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HomeMy WebLinkAbout07-15-26 Public Comment - M. Bateson - Re_ Public comment on NCOD rewrite processFrom:Mary Bateson To:Scott and Frances Boyd; Bozeman Public Comment Subject:[EXTERNAL]Re: Public comment on NCOD rewrite process Date:Wednesday, July 15, 2026 7:27:07 AM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. Scott Boyd, thank you for making your comments to the City Commission. I hope that they heed your words. With this reply, I am sending my endorsement of your comments to theCity. Mary Bateson, Bozeman resident On Tue, Jul 14, 2026, 11:15 PM Scott and Frances Boyd <sfmclboyd@sbcglobal.net> wrote:Bozeman City CommissionBozeman 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 fortwo decades, and at the level of their basic design, they still do: the framework of policystatements, defined compliance terms, and an applicant-borne impracticabilityexemption is sound, and remains good practice today. What the update should do isnot start over from whole cloth but clarify and extend a document that fundamentallyworks: sharpen the handful of points that have proven confusing to some readers, eventhough the document defines them, and add the guidance for larger buildings that asmaller, earlier Bozeman had less need to write. That is a worthwhile and overdueproject, and this letter supports it.This letter concerns one subsection of the draft outline, and I believe it is thesubsection 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 alsoexplain how the Standards include both advisory and regulatory guidelines.” Whichprovisions bind and which merely advise is the question that determines whether theNCOD continues to function as a conservation overlay. The four tiers, the elevensections, 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 thanallowing 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. Theywould benefit from clarification and from more to say about larger buildings, and thedraft makes real improvements in organization and scope that are worth keeping. Myconcern is the opposite of nostalgia: that in the course of a rewrite meant to clarify andextend a working document, the one thing that should be preserved, an enforceablecheck 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 recentUnified Development Code update, the Commission deliberately increased base- zoning density across much of the city, including within the NCOD. That was alegitimate choice, and I am not objecting to it. But it makes the present questionunavoidable: now that more units are permitted on more lots, the remaining questionis 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 theCommission’s density goals. It is the definition of the “gradual and predictable increasein density” that the City’s own growth policy calls for. 1. This Is Not Growth Versus Preservation, and the Ordinance Says SoThe choice is repeatedly framed as growth against preservation, a living city against amuseum. 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 primaryemphasis is given to the preservation of existing buildings and furtherprovided the design of such new space enhances and contributes to theaesthetic character and function of the property and the surroundingneighborhood. Contemporary design will be encouraged, provided it is inkeeping 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 “anacknowledged fact.” Whoever wrote that was not trying to freeze Bozeman; they weretrying to ensure that the city that was plainly coming would be built with theneighborhoods rather than on top of them. The same posture runs through theguidelines, which expressly “anticipate” buildings “larger than many of the earlierstructures”; 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 predictableincrease in density” and a “sense of place.” A member of this Commission put it bestfrom 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 thecounterargument, stated by a former mayor: the guidelines “give very little guidancewhen it comes to higher density urban development.” There is something to that. The2006 document was written for a smaller city and says more about houses than aboutlarge 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 areason 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 PartII.F, where “the detailed design guidelines do not appear to address the situation, thisgeneral policy statement shall serve as the basis for determining the appropriatenessof 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 OneIf the Commission wants more housing inside the NCOD, it should know somethinglargely 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 areaper unit, no floor-area ratio. Every one of those levers lives in base zoning, which thisCommission controls directly. What the guidelines regulate is shape, and shape anddensity are not the same variable.Read the multi-household guidelines as instructions rather than restrictions: step theheight down toward the street and the rear; divide large masses into modules similarin 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 bein 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 ofsight of the street. That is not someone trying to stop housing. It is a designer telling adeveloper 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 ownrecommendations for infill inside the NCOD were ground-floor ADUs, by-rightdevelopment 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 “shouldhave appropriate standards for context sensitive design.” That advice was largely nottaken. The honest concession. Contextual massing is not free. Stepping a building downcosts floor area; breaking a slab into modules costs money; small-lot infill is slower tofinance. These are real costs. So the claim is not that compatibility is costless. It isnarrower, 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 thehousing 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 itshould not do is close the gap by declaring the standard inapplicable. That does notmake contextual housing cheaper. It only stops asking for it. 3. What the Code Already Says, Before Anyone Drafts a WordThe rewrite is being written into an existing code that the Commission re-adopted,unchanged, through Ordinance 2151. That architecture answers several of thequestions the rewrite is being asked to answer, and the drafting should either workwithin 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 § 38.110.010gives any document referenced by title in Chapter 38 “the meaning, scope, andauthority granted by this chapter and identified in the document.” Once Chapter38 refers to the adopted NCOD Design Standards by title, as it now refers to the2006 guidelines, those Standards carry regulatory authority whether theircover reads “Guidelines” or “Standards.” The name on the cover does not fixlegal effect; the code does, and so does the document’s own text. (This is aseparate point from the Secretary of the Interior’s Standards for Rehabilitation,discussed in Section 6, which the code incorporates through a differentprovision.)• 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 iscompatible 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 andwould still require review to address mass and scale. A Standards documentthat assigns mass and scale to advisory status does not remove it from COAreview; it leaves the reviewer applying a mandatory code criterion with noadopted guidance. That is the worst of both worlds, and the drafting should bedesigned 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 theNCOD the overlay’s provisions supersede Article 5, and may be displaced onlywhere doing so helps development “better meet the purpose of the NCOD.” Ifthe Commission wishes to change that allocation, the place is the ordinance, nota standards document.• The code knows how to subordinate the NCOD, and did so once. BMC §38.520.080.B.2 gives a base-zoning provision precedence over the overlay inexactly one instance: structured parking in the R-D and B-2M districts. That thedrafters wrote one narrow, express exception is strong evidence that they didnot 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 mostspecific requirements, or those imposing the higher standards, govern.” That isa conflict rule, not a balancing test.None of this forecloses any policy outcome. It identifies which decisions require anordinance and which can be made in a standards document, and that distinction shouldbe settled before drafting rather than discovered after. 4. The Cost of Ambiguity Has Been Paid for a Decade, and Not by Everyone EquallyThe reason to settle this in the rewrite is that the current document’s perceivedambiguity has already produced a decade of inconsistent readings, in public, by theCity 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 areason to state plainly, in the rewrite, what the document already means. And it bearsemphasis that no court, and no legal opinion, has ever held the NCOD guidelines unenforceable. The “not compulsory” position is an interpretation advanced by Citystaff. It has never been tested and adopted by any tribunal, and the code’s ownlanguage, 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 jumpthrough numerous hoops,” whereas for a large project, “that’s just optional.” A deputymayor had found the year before that a large project was held to “a lower designburden of proof than smaller residential projects.” The public has said the same acrossmany hearings: a homeowner replacing windows on a 1905 house is held to thedocument 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. In2013, an applicant proposed to demolish a house at 815 South 7th Avenue and buildtwo 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, andbegan 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 newstructure should not exceed two stories in height”; acknowledged where the narrow lotmade 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 besideits neighbor.That building was twenty-five feet ten inches tall. The same document that made ahomeowner justify a four-foot reduction on a twenty-six-foot pair of townhomes hasmore recently been treated as advisory when applied to fifty-foot apartment buildings.Two points, in fairness. First, nothing has changed in the meantime. The provisionstaff applied in 2013 is, in substance and nearly in wording, § 38.240.020.E.2 today; theguidelines they quoted by number are the same guidelines, same numbering, in forcenow. Whatever explains the difference between the reviews, it is not a change in thelaw. Second, that 2013 review arguably applied the guidelines too strictly; a four-footcondition on a pair of townhomes is fussy, and I would not defend every judgment inthe file. But that sharpens the point rather than blunting it. The 2013 record provesthat City staff are entirely capable of taking the full document, applying it policystatement by policy statement and guideline by guideline, acknowledging where aproject cannot comply, and reaching a defensible result, rather than balancing thedocument against base zoning and declaring it non-compulsory. The capability wasnever in question. What changed is the decision to stop. And the City’s own 2015 studyconfirms the pattern was not isolated: of 219 deviation requests between 2004 and2015, 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 wasthe 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 followingis 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 preciselybecause they were constraining B-3 entitlements, describing the goal as theentitlements of B-3 “outweighing these things that are keeping us from doing itright now.” A document that keeps you from doing something binds you.• April 2015: In the resulting report, staff noted that the framework “hasworked well in the majority of the NCOD, particularly in residential areas,”identified the Building Form chapter as “the section that causes the mostconflicts because it places emphasis on responding to the existing builtenvironment,” and proposed amending “should” to “shall.” One does notpropose to strengthen a document one believes to be advisory.• May 2015: The City adopted Subchapter 4B, a carve-out relieving theguidelines’ constraint in the B-3 area only. You legislate a carve-out to escapesomething that binds. No analogous carve-out was adopted for the residentialareas.• August 2017: A City planner stated on the record to HPAB that the NCODguidelines, being more specific, typically override more general guidance in aconflict, and confirmed that the expiration date staff had recommended for theinterim 4B carve-out was never set, and the follow-up study had stalled whenthe preservation position went vacant.• August 2023: A staff memorandum to the Historic Preservation AdvisoryBoard stated that the "NCOD standards" and adopted zoning “conflict,” and thatthe guidelines “will need to be revised” before a proposed new district couldexist.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 theCity’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 donot believe anyone did. Each statement is a reasonable thing to say about a documentthat does not say clearly what it is. That is the finding. A document that a mayor candescribe 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 adocument whose meaning has come to depend on who is reading it and what they needit 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 assumedconsent. 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 UnifiedDevelopment Code update, the Commission and staff said repeatedly, and on therecord, that changes to the NCOD guidelines were not part of that process and werebeing deferred to the Landmark Program and to this Phase 2 rewrite. Staff told theBoard that the reorganized code made “no material changes” to the NCOD section. TheCommission 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 toldresidents that mass, scale, height, and the rest of the NCOD’s substance were being setaside for a later, focused effort, it was telling them where and when to show up. Peoplewho might have fought those questions during the UDC update stood down becausethey 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 toadvisory status, or omits it from the tiers into which most ordinary residential blocksfall, 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 onthe 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 thesequestions; 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 publicprocess” 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 oneprocess, combined with a quiet removal in the next, can add up to a decision that fourthousand property owners were structurally prevented from participating in.Meanwhile, two distinct positions have been advanced, and the Commission should beclear about which it is being asked to ratify, because they are not the same:• Position one: that the guidelines are not enforceable. City staff havetaken this “not compulsory” position in staff reports and from the podium. It is aclaim 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 alreadygovern building form. This is a claim about the content of the review, and itwould survive even if the Standards were made unambiguously regulatorytomorrow. Both are wrong, and the second is the more dangerous, because a Standardsdocument can be made fully binding and still be hollow if mass and scale have beenremoved from the compatibility test. And position two is live: the full draft text has notbeen released, but at a recent neighborhood meeting, the Community DevelopmentDirector stated that base zoning supersedes the design guidelines. If that is theoperating 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, operatesthrough a fixed table of district pairings and performs no comparison to what actuallystands 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 staffaccordingly. Not a new rule. A clarification, once and for all, of the rulealready there. 6. Keep the Drafting Devices That Work, and Watch the TiersThere is a tendency in this process to treat the 2006 document as something to bereplaced wholesale. Some of its content should indeed be updated and expanded. Butits architecture is not a problem to be solved; it is an asset to be kept. It contains threedevices that are good practice, that the profession recommends, and that the newStandards should carry forward and sharpen rather than discard. First, the policy statement as a mandatory residual standard. Part II.F gives eachsection a policy statement with operative force: where “the detailed design guidelinesdo 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 thereis no gap: when an unanticipated project appears, and one always does, the reviewer isnot left with nothing. Eleven sections and four tiers are a finer mesh, and a finer meshhas 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 “complianceis required”; “inappropriate” means the approach “will not be allowed”; “consider” and “preferred” are the advisory terms. Two advisory terms, three binding ones, alldefined. This is exactly what Section 2.3 is trying to do, and the 2006 drafters got therefirst. The new document should have an unmistakable, improved version, and shouldfix the one real flaw by using “must” and “should” the way the code uses them andmarking 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 thresholdat impracticability rather than preference, and makes the policy statement anirreducible 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 classifyproperties by designation status, which is a test of historic significance. Compatibilityof mass and scale is a question about the neighbors, and whether the house next dooris 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 thereis 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 alreadycommits to the right principle, that “buildings should respond to the surroundingcontext through scale, rhythm, and site design”; the Standards should carry thatthrough 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 Rehabilitationinside the new-construction section, and it should be commended for it. The coderequires it (§ 38.240.020.E.1: all COA work “must be in conformance with” theStandards); the Standards do reach new construction (Standard 9 addresses “relatednew construction” and its substance is compatibility of “massing, size, scale”); andincorporation of these Standards is what makes a design-review ordinance legallydefensible, the difference between Anderson v. City of Issaquah (struck down forvagueness where reviewers had only “their own individual, subjective ‘feelings’”) and Swoboda v. Town of La Conner (upheld because it incorporated the Secretary’sStandards). They are the City’s safe harbor and the basis of its Certified LocalGovernment 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 comparativelylittle 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: ratherthan remove contextual review because the existing guidance is sparse, the Standardsshould give reviewers and applicants more to work with, with provisions writtenspecifically for larger buildings. Useful additions include upper-story stepbackstandards at the street and at the rear; facade-length and module limits keyed to theprevailing rhythm of the block; height-transition requirements where a larger buildingmeets a smaller one; and clear expectations for how a large building breaks down itsperceived mass. These are the standards a growing Bozeman actually needs, and theyserve applicants as much as neighbors, because a developer can design to a stepbackline 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 andon landmark or contributing properties, where the Secretary’s Standards and thedistrict’s integrity call for them. They make far less sense applied to ordinary, non-designated single-household and small residential properties, where they can becomea costly and intrusive second-guessing of routine choices without a correspondingpublic 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 thecommercial areas and where a historic designation warrants it, and keep it light onordinary residences, reserving the overlay’s real regulatory weight for the things thataffect 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 aboutthe 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 CompletedThis is the fairness concern I would most like the Commission to sit with, because it isnot about growth or politics. It is about whether the new system rests on a foundationthe 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 sincethe 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, completinginventory forms, continuing assessment updates, and mapping the candidates. The2019 review recommended a windshield survey and identifying areas for a formalarchitectural 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 noone 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 canits owner, nor the neighbor across the street, about to learn what the classificationpermits. And it cuts both ways: an owner placed in a higher tier may fairly demand toknow 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 preliminarywork, and paid two consultant teams to say the same thing, that the assessment ispreliminary 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 regulatoryclassification built on an assessment that the City’s own consultants called unfinished.Bozeman’s Certified Local Government status also carries survey obligations, and CLGparticipation is a route to federal Historic Preservation Fund pass-through money forexactly this work. If cost is the obstacle, the Commission should be told what theobstacle is and what it would take to remove it. 8. Who Has Already Paid, and Who Cannot Be Made WholeEverything above concerns what the Standards will do going forward. This sectionconcerns something the Commission cannot fix going forward, and should weighbefore 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; the2015 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 floorarea. Owners who never applied at all, the largest and most invisible class, were toldwhat 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 tocomply beside one who is relieved of the obligation, and the City has not merelyapplied 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 Cityapplies the standards too strictly, an owner loses money, time, or floor area. Realinjuries, and I do not minimize them. But they are recoverable. The owner canreapply, redesign, appeal, or wait for a better market. The land is still there. An ownerwho 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 thatdefined it is gone. This asymmetry is why the code contains a two-year demolition stayafter a denial, why preservation law exists at all, and why residents have asked for aninterim zoning ordinance: a rule clarified after the buildings go up clarifies nothing forthe people who live beside them. When a city is genuinely uncertain whether astandard applies, the cost of guessing wrong in one direction is not the same as the costof guessing wrong in the other. The commons. The character of a Bozeman block is owned by no one and produced byeveryone on it, over decades, at their own expense, each constrained by a rule theymostly followed. The guidelines are the mechanism that keeps any one owner fromcashing that shared asset out. When the rule is enforced against forty owners andwaived 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, atransfer. The Commission may decide, with the community’s support, that Bozemanneeds the housing more than the block face; that is a legitimate judgment other citieshave reached, and it belongs to the Commission and the public. What cannot happen isthat the rule stays on the books, is enforced against those who ask permission, and iswaived for those who do not. The reliance interest. When people bought homes in the NCOD, they bought subjectto a rule: not “no change,” but that new construction would “enhance and contribute tothe aesthetic character and function of the property and the surroundingneighborhood.” The Commission has now increased base-zoning density across muchof that area, through a public process I am not challenging. But consider thecombination. 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. Theupzoning went through notice, hearing, and a recorded vote. The removal ofcompatibility review would arrive through a drafting convention in Section 2.3. Thatcuts against the public’s right to participate in decisions that affect them, because thedecision 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 wasincorporated in 1883; the NCOD was adopted in 1991. The overlay has governed thehistoric 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 measureor a passing enthusiasm; it is one of the longest-standing land-use commitments theCity has made, reaffirmed by successive Commissions, with four thousand ownersarranged around it. A commitment of that age and reach should not be narrowed on athin margin or a drafting convention. If contextual compatibility review is to bereduced, that change should command broad and demonstrated public support andsurvive being stated plainly to the people it affects. A change that can pass only if it isnot clearly explained has not earned its majority. This is not an argument that theNCOD is sacred. It is an argument about proportion: the Commission raised basedensity 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 scaleruns: Bozeman has an affordability crisis; more supply is the answer; design standardsconstrain supply; therefore, the standards must yield. Bozeman has already run this experiment. In 2015, it adopted Subchapter 4B specifically to relieve the guidelines inthe B-3 downtown district, expressly to accommodate “greater height and density.”The density arrived. And Bozeman’s affordability did not improve; it collapsed. TheCity’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. Onthe measures that matter, Bozeman is close to the least affordable place in the leastaffordable state in the country.I will be fair about what that does and does not prove. It does not prove that addedsupply is useless; price pressure is largely regional and exogenous, prices might behigher still without the new units, and the recent moderation in rents does trackthousands 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 Commissionshould 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 hasa ten-year natural experiment in its own permit records, and it has never beenanalyzed. Mass and scale can be governed in three ways, and any is legitimate. Section 2made the design point that shaping a building’s mass does not limit the number ofhomes it holds. This section makes the institutional one: wherever the Commissiondecides that shaping should happen, it must actually happen somewhere. Mass andscale can be governed in the base code as numbers (objective, predictable, hard toapply unevenly, and if certainty for applicants is the goal, the option that delivers itmost completely); in the overlay as a contextual compatibility standard (lesspredictable, more responsive to place); or in both, as a hybrid, which is the mostcommon 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 thecorresponding 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 performcontextual compatibility. Moving mass and scale there means creating finer-grainedresidential districts, contextual height and stepback standards, block-face-derivedlimits of the kind Raleigh uses, or a form-based overlay. It cannot mean deletingcompatibility review from the Standards and pointing at a height maximum thatapplies 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 theUDC update adopted in December 2025, the Commission rezoned two near-downtownareas at their residents’ request: the pocket of the Bon Ton Historic District and theblocks near Centennial Park, both previously high-density R-4 zoning surrounded bylower-density districts, and both inside the NCOD. Residents had petitioned for theleast-dense residential district, R-A, and the Commission adopted it. Their statedreasons were precisely the reasons base zoning would have to serve if it is to carrycompatibility: to reflect the existing historic character of the neighborhood, to limithigh-density redevelopment out of scale with what is there, and to better align thezoning with what is physically already on the ground. As the Inter-NeighborhoodCouncil chair put it, the question is “what is there? What’s on the ground? How does itfunction?” Those rezonings are a model of using base zoning to protect neighborhoodcharacter, and they point directly to what the base-code option requires everywhereelse. That requirement is the survey. Bon Ton and Centennial Park could make their casebecause their residents did the work themselves, block by block, to document whatwas 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 carrycompatibility 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 toprove the point. A base-zoning approach that skips the survey and simply relaxes theoverlay is not the Bon Ton and Centennial Park model. It is the opposite: it removes theprotection 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 localartifact 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 wroteit: Winter & Company, whose principal authored model guidelines used at the statelevel and chaired the National Alliance of Preservation Commissions. The compliancevocabulary, the policy-statement architecture, and the impracticability exemption areprofessional 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 thatstandards be legislatively adopted, states that “no courts would tolerate a reviewsystem that involved complete discretion by individuals,” and lists as a governingprinciple that “applicants are treated fairly and consistently.” Its predecessor reportput it sharply: “the failure of an agency to establish in advance coherent writtenstandards and regulations to be applied in all cases amounts to a denial of dueprocess.” Read that next to Section 2.3: the concern is not that a city might regulate toostrictly, but too unpredictably. And the City’s own consultant, BendonAdams, calledthe overlay “a gutsy solution” that “made Bozeman a pioneer in preservation ofneighborhood character, scale, and context.” Those are the two words the rewrite isat risk of demoting.Some cities have concluded that contextual size review impedes housing and haveremoved it. Cambridge, Massachusetts, amended its ordinance in 2023, expressly toencourage housing, so that its conservation-district commissions may not consider astructure’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 inthe way, and removed it. By ordinance. In public. On a recorded vote. That option isavailable to this Commission at any time. What it did not do was let the change arriveby drafting convention. 11. What I Ask of the Commission and the BoardFourteen requests. None asks the Commission to prejudge a policy outcome, andseveral belong first to the Historic Preservation Advisory Board, which holds primarypurview 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 publiccomments on the actual decision rather than eleven sections of prose in which itis 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 partmoves to the base code, identify the districts and standards that will carry it andadopt them on the same timeline. A citywide height maximum is not acompatibility standard.5. Preserve the three drafting devices: a mandatory residual policystatement, a defined compliance vocabulary, and a structured impracticabilityexemption with the burden on the applicant. Improve them; do not replacethem with unwritten discretion.6. Add standards written specifically for larger buildings, which is wherethe current document is thinnest: upper-story stepbacks, facade-length andmodule limits keyed to the block, and height transitions where a larger buildingmeets a smaller one. The answer to sparse guidance on big buildings is moreguidance, 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 todraw that line deliberately, and reserve the overlay’s regulatory weight for whataffects the neighbors: mass, scale, height, and how a building meets the street.8. Keep “context” as a defined term meaning the adjacent and same-blockproperties, and rename the “Context Tier.”9. Adopt the Standards by ordinance, with the ordinance stating expresslywhich 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 codeamendments on the record; if not, draft the Standards to be consistent withthem.11. Do not adopt a tier map whose assignments depend on survey work not yet done. Fund, schedule, and report on the formal architectural surveythat the 2015 and 2019 consultants recommended, and provide areclassification process as findings come in.12. Revisit the 2015 fine-grained-infill recommendations (ground-floorADUs, by-right small-lot development, reduced lot widths and minimums,increased coverage, reduced parking). Every recommendation adds homeswithout 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 andwithout impugning anyone’s good faith. But the regulatory-versus-advisoryquestion is one on which City staff have already taken a firm public position,that the guidelines are “not compulsory.” Staff should be heard; they administerthe document and know its failures better than anyone. But a party that hasannounced its preferred answer should not also frame the question, draft theoptions, and decide what reaches the Commission. And the consultant works forthe City and its residents, not for the department that administers the contract.The Commission and Board should make clear, on the record and to theconsultant team, that staff’s position on the regulatory status of the guidelines isan interpretation, not settled City policy, that interpretations andpreferences should be identified as such rather than presented as establishedrequirements of the code, and that the Board should see the Section 2.3assignment before it is embedded in a draft, not after. 12. ClosingI have tried to concede everything that can honestly be conceded. The currentguidelines would benefit from clarification and from more to say about largerbuildings, and the update is a worthwhile project. Reasonable people, includingmembers of this Commission, believe mass and scale belong in the base code asnumbers rather than in an overlay as a compatibility judgment, and they haverespectable 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 ofa consultant’s document, that neither the Commission nor the public ever quite votedon, and that people learn about for the first time when it is applied to a building ontheir block.Section 2.3 is a question. The Commission should answer it, out loud, and measure theanswer 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; CommissionResolution 3885 (2006). Bozeman Municipal Code (as re-adopted by Ordinance 2151). §§ 1.01.030.A.8 andA.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.B; 38.520.080.B.2. City record. Staff report and Commission action on the 815 South 7th AvenueCertificate of Appropriateness with Deviation (2013); “B-3 / Design Guidelinesconflict” staff report (April 2015) and Commission direction; HPAB minutes (August2017) on Subchapter 4B; Community Development Department memorandum toHPAB (August 2023); NCOD Design Standards Community Engagement Plan (2026). Prior City-commissioned studies. City of Bozeman NCOD Report (2015): deviationdata (Tables 2 and 3), potential-future-districts map (Figure 12), andrecommendations on districts and inventory; BendonAdams / Orion Planning andDesign NCOD Review (2019): survey and character-area recommendations; City ofBozeman 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 andDesign 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).