HomeMy WebLinkAboutEmpire Building Materials Storage Building, Request.pdf1
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Doug Riley, Associate Planner
Chris Saunders, Interim Planning Director
Chris Kukulski, City Manager
SUBJECT: Empire Building Materials Storage Building -
Request for modification of a previously approved variance - #C-10001
MEETING DATE: February 22, 2010
AGENDA ITEM TYPE: Action – Public Hearing
RECOMMENDATION: City Staff recommends denial of the Empire Building Materials Storage
Building – Request for modification of previously approved variance (#C-10001) to remove the
condition requiring the submittal of a waiver of right to protest creation of a Special Improvement
District (SID) for Pear Street.
BACKGROUND: On July 20, 2009, the City Commission conditionally approved the applicant’s
Site Plan and Certificate of Appropriateness (COA) to allow the construction of an 8,000 square foot
storage building on the Empire Building Materials site which is located on the corner of L and Pear
Streets. The City Commission’s approval included the granting of several variances including a
variance to the required upgrades to Pear Street adjacent to the subject property(s). This approval
included the condition that “If the variance is granted, the applicant shall provide a waiver of right to
protest creation of an SID for the improvements”. The property owners, Empire Building Materials
and Ponderosa Land Company, and representative, Thinktank Design Group, LLC, have now made
application to the City Commission for reconsideration of this condition to not require the SID waiver
for Pear Street.
The use of SID waivers is authorized by State Statute (Title 7) and has been a long standing
mechanism for allowing annexations and other development projects by the City of Bozeman, and
other jurisdictions, to proceed when improvements are not immediately required or feasible.
The requirement for SID Waivers is specifically mentioned in the City’s Annexation Policies (Policy
#1) as follows:
“Annexation Policy #1 - Annexations shall include dedication of all easements, rights-of-way for
collector and arterial streets, water rights and waivers of right to protest against the creation of
improvement districts necessary to provide the essential services for future development of the City.”
(underlining added).
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The requirement for SID Waivers is also routinely required for other development projects and
processes including subdivisions, site plans and variances when the waivers may not have been
previously acquired via annexation.
In Montana, even public agencies are not exempt from this waiver mechanism and the City even
required an SID waiver for road improvements (Moss Bridge and Spring Hill Roads) for the recently
approved Conditional Use Permit for the Water Reclamation Facility expansion.
As noted in the attached minutes from the July 20, 2009 meeting, the requirement for the SID waivers
was also specifically discussed at the hearing.
FISCAL EFFECTS: In the event it becomes necessary to improve Pear Street, lack of this waiver
could severely limit the funding options available for these improvements.
ALTERNATIVES: Section 18.02.070.B (CONDITIONS OF APPROVAL) of the Bozeman
Municipal Code states that:
“…should the owner seek material modifications (e.g. changes to the intent, nature, or scope of a
subdivision or development, or necessary improvements) to a previously approved subdivision,
development or condition of approval, the entire application shall be considered to be again opened
for review and additional conditions may be applied. Modifications of conditions of approval shall be
reviewed through the same process as the original application…”
Therefore, if the Commission deems the requested removal of the condition as a material modification,
then new conditions can be applied, even possibly requiring that Pear Street improvements be
constructed.
Attachments: Staff Report
Minutes of the July 20, 2009 City
Commission Meeting
Project Engineer Memo. to the DRC
Applicant’s Submittal Materials
Report compiled on: February 17, 2010
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#C-10001 Empire Building Materials Storage Building/Modification of Variance - Staff Report 1
CITY COMMISSION STAFF REPORT
EMPIRE BUILDING MATERIALS STORAGE BUILDING
REQUEST FOR MODIFICATION OF PREVIOUSLY APPROVED VARIANCE
FILE NO. #C-10001
Item: Variance Application #C-10001, Requested modification of a
previously approved variance at Empire Building Materials located at
801 L Street. The variance requested is to Section 18.44 of the B.M.C.
to allow the applicant not to have to provide a Special Improvements
District (S.I.D.) Waiver for improvements to Pear Street as originally
conditioned by the City Commission as part of their Storage Building
Site Plan and Certificate of Appropriateness approval. The property
is zoned M-2 (Heavy Manufacturing and Industrial District).
Owner/Applicant: Empire Building Materials
PO Box 220
Bozeman, MT 59771
Ponderosa Land Company
PO Box 1387
Bozeman, MT 59715
Representative: Thinktank Design Group, Inc.
600 N. Wallace Avenue, Loft #3
Bozeman, MT 59715
Date: City Commission Meeting: Monday, February 22, 2010 at 6:00 p.m. in
the City Commission Room, 121 N. Rouse Avenue, Bozeman,
Montana.
Report By: Doug Riley, Associate Planner
Recommendation: Denial of requested variance modification
______________________________________________________________________________
PROJECT LOCATION
The subject property is addressed as 801 L Street (located on both sides of the intersection of Pear and L
Streets) and is legally described as Parcels A, B, C of COS 539 and Tract 1 of COS #1363 in SE ¼ of
Sec. 6, T, 2 S, R6E, P.M.M. City of Bozeman, Gallatin County, Montana. The zoning designation for
said property is M-2 (Heavy Manufacturing and Industrial District) and the site is located within the I-90
Entryway Corridor. Please refer to the following vicinity map and the aerial photograph(s) supplied as
part of the packet materials.
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#C-10001 Empire Building Materials Storage Building/Modification of Variance - Staff Report 2
PROPOSAL
On July 20, 2009, the City Commission conditionally approved the applicant’s Site Plan and Certificate
of Appropriateness (COA) to allow the construction of an 8,000 square foot storage building on the
Empire Building Materials site which is located on the corner of L and Pear Street. The City
Commission’s approval included the granting of several variances to various requirements of the
Bozeman Municipal Code (B.M.C.) as well as a request to allow further development of the site without
access to municipal sewer (as noted in the attached minutes from that City Commission meeting).
The first variance that was granted was to the required upgrades to Pear Street adjacent to the subject
property(s) (Section 18.44 of the BMC). This approval included the Engineering Department and
Development Review Committee (DRC) condition that “If the variance is granted, the applicant shall
provide a waiver of right to protest creation of an SID for the improvements”.
The property owners, Empire Building Materials and Ponderosa Land Company, represented by
Thinktank Design Group, LLC, have now made application to the City Commission for reconsideration
of this condition to not require the SID waiver for Pear Street.
On January 20, 2010 the DRC reviewed the requested variance condition modification and reaffirmed its
original recommendation to require the SID waiver for Pear Street as noted in the attached memorandum
from the City Project Engineer.
RECOMMENDATION
Staff and the Development Review Committee (DRC) do not support the requested modification to the
approved variance condition.
ZONING DESIGNATION & LAND USES
The property is zoned M-2 (Heavy Manufacturing and Industrial District). The intent of the M-2 district
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#C-10001 Empire Building Materials Storage Building/Modification of Variance - Staff Report 3
is to provide for heavy manufacturing and industrial uses, servicing vocational and employment needs
for Bozeman residents.
The following zoning and land uses are adjacent to the subject property:
North: Interstate-90 - Across I-90: Un-annexed County land
South: Zoned M-2 – Railroad and Industrial uses
West: Zoned M-2 – City water booster station, trail and vacant land
East: L Street - Across L-Street: Zoned M-2 - Industrial uses and vacant
ADOPTED GROWTH POLICY DESIGNATION
The Future Land Use Map of the Bozeman 2020 Community Plan (Fig. 3-1) designates the subject
property, as well as all adjacent properties, to develop as “Industrial.” This classification provides areas
for the uses which support an urban environment such as manufacturing, warehousing, and
transportation hubs. Development within these areas is intensive and is connected to significant
transportation corridors. In order to protect the economic base and necessary services represented by
industrial uses, uses which would be detrimentally impacted by industrial activities are discouraged.
Although use in these areas is intensive, these areas are part of the larger community and shall meet
basic standards for landscaping and other site design issues and be integrated with the larger community.
In some circumstances, uses other than those typically considered industrial have been historically
present in areas which were given an industrial designation in this growth policy. Careful consideration
must be given to public policies to allow these mixed uses to coexist in harmony.
ORIGINAL VARIANCE REVIEW SECTION:
Section 18.66.060.C “Zoning Variances: Criteria for Consideration and Decision”
To provide the City Commission with staff’s position on the original variance request regarding Pear
(and L) Streets, following is an excerpt of the Staff Report that was presented to the City Commission
for consideration at the July 20, 2009 meeting. The Engineering Staff reviewed the variance request
under the required criteria and offered the comments below:
“Variance #1: Section 18.44 – Variance request to required upgrades to Pear and L Streets adjacent
to the subject property:
A. The variance will not be contrary to and will serve the public interest;
Granting of the variance will be contrary to the public interest. Unimproved streets create a
multitude of problems including but not limited to dust from both traffic and wind, mud and
gravel drag-on, drainage control, and lack of pedestrian facilities. Additionally there are added
public expenses with the grading of gravel roads, and at some point, it will likely become the
responsibility of the City to improve the street if it is not required of development.
B. The variance is necessary, owing to conditions unique to the property, to avoid an unnecessary
hardship which would unavoidably result from the enforcement of the literal meaning of the
title;
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#C-10001 Empire Building Materials Storage Building/Modification of Variance - Staff Report 4
· Hardship does not include difficulties arising from actions, or otherwise be self-
imposed, by the applicant or previous predecessors in interest, or potential for greater
financial returns; and
· Conditions unique to the property may include, but are not limited to, slope, presence
of watercourses, after the fact imposition of additional regulations on previously lawful
lots, and governmental actions outside of the owners control;
There are no conditions unique to the property which would unavoidably result in an undue
hardship if the code is enforced. Both L and Pear Streets are basically there right now, they are
just not constructed to City standards. Improvement to City standards would only require
standard construction practices for installing the gravel courses, concrete and asphalt.
C. The variance will observe the spirit of this title, including the adopted growth policy, and do
substantial justice.
The variance would not observe the spirit of the title, including the growth policy, or do
substantial justice. The spirit of the title is to insure that every development is done in such a
manner that the necessary infrastructure is installed to support it and the general public. The
lack of improved streets and pedestrian facilities does not support the intensification of the use
on the site, and as stated in 1 above, creates problems for the public and the City.
Summary: Staff does not support the variance request. Part of any development project within the
City limits includes improvement of streets in all adjacent rights of way. For local streets
such as these, it has always been the practice of the city to require the entire width be
improved (including curb and gutter on both sides) consistent with the conditions being
recommended for this project. Not improving streets creates a number of problems
including dust, mud, drainage control, and lack of pedestrian facilities. It also increases
public costs in the maintenance and possibly in the eventual improvements to the street.
The argument that the street has served the business in its current condition and will
continue to because there is very little additional traffic, does not address any of the
inherent problems and could be claimed with many developments.”
Not knowing the ultimate determination on the original variance request (i.e. that the applicant’s
not be required to upgrade Pear and L Streets) by the City Commission, staff included a
condition, which was ultimately adopted by the City Commission as part of the approval, which
read:
“If the variance is granted, the applicant shall provide a waiver of right to protest creation of an SID
for the improvements”.
This is the condition that the applicant is now appealing specifically in regards to Pear Street.
VARIANCE MODIFICATION/DISCUSSION:
The use of SID waivers is authorized by State Statute (Title 7) and has been a long standing mechanism
for allowing annexations and other development projects by the City of Bozeman, and other
jurisdictions, to proceed when improvements are not immediately required or feasible.
61
#C-10001 Empire Building Materials Storage Building/Modification of Variance - Staff Report 5
The requirement for SID Waivers is specifically mentioned in the City’s Annexation Policies (Policy #1)
as follows:
“Annexation Policy #1 - Annexations shall include dedication of all easements, rights-of-way for
collector and arterial streets, water rights and waivers of right to protest against the creation of
improvement districts necessary to provide the essential services for future development of the City.”
(underlining added).
The requirement for SID Waivers is also routinely required for other development projects and
processes including subdivisions, site plans and variances when they may not have been previously
acquired via annexation.
In Montana, even public agencies are not exempt from this waiver mechanism and the City even
required an SID waiver for road improvements (Moss Bridge and Spring Hill Roads) for the recently
approved Conditional Use Permit for the Water Reclamation Facility improvements.
Again, as noted in the attached minutes from the July 20, 2009 meeting, the requirement for the SID
waivers was also specifically discussed at the hearing.
PUBLIC COMMENT
As of the writing of this staff report, the Planning Office has received no testimony from the general
public in response to the mailings, posting or newspaper notice regarding the requested variance
modification. Any public comments received after the date of this report will be distributed to the City
Commission at the public hearing.
CONCLUSION:
BECAUSE THIS APPLICATION INCLUDES A REQUEST FOR VARIANCE
(MODIFICATION), AND BECAUSE THE BOZEMAN CITY COMMISSION PREVIOUSLY
VOTED AFFIRMATIVELY TO ASSUME JURISDICTION OVER THIS DECISION, THE
BOZEMAN CITY COMMISSION SHALL MAKE THE FINAL DECISION ON THIS
APPLICATION. THE CONCURRING VOTE OF FOUR MEMBERS OF THE COMMISSION
IS NECESSARY TO EFFECT THIS VARIANCE (MODIFICATION). THE DECISION OF
THE CITY COMMISSION MAY BE APPEALED BY AN AGGRIEVED PERSON AS SET
FORTH IN SECTION 18.66.080 OF THE BOZEMAN MUNICIPAL CODE.
Attachments: July 20, 2009 City Commission Minutes
Project Engineer Memo. to the DRC
Applicant’s Submittal Materials
Report Sent to: Empire Building Materials, PO Box 220, Bozeman, MT 59771
Ponderosa Land Company, PO Box 1387, Bozeman, MT 59715
Thinktank Design Group, Inc. (Brian Caldwell), 600 N. Wallace Avenue, Loft #3
Bozeman, MT 59715
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