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Home My WebLink About04-10-25 Public Comment - J. Amsden - Application No._ 24147; Re_ Third Supplemental Technical ObjectionFrom:Valery Moreno To:Bozeman Public Comment Cc:John Amsden Subject:[EXTERNAL]Application No.: 24147; Re: Third Supplemental Technical Objection Date:Thursday, April 10, 2025 2:26:44 PM Attachments:image001.pngimage002.png25-0410 Amsden to City of Bozeman re BHOA Third Supplemental Technical Objection.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. 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 Planning Department, Engineering Division, and City Commission 121 N. Rouse Avenue Bozeman, MT 59715 comments@bozeman.net RE: Application No. 24147 (Boutique Hotel Mendenhall) – Supplemental Technical Objection re: Parking Displacement, Traffic Impact Study Deficiencies, and Environmental Compliance I. INTRODUCTION This memorandum supplements prior objections submitted by the Bozeman Hotel Owners’ Association (BHOA) concerning the proposed Boutique Hotel Mendenhall project. The purpose of this submission is to provide a standalone technical analysis of the deficient Traffic Impact Study (TIS), the unlawful displacement and misrepresentation of existing parking supply, and the application’s noncompliance with Bozeman Municipal Code (BMC) Division 38.540. This memorandum also references the need for environmental review under the Natural Streambed and Land Preservation Act (310 permit) and the federal Clean Water Act (404 permit). II. EMPIRICAL PARKING CONDITIONS AND PHOTOGRAPHIC EVIDENCE (EXHIBIT A) On April 9, 2025, at approximately 7:30 p.m., photographs were taken of the: • Hotel Lot (project site at 302 E. Mendenhall); • Pederson Lot (leased by the Bozeman Hotel); • On-street spaces on Mendenhall and Rouse. Across all three areas, only 3 to 7 total stalls were visibly unoccupied. These images are attached as Exhibit A and confirm that: • The Hotel Lot is actively used for off-street parking; April 10, 2025 Page 2 • The Pederson Lot is at or near capacity during evening peak; • On-street supply is extremely limited. III. DEFICIENCIES IN THE TRAFFIC IMPACT STUDY (TIS) A. Misleading Baseline Assumptions The TIS refers to the hotel parcel as “currently undeveloped,” a characterization inconsistent with observed and photographic evidence. The Hotel Lot is in active use as a parking facility. The failure to account for this existing use creates a false net-zero baseline that conceals displaced demand. B. Failure to Quantify Net Impact The hotel includes approximately 65 guest rooms, with accessory uses (restaurant/bar, retail, lobby) totaling 64,684 sq. ft. Under BMC § 38.540.050-3: • Hotels require 1.1 spaces per room + 1 per employee; • Restaurants: 1 space per 60 sq. ft. of indoor public area; • Commercial/retail: 1 space per 400 sq. ft. A conservative estimate yields a total parking demand of 71-85 stalls, not accounting for bicycle reductions or overlap. However, the TIS fails to quantify: • Current stall count lost on the Hotel Lot (approx. 26); • Existing contractual encumbrance of the Pederson Lot (approx. 45 stalls); • On-street limitations due to time restrictions and ADA regulations. This renders the TIS conclusions analytically unsound. C. Overlapping Encumbrances The developer claims to meet parking requirements via a lease of the Pederson Lot. However, this lot is already leased to and relied upon by the Bozeman Hotel to maintain zoning compliance under BMC § 38.540.070(A)(6). Reallocating it without mitigation or offset is not a net gain; it is a zero-sum reallocation. D. No On-Street or Shared Use Crediting Allowed Without Conditions BMC § 38.540.060 allows shared parking only if: April 10, 2025 Page 3 • Uses operate at non-overlapping times; • The lot is within 1,000 feet; No such documentation has been submitted. Significantly, the TIS is also internally inconsistent. First, the TIS says: Yet, the TIS also recognizes that the on-street parking current fails existing standards: Here’s the standard quoted on page 12 of Appendix A of the TIS:1 Yet, the TIS recognizes that the upper limit has already been exceeded: Accordingly, even as flawed as the TIS is, it confirms what we already know—the parking situation in the affected area is already beyond the “upper limit here.” Adding a net gain of some 100 parking unit requirements is bad policy and violates Bozeman’s own code and internal standards. IV. CODE COMPLIANCE VIOLATIONS A. BMC § 38.540.010 The purpose of Division 38.540 is to avoid “spillover parking into adjacent neighborhoods” and ensure access and zoning compliance for all users. Approval of this project without offsetting the displaced parking violates the policy and text of the provision. B. BMC § 38.540.050-3. The required stall count is not met when: • Displaced stalls are ignored; 1 The 85% parking utilization threshold is widely recognized in transportation planning literature as the practical upper limit of efficient on-street parking. When occupancy exceeds 85%, users are likely to experience difficulty finding spaces, resulting in congestion, circulation delays, and reduced accessibility. April 10, 2025 Page 4 • Shared or off-site stalls are double-counted; • Peak demand is unmodeled. B. BMC § 38.540.070 (Off-site Parking) Requires that off-site parking: 1. Be within 1,000 feet; 2. Be under long-term lease; 3. Not displace other code-compliant users. The Pederson Lot fails on point (3) above. Although BMC § 38.540.070 does not expressly prohibit the displacement of other users’ parking, the requirement that off-site parking be “secured by a recorded easement, long-term lease, or other legal instrument to ensure continued availability throughout the life of the use it serves” implies exclusivity. The City cannot lawfully allocate the same off-site stalls to multiple developments without violating its own zoning enforcement framework. A parking space previously approved as satisfying the minimum code requirement for one property (e.g., the Bozeman Hotel) cannot be reassigned to another (e.g., the proposed Boutique Hotel) without rendering the first noncompliant—unless there is a lawful shared parking agreement under BMC § 38.540.080. To interpret the code otherwise would allow silent extinguishment of vested rights and zoning compliance, raising due process and takings concerns. This is consistent with municipal planning standards nationwide, which prohibit “double-counting” of required parking absent a formally approved shared-use agreement. V. ENVIRONMENTAL CONCERNS – 310 AND 404 PERMITTING The development site lies directly adjacent to Bozeman Creek, a perennial watercourse that traverses downtown Bozeman and is subject to both state and federal environmental protection statutes. Historical mapping, FEMA overlays, and the City’s own drainage infrastructure show that Bozeman Creek runs within 20 feet of portions of the proposed project site—including the alleyway proposed for valet access, the Pederson Lot, and below-grade utilities associated with the hotel’s foundation and service infrastructure. While the surface area may appear developed or paved, any demolition, trenching, drainage re-routing, or utility excavation has the potential to disrupt stream function, riparian stability, or regulated subsurface hydrology. These disturbances fall squarely within the regulatory purview of both the Montana Natural Streambed and Land Preservation Act and Section 404 of the federal Clean Water Act. April 10, 2025 Page 5 A. 310 Permit Requirements Under MCA § 75-7-111(1), a permit is required for any physical modification to the bed or banks of a perennial stream. The Gallatin Conservation District’s jurisdiction is triggered by proposed work that occurs within the ordinary high-water mark or that may alter streambed stability or riparian vegetation. Examples of covered activity include: • Excavation, fill, or grading within 50 feet of Bozeman Creek; • Vegetation removal for curb installation or visual clearance; • Reconfiguration of alleyway access or elevation changes near the creek’s eastern bank; • Installation of drainage pipes, sump pumps, or footing drains discharging toward the creek. B. 404 Permit Requirements Under 33 U.S.C. § 1344 and 33 CFR § 323.2(d), a Section 404 permit is required for the discharge of dredged or fill material into waters of the United States. Bozeman Creek has long been recognized as a jurisdictional water, and projects adjacent to it have routinely required federal permitting—even when separated by an alley, easement, or partial culvert. Activities potentially requiring a 404 permit include: • Placement of concrete pads or sidewalks on regraded surfaces within the floodplain; • Utility crossings (e.g., sewer, electric, gas) that trench near or beneath the hydrologic path; • Subsurface stormwater facilities or French drains within permeable or semi-saturated soils. C. Rebuttal to Anticipated Claims of Exemption The applicant may argue that the site is already paved and thus exempt from permitting. However, surface paving is not a categorical exemption. Montana law and federal guidance are clear that any new ground disturbance—particularly one that alters drainage or vegetative cover near a regulated stream—requires formal review. The fact that the lot is currently used for parking does not immunize it from regulation. Proposed redevelopment activities such as excavation, demolition, regrading, installation of vaults or drainage tanks, or modifications to the adjacent alley can all qualify as streambank disturbances or discharges of fill under the applicable statutes. April 10, 2025 Page 6 To ensure consistent application of environmental protections, the City must require: Formal Jurisdictional Determinations: • 310 Jurisdiction must be established through a site-specific review by the Gallatin Conservation District, including proposed work area maps and hydrologic context. • 404 Jurisdiction must be confirmed by the U.S. Army Corps of Engineers through a Preliminary Jurisdictional Determination (PJD) or Approved JD. Until those determinations are obtained, it is legally and procedurally improper to treat the application as complete or to approve site plan permits involving excavation, drainage, or demolition near Bozeman Creek. VI. CONCLUSION AND RECOMMENDATIONS Based on the photographic evidence, empirical data, and code analysis above, the City should: 1. Reject Application No. 24147 until a corrected TIS is submitted accounting for actual stall displacement, existing use, and overlapping encumbrances; 2. Require a net parking impact analysis in compliance with BMC § 38.540.010 and § 38.540.050; 3. Deny credit for Pederson Lot stalls unless the applicant can demonstrate: o No loss of zoning compliance for the Bozeman Hotel; o BMC-compliant off-site parking use; 4. Require documentation of all off-site/shared use agreements under BMC § 38.540.060 and § 38.540.070; 5. Suspend further action on the application until the applicant provides: o Environmental determinations for 310 and 404 permitting; o Updated site plans that account for drainage, pedestrian circulation, and stall dimensions (BMC § 38.540.020). Sincerely yours, John L. Amsden April 10, 2025 Page 7 Enc. Exhibit A, Photographic Evidence (April 9, 2025 at 7:30 p.m.) April 10, 2025 Page 8 April 10, 2025 Page 9 April 10, 2025 Page 10