HomeMy WebLinkAboutAudrey's Pizza Cabaret License Conditional Use Permit, Z-10018.pdf
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Keri Thorpe, Assistant Planner
Chris Saunders, Interim Planning Director
Chris Kukulski, City Manager
SUBJECT: Audrey’s Pizza Cabaret License Conditional Use Permit application with
Certificate of Appropriateness and request for variances (#Z-10018).
MEETING DATE: April 12, 2010
AGENDA ITEM TYPE: Action Item
RECOMMENDATION: Staff recommends
1) denial of the Audrey’s Pizza request for variance (#Z-10018) to Section 18.44, BMC for
required improvements to N. Rouse Avenue and the north side of E. Peach Street
adjacent to subject property including curb, gutter, sidewalk and drive access
improvements;
2) denial of the Audrey’s Pizza request for variance (#Z-10018) to Section 18.46.020.J,
BMC for required parking lot curbing; and
3) approval of the Audrey’s Pizza Cabaret License Conditional Use Permit/Certificate of
Appropriateness (#Z-10018) as conditioned by staff.
BACKGROUND: Audrey’s Pizza is located on a site previously occupied by a convenience
store and gas station. In January of 2009, an informal review (file #I-09001) by the Development
Review Committee (DRC) was conducted. The site had several existing non-conformities. Staff
made the determination that the new use would require site plan level review and that the
existing non-conformities must be corrected. The applicant was informed that the site currently
does not meet several current City standards. With this informal application, staff strongly
recommended closing the Rouse Avenue access to reduce non-conformity (the non-conformity
being insufficient separation between the drive access and an intersection on an arterial street)
and to provide additional parking. Subsequent to this informal review, the Planning Director
invoked his authority to review the project under Section, 18.34.050, BMC, Sketch Plan Review.
Following this determination by the Planning Department, the applicant submitted an application
for a Sketch Plan/Re-Use/ COA in February of 2009 (file #Z-09027). Staff viewed the project as
the adaptive re-use of a site, which previously had a more intensive use (convenience store/ gas
station). Approval for this application was granted in March 12, 2009.
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The current proposal is to add a cabaret license (no gaming) for on-site consumption of beer and
wine to the existing business. A Cabaret License is recognized as a use that requires additional
responsibility. As such, the request for a Conditional Use Permit invokes additional site plan
level review criteria by City staff including the DRC. On March 17th, 2010 the DRC
recommended conditional approval of the CUP/COA. The conditions and code provisions are
included in this staff report. Subsequent to receiving the list of DRC conditions and code
provisions, the applicant requested two variances for 1) Section 18.44, BMC – improvements to
N. Rouse Avenue and the north side of Peach Street 2) Section 18.46.020.J, BMC – to install
perimeter curbing in the parking lot. With this request, the applicant also responded to staff
conditions and removed the request for picnic tables in the watercourse setback area and instead
requests the placement of benches in alternate locations.
Unresolved issues
1) A non-compliant light was mounted on the utility pole near the garbage enclosure
without approval from staff. The applicant has requested he be able to keep this light. A
variance to Section 18.42.150, “Lighting”, was not specifically requested. Staff had
hoped to resolve this issue prior to the public hearing. See “Lighting” comments on pages
12-11 of the staff report.
2) Hours of operation – see staff findings under review criteria 3 on pages 6-7
FISCAL EFFECTS: Should the variance to Section 18.44, “Transportation”, be granted, the
cost of completing these improvements will be passed to the community or the state and federal
government if the N. Rouse Avenue Corridor improvements are completed by the Montana
Department of Transportation. Funding for this MDT project is uncertain. Use of City Street
Maintenance Funds for N. Rouse Avenue improvements is not appropriate. Use of City Street
Maintenance Funds for the improvements to the north side of Peach is appropriate for installation
of curb but not sidewalk. Currently there is no Street Maintenance Fund allocation for curb
improvements to E. Peach Street. The Northeast Urban Renewal Board has not indicated a
willingness to assist with the funding of any of these improvements. Should the variance to
Section 18.46.020.J, “Parking lot curbing”, be granted, no fiscal effects are foreseen. Approval of
the Cabaret License Conditional Use Permit will result in collection of additional fees. $400 per
year is the annual licensing fee for a beer and wine cabaret license.
ALTERNATIVES: As suggested by the City Commission.
Attachments: Applicant’s submittal (4 parts)
Staff Report
Engineering memo response to Variance Requests
Report compiled on: April 7, 2010
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CITY COMMISSION STAFF REPORT
AUDREY’S PIZZA CABARET CUP/COA/WITH VARIANCES FILE NO. #Z-10018
#Z-10018 Audrey’s Pizza Cabaret CUP/COA/VAR Staff Report
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Item: Conditional Use Permit Application with Certificate of
Appropriateness and request for Variances, file #Z-10018, to allow a
cabaret (on premise consumption of beer and wine) license on the
property located at 401 E. Peach Street, known as Audrey’s Pizza,
which is zoned HMU-Historic Mixed Use District and is located within
the Neighborhood Conservation Overlay District and the Northeast
Urban Renewal District.
Property Owner: Great Northwest Construction, Inc.
1929 Bozeman Trail
Bozeman, MT 59715
Applicant: Same as above
Date: City Commission Hearing: Monday, April 12, 2010 at 6:00 p.m.
Commission Meeting Room, Bozeman City Hall, 121 North Rouse
Avenue, Bozeman, Montana.
Report By: Keri Thorpe, Assistant Planner
Recommendation: Conditional Approval
____________________________________________________________________________________
PROPOSAL
Conditional Use Permit (CUP) #Z-10018 is a request to allow a cabaret (beer and wine) license on the
property located at 401 E. Peach Street, the current site of the Audrey‟s Pizza. The project is located
within the Neighborhood Conservation Overlay District and is subject to the review criteria of Section
18.28 of the Bozeman Municipal Code (BMC). A Certificate of Appropriateness (COA) must be
approved for any exterior modifications, including signage, lighting or other site modifications. A
request for a Conditional Use Permit requires a site plan level review as stated in 18.34.030 and is
subject to the review criteria of Section 18.34.090 and additional considerations listed under 18.34.100,
BMC. The applicant has requested variances with this CUP/COA application so the Criteria for
Consideration and Decision listed under Section 18.66.060, BMC must be addressed.
BACKGROUND
Audrey‟s Pizza is located on a site previously occupied by a convenience store and gas station. In
January of 2009, an informal review (file #I-09001) by the Development Review Committee (DRC) was
conducted. The site had several existing non-conformities. Staff made the determination that the new use
would require site plan level review and that the existing non-conformities must be corrected. In lieu of
correcting the non-conformities, the applicant was informed he could request deviations. In addition to
addressing the existing non-conformities the applicant was informed that the site currently does not meet
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several current City standards and was specifically told that sidewalk installation would be required on
Peach Street and that the parking lot would require interior curbing. With this informal application, staff
strongly recommended closing the Rouse Avenue access to reduce non-conformity (the non-conformity
being insufficient separation between the drive access and an intersection on an arterial street) and to
provide additional parking. Subsequent to this informal review, the Planning Director invoked his
authority to review the project under Section, 18.34.050, BMC, Sketch Plan Review.
Following this determination, the applicant submitted an application for a Sketch Plan/Re-Use/ COA in
February of 2009 (file #Z-09027). Staff viewed the project as the adaptive re-use of a site, which
previously had a more intensive use (convenience store/ gas station). Section 18.34.050 provides the
Sketch Plan Review Criteria: Sketch plans shall be reviewed for compliance with all applicable
requirements of this title including overlay district requirements and the cessation of any current
violations of this title, exclusive of any legal nonconforming conditions. Plan changes may be required.
Additional review criteria as outlined in Section 18.28 for Neighborhood Conservation Overlay District
were also applied. Staff worked with the applicant to reduce some of the existing non-conformities.
Several of the non-conformities were alleviated with this application including the closing of the drive
access on Rouse Avenue, the narrowing of the Peach Street drive access, reduction of pavement in the
watercourse setback area, improved storm water retention, screening of rooftop mechanical equipment,
greatly improved landscaping and screening of parking area and building improvements with design
elements appropriate for the Neighborhood Conservation Overlay District. Approval for this application
was granted in March 12, 2009.
The current proposal is to add a cabaret license (no gaming) for on-site consumption of beer and wine to
the existing business. A Cabaret License is recognized as a use that requires additional responsibility. As
such, the request for a Conditional Use Permit invokes additional site plan level review criteria by City
staff including the DRC. On March 17th, 2010 the DRC recommended conditional approval of the
CUP/COA. The conditions and code provisions are included in this staff report. Subsequent to receiving
the list of DRC conditions and code provisions, the applicant requested two variances for 1) Section
18.44, BMC - improvements to N. Rouse Avenue and the north side of Peach Street 2) Section
18.46.020.J, BMC – to install perimeter curbing in the parking lot. With this request, the applicant also
responded to staff conditions and removed the request for picnic tables in the watercourse setback area
and instead requests the placement of benches in alternate locations. On March 22nd, 2010 the City
Commission reclaimed this application from the Board of Adjustment.
PROJECT LOCATION
The subject business is located at 401 East Peach Street, the northeast corner of the intersection of N.
Rouse Avenue and Peach Street. The site is legally described as Lots 22-24, Block 119, Northern Pacific
Addition, SE 1/4, Section 6, T2S, R6E, P.P.M., City of Bozeman, Gallatin County, Montana. The
zoning designation for said property is HMU (Historic Mixed Use District). The property is
designated as Industrial Use in the Bozeman Community Plan. Please refer to the vicinity map
provided on the following page.
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RECOMMENDATION
The City of Bozeman Department of Planning and Community Development and the Development
Review Committee (DRC) have reviewed the Conditional Use Permit application and as a result
recommend to the City Commission approval of said application with the conditions and code
provisions outlined in this staff report. Planning Staff has identified various code provisions that are
currently not met by this application. Some or all of these items are listed in the findings of this staff
report. The applicant must comply with all provisions of Title 18, BMC, which are applicable to this
project, prior to receiving final approval. The applicant is advised that unmet code provisions, or code
provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver
or other relaxation of the lawful requirements of the Bozeman Municipal Code or State law.
RECOMMENDED CONDITIONS OF APPROVAL
The Planning and Community Development Department and the DRC find that the application, with
conditions, is in general compliance with the adopted Growth Policy and Title 18, BMC. The following
project specific conditions of approval are recommended:
1. A copy of the State Revenue Department liquor license for this establishment shall be submitted
to the Department of Planning & Community Development prior to the sale of alcoholic
beverages.
2. The applicant shall obtain a City of Bozeman Liquor License and provide the Department of
Planning & Community Development with a copy of the license prior to the sale of alcoholic
beverages.
3. Per Section 18.34.100.F.3, BMC, the right to serve alcohol to patrons is revocable at any time
based on substantial complaints from the public or from the Police Department regarding
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violations of the City of Bozeman‟s open alcohol container, minor in possession of alcohol, or
any other applicable law regarding consumption and/or procession of alcohol. No alcohol may be
served through the walk-up service window. No alcohol may be consumed by patrons on this
property outside the building.
4. Violations to zoning standards or other City standards may be reported to the Department of
Revenue Liquor Control Division.
5. If any catering with alcoholic beverages occurs, the applicant shall obtain a catering endorsement
from the Department of Revenue, Liquor Division, as well as a City catering license, for each
catered event.
6. The applicant shall add interior signage to the premises indicating where alcohol may be
consumed on the premises (i.e. that there shall be no outdoor service or consumption of alcohol).
7. Food and beverage service hours shall not extend beyond 10:00 p.m.
Planning Site Specific Conditions of Approval
8. The picnic tables along the creek are not permitted unless the necessary variances are approved
by the City Commission.
9. The full eight feet of the loading/unloading aisle for ADA van accessible space must be striped
according to federal ADA standards
10. Concrete slabs along the eastern edge of the parking area must be removed.
11. Private utility wires must be buried.
Engineering
12. The Montana Department of Fish, Wildlife & Parks, SCS, Montana Department of Environmental
Quality and Army Corps of Engineer's shall be contacted regarding the proposed project and any
required permits (i.e., 310, 404, Turbidity exemption, etc.) shall be obtained prior to FSP approval.
ZONING DESIGNATION & LAND USES
The property is zoned HMU (Northeast Historic Mixed Use). The intent of the Northeast Historic Mixed
Use district is to provide recognition of an area that has developed with a blend of uses not commonly seen
under typical zoning requirements. The unique qualities and nature of the area are not found elsewhere in
Bozeman and should be preserved as a place offering additional opportunities for creative integration of land
uses. The intent of this area is to allow private and case by case determination of the most appropriate use of
land in a broad range of both nonresidential and residential uses. Standards for buffering between different
land uses are deliberately not as high as those elsewhere in the community as it is assumed that persons
choosing to locate in this area are aware of the variety of possible adjacent land uses and have accepted such
possibilities as both acceptable and desirable. It is expected that the lots within this district will continue to
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develop under a variety of uses which may increase or decrease in scope in any given portion of the district.
The clear intent of this district is to support a mix and variety of nonresidential and residential uses. Nothing
in this chapter shall be interpreted to be discouraging or prejudicial to any listed use except as set forth as
principal and conditional uses. The following land uses and zoning are adjacent to the subject property:
North: Residential use, zoned “HMU” (Northeast Historic Mixed Use)
South: Residential use, zoned “R-2” (Residential One and Two Household Medium Density District)
East: Commercial use, zoned “HMU” (Northeast Historic Mixed Use)
West: Residential use, zoned “R-2” (Residential One and Two household Medium Density District)
ADOPTED GROWTH POLICY DESIGNATION
The Future Land Use Map (Figure 3-1) of the recently updated Bozeman Community Plan designates
the subject property 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.
REVIEW CRITERIA & STAFF FINDINGS
The Development Review Committee (DRC) has reviewed the CUP/COA application to allow a cabaret
license at the property located at 401 E. Peach Street, and as a result recommends to the City
Commission approval of said application with the conditions and code provisions outlined in this Staff
Report. The Department of Planning and Community Development has reviewed the application for a
Conditional Use Permit with Certificate of Appropriateness and Variance request against the relevant
chapters of Title 18, BMC and as a result offers the following summary review comments.
SECTION 18.34.100 “CITY COMMISISON/BOARD OF ADJUSTMENT CONSIDERATION AND
FINDINGS FOR CONDITIONAL USE PERMITS”
In addition to the review criteria below, the City Commission shall, in approving a conditional use
permit, find favorably as follows:
1. That the site for the proposed use is adequate in size and topography to accommodate such
use, and all yards, spaces, walls and fences, parking, loading and landscaping are adequate
to properly relate such use with the land and uses in the vicinity.
This location is currently being used for as a restaurant. The existing building for this use was
reviewed and approved through sketch plan review by staff in 2009. The size of the restaurant
exceeds the allowable square footage for a restaurant in the HMU District. The building‟s square
footage is 1,794 square feet and the allowable square footage is 1,500 square feet. Staff deemed
it a more appropriate and less intensive use than the former lawful non-conforming use as a
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convenience store, so no variance was required. The existing building and the parking area do
not meet the City‟s 75 foot watercourse setback standard for Bozeman Creek. The parking and
building encroach the old 35 foot watercourse setback. However, with the previous sketch plan
application, some of the pavement was removed from the watercourse setback area and a
retention pond was designed for the eastern edge of the parking area between the new pavement
and creek. Currently, the storm water retention pond is not installed as designed. Three utility
wires running from the utility pole on the southeast corner to the building are exposed and need
to be buried. The retention pond can be restored when completing the excavation to bury these
lines. The watercourse setback area needs to be landscaped with native shrubs and grasses. Until
such time, erosion prevention measures need to be taken. The front yard landscaping has been
dramatically improved. The required amount of parking is based on the square footage of the
parking area and has been provided. However, after opening for business, several complaints
were made regarding customers parking illegally on Peach Street and Rouse Avenue. The chief
complaint was about vehicles being parked too close to the intersection. The Bozeman Streets
department and Montana Department of Transportation (MDT) have since remedied this conflict
by posting “No Parking from here to corner” signs at the intersection.
The pedestrian connectivity for this part of town is woefully inadequate. The curb walk adjacent
to the property on Rouse Avenue, especially the old drive access, is difficult to keep free of snow
and ice in the winter. The north side of Peach Street has no sidewalk for two blocks to the east
although the Peach Street bridge, just east of the subject property, does have a sidewalk.
2. That the proposed use will have no material adverse effect upon the abutting property.
Persons objecting to the recommendations of review bodies carry the burden of proof.
Adjoining property owners within 200 feet of the property were mailed public notices by regular
first class mail. Staff has received one phone call inquiring about the variance request. The caller
did indicate that Peach Street does need sidewalks. He walks it daily. No written public comment
was received.
Following review of the proposed application with the inclusion of the recommended conditions,
staff finds that the proposed use will have no material adverse effect upon abutting properties
unless evidence presented at the public hearing proves otherwise. Staff has identified noise as a
potential source of conflict but has applied a special condition to reduce the likelihood of this
conflict (see next section).
3. That any additional conditions stated in the approval are deemed necessary to protect the
public health, safety and general welfare. Such conditions may include, but are not limited
to: regulation of use; special yards, spaces and buffers; special fences, solid fences and
walls; surfacing of parking areas; requiring street, service road or alley dedications and
improvements or appropriate bonds; regulation of points of vehicular ingress and egress;
regulation of signs; requiring maintenance of the grounds; regulation of noise, vibrations
and odors; regulation of hours for certain activities; time period within which the proposed
use shall be developed; duration of use; requiring the dedication of access rights; other
such conditions as will make possible the development of the City in an orderly and
efficient manner.
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Staff has identified, through the review process, recommended project conditions that are
included to protect the public health, safety, and general welfare. Please see the recommended
conditions of approval.
The applicant submitted a variance request and narrative on March 22nd, 2010. The applicant has
objected to the restricted service hours conditioned by staff. Staff feels restricting the service
hours to no later than 10:00 p.m. will reduce conflict with adjacent residential uses and also
meets standards established for HMU District in the City‟s Noise Ordinance No. 1539. The
Noise Ordinance has exceptions for the HMU District but generally the exceptions limit sound
emitting activities to between 6:00 a.m. and 10:00 p.m.
In the same narrative, the applicant removed the proposal for picnic tables along the creek. Staff
opposes the use of picnic tables in this area for two reasons: 1) it‟s unsafe due to proximity to
steep creek banks and 2) it introduces new structures and uses in the Bozeman Creek
watercourse setback area that would impact the growth and maintenance of vegetation in the
setback and the storm water retention pond. Because it was originally proposed with the CUP
application, staff feels it‟s prudent for public safety, to leave it in the list of conditions if the CUP
for the Cabaret License is approved.
SECTION 18.34.090 “SITE PLAN REVIEW CRITERIA”
In considering applications for a conditional use permit for a cabaret license for the on-premise
consumption of beer and wine, the City Commission/Board of Adjustment, the DRC, and when
appropriate, the ADR staff shall review the application against the Site Plan Review requirements of
18.34.090 as follows:
1. Conformance to and consistency with the City’s adopted growth policy
The site has historically been a retail operation surrounded by residential uses. Staff has
given this proposal special consideration and with conditions and code provisions this
proposal may co-exist in harmony with the surrounding uses. Therefore, the development
proposal is in conformance with the Bozeman Community Plan including the
“Industrial” land use designation.
2. Conformance to this title, including the cessation of any current violations
The applicant is advised that unmet code provisions, or code provisions that are not
specifically listed as conditions of approval, does not, in any way, create a waiver or
other relaxation of the lawful requirements of the Bozeman Municipal Code or state law.
The following code provisions must be addressed prior to final site plan approval:
PLANNING
a. Section 18.24.020, Authorized Uses in Historic Mixed Use District, Principal
Uses within the HMU includes restaurants less than 1,500 square feet in size. The
expansion of the restaurant seating area constitutes an expansion to a legal non-
conforming use.
b. Section 18.34.100.C states that the right to a conditional use permit shall be
contingent upon the fulfillment of all general and special conditions imposed by
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the Conditional Use Permit procedure. All special conditions and code provisions
shall constitute restrictions running with the land, shall be binding upon the owner
of the land, his successors or assigns, shall be consented to in writing by the
applicant prior to commencement of the use and shall be recorded as such with
the Gallatin County Clerk and Recorder‟s Office by the property owner prior to
the final site plan approval or commencement of the use. All of the conditions
and code provisions specifically stated under any conditional use listed in this title
shall apply and be adhered to by the owner of the land, successor or assigns.
c. Section 18.34.100. F. Termination/ Revocation of Conditional Use Permit
approval.
1. Conditional use permits are approved based on an analysis of
current local circumstances and regulatory requirements. Over time
these things may change and the use may no longer be appropriate
to a location. A conditional use permit will be considered as
terminated and of no further effect if:
a. After having been commenced, the approved use is not
actively conducted on the site for a period of two
continuous calendar years;
b. Final zoning approval to reuse the property for another
principal or conditional use is granted;
c. The use or development of the site is not begun within the
time limits of the final site plan approval in Section
18.34.130, BMC.
2. A conditional use which has terminated may be reestablished on a
site by either, the review and approval of a new conditional use
permit application, or a determination by the Planning Director that
the local circumstances and regulatory requirements are essentially
the same as at the time of the original approval. A denial of
renewal by the Planning Director may not be appealed. If the
Planning Director determines that the conditional use permit may
be renewed on a site then any conditions of approval of the original
conditional use permit are also renewed.
3. If activity begins for which a conditional use permit has been given
final approval, all activities must comply with any conditions of
approval or code requirements. Should there be a failure to
maintain compliance the City may revoke the approval through the
procedures outlined in Section 18.64.160, BMC.
d. Section 18.34.130 requires the applicant to submit seven (7) copies a Final Site
Plan within 6 months of preliminary approval containing all of the conditions,
corrections and modifications to be reviewed and approved by the Planning
Office.
e. Section 18.42.080.G and H requires that storm water detention/retention facilities
shall be designed as landscape amenities.
f. Section 18.42.100, Watercourse setback: All new development must meet
standards for developments granted preliminary plan approval on or after July 10,
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2002. A 75 foot watercourse setback is required along Bozeman Creek. No newly
constructed structure, addition to an existing structure, fence, deck, fill material
(other than that required for exempt uses), parking lot or other impervious
surfaces, or other similar improvements shall be located within required
watercourse setbacks, unless approved through, and in conformance with, a
variance or deviation process as authorized in this title.
g. Section 18.42.100.B.6, Watercourse setback planting: All disturbed areas within
the watercourse setback, including the storm water facility, area must be restored
with live vegetation as soon as weather permits. Native grasses and shrubs must
be used. A landscape plan for this area must be prepared by a qualified landscape
professional. Landscaping plan must be prepared by a qualified landscaping
professional and submitted as part of the Final Site Plan application. Erosion
control measures are required prior to the establishment of vegetation.
Establishment shall be defined as 75% coverage with healthy, weed free,
vegetation.
h. Section 18.42.150.D specifies the requirements for site and building mounted
lighting. Typical lighting “cutsheets” and lighting locations including building
mounted lighting locations on the building elevations shall be provided with the
final site plan. Existing and newly installed lighting shall meet standards listed in
section 18.42.150.D.7. The final site plan shall identify security lighting for
conformance with 18.42.150.D.7.c.
i. Section 18.42.160, Outdoor Storage: All materials, supplies, merchandise or other
similar matter not on display for direct sale, rental or lease to the ultimate
consumer or user shall be stored within the confines of a 100 percent opaque wall.
No outdoor storage of any type shall be permitted within any required yard. This
includes the entire watercourse setback area.
j. Section 18.52.060 states that a Sign Permit Application shall be reviewed and
approved by the Planning Office prior to the construction and installation of any
new on-site signage.
k. Section 18.74 requires that if final plat approval, occupancy of buildings or other
utilization of an approved development is to occur prior to the installation of all
required on-site improvements, an Improvements Agreement must be secured by
a method of security equal to one and one-half times the amount of the estimated
cost of the scheduled improvements not yet installed. Said method of security
shall be valid for a period of not less than twelve (12) months; however, the
applicant shall complete all on-site improvements within nine (9) months of
occupancy to avoid default on the method of security.
ENGINEERING
l. The Final Site Plan shall be adequately dimensioned. A complete legend of all line
types used shall also be provided.
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m. A Storm Water Drainage/Treatment Grading Plan and Maintenance Plan for a system
designed to remove solids, silt, oils, grease, and other pollutants must be provided to
and approved by the City Engineer. The plan must demonstrate adequate site
drainage (including sufficient spot elevations), storm water detention/retention basin
details (including basin sizing and discharge calculations, and discharge structure
details), underground storm-tech chamber sizing calculations, storm water discharge
destination, and a storm water maintenance plan.
n. Unless a variance is granted Section 18.44 applies. Section 18.44 states that all
streets shall be provided in accordance with an adopted growth policy and/or
transportation plan. The arrangement, type, extent, width, grade and location of all
streets shall be considered in their relation to existing and planned streets, to
topographical conditions, to public convenience and safety, and to the proposed uses
of the land to be served by such streets. The design standards contained in these
regulations shall apply to all construction, reconstruction and paving of streets.
Specific to this project are the following:
i. The drive approach onto Peach Street shall be constructed in accordance
with the City's standard approach (i.e., concrete apron, sidewalk section and
drop-curb) and shown as such on the FSP. A City Curb Cut and Sidewalk
Permit shall be obtained prior to FSP approval. UDO section
18.44.090.C.2.b specifies two-way commercial drive access shall be a
minimum of 16 feet wide and not exceed 35 feet wide. A one-way drive
access shall be a minimum of 16 feet wide.
ii. The North half of East Peach Street that borders the property shall be
improved to meet current city standards. These improvements include but
are not limited to: curb and gutter, necessary pavement and grading
improvements, and curb-walk. All public infrastructure must be designed
by a Professional Engineer and accepted by the City of Bozeman.
iii. The existing drive access onto North Rouse that is no longer in use shall be
removed. The existing curb-walk along North Rouse that borders the
property shall be replaced.
iv. The drive approach onto Peach Street shall be constructed in accordance
with the City's standard approach (i.e., concrete apron, sidewalk section and
drop-curb) and shown as such on the FSP. A City Curb Cut and Sidewalk
Permit shall be obtained prior to FSP approval.
o. Unless a variance is granted Section 18.46.020.J applies. 18.46.020.J states that
concrete curbing shall be provided around the entire parking lot perimeter and
adequately identified on the FSP. Typical curb details (i.e., raised and/or drop curbs)
and typical asphalt paving section detail shall be provided to and approved by the
City Engineer.
p. Adequate snow storage area must be designated outside the sight triangles, but on the
subject property (unless a snow storage easement is obtained for a location off the
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property and filed with the County Clerk and Recorder's office).
q. The applicant shall submit a construction route map dictating how materials and
heavy equipment will travel to and from the site in accordance with section
18.74.020.A.1 of the Unified Development Ordinance. This shall be submitted as
part of the final site plan for site developments, or with the infrastructure plans for
subdivisions. It shall be the responsibility of the applicant to ensure that the
construction traffic follows the approved routes.
r. All construction activities shall comply with section 18.74.020.A.2. of the Unified
Development Ordinance. This shall include routine cleaning/sweeping of material
that is dragged to adjacent streets. The City may require a guarantee as allowed for
under this section at any time during the construction to ensure any damages or
cleaning that are required are complete. The developer shall be responsible to
reimburse the City for all costs associated with the work if it becomes necessary for
the City to correct any problems that are identified.
3. Conformance with all other applicable laws, ordinances, and regulations
All other applicable laws, ordinances, and regulations must be followed. All conditions
for a Site Plan and Conditional Use Permit must be met prior to final approval.
4. Relationship of site plan elements to conditions both on and off the property
A light was installed on the property without approval from staff. It does not meet the
City‟s lighting standards. See “Lighting” below. The building renovations and the front
yard landscaping installed by the property have greatly enhanced the character of the N.
Rouse Avenue corridor, the surrounding neighborhood and the Northeast Urban Renewal
District.
5. The impact of the proposal on the existing and anticipated traffic and parking
conditions
No additional parking will be required to meet the City‟s minimum standards. Parking
for this use exists on site and has been reviewed and approved as part of the previously
referenced project review. Parking is sufficient for this use but the popularity of the
restaurant, especially on weekends, has demonstrated that issues with on-street parking
exist. Staff feels these issues were remedied with additional signage and increased
patrols. With the issuance of a cabaret license staff would be remiss if we did not express
concern that such issuance may result in renewed conflict between the restaurant patrons
parking on street and the residential uses in the area. The lack of sufficient pedestrian
facilities from on street parking places to the restaurant is also a concern.
The Montana Department of Transportation (MDT) has selected a preferred alternative
for improvements to N. Rouse Avenue. Currently, these plans include improvement to
the Peach and N. Rouse intersection and improvements including re-alignment, curb,
gutter and sidewalk construction along sections of N. Rouse and E. Peach Street abutting
the subject property. Funds to construct these improvements have yet to be allocated to
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MDT. MDT staff has stated that no funds are available until after 2014. Whether or not
funds will be available in 2015 or later, nobody knows.
6. Pedestrian and vehicular ingress and egress
As noted above, vehicular access to the site will not be modified. The removal of the
Rouse Avenue drive access with the Sketch Plan application removed a non-conforming
access and reduced congestion and conflict at this intersection. Pedestrian ingress and
egress is proposed to remain unchanged. However, staff feels improvements to the
pedestrian facilities and drive access are warranted with this application and has added
code provisions and conditions accordingly.
7. Landscaping, including the enhancement of buildings, the appearance of vehicular
use, open space, and pedestrian areas, and the preservation or replacement of
natural vegetation
No modifications to the existing landscaping are proposed at this time, but staff has
included code provisions 18.42.080.G, 18.42.080.H (landscaping of storm water retention
facilities) and 18.42.100.B.6, BMC (Watercourse setback planting). The applicant will
need to provide a landscaping plan for these areas for Final Site Plan approval. The
watercourse setback area must be re-vegetated to meet zoning compliance for issuance of
State on-premise consumption beer and wine licensing. Should time not allow for
vegetation to become established prior to when the applicant wishes the issuance of the
State alcohol license, an improvements agreement will be required and erosion control
measures must be in place if needed.
8. Open space
None required for this project.
9. Building location and height
No physical alterations are proposed for the existing building. The location and building
height will remain unchanged.
10. Setbacks
This proposed use is within an existing building. The only legal conforming setback is
the corner side yard along Rouse Avenue. All other yards are legal non-conforming.
11. Lighting
The applicant authorized Northwestern Energy (NWE) to install a high pressure sodium
street light on the southeast corner of the property without prior review and approval
from the Planning Department. The applicant has been informed that the light does not
conform to City standards 18.42.150, BMC. According to the applicant, the light was
installed under Northwestern Energy‟s Dusk „til Dawn program. The light is
inappropriate site lighting in that it generates excess spillover light onto the public-right-
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away and onto the adjacent property to the east. Both the Design Guidelines for the
Neighborhood Conservation Overlay District (NCOD) and the Northeast Urban Renewal
District Plan (NURDP) emphasize the importance of Dark Skies compliant lighting.
Therefore, the fixture is not only non-compliant with City standards but is also
inappropriate for site lighting within the NCOD and the Northeast Urban Renewal
District for the same reason.
Over the last several weeks staff has been working with NWE staff to see if a more
appropriate fixture is available. A site visit with Mel Kotur of NWE on April 2nd resulted
in Mr. Kotur stating that this is an inappropriate use of the Dusk „til Dawn program and
that there is no fixture that NWE can provide which will meet City Standards. Mr. Kotur
recommended the property owner install lights mounted on shorter poles so that the light
can still serve the purpose (safety and security) even after the trees along the creek have
leafed out. Mounted at its current location and height, the east side of parking lot will still
be very dark while the trees have leaves on them.
The applicant has removed the request for low profile lighting along the creek.
Staff has already approved a Certificate of Appropriateness for a small light for the
sidewalk approach on the west side. The applicant indicated customers were tripping on
the steps after dark.
Given the number of issues and concerns that have arisen from site lighting or lack
thereof, staff feels the applicant would be better served by hiring a lighting contractor to
draw up a lighting plan which 1) addresses the applicant‟s safety concerns, 2) complies
with the City‟s lighting standards and 3) provides fixtures which are appropriate for the
NCOD and the Northeast Urban Renewal District.
12. Provisions for utilities, including efficient public services and facilities
No changes to the sewer and water connections are proposed. It appears new private
utility services have been added. Three service lines to the building lie exposed on the
ground between the creek and the parking area. These lines need to be buried.
13. Site surface drainage
No changes to the site surface drainage are proposed, but the storm water retention pond
is not constructed as proposed and approved with the previous Sketch Plan application.
Upon burying the private utility lines, the retention pond must be excavated as designed.
14. Loading and unloading areas
No alterations are proposed that would impact loading and unloading areas.
15. Grading
No new grading is anticipated on site.
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16. Signage
No new signage is proposed at this time. The current signage was approved under a
temporary banner permit. The applicant indicated he has different signage planned for the
building. No applications for new signage have been submitted. If the owner wishes to
keep the current signage, sign permits are required. Future signage will require a COA.
17. Screening
No new screening is required with this application.
18. Overlay district provisions
The proposed lighting, picnic tables (subsequently removed from the proposal) and the
benches all need Certificates of Appropriateness (COA) since the property is located in
the Neighborhood Conservation Overlay District. The sidewalk light has been approved
and COA was issued. Details for the benches have not been provided. Staff anticipates
they will be similar in character to the picnic tables originally proposed. The parking lot
light installed by NWE has been deemed inappropriate. Staff will consider other
proposals for parking lot/security lighting as part of the Final Site plan submittal.
19. Other related matters, including relevant comment from affected parties
One business owner on Peach Street called to inquire about the variance request, and
responded that sidewalks on Peach Street are needed.
No written comments were received prior to the preparation of this staff report. Any
comments received after the date of this staff report will be distributed to the City
Commission at the public hearing.
20. If the development includes multiple lots that are interdependent for circulation or
other means of addressing requirement of this title, whether the lots are either:
a. Configured so that the sale of individual lots will not alter the approved
configuration or use of the property or cause the development to become
nonconforming;
b. The subject of reciprocal and perpetual easements or other agreements to which
the City is a party so that the sale of individual lots will not cause one or more
elements of the development to become nonconforming.
Not applicable.
VARIANCE REVIEW SECTION:
Section 18.66.060.C “Zoning Variances: Criteria for Consideration and Decision”
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Variance #1: Section 18.46.020.J - A variance is being requested to required parking lot curbing:
Granting of the variance will be contrary to the public interest. Much like streets, unimproved
parking lots create a multitude of problems including but not limited to mud and gravel drag-
on, drainage control, and keeping traffic and storage within a defined area. The project is
located adjacent to Bozeman Creek and parking lot runoff into the creek is of great concern.
Perimeter curbing is essential in controlling drainage. The UDO allows for the City Engineer
to waive this requirement and allow for pin down curbs. Due to the location and intensity of
this application the City Engineer has chosen not to waive this requirement.
“Variance #2:Section 18.44 – Variance request to required upgrades to the north side of Peach Street
and the east side of North Rouse Avenue adjacent to the subject property and the
upgrades to the Peach Street drive access:
A. The variance will not be contrary to and will serve the public interest;
Granting either variance will be contrary to the public interest. Unimproved streets and
parking lots 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 pot holes and track out, 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;
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. The parking lot and both Peach Street and Rouse Avenue 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 use on the site, and as
stated in 1 above, creates problems for the public and the City.
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Summary: Staff does not support the variance request. Part of any development project within the
City limits includes parking lot curbing and improvement of streets in all adjacent rights
of way. For projects on arterial and collector streets such as these, it has always been
the practice of the city to require improvements to the half of the street adjacent to the
subject property (including curb, gutter and sidewalk). This is 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.
Section 18.28.050 “Standards for Certificates of Appropriateness”
A. All work performed in completion of an approved Certificate of Appropriateness shall be in
conformance with the most recent edition of the Secretary of Interior’s Standards for the
Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings (Published 1995), published by U.S. Department of the Interior,
National Park Service, Cultural Resource Stewardship and Partnerships, Heritage Preservation
Services, Washington, D.C. (available for review at the Department of Planning).
No modifications to the building are proposed with this application.
B. Architectural appearance design guidelines used to consider the appropriateness and compatibility of
proposed alterations with original design features of subject structures or properties, and with
neighboring structures and properties, shall focus upon the following: Height; Proportions of doors and
windows; Relationship of building masses and spaces; Roof shape; Scale; Directional expression;
Architectural details; Concealment of non-period appurtenances, such as mechanical equipment;
Materials and color scheme
No modifications to the building are proposed with this application
C. Contemporary, nonperiod and innovative design of new structures and additions to existing
structures shall be encouraged when such new construction or additions do not destroy significant
historical, cultural or architectural structures, or their components, and when such design is
compatible with the foregoing elements of the structure and the surrounding structures.
No modifications to the building are proposed with this application.
D. When applying the standards of subsections A-C, the review authority shall be guided by the
Design Guidelines for the Neighborhood Conservation Overlay District which are hereby
incorporated by this reference. When reviewing a contemporary, non-period, or innovative design
of new structures, or addition to existing structure, the review authority shall be guided by the
Design Guidelines for the Neighborhood Conservation Overlay District to determine whether the
proposal is compatible with any existing or surrounding structures.
The Introduction, Chapters 2 and 4 of the Design Guidelines for the Neighborhood Conservation Overlay
District apply to this project, as this application proposes site lighting and furniture. A pole mounted light
was installed in the southeast corner of the property without a certificate of appropriateness (COA) and
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the fixture has been deemed inappropriate by staff. The lighting generates excessive spillover light on the
adjacent property to the east and into the public right-of-way. A COA was already issued for the single
light to be installed along the sidewalk steps from Rouse Avenue as part of this application.
No details were provided for the benches. The guidelines state that site furniture should be simple in
character and not highly ornate.
Introduction: “The overall design goal for Bozeman is to preserve the integrity of its individual historic
structures and the character of its streetscapes that are unique or irreplaceable assets to the City and its
neighborhoods.”Chapter 1: Adaptive Re-Use: Guideline 1: Seek uses that are compatible with the
historic character of the building.
Staff deemed the restaurant use as appropriate for this location given its historic retail use as a
convenience store and gas station.
Chapter 2: Street and Alley Patterns: Guideline 1: Respect historic settlement patterns.
The guidelines for streetscapes state: “Where no sidewalk exists a new sidewalk is required; it should be
constructed to be in character with the traditional sidewalks in the neighborhood”. Engineering staff is
requiring curbwalk configuration which is typical of other sidewalks along Rouse Avenue and the north
side of Peach Street west of Rouse Avenue. There is no established pattern on the north side of Peach
Street east of the subject property. The south side of Peach Street has a boulevard and sidewalk provided.
No changes to the alley are proposed with this application.
Chapter 4: Signs: Guideline 1: A flush-mounted or letter sign should be subordinate to the overall
building compositon.
The existing signage was reviewed and approved under a temporary banner permit. It is appropriate for
the neighborhood. The applicant needs to complete the permit process for a permanent sign. If the
applicant wishes to change the signage, staff needs additional application materials for review. These
materials may be submitted with the Final Site Plan application.
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(S), 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(S). 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.
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Attachments: Applicant‟s Submittal Materials
Report Sent To: Steven Schlegel, Great Northwest Construction, Inc., 1929 Bozeman Trail,
Bozeman, MT 59715
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