Chamber of Commerce are trying to bring $10 billion in tech
investment and 10,000 tech jobs to the Rocky Mountain Front—an area stretching
from Bozeman to Kalispell—in the next decade. So? How are we going to face that
challenge?
7) Restore the name Planning Board to what is now the Community Development
Board.
These are a few notions, included so you know I am not sending “just another critique”
without any creative solutions on offer.
Thank you for your attention to this admittedly LONG testimony. And good luck! You are doing
hard work in complicated times.
Steve Kirchhoff