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HomeMy WebLinkAbout05-13-08 Board of Adjustment MinutesBOARD OF ADJUSTMENT TUESDAY, MAY 13, 2008 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pro Tem Saunders called the meeting of the Board of Adjustment to order at 6:05 p.m. in the downstairs City Commission Meeting room, 411 East Main Street, Bozeman, Montana and directed the secretary to record the attendance. Members Present Staff Present Patricia Jamison Tim Cooper, Assistant City Attorney JP Pomnichowski Chris Saunders, Assistant Planning Director Richard Lee Tara Hastie, Recording Secretary Dan Curtis Ed Ugorowski Ed Sypinski Members Absent David Wright Visitors Present Assistant Director Saunders introduced himself and Assistant City Attorney Tim Cooper to the Board members and explained introductory procedures. He noted how the training would proceed and that officers would need to be elected to conduct the public meeting. ITEM 2. 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.} Assistant Director Saunders explained that an opportunity for public comment was required to be included on this agenda. There was no public available for comment at this time. ITEM 3. ELECTION OF OFFICERS MOTION: Mr. Sypinski moved to nominate Mr. Ugorowski as Chairperson, Ms. Jamison seconded. The motion failed 1-5 with Mr. Sypinski voting in favor. Chairperson Pomnichowski moved to nominate herself, Mr. Ugorowski seconded. Chairperson Pomnichowski stated she had a background in the conduct of meetings (Roberts Rules, procedures, etc.) and had offered her services in that regard. Mr. Ugorowski added that he thought Chairperson Pomnichowski was better qualified for the Chairperson position. The motion carried 5-1 with Mr. Sypinski voting against. Ms. Jamison moved to nominate Mr. Ugorowski for Vice Chairperson, Mr. Sypinski seconded. The motion carried 6-0. ITEM 4. BOARD ORIENTATION Tim Cooper, Assistant City Attorney Assistant City Attorney Cooper explained his role with regard to the BOA and noted that five City Attorney positions had been authorized for the City of Bozeman. He explained the difference between legislative and quasi-judicial acts with regard to ex parte contacts and noted he saw the Board as almost exclusively quasi-judicial. Assistant City Attorney Cooper stated he thought a handout he had prepared regarding “takings claim” provided a good outline on how to review land use applications and how to stay within the general rule of being reasonable. He stated the BOA helped alleviate the possibility of injustice in the land use regulations; adding not everything could be anticipated in code drafting and there would be a time when someone’s situation would be unfair after following the letter of the law. He noted the BOA should safeguard the rights of property owners; noting the zoning disputes could be kept out of the courts and eliminate the need for constant amendments to the zoning ordinance. He noted if an application came in under the standard zoning designation and the use was not allowed or some other decision had been made that was not liked, the BOA would be the first level of redress for a perceived injustice. He noted four of seven members would be a quorum and supplied the Board with sections of Bozeman Municipal Code that pertained to the BOA. He noted that ex parte contacts (discussion about an application between the applicant (or his representative) or member of the public and a Board member) were not allowable and gave an example of what might happen in that instance. He noted that every meeting would need to be publicly noticed and there had to be a record of decisions. He stated the applicant had a right to know what information the Board was being given and vice versa. He directed the Board’s attention to land use requirements and the open meeting requirements with regard to public participation. He noted if a new rule was proposed to be passed the public would require the opportunity to be involved. He noted there was a lot of discretion kept by the City for Site Plan review; adding that three criteria of Montana law governed granting a Variance Application and he explained those criteria. Assistant City Attorney Cooper stated that the conditions of approval for a Variance Application should only go as far as necessary and no further; he noted there would be a scope and the BOA should only grant relief to the extent needed and not more than necessary. He noted that the Board would be asked to be judges and the power to grant the request would decide a specific individual case, not all cases; he noted an amortization schedule had been adopted for signage at one time and required non-conforming issues, including signage, would need to be brought into compliance. Chairperson Pomnichowski asked Assistant City Attorney Cooper to address conflicts of interest. Assistant City Attorney Cooper responded that the Bozeman Municipal Code contained conduct ordinances that had recently been updated and suggested keeping conflict of interest as simple as possible by avoiding proposals with a personal or financial interest. He noted that sometimes conflicts were looked at if there was an incompatible situation (such as a City employee being a member of the City Commission). Mr. Lee asked if the BOA could apply limits to an applicant’s request. Assistant City Attorney Cooper responded limits could be imposed by the BOA (such as duration) through conditions of approval and noted there were other ways to impose limits. Assistant Director Saunders noted they would discuss those limits later in the meeting. Ms. Jamison asked if site visits with introductions would be considered ex parte contact. Assistant City Attorney Cooper responded site visits could cause difficulties but information from that site visit could be introduced to the BOA prior to the public meeting as long as all parties involved were presented with the same information. Chairperson Pomnichowski stated she had always gone to the site and had assumed, since public notice was on site, she was visiting the site as member of the public. She added that she does not engage the site owner, applicant, workers, or public in conversation while at the site, but instead directs comments to the public meeting of the BOA. Assistant City Attorney Cooper responded if a member of the BOA was visiting the site and was approached by the owner/ applicant/ representative, etc., the information from the site could be disclosed on record at the scheduled meeting of the BOA for the project. He noted influence or input outside of the process was not ex parte contact if there was not an official application, but was considered a method by which a BOA member could be influenced or provide input for a potential application. Chairperson Pomnichowski noted the BOA would appreciate legal counsel attending the meetings if there was a possibility that the decision of the Board would be appealed to the District Court. Assistant City Attorney Cooper responded he would attend whenever possible and would be available to assist the BOA as needed; noting City Planning Staff would be available at the time of the meeting and would discuss with him any contentious items. Chris Saunders, Assistant Director of Planning and Community Development Assistant Director Saunders directed the BOA’s attention to a Power Point presentation regarding planning and zoning procedures. He summarized the BOA’s duties, citing the Bozeman Municipal Code and that Title 18 was pertinent to subdivision and zoning. He noted the four specific duties assigned to the BOA (Zoning Variances, Deviations, Site Plans with Deviations or Variances, and Conditional Use Permits). He explained that zoning is a means to an end and a process that would constantly be evaluated and altered. He explained the fundamental purposes of the BOA and noted why zoning designations had been established. Assistant Director Saunders stated the conflicting rights of property owners would be involved if one proposal created an opportunity to negatively impact another property. He stated a lot of what the UDO covered was procedural and addressed various inalienable rights, right of participation, due process, eminent domain, etc. He stated in 1929 a model statute was made public for the creation of zoning districts and nearly every state used that model for the establishment of zoning. Assistant Director Saunders noted the subdivision and zoning regulations for Bozeman had been combined as both purposes were very similar but had procedural differences. He noted infrastructure, neighborhood character, and value would become considerations for the BOA in their review of proposals. He noted the different types of zoning (Euclidian, Performance, and Form Based) and explained the differences between those types; noting Bozeman contained all three of those types in one form or another. He noted how Principal, Conditional, and Accessory Uses were defined in the UDO. Assistant Director Saunders noted the locations of Overlay Districts within the City and explained that special standards had been adopted for those locations. He explained the review standards for uses, physical performance, and compatibility and that the ordinance left room for discretion and flexibility. He stated one of the core zoning components was the allowable building envelope; adding there had been increasing interest in using a “build to” line instead of a setback line to provide for presentation of the building to the street. Assistant Director Saunders stated the review criteria allowed an opportunity to bring forward a better alternative and presented the Board with a review process flow chart to illustrate the method by which projects would be reviewed and by which advisory bodies. He noted the BOA would receive a Staff Report that would outline Staff’s recommendations and if conditions were added by the BOA they would need to include the justifications for those conditions. Mr. Lee asked if the BOA would have appropriate time to review the project materials for the Board. Assistant Director Saunders responded they would have appropriate time as the BOA would receive packets on the Wednesday or Thursday prior to the meeting and could go to the Planning Office to review the materials further in advance if they desired. Assistant Director Saunders noted four votes would be necessary for approval of proposals (quorum). He stated the City Commission had delegated the responsibility of project review to the BOA and could reclaim the jurisdiction of any proposal at any time. Assistant Director Saunders noted Deviation requests in the historic area and entryway corridors would be reviewed against defined review standards; adding that conditions could be imposed on the approval to address all the review standards at once. He stated the Site Plan review qualitative standards had been included to allow for flexibility in the UDO parameters and with a CUP an opportunity would be left for the applicant to demonstrate that a Conditional Use Permit would work well where proposed. Assistant Director Saunders noted that the law allowed an emergency zoning ordinance to be put in place after an advertised public hearing (~7 days), but emergency zoning would not likely occur. Chairperson Pomnichowski asked for clarification regarding relaxation requests. Assistant Director Saunders responded relaxations were reviewed in conjunction with PUD’s and would not be seen by the BOA. Assistant Director Saunders presented the BOA with an example process of a requested Deviation in the City; noting the BOA would review the proposal. He stated Informal Applications could be seen by the BOA and would be open for public comment, but discussions would be non-binding. Assistant Director Saunders explained the SP/COA review process and which advisory boards/commissions would typically review that application type; noting other review agencies, such as the WRB, DRB, or ADR Staff could also have jurisdiction over the proposal. He clarified the Final Site Plan process after Preliminary Site Plan approval. Assistant Director Saunders presented a photo of North 7th Avenue prior to the institution of the sign ordinance; he noted the original ordinance was put into effect for Main Street in the 1880’s. Assistant Director Saunders explained the process for submitting an application for a building permit after Planning review and approval; adding that progress on projects was monitored throughout Planning, Engineering, and Building Department review processes. Ms. Jamison asked the filing fee for review of an application by the BOA. Assistant Director Saunders responded various application fees were required for different types of applications. He noted that one of the requirements was for the applicant to submit a copy of their proposal to the Neighborhood Coordinator and a certificate of the submission was included with those applications where necessary. He directed the BOA’s attention to the City of Bozeman website and illustrated how to navigate the site to the Planning and GIS information. Chairperson Pomnichowski reiterated what Assistant Director Saunders and Assistant City Attorney Cooper had presented to the Board and clarified Roberts Rules of Order and public meeting procedures for the benefit of the new Board members. ITEM 5. ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 8:57 p.m. ________________________________ J.P. Pomnichowski, Chairperson City of Bozeman Board of Adjustment