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HomeMy WebLinkAboutProvisional Adoption of Ordinance No. 1804, amending Title 18, UDO, Zoning.pdf Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chris Saunders, Assistant Planning Director Tim McHarg, Planning Director SUBJECT: First Reading for Ordinance 1804 amending multiple sections of Title 18, Unified Development Ordinance, Bozeman Municipal Code. MEETING DATE: June 27, 2011 AGENDA ITEM TYPE: Action Item RECOMMENDATION: Conduct a public hearing on Ordinance 1804, and having considered public testimony, the materials presented in the packet, and the review criteria for adoption of a zoning ordinance preliminarily approve Ordinance 1804. RECOMMENDED MOTION: “Having heard and considered public testimony, the materials presented in the packet, and the review criteria for adoption of an ordinance under the City’s zoning authority I find that the text of Ordinance 1804 is consistent with the criteria and move to preliminarily approve Ordinance 1804.” BACKGROUND: The City manages the development of land within the City boundaries through Title 18, Unified Development Ordinance. This Title includes zoning, subdivision, and other review authority. The City monitors its regulations through time to identify ways to improve. The City Commission and Legislature also set priorities, policies and laws to which the ordinance must be responsive. A group of amendments have been identified and prepared to make improvements to the City’s regulations or to respond to recent changes in law. The draft regulations have been discussed with multiple advisory boards including the Historic Preservation Advisory Board, Recreation and Parks Advisory Board, and the Zoning Commission. All have recommended favorably on the draft ordinance. The process of developing text amendments is on-going. There have been some minor amendments for clarification since the Zoning Commission held its public hearing. The draft ordinance shows edits with underlines and strikeouts. Underlined text shows an addition to existing language. Struck through text shows a deletion. The changes since the Zoning Commission public hearing are identified by having either a double strike through for deletions, or if an addition the text is presented in all-capitals. Should the Commission grant preliminary approval the historical editing will be removed and a simplified underline and single strikeout draft will be prepared for the final reading which shows the actions of the Commission on first reading. The edits are also emphasized with red text to make them more readily visible. 128 Principal actions by this ordinance are: 1) Create zoning commission on the same structure as other major advisory boards rather than by definition. 2) Create certain exceptions from the requirement to obtain a certificate of appropriateness within the neighborhood conservation overlay district. These exemptions are supported by the Historic Preservation Advisory Board as a way to spend less time on incidental projects and make more staff time available to more substantive work. 3) Modify the parkland dedication requirements within the B-3, Central Business, district. This includes making changes to preferred means of satisfying dedication requirements and delegating approval authority to the Planning Director. 4) Modify sign requirements for window signs and modify how the allowed sign area is calculated. 5) Clarify enforcement provisions. UNRESOLVED ISSUES: None at this time. ALTERNATIVES: The City Commission could decline to approve the draft ordinance or could propose alternative text. FISCAL EFFECTS: This ordinance does not have a direct expense to the City. The change to requirements for a Certificate of Appropriateness shown in Section 2 of the draft would result in fewer applications being submitted with corresponding reduction in revenue. The change would reduce Department revenues by approximately $500 per month. Attachments: Ordinance 1804, Staff report, Zoning Commission resolution and minutes, Historic Preservation Advisory Board minutes, Recreation and Parks Advisory Board minutes, memo to Recreation and Parks Advisory Board Subdivision Review Committee. Report compiled on: June 16, 2011 129 STAFF REPORT UDO TEXT AMENDMENTS FILE NO. #Z-11021 #Z-11021 City Initiated UDO Text Amendment Staff Report 1 Item: Unified Development Ordinance Text Amendment Application #Z-11021, to create Chapter 2.65, Zoning Commission describing duties, composition, and related matters for a municipal zoning commission; to amend Chapter 18.28 Neighborhood Conservation Overlay district to create certain exemptions from requirement to obtain a certificate of appropriateness before beginning construction and clarifying text of the chapter; to amend Section 18.42.170, Trash and Garbage Enclosures to require containment of construction debris; to amend Chapter 18.50 Park and Recreation Requirements to amend Chapter 18.52 Signs, including but not limited to Section 18.52.020 to exempt murals from regulation as signs, Section 18.52.050 to modify determination of window sign area, Section 18.52.060 to modify the formula for determining allowed sign area on a lot, and Section 18.52.130 adding a cross reference to City standards for addressing; to amend Section 18.64.010 to allow the Planning Director to approval master site plans; Section 18.64.160 Violation-Penalty-Assisting or Abetting-Additional Remedies to clarify application of existing enforcement options and authorizing recording of actions to resolve non-compliance; to create a new Section 18.80.1945 defining a mural; and to amend Section 18.80.3210 the definition of window sign. Applicant: Bozeman City Commission P.O. Box 1230 Bozeman, MT 59771-1230 Representative: Department of Planning and Community Development P.O. Box 1230 Bozeman, MT 59771-1230 Date/Time: Before the Bozeman Zoning Commission on Tuesday, June 7, 2011 at 6:00 p.m. in the Commission Room, City Hall 121 N Rouse Avenue, Bozeman, Montana. Before the Bozeman City Commission on Monday, June 27, 2011 at 6:00 p.m. in the Commission Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana. Report By: Chris Saunders, Interim Director of Planning and Community Development PROJECT LOCATION This amendment process does not alter the boundaries of zoning districts. The proposed edits in Sections 1, 6, and 8-18 are applicable city wide, Sections 2-5 apply within the Neighborhood Conservation Overlay District, Section 7 applies within the B-3 Central Business District. 130 #Z-11021 City Initiated UDO Text Amendment Staff Report 2 PROPOSAL AND BACKGROUND INFORMATION The City monitors its regulations to ensure that they are effective and consistent with the purposes for which they were created and in balance with a broad range of community priorities. From time to time various possible changes are identified which have potential to improve effectiveness and balance. Revisions to state law may also require amendment to local ordinances. Several changes have been identified. The City Commission held a work session on August 31, 2010 where they discussed and gave direction for amendments on several points relating to signs. The various changes have been drafted into code language to facilitate the public review of the amendments. The staff is also working with affected advisory boards to obtain comments during the review process. A summary of the major points is presented below. Additional amendments and sections may be identified as the final draft of this work is prepared. The content of the proposed text changes are presented in the shell of an ordinance format. The formal findings (whereas clauses) will be completed after the Zoning Commission action to incorporate the various public comments, public hearings, and other components needed. The ordinance shell is noted as a draft at this stage in the public review process. The text is presented with underlined red text showing additions to the text and struck through red text showing deletions. A public notice of the hearings before the Zoning Commission and City Commission has been published in the Bozeman Daily Chronicle and additional notice has also been provided to interested parties. Draft Ordinance 1804 Section 1) Currently the zoning commission is authorized by state statute and by definition in the UDO, see Section 18.80.3250. The proposed change places the Zoning Commission into the same structure as the other advisory boards under Title 2, Administration. It does not change any duties of the Zoning Commission as those are established by state law. The number of seats on the commission remains the same, although there is a provision for alternates in the event a quorum cannot otherwise be provided. Sections 2-5) This set of changes tidies up several references for internal consistency in the UDO and creates several exemptions from the requirements for a certificate of appropriateness in the Neighborhood Conservation Overlay District. The Historic Preservation Advisory Board has considered an initial draft of this text and is supportive. They prefer to use the available resources to focus on more substantive work and spend less time processing minor applications that do not have substantive effect on the historic character of properties. Proposals which do not meet the exceptions can still be approved, they will follow the same COA process as currently exists. Section 6) This new requirement is to help manage on-site waste during the construction process and lessen impact of adjacent properties of windblown trash. This is a condition that the City Commission has applied to several projects and has requested that it be included as a base requirement. Section 7) The City Commission has requested the Planning Department to consider some possible changes to park dedication requirements. This is being generated by the commentary on park fees on page 39 of the Downtown Plan, see copy of text below. “PARK FEE It is very unusual for development within any downtown to be charged a fee for parks. This is for several reasons. First, parkland is most usually needed on the outer edge of a community where families with children are settling. Downtowns do not typically attract that demographic and thus if development is charged such a fee, in a sense it is subsidizing edge development. This is 131 #Z-11021 City Initiated UDO Text Amendment Staff Report 3 contrary to planning principles involving infill. Second, downtowns usually already have, or are close to, existing parks with sufficient capacity for more use; rarely are entirely new parks needed. Finally, the people who live in, work in, and visit downtowns use public space differently. They tend to use the sidewalks, cafes and coffeehouses for relaxing, passive recreation and socializing. In some ways parks are superfluous. We recommend this fee be specifically dedicated to the downtown district and used as a funding source for the “green” strategies outlined in this plan; improving sidewalks, greening streets and alleys, creating small parks along Bozeman Creek, and creating or improving other public spaces and facilities within the downtown.” There are also other elements of the Downtown plan that discuss development of green spaces which may include parks. Chapters 9 and 10 of the Parks, Recreation, Open Space and Trails plan discuss various goals and objectives for the acquisition and management of parkland. The Commission has also adopted the following goals to be pursued in 2010-2011. Items 3 and 5 are also seen as being affected by park dedication requirements. “1) Enhance Downtown Development Opportunities 1. Utilize the federal HUD grant for the blast site (Finance, CM) 2. Conduct a "Full cost & benefit study: social, economic & traffic considerations for one-way conversion to 2-way, shared lanes, streetscape improvements and truck route modifications" as recommended by the Downtown Plan. (Engineers) 3. Increase density in the B-3 district. Bozeman Community Plan (BCP) Implementation Policy 8, 9, 16, 21a, 22, 27, 81. (Planning - Krueger) 4. Implement the remaining parking recommendations identified in the downtown plan and review and update for the Downtown Parking SID/Cash-in-lieu program. BCP Implementation policies 2, 3, 9, 10, 11. (Planning - Bristor, Parking) 5. Amend UDO to incentivize downtown redevelopment and the construction of multi-story buildings (Planning - Riley)” In considering options to address this direction Staff identified several possibilities summarized below. Options: A. Leave as is. B. No requirement for park dedication within the B-3 zoning district no matter how many units are proposed. C. Exempt the first five new dwellings in a project from dedication requirements (somewhat mirrors the exemption for minor subdivisions. D. Make specific that there is no land required, only cash-in-lieu. Delegate approval authority for review and acceptance of cash-in-lieu to the Planning Director. This shortens the review process and eliminates unnecessary effort. E. Follow the normal cash-in-lieu procedures but adopt a fixed percentage reduction across the board. F. The City Commission could pre-designate all cash-in-lieu received to certain projects like improving Bozeman Creek. This would likely not be code but a separate resolution or other 132 #Z-11021 City Initiated UDO Text Amendment Staff Report 4 action and is not shown in the attached text. These options were discussed with the Recreation and Parks Advisory Board subdivision review committee on March 11, 2011. The full Recreation and Parks Advisory Board will consider them on June 9th. The committee’s preference was a for combination of options D and F to both focus benefits and simplify the review process for zoning projects. This was also discussed with the City Commission on May 9th who indicated initial support for the recommendation by the RPAB. The draft text in Section 7 reflects options D and F. Section 8-12, 16-18) Revisions to the sign code were suggested by staff and directed by the City Commission last August 31st. They have been incorporated into this code revision effort for convenience. The revisions are less restrictive than the present wording and allow some additional flexibility while holding the essential standards intact. The revisions provide incentives for site layout consistent with the City’s growth policy and regulatory standards for urban design. The proposed revisions allow additional sign area. Sign regulations, more so than most other elements of land use regulations, are very complex and subject to many legal requirements. Due to the relationship between the required protection of speech guaranteed by the US and Montana constitutions and the regulatory structure apparently small intended changes can have significant consequences. Sign regulations have a significant effect on the safety and appearance of a community. Those concerns must be balanced with the need and ability for businesses to communicate with current and potential customers. Effective signs are designed in a manner that is sensitive to their context including their location and the community around them. The City adopted its first sign code on May 1, 1883 as part of Ordinance 8. It was signed by Mayor J.V. Bogert, after whom Bogert Park is named. The City adopted its present sign code in 1991 as part of a comprehensive update to the zoning regulations. Those changes followed a 14 month effort by a 12 member Ad Hoc Committee to develop a comprehensive sign ordinance. Several adjustments have been made in the intervening years but the essential components of the regulations have remained the same. Discussion on specific sign related amendments: Definitions: Two definitions are modified or created in the proposed amendments. The definition for window sign is modified to include items hung behind the window. This is a relaxation of the present wording which only allows the window sign exemption to be used for physically attached signs. A new definition is created to define murals in a manner that is distinct from signs. This helps to distinguish when certain regulations are applicable and when not. Allowed sign types: The amendment does not change the type of signs authorized. Allowed sign area: The amendments modify how window signs are measured and executed. The changes allow multiple panes of glass to be aggregated when applying the area exemption for window signs. The practical effect of this change is to allow a greater amount of sign area as well as greater latitude in displaying window signs. Section 13) This section clarifies the existing enforcement provisions as advised by the City Attorney. Section 14-15) These sections simplify the zoning appeal process and make the timing consistent with the manner in which time is counted in other portions of the UDO. Section 16) This section incorporates recent changes in state law regarding zoning protests. 133 #Z-11021 City Initiated UDO Text Amendment Staff Report 5 REVIEW CRITERIA The Zoning Commission criteria for review are established in statute. The analysis below notes that review criteria are met with the term ‘yes’; are not met with the term ‘no’; or are not materially affected with the term ‘neutral’. This report is a summary of the Staff’s analysis. Interpretation and application of the Unified Development Ordinance must take into account the document as a whole. If a substantial change is made then a particular point may be emphasized. To prevent redundancy, when an earlier review criterion has addressed an issue a later review criterion addressing the same issue may refer back to the prior answer. According to Section 18.68.020 of the Unified Development Ordinance (UDO), the Bozeman Zoning Commission shall cause to be made an investigation of facts bearing on each UDO text amendment application relevant to zoning. The Zoning Commission must review the information they consider necessary to assure that the action of each UDO text amendment application is consistent with the intent and purpose of the UDO. Specifically, the investigation must address the following criteria as required in Section 76-2-304, Montana Code Annotated. There are additional review criteria beyond necessary to consider speech regulations beyond the normal zoning requirements. The Zoning Commission is charged to offer a recommendation only on those established by Section 76-2-304, MCA which are identified by letter below. The City Commission will address all criteria. Section 76-2-304, MCA Criteria A. Be in accordance with a growth policy. Yes. There is little text in the Bozeman Community Plan (the growth policy) which is specific to signs. Most of that text is in Appendices D and J and is descriptive of existing regulations and standards relating to signs. Some language is applicable on the basis of general principles, primarily as it relates to the visual elements of signs. As discussed elsewhere in this report, a sign can be a distraction to a driver and thereby be a hazard. A sign also is a part of the overall appearance of a development and can contribute or distract from the overall visual quality and interest of the site. Overall, the Bozeman Community Plan encourages quality of design and protection of the public safety. Generally applicable principles are illustrated by the following excerpts from the Bozeman Community Plan. The various changes proposed in Ordinance 1804 are consistent with the principles of the growth policy. “Objective G-2.4: Develop a balanced system of regulatory requirements, programs, and incentives to ensure that development within the Planning Area is in compliance with the Bozeman Community Plan.” - The revisions to sign area related to site orientation are an incentive to place buildings and parking in a manner consistent with the goals of this growth policy. The revisions to certificate of appropriateness standards for certain exemptions from review procedures encourages the use of those construction types found to be appropriate for historic preservation. Revisions to the parkland requirements in the B-3 district will remove a disincentive to development of additional downtown housing as advocated in the 2nd implementation strategy in the Downtown Bozeman Improvement Plan, a neighborhood plan, under the growth policy. Chapter 4, Community Quality, Section 4.1, Intent and Background. “In many ways, the perceived image of a community affects the quality of life enjoyed by current residents, influences the desirability 134 #Z-11021 City Initiated UDO Text Amendment Staff Report 6 of the community to newcomers and visitors, and ultimately impacts its economic viability…. Community Quality extends from the framework of the City, that which supports it and gives it physical form (streets, utilities, trails, natural features) to the individual architectural details and materials used on new buildings.” Chapter 8, Economic Development, Section 8.3 Economic Development Goals and Objectives, “Objective ED-1.3: Foster a positive economic climate through a well managed and aesthetically pleasing built environment, and by maintaining a beautiful and healthy natural environment to promote and attract businesses with a desirable impact on the community.” Chapter 13, Disaster and Emergency Preparedness, Section 13.1, Intent and Background. “Risk and the possibility of things going wrong are inescapable. However, many risks can be foreseen and proper forethought and action can reduce the likelihood and severity of impacts…” Section 13.3, Disaster and Emergency Preparedness Goals and Objectives, “Goal D-2: Recognize and strive to address both chronic as well as acute hazards and the effect of cumulative actions on increasing or decreasing hazards. Rationale: While some problems occur quickly and have obvious impacts, others can be inconspicuous and only recognized after longer term evaluation. Some problems, like flooding, can be increased incrementally by actions that individually are not significant. However, as many actions are taken the cumulative effect can result in a substantially increased hazard level and impact to the community.” Goal G-2: Implementation – Ensure that all regulatory and non-regulatory implementation actions undertaken by the City to achieve the goals and objectives of this plan are effective, fair, and are reviewed for consistency with this plan on a regular basis. Objective G-2.4: Develop a balanced system of regulatory requirements, programs, and incentives to ensure that development within the Planning Area is in compliance with the Bozeman Community Plan. B. The effect on motorized and non-motorized transportation systems. Yes. The amendments as presented have little impact on transportation. Those relating to signs have been drafted to minimize the risk of distraction to drivers. The amendments do not affect sign locations which might interfere with driver visibility. C. Secure safety from fire, panic, and other dangers. Neutral. It is not expected that these subjects will be affected by these amendments. Most of the amendments are procedural in nature. D. Promote public health, public safety, and general welfare. Yes. The amendments improve the general welfare by advancing the goals and objectives of the growth policy as described in A, above. E. Reasonable provision of adequate light and air. Neutral. None of the edits change setbacks, required area per dwelling, or allowed lot coverage. The change to parkland requirements recognizes the practical limitations of residential development within an existing urban area. Contributions may still be made but they will focus more on improving existing park areas. The building codes and other standards remain in place and will ensure that adequate light and air is provided. 135 #Z-11021 City Initiated UDO Text Amendment Staff Report 7 F. Prevention of overcrowding of land. Neutral. These amendments are not altering requirements for lot coverage or building density. Objectively, overcrowding is a condition where the use of land overwhelms the ability of infrastructure and buildings to meet the needs of users. This functional problem is addressed by ensuring the installation of water, sewer, transportation, and other services. G. Avoiding undue concentration of population. Neutral. The proposed amendments do not change standards for density of population. H. Facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirement. Yes. The amendments relating to parkland dedication maintain a requirement to mitigate need for service but modify the procedural manner to satisfying the mitigation requirement. I. Conserving the value of buildings. Yes. These amendments affecting Chapter 18.28 will encourage and simplify the upkeep and maintenance of existing buildings within the Neighborhood Conservation overlay district. J. Character of the district. Yes. The primary character giving standards of the various zoning districts remain essentially unchanged. K. Peculiar suitability for particular uses. Neutral. The amendments are not specific to a particular parcel. The amendments are appropriate to the areas to which they will apply. L. Encourage the most appropriate use of land throughout the jurisdictional area. Neutral. These amendments will not alter the uses allowed in zoning districts or the boundaries of the districts. M. Promotion of Compatible Urban Growth. Neutral. The proposed amendments do not expand the development area of the City or change the allowed land uses in the zoning districts. Additional Criteria Specific to Signs Additional criteria exist for regulations which control speech. These standards are not from a single location like the State of Montana criteria for zoning review. These items have been identified through the courts evaluation of cases relating to the constitutional protection of speech. These additional criteria are addressed below. Each individual criteria is identified by a number. Speech may be regulated by local governments for a variety of reasons. For example, the City may reasonably limit the ability to use a sound amplification system in a residential area in order to avoid disturbance of the peace. So long as the City applies its rules equitably the relevant criteria can be met. Signs are a form of speech and are subject to similar protections. There are many nuances of speech protection which are beyond the scope of this report. Signs are different from much other speech in that: they do occupy space on a typically long term basis; they are exclusive in that they prevent other signs from occupying the same space; they are exposed to all those who pass by whether or not the passersby are seeking the information being communicated; their primary audience is usually on land legally 136 #Z-11021 City Initiated UDO Text Amendment Staff Report 8 separated from the sign’s host site; and they have the potential to influence physical occurrences such as car accidents due to their location and/or ability to distract drivers or blocking the ability to see another sign or other location. Signs are speech which share many characteristics with physical land uses. 1) Is the regulation content neutral: The proposed regulations solely govern location and other physical attributes of the sign itself. The code administrator does not need to know the content of the sign in order to determine if the regulations have been met. No favor is given to any message over another. As the regulation is content neutral there is no distinction or restriction between the application of the regulation on either non-commercial or commercial speech. 2) Is the regulation viewpoint neutral: Since the proposed regulation is content neutral it is also viewpoint neutral. No judgment on the specific message of the sign will be called for to determine if the sign meets the physical standards of the regulations. “The TPM [time, place, manner] test is appropriately applied to ordinances which seek to regulate all types of signage in content and viewpoint-neutral fashion.” A Legal and Technical Exploration of On-Premise Sign Regulation: An Evidence Based-Model Sign Code, Urban Design Associates The proposed regulation does regulate the place and manner of a sign, it does not regulate timing of the sign itself or procedures related to the processing of a sign application. 3) Time: The sign application review process is clearly defined and generally administrative with specified approval steps and durations allowed for timely review and final action. The proposed regulation places no restriction on time for use of the sign. The sign may be physically present in an approved location at all times of day and year after it is approved. The proposed amendment expands the total amount of potential sign area which could be displayed without need for a permit. There are no restriction on hours of operation for the sign. There is a general requirement in existing regulations for abandoned signs to be removed. 4) Place: There are no changes to the location or setbacks where a sign may be displayed. 5) Manner: There are no changes in the types of sign which can be displayed. There is a clarification with the creation of a definition for a mural which more clearly allows for artistic expression without a need for review as a sign. As a mural is excluded from the sign regulations the sign criteria do not apply. STAFF FINDINGS/CONCLUSION Planning Staff has reviewed this application for a Unified Development Ordinance text amendment against the criteria set forth in statute and reflected in the Unified Development Ordinance. Staff’s analysis finds that this application complies with or is neutral to the required criteria. Pursuant to Sections 76-2-304, Montana Codes Annotated, the Zoning Commission shall review the Unified Development Ordinance text amendment application to determine if the proposed zoning change met the requirements of the adopted Growth Policy, state statute, and other adopted state and local ordinances. The Zoning Commission recommends approval of the Unified Development Ordinance text amendment in whole. The Bozeman Zoning Commission consideration was only for those criteria specified in Section 76-2-304, MCA. The Zoning Commission is not asked to make findings on the additional review criteria, only those from Section 76-2-304, MCA. The additional criteria are provided in this report for information and disclosure of the issues. The City Commission will be required to make findings on all criteria. 137 #Z-11021 City Initiated UDO Text Amendment Staff Report 9 PUBLIC COMMENT No public comment had been received when this report was prepared. In the case of protest against these changes signed by the owners of 25% or more of either of the area of the lots included in the proposed change; or those lots 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two-thirds of the present and voting members of the City Commission. ATTACHMENTS Application form Initial draft of Ordinance 1804 showing the proposed amendments Graphics depicting information on how the proposed sign changes may occur Zoning Commission Resolution Z-11021 Ord. 1804 (to be attached prior to City Commission action) Zoning Commission draft minutes (to be attached prior to City Commission action) 138 Page 1 of 3 RESOLUTION #Z-11021 RESOLUTION OF THE CITY OF BOZEMAN PLANNING BOARD RECOMMENDING APPROVAL OF AN APPLICATION FOR A UNIFIED DEVELOPMENT ORDINANCE TEXT AMENDMENT APPLICATION THAT WOULD CREATE CHAPTER 2.65 ZONING COMMISSION DESCRIBING DUTIES, COMPOSITION, AND RELATED MATTERS FOR A MUNICIPAL ZONING COMMISSION; AMEND CHAPTER 18.28 NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT TO CREATE CERTAIN EXEMPTIONS FROM REQUIREMENT TO OBTAIN A CERTIFICATE OF APPROPRIATENESS BEFORE BEGINNING CONSTRUCTION AND CLARIFYING TEXT OF THE CHAPTER; REPLACE ENTIRELY CHAPTER 18.34 SITE PLAN REVIEW TO CLARIFY TEXT, INCLUDE SITE PLAN PHASING, LIMIT DURATION OF SPECIAL TEMPORARY USE PERMITS, ALLOW GREATER FLEXIBILITY OF MODIFICATION TO CONDITIONAL USE PERMITS, CAP THE MAXIMUM DURATION OF MASTER SITE PLAN APPROVALS; AMEND SECTION 18.42.170, TRASH AND GARBAGE ENCLOSURES TO REQUIRE CONTAINMENT OF CONSTRUCTION DEBRIS; AMEND CHAPTER 18.50 PARK AND RECREATION REQUIREMENTS AND SPECIFICALLY SECTION 18.50.030 CASH DONATION IN- LIEU OF LAND DEDICATION TO MODIFY HOW THE REQUIREMENT FOR PROVISION OF PARKLAND IS HANDLED IN THE B-3, CENTRAL BUSINESS DISTRICT; AMEND CHAPTER 18.52 SIGNS, INCLUDING BUT NOT LIMITED TO SECTION 18.52.020 TO EXEMPT MURALS FROM REGULATION AS SIGNS, SECTION 18.52.050 TO MODIFY DETERMINATION OF WINDOW SIGN AREA, SECTION 18.52.060 TO MODIFY THE FORMULA FOR DETERMINING ALLOWED SIGN AREA ON A LOT, AND SECTION 18.52.130 ADDING A CROSS REFERENCE TO CITY STANDARDS FOR ADDRESSING; AMEND SECTION 18.64.010 TO ALLOW THE PLANNING DIRECTOR TO APPROVAL MASTER SITE PLANS; AMEND SECTION 18.64.160 VIOLATION-PENALTY-ASSISTING OR ABETTING- ADDITIONAL REMEDIES TO CLARIFY APPLICATION OF EXISTING ENFORCEMENT OPTIONS AND AUTHORIZING RECORDING OF ACTIONS TO RESOLVE NON-COMPLIANCE; CREATE A NEW SECTION 18.80.1945 DEFINING A MURAL; AND AMEND SECTION 18.80.3210 THE DEFINITION OF WINDOW SIGN. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map through its Unified Development Ordinance pursuant to Sections 76-2-301, and 76-2-302 M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning regulations if a public hearing is held and official notice is provided; and 139 Page 2 of 3 WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning regulation amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by ordinance and definition in Section 18.80.3250; and WHEREAS, Chapter 18.68 of the Bozeman Unified Development Ordinance sets forth the procedures and review criteria for amendments to the text of Title 18, Unified Development Ordinance; and WHEREAS, the City of Bozeman applied for a Unified Development Ordinance text amendment, pursuant to Chapter 18.68 of the Bozeman Unified Development Ordinance, to modify multiple sections of the Unified Development Ordinance; and WHEREAS, the proposed text amendment request has been properly submitted, reviewed and advertised in accordance with the procedures set forth in the Bozeman Unified Development Ordinance and Title 76, Chapter 2, Part 3, M.C.A.; and WHEREAS, the City of Bozeman Zoning Commission held two public hearings on June 7, 2011, to formally receive and review all written and oral testimony on the proposed text amendments contained in draft ordinances 1804 and 1809; and WHEREAS, no members of the public submitted written or oral testimony on the proposed text amendments and two public agencies reviewed the draft text and supported the changes; and WHEREAS, the Zoning Commission discussed the offered comments and Staff’s suggested response and the proposed amendments; and WHEREAS, after considering staff’s recommendation and discussion amongst Zoning Commission members, the Zoning Commission found that the application complied with the Review Criteria; NOW, THEREFORE, BE IT RESOLVED that the City of Bozeman Zoning Commission officially recommends on a vote of 3 to 0 to the Bozeman City Commission that the City Commission adopt the recommended amendments in draft Ordinance 1804; and BE IT FURTHER RESOLVED that the City of Bozeman Zoning Commission officially recommends on a vote of 3 to 0 to the Bozeman City Commission that the City Commission adopt the recommended amendments in draft Ordinance 1809. DATED THIS DAY OF , 2011, Resolution #Z-11021 140 Page 3 of 3 _____________________________ ____________________________ Tim McHarg, Director Ed Sypinski, Chairperson Dept. of Planning & Community Development Bozeman Zoning Commission 141 ZONING COMMISSION MINUTES TUESDAY, JUNE 7, 2011 ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Sypinski called the meeting to order at 6:04 p.m. and ordered the Recording Secretary to take attendance. Members Present: Ed Sypinski, Chairperson Nathan Minnick, Vice Chairperson David Peck City Commission Liaison Chris Mehl Members Absent: Staff Present: Chris Saunders, Assistant Planning Director Tara Hastie, Recording Secretary Guests Present: Kelly Kapinos Kip Kapinos ITEM 2. PUBLIC COMMENT {Limited to any public matter within the jurisdiction of the Zoning Commission and not scheduled on this agenda. Three-minute time limit per speaker.} Seeing there was no general public comment forthcoming, Chairperson Sypinski closed this portion of the meeting. ITEM 3. MINUTES OF MAY 17, 2011 MOTION: Vice Chairperson Minnick moved, Mr. Peck seconded, to approve the minutes of May 17, 2011 as presented. The motion carried 3-0. Those voting aye being Chairperson Sypinski, Mr. Peck, and Vice Chairperson Minnick. Those voting nay being none. ITEM 4. PROJECT REVIEW Chairperson Sypinski reversed the order of the items under project review. 2. U.D.O Edits ZCA #Z-11021 – Ordinance #1804 City initiated code changes to create Chapter 2.65 Zoning Commission and to amend Sections 18.28.010.A - Intent and Purpose, 18.28.040 - Certificate of Appropriateness, 18.28.070 - Deviations from Underlying Zoning Requirements, Page 1 of 5 Zoning Commission Minutes – June 7, 2011 142 18.28.090 – Appeals, 18.42.170 – Trash and Garbage Enclosures, 18.50.030 - Cash Donation In- lieu of Land Dedication, 18.64.160 - Violation - Penalty - Assisting or Abetting - Additional Remedies, 18.66.030.C - Filing of Notice of Appeal, 18.66.040.A – Administrative Interpretation Appeals, 18.70.030 - Public Hearing Procedures and Requirements, 18.80.1945 – Mural, 18.80.3210 – Window Sign. Additional sections may be amended which are relevant to the same topics if a need to do so is identified during the public review process. (Saunders) Assistant Planning Director Chris Saunders presented the Staff Report noting the draft ordinance and Staff report were available on the City’s website along with the notice for the proposal. He stated the proposed ordinance would put the Zoning Commission under the same statutory organization as other main advisory bodies and would define membership as well as jurisdiction. He stated the City was a self governing power which can mean there is additional flexibility, but for Zoning the City must comply with the State requirements of authorizing statute. Assistant Director Saunders stated the Historic Preservation Advisory Board and Staff had discussions regarding the proposed amendment to exempt certain types of work from the Certificate of Appropriateness review process; he stated the exceptions were limited and addressed roofing, fencing, smaller scale accessory buildings, and egress windows in the older part of Bozeman. Assistant Director Saunders noted that a provision to corral construction waste would also be included due to the number of complaints regarding construction debris. He noted modifications to required parkland were also being proposed for the B-3 zoning district downtown and would include a default option for cash-in-lieu and the approval authority would be delegated to the Planning Director. He stated the purpose for the combination of changes was to simplify the review process and requirements for downtown Bozeman. Assistant Director Saunders stated that there was a group of edits pertaining to signage; the definition of a mural had been created and the proposed language more clearly indicated what would be a mural so it could be exempted from requirements and what was signage so there was no question when each definition applied. He directed the Zoning Commission to examples of window signage downtown to better depict what was being discussed. He noted the window divisions would play a factor in the allowable window signage amount. Chairperson Sypinski asked for clarification that each pane separated by a division of 4 or more inches would be aggregated in the calculation. Assistant Director Saunders responded Chairperson Sypinski was correct though each pane could be calculated individually. He added there were also proposed amendments to modify the allowable sign area as well as the sign area for secondary building frontages; the purpose was to find ways of counteracting a bias in the language as it exists and would encourage more of a streetscape with buildings being more closely presented to the street. He cited an example of a signage calculation under the current restrictions and noted the proposed code would allow 2 square feet for the first 50 feet instead of 1.5 square feet; it would make a significant difference for smaller buildings. He stated the sign area calculations for B-1 and R-O district would be modified for multi-tenant buildings as well as the requirements for a Comprehensive Signage Plan. Assistant Director Saunders stated the way the City would handle enforcement of zoning violations would also be clarified while zoning protests would be amended to reflect new Page 2 of 5 Zoning Commission Minutes – June 7, 2011 143 changes in State Law. He added the evening’s meeting was the first of two public hearings that had been scheduled for the proposal. He stated no public comment had been received for the proposal and the Historic Preservation as well as the Parks and Recreation Advisory Board Subdivision Committee were also supportive of the amendments; Staff would meet with the full Recreation and Parks Advisory Board later in the week. Chairperson Sypinski suggested the Northeast Urban Renewal and North Seventh Urban Renewal Boards should also be consulted. Attorney Cooper stated existing subsection 18.64.160.E.2 required the City to release any pre- recorded non-compliance notice and asked why it had been proposed a second time. Assistant Director Saunders responded they were two different items and the proposed would address issues that had been resolved; the intent was to make a notice that the parcel had been reviewed and what had been approved prior to someone’s purchase arrangements. Chairperson Sypinski opened the item for public comment. Seeing none forthcoming, the public comment period was closed. Vice Chairperson Minnick stated he thought the proposal was clear and stated he was supportive of the amendments as proposed; he added the Certificate of Appropriateness and sign amendments would really help expedite the process and would make signage more beneficial to local business owners. Chairperson Sypinski stated it was important to note that sections 1 & 6 as well as 8-18 were City wide while sections 2-5 were specific to the Conservation Overlay District, and some were specific to downtown Bozeman. He stated he found the application to be in keeping with the review criteria as set forth in the U.D.O. and would possibly improve some of the conditions set forth in the review criteria. He stated he was supportive of the proposal with Staff findings as outlined in the Staff Report. MOTION: Vice Chairperson Minnick moved, Mr. Peck seconded, to forward a recommendation of approval to the City Commission for U.D.O. Edits ZCA #Z-11021 – Ordinance #1804 with Staff findings as outlined in the Staff Report. The motion carried 3-0. Those voting aye being Chairperson Sypinski, Mr. Peck, and Vice Chairperson Minnick. Those voting nay being none. 1. U.D.O Edits ZCA #Z-11021 – Ordinance #1809 Chapter 18.34 Site Plan Review to clarify text, include site plan phasing, limit duration of special temporary use permits, allow greater flexibility of modification to conditional use permits, cap the maximum duration of master site plan approvals and to amend Section 18.64.010 to allow the Planning Director to approve master site plans. Additional sections may be amended which are relevant to the same topics if a need to do so is identified during the public review process. (Saunders) Assistant Planning Director Chris Saunders presented the Staff Report noting Staff had been doing ongoing monitoring of the ordinance and had identified necessary changes. He stated the decision making authorities would be modified with regard to the City Commission, Board of Adjustment, and Planning Director. He stated the proposal included an allowance for the Planning Director to approve Master Site Plans if they had no Variances or Deviations proposed. Page 3 of 5 Zoning Commission Minutes – June 7, 2011 144 Assistant Director Saunders stated the creation of procedures to review zoning based development would never cause a deed to transfer land title to be filed with the Clerk and Recorder’s Office. He stated the amendments would expand the master site plan use for phasing of development. Assistant Director Saunders stated there would be modifications to the threshold for the review of the Design Review Board as the parking allocations were usually the trigger; a 90 space threshold would be more appropriate. He stated Special Temporary Use Permits would be restricted to one year increments and clarification of the reuse and redevelopment procedures had been included so it was clear they would be sketch plans. Assistant Director Saunders stated phasing would be included in several sections to provide clarity. He stated several sections had been consolidated as they were pertinent to the Conditional Use Permit process; modification to CUP approval would be handled as though it were a modification to an approved Final Site Plan. He added criteria for approval extensions and clarity of time frames for approvals would also be included. Mr. Mehl asked how Staff had decided on a five year approval. Assistant Director Saunders responded longer term approval seemed reasonable for phased developments and the language had been included in the original text. Assistant Director Saunders stated the City had been developed long before modern requirements had come about and noted Staff was modifying reuse/redevelopment procedures with regard to how aggressive the City should be on existing site circumstances. He stated the hearings had been noticed and other advisory bodies that would be impacted had been included. He stated Staff was supportive of the amendments and felt they met the criteria as set forth in the UDO. Chairperson Sypinski opened the item for public comment. Seeing none forthcoming, the public comment period was closed. Chairperson Sypinski stated a number of comments had been provided by the Zoning Commission at the Work Session discussion and added he felt more comfortable moving the proposal forward. He stated he felt the application was in keeping with the review criteria as set forth in the ordinance. Mr. Mehl asked for clarification of the City Commission’s right to reclaim jurisdiction of a project. Assistant Director Saunders responded that once the City Commission reclaimed jurisdiction, the Planning Director could not make a decision and the City Commission would have the approval authority, which could be appealed by the applicant. MOTION: Vice Chairperson Minnick moved, Mr. Peck seconded, to forward a recommendation of approval to the City Commission for U.D.O. Edits #Z-11021 – Ordinance #1809. The motion carried 3-0. Those voting aye being Chairperson Sypinski, Mr. Peck, and Vice Chairperson Minnick. Those voting nay being none. Page 4 of 5 Zoning Commission Minutes – June 7, 2011 145 Page 5 of 5 Zoning Commission Minutes – June 7, 2011 ITEM 5. NEW BUSINESS Chairperson Sypinski stated an application had been submitted to the City Commission for a new Zoning Commission member. ITEM 6. ADJOURNMENT The Zoning Commission meeting was adjourned at 7:05 p.m. Edward Sypinski, Chairperson Chris Saunders, Assistant Planning Director Zoning Commission Dept. of Planning & Community Development City of Bozeman City of Bozeman 146 BHPAB 2011 May 26 - Page 1 of 4 Security Bank model. Historic Preservation Advisory Board at the HRDC Building – 26 May 2011 Members Present: Mark Hufstetler (Chair), Jecyn Bremer, Bruce Brown, Lesley Gilmore (Secretary), Jared Infanger, Steve Keuch, Courtney Kramer (City Liaison), Dale Martin, Boone Nolte, and Ryan Olson, - Quorum established. Absent: Crystal Alegria, Lora Dalton, Jane Klockman, Paul Reichert, and Anne Sherwood. Guests: Carson Taylor, City Commissioner Liaison I. Meeting was called to order at 6:47 pm. II. Minutes from prior meeting: A. Motion to approve was made by JC. B. Motion was seconded by BN. III. Public Comment: None. IV. Ex Parte Communication: None. V. Introduction of Invited Guests: None. VI. Project Review and Recommendations to Staff: A. Proposed Reviesions to COA guidelines - RO recommends the revisions with two modifications. 1. Change the name “sheds” to “accessory buildings.” 2. Under A.1. b. add missing comma 3. The Board unanimously approved the revisions with these modifications. B. Tax abatement submittal for 308 S. Tracy (which expanded into a general discussion about the abatement process): 1. CK and MH talked about how to address this. Current thought is to submit a memo from the Professional Subcommittee to the commission. 2. The process hasn’t worked too well in the past, reflecting uncertainty as to the process. 3. This process will provide valuable information to the owner, and defer final review to the owner to during the construction process. 4. RO: is the idea that the homeowner would come to the professional subcommittee? MH: this is an interim process until we come up with a process that is less prone to subjective opinion. 147 BHPAB 2011 May 26 - Page 2 of 4 Security Bank model. 5. MH: idea is to have staff provide the professional committee with more information; committee will not be meeting with the homeowner directly. 6. Professional committee has given comments to the staff, who will give it to the homeowner with provisional approval, based upon final review. 7. CK: it would be unwieldy for an applicant to be subject to a review that only occurs once per month (based on professional subcommittee review). 8. RO would hate to have someone come in at the end and feel that there were other issues that should have been addressed. 9. JB: this process wouldn’t address the comments of the full board until perhaps too late. 10. MH: this is a short-term process until the process is corrected, to be more efficient and more helpful. We need to address the issue of the ordinance. 11. JB: how was this taken off the agenda? Homeowner processed the application. 12. RO is concerned about how badly the board and city look with this process. And what really is our plan to rectify this on-going issue? 13. MH: the avenue of difficulty is: a) Cool looking projects – we have taken a back seat. b) We need to have more information provided – hopefully the ordinance and planning staff will provide this. 14. CK: ordinance modification will include requirement for more information from the homeowner. And probably a staff report. 15. MH doesn’t want the professional subcommittee to have to meet frequently to review these projects. 16. CK: have staff review the applications. Then have the professional committee and the board approve as consent agenda item. 17. CK will submit a word document on the ordinance, for all to comment on. 18. MH: should we implement a moratorium of tax abatements? a) RO: we might be doing more harm than good. Should we enact a moratorium? b) 308 S. Tracy – they applied before the moratorium, so should still have the chance to continue their application. c) CT: How can the commission say we’ll have a moratorium? It’s an ordinance that people want to rely on. Either you’re telling people to put their project off for 6 months, or we’re going to change the rules. d) JB: The timing is awkward, as this is the construction season. And, given that this is an advisory board and not a regulatory board, we should probably not have a moratorium. 19. LG: Haven’t we agreed that the ordinance clearly states that these are only for exceptional projects? 20. MH: doesn’t want any more of these to come before the full board and have the Board look disorganized and conflicted. 21. RO: we should be frank with the applicants that we’re muddling through this process. 22. JB: But this is spirited debate and will continue to be. 23. MH: Let’s be fully pragmatic and have the subcommittee review the applicants. Then, after the construction is completed, the full board will vote on it. Subcommittee to present a provisionary memo, to be reviewed upon completion. Shouldn’t approve a project until complete. 24. CK: Modification to the ordinance will not be able to be prepared by city staff. 25. MH: P&P meeting, inviting all interested parties, to review and modify the ordinance. Lora is out of town. She suggested June 14, Tuesday, at 6:30pm. LG offered to host at CTA’s office at 411 East Main Street, Suite 101. 148 BHPAB 2011 May 26 - Page 3 of 4 Security Bank model. VII. Chair’s Report (MH) A. Preservation board reappointment and seats: 1. CK said the Aimee will contact members about their expirations. 2. CK will check with Aimee about which categories members should consider. B. Streetlights 1. Highway signs: Have been installed. Pat CK on the back. 2. Streetlights: Are installed, but not as good as they could be. Just weren’t able to get the color right. Look glossy and all 20th century. CK noted that there was an additional shield that can be installed, to shield the light from the homeowners. Homeowners can request shields. a) The old lights? BB is trying to salvage and has contacted the city. b) City is providing one to each household, but no one has come to collect them. They weigh about1300 pounds a pieces, lots of globes broken. c) MH: Should some come to Story Mansion, to replace some of the big tall insensitive lights? Nice to have 3-4 old ones – would improve the appearance and support the historic character of the property. d) CT will talk with Chuck Winn and CK will talk with the Friends of the Story. Act quickly – they might be broken during the remainder of the removal. e) CK asked Bruce to help them get shields for his parking lighting to comply with the night sky ordinance. VIII. Policy and Planning Committee (as relayed by MH) A. North 7th Urban Renewal Board Meeting: MH and LD gave a presentation to them about signs. It seems that the renewal board embraces a different more sterile vision than the HP board does. B. CK: the North 7th Board was generally supportive of the idea. They liked the notion that someone was thinking about them. C. CK: North 7th said that a lot of people have said they don’t want to remodel their properties since they would be required to change their signs. Could be an excuse for just not wanting to remodel. IX. Education and Outreach Committee A. RO: Committee is focusing on historic resource inventories in lieu of meetings, however weather has not been conducive. B. MH: Go surveying. Let the full group know – we’d like to participate. CK: wrap it around a BBQ. A Thursday night in June? June 21? At Beall Park, E&O will figure it out. X. Staff Liaison Report A. CK: Installation of brown historic district signs is imminent – next two weeks. The signs have been made and paid for. Will have a ribbon cutting concurrent with that for the highway signs. B. CK: Board budget – receives $2500 per year. Due to good budgeting, and help from the Beautification Board, we have $1410 remaining. Use it or lose it. 1. Slides to be digitized – about 300. $1/slide by F11. MH: Also contact the Pioneer Museum to see if they have some to add. John Russell is working on digitizing their images, but won’t be making them available on the website; but they’d be happy to have digitizations of ours, and to lend us some for digitizing. CK says they do need our money. They don’t traffic in high resolution images. 149 BHPAB 2011 May 26 - Page 4 of 4 Security Bank model. 2. Historic plaques fees from SHPO. Fee is about $65/plaque. MH – let’s check with the SHPO; they typically don’t accept payment for the sign until sign has been delivered. a) LG recommended that it be only for public entities, so there isn’t an unfair advantage for one private owner over another. Pioneer Museum, the Emerson, ???? or Main Street as a whole. Willson, Hawthorne, Longfellow, Irving Schools. Courthouse. b) RO: Could we make one for the horse? Would have to nominate it – document it and amend it to the HD??? 3. RO: Are there historic structures that need any sandbags? The Eagles? 4. JB: Are there walking tour pamphlets available? An older one that hasn’t been printed for ages – not sure where it’s at. There is currently one at the Downtown Business Association. CK has copies of all of them. MH: There’s also an old 1970’s South Willson brochure. Summer is a good time to distribute them. 5. RO: Any way to market this money for potential action later – can we earmark this for a revolving fund for urgent historic preservation needs? 6. JB: Could some of the money be used for the perfect survey form for the survey form for the volunteers to use. MH: there are reconnaissance level forms, and intensive level forms. We’re just doing reconnaissance level. DK: it would be helpful to do several different architectural styles. Examples of different styles. MH doesn’t think we should hire someone for that. Sounds like a good education session – find representative examples of each style. 7. CK: She will provide an update to the Board on these potential expenditures later. C. Next year’s budget: Can we include a Podcast for our brochures in next year’s budget? CK will look at. D. CK recommended an idea of Spokane newspaper then-now photos to Amanda Rickert at the Bozeman Chronicle, who responded positively to CK’s request to incorporate this idea into the Chronicle. E. Grant applications: submitting one June 1 for MT preservation funds for the Northern Pacific Depot. F. No news on East Willson School. Will begin working on the feasibility study later this summer. G. MH: Would still like to get a tour of the East Willson School. H. MH: Let’s tour the Neutra House. I. LG: The modernism survey, funded by SHPO, has been completed. There was a limited printing run (due to expense), so copies were only provided to owners of properties included in the survey. An electronic version will be available on the MT SHPO website in the future. J. Grants: Can’t go for the Ordin grant because it’s for communities less than 30,000. XI. Motion to adjourn at 8 pm– by RO, seconded by JB. END OF MINUTES Secretary: Lesley M. Gilmore 150 community planning zoning subdivision review annexation historic preservation neighborhood planning urban design GIS CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net MEMORANDUM TO: SANDY DODGE FROM: CHRIS SAUNDERS RE: POSSIBLE CHANGES TO CHAPTER 18.50, PARKS AND OPEN SPACES DATE: MARCH 7, 2011 The City Commission has requested the Planning Department to consider some possible changes to park dedication requirements. This is being generated by the commentary on park fees on page 39 of the Downtown Plan, see copy of text below. “PARK FEE It is very unusual for development within any downtown to be charged a fee for parks. This is for several reasons. First, parkland is most usually needed on the outer edge of a community where families with children are settling. Downtowns do not typically attract that demographic and thus if development is charged such a fee, in a sense it is subsidizing edge development. This is contrary to planning principles involving infill. Second, downtowns usually already have, or are close to, existing parks with sufficient capacity for more use; rarely are entirely new parks needed. Finally, the people who live in, work in, and visit downtowns use public space differently. They tend to use the sidewalks, cafes and coffeehouses for relaxing, passive recreation and socializing. In some ways parks are superfluous. We recommend this fee be specifically dedicated to the downtown district and used as a funding source for the “green” strategies outlined in this plan; improving sidewalks, greening streets and alleys, creating small parks along Bozeman Creek, and creating or improving other public spaces and facilities within the downtown.” There are also other elements of the Downtown plan that discuss development of green spaces which may include parks. The Commission has also adopted the following goals to be pursued in 2010-2011. Items 3 and 5 are also seen as being affected by park dedication requirements. “1) Enhance Downtown Development Opportunities 1. Utilize the federal HUD grant for the blast site (Finance, CM) 2. Conduct a "Full cost & benefit study: social, economic & traffic considerations for one-way conversion to 2-way, shared lanes, streetscape improvements and truck route modifications" as recommended by the Downtown Plan. (Engineers) 3. Increase density in the B-3 district. Bozeman Community Plan (BCP) Implementation Policy 8, 9, 16, 21a, 22, 27, 81. (Planning - Krueger) 4. Implement the remaining parking recommendations identified in the downtown plan and review and update for the Downtown Parking SID/Cash-in-lieu program. BCP Implementation policies 2, 3, 9, 10, 11. (Planning - Bristor, Parking) 151 Page 2 5. Amend UDO to incentivize downtown redevelopment and the construction of multi-story buildings (Planning - Riley)” In considering options to address this direction Staff has identified several possibilities. These are summarized below and the attached text has an initial cut at the actual language. Please note that the draft text reflects ALL of the options and therefore, some will be removed before adoption. Options: A. Leave as is. B. No requirement for park dedication within the B-3 zoning district no matter how many units are proposed. C. Exempt the first five new dwellings in a project from dedication requirements (somewhat mirrors the exemption for minor subdivisions). D. Make specific that there is no land required, only cash-in-lieu. Delegate approval authority for review and acceptance of cash-in-lieu to the Planning Director. This shortens the review process and eliminates unnecessary effort. E. Follow the normal cash-in-lieu procedures but adopt a fixed percentage reduction across the board. F. The City Commission could pre-designate all cash-in-lieu received to certain projects like improving Bozeman Creek. This would likely not be code but a separate resolution or other action and is not shown in the attached text. Notes: Discussed options with RPAB subdivision review committee on March 11, 2011. Four members present. Committee preference is for combination of options D and F to both focus benefits and simplify the review process for zoning projects. 152 Page 1 of 16 ORDINANCE NO. 1804 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY ADDING A NEW CHAPTER TO BE NUMBERED CHAPTER 2.65, SETTING FORTH THE DUTIES AND POWERS OF THE ZONING COMMISSION, AND REVISING CHAPTER 18.28, SECTION 18.42.170, SECTION 18.50.030 SECTION 18.52.020, SECTION 18.52.060, SECTION 18.52.130, SECTION 18.64.010, SECTION 18.64.160, ADDING A NEW SECTION 18.80.1945, AND TO AMEND SECTION 18.80.3210. WHEREAS, the City of Bozeman has adopted a Unified Development Ordinance which establishes common standards for zoning development; and WHEREAS, the proposed Unified Development Ordinance text amendment application has been properly submitted, and reviewed, and all necessary public notice was given for all public hearings; and WHEREAS, the Bozeman Zoning Commission held a public hearing on June 7, 2011 to receive and review all written and oral testimony on the request for a Unified Development Ordinance text amendment; and WHEREAS, no members of the public offered comments on the proposed amendments; and WHEREAS, as shown in Zoning Commission Resolution Z-11021, the Bozeman Zoning Commission recommended to the Bozeman City Commission that the proposed Unified Development Ordinance text amendments be approved; and WHEREAS, after proper notice, the City Commission held a public hearing on June 27, 2011, to receive and review all written and oral testimony on the request for a text amendment to the Unified Development Ordinance; and 153 Page 2 of 16 WHEREAS, the City Commission reviewed and considered the relevant Unified Development Ordinance text amendment criteria established by Section 76-2-304, M.C.A., and found the proposed Unified Development Ordinance text amendment to be in compliance with the purposes of the title as locally adopted in Section 18.02.040, BMC, and that the amendments would yield a superior outcome for the community than the text as presently exists; and WHEREAS, at its public hearing, the City Commission found that the proposed Unified Development Ordinance text amendment would be in compliance with Bozeman’s adopted growth policy and applicable statutes and would be in the public interest. NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman, Montana, that: Section 1 That Title 2, Administration, of the Bozeman Municipal Code be amended by adding a new chapter to be numbered Chapter 2.65 to read as follows: 2.65 CITY ZONING COMMISSION 2.65.010 ESTABLISHED--POWERS AND DUTIES. Pursuant to and under the provisions of Title 76, Montana Code Annotated, the city commission of the city does create and establish a city MUNICIPAL zoning commission to be known as the "Bozeman zoning commission" as provided in the title, and does by this chapter adopt all of the sections of the laws of Montana previously mentioned that specifically pertain to a city MUNICIPAL zoning commission, granting and delegating to the Bozeman zoning commission all of the rights, privileges, powers, duties and responsibilities thereto appertaining. 2.65.020 JURISDICTION. The Bozeman zoning commission shall have such jurisdiction as provided by state law. 2.65.030 COMPOSITION. The Bozeman zoning commission shall consist of five members, appointed to two year terms to expire as follows: A. Two members appointed by the City Commission . The appointments shall be for two- year terms, with those terms to expire on February 28 of even-numbered years ; B. Three members appointed by the City Commission . The appointments shall be for two- year terms, with those terms to expire on February 28 of odd-numbered years; C. Alternates. The City Commission may designate up to two members of the City Planning Board who, only in the event that the zoning commission does not have an available quorum, may act as an alternate member to enable the zoning commission to conduct business. 154 Page 3 of 16 D. The City Clerk shall certify the members appointed by the City Commission. The certificates shall be sent to and become a part of the records of the Bozeman zoning commission. Section 2 Section 18.28.010.A of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.28.010 INTENT AND PURPOSE A. All new construction, alterations to existing structures, movement of structures into or out of the neighborhood conservation overlay district, hereinafter referred to as the conservation district, or demolition of structures by any means or process will be subject to design review unless specifically exempted. The recommendations of the Design Review Board or Administrative Design Review staff shall be given careful consideration in the final action of the Planning Director or City Commission review authority. Section 3 Section 18.28.040 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.28.040 CERTIFICATE OF APPROPRIATENESS A certificate of appropriateness, received from either the Planning Director or the City Commission after recommendation by the Administrative Design Review staff or Design Review Board, shall be required before any and all alteration(s) other than those specifically exempted in subparagraph A or repair as defined in Chapter 18.80, are undertaken upon any structure in the conservation district. For alterations not requiring City Commission approval, compliance with the Planning Director’s decisions will be mandatory subject to appeal to the City Commission as set forth in Chapter 18.66, BMC. The review authority for certificates of appropriateness is established in Chapter 18.64, BMC. Compliance with the terms of the final decision is required. The Montana Historical and Architectural Inventory Form shall be reviewed and, if necessary, updated by the historic preservation staff to reflect current conditions on the site, prior to the review of the proposal. Application procedures are as follows: A. No building, demolition, conditional use, sign or moving permit shall be issued within the conservation district until a certificate of appropriateness has been issued by the appropriate review authority, and until final action on the proposal has been taken. 1. Limited Exceptions. The following construction located within the Neighborhood Conservation Overlay District, within an established historic district, or at a site which is Individually Listed on the National Register of Historic Preservation, does not require a certificate of appropriateness if the project satisfies the following standards: a. Fences meeting all other provisions of this title (e.g. height limitations, street vision triangle, finished side out, etc. per 18.42.130, BMC) which are built of wood, wrought-iron, or any other non-synthetic material and 155 Page 4 of 16 whose construction allows “transparency” as set forth in Chapter 3, Section F of the design guidelines referenced in paragraph 18.28.050.D, BMC. CHAIN LINK FENCING IS NOT INCLUDED IN THIS EXCEPTION. b. Basement egress windows whose window material and configuration is present elsewhere in the structure, and whose window wells are not on the front or corner-side yard elevation of the structure, and which do not establish or provide egress from an illegal dwelling unit. c. Accessory structures under 120 square feet AS MEASURED FROM THE OUTER EDGE OF THE EXTERIOR WALLS, which meet the setback requirements, ARE NOT MORE THAN 14 FEET TO THEIR HIGHEST POINT and which do not require a building permit. d. Alterations in roofing material, if installing wood shingle, slate, tile, or asphalt shingle material, and no changes are made to the roof shape, pitch or slope. B. Application, review and public notice procedures for proposals located within the conservation district are set forth in Chapter 18.34, BMC, Review Procedures for Site Development, Chapter 18.62, BMC, Development Review Committee, Design Review Board, Administrative Design Review and Wetlands Review Board and Chapter 18.76, BMC, Noticing. If the demolition or movement of structures or sites subject to the conservation district requirements is proposed, the procedures in §18.28.080, BMC shall apply. C. A denial of a certificate of appropriateness shall be accompanied by a written statement of reasons for the denial. D. The architectural designs of individual workforce housing units used to satisfy the requirements of Section 17.02.030, BMC and meeting the requirements of Section 17.02.060.A.13, BMC are exempt from the review requirements of this chapter. This exemption does not extend to removal or alterations of existing structures. Section 4 Section 18.28.070 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.28.070 DEVIATIONS FROM UNDERLYING ZONING REQUIREMENTS Because the development of much of historic Bozeman preceded zoning, subdivision and construction regulations, many buildings within the conservation district do not conform to contemporary zoning standards. In order to encourage restoration and rehabilitation activity that would contribute to the overall historic character of the community, deviations from underlying zoning requirements may be granted as described in Chapter 18.66, BMC.by the City Commission after considering the recommendations of the Design Review Board or Administrative Design Review staff. The criteria for granting deviations from the underlying zoning requirements are: 156 Page 5 of 16 A. Modifications shall be more historically appropriate for the building and site in question and the adjacent properties, as determined by the standards in §18.28.050 of this chapter, than would be achieved under a literal enforcement of this title; B. Modifications will have minimal adverse effect on abutting properties or the permitted uses thereof; and C. Modifications shall assure the protection of the public health, safety and general welfare. Approvals may be conditioned to assure such protection, and such conditions may include a time period within which alterations will be completed; landscaping and maintenance thereof; architectural, site plan and landscape design modifications; or any other conditions in conformity with the intent and purpose set forth in this chapter. Section 5 Section 18.28.090 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.28.090 APPEALS Aggrieved persons, as defined in Chapter 18.80, BMC, may appeal the a final decision of the review authority of the Planning Director or City Commission pursuant to the provisions of Chapter 18.66, BMC. In such event, the issuance of a certificate of appropriateness shall be stayed until the appeal process has been satisfied. Section 6 Section 18.42.170 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.42.170 TRASH AND GARBAGE ENCLOSURES A permanent enclosure for temporary storage of garbage, refuse and other waste materials shall be provided for every use, other than single-household dwellings, duplexes, individually owned townhouse or condominium units, in every zoning district, except where a property is entirely surrounded by screen walls or buildings. Trash enclosures shall be constructed so that contents are not visible from a height of 5 feet above grade from any abutting street or property. Trash enclosures shall comply with the following regulations: A. Location. Trash enclosures, surrounding standard steel bins (dumpsters), shall be located on the site for convenient pickup service, and the location shall be shown on required site plans. Trash enclosures shall not be located in required front yards, and shall be situated so that containers can be pulled straight out of the enclosure or so the sanitation SOLID WASTE truck can back straight into it. The location of all trash enclosures shall be subject to review and approval by the City SOLID WASTE DIVISION Sanitation Department. B. Construction. Trash enclosures shall be constructed of solid or ornamental pierced masonry walls or other appropriate materials, with a solid concrete floor sloped for drainage and maintenance of sanitary conditions. Enclosures shall be architecturally compatible with the principle structure. Enclosures shall be of sufficient height to conceal contents, including containers, but in no case shall be less than 4 feet in height above grade. 157 Page 6 of 16 C. Exception. A garbage enclosure is not required for dumpsters accessed via an alley. D. Construction Enclosure. For applications other than those classified as Sketch Plan reviews per Section 18.34.050, BMC, the applicant shall designate a temporary enclosed refuse storage area on the site plan, including a typical detail with dimensions and type of materials, for the storage and collection of building material debris during the construction phase of the project, and that said debris area is shown accordingly on the final site plan. Section 7 Section 18.50.030 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.50.030 CASH DONATION IN-LIEU OF LAND DEDICATION A. The City Commission may determine whether the park dedication must be a land dedication, cash donation in-lieu of land dedication or a combination of both. When making this determination, the City Commission shall consider the following: 1. The desirability and suitability of land for parks and playgrounds based on size, topography, shape, location or other circumstances; and 2. The expressed preference of the developer. 3. Location of the site within the B-3 zoning district. The City Commission has determined that cash-in-lieu of land dedication is the preferred DEFAULT method to satisfy the requirements of 18.50.020.A within the B-3 zoning district. The approval authority of a development within the B-3 zoning district is as governed by Section 18.64.010 and use of the in-lieu provisions of this chapter do not require review of the project by the City Commission. B. When a combination of land dedication and cash donation in-lieu of land dedication is required, the cash donation may not exceed the proportional amount not covered by the land dedication. C. Cash donation in-lieu of land dedication shall be equal to the fair market value of the amount of land that would have been dedicated. For the purpose of these regulations, the fair market value is the value of the unsubdivided, unimproved land after it has been annexed and given an urban zoning designation. The City intends to obtain the highest value for cash-in-lieu of parkland that is allowable under Montana law. 1. It shall be the responsibility of the developer to provide an appraisal of the fair market value by a certified real estate appraiser of their choosing. The appraisal fee shall be the responsibility of the developer. 158 Page 7 of 16 2. When a land value must be established for cash-in-lieu of land dedication to satisfy the requirements of §18.50.020, BMC, and the value of the land in an unsubdivided, unimproved, but annexed and zoned condition can not reasonably be determined, the developer may provide an appraisal of residentially zoned property with a zoning designation that allows the density of dwellings proposed for development. 3. The appraisal provided for the purpose of §18.50.030, BMC shall be conducted not sooner than 90 days prior to the submittal of an application for final plat or final site plan approval. D. Where a cash donation has been accepted in-lieu of land dedication, the amount of cash donation shall be stated on the final plat or plan as appropriate. E. Where a cash donation has been accepted in-lieu of land dedication, the City Commission shall record in the meeting minutes or other written decision why the dedication of land for parks and playgrounds was undesirable. F. Use of Cash Donations. 1. The City Commission shall use a cash donation for development or acquisition of parks to serve the development. 2. The City Commission may use the cash donation to acquire or develop parks or recreational areas within its jurisdiction or for the purchase of public open space or conservation easements, only if: a. The park, recreational area, open space or conservation easement is within a reasonably close proximity to the proposed development; and b. The City Commission has formally adopted a Citywide park plan that establishes the needs and procedures for use of the cash donation. Section 8 Section 18.52.020 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.52.020 SIGN PERMIT REQUIREMENTS If a sign requiring a permit under the provision of this chapter is to be placed, constructed, erected or modified on a zone lot, the owner of the lot shall secure a sign and building permit prior to the construction, placement, erection or modification of such a sign. Furthermore, the property owner shall maintain in force, at all times, a permit for such sign. No permit of any kind shall be issued for an existing sign or proposed sign unless such sign is consistent with the requirements of this chapter. Murals as defined in Section18.80.1945, BMC are not subject to this chapter but may be subject to the provisions of Chapters 18.28 and 18.30, BMC. 159 Page 8 of 16 Section 9 Section 18.52.050.B of the Bozeman Municipal Code be amended so that such section shall read as follows: B. Commercial and Manufacturing Zones (R-O, B-1, B-2, B-3, UMU, M-1, M-2, BP, PLI, HMU, REMU [mixed use, nonresidential]). 1. Window signs provided that such signs do not occupy more than 25 percent of the area of the window in which it is displayed. If it exceeds 25 percent of the area of the window, it will be classified as a wall sign. For the purposes of this section, a window is a transparent glass opening in a wall separated from other glass openings by mullions or other dividers of four inches or less in width. 2. Signs within a structure or building or other enclosed area of property when such signs are not legible when viewed from outside the structure or property. 3. Temporary non-illuminated signs, e.g. real estate sale, for rent or lease, political campaign, noncommercial speech signs shall not exceed 32 square feet in size, shall be no more than 5 feet high and shall be at least 5 feet from the property line. Only one sign of each subject per street frontage per lot is allowed. 4. A temporary, non-illuminated sign identifying the businesses working at a construction site may be posted. The signs for multiple businesses shall be aggregated among all those working on the site and in total shall not exceed 32 square feet in size, shall be no more than 5 feet high and shall be at least 5 feet from the property line. All parties to the development, including but not limited to, banks, architects, contractors, developers, future occupants of the lot, real estate agent, landscape company shall be on a single sign per street frontage per lot. Such signs shall not be considered off-premise advertising so long as the identified business is actively engaged on the site. 5. Not more than four on-premises directional signs not exceeding 4 square feet in area and 5 feet in height which shall not contain any commercial messages. Section 10 Section 18.52.060.A&B of the Bozeman Municipal Code be amended so that such sections shall read as follows: 18.52.060 SIGNS PERMITTED UPON THE ISSUANCE OF A SIGN PERMIT The following on-premise signs are permitted in the indicated zones subject to a sign permit: A. Commercial, Manufacturing, and Public Land Zones ( B-2, B-3, UMU, M-1, M-2, BP, PLI, HMU, REMU [mixed use, nonresidential]). A lot in a B-2 district is permitted total signage not to exceed 400 square feet. The maximum allowable total signage in the other districts listed herein shall not exceed 250 square feet per lot. A comprehensive sign plan 160 Page 9 of 16 is required for all commercial centers consisting of two or more tenant spaces on a lot and shall be designed in accordance with §18.52.070, BMC. 1. Freestanding Signs. One freestanding sign is permitted per zoned lot. The maximum area for a freestanding sign shall be 32 square feet. A low profile freestanding sign shall be set back a minimum of 5 feet with a maximum height of 5 feet. A pole-style freestanding sign shall be set back a minimum of 15 feet with a maximum height of 13 feet. The pole-style sign will maintain at least an 8-foot minimum vertical clearance from the ground. 2. Wall Signs. Wall signs are not to exceed a total signage allowance of 2 square feet for the first 25 linear feet of building frontage and 1.5 square feet per linear foot of building frontage thereafter, minus any area devoted to freestanding or projecting signs. When a building is located on its lot such that there is no parking between the building facade with the primary entrance and the street right of way line and there is parking located to the side of the building, then 35 percent of the side length of the building may be used to calculate building frontage. Canopy, window and awning signs shall be classified as wall signs. Wall signs shall not project above the top of a wall or parapet. Lots fronting on two or more streets shall be permitted an additional 35 percent of the already permitted wall sign area for each subsequent building frontage. The additional sign area shall be applied to the side of the building from which the 35 percent calculation was made. Regardless of the allowance for additional area the maximum area shall not exceed the amount allowed for the district. 3. Projecting Signs. One projecting sign per tenant. Projecting signs shall not exceed 8 square feet in area nor extend more than 4 feet from the building. In the B-3 district, projecting signs shall not exceed 12 square feet in area nor extend more than 6 feet from the building. Projecting signs shall provide a minimum sidewalk clearance of 8 feet. B. Business and Office Zones (B-1, R-O). The maximum allowable total signage for a lot with one building shall not exceed 80 square feet in a B-1 district or non-residentially planned R-O district, the maximum allowable total signage for a lot with two or more buildings shall not exceed 80 square feet per building in a B-1 district or non- residentially planned R-O district and 32 square feet in a residentially planned R-O district. The maximum sign area per user on a zoned lot shall not exceed 80 square feet. A comprehensive sign plan is required for all commercial centers consisting of two or more tenant spaces on a lot. Such plans shall be designed in accordance with this section. 1. Low Profile Freestanding Signs. One low profile sign not to exceed 32 square feet in area in the B-1 district, and 12 square feet in area in the R-O district. In both the B-1 and the R-O districts, the low profile sign shall have a minimum setback of 5 feet and a maximum height of 5 feet. Pole-style freestanding signs are not permitted in the B-1 and R-O zones. 2. Wall Signs. Wall signs in the B-1 district are not to exceed a total signage allowance of 1.5 square feet for the first 25 linear feet of building frontage and 1 square foot per linear foot of building frontage thereafter, minus any area devoted to freestanding or projecting signs. Wall signs in the R-O district are not to exceed a total signage allowance of 0.5 of a square foot per linear foot of building 161 Page 10 of 16 frontage minus any area devoted to freestanding and/or projecting signs. When a building is located on its lot such that there is no parking between the building facade with the primary entrance and the street right of way line and there is parking located to the side of the building then 35 percent of the side length of the building may be used to calculate building frontage. Canopy, window and awning signs shall be classified as wall signs. Wall signs shall not project above the top of a wall or parapet. Lots fronting on two or more streets shall be permitted an additional 35 percent of the already permitted wall sign area for each subsequent building frontage. The additional sign area shall be applied to the side of the building from which the 35 percent calculation was made. Regardless of the allowance for additional area the maximum area shall not exceed the amount allowed for the district. 3. Projecting Signs. One projecting sign per tenant. Projecting signs shall not exceed 8 square feet in area nor extend more than 4 feet from the building. Projecting signs shall provide a minimum sidewalk clearance of 8 feet. 4. Subdivision Identification Signs. For residential subdivisions consisting of more than four residential units, one low profile, freestanding, neighborhood identification sign per development entrance is allowed. Each sign shall not exceed 16 square feet in area or 5 feet in height from the finished grade. The sign must be setback at least 5 feet from the property line. 5. Residential Building Identification Signs. For properties used for multi-household residential buildings, one residential identification wall sign per street frontage. Each sign shall not exceed 8 square feet in area. Section 11 Section 18.52.080 of the Bozeman Municipal Code be amended and renumbered so that such section shall read as follows: 18.52.080 MULTITENANT COMPLEXES WITH LESS THAN 100,000 SQUARE FEET OF GROUND FLOOR AREA The guidelines for the underlying zoning districts apply unless otherwise addressed below: A. The maximum permitted wall sign area allowed for each tenant space shall be the percentage of the total floor area on the zoned lot that the tenant occupies multiplied by the wall area allowed by §18.52.060.A.2 or §18.52.060.B.2, BMC unless otherwise allocated in an approved comprehensive sign plan per Section 18.52.070. If the lot has more than one building frontage, the individual tenant space may derive sign area only from the frontage(s) which the space faces. Lots under this section shall be allowed a low profile sign that identifies the complex, which otherwise conforms to this chapter, in addition to the sign area already permitted under §18.52.060.A.2or §18.52.060.B.2, BMC. Section 12 162 Page 11 of 16 Section 18.52.130 of the Bozeman Municipal Code be amended and renumbered so that such section shall read as follows: 18.52.130045 REQUIRED ADDRESS SIGN Street numbers shall be required for all residential, commercial, industrial, and civic uses in all zones., consistent with the requirements of the Fire Department. All freestanding signs shall display the address of the lot in 6-inch numbers. All building numbering shall conform to Chapter 12.08, Building Numbers, BMC. Section 13 Section 18.64.160 of the Bozeman Municipal Code be amended so that such section shall read as follows: 18.64.160 VIOLATION - PENALTY - ASSISTING OR ABETTING - ADDITIONAL REMEDIES The effective enforcement of adopted standards is necessary to accomplish their intended purpose. The City has a variety of options for the enforcement of this title. The Planning Director shall select the option which in their opinion is most suitable to the circumstance and violation. More than one enforcement option may be used to attain compliance with the standards of this title when deemed appropriate. A. Violation of the provisions of this title or failure to comply with any of its requirements including violations of conditions and safeguards established in connection with the grant of variances or conditional uses or any of the required conditions imposed by the Planning Director and/or City Commission shall constitute a misdemeanor. Any person who violates this title or fails to comply with any of its requirements shall upon conviction thereof be fined or imprisoned or both, either as set forth in state law regarding subdivision and zoning, or in accordance with Section 1.16.010, BMC, and in addition shall pay all costs and expenses involved in the case except as stated in subsection D of this section. 1. Each day such violation continues shall be considered a separate offense and punishable as such. 2. For violations relating to plats each sale, lease or transfer of each separate parcel of land in violation of any provision of these regulations or the Montanan Subdivision and Platting Act shall be deemed a separate and distinct offense. B. The code compliance officer is authorized to issue a notice to appear under the provisions of §46-6-310, MCA to any violator of this title. C. The owner or tenant of any building, structure, premises or part thereof, and any architect, builder, contractor, agent or other person who commits, participates in, assists or maintains such violation may each be found guilty of a separate offense and suffer the penalties herein provided. D. If transfers not in accordance with these regulations or the Montana Subdivision and Platting Act are made, the City Attorney shall commence action to enjoin further sales or 163 Page 12 of 16 transfers and compel compliance with all provisions of these regulations. The cost of the action must be imposed against the party not prevailing. E. When a violation has not been corrected by the property owner after written notice from the City, the enforcement officer or Planning Director may seek approval for filing at the Gallatin County Clerk and Recorder’s Office a Notice of Violation or Noncompliance. Such notice shall serve to advise potential purchasers of existing violations of this title or of on-going enforcement actions regarding a property. Such notice shall clearly state that the parcel or development on the parcel is in violation of this title and that correction of the violation must be made prior to the City approving additional development or redevelopment of the site. The notice shall also describe the nature of the violation and applicable citations to the relevant sections of this title. 1. When such a notice is to be filed the enforcement officer shall either: a. Through the office of the City Attorney bring an action for civil and/or injunctive relief that requests a court order to record a Notice of Violation or Noncompliance; or b. Schedule a public meeting to be held before the City Commission with the intention of receiving an order from the City Commission confirming the validity of the violation and the need for correction, and authorizing the recording of the Notice of Violation or Noncompliance. Notice of such a hearing shall be provided as required by Chapter 18.76, BMC. 2. When a violation has been corrected for which a Notice of Violation or Noncompliance was filed, the City shall record a release of noncompliance indicating that the prior violation has been corrected. The property owner is responsible for notifying the Planning Department in writing of the correction of the violation or noncompliance. Upon receipt of such notification by the property owner, the enforcement officer shall conduct an inspection to verify correction prior to the recording of the release. F. The City may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with, or to restrain by injunction the violation of, any provision of this title. G. Nothing herein contained shall prevent the City from taking such other lawful action as is necessary to prevent or remedy any violation. H. Violation of this Title is a municipal infraction and may be punishable by a civil penalty as provided in Section 1.24.040 BMC, in addition to other remedies of Section 18.64.160 except that the Court shall impose the following minimum civil penalties. 1. Each day such violation continues shall be considered a separate offense and punishable as such. The minimum civil penalty for violation of this title by the same person for the same violation within a 12 month period shall be: a. First citation $100.00 b. Second citation $150.00 c. Third and subsequent citations $200.00 164 Page 13 of 16 d. The determining factor with respect to the civil penalty is the receipt of service of the citation and not the judgment. I. Upon resolution of an identified instance of non-compliance with the standards of this title the City may record a document with the Gallatin County Clerk and Recorder to give notice of the resolution of the non-compliance. Section 14 Section 18.66.030.C of the Bozeman Municipal Code be amended so that such section shall read as follows: C. Filing of Notice of Appeal. An appeal shall be taken by filing with the Clerk of the Commission a notice of intent to appeal by 5:00 pm on the fourth business 10th working day following the final decision of the Planning Director, and a documented appeal and appeal fee. within seven business days of the final decision of the Planning Director. Such notice of intent to appeal shall include the following: 1. The action of the Planning Director which is the subject of the appeal; and 2. The date of such action. Section 15 Section 18.66.040.A of the Bozeman Municipal Code be amended so that such section shall read as follows: A. A request for appeal of an interpretation of this title, including classifications of use per Chapter 18.14, BMC, shall be made by filing an application, with appropriate fees, with the Clerk of the Commission within 30 calendar 20 working days of the interpretation decision. After receiving a completed application the Clerk of the Commission shall schedule a hearing at a regular Commission meeting. In all cases, the complete application shall include, and shall not be deemed filed until, all of the materials required by §18.78.150, BMC are submitted. Section 16 That Section 18.70.030 of the Bozeman Municipal Code be amended to read as follows: 18.70.030 PUBLIC HEARING PROCEDURES AND REQUIREMENTS A. The City Commission and Zoning Commission shall hold public hearings on the matters referred to in such application at which parties of interest and citizens shall have an opportunity to be heard. B. The Planning Director shall give public notice as required by Chapter 18.76, BMC. The Planning Director shall provide to the City Commission and Zoning Commission a report of the staff’s analysis of the application. C. After such hearing or hearings, the Zoning Commission will make reports and recommendations on the application to the City Commission. 165 Page 14 of 16 D. After the Zoning Commission has forwarded a recommendation on the amendment to the zoning district map, a public hearing shall be held by the City Commission for the purpose of acting upon the proposed amendment after public notice. 1. In the case of protest against such changes, signed by the owners of 25 percent or more of either the area of the lots included in any proposed change or those lots or condominium units 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two-thirds of the present and voting members of the City Commission. When considering protests from owners of condominiums the provisions of 76-2-305(3), MCA apply. The provisions of subsection 18.70.030.D include the ability for an applicant to protest a possible decision to adopt a zoning less than originally requested when the applicant meets the same criteria as other affected landowners. 2. If the City Commission intends to adopt a zoning designation different than that applied for, the hearing will be continued for a minimum of one week to enable the applicant to consider their options and whether to protest the possible action. In the case of protest against a change to the zoning map by the applicant the same favorable vote of two-thirds of the present and voting members of the City Commission is required as for any other protested zoning action. Section 17 That title 18, Unified Development Ordinance, of the Bozeman Municipal Code be amended by adding a new section to be numbered 18.80.1945 to read as follows: 18.80.1945 MURAL A visual representation using texture, colors, forms, or symbols, which does not meet the definition of a sign, placed on a solid, non-transparent vertical surface such as a wall of a building. Section 18 That title 18, Unified Development Ordinance, of the Bozeman Municipal Code be amended by changing section 18.80.3210 to read as follows: 18.80.3210 WINDOW SIGN Any sign painted, attached, glued or otherwise affixed to a window or suspended within 18 inches behind a window for the purpose of being visible from the exterior of the building. Section 19 Repealer All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the 166 Page 15 of 16 City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 20 Savings Provision This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provision of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 21 Severability That should any sentence, paragraph, subdivision, clause, phrase or section of this ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of this ordinance as a whole, or any part or provision thereof, other than the part so decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman Municipal Code as a whole. Section 22 Codification The provisions of Section 1 shall be codified as appropriate in Title 2, Administration, and the provisions of Sections 2-17 shall be codified as appropriate in Title 18, Unified Development Ordinance, of the Bozeman Municipal Code. All references within the Bozeman Municipal Code shall be revised to reflect the changes in this ordinance. Section 23 Effective Date This ordinance shall be in full force and effect thirty (30) days after final adoption. PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the _______ day of _______, 2011. ____________________________________ JEFFREY K. KRAUSS Mayor 167 Page 16 of 16 ATTEST: _________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of ________________, 2011. The effective date of this ordinance is __________, __, 2011. ____________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _______________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: ____________________________________ GREG SULLIVAN City Attorney 168