HomeMy WebLinkAbout11-09-10 Board of Adjustment Minutes
BOARD OF ADJUSTMENT
TUESDAY, NOVEMBER 9, 2010
MINUTES
ITEM 1. CALL TO ORDER AND ATTENDANCE
Chairperson Pomnichowski called the meeting of the Board of Adjustment to order at 6:01 p.m.
in the City 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, Vice Chairperson Tim McHarg, Planning Director
Dan Curtis Allyson Bristor, Associate Planner
JP Pomnichowski, Chairperson Keri Thorpe, Assistant Planner
Pat Jamison Tara Hastie, Recording Secretary
Cole Robertson
Chris Mehl, Commission Liaison
Members Absent Visitors Present
Caroline Adams Orlando Piva
Richard Lee Eric Noyes
ITEM 2. MINUTES OF OCTOBER 12, 2010
MOTION:
Mr. Curtis moved, Ms. Jamison seconded, to approve the minutes of October 12,
The motion carried 4-0
2010 as presented. . Those voting aye being Ms. Jamison, Mr. Curtis,
Chairperson Pomnichowski, and Vice Chairperson Sypinski; 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.}
Seeing no general public comment forthcoming, the public comment period was closed.
ITEM 4. CONSENT ITEM
1. BAR IX Creek Patio CUP/COA/DEV #Z-10100 Findings of Fact
(Bristor)
307-311 East Main Street
* Approval of Findings of Fact for a denial of the Conditional Use Permit with a
Certificate of Appropriateness Application with a Deviation to allow the after-
the-fact approval of the installation of a concrete patio/seating area within the
required Bozeman Creek watercourse setback and to allow the expansion of the
alcohol serving area (for on-premise consumption) to include the patio area.
Vice Chairperson Sypinski requested the item be moved to project review for discussion.
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Board of Adjustment Minutes – November 9, 2010
Mr. Curtis stated the upon review of the Findings Of Fact he had noticed there was a lack of
findings, as stated in the record, including impervious surface and health codes regarding
smoking on the property.
Vice Chairperson Sypinski stated the draft Findings Of Fact were not even as complete as the
minutes of the meeting and suggested the specifics should have been clarified.
Mr. Robertson joined the BOA.
Ms. Jamison asked why the Findings Of Fact had come before the Board in the current format.
Chairperson Pomnichowski responded she had the same question as she had always thought the
Board had been careful to make their findings official record at each meeting and asked Attorney
Cooper to explain. Attorney Cooper responded the Board had done well at record findings at
past meeting and stated the Findings Of Fact would serve the Board in the event that any action
was taken as a result of a meeting. He stated it would be ideal to have written findings
immediately following a Board decision though it would not always be possible; it would be an
important part of the official record.
Vice Chairperson Sypinski asked if findings should be issued for all decisions both affirmative
and negative. Attorney Cooper responded he would suggest findings should be issued for all
decisions.
Mr. Mehl asked if the Board had been notified in advance of the item appearing on the agenda.
Director McHarg responded the need for findings had been identified at the last meeting, but it
may not have been indicated as clearly. Mr. Mehl stated he thought the minutes were excellent,
but he thought it would be good to have findings regardless of the decision; he stated he
understood that how the item was introduced to the Board was not the best way.
Chairperson Pomnichowski responded there was no statute indicating a separate findings
document and suggested if a new step was to be introduced it should be included in the language
of the ordinance. She stated she was told by a member of the State Supreme Court that the best
record of a meeting was the recording of the meeting with the minutes being second as official
record. She stated the proposed Findings Of Fact were not as extensive as the minutes of the
meeting and suggested many of the items discussed by the Board had not been included in the
draft document. She suggested an ordinance be included to provide for Findings Of Fact from
the BOA. She suggested the meeting minutes stand as the Findings Of Fact for the proposal.
Vice Chairperson Sypinski concurred with Chairperson Pomnichowski and added he did not
think the Findings Of Fact draft was as detailed as it should be and had not incorporated the
Board’s comments.
Attorney Cooper suggested the Board make a motion in the affirmative, and if the motion failed,
the minutes would serve as the findings for the decision.
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Board of Adjustment Minutes – November 9, 2010
MOTION
: Mr. Curtis moved, Ms. Jamison seconded, to deny the draft Findings Of Fact.
Chairperson Pomnichowski suggested the motion be in the affirmative.
The motion was withdrawn.
MOTION:
Mr. Curtis moved, Ms. Jamison seconded, to approve
BAR IX Creek Patio
The motion failed 0-4
. . Those voting aye being none.
CUP/COA/DEV #Z-10100 Findings of Fact
Those voting nay being Ms. Jamison, Mr. Curtis, Mr. Robertson, Chairperson Pomnichowski,
and Vice Chairperson Sypinski.
ITEM 5. PROJECT REVIEW
1. Altemus/Salter CUP/DEV #Z-10241
(Bristor)
th
15-17 South 5 Avenue
* A Conditional Use Permit with a Deviation Application to allow the lawful
establishment of office use on the property with less than the required number of
parking spaces for the structure.
Opened and continued to 12/14/10 to allow the applicant to submit additional materials and more Staff
review time.
Chairperson Pomnichowski opened the item for public comment. Seeing none forthcoming, Chairperson
Pomnichowski opened and continued the item to the next meeting of the BOA.
2. American Indian Institute SP/COA/DEV #Z-10273
(Thorpe)
502 West Mendenhall Street
* A Site Plan Certificate of Appropriateness with a Deviation Application to allow
the re-use of an existing residential structure zoned B-2 (Community Business
District) for non-profit organization offices with a request for deviations to
corner side and side yard setbacks.
Assistant Planner Keri Thorpe presented the Staff Report noting the location of the property and
its zoning designation. She stated the property had been underutilized in recent years due to
accessibility requirements and other issues. She stated the current owner was proposing to use the
site as office space and archival storage. She stated the storage portion of the proposal reduced
the parking requirements and make the proposal workable on the site. She stated the applicant
had requested two deviations to make the project work; to provide the necessary backing distance
they would need to encroach into required setbacks. She presented the Board with the historic
inventory documentation for the property and noted the applicant did not intend to make
significant changes to the property but would be improving the structure; the site improvements
would be the majority of the work proposed to be completed. She stated the project had been
publicly noticed though no public comment had been received. She stated Staff was supportive of
the proposal with Staff conditions of approval and the requested deviations.
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Board of Adjustment Minutes – November 9, 2010
Vice Chairperson Sypinski asked if the part of the site on the south site adjacent to the hotel
would be the location of the parking area. Planner Thorpe responded the parking lot would be
accessed from the south side of the side on the alley; she added the ordinance did not allow
backing into the street, therefore, the applicant’s proposed parking configuration is the best
solution and is typical of other residential properties on Mendenhall Street that have been
converted to commercial use.
Mr. Robertson stated he thought he had read that the side yard setback should be five feet.
Planner Thorpe responded the structure setback was five feet, but the setback for parking areas
was eight feet.
Orlando Piva - applicant, 1005 South Willson Avenue, addressed the BOA. He stated he thought
the project would be worthwhile for BOA approval to give the organization a home instead of the
basement they’ve been working out of. He stated the proposal followed the pattern in that area of
town. He stated the existing lilac bushes would help to conceal the parking lot and added there
was an ocean of parking in that location due to the proximity of the hotel. He stated he did not
see any negative impacts on adjacent properties.
Chairperson Pomnichowski asked if Mr. Piva had seen the Staff Report. Mr. Piva responded he
had seen the Staff Report. Chairperson Pomnichowski asked if he or the owner had any issues
with the conditions of approval. Mr. Piva responded the detention/retention condition was an
issue as the detention location would be so close to the building and they had wanted the water
below grade as quickly as possible to prevent it from entering the foundation; they would prefer a
dry well method.
Chairperson Pomnichowski asked if the project was moved forward with the conditions of
approval as written could the storm water retention/detention facility be modified. Planner
Thorpe responded the dry well issue had been discussed and had been deemed alright by
Engineering Staff. Staff chose to include the code provision in case the applicant decided to
install a retention swale; the applicant needed to be aware that such facilities must be landscaped.
The applicant had originally proposed a concrete facility. Director McHarg suggested language
could be included in the condition of approval that stated “or another method as determined by
the City Engineer”.
Chairperson Pomnichowski opened the item for public comment. Seeing none forthcoming,
Chairperson Pomnichowski closed the public comment period.
Mr. Curtis stated the storm water retention language stated that if the storm water facility was in a
landscaped area it had to be landscaped, but did not state the facility had to be located in a
landscaped area. He added if the facility ended up being a drywell, the condition of approval
would be mute. Mr. Robertson stated condition of approval #13 also mentioned retention. Mr.
Curtis responded the condition was regarding landscaping the retention area.
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Board of Adjustment Minutes – November 9, 2010
Vice Chairperson Sypinski commended the applicant on his submittal and stated he was
supportive of the proposal as he found it to be in keeping with the review criteria as set forth in
the UDO as well as the pattern that has been established along Mendenhall Street.
Chairperson Pomnichowski stated that each application must meet specific review criteria as set
forth in the ordinance; she felt the proposal met those review criteria. She stated part of the
reason the criteria had been so easily met was that the B-2 was the most forgiving, gracious
zoning designation the City of Bozeman had.
MOTION:
Vice Chairperson Sypinski moved, Mr. Curtis seconded, to approve
American Indian
The motion carried 5-0
. . Those
Institute SP/COA/DEV #Z-10273 with Staff conditions of approval
voting aye being Ms. Jamison, Mr. Curtis, Mr. Robertson, Chairperson Pomnichowski, and Vice
Chairperson Sypinski; those voting nay being none.
ITEM 6. Briefing by City Attorney (As necessary.)
Attorney Cooper apologized to the Board for the manner in which the Findings Of Fact had been
presented to the Board; it could be something considered with amendments to the UDO as he had
some other possible changes. He apologized for not being more responsive to the Board’s
questions but he had a couple more points on why the findings should be considered. He stated
findings were presented to the Commission after each of their reviews for subdivision delineating
the findings and causes for each. He stated he had patterned those findings after a typical decision
that would be made by a court. He stated there was a lot of overlap from the Staff Report to the
Findings document. He stated the statute for the BOA made reference to the filing of the decision
of the BOA in the section speaking about appeals of the Board’s decision to the court. He stated
an appellant would file a petition with the District Court and the BOA would have ten days to
give the court what they were asking for; the information must concisely set forth how and why
the decision was made. He stated it should be a deliberate process to institute the Findings Of
Fact and the decision itself should be a written order; he stated it would still be his
recommendation to adopt some procedure for Findings and Order with every application.
Chairperson Pomnichowski stated her biggest concern was that the proposed Findings Of Fact
was not an accurate reflection of the items as discussed during the review process. She suggested
incorporation of the Findings Of Fact would be fine, but it would need to accurately reflect the
Board’s findings. Vice Chairperson Sypinski stated he concurred with Chairperson
Pomnichowski and he had been concerned that the document was lacking required information.
Attorney Cooper responded Bar IX had three separate applications which included the
Conditional Use Permit, the Certificate of Appropriateness, and the Deviation; the draft findings
were specific to the Conditional Use Permit. He stated he thought the Board was asking to have
each of those applications addressed in the findings. Vice Chairperson Sypinski responded he
would be more comfortable with all aspects of the applications being included in the Findings Of
Fact document.
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Board of Adjustment Minutes – November 9, 2010
Chairperson Pomnichowski asked how the UDO amendment to provide for BOA findings could
be moved forward. Attorney Cooper responded he would not attempt to guess at the length of
time it would take to amend the UDO, but would bring back draft documentation for the Board’s
input and advice. Chairperson Pomnichowski stated the reason she had suggested the resolution
language was to include the findings in the approval; she suggested Staff could go through the
meeting minutes and transpose the format into a findings document. She stated she did not care
in what format the findings were presented as long as they were an accurate depiction of the
decision. Attorney Cooper responded he preferred the format of a court order rather than a
resolution format.
Mr. Robertson stated he was concerned the Findings Of Fact would add another due diligence to
the Board; he asked if the Findings Of Fact would trump the meeting minutes and the recording.
Attorney Cooper responded the Findings Of Fact should never trump the official minutes or
recording and should always be completely consistent; at court it was common to have the
transcript of a meeting brought up for consideration. He reiterated that the documents would need
to be consistent; the Board would be attempting to complete the review process by putting the
findings into a concise form. Director McHarg responded the Planning Department spent a lot of
resources having the Recording Secretary at each meeting providing minutes as the court would
be more interested in the recording of the meeting if an appeal of a BOA decision were to occur;
he stated he felt the minutes were redundant due to each meeting being recorded and added he
would rather reallocate the Recording Secretary’s time to better serve members of the public.
Chairperson Pomnichowski responded the Board relied heavily on the minutes of each meeting
and the minutes would also be included in the findings of the Board. Director McHarg stated the
waterfront would be covered at 3 different levels with the minutes, Findings Of Fact, and the
recording; he added if the findings document was not a direction the Board wanted to go, Staff
would continue to take minutes.
Mr. Robertson asked for clarification of whether or not an appeal would review the written
minutes and the recording. Attorney Cooper responded the court could ask for whatever they
wanted including those items. Mr. Robertson asked if there had been a case that had been
required to provide all of the minutes, findings, and recordings to weigh in making their decision.
Attorney Cooper responded the recording of the action and the articulation of the findings in a
clear and concise manner in the minutes would be sufficient; if the court decided it needed the
recording they could get it but if there were questions on whether or not the findings were
accurate, the recording would be consulted.
Ms. Jamison asked if there was anything that dictated how minutes should be taken. Attorney
Cooper responded those requirements were evolving; the short form minutes synopsis including a
recording could be adopted. Ms. Jamison asked if the motion had to be in some form of adopted
method. Attorney Cooper responded the motion was a preferred style that was used.
Chairperson Pomnichowski stated she would not be concerned if Staff preferred three forms of
findings; her only requirement was that the findings accurately reflect the facts as well as the
grounds of the BOA decision. She stated the proposed draft findings were inaccurate.
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Board of Adjustment Minutes – November 9, 2010
ITEM 7. Briefing by Planning Staff (As necessary.)
No items were forthcoming.
ITEM 8. NEW BUSINESS
No items were forthcoming.
ITEM 9. F.Y.I.
Mr. Robertson stated he might be absent for the next meeting.
ITEM 10.ADJOURNMENT
There being no further business before the BOA, the meeting was adjourned at 7:06 p.m.
______________________________
JP Pomnichowski, Chairperson
City of Bozeman Board of Adjustment
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Board of Adjustment Minutes – November 9, 2010