HomeMy WebLinkAbout05-05-26 Public Comment - G. Poole - Public Comment on Findings of Fact regarding Appeal #25769From:Geoffrey Poole
To:Bozeman Public Comment
Cc:tswanson46@gmail.com; nsswanson04@gmail.com; Rob Farris-Olsen; Kim Wilson
Subject:[EXTERNAL]Public Comment on Findings of Fact regarding Appeal #25769
Date:Tuesday, May 5, 2026 11:42:18 AM
Attachments:AnalysisOfFindingOfFact3.pdf
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Please find our public comment for the City Commission attached as a .pdf file
Public Comment on the Proposed Findings of Fact for Appeal #25769
May 5, 2025
Dear Mayor Morrison, Deputy Mayor Fischer, Commissioners Madgic, Bode, and
Sweeney:
Please accept our public comment on the proposed Findings of Fact for Appeal
#25769 that is currently under review.
To begin, we would like to thank the Commission for continuing until May 5, 2026
the consideration of the Findings of Fact for Appeal #25769. We were heartened by
the Commission’s willingness, as a body, to support the three Commissioners who
asked to have more time to review the proposed Findings of Fact. The 5-0 vote in
support of Commissioner Madgic’s motion to continue the decision represented
unanimity and professional deference to colleagues that we wish were more prevalent
at other levels of government today.
We’d also like to acknowledge the difficulty of your task. On one hand, the purpose
of publishing Findings of Fact is to document the rationale that supports your March
24, 2026 ruling on our appeal. On the other hand, your obligation as Commissioners
is to ensure that Findings of Fact accurately reflect the requirements of the October
22, 2025 Unified Development Code (UDC) – the Standard of Review for Site Plan
#25238.
Comments vs. re-litigation
We’d like to take a moment to forestall the argument that we are attempting to re-
litigate what has already been decided. Site Plan #25238 has been approved by the
City. We accept that the due process allowing comment on the proposed Findings of
Fact is not an opportunity to challenge your decision. The project has been approved.
That said, please bear in mind that the proposed “Findings of Fact” represent the first
time that the City has been compelled to compile a list of “just the facts” that support
the City’s position. It is the first opportunity we, as Appellants, and you, as the
Commission, have been able to assess those facts, stripped bare of complex layers of
Site Plan analysis.
Our approach to providing comments
Without question, zoning works as intended when the zoning code is interpreted
accurately and all relevant provisions of that code are applied without bias or
preference. Based on this principle, our comments on the Findings of Fact highlight
nine provisions of Chapter 38 (the Unified Development Code) of the October 22,
2025 BMC, along with the text of the Introduction to the Covenants and Articles 8.2
and 8.3.c of the Covenants’ Development Guidelines. In contrast to a pro forma
approach, this post-decision review of the Findings of Fact against key code
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requirement provides an opportunity to assess the efficacy of the Site Plan review and
appeal process, and a basis for understanding how well the process is serving the City
and its residents.
In these comments, we provide the text of each provision we discuss. We hope you
will engage with the language of the October 22, 2025 BMC and Covenants’
Development Guidelines directly as you assess for yourselves whether the Findings of
Fact represent the requirements of the BMC.
If you find that there are errors in the proposed Findings of Fact, we ask for your
willingness to grapple with the tension between the need to memorialize your decision
and your obligation as Commissioners to be stewards of the City’s record.
Specifically, we ask you to consider the following question:
“What are the legal, ethical, and practical implications of Mayor
Morrison signing the proposed Findings of Fact that support your
decision of March 24, 2026 if there is compelling evidence that the
proposed Findings are not factual?”
Summary of our analysis
Our analysis is broken into four parts, each of which shows how we believe a specific
Finding is inconsistent with the requirements of the October 22, 2025 BMC.
1.Finding of Fact #3 states that the 1992 Zoning Code cannot be applicable to
Site Plan #25238 because the Standard of Review is the October 22, 2025
BMC. We acknowledge that, for City Planning to work, new Zoning Code
must entirely replace old Zoning Code. We offer, however, that even if new
Zoning has replaces old Zoning, the terms of past Zoning would still be in
force if incorporated by reference into other legally binding development rule
and regulations. This mechanism may be rarer than hen’s teeth in Zoning Law,
but we show how it is true for the Sundance Springs PUD.
2.Finding of Fact #2 states that there is only one block frontage on Commercial
Lot #2 and that Site Plan #25238 meets the standard for landscape block
frontages. Our analysis shows that the October 22, 2025 BMC identifies Street,
Trail and Internal (e.g., parking lots) block frontages and that all three types
exist on Commercial Lot #2. The City overlooked the requirements for the
Trail and Internal block frontage types that are contained in the October 22,
2025 BMC.
3.Findings of Fact #4 and #6 state that the provisions of the Covenants’
Development Guidelines, including setback and parking location, are met by
Site Plan #25238. Our analysis shows that, when two or more of legally
adopted standards are in conflict, the October 22, 2025 BMC requires that the
most restrictive standard be applied. The City did not consistently apply the
most restrictive of all applicable standards.
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4.Finding of Fact #7 states that the Final Master Plan for the Sundance Springs
Phased PUD is neither regulatory nor binding. Our analysis shows that
permits may only be issued for those improvements indicated on the PUD’s
Approved Final Plan. Specifically, the October 22, 2025 BMC states that
improvements not so indicated can not be permitted. Neither the applicant not
the City has demonstrated that the improvements proposed by Site Plan
#25238 are indicated on the PUD’s Approved Final Plan.
Consequences for the citizens of Bozeman
On a personal note, I (G. Poole) attended the April 28 Commission meeting and
appreciated the cautious and careful way that the Commission considered how the
developer might be affected by the decision to continue the vote regarding the
proposed Findings of Fact. It is right for Commissioners to consider carefully the
impact of their findings.
On that topic, I would like to echo the observations of Commissioner Bode during
that meeting. She noted that the purpose of zoning under law is to balance the rights
of those who choose to develop property in the City with the health, safety, and
welfare of affected residents and adjacent property owners.
In that context, I will speak personally as a citizen affected by proposed development.
Like many of my neighbors, my home is my most important asset. Before purchasing
my property, I considered the requirements and limitations imposed by the Sundance
Springs PUD on the vacant commercial property adjacent to my home. If I erred in
my interpretation of those documents, that’s on me.
If you, as Commissioners, err in your interpretation of the code, I am denied due
protections described in the October 22, 2025 BMC. My capacity to enjoy my own
home peacefully is unnecessarily diminished, my property values are wrongfully
reduced, and the financial security of my upcoming retirement is unlawfully eroded.
Given the personal cost to me of any errors in the Findings of Fact, I hope you will
grant me your open mind and a margin of trust in my understanding of the municipal
code and the requirements of the PUD. I am grateful for any willingness you have to
engage directly with the language of the code, and to determine whether the proposed
Findings of Fact reflect the requirements of the October 22, 2025 BMC.
Post-review, the City is empowered to require compliance.
Although your decision to uphold the approval of Site Plan #25238 is irrevocable, we
would like to draw your attention to a provision of the Bozeman Municipal Code that
contemplates situations where the City becomes aware of non-conformance after
approval of a Site Plan. October 22, 2025 BMC 38.230.050.D states:
“Unless a deviation or variance is explicitly sought and granted in
association with a plan, all standards of [the Unified Development
P a g e 3 | 17
Code] apply whether explicitly mentioned in the record of the review
or not. An omission or oversight of a nonconformity with the
standards of this chapter in the site plan does not constitute approval
of such nonconformance. Any nonconformance which was not the
subject of an explicitly approved deviation or variance may be
required to be cured at such time the city becomes aware of the
nonconforming condition’s existence.”
Further, the applicants have received due notice that they remain accountable to the
provisions of the applicable BMC. The approval letter of Site Plan #25238 includes
the following Condition of Approval,:
“The applicant is advised that unmet code provisions or code
provisions that are not specifically listed as conditions of approval,
does not, in any way, create a waiver or other relaxation of the lawful
requirements of the Bozeman Municipal Code or State law.”
If our analysis causes you determine that the proposed Findings of Fact are
inconsistent with the October 22, 2025 BMC, and that Site Plan #25238 contains
associated nonconformities, we would ask you to exercise your authority to compel
remedy of the same in your order regarding the findings of fact. Specifically, we
would ask you to consider whether Site Plan #25238 contains lingering
nonconformities with:
the 1992 Zoning Code, pursuant to the Covenants’ Introduction and Article 8.2
of the Covenants’ Development Guidelines.
the October 22, 2025 BMC requirements for trail frontage and multi-frontage
standards, including larger building setbacks, increased widths of the
landscaping buffer between trails and parking lots, and orienting the “front and
primary facade” of buildings toward Little Horse Drive.
the October 22, 2025 BMC provision (38.100.050.A) that requires enforcement
of the most restrictive of applicable regulations, including the setback widths
and removal of parking from the setbacks.
the October 22, 2025 BMC 38.440.030.A and 38.100.080.A. When read
together (as required by BMC 38.100.050.C), there two provision requires the
City to withhold a permit until the applicant demonstrates that proposed
improvements on Site Plan #25238 are indicated on the PUD’s Approved Final
Plan.
Summary
The course of action we request would accomplish three things: 1) it would maintain
the approval of Site Plan #25238; 2) it would allow the Findings of Fact to be rectified
with the requirements of the BMC, thereby maintaining factual integrity of the City’s
record; and 3) it would restore the due protections reserved to us under the BMC
P a g e 4 | 17
while allowing development to proceed in compliance with the October 22, 2025
Standard of Review.
The Municipal Code represents a contract between the City and its Citizens that
prescribes an agreed-upon balance between the rights of a developer and the health,
safety, and welfare of affected Citizens. If portions of that contract have been
misinterpreted by the City through an honest mistake, the resulting damage to
neighbors of the proposed development is unintended, but is no less real. Once an
error or omission enters the consciousness of the City’s staff or governors, so too
enters the opportunity to correct it and restore the intended balance.
We acknowledge that standing up for our interests and those of our neighbors asks for
more of your time and energy. We are grateful for the effort you have offered and
continue to offer in support of our participation in this process.
Geoffrey Poole
Tim Swanson
Nancy Swanson
Bozeman, MT
Encl: Analyses 1, 2, 3 and 4 of Findings of Fact
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Analysis 1: Findings of Fact #3 regarding the 1992 Bozeman Zoning Code
Finding 3. The Director was correct in applying Bozeman Municipal Code standards
in place at the time the site plan application was determined adequate for review, on
October 22, 2025, as required by section 38.200.080, BMC. Code standards from
1992 are inapplicable to Application 25238.
Actions of the City
The City argued that the 1992 Standard is not applicable because the October
22, 2025 BMC is the Standard of Review.
The City interprets references to the Bozeman Zoning Code found in the
Covenants’ Development Guidelines as references to the October 22, 2025
BMC.
The City enforced terms of the October 22, 2025 Standard when terms of other
legally adopted standards were more restrictive.
Requirements of the BMC and other legally adopted development rules
1.The BMC mandates that all provisions of Chapter 38 of the BMC (the Unified
Development Code) be considered together, as a body, and requires
interpretation that gives effect to each.
BMC 38.100.050.C: “When interpreting the meaning of [Chapter 38 of the BMC, the
Unified Development Code], subsections of the chapter must be construed in a manner that
will give effect to them all as the chapter derives its meaning from the entire body of text
taken together.”
2.The BMC requires consideration of all legally adopted development standards
and, in cases of conflict between them, application of the most restrictive.
BMC 38.100.050.A: “Wherever the requirements of this chapter are at variance with the
requirements of any other lawfully adopted rules or regulations, or wherever there is an
internal conflict within this chapter, the most restrictive requirements, or those imposing the
higher standards, will govern.”
3.The Introduction to the PUD’s Covenants establishes that references to the
Bozeman Zoning Code contained in the Development Guidelines are
references to the 1992 Zoning Code.
Introduction to the PUD’s Covenants: 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. (Emphasis added.)
4.Article 8.2 of the Covenants’ Development Guidelines: 1) references the 1992
Bozeman Zoning Code (See Point 3, above) and applies the 1992 code to all
lands within Sundance Springs; 2) enforces all variances from the 1992 Code
P a g e 6 | 17
enshrined in the Covenants; and 3) enforces the current UDC “In addition” to
the 1992 Zoning Code and the Covenants.
Article 8.2 of the Covenants’ Development Guidelines
General Regulations. All lands within Sundance are subject to the zoning regulations of the
City of Bozeman except for any variances thereto granted by the City of Bozeman as shown
on the Sundance Springs plat as filed in the Gallatin County Courthouse. All such variances
to the zoning requirements of the City of Bozeman shall be specified on the final plat noted
above or within the body of this Declaration.
In addition to these Regulations, building design may be regulated by City, County,
State, and Federal regulatory agencies having jurisdiction. The Owner or his or her
agent shall be responsible to ensure conformance with any applicable regulations, and
should check with the City of Bozeman, Gallatin County, and State of Montana Building
Codes Division to verify that the most recently adopted edition of any applicable
regulation is being used. (Emphases added.)
Analysis
Applicability of past zoning. As described during Commission deliberations on March
24, 2026, a foundational principle in City Planning is that new zoning replaces old
zoning. This principle is codified in state law, which requires that development
applications be assessed only against the zoning in effect at the time the application
reaches adequacy.
When asked during the appeal hearing whether City Planners ever went back in time
and applied old zoning, the Director of Community Development told the
Commission “No.” However, a more nuanced and accurate answer could have been:
“We would only apply the terms of past zoning if compelled to do so by current
zoning.”
“Surplusage.” BMC 38.100.050.C (Point 1, above) requires that subsections of the
UDC “must be construed in a manner that will give effect to them all.” This
requirement encapsulates a legal canon against “surplusage” in statutes, which holds
that no word or provision in a legal text should be read as meaningless or without
effect. If one reading of the code renders another provision unnecessary or
inoperative, that reading is disfavored.
Requirements taken together as a body. The October 22, 2025 BMC requires that all
of the following requirements be considered together as a body, and interpreted in a
way that gives effect to each (Point 1):
The October 22, 2025 BMC requires application of the most restrictive
requirements of “all legally adopted development standards” (Point 2, above).
The terms contained in the Covenants’ Development Guidelines qualify as
“legally adopted development standards.” They were approved by the
Commission in 1996 and reaffirmed by order of the City Commission in 2024.
The Introduction to the Covenants states that all requirements of the Covenants
must be applied “beyond the minimum requirements of the Bozeman Zoning
P a g e 7 | 17
Code which exists at the date of the execution of [the Covenants].” (Point 3.)
The Covenants were executed on March 4, 1998, when the 1992 Zoning Code
was in effect.
Article 8.2 of the Development Guidelines (Point 4) states:
the “zoning regulations of the City of Bozeman” apply to Sundance
Springs Commercial Lot #2, and the Introduction establishes this as a
reference to the 1992 Zoning Code.
the variances from the 1992 Zoning Code contained in the Covenants
also apply
“In addition,” the most current regulations apply.
Taking these requirements together and giving effect to all (Point 1), the October 22,
2025 BMC compels the City to apply the most restrictive requirements of: 1) the 1992
Zoning Code, 2) the terms of the Development Guidelines, and 3) the October 22,
2025 UDC to each aspect of development on Sundance Springs Commercial Lot #2.
The City violated the surplusage restriction of the BMC. The City violated BMC
38.100.050.C (Point 1, above) when it concluded that references to the Bozeman
Zoning Code in the Covenants were invocations of the October 22, 2025 UDC. That
interpretation created surplusage in two ways. This City’s interpretation:
imparts no meaning to text in the Covenants’ Introduction, which compels
application of the zoning code existing at the time of Covenants were executed;
ignores the phrase “In addition to these regulations” at the beginning of the
second paragraph for Article 8.2.
Because of this error, the City did not consider applicable terms of the 1992 Zoning
Code as required by Article 8.2 of the Development Guidelines, and did not apply the
most restrictive of all applicable standards as required by the October 22, 2025 BMC
(Point 2).
Accuracy of Findings of Fact
Finding of Fact #3 is incorrect because it states that the 1992 Zoning Code is
inapplicable. In fact, Covenants’ Development Guidelines are legally adopted rules.
The text of Article 8.2, when read together with the text of the Introduction, enforces
the 1992 Zoning Code, the Covenants’ Development Guidelines, and the October 22,
2025 BMC. When these three sets of rules are in conflict, the October 22, 2025 BMC
compels the City to apply the most restrictive.
Analysis 2: Finding of Fact #5 regarding the block frontage standards
Finding 5. The proposed development has only one block frontage along Little Horse
Drive. Site Plan Application 25238 complies with the requirements for landscaped
block frontage found in Table 38.510.030.C of the BMC.
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Actions of the City
In the 2020 Concept Review on Commercial Lot #2, in the 2023 review of
prior Site Plan #22047, and during the 2024 appeal of Site Plan #22047, the
City recognized the existence of “trail frontages” (as defined in the BMC) on
Sundance Springs Commercial Lot #2. The City applied BMC requirements
associated with those trail frontages. In the Findings of Fact for the 2024
appeal, BMC requirements for trail frontages were cited by the Commission as
a reason for overturning the approval of Stie Plan #22047.
In 2025, during review of Site Plan #25238, the City considered only the Street
Frontage and therefore failed to apply BMC requirements associated with the
trail and internal frontages that exist on the site.
Requirements of the BMC
5.The BMC defines three types of Block Frontages: 1) Street Frontages, 2) Trail
Frontages, and 3) Internal Frontages.
BMC 38.510.020.F. Multiple frontage situations where a property and building(s) front onto
multiple block frontages or internal frontage designations. Where a property fronts onto
more than one block frontage, each building must comply with the standards for the block
frontage upon which it is located, with the following clarifications:
1.When a building or buildings is located such that it faces and is adjacent to multiple
block frontages, the orientation of the front of the building must be sited and placed on
the property in the following order of precedence:
1.Streets (all types, see subsection F.2 below).
2.Trail/Park
3.Special residential or internal roadway (parking areas/lots, block separation
corridors). (Emphasis added.)
6.Manifestations of Trail frontages include property lines with adjacent public
trails and trail easements on the site. When buildings are not oriented toward
the trail frontage, a 20-foot building setback from trail frontages and treatment
of trail frontages as “other block frontages” is required.
BMC 38.510.030.I. Trail/park frontages. Where a property fronts onto a park or a public
trail, such frontages must comply with the mixed block frontage standards set forth in
subsection D of this section. For non-residential developments/uses where the review
authority determines that an orientation to the trail would not be appropriate based on the
context of the site, the development must be subject to the standards for “other block
frontages” set forth in subsection G above, with a minimum building setback of 20 feet
from the applicable park/trail right-of-way, easement, or property line. [Emphasis added.]
7.The landscaping requirements of “other block frontages” call for a 10-foot
wide landscaping buffers between the trail and any parking lot.
From Table 38.510.030.G. “There are no parking lot location restrictions, except that a 10’
buffer of landscaping between the street and off street parking areas meeting the performance
standards of division 38.550 of this division is required.”
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8.When a building addresses both an internal and street frontage, the front and
primary facade must face the street.
BMC 38.510.020.F.3. All buildings must be placed and designed to present the front and
primary facade to the block frontage or street block frontage that is highest in the order of
precedence. [Note: The precedence order is Street > Trail > Internal, as shown in Point 5,
above]
Analysis
Trail frontages: treatment and setbacks. The north property line of Sundance Springs
Commercial Lot #2 fronts a public trail on adjacent property and the west edge of the
property contains a public trail easement. Thus, Commercial Lot #2 has two trail
frontages, as defined in BMC 38.510.020.F (Point 5, above) and BMC 38.510.030.I
(Point 6). Neither trail frontage is addressed by a building. Therefore both require 20’
building setbacks (Point 6) and 10’ landscape buffers between parking lots and trail
frontages (Point 7). These building setbacks and landscaping provisions, required by
the October 22, 2025 BMC, were not applied to Site Plan #25238 during review and
approval.
Multiple frontage situations. BMC 38.510.020.F.1 (Point 5) defines parking areas as
“internal frontages.” Building 1 of Site Plan #25238 fronts both a parking lot (an
internal frontage) and a street frontage. Therefore, Building 1 is subject to the October
22, 2025 requirements that pertain to Multiple Frontage Situations. (Point 8)
The street frontage is higher in the order of preference than the parking lot frontage
(Point 5). Therefore the front and primary facade of Building #1 must face the street.
(Point 8)
BMC 38.510.020.F.3 (Point 8) presupposes that each building will have a “front and
primary facade” that can be identified objectively. If the “front and primary facade”
can be selected arbitrarily by the applicant, BMC 38.510.020.F.3 would lose all effect
and become surplusage. Such an interpretation violates BMC 38.100.050.C (Point 1).
Further, the layout of the proposed restaurant cannot be used to determine whether the
entry facing the street is a front entrance. The City has established that these are “shell
buildings” with no approved uses.
The location of the main entrance and the longer building axis length are objective
measures of the “front and primary facade.” By these measures, the front and primary
facade of Building #1 is the long axis with the door that provides access to the entry
atrium, stairs, elevator, shared bathrooms, and all four leasable spaces. This facade
faces the parking lot instead of the street, in violation of BMC 38.510.020.F.3 (Point
8).
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Accuracy of Finding of Fact #5
Finding of Fact #5 fails to acknowledge the existence of Trail Frontages and Internal
frontages and does not recognize the block frontage standards that are applicable to
trail frontages and multiple frontage situations (38.510.020.F.1, 38.510.020.F.3, and
BMC 38.510.030.I).
Analysis 3: Findings of Fact #4 and #6 regarding the application of the
Covenants’ Design Guidelines and parking in the setbacks
Finding 4. Site Plan Application 25238 complies with design guidelines incorporated
within the Declaration of Covenants, Conditions and Restrictions for the Sundance
Springs Section II Neighborhood Services Property (design guidelines) as evidenced,
in part, by the compliant height and size of the buildings.
Finding 6. Section 8.3 of the design guidelines direct that structure setbacks are as
allowed in the Bozeman Zone Code. Staff appropriately determined setbacks pursuant
to code standards and correctly applied section 38.540.010.A.6, BMC to conclude
that parking is allowed within rear setbacks. The parking locations and configuration
in Site Plan Application 25238 comply with code and design guidelines.
Actions of the City:
The City applied general building setbacks and landscaping standards to the
Trail Frontages even though the Block Frontage Standards of the October 22,
2025 BMC impose stricter landscaping standards (10’ landscaping buffer) and
setbacks (20’) along the Trail Frontages.
The review further approved parking in the setbacks, as allowed under the
parking provisions of the modern standard. Yet the Covenants Development
Guidelines imposed a stricter standard, prohibiting parking in the setbacks.
Both actions violated the October 22, 2025 BMC’s requirement that the most
restrictive of applicable standards be applied (Point 2).
Requirements of the BMC and other legally adopted development rules
9.The Covenants’ Development Guidelines forbid parking in the building
setbacks.
Article 8.3.c of the Covenants’ Development Guidelines: 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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Analysis
Article 8.2 of the Covenants (Point 4) applies the requirements of the 1992 Zoning
Code, the Development Guidelines, and the Current BMC on the site. Each imposes a
different requirement for setbacks, parking locations, etc.
In such a case, the BMC requires that the most restrictive of the applicable standards
for setbacks and parking locations must be applied (Point 2).
When the various applicable standards are read and interpreted together as a body of
code (Point 1) and the most restrictive of conflicting standards is applied (Point 2), the
following setbacks, parking screen width, trail landscape buffer, parking location, and
parking aisle widths represent the requirements for Site Plan #25238.
Table 1: Application of most restrictive requirement for example standards from the
Modern BMC, 1992 Zoning Code, and Development Guidelines.
Source
East
Setback
West
Setback
Rear
Setback
Parking
Screen
Width
Parking in
rear
setbacks?
Parking
Aisle
Width
Modern B-1 5 ft (1)5 ft (1)10 ft (1)4 ft (4)Yes (5)24 ft
Modern Trail
Frontages
–20 ft (2)20 ft (2)10 ft (3)––
1992 Zoning
Code
8 ft (6)8 ft (6)20 ft (6)8 ft (7)No 26 ft
PUD Dev.
Guidelines
–––No (8)
Most
Restrictive
8 ft 20 ft 20 ft 10 ft No 26 ft
Met by Site
Plan 25238?
No No No No No No
(1)BMC Table 38.320.050 | (2) BMC 38.510.030.I | (3) Table 38.510.030
(2)BMC 38.550.050.B.2.a | (5) BMC 38.540.010.A.6 | (6) 1992 BMC 18.28.050
(3)1992 BMC 18.50.100.D.5.c.(1).(c) | (8) Article 8.3.c, Development Guidelines
Accuracy of the Findings of Fact
Finding of Fact #4 is incorrect because the terms of the Development Guidelines were
not consistently applied when they were more restrictive than the B-1 standard of the
October 22, 2025 code (Table 1).
Finding of Fact #6 is incorrect. When the most restrictive applicable parking location
standard is applied, parking is not allowed in the setbacks.
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Analysis 4: Finding of Fact #7 regarding the binding nature of the Master
Plan
Finding 7: The Master Plan document that Appellants contend is a binding document
requiring only one, centrally located, single-story building on the site restricted to a
use as a village store and gas station is not regulatory or binding. The Findings of
Fact and Order for Preliminary Subdivision Plat Approval of Sundance Springs
Planned Unit Development Subdivision, Phase I and for Conditional Approval of a
Zoning Planned Unit Development contemplated that subsequent site-specific design
would be required pursuant to BMC standards and expressly allows professional
offices and permitted uses listed in the B-1 zoning district.
Actions of the Applicant and the City
The Applicant provided no evidence to the City that Site Plan #25238 was
consistent with the improvements indicated on the PUD’s Approved Final
Plan.
The City approved Site Plan #25238 without such evidence.
Relevant requirements of the BMC
10.The October 22, 2025 BMC forbids administrative staff from issuing permits
for any improvement not indicated on a PUD’s Approved Final Plan.
BMC 38.440.030
A. 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].
B. Changes greater than minor changes must be processed as a PDZ subject to 38.430.
(Emphasis added)
11.The October 22, 2025 BMC establishes standards for “minor changes” –
allowable deviation from specific aspects of improvements indicated on a
PUD’s Approved Final Plan.
BMC 38.440.030.A.2
1.Minor changes are defined as follows:
a.Those developments that do not change the character of the development;
b.An increase of less than five percent in the approved number of residential
dwelling units;
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
e.… (Emphasis added.)
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12.Before any Site Plan can be approved, the applicant must demonstrate that the
proposed development is consistent with the improvements indicated on the
PUD’s Approved Final Plan, within the tolerances of allowable deviations.
BMC 38.100.080.A. It is the obligation of the person proposing the development to
demonstrate compliance with all applicable standards and regulations.
Analysis
The Approved Final Plan is a “permissive standard.” In planning and zoning, there are
restrictive vs. permissive standards. A restrictive standard defines what you can’t do –
a “black list.” Anything other than what is forbidden is allowed. A permissive
standard defines what you can do – a “white list.” A specific set of actions or
conditions that are allowed. Those not identified are forbidden.
BMC 38.440.030.A (Point 10, above) establishes the PUD’s Approved Final Plan as a
permissive standard – a white list of improvements that administrative staff are
allowed to permit. If an improvement is indicated on the Approved Final Plan, it can
be approved. If it’s not indicated on the Approved Final Plan, it can’t be approved.
Approved Final Plan. The Sundance Springs PUD’s Approved Final Plan is missing
from the City’s records. The City has identified the Final Covenants’ surviving
Commercial Development Guidelines and the surviving Final Master Plan map as a
stand-in for the Approved Final Plan for the purposes of Site Plan review. Thus, the
improvements indicated on those documents are the improvements “indicated on the
Approved Final Plan” under BMC 38.440.030.A (Point 10).
There are no specific buildings authorized in the Commercial Covenants’
Development Guidelines. Therefore, the improvements indicated on the Master Plan
are the only improvements allowed under BMC 38.440.030.A (Point 10).
Illustration #1. Let us consider six hypothetical Site Plans that might be proposed for
Commercial Lot #2.
Table 2: Six hypothetical Site Plans proposed to the City
Proposal
Plan A One 5000 sq ft Village Store; water tower; parking lot
Plan B1 One 5000 sq ft Village Store, offset 45% of width; parking lot
Plan B2 One 7000 sq ft Village Store; parking lot
Plan B3 One 5000 sq ft Office Building; parking lot
Plan C Two 5000 sq ft shell buildings; parking lot
Plan D One 5000 sq ft Village Store, offset 10% of building width; parking lot
Now let’s consider a Master Plan that shows a sketch of a “Village Store” and
Development Guidelines that limit building size to 5000 square feet.
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Here is a table of violations for each plan under BMC 38.440.030.A (Point 10) and
BMC 38.440.030.A.2 (Point 11).
Table 3: Code violations for each Site Plan under the “Village Store” Master Plan.
Violation Reason
Plan A 38.440.030.A Water tower not indicated on Approved Final Plan
Plan B1 38.440.030.A.2.d Building offset exceeds 20% of building width.
Plan B2 38.440.030.A.2.c Building size exceeds Development Guidelines limit
Plan B3 38.440.030.A.2.a Character of development has changed
Plan C 38.440.030.A 2nd building not indicated on Approved Final Plan
Plan D ––
Of the hypothetical Site Plans, only Plan D can be approved. The BMC allows
approval of the other Site Plans when the application is appropriately processed as a
PDZ (Point 10).
Illustration #2. Now consider this rendering of a Master Plan, which has no buildings
and no parking lot.
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In this case, all hypothetical Site Plans violate BMC 38.440.030.A (Point 10) because
each proposes a building and parking lot, neither of which is indicated on the
Approved Final Plan. All Site Plans – even Plan D – cannot be permitted (unless
processed as a PDZ under BMC 38.440.030.B).
Purpose and Intent of a PUD. Fundamentally, a PUD is a set of conditions that
deviates in some way from the requirements of the BMC, but has been certified by the
City Commission as implementing the intent of the BMC.
Recognizing this fact, each of the above illustrations makes sense. Logically, an
applicant proposing to do something other than what the Commission approved under
a PUD should have to bring the proposed changes back to the Commission.
The fallacy of Staff’s position. Even though the Master Plan acts as a white list under
BMC 38.440.030.A (Point 10), Staff continue to adopt positions that attempt to empty
the white list of allowable commercial improvements, claiming that fewer
improvements on the Master Plan would confer more relief from development
restrictions. Yet the BMC states that the opposite is true. The more improvements you
add to the white list, the more permissive the PUD (See Illustrations 1 and 2, above.)
In the Commission Memo written by Staff for the most recent appeal (#25769), dated
February 24, 2026, Staff identified the map labeled “Sundance Springs Master Plan”
as the Master Plan. That map shows a building labeled Village Store and parking lot
on Commercial Lot #2, and six generic buildings on the adjacent Commercial Lot #1.
Yet Staff state:
“As such, despite the conceptual sketch buildings depicted on the
Master Plan document, the PUD does not contemplate any proposed
development on the commercial sites. Because there is no development
proposed, there are no applicable amendments to the final plan as
prescribed by BMC 38.440.030.”[Emphasis added.]
The logic here is faulty. According to the plain text of BMC 38.440.030.A (Point 10),
if there are no improvements indicated on the Approved Final Plan, nothing can be
approved without processing the Site Plan as a PDZ. (Illustration 2)
On that same day, during the Appeal hearing, Staff claimed that a different map – the
“Site Plan for the Sundance Springs Subdivision” – is the Master Plan. This version of
the Master Plan shows no buildings at all. Although the arbitrary change in the City’s
position is a problem, the larger immediate problem for the City is that Staff have
created a more definitively empty white list. (Illustration 2.)
Pursuant to BMC 38.440.030.A (Point 10), the Master Plan says “Here are the
improvements indicated on the Approved Final Plan. These are the things that can be
approved.” Staff keep adopting positions that create a Master Plan showing no
allowable improvements.
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Fallacies of counter arguments. Residential development has occurred on lots where
houses are not shown on the Master Plan. This has been put forth as evidence that
development can occur under the PUD on lots that show no improvements. However,
BMC 38.440.030.A states that the Approved Final Plan (which encapsulates both the
Final Master Plan and Final Development Guidelines) must indicate allowable
improvements.
The Residential Development Guidelines contained in the Residential Covenants are
part of the Approved Final Plan. Those Covenants specify that one home is allowed
on each residential lot.
Second, there is concern that the “Village Store” use specified on the surviving
“Sundance Springs Master Plan” map (stamped April 8, 1997) is more limiting than
the standard of “all uses of the B-1 zone” specified in the Preliminary PUD’s
Conditions of Approval (established in January of 1996). The PUD applicant was
required to create the Final Master Plan as part of the Final PUD application. When
creating the Final Master Plan for the PUD, for reasons known only to the PUD
applicant, the PUD applicant chose to limit development on Commercial Lot #2 to a
“Village Store” while allowing all B-1 uses on Commercial Lot #1. Under the BMC a
PUD applicant is free to impose additional restrictions in the Approved Final Plan,
beyond those imposed by the Commission on the Approved Preliminary Plan.
Further, if no buildings are shown on the Final Master Plan (as now claimed by the
City), the issue of “Village Store” vs. “all B-1 uses” becomes moot. Any proposed
building cannot be approved without processing the proposal as a PDZ (See
Illustration #2, above).
Accuracy of Finding of Fact #7
Finding of Fact #7 is something of a Red Herring. By raising the issue of whether the
Master Plan is “binding” or “conceptual,” Finding of Fact #7 distracts from the
requirements of the BMC.
BMC 38.100.080.A (Point 12) states that the applicant has an obligation to show that
the Site Plan meets all applicable standards.
The indicated improvements on the Approved Final Plan are a white list for
development under BMC 38.440.030.A (Point 10). To meet the requirements of this
provision and BMC 38.440.030.A.2 (Point 11), the applicant would have to show that
the PUD’s Approved Final Plan explicitly indicates two buildings at the proposed
locations housing something other than a Village Store.
The applicant has not met this standard. There is no evidence in the record that the
Final Master Plan or Final Development Guidelines indicate the improvements
proposed by Site Plan #25238. When read together, BMC 38.100.080.A (Point 12)
and BMC 38.440.030.A (Point 10) prevent approval of the proposed buildings.
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