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HomeMy WebLinkAboutFinally Adopt Ordinance No. 1809, Amending Title 18, UDO, Ch. 18.34 Site Plans.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 1809 replacing Chapter 18.34, Site Plans, and amending Section 18.64.010 of Title 18, Unified Development Ordinance, Bozeman Municipal Code. MEETING DATE: July 11, 2011 AGENDA ITEM TYPE: Consent Item RECOMMENDATION: Finally adopt Ordinance 1809 replacing Chapter 18.34, Site Plans, and amending Section 18.64.010 of Title 18, Unified Development Ordinance, Bozeman Municipal Code. BACKGROUND: The City Commission granted provisional adoption to Ordinance 1809 on June 27, 2011 after conducting a public hearing and considering the facts and applicable review criteria. Principal actions by this ordinance are: 1) Clean up common references so they are more consistent and do not create possible conflicts with other sections. An example of this is to use the term “review authority” rather than specify a certain party. The authority to conduct a review is established in 18.64. This also advances a larger cleanup project to simplify project review and approval which the Planning Board has been working on. The City Commission will be asked on August 8th to give additional guidance in this area. The present changes will not limit Commission policy discretion in that future discussion. 2) More clearly established provisions to support greater phasing of projects and better management of phased projects. 3) Consolidates several sections, especially relating to conditional uses, so that the text and conceptual structure flows more understandably. 4) Addresses sketch plan review and the applicability of sketch plan review for reuse/further development of sites which were originally developed prior to the ‘modern’ zoning standards which took effect in September 1991. 120 5) Allow for conditional use permits to be subject to the same modification provisions as a regular site plan. Currently, any expansion or change to a conditional use permit requires the review and approval of another conditional use permit. Experience has shown that most of the changes to conditional use permits are minor and pose no hazard that justifies the effort of a conditional use permit review. There are specific thresholds for site plans that limit how much of a change can occur before a full review is required. 6) Expand the provisions for extensions of final site plans. These changes are related to the phasing provisions and also provide an overall improvement to the code. 7) Allow the Planning Director to approve master site plans that do not include variances or deviations. This is to facilitate phasing of projects without adding additional procedural requirements. The City Commission currently approves all master site plans. 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. Attachments: Ordinance 1809 Report compiled on: June 28, 2011 121 Page 1 of 20 ORDINANCE NO. 1809 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY REVISING CHAPTER 18.34, SITE PLAN REVIEW, AND AMENDING SECTION 18.64.010, REVIEW AUTHORITY TO AUTHORIZE THE PLANNING DIRECTOR TO APPROVE MASTER SITE PLANS. WHEREAS, the City of Bozeman has adopted a Unified Development Ordinance which establishes standards and procedures for development under the City’s authority to zone established in Title 76, Chapter 2, Part 3, MCA; 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 comment on the proposed ordinance; and 122 Page 2 of 20 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 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 Chapter 18.34, Site Plan Review, of the Bozeman Municipal Code be deleted in its entirety and be wholly replaced with a new a new chapter to read as follows: CHAPTER 18.34 PLAN REVIEW 18.34.010 INTRODUCTION A. All non-subdivision development proposals within the City will be subject to plan review and approval except repair, maintenance, grading below the minimum defined limits of 123 Page 3 of 20 this title, and interior remodeling, or other items specifically exempted in this title. Depending on the complexity of development and status of proposed use in the applicable zoning district, either sketch plans, site plans, master site plans, or conditional use permits (referred to herein as a ‘plan’) will be required as specified in this chapter. Although work may be exempt from zoning review it may require review for other permits before construction may begin. B. Special development proposals (e.g., PUDs, CUPs, variances, etc.) require other information to be submitted in conjunction with plans and are subject to requirements specific to the type of proposal. These additional submittal requirements and review procedures are outlined in §18.34.030, BMC. C. When a development is proposed within a neighborhood conservation or entryway corridor overlay district, or proposes signs which do not specifically conform to the requirements of this title, design review is required in conjunction with plan review per the authority in Section 18.62.010. In such cases, additional submittal requirements and review procedures apply as outlined in §18.78.090, BMC. D. Conditional Uses. Certain uses, while generally not suitable in a particular zoning district, may, under certain circumstances, be acceptable. When such circumstances can be demonstrated by the applicant to exist, a conditional use permit may be granted by the review authority. Conditions may be applied to the issuance of the permit and periodic review may be required. No conditional use permit shall be granted for a use which is not specifically designated as a conditional use in this title. E. Approval shall be granted for a particular use and not for a particular person or firm. F. This chapter is provided to meet the purposes of §18.02.040, BMC and all other relevant portions of this title. G. Applications subject to this chapter shall be reviewed under the authority established by Chapter 18.64, BMC. 18.34.020 CLASSIFICATION OF PLANS A. All developments, as defined in Chapter 18.80, within the City shall be subject to plan review procedures and criteria of this title and the applicable submittal requirements of Chapter 18.78, BMC. For the purposes of this title, plans will be classified as either a site plan or a master site plan. 1. Exception. Those developments specified in Sections 18.34.070, BMC and other development proposals when so specifically identified require only sketch plan review. B. A master site plan is a generalized development plan that establishes building envelopes and overall entitlements for complex, large-scale projects that will require multiple years to reach completion. Use of a master site plan is not required unless necessary to address phasing of a proposed development (see Section 18.34.090.B.3) or if required as part of the residential emphasis mixed use district. A master site plan involves one or more of the following: 1. One hundred or more dwelling units in a multiple household structure or structures; 124 Page 4 of 20 2. Fifty thousand or more square feet of office space, retail commercial space, service commercial space or industrial space; 3. Multiple buildings located on multiple contiguous lots and/or contiguous City blocks; 4. Multiple owners; 5. Development phasing projected to extend beyond two years; or 6. Parking for more than two-hundred vehicles. C. Any planned unit development shall be reviewed according to the regulations in Chapter 18.36, BMC, in addition to this chapter. D. Telecommunication facilities shall be reviewed according to the regulations in Chapter 18.54, BMC, in addition to this chapter. E. Uses identified in Chapter 18.40, BMC shall be reviewed according to the standards and regulations contained in Chapter 18.40, BMC, in addition to this chapter. 18.34.030 SPECIAL DEVELOPMENT PROPOSALS - ADDITIONAL APPLICATION REQUIREMENTS, REVIEW PROCEDURES AND REVIEW CRITERIA A. Application Requirements. Applications for special development proposals (e.g. PUD, CUP, flood plain development permits, variances, etc.) shall include: 1. The required information for plans described in §18.78.080, BMC; 2. Any additional application information required for specific reviews as listed in the following chapters of this title: a. §18.36, Planned Unit Development; b. §18.40, Standards for Specific Uses; c. §18.54, Telecommunications; d. §18.58, Bozeman Floodplain Regulations; and e. §18.66, Appeals, Deviations and Variance Procedures; B. Review Procedures and Review Criteria. Additional review procedures and review criteria for specific development proposals are defined in the following chapters of this title: 1. §18.34.080, Certificate of Appropriateness; 2. §18.34.110, Conditional Use; 3. §18.36, Planned Unit Development; 4. §18.40, Standards for Specific Uses; 5. §18.54, Telecommunications; 6. §18.58, Bozeman Floodplain Regulations; and 7. §18.66, Appeals, Deviations and Variance Procedures. 18.34.040 REVIEW AUTHORITY A. The review authorities are established in Section 18.64.010, BMC and as may be specified elsewhere in this title. 125 Page 5 of 20 B. The Development Review Committee, Design Review Board, Administrative Design Review Staff, and Wetlands Review Board have the advisory authority established in Chapter 18.62, BMC. C. Plan Design Review Thresholds. When a development is subject to design review and meets one or more of the following thresholds the Design Review Board shall have responsibility for conducting the design review. 1. Twenty or more dwelling units in a multiple household structure or structures; 2. Thirty thousand or more square feet of office space, retail commercial space, service commercial space or industrial space; 3. Twenty thousand or more square feet of exterior storage of materials or goods; or 4. Parking for more than ninety vehicles. 18.34.050 APPLICATION OF PLAN REVIEW PROCEDURES A. These procedures shall apply to all developments within the City unless explicitly exempted in this title. B. The preliminary plan shall be submitted and approved, and final plan approval received, prior to the issuance of any building permit. C. No occupancy permits shall be issued for any development for which plan review is required until certification has been provided under Section 18.74.030 demonstrating that all terms and conditions of plan approval have been complied with. D. Unless a deviation or variance is explicitly sought and granted in association with a plan, all standards of this title apply whether explicitly mentioned in the record of the review or not. An omission or oversight of a nonconformity with the standards of this title in the site plan shall not constitute approval of such nonconformance. Any nonconformance which was not the subject of an explicitly approved deviation or variance may be required to be cured at such time the City becomes aware of the nonconforming condition’s existence. E. In the event that the volume of site development applications submitted for review exceeds the ability of the City to process them simultaneously, preference in order of scheduling will be given to those projects which provide the most affordable housing in excess of minimum requirements, as measured by the total number of affordable units. F. When a development subject to this chapter is located within an overlay district established by Chapters 18.28 or 18.30 a certificate of appropriateness is required in addition to other required review procedures. G. Public notice of development proposals and approvals subject to this chapter shall be provided as required by Chapter 18.76, BMC. H. Improvements depicted on an approved plan shall be installed subject to the requirements of Chapter 18.74, BMC. 18.34.060 SPECIAL TEMPORARY USE PERMIT A. Generally. Uses permitted subject to a special temporary use permit are those temporary uses which are required for the proper function of the community or are temporarily required in the process of establishing a permitted use, constructing a public facility or 126 Page 6 of 20 providing for response to an emergency. Such uses shall be so conducted that they will not be detrimental in any way to the surrounding properties or to the community. Uses permitted subject to a special temporary use permit may include: 1. Carnivals, circuses, special events of not over seventy-two consecutive hours; 2. Tent revival meetings; 3. Swap meets; or 4. Such other uses as the Planning Director may deem to be within the intent and purpose of this section. B. Application and Filing Fee. Application for a special temporary use permit may be made by a property owner or his authorized agent. A copy of the fees are available at the Planning Department. Such application shall be filed with the Planning Director who shall charge and collect a filing fee for each such application, as provided in Chapter 18.64, BMC. The Planning Director may also require any information deemed necessary to support the approval of a special temporary use permit, including site plans per this chapter. C. Decision. Approval or conditional approval shall be given only when in the judgment of the review authority such approval is within the intent and purposes of this chapter. D. Conditions. In approving such a permit, the approval shall be made subject to a time limit, not to exceed one year per approval, and other conditions deemed necessary to assure that there will be no adverse effect upon adjacent properties. Such conditions may include, but are not limited to, the following: 1. Regulation of parking; 2. Regulation of hours; 3. Regulation of noise; 4. Regulation of lights; 5. Requirement of financial security or other guarantees for cleanup or removal of structure or equipment; and/or 6. Such other conditions deemed necessary to carry out the intent and purpose of this section. 18.34.070 SKETCH PLAN REVIEW A. Sketch Plan Submittal Requirements. 1. Certain independent development proposals (i.e., not in conjunction with other development) are required to submit only sketch plans which include the information specified in §18.78.110, BMC. 2. Separate construction plans are necessary for building permits when the proposal requires such permits. Additional information is also necessary when the proposal requires the issuance of a certificate of appropriateness (see §18.34.080 and §18.78.090, BMC). 3. Examples of independent projects which qualify for sketch plan review are: individual single-household including manufactured homes on individual lots, two-household, three-household, and four-household residential units, each on 127 Page 7 of 20 individual lots and independent of other site development; accessory dwelling units in the R-2, R-3 and R-4 districts; fences; signs in compliance with the requirements of this title; regulated activities in areas with regulated wetlands not in conjunction with a land development proposal; grading of sites disturbing more than one-eighth but less than one-half acre, or movement of more than 30 but less than 100 cubic yards of material, or cut or fill of less than one cumulative foot, whichever is less; special temporary uses; reuse, change in use, or further development of sites per Section 18.34.150; and accessory structures associated with these uses. Other similar projects may be determined by the Planning Director to require only sketch plan review. The Planning Director may determine submittal requirements in addition to those in Section 18.78.110. Projects which do not require sketch plan review may still require review and permitting for non- zoning issues. B. Sketch Plan Review Procedures. 1. No Certificate of Appropriateness Required. Sketch plans for projects which do not require a certificate of appropriateness shall be submitted to the Planning Director for a determination of compliance with the requirements of this title. Once compliance is achieved, the application will be approved for construction or referred to the appropriate permitting authorities. In determining whether compliance is achieved the Planning Director shall consider the individual circumstances of the site when the development is subject to Section 18.34.150. 2. Certificate of Appropriateness Required. Sketch plans, including the material required by §18.78.090, BMC, and such additional information as may be required for projects which require a certificate of appropriateness as per §18.34.080, BMC shall be submitted to the Planning Director, who shall review the proposal for compliance with this title, including compliance with the applicable overlay district requirements. Once compliance is achieved, the application will be approved for construction or referred to the appropriate permitting authorities. C. Sketch Plan Review Criteria. Sketch plans shall be reviewed for compliance with all applicable requirements of this title including overlay district requirements and the cessation of any current violations of this title, exclusive of any legal nonconforming conditions. Plan changes may be required. 18.34.080 CERTIFICATES OF APPROPRIATENESS - ADDITIONAL REVIEW PROCEDURES AND REVIEW CRITERIA A. Sign Proposals Which Do Not Specifically Conform to the Requirements of This Title. Independent sign proposals (i.e., not in conjunction with other development) which do not specifically conform to the requirements of this title, are required to submit full site plans. Additional site design information, in sufficient detail to demonstrate compliance with the Design Objective Plan, encompassing the property’s location shall be provided. B. Review Procedures and Criteria for Certificates of Appropriateness. 1. Certificates of appropriateness shall be issued according to procedures and criteria specified in Chapters 18.28, 18.30, 18.36 and 18.62, BMC in addition to this chapter. 128 Page 8 of 20 2. Sign proposals which specifically conform to the requirements of this title shall be reviewed according to procedures and criteria outlined in Chapter 18.52, BMC. 18.34.090 PLAN REVIEW PROCEDURES A. Acceptability and Adequacy of Application. 1. The Planning Director shall review the application for acceptability within five working days to determine if the application is does not omit any of the submittal elements required by this title. If the application does not contain all of the required elements, the application, review fee and a written explanation of what the application is missing shall be returned to the property owner or their representative. The five working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the five day review period. 2. After the application is deemed to contain the required elements and to be acceptable, it shall be reviewed for adequacy. A determination of adequacy means the application contains all of the required elements in sufficient detail and accuracy to enable the applicable review agency to make a determination that the application either does or does not conform to the requirements of this title and any other applicable regulations under the jurisdiction of the City of Bozeman. The review for adequacy shall be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period shall begin on the next working day after the date that the Planning Director determines the application to contain all the required elements and shall be completed within not more than 15 working days. The 15 working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the property owner. Upon a determination of adequacy the review of the development will be scheduled. a. In the event the missing information is not received by the City within 15 working days of notification to the property owner of inadequacy, all application materials and one-half of the review fee shall be returned to the property owner or their representative. Subsequent resubmittal shall require payment of a review fee as if it were a new application. b. A determination that an application is adequate does not restrict the City from requesting additional information during the site plan review process. 3. Should the property owner choose not to provide the required information after an application has been found unacceptable, nor to accept return of the application and accompanying fee, the application may be processed by the City with the recognition by the property owner that unacceptability is an adequate basis for denial of the application regardless of other merit of the application. 4. The DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials shall be provided before review is completed. 129 Page 9 of 20 5. In order to be granted a waiver the applicant shall include with the submission of the preliminary plan a written statement describing the requested waiver and the reasons upon which the request is based. The final approval body shall then consider each waiver at the time the preliminary site plan is reviewed. All waivers must be identified not later than initial submittal of the preliminary site plan stage of review. B. Plans shall be reviewed by the review bodies established by Chapter 18.62, BMC and according to the procedures established by this title. After review of the applicable submittal materials required by Chapter 18.78, BMC, and upon recommendation by the appropriate advisory bodies, the review authority shall act to approve, approve with conditions or deny the application, subject to the appeal provisions of Chapter 18.66, BMC. The basis for the review authority’s action shall be whether the application, including any required conditions, complies with all the applicable standards and requirements of this title, including § 18.02.050, BMC. 1. Plan. The review authority shall provide an opportunity for the public to comment upon development proposals. The duration of the initial comment period shall be included in any notice required by Chapter 18.76, BMC. The comment period shall be from the date of the first consideration of the complete preliminary plan and supplementary materials by the DRC until 5:00 pm on the third working day after DRC and other review bodies as may be appropriate have taken action regarding the proposal. a. The review authority after receiving the recommendations of the, advisory bodies and considering any public comment shall act to approve, approve with conditions or deny an application within ten working days of the close of the public comment period. The decision shall be in writing and shall include any special conditions which are to be applied to the development. (1) After formal notice of a project review has been given, interested parties may request in writing to receive a copy of the decision regarding an application. Persons making such a request shall provide an addressed envelope for use in delivering their copy of the decision. 2. Plan with Deviations or Variances or Conditional Use Permits. The review authority shall provide an opportunity for the public to comment upon a proposed plan. The comment period shall be from the date of the first consideration of the complete preliminary plan and supplementary materials by the DRC until the decision is made. a. The review authority, after receiving the recommendations of the, advisory bodies and considering any public comment shall act to approve, approve with conditions or deny an application. The decision shall be in writing and shall include any special conditions which are to be applied to the development. 3. Phasing. The entitlement period for which a final plan is valid is specified in Section 18.34.120, BMC. Preliminary single phase plan applications will only be 130 Page 10 of 20 accepted for development that can occur under building permits issued within this final plan approval period. a. Any development that includes phases/buildings that would extend past the final plan approval period shall proceed under the master site plan application process with a first phase plan for those portions that can be constructed under the single phase final plan approval. The master site plan and first phase site plan may be reviewed concurrently as a single application. Each future project phase must submit a stand-alone site plan application following initial master site plan approval. b. Each phase of a plan must not include more buildings than will be constructed within a one year timeframe. These subsequent site plan applications may be expedited through the review process if they are consistent with the master site plan. Independent fees will be assessed for each required application. c. A preliminary site plan application may be received where it is unclear whether the buildings/units can be constructed under building permits issued within one year of final site plan approval. In this case the planning director may request proof of a construction financing commitment prior to accepting the application for review. Applications, where it is clear that the buildings/units cannot be constructed under building permits issued within one year of final site plan approval, will be deemed unacceptable for review and directed to proceed through a master site plan with first phase site plan process. 18.34.100 PLAN REVIEW CRITERIA A. In considering applications for plan approval under this title, the review authority and advisory bodies shall consider the following criteria. When considering the criteria for future phases of a master site plan, other than those for criteria 1-3, the evaluation shall be of a more generalized demonstration of compliance, recognizing that a subsequent site plan shall be submitted in the future which shall provide evidence of specific compliance. The level of detail submitted and review conducted shall be equal with the level of entitlement being sought with the application. See Chapter 18.78 for required submittal materials. 1. Conformance to and consistency with the City’s adopted growth policy. 2. Conformance to this title, including the cessation of any current violations; 3. Conformance with all other applicable laws, ordinances and regulations; 4. Relationship of plan elements to conditions both on and off the property, including: a. Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods and other approved development relative to architectural design, building mass and height, neighborhood identity, landscaping, historical character, orientation of buildings on the site and visual integration; 131 Page 11 of 20 b. Design and arrangement of the elements of the plan (e.g., buildings, circulation, open space and landscaping, etc.) so that activities are integrated with the organizational scheme of the community, neighborhood, and other approved development and produce an efficient, functionally organized and cohesive development; c. Design and arrangement of elements of the plan (e.g., buildings circulation, open space and landscaping, etc.) in harmony with the existing natural topography, natural water bodies and water courses, existing vegetation, and to contribute to the overall aesthetic quality of the site configuration; and d. If the proposed project is located within a locally designated historical district, or includes a locally designated landmark structure, the project is in conformance with the provisions of Chapter 18.28, BMC; 5. The impact of the proposal on the existing and anticipated traffic and parking conditions; 6. Pedestrian and vehicular ingress, egress and circulation, including: a. Design of the pedestrian and vehicular circulation systems to assure that pedestrians and vehicles can move safely and easily both within the site and between properties and activities within the neighborhood area; b. Non-automotive transportation and circulation systems design features to enhance convenience and safety across parking lots and streets, including, but not limited to, paving patterns, grade differences, landscaping and lighting; c. Adequate connection and integration of the pedestrian and vehicular transportation systems to the systems in adjacent developments and general community; and d. Dedication of right-of-way or easements necessary for streets and similar transportation facilities; 7. Landscaping, including the enhancement of buildings, the appearance of vehicular use, open space and pedestrian areas, and the preservation or replacement of natural vegetation; 8. Open space, including: a. The enhancement of the natural environment; b. Precautions being taken to preserve existing wildlife habitats or natural wildlife feeding areas; c. If the development is adjacent to an existing or approved public park or public open space area, have provisions been made in the plan to avoid interfering with public access to and use of that area; d. Is any provided recreational area suitably located and accessible to the residential units it is intended to serve and is adequate screening provided to ensure privacy and quiet for neighboring residential uses; e. Open space shall be provided in accordance with Chapter 18.50, BMC; 132 Page 12 of 20 f. Park land shall be provided in accordance with Chapter 18.50, BMC. 9. Building location and height; 10. Setbacks; 11. Lighting; 12. Provisions for utilities, including efficient public services and facilities; 13. Site surface drainage and stormwater control; 14. Loading and unloading areas; 15. Grading; 16. Signage; 17. Screening; 18. Overlay district provisions; 19. Other related matters, including relevant comment from affected parties; and 20. If the development includes multiple lots that are interdependent for circulation or other means of addressing requirements of this title, whether the lots are either: a. Configured so that the sale of individual lots will not alter the approved configuration or use of the property or cause the development to become nonconforming; or b. The subject of reciprocal and perpetual easements or other agreements to which the City is a party so that the sale of individual lots will not cause one or more elements of the development to become nonconforming. 21. Compliance with Title 17 Chapter 2, BMC; 22. Phasing of development. B. If the review authority, after recommendation from the applicable advisory bodies shall determine that the proposed plan will not be detrimental to the health, safety or welfare of the community, is in compliance with the requirements of this title and is in harmony with the purposes and intent of this title and the Bozeman growth policy, approval shall be granted, and such conditions and safeguards may be imposed as deemed necessary. Notice of action shall be given in writing. C. Plan approval may be denied upon a determination that the conditions required for approval do not exist. Persons objecting to the recommendations of review bodies carry the burden of proof. A denial of approval shall be in writing. D. Following approval of a master site plan, the applicant shall submit to the Planning Department, sequential individual site plans for specific areas within the master site plan. Each subsequent application for a site plan shall be consistent with the approved master site plan and subject to the review criteria set forth in subsection A above. Evidence that the review criteria have been met through the master site plan review process may be incorporated by reference in order to eliminate duplication of review. 133 Page 13 of 20 18.34.110 CONDITIONAL USE PERMIT A. The person applying for a conditional use permit shall fill out and submit to the Planning Director the appropriate form with the required fee. The request for a conditional use permit shall follow the procedures and application requirements of this chapter. B. In consideration of all conditional use permit applications, a public hearing shall be conducted by the review authority. Notice of the public hearing shall be provided in accordance with Chapter 18.76, BMC. C. If a rezoning is required prior to approval of a conditional use permit, the application for rezoning and the conditional use permit may be filed and acted upon simultaneously, however the conditional use permit shall not be effective until the rezoning has been implemented by ordinance. D. The review authority, in approving a conditional use permit, shall review the application against the review requirements of §18.34.090, BMC; E. In addition to the review criteria of §18.34.090, BMC, the review authority shall, in approving a conditional use permit, determine favorably as follows: 1. That the site for the proposed use is adequate in size and topography to accommodate such use, and all yards, spaces, walls and fences, parking, loading and landscaping are adequate to properly relate such use with the land and uses in the vicinity; 2. That the proposed use will have no material adverse effect upon the abutting property. Persons objecting to the recommendations of review bodies carry the burden of proof; 3. That any additional conditions stated in the approval are deemed necessary to protect the public health, safety and general welfare. Such conditions may include, but are not limited to: a. Regulation of use; b. Special yards, spaces and buffers; c. Special fences, solid fences and walls; d. Surfacing of parking areas; e. Requiring street, service road or alley dedications and improvements or appropriate bonds; f. Regulation of points of vehicular ingress and egress; g. Regulation of signs; h. Requiring maintenance of the grounds; i. Regulation of noise, vibrations and odors; j. Regulation of hours for certain activities; k. Time period within which the proposed use shall be developed; l. Duration of use; m. Requiring the dedication of access rights; and 134 Page 14 of 20 n. Other such conditions as will make possible the development of the City in an orderly and efficient manner. F. In addition to all other conditions, the following general requirements apply to every conditional use permit granted: 1. That the right to a use and occupancy permit shall be contingent upon the fulfillment of all general and special conditions imposed by the conditional use permit procedure; and 2. That all of the conditions shall constitute restrictions running with the land use, shall apply and be adhered to by the owner of the land, successors or assigns, shall be binding upon the owner of the land, his successors or assigns, shall be consented to in writing, and shall be recorded as such with the County Clerk and Recorder’s Office by the property owner prior to the issuance of any building permits, final plan approval or commencement of the conditional use. G. Applications for conditional use permits may be approved, conditionally approved or denied by motion of the review authority. If an application is denied, the denial shall constitute a determination that the applicant has not shown that the conditions required for approval do exist. H. The applicant shall be notified in writing of the final action taken within seven working days of the action. If the conditional use permit has been granted the notification shall include any conditions, automatic termination date, period of review or other requirements. If the conditional use permit has been granted, the permit shall be issued upon the signature of the Planning Director after completion of all conditions and final plan. I. Termination/ Revocation of Conditional Use Permit approval. 1. Conditional use permits are approved based on an analysis of current local circumstances and regulatory requirements. Over time these things may change and the use may no longer be appropriate to a location. A conditional use permit will be considered as terminated and of no further effect if: a. After having been commenced, the approved use is not actively conducted on the site for a period of two continuous calendar years; b. Final zoning approval to reuse the property for another principal or conditional use is granted; c. The use or development of the site is not begun within the time limits of the final site plan approval in Section 18.34.130, BMC. 2. A conditional use which has terminated may be reestablished on a site by either, the review and approval of a new conditional use permit application, or a determination by the Planning Director that the local circumstances and regulatory requirements are essentially the same as at the time of the original approval. A denial of renewal by the Planning Director may not be appealed. If the Planning Director determines that the conditional use permit may be renewed on a site then any conditions of approval of the original conditional use permit are also renewed. 135 Page 15 of 20 3. If activity begins for which a conditional use permit has been given final approval, all activities must comply with any conditions of approval or code requirements. Should there be a failure to maintain compliance the City may revoke the approval through the procedures outlined in Section 18.64.160, BMC. 18.34.120 FINAL PLAN A. No later than six months after the date of approval of a preliminary plan, the applicant shall submit to the Planning Department a final plan with accompanying application form and review fee. The number of copies of the final plan to be submitted shall be established by the Planning Director. The final plan shall contain the materials required in §§18.78.080 and18.78.090 BMC and whatever revisions to the preliminary site plan or master site plan are required to comply with any conditions of approval. Prior to the passage of six months, the applicant may seek an extension of not more than an additional six months from the Planning Director. B. In addition to the materials required in subsection A of this section, the owner shall submit a certification of completion and compliance stating that they understand any conditions of approval and the submitted final plans have complied with any conditions of approval or corrections to comply with code provisions. C. In addition to the materials required in subsections A and B of this section, the owner shall submit a statement of intent to construct according to the final plan. Such statement shall acknowledge that construction not in compliance with the approved final plan may result in delays of occupancy or costs to correct noncompliance. D. Following approval of a final site plan, the final site plan shall be in effect for one year. Prior to the passage of one year, the applicant may seek an extension of not more than one additional year from the Planning Director. In such instances, the Planning Director shall determine whether the relevant terms of this title and circumstances have significantly changed since the initial approval. If relevant terms of this title or circumstances have significantly changed, the extension of the approval shall not be granted. E. Following approval of a final master site plan, the final master site plan shall be in effect for not less than three but not more than five years with the initial duration to be specified during the final action of the review authority. Owners of property subject to the master site plan may seek extensions to not exceed five years in a single extension. Approval of an extension shall be made by the Planning Director. Approval shall be granted if the Planning Director determines that the criteria of 18.34.120.F are met. F. Any request for an extension must be in writing and be dated and signed by the owner of the undeveloped area or incomplete development for which the extension is sought. More than one extension may be requested for a particular development. Each request shall be considered on its individual merits. An extension of the development approval under Chapter 18.34, BMC does not extend other City or non-City agency approvals, e.g. for design of infrastructure extensions, necessary to complete the project. When evaluating an extension request, the City shall consider: 1. Changes to the development regulations since the original approval and whether the development as originally approved is compliant with the new regulations; 136 Page 16 of 20 2. Progress to date in completing the development as a whole and any phases; 3. Phasing of the development and the ability for existing development to operate without the delayed development; 4. Dependence by other development on any public infrastructure or private improvements to be installed by the development; 5. For extensions of approval greater than one year, the demonstrated ability of the developer to complete the development; 6. Overall maintenance of the site; 7. Whether mitigation for impacts of the development identified during the preliminary plan review remain relevant, adequate, and applicable to the present circumstances of the development and community. G. Upon approval of the final plan by the Planning Director the applicant may obtain a building permit as provided for by Chapter 18.64, BMC. 1. Subsequent site plan approvals are required to implement a master site plan, and approval of a master site plan only does not entitle an applicant to obtain any building permits. 18.34.130 AMENDMENTS TO PLANS A. It is the intent of this section to assure that issues of community concern are addressed during the redevelopment, reuse or change in use of existing facilities in the community. Specific areas of community concern include public safety, mitigation of off-site environmental impacts and site character in relation to surroundings. The following procedures for amendments to approved plans, reuse of existing facilities and further development of sites assure that these concerns are adequately and expeditiously addressed. B. Any amendment to or modification of a plan approved under the ordinance codified in this chapter (September 3, 1991 - Ordinance 1332) shall be submitted to the Planning Director for review and possible approval. Proposals for further development, reuse or change in use of sites developed pursuant to this title shall be reviewed as an amendment to an approved plan. All amendments shall be shown on a revised plan drawing. Amendments to approved plans shall be reviewed and may be approved by the Planning Director upon determining that the amended plan is in substantial compliance with the originally approved plan. If it is determined that the amended plan is not in substantial compliance with the originally approved plan, the application shall be resubmitted as a new application and shall be subject to all standards and plan review and approval provisions of this title. Substantial compliance may be shown by demonstrating that the amendments do not exceed the thresholds established in §18.34.150.B, BMC. C. Modifications or amendments to a master site plan at the time an extension of approval is sought may be proposed by either the applicant or the review authority, and shall be based on substantive current information that indicates that relevant circumstances have changed and that such circumstances support the proposed modifications. Such circumstances may include market analyses, economic conditions, changes in surrounding land uses, changes in ownership, etc. 137 Page 17 of 20 18.34.150 REUSE, CHANGE IN USE OR FURTHER DEVELOPMENT OF SITES DEVELOPED PRIOR TO THE ADOPTION OF THE ORDINANCE CODIFIED IN THIS TITLE A. It is the policy of the City to work with owners of property during the reuse, change in use, or further development process to correct existing violations of the City’s and other agency’s regulations, to encourage reinvestment and renewal of existing developed sites, and to move existing sites toward compliance with current standards while recognizing the limitations that may exist in relation to an existing site. B. Sites legally developed prior to the adoption of the ordinance codified in this title (September 3, 1991 - Ordinance 1332) shall be considered to have developed under an approved plan. Proposals for reuse, change in use or the further development of sites legally developed prior to the adoption of the ordinance codified in this title may be approved by the review authority upon determining that no significant alteration of the previous use and site are proposed, and upon review by the City Engineer or designee to assure that adequate access and site surface drainage are provided. All such proposals shall be shown on a plan drawing as required by Section 18.78.110. C. The criteria for determining that no significant alteration of the previous use and site will result from the proposed reuse, change in use or further development of a site shall include but not be limited to the following: 1. The proposed use is allowed under the same zoning district use classification as the previous use, however replacement of nonconforming uses must comply with the provisions of Chapter 18.60, BMC; 2. Changes proposed for the site, singly or cumulatively, do not increase lot coverage by buildings, storage areas, parking areas or impervious surfaces and/or do not result in an increase in intensity of use as measured by parking requirements, traffic generation or other measurable off-site impacts; a. By more than 20 percent for developments not meeting one or more of the criteria of §18.34.040.C; OR b. By more than 10 percent for developments meeting or exceeding one or more of the criteria of §18.34.040.C; 3. The proposed use does not continue any unsafe or hazardous conditions previously existing on the site or associated with the proposed use of the property. D. If it is determined that the proposed reuse, change in use or further development of a site contains significant alterations to the previous use and/or site, the application shall be resubmitted as a new application and shall be subject to all plan review and approval provisions of this chapter. E. When proposals for reuse, change in use or further development of a site are located in the neighborhood conservation or entryway corridor overlay districts, review by ADR staff or the DRB may be required to determine whether resubmittal as a new application is necessary. 138 Page 18 of 20 18.34.160 IMPROVEMENTS TO EXISTING DEVELOPED SITES INDEPENDENT OF SITE PLAN REVIEW The continued improvement of existing developed sites is desired to increase the level of compliance with the provisions of this title and to encourage maintenance and viability of the site. An applicant may propose improvements, not in association with a plan review, to increase conformity with the standards of this title for landscaping, lighting, parking or similar components of a site to occur over a defined period of time, not to exceed three years. Such improvements shall be depicted on a site plan drawn to scale and which shall be sufficiently detailed to clearly depict the current conditions, the intended end result of the proposed improvements and any phasing of work. Such improvements shall be reviewed by and approved at the discretion of the review authority which may require surety in accordance with the terms of Chapter 18.74, BMC for work performed. A certificate of appropriateness may be required if the site is located within the entryway overlay district or the neighborhood conservation overlay district. 18.34.170 BUILDING PERMITS BASED UPON APPROVED SKETCH OR SITE PLANS Based upon the approved sketch or final plan and after any appeals have been resolved, a building permit for the site may be requested and may be granted pursuant to Chapter 18.64, BMC. No building permit may be granted on the basis of an approved sketch or other plan whose approval has expired. 18.34.180 APPEALS Appeals of decisions rendered in conjunction with this chapter may be taken as set forth in Chapter 18.66, BMC. Section 2 That Section 18.64.010.B, Unified Development Ordinance, of the Bozeman Municipal Code be amended to read as follows: B. The Planning Director shall, upon recommendation from the DRC, DRB, ADR or WRB or other advisory body as may be applicable approve, approve with conditions or deny all applications subject to this title, except master site plans, conditional use permits, planned unit developments and subdivisions, those applications specifically reserved to another approval authority, or any application involving deviations or variances. Decisions of the Planning Director are subject to the appeal provisions of Chapter 18.66, BMC. 1. Exception. The City Commission may, by an affirmative, simple majority, vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the Planning Director. The vote shall occur prior to the action of the Planning Director. Section 3 Repealer 139 Page 19 of 20 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 4 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 5 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 6 Codification The provisions of Sections 1 and 2 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 7 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 140 Page 20 of 20 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 141