HomeMy WebLinkAbout12-01-25 Public Comment - K. Shelkey - Public Comment on Draft UDC Building on Lessons Learned from the Guthrie II AppealFrom:Kirsa Shelkey
To:Bozeman Public Comment; Terry Cunningham; Jennifer Madgic; Joey Morrison; Douglas Fischer; Emma Bode
Cc:Bozeman Home Advocacy Group
Subject:[EXTERNAL]Public Comment on Draft UDC Building on Lessons Learned from the Guthrie II Appeal
Date:Monday, December 1, 2025 4:36:06 PM
Attachments:2025.12.01 (BHAG) UDC Rewrite Public Comment.pdf
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.Dear City Commission Members, Attached please find public comment from the Bozeman Home Advocacy Group. TheGroup's comments on the Draft UDC build on what we hope were common realizationsand lessons learned from the Guthrie II appeal process. We hope you find the commentthought-provoking and helpful. Comments are not meant to re-hash your decision in theappeal, but to improve the code based on our common experience in that appeal. Thank you for your service, time, and consideration.Sincerely, Kirsa Shelkey
BREEANN M. JOHNSON | 406.600.9389 | JOHNSON@WESTROOTSLAW.COM
ALISON P. GARAB | 406.579.9584 | GARAB@WESTROOTSLAW.COM
KIRSA A. SHELKEY | 406.599.2087 | SHELKEY@WESTROOTSLAW.COM
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Public Comment on the Draft UDC: Incorporating Lessons
Learned from the Guthrie II Appeal
To: Bozeman City Commission Members
From: Kirsa Shelkey, Counsel for Bozeman Home Advocacy Group
Date: December 1, 2025
Dear City Commission Members,
I hope that you do not read this public comment as continued “whining” about my client’s loss on
the Guthrie II’s development approval. My client is appealing that decision in court and only offers
this public comment with the best interests of the City in mind. My client acknowledges and is
appreciative of the hard work that has gone into the UDC rewrite. Indeed, my client has
participated at all levels of the UDC rewrite process.
The Guthrie II appeal brought some common realizations and lessons learned to light—I hope for
all of us. The purpose of this public comment is to draw on those lessons learned and to apply
those realizations productively to the UDC rewrite. With that in mind, my client respectfully offers
the following public comment:
I.The Draft UDC Does Not Clarify the Force and Effect of the NCOD Guidelines
That the City needs to update and clarify how City Staff interpret COSA criteria and the
force and effect of the NCOD Guidelines in conjunction with base zoning was the prevailing
finding of the City Commission at the City’s appeal hearing for the Guthrie II.
Appellant’s, and the larger public’s, position was simple: the COSA criteria are clear; the
NCOD Guidelines are compulsory; the rest of the property owners within the NCOD boundaries
have always had to meet the COSA criteria and comply with the NCOD Guidelines. If the City
does not want to consider the COSA criteria or NCOD Guidelines, it needs to amend or repeal
existing code.
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The Developer and City Staff’s position was that the NCOD Guidelines were not
compulsory; the Planning Administrator could determine when and how the NCOD Guidelines
applied because they were outdated and did not fit with the City’s vision for high density infill in
the residential area surrounding the Midtown Urban Renewal TIF District. City Staff, in an appeal
brief preceding the hearing, and in person at the hearing, further stated Staff’s viewpoint that that
U.S. Department of the Interior’s standards for historic preservation did not apply, and that certain
COSA criteria did not apply to proposed demolitions within the NCOD.
The City Commission ruled in favor of City Staff and the Developer, lamenting that the
code required clarity with regard to COSA criteria and the NCOD Guidelines. City Staff and the
Commission referenced the City’s efforts to update the UDC, specifying that the UDC rewrite
would clarify in code how City Staff review and apply the COSA criteria, including the NCOD
Guidelines. City Staff and the Commission further promised a re-write of the NCOD Guidelines—
again, for the purpose of adding clarity and teeth to outdated guidelines.
The UDC rewrite offered the opportunity for the City to do what it promised: to clarify
whether the NCOD Guidelines and COSA Criteria do or do not compulsorily apply; and to either
amend and modernize, or repeal, the NCOD Guidelines. The City has missed this opportunity. The
language causing ambiguity for City Staff remains unchanged. See DRAFT UDC Article 2-Zoning
Districts: Sec. 38.240.020, excerpted below (emphasis added):
E. Standards for certificates of appropriateness.
1. All work performed in completion of an approved certificate of appropriateness
must be in conformance with the most recent edition of the Secretary of the
Interior’s Standards for the Treatment of Historic Properties with Guidelines for
Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings,
published by U.S. Department of the Interior, National Park Service, Cultural
Resource Stewardship and Partnerships, Heritage Preservation Services,
Washington, D.C. (available for review at the community development
department).
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2. Architectural appearance design guidelines used to consider the appropriateness
and compatibility of proposed alterations [a term that categorically includes
demolition] with original design features of subject structures or properties, and
with neighboring structures and properties, must focus upon the following:
a. Height,
b. Proportions of doors and windows;
c. Relationship of building masses and spaces;
d. Roof shape;
e. Scale;
f. Directional expression, with regard to the dominant horizontal or
vertical expression of surrounding structures;
g. Architectural details;
h. Concealment of non-period appurtenances, such as mechanical
equipment; and
i. Materials and color schemes (any requirements or conditions imposed
regarding color schemes must be limited to the prevention of nuisances
upon abutting properties and prevention of degradation of features on the
property in question. Color schemes may be considered as primary design
elements if a deviation from the underlying zoning is requested).
3. Contemporary, non-period and innovative design of new structures and additions
to existing structures is encouraged when such new construction or additions do not
destroy significant historical, cultural or architectural structures or their
components and when such design is compatible with the foregoing elements of the
structure and surrounding structures.
4. When applying the standards of subsections 1 through 3 above, the review
authority must be guided by the design guidelines for the neighborhood
conservation overlay district. Application of the design guidelines may vary by
property as explained in the introduction to the design guidelines. When reviewing
a contemporary, non-period, or innovative design for new structures or additions to
existing structures, the review authority must be guided by the design guidelines
for the neighborhood conservation overlay district to determine whether the
proposal is compatible with any existing or surrounding structures.
If anything, the Draft UDC adds ambiguity. Article 1: Section 38.110.010 states: UDC-referenced
“[a]dministrative manuals, resolutions, standards, or other documents are . . . hereby incorporated
by this reference,” whereas the former UDC specifically named the DOI Guidelines and NCOD
Guidelines as incorporated into the code by reference.
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The City has likewise failed to adopt into code it’s position that minimum base-zoning
requirements supersede more restrictive building standards in overlay zoning districts, like the
NCOD, by right. Weighing against this perspective are the following provisions in the Draft UDC:
Base zoning and overlay zoning districts still appear adopted per the City’s Article 2 zoning
authority; the Draft UDC, consistent with statute, still indicates it “applies uniformly within each
zoning district to each class or kind of structure, land or development”; the Draft UDC still states
“wherever there is an internal conflict within this chapter, the most restrictive or more specific
requirements, or those imposing the higher standards, govern”; and the Draft UDC still states when
interpreting the UDC, Staff must construe UDC provisions “in a manner that will give effect to
them all.”
The Guthrie II is within the NCOD, which requires a COSA. However, the City approved
the development by right, citing that R-5 base-zoning allows 4-story development, regardless of
the building’s existence in the NCOD. The City found that minimum standards—those of base-
zoning—govern. The City’s by-right approval of minimum base-zoning standards was and now
continues to be out of sync with clear and unambiguous language in code: “wherever there is an
internal conflict within this chapter, the most restrictive or more specific requirements, or those
imposing the higher standards, govern.”
Moreover, the Guthrie II’s approval begs the question, what is the point of having NCOD
Guidelines or a COSA approval process, where administrative staff can determine a property
owner can build by right according to the parcel’s base zoning within the NCOD? The City’s
interpretation rendered the COSA process meaningless. The Draft UDC does not resolve this
apparent contradiction in law.
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Despite the clear call out and need for added clarity and modernization of code to meet
Bozeman’s new development needs, the Draft UDC perpetuates known ambiguity, and instead
curtails the ability for the public to comment on subjective, and unfair and un-streamlined,
application of code. Are the NCOD Guidelines compulsory or not? Do all of the COSA review
criteria apply to demolition and new construction in the NCOD or not? If the minimum standards
of base zoning allow development not allowed per the more restrictive COSA criteria, do you still
need to get COSA? Why? Do the rules apply uniformly to all property owners within the NCOD?
Why or why not? Disappointingly, the Draft UDC does not clarify the answers these questions.
II. The Draft UDC Doubles Down on Removing Public Review from Site-Specific
Land Use Approvals: Violates the Public’s Right to Know and Participate
Instead of respecting and following direction from the Honorable Judge Mike Salvagni and
the Gallatin County District Court in Montanans Against Irresponsible Densification, LLC, v.
Montana, Decision and Order, DV-16-2023-0001248 (March 3, 2025) (MAID), the City has
removed the City Commission’s ability to retain jurisdiction over certain and likely contentious or
important land-use decisions in the City. In MAID, excerpted below, the court found the Montana
Land Use and Planning Act’s (MLUPA) delegation of non-ministerial or subjective decision-
making authority without the opportunity for public review and hearing to be facially
unconstitutional:
The relevant inquiry is whether the public official exercises judgment in the decision on an
application. In State ex rel. Div. Worker’s Compensation v. District Court, 246 Mont 225,
229, 805 P.2d 1272, 1275 (1990), the Montana Supreme Court defined “ministerial act”
as:
…an act performed in a prescribed legal manner, in obedience to the law or
the mandate of legal authority, without regard to, or the exercise of, the
judgment of the individual upon the propriety of the act being done.
MAID argues that the ultimate site-specific decision of the planning administrator
approving, conditionally approving, or disapproving permits or applications under the
zoning and subdivision laws involves discretion and judgment on the part of the planning
P a g e 6 | 10
administrator. Ct. Doc. 137, 14. As the Supreme Court has reinforced, a ministerial act
for purposes of an exception to the constitutional right to participate is one performed
pursuant to legal authority, and requiring no exercise of judgment. Further, § 2-3-112(3),
MCA, provides that the requirements for procedures to assure notice and public
participation do not apply to a “decision involving no more than a ministerial act.” The
decision of the planning administrator involves more than a ministerial act. The Court
agrees with MAID’s argument.
Although public participation is not an issue with the development of a land use plan and
zoning and subdivision regulations, it is an issue with the review and approval of an
application for a zoning permit or preliminary plat of a subdivision. The dominant issue
here is whether MLUPA is facially unconstitutional. The Court concludes that Section 76-
25-106(4)(d), MCA, Section 76-25-305 (4), (5)(a)(b)(c)(d) and (6)(a)(b) MCA, and
Section 76-25-408 (7)(a)(b), (8)(a)(i)(ii)(ii) and (b) MCA, of MLUPA violate Article II,
Section 8 of the Montana Constitution. These provisions of the law precluding public
participation without notice and opportunity to be heard at the decision making stage by
the planning administrator on a proposal for a site-specific development are facially
unconstitutional. This blanket prohibition for notice and opportunity to be heard offends
the Constitution.
. . .
While the Legislature is free to pass laws implementing constitutional provisions, its
interpretations and restrictions will not be elevated over the protections found within
the Constitution.” Bryan v. Yellowstone County Elem. Sch. Dist. No. 2, 2002 MT 264, ¶
23, 312 Mont. 257, 60 P.3d 381. Characterizing the decisions to be made by the planning
administrator in the review and approval process as ministerial, when they are obviously
discretionary, does not validate those provisions under the Constitution.
See MAID, 26-27.
This case is currently on appeal before the Montana Supreme Court. In the event that the
Court affirms the district court’s holding, the UDC’s parallel provisions—delegating subjective
non-ministerial review authority to approve site plans, etc., to the planning administrator without
the opportunity for public review and hearing—are facially unconstitutional.
It is frustrating that even with the preview and likely precedential holding in MAID, the
City has doubled down on removing public review processes from local land-use decision-making.
The City seems to have forgotten that public comment enables the City to make better decisions,
resulting in better development projects, although the process can be frustrating for all parties
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involved. Compare the Guthrie I product to the Guthrie II product, and the fact that public comment
enabled the Commission to scrutinize the developer’s open space calculations, and
characterization of “studio” and associated affordable costs, to the public’s benefit. Local
government is in trouble indeed where the public no longer shows up, because it has lost faith in
the process.
III. The Draft UDC’s Modifications to Traffic Standards Reduce Safety and Public
Welfare, and Shift Future Infrastructure Costs from Developers to the Public
The UDC generally requires developers to meet traffic standards and to improve streets
with the added use of traffic infrastructure from approved developments in mind. One of the ways
the previous UDC did this was to contemplate infrastructure burden 15 years into the future, and
require developers to make improvements based on that 15-year (or design year) projection. The
Draft UDC reduces the “design year” from 15 years to 5 years from the date of application. This
reduction in time shifts the burden to pay for infrastructure costs directly related to increased use
by residents of an approved development from developers to the public. The 15-year design year
should remain in place.
The Draft UDC reduces the minimum level of service (LOS) for an intersection from C to
D. City Staff often opine that the LOS standard does not pertain to pedestrian safety at
intersections. The City has, in the past, used this observation to approve developments despite
applicable intersections that did not meet the LOS C. Many cities have several LOS standards in
place, including those specific to pedestrian and bike safety—a data point previously pointed to
by Staff and City Commissioners. Instead of adopting an LOS better suited to pedestrian safety,
the Draft UDC reduces the only LOS standard it has.
Furthermore, where an intersection does not meet the reduced LOS D in the reduced 5-year
design year, the Draft UDC further allows the City’s traffic director to determine the intersection
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does not require the developer to mitigate a failure to meet service standards. The Draft UDC
includes no criteria for the director to exempt the non-performing intersection; the decision is
entirely discretionary, subjective, and one might argue, non-ministerial.
It is further unclear whether the Draft UDC implicitly requires a traffic impact study (TIS).
The Draft UDC offers too many concessions to developers to the detriment of those who live in
the City and use its intersections. The public should not bear the burden of increased safety risks
and infrastructure costs stemming directly from development in the City. The City should reinsert
the 15-year design year, LOS C, and required TIS into the Draft UDC, and remove the traffic
director’s ability to discretionarily exempt non-performing intersections from level-of-service
standards.
IV. The Draft UDC Fails to Add Clarity to the Appeal Process
Consistent with statute, the Draft UDC indicates aggrieved parties may appeal to the
Planning Commission. What body constitutes the Planning Commission in the City of Bozeman?
The Draft UDC should clarify the answer for those wishing to appeal.
Additionally, the Guthrie II appeal process was, by any standard, fundamentally flawed
and unfair. Undersigned Counsel detailed the appeal process to City Commission members as
follows:
City Staff instructed the Appellant, Bozeman Home Advocacy Group, that the
procedure set forth in BMC 38.250.030 would govern the present appeal. Pursuant
to BMC 38.250.030.H.: “The material to be considered by the [Commission]
must be the record of the project review, including the administrative review
authority’s decision, in addition to materials that may be submitted during the
processing and review of the appeal.”
…
On March 27, 2025, the Community Development Director’s 47-page Commission
Memo was made available. The Commission Memo reads like a response brief an
attorney might file in court. However, in court, established timelines make
transparent the fact that a response brief will be filed, and ensure that an appellant
is not blind-sided and has a fair amount of time to respond.
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The Appellant pens this reply to build a record in case of appeal, but also in an
effort to shed light on the perceived lack of fairness for the Commission, such that
the Commission might understand the public’s underlying frustrations with City
process. Here, the Appellant feels blind-sided by the 47-page Commission Memo—
made available 2 working days prior to when Appellant’s presentation must be
submitted to City Staff. The language used in BMC 38.250.030 and in City Staff
correspondence does not lead a reasonable person to expect “materials relevant to
the appeal hearing” means the 47-page brief-like Commission Memo. The
Appellant appeals from decisions already made and supported by facts and
conclusions established in the Staff Report; the Commission on appeal reviews the
decisions already made and reported for error.
While the Commission Memo improperly makes novel arguments related to
standing and issue preclusion, Appellant’s frustration with the Commission Memo
is less with its substance and more with procedural fairness. The Appellant had nine
working days to prepare its appeal of the Guthrie II’s administrative approval. City
Staff then took thirty-nine working days to make its Commission Memo available.
Why didn’t City Staff make the Commission Memo available sooner? Why did
City Staff refer to a 47-page Commission Memo as “materials relevant to the appeal
hearing” days before it made the Commission Memo available?
It is disappointing to see that the City has not added provisions to increase fairness in appeal
proceedings. The Draft UDC states the following:
The Draft UDC should, if City Staff wish to continue to provide memo-like responses to appeals,
provide clear and fair City Staff response and Appellant reply timelines consistent with motions
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schedules in court. For example, draft language is as simple as: Following appeal, City Staff have
21 days to respond to the filed appeal, and appellants have 14 days to reply to that response ahead
of the governing body’s review.
Moreover, the Draft UDC does not, and should, clarify the amount of time for the appellant
to present its appeal. This timeline should be equal to the time allotted to City Staff, and to the
Developer; each party should have equal time to present and should know how much time
they have to present. Undersigned counsel was told she had 10 minutes to present in email, and
then told at the hearing that she had 15 minutes. It is hard to prepare without a set and fair appeal
process.
Thank you, as always, for your service, time, and consideration.
Sincerely,
Kirsa A. Shelkey