HomeMy WebLinkAboutDiscussion of Completion of Sidewalk Improvements.pdf Report Complied On November 10, 2009
REPORT TO: Honorable Mayor & City Commission
FROM: Dave Skelton, Senior Planner
Andrew Epple, Planning Director
Chris Kukulski, City Manager
SUBJECT: Subdivision Sidewalks
Section 18.74.030.B.2 “Completion of Subdivision Sidewalks”
MEETING DATE: November 16, 2009
AGENDA MEETING ITEM: Public Meeting Agenda Item
RECOMMENDATION: That the City Commission direct City Staff to proceed with implementing
the following policy to complete subdivision sidewalk improvements:
Option One: Order in subdivision sidewalks under specific existing circumstances where more than
75% of the subdivisions lots in a particular block have been sold and developed, and
exceed the three-year time period to complete subdivision sidewalks.
Option Two: On a case-by-case basis, direct developers to request a variance to Section 18.74.030.B.2
“Completion of Sidewalk Improvements”, BMC for an extension to the time-period to
complete related subdivision sidewalks. Each applicant requesting a variance would be
evaluated against specific criteria prepared by the Planning Office that would offer the
City Commission findings based upon the evidence presented in each case for
justification to grant said variance. See the proposed criteria listed on page six of the
staff report.
Option Three: Combine options one and two above as may be merited on a case-by-case basis.
BACKGROUND: On May 4, 2009 the Bozeman City Commission held a roundtable meeting with the
City Engineer’s Office, Planning Office, and local developers to discus the matter of completing
subdivision sidewalks within the three-year time period of filing a final subdivision plat. Based on the
roundtable discussion, City staff was directed to bring back for consideration by the City Commission
alternatives to resolve completion of subdivision improvements.
This topic stems from that section of the City of Bozeman Uniform Development Ordinance that states
the completion of subdivision sidewalks will occur within a prescribed timeframe upon the filing of a
subdivision plat (i.e., three years), and reads as follows:
Commission Memorandum
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Report Complied On November 10, 2009
18.74.030.B.2 “Completion of Sidewalk Improvements
“City standard sidewalks (including a concrete sidewalk section through all private drive
approaches) shall be constructed on all public and private street frontages prior to occupancy of any
structure on individual lots. Should a subdivider choose not to install all sidewalks prior to final plat, an
improvements agreement shall be entered into with the City of Bozeman guaranteeing the completion of
all sidewalks within the subdivision within a three-year period. The developer shall supply the City of
Bozeman with an acceptable method of security equal to 150 percent of these remaining sidewalk
improvements.”
Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who
has not constructed said sidewalk shall, without further notice, construct within 30 days, said sidewalk
for their lot(s), regardless of whether other improvements have been made upon the lot.
The Department of Planning and Community Development has evaluated the matter of completing
subdivision sidewalk improvements as required by municipal code, methods of implementation to
complete the improvements in a reasonable time period, as well as tools of enforcement; and as a result
staff has provided the City Commission with findings for consideration as outlined in the attached staff
report.
FISCAL EFFECTS: Fiscal impacts are undetermined at this time.
ALTERNATIVES: As suggested by the City Commission
Attachments: Staff Report with Attachments
Rocky Mountain Bank Correspondence, November 3, 2009
Big Sky Western Bank Correspondence, September 10 and 15, 2009
Baxter Meadows Subdivision, Phase 3, Sidewalk Exhibit
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 1
CITY COMMISSION STAFF REPORT
SUBDIVISION SIDEWALKS – SECTION 18.74.030.B.2, BMC
Item: Subdivision Sidewalks --- Consideration for appropriate methods in
implementing the completion of subdivision sidewalks not installed
by the third anniversary of filing the final subdivision plat(s).
Regulatory Standard: Section 18.74.030.B.2 “Completion of Sidewalk Improvements”
Date/Time: Bozeman City Commission on Monday, November 16, 2009, at 6:00
P.M., in the Commission Room, City Hall, 121 North Rouse Avenue,
Bozeman, Montana.
Report By: Dave Skelton, Senior Planner
Department of Planning and Community Development
Staff Recommendation: Direct City staff to proceed with implementing the recommended
policy to complete required subdivision sidewalk improvements.
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RECOMMENDATION:
The City of Bozeman’s Department of Planning and Community Development, in conjunction with the
City Engineer’s Office, City Staff, and Development Review Committee have considered the matter of
addressing the completion of subdivision sidewalks; and as a result, recommends that the City
Commission direct City Staff to proceed with implementing the following policy to complete
subdivision sidewalk improvements:
Option One: Order in subdivision sidewalks under specific existing circumstances where more than
75% of the subdivisions lots in a particular block have been sold and developed, and
exceed the three-year time period to complete subdivision sidewalks.
Option Two: On a case-by-case basis, direct developers to request a variance to Section
18.74.030.B.2 “Completion of Sidewalk Improvements”, BMC for an extension to the
time-period to complete related subdivision sidewalks. Each applicant requesting a
variance would be evaluated against specific criteria prepared by the Planning Office
that would offer the City Commission findings based upon the evidence presented in
each case for justification to grant said variance. See the proposed criteria listed on
page six of the staff report.
Option Three: Combine options one and two above as may be merited on a case-by-case basis.
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 2
BACKGROUND
On May 4, 2009 the Bozeman City Commission held a roundtable meeting with the City Engineer’s
Office, Planning Office, and local developers to discus the matter of completing subdivision sidewalks
within the three-year time period of filing a final subdivision plat. Based on the roundtable
discussion, City staff was directed to bring back for consideration by the City Commission alternatives
to resolve completion of required subdivision sidewalk improvements.
This topic stems from that section of the City of Bozeman Uniform Development Ordinance that states
the completion of subdivision sidewalks will occur within a prescribed timeframe upon the filing of a
subdivision plat (i.e., three years), and reads as follows:
18.74.030.B.2 “Completion of Sidewalk Improvements
“City standard sidewalks (including a concrete sidewalk section through all private drive
approaches) shall be constructed on all public and private street frontages prior to occupancy of any
structure on individual lots. Should a subdivider choose not to install all sidewalks prior to final plat,
an improvements agreement shall be entered into with the City of Bozeman guaranteeing the
completion of all sidewalks within the subdivision within a three-year period. The developer shall
supply the City of Bozeman with an acceptable method of security equal to 150 percent of these
remaining sidewalk improvements.”
b. Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot
owner who has not constructed said sidewalk shall, without further notice, construct within 30
days, said sidewalk for their lot(s), regardless of whether other improvements have been made
upon the lot.
IMPLEMENTATION ISSUES:
The point of discussion on subdivision sidewalks stems from the increased difficulty of a subdivider or
developer to follow through with the installation of subdivision sidewalks within the prescribed three-
year time-period. This is in part driven by the current economy, a large inventory of undeveloped lots
on the market, and a down-swing in residential and commercial development. What the community is
experiencing is a large inventory of residential subdivisions with the majority of the subdivision lots
sitting vacant and undeveloped. As a result, developers are finding that the financial guarantee to
complete the improvements may not, or will not, be renewed annually for the three-year time period,
or lending institutions are foreclosing on current construction loans.
Currently, at least three major subdivisions in the community have been quit-claimed back to the
lending institution in-lieu of foreclosure on the subdivider or developer (i.e., Flanders Creek
Subdivision, Baxter Meadows Subdivision, Phase 3A, and Meadow Creek Subdivision, Phase 1).
Two to three additional major subdivisions are currently facing the same scenario. A slower building
rate for residential development has caused lending institutions to take claim of the remaining lots of
record previously owned by the developer not realizing the inherit responsibility to complete the
remaining sidewalk improvements. See attached list of some of the more recent major residential
subdivisions with related sidewalks still pending – Attachment “A”.
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 3
IMPLEMENTATION TOOLS:
As a result of discussions with City staff, City Engineer’s Office and members of the Development
Review Committee, the Planning Office has discussed various methods of implementation to consider
in completing subdivision sidewalks. This includes a number of methods identified in the Bozeman
Municipal Code that may be used as a tool to complete the installation of subdivision sidewalks.
Options considered include the following:
1. Continue with the current three-year time period to complete sidewalks - This might work
for new subdivisions in the future, but does not solve the current issue with developers
needing to complete subdivision improvements in the present economy.
2. Install subdivision sidewalks at the same time as the street improvements – This might be
an effective scenario with new subdivisions and would require a text amendment to
municipal code, but does not improve the current state of subdivision sidewalks in existing
subdivisions.
3. Consider a “blanket variance” for the community - This could be considered an over-
reaction to the current economy, realizing that in time the building industry will come full
cycle and residential building will continue to improve. However, this method is also not
reciprocal in form, would not be able to address the conditions with present subdivision
sidewalks, and simply would not legally work. Variances must be specific to the site
benefiting from the variance.
4. Adopt a text amendment that addresses the time-period for installation of subdivision
sidewalks - As with the “blanket variance” this could not be perceived as a practical tool
as it does not address the current state of existing subdivision sidewalks since ordinance
changes can not apply retroactively.
5. Initiate one or more Special Improvement Districts to complete sidewalks – Staff does not
view this as a viable solution as the Finance Department reminds us that bonds need to be
marketable in order to get buyers, so the City will have the money for construction. Bonds
are marketable when they are assured that annual debt payments will be made on time.
Because we are in this position with sidewalks primarily due to the economy and lack of
local buyers/homeowners, it is unlikely that the lot owner (a bank or a developer without
many resources?) will make the SID payments on time. Diversity of ownership within an
SID is also important to help assure payment. Most of the areas where sidewalks are
missing are owned by only a few owners.
6. Investigate the allocation of urban funds (i.e., Urban Priority List) in conjunction with
Montana Department of Transportation funding - This is not a possible solution as urban
funds can not be allocated solely for the installation of sidewalks. Funding must be
allocated as part of an urban street improvement (streets, curb and gutter, boulevard
lighting, signalization, etc) for arterial or collector roads, and not for local streets. The
great majority of uncompleted sidewalks are located on local streets and are therefore
ineligible in any circumstance.
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 4
7. Order in sidewalks similar to the current policy under City of Bozeman Resolution No.
2965 – City of Bozeman Sidewalk Policy - Staff believes this is an effective tool under the
current resolution that is implemented by the City Engineer’s Office (see attached memo
and resolution from Andy Kerr –Attachment “B”). In this case, where 75% or more of the
lots in a particular block in a subdivision have been sold, regardless if it is developed or
vacant, said subdivision sidewalks would be ordered in.
8. Apply for a variance to Section 18.74.030.B.2 to extend the time period to complete
sidewalks - This concept is a viable and effective method as long as it is taken on a case-
by-case basis approach with each subdivision making the effort to address the need for
completing key pedestrian connections in the immediate area as an interim measure.
METHODS OF ENFORCEMENT TO COMPLETE SIDEWALKS:
As with staff’s discussions with City Staff, City Engineer’s Office and the Development Review
Committee on evaluating methods or tools to complete subdivision sidewalks, the following methods
of enforcement have also considered:
1. Civil violation and municipal court – The City has the authority to pursue enforcement of
its ordinances through the court system as described in Chapter 18.64, BMC. However,
this is consumptive of scarce legal department resources. The judge can order compliance
if the City prevailed in the complaint. However, if the developer is already in bankruptcy
or foreclosure the effectiveness of this approach is reduced. As a result, this does not
appear to be a practical solution.
2. Lien on property after installation of sidewalk – Administratively this is not seen as cost
effective for the City. Collection on sidewalk improvements would be low on the priority
list for compensation based on other liens in any foreclosure or bankruptcy proceeding.
3. File a “No Build” restriction on subdivision lots until sidewalk issue resolved - This has
been an effective tool where lending institutions who have foreclosed on developers now
realize improvements are pending prior to issuance of building permits. In order to place
these subdivision lots on the market for sale without the restriction the lending institution
has had to execute a new Improvements Agreement and financial guarantee in order to
comply with the regulatory standard. Most recently Flanders Creek Subdivision.
4. Notice of Violation - Although this method might not be as effective as the “No Build”
restriction it does place the current landowner (i.e.., developer or lending institution) on
notice that there are violations of record that must be addressed before building permits
may be issued. This also advises any future purchasers of the outstanding issue prior to
purchase. Keep in mind that although a financial guarantee may no longer be liquidable,
the developer has executed an Improvements Agreement that is still a binding agreement
with the City of Bozeman; as a result, placing the subdivision in violation of municipal
code.
5. Call in financial guarantee if still valid. - This method is an effective tool as long as the
developer is still financially sound. However, with recent subdivisions that have been
filed, staff is finding difficulties such as: 1) letters of credit have expired and not replaced,
2) letters of credit have not been automatically renewed annually for up to three years, 3)
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 5
the lending institution will not honor the letter of credit because the subdivider is
insolvent, or 4) the lending institution has foreclosed on the subdivider and has taken deed
to the remaining subdivision lots of the developer.
6. Order in sidewalks – The municipal code authorizes the City Commission to order
sidewalks to be installed anywhere within the City. The City has exercised this authority
repeatedly over the years. This option is most suited to circumstances where there are
comparatively few missing gaps in an otherwise developed sidewalk network and in high
priority areas. If the owner of the lot does not comply, the City has the ability to install
the sidewalk and then add the cost of the installation to the regular municipal assessments.
This places the charge at a much higher priority for repayment in any legal proceeding.
The City Commission would need to adopt criteria for when sidewalks would be ordered
in. The ordering in of sidewalks could be used in conjunction with other actions.
ANALYSIS
Implementing an interim method that guarantees the completion of subdivision sidewalks within a
reasonable time frame is somewhat complex as it brings to discussion a number of questions. First
and foremost is what is reasonable? Under the current regulatory standards it’s within three years of
the filing of the final plat. However, this standard has changed a number of times now since the late
1990’s when previously the sidewalks were to be installed with the rest of the subdivision street
improvements.
Secondly, what are the expectations of the developer, future residents, and the community as a whole?
The new home owner in a subdivision anticipates adequate pedestrian circulation immediately with
occupancy of their new dwelling and the community emphasizes the need for good connectivity for
public trails and pedestrian/bicycle corridors in the surrounding area. With the current economy, the
developer’s expectations include struggling with staying the course financially to complete subdivision
improvements during a time where the building industry and market is very slow.
If the three-year window to complete subdivision sidewalks is not reasonable for the developer based
on the current economy, one could also argue that sidewalks are necessary for those new home owners
in a subdivision, as well as the surrounding development. As a result, simple reasoning might suggest
not compromising the intent and sprit of the regulatory standards to solve the problem, but instead find
a common ground that achieves an interim measure to complete subdivision sidewalks as the economy
rebounds. In other words, don’t over react too quickly to the current economy with an overhaul of the
regulatory standards; the community will survive and will come full cycle, and good conscious
developers will survive to continue with the infill of our community. Nonetheless, the community
must recognize that the growth of the community is unlikely to see the pace of the past decade, and
sensitivity should be given to recognizing a new trend in the tempo of residential development.
With this in mind staff believes it to be reasonable that, on a case-by-case basis, developers would
request a variance to Section 18.74.030.B.2 “Completion of Sidewalk Improvements”, BMC for an
extension to the time-period to complete related subdivision sidewalks. This does not mean that the
variance request is to fully eliminate the requirement of completing sidewalks, but instead a request for
an extension to the current three-year time period for completion. Each application requesting a
variance would be evaluated against specific criteria that would offer the City Commission findings
based upon the evidence presented in each case for justification to grant the variance as is required by
state law.
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Subdivision Sidewalks – Section 18.74.030.B.2 - Staff Report 6
Subdivision variances are required to meet four criteria as set forth in Section 18.66.070, BMC. These
are:
1. The granting of the variance will not be detrimental to the public health, safety, or general
welfare, or be injurious to other adjoining properties;
2. Because of the particular physical surroundings, shape or topographical conditions of the
specific property involved, an undue hardship to the owners would result if strict
interpretation of this title is enforced;
3. The variance will not cause a substantial increase in public costs; and
4. The variance will not, in any manner, place the subdivision in nonconformance with any
other provisions of this title or with the City’s growth policy.
In addition to the four criteria set forth in Section 18.66.070, each application requesting a variance
would include a written narrative and applicable exhibit(s) responding to the following criteria
suggested by staff:
a. What is the total the number of residential lots in the subdivision?
b. What percent of subdivision lots that has been sold are no longer under your ownership?
c. What percent of subdivision lots that have been sold are still vacant? What percent are
occupied by a residential structure(s)?
d. Identify those subdivision blocks that have more than 50% of the lots occupied by a
residential structure(s).
e. Identify all adjoining subdivisions, public parklands, commercial centers, and public trail
corridors within one-half mile of the subdivision.
f. Describe what public sidewalks and/or public trials within the interior of the subdivision you
would complete to provide effective connectivity within the interior of the subdivision, as
well as adjoining subdivisions, parklands, neighborhood commercial nodes, commercial
centers, and public trail systems.
g. What is the extended time period that you are requesting to complete the required subdivision
sidewalks?
h. Provide at a minimum at least one colored exhibit illustrating the subdivision being
considered, along with the number of lots that have been sold, those have been developed
with residential structures, those that are still vacant, and the remaining lots still under your
ownership.
Based on each individual response to the above information presented with each variance request; the
Planning Office would have the opportunity to consider favorable recommendations to the City
Commission based upon the evidence presented in each case for justification to grant said variance.
The submitted materials would allow the applicant to demonstrate the ability to provide sufficient
interim pedestrian circulation based on the number of subdivision lots developed and provide
connectivity with adjoining development. The subdivision variance process will follow the same steps
laid out in state law and local ordinances for new subdivisions.
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