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HomeMy WebLinkAbout07-28-26 Public Comment - S. Boyd - July 28, 2026 Work Session (Policy Discussion)_ Landmark Program and Neighborhood Conservation Overlay District (NCOD) Design From: Scott and Frances Boyd To: Frances Boyd Subject: [EXTERNAL]July 28,2026 Work Session(Policy Discussion): Landmark Program and Neighborhood Conservation Overlay District(NCOD)Design Standards Project Updates and Discussion Date: Tuesday,July 28,2026 11:51:05 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. (Submitted to comments@bozeman.net. All others bcc'd.) July 28, 2026 To: Bozeman City Commission Cc: Historic Preservation Advisory Board Dear Mayor and Commissioners: This comment responds to the July 20, 2026, staff memorandum from Deputy Director Rebecca Harbage and Director Erin George concerning the Landmark Program and the NCOD Design Standards update, and it is offered to inform the Commission's direction on scope, timing, and next steps. I support the memorandum's stated aims of correcting out-of-date information, improving clarity, and reflecting the 2017 revision of the Secretary of the Interior's (SOI) Standards in the Design Guidelines. My concern is narrower and more specific. The memorandum's framing of the Guidelines, the role consultants have been asked to play, and the drift in the project's scope each tend to decide contested questions that belong to the Commission's legislative judgment and, at present, to a pending district court action. I ask the Commission to keep those questions open and to sequence this work accordingly. 1. The memorandum mischaracterizes the purpose of the Guidelines. The memorandum states that the Guidelines were "adopted in 2006 to help staff and applicants understand and apply the US Secretary of the Interior (SOI) Standards for Treatment of Historic Properties." The Guidelines indeed incorporate SOI principles. Section II.E states that they "incorporate principles set out in The Secretary of the Interior's Standards ... while expanding on those basic preservation principles as they apply in Bozeman," and Appendix A reprints the ten Standards in full. Updating the document to reflect the 2017 revision of those Standards is a legitimate objective that I support. The difficulty is that the memorandum presents one component of the document as though it were the document's whole purpose. The Guidelines state their own primary goal in local terms: "A primary design goal for Bozeman is to preserve the integrity of its individual historic structures and the character of its streetscapes in the Neighborhood Conservation Overlay District. To maintain the character of a historic building, design elements such as form, mass, and materials should be considered in any alteration. The relationship each building has with other neighborhood design elements is also important, as well as the hierarchy of site elements, such as street trees, front yards, walkways, and accessory structures." That goal was developed through a local public process of values clarification described in Section II.A, and the document's own text says it expands on the SOI principles rather than merely restating them. That goal is not merely a founding aspiration. The two reviews of the NCOD that the City itself commissioned, in 2015 and in 2019, each reaffirmed it. The 2015 review described the guidelines' intent as to encourage compatibility, found that the framework had worked well in the residential areas, and recommended adding detail on context, density, and heights, not removing it. The 2019 review restated the district's dual purpose: to preserve historic buildings that reflect Bozeman's significant history and to enhance neighborhood character and context, and it called specifically for updated standards to address mass and scale, not to eliminate that review. The primary goal, and the place of mass and scale within it, has been affirmed through the collaborative process that produced the document and through two subsequent City- commissioned studies. This distinction matters because the document's locally derived content, its provisions on mass, scale, height, form, streetscape, and compatibility for new construction, is not SOI interpretation at all. The SOI Standards, by their own terms, address the treatment of existing historic buildings, and how far they extend to new construction is itself contested and among the questions now in litigation. Either way, if the Guidelines existed only to help the public apply those Standards, the document would be largely silent on new construction. It is not. Its locally derived compatibility provisions are precisely what govern new construction, and those provisions are the ones at issue in the current dispute. Characterizing the document as an SOI interpretation aid understates exactly the content that is contested. I ask that the background description be corrected to reflect the document's stated purpose and its local content. 2. Consultants should not be asked to state contested legal interpretations as settled. The memorandum, the Phase I materials, presentations by The Lakota Group to the public, and the draft Design Standards each present as settled background two propositions that are the subject of active litigation. The first is that the NCOD "is not its own zoning district" and "does not replace underlying zoning requirements." The second is that the design guidelines must be considered, but "are not compulsory." These are not neutral summaries. At the May 13, 2025, work session, the Phase I consultant, Community Planning Collaborative, told the Commission that the overlay "is not dictating any other zoning standards," that this "is the function of the zoning district itself," and, adopting an analogy she credited to the Director, that zoning is "the cake" and the overlay merely "the icing" that "does not replace everything else that's in the zoning code." The same framing runs through the presentation, whose "Zoning versus Design Guidelines" slides assign height, mass, and density to base zoning and confine the guidelines to "look and appearance." That taxonomy is not a design observation. It is the City's contested legal position on where mass and scale are regulated, delivered to the Commission by a consultant as though it were a settled background. These are not settled matters. They are two of several interpretive questions now before the district court in the action arising out of the Guthrie approval. The City's own record does not speak with one voice on them. In 2015, for example, the City adopted a district-specific carve-out to the Guidelines, Subchapter 4B, addressing how they applied to height and form in the B-3 district. I do not ask the Commission to resolve any of this here. It is now for the court, and ultimately for the Commission through the legislative process, to decide, and I will not develop it further in this comment. I note it only for the narrow point it establishes: these questions are contested within the City's own record, not established, and should not be presented as though they were. When public-facing documents, whether authored by staff or by a consultant, restate the City's litigating position as established fact, they do more than summarize. They build a parallel record on the disputed points, outside the litigation and outside the legislative process, where those points belong. I ask the Commission to direct that project materials describe the regulatory status and overlay-priority questions as open and under review, not as settled. 3. The two projects should be sequenced around the pending litigation. I do not ask the Commission to abandon this work. I ask that it be ordered sensibly. A wholesale rewrite of the very document whose legal effect is being adjudicated carries two avoidable risks. First, if the court's ruling bears on whether and how the Guidelines bind, work completed now on the contested provisions may have to be redone. Second, rewriting the contested text while the case is pending invites the appearance that the City is attempting to alter the regulatory language in order to affect the outcome. The prudent course is to separate the non-contested from the contested. The non- contested updates, correcting out-of-date information, improving clarity, reflecting the 2017 SOI revision, and refreshing the glossary and appendices, can proceed now. The provisions that go to regulatory status, to the relationship between the overlay and base zoning, and to the treatment of mass, scale, and height should await the resolution of the litigation. Those questions are before the court, and the City should let the court answer them before it rewrites the text that raises them. 4. Scope has drifted from amendment to wholesale replacement, and the drift decides substance by drafting choice. The adopted Phase I Report directed the City to "make amendments to the existing Bozeman Guidelines for Historic Preservation and the Neighborhood Conservation Overlay District." The May 13, 2025, presentation to the Commission used the same word, amendments. The July 2026 memorandum now describes "a comprehensive update," a new consultant, and a new instrument retitled from Design Guidelines to Design Standards, with a full replacement structure of chapters and appendices. At the Historic Preservation Advisory Board's July 15, 2026, meeting, staff went further still, describing this effort as having always been framed as an overhaul. That characterization cannot be reconciled with the adopted Phase I direction to make amendments, or with the presentation this Commission received on May 13, 2025, which used the same word. What was authorized as an amendment has become, in the telling, something it was never approved to be. Two of the Phase I bullets are the mechanism by which a rewrite can decide contested substance without ever debating it. "Determine elements which should be adopted in Code versus Guidelines" can be used to relocate, or quietly drop, the binding mass, scale, and height content. "Consider compatibility and/or conflicts with current zoning allowances" can be used to subordinate the overlay to base zoning. Residents were told, when the Unified Development Code update deferred NCOD changes to this process, that this is where the mass, scale, and height question would be taken up. A wholesale replacement that relocates or removes that content turns a deferral into a decision reached without the debate that was promised. To be clear, I do not object to the label "Standards." Done transparently, a shift to standards could clarify which provisions bind, an outcome I would welcome, and one the 2019 review contemplated when it recommended that standards be requirements and guidelines be recommendations. The objection is not to the word. It is to scope creep and reframing that resolve contested questions through drafting choices rather than through the express public decision those questions require. 5. Engagement of consultants going forward. The memorandum reports that the City terminated its contract with The Lakota Group for unprofessional conduct. I take no position on the particulars of that dispute, and I do not suggest it explains the termination. I raise a structural point that bears on the next engagement. A consultant retained for design expertise, then asked to endorse a contested legal conclusion that lies outside that expertise and is currently before a court, is placed in an untenable professional position. The effect is not to set the consultant against the staff. It aligns the consultant with staff and places them both in an adversarial posture toward those in the public and the Historic Preservation Advisory Board who may not share that interpretation and who, in the residents' case, are contesting it in court. A process that should be collaborative and community- facing then becomes one in which the City's own hired expert is enlisted to advance staff's litigating position against the very residents and advisory board the process exists to serve. That is a corrosive footing for any engagement, and it is avoidable. The next engagement will proceed more smoothly if design consultants are kept within the design domain and disputed legal questions are reserved for the courts and the Commission's own legislative judgment. 6. Amend the known document and engage its author or a comparably qualified firm in that tradition. The existing Guidelines are a known, long-applied instrument. Since 2006, they have served as the shared reference for staff, applicants, neighbors, the boards, and the Commission, and the Certificate of Appropriateness decisions of the years since have built a substantial interpretive record around them. The community's investment in them is real, but its value is not a sunk cost to be defended for its own sake. That value is realized going forward, in what the document now provides: a common vocabulary and a body of settled understanding that make each next decision faster, more predictable, and less open to dispute. A wholesale replacement forfeits that asset and restarts the clock. It obliges staff, applicants, and the community to relearn a new document and to rebuild that shared understanding from nothing, at real cost, and, with the meaning of the current text now in litigation, at real risk. The City has just been through precisely this kind of undertaking at the code level. The comprehensive rewrite of the Unified Development Code was a multi-year, resource-intensive effort whose disruptions are still being absorbed. There is little to be gained from repeating that same exercise on the Guidelines. The regulatory architecture has already been reworked. What the Guidelines need is not a second ground-up rewrite but a targeted amendment: correct what is out of date, add what is missing, sharpen what is vague, and leave intact what has worked. The prudent course is to start from the known quantity and improve it, which is also what the adopted Phase I direction called for. The document was prepared by Winter & Company of Boulder, Colorado, under Nore V. Winter, one of the country's most recognized authorities on design review and context-sensitive design standards. Over four decades, the firm prepared design guidelines and compatibility standards for more than one hundred communities nationwide, among them Denver's citywide historic preservation guidelines and citywide form-based code, a statewide model for the State of Georgia, the Fort Collins Old Town standards and residential character work, and programs in Salt Lake City, Raleigh, San Antonio, and Pittsburgh. Their work in San Marcos was just completed in June 2026 and gives a contemporary example of their work in updating Design Guidelines and in transitions between residential and more intensive use zoning. Mr. Winter, a former chair of the National Alliance of Preservation Commissions, contributed to compatible residential infill provisions in the Los Angeles zoning code, and he has since been honored with that organization's Lifetime Achievement Award and with the American Institute of Architects' award for Contribution to the Built Environment. Most to the point, the firm produced a study titled "Building Mass and Scale in Historic Districts," which means the precise question now in dispute in Bozeman is one the guidelines' own author has studied and written on directly. None of this makes the document a national template dropped onto Bozeman. Its goals and priorities are the community's own, arrived at through the local process described above, which is why they read in local terms rather than as boilerplate. What is national is the authorship and the method: a leading practitioner helped Bozeman set down its own goals in a framework proven in scores of communities. Bozeman's Guidelines are local in their content and, in their craftsmanship, the work of a practitioner that the field has since recognized with its highest honors. Both are reasons to amend the document with care rather than discard it. I ask that we build on the known document rather than commission a wholesale replacement from a team with no connection to it. The City should seek out that authorship and lineage directly, through Mr. Winter or through a firm working in his tradition, and amend what already exists. Proceeding that way, rather than discarding the document, preserves continuity, honors the original public process, and avoids the disruption and the litigation exposure of starting over. Amendment is also the more efficient course, and that matters. Correcting, adding to, and clarifying a known document is significantly cheaper, quicker, and simpler than drafting a new instrument from the ground up, and it builds on work the City has already funded rather than paying a second time to cover the same ground. The memorandum notes that both projects are carried in the budget. The Commission's fiduciary duty to steward those public funds is best met by undertaking this work as efficiently as the task allows, and here the prudent path and the economical path are one and the same. I recommend that the Commission direct the update to proceed as an amendment on that basis. Requested direction. I respectfully ask the Commission to give the following direction at the work session: 1. Correct the background characterization of the Guidelines so that it reflects the document's stated primary goal and its locally derived compatibility content, rather than presenting the document as an aid to applying the SOI Standards alone. 2. Direct that project materials, whether authored by staff or by consultants, describe the regulatory-status and overlay-priority questions as open and under review, not as settled, while those questions remain in litigation. 3. Sequence the work so that non-contested updates proceed now and the contested provisions await the resolution of the litigation. 4. Reaffirm the adopted Phase I direction to amend the Guidelines rather than replace them wholesale, which is also the faster, simpler, and more economical course and the better stewardship of the funds already budgeted, and treat any relocation or removal of mass, scale, or height content as a substantive decision requiring express public debate. 5. Direct that the amendment build on the existing document and be led, where available, by its original author, Nore Winter, or by a comparably qualified firm working in the same tradition. 6. Confine the design consultant's scope to design content and reserve the disputed legal-interpretation questions for the courts and the Commission's legislative process. Thank you for your consideration. Respectfully submitted, Scott Boyd Bozeman