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HomeMy WebLinkAbout000 2025.01.30 Final Guthrie AppealKIRSA SHELKEY January 30, 2025 ALISON P. GARAB BREEANN M. JOHNSON WESTERN ROOTS LAW PLLC PO Box 7004 Bozeman, Montana 59771 KAS: 406.599.2087 Shelkey@WestRootsLaw.com APG: 406.579.9584 Garab@WestRootsLaw.com BMJ: 406.600.9389 Johnson@WestRootsLaw.com Counsel for Appellant Bozeman Home Advocacy Group, LLC 421 W. Beall St. Bozeman, MT 59715 Appellant RE: Appeal of Administrative Approval for Application 24493 Dear City Commissioners, Undersigned counsel, on behalf of Appellant Bozeman Home Advocacy Group, LLC, hereby respectfully submits this appeal of the January 15, 2025 administrative approval of application 24493, pursuant to the procedures set forth in Sec. 38.250.010 through 38.250.040. Pursuant to the process set forth in Sec. 38.250.010 through 38.250.040, the appellant, Bozeman Home Advocacy Group, LLC, appeals the Community Development Director’s (Development Director) January 15, 2025 final development approval of Application No. 24493, including approval of: the Site Plan for the Guthrie; the Commercial Certificate of Appropriateness (CCOA) to build the Guthrie in the neighborhood-character-overlay district (NCOD); and (3) the demolition application (DEM) to demolish an existing structure in the NCOD. BACKGROUND Location of the Guthrie and Applicable Zoning Districts The legal land description of the property at issue in this appeal is Karp Addition, S12, T02 S, R05 E, Block 6, Lot 1-3, Acres .843, Plat E-3-A, City of Bozeman, Gallatin County, Montana; the property’s address is 321 N. 5th Avenue, Bozeman, MT, 59715. 2 Two applicable zoning districts apply to the property: (1) the project site is zoned R-5 residential; (2) and is within the NCOD zoning district1. The project is outside of the Midtown Urban Renewal District (MURD). The project site exists in a residentially-zoned neighborhood within the NCOD. Surrounding structures within the NCOD include: to the north, two one-story single-family residences; to the northeast, one two-story single-family residence; to the east, one one-story church with a steeple and one one-story single-family residence; and to the south, one two-story four-plex. The one-story Sapphire Motel is west of the project site and is zoned B2-M and is within the MURD. The existing structure on the project site most recently operated as an assisted living facility—Bridger Rehabilitation and Care Center—until its closure, and subsequent purchase by HomeBase in September 2022. At this time, the structure was in good condition. The building was constructed in 1959 as the Florence Convalescent Home and is a contributing historic structure in the NCOD. The Project The approved application proposes to demolish the existing building within the NCOD and to construct a new four-floor, 54,300 square-foot, 91 residential-unit multi-household building, called the Guthrie, in a residentially-zoned neighborhood. The application utilizes the deep incentives of Bozeman’s novel affordable housing ordinance (AHO). The approved Guthrie will provide 50% or more of the gross floor area—46 affordable housing units (10 studio units, 29 one-bedroom units, and 7 two-bedroom units)— priced at no greater than 80% of the Area Median Income (AMI) for Bozeman, Montana. Based on current local AMI, maximum monthly rental prices at the Guthrie per residential unit, which range in size from 367 to 735 feet, are as follows: Studio dwelling: $1,526.25 per month (AMI for a one-person household); One bedroom dwelling: $1,745.00 per month (AMI for a two-person household); Two-bedroom dwelling: $1,962.50 per month (AMI for a three-person household). Procedural History 1 Undersigned counsel recognizes the redundancy in stating NCOD zoning district, but the redundancy is somewhat helpful, in that it reminds the reader that the NCOD is indeed a zoning district. 3 In early 2024, HomeBase Partners2 filed the first application (23354) proposing development of the, then, five-story, 111-unit Guthrie on the project site. The period for public comment was from March 13, 2024, to April 8, 2024. On April 16, 2024, the Bozeman City Commission (Commission) reclaimed review authority over application 23354, triggering an additional period for public comment. The Commission received significant community response—the overwhelming majority of which opposed the project. On July 9, 2024, at a more than six-hour hearing, the Commission denied application 23354, triggering a two-year stay on demolition of the existing building. On August 8, 2024, HomeBase filed a complaint in District Court challenging the Commission’s denial of application 23354. The Staff Report indicates that on July 25, 2024, and August 13, 2024, Andy Holloran met with “City officials and neighborhood representatives” “to discuss alternatives and concerns from midtown neighbors.” The Staff Report mischaracterizes this interaction for the purpose of evidencing “that the owner demonstrated he has actively and in good faith sought alternatives to demolition.” In email correspondence attached as Exhibit 001, the City Manager assured Emily Talago that her attendance was not as a neighborhood representative and would not contribute to City Staff box-checking for the purpose of lifting the two-year stay on demolition. On September 9, 2024, HomeBase re-submitted an application (24493) proposing development of the, now, four-story, 91-unit Guthrie on the project site, including a Site Plan, CCOA, and DEM. HomeBase worked with City Staff, revising and resubmitting the application five times. City Staff determined the project was adequate on December 4, 2024. The law in place on December 4, 2024, governs project approval or denial. The period for public comment was from December 6, 2024, to December 31, 2024. The City has the authority to set the notice period. This period notably includes the holidays— Christmas Break for families with school-age children, Christmas Eve, Christmas, and New Year’s Eve. There was no hearing. The Commission declined to reclaim review authority over the second application. Still, the City received significant community response, in writing, opposing the project. 2 The owner of the property is Fifth and Villard Apartments, LLC, and the developer and applicant is HomeBase Partners, owned and founded by Andy Holloran. In this appeal, appellant refers to the applicant interchangeably as HomeBase, the Developer, and Andy Holloran. 4 On January 15, 2025, the Development Director approved with conditions the proposed Site Plan for the Guthrie, the CCOA, and the DEM. The Director found the Site Plan complied with all applicable regulations, including with the criteria set forth in Sec. 38.200.010. The City’s January 15, 2025 Staff Report indicates the Director’s findings are based on evidence found in the “submittal materials, advisory body review, public testimony, and [Staff R]eport.” Bozeman Home Advocacy Group, LLC, presently appeals. Applicable Law The law governing municipal development is complex. The appellant offers the following framework of applicable law as a courtesy to help guide the Commission’s review of the Development Director’s decision to approve the application for the Guthrie, including: (1) Site Plan approval; (2) CCOA approval to build the Guthrie in the NCOD; and (3) DEM approval to demolish a contributing historic structure in the NCOD. Specific provisions of the UDC govern each approval action. Broadly, the City, pursuant to statute, has zoning authority, and the statutory duty to promote “health, safety, morals, or the general welfare of the community.” See § 76-2-301, MCA. Empowered and pursuant to this duty, the City adopted the UDC—the intent of which is to promote public health, safety and general welfare. See Sec. 38.100.040. Pursuant to the UDC, the Commission has review authority over development applications: to prevent demonstrable adverse impacts of the development upon public safety, health or general welfare, or to provide for its mitigation; to protect public investments in roads, drainage facilities, sewage facilities, water facilities, and other facilities; to conserve the value of adjoining buildings and/or property; to protect the character of the city; to protect the right of use of property; advance the purposes and standards of this chapter and the adopted growth policy; and to ensure that the applicable regulations of the city are upheld. The Commission has delegated authority to approve, condition, or deny applications for non-subdivision municipal development to the Development Director. See Sec. 200.010(B). Non-subdivision development projects within the City, like the Guthrie, are subject to site plan review, and must meet the criteria set forth in Sec. 38.230.100 to be approved. To protect public health, safety, and welfare, the site plan review criteria require conformance with other applicable articles within the UDC. For example, Sec. 38.230.100 requires conformance with zoning provisions, including specific standards for development within the NCOD set forth in Sec. 38.340.010 through 5 38.340.130. If, like here, development proposes construction of a new structure within the NCOD, the review authority must certify the appropriateness of the new building within the NCOD neighborhood and approve a CCOA in conjunction with site plan approval. See Sec. 38.340.040 through 38.340.060. Proposed demolition of a contributing historic building in the NCOD requires approval. See Sec. 38.340.100. Additional site plan review criteria at issue in this appeal include: conformance with traffic standards, conformance with community-design standards (which require compatibility with existing neighborhoods and functional design), and conformance with open space objectives. It is the appellant’s ultimate position that the application for the four-story, 91-unit Guthrie does not meet the criteria for site plan approval; does not meet the criteria to be certified appropriate for construction within the NCOD; and does not meet the criteria for demolition of the contributing historic structure at the project site. The appellant presently asks the Commission to find that the Development Director erred in approving the application, site plan, CCOA, and DEM, and to overturn those approval decisions. At minimum, the two-year stay on demolition should remain in place until HomeBase makes a good faith effort to explore alternatives to demolition. STANDING The appellant, Bozeman Home Advocacy Group, LLC, is an aggrieved person as defined by Sec. 38.700.020, BMC (an aggrieved person “has a specific, personal and legal interest in the final decision of an agency, board or commission, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal”).The individual members of the Bozeman Home Advocacy Group, LLC, are neighboring property owners to the Guthrie. As such, each are aggrieved by the City’s approval. The individual members created the entity, Bozeman Home Advocacy Group, LLC, for the purpose of representing their personal and legal interests on appeal of the City’s decision to approve the Guthrie. The following individual members of the Bozeman Home Advocacy Group, LLC, are aggrieved in the following ways. “[S]tanding of any one of [the members of the Bozeman Home Advocacy Group, LLC] permit the [appeal] to go forward.” See Aspen Trails Ranch, LLC v. Simmons, 2010 MT 79, ¶ 45, 230 P.3d 808, 356 Mont. 41. Scott Boyd has owned his home on Beall Street since 2011 and lives across the street— within 200 ft—from the proposed development. As such, Bozeman’s Uniform Development Code 6 (UDC)—Ch. 38, of Bozeman’s Municipal Code (BMC)—implicitly recognizes the impact the Guthrie’s development will have on Boyd’s use and enjoyment of his property. The UDC requires the Developer to individually notice Boyd of development activity by mail. Boyd is a committed community member dedicated to participating in and addressing Bozeman’s affordability issues while protecting the livability and historic aspects of Bozeman’s historic neighborhoods, including within the NCOD. Boyd has contributed over a dozen comments on the AHO, UDC update effort, and the Guthrie application, as well as participated in workshops for the AHO and UDC rewrite. He has likewise volunteered with Meals on Wheels, Bozeman Bike Kitchen, Mobile Loaves and Fishes, and the Boy Scouts, and served on the Board of the Bozeman Art Museum. Boyd feels that the City of Bozeman (City) hastily adopted a well-intentioned, but poorly considered AHO, with limited public input in response to the extraordinary shocks brought to Bozeman’s housing market by Covid-19 and other factors. Boyd holds that the City has an affordability issue, but that the Guthrie will not address it; the Guthrie is deficient in meeting community objectives in providing affordable housing, while at the same time causing permanent, irreversible harm to him personally, his neighborhood within the NCOD, and the community at large. Boyd asserts that the Guthrie will impose: unreasonable congestion; traffic and safety- related circulation issues due to sub-requirement infrastructure; increased fire and safety impacts for surrounding properties due to the reduced intersection capacities; diminished access to adequate air and light; intractable change to the character of the neighborhood due to the massive size and scale of the building; and undue stress to all surrounding neighbors as a result. Boyd describes the Developer’s application as misrepresentative and incomplete. Christy Stillwell owns real property neighboring the Guthrie and has lived within the NCOD neighborhood that will be impacted by the Guthrie for twenty-five years. Stillwell is deeply engaged in Bozeman’s affordability issue: she has submitted public comment protesting the Guthrie, as well as public comment on the AHO revisions; she regularly attends AHO and UDC revision meetings; she is a member of the Midtown Neighborhood Association and the Better Bozeman Coalition. Stillwell recognizes the need for affordable housing and adamantly believes the Guthrie will not provide affordable housing; 80% of AMI is not an “affordable” way to calculate rent for Bozeman’s “missing middle”, particularly given the Guthrie will charge 80% of AMI for two people’s incomes—$1,745.00—for a one-bedroom unit. Stillwell is not dismayed by 7 the size of the one-bedroom unit, but by the cost for the size of the unit, and that the expectation baked into the affordability calculation is that two people will occupy that small, expensive space. As such, Bozeman’s AHO is prejudicial against the single working missing middle it envisions to assist. Stillwell believes the City’s approval of the Guthrie signals it values utilizing the flawed AHO at the expense of historic neighborhood preservation and public health, safety and well-being of neighboring communities. Stillwell is upset that these values are not being better balanced. Violations of the NCOD guidelines are a problem: the Guthrie will be eight times bigger by volume than the largest building in the neighborhood—the neighboring church. The NCOD should ensure new construction is compatible with existing neighborhoods in relation to building mass, neighborhood identity, and character. Stillwell believes the mass and scale of this design does none of those things AND it is not affordable. Stillwell is also concerned about traffic. According to the traffic impact study conducted for this project, the existing intersections already operate at substandard levels. The traffic load will increase and drivers wanting to turn left onto N. 7th will look for a signalized intersection. More drivers will use N. 5th Ave. towards Peach, an already vulnerable intersection, due to the presence of Whittier Elementary School. If “affordability” is calculated based on two-person occupancy of one-bedroom units, are the trips in the traffic impact study based on this two-person occupancy and the reality that renters of these units will each own cars? For Stillwell, the Staff Report did not adequately answer these safety-related questions and the duty to protect public health and safety sits with this Commission. Stillwell has fears about her own property value, situated so close to an exploitative building that will diminish sunlight and safety in the neighborhood, while increasing parking stress, traffic, artificial light and noise. In addition, Stillwell believes residents of the neighborhood will find the years of demolition and construction difficult to live with in an area already besieged by road closures due to development. Emily Talago owns real property one block north of the proposed Guthrie. Talago is personally vested in the safety and well-being of her neighbors and neighborhoood. She has: represented the Midtown Neighborhood Association on the Bozeman InterNeighborhood Council (INC); served on the Midtown Urban Renewal Board; volunteered hundreds of hours researching and commenting on policy affecting Bozeman’s neighborhoods. 8 Like others residing within the NCOD, Talago has improved her property with the expectation that the City will evaluate development proposals using design criteria specific to residential character areas within the NCOD. Based on the specific precedent of limiting structures to two stories on residentially zoned parcels within the NCOD, Talago, a certified plant professional, has intentionally located food-forest gardens to maximize light exposure, air circulation, aesthetic appeal, and social interaction. She has spent over a decade improving soil fertility and establishing hundreds of new plants. She produces over 300 pounds of fresh fruits, vegetables, herbs, and flowers every year to sustain herself and share with her community. Talago is concerned that failure to enforce NCOD design regulations—no longer enforcing height restrictions in the NCOD—will remove the predictability that protects her investment. Talago understands that design guidelines and policies are subject to change and may result in her needing to eventually negotiate a solar easement with adjacent parcels. However, Talago feels these changes need to occur in a fundamentally fair way, by established public process, where she has the ability to participate and comment. STANDARD OF REVIEW The UDC is not particularly clear which standard applies. Section 38.250.010(D)(5) suggests the Commission should review the Staff Report and Development Director’s decision to approve the Guthrie for clear error. See Sec. 38.250.010(D)(5)(the City Commission “must” “hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official”). The process to appeal the Commission’s decision to district court is likewise unclear. Borrowing the standard of review from the Montana Subdivision and Platting Act, a reviewing court will set aside unlawful and arbitrary and capricious decision-making by the governing body. See § 76-3-625, MCA. Constitutional issues will be reviewed de novo. The Commission should: in its quasi-judicial role, review the Development Director’s decision-making pursuant to this standard; and, in its administrative role, approve, deny, or amend the approved Guthrie application with this standard of review in mind. ARGUMENT I. THE APPELLANT IS CONSTITUTIONALLY ENTITLED TO PUBLIC HEARING. The members of the Bozeman Home Advocacy Group, LLC, have been deprived of their constitutionally protected right to be heard. The process set forth in the UDC—delegation of the 9 final approval for the Guthrie to the Community Development Director (Development Director)— violates appellant’s procedural due process rights; the process set forth does not include a hearing before the final development decision is made. Procedural due process ensures that government actions are fundamentally fair and follow a reasonable process. See Art. II, Sec. 17, Mont. Const. (the Montana Constitution provides that “[n]o person shall be deprived of life, liberty, or property without due process of law”). Procedural “[d]ue process requires both notice of a proposed action and the opportunity to be heard.” Montana Media, Inc. v. Flathead County, 2003 MT 23, ¶ 65, 63 P.3d 1129, 314 Mont. 121(emphasis added). The UDC purports to inherently protect procedural due process through the processes set forth therein. See Sec. 38.100.040 (an intent of the UDC is “to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana Constitutions,” including, presumably, the right to notice and the opportunity to be heard). However, as the UDC is currently written, “aggrieved parties” with qualifying property interests are deprived of their constitutional right to a public hearing unless: (a) they pay to appeal what would have been the final approval of the development action but for appeal; or (b) the Commission reclaims authority over the final approval of a development action triggering an additional hearing. See Sec. 38.200.010 (2); Sec. 38.250.030. Sec. 38.200.010(A), (B), indicates the Commission delegated its review authority over site plans for non-subdivision development proposals to the Development Director. Site plan review by the Development Director, pursuant to Sec. 38.220.420, triggers a notice requirement, but no opportunity for aggrieved parties to be heard. On September 9, 2024, HomeBase filed the application for the presently approved Guthrie project with the City. On December 6, 2024, property owners within 200 feet of the proposed development were given notice by mail of the proposed development. The period for written public comment was from December 6, 2024, to December 31, 2024, over the time-committed holidays. Still, the public provided 116 written comments opposing development of the Guthrie. While the public attended regularly scheduled City Commission meetings and asked the Commission to reclaim review authority over this Guthrie project, the Commission was silent 10 on the issue. On January 15, 2025, the Development Director approved the project. To date, no public hearing has been held. The procedures in place do not provide adequate procedural due process protections. See Montana Media, Inc., ¶ 65. The Commission should perhaps consider: amending the UDC to include a required hearing where the City delegates review authority to the Development Director; or, reclaiming authority as a matter of practice whenever it appears deprivation of procedural due process may occur. In any instance, the Development Director rendered her final decision, the Commission did not reclaim its review authority, and the appellant was deprived of their constitutional right to be heard. A. REQUIRING THE APPELLANT TO PAY $ 2,760.00 TO EXERCISE A CONSTITUTIONALLY PROTECTED RIGHT IS UNCONSTITUTIONAL AND UNLAWFUL. The appeal fee is an exorbitant sum—$ 2,760.00. The appeal process is complex and the timeline for appeal is short—just ten working days. Bozeman Home Advocacy Group, LLC, hired undersigned counsel to appeal the Development Director’s decision. It is unconstitutional for the City to make an aggrieved party pay thousands of dollars to exercise their constitutional right to be heard. The required hearing must occur before the review authority decision makes a final development decision to protect procedural due process. The required hearing on appeal cannot substitute as appellant’s opportunity to be heard, which should have occurred prior to January 15, 2025. Furthermore, Bozeman Home Advocacy Group, LLC, must here appeal to exhaust its administrative remedies. Failure to exhaust administrative remedies has led courts to find appeals of administrative decisions unripe. See Bitterroot River Protection Assoc., INC., v. Bitterroot Conservation Dist., 2002 MT 66, ¶ 22, 45 P.3d 24, 309 Mont. 207. The constitutional ramifications of the City’s fee are two-fold: appellant is deprived of: (1) the right to be heard; and (2) potentially of the right to appeal to court, unless it pays the City $2,760.00. This amount of money is not to cover administrative fees. The fee is a barrier preventing parties from having their grievances heard on appeal in front of the Commission and court. To remedy this error, Bozeman Home Advocacy Group asks the Commission to waive the required fee. Likewise, the UDC does not indicate how the appellant may appeal the City’s final development approval for the Guthrie. Bozeman Home Advocacy Group, LLC, therefore seeks clarity from the City on the process to appeal. 11 B. THE COMMISSION’S FAILURE TO RECLAIM AUTHORITY OVER FINAL APPROVAL OF THE GUTHRIE WAS AN UNCONSTITUTIONAL ABUSE OF DISCRETION, WHICH DEPRIVED THE APPELLANT OF PROCEDURAL DUE PROCESS. Had the Commission reclaimed authority over the final approval decision for the Guthrie, held a hearing where aggrieved parties had the opportunity to be heard, and shared its findings of fact and conclusions of law in a transparent manner, the Bozeman Home Advocacy Group, LLC, might not have felt the need to appeal. This appeal is about more than the appellant not getting what it wants—denial of the Guthrie—or HomeBase getting approval. This appeal asks the Commission to make its decisions in a fundamentally fair way, based on procedures that protect due process for the applicant, the public, and those with property interests in the NCOD that will be impacted by the Guthrie’s approval. When the Commission reclaimed authority over the first Guthrie application, Commission members cited the following reasons:  The Guthrie application was the first to utilize the deep incentives set forth in the relatively new AHO. The final decision would set precedent.  While the Commission delegated review authority to the Development Director, the duty to protect public health, safety, and general welfare remains with the Commission.  Reclamation of authority did not reflect that City Staff was not professional or competent. Instead, reclamation added a layer of review necessary to protect public health, safety, and general welfare, because this project application was novel, large-scale, and received extensive public comment detailing potential harm.  Public comment exposed flaws in the application’s compliance with applicable code. Additional public comment and a hearing would enable additional scrutiny and better decision-making. Indeed, had the City not reclaimed authority and received additional public comment, the City may have approved an application to utilize deep incentives that did not comply with the AHO. AMI was based on the calculation for one-bedroom units, when those units were actually studios. This misrepresentation would have resulted in HomeBase overcharging rent for its “affordable” one-bedroom units, while benefitting from the deep incentives. Likewise, public comment corrected an error in the application’s open space calculation. HomeBase improperly included an office to meet the open space requirement. These flaws were technical and Commissioners noted that City staff and the Commission benefit from the public’s detailed review.  The Commission wanted the decision, particularly given the number of public comments and the size and scale of the proposed project, to be transparent. 12 Pursuant to its reclaimed review authority, on July 9, 2024, the Commission, by vote of 3- 23, denied the first Guthrie application for noncompliance with the criteria set forth in Sec. 38.230.100, including:4 The mass and size of the five-story proposed Guthrie was not compatible with the residential neighborhood in which it sits, especially considering the NCOD; the Bozeman Historic Preservation Advisory Board opposed demolition and construction of the Guthrie; Commissioners had a duty to protect the historic character of Bozeman’s neighborhoods, which required balancing the perspectives of neighbors, developers, and “the missing middle”; citing snow removal, circulation issues, future ADA compliance, and distance to parkland, one Commissioner found the Site Plan was crammed to the point of dysfunction; another found that the traffic impact study did not meet the level of service required to grant the certificate of appropriateness; excepting the deep incentives utilized, Commissioners noted the project did not receive the level of scrutiny from City staff that other projects within the NCOD had received; the project did not comply with the AHO; AMI calculations were incorrect and misleading as they were based on one-bedroom dwellings, and not studios. The approved Guthrie differs from the denied Guthrie in that the building is four stories and 91 units versus five stories and 111 units, and that the application added open space, reduced bicycle parking, and corrected its AMI calculation. Excepting these differences, and others, key features of the Guthrie that Commissioners found noncompliant with the review criteria in Sec. 38.230.100 are still present. And yet, the Commission declined: to reclaim review authority over the new application for the Guthrie; to hold a hearing; or make any findings or conclusions regarding their decline to reclaim review authority or the new Guthrie. The City’s reasoning, bulleted above, applies to the new Guthrie project the same as it applied to the denied Guthrie, and perhaps more so, given the Commission’s denial. For instance: HomeBase’s use of the AHO’s deep incentives was still novel; the Commission does not delegate its duty to protect public health, safety, and welfare; public comment teased out technical error leading to denial of the original Guthrie; aggrieved neighbors otherwise did have the opportunity to be heard; and, the Commission had previously expressed its commitment to making 3 Appellants agree with HomeBase that the Commission should have issued a written decision memorializing its findings of fact and conclusions of law for denial. 4 The Commissioners on both sides of the vote supported their findings and conclusions by pinpointing specific provisions of the UDC. In its complaint, HomeBase points fingers, pits City Staff against the Commission, and “cherry picks” and characterizes specific Commissioner’s remarks as unsupported by law. The tone of the complaint is inappropriate, unsupported by citation to case law, and employed as an effective scare tactic. The Commissioners voting to deny the Guthrie did not cite only the growth policy as reasoning for denial. Growth policy objectives are baked into the UDC, and compliance with the growth policy is a criterion for review. The Commission sufficiently supported their findings and conclusions by pin-pointing Site Plan review criteria, provisions of the NCOD, AHO, and applicable UDC, which, when complied with, preserve the objectives of the growth policy. 13 transparent decisions. Instead, the Commission declined to reclaim review authority, no hearing was held, and the period for written public comment occurred over the holidays. The Commission should provide some clarity on its reversal of opinion.5 It should be noted that on August 8, 2024, HomeBase filed a complaint in the Gallatin County District Court challenging the City’s denial. Without transparency, the glaring difference in the Commission’s treatment of the Guthrie applications is that the Commission now knows HomeBase will challenge denial of the application in court. The appellant and undersigned counsel are saddened by this notion. In any case, the Commission’s failure to reclaim review authority was arbitrary and capricious, was an abuse of its discretion, and unconstitutionally barred the appellant from procedural due process and the right to be heard before the Development Director’s final development approval of the Guthrie. To remedy this failure, the appellant here asks the Commission for transparent decision- making during appeal, and to overturn, or to amend the Development Director’s approval, such that the application complies with the review criteria set forth in Sec. 38.230.100. See Sec. 38.250.030(J)(“[a]lternative actions available to the appellate body. At the conclusion of the consideration of the appeal, the review authority may uphold, amend, or overturn the administrative project decision”)(emphasis added). II: THE DEVELOPMENT DIRECTOR’S DECISION AND THE FINDINGS IN THE STAFF REPORT REFLECT CLEAR ERROR AND UNLAWFUL AND ARBITRARY AND CAPRICIOUS DECISION-MAKING. The approved Guthrie does not comply with the criteria set forth in Sec. 38.230.100. The issue before the Commission here is the same as it was on July 9, 2024: Whether the approved Guthrie complies with the criteria set forth in Sec. 38.230.100. If the Commission finds that the approved Guthrie does not comply with the criteria set forth in Sec. 38.230.100, then the Staff Report contains clear error and the Development Director’s decision should be overturned because it is unlawful and arbitrary and capricious. The purpose for conducting Site Plan review, according to the Staff Report, is “to consider all relevant evidence relating to public health, safety, welfare, and the other purposes of Ch. 38; to 5 Citation about reversal being evidence of abuse of discretion. See MEIC v. Mont. Dept. of Env. Qual. 2019 MT 213, ¶ 26, 451 P.3d 493, 397 Mont. 161 (administrative “actions must also be consistent; an internally inconsistent analysis signals arbitrary and capricious action”). 14 evaluate the proposal against the criteria of Sec. 38.230.100, and the standards of Ch. 38; and to determine whether the application should be approved, conditionally approved, or denied.” Despite clear guidance in the growth policy, the Development Director’s decision and the findings in the Staff Report betray that City Staff prioritizes utilization of the deep incentives in the new and much-needed AHO over well-established protections for Bozeman’s historic neighborhoods and public health, safety, and welfare protections for Bozeman’s residents. See Bozeman Community Plan 2020, at 73 (“individual goals or objectives are not maximized to the exclusion of other priorities and evaluation occurs against the whole of the growth policy”). Bozeman’s desperate need for affordable housing is not lost on the appellant, members of which have adult children living at home because they cannot afford rent and have volunteered substantial time and effort in the City’s processes to draft and amend the AHO. However, approval of applications utilizing the AHO at all cost is not what the appellant envisioned. In fact, the UDC and the growth policy protect against such single-mindedness. See 38.100.050(C)(the subsections of the UDC “must be construed in a manner that will give effect to them all”)(the UDC “derives its meaning from the entire body of text taken together”)(emphasis added). As such, the criteria for site plan review, the deep incentives in the AHO, the zoning standards applicable to the property (R-5 residential standards and the NCOD standards and guidelines), the requirements to receive a Certificate of Appropriateness to develop within the NCOD, and the procedures for demolition within the NCOD, must here be employed to give effect to them all.6 See Secs. 38.230.100(A)(1-12) (site plan review); 38.380 (AHO); 38.310 (permitted uses—R-5 residential); 38.340.010 through 38.340.130 (NCOD standards); 38.110.010(B) (NCOD guidelines); 38.340.040 through 38.340.060 (requirements to receive a Certificate of Appropriateness to develop within the NCOD); 38.340.080 (procedures for demolition within the NCOD). Pursuant to Sec. 38.230.100, the Development Director must consider whether the application conforms with criteria set forth in Sec. 38.230.100(A)(1-12), which requires compliance with the provisions, cited above, that govern approval of the Guthrie application. 6 Utilization of the deep incentives of the AHO does not mean the triggered provisions of the UDC do not apply. Such an interpretation of the AHO is unlawful and arbitrary and capricious. Likewise, the Montana Legislature’s enactment of § 76-2-302(5), MCA, does not, in effect, mean that site plan review criteria and the NCOD standards and guidelines are non-compulsory. These provisions have not been repealed and contain the specificity requisite to overcome a facial challenge under § 76-2-302(5), MCA. The Commission’s reliance on the site plan review criteria and the NCOD standards and guidelines was proper and well-supported in its denial of the original Guthrie application. 15 Conformance with site plan criteria is strict, as compared with the more generalized demonstration of compliance allowed for future phases of a master plan. While the Staff Report indicates the application complies with each criterion, the purpose of this appeal is to demonstrate the errors existing in the Staff Report, such that the Commission can correct demonstrated error by amending or overturning administrative approval. A. THE NCOD STANDARDS AND GUIDELINES ARE COMPULSORY; THE APPLICATION DOES NOT MEET SEVERAL CRITERIA SET FORTH IN SEC. 38.230.100, BECAUSE THE GUTHRIE DOES NOT COMPLY WITH THE NCOD STANDARDS OR GUIDELINES. A conclusory statement like, “[t]he project is in conformance to the NCOD,” appears seven times in the Staff Report without analysis. See pages 22, 23, 31, 32, 33, and 35.7 On page 32, the Staff Report explains its erroneous conclusion that “the NCOD guidelines are not compulsory”— because they are not compulsory, the project is in conformance. This conclusion is incorrect. The NCOD standards and the Bozeman NCOD Guidelines8 are compulsory; the project is not in conformance.9 Several subsections within the UDC affirm that the standards governing development within the NCOD, including the Bozeman NCOD Guidelines, are binding. Section 38.110.010(B) affirmatively states that the Bozeman NCOD Guidelines “are hereby adopted by reference as a part of or in support of this chapter.” Sections 38.230.100(A)(5)(c), and 38.340.010 through 38.340.130, specifically require compliance with NCOD standards, including with the Bozeman NCOD Guidelines adopted by reference in Sec. 38.110.010(B). Section 38.340.050(D) states: “When reviewing a contemporary, non-period, or innovative design for new structures or additions to existing structures, the review authority must be guided by the design guidelines for the neighborhood conservation overlay district to determine whether the proposal is compatible with any existing or surrounding structures” (emphasis added). The operative word is “must.” Bozeman’s municipal code specifically defines “must”: “[t]he terms ‘must’ and ‘shall’ are each mandatory. See Sec. 1.01.030(A)(11)(as 7 A copy of the Staff Report with these instances highlighted in pink is attached as Exhibit 002. 8 For clarity, appellant refers to Secs. 38.340.010 through 38.340.130 as NCOD standards and refers to the Bozeman Guidelines for Historic Preservation and Neighborhood Overlay District as Bozeman NCOD Guidelines. Appellant attaches the Bozeman NCOD Guidelines, including highlighting of applicable provisions, for the Commission’s convenience as Exhibit 003. 9 Attached are NCOD consultant reports as Exhibits 004 and 005 evidencing the City’s continued commitment to applying Bozeman NCOD Guidelines. 16 compared with “may” in Sec. 1.01.030(A)(8), which “is permissive”). The code does not use the word “may.” The Staff Report misinterprets this provision of code, misunderstanding that “be guided” are the operative words in “must be guided.” The Staff Report is mistaken. See Staff Report, at 32, 33 (“Section 38.340.050.D states that the review authority must be guided by the [Bozeman NCOD Guidelines.] The guidelines were created to provide guidance . . .”)(“the NCOD Guidelines are not compulsory”). The legal conclusion that the Bozeman NCOD Guidelines are not compulsory is incorrect. Moreover, this conclusion represents a major reversal in City policy, signaling arbitrary and capricious action. See MEIC, ¶ 26 (administrative “actions must also be consistent; an internally inconsistent analysis signals arbitrary and capricious action”). Such a reversal appears for the benefit of the developer and at the direct expense of those who own property in the NCOD. The Staff Report and Development Director relied on this incorrect conclusion to analyze the criteria set forth in Sec. 38.230.100. As such, the Staff Report’s analysis regarding compliance with the NCOD standards and Bozeman NCOD Guidelines reflects clear error, such that the Development Director’s approval of the Guthrie was unlawful and arbitrary and capricious. Because the Bozeman NCOD standards and guidelines are compulsory, the Commission should overturn the Development Director’s Decision for the following reasons: 1. THE APPLICATION DOES NOT MEET THE CRITERION SET FORTH IN SEC. 38.230.100(A)(5)(c). The Development Director did not adequately consider whether the application conforms with NCOD standards and the Bozeman NCOD guidelines. See Sec. 38.230.100(A)(5)(c). Alone, this fact merits the Commission’s reversal. The Staff Report erroneously concludes that compliance with the zoning provisions of Article 3 of the UDC does not require compliance with the NCOD standards or Bozeman NCOD guidelines governing development in the NCOD zoning district. Pursuant to Sec. 38.230.100(A)(5), the Site Plan must be in conformance with the zoning provisions set forth in Article 3 of the UDC. Applicable zoning provisions for the property include permitted uses pursuant to 38.310, and the applicable overlay district standards set forth in 38.340. The property at issue is in an R-5 residential zoning district and exists within an overlay zoning district—the NCOD. As such, the standards and guidelines governing development within the NCOD zoning district apply in addition to the standards governing the R-5 zoning district. 17 The Staff Report analyzes only compliance with the R-5 zoning district. The R-5 zoning district permits four stories up to a 50-foot height, and the height of the approved four-story Guthrie is 47 feet. Therefore, the Staff Report indicates the application conforms with the zoning provisions set forth in Article 3 of the UDC. This analysis is incomplete and should here be corrected by the Commission or overturned. 2. THE FORM, MASS, AND SCALE OF THE APPROVED GUTHRIE VIOLATES COMPULSORY NCOD STANDARDS AND GUIDELINES; CERTIFYING THE GUTHRIE AS APPROPRIATE FOR DEVELOPMENT IN THE NCOD IS UNLAWFUL AND ARBITRARY AND CAPRICIOUS. Proper analysis per Sec. 38.230.100(A)(5) triggers consideration of Section 38.340.050(D). HomeBase will alter an existing structure within the NCOD. Therefore, the NCOD standards require a Certificate of Appropriateness “before any and all alterations . . . are undertaken upon any structure in the” NCOD. Sec. 38.340.040(A). For new structures, like the Guthrie, to be certified by the City as appropriate within the NCOD, their design elements, including height and scale, must be compatible with surrounding structures. See Sec. 35.340.050(B)(1), (5), (C). “To determine whether the [Guthrie] is compatible” with the existing two-story Bozeman Health and Rehabilitation Center or the surrounding neighborhood,” the Development Director “must be guided by” the Bozeman NCOD Guidelines. See Sec. 38.340.050(D); Exhibit 003. The Staff Report mischaracterizes the existing structure and the structures that surround the approved Guthrie. For clarity, the surrounding structures include, to the north, two one-story single-family residences, to the northeast, one two-story single-family residence, to the east, a one- story church with a steeple and one one-story single-family residence, and to the south, one two- story four-plex—all zoned residential within the NCOD; and to the west, the one-story Sapphire Motel—zoned B2-M within the MURD.10 The appellant asks the Commission to consider the following applicable guidelines, among others, excerpted from the Bozeman NCOD Guidelines in the context of mandatory 38.340.050(D) compatibility analysis. 10 Compare the appellant’s honest description of the surrounding structures with the Developer’s characterization in the Guthrie application: “The subject property is in a transitional location that includes both residential and commercial properties. There is a single-family home to the north, a 3-story church to the east, a 3 story multi-family building to the south, and a 31-room motel to the west that is zoned B-2M and will eventually become 4-5 stories in height as a part of the Midtown Urban Renewal District.” See Application 24493, page 5. This is distortion. Where the Staff Report copy and pastes much from the application, and the application evidences distortion, the Commission should be wary of clear error in the Staff Report. 18 3B. Building Mass and Scale: While new buildings and additions are anticipated that may be larger than many of the earlier structures, [the Guthrie] should not be so dramatically greater in scale than the established context that the visual continuity of the neighborhood would be compromised. 1. [The Guthrie’s construction should] be similar in mass and scale to those single household residences seen traditionally. 2. On larger structures, [like the Guthrie,] step down a building’s height toward the street, neighboring structures and the rear of the lot. 4. The front wall of [the Guthrie] should not exceed two stories in height. 5. A façade should appear similar in dimension to those seen traditionally in the neighborhood. The approved four-story, 47-foot, 91-unit Guthrie categorically lacks compatibility with the building form, mass, and scale of the residential NCOD-zoned neighborhood in which it sits. The Guthrie does not meet Bozeman’s NCOD Guidelines, is not compatible per Section 38.340.050(D), and therefore should not receive the required Certificate of Appropriateness to develop a new building in the NCOD. Several Commissioners made this finding at the July 9, 2024 hearing, denying the Guthrie on that basis. Insofar as the Commission upholds the Development Director’s approval, the appellant asks those Commissioners to make findings supporting their reversal of opinion. Table 1. Comparison of mass and scale of the Guthrie as compared to the neighboring two-story four-plex and one-story church. See additional analysis attached as Exhibit 006. Given that the approved Guthrie is dramatically greater in mass and scale than the surrounding one-story and two-story single-family residences, one-story church, two-story four- plex and, one-story motel, lacks any step down, and has a four-story front wall exceeding the 19 maximum two stories11, the Development Director’s decision to grant the COA and approve the Site Plan for the Guthrie was unlawful, and arbitrary and capricious, and should be overturned. Because the COA was unlawfully granted, the request to demolish the existing building should likewise be denied. Despite the Staff Report’s conclusion that it may be guided by the NCOD guidelines, the Staff Report nevertheless employs the guidelines. The Staff Report’s findings are insincere and reflect administrative gymnastics to move forward with a bad application simply because it promises “affordable” development pursuant to the AHO. The Commission should review the Staff Report’s findings, highlighted in yellow in Exhibit 002, on pages 34 and 35. Findings like these contribute to a lack of public trust:  Building Form: “The building is rectangular with a flat roof which is consistent with portions of the existing building’s roofline on the site as well as similar to adjacent buildings in the neighborhood and the Midtown Urban Renewal District. The proposed building is located in a transition area between the commercial corridor of North 7th Avenue and the nearby residential development.”  Building Mass and Scale: “The existing building is roughly 35,000 square feet and two stories tall, which is larger than many of the adjacent buildings. Considering its location adjacent to a commercial corridor and its R-5 zone district status, it is expected that any new building proposed will be larger.” First, the Staff Report does not examine the Guthrie’s compatibility with the residential neighborhood in the NCOD in which it sits. The Staff Report instead conducts its Sec. 38.340.050(D) compatibility analysis as if the property were located within the Midtown Urban Renewal District (MURD). See Staff Report, at page 3412 (“the design of the [Guthrie] incorporates components of the [MURD] such as exposed concrete, transparency, and increased density since the future development of the [MURD] is expected to be 4-5 stories”). Again, City Staff is not tasked with evaluating the compatibility of the Guthrie with the MURD. The Guthrie is not in the MURD. The Staff Report errs by failing to examine the Guthrie’s compatibility with the surrounding residential neighborhood in the NCOD. The Staff Report appears to analyze 11 The approved Guthrie did not utilize a deep incentive in the AHO related to height. Therefore, that incentive does not bar applicable NCOD standards and Bozeman NCOD Guidelines from applying. The applicant must reduce the approved Guthrie to two-stories for compatibility and certification as appropriate within the residential NCOD pursuant to site plan review, criteria, applicable zoning regulations, and criteria to receive a COA. 12 A copy of the Staff Report, with this instance of clear error highlighted in yellow on page 34 is attached as Exhibit 002. 20 compatibility with the MURD because it is obvious the Guthrie is not compatible with the existing residential postwar neighborhood in the NCOD. The Staff Report, in general, downplays the Bozeman NCOD Guidelines as outdated and lacking clarity. The Staff Report misstates they were last updated in 2006. While the Bozeman NCOD Guidelines were adopted January 17, 2006, they were last amended July 13, 2015. “Chapter 3. Guidelines for Residential Character Areas” includes incredibly detailed guidelines. The Staff Report states: “there is very little guidance on how to manage higher density and mixed-use development outside of the Main Street/B-3 Area.” This is not true. Rather, the Bozeman NCOD Guidelines have direct on-point guidance, indicating that the form, mass, and scale of the Guthrie is not compatible in the residential neighborhood. City Staff appear frustrated that the Guthrie property is not in the MURD, such that its construction could more easily be certified as appropriate. Indeed, the record indicates City Staff attempted to shrink the NCOD boundary along N. 5th Ave. in a rushed manner, the day before HomeBase applied to develop the original Guthrie. Based on a memorandum drafted by the Development Director, and others, the City Staff and the Historic Preservation Advisory Board held an unscheduled special meeting, on September 12, 2023, to discuss staff-recommended removal of the project site from the NCOD. The Board unanimously rejected the NCOD boundary- change. The next day, Home Base filed its original Guthrie application13. Perhaps the City needs to reevaluate and/or amend the NCOD through established processes that protect the procedural due process of owners of property within the NCOD. However, the NCOD standards and Bozeman NCOD Guidelines are compulsory provisions of the UDC, which currently apply to the property at issue. B. THE APPLICATION DOES NOT MEET THE CRITERION SET FORTH IN SEC. 38.230.100(A)(7)(a); THE GUTHRIE IS NOT COMPATIBLE IN MASS OR SCALE WITH THE SITE OR ADJACENT RESIDENTIAL NEIGHBORHOODS. Incorporating much of the argument above, the mass and scale of the Guthrie is not compatible with, and/or sensitive to “the immediate environment of the site and the adjacent neighborhoods [. . .] relative to architectural design, building mass, neighborhood identity, landscaping, historical character, orientation of buildings on the site and visual integration. The Commission cited this provision to deny the Guthrie. Again, the appellant asks the Commission 13 See Exhibits 007, 008, 009, 010, 011, 012 21 for specific findings explaining how the four-story 91-unit Guthrie integrates compatibly with the existing residential NCOD neighborhood. The Staff Report concludes the Guthrie is compatible and sensitive to the site and adjacent neighborhoods. In support, the Staff Report finds: “The proposed development is an infill residential development that is compatible with and contributes to the new developing urban form that is part of North 7 Avenue and the [MURD]. This taller form has been emerging over the past few years as a dynamic, mixed use, and urban area that assists in revitalization of the [MURD]. It also supports a mix of different housing types that promote a walkable neighborhood” (emphasis added). See Staff Report, highlighting on page 29, attached as Exhibit 002. The Staff Report fails to correctly analyze compatibility. The adjacent residential neighborhood that should be the subject of the Staff Report’s analysis includes one and two- story single-family residences, a church, a one-story motel, and a two-story fourplex. Public comment contains anger and lack of trust. Mischaracterizations, like here, by City Staff, foster that anger. The Commission should overturn the Development Director’s approval based on the Staff Report’s analysis for this review criterion alone; the Staff Report fails to consider adjacent neighborhoods in its analysis about compatibility with adjacent neighborhoods. Section 38.230.100(A)(7)(a) does not ask the review authority to imagine future urban form existing in a different neighborhood—the MURD—in its compatibility analysis. As much as City Staff wishes the project site were in the MURD, it is not. The gymnastics employed in the Staff Report to avoid analysis of the Guthrie’s compatibility with residential neighborhoods are angering and foster lack of trust. The Guthrie is not compatible with the site or adjacent residential neighborhoods. C. THE APPLICATION DOES NOT MEET THE DESIGN CRITERION SET FORTH IN SEC. 38.230.100(A)(7): HOMEBASE DOES NOT CORRECTLY CALCULATE OPEN SPACE; THE SITE PLAN FOR THE GUTHRIE DEPICTS DESIGN FLAWS IMPACTING PUBLIC HEALTH AND SAFETY. The Staff Report indicates Sec. 38.520.060 required HomeBase to provide 9,750 square- feet of open space; HomeBase provided 9,798 square feet of open space and complies with this provision of code, as well as the site plan review criteria. The Site Plan improperly uses bicycle parking space in its open-space calculation to meet open space requirements. See open space calculations attached as Exhibit 013. The Site Plan includes a three-bicycle parking area on the northeast corner of the property at 5th Avenue and 22 West Villard Street, and a fourteen-bicycle parking area in the common area on the southeastern, interior side of the Guthrie to meet open space requirements. These areas do not meet Sec. 38.520.060.B.2.d, which states: “shared open space must feature paths or walkable lawns, landscaping, seating, lighting, and play structures, sports courts, or other pedestrian amenities to make the area more functional and enjoyable for a range of users” (emphasis added). Pursuant to Sec. 38.700.150, the area with bicycle parking is not open space or a pedestrian amenity, but a parking area. See Sec. 38.700.150 (a parking area is “an area, other than a street or alley designated for use, or used, for temporary parking of vehicles”). Bike racks are for storing and parking bicycles, and just like auto parking lots, they do not count toward open space requirements. Further support is found in Sec. 38.220.080.A.2.h, which requires a “detailed plan of all parking facilities, including circulation aisles, access drives, bicycle racks, compact spaces, handicapped spaces and motorcycle parking, on-street parking, number of employee and nonemployee parking spaces, existing and proposed, and total square footage of each” (emphasis added). The Staff Report discusses mandatory bicycle where it considers “Parking (38.540)”. While this argument may seem petty on appeal, square feet add up. The aggregate of mistakes like this could in fact mean HomeBase does not meet the open space requirement. Public comment on the first application revealed that HomeBase included an office in its open space calculation. The Site Plan raises additional public health and safety-related questions when considering the Guthrie’s design for vehicle circulation. The Staff Report simply states the Guthrie satisfies Sec. 38.520.050; the Guthrie’s design of vehicular circulation systems assures that vehicles can move safely and easily within and to and from the site. The appellant offers three examples with public health and safety implications, challenging this finding. The first example considers garbage pick-up. The Site Plan shows the required heated tip pad is entirely within the confines of the property, as well as inside the public sidewalk. The straight 50-foot “trash loading path” on the Site Plan requires garbage and recycling trucks to approach the tip pad northbound at an acute 45-degree angle, while crossing the southbound lane of travel, and blocking the sidewalk, ingress and egress to the property, and a portion of the right-of-way for the duration of the trash-collection process. After collecting solid waste and recycling, the approved design requires garbage and recycling trucks to back out onto the street, and to cross the southbound lane of traffic headed in the opposite direction—into the northbound lane, before 23 continuing in their intended direction of travel. This is patently unsafe. Comment from the Solid Waste Department stated they needed a “50-foot straight approach to the tip pad” and a turn-around for the garbage truck—it could not back out onto the street. See Exhibit 014. The second example examines what appellant refers to as the one-way-one-way parking lot on the Site Plan. There is no turnaround for vehicles accessing the parking lot. While this is not a specific requirement, the design is poor and arguably unsafe. As envisioned, a car will pull into the parking lot, find it full, and back out to the street. The third example fire-fighting abilities relative to the location of fire hose pulls. The Site plan depicts two 150-foot fire hose pulls from the street. These supposedly demonstrate that the fire department will be able to adequately fight fire in the Guthrie’s interior inaccessible from the street. In an emergency, this design requires that no vehicle be parked in the westernmost parking space on Villard, since the illustration depicts the hose passing through that space. Although the illustration shows that the hose pulls meet on an absolute basis from north to south, they do not physically meet and do not ensure complete coverage of the building. If the parking lot is not accessible, a fire protection gap results; parts of the exercise room as well as units A113, A115, and A117 will not have coverage except from the parking lot. See Exhibit 015. When summarily viewed, the Site Plan for the Guthrie is congested and reveals unmitigated flaws in design that raise unanswered public health and safety questions. For these reasons, the Site Plan does not meet the criterion set forth in Sec 38.230.100(A)(7), and approval should be overturned. D. THE APPLICATION DOES NOT MEET THE CRITERION SET FORTH IN SEC. 38.230.100(A)(6); THE PROJECT DOES NOT CONFORM WITH UDC COMMUNITY DESIGN PROVISIONS RELATED TO TRAFFIC, CONGESTION, AND PUBLIC SAFETY. The findings and conclusions in the Staff Report related to the traffic impact study (TIS) and public safety signal error. At best, the Staff Report leaves the City and public with unanswered questions regarding their public safety at the intersections surrounding the Guthrie given the predicted increase in traffic. The Development Director’s approval of the Guthrie, while questions of public safety remain unanswered, is unlawful and arbitrary and capricious. The appellant asks the Commission to overturn the approval decisions in furtherance of its duty to protect the safety and well-being of neighbors to the Guthrie, such that unanswered safety-related questions may be further researched and properly analyzed. 24 Although the updated TIS reflects a reduction in traffic—this iteration of the Guthrie included 20 less units than the first—the TIS uses the same underlying data used by the original TIS used; the report and conclusions are substantially the same. The copy and paste nature of staff’s analysis should raise eyebrows when quantifiable aspects of the application have changed. Public Comment included appellant’s submittal of an independent traffic report and analysis regarding the initial TIS, attached as Exhibit 016. This report and analysis remain accurate and responsive, because the data and conclusions in both City Staff submitted TIS are substantially the same. Specifically, Sec. 38.400.060(4) states: “Intersections must have a minimum acceptable [Level of Service (LOS)] of ‘C’ for the intersection as a whole” (emphasis added). The Staff Report interprets as a whole to mean that even if one leg of the intersection receives LOS D, the City can average compliance of the intersection, and find that, because 3 other legs meet LOS C, the intersection averages LOS C and complies as a whole. This interpretation is unsupported, unlawful, and arbitrary and capricious. The record indicates City staff engineering found LOS D for the N 7th Avenue/W Villard Street and N 7th Avenue/W Beall Street intersections; the Staff Report strangely still classifies these intersections as LOS C. The Highway Capacity Manual does not support analyzing two-way stop-controlled intersections as a whole, yet the staff incorrectly concludes that intersections like N 7th Avenue/W Villard Street and N 7th Avenue/W Beall Street meet LOS C overall, despite evidence of LOS D on current minor legs and LOS of F for future legs. See the Staff Report, highlighted on page 24, and attached as Exhibit 002. When asked about its LOS interpretation by the Commission at the July 9, 2024 hearing, City Staff responded that averaging an intersection, such that it meets the required LOS as a whole, despite individual legs failing to meet the LOS, was the way the City had always done things. The Commission specifically pinpointed to this aspect of the Guthrie application, which remains unchanged, as a reason for denial. The appellant asks the Commission for a written finding explaining its change in position. The fact that City Staff applied a different interpretation and denied a requested zone map amendment (application 22189 attached as Exhibit 017, and supporting reports in Exhibit 018) predominantly because a nearby intersection (Haggerty Lane—LOS F—and East Main Street— LOS A) had a LOS F, further signals arbitrary and capricious and unlawful decision-making. See MEIC, ¶ 26 (administrative “actions must also be consistent; an internally inconsistent analysis 25 signals arbitrary and capricious action”). City Staff’s denial of application 22189 does not employ the same LOS interpretation used to approve the Guthrie despite intersection deficiencies. See Exhibit 014, at pg. 2. Despite revealing that two intersections failed to meet the City’s required LOS C standard, the Development Director did not condition approval on mitigation of these deficiencies. The TIS suggests potential improvements, but lacks detailed traffic analysis to support feasibility or effectiveness. In sum, the Guthrie application fails to comply with UDC requirements for intersection performance. See Sec. 38.400.060(4). The Staff Report does not adequately address safety, is incomplete, and lacks analysis. The nuances related to traffic and safety raised in public comment are not addressed by the Staff Report, which copy and pastes from the initial Guthrie application. Although City Staff requested a signal warrant study, the study used data from the initial TIS that lacked complete analysis. This lack of analysis contributed to the conclusion that no signal warrants were met, most concerningly: warrants for School Crossing and Pedestrian Volume. The Staff report does not adequately explain how it calculates “trips”; does the calculation incorporate the fact that the “affordability” calculation for each one-bedroom supposes two-person occupancy, and likely two cars, for each of the Guthrie’s one-bedroom units? The TIS excludes key arterial and collector intersections within the required half-mile study area, violating BMC 38.220.060.A.11.g.2.c.ii. Additionally, the TIS fails to analyze all signal warrants for required intersections or evaluate the safety impacts of increased traffic, as mandated by BMC 38.220.060.A.11.h. City Staff did not identify these intersections as exempt during the pre-application review, concept plan review, or informal project review. See Exhibit 014, at pg. 2. Although the Staff Report states N. 7th Ave/Durston Rd/W Peach Street were excluded, this is an unlawful post-hoc justification. The record does not document any waiver granted by the City to HomeBase after pre-application review nor any waiver of the adopted development standards by the development review committee during the pre-application process. As such, omission violates Sec. 38.220.060.A. III. IN ANY INSTANCE, THE TWO-YEAR STAY ON DEMOLITION SHOULD REMAIN IN PLACE; THE APPLICATION FOR DEMOLITION DOES NOT MEET THE CRITERIA IN SEC. 38.340.090(C), AND HOME BASE AND THE CITY HAVE NOT EXPLORED ALTERNATIVES TO DEMOLITION. 26 No demolition of the existing contributing historic building is permitted where the Commission overturns the Development Director’s Site Plan approval and CCOA. Appellant first requests no demolition of the contributing historic building from the Commission. In the alternative, the criteria set forth in Sec. 340.090 are not met. As such, the two-year stay on demolition of the building should remain in place. The existing building on the project site meets the UDC’s definition of a historic structure, because it is “[e]ligible, as determined by the [City], to be listed . . . as a contributing building to an existing or potential historic district.” Sec. 38.700.090. A survey referred to in the record as the Metcalf Report found that the Karp Addition, the neighborhood in which the Guthrie sits, has historic district potential. For historic buildings, including the existing building on the site, compliance with Sec. 340.090 is mandatory before demolition can be approved. Section 38.340.090.D.3.a provides: If an application for demolition . . . is denied due to failure to meet section 38.340.090.C issuance of a demolition . . . must be stayed for a period of two years from the date of the denial in order to allow the applicant and city to explore alternatives to the demolition . . . , including, but not limited to the use of tax credits or adaptive reuse. The two-year stay may be terminated at any point in time if an alternate proposal is approved or if sufficient additional evidence is presented to otherwise satisfy the requirements of this section. a. Early termination of two-year stay. An owner of property subject to a stay under this section may seek early termination of the stay if the owner demonstrates s/he has actively and in good faith sought alternatives to demolition. These alternatives may include but are not limited to: listing the property for sale as a historic property; actively seeking input from neighborhood groups and interested parties; exploring alternative funding sources for stabilization and/or reconstruction; and offering the property for relocation. (emphasis added). The Staff Report indicates early termination of the two-year stay for demolition is appropriate pursuant to Sec. 38.340.090.D.3. Demolition is currently stayed for two-years, in part because the initial application did not meet the criteria to demolish a contributing historic structure. The Staff Report cannot here make conclusory statements that the Sec. 38.340.090.D.3 criteria are met; this is a reversal of opinion from the City review authority and warrants better analysis. HomeBase filed the approved application. If the Commission overturns the decision approving the application, the analysis ends; HomeBase cannot demolish the building. In the 27 alternative, the two-year stay should remain in place. The record does not show HomeBase, in good faith, sought altenatives to demolition. Indeed, the record shows the opposite. See Exhibit 001. Beyond Section 38.340.090.D.3.a, HomeBase and the City have not made honest efforts to explore alternatives to demolition, and the criteria set forth in Sec. 38.340.090(C) are still not met. Sec. 38.340.090(C) requires the Development Director to consider consider “[w]hether the structure has no viable economic life remaining. ‘No viable economic life remaining’ means the costs of repair and/or rehabilitation to bring the structure to a habitable condition as established by the applicable technical codes in article 10.02, exceed the costs of demolition and redevelopment to minimum standards with a building of the same type and scale.” While the Staff Report states there is no viable economic life remaining, this analysis was conducted in an ingenuine and improper manner. The findings in the Staff Report read like checks in a box. The two-year stay should remain in place. IV. HOMEBASE UNLAWFULLY EXPLOITS THE DEEP INCENTIVES IN THE AHO AT THE EXPENSE OF BOZEMAN’S HISTORIC NEIGHBORHOODS AND WITHOUT THE ASSURANCE OF AFFORDABLE HOUSING. It is unfortunate that the test driver for the novel AHO, and its deep incentives, comes from HomeBase, and proposes the Guthrie: four-stories and 91-units in a residential neighborhood within the NCOD. The rents the Guthrie will charge for 50% of the approved units are not affordable: Studio dwelling: $1,526.25 per month (AMI for a one-person household); One-bedroom dwelling: $1,745.00 per month (AMI for a two-person household); Two-bedroom dwelling: $1,962.50 per month (AMI for a three-person household). The calculation for a one-bedroom unit should not utilize the AMI calculation for two people. As such, “affordability” prejudices against single people renting one-bedroom dwellings. As written, the deep incentive related to parking raise ADA compliance issues, and implicate the void for vagueness doctrine. The City needs to better define affordability. Homeowners with ADUs will be able to check Zillow and see that the Guthrie charges $1,745.00 per month for its one-bedroom affordable unit. Guthrie rents will signal the floor for rent pricing in Bozeman, are unaffordable, and will contribute to increased rent in the desirable rental stock for the missing middle that does exist. It is unfortunate that the Guthrie test-drives the AHO, because for an ordinance like the AHO to honestly address an issue like affordability in Bozeman, it needs the support, effort, and 28 brain-trust of the entire Community—including homeowners and non-homeowners. This experience, and the City Staff’s apparent drive to approve this project, despite its non- compliance with many other aspects of the UDC, has soured the community’s support, and particularly the support of homeowners within the NCOD, of the AHO. To the degree that the Commission upholds the Development Director’s decision approving the Guthrie, and prioritizes utilizing the novel, well-intentioned, and flawed AHO over other aspects of the UDC, with which the Guthrie is out of compliance, the appellant facially challenges, and preserves its ability to challenge, the AHO—in effect on December 4, 2024. The UDC states: “the provisions of [the UDC] are minimum requirements adopted for the promotion of the health, safety and general welfare of the community. In some instances, the public interest will be best served when such minimums are exceeded. Wherever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules or regulations, or wherever there is an internal conflict within this chapter, the most restrictive requirements, or those imposing the higher standards, will govern.” That HomeBase filed an application to provide “affordable” housing, does not invalidate the other unmet requirements of the UDC. The Staff Report’s analysis reads as if the die is cast in favor of approval of an application using the AHO at all cost, despite noncompliance with mandatory site plan review criteria. Where the Commission is in agreement with City Staff and the Development Director, this interpretation and policy suggest that the ordinance is facially flawed. The Commission should not allow HomeBase to capitalize on utilization of the novel AHO where the application does not meet the site plan review criteria, as argued above. Bozeman desperately needs affordable housing, and one of the only tools available to the City to encourage private investment in affordable housing is an ordinance like the AHO. Enabling HomeBase to exploit the AHO by approving the Guthrie will only foster community opposition for the AHO and the potential that the AHO will not survive a facial challenge. CONCLUSION For the foregoing reasons, appellant requests the Commission to overturn the Development Director’s approval of the Guthrie on January 15, 2024. RESPECTFULLY submitted this 30th day of January, 2025. WESTERN ROOTS LAW PLLC 29 _________________________ Kirsa A. Shelkey Counsel for Appellant