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HomeMy WebLinkAboutBozeman Brewery Appeal Application #C-08001 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Andy Epple, Director of Planning and Community Development Chris A. Kukulski, City Manager SUBJECT: Bozeman Brewery Appeal Application #C-08001, an Appeal of an Administrative Code Determination, made pursuant to Section 18.66.010 C.5. BMC, which seeks to overturn the Director of Planning’s determination that Section 18.44.060 D. Level of [Street] Service Standards may generally be applied to “off-site road improvements.” MEETING DATE: Monday, April 21, 2008 @ 6:00 p.m. RECOMMENDATION: That the City Commission deny this appeal application on the grounds that the City’s practice of applying level of street service standards to off-site road improvements is fundamental to the orderly development of the City and critical to protection of public health and safety. BACKGROUND: The Bozeman Brewery project is a mixed use, urban redevelopment project located at 801 and 803 North Wallace Avenue in the Northeast Historic Mixed Use Zoning District. The project consists of the demolition/rehabilitation of the historic Lehrkind Brewery building and construction of 16,900 square feet of office space and 39 residential condominium units. The project was reviewed extensively through the Site Plan Review process, and gained Preliminary Approval from the City Commission on August 20, 2007. Condition Number 18 of Preliminary Approval of the Bozeman Brewery project states: “A detailed Traffic Study Report for the proposed development, including a level of service evaluation, shall be provided.” A traffic study report was subsequently turned in by the applicant, which indicated that the intersection at Rouse and Peach operates at a level of service below “D” and that this development will further impact the intersection. Section 18.44.060 D. BMC states: “Under no conditions will less than level of service ‘D’ be accepted” with regard to street improvement standards. Applying this Code provision essentially restricts any new development in the area that will further impact this intersection until improvements are made. In this case, the Bozeman Brewery project may not proceed until intersection improvements to Rouse and Peach are made, either by the applicant, a group of property owners in the area, the City or the State. Only the State is actively moving ahead with plans to improve North Rouse, including intersection improvements at Peach. But MDT is not expected to move forward with any actual construction on the project before 2011 at the earliest. This time frame does not work well for the applicants. Because the applicant has not mitigated the impacts their development proposal will have on a failing intersection, their application for Final Site Plan approval has been denied by staff. This Appeal Application is one of two the applicant has filed in this case. (The other “companion” appeal, Application Number C-08002, will be heard separately, immediately after this hearing is concluded.) In this Appeal, the applicant requests “…an appeal of the administrative interpretation regarding application of UDO section 18.44.060 D. to the final site plan, seeking a determination that it does not apply in this case,” i.e., that the City has no authority to apply level of service standards to off-site intersection improvements. Their arguments are four-fold: 1) No provision of the UDO requires developers to make off-site road improvements; 2) The intersection at Peach Street and North Rouse Avenue is already failing, and it would be inequitable to force them, whose development will have 0.6% impact on the intersection, to correct existing failing conditions not of their making; 3) The improvements the City are contemplating are extremely costly and out of proportion with the scale of the development and level of impacts; and 4) As a practical matter, requiring a developer to proceed with intersection improvements at this time is inefficient since MDT will be making the improvements as part of the larger North Rouse project, scheduled for 2011 or beyond. Staff would respond to each of these points as follows: 1) Numerous provisions of the UDO require that off-site traffic impacts be evaluated and mitigated in conjunction with development proposals. Section 18.34.090 5., Under Site Plan Review Criteria, references “The impact of the proposal on the existing and anticipated traffic and parking conditions.” In section 18.34.090 6., also under Site Plan Review Criteria, the need to address the design of the vehicular circulation systems “both within the site and between properties and activities with the neighborhood area” is set forth, as is adequate connection and integration of the vehicular transportation system “in adjacent developments and general community.” As mentioned earlier, Section 18.44.060 D., under Street Improvement Standards, establishes that “…under no conditions will less than level of service “D” be accepted.” Section 18.78.080 B.9., by reference, requires Traffic Impact Studies include evaluation of “All arterial-arterial, collector-collector and arterial-collector intersections within one mile of the site.” Clearly, these Code provisions require that City officials consider impacts to off-site intersections, and further require mitigation if the level of service is less than “D.” In fact, the City has invoked these provisions on numerous occasions in the past, and held up development proposals until necessary improvements were completed. Projects such as Laurel Glen, Harvest Creek, Traditions and Flanders Creek, and the Knolls, among others, have all been subject to these provisions. 2) The plain language in the Code stating that “under no conditions will less than level of service “D” be accepted” does not give staff or the Commission much leeway in interpretation. Any level of additional impact to an already failing intersection is unacceptable according to the Code. The proper avenue for relief from Code requirements that applicants feel are not achievable is to seek a variance. 3) The City is not putting the burden of making the costly improvements to the intersection at Peach and Rouse entirely on the applicant. They can seek methods of funding the improvements through other means (creation of SID, or inclusion on Impact Fee Capital Improvement program, for instance), or wait until others complete the project. In protecting public health and safety, knowingly allowing a new development to further aggravate an already failing intersection, even to a slight degree, would be contrary to the Code. 4) The earliest MDT has said their project will proceed is 2011, and it is likely to be considerably farther out in time than that. If the Bozeman Brewery project is allowed to proceed without the intersection improvements being made, we would have an extended period of time where more traffic is put through the intersection before a basic safety is resolved. Again, that would be contrary to Code. UNRESOLVED ISSUES: This is one of two Appeal Applications which have been filed by the owners of this project regarding the need for intersection improvements at the intersection of Peach Street and North Rouse Avenue. Both appeals must be acted upon by the Commission. ALTERNATIVES: As suggested by the City Commission. FISCAL IMPACTS: Approval of this Appeal Application would have significant impacts on the City’s CIP budget, since it would take away the City’s ability to require failing intersections to be upgraded prior to further development occurring in a given area. The current practice ensures, to some extent, that “development pays its own way.” Overturning this long standing policy and practice would result in the citizens of Bozeman having to bear more of the costs of development. Respectfully submitted, ___________________________________ ___________________________________ Andy Epple, Director of Planning Chris A. Kukulski, City Manager Attachment(s): Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Andy Epple, Director of Planning and Community Development Chris A. Kukulski, City Manager SUBJECT: Bozeman Brewery Appeal Application #C-08002, an Appeal of an Administrative Project Decision, made pursuant to Section 18.66.010 C.5. BMC, which seeks to overturn the Director of Planning’s decision to disapprove the Final Site Plan for the Bozeman Brewery project based on application of Section 18.44.060 D. Level of [Street] Service Standards to said project, finding that said service standards are not met at the off-site intersection location of North Rouse Avenue and Peach Street. MEETING DATE: Monday, April 21, 2008 @ 6:00 p.m. RECOMMENDATION: That the City Commission deny this appeal application on the grounds that the City’s practice of applying level of street service standards to off-site road improvements is fundamental to the orderly development of the City and critical to protection of public health and safety, and that denying a Final Site Plan based on further impacts to an already failing is appropriate. BACKGROUND: The Bozeman Brewery project is a mixed use, urban redevelopment project located at 801 and 803 North Wallace Avenue in the Northeast Historic Mixed Use Zoning District. The project consists of the demolition/rehabilitation of the historic Lehrkind Brewery building and construction of 16,900 square feet of office space and 39 residential condominium units. The project was reviewed extensively through the Site Plan Review process, and gained Preliminary Approval from the City Commission on August 20, 2007. Condition Number 18 of Preliminary Approval of the Bozeman Brewery project states: “A detailed Traffic Study Report for the proposed development, including a level of service evaluation, shall be provided.” A traffic study report was subsequently turned in by the applicant, which indicated that the intersection at Rouse and Peach operates at a level of service below “D” and that this development will further impact the intersection. Section 18.44.060 D. BMC states: “Under no conditions will less than level of service ‘D’ be accepted” with regard to street improvement standards. Applying this Code provision essentially restricts any new development in the area that will further impact this intersection until improvements are made. In this case, the Bozeman Brewery project may not proceed until intersection improvements to Rouse and Peach are made, either by the applicant, a group of property owners in the area, the City or the State. Only the State is actively moving ahead with plans to improve North Rouse, including intersection improvements at Peach. But MDT is not expected to move forward with any actual construction on the project before 2011 at the earliest. This time frame does not work well for the applicants. Because the applicant has not mitigated the impacts their development proposal will have on a failing intersection, their application for Final Site Plan approval has been denied by staff. This Appeal Application is one of two the applicant has filed in this case. (The other “companion” appeal, Application Number C-08001, will have already been heard by the time this application is up for hearing.) In this Appeal, the applicant requests “…an appeal of what will be the resulting decision on the final site plan – an approval subject to compliance with the provision or a denial of the plan – and a request that the final site plan be approved by the City Commission without the condition.” In other words, the applicant asks that, in the event the Commission finds that level of service standards for off-site intersection improvements can be invoked in Site Plan reviews (the subject of the preceding hearing), the Commission overturn staff’s decision to deny the Final Site Plan application for the Bozeman Brewery project. Their arguments are three-fold: 1) The intersection at Peach Street and North Rouse Avenue is already failing, and it would be inequitable to force them, whose development will have 0.6% impact on the intersection, to correct existing failing conditions not of their making; 2) The improvements the City are contemplating are extremely costly and out of proportion with the scale of the development and level of impacts; and 3) As a practical matter, requiring a developer to proceed with intersection improvements at this time is inefficient since MDT will be making the improvements as part of the larger North Rouse project, scheduled for 2011 or beyond. Staff would respond to each of these points as follows: 1) The plain language in the Code stating that “under no conditions will less than level of service “D” be accepted” does not give staff or the Commission much leeway in interpretation. Any level of additional impact to an already failing intersection is unacceptable according to the Code. The proper avenue for relief from Code requirements that applicants feel are not achievable is to seek a variance. 2) The City is not putting the burden of making the costly improvements to the intersection at Peach and Rouse entirely on the applicant. They can seek methods of funding the improvements through other means (creation of SID, or inclusion on Impact Fee Capital Improvement program, for instance), or wait until others complete the project. In protecting public health and safety, knowingly allowing a new development to further contribute traffic to an already failing intersection, even to a slight degree, would be contrary to the Code. 3) The earliest MDT has said their project will proceed is 2011, and it is likely to be considerably farther out in time than that. If the Bozeman Brewery project is allowed to proceed without the intersection improvements being made, we would have an extended period of time where more traffic is put through the intersection before a basic safety issue is resolved. Again, that would be contrary to Code. UNRESOLVED ISSUES: This is one of two Appeal Applications which have been filed by the owners of the Bozeman Brewery project regarding the need for intersection improvements at the intersection of Peach Street and North Rouse Avenue. Both appeals must be acted upon by the Commission. Staff believes this application would be better addressed through the filing of a variance request seeking relief from compliance with Section 18.44.060 D. rather than through the filing of this appeal application. Variance applications give staff and the Commission (or Board of Adjustment) the opportunity to consider unique circumstances in granting relaxation of Code provisions, rather than just waiving regulatory requirements. ALTERNATIVES: As suggested by the City Commission. FISCAL IMPACTS: Approval of this Appeal Application could have significant impacts on the City’s CIP budget, since we would expect others to seek a waiver from the Level of Service standard requirements of the Code. The current practice of requiring infrastructure improvements to be concurrent with development proposals helps ensure, to some extent, that “development pays its own way.” Overturning this long standing policy and practice would result in the citizens of Bozeman having to bear more of the costs of development. Respectfully submitted, ___________________________________ ___________________________________ Andy Epple, Director of Planning Chris A. Kukulski, City Manager Attachment(s): MEMORANDUM April 9, 2008 To: Andy Epple, Planning Director From: Dustin Johnson, Project Engineer Re: Bozeman Brewery – Project traffic engineering summary Major Site Plans/Subdivisions with potential traffic impacts to Northeast Bozeman: August, 2005 – Staff review of Freight Building/Mill Street Lofts (Traffic study required, no deficiencies identified, no intersections with Rouse Avenue were included in the traffic study). October, 2005 – Staff review of Legends II subdivision (Traffic study required, deficiencies identified at intersection of Rouse and Griffin, signal installed). November 2005 – Staff review of Northside Development (Traffic study required, deficiencies identified at intersection of Rouse and Oak, signal installed). August 2007 – Staff review of Bozeman Brewery (Traffic study required, deficiencies identified at intersection of Rouse and Peach). Engineering Summary: The proposed Bozeman Brewery Site plan identified the project will have 16,900 square feet of single office space and 39 townhouse units. During the DRC review of the Brewery staff required a full traffic study. The traffic study estimated there will be 425 total weekday trip ends at this development at full build-out. Given the location, size, and use of this proposed site staff felt it had the potential to impact surrounding traffic patterns. The traffic study focused on the Level of Service (LOS) of three major intersections that could be impacted by this development, Rouse and Tamarack, Rouse and Peach, and Tamarack and Wallace. In the study the intersection of Rouse and Peach was identified as suffering from a failing level of service. UDO section 18.44.060.D states “under no conditions will less than level of service ‘D’ be accepted.” This provision restricts any further development in the area that will further impact this intersection until improvements are made. During the informal review of this development, in November of 2006, neighbors raised concerns that traffic from the site could further impact an already existing traffic problem for North Wallace Avenue. A condition was drafted that stated: Wallace Avenue is currently registered in the traffic calming program. The developer will need to work with the North East Neighborhood Association (NENA) in contributing to the ongoing traffic calming measures being implemented and to minimize the traffic impacts on Wallace Avenue. In order to minimize traffic impacts on Wallace Avenue, traffic from this development would have to be routed to Rouse Avenue (the nearest Principal Arterial). The two streets connecting this development to Rouse Avenue are Tamarack Street to the north and Peach Street to the south. Provided that the traffic study indicated that there were deficiencies at the intersection of Rouse and Peach, and the study met the warrant analysis for the City and MDT to justify a signal and/or other intersection improvements, it would indicate that the traffic study for this development was reasonable. The argument that it is unjust to restrict development at this site because of surrounding intersection deficiencies, but allow a previous development, the Freight Building/Mill Street Lofts, to avoid these restrictions is invalid. The Freight Building Site Plan was reviewed in 2005. Not soon after the application of the Freight Building neighbors starting expressing concern over new developments that would utilize Wallace Ave. With new developments in the Northeast section of town, such as the Northside development, Legends II subdivision, and the Bozeman Brewery staff started taking a closer look at potential areas of congestion and deficiency. The findings of staff are supported by the UDO, MDT, and the applicants own traffic study. If the applicant feels the restriction creates an excessive burden based on the size of their development they have the right to request a variance and plead their case before the City Commission. The requirements and conditions set forth in previous developments in the area have no bearing on this project. Please refer to the Bound Copy of The Bozeman Brewery Applicant Submittal    A digital version is also included on your Digital Packet CD. Thanks!