HomeMy WebLinkAbout10-04-26 Public Comment - S. Bieluch - Public Comment Regarding Application 23245 - 811 W. Mendenhall Street Request for Denial of ExtensionFrom:Scott Bieluch
To:Bozeman Public Comment; cityclerksdepartment@bozemanmt.gov; Planning Technician; Kelley Rischke; JenniferMadgic; Joey Morrison; Emma Bode; Douglas Fischer; Alison Sweeney
Subject:[EXTERNAL]Public Comment Regarding Application 23245 – 811 W. Mendenhall Street Request for Denial of
Extension or, at Minimum, Complete Current-Conditions Review
Date:Sunday, October 4, 2026 5:48:51 PM
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Public Comment Regarding Application 23245 – 811 W. Mendenhall StreetRequest for Denial of Extension or, at Minimum, Complete Current-Conditions Review
Dear City of Bozeman Community Development Staff and Decision-Makers:
I am an adjoining property owner and have previously submitted public comments concerningApplication 23245 at 811 W. Mendenhall Street. I am submitting this comment specifically
regarding the pending request to extend the previously approved site plan.
I respectfully request that the City deny the requested extension unless the applicant candemonstrate, with current evidence and written findings, that every applicablerequirement for an extension has been satisfied and that the impacts, mitigationmeasures, site conditions, infrastructure, access arrangements, and other circumstancessupporting the original approval remain adequate today.
I am not asking the City to deny this application simply because I oppose the development. Iam asking the City to apply its adopted standards consistently and require the applicant to
demonstrate that the extension remains appropriate under the City's current extension criteriaand applicable law.
1. The extension is a current administrative decision, not merely a
continuation of the 2024 public-comment period
I understand the City's position that the original public-comment period for Application 23245
closed on May 30, 2024, and that the original site-plan approval was issued in September2025.
My comments here are directed at the current extension application, not an attempt toreopen the original 2024 public-comment period.
The City itself currently identifies “Extension to Approved Plan (EXT)” as a separateplanning application type, and its current Extension to Approved Plan checklist requires
information specifically directed to present-day circumstances.
The City's current extension checklist requires the applicant to address, among other things:
changes to development regulations since the original approval and whether thedevelopment as originally approved complies with the new regulations;
progress in completing the development;phasing and the ability of the development to operate without being complete;
dependence of other development on public infrastructure or private improvements to beinstalled by the development;
the developer's ability to complete the development when an extension exceeds oneyear;
the overall maintenance and current condition of the site; andwhether mitigation for impacts identified during preliminary plan review remainsrelevant, adequate, and applicable to the present circumstances of the developmentand community.
Those are not merely historical questions. They necessarily require an examination ofconditions as they exist when the extension is being considered.
Accordingly, I ask the City to make written findings addressing each of those criteria ratherthan treating the extension as an automatic continuation of the 2025 approval.
2. The present condition of the property is materially different from the
circumstances under which the project was originally reviewed
The property has remained substantially undeveloped while the surrounding Midtown area has
continued to change.
At the site today, I have observed continuing deterioration and maintenance problems,
including:
recurring graffiti, including graffiti that has reappeared after the property was repainted;
a large metal light pole that was struck by a vehicle and has remained on the propertyfor an extended period of over 6 months;
an unsecured building and repeated apparent unauthorized access;a building door that has at times remained standing wide open for extended periods;
individuals who appear to be transients and drug-using criminals entering and leavingthe building; and
the general deterioration and lack of maintenance associated with a vacant orincompletely secured property.
I have separately brought these conditions to the City's attention through Code Compliance.
I am not asking the City to assume that every person observed entering the property has
committed a crime. I am asking the City to consider the actual present condition andmaintenance of the site, as its own extension checklist requires.
The current condition of the property is directly relevant to the City's required determinationconcerning “overall maintenance and current condition of the site” and whether the original
mitigation remains adequate and applicable to current circumstances.
Before granting an extension, I therefore request that the City obtain and consider a current
site inspection and determine:
1. the current physical condition of the property;
2. whether the property is adequately secured;3. whether outstanding code-compliance matters exist;
4. whether any original site-maintenance or security commitments remain outstanding;
5. whether the condition of the site has changed materially since the original review; and6. whether those changed conditions affect the appropriateness of extending the approval.
3. The City should determine whether all original mitigation remains
relevant, adequate, and applicable
This is perhaps the most important issue in the extension review.
The City's current extension checklist expressly requires consideration of whether mitigationidentified during preliminary plan review remains “relevant, adequate, and applicable tothe present circumstances of the development and community.”
The circumstances surrounding this project have changed since the original review.
The surrounding Midtown area has experienced substantial additional development andincreased activity. Traffic, pedestrian activity, parking demand, infrastructure demands, and
development intensity have changed.
The City should therefore not simply carry forward mitigation measures that were deemed
adequate under the circumstances existing several years ago without determining whether theyremain adequate today.
I respectfully request written findings addressing:
every mitigation measure imposed or relied upon during the original review;
whether each measure has been completed, remains outstanding, or is intended to becarried forward;
the evidence supporting the City's conclusion that each measure remains adequate;whether surrounding development has changed the assumptions underlying any
mitigation;whether traffic conditions have materially changed;
whether pedestrian conditions have materially changed;whether infrastructure conditions have materially changed; and
whether any mitigation should be strengthened, modified, or required before anextension is granted.
4. Current traffic conditions should be evaluated rather than relying
automatically on old transportation assumptions
The original traffic analysis was prepared under substantially different circumstances than
those existing today.
One of my continuing concerns is the project's traffic distribution. The transportation analysis
associated with the project contemplated approximately 90% of project traffic using W.Mendenhall Street, while the proposed access arrangement has subsequently involved a
substantially different distribution, including the proposed 50/50 distribution involvingLamme Street.
The City should reconcile these two things.
I respectfully request that Engineering determine and document:
what traffic distribution was actually analyzed in the original TIS;
what traffic distribution the approved plan currently requires;what traffic distribution the extension application assumes;
whether surrounding development has changed the traffic assumptions;whether current traffic counts or other current data are necessary;
whether pedestrian and bicycle conditions have changed;whether current street capacity and intersection conditions remain consistent with the
original analysis; andwhether the original traffic mitigation remains adequate under current conditions.
If the City concludes that no updated transportation analysis is necessary, I respectfullyrequest that it identify the technical basis for that conclusion.
The question is not whether traffic existed when the project was originally reviewed. Thequestion is whether the information and mitigation underlying the approval remain adequate
for an extension now.
5. The alley requires particular scrutiny
The unpaved alley west of N. 8th Avenue presents another issue that should be addressedusing current conditions.
The City should determine whether the alley, as it exists today, can safely and adequatelyaccommodate the demands associated with the proposed development.
That analysis should address, at minimum:
emergency-vehicle access;alley width and physical condition;vehicle maneuvering;pedestrian movement;sight distance;service and trash vehicles;utility access;snow removal and winter conditions;construction traffic;access to neighboring properties; andany required alley improvements or maintenance responsibilities.
If improvements to the alley or other infrastructure were part of the original project'smitigation or approval, the City should identify them and determine whether they have beencompleted, secured, or remain outstanding.
6. The vision-triangle departure should be evaluated using current safety
conditions
The project previously received relief concerning the required street vision triangle at W.Mendenhall Street and N. 8th Avenue.
Before extending the approval, I ask the City to identify in writing:
the applicable vision-triangle standard;the dimensions required by the applicable code;the dimensions actually proposed;the precise amount of the requested reduction;the specific legal mechanism authorizing the reduction;the criteria that must be satisfied before such relief can be granted;the evidence supporting the original finding;whether current traffic and pedestrian conditions were considered; andwhether the original safety analysis remains applicable today.
The City should not assume that a sight-distance reduction approved under earlier traffic anddevelopment conditions remains appropriate indefinitely.
If the current conditions do not support the original safety determination, the City shouldrequire the applicant to address those conditions before granting an extension.
7. All departures, variances, deviations, waivers, and exceptions should be
identified
I continue to request a complete accounting of every departure from otherwise applicabledevelopment standards associated with Application 23245.
For each departure, variance, deviation, waiver, exception, or similar relief, please identify:
1. the exact applicable BMC/UDC provision;2. the standard that would otherwise apply;3. the amount or percentage of the departure;4. the legal mechanism by which the relief was granted;5. the criteria required for that relief;6. the evidence supporting the original finding;7. whether the relief remains valid and applicable to the extension;8. whether current conditions have changed any of the facts supporting the relief; and9. whether the City must make any new finding before extending the approval.
This is particularly important for the vision triangle, alley/setback issues, access arrangements,and any other departure affecting neighboring properties, public safety, transportation, orinfrastructure.
8. Current infrastructure capacity and dependencies should be evaluated
The current extension checklist specifically asks the applicant to describe any dependence byother development on public infrastructure or private improvements to be installed by the
development.
The City should therefore determine whether the project's infrastructure commitments remain
adequate and whether other development is dependent upon them.
This should include, as applicable:
streets;sidewalks;
alley improvements;water;
sanitary sewer;stormwater;
drainage;emergency access;
utilities;pedestrian infrastructure; and
any other improvements that were identified as necessary to support the approveddevelopment.
If infrastructure improvements were required as mitigation or conditions of approval, I ask thatthe City identify the status of each improvement and determine whether an extension should
be conditioned upon completion or adequate financial security for those improvements.
The City's current Planning materials recognize the importance of required site improvements
and financial guarantees where development proceeds before all improvements are complete.BMC 38.270.060 governs improvement agreements and related security.
9. Groundwater and environmental conditions should not simply be
carried forward without review
The original project review also raised concerns involving groundwater and environmental
conditions.
Because site conditions and surrounding development have continued to change, I ask the City
to determine whether the technical information relied upon during the original review remainscurrent and adequate.
If groundwater, drainage, contamination, environmental conditions, or other site-specificissues were identified in the original record, the City should determine whether:
the underlying information remains current;site conditions have changed;
additional investigation is warranted;any original mitigation remains adequate; and
the extension can reasonably rely upon the original technical record.
10. The applicant's progress and ability to complete the project should be
considered
The current extension checklist specifically requires information concerning progress towardcompletion, phasing, the ability of the development to operate without being complete, and—
in the case of an extension greater than one year—the developer's ability to complete thedevelopment.
I ask the City to require the applicant to provide specific evidence rather than conclusory
statements.
The City should identify:
what work has actually been completed;what permits have been obtained;
what construction has occurred;what phases remain;
why the original approval could not be implemented within the approved period;the requested length of the extension;
the proposed new expiration date;the anticipated construction schedule; and
evidence demonstrating the ability to complete the project within the requestedextension period.
11. The change in development regulations must be addressed
The current Extension to Approved Plan checklist specifically asks whether developmentregulations have changed since the original approval and whether the development asoriginally approved complies with the new regulations.
That question is especially important here because Bozeman adopted its revised UnifiedDevelopment Code, with Chapter 38 becoming effective February 1, 2026.
I therefore ask the City to identify:
which regulations governed the original approval;which regulations govern the extension request;whether the original approved development complies with the current regulations;which portions of the project do not comply with current regulations;what legal authority allows those portions to remain vested or otherwise continue; andwhether any requested modification or relief requires a separate current application.
If the extension is being reviewed under a vested-rights or grandfathering theory, I ask theCity to identify the factual and legal basis for that determination.
12. Montana Land Use Planning Act considerations should be addressed
I recognize that the City may determine that particular provisions of the Montana Land Use
Planning Act (MLUPA) do not apply to this particular extension because of the project'sapproval history, vesting status, or the legal classification of the extension application.
However, the City should make that determination explicitly rather than assuming that the2025 approval automatically resolves every issue presented by a 2026 extension.
Montana Code Annotated § 76-25-105 requires municipalities meeting the statutory thresholdsto comply with MLUPA, and provides that a local government complying with that chapter is
not subject to Title 76, chapters 1, 2, 3, or 8.
Montana Code Annotated § 76-25-305 currently provides a process for applications proposing
development after adoption of zoning regulations, including an initial determination
concerning substantial compliance and whether impacts were previously analyzed and madeavailable for public review and comment. Where the statutory criteria require additional
analysis, the statute provides for additional data/analysis and public comment. Final writtendecisions under that process are appealable under § 76-25-503.
I am not asserting that § 76-25-305 necessarily governs Application 23245's extension. Iam requesting that the City determine and explain whether it applies based upon the project's
approval date, completeness/vesting date, current application classification, and the nature ofthe requested extension.
If the City concludes that § 76-25-305 does not apply, please identify the legal basis for thatconclusion.
Similarly, MCA § 76-25-503 provides that certain final administrative land-use decisionsmade pursuant to MLUPA may be appealed by an applicant or aggrieved person and
establishes the administrative appeal process.
Again, I am not asking the City to assume that this statute automatically creates an appeal
right in this particular case. I am asking the City to identify the statutory and municipal-lawbasis for its conclusion concerning whether the pending extension is appealable.
13. Public participation and the City's own procedures
Article II, Section 8 of the Montana Constitution provides:
“The public has the right to expect governmental agencies to afford suchreasonable opportunity for citizen participation in the operation of the agenciesprior to the final decision as may be provided by law.”
I understand that this constitutional provision does not, by itself, necessarily create an appealright for every land-use decision.
However, it reinforces the importance of applying the participation and notice procedures thatare actually provided by statute and local ordinance.
Montana's public-participation statutes also recognize the importance of public participation inland-use regulation. MCA § 76-25-106 establishes public-participation requirements foradoption, amendment, and updating of land-use plans and regulations, including written andverbal comments, public meetings, electronic communication, and retention of publicparticipation in the administrative record.
Montana's general public-participation statute, MCA § 2-3-104, also recognizes compliancewith public-participation requirements established under Title 76, Chapter 25, as a means ofsatisfying applicable notice requirements.
The City's own Planning materials state that notice is required so citizens can participate indecision-making affecting their interests and receive information pertinent to an applicationthat otherwise would not be available to the decision-maker.
I therefore respectfully ask the City to distinguish between the closed 2024 public-commentperiod for the original application and whatever participation, notice, record, or appeal
procedures legally apply to the current 2026 extension decision.
If the City maintains that no public participation is permitted concerning this extension, I
request that the City identify the precise provision of the BMC, UDC, or Montana lawestablishing that limitation.
14. The City's current appeal materials make this issue particularly
important
The City's current Planning webpage expressly identifies:
“Appeal of Administrative Project Decision | BMC 38.250.030.”
The same page states that an administrative project decision appeal is taken by filing with
Community Development by 5:00 p.m. on the tenth working day following the final decisionof the administrative review authority.
I understand that the City has indicated that the extension decision is not appealable.
If that remains the City's position, I respectfully request that the City identify:
1. the precise provision of BMC 38.250.030 that excludes an Extension to Approved Planfrom administrative appeal;
2. the provision that makes the extension decision categorically non-appealable;3. whether the extension is considered an administrative project decision under the current
UDC;4. whether the applicant's extension is being treated as a ministerial, administrative, or
discretionary decision;5. what review authority is making the decision;
6. what findings that authority is required to make; and7. what administrative or judicial review, if any, is available after the final decision.
I am asking for the legal basis, not attempting to manufacture an appeal right that does notexist.
15. The City should make written findings rather than relying on the
original approval alone
Given the age of the original review, the change in development regulations, the changes in
surrounding development, current site deterioration, traffic concerns, infrastructure questions,and the specific current extension checklist, I respectfully request that the City make written
findings addressing each applicable extension criterion.
At minimum, the record should establish:
the exact standard governing the extension;the evidence demonstrating that the standard has been satisfied;
the current facts considered by the decision-maker;the current condition and maintenance of the property;
the status of all original conditions and mitigation;
whether original mitigation remains relevant, adequate, and applicable;whether surrounding traffic and pedestrian conditions have changed;
whether infrastructure conditions have changed;whether any departures or exceptions remain legally and factually supportable;
whether the project complies with current regulations or has a documented legal basisfor continuing under prior regulations;
whether the developer has demonstrated sufficient progress and ability to complete theproject;
whether any outstanding code-compliance or site-condition issues affect the extension;whether additional technical analysis is necessary; and
the precise legal authority for the decision and any asserted lack of appeal rights.
16. Requested action
For all of these reasons, I respectfully request that the City:
1. Deny the requested extension unless the applicant demonstrates that all applicableextension criteria are satisfied based on current evidence.
2. Require current review of the property's physical condition, maintenance, security,and outstanding code-compliance issues.
3. Require the applicant to demonstrate that all original mitigation remains relevant,adequate, and applicable to current circumstances, as expressly required by the City'scurrent extension checklist.
4. Require Engineering to determine whether the original traffic analysis and traffic-distribution assumptions remain adequate under current conditions.
5. Reevaluate the alley, emergency access, pedestrian movement, service access, winterconditions, and related infrastructure issues using current conditions.
6. Reevaluate the vision-triangle departure using current traffic, pedestrian, and sight-distance conditions and identify the exact legal authority and criteria supporting anyreduction.
7. Identify every variance, deviation, departure, waiver, exception, or other reliefassociated with the project and confirm the legal and factual basis for each one.
8. Determine whether the current development regulations affect the previouslyapproved project and identify the legal basis for any continued nonconformity or vestedrights.
9. Determine whether MCA §§ 76-25-305 and 76-25-503 apply to this extension, and ifnot, identify the legal basis for that determination.
10. Provide written findings addressing each applicable extension criterion before a finaldecision is made.
11. Preserve this comment and the City's response as part of the records associated withthe current extension review to the extent permitted by applicable law.
Conclusion
This request is not based simply on opposition to additional housing or development at thislocation.
The fundamental issue is whether an approval issued under substantially differentcircumstances should automatically be extended without a meaningful examination of thepresent condition of the property, present infrastructure and transportation conditions,current regulations, outstanding mitigation, current safety conditions, and the specificcriteria the City itself has established for an extension.
The City's current Extension to Approved Plan checklist expressly recognizes that these
present circumstances matter. It requires consideration of the current condition of the site andwhether previously identified mitigation remains relevant, adequate, and applicable to the
present circumstances of the development and community.
I therefore respectfully ask the City to apply those requirements fully and objectively.
If the applicant can demonstrate that the project still satisfies every applicable criterion, theCity should document that conclusion with specific findings and supporting evidence. If the
applicant cannot make that showing, the extension should be denied.
At a minimum, I ask the City not to treat the extension as an automatic administrative
continuation of the prior approval. The circumstances have changed, the City's regulationshave changed, and the City has adopted an extension process that expressly requires
consideration of current conditions.
Thank you for including this comment in the City's records concerning Application 23245 and
for addressing the specific issues raised above in the administrative review of the extensionrequest.
Respectfully,
Scott Bieluch
Adjoining Property Owner