HomeMy WebLinkAbout04-10-25 Public Comment - J. Amsden - Application No._ 24147; Re_ Second Supplemental ObjectionFrom:Valery Moreno
To:Bozeman Public Comment
Cc:John Amsden
Subject:[EXTERNAL]Application No.: 24147; Re: Second Supplemental Objection
Date:Thursday, April 10, 2025 2:16:27 PM
Attachments:image001.pngimage002.png25-0410 Amsden to City of Bozeman re BHOA Second Supplemental Objection.pdf
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Dear Sir/Madam:
Please see attached.
Sincerely,
Valery Moreno
Legal Assistant
610 Professional Drive
Bozeman, MT 59718
Phone: 406.586.8700
Fax: 406.586.8960
Beck, Amsden &
Stalpes pllc
610 Professional Drive
Bozeman, MT 59718
JOHN L. AMSDEN
PARTNER
Tel: 406-586-8700
Amsden@becklawyers.com
April 10, 2025
VIA ELECTRONIC MAIL AND FIRST-CLASS U.S. MAIL
City of Bozeman
Attn: City Commission and Planning Department 121 N. Rouse Avenue Bozeman, MT 59715 comments@bozeman.net
Re: Second Supplemental Objection – Application No. 24147 (Boutique Hotel Mendenhall)
Encroachment into Bozeman Creek Setback and Floodplain – Procedural and Legal
Deficiencies
Dear Mayor, Commissioners, and Planning Staff:
On behalf of the Bozeman Hotel Owners’ Association (BHOA), we submit this
supplemental objection concerning Application No. 24147, which seeks site plan approval for the proposed Boutique Hotel Mendenhall at 302 East Mendenhall. Specifically, we object to the applicant’s request to encroach 30 feet into the required 35-foot stream setback for Bozeman Creek, reducing the buffer to just 5 feet from the creek channel.
This request—if considered at all—must be treated as a separate and discretionary land use application subject to specific procedural safeguards. As of this writing, no formal variance or
environmental deviation application has been submitted, noticed, or reviewed in the public
record, and no streambank delineation, floodplain analysis, or federal/state permitting has been
disclosed.
I. The Encroachment Is Not Lawfully Before the City
The Bozeman Municipal Code requires a minimum 35-foot setback from the top of bank of Bozeman Creek (BMC § 38.360.030). This buffer protects ecological integrity, water quality,
and floodplain function. The applicant’s requested 30-foot encroachment represents an 86%
reduction in the required setback, and no portion of the Bozeman Municipal Code allows such a
deviation under administrative site plan review.
City of Bozeman
April 10, 2025
Page 2
To our knowledge:
• No variance or conditional use permit has been filed.
• No riparian buffer modification process has been initiated under Bozeman code.
• No public notice or opportunity to be heard has been provided for such an
environmentally impactful encroachment.
Thus, the encroachment is not properly before the Commission and must be excluded from consideration unless and until proper procedures are followed.
II. "Previously Developed" or "Urban Core" Exemptions Do Not Apply
The City may attempt to argue that the parcel's prior use as a paved parking lot justifies a setback exception. This rationale is legally insufficient. The Bozeman Municipal Code contains no grandfathering provision that exempts historically paved or urban parcels from stream setback requirements. These environmental protections apply regardless of prior land cover, and are designed to restore functional buffers where feasible, not entrench prior degradation.
To accept this defense would be to nullify the protective purpose of the ordinance in
Bozeman’s most ecologically stressed locations—directly contrary to both local code and
FEMA floodplain guidance.
III. Lack of Streambank Delineation and Buffer Mapping
The 35-foot buffer is measured from the top of the bank, which must be delineated by a qualified hydrologist, surveyor, or engineer. As of this date, the applicant has submitted no delineation or map establishing the regulatory starting point for this setback. Without that
delineation:
• No building envelope can be confirmed as compliant.
• No site plan approval is valid.
• Any claim that the structure “might comply” after future delineation is speculative and
procedurally improper.
We respectfully request that the City require and publicly disclose a certified top-of-bank delineation before further proceedings occur.
IV. Federal and State Environmental Oversight Required
The affected area lies within the Bozeman Creek floodplain, and likely implicates the following permitting regimes:
City of Bozeman
April 10, 2025
Page 3
1. Montana Natural Streambed and Land Preservation Act (310 Permit) – for any
disturbance within the riparian corridor.
2. Section 404 of the Clean Water Act – for any fill, discharge, or alteration of the
creekbed or banks, administered by the U.S. Army Corps of Engineers.
3. FEMA floodplain regulations – as adopted by the City, which may prohibit or limit
development within the base flood elevation boundary.
The record contains no evidence of:
• A floodplain development permit;
• DEQ or Corps consultation;
• Any stormwater or erosion control analysis related to this encroachment.
The failure to secure or even acknowledge these approvals renders the application both
incomplete and unapprovable at this time.
V. Preemptively Addressing Anticipated Defenses
To streamline the record ahead of the Commission hearing, we respond in advance to arguments we anticipate the applicant or staff may raise:
Anticipated Defense Response
“This is just part of site plan review.”
Incorrect – Stream setback deviations require independent
applications with public notice. No code section authorizes environmental waivers through site plan alone.
“The site was already
paved.”
Irrelevant – Prior disturbance does not negate code-imposed buffer standards. Bozeman’s code applies uniformly regardless of historical use.
“No fill or bank
alteration is proposed.”
Incomplete – Even proximity to the creek within a floodplain can
trigger permitting and raises erosion, water quality, and drainage
concerns.
“Top-of-bank hasn’t
been delineated yet.”
Fatal flaw – No development can be approved until the top-of-bank is
established by a licensed professional.
“The encroachment will be mitigated.” No mitigation plan has been submitted, reviewed, or conditioned. No approval may occur based on speculative or implied mitigation.
City of Bozeman
April 10, 2025
Page 4
VI. Requested Commission Action
We respectfully request that the City Commission:
1. Defer or deny Application No. 24147 unless and until:
o A formal application for creek setback variance is submitted and noticed.
o A top-of-bank delineation is provided.
o All applicable floodplain and environmental approvals are secured and disclosed.
2. Direct the applicant to amend its site plan to comply with the 35-foot buffer or formally
seek a variance.
3. Provide written public findings that no development within the buffer will be approved
without full environmental compliance.
Conclusion
Environmental rules are not optional. The City cannot approve private development that
disregards Bozeman’s creek protections and exposes adjacent landowners and the public to
increased flood and ecological risk.
We urge the Commission to enforce the law, preserve public resources, and uphold the
procedural integrity of the planning process. This encroachment must not be rubber-stamped in the absence of the required applications, disclosures, and approvals.
Sincerely yours,
John L. Amsden