Loading...
HomeMy WebLinkAbout09-29-26 Public Comment - S. Bieluch - Re_ Your Communications Re_ Site Plan application 23245 with staff correspondenceFrom:Scott Bieluch To:Kelley Rischke; Bozeman Public Comment; cityclerksdepartment@bozemanmt.gov; cityattorney@bozemanmt.gov Cc:Erin George Subject:[EXTERNAL]Re: Your Communications Re: Site Plan application 23245 Date:Tuesday, September 29, 2026 8:11:33 PM 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. Dear Ms. Rischke, Thank you for your response and for confirming that my September 25 communication will be included in the City's online repository of public comments. I appreciate the clarificationregarding the City's position on the prior public-comment period. I do, however, respectfully disagree with several aspects of your response, and I wouldappreciate clarification of the specific legal provisions supporting the City's position. First, I understand that the original public-comment period for Application 23245 closed onMay 30, 2024, and that the City's substantive decision on the original site plan was made in September 2025. I am not attempting to reopen that original public-comment period orrelitigate the City's September 2025 decision. My concern is the separate pending decision concerning an extension of the approved siteplan. The City's current Planning materials identify “Extension to Approved Plan (EXT)” as adistinct planning application type. More importantly, the City's current Extension to Approved Plan application specifically requires the applicant to provide informationconcerning the present condition of the site, the development's phasing and ability to operate, dependence on public infrastructure and private improvements, and, importantly, whethermitigation identified during the original review remains “relevant, adequate, and applicable to the present circumstances of the development and community.” That requirement appears significant here because the extension decision necessarily involves consideration of circumstances existing today rather than simply ministerial recognition of adecision made in 2025. I therefore respectfully request that the City identify the specific provision of the BozemanMunicipal Code that makes the extension decision categorically exempt from public participation and, separately, the specific provision that makes the resulting administrativedecision non-appealable. 1. The extension is a separate administrative action The City's own current Planning materials distinguish an Extension to Approved Plan from theoriginal Site Plan application and provide a separate application and review process forextensions. I therefore do not believe that the expiration of the public-comment period for the original Site Plan automatically resolves the procedural rights associated with a subsequent extensionapplication. If the City's position is that the extension is nevertheless merely ministerial and not a newadministrative project decision, please identify the specific BMC provision establishing that classification. If, instead, the extension is an administrative decision by the Community Development Director or another administrative review authority, please explain why the City's currentappeal provisions do not apply. 2. The City's own appeal materials appear broader than the position stated in your email The City's current Planning webpage expressly identifies: “Appeal of Administrative Project Decision | BMC 38.250.030” as the City's applicable appeal process. It further states that an Administrative Project Decision Appeal must be filed within ten working days following the final decision of theadministrative review authority. The City's development records also demonstrate that administrative decisions by theCommunity Development Director have historically been subject to appeal by an “aggrieved person” under BMC 38.250.030, including decisions involving modifications to previouslyapproved development. I recognize that the precise application of BMC 38.250.030 to this particular extensiondepends upon the legal classification of Application 23245 and the version of the Code governing the extension. That is precisely why I am asking the City to identify the controlling provision rather than simply stating that the decision is not appealable. If the City believes BMC 38.250.030 does not apply to this extension, please identify: 1. The specific subsection of BMC 38.250.030 or another provision that excludes this typeof decision; 2. The provision governing extensions of approved plans;3. The provision establishing that an extension decision is not a “final administrative project decision”; and4. The legal basis for concluding that an aggrieved neighboring property owner has no administrative appeal from that decision. 3. Montana Constitution, Article II, Section 8 I also want to clarify my position regarding the Montana Constitution. Article II, Section 8 provides: “The public has the right to expect governmental agencies to afford such reasonable opportunity for citizen participation in the operation of the agenciesprior to the final decision as may be provided by law.” I recognize that Article II, Section 8 does not, standing alone, establish a universal right toappeal every governmental decision. My point is that the constitutional right of participationmust be considered together with the statutory and municipal procedures governing theparticular land-use decision. Where the City has established procedures for participation and administrative appeals, I donot believe the City should characterize a subsequent discretionary land-use decision ascategorically beyond public participation or review without identifying the legal authority fordoing so. Accordingly, I am asking the City to identify the specific statutory and municipal provisionsthat govern this extension and explain how those provisions are consistent with the City'sobligations concerning public participation and administrative review. 4. The extension application itself requires consideration of current circumstances I am particularly concerned about the City's statement that my September 25 comments cannotbe “considered in connection with any prior or pending application.” I understand that comments submitted after the original comment period cannot retroactivelybecome timely comments on the 2024 Site Plan application. However, my September 25 communication concerns current conditions and the pendingextension decision, including changes in traffic, surrounding development, pedestrianactivity, infrastructure, site conditions, and other circumstances that have arisen since theoriginal review. The City's current extension application specifically asks whether mitigation identified duringthe original review remains relevant, adequate, and applicable to the present circumstances ofthe development and community. It therefore seems important to distinguish between: comments attempting to change or reopen the 2025 final Site Plan decision; andinformation concerning whether the prerequisites and criteria for granting an extensionare satisfied today. I am raising the latter. If the City has determined that none of this information may be considered in deciding theextension, I respectfully request that the City identify the code provision that prevents thedecision-maker from considering evidence directly relevant to the extension criteria. 5. Montana Land Use Planning Act I also ask the City to clarify whether the pending extension has been evaluated under thecurrent Montana Land Use Planning Act. MCA 76-25-503 provides an administrative appeal procedure for a “final administrative landuse decision” made pursuant to the Act, including certain zoning and variance decisions, and provides an appeal mechanism for an aggrieved person. The statute also establishesadministrative exhaustion requirements before judicial review. I understand that there may be questions concerning the applicability of the current MLUPAprovisions to a project originally submitted and approved under an earlier regulatory regime. I am not assuming that MCA 76-25-503 necessarily controls Application 23245. I am instead asking the City to make that determination explicit: Does the City consider the pending extension a final administrative land-use decisionunder MCA 76-25-503? If not, what statutory provision makes it exempt?Does MCA 76-25-305 apply to the extension review? If not, what is the City's legal basis for concluding that it does not apply?What administrative appeal procedure, if any, does the City consider available following the extension decision? 6. Request for the actual legal basis rather than a general conclusion I want to emphasize that I am not asking the City Attorney's Office to provide me with legalrepresentation or individualized legal advice. I am asking the City to identify the legal authority governing a City land-use decision thatdirectly affects my property and my legal interests as an adjoining property owner. The City's own Planning materials state that the Development Review process is intended toensure that proposed developments meet the requirements of the UDC and promote publichealth, safety, and general welfare. The City also currently maintains an appeal processspecifically for administrative project decisions. Given those provisions, I believe it is reasonable to ask the City to identify the precise legaldistinction it is relying upon to conclude that this particular administrative decision is outsidethe City's normal administrative appeal process. I would therefore appreciate a written response identifying: 1. The exact BMC provision governing the Application 23245 extension;2. The exact BMC provision establishing whether the extension is appealable;3. The legal basis for determining that I, as an adjoining property owner, cannot appeal theextension decision;4. Whether the City considers the extension a final administrative land-use decision underMCA 76-25-503;5. Whether MCA 76-25-305 has been considered and, if not applicable, why;6. The criteria the Director will apply in deciding whether to grant the extension; and7. The date on which the extension decision becomes final and the procedure and deadlinefor any administrative appeal that the City considers available. I appreciate that the original Site Plan decision was made in 2025 and that the original appeal period has expired. I am not disputing that point. My concern is that the expiration of theappeal period for the original decision should not necessarily resolve the separate legal questions concerning a subsequent extension of that approval. My objective is simply to understand what law and code govern the pending decision and what procedural rights apply to an adjoining property owner. Thank you for your time and for providing a written response. I appreciate the City's attention to these questions and would like to resolve the procedural and legal issues based on theapplicable statutes and ordinances. Sincerely, Scott Bieluch On Tue, Sep 29, 2026 at 4:05 PM Kelley Rischke <Kelley.Rischke@bozemanmt.gov> wrote: Dear Mr. Bieluch, Per your request, I write to confirm receipt of your communication sent via email on September 25, 2026. However, no public comment period is afforded for an extension to an already-approvedsite plan application. The public comment period for application 23245 closed on May 30, 2024. While your email will be included in the City’s online repository of public comments, it will notbe considered in connection with any prior or pending application nor will it be included in the administrative record of application 23245. Only public comments timely submitted during anopen public comment period are included in the administrative record. As I informed you via hard copy letter in April 2026, final approval of site plan application 23245was granted in September 2025. Our records indicate that you sent multiple public commentsduring the open public comment period for application 23245, all of which were considered priorto the City making a final decision on the site plan application. The substantive decision on this application was made one year ago and the period to appeal the decision has passed. Sincerely, Kelley Rischke Kelley Rischke | Assistant City Attorney City of Bozeman 406-582-2309 Kelley.Rischke@bozemanmt.gov Mail: Bozeman City Attorney’s Office PO Box 1230 Bozeman, MT 59771-1230 Physical Criminal: Physical Civil: 901 North Rouse 121 North Rouse Bozeman, MT 59715 Bozeman, MT 59715 (406) 582-2309 (406) 582-2309 From: Scott Bieluch <s.bieluch@gmail.com> Sent: Friday, September 25, 2026 6:41 PM To: Planning Technician <PlanningTech@bozemanmt.gov>; Bozeman Public Comment <comments@bozemanmt.gov>; cityclerksdepartment@bozemanmt.gov; gsullivan@bozemanmt.gov; cityattorney@bozemanmt.gov; Emma Bode <Emma.Bode@bozemanmt.gov>; Douglas Fischer <Douglas.Fischer@bozemanmt.gov>; Alison Sweeney <Alison.Sweeney@bozemanmt.gov>; Joey Morrison <Joey.Morrison@bozemanmt.gov>; agenda@bozemanmt.gov; Jennifer Madgic <Jennifer.Madgic@bozemanmt.gov>; Bailey Minnich <Bailey.Minnich@bozemanmt.gov> Subject: [EXTERNAL]URGENT: Legal Objection & Demand for Denial of Site Plan Extension – Application #23245 (811 W. Mendenhall St) 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. Subject: URGENT: Legal Objection & Demand for Denial of Site Plan Extension – Application #23245 (811 W. Mendenhall St) To: planningtech@bozemanmt.gov; planning@bozeman.net Cc: bminnich@bozeman.net Dear Bailey Minnich and the Bozeman Community Development Department, Please accept this correspondence as a formal, legal objection to any proposed administrative timeline extensions for Application #23245 (811 W. MendenhallStreet Mixed-Use Site Plan). As an immediate community stakeholder, I am writing to demand that the Planning Department strictly enforce municipal standards and deny the developer's extension request. Under the City of Bozeman’s regulatory framework and the Unified DevelopmentCode (UDC), an administrative extension demands an explicit demonstration of justifiable cause. A developer's failure to execute a project within the legally prescribed approval window does not automatically entitle them to a rubber- stamped renewal—especially when neighborhood conditions have fundamentallytransformed since the original application was filed. Allowing this extension would create an unacceptable loophole, allowing a legacy project to bypass current, updated 2026 municipal metrics regarding infrastructure capacity, stormwater management, and traffic mitigation. Midtown Bozeman isfacing unprecedented density strain; to allow a massive mixed-use development to proceed based on stale, years-old impact studies severely compromises public safety and local infrastructure. Per Bozeman development rules, when a developer fails to implement improvementrequirements within specified limits, they must forfeit the right to proceed under the final plan and be forced to resubmit all materials through the full preliminary plan review procedure. I expect the Community Development Department to uphold its duty to responsible,lawful growth. I demand that this extension be denied, and that any future activity on 811 W. Mendenhall Street be subjected to a completely new application process reflecting the reality of our community today. Please confirm receipt of this email and verify that it has been permanentlyattached as an active objection to the administrative record for Application #23245. Sincerely, Scott Bieluch Adjoining property owner Bozeman, MT 59715 City of Bozeman emails are subject to the Right to Know provisions of Montana’s Constitution (Art. II, Sect. 9) and may be considered a “public record” pursuant to Title 2, Chpt. 6, Montana Code Annotated. As such, this email, its sender and receiver, and the contents may be available for public disclosure and will be retained pursuant to the City’s record retention policies. Emails that contain confidential information such as information related to individual privacy may be protected from disclosure under law.