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HomeMy WebLinkAboutFinally Adopt Ordinance No. 1804, Amending Title 18, UDO Zoning previsions.pdf Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Chris Saunders, Assistant Planning Director Tim McHarg, Planning Director SUBJECT: Second Reading and final adoption for Ordinance 1804 amending multiple sections of Title 18, Unified Development Ordinance, Bozeman Municipal Code. MEETING DATE: July 11, 2011 AGENDA ITEM TYPE: Consent Item RECOMMENDATION: Finally adopt Ordinance 1804 amending multiple sections of Title 18, Unified Development Ordinance, Bozeman Municipal Code. BACKGROUND: The City Commission provisionally adopted this ordinance on June 27th after conducting a public hearing and considering the facts and relevant review criteria. 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. 77 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. Report compiled on: June 28, 2011 78 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 79 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 on June 27th, 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 does create and establish a municipal 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 municipal zoning commission, granting and delegating to the zoning commission all of the rights, privileges, powers, duties and responsibilities thereto appertaining. 2.65.020 JURISDICTION. The zoning commission shall have such jurisdiction as provided by state law. 2.65.030 COMPOSITION. The 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. 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 zoning commission. 80 Page 3 of 16 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 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 81 Page 4 of 16 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: 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 82 Page 5 of 16 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’s 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. 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. 83 Page 6 of 16 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 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. 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. 84 Page 7 of 16 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. Section 9 Section 18.52.050.B of the Bozeman Municipal Code be amended so that such section shall read as follows: 85 Page 8 of 16 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 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 86 Page 9 of 16 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 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 87 Page 10 of 16 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 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 88 Page 11 of 16 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 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 89 Page 12 of 16 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 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 90 Page 13 of 16 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. 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 91 Page 14 of 16 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 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 92 Page 15 of 16 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 2-18 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 27th day of June 2011. ____________________________________ JEFFREY K. KRAUSS Mayor ATTEST: _________________________________ STACY ULMEN, CMC City Clerk APPROVED AS TO FORM: 93 Page 16 of 16 ____________________________________ 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 94