HomeMy WebLinkAboutBar IX Creek Patio Conditional Use Permit and Certicate of Appropriateness with Deviation, Application No. Z-11156.pdf
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Allyson Bristor, Associate Planner
Tim McHarg, Planning Director
SUBJECT: Bar IX Creek Patio Conditional Use Permit (CUP) and Certificate of
Appropriateness (COA) with a Deviation (DEV) application for the property located at 307-311
East Main Street requesting the after-the-fact approval of an installed concrete patio/seating area
within the required Bozeman Creek watercourse setback and the expansion of the sales of
alcohol for on-premise consumption within the concrete patio/seating area.
MEETING DATE: July 25, 2011
AGENDA ITEM TYPE: Action Item
RECOMMENDATION: That the City Commission approve the Bar IX Creek Patio
Conditional Use Permit and Certificate of Appropriateness with a Deviation application (#Z-
11156) with staff’s recommended conditions of approval.
RECOMMENDED MOTION: “Having reviewed the application materials, considered
public comment, and considered all of the information presented, I hereby adopt the
findings presented in the staff report for Z-11156 and move to approve Conditional Use
Permit and Certificate of Appropriateness with a Deviation application Z-11156 requesting
the after-the-fact approval of an installed concrete patio/seating area within the required
Bozeman Creek watercourse setback and the expansion of the sales of alcohol for on-
premise consumption within the concrete patio/seating area at 307-311 East Main Street,
hereby incorporating by reference the findings included in the staff report with conditions
and subject to all applicable code provisions.”
BACKGROUND: Extensive background information is included in the attached staff
report. Property owner Fairview Commercial Lending and Bar IX business owner Chad
Yurashak, represented by Springer Group Architects, submitted a revised Conditional Use
Permit (CUP) and Certificate of Appropriateness (COA) with a Deviation (DEV) application to
the Department of Planning on June 16, 2010 for the property addressed as 307-311 East Main
Street. The owners requested the application be reviewed by the City Commission (see attached
applicant materials). The City Commission reclaimed jurisdiction of the application by a
majority vote at their public hearing on June 27, 2011. Therefore, the City Commission is the
final decision making body for this CUP/COA/DEV application.
The application is requesting a CUP/COA/DEV application to allow the after-the-fact approval
of an installed concrete patio/seating area within the required Bozeman Creek watercourse
setback and the expansion of the sales of alcohol for on-premise consumption within the concrete
108
patio/seating area, pursuant to Title 18 of the Bozeman Municipal Code. This is the same
request that was submitted in the prior CUP application for this property (#Z-10200).
One deviation is required with the application, from Section 18.42.100, “Watercourse Setbacks,”
of the Bozeman Municipal Code to allow the concrete patio area to encroach into the required
35-foot watercourse setback from Bozeman Creek.
UNRESOLVED ISSUES: None at this time.
ALTERNATIVES:
1) Approval of the CUP/COA/DEV application with no conditions.
2) Approval of the CUP/COA/DEV with the recommended conditions as
amended by staff.
3) Denial of the CUP/COA/DEV application.
4) As determined by the Commission.
FISCAL EFFECTS: The standard application fee was received for the CUP/COA/DEV
application and sign permit and was added to the Department of Planning’s application fee
revenue.
Attachments: Staff Report, Applicant’s Materials, BOA Minutes
Report compiled on: July 14, 2011
109
City Commission Staff Report for Bar IX
Creek Patio Conditional Use
Permit/Certificate of Appropriateness/
Deviation Application #Z‐11156
Item: Conditional Use Permit/Certificate of Appropriateness/Deviation application for the property
addressed as 307 – 311 East Main Street, requesting the after-the-fact approval of an installed concrete
patio/seating area within the required Bozeman Creek watercourse setback and the expansion of the
sales of alcohol for on-premise consumption within the concrete patio/seating area, pursuant to Title 18
of the Bozeman Municipal Code. One deviation is from Section 18.42.100, “Watercourse Setbacks,” of
the Bozeman Municipal Code to allow the concrete patio area to encroach into the required 35-foot
watercourse setback from Bozeman Creek.
Property Owner: Fairview Commercial Lending, Inc., 1932 N. Druid Hills Road, Ste. 250, Atlanta, GA
30319
Business Owner: Chad Yurashak, 307 East Main Street, Bozeman, MT 59715
Applicant: Springer Group Architects, 201 South Wallace Avenue, Ste. A-1, Bozeman, MT 59715
Date submitted to the City Commission: July 14, 2011
City Commission public hearing date: July 25, 2011
Report By: Allyson Bristor, Associate Planner
Recommendation: Conditional Approval
______________________________________________________________________________
Project Location
The subject property is located at 307 – 311 East Main Street, which are located within in the building
known as the “Bozeman Annex.” The entire Bozeman Annex building includes the addresses 307, 311
and 315 East Main Street.
The property is legally described as Lot 14, and the west 19’-6” of Lot 15, Block D, Original Townsite,
City of Bozeman, Gallatin County, Montana. The zoning designation for said property is B-3 (Central
Business District) and it is located within the Main Street Historic District and the Neighborhood
Conservation Overlay District. Please refer to the vicinity map provided below.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 1110
Background Information
There is extensive background information for this project that is summarized in this section. On
February 9, 2010, the Board of Adjustment reviewed another Conditional Use Permit (CUP) application
for this same subject property. The application asked to allow a Montana “all-beverage” alcohol
beverage license within the commercial spaces addressed as 307 and 311 East Main Street. The BOA
granted preliminary conditional approval for the proposal. Final Site Plan approval was issued by the
Department of Planning on April 1, 2010. Final approval was granted after the applicant demonstrated
how all of the conditions of approval had or would be addressed. One of the included conditions stated:
“Existing outdoor seating on the existing 10’ 6” rear deck shall not be expanded, nor shall new
establishment of outdoor seating occur within the Bozeman Creek watercourse setback with the
approval of this Conditional Use Permit application.” Additionally, another condition read: “Any
expansion of this use or facility, or the addition of outdoor seating to the north of the existing rear deck
and along Bozeman Creek, is not permitted unless reviewed and approved as required under the
applicable regulations of the Bozeman Municipal Code.” As required with all CUP applications, all of
the conditions were recorded with the County Clerk and Recorder’s Office by the property owner prior
to the issuance of any building permits, final site plan approval or commencement of the conditional use.
This was completed by the property and business owner prior to Final Site Plan approval.
In August 2010, it came to the attention of the Bozeman Planning and Building Departments that a
concrete patio/seating area had been installed on the property north of the existing rear deck. The
business and property owners were immediately notified about their violation to their current CUP and
the process of remediation was explained to them in detail. Remediation first required the establishment
of a barricade that blocks the general public from accessing the area behind the building’s rear deck.
That was completed by August 8, 2010. Additionally, it was required that a new CUP and Certificate of
Appropriateness (COA) application with a deviation request, be submitted to the Planning Department.
That was done on August 20, 2010 and the application (Planning file #Z-10200) was scheduled for a
public hearing in front of the BOA public on September 14, 2010.
Several issues emerged from the discussion during the application’s review by the Development Review
Committee (DRC). First, being the receipt of several public nuisance complaints of a barbecue smoker
on the property. This issue has since been remedied, as the smoker was removed off the property (and
out of City of Bozeman jurisdiction). Additionally, it was recognized that structural
repairs/improvements to the existing deck area and ramp along the east side of the creek bank had to
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 2111
occur in order to meet current building code. The development team was notified of the requirement to
submit building permits to remedy the code deficiencies. This structural work was able to be approved
separately from this zoning application because it solely consisted of repair work to existing features and
didn’t involve the concrete patio/seating area. Because of the issues that emerged during the DRC
review, the application was opened and continued to the BOA meeting on October 12, 2010.
On October 12, 2010, the BOA reopened the public hearing and reviewed the application through a
standard public hearing process and unanimously voted to deny application #Z-10200. During the
application hearing, the existing ramp to the east of the Bozeman Creek came up during the discussion.
The ramp was identified to be partially located (two feet) on the neighboring property to the east, which
is the Bozeman Hotel (Bozeman Owners Association) property. The BOA determined the current
location of the Bar IX building’s egress (the existing ramp) was not adequate in size and topography to
properly relate the Bar IX requested outdoor alcohol serving area with the land and uses in the vicinity
because there was no recorded shared use agreement between the two property owners. Additionally, it
was determined the egress was not adequate in size for the requested use because it was not built to
current building code requirements. A copy of the hearing minutes are attached to this staff report.
With the BOA action of denial, the rear concrete patio that was poured without approval was considered
illegal and non-conforming. Therefore, the property and business owners were notified that under no
circumstances could it be used by the public or any operations of the Bar IX business. The owners were
also instructed to establish legal permission to use the existing ramp east of the Bozeman Creek for the
building’s required egress prior to submitting a new CUP application for the concrete patio serving area.
On November 9, 2010, Planning Staff brought a draft “Findings of Fact” document for the Bar IX
CUP/COA/DEV application denial to the BOA for their consideration (upon the City Attorney’s office
recommendation). The BOA voted to not approve the findings presented to them and claimed the
minutes of the meeting were sufficient in demonstrating the board’s reasoning for denial. See the
minutes attached with this report.
After several failed attempts to reach an understanding with their neighbor to the east (Bozeman Owners
Association) to establish a shared easement for the existing ramp, property owner Fairview Commercial
Lending decided to perform the necessary ramp repairs on its side of the shared property line alone. The
ramp was improved to current building code standards in spring of 2011 and currently, no longer resides
on the Bozeman Hotel property.
Proposal
Property owner Fairview Commercial Lending and Bar IX business owner Chad Yurashak, represented
by Springer Group Architects, submitted a revised Conditional Use Permit (CUP) and Certificate of
Appropriateness (COA) with a Deviation (DEV) application to the Department of Planning on June 16,
2010 for the property addressed as 307-311 East Main Street. The owners requested the application be
reviewed by the City Commission (see attached applicant materials). The City Commission reclaimed
jurisdiction of the application by a majority vote at their public hearing on June 27, 2011. Therefore, the
City Commission is the final decision making body for this CUP/COA/DEV application.
The application is requesting a CUP/COA/DEV application to allow the after-the-fact approval of an
installed concrete patio/seating area within the required Bozeman Creek watercourse setback and the
expansion of the sales of alcohol for on-premise consumption within the concrete patio/seating area,
pursuant to Title 18 of the Bozeman Municipal Code. This is the same request that was submitted in the
prior CUP application for this property (#Z-10200).
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 3112
One deviation is required with the application, from Section 18.42.100, “Watercourse Setbacks,” of the
Bozeman Municipal Code to allow the concrete patio area to encroach into the required 35-foot
watercourse setback from Bozeman Creek.
Recommended Conditions of Approval
The Department of Planning and the Development Review Committee reviewed the Conditional Use
Permit and Certificate of Appropriateness application, with one deviation request, and as a result
recommend to the City Commission approval of said application with the conditions and code
provisions outlined in this staff report (listed below). Planning Staff has identified various code
provisions that are currently not met by this application. Some or all of these items are listed in the
findings of this staff report. The applicant must comply with all provisions of Title 18, BMC, which are
applicable to this project, prior to receiving final approval. The applicant is advised that unmet code
provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any
way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or
State law.
Conditions of Approval
1. All amplified noise and sound produced from inside or outside the building shall not be audible
beyond the property lines immediate to the concrete patio area (east, west and north) to the
extent that such sound disturbs the quiet, comfort, or repose of any normally sensitive and
reasonable person.
2. The proposed fence along Bozeman Creek’s west bank shall be redesigned so that it is in the
same style, design and materials as one of the existing deck and ramp balustrades. A copy of the
revised fence drawings, with material and color notations, shall be included with the final site
plan materials.
3. The applicant shall provide documentation (such as a parking lease agreement) to the
Department of Planning that shows permission to use the parking space proposed for the new
location of trash collection.
4. The ramp/walkway east of the Bozeman Creek shall be kept free and clear of tables to allow
adequate egress from the building.
5. No outdoor storage is allowed on site. Refuse shall not be temporarily stored along the
ramp/walkway east of the Bozeman Creek and every effort shall be made to control litter from
blowing out of the outdoor seating area.
6. No outdoor food cookery equipment of any kind (including smokers and grills) is not permitted
unless reviewed and approved as required under the applicable regulations of the Bozeman
Municipal Code.
7. A watercourse setback planting plan, for all the remaining green areas within the watercourse
setback, shall be prepared by a qualified landscape professional and shall be reviewed and
approved by the Department of Planning & Community Development with the Final Site Plan
application. The planting plan shall include new or existing native materials suited for a riparian
area and follow the guidelines specified in Section 18.42.100.B.6 of the BMC.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 4113
8. A copy of the amended State Revenue Department liquor license for the addition of the creek
patio serving area shall be submitted to the Department of Planning & Community Development
prior to the sale and consumption of alcoholic beverages in the creek patio serving area.
9. The applicant shall amend the City of Bozeman Liquor License for the addition of the creek
patio serving area if necessary, and provide the Department of Planning & Community
Development with a copy of the amended license prior to the sale and consumption of alcoholic
beverages in the creek patio serving area.
10. The right to serve alcohol to patrons in the creek patio serving area is contingent upon fulfillment
of all general and special conditions imposed with this Conditional Use Permit, and further, is
revocable at any time based on substantial complaints from the public and adequate findings
from the Bozeman Police Department regarding violations of the City of Bozeman’s open
alcohol container, minor in possession of alcohol, or any other applicable law regarding
consumption and/or possession of alcohol.
11. If any catering with alcoholic beverages occurs, the applicant shall obtain a catering endorsement
from the Department of Revenue, Liquor Division, as well as a City catering license, for each
catered event.
12. Any expansion of this use or facility, or the expansion or modification of seating/serving area, is
not permitted unless reviewed and approved as required under the applicable regulations of the
Bozeman Municipal Code.
13. The decorative sidewalk section on Main Street near the front building entrance shall be repaired
to eliminate any trip hazard.
Recommended Code Provisions
a. Section 18.42.150 provides the requirements for lighting on site. All lighting must be in
conformance with this section.
b. Section 18.74 requires that if final plat approval, occupancy of buildings or other utilization of
an approved development is to occur prior to the installation of all required on-site
improvements, an Improvements Agreement must be secured by a method of security equal to
one and one-half times the amount of the estimated cost of the scheduled improvements not yet
installed. Said method of security shall be valid for a period of not less than twelve (12)
months; however, the applicant shall complete all on-site improvements within nine (9) months
of occupancy to avoid default on the method of security.
c. Section 18.34.100.C states that the right to a conditional use permit shall be contingent upon
the fulfillment of all general and special conditions imposed by the Conditional Use Permit
procedure. All special conditions and code provisions shall constitute restrictions running with
the land, shall be binding upon the owner of the land, his successors or assigns, shall be
consented to in writing by the applicant prior to commencement of the use and shall be
recorded as such with the Gallatin County Clerk and Recorder’s Office by the property owner
prior to the final site plan approval or commencement of the use. All of the conditions and
code provisions specifically stated under any conditional use listed in this title shall apply and
be adhered to by the owner of the land, successor or assigns.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 5114
d. Section 18.34.130, “Final Site Plan,” no later than six months after the date of approval of a
preliminary site plan (CUP) or master site plan, the applicant shall submit to the Department of
Planning eight (8) copies of final site plan materials. The final site plan shall contain all of the
conditions, corrections and modifications approved as part of the CUP and variance review and
approval process by the City.
e. Section 18.34.140 states that a Building Permit must be obtained prior to the work, and must be
obtained within one year of Final Site Plan approval. Building Permits will not be issued until
the Final Site Plan is approved.
f. Section 18.74.030.A requires that the applicant shall provide certification by the architect,
landscape architect, engineer or other applicable professional that all improvements, including
but not limited to, landscaping, private infrastructure and other required elements were
installed in accordance with the approved site plan, plans and specifications.
g. Section 18.34.100. F. Termination/ Revocation of Conditional Use Permit approval:
1. Conditional use permits are approved based on an analysis of current local
circumstances and regulatory requirements. Over time these things may change and
the use may no longer be appropriate to a location. A conditional use permit will be
considered as terminated and of no further effect if:
a. After having been commenced, the approved use is not actively conducted on
the site for a period of two continuous calendar years;
b. Final zoning approval to reuse the property for another principal or
conditional use is granted;
c. The use or development of the site is not begun within the time limits of the
final site plan approval in Section 18.34.130, BMC.
2. A conditional use which has terminated may be reestablished on a site by either, the
review and approval of a new conditional use permit application, or a determination
by the Planning Director that the local circumstances and regulatory requirements
are essentially the same as at the time of the original approval. A denial of renewal
by the Planning Director may not be appealed. If the Planning Director determines
that the conditional use permit may be renewed on a site then any conditions of
approval of the original conditional use permit are also renewed.
3. If activity begins for which a conditional use permit has been given final approval,
all activities must comply with any conditions of approval or code requirements.
Should there be a failure to maintain compliance the City may revoke the approval
through the procedures outlined in Section 18.64.160, BMC.
h. A Stormwater Drainage/Treatment Grading Plan and Maintenance Plan for a system designed
to remove solids, silt, oils, grease, and other pollutants must be provided to and approved by
the City Engineer. The plan must demonstrate adequate site drainage (including sufficient spot
elevations), stormwater detention/retention basin details (including basin sizing and discharge
calculations and discharge structure details), stormwater discharge destination, and a
stormwater maintenance plan.
i. A floodplain development permit shall be received prior to undertaking any work within the
designated 100-year floodplain or floodway of Bozeman Creek.
Zoning Designation & Land Uses
The property is zoned as B-3 (Central Business District) and is located within the Main Street Historic
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 6115
District and the Neighborhood Conservation Overlay District. The intent of the B-3 commercial zoning
district is to provide a central area for the community’s business, government service and cultural
activities. Uses within this district should be appropriate to such a focal center with inappropriate uses
being excluded. It is the intent of this district to encourage high volume, pedestrian-oriented uses in the
ground floor space in the “core area” of Bozeman’s central business district, i.e., along Main Street from
Grand Avenue to Rouse Avenue and to the alleys one-half block north and south from Main Street.
The property is surrounded by B-3 zoned property and commercial uses (business offices, financial
bank, restaurants, bars, retail businesses, etc.).
Adopted Growth Policy Designation
The property is designated as “Community Core” in the Bozeman Community Plan. The traditional
core of Bozeman is the historic downtown. This area has an extensive mutually supportive diversity of
uses, a strong pedestrian and multi-modal transportation network, and a rich architectural character.
Essential government services, places of public assembly, and open spaces provide the civic and social
core of town. Residential development on upper floors is well established. New residential uses should
be high density. The area along Main Street should be preserved as a place for high pedestrian activity
uses, with strong pedestrian connectivity to other uses on nearby streets. Users are drawn from the
entire planning area and beyond. The intensity of development is high with a Floor Area Ratio well
over 1. Future development should continue to be intense while providing areas of transition to adjacent
areas and preserving the historic character of Main Street.
Review Criteria & Staff Findings
Section 18.28.050 “Standards for Certificates of Appropriateness”
Section 18.28.050 specifies the required standards for granting Certificate of Appropriateness approval.
In the discussion below, Administrative Design Review (ADR) Staff evaluated the applicant's request in
light of these standards.
A. All work performed in completion of an approved Certificate of Appropriateness shall be in
conformance with the most recent edition of the Secretary of Interior’s Standards for the
Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and
Reconstructing Historic Buildings (Published 1995), published by U.S. Department of the Interior,
National Park Service, Cultural Resource Stewardship and Partnerships, Heritage Preservation
Services, Washington, D.C. (available for review at the Department of Planning).
The installation of a concrete patio/seating area behind the building is found to be in conformance with
the Secretary of Interior’s Standards for the Treatment of Historic Properties. The concrete installation
did not alter the form of the building in any way. Nor did it alter the spatial arrangement of the
property’s rear yard area.
B. Architectural appearance design guidelines used to consider the appropriateness and
compatibility of proposed alterations with original design features of subject structures or
properties, and with neighboring structures and properties, shall focus upon the following:
1. Height;
The concrete slab is slightly higher than grade level.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 7116
2. Proportions of doors and windows;
Not applicable.
3. Relationship of building masses and spaces;
The concrete patio/seating area does not alter the existing building’s form. It also does not alter
the spatial arrangement of the property’s rear yard area.
4. Roof shape;
Not applicable.
5. Scale;
The size of the concrete patio area is not larger than the area that was previously dirt and broken
concrete slab. Staff finds the scale of the patio area as appropriate in size.
6. Directional expression;
The concrete patio/seating area does not alter the spatial arrangement of the property’s rear yard
area, nor does it alter the directional expression of the existing building.
7. Architectural details;
As conditioned, Staff is requiring a redesign of the proposed fence along the Bozeman Creek
west bank so that it better matches the style and design of the existing balustrade of the rear deck
or repaired ramp.
8. Concealment of non-period appurtenances, such as mechanical equipment;
A code provision states all mechanical equipment shall be screened. Any newly proposed
rooftop equipment should be incorporated into the roof form and ground mounted equipment
shall be screened with walls, fencing or plant materials.
9. Materials and color scheme;
As conditioned, a copy of the revised fence drawings with material and color notations, shall be
included with the final site plan materials.
C. Contemporary, nonperiod and innovative design of new structures and additions to existing
structures shall be encouraged when such new construction or additions do not destroy significant
historical, cultural or architectural structures, or their components, and when such design is
compatible with the foregoing elements of the structure and the surrounding structures.
The concrete patio/seating area and the proposed fence, with the recommended conditions of approval
and applicable code provisions, are found to preserve significant historical, cultural or architectural
structures on the site.
D. When applying the standards of subsections A-C, the review authority shall be guided by the
Design Guidelines for the Neighborhood Conservation Overlay District which are hereby
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incorporated by this reference. When reviewing a contemporary, non-period, or innovative design
of new structures, or addition to existing structure, the review authority shall be guided by the
Design Guidelines for the Neighborhood Conservation Overlay District to determine whether the
proposal is compatible with any existing or surrounding structures.
The Design Guidelines for the Neighborhood Conservation Overlay District were referenced when
reviewing the proposal against the architectural appearance guidelines as discussed earlier in this
section.
E. Conformance with other applicable development standards of this title.
Please see the code provisions beginning on page 5 of this report.
Section 18.28.070 “Deviations from Underlying Zoning Requirements”
Section 18.28.070 specifies the required criteria for granting deviations from the underlying zoning
requirements. In the discussion below, ADR Staff evaluated the applicant's request in light of these
criteria.
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;
Staff finds the poured concrete patio/seating area more historically appropriate for the building.
The other potential development option for the rear yard area is a rear addition to the existing
building, which Staff would find as a negative effect to the historic characters of the site because
it would change the open character of the Bozeman Creek setback. The concrete patio area is
minor in scale and does not negatively alter the existing building, or neighboring buildings. Nor
does the concrete patio area negatively alter Bozeman Creek, because it does not extend to the
creek’s watercourse bank. A buffer is proposed between the concrete patio and the creek’s bank,
which will be visually clear with the construction of a fence. Additionally, the natural
characteristics of the Bozeman Creek setback will be improved by Staff’s condition of creating a
setback planting plan for the area along the Creek bank and between the proposed fence.
It is the determination of ADR Staff that, with conditions of approval and compliance with code
provisions, the project generally meets Criteria A of Section 18.28.070 “Deviations from
Underlying Zoning Requirements,” of the Bozeman Unified Development Ordinance, B.M.C.
B. Modifications will have minimal adverse effect on abutting properties or the permitted uses
thereof;
With all the recommended conditions, which include submitting a stormwater and drainage plan
that demonstrates how runoff is retained on the site and the mitigation of noise, Staff believes the
concrete patio/seating area will have minimal adverse effect on abutting properties.
It is the determination of ADR Staff that, with conditions of approval and compliance with code
provisions, the project generally meets Criteria B of Section 18.28.070 “Deviations from
Underlying Zoning Requirements,” of the Bozeman Unified Development Ordinance, B.M.C.
C. Modifications shall assure the protection of the public health, safety and general welfare.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 9118
It is the determination of ADR Staff that, with conditions of approval and compliance with code
provisions, the project generally meets Criteria C of Section 18.28.070 “Deviations from
Underlying Zoning Requirements,” of the Bozeman Unified Development Ordinance, B.M.C.
Section 18.34.100, “Consideration and Findings for Conditional Use Permits”
In addition to the review criteria below, the City Commission shall, in approving a conditional use
permit, find favorably as follows:
1. That the site for the proposed use is adequate in size and topography to accommodate such
use, and all yards, spaces, walls and fences, parking, loading and landscaping are adequate to
properly relate such use with the land and uses in the vicinity.
The commercial site is located within the City’s designated commercial core, which promotes high
pedestrian activity uses (such as restaurants, bars, retail, etc.). The commercial site is adequate in
size and topography to accommodate the expansion of outdoor seating to a concrete patio area that is
located along the Bozeman Creek. Additionally, the site is adequate to accommodate the expansion
of alcohol serving area for on-site consumption because adequate egress is provided to the recently
repaired ramp on the east side of the property. This particular commercial site is actually larger than
other downtown properties that accommodate similar uses. Therefore, Staff finds the commercial
site as adequate in yards, spaces, walls and fences, parking, loading and landscaping to properly
relate the restaurant/bar use with the land and uses in the commercial 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.
Following review of the proposed application with the inclusion of the recommended conditions,
Staff finds that the proposed use will have no material adverse effect upon abutting properties.
Particular conditions that Staff finds to provide the most protection against adverse effect are
Conditions #1, #6, #7 and #10 (located on pages 4 and 5 of this report). These conditions address
noise mitigation as it is relevant to the rear concrete patio area, public nuisance mitigation as it is
relevant to cookery equipment, landscape improvements to the watercourse setback, and public
safety concerns as related to the consumption of alcohol.
3. That any additional conditions stated in the approval are deemed necessary to protect the
public health, safety and general welfare. Such conditions may include, but are not limited to:
regulation of use; special yards, spaces and buffers; special fences, solid fences and walls;
surfacing of parking areas; requiring street, service road or alley dedications and
improvements or appropriate bonds; regulation of points of vehicular ingress and egress;
regulation of signs; requiring maintenance of the grounds; regulation of noise, vibrations and
odors; regulation of hours for certain activities; time period within which the proposed use
shall be developed; duration of use; requiring the dedication of access rights; other such
conditions as will make possible the development of the City in an orderly and efficient
manner.
Staff has identified, through the review process, recommended project conditions that are included to
protect the public health, safety, and general welfare. Recommended conditions address the
following: fences (Condition #2), regulation of use (all conditions with exception to #2), and
regulation of noise (Condition #1). Please see the recommended conditions of approval beginning
on page 4 of this report.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 10119
Section 18.34.090, “Site Plan Review Criteria”
In considering applications for a Conditional Use Permit for the on-premise consumption of alcohol
beverages, the City Commission, the Development Review Committee, and when appropriate, the
Administrative Design Review Staff shall review the application against the Site Plan Review
requirements of 18.34.090 as follows:
1. Conformance to and consistency with the City’s adopted growth policy
The development proposal is in conformance with the Bozeman 2020 Community Plan including the
“Community Core” land use designation.
2. Conformance to this title, including the cessation of any current violations
The applicant is advised that unmet code provisions, or code provisions that are not specifically
listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the
lawful requirements of the Bozeman Municipal Code or state law. The following code provisions
that must be addressed prior to final site plan approval are listed on pages 5 and 6 of this report.
3. Conformance with all other applicable laws, ordinances, and regulations;
All other applicable laws, ordinances, and regulations must be followed. All conditions for a
Conditional Use Permit and a Certificate of Appropriateness must be met prior to final approval.
4. Relationship of site plan elements to conditions both on and off the property;
The concrete patio/seating area does not alter the spatial arrangement of the property’s rear yard
area.
5. The impact of the proposal on the existing and anticipated traffic and parking conditions;
Parking requirements for the entire Bozeman Annex building must be considered with this
application. A wine store (retail use) is located at 315 East Main Street. Office use is proposed on
the second floor of the entire building. Storage use is proposed on the basement floor of the entire
building. The parking calculations for 307 – 311 East Main Street were updated from the last
Conditional Use Permit application to include the additional outdoor seating area that would exist on
the concrete patio/seating area. Several Unified Development Ordinance amendments were recently
approved by the City Commission, including the statement that the first 3,000 gross square feet of a
non-residential building within the B-3 district is not required to provide parking. The applicant
requested their application to be considered under the new zoning code. With this allowable
reduction, the building’s total parking demand is 16.06 spaces, or 16 spaces. The building has 26.8
spaces available as stated in the Downtown Parking SID 565.
6. destrian and vehicular ingress and egress; Pe
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;
Emergency pedestrian egress is being provided by the existing rear ramp east of the Bozeman Creek.
Emergency vehicular access is provided both at the front and rear of the building.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 11120
As conditioned in Condition #7 on page 4 of this staff report, a watercourse setback planting
all the remain
plan for
ing green areas within the watercourse setback shall be prepared by a qualified
landscape professional and shall be reviewed and approved by the Department of Planning &
8.
No open space is required or proposed with this application.
. Building location and height;
No physical alterations are proposed for the existing building. The location and building height will
0.
This proposed use is within an existing building. All setbacks on site are considered legal and
1.
No changes to lighting are proposed as part of this application.
2. Provisions for utilities, including efficient public services and facilities;
As provisioned by Engineering, the location of existing and proposed water/sewer mains and
hydrants. Proposed
utilities shall be distinguishable from existing.
13.
As provisioned by Engineering, a Stormwater Drainage/Treatment Grading Plan and Maintenance
remove solids, silt, oils, grease, and other pollutants must be provided
to and approved by the City Engineer. The plan must demonstrate adequate site drainage (including
14.
The concrete patio/seating area improves the property’s ability to load and unload materials
l businesses.
15.
The grading affiliated with the concrete installation has already occurred. As provisioned by
tormwater Drainage/Treatment Grading Plan and Maintenance Plan for a system
designed to remove solids, silt, oils, grease, and other pollutants must be provided to and approved
Community Development with the Final Site Plan application.
Open space;
9
remain unchanged.
1 Setbacks;
conforming.
1 Lighting;
1
services shall be properly depicted, as well as nearby fire hydrants and proposed
Site surface drainage;
Plan for a system designed to
sufficient spot elevations), stormwater detention/retention basin details (including basin sizing and
discharge calculations and discharge structure details), stormwater discharge destination, and a
stormwater maintenance plan.
Loading and unloading areas;
affiliated with the existing commercia
Grading;
Engineering, a S
by the City Engineer.
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 12121
16.
No new signage is proposed at this time. Any new signage requires a Certificate of Appropriateness
sign permit that must be reviewed and approved by the Department of Planning prior
to installation.
17.
All mechanical equipment shall be screened. Any newly proposed rooftop equipment should be
the roof form and ground mounted equipment shall be screened with walls, fencing
or plant materials.
18.
The subject commercial spaces are located within the Neighborhood Conservation Overlay District.
OA) was required with this Conditional Use Permit application
because of the installation of a concrete patio/seating area and perimeter fence.
19.
As of the writing of this staff report, no letters of public comment have been received by the
er the date of
this staff report will be distributed to the City Commission at the public hearing.
20.
or
;
b. The subject of reciprocal and perpetual easements or other agreements to which the City is
a p
he Department of Planning & Community Development did not receive any public comment prior to
rt to the City Commission. Any comment received after this report submittal
ill be forwarded to the Commission prior to the public hearing.
Signage;
application and
Screening;
incorporated into
Overlay district provisions;
A Certificate of Appropriateness (C
Other related matters, including relevant comment from affected parties;
Department of Planning and Community Development. Any comments received aft
If the development includes multiple lots that are interdependent for circulation or other
means of addressing requirement of this title, whether the lots are either:
a. Configured so that the sale of individual lots will not alter the approved configuration
use of the property or cause the development to become nonconforming
arty so that the sale of individual lots will not cause one or more elements of the
development to become nonconforming.
Not applicable.
PUBLIC COMMENT
T
submitting this staff repo
w
CONCLUSION
The Department of Planning and the Development Review Committee reviewed the Conditional Use
cate of Appropriateness application, with one deviation request, for the property
nown as 307 – 311 East Main Street, and as a result recommend to the City Commission approval of
d as
Permit and Certifi
k
said application with the conditions and code provisions outlined in this staff report on pages 4 and 5.
Planning Staff has identified various code provisions that are currently not met by this application.
Some or all of these items are listed in the findings of this staff report. The applicant must comply with
all provisions of Title 18, BMC, which are applicable to this project, prior to receiving final approval.
The applicant is advised that unmet code provisions, or code provisions that are not specifically liste
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 13122
#Z-11156 Bar IX Creek Patio CUP/COA/DEV Staff Report 14
conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful
requirements of the Bozeman Municipal Code or State law.
THE BOZEMAN CITY COMMISSION RECLAIMED JURISDICTION OF THIS
APPLICATION, AND THEREFORE SHALL MAKE THE FINAL DECISION ON THIS
APPLICATION. THE DECISION OF THE CITY COMMISSION MAY BE APPEALED BY
AN AGGRIEVED PERSON AS SET FORTH IN CHAPTER 18.66 OF THE BOZEMAN
UNIFIED DEVELOPMENT ORDINANCE.
Encl: Applicant submittal materials
BOA minutes from October 12 and November 9, 2010
nc., 1932 N. Druid Hills Rd., Ste. 250, Atlanta, GA 30319
715
South Wallace Ave., Ste. A-1, Bozeman, MT 59715
CC: Fairview Commercial Lending, I
Chad Yurashak, 307 East Main Street, Bozeman, MT 59
Springer Group Architects, 201
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Board of Adjustment Minutes – October 12, 2010
BOARD OF ADJUSTMENT
TUESDAY, OCTOBER 12, 2010
MINUTES
ITEM 1. CALL TO ORDER AND ATTENDANCE
Chairperson Pomnichowski called the meeting of the Board of Adjustment to order at 6:03 p.m.
in the City Commission Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman,
Montana and directed the secretary to record the attendance.
Members Present Staff Present
Ed Sypinski, Vice Chairperson Tim McHarg, Planning Director
Dan Curtis Allyson Bristor, Associate Planner
Richard Lee Courtney Kramer, Assistant Planner
Pat Jamison Chris Saunders, Assistant Planning Director
Cole Robertson Tara Hastie, Recording Secretary
JP Pomnichowski, Chairperson
Chris Mehl, Commission Liaison
Members Absent Visitors Present
Caroline Adams
ITEM 2. MINUTES OF SEPTEMBER 14, 2010
MOTION: Vice Chairperson Sypinski moved, Ms. Jamison seconded, to approve the minutes
of September 14, 2010 as presented. The motion carried 5-0. Those voting aye being Ms.
Jamison, Mr. Curtis, Mr. Lee, Chairperson Pomnichowski, and Vice Chairperson Sypinski; those
voting nay being none.
ITEM 3. PUBLIC COMMENT – (15 – 20 minutes)
{Limited to any public matter, within the jurisdiction of the Board Of Adjustment, not on
this agenda. Three-minute time limit per speaker.}
Seeing no general public comment forthcoming, the public comment period was closed.
ITEM 4. PROJECT REVIEW
1. Altemus/Salter CUP/DEV #Z-10241 (Bristor)
15-17 South 5th Avenue
* A Conditional Use Permit with a Deviation Application to allow the lawful
establishment of office use on the property with less than the required number of
parking spaces for the structure.
Opened and continued to 11/9/10 to allow the applicant to submit additional materials and more Staff
review time.
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Chairperson Pomnichowski opened the item for public comment. Seeing none forthcoming, Chairperson
Pomnichowski opened and continued the item to the next meeting of the BOA.
2. Bar IX Creek Patio CUP/COA/DEV #Z-10200 (Bristor)
307-311 East Main Street
* A Conditional Use Permit with a Certificate of Appropriateness Application with
a Deviation to allow the after-the-fact approval of the installation of a concrete
patio/seating area within the required Bozeman Creek watercourse setback and to
allow the expansion of the alcohol serving area (for on-premise consumption) to
include the patio area. (Continued from 9/14/10.)
Associate Planner Allyson Bristor introduced the development noting the proposed project was a
Conditional Use Permit/COA with one deviation request.
Mr. Robertson joined the BOA.
Planner Bristor noted the proposal was for the after the fact approval of the concrete patio seating area and
noted the CUP was required to allow the expansion of the alcohol serving area to that concrete patio. She
noted the deviation was to allow the patio to be located within the required setback for Bozeman Creek.
She noted the BOA had reviewed a previous application for the on-premise consumption of alcohol for the
building interior and the existing rear deck; final approval was granted on April 1, 2010 after all applicable
conditions of approval and code provisions had been met. She stated there had been conditions regarding
the requirement of additional review and approval for outdoor seating in the watercourse setback; the
concrete pad had been installed without approval from the City north of the existing deck and west of the
creek; the owner was noticed of their violation and the proposal was their attempt at remediation. She
directed the BOA to photographs of the site and noted the location of the existing rear deck immediately
north of the building. She stated she had done a rough estimate of where the 35 foot setback exists and
noted that location on the site map. She stated the City’s Project Engineer was in attendance to answer any
questions pertaining to the floodway. She stated public notice had been given in the paper, posted on site,
and sent to adjoining property owners. She stated there had been two comments submitted by members of
the public. The first spoke to excessive noise from the bar’s front entrance; the police department had
been working with the property owner as well as the adjacent owner with the noise concern; the call
statistics indicated there were no immediate concerns with how the business was operating though the
owner was currently working with adjacent owner to mitigate the noise. She stated the police had visited
the site at night and identified the excessive noise coming from the Pita Pit and the Pourhouse as well as
Bar IX. The second letter of public comment spoke more to a civil dispute with the Bozeman Hotel
Owners Association; that issue is separate from the current application. She stated that Staff was
supportive of the proposal with Staff conditions of approval and found the site to be adequate in size and
location to accommodate outdoor seating and additional alcohol serving area. She stated the site was
larger than some of the downtown properties accommodating similar uses. She stated Staff had identified
specific conditions regarding public health, safety, and human welfare; she directed the BOA to page 4 of
the Staff Report.
Mr. Lee stated he was concerned about the small part of the property owned by the Bozeman Hotel and
asked how the proposal could be approved without the issue being settled. Planner Bristor responded the
ownership was not the issue regarding the current proposal as no part of the concrete patio was in question
as to ownership.
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Mr. Robertson asked if the original CUP approval had addressed the use of the patio and the ramp.
Planner Bristor responded the first CUP did not have exterior modifications proposed (no Certificate of
Appropriateness) but did include as a condition the requirement for additional approval for the seating area
in a watercourse setback. Mr. Robertson responded those items were outlined in the conditions of
approval. Planner Bristor responded the applicant was notified of those conditions. Mr. Robertson asked
if a Building Permit was submitted for the concrete pad. Planner Bristor responded the installation had
occurred near the time of Sweet Pea festival (first weekend of August 2010) and she didn’t believe the
Building Department approval had occurred.
Vice Chairperson Sypinski asked the procedure when an applicant violates conditions of approval.
Planner Bristor responded that typically a property owner is contacted and notified of a violation. In this
case, the applicant had been contacted and noticed of a violation. Vice Chairperson Sypinski stated he was
concerned that the applicant was not aware of the condition of approval. Planner Bristor responded Staff
was also concerned. Director McHarg added the patio itself did not require a Building Permit as it was
considered flatwork and noted it in no way spoke to the conditions of approval from Planning review.
Vice Chairperson Sypinski stated the applicant was to have come before the BOA prior to the expansion of
the outdoor seating; he asked Attorney Cooper to address The Bozeman Hotel public comment. Attorney
Cooper responded that any application for use of the property whether the conditions were on or off the
property could be considered as part of the review of the proposal. He stated the requirement was as much
Building Department and Planning Department jurisdiction; he added that legally a secondary emergency
egress had to be included and had been provided for many years along the existing ramp though he had
seen no documentation establishing an agreement, easement, or right to use the ramp. He stated there were
alternatives if the applicant could not work the issue out with the adjacent property owner and the BOA
could include conditions that they deemed necessary to protect public health, safety, and human welfare.
Vice Chairperson Sypinski asked if there were enough parking spaces for the establishment. Planner
Bristor responded there had been no identified shortage of parking.
Ms. Jamison asked if any follow up letters had been received from Ms. Milner. Planner Bristor responded
there had not been further correspondence to her, but thought there may have been communications with
Officer Marty Kent that were not forwarded to Planning Staff.
Mr. Lee asked if the concrete slab had been built to current code. Planner Bristor responded she would
feel more comfortable if Mr. Risk from the Building Division answered that question. Mr. Risk responded
that the slab did not require a Building Permit as it was a non-structural slab where grading and thickness
were the primary concerns; he added the pad appeared to meet those requirements but would need to meet
further requirements once seating was installed.
Mr. Robertson asked if the structural upgrades to the existing rear deck would require Building Division
inspection and if the inspection had occurred. Mr. Risk responded the inspections were in process, but
currently on hold. Mr. Robertson asked if it would be alright for the applicant to use the deck area even
though the work had not been completed. Mr. Risk responded the applicant could temporarily use the
deck area, but would need to install or provide the secondary egress if the existing ramp no longer can be
used.
Mr. Mehl stated it was his understanding that the concrete pad was not in use. Mr. Risk clarified that he
was referring to temporary use of the existing deck area while the concrete patio was not in use at this
time. Mr. Mehl asked if the procedure was common for this type of violation. Planner Bristor responded
the situation was somewhat unique because the Planning and Building Department sent the violation notice
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instead of Code Enforcement Staff. Mr. Mehl asked Attorney Cooper if the BOA could make approval
contingent on the applicant and adjacent owner working out the ownership issue. Attorney Cooper
responded he would not recommend including the ownership in the approval and suggested the
demonstration of egress could be included.
Chairperson Pomnichowski asked if the original approval could be revoked. Attorney Cooper responded
the original approval could be revoked but may or may not be accepted by the applicant; the Supreme
Court had recently ruled for the destruction of a property not meeting the conditions of approval.
Chairperson Pomnichowski asked how Staff could find that the proposal could be approved given that
section 18.42 addressed watercourse setbacks and disallowed the installation of impervious surfaces unless
it was through a deviation. Planner Bristor responded the deviation was what was being considered
tonight. Chairperson Pomnichowski stated she would be far more likely to find favorably for the
application if there was some requirement for a pervious surface to be installed such as scored concrete to
prevent flooding; she asked how the proposal met the requirement for no impervious surfaces in the
setback. Planner Bristor responded Staff did not believe there was a need to remove the existing concrete
pad to replace it with an impervious surface. Chairperson Pomnichowski asked why the noncompliant
feature had not been required to be removed. Planner Bristor restated the application in front of the Board
tonight was the applicant’s opportunity to get approval before it was removed; overall Staff believes the
outdoor seating area to be an asset to the downtown area. Chairperson Pomnichowski asked the same
question of Director McHarg. Director McHarg responded the applicant was within his rights to make the
request; in Planning Staff’s view, the feature was in a built environment with a significant amount of
impervious surface for that part of town. Chairperson Pomnichowski stated she agreed the area would be
nice for use, but she did not see why the Staff Report was supportive of the proposal even though it was a
violation of the conditions of approval. Mr. McHarg responded the BOA could find the application not to
be in keeping with the review criteria. Attorney Cooper responded the BOA should look at the findings of
Staff and agree or disagree with those findings.
Mr. Lee stated a report from Madison Engineering had been submitted that indicated the stream had not
flooded in that location to address those concerns.
Lowell Springer addressed the BOA. He stated he was the architect working with the owner on the
proposal as well as the original application. He apologized the application had come to the BOA with the
work already being done. He stated the applicant had intended to come back to the BOA for approval of
the expansion of the outdoor seating area; he added he should have discussed the conditions of approval
with the applicant and some of the blame was his. He stated the back yard area of the building had been
dirt and mud had been tracked into the establishment; a patron of Bar IX had indicated who would need to
be contacted to add a concrete pad and those entities had not indicated he would need to go back to the
City for review and approval. He stated the concrete had been poured prior the City issuing a stop work
order though the issue had been discovered prior to the installation. He stated a continuous drain on the
stream side would be included to let the water runoff the slab into the creek. He stated Mr. Yurashak was
a young, aggressive businessman that regretted his mistakes; he added it was hard to know all of the
approvals necessary for the project. He stated he believed the project would enhance the entire area and
would be a good addition to the City; they were amenable to Staff conditions of approval though they
might have questions on one or two of them.
Chad Yurashak addressed the BOA. He apologized for not obtaining the necessary approvals for the
concrete patio to be installed and he was not aware he would be in violation of the conditions of approval
for the previous CUP Application. He stated he blocked off the area immediately after he was noticed of
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the issue. He stated a drain had been included to address the impervious surface and he hoped that it
would be enough. He stated they were continuing work on the existing deck seating area to bring it up to
code but the egress issue had been stalled until the ownership issues were resolved. He stated he had
spoken with Nishkian Monks to determine another method of egress if the shared use isn’t established.
Mr. Springer stated the applicant had been working on the interior of the building and there was a six inch
deflection over the creek that could have been catastrophic; Mr. Risk had identified that the deck structure
needed upgraded. He stated there had never been a question about the easement where the ramp was
located; he added there was a way to include the ramp independently of the easement if it were four feet
wide though he would prefer to see the owners work the ownership issue out. He stated he hoped the BOA
would see that the error had occurred unintentionally.
Mr. Robertson asked why the loft area had not been represented on the plans and if was represented in the
parking calculations. Mr. Springer responded the parking had been calculated with the inclusion of the loft
square footage.
Vice Chairperson Sypinski asked if the applicant had received any indication from the non-City entities
that approved the concrete slab that it would be located within the watercourse setback. Mr. Springer
responded they had heard no such recommendations.
Mr. Robertson asked Mr. Yurashak if there were plans to allow smoking in the outdoor seating area. Mr.
Yurashak responded it was difficult to force people not to smoke so he would provide a separate area for
smokers. Mr. Robertson stated the State websites included recommendations for outdoor smoking such as
a setback requirement; he suggested the smoke could directly vent into the interior building area and
suggested the applicant investigate some of those options. Mr. Yurashak responded it was difficult, if not
impossible, to detour people from smoking; he would prefer to have a designated smoking area and he felt
it was his responsibility to maintain the streets and provide a designated area for smokers to help contain
the refuse.
Chairperson Pomnichowski asked Mr. Springer to clarify which questions he had regarding Staff
conditions of approval. Mr. Springer responded condition #2 addressed the alley fence which they did not
intend to work on at this time and he had investigated an underflow waterwheel to water the vegetation in
the alley while maintaining the interest of a water feature. He stated Planner Bristor, Planning Staff, and
the Building Division had done a thorough review of the proposal. Chairperson Pomnichowski stated
water feature language had been removed. Mr. Springer responded it had been removed and would be
submitted for review at a later date.
Chairperson Pomnichowski opened the item for public comment.
Brian Stoppel, 2340 Butch Cassidy Drive, stated he was one of the owners of the Bozeman Hotel as well
as the contract for management of the hotel. He clarified they liked the intention of the owner with regard
to the property and had no problem with Mr. Yurashak, but with the owner of the building itself. He stated
he had attempted to have meetings with the owner and was stood up so contacted the owner’s attorney. He
stated the existing ramp had been co-used and there had never been an official easement agreement; there
was a total change in use of the 307-311 East Main Street building with a lot more liability issues that
needed to be discussed. He stated the majority of the people leaving Bar IX come out by using the ramp
and the Bozeman Hotel could be held liable. He stated an agreement had not been reached and a tougher
stance had to be taken. He stated the Bozeman Hotel had always done the maintenance of the ramp and
there were a lot of factors involved in the decision. He stated he was concerned as a citizen in that it
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would be a dangerous situation to allow the outdoor seating expansion as the alleyway was very busy and
there was no lighting. He stated they were trying to get some cooperation from the owner but they had
troubles such as dumping of snow on their roof, use of their dumpsters and recycling bins, and use of their
parking spaces. He clarified that the Bozeman Hotel did not know what they would do and had been
promised an agreement by the property owner that had not been drafted.
Mack Butler, 3443 Kent Spur Road, stated they had not received notice of the proposal. He stated he had
75 offices in the Bozeman Hotel (roughly 40,000 square feet of space) and he had come in one morning to
smoke in all of his offices. He stated he had attempted to get the City involved regarding the BBQ smoke
and had not been assisted. He stated the second thing he had noticed was the installation of the concrete
patio. He stated he was in opposition of the proposal and noted the owner had not attended tonight’s
meeting. He stated the Bozeman Hotel owned two feet of the ramp and the site boundaries should have
been checked. He stated he was angry about the process and all that had happened; the City Manager had
determined a way to remove the barbecue smoker that had been installed in the rear yard. He stated the
Bozeman Hotel was not the problem and suggested the only decision the BOA could make was denial. He
stated he hoped if an agreement was not reached he would strongly discourage the installation of a four
foot ramp in that location.
Seeing no further public comment forthcoming, the public comment period was closed.
Ms. Jamison asked for clarification of noticing the property owner. Planner Bristor responded the owner
had to be involved in the application process but did not have to attend meetings and had delegated an
applicant and representative.
Mr. Curtis asked if references to noise had been included in previous CUP approvals as it was not included
in the Staff Report. Mr. Mehl responded condition of approval #1 addressed the noise issues. Mr. Curtis
stated the language to revoke the CUP approval regarding noise complaints was not included. Mr. Mehl
responded the condition #1 addressed all complaints and the CUP revocation was included in the Code
Provisions. Vice Chairperson Sypinski applauded the applicant on his meeting with the neighbor
regarding the noise complaints and a method of alleviating their concerns. Mr. Curtis stated both the
representative and owner were present during the initial CUP request where there had been extensive
discussion regarding the installation of additional outdoor seating and that it would need to be reviewed by
the Board.
Vice Chairperson Sypinski clarified the review criteria as set forth in the UDO. He stated he was
supportive of the redevelopment of the downtown area but was concerned with the actual violation. He
stated he was also concerned that the underlying zoning requirements to ensure the protection of public
health, safety, and human welfare had not been met due to the lack of control of the patronage, poor
lighting, and parking locations. He stated the compatibility of uses within the totality of downtown needed
to be taken into consideration. He stated he would have difficulty approving the application as presented.
Mr. Curtis stated he agreed with Vice Chairperson Sypinski that the human welfare was not being
provided for as the egress was not up to code.
Mr. Robertson stated he was concerned with the establishment’s approach to the clean air act and the affect
it has had on the abutting properties.
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Ms. Jamison stated her primary concern was the egress and added she thought there needed to be
cooperation between the owners to provide that egress.
Mr. Lee stated he thought it was a shame to have a beautiful area that was not being utilized. He stated he
thought there was some way to work it out so the area was a benefit to the whole block; some items of
concern would be worked out before the project was completed. He stated the owners would need to sit
down and figure out who could use the egress without the BOA denying the proposal. He suggested no
smoking could be instituted on the site as the owner could not force employees to walk through a smoky
environment.
Mr. Robertson asked what the applicant could do as recourse if the project was denied. Attorney Cooper
responded a similar application could be submitted with some of the issues addressed prior to the hearing.
He stated the BOA had a number of options; the CUP, COA, and DEV were separate pieces of the
submittal. Chairperson Pomnichowski clarified that all current activities would remain. Mr. Robertson
clarified that the applicant could return to the BOA with an amended, more detailed submittal.
Vice Chairperson Sypinski stated he was not comfortable approving the application with unresolved
issues.
Mr. Lee suggested the application could be opened and continued to the next meeting of the BOA to allow
the applicant time to resolve some of the issues such as egress.
Mr. Curtis agreed with Vice Chairperson Sypinski that the BOA could not approve the application with
“what if” scenarios.
Chairperson Pomnichowski stated she agreed with most BOA member statements. She stated if the
applicant could meet the conditions of approval, the application could be granted. She stated she did not
feel the application met the first three review criteria for CUP.
MOTION: Vice Chairperson Sypinski moved, Mr. Curtis seconded, to approve Bar IX Creek Patio
CUP/COA/DEV #Z-10200 with Staff conditions of approval. The motion failed 0-6. Those voting
aye being none; those voting nay being Ms. Jamison, Mr. Curtis, Mr. Lee, Chairperson
Pomnichowski, Mr. Robertson, and Vice Chairperson Sypinski.
3. Baker Addition COA/DEV #Z-10249 (Kramer)
619 East Mendenhall Street
* A Certificate of Appropriateness with a Deviation application to allow the
construction of a sunroom/guestroom addition with an encroachment of 14 feet
into the required 20 foot front yard setback.
Assistant Planner Courtney Kramer presented the Staff Report noting the location of the proposal. She
stated the proposal was for an addition off of the front façade of the existing building and noted the
proposal did not exceed the cap of a 20% increase in footprint. She stated the residential use had been
allowed as legal nonconforming within the M-1 zoning designation. She noted the existing pergola would
nearly be enclosed and would have a shed roof design. She stated Staff found the proposal to mimic a
front porch addition. She stated Staff was supportive of the proposal as submitted and added there was
very little historic integrity due to extensive renovations to the property. She stated she was confident in
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Board of Adjustment Minutes – November 9, 2010
BOARD OF ADJUSTMENT
TUESDAY, NOVEMBER 9, 2010
MINUTES
ITEM 1. CALL TO ORDER AND ATTENDANCE
Chairperson Pomnichowski called the meeting of the Board of Adjustment to order at 6:01 p.m.
in the City Commission Meeting Room, City Hall, 121 North Rouse Avenue, Bozeman,
Montana and directed the secretary to record the attendance.
Members Present Staff Present
Ed Sypinski, Vice Chairperson Tim McHarg, Planning Director
Dan Curtis Allyson Bristor, Associate Planner
JP Pomnichowski, Chairperson Keri Thorpe, Assistant Planner
Pat Jamison Tara Hastie, Recording Secretary
Cole Robertson
Chris Mehl, Commission Liaison
Members Absent Visitors Present
Caroline Adams Orlando Piva
Richard Lee Eric Noyes
ITEM 2. MINUTES OF OCTOBER 12, 2010
MOTION: Mr. Curtis moved, Ms. Jamison seconded, to approve the minutes of October 12,
2010 as presented. The motion carried 4-0. Those voting aye being Ms. Jamison, Mr. Curtis,
Chairperson Pomnichowski, and Vice Chairperson Sypinski; those voting nay being none.
ITEM 3. PUBLIC COMMENT – (15 – 20 minutes)
{Limited to any public matter, within the jurisdiction of the Board Of Adjustment, not on
this agenda. Three-minute time limit per speaker.}
Seeing no general public comment forthcoming, the public comment period was closed.
ITEM 4. CONSENT ITEM
1. BAR IX Creek Patio CUP/COA/DEV #Z-10100 Findings of Fact (Bristor)
307-311 East Main Street
* Approval of Findings of Fact for a denial of the Conditional Use Permit with a
Certificate of Appropriateness Application with a Deviation to allow the after-
the-fact approval of the installation of a concrete patio/seating area within the
required Bozeman Creek watercourse setback and to allow the expansion of the
alcohol serving area (for on-premise consumption) to include the patio area.
Vice Chairperson Sypinski requested the item be moved to project review for discussion.
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Mr. Curtis stated the upon review of the Findings Of Fact he had noticed there was a lack of
findings, as stated in the record, including impervious surface and health codes regarding
smoking on the property.
Vice Chairperson Sypinski stated the draft Findings Of Fact were not even as complete as the
minutes of the meeting and suggested the specifics should have been clarified.
Mr. Robertson joined the BOA.
Ms. Jamison asked why the Findings Of Fact had come before the Board in the current format.
Chairperson Pomnichowski responded she had the same question as she had always thought the
Board had been careful to make their findings official record at each meeting and asked Attorney
Cooper to explain. Attorney Cooper responded the Board had done well at record findings at
past meeting and stated the Findings Of Fact would serve the Board in the event that any action
was taken as a result of a meeting. He stated it would be ideal to have written findings
immediately following a Board decision though it would not always be possible; it would be an
important part of the official record.
Vice Chairperson Sypinski asked if findings should be issued for all decisions both affirmative
and negative. Attorney Cooper responded he would suggest findings should be issued for all
decisions.
Mr. Mehl asked if the Board had been notified in advance of the item appearing on the agenda.
Director McHarg responded the need for findings had been identified at the last meeting, but it
may not have been indicated as clearly. Mr. Mehl stated he thought the minutes were excellent,
but he thought it would be good to have findings regardless of the decision; he stated he
understood that how the item was introduced to the Board was not the best way.
Chairperson Pomnichowski responded there was no statute indicating a separate findings
document and suggested if a new step was to be introduced it should be included in the language
of the ordinance. She stated she was told by a member of the State Supreme Court that the best
record of a meeting was the recording of the meeting with the minutes being second as official
record. She stated the proposed Findings Of Fact were not as extensive as the minutes of the
meeting and suggested many of the items discussed by the Board had not been included in the
draft document. She suggested an ordinance be included to provide for Findings Of Fact from
the BOA. She suggested the meeting minutes stand as the Findings Of Fact for the proposal.
Vice Chairperson Sypinski concurred with Chairperson Pomnichowski and added he did not
think the Findings Of Fact draft was as detailed as it should be and had not incorporated the
Board’s comments.
Attorney Cooper suggested the Board make a motion in the affirmative, and if the motion failed,
the minutes would serve as the findings for the decision.
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MOTION: Mr. Curtis moved, Ms. Jamison seconded, to deny the draft Findings Of Fact.
Chairperson Pomnichowski suggested the motion be in the affirmative.
The motion was withdrawn.
MOTION: Mr. Curtis moved, Ms. Jamison seconded, to approve BAR IX Creek Patio
CUP/COA/DEV #Z-10100 Findings of Fact. The motion failed 0-4. Those voting aye being none.
Those voting nay being Ms. Jamison, Mr. Curtis, Mr. Robertson, Chairperson Pomnichowski,
and Vice Chairperson Sypinski.
ITEM 5. PROJECT REVIEW
1. Altemus/Salter CUP/DEV #Z-10241 (Bristor)
15-17 South 5th Avenue
* A Conditional Use Permit with a Deviation Application to allow the lawful
establishment of office use on the property with less than the required number of
parking spaces for the structure.
Opened and continued to 12/14/10 to allow the applicant to submit additional materials and more Staff
review time.
Chairperson Pomnichowski opened the item for public comment. Seeing none forthcoming, Chairperson
Pomnichowski opened and continued the item to the next meeting of the BOA.
2. American Indian Institute SP/COA/DEV #Z-10273 (Thorpe)
502 West Mendenhall Street
* A Site Plan Certificate of Appropriateness with a Deviation Application to allow
the re-use of an existing residential structure zoned B-2 (Community Business
District) for non-profit organization offices with a request for deviations to
corner side and side yard setbacks.
Assistant Planner Keri Thorpe presented the Staff Report noting the location of the property and
its zoning designation. She stated the property had been underutilized in recent years due to
accessibility requirements and other issues. She stated the current owner was proposing to use the
site as office space and archival storage. She stated the storage portion of the proposal reduced
the parking requirements and make the proposal workable on the site. She stated the applicant
had requested two deviations to make the project work; to provide the necessary backing distance
they would need to encroach into required setbacks. She presented the Board with the historic
inventory documentation for the property and noted the applicant did not intend to make
significant changes to the property but would be improving the structure; the site improvements
would be the majority of the work proposed to be completed. She stated the project had been
publicly noticed though no public comment had been received. She stated Staff was supportive of
the proposal with Staff conditions of approval and the requested deviations.
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