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HomeMy WebLinkAbout11-17-25 Public Comment - G. Poole - Site Plan #25238From:Geoffrey Poole To:Bozeman Public Comment Subject:[EXTERNAL]Site Plan #25238 Date:Monday, November 17, 2025 11:43:28 AM Attachments:Supplemental comments 25238.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. Please accept my attached comments regarding the upcomingapproval or denial of Site Plan #25238. Geoffrey PooleBozeman, MT Erin George Director of Community Development Bozeman, MT Dear Erin: In my prior public comment submitted a few days ago, I incorporate by reference the public comments that I submitted regarding Site Plan #22047, and those submitted on behalf of Tim and Nancy Swanson and me by our attorney. Recognizing that you were not the Director at the time, I have compiled this attached summary list of those past comments to aid in your review. (Note that requirements of 2022 BMC 38.430 referenced in the attached summaries have been replaced by BMC 38.440. Specifically, the requirements of the commonly cited 2022 BMC 38.430.040.A.3.d are now found in BMC 38.440.030 and 2022 BMC 38.430.080 has been moved to BMC 38.440.050.) Although this attached summary list is long and intended to save you time, it does not take the place of comments submitted for #22047. Rather, it is an attempt to help you understand the overall scope of the problems with the review and initial approval of Site Plan #22047 without having to dredge through our past comments. Clearly, Site Plan #22047 is in the past. So it might see odd to submit comments that focus on that review process. However, all of the comments listed below – which were complied for Site Plan #22047 – still apply to Site Plan #25238. The issues remain unaddressed. Both the City Staff (in 2020 concept review) and the City Commission (upon appeal) have established that the terms of the PUD are still binding and that the proposed layout of the buildings and parking lots (in #22047 and now again in #25238) is a violation of the Block Frontage Standards. Yet here we are – as the occupants of neighboring residences – fighting again to get planning staff to acknowledge and act on those those requirements. If planning staff are either not empowered to – or are simply unwilling to – cull out development proposals that contain obvious violations of the spirit and the letter of the BMC, then the system is broken. It is the staff’s job to evenhandedly apply the BMC. The process should not require continuous vigilence from neighbors. We have lives and jobs of our own to attend to, and count on the City to ensure compliance with the Unified Development Code. Yours is the department of “Community Development.” You don’t have to look any further than the recent election to see how unhappy the “Community” is with the nature of the “Development.” I believe the “Community” has conclude that planning staff prioritize “Development” over “Community.” From the outside looking in, it seems to me that the staff has a practice of bending the Unified Development Code in ways that are disingenuously permissive. At miminum, the facts of our case (summarized below and summitted in my most recent comments) provide evidence in support of this view. Please stop the cherade begun by Site Plan #22047 and now continued by #25238. Any hardship experienced by the applicant is self inflicted. All of the code violations and problems with this development stem from one inconvenient truth: the application attempts to pack more commercial development onto a small lot than is code-compliant under the governing residential PUD. From my neighbor’s and my vantage point, the Department of Community Development has, so far, been entirely complicit in pursuit of that agenda. I ask you to restore our lost trust in the process. As you make your decision, I hope you will keep in the forefront of our mind the following facts that we demonstarted to the City Commission on appeal of #22047 and, in recent public comments regarding #25238, we have now demonstrated to you: 1.The official record of the PUD’s binding terms was the PUD’s Approved Final Plan. 2.The Approved Final Plan consisted of the Final PUD Application and any conditions of its approval. 3.Because the Sundance Springs PUD was phased, the terms of the Final PUD Application were required to be outlined in a Master Plan and Development Guildelines (1992 BMC.18.54.080.D). 4.Before the phased PUD could be approved: “The City Commission must determine that the proposed Master Plan and Development Guidelines are provided in sufficient detail to support a finding that the phase PUD will comply with all requirements for PUD approval if developed in accordance with the apporved Master Plan and Development Guidelines.” 1992 BMC 18.54.080.C 5.“All requirements for PUD approval” were outlined in 54 evaluation critera presented in 1992 BMC 18.54.100.E and all criteria had to be met as part of the evaluation process (1992 BMC 18.54.100.C) 6.The Approved Final Master Plan and Approved Final Development Guidelines, therefore, must be enforced for the PUD to comply with the PUD approval requirements. 7.The PUD’s Approved Final Plan – consisting of the Approved Final Master Plan, Approved Final Development Guidelines, and any conditions of approval – has been lost. 8.The City claims that review can proceed, in part because the terms of the Approved Final Master Plan survive in the Master Plan map from Z-9812 and the terms of the Approved Final Development Guidelines survive in the Commercial Covenants. Since the City claims that the Master Plan map is the Approved Final Master Plan and that the terms of the Approve Final Development Guidlines are in the Covenants, I would ask that you please enforce the terms of the Master Plan map and Covenants, as is required by current BMC The records shows that Z-22047 was not complient with the PUD or the Block Frontage Standards. The attached summaries of the problems with #22047 describe code violaitons that remain for the remarkably similar #25238. In disapproving the application, I would ask that you please reinforce to all interested parties that the restrictions on the site limit development to a single-story building of 5000 square feet or less with the primary facade addressing the street. The parking areas must be to the side or in back of the building and must be screened from South 3rd and all adjacent R-S zoned property with a 10’ wide continuous landscaping screen 4’ to 6’ in height and with no encroachment into setbacks. Thank you again for your kind consideration of my comments. Geoffrey Poole Bozeman, MT Summary of Comments submitted regarding Z-22047 City lacks the required Approved Final Plan for the PUD, violating BMC 38.430.040.A.3.d which mandates all development approvals be based on the approved final plan The City of Bozeman has lost the Approved Final Plan for the Sundance Springs Planned Unit Development (PUD), documented as Z-9812, along with the official record of approval contained within that application folder. This loss constitutes a fundamental legal impediment to the City's approval of Site Plan #22047. BMC 38.430.040.A.3.d unambiguously requires that all development reviews under a PUD be based on compliance with the PUD's Approved Final Plan, and the BMC makes no provision for substituting other documents in its place. Without the Approved Final Plan, the City lacked the requisite information to render a decision, as the City could not know the complete requirements of the PUD, nor could the applicant meet its obligation to demonstrate compliance with the Approved Final Plan. The City's attempt to substitute other documents for the missing Approved Final Plan violated the clear and binding requirements of BMC 38.430.040.A.3.d, as well as related provisions in BMC 38.100.050.A, BMC 38.100.080.A, and BMC 38.430.080, all of which require that Site Plan #22047 comply with all development requirements of the PUD's Approved Final Plan. Because the terms of the PUD are unknown without the Approved Final Plan, the approval of Site Plan #22047 is illegal and must be reversed. The Master Plan Objectives section listed in Z-95125 and P-9539 Table of Contents have been removed from both documents, indicating possible document tampering The Table of Contents for both Z-95125 (the Preliminary PUD application) and P-9539 (the companion preliminary subdivision application) explicitly list "Master Plan Objectives" as part of Tab 1 (Introduction), yet this entire section has been physically removed from both documents. The Master Plan Objectives would have contained detailed descriptions of the PUD's binding requirements under 1992 BMC 18.54.080.D.1, establishing the specific terms governing development. The fact that the same section is missing from both independent documents suggests possible tampering with the City's records. This removal is particularly significant because it occurred after the documents were approved and filed, and the missing Master Plan Objectives section would have provided authoritative guidance on the PUD's requirements at a time when the City claims uncertainty about those requirements. The disappearance of this critical section, combined with the loss of the Approved Final Plan, raises serious questions about the integrity and completeness of the City's record of the PUD. The City substituted documents for missing Approved Final Plan without legal authority, violating City Charter Article II Section 2.11.6 reserving zoning amendment authority to Commission The City's decision to substitute other documents for the missing Approved Final Plan violates the City Charter's fundamental allocation of governmental authority. City Charter Article II, Section 2.11.(6) reserves to the City Commission the exclusive authority to "adopt and amend zoning, subdivision, and other land use regulations." Similarly, Section 2.11.(7) reserves to the Commission the power to amend ordinances. When the Director of Community Development unilaterally selected which documents to substitute for the missing Approved Final Plan—choosing to enforce only certain Conditions of Approval while ignoring the Development Guidelines and Master Plan requirements from the Approved Preliminary Plan—the Director effectively amended the PUD's binding zoning terms without Commission authorization. This administrative recreation of the PUD's requirements usurps the Commission's charter-mandated authority and violates BMC 38.430.040.A.3.d.(2)(a), which requires Commission approval for any amendments to a PUD. The City Attorney's May 19, 2023 letter to Brian Gallik claiming authority to substitute documents cites no legal basis for this unprecedented administrative amendment power. Sundance Springs is a Phased PUD per 1992 BMC 18.54.080.A, requiring a Master Plan and Development Guidelines as binding PUD terms The Sundance Springs PUD was explicitly submitted and approved as a phased PUD under 1992 BMC 18.54.080.A.3, as documented in the PUD application Z-95125 and confirmed in public records including Development Review Committee minutes from September 1995. Under this type of phased PUD, the 1992 Zoning Ordinance required only two elements: a Master Plan (per 18.54.080.D.1) and Development Guidelines (per 18.54.080.D.2). Since the application contained no request for approval of any specific phase of development, these two required elements—the Master Plan and Development Guidelines—constitute the entirety of the binding terms governing all development under the PUD. The City Commission vetted, amended, approved, and ordered both the Master Plan and Development Guidelines when it approved Z-95125 in January 1996, making these documents lawfully adopted development rules that must be enforced as the binding terms of the PUD. Covenants (Z-95125 Tab 8) ARE the PUD's Development Guidelines per 1992 BMC 18.54.080.D.2.h, not merely private agreements, and must be enforced by the City during Site Plan review The document labeled "Covenants and Development Guidelines" under Tab 8 of the Approved Preliminary Plan (Z-95125) serves a dual legal role that the City has ignored. According to 1992 BMC 18.54.080.D.2.h, protective covenants submitted as part of a PUD application become part of the PUD's required Development Guidelines. The City's own records confirm this: the title explicitly identifies the document as "Covenants and Development Guidelines," not merely "covenants." These Development Guidelines were vetted, amended, approved, and ordered by the City Commission in January 1996 as a required element of the phased PUD, making them lawfully adopted development rules that must be enforced under current BMC provisions including 38.100.050.A, 38.430.040.A.3.d, and 38.430.080. The City's position that these are merely "private agreements" contradicts both the legal requirements under which the PUD was submitted and the explicit terminology used in the approved plan itself. 1995 Staff Report for Z-95125 explicitly stated that Site Plan review would ensure compliance with the Development Guidelines (Covenants), providing assurance to City Commission and the public The November 1995 Staff Report for Z-95125 provided explicit assurances to the City Commission and the public regarding enforcement of the Development Guidelines. On page 24, in the section titled "Covenants and Development Guidelines," Planning Staff unambiguously stated: "Site Plan review will occur for all development within the neighborhood services area, and that review will ensure compliance with the Guidelines." This staff assurance was a critical element of the PUD approval process, as it informed the City Commission's decision to approve the PUD and shaped public expectations about how commercial development would be regulated. The City's current refusal to enforce these same Development Guidelines during review of Site Plan #22047 directly contradicts the explicit commitment made by Planning Staff to the Commission and community at the time of approval, undermining the foundation upon which the PUD was approved. The Master Plan Map (dated April 08, 1997, found in Z-9812) has been identified by the City as the Approved Final Master Plan. Therefore, the map is a binding element of the Approved Final Plan showing building locations, sizes, and uses that must be enforced. | The Master Plan Map stamped April 08, 1997, and found in the Z-9812 folder, constitutes a binding element of the PUD's Approved Final Plan. Under 1992 BMC 18.54.080.D.1, the Master Plan's role is to show "proposed conditions pertaining to such elements as building locations, open spaces, vehicular and pedestrian circulation, and boundaries of the individual phases of the PUD." This map—which was stamped after preliminary approval in 1996—establishes the specific number, location, size, and designated use of buildings on Commercial Lot #2. Current BMC 38.430.040.A.3.d.(2) mandates that substantive changes to the specified number, size, or location of buildings shown on the Master Plan require a formal amendment to the PUD approved by the City Commission in a public hearing. Site Plan #22047 proposes changes that directly violate these binding Master Plan requirements, yet the City has proceeded without the required PUD amendment process. The Master Plan designates Commercial Lot #2 for a single one-story building housing a convenience store/Village Store (retail use only), not a restaurant or multiple buildings' | Multiple authoritative sources from the PUD record consistently confirm that the Master Plan designated Commercial Lot #2 for a single one-story convenience store with retail use only. The Market Study ordered by the City Commission describes a single one-story building allocated to Lot #2 with designated use as a convenience store. The Master Plan Map labels the building as "Village Store," which under the 1992 B-1 Neighborhood Services District zoning limited uses to retail only. The 2020 Concept Review (CONR-20298)—compiled while the Approved Final Plan was still available—explicitly states the site is "designated for a 'Village Store' on the Sundance Springs Master Plan map." Real estate listings described the lot as "MASTER PLANNED FOR A CONVENIENCE STORE." Site Plan #22047's proposal for two two-story buildings housing brewery, restaurant, and office uses fundamentally contradicts these binding Master Plan designations and constitutes a major modification requiring PUD amendment, not administrative approval. Site Plan proposes two buildings totaling 9900+ sq ft plus 800+ sq ft outdoor patio violating the Master Plan which shows that approved use was a single one-story 5,000 sq ft building without an outdoor dining patio. | Site Plan #22047 proposes a total of approximately 21,000 square feet of commercial development—including 12,000+ square feet of leasable space in two buildings, 3,000 square feet of outdoor patio areas, and 6,000 square feet of basement space—fundamentally violating the Master Plan's designation of a single one-story 5,000 square foot building. The 1992 BMC Section 18.29.020.A imposed a 5,000 square foot cap on gross floor area for buildings in the B-1 Neighborhood Services District, and the Master Plan reflected this limitation. Instead, the proposed development includes two buildings each exceeding 6,000 square feet, creating a total development more than four times the size contemplated by the Master Plan. This massive expansion generates a parking demand of 68 spaces and represents a fundamental change to the character and scale of development that was approved by the City Commission, requiring PUD amendment rather than administrative approval. The 1996 City Commission Condition of Approval #29 requires Market Study showing 50% of business from vicinity residents, or residential development alternative; the proposed development violates Market Study assumptions making 50% conclusion invalid' | Condition of Approval #29, issued in the City Commission's January 22, 1996 Findings of Fact and Order, required a Market Study demonstrating that 50% of business would come from vicinity residents, with an explicit alternative: if this threshold could not be met, the lot could be developed residentially. The November 1997 Market Study in Z-9812 reached the 50% conclusion based on specific assumptions about the development – namely, a single one-story convenience store serving neighborhood retail needs. Site Plan #22047 completely shatters these assumptions by proposing brewery and restaurant uses in two large two-story buildings totaling over 21,000 square feet, uses that are designed to draw customers from well beyond the vicinity. By violating the foundational assumptions of the Market Study, the proposed development invalidates the 50% conclusion, thereby triggering Condition #29's residential development alternative. The City has ignored this condition entirely, failing to verify compliance with the Commission's explicit order. The PUD’s Development Guideline (the requirements contained the Covenants) establish 1992 Bozeman Zoning Code as minimum development requirements through Introduction language, requiring compliance with 1992 B-1 Neighborhood Services District standards The Introduction to the Covenants and Development Guidelines (Tab 8 of Z-95125) explicitly establishes the 1992 Bozeman Zoning Code as the minimum development requirements for the commercial lots, stating that the covenants "detail how the Neighborhood Services Property within the Sundance Springs Subdivision are to be developed and maintained beyond the minimum requirements of the Bozeman Zoning Code which exists at the date of the execution of this document." This language—approved by the City Commission in January 1996 and executed in March 1998—locks in the 1992 B-1 Neighborhood Services District zoning standards as the baseline for all development. Under BMC 38.100.050.A, when lawfully adopted rules conflict, the most restrictive requirements govern. The 2020 Concept Review (CONR-20298) correctly identified that the 1992 zoning applies to this site. Yet the City has ignored this requirement during review of Site Plan #22047, applying only current zoning standards and thereby allowing numerous violations of the 1992 code requirements that are binding under the PUD. Restaurant size exceeds B-1 zoning maximum The proposed restaurant in Site Plan #22047 flagrantly exceeds the B-1 zoning district's size limitations. BMC Table 38.310.040.A, footnote 3, limits restaurants in the B-1 district to either 1,500 square feet or 20% of the building's gross floor area, whichever is less. The west building has 5000 square feet of gross floor area, making the 20% limit only 1,000 square feet. Yet the proposed restaurant occupies 1,500+ square feet of floor space. This oversizing fundamentally transforms the character of the permitted use and requires addressing through PUD amendment, not administrative approval. Outdoor patio for dining/drinking prohibited by PUD's 1992 B-1 zoning (Section 18.28.020.A) which requires all business activities be enclosed within buildings The 2,100+ square foot outdoor patio proposed for dining, drinking, and potentially live music directly violates the 1992 B-1 zoning requirements established as minimum standards by the PUD's Development Guidelines. Section 18.29.020.A of the 1992 BMC explicitly requires that all business activities in the B-1 Neighborhood Services District be "enclosed within a building," and Section 18.28.010 emphasizes that the district is designed to maintain residential character. The outdoor patio is specifically designed to facilitate outdoor business activities—dining, alcohol service, and entertainment—that are incompatible with the residential neighborhood and the tranquil open space used for quiet recreation. These outdoor activities would impact neighboring residences with noise, light, and activity that violates Covenant 3.3's prohibition on nuisances and fundamentally contradicts the 1992 code's requirement that business activities be contained within buildings to protect the residential character of the area. The City's custom and practice has been to enforce PUD covenants as legally binding requirements; a 2004 case shows City enforced covenant setbacks describing violation as 'illegal encroachment' The City's established custom and practice has been to enforce the Sundance Springs PUD covenants as legally binding requirements, directly contradicting its current position that the covenants are merely "private agreements." In 2004, when a residential developer violated a setback established in the Sundance Springs Covenants, the City took formal enforcement action. The July 19, 2004 Staff Report for Z-040148 described the violation as an "illegal encroachment into a required rear yard" and identified the Covenants as the source of the "legally required setbacks" that were violated. The City required the developer to appear before the City Commission and obtain a formal amendment to the PUD to remedy the covenant violation. This enforcement action—taken when the Approved Final Plan was still available for consultation—demonstrates that the City's established practice has been to treat Sundance Springs covenant violations as illegal violations of legally required standards. The City's current refusal to enforce the same covenants against the commercial development in Site Plan #22047 represents an arbitrary reversal of this longstanding practice and creates an unjustifiable double standard. The Commercial Lot Owners Association (NSOA/CLOA) involuntarily dissolved December 1, 2003, cannot be legally reconstituted per Montana Code 35-6-201(5); no mechanism exists for required Building and Landscape Review Committee approval The Neighborhood Services Owners Association (NSOA), also known as the Commercial Lot Owners Association (CLOA), was involuntarily dissolved by the State of Montana on December 1, 2003, according to Secretary of State records. Montana Code Annotated 35-6-201(5) prohibits reinstatement of corporations dissolved for more than five years, a restriction confirmed in Mont. Earth Res. P'ship v. N. Blaine Estates, 1998 MT 254. Since the association was dissolved over 19 years ago, it cannot be legally reconstituted under Montana law. This creates a fundamental legal impossibility: the PUD's Covenants and Development Guidelines require approval from the Building and Landscape Review Committee (BLRC), which can only legally exist as a committee of the NSOA. Without the NSOA, neither the Board nor the BLRC can legally exist or function. Therefore, even if the City were to enforce the covenant requirements, Site Plan #22047 could never receive the required NSOA/BLRC approval, making development under the current covenant structure legally impossible. Applicant has constructive notice and voluntarily agreed to all PUD requirements per Covenant Article 16.1; claims of unclean hands or bad faith apply to applicant not neighbors The applicant has constructive notice of all PUD requirements and voluntarily agreed to be bound by them upon purchasing the property. Covenant Article 16.1 (Constructive Acceptance) explicitly provides that "every person or entity who now or hereafter acquires or owns any interest in the [commercial] Property...shall be conclusively deemed to have consented and agreed to every covenant, condition, and restriction imposed" by the PUD's Covenants and Development Guidelines. The applicant's attorney's December 29, 2022 letter ironically claims that neighbors lack good faith and have unclean hands while seeking to avoid covenant requirements—yet it is the applicant who knowingly submitted a site plan violating dozens of covenant provisions after receiving constructive notice. The applicant cannot claim to be a good faith purchaser while simultaneously violating the very covenants to which they voluntarily agreed upon purchase. If anyone is acting in bad faith with unclean hands, it is the applicant who seeks to escape voluntarily-accepted obligations that were fully disclosed through the public record and covenant documents. 2020 City Development Review Comments (Application 20-298, CONR review by Susana Montana) clearly identified 1992 B-1 zoning, Village Store designation, and Master Plan requirements; developer chose to disregard The City's October 2020 Development Review Comments for Application No. 20298 (CONR review by Senior Planner Susana Montana) provided clear guidance to the developer identifying the applicable PUD requirements. The 2020 review specifically stated that the site is subject to "B-1 pursuant to the 1998 Sundance Springs Planned Unit Development Master Plan" and noted that "the site is designated for a 'Village Store' on the Sundance Springs Master Plan map." This 2020 concept review was compiled when the Approved Final Plan was still available for consultation, making it an authoritative statement of the PUD's requirements. The review also identified applicable setback requirements and other PUD zoning standards. Despite receiving this clear City guidance in 2020, the applicant chose to disregard it and proceeded to develop Site Plan #22047 with two large brewery/restaurant buildings that blatantly contradict the Village Store designation and 1992 B-1 zoning identified in the City's own contemporaneous review. The City's current reversal of this 2020 position contradicts its own recent authoritative guidance to the developer. BMC 38.100.050.A requires most restrictive requirements govern; where PUD and current UDC conflict, more restrictive PUD terms (1992 zoning, Master Plan, Development Guidelines) must apply BMC 38.100.050.A establishes a clear rule for resolving conflicts between different regulatory requirements: "Wherever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules or regulations...the most restrictive requirements, or those imposing the higher standards, will govern." The PUD's Master Plan and Development Guidelines are lawfully adopted rules that were vetted, amended, approved, and ordered by the City Commission. The Development Guidelines explicitly establish the 1992 Bozeman Zoning Code as the minimum requirements, stating that the covenants "detail how the Neighborhood Services Property within the Sundance Springs Subdivision are to be developed and maintained beyond the minimum requirements of the Bozeman Zoning Code which exists at the date of the execution of this document." When the 1992 B-1 zoning requirements conflict with current zoning (such as smaller building size limits, stricter setbacks, higher parking requirements, or prohibition on outdoor business activities), the more restrictive 1992 requirements must govern under BMC 38.100.050.A. The City violated this mandatory provision by applying only current zoning standards while ignoring the more restrictive PUD requirements. BMC 38.100.080.A places burden on applicant to demonstrate compliance with all applicable standards; applicant has failed to meet this burden BMC 38.100.080.A explicitly states: "It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations." This provision places the burden of proof squarely on the applicant to affirmatively demonstrate that the proposed development complies with every applicable requirement—including the PUD's Master Plan, Development Guidelines, 1992 B-1 zoning standards, and current BMC provisions. The applicant has fundamentally failed to meet this burden. By knowingly submitting a site plan that violates dozens of covenant provisions, exceeds Master Plan building size and number limits, contradicts the Village Store designation, violates 1992 B-1 setback and parking requirements, and proposes prohibited outdoor business activities, the applicant cannot demonstrate compliance with applicable standards. The applicant's failure to carry this mandatory burden of demonstration requires denial of the application under BMC 38.100.080.A, yet the City approved the non-compliant plan anyway, effectively shifting the burden from the applicant to the City and abandoning the code's fundamental requirement. The City''s ''absurd result'' argument lacks legal authority and ignores Condition of Approval #29 providing residential development alternative' The City Attorney's May 19, 2023 letter claims that requiring the Approved Final Plan would create "the absurd result that this property could never be developed." This argument fails on multiple grounds. First, it cites no legal authority permitting the City to ignore explicit BMC requirements simply because compliance would yield an outcome the City considers undesirable. BMC 38.100.30 states that Chapter 38 regulations "apply to all private and public lands" without exception for "absurd results." Second, the argument presents a false dichotomy by ignoring lawful development alternatives. Condition of Approval #29 explicitly provides that if commercial development is not allowed during Site Plan Review, the lot can be developed residentially with up to six additional single-family lots. This Commission-ordered alternative completely undermines the City's claim that the property "could never be developed" if BMC requirements are enforced. Further, the code allows for amendment to the PUD to allow for the types of changes sought by the applicant. The City's position is based on a logical fallacy—presenting only two options (approve the non-compliant commercial plan or allow no development) while ignoring alternatives that comply with all BMC requirements. City has reversed its position on PUD enforcement after losing Approved Final Plan; historical enforcement recognized Development Guidelines and Master Plan as binding The City maintained a consistent position on the Sundance Springs PUD's requirements for 25 years (1995-2020), enforcing the Development Guidelines and Master Plan as binding legal requirements. The historical record demonstrates this consistency: the 1995 Staff Report assured the Commission that Development Guidelines would be enforced; the 2004 enforcement action treated covenant violations as "illegal encroachment"; and the 2020 Concept Review (CONR-20298) reaffirmed that the site is subject to 1992 B-1 zoning pursuant to the 1998 PUD Master Plan and designated for a "Village Store." Only after the City lost the Approved Final Plan did it reverse this longstanding position, suddenly claiming the Development Guidelines are "private agreements" and the Master Plan requirements are not binding. This reversal contradicts the City's own historical enforcement practices and positions taken when the authoritative Approved Final Plan was available for consultation. The timing of this reversal—occurring only after the loss of the controlling document—strongly suggests the City is exploiting its own negligence in losing the Approved Final Plan to avoid enforcing requirements it historically recognized as binding. Nearly 200 public comments submitted opposing approval (194 requesting denial, only 3 supporting), reflecting community values of BMC compliance, PUD enforcement, tranquil open space, and public safety The public comment record overwhelmingly demonstrates community opposition to Site Plan #22047. Of 197 public comments submitted, 194 requested denial of the application while only 3 supported approval—a rejection rate of 98.5%. This is not merely a matter of numbers; the comments consistently articulated specific community values that the City claims to respect. Common themes included: (1) compliance with the BMC and terms of the PUD, (2) enforcement of the Development Guidelines and Master Plan that were relied upon when the PUD was approved, (3) protecting the tranquility of adjacent open spaces used for quiet recreation by City residents, (4) safety concerns caused by excess parking demand forcing on-street parking that could block emergency vehicles, and (5) ensuring peaceful enjoyment of neighborhood residences and protecting the rural/agricultural neighborhood character. The City Attorney's letter claimed that enforcing PUD terms would not reflect "the community's needs and values today," yet 194 public comments demonstrate that the community's actual needs and values demand enforcement of the PUD requirements, not their abandonment. Development is destination restaurant that will attract city-wide traffic, not walkable neighborhood service as B-1 zoning intends; contradicts small-scale neighborhood-serving purpose Site Plan #22047 proposes a destination brewery and restaurant designed to attract city-wide traffic, fundamentally contradicting the B-1 Neighborhood Services District's intent to provide small-scale, walkable services to nearby residents. The development includes approximately 4,700 square feet of restaurant/brewery space (1,500 sq ft indoor serving, 2,000 sq ft outdoor patio, 900 sq ft kitchen, 300 sq ft brewery) in a two-story glass tower with large outdoor dining spaces—a scale and character designed for destination dining and drinking rather than neighborhood convenience. BMC 38.300.110 defines the B-1 district's intent as serving neighborhood needs, not attracting regional customers. It is implausible that the PUD's 141 residential lots could support 50% of business at this proposed scale, as required by Condition of Approval #29. The development's resemblance to destination breweries like MAP Brewing and Mountains Walking Brewery confirms its character as a regional attraction rather than a neighborhood service. This destination-oriented development violates the fundamental purpose of the B-1 zoning, the Market Study assumptions, and the small-scale Village Store concept approved in the Master Plan. Dumpster location violates BMC 38.520.070 proximity requirements and creates poor pedestrian experience by occupying trail gateway as the face and first encounter of the development along a half-mile trail approach The dumpster placement in Site Plan #22047 violates BMC 38.520.070 refuse enclosure requirements and creates an egregiously poor pedestrian experience. The dumpster is sited to occupy the trail gateway—the first encounter for pedestrian users approaching from Sundance Springs via the trail system. For residents and visitors using the walkable/bikable trail approach (approximately half a mile from the residential neighborhood), the dumpster becomes their initial visual and olfactory introduction to the development. This placement directly contradicts the Block Frontage Standards' purpose of "creating a comfortable walking environment" and the departure narrative's own claims about enhancing the pedestrian experience. Rather than welcoming trail users with attractive storefronts or landscaping, the site plan greets them with a dumpster enclosure positioned at the critical junction where the trail system connects to the East Building entrance. This hostile pedestrian experience epitomizes the development's fundamental failure to integrate with the surrounding walkable neighborhood and trail network as B-1 zoning intends. Development requires multiple special use permits for outdoor dining and alcohol service that were improperly deferred contrary to City's own 2020 review instructions Site Plan #22047 requires multiple special use permits for outdoor dining and outdoor alcohol service under BMC 38.230.100, 38.230.120, and 38.230.110.e-i, yet these required permits were improperly deferred during the approval process. The 1992 B-1 zoning (Section 18.28.020.A) requires all business activities to be enclosed within buildings, making outdoor dining and alcohol service conditional uses requiring special approval. The City's own Community Development Department Comments specifically instructed that special use permits would be required for these outdoor activities, yet the approval process deferred addressing these requirements, allowing approval of the site plan with outdoor patios without the legally mandated special use permit review. This procedural violation is particularly significant because the special use permit process includes specific approval criteria under BMC 38.230.110.e-i designed to protect neighboring properties from impacts—exactly the concerns raised by 194 public comments. By deferring the special use permit requirements, the City bypassed critical protections and approved outdoor activities that may not meet the required criteria for special use permits. Buildings actually front parking lots, not streets or trails as claimed; unlabeled building entrances obscure that all primary access is from parking areas Despite the departure narrative's claims that buildings front streets and trails, the buildings actually front parking lots, with all primary access provided from parking areas rather than from walkable frontages. Each building has four doorways, but these entrances are unlabeled on the site plan, obscuring the fact that all main entrances connect via sidewalks to the parking lots, not to street or trail frontages. BMC 38.510.030.C.1 defines a landscape block frontage as one where "primary pedestrian access to the building and the majority of building entrances address the block frontage"—a standard these buildings fail to meet because the majority of functional access is from parking areas. City Commission intended all future construction be controlled by the Master Plan and the Covenants and Development Guidelines to ensure neighborhood services remain in scale with residential development The City Commission approved the Sundance Springs PUD based on explicit assurances that all future construction would be controlled by the Covenants and Development Guidelines to ensure compatibility with the residential neighborhood. At the November 20, 1995 public hearing (documented on pages 25 and 27 of the minutes), architect Dan Kamp testified to the Commission and the public that the PUD included "substantial architectural guidelines" that would control all future development. The Z-95125 Application Criteria responses specifically stated that "all future construction [would be] controlled by" the Covenants and Development Guidelines, and that these requirements would ensure "architectural and landscape treatments" that keep the neighborhood services development "in scale with the surrounding residential developments." This was not merely promotional language—it was the fundamental basis upon which the Commission approved the PUD and the public accepted commercial zoning in their residential neighborhood. The City's current refusal to enforce these Development Guidelines betrays the Commission's intent, violates the promises made to the public during the approval process, and abandons the very controls that made the PUD acceptable to the community. BMC 38.430.080 forbids violation of any PUD terms and conditions; failure to enforce subjects applicant to enforcement remedies including denial BMC 38.430.080 unambiguously forbids violation of PUD terms and provides enforcement remedies for non-compliance. The statute states: "The failure to comply with any of the terms, conditions of approval or limitations contained on the site plan, landscape plan, building elevations, other approved documents, or other element pertaining to a planned unit development which has received final approval from the city may subject the applicant or current landowner to the enforcement remedies contained in section 38.200.160." This provision makes clear that all PUD terms—including those in the Master Plan and Development Guidelines—are legally binding, and failure to comply subjects the violator to enforcement remedies. Site Plan #22047 violates numerous PUD terms including Master Plan building size and location requirements, Development Guidelines setbacks and design standards, and 1992 B-1 zoning requirements. Under BMC 38.430.080, these violations require enforcement action. The City's approval of a site plan that violates PUD terms not only fails to comply with this enforcement mandate but actively enables violations that the code explicitly forbids. The Site Plan violates comprehensive objectives of BMC 38.510.010.A for compatible development and comfortable walking environment Site Plan #22047 violates the comprehensive purposes of both Article 5 (BMC 38.500.010) and the Block Frontage Standards (BMC 38.510.010.A). BMC 38.510.010.A establishes two primary purposes: (1) "to design sites and orient buildings with an emphasis on compatible development" and (2) creating "a comfortable walking environment." The development places incompatible commercial buildings designed for a destination restaurant closer to residences and open space rather than addressing streets. It creates an uncomfortable walking environment by lining 100% of existing frontages with parking lots, placing a dumpster at the trail gateway, and forcing pedestrians from the trail system to navigate through parking areas. These features of the proposed development compound the violations rather than achieving the standards' purposes. BMC 38.500.010 identifies broader Article 5 purposes including compatibility (38.500.010.D), enhancing character (38.500.010.D), livability (38.500.010.F), and protecting property values (38.500.010.G). The site plan fails every one of these tests, demonstrating that the the proposed layout of buildings and parking fundamentally defeat rather than advance the code's comprehensive objectives. Approval represents selective enforcement – the City enforced same covenants against residential violator in 2004 but refuses to enforce against commercial developer now The City's approval of Site Plan #22047 represents arbitrary, capricious, and illegal selective enforcement of the Sundance Springs PUD covenants. In 2004, when a residential developer violated covenant setback requirements, the City characterized it as an "illegal encroachment into a required rear yard," cited the covenants as the source of "legally required setbacks," and required the developer to appear before the City Commission to obtain a formal PUD amendment. The City treated the covenant violation as a serious legal matter requiring Commission-level remediation. Yet now, when the commercial developer violates dozens of covenant provisions—including the same types of setback violations addressed in 2004—the City refuses to enforce the covenants, claiming they are merely "private agreements." This disparate treatment of residential versus commercial violators, enforcing covenants against small residential setback violations while ignoring massive commercial violations, is arbitrary and capricious. The City must enforce the covenants consistently against commercial property as it did against residential property in 2004, or admit that its enforcement practices are based on favoritism rather than legal requirements. Approving the proposed develoment would constitute major change in the PUD terms, requiring formal City Commission amendment per BMC 38.430.040.A.3.d.2, not administrative staff approval The City's implicit position that PUD terms automatically evolve to conform with changes in the current BMC violates BMC 38.430.040.A.3.d's requirement that PUD amendments be processed through formal procedures. If PUD requirements could simply "evolve" with BMC updates, this would constitute a major change to the PUD's binding terms without the due process protections mandated by BMC 38.430.040.A.3.d.(2).(a), which requires City Commission approval in a public hearing for major PUD changes. The code explicitly provides that PUD terms are locked in at approval unless formally amended through the prescribed process. Allowing the 1992 B-1 zoning requirements to be replaced by current zoning standards—without Commission review, without public notice, without a hearing—effectively amends the PUD through administrative action in violation of the Charter and BMC. PUD requirements do not evolve automatically with the UDC; they evolve only through formal PUD amendment procedures that require Commission approval. The City's substitution of current standards for the PUD's 1992 requirements constitutes an illegal administrative amendment of zoning terms reserved to Commission authority. Z-95125 Application Criteria show Development Guidelines (Covenants) relied upon extensively for approval across dozens of 18.54.100.E criteria including architecture, scale, compatibility, lighting, landscaping, groundwater, and integration with neighborhood The Z-95125 Application Criteria (Tab 6) demonstrates that the City extensively relied upon the Development Guidelines (Covenants) to approve the PUD across dozens of required approval criteria under 1992 BMC 18.54.100.E. The application responses cite specific Articles VIII through XI of the Covenants as the mechanism for satisfying numerous approval criteria including: architectural treatments, building scale and massing, compatibility with surrounding development, exterior lighting standards, landscaping requirements, groundwater protection, and integration with the neighborhood character. Each criterion under 18.54.100.E required an affirmative answer before the PUD could be approved—and the City could not have answered "yes" to these questions without relying on the Development Guidelines. This extensive reliance on the Covenants to satisfy the approval criteria conclusively demonstrates that the City treated the Development Guidelines as binding PUD requirements at the time of approval. The City Attorney's claim that enforcement is limited to the City's "custom and practice" of enforcing "covenants relied upon for approval" is satisfied here—the Application Criteria prove the Covenants were relied upon extensively for approval. Proposed development circumvents and violates protections afforded by PUD Master Plan, Development Guidelines, Covenants, Municipal Code, and 1992 Zoning that neighbors relied upon when purchasing properties Residential property owners in Sundance Springs have upheld their PUD obligations for over 25 years, maintaining the neighborhood character, stewarding open spaces, and complying with covenant requirements—all while relying on the protections afforded by the PUD's Master Plan, Development Guidelines, Covenants, Municipal Code, and 1992 zoning standards. These protections were the quid pro quo for accepting commercial zoning in their residential neighborhood. The City of Bozeman was made a party to the covenants by City Commission order, confirming these were not merely private agreements but enforceable requirements with City oversight. Site Plan #22047 systematically circumvents and violates every one of these protections: it ignores the Master Plan's building size and use designations, violates the Development Guidelines' architectural and setback requirements, exceeds the 1992 zoning limitations, and degrades the tranquil open spaces that the HOA has maintained for the community's benefit. Neighbors purchased their properties in reliance on these multilayered protections, and the City's approval of a development that circumvents all of them represents a breach of the fundamental bargain underlying the PUD. The City Attorney characterized simple BMC compliance as 'strict' behavior and elevated the City’s 'preferences' over mandatory legal requirements, claiming therefore a license to violate the law The City Attorney's May 19, 2023 letter reveals a fundamentally flawed understanding of legal obligations by characterizing simple compliance with mandatory BMC requirements as "strict" or extreme behavior. The letter acknowledges that the Approved Final Plan is legally required but then characterizes adherence to this requirement as "strictly adhering to" or "failing to" develop the property—as if following the law were an optional, overly rigid position. This characterization creates a dangerous precedent: if complying with mandatory code requirements can be dismissed as "strict" behavior, the City has granted itself license to ignore any legal requirement it finds inconvenient. The City Attorney's letter further elevates the City's "preferences" and assessments of what would "reflect the community's needs and values today" above explicit statutory mandates like BMC 38.100.030 and 38.430.040.A.3.d. This substitution of preferences for legal requirements represents a breakdown in the rule of law, where mandatory provisions become optional whenever staff determine that compliance would be inconvenient or would not align with their current policy preferences. June 28, 2023 Staff Report failed to acknowledge 190+ public comments showing BMC violations and made no mention that Approved Final Plan is lost The June 28, 2023 Staff Report to the City Commission recommending approval of Site Plan #22047 failed to acknowledge the substance of over 190 public comments documenting specific BMC violations and PUD requirement failures. Rather than addressing the detailed legal arguments and code citations provided by the public, the Staff Report dismissed community concerns without substantive response. Even more egregiously, the Staff Report made no mention whatsoever that the Approved Final Plan is lost—arguably the most critical fact affecting the City's ability to review the site plan against binding PUD requirements. This omission prevented the City Commission from understanding the fundamental basis for the community's objections and deprived Commissioners of essential information needed to make an informed decision. The process by which the City considers public comment is broken when nearly 200 detailed comments documenting code violations can be submitted, yet the Staff Report neither acknowledges the substance of these comments nor discloses to the Commission that the controlling document establishing PUD requirements has been lost by the City. City improperly applied BMC 38.430.070 (phased PUD application procedures) to Site Plan review when 38.430.070 governs initial PUD applications, not development within approved PUDs The City committed a grievous procedural error by applying BMC 38.430.070 to the review of Site Plan #22047. BMC 38.430.070 is titled "Applications for phased planned unit developments" and BMC 38.430.070.B establishes "Approval procedures for phased PUDs." This section governs the initial application process for creating a phased PUD—the preliminary application submitted in 1995 (approved 1996) and the final application submitted in 1997 (approved 1998). The current application is not an "application for" a phased PUD; it is a site plan for development within an already-approved phased PUD. Site plans for development within approved PUDs are governed by BMC 38.430.040.A.3.d, which requires compliance with the approved PUD terms and establishes amendment procedures for major changes. By incorrectly applying section 38.430.070's phased PUD application procedures to site plan review, the City used the wrong legal framework, bypassed the actual requirements governing development within approved PUDs, and avoided the major change analysis and potential Commission review that BMC 38.430.040.A.3.d requires. City incorrectly claims Master Plan Map is merely conceptual sketch with no binding requirements, contradicting BMC 38.430.040.A.3.d and historic code requiring specific building locations The City's claim that the Master Plan Map is merely a "conceptual sketch" with no binding requirements is unsupported, specious, and contradicts both current and historical BMC provisions. The 1992 BMC 18.54.080.D.1 explicitly required the Master Plan to show "proposed conditions pertaining to such elements as building locations" and permitted the PUD to contain "approved building locations." Current BMC 38.430.040.A.3.d.(2).(b) confirms that PUDs can establish binding building location requirements by defining major changes requiring Commission amendment as including changes to "the number, size, height or location of buildings." The Commission Memo's assertion that the Master Plan Map has no binding requirements (packet page 337) is flatly contradicted by the Municipal Code itself. The 2020 Concept Review (CONR-20298) relied on the Master Plan Map to identify the site designation and applicable zoning. The Market Study ordered by the Commission was based on the Master Plan's specific building size and use designations. The City's retroactive characterization of the Master Plan as merely "conceptual" ignores these authoritative uses of the Master Plan and attempts to nullify binding PUD requirements through administrative recharacterization. BMC defines minor changes to the PUD than can be approved adminstratively. The non- compliant portions of the Site Plan are not minor changes and can’t be approved administratively. BMC 38.430.040.A.3.d.(2) defines three categories of major changes to a PUD that require City Commission approval through formal amendment: (i) changes in the character of development, (ii) changes in density or floor area ratio by more than 5%, and (iii) changes to the number, size, or location of buildings. The Municipal Code is explicit that PUDs can contain approved building locations and floor area limits, making changes to these approved elements major modifications requiring Commission review. Site Plan #22047 violates all three categories of major changes. First, it fundamentally changes the character of development from a small-scale neighborhood Village Store to a destination brewery/restaurant complex, violating the Development Guidelines' architectural, scale, and compatibility requirements. Second, it increases floor area by more than 140%—from 5,000 square feet shown on the Master Plan to over 12,000 square feet proposed, far exceeding the 5% threshold. Third, it changes the number of buildings (from one to two) and relocates buildings from street frontage to positions facing open space and residential properties. Each of these changes independently qualifies as a major change; together they demonstrate that Site Plan #22047 requires formal PUD amendment with City Commission approval, not administrative approval by staff. Enforcing PUD Development Guidelines and Master Plan would align with current community needs and values expressed in public comments The City Attorney's May 19, 2023 letter claims that enforcing the PUD's Development Guidelines and Master Plan would not "reflect the community's needs and values today." This assertion is directly contradicted by the nearly 200 public comments submitted in opposition to Site Plan #22047. These 194 comments requesting denial consistently articulated current community values including: strict compliance with the BMC, enforcement of PUD requirements and Development Guidelines, protection of the tranquil open space character, preservation of the rural/agricultural neighborhood feel, public safety concerns regarding parking and emergency access, and maintaining the small-scale neighborhood-serving development that was promised when the PUD was approved. Far from being outdated requirements that conflict with modern community values, the Master Plan and Development Guidelines embody exactly the protections that the current community is demanding. Enforcing these PUD requirements would perfectly align with current community needs and values as demonstrated by overwhelming public opposition to the site plan. The City Attorney's claim to the contrary ignores the actual evidence of community values and substitutes staff preferences for genuine community input.