HomeMy WebLinkAbout06 09 2008_Halfway House Conditional Use Permit andCommission Memorandum
Memorandum created on June 4, 2008
REPORT TO: Honorable Mayor & City Commission
FROM: Allyson C. Bristor, Associate Planner
SUBJECT: Halfway House Conditional Use Permit/COA #Z-08070
MEETING DATE: Monday, June 9, 2008
RECOMMENDATION: That the City Commission approves the Halfway House Conditional Use
Permit and Certificate of Appropriateness Application #Z-08072 with the conditions of approval as
outlined in the attached Staff Report.
BACKGROUND: A Conditional Use Permit (CUP) and Certificate of Appropriateness (COA)
application was submitted by property owner Clarice Dreyer, and applicant Shelly Johnson, of Alcohol
and Drug Services of Gallatin County (ADSGC). The application is requesting the establishment of a
community residential facility within the existing single-household residential structure at 119 South
Church Avenue. The facility will serve as a halfway house for eight male individuals who are seeking
rehabilitation of alcohol or drug dependency, and provide a safe and sober living environment. The
desired outcome is to ensure that each individual served has achieved employment, training, or
educational goals that promote economic stability and independence. The ultimate objective is to become
contributing, productive members of society.
During the Development Review Committee (DRC) consideration of the project, the application was
deemed “inadequate for further review” because it lacked some required information. The applicant
submitted the absent materials, and the application review continued. The last week of DRC review
occurred on May 28, 2008 and they recommended approval of the project as conditioned by Planning
Staff.
Following the DRC final review, the Planning Director determined the proposed parking configuration
did not meet the Unified Development Ordinance (Section 18.46.010.D). The City Commission opened
and continued the public hearing from Monday, June 2, 2008 to June 9, 2008, to allow adequate time for
the applicant to find and present a parking alternative to the Department of Planning & Community
Development.
UNRESOLVED ISSUES: A parking alternative was presented to Planning Staff on Tuesday, June 3,
2008, and was found as acceptable for further review and consideration by the Bozeman City
Commission on Monday, June 9, 2008.
FISCAL EFFECTS: Planning Staff is unaware of any fiscal effects affiliated with this proposal.
ALTERNATIVES: As suggested by the City Commission.
CONTACT: Please email Allyson Bristor at abristor@bozeman.net if you have any questions prior to
the public meeting.
APPROVED BY: Andrew Epple, Planning Director and Chris Kukulski, City Manager
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HALFWAY HOUSE CUP/COA
CITY COMMISSION STAFF REPORT #Z-08070
Halfway House CUP/COA Staff Report #Z-08070
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Item: Zoning Application #Z-08070, a Conditional Use Permit and Certificate
of Appropriateness application requesting the establishment of a
community residential facility within the existing building at 119 South
Church Avenue. Subject property is zoned as “R-2” (Residential Two-
Household, Medium Density District) and is located within the
Neighborhood Conservation Overlay District.
Property Owner: Clarice Dreyer
4750 Jordan Spur Road
Bozeman, MT 59715
Applicant: Alcohol and Drug Services of Gallatin County (ADSGC)
502 South 19th Avenue, #302
Bozeman, MT 59718
Representative: Shelly Johnson of ADSGC
502 South 19th Avenue, #302
Bozeman, MT 59718
Date: City Commission Public Hearing: OPENED AND CONTINUED from
Monday, June 2, 2008 to Monday, June 9, 2008, at 6:00 p.m. in the
Community Room of the Gallatin County Courthouse, 311 West Main
Street, Bozeman, MT 59715
Report By: Allyson C. Bristor, Associate Planner
Recommendation: Conditional Approval
________________________________________________________________________________________
BACKGROUND & PROPOSAL
A Conditional Use Permit (CUP) and Certificate of Appropriateness (COA) application was submitted by
property owner Clarice Dreyer, and applicant Shelly Johnson, of Alcohol and Drug Services of Gallatin
County (ADSGC). The application is requesting the establishment of a community residential facility within
the existing single-household residential structure at 119 South Church Avenue. The facility will serve as a
halfway house for eight male individuals who are seeking rehabilitation of alcohol or drug dependency, and
provide a safe and sober living environment. The desired outcome is to ensure that each individual served has
achieved employment, training, or educational goals that promote economic stability and independence. The
ultimate objective is to become contributing, productive members of society.
During the Development Review Committee (DRC) consideration of the project, the application was deemed
“inadequate for further review” because it lacked some required information. The applicant submitted the
absent materials, and the application review continued. The last week of DRC review occurred on May 28,
2008 and they recommended approval of the project as conditioned by Planning Staff.
Following the DRC final review, the Planning Director determined the proposed parking configuration did
not meet the Unified Development Ordinance (Section 18.46.010.D). The City Commission opened and
continued the public hearing from Monday, June 2, 2008 to June 9, 2008, to allow adequate time for the
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applicant to find and present a parking alternative to the Department of Planning & Community Development.
A parking alternative was presented to Planning Staff on Tuesday, June 3, 2008, and was found as acceptable
for further review and consideration by the Bozeman City Commission on Monday, June 9, 2008.
PROJECT LOCATION
The subject property is located at the northwest corner of the East Olive Street and South Church Avenue
intersection, and is legally described as twenty feet of Lot 8, Lots 9 & 10, Block A, Harper’s Addition, City of
Bozeman, Gallatin County, Montana. The property is zoned as “R-2” (Residential Two-Household, Medium
Density District) and is located within the Neighborhood Conservation Overlay District.
Two residential structures exist on the project site. One is a single-household residence and is addressed as
119 South Church Avenue. The other is a two-household residence and is addressed as 421 and 421 ½ East
Olive Street. The community residential facility is only proposed in 119 South Church Avenue.
RECOMMENDED CONDITIONS OF APPROVAL
The DRC and Planning Staff reviewed the CUP and COA application requesting the establishment of a
community residential facility within the existing building at 119 South Church Avenue, and find that this it is
in general compliance with the adopted Growth Policy and the Unified Development Ordinance. As a result,
the DRC recommends to the City Commission approval of said application with the conditions and code
provisions outlined in this report. Planning Staff has identified various code provisions that are currently not
met by this application. Some or all of these items are listed in the findings of this staff report. The applicant
must comply with all provisions of the Bozeman Unified Development Ordinance, which are applicable to
this project, prior to the commencement of use.
The following five conditions of approval are recommended to ensure the proposal’s compliance:
Conditions of Approval
1. The single-household residence (addressed at 119 South Church Avenue) shall provide no more than
three potential guest rooms, and each unit in the two-household residence (addressed at 421 East
Olive Street) shall provide no more than two bedrooms, per Table 46-2 of Section 18.46.040, BMC.
2. The residential structure at 119 South Church Avenue shall remain in compliance with criteria
included in the definition of “Community Residential Facility,” as defined in Section 18.80.630,
BMC. Specifically, the structure at 119 South Church Street shall operate in accordance with
regulations of the State Department of Public Health and Human Services for the rehabilitation of
alcohol or drug dependent persons.
3. The residential structure at 119 South Church Avenue shall comply with all applicable building and
fire code requirements pertaining to the operation of a community residential facility.
4. To eliminate threat to public safety, the existing sidewalk on the property (located between the two
residential structures) shall be repaired to avoid tripping hazards and provide an area for safe snow
removal, and any projecting pieces of the existing rod-iron fence shall be removed or repaired.
Halfway House CUP/COA Staff Report #Z-08070 2 111
5. All areas utilized for permanent parking space and driveways shall be paved with concrete or
asphaltic concrete, or approved pavers, to control dust and drainage, subject to final review and
approval by the City Engineering Department.
ZONING DESIGNATION & LAND USES
The subject property is zoned “R-2” (Residential Two-Household, Medium Density District). As stated in the
Unified Development Ordinance, the intent of the “R-2” residential district is to provide for one- to two-
household development at urban densities within the City in areas that present few or no development
constraints, and for community facilities to serve such development while respecting the residential quality
and nature of the area.
The Conditional Use Permit is the tool used by the Department of Planning to ensure no adverse effect to the
surrounding residential neighborhood will occur from the activities within the proposed facility.
The following land uses and zoning are adjacent to the subject property:
North: Two-household residence, zoned R-2;
South: Single-household residence, zoned as R-2;
East: Single-household residences, zoned R-2;
West: Single-household residence, zoned R-2.
ADOPTED GROWTH POLICY DESIGNATION
The development proposal is in conformance with the Bozeman 2020 Community Plan including the
“Residential” land use designation. This classification designates places where the primary activity is urban
density living quarters. Other uses that complement residences are also acceptable, such as parks, low
intensity home based occupations, fire stations, churches and schools. The dwelling unit density expected
within this category varies and a variety of housing types should be blended to achieve the desired density,
with large areas of single type housing discouraged. Additionally, all residential housing should be arranged
Halfway House CUP/COA Staff Report #Z-08070 3 112
with consideration given to the existing character of adjacent development.
REVIEW CRITERIA & FINDINGS
The DRC and Planning Staff reviewed the CUP and COA application against relevant chapters of the Unified
Development Ordinance, B.M.C., and offers the following summary review comments.
Section 18.28.050 “Standards for Certificates of Appropriateness”
Section 18.28.050 specifies the required standards for granting Certificate of Appropriateness approval.
Planning Staff evaluated the applicant's request under the standards and offers comments below.
A. All work performed in completion of an approved Certificate of Appropriateness shall be in
conformance with the most recent edition of the Secretary of Interior’s Standards for the
Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings (Published 1995), published by U.S. Department of the
Interior, National Park Service, Cultural Resource Stewardship and Partnerships, Heritage
Preservation Services, Washington, D.C. (available for review at the Department of Planning).
No exterior alterations to the existing buildings are proposed with the application, so the Secretary of
Interior’s Standards do not apply to the project.
B. Architectural appearance design guidelines used to consider the appropriateness and
compatibility of proposed alterations with original design features of subject structures or
properties, and with neighboring structures and properties, shall focus upon the following:
1. Height;
2. Proportions of doors and windows;
3. Relationship of building masses and spaces;
4. Roof shape;
5. Scale;
6. Directional expression;
7. Architectural details;
8. Concealment of non-period appurtenances, such as mechanical equipment;
9. Materials and color scheme.
No exterior alterations to the existing buildings are proposed with the application. As conditioned, all
areas utilized for permanent parking space and driveways shall be paved with concrete or asphaltic
concrete, or approved pavers, to control dust and drainage, subject to final review and approval by the
City Engineering Division.
C. Contemporary, nonperiod and innovative design of new structures and additions to existing
structures shall be encouraged when such new construction or additions do not destroy
significant historical, cultural or architectural structures, or their components, and when such
design is compatible with the foregoing elements of the structure and the surrounding
structures.
No exterior alterations to the existing buildings are proposed with the application.
D. When applying the standards of subsections A-C, the review authority shall be guided by the
Design Guidelines for the Neighborhood Conservation Overlay District which are hereby
Halfway House CUP/COA Staff Report #Z-08070 4 113
incorporated by this reference. When reviewing a contemporary, non-period, or innovative
design of new structures, or addition to existing structure, the review authority shall be guided
by the Design Guidelines for the Neighborhood Conservation Overlay District to determine
whether the proposal is compatible with any existing or surrounding structures.
No exterior alterations to the existing buildings are proposed with the application, so the Design
Guidelines do not apply to the project.
E. Conformance with other applicable development standards of this title.
The required criteria for site plan and conditional use permit review are examined in the following
sections.
Section 18.34 “Site Plan and Master Site Plan Review Criteria”
In considering applications for site plan approval under this title, the Planning Director, City Commission,
and DRC, shall consider the following.
A. Conformance to and consistency with the City’s adopted growth policy;
The proposed halfway house is a residential facility, and is in conformance with the Bozeman 2020
Community Plan including the “Residential” land use designation. This classification designates
places where the primary activity is urban density living quarters. Other uses that complement
residences are also acceptable, such as parks, low intensity home based occupations, fire stations,
churches and schools. The dwelling unit density expected within this category varies and a variety of
housing types should be blended to achieve the desired density, with large areas of single type
housing discouraged. Additionally, all residential housing should be arranged with consideration
given to the existing character of adjacent development.
B. Conformance to this title, including the cessation of any current violations;
The application is in compliance with the requirements set forth in the Unified Development
Ordinance, B.M.C. Any areas not addressed in the applicant’s proposal have been identified as code
provisions that must be addressed on the final site plan submittal.
C. Conformance with all other applicable laws, ordinances, and regulations;
Please reference the “City Commission Consideration and Findings for Conditional Use Permits”
section of this report, as it addresses conformance with other applicable regulations.
The applicant must comply with all provisions of the Bozeman Municipal Code, which are applicable
to this project prior to receiving Final Site Plan approval. The applicant is advised that unmet code
provisions, or code provisions that are not specifically listed as conditions of approval, does not, in
any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal
Code or state law.
Planning
Section 18.34.100.C, “City Commission Consideration and Findings for Conditional Use
Permits,” the right to a use and occupancy permit shall be contingent upon the fulfillment of all
general and special conditions imposed by the conditional use permit procedure.
Halfway House CUP/COA Staff Report #Z-08070 5 114
Section 18.34.100.C, “City Commission Consideration and Findings for Conditional Use
Permits,” all of the special conditions shall constitute restrictions running with the land use, shall
apply and be adhered to by the owner of the land, successors or assigns, shall be binding upon the
owner of the land, his successor and assigns, shall be consented to in writing, and shall be
recorded as such with the County Clerk and Recorder’s Office by the property owner prior to the
issuance of any building permits, final site plan approval or commencement of the conditional
use.
Section 18.34.130 requires the applicant to submit seven (7) copies a Final Site Plan within 6
months of preliminary approval containing all of the conditions, corrections and modifications to
be reviewed and approved by the Planning Office.
o If occupancy of any structure is to occur prior to the installation of all required on-site
improvements, the Improvements Agreement must be secured by a method of security equal
to one and one-half times the amount of the estimated cost of the scheduled improvements
not yet installed. Said method of security shall be valid for a period of not less than twelve
(12) months; however, the applicant shall complete all on-site improvements within nine (9)
months of occupancy to avoid default on the method of security.
Section 18.34.140 states that a Building Permit must be obtained prior to the work, and must be
obtained within one year of Final Site Plan approval. Building Permits will not be issued until
the Final Site Plan is approved.
Section 18.38.050.F requires all mechanical equipment to be screened. Rooftop equipment
should be incorporated into the roof form and ground mounted equipment shall be screened with
walls, fencing or plant materials.
Section 18.42.150 requires a lighting plan for all on-site lighting including wall-mounted lights
on the building must be included in the final site plan submittal. Lighting cut-sheets shall be
provided with the final site plan.
Section 18.46.020 states that all areas intended to be utilized for permanent parking space and
driveways shall be paved with concrete or asphaltic concrete, or approved pavers, to control dust
and drainage. All proposed parking areas and driveway improvements shall required a grading
and drainage plan approved by the City Engineer.
D. Relationship of site plan elements to conditions both on and off the property;
No exterior changes are proposed to the two existing residences on the property. The overall site
layout of the property is unaffected by the proposal. The parking driveway remains in the northern
portion of the lot, with an access off the alley that runs along the property lot’s west perimeter. A
new parking area is proposed between the two residential structures. All parking and driveway areas
will be improved with a concrete or asphalt surface to control drainage and dust.
With the conditions outlined by Planning Staff and the Development Review Committee, the
elements of the site plan including landscaping, interior building design, parking layout and
circulation are found as compatible with the surrounding residential neighborhood.
E. The impact of the proposal on the existing and anticipated traffic and parking conditions;
Halfway House CUP/COA Staff Report #Z-08070 6 115
A total of seven parking spaces are required for this residential proposal. Per the Unified
Development Ordinance, one parking space is required for each potential guest room in the
community residential facility. Three bedrooms exist in 119 South Church Avenue, creating the
demand for three parking spaces. Planning Staff confirmed the number of bedrooms with a site visit
to the property on May 27, 2008. Also per the UDO, two parking spaces are required for each two-
bedroom unit. Four total bedrooms exist in 421 East Olive Street, creating a total demand for four
parking spaces. Property owner, Clarice Dreyer, submitted a notarized affidavit to the Department of
Planning confirming the four bedrooms in the building (enclosed with this report).
The proposed site plan shows three 7’ x 24’ on-street parking spaces on East Olive Street, all which
are outside of the required street vision triangle areas. Two of these on-street spaces are for the use of
the two-household residence at 421 East Olive Street. One is for the use of the community residential
facility at 119 South Church Avenue.
The proposed site plan shows three 9’ x 20’ off-street parking spaces between the two residential
structures. Two of these off-street parking spaces are for the use of the two-household residence at
421 East Olive Street. One is for the use of the community residential facility at 119 South Church
Avenue.
The remaining parking space required for the community residential facility at 119 South Church
Avenue is supplied in the 9’ x 20’ parking area under the existing carport.
F. Pedestrian and vehicular ingress and egress;
A private sidewalk branches off the East Olive Street public sidewalk, and travels between the two
existing residences. Planning Staff is conditioning the sidewalk to be repaired in any areas that could
create tripping hazards (for example, severe cracks or bulging panels).
G. Landscaping, including the enhancement of buildings, the appearance of vehicular use, open
space, and pedestrian areas, and the preservation or replacement of natural vegetation;
All of the existing vegetation and landscaping on the property is proposed to remain.
H. Open space;
Per the Unified Development Ordinance, this residential site plan is for less than five dwelling units
and no open space is required.
I. Building location and height;
No exterior building alterations are proposed with the application.
J. Setbacks;
Per the Unified Development Ordinance, the improved parking area is designed to be located outside
any required front or side yard setbacks. Parking is provided only in required rear yard setbacks.
K. Lighting;
Halfway House CUP/COA Staff Report #Z-08070 7 116
All proposed lighting on site shall conform to the requirements outlined in the Unified Development
Ordinance. Details of all proposed lighting fixtures, both building mounted and freestanding, shall be
supplied with the final site plan materials.
L. Provisions for utilities, including efficient public services and facilities;
The location of existing water and sewer mains, as well as nearby fire hydrants, shall be properly
depicted on the final site plan materials.
M. Site surface drainage;
Site surface drainage will be reviewed by the City Engineering Department upon final site plan
submittal.
N. Loading and unloading areas;
The improved parking area provides pedestrian access to all buildings on the property.
O. Grading;
The proposed surface grading will be reviewed by the City Engineering Department upon final site
plan submittal.
P. Signage;
All proposed signage shall conform to the requirements outlined in the Unified Development
Ordinance, as stated in Section 18.52.050.B.
Q. Screening;
All mechanical equipment must be screened. Ground-mounted equipment shall be screened from all
views by either dense plant material or a solid wall. Rooftop mechanical equipment shall be either
fully screened by incorporating the equipment into the roof form or be fully hidden behind a parapet
wall.
R. Overlay district provisions;
The site falls within the Neighborhood Conservation Overlay District. A Certificate of
Appropriateness will be issued with this application.
S. Other related matters, including relevant comment from affected parties;
Since its submittal, the application has received a lot of attention and concern by the surrounding
neighborhood and the greater Bozeman community. Several letters of public comment were
submitted to the Department of Planning & Community Development, all which are enclosed with
this report.
The issues of concern by the public are adequately addressed with the facts presented in this report.
Additionally, City Attorney Paul Luwe provided a memo to the City Commission that addresses the
legal concerns of the public (submitted separately from this report).
Halfway House CUP/COA Staff Report #Z-08070 8 117
T. If the development includes multiple lots that are interdependent for circulation or other means
of addressing requirement of this title, whether the lots are either:
a. Configured so that the sale of individual lots will not alter the approved configuration or
use of the property or cause the development to become nonconforming;
b. The subject of reciprocal and perpetual easements or other agreements to which the City is
a party so that the sale of individual lots will not cause one or more elements of the
development to become nonconforming.
Not applicable.
Section 18.34.100 “City Commission Consideration and Findings for Conditional Use Permits”
In addition to the review criteria outlined above, the City Commission shall, in approving a conditional use
permit, find favorably as follows:
1. That the site for the proposed use is adequate in size and topography to accommodate such use,
and all yards, spaces, walls and fences, parking, loading and landscaping are adequate to
properly relate such use with the land and uses in the vicinity.
With the conditions outlined by Planning Staff, the site is found as adequate in size and topography to
accommodate a community residential facility. No exterior changes are proposed to the two existing
residences on the property. The overall site layout of the property is unaffected by the proposal. The
parking driveway remains in the northern portion of the lot, with an access off the alley that runs
along the property lot’s west perimeter. A new parking area is proposed between the two residential
structures. All parking and driveway areas will be improved with a concrete or asphalt surface to
control drainage and dust.
2. That the proposed use will have no material adverse effect upon the abutting property. Persons
objecting to the recommendations of review bodies carry the burden of proof.
Detailed information about the proposed residential treatment program was presented to Planning
Staff by the applicant. After reviewing the submitted information, Staff determined the proposed
halfway house will have no material adverse effect upon the abutting properties.
Each resident of the halfway house goes through a comprehensive evaluation process with a Licensed
Addiction Counselor. If an individual requires stabilization or detox, he will be referred to the
appropriate facility where those services are provided. The proposed halfway house at 119 South
Church Avenue is not a stabilization or detox unit. Residents are required to remain abstinent from
the use of alcohol and drugs. Random drug screens and breathalyzers will be conducted on-site, on a
regular basis, to maintain abstinence. Additionally, each individual goes through a lengthy screening
process ruling out any sexual or violent offenders.
The proposed halfway house will provide staffing that promotes public safety and resident
accountability. Staffing will meet safety and program needs and shall be established in agreement
with the regulations of the State Department of Public Health and Human Services (DPHHS). This is
ensured with the recommended conditions of approval, as presented by Planning Staff (condition #2).
3. That any additional conditions stated in the approval are deemed necessary to protect the
public health, safety and general welfare. Such conditions may include, but are not limited to:
Halfway House CUP/COA Staff Report #Z-08070 9 118
regulation of use; special yards, spaces and buffers; special fences, solid fences and walls;
surfacing of parking areas; requiring street, service road or alley dedications and
improvements or appropriate bonds; regulation of points of vehicular ingress and egress;
regulation of signs; requiring maintenance of the grounds; regulation of noise, vibrations and
odors; regulation of hours for certain activities; time period within which the proposed use shall
be developed; duration of use; requiring the dedication of access rights; other such conditions
as will make possible the development of the City in an orderly and efficient manner.
a. Regulation of use: As conditioned, the single-household residence (addressed at 119 South
Church Avenue) shall provide no more than three potential guest rooms, and each unit in the two-
household residence (addressed at 421 East Olive Street) shall provide no more than two
bedrooms, per Table 46-2 of Section 18.46.040, BMC.
b. Special yards, spaces and buffers: All parking areas are provided outside of the required side and
front yard setbacks, so no special conditions required.
c. Special fences, solid fences and walls: To eliminate threat to public safety, any projecting pieces
of the existing rod-iron fence shall be removed or repaired.
d. Surfacing of parking areas: All areas utilized for permanent parking space and driveways shall be
paved with concrete or asphaltic concrete, or approved pavers, to control dust and drainage,
subject to final review and approval by the City Engineering Department.
e. Requiring street, service road or alley dedications and improvements: No special conditions
required.
f. Regulation of points of vehicular ingress and egress: No special conditions required.
g. Regulation of signs: No comprehensive sign plan required because one tenant.
h. Requiring maintenance of the grounds: To eliminate threat to public safety, the existing sidewalk
on the property (located between the two residential structures) shall be repaired to avoid tripping
hazards and provide an area for safe snow removal. A drainage and grading plan shall be
approved by the City Engineering Department.
i. Regulation of noise, vibrations and odors: No special conditions required.
j. Regulation of hours for certain activities: No special conditions required.
k. Time period within which the proposed use shall be developed: No special conditions required.
l. Duration of use: If complaints are received by the Department of Planning & Community
Development about the property (parking shortage, street disturbance, etc.), the CUP may be
revoked.
m. The dedication of access rights: No special conditions required.
n. Other such conditions as will make possible the development of the City in an orderly and
efficient manner: The residential structure at 119 South Church Avenue shall remain in
compliance with criteria included in the definition of “Community Residential Facility,” as
defined in Section 18.80.630, BMC. Specifically, the structure at 119 South Church Street shall
operate in accordance with regulations of the State Department of Public Health and Human
Services for the rehabilitation of alcohol or drug dependent persons.
PUBLIC COMMENT
The application was publicly noticed to adjoining property owners within 200 feet of the subject property and
in the Bozeman Daily Chronicle.
Since its submittal, the application has received a lot of attention and concern by the surrounding
neighborhood and the greater Bozeman community. Several letters of public comment were submitted to the
Department of Planning & Community Development, all which are enclosed with this report.
The issues of concern by the public are adequately addressed with the facts presented in this report.
Halfway House CUP/COA Staff Report #Z-08070 10119
Halfway House CUP/COA Staff Report #Z-08070 11
Additionally, City Attorney Paul Luwe provided a memo to the City Commission that addresses the legal
concerns of the public (submitted separately from this report).
CONCLUSION
The DRC and Planning Staff reviewed the CUP and COA application requesting the establishment of a
community residential facility within the existing building at 119 South Church Avenue, and find that this it is
in general compliance with the adopted Growth Policy and the Unified Development Ordinance. As a result,
the DRC recommends to the City Commission approval of said application with the conditions and code
provisions outlined in this report. Planning Staff has identified various code provisions that are currently not
met by this application. Some or all of these items are listed in the findings of this staff report. The applicant
must comply with all provisions of the Bozeman Unified Development Ordinance, which are applicable to
this project, prior to the commencement of use.
Attachments: Applicant’s Submittal Materials
Revised Site Plan (dated June 2, 2008)
Contracts
Public comment
Report Sent To: Clarice Dreyer, 4750 Jordan Spur Road, Bozeman, MT 59715
Alcohol and Drug Services of Gallatin County, 502 S. 19th Avenue, #302, Bozeman,
MT 59718
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MEMORANDUM
TO: Honorable Mayor and City Commission
FROM: Paul J. Luwe, Bozeman City Attorney
DATE: June 4, 2008
RE: Proposed CUP for Halfway House to be located at S. Church
ISSSUE
Does the proposed Halfway House to be located at 119 South Church meet the
definition of a “community residential facility” under MCA § 76-2-411 and
requirements under MCA § 76-2-412?
CONCLUSION
The proposed halfway house does meet the definition and requirements of MCA §
76-2-411 and -412.
DISCUSSION
Alcohol & Drug Services of Gallatin County (ADSGC) submitted an application for a
halfway house to be located at 119 South Church. The neighbors are protesting the
location of the halfway house contending that the proposed use is a “recovery house” and
therefore does not meet the state statutory definition of community residential facility,
MCA § 76-2-411. They additionally argue that the halfway house does not meet the
requirements of MCA § 76-2-412(1) because the halfway house does not provide staffing
for 24 hours.
Alcohol & Drug Services of Gallatin County (ADSGC) is a private non-profit corporation
and is licensed by the Montana Department of Public Health and Human Services
(DPHHS), Addictive and Mental Disorders Division. The 2007 Legislature provided
funding for the treatment of Chemical Dependency to the Department of Health and
Human Services (DHHS). DHHS issued requests for proposals for an eight site multi-
level residential treatment system to be operated across the state of Montana. Boyd
Andrew Community Services was awarded the contract. One of the eight sites is being
proposed at 119 South Church and will be operated by ADSGC. The site at Bozeman will
be a halfway house for up to eight male individuals. ADSGC has submitted an application
to the City for a conditional use permit for this residential facility. The application
provides that staffing will “be established in agreement with the DPHHS” and states that
staffing will be provided “Monday through Friday from 8:00 am to 5:00 pm and Saturdays
and Sundays 8 hours per day.”
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MCA § 76-2-412 reads:
Relationship of foster homes, kinship foster homes, youth shelter care
facilities, youth group homes, community residential facilities, and
day-care homes to zoning. (1) A foster home, kinship foster home, youth
shelter care facility, or youth group home operated under the provisions of
52-2-621 through 52-2-623 or a community residential facility serving
eight or fewer persons is considered a residential use of property for
purposes of zoning if the home provides care on a 24-hour-a-day basis.
(2) A family day-care home or a group day-care home registered
by the department of public health and human services under Title 52,
chapter 2, part 7, is considered a residential use of property for purposes of
zoning.
(3) The facilities listed in subsections (1) and (2) are a permitted
use in all residential zones, including but not limited to residential zones for
single-family dwellings. Any safety or sanitary regulation of the department
of public health and human services or any other agency of the state or a
political subdivision of the state that is not applicable to residential
occupancies in general may not be applied to a community residential
facility serving 8 or fewer persons or to a day-care home serving 12 or
fewer children.
(4) This section may not be construed to prohibit a city or county
from requiring a conditional use permit in order to maintain a home
pursuant to the provisions of subsection (1) if the home is licensed by the
department of public health and human services. A city or county may not
require a conditional use permit in order to maintain a day-care home
registered by the department of public health and human services.
(emphasis added).
MCA § 76-2-411 defines community residential facility as:
Definition of community residential facility. "Community residential
facility" means:
(1) a community group home for developmentally, mentally, or
severely disabled persons that does not provide skilled or intermediate
nursing care;
(2) a youth foster home, a kinship foster home, a youth shelter care
facility, a transitional living program, or youth group home as defined in
52-2-602;
(3) a halfway house operated in accordance with regulations of the
department of public health and human services for the rehabilitation of
alcoholics or drug dependent persons;
(4) a licensed adult foster family care home; or
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(5) an assisted living facility licensed under 50-5-227. (emphasis
added)
I am not aware of any evidence that the halfway house is not going to be operated
in accordance with the regulations of the public health and human services for the
rehabilitation of alcoholics or drug dependent persons. The contract requires that
the facility be operated as provided by the RFP and the RFP sets forth numerous
requirements and monitoring. The contract in Section 2 reads: “As the successful
respondent to RFP 08-1470-P, the Contractor is to develop, implement and
administer a stat-wide, structured, comprehensive, community based supportive
living and residential treatment system for clients addicted to methamphetamine
and other drugs, including alcohol who meet the appropriate American Society for
Addiction Medicine [ASAM] diagnostic criteria which provides individual and
group treatment utilizing a therapeutic community model with continuing care
services for clients returning to community settings.” The RFP and Contract
contemplate that the halfway house is to be a community residential facility under
the statute.
The neighbors also argue that this facility does not comply with statute because the
statute requires the home to provide “care on a 24-hour-a-day basis” and point to
ARM 37.27.102 which defines residential as, “means a facility providing 24 hour
care, room and board.” The ARM does not define “care.” The neighbors intimate
that the use of word “care” means staffed 24 hours. If the legislature intended
such a narrowed interpretation of care they would have so defined or qualified the
word “care.” See MCA § 1-2-101 (in construction of statutes, the court is not to
insert what has been omitted or omit what has been inserted). The facility will be
providing care on a 24 hour basis, albeit unstaffed part of the time, it is still
providing some form of care.
In construing statutes, the intention of the legislature is to be pursued. See MCA §
1-2-102. The residential community facility statute is the Montana legislative
policy to implement Article XII, Section 3(3) of the Montana Constitution.1 See
Thelen v. Missoula, 168 Mont. 375, 543 P.2d 173 (1975) (held that City zoning
regulations should be revised to meet legislative requirements). and State ex rel.
Region II Family Services v. District Court of Eighth Judicial Dist. 187 Mont.
126, 609 P.2d 245 (1980) (held that subdivision covenant limiting use of property
in Great Falls subdivision to single-family dwellings could not prohibit community
residential facility).
The Montana Supreme Court has clearly and emphatically held that group homes
“will not require community residential facilities to repeatedly defend their well
establish right to locate in any residential area in Montana.” In Mahrt v. City of
1Article XII, § 3(3) provides: “The legislature shall provide such economic assistance and social and
rehabilitative services as may be necessary for those inhabitants who, by reason of age, infirmities, or
misfortune, may have need for the aid of society.”
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Kalispell, 213 Mont. 96, 690 P.2d 418 (1984), the court in finding that Kalispell’s
appeal to be meritless and frivolous, stated:
There is absolutely no question that in Montana a group home for
eight or fewer people is a residence and may be located in any area
in Montana zoned residential. Article XII, § 3(3) of the Montana
Constitution, Title 76, Ch.2, Part 4 of Montana statutory law and
case law as state in Thelen v. Missoula (citations omitted), make it
clear this is the rule in Montana. This Court will not require
Community residential facilities to repeatedly defend their well
established right to locate in any residential area in Montana.
(emphasis added).
Unless new facts come to light at the hearing, it is my opinion that the applicant
meets the definition of “community residential facility.”
PJL
cc:
Chris Kukulski, City Manager
Ron Brey, Assistant City Manager
Andy Epple, Planning Director
Tim Cooper, Assistant City Attorney
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