HomeMy WebLinkAboutWork Session on 2011 Final Codification Proof.pdfCodification Work Session: August 22, 2011
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Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Greg Sullivan, City Attorney
Stacy Ulmen, City Clerk
SUBJECT: Work Session on Codification of Bozeman Municipal Code
MEETING DATE: August 22, 2011
AGENDA ITEM TYPE: Work Session (set for 5:00 pm)
RECOMMENDATION: Discuss the final codification proof and set September 19, 2011 as the
date for first reading of an ordinance codifying the Bozeman Municipal Code as shown on the
2011 Final Proof.
BACKGROUND:
It is important to first recognize the dozens of City employees who spent numerous hours
reviewing the various drafts, providing written comments, and answering questions from
the City Attorney and our consultant’s editors. We very much want to recognize and
appreciate their efforts and contributions.
Introduction:
Over the past two and half years we have been working to “codify” the Bozeman Municipal
Code (BMC). During this work session you will have the opportunity to review the final
codification proof and discuss with the staff the comprehensive process undertaken to date and
the scope of the changes to the code. Unless you have any significant changes you would like to
see in the structure or organization of the new BMC you will see the ordinance adopting this
codification on September 19, 20111.
After both readings of the codifying ordinance and after the 30-day effective period, the BMC
will be available electronically on the City’s website through an ongoing contract with Municipal
Code Corporation (“MuniCode”), the City’s codification consultant.
1 An ordinance codifying the BMC is required pursuant to Bozeman City Charter, Sect. 2.11(1).
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For a preview of what the BMC will look like when published online please visit the City of
Billings website and click on “City Code” or go to:
http://library.municode.com/index.aspx?clientID=10441&stateID=26&statename=Montana&Cu
stomBanner=10441.jpg&ImageClass=L&cl=10441. Providing the BMC in searchable format
through MuniCode’s website will not only assist the city staff in its day-to-day operations but,
more importantly, will make the BMC readily accessible by the citizens of Bozeman. In addition,
the City will have a limited number of the new BMC printed for distribution to locations in areas
such as City Hall, the Library, the Stiff Building, etc.
We will discuss these methods of publication in greater detail during the work session.
Attachments for the work session:
Attached to this memo you will find numerous documents related to this process, including a
compact disc that contains three rather large documents in portable document format (pdf):
1. The 2009 Codification Draft;
2. The 2011 Final Proof; and
3. A sample of a final published chapter (Chapter 38, the Unified Development Code
(UDC) (formerly known as Title 18, the “UDO”).
The staff also obtained from MuniCode two additional proofs during the process: one in
December of 2010 and another in May, 2010. We did not provide you with copies of these
proofs for the work session as the changes included in these iterations are also provided in the
2011 Final Proof. If you are interested in these intermediate proofs please let us know and we’ll
provide them electronically.
Our focus on discussion for the work session will begin with the 2009 Draft and quickly move to
the 2011 Final Proof.
In addition to the documents on the attached compact disc you will also find attached to this
memorandum three additional documents that detail the extent of staff review and comment.
These include:
1. Staff comments on the 2009 draft;
2. Staff comments on the December 2010 draft; and
3. Staff comments on the May 2011 draft.
Rather than list in this memorandum the changes to the code, we provide the above comment
sheets. During the work session we can go through these comments in as great a detail as
necessary.
Our process:
In general, a codification is a process to include all ordinances adopted since the last codification
directly into the text of the official code. A codification process also provides an opportunity to
review the code for compliance with changes in state and federal law, changes in administrative
processes, and to make corrections in style.
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The process we undertook in this codification appears to be greater in scope than what the City
has previously undertaken. To understand the extent of staff’s review of the BMC it is important
to first understand the steps we undertook.
On March 23, 2009, the City Commission authorized the City Manager to sign an agreement
with Municipal Code Corporation for a codification of the BMC. At that time the City agreed to
pay $16,1402. The City Clerk and City Manager recognized the importance of doing so at this
time because a codification of adopted ordinances had not taken place since November of 2001.3
After the 2001 codification, the most recent iteration of the BMC appears to have been an effort
in 2005 to codify ordinances adopted since 2001.4 Unfortunately, neither the 2005 or 2001
versions of the BMC undertook a comprehensive review of the entire BMC. In fact, in 2009
when this most current codification process began, staff immediately recognized that not only
had ordinances adopted since 2005 not been included in a published version of the code but the
BMC had not been updated since adoption of the City Charter. Moreover, it became clear the
BMC had not been adjusted to changes in city administrative structure. Quite simply, we realized
the BMC needed a comprehensive and detailed review.
As such, the scope of this codification includes:
· Insertion of all ordinances adopted since 2001;
· Evaluation of the BMC for compliance with federal and state law and corresponding
edits;
· Conformance with the Bozeman City Charter;
· Adjustments related to changes in the City’s administrative structure;
· A reorganization to an alphabetical structure (see additional discussion below); and
· Deletion of provisions either addressed in state law or no longer applicable to city
business.
The first step in the codification process was to provide MuniCode with a copy of the previously
codified municipal code. At that time, the City Clerk provided MuniCode with access to all
adopted city ordinances. The result of MuniCode’s initial work was the attached 2009
Codification Draft. As you can see from that draft, the purposes were to insert all previously
adopted ordnances and to ask questions of the City regarding hundreds of code provisions. The
2009 Draft was not an edited version – it simply inserted the codified ordinances not previously
included. This draft formed the basis for all subsequent work by City staff.
During the year following receipt of the 2009 Draft, the City Attorney, City Clerk, and dozens of
City staff reviewed every footnote in the 2009 Draft, every section of the BMC, and provided
specific detailed comments and responses to MuniCode. These comments were sent to
MuniCode in June of 2010.
2 Please see the fiscal effects statement below for more details on the total cost of this project and ongoing maintenance fees to MuniCode. 3 During the time period between the 2011 codification and this process out of the over 250 ordinances adopted by the City approximately 125
ordinances needed to be codified. 4 MuniCode reviewed all ordinances back to the 2001 codification to ensure their inclusion in the BMC.
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During the review of the 2009 Draft the staff realized a two-step process to codification was
needed. The first phase would include the scope as identified above and the second phase would
include substantive amendments to the code. As such, during our review we identified
amendments to the BMC that would be brought forth in a “Phase II” – a comprehensive overhaul
of what will be each chapter of the BMC.
The responses to the footnotes and other city comments were addressed by MuniCode in a
second draft provided at the end of 2010. Again, the city staff reviewed this draft during the early
part of this year and sent comments back to MuniCode at the end of March, 2011.
At the end of April, 2011, MuniCode provided a third draft of the BMC for City review. We then
returned a set of comments on this draft to MCC at the end of June, 2011.
Finally, on July 28, 2011 we received the 2011 Final Proof. After addressing a few minor issues,
it is this version we bring before you for consideration. In total, MuniCode provided four
separate drafts for city review.
Reorganization of the Code:
As you will see from comparing the Table of Content in the 2011 Final Proof with the current
BMC structure (please refer to the 2009 Draft), the 2011 Final Proof adopts a vastly different
structure. We decided to request MuniCode adjust the organization of the BMC to one based on
an alphabetical structure rather than the traditional title-chapter structure for several reasons.
First, the BMC had not been codified for a decade and had changed significantly in the interim.
As such, we felt the risk of confusion to the public, except for the Title 18 (the UDO) was
minimal. Second, and most importantly, based in part on input from MuniCode, we felt that
because the new BMC would be a web-based application in a searchable format the public’s
accessibility would be enhanced by having the BMC structured alphabetically. In doing so, we
increased the number of levels in the highest level of the outline significantly which we believe
will allow the public better access to the code. For example, where before the BMC had 18
“titles” the proposed structure has 42 “chapters.”
We recognize the difficulty this new structure may pose for those already familiar with the BMC,
especially those who interact with the UDO5. To assist with this transition MuniCode will
provide a table that provides cross referencing from a former code section to the new code
section.
Examples of the scope of changes:
As you review the 2011 Final Proof we provide the following as examples of the changes you
will find:
· The final ordinance to be included in the 2011 Final Proof is ordinance 1807
(Commission Rules of Procedure) (included in as chapter 2, article 2, beginning on pg.
5 The popular name for current Title 18 is the Unified Development Ordinances, the “UDO.” With the transition to new Chapter 38, we will
begin referring to the combined provisions related to subdivision and zoning as the “Unified Development Code,” or the “UDC” because an
ordinance is a legislative enactment, similar to a bill, as a code is a “complete system of positive law carefully arranged and officially
promulgated.” Black’s Law Dictionary (7th Ed.)
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29) - ordinances adopted after Ordinance 1807 (effective July 6, 2011) including recent
amendments to the UDO, are not included.6 These will be included in the first quarterly
supplement from MuniCode. During the work session we’ll demonstrate how adopted but
not yet codified ordinances will be placed on MuniCode’s website.
· In addition to the overall restructuring of the BMC many sections have been reorganized.
For example, all provisions related to alcohol licensing are now located in chapter 4
where previously those provisions were located in title 5 (business licensing) and title 9
(alcohol waivers and permitting).
· Numerous changes have been included to ensure the code is gender neutral.
· Many outdated provision are proposed to be deleted entirely. For example:
o The City no longer has a City-county Planning Board (pg. 65), a police reserve
fund (pg. 104), and the City has paid off the 1982 bonds required to finance
improvements to the City’s water system (pg. 874).
o Provisions adopted in the wake of CI75 via Ordinance 1482 are being deleted due
to the Supreme Court’s decision in Marshall v. State ex rel. Cooney (1999)
holding CI75 unconstitutional.
o Because of the 2009 Montana Legislature’s adoption of the ban on red light
cameras, we propose to delete the provisions in the BMC related to red light
cameras (see pg. 446).
o The City currently has a “sign code” that is located in title 15 completely
independent of the UDO sign code provisions. The title 15 provisions are shown
to be repealed (see pg. 207).
o Chapter 8.20 of the current BMC contains provisions authorizing the “sanitary
inspector of the city and the county” to inspect “all establishments within the city”
for the sale of meat products. The city has not done this for decades as the City-
county Health Department does inspections pursuant to state law. Thus the
provisions will be deleted from the code. The same is true for the provision relate
to milk (pg. 278) and the ban on dropping “handbills, circulars, and cards…” from
airplanes (pg. 185).
· Other provisions proposed for amendment include exceptions required by case law. For
example, the City’s current curfew for minors under the age of 16 (chapter 9.80) lacks a
list of exceptions required by federal case law. With the 2011 Final Proof, new section
24.08.160 incorporates specific exceptions to the City’s 10:00 pm curfew. A similar issue
exists with exceptions for service animals from prohibitions on animals in park facilities
(see new section 26.02.030 at pg. 341).
· Many changes are merely ministerial in nature and reflect changes in administrative
structure. For example, during the past decade the City combined the fire and police
departments into a “Department of Public Safety” with a fire and police division. Many
code sections were amended at that time to reflect the authority of a “Director of Public
Safety.” The current City Manager changed that structure back: now, the city has a Police
Department and a Fire Department – each lead by a Chief. The new BMC reflects this
most recent change. For example, see pg. 407 in the 2011 Final Proof.
6 Ordinance 1802 (adopting the Residential Emphasis Mixed Use zoning district is not included in the 2011 Final Proof but will be included in
the first supplement later this fall.
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Long-Term Management of the Bozeman Municipal Code:
As stated above, the contract with MuniCode will allow us to ensure the codification process
continues on a recurring basis. To implement a continual codification process, the Clerk’s office
will forward all adopted ordinances to MuniCode for placement on their website. These
ordinances will also be made available as supplements to the written code. In addition, the staff
will immediately begin “phase II” a substantive overhaul of each chapter based on current city
services, best practices, etc.
FISCAL EFFECTS: Currently, the City has paid MuniCode a total of $13,312 for the re-
codification project. On March 23, 2009, the City Commission authorized the City Manager to
sign an agreement for Codification Services with Municipal Code at a total base cost of $16,140.
The City has included more Ordinances than what was originally anticipated in order to keep as
up-to-date as possible during the review process so the total cost has increased $5,940. As such,
the estimated amount still due to MuniCode is still $9,580. This cost has been budgeted for in the
Clerk’s Office Fiscal Year 2011-2012 budget.
It is estimated that the annual costs to maintain the website and have MuniCode publish
supplements will be around $4,500-5,500 (based on the size of the current code); however, this
amount will be directly impacted by the number of ordinances passed in a given year.
ALTERNATIVES: As suggested by the City Commission.
ATTACHMENTS:
· A compact disc that contains three rather large documents in portable document format
(pdf):
o The 2009 Codification Draft;
o The 2011 Final Proof; and
o A sample of a final published chapter (Chapter 38, the Unified Development
Code (UDC) (formerly known as Title 18, the “UDO”).
· Written documents containing the following
o Staff comments on the 2009 draft;
o Staff comments on the December 2010 draft; and
o Staff comments on the May 2011 draft.
Report compiled on: August 12, 2011
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