HomeMy WebLinkAbout04-15-25 Public Comment - M. Kaveney - #24147, Boutique Hotel Deviation application, City CommissionFrom:Marcia Kaveney
To:Bozeman Public Comment
Subject:[EXTERNAL]#24147, Boutique Hotel Deviation application, City Commission
Date:Sunday, April 13, 2025 1:00:53 PM
Attachments:Fact_Sheet_3_Property-Rights_2009-1.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 Mayor, Deputy Mayor, and Commissioners-
I am writing to ask the City Commission to deny the Boutique Hotel COA and DeviationApplication #24147 for the reasons that follow.
At first glance this might seem like just another hotel sharing a parking lot with a
neighboring business and asking permission to add creekside amenities. However, with closerscrutiny, especially of the evidence supplied by Atty John Amsden of Beck, Amsden, Stalpes,
pllc, one finds the application inadequate and lacking in environmental procedure and process,as well as inadequate in its proposed parking solution. It is explicitly stated in Bozeman's
municipal codes that they are the minimum standards so it is my sincerest hope that you willinsist that staff uphold the strictest review of this project and that you will deny this
application based on it's desired encroachment into the watercourse setback and it's likelylocation in the floodplain.
I specifically object to:
1. Applicant's request to encroach 30 feet into the 35 foot setback reducing the buffer to 5 feetper BMC 38.410.100. A.2.c. which now calls for new developments to adhere to a minimum
setback of 75 feet along Bozeman/sourdough Creek.
On the SeeBozemanCreek website, Mayor Cunningham is quoted to have said in a recentaddress, " Bozeman Creek is our creek." I absolutely agree, and following that sentiment
believe we need to do all we can to protect it and not allow businesses to encroach upon itand monopolize it.
There is nothing vague about the watercourse setback standards which makes them some of
the easiest codes in the city codes to follow. Please direct the staff and applicant to do so bydenying this application until it has followed the process as set forth in code and as clearly
pointed out by John Amsden, Atty, in public comment. Watercourse setbacks have beensupported in courts as illustrated by the fact sheet I have attached below.
As a minimum, the applicant should be required to keep all disturbances and non-permeable
surfaces out of the minimum required 35 foot setback. This minimum is established formaintaining ecological integrity, water quality, and floodplain function.
Historical lack of watercourse buffers and protection should not be guiding future
development.
Furthermore, the applicant's suggested uses for the watercourse setback include prohibiteditems and structures as outlined in BMC Chapter 38.600.250. such as concrete steps and
walkways (polluted runoff) and raised patios (channelization) and should be denied.
It is clear that this application is not ready to move forward in its current state and will hinderfuture plans to further restore Bozeman Creek. Building in floodplains and
watercourse setbacks can endanger the public health, safety, and general welfare of Bozemanresidents and Bozeman visitors alike and Bozeman municipal codes offer unambiguous
standards for avoiding these negative consequences in Chapter 38, Article 6. This project doesnot adhere to these codes. I urge you to follow protective codes and deny application #24147
on Tuesday night, April 15, 2025.
Thank youMarcia Kaveney
1A variety of issues have arisen at the local government level regarding the legality of stream setback regulations.
One of the most common arguments raised is that stream protection provisions are a “takings” of private property
by the government. Additionally, there have been questions raised about whether these provisions are allowed in
subdivision or floodplain regulations. This fact sheet tries to sort through some of the legal issues surrounding
stream setbacks, including what lawsuits have been filed in Montana over stream protection measures.
3.1. Are stream setback regulations considered a “takings” of private property by
the government? Shouldn’t a city or county adopting setbacks be required to purchase
lands affected by these regulations?
The simple answer to both of these questions is ‘no.’ Stream setback regulations have been in place in Montana
since 1985, when Choteau County first adopted regulations to protect the Missouri River corridor, as well as other
streams in the county. Since that time numerous other local governments have adopted setbacks as part of subdivision
regulations or zoning, including Madison County (1994), Missoula County (1995), the City of Missoula (1995),
Park County (2000), Powell County (approximately 2000), City of Bozeman (2002), Meagher County (2003),
Gallatin County (2005), Lake County (2005), Lewis & Clark County (2005), Cascade County (2007), City of
Whitefish (2008), and Flathead County (2009). To date, no lawsuits have challenged any of these regulations.
In fact, the only lawsuit that challenged the validity of stream setback regulations occurred in Big Horn County.
However, that lawsuit successfully challenged the process that the county used to adopt their regulations, and not
the regulations themselves (see question # 3.3 below).
Since the inception of land use planning, the courts have developed thresholds for determining whether a particular
land use regulation is a legitimate exercise of the “police power” inherent in our government’s authority to protect
public health, safety, and welfare. The following standards have emerged from a history of court decisions to guide
local governments in determining the validity of regulations.
•••••The regulation in question must have been adopted in accordance with the applicable enabling statute.
•••••The regulation must be reasonably related to, and must actually further, public health, safety, or general
welfare.
•••••The regulation must not unreasonably discriminate between similarly situated lands.
•••••The regulation must not be arbitrary or capricious either on its face or as applied to a particular property.
It should go no further than is required to achieve its legitimate objective, and, in the case of zoning and
subdivision regulations, must conform to an adopted Growth Policy.
FACT SHEET 3: Are Stream Setbacks Legal? How do they Impact
Private Property Rights?
1
•••••The regulation must not have the effect of excluding entire racial, minority, or economic groups from the
jurisdiction.
•••••The regulation must not be considered to be an unconstitutional “taking” of property. The most commonly
applied “takings” test is whether the regulation denies a landowner of all economically viable use of property
without compensation.
In addition to the above guidelines, regulations should contain a process by which local governments consider the
concerns of citizens affected by a regulation before final decisions are made. Appeal and variance processes
should be included in the regulations to address due process rights for citizens.
The Community Technical Assistance Program within the Montana Department of Commerce’s Community
Development Division is currently working on a ‘takings’ primer. For more information about this product, contact
Kelly Casillas, Legal Counsel: 406-841-2727, kcasillas@mt.gov.
3.2. Have there been any lawsuits in Montana based on local government stream
protection regulations? If so, what was the outcome?
There have been two lawsuits decided in Montana with some basis in stream protection issues. One lawsuit
addressed technical issues on how stream setback regulations were adopted (Big Horn County) and one addressed
setbacks for septic systems from the floodplain. Both lawsuits are described below.
Farley v. Big Horn County (2003), 22nd Judicial
District Court of Montana, 2003 ML 2582; Mont.
Dist. LEXUS 2464
This case involved adoption of stream setbacks provisions
in interim zoning regulations. In 2002, the Growth Policy
adopted by Big Horn County included construction
setbacks of 300 feet from the ordinary high water mark of
all perennial streams. On Oct. 17, 2002, after two public
hearings, the Big Horn County Commissioners adopted
interim zoning regulations that stated, “no new structures,
including mobile homes and recreational vehicles, and no
roads or driveways, may be placed within 300 feet of the
ordinary high water mark of the perennial rivers and streams
in the areas under the jurisdiction of Big Horn County” for
a period of one year. These interim regulations were
enacted to avoid a rush of construction projects aimed at
beating permanent regulations. Shortly after County
Commissioners adopted the interim regulations, a lawsuit
was filed against the County over the regulations on a
procedural issue.
Montana law allows counties to adopt interim zoning. What
the court ruled in Farley v. Big Horn County, however,
was that the public meeting notice for the interim zoning
regulations was inadequate and it “failed to meet the
Perennial—Not a Common Term?
The public meeting notice for Big Horn County’s
interim zoning regulations stated that the Board of
County Commission would meet in regular session,
“for the purpose of adopting interim regulations with
regard to 300' [feet] no build zone on any perennial
waterways within Big Horn County.” The court’s
decision to throw out the regulations in Farley v.
Big Horn County was based on the fact that
“perennial” was not defined in the public notice.
Specifically the court wrote, “The term perennial,
when used to describe a type of waterway, without
further context or definition, may lead persons of
common intelligence to necessarily guess at its
intended meaning…The Board’s public
announcement failed to define the term perennial
or describe with particularity the affected streams
and adjacent areas potentially subject to the
Resolution. As a consequence, interested and
affected landowners are left to guess as to whether
streams running through their property could be
considered perennial and therefore subject to the
Resolution. Without adequate notice of the
impending action, all affected landowners were
denied due process of law.”
2
required standard for due process." As a result, the interim zoning regulations were declared "null and void." This
lawsuit was decided in August 2003. Since then, Big Hom County Commissioners have chosen not to formerly
take up regulations for stream setbacks again.
McElwain v. County of Flathead (1991), Montana Supreme Court, No. 90-377
This case involved septic system laws in Flathead County. Mary McElwain purchased 14 acres of property along
the Flathead River in 1979. At the time of the purchase, Flathead County's septic regulations (adopted in 1975)
had a setback requirement of 100 feet from the Flathead River. McElwain planned to eventually build a home 200
feet from the bank of~a~ad River. On August 6, 1984, Flathead County adopted a new septic system regulation,
which required a 1 00-fetoack between the septic system drainfield and the floodplain. On August 23, 1984,
McElwain applied for ~permit for her retirement home. Flathead County denied her permit based on the fact that
the drainfield would not have a setback of 100 feet from the floodplain. She was also denied a variance. McElwain,
after exhausting her administrative appeals, filed a lawsuit against Flathead County asserting that the new law
diminished the value of her land. This lawsuit eventually reached the Montana Supreme Court, which decided that
even though her property was reduced in value from $75,000 to $25,000, the new Flathead County septic system
regulation was not a regulatory taking. The new septic system law was ruled to be substantially related to the
legitimate state interest of protecting public health and safety-"keeping sewage out of the river." The Montana
Supreme Court also held that the public interest involved outweighed the encroachment upon the landowner's
property.
3.3. Are cities and counties allowed to include stream setbacks in their subdivision
regulations?
Yes. As indicated above, several Montana cities and counties have adopted setbacks in their subdivision regulations
(see question #3 .1 ). None of these regulations have been challenged as "illegal." If you have questions about the
applicability of stream setbacks in subdivision regulations, contact the Community Technical Assistance Program in
the Community Development Division within the Montana Department of Commerce:
• Legal Counsel: Kelly Casillas, 406-841-2727, kcasillas @mt.gov
• Program Manager: Jerry Grebenc, 406-841-2598, jgrebenc@ mt.gov
3.4. Are counties allowed to prohibit subdivisions within the 100-year floodplain?
Yes. Several Montana counties prohibit subdivisions within the floodplain, including Cascade, Flathead, and Ravalli
Counties. Putting a subdivision too close to a river or stream has real consequences. It can ruin people's homes and
the local government can actually be liable for doing so:
Missoula County has an instructive example of why it is important and financially prudent to keep subdivisions out
of the floodplain. In 1992, Missoula County approved a 92-lot subdivision west of Missoula along lower Grant
Creek. The subdivision was located outside the 1 00-year floodplain boundary on FEMA Flood Insurance Rate
Maps. In 1997, during runoff calculated to be less than a 1 0-year flood, water submerged some of the lots, yards,
basements, and the sewage treatment system of this subdivision. As a result, 16 homeowners and the homeowners
association filed a lawsuit against the property developer, the developer's engineer, local real estate agents, and
Missoula County. A negotiated settlement g_ai<i $2.3 million to the homeowners. Because of the lawsuit, in 2001 the
MT Dept of Natural Resources ?nJ'c~~~l<d a study for this site. That study showed that 45 of the homes in
the subdivision were in the regulat~ floodway. How did this happen? Because Grant Creek's natural meanders
3
had been eliminated, and the creek channelized, the intensity of flooding substantially increased in the subdivision
area. It appears that the only feasible way to resolve this problem is to restore 5 miles of Grant Creek, including its
riparian vegetation and floodplain—a project that will likely cost millions of dollars—and just got started in 2008.
As explained above, development activity along streams can divert flood waters onto other properties. It can also
reduce the size of natural stream channels; narrow the natural floodplain; fill essential flood water storage space;
and alter water velocities. These changes are often made with little or no regard for how these changes affect other
people and property in the floodplain or elsewhere in the watershed. Because of these problems, in 2000 the
Association of State Floodplain Managers developed a “no adverse impact” approach or goal for local and state
governments. (see <http://www.floods.org/index.asp?menuID=349&firstlevelmenuID=187&siteID=1>). This
program is designed to help manage floodplains to control flood and erosion losses, as well as insure that new
development does not increase flood risks and losses.
If you have questions about the applicability of stream setbacks in floodplain regulations, contact the Community
Technical Assistance Program in the Community Development Division within the Montana Department of
Commerce:
•••••Legal Counsel: Kelly Casillas, 406-841-2727, kcasillas@mt.gov
•••••Program Manager: Jerry Grebenc, 406-841-2598, jgrebenc@mt.gov
3.5. Why did the Montana Legislature reject setbacks legislation at the state level?
Since legislation failed at the Montana Legislature, doesn’t that prohibit local
governments from attempting to adopt stream setbacks?
Statewide legislation was attempted at three sessions of the Montana Legislature (2005, 2007, and 2009) to set up
a consistent system of streamside protections across the state. According to the Realtors and builders, state
legislators rejected statewide setbacks because they thought the ‘setbacks decision’ should be made at the local
government level—and not at the state level. Unlike most county regulations, the state legislation has recently only
addressed setbacks on rivers (not streams) because many rivers in Montana cross jurisdictional lines. Because
unwise riverside development in upstream counties can have profound impacts on property in downstream counties,
a consistent minimum state policy on rivers makes sense. Although this legislation failed to pass, it does not affect
the right of local governments to adopt stream setbacks at the local level.
If you have questions about the applicability of stream setbacks in subdivision regulations, contact the Community
Technical Assistance Program in the Community Development Division within the Montana Department of
Commerce:
•••••Legal Counsel: Kelly Casillas, 406-841-2727, kcasillas@mt.gov
•••••Program Manager: Jerry Grebenc, 406-841-2598, jgrebenc@mt.gov
Stream Setback Fact Sheet Series prepared by Montana Audubon for the Montana Dept. of Environmental Quality.
2009. Access at www.mtaudubon.org. May be reprinted without permission.
4