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HomeMy WebLinkAbout02-09-10 Board of Adjustment Minutes BOARD OF ADJUSTMENT TUESDAY, FEBRUARY 9, 2010 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Pomnichowski 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 Allyson Bristor, Associate Planner Cole Robertson Tim Cooper, City Attorney Ed Ugorowski Tara Hastie, Recording Secretary Richard Lee JP Pomnichowski Dan Curtis Members Absent Visitors Present Patricia Jamison Ben Fjare Chad Yurashak Lowell Springer Rosemary Lee Lloyd Mandeville Chris Mehl ITEM 2. MINUTES OF JANUARY 12, 2010 MOTION: Vice Chairperson Sypinski moved, Mr. Lee seconded, to approve the minutes of January 12, 2010 as presented. The motion carried 5-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Curtis, 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. Bar 9 Liquor License CUP #Z-09221(Continued from 1/12/10.) (Bristor) 311 East Main Street * A Conditional Use Permit Application to allow the change in use to a restaurant (bar) and to allow an “All Beverage License” which includes gaming. 1 Board of Adjustment Minutes – February 9, 2010 Associate Planner Allyson Bristor introduced the project and noted it had been opened and continued from the January 12, 2010 meeting of the BOA. She clarified that the applicant was proposing to use an “All Beverage” license and noted that only two of the existing Bozeman Annex addresses would have the CUP applied to them. She stated Staff had modified the language in the conditions of approval with regard to installing outdoor seating along the creek at the rear of the structure. She noted the application had been modified to show gaming machines would be included in the establishment as allowed by the All Beverage license. She stated the bar and seating areas would be on the first and mezzanine levels. She stated no more than five gaming machines would be included on the mezzanine. She stated the second phase of the project would be to expand the bar/restaurant use into the vacant space and the third phase of the project would be the expansion of the outdoor seating area to the rear of the structure. She directed the BOA to a floor plan of the building and noted the locations of seating areas, gaming machines, and pool table. She stated there were no parking issues on the site and the parking requirements had been met. She stated a revised public notice had been issued and no public comment had been received. She stated condition of approval #10 had been added to address the gaming machines, but the rest of the conditions remained the same with the exception of the modified language the BOA had suggested. She stated Staff was supportive of the proposal as presented with Staff conditions of approval. Vice Chairperson Sypinski asked if there would be other conditions of approval if the applicant wanted to provide entertainment in their establishment. Planner Bristor responded she couldn’t foresee a need for further conditions of approval. Chairperson Pomnichowski stated that condition of approval #2 had been modified and asked if the language Staff had included was too vague. Planner Bristor responded she was willing to have the condition better worded. She further explained how an expansion of the existing deck area would also trigger a Deviation; though replacement of the existing deck in the same spot would not trigger the Deviation process. Chairperson Pomnichowski asked how Staff would know if the decking would be larger. Planner Bristor responded the current plans did not reflect anything other than existing. Chairperson Pomnichowski suggested the measurement of the deck be referenced. She asked why the number of gaming machines had not been included in the conditions of approval. Planner Bristor responded the application proposal was for five machines only and that Staff felt the only restriction required was that the establishment could not have more than 15 machines (no casino designation). Chairperson Pomnichowski asked Staff to modify condition of approval #10 to include the maximum number of allowable machines to be five. Mr. Robertson joined the BOA. Attorney Cooper advised caution on any further conditions of approval related to gaming; the City was limited in regulation of gambling. He stated the ordinance was fine as it currently read and changes would occur in the future, but the City’s effort to limit the number of machines was possibly an unlawful regulation. Chairperson Pomnichowski responded condition of approval #10 could remain as written. Mr. Lee asked for clarification of whether or not outdoor seating would be allowed on the existing deck. Planner Bristor responded the intent was to allow outdoor seating on the existing deck. 2 Board of Adjustment Minutes – February 9, 2010 Chad Yurashak addressed the BOA. He stated he did not have anything to add, but would be happy to answer questions. Chairperson Pomnichowski asked if Mr. Yurashak was the one that had submitted the application materials to the Planning Office. Mr. Yurashak responded he had not been completely involved in the submittal and Lowell Springer of Springer Group Architects had been dealing with the Planning Office. Chairperson Pomnichowski asked to speak to Mr. Springer. Lowell Springer addressed the BOA. Chairperson Pomnichowski asked Mr. Springer to explain why the application had been modified and had needed to be reviewed twice. Mr. Springer apologized and explained that he had been under the mistaken impression that there would not be any gaming machines. Chairperson Pomnichowski asked Mr. Springer if he had discussed the gaming machines with Staff at any time. Mr. Springer responded he had not discussed the gaming machines and it was an oversight on his part. He added that he was sorry the BOA had to review the application twice and that the building was unique due to the creek that ran underneath. Vice Chairperson Sypinski asked if Mr. Springer had a timeline on when the outdoor seating would be addressed. Mr. Springer responded they would attempt to move on with the future phases as soon as possible, but there would be many aspects, including the economy, that would factor into the completion of the project. Attorney Cooper stated there could be no signage referring to the business as a casino. Chairperson Pomnichowski asked the depth of the back deck. Mr. Springer responded he thought it was roughly 10 ½ feet; he added they anticipated the future seating would be at grass level instead of deck level. Vice Chairperson Sypinski asked if there would be fencing around the outdoor seating area. Mr. Springer responded he was uncertain and the applicant would need to spend a lot of time with Planning Staff regarding the design of the outdoor seating. Chairperson Pomnichowski opened the public comment portion of the meeting. Seeing none forthcoming, the public comment period was closed. Chairperson Pomnichowski asked Planner Bristor if she had crafted modified language for the outdoor seating condition of approval. Planner Bristor responded she had modified the language to read “the expansion or new installation of outdoor seating inside the watercourse setback shall not be permitted with the approval of this application”. Chairperson Pomnichowski asked if the applicant’s statement of 10 ½ feet in depth could be included in the language. Chairperson Pomnichowski suggested the language “Existing outdoor seating on the existing 10’ 6” rear deck shall not be expanded, nor shall new establishment of outdoor seating occur within the Bozeman Creek watercourse setback with the approval of this Conditional Use Permit application”. 3 Board of Adjustment Minutes – February 9, 2010 Mr. Mehl suggested the size should not be included in case the deck needed replaced and would need to be enlarged. Planner Bristor concurred with Mr. Mehl. Mr. Ugorowski added that he had measured the depth of the deck and the distance was 10’ 6”. Vice Chairperson Sypinski stated he found the application to be in keeping with Staff conditions of approval and the review criteria set forth in the ordinance. Chairperson Pomnichowski stated she concurred with Staff findings and she found the application to be in keeping with the review criteria as set forth in the ordinance. MOTION : Vice Chairperson Sypinski moved, Mr. Ugorwoski seconded, to modify condition of approval #2 to include the language “Existing outdoor seating on the existing 10’ 6” rear deck shall not be expanded, nor shall new establishment of outdoor seating occur within the Bozeman Creek watercourse setback with the approval of this Conditional Use Permit application”. The motion carried 6-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Curtis, Vice Chairperson Sypinski, Mr. Robertson, and Mr. Ugorowski; those voting nay being none. MOTION : Vice Chairperson Sypinski moved, Mr. Lee seconded, to approve Bar 9 Liquor License CUP #Z-09221 with Staff conditions and modified Staff condition of approval #2. The motion carried 6-0. Those voting aye being Chairperson Pomnichowski, Mr. Lee, Mr. Curtis, Vice Chairperson Sypinski, Mr. Robertson, and Mr. Ugorowski; those voting nay being none. Chairperson Pomnichowski reiterated the importance of the BOA declaring concurrence with Staff findings and conditions of approval. ITEM 5. Briefing by City Attorney (As necessary.) Attorney Cooper stated he had an opportunity to speak with the Chair regarding some of the legal issues and questions that might come up. He stated that he had not had time to prepare a new presentation and directed the BOA to a previous presentation he had made. He noted the presentation he had handed out had been given to the City Commission and would help to distinguish some of the actions of local government bodies. He added the handout included a cheat sheet that could be kept at the dais. He stated he had also included a paper from the local government council. He directed the BOA to a case from Flathead County that had been decided by the Supreme Court; he had included the case as it was specifically regarding the Board of Adjustment and the importance of making findings. He stated another interesting issue was what authority the BOA had; in the Flathead County case instance, the BOA had attempted to approve a use that was not allowed by the zoning regulations in place. He stated if things were allowed that were outside of the ordinance without the Variance procedure it would instead be a Zone Code Amendment; a rewrite of the code, beyond the BOA’s authority to do so. ITEM 6. Briefing by Planning Staff (As necessary.) Planner Bristor stated January 30, 2010 was the effective date for the most recent batch of UDO Amendments. She stated downtown parking reductions were already beneficial to the community. She stated another issue the BOA should be aware of would be the F&H Building 4 Board of Adjustment Minutes – February 9, 2010 and the Rocking R reconstruction; she stated Staff was requesting the Commission review the proposal instead of the BOA as it directly tied to the procurement of Federal funds. Chairperson Pomnichowski stated it was quite enlightening that Mr. Springer had apologized for his oversight, but suggested Staff should be more thorough during their review of the application. Planner Bristor responded she had mentioned the incident to Staff and would do so again, but small application mistakes were common. Vice Chairperson Sypinski asked Staff to make particular reference to parking reductions in individual Staff Reports. ITEM 7. NEW BUSINESS Mr. Ugorowski stated it was his last meeting with the BOA and Mr. Curtis would be taking over his term on the Board. Chairperson Pomnichowski added that applications were still being taken for appointments to the Board and recommended current members contact anyone they knew who might be interested in applying. ITEM 8. F.Y.I. There were no items forthcoming. ITEM 9.ADJOURNMENT There being no further business before the BOA, the meeting was adjourned at 6:51 p.m. ______________________________ JP Pomnichowski, Chairperson City of Bozeman Board of Adjustment 5 Board of Adjustment Minutes – February 9, 2010