No preview available
HomeMy WebLinkAbout03-31-25 Public Comment - K. Shelkey - Appellant's Response Memo and Appeal MaterialsFrom:Kirsa Shelkey To:Bozeman Public Comment; Kelley Rischke Cc:Breeann M. Johnson; Bozeman Home Advocacy Group Subject:[EXTERNAL]Appellant"s Response Memo and Appeal Materials Date:Monday, March 31, 2025 2:14:19 PM Attachments:2025.03.31 Appellant"s Response To Commission Memo.pdfAppeal Legal Framework.pdf2025.01.30 Final Guthrie Appeal.pdf CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Hi Kelley, Please forward the following email and attachments, which are now part of the openpublic record, to the City Commissioners. For reasons stated below, please copy me onthat email, such that I can be sure Commissioners have received Appellant's Appeal andResponse prior to tomorrow's hearing. Thank you.Dear Commissioners, My client has some concerns regarding whether Commissioners have received theAppellant's appeal materials, including the Appeal itself. The appeal does not appear in the Commission's agenda packet and there does notappear to be a link to the appeal in the Commission Memo. Interim City Manager ChuckWinn responded to this concern by stating: "The folder containing the appeal and relateddocuments is linked on page 46 of the staff report under Attachments:. Additionally, theappeal materials were posted online on the Community Development Viewer on March3, the same time as the public notice." Appellant is concerned by this. Commissionersmust navigate from the Commission Memo to the Staff Report, and scroll to the last page(46), in order to find a link to Appellant's appeal file. In an effort to make Appellant's appeal more readily available to Commissioner's, pleasefind it attached. Furthermore, the public comment file does not appear to have been updated since March17, 2025. Given that the appeal hearing is tomorrow, this is likewise concerning.Undersigned counsel has prepared a response to the Commission Memo made availableto Appellant on March 27, 2025, and attaches it here for convenience, to ensure theCommission has access to the response prior to the Appeal Hearing.Appellant recommends the following logical and chronological reading of appealmaterials:1. Staff Report 2. Appellant's Appeal3. Commission Memo4. Appellant's ResponseAppellants send this email simultaneous with submitting this email and its attachments,Appellant's Appeal, Response to the Commission Memo, and Companion LegalFramework, into the public record for Commissioners to review.Sincerely,Kirsa Shelkey Confidentiality Notice: This email transmission is privileged and confidential and is intended only for the review of the party to whom it is directed. If you have received this email in error, please immediately return it to the sender and delete. Unintendedemails shall not constitute waiver of the attorney-client or any other privilege. March 31, 2025 KIRSA SHELKEY 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 APPELLANT’S RESPONSE TO THE MARCH 26, 2025 COMMISSION MEMO City Staff instructed the Appellant, Bozeman Home Advocacy Group, that the procedure set forth in BMC 38.250.030 would govern the present appeal. Pursuant to BMC 38.250.030.H.: “The material to be considered by the [Commission] must be the record of the project review, including the administrative review authority’s decision, in addition to materials that may be submitted during the processing and review of the appeal.” On March 19, 2025, the City’s Assistant Attorney emailed counsel for the Appellant and Developer, indicating: “The staff report and all materials relevant to the appeal hearing will be made available to the public[,including Appellant,] with the publication of the Commission packet on March 27, 2025,” and that Appellant has 10 minutes to present their argument on appeal and must provide their presentation to City Staff before noon on March 31, 20251. On March 27, 2025, the Community Development Director’s 47-page Commission Memo was made available. The Commission Memo reads like a response brief an attorney might file in court. However, in court, established timelines make transparent the fact that a response brief will be filed, and ensure that an appellant is not blind-sided and has a fair amount of time to respond. 1 A February 13, 2025 letter from the City’s Community Development Department additionally stated: “As required1, the Community Development Department will prepare a memorandum to the City Commission providing the administrative project decision materials and the appeal materials,” which will “be made available to the City Commission along with materials for the April 1, 2025 meeting.” Appellant wishes to understand where it is required that City Staff file a brief-like Memo with the Decision and Staff Report being appealed, and why that requirement was never shared with Appellant. The Appellant pens this reply to build a record in case of appeal, but also in an effort to shed light on the perceived lack of fairness for the Commission, such that the Commission might understand the public’s underlying frustrations with City process. Here, the Appellant feels blind- sided by the 47-page Commission Memo—made available 2 working days prior to when Appellant’s presentation must be submitted to City Staff. The language used in BMC 38.250.030 and in City Staff correspondence does not lead a reasonable person to expect “materials relevant to the appeal hearing” means the 47-page brief-like Commission Memo. The Appellant appeals from decisions already made and supported by facts and conclusions established in the Staff Report; the Commission on appeal reviews the decisions already made and reported for error. While the Commission Memo improperly makes novel arguments related to standing and issue preclusion, Appellant’s frustration with the Commission Memo is less with its substance and more with procedural fairness. The Appellant had nine working days2 to prepare its appeal of the Guthrie II’s administrative approval. City Staff then took thirty-nine working days to make its Commission Memo available. Why didn’t City Staff make the Commission Memo available sooner? Why did City Staff refer to a 47-page Commission Memo as “materials relevant to the appeal hearing” days before it made the Commission Memo available? There is no established procedure for the Appellant to provide a written reply. A February 13, 2025 letter from the City’s Community Development Department indicates the Appellant “may submit additional information to the City Clerk up and until the close of public comment at the appeal hearing.” Appellant therefore permissively submits this response to the Commission Memo for the Commission’s consideration, and notes that Appellant was allotted three working days to do so before the appeal hearing, compared with the City’s thirty-nine working days to respond to the Appellant’s appeal, and unlimited presentation time at the appeal hearing. Incorporating the fairness and due process argument in the appeal, Appellant reasserts that implementation of the appeal process by City Staff does not afford Appellant the right to know and participate fairly in this proceeding. As such, the Appellant reasserts and preserves its constitutional due process claims. At the April 1, 2025 hearing, given the ten-minute timeline for appeal, the Appellant will not be able to cover in detail all of the arguments presented on appeal. The Appellant asks the Commission to ask questions regarding arguments the Appellant preserves but is not able to address. STANDARD OF REVIEW City Staff and the Appellant agree that the Commission’s role on appeal is to review the Development Director’s decisions—(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 2 On January 16, 2025, the Appellant emailed City Staff and asked if the City could confirm the deadline for appeal was January 31, 2025. City Staff responded that while the Staff Report was made available on January 16, 2025, it was technically signed on January 15, 2025, which triggered the ten working-day appeal window; the appeal deadline was January 30, 2025—nine working days after the City made the decision available for review. NCOD—and Staff Report for error. Where the Commission finds error in the Director’s decisions and Staff Report, the Commission should overturn the Director’s approval decisions enabling development of the Guthrie. I. THE SITE PLAN FOR GUTHRIE I (23354) AND GUTHRIE II (24493) REVEAL THE SAME UNMITIGATED DESIGN FLAWS AND RAISE THE SAME UNANSWERED PUBLIC HEALTH AND SAFETY QUESTIONS. Aspects of the Guthrie I, which the Commission found supported the Guthrie I’s denial for non-compliance with the site plan review criteria3, remain unchanged in the Guthrie II project, and likewise support denial. City Commissioners previously cited specific circulation issues, like the one-way-one-way interior parking lot and plan for garbage pick-up, in support of its conclusion that the Site Plan did not meet the mandatory review criteria. City Commissioners further cited that the Site Plan was too crammed, was far from parkland, and that that the traffic impact study did not meet the level of service required to grant the certificate of appropriateness. The facts supporting Commissioners’ conclusions regarding the Guthrie I’s failure to meet mandatory criteria related to community design, traffic, public safety, health, and general welfare, are unchanged. Appellant therefore asks that Commissioners’ conclusions with respect to the Guthrie II’s compliance with the mandatory criteria related to community design, traffic, public safety, health, and general welfare, remain unchanged. The Appellant respectfully reminds Commissioners that Montana courts have held that unexplained changes and reversals of opinion are hallmarks of arbitrary and capricious decision-making. Appellant reincorporates its claims related to open space, design, and traffic in its appeal, and reasserts that the Guthrie II’s site plan does not conform with UDC community design provisions related to traffic, public safety, health, and general welfare. The Appellant here takes the opportunity to briefly respond to argument made by City Staff in the Commission Memo. Because the Appellant may not have time to discuss these arguments in detail, the Appellant welcomes questions from the Commission at the hearing regarding the following: TRAFFIC IMPACT STUDY Despite the Commission Memo’s insistence that alternative conclusions are “unreliable” and “repeatedly flawed,” the Appellant asks the Commission to, in fairness, consider the Report submitted by Greenlight Engineering—a licensed traffic engineering consultant in the State of Montana—and public comment submitted by Daniel Carty. This response incorporates the Report and Carty public comment by reference. Appellant and City Staff agree that the LOS standard articulated in BMC 38.400.060.B.4. applies to the 7th Avenue/W Villard Street and N 7th/W Beall Street intersections: 3 There are no City Commission minutes for the July 9, 2024 hearing. An October 15, 2024 email from Sarah Rosenberg to Alison Sweeney indicates the link to the City Commission meeting stands as the findings. Therefore, Appellant summarizes the findings by dictating from the link to hearing provided. To protect Appellant’s right to know and participate in the City’s decision-making process, the Appellant requests the Commission to make written findings memorializing its decision on appeal. Level of service standards. All arterial and collector streets and intersections with arterial and collector streets must operate at a minimum level of service “C” unless specifically exempted by this section. The city determines level of service (LOS) values by using the methods defined by the most recent edition of the Highway Capacity Manual. The review authority may approve a development only if the LOS requirements are met in the design year, which must be a minimum of 15 years following the development application review or construction of mitigation measures if mitigation measures are required to maintain LOS. Intersections must have a minimum acceptable LOS of “C” for the intersection as a whole. (emphasis added). Without delving into detail, Appellant asks the Commission to consider the following errors with regard to the LOS at these two intersections in the Staff Report, and repeated in the Commission Memo. Error 1: City Staff and Appellant agree, that using the methods defined by the most recent edition of the Highway Capacity Manual, the intersections at 7th Avenue/W Villard Street and N 7th/W Beall Street do not meet the minimum acceptable LOS of “C.” City Staff did not require mitigation. Therefore, the Development Director’s approval should be overturned. The approved project does not meet this provision of the Bozeman Municipal Code. BMC 38.400.060.B.4. Error 2: City Staff’s method of averaging individual intersection legs to determine the LOS as a whole is not a method defined by the most recent edition of the Highway Capacity Manual. City Staff’s use of this method is therefore in error and against this provision of Code. BMC 38.400.060.B.4. The Commission Memo does not address these two errors. The Commission Memo appears to indicate that the “or” is somehow relevant in the code provision authorizing project approval “only if the LOS requirements are met . . . or construction of mitigation measures if mitigation measures are required to maintain LOS” (emphasis added in Commission Memo). No mitigation measures were required. Instead, the Commission Memo concludes “all standards for intersection performance are met,” even though the LOS for the intersections, using the prescribed methodology, is a “D.” While the Appellant can appreciate that an intersection’s LOS rating reflects delay from the perspective of the driver, and is not a particularly useful safety metric from the perspective of bicyclists and pedestrians, this notion does not allow City Staff to arbitrarily sidestep BMC 38.400.060.B.4. Other municipalities require consideration of pedestrian-specific LOS ratings at intersections in conjunction with driver-centric LOS ratings. Perhaps the City Commission could amend provisions of code to include such methodologies, but until the Code is modified, the LOS rating and methodology prescribed by BMC 38.400.060.B.4. applies. It is unlawful for City Staff to make a policy decision that this provision of Code does not apply. It is therefore undisputed that the approved Guthrie II project does not meet BMC 38.400.060.B.4., and Appellant requests the Commission to correct these errors and overturn the Guthrie II. OPEN SPACE Appellant disagrees with the Commission Memo’s finding that bike racks are pedestrian amenities “because they enhance functionality and enjoyment of open spaces.” Appellant instead contends that bike racks take away space that could otherwise be enjoyed as open space. The tenants of the Guthrie II are not able to interact with the space allotted to bike rack parking in the same way they are able to utilize “paths or walkable lawns, landscaping seating, lighting, play structures, sport courts, or other pedestrian amenities,” because bike rack parking is not a pedestrian amenity and is not appropriate for shared open space. See BMC 38.520.060.B.2.d. The area allotted to bike parking cannot be fairly characterized as space suitable for recreational biking as argued by the Commission Memo. The Guthrie II is far from parkland. As the Site Plan shows, the Site Plan is crammed and has little open space for the number of potential residents. Error: City Staff should not consider areas that will be used to park bikes as shared open space. Where the areas used for bicycle parking are removed from the shared open space calculation, the Commission Memo and Appellant agree, the Guthrie II does not meet the open space requirement. TRASH PICK-UP The Commission Memo summarizes the design for trash pick-up as follows: “it is true that the refuse truck blocks the southbound lane of traffic while utilizing the 50-foot straight loading path. However, the driver has full view of southbound traffic and uses back-up cameras and mirrors to see the northbound traffic, so the situation does not result in a situation where the driver is required to back up blindly in traffic.” The Commission Memo appears to argue that because this design is better than its first design, it is safe. This is flawed reasoning. The Guthrie II’s design of vehicular circulation systems DOES NOT assure that vehicles can move safely and easily within and to and from the site, and raises public health and safety questions. THE ONE-WAY ONE-WAY PARKING LOT On appeal, Appellant argues that the one-way one-way interior parking lot design is unsafe and certainly DOES NOT assure that vehicles can move safely and easily within and to and from the site. The Commission Memo argues in response that: the design is not illegal; three-point turns can be done in small spaces; and safety is linked to vehicle speed—reverse is a slow speed. These responses should not convince the Commission that the Guthrie II’s flawed design is safe. THE NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT (NCOD) In addition to the argument below regarding the NCOD, please consider public comment submitted by Dan Carty, which is hereby incorporated in this response. II. THE GUTHRIE II DOES NOT COMPLY WITH THE MANDATORY SITE PLAN REVIEW CRITERIA (BMC 38.230.100.A.) AND/OR THE MANDATORY CCOA REVIEW CRITERIA (BMC 38.340.050.) FOR PROJECTS WITHIN THE NCOD. The Commission Memo highlights and repeats for Commissioners the errors in the Development Director’s consideration of whether the Guthrie II meets the mandatory site plan review criteria (BMC 38.230.100.A.) and mandatory COA review criteria (BMC 38.340.050.), triggered by site plan review. It does not. It is undisputed that the Guthrie II is located within the NCOD zoning district. What is the NCOD? The Code tells us. The zoning district was created in 1991 with the intent and purpose “to stimulate the restoration and rehabilitation of structures, and all other elements contributing to the character and fabric of established residential neighborhoods and commercial or industrial areas. New construction will be invited and encouraged provided primary emphasis is given to the preservation of existing buildings and further provided the design of such new space enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area. Contemporary design will be encouraged, provided it is in keeping with the above-stated criteria, as an acknowledged fact of the continuing developmental pattern of a dynamic, changing community.” BMC 38.340.010. Why does this matter? In addition to compliance with the project site’s base zoning (R-5), the project must comply with the regulatory provisions of the overlay zoning district—the NCOD—codified at BMC 38.340.030., BMC 38.340.040., 38.340.050., and in the design guidelines for the neighborhood conservation overlay district (NCOD Guidelines)4. Appellant asks the Commission to refer to the exerted provisions of code provided to clearly understand how these provisions read together. There is no conflict between the AHO and the standards for certificates of appropriateness in the NCOD; the applicant reduced the Guthrie II’s height to 4-stories to comply with the site’s R-5 base zoning and does not utilize deep incentives in the AHO with regard to height. Form, Mass, and Scale, and Compliance with 38.340.040 and 38.350.050 Error: The Commission Memo argues that 38.340.040 does not apply to the Guthrie II, because the Guthrie II proposes demolition, not alteration5; alteration encompasses only repair, addition, or reuse, and not demolition. The Memo cites to page 5 of the NCOD Guidelines for support. This conclusion is erroneous. While page 5 discusses alterations within the context of historical significance, page 9 is regulatory and states: “All proposed alterations (including demolition) to structures and sites within the are subject to design review.” Despite City Staff’s insistence that it has reviewed the NCOD guidelines, it is clear from the second paragraph in the Design Review section at issue that “alterations (includ[e] demolition).” Page 10 further states: “What if I want to demolish, or move a building on my property? The demolition and movement of structures within the NCOD are considered an alteration and therefore are also subject to review.” Page 16 of the NCOD Guidelines puts the issue to bed: “A Certificate of Appropriateness . . . is a certification that the design of a 4 There is no inherent conflict between the base-zoning and additional NCOD overlay zoning. However, even if there were, BMC 38.100.050.A. states: “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.” 5 Oddly, given the Commission Memo’s argument, page 33 of the Staff Report seems to indicate the Director’s understanding that BMC 38.340.040 applies: “This project adheres to section 38.340.040 and complies with application requirements.” Where the Commission Memo alleges new argument, the Staff Report controls. The Staff Report memorializes the decision which Appellant appeals. project is appropriate within the neighborhood or area in which it is located. It is required for any alteration, demolition or new construction in the Neighborhood Conservation Overlay District.” BMC 38.340.040, which requires a “certificate of appropriateness before any and all alterations [may be] undertaken upon any structure in the NCOD,” applies to the Guthrie II. Additional support that BMC 38.340.040 applies to the Guthrie II is found in the following provisions of code: BMC 38.340.010. - Intent and purpose. A. All new construction, alterations to existing structures, movement of structures into or out of the neighborhood conservation overlay district, hereinafter referred to as the conservation district, or demolition of structures by any means or process will be subject to design review unless specifically exempted. The Code provision City Staff argue does not apply to demolition refers to demolition. BMC 38.340.040.A.1. “No building, demolition, sign or moving permit may be issued within the conservation district until a certificate of appropriateness has been issued by the appropriate review authority, and until final action on the proposal has been taken.” Error: Appellant and City Staff agree that the Guthrie II must comply with BMC 38.340.050, excerpted below for convenience. However, City Staff argue that because alterations do not encompass demolition, BMC 38.340.050.A. and B. are inapplicable; the Commission Memo states subsection B does not “apply since those guidelines are used to consider compatibility with proposed alterations [as opposed to demolition] of the original design features.” City Staff therefore determined it did not need to focus on the Guthrie II’s height in its consideration of appropriate design guidelines and compatibility with neighboring structures and properties. This conclusion is erroneous. BMC 38.340.050.B.1. and 5. certainly apply.6 BMC Sec. 38.340.050. - Standards for certificates of appropriateness. B. Architectural appearance design guidelines used to consider the appropriateness and compatibility of proposed alterations [“including demolition”] with original design features of subject structures or properties, and with neighboring structures and properties, must focus upon the following: 1. Height; 2. Proportions of doors and windows; 3. Relationship of building masses and spaces; 4. Roof shape; 5. Scale; [. . .] Again, City Staff’s reasoning for excluding “demolition” from “alteration” has been debunked based on review of the plain language used in the NCOD Guidelines and Code— “demolition” is “considered an alteration.” See NCOD Guidelines, pages 5, 10, 16. Error: With regard to height and scale, the only analysis proffered in the Staff Report and Commission Memo is that the Guthrie II is one story less than the Guthrie I and that it meets the 6 In denying the Guthrie I, Commissioners cited BMC 38.340.050.B.1. and 5. Supporting the Commission’s denial of the project. R-5 base-zoning. The Guthrie II’s location within the NCOD zoning district and the compulsory NCOD guidelines require additional height restrictions, not even considered by City Staff in the Staff Report (“the front wall of a new structure should not exceed two stories in height”). BMC 38.340.050.D. states, “when applying the standards of subsection [B—appropriate and compatible height and scale], the review authority must be guided by the design guidelines for the neighborhood conservation overlay district” (emphasis added). Chapter 3 of the NCOD Guidelines “applies to new infill projects in the residential neighborhoods” in the NCOD—like the Guthrie, zoned R-5 within the NCOD. Pages 58 and 60- 64 (excerpted below) discuss “Building Mass and Scale” and “Multi-household” guidelines for new construction in residential areas within the NCOD. The Staff Report’s reference to Chapter 3: Building, Mass, and Scale seems to explain that the Guthrie II’s height, mass, and scale is incompatible with surrounding structures, yet abruptly finds compatibility: B. Building Mass and Scale: New buildings should maintain an established scale as seen throughout the neighborhood. While new buildings and additions are anticipated to be larger, the new construction should not be so dramatically greater than the established context. The location of this property is in an area that has a variety of uses and scales of building including single-household residences to the north, a church to the east that exceeds one story in height, a two story multi-household building to the south, and a single-story motel to the west. 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. While the proposed building will be four stories tall, the footprint is 13,750 square feet and has less linear street frontage than the existing building to minimize the overall scale and mass of the building. E. Multi-Household: Minimize the perceived scale of a multi-household building so that is compatible with the context of the neighborhood. The proposed design incorporates building materials, modulation details, and window and door openings to minimize the perceived scale of the building. It is also setback further from the street and incorporates a prominent entrance that faces the street, breaks up the building, and engages with pedestrians. The overall building height is 47 feet which is lower than the 50-foot maximum allowed under the R-5 zone. P. 35. The Commission Memo attempts to correct this oversight, explaining that while Chapter 3 offers the most relevant guidance for the Guthrie II, it is “ill-suited for the present situation proposing redevelopment of a larger infill site[. …] This illustrates the outdated nature of the NCOD Guidelines.” This should signal arbitrary and capricious decision-making for the Commission. Rules do not exist to be bent around projects; the Guthrie II is ill-suited for the location, because the approved project does not fit within the policy and range prescribed by the NCOD Guidelines, and not the other way around. It is clear that City Staff do not want new construction within the NCOD limited by the NCOD Guidelines, but until BMC 38.340.050.D. and the NCOD Guidelines are repealed pursuant to fair and transparent process, they are not outdated; they currently govern and guide new construction approvals within the NCOD pursuant to Code. While “the review authority must be guided by the [NCOD] design guidelines” pursuant to BMC 38.340.050.D., the Appellant agrees that the NCOD Guidelines present a guiding policy and a range of options for developers and the Development Director to consider. However, this flexibility DOES NOT authorize the Development Director to approve new construction that does not at all fit within that range of options. Error: The Guthrie II’s approval was unlawful per BMC 38.340.050., because approval of the 4-story 91-unit Guthrie II in a residential NCOD neighborhood was not guided by the policy and does not fit within the range of appropriate and compatible development outlined by Chapter 3 of the NCOD Guidelines. The Guthrie II does not substantially comply with the NCOD Guidelines or BMC 38.340.050. Non-compliance with the COA review criteria set forth in BMC 38.340.050 means the Director’s CCOA and DEM approvals were in error and unlawful. The site plan review criteria set forth in BMC 38.230.100. are likewise unmet, with specific reference to BMC 38.230.100.A.5.c. The Commission should overturn the Guthrie II for error. The approved Guthrie II is more in line with mass and scale guidelines for commercial character areas, and the B-3 Commercial Character Area, despite the project site’s residential zoning. Approval was therefore in error. The Commission Memo makes no reference to a particular guideline guiding the Development Director’s Guthrie II approval, yet insists the decision was “guided.” What specific provision of the pages excerpted above guided the design and approval of the Guthrie II? Why is it so dramatically greater in scale than anything around it if the guidelines were employed? Rather than provide answers, the Commission Memo explains why the NCOD Guidelines did not guide the approval decision. Compatibility and Compliance with BMC 38.340.050 and BMC 38.230.100.A.7.a. The Commission Memo spends ample effort criticizing the Appellant for examining compatibility only in relation to “adjacent buildings.” The Appellant wishes to remind the Commission that the Development Director, and not the Appellant, is tasked with approval or denial. The Appellant points to the Staff Report’s and Commission Memo’s compatibility analysis for what it does not do—it does not consider compatibility with adjacent structures and with the residential neighborhood in which it sits. Certainly, the following regulatory language directs the Development Director to consider whether the Guthrie II is compatible with adjacent structures and the residential neighborhoods north, east, and south of the project site: BMC Sec. 38.340.050.C-D. - Standards for certificates of appropriateness. C. Contemporary, non-period and innovative design of new structures . . . is encouraged . . . when such design is compatible with the foregoing elements of the structure and surrounding structures. D. . . . 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. BMC 38.230.100.A.7. Site Plan Review Criteria: Conformance with the project design provisions of article 5, including: a. Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods and other approved development relative to architectural design, building mass, neighborhood identity, landscaping, historical character, orientation of buildings on the site and visual integration. The NCOD Guidelines specify the standard for determining compatibility. Specifically, Chapter 3 (page 58), which details the guidelines applicable to the Guthrie II regarding mass and scale, states: “While new buildings and additions are anticipated that may be larger than many of the earlier structures, this new construction should not be so dramatically greater in scale than the established context that the visual continuity of the neighborhood would be compromised.” Appendix B of the NCOD Guidelines defines context as follows: Context. In many cases, the reader is instructed to relate to the context of the project area. The “context” relates to those properties and structures adjacent to, and within the same block as, the proposed project. The Development Director’s analysis regarding compatibility and compliance with BMC Sec. 38.340.050.C-D., was not guided by the “context of the project area” as directed by the NCOD Guidelines. The reason for City Staff’s error—failure to consider properties and structures adjacent to, and within the same block, as the Guthrie, is because the Guthrie II is not compatible with its surrounding structures. City Staff must venture beyond the residential NCOD neighborhood, in which the Guthrie sits, to find compatibility. The Appellant can understand balancing interests and compatibility in City Staff’s analysis. However, it is error for City Staff to exclude adjacent structures and the residential neighborhoods in which the Guthrie II sits in favor of analyzing compatibility with structures located in the MURD to satisfy BMC 38.340.050. and BMC 38.230.100.A.7.a. The following excerpts from the Staff Report’s compatibility analysis demonstrate Appellant’s point: In the B-2M zone district (which directly abuts the subject property along its western edge), buildings designed for non-residential or mixed use can build up to five stories or 60 feet, whichever is less, provided the top floor of the building has a step back of 30 feet. For buildings designed for solely residential use, the allowed height is four stories or 50 feet, whichever is less. The R-5 district allows for a building height of 50-60 feet depending on roof pitch. The adjacency of this property to commercial services and various employers accommodates more dense residential dwelling units in a geographically compact, mixed-use area that is in accordance with the R-5 zone district and Urban Renewal Plan. It also contributes to the mixture of housing types available in this area because it provides medium scale multi-household housing in addition to the already existing smaller scale apartment buildings and single household detached dwellings. P. 21-22. 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 7th Avenue and the Midtown Urban Renewal District. 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. P. 29. While the existing structure reflects more of the existing residential neighborhood Postwar phase of Bozeman’s development, the rezoning of the property to R-5 in 2016 was intended to support the Midtown Urban Renewal District which was created with a deliberate emphasis on focused redevelopment through methods such as increased building density, the construction of urban and dense housing projects, improved multimodal transportation, and promoted an increased pedestrian environment. The design of this building incorporates components of the Midtown Urban Renewal District such as exposed concrete, transparency, and increased density since the future development of the Midtown Urban Renewal District is expected to be 4-5 stories, while also utilizing brick and wood to reflect the materials that are used in the surrounding neighborhood. P. 34. Error: There is no discussion of the Guthrie II’s height, mass, and scale compatibility with the neighboring single-story residences, church, single story motel, or 2-story apartment. The Commission Memo cites to these same pages from the Staff Report as evidence of the “balancing” and “[c]onsideration of [compatibility with] both residential neighborhoods to the east and the commercial district to the west” done by the Development Director. The Commission Memo’s and the Staff Report’s analysis is ingenuine and serves the purpose of checking the compatibility box when the Guthrie II is plainly not compatible with the residential neighborhood in which it sits per BMC Sec. 38.340.050.C-D and BMC 38.230.100.A.7.a. III. CITY STAFF’S POLICY DETERMINATION THAT THE NCOD GUIDELINES ARE NO LONGER REGULATORY IS UNLAWFUL. The Commission Memo states: “The NCOD Guidelines are not regulatory or prescriptive; instead they define a range of appropriate responses to a variety of specific design issues.” This is not true. The NCOD is a zoning district governed by provisions of Code that give the NCOD Guidelines regulatory teeth. See BMC 38.340.050.D. The Appellant offers this counterpoint: The NCOD Guidelines are regulatory and prescriptive, and they define a range of appropriate responses to a variety of specific design issues. This Commission does not need to defer to the Development Director’s novel interpretation, because the plain language used in the BMC is clear and unambiguous. Section 38.110.010(B) affirmatively states that the 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 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 Commission Memo argues that the Development Director’s novel interpretation— the NCOD Guidelines are not compulsory—is supported at various places in the Code. This argument and the citations provided are unavailing. Like the Staff Report, the Commission Memo incorrectly assumes the words “guidelines” and “guided” mean non-compulsory. Again, the operative word in “must be guided” is “must,” as opposed to “may.” The flexibility afforded to the Director is not whether the Director may choose when to be guided or not be guided by the NCOD Guidelines. The flexibility exists in that the NCOD Guidelines allow a range of options for new construction within the NCOD. The legal conclusion that the NCOD Guidelines are not compulsory is incorrect. City Staff cannot make a policy decision that the regulatory NCOD Guidelines are non-compulsory. The City may repeal the provisions of Code that give the NCOD Guidelines teeth and update or annul the NCOD Guidelines, but until such action is taken by fair and transparent City processes, the NCOD Guidelines are compulsory. 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 Commission Memo states that the Appellant has provided no specific example or information in support of this allegation. To this end, the Appellant requests the Commission to ask City Staff: has City Staff previously denied or conditioned applications for alterations within the NCOD non-compliant with NCOD Guidelines prior to this application?; how many property owners in the NCOD have had applications approved, denied, or conditioned based on compliance or non-compliance with NCOD Guidelines?; when did City Staff decide as a matter of policy that the NCOD Guidelines were no longer compulsory? ILLEGAL SPOT ZONING A theme emerges when considering City Staff’s findings and conclusions regarding the applicability of BMC 38.400.060.B.4. (LOS C), and the NCOD guidelines to HomeBase’s Guthrie II project. The Code demands compliance and ensures that all applicants are treated equally by City Staff. Here, City Staff has made it a policy decision that provisions of the BMC do not apply to the Guthrie II. This decision-making is erroneous, unlawful, and arbitrary and capricious. Comprehensively considered, the Guthrie’s approval decisions amount to special or experimental legislation, or spot zoning, poorly tailored to resolving the City’s affordability crisis while benefitting the Developer at the expense of the Appellant, homeowners in the NCOD, those who need affordable housing, and the greater public. Determining the NCOD guidelines are non- compulsory is in essence a zoning decision, removing the Guthrie property from the regulatory mechanism—the NCOD guidelines—governing the NCOD. Spot zoning is generally illegal where the City’s decision to rezone meets the following three factors: (1) the proposed use is significantly different from the prevailing use in the area; (2) the area in which the requested use is to apply is rather small—this factor is “concerned more with the number of separate landowners benefited by the requested change”; and (3) the change is special legislation designed to benefit only one or a few landowners at the expense of the surrounding landowners or the general public. Little v. Board of County Com’rs of Flathead County, 631 P.2d 1282, 1289, 193 Mont. 334, 346 (1981); Greater Yellowstone Coal. v. Bd. Of Com’rs, 2001 MT 99; 25 P.3d 168, 305 Mont. 232. City Staff's decision here meets all three factors. Like the illegal spot-zoning at issue in Little, and Greater Yellowstone Coal., City Staff’s illegal spot zoning here conflicts with prevailing land uses at the expense of the general public and those with property within the NCOD, to whom the NCOD guidelines apply in a compulsory manner. City Staff allows different rules to apply for this Developer. STANDING As stated by BMC 38.250.030.A, and the Commission Memo, only “aggrieved persons” may appeal an administrative decision. If the Appellant group does not include “aggrieved persons,” then the Commission’s consideration of the appeal ends. The Commission only reaches the merits of the Appellant’s appeal if the Commission determines the members of Bozeman Home Advocacy Group are “aggrieved persons.” The members of the Appellant group will be available to respond to the Commission’s questions regarding particularized harm from the Guthrie’s development at the hearing, in addition to that asserted in the appeal. Where the Commission makes conclusions on the merits of the appeal, the Appellant objects to the recommended motion preserving standing as a defense the City may raise on appeal, and requests the Commission to amend or vote against the motion. THE APPEAL FEE The Appellant does not challenge the fact that the City may exact an appeal fee, but challenges the amount of the fee exacted—$2,760. The appeal fee is too high and serves as a barrier systematically dissuading appeal. This, the cost-barrier to appeal, is unconstitutional. Paired with the procedural irregularities discussed above, and in the appeal, City Staff’s implementation of the appeal process, including the cost to appeal, was constitutionally flawed and unfair to appellants. The Commission Memo buries the cost exacted—$2,760—and responds by citing that it has the authority to exact a fee. The Appeal submitted is, in fairness, 29 pages—not 454 pages as asserted by the Commission Memo. The exhibits attached largely constitute the established record, organized on appeal for the Commission’s convenience. Likewise, $2,760 is not “an equitable best fit” as alleged by the Commission Memo. The Commission is empowered to consider whether City Staff’s adherence to and application of the process adopted by the Commission affords the Appellant constitutional due process on appeal. The City further argues that the Appellant is precluded from raising its constitutional claims with specific regard to the constitutionality of the appeal fee, because this argument was not raised during the public comment period (December 6, 2024, to December 31, 2024) preceding the decisions approving development of the Guthrie. City Staff puts the cart before the horse. The public should not be expected to give public comment about the appeal process before a decision is appealed. The Commission Memo avers that public comment regarding the appeal (and appeal fee) extends from March 3, 2025, to April 1, 2025. The public has since submitted comment, including that the appeal fee and City Staff’s implementation of the appeal process was unconstitutional. As such, the Appellant objects to City Staff’s conclusion that Appellant’s constitutional claims were not raised during public comment. The Appellant likewise objects to the recommended motion preserving issue preclusion as a defense the City may raise on appeal, and requests the Commission to amend or vote against the motion. CONCLUSION The Guthrie II does not meet the criteria for site plan review set forth in The Guthrie II does not meet the criteria for site plan review set forth in BMC 38.230.100. The Director’s approval of the Site Plan was in error. The Guthrie II does not meet the COA design review criteria set forth in BMC 38.340.050. The Director’s approval of the COA was in error. The Guthrie II does not meet the review criteria for demolition in the NCOD set forth in BMC 38.340.090. The Director’s approval of the Demolition was in error. The Commission should not uphold decisions that reflect error. REQUESTS FOR RELIEF: 1. For the foregoing reasons, the Appellant requests the Commission to overturn the Development Director’s decisions approving development of the Guthrie II for error pursuant to § 26-2-323(1)(a), MCA. 2. Pursuant to your review authority, the Appellant respectfully requests the Commission to reimburse Appellant its appeal fee minus a reasonable administrative review fee. 3. Should the Commission uphold the City Director of Community Development’s decisions to approve the Guthrie’s Site Plan and CCOA, Appellant requests the Commission to maintain and enforce the stay on demolition of the existing building such that Appellant may have a reasonable time to consider district court appeal. 4. To protect Appellant’s right to know and participate in the City’s decision-making process, the Appellant requests the Commission to make written findings memorializing its decision on appeal. Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 21 of 38 residential spaces should provide an interesting pedestrian experience with quality urban design for buildings, sites, and open spaces. This category is appropriate near commercial centers. Larger areas should be well served by multimodal transportation routes. Multi-unit, higher density, urban development is expected. Any development within this category should have a well-integrated transportation and open space network that encourages pedestrian activity and provides ready access within and adjacent development. As noted above in the analysis for the various goals articulated in the Bozeman Community Plan 2020, this application conforms to its designation in a Residential Mixed-Use area on the Future Land Use Map of the Growth Policy. It proposes a multi-unit, high density apartment building with a mix of affordable housing units and market rate units. The height and mass of the building, combined with design techniques such as facade modulation, articulation and variations in material and color, as well as pedestrian-oriented features on the ground floor contribute to a complete and interesting streetscape. It is expected that Midtown will continue to develop with high density residential uses and urban development, as envisioned in the Community Plan. The proposal is an infill project that is well-integrated into existing infrastructure, including multimodal transportation options because it is supported by nearby Streamline bus service and is within walking distance of many commercial services and social amenities, including a school, church, and the fairgrounds. The project has access to nearby open spaces, such as Westlake Park, Beall Park, and Centennial Park. The subject property is zoned R-5, Residential Mixed-Use High-Density District which is an implementing district for the Residential Mixed-Use future land use designation. Per 38.300.100, “The intent of the R-5 residential mixed-use high-density district is to provide for high-density residential development through a variety of compatible housing types and residentially supportive commercial uses in a geographically compact, walkable area to serve the varying needs of the community's residents. These purposes are accomplished by: 1. Providing for a mixture of housing types, including single and multi-household dwellings to serve the varying needs of the community's residents. 2. Allowing offices and small-scale retail and restaurants as secondary uses provided special standards are met. Use of this zone is appropriate for areas adjacent to mixed-use districts and/or served by transit to accommodate a higher density of residents near jobs and services.” Apartments are an allowed use in the R-5 zone district. The proposed project supports the R-5 residential mixed-use high- density district because it is a high-density residential development located in a walkable area adjacent to a variety of services and jobs within the Midtown Urban Renewal District. The project is consistent with City Commission land use and policy decisions regarding the development of the area and the growth policy. The Midtown Urban Renewal District was created in 2006 under ordinance number 1862 as the North Seventh Urban Renewal District to remedy the conditions of blight found in the area through redevelopment. In 2015, it was expanded under ordinance number 1925 for purposes of furthering its efforts to revitalize the commercial area and surrounding neighborhoods and named the Midtown Urban Renewal District. Shortly thereafter, the B-2M zone district and R-5 zone district were created by Ordinance 1942 to provide higher density buildings built near the street, to encourage ground floor commercial uses, and to reduce parking minimums. The Bozeman Midtown Urban Renewal District Plan was adopted in 2015 with a deliberate emphasis on focused redevelopment through methods such as increased building density, the construction of urban and dense housing projects, improved multimodal transportation, and promoted a pedestrian oriented environment. As noted above, the growth policy supports infill and redevelopment consistent with adopted standards. The Midtown Action Plan was adopted in 2017 to implement the Urban Renewal District Plan. Since the creation of this urban renewal district, there has been a significant amount of redevelopment along North 7th and within the B-2M zone district including commercial and mixed-use buildings that range from 2-4 stories tall with more active uses on the ground floor and residential uses above. This is also consistent with the adopted future land use designations and growth policy goals and objectives. “Construction will continue to vary as development occurs and where early phases of multi-story buildings is currently taking place, eventually projects of mid-rise or five story buildings will emerge” (pg. 13, Midtown Plan). In the B-2M zone district (which directly abuts the subject property along its western edge), buildings designed for non-residential or mixed use can build up to five stories or 60 feet, whichever is less, provided the top floor of the building has a step back of 30 feet. Exhibit 1: The Commission Memo cites these pages of the Staff Report to evidence the Development Director considered compatibility with surrounding structures, as required by BMC 38.340.050 and the NCOD Guidelines. The pages are attached for convenience. Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 22 of 38 For buildings designed for solely residential use, the allowed height is four stories or 50 feet, whichever is less. The R-5 district allows for a building height of 50-60 feet depending on roof pitch. The adjacency of this property to commercial services and various employers accommodates more dense residential dwelling units in a geographically compact, mixed-use area that is in accordance with the R-5 zone district and Urban Renewal Plan. It also contributes to the mixture of housing types available in this area because it provides medium scale multi-household housing in addition to the already existing smaller scale apartment buildings and single household detached dwellings. 2. Conformance with Article 1 – All other applicable laws, ordinances, and regulations (38.100.080) Condominium ownership NA Comments: The project proposes rental uses. Any change to allow individual unit ownership would require a separate condominium review application. 3. Conformance with Article 2, including the cessation of any current violations (38.200.160) Meets Code? Current Violations None NA Comments: There are no current violations on the subject property. 4. Conformance with Article 2 – Submittal material (38.220) requirements and plan review for applicable permit types (38.230) Meets Code? Site Plan & Certificate of Appropriateness (COA) Yes Submittal requirements 38.220.100 Yes Phasing of development 38.230.020.B No. of phases: 1 Yes Comments: The site plan and COA criteria are met with this project. The proposal conforms to zoning provisions, community design provisions, and project design provisions. See analysis below for how the required standard of each article is met. Concurrent Construction has been requested by the applicant to allow simultaneous construction of the proposed building and required supporting infrastructure. The required infrastructure improvements include adjacent improvements that are subject to BMC 38.270.030.C. The requirements of this section, including City and DEQ infrastructure review, approval from the City Fire Marshall, execution of an Irrevocable Offer of Dedication, and an acceptable concurrent construction plan, must be met prior to a building permit being issued for the development as required by Code Provision 9. 5. Conformance with Article 3 - Zoning Provisions (38.300) Meets Code? Permitted uses 38.310 Apartments Yes Form and intensity standards 38.320 Zoning: R-5 Setbacks (feet) Structures Parking / Loading Yes Front 15’ Block frontage: Landscaped and Special Residential, see Section 7a Rear 20’ 5’ Side 5’ 5’ Alley 5’ NA Comments: Apartments are a permitted use in the R-5 zone district. The proposed building meets setback requirements and has two front setbacks since it is located on a corner lot. The building is set back 19 feet from West Villard Street and 15 feet from North 5th Avenue. Block frontage standards also apply and dictate setback standards for parking and ground floor residential. See section 7a for further analysis. Lot coverage 33% Allowed: No maximum Yes Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 28 of 38 neighborhood, and other approved development and produce an efficient, functionally organized and cohesive development Relationship to adjacent properties 38.520.030 Yes Non-motorized circulation and design systems to enhance convenience and safety across parking lots and streets, including, but not limited to paving patterns, pathway design, landscaping, and lighting 38.520.040 Yes Comments: The subject property is designed to incorporate circulation and amenities for pedestrians. It is connected to sidewalks along West Villard Street and North 5th Avenue. Ground level features are integrated into the development for pedestrians. There are no balconies proposed on the upper floors. Light and air access standards are met, meaning that the units that face the side and rear property line have adequate solar access since the building is set back more than 15 feet from the west and south property line. Design of vehicular circulation systems to assure that vehicles can move safely and easily both within the site and between properties and activities within the general community 38.520.050 Yes Internal roadway design 38.520.050.D NA Comments: Vehicular access to the property is via North 5th Avenue. Site access was reviewed by staff and determined to be in compliance with the applicable code provisions. See section 7d below for parking lot requirements. On-site open space 38.520.060 Yes Total required 9750 square feet (100 sf for studio and one-bedroom, 150 sf for two-bedroom) Yes Total provided 9798 square feet Yes Comments: Open space is provided through common outdoor space, interior amenities, and private patios. There are three common outdoor areas, one located on the corner of West Villard Street and 5th, one along the west side of the property, and one on the southeast side of the building. It equates to 5373 square feet. All shared open space is centrally located and averages 15 feet in width. These areas include landscaping, seating, lighting, grill space, and other pedestrian amenities. Private patio spaces are located on the ground level, each 100 square feet and equate to 1,641 square feet. All patios have a dimension no less than six feet. All multi-household development with ground level private spaces require some sort of separation between the private/public space. The patios on the north and east side are enclosed by hedges that are at least 32 inches tall. The patios on the west side are enclosed using a decorative fence that is at least 32 inches tall. Interior amenities on level one includes an exercise room and lounge/lobby area. All areas provide seating and other features to be used by residents. Level three includes a lounge area that is central to the residents. Interior amenities equate to 2785 square feet. Level two and four include laundry amenities, which do not count towards open space. Location and design of service areas and mechanical equipment 38.520.070 Yes Comments: Trash and recycling containers are located inside the building and are moved to tip pad for collection on pick up day. Mechanical screening that is viewable from the sidewalk is wrapped in vinyl wrapping so that it blends into the building’s material. 7c. Conformance with Article 5 – Project Design: Building Design (38.530) Meets Code? Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods and other approved development 38.530.030 Yes Building massing and articulation 38.530.040 Yes Building details, materials, and blank wall treatments 38.530.050-070 Yes, exemption from building detail requirements per affordable housing incentives Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 29 of 38 7d. Conformance with Article 5 – Parking (38.540) Meets Code? Parking requirements 38.540.050 Exempt per affordable housing incentives Yes Parking requirements residential 38.540.050.A.1 Exempt per affordable housing incentives Reductions residential 38.540.050.A.1.b NA Parking requirements nonresidential 38.540.050.A.2 NA Reductions nonresidential 38.540.050.A.2.c NA Provided off-street 28 Provided on-street 8 Bicycle parking requirements 38.540.050.A.4 11 Yes Provided bicycle parking 97 Yes Comments: Per the deep incentives for affordable housing, there is no minimum on-site parking requirement. The project proposes 36 vehicle parking spaces that meet stall, aisle, and driveway design requirements. There are 7 compact parking spaces provided on the site, which meets the compact parking standard that a maximum of 25% of the provided parking spaces, or 9 spaces, may be compact only parking spots. There are five parking spaces along West Villard and three along North 5th Avenue. The project provides a dedicated on street parking space for loading and package delivery along North 5th Avenue, which is not required by code. Bicycle parking standards apply and are not exempt with the affordable housing incentives. The number of bicycle parking spaces required is equivalent to ten percent of the number of required parking stalls. If this project were not using the affordable housing incentives, 104 parking spaces would be required. Using that number as a basis, 10% equals 11 required bicycle spaces . The project exceeds this standard by providing 97 bicycle spaces including 61 indoor and 36 outdoor bicycle parking spaces. Loading and unloading area requirements 38.540.080 NA First berth – minimum 70 feet length, 12 feet in width, 14 feet in height NA Additional berth – minimum 45 feet length NA Comments: NA 7e. Conformance with Article 5 – Landscaping (38.550) Meets Code? Mandatory landscaping requirements 38.550.050 Yes Drought tolerant species 75% required Yes Parking lot landscaping Yes Additional screening NA Comments: The project only utilizes the deep incentives available through division 38.380 to be exempt from building detail standards as outlined in 38.530.050. The windows on the south façade along the side property line do not incorporate trim or other design treatment around the windows. Façade articulation for residential buildings must include three features every 30 feet. The project uses windows, entries, change in materials, and patio fencing to articulate the building. For blank wall treatments, any wall that has a horizontal length greater than 15 feet and a height of over 10 feet must include a window, door, or some sort of other blank wall treatment. The east, north, or south elevations do not have any area that exceeds these dimensions. The west elevation where there isn’t a window or door incorporates landscaping along the ground level and then material paneling on the upper levels to mitigate for blank walls. The proposed development uses concrete, fiber cement, wood, and brick which are building materials that meet standards. 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 7th Avenue and the Midtown Urban Renewal District. 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 Midtown Urban Renewal District. It also supports a mix of different housing types that promote a walkable neighborhood. Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 33 of 38 Comments: Based on the location of the project being in the Neighborhood Conservation Overlay District (NCOD), it is subject to review under Section 38.340 of the Unified Development Code. Per 38.340.010, it is the NCOD’s intent is to support preservation, but also accommodate growth and development in a way that supports both zone district standards and neighborhood character. The NCOD was created in 1991 to recognize the historic core of the Bozeman community that makes up most of Bozeman’s designated historic districts and many individual National Register landmarks. This boundary was chosen based on the 1954 census of Bozeman city limits in which a comprehensive architectural inventory of more than 3,000 properties were surveyed. This application proposes to demolish a historic structure (per definition in 38.700.090) and replace it with a four-story multi- unit building. The existing structure is not individually eligible for listing on the State or National Register of Historic Places or part of any existing historic district, but it is eligible as a contributing building to a potential historic district. Per 38.340.010.C, “New construction will be invited and encouraged provided primary emphasis is given to the preservation of existing buildings and further provided the design of such new space enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area. Contemporary design will be encouraged, provided it is in keeping with the above-stated criteria, as an acknowledged fact of the continuing developmental pattern of a dynamic, changing community.” The applicant submitted two economic analyses regarding the feasibility of rehab and reuse of the existing structure, which found that it could not be rehabbed in a way to make it economically viable. Section 38.340.090.C addresses demolition of a historic structure and the analysis is outlined below. This project adheres to section 38.340.040 and complies with application requirements. The Development Review Committee and administrative design review staff reviewed the project and finds that the application complies with the certificate of appropriateness standards. The project adheres to Section 38.340.050, Standards for Certificate of Appropriateness. Section 38.340.050.A does not apply because the Secretary of the Interior’s Standards does not speak to new construction and because the property is not located within a historic district nor is the structure on the National Register. Nor does subsection B apply since those guidelines are used to consider compatibility with proposed alterations of the original design features. Subsection C states that contemporary, non-period and innovative design of new structures and additions to existing structures is encouraged when such new construction or additions do not destroy significant historical, cultural or architectural structures or their components and when such design is compatible with the foregoing elements of the structure and surrounding structures. The structure is considered contributing to a potential historic district, although no application to designate a historic district in this area has been made. As such, the application proposes a contemporary design of a new structure by incorporating materials such as brick and wood to reflect the materials that are used in the surrounding neighborhood while also designing the building in a contemporary manner. The building is set back from the street in a manner that both meets the R-5 zone district and matches building setbacks in the adjacent residential neighborhood. Section 38.340.050.D states that the review authority must be guided by the Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District. The guidelines were created to provide guidance on how to apply design review to different properties. Those structures that have National Register historic significance or are located within a National Historic District have stricter guidelines. A property that isn’t individually listed or is outside of a Nationally Registered Historic District is subject to more general guidelines. The purpose of the NCOD Design Guidelines is to apply design guidelines to all properties within the NCOD as it relates to rehabilitation for historic properties, guidelines for residential character areas, commercial character areas, and district specific guidelines. Beside the addition of Chapter 4-B, Guidelines for the B-3 Commercial Character Area, which are not applicable to this project, these guidelines have not been updated since 2006. Within the Guidelines, there is very little guidance on how to manage higher density and mixed-use development outside of the Main Street/B-3 area. The prevailing requirements regarding the design of the building and the compatibility to the surrounding neighborhood comes from BMC section 38.340.050 along with zone district form and intensity standards (38.320) for the R-5 zone district and Article 5, Project Design. The full analysis on how the project meets zone district and article 5 standards can be found in sections 5 and section 7 above. Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 34 of 38 While the existing structure reflects more of the existing residential neighborhood Postwar phase of Bozeman’s development, the rezoning of the property to R-5 in 2016 was intended to support the Midtown Urban Renewal District which was created with a deliberate emphasis on focused redevelopment through methods such as increased building density, the construction of urban and dense housing projects, improved multimodal transportation, and promoted an increased pedestrian environment. The design of this building incorporates components of the Midtown Urban Renewal District such as exposed concrete, transparency, and increased density since the future development of the Midtown Urban Renewal District is expected to be 4-5 stories, while also utilizing brick and wood to reflect the materials that are used in the surrounding neighborhood. BMC section 38.340.050.D states that the review authority must be guided by the NCOD Design Guidelines. The following chapters were used when reviewing this project: Chapter 2, Design Guidelines for All Properties A. Topography: Site work should be planned to protect the assets of the existing topography. The project maintains the existing topography of the site. B. Street Patterns: Site a new building such that it is arranged on its site in a way similar to the historic buildings in the area. The building is setback 15’ from the property line like adjacent and nearby properties in the R-3 district. Open space and a prominent front porch are located along street frontages similar to nearby properties. C. Alleys: Alleys contribute into the character of the district and should be maintained. There is no alley adjacent this property. D. Streetscape: Maintain the traditional character of the streetscape. Currently, there is an attached sidewalk with no street trees. The project proposes to construct a detached sidewalk with a landscape buffer that is more consistent and traditional to the area. E. Landscape Design: Preserve and maintain trees and significant vegetation. All vegetation and trees will be removed but will be replaced with landscaping along the building and site perimeter. It appears that the landscaping that currently exists on the site does not have any additional historic significance to the site. Replacement vegetation meets standards outlined in the UDC. F. Building Form: A similarity of building forms should be used as those seen traditionally. Simple rectangular solids are appropriate as are flat roofs in commercial and transitions areas. 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. G. Solid-to-Void Ratio: Use a ratio of solid-to-void (wall-to-window) that is similar to the area. The ground floor along the North elevation that faces Villard incorporates glass and transparency that is similar to buildings within Midtown. The rest of the building incorporates traditional window and door openings that are seen throughout the neighborhood. H. Materials: Use building materials similar to those in the area. The building uses a mix of materials to complement with the neighboring properties including wood and brick that is depicted in the residential neighborhood and concrete, brick, and fiber cement which is commonly used in buildings along North 7th. I. Architectural Character: New construction should distinguish itself from historic structures. The building reflects that of new construction as it uses contemporary materials and an architectural style that doesn’t convey a false sense of historic period. J. Parking: Minimize the visual impact of surface parking. The parking lot is set behind the building to minimize the visual impact. There is a landscape buffer along 5th Avenue where it does abut a public sidewalk. K. Buffers: Storage and equipment areas should be mitigated with landscaping that may buffer or screen it. Landscape buffer is provided where parking fronts onto 5th Avenue. Service areas and utility equipment are either screened or wrapped to minimize visual impacts. L. Site Lighting: Lighting shall be shielded to prevent any off-site glare and standards should follow the UDC. The lighting proposed meets the standards outlined in the UDC. M. Utility and Service Areas: Service areas should be screened and away from major streets. Waste disposal is located internal to the building. Utility equipment is located internally to the site and concealed with an artistic wrap. Staff Report The Guthrie at 5th and Villard Site Plan/CCOA/Demo Application 24493 January 15, 2025 Page 35 of 38 Chapter 3, Design Guidelines for Residential Character Areas. A. Hierarchy of Public and Private Space: The hierarchy of public and private space should be maintained. The front yard maintains a similar 15-foot setback and incorporates landscaping, a walkway, and a front porch that highlights the primary entrance. B. Building Mass and Scale: New buildings should maintain an established scale as seen throughout the neighborhood. While new buildings and additions are anticipated to be larger, the new construction should not be so dramatically greater than the established context. The location of this property is in an area that has a variety of uses and scales of building including single-household residences to the north, a church to the east that exceeds one story in height, a two story multi-household building to the south, and a single-story motel to the west. 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. While the proposed building will be four stories tall, the footprint is 13,750 square feet and has less linear street frontage than the existing building to minimize the overall scale and mass of the building. C. Roof Form: A new building should have a basic roof form that is similar to those seen traditionally. This project proposes a flat roof, which is consistent with a portion of the existing building’s roofline on the site as well as other nearby buildings. D. Secondary Structures: Secondary structures should be subordinate in scale and maintained. There is no secondary structure proposed. E. Multi-Household: Minimize the perceived scale of a multi-household building so that is compatible with the context of the neighborhood. The proposed design incorporates building materials, modulation details, and window and door openings to minimize the perceived scale of the building. It is also setback further from the street and incorporates a prominent entrance that faces the street, breaks up the building, and engages with pedestrians. The overall building height is 47 feet which is lower than the 50-foot maximum allowed under the R-5 zone. F. Fences and Retaining Walls: Front yard fences and retaining walls along the front yard should be low in height. Fences and concrete walls that are along the front are less than 30” in height. BMC section 38.340.050.E requires that developments within the NCOD also must conform to other applicable development standards in Chapter 38. As noted above in the staff report, this application conforms to the development standards. Staff finds that the proposed project meets the standards outlined in 38.340.050 and the NCOD Design Guidelines. Review of demolition of historic structures or sites 38.340.080 Yes Historic Structure per 38.700.090 Yes Comments: The existing building is a two-story structure that was built in 1958 as a convalescent center. It remained a care center until 2022 and now is vacant. The proposed project is considered a historic structure since it is considered a contributing building to a potential historic district as outlined in the definitions provided in article 7 of the UDC. A historic structure is defined in BMC 38.700.090 as any building or structure that is: 1. Listed in the State or National Register of Historic Places; 2. Designated as a historic property under local or state designation law or survey; 3. Certified as a contributing resource within a National Register listed or locally designated historic district; or 4. Eligible, as determined by the City of Bozeman, to be listed on the National or State Register of Historic Places either individually or as a contributing building to an existing or potential historic district. The existing structure was surveyed in 2019-2020 as part of a larger effort done by the City to survey the B-2M zone district and the immediate surrounding area. This survey was conducted by Metcalf Archeological Consultants (Metcalf). The property lacks individual significance to be on the National Register of Historic Places under Criteria A, B, C, and D of the Secretary of Interior Standards. However, while not located within an existing historic district, it is considered to be a contributing structure to a potential historic district associated with the Postwar Expansion Phase and central Bozeman. Therefore, the building on this site is a historic structure because it is eligible to be listed on the National or State Register of Historic Places as a contributing building to a potential historic district. Companion Legal Framework for the Commission’s Consideration COMMISSION’S STATUTORY DUTY, APPROVAL DELEGATION, REVIEW AUTHORITY, AND STANDARD OF REVIEW ON APPEAL Section 76-2-301, MCA: Municipal zoning authorized. For the purpose of promoting health, safety, morals, or the general welfare of the community, the city or town council or other legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lot that may be occupied; the size of yards, courts, and other open spaces; the density of population; and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes. BMC Sec. 38.100.040. - Intent and purpose of chapter: A.The intent of this unified development chapter is to protect the public health, safety and general welfare; 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, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law. B. It is the purpose of these regulations to promote the public health, safety and general welfare, including the purposes for subdivision and zoning in MCA 76-1-102, 76-1-606, 76-2-304, 76-3- 102, and 76-3-501 as may be amended from time to time. Further, it is the purpose of these regulations to exercise to the fullest extent the authority of the city's Charter, utility, and all other powers. C. This chapter has been evaluated for compliance with the growth policy as part of the process to adopt this chapter, and has been found to comply with the growth policy. BMC Sec. 38.200.010.A-B. A. The city commission has the authority to review and require revisions to all development proposals subject to this chapter, and delegates that authority in certain circumstances as set forth below. The purpose of this review is 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. B. The community development director must, upon recommendation from the applicable advisory bodies approve, approve with conditions or deny all applications subject to this chapter . . . 2. Exception. The city commission may, by an affirmative, simple majority vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development application normally subject to the approval of the community development director. The vote must occur prior to the action of the community development director. BMC Sec. 38.250.030.J. J. Alternative 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. BMC Sec. 38.250.010.D.5. D. The city commission must hear and decide appeals of administrative decisions, variances and deviations, and requests for reasonable accommodation and must: 5. Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or of any standards adopted pursuant thereto. An aggrieved person may appeal the final decision of the community development director in the manner provided in this division 38.250. Section 76-2-323(1)(a), MCA. Powers of board of adjustment. (1) The board of adjustment shall have the following powers: (a) to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this part or of any ordinance adopted pursuant thereto; MANDATORY SITE PLAN REVIEW CRITERIA TRIGGERING MANDATORY COMPLIANCE WITH OVERLAY-ZONING STANDARDS BMC Sec. 38.230.010. - Introduction. A. All non-subdivision development proposals within the city will be subject to plan review . . . C. When a development is proposed within a neighborhood conservation overlay district or historic district . . . design review is required in conjunction with plan review per the authority in section 38.210.010. In such cases, additional submittal requirements and review procedures apply as outlined in section 38.220.090. BMC Sec. 38.230.100. – Site Plan review criteria. A. In considering applications for plan approval under this chapter, the review authority and advisory bodies must consider the following criteria. X1. Conformance to and consistency with the city’s adopted growth policy; 2. Conformance to this chapter, including the cessation of any current violations; 3. Conformance with all other applicable laws, ordinances and regulations; 4. Conformance with special review criteria for applicable permit type as specified in article 2; X 5. Conformance with the zoning provisions of article 3, including: a. Permitted uses (division 38.310); b. Form and intensity standards (division 38.320); X c. Applicable zone specific or overlay standards (divisions 38.330-340); d. General land use standards and requirements (division 38.350); e. Applicable supplemental use criteria (division 38.360); f. Wireless facilities and/or affordable housing provisions (divisions 38.370-380) if applicable; X 6. Conformance with the community design provisions of article 4, including: a. Transportation facilities and access (division 38.400), notably: (1) The impact of the proposal on the existing and anticipated traffic and parking conditions; (2) Pedestrian and vehicular ingress, egress and circulation, including: (a) Design of the pedestrian and vehicular circulation systems to assure that pedestrians and vehicles can move safely and easily both within the site and between properties and activities within the neighborhood area; (b) Non-automotive transportation and circulation systems design features to enhance convenience and safety across parking lots and streets, including, but not limited to, paving patterns, grade differences, landscaping and lighting; (c) Adequate connection and integration of the pedestrian and vehicular transportation systems to the systems in adjacent developments and general community; and (d) Dedication of right-of-way or easements necessary for streets and similar transportation facilities; (3) Loading and unloading areas; b. Community design and element provisions (division 38.410), notably: (1) Lot and block standards; (2) Provisions for utilities, including efficient public services and facilities; (3) Site surface drainage and stormwater control; (4) Grading; c. Park and recreational requirements (division 38.420); X 7. Conformance with the project design provisions of article 5, including: a. Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods and other approved development relative to architectural design, building mass, neighborhood identity, landscaping, historical character, orientation of buildings on the site and visual integration; b. Design and arrangement of the elements of the plan (e.g., buildings, circulation, open space and landscaping, etc.) so that activities are integrated with the organizational scheme of the community, neighborhood, and other approved development and produce an efficient, functionally organized and cohesive development; c. Design and arrangement of elements of the plan (e.g., buildings circulation, open space and landscaping, etc.) in harmony with the existing natural topography, natural water bodies and water courses, existing vegetation, and to contribute to the overall aesthetic quality of the site configuration; d. Landscaping, including the enhancement of buildings, the appearance of vehicular use, open space and pedestrian areas, and the preservation or replacement of natural vegetation; e. Open space, including: f. Lighting; g. Signage; X 8. Conformance with environmental and open space objectives set forth in articles 4— 6, including: a. The enhancement of the natural environment (e.g., through low impact development stormwater features or removal of inappropriate fill material); b. Watercourse and wetland protections and associated wildlife habitats; and c. If the development is adjacent to an existing or approved public park or public open space area, have provisions been made in the plan to avoid interfering with public access to and use of that area; 9. Conformance with the natural resource protection provisions of article 4 and article 6. 10. Other related matters, including relevant comment from affected parties. ZONE SPECIFIC PROVISIONS IN THE NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT (NCOD) AND HISTORIC PRESERVATION BMC Sec. 38.340.010. - Intent and purpose. A. All new construction, alterations to existing structures, movement of structures into or out of the neighborhood conservation overlay district, hereinafter referred to as the conservation district, or demolition of structures by any means or process will be subject to design review unless specifically exempted. B. Sections 38.340.010 through 38.340.130 define and set forth standards which apply to the conservation district. C. The intent and purpose of the conservation district designation is to stimulate the restoration and rehabilitation of structures, and all other elements contributing to the character and fabric of established residential neighborhoods and commercial or industrial areas. New construction will be invited and encouraged provided primary emphasis is given to the preservation of existing buildings and further provided the design of such new space enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area. Contemporary design will be encouraged, provided it is in keeping with the above-stated criteria, as an acknowledged fact of the continuing developmental pattern of a dynamic, changing community. D. In view of the fact that most of the area included within the boundaries of the conservation district was developed and built out prior to the adoption of zoning and contemporary subdivision regulations, the construction, development pattern and range of uses is highly diverse and may not be in compliance with conventional regulatory requirements. This part 1 recognizes that this diversity is a contributing element of the historic character of these neighborhoods or areas. The provisions of this part 1 must be applied in a manner that will encourage the protection and enhancement of the many diverse features for future generations. E. The conservation district boundary is largely coterminous with the area surveyed in the effort that led to the listing of nine historic districts and 40 additional landmark structures in the National Register of Historic Places, and includes the nine designated historic districts and 40 individual landmarks. The district boundary may be revised as additional cultural resource survey work is completed. This part 1 sets forth the means of protecting and enhancing the conservation district. F. It is further the purpose of the conservation district designation to protect and enhance neighborhoods or areas of significant land planning or architectural character, historic landmarks or other built or natural features for the educational, cultural, economic benefit or enjoyment of citizens of the city. It will be the policy and responsibility of the administrative entities of this part 1 to: 1. Protect, preserve, enhance and regulate historically significant structures, archaeological or cultural sites, and areas that: a. Are reminders of past eras, events or persons important in local, state or national history; b. Provide significant examples of land planning or architectural styles, or are landmarks in the history of land planning and architecture; c. Are unique or irreplaceable assets to the city and its neighborhoods; d. Provide examples of physical surroundings in which past generations lived; e. Represent and express the unique characteristics of small agricultural-based, western city developmental patterns; 2. Enhance property values through the stabilization of neighborhoods and areas of the city, increase economic and financial benefits to the city and its inhabitants, and promote tourist trade and interests; 3. Develop and maintain the appropriate environment for buildings, structures, sites and areas that reflect varied planning and architectural styles and distinguished phases of the city's history and prehistory; 4. Stimulate an enhancement of human life by developing educational and cultural dimensions, which foster the knowledge of the city's heritage, and cultivate civic pride in the accomplishments of the past; and 5. Seek to maintain and enhance the many private and public elements that are unique to the fabric, theme and character of each neighborhood and area, including, but not limited to: lighting, pathways, street trees, natural areas and other features that may, from time to time, be identified by the citizens and property owners' of neighborhoods, areas and subsections thereof. G. It is further the purpose of this article to protect historic structures and sites as defined in article 7 of this chapter by requiring any person seeking to demolish or move a historic structure or site to comply with section 38.230.080 whether or not the structure is located within the NCOD. BMC Sec. 38.340.040. - Certificate of appropriateness. A. A certificate of appropriateness is required before any and all alteration(s) other than those specifically exempted in subsection 1 of this section, or repair(s) as defined in section 38.700.160, are undertaken upon any structure in the conservation district. The review authority for certificates of appropriateness is established in division 38.200.010 of this chapter. Compliance with the terms of the final decision is required. The Montana Historical and Architectural Inventory Form must be reviewed and, if necessary, updated to reflect current conditions on the site, prior to the review of the proposal. Application procedures are as follows: 1. No building, demolition, sign or moving permit may be issued within the conservation district until a certificate of appropriateness has been issued by the appropriate review authority, and until final action on the proposal has been taken. 2. Application, review and public notice procedures for proposals located within the conservation district are set forth in division 38.230, Plan Review, and division 38.220, Applications and Noticing, of this chapter. If demolition or movement of structures or sites subject to the conservation district requirements is proposed, the procedures in section 38.340.080 apply. CCOA REVIEW CRITERIA WITHIN THE NCOD BMC Sec. 38.340.050. - Standards for certificates of appropriateness. A. All work performed in completion of an approved certificate of appropriateness must be in conformance with the most recent edition of the Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings, published by U.S. Department of the Interior, National Park Service, Cultural Resource Stewardship and Partnerships, Heritage Preservation Services, Washington, D.C. (available for review at the community development department). B. Architectural appearance design guidelines used to consider the appropriateness and compatibility of proposed alterations with original design features of subject structures or properties, and with neighboring structures and properties, must focus upon the following: 1. Height; 2. Proportions of doors and windows; 3. Relationship of building masses and spaces; 4. Roof shape; 5. Scale; [. . .] C. Contemporary, non-period and innovative design of new structures and additions to existing structures is encouraged when such new construction or additions do not destroy significant historical, cultural or architectural structures or their components and when such design is compatible with the foregoing elements of the structure and surrounding structures. D. When applying the standards of subsections A through C of this section, the review authority must be guided by the design guidelines for the neighborhood conservation overlay district. Application of the design guidelines may vary by property as explained in the introduction to the design guidelines. 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. DEMOLITION REVIEW CRITERIA BMC Sec. 38.340.090. - Demolition or movement of a historic structure or site. A. Certificate of appropriateness (COA) for demolition and subsequent development. Approval of the proposed subsequent development is required for all historic structures proposed for demolition and for the proposed movement of any structure or site. C. Criteria. The review authority must consider the following factors in evaluating applications for demolition or movement of a historic structure or site and subsequent redevelopment: 1. The property’s historic significance. 2. Whether 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. 3. Whether the subsequent development complies with section 38.340.050. 4. Whether the subsequent development includes construction of new building(s) unless the existing character of the area does not include buildings. 5. Subsequent development requires a building permit and does not include proposals which leave the site without building(s) or structure(s). Notwithstanding the above, for projects proposing the removal of a historic structure, which do not qualify for sketch plan review pursuant to section 38.230.070, the review authority may determine the proposed subsequent site development is more appropriate for the site based on the criteria in section 38.230.100. BMC Sec. 38.340.130. - Safe condition and good repair. Each property or structure located in the conservation district must be maintained in safe condition and good repair as required in sections 16.02.030 and 16.02.040. Nothing in this division 38.340 must be construed to prevent normal maintenance and repair of any exterior feature of any historic structure which does not involve a building permit. Interior arrangements or alterations to the interior of a building must not be subject to this requirement. KIRSA 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