HomeMy WebLinkAbout07-14-26 Public Comment - S. Boyd - Public comment on NCOD rewrite process From: Scott and Frances Boyd
To: Bozeman Public Comment
Subject: [EXTERNAL]Public comment on NCOD rewrite process
Date: Tuesday,July 14,2026 11:26:17 PM
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Bozeman City Commission
Bozeman Historic Preservation Advisory Board
RE: Public comment on the NCOD Design Standards update, and the single question
Section 2.3 will decide.
Dear Mayor, Commissioners, and Board Members:
The NCOD Design Standards update is long-requested, long-deferred, and long-paid-for,
and its arrival is welcome. The 2006 guidelines have served the district well for two
decades, and at the level of their basic design,they still do: the framework of policy
statements, defined compliance terms, and an applicant-borne impracticability
exemption is sound, and remains good practice today.What the update should do is not
start over from whole cloth but clarify and extend a document that fundamentally
works: sharpen the handful of points that have proven confusing to some readers, even
though the document defines them, and add the guidance for larger buildings that a
smaller, earlier Bozeman had less need to write. That is a worthwhile and overdue
project, and this letter supports it.
This letter concerns one subsection of the draft outline, and I believe it is the subsection
on which everything else turns.
Section 2.3: "Regulatory vs Advisory (Non-regulatory)."
The Lakota Group's July 2 document summary describes it plainly: Section 2 "will also
explain how the Standards include both advisory and regulatory guidelines."Which
provisions bind and which merely advise is the question that determines whether the
NCOD continues to function as a conservation overlay. The four tiers,the eleven sections,
and the materials matrices are all downstream of it.
I am writing to ask the Commission and the Board to make that decision openly and
deliberately, and for the Commission to make it on a recorded vote, rather than
allowing it to be settled by a drafting convention inside a consultant's document.
What this letter is not: it is not a request that the guidelines be frozen in place. They
would benefit from clarification and from more to say about larger buildings, and the
draft makes real improvements in organization and scope that are worth keeping. My
concern is the opposite of nostalgia: that in the course of a rewrite meant to clarify and
extend a working document,the one thing that should be preserved, an enforceable
check on mass and scale, is at risk of being quietly set aside.
And there is a reason this question is live now rather than academic. In the recent
Unified Development Code update, the Commission deliberately increased base-zoning
density across much of the city, including within the NCOD. That was a legitimate choice,
and I am not objecting to it. But it makes the present question unavoidable: now that
more units are permitted on more lots,the remaining question is what those units will
look like where they meet the street. If a parcel permits eight homes,there is no
reason eight homes should not be built there, provided the building that holds
them sits properly on its block. That is not an obstacle to the Commission's density
goals. It is the definition of the "gradual and predictable increase in density"that the
City's own growth policy calls for.
1. This Is Not Growth Versus Preservation, and the Ordinance Says So
The choice is repeatedly framed as growth against preservation, a living city against a
museum. The NCOD's own text refuses that framing, and has since 1991. BMC §
38.340.010, on the books for thirty-five years:
"New construction will be invited and encouraged provided primary
emphasis is given to the preservation of existing buildings and further provided
the design of such new space enhances and contributes to the aesthetic
character and function of the property and the surrounding neighborhood.
Contemporary design will be encouraged, provided it is in keeping with the
above-stated criteria, as an acknowledged fact of the continuing
developmental pattern of a dynamic, changing community."
New construction is invited. Contemporary design is encouraged. Change is "an
acknowledged fact."Whoever wrote that was not trying to freeze Bozeman; they were
trying to ensure that the city that was plainly coming would be built with the
neighborhoods rather than on top of them. The same posture runs through the
guidelines,which expressly"anticipate" buildings "larger than many of the earlier
structures"; through Subchapter 4B (2015),which calls varied mass and scale
"inevitable" and part of"a more interesting urban pattern that continues to evolve"; and
through the City's growth policy,which speaks of a "gradual and predictable increase in
density" and a "sense of place."A member of this Commission put it best from the dais in
2025: the overlay"promises that growth and development will happen with the
neighborhood, not in spite of it."
The honest objection, and the honest answer. There is a fair version of the
counterargument, stated by a former mayor: the guidelines "give very little guidance
when it comes to higher density urban development." There is something to that. The
2006 document was written for a smaller city and says more about houses than about
large apartment buildings, and it can and should say more about the latter. That is a
reason to add to the document,which is exactly what this process is for. It is not a
reason to treat the document as binding on no one.A thin patch of guidance is not a
repeal of the standard, and the drafters anticipated exactly this situation: under Part
II.F,where "the detailed design guidelines do not appear to address the situation, this
general policy statement shall serve as the basis for determining the appropriateness of
the proposed work." The gap was covered by design. The right response to a gap is to
fill it with more specific standards for larger buildings, not to declare the whole
document advisory.
2. Density and Bulk Are Different Variables, and the Guidelines
Regulate Only One
If the Commission wants more housing inside the NCOD, it should know something
largely absent from this debate: nothing in the NCOD guidelines limits how many
homes may be built on a lot. No unit cap, no maximum density, no minimum lot area
per unit, no floor-area ratio. Every one of those levers lives in base zoning, which this
Commission controls directly.What the guidelines regulate is shape, and shape and
density are not the same variable.
Read the multi-household guidelines as instructions rather than restrictions: step the
height down toward the street and the rear; divide large masses into modules similar in
size to nearby buildings; develop a large lot with several buildings rather than one; break
a long facade into subordinate planes.And most tellingly:
"The back side of a building may be taller than the front, and still appear to be
in scale, if zoning regulations permit and the change in scale will not be
perceived from public ways."
In 2006, the drafters wrote an express permission to build taller at the rear, out of sight
of the street. That is not someone trying to stop housing. It is a designer telling a
developer where to put the extra floors. Not one of these guidelines removes a single
dwelling unit.
The City has already been told where its density is. The 2015 report's own
recommendations for infill inside the NCOD were ground-floor ADUs,by-right
development on small platted lots, reduced lot widths and minimum lot sizes, increased
lot coverage, and reduced parking. Every one of them adds homes without adding
bulk, and the report attached its own condition: such development"should have
appropriate standards for context sensitive design." That advice was largely not taken.
The honest concession. Contextual massing is not free. Stepping a building down costs
floor area; breaking a slab into modules costs money; small-lot infill is slower to finance.
These are real costs. So the claim is not that compatibility is costless. It is narrower, and
it is enough:
Mass-and-scale review shapes density. It does not prohibit it.
If the added cost of shaping density well is what stands between Bozeman and the
housing it needs,the Commission should confront that cost directly and pay it directly,
through subsidy, land, fee waivers, or density bonuses tied to good form.What it should
not do is close the gap by declaring the standard inapplicable. That does not make
contextual housing cheaper. It only stops asking for it.
3. What the Code Already Says, Before Anyone Drafts a Word
The rewrite is being written into an existing code that the Commission re-adopted,
unchanged,through Ordinance 2151. That architecture answers several of the questions
the rewrite is being asked to answer, and the drafting should either work within it or
amend it in the open.
• The code will incorporate the new NCOD Design Standards by reference,
and that reference is what gives them force. BMC § 38.110.010 gives any
document referenced by title in Chapter 38 "the meaning, scope, and authority
granted by this chapter and identified in the document." Once Chapter 38 refers to
the adopted NCOD Design Standards by title, as it now refers to the 2006
guidelines,those Standards carry regulatory authority whether their cover reads
"Guidelines" or"Standards." The name on the cover does not fix legal effect; the
code does, and so does the document's own text. (This is a separate point from the
Secretary of the Interior's Standards for Rehabilitation, discussed in Section 6,
which the code incorporates through a different provision.)
• The code makes that document mandatory in review. BMC §
38.240.020.E.4: the review authority"must be guided by" the guidelines,
expressly"for new structures," "to determine whether the proposal is compatible
with any existing or surrounding structures." Under§ 1.01.030.A.11, "must" is
mandatory.
• Mass and scale are already in the code, not merely in the guidelines.
BMC § 38.240.020.E.2 provides that compatibility review"must focus upon"
height,the relationship of building masses and spaces, and scale. Even if the new
Standards were entirely advisory, this provision would remain and would
still require review to address mass and scale.A Standards document that assigns
mass and scale to advisory status does not remove it from COA review; it leaves
the reviewer applying a mandatory code criterion with no adopted guidance. That
is the worst of both worlds, and the drafting should be designed to avoid it.
• Within the NCOD, the overlay supersedes Article 5. BMC § 38.500.020.A.1:
Article 5 (Project Design) prevails over the rest of the UDC "unless otherwise
noted," and then notes exactly one exception,that within the NCOD the overlay's
provisions supersede Article 5, and may be displaced only where doing so helps
development"better meet the purpose of the NCOD." If the Commission wishes to
change that allocation,the place is the ordinance, not a standards document.
• The code knows how to subordinate the NCOD, and did so once. BMC §
38.520.080.13.2 gives a base-zoning provision precedence over the overlay in
exactly one instance: structured parking in the R-D and 13-2M districts. That the
drafters wrote one narrow, express exception is strong evidence that they did not
intend a general, silent one.
• Conflicts are already resolved, and not by balancing. BMC § 38.100.050.A:
where an internal conflict exists, "the most restrictive or most specific
requirements, or those imposing the higher standards, govern." That is a conflict
rule, not a balancing test.
None of this forecloses any policy outcome. It identifies which decisions require an
ordinance and which can be made in a standards document, and that distinction should
be settled before drafting rather than discovered after.
4. The Cost of Ambiguity Has Been Paid for a Decade, and Not by
Everyone Equally
The reason to settle this in the rewrite is that the current document's perceived
ambiguity has already produced a decade of inconsistent readings, in public, by the City
itself. I say perceived deliberately: the document defines its own operative terms,
including"should,"which Appendix B expressly makes a term of required compliance.
The confusion some readers report is not a defect in what the document says; it is a
reason to state plainly, in the rewrite, what the document already means.And it bears
emphasis that no court, and no legal opinion, has ever held the NCOD guidelines
unenforceable. The "not compulsory" position is an interpretation advanced by City
staff. It has never been tested and adopted by any tribunal, and the code's own language,
quoted throughout this letter, runs the other way.
The small have been held to it; the large have not.A sitting Commissioner put it
plainly from the dais in 2025: residents wanting to remodel a house "have had to jump
through numerous hoops,"whereas for a large project, "that's just optional."A deputy
mayor had found the year before that a large project was held to "a lower design burden
of proof than smaller residential projects." The public has said the same across many
hearings: a homeowner replacing windows on a 1905 house is held to the document
closely,while a large project is told the same document is guidance.A standard that
binds the small and yields to the large is not one standard. It is two.
The City's own files contain the proof, and it is close to a random example. In 2013,
an applicant proposed to demolish a house at 815 South 7th Avenue and build two
townhomes. The review was thorough: staff applied the predecessor of§ 38.240.020.E.2,
which requires review to "focus upon" height, mass, and scale, and began with height;
measured the project against the actual heights on the block; quoted the guidelines by
chapter and number, including"the front wall of a new structure should not exceed two
stories in height"; acknowledged where the narrow lot made a stepdown impossible; and
required a Certificate of Appropriateness with Deviation,which the applicant had to
justify. The appeal came to this body,which denied it and upheld the approval,as staff
recommended, but first amended the motion 5-0 to reduce the building's height by
four feet so it would sit better beside its neighbor.
That building was twenty-five feet ten inches tall. The same document that made a
homeowner justify a four-foot reduction on a twenty-six-foot pair of townhomes has
more recently been treated as advisory when applied to fifty-foot apartment buildings.
Two points, in fairness. First, nothing has changed in the meantime. The provision staff
applied in 2013 is, in substance and nearly in wording, § 38.240.020.E.2 today; the
guidelines they quoted by number are the same guidelines, same numbering, in force
now.Whatever explains the difference between the reviews, it is not a change in the law.
Second,that 2013 review arguably applied the guidelines too strictly; a four-foot
condition on a pair of townhomes is fussy, and I would not defend every judgment in the
file. But that sharpens the point rather than blunting it. The 2013 record proves that
City staff are entirely capable of taking the full document, applying it policy statement by
policy statement and guideline by guideline, acknowledging where a project cannot
comply, and reaching a defensible result, rather than balancing the document against
base zoning and declaring it non-compulsory. The capability was never in question. What
changed is the decision to stop.And the City's own 2015 study confirms the pattern was
not isolated: of 219 deviation requests between 2004 and 2015,building height was
the least likely category to be granted, at 72 percent, against 90 to 94 percent for
setbacks, lot width, and parking. For a decade, height was the criterion the City guarded
most closely, and every applicant understood that.
The City's own words about its own document, in sequence. None of the following is
my characterization; each is the City's, and none of it depends on any single project.
• March 2015: The then-mayor proposed reforming the guidelines precisely
because they were constraining B-3 entitlements, describing the goal as the
entitlements of B-3 "outweighing these things that are keeping us from doing it
right now."A document that keeps you from doing something binds you.
• April 2015: In the resulting report, staff noted that the framework"has
worked well in the majority of the NCOD, particularly in residential areas,"
identified the Building Form chapter as "the section that causes the most conflicts
because it places emphasis on responding to the existing built environment," and
proposed amending"should" to "shall." One does not propose to strengthen a
document one believes to be advisory.
• May 2015: The City adopted Subchapter 4B, a carve-out relieving the
guidelines' constraint in the B-3 area only.You legislate a carve-out to escape
something that binds. No analogous carve-out was adopted for the residential
areas.
• August 2017: A City planner stated on the record to HPAB that the NCOD
guidelines, being more specific,typically override more general guidance in a
conflict, and confirmed that the expiration date staff had recommended for the
interim 4B carve-out was never set, and the follow-up study had stalled when the
preservation position went vacant.
• August 2023: A staff memorandum to the Historic Preservation Advisory
Board stated that the "NCOD standards" and adopted zoning"conflict," and that
the guidelines "will need to be revised" before a proposed new district could
exist.
Pause on those last two.Advisory guidance cannot"conflict"with zoning; a
suggestion simply yields. Only a binding standard can conflict with another.And a non-
binding document never"needs to be revised" to permit anything. By the City's own
hand, in writing,the guidelines bind.
The point of the sequence. I do not suggest that anyone acted in bad faith, and I do not
believe anyone did. Each statement is a reasonable thing to say about a document that
does not say clearly what it is. That is the finding.A document that a mayor can
describe as constraining entitlements,that staff propose to strengthen from "should" to
"shall," that the City legislates a carve-out to escape, that a planner calls controlling,that
a memorandum says "conflicts" with zoning and "will need to be revised," is a document
whose meaning has come to depend on who is reading it and what they need it to say
that day.Applicants deserve better, and so do neighbors. Section 2.3 can end it. That is
why it deserves the Commission's direct attention rather than its assumed consent.
5. The Sleight of Hand the Commission Should Guard Against
There is a specific way this ends badly, and it requires no one to intend it. Mass-and-
scale review can disappear from both the base code and the overlay at once,and
the public can be shut out of the decision,without a single vote ever being taken on
it.
The mechanism is in the record, and it turns on a promise. Throughout the Unified
Development Code update,the Commission and staff said repeatedly, and on the record,
that changes to the NCOD guidelines were not part of that process and were being
deferred to the Landmark Program and to this Phase 2 rewrite. Staff told the Board that
the reorganized code made "no material changes" to the NCOD section. The Commission
intentionally held the NCOD out of the UDC update.
That deferral was not a small thing, and it should be honored as what it was: a
promise of a dedicated public process, not a waiver of one.When the City told
residents that mass, scale, height, and the rest of the NCOD's substance were being set
aside for a later, focused effort, it was telling them where and when to show up. People
who might have fought those questions during the UDC update stood down because they
were assured the questions were coming here.
So this is the venue the public was promised.And that is exactly why the risk in
this rewrite is so serious. If Phase 2 now assigns contextual mass-and-scale review to
advisory status, or omits it from the tiers into which most ordinary residential blocks fall,
then the questions the public was told to wait for are not answered here either. They are
simply removed.And because they were deferred out of the UDC update on the
understanding that Phase 2 would take them up,the deferral becomes the very
instrument by which mass, scale, and height are decided without the public ever
getting the debate they were promised. The UDC update did not decide these
questions; it postponed them. If the rewrite disposes of them by quietly dropping them,
then no proceeding ever put them to the community at all, and the "later public process"
turns out to have been the mechanism for avoiding one.
That is the sleight of hand. Not that anyone lied,but that a reasonable deferral in one
process, combined with a quiet removal in the next, can add up to a decision that four
thousand property owners were structurally prevented from participating in.
Meanwhile,two distinct positions have been advanced, and the Commission should be
clear about which it is being asked to ratify,because they are not the same:
• Position one: that the guidelines are not enforceable. City staff have taken
this "not compulsory" position in staff reports and from the podium. It is a claim
about legal status.
• Position two: that mass and scale are not properly part of a
compatibility determination at all, because base zoning and Article 5 already
govern building form. This is a claim about the content of the review, and it would
survive even if the Standards were made unambiguously regulatory tomorrow.
Both are wrong, and the second is the more dangerous,because a Standards
document can be made fully binding and still be hollow if mass and scale have been
removed from the compatibility test.And position two is live: the full draft text has not
been released,but at a recent neighborhood meeting,the Community Development
Director stated that base zoning supersedes the design guidelines. If that is the
operating premise, no care in Section 2.3 will matter; the Standards can be marked
"regulatory" on every page and still yield in every case.
The code answers it. § 38.240.020.E.2 requires that the review"must focus upon"
height, masses, and scale. § 38.500.020.A.1 provides that within the NCOD, the
overlay supersedes Article 5. § 38.520.030.B routes NCOD building-character
review back to the overlay.And the sole transition standard, § 38.260.070, operates
through a fixed table of district pairings and performs no comparison to what actually
stands nearby. Base zoning does not control compatibility. The code says the
overlay does.
The remedy is not merely to note where mass and scale live,but to say so affirmatively:
Before adopting the Standards, the Commission should state on the
record, as it has effectively done many times before and as the code
already provides,that mass and scale are a required element of any
compatibility determination within the NCOD, and instruct staff accordingly.
Not a new rule.A clarification, once and for all, of the rule already there.
6. Keep the Drafting Devices That Work, and Watch the Tiers
There is a tendency in this process to treat the 2006 document as something to be
replaced wholesale. Some of its content should indeed be updated and expanded. But its
architecture is not a problem to be solved; it is an asset to be kept. It contains three
devices that are good practice,that the profession recommends, and that the new
Standards should carry forward and sharpen rather than discard.
First, the policy statement as a mandatory residual standard. Part II.F gives each
section a policy statement with operative force: where "the detailed design guidelines do
not appear to address the situation, this general policy statement shall serve as the
basis for determining the appropriateness of the proposed work." That means there
is no gap: when an unanticipated project appears, and one always does,the reviewer is
not left with nothing. Eleven sections and four tiers are a finer mesh, and a finer mesh
has more holes. Keep the residual policy statement, and keep it mandatory.
Second, a defined compliance vocabulary.Appendix B announces that its definitions
"apply to terms related to compliance," then sorts them: "should" means "compliance is
required"; "inappropriate" means the approach "will not be allowed"; "consider" and
"preferred" are the advisory terms. Two advisory terms,three binding ones, all defined.
This is exactly what Section 2.3 is trying to do, and the 2006 drafters got there first. The
new document should have an unmistakable, improved version, and should fix the one
real flaw by using"must" and "should" the way the code uses them and marking each
standard on its face rather than in a glossary.
Third, a structured impracticability exemption with the burden on the applicant.
Appendix B lets the City excuse compliance where circumstances make it"impractical,"
but only"if the applicant demonstrates how the related policy statement still will
be met." That gives real flexibility, puts the burden where it belongs, sets the threshold
at impracticability rather than preference, and makes the policy statement an irreducible
floor. Keep all three. Improve them. Do not trade a structured exemption for
unwritten discretion.
The tiers need care, and they have a naming problem. The four tiers classify
properties by designation status,which is a test of historic significance. Compatibility of
mass and scale is a question about the neighbors, and whether the house next door is
one story has nothing to do with whether it is National Register eligible. If mass and
scale are assigned advisory status in the Context Tier,the ordinary residential
blocks that make up most of the NCOD,with no listing and no designation,will
have no binding contextual check on the size of new construction at all.And there is
a collision to fix now: the guidelines define "context" as the properties "adjacent to, and
within the same block as,the proposed project," while the draft's "Context Tier" means
nearly the opposite,the residual bucket defined by the absence of designation. Rename
the tier, and keep the defined term. The draft's own Section 1.4 already commits to the
right principle, that"buildings should respond to the surrounding context through scale,
rhythm, and site design"; the Standards should carry that through to a provision that
actually applies somewhere.
Keep the Secretary of the Interior's Standards,and keep them for new
construction. The draft does this correctly, placing the Standards for Rehabilitation
inside the new-construction section, and it should be commended for it. The code
requires it (§ 38.240.020.E.1: all COA work"must be in conformance with" the
Standards); the Standards do reach new construction (Standard 9 addresses "related
new construction" and its substance is compatibility of"massing, size, scale"); and
incorporation of these Standards is what makes a design-review ordinance legally
defensible,the difference between Anderson v. City of Issaquah (struck down for
vagueness where reviewers had only"their own individual, subjective `feelings"') and
Swoboda v. Town of La Conner(upheld because it incorporated the Secretary's
Standards). They are the City's safe harbor and the basis of its Certified Local
Government status. Do not loosen the grip on them.
Add standards for larger buildings,which is where the current document is
genuinely thin. The 2006 guidelines say a great deal about houses and comparatively
little about multi-unit and larger-format buildings, and that is the real deficiency the
rewrite should cure. This is the constructive half of the mass-and-scale point: rather than
remove contextual review because the existing guidance is sparse, the Standards should
give reviewers and applicants more to work with,with provisions written specifically
for larger buildings. Useful additions include upper-story stepback standards at the
street and at the rear; facade-length and module limits keyed to the prevailing rhythm of
the block; height-transition requirements where a larger building meets a smaller one;
and clear expectations for how a large building breaks down its perceived mass. These
are the standards a growing Bozeman actually needs, and they serve applicants as much
as neighbors, because a developer can design to a stepback line but cannot design to a
judgment rendered after the fact. The answer to "the guidelines say too little about
big buildings" is to write more about big buildings, not less about mass and scale.
Focus materials and detail requirements where they belong, and lighten them
where they do not. Prescriptive requirements about materials,window proportions,
trim, and similar detail make sense in the commercial and mixed-use character areas,
where the building is a public-facing streetwall, and in designated historic districts and
on landmark or contributing properties,where the Secretary's Standards and the
district's integrity call for them. They make far less sense applied to ordinary, non-
designated single-household and small residential properties, where they can become a
costly and intrusive second-guessing of routine choices without a corresponding public
benefit. The tier system is the right tool for drawing that line,and it should draw it
deliberately: keep materials and fine-detail review meaningful in the commercial areas
and where a historic designation warrants it, and keep it light on ordinary residences,
reserving the overlay's real regulatory weight for the things that affect the neighbors,
which are mass, scale, height, and how a building meets the street. This both answers a
legitimate complaint that the current document can be fussy about the wrong things, and
concentrates the Standards' force where it does the most good.
7. The Unfinished Survey: The Tiers Rest on Work the City Has Not
Completed
This is the fairness concern I would most like the Commission to sit with, because it is
not about growth or politics. It is about whether the new system rests on a foundation
the City actually built.
Three of the four tiers are outputs of survey and inventory work. Whether a property is
"potentially eligible," and whether a block is a coherent"Character Area," are findings,
and findings require someone to go and look. The City has been told twice,by
consultants it hired, to go and look, and has not finished.
The 2015 study found that only two new historic districts had been designated since the
overlay's inception, and named the consequence: "The same level of recognition and
protection has been given to both potential new historic districts and other non-
historically significant properties." It recommended forming districts, completing
inventory forms, continuing assessment updates, and mapping the candidates. The 2019
review recommended a windshield survey and identifying areas for a formal
architectural survey. Eleven years and seven years on,the survey is unfinished, and
no new districts have been created.
For thirty-five years, that cost nothing,because the overlay applied uniformly. The tier
system ends that, converting an administrative backlog into a property-by-
property allocation of rights.A house never surveyed, never assessed, lands in the
Context Tier, the tier of least protection, defined by the absence of a designation no one
ever attempted to make. Is that house in the lowest tier because it lacks merit, or
because nobody looked? The document cannot tell the difference, and neither can its
owner, nor the neighbor across the street, about to learn what the classification permits.
And it cuts both ways: an owner placed in a higher tier may fairly demand to know what
survey established that her block is a Character Area. Both complaints have the same
answer, and it is the answer the City has been given twice: finish the survey.
The equity point underneath: the City commissioned and paid for the preliminary work,
and paid two consultant teams to say the same thing,that the assessment is preliminary
and must be completed before properties can be sorted by significance. That advice was
not taken,while the recommendations from those same reports that reduced regulation
were pursued. It is difficult to ask owners to accept a regulatory classification built on an
assessment that the City's own consultants called unfinished. Bozeman's Certified Local
Government status also carries survey obligations, and CLG participation is a route to
federal Historic Preservation Fund pass-through money for exactly this work. If cost is
the obstacle,the Commission should be told what the obstacle is and what it would take
to remove it.
8. Who Has Already Paid, and Who Cannot Be Made Whole
Everything above concerns what the Standards will do going forward. This section
concerns something the Commission cannot fix going forward, and should weigh before
it decides.A rule enforced against some and waived for others does not merely fail
to work. It transfers value in a predictable direction.
The people who complied paid for it. Owners who were denied or conditioned; the
2015 data show more than a quarter of those who asked for extra height were refused.
Owners who redesigned to comply, paying architect fees twice and surrendering floor
area. Owners who never applied at all, the largest and most invisible class,were told
what the guidelines required and scaled down before submitting.And neighbors who,
under the current system, pay a fee to be heard while the applicant who benefits from
non-enforcement pays nothing to receive it. Set an owner who spends money to comply
beside one who is relieved of the obligation, and the City has not merely applied a
standard unevenly. It has taken value from the first and given it to the second, and
the second is usually the better-resourced of the two.
The two kinds of error are not symmetrical, and only one is permanent. If the City
applies the standards too strictly, an owner loses money, time, or floor area. Real
injuries, and I do not minimize them. But they are recoverable. The owner can reapply,
redesign, appeal, or wait for a better market. The land is still there.An owner who is
wrongly approved builds.And then the building is there.You cannot unbuild a
structure that is wildly out of scale with everything around it. The neighbors'
context is not restored by a favorable ruling two years later, because the thing that
defined it is gone. This asymmetry is why the code contains a two-year demolition stay
after a denial, why preservation law exists at all, and why residents have asked for an
interim zoning ordinance: a rule clarified after the buildings go up clarifies nothing for
the people who live beside them. When a city is genuinely uncertain whether a standard
applies,the cost of guessing wrong in one direction is not the same as the cost of
guessing wrong in the other.
The commons. The character of a Bozeman block is owned by no one and produced by
everyone on it, over decades, at their own expense, each constrained by a rule they
mostly followed. The guidelines are the mechanism that keeps any one owner from
cashing that shared asset out.When the rule is enforced against forty owners and waived
for the forty-first,the forty-first does not simply get an exemption. The forty-first
collects the value the other forty paid to create, and once collected it is gone,
permanently, for all of them. That is what non-enforcement is: not a relaxation, a
transfer. The Commission may decide,with the community's support,that Bozeman
needs the housing more than the block face; that is a legitimate judgment other cities
have reached, and it belongs to the Commission and the public.What cannot happen is
that the rule stays on the books, is enforced against those who ask permission, and is
waived for those who do not.
The reliance interest.When people bought homes in the NCOD,they bought subject to
a rule: not"no change," but that new construction would "enhance and contribute to the
aesthetic character and function of the property and the surrounding neighborhood."
The Commission has now increased base-zoning density across much of that area,
through a public process I am not challenging. But consider the combination. Upzone the
parcels, and simultaneously remove the compatibility comparison that the same
owners were promised, and you have changed the deal twice in the same direction,
and only the first change was voted on. The upzoning went through notice, hearing,
and a recorded vote. The removal of compatibility review would arrive through a
drafting convention in Section 2.3. That cuts against the public's right to participate in
decisions that affect them, because the decision that matters most to them is the one that
never appears on an agenda. If the Commission and the community decide together that
compatibility review should end, it should end by a vote, in the open. What people are
entitled to is the vote, not the outcome.
9. The Bar Should Be High, and There Are Legitimate Ways to Get
There
Whatever the Commission decides, notice what is being weighed. Bozeman was
incorporated in 1883; the NCOD was adopted in 1991. The overlay has governed the
historic core for thirty-five of the city's one hundred forty-three years, roughly a
quarter of the entire existence of the City of Bozeman. That is not a recent measure
or a passing enthusiasm; it is one of the longest-standing land-use commitments the City
has made, reaffirmed by successive Commissions,with four thousand owners arranged
around it.A commitment of that age and reach should not be narrowed on a thin margin
or a drafting convention. If contextual compatibility review is to be reduced, that change
should command broad and demonstrated public support and survive being stated
plainly to the people it affects.A change that can pass only if it is not clearly explained
has not earned its majority. This is not an argument that the NCOD is sacred. It is an
argument about proportion: the Commission raised base density through a full public
process; the compatibility question deserves no less.
And the Commission already has evidence on the premise,which it should
examine before repeating the experiment. The case for relaxing mass and scale runs:
Bozeman has an affordability crisis; more supply is the answer; design standards
constrain supply; therefore,the standards must yield. Bozeman has already run this
experiment. In 2015, it adopted Subchapter 4B specifically to relieve the guidelines in
the B-3 downtown district, expressly to accommodate "greater height and density." The
density arrived.And Bozeman's affordability did not improve; it collapsed. The City's
own 2025 economic analysis found that a household must earn roughly 182 percent of
the area median income, about$220,000 a year, to afford the median home.
Montana now has the highest home-price-to-income ratio of any state. On the
measures that matter, Bozeman is close to the least affordable place in the least
affordable state in the country.
I will be fair about what that does and does not prove. It does not prove that added
supply is useless; price pressure is largely regional and exogenous, prices might be
higher still without the new units, and the recent moderation in rents does track
thousands of new apartments. Serious economists would say all of that. But it undercuts
the confidence with which the Commission is told that relaxing mass-and-scale
standards in residential neighborhoods will deliver affordability.We loosened the
standards.We got the height and the density.We did not get the affordability, and
no one has explained why the chain that failed downtown would close on a residential
street. Before extending the 2015 approach overlay-wide,the Commission should ask
staff for the actual data on what the B-3 relaxation produced: units built, unit sizes, rents
and prices, and the share affordable at 80 percent of AMI. The City has a ten-year natural
experiment in its own permit records, and it has never been analyzed.
Mass and scale can be governed in three ways,and any is legitimate. Section 2 made
the design point that shaping a building's mass does not limit the number of homes it
holds. This section makes the institutional one: wherever the Commission decides that
shaping should happen, it must actually happen somewhere. Mass and scale can be
governed in the base code as numbers (objective, predictable, hard to apply unevenly,
and if certainty for applicants is the goal,the option that delivers it most completely); in
the overlay as a contextual compatibility standard (less predictable, more responsive to
place); or in both, as a hybrid, which is the most common arrangement among peer
conservation-district programs. I am not asking the Commission to pick one. I am
asking it to pick one explicitly, and to make the corresponding code amendments on
the same timeline as the Standards.
If the choice is the base code,the base code must actually be built to carry the load.
Bozeman's base districts set citywide maximums; they were not written to perform
contextual compatibility. Moving mass and scale there means creating finer-grained
residential districts, contextual height and stepback standards,block-face-derived limits
of the kind Raleigh uses, or a form-based overlay. It cannot mean deleting compatibility
review from the Standards and pointing at a height maximum that applies identically
from one end of the city to the other.
The City already knows what this approach looks like,because it just did it. In the
UDC update adopted in December 2025, the Commission rezoned two near-downtown
areas at their residents' request: the pocket of the Bon Ton Historic District and the
blocks near Centennial Park,both previously high-density R-4 zoning surrounded by
lower-density districts, and both inside the NCOD. Residents had petitioned for the least-
dense residential district, R-A, and the Commission adopted it. Their stated reasons were
precisely the reasons base zoning would have to serve if it is to carry compatibility: to
reflect the existing historic character of the neighborhood, to limit high-density
redevelopment out of scale with what is there, and to better align the zoning with what is
physically already on the ground.As the Inter-Neighborhood Council chair put it,the
question is "what is there?What's on the ground? How does it function?" Those
rezonings are a model of using base zoning to protect neighborhood character, and they
point directly to what the base-code option requires everywhere else.
That requirement is the survey. Bon Ton and Centennial Park could make their case
because their residents did the work themselves, block by block, to document what was
on the ground and show that R-4 no longer matched it. The City cannot zone the rest of
the overlay to match "what is on the ground" until it has determined, block by
block,what is on the ground. So if the City's genuine intention is to carry compatibility
through base zoning rather than the overlay,then it must complete the architectural
survey the 2015 and 2019 consultants called for,use it to determine the historical
significance of every neighborhood, and then amend the zoning where necessary
so that each area's district actually matches its existing built character, exactly as it
has now done for two neighborhoods that organized to prove the point.A base-zoning
approach that skips the survey and simply relaxes the overlay is not the Bon Ton and
Centennial Park model. It is the opposite: it removes the protection those residents won
while doing none of the work that justified it.
10. Bozeman Is Not an Outlier. It Has Been Held Up as an Example.
There is a version of this debate in which Bozeman's guidelines are an eccentric local
artifact the City has outgrown. The national record does not support it.
The 2006 guidelines were built on the national template,by the firm that largely wrote
it: Winter&Company, whose principal authored model guidelines used at the state
level and chaired the National Alliance of Preservation Commissions. The compliance
vocabulary, the policy-statement architecture, and the impracticability exemption are
professional practices bought from a leading practitioner. The American Planning
Association selected Bozeman's program as one of ten national case examples in Design
Review: Guiding Better Development(PAS 591, 2018),which requires that standards be
legislatively adopted, states that"no courts would tolerate a review system that involved
complete discretion by individuals," and lists as a governing principle that"applicants
are treated fairly and consistently." Its predecessor report put it sharply: "the failure of
an agency to establish in advance coherent written standards and regulations to be
applied in all cases amounts to a denial of due process." Read that next to Section 2.3: the
concern is not that a city might regulate too strictly, but too unpredictably.And the
City's own consultant, BendonAdams, called the overlay"a gutsy solution" that"made
Bozeman a pioneer in preservation of neighborhood character, scale, and context."
Those are the two words the rewrite is at risk of demoting.
Some cities have concluded that contextual size review impedes housing and have
removed it. Cambridge, Massachusetts, amended its ordinance in 2023, expressly to
encourage housing, so that its conservation-district commissions may not consider a
structure's size and shape. Cambridge is the honest version of the argument I have
heard in Bozeman.A city debated the question, decided contextual size review was in
the way, and removed it. By ordinance. In public. On a recorded vote. That option is
available to this Commission at any time. What it did not do was let the change arrive by
drafting convention.
11. What I Ask of the Commission and the Board
Fourteen requests. None asks the Commission to prejudge a policy outcome, and several
belong first to the Historic Preservation Advisory Board,which holds primary purview
over this document.
1. Assign regulatory or advisory status to every substantive provision on
the face of the provision. If a standard binds, it says "must." If it advises, it says
"consider" or "may." No reader should have to litigate the question.
2. Publish the regulatory-versus-advisory assignment, in full,as a
standalone table, at least sixty days before adoption, so the public comments
on the actual decision rather than eleven sections of prose in which it is
embedded.
3. State affirmatively, on the record,that mass and scale are a required
element of any compatibility determination within the NCOD, as §
38.240.020.E.2 already provides, and instruct staff accordingly. Not a new rule; a
clarification, once and for all, of the rule already there.
4. State where contextual mass-and-scale review will live, and if any part
moves to the base code, identify the districts and standards that will carry it and
adopt them on the same timeline.A citywide height maximum is not a
compatibility standard.
S. Preserve the three drafting devices: a mandatory residual policy
statement, a defined compliance vocabulary, and a structured impracticability
exemption with the burden on the applicant. Improve them; do not replace them
with unwritten discretion.
6. Add standards written specifically for larger buildings,which is where
the current document is thinnest: upper-story stepbacks, facade-length and
module limits keyed to the block, and height transitions where a larger building
meets a smaller one. The answer to sparse guidance on big buildings is more
guidance, not less mass-and-scale review.
7. Focus materials and fine-detail requirements on the commercial
character areas and on designated historic or landmark properties, and
keep them light on ordinary, non-designated residences. Use the tiers to draw
that line deliberately, and reserve the overlay's regulatory weight for what affects
the neighbors: mass, scale, height, and how a building meets the street.
8. Keep "context" as a defined term meaning the adjacent and same-block
properties, and rename the "Context Tier."
9. Adopt the Standards by ordinance,with the ordinance stating expressly
which provisions are regulatory.
10. Confirm whether any provision is intended to displace § 38.100.050.A, §
38.240.020.E.2 through E.4, or§ 38.500.020.A.1. If so, present those as code
amendments on the record; if not, draft the Standards to be consistent with them.
11. Do not adopt a tier map whose assignments depend on survey work not
yet done. Fund, schedule, and report on the formal architectural survey that the
2015 and 2019 consultants recommended, and provide a reclassification process
as findings come in.
12. Revisit the 2015 fine-grained-infill recommendations (ground-floor
ADUs,by-right small-lot development, reduced lot widths and minimums,
increased coverage, reduced parking). Every recommendation adds homes
without adding bulk.
13. Steer this process through the Commission and the Board,with staff and
the consultant advising, not the reverse. I say this with respect and without
impugning anyone's good faith. But the regulatory-versus-advisory question is
one on which City staff have already taken a firm public position,that the
guidelines are "not compulsory." Staff should be heard; they administer the
document and know its failures better than anyone. But a party that has
announced its preferred answer should not also frame the question, draft the
options, and decide what reaches the Commission.And the consultant works for
the City and its residents, not for the department that administers the contract.
The Commission and Board should make clear, on the record and to the
consultant team,that staffs position on the regulatory status of the guidelines is
an interpretation, not settled City policy,that interpretations and preferences
should be identified as such rather than presented as established requirements of
the code, and that the Board should see the Section 2.3 assignment before it is
embedded in a draft, not after.
12. Closing
I have tried to concede everything that can honestly be conceded. The current guidelines
would benefit from clarification and from more to say about larger buildings, and the
update is a worthwhile project. Reasonable people, including members of this
Commission,believe mass and scale belong in the base code as numbers rather than in
an overlay as a compatibility judgment, and they have respectable company nationally.
Cambridge agreed with them and acted on it.
But Cambridge held a vote.
The one outcome this process should not produce is the one it will produce by default: a
decision of real consequence to four thousand properties, made inside a subsection of a
consultant's document,that neither the Commission nor the public ever quite voted on,
and that people learn about for the first time when it is applied to a building on their
block.
Section 2.3 is a question. The Commission should answer it, out loud, and measure the
answer against the promise the City made in 1991 in its own words: that in Bozeman,
growth and development will happen with the neighborhood, and not in spite of it.
Respectfully,
Scott Boyd
Sources
Draft and current documents. NCOD Design Standards, Draft Outline (June 30, 2026)
and Document Summary (July 2, 2026); comparative analysis, draft vs. current; Bozeman
Guidelines for Historic Preservation and the NCOD (2006, amended 2015), Introduction
Parts II.E and II.F, Chapters 2 and 3, and Appendix B; Commission Resolution 3885
(2006).
Bozeman Municipal Code (as re-adopted by Ordinance 2151). §§ 1.01.030.A.8 and
A.11; 38.100.050.A; 38.110.010; 38.240.020.E.1 through E.5; 38.260.070; 38.300.020.C;
38.300.100; 38.340.010; 38.500.020.A.1; 38.520.030.13; 38.520.080.B.2.
City record. Staff report and Commission action on the 815 South 7th Avenue Certificate
of Appropriateness with Deviation (2013); "B-3 / Design Guidelines conflict" staff report
(April 2015) and Commission direction; HPAB minutes (August 2017) on Subchapter 413;
Community Development Department memorandum to HPAB (August 2023); NCOD
Design Standards Community Engagement Plan (2026).
Prior City-commissioned studies. City of Bozeman NCOD Report (2015): deviation
data (Tables 2 and 3), potential-future-districts map (Figure 12), and recommendations
on districts and inventory; BendonAdams / Orion Planning and Design NCOD Review
(2019): survey and character-area recommendations; City of Bozeman housing
affordability analysis (2025).
Professional standards and national practice. Hinshaw& Morris,Design Review:
Guiding Better Development,APA PAS Report 591 (2018); Duerksen &Goebel,Aesthetics,
Community Character, and the Law,APA PAS Report 489/490 (1999); Secretary of the
Interior's Standards for Rehabilitation, 36 C.F.R. Part 67, Standard 9; Winter&Company,
model design guidelines; BendonAdams / Orion Planning and Design NCOD Review
(2019); Cambridge, MA Neighborhood Conservation District ordinance (amended 2023);
Raleigh, NC Neighborhood Conservation Overlay Districts, UDO 5.4.3;Anderson v. City of
Issaquah, 70 Wn.App. 64 (1993); Swoboda v. Town of La Conner, 97 Wn.App. 613 (1999).