HomeMy WebLinkAbout07-07-25 Public Comment - E. Arnold - Public Comment - 5211 Baxter Lane ZMA (Application # 24570)From:Erin Arnold
To:Bozeman Public Comment
Cc:Greg Sullivan; Kelley Rischke
Subject:[EXTERNAL]Public Comment - 5211 Baxter Lane ZMA (Application # 24570)
Date:Monday, July 7, 2025 3:14:45 PM
Attachments:5211 Baxter Lane Opposition - Gallik & Bremer.pdf
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Hello,
Please include the attached comment letter in the record for the City Commission’s hearing tomorrow.
Thank you,
Erin L. ArnoldAttorney at Law
Gallik & Bremer, P.C.777 East Main Street, Suite 203Post Office Box 70
Bozeman, Montana 59771-0070PH: (406) 404-1728erin@galliklawfirm.com
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1
GALLIK & BREMER, P.C.
Attorneys at Law
777 East Main Street, Suite 203
Post Office Box 70
Bozeman, Montana 59771-0070
July 7, 2025
Bozeman City Commission SENT VIA EMAIL ONLY
c/o Tom Rogers
Department of Community Development
PO Box 1230
Bozeman, MT 59771-1230
Comments@bozeman.net
RE: 5211 Baxter Lane Zone Map Amendment (Application No. 24570)
Dear Honorable Bozeman City Commission,
We submit this comment in opposition to the proposed 5211 Baxter Lane Zone Map Amendment
(“ZMA”) and on behalf of our clients Michael and Kathleen Cok, Tyler and Carol Merica, Jess
and Alicia Buck, Patrick and Christina Ryan, Joe Cleveland, and Lisa Jones.
The subject property is comprised of one, approximately 164-acre lot, described as Tract 1 of
Certificate of Survey 2553A (the “Property”). The Property adjoins annexed land on only two
sides, the south and east. It is bordered on the west, north, and northeast by unannexed lands zoned
Agricultural Suburban (AS) within the Gallatin County/Bozeman Area Zoning District and Rural
Residential and Agricultural (RR/A) within the Four Corners Zoning District. The Baxter
Meadows West Subdivision, zoned Residential Low Density (R-1), is to the east, across Harper
Puckett Road.
Our clients’ agricultural and residential properties are located to the immediate east and to the
northeast. They will be personally and detrimentally impacted by the ZMA and future high-density
development. The Coks live at 3300 Harper Puckett Road, property used for argricultural purposes.
The Mericas, Bucks, Ryans, and Cleveland/Jones live at 2493, 2481, 2497, and 2463
Thoroughbred Lane, respectively, in the Baxter Meadows West Subdivision.
Despite naming the project, “The Ranch,” the ZMA designates the Property for high-density
development, with a mix of Residential Mixed-Use High-Density (R-5) and Residential Medium
Density (R-3).
2
On behalf of our clients, we respectfully request the Commission deny the ZMA. This proposed
density is based entirely on potential, future infrastructure. It ignores the existing and prevailing
land uses, as well as the inadequate transportation network available to serve the Property.
Should you decide not to deny the ZMA outright, we ask the Commission to exercise its authority
under Bozeman Municipal Code (“BMC”) Section 38.260.120.D.2. That provision authorizes the
City Commission to adopt a zoning designation different than that applied for upon continuation
of the hearing and ability of the applicant to protest. Under this alternative, we request the
Commission designate only the southernmost portion of the Property next to the Northwest
Crossing development as Residential Medium Density (R-3) and the remainder of the Property as
Residential Low Density (R-1).
ZMA Criteria
Section 76-2-304, Montana Code Annotated (“MCA”), establishes the criteria and guidelines for
municipal zoning. A zoning regulation must be made in accordance with the City’s growth policy
and designed to: (i) secure safety from fire and other dangers; (ii) promote public health, public
safety, and the general welfare; and (iii) facilitate the adequate provision of transportation, water,
sewerage, schools, parks, and other public requirements. § 76-2-304(1), MCA.
In considering these criteria, the City Commission also must evaluate: (a) whether the zoning will
make reasonable provision for adequate light and air; (b) how the zoning will effect motorized and
nonmotorized transportation systems; (c) whether the zoning promotes compatible urban growth;
(d) the character of the existing and proposed zoning and the proposed zoning’s peculiar suitability
for particular uses and (e) whether the zoning encourages the most appropriate use of land
throughout the City’s jurisdictional area. § 76-2-304(2), MCA.
The staff report properly recognizes, “the Commission has broad latitude to determine a policy
direction” for a ZMA.1 Further, “the burden of proof that the application should be approved lies
with the applicant.”2
The applicant cannot satisfy this burden. The proposed mix of R-5 and R-3 zoning is incompatible
with the City’s growth policy and the character of the surrounding rural residential neighborhood
and agricultural uses. There also are real concerns presented to public health and safety due to the
existing conditions of the county road network and built environment.
1 24570 Staff Report for the 5211 Baxter Annexation and ZMA, 26 (June 18, 2025).
2 Id.; see also BozemanMT 2020 Community Plan, Section 5 (“Amendments + Review”), p. 71.
3
1) The Application Does Not Substantially Comply with the Community Plan.
The first criterion requires the proposed zoning to comply with the BozemanMT 2020 Community
Plan (“Community Plan”). The Montana Supreme Court has interpreted this standard as requiring
“substantial compliance.”3 The application does not substantially comply with the Community
Plan. Except for the southern extent, the proposed zoning fails to transition from higher density to
lower density. Even to the south, the designation will create an area of high density with limited
connectivity to the City’s existing transportation system and will exacerbate safety concerns
created from the outdated county road network.
a. Lack of Gradual and Predictable Transition in Density
The Community Plan encourages higher density in proximity to commercial mixed use and
discourages high density abutting low, residential density. The proposed ZMA conflicts with this
principal and will create an area of high density abutting agricultural land and low-density
residential development.
The following goals, with emphasis added, will be negated by the application:
Goal N-1: Support well-planned, walkable neighborhoods.
N-1.11 Enable a gradual and predictable increase in density in
developed areas over time.
Goal DCD-2: Encourage growth throughout the City, while enhancing the pattern
of community development oriented on centers of employment and activity.
Support an increase in development intensity within developed areas.
DCD-2.2 Support higher density development among main corridors
and at high visibility street corners to accommodate
population growth and support businesses.
DCD-2.7 Encourage the location of higher density housing and
public transit routes in proximity to one another.
3 Hartshorne v. City of Whitefish, 2021 MT 116, ¶ 19, 404 Mont. 150, 486 P.3d 693 (quoting Heffernan v. Missoula
City Council, 2011 MT 91, ¶ 79, 360 Mont. 207, 255 P.3d 80) (“A governing body must substantially comply with
its growth policy in making zoning decisions.”))
4
Goal RC-3: Collaborate with Gallatin County regarding annexation and
development patterns adjacent to the City to provide certainty for landowners and
taxpayers.
RC-3.1 Work with Gallatin County to create compact, contiguous
development and infill to achieve efficient use of land and
infrastructure, reducing sprawl and preserving open space,
agricultural lands, wildlife habitat, and water resources.
RC-3.2 Work with Gallatin County to keep rural areas rural and
maintain a clear edge to urban development that evolves as
the City expands outwards.
RC-3.3 Prioritize annexations that enable the incremental
expansion of the City and its utilities.
The Future Land Use Map designates the Property as “Urban Neighborhood.” In line with the
above goals, the description for the Urban Neighborhood designation notes that, although not
required, higher density residential areas are encouraged in “proximity to commercial mixed-use
areas to facilitate the provision of services and employment opportunities without requiring
the use of a car.”4
The Staff Report describes the location of the property as “unique,” due to “its distance to existing
commercial activity, employment centers, educational opportunities, and other City services
because it is nearing the jump to the next Commercial node identified on the BCP 2020 proposed
west of the subject property on Baxter Lane.”5 This proposed commercial node is located over a
half mile away, across undeveloped agricultural land. The potential future commercial node, to be
developed at an unknown time, does not support high-density development now with limited
access to existing commercial activity and other City services.
The Community Plan recognizes that “[i]nfill development and redevelopment should be
prioritized, but incremental compact outward growth is a necessary part of the City’s growth.”6
Similarly, the Plan relies on the policy that the “needs of new and existing development coexist
and they should remain in balance; neither should overwhelm the other.”7
The proposed R-5 and R-3 designations significantly conflict with these policies and goals. The
R-5 designation will allow for high-density residential use, including apartment buildings, two to
four household dwellings, and more than five attached townhouses and rowhouses.8 The proposed
4 Community Plan, p. 52 (Chapter 3 -Future Land Use) (emphasis added).
5 Staff Report at 28.
6 Community Plan, p. 20 (emphasis added).
7 Id. (emphasis added)
8 Table 38.310.030.A, BMC.
5
R-3 designation will allow for medium density, including five- to eight-unit apartment buildings,
two to four household dwellings, and five attached townhouses and rowhouses or less, all across
the street from a low-density residential neighborhood and immediately adjacent to vacant and
agricultural lands.9
The high-density R-5 zoning is proposed, not only along the REMU-zoned Northwest Crossing
development to the south, but in oddly defined shapes on the northwest and northeast corners of
the Property.
It is a much more predictable transition to designate the southern portion of the Property as R-3,
rather than R-5. The remainder of the property should be designated as R-1. As proposed, there is
no predictability for our clients regarding the density or type of housing that will be constructed
across the street from their homes and properties. This is not incremental growth. The density will
not co-exist or balance the rural and agricultural character of the surrounding properties.
The Staff Report recognizes the City Commission “must balance encouraging housing
development with development constraints and proximity to employment, entertainment,
education, and supporting its climate action initiatives.”10 There is no need for this level of density
on the Property, especially given the limited, existing transportation network and distance to City
services. As also noted by staff, “there are considerable natural features that will limit impervious
surfaces and placement of buildings.”11 These limited buildable areas will increase the level of
density chosen by the developer. While it is true that a “[d]etailed analysis of site conditions is a
requirement of both subdivision and zoning review,”12 this does not mean that designating the
property now with high-density development is appropriate.
In the alternative, designating the southern portion of the Property as R-3 allows for a step-up in
density near the REMU to the south and planned R-4/R-5 designations to the southwest. Revising
the proposed R-3 designation to R-1 will align the existing low-density, residential housing to the
direct east of the Property, and it will more closely align with the surrounding AS and RR/A zoning
to the west, north, and northeast of the Property. This split designation also allows for a diversity
of housing types, advocated by the applicant and staff, without allowing such diversity at the
expense of the surrounding landowners.
b. Absence of Connectivity and Transportation Capacity
The proposed designations also conflict with the Community Plan’s policies and goals relating to
9 Id.
10 Staff Report at 29-30.
11 Id. at 29.
12 Id. at 30.
6
transportation. The application focuses on future transportation connections to the Property. These
connections do not currently exist. The surrounding roads are inadequate to serve the proposed
density. The applicant will be required to provide rights-of-way and to waive its protest of future
improvement of the roadways, but none of these existing, substandard roadways will be presently
improved to the capacity required for a high-density development.
Harper Puckett Road runs north-to-south separating the Property from our clients’ properties. The
road, especially as it extends north from the Property, is a narrow rural road, connected to the
county-road network and with steep ditches. The Staff Report acknowledges that “Cottonwood
(Harper Puckett) is only partially constructed to a local street standard.”13 While the portion of
Harper Puckett directly adjacent to the Property will be improved when the Property is developed,
the application ignores that the remainder of Harper Puckett and the extending county road
network will remain below standard for ingress and egress.
Residents and visitors accessing the Property from the surrounding, unannexed areas to the north
or west must travel on the County’s rural roadways. Baxter Lane remains narrow and below City
standard to the west of the new traffic circle at Cottonwood Road. Adding additional capacity to
Baxter Lane will further exacerbate the unsafe road conditions to the west.
While the Property’s development may eventually allow for the extension of Cattail Street along
its northern boundary and Laurel Parkway on its western border, the timing and coordination of
these extensions are unknown.
Cattail Street ends at its intersection with Fergson Avenue to the east, across two large tracts, one
a 20-acre agricultural tract and the other on which Chief Joseph Middle School is located. The
tract to the north of the Property is a large agricultural tract. The application materials and staff
report acknowledge the ZMA provides only half of the right-of-way to construct Cattail Street.
Until the tract to the north also is developed or the requisite right-of-way granted, Cattail Street
will remain unimproved. It also will not connect to the east until that connection is completed.
The same applies to the future extension of Laurel Parkway. The applicant will provide half of the
right-of-way to construct that street, but it will remain unbuilt until the other half of the right-of-
way is granted, or the adjacent agricultural tracts are developed.
In referencing the future improvements to Cottonwood Road/Harper Puckett, Baxter Lane, and
Cattail Street, the Staff Report admits, “[n]one of these corridors are constructed today with no
timeframe for their construction in the near future.”14 In the interim, the applicant will proceed to
develop the portions of the Property it can, at the highest density available. For those portions of
13 Id. at 19.
14 Id.
7
the Property developed first, those residents and their guests will continue to rely on the existing
transportation network. This does not enhance the existing traffic circulation, nor does it provide
for circulation systems that do not currently exist. This will greatly impact the neighbors and will
adversely impact traffic safety.
The Community Plan recognizes the importance of integrating development based on necessary
infrastructure. It relies on the following principle:
Transportation infrastructure is vital in supporting desired land use patterns.
Therefore, the two must be coordinated. Future infrastructure should favor
interconnected multimodal transportation networks (i.e. infrastructure for
bicycle, pedestrian, and transit modes of transport in addition to automobiles.)15
In addition, the Community Plan proposes the following goals that, in addition to those set forth
above, disfavor the proposed zoning:
Goal N-1: Supporting well-planned, walkable neighborhoods.
N-1.9 Ensure multimodal connections between adjacent
developments and increased connectivity.
N-1.11 Enable a gradual and predictable increase in density in
developed areas over time.
Goal N-2: Pursue simultaneous emergence of commercial nodes and residential
development through diverse mechanisms in appropriate locations.
N-2.2 Revise the zoning map to support higher intensity
residential districts near schools, services, and
transportation.
Goal DCD-2: Encourage growth throughout the City, while enhancing the pattern
of community development oriented on centers of employment and activity.
Support an increase in development intensity within developed areas.
DCD-2.2 Support higher density development along main corridors
and at high visibility street corners to accommodate
population growth and support businesses.
15 Community Plan, p. 20 (emphasis added).
8
Goal DCD-3: Ensure multimodal connectivity within the City.
DCD-3.5 Encourage increased development intensity in commercial
centers and near major employers.
The transportation infrastructure needed to develop the Property with the mixed R-5 and R-3
zoning is absent. The Property is surrounded by a county road network not capable of supporting
higher density development.
The Commission should deny the ZMA. The proposed density conflicts with the Community
Plan’s focus on gradual and predictable density. It also lacks an existing transportation network
capable of supporting the high residential density proposed for the Property.
2) The Application Is Not Designed to Promote Public Health, Safety, and General
Welfare, Nor Will it Facilitate the Adequate Provision of Transportation.
Section 76-2-304(1), MCA, next requires the Commission to determine the proposed zoning will
promote public health, safety, and welfare, and facilitate the adequate provision of transportation,
among other criteria. In evaluating these elements, the Community Plan explains that
“[c]onsidering what infrastructure is already present, such as in infill situations, or whether placing
one zoning district next to another may reduce travel distances and increase walkability, are also
factors that can play into this criterion.”16
The application concludes the ZMA “will not put undue burden on municipal services, emergency
response capability, or similar existing requirements,” but without providing any convincing
reasons.17 The only grounds provided is that, in the future, development applications for the
Property will be reviewed for compliance with the BMC.18 Similarly, the applicant argues that
“[f]uture submittals will be reviewed for compliance with the City’s codes to ensure appropriate
levels of transportation, water, sewer, schools, and parks are provided.”19
While true, that is not the standard. Section 76-2-304(1), MCA, does not ask if future development
applications will be designed to promote public health, safety, and general welfare. The City
Commission must find the ZMA, as currently proposed, promotes public health, safety, and
welfare and will facilitate the adequate provision of transportation, water, and sewerage. If the
acceptable answer is that some unknown, future application(s) will satisfy this requirement, the
Commission’s review of the ZMA becomes only a pro forma exercise.
16 Community Plan, p. 74.
17 The Ranch application, Annexation and ZMA, “Narrative,” 13 (Oct. 2024) (“Application”).
18 Id.
19 Id. at 14.
9
Again, the needed transportation network is either not constructed or constructed to a subpar
standard. There is no timeframe for these necessary improvements. Baxter Lane and Harper
Puckett at present, and for the near-term, will remain as narrow two-lane roads. These roads are
connected to other county roads, none of which are constructed to support high-density
development.
The applicant’s claim that “any future development on this site will require the extension of city
services including road[s],” is misstated.20 The applicant is required to provide rights-of-way, and
they will be required to improve the adjoining roads to the extent of the future development’s
proportionate impact on the road network, but the applicant is not required to improve the larger
transportation network beyond those roads adjoining the Property.
Placing high density development on the existing rural road network will create unnecessary
hazards for the neighborhood, those residing on the Property, and the general public. While the
infrastructure is planned, it is not yet in existence to support the development.
3) The Proposed Zoning Designation Will Negatively Affect Motorized and
Nonmotorized Transportation Systems.
Here, again, the applicant relies on future unknown development applications to demonstrate
compliance with this standard. Per the application narrative, “[f]uture site development will
examine impacts on the transportation network, parks, and trails system, and municipal
facilities.”21 The application acknowledges that “[a]dditional development in the R-5 and R-3
districts will likely result in increased trips,” but claims “this site is uniquely situated by several
high classification roads which are acutely equipped to handle a significant amount of traffic.”22
The applicant continues to ignore that these “high classification roads” do not exist and have no
known date for construction.
The application will create a public safety issue on an already over-capacity road network. The
surrounding properties primarily consist of low-density homes and agricultural uses. These roads
are not intended for thousands of daily trips created by a high-density urban neighborhood.
Residents of the Property will use the current sub-standard Harper Puckett Road and Baxter Lane
for access. While it is anticipated that this portion of Baxter Lane will continue to be improved
first, Harper Puckett Road is not designed to City standards and cannot support a high-residential
development without creating dangerous driving conditions for those navigating the roads. The
20 Id.
21 Id.
22Id.
10
extensions of Laurel Parkway and Cattail Trail will not exist until the adjoining properties also are
developed or remaining rights-of-way are granted.
The location of the Property provides limited connectivity to the City’s existing transportation
system. Even with continued improvements to Baxter Lane, multi-modal transportation remains
difficult. The Staff Report acknowledges that, “[s]upport of multi-modal transportation is limited
today due to the rural character of Baxter Lane west of Cottonwood,” and “[d]ue to the property’s
location and still under development commercial nodes there are limited designations within
walking distance and bicycle infrastructure.”23 This exacerbates the increased reliance on
automobiles, contrary to the City’s goals to promote walkable and bikeable communities. The
proposed high density will only detrimentally impact the existing transportation system.
4) The Application Does Not Promote Compatible Urban Growth.
Zoning the Property as a mix of R-5 and R-3 is incompatible with the existing agricultural uses
and low-density residential developments. We disagree with the application’s assertion that the
“proposed zoning allows for consistent land use patterns that uphold the existing character of the
surrounding community,” while purportedly aiming to accomplish goals and themes in the
Community Plan.24 Just as the application fails to substantially comply with the Community Plan,
the proposed zoning promotes urban growth that is incompatible with the prevailing uses in the
area.
The properties to the west, north, and northeast are currently a mix of unzoned or County-zoned
lands. Lands to the west, north, and northeast are zoned Agricultural Suburban (AS) in the Gallatin
County/Bozeman Area Zoning District (the “Donut”). Land to the immediate west also is zoned
Rural Residential and Agricultural (RR/A) in the Four Corners Zoning District.
The AS Subdistrict is designated as low density. It is intended “for Agricultural Activities and
rural residential Uses on larger tracts of land, and to maintain and preserve the rural character and
pattern of development of outlying areas in compliance with the Gallatin County/Bozeman Area
Plan.”25 Allowed principal residential uses are limited to one single-family dwelling per parcel of
record.26 Density is restricted to one dwelling unit per 20 acres unless approved as clustered
development, in which case the minimum lot size is one acre.27
23 Staff Report at 36.
24 Application at 5.
25 Section 6.01, Gallatin County/Bozeman Area Zoning Regulation (amend. July 2018), available online at
https://gallatincomt.virtualtownhall.net/sites/g/files/vyhlif606/f/pages/do_02_22.pdf.
26 Section 6.02.2, Zoning Regulation.
27 Section 6.05, Zoning Regulation.
11
The RR/A Subdistrict also is designated as low density. It is intended “to promote and preserve
continued agricultural and rural Residential use of Property, including waterways, Open Space,
trails, and wildlife corridors as important elements of the Four Corners community.”28 The Sub-
District is determined to be residential in nature. The uses allowed by right include agricultural
activities, riding stables, minimal commercial uses, such as day cares and wind or solar towers,
and single-family residences up to and including fourplexes.29 Base density is restricted to no more
than 1.75 Units per acre.30
In contrast to the surrounding zoning, the applicant proposes R-5 and R-3, both residential high
density. The intent of the R-5 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.”31
These purposes are supposed to be accomplished by “providing for a mix of housing types,
including single and multi-household dwellings,” and “allowing offices and small-scale retail and
restaurants as secondary uses . . . .”32 Notably, “[u]se of this zone is appropriate for areas adjacent
to mixed-use districts and/or served by transit to accommodate a higher density of residents in
close proximity to jobs and services.”33
R-5 zoning is incompatible with the prevailing use in the Property’s vicinity. Apart from the
REMU to the direct south, the proposed R-5 is not in a “compact, walkable area,” that can serve
the residents’ needs. Further, the irregular areas in the northwest and northeast corners of the
Property are not adjacent to any walkable transportation network. These areas also are not adjacent
to any mixed-use district. None of the areas proposed for R-5 are currently served by transit that
can accommodate the high density of residents. Nor are these areas in close proximity to jobs and
services, even if the transportation network currently existed.
The intent of the R-3 district “is to provide for the development of one- to five-household
residential structures near service facilities within the city.”34 This purpose is to be accomplished
by “[p]roviding for minimum lot sizes in developed areas consistent with the established
development pattern,” and by “[p]roviding for a variant of housing types, including single
household dwellings, two to four household dwellings, and townhouses . . . .”35 Notably, the “[u]se
of the zone is appropriate for areas with good access to parks, community services and/or transit.”
28 Section 3.1, Four Corners Zoning Regulation (amend. May 7, 2024), available online at
https://www.gallatinmt.gov/sites/g/files/vyhlif606/f/pages/4c_05_24.pdf.
29 Id. at Section 3.2.
30 Id. at Section 3.6.
31 Staff Report at 40 (quoting Section 38.300.100.F, BMC).
32 Id. at 40-41.
33 Id. at 41.
34 Staff Report at 40 (quoting Section 38.300.100.D, BMC).
35 Id.
12
The Property is not near service facilities, most of the surrounding properties are undeveloped, and
the Property lacks good access to parks, community services, and transit.
In considering compatible urban growth, the Community Plan explains the City’s policies
“consistently emphasize quality of development, infill in a manner that allows for additional
intensification over time, connecting land development to other community priorities like
multi-modal transportation, cost efficient user-pays provision of facilities, and reasonable
incremental development at the City edge.”36
The application directly conflicts with these policies. The Community Plan’s identification of R-
3 and R-5 zoning districts as compatible zones within the Urban Neighborhood designation does
not mean these zones are actually compatible with the existing and prevailing uses in the area. The
Community Plan lists every residential district, including R-1, as a compatible use for lands
designated as Urban Neighborhood.37
The proposed R-3 and R-5 designations are not compatible with what exists today. Approving the
ZMA negates the goals to provide intensification over time, connection to multi-modal
transportation, and incremental development along the City’s edge. The purported “incremental
development” will place R-5 zoning directly adjacent to R-1 zoning and agricultural land.
The BMC defines “compatible development” as:
The use of land and the construction and use of structures which is in harmony
with adjoining development, existing neighborhoods, and the goals and
objectives of the city's adopted growth policy. Elements of compatible
development include, but are not limited to, variety of architectural design; rhythm
of architectural elements; scale; intensity; materials; building siting; lot and
building size; hours of operation; and integration with existing community
systems including water and sewer services, natural elements in the area,
motorized and non-motorized transportation, and open spaces and parks.
Compatible development does not require uniformity or monotony of architectural
or site design, density or use.38
Similarly, “compatible land use,” is defined in pertinent part as “[a] land use which may be virtue
of the characters of its discernable outward effects exist in harmony with an adjoining land use of
differing character.”39
36 Community Plan, pp. 75-76 (emphasis added).
37 Id. at 58.
38 Section 38.700.040, BMC (emphasis added).
39 Id.
13
The Staff Report remarks that compatible development does not require uniformity and “can be
different than what is already in place.”40 The concern is not that something “different” will be
developed adjacent to the existing agricultural and low-density developments. The concern is that
the proposed density is far out of character and harmony with the predominate uses existing in the
area.
Similarly, we do not disagree that the City’s and County’s growth policies “expect this area to
transition from rural to urban development.”41 That does not mean, however, that this transition
must be from low density to high density.
The application does not promote compatible urban growth and should be denied by the
Commission. Simply stating the proposed R-3 and R-5 Districts “are appropriate and compatible
with the surrounding neighborhoods,”42 does not make it so.
5) The Existing Character of the Area Is Not Suitable for the Proposed Zoning
Designations.
Likewise, the proposed mix of R-5 and R-3 is inconsistent with the existing low-density residential
and agricultural character of the surrounding properties. There also is an inadequate road network,
absent water and sewer infrastructure, and an inability to connect the Property to a multi-modal
transportation system.
Under this criterion, the Community Plan explains “both the actual and possible built environment
are evaluated.”43 It also “is appropriate to consider all the options allowed by the requested district
and not only what the present applicant describes as their intentions.”44 This is important because
the zoning runs with the land, but the owner does not. The applicant today could sell the Property
tomorrow and the intentions for the Property could change drastically. The only predictability
afforded our clients and surrounding landowners are the uses and standards set forth in the BMC.
The Community Plan provides helpful instruction to the Commission in considering this criterion,
laying out several factors for consideration. The Plan provides that, first, “the Commission must
consider the nature of the dominant uses allowed in a district compared with adjacent properties.”45
Next, “the Commission should consider differences in allowed intensity between the districts such
as different in height, setbacks, or lot coverage,” because “[t]he greater the difference the more
40 Staff Report at 38.
41 Id. at 41.
42 Application at 15.
43 Community Plan, p. 76.
44 Id. at 77.
45 Id.
14
likely conflict is possible.”46 Third, “the Commission must decide whether a larger community
benefit exists” from the proposed zoning, such as “locating a fire station where it will serve the
adjacent property but is different from the surrounding zoning.”47 Last, “the Commission must ask
what separates one zone from another.”48
These factors do not favor the proposed zoning. As discussed above, the existing AS and RR/A
designations are low density, intended to provide for agricultural activities and rural residential
uses of property.49 The R-5 and R-3 designations will create abrupt edges, especially in the
northwest and northeast corners, with no transition, on which dense multi-family housing can be
located. Our clients appreciate the need for housing in the community and accept that urban growth
will occur. However, this growth should be predictable and gradual, consistent with the
Community Plan.
Staff concludes, “[t]here is access to the City’s services, including streets, thus the site is able to
support a higher intensity of uses as allowed within the R-3 and R-5 zoning districts.”50 Yest, staff
also acknowledges the distance from and limited access to City services.51 The current road
network is subpar and not to standard for City streets. A property’s access to streets does not
mandate higher density and ignores the City’s goals for predictable and gradual growth.
The existing character of the surrounding area is not suitable for the proposed mix of R-5 and R-3
zoning. The high density is incompatible with the existing low-density residential and agricultural
uses. Future development with this ZMA will stress the inadequate county road system and
exacerbate existing safety concerns.
6) The Proposed Zoning Amounts to Spot Zoning.
Last, we believe the application is spot zoning that will solely benefit the applicant. The zoning is
out of character with the surrounding land uses and will detrimentally impact our clients.
Spot zoning is “the process of singling out a small parcel of land for a use classification totally
different from that of the surrounding area, for the benefit of the owner of such property and to the
detriment of other owners.”52 While not addressed directly in the BMC or statute, a court will
reverse a zoning approval if it amounts to impermissible spot zoning.
46 Id.
47 Id.
48 Id.
49 Section 6.01, Donut Regulation; Section 3.1, Four Corners Regulation.
50 Staff Report at 48.
51 Id. at 28, 36-37.
52 Hartshorne v. City of Whitefish, 2021 MT 116, ¶ 16, 404 Mont. 150, 486 P.3d 693 (quoting State ex rel. Gutkoski
v. Langhor, 160 Mont. 351, 353, 502 P.2d 1144, 1145 (1972)).
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Thus, governing bodies should consider the three-part framework known as the “Little Test” to
determine whether impermissible spot zoning will occur. This framework considers:
1) Whether the requested use is significantly different from the prevailing use in the area;
2) Whether the area in which the requested use is to apply is rather small; and
3) Whether the requested change “resembles special legislation designed to benefit only one
or a few landowners at the expense of the surrounding landowners or general public.”53
Spot zoning typically occurs when all three elements are present, although not all elements are
necessary for spot zoning to exist.54 The second and third elements are analyzed together.55 In
addition, substantial compliance with a growth policy “is especially relevant to the third factor.”56
Here, all three elements are present. The proposed zoning is significantly different from the
prevailing uses in the area. This element is thoroughly discussed above. The potential high-density
residential uses are incompatible and out of character with the surrounding low-density residential
and agricultural uses. The application’s statement is untrue that “[t]he permitted uses in the
proposed zoning districts are also permitted in the surrounding districts . . . .”57 The neighboring
AS, RR/A, and R-1 districts do not allow the high-density uses authorized in either the R-3 or R-
5 districts.
Second, the areas proposed for the R-5 zoning on the northwest and northeast corners are small,
odd-shaped configurations. These areas directly conflict with the adjacent vacant and agricultural
lands. There also is no need for the R-3 designation adjacent to the existing R-1 designated Baxter
Meadows Subdivision. The public comment and recent headlines confirm the community is in
need of single-family housing.58 There is an excess of high-density development with a reported
vacancy rate between 12 to 20 percent.59 The applicant concludes “the creation of new housing on
this parcel will help benefit the surrounding neighborhoods by providing more housing options to
the area, which will alleviate the pressures associated with the growing demand for housing in the
immediate vicinity.”60 It is perplexing how creating new housing on an adjoining Property will
benefit the surrounding landowners, who are not in need of housing and whose surrounding roads
will become further congested and unsafe.
Third, zoning this small area lends itself to special legislation at the expense of the surrounding
landowners. Only the applicant will benefit from the application’s approval. While the fact that
53 North 93 Neighbors, Inc. v. Bd. of Co. Commrs., 2006 MT 132, ¶ 65, 332 Mont. 327, 137 P.3d 557 (quoting Little
v. Bd. of Co. Cmmrs., 193 Mont. 334, 346, 631 P.2d 1282, 1289 (1981)).
54 Hartshorne, ¶ 16 (quoting Little, 193 Mont. at 346, 631 P.2d at 1289).
55 Id. (quoting Boland v. City of Great Falls, 275 Mont. 128, 134, 910 P.2d 890, 894 (1996)).
56 Id. (quoting Helena Sand & Gravel, Inc. v. Lewis & Clark Cty. Planning & Zoning Commn., 2012 MT 272, ¶ 31,
367 Mont. 130, 290 P.3d 691).
57 Application at 16-17.
58 See, e.g., Montana Free Press, “Has Bozeman’s rental market finally flipped?” available online at
https://montanafreepress.org/2025/06/23/has-bozemans-rental-market-finally-flipped/.
59 Id.
60 Application at 17.
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one entity owning the Property does not automatically create spot zoning, “the numbers of separate
landowners affected by the rezoning directly relates to whether the zoning constitutes special
legislation designed to benefit only one person.”61 Here, there is one landowner benefitted, and
multiple adjacent landowners opposing the development.
The applicant contends “[t]he proposed zoning is the same zoning as the nearby properties, and
therefore it is difficult to foresee this proposed zoning, respectively, will negatively impact the
surrounding landowners.”62 This is untrue for three sides of the Property, to its west, north, and
east, and calls into question the applicant’s sincerity in responding to the ZMA criteria. The
application’s final statement is telling, in concluding: “Preservation of the existing property will
be the result of the requested zoning, which will ensure the existing character of this area will be
maintained.”63 The ZMA does not preserve the existing property or the existing character of the
surrounding area.
The inconsistency with the Community Plan further demonstrates the application amounts to spot
zoning. The proposed designations do not substantially comply with the Community Plan’s goals
for gradual, predictable, and compatible urban growth, joined with enhanced connectivity for the
motorized and nonmotorized transportation systems. The application is spot zoning and should be
denied.
Requested Relief
We respectfully request the Commission deny the ZMA. The applicant cannot satisfy its burden
under § 76-2-304, MCA. High-density residential development in this location is incompatible
with the Community Plan. The ZMA does not provide gradual or predictable transition in density
from the low density to the east, covering our clients’ properties, to the high density to the west
proposed on the Property.
If the applicant or a future landowner develops the Property, there is limited connectivity for those
residing on the Property, resulting in heavy dependence on automobiles and an outdated and
inadequate county road network. The significant increase in traffic will negate public health and
safety and further negate the transportation system for existing users. The mixed R-5 and R-3
zoning is incompatible and out of character with the surrounding uses. Consequently, the ZMA
serves only as special legislation designed to benefit the applicant at the expense of the surrounding
landowners.
Our clients desire most for the Commission to deny the application. However, we realize the City’s
growth is inevitable and understand the City’s need to balance the applicant’s property rights. Our
clients do not oppose growth or development on the Property; they seek predictable and compatible
urban growth.
61 North 93 Neighbors, ¶ 68 (citing Boland, 275 Mont. at 134, 910 P.2d at 894).
62 Application at 17.
63 Id.
17
To provide the Commission with a possible alternative, we request that, should you decline to deny
the application, the Commission exercise its legislative authority and zone the Property at a lower
density. Section 38.260.120.D.2, BMC, states:
If the city commission intends to adopt a zoning designation different than that
applied for, the hearing will be continued for a minimum of one week to enable the
applicant to consider their options and whether to protest the possible action. In the
case of protest against a change to the zoning map by the applicant the same
favorable vote of two-thirds of the present and voting members of the city
commission is required as for any other protested zoning action.
If the Commission does not deny the ZMA outright, we respectfully ask that you indicate your
intent to designate the southern portion of the property adjacent to Baxter Lane (proposed as R-5)
as R-3 (Residential Medium Density) and the remainder of the Property as R-1 (Residential Low
Density).
This option allows for split zoning similar to that proposed by the applicant, with the R-3 zoning
located along the REMU designation to the south. The R-1 zoning would then mirror the R-1 to
the east and transition more appropriately to the rural residential and agricultural properties to the
west, north, and northeast.
We appreciate your review of this comment. We look forward to answering any questions you
may have during your hearing on the ZMA.
SINCERELY,
GALLIK & BREMER, P.C.
Erin L. Arnold, Esq.
Erin@galliklawfirm.com
Cc: gsullivan@bozeman.net
Krischke@bozeman.net
Clients