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HomeMy WebLinkAbout01-12-10 Board of Adjustment Minutes BOARD OF ADJUSTMENT TUESDAY, JANUARY 12, 2010 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pomnichowski called the meeting of the Board of Adjustment to order at 6:05 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 Doug Riley, Associate Planner Cole Robertson Allyson Bristor, Associate Planner Ed Ugorowski Tara Hastie, Recording Secretary Richard Lee Tim Cooper, City Attorney JP Pomnichowski Members Absent Visitors Present Dan Curtis Chris Pope Patricia Jamison Chad Yurashak Shannon Prendergast ITEM 5. Briefing by City Attorney (As necessary.) 1. City Attorney case updates. Chairperson Pomnichowski stated the Items which required a formal motion would be completed after the arrival of the fifth Board member and the City Attorney’s updates would be held first on the agenda. City Attorney Cooper provided the Board with descriptions of recent cases of land use legislation. He noted the general clean up bill had to do with the County but there were some changes to the City regulations as well. He stated he had added House Bill 531 since it was a Bozeman bill which had received a lot of attention. He stated the subdivision review deadlines were interesting as they recognized that decisions might not be made until late at night where the final approval could not be sent out in writing until the next day. Mr. Robertson joined the BOA. Attorney Cooper stated that the Powell County palm tree case was infamous and the court had determined that the County was following their own regulations when their decision to disallow the palm trees had been reached. He added the Supreme Court had been very consistent. He stated the notoriety in the Virginia City case had been due to the permit being issued with certain conditions and the conditions had not been met; the Plaintiff had attacked the ordinance, but it made no difference as the conditions made by the governing body had not been met. He cited a Billings case where the Plaintiff argued that enforcement had been selective; the enforcement had been complaint driven and therefore had not been found to be selective. He stated the Flathead 1 Board of Adjustment Minutes – January 12, 2010 County case was interesting because the CUP was tied to the property but the Flathead County BOA had given themselves discretion to say no to the transfer of the CUP to the new owner. He stated that in the Simmons case, a hydrologist had been hired; the decision had been that relying on an environmental assessment was problematic. He stated Lewis & Clark County had included a policy as part of the conditions of approval; Bozeman would not require infrastructure but not make an exaction on the timeframe. He stated he had not included Town & Country in the description he had handed out and noted that they did not have a substantive due process claim; the findings had been included in all pertinent documentation. He stated he had included the Lake County suit and added that the case had confirmed that the application did not have to meet each and every one of the review criteria set forth in the ordinance; the findings in the Staff Report had been incorporated. Vice Chairperson Sypinski asked if the Lake County decision would also apply to Zone Map Amendment Applications. Attorney Cooper responded he was uncertain and suggested reading the case in conjunction with the case that was lost due to the public record not being clear enough. Chairperson Pomnichowski stated she understood the difference between ordinances and permits and added that updates to the ordinance had occurred for the last six or seven years; she asked what would happen if ordinances had been modified in the meantime. Attorney Cooper responded the subdivision method was very clear and the ordinance applied was the effective ordinance when the application was submitted. ITEM 2. MINUTES OF DECEMBER 8, 2009 MOTION: Vice Chairperson Sypinski moved, Mr. Lee seconded, to approve the minutes of December 8, 2009 as presented. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Robertson, Vice Chairperson Sypinski, and Mr. Ugorowski; 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. Lemongrass Thai Cabaret License CUP #Z-09233 (Riley) 290 West Kagy Boulevard, Suite C * A Conditional Use Permit Application to allow the on-premise consumption of alcohol. Associate Planner Doug Riley presented the Staff Report noting the applicant was proposing the placement of a beer and wine license for on-premise consumption. He noted the location of the rd property at Kagy Boulevard and South 3 Avenue. He noted the Sola Café in the same structure had been approved by the City Commission for a Cabaret License; the Commission had reviewed the previous proposal due to the ventilation units placed on the roof of the structure which had 2 Board of Adjustment Minutes – January 12, 2010 been determined was not mechanical equipment and would not require screening. He noted the zoning of the property was B-1 and directed the Board to the location of the suite the applicant would occupy. He directed the BOA to the floor plan and added that the tenant improvement had already been approved via the Building Permit process. He stated outdoor seating had not been approved for the proposal as all of the existing outdoor seating areas were common areas; any outdoor seating for Lemongrass Thai would need review and approval of the site as a whole and would need to be fenced per State requirements. He stated no public comment had been received for the proposal and Staff recommended approval of the project with Staff conditions. He added that the applicant was attempting to acquire an all beverage license, but the current application was for beer and wine only. Vice Chairperson Sypinski stated there was no condition in the application specifically stating that the all beverage license was not approved at this time. Planner Riley responded that the BOA could add a condition to that affect. Attorney Cooper added that there were establishments in Bozeman that had full licenses, but did not fully use them. Vice Chairperson Sypinski stated there was outdoor seating at the Sola Café and they had procured a cabaret license; he asked what would be done about the outdoor seating. Planner Riley responded the developer would likely come in with a Modification Application to amend the Final Site Plan approval to include the outdoor seating elements. Vice Chairperson Sypinski stated there was mention regarding the parking requirements for the site itself and the arrangement had not occurred as it had been planned; he asked how the parking would be addressed. Planner Riley responded individual tenant improvements had been reviewed and the developer had been put on notice that the construction of the fifth building may have been jeopardized due to the amount of parking required; he added the developer had a contract with the church to the south to provide 40 off site spaces. He stated Staff had some concerns with the distance of the 40 parking spaces and pedestrian connections from the church to the businesses. Mr. Robertson asked if backflow prevention, as required by Staff condition #6, could be altered if it was found to be an undue hardship for the applicant to upgrade. Planner Riley responded that the Water Department had intended to review each of the applications on an individual basis. Attorney Cooper responded it was his understanding that the Water Department was attempting to move forward on applications but the ordinance required all structures have backflow protection and the requirement was applied uniformly. Planner Riley added that the backflow had been reviewed already and had been found to be adequate as it exists. Chairperson Pomnichowski stated she thought it was important that the public know that alcohol would not be allowed outside of the establishment; she suggested interior signs should be included. She asked if the license was a transfer or actual purchase. Planner Riley responded the State application had indicated the license was a transfer. Shannon Prendergast addressed the BOA stating he would be happy to answer any questions. Chairperson Pomnichowski clarified that the license was a transfer. Mr. Prendergast responded she was correct. Chairperson Pomnichowski asked if the applicant would place signs indicating that alcohol could not be removed from the establishment. Mr. Prendergast responded he would include signage to that effect; he added there would be no serving of alcohol outside as it was a liability issue for him. 3 Board of Adjustment Minutes – January 12, 2010 Mr. Robertson asked if there would be any gaming on the site. Mr. Prendergast responded there would be no gaming or serving of hard alcohol as it would be a violation of the covenants. Chairperson Pomnichowski stated she had found the proposal to be in keeping with the review criteria set forth in the ordinance and found the requirements to be satisfied. She added she had called the alcohol bureau with the State to get clarification on the three types of licenses and she was satisfied that the greater scope license could allow more, but would not with the current application. Vice Chairperson Sypinski concurred that the application was in keeping with the criteria and review requirements. He stated his only concerns had been the outdoor seating and the parking and those concerns had been satisfied with Staff conditions. Mr. Lee stated he thought it would be nice to have the establishment in the neighborhood within walking distance. MOTION: Mr. Robertson moved, Vice Chairperson Sypinski seconded, to add a condition of approval that interior signage prohibiting patrons from leaving the establishment with alcohol be included. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Robertson, Vice Chairperson Sypinski, and Mr. Ugorowski; those voting nay being none. MOTION: Vice Chairperson Sypinski moved, Mr. Lee seconded, to approve Lemongrass Thai Cabaret License CUP #Z-09233 with Staff conditions and the addition of a condition that interior signage prohibiting patrons from leaving the establishment with alcohol be included. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Robertson, Vice Chairperson Sypinski, and Mr. Ugorowski; those voting nay being none. 2. Bar 9 Liquor License CUP #Z-09221 (Bristor) 311 East Main Street * A Conditional Use Permit Application to allow the change in use to a restaurant (bar) and the on premise consumption of alcohol. Associate Planner Allyson Bristor introduced the project and stated the subject property’s location noting a unique condition on the site was that Bozeman Creek ran underneath the building; she stated the applicant had intended outdoor seating be included along the creek, but a COA with Deviations application would have to be submitted and approved due to the required Creek Watercourse setback. She stated all types of alcohol (All-Beverage) would be allowed on the premises and added that even though the “All-Beverage” license permits gaming, none was proposed. To establish gaming on the site would need to be reviewed and approved through a separate application. She noted future expansion of the use would also have to be reviewed and approved through a separate application. She noted the second floor was currently vacant, but office use is proposed. She stated the property had 26.8 spaces available and were only required to provide 16 spaces. She stated the proposal had been noticed on site and in the paper with no public comment received. She stated Staff was supportive of the proposal as submitted with Staff conditions of approval and finds the project to meet the CUP criteria as stated. 4 Board of Adjustment Minutes – January 12, 2010 Vice Chairperson Sypinski asked the historical significance of the building. Planner Bristor responded the building was within the Main Street Historic District and some of the historic features included the three entrances on Main Street, second floor window locations, and retractable awnings. Vice Chairperson Sypinski stated he was a little concerned with modifications to the exterior of the structure. Planner Bristor responded that no exterior changes had been proposed with the current application and a previous application had been approved for the repair of a rear wall damaged in the March 2009 explosion. Vice Chairperson Sypinski asked if outdoor seating at the front of the building would be reviewed. Planner Bristor responded the Director of Public Service would review any outdoor seating proposed in the front as there was a certain distance it would need to be located from the building. She added there might not be adequate room for seating in the front and that the applicant had expressed an intention to provide the outdoor seating at the rear of the building. Mr. Ugorowski asked if egress at the rear of the structure would be impeded by outdoor seating. Planner Bristor responded the DRC had not expressed concern regarding the rear entrance and Staff condition #1 had been included to address access between the two interior portions (307 & 311 East Main Street). Chairperson Pomnichowski asked what would be located in the vacant space at the front of the building. Planner Bristor responded the applicant had no tenant for the front section and had wanted to see how well the bar/restaurant would do prior to expanding to that space. Chairperson Pomnichowski stated the liquor license would be applied to two separate addresses and asked how the CUP would be affected if a different tenant were to occupy the front space. Attorney Cooper responded he thought the issue was covered by Staff condition #8. Chairperson Pomnichowski stated the outdoor seating had been depicted on nearly every rendering even though it had not been allowed. Planner Bristor responded the seating as depicted was an existing patio and new construction for the purpose of enlarging the outdoor seating area would not be allowed with the approval of this application. She added that the BOA could modify the language of condition #2 if the Board felt the description should be more specific to the location of the outdoor seating. Attorney Cooper suggested Staff condition #2 could change to “any expansion of this use or facility, or additional outdoor seating to the rear of the existing patio along the creek, is not permitted with this Conditional Use Permit Application”. Chairperson Pomnichowski concurred that the language should be corrected in the Staff conditions of approval to provide more clarity. Mr. Robertson asked if there was a condition of approval requiring fencing around the outdoor seating area. Planner Bristor responded there was not a condition of approval specifically addressing the outdoor seating area as it already existed. Chad Yurashak addressed the BOA. He stated he had intended to submit a future application to request seating in the watercourse setback and people would not be allowed on the existing patio and bridge until those features were made safer. He stated a gate would be installed to prevent access to the bridge until the safety concerns had been addressed. He stated he would provide a few gaming machines, but would not be providing a casino as it was not allowed in that zoning 5 Board of Adjustment Minutes – January 12, 2010 designation. He stated his goal was to expand into the vacant space in the future, but there would not be a business included other than a bar or restaurant. Mr. Lee asked the applicant’s plans for the second story of the building. Mr. Yurashak stated he only leased the space in 307 & 311 East Main Street and did not lease the second floor but there had been discussion of putting offices in that location. Mr. Ugorowski asked for clarification of where the gaming and pool tables would be if the applicant did not own the second floor. Mr. Yurashak responded there was a mezzanine that would contain his gaming machines and pool table. Chairperson Pomnichowski stated the requirements for the creek were very regimented and suggested the applicant contact the Planning Department and the Army Corp of Engineers prior to any construction in that location. Chairperson Pomnichowski stated that under the project description, the application indicated a beer and wine license only and the Staff Report had indicated no gaming. She suggested the application should be amended and brought back to the BOA once those items had been addressed. Chairperson Pomnichowski opened and continued the item to the next meeting of the BOA to allow time for the applicant to include gaming machines in the proposal and for Staff to include the gaming machines in the Staff Report. Mr. Ugorowski asked if the BOA could approve the application as presented so the applicant could begin construction and the language could be modified and presented at the next meeting. Planner Bristor responded that there had been no mention of the proposed gaming machines to Staff and added that the applicant had already been granted a Building Permit for tenant improvements so the continuance wouldn’t necessarily hold up the process. Chairperson Pomnichowski opened and continued the public comment portion of the meeting. ITEM 6. Briefing by Planning Staff (As necessary.) There were no items forthcoming. ITEM 7. NEW BUSINESS Mr. Ugorowski stated he was previously intending to swap terms with Mr. Curtis and he had found out that swapping terms was not an option; he added he now intended to finish his three year term. ITEM 8. F.Y.I. There were no items forthcoming. 6 Board of Adjustment Minutes – January 12, 2010 ITEM 9.ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 7:31 p.m. ______________________________ JP Pomnichowski, Chairperson City of Bozeman Board of Adjustment 7 Board of Adjustment Minutes – January 12, 2010