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HomeMy WebLinkAbout060909 Board of Adjustment MinutesBOARD OF ADJUSTMENT TUESDAY, JUNE 9, 2009 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pro Tem Sypinski called the meeting of the Board of Adjustment to order at 6:00 p.m. in the Commission Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana and directed the secretary to record the attendance. Members Present Staff Present Ed Sypinski Brian Krueger, Associate Planner Ed Ugorowski Tara Hastie, Recording Secretary Dan Curtis Greg Sullivan, City Attorney Patricia Jamison Richard Lee Members Absent Visitors Present Cole Robertson JP Pomnichowski Commission Liaison ITEM 2. MINUTES OF MAY 12, 2009 MOTION: Mr. Curtis moved, Mr. Lee seconded, to approve the minutes of May 12, 2009 as presented. The motion carried 5-0. Those voting aye being Chairperson Pro Tem Sypinski, Mr. Lee, Mr. Curtis, Mr. Ugorowski, and Ms. Jamison; those voting nay being none. ITEM 3. PUBLIC COMMENT – (15 – 20 minutes) {Limited to any public matter, within the jurisdiction of the Board Of Adjustment, not on this agenda. Three-minute time limit per speaker.} There was no public comment forthcoming. ITEM 4. PROJECT REVIEW 1. Hilton Garden Inn/Laurie’s Diner Cabaret License CUP #Z-09058 (Krueger) 2023 Commerce Way * A Conditional Use Permit Application to allow the on-premise consumption of beer/wine. Associate Planner Brian Krueger presented the Staff Report noting the location of the site was within an existing building on Commerce Way in the Hilton Garden Inn which was constructed in 2004 and located within a B-2 zoning designation. He stated Staff had noted everything had been constructed per the approved Final Site Plan and was in general conformance with the Zoning Ordinance. He stated parking had been factored into the original approval to provide for a restaurant use in the building. He directed the Board to the interior seating area and noted they would also have outdoor seating. He noted no public comment had been received and the application of basic code provisions and conditions had been included by Staff for the proposal; he noted any complaints would denote a possible revocation of the proposed use. Ms. Jamison asked if beer and wine could be served any time. Planner Krueger responded there were limitations in State Statute to the serving of beer and wine and the City would defer to the State to regulate hours of operation. Mr. Curtis asked if there was outdoor seating for the restaurant. Planner Krueger responded that there was fenced, outdoor seating and noted that location on the site plan. He added the plan submitted to the State had been for the interior seating and stated he did not know if the applicant would be able to serve alcohol to the outdoor seating area. Mr. Curtis asked if the fenced seating area was gated. Planner Krueger responded he thought a gate had been included. Chairperson Pro Tem Sypinski asked if the applicant had plans for expansion. Planner Krueger responded they had not indicated they had plans for expansion at this time. Mr. Lee suggested the recommendations of approval be sent to the applicant along with the approval. The Board concurred. Chairperson Pro Tem Sypinski stated he saw a problem with the applicant not attending the meeting to answer questions that had arisen and would likely vote in opposition to the proposal, but would defer to the City Attorney prior to his decision. Mr. Sullivan responded that the applicant was not required to attend and the Board was charged with reviewing only the items that had been submitted for the proposal. He added that the submittal materials and Staff Report were the items on which the Board’s decision must be made unless the Board the information provided did not contain enough supporting detail to allow the Board to come to a decision on the proposal and noted the project could be opened and continued if more information were necessary. He stated Staff findings would need to be included in the approval for the project. Mr. Curtis stated he had found that Staff’s presentation indicated the proposal met the criteria for issuing approval of the project and he was supportive of the proposal as presented regardless of the applicant being in attendance. MOTION: Ms. Jamison moved, Mr. Ugorowski seconded, to approve Hilton Garden Inn/Laurie’s Diner Cabaret License CUP #Z-09058 with Staff conditions. The motion carried 5-0. Those voting aye being Chairperson Pro Tem Sypinski, Mr. Lee, Mr. Curtis, Mr. Ugorowski, and Ms. Jamison; those voting nay being none. ITEM 5. Briefing by City Attorney Greg Sullivan Chairperson Pro Tem Sypinski asked if the Staff conditions would need to be read individually or if it could be shortened up. Mr. Sullivan responded Staff findings would be the basis of the approval and would need to be specifically included as such. He explained that ex-parte communications or other forms of abusive discretion could negate the Board’s decision at the District Court level; he noted only the facts and criteria listed in the ordinance were that on which the Board could base their decisions. Mr. Lee asked if District Court could turn over their decision if someone had constructed something illegally and they denied their next application based on their previous actions. Mr. Sullivan responded that if the facts that were germane to the review criteria the Board could base their decision on those facts. He noted if the Board were against Staff findings, they would need to go through the conditions and clearly articulate why they were opposed and to which condition. Chairperson Pro Tem Sypinski stated the Board had done their homework and had been doing a great job reviewing proposals before them. Mr. Sullivan stated one of the criteria was whether the size of the site would be adequate for the use; with the applicant saying it was large enough while neighbors were saying the space was not adequate enough and suggested abusive discretion could be applied if the Board listened only to the applicant while the neighbors had presented evidence to the contrary. Chairperson Pro Tem Sypinski stated he had felt one applicant had not demonstrated hardship. Mr. Sullivan responded that a Variance request placed the burden of proof on the applicant. Chairperson Pro Tem Sypinski stated he was watching the County Planning meeting and noticed the applicant had been sworn in; he asked if that was standard procedure. Mr. Sullivan responded it was standard procedure for family transfer. Mr. Sullivan stated impropriety would be good to discuss; he added impropriety would reflect on the City and the community. He stated ex-parte communications should be avoided, but the appearance of fairness should be maintained. He noted the main thing was for the public to understand the Board was for their benefit and the protection of their rights and property values. He stated Board behavior would have to reflect no favoritism or bias and as Board members were in the position of a judge, they would need to behave like one. Chairperson Pro Tem Sypinski stated the most difficult part of ex-parte communications was site visits where the applicant may be. Mr. Sullivan suggested letting the applicant know of Board member status and suggesting comments be made to Planning Staff in writing or invite the applicant to attend the meeting. He noted that if the conversation could not be avoided, the Board member would need to announce the content of the conversation at the beginning of the meeting for the proposal and note that their decision would be based only on the information contained in the submittal materials/Staff report and would not be swayed by the ex-parte communication. He suggested that identifying an applicant as a friend/acquaintance and referencing their project prior to the meeting would be unacceptable and the Board member should excuse themselves from that review due to a conflict of interest. Mr. Curtis clarified that even friendship would be ex-parte communications. Mr. Sullivan responded it would be up to the individual Board members as they were capable of being non-bias, but the appearance of fairness would require that Board member to abstain from the project’s review. Chairperson Pro Tem Sypinski asked Mr. Sullivan what should be done if a fellow Board member was seen as bias by another Board member. Mr. Sullivan responded the Board member accused should excuse themselves, but he should be notified if that situation arose. He added the community would be more trusting of the Board if members recognized the need for them to abstain from reviewing a proposal due to conflict of interest. Ms. Jamison stated she needed to give Chairperson Pomnichowski kudos and added that Ms. Pomnichowski had noted many of the items under discussion with the City Attorney at the first BOA meeting. Chairperson Pro Tem Sypinksi asked if the number of cabaret licenses approved was a reasonable question for Staff/applicant. Mr. Lee responded the State regulated the number of cabaret licenses issued and, to some extent, the locations of approved cabaret licenses. Mr. Sullivan responded the review criteria from the ordinance used to evaluate the application were the items the Board could question and those questions could only be asked to provide answers to those criteria. ITEM 6. Briefing by Planning Staff (As necessary.) Briefing by Staff was unnecessary at this time. ITEM 7. ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 6:47 p.m. ______________________________ Ed Sypinski, Chairperson Pro Tem City of Bozeman Board of Adjustment