HomeMy WebLinkAbout6-2-08_South Towne Square Zoning Variance
Commission Memorandum
TO: Honorable Mayor and City Commission
FROM: Brian Krueger, Associate Planner
SUBJECT: South Towne Square Zoning Variance #C-08003
MEETING DATE: Monday, June 2, 2008 at 6:00 p.m.
Public Hearing
RECOMMENDATION: That the Commission approve the South Towne Square Zoning
Variance application #C-08003.
BACKGROUND: The property owner and applicant, Kailo II Corporation, and representative,
Allied Engineering Services, submitted a level of service zoning variance application. The South
Towne Square site plan development is a commercial condominium property located at the
southeast corner of Kagy Boulevard and South 3rd Avenue. The City Commission reviewed the
application on May 14th, 2007 and recommended approval with 15 conditions of approval for
application #Z-07051. The standard review authority for variance applications is the Board of
Adjustment. The City Commission on May 5, 2008 voted affirmatively to reclaim jurisdiction of
this variance application from the Board of Adjustment. The City Commission is the final
review authority for this application.
UNRESOLVED ISSUES: None.
FISCAL EFFECTS: The Department of Planning is not aware of any fiscal effects for the
proposed development at this time.
ALTERNATIVES: As suggested by the City Commission.
CONTACT: Please email Brian Krueger at bkrueger@bozeman.net if you have any questions
prior to the public hearing.
APPROVED BY: Andrew Epple, Planning Director
Chris Kukulski, City Manager
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CITY COMMISSION STAFF REPORT
SOUTH TOWNE SQUARE VARIANCE FILE NO. #C-08003
#C-08003 South Towne Square Variance Staff Report 1
Item: Variance Application #C-08003, to allow the following variance relating to the
South Towne Square project at 2000 South 3rd Avenue, on a lot that is legally
described as Lot 3A, Block 4, Thompson’s 3rd Addition and zoned B-1
(Neighborhood Business District):
Section 18.44.060.D “Level of Service Standards” to allow occupancy of the
South Towne Square project without mitigating an identified deficient level of
service and to allow a movement at the intersection of South 7th Avenue and West
Kagy Boulevard to operate at less than a level of service “D.”
Owner/Applicant: Kailo II Corporation
9350 Walker Road
Belgrade, MT 59714
Representative: Allied Engineering Services
32 Discovery Drive
Bozeman MT 59718
Date/Time: Before the Bozeman City Commission on Monday, June 2, 2008 at 6:00 p.m.,
in the Community Room, Gallatin County Courthouse, 311 West Main Street,
Bozeman, Montana
Report By: Brian Krueger, Associate Planner
Recommendation: Approval
____________________________________________________________________________________
PROJECT LOCATION
The subject property is generally located at 2000 S. 3rd Avenue and is legally described as Lot 3, Block 4 of
Thompson’s Addition #3 Subdivision, SW ¼ Sec. 18 Township 2S, Range 6E, PMM, City of Bozeman,
Gallatin County, Montana. The property is zoned B-1 (Neighborhood Business District). The variance
request is related to the intersection of W. Kagy Blvd. and S. 7th Avenue which is due west of the project
location.
Please refer to the vicinity map provided on Page 2.
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#C-08003 South Towne Square Variance Staff Report 2
PROPOSAL
This is a variance application to allow the following variance from Title 18 of the Bozeman Municipal Code:
Section 18.44.060.D “Level of Service Standards” to allow occupancy of the South Towne Square project
without mitigating an identified deficient level of service and to allow a movement at the intersection of
South 7th Avenue and West Kagy Boulevard to operate at less than a level of service “D.”
ZONING DESIGNATION & LAND USES
The subject property is currently under construction with the neighborhood business project approved in
zoning file #Z-07051 which includes four 5,000 square foot buildings and one 4,000 square foot building
for retail and office uses with related site improvements. The subject property is zoned B-1 (Neighborhood
Business District). The intent of the B-1 district is to provide for smaller scale retail and service activities
frequently required by neighborhood residents on a day to day basis, as well as residential development as a
secondary purpose, while still maintaining compatibility with adjacent residential uses. Development scale
and pedestrian orientation are important elements of this district. The following land uses and zoning are
adjacent to the subject property:
North: Kagy Corner and other neighborhood business uses, zoned B-1 (Neighborhood Business
District). Single Household residential, zoned R-1 (Residential Single Household, Low
Density District).
South: Single Household residential, zoned R-1 (Residential Single Household, Low Density
District).
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#C-08003 South Towne Square Variance Staff Report 3
East: Single Household residential, zoned R-1 (Residential Single Household, Low Density
District).
West: Museum of the Rockies, annexed and zoned PLI (Public Lands and Institutions District) and
open space, not annexed and under County jurisdiction.
STAFF FINDINGS/REVIEW CRITERIA
In acting on an application for a variance, the Commission shall designate such lawful conditions as will
secure substantial protection for the public health, safety and general welfare, and shall issue written findings
setting forth factual evidence that the following criteria have been satisfied.
A. The variance will not be contrary to and will serve the public interest;
Per the attached memo from the Engineering Department, the applicant is unable to install the
required improvements to mitigate the level of service at the intersection of W. Kagy Boulevard and
S. 7th Avenue. W. Kagy Boulevard is classified as an Urban Route by the Montana Department of
Transportation (MDT). MDT has approval authority over any proposed changes or improvements
along W. Kagy Boulevard. MDT will not allow any improvements to this intersection at this time.
The level of service at this intersection could be mitigated by installing a median that restricts the
failing turning movements or by installing a signal. MDT determined that the intersection of Kagy
and 7th did not meet signal warrants and would prefer to have the intersection left unimproved until
the intersection met signal warrants. The public interest is determined to have been met by the
approval authority exercised by MDT. In their professional opinion the public interest would be
best served by the installation of a signal sometime in the future when signal warrants are met.
MDT does not concur with restricting movements at this intersection with a median. The public
interest also involves the ability of citizens to rely on the equitable and just application of the law to
all citizens. In evaluating the balance of interests necessary to determine the overall public interest it
is critical to determine that the actions of the body granting a variance are fair, balanced, and do not
provide special considerations outside of the boundaries established by law. In addition to MDT
approval to not improve the intersection at this time the variance requested meets Criteria B below.
Part of the evaluation of this question is whether all parties in similar situations would be granted the
same considerations as that ultimately decided by the governing body in this case. The answer is yes.
B. The variance is necessary, owing to conditions unique to the property, to avoid an
unnecessary hardship which would unavoidably result from the enforcement of the literal
meaning of the title;
· Hardship does not include difficulties arising from actions, or otherwise be self-
imposed, by the applicant or previous predecessors in interest, or potential for
greater financial returns; and
· Conditions unique to the property may include, but are not limited to, slope,
presence of watercourses, after the fact imposition of additional regulations on
previously lawful lots, and governmental actions outside of the owners control;
This criterion requires the evaluation of the character of the intersection for which a variance is
sought. The determination must be whether the otherwise acceptable requirements of the ordinance
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#C-08003 South Towne Square Variance Staff Report 4
are unacceptably burdensome due to the fact that the roadway in question has dual jurisdiction.
For this specific variance the dual jurisdiction (CITY/MDT) of W. Kagy Boulevard creates a unique
character that is outside of the owner’s control. The required MDT approval of improvements at
this intersection constitutes a governmental action that is outside of the owners control and as such
would constitute a hardship. A hardship occurs when MDT will not allow either a signal or the City
approved median that would restrict the failing turning movements at the intersection resulting in a
“Catch 22.” A literal enforcement of code section 18.44.060.D is not possible at this time.
C. The variance will observe the spirit of this title, including the adopted growth policy, and do
substantial justice.
The spirit of the title in requiring the provision of level of service standards is to provide safe traffic
circulation in the City that minimizes congestion and avoids excessive vehicle delays. Only one
turning movement is failing at this intersection. When the overall intersection meets signal warrants
a signal will be required to be installed. There is no threat to public health and safety. One turning
movement will experience excessive delay.
In regards to substantial justice, the City and MDT review intersections and levels of service with
different standards. In this case MDT will not allow either a signal or the City approved median that
would restrict the failing turning movements at the intersection resulting in a “Catch 22.” A literal
enforcement of code section 18.44.060.D is not possible at this time.
CONCLUSION/RECOMMENDATION
Planning and Engineering staff have reviewed the application for variance against the criteria set forth in
Section 18.66.060 of Title 18, Bozeman Municipal Code. Based on the evaluation of said criteria and
findings by the staff, staff recommends APPROVAL of the requested variance.
Should the City Commission grant the variance then the applicant is hereby on notice that compliance with
all other provisions of the Bozeman Municipal Code, which are applicable to this project, is mandatory.
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.
BECAUSE THIS APPLICATION IS FOR A VARIANCE, AND BECAUSE THE BOZEMAN
CITY COMMISSION VOTED AFFIRMATIVELY TO ASSUME JURISDICTION OVER THIS
DECISION, THE BOZEMAN CITY COMMISSION SHALL MAKE THE FINAL DECISION
ON THIS APPLICATION. THE CONCURRING VOTE OF FOUR MEMBERS OF THE
COMMISSION IS NECESSARY TO EFFECT THIS VARIANCE. THE DECISION OF THE
CITY COMMISSION MAY BE APPEALED BY AN AGGRIEVED PERSON AS SET FORTH
IN SECTION 18.66.080 OF THE BOZEMAN MUNICIPAL CODE.
Attachments: Engineering Memorandum, May 27, 2008
MDT email, April 24, 2008
Applicant’s submittal
Report Sent To: Kailo II Corp., 9350 Walker Road, Belgrade MT 59714
Allied Engineering Services, 32 Discovery Drive, Bozeman MT 59718
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