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APA
A DMINISTRATIVE PROJECT
DECISION APPEAL
APA APPLICATION PROCEDURE
Administrative Project Decision Appeals may be made pursuant to Bozeman Municipal Code section 38.250.030.
The filing of the appeal must be received by 5:00pm on the tenth working day following the final decision of the administrative
review authority. This application must be submitted with the fee to: Community Development; 20 East Olive St., Bozeman, MT
59715. The Public Counter staff MUST be present to accept application.
APA APPLICATION CHECKLIST
1.Create and submit a Planning application using the ProjectDox portal; After completing your Development Review
Application, you will receive a Notification Letter (example) via email. Please download this document to upload as a PDF to
the “Documents” folder in ProjectDox.
**An appellant need not obtain the signature of the property owner (as directed on the Notification Letter)**
2.Document sizing. For instructions on recommended document sizes and types, refer to our Development Center Website;
3.Naming protocol. All files should be numbered and named according to their order listed on your provided Submittal
Checklist. File names should start with a 3 digit numeric value (001, 002, etc.) followed by the document name. The numeric
value at the beginning of the file name ensures the order in which they are displayed. Refer to our Quick Guide for additional
information;
4.Name and address of the appellant;
5.The legal description and street address of the property involved in the appeal;
6.A description of the project, including the project number, that is the subject of the appeal;
7.Evidence that the appellant is an aggrieved person as defined in section 38.700.020;
8.The specific grounds and allegations for the appeal, and evidence necessary to support and justify a decision other than as
determined by the administrative review authority.
A public notice period is required for any Administrative Project Decision Appeal.
1.Completed and signed Noticing Checklist (N1) and Noticing Instructions and Declaration Form (N2.)
**The City will work with the property owner to complete the notice that must be posted on the site; the appellant must
complete the required notice by mail**
APPLICATION FEE
For most current application fee, see Schedule of Community Development fees. Fees are typically adjusted in annually.
CONTACT US
Alfred M. Stiff Professional Building
20 East Olive Street
Bozeman, MT 59715
phone 406-582-2260
fax 406-582-2263
planning@bozeman.net
www.bozeman.net/planning
APA Checklist Page 1 of 1 Revision Date: November 2021
NOTICING
Required Forms
Noticing Checklist (N1); Noticing Instructions & Declaration Form (N2)
BOZEMANMT
Planning Division
Submitted Date: 12-18-2025 11:39 AM
DEVELOPMENT REVIEW APPLICATION
Remember to obtain owner signature on this form prior to uploading with the rest of your submittal
PROJECT INFORMATION
Project Name:Appeal of Application #25238
Project Type(s):Administrative Project Decision Appeal APA
Street Address:675 LITTLE HORSE
Legal Description:
Sundance Springs Phase 1B Comm Lot 2, S25, T02S, R05E
Plat J-257
Description of Project:
Mixed
Current Zoning:B-1 Neighborhood Business District
Existing Use:Undeveloped
Proposed Use:Commercial
Gross Lot Area:56600
Number of New Buildings:2
Type and Number of Dwellings:0
Building Size (SF):9950
Non-Residential Building Size (SF):9950
Building Height (ft):32
Affordable Housing (Y/N):
Departure/Deviation Request (Y/N):No
Zoning Verification Expedited (Y/N):No
Wetlands Activity (Y/N):Yes
Traffic Study or Waiver:N/A - Application is not a Master Site Plan, Site Plan,
Subdivision, or Planned Development Zone.Is there a pre-application pertaining to this project?:
Project Name and Project Number:
PROPERTY OWNER
Company Name:406 Coal Blowers
Name:Michael Schreiner, III
Full Address:PO Box 370, Bozeman, MT 59771
Email:michael@westernmountaininvestments.com
Phone:4065805624
APPLICANT
Company Name:Geoffrey Poole and Tim and Nancy Swanson
Name:Geoffrey Poole
Full Address:3772 Alder Creek Drive , Bozeman, Montana 59715
Email:gpoole@eco-metrics.com
Phone:4069945564
REPRESENTATIVE
Company Name:Geoffrey Poole and Tim and Nancy Swanson
Name:Geoffrey Poole
Full Address:3772 Alder Creek Drive , Bozeman, Montana 59715
Email:gpoole@eco-metrics.com
Phone:4069945564
CERTIFICATIONS AND SIGNATURES
Applicant signature is captured electronically at time of application submittal. This application PDF must also be
signed by the property owner(s) for all application types before the submittal will be accepted. The only exception
to this is an informal review application that may be signed by the applicant(s) only. The applicant(s) and property
owner(s) submit this application for review under the terms and provisions of the Bozeman Municipal Code. It is
further indicated that any work undertaken to complete a development approved by the City of Bozeman shall be
in conformance with the requirements of the Bozeman Municipal Code and any special conditions established by
the approval authority. I acknowledge that the City has an Impact Fee Program and impact fees may be assessed
for my project. Further, I agree to grant City personnel and other review agency representative's access to the
subject site during the course of the review process (Section 38.200.050, BMC). I (We) hereby certify that the
above information is true and correct to the best of my (our) knowledge.
Certification of Completion and Compliance - I understand that conditions of approval may be applied to the
application and that I will comply with any conditions of approval or make necessary corrections to the application
materials in order to comply with municipal code provisions.
Statement of Intent to Construct According to the Final Plan - I acknowledge that construction not in
compliance with the approved final plan may result in delays of pccupancy or costs to correct noncompliance.
Property Owner Signature:
Printed Name:Michael Schreiner, III
CONTACT US
Alfred M. Stiff Professional Building phone 406-582-2260
20 East Olive Street fax 406-582-2263
Bozemn, MT 59715 planning@bozeman.net
www.bozeman.net/planning
PLNAPP-16915
Administration Process Decision Appeal
of Approval of Site Plan #25238
Names and addresses of appellants:
Tim Swanson
375 Peace Pipe Drive
Bozeman MT 59715
Nancy Swanson
375 Peace Pipe Drive
Bozeman MT 59715
Geoffrey Poole
3772 Ellis View Loop
Bozeman, MT 59715
PLNAPP-16915
Administration Process Decision Appeal
of Approval of Site Plan #25238
Address and Legal Description of property involved:
1.31-acre lot at the corner of South 3rd Avenue and Little Horse Drive.
Sundance Springs Sub Ph 1B, S25, T02 S, R05 E, Comm Lot 2 Plat J-257
Project description subject to appeal:
Site Plan #25238
Two buildings with second-floor offices and ground-level grocery/retail/restaurant space and extensive
outdoor patio space.
PLNAPP-16915
Administration Process Decision Appeal
of Approval of Site Plan #25238
Evidence of aggrieved persons
Tim and Nancy Swanson are residents of the Sundance Springs subdivision, of which the subject
property (Site Plan #25238) is a part. The Development Guidelines and Master Plan of the Sundance
Springs PUD govern their residence and the subject property. The live within sight and earshot of the
proposed development and purchased their home with the expectation that the city and any
development on the subject property would be bound by the terms of the PUD and the Chapter 38 of
the BMC, both of which are violated by Site Plan #25238.
Geoffrey Poole is a neighbor of the proposed development and lives within 200 ft of the subject
property. Chapter 38 of the BMC implicitly recognizes the potential impact the subject property on his
residence by requiring him to be noticed for development activities. His deck overlooks the site and he
purchased his property understanding the limits imposed by the Sundance Springs PUD on the subject
property. He has been in dialog with the developer for more than three years, asking for changes to the
site plan to reduce impacts on the peaceful use of his residence as required by the PUD. The City’s and
the developer’s failure to comply with the terms of the PUD and and BMC will impact the peaceful
enjoyment of his home.
The Swansons and Mr. Poole have been involved actively in reviewing and commenting on the
application, both individually and through public comments. Those letters and comments set forth the
specific impact that this project will have on them, as well as establish their involvement in
commenting on the process. As such, they are aggrieved parties under BMC 38.250.030 (A),
38.700.030, and § 76-2-327 (1), MCA.
Basis of Appeal
Appeal of Approval of Site Plan #25238
December 18, 2025
Appellants: Tim and Nancy Swanson and Geoffrey Poole
Contents
1. “Summary provides a conceptual overview;
2. “Primer on the Sundance Springs PUD” provides a brief background on PUDs in general and
the Sundance Springs phased PUD in specific;
3. “Appellant’s Position” examines the 1992 Zoning Code, the 1996 Commission order creating
the PUD, and the current BMC, revealing how the current Municipal Code enforces of the
terms of the PUD’s Master Plan and Development Guidelines;
4. “Analysis of the Approval Letter” shows that the review of #25238 is incomplete because
it improperly applied the current Block Frontage Standards, did not apply all requirements
of the Development Guidelines, failed to provide a statutory justification for setting aside
the PUD’s Master Plan, provided incomplete response to public comment, and was silent on
relevant requirements of the current BMC raised during public comment;
5. “Summary of non-compliance” provides a summary table of requirements that are not met by
Application #25238;
6. “The Character of the Development” highlights how BMC 38.440.030 precludes approval of
#25238 even if the Appellant’s Position is entirely incorrect.
7. “Was the Review Pretextual?” describes the hallmarks of pretextual review in the Approval
Letter and asks whether the review of #25238 was proper.
8. “We ask the Commission to Act” contains a summary of the specific bases upon which we ask
that the approval of #25238 be overturned.
1 Summary
Application #25238 is a proposed Site Plan for commercial development on Commercial Lot #2
of the Sundance Spring subdivision. Development on the site is governed by the current Bozeman
Municipal Code (BMC). BMC 38.440.030; BMC 38.440.050 and BMC 38.100.050 each require the
City to enforce the terms of the Sundance Spring PUD during review of any Site Plan application
on the lot.
We are appealing the approval of Application #25238 on the grounds that the review outlined
in the Letter of Approval was incomplete and may have been improper. We will show that the
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review was incomplete because the current Bozeman Municipal Code (BMC) requires enforcement
of the following requirements, none of which are fully satisfied by the Letter of Approval:
•the current Block Frontage Standards;
•the terms of the Sundance Springs PUD Development Guidelines;
•the conditions shown on the Sundance Springs PUD Master Plan;
•requirements for lots with Residential Adjacency
We also believe that the review described in the Letter of Approval could be rejected as improper
and the approval of #25238 overturned if the Commission were to find that the review was pretex-
tual. Pretextual review occurs when an administrative body reaches a predetermined outcome and
constructs justifications afterward.
2 Primer on the Sundance Spring PUD Documents
NOTE:We use the phrase “Terms of the PUD” to refer generically to the requirements imposed on
the subdivision by the PUD, whether as organized within the Approved Preliminary Plan or within
the Approved Final Plan. See below.
2.1 Approved Preliminary Plan vs. Approved Final Plan
When an application to create a PUD was submitted to and approved by the City, the submitted
application became an “Approved Plan.” There were two required applications. The Preliminary
Application became the “Approved Preliminary Plan” and the Final Application became the “Ap-
proved Final Plan.”
Both Approved Plans:
•contained a Master Plan and Development Guidelines (Preliminary vs. Final);
•included the Commission’s Conditions of Approval;
•imposed the same restrictions on development in the subdivision.
The differences between the two plans were the review authority and the integration of the Condi-
tions of Approval.
Plan Document Review Authority Conditions of Approval
Approved Preliminary Plan Z-95125 Commission Attached separately
Approved Final Plan Z-9812 DRB Integrated
Document Z-95125 was the Sundance Springs PUD Preliminary Application. When combined
with the Conditions of Approval, it formed the Approved Preliminary Plan. Document Z-9812
was the Sundance Springs PUD Final Application. It integrated the terms of Z-95125 with the
Commission’s Conditions of Approval in a single document. When it was approved in 1998, it
became the “Approved Final Plan.”
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2.2 Missing Documents and the Status of the Record
In a letter dated May 19, 2023 from the City Attorney to Brian Gallik, the City Attorney acknowl-
edged that the entirety of document Z-9812 has been lost, and thus, the official record of the Final
Master Plan and Development Guidelines is missing. A “working file” for Z-9812 survives.
The Approved Final Plan is a legal basis for review of development in the Sundance Springs
Subdivision (BMC 38.440.030). Because it is missing, the City has identified substitute documents
for Z-9812 to allow review to proceed. The Feb 27, 2024 meeting of the City Commission was the
hearing for our prior appeal of Site Plan #22047. Included in the “Commissioner’s packet” for that
meeting is a “Commissioner’s Memo” from the Director of Community Development. Page 11:
An official, stamped copy of the Master Plan exists in the City’s working file for the
Final PUD (file Z-9812) and the development guidelines are incorporated into the
property owners’ association Covenants.
The Commission accepted this substitution, ruling:
“The City had sufficient documents within the surviving record to evaluate site plan
application 22047.”
Therefore, the terms of the PUD’s Final Master Plan are shown on the Master Plan Map from
the working file of Z-9812. The Commercial Covenants are the Final Development Guidelines.
Combined, these documents constitute the terms of the “Approved Final Plan.”
3 Appellant’s Position
We maintain that, by statute and by order of the City Commission, all terms of the PUD’s De-
velopment Guidelines and the conditions shown on the PUD’s Master Plan must be enforced. Our
position arises from examining the Municipal Code and the 1996 Commission order to answer four
fundamental questions not addressed in the Approval Letter for #25238:
1. What is the statutory purpose of the Master Plan and Development Guidelines in a 1996-era
phased PUD?
2. What did the Commission order when it created the Sundance Springs PUD?
3. How does the current Municipal Code enforce the requirements of legacy PUDs?
3.1 Question 1: What is the statutory purpose of the Master Plan and Devel-
opment Guidelines in a 1996-era phased PUD?
Answer:The statutory purpose of the Master Plan and Development Guidelines was to provide
“sufficient detail” to support a finding that the proposed PUD could be approved if the subdivision
is developed according to said detail.
Evidence:1992 BMC 18.54.080.D “Phased PUD Submittal Requirements” required that applica-
tions for phased PUDs have a Master Plan and Development Guidelines. No other element was
required.
1992 BMC 18.54.100 “PUD Design Objectives and Criteria” presented a collection of “PUD
review criteria.” Each criterion is framed as a Yes or No question. The Sundance Springs PUD was
reviewed against 54 criteria. 1992 BMC 18.54.100.C states:
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“A NO response to any of the applicable objectives and criteria will automatically preclude
the development proposal from further consideration and eventual approval, unless a
variance is granted by the City Commission.”
1992 BMC 18.54.080.C (1992) “Phased PUD Approval Process” stated:
In those cases where the Master Plans and Development Guidelines are proposed to
govern the development of the future phases of the PUD, the City Commission must
determine that the proposed Master Plan and Development Guidelines are pro-
vided in sufficient detail to support a finding that the phased PUD will comply with
all requirements for PUD approval if developed in accordance with the approved
Master Plan and Development Guidelines. [Emphases added.]
The first bolded phrase defines the purpose: to provide sufficient detail to enable approval.
The second bolded phrase shows that a finding of compliance with the PUD approval criteria must
presume that the subdivision will be “developed in accordance with the Master Plan and Development
Guidelines.”
3.2 Question 2: What did the Commission order when creating the Sundance
Springs PUD?
Answer:The Commission ordered compliance with the contents of document Z-95125 and the
associated Conditions of Approval.
Evidence: The Commission’s Finding of Fact and Order dated January 22, 1996 created the Sun-
dance Springs PUD. Pages 8–9 of that document state:
ORDER: [T]he Bozeman City Commission found that the proposed Zoning Planned
Unit Development for application Z-95125 ...and Preliminary Subdivision ap-
plication P-9539 ...could comply with [all approval criteria] if certain conditions are
imposed on the project. The evidence that justifies the conditions is that the subdi-
vision must comply with the above-referenced documents, and adverse impacts
created by the subdivision, which require mitigation, justify the imposition of the condi-
tions below. THEREFORE, IT IS HEREBY ORDERED that the subject development
be approved, subject to the conditions listed below. [Bold emphasis added.]
Z-95125 was the PUD application containing the Preliminary Master Plan and Preliminary
Development Guidelines. The Commission made no carve-out allowing any contents of Z-95125 to
be declared optional during subsequent development review within the subdivision.
3.3 Question 3: How does the 2025 Municipal Code enforce the Terms of the
PUD?
Answer:BMC 38.440.030 and BMC 38.440.050 in the current Municipal Code both require com-
pliance with all Terms of this pre-existing PUD.
Evidence:BMC 38.440.030 states:
Issuance of building permits and other development approvals are based on the approved
final plan and any conditions of approval.No city administrative personnel are
permitted to issue permits for improvements which are not indicated on the
approved final plan with the exception of [minor changes]. [Emphasis added.]
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BMC 38.440.050 states:
The failure to comply with any of the terms, conditions of approval or limitations con-
tained on ...approved documents or other element[s] pertaining to a planned unit de-
velopment 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.
Where the requirements of the PUD conflict with those of the current Municipal Code, the more
restrictive requirement applies. BMC 38.100.050.A.
3.4 The Master Plan and Development Guidelines are Binding
The Municipal Code and the Commission’s order work together to create a logical, cohesive reg-
ulatory framework linking review of the detail contained in the Master Plan and Development
Guidelines to approval and enforcement of that detail:
•Requirements:the Master Plan and Development Guidelines provide detail describing the
proposed terms of the PUD (1992 BMC 18.54.080.C);
•Review criteria:detail enables evaluation of approval criteria (1992 BMC 18.54.100);
•Approval:successful evaluation enables approval of the PUD (1992 BMC 18.54.080.C);
•Compliance:the detail that justified the approval governs development. (Commission’s 1996
order; 2025 BMC 38.440.030; 2025 BMC 38.440.050)
Each step depends on the prior steps. By enforcing the details that justified the approval, the
PUD ensures that the subdivision manifests both the requirements of the approval criteria and the
intent of the City Commission in ordering compliance with Z-95125.
4 The Approval Letter Ignores Key Requirements of the Commis-
sion’s 2024 Order
The Approval Letter fails to enforce two key provisions of the Development Guidelines that were
ordered to be enforced by the City Commission in 1996 and 2024, and which are enforced under
current BMC 38.440.030; BMC 38.440.050 and BMC 38.100.050.
4.1 Setback Encroachment by Parking is Prohibited
The City Commission has ruled that the Development Guidelines must be enforced. The PUD’s
Development Guidelines expressly and explicitly prohibit improvements in the setbacks. Application
#25238 shows a parking lot in the setbacks.
8.3.c Buildable Area. Each lot in Sundance Springs shall have a buildable area determined
by building or structure setbacks as allowed in the Bozeman Zone Code for Neighborhood
Service District. All construction other than landscaping improvements shall be limited
to this buildable area.
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4.2 The Proposed Configuration Has Twice Before Been Rejected by the City
Application #25238 proposes the same configuration of buildings and parking lots that was flagged
as non-compliant during the 2020 Concept Review and rejected by the Commission during our last
appeal.
1. The east building fails to address a trail frontage in violation of BMC 38.510.020.F.1;
2. The west building presents its primary facade to the parking lot in violation of BMC 38.510.020.F.1;
3. The parking lots line adjacent trail frontages, degrading the walking environment on the trail
system, in violation of 38.510.010.A.2.
The Commission has already ruled that this building and parking layout would require departure
from the Block Frontage Standards but is ineligible. Their Findings of Fact stated:
“The Developer did not demonstrate, as required by 38.250.060.E, that the criteria for
approval of the departure from 38.510.020.F.1 related to block frontage standards, were
met. The purpose of the standard, to create a comfortable walking environment, was not
met. Therefore, the departure allowing the proposed buildings to face a trail proposed to
be built on land the Developer does not own may not be approved.”
Commissioner Fischer explained his vote:
“I disagree with city findings on the block frontage variances or departures. On the block
frontage, it appears to me that the buildings are just incompatible with the existing and
adjacent residential land use and that the effort to apply these departures is really an
effort to make the building work on a lot that doesn’t accommodate such development. I
find that the comfortable walking environment that was cited in several spots is contingent
on land the developer does not own, and I question the primary beneficiaries of these
departures. Are they the neighbors or are they the patrons of the businesses?”
Mayor Cunningham explained his vote:
“The site will not accommodate the intention of the developer without an exception. It
looks to me like this site needs to be manipulated in a way that requires a departure in
order to accomplish their vision.”
The relevant requirements of the block frontage standards have not changed since our last
appeal. The Approval Letter provides no rationale for approving the building configuration found
non-compliant during Concept Review and by the Commission.
The Approval Letter assesses only the west building against the Block Frontage Standards. The
analysis is incomplete. BMC 38.510.020.F.1 requires that the “front and primary facade” face Little
Horse Drive. The Approval Letter notes that “an entrance” faces Little Horse Drive. The Approval
Letter states several times that this is a “shell building.” As such, the entrance is a side entrance,
located on the short axis of the building, and serving only one of the four business spaces. The long
axis of the building, with the main entrance—accessing the atrium, stairs, elevator, restrooms, and
all four business spaces—faces the parking lot and is therefore in violation of BMC 38.510.020.F.1.
The Approval Letter is silent on the fact that the east building must address the trail and
makes no analysis of the building against the Block Frontage Standards. The Letter is silent on
Development Guideline 8.3.c and does not comply with the Commission’s ruling regarding the Block
Frontage Standards. It is silent on the requirements of BMC 38.510.
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5 Analysis of the Approval Letter
5.1 Are the Requirements of the 1992 Code Binding?
Appellant’s Position: Yes.The plain text of the Development Guidelines states that the re-
quirements of the 1992 Zoning Code are incorporated by reference.
“The Covenants detail how the Neighborhood Services Property within the Sundance
Springs Subdivision are to be developed and maintained beyond the minimum re-
quirements of the Bozeman Zoning Code which exists at the date of the
execution of this document.”
The 1992 Zoning Code was in effect when document was executed. When there are conflicts be-
tween the current BMC and the 1992 Zoning Code, the most restrictive applies, per BMC 38.100.050.
Finally, the 2020 Concept Review for the project indicated that the requirements of 1992 Zoning
Code applied in addition to the then-current Municipal Code. At the time, the senior planner who
conducted the Concept Review had access to the now-missing PUD Approved Final Plan and based
the review on that document.
Approval Letter’s Position: No.Although the Commission’s 2024 ruling ordered enforcement
of the Development Guidelines, it also ordered that the 2025 Municipal Code be the basis for
review. Therefore, when the Development Guidelines references the 1992 “Bozeman Zone Code for
Neighborhood Services (B-1)” the current B-1 standard must be substituted in its place.
Approval Letter’s Fallacy:The Commission’s 2024 findings established the current code as the
standard of review (“the rulebook”). It made no order that some requirements in that rulebook
could be ignored.
The Approval Letter offers a false dichotomy: that the City must enforce either the requirements
(rules) of the 1992 Code or the requirements (rules) of the current Municipal Code. This dichotomy
is false because the rule book can (and does) impose the “rules” of the 1992 standard and the current
standard.
Within the mandated rulebook (the current code), BMC 38.440.030; BMC 38.440.050 and BMC
38.100.050 require the City to consider and apply the requirements (the “rules”) of the current code,
the PUD, and the 1992 Zoning Code. When any requirements conflict, the most restrictive must
be applied.
The Approval Letter is silent on the clear language of the Development Guidelines that incorpo-
rates the 1992 Zoning requirements by reference. The Approval Letter is silent on BMC 38.440.030;
BMC 38.440.050 and BMC 38.100.050. The substitution of the current B-1 standard for the 1992
B-1 standard is unnecessary and is a direct violation of the Development Guidelines.
5.2 Are the Terms of the Master Plan Binding?
Appellant’s Position: Yes.See “Appellant’s Position.”
Approval Letter’s Position: No.The Master Plan is “idealistic” and “grants no entitlement nor
restriction,” offering no statutory rationale for this conclusion.
The Approval Letter offers the following response to public comment regarding the Master Plan:
1. “There may be some confusion between application types, as many of the comments reference
code sections related to Master Site Plan Applications.”
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2. “During the discussion of appeal 23214 and in its Findings of Fact on appeal 23214, the City
Commission did not address appellants’ assertion that only one building of 5,000 square feet
or less could be constructed and that the only allowed use was the village store depicted in
the Master Plan. No Commissioner cited the Master Plan as rationale for supporting their
findings.”
Approval Letter’s Fallacy:The Approval Letter relies on dogma—assertions from a place of
authority without regard to evidence—to conclude that the Master Plan imposes no constraint
on development. The Approval Letter makes no reference to the Municipal Code nor any order
of the City Commission in support of the assertion that the Master Plan is “idealistic.” Further,
the Montana Supreme Court has ruled that approved planning documents cannot be treated as
optional.Heffernan v. Missoula City Council, 2011 MT 91, P77.1
The responses to public comment do not address the issues at hand. By focusing attention
on public comment that is less substantive, the Approval Letter avoids engagement with public
comment that is more substantive. By focusing on the lack of a ruling in 2024 regarding the Master
Plan, the Approval Letter diverts attention from the fact that the Commission did rule on the
Master Plan in 1996, mandating compliance with Z-95125 and the PUD’s conditions of approval.
Z-95125 contained the Preliminary Master Plan.
Condition of Approval #29 mandated that “proposed uses” be added to the Preliminary Master
Plan. Every aspect of the PUD went from “proposed” to “approved” when the Final PUD Application
was granted Final Approval. Thus, the “proposed uses” mandated by the Commission are now
“approved uses.” The Approval Letter does not acknowledge this fact.
The Approval Letter is silent on BMC 38.440.030 and BMC 38.440.050 which both require
adherence to all terms of a PUD, including the Master Plan.
The Approval Letter is also silent on the existence of the “official stamped copy of the Master
Plan” contained in the working file of Z-9812 (See Primer on the Sundance Spring PUD Documents).
As an element of the Approved Final Plan, the Master Plan is required for review (BMC 38.440.030);
its terms cannot become optional during review. The Master Plan shows a single, one-story building,
centrally located on Commercial Lot 2 with the designated use as a “Village Store.”
5.3 Does the Property Have Residential Adjacency?
Appellant’s Position: Yes.Appellant Poole raised in public comment the issue of residential
adjacency:
“The lot abuts R-S zoning to the north, east, and southeast, and therefore meets the
definition of a ‘lot with residential adjacency’ under BMC 38.700.110.L.”
BMC 38.700.110.L defines the term “Lot with Residential Adjacency” as a lot abutting residential
zoning. The parcels to the north, east, and southeast are zoned R-S.
Approval Letter’s Position: No.The Approval Letter states:
“This site is wholly surrounded by open space on all property bounds, except the frontage
along Little Horse Drive. The open space surrounding the rest of the property maintains a
1“The City and MAR advocate a standard of compliance that is minimal to the point of being nonexistent. They
would have growth policies be treated as merely advisory or inspirational documents that the governing body may, in
its ‘full discretion,’ disregard. This approach would undercut the value of growth policies and squander the substantial
resources that are expended in developing them. Growth policies would become what the Planning Board member
in the present case thought they were: a waste of people’s time.”
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parks and open space use, which is not a residential use. Therefore, there is no residential
adjacency to apply to this site.”
Approval Letter’s Fallacy:“Residential Adjacency” has a specific definition in the current Mu-
nicipal Code, which is based on the adjacent zoning. The Approval Letter substitutes “adjacent use”
(open space) for “adjacent zoning” (R-S). The distinction matters: the code ensures that screening
requirements cannot be evaded by the happenstance of what use exists today on adjacently zoned
land.
Application #25238 proposes development on a lot that abuts R-S zoning. Therefore, the lot
has Residential Adjacency under the current Municipal Code.
6 Summary of Non-compliance
Under the current Municipal Code, all of the following are true: 1) the requirements of the 1992
Zoning are enforced by the Development Guidelines, 2) the conditions shown on the Master Plan
are binding, 3) the lot has Residential Adjacency, and 4) the Block Frontage Standards must be
enforced. The following table summarizes the numerous violations of these requirements. It is
grouped by the source of the violation—Master Plan, Block Frontage Standards, etc.—generally
the most egregious violations are at the top of the table.
6.1 Master Plan Violations
Requirement Proposed Limit/Issue Violates
Number of Buildings Two buildings One building Master Plan
Number of Stories Two-story buildings One story Master Plan
Leasable Floor Area ∼10,000 sq ft 5,000 sq ft Master Plan
Building Location East side of lot Central Location BMC 38.440.030.A
Building Design Restrnt, office, gym Village Store Master Plan
Outdoor Patio 800+ sq ft patio Not on Master Plan BMC 38.440.030.A
6.2 Block Frontage Violations (2025 Code)
Requirement Proposed Limit/Issue Violates
Frontages Address Parking Lot Must address trail BMC 38.510.020.F.1
Primary Facade To Parking Lot To Little Horse Dr BMC 38.510.020.F.3
Parking Location Along trail frontages Not along Frontages BMC 38.510.010.A.2
Parking Screen Width 4-foot with berm 10-foot wide screening Table 38.510.030.C
6.3 Development Guidelines Violations
Requirement Proposed Limit/Issue Violates
Setbacks Parking in setback Not allowed Dev. Guides. Sec. 8.3.c
6.4 1992 Zoning Code Violations
Requirement Proposed Limit/Issue Violates
Business Activities Dining Patio Inside only 1992 18.29.020.A
Parking Aisle Width 24-foot aisle proposed 26-foot aisle required 1992 18.50.120.B
Parking Lot Screening None included 8-foot wide screening 18.50.100.D.5.c.(1)
9
6.5 Miscellaneous 2025 Code Violations
Requirement Proposed Limit/Issue Violates
Restaurant Size 30% of gross floor area 20% of gross floor area Table 38.310.040.A
Parking Lot Screening None proposed Continuous 4-6’ high BMC 38.550.050.B.2
Perimeter Trees <1 per 50 lineal feet 1 tree per 50 lineal feet BMC 38.550.050
Snow Storage Area Landscaping, lights Resist snow storage BMC 38.540.020.M
7 The Character of the Development
Let us presume, for the sake of argument, that none of these violations are violations. Let’s imagine
that the City’s position is entirely correct—that the conditions shown on the Master Plan represent
a suggestion, that inconvenient aspects of the Development Guidelines (setback enforcement and
1992 Zoning requirements) can be set aside, and that the building and parking configuration that
has been deemed non-compliant twice before is now acceptable, and that the site has no Residential
Adjacency even tho it abuts R-S Zoning. Under those assumptions, the table of violations would
become simply a list of changes to the vision of the PUD and the order of the City Commission.
Yet even under those assumptions, the current (2025) BMC 38.440.030 still requires that the
approval of Application #25238 be overturned. Unless the PUD is amended, a proposed develop-
ment cannot change the “character of the subdivision” described by the PUD. This provision of the
code provides a statutory basis for requiring adherence to to the “spirit of the PUD,” as discussed
by the Commission during our 2024 appeal. Even if non-binding, the proposed uses on the Master
Plan contribute to our understanding of the the character of the development that was reviewed
and approved.
BMC 38.440.030 is entitled “Amendments to final plan.” That provision states:
A) Issuance of building permits and other development approvals are based on the ap-
proved final plan and any conditions of approval. No city administrative personnel are
permitted to issue permits for improvements which are not indicated on the approved
final plan with the exception of the following:
1. Minor changes to a planned unit development may be approved administratively and
in writing, whereupon a permit may be issued.
2. Minor changes are defined as follows:
a. Those developments that do not change the character of the development;
c. An increase of less than five percent in the approved gross leasable floor areas of
retail, service, office and/or industrial buildings;
d. A change in building location or placement less than 20 percent of the building
width without compromising requirements of the UDO;
B) Changes greater than minor changes must be processed as a PDZ subject to 38.430.
Note that the wording of this provision applies to “changes” to the PUD. “Changes” need not
rise to the level of a code violation in order to be subject to BMC 38.440.030.
Application #25238 changes the character of the development relative to the uses shown on the
Master Plan. It doubles the number of buildings, changes their use, builds two stories where one
was envisioned, lines the trail system with parking lots, builds spaces for restaurants and offices,
creates an outdoor dining patio, and proposes to serve alcohol—all on a site where a “Kagy Corner”
style convenience store was proposed and approved under the PUD.
10
As a matter of simple calculation, Application #25238 offers a 100% increase in leasable floor
area and greater than 20% change in the location of buildings.
In a very real way, the Approval Letter is approving a “shadow amendment” to the PUD.
The approval exercises statutory authority reserved for the Commission (approval of Site Plans
requiring PUD amendment) and denies city residents due process (the opportunity to participate in
that amendment process). All of this is done while the requirements of BMC 38.440—governing the
application and enforcement of legacy PUDs under the current Municipal Code—are not considered,
acknowledged, or mentioned in the Approval Letter. BMC 38.440 is cited 14 times in Appellant
Poole’s 2025 public comments alone.
8 Was the Review Pretextual?
The City Attorney’s Office has acknowledged that the City has a “preference” for application of
modern zoning requirements over prior standards. In a May 19, 2023 letter to Brian Gallik, the
City Attorney’s office noted:
“[T]he City prefers to encourage development of the commercial property pursuant to
today’s BMC standards, which are reflective of the community’s needs and values today,
not those established over twenty years ago.”
Yet that preference cannot take precedence over compliance with the Municipal Code. Based
on the description of the review process in the Approval Letter, we are concerned that the stated
preference of the City may have yielded a pretextual review rather than an even-handed application
of the current Municipal Code.
Pretextual review occurs when an administrative body reaches a predetermined outcome and
constructs justifications afterward. The stated reasons are not the actual reasons. The hallmarks
of pretextual review include:
•Contradictory characterizations—the same fact described differently depending on which
description supports approval
•Unexplained reversals—prior determinations contradicted without acknowledgment
•Selective enforcement—provisions that permit are applied; provisions that constrain dis-
appear
•Missing required analysis—mandated review steps omitted entirely
•Selective silence—specific objections met with no response
•Definition substitution—code terms replaced with terms that produce the preferred result
•Deferral—violations acknowledged but approved as “preliminary,” creating facts on the ground
that later compel variance
No single indicator is conclusive. But when every ambiguity resolves in service of the same
outcome, the review is not neutral. The Approval Letter for #25238 exhibits these hallmarks and
each resolves in service of approval (See Appendix).
The Master Plan is an authoritative “official stamped copy,” but its contents are not relevant.
The Development Guidelines are enforced in detail, except where they constrain the development.
11
The conclusions of prior staff reports are reversed without explanation after authoritative documents
are lost. The building is a restaurant when a front entrance must face the street, but a shell when
that restaurant is over-sized. The same configuration of buildings—deemed non-compliant during
the last appeal—is once again approved. Codified definitions are replaced with invented ones.
Requirements met by the proposed Site Plan are cataloged in detail; requirements that are not
met are not mentioned. Required analyses are not performed when the outcome would preclude
approval. The least substantive public comments receive response; the most substantive objections
in public comment are met with silence.
The question is not whether pretextual review was intended or deliberate. The question is simply
whether the pattern of decisions can be explained by anything other than working backward from
the acknowledged preference to apply the modern code.
9 We Ask the Commission to Act
We ask the Commission to overturn #25238 on one or more of the following grounds:
1. The Master Plan and Development Guidelines were the binding terms of the PUD when it
was approved. The evidence for this finding is:
a. The Master Plan and Development Guidelines were required elements of the PUD appli-
cation (1992 BMC 18.54.080.D)
b. The Master Plan and Development Guidelines were presumed to be binding when the
Commission approved the PUD application (1992 BMC 18.54.080.C);
c. The 1996 order of the Commission stated that the Sundance Springs Subdivision must
comply with Z-95125 and the conditions of approval, which contained the preliminary
Master Plan and Development Guidelines;
d. The Montana Supreme Court has ruled that the requirements of approved planning
documents cannot be treated as optional (Heffernan v. Missoula City Council, 2011 MT
91, P77);
2. The 1996 Commission ordered that proposed uses be added to the Master Plan (condition of
approval #29); upon final approval of the PUD, the proposed uses became final uses, which
are binding;
3. The Development Guidelines incorporate the requirements of the 1992 Zoning Code by ref-
erence. Therefore, the requirements of the 1992 Zoning Code are enforced pursuant to BMC
38.440.030, BMC 38.440.050, and BMC 38.100.050.A.
4. The building and parking configuration disapproved by the Commission in 2024 continues to
violate the Block Frontage Standards and remains ineligible for departure.
5. The differences between the proposed Site Plan and the conditions described in the Master
Plan and Development Guidelines alter the character of the development and require amend-
ment of the PUD before they can be approved.
6. The review was pretextual and therefore improper.
An even-handed application of the current municipal code reveals that Application #25238 is
non-compliant. We ask that the approval be overturned.
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A Appendix: Evidence of Pretextual Review
We have cataloged 18 examples of pretextual hallmarks in the Letter of Approval for #25238. Three
are inconsistencies between our 2024 appeal and this appeal. 15 are contained within the Approval
Letter for #25238.
No one example, taken alone, suggests pretextual review. The consistency in the outcome is the
evidence. Each resolves in whichever direction favors approval.
A.1 Evidence Across Both Appeals
A.1.1 On the Development Guidelines:
•2024:Commission rules the Guidelines must be enforced.
•2025:Approval Letter claims compliance—while ignoring the Guidelines’ prohibition on park-
ing in setbacks and the incorporated 1992 Zoning Code.
A.1.2 On Block Frontage Standards:
•2024:Commission finds the building configuration requires departure, but is ineligible.
•2025:Approval Letter approves the identical configuration without departure—and without
mentioning the Commission’s finding.
A.1.3 On the Master Plan:
•2024:The Director’s memo represents to the Commission that the Master Plan Map is an
“official, stamped copy.” Commission relies on this to find the record sufficient for review.
•2025:Approval Letter characterizes the same document as “idealistic” with “imposes no
restriction.”
A.2 Evidence in the Approval Letter
A.2.1 Hallmark 1: Contradictory Characterizations
The Restaurant.The West Building is presented as a “shell” with no entitled uses—yet includes
a detailed restaurant floor plan with kitchen, bar, and outdoor dining. The restaurant must exist
for block frontage purposes (BMC 38.510.020.F.3 requires the primary facade to face the street,
and the restaurant entrance is the only basis for claiming compliance). But the restaurant must
not exist for use limitation purposes (BMC Table 38.310.040.A caps restaurants at 20% of floor
area; the depicted restaurant exceeds 30%). There is no state in which the building complies with
both requirements. A genuine review would recognize that relying on the restaurant layout for one
standard requires analyzing it under the other.
The Master Plan.In February 2024, the Director’s Memo identified the Master Plan as an “official
stamped copy” and “critical component” of the PUD. In 2025, the Approval Letter characterizes the
same document as “idealistic” with “no restriction.” A document cannot be authoritative enough to
satisfy review requirements but too idealistic to impose limits.
The Market Study.The Letter of Approval states Condition of Approval #29 was “satisfied”
when the Market Study was submitted—yet the uses that study validated are now described as
granting “no restriction.” The Commission required proposed uses before a market study could be
13
conducted. The developer added a Village Store. The study validated those uses. The Commission
approved the PUD based on that validation. The City now claims the benefit (condition satisfied)
while disclaiming the restriction (validated uses are binding).
A.2.2 Hallmark 2: Unexplained Reversals on Identical Facts
Block Frontage (2020 →2024 →2025).The building configuration has remained consistent across
three reviews. In 2020, the Concept Review found that the configuration violated block frontage
standards. In 2024, the Commission agreed and found the departure criteria were not met. Deputy
Mayor Morrison observed that “the effort to apply these departures is really an effort to make
the building work on a lot that doesn’t accommodate such development.” In 2025, the identical
configuration was approved without departure and without any explanation as to why prior deter-
minations no longer apply. When identical facts produce opposite conclusions without explanation,
the decision is not based on standards.
The 2020 Concept Review.When the PUD’s authoritative Approved Final Plan was available
for review in 2020, the Concept Review identified the applicable standard as “B-1 pursuant to the
1998 Sundance Springs Planned Unit Development Master Plan” and applied 1992-era requirements
along with requirements of the then-current BMC. Once the authoritative documents were lost, the
2025 Approval Letter characterizes the Master Plan as “idealistic” and does not acknowledge 1992
standards. The only material change was the loss of documents—and that loss produced a reversal.
The 2004 Enforcement Precedent.In 2004, when a residential lot encroached into the PUD’s
required setback, the Commission required a formal PUD amendment, describing the encroachment
as “illegal.” In 2025, a commercial parking lot encroaches into the same type of setback and is
simply approved. Same documents, same type of violation, opposite treatment.
A.2.3 Hallmark 3: Selective Enforcement
The Commission ruled in Appeal 23214 that the Development Guidelines are “integral to this PUD”
and must be “considered and applied.” The Approval Letter claims compliance. But enforcement is
selective. Building height, roof pitch, materials, eave depths, and fascia dimensions are analyzed and
found compliant—none of these provisions constrain the project. Section 8.3(c), which prohibits
construction outside the buildable area, is not mentioned—and parking is approved in the rear
setback. The 1992 Zoning Code incorporated by reference in the Guidelines’ introduction is not
applied. The line between provisions enforced and provisions ignored tracks perfectly with whether
they help or hinder approval.
A.2.4 Hallmark 4: Missing Required Analysis
BMC 38.440.030 Thresholds.The code specifies thresholds for administrative approval: less than 5%
increase in floor area, less than 20% change in building location, no change in character. Application
#25238 exceeds these thresholds. The Approval Letter contains no calculation of floor area increase,
no measurement of building location deviation, and no assessment of character change. The term
“38.440.030” does not appear. If you don’t perform the analysis, you cannot fail it.
Block Frontage Departure.The 2022 application sought departure for this layout. The 2024
Commission found departure was required but criteria were not met. The Commission found the
east building in violation of a specific requirement of the Block Frontage Standard, but the Approval
Letter makes no analysis of the east building against the block frontage standards. A genuine review
would explain why departure is no longer required and how the east building meets the violated
requirement cited by the Commission in 2024. Instead, the prior finding simply disappears.
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A.2.5 Hallmark 5: Selective Silence
Public comments cited BMC 38.100.050.A (most restrictive standard governs), BMC 38.100.050.C
(holistic interpretation), BMC 38.440.030 (administrative approval thresholds), BMC 38.440.050
(compliance with PUD terms), and BMC 38.700.110.L (residential adjacency definition). The Ap-
proval Letter is silent on each. Specific violations were identified with code citations: parking
prohibited in setbacks under the Development Guidelines, landscape buffers required under Table
38.510.030.C, trees required under BMC 38.550.050. No response. Appellant Poole’s comment con-
tained 34 citations to the 1992 code and 14 citations to BMC 38.440. The Approval Letter contains
zero references to either. Legitimate review engages contrary arguments.
A.2.6 Hallmark 6: Definition Substitution
Residential Adjacency.BMC 38.700.110.L defines a “lot with residential adjacency” as one abut-
ting residential zoning. The site abuts R-S zoning on three sides. The Approval Letter found no
residential adjacency because “open space” intervenes—but open space is a use, not a zoning desig-
nation. The definition was provided in public comment. The Approval Letter does not address it; it
simply applies a different definition that produces the preferred result. This substitution eliminates
requirements for parking lot screening, landscape buffers, and trees.
Primary Facade.BMC 38.510.020.F.3 requires buildings to present the “primary facade” to
the block frontage. The West Building’s primary facade faces the parking lot. The Approval
Letter justifies compliance because “an entrance” faces the street. The current BMC requires that
the “primary facade” address the street; the Approval Letter applied “an entrance.” Substituting
achievable standards for actual standards is not interpretation—it is revision.
A.2.7 Hallmark 7: Misrepresentation
The Commission’s 2024 Ruling.The Commission ruled that the current code governs review. The
Approval Letter treats this as excluding 1992 standards. But the current code—BMC 38.440.030,
38.440.050, and 38.100.050.A—requires enforcement of all PUD terms, including the Development
Guidelines that incorporate 1992 requirements. The ruling identified the rulebook; the Approval
Letter misrepresents it as excluding specific aspects of the rulebook’s contents.
Commissioner Statements.The Approval Letter states that “no Commissioner cited the Master
Plan as rationale for supporting their findings” and implies this means the Master Plan need not
be enforced. But silence is not a ruling. The Commission did not address the Master Plan; it
cannot be inferred that the Commission authorized disregarding it. The Municipal Code and 1996
Commission order exist independently of the 2024 proceeding.
A.2.8 Hallmark 8: Deferral
The site plan fixes building footprints, parking ratios, and infrastructure. The Approval Letter
characterizes the buildings as “shells” with no entitled uses—but the West Building includes a
kitchen, dining area, bar, and outdoor patio. The Approval Letter acknowledges: “The restaurant
area shown on the site plan does not comply with the maximum allowed size.” Yet the site plan
is approved because uses are “preliminary.” This mechanism approves by deferral what cannot be
approved directly. The shell is built. The use is deferred. When the owner later seeks occupancy
for a space purpose-built as a restaurant, variance becomes the path the "only logical path." This
is not analysis—it is circumvention.
15
Owner Property Address Mailing Address Tax Records Verified Notes Geocode
(Y/N) Sept Dec 2024
Sundance Springs Residential Owners Assoc Inc PO Box 933 Bozeman, MT 59771 N (non-valued property)Adjoiner Contiguous 06-0798-25-1-18-01-6500
City of Bozeman Ellis View Loop PO Box 1230 Bozeman, MT 59771 N (non-valued property)Adjoiner Not Contiguous 06-0798-25-1-07-12-6500
Lisa & Henry Miklush 3775 Ellis View Loop 3775 Ellis View Loop, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-08-12-0000
Lisa & Henry Miklush 3775 Ellis View Loop 3775 Ellis View Loop, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-08-10-0000
Geoffrey Poole 3772 Ellis View Loop 3772 Ellis View Loop, Bozeman, MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-07-10-0000
Kara & Erin Gallinger 3760 Ellis View Loop 3760 Ellis View Loop, Bozeman, MT 69715 Y Adjoiner Not Contiguous 06-0798-25-1-07-08-0000
Catherine Zimmer 4405 White Eagle Cir.4405 White Eagle Cir, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-18-51-0000
Ryan Lafoley S 3rd Ave 206 Ridge Trl, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-20-01-0000
Shelley & Gordon Vance 3008 Macnab St, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-01-10-0000
Shelley & Gordon Vance 3008 Macnab St, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-01-20-0000
Ellis View Estates Sub Homeowners Assoc Ellis View Loop 1627 W Main St #370, Bozeman MT 59715N (non-valued property)Adjoiner Not Contiguous 06-0798-25-1-07-01-6500
SITE NAME: Sundance Springs Phase 1B Comm Lot 2
LEGAL DESCRIPTION: Sundance Springs Sub Ph 1B, S25, T02 S, R05 E, Acres 1.31, Comm Lot 2 Plat J-257
OWNER: 406 Coal Blowers LLC
N1 Noticing Procedure