Loading...
The URL can be used to link to this page
Your browser does not support the video tag.
Home
My WebLink
About
2011 Final Proof
BOZEMAN MUNICIPAL CODE Published by Order of the City Commission Date of Publication: 2011PROOFS PROOFS OFFICIALS of the CITY OF BOZEMAN, MONTANA AT THE TIME OF THIS RECODIFICATION Jeffrey K. Krauss Mayor Sean Becker, Deputy Mayor Chris Mehl Cyndy Andrus Carson Taylor City Commission Chris Kukulski City Manager Greg Sullivan City Attorney Stacy Ulmen City Clerk iiiPROOFS PROOFS PREFACE This Code constitutes a recodification of the general and permanent ordinances of the City of Bozeman, Montana. Source materials used in the preparation of the Code were the 1982 Code, as supplemented, and ordinances subsequently adopted by the City Commission. The source of each section is included in the history note appearing in parentheses at the end thereof. The absence of such a note indicates that the section is new and was adopted for the first time with the adoption of the Code. By use of the comparative tables appearing in the back of this Code, the reader can locate any section of the 1982 Code, as supplemented, and any ordinance included herein. The chapters of the Code have been conveniently arranged in alphabetical order, and the various sections within each chapter have been catchlined to facilitate usage. Notes which refer to relevant state law have been included. A table listing the state law citations and setting forth their location within the Code is included at the back of this Code. Page Numbering System The page numbering system used in this Code is a prefix system. The letters to the left of the colon are an abbreviation which represents a certain portion of the volume. The number to the right of the colon represents the number of the page in that portion. In the case of a chapter of the Code, the number to the left of the colon indicates the number of the chapter. In the case of an appendix to the Code, the letter immediately to the left of the colon indicates the letter of the appendix. The following are typical parts of codes of ordinances, which may or may not appear in this Code at this time, and their corresponding prefixes: CHARTER CHT:1 CHARTER COMPARATIVE TABLE CHTCT:1 CODE CD1:1 CODE COMPARATIVE TABLES CCT:1 STATE LAW REFERENCE TABLE SLT:1 CHARTER INDEX CHTi:1 CODE INDEX CDi:1 Indexes The indexes have been prepared with the greatest of care. Each particular item has been placed under several headings, some of which are couched in lay viiPROOFS phraseology, others in legal terminology, and still others in language generally used by local government officials and employees. There are numerous cross references within the indexes themselves which stand as guideposts to direct the user to the particular item in which the user is interested. Looseleaf Supplements A special feature of this publication is the looseleaf system of binding and supplemental servicing of the publication. With this system, the publication will be kept up to date. Subsequent amendatory legislation will be properly edited, and the affected page or pages will be reprinted. These new pages will be distributed to holders of copies of the publication, with instructions for the manner of inserting the new pages and deleting the obsolete pages. Keeping this publication up to date at all times will depend largely upon the holder of the publication.As revised pages are received, it will then become the responsibility of the holder to have the amendments inserted according to the attached instructions. It is strongly recommended by the publisher that all such amendments be inserted immediately upon receipt to avoid misplacing them and, in addition, that all deleted pages be saved and filed for historical reference purposes. Acknowledgments This publication was under the direct supervision of Bill Carroll, Senior Code Attorney, and Beth Tattershall, Editor, of the Municipal Code Corpora- tion, Tallahassee, Florida. Credit is gratefully given to the other members of the publisher's staff for their sincere interest and able assistance throughout the project. The publisher is most grateful to Mr. Greg Sullivan, City Attorney, and Ms. Stacy Ulmen, City Clerk, for their cooperation and assistance during the progress of the work on this publication. It is hoped that their efforts and those of the publisher have resulted in a Code of Ordinances which will make the active law of the city readily accessible to all citizens and which will be a valuable tool in the day-to-day administration of the city's affairs. Copyright All editorial enhancements of this Code are copyrighted by Municipal Code Corporation and the City of Bozeman, Montana. Editorial enhancements include, but are not limited to: organization; table of contents; section catchlines; prechapter section analyses; editor's notes; state law references; numbering system; code comparative table; state law reference table; and indexes. Such material may not be used or reproduced for commercial purposes without the express written consent of Municipal Code Corporation and the City of viiiPROOFS Bozeman, Montana. © Copyrighted material. Municipal Code Corporation and the City of Bozeman, Montana. 2011. ixPROOFS PROOFS Page 1 of 977 TABLE OF CONTENTS PART I................................................................................................................. 8 CHARTER* ........................................................................................................... 8 PREAMBLE...................................................................................................... 8 ARTICLE I. POWERS OF THE CITY* .................................................................... 8 ARTICLE II. CITY COMMISSION*........................................................................ 8 ARTICLE III. CITY MANAGER ............................................................................11 ARTICLE IV. DEPARTMENTS, OFFICES AND AGENCIES* .......................................13 ARTICLE V. FINANCIAL MANAGEMENT* .............................................................15 ARTICLE VI. ELECTIONS* ................................................................................17 ARTICLE VII. GENERAL PROVISIONS.................................................................17 ARTICLE VIII. CHARTER AMENDMENT*..............................................................18 ARTICLE IX. TRANSITION AND SEVERABILITY ....................................................19 PART II...............................................................................................................20 CODE OF ORDINANCES.........................................................................................20 Chapter 1. GENERAL PROVISIONS .......................................................................20 Chapter 2. ADMINISTRATION* ............................................................................29 ARTICLE 1. IN GENERAL ..................................................................................29 ARTICLE 2. CITY COMMISSION* .......................................................................29 ARTICLE 3. OFFICERS AND EMPLOYEES* ...........................................................39 DIVISION 1. GENERALLY...............................................................................39 DIVISION 2. CITY MANAGER .........................................................................39 DIVISION 3. CITY CLERK*.............................................................................40 DIVISION 4. CODE OF ETHICS*.....................................................................41 DIVISION 5. IMMUNIZATION, DEFENSE AND INDEMNIFICATION*......................56 ARTICLE 4. DEPARTMENTS*.............................................................................57 DIVISION 1. GENERALLY...............................................................................57 DIVISION 2. DEPARTMENT OF FINANCE* ........................................................58 DIVISION 3. DEPARTMENT OF FIRE................................................................59 DIVISION 4. DEPARTMENT OF HUMAN RESOURCES (RESERVED)........................60 DIVISION 5. DEPARTMENT OF INFORMATION TECHNOLOGY (RESERVED)............60 DIVISION 6. DEPARTMENT OF LAW*...............................................................60 DIVISION 7. DEPARTMENT OF PARKS AND RECREATION (RESERVED).................61 DIVISION 8. DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT (RESERVED)................................................................................................61 DIVISION 9. DEPARTMENT OF POLICEPUBLIC SAFETY.......................................61 DIVISION 10. DEPARTMENT OF PUBLIC SERVICES ...........................................61 ARTICLE 5. BOARDS AND COMMISSIONS...........................................................62 DIVISION 1. GENERALLY...............................................................................62 DIVISION 2. RECREATION AND PARKS ADVISORY BOARD.................................62 DIVISION 3. LIBRARY BOARD OF TRUSTEES*..................................................64 DIVISION 4. CITY-COUNTY PLANNING BOARD .................................................65 DIVISION 4. CITY PLANNING BOARD..............................................................66 DIVISION 5. CEMETERY BOARD* ...................................................................66 DIVISION 6. HISTORIC PRESERVATION ADVISORY BOARD* ..............................67 DIVISION 7. NEIGHBORHOOD ASSOCIATIONS.................................................71 DIVISION 8. BEAUTIFICATION ADVISORY BOARD ............................................80 DIVISION 9. ECONOMIC DEVELOPMENT COUNCIL ............................................81 DIVISION 10. TAX INCREMENT FINANCING INDUSTRIAL DISTRICT BOARD*........82 DIVISION 11. BUSINESS IMPROVEMENT DISTRICTS BOARDS OF TRUSTEES* ......84 PROOFS Page 2 of 977 DIVISION 12. TREE ADVISORY BOARD ...........................................................88 DIVISION 13. SENIOR CITIZENS' ADVISORY BOARD.........................................90 DIVISION 14. BICYCLE ADVISORY BOARD.......................................................91 ARTICLE 6. FINANCE* .....................................................................................92 DIVISION 1. GENERALLY...............................................................................93 DIVISION 2. BUDGET ...................................................................................93 DIVISION 3. TAX ABATEMENT........................................................................94 DIVISION 4. COLLECTION OF TAXES ..............................................................98 DIVISION 5. ACQUISITION AND TRANSFER OF CITY PROPERTY........................102 DIVISION . POLICE RESERVE FUND ..............................................................104 DIVISION 6. SPECIAL IMPROVEMENT DISTRICT REVOLVING FUND* .................105 DIVISION 7. TAX INCREMENT FINANCING INDUSTRIAL DISTRICT PROGRAM*....107 DIVISION 8. BUSINESS IMPROVEMENT DISTRICT PROGRAMS*........................110 DIVISION 9. IMPACT FEES*.........................................................................113 DIVISION 10. LIVING WAGE........................................................................141 ARTICLE 7. EMINENT DOMAIN........................................................................144 Chapter 3. RESERVED......................................................................................146 Chapter 4. ALCOHOLIC BEVERAGES* .................................................................147 ARTICLE 1. IN GENERAL ................................................................................147 ARTICLE 2. LICENSING AND PERMITTING SALEBEER .........................................147 ARTICLE 3. LIQUOR--RETAIL SALE..................................................................150 ARTICLE 4. ALCOHOL POLICY.........................................................................153 Chapter 5. RESERVED......................................................................................160 Chapter 6. AMUSEMENTS AND ENTERTAINMENTS................................................161 ARTICLE 1. IN GENERAL ................................................................................161 ARTICLE 2. PUBLIC CONCERTS.......................................................................161 Chapter 7. RESERVED......................................................................................162 Chapter 8. ANIMALS* ......................................................................................163 ARTICLE 1. IN GENERAL ................................................................................163 ARTICLE 2. ANIMAL CONTROL* ......................................................................163 ARTICLE 3. CRUELTY TO ANIMALS*.................................................................181 Chapter 9. RESERVED......................................................................................184 Chapter. AVIATION*........................................................................................185 Chapter 10. BUILDINGS AND BUILDING REGULATIONS*.......................................186 ARTICLE 1. IN GENERAL ................................................................................186 ARTICLE 2. TECHNICAL CODES.......................................................................186 DIVISION 1. GENERALLY.............................................................................186 DIVISION 2. ELECTRICAL CODE...................................................................194 ARTICLE 3. BUILDING MOVING CODE..............................................................200 ARTICLE 4. DEMOLITION CODE ......................................................................204 ARTICLE 5. ADOPTED UNIFORM SAFETY CODE INSPECTIONS FOR BUSINESSES....214 ARTICLE 6. EXCAVATIONS .............................................................................215 ARTICLE 7. BUILDING NUMBERS ....................................................................216 ARTICLE 8. WORKFORCE HOUSING.................................................................218 Chapter 11. RESERVED ....................................................................................230 Chapter 12. BUSINESS LICENSING* ..................................................................231 ARTICLE 1. IN GENERAL ................................................................................231 ARTICLE 2. ADMINISTRATION AND ENFORCEMENT ...........................................233 ARTICLE 3. LICENSE FEE SCHEDULE ...............................................................239 Chapter 13. RESERVED ....................................................................................241 PROOFS Page 3 of 977 Chapter 14. CEMETERIES*................................................................................242 Chapter 15. RESERVED ....................................................................................248 Chapter 16. ENVIRONMENT AND HEALTH*..........................................................249 ARTICLE 1. IN GENERAL ................................................................................249 ARTICLE 2. NUISANCES*...............................................................................249 ARTICLE 3. ABANDONED OR JUNKED VEHICLES*..............................................256 ARTICLE 4. WEED ABATEMENT* .....................................................................257 ARTICLE 5. TREES AND OTHER VEGETATION....................................................258 DIVISION 1. GENERALLY.............................................................................258 DIVISION 2. TREE MAINTENANCE DISTRICT..................................................258 DIVISION 3. TREE REGULATIONS.................................................................259 ARTICLE 6. NOISE* ......................................................................................265 ARTICLE. SMOKING IN PLACES OF PUBLIC ASSEMBLY .......................................270 ARTICLE 7. SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT* ..................................................................................................................270 ARTICLE . BARBERSHOPS ..............................................................................275 ARTICLE . MEAT ...........................................................................................277 ARTICLE . MILK ............................................................................................278 ARTICLE 8. MEDICAL MARIJUANA*..................................................................278 DIVISION 1. GENERALLY.............................................................................279 DIVISION 2. SALES....................................................................................279 DIVISION 3. PUBLIC USE AND DISPLAY ........................................................281 ARTICLE 9. ALARM SYSTEMS..........................................................................283 Chapter 17. RESERVED ....................................................................................289 Chapter 18. FIRE PREVENTION AND PROTECTION*..............................................290 ARTICLE 1. IN GENERAL ................................................................................290 ARTICLE 2. FIRE CODE..................................................................................290 ARTICLE 3. OFFENSES CONCERNING FIREFIGHTING OPERATIONS ......................292 ARTICLE 4. OPEN BURNING ...........................................................................294 ARTICLE 5. FIREWORKS*...............................................................................297 ARTICLE 6. EMERGENCY MEDICAL SERVICES*..................................................302 Chapter 19. RESERVED ....................................................................................306 Chapter 20. MOBILE HOMES AND RECREATIONAL VEHICLES.................................307 ARTICLE 1. IN GENERAL ................................................................................307 ARTICLE 2. TRAILER CAMPS AND AUTO COURTS*.............................................307 Chapter 21. RESERVED ....................................................................................312 Chapter 22. MUNICIPAL COURT* .......................................................................313 Chapter 23. RESERVED ....................................................................................317 Chapter 24. OFFENSES, MISCELLANEOUS PROVISIONS* ......................................318 ARTICLE 1. IN GENERAL ................................................................................318 ARTICLE 2. MUNICIPAL INFRACTIONS* ...........................................................318 ARTICLE 3. OFFENSES AGAINST GOVERNMENTAL FUNCTIONS............................321 ARTICLE 4. OFFENSES AGAINST PROPERTY*....................................................323 ARTICLE 5. OFFENSES AGAINST PUBLIC PEACE ................................................325 ARTICLE 6. OFFENSES AGAINST PUBLIC MORALS .............................................329 ARTICLE 7. OFFENSES AGAINST PUBLIC SAFETY...............................................331 DIVISION 1. GENERALLY.............................................................................331 DIVISION 2. WEAPONS*.............................................................................331 ARTICLE 8. OFFENSES CONCERNING UNDERAGE PERSONS................................335 DIVISION 1. GENERALLY.............................................................................335 PROOFS Page 4 of 977 DIVISION 2. CURFEW.................................................................................335 Chapter 25. RESERVED ....................................................................................339 Chapter 26. PARKS AND RECREATION* ..............................................................340 ARTICLE 1. IN GENERAL ................................................................................340 ARTICLE 2. PARK REGULATIONS.....................................................................340 Chapter 27. RESERVED ....................................................................................350 Chapter 28. SALES ..........................................................................................351 ARTICLE 1. IN GENERAL ................................................................................351 ARTICLE 2. GOING-OUT-OF-BUSINESS SALES..................................................351 Chapter 29. RESERVED ....................................................................................355 Chapter 30. SECONDHAND GOODS....................................................................356 ARTICLE 1. IN GENERAL ................................................................................356 ARTICLE 2. PAWNBROKERS AND SECONDHAND DEALERS* ................................356 Chapter 31. RESERVED ....................................................................................359 Chapter 32. SOLID WASTE*..............................................................................360 ARTICLE 1. IN GENERAL ................................................................................360 ARTICLE 2. COLLECTION AND DISPOSAL .........................................................360 Chapter 33. RESERVED ....................................................................................365 Chapter 34. STREETS, SIDEWALKS AND OTHER PUBLIC PLACES............................366 ARTICLE 1. IN GENERAL ................................................................................366 ARTICLE 2. STREET MAINTENANCE .................................................................366 ARTICLE 3. STREET MAINTENANCE DISTRICT...................................................368 ARTICLE 4. SIDEWALK AND CURB CONSTRUCTION ...........................................369 ARTICLE 5. DOWNTOWN SIDEWALK ENCROACHMENT PERMIT PROGRAM .............373 ARTICLE 6. SNOW REMOVAL FROM SIDEWALKS ...............................................382 ARTICLE 7. ADVERTISEMENT SPACE ON MUNICIPAL PROPERTY ..........................385 ARTICLE 8. PARADES AND PUBLIC ASSEMBLIES ...............................................387 Chapter 35. RESERVED ....................................................................................400 Chapter 36. TRAFFIC AND VEHICLES*................................................................401 ARTICLE 1. IN GENERAL ................................................................................401 ARTICLE 2. ENFORCEMENT ............................................................................407 ARTICLE 3. RULES OF THE ROAD....................................................................409 DIVISION 1. GENERALLY.............................................................................409 DIVISION 2. TURNING MOVEMENTS .............................................................417 ARTICLE 4. STOPPING, STANDING AND PARKING .............................................419 DIVISION 1. GENERALLY.............................................................................419 DIVISION 2. HANDICAPPED PARKING FOR THE DISABLED...............................441 ARTICLE 5. TRAFFIC CONTROL DEVICES..........................................................443 Chapter 10.10.................................................................................................446 RED LIGHT CIVIL ENFORCEMENT AND AUTOMATED TRAFFIC SIGNAL CAMERA PROGRAM ....................................................................................................................446 ARTICLE 6. ONE-WAY STREETS AND ALLEYS ....................................................454 ARTICLE 7. SPEED LIMITS .............................................................................455 ARTICLE 8. STOP INTERSECTIONS..................................................................464 ARTICLE 9. TRUCK TRAFFIC ...........................................................................466 ARTICLE 10. BICYCLES..................................................................................468 ARTICLE 11. PEDESTRIANS............................................................................471 ARTICLE 12. TRAFFIC ACCIDENTS AND VIOLATIONS .........................................472 Chapter 37. RESERVED ....................................................................................475 Chapter 38. UNIFIED DEVELOPMENT CODE* .......................................................476 PROOFS Page 5 of 977 CHAPTER 18.02. GENERAL PROVISIONS .............................................................476 ARTICLE 1. IN GENERAL ................................................................................476 Chapter 18.04. subdivision and platting administrative procedures*.......................480 ARTICLE 2. SUBDIVISION AND PLATTING ADMINISTRATIVE PROCEDURES* .........480 Chapter 18.06. Review procedures for subdivisions*............................................482 ARTICLE 3. REVIEW PROCEDURES FOR SUBDIVISIONS*....................................482 CHAPTER 18.08. Land Subdivisions created by rent or lease ..................................494 ARTICLE 4. LAND SUBDIVISIONS CREATED BY RENT OR LEASE ..........................494 CHAPTER 18.10. SUBDIVISION EXEMPTIONS*.....................................................496 ARTICLE 5. SUBDIVISION EXEMPTIONS*.........................................................496 Chapter 18.12. subdivision certificates ...............................................................505 ARTICLE 6. SUBDIVISION CERTIFICATES*.......................................................505 CHAPTER 18.14. ZONING DISTRICTS AND ZONING MAP*.....................................512 ARTICLE 7. ZONING DISTRICTS AND ZONING MAP*..........................................512 CHAPTER 18.16. RESIDENTIAL ZONING DISTRICTS .............................................516 ARTICLE 8. RESIDENTIAL ZONING DISTRICTS..................................................516 ARTICLE 9. RESIDENTIAL EMPHASIS MIXED USE (RESERVED)............................526 CHAPTER 18.18. COMMERCIAL ZONING DISTRICTS .............................................526 ARTICLE 10. COMMERCIAL ZONING DISTRICTS................................................526 CHAPTER 18.19. URBAN MIXED-USE ZONING DISTRICT .......................................531 ARTICLE 11. URBAN MIXED-USE ZONING DISTRICT..........................................531 CHAPTER 18.20. INDUSTRIAL ZONING DISTRICTS...............................................538 ARTICLE 12. INDUSTRIAL ZONING DISTRICTS .................................................538 CHAPTER 18.22. PUBLIC LANDS AND INSTITUTIONS DISTRICT .............................543 ARTICLE 13. PUBLIC LANDS AND INSTITUTIONS DISTRICT................................543 CHAPTER 18.24. NORTHEAST HISTORIC MIXED USE DISTRICT..............................544 ARTICLE 14. NORTHEAST HISTORIC MIXED-USE DISTRICT ................................544 CHAPTER 18.26. REQUIREMENTS FOR CREATION OF A HISTORIC MIXED USE DISTRICT ....................................................................................................................547 ARTICLE 15. REQUIREMENTS FOR CREATION OF A HISTORIC MIXED-USE DISTRICT ..................................................................................................................547 CHAPTER 18.28. NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT..................548 ARTICLE 16. NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT ....................548 CHAPTER 18.30. BOZEMAN ENTRYWAY CORRIDOR OVERLAY DISTRICT ..................554 ARTICLE 17. BOZEMAN ENTRYWAY CORRIDOR OVERLAY DISTRICT.....................554 CHAPTER 18.32. CASINO OVERLAY DISTRICT......................................................558 ARTICLE 18. CASINO OVERLAY DISTRICT ........................................................558 CHAPTER 18.34. SITE PLAN REVIEW ..................................................................559 ARTICLE 19. SITE PLAN REVIEW* ...................................................................559 CHAPTER 18.36. PLANNED UNIT DEVELOPMENT ..................................................576 ARTICLE 20. PLANNED UNIT DEVELOPMENT .....................................................576 CHAPTER 18.38. GENERAL LAND USE STANDARDS AND REQUIREMENTS ................593 ARTICLE 21. GENERAL LAND USE STANDARDS AND REQUIREMENTS...................593 CHAPTER 18.40. STANDARDS FOR SPECIFIC USES ..............................................600 ARTICLE 22. STANDARDS FOR SPECIFIC USES .................................................600 Chapter 18.42. Development Standards .............................................................619 ARTICLE 23. DEVELOPMENT STANDARDS.........................................................619 CHAPTER 18.44. TRANSPORTATION FACILITIES AND ACCESS ...............................643 ARTICLE 24. TRANSPORTATION FACILITIES AND ACCESS..................................643 ARTICLE 25. PARKING...................................................................................657 PROOFS Page 6 of 977 Chapter 18.48. LANDSCAPING ..........................................................................671 ARTICLE 26. LANDSCAPING ...........................................................................671 Chapter 18.50. park and recreation requirements ................................................682 ARTICLE 27. PARK AND RECREATION REQUIREMENTS* .....................................682 Chapter 18.52. Signs .......................................................................................691 ARTICLE 28. SIGNS*.....................................................................................691 CHAPTER 18.54. TELECOMMUNICATIONS ...........................................................705 ARTICLE 29. TELECOMMUNICATIONS ..............................................................705 CHAPTER 18.56. BOZEMAN WETLAND REGULATIONS ...........................................715 ARTICLE 30. BOZEMAN WETLAND REGULATIONS..............................................715 CHAPTER 18.58. FLOODPLAIN REGULATIONS......................................................721 ARTICLE 31. FLOODPLAIN REGULATIONS*.......................................................721 CHAPTER 18.60. NONCONFORMING SITUATIONS.................................................738 ARTICLE 32. NONCONFORMING SITUATIONS ...................................................738 CHAPTER 18.62. DEVELOPMENT REVIEW COMMITTEE (DRC), DESIGN REVIEW BOARD (DRB), ADMINISTRATIVE DESIGN REVIEW STAFF (ADR), WETLANDS REVIEW BOARD (WRB), BOARD OF ADJUSTMENT (BOA)..............................................................741 ARTICLE 33. DEVELOPMENT REVIEW COMMITTEE (DRC), DESIGN REVIEW BOARD (DRB), ADMINISTRATIVE DESIGN REVIEW STAFF (ADR), WETLANDS REVIEW BOARD (WRB), BOARD OF ADJUSTMENT (BOA) ...........................................................741 Chapter 18.64. Administration, Fees and Penalties ...............................................746 ARTICLE 34. ADMINISTRATION, FEES AND PENALTIES ......................................746 Chapter ........................................................................................................753 ARTICLE 35. APPEALS, DEVIATIONS AND VARIANCE PROCEDURES .....................753 CHAPTER 18.68. TEXT AMENDMENTS*...............................................................760 ARTICLE 36. TEXT AMENDMENTS*..................................................................760 Chapter 18.70. ZONING MAP AMENDMENTS........................................................762 ARTICLE 37. ZONING MAP AMENDMENTS*.......................................................762 CHAPTER 18.72. SUPPLEMENTARY DOCUMENTS ..................................................764 ARTICLE 38. SUPPLEMENTARY DOCUMENTS.....................................................764 CHAPTER 18.74. IMPROVEMENTS AND GUARANTEES ...........................................767 ARTICLE 39. IMPROVEMENTS AND GUARANTEES ..............................................767 CHAPTER 18.76. NOTICING ..............................................................................781 ARTICLE 40. NOTICING .................................................................................781 Chapter ........................................................................................................784 ARTICLE 41. SUBMITTAL MATERIALS AND REQUIREMENTS ................................784 CHAPTER 18.80. DEFINITIONS ..........................................................................816 ARTICLE 42. DEFINITIONS.............................................................................816 APPENDIX A. ILLUSTRATIONS ........................................................................868 Chapter 39. RESERVED ....................................................................................871 Chapter 40. UTILITIES* ...................................................................................872 ARTICLE 1. IN GENERAL ................................................................................872 ARTICLE 2. WATER .......................................................................................872 DIVISION 1. GENERALLY.............................................................................872 DIVISION 2. PROTECTION OF WATER SUPPLY................................................872 Chapter 13.08.................................................................................................874 WATER SYSTEM ..............................................................................................874 Article I. Definitions ......................................................................................874 Article II. Findings and Authorization ...............................................................877 Article III. Series 1982 Bonds.........................................................................878 PROOFS Page 7 of 977 Article IV. Water System Fund ........................................................................883 Article V. Priorities and Additional Bonds ..........................................................886 Article VI. Covenants.....................................................................................888 Article VII. Amendments................................................................................892 Article VIII. Defeasance .................................................................................893 Article IX. Arbitrage and Certifications of Proceedings ........................................894 DIVISION 3. WATER SERVICE UTILITY OPERATIONS.......................................895 Subdivision I. In General..........................................................................895 Article I. General Provisions ...........................................................................895 Article II. Service Provided.............................................................................897 Subdivision II. Service Provided ................................................................897 Article 3. Application for Service .....................................................................898 Article IV. Service Conditions..........................................................................901 Subdivision III. Service Conditions.............................................................901 Subdivision IV. Water System Rules and Regulations....................................907 Chapter 13.20. IRRIGATION RESTRICTIONS .......................................................912 DIVISION 4. OUTDOOR WATER USE RESTRICTIONS .......................................912 ARTICLE 3. SEWERS*....................................................................................915 DIVISION 1. GENERALLY.............................................................................915 DIVISION 2. SEWER SERVICE RULES AND REGULATIONS................................915 Subdivision I. In General..........................................................................915 Article 1. General Provisions...........................................................................915 Subdivision II. General Regulations............................................................916 Article 2. General Regulations.........................................................................916 Subdivision III. Service Provided ...............................................................916 Article 3. Service Provided .............................................................................916 Article 4. Service Agreement ..........................................................................917 Article 5. Credit and Deposits .........................................................................918 Subdivision IV. Service Conditions.............................................................921 Article 6. Service Conditions...........................................................................921 DIVISION 3. WASTEWATER COLLECTION AND TREATMENTSEWAGE DISPOSAL SYSTEM....................................................................................................923 DIVISION 4. SEWER SERVICE OUTSIDE CITY.................................................942 DIVISION 5. SEWAGE DISPOSAL RATES AND CHARGES ..................................943 ARTICLE 4. STORMWATER .............................................................................947 DIVISION 1. GENERALLY.............................................................................947 DIVISION 2. DISCHARGE PROHIBITIONS ......................................................952 DIVISION 3. CONSTRUCTION ACTIVITY ........................................................955 DIVISION 4. REGULATIONS AND REQUIREMENTS ..........................................957 DIVISION 5. STORMWATER MANAGEMENT PLANS AND COMPREHENSIVE DRAINAGE PLANS......................................................................................................959 DIVISION 6. INSPECTION AND ENFORCEMENT...............................................962 ARTICLE 5. LOCATION OF UTILITY POLES/CHANGE OF LOCATIONOVERHEAD ELECTRICAL LINES .......................................................................................966 ARTICLE 6. PUBLIC WORKS STANDARD SPECIFICATIONS ..................................973 Chapter 41. RESERVED ....................................................................................976 Chapter 42. WATERWAYS* ...............................................................................977 ARTICLE 1. IN GENERAL ................................................................................977 ARTICLE 2. BOZEMAN CREEK .........................................................................977 PROOFS Page 8 of 977 PART I CHARTER* *Editor’s note—Printed herein is the Bozeman City Charter proposed by the City of Bozeman’s 2004-2006 Local Government Study Commission and was approved by voters at the November 7, 2006, general election. Section 2.03(b) of the charter became effective with the 2007 election; all other sections became effective on January 1, 2008. Amendments are indicated by a history note following in parentheses following the amended section. Obvious misspellings have been corrected. Other changes made for clarity are indicated by brackets. State law reference—Self-government Charter, Const. of Mt. Art. XI, § 5; nature of self-government local governments, MCA 7-1-101 et seq.; charter government, MCA 7-3-701 et seq. PREAMBLE We, the people of the City of Bozeman, under the constitution and laws of the State of Montana, in order to secure the benefits of local self-government and to provide for an honest and accountable commission-manager government, do hereby adopt this Charter and confer upon the city the following powers, subject to the following restrictions, and prescribed by the following procedures and governmental structure. By this action, we secure the benefits of home rule and self-governance and affirm the values of representative democracy, professional management, strong political leadership, citizen participation, and regional cooperation. ARTICLE I. POWERS OF THE CITY* *State law reference—Nature of self-government local governments, MCA 7-1-101 et seq. Sec. 1.01. Powers of the City. The City of Bozeman shall have all powers possible for a city with self-governing powers to have under the constitution and laws of the State of Montana as fully and completely as though they were specifically enumerated in this charter. Sec. 1.02. Construction. (a) Powers. The powers of the city under this charter shall be construed liberally in favor on the city, and the specific mention of particular powers in the charter shall not be construed as limiting in any way the general power granted in this article. (b) Priority Construction. As provided by Article XI, Section 5, of the Constitution of Montana, provisions herein establishing executive, legislative, and administrative structure and organization are superior to statutory provisions. Sec. 1.03. Intergovernmental Relations. The City of Bozeman may participate by contract or otherwise with any governmental entity of the State of Montana or any other state or states or the United States in the performance of any activity which one or more of such entities has the authority to undertake. ARTICLE II. CITY COMMISSION* *State law reference—A local government with self-government powers is subject to state laws establishing legislative procedures or requirements, MCA 7-1-114(1)(c); local government ordinances, resolutions, and initiatives and referendum, MCA 7-5-101 et seq.; office of city council member, MCA 7-4-4401 et seq.; conduct of municipal government, MCA 7-5-4101 et seq. PROOFS Page 9 of 977 Sec. 2.01. General Powers and Duties. All powers of the city shall be vested in the city commission, except as otherwise provided by law or this charter, and the commission shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law. Sec. 2.02. Eligibility, Terms, and Composition. (a) Eligibility. Only registered voters whose principal residence is in the City of Bozeman shall be eligible to hold the office of commission member or mayor. (b) Terms. The term of office of elected officials shall be four years elected in accordance with Article VI. (c) Composition. The commission shall be composed of four members elected by the voters of the city at large in accordance with provisions of Article VI and the mayor. The mayor shall be elected as provided in §2.03(b). Sec. 2.03. Mayor. (a) Powers and Duties. The mayor shall be a voting member of the city commission and shall attend and preside at meetings of the commission; represent the city in intergovernmental relationships; present an annual state of the city message; add an item to the commission agenda prepared by the city manager; assign, subject to the consent of commission, agenda items to sub- committees of the commission; and perform other duties specified by the commission. The mayor shall be recognized as head of the city government for all ceremonial purposes and by the governor for purposes of military law but shall have no administrative duties and shall not interfere with the administration of the city as provided in §2.05(c), below. The mayor shall not have any appointment power to city boards except where required by state law. (b) Mayor Elected At Large. At every regular city election the voters of the city shall elect a mayor at large for a term of four years. The person so elected shall serve as deputy mayor and a commissioner for the first two years of his or her1 term, and mayor for the balance of his or her term of office. State law reference—Office of mayor, MCA 7-4-4301 et seq. Sec. 2.04. Compensation; Expenses. The city commission may determine the annual salary of the mayor and commission members by ordinance, but no ordinance increasing such salary shall become effective until the date of commencement of the terms of commission members elected at the next regular election. The mayor and commission members shall receive their actual ordinary and necessary expenses incurred in the performance of their duties of office. State law reference—Compensation of municipal officers and employees, MCA 7-4-4201 et seq. Sec. 2.05. Prohibitions. (a) Holding Other Office. Except where authorized by law, no commission member shall hold any other elected public office during the term for which the member was elected to the commission. No commission member shall hold any other city office or employment during the term for which the member was elected to the commission. No former commission member shall hold any compensated appointive office or employment with the city until one year after the expiration of the term for which the member was elected to the commission, unless granted a 1 Please note: Language in the charter was not changed to be gender neutral in the same style as the Code of Ordinances. PROOFS Page 10 of 977 waiver by the board of ethics. Nothing in this section shall be construed to prohibit the commission from selecting any current or former commission member to represent the city on the governing board of any regional or other intergovernmental agency, or any city board. (b) Appointments and Removals. Neither the city commission nor any of its members shall in any manner control or demand the appointment or removal of any city administrative officer or employee whom the city manager or any subordinate of the city manager is empowered to appoint, but the commission may express its views and fully and freely discuss with the city manager anything pertaining to appointment and removal of such officers and employees. (c) Interference with Administration. Except for the purpose of inquiries, and investigations under §2.09, the commission or its members shall deal with city officers and employees who are subject to the direction and supervision of the city manager solely through the city manager, and neither the commission nor its members shall give orders to any such officer or employee, either publicly or privately. Sec. 2.06. Vacancies; Forfeiture of Office; Filling of Vacancies. a) Vacancies. The office of a commission member shall become vacant upon the member’s death, resignation, or removal from office or forfeiture of office in any manner authorized by law. If the mayor is absent, incapacitated, dies, resigns from office, or is removed from office, the deputy mayor shall succeed as mayor during said time or absence or incapacity or for the balance of the mayor’s term, as appropriate; and the commission vacancy created therein shall be filled pursuant to this section. b) Forfeiture of Office. A commission member shall forfeit that office if the commission member: (1) Fails to meet the residency requirements, (2) Violates any express prohibition of this charter, (3) Is convicted of a felony, or (4) Fails to attend three consecutive regular meetings of the Commission without being excused by a majority of the Commission. c) Filling of Vacancies. A vacancy in the city commission shall be filled for the remainder of the unexpired term, pursuant to state law. State law reference—Filling of vacancy, MCA 7-4-4112. Sec. 2.07. Judge of Qualifications. The city commission shall be the judge of the grounds for forfeiture of a member’s office, pursuant to §2.06.b. In order to exercise these powers, the commission shall have power to subpoena witnesses, administer oaths and require the production of evidence. A member charged with conduct constituting grounds for forfeiture of office shall be entitled to a public hearing on demand, and notice of such hearing shall be published in one or more newspapers of general circulation in the city pursuant to state law. Sec. 2.08. City Clerk. The city commission or the city manager, as designated by ordinance, shall appoint an officer of the city who shall have the title of city clerk. The city clerk shall give notice of commission meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are assigned by this charter, by the commission or by state law. State law reference—Office of municipal clerk, MCA 7-4-4501 et seq. PROOFS Page 11 of 977 Sec. 2.09. Investigations. The city commission may make investigations into the affairs of the city and the conduct of any city department, office, or agency and for this purpose may subpoena witnesses, administer oaths, take testimony, and require the production of evidence. Failure or refusal to obey a lawful order issued in the exercise of these powers by the commission shall be a misdemeanor punishable pursuant to state law. Sec. 2.10. Procedure. The city commission shall, by ordinance, establish its rules of procedure and time and place of meetings, in accordance with state law. Sec. 2.11. Action Requiring an Ordinance. In addition to other acts required by law or by specific provision of this charter to be done by ordinance, those acts of the city commission shall be by ordinance which: (1) Adopt or amend an administrative code or establish, alter, or abolish any city department, office, or agency; (2) Provide for a fine or other penalty or establish a rule or regulation for violation of which a fine or other penalty is imposed; (3) Levy a new tax; (4) Grant, renew, or extend a franchise; (5) Convey or lease or authorize the conveyance or lease of any lands of the city; (6) Adopt or amend zoning and subdivision regulations; (7) Amend or repeal any ordinance previously adopted; or (8) Adopt, with or without amendment, ordinances proposed under the initiative power. Acts other than those referred to in the preceding sentence may be done either by ordinance or by resolution. State law reference—Municipal ordinances and resolutions, MCA 7-5-4201 et seq. Sec. 2.12. Ordinances in General. Ordinances, regular, emergency, and technical regulations, will be proposed, published, and approved in accordance with state law. In addition to the requirements of state law, ordinances, administrative regulations, resolutions, and the Bozeman Municipal Code will be published electronically. ARTICLE III. CITY MANAGER Sec. 3.01. Appointment; Qualifications; Compensation. The city commission, by a majority vote of its total membership, shall appoint a city manager for an indefinite term and fix the manager’s compensation. The city manager shall be appointed solely on the basis of education and experience in the accepted competencies and practices of local government management. The manager need not be a resident of the city or state at the time of appointment, but may reside outside the city while in office only with the approval of the commission. Sec. 3.02. Removal. If the city manager declines to resign at the request of the city commission, the city commission may suspend the manager by a resolution approved by the majority of the total membership of the PROOFS Page 12 of 977 city commission. Such resolution shall set forth the reasons for suspension and proposed removal. A copy of such resolution shall be served immediately upon the city manager. The city manager shall have fifteen days in which to reply thereto in writing and, upon request, shall be afforded a public hearing, which shall occur not earlier than ten days nor later than fifteen days after such hearing is requested. After the public hearing, if one is requested, and after full consideration, the city commission, by a majority vote of its total membership, may adopt a final resolution of removal. The city manager shall continue to receive full salary until the effective date of a final resolution of removal. Sec. 3.03. Acting City Manager. By administrative order filed with the city clerk, the city manager shall designate a city officer or employee to exercise the powers and perform the duties of city manager during the manager’s temporary absence or disability. The city commission may revoke such designation at any time and appoint another officer of the city to serve until the city manager returns. Sec. 3.04. Powers and Duties of the City Manager. The city manager shall be the chief executive officer of the city, responsible to the commission for the management of all city affairs placed in the manager’s charge by or under this charter. The city manager shall: (1) Appoint and suspend or remove all city employees and appointive administrative officers provided for by or under this charter, except as otherwise provided by law, this charter, or personnel rules adopted pursuant to this charter. The city manager may authorize any administrative officer subject to the manager’s direction and supervision to exercise these powers with respect to subordinates in that officer’s department, office or agency; (2) Direct and supervise the administration of all departments, offices, and agencies of the city, except as otherwise provided by this charter or by law; (3) Attend all city commission meetings unless excused. The city manager shall have the right to take part in discussion but shall not vote; (4) See that all laws, provisions of this charter, and acts of the city commission subject to enforcement by the city manager or by officers subject to the manager’s direction and supervision are faithfully executed; (5) Prepare and submit the annual budget and multi-year capital program to the city commission for its approval, and execute the final budget approved by the commission to achieve the goals of the city; (6) Submit to the city commission and make available to the public a complete report on the finances and administrative activities of the city as of the end of each fiscal year; (7) Make such other reports as the city commission may require concerning operations; (8) Keep the city commission fully advised as to the financial condition and future needs of the city; (9) Make recommendations to the city commission concerning the affairs of the city and facilitate the work of the city commission in developing policy; (10) Provide staff support services for the mayor and commission members subject to the provisions regarding the city clerk under §2.08; (11) Assist the commission in developing long term goals for the city and strategies to implement these goals; PROOFS Page 13 of 977 (12) Encourage and provide staff support for regional and intergovernmental cooperation; (13) Promote partnerships among commission, staff, and citizens in developing public policy and building a sense of community; (14) Perform such other duties as are specified in this charter or may be required by the city commission; (15) Prepare the commission agenda; and (16) Appoint members of temporary advisory committees established by the city manager or the city commission. ARTICLE IV. DEPARTMENTS, OFFICES AND AGENCIES* *State law reference—Officers and employees, MCA 7-4-101 et seq. Sec. 4.01. General Provisions. (a) Creation of Departments. The city commission may establish city departments, offices, or agencies in addition to those created by this charter and may prescribe the functions of all departments, offices, and agencies. No function assigned by this charter to a particular department, office, or agency may be discontinued or, unless this charter specifically so provides, assigned to any other. (b) Direction by city manager. All departments, offices, and agencies under the direction and supervision of the city manager shall be administered by an officer appointed by and subject to the direction and supervision of the city manager. With the consent of commission, the city manager may serve as the head of one or more such departments, offices, or agencies or may appoint one person as the head of two or more of them. Sec. 4.02. Personnel System. Consistent with all applicable federal and state laws, all appointments and promotions of city officers and employees shall be made solely on the basis of merit and qualifications demonstrated by a valid and reliable examination or other evidence of competence. Sec. 4.03. Legal Officer. (a) Appointment. There shall be a legal officer of the city appointed by the city manager subject to confirmation by the city commission. (b) Role. The legal officer shall serve as chief legal adviser to the commission, the manager and all city departments, offices and agencies, shall represent the city in all legal proceedings, and shall perform any other duties prescribed by state law, by this charter, or by ordinance. State law reference—Office of city attorney, MCA 7-4-4601 et seq. Sec. 4.04. Land Use, Development, and Environmental Planning. Consistent with all applicable federal and state laws with respect to land use, development, and environmental planning, the city commission shall: (1) Designate an agency or agencies to carry out the planning function and such decision-making responsibilities as may be specified by ordinance; (2) Adopt a comprehensive plan and determine to what extent zoning and other land use control ordinances must be consistent with the plan; (3) Determine to what extent the comprehensive plan and zoning and other land use PROOFS Page 14 of 977 ordinances must be consistent with regional plan(s); and (4) Adopt development regulations, to be specified by ordinance, to implement the plan. The designated agency, the city manager, and the mayor and commission shall seek to act in cooperation with other jurisdictions and organizations in their region to promote integrated approaches to regional issues. State law reference—Land resources and use, MCA 76-1-101 et seq. Sec. 4.05. Municipal Court. There shall be a municipal court as prescribed by state law. State law reference—Municipal courts, MCA 3-6-101 et seq. Sec. 4.06. Neighborhood Associations. (a) Purpose. The citizens of Bozeman value the contribution neighborhoods can make to the governance of the city. Therefore, it is the purpose of this article to strengthen neighborhood participation where it exists, and to encourage and support neighborhood participation where it does not yet exist. (b) Recognition of neighborhood associations. The city commission shall establish by ordinance minimum recognition requirements for neighborhood associations. These standards shall include, but not be limited to: (1) clear geographic boundaries; (2) procedures for defining a resident for neighborhood association membership; (3) adherence to established by-laws that ensure democratic deliberative and voting procedures; (4) periodic meetings, including an annual meeting; (5) copy of the by-laws and all amendments filed with the city; (6) inclusion of all residents in the neighborhood association; and (7) demonstrating that it has a means of communicating with all residents in a neighborhood association. (c) Minimum Standards. A neighborhood association must meet and continue to maintain conformity with the minimum standards as established by ordinance in order to be recognized by the city and to be eligible to elect members to the InterNeighborhood Council. Neighborhood associations existing on the date of the enactment of this charter shall have one year after the enactment of said city ordinance to come into compliance. (d) InterNeighborhood Council. There is hereby established an InterNeighborhood Council to be composed of representatives selected by each recognized neighborhood association. (1) The InterNeighborhood Council shall provide a forum for Neighborhood Associations to come together, share information, and make recommendations to the city commission, city staff, and the mayor on city-wide issues. This does not preclude a neighborhood association from taking its concerns directly to the city or the commission. (2) The InterNeighborhood Council shall meet on a regular basis to address city-wide concerns and foster dialogue between neighborhoods. (3) The InterNeighborhood Council shall adopt by-laws governing the conduct of their business. Such by-laws shall be approved by the city commission, or as designated by ordinance. A vacancy on the InterNeighborhood Council shall be filled only by the PROOFS Page 15 of 977 affected neighborhood association. The city may appoint a city commissioner as a non-voting member of the InterNeighborhood Council. (e) City Liaison. The City shall designate a staff member to serve as liaison to the InterNeighborhood Council and neighborhood associations. Sec. 4.07. City Boards, Commissions and Committees. Except for boards and commissions established by statute, the commission may create boards, commissions, or committees as determined necessary. All city boards, commissions, or committees will be established by the city commission and members appointed by the commission and the mayor, when so required by law, following a public solicitation through the newspaper advertised not less than twice annually. Between public solicitations for members, appointments may be made to fill unexpected vacancies or vacancies not filled through the last round of advertisements from those applications on file as of the date of appointment. Subcommittees of existing boards, commissions, or committees may be appointed by the city commission without the necessity of public solicitation. The commission may authorize the city manager to establish ad hoc special commissions for specific purposes without public advertisement. Except where prohibited by law, the terms on all boards shall be staggered. ARTICLE V. FINANCIAL MANAGEMENT* *State law reference—Financial administration and taxation, MCA 7-6-101 et seq.; debt management, MCA 7-7-101 et seq. Sec. 5.01. Fiscal Year. The fiscal year of the city shall begin on the first day of July and end on the last day of June, or as otherwise provided by state law. Sec. 5.02. Submission of Budgets and Budget Message. The city manager shall submit to the city commission a preliminary budget for the ensuing fiscal year and an accompanying message and a final budget, both in a timely manner. The publication requirements must conform to the provisions of state law for a municipality and be available electronically. Sec. 5.03. Budget Message. The city manager’s message shall explain the budget both in fiscal terms and in terms of the work programs, linking those programs to organizational goals and community priorities. It shall outline the proposed financial policies of the city for the ensuing fiscal year and the impact of those policies on future years. It shall describe the important features of the budget; indicate any major changes from the current year in financial policies, expenditures, and revenues together with the reasons for such changes; summarize the city’s debt position, including factors affecting the ability to raise resources through debt issues; and include such other material as the city manager deems desirable. Sec. 5.04. Budget. (a) Statutory Provisions. The preliminary annual operating budget, the final budget, and amended budgets must be prepared in accordance with state laws governing municipal budgets as then in effect. (b) Unreserved Fund Balance. A minimum level of budgeted general fund unreserved fund balance shall be established by ordinance and shall be in accordance with the GFOA (Government Finance Officers Association) recommended practice on appropriate levels of unreserved fund balance in the general fund. This provision does not limit appropriations in case of emergency pursuant to state law. PROOFS Page 16 of 977 Sec. 5.05. Adjusting Appropriations. (a) Reduction of Appropriations. In addition to the requirements of state law, if at any time during the fiscal year it appears probable to the city manager that the revenues or fund balances available will be insufficient to finance the expenditures for which appropriations have been authorized, the manager shall report to the city commission without delay, indicating the estimated amount of the deficit, any remedial action taken by the manager, and recommendations as to any other steps to be taken. The commission shall then take such further action as it deems necessary to prevent or reduce any deficit and, for that purpose, it may by ordinance reduce or eliminate one or more appropriations. (b) Transfer of Appropriations. In addition to the requirements of state law, at any time during or before the fiscal year, the city commission may by resolution transfer part or all of the unencumbered appropriation balance from one department, fund, service, or organizational unit to the appropriation for other departments or organizational units or a new appropriation as provided by state law. The city manager may transfer funds among programs within a department, fund, service, or organizational unit and shall report such transfers to the commission in writing in a timely manner. (c) Limitation; Effective Date. In addition to the requirements of state law, no appropriation for debt service may be reduced or transferred, except to the extent that the debt is refinanced and less debt service is required, and no appropriation may be reduced below any amount required by law to be appropriated or by more than the amount of the unencumbered balance thereof. The supplemental and emergency appropriations and reduction or transfer or appropriations authorized by this section may be made effective immediately upon adoption. Sec. 5.06. Administration and Fiduciary Oversight of the Budget. The city commission shall provide by ordinance the procedures for administration and fiduciary oversight of the budget. Sec. 5.07. Capital Program. (a) Submission to City Commission. The city manager shall prepare and submit to the city commission a multi-year capital program no later than December 15 for the ensuing fiscal year. (b) Contents. The capital program shall include: (1) A clear general summary of its contents; (2) Identification of the long-term goals of the community; (3) A list of all capital improvements and other capital expenditures which are proposed to be undertaken during the fiscal years next ensuing, with appropriate supporting information as to the necessity for each; (4) Cost estimates and recommended time schedules for each improvement or other capital expenditure; (5) Method of financing upon which each capital expenditure is to be reliant; (6) The estimated annual cost of operating and maintaining the facilities to be constructed or acquired; (7) A commentary on how the plan addresses the sustainability of the community and the region of which it is a part; and (8) Methods to measure outcomes and performance of the capital plan related to the long-term goals of the community. PROOFS Page 17 of 977 The above shall be revised and extended each year with regard to capital improvements still pending or in process of construction or acquisition. Sec. 5.08. City Commission Action on Capital Program. (a) Notice and Hearing. The city commission shall publish the general summary of the capital program and a notice stating: (1) The times and places where copies of the capital program are available for inspection by the public, and (2) The time and place, not less than two weeks after such publication, for a public hearing on the capital program. (b) Adoption. The city commission by resolution shall adopt the capital program for the ensuing fiscal year, with or without amendment after the public hearing, but no later than the last day of March of the current fiscal year. Sec. 5.09. Independent Audit. The city commission shall provide for an independent annual audit of all city accounts in accordance with state law and may provide for more frequent audits as it deems necessary. No accountant or firm may provide any other services to the city during the time it is retained to provide independent audits to the city; however, the city commission may waive this requirement by a majority vote at a public meeting. ARTICLE VI. ELECTIONS* *State law reference—Elections, MCA 13-1-101 et seq. Sec. 6.01. City Elections. (a) Regular Elections. Regular city elections shall be held and administered in odd numbered years, pursuant to state law. Candidates shall run for office without party designation. (b) Beginning of term. The terms of new commission members shall start at the beginning of the first regularly scheduled meeting in January after their election. Sec. 6.02. Methods of Electing Commission Members. At the first election under this charter, commission members shall be elected at large for four- year terms. The mayor shall be elected pursuant to §2.03(b). Sec. 6.03. Initiative; Citizen Referendum, and Recall. The powers of initiative, citizen referendum, and recall are hereby reserved to the electors of the city as provided by state law. In verifying petitions for initiatives and referendums, the percentage of signatures required under state law shall be reduced in proportion to the number of inactive registered voters as most recently certified by the county election administrator pursuant to state law. ARTICLE VII. GENERAL PROVISIONS Sec. 7.01. Conflicts of Interest; Board of Ethics. (a) Conflicts of Interest. The use of public office for private gain is prohibited. The city commission shall implement this prohibition by ordinance, the terms of which shall include, but not be limited to: acting in an official capacity on matters in which the official has a private financial interest clearly separate from that of the general public, the acceptance of gifts and other things of value, acting in a private capacity on matters dealt with as a public official, the use of confidential information, and appearances by city officials before other city agencies on behalf of PROOFS Page 18 of 977 private interests. This ordinance shall include a statement of purpose and shall provide for reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters and, insofar as permissible under state law, shall provide for fines and imprisonment for violations. (b) Board of Ethics. The city commission shall, by ordinance, establish an independent board of ethics pursuant to state law. The city commission shall appropriate sufficient funds to the city manager to provide annual training and education of city officials, city boards, and employees regarding the state and city ethics codes. City officials, board members, and employees shall take an oath to uphold the state and city ethics codes. State law reference—Code of ethics, MCA 2-2-101 et seq. Sec. 7.02. Campaign Finance. In order to combat the potential for, and appearance of, corruption and to preserve the ability of all qualified citizens to run for public office, the city shall, insofar as is permitted by state and federal law, have the authority to enact ordinances designed to limit contributions and expenditures by candidates for locally elected office. Ordinances pursuant to this section may include, but are not limited to: limitations on candidate and candidate committees that affect the amount, time, place, and source of financial and in-kind contributions; and voluntary limitations on candidate and candidate committee expenditures tied to financial or non-financial incentives. ARTICLE VIII. CHARTER AMENDMENT* *State law reference—Amendment of charter, MCA 7-3-709. Sec. 8.01. Proposal of Amendment. Amendments to this charter may be framed and proposed: (1) In the manner provided by state law, or (2) By ordinance of the commission containing the full text of the proposed amendment, or (3) By report of a study commission created pursuant to state law, or (4) By voters of the city. Proposal of an amendment by the voters of the city shall be by petition containing the full text of the proposed amendment and shall be governed by the same procedures and requirements prescribed in Article VI for initiative petitions until such time as a final determination as to the sufficiency of the petition is made, except that there shall be no limitation as to subject matter and that the petition must be signed by registered voters of the city equal to that required by state law. In verifying petitions, the percentage of required signatures shall be reduced pursuant to §6.03, above. Sec. 8.02. Election. Upon delivery to the election authorities of the report of a charter commission or delivery by the city clerk of an adopted ordinance or a petition finally determined sufficient, proposing an amendment pursuant to §8.01, or as otherwise provided by state law, the election authorities shall submit the proposed amendment to the voters of the city at an election, pursuant to state law. Sec. 8.03. Adoption of Amendment. If a majority of those voting upon a proposed charter amendment vote in favor of it, the amendment shall become effective at the time fixed in the amendment or, if no time is therein fixed, 30 days after its adoption by the voters. PROOFS Page 19 of 977 ARTICLE IX. TRANSITION AND SEVERABILITY Sec. 9.01. Officers, Employees and Elected Officials. (a) Rights and Privileges Preserved. Nothing in this charter except as otherwise specifically provided, shall affect or impair the rights or privileges of persons who are city officers or employees at the time of its adoption. (b) Continuance of Office or Employment. Except as specifically provided by this charter if, at the time this charter takes full effect, a city administrative officer or employee holds any office or position which is or can be abolished by or under this charter, he or she shall continue in such office or position until the taking effect of some specific provision under this charter directing that he or she vacate the office or position. Elected officials serving at the time this charter is approved by the voters shall continue in office for the balance of their term. (c) Personnel System. An employee holding a city position at the time this charter takes full effect, who was serving in that same or a comparable position at the time of its adoption, shall not be subject to competitive tests as a condition of continuance in the same position but in all other respects shall be subject to the personnel system provided for in §4.02. Sec. 9.02. Pending Matters. All rights, claims, actions, orders, contracts, and legal administrative proceedings shall continue except as modified pursuant to the provisions of this charter and in each case shall be maintained, carried on, or dealt with by the city department, office, or agency appropriate under this charter. Sec. 9.03. State and Municipal Laws. All city ordinances, resolutions, orders, and regulations in force when this charter becomes fully effective shall be updated to conform with this charter pursuant to state law. Any ordinance or resolution required to be established pursuant to this charter shall be completed as required by state law. Sec. 9.04. Schedule. (a) Mayor Election. Section 2.03(b) shall take effect with the 2007 city election, with said mayor being seated after serving as deputy mayor at the beginning of the first commission meeting in January, 2010. (b) Referendum on Increasing the Commission. At the general election in 2010, the city commission shall place before the voters, with conforming charter amendments, the issue of adding two members to the city commission. Should the voters approve said increase, said commission members shall be elected during the regular city election in 2011 and seated at the first regular commission meeting in January 2012. (c) Time of Taking Full Effect. The charter shall be in full effect for all purposes pursuant to the schedule established by state law. Sec. 9.05. Severability. If any provision of this charter is held invalid, the other provisions of the charter shall not be affected. If the application of the charter or any of its provisions to any person or circumstance is held invalid, the application of the charter and its provisions to other persons or circumstances shall not be affected. PROOFS Page 20 of 977 PART II CODE OF ORDINANCES Chapter 1 GENERAL PROVISIONS Sec. 1.01.010. Adoption.2 There is hereby adopted the "Bozeman Municipal Code," as published by Book Publishing Company, Seattle, Washington. (Code 3????, § 1.01.010; Ord. No. 1118 § 1, 1982) Sec. 1.01.010. Title; citation; reference. This Code shall be known as the "Bozeman Municipal Code" and it may be referred to as the Bozeman Municipal Code in any prosecution for the violation of any provision thereof or any proceeding at law or equity. Prosecutions for violations of the city's ordinances and actions based thereon shall refer to the sections of this Code as well as the underlying ordinance upon which the prosecution or action is based. Amendments to any ordinance or portions thereof of Bozeman, Montana, shall also refer to the Bozeman Municipal Code sections under which such ordinances are codified. (Code 1982, § 1.01.020; Ord. No. 1118 § 1, 19824) State law reference—Register of ordinances and codification, MCA 7-5-107; adoption and amendment of codes by reference, MCA 7-5-108.5 Sec. 1.01.020. Provisions codified. This Code consists of all the regulatory and penal ordinances and certain of the administrative ordinances of the city. (Code 1982, § 1.01.030; Ord. No. 1118 § 1, 1982) Sec. 1.01.040. Ordinances passed prior to adoption of the code.6 The last ordinance included in this code was Ordinance No. 1104, passed April 12, 1982. The following ordinances, passed subsequent to Ordinance No. 1104, but prior to adoption of this code, are hereby adopted and made a part of this code: 1105, 1106, 1108, 1109, 1112, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122 and 1123. (Code 1982, § 1.01.040; Ord. No. 1118 § 1, 1982) 2 This section can be deleted since it will be covered in the Code adopting ordinance. Ok. 3 What year was this Code adopted? 1982 was the first publication. Delete references to “prior code.” 4 The later ordinance history notes will have the entire adoption date. Ok. 5 State law references have been annotated throughout and are indicated by underling. Other changes are indicated by underling and strike-thru type as well. Ok. 6 This section is obsolete now and can be deleted. The cut-off date for the new Code will appear in the adopting ordinance. Ok. PROOFS Page 21 of 977 Sec. 1.01.030. Definitions.7 A. The following words and phrases, whenever used in the ordinances of the city and this Code, shall be construed as defined in this section unless from the context a different meaning is intended or unless a different meaning is specifically defined and more particularly directed to the use of such words or phrases: 1. Agencies. Any reference to any local, state or federal agency, shall include any successor agency. 2. City. The term "city" and 8"town" means the City of Bozeman, Montana, or the area within the territorial limits of the City of Bozeman, Montana, and such territory outside the city over which the city has jurisdiction or control by virtue of any constitutional or statutory provision. 3. City commission. The term "city commission" means the city commission of the city of Bozeman. "All its members" or "all commissioners" means the total number of commissioners holding office. 4. Code. The term "Code" means the "Bozeman Municipal Code," as designated in section 1.01.010. 5. County. The term "county" means the county of Gallatin. 6. Law. The term "law" denotes applicable federal law, the constitution and statutes of the State of Montana, the ordinances of the City of Bozeman, and, when appropriate, any and all rules and regulations which may be promulgated thereunder, and including all amendatory or successor laws or rules.9 7. May. The term "may" is permissive. 8. MCA. The abbreviation "MCA" shall mean the Montana Code Annotated, as hereafter amended, and any successor statute. 9. Month. The term "month" means a calendar month. 10. Must, shall. The terms "must" and "shall" are each mandatory. 11. Oath. The term "oath" means and includes an affirmation or declaration in all cases in which, by law, an affirmation may be substituted for an oath, and in such cases the words "swear" and "sworn" shall be equivalent to the words "affirm" and "affirmed." 12. Owner. The term "owner," when applied to a building or land, means and includes any part owner, joint owner, tenant in common, joint tenant, tenant by the entirety, of the whole or a part of such building or land. 7 I suggest adding the following: Ok. Agencies. Any reference to any local, state or federal agency, shall include any successor agency. The word "Code" means the "Bozeman Municipal Code," as designated in section 1.01.020. The abbreviation "MCA" shall mean the Montana Code Annotated, as hereafter amended, and any successor statute. 8 Why is the word “town” needed? Delete. 9 I suggest adding “and including all amendatory or successor laws.” Ok. PROOFS Page 22 of 977 13. Person. The term "person" means and includes a natural person, joint venture, joint stock company, partnership, association, club, company, corporation, business, trust, organization, or the manager, lessee, agent, servant, officer or employee of any of any of them. 14. Personal property. The term "personal property" means and includes money, goods, chattels, things in action and evidences of debt. 15. Preceding, following. The terms "preceding" and "following" mean next before and next after, respectively. 16. Property. The term "property" means and includes real and personal property. 17. Real property. The term "real property" means and includes lands, tenements and hereditaments. 18. Sidewalk. The term "sidewalk" means that portion of a street between the curbline and the adjacent property line intended for the use of pedestrians. 19. State. The term "state" means the State of Montana. 20. Street. The term "street" means and includes all streets, highways, avenues, lanes, alleys, courts, places, squares, curbs or other public ways in this city which have been or may hereafter be dedicated and open to public use, or such other public property so designated in any law of this state. 21. Tenant, occupant. The terms "tenant" and "occupant," applied to a building or land, mean and include any person who occupies the whole or a part of such building or land, whether alone or with others. 22. Written. The term "written" means and includes printed, type-written, mimeographed, multigraphed, or otherwise reproduced in permanent visible form. 23. Year. The term "year" means a calendar year unless otherwise provided. (Code 1982, § 1.04.010; Ord. No. 1118 § 2, 1982) State law reference—General laws and definitions, MCA 1-1-101 et seq. Sec. 1.01.040. Interpretation of language. All words and phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning. (Code 1982, § 1.04.030; Ord. No. 1118 § 2, 1982) Sec. 1.01.050. Grammatical interpretation. A. The following grammatical rules shall apply in the ordinances of the city and this Code, unless it is apparent from the context that a different construction is intended: 1. Gender. Each gender includes the masculine, feminine and neuter genders. 2. Singular and plural. The singular number includes the plural and the plural includes the singular. 3. Tenses. Words used in the present tense include the past and the future tenses and vice versa, unless manifestly inapplicable. (Code 1982, § 1.04.040; Ord. No. 1118 § 2, 1982) PROOFS Page 23 of 977 Sec. 1.01.060. Reference applies to all amendments. Whenever a reference is made to this Code as the Bozeman Municipal Code or to any portion thereof, or to any ordinance of the city, the reference shall apply to all amendments, corrections and additions heretofore, now or hereafter made. (Code 1982, § 1.01.050; Ord. No. 1118 § 1, 1982) Sec. 1.01.070. Chapter, article, division, subdivision and section headings. Title, Chapter, article, division, subdivision and section headings contained in this Code shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of any title, chapter, article, division, subdivision or section hereof. (Code 1982, § 1.01.060; Ord. No. 1118 § 1, 1982) Sec. 1.01.080. Reference to specific ordinances. The provisions of this Code shall not in any manner affect matters of record which refer to, or are otherwise connected with ordinances which are therein specifically designated by number or otherwise and which are included within the Code, but such reference shall be construed to apply to the corresponding provisions contained within this Code. (Code 1982, § 1.01.070; Ord. No. 1118 § 1, 1982) Sec. 1.01.090. Title of office. Use of the title of any officer, employee, department, board or commission means that officer, employee, department, board or commission of the city. (Code 1982, § 1.04.020; Ord. No. 1118 § 2, 1982) Sec. 1.01.100. Acts by agents. When an act is required by this Code or an ordinance, the same being such that it may be done as well by an agent as by the principal, such requirement shall be construed to include all such acts performed by an authorized agent. (Code 1982, § 1.04.050; Ord. No. 1118 § 2, 1982) Sec. 1.01.110. Prohibited acts include causing and permitting. Whenever in the ordinances of the city any act or omission is made unlawful, it shall include causing, allowing, permitting, aiding, abetting, suffering or concealing the fact of such act or omission. (Code 1982, § 1.04.060; Ord. No. 1118 § 2, 1982) Sec. 1.01.120. Computation of time. Except when otherwise provided, the time within which an act is required to be done shall be computed by excluding the first day and including the last day, unless the last day is Sunday or a holiday, in which case it shall also be excluded. (Code 1982, § 1.04.070; Ord. No. 1118 § 2, 1982) Sec. 1.01.130. Construction. The provisions of the ordinances of the city and all proceedings under them are to be construed with a view to effect their objects and to promote justice. (Code 1982, § 1.04.080; Ord. No. 1118 § 2, 1982) PROOFS Page 24 of 977 Sec. 1.01.140. Repeal shall not 10renewreview any ordinances. The repeal of an ordinance shall not repeal the repealing clause of an ordinance or renewreview any ordinance which has been repealed thereby. (Code 1982, § 1.04.090; Ord. No. 1118 § 2, 1982) Sec. 1.01.150. Effect of Code on past actions and obligations. Neither the adoption of this Code nor the repeal or amendments hereby of any ordinance or part or portion of any ordinance of the city shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date of the ordinance codified in this chapter Code, nor be construed as a waiver of any license, fee or penalty at said effective date due and unpaid under such ordinances, nor be construed as affecting any of the provisions of such ordinances relating to the collection of any such license, fee or penalty, or the penal provisions applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. (Code 1982, § 1.01.080; Ord. No. 1118 § 1, 1982) 10 I believe this should be “renew.” Yes. PROOFS Page 25 of 977 Sec. 1.01.160. Certain provisions saved from repeal11. 11 Note general sections taken from the Billings Code: Yes. Add. Sec. 1-106. Certain provisions saved from repeal. Nothing in this Code or the ordinance adopting this Code shall repeal any of the following when not inconsistent with this Code: (1) Any ordinance or resolution promising or guaranteeing the payment of money for the city or authorizing the issuance of any bonds of the city or any evidence of the city's indebtedness, or any contract or obligation assumed by the city; (2) Any administrative ordinances or resolutions of the council; (3) The annual tax levy; (4) Any right or franchise conferred by ordinance or resolution on any person or corporation; (5) Any ordinance relating to the city boundaries or the corporate limits; (6) Any ordinance annexing territory to the city; (7) Any ordinance naming, opening, accepting or vacating streets or alleys in the city; (8) Any ordinance relating to street, sidewalk, alley, sewer and other public improvements and assessments; (9) Any ordinance relating to zoning map amendments; (10) Any ordinance relating to schedules containing descriptions of restricted or prohibited parking areas and one-way streets; (11) Any ordinance relating to the establishment or designation of through streets or stop intersections or the turning or moving of vehicles; (12) Any ordinance relating to automatic grade crossing signals; (13) Any prosecution, suit or proceeding pending or any judgment rendered prior to the effective date of this Code. Sec. 1-109. Supplementation of Code. (a) By contract or by city personnel, supplements to this Code shall be prepared and printed whenever authorized or directed by the city council. A supplement to the Code shall include all substantive permanent and general parts of ordinances passed by the city council during the period covered by the supplement and all changes made thereby in the Code, and shall also include all amendments to the Charter during the period. The pages of a supplement shall be so numbered that they will fit properly into the Code and will, where necessary, replace pages which have become obsolete or partially obsolete, and the new pages shall be so prepared that, when they have been inserted, the Code will be current through the date of the adoption of the latest ordinance included in the supplement. (b) In preparing a supplement to this Code, all portions of the Code which have been repealed shall be excluded from the Code by the omission thereof from reprinted pages. (c) When preparing a supplement to this Code, the codifier (meaning the person, agency or organization authorized to prepare the supplement) may make formal, nonsubstantive changes in ordinances and parts of ordinances included in the supplement, insofar as it is necessary to do so to embody them into a unified code. For example, the codifier may: (1) Organize the ordinance material into appropriate subdivisions; (2) Provide appropriate catchlines, headings and titles for sections and other subdivisions of the Code printed in the supplement, and make changes in such catchlines, headings and titles; (3) Assign appropriate numbers to sections and other subdivisions to be inserted in the Code and, where necessary to accommodate new material, change existing section or other subdivision numbers; (4) Change the words "this ordinance" or words of the same meaning to "this chapter," "this article," "this division," etc., as the case may be, or to "sections _________ to _________" (inserting section numbers to indicate the sections of the Code which embody the substantive sections of the ordinance incorporated into the Code); and PROOFS Page 26 of 977 A. Nothing in this Code or the ordinance adopting this Code shall repeal any of the following when not inconsistent with this Code: 1. Any ordinance or resolution promising or guaranteeing the payment of money for the city or authorizing the issuance of any bonds of the city or any evidence of the city's indebtedness, or any contract or obligation assumed by the city; 2. Any administrative ordinances or resolutions of the commission; 3. The annual tax levy; 4. Any right or franchise conferred by ordinance or resolution on any person or corporation; 5. Any ordinance relating to the city boundaries or the corporate limits; 6. Any ordinance annexing territory to the city; 7. Any ordinance naming, opening, accepting or vacating streets or alleys in the city; 8. Any ordinance relating to street, sidewalk, alley, sewer and other public improvements and assessments; 9. Any ordinance relating to zoning map amendments; 10. Any ordinance relating to schedules containing descriptions of restricted or prohibited parking areas and one-way streets; 11. Any ordinance relating to the establishment or designation of through streets or stop intersections or the turning or moving of vehicles; 12. Any ordinance relating to automatic grade crossing signals; 13. Any prosecution, suit or proceeding pending or any judgment rendered prior to the effective date of this Code. Sec. 1.01.170. Special ordinances12. All ordinances shall contain a specific codification instruction. The city attorney has discretion whether to codify special ordinances of restricted application, such as those providing for emergency or interim measures; bond issues; elections; the conveyance of real property; the granting, renewal, or extension of a franchise; annexations; street vacations and dedications; street and sidewalk improvements; and the repeal of other ordinances. Such ordinances, if not codified, shall be kept in a separate index by the city clerk. Sec. 1.01.180. Codification powers.13 The city attorney may change the wording of captions; rearrange sections and change reference numbers to agree with the renumbered chapters, sections or other parts; substitute the proper subsection, section, chapter or other division numbers; strike out figures or words that are merely repetitious; change capitalization and style for the purpose of uniformity; and correct manifest clerical or typographical errors. (5) Make other nonsubstantive changes necessary to preserve the original meaning of ordinance sections inserted into the Code; but, in no case, shall the codifier make any change in the meaning or effect of ordinance material included in the supplement or already embodied in the Code. 12 Section added by city staff. 13 Section added by city staff. PROOFS Page 27 of 977 Sec. 1.01.190. Fees, charges, deposits, bond and insurance amounts.14 Fees, charges, deposits, bond and insurance amounts shall be adopted by resolution of the city commission unless specifically adopted in this Code. Sec. 1.01.190. Supplementation of Code. A. By contract or by city personnel, supplements to this Code shall be prepared and printed whenever authorized or directed by the city commission. A supplement to the Code shall include all substantive permanent and general parts of ordinances passed by the city commission during the period covered by the supplement and all changes made thereby in the Code, and shall also include all amendments to the Charter during the period. The pages of a supplement shall be so numbered that they will fit properly into the Code and will, where necessary, replace pages which have become obsolete or partially obsolete, and the new pages shall be so prepared that, when they have been inserted, the Code will be current through the date of the adoption of the latest ordinance included in the supplement. B. In preparing a supplement to this Code, all portions of the Code which have been repealed shall be excluded from the Code by the omission thereof from reprinted pages. C. When preparing a supplement to this Code, the codifier (meaning the person, agency or organization authorized to prepare the supplement) may make formal, nonsubstantive changes in ordinances and parts of ordinances included in the supplement, insofar as it is necessary to do so to embody them into a unified code. For example, the codifier may: 1. Organize the ordinance material into appropriate subdivisions; 2. Provide appropriate catchlines, headings and titles for sections and other subdivisions of the Code printed in the supplement, and make changes in such catchlines, headings and titles; 3. Assign appropriate numbers to sections and other subdivisions to be inserted in the Code and, where necessary to accommodate new material, change existing section or other subdivision numbers; 4. Change the words "this ordinance" or words of the same meaning to "this chapter," "this article," "this division," etc., as the case may be, or to "sections ___ to ___" (inserting section numbers to indicate the sections of the Code which embody the substantive sections of the ordinance incorporated into the Code); and 5. Make other nonsubstantive changes necessary to preserve the original meaning of ordinance sections inserted into the Code; but, in no case, shall the codifier make any change in the meaning or effect of ordinance material included in the supplement or already embodied in the Code. Sec. 1.01.090. Effective date.15 This code shall become effective on the date the ordinance adopting this code as the Bozeman Municipal Code becomes effective. (Code 1982, § 1.01.090; Ord. No. 1118 § 1, 1982) 14 Section added by city staff. 15 This section will be covered by the Code adopting ordinance and can be deleted. Ok. PROOFS Page 28 of 977 Sec. 1.01.200. Constitutionality. If any section, subsection, sentence, clause or phrase of this Code is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Code. The city commission council declares that it would have passed this Code, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional, and if for any reason this Code should be declared invalid or unconstitutional, then the original ordinance shall be in full force and effect. (Code 1982, § 1.01.100; Ord. No. 1118 § 1, 1982) Sec. 1.01.110.16 "All Ordinances and Resolutions in effect on July 1, 2001 are hereby re-adopted under the City of Bozeman's Self-Government Powers and all said Ordinances and Resolutions shall remain in force until they expire by their own limitation or shall be altered or repealed by the Bozeman City Commission." (Ord. No. 1551 § 1, 12-3-2001) Sec. 1.01.210. General penalty for Code violations. Unless otherwise specifically provided in the Bozeman Municipal Code, any person, firm or corporation, their agents or servants, who violates any of the provisions of the Bozeman Municipal Code shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine in any sum not exceeding $500.00 or by imprisonment for a period not exceeding six months, or both such fine and imprisonment, and in addition shall pay all costs and expenses of the case. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. (Code 1982, § 1.16.010; Ord. No. 1372, § 1, 1993) State law reference—Limitation on penalties, MCA 7-1-111(8), 7-5-109. Sec. 1.12.010. Recovery of fines or penalties--statute of limitations.17 All actions to recover any fines, forfeitures or penalties for the violation of any ordinance shall be commenced within two years after the right of action accrued. (Code 1982, § 1.12.010) 16 Do you wish to print your Charter in front of the Code? Yes. Delete this section as transitional. 17 City staff requests deletion of section. PROOFS Page 29 of 977 Chapter 2 ADMINISTRATION* *State law reference—Government structure and administration, MCA 2-1-101 et seq.; nature of self- government local governments, MCA 7-1-101 et seq. ARTICLE 1. IN GENERAL Sec. 2.01.010. Corporate seal adopted.18 A seal of circular form, with the words "City of Bozeman, Gallatin County, Montana," on the edge of the circle, and having in the center thereof a self-binding harvester and a prostrate sheaf, and underneath the date 1883, is hereby adopted and declared to be the corporate seal of the city of Bozeman, to be used in all cases in which a seal is necessary to be used by the corporation. (19Prior code, § 2.04.010;Code 1982, § 1.08.010) ARTICLE 2. CITY COMMISSION* *State law reference—A local government with self-government powers is subject to state laws establishing legislative procedures or requirements, MCA 7-1-114(1)(c); local government ordinances, resolutions, and initiatives and referendum, MCA 7-5-101 et seq.; office of city council member, MCA 7-4-4401 et seq.; conduct of municipal government, MCA 7-5-4101 et seq. Sec. 2.02.010. Oath of office. Every person elected commissioner shall, within ten days thereafter, file with the city clerk an oath of office which the clerk shall then file with the county clerk and recorder. (Code 1982, § 2.04.010; Ord. No. 1100, § 1, 1982; Ord. No. 1727, § 1(2.04.010), 12-3-2007; Ord. No. 1757, § 1(2.04.010), 2-23-2009; Ord. No. 1807, § 2(2.04.010), 5-9-2011) Sec. 2.02.020. Election; term of office--bond.20 A. Commissioners shall be elected as provided in the Charter. B. Every person elected commissioner shall, within ten days thereafter, file with the city clerk their oath of office which shall be filed with the county clerk and county recorder. (Code 1982, § 2.04.020; Ord. No. 1100, § 2, 1982; Ord. No. 1654, § 1, 11-21-2005; Ord. No. 1727, § 1(2.04.020), 12-3-2007; Ord. No. 1757, § 1(2.04.020), 2-23-2009) Sec. 2.02.030 020. Mayor and deputy mayor; powers and duties. The presiding officer of the commission shall be the mayor. During the absence of the mayor, the deputy mayor shall discharge the duties and exercise the powers and authority of the mayor. The presiding officer shall preserve strict order and decorum at all meetings of the commission and confine members in debates to the question under consideration. The presiding officer may assign each commissioner to a seat at the commission table as the presiding officer deems advisable. Upon passing the gavel, the presiding officer may move or second any item of business then before the commission. The presiding officer shall state, or cause to be stated, every motion coming before the commission, announce the decision of the commission on all subjects, and decide all questions of order, subject, however, to an appeal to the commission, in which event a majority vote of the commission shall govern and conclusively determine such question of order. The presiding officer 18 Do you need a whole chapter for one section? No. Same throughout the Code. 19 Would you like to include the year of adoption of the prior code? Delete prior code reference. 20 This section has been struck through as it did not appear to be included in Ordinance No. 1807. PROOFS Page 30 of 977 shall vote on all questions with the presiding officer’s name being called last. The mayor shall sign all ordinances and resolutions adopted by the commission during the mayor’s presence. In the event of the absence of the mayor, the deputy mayor or presiding officer shall sign ordinances or resolutions as then adopted. (Code 1982, § 2.04.030; Ord. No. 1727, § 1(2.04.030), 12-3-2007; Ord. No. 1757, § 1(2.04.030), 2-23-2009; Ord. No. 1807, § 3(2.04.020), 5-9-2011) Sec. 2.02.060 030. City clerk21. The city clerk shall, pursuant to section 2.02.130, record all meetings of the commission and shall create minutes of the proceedings of the commission and shall maintain all files and records, including the record of all ordinances and resolutions, and perform such other duties as may be required by ordinance or resolution or order of the commission, and the city clerk shall be the custodian of the corporate seal of the city. (Ord. No. 1727, § 1(2.04.060), 12-3-2007; Ord. No. 1757, § 1(2.04.060), 2-23-2009; Ord. No. 1807, § 4(2.04.030), 5-9-2011) Sec. 2.02.100 040. Robert’s Rules of Order Parliamentary authority. Unless otherwise specifically provided herein or provided by statute, all meetings and hearings of the commission shall be conducted in accordance with this article. In all cases not covered by this article, the controlling parliamentary authority shall be the latest edition of Robert's Rules of Order, Newly Revised. (Ord. No. 1727, § 1(2.04.100), 12-3-2007; Ord. No. 1757, § 1(2.04.100), 2-23-2009; Ord. No. 1807, § 5(2.04.040), 5-9-2011) Sec. 2.02.110 050. Meeting agendas. A. All reports, communications, ordinances, resolutions, contract documents or other matters to be submitted to the commission shall be submitted to the city clerk no later than 5:00 p.m. on the Thursday immediately preceding the next scheduled commission meeting; provided, however, the city manager may approve late submittals deemed to be in the city's best interest, but only if the items are provided to the commission and made available to the public at least 48 hours prior to the scheduled meeting time, excepting items of an emergency nature. The city clerk, the mayor, and the city manager shall arrange a list of such matters according to the order of business specified herein, and furnish each member of the commission, the city manager, city attorney and the public through the city’s website with a copy of the agenda and all supporting information no later than 48 hours immediately preceding the commission meeting for which that item has been scheduled. Copies of the agenda shall be available from the city clerk and one copy shall be posted at the designated posting board in the city hall for public viewing and made available on the city’s website. Pursuant to MCA 7-1-4135, the city commission designates as its official posting place the posting board in the lobby of city hall located at 121 North Rouse, Bozeman, Montana. B. The city manager shall prepare the commission regular meeting agenda and shall consult with the mayor in preparing the agenda. The mayor or any three commissioners may add to or remove an item from the agenda. The agenda shall be in substantially the following form: 1. Executive session (if required). 2. Pledge and moment of silence. 3. Changes to the agenda (if required). 21 Note changes requested by city staff. PROOFS Page 31 of 977 4. Public service announcement (if required). 5. Approval of minutes. 6. Consent items (consent items are those which staff considers no discussion is necessary, including resolutions. However, at the beginning of each meeting, any commissioner may request items be removed from the consent agenda for the purpose of discussion. 7. Public comment. 8. Special presentations (if required). 9. Action items. 10. FYI/discussion. 11. Adjournment. The order of the above may be adjusted by the presiding officer. (Ord. No. 1727, § 1(2.04.110), 12-3-2007; Ord. No. 1757, § 1(2.04.110), 2-23-2009; Ord. No. 1807, § 6(2.04.050), 5-9-2011) Sec. 2.02.130 060. Call to order. The mayor, or in the mayor’s absence, the deputy mayor, shall take the chair precisely at the hour appointed for the meeting and shall immediately call the commission to order. In the absence of the mayor or deputy mayor, the city clerk shall call the commission to order, whereupon a temporary presiding officer shall be elected by the members of the commission present. Upon the arrival of the mayor or deputy mayor, the temporary presiding officer shall relinquish the chair upon the conclusion of the agenda item immediately pending before the commission. The city clerk shall enter the names of those commissioners present in the minutes. (Ord. No. 1727, § 1(2.04.130), 12-3-2007; Ord. No. 1757, § 1(2.04.120), 2-23-2009; Ord. No. 1807, § 7(2.04.060), 5-9-2011) Sec. 2.02.040 070. Meetings. A. General/regular meetings. 1. The city commission shall hold a regular meetings on each of the first four Mondays of every month. The city commission may hold a regular meeting on the fifth Monday of the month. The commission shall meet in regular session from 6:00 p.m. to no later than 10:00 p.m. in the City Commission Room, City Hall, 121 North Rouse Avenue, or in an alternative location as duly noticed to the public. However, when the day affixed for any regular meeting of the commission falls upon a day designated by law as a legal or national holiday, such meeting may be scheduled at the same hour on the next succeeding day not a holiday or the meeting may be canceled by the commission. 2. The meeting may be extended beyond the time specified in subsection A.1 of this section by the mayor or a majority vote of the members of the commission should additional matters remain on the commission agenda. 3. Any meeting of the commission may be adjourned to a later date and time, provided that no adjournment shall be for a longer period than until the next regular or specially scheduled meeting. 4. The mayor or majority of the commission may cancel a regular meeting if no business is scheduled for that meeting. B. Public hearings. PROOFS Page 32 of 977 1. Public hearings are meetings of the commission required to be held as a public hearing pursuant to law. The provisions of subsection A of this section apply to public hearings. 2. Unless prohibited by law, a public hearing may be rescheduled or adjourned to a later date and time. C. Executive sessions. Executive sessions are meetings of the commission with the purpose to discuss litigation strategy, a matter of individual privacy, or other matters wherein a meeting may be closed pursuant to law and will be scheduled as needed. Although each executive session will commence as an open public meeting, executive sessions may be closed to the public pursuant to authority and limitations in MCA 2-3-201 et seq. An executive session may be called at any time during any meeting if authorized by law. D. Work or policy sessions. Work or policy sessions are meetings of the commission to review forthcoming issues of import to the city and programs of the city, receive progress reports on current programs or projects, view sites or community projects of interest, or receive other similar information from the city manager and staff. All discussions and conclusions thereon shall be informal and no final action may be taken, but the commission may give direction to staff regarding items to be scheduled for a future action. Work or policy sessions provide an informal setting for discussion of topics for which no formal action is immediately required. At the commission’s discretion, public comment may be received during the work or policy session. The commission work or policy sessions may be scheduled as needed and may be held during a regular meeting. The commission is not bound by Robert's Rules of Order during work or policy sessions. E. Optional concept reviews. The commission may, at the request of a landowner, developer or other interested party considering the future submittal of a land use development application, conduct a concept review. Concept review is an initial, informal exchange of ideas prior to formal submittal of a land use development application. The commission's decision on any subsequently submitted formal application will be based on staff findings, the applicable criteria, applicant presentation, evidence submitted and public testimony provided at a regular meeting or public hearing. A final decision regarding any item discussed during a concept review may not be based on information provided during the concept review. Formal public comment will be received during review of a formal application; however, the commission may, at its discretion, accept questions and written comment from the public during the concept reviews. The commission is not bound by Robert's Rules of Order during concept reviews. F. Optional post mortem reviews. Post mortem review is a review by the commission of a previous decision but is not a reconsideration of a previous item. Following action on any matter, the commission may request a post mortem review to be scheduled at a subsequent meeting to determine if revisions to code provisions or other procedural changes are needed to address concerns raised during consideration of the particular agenda item. The commission is not bound by Robert's Rules of Order during optional post mortem reviews. G. Special meetings. The mayor, any two members of the commission, or the city manager may call special meetings of the commission, upon at least 48 hours' notice to each member of the commission and give notice to the public by, at a minimum, posting an agenda on the city’s website, or personally served on each member or left at his usual place of residence. H. Emergency meetings. In the event of an emergency situation, such as a storm, fire, explosion, community disaster, insurrection, act of God, or other potential destruction or impairment of city property or business that affects the health and safety of the residents, employees or the functions of the city, a meeting may be convened by a majority of the commission directing the city manager to schedule a meeting without adhering to 48-hour time limit. The city clerk shall use reasonable efforts to inform the public of the emergency meeting. PROOFS Page 33 of 977 (Code 1982, § 2.04.040; Ord. No. 1100, § 5, 1982; Ord. No. 1537, § 3, 5-29-2001; Ord. No. 1654, § 2, 11-21- 2005; Ord. No. 1727, § 1(2.04.040), 12-3-2007; Ord. No. 1737, § 1, 1-28-2008; Ord. No. 1737, § 1, 1-28-2008; Ord. No. 1757, § 1(2.04.040), 2-23-2009; Ord. No. 1807, § 8(2.04.070), 5-9-2011) State law reference—Open meetings, MCA 2-3-201 et seq. Sec. 2.02.180 080. Order of presentation/public participation. A. The order of presentation in which items are presented to the commission shall be as follows: 1. The city manager shall present an agenda item to the commission. 2. The city staff may present a background report on the matter for discussion. Upon conclusion of a staff report, commissioners may ask questions of staff for the purposes of understanding and clarification. If the agenda item is a public hearing, the presiding officer will open the public hearing prior to staff presentation. 3. If applicable, comments from the applicant, or his agent, shall be heard by the commission. The applicant’s presentation/testimony is limited, subject to the discretion of the presiding officer, to ten minutes. 4. After being recognized by the presiding officer, a commissioner may direct questions to the staff or applicant. 5. Members of the audience or their agents may be invited to present testimony or evidence. To be recognized, each person desiring to give testimony or evidence shall step to the podium and, after being recognized, give their name and address for the record. The audience presentation/testimony is limited to three minutes per speaker. The presiding officer may lengthen or shorten the time allotted for public testimony. 6. After being recognized by the presiding officer, a commissioner may direct questions to any person so testifying for purposes of clarification. 7. Following public comment, staff shall be given the opportunity to comment on any testimony or other evidence. 8. Following staff comment, and if a public hearing, the applicant will be given the opportunity to rebut or comment on any testimony or other evidence. The applicant’s comments and rebuttal are limited, subject to the discretion of the presiding officer, to five minutes. 9. If a public hearing, following applicant rebuttal and any further questions, the presiding officer will close the hearing and bring the agenda item to the dais for discussion, motion and vote. 10. If a public hearing, after being recognized by the presiding officer, a commissioner may direct questions limited to the rebuttal testimony and evidence. 11. The city clerk shall enter into the record all correspondence that has been received but was not yet provided to the commission. 12. The commission may continue the discussion to a date certain, close discussion and vote on the matter, or close the discussion and continue the vote to a date certain. 13. The commission, upon the request of a commissioner who is to be absent from a meeting at which a public hearing on a particular item of interest is scheduled, may reschedule the public hearing until a full commission is present, unless precluded from doing so due to statutory time constraints. B. All testimony and evidence shall be directed to the presiding officer. No person, other than a commissioner and the person recognized as having the floor shall be permitted to PROOFS Page 34 of 977 enter into the discussion. No questions shall be asked of a commissioner except through the presiding officer. C. The commission may ask staff for its recommendation. D. If a public hearing, in the event the applicant does not appear at the scheduled time and place, unless the applicant has waived the applicant's appearance in writing, and which waiver has been accepted by the commission, or unless the matter is submitted as a consent item, the matter shall be continued to the next available regular meeting, public hearing date, or other date certain. E. For all public hearings involving land use and annexation decisions, the commission will wait a minimum of one week before making a decision whenever requested by a member of the commission, unless a decision is required due to a statute, ordinance or other law. F. Commissioners are urged to state the reasons for their decisions, particularly on land use issues. The record must reflect findings regarding legal criteria for all quasi-judicial decisions. G. Witnesses may be required to testify under oath. H. The commission shall not be bound by the strict rules of evidence and may exclude irrelevant, immaterial, incompetent or unduly repetitious testimony or evidence. I. The presiding officer shall rule on all questions relating to the admissibility of evidence with advice from the city attorney, which ruling may be overruled by a majority vote of the commission. J. A public hearing which has been formally closed for all public input may not be reopened and no additional evidence or testimony from the public shall be received or considered except as provided herein. If additional information is required from the public before a decision can be made, the commission, upon motion duly made, seconded and passed, may call for an additional public hearing which hearing shall be noticed as required by law, specifying date, time place and subject matter of hearing. This subsection does not preclude the commission, after the public hearing, from asking questions of staff, receiving additional evidence from staff or, after a hearing held on a preliminary plat, pursuant to MCA 76-3-101 et seq., from consulting the subdivider about conditions or other mitigation required of the subdivider. Upon decision by the presiding officer or upon a duly adopted motion of the commission to reopen the public hearing prior to close of the agenda item in which the hearing was held, the requirement to provide public notice does not apply; the public hearing may be reopened and the additional input provided prior to a final decision on the item. (Ord. No. 1727, § 1(2.04.180), 12-3-2007; Ord. No. 1757, § 1(2.04.170), 2-23-2009; Ord. No. 1807, § 9(2.04.080), 5-9-2011) Sec. 2.02.150 090. Quorum and voting. A quorum shall consist of three commissioners. If a quorum is not present, those in attendance shall be named and shall adjourn to a later time. The city clerk shall reduce motions to writing and, upon request, the city clerk shall read the motion prior to the vote. The affirmative vote of three commissioners shall be necessary to adopt or reject any motion, resolution or ordinance, or pass or fail any measure unless a greater number may be required by law. Upon every vote, the ayes and nays shall be called and recorded. A commissioner has an obligation to vote unless there is a conflict of interest. In the event of a tie vote a commissioner is required to vote after disclosing the conflict of interest pursuant to section 2.02.100.E. (Ord. No. 1727, § 1(2.04.150), 12-3-2007; Ord. No. 1757, § 1(2.04.140), 2-23-2009; Ord. No. 1807, § 10(2.04.090), 5-9-2011) PROOFS Page 35 of 977 Sec. 2.02.170 100. Rules of debate/reconsideration/conflict of interest. A. Every commissioner desiring to speak shall address the presiding officer, and, upon recognition by the presiding officer, shall confine discussion to the question under debate, avoiding all personalities and indecorous language. B. A commissioner, once recognized, shall not be interrupted when speaking unless the commissioner is to be called to order, or as herein otherwise provided. If a commissioner, while speaking, is called to order, the commissioner shall cease speaking until the question of order is determined, and, if in order, the commissioner shall be permitted to proceed. C. Order of rotation in matters of debate or discussion shall be at the discretion of the presiding officer. D. Reconsideration of previous commission action. A motion to reconsider any action taken by the commission must be made on the day such action was taken. It must be made either immediately during the same session, or at a recessed and reconvened session thereof. Such motion shall be made by one a commissioner of the prevailing side, but may be seconded by any commissioner, and may be made at any time and have precedence over all other motions or while a commissioner has the floor. It shall be debatable. Nothing herein shall be construed to prevent any commissioner from making or remaking the same or any other motion at a subsequent meeting of the commission, but the matter must be duly scheduled as an agenda item. E. Conflict of interest. A commissioner may rely upon the advice of the city attorney as to whether the commissioner has a conflict of interest pursuant to law. If the commissioner is advised there is a conflict of interest, the commissioner shall recuse himself or herself, step off the dais, and refrain from discussion and vote except when the commissioner’s participation is necessary to obtain a quorum or otherwise enable the commission to act. In such a case, the commissioner shall disclose the interest creating the appearance of impropriety and comply with the disclosure requirements of MCA 2-2-101 et seq., prior to performing the official act. F. After a motion, duly made and seconded, by the commission, no person shall address the commission without first securing the permission of the presiding officer. (Ord. No. 1727, § 1(2.04.170), 12-3-2007; Ord. No. 1757, § 1(2.04.160), 2-23-2009; Ord. No. 1807, § 11(2.04.100), 5-9-2011) Sec. 2.02.120 110. Open meetings and email. A. Except for properly called executive sessions as permitted by state law, all meetings of the city commission shall be open to the public and media, freely subject to recording by radio, television and photography at any time, provided that such arrangements do not interfere with the orderly conduct of the meetings. B. A majority of the commission shall not conduct synchronized email discussions involving a matter over which the commission has supervision, control, jurisdiction, or advisory power. Synchronized email discussions are email exchanges among three or more commissioners within minutes of each other that create the quality of simultaneity similar to instant messaging or chat room discussions. Such discussions are characterized as an active exchange of information rather than the passive receipt of information. An example of synchronized email discussion would be three commissioners sitting at their computers and instantly exchanging emails concerning city business, whereas a passive receipt of information is where a commissioner receives an email and responds in the normal course of time similar to responding by letter received in the mail. The commission shall not view emails or other electronic communication mechanisms concerning any matter on the agenda during a city commission meeting unless the submission is part of a specifically approved and adopted electronic public testimony program. Electronic communication mechanisms include text messaging or any other emerging technology that violates the spirit of PROOFS Page 36 of 977 open meeting laws. This does not preclude viewing emails or electronic communication mechanisms that were received prior to the commission meeting. Emails received by commissioners concerning an agenda item shall be forwarded to the city clerk and retained in accordance with the city’s retention policy. (Ord. No. 1727, § 1(2.04.120), 12-3-2007; Ord. No. 1757, § 1(2.04.110), 2-23-2009; Ord. No. 1807, § 12(2.04.110), 5-9-2011) Sec. 2.02.190 120. Decorum. A. While the commission is in a session, the commissioners must preserve order and decorum, and a commissioner shall neither, by conversation or otherwise, delay or interrupt the proceedings or the peace of the commission nor disturb any member while speaking or refuse to obey the orders of the commission or its presiding officer. B. Any person making personal, impertinent or slanderous remarks or who shall become boisterous while addressing the commission may be barred from further audience with the commission by the presiding officer, unless permission to continue be granted by a majority vote of the commission. C. The commission shall not debate, in a heated or argumentative manner, with a member of the public presenting testimony during a meeting. D. Speakers shall only address the agenda item before the commission. Any person speaking on an agenda item not before the commission may be called out of order. (Ord. No. 1727, § 1(2.04.190), 12-3-2007; Ord. No. 1757, § 1(2.04.180), 2-23-2009; Ord. No. 1807, § 13(2.04.120), 5-9-2011) Sec. 2.02.160 130. Recording of meetings and minutes; televising of meetings. A. Minutes of all meetings shall be recorded. All meetings of the commission shall be electronically recorded and the recording shall constitute the official record of the commission meeting. The city clerk shall prepare a summary of all meetings from the recording to be known as the “minutes” which shall be maintained by the clerk and approved by the commission. It shall not be necessary to formally read the minutes prior to approval. Such minutes may be revised by the city clerk to correct spelling, numbering and other technical defects. Prior to approval, any commissioner may, through the mayor or the clerk, request the privilege of amending or correcting the minutes to accurately reflect the substance of the prior meeting. If objection is made by any commissioner to such amendment or correction, a majority vote of the commission shall be necessary for adoption of the correction or amendment. The audio or video recording may not be amended. B. Executive session minutes. 1. Executive sessions shall be recorded and minutes prepared by the city clerk. The commission shall approve the minutes of an executive session in open session; provided, however, that any discussion concerning the contents of the minutes, prior to approval, shall be conducted in executive session. The city clerk will distribute the draft executive session minutes to the commission in a manner that ensures and retains confidentiality. 2. Following approval of executive session minutes by the commission, the city clerk shall forward all executive session minutes to the city attorney. The city attorney shall review these minutes, determining which, if any, can be released to the public in whole or in part, and advise the city clerk. If the city attorney determines any minutes from an executive session may be released, the city clerk shall then present a resolution to the commission for adoption releasing the executive session minutes, PROOFS Page 37 of 977 in whole or in part. Those executive session minutes to be released shall be designated by subject matter. Upon adoption of the resolution, those minutes or portions of minutes approved for release shall be available for public inspection. 3. If a member of the public requests from the city clerk access to executive session minutes not yet released to the public as set forth above, the requestor shall submit a public records request to the city clerk. The city clerk shall consult with the city attorney on the subject matter as requested. The city attorney shall advise the city clerk if the minutes can be released in complete or redacted form. If approved for release by the city attorney, a resolution releasing either a complete or redacted minutes shall be presented to the city commission for adoption at their next regularly scheduled meeting. Upon adoption of the resolution by the city commission, the minutes shall be released to the public as authorized. C. Televising and broadcasting of meetings. Unless the city commission determines televising or webcasting of a meeting is impracticable, all meetings of the city commission shall be televised and webcast. Meetings of the commission closed to the public pursuant to law shall not be televised or webcast. (Ord. No. 1727, § 1(2.04.160), 12-3-2007; Ord. No. 1757, § 1(2.04.150), 2-23-2009; Ord. No. 1807, § 14(2.04.130), 5-9-2011) Sec. 2.02.090 140. Ordinances and resolutions; requirements. A. Each proposed ordinance or resolution shall be introduced in writing and shall not contain more than one comprehensive subject, which shall be clearly stated in its title, except ordinances for the codification and revision of ordinances and general appropriation ordinances which may contain the various subjects and accounts for which monies are to be appropriated. An ordinance must be adopted at two meetings of the governing body commission not less than 12 days apart. Every ordinance or resolution passed by the commission shall be filed immediately with the city clerk. The enacting clause of all ordinances passed by the city commission shall be: "Be it ordained by the City Commission of the City of Bozeman." B. All ordinances shall be in effect from, and after, 30 days from the date of their passage by the commission, except as otherwise provided by law. All resolutions are immediately effective unless a delayed effective date is specified in the resolution. C. The commission may, by an affirmative vote of four-fifths of its members, pass emergency measures to take effect at the time indicated therein. An emergency measure is an ordinance or resolution for the immediate preservation of the public peace, property, health, or safety, or providing for the usual daily operation of a municipal department, in which the emergency is set forth and defined in a preamble thereto. D. Every ordinance or resolution passed by the commission shall be signed by the mayor or two members, attested and filed by the city clerk. E. After a resolution is adopted, an ordinance is provisionally adopted, or an ordinance is finally adopted, the city clerk shall make a copy available to the public through the city’s website. For provisional and final adoption of ordinances, the city clerk shall publish a notice of passage in a newspaper of general circulation. (Code 1982, § 2.04.090; Ord. No. 1100, § 6, 1982; Ord. No. 1381, § 1, 1994; Ord. No. 1537, § 6, 5-29-2001; Ord. No. 1727, § 1(2.04.090), 12-3-2007; Ord. No. 1757, § 1(2.04.090), 2-23-2009; Ord. No. 1807, § 15(2.04.140), 5- 9-2011) PROOFS Page 38 of 977 Sec. 2.02.070 150. Salaries for mayor and commissioners. The salary of each commissioner shall be established by ordinance, and the salary of the commissioner acting as mayor shall be 1 1/2 times that of the other commissioners. (Code 1982, § 2.04.070; Ord. No. 1075, §§ 1, 2, 1981; Ord. No. 1093, §§ 1, 2, 1982; Ord. No. 1100, § 4, 1982; Ord. No. 1569, §§ 1--3, 8-12-2002; Ord. No. 1727, § 1(2.04.070), 12-3-2007; Ord. No. 1757, § 1(2.04.070), 2-23- 2009; Ord. No. 1807, § 16(2.04.150), 5-9-2011) Sec. 2.02.200 160. Boards, commissions, agencies and committees. A. In addition to boards, agencies, committees, and commissions established by law, the commission may create boards, commissions, agencies, or committees as determined necessary for the conduct of the city’s business. B. All boards, commissions, agencies, or committees of the city will be established by the commission and members appointed following a public solicitation posted not less than twice annually. Between public solicitations for members, appointments may be made to fill unexpected vacancies or vacancies not filled through the last round of advertisements from those applications on file as of the date of appointment. Subcommittees of existing boards, commissions or committees may be appointed by the city commission without the necessity of public solicitation. Members shall be appointed by a majority of the commission for all appointments made by the city commission. In the case of statutorily authorized mayoral appointments, the mayor shall seek the concurrence of at least two other commissioners. C. The authority to vote despite a conflict included in section 2.02.100.E shall not apply to any appointed board, commission, agency, or committee. D. All quasi-judicial boards shall have governing rules of procedure to be approved by the commission, and said rules shall be in substantial conformance with law and this article. (Ord. No. 1727, § 1(2.04.200), 12-3-2007; Ord. No. 1757, § 1(2.04.190), 2-23-2009; Ord. No. 1807, § 17(2.04.160), 5-9-2011) Sec. 2.02.050. Voting.22 Three commissioners shall constitute a quorum, and the affirmative vote of three commissioners shall be necessary to adopt or reject any motion, resolution, or ordinance, or pass any measure, unless a greater number is provided for by law. Upon every vote, the ayes and nays shall be called and recorded. (Code 1982, § 2.04.050; Ord. No. 1100, § 3, 1982; Ord. No. 1537, § 4, 5-29-2001; Ord. No. 1727, § 1(2.04.050), 12-3-2007; Ord. No. 1757, § 1(2.04.050), 2-23-2009) Sec. 2.02.080. Powers and duties.23 The commission shall constitute the governing body, with power to make and pass all bylaws, ordinances, orders, and resolutions not repugnant to the Constitution of the United States or of the State of Montana, to the Charter, or to the provisions of title 7 of Montana Code Annotated (MCA 7-1-101 et seq.), necessary for the government or management of the affairs of the city, for execution of the powers vested in the corporate, and to carry into effect the provisions of title 7 of Montana Code Annotated (MCA 7-1-101 et seq.), and to appoint a chief administrative officer to be known as the "city manager," and to exercise all the powers conferred on it by title 7, chapter 3, 22 This section has been struck through as it did not appear to be included in Ordinance No. 1807. 23 This section has been struck through as it did not appear to be included in Ordinance No. 1807. PROOFS Page 39 of 977 part 7, of Montana Code Annotated (MCA 7-3-701 et seq.), as amended24, and shall have all the powers conferred by law upon city councils insofar as the same is not inconsistent with said part. (Code 1982, § 2.04.080; Ord. No. 1537, § 5, 5-29-2001; Ord. No. 1727, § 1(2.04.080), 12-3-2007; Ord. No. 1757, § 1(2.04.080), 2-23-2009) Sec. 2.02.140. Listing of attendance.25 The city clerk shall enter the names of those commissioners present in the minutes. (Ord. No. 1727, § 1(2.04.140), 12-3-2007; Ord. No. 1757, § 1(2.04.130), 2-23-2009) ARTICLE 3. OFFICERS AND EMPLOYEES* *State law reference—Officers and employees, MCA 7-4-101 et seq. DIVISION 1. GENERALLY Secs. 2.03.010--2.03.150. Reserved. DIVISION 2. CITY MANAGER Sec. 2.03.160. Appointment; powers and duties.26 A. The commission shall appoint a city manager, who shall be the administrative head of the city government and be responsible for the efficient administration of all its departments. The city manager shall hold his office at the will of the commission. B. The city manager shall have the powers and duties conferred by the Charter and law.of the city manager shall be to: __ Enforce laws, ordinances and resolutions; __ Perform the duties required of him by law, ordinance or resolution; __ Administer the affairs of the local government; __ Direct, establish, organize, supervise, and administer all departments, agencies and offices of the local government unit except as otherwise provided by law or ordinance; __ Carry out policies established by the commission; __ Prepare the commission agenda; __ Recommend measures to the commission; __ Report to the commission on the affairs and financial condition of the local government; __ Execute bonds, notes, contracts and written obligations of the commission, subject to the approval of the commission; __ Report to the commission as the commission may require; __ Attend commission meetings and may take part in the discussion, but may not vote; __ Prepare and present the budget to the commission for its approval and execute the 24 The words “as amended” can be deleted throughout if you add my suggested definition for MCA. Ok. 25 This section has been struck through as it did not appear to be included in Ordinance No. 1807. 26 Note changes requested by city staff. PROOFS Page 40 of 977 budget adopted by the commission; __ Appoint suspend and remove all employees of the local government except as otherwise provided by law or ordinance; __ Appoint members of temporary advisory committees established by the manager." C. The city manager is authorized to promulgate administrative orders within the areas of powers and duties conferred by the Charter and this Code. (Code 1982, § 2.08.010; Ord. No. 1537, § 7, 5-29-2001) Sec. 2.03.170. Compensation; oath of office--bond.27 The city manager shall receive such salary as may be fixed by the commission. Before entering upon the duties of his office, he the city manager shall take and subscribe to the oath of office, and he shall give an official bond in such sum as may be fixed by the commission, conditioned for the faithful performance of the duties of his office, with sufficient surety to be approved by the commission, and such oath and bond shall be filed with the clerk thereof." (Code 1982, § 2.08.020; Ord. No. 1537, § 8, 5-29-2001) Sec. 2.03.180. Assistant city manager. The city manager shall appoint an assistant city manager who shall serve as acting city manager in the absence of the city manager. The assistant city manager shall perform such other duties by direction of the city manager or as required by law. (Ord. No. 1643, § 1, 7-18-2005) Secs. 2.03.190--2.03.300. Reserved. DIVISION 3. CITY CLERK* *State law reference—Office of municipal clerk, MCA 7-4-4501 et seq. Sec. 2.03.310. Appointment; powers and duties. A. The city clerk shall be appointed by the city manager and shall serve until removed by the city manager, or until a successor is appointed and qualifies. B. Powers and duties of the city clerk shall include: 1. Attend all meetings of the commission and record and sign the proceedings thereof. 2. Keep records of the commission. Maintain and preserve the minutes and records of the proceedings of the commission in accordance with state statutes, ordinances and resolutions. 3. Record ordinances and resolutions. Enter into a book all ordinances and resolutions passed and adopted by the commission and be the legal custodian of the same.28 4. Maintain all contracts passed, adopted or entered into by the city. 5. Countersign and cause to be posted or published, as provided by state statute, all ordinances or resolutions adopted by the commission. 6. Publish all legal notices as required by state statute or ordinance. 7. Take and administer oaths. 27 Note changes requested by city staff. 28 Note change requested by city staff. PROOFS Page 41 of 977 8. Make and certify copies of all records, books and papers in the possession of the office. 9. Make and keep a complete index of the minutes, ordinances and resolutions on file in the office. 10. Post meeting notices. Cause notices of special meetings of the city commission to be posted in accordance with state statutes, ordinances or resolutions. 11. Maintain the city seal. Have custody of the seal of the city and affix it to such documents as may be required and authorized pursuant to law. 12. Records manager. Serve as the city's records manager, ensuring that all records of the city are retained and maintained in accordance with state statutes and adopted records retention schedules. 13. Perform such other duties as may be required by ordinance or resolution or by order of the city manager. C. The city clerk shall receive such salary as may be fixed by the city manager. (Ord. No. 1632, § 1, 4-4-2005) Sec. 2.32.050 assistance by clerk of the commission--oath and bond.2.03.320. Oath and bond29. Before entering upon the duties of the office, the city clerk shall take and subscribe to the oath of office, and give an official bond which bond shall cover the duties of the city clerk. (Code 1982, § 2.32.050; Ord. No. 1537, § 13, 5-29-2001; Ord. No. 1632, § 2, 4-4-2005) Secs. 2.03.330--2.03.450. Reserved. DIVISION 4. CODE OF ETHICS* *State law reference—Code of ethics, MCA 2-2-101 et seq. Sec. 2.03.460. Declaration of policy. The proper operation of the city government requires that public officials and employees be independent, impartial, accountable, and responsible; that governmental policies and decisions be made in the proper channels of the governmental structure; that public office and employment not be used for personal gain nor be used to harass, intimidate, or retaliate against citizens and other employees and officials; and that the public have confidence in the integrity of its government. The purpose of this code of ethics is to set forth standards of ethical conduct, to assist public officials and employees in establishing guidelines for their conduct, to foster the development and maintenance of a tradition of responsible, accountable and effective public service, and to prohibit conflict between public duty and private interest. Nothing herein shall be construed to relieve any employee or official of the responsibilities set forth in 30MCA 2-2-104, 2-2-105, 2-2-121, 2-2-131, and 7-5-4109 of the Montana Code Annotated. Where a provision or interpretation of this division conflicts with a provision of the Montana Code Annotated, the more stringent provision or interpretation that requires a greater level of public disclosure shall apply. (Code 1982, § 2.01.010; Ord. No. 1240, § 1, 1987; Ord. No. 1342, § 1, 1992; Ord. No. 1537, § 1, 5-29-2001; Ord. No. 1726, § 2(2.01.010), 11-26-2007; Ord. No. 1759, § 1(2.01.010), 4-20-2009; Ord. No. 1775, § 2(2.01.010), 12-28-2009) 29 Note change requested by city staff. 30 Note the uniform method of citation so that we can search and create a table for all state cites in the Code. No further comment or notation will be made. Ok. PROOFS Page 42 of 977 Sec. 2.03.470. Definitions. A. As used in this division, the following terms shall have the following meanings, unless the context clearly indicates that a different meaning is intended: 1. "Agency" means the city commission and all other agencies, board, committees, departments, and offices of the city, without exception. 2. "Board" means the board of ethics. __ "City" means the "City of Bozeman", Montana.31 3. "Confidential information" means any information which is not available to the general public and which is obtained only by reason of an official's or employee's position. 4. "Direct advantage" means a gain or benefit to the former public servant; the public servant's present principal or employer. 5. "Employee" means all individuals employed by the city and its agencies, but does not include independent contractors hired by the city, city commissioners, or any municipal judge. 6. "Financial interest" means any ownership interest, contractual relationship, business relationship, or other interest which will result in a monetary or other material benefit to an official or employee, either tangibly or intangibly, which has a value of more than $15.00, other than the official or employee's duly authorized salary or compensation for his the official or employee's services to the city, and which interest is not common to the interest of all other citizens of the city. The following financial interest shall be imputed to be those of an official or an employee of the city: that of a spouse or child of an official or employee; that of any prime contractor or subcontractor of the city, in which the official or employee or any member of the official or employee's immediate family has any direct or indirect interest as the proprietor, by ownership of stock or partnership interest. 7. "Immediate family" means spouse and children. 8. Improper governmental action. a. "Improper governmental action" includes any action taken by an official or employee during the performance of the officer's or employee's duties, regardless of whether the action is within the scope of the employee's employment or the officer's duties, and that: (1) Violates the standards of conduct listed in section 2.03.490 or 2.03.510; (2) Violates the standards prescribed by title 2, chapter 2, of Montana Code Annotated (MCA 2-2-101 et seq.); (3) Is intended to harass, intimidate, or retaliate against any other employee, official, or any member of the public for the conduct protected under this division or state or federal law; (4) Violates a fiduciary duty to the city or its citizens; or (5) Creates a substantial or specific danger to the public's health or 31 Definitions and rules of construction covered in chapter 1 of the Code will be deleted throughout without further comment. Ok. PROOFS Page 43 of 977 safety. b. Improper governmental action excludes personnel actions, including, but not limited to: employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, reprimands, violations of collective bargaining or civil service laws, or alleged violations of agreements with labor organizations under collective bargaining. c. A properly authorized city program or budgetary expenditure does not become an improper governmental action because a reporting person dissents from or disagrees with the city policy or decision. 9. "Officials" means all officers and members of the city's agencies, whether elected or appointed, whether paid or unpaid, whether permanent, temporary, or alternate, and that are not employees. 10. "Personal interest" means any interest in the matter which would affect the action of the official or employee other than a financial interest, and other than an interest because of membership in, or affiliation with, but not employment by a social, fraternal, charitable, service, educational, religious, governmental, health service, philanthropic, cultural, or similar nonprofit institution or organization. 11. "Public servant" means officials, members of the parking commission and library board and employees as defined in this section. 12. "Transaction" means the offer of, or the sale, purchase, or furnishing of, any real or personal property or services, by or to any person or entity directly or indirectly, as vendor or vendee, prime contractor, subcontractor, or otherwise, for the use and benefit of the city or of such other person or entity for a valuable consideration. (Code 1982, § 2.01.020; Ord. No. 1240, § 2, 1987; Ord. No. 1342, § 2, 1992; Ord. No. 1537, § 2, 5-29-2001; Ord. No. 1726, § 2(2.01.020), 11-26-2007; Ord. No. 1759, § 1(2.01.020), 4-20-2009; Ord. No. 1775, § 3(2.01.020), 12-28-2009) Sec. 2.03.480. Persons covered. All city officials and employees shall be bound by this division. All officials, including members of the parking commission and library board, and all employees shall be bound by this division. Upon initial employment and annually thereafter each employee, official and member of every board or committee shall verify that such employee, official and board or committee member has not and will not knowingly violate any provision of this division or the rules, standards of conduct or rules of ethics established by state law. (Code 1982, § 2.01.030; Ord. No. 1240, § 3, 1987; Ord. No. 1726, § 2(2.01.030), 11-26-2007; Ord. No. 1759, § 1(2.01.030), 4-20-2009; Ord. No. 1775, § 4(2.01.030), 12-28-2009) Sec. 2.03.490. Standards of conduct. A. Officials and employees have an obligation to act morally and honestly in discharging their responsibilities. B. Officials and employees shall conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintaining high standards of conduct. C. Each official or employee serving on a multimember agency is expected to devote the time and effort necessary to the successful functioning of such agency. PROOFS Page 44 of 977 D. No official or employee shall improperly use, directly or indirectly, the official or employee's city position to secure any financial interest or personal interest for said official employee, or others. E. No official or employee shall, for any reason, use or attempt to use his the official or employee's position to improperly influence any other official or employee in the performance of such official or employee's official duties. F. No employee shall act in a private capacity on matters that they are directly responsible for as an employee. G. No official shall act in a private capacity on matters acted upon as an official. H. All officials and employees shall refrain from improper governmental action as defined in this division. I. No official or employee shall retaliate against any employee, official, or member of the public regarding an allegation of improper governmental action because that employee, official, or member of the public proceeded or is proceeding in good faith under this division including acting under section 2.03.580.D. (Code 1982, § 2.01.040; Ord. No. 1240, § 4, 1987; Ord. No. 1342, § 3, 1992; Ord. No. 1726, § 2(2.01.040), 11- 26-2007;Ord. No. 1759, § 1(2.01.040), 4-20-2009) Ord. No. 1775, § 5(2.01.040), 12-28-2009) Sec. 2.03.500. Use of city resources. No official or employee shall use, or permit the use of, city-owned vehicles, equipment, material, or city personnel for personal use of the employee or official or anyone else or to be used in any manner prohibited by state statutes or city ordinance. No city automobile shall be used by a city employee or official going to or from home, except when such use is for the benefit of the city, as in the case of an employee on call outside of the employee's working hours. (Code 1982, § 2.01.050; Ord. No. 1240, § 5, 1987; Ord. No. 1726, § 2(2.01.050), 11-26-2007) Sec. 2.03.510. Treatment of the public. City officials and employees represent the city government to the public. In their contact with the public, officials and employees must bear in mind their role as public servants. Each member of the public shall be treated courteously, impartially, and fairly. All employees and officials shall, in the exercise of their official duties, refrain from taking any action, making of any statement, or authoring any document that is intended to-harass, intimidate, or retaliate against any member of the public. (Code 1982, § 2.01.060; Ord. No. 1240, § 6, 1987; Ord. No. 1726, § 2(2.01.060), 11-26-2007; Ord. No. 1775, § 6(2.01.060), 12-28-2009) Sec. 2.03.520. Conflict of interest. A. No official or employee shall engage in any employment or business which conflicts with the proper discharge of such official or employee's official duties. B. No official or employee shall have a financial or personal interest, tangibly or intangibly, in any transaction with the city as to which he such official or employee has the power to take or influence official action unless full public disclosure is made. If an official or employee has any tangible or intangible financial or personal interest in the outcome of any matter coming before the agency of which he the official or employee is a member or by which he the official or employee is employed, such official or employee shall publicly disclose on the record of the agency, or to his a superior or other appropriate authority, the existence of such financial or personal PROOFS Page 45 of 977 interest. An official or employee having such a financial or personal interest shall not engage in deliberations concerning the matter, shall disqualify himself/herself32 from acting on the matter, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. C. No employee, whether paid or unpaid, shall represent or appear on behalf of any individual or entity before any agency of the city, or take any appellate proceedings from any action of such agency, either personally or through an associate or partner. D. No official, whether paid or unpaid, shall represent or appear on behalf of any individual or entity in any action or proceeding of concern to the agency on which that official serves, either before that agency or any other agency of the city, or before the city commission, or take any appellate proceedings from any action of such agency or the commission. Such representation may be made by an official's associate or partner, provided no reference to the participation of the involved official is made except for certification or other required identification on prepared documents. The involved official shall not engage in deliberations concerning a matter represented by an associate or partner, shall disqualify himself/herself33 from acting on the matter, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. E. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising their legal rights as to their own personal interests in a matter pending before the city or any of its agencies, or to prohibit an official or employee from testifying as a witness in any administrative or judicial proceeding. However, no official or employee who represents their own personal interest before an agency of which they are a member, or a member of an agency to which the matter may be appealed, shall participate in the decision of that agency or the appellate agency. (Code 1982, § 2.01.070; Ord. No. 1240, § 7, 1987; Ord. No. 1342, § 4, 1992; Ord. No. 1726, § 2(2.01.070), 11- 26-2007) Sec. 2.03.530. Confidential information. A. No official or employee shall, without legal authority, disclose confidential information concerning the personnel, property, government, or affairs of the city. B. No official or employee shall use confidential information to advance such official or employee's own financial or personal interest or the financial or personal interests of any other person. C. Nothing in this section shall be interpreted as prohibiting the disclosure of information required by law to be disclosed. (Code 1982, § 2.01.080; Ord. No. 1240, § 8, 1987; Ord. No. 1726, § 2(2.01.080), 11-26-2007) Sec. 2.03.540. Gifts, gratuities and favors. No official or employee shall accept a gift, gratuity, or favor from any person or entity, except as authorized by law. (Code 1982, § 2.01.090; Ord. No. 1240, § 9, 1987; Ord. No. 1726, § 2(2.01.090), 11-26-2007) 32 Unable to reword this language, so we have added "/herself" in order to make it gender neutral. 33 Unable to reword this language, so we have added "/herself" in order to make it gender neutral. PROOFS Page 46 of 977 Sec. 2.03.550. Financial disclosure statement. A. The ethics board shall prepare for approval by the city commission a financial disclosure statement form, and recommendations for filing deadlines, procedures, and who must file consistent with the following: 1. The director of finance and the personnel human resources director shall certify to the city clerk a list, current as of the previous January 1, of the names and mailing addresses of persons who are required to file a financial statement in the current year. 2. The financial statement must include the following information: a. The name and address of the public servant and describe any current employment in addition to employment with the city; b. Each present or past employing entity from which benefits, including retirement benefits, are currently received by the individual; c. Each business, firm, corporation, partnership or other business or professional entity or trust in which the individual holds an equity interest of ten percent or more of the entity; d. Each entity not listed under subsection 2.a. through c. in which the individual is an officer, director or registered agent, regardless of whether or not the entity is engaged for profit; and e. All real property, other than a personal residence, in which the individual holds an equity interest of ten percent or more of the real property. Real property may be described by general description such as street address or highway location. 3. Who must file financial statements. Financial statements must be filed by the members of the city commission, the city manager, department heads and other major financial decision makers which may include members of the library board and parking commission. 4. Each department annually shall develop and then review a list of vendors and service providers of that department who provide through contract, purchase order or otherwise, services or materials greater than $2,500.00 each month or more than $10,000.00 per year. Each member of that department receives these services or materials must disclose if such member has an economic relationship with that vendor. If the decision maker has a substantial economic relationship with that vendor, that decision maker may not make decisions regarding that vendor. For the purposes of this section, substantial economic relationship is that amount of interest in the organization, compensation including all benefits or other valuable consideration exceeding $10,000.00. (Ord. No. 1726, § 2(2.01.100), 11-26-2007; Ord. No. 1759, § 1(2.01.100), 4-20-2009) Sec. 2.03.560. Post employment activities. A. No former public servant: 1. May, during the 12 months following the date on which the former public servant ceases service to the city, without complying with the provisions of section 2.03.570, make any formal or informal appearance before, or negotiate with any decision maker on any matter which was under the public servant's direct responsibility as a public servant; PROOFS Page 47 of 977 2. May, for compensation, without complying with the provisions of section 2.03.570 within 12 months after termination of public service act on behalf of any party other than the city in connection with any matter in which the former public servant participated personally and substantially as a public servant; 3. Shall use or continue to use any former official city title, including use on business cards or stationery, following termination of employment with the city, except that such use is not prohibited if the public servant indicates that the employment with the city was former to current employment. B. Upon initial employment and annually thereafter each employee, public official and member of any board or committee shall verify that such employee, public official and board or committee member has not and will not knowingly violate any provision of this section or the rules, standards of conduct or rules of ethics established by state law. (Ord. No. 1726, § 2(2.01.110), 11-26-2007; Ord. No. 1759, § 1(2.01.110), 4-20-2009) Sec. 2.03.570. Public notice required. During the first 12 months following the date on which the former public servant ceases service to the city, any former public servant intending to make any formal or informal appearance before or negotiate with any decision maker, shall file with the clerk of the city commission and with the office of the city attorney a public notice of the former public servant's desire to negotiate, or appear informally or formally before a decision maker. Such written disclosure shall state in substance the purpose for which the former public servant wishes to appear or negotiate with the decision maker, the reason for such appearance or negotiation and a disclosure of all offices or employment held by the former public servant during the last 12 months of service to the city. Upon filing such written disclosure, the former public servant is not prohibited from the post employment activities proscribed in section 2.03.560.A.1 and 2. (Ord. No. 1759, § 1(2.01.111), 4-20-2009) Sec. 2.03.580. Board of ethics. A. There is created a board of ethics consisting of three members who shall serve without compensation unless the governing body city commission provides otherwise. Members of the board of ethics shall not be elected officials of the city, full-time appointed city officials whether exempt or nonexempt, or city employees, nor shall they be currently serving on any other city board or commission. B. Members of the board shall be residents of the city. C. Board members shall be appointed by the governing body city commission. An appointment to fill a vacancy shall be made by the appointing authority who appointed the member who formerly held the position which is vacant. D. The board shall select its own presiding officer from among its members. E. Board members shall serve staggered terms of two years. A member shall hold office until a member's successor is appointed. At initial appointment of the members of the board, one of the initial members shall be appointed for a term of three years and thereafter for a term of one year. F. The governing body city commission shall provide such staff support for the board as the governing body city commission determines to be necessary for the board to fulfill its duties. The city attorney is designated to be the legal advisor for the board, except that the city attorney is not authorized to represent the board in any legal action if doing so would create a conflict which would prevent the city attorney from also representing the mayor, the city manager, or the governing body city commission. The city clerk shall serve as recording secretary to the board and PROOFS Page 48 of 977 shall provide such administrative services to the board as may be necessary. Neither the city attorney nor the city clerk shall be eligible for appointment as board members. (Ord. No. 1726, § 2(2.01.120), 11-26-2007; Ord. No. 1759, § 1(2.01.120), 4-20-2009; Ord. No. 1775, § 7(2.01.120), 12-28-2009) Sec. 2.03.590. Reporting improper governmental action/rights/limitations/protected conduct. A. General. 1. The provisions of this section are intended to work in harmony with the City of Bozeman Employee Handbook and provide remedies in addition to those listed in the employee handbook. Under no circumstances shall the provisions of this division be taken as authorization for any official or member of the board of ethics to take or order disciplinary action be taken against a city employee for whom that official does not have authority to discipline or take action against pursuant to the city Charter or law. 2. Nothing herein shall be deemed to reduce or interfere with the rights of an employee, official, or member of the public under state or federal law regarding actions that may constitute an improper governmental action. B. Right. Every city employee, official, or member of the public shall have the right to report, in good faith and in accordance with this division, to a city official, employee, another government official, or member of the board of ethics pursuant to the procedures of this division, or to any member of the public, information concerning improper governmental action. C. Limitations. 1. This section does not authorize a city employee, official, or member of the public to report information that is subject to an applicable privilege against disclosure at law, unless waived, or to make a disclosure where prohibited by law. The purpose of this section is to protect and encourage employees, officials, and members of the public who know or in good faith believe improper governmental action has occurred to report those actions in good faith and in accordance with this division. 2. An employee or official reporting of the employee or official's own improper action does not grant the employee or official immunity from discipline (including but not limited to termination or removal from office) insofar as the employee or official's improper action would be cause for discipline or removal from office. 3. This section does not grant an employee or official immunity from discipline (including but not limited to termination or removal from office) insofar as the employee's or official's reporting of alleged improper governmental action is found to have not been made in good faith or is found to have been made in an attempt to harass, intimidate or retaliate against the person who is the subject of the original allegation of improper governmental action. D. Employee/official protection and protected conduct. The following conduct by employees, an official, or a member of the public is protected under this section if carried out in good faith: 1. Reporting sexual harassment or workplace violence pursuant to the city's policies; 2. Reporting any violations of title 2, chapter 2, of Montana Code Annotated, (MCA Standards of Conduct (MCA 2-2-101 et seq.) or title 49, of Montana Code Annotated, Human Rights (MCA 49-1-101 et seq.); 3. Reporting any violation of the state's or city's criminal laws; PROOFS Page 49 of 977 4. Reporting violations of an employee's or official's fiduciary duties; 5. Reporting any other improper governmental action as defined in this division; 6. Cooperating in an investigation under this division, the city Charter, the city's personnel policies, title 49, MCA, or federal law, conducted by a duly authorized city employee or official or a duly authorized agent of the state or federal government; or 7. Testifying in proceedings or prosecution arising out of an improper governmental action. (Ord. No. 1775, § 7(2.01.120), 12-28-2009) Sec. 2.03.600. Duties and powers of the board. A. The board shall, in addition to its other duties: 1. Adopt written rules governing its procedures and providing for the holding of regular and special meetings, which rules shall be subject to the approval of the governing body city commission; a copy of the rules shall be filed with the city clerk; and 2. Administer oaths; 3. Conduct hearings as needed to hear and decide specific cases in which a violation of this division or a violation of title 2, chapter 2, part 1, 100 of Montana Code Annotated (MCA 2-2-101 et seq.) is alleged, whether such cases arise from a complaint or are brought on the board's own motion; and 4. No later than December of each year, submit an annual report to the governing body city commission concerning its action in the preceding year; the report shall contain: a. A summary of its decisions and opinions, both open and confidential; the board shall make any alterations in the summaries necessary to prevent disclosure of any confidential information pertaining to any individual or to any organization if the disclosure could lead to the disclosure of the identity of a person who is entitled to confidentiality; and b. Recommend any legislative or administrative actions regarding the city's policies and practices which the board believes would or could enhance the ethical environment in which public servants work; and 5. Establish a process for systematically and regularly evaluating all significant aspects of the administration and implementation of this division, which shall include an annual review of the full scope of operations of the board and its procedures, and which shall ensure that the both the public and all public servants are provided a reasonable opportunity, and are encouraged to participate in the process; and 6. Prescribe and make available forms for use under this division; and 7. When it deems it appropriate, request the city attorney for assistance in compelling the production of documents and witnesses to assist the board in the conduct of any investigation; 8. When circumstances make it necessary to do so, retain outside legal counsel and other experts as needed after solicitation of recommendations from the city attorney (unless the need to retain outside counsel is caused by a conflict involving the city attorney's office), and upon approval by the governing body city commission of a contract for services approved as to form by the city attorney; and PROOFS Page 50 of 977 9. Serve as legal custodian of the board's records, and accept, file, maintain and administer, in accordance with all applicable laws, any information related to the purposes of this division; and 10. Make financial disclosure statements filed with the board available for public inspection and copying facilities available at a charge which is the minimum amount permitted under applicable law. All open opinions of the board shall be filed with the city clerk and are open to public inspection. To the extent permitted by law, confidential opinions and any records obtained or filed in connection with requests for confidential opinions, whether the records are written, tape recorded, videotaped, or otherwise recorded shall be kept confidential; and confidential advisory opinions rendered shall be closed in whole to public inspection. Confidential opinions and summaries of them or open references to them shall be drafted in such a way as not to reveal confidential information; 11. Compile and maintain an index to all financial disclosure statements currently on file with the board to facilitate public access to such statements; and 12. Develop a plan for implementation of a program to educate public servants who are subject to this division and the public about their rights, duties and responsibilities hereunder; and 13. Within one year from the date of the first meeting of the board, submit to the governing body city commission for its approval and promulgation, an ethics handbook for the use of all public servants and the public; the personnel human resources department34 shall document that each city officer and employee receives a copy of the handbook and acknowledges receipt of the handbook in writing; and 14. In coordination with the city attorney, city manager, and other appropriate city personnel, arrange for the conduct of an annual workshop, which shall serve as an orientation for new board members and an opportunity for experienced members to explore specific issues in depth; attendance at this workshop shall be made a condition of service as a member of the board, and, before taking office, board members shall commit themselves to attend it. B. The board may: 1. Conduct hearings as it determines necessary or appropriate a. To ascertain public opinions and to gather information from the general public, employees, or others regarding any aspect of the city's ethics policies or practices; and b. For any other purpose for which the board is authorized to conduct hearings; and 2. Respond, as it deems appropriate, to requests for confidential advisory opinions; the board may decline to render an opinion in response to any request for an advisory opinion; 3. Render and publish formal opinions on any matter within the scope of the board's authority which it may deem appropriate; the board may initiate opinions on its own motion or upon request; any formal opinion shall be in writing; and 34 This is not one of the departments listed in new section 2.04.010. Should it be added? Change to human resources department per city instructions PROOFS Page 51 of 977 4. Prepare and publish special reports, technical studies, and recommendations to further the purposes of this division. (Ord. No. 1726, § 2(2.01.130), 11-26-2007; Ord. No. 1759, § 1(2.01.130), 4-20-2009; Ord. No. 1775, § 8(2.01.130), 12-28-2009) Sec. 2.03.610. Who may request board action. A. Any person may file a complaint with the board, and any public servant, prospective public servant or former public servant, either personally or on behalf of an organization or governmental body, may request of the board an ethics opinion, whether a formal opinion or a confidential advisory opinion, regarding the propriety of any matter or matters to which the person is or may become a party; and any decision maker, with the consent of a prospective appointee, may request of the board an ethics opinion regarding the propriety of any matter to which the public servant, prospective public servant or former public servant is or may become a party. B. Any request for board action shall be in writing, and shall be signed by the person making the request. (Ord. No. 1726, § 2(2.01.140), 11-26-2007; Ord. No. 1759, § 1(2.01.140), 4-20-2009) Sec. 2.03.620. Limitations on board's power. The board does not have the authority to reverse or otherwise modify a prior action of the mayor, governing body city commission, or an officer or employee of the city. If the board finds a prior action of the mayor, the governing body city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body. If the board determines an existing city contract to be ethically improper, after such determination and advice from the board, the city may void or seek termination of the contract if legally permissible. The board may refer a matter to the city attorney for review and consideration for appropriate action. Upon completion of review and consideration, the city attorney's office shall report its findings to the board. (Ord. No. 1726, § 2(2.01.150), 11-26-2007; Ord. No. 1759, § 1(2.01.150), 4-20-2009) Sec. 2.03.630. City attorney opinions. A. At the request of a person, the city attorney may render an informal or formal advisory opinion with respect to the prospective conduct of such person. An informal advisory opinion need not be written, and may be provided directly to the requestor of such opinion. A request for a formal advisory opinion must be in writing and include all the information and documents related to the request. The request for either an informal or formal advisory opinion must state all the material facts so the city attorney may render a complete and correct opinion. The city attorney's formal advisory opinion must be in writing. Nothing in this division shall be construed to prohibit a request for an opinion by any public servant from the city attorney regarding a potential conflict of interest. Neither a request for an informal or formal advisory opinion, nor the making of a statement concerning a potential conflict of interest made by a member of the city commission in the course of abstaining from voting or making a motion of self- recusal, shall create a presumption or inference that a public servant actually has a personal interest in the matter about which the opinion was requested; if the city attorney elects to render an opinion, the city attorney shall, within a reasonable time, submit a written summary of the opinion to the ethics board for the board's information; if the city attorney declines to render an opinion, nothing shall preclude the person requesting the opinion from requesting the ethics board for an opinion. B. Any formal advisory opinion issued pursuant to this section may be relied upon by the person directly involved in the specific transaction or activity to which such advisory opinion PROOFS Page 52 of 977 has been issued, and any person directly involved in any specific transaction or activity which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion was rendered. C. Any person who relies upon a formal advisory opinion pursuant to this section, and who acts in good faith in accordance with the provisions and findings of such opinion, shall not, as a result to such act, be subject to prosecution under this division or, in the case where the opinion is exculpatory, be subject to any administrative adverse action or civil action based upon legal authority cited in that opinion. D. The city attorney's client is the City of Bozeman and not the individual requesting the opinion. No request for an opinion from the city attorney shall constitute the establishment of an attorney-client relationship with the individual requesting the opinion. (Ord. No. 1726, § 2(2.01.160), 11-26-2007; Ord. No. 1759, § 1(2.01.160), 4-20-2009) Sec. 2.03.640. Procedures for hearing complaints. A. Any person may file a written complaint, signed and sworn, with the city clerk alleging a violation of this division or a violation of title 2, chapter 2, part 10035 of Montana Code Annotated (MCA 2-2-101 et seq.). B. A complaint shall specify the provisions of this division or provisions of title 2, chapter 2, part 10036 of Montana Code Annotated (MCA 2-2-101 et seq.) alleged to have been violated and facts alleged to constitute the violation. C. Upon receipt of such a complaint, but in any event not later than three working days after receipt, the city clerk shall acknowledge receipt to the complainant, and forward the complaint simultaneously to the board, the person who is complained against and the city attorney. D. The city attorney shall provide the board with a preliminary written analysis of the complaint no later than 30 days from the date the complaint is filed with the city clerk. E. During any investigation and during any hearing which is conducted to determine whether a violation of this division or a violation of title 2, chapter 2, part 10037 of Montana Code Annotated (MCA 2-2-101 et seq.) has occurred: 1. The person under investigation or the accused may be represented by counsel of the person's own choosing; and 2. The accused or the accused's representative, if any, shall have an opportunity to: a. Challenge the sufficiency of any complaint which has been filed against the accused; b. Examine all documents and records obtained or prepared by the board in connection with the matter heard; c. Bring witnesses; d. Establish all pertinent facts and circumstances; e. Question or refute testimony or evidence, including the opportunity to confront and cross examine adverse witnesses; and 35 This should be Part 1. Ok. 36 This should be Part 1. Ok. 37 This should be Part 1. Ok. PROOFS Page 53 of 977 f. Exercise, to the extent the board, in its discretion, determines to be just and reasonable, any pretrial discovery procedure usually available in civil actions. F. The following principles shall apply to evidence in connection with hearings conducted by the board: 1. The board shall not be bound to adhere to statutory Rules of Evidence, but shall be fundamentally fair in its administration of evidence; and 2. During any hearing conducted by the board to determine whether a violation of this division has occurred, all evidence including certified copies of records which the board considers shall be fully offered and made a part of the record in the proceedings; and 3. The accused or any other person under investigation shall be afforded adequate opportunity to rebut or offer countervailing evidence; and 4. The board shall inform the accused or the accused's counsel of exculpatory evidence in its possession; and 5. The standard of evidence in hearings conducted under this division shall be clear and convincing evidence admitted at the hearing. G. The board, in addition to its other duties and powers, may: 1. Appoint a hearing officer to conduct hearings under this division; 2. With the approval of the governing body city commission, retain outside legal counsel and other experts as needed with respect to hearings in accordance with its policies. The selection of a hearing officer and outside counsel and other experts and any contract for such persons shall be made after solicitation of recommendations from the city attorney and upon approval by the governing body city commission of a contract for services approved as to form by the city attorney; 3. Order testimony to be taken by deposition before any individual who is designated by the board and, in such instances, to compel testimony and the production of evidence to the extent it is otherwise lawfully authorized to do so; 4. Require any person to submit in writing such reports and answers to questions relevant to the proceedings conducted under this division as the board may prescribe, such submission to be made within such period and under oath or otherwise as the board may determine; and 5. Request and obtain from the department of revenue copies of state income tax returns and access to other appropriate information as permitted under state law regarding all persons who are the subject of such investigation. H. The person complained against shall have 20 days from the day after the city clerk serves the complaint on the person to submit a written response to the complaint prior to the board deciding whether to hold a hearing. Service may be by certified mail, return receipt at the last known address in city records or personal service. I. If the complaint is dismissed, the complainant shall have one opportunity within 15 days of the dismissal to amend the complaint and to refile it with the board. J. Any person whose name is mentioned or who is otherwise identified during a hearing being conducted by the board and who, in the opinion of the board, may be adversely affected thereby, may, upon request of the person or a representative of the person, or upon the request of any member of the board, appear at the hearing to testify on such person's own behalf or have a representative appear to so testify, and the board may permit any other person to appear PROOFS Page 54 of 977 and to testify at a hearing. K. Upon request of the accused, on its own motion, or upon request of the city attorney, the board shall issue subpoenas to compel the attendance of necessary witnesses. L. At the next regular meeting, or within 30 days, whichever is sooner, following receipt of the city attorney's analysis, the board shall review and consider the complaint and the city attorney's analysis, and, if a hearing is to be held, shall set a date certain for the hearing to take place within 30 days, unless the accused petitions for and the board consents to a later date. M. As soon as practicable after giving due consideration to a complaint, or, if a hearing was held, after the hearing, the board shall take any action or combination of actions which it deems appropriate and which it is lawfully empowered to take, including but not limited to the following: 1. Dismiss the complaint based on any of the following grounds: a. The complaint does not allege facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 10038 of Montana Code Annotated (MCA 2-2-101 et seq.); or b. The board has no jurisdiction over the matter; or c. Failure of the complainant to cooperate in the board's review and consideration of the complaint; or d. The complaint is defective in a manner which results in the board being unable to make any sound determination; and 2. Determine that no violation of this division or a violation of title 2, chapter 2, part 10039 of Montana Code Annotated (MCA 2-2-101 et seq.) has occurred; or 3. Determine that the complaint alleges facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 10040 of Montana Code Annotated (MCA 2-2-101 et seq.), and that the board will conduct a hearing, in which case the board shall promptly send written notice of such determination to the accused and to the party who made the complaint; or 4. Determine that further information must be obtained in order for the board to determine whether the complaint alleges facts sufficient to constitute a violation of the division or a violation of title 2, chapter 2, part 10041 of Montana Code Annotated (MCA 2-2-101 et seq.); and a. Conduct its own investigation with respect to any alleged violation; or b. Schedule the complaint for further review and consideration at a future time certain, in which case the board shall promptly send written notice of such determination to the accused and to the party who made the complaint; or c. Refer the complaint to any appropriate authorities for criminal investigation; or d. Refer the complaint, if it appears to be substantiated, to the county attorney 38 This should be Part 1. Ok. 39 This should be Part 1. Ok. 40 This should be Part 1. Ok. 41 This should be Part 1. Ok. PROOFS Page 55 of 977 or city attorney for prosecution; or e. Refer the complaint, along with the board's findings and conclusions, to any appropriate administrative authority for disciplinary action or other suitable remedial action; the board, although it has no independent administrative authority, may make any recommendation to any city administrator at any level of supervision, if the board finds that the recommendation will advance the objectives of this division; whether to implement the recommendation may be decided by whatever decision maker is authorized under the circumstances; if it is determined that misconduct or malfeasance has occurred, the board shall refer the matter to the city manager, city attorney or to the governing body city commission, as circumstances warrant. 5. After it has made its final determination, the board shall issue its written findings of fact and conclusions, and may issue any additional reports, opinions and recommendations as it deems advisable under the circumstances. All such reports shall be in compliance with all state and city laws governing confidentiality, open government, and torts. All such reports shall be reviewed by the city attorney prior to their issuance. (Ord. No. 1726, § 2(2.01.170), 11-26-2007) Sec. 2.03.650. Those subject to removal only by governing body city commission. If findings relative to an elected or appointed official are filed by the board with the governing body city commission, the governing body city commission may take action to remove the official in accordance with state law. (Ord. No. 1726, § 2(2.01.180), 11-26-2007) Sec. 2.03.660. Ex parte communications. A. After a complaint has been filed and during the pendency of a complaint before the board, no member of the board may communicate directly or indirectly with any party or other person about any issue of fact or law regarding the complaint, except that: 1. The members of the board may obtain legal advice from the city attorney (or retained counsel) and may discuss the complaint with their staff; and 2. The members of the board may discuss the complaint at a lawfully conducted meeting. B. If any person attempts to communicate with a board member regarding the pending complaint, the board member shall report the substance of the communication to the board on the public record at the next regular meeting of the board. (Ord. No. 1726, § 2(2.01.190), 11-26-2007) Sec. 2.03.670. Confidentiality of board information. No member of the board nor any public servant who has access to any confidential information related to the functions or activities of the board shall divulge that information to any person who is not authorized to have it. The identity of a person who requests a confidential advisory ethics opinion is confidential, as is information describing or pertaining to any organization mentioned in the request for an opinion if the disclosure of the information could lead to the disclosure of the identity of the person requesting the confidential advisory opinion. (Ord. No. 1726, § 2(2.01.200), 11-26-2007) PROOFS Page 56 of 977 Sec. 2.03.680. Waiver of confidentiality. A person who makes or purports to make public the substance of or any portion of an advisory opinion requested by or on behalf of that person is deemed to have waived the confidentiality of the request for an advisory opinion and of any records obtained or prepared by the board in connection with the request for an advisory opinion. (Ord. No. 1726, § 2(2.01.210), 11-26-2007) Sec. 2.03.690. Statute of limitations. No action may be taken on any complaint which is filed later than one year after a violation of this division is alleged to have occurred, and a complaint alleging a violation must be filed within one year from the date the complainant knew or should have known of the action alleged to be a violation. (Ord. No. 1726, § 2(2.01.220), 11-26-2007) DIVISION 5. IMMUNIZATION, DEFENSE AND INDEMNIFICATION*42 *State law reference—Liability exposure and insurance coverage, MCA 2-9-301 et seq. 1.20.010. Purpose. It is the purpose of this section to provide for immunization, defense, and indemnification of public officers and public employees of the city civilly sued for alleged violations of Constitutional Initiative 75 for actions taken within the course and scope of their employment. (Code 1982, § 1.20.010; Ord. No. 1482 § 1, 1998) 1.20.020. Immunization, indemnification and defense. That in any civil action brought against any public official or public employee of the city alleging a violation of Constitutional Initiative 75, the city shall then defend the action on behalf of the public official or public employee and indemnify the public official or employee for any liability resulting from the alleged violation of Constitutional Initiative 75, except as provided in Section 1.20.030. (Code 1982, § 1.20.020; Ord. No. 1482 § 1, 1998) 1.20.030. Exceptions. In a civil action alleging a violation of Constitutional Initiative 75, in which a public official or public employee of the city is a party defendant, the public official or public employee may not be defended or indemnified by the city for any money judgments or legal expenses, including attorney's fees, to which the public official or public employee may be subject as a result of a suit, if a judicial determination is made that: __ The conduct upon which the claim is based constitutes oppression, fraud, or malice or for any other reason does not arise out of the course and scope of the public official or public employee's employment; 42Note by city staff. Constitutional Initiative 75 was overturned by the Montana Supreme Court in Marshall v. State ex rel. Cooney, 975 P.2d 325, 1999 MT 33 (1999). Ordinance 1482 adopting this entire section was done for the purpose of providing specific immunity to employees and officials in the wake of the adoption of the CI. Since the initiative was overturned, the purpose behind the ordinance is moot. Please delete this entire section. PROOFS Page 57 of 977 __ The public official or public employee compromised or settled the claim without the consent of the city; or __ The public official or public employee failed or refused to cooperate reasonably in the defense of the case. If no judicial determination has been made applying the exclusions provided above, the city may determine whether those exclusions apply. However, if there is a dispute as to whether the exclusions apply, and the city concludes it should clarify its obligation to the public official or public employee arising under this section by commencing a declaratory action or other legal action, the city is obligated to provide a defense or assume the costs of the defense of the public official or public employee until a final judgment is rendered in such action holding that the city has no obligation to defend the public official or public employee. The city has no obligation to provide a defense to the public official or public employee in a declaratory judgment action or other legal action brought against the public official or public employee by the city under this section. (Code 1982, § 1.20.030; Ord. No. 1482 § 1, 1998) 1.20.040. Notice. Upon receipt of service of Summons and Complaint alleging a violation of Constitutional Initiative 75, the public official or public employee shall give written notice to the city manager or to the city attorney requesting that a defense to this action be provided by the city. (Code 1982, § 1.20.040; Ord. No. 1482 § 1, 1998) ARTICLE 4. DEPARTMENTS* *State law reference—Officers and employees, MCA 7-4-101 et seq. DIVISION 1. GENERALLY Sec. 2.04.010. Administrative departments established.43 A. The following administrative departments of the city are established: 1. Department of finance; 2. Department of fire; 3. Department of human resources; 4. Department of information technology; 5. Department of law; 6. Department of parks and recreation; 7. Department of planning and community development; 8. Department of police; and 9. Department of public services. __ Department of Law; __ Department of Public Service; __ Department of Planning & Community Development; __ Department of Public Safety; 43 Note changes requested by city staff. PROOFS Page 58 of 977 __ Department of Finance. B. The commission may by ordinance establish, alter, or abolish city departments, officers, or agencies and may prescribe the functions of all departments, offices and agencies. The city manager may, by administrative order, transfer eliminate, or add functions to the departments, to include organizing or reorganizing all divisions thereunder. (Code 1982, § 2.12.010; Ord. No. 1643, § 2, 7-18-2005) Secs. 2.04.020--2.04.140. Reserved. DIVISION 2. DEPARTMENT OF FINANCE*44 *State law reference—Financial administration and taxation, MCA 7-6-101 et seq.; debt management, MCA 7-7-101 et seq. Sec. 2.04.150. Director of finance; appointment; --bond--powers and duties. A. The director of public finance shall be the head of the department of finance, and shall work under the supervision and control of the city manager in all matters; except that as custodian of all the public moneys which may come into his the director's hands, he the director of finance shall be governed by the laws of the state relating to city treasurers and funds of municipalities, and shall be responsible under his bond for the safekeeping of all public moneys and the deposit of the same as required by law. The director of finance shall be custodian of all public moneys for the city and all other public moneys for the city and all other public moneys coming into his the director's hands. He The director of finance shall keep and preserve such money in the place determined by ordinance or by the provisions of any law applicable thereto. Except as otherwise provided by law, he the director of finance shall collect, receive and disburse all other public moneys coming into his the director's hands, in pursuance of such regulations as may be prescribed by the authorities having lawful control of such funds. The director of finance shall keep and have the supervision of all accounts of the city, and shall be the collector of all moneys paid to the city. B. The director of finance shall: 1. Mail notices of all special assessments for public improvements to property owners, and perform all duties in connection with special assessments for improvements prescribed by law for city treasurers; 2. Have charge of the collection of such assessments as are payable directly to the city and the preparation of the lists and the certification thereof of all unpaid assessments to the county treasurer for collection by him; 3. Issue all licenses and collect all fees therefor; 4. Be the collector of water rents and all other moneys owing to the city on account of the city waterworks system. The director of finance shall be responsible for the safekeeping of all funds on account of the city waterworks system, and the bond to be given by the director of finance, as hereinafter provided, shall cover his duties with respect to funds derived from or on account of the waterworks system, as well as all other funds which may come into his hands. C. The director of finance shall have all the authority and shall be charged with all the duties prescribed by all of the laws of the state and ordinances of the city relating to the powers and duties of city treasurers of municipalities, except that the director of finance shall not have 44 Note changes in this division requested by city staff. PROOFS Page 59 of 977 charge of the purchasing of supplies for or selling property belonging to the city. D. The director of finance shall be appointed by the city manager. Before entering upon the duties of the director of finance's office, the director of finance shall take and subscribe to the oath of office, and give an official bond in the sum of at least twenty thousand dollars, and such an additional amount as the commission may require, with sufficient surety to be approved by the commission, and said oath and bond shall be filed with the clerk thereof. The director shall receive such salary as may be fixed by the city manager. (Code 1982, § 2.32.010; Ord. No. 1537, § 10, 11, 5-29-2001) Sec. 2.04.160. City manager duties. Under the department of finance, the duties of the city manager shall include the purchase, storage and distribution of supplies needed by the various departments, and he the city manager shall have charge, under the supervision of the city commission, of selling all real and personal property of the city not needed or suitable for public use or that the city manager may have been condemned as useless by him. He The city manager shall have charge of such storerooms and storehouses as the city may possess in which shall be stored all supplies and materials purchased by the city and not delivered to the various departments. He The city manager shall inspect all supplies delivered to determine quality and quantity in conformity with specifications. (Code 1982, § 2.32.020) Sec. 2.04.170. Fiscal year; revenue and expenditure estimates. A. The fiscal year of the city shall begin on July 1. The city manager shall submit to the commission an estimate of the expenditures and revenues of the city departments for the ensuing year. Thereafter, and upon receipt of such estimate, the commission shall prepare and pass an appropriation resolution ordinance. B. Upon request of the city manager, the commission may transfer any part of an unencumbered balance of an appropriation to a purpose or object for which the appropriation for the current year has provided insufficient funds, or may authorize a transfer to be made between items appropriated to the same office or department. C. At the close of each fiscal year, the unencumbered balance of each appropriation shall revert to the respective funds from which it was appropriated and shall be subject to future appropriation. (Code 1982, § 2.32.030; Ord. No. 1537, § 12, 5-29-2001) 2.32.040. Sinking fund trustees designated. The members of the commission, the city manager and the director of finance shall constitute the sinking fund trustees. The mayor shall be the president and the director of finance and shall be the secretary of the trustees of the sinking fund. The trustees of the sinking fund shall manage and control the sinking fund in the manner provided by the laws of the state or by ordinance. (Code 1982, § 2.32.040) Secs. 2.04.180--2.04.290. Reserved. DIVISION 3. DEPARTMENT OF FIRE Sec. 2.04.300. Powers and duties of director of public safety- fire chief. The director of public safety-fire chief shall be the head of the fire department of public safety- fire, and shall work under the supervision and control of the city manager in all matters. The fire chief director shall be the executive head of the division of fire department. Whenever state law, contracts or interlocal agreements require the fire chief to perform any service or carry out any PROOFS Page 60 of 977 function, the director of public safety-fire chief shall have the responsibility to perform the service or carry out any function, the fire chief shall have the responsibility to perform the service or carry out the function. The fire chief director shall also be the chief administrative authority in all matters affecting the inspection and regulation of, the erection, maintenance, repair and occupancy of buildings including the inspection of plumbing and electrical wiring in buildings, and shall have charge of the enforcement of all ordinances of the city regulating such matters, and shall see that the laws of the state in respect thereto are enforced within the city. The fire chief shall receive such salary as shall be fixed by the city manager. (Ord. No. 1640, § 2, 6-6-2005) Secs. 2.04.310--2.04.440. Reserved. DIVISION 4. DEPARTMENT OF HUMAN RESOURCES (RESERVED) Secs. 2.04.450--2.04.590. Reserved. DIVISION 5. DEPARTMENT OF INFORMATION TECHNOLOGY (RESERVED) Secs. 2.04.600--2.04.740. Reserved. DIVISION 6. DEPARTMENT OF LAW* *State law reference—Office of city attorney, MCA 7-4-4601 et seq. Sec. 2.04.750. City attorney--Appointment45. The head of the department of law shall be an attorney at law, who has been admitted to practice in the state, and shall be known as the city attorney. The city attorney shall be the legal advisor of and attorney and counsel for the city and for all the officers and departments thereof in matters relating to their official duties. The city attorney shall perform duties and have the authority conferred upon city attorneys by law. (Code 1982, § 2.16.010(A); Ord. No. 1537, § 9, 5-29-2001) Sec. 2.04.760. Same--Authority as head of department. The city attorney shall be appointed by the city manager subject to confirmation by the city commission. Before entering upon the duties of the city attorney's office, the city attorney shall take and subscribed to the oath of office and give an official bond, if the commission shall require, in a sum to be fixed by it, with sufficient surety to be approved by the commission, and said oath and bond shall be filed with the clerk thereof. The city attorney shall receive such salary as may be fixed by the city manager. (Code 1982, § 2.16.010(B); Ord. No. 1537, § 9, 5-29-2001) 45 Note changes requested by city staff. PROOFS Page 61 of 977 Secs. 2.04.770--2.04.890. Reserved. DIVISION 7. DEPARTMENT OF PARKS AND RECREATION (RESERVED) Secs. 2.04.900--2.04.1040. Reserved. DIVISION 8. DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT (RESERVED) Secs. 2.04.1050--2.04.1190. Reserved. DIVISION 9. DEPARTMENT OF POLICEPUBLIC SAFETY46 Sec. 2.04.1200. Powers and duties of director of public safety – chief of police. The director of public safety-chief of police shall be the head of the police department of public safety-police, and shall work under the supervision and control of the city manager in all matters. The chief of police director shall be the executive head of the division of police department. Whenever state law, contracts or interlocal agreements require the chief of police to perform any service or carry out any function, the director of public safety-chief of police shall have the responsibility to perform the service or carry out the function. The chief of police director shall also be charged with the enforcement of all laws and ordinances relating to weights and measures. The chief of police director shall receive such salary as shall be fixed by the city manager. (Code 1982, § 2.40.010; Ord. No. 1537, § 14, 5-29-2001; Ord. No. 1640, § 1, 6-6-2005) Sec., 2.40.060. MCA 3-6-303, 7-4-4101, 7-32-4105, 7-32-4118, 7-32-4119, 37-60-304, 37-60-406, 39-3-406, 45-8- 322, 45-8-325, 46-23-503, 46-23-504, 46-23-505, 52-2-211, 61-3-106, 61-3-424, 61-12-401, 61-12-402, 7-33-4103, 7-33-4104, 7-33-4123, 19-17-401, 50-37-107, 50-61-114, 50-62-101, 50-63-202, and 50- 78-301, where inconsistent with Bozeman Municipal Code section 2.40.010 are hereby superseded to the extent said sections require a police or fire chief and require the fire chief or police chief to perform any service or carry out any function instead of the Director of Public Safety. The intent of this section is to place responsibility of any fire chief or police chief duties, functions or services required by state law with the Director of Public Safety. (Ord. No. 1551 § 2, 12-3-2001) Secs. 2.04.1210--2.04.1340. Reserved. DIVISION 10. DEPARTMENT OF PUBLIC SERVICES47 Sec. 2.04.1350. Director designated; powers and duties. The director of public services shall be the head of the department of public services and shall work under the supervision and control of the city manager in all matters. The director shall discharge all of the duties prescribed by law for that officer, and as such shall manage and have charge of the construction, improvements, repair and maintenance of streets, sidewalks, alleys, lanes, bridges, viaducts and other public highways, and of all sewers and sewerage disposal plants, drains, ditches, culverts, canals, streams and watercourses. The director shall manage and have charge of the waterworks system owned by the city, and improvements thereon, and shall have charge of the enforcement of all obligations of privately owned or operated public utilities enforceable by the city. The director shall have charge and supervision of the making and 46 Note changes in this division requested by city staff. 47 Note changes in this division requested by city staff. PROOFS Page 62 of 977 preservation of all surveys, maps, plans, drawings and estimates for public work; and charge of the cleaning, sprinkling and lighting of streets and public places; and of the collection and disposal of waste; and charge and supervision of the preservation of contracts, papers, plans, tools and appliances belonging to the city and pertaining to the department of public services. The director shall receive such salary as may be fixed by the city manager. (Code 1982, § 2.44.010; Ord. No. 1537, § 15, 5-29-2001; Ord. No. 1643, § 4, 7-18-2005) Sec. 2.04.1360. Sewer connection requirements; director powers and duties. The director of public services shall have authority to compel the making of sewer connections whenever, in view of a contemplated street improvement which has been ordered by the commission, or as a sanitary regulation, a sewer connection should in the director's judgment be constructed. The director shall cause written notice requiring such construction to be given to the owner of each lot or parcel of land for which such connection is to be made. Such notice shall be served by the director of public service or some person designated by the director in the manner provided for the service of summons in civil actions. Nonresidents of the city, or persons who cannot be found, may be served by one publication of such notice in a daily newspaper of general circulation in the city. It shall state the time within which such connections shall be constructed, and if they are not constructed within the time specified, they may be constructed by the city and the cost thereof, together with a penalty of five percent, assessed against the lots and lands for which such connections are made. Such assessments shall be certified and collected as other assessments for street improvements. (Code 1982, § 2.44.020; Ord. No. 1537, § 16, 5-29-2001) Sec. 2.04.1370. Engineer and other department personnel. In the department of public services there may be an engineer, who may be referred to as the city engineer, and there shall be such officers and employees as the city manager may determine, all of whom shall work under the direction and supervision of the director of public service. Before entering upon the duties of the engineer's office, the engineer shall take and subscribe to the oath of office and shall give an official bond in the sum of at least one thousand dollars, with sufficient surety to be approved by the commission, and such oath and bond shall be filed with the clerk thereof; and all other officers and employees in the department of public service shall give a bond to the city if required by the city manager, in an amount to be fixed by the city manager. The engineer and all of the officers and employees in the department of public services shall receive such salary or compensation as may be fixed by the city manager, and shall hold office or be employed at the will of the city manager. (Code 1982, § 2.44.030; Ord. No. 1537, § 17, 5-29-2001) ARTICLE 5. BOARDS AND COMMISSIONS DIVISION 1. GENERALLY Secs. 2.05.010--2.05.140. Reserved. DIVISION 2. RECREATION AND PARKS ADVISORY BOARD Sec. 2.05.150. Recreation and parks advisory board creation, membership and meetings. A. The city commission shall appoint a recreation and parks advisory board, hereinafter referred to as the "board," which shall consist of up to 14 members, representing as many facets of recreational programs as possible and selected as follows: 1. Seven of the members shall be city residents appointed by the city commission; 2. Two of the members shall be recommended by the county board of commissioners, PROOFS Page 63 of 977 with final appointment to be made by the city commission; 3. Up to three additional at-large members may be appointed by the city commission, with city residency being a consideration, but not a mandatory requirement; and 4. Up to two student members from area secondary schools, including home schooled students, may be appointed by the city commission, with city residency being a consideration, but not a mandatory requirement. B. All members shall be appointed for terms of three years, except student members who shall be appointed for a term of one year. A majority of the members on the board, regardless of its size, shall be residents of the city. C. The board shall hold an annual meeting in January, at which meeting it shall elect one of its members as chairman of the board to serve as such for the ensuing year; and it shall hold such other meeting as may be required to transact business which may come before it. A majority of the voting members of the board shall constitute a quorum for the purposes of conducting business. Regular meetings will be held on such dates as may be set by the board, and special meetings may be held on any date at the request of a majority of the members of the board, the city manager or the city commission. All meetings shall be open to the public. Reasonable public notice shall be given prior to all regular and special meetings. (Code 1982, § 2.36.030; Ord. No. 1175, § 1, 1985; Ord. No. 1312, § 1, 1990; Ord. No. 1507, § 1, 2000) Sec. 2.05.160. Board, ex officio member. The city manager, or a designee, shall be an ex officio, nonvoting member of the board. It shall be his the city manager's duty to keep the board informed as to city policies, the city budget, and to make available to them any information which he the city manager deems pertinent to the recreation and parks advisory board. (Code 1982, § 2.36.050; Ord. No. 1175, § 1, 1985; Ord. No. 1312, § 3, 1990) Sec. 2.05.170. Board secretary. The board shall select a secretary, who shall attend all meetings of the board and keep correct minutes of all proceedings of the board in a book to be provided for that purpose, to be called the "record of the recreation and parks advisory board of the City of Bozeman" and shall perform such other duties necessarily implied by the activities and duties of the board. The secretary may be an employee of the city approved by the city manager or a board member. (Code 1982, § 2.36.060; Ord. No. 1175, § 1, 1985; Ord. No. 1312, § 4, 1990) Sec. 2.05.180. Board recommendations to city manager. A. The board shall make recommendations to the city manager on the following subjects: 1. The number and nature of duties of division48 department of parks and recreation employees and/or assistants; 2. Recreation program offerings; 3. Rules and regulations for the management of playgrounds, recreation centers and other recreation places and activities; 4. Fees to be charged for activities and use of recreation property; 48 Code 1982, § 2.36.070. What is "division" referring to in this section? Replace "division" with "department of parks and recreation" per city instructions. PROOFS Page 64 of 977 5. Annually review with administration each year a proposed budget covering the recreational activities to be offered for the ensuing fiscal year; and 6. Other recommendations as requested. (Code 1982, § 2.36.070; Ord. No. 1175, § 1, 1985; Ord. No. 1643, § 3, 7-18-2005) Sec. 2.05.190. Board recommendations to city commission. A. The board shall make recommendations to the city commission on policy and procedural matters in the field of public recreation. Subject to the approval of the city manager, the board shall make recommendations on the following subjects: 1. Equipment, operation and supervision of playgrounds, athletic fields, swimming pools and indoor recreation facilities, on or in any public grounds or buildings, either within or without the city, which the city commission may from time to time provide, acquire, authorize, offer, designate or set apart for such use; 2. The organization and conduct of play and recreation activities on the grounds and in the buildings under the control of the school district or the county, upon approval of the respective entity; 3. The use of any grounds, places, buildings or facilities which may be offered, either temporarily or permanently, by individuals or corporations for playground or recreational purposes; 4. On park land or cash-in-lieu proposals by developers through the planning process; and 5. Other recommendations as requested. (Code 1982, § 2.36.080; Ord. No. 1175, § 1, 1985) Sec. 2.05.200. Board; donations. When approved by the city commission, the board may, on behalf of the city, receive donations, legacies or bequests for the improvement or maintenance of playgrounds, recreation centers or other recreational facilities; and all moneys that may be derived from such donations, legacies or bequests shall be deposited with the director of finance of the city to the credit of the recreation trust fund; and the same may be drawn therefrom and paid out upon approval of the city commission in the same manner as provided in payment of moneys legally appropriated for the acquisition, support and improvement for playgrounds, recreation centers and other recreation places; and the moneys so derived from such donations, legacies or bequests shall be used solely for such playground or recreation uses. (Code 1982, § 2.36.090; Ord. No. 1175, § 1, 1985) Sec. 2.05.210. Recreation fees. Fees charged by the division for activities and use of recreation property shall be deposited with the director of finance. (Code 1982, § 2.36.110; Ord. No. 1175, § 1, 1985) Secs. 2.05.220--2.05.340. Reserved. DIVISION 3. LIBRARY BOARD OF TRUSTEES*49 *State law reference—Libraries, MCA 22-1-101 et seq. 49 Note changes requested by city staff. PROOFS Page 65 of 977 Sec. 2.05.350. Appointment; composition and organization. The board of trustees of the public library of the city shall be under the department of public welfare. The board of trustees of the Bozeman Public Library shall be composed of five persons, and shall be appointed by the mayor with the advice and consent of the commission, and shall serve without pay. The trustees shall hold their office for the term of five years, and one trustee shall be appointed annually at the beginning of each fiscal year for the term of five years, and until such trustee's successor is appointed and qualifies. Trustees shall serve no more than two full terms in succession. The powers and duties of the board shall be those prescribed by the laws of the state and the ordinances of the city. (Code 1982, § 2.56.010(A); Ord. No. 1094, § 1, 1982; Ord. No. 1163, 1984) Sec. 2.05.360. Powers and duties. The trustees of the library board shall perfect their own organization, and select such officers for such board as they may deem advisable. The chairman and vice-chairman of the board shall be one of their number. They shall have power to select librarians and other employees as they may determine and fix the amount of any bond which they may require to be given by the librarian and other employees. They shall have power to receive books from all sources for the use and benefit of the library and to purchase books therefor with any money available for that purpose, and power to prescribe all rules and regulations for the use of books and the preservation of the same. The board shall keep a record of its transactions, and shall make a report to the city commission at the close of each calendar year, covering the business transacted by it during the year. (Code 1982, § 2.56.010(B); Ord. No. 1094, § 1, 1982; Ord. No. 1163, 1984) DIVISION 4. CITY-COUNTY PLANNING BOARD50 2.64.010. Established--powers and duties. Pursuant to and under the provisions of Title 76 of the Montana Code Annotated (MCA 76-1- 101 et seq.), the city commission of the city of Bozeman does create and establish a joint city- county planning board as provided in said title, and does by this chapter adopt all of the sections of the laws of Montana aforementioned that specifically pertain to a joint city-county planning board, granting and delegating to the city-county planning board all of the rights, privileges, powers, duties and responsibilities thereto appertaining. (Code 1982, § 2.64.010; Ord. No. 1291 § 1, 1989) 2.64.020. State law adopted by reference. The city commission does adopt by this reference the language of the laws of Montana aforementioned as they specifically pertain to a joint city-county planning board, in this chapter the same as if they were set out herein in full. (Code 1982, § 2.64.020; Ord. No. 1291 § 2, 1989) 2.64.030. Additional member appointed by city. In addition to the membership specified in MCA 76-1-201, pursuant to the interlocal agreement between the city of Bozeman and Gallatin County dated September 11, 1989, on file and of record both in the offices of the clerk of the city commission and the Gallatin County clerk and recorder, so long as the city-county planning board is designated to act as the city of Bozeman's zoning commission, the city shall appoint one additional member to the city-county planning board who must reside within the city limits of Bozeman, Montana. 50 Deleted as obsolete at request of city staff. PROOFS Page 66 of 977 (Code 1982, § 2.64.030; Ord. No. 1291 § 3, 1989) Secs. 2.05.370--2.05.490. Reserved. DIVISION 4. CITY PLANNING BOARD Sec. 2.05.500. Established; powers and duties. Pursuant to and under the provisions of title 76, Montana Code Annotated (MCA 76-1-101 et seq.), the city commission of the city does create and establish a city planning board to be known as the "Bozeman Planning Board" as provided in said title, and does by this division adopt all of the sections of the laws of the state aforementioned that specifically pertain to a city planning board, granting and delegating to the city planning board all of the rights, privileges, powers, duties and responsibilities thereto appertaining. (Code 1982, § 2.66.010; Ord. No. 1508, § 1, 1999; Ord. No. 1494, § 1, 1999) Sec. 2.05.510. Jurisdiction. The planning board shall have such jurisdiction as provided by state law. (Code 1982, § 2.66.020; Ord. No. 1508 § 1, 1999; Ord. No. 1494 § 1, 1999) Sec. 2.05.520. Composition. A. The planning board shall consist of nine members, appointed to two-year terms to expire on January 31, as follows: 1. One member appointed by the city commission from its own membership. The term of the appointed member shall be coextensive with the term of office to which such member has been elected or appointed unless the commission, on its first regular meeting of each year, appoints another to serve as its representative or unless the appointee's commission term is terminated; 2. Three members appointed by the city commission, one of whom, at the commission's discretion, may be an employee of the city or hold public office in the city or the county. The appointments shall be for two-year terms, with those terms to expire on January 31 of odd-numbered years; 3. One member appointed by the mayor, upon designation by the county board of commissioners, who may be a member of the board of county commissioners or an office holder or employee of the county. This appointment shall expire on January 31 of odd-numbered years; 4. Four citizen members appointed by the mayor, who shall be resident freeholders within the city limits, and who shall be qualified by knowledge and experience in matters pertaining to the development of the city. These appointments shall be coterminous with the term of the mayor. B. The city clerk shall certify the members appointed by the city commission. The certificates shall be sent to and become a part of the records of the planning board. The mayor shall make similar certification for the appointment of citizen members. (Code 1982, § 2.66.030; Ord. No. 1494, § 1, 1999; Ord. No. 1508, § 1, 1999; Ord. No. 1686, § 1, 1-8-2007) Secs. 2.05.530--2.05.650. Reserved. DIVISION 5. CEMETERY BOARD* *State law reference—Cemetery services, MCA 7-35-2131 et seq.; cemetery associations, MCA 35-20-101 et seq.; mausoleum-columbarium authorities, MCA 35-21-101 et seq. PROOFS Page 67 of 977 Sec. 2.05.660. Composition. There is created a cemetery board consisting of seven members to be appointed by the city commission for three-year staggered terms. Should a vacancy occur on the board, the city commission shall appoint a new member to complete the term of appointment so vacated. A majority of the board members shall be residents of the city and all members shall serve without remuneration. Whenever practicable, one of the members of the board shall be a representative of an active, recognized veterans group. (Code 1982, § 2.76.030(A); Ord. No. 1200, 1986; Ord. No. 1462, § 1, 1998; Ord. No. 1643, § 5, 7-18-2005; Ord. No. 1742, § 1, 4-7-2008) Sec. 2.05.670. Organization. The cemetery board, as herein created, shall serve as an advisory board to both the city commission and city administration and, as such, shall be charged with making such investigation and recommendations as requested or deemed necessary for the operation of the cemetery and as required in this division. (Code 1982, § 2.76.030(B); Ord. No. 1200, 1986; Ord. No. 1462, § 1, 1998; Ord. No. 1643, § 5, 7-18-2005; Ord. No. 1742, § 1, 4-7-2008) Sec. 2.05.680. Power and duties. The members of the cemetery board shall perfect their own organization and select such officers for the board as they deem advisable. They shall cause to be kept correct minutes of all proceedings of the board and the same shall be available for public review in the office of the clerk of the commission. (Code 1982, § 2.76.030(C); Ord. No. 1200, 1986; Ord. No. 1462, § 1, 1998; Ord. No. 1643, § 5, 7-18-2005; Ord. No. 1742, § 1, 4-7-2008) Secs. 2.05.690--2.05.840. Reserved. DIVISION 6. HISTORIC PRESERVATION ADVISORY BOARD* *State law reference—Antiquities, MCA 22-3-101 et seq. Sec. 2.05.850. Purpose and intent. The purpose and intent of this division is to provide for an appointed citizen board for the city charged with establishing a local historic preservation program, integrating historic preservation into local, state and federal planning and decision-making processes, identifying, evaluating and protecting historic resources within Bozeman, and educating the general public about historic preservation. (Code 1982, § 2.80.010; Ord. No. 1180, § 1, 1985; Ord. No. 1454, § 1, 1998) Sec. 2.05.860. Object. This division is designed as a measure to establish a local historic preservation program designed to promote the preservation of historic and prehistoric sites, structures, objects, buildings and historic districts by addressing historic preservation issues at the local level and integrating them into local, state and federal planning and decision-making processes. The historic preservation program will include the identification, evaluation and protection of historic resources within the city. (Code 1982, § 2.80.020; Ord. No. 1180, § 2, 1985) PROOFS Page 68 of 977 Sec. 2.05.870. Scope. The historic preservation advisory board shall serve in an advisory capacity to the city commission, 51city-county planning board, zoning commission and other staff members or boards seeking advice on historic preservation issues. (Code 1982, § 2.80.030; Ord. No. 1180, § 3, 1985; Ord. No. 1454, § 2, 1998) Sec. 2.05.880. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: __ "City commission" means the governing body of the city of Bozeman, state of Montana. 1. "Historic preservation advisory board" means the board created by this division and appointed by the local government of the city which is responsible for creating and administering a historic preservation program. 2. "Historic preservation officer" hereinafter called "preservation officer" means the official appointed by the local government who is charged with the responsibility of acting as staff to the historic preservation advisory board. (Code 1982, § § 2.80.040; Ord. No. 1180, § 4, 1985; Ord. No. 1454, § 3, 1998) Sec. 2.05.890. Establishment and quorum. A. In order to carry out the purpose of this division, an historic preservation advisory board is created. All historic preservation advisory board members shall have a demonstrated interest, competence or knowledge in historic preservation. Information on the credentials of the historic preservation advisory board members must be kept on file in the office of the city clerk of the city commission and available during regular office hours for inspection by the public. This historic preservation advisory board shall consist of up to 15 members, as follows: 1. At least three but not more than four members with professional expertise in the disciplines of history, planning, archaeology, architecture, architectural history, historic archaeology, or other historic preservation-related disciplines such as cultural geography or cultural anthropology, provided, however, that at least one member shall be an architect holding state or NCARB registration. Retired professionals shall be given consideration equal to that of practicing professionals. Residency within the city shall not be a prerequisite for membership as a professional representative. 2. 52At least two but not more than four members shall be representatives living in a Bozeman historic districtchosen from the finalized list of National Historic Register historic districts in Bozeman, on file at the city-county planning office. As new members are chosen to replace those whose terms have expired, an effort should be made to ensure adequate distribution of representation among the districts. A member may be chosen from a locally designated historic district if strong interest exists among residents of a particular district. 3. One representative for the commercial neighborhood. This representative shall 51 Changed “city-county planning board” to “city planning board” throughout. 52 Note changes requested by city staff. PROOFS Page 69 of 977 operate a business or own property in the neighborhood described as Main Street -- the commercial area of downtown Bozeman. 4. At least four, but no more than six members shall be at-large representatives. Residency within the city shall not be a prerequisite for membership as an at-large representative. 5. Quorum. A quorum shall be comprised of a minimum of 50 percent of the members, of which at least two shall be professional members. (Code 1982, § 2.80.050; Ord. No. 1180, § 5, 1985Ord. No. 1252, § 1, 1987; Ord. No. 1296, § 1, 1989; Ord. No. 1454, § 4, 1998) Sec. 2.05.900. Appointment and term vacancy. A. All appointments to the historic preservation advisory board shall be made in accordance with the procedures adopted by the city commission for appointments to all advisory commissions and boards. B. Terms of office for the historic preservation advisory board members shall be staggered and two years in duration. C. Vacancies on the board should be filled by appointment in accordance with the procedures adopted by the city commission for appointments to all advisory commissions and boards. (Code 1982, § 2.80.060; Ord. No. 1180, § 6, 1985; Ord. No. 1252, § 2, 1987; Ord. No. 1454, § 5, 1998) Sec. 2.05.910. Staff. A. The preservation officer for Bozeman shall act as staff to the historic preservation advisory board. The preservation officer will be appointed by the historic preservation advisory board with the concurrence of the city commission. In addition, the preservation officer may be employed by the appropriate city department. B. The preservation officer must have a demonstrated interest, competence or knowledge in historic preservation. C. Duties of the preservation officer include coordinating the local historic preservation programs, helping in the development of local surveys, projects and historic preservation planning documents, advising and providing assistance to the local historic preservation advisory board, government agencies and the public, and ensuring to the extent practicable, that the duties and responsibilities delegated by this division are carried out. (Code 1982, § 2.80.070; Ord. No. 1180, § 7, 1985; Ord. No. 1454, § 6, 1998) Sec. 2.05.920. Meetings; notice of meetings. A. The historic preservation advisory board shall conduct a minimum of one regularly scheduled meeting each month, except that the chairperson may cancel any meeting or schedule special meetings when such meetings are necessary to carry out the provisions of this division. Regularly scheduled meetings shall be held at such place, day and hour as may from time to time be fixed by the board. Written notice of special meetings shall be personally served on each member or left at the member's usual place of residence at least 24 hours before the time set for the meeting. B. Requirements for public notice of meetings of the historic preservation advisory board shall be determined by the chairperson in consultation with the Bozeman city attorney. All meetings shall be open to the public in accordance with the Montana State Open Meeting Law. Notice of the meetings should be calculated to reach all interested and affected members of the community. PROOFS Page 70 of 977 C. The historic preservation advisory board shall establish its own bylaws conforming to the guidelines set forth in the "Certified Local Government Program in Montana" and make all written or taped minutes, reports and case decisions available to the public. (Code 1982, § 2.80.080; Ord. No. 1180, § 8, 1985; Ord. No. 1454, § 7, 1998) Sec. 2.05.930. Powers and duties. A. The historic preservation advisory board shall have the powers and duties to: 1. Maintain a system for the survey and inventory of historic and prehistoric properties. The historic preservation advisory board shall maintain this inventory of identified districts, sites and/or structures within the city and make this information available to the public; 2. Use the National Register of Historic Places criteria for designation of properties as a historic district or site and shall apply these criteria for local designation of historic and prehistoric properties; 3. Participate in the process of nominating to the National Register of Historic Places according to the Montana State Regulations for Certified Local Governments, section VI, (B). This includes reviewing and commenting on any national register nominations on property within the city; 4. Review and comment on planning programs undertaken by the city, zoning commission, city-county planning board, and state and federal agencies which relate to historic resources such as land use, municipal improvements, housing and other public programs. This review and comment shall be scheduled within time lines in place for whatever action is being taken; 5. Consult with city, state and federal agencies on all applications, environmental assessments, environmental impact statements and other similar documents pertaining to historic districts, landmark sites, landmarks or neighboring properties within the city. Comments by the historic preservation advisory board shall be sent to the state historic preservation office; 6. Review the local zoning regulations for their applicability to the characteristics of the proposed historic districts, and make recommendations to the appropriate advisory body or decision-making body concerning any changes or modifications to the zoning regulations and zoning district boundaries; 7. Make recommendations to the board of adjustment or city commission regarding variance applications within any historic overlay zone; 8. Render advice and guidance upon request of the property owner as to the restoration, alteration, decoration, landscaping or maintenance of potentially historic buildings or structures. The historic preservation advisory board may create voluntary design guidelines which will be made available to the public for assistance in preservation projects; 9. Participate in, promote and conduct public information, educational and interpretive programs pertaining to historic preservation; 10. Review and process applications for tax abatement pursuant to the provisions of chapter 424 of the Laws of 1989 of the State of Montana as codified by MCA 15-24- 1601 et seq. (Code 1982, § 2.80.090; Ord. No. 1180, § 9, 1985; Ord. No. 1296, § 2, 1989; Ord. No. 1454, § 8, 1998) PROOFS Page 71 of 977 Secs. 2.05.940--2.05.1090. Reserved. DIVISION 7. NEIGHBORHOOD ASSOCIATIONS Sec. 2.05.1100. Short title. This division shall be known and cited as the Neighborhood Recognition Ordinance (NRO) of the City of Bozeman (City), except when cited herein, where it shall be referred to as "this division". (Ord. No. 1728, § 1(2.82.010), 12-10-2007) Sec. 2.05.1110. Intent and purpose. A. The city commission finds that there is a need to create and maintain effective channels of communication with the citizens of Bozeman on matters affecting the livability of their neighborhoods and the community in general. It is the intent of the city commission, through the recognition of neighborhood associations, to foster partnerships of open communication between the city and its neighborhoods; to enhance the environment in which citizens are afforded an opportunity to participate in local governmental decisions; to foster cooperation and consensus among diverse interests; to assist the city and neighborhood residents in developing solutions to mutual problems; and to develop in the citizens a sense of personal pride and responsibility for their neighborhood. B. The city Charter requires that minimum recognition requirements for neighborhood associations be established by ordinance (Charter section 4.06, part B). (Ord. No. 1728, § 1(2.82.020), 12-10-2007) Sec. 2.05.1120. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "City agency" means and includes all departments, bureaus, offices, boards, councils, liaisons, task forces and commissions of the City of Bozeman. 2. "City liaison" means the designee of the city manager responsible for administration and enforcement of the responsibilities of the City of Bozeman as defined by this division in section 2.05.1220. 3. "InterNeighborhood Council (INC)" means the council composed of delegates selected by each recognized neighborhood association. 4. "Minimum standards" means standards contained within this division used to assess the eligibility of neighborhood associations to be recognized by the City of Bozeman and to participate on the INC. 5. "Neighborhood" means a geographically contiguous self-selected community. 6. "Recognized neighborhood association" means an organization formed by residents for the purpose of maintaining and/or improving the livability and quality of their neighborhood, formally recognized by the INC and therefore the City of Bozeman and subject to this division. 7. "Non-recognized neighborhood association" means an organization formed by residents for the purpose of maintaining and/or improving the livability and quality of their neighborhood. A non-recognized neighborhood association is one which has not met the minimum standards for recognition as set forth in this division or has lost its recognized status for failing to comply with the minimum standards as set PROOFS Page 72 of 977 forth in this division. A non-recognized neighborhood association has no representation on the INC. 8. "Neighborhood group" means a loosely organized, non-recognized group of residents formed for the purpose of maintaining and/or improving the livability and quality of their neighborhood and that demonstrates an interest in forming a recognized neighborhood association. A neighborhood group has no representation on the INC. (Ord. No. 1728, § 1(2.82.030), 12-10-2007) Sec. 2.05.1130. Authority. A. Residents, property owners, and representatives of businesses and nonprofit organizations of any city area not recognized previously may form an recognized neighborhood association. Associations seeking formal recognition by the city may make a written request to the city liaison for formal recognition as a neighborhood association under the provisions of this division. Upon receipt of application materials from a non-recognized neighborhood association or neighborhood group, the city liaison shall issue a report and recommendation to the INC. Recognition of a non-recognized neighborhood association or neighborhood group shall be made by a majority vote of the INC. B. Prior to requesting recognition, a non-recognized neighborhood association or neighborhood group shall hold one or more adequately noticed public meetings for the purpose of gathering information, approving bylaws, establishing boundaries, electing officers and determining a name for the association. Adequate notice constitutes mailing, emailing, faxing and/or hand-delivering notices to all eligible for membership, as set forth in section 2.05.1150, within the proposed boundaries of the non-recognized neighborhood association or neighborhood group and/or posting of notices in prominent locations throughout the neighborhood. Notices shall be mailed, emailed, faxed, delivered and/or posted at least seven business days prior to the meeting date. (Ord. No. 1728, § 1(2.82.040), 12-10-2007) Sec. 2.05.1140. Bylaws. A. In order to be recognized, each neighborhood association shall adopt bylaws which will at a minimum include: 1. Statement of organizational purpose; 2. Method for election of officers and description of their terms; 3. Stated duties and responsibilities for officers; 4. Delineation of clear geographic boundaries; 5. Procedures for defining eligibility for neighborhood association membership as set forth in section 2.05.1150; 6. Stipulation for one annual meeting; and 7. Defined means of communicating with residents in the neighborhood association. B. The initial bylaws shall be provided to the city liaison as part of the official recognition process by the INC, in accordance with this division, and shall be signed by the city liaison and a delegate of the INC, and filed with the city. Any bylaw changes must also be filed in writing with the city liaison within 60 days of the revision. (Ord. No. 1728, § 1(2.82.050), 12-10-2007) PROOFS Page 73 of 977 Sec. 2.05.1150. Membership. A. The membership of recognized neighborhood associations shall be open to all residents, property owners, business licensees, and representatives of nonprofit organizations within the defined neighborhood boundaries. B. All eligible for membership in recognized neighborhood associations may actively participate in neighborhood events, activities and meetings exercising voting rights pursuant to neighborhood association bylaws, without regard to race, national origin, religion, economic status, sex or physical ability. C. A recognized neighborhood association will be responsible for maintaining sign-in sheets and other records as required by the neighborhood association bylaws. (Ord. No. 1728, § 1(2.82.060), 12-10-2007) Sec. 2.05.1160. Boundaries. A. Boundaries of recognized neighborhood associations will be defined by the association membership, with assistance from city liaison and INC, and may not overlap other recognized neighborhood association boundaries. A boundary description shall be included in neighborhood association bylaws. B. A newly-forming non-recognized neighborhood association or neighborhood group may file, with the city liaison's office, proposed boundaries while working towards meeting the minimum standards of this division. The city liaison shall be available to provide assistance to newly-forming, non-recognized neighborhood associations or neighborhood groups in reviewing and establishing proposed boundaries. If a neighborhood meeting is not noticed and conducted within six months of filing application materials with the city liaison, or bylaws are not filed with the city liaison within 12 months of filing application materials, the proposed boundaries will no longer be considered valid. C. The city liaison shall be notified in writing and within a reasonable time period of the intent of any recognized neighborhood association considering any boundary modifications. Boundary modifications may occur after residents in the affected area are given notice and the opportunity to vote as prescribed by the recognized neighborhood association's bylaws and provided that any modifications do not overlap with an adjacent recognized neighborhood association. The INC and relevant city departments will be made aware of neighborhood boundary changes by the city liaison. D. Boundaries of a recognized neighborhood association may extend beyond the city limits at the discretion of the respective neighborhood association. Services to non-city residents within a recognized neighborhood association may be limited. (Ord. No. 1728, § 1(2.82.070), 12-10-2007) Sec. 2.05.1170. Funding. Membership fees shall be voluntary and shall not bar any resident from neighborhood association membership or voting privileges. Voluntary dues, contributions, contracts, grants or subscriptions may be used by a recognized neighborhood association as provided for in the neighborhood association's bylaws, and may be subject to any applicable public funding requirements. (Ord. No. 1728, § 1(2.82.080), 12-10-2007) Sec. 2.05.1180. Functions and responsibilities of recognized neighborhood associations. A. All recognized neighborhood associations must meet and continue to maintain conformity with the minimum standards as established by this division in order to benefit from PROOFS Page 74 of 977 official recognition by the city and be eligible to elect members to the INC. Failure to meet and continue to maintain conformity with the minimum standards as established by this division may result in the association's loss of official recognition by the city. B. Recognized neighborhood associations are autonomous organizations. Although the city may provide limited forms of financial aid to officially recognized neighborhood associations, recognized neighborhood associations are not considered agencies of the city. Responsibilities of a recognized neighborhood association include: 1. Becoming a self-sustaining organization that will further the purpose and intent of this division. 2. Making a good faith effort to recruit a diverse and representative group of residents, property owners, business and nonprofit representatives to participate in and perpetuate the governance and operation of the neighborhood association. 3. Providing effective community participation in government by defining, articulating and addressing neighborhood problems and concerns; by advising, consulting and cooperating with the various city departments, boards, councils and task forces; and by notifying and relaying information to residents, property owners, business and nonprofit representatives and the city liaison regarding matters that affect their respective neighborhoods. 4. Providing community input on the efficiency and efficacy of the city's delivery of services. 5. Making recommendations concerning particular actions, policies, plans, programs, projects, and other matters of the city commission and to any city department or agency where the livability of the neighborhood is affected, including, but not limited to, land use, housing, community facilities, human services, social and recreational programs, open space and parks, traffic and transportation, environmental quality, and public safety. 6. Establishing and following clear processes for reporting the association's position on matters affecting their respective neighborhoods to the city. 7. Assisting city staff in determining priority needs affecting the quality of life for the neighborhood and the overall community; 8. Undertaking and managing projects to benefit the recognized neighborhood association as may be agreed upon by the recognized neighborhood association membership or contracted with the city and/or other public agencies. 9. Maintaining current board rosters and providing the city liaison with the names, addresses, email addresses and phone numbers of each of the officers on their board who will receive all notices and other mailings from the city. 10. Electing or appointing, in accordance with recognized neighborhood association bylaws, an INC delegate and an alternate. 11. Submission, by each recognized neighborhood association, of an annual report to the city liaison. The report shall be submitted no later than June 30 of each year. This provision does not pertain to recognized neighborhood associations in existence less than six months prior to the June 30 deadline. Each report shall include, at a minimum, the following information: a. Names, addresses, email addresses and telephone numbers of contact persons and officers elected and/or appointed at the annual election; b. Dates of neighborhood meetings held during the previous calendar year; PROOFS Page 75 of 977 c. Any changes to the approved bylaws, including changes in neighborhood boundaries; d. A completed annual neighborhood survey form provided by the city; and e. Minutes from the organization's annual meeting. C. The requested information will aid in maintaining updated listings of recognized neighborhood associations. D. Additionally, an annual report affords the city the opportunity to review annual changes in recognized neighborhood associations that may threaten their recognized status as defined in this division. If a recognized neighborhood association does not return the requested information, the city liaison will advise the INC. The INC will determine whether the city will continue to formally recognize the neighborhood association. E. If any recognized neighborhood association's annual report is lacking any of the minimum requirements, the INC will review, comment, and re-evaluate the recognized status of the neighborhood association. (Ord. No. 1728, § 1(2.82.090), 12-10-2007) Sec. 2.05.1190. Accountability. A. Recognized neighborhood associations shall be accountable to the membership of the neighborhood which they represent. B. They shall be responsible for notifying the membership about meetings, elections, and other association events. C. All meetings of a recognized neighborhood association shall be open to the public; subject to the state's open meeting laws. D. A recognized neighborhood association shall make a good faith effort to seek the views of the people affected by proposed policies or actions and shall consider all proposed options before adopting any final recommendations or actions. E. INC delegates will serve as liaison between city staff and the recognized neighborhood association, and shall be selected by the neighborhood association membership in accordance with neighborhood association bylaws. F. All recognized neighborhood associations shall establish procedures, through the adoption of bylaws, which shall at a minimum provide that the general membership of such associations have the ability to register support or opposition to any issue, action or proposed action by the city including, but not limited to, holding of a special meeting, if necessary, to address such issue or action. When a recognized neighborhood association presents its official position on an issue, action or proposed action to the city, it shall identify how the general neighborhood association membership was contacted, and the vote tally for and against the position asserted by the association. 1. The recognized neighborhood association shall establish and follow a clear method for reporting to the city actions which accurately reflect the neighborhood's position. When a recognized neighborhood association presents its official position on an issue to the city, it shall be prepared to identify whether the decision was reached by the board, a poll of the general membership, or by a vote at a general membership meeting, and the vote for and against the position. 2. The consensus view of a dissenting minority or minorities on any issue considered shall be recorded and transmitted along with any recommendations made by a recognized neighborhood association to the city. PROOFS Page 76 of 977 G. Nothing in this division shall be considered as a limitation of any citizen's rights to participate directly in the decision-making process of the city government. (Ord. No. 1728, § 1(2.82.100), 12-10-2007) Sec. 2.05.1200. Meetings. A. Recognized neighborhood associations shall hold, at a minimum, an annual meeting. Recognized neighborhood associations shall set forth meeting requirements in their bylaws. B. Recognized neighborhood associations shall hold meetings for all members within their boundaries. These meetings shall be open to the public, subject to the state's open meeting laws. (Ord. No. 1728, § 1(2.82.110), 12-10-2007) Sec. 2.05.1210. InterNeighborhood Council (INC). A. The INC is a representative organization to which the city may provide limited forms of financial aid. The INC is an advisory board to the city commission. B. The INC shall be composed of one delegate selected by each recognized neighborhood association. 1. A vacancy on the council shall be filled only by the affected recognized neighborhood association. 2. Each recognized neighborhood association shall also select one alternate to represent the association in the event the selected delegate is unable to participate in the INC. 3. A delegate to the INC unable to attend an INC meeting may provide written authorization for another delegate to vote on the delegate's behalf on any matter that may come before the INC at that meeting. The written proxy authorization shall state the name of the authorized delegate and be signed and dated by the absent delegate. A proxy vote will be fully documented in the minutes of the meeting. C. The INC shall provide a forum for recognized neighborhood associations to come together, share information and make recommendations to the city. The INC shall also provide a forum for non-recognized neighborhood associations, neighborhood groups and city agencies to communicate with recognized and non-recognized neighborhood organizations and groups. D. The INC shall establish and follow a clear method for reporting to the city, actions which accurately reflect neighborhood positions. When the INC presents its official position on an issue to the city, it shall be prepared to identify whether the decision was reached by consensus or majority vote of the INC, a poll of the general membership of each recognized neighborhood association, or by a vote at recognized neighborhood association general membership meetings. In each instance, INC shall also identify the vote totals for and against the position. E. The INC shall meet on a regular basis to address city-wide concerns and foster dialogue between neighborhoods. F. The INC shall adopt and maintain bylaws to govern the conduct of their business. These bylaws shall be approved by a two-thirds vote of the INC memberships and subsequently ratified by city commission. The bylaws shall contain, but are not limited to, the following items: 1. Mission and/or vision; 2. Authorization; 3. Officer elections, terms and vacancies; PROOFS Page 77 of 977 4. Voting procedures; 5. Attendance policy; 6. Conflict of interest; and 7. City liaison duties. (Ord. No. 1728, § 1(2.82.120), 12-10-2007) Sec. 2.05.1220. Responsibilities of the city. A. The city liaison shall: 1. Provide notice to INC delegates regarding all applications received by the department of planning and community development where notification guidelines require that notice be posted on site, published in the local newspaper or mailed first class. Notification to the INC delegates shall be sent via telephone, mail, email, or facsimile concerning all public hearings associated with the application except those that have been postponed to a date certain announced at a prior hearing. 2. Provide notice to INC delegates regarding any proposed change to city property which requires public notification, including but not limited to change in use, sale, bids and/or leases. 3. Respond within ten working days, or a minimum of five days prior to any related public hearing, whichever is sooner, when contacted by an elected officer of a recognized neighborhood association or the INC with a request for information regarding any city project. 4. Review recognition requests from non-recognized neighborhood associations and/or neighborhood groups and provide a checklist of minimum requirements for recognition, a copy of this division and an updated City of Bozeman Neighborhood Boundaries map and assist non-recognized neighborhood associations and/or neighborhood groups in determining whether compliance with the requirements for recognition have been satisfied. 5. Forward a notice of noncompliance to any recognized neighborhood association failing to comply with any requirements or provisions set forth in this division. a. A recognized neighborhood association shall have 90 days from the date of the notice to come into compliance with the minimum standards established by this division and provide satisfactory evidence of such compliance to the city liaison. b. Should a recognized neighborhood association fail to provide such evidence, the INC shall remove said association from the list of recognized neighborhood associations immediately upon the expiration of the 90-day review period. A recognized neighborhood association may request one 90 day extension in order to obtain compliant status and provide satisfactory evidence of such compliance to the city liaison. Extension requests should be forwarded to the city liaison within 30 days of the expiration of the original 90-day term. c. The INC shall vote on a request from the recognized neighborhood association for an extension of time to provide evidence of compliance with minimum standards at the earliest possible meeting date and notify the association of any decision within seven days. If a request for an extension of time is denied, the terms of the original 90-day compliance period shall be PROOFS Page 78 of 977 enforced. Should the request for an extension be granted, the extension will commence on the day following the expiration of the original 90-day term. d. After expiration of the 90-day review period and extensions, if any, the INC will be entitled to revoke the recognized status of a neighborhood association should said association fail to provide evidence that the minimum standards for recognition established by this division have been satisfied. Said association, under non-recognized status, shall forfeit a delegate to the INC and be removed from all official city mailing lists and will lose the opportunity to receive services rendered to recognized neighborhood associations until such time as said neighborhood association re-activates its recognized status by providing evidence that the minimum standards of neighborhood recognition established by this division have been satisfied. 6. Provide each recognized neighborhood association with a list of current city departments, their respective department heads, including corresponding telephone numbers and provide such information on the city's official internet website. 7. Publish a neighborhoods newsletter at least quarterly, so that each recognized neighborhood association may communicate pertinent information and increase communication between recognized neighborhood associations, their memberships and the city. 8. Create and maintain an updated neighborhood directory, which lists the contact information of the recognized neighborhood association's elected officers and/or other recognized neighborhood association's designated officers. 9. Provide support services to recognized neighborhood associations, including assistance with general communications, newsletters, grant writing, activity planning, public relations, outreach efforts, general information and referral, and other technical assistance which may include instructions on the use of electronic notification systems. (Ord. No. 1728, § 1(2.82.130), 12-10-2007) Sec. 2.05.1230. Responsibilities of individuals or entities submitting an application to the department of planning and community development. A. In order for the city liaison to effectively perform their duties executing the intent and purpose of this division, as defined in section 2.05.1110, the following shall be performed: 1. As part of any application to the department of planning and community development, the applicant shall provide written notice via certified mail, email, facsimile transmission, and/or personal delivery to the city liaison if notification guidelines require that notice be posted on site, published in the local newspaper or mailed first class. 2. Such notice shall contain a complete set of application materials as submitted to the department of planning and community development. B. Failure to provide proof of such mailing via certified mail, email and/or facsimile transmission report to the most recent city liaison address, email address and/or fax number of record, or an affidavit attesting hand delivery, shall result in an incomplete application. (Ord. No. 1728, § 1(2.82.140), 12-10-2007) Sec. 2.05.1240. Administration and enforcement. A. The city liaison shall administer and enforce the responsibilities of the city as PROOFS Page 79 of 977 defined by this division in section 2.05.1220. The city liaison may be provided with the assistance of such other persons as the city manager may supervise and those assistants shall have essentially the same responsibilities as directed by the city manager. The city liaison may consult with other persons having expertise in relevant subject areas inasmuch as their opinion is necessary for the administration of this division. B. In the event that the city liaison finds, or is notified, that requirements or provisions of this division are being violated by a recognized neighborhood association, the city liaison shall conduct a fact-finding study and attempt to determine the nature of the violation, if any. Once determined, the city liaison shall make initial findings regarding the alleged violation and report those findings and supporting evidence to the INC for review. Upon review, the INC may issue a notice of noncompliance and may take the action set forth in section 2.05.1220.A.5. C. In the event that the city liaison finds, or is notified, that requirements or provisions of this division have been violated by the INC, the city liaison shall conduct a fact-finding study and attempt to determine the nature of the violation, if any. Once determined, the city liaison shall make initial findings regarding the alleged violation and report those findings and supporting evidence to the city commission for review. Upon review, the city commission may issue a notice of noncompliance and require compliance within a reasonable amount of time. (Ord. No. 1728, § 1(2.82.150), 12-10-2007) Sec. 2.05.1250. Review authority. A. The city commission reserves the right to review and require revisions to any and all sections set forth in this division. B. Upon review, the INC shall have the authority to affirm, modify or reverse initial administrative findings made by the city liaison. C. Upon review, the city commission shall have the authority to affirm, modify, or reverse the findings of the INC. The affirmation, modification or reversal of an INC decision by the city commission shall be final and binding and shall be set forth in the form of a commission resolution. D. Notice of the INC review, including date, time and location shall be delivered via certified mail to the recognized neighborhood association's officers or board of directors on file with the city. E. The INC review shall be open to the public and shall allow for testimony on all relevant aspects of the alleged violation, proposed action and applicable policies and standards. F. The INC may establish time limits on testimony or other additional rules regarding the conduct of any hearing. G. Notice of the INC's decision or recommendation shall be delivered via certified mail to the address of the recognized neighborhood association's officers or board of directors on file with the city. H. Decisions of the INC may be appealed by a recognized neighborhood association and shall be submitted to the city commission for review. Any appeal of an INC review decision shall be in writing and set forth the specific provisions of the INC review decision being appealed. Written appeals must be received by the city liaison within 14 days of the date of reception of the notice of decision of the INC. Any INC decision not appealed to the city commission within the required timeframe shall be considered final and binding. I. In the event of appeal of an INC review decision, the city liaison shall forward the appeal, INC's written decision and the record of the proceedings of the INC hearing to the city commission within 14 days of receipt of the written appeal. Upon receipt of the appeal documents PROOFS Page 80 of 977 the commission shall conduct a review within a reasonable amount of time. (Ord. No. 1728, § 1(2.82.160), 12-10-2007) Secs. 2.05.1260--2.05.1390. Reserved. DIVISION 8. BEAUTIFICATION ADVISORY BOARD Sec. 2.05.1400. Creation. The city commission shall appoint a Bozeman beautification advisory board, hereinafter referred to as the "board," and designate the board to act as the advisory board to the city commission on matters relating to beautification projects in the Bozeman area. (Code 1982, § 2.84.010; Ord. No. 1360, § 1, 1993) Sec. 2.05.1410. Membership; meetings. A. The board shall consist of up to nine members to be appointed by the city commission. Members of this board shall serve three-year staggered terms. Each member may be reappointed without any limitation on the number of reappointments. Vacancies shall be filled in the same manner as original appointments for the balance of the term remaining. In addition to the appointed membership, the city historic preservation officer a member of the department of planning and community development shall serve as an ex-officio, nonvoting member. B. Persons of legal age may be appointed to the board. A majority of the board shall be residents of the city. Nonresident members of the board shall have some interest in the city by virtue of working in the city, owning property in the city, or entering the city frequently for any lawful purpose. C. The city shall pay only the expenses of the board which have been authorized by vote of the city commission prior to such expense being incurred. Members shall serve without compensation for their time and services. D. Meetings of the board shall be conducted in accordance with all applicable rules and regulations of the city and the adopted bylaws of the board. (Code 1982, § 2.84.020; Ord. No. 1360, § 1, 1993) Sec. 2.05.1420. Duties and responsibilities. A. The board shall have the following duties and responsibilities: 1. To identify, investigate and recommend community beautification projects and programs to the city commission, and to assist in their implementation once approved; 2. In coordination with the appropriate city staff persons, to investigate and pursue grants and other possible funding sources for beautification projects and forward recommendations to city staff and the city commission; and 3. To advise the city commission concerning actions related to the beautification of city- owned properties and facilities. 4. The board may have such other duties and responsibilities as the city commission, from time to time, may direct. (Code 1982, § 2.84.030; Ord. No. 1360, § 1, 1993) Sec. 2.05.1430. Authority. The actions of the board shall be advisory only and shall not constitute policy of the city and shall not be binding upon the city commission or upon the city. The city may adopt all or any part PROOFS Page 81 of 977 of any recommendation of the board, with or without any changes made by the city commission, as city policy. (Code 1982, § 2.84.040; Ord. No. 1360, § 1, 1993) Secs. 2.05.1440--2.05.1590. Reserved. DIVISION 9. ECONOMIC DEVELOPMENT COUNCIL Sec. 2.05.1600. Purpose and intent. The purpose and intent of this division is to provide for an economic development council consisting of business leaders, economic development leaders, and others; to advise the city commission on economic development issues and to review the implementation of the City of Bozeman Economic Development Plan as adopted by Resolution No. 4195. (Ord. No. 1784, § 2(2.86.010), 4-26-2010) Sec. 2.05.1610. Creation; powers, duties and authority; membership. A. Creation; powers, duties and authority. The city commission creates the economic development council (EDC) and authorizes the EDC to exercise any of the following powers and duties: 1. Advise the city commission on economic development issues. 2. Review the implementation of the City of Bozeman Economic Development Plan and provide related recommendations. 3. Adopt bylaws, subject to the approval of the city commission, for the operation of the board. 4. The council may have such other duties and responsibilities as the city commission, from time to time, may direct. 5. The actions of the council shall be advisory only and shall not constitute policy of the city and shall not be binding upon the city commission or upon the city. The city may adopt all or any part of any recommendation of the council, with or without any changes made by the city commission as city policy. B. Members; appointments and terms. 1. All appointments to the EDC shall be made by the city commission. 2. The majority of councilmembers shall be business leaders and economic development leaders. 3. Membership. a. There shall be seven members of the economic development council and there shall always be at least five but not more than seven members of the EDC, amendable from time to time by duly approved resolution of the city commission. The terms of the initial seven members shall be as follows. b. One member to serve for one year, two members to serve for two years, two members to serve for three years and two to serve for terms of four years from the date of their appointment. After initial terms, councilmembers shall serve three year staggered terms. Each member may be reappointed without any limitation on the number of reappointments. Vacancies shall be filled in the same manner as original appointments for the balance of the term remaining. 4. The city commission shall affirm one city commissioner to act as liaison between the PROOFS Page 82 of 977 council and commission. 5. A councilmember shall receive no compensation for the councilmember's service. Councilmembers shall be entitled to previously authorized expenses, including travel expenses, incurred during the discharge of duties. 6. Persons of legal age may be appointed to the council. A majority of the council shall be residents of the city. Nonresident members of the council shall have some interest in the city by virtue of working in the city or owning property in the city. 7. A councilmember may be removed by a majority vote of the city commission for any reason. C. Office of agency; staff support. The council shall maintain its records in the office of the city staff person designated to assist the council. The staff person so designated shall attend most meetings of the council and will be responsible to assist the council in the scheduling of meetings, preparation and distribution of agendas and meeting minutes and perform other supportive functions that may be considered reasonable in the execution of the duties of the council. The staff person may also serve as the liaison between the council, the city manager and the city commission. D. Meetings; election of officers. 1. The economic development council shall hold meetings as it deems necessary to execute its powers and duties as provided in this section. 2. The economic development council shall adopt bylaws enabling it to elect officers, set officer terms, and establish regular meeting times. E. Duration. The economic development council shall remain in effect as long as necessary to achieve the goal of the council. F. Ethics provisions. All council activities and members are subject to all other provisions of this Code, including article 3, division 4 of this chapter, pertaining to the code of ethics. G. State law applicable. All meetings of the council shall be subject to the state's open meeting laws and may not be held with less than 48 hours' notice. All written and electronic information shall be considered a public record and subject to disclosure pursuant to state law. (Ord. No. 1784, § 2(2.86.020), 4-26-2010) Secs. 2.05.1620--2.05.1740. Reserved. DIVISION 10. TAX INCREMENT FINANCING INDUSTRIAL DISTRICT BOARD* *State law reference—Urban Renewal Law, MCA 7-15-4201 et seq. Sec. 2.05.1750. Purpose and intent. The purpose and intent of this division is to provide for an advisory board of citizens of Bozeman, Montana to assist in the attraction and retention of secondary, value-adding industries including warehousing, distribution and transportation industries, and manufacturing that uses Montana timber, mineral, oil, gas, coal and agricultural resources in the production of products in the state. More specifically, this board of citizens will consult and advise the city commission regarding the Bozeman TIFID program. (Code 1982, § 2.88.010; Ord. No. 1337, § 1, 1991) Sec. 2.05.1760. Definitions. A. The following words, terms and phrases, when used in this division, shall have the PROOFS Page 83 of 977 meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Actual taxable value" means the taxable value of taxable property at any time, as calculated from the assessment role last equalized. 2. "Base taxable value" means the actual taxable value of all taxable property within an urban renewal area or industrial district prior to the effective date of a tax increment financing provision. This value may be adjusted as provided in MCA 7-15- 4287 or 7-15-4293. 3. "Incremental taxable value" means the amount, if any, by which the actual taxable value at any time exceeds the base taxable value of all property within a tax increment financing industrial district. 4. "Industrial district" or "tax increment financing industrial district" or "TIFID" means a tax increment financing industrial district created pursuant to article 6, division 7 of this chapter, and MCA 7-15-4299. 5. "Industrial infrastructure development project" means a project undertaken within or for an industrial district that consists of any or all of the activities authorized by MCA 7-15-4288. 6. "Tax increment" means the collections realized from extending the tax levies, expressed in mills, of all taxing bodies in which the industrial district or a part thereof is located against the incremental taxable value. 7. "Tax increment provision" means a provision for the segregation and application of tax increments as authorized by MCA 7-15-4282 through 7-15-4292. 8. "Taxes" means all taxes levied by a taxing body against property on an ad valorem basis. (Code 1982, § 2.88.020; Ord. No. 1337, § 2, 1991) Sec. 2.05.1770. Creation; powers and duties. A. The city commission creates the Bozeman Tax Increment Financing Industrial District (TIFID) Board and authorizes the TIFID board to exercise any of the following industrial district powers: 1. To undertake and carry out industrial infrastructure development projects as approved the city commission; 2. To disseminate industrial development information; 3. To advise the commission on the improving, clearing or preparing for development or redevelopment any real or personal property in the industrial district; 4. To effectuate industrial infrastructure development project plans; 5. To assist in conducting appraisals, title searches, surveys, studies, and other preliminary plans and work necessary to prepare for the undertaking of industrial infrastructure development projects; 6. To assist in the negotiation for the acquisition of land; 7. To study the closing, vacating, planning or replanning of streets, roads, sidewalks, ways, railroad spurs, sewer lines, sewer treatment facilities, waterlines, waterways, water treatment facilities, or other places and to make recommendations with respect thereto; 8. To make recommendations concerning the allocation of tax increment financing PROOFS Page 84 of 977 industrial district funds as appropriated by the city commission and as provided for in MCA 7-15-4288; 9. To perform such duties as the city commission may direct so as to make the necessary arrangements for the exercise of the powers and performance of duties and responsibilities entrusted to the city commission. (Code 1982, § 2.88.030; Ord. No. 1337, § 3, 1991) Sec. 2.05.1780. Members; appointment and terms. A. All appointments to the TIFID board will be made by the city commission. B. The TIFID board shall consist of at least five and not more than seven members with the initial terms as follows: one member appointed for one year, one for two years, two for three years, and the remainder for four years. Each appointment thereafter shall be for four years. C. Whenever possible, at least one board member will be selected from each of the following disciplines: real estate, economic development, commercial lending, and civil or environmental engineering. The remaining positions shall be at large. D. Each board member shall hold office until the board member's successor has been appointed and has qualified. E. A board member shall receive no compensation for the board member's services, but shall be entitled to previously authorized expenses, including travelling expenses, incurred in the discharge of the board member's duties. F. Any persons may be appointed as board members if they are residents of, property owners within, or gainfully employed by a business or firm located within the city. G. A board member may be removed for inefficiency, neglect of duty or misconduct in office. H. A majority of members must reside or own real property within the city. (Code 1982, § 2.88.040; Ord. No. 1337, § 4, 1991; Ord. No. 1339, § 1, 1991) Sec. 2.05.1790. Meetings; elections of officers. A. The TIFID board shall hold meetings as it deems necessary to execute its powers and duties as provided for in section 2.05.1770 and article 6, division 7 of this chapter. B. The TIFID board shall adopt bylaws enabling it to elect officers, set officer terms and establish regular meeting times. (Code 1982, § 2.88.050; Ord. No. 1337, § 5, 1991) Sec. 2.05.1800. Annual reports. The TIFID board shall file with the city commission, on or before March 31 of each year, a report of its activities for the preceding calendar year. (Code 1982, § 2.88.060; Ord. No. 1337, § 6, 1991) Secs. 2.05.1810--2.05.1940. Reserved. DIVISION 11. BUSINESS IMPROVEMENT DISTRICTS BOARDS OF TRUSTEES* *State law reference—Business improvement districts, MCA 7-12-1101 et seq. Sec. 2.05.1950. Purpose and intent. The purpose and intent of this division is to provide for boards of trustees for the several business improvement districts within the City of Bozeman created pursuant to title 7, chapter 12, PROOFS Page 85 of 977 part 11, Montana Code Annotated (MCA 7-12-1101 et seq.). The boards of trustees for each business improvement district shall have the powers enumerated herein with respect to the program for each business improvement district as described in article 6, division 8 of this chapter. Each board of trustees is a public body and shall comply with all laws of the state regarding notice and opportunity to be heard, open meetings, public participation, and maintenance of public records. (Ord. No. 1765, § 2(2.90.010), 8-10-2009) Sec. 2.05.1960. Bozeman Tourism Business Improvement District Board. A. Creation; powers and duties. The city commission creates the Bozeman Tourism Business Improvement District (BTIBD) board of trustees and authorizes the BTIBD board of trustees to exercise any of the following business improvement district powers, in conjunction with administration of the BTBID created pursuant to article 6, division 8 of this chapter: 1. Sue and be sued; 2. Enter into contracts to carry out the function of the BTBID; 3. Hire and terminate personnel needed for its purposes; 4. Provide adequate liability insurance for the affairs of the BTBID; 5. Promote private investment and business expansion in the BTBID; 6. Provide for the management and administration of the affairs of the BTBID; 7. Promote business activity by advertising, decorating, marketing, and promoting and managing events and other actions designed for the general promotion of business activities in the BTBID; 8. Perform such other functions as are necessary to carry out the purposes of this division and to further the objectives of the BTBID; 9. Adopt bylaws, subject to the approval of the city commission, for the operation of the board and develop procedures for the collection and maintenance of BTBID records and the protection of district members' trade secrets to the extent allowable by state law; and 10. Authorize the acquisition and disposal of real property upon the consent of the city commission. B. Members; appointments and terms. 1. All appointments to the BTBID shall be made by the city commission. 2. Upon creation, there shall be seven members of the board of trustees and there shall always be at least five but not more than seven members of the board of trustees for the BTBID, amendable from time to time by duly adopted resolution of the city commission. The terms of the initial seven members shall be as follows: three members to serve for terms of one, two, and three years, respectively, from the date of their appointments; two must be designated to serve for terms of four years from the date of their appointments. For a seven-member board of trustees, there must be two additional appointments for terms of two years and three years, respectively. 3. Each board member shall hold office until the board member's successor has been appointed and has qualified. 4. A board member shall receive no compensation for the board member's service. Board members shall be entitled to previously authorized expenses, including travelling expenses, incurred in the discharge of the board member's duties. PROOFS Page 86 of 977 5. Any persons may be appointed as board members but only if they are owners of real property subject to the jurisdiction of the BTBID or a formally appointed representative of a real property owner. 6. A board member may be removed by the city commission for inefficiency, neglect of duty, or misconduct, in office. C. Director. The director of BTBID board of trustees shall be the duly appointed executive director of the Bozeman Convention and Visitors Bureau and shall serve in an advisory and administrative role for the board of trustees in the administration of the affairs of the BTIBD. D. Meeting; election of officers. 1. The BTBID board of trustees shall hold meetings as it deems necessary to execute its powers and duties provided for in subsection A of this section and article 6, division 8 of this chapter. 2. The BTBID board of trustees shall adopt bylaws enabling it to elect officers, set officer terms, and establish regular meeting times. E. Annual budget, work plan, and report/recommendation on levy. 1. Each year, at a date and in a format established by the city director of finance, the board of trustees shall submit to the city commission a report of its activities for the preceding year. The report shall contain an audit of the district's finances. In addition, the board shall, at the same time, submit to the city commission, a work plan and budget for the ensuing fiscal year pursuant to the requirements of title 7, chapter 12, part 11, Montana Code Annotated (MCA 7-12-1101 et seq.). The city commission shall have final authority to approve the work plan and budget. 2. At the time the board of trustees submits a report, annual budget, and work plan, the board shall also submit a recommendation to the city commission on a method of levying an assessment on the property within the BTBID pursuant to the requirements of title 7, chapter 12, part 11, Montana Code Annotated (MCA 7-12- 1101 et seq.). If the method of assessment is to be different than that described in section 2.06.1460.F, the commission must adopt an ordinance amending said section. 3. The work plan and budget shall comply with the provisions and procedures of section 2.06.1460.G. F. Duration. The board of trustees for the BTBID shall remain in effect as long as the BTBID remains in effect. G. Ethics provisions. All board activities and members are subject to all other provisions of this Code, including article 3, division 4, pertaining to code of ethics. H. Liability/property insurance required. The board of trustees shall obtain liability insurance coverage, at the sole expense of the BTBID, insuring the BTBID, the board of trustees, and the City of Bozeman against legal liability for personal injury and property damage in an amount not less than the liability and property exposure limits established for governmental entities in title 2, chapter 9, part 1, of Montana Code Annotated (MCA 2-9-101 et seq.). (Ord. No. 1765, § 2(2.90.020), 8-10-2009) Sec. 2.05.1970. Bozeman Downtown Business Improvement District Board. A. Creation; powers and duties. The city commission creates the Bozeman Downtown Business Improvement District (BDBID) board of trustees and authorizes the BDBID Board of Trustees to exercise any of the following business improvement district powers, in conjunction with administration of the BDBID created pursuant to article 6, division 8 of this chapter: PROOFS Page 87 of 977 1. Sue and be sued; 2. Enter into contracts to carry out the function of the BDBID; 3. Hire and terminate personnel needed for its purposes; 4. Provide adequate liability insurance for the affairs of the BDBID; 5. Promote private investment and business expansion in the BDBID; 6. Provide for the management and administration of the affairs of the BDBID; 7. Promote business activity by advertising, decorating, marketing, and promoting and managing events and other actions designed for the general promotion of business activities in the BDBID; 8. Perform such other functions as are necessary to carry out the purposes of this division and to further the objectives of the BDBID; 9. Adopt bylaws, subject to the approval of the city commission, for the operation of the board and develop procedures for the collection and maintenance of BDBID records and the protection of district members' privacy and trade secrets to the extent allowable by state law; and 10. Authorize the acquisition and disposal of real property upon the consent of the city commission. B. Members; appointments and terms. 1. All appointments to the BDBID shall be made by the city commission. 2. Upon creation, there shall be seven members of the board of trustees and there shall always be at least five but not more than seven members of the board of trustees for the BDBID, amendable from time to time by duly adopted resolution of the city commission. The terms of the initial seven members shall be as follows: three members to serve for terms of one, two, and three years, respectively, from the date of their appointments; two must be designated to serve for terms of four years from the date of their appointments. For a seven-member board of trustees, there must be two additional appointments for terms of two years and three years, respectively. 3. Notwithstanding subsection B.2 of this section, the existing terms of all current board of trustee positions shall continue uninterrupted. 4. Each board member shall hold office until the board member's successor has been appointed and has qualified. 5. A board member shall receive no compensation for the board member's service. Board members shall be entitled to previously authorized expenses, including traveling expenses, incurred in the discharge of the board member's duties. 6. Any persons may be appointed as board members but only if they are owners of real property subject to the jurisdiction of the BDBID or a formally appointed representative of a real property owner. 7. A board member may be removed by the city commission for inefficiency, neglect of duty, or misconduct, in office. C. Meeting; election of officers. 1. The BDBID board of trustees shall hold meetings as it deems necessary to execute its powers and duties provided for in subsection A of this section and article 6, division 8 of this chapter. PROOFS Page 88 of 977 2. The BDBID board of trustees shall adopt bylaws enabling it to elect officers, set officer terms, and establish regular meeting times. D. Annual budget, work plan/recommendation on assessment/financial report. 1. The board of trustees shall annually complete a financial report in compliance with the requirements of title 2, chapter 7, part 5, Montana Code Annotated (MCA 2-7- 501 et seq.) and provide a copy to the city commission. 2. Each year, at a date and in a format established by the director of finance, the board of trustees shall submit to the city commission a work plan and budget for the ensuing fiscal year pursuant to the requirements of title 7, chapter 12, part 11, Montana Code Annotated (MCA 7-12-1101 et seq.). The city commission shall have final authority to approve the work plan and budget. 3. At the time the board of trustees submits an annual budget and work plan, the board shall also submit a recommendation to the city commission on a method of levying an assessment on the property within the BTBID pursuant to the requirements of title 7, chapter 12, part 11, Montana Code Annotated (MCA 7-12- 1101 et seq.). If the method of assessment is to be different than that described in section 2.06.1460.F, the commission must adopt an ordinance amending said section. 4. The work plan and budget shall comply with the provisions and procedures of section 2.06.1460.G. E. Duration. The board of trustees for the BDBID shall remain in effect as long as the BDBID remains in effect. F. Ethics provisions. All board activities and members are subject to all other provisions of this Code, including article 3, division 4 of this chapter, pertaining to the code of ethics. G. Liability/property insurance required. The board of trustees shall obtain liability insurance coverage, at the sole expense of the BDBID, insuring the BDBID, the board of trustees, and the city against legal liability for personal injury and property damage in an amount not less than the liability and property exposure limits established for governmental entities in title 2, chapter 9, part 1, Montana Code Annotated (MCA 2-9-101 et seq.). (Ord. No. 1790, § 1(2.90.030), 7-12-2010) Secs. 2.05.1980--2.05.2090. Reserved. DIVISION 12. TREE ADVISORY BOARD Sec. 2.05.2100. Purpose. The purpose and intent of this division is to provide for an advisory board of citizens of Bozeman, Montana to assist or advise in the promotion of urban forestry; the education of the general public toward the value, benefits and necessity of urban trees; the promotion of and use of professionally recognized arboricultural practices; the recommendation of programs and policies dealing with planting, maintenance and removal of trees, shrubs and other plants and other tree- related matters; and the development and periodic review of the master street tree plan. (Code 1982, § 2.92.010; Ord. No. 1364, § 1, 1993) Sec. 2.05.2110. Definitions. A. For the purpose of this division, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular and words in PROOFS Page 89 of 977 the singular include the plural. The word "shall" is mandatory and not merely directory. 1. "Public way" means all city property deeded or recorded as streets, roads, boulevards, alleys, sidewalks and parking strips. 2. "Public area" means Sunset Hills Cemetery, public ways, city parks and all other lands owned, leased, managed or occupied by the city. (Code 1982, § 2.92.020; Ord. No. 1364, § 1, 1993) Sec. 2.05.2120. Creation.53 A. The city commission creates the Bozeman Tree Advisory Board, hereinafter referred to as "BTAB." BTAB shall act as an advisory board to the city commission. BTAB shall have the following duties and responsibilities: 1. Give guidance and advice to the city in determining the needs of the city's tree program; __ Conduct street tree inquests pursuant to Chapter 12.30; 2. Consider and recommend for adoption to the city commission, an arboricultural specifications manual and revision as necessary; __ Assist in the selection of applicants for cost-share tree planting and tree transplanting from the city nursery for use in the public way only; 3. Make recommendations as to the type and kind of trees to be planted upon the city streets and public areas; 4. Assist in conducting appraisals, title searches, surveys, studies and other preliminary plans and work necessary to prepare for the establishment of the master street tree plan and recommend an urban forestry plan and the master street tree plan to the city commission for its acceptance; __ Study the closing, vacating, planning or replanning of public ways, streets, roads, sidewalks, railroad spurs, sewer lines, and make recommendations with respect to urban forestry; 5. Periodically review master street tree plan and recommend changes to the city commission; 6. Work with other appropriate boards to update the city of Bozeman street tree and park tree inventory; and 7. Perform such duties and responsibilities as the city commission from time to time may direct. (Code 1982, § 2.92.030; Ord. No. 1364, § 1, 1993) Sec. 2.05.2130. Membership. A. BTAB shall consist of five voting members, to be appointed by the city commission. Members shall serve two years each, provided that the members initially appointed shall be appointed two for one year and three for two years so they will serve staggered terms. B. Whenever possible, two of the members shall be from the following disciplines: real estate, commercial lending, civil or environmental engineering, or landscape architecture or construction. 53 Note changes requested by city staff. PROOFS Page 90 of 977 C. Each member shall hold office until the member's successor has been appointed and has qualified, except as provided in subsection F. of this section. D. A member shall receive no compensation for the member's services but shall be entitled to previously authorized expenses, including traveling expenses incurred in the discharge of the member's duties. E. Members shall be residents of the city, own property within the city, or be gainfully employed within the city. F. A member will be removed for inefficiency, neglect of duty, misconduct in office or three unauthorized absences from regularly scheduled board meetings. G. The city manager, or a designee, shall be an ex officio, nonvoting member of the board. The city manager or designee shall keep the board informed as to city policies and city budget affecting BTAB, and make available to them any information which the city manager or designee deems pertinent. (Code 1982, § 2.92.040; Ord. No. 1364 § 1, 1993) Sec. 2.05.2140. Meetings. A. BTAB shall hold meetings as it deems necessary to execute its duties and responsibilities but not less often than quarterly. B. Meetings shall be conducted in accordance with all applicable rules and regulations of the city of Bozeman and the adopted and approved bylaws of BTAB. (Code 1982, § 2.92.050; Ord. No. 1364, § 1, 1993) Sec. 2.05.2150. Annual reports. BTAB shall file with the city commission, on or before March 31 of each year, a report of its activities for the preceding calendar year. (Code 1982, § 2.92.060; Ord. No. 1364, § 1, 1993) Secs. 2.05.2160--2.05.2290. Reserved. DIVISION 13. SENIOR CITIZENS' ADVISORY BOARD Sec. 2.05.2300. Creation. The city commission shall appoint a Bozeman Senior Citizens' Advisory Board, and designate the senior citizens' advisory board to act as the advisory board to the city commission on matters relating to senior citizen issues. (Code 1982, § 2.96.010; Ord. No. 1521, § 1, 2000; Ord. No. 1748, § 1(2.96.010), 10-6-2008) Sec. 2.05.2310. Membership; meetings. A. The senior citizens' advisory board shall consist of seven members, appointed by the city commission. Unless prohibited by the bylaws, each member may be reappointed without limitation on the number of reappointments. Members of the senior citizens' advisory board shall serve two-year staggered terms. Vacancies shall be filled in the same manner as original appointments for the balance of the term remaining. B. A minimum of five members shall reside within the city limits. Nonresident members of the senior citizens' advisory board shall have some interest in the city by virtue of working in the city, owning property in the city, or entering the city frequently for any lawful purpose. C. The city shall pay only the expenses of the senior citizens' advisory board which PROOFS Page 91 of 977 have been authorized by vote of the city commission prior to said expense being incurred. Members shall serve without compensation for their time and services. D. Meetings of the senior citizens' advisory board shall be conducted in accordance with all applicable rules and regulations of the city and the adopted bylaws of the board. (Code 1982, § 2.96.020; Ord. No. 1521, § 1, 2000; Ord. No. 1748, § 1(2.96.020), 10-6-2008) Sec. 2.05.2320. Duties and responsibilities. A. The senior citizens' advisory board shall have the following duties and responsibilities: 1. Senior citizen issues. The senior citizens' advisory board shall make recommendations concerning all pertinent issues regarding the health, welfare, and quality of life for all senior citizens in the Bozeman area. 2. In order to do this, the senior citizens' advisory board must work closely with all other agencies located in the county whose primary concern is senior citizen issues. 3. The senior citizens' advisory board will make presentations to the commission or the city manager, or his designee regarding these issues and their recommendations, if any, regarding these issues. (Code 1982, § 2.96.030; Ord. No. 1521, § 1, 2000; Ord. No. 1748, § 1(2.96.030), 10-6-2008) Sec. 2.05.2330. Authority. The actions of the senior citizens' advisory board shall be advisory only and shall not constitute policy of the city and shall not be binding upon the city commission or upon the city. The city may adopt all or any part of any recommendation of the senior citizens' advisory board, with or without any changes by the city commission, as city policy. (Code 1982, § 2.96.040; Ord. No. 1521, § 1, 2000; Ord. No. 1748, § 1(2.96.040), 10-6-2008) Secs. 2.05.2340--2.05.2490. Reserved. DIVISION 14. BICYCLE ADVISORY BOARD Sec. 2.05.2500. Creation. The city commission shall appoint a Bozeman Area Bicycle Advisory Board, hereinafter referred to as "board," and designate the board to act as the advisory board to the city commission on matters relating to enhanced bicycle circulation, community-wide bicycle education and safety programs, and other matters relating to bicycling in the Bozeman area. (Ord. No. 1594, § 1(2.98.010), 4-28-2003; Ord. No. 1795, § 1(2.78.010), 12-13-2010) Sec. 2.05.2510. Membership. A. The bicycle advisory board shall consist of up to 11 voting members and one non- voting liaison to be appointed by the city commission. One member shall be a student of Montana State University. One member representing the county may be recommended by the county commission and appointed by the city commission. One additional non-voting liaison shall be a student of Bozeman High School. Members of this board shall serve two-year staggered terms. Each member may be reappointed without any limitation on the number of reappointments. Vacancies shall be filled in the same manner as original appointments for the balance of the term remaining. B. With the exception of the non-voting high school liaison, only persons of legal age may be appointed to the board. High school representatives under age 18 must provide a signed consent from a legal guardian stating they may participate in board activities. A majority of the PROOFS Page 92 of 977 board shall be residents of the city. Nonresident members of the board shall have some interest in the city by virtue of working in the city, owning property in the city, or entering the city frequently for any lawful purpose. In addition, the members should be knowledgeable of bicycling and/or traffic safety in the Bozeman area. C. The city shall pay only the expenses of the board which have been authorized by vote of the city commission prior to said expense being incurred. Members shall serve without compensation for their time and services. (Ord. No. 1594, § 1(2.98.020), 4-28-2003; Ord. No. 1795, § 1(2.78.020), 12-13-2010) Sec. 2.05.2520. Meetings. Meetings of the bicycle advisory board shall be conducted in accordance with all applicable rules and regulations of the city and the adopted bylaws of the board. (Ord. No. 1594, § 1(2.98.030), 4-28-2003; Ord. No. 1795, § 1(2.78.030), 12-13-2010) Sec. 2.05.2530. Duties and responsibilities. A. The bicycle advisory board shall have the following duties and responsibilities: 1. The board shall provide advice and recommendations to the city commission on matters before the city commission which may have an impact on bicycling, insofar as it may relate to usage of public streets and other public ways by bicycles. 2. The board shall provide advice and recommendations to the city commission regarding bicycling issues pertaining to the Parks, Open Space and Trails Master Plan and the Greater Bozeman Area Transportation Plan. 3. The board may organize, sponsor or participate in events with the aim to increase cycling participation, promote safety and educate the community. 4. The board may have such other duties and responsibilities as the city commission may, from time to time, direct. (Ord. No. 1594, § 1(2.98.040), 4-28-2003; Ord. No. 1795, § 1(2.78.040), 12-13-2010) Sec. 2.05.2540. Authority. The actions of the bicycle advisory board shall be advisory only and shall not constitute policy of the city and shall not be binding upon the city commission or upon the city. The city may adopt all or any part of any recommendation of the board, with or without any changes made by the city commission, as city policy. (Ord. No. 1594, § 1(2.98.050), 4-28-2003; Ord. No. 1795, § 1(2.78.050), 12-13-2010) ARTICLE 6. FINANCE* *State law reference—Financial administration and taxation, MCA 7-6-101 et seq.; debt management, MCA 7-7-101 et seq. ; taxation, MCA 15-1-101 et seq. PROOFS Page 93 of 977 DIVISION 1. GENERALLY Sec. 2.06.010. Transfer of funds; when authorized.54 The commission shall have power to transfer funds or moneys collected under the general levy, or for fees, licenses or fines, from any fund into which they may have been paid, to any other fund; provided, however, there shall be a surplus in the fund from which such transfer is made. (Code 1982, § 3.08.010) Secs. 2.06.020--2.06.140. Reserved. DIVISION 2. BUDGET Sec. 2.06.150. Budget administration and oversight. A. Responsibilities of the city commission. 1. To amend the budget, as necessary. 2. To review budget status reports, as presented. 3. To review accounts payable listings, as presented. B. Responsibilities of the city manager. 1. To execute the budget that has been adopted by the commission, in accordance with section 2.06.160. 2. To propose and schedule budget amendments, as necessary. 3. To report to the commission on the financial condition of the city and the status of the budget, according to the methods described in section 2.06.170. (Ord. No. 1729, § 1(3.30.010), 11-26-2007) Sec. 2.06.160. Budget operating guidelines. A. Once the approved budget has been adopted, the city manager has the authority to administer all city accounts, in accordance with the approved budget. Within the any fund, the city manager may re-allocate appropriation authority among line items as long as the total appropriation amount is not increased. B. In addition, the city commission hereby delegates appropriation and budget amendment authority to the city manager for the expenditures from the following funds: debt service funds; fee-based budgets; trust funds; federal, state and private grants accepted and approved by the city commission; special assessments; moneys borrowed during the year; proceeds from sale of land; and funds for gifts or donations. C. Through the annual appropriation resolution each year, the city commission will authorize and re-appropriate the unexpended balance of capital improvement program items and building repair and maintenance items previously budgeted which have not been completed. (Ord. No. 1729, § 1(3.30.020), 11-26-2007) Sec. 2.06.170. Budget status reporting. A. The city manager will compile the following reports and make them available to the commission, city departments and the public: 54 I question the necessity of sections like this where the commission grants itself powers. Either they have the power under state law and the Charter, or they don’t. Keep. PROOFS Page 94 of 977 1. Weekly accounts payable listings by account. 2. Monthly budget-to-actual expenditure report. 3. Quarterly summary of revenues and expenditures report. (Ord. No. 1729, § 1(3.30.030), 11-26-2007) Sec. 2.06.180. Minimum level of budgeted general fund unreserved fund balance. The city manager will recommend and the commission will adopt an approved budget that results in a year-end general fund unreserved fund balance that of no less than 16 2/3 percent of estimated general fund revenues. If the commission desires to adopt or amend the budget in a way that decreases the general fund unreserved fund balance to a level below 16 2/3 percent of estimated general fund revenues, they may do so after holding a separate public hearing to state why it is in the best interest of the city to do so. At no time may a budget be adopted or amended that results in a year-end general fund unreserved fund balance of less than five percent of estimated general fund revenues. This limit does not apply in case of an emergency, pursuant to state law. (Ord. No. 1729, § 1(3.30.040), 11-26-2007; Ord. No. 1787, § 1(3.30.040), 5-17-2010) Secs. 2.06.190--2.06.340. Reserved. DIVISION 3. TAX ABATEMENT Sec. 2.06.350. Intent55. The intent and purpose of the tax abatement certificate of appropriateness is to encourage the appropriate rehabilitation, restoration, and preservation of historic properties which otherwise would not have been so carefully preserved. It is recognized that a grant of tax abatement is a discretionary act by the city commission. Tax abatement is to reward extraordinary efforts in preservation and not minimal compliance with mandatory standards. (Ord. No. 1744, § 1(3.30.010), 10-6-2008) Sec. 2.06.360. Authority. A. Pursuant to MCA 15-24-1601 through 15-24-1608, the city commission by this division approves the tax benefits as set forth in said statutes for those improvements made by restoration, rehabilitation, or expansion of certified historic commercial or residential properties or qualifying new construction within an historic district which meets the design criteria during the construction period, which is not to exceed 12 months, and for up to five years56 following completion of said the construction, in those situations where such improvements preserve certified historic commercial or residential properties, or encourage appropriate new construction meeting the design criteria to be architecturally compatible within the historic districts. B. The tax abatement is limited to 100 percent of the increase in taxable value caused by the rehabilitation, restoration, expansion or new construction and applies to only those properties which do not receive any other tax exemption or special evaluation provided by state law during the period of abatement. (Ord. No. 1744, § 1(3.30.020), 10-6-2008) 55 I assume that you did not mean to repeal the above material. That is correct. 56 12 months and five years equals six years? Please clarify this language. Please leave the edits as shown. This provision is adopted straight from state statute. PROOFS Page 95 of 977 Sec. 2.06.370. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Construction period" as used herein shall mean a period of time from the date of issuance of the required building permit until the project is substantially completed or a period of 12 months from the date of issuance of said building permit, whichever period is shorter. 2. "Qualifying new construction" as used herein shall mean construction which satisfies the requirements of section 2.06.390.A.3, 57BMC. (Ord. No. 1744, § 1(3.30.030), 10-6-2008) Sec. 2.06.380. Procedures. A. The owner of the property must comply with the provisions and standards of this section and section 2.06.390, and chapter 38, article XVI, in order to be considered for tax abatement. Failure to demonstrate successful compliance with the requirements disqualifies a property from being awarded tax abatement, but does not prohibit development with a certificate of appropriateness otherwise approved under chapter 38, article XVI: 1. The owner of the property is solely responsible for supplying to the Bozeman Historic Preservation Advisory Commission and the city commission all information and documents necessary to evaluate the project. If sufficient information and documentation is not supplied by the owner for consideration to make an informed decision, the application will be denied. 2. The city commission hereby designates the Bozeman Historic Preservation Advisory Board as its local review board and hereby directs said board to establish an application and review process to certify eligible properties as specified in MCA 15- 24-1604 and which must include, but is not limited to, the design review criteria based on the Secretary of Interior's Standards for Rehabilitation of Historic Properties or other standards approved by the State Historic Preservation Office. The established review process shall be integrated with the certificate of appropriateness review authorized in chapter 38, article XVI. 3. The local review board shall recommend approval or denial of any application for the tax abatement and report its recommendation to the city commission which shall then either approve or deny said recommendation by resolution. 4. All taxes, assessments and SID obligations on any property proposed for tax abatement must be current before any tax abatement will be considered. 5. Following certification, and during the period of tax abatement, if the property is 57 How do you want to cite within the Code of Ordinances? It is inconsistent right now. Normally, we just use section ___ or chapter ___. Sometimes we add “of this Code” if desired. This is a result of different city staff drafting differently without a “code commissioner” requiring uniformity in practice. I ask the citation here to “BMC” should be struck in favor of citation only to the numerical section: We do NOT need to say “BMC” or “this code.” When we use the periods between numbers we know the citation is to the BMC. PROOFS Page 96 of 977 altered in any way that adversely affects those elements that qualify it as historically contributing, the property must be disqualified from receiving the tax abatement. If the historic property which has received a tax abatement under this part is disqualified, the owner is liable for back taxes, interest and a penalty. These costs must be extended against the property in the next general real property tax roll, to be collected and distributed in the same manner as the currently assessed real property tax. The back taxes, interest and penalty must equal the sum of the following: a. The difference in the total real property taxes due during the years the tax abatement was in effect and the total of real property taxes which would have been due had the special assessments not been in effect for those years; b. Interest on the amount calculated in section 2.06.380.A.5.a58 at the rate for delinquent property taxes provided for in MCA 15-16-102; plus c. A penalty of 15 percent on the sum of section 2.06.380.A.5.a.59 Back taxes, interest or penalty may not be imposed on a property transferred to an ownership that makes the property exempt from property taxation or if the property is destroyed by fire or force majure. (Ord. No. 1744, § 1(3.30.040), 10-6-2008) Sec. 2.06.390. Standards. A. To be approved as a tax abatement COA the following requirements shall be met: 1. The property must meet one or more of the following criteria: a. The property is individually listed on the National Register of Historic Places (NRHP). b. The property is at least 50 years of age and located in an established NRHP historic district. c. The property is determined by a qualified professional to be eligible for individual listing in the NRHP. If this criterion is selected, the applicant must complete the necessary steps to list the property on the NRHP prior to the final approval of any abatement. 2. Alterations to the properties or structures without city approval and consistent with the requirements of this division nullifies the tax abatement qualification. 3. All standard COA requirements per chapter 38, article XVI, or its successors, apply as well these further tax abatement COA requirements: a. Additions to existing structures: (1) Additions which increase the size of the footprint are limited to no more than a ten percent increase of the structure's footprint. (2) Additions must not exceed the height of the existing roofline. (3) Additions are limited to secondary facades and evaluated in the 58 This internal cite seems questionable. Please review and provide an updated cite, if this is incorrect. Fixed 59 This internal cite seems questionable. Please review and provide an updated cite, if this is incorrect. Fixed PROOFS Page 97 of 977 context of the facade on which the addition is applied. (4) Due to the limited size of the addition, no specific similarity or differentiation of material is required as referenced in Secretary of the Interior Standards 9 and 10. b. Roof: (1) Shape and material of the existing roof must be preserved unless it can be demonstrated that a different material is more historically appropriate for the structure. (2) Dormers will be considered on a case by case basis and must meet the Secretary of the Interior's Standards and UDO standards for dormers. Dormers shall be limited to not more than one-half the length of the existing roofline. If new dormers are added they must match existing historic dormers in shape, style and materials. c. Materials: (1) Windows: Window matching is fundamental to the historic integrity of the building: (a) Rehabilitation of viable windows is required through repair, restoration and reconstruction. (b) Window replacement requires a professional assessment of the existing windows. (c) Window replacement must be historically appropriate and match historic materials. (d) If storm windows are applied they shall be historically appropriate. (2) Siding: (a) If historic siding is intact, it shall be preserved and restored. (b) If historic siding is missing, new siding should follow the Department of the Interior's guidelines for reconstruction. (3) Foundation: (a) Repair and stabilization of existing foundation materials is encouraged and a primary goal. (b) Foundation replacement is allowed to the extent that the overall height increase of the house does not exceed 18 inches. (c) Foundation replacement requires a professional assessment of the existing foundation. (d) If replaced, the exterior of the new foundation shall match the historic foundation in appearance. (4) Roof: (a) If historic roof material is intact it shall be preserved and restored. (b) If historic roof material is missing, the new roof should follow the Department of the Interior's guidelines for restoration. d. Accessory building: The same parameters apply to accessory buildings as for PROOFS Page 98 of 977 primary structures on the property. Demolition of viable accessory buildings within five years of receiving the tax abatement nullifies tax benefits. (Ord. No. 1744, § 1(3.30.050), 10-6-2008) Secs. 2.06.400--2.06.550. Reserved. DIVISION 4. COLLECTION OF TAXES Sec. 2.06.560. Tax collection by county; when authorized. All taxes levied by the city of Bozeman for general, municipal and administrative purposes shall be collected by the county treasurer, as provided by MCA 7-6-4413, 1981, as amended. (Code 1982, § 3.04.010) Sec. 2.06.570. Annual city tax levy determination. The city commission must, on or before the second Monday in August of each year, by resolution, determine the amount of the city taxes for all purposes to be levied and assessed on the taxable property in the city for the current fiscal year, and the clerk of the commission must duly certify to the county clerk a copy of such resolution, and the county treasurer must collect such taxes, as provided by MCA 7-6-4413, 1981, as amended. (Code 1982, § 3.04.020) Sec. 2.06.580. Monthly settlement and collection from county treasurer. The director of finance shall, immediately after the first of every month, settle with and collect from the county treasurer all taxes for general, municipal and administrative purposes collected by the county treasurer. (Code 1982, § 3.04.030) Sec. 2.06.590. Annual tax reports to commission; contents. A. On or before January 1 of each and every year, the director of finance shall make a report to the commission showing: 1. Total assessable value of property within the city; 2. Taxable value of property within the city; 3. Rate of taxation for the city for general, municipal and administrative purposes; 4. Total amount of taxes due the city for the preceding year; 5. Amount collected; 6. Amount delinquent. B. On or before August 1 of each and every year, the director of finance shall make a like report to the commission of the city. C. The reports so made shall likewise contain a statement showing taxes delinquent and due and owing to the city for prior years. (Code 1982, § 3.04.040) Sec. 2.06.600. Special assessments--Collection procedure. All special assessments, of whatever kind and character, heretofore levied, or which may be hereafter levied, by the commission of the city to defray the cost of any special improvements in the city, or special assessments heretofore levied or hereafter levied for special purposes, as provided by law and this Code, shall be collected by the city, by and through its director of finance. The director of finance shall make these collections in the same manner and at the same time as PROOFS Page 99 of 977 general taxes are collected by the county treasurer. The director of finance shall make proper distribution to the various funds for which such collections are made of all money collected by him. (Code 1982, § 3.04.050) Sec. 2.06.610. Same--Procedure for levy. Within two days after the passage and adoption of any resolution of the city commission levying and assessing any special improvement assessment, the city clerk of the commission shall deliver the original or certified copy of such resolution of such levy and assessment to the director of finance, and the director of finance shall thereupon enter and spread the assessments so made in the special improvement assessment book, against the property against which the assessment is a lien. (Code 1982, § 3.04.060) Sec. 2.06.620. Same--Payable when; delinquency penalty. All special assessments, or installments of special assessments, heretofore or hereafter levied and assessed for any purpose whatsoever, duly and regularly levied by resolution according to law, shall be payable on or before 6:00 p.m. on November 30 of each year, and in the event the same are not paid on or before said date, the same shall become delinquent and shall be subject to a penalty of five percent, and shall bear interest at the rate of one percent per month from the date of delinquency. (Code 1982, § 3.04.070) Sec. 2.06.630. Same--Form of notice and receipt. The director of finance shall prepare and adopt, subject to the approval of the city manager, a form of notice and receipt for special assessments. Such notice and receipt shall conform substantially to the form used by the county treasurer. The original shall constitute the receipt to the taxpayer; the duplicate, the notice to the taxpayer; and the triplicate, the permanent record in the office of the director of finance. The notice herein specified shall contain an itemized statement of the amount of taxes due the current year, and the amount due and delinquent for other years (if any). The director of finance shall mail, on or before October 25 of each year, postage prepaid, the aforesaid notice to the last known address of each taxpayer. (Code 1982, § 3.04.080) Sec. 2.06.640. Same--Notice of payment deadlines and delinquency conditions. A. On or before October 25 of each year, the director of finance shall publish a notice specifying: 1. That all special taxes, special assessments, or installments of special assessments, made for special improvements or special services of any nature, duly and regularly levied by resolution of the city commission, according to law, shall by payable before 6:00 p.m., on November 30 next thereafter, and in the event the same are not paid on or before said date, the amount of such taxes and assessments shall become delinquent, and all delinquent taxes shall bear interest at the rate of one percent per month from the time they are first delinquent until paid. A penalty of five percent shall be added to all delinquent taxes; 2. The time and place at which payment of such taxes may be made; 3. That in the event that any installment of an assessment which has been made payable in installments shall be allowed by a taxpayer to become delinquent, the city commission may declare all unpaid installments of such assessment delinquent, also. PROOFS Page 100 of 977 B. Provided that any failure to give any of these notices will not affect the legality of the tax, nor relieve the taxpayer from any of his the taxpayer's liability. (Code 1982, § 3.04.090) Sec. 2.06.650. Same--Delinquency report. A. Immediately after November 30, and before December 7 of each and every year, the director of finance shall make to, and file with, the city commission a report showing the delinquencies for that year, and setting forth: 1. The name of the owner; 2. The description of the lot or parcel of property; 3. The amount of delinquent assessments for the current year; 4. The number and amount of unpaid installments of such delinquent special assessments; 5. The amount due and delinquent for other years, if any. (Code 1982, § 3.04.100) Sec. 2.06.660. Delinquent assessments--Declaration by resolution; conditions. When the payment of any one installment of any special assessment becomes delinquent, all payments of subsequent installments shall, at the option of the commission of the city, by appropriation resolution duly adopted, become delinquent. The commission shall thereupon, at its option, by appropriation resolution duly adopted, declare all such unpaid special assessments, or installment of such special assessments, and all subsequent installments of such special assessments, due, payable and delinquent. The whole property may be sold the same as other property is sold for taxes. (Code 1982, § 3.04.110) Sec. 2.06.670. Same--Certificates to county clerk and county treasurer. A. Before December 10 (or before June 10, if the December certification has been omitted or incompletely or improperly made), the director of finance shall certify all delinquent taxes and assessments to the county clerk and to the county treasurer for collection as provided by law. B. Such certificate shall contain: 1. The description of each lot or parcel of land on which any tax or assessment has become delinquent, and against which it is a lien; 2. The name and address of the person to whom assessed; 3. The date when the same became delinquent; 4. The amount of the delinquent tax or assessment; 5. The penalty to be added thereto; 6. The total amount of such delinquent tax or assessment with penalty added; and 7. If any special assessment is payable in installments, and any installment thereof becomes delinquent, the amount of such delinquent installment shall be included in such certificate, provided that in the event the city commission shall by resolution declare the whole of the assessment remaining unpaid to be delinquent, then the whole of the assessment remaining unpaid shall be included in such certificate. (Code 1982, § 3.04.120) PROOFS Page 101 of 977 Sec. 2.06.680. Same--Notice publication required. A. Within ten days of the time of filing the certificates required in section 2.06.670, the director of finance shall publish, in not less than one issue of the daily newspaper of largest circulation in the city, a notice specifying: 1. That he the director of finance has certified to the county treasurer a complete delinquent list of all persons and property in the city, against which delinquent taxes are a lien and that the county treasurer will sell such property at a later date at public auction unless prior to such auction all delinquent taxes, together with interest, penalties and costs thereon due, are paid; 2. That a complete delinquent list of all persons and property in the city now owing taxes is on file in the office of the county treasurer and in the office of the director of finance and is subject to public inspection and examination; 3. That the date of the sale shall be as determined by the county treasurer; 4. That delinquent assessments may be reinstated by complying with the provisions of MCA 7-12-4184, 1981. (Code 1982, § 3.04.130) Sec. 2.06.690. Same--Payment procedure. All delinquent assessments certified to the county clerk shall be paid to and collected, with penalty and interest, by the county treasurer, and that the county treasurer shall account therefor and pay the same to the director of finance, as provided by MCA 7-12-4184, 1981. (Code 1982, § 3.04.140) Sec. 2.06.700. Delinquent tax sales; director of finance authority and duties. At the time and place that property in the county upon which delinquent taxes are a lien is sold, at public auction, as provided by MCA 6015-17-12215-17-101(1), 1981, as amended, the director of finance shall attend each delinquent tax sale, and shall then and there take such proceedings as the commission or city manager may direct, to protect the interests of the city in and to any property sold for delinquent taxes, and in which the city may have an interest by reason of delinquent special assessments which are a lien thereon, and the city may at such delinquent tax sale purchase, and may, under and by virtue of the provisions of MCA 7-12-4227 and 7-12-4228, 1981; and MCA 6115-18-202 and 15-18-203, 1981; and MCA 15-17-202, 1981, bid in said property, and have certificate of sale issued to the city; or the city may, at any time subsequent to said delinquent tax sales, or either of them, acquire any of the property struck off to the county at said delinquent tax sales, as provided by said MCA chs. 7-12, 15-18 and 15-17 hereinbefore referred to, and under such terms and conditions as the commission may authorize and direct; that any properties so acquired shall be paid for from the revolving fund, if and when such revolving fund is provided by the commission of the city, as provided by MCA ch. 7-12, 1981. (Code 1982, § 3.04.150) Sec. 2.06.710. Reinstating special assessments. When any special assessment, or installment or installments of special assessments, have become delinquent, and are so declared by appropriate resolution of the city commission, and have been certified to the county clerk and county treasurer for collection, as provided in this division, 60 This section has been repealed. Should it now be MCA 15-17-122? Yes. 61 15-18-202, 15-18-203 and 15-17-202 have been repealed. Delete. PROOFS Page 102 of 977 the commission may nevertheless, at its option, upon the payment to the director of finance of the assessment, or installment or installments of special assessments, with penalty and interest, up to date, by appropriate resolution, be withdrawn from the county treasurer, and cancelled from his the treasurer's records, and reinstated in the office of the director of finance on the director's special improvement assessment book. Such withdrawal and reinstatement may be had and made at any time before or after the sale of the property for delinquent taxes, and before tax deed therefor has been executed. When the commission shall have passed a resolution as contemplated in this division, and when a taxpayer shall have complied with all the conditions therein specified, the director of finance shall file with the county clerk and the county treasurer a certified copy of such resolution, which shall be the county treasurer's authority to cancel and withdraw such delinquent special assessments as may be therein specified. The director of finance shall then reinstate such assessments or installments on the director's special improvement assessment book, as the director of finance is directed in the resolution of the commission to reinstate. (Code 1982, § 3.04.160) Sec. 2.06.720. Special improvement districts; annual reports. A. On January 1 of each year, or at such time as the commission may direct, the director of finance shall make a written report to the commission showing the status of the assessments and bonds outstanding against the several special improvement districts, setting forth the following: 1. Amount of special assessment levied against each district; 2. Amount of bonds or warrants issued in payment of the cost of the improvement; 3. Bonds or warrants which have been paid; 4. Bonds or warrants outstanding; 5. Special improvement assessments outstanding but not delinquent; 6. Delinquent special assessments, if any, and the property against which such delinquent special assessments are a lien. (Code 1982, § 3.04.170) Secs. 2.06.730--2.06.840. Reserved. DIVISION 5. ACQUISITION AND TRANSFER OF CITY PROPERTY Sec. 2.06.850. Authorization for city to obtain property. The city commission has jurisdiction and power, under such limitations and restrictions as are prescribed by law, to purchase, receive by donation or exchange, or lease any real or personal property necessary for the use of the city and to preserve, take care of, manage, and control the same. (Ord. No. 1658, § 1(2.05.010), 1-17-2006) Sec. 2.06.860. Appraisal required for certain purchases of real property or conservation easements. Unless otherwise provided by law, the city may not purchase real property in an amount in excess of $200,000.00 or a conservation easement using public funds in an amount in excess of $40,000.00 unless the value of the property or conservation easement has been previously estimated by a disinterested certified general real estate appraiser selected by the city manager. (Ord. No. 1658, § 1(2.05.020), 1-17-2006; Ord. No. 1683, § 1, 11-27-2006) Sec. 2.06.870. Authorization to sell and exchange city property. A. The city commission has the power to sell, trade, or exchange any real or personal PROOFS Page 103 of 977 property, however acquired, belonging to the city that is not necessary to the conduct of city business or the preservation of its property. B. Whenever the city purchases equipment, as provided in MCA 7-5-4301 through 7-5- 4310, city equipment that is not necessary to the conduct of the city business may be traded in as part of the purchase price or may be sold at public auction, as provided in MCA 7-5-4310, in the discretion of the city manager or the city manager's designee. C. Any sale, trade, or exchange of real or personal property must be accomplished under the provisions of this division. In an exchange of real property, the properties must be appraised, and an exchange of city property may not be made unless property received in exchange for the city property is of an equivalent value. If the properties are not of equivalent values, the exchange may be completed if a cash payment is made in addition to the delivery of title for property having the lesser value. D. If the city owns property containing a historically significant building or monument, the city may sell or give the property to nonprofit organizations or groups that agree to restore or preserve the property. The contract for the transfer of the property must contain a provision that: 1. Requires the property to be preserved in its present or restored state upon any subsequent transfer; and 2. Provides for the reversion of the property to the city for noncompliance with conditions attached to the transfer. (Ord. No. 1658, § 1(2.05.030), 1-17-2006) Sec. 2.06.880. Requirements for certain sales. When the city commission, after public hearing, has determined by a two-thirds vote of all the members that any real property owned by the city is not needed for public use, or that the public interest may be furthered, the city may sell such property by bid, auction with reserve, or negotiated sale or exchange, subject, where appropriate, to a minimum price established through an appraisal that certifies the value of such property. Notice of sale, exchange, or auction shall be published as provided in MCA 7-1-4127. The city may terminate the sale procedures used at any time and may reinitiate the same or different procedures at a later date. (Ord. No. 1658, § 1(2.05.040), 1-17-2006; Ord. No. 1713, § 1, 8-27-2007) Sec. 2.06.890. Terms of sale. A. Except as provided in section 2.06.870.D, a sale under this division must be for cash or on terms that the city commission may approve, provided that at least 20 percent of the purchase price is paid in cash. All deferred payments on the purchase price of any property sold must bear interest at a market rate, payable annually, and may be extended over a period of not more than five years. B. Subject to section 2.06.870.D, a sale may not be made for less than 90 percent of the appraised value. C. Subject to section 2.06.870.D, the title to any property sold may not pass from the city until the purchaser or the purchaser's assigns have paid the full amount of the purchase price into the city treasury for the use and benefit of the city. (Ord. No. 1658, § 1(2.05.050), 1-17-2006) Sec. 2.06.900. Appraisal required for certain sales. Unless otherwise provided, no sale of real property shall be made of any property unless it has been appraised within one year prior to the date of the sale. PROOFS Page 104 of 977 (Ord. No. 1658, § 1(2.05.060), 1-17-2006) Sec. 2.06.910. Use of proceeds of property disposition. The funds derived from property disposed of in accordance with this division, in the discretion of the city commission, may be credited to any account that is in the best interest of the city. (Ord. No. 1658, § 1(2.05.070), 1-17-2006) DIVISION . POLICE RESERVE FUND62 3.12.010. Board of trustees established--membership--duties. For the audit, administration, investment, control and disbursement of the police reserve fund as heretofore established and accumulated, as the same now exists and as it may hereafter be augmented in the manner as by law provided, there is created, set up and established a board of trustees. The board of trustees, hereinafter in this chapter referred to as the "board," shall consist of the mayor, the clerk of the city commission, and the city attorney, who shall be such trustees by virtue of their respective offices as mayor, clerk and city attorney, as aforesaid, and two members of the police department on the active list of policemen of the city, to be chosen by a majority vote of all of the active members of the police force. (Code 1982, § 3.12.010) 3.12.020. Board of trustees--election of police members. __ The active members of the police force shall hold a meeting upon the call of the chief of police, at which meeting a majority of such active members of the police force shall constitute a quorum. They shall choose a chairman and a secretary of the meeting from among their number and proceed to the election of two members of the board from among their number by a majority vote of those present and entitled to vote. Voting shall be by written and secret ballot. Of those elected at the first meeting, one shall serve until May 10, 1946, and one until May 10, 1947. The chairman and secretary of such meeting shall certify the names of those so elected to the clerk of the city commission, in writing, the certificate stating the term for which each is elected, as such terms are herein designated. __ Thereafter, between the first and tenth day of May, the active members of the police force shall hold a like meeting for the election of one member of the board, by the same procedure, for the term of two years from and after the tenth day of May of the year in which he is elected, and certify such election to the clerk of the city commission as above provided. The filing of the certificate of election with the clerk, as aforesaid, shall constitute the qualification for membership on the board of the police force members thereof. Any vacancy on the board as to police force members shall be filled by appointment by the chief of police, certified as above provided, such appointed member to hold office until his successor is elected and qualified at the succeeding annual election. (Code 1982, § 3.12.020) 3.12.030. Organization of the board. The mayor shall be the chairman, the city attorney the vice-chairman, and the clerk of the city commission the secretary of the board. The chairman shall preside at all meetings of the board and, in his absence, the vice-chairman. The secretary shall keep the minutes of the board in a suitable permanent record, and perform the duties usually appertaining to the office of secretary. 62Note by city staff: The city joined the state MPERS program in 1975. Delete this chapter. PROOFS Page 105 of 977 A majority of the board shall constitute a quorum for the transaction of business. No compensation shall be paid to any member of the board for his services as such, but he may be allowed his actual and necessary expenses incurred in the transaction of any business of the board outside of the city, by authority and direction of the board entered on the minutes, and upon presentation of verified and itemized claim therefor and approved by the chairman. (Code 1982, § 3.12.030) 3.12.040. Meetings of the board. The board shall hold not less than two stated meetings in each year, the dates of which shall be fixed at the first meeting of the board, and other meetings upon call of the chairman or any two members of the board, upon notice to all of the members of the board who are in the city, of not less than 24 hours. Such notice may be oral, by telephone, or by letter, and given by the secretary. Any business of the board may be transacted at such special or called meeting. (Code 1982, § 3.12.040) 3.12.050. Duties of the board. It shall be the duty of the board to audit, control, invest and administer the police reserve fund in accordance with the statutes of the state in such case made and provided, and as the same may be from time to time altered, amended and repealed, and particularly MCA 7-32-4101 et seq., 1981 and MCA 19-10-201 et seq., 1981. (Code 1982, § 3.12.050) Secs. 2.06.920--2.06.1040. Reserved. DIVISION 6. SPECIAL IMPROVEMENT DISTRICT REVOLVING FUND* *State law reference—Special improvement districts, MCA 7-12-4101 et seq. Sec. 2.06.1050. Established; name and purpose. In order to secure the prompt payment of any special improvement district bonds and/or warrants issued in payment of improvements made in any special improvement district or districts created after February 25, 1929, and the interest thereon, as it becomes due, there is created and established a fund to be known and designated as "special improvement district revolving fund." (Code 1982, § 3.16.010) Sec. 2.06.1060. Sources of funds. A. For the purpose of providing funds for the special improvement district revolving fund, the commission: 1. Transfer from general fund. May, in its discretion, from time to time, transfer to the special improvement district revolving fund from the general fund of the city such amount or amounts as may be deemed necessary, which amount or amounts so transferred shall be deemed and considered and shall be loans from such general fund to the special improvement district revolving fund; and 2. Tax levy. Shall, in addition to such transfers from the general fund, or in lieu thereof, levy and collect for the special improvement district revolving fund such a tax, hereby declared to be for a public purpose, on all the taxable property of the city, as shall be necessary to meet the financial requirements of the fund, such levy, together with such transfer, not to exceed in any one year five percent of the principal amount of the then-outstanding special improvement district bonds and/or warrants. (Code 1982, § 3.16.020) PROOFS Page 106 of 977 Sec. 2.06.1070. Loans from revolving fund to special improvement district fund; conditions. Whenever any special improvement district bond or warrant, or interest thereon, issued for improvements made in special improvement districts created after February 25, 1929, shall be or shall become due and payable, and there shall then be either no money or not sufficient money in the appropriate special improvement district fund with which to pay the same, an amount sufficient to make up the deficiency may, by order of the commission, be loaned by the special improvement district revolving fund to such special improvement district fund, and thereupon such bond or warrant or such interest thereon, whether it be for principal or for interest, or for both, as the commission may in its discretion elect or determine, shall be paid from the money so loaned, or from the money so loaned when added to the insufficient amount, as the case may require. (Code 1982, § 3.16.030) Sec. 2.06.1080. Liens imposed for amounts loaned. Whenever any loan is made to any special improvement district fund from the special improvement district revolving fund, the special improvement district revolving fund shall have a lien therefor on all unpaid assessments and/or installments of assessments on such district, whether delinquent or not, and on all moneys thereafter coming into such special improvement district fund to the amount of such loan, together with interest thereon from the time it was made at the rate or percentage borne by the bond or warrant for payment of which, or of interest thereon, such loan was made. Whenever there shall be moneys in such special improvement district fund which are not required for the payment of any bond or warrant of such special improvement district, or of interest thereon, so much of such moneys as may be necessary to pay such loan shall, by order of the commission, be transferred to the special improvement district revolving fund, and after all the bonds and warrants issued on any special improvement district have been fully paid, all moneys remaining in such special improvement district fund shall, by order of the commission, be transferred to and become a part of the special improvement district revolving fund. (Code 1982, § 3.16.040) Sec. 2.06.1090. Use of surplus in fund. A. Whenever there is, in the special improvement district revolving fund, an amount in excess of the amount which the commission deems necessary for the payment or redemption of maturing bonds or warrants, or interest thereon, the commission may: 1. Transfer to general fund. By a vote of all its members, at a meeting called for that purpose, order such excess, or any part thereof, transferred to the general fund of the city; or 2. Purchase of property for delinquent taxes. Use such excess, or any part thereof, for the purpose of purchase of property at sales for delinquent taxes or assessments, or both, or which may have been struck off or sold to the county for delinquent taxes or assessments, or both, and against which property there then are any unpaid assessments for special improvements on account whereof there are outstanding special improvement district bonds or warrants of the city; and 3. Disposition of property. Sell any tax certificates issued on any such sale or sales. After acquiring title to such property, the commission may lease such property or sell the same at public or private sale and make conveyance thereof, or otherwise dispose thereof, as the interest of the city may require; and all proceeds from such sale of tax certificates, or from such leasing, sale or other disposition of the property, shall belong to and be paid into the special improvement district revolving fund, and PROOFS Page 107 of 977 be subject to transfer, in whole or in part, to the general fund by the vote of all the members of the commission at a meeting called for that purpose, as hereinbefore provided. (Code 1982, § 3.16.050) Sec. 2.06.1100. Levy of tax; method and effect. The special tax to be levied, as herein provided in section 2.06.1060.A.2, shall be in addition to the tax for general, municipal and administrative purposes, and the levy shall be made by the commission at the time and by the resolution passed and adopted by the commission as provided by section 2.06.570. (Code 1982, § 3.16.060) Sec. 2.06.1110. Statutory authority for division provisions.63 This division is passed pursuant to the power and authority vested in the commission by chapter 24, Laws of Montana, 21st Session, 1929, entitled: "An Act Relating to Special Improvement Districts in Cities and Towns; Authorizing the Creation, Maintenance and Use of a Special Improvement District Revolving Fund in any City or Town for the Purpose of Securing Prompt Payment of Special Improvement District Bonds and Warrants and Interest Thereon, and Requiring Levy of Taxes When Necessary for the Financial Requirements of Such Fund," and the interpretation thereof by the Supreme Court of the state in the case of Stanley v. Jeffries, 86 Mont. 114. The statute is now codified as MCA 7-12-4221 et seq. (Code 1982, § 3.16.070) Secs. 2.06.1120--2.06.1240. Reserved. DIVISION 7. TAX INCREMENT FINANCING INDUSTRIAL DISTRICT PROGRAM*64 *State law reference—Urban Renewal Law, MCA 7-15-4201 et seq. Sec. 2.06.1250. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Actual taxable value" means the taxable value of taxable property at any time, as calculated from the assessment role last equalized. 2. "Base taxable value" means the actual taxable value of all taxable property within 63 Do you wish to retain this old cite or refer now to MCA 7-12-4221 et seq. The statute has been amended several times since 1929. Do you feel that you need to codify the state law, or just create the fund as authorized by the statute? Keep, but update the cite. 64 This chapter was derived from MCA 7-15-4201 et seq. The statute has been amended several times since you adopted this in 1991. Do you feel that you need to duplicate the state law language or just adopt by reference? Neither. The Chapter should be repealed as there is no reason to develop local code provisions for creation of these TIF districts. That being said, please leave this here as the provisions of this chapter contain provisions that are more detailed than the state code. Phase 2 will contain a review of the city’s TIF districts. PROOFS Page 108 of 977 an urban renewal area or industrial district prior to the effective date of a tax increment financing provision. This value may be adjusted as provided in MCA 7-15- 4287 or 7-15-4293. 3. "Incremental taxable value" means the amount, if any, by which the actual taxable value at any time exceeds the base taxable value of all property within a tax increment financing industrial district. 4. "Industrial district" means a tax increment financing industrial district created pursuant to MCA 7-15-4299. 5. "Industrial infrastructure development project" means a project undertaken within or for an industrial district that consists of any or all of the activities authorized by MCA 7-15-4288. 6. "Tax increment" means the collections realized from extending the tax levies, expressed in mills, of all taxing bodies in which the industrial district or a part thereof is located against the incremental taxable value. 7. "Tax increment provision" means a provision for the segregation and application of tax increments as authorized by MCA 7-15-4282 through 7-15-4292. 8. "Taxes" means all taxes levied by a taxing body against property on an ad valorem basis. (Code 1982, § 3.20.010; Ord. No. 1336, § 1, 1991) Sec. 2.06.1260. Industrial development districts; creation. A. The city commission may, from time to time, create by ordinance a tax increment financing industrial district following a public hearing on the proposed district. In order for land to be included in the proposed district, it must: 1. Consist of a continuous area with an accurately described boundary; 2. Not be contained within the boundaries of another industrial district or an urban renewal district with a tax increment provision; 3. Be zoned for light or heavy industrial use in accordance with the Bozeman area master plan; 4. Be determined to be deficient in infrastructure improvements for industrial development. B. The industrial district must have as its purpose the development of infrastructure to encourage the growth and retention of secondary, value-added industries. C. Notice of the public hearing on the creation of a proposed industrial district shall be given in accordance with the provisions of MCA 7-15-4215. (Code 1982, § 3.20.020; Ord. No. 1336, § 2, 1991) Sec. 2.06.1270. Costs which may be paid from tax increments. A. The tax increment received from an industrial district may be used to pay for the following costs incurred for an industrial infrastructure development project (in that district): 1. Land acquisition; 2. Demolition and removal of structures; 3. Relocation of occupants; 4. The acquisition, construction and improvement of infrastructure or industrial PROOFS Page 109 of 977 infrastructure, which includes streets, roads, curbs, gutters, sidewalks, pedestrian malls, alleys, parking lots and off-street parking facilities, sewers, sewer lines, sewage treatment facilities, storm sewers, waterlines, waterways, water treatment facilities, natural gas lines, electrical lines, telecommunication lines, rail lines, rail spurs, bridges, publicly owned buildings, and any public improvements authorized by MCA 7-12-41 through 7-12-45, 7-13-42, 7-13-43, and 7-14-47, and items of personal property to be used in connection with improvements for which the foregoing costs may be incurred; 5. Costs incurred in connection with the redevelopment activities allowed under MCA 7-15-4233; 6. Acquisition of infrastructure-deficient areas or portions thereof; 7. Administrative costs associated with the management of the industrial district; 8. Assemblage of land for development or redevelopment by private enterprises or public agencies including sale, initial leasing, or retention by the municipality itself at its fair value; 9. The compilation and analysis of pertinent information required to adequately determine the infrastructure needs of secondary, value-adding industries in the industrial district; 10. The connection of the industrial district to existing infrastructure outside the industrial district; and 11. The provision of direct assistance, through industrial infrastructure development projects, to secondary, value-adding industries to assist in meeting their infrastructure and land needs within the industrial district. (Code 1982, § 3.20.030; Ord. No. 1336, § 3, 1991) Sec. 2.06.1280. Use of tax increments for bond payments. The tax increments received may be pledged for the payment of the principal of premiums, if any, and interest on bonds which the city may issue for the purpose of providing funds to pay for costs accrued pursuant to section 2.06.1270. (Code 1982, § 3.20.040; Ord. No. 1336, § 4, 1991) Sec. 2.06.1290. Contents of ordinance. A. Each ordinance creating a tax increment financing industrial district shall: 1. Designate each tax increment financing district by number; 2. Set forth a legal description of and map showing the boundaries of the industrial district; 3. Include a plan that describes the tax increment industrial development project and contains provisions for undertaking and implementing the project; and 4. Establish the base year for the calculation of tax increment within the industrial district. (Code 1982, § 3.20.050; Ord. No. 1336 § 5, 1991) Sec. 2.06.1300. Districts; termination. A. Tax increment financing industrial districts will terminate upon the later of: 1. The 15th year following the creation of the industrial district; or PROOFS Page 110 of 977 2. The payment or provision for payment in full or discharge of all bonds for which the tax increment has been pledged and the interest thereon. B. After termination of the tax increment financing provision, all taxes shall be levied upon the actual taxable value of the taxable property in the industrial district and shall be paid into funds of the taxing bodies levying taxes within the industrial district. (Code 1982, § 3.20.060; Ord. No. 1336 § 6, 1991) Sec. 2.06.1310. Administration. The tax increment financing program created in this division shall be administered by the city commission. The commission shall be advised on matters pertaining to the program by the tax increment financial industrial district board created pursuant to article 5, division 10 of this chapter. (Code 1982, § 3.20.070; Ord. No. 1336, § 7, 1991) Secs. 2.06.1320--2.06.1440. Reserved. DIVISION 8. BUSINESS IMPROVEMENT DISTRICT PROGRAMS* *State law reference—Business improvement districts, MCA 7-12-1101 et seq. Sec. 2.06.1450. Purpose and intent. The purpose and intent of this division is to provide for the specific program components of each of the several business improvement districts within the City of Bozeman created pursuant to title 7, chapter 12, part 11, Montana Code Annotated (MCA 7-12-1101 et seq.). The districts shall be administered as provided by the boards of trustees for each district created pursuant to article 5, division 11 of this chapter. The purpose of a business improvement district is to serve a public use, promote the health, safety, prosperity, security, and general welfare of the inhabitants of the district and of the people of this state and be of specific benefit to the property within the boundaries of each district. (Ord. No. 1765, § 4(3.22.010), 8-10-2009) Sec. 2.06.1460. Bozeman Tourism Business Improvement District program. A. Creation of district. The city commission creates and establishes the Bozeman Tourism Business Improvement District (BTBID). B. Specific purpose of district. In addition to the purposes enumerated in section 2.06.1450, the purposes of the BTBID are to aid in tourism, promotion, and marketing within the BTBID. C. District to be administered by board of trustees. Pursuant to section 2.05.1960, the affairs of the BTBID are to be administered by the BTBID board of trustees. D. Limits and boundaries of district. 1. The outer limits of the BTBID within which properties used for the purpose of providing overnight stays at lodging facilities are be subject to the jurisdiction of the district shall mirror the City's corporate limits. As the corporate boundaries of the city change by reason of annexation or otherwise, the outer limits of the area within which a property shall be included in the BTBID shall be similarly changed. 2. Within the limits described in subsection D.1 of this section, it is acknowledged that not all properties or facilities are to be subject to the jurisdiction of the BTBID; rather, specific non-contiguous properties used for the purpose of providing overnight stays at lodging facilities, as described herein, shall be the only properties PROOFS Page 111 of 977 or facilities that comprise the BTBID. The properties and facilities that shall be subject to the BTBID assessments are only those that are being used for the identified purpose of providing ten or more rooms for temporary overnight accommodations, lodging, dwelling, or sleeping facilities for transient guests and, as such, shall include all hotels, motels, inns, bed and breakfast establishments, hostels, and other similar uses, structures, or portions thereof with ten or more rooms. 3. Any facility meeting the requirements of subsection D.2 of this section that begins service within the city limits after the effective date of the ordinance from which this section is derived shall be subject to the requirements of this division. In such a case, the facility will automatically become subject to the jurisdiction of the BTBID and subject to the assessments described in subsection G of this section. This provision shall also apply to any property or portion thereof annexed into the City of Bozeman after the effective date of the ordinance from which this section is derived whether such property or portion thereof contains an existing facility meeting the requirements of subsection D.2 of this section or whether a facility meeting the requirements of subsection D.2 of this section is developed on the property after annexation. E. General character of the services to be performed. The services to be performed by the BTBID shall include the funding of all uses and projects for tourism promotion within the city as specified in the BTBID annual work plan and budget, as required by section 2.05.1960.E, and as approved by the city commission. The services shall be designed to, among others, benefit local tourism and lodging businesses within the city and shall include the marketing of Bozeman at convention and trade shows, the marketing of Bozeman to the travel industry generally, and the marketing of Bozeman as a viable location for major sporting events. F. Assessments. Finding the benefits derived by each property or facility are proportional, the city commission shall annually assess the entire cost of the BTBID against the BTBID in the amount of $1.00 per occupied room night. The properties to be assessed shall be those meeting the requirements of subsection D.2 of this section. The assessments described herein shall be subject to the provisions of division 4 of this article. Certain occupied room nights are exempt from assessments under this division. These include: 1. Occupied room nights at facilities that are otherwise exempt from paying a lodging facility use tax pursuant to MCA 15-65-101 through 15-65-136; and 2. Complimentary occupied room nights provided by a facility for no compensation. G. Work plan and budget. The board of trustees for the BTBID, in consultation with the Bozeman Convention and Visitors Bureau, shall annually prepare a work plan, audit, and budget and submit the same to the city commission. The commission shall provide notice work plan and budget have been submitted and shall hold a public hearing on objections to the work plan and budget and may modify the work plan and budget as it considers necessary and appropriate. Upon approval of the work plan and budget the commission shall levy the assessments as described in subsection F of this section. H. Records/trade secrets. Pursuant to state law, the public shall have reasonable access to the records of the BTBID. To ensure there is sufficient protection of the trade secrets of any facility subject to this division, the board of trustees shall adopt procedures for creation and maintenance of records of the BTBID and procedures for balancing the right of the public to access to said records with the interest of the member entities' right to maintain the confidentiality of any valid trade secrets. These procedures shall be approved by the city attorney and incorporated into the bylaws. PROOFS Page 112 of 977 I. Duration of district. The BTBID shall remain in effect for ten years from the effective date of the ordinance from which this section is derived unless otherwise extended or modified by the city commission. (Ord. No. 1765, § 4(3.22.020), 8-10-2009; Ord. No. 1776, § 1, 12-7-2009) Sec. 2.06.1470. Bozeman Downtown Business Improvement District program. A. Creation of district. The city commission creates and establishes the Bozeman Downtown Business Improvement District (BDBID). B. District to be administered by board of trustees. Pursuant to section 2.05.1970, the affairs of the BDBID are to be administered by the BDBID board of trustees. C. Limits and boundaries of district. The properties of the BDBID shall include those within the boundaries as described in section 3 of Resolution No. 4263, adopted June 21, 2010. D. General character of the services to be performed. The services to be performed by the BDBID shall include the funding of all uses and projects within the BDBID as specified in the annual work plan and budget, as required by section 2.05.1970.D, and as approved by the city commission. E. Assessments. Each lot or parcel of land, including the improvements on the lot or parcel, shall be assessed for that part of the whole cost of the district that its taxable valuation bears to the total taxable valuation of the property of the BDBID and shall be as follows: 1. For the first three fiscal years (2011-2013) of the BDBID, the total property owner assessment shall not exceed $114,000.00; 2. For the fourth through seventh fiscal years (2014-2017), the assessment shall not exceed $120,000.00; and 3. For the eighth through tenth years (2018-2020), the assessment shall not exceed $126,000.00. These assessment limitations may be exceeded with a favorable vote or petition by the owners of more than 60 percent of the area of the property in the BDBID. F. Work plan, budget and financial report. 1. The board of trustees shall prepare a financial report in compliance with title 2, chapter 7, part 5, of Montana Code Annotated (MCA 2-7-501 et seq.). 2. The board of trustees for the BDBID shall annually prepare a work plan, and budget and submit the same to the city commission. The commission shall provide notice work plan and budget have been submitted and shall hold a public hearing on objections to the work plan and budget and may modify the work plan and budget as it considers necessary and appropriate. Upon approval of the work plan and budget the commission shall levy the assessments as described in subsection E of this section. G. Records/trade secrets/privacy. Pursuant to state law, the public shall have reasonable access to the records of the BDBID. To ensure there is sufficient protection of the trade secrets or privacy of any property owner subject to this division, the board of trustees shall adopt procedures for creation and maintenance of records of the BDBID and procedures for balancing the right of the public to access to said records with the interest of the property owner's right to privacy or to maintain the confidentiality of any valid trade secrets. These procedures shall be approved by the city attorney and incorporated into the bylaws. H. Duration of district. The BDBID shall remain in effect for ten years from the effective date of the ordinance from which this section is derived unless otherwise extended or PROOFS Page 113 of 977 modified by the city commission. (Ord. No. 1790, § 2(3.22.030), 7-12-2010) Secs. 2.06.1480--2.06.1590. Reserved. DIVISION 9. IMPACT FEES* *State law reference—Impact fees to fund capital improvements, MCA 7-6-1601 et seq. Sec. 2.06.1600. Legislative findings. A. The city commission finds that: 1. The protection of the health, safety, and general welfare of the citizens of the city requires that the street, fire protection, water, and wastewater systems of the city be expanded and improved to accommodate continuing growth within the city and within those areas directly served by its fire department and within those areas connected to its water and wastewater systems. 2. New residential and nonresidential development imposes increased and excessive demands upon existing city facilities. 3. New development often overburdens existing public facilities, and the tax revenues generated from new development often do not generate sufficient funds to provide public facilities to serve the new development. 4. New development is expected to continue and will place ever-increasing demands on the city to provide public facilities to serve new development. 5. The creation of an equitable development impact fee system would enable the city to impose a proportionate share of the costs of required improvements to the city's transportation, fire protection, water, and wastewater systems on those developments that create the need for them. 6. All types of development that are not explicitly exempted from the provisions of this division will generate demand for city's transportation, fire protection, water, and wastewater services or facilities that will require improvements to city facilities and equipment. 7. The city's transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire/EMS impact fee study dated July 2008 and as updated, prepared by HDR Engineering, and water and wastewater impact fee studies dated July 2007, prepared by HDR Engineering, set forth reasonable methodologies and analyses for determining the impacts of various types of development on the city's street, fire protection, water and wastewater systems and for determining the cost of acquiring land and the cost of acquiring or constructing facilities and equipment necessary to meet the demands for such services created by new development. 8. The city establishes as city standards the assumptions and service standards referenced in the impact fee studies and other duly adopted documents as part of its current plans for the transportation system and for the city's fire protection, water, and wastewater systems. 9. The documentation required by MCA 7-6-1602, is collectively contained in the city's facility plans, impact fee studies, development regulations, financial records, capital improvements program, design and specification manual, and other city documents. 10. The development impact fees described in this division are reasonably related to the PROOFS Page 114 of 977 service demands and needs of new development and are based on the impact fee studies and documentation cited in subsection 7 of this section and do not exceed the costs of acquiring additional land and the costs of acquiring or constructing additional facilities or equipment required to serve the new developments that will pay the fees. 11. All transportation improvements upon which the transportation impact fees are based and upon which transportation impact fee revenues will be spent, based on the limitations set forth in this division will benefit all new development in the city; and it is, therefore, appropriate to treat the entire city as a single service area for purposes of calculating, collecting, and spending the transportation impact fees, while recognizing differences in the demand for service based upon the identified factors set forth in the transportation impact fee study. 12. All of the fire protection improvements listed in the fire impact fee study will benefit all new development that receives fire protection service directly from the city fire department; and it is, therefore, appropriate to treat the entire city and all properties served directly by the city fire department as a single service area for purposes of calculating, collecting, and spending the fire protection impact fees. 13. All of the water system improvements listed in the water impact fee study will benefit all new development that connects to the city water system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city water system as a single service area for purposes of calculating, collecting, and spending the water impact fees. 14. All of the wastewater system improvements listed in the wastewater impact fee study will benefit all new development that connects to the city wastewater system; and it is, therefore, appropriate to treat the entire city and all properties connected to the city wastewater system as a single service area for purposes of calculating, collecting, and spending the wastewater impact fees. 15. There is both a rational nexus and a rough proportionality between the development impacts created by each type of development covered by this division and the development impact fees that such development will be required to pay. 16. The city's facility planning, capital improvement program, development review, and bidding processes create a public process by which, on a specific and detailed basis, the capacity expanding components of construction can be identified and funded distinctly from those components which are not capacity expanding by providing for evaluation by the city and the impact fee advisory committee of future needs related to growth, identification of applicable funding sources, and monitoring of construction and payments. 17. This division creates a system by which development impact fees paid by new developments will be used to expand or improve the city transportation, fire protection, water, and wastewater systems in ways that benefit the development that paid each fee within a reasonable period of time after the fee is paid. 18. This division creates a system under which development impact fees shall not be used to cure existing deficiencies in public facilities or to pay maintenance or operations costs associated with providing public facilities. (Code 1982, § 3.24.010; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 1, 1996; Ord. No. 1471, § 1, 1998; Ord. No. 1707, § 1(3.24.010), 8-6-2007; Ord. No. 1730, § 1(3.24.010), 1-14-2008; Ord. No. 1746, § 1, 8-4-2008) PROOFS Page 115 of 977 Sec. 2.06.1610. Authority and applicability. A. This division is enacted pursuant to the city's self-government powers, the authority granted to the city by the Montana State Constitution, MCA 7-6-1601 through 7-6-1604, and MCA 7-1-4123, 7-1-4124, 7-3-4313, 7-7-4404, 7-7-4424, 7-13-4304, and 69-7-101. B. The provisions of this division shall apply to all of the territory within the limits of the city. C. The provisions of this division related to the fire protection impact fees shall also apply to all properties located outside the city that are served directly by the city fire department. D. The provisions of this division related to water impact fees shall also apply to all properties located outside the city that are connected to the city water system. E. The provisions of this division related to wastewater impact fees shall also apply to all properties located outside the city that are connected to the city wastewater system. (Code 1982, § 3.24.020; Ord. No. 1414, § 1, 1996; Ord. No. 1707, § 1(3.24.020), 8-6-2007; Ord. No. 1730, § 1(3.24.020), 1-14-2008) Sec. 2.06.1620. Intent. A. This division is adopted to help implement the comprehensive plan of the city, the city's 2001 transportation plan update prepared by Robert Peccia & Associates, and as updated, the September 2006 draft of the water facility plan prepared for the city by Allied Engineering and Robert Peccia and Associates, and as updated, and the May 2006 draft of the wastewater facility plan prepared for the city by HDR Engineering and Morrison-Maierlie, Inc., and as updated, the August 2006 draft of the fire protection master plan prepared for the city by Emergency Services Consulting, Inc, and as updated. B. The intent of this division is to ensure that new development bears a proportionate share of the cost of improvements to the city transportation, fire protection, water, and wastewater systems; to ensure that such proportionate share does not exceed the cost of the transportation, fire protection, water, and wastewater facilities and equipment required to serve such new developments; and to ensure that funds collected from new developments are actually used to construct improvements to the city transportation, fire protection, water, and wastewater systems that reasonably relate to the benefits accruing to such new developments. C. It is the further intent of this division that new development pay for its proportionate share of public facilities through the imposition of development impact fees that will be used to finance, defray, or reimburse all or a portion of the costs incurred by the city to construct improvements to the city transportation, fire protection, water, and wastewater systems that serve or benefit such new development. D. It is not the intent of this division to collect any money from any new development in excess of the actual amount necessary to offset new demands for transportation, fire protection, water, or wastewater improvements generated by that new development. E. It is not the intent of this division that any moneys collected from any development impact fee and deposited in an impact fee fund ever be co-mingled with moneys from a different impact fee fund or ever be used for a type of facility or equipment different from that for which the fee was paid. (Code 1982, § 3.24.030; Ord. No. 1414, § 1, 1996; Ord. No. 1471, § 2, 1998; Ord. No. 1707, § 1(3.24.030), 8-6- 2007; Ord. No. 1730, § 1(3.24.030), 1-14-2008; Ord. No. 1746, § 2, 8-4-2008) Sec. 2.06.1630. Definitions. A. The following words, terms and phrases, when used in this division, shall have the PROOFS Page 116 of 977 meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Central Business District" (CBD) means land uses established within the B-3, "Central Business District," zoning district. 2. "Development" means any construction or expansion of a building, structure, or use, any change in use of a building or structure, or any change in the use of land, which creates additional demand for public services. 3. "Development impact fees" means the transportation impact fee, fire protection impact fee, water impact fee, and wastewater impact fee established by this division. 4. "Development impact fees review committee" means the committee composed of the impact fee coordinator, the building official, the director of public service, the fire chief, and the director of planning and community development, or their designees appointed to serve in the member's place at a meeting. 5. "Encumber" means to legally obligate by contract, or otherwise commit to use by appropriation or other official act of the city. 6. "Impact fee capital improvement program" means the capital improvements program for the transportation system, the city fire protection system, and the city water and wastewater systems, which shall assign moneys from each impact fee fund to specific projects and related expenses for improvements to the type of facilities or services for which the fees in that fund were paid, and shall not include improvements needed to correct existing deficiencies or operations or maintenance costs. 7. "Impact fee coordinator" means the director of the city's department of planning and community development or the director's designee. 8. "Impact fee funds" means the transportation impact fee fund, fire protection impact fee fund, water impact fee fund, and wastewater impact fee fund established by this division. 9. "Impact fee studies" means the transportation impact fee study, dated October 31, 2007, prepared by Tindale-Oliver & Associates and as updated, and the fire impact fee study, dated October 1995 and as updated, prepared by James Duncan and Associates, and the water and wastewater impact fee studies dated May 2007, prepared by HDR Engineering. 10. "Improvement" means planning, land acquisition, engineering design, construction inspection, on-site construction, off-site construction, equipment purchases, and financing costs associated with new or expanded facilities, buildings, and equipment that expand the capacity of a facility or service system and that have an average useful life of at least ten years. The term "improvement" does not include maintenance, operations, or improvements that do not expand capacity. 11. "Independent fee calculation study" means a study prepared by an applicant for a building permit or water or wastewater connection permit calculating the cost of expansions or improvements to the city's transportation, fire protection, water, or wastewater systems required to serve the applicant's proposed development; that is performed on an average cost (not marginal cost) methodology; uses the service units and unit construction costs stated in the impact fee studies; and is performed in compliance with any criteria for such studies established by this division or by the city. PROOFS Page 117 of 977 12. "Initiation of construction" means the date of the preconstruction meeting with the city engineer or the city engineer's designee, or the date of the first visible change in the physical condition of the improved site caused by the first person furnishing services or materials to effect construction of the improvement, whichever occurs first. 13. "Project-related improvements" means site-related improvements including, without limitation, all access streets adjacent to the proposed development or leading only to the proposed development and not included on the transportation system; all streets and driveways within the development; all acceleration, deceleration, right, or left turn lanes leading to any streets and driveways within the development; all traffic control devices for streets and driveways within the development; all water lines or facilities adjacent to, leading to, or located within the development and serving only the development; all wastewater lines or facilities adjacent to, leading to, or located within and serving only the development; and all off-site improvements necessary for the safety and code compliance of a development. Credit for incidental improvements shall not be allowed. The presumption shall be made that the minimum improvement needed to serve a project shall be deemed to be a project improvement even if additional capacity is thereby created that may be potentially used by other developments presently or in the future. 14. "Transportation system" means capacity-adding improvements to collectors or arterial roads of three lanes or more, which are included on the 2001 Greater Bozeman Transportation Plan Update or the city's impact fee capital improvement program, and which will benefit new development as required by law and this division. The transportation system includes only those bicycle and pedestrian facilities built in conjunction with and included in a capacity-adding transportation facility improvement otherwise eligible for impact fee funding pursuant to the terms of this division. The "transportation system" does not include project-related improvements. 15. Trip exchange district. a. "Trip exchange district" means a defined geographic area that meets the following criteria, pursuant to the transportation fee study and an independent fee calculation study as provided in section 2.06.1640.B.3: (1) The use of shared and consolidated parking; (2) A high degree of pedestrian and bicycle access to and throughout the proposed development; (3) The availability of public transit; (4) Extensive trip capture within the proposed development where trips to the proposed development result in visits to multiple businesses in the area via a mode other than automobile; b. The following additional physical development characteristics are associated with trip exchange district land uses: (1) The majority of buildings associated with the proposed development are multi-story building, often more than two stories; (2) Diverse business proprietorships within the development; (3) Primary use at the ground floor is commercial; (4) The majority of individual businesses within the development are less PROOFS Page 118 of 977 than 20,000 square feet; (5) Structures within the development are in near to each other and the public street (with small or no setbacks); (6) Having a high percentage building coverage on the lot and typically in excess of 0.5; (7) The physical characteristics are shared among the entire business area, not just one or a few of the businesses; (8) The area should be at least 50 percent developed as measured by lot area utilized; and (9) The area is the subject of a city enforceable common plan of development, such as an urban renewal plan. (Code 1982, § 3.24.040; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 2, 1996; Ord. No. 1471, § 3, 1998; Ord. No. 1707, § 1(3.24.040), 8-6-2007; Ord. No. 1730, § 1(3.24.040), 1-14-2008) Sec. 2.06.1640. Street impact fees. A. Imposition of transportation impact fees. 1. On or after March 23, 1996, any person who seeks to obtain any of the following forms of development approval is required to pay a transportation impact fee in the amount specified in Table 2.06.1640: a. A building permit; b. Any other permit that will result in the construction of improvements that will generate additional traffic; or c. Any extension of any such permit that was issued before the effective date of the ordinance from which this division is derived; or d. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 2. Notwithstanding subsection A.1 of this section, no impact fee shall be imposed earlier than the issuance of a building permit for developments requiring a building permit. 3. No permits of the types described in subsection A.1 of this section shall be issued until the transportation impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section. B. Computation of amount of transportation impact fee. 1. An applicant required by this division to pay a transportation impact fee may choose to have the amount of such fee determined pursuant to either subsection B.2 or B.3 of this section. The amount of the fee calculated pursuant to either subsection B.2 or B.3 of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to 30 percent as compared with its size on February 22, 1996, or 2,000 square feet, whichever is less. b. The transportation impact fees adopted are those shown in Table 2.06.1640 and as updated as provided for in this division. Beginning on February 16, 2008, the amount of the fee collected shall be 60 percent of the amount PROOFS Page 119 of 977 calculated. 2. Unless an applicant requests that the city determine the amount of such fee pursuant to subsection B.3 of this section, the city shall determine the amount of the required transportation impact fee by reference to Table 2.06.1640. The fee amounts set forth in such table include credits for expected future receipts of state and federal highway funds and expected future receipts of gas tax revenues, and all other non-impact fee sources of funding anticipated to be made by or as a result of new development to be applied to the transportation improvements required to serve new development. a. If the applicant's development is of a type not listed in Table 2.06.1640, then the city shall use the fee applicable to the most nearly comparable type or land use in the table. In making a decision about which use is most nearly comparable, the city shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. If the city determines that there is no comparable type of land use listed in the table, then a new fee shall be determined by: (1) Finding the most nearly comparable trip generation rate from the publication noted in subsection B.2.a. of this section; and (2) Applying the formula set forth in subsection B.3.d of this section. b. If the applicant's development includes a mix of those uses listed in Table 2.06.1640, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to Table 2.06.1640. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any transportation impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the transportation impact fee previously paid pursuant to this division for the same structure, there shall be no refund of transportation impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net positive increase in the fee for the new use as compared to the previous use. However, no new fee shall be imposed unless an additional unit of service demand is created, in accordance with Table 2.06.1640. If necessary to determine such net increase, the city shall be guided by the most recent edition of "Trip Generation: An Information Report" prepared by the Institute of Transportation Engineers; or if such publication is no longer available, then by a similar publication. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development as compared to the previous use or development, there shall be no refund of transportation impact fees previously paid. 3. An applicant may request that the city determine the amount of the required transportation impact fee by reference to an independent fee calculation study for the applicant's development prepared by qualified professional traffic engineers PROOFS Page 120 of 977 and/or economists at the applicant's cost and submitted to the city engineer. Any such study must show the traffic engineering and economic methodologies and assumptions used, including, but not limited to, those forms of documentation listed in subsections B.3.a and B.3.b of this section and must be acceptable to the city pursuant to subsection B.3.c of this section. a. Traffic engineering studies must include documentation of trip generation rates, trip lengths, any percentage of trips from the site that represent net additions to current trips from the site, the percentage of trips that are new trips as opposed to pass-by or divert-link trips, and any other trip data for the proposed land use. b. Economic studies must include documentation of any special factors that the applicant believes will reduce the traffic volumes otherwise attributable to the proposed land use. c. The city shall consider all such documentation and any independent fee calculation study submitted by the applicant, but shall not be required to accept any such study or documentation that the city deems to be inaccurate or unreliable and may request that the applicant submit additional or different documentation for consideration. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating transportation impact fees. d. Upon acceptance, or acceptance with modifications, of an independent fee calculation study and documentation, the city shall use the following formulas to determine the transportation impact fee: Net Impact Fee = Total Impact Cost - Gas Tax Credit - Ad Valorem Credit Where: Total Impact Cost = ((Trip Rate × Assessable Trip Length × % New Trips) / 2) × (1 -Interstate Adj. Factor) × (Cost per Lane Mile/Avg. Capacity Added per Lane Mile) Total Gas Tax Credit = Present Value (Annual Gas Tax Credit), given 4.6 percent interest rate and 25-year facility life Annual Gas Tax Credit = (((Trip Rate × Total Trip Length × % New Trips) / 2) × Effective Days per Year × $(Gallon to Capital)/Fuel Efficiency And where: Trip Rate = the average daily trip generation rate, in vehicle-trips/day. Assessable Trip Length = the actual average trip length for the category, in vehicle miles. Total Trip Length = the assessable trip length plus an adjustment factor of half a mile is added to the trip length to account for the fact that gas taxes are collected for travel on all roads including local roads. % New Trips = adjustment factor to account for trips that are already on the roadway. Divide by two = The total daily miles of travel generated by a particular category (i.e., rate X length X percent new trips) is divided by two to prevent PROOFS Page 121 of 977 the double-counting of travel generated among land use codes since every trip has an origin and a destination. Interstate Adjustment Factor = adjustment factor to account for the travel demand occurring on interstate highways (15.0 percent). Cost per Lane Mile = unit cost to construct one lane mile of roadway, in $/lane mile ($3,678,522.00 per study and will be subject to inflationary adjustments). Average Capacity Added per Lane Mile = represents the average daily traffic on one travel lane at capacity for one lane mile of roadway, in vehicles/lane- mile/day (8,658 per study). Cost per Vehicle Mile of Capacity = unit cost to construct to provide a vehicle mile of capacity ($472.92 per study). Present Value = calculation of the present value of a uniform series of cash flows, gas tax payments in this case, given an interest rate, "i," and a number of periods, "n;" for 4.6 percent interest and a 25-year facility life, the uniform series present worth factor is 14.6768. Effective Days per Year = 365 days. $/Gallon to Capital = the amount of gas tax revenue per gallon of fuel that is used for capital improvements, in $/gallon ($0.102). Fuel Efficiency = average fuel efficiency of vehicles, in vehicle-miles/gallon (17.70). C. Payment of transportation impact fee. 1. An applicant for any of the permits or extensions listed in subsection A.1 of this section shall pay the transportation impact fee required by this division to the city prior to the issuance of any such permit. 2. All funds paid by an applicant pursuant to this division shall be identified as transportation impact fees and shall be promptly deposited in the transportation impact fee fund described in subsection D of this section. D. Transportation impact fee funds. 1. A single transportation impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those transportation impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of transportation impact fee funds. The moneys in the transportation impact fee fund shall be used only as follows: 1. To acquire land for and/or acquire or construct capacity-adding capital improvements to the transportation system reasonably related to the benefits accruing to new development subject to the terms of this division, in accordance with the requirements of state law; or 2. To pay debt service on such capital improvements to the transportation system; or 3. For purposes of refunds or credits, as described in section 2.06.1680 or 2.06.1690.G; and 4. May not be used for: PROOFS Page 122 of 977 a. Operations or maintenance purposes; b. To correct existing deficiencies; or c. For bicycle or pedestrian facilities not built in conjunction with and included in a capacity-adding transportation system facility, otherwise eligible for impact fee funding. F. Exemptions from transportation impact fee. 1. The following types of development shall be exempted from payment of the transportation impact fee: a. Alterations, remodeling, rehabilitations, expansions of existing buildings, or other improvements to an existing structure where no additional vehicle trips will be produced over and above those produced by the existing use; b. Construction of accessory buildings or structures that will not produce additional vehicle trips over and above those produced by the primary building or land use; c. The replacement of a destroyed or partially destroyed building or structure with a new building or structure of the same size and use where no additional vehicle trips will be produced over and above those produced by the original building or structure; d. The installation or replacement of a mobile home on a lot or a mobile home site when a transportation impact fee for such lot or site has previously been paid pursuant to this division or where a mobile home legally existed on such site on or prior to the effective date of the ordinance from which this division is derived; e. Any other type of development for which the applicant can demonstrate that the proposed land use and development will produce no more vehicle trips from such site over and above the trips from such site prior to the proposed development, or for which the applicant can show that a transportation impact fee for such site has previously been paid in an amount that equals or exceeds the transportation impact fee that would be required by this division for such development. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit or a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The city manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Table 2.06.1640-1 The following transportation impact fees apply to developments not located in the central business district or a designated trip exchange district. ITE LUC Land Use Unit Fee (in dollars)* RESIDENTIAL: 210 Single-family (Detached) PROOFS Page 123 of 977 Less than 1,500 sf and very low income(2) du 2,171 Less than 1,500 sf and low income (3) du 3,147 Less than 1,500 sf du 3,968 1,500 to 2,499 sf du 5,396 2,500 sf or larger du 6,082 220 Apartments du 3,339 230 Residential Condominium/Townhouse du 2,946 240 Mobile Home Park du 1,593 LODGING: 310 Hotel room 3,063 320 Motel room 1,678 RECREATION: 430 Golf Course hole 12,295 411 City Park acre 546 444 Movie Theaters 1,000 sf 6,463 INSTITUTIONS: 610 Hospital 1,000 sf 6,023 620 Nursing Home bed 381 520 Elementary School student 315 530 High School student 477 540 University (7,500 or fewer students) (4) student 609 550 University (more than 7,500 students) (4) student 529 560 Church/Synagogue 1,000 sf 2,428 565 Day Care 1,000 sf 7,433 OFFICE: 710 50,000 sf or less 1,000 sf 3,977 710 50,001-100,000 sf 1,000 sf 3,623 710 100,001-200,000 sf 1,000 sf 3,084 710 greater than 200,000 sf 1,000 sf 2,460 720 Medical Office 1,000 sf 9,584 RETAIL: 820 under 50,000 sf 1,000 sf 9,378 PROOFS Page 124 of 977 820 50,000-99,000 sf 1,000 sf 9,587 820 100,000-199,000 sf 1,000 sf 9,331 820 200,000-299,000 sf 1,000 sf 8,567 820 greater than 300,000 sf 1,000 sf 8,144 812 Building Material/Lumber 1,000 sf 21,209 813 Discount Super-Store 1,000 sf 26,996 817 Nursery/Garden Center 1,000 sf 18,903 851 Convenience Store 1,000 sf 44,607 931 Quality Restaurant 1,000 sf 22,036 934 Fast Food Rest w/Drive- Thru 1,000 sf 61,225 841 New/Used Auto Sales 1,000 sf 12,033 890 Furniture Store 1,000 sf 1,684 912 Bank/Savings Drive-in 1,000 sf 31,706 INDUSTRY: 110 General Light Industrial 1,000 sf 2,290 140 Manufacturing 1,000 sf 1,250 150 Warehouse 1,000 sf 1,627 151 Mini-Warehouse 1,000 sf 810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-1. (2) Defined as 50 percent of city median income based on 2007 Gallatin County Average Median Income (AMI). (3) Defined as 80 percent of city median income based on 2007 Gallatin County Average Median Income (AMI). (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate.. Table 2.06.1640-2 The following transportation impact fees apply to developments located in the central business district or within a designated trip exchange district: ITE LUC Land Use Unit Fee (in dollars)* RESIDENTIAL: 210 Single-family (Detached) Less than 1,500 sf and very low income(2) du 2,171 PROOFS Page 125 of 977 Less than 1,500 sf and low income (3) du 3,147 Less than 1,500 sf du 3,968 1,500 to 2,499 sf du 5,396 2,500 sf or larger du 6,082 220 Apartments du 3,339 230 Residential Condominium/Townhouse du 2,946 240 Mobile Home Park du 1,593 LODGING: 310 Hotel room 2,835 320 Motel room 1,333 RECREATION: 430 Golf Course hole 4,333 411 City Park acre 182 444 Movie Theaters 1,000 sf 2,333 INSTITUTIONS: 610 Hospital 1,000 sf 6,023 620 Nursing Home bed 381 520 Elementary School student 315 530 High School student 477 540 University (7,500 or fewer students) (4) student 609 550 University (more than 7,500 students) (4) student 529 560 Church/Synagogue 1,000 sf 2,428 565 Day Care 1,000 sf 7,433 OFFICE: 710 50,000 sf or less 1,000 sf 3,187 710 50,001-100,000 sf 1,000 sf 2,911 710 100,001-200,000 sf 1,000 sf 2,475 710 greater than 200,000 sf 1,000 sf 1,974 720 Medical Office 1,000 sf 9,584 RETAIL: 820 under 50,000 sf 1,000 sf 5,284 820 50,000-99,000 sf 1,000 sf 5,452 820 100,000-199,000 sf 1,000 sf 5,182 PROOFS Page 126 of 977 820 200,000-299,000 sf 1,000 sf 5,115 820 greater than 300,000 sf 1,000 sf 4,999 812 Building Material/Lumber 1,000 sf 21,209 813 Discount Super-Store 1,000 sf 26,996 817 Nursery/Garden Center 1,000 sf 18,903 851 Convenience Store 1,000 sf 44,607 931 Quality Restaurant 1,000 sf 6,009 934 Fast Food Rest w/Drive- Thru 1,000 sf 22,164 841 New/Used Auto Sales 1,000 sf 12,033 890 Furniture Store 1,000 sf 1,684 912 Bank/Savings Drive-in 1,000 sf 24,133 INDUSTRY: 110 General Light Industrial 1,000 sf 2,290 140 Manufacturing 1,000 sf 1,250 150 Warehouse 1,000 sf 1,627 151 Mini-Warehouse 1,000 sf 810 (1) Source: Transportation Impact Fee Study, Appendix F, Table F-2. (2) Defined as 50 percent of city median income based on 2007 Gallatin County Average Median Income (AMI). (3) Defined as 80 percent of city median income based on 2007 Gallatin County Average Median Income (AMI). (4) Impact fee to be assessed on structures with classroom facilities. All auxiliary structures such as administrative buildings and research centers are to be charged at the office land use rate. *Compiler's note: The transportation impact fees listed in this formula shall be adjusted annually as per section 2.06.1700.K. (Code 1982, § 3.24.050; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 3, 1996; Ord. No. 1464, § 1, 1998; Ord. No. 1471, § 4, 1998; Ord. No. 1633, § 1, 4-18-2005; Ord. No. 1707, § 1(3.24.050), 8-6-2007; Ord. No. 1711, § 2, 8-6- 2007; Ord. No. 1730, § 1(3.24.050), 1-14-2008) Sec. 2.06.1650. Fire protection impact fees. A. Imposition of fire protection impact fees. 1. On or after March 23, 1996, any person who seeks to obtain: a. A building permit; or b. Any other permit that will result in construction that will generate demand for fire protection services; or c. Any extension of any such permit that was issued before the effective date of PROOFS Page 127 of 977 the ordinance from which this division is derived, is required to pay a fire protection impact fee in the amount specified in this division; or d. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 2. No permits of the types described in subsection A.1 of this section shall be issued until the fire protection impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section. B. Computation of amount of fire protection impact fee. 1. An applicant required by this division to pay a fire protection impact fee may choose to have the amount of such fee determined pursuant to either subsection B.2 or B.3 of this section. The amount of the fee calculated pursuant to either subsection B.2 or B.3 of this section shall be subject to the following adjustment: a. For the first expansion of an existing nonresidential building, the amount calculated shall not include the amount calculated for the expansion of up to 30 percent as compared with its size on February 22, 1996, or 2,000 square feet, whichever is less. 2. Unless an applicant requests that the city determine the amount of such fee pursuant to subsection B.3 of this section, the city shall determine the amount of the required fire protection impact fee by reference to Table 2.06.1650. a. If the type of development that a permit is applied for is not listed in Table 2.06.1650, then the city shall use the fee applicable to the most nearly comparable type or land use in the table. b. If the type of development that a permit is applied for includes a mix of those uses listed in Table 2.06.1650, then the fee shall be determined by adding up the fees that would be payable for each use if it were a freestanding use pursuant to Table 2.06.1650. c. If the applicant is applying for an extension of a permit issued previously, then the fee shall be the net increase between the fee applicable at the time of the current permit application and any fire protection impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the current permit application is lower than the fire protection impact fee previously paid pursuant to this division for the same structure, there shall be no refund of fire protection impact fees previously paid. d. If the applicant is applying for a permit to allow a change of use or for the expansion, redevelopment, or modification of an existing development, the fee shall be based on the net increase in the fee for the new use as compared to the previous use. In the event that the proposed change of use, expansion, redevelopment, or modification results in a net decrease in the fee for the new use or development as compared to the previous use or development, there shall be no refund of fire protection impact fees previously paid. 3. An applicant may request that the city determine the amount of the required fire protection impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by qualified professional fire protection experts and/or economists and submitted to the city fire chief. Any such study shall be based on the same service standards and unit costs for fire PROOFS Page 128 of 977 protection used in the fire impact fee study prepared by HDR Engineering dated July 2008 and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating fire protection impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new fire protection facilities and equipment created by the applicant's proposed development than the applicable fee shown in Table 2.06.1650, then the fire protection impact fee due under this division may be calculated according to such study. C. Payment of fire protection impact fees. 1. An applicant required by this division to pay a fire protection impact fee shall pay such fee to the city prior to the issuance of any of the permits listed in subsection A.1 of this section. 2. All funds paid by an applicant pursuant to this division shall be identified as fire protection impact fees and shall be promptly deposited in the fire protection impact fee fund described in subsection D of this section. D. Fire protection impact fee funds. 1. A single fire protection impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those fire protection impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of fire protection impact fee funds. The moneys in the fire protection impact fee fund shall be used only: 1. To acquire or construct fire protection improvements within the city; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance the acquisition or construction of fire protection improvements within the city; or 3. As described in section 2.06.1680 or 2.06.1690.G. F. Exemptions from fire protection impact fee. 1. The following types of development shall be exempted from payment of the fire protection impact fee: a. Reconstruction, expansion, or replacement of a previously existing residential unit that does not create any additional residential units. b. Construction of unoccupied accessory units related to a residential unit. c. Projects that the applicant can demonstrate will produce no greater demand for fire protection from such land than existed prior to issuance of such permit. d. Projects for which a fire protection impact fee has previously been paid in an amount that equals or exceeds the fire protection impact fee that would be required by this division. 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. PROOFS Page 129 of 977 3. The city manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Table 2.06.1650 Fire/EMS Impact Fee Schedule Type of Development Impact Fee* Detached residential per dwelling unit $780.20 Attached residential, per dwelling unit $655.92 Commercial/Industrial/Institutional per 1,000 gross sq. ft. of building space $178.84 *Compiler's Note: The fire protection impact fees listed in this formula shall be adjusted annually as per section 2.06.1700.K. (Code 1982, § 3.24.060; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 4, 1996; Ord. No. 1464, § 2, 1998; Ord. No. 1471, § 5, 1998; Ord. No. 1633, § 2, 4-18-2005; Ord. No. 1707, § 1(3.24.060), 8-6-2007; Ord. No. 1711, § 2, 8-6- 2007; Ord. No. 1711, § 3, 8-6-2007; Ord. No. 1730, § 1(3.24.060), 1-14-2008; Ord. No. 1746, § 3, 8-4-2008) Sec. 2.06.1660. Water impact fees. A. Imposition of water impact fees. 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city water system, or who is subject to subsection B.2.b of this section and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of the ordinance from which this division is derived, is required to pay a water impact fee in the amount specified in this division; or 2. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section. B. Computation of amount of water impact fee. 1. The city shall determine the amount of the required water impact fee by reference to Table 2.06.1660 unless the applicant chooses to submit an individualized calculation pursuant to subsection B.2.a of this section or the city determines the application to be subject to subsection B.2.b of this section. If the applicant is applying for a replacement for a water connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any water impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the water impact fee previously paid pursuant to this division for the same structure, there shall be no refund of water impact fees previously paid. 2. Individualized calculations. a. An applicant may request that the city determine the amount of the required PROOFS Page 130 of 977 water impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the city public service director. Any such study shall be based on the same service standards and unit costs used in the water impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or accepted with modifications by the city as the basis for calculating water impact fees. If such study is accepted, or accepted with modifications, as a more accurate measure of the demand for new water facilities created by the applicant's proposed development than the applicable fee shown in Table 2.06.1660, then the water impact fee due under this division may be calculated according to such study. b. The city may identify a user as having extraordinary demands for water service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 2.06.1660. In this circumstance the city shall prepare a customized calculation based upon the large meter calculation methodology in Exhibit 6 of the water impact fee study. The impact fee paid for water meters larger than three inches as of the effective date of the ordinance from which this division is derived may be adjusted based on actual usage. If usage is greater than 110 percent of anticipated volume during the 12-month period of time beginning six months after building occupancy is granted by the city, an additional impact fee may be charged, using the same techniques for calculating peak day and storage EDUs and multiplying by the peak day impact fee cost per EDU and the storage impact fee cost per EDU then in effect. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. C. Payment of water impact fee. 1. An applicant required by this division to pay a water impact fee shall pay such fee to the city prior to the issuance of a water connection permit. 2. All funds paid by an applicant pursuant to this division shall be identified as water impact fees and shall be promptly deposited in the water impact fee fund described in subsection D of this section. D. Water impact fee funds. 1. A single water impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those water impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of water impact fee funds. The moneys in the water impact fee fund shall be used only: 1. To acquire or construct improvements to the city water system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city water system; or 3. As described in section 2.06.1680 or 2.06.1690.G. F. Exemptions from water impact fees. PROOFS Page 131 of 977 1. The following types of development shall be exempted from payment of the water impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a water impact fee was previously paid, and that does not require an additional or larger water meter. 2. The installation of fire lines for fire protection shall be exempted from payment of the water impact fee. 3. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 4. The city manager or his designee shall determine the validity of any claims for exemption pursuant to the criteria set forth in subsections F.1 and F.2 of this section. Table 2.06.1660 Water Impact Fee Schedule* Size of Water Meter Cost Per Meter 3/4 inch $3,310.00 1 inch $8,275.00 1 1/2 inch $16,550.00 2 inch $26,480.00 3 inch $52,960.00 Larger than 3 inch calculated *Compiler's Note: The cost per meter fees listed in this formula shall be adjusted annually as per section 2.06.1700.K. (Code 1982, § 3.24.070; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 5, 1996; Ord. No. 1464, § 3, 1998; Ord. No. 1471, § 7, 1998; Ord. No. 1633, § 3, 4-18-2005; Ord. No. 1707, § 1(3.24.070), 8-6-2007; Ord. No. 1711, § 4, 8-6- 2007; Ord. No. 1730, § 1(3.24.070), 1-14-2008) Sec. 2.06.1670. Wastewater impact fees. A. Imposition of wastewater impact fees. 1. On or after March 23, 1996, any person who seeks to obtain a permit for connection to the city wastewater system, or who is subject to subsection B.2.b of this section and applies for a city permit to expand or add to the structure served by a previously approved water connection, or any extension of such a permit issued before the effective date of the ordinance from which this division is derived is required to pay a wastewater impact fee in the amount specified in this division; or PROOFS Page 132 of 977 2. Any delayed payment of impact fees as specified and approved by the city commission in accordance with chapter 10, article 8. 3. No permits for connection to the city water system shall be issued until the water impact fee described in this division has been paid, unless the development for which the permit is sought is exempted by subsection F of this section. B. Computation of amount of wastewater impact fee. 1. The city shall determine the amount of the required wastewater impact fee by reference to Table 2.06.1660 unless the applicant chooses to submit an individualized calculation pursuant to subsection B.2.a of this section or the city determines the application to be subject to subsection B.2.b of this section. If the applicant is applying for a replacement for a wastewater connection permit issued previously, then the fee shall be the net positive difference between the fee applicable at the time of the current permit application and any wastewater impact fee previously paid pursuant to this division for the same structure. In the event that the fee applicable at the time of the replacement permit application is lower than the wastewater impact fee previously paid pursuant to this division for the same structure, there shall be no refund of wastewater impact fees previously paid. 2. Individualized calculations. a. An applicant may request that the city determine the amount of the required wastewater impact fee by reference to an independent fee calculation study for the applicant's development prepared at the applicant's cost by a professional engineer and/or economist and submitted to the city public service director. Any such study shall be based on the same service standards and unit costs used in the wastewater impact fee study prepared by HDR Engineering dated May 2007, and as updated, and must document the economic methodologies and assumptions used. Any independent fee calculation study submitted by an applicant may be accepted, rejected, or modified by the city as the basis for calculating wastewater impact fees. If such study is accepted or accepted with modifications as a more accurate measure of the demand for new wastewater facilities created by the applicant's proposed development than the applicable fee shown in Table 2.06.1670, then the wastewater impact fees due under this division shall be calculated according to such study. b. The city may identify a user as having extraordinary demands for wastewater service which are not accurately represented by the average usage which was relied upon by the methodology which generated Table 2.06.1670. In this circumstance the city shall prepare a customized calculation based upon the methodology in the water impact fee study. When applicable an adjustment for high strength discharge will be applied. The impact fee paid for water meters larger than three inches as of the effective date of the ordinance from which this division is derived may be adjusted based on actual usage. If usage is greater than 110 percent of anticipated volume during the 12-month period of time beginning six months after building occupancy is granted by the city, an additional impact fee may be charged, using the same techniques for calculating treatment and collection in EDUs and multiplying by the impact fee cost per EDU. The additional impact fee is the positive net between a previously calculated impact fee and the impact fee based upon the metered demand. PROOFS Page 133 of 977 C. Payment of wastewater impact fee. 1. An applicant required by this division to pay a wastewater impact fee shall pay such fee to the city prior to the issuance of a wastewater connection permit. 2. All funds paid by an applicant paid pursuant to this division shall be identified as wastewater impact fees and shall be promptly deposited in the wastewater impact fee fund described in subsection D of this section. D. Wastewater impact fee funds. 1. A single wastewater impact fee fund is created and such fund shall be maintained in an interest bearing account. 2. Such fund shall contain only those wastewater impact fees collected pursuant to this division and any interest which may accrue from time to time on such amounts. E. Use of wastewater impact fee funds. The moneys in the wastewater impact fee fund shall be used only: 1. To acquire or construct improvements to the city wastewater system; or 2. To pay debt service on any portion of any future general obligation bond issue or revenue bond issue used to finance improvements to the city wastewater system; or 3. As described in section 2.06.1680 or section 2.06.1690.G. F. Exemptions from wastewater impact fees. 1. The following types of development shall be exempted from payment of the wastewater impact fee: a. Alteration or expansion of an existing building that does not require an additional or larger water meter; b. Replacement of a building or structure of the same size that does not require an additional or larger water meter; c. The location of mobile home on a site for which a wastewater impact fee was previously paid and that does not require an additional or larger water meter; 2. Any such claim for exemption must be made no later than the time when the applicant applies for the first permit of a type listed in subsection A.1 of this section for the proposed development, and any claim for exemption not made at or before that time shall have been waived. 3. The city manager or his designee shall determine the validity of any claim for exemption pursuant to the criteria set forth in subsection F.1 of this section. Table 2.06.1670 Wastewater Impact Fee Schedule Size of Water Meter Cost Per Meter* 3/4 inch $2,955.00 1 inch $7,388.00 1 1/2 inch $14,775.00 2 inch $23,640.00 PROOFS Page 134 of 977 3 inch $47,280.00 Larger than 3 inch calculated *Compiler's Note: The cost per meter fees listed in this formula shall be adjusted annually as per section 2.06.1700.K. (Code 1982, § 3.24.080; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 6, 1996; Ord. No. 1464, § 4, 1998; Ord. No. 1471, § 7, 1998; Ord. No. 1633, § 4, 4-18-2005; Ord. No. 1707, § 1(3.24.080), 8-6-2007; Ord. No. 1730, § 1(3.24.080), 1-14-2008) Sec. 2.06.1680. Refunds of development impact fees paid. A. Refunds of development impact fees shall be made only in the following instances and in the following manner: 1. Upon application to the impact fee coordinator by the applicant, the city shall refund the development impact fee paid if capacity is available and service is denied. 2. Expenses and encumbrances. a. Upon application to the impact fee coordinator, the city shall refund the development impact fee paid and not expended or encumbered within ten years from the date the development impact fee was paid or spent in a manner not in accordance with this division or MCA 17-6-1602. Refunds shall be paid to the owner of the property at the time the refund is due. In determining whether development impact fees have been expended or encumbered, fees shall be considered encumbered on a first-in, first-out (FIFO) basis. b. When the right to a refund exists due to a failure to expend or encumber development impact fees, the city shall publish written notice within 30 days after the expiration of the ten year period from the date development impact fee was paid. The published notice shall contain the heading "Notice of Entitlement to Development Impact Fee Refund." 3. If an applicant has paid a development impact fee required by this division and has obtained any of the types of permits or extensions listed in section 2.06.1640.A.1, 2.06.1650.A.1, 2.06.1660.A.1, or 2.06.1670.A.1, and the permit or extension for which the fee was paid later expires without the possibility of further extension, then the applicant who paid such fee shall be entitled to a refund of the fee paid, without interest. In order to be eligible to receive such refund, the applicant who paid such fee shall be required to submit an application for such refund within 30 days after the expiration of the permit or extension for which the fee was paid. 4. A refund application shall be made to the impact fee coordinator within one year from the date such refund becomes payable under subsections A and B of this section, or within one year from the date of publication of the notice of entitlement of a refund under subsection B of this section, whichever is later. Any refund not applied for within said time period shall be deemed waived. 5. A refund application shall include information and documentation sufficient to permit the impact fee coordinator to determine whether the refund claimed is proper and, if so, the amount of such refund. 6. A refund shall include a pro rata share of interest actually earned on the unused or excess development impact fee paid. PROOFS Page 135 of 977 7. All refunds shall be paid within 60 days after the impact fee coordinator determines that such refund is due. 8. Any refund payable pursuant to subsections A and B of this section, shall be made to the record owner of property as of the date the refund was due. (Code 1982, § 3.24.090; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 7, 1996; Ord. No. 1707, § 1(3.24.090), 8-6- 2007; Ord. No. 1730, § 1(3.24.090), 1-14-2008) Sec. 2.06.1690. Credits against development impact fees. A. After the effective date of the ordinance from which this division is derived, mandatory or voluntary land or easement dedications for transportation, fire protection, water, or wastewater improvements, and mandatory or voluntary acquisition or construction of capital improvements to the transportation system or the city fire protection, water, or wastewater systems by an applicant in connection with a proposed development may result in a pro rata credit against the development impact fee for the same type of service or facility otherwise due for such development, except that no such credit shall be awarded for: 1. Projects or land dedications not listed on the impact fee capital improvements program (CIP); or 2. Land dedications for, or acquisition or construction of, project-related improvements as defined in section 2.06.1630; or 3. Any voluntary land or easement dedications not accepted by the city; or 4. Any voluntary acquisition or construction of improvements not approved in writing by the city prior to commencement of the acquisition or construction. B. In order to obtain a credit against development impact fees otherwise due, an applicant must submit a written offer to dedicate to the city specific parcels of qualifying land or easements, or to acquire or construct specific improvements to the transportation system or the city fire protection, water, or wastewater systems in accordance with all applicable state or city design and construction standards, and must specifically request a credit against such development impact fees. Such written request must be made on a form provided by the city, must contain a statement under oath of the facts that qualify the applicant to receive a credit, must be accompanied by documents evidencing those facts, and must be approved not later than the initiation of construction of improvements or the acceptance by the city of land dedications, or the applicant's claim for the credit shall be waived. The granting of credit shall be approved by the city commission. The city shall approve a credit only after showing that the need for the dedication or construction is clearly documented pursuant to MCA 7-6-1602 and that any land dedication proposed for credit is determined to be appropriate for the proposed use. 1. Upon receipt of a complete application for impact fee credit, the impact fee coordinator shall coordinate review of the application for compliance with the requirements of this division and other relevant requirements. Upon completion of the review the impact fee coordinator shall either: forward the application to the city manager, or when required to the city commission, for approval; or if the application is insufficient or otherwise does not conform to the city's requirements, shall communicate in writing to the applicant the reason the credit request failed. If the application satisfies the requirements and is approved, the credit may be provided in any of the allowed forms as described in subsection G of this section. a. Factors for consideration: (1) When credit is sought for an improvement listed in the second through fifth years of the CIP after the current fiscal year there shall be a PROOFS Page 136 of 977 rebuttable presumption that any credit shall be awarded as a credit balance and not as cash. (2) The final decision to approve a credit request in excess of $1,000,000.00 from a single impact fee fund shall be made by the city commission. (3) In the event that the city manager believes that a credit request may result in a significant effect on policy decisions the credit request may be referred to the city commission for final action, regardless of the dollar amount. (4) In the event that the city considers that award of a credit may negatively impact its ability to construct improvements listed sooner in time on the CIP, they may decline to award a credit at that time without removing the item from the CIP. 2. Appeals relating to staff decisions on credit requests may be appealed to the city commission per section 2.06.1700. C. The credit due to an applicant shall be calculated and documented as follows: 1. Credit for qualifying land or easement dedications shall, at the applicant's option, be valued at: a. 100 percent of the most recent assessed value for such land as shown in the records of the city assessor; or b. That fair market value established by a private appraiser acceptable to the city in an appraisal paid for by the applicant. 2. In order to receive credit for qualifying acquisition or construction of transportation, fire protection, water, or wastewater improvements, the applicant shall submit complete engineering drawings, specifications, and construction cost estimates to the city. The city shall determine the amount of credit due based on the information submitted, or, if it determines that such information is inaccurate or unreliable, then on alternative engineering or construction costs acceptable to the city. D. Approved credits shall become effective at the following times: 1. Approved credit for land or easement dedications shall become effective when the land has been conveyed to the city in a form acceptable to the city, and at no cost to the city, and has been accepted by the city commission. When such conditions have been met, the city shall note that fact in the credit record maintained by the city department of finance. Upon request of the credit holder, the city shall send the credit holder a letter stating the credit balance available to the credit holder. 2. Approved credits for the acquisition or construction of transportation, fire protection, water, or wastewater improvements shall generally become effective when: a. All required construction has been completed and has been accepted by the city; and b. A suitable maintenance and warranty bond has been received and approved by the city; and c. All design, construction, inspection, testing, bonding, and acceptance procedures have been completed in compliance with all applicable city and state procedures. PROOFS Page 137 of 977 However, approved credits for the construction of improvements may become effective at an earlier date if the applicant posts security in the form of a performance bond, irrevocable letter of credit, or escrow agreement, and the amount and terms of such security are accepted by the city. At a minimum, such security must be in the amount of the approved credit or an amount determined to be adequate to allow the city to construct the improvements for which the credit was given, whichever is higher. When such conditions have been met, the city shall note that fact in the credit record maintained by the city department of finance. Upon request of the credit holder, the city shall also send the credit holder a letter stating the credit balance available to the credit holder. E. Approved credits may be used to reduce the amount of development impact fees due from any proposed development for the same type of service or facility for which the applicant dedicated land or acquired or constructed improvements until the amount of the credit is exhausted. Each time a request to use credit from a mandatory or voluntary dedication, acquisition, or construction is presented to the city, the city shall reduce the amount of the development impact fee of the same type otherwise due from the applicant and shall note in the city records the amount of credit remaining, if any. In the case of a mandatory dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee otherwise due under this division shall be deemed excess credit that is remaining and available for use by the applicant. In the case of a voluntary dedication, acquisition, or construction, any credit in excess of the amount of the development impact fee of the same type and applicable to the project, as shown in Tables 2.06.1640, 2.06.1650, 2.06.1660, or 2.06.1670, shall be deemed excess credit that is remaining and available for use by the applicant. Upon request of the credit holder, the city shall also send the credit holder a letter stating the amount of credit remaining to the credit holder. F. Approved credit shall only be used to reduce the amount of development impact fees of the same type otherwise due under this division and shall not be paid to the applicant in cash or in credit against any development impact fees for a different type of facility or service or against any other moneys due from the applicant to the city, except as described in subsection G of this section. G. If the amount of approved credit for a mandatory dedication, acquisition, or construction exceeds the amount of the development impact fees of the same type otherwise due under this division, the applicant may request in writing that the city provide for reimbursement of any excess credit to the applicant in cash. Such written request must be approved not later than the initiation of construction of improvements, or the acceptance by the city of land dedications, or the applicant's claim shall be waived. Upon receipt of such a written request, the city may, at its discretion: 1. Arrange for the reimbursement of such excess credit from the impact fee fund for the same type of service or facility from development impact fees paid by others; 2. Arrange for the reimbursement of such excess credit through the issuance of a promissory note payable in not more than ten years and bearing interest equal to the interest rate paid by the city for its long-term debt; or 3. Reject the request for cash and provide credit. Such excess credit shall be valued at 100 percent of actual developer costs for the excess improvements, or at the actual appraised value of such excess improvements, at the city's option. H. Credit may be transferred from one holder to another by any written instrument clearly identifying the credit issued under subsection C of this section that is to be transferred, provided that such instrument is signed by both the transferor and transferee, and that the document is delivered to the city for registration of the change in ownership. I. In the event that land is annexed into the city from the county after the effective PROOFS Page 138 of 977 date of the ordinance from which this division is derived, and that road or fire impact fees have been previously paid to the county, an applicant proposing a development on the land may request in writing a credit against the transportation impact fee equal to the amount of any road impact fee paid to the county for the same land and may also request a credit against the fire protection impact fee equal to the amount of any fire protection impact fee paid to the county for the same land. Such written request must be filed not later than the time when an applicant applies for the first permit of a type listed in section 2.06.1640.A.1 or 2.06.1650.A.1 that creates an obligation to pay the type of development impact fee against which the credit is requested, or the applicant's claim shall be waived. (Code 1982, § 3.24.100; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 8, 1996; Ord. No. 1471, § 8, 1998; Ord. No. 1707, § 1(3.24.100), 8-6-2007; Ord. No. 1730, § 1(3.24.100), 1-14-2008) Sec. 2.06.1700. Miscellaneous provisions. A. Interest earned on moneys in any impact fee fund shall be considered part of such fund and shall be subject to the same restrictions on use applicable to the impact fees deposited in such fund. B. No moneys from any impact fee fund shall be spent for periodic period or routine maintenance of any facility of any type or to cure deficiencies in public facilities existing on the effective date of the ordinance from which this division is derived. C. Nothing in this division shall restrict the city from requiring an applicant to construct reasonable project improvements required to serve the applicant's project, whether or not such improvements are of a type for which credit is available under section 2.06.1690. D. The city shall maintain accurate records of the development impact fees paid, including the name of the person paying such fees, the project for which the fees were paid, the date of payment of each fee, the amounts received in payment for each fee, and any other matters that the city deems appropriate or necessary to the accurate accounting of such fees, and such records shall be available for review by the public during city business hours. E. At least once during each fiscal year of the city, the city 65manager Administrative Services director shall present to the city commission a proposed impact fee capital improvements program for the transportation system, fire protection system, water system, and wastewater system, which identifies the capacity-adding capital improvements that will benefit new development subject to the terms of this division, exclusive of any improvements needed to correct existing deficiencies or for operation or maintenance purposes. Such capital improvements program shall assign moneys from each impact fee fund to specific projects and related expenses for improvements to the type of facilities or services for which the fees in that fund were paid. Any moneys, including any accrued interest, not assigned to specific projects within such capital improvements program and not expended pursuant to section 2.06.1680 or 2.06.1690.G shall be retained in the same impact fee fund until the next fiscal year. The impact fee capital improvements program shall be adopted by the city commission as a supplemental document to the city budget. The impact fee capital improvements program shall schedule the construction of capital improvements to serve projected growth and project capital improvement costs, expenditures and impact fee fund revenues for a five-year period. The individual fee funds shall maintain a positive fiscal balance. The program may be amended by a majority vote of the city commission. The city manager shall adopt and revise, as needed, an administrative impact fee manual to carry out the purposes of this division. F. The city shall be entitled to retain not more than five percent of the development 65 Note change requested by city staff. PROOFS Page 139 of 977 impact fees collected as payment for the expenses of collecting the fee and administering this division. G. If a development impact fee has been calculated and paid based on a mistake or misrepresentation, it shall be recalculated. Any amounts overpaid by an applicant shall be refunded by the city to the applicant within 30 days after the city's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such overpayment. Any amounts underpaid by the applicant shall be paid to the city within 30 days after the city's acceptance of the recalculated amount, with interest at the rate of five percent per annum since the date of such underpayment. In the event the underpayment is caused by an error attributed solely to the city, the applicant shall pay the recalculated amount without interest. In the case of an underpayment to the city, the city shall not issue any additional permits or approvals for the project for which the development impact fee was previously paid until such underpayment is corrected; and if amounts owed to the city are not paid within such 30-day period, the city may also repeal any permits issued in reliance on the previous payment of such development impact fee and refund such fee to the then current owner of the land. H. In order to promote affordable workforce housing of the city, the city commission may waive impact fees for workforce housing lots approved by the city commission pursuant to chapter 10, article 8, by paying some or all of the impact fee from other funds of the city that are not restricted to other uses. In order to promote the economic development of the city and the provision of affordable housing in the city, the city commission may agree to pay some or all of the development impact fees imposed on a proposed development by this division from other funds of the city that are not restricted to other uses. Any such decision to pay development impact fees on behalf of an applicant shall be at the discretion of the city commission and shall be made pursuant to goals and objectives previously adopted by the city commission to promote economic development and/or affordable housing. I. 1. Any determination made by any official of the city charged with the administration of any part of this division may be appealed to the development impact fees review committee by filing: (a) A written notice of appeal on a form provided by the city; (b) A written explanation of why the appellant feels that a determination was in error; and (c) An appeal fee of $500.00 with the impact fee coordinator within ten working days after the determination for which the appeal is being filed. 2. The development impact fees review committee shall meet to review the appeal within 30 working days of the date the written appeal was presented to the impact fee coordinator. If the appellant is dissatisfied with the decision of the development impact fees review committee, the appellant may appeal the decision to the city commission by filing a written request with the city clerk within ten working days of the committee's decision. At the regular meeting following the filing of the appeal, the city commission shall fix a time and place for hearing the appeal; and the city clerk shall mail notice of the hearing to the appellant at the address given in the notice of appeal. The hearing shall be conducted at the time and place stated in such notice given by the city commission. The determination of the city commission shall be final. If the city commission concludes that all or part of a determination made by an official of the city charged with the administration of any part of this division was in error, then the appeal fee described in this subsection shall be returned to the appellant. J. Updating of impact fee information. PROOFS Page 140 of 977 1. The facility plans described in this division shall be reviewed by the city at least once every five years and if a revision of a facility plan to address changed conditions is deemed necessary by the city, the plan shall be updated. 2. The development impact fees described in this division, fee studies, data and analysis relied upon and required by MCA 7-6-1602, and the administrative procedures and manual of this division shall be updated at least once every three fiscal years. 3. The impact fee capital improvement program shall be reviewed and updated as provided in section 2.06.1700.E. 4. The purpose of the review and updating of impact fee related documentation is to ensure that: a. The demand and cost assumptions underlying such fees are still valid; b. The resulting fees do not exceed the actual cost of constructing improvements that are of the type for which the fee was paid and that are required to serve new development; c. The moneys collected or to be collected in each impact fee fund have been, and are expected to be, spent for improvements of the type for which such fees were paid; and d. That such improvements will benefit those developments for which the fees were paid. K. The development impact fees shown in Tables 2.06.1640, 2.06.1650, 2.06.1660, and 2.06.1670 shall be adjusted annually to reflect the effects of inflation on those costs for improvements set forth in the impact fee studies. On January 1 of each year unless and until the fees in Tables 2.06.1640, 2.06.1650, 2.06.1660, and/or 2.06.1670 are revised or replaced, and then beginning in the subsequent calendar year, each fee amount set forth in each such table shall be adjusted by multiplying such amount by one plus the value of the Construction Cost Index published in the first December edition of the current year. (Source: Engineering News Record.) The right-of-way component of the transportation impact fee shall be adjusted by multiplying the value of the right-of-way component of the fee by one plus the percentage value of the increase in taxable value from the preceding year. (Source: Montana Department of Revenue.) Such adjustments in such fees shall become effective immediately upon calculation by the city and shall not require additional action by the city commission to be effective. L. Violation of this division shall be a misdemeanor and shall be subject to those remedies provided in section 1.01.210. Knowingly furnishing false information to any official of the city charged with the administration of this division on any matter relating to the administration of this division, including without limitation the furnishing of false information regarding the expected size, use, or traffic impacts from a proposed development, shall be a violation of this division. In addition to, or in lieu of, any criminal prosecution, the city or any applicant for a permit of the types described in section 2.06.1640.A.1, 2.06.1650.A.1, 2.06.1660.A.1, or 2.06.1670.A.1 shall have the right to sue in civil court to enforce the provisions of this division. M. The section titles used in this division are for convenience only and shall not effect affect the interpretation of any portion of the text of this division. N. Any judicial action or proceeding to attack, review, set aside, or annul the reasonableness, legality, or validity of any development impact fee must be filed and service of process effected within 90 days following the date of imposition of the fee or the final determination of the city commission, whichever is the later. PROOFS Page 141 of 977 (Code 1982, § 3.24.110; Ord. No. 1414, § 1, 1996; Ord. No. 1418, § 9, 1996; Ord. No. 1471, § 9, 1998; Ord. No. 1707, § 1(3.24.110), 8-6-2007; Ord. No. 1711, § 5, 8-6-2007; Ord. No. 1730, § 1(3.24.110), 1-14-2008; Ord. No. 1746, § 3, 8-4-2008) Secs. 2.06.1710--2.06.1840. Reserved. DIVISION 10. LIVING WAGE Sec. 2.06.1850. Title and purpose. This division shall be known as the "City of Bozeman Quality Jobs and Living Wage Ordinance." The purpose of this division is to prescribe a living wage for City employees and to prescribe that businesses receiving certain financial assistance from the city pay employees a minimum level of compensation. (Ord. No. 1554, § 1(2.96.010), 12-19-2001) Sec. 2.06.1860. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "City" means the City of Bozeman and all its agencies, departments and offices. 2. "Covered regular employee" shall mean any employee regularly employed for 20 or more hours per week by the city or by a recipient of financial assistance from the city. Covered regular employee does not include part-time, seasonal, temporary, short-term, or probationary employees, or an employee who is also an owner under a Chapter S or C corporation. 3. "Financial assistance" means financial support from the city for any of the following city programs: a. Community Development Block Grant Economic Development Revolving Loan Fund (CDBG Revolving Loan); and b. Tax Incentive Program for New Industry or Expanding Industry Under MCA 15-24-1401 et seq. (Tax abatement). 4. "Health benefits" means an offer by the recipient or city to its employees to pay at least $1.00 per hour towards the provision of health care benefits for employees or for employees and their dependents. The health benefits described herein shall be increased by an amount equal to the increase in the Consumer Price Index (CPI-U) for the Western Region for expenditure category medical care for the 12-month period ending in the previous November. 5. "Living wage" means a wage calculated on an hourly basis equal to $8.50 with health benefits or $9.50 without health benefits paid to a covered regular employee; a wage calculated on an hourly basis equal to $8.07 with health or without health benefits paid to a probationary employee; a wage calculated on an hourly basis equal to $8.0618 with health benefits or without health benefits paid to a seasonal employee; a wage calculated on an hourly basis equal to $7.4933 with health benefits or without health benefits paid to a temporary employee; and a wage calculated on an hourly basis equal to $7.4933 with health benefits or without health benefits paid to a short-term employee. Beginning on or after January 1, 2004, the living wage described herein shall be increased at the beginning of the fiscal year of the city or recipient, or annually, each year thereafter by an amount equal to the change in the most recent Consumer Price Index, Class "B" and "C" for the Western Region. PROOFS Page 142 of 977 6. "Part-time employee" means an employee regularly employed for less than 20 hours per week by the city or by a recipient of financial assistance from the city. Part-time employee does not include seasonal, temporary, short-term, or probationary employees. 7. "Probationary employee" means a current regular employee designated as probationary and one who has not been employed for a period of more than six months from the most recent date of hire. Neither this definition nor payment of probationary employees a living wage is intended to establish a shorter probationary period than established by the city or recipient receiving financial assistance from the city nor intended to preclude the extension of a probationary period by the city or recipient receiving financial assistance from the city. 8. "Recipient" means any person, entity, joint venture, joint stock company, partnership, association, club, company, corporation, business, trust, governmental entity, or organization. 9. "Seasonal employee" means a regular employee who is designated as seasonal, who performs duties interrupted by the seasons, and who may be recalled without the loss of rights or benefits accrued during the preceding season. 10. "Short-term worker" means a person who: a. Is hired by an agency for an hourly wage established by the agency; b. May not work for the agency more than 90 days in a continuous 12-month period; c. Is not eligible for regular status; d. May not be hired into another position by the agency without a competitive selection process; and e. Is not eligible to earn the leave and holiday benefits or group insurance benefits. 11. "Temporary employee" means an employee who: a. Is designated as a temporary employee for a definite period of time not to exceed 12 months; b. Performs temporary duties or regular duties on a temporary basis; c. Is not eligible for regular status; d. Is terminated at the end of the employment period; and e. Is not eligible to become a regular employee without a competitive selection process. (Ord. No. 1554, § 1(2.96.020), 12-19-2001) Sec. 2.06.1870. Living wage for city employees. On and after July 1, 2002, the city shall pay to employees a living wage, except as provided by section 2.06.1900 and except for any employee that is a member of a bargaining unit that has not negotiated a new collective bargaining agreement since the effective date of the ordinance from which this division is derived. (Ord. No. 1554, § 1(2.96.030), 12-19-2001) PROOFS Page 143 of 977 Sec. 2.06.1880. Living wage for employees of recipients of financial assistance. On and after July 1, 2002, any recipient receiving financial assistance the tax abatement program shall pay its employees a living wage. On or after July 1, 2002, any recipient receiving financial assistance under the CDBG Revolving Loan program with less than 15 employees shall pay its employees a living wage within three years of receiving financial assistance. On or after July 1, 2002, any recipient receiving financial assistance under the CDBG Revolving Loan program with 15 or more employees shall pay its covered employees a living wage. This section applies only to recipients that make application and receive financial assistance after the effective date of the ordinance from which this division is derived. It does not apply to recipients receiving financial assistance on or before the effective date of the ordinance from which this division is derived. (Ord. No. 1554, § 1(2.96.040), 12-19-2001) Sec. 2.06.1890. Proof of wages and benefits and other requirements. A. Each recipient of financial assistance shall keep full and accurate payroll and benefits records for each covered employee. The city may demand and examine, and it shall be the duty of every recipient, and agent thereof, to keep and furnish to the city copies of payroll and benefits records which relate to wages paid to employees by recipients receiving financial assistance from the city. Annually or upon request by the city, the recipient receiving financial assistance shall provide proof of wages and benefits for employees for the period for which assistance is being provided or five years, whichever is longer. B. Recipients of financial assistance shall execute an agreement with the city providing for the payment of living wages as provided in section 2.06.1880 to employees. The agreement shall contain a notice in substantially the following form: "The recipient agrees to pay all workers employed by the recipient in the performance of this loan [or grant], a living wage as provided by chapter 2, article 6, division 10 of the Bozeman Municipal Code. The recipient agrees to make available for city inspection the recipient's payroll records relating to employees providing services under this loan [or grant]. If any payroll records of recipient contain any false, misleading or fraudulent information, or if the recipient fails to comply with any of the provisions of Bozeman Municipal Code chapter 2, article 6, division 10, the city may withhold payments on the agreement, terminate, cancel or suspend the agreement in whole, or in part." C. Failure to pay employees in accordance with this division will constitute a breach of the agreement described in subsection B of this section and entitles the city to immediate and full repayment of any financial assistance provided to the recipient of financial assistance or other remedies acceptable to the city. D. Every recipient of financial assistance shall post a notice of the current living wage posted at the site of the work in a permanent place where it can be easily seen and read by the persons employed. The notice shall also provide information of the means the reader may use to file a complaint of violation. In addition, copies of the current living wage requirement shall be supplied to any person employed at the request of such person and within a reasonable period of time after the request. E. An employee may file a complaint alleging a recipient's violation of this section. All complaints shall be filed with the director of administrative services for the city. The director of administrative services shall investigate the complaint and present the director's findings to the city commission. F. At the time of application, recipients receiving financial assistance from the city will be advised that they can apply for a variance in accordance with section 2.06.1930. PROOFS Page 144 of 977 (Ord. No. 1554, § 1(2.96.050), 12-19-2001) Sec. 2.06.1900. Collective bargaining exemption. Except for recipients covered under section 2.06.1880, all the provisions of this division, or any part hereof, may be waived in a bona fide collective bargaining agreement, but only if the waiver is expressly set forth in such an agreement in clear and unambiguous terms. (Ord. No. 1554, § 1(2.96.060), 12-19-2001) Sec. 2.06.1910. Cuts and non-wage benefits prohibited. No recipient of financial assistance will fund wage increases required by this division, or otherwise respond to the provisions of this division, by reducing the health benefits, insurance, pension, vacation or other non-wage benefits of any its employees. (Ord. No. 1554, § 1(2.96.070), 12-19-2001) Sec. 2.06.1920. Non-impairment of existing contracts. Nothing contained herein shall operate to impair any existing contracts, except that the renewal, amendment or modification of such contracts occurring on or after the effective date of the ordinance from which this division is derived shall be subject to this division. (Ord. No. 1554, § 1(2.96.080), 12-19-2001) Sec. 2.06.1930. Variance. A. The city commission, in its sole discretion, may grant a variance from this division if: 1. A recipient of financial assistance submits a plan to comply with this division for 90 percent of employees upon receiving city financial assistance, for 95 percent of employees within one year, and for all employees within two years of receiving financial assistance; or 2. The city commission determines that it would be in the public interest after a hearing that the recipient of financial assistance should be granted a variance or a conditional variance from this division. (Ord. No. 1554, § 1(2.96.090), 12-19-2001) Sec. 2.06.1940. Retaliation and discrimination barred. A recipient of financial assistance from the city shall not discharge, reduce the compensation, or otherwise discriminate against any employee, any employee making a complaint or otherwise asserting the employee's rights under this division, or any employee participating in any investigation or proceedings. (Ord. No. 1554, § 1(2.96.100), 12-19-2001) Sec. 2.06.1950. Biennial review. During the month of July 2004 and then every two years thereafter, the commission shall review this division to determine whether any modifications to this division are necessary or whether this division should be repealed. Failure to review this division does not affect this division nor the requirement to pay a living wage. (Ord. No. 1554, § 1(2.96.110), 12-19-2001) ARTICLE 7. EMINENT DOMAIN Sec. 2.07.010. Extent of power. A. The city shall have the power, known as eminent domain, to condemn and take PROOFS Page 145 of 977 property for all public purposes and city uses and purposes. The extent of the power and authority shall not be limited to the uses described in MCA title 70, chapters 30 and 31 (MCA 70-30-101 et seq., and MCA 70-31-101 et seq.) and Urban Renewal Law, MCA title 7, chapter 15, parts 42 and 43 (MCA 7-15-4201 et seq. and MCA 7-15-4301 et seq.); but shall be limited as follows: 1. Prohibiting eminent domain for economic development. Notwithstanding any other provision of law, neither the city nor any of its subdivisions shall use eminent domain to take private property for economic development without the consent of the owner. 2. Economic development. The term "economic development" means the use of powers of eminent domain to acquire private property for private use in the implementation of an urban renewal project or similar redevelopment plan. 3. Prohibiting transfer of condemned property to private parties. Notwithstanding any other provision of law, private property acquired through eminent domain without the consent of the owner shall not be dedicated, sold, leased in substantial part, or otherwise transferred to a private person, partnership, corporation, or any other entity for a period of ten years following the acquisition of the property by the city, except that property may be transferred or leased: a. To private entities that are public utilities or common carriers such as a railroad or toll road; and b. To private entities that occupy an incidental area in a public project, such as a retail establishment on the ground floor of a public building. (Ord. No. 1552, § 1(11.01.010), 12-3-2001; Ord. No. 1652, § 1, 11-11-2005) Sec. 2.07.020. Initiation of condemnation. The city shall initiate all eminent domain actions by the city commission passing a resolution declaring the public purpose for which the condemnation is being made, which resolution shall describe the property to be taken, and the extent of the interest condemned. The resolution shall authorize the city officials to proceed. (Ord. No. 1552, § 1(11.01.020), 12-3-2001) Sec. 2.07.030. Effect of resolution. The passage of the resolution initiating condemnation and taking of private property for any public use declared in the resolution is conclusive as to the necessity of the taking. (Ord. No. 1552, § 1(11.01.030), 12-3-2001) Sec. 2.07.040. Eminent domain procedure. The eminent domain procedures shall follow the state statutes. (Ord. No. 1552, § 1(11.01.040), 12-3-2001) State law reference—Eminent domain, MCA 70-30-101 et seq. Sec. 2.07.050. State law superseded. MCA 7-5-4106 is hereby superseded and the Urban Renewal Law as set forth in MCA title 7, chapter 15, parts 42 and 43 (MCA 7-15-4201 et seq., MCA 7-15-4301 et seq.), where inconsistent herewith is hereby superseded. It is the intent of this article that the city may take full advantage of the urban renewal law by following the procedures set forth herein and shall not be restricted in the exercise of powers of eminent domain for the purposes described in the urban renewal law by the provisions thereof. (Ord. No. 1552, § 1(11.01.050), 12-3-2001) PROOFS Page 146 of 977 Chapter 3 RESERVED PROOFS Page 147 of 977 Chapter 4 ALCOHOLIC BEVERAGES* *State law reference—Montana Alcoholic Beverage Code, MCA 16-1-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. LICENSING AND PERMITTING SALEBEER66 Sec. 4.02.010. Applicability. A. For the purposes of this article, the definitions, words, phrases and expressions as set forth in this article are to be construed the same as those set forth in the Montana Alcoholic Beverage Code. Wherever the words “Montana Alcoholic Beverage Code” are used in this article, they shall be held and construed to refer to that code. B. All of the prohibitory and regulatory provisions contained in the Montana Alcoholic Beverage Code are adopted as provisions of this article and all licenses issued under the provisions of this article shall be subject to all applicable prohibitory and regulatory provisions of the code in addition to the provisions of this article. (Code 1982, § 5.12.010; Ord. No. 1492, § 1, 1999) Sec. 4.02.020. License; exceptions. A. The sale of alcoholic beverages is permitted only in districts authorized in chapter 38 of this Code to allow such sales. B. The limitations set forth in MCA 16-3-306(1) do not apply to restaurants holding a “restaurant beer and wine license” also known as a “cabaret beer and wine license” nor to those owning a “catering endorsement” as those terms are defined in the Montana Alcoholic Beverage Code. However, nothing in this article shall be construed to allow the business license to be unilaterally approved and all must apply for and receive a conditional use permit as set forth in chapter 38 of this Code. (Code 1982, § 5.12.020; Ord. No. 1492, § 2, 1999) Sec. 4.02.030. City license required; application; license fees. A. No person shall manufacture or sell alcohol in the city, under the provisions of the Montana Alcoholic Beverage Code, or at all, without first procuring a license to do so from the city. Application for a city license shall be made to the city commission on a form to be provided by the director of finance. Separate licenses shall be required for the sale of beer and for the sale of wine. The application will be signed by the applicant, notarized, include the license fee and contain, at a minimum, the following information: 1. Applicant’s name, age, and address; 2. The business’ name and address or, in the case of a transfer or relocation, the address of the proposed new location; 3. The type of alcohol beverage license either applied for or granted by the state, when it was applied for, the date it was granted and expiration date; 4. A short statement of the applicant’s purpose for obtaining the license; 66 The title should be alcoholic beverages. Is this chapter intended to apply to only beer and wine? In places it seems to apply to all alcoholic beverages, but then you have chapter 5.52. Note change. PROOFS Page 148 of 977 5. A short explanation for the applicant’s benefit explaining the city’s authority to revoke or suspend the business license in response to a similar action by the state. B. The application shall be filed with the city clerk of the commission and presented for the consideration of the commission. The commission may, in its discretion, postpone any action for investigation or other good cause. The action of the commission with reference to the application shall be recorded in the meeting’s minutes. C. If the application is rejected, the reasons must be noted in the minute entry, the applicant notified, and the tendered fee returned. D. License fees must be payable in advance and shall accompany the application therefor, whether original or renewal. All licenses under this article will expire at 12:00 midnight of December 31, in the year for which such license is issued. In the event that a license is granted after June 30 of any year, the license fee will be one-half of the entire yearly license. E. If the entire yearly license fee has been paid in advance and the business under the license is discontinued before July 1 in the year in which such license is granted, the director of finance will refund one-half of the yearly license fee upon surrender of the license, make an appropriate book entry, and report to the commission. (Code 1982, § 5.12.030) Sec. 4.02.040. Form of city license. A. Licenses issued under the provisions of this article must be prominently posted in the business and will contain, at a minimum, the following information: 1. The licensee’s name and the business’ name and address; 2. The purpose for the license; 3. The expiration date of the license; and 4. The minute book and page number containing the commission’s approval. B. The director of finance will keep an accurate record of all licenses issued under this article, showing the date issued, the minute book and page where authority for its issuance is found, the date of issuance, to whom issued, the amount collected, the date of expiration, a description of the premises, change of location, or transfer, if any, and minute entry showing authority therefor, and any other pertinent fact with reference to such license, so that the same may be conveniently available. (Code 1982, § 5.12.040; Ord. No. 1492, § 4, 1999) Sec. 4.02.050. Special permits--When granted. A. The city commission, in its discretion and upon application, may grant a special permit to sell beer or wine for consumption on the premises to the following: 1. Any association or corporation conducting a picnic, convention, fair, civic or community enterprise or sporting event within the city limits; 2. A nonprofit arts organization, organized and operated for the principal purpose of providing artistic or cultural exhibitions, presentations, or performances for viewing or attendance by the general public, to be served at an exhibition, production, performance or program for on-premises consumption; and 3. Any other organization or for any other reason the city commission, in its discretion, determines should be allowed to serve or sell alcohol during a function. B. The application for a special permit shall be granted only upon the organization acquiring a special permit from the state as provided in the Montana Alcoholic Beverage Code. The PROOFS Page 149 of 977 applicant must specify the location and nature of the event and the period it is scheduled to be held. All applications will be signed by one or more of the association’s officers, will be notarized and will be accompanied by the amount of the permit fee. The permit issued under this section will not authorize the sale of beer or wine for a longer period than one day before the event is scheduled to begin and one day after the event has been concluded. (Code 1982, § 5.12.060; Ord. No. 1492, § 5, 1999) Sec. 4.02.060. Same—Limitations; fees. The city commission will, on an annual basis, set the fee for alcohol licenses as well as special permits by resolution. (Code 1982, § 5.12.060; Ord. No. 1492, § 6, 1999) Sec. 4.02.070. City license not transferable; exceptions. No license issued under the provisions of this article shall be transferable except as provided in the Montana Alcoholic Beverage Code, and then only after such transfer is approved by the city commission after written application for permission to transfer. Such application shall be in writing, and the same form as in the original business license application in accordance with section 4.02.030. (Code 1982, § 5.12.070; Ord. No. 1492, § 7, 1999) Sec. 4.02.080. City license suspension or revocation conditions. The revocation or suspension of any license or permit granted under the provisions of the Montana Alcoholic Beverage Code will also operate as a suspension or revocation, as the case may be, of any license granted under this article. (Code 1982, § 5.12.080; Ord. No. 1492, § 8, 1999) Sec. 4.02.090. City license fees. A. The license fees under this article shall be established by resolution. B. License fees under this article are payable with the application and subject to the half-yearly rate as hereinbefore provided. Fees and fines collected under this article shall be allocated to the “protection of life and property fund” of the city; it being hereby recited that licenses imposed under the provisions of this article are exclusively for the purpose of defraying the cost of necessary police regulation, inspection, and control under the police power of the city, and not for revenue, and that any business licensed under this article requires, and is subject to, the general police regulations of the city for the safety, health, peace, quietness, and good order of the city and the inhabitants thereof. C. All fees provided for in this article are in addition to any and all other license fees required to be paid under any other ordinance of the city. (Code 1982, § 5.12.090; Ord. No. 1722, § 1, 10-15-2007) Sec. 4.02.100. Inspection and control of premises. Any business licensed under this article shall at all times be subject to the police inspection and control of the city. The licensee, and/or employees of such licensee, hereunder, shall at all times permit any member of the city commission, city manager, city attorney, director of finance, health officer, and member of the police force of the city, and they and/or any of them shall have the right to enter the premises where such licensed business is conducted for inspection of such premises and every part thereof, and for exercise of police supervision, inspection and control thereof, including arrests, so long as any business licensed under this article shall be conducted therein or in any part thereof. Denial, restriction or obstruction of such right or permission shall PROOFS Page 150 of 977 be deemed a violation of this article, make any license granted hereunder subject to revocation or suspension forthwith, and subject the offender to the fines and penalties herein provided. (Code 1982, § 5.12.100) 5.12.110. Restrictions on drinking in a public place.67 “Public place” includes any place, building or vehicle to which the public has, or is permitted to have access and any place of public resort. It is unlawful for any person to drink beer in any public place in the city and within the jurisdiction thereof, except where the sale and drinking of beer is licensed and/or permitted under the provisions of this chapter. (Code 1982, § 5.12.110) Sec. 4.02.110. Violation; penalty. Every person, including those employed in or in connection with any business licensed under this article, who is convicted in the police court of the city of any violation of this article shall be subject to a fine of not more than $300.00, or imprisonment in the city or county jail for not less than ten days nor more than six months, or both such fine and imprisonment; and in addition to such fine and imprisonment, or either, if the convicted person is a licensee under this article, or an employee of such licensee engaged in or about, or in connection with, the conduct or operation of the business so licensed, such license may be revoked or suspended, as provided in section 4.02.080. (Code 1982, § 5.12.120) ARTICLE 3. LIQUOR--RETAIL SALE68 Sec. 4.03.010. Definitions. Whenever used in this article, the words and phrases set out in 69the Montana Alcoholic Beverage CodeSection 2 of Chapter 84 of the Laws of the 25th Legislative Assembly of the State of Montana, 1937, codified as RCM Chapter 4--4, shall be given the interpretation and meaning given to such words and phrases in such codeSection 2, and all other words and phrases used in this article shall be given their usual and ordinary meaning according to the common understanding and usage of the English language. (Code 1982, § 5.52.010) Sec. 4.03.020. City licenses--Requirements generally; statutory provisions. A. All licensees of the 70state department of revenueMontana Liquor Control Board licensed to sell liquor at retail in the city shall pay therefore to the city an annual license fee, to be established by resolution. B. The city will make such proportionate refund of any license paid under this article as is made by the state, if any, for a part of the year when such licenses may be ineffective to permit operations under it, up on like license issued by the 25th Legislative Assembly of the State, 1937, under the provisions of which this chapter is adopted.71 67 This section appears to be superseded by Code ch. 9.70. Yes. Delete. 68 I suggest moving this chapter next to chapter 5.12. Yes. 69 Change to Montana Alcoholic Beverage Code throughout this article? Yes. 70 Should this now be the state department of revenue throughout? Yes. 71 Note deletion of old cite. PROOFS Page 151 of 977 (Code 1982, § 5.52.020; Ord. No. 1722, § 2, 10-15-2007) Sec. 4.03.030. Same--Application; form, contents and filing. A. Applications for license under the provisions of this article shall be in writing, signed and sworned to by the applicant before a person authorized to administer oaths, and be substantially in the following form: City of Bozeman, Montana Application for License to Sell Liquor at Retail Under Chapter 4, Article 3 of the Bozeman Code Date____________________ I, ____________________, hereby make application to the city commission of the City of Bozeman for a license to sell liquor at retail in the City of Bozeman at the premises known and described as ____________________ __________, in said City, and I hereby state: That I am the holder of a license from Montana Department of RevenueState Liquor Control Board to sell liquor at retail in the City of Bozeman at the above described premises. That said license is dated ____________________, 2019_____, and is Numbered __________. That said license is in full force and effect and has not been suspended nor revoked. I agree that if the license hereby applied for is granted it: 1. Shall expire with the expiration of the license from Montana Department of RevenueLiquor Control Board in this application above described. 2. Shall be subject to all of the provisions of the Montana Alcoholic Beverage CodeChapter 84 of the Laws of the 25th Legislative Assembly of the State of Montana, all rules and regulations adopted and promulgated by Montana Department of RevenueLiquor Control Board pursuant to the provisions of such codeSection 22 of said Chapter 84, all of the provisions of chapter 4, article 3 of the City of Bozeman Code under which this application is made, and all other applicable ordinances of the City of Bozeman where not in conflict with the provisions of said Montana Alcoholic Beverage CodeChapter 84 and said rules and regulations. 3. Shall stand suspended or revoked upon suspension or revocation of the license from the Montana Department of RevenueLiquor Control Board, hereinabove referred to and described. 4. Shall not be transferable. The fee of $__________ for the license hereby applied for accompanies this application and is tendered herewith. (Signed)____________________ Subscribed and sworn to before me this _____ day of ____________________, 2019_____. ____________________ B. Such application shall be filed with the department of finance clerk of the city commission and be presented by the clerk to the commission at the next available its first regular meeting after such filing. (Code 1982, § 5.52.030) PROOFS Page 152 of 977 Sec. 4.03.040. Same--Form of issuance. Any license issued under the provisions of this article shall be substantially in the following form: CITY OF BOZEMAN, MONTANA Retail Liquor License ____________________ is hereby licensed to sell liquor at retail at the premises known and described as __________, Bozeman, Montana, subject to all of the provisions of the Montana Alcoholic Beverage CodeChapter 84 of the Laws of the 25th Legislative Assembly of the State of Montana, 1937, the rules and regulations adopted and promulgated by Montana Department of RevenueLiquor Control Board pursuant to such codeSection 22 of said Chapter 84, of all of the provisions of chapter 4, article 3 of the city Code, and all other applicable city ordinances where not in conflict with the provisions of the Montana Alcoholic Beverage CodeChapter 84, and said rules and regulations. This license runs concurrently, and expires, with the license issued by Montana Department of RevenueLiquor Control Board to the above named __________ __________, which is dated ____________________, 2019_____, and is numbered ____________________. This license must be posted in a conspicuous place in the premises above described and alongside the license from Montana Department of RevenueLiquor Control Board as above dated and numbered. ____________________________________ Director of Finance, City of Bozeman By__________________________________ Assistant (Code 1982, § 5.52.040) Sec. 4.03.050. Deposit and use of license fees. Fees and fines collected under this article shall be allocated to the "protection of life and property general fund" of the city, it being hereby recited that licenses imposed under the provisions of this article are exclusively for the purpose of defraying the cost of necessary police regulation, inspection and control under the police power of the city, and not for revenue, and that any business licensed under this article requires and is subject to the general police regulations of the city for the safety, health, peace, quietness and good order of the city and the inhabitants thereof. All fees provided for in this article are in addition to any and all other license fees required to be paid under any other city ordinance. (Code 1982, § 5.52.060) Sec. 4.03.060. Violation; penalty. Every person, as defined by the Alcoholic Beverage Code, (as defined by Subsection 6 of Section 2 of Chapter 84 of the Laws of the 25th Legislative Assembly of the State of Montana) who violates any of the provisions of this article, shall, upon conviction thereof in the police court, be fined in a sum not exceeding $300.00 or by imprisonment in the city or county jail for not exceeding 90 days, or by both such fine and imprisonment; and the police magistrate, upon such conviction, shall certify the same forthwith to the city commission who may, in its discretion, forward such certificate to the Montana Department of RevenueLiquor Control Board with a request that the license issued to the offender by such board be suspended or revoked, pursuant to the provisions of Montana Alcoholic Beverage CodeChapter 84 applicable to such case. PROOFS Page 153 of 977 (Code 1982, § 5.52.060) Editor's note—Present liquor control regulations are codified under the Montana Alcoholic Beverage Code at MCA § 16-1-101 et seq. ARTICLE 4. ALCOHOL POLICY Sec. 4.04.010. General provisions and intent. A. The city commission declares that alcohol possession and consumption by minors, high risk drinking behaviors by minors, and the supply and sale of alcohol to minors have negative and detrimental impacts on the community and are, therefore, a nuisance, and constitute conduct calculated to disturb the public peace of the city and threaten the health, safety and welfare of the citizens of Bozeman. B. Significant problems exist when persons possess and consume alcoholic beverages in an irresponsible manner. Such persons create a public safety hazard by their consumption of alcoholic beverages and the subsequent driving of motor vehicles or violent encounters on public property. Therefore, because of the negative and detrimental impacts of such behaviors on the community, the irresponsible consumption and possession of alcoholic beverages which disturb the public peace of the city are declared a nuisance and threaten the health, safety and welfare of the citizens of Bozeman. C. It is the intent of the city commission to address those areas related to alcohol access, consumption and usage which are not otherwise addressed by the current law in the state. Violations such as Endangering Welfare of Children (MCA 45-5-622), Unlawful Transactions with Children (MCA 45-5-623), Unlawful Attempt to Purchase or Possession of Intoxicating Substance (MCA 45-5-624), Driving under the Influence of Alcohol or Drugs or Operation with Alcohol Concentration of .08 or More (MCA 61-8-401 and 61-8-406), and Operation of Vehicle by Person under Twenty-One with Alcohol Concentration of .02 or More (MCA 61-8-410) have all been specifically addressed by state law as noted and will be enforced within the city under those laws. Disorderly Conduct and Public Nuisance (MCA 45-8-101 and 45-8-111) violations shall be addressed by state code. Noise issues shall be addressed through chapter 16, article 6, as applicable. (Ord. No. 1616, § 1(9.70.010), 7-12-2004) Sec. 4.04.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Alcohol" means ethyl alcohol, also called ethanol, or the hydrated oxide of ethyl. 2. "Alcoholic beverage" means a compound produced and sold for human consumption as a drink that contains more than 0.5 percent of alcohol by volume. 3. "Beer" means a malt beverage containing not more than seven percent of alcohol by weight. __ "Director of Public Safety" means the Director or the Director's designee. 4. "Intoxicating substance" means a controlled substance, as defined in title 50, chapter 32, Montana Code Annotated (MCA 50-32-101 et seq.), or its successor provision, and an alcoholic beverage, including but not limited to a beverage containing one- half of one percent or more of alcohol by volume. Intoxicating substance does not include dealcoholized wine or a beverage or liquid produced by the process by which beer, ale, port, or wine is produced if it contains less than one-half of one percent of PROOFS Page 154 of 977 alcohol by volume. 5. "Knowingly." A person acts knowingly with respect to conduct or to a circumstance described by a statue defining an offense when the person is aware of the person's own conduct or that the circumstance exists; a person acts knowingly with respect to the result of conduct when the person is aware that it is highly probable that the result will be caused by the person's conduct. When knowledge of the existence of a particular facts is an element of an offense, knowledge is established if a person is aware of a high probability of its existence. 6. "Liquor" means an alcoholic beverage except beer and table wine. 7. "Negligently." A person acts negligently with respect to a result or to a circumstance described by a statue defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. The term "gross deviation" means a deviation that is considerably greater than lack of ordinary care. 8. "Possession" means the knowing control of anything for a sufficient time to be able to terminate control. 9. "Public places" means all streets, avenues, alleys and parks in the city, all municipal and public buildings, and places to which the public or a substantial group has access, but does not include premises licensed for the sale of alcoholic beverages at retail by the state department of revenue, or the city. The term "public place" does not include a private residence and its contiguous real property (front or rear yard) or a private hotel or motel room so long as the possession and consumption is in compliance with the Montana Alcoholic Beverage Code, title 45 of the Montana Code Annotated (MCA 45-1-101 et seq.) and this article; but does include the commonly shared areas such as common hallways of a building or apartment complex, and areas of city rights-of-way, including sidewalks and streets. 10. "Public display or exhibition of open alcoholic beverages" means and includes the carrying and exhibiting of open cans or bottles of any alcoholic beverage or the carrying and exhibiting of glasses, cups, or other types of containers for alcoholic beverages, to, in, on or within any public place within the city, even though empty, but does not include carrying or transporting such alcoholic beverages from retail liquor or beer establishments in sacks, cases, boxes, cartons or similar containers with unbroken seals or when no display or exhibition is made and does not include carrying or exhibiting any empty or discarded bottle, can or other container solely for the purpose of disposal in a proper waste receptacle. 11. "Public drinking" includes the consumption or possession for the purpose of consumption of open alcoholic beverages in or on any public place in the city. 12. "Purposely." A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person's conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. (Ord. No. 1616, § 1(9.70.015), 7-12-2004) PROOFS Page 155 of 977 Sec. 4.04.030. Public drinking or display of open alcoholic beverages; open containers; prohibited. Public drinking or display or exhibition of open alcoholic beverages (open container) as defined in section 4.04.020 is prohibited, and it is unlawful for any person to engage in public drinking, public display or exhibition of open alcoholic beverages (open container) within the city limits. (Ord. No. 1616, § 1(9.70.020), 7-12-2004) Sec. 4.04.040. Exemptions to section 4.04.030. This provision shall not apply to a governmental agency for authorized activities conducted upon the agency's premises. (Ord. No. 1616, § 1(9.70.030), 7-12-2004) Sec. 4.04.050. Exceptions to section 4.04.030.72 A. The director of parks and recreationPublic Safety may grant a waiver to the provisions of section 4.04.030 for the purpose of holding picnics, parties, reunions, barbecues or other public assemblies in public parks, provided the number of adults does not exceed 75. Larger groups shall seek a waiver from the city manager under subsection B of this section. 1. Applications which are for events only in a public park, and do not involve more than 75 adults may be submitted without the public assembly permit application. All public park reservations are separate from the waiver process and a reservation for a park area does not guarantee the issuance of a waiver under this section. 2. An application shall designate either the applicant, or one or more members of the group submitting the application, as the contact person for the event. The contact person shall be present at all times during the event, or shall arrange for an alternate contact person. The contact person shall be in charge of the event and be responsible for those attending the event. B. The city manager may grant a waiver to the provisions of section 4.04.030 for activities occurring in or on a public place other than a park or where the number of participating adults exceeds 75. 1. All applications for a waiver under this subsection B shall be made in conjunction with an application for a public assembly permit in conformance with the procedures in sections 34.08.040 through 34.08.080 or its successor provisions, which are incorporated herein by reference, subject to any specific changes as contained in this section. The form for such application shall be provided by the city and shall be signed by the applicant. 2. An application must be filed in a timely manner prior to the event. Timely, in this instance, is a minimum of 14 days under this subsection B. The application may not be filed more than 180 days before the event. The minimum period may be waived after due consideration of the factors specified under subsection G of this section. 3. Applications submitted under this subsection B shall have proof of insurance in an amount acceptable to the city; and which includes the city as an additional insured. 4. For applications under this subsection B, a safety plan for the event shall be submitted with the application, to be reviewed by the director73 of public safety or a 72 Note changes in this section requested by city staff. 73 Is this the correct title? Should it be changed to director of parks and recreation? Change to "chief of police" per city instructions. PROOFS Page 156 of 977 designee chief of police. The safety plan shall address admission of those who are under the legal age to drink, consequences when those under the legal age are caught drinking, the policy for service of those who are intoxicated or under the influence of alcohol, prohibiting those who are intoxicated or who appear to be impaired or under the influence from operating a motor vehicle by providing safe transportation alternatives, actions to be taken in the event of a disturbance or medical or other emergency, and other measures designed to maintain a safe environment for those in attendance. 5. For applications submitted under this subsection B, there shall appear in the application arrangements for providing responsible beverage service for any group of 50 or more adults. Responsible beverage service requires that all beverage servers receive specific training through a recognized program approved by the city prior to the event. A beverage server under this section does not consume any alcoholic beverage during the event. 6. The application shall designate either the applicant, or one or more members of the group submitting the application, as the contact person for the event. The contact person shall be present at all times during the event, and shall not consume any alcoholic beverages during the event, and shall be in charge of and responsible for all beverage servers and patrons. C. In seeking a waiver to section 4.04.030, the group leader or authorized representative shall file with the director of parks and recreationPublic Safety, or city manager, as applicable, an application for a city alcoholic beverage waiver. 1. All application for a waiver shall be submitted to the city manager's office after payment of the appropriate fee to the department of finance. This fee shall be set by resolution of the city commission. This fee is a nonrefundable fee to cover administrative costs of processing the waiver. Payment of the fee does not entitle the applicant to a waiver. 2. If the application is for the use of any city equipment or if any city services shall be required, the applicant shall pay, prior to the issuance of a waiver, the charges for those services in accordance with a schedule of service costs approved by the city commission by resolution. 3. If the event is to be held on a regular or recurring basis at the same location, an application for a waiver for the calendar year or any portion thereof may be filed at least 60 days and not more than 180 days before the date and time of the first event proposed. The city manager or director of parks and recreation director of public safety,74 as appropriate, may waive the minimum period after due considerations of the factors under subsection G of this section. 4. An application not acted upon within ten calendar days of submission, or by the day of the event, shall be deemed denied. D. Prior to the issuance of the waiver an investigation shall be made into the suitability and compatibility of the proposed function with other activities and the surrounding area. In making the investigation the director of parks and recreationPublic Safety or the city manager shall consider the criteria listed in subsections D.1 through 5 of this section in addition to those considerations under sections 34.08.040 through 34.08.080. The director of parks and recreationPublic Safety or the city manager may issue a waiver subject to consideration of the 74 Is this the correct title? PROOFS Page 157 of 977 relevant criteria and imposition of any conditions deemed necessary and reasonable, and may, in his the director of parks and recreation or city manager's discretion, deny the waiver based upon the consideration of the relevant criteria, the application, and any other information as may be otherwise obtained. 1. The type of activity, the hours involved, and the impact it may have on the safe and orderly movement of pedestrian or vehicular traffic and any significant negative impact on individuals living in the vicinity of the activity. 2. The potential for the activity which is the subject of the application to conflict or interfere with any other scheduled or permitted use of the area, including the use of a public address system or amplification system. 3. Any previous history with the requesting party or organization, including but not limited to past abuses of any privileges granted under this article or any similar provision, past successful requests, and any other information which may be deemed pertinent to an evaluation of the proposed event. 4. The impact of the activity on the resources of the city, including but not limited to the need for additional policing, road service, clean-up crews, and other services. 5. The need for and availability of any additional liability insurance over and above the standards required by the city. E. The director of parks and recreationPublic Safety or city manager shall make an investigation, which shall include input from appropriate city staff and may include any individuals who may be directly affected. 1. The granting of a waiver in no way abrogates the responsibility and liability of the applicants, which includes but is not limited to cleaning up the area and having a responsible contact person who, for events under subsection B of this section, does not consume alcoholic beverages before, during or after the event. 2. Any police officer shall have full authority to void a waiver for violation of park or other rules and regulations, any term or condition of the waiver as issued, or any ordinances or state law, committed by any member of the group, which may include voiding of waivers for subsequent days. Such action shall be immediately reported to the director of parks and recreationPublic Safety or the city manager for action in conformance with this article; and 3. Public address systems and amplified music may be permitted, and may be subject to the provisions of chapter 16, article 6, if so noted on the waiver. 4. The city may include additional conditions as a part of the waiver. The city will notify the applicant of such conditions. F. The director of parks and recreationPublic Safety or the city manager shall uniformly consider each application upon its merits and shall not discriminate in granting or denying waivers under this article based upon political, religious, ethnic, color, race, creed, national origin, disability or age, marital status, gender, or actual or perceived sexual orientation, gender identity or disability related grounds. G. Any application submitted in a less than timely manner as designated in this section may be denied as untimely without further review, unless a waiver of the minimum filing period is granted after due consideration of the date, time, place, and nature of the event, and a determination that the impact on city services and public safety will not be adversely impacted by granting such a waiver. An approved application shall be given to the applicant by personal delivery or by mail. If no action has been taken within ten calendar days of submission or by the PROOFS Page 158 of 977 date of the event, the application has been deemed denied. H. Upon granting the waiver, a copy of the waiver shall be routed in accordance with section 34.08.130, and to other individuals as may be appropriate in the discretion of the director of parks and recreationPublic Safety or the city manager. I. In the event the city denies the waiver request, the city may authorize the activity at a different time, date, or location and issue an alternate waiver to the applicant. (See section 34.08.110.) A denial by the director of parks and recreationPublic Safety may be submitted to the city manager for reconsideration within four business days of the denial. If the city manager does not act on the request within ten calendar days it will be deemed denied. J. In the event the waiver is denied by the city manager, the applicant may appeal the decision to the city commission by submitting the completed application, as it existed at the time of the decision by the city manager, to the clerk of the commission together with a letter explaining why the applicant believes the decision should be overturned. The appeal materials must be received within seven calendar days of the decision by the city manager. Appeals received after that time will be returned as untimely. The clerk of the commission shall, upon receipt of a timely appeal, schedule the public hearing, providing for appropriate notice according to the applicable rules of the city commission. To reverse the decision of the city manager, the concurring vote of a majority of the commission shall be needed to approve the application or approve the application with additional conditions. The decision of the city commission shall be final. (Ord. No. 1616, § 1(9.70.040), 7-12-2004) 9.70.050. Possession of open alcoholic beverages (open container) in motor vehicles prohibited.75 __ No person shall possess an open alcoholic beverage (open container) in the passenger area of or on any motor vehicle when such vehicle is upon a public highway or street or in an area used principally for public parking. __ No person shall be in possession of, while in or on a motor vehicle upon a public highway or street, or in an area used principally for public parking, any bottle, container or receptacle containing such alcoholic beverage (open container) which has been opened, or the seal broken, or the contents of which have been or may be partially removed. __ It is unlawful for the owner or occupant of any motor vehicle to keep or allow to be kept in a motor vehicle when such vehicle is upon the public highway or street, or in an area used principally for public parking, any bottle or receptacle containing such alcoholic beverages (open container) which has been opened, or the seal broken, or the contents of which have been or may be partially removed, except when such bottle or receptacle is kept in the trunk, or some other area of the vehicle not normally occupied by the driver or passengers. A utility compartment or glove compartment shall be deemed to be within the area occupied by the driver and passengers. (Ord. No. 1616, § 1(9.70.050), 7-12-2004) Sec. 4.04.060. Revocation of waiver. The city manager shall have the authority to revoke a waiver instantly upon a violation of the conditions or standards for issuance as set forth in this article or when a public emergency arises. The revocation of a waiver due to an emergency shall not automatically operate to revoke all waivers under a recurring event waiver. The revocation of a waiver upon violation of the conditions or standards of the waiver shall automatically operate to revoke the entire waiver for a 75 Deleted at request of city staff. PROOFS Page 159 of 977 recurring event. A new application may be submitted in the event of a revocation of a recurring event waiver. (Ord. No. 1616, § 1(9.70.060), 7-12-2004) Sec. 4.04.070. Violation; penalty76. A. It is a misdemeanor for any person to violate any of the provisions of this article. B. Anyone found guilty of the offense of having an open container under section 4.04.030 shall be fined an amount not less than $100.00 and not to exceed $500.00 or be imprisoned in the county jail for a term not to exceed six months, or both. The first $100.00 of a fine under this section may not be suspended. __ Anyone found guilty of the offense of having an open container in a motor vehicle under section 9.70.050 shall be fined an amount not less than $100 and not to exceed $500 or be imprisoned in the County jail for a term not to exceed 6 months, or both. The first $100 of a fine under this section may not be suspended.77 C. Upon conviction, the court may, in its discretion, order the payment of the costs of prosecution or imprisonment, or both, as part of the sentence. (Ord. No. 1616, § 1(9.70.070), 7-12-2004) 76 Use the general penalty instead? No. 77 Deleted at request of city staff. PROOFS Page 160 of 977 Chapter 5 RESERVED PROOFS Page 161 of 977 Chapter 6 AMUSEMENTS AND ENTERTAINMENTS ARTICLE 1. IN GENERAL Sec. 6.01.010. Hours of operation of authorized live card games. Pursuant to MCA 23-5-307, the hours during which live card games authorized by the state may be played within the jurisdictional limits of the city, include the hours between 2:00 a.m. and 8:00 a.m., thereby extending the playing time beyond the 2:00 a.m. to 8:00 a.m. closing times established by state law. (Code 1982, § 5.56.010; Ord. No. 1283, § 1, 1989) ARTICLE 2. PUBLIC CONCERTS Sec. 6.02.010. Band concerts provided by city. The city shall provide public band concerts for the entertainment of the people of the city, and pay therefor out of any moneys which may be in the fund created by section 6.02.030. Such concerts shall be given at such place or places and at such time or times as may be designated by the commission, or as may be designated by the mayor with the consent of the commission, provided that such concerts shall not be given more than twice each week, and provided further that no band shall be employed to give such concerts except a band having its headquarters in Bozeman. (Code 1982, § 12.28.030) Sec. 6.02.020. Contract with band authorized. The commission may from time to time enter into a contract with any band having its headquarters in the city, through its proper officers or managing head, to furnish during any year or part of a year, a certain number of concert entertainments at a price to be agreed upon for the whole number of concerts, or for concerts at an agreed price of so much each. (Code 1982, § 12.28.040) Sec. 6.02.030. Levy for band concert fund. It shall be the duty of the city commission to levy upon all the taxable property within the city a tax not exceeding one mill on the dollar in each year, on the assessed value of the taxable property of the city, to be collected the same as other taxes and paid into a fund to be known as the "band concert fund" of the city, for the purpose of providing band concerts. The same shall be expended by warrants properly drawn on the fund in payment for the public band concerts for the entertainment of the people of the city. (Code 1982, § 12.28.050) PROOFS Page 162 of 977 Chapter 7 RESERVED PROOFS Page 163 of 977 Chapter 8 ANIMALS* *State law reference—Domestic animal control and protection, MCA 7-23-101 et seq.; livestock, MCA 81-1- 101 et seq.; fish and wildlife, MCA 87-1-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. ANIMAL CONTROL* *State law reference—Domestic animal control and protection, MCA 7-23-101 et seq. Sec. 8.02.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Animal" means any live creature, both domestic and wild, except humans. The term "animal" includes fowl, fish, and reptiles. 2. "Animal control officer" means all peace officers as that term is defined in state law as well as all duly appointed animal control officers, animal control supervisors appointed by the city to carry out and enforce this article, or other officials designated by the chief of police director78 of public safety, or their designee. 3. "Animal shelter" means any premises provided by, or contracted via, the city and maintained by the animal shelter director, or their designee for impounding and caring for dogs and other animals, or any facility which contracts with the city to provide such services. 4. "Animal shelter director" means the operator of the city animal shelter or any operator of a facility contracting with the city to provide the services of an animal shelter. 5. "At large" means that an animal is off the premises of the owner, keeper, or responsible custodian of the animal and not on a leash or confined within a kennel, cage, or motor vehicle, or otherwise under the immediate control of a person physically capable of restraining the animal. 6. "Cruelty" means any act or omission whereby unjustifiable physical pain, suffering, or death of an animal is caused or permitted. 7. "Dangerous" or "vicious" animal means any animal that attacks, bites, or injures human beings, domestic animals, or livestock without adequate provocation, or which, because of its nature, temperament, training, or other characteristics, would constitute an unreasonable danger to human life or property if not kept, maintained, or confined in a safe and secure manner. Any animal that, without provocation, has aggressively bitten or caused any physical injury to any person shall be prima facie presumed vicious or dangerous. __ "Department" means the Police Department of the City of Bozeman, Montana. 78 Is this the correct title? Should it be changed to director of parks and recreation? Change to "chief of police" per city instructions. Please note: there are numerous occurrences of "director of public safety" throughout this chapter. Change all? Per city, all references in 8.02.050 to "director of public safety" should be amended to "chief of police". PROOFS Page 164 of 977 8. "Exotic animal" means any wild or other animal which is not tame by nature and includes, but is not limited to, raccoon, fox, skunk, beaver, otter, wolf, wolf hybrid, bear, raptor, alligator, crocodile, poisonous snake, monkey, swine, member of the feline species other than domestic cat (felis domesticus), member of the canine species other than domestic dog (canis familiaris), or any other animal that would require a standard of care and control greater than that required for customary household pets sold by pet shops or domestic farm animals. The term "exotic animal" does not include farm animals, rodents, domesticated ferret, and captive-bred species of fish and common cage birds. 9. "Kennel" means any premises wherein any person engages in the business of boarding, breeding, buying, letting for hire, training for a fee, or selling dogs, cats, or other animals (excluding licensed pet shops). The term "kennel" shall also include any noncommercial establishment or place where more than two 79dogs or two cats are kept over the age of six months, whether for breeding or otherwise. 10. "Leash" means a line, chain or lead used to control or restrain an animal and does not include an electronic leash or shock collar. 11. "Municipal infraction" means a civil offense punishable by a civil penalty as listed in this article of not more than $300.00 for each violation. 12. "Muzzle" means a humane device, securely fastened over the mouth of an animal, which prevents the animal from biting. 13. "Nuisance" means any animal that unreasonably annoys humans, endangers the life or health of persons or other animals, or substantially interferes with the rights of citizens, other than their owners, to enjoyment of life or property. The term "nuisance" shall include, but not be limited to: a. Any animal that is repeatedly (more than two separate occurrences) found running at large; b. Any dog in any section of a park or public recreation area which is not controlled by a leash or similar physical restraint, except in such parks or public areas designated exempt pursuant to section 8.02.080.G; c. Any animal that damages, soils, defiles, or defecates on any property other than that of its owner, with the exception of service animals authorized under the Americans with Disabilities Act; 80 d. Any animal that makes disturbing noises including, but not limited to, continued and repeated howling, barking, whining, crowing or other utterances causing unreasonable annoyance or discomfort to neighbors or others in close proximity to the premises where the animal is kept or harbored; e. Any animal in heat that is not confined so as to prevent attraction or contact with other animals; f. Any animal, whether or not on the property of its owner, that without 79 I suggest adding an age requirement to allow for the occasional litter. See Code § 6.04.050. Add six months. 80 What if the animal owner uses a pooper scooper? See Code § 6.04.160. Note change. PROOFS Page 165 of 977 provocation, molests, attacks, or otherwise interferes with the freedom of movement of persons in a public right-of-way; g. Any animal that chases motor vehicles in a public right-of-way; h. Any animal that attacks domestic animals; i. Any animal that causes unsanitary conditions in enclosures or surroundings where the animal is kept or harbored; j. Any animal that is offensive or dangerous to the public health, safety, or welfare by virtue of the number of animals maintained at a single residence or the inadequacy of the facilities. 14. "Owner" means any person, group of persons, or corporation having temporary or permanent custody of, sheltering or having charge of, harboring, exercising control over, or having property rights to, any animal covered by this article. 15. "Under restraint" means that an animal is secured by a leash not to exceed six feet in length or securely enclosed within the real property limits of the owner's premises. (Code 1982, § 6.04.010; Ord. No. 1085, § 1, 1981; Ord. No. 1446, § 1, 1997; Ord. No. 1463, § 1, 1998; Ord. No. 1764, § 2, 8-24-2009) Sec. 8.02.020. Dog and cat licenses--Requirements generally; fee; expiration. A. Every person, other than owners or keepers of commercial kennels, owning, keeping, or harboring any dog over six months of age within the corporate limits of Bozeman shall cause such dog to be registered, numbered, and licensed annually with the city department of finance and shall pay for such license an amount as set by resolution81 of the city commission. Any owner claiming that his the owner's dog has been spayed or neutered must show to the satisfaction of the licensing authority that such operation has been performed. No license shall be issued without proof of vaccination against rabies disease. First-time licenses issued after July 1 shall be prorated on a semiannual basis. All licenses shall expire on December 31 of the year of issuance. A late licensing fee will be assessed upon all renewal licenses issued after February 15 of the current license year pursuant to the fee schedule. B. Every person owning, keeping, or harboring any cat over six months of age within the corporate limits shall cause such cat to be registered and numbered annually with the department of finance and shall pay for such registration an amount as set by resolution of the city commission. Any owner claiming that his the owner's cat has been spayed or neutered must show to the satisfaction of the licensing authority that such operation has been performed. No license of any type shall be issued without proof of vaccination against rabies disease. First time registrations issued after July 1 shall be prorated on a semi-annual basis. All registrations shall expire on December 31 of the year of issuance. A late registration fee will be assessed upon all renewal registrations issued after February 15 of the current calendar year pursuant to the fee schedule. (Code 1982, § 6.04.020; Ord. No. 1085, § 2, 1981; Ord. No. 1272, § 1, 1988; Ord. No. 1446, § 2, 1997; Ord. No. 1764, § 2, 8-24-2009) 81 Do you want all fees, charges, deposits, bond and insurance amounts to be adopted by resolution? Yes, but keep all dollar amounts that are presently in the Code. PROOFS Page 166 of 977 Sec. 8.02.030. Same--Exemptions from article applicability. The licensing requirements of this article shall not apply to any dog or cat belonging to a nonresident of the city and kept within the city for not longer than 15 days, provided all such dogs or cats of nonresidents shall at the time of entry into the city be properly vaccinated against rabies and, while kept within the city, meet all other requirements of this article. Any owner claiming any of these exemptions has the burden of proving to the satisfaction of the licensing authority that the dog or cat in question is entitled to such exemption. (Code 1982, § 6.04.030; Ord. No. 1085, § 4, 1981; Ord. No. 1446, § 3, 1997; Ord. No. 1764, § 2, 8-24-2009) Sec. 8.02.040. Licenses; issuance and registration conditions; tag requirements. On payment to the city of the amount of the license fee, the licensing authority shall issue a license to the person applying for the same, provided that all other requirements have been met, and shall provide and furnish with each license a durable tag upon which shall be stamped or engraved the registration number of the dog or cat and the year registered. The city shall keep suitable records in which shall be recorded the date and number of such license and the name and address of the person to whom issued. Whenever the dog or cat is allowed in a public place, every owner of a dog or cat within the city shall place and keep around the neck of each dog or cat owned a collar or harness to which shall be securely fastened the license tag issued by the city and to which shall also be attached a tag showing that the dog or cat has been vaccinated for rabies. In the event that a dog or cat tag is lost or destroyed, a duplicate shall be issued for the current year, upon the payment of a fee for such duplicate pursuant to the fee schedule. No person shall use, for any dog or cat, a license receipt or license tag issued for another dog or cat. It shall be unlawful for any person to remove from the neck of any dog or cat the license tag issued pursuant to this section without the dog or cat owner's permission or alter such tag in any manner. (Code 1982, § 6.04.040; Ord. No. 1085, § 3, 1981; Ord. No. 1446, § 4, 1997; Ord. No. 1764, § 3, 8-24-2009) Sec. 8.02.050. Kennel licensing requirements; limit on number of cats and dogs kept. A. It is unlawful for any person, group of persons in the same dwelling, or family, to keep, harbor, maintain or knowingly permit within the city more than two each of cats or dogs, over six months of age82, without first having obtained a kennel license from the city as herein provided. This section shall not apply to licensed veterinarian hospitals or animal shelters, but it is intended to apply to keeping or maintaining kennels where cats and dogs are kept for breeding, sale, sporting purposes, boarding, or for the enjoyment of the household. Any person keeping or maintaining a kennel shall make application to the city for said kennel license, or the revocation thereof, shall be authorized or denied at the discretion of the chief of police director of public safety, or their designee. B. Kennel licensing procedure. 1. All applications for a kennel license, including applications for renewal or reinstatement, shall be reviewed by the chief of police director of public safety, or their designee, who shall investigate the premises of the proposed kennel and make findings, as set forth herein, regarding said application. 2. All kennel licenses shall be for a designated purpose, and a specific number and type of cats and dogs. Licenses shall not be transferable from one person to another person or place. 3. New kennel licenses shall only be issued after the chief of police director of public 82 The definition of “kennel” above does not have the age requirement. It does now. PROOFS Page 167 of 977 safety, or a designee, after appropriate inspection of the applicant's proposed kennel and other appropriate investigation, approves the application. In addition, written notice of a pending kennel license application shall be provided by the applicant to all owners of real property within 200 feet of the site in question, including the property owner if the site in question is not owned by the applicant, within 15 days of the application date and prior to final application approval by the chief of police director of public safety, or their designee. The notices, on forms provided by the city, shall specify the name and address of the applicant, the name and address of the owner of record of the property, a brief statement of the nature of the kennel license application, including the number and type of cats or dogs proposed in the application and reference to the procedures described herein. Additionally, the applicant shall provide notice to the city liaison (staff liaison to the InterNeighborhood Council and neighborhood associations). Applicant's failure to properly complete and deliver all notice forms may constitute cause to deny the application or revoke the kennel license. 4. The chief of police director of public safety, or their designee, for approving a kennel license, shall find: a. That all animals listed on the kennel license application possess current city pet licenses; b. That the site for the proposed use is adequate in size and topography to accommodate such use, and all yards, spaces, fences and enclosures are adequate to properly relate such use with the land and uses in the vicinity; c. That the proposed use will have no adverse affect on abutting properties or residents within the affected area; and d. That any conditions stated in the approval are deemed necessary and shall apply and be followed by the applicant and the property owner as a condition of approval. 5. Upon granting a kennel license, the chief of police director of public safety, or their designee, may thereafter inspect the premises to ensure compliance with this article and ensure the health and welfare of the animals. 6. A kennel license holder shall notify the chief of police director of public safety, or their designee, of any change in the operations which may affect the license and shall keep the chief of police director of public safety, or a designee, apprised of any change in name, use, or location of-said kennel, including, but not limited to, changes in animals and numbers of either cats or dogs listed on the original kennel license application. C. The kennel license fee shall be in an amount as set by resolution of the city commission, and the license shall expire on December 31 of each year, unless sooner revoked. License fees shall be reduced by 50 percent if application is made, and subsequently approved, between July 1 and December 31. The kennel license application fee is nonrefundable. D. Upon complaint being made to the chief of police director of public safety, or a designee, that a licensed kennel is being operated in an improper manner, after finding the kennel was operated improperly, as a nuisance, or a condition existed that would preclude the issuance of a license, the chief of police director of public safety, or a designee, may revoke the license of such kennel, after a minimum of 72 hours' notice to the licensee. The licensee may, at the discretion of the chief of police director of public safety, or a designee, be provided up to 15 days to mitigate an offending condition and thus have the license reinstated. Reinstatement findings by the chief of PROOFS Page 168 of 977 police director of public safety, or a designee, shall be made only after conduction of a subsequent site inspection and report stating that each offending condition of the kennel in question was satisfactorily corrected and the kennel complies with conditions set forth in this article. E. Upon annual re-application for a kennel license renewal, an inspection of the premises, in accordance with subsection B of this section, may be waived unless conditions listed in subsection D of this section are found to exist. F. Kennel license application and revocation appeals. Decisions by the chief of police director of public safety, or their designee, to deny or approve a kennel license application, revoke an existing kennel license or reinstate a revoked kennel license may be appealed to the city commission. A written request for an appeal hearing before the city commission shall be submitted to the chief of police director of public safety, or a designee. Any appeal of a kennel license application approval or denial, or appeal of an existing kennel license revocation or reinstatement decision by the chief of police director of public safety, or a designee, shall be in writing wherein the appellant shall set forth the specific provisions of the decision being appealed. Written notice of an appeal of a kennel license application approval or denial or existing kennel license revocation or reinstatement, including specific provisions of the decision being appealed and the date, time and location of the subsequent city commission appeal hearing, shall be provided by the applicant, to all owners of real property within 200 feet of the site in question, including the property owner if the site in question is not owned by the applicant, within 15 days past the appeal submittal date and at least 15 days prior to the scheduled hearing. Additionally, the applicant shall provide notice of appeal to the city liaison (staff liaison to the InterNeighborhood Council and neighborhood associations). Applicant's failure to properly complete and deliver all appeal notice forms may constitute cause to deny the appeal. Upon review of an appeal, the city commission shall have the authority to affirm, modify, or reverse the findings of the chief of police director of public safety, or their designee. Commission affirmation, modification or reversal of a decision made by the chief of police director of public safety, or a designee, shall be final and binding. (Code 1982, § 6.04.060; Ord. No. 1085, § 5, 1981; Ord. No. 1446, § 5, 1997; Ord. No. 1754, § 1, 1-26-2009; Ord. No. 1764, § 4, 8-24-2009) Sec. 8.02.060. Keeping of exotic or wild animals. A. It is unlawful for anyone to own, harbor, keep, or permit at large any exotic animal without the written permission of the city commission. Such permission shall be given only if it is demonstrated to the satisfaction of the commission that the animal will not constitute a threat to public health or safety. B. Any person that owns, keeps, or harbors an exotic animal shall make application to the city commission for a special license in the manner provided in section 8.02.05083 and said license shall only be issued according to procedures and criteria specified therein. Such applicant must provide notice of intent to maintain an exotic or wild animal to all neighbors and include specific information about the nature of the animal. C. The commission shall, in addition to all other conditions, impose appropriate requirements for proposed enclosures to house or transport the animal. The housing enclosure must be constructed according to applicable zoning codes and must have the proper permits. Each housing enclosure where an exotic or wild animal is to be kept must be periodically inspected by the animal control officer and the health board or comparable designee. Each housing enclosure must provide an adequate exercise area and sleeping quarters. Proper temperature control and 83 There did not appear to be a section 6.04.050 in the ordinance. What section should be referred to here? Per city, cite to section 8.02.050. PROOFS Page 169 of 977 ventilation for the particular species must be provided in both areas. Each housing enclosure must be kept locked and designed so that no one can enter or place appendages in the enclosure. Each housing enclosure must be constructed so as to prevent the animal from escaping. Each housing enclosure must be kept in good repair to prevent both escape and injury to the wild animal. Each housing enclosure must have a water container which is secured so as to prevent its being overturned. Each housing enclosure must be disinfected daily. Surfaces must be of an impervious material to allow for disinfecting. D. Exemptions. The standards set out in this section for keeping exotic or wild animals do not apply to: 1. Any zoological garden accredited by the American Association of Zoological Parks and Aquariums; 2. Appropriately licensed theatrical exhibits or circuses; 3. Federally licensed research institutions; 4. Any government agency or its employees who use the wild animals for an agency related education, propagation, or behavior program; 5. Anyone holding a valid rehabilitation permit from the state department of fish, wildlife and parks, but such exception is granted only for animals which are in rehabilitation and are scheduled to be released to the wild. Nothing herein shall be construed to allow the keeping of any wild animal expressly prohibited by state statute. E. The annual permit fee for keeping each exotic or wild animal shall be set by resolution. A separate wild animal permit is required for each animal kept as defined herein. All permits granted under this article shall be due and payable annually on the first business day of January. All wild animal permits issued under the provisions of this article shall expire on December 31 of each year. If the permit fee provided for in section 6.20.140 84 by resolution of the commission is not paid on or before February 15 of the current calendar year, a $50.00 late registration fee shall be imposed. If application for a renewal permit is submitted after February 15, the application will be considered a new application and subject to all the requirements for a new application. (Code 1982, § 6.04.070; Ord. No. 1085, § 6, 1981; Ord. No. 1446, § 6, 1997; Ord. No. 1764, § 4, 8-24-2009) Sec. 8.02.070. Keeping of chickens (gallus gallus domesticus). A. Keeping of chickens lawful. Subject to the standards in this article, it shall be lawful to keep of up to 15 female domestic chickens (hens) per permit holder. Except as provided in section 8.02.010.A.13.d, chickens kept in accordance with the provisions of this section are not nuisance animals pursuant to section 8.02.120. B. Location and number. 1. Chickens may be kept in the following locations, subject to all other standards in this article: a. On a single-household parcel; b. On a parcel under unitary ownership with more than one dwelling on site; 84 There did not appear to be a section 6.20.140 in the ordinance. What is the correct section to cite? Per city instructions, Replace “in section 6.20.140” with “resolution of the commission.” PROOFS Page 170 of 977 and c. On residential parcels under common ownership. 2. The number of chickens authorized per permit shall comply with the following, subject to all other standards in this article: a. For the first 3,000 square feet of any residential parcel, up to four chickens; b. For each additional 1,000 square feet of any residential parcel, one additional hen up to a maximum of 15; and c. For parcels with multiple households the physical area used for determining the maximum number of allowed hens is exclusive to each permit and may not overlap. This may restrict the number of permits issued on a given parcel. C. Specific standards for chickens. 1. No male chickens (roosters) over the age of three months are permitted. 2. No chickens may run at large within the corporate limits of the city. All chickens must be contained with the permittee's property boundary. 3. The permittee shall provide the chickens with a covered, predator-proof chicken house that is thoroughly ventilated, of sufficient size to admit free movement of the chickens. The chicken house must be adjacent to and provide free access to the chicken enclosure. Any heat source or electrical facilities installed in a chicken house must comply with all adopted building and electrical codes of the city. 4. The permittee shall provide the chickens with a predator-proof enclosure of sufficient size to admit free movement of the chickens. Chicken enclosures may be movable. 5. Chickens shall be secured within the enclosure from sunset to sunrise. 6. Chicken enclosures and houses must be kept in a neat and sanitary condition at all times, and must be cleaned on a regular basis so as to prevent offensive odors. 7. Chickens shall have continuous access to adequate food and water. 8. Stored feed must be kept in a rodent- and predator-proof container. 9. Chickens shall be maintained in a healthy condition. Ill chickens shall either receive appropriate medical care or be culled. 10. No chicken house shall be located closer than 20 feet to any structure inhabited by someone other than the chicken owner, custodian, or keeper, and not closer than five feet to any property line. Chicken houses may be movable but must comply with all standards of this section. 11. No chicken shall be kept in a manner so as to create noxious odors or noise of a loud, persistent and habitual nature. 12. No chickens shall be slaughtered within the public view. D. Permits required/inspections. 1. Prior to the keeping of any chickens, a party seeking to keep chickens shall obtain a permit from the city. A permit fee may be established by resolution of the city commissions and may be revised from time to time. Only one permit shall be issued per household. Issuance of a permit is a discretionary act. 2. The owner of the chickens shall keep a copy of all signed city approval documents for inspection upon request by an animal control officer. PROOFS Page 171 of 977 3. A permit for chickens under this section does not relieve any party from any requirement to obtain any other permit or other necessary approvals for any structure, fence, lighting, heat source, etc. as required by this Code. 4. A party wishing to keep chickens shall submit an application to keep chickens to the city treasurer's office. The application shall contain the following: a. A sketch identifying the property boundaries, the location of all structures on the property and distances between said structures and between the property boundaries. The sketch must also indicate the location of the chicken enclosure and chicken house. b. The name, address, and signed statement of the property owner, if different from the applicant, consenting to the keeping of the applied for number of chickens on the property. c. Whether the number of chickens kept will be between one and six, or between seven and 15. d. A description of the enclosure and chicken house, including materials used and cubic footage. e. A sworn statement that all statements contained in the application are true and that the permit holder shall keep the chickens in compliance with the terms of the permit, application and this section. f. The applicant shall provide each residence adjacent, including those adjacent across a public right-of-way, an acknowledgement of notification and request for hearing form and indicate on said form that the applicant intends to keep chickens in the manner described in the application. The applicant shall submit the signed forms and a listing of all adjacent residents with the application. If a neighbor refuses to sign, the applicant shall so state on the application. For the keeping of seven or more chickens, if two or more adjacent residences request a hearing, the city shall schedule and notice a hearing before the city commission pursuant to subsection E of this section. g. Where the party seeking to keep chickens is not the fee owner of the property upon which chickens will be kept, the applicant shall obtain the property owner's consent in writing to keep chickens on the property. The owner's consent shall be submitted with the permit application or renewal. For the purposes of this section, when a party seeks to keep chickens on a property owned as condominium, the consent of the property owner's association must be obtained. An officer of the association may sign as the landowner. 5. For any party wishing to keep seven or more chickens, up to the maximum number allowed, the party shall have the location inspected by a city animal control officer prior to the keeping of seven or more chickens. The animal control officer shall review the enclosure, chicken house, and all matters related to the keeping of chickens. 6. If, during any inspection, the animal control officer determines changes are to be made to the enclosure, chicken house, or to the number of chickens to be kept, or require mitigation for the impact to adjacent properties, such as fencing or other screening, the applicant/permit holder shall comply with the order of the animal control officer. A person aggrieved by a decision of the animal control officer may appeal to the city manager who shall review all applicable information and issue a decision on the appeal. Appeals from the city manager's decision on an application, PROOFS Page 172 of 977 permit or order of an animal control officer's decision may be made to the city commission. At the time of final approval by animal control, the officer shall indicate final approval on the permit and keep a record of final approval. 7. A permit to keep chickens is specific to the permit holder and the location of the permit. A person wishing to move chickens to a different property shall obtain a new permit. A new resident of a property who intends to keep chickens shall obtain a new permit regardless of whether chickens were kept on the property or continue to be kept on the property. 8. Approval of a permit to keep chickens authorizes the permit holder to keep the number of chickens in the manner described on the application and permit. Any increase to the number of chickens to seven or more up to the maximum number allowed, or a significant change to the manner of keeping said chickens shall require a new permit. 9. Nothing in this section shall prevent an animal control officer from requiring an inspection of a property prior to or after issuance of a permit for any number of chickens including six or less. 10. Changes to the standards contained in this section shall require any permit holder to comply with any new standard, regulation, or condition and no notice to a permit holder is required prior to enforcement of any new standard beyond that required for adoption of a new or revised ordinance. E. Protest and hearing. For the keeping of seven or more chickens, a request by the occupants, owners, or residents of two or more adjacent properties for the city commission to conduct a hearing on the application shall subject the application to a hearing before the city commission. Adjacent properties shall include those properties adjacent by a public right-of-way and include those connected by property corners. If a hearing is held the commission may issue a permit if the commission finds: 1. That the site for the proposed use is adequate in size to accommodate such the keeping of chickens, and all yards, spaces, fences, and enclosures are adequate to properly relate such use with the land and uses in the vicinity; 2. That the proposed use will have minimal adverse impact on adjacent properties or residents; and 3. That any conditions stated in the approval are in addition to those required in this article and are deemed necessary, and shall apply and be followed by the applicant and the property owner as a condition of approval. F. Enforcement. Upon receiving a complaint of a possible violation, the animal control officer will investigate and determine if a violation of this section exists. If the animal control officer determines a violation exists, the officer may serve upon the permit holder or the owner or lessee of the property a written notice of violation and an order to take corrective action, may issue a warning, or may immediately issue a violation notice. The notice of violation may be served by leaving the notice in a conspicuous location at the place of the keeping of the chickens, or in accordance with section 8.02.200. The animal control officer will revisit the owner's address ten days or more after the notice of violation is issued. The provisions of sections 8.02.010, 8.02.130, PROOFS Page 173 of 977 8.02.140, 8.02.150, 6.04.15085, 8.02.170, 8.02.190, and 8.02.200 and article 3 of this chapter shall apply to the keeping of chickens. (Ord. No. 1767, § 2(6.04.070), 9-28-2009) Sec. 8.02.080. Restraint and confinement. A. It is unlawful for the owner of any animal to fail to keep such animal under restraint or to permit such animal to run at large upon the streets and public ways of the city. B. Any dog, while on a street, sidewalk, public way, or in a park or other public space, other than areas as designated pursuant to subsection G of this section, or upon any private property without the consent of the property owner, shall be secured by a leash or chain of sufficient tensile strength to restrain the particular dog, such leash or chain not to exceed six feet in length. However, while actually participating in instructional obedience training, dogs may be temporarily restrained by a leash of greater length. C. No owner or custodian of any animal shall leave such animal unattended while on a street, sidewalk, public way, or in a park or other public space, or fail to exercise proper care and control of such animal to prevent the same from becoming a nuisance. D. Every female dog or cat, while in heat, shall be kept in a secure enclosed shelter or area within the real property limits of the owner's premises in such a manner so as not to come in contact with another animal except for planned breeding. E. Every dangerous or vicious animal shall be confined by its owner, or authorized agent of its owner, within a building or secure enclosure, and, whenever off the premises of its owner, shall be securely muzzled and restrained with a chain having a minimum tensile strength of 300 pounds and not more than three feet in length or caged. Every person harboring a dangerous or vicious animal is charged with an affirmative duty to confine the animal in such a way that no other person has access to such animal. F. Dog-free areas. No dogs are allowed at the following locations: 1. East Gallatin Recreation Area, beach and lake, defined specifically by Certificate of Survey 1221 and filed with the clerk and recorders office located adjacent to Manley road is declared a dog-free area. Dogs are disallowed either on or off restraint. However, dogs are allowed on adjoining trails to the north and east of the recreation area. 2. Bronken Fields, defined as recreational fields and adjoining area southwest of W. Durston Avenue and N. Cottonwood Road. 3. Softball complex, defined as all recreational fields and adjoining areas located southeast of Haggerty Lane and Highland Boulevard. 4. Other prohibited areas within established playgrounds, beaches, ice rinks or on any fields specifically designed for sports recreation to include softball fields, soccer fields or related areas. An exception for dogs on a beach is only allowed if authorized pursuant to Section H of this section. G. Restraint-free areas. Through commission action either prior to, or part of, Ordinance No. 1764, the following areas are exempt from subsections A and B of this section to the extent that in such areas animals may be permitted to run or otherwise remain unrestrained. This 85 Section 6.04.150 did not appear to exist in the ordinance. What is the correct section to cite? The original section cited to was titled ‘”cruelty to animals.” The proper reference here will be to Article 3 of this chapter. (8.03.010 - .050). PROOFS Page 174 of 977 exemption shall not apply to other prohibited areas listed in subsection F of this section or otherwise relieve an owner or custodian of any animal to prevent the same from becoming a nuisance, as defined in section 8.02.010. 1. Burke Park. That area defined specifically by Certificate of Survey 1778 located adjacent to S. Church Avenue and filed with the clerk and Recorder's office, with all areas specifically signed as restraint-free dog park use. 2. Canine Beach at the Bozeman Pond. The fenced and enclosed area, to include the actual beach itself, on the west side of the Bozeman Ponds defined specifically by Certificate of Survey 1883 and located adjacent to Huffine Lane and Fowler Lane and filed with the clerk and Recorder's office and specifically signed for use as restraint-free dog park. 3. Highland Park. The fenced and enclosed area located on the southwest side of the Softball Complex located between Haggerty Lane and Highland Boulevard that is specifically signed for use as a restraint-free dog park. 4. Snowfill. The fenced and enclosed area on the western edge of the City of Bozeman Landfill that adjoins McIlhattan Road that is specifically signed for use as a restraint-free dog park. 5. Gallatin County Regional Park. That portion of the area defined specifically by Certificate of Survey 2202B and filed with the clerk and recorder's office, that adjoins West Oak Street and Davis Lane, and that has been specifically identified by Gallatin County for use in a restraint-free status. 6. Cooper Park. The park area with full plat and legal description maintained by the City of Bozeman Planning office department of planning and community development identified as "PARK ADD, S12, T02S, R05E" and includes that park surrounded by South 8th Avenue, W. Story Avenue, W. Koch Street and S. 6th Avenue. 7. Centennial Park. The park area with full plat and legal description maintained by the City of Bozeman Planning Office86 department of planning and community development identified as "IMES ADD, BLOCK 38, LOTS 1-24" and is that park adjacent to N. Tracy Avenue, W. Cottonwood Street and even with N. Tracy Avenue. This restraint-free exemption shall be only from 5:00 a.m. MST to 9:00 a.m. MST. H. The city commission may, by resolution, designate additional areas within the city which shall be exempt from subsections A and B of this section in addition to those listed in subsection G of this section. (Code 1982, § 6.04.070; Ord. No. 1085, § 7, 1981; Ord. No. 1446, § 7, 1997; Ord. No. 1463, § 2, 1998; Ord. No. 1764, § 5, 8-24-2009) Sec. 8.02.090. Rabies prevention requirements; tag - penalty for violation. All dogs and cats over six months of age within the corporate limits of the city shall be vaccinated against the disease known as "rabies." Upon vaccination of such dog and/or cat, the veterinarian shall issue to the owner or owners of said animal a certificate showing the inoculation thereof and shall keep a duplicate of such certificate and shall issue a metallic tag showing such vaccination and the date thereof. The owner shall cause the tag to be attached to a collar or harness on such animal. The animal control officer or any police officer of the city shall have the 86 Should this be changed to department of planning and community development? Yes, please change to department of planning and community development. PROOFS Page 175 of 977 right to impound any dog or cat at large in the city, not wearing a collar or harness on which is displayed the license tag and also the vaccination tag. (Code 1982, § 6.04.080; Ord. No. 1085, § 8, 1981; Ord. No. 1446, § 8, 1997; Ord. No. 1764, § 6, 8-24-2009) Sec. 8.02.100. Quarantine for dogs biting persons. Every animal which bites a person shall be promptly reported to the animal control officer. Any dog or other animal which has bitten any person may be kept under quarantine under the direction and authority of the animal control officer. Such quarantine shall be for a period of ten days. If the owner of the animal has not appeared to claim the animal within 96 hours of the beginning of such quarantine, the animal may be destroyed and examined for rabies. If, during the quarantine period, the animal is adjudged as having rabies, the animal shall be destroyed and appropriate health authorities notified. If, after completion of the quarantine period, the animal is adjudged free of rabies, the animal shall be released to its owner upon written permission of the animal control officer unless otherwise ordered held pursuant to section 8.02.140 or 8.02.170. Quarantine and associated costs, including any costs of destruction, shall be at the owner's expense. No person shall fail or refuse to surrender any animal for quarantine or destruction as required herein when demand is made by the animal control officer or any law enforcement officer. (Code 1982, § 6.04.090; Ord. No. 1085, § 9, 1981; Ord. No. 1446, § 9, 1997; Ord. No. 1764, § 7, 8-24-2009) Sec. 8.02.110. Rabies prevention requirements; physician and veterinarian responsibilities. It shall be the duty of every physician, or other practitioner, to report to the animal control officer the names and addresses of persons treated for bites inflicted by animals, together with such other information as will be helpful in rabies control. It shall be the duty of every veterinarian to report to the animal control officer the diagnosis of any animal observed by such veterinarian as a rabies suspect. (Code 1982, § 6.04.100; Ord. No. 1085, § 10, 1981; Ord. No. 1764, § 8, 8-24-2009) Sec. 8.02.120. Nuisance animals prohibited; complaints. It is unlawful for any person to own, harbor, keep, or maintain any such nuisance animal, and it shall be the duty of the animal control officer and all law enforcement officers to file complaints for all such violations occurring in their presence. Any person aggrieved by a nuisance animal may file a complaint with the animal control officer. Where the offense is not committed in the presence of the animal control officer, the animal control officer shall investigate and issue an appropriate criminal or civil citation, or request prosecution for the violation through the city attorney, or their designee. (Code 1982, § 6.04.110; Ord. No. 1085, § 11, 1981; Ord. No. 1446, § 10, 1997; Ord. No. 1463, § 3, 1998; Ord. No. 1764, § 9, 8-24-2009; Ord. No. 1778, § 1, 2-1-2010) Sec. 8.02.130. Impoundment--Authorized when; records required. Unlicensed dogs, or other animals found at large, shall be taken by the animal control officer to the animal shelter. Any dangerous or vicious dog or animal may be taken up and impounded by the animal control officer, or any law enforcement officer, by appropriate means, including a tranquilizer gun if necessary. The animal shelter shall keep a complete register of every dog or other animal impounded, showing the time and place of taking, the breed, color, sex, and distinguishing marks of such dog or other animal; and, if licensed, the number of the license and the name and address of the owner. To the extent possible, male dogs shall be separated from female dogs at the city animal shelter and healthy dogs shall be separated from unhealthy dogs. (Code 1982, § 6.04.120; Ord. No. 1085, § 12, 1981; Ord. No. 1446, § 11, 1997; Ord. No. 1764, § 10, 8-24-2009) PROOFS Page 176 of 977 Sec. 8.02.140. Same--Notice to owner; redemption conditions. A. It is the duty of every owner of any dog or other animal to know its whereabouts at all times. In the event that any dog or other animal is impounded, the owner shall redeem the same within 96 hours, or it shall be subject to disposal by the animal shelter director, or their designee as provided in section 8.02.150. The owner of any impounded dog or other animal may redeem the same within such a period of time by accepting a citation for violation of any ordinance of the city for which the owner may be properly charged, and posting any boarding fees to the animal shelter in accordance with their established fee rates. B. Any unlicensed dog that is impounded may only be redeemed by the owner procuring a license, as required by section 8.02.020, in addition to paying the fees herein prescribed. C. If an impounded dog or cat has not been spayed or neutered ("unaltered") and is impounded a second time within three years, the dog or cat shall be altered prior to redemption at the owner's expense. D. If an impounded animal is suspected or known to have dangerous or vicious propensities, or accused of being a nuisance animal, it shall not be released or redeemed unless, or until, a hearing can be held before the municipal court to determine under what conditions, if any, such animal shall be released or redeemed. A complaint may be filed in municipal court against the person redeeming any dog or other animal impounded for violation of any provision of this article. E. To reclaim or redeem any animal impounded on the belief said animal is repeatedly at large, or is a nuisance, the owner must petition the municipal court for a hearing to determine under what conditions, if any, such animal shall be released or redeemed. During the hearing, the court will hear evidence to determine whether the animal should be declared a nuisance animal, to include any recommendations by the animal control officer. If a determination is made that the animal is repeatedly at large, or otherwise a nuisance, the owner shall be ordered to comply with provisions or conditions made by the court, including, but not limited to, ordered confinement of the animal in a secure enclosure. If the owner does not file such a petition within four days of the impound, the animal shall become the property of the city and subject to disposal by the animal shelter director, or their designee as provided in section 8.02.150. Impoundment and associated costs, including any costs of destruction, shall be at the expense of the owner. F. To reclaim or redeem any animal impounded on the belief said animal is dangerous, vicious or the subject of abuse, the owner must petition the municipal court for a hearing to determine under what conditions, if any, such animal shall be released or redeemed. During the hearing, the court will hear evidence to determine whether the animal should be declared dangerous, vicious, or whether the animal was endangered by cruel treatment, and will take into consideration any recommendations by the animal control officer regarding the release of the animal. If a determination is made that the animal is dangerous, vicious, or the animal has been subject to cruel treatment, the owner shall be ordered to comply with provisions or conditions made by the court. If the owner does not file such a petition within four days of the impound, the animal shall become the property of the city and subject to disposal by the animal shelter director, or their designee as provided in section 8.02.150 87. Impoundment and associated costs, including any costs of destruction, shall be at the expense of the owner. The animal shall not be released to the owner until such hearing is held. 87 Section 6.04.150 does not appear to exist in the ordinance. What is the correct section to cite? Reference should be to the following section 8.02.150 (Same-disposition of unredeemed animals.) PROOFS Page 177 of 977 (Code 1982, § 6.04.130; Ord. No. 1085, § 13, 1981; Ord. No. 1446, § 12, 1997; Ord. No. 1463, § 4, 1998; Ord. No. 1764, § 11, 8-24-2009) Sec. 8.02.150. Same--Disposition of unredeemed animals. If any impounded dog or other animal is not redeemed within 96 hours from the time it is taken and impounded, the owner thereof shall forfeit all right, title, and interest therein, and the animal shelter director, or their designee may offer the same for sale or adoption. Sale or adoption, and such certificate of sale, shall confer title and ownership of the dog or other animal, free of all claims and interest of the previous owner. In the event that any impounded dog or other animal is not redeemed by the owner or purchased, it may be disposed of by the animal shelter director, or their designee or contracting agency in a humane manner. Any dog or other animal suffering from an infectious disease shall not be released but shall be disposed of, unless the public health officer shall otherwise order. Any animal deemed dangerous or vicious by the court may not be sold or adopted without proper disclosure to the individual purchasing or adopting said animal, to include the nature and extent of the behavior prompting the declaration of the court. (Code 1982, § 6.04.140; Ord. No. 1085, § 14, 1981; Ord. No. 1764, § 12, 8-24-2009) Sec. 8.02.160. Cleaning up after animals88. Any person owning, keeping, possessing, or harboring any dog, cat, or other animal shall promptly remove and properly dispose of all feces left by the dog, cat, or animal on any public property and on any private property not owned by such person or lawfully occupied by such person, with the exception of service animals authorized under the Americans with Disabilities Act. (Code 1982, § 6.04.160; Ord. No. 1085, § 15, 1981; Ord. No. 1446, § 14, 1997; Ord. No. 1764, § 14, 8-24-2009) Sec. 8.02.170. Enforcement; animal control officer authority. A. For the purpose of discharging the duties imposed by this article and enforcing its provisions, the animal control officer, or any police officer, in addition to any and all other authority or power, whether the offense is committed in their presence or not and existing circumstances require immediate action, is authorized: 1. After investigation and upon finding of sufficient probable cause may To issue a notice to appear pursuant to under the provisions of MCA 46-6-310, to any violator of this article title; 2. After investigation and upon finding of probable cause may request criminal prosecution for the violation through the city attorney, or their designee; 3. After investigation may To issue a civil citation in accordance with chapter 24, article 2; 4. To inspect premises subject to a kennel license application, chicken license application, a business license for animal boarding or any premises where the owner or occupant of the premises has agreed to accept an animal to board or shelter when the animal is the subject of an investigation, impound, upon issuance of a warrant or in accordance with judicially recognized exceptions to the warrant requirement; 5. To demand from the occupants of any premises upon, or in which, an animal is kept or harbored, the exhibition of such animal and the license for such animal; 6. To impound an animal which has attacked a person or other animal, is otherwise 88 What about leader dogs? Note change. PROOFS Page 178 of 977 reasonably believed to be dangerous, or pursuant to a cruelty investigation against the animal in which protection of the animal from further abuse is warranted or in cases where an animal is loose, injured or in need of care and may order that animal held until such time as a hearing can be held before the municipal court to determine whether, and under what conditions, the animal should be released to the owner, in accordance with section 8.02.150; and 7. Upon order of the municipal court, to destroy an animal deemed a dangerous or vicious animal. (Code 1982, § 6.04.170; Ord. No. 1085, § 17, 1981; Ord. No. 1446, § 15, 1997; Ord. No. 1488, § 1, 1999; Ord. No. 1764, § 15, 8-24-2009; Ord. No. 1778, § 2, 2-1-2010) Sec. 8.02.180. Enforcement for violations; liability of owner; permit transfers. In all enforcement actions for violations of this article, the person who applied for and obtained the license for the dog or animal in question shall be deemed the person responsible for the violation, unless there has been a transfer of ownership prior to the violation. Any transfer of ownership must be evidenced by a transfer permit issued by the city department of finance. A transfer permit may be obtained by furnishing the name and address of the transferee to the city department of finance. Nothing herein shall preclude the filing of separate or additional charges against any person other than the owner charged with custody of the animal. (Code 1982, § 6.04.190; Ord. No. 1446, § 16, 1997; Ord. No. 1764, § 16, 8-24-2009) 6.04.190. Severability.89 If any part of this chapter is held to be unconstitutional or void, such part shall be deemed severable from the other parts, and the invalidity thereof shall not affect the remaining parts of this chapter. (Code 1982, § 6.04.190; Ord. No. 1085, § 19, 1981) Sec. 8.02.190. Type of offenses. Violation of any provisions in this article may be treated as either criminal violations or municipal infractions at the discretion of the animal control officer, director of public safety90 chief of police or city attorney, or their designee. This decision may be based on the individual and unique factors associated with each incident, to include, but not be limited to, impacts on risk to public safety, severity of violations and history or knowledge of previous violations. Offenses listed in this article involve absolute liability. These offenses shall not require proof of any one of the mental states as follows: "...mental states of purposely, knowingly or negligently as defined in MCA 45-2-101." (Code 1982, § 6.04.200; Ord. No. 1085, § 21, 1981; Ord. No. 1764, § 17, 8-24-2009) Sec. 8.02.200. Enforcement; penalty for violations. A. Criminal violations. 1. Criminal citation. Upon issuance of a notice to appear and complaint as a criminal violation, or upon issuance of a complaint by the city attorney's office, when such complaint states the criminal penalty, it shall be deemed a misdemeanor violation of this article. A notice to appear is deemed served when handed to the defendant. A summons is deemed served three business days after the date of issuance. 89 This section is covered by Code § 1.01.100. Delete. 90 Is "director of public safety" correct here? Please change to "chief of police." PROOFS Page 179 of 977 2. Penalty. Each person convicted of a misdemeanor for a violation of any of the provisions of this article, for which another penalty is not provided, shall upon conviction be punished according to the following schedule: a. First offense. A fine of not less than $100.00 and not to exceed $200.00. However, if the fine is paid within ten business days of the date of the notice to appear, the summons or warrant of arrest is served on the defendant, and then $50.00 of the fine shall be suspended. After the expiration of the ten business days, any fine over the minimum shall be suspended only at the discretion of the municipal court judge or their designee after the defendant has appeared in court. b. Second offense. A fine of not less than $200.00 and not to exceed $300.00. However, if the fine is paid within ten business days of the date of the notice to appear, the summons or warrant of arrest is served on the defendant, and then $100.00 of the fine shall be suspended. After the expiration of the ten business days, any fine over the minimum shall be suspended only at the discretion of the municipal court judge or their designee after the defendant has appeared in court. c. Third offense. A fine of not less than $300.00 and not to exceed $500.00. However, if the fine is paid within ten business days of the date of the notice to appear, the summons or warrant of arrest is served on the defendant, and then $100.00 of the fine shall be suspended. After the expiration of the ten business days, any fine over the minimum shall be suspended only at the discretion of the municipal court judge or their designee after the defendant has appeared in court. 3. Court costs. Upon conviction, the court costs, including costs of prosecution, costs of a jury trial, or costs of a judge pro tempore or any part of the court costs may be assessed against the defendant at the discretion of the court. B. Municipal infractions. 1. If the violation has been deemed to be a municipal infraction, pursuant to section 8.02.010, procedures and penalties shall be followed in accordance with chapter 24, article 2, unless otherwise specified differently in this section. 2. Failure to either pay the penalty provided within ten business days or request a civil hearing within ten business days from the date the civil citation was served shall be deemed to be an admittance that the violation occurred and shall authorize the municipal court judge, or their designee, to enter judgment against the person served. a. Civil citation. A civil citation or notice of municipal infraction shall contain the following information: (1) Name and address of the defendant, including any identifying information; (2) Description and section number of the infraction attested to by the animal control officer issuing the civil citation; (3) Location and time of the infraction; (4) Amount of the civil penalty to be assessed or the alternative relief sought, or both; (5) The manner, location and time in which the penalty may be paid if PROOFS Page 180 of 977 admitting to the infraction; (6) The manner, location and time in which a civil hearing may be requested if denying the infraction; (7) A notice that a failure to either pay the penalty or request a civil hearing within ten business days shall be deemed to be an admittance that the violation occurred and shall authorize the municipal court judge, or their designee, to enter judgment against the person served. b. Service. A civil citation may be served on a person who commits a municipal infraction by any one of the following methods: (1) Personal service; (2) By certified mail addressed to the defendant at the defendant's last known mailing address, return receipt requested; or (3) By publication, in the manner described in Rule 4D(5) of the Montana Rules of Civil Procedure. c. Court proceedings. The following procedures shall be followed upon a timely request for a civil hearing to contest a civil citation: (1) Upon receipt of a written request for a civil hearing, the police department91 shall within 301092 days notify the person of the date, time and location of the civil hearing. (2) The civil hearing shall be held before a city municipal court judge, or their designee. (3) The court shall ensure the defendant has received a copy of the complaint and that the defendant understands the complaint. The defendant may question all witnesses who appear for the municipality and produce evidence or witnesses on the defendant's behalf. (4) The defendant may be represented by counsel of the defendant's own choosing and at the defendant's expense. (5) The civil penalty shall not be assessed if, after a hearing, the municipal court judge, or their designee, enters a finding of no liability. The municipal court judge, or their designee, at any civil hearing under this article shall issue an order of judgment stating whether the person charged with the municipal infraction is liable for the municipal infraction; and if liable, the amount of any civil penalty, late penalty, and actual civil action hearing costs assessed against the person. Upon full satisfaction of penalties and costs, the police department93 shall file a notice of full satisfaction with the municipal court. A copy of the order of judgment issued shall be maintained by the city. (6) In a civil hearing the standard of proof must be by clear and convincing evidence. 91 Which department is this referring to? Add “police” before the word department. 92 Is this number correct? No. It should be “30 days.” 93 Which department is this referring to? Police department PROOFS Page 181 of 977 (7) If the defendant is found to have committed a violation after a civil hearing or requests a civil hearing and thereafter fails to appear at the time and place of the hearing, the defendant may be held liable for actual hearing costs in accordance with MCA 25-10-201 together with all actual costs of service of the notice of the municipal infraction either by mail or personal service. The defendant must pay the civil penalty, hearing costs and service costs within 301594 days from when judgment is entered. (8) Upon a finding that the defendant committed the violation by the municipal court judge, or their designee, the decision shall be final, without right of appeal, in accordance with MCA 25-30-108. d. Penalty. The imposition of civil penalty under this section is not a criminal conviction and is punishable by a civil penalty. (1) In addition to actual hearing costs or costs of service assessed, a defendant who admits liability or who is found liable after a civil action hearing shall pay the following civil penalty: (a) $100.00 fine, which shall be reduced to $50.00 if paid within ten business days from the date the civil citation is served. (b) $100.00 fine, which shall be reduced to $50.00 if paid within ten business days from the date the municipal court judge has issued an order of judgment on a finding that the defendant is liable. (2) The city attorney, or their designee, is authorized to file suit or engage the use of collection services to enforce collection of a civil penalty or court costs imposed under this article. In addition to the amount of the civil penalty collected, reasonable attorney's fees and court costs incurred in enforcing the collection shall be recoverable in that action. (Code 1982, § 6.04.210; Ord. No. 1446, § 17, 1997; Ord. No. 1764, § 18, 8-24-2009; Ord. No. 1778, § 3, 2-1- 2010) ARTICLE 3. CRUELTY TO ANIMALS* *State law reference—Cruelty to animals, MCA 7-23-4104. Sec. 8.03.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Police dog" means any dog specifically trained for law enforcement work and under the control of a law enforcement officer. 2. "Law enforcement officer" means any person who, by virtue of the person's office or public employment, is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person's authority. 3. "Animal control officer" means all law enforcement or peace officers as those terms are defined herein, as well as all duly appointed animal control officers and animal 94 Is this number correct? No. Should be 30 days. PROOFS Page 182 of 977 control supervisors appointed by the city to carry out and enforce this chapter. (Code 1982, § 6.08.010; Ord. No. 1489, § 1, 1999) Sec. 8.03.020. Interference with a police dog prohibited. No person shall purposely or knowingly provoke, grab, strike, harass, injure or otherwise interfere with a police dog trained for use by a law enforcement officer, including but not limited to a police K-9 handler, at any time during the performance, attempted performance or while waiting to perform the animal's or the officer's official duties. (Code 1982, § 6.08.020; Ord. No. 1489, § 2, 1999) Sec. 8.03.030. Prohibited. A. A person commits the offense of cruelty to animals if, without justification, the person either knowingly or negligently: 1. Subjects an animal to mistreatment or neglect including but not limited to overworking, beating, striking, tormenting, injuring or killing any animal; 2. Carries an animal in a cruel manner; 3. Fails to provide an animal in such person's custody with proper drink, food or shelter; 4. Abandons a helpless animal on any public street, railroad, or in any other place where it may suffer injury, hunger or exposure or become a public charge; 5. Promotes, sponsors, conducts or participates in any fight between any animals; or 6. Commits, omits or allows the commission or omission of any act which causes the unjustifiable physical pain, suffering or death of an animal. (Code 1982, § 6.08.030; Ord. No. 1489, § 3, 1999) Sec. 8.03.040. Enforcement--Penalty for violations.95 A. A person convicted of the offense of interference with a police dog may be fined an amount not to exceed $500.00 or sentenced to a term of imprisonment in the county jail not to exceed six months or both. B. A person found guilty of being cruel to an animal as described herein may be fined not less than $100.00 nor more than $500.00 or sentenced a term of imprisonment in the county jail not to exceed six months, or both. The court, in its discretion, may also terminate all ownership rights in the animal in addition to all other fines and imprisonment set forth in this article. (Code 1982, § 6.08.040; Ord. No. 1489, § 4, 1999) Sec. 8.03.050. Same--Animal control officer authority. A. For the purpose of discharging the duties imposed by this article and enforcing its provisions, the animal control officer or any police officer, in addition to any and all other authority or power, is authorized to: 1. Issue a notice to appear under the provisions of MCA 46-6-310, to any violator of this article title; and 2. Impound the abused animal and order that animal held until such time as a hearing can be held before the city court to determine whether and under what conditions 95 Do you wish the general penalty to apply instead? No. PROOFS Page 183 of 977 the animal should be released to the owner. (Code 1982, § 6.08.050; Ord. No. 1489, § 5, 1999) 9.26.010. Dog and other animal fights prohibited.96 No person or persons shall, by agreement or otherwise, plan, encourage, promote, hold or give any dog fight, cock fight, or fight of any kind between animals. It is the duty of any police officer of the city to prevent and stop such fights, and arrest all persons aiding, promoting or abetting the same. (Code 1982, § 9.26.010) State law reference—Similar provisions, MCA 45-8-210. 96 Deleted at request of city staff. PROOFS Page 184 of 977 Chapter 9 RESERVED PROOFS Page 185 of 977 Chapter AVIATION*97 *State law reference--Aeronautics, MCA 67-1-101 et seq. 5.08.010 Throwing objects from airplanes prohibited--Exceptions. No person in any aircraft or mechanical contrivance used for flying shall cause or permit to be thrown out, dropped, discharged, hurled or released within the corporate limits of the city any object or thing of any kind or description from said aircraft or mechanical contrivance used for flying, except loose water or gasoline or loose sand ballast when absolutely essential to the safety of the occupants of the aircraft, and except as provided in Section 5.08.020 of this chapter. It is declared to be the intention hereof that this section shall be strictly construed, and shall prohibit the distribution of handbills, circulars, cards, papers, magazines or other printed matter from such aircraft or mechanical contrivance used for flying, except as provided in Section 5.08.020 of this chapter. (Code 1982, § 5.08.010) 5.08.020 Commercial enterprises involving aircraft--Permit required. No person shall distribute printed or written matter of any kind from, make public exhibition flights in, carry or tow banners on or from, operate a loudspeaking device from, or carry explosives in any aircraft or mechanical contrivance used for flying within and over the corporate limits of the city, without first obtaining a permit to do so from the director of public safety. The director of public safety is authorized to issue permits to the pilots or operators of aircraft or mechanical contrivances used for flying for the purposes set forth, if the person operating the aircraft or mechanical contrivance is duly licensed by the Federal Aviation Administration and if, in his judgment, the operation thereof will not endanger public safety of the inhabitants of the city and will promote some interest or cause for the benefit of the city itself, its citizens or the citizens of the United States. Such permit shall set forth the nature and extent of the operation for which the permit is issued and the duration of the permit. (Code 1982, § 5.08.020) 97 Deleted at request of city staff. PROOFS Page 186 of 977 Chapter 10 BUILDINGS AND BUILDING REGULATIONS* *State law reference—Housing and construction, MCA 7-15-2101 et seq.; building construction standards, MCA 50-60-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. TECHNICAL CODES DIVISION 1. GENERALLY Sec. 10.02.010. Model technical codes and administrative rules. A. Adoption of the model technical codes and administrative rules. 1. The current editions of the model technical codes, to include but not be limited to building, plumbing, electrical and mechanical, and all accompanying appendices, amendments and modifications adopted or required to be adopted by the Building Codes Bureau, Montana Department of Labor and Industry (or its successor), as set out in the Administrative Rules of Montana (hereinafter ARM), as amended from time to time by the building codes bureau, are adopted by reference and incorporated in this chapter as if set forth in full, except for any exceptions noted in this article or any regulations not applicable to local government jurisdictions. 2. One copy of each code shall be kept on file in the office of the city clerk of Commission of the City of Bozeman, 411 East Main Street, Bozeman, Montana, and one copy shall be kept on file in the offices of the building division.98 3. Any amendments to the codes as originally adopted by Bozeman Municipal ordinance in this chapter which may be adopted by the building codes bureau and which apply to local government jurisdictions, including the adoption of the latest editions of the model technical codes, to include but not be limited to building, plumbing, electrical and mechanical, or applicable Administrative Rules of Montana, shall become effective in the city through automatic adoption upon execution of an administrative order of the city manager unless a different effective date is specified in the administrative order. 4. A copy of the amendment notification will be kept in the office of the city clerk. 5. The Model Technical Codes and Administrative Rules of Montana as adopted in this chapter or as amended through automatic adoption in subsection A.3 of this section, and the other provisions of this chapter are applicable within the city building jurisdiction. B. Municipality and city defined. Whenever the words "municipality" or "city" are used in the code adopted by this article, they shall mean the City of Bozeman. C. Violation; penalty. Violation of the Model Technical Codes or Administrative Rules of Montana, as adopted in this chapter or as amended through automatic adoption in subsection A of this section, or violation of any other provision of this chapter is a misdemeanor. Any person convicted of a violation shall be subject to the penalties of section 1.01.210. Each day that the violation continues is a separate offense, and shall be punished accordingly. The court, in its 98 Is "building division" the correct title? It's used throughout this chapter. Yes. The city’s building code review services are organized as a division of the fire department. PROOFS Page 187 of 977 discretion, may add to the fines any costs incurred by the city in the prosecution of the charge or enforcement of the code. (Code 1982, §§ 15.01.010, 15.01.020; Ord. No. 1389, §§ 1, 2, 1994; Ord. No. 1528, § 1, 2000; Ord. No. 1631, §§ 1--3, 4-4-2005) State law reference—Authority to adopt technical codes by reference, MCA 7-5-4202(1). Sec. 10.02.020. Building division fees; permits. A. Building division fees. 99The building division shall charge fees for permits, plan checks and other work based upon the following criteria and formulas. The specific fee tables referenced below, and including those for the various uniform, national or international codes, shall be approved by resolution of the city commission. 1. Fees for additional and new building permits. Fees for building additions and commercial/residential building construction projects will be assessed based upon the current number of employees and their labor costs, internal and external administrative costs, the building square footage, and the labor factors derived from approved fee tables. The permit formula is: Administrative and Internal Charges = Administrative Charges/Employee # Personnel Administrative Charges/Employee = Administrative Charges/Employee/Hour 1800 (net work hours/year) Admin. Charges/Employee/Hour + Inspector's Hourly Pay Rate = Total Hourly Rate. (Total Hourly Rate)(Table A)(Building Sq. Footage) = Building Permit Fee. 2. Building permit factors: Table A is based on Amount of Inspection Time/Sq. Ft., Construction Type and Fire Rating. 3. Plan review formula is: Administrative and Internal Charges = Administrative Charges/Employee # Personnel 99 Please review the information in subsections A.1 through 4. It appears as though some of the information in Ord. 1631 was inadvertently omitted or unformatted with the passage of Ord. No. 1682. Please advise us of any changes that are required. We recognize the issues with these two sections. For purposes of finishing this project please leave as is in the current draft except for correcting the form. An ordinance amending this section to comply with the International Code Conference fee formula is currently in the works. We’ll include the revised section in the first supplement to the code later this year. PROOFS Page 188 of 977 Administrative Charges/Employee = Administrative Charges/Employee/Hour 1800 (net work hours/year) Admin. Charges/Employee/Hour + Plans Examiner Hourly Pay Rate = Total Hourly Rate. (Total Hourly Rate)(Table B)(Building Sq. Footage) = Plan Review Fee. 4. Plan review factors: Table B is based on Amount of Plan Review Time/Sq. Ft., Construction Type and Fire Rating. 5. Fees for electrical, plumbing, mechanical, fire suppression systems, and building remodel permits will be determined based on the contractor valuation of the project, subject to the building division's approval of the valuation. The permit valuation will be applied to the permit amounts detailed in Table C. 6. Related fees. The payment of the fee for construction, alteration, removal or demolition for work done in connection to or concurrently with the work authorized by a building permit shall not relieve the applicant or holder of the permit from payment of other fees that are prescribed by law in IBC section 108.5 and IRC section R108.4. a. Reinspection fees. Reinspection fees may be assessed against a previously issued permit when additional reinspections are made in excess of what is commonly performed. Such fees are based on the extra time expended, multiplied by the building inspectors total hourly rate. This additional fee is to be paid to the building division prior to any further inspections being made by the building inspector to the site. The reinspection fee is to be based on a minimum time of two hours. b. Move-in prior to issuance of a certificate of occupancy. When an occupant moves into a structure prior to a certificate of occupancy being issued by the building inspector, a reinspection fee shall be assessed against the previously issued permit. Such fees are based on the extra time expended, multiplied by the building inspector's total hourly rate. This additional fee is to be paid to the building division prior to any further inspections being made by the building inspector to the site. The reinspection fee is to be based on a minimum time of two hours. B. Plan review; permit expiration; work without valid permit. 1. Time limitation of application. An application for a permit for any proposed work shall be deemed to have been abandoned 180 days after the date of filing, unless such application has been pursued in good faith or a permit has been issued; except that the building official or designee is authorized to grant one or more extensions of time for additional periods not exceeding 90 days each. The extension shall be requested in writing and justifiable cause demonstrated. 2. Permit expiration. Every permit issued shall become invalid unless the work on the site authorized by such permit is commenced within 180 days after issuance, or, if the work authorized on the site by such permit is suspended or abandoned for a period of 180 days after the time the work is commenced. The building official or designee is authorized to grant, in writing, one or more extensions of time, for periods not to exceed 180 days each. The extension shall be requested in writing and PROOFS Page 189 of 977 justifiable cause demonstrated. 3. Plan review and permit renewal. a. In order to renew action on a plan review after expiration, the applicant must re-submit plans and pay a new plan review fee. b. In order to renew action on an expired permit, a new permit shall first be obtained and the fee therefor shall be one-half the amount required for a new permit for such work, provided no changes have been made or will be made in the original plans and specifications for such work, and provided further that such suspension or abandonment has not exceeded one year. c. In order to renew action on a permit after expiration has exceeded one year, the permittee shall pay a new full permit fee.100 4. Work commencing before permit issuance. Any person who commences any work on a building, structure, electrical, gas, mechanical or plumbing system before obtaining the necessary permits shall be subject to an additional fee as established by the building division that shall be in addition to the required fees. (Table D) The fee shall not be more than twice the permit fee amount. C. Refunds. 1. Plan review fee refunds will not be given if the review has already been performed on the plans and specifications. 80 percent of the plan review fee will be refunded if the review of the plans and specifications has not commenced. 2. Permit fees will not be refunded if the work has commenced and inspections have been made. 80 percent of the permit fee will be refunded if no inspections have been performed at the site and the work is to be abandoned or postponed for more than 180 days. (Ord. No. 1631, § 4(15.02.010--15.02.030), 4-4-2005; Ord. No. 1682, § 1, 11-27-2006) Sec. 10.02.030. Uniform International Building Code and the uniform building code standards101. The International Building Code, 20092003 Edition, as provided by ARM 24.301.131 (or successor provision) is hereby adopted subject to amendment or modification under section 10.02.010. The International Building Code regulates the erection, construction, enlargement, alteration, repair, moving, removal, demolition, conversion, occupancy, equipment, use, height, area and maintenance of all buildings and/or structures in the jurisdiction of the city; and provides for the issuance of permits and collection of fees therefor. The International Building Code is subject to any modifications as stated in ARM 24.301.146 (or successor provision). 100 Note change requested by city staff. This reflects a change/clarification in the current IBC. 101 Code ch. 15.01 adopts future editions. Why do you need these individual chapters adopting the various Codes? They are now out-of-date. Adopting future editions might be considered unlawful delegation of legislative authority, however. There’s a detailed explanation as to why the building division folks feel we need these separate chapters for each code but mainly the rationale is the state and city adopts specific amendments to these codes that may vary from code cycle to code cycle. Update to the 2009 edition. PROOFS Page 190 of 977 (Code 1982, § 15.04.010; Ord. No. 1285, § 1, 1989; Ord. No. 1348, § 1, 1992; Ord. No. 1389, § 3, 1994; Ord. No. 1528, § 2, 2000; Ord. No. 1559, § 1, 3-18-2002; Ord. No. 1631, § 5, 4-4-2005) Sec. 10.02.040. International Residential Code. The International Residential Code (IRC), 20061022003 Edition, as provided by ARM 24.301.154 (or successor provision) is hereby adopted subject to amendment or modification under section 10.02.010. The IRC is a nationally recognized model code setting forth minimum standards and requirements for detached one or two family dwellings and multiple single-family dwellings (townhouses) not more than three stories in height, and their accessory structures. (Code 1982, § Code 1982, § 15.05.010; Ord. No. 1290, § 1, 1989; Ord. No. 1389, § 4, 1994; Ord. No. 1631, § 6, 4-4-2005) Sec. 10.02.050. International Existing Building Code. The International Existing Building Code (IEBC), 20091032003 edition, as provided by ARM 24.301.171 (or successor provision) is hereby adopted subject to amendment or modification under section 10.02.010. The International Existing Building Code may be used as an alternate prescriptive method for the remodel, repair, alteration, change of occupancy, addition, and relocation of existing building. (Ord. No. 1631, § 7, 4-4-2005) Sec. 10.02.060. International Fuel Gas Code. The International Fuel Gas Code, 20091042003 Edition, as provided by ARM 24.301.173 (or successor provision) and as published by the international code council, is hereby adopted subject to amendment or modification under section 10.02.010. The International Fuel Gas Code is a nationally recognized model code setting forth minimum standards and requirements for certain mechanical installations. (Ord. No. 1631, § 8, 4-4-2005) Sec. 10.02.070. International Mechanical Code. A. International Mechanical Code Adopted. The International Mechanical Code, (ICC version) 20091052003 Edition as provided by ARM 24.301.172 (or successor provision) is hereby adopted subject to amendment or modification under section 10.02.010. The International Mechanical Code, published by the International Code Council, is a nationally recognized model code setting forth minimum standards and requirements for certain mechanical installations. __ Mechanical permit fees.106 The mechanical code fees .schedule at Table No. 3-A of the Uniform Mechanical Code is amended to read as follows: Table No. 3-A MECHANICAL PERMIT FEES 102 Update to 2006 edition requested by city staff. 103 Update to 2009 edition requested by city staff. 104 Update to 2009 edition requested by city staff. 105 Update to 2009 edition requested by city staff. 106 Deleted section as superseded by former chapter 15.02. PROOFS Page 191 of 977 Cost of Mechanical System Mechanical Permit Fee 0--$1,000 $20 $1,001--$10,000 $20 for the first $1,000 plus $5 for each additional $1,000 or fraction thereof, to and including $10,000 $10,001--$50,000 $65 for first $10,000 plus $4 for each additional $1,000 or fraction thereof, to and including $50,000 $50,001 $225 for first $50,000 plus $2 for each additional $1,000 or fraction thereof to and including $100,000 $100,000 $325 for first $100,000 plus $0.50 for each additional $1,000 or fraction thereof, to and including $1,000,000 $1,000,000 $775 for first $1,000,000 plus $0.25 for each additional $1,000 or fraction thereof Note: The mechanical cost shall be the cost to the owner of all labor charges and all mechanical materials and equipment installed as part of the mechanical system. The cost of the plumbing system, which is covered by the Uniform Plumbing Code, is not to be included. (Ord. No. 1204 § 1(part), 1986) B. Amendments and additions to the InternationalUniform Mechanical Code.107 The following is added to the most current adopted International Uniform Mechanical Code Section 504(f): (d) LPG appliances may be installed in single-family dwellings not withstanding the prohibition on the installation of such appliances by the UMC and the UPC provided: (i) All LPG piping is pressure tested to insure it is gastight and not installed in concealed locations. Concealed LPG piping means piping and fittings which, 107 Note changes to International Mechanical Code. PROOFS Page 192 of 977 when in place in the finished buildings, would require removal of permanent construction to gain access to the piping. Piping may be installed in an attic, under floor area, including basement or crawl space, provided this area is adequately ventilated from at least two exposed sides of the building. Each ventilation opening shall be a minimum of 36 square inches. (ii) The appliance is vented-type, approved by a nationally recognized testing organization, and installed in accordance with the manufacturer's recommendations. (iii) Automatically controlled LPG appliances shall be of the complete shut off type. Complete (100 percent) shut off means the gas to both the pilot light and the main gas burner will shut off in the event of pilot outage. (iv) A readily accessible and identified shut off valve controlling the flow of gas to the entire gas piping system shall be installed near the point of connection to the service piping supply connection of the LPG tank. The container service valve may be used for this purpose. (v) The installer shall promptly report any accident/incident where LPG may have been a factor, or could become a contributing factor, to the building codes bureau by phone. If death or serious personal injury occurs or if property damage in excess of $500.00 results from any such accident/incident, a written report shall be prepared by the installer and presented to the bureau within 15 days of the accident/incident. (vi) An LPG detection/shut-off valve system shall be installed that sounds an alarm and shuts off the main gas supply in the event of the detection of LPG. The valve shall be solenoid type shut-off valve, held open when powered, and shall be located outside the building foundation. (Code 1982, § 15.12.010; Ord. No. 1204, § 1, 1986; Ord. No. 1288, § 1, 1989; Ord. No. 1350, §§ 1, 2, 1992; Ord. No. 1389, § 8, 1994; Ord. No. 1631, § 10, 4-4-2005) Sec. 10.02.080. International Energy Conservation Code. The International Energy Conservation Code, 2009 edition108, as provided by ARM 24.301.161 (or successor provision) is hereby adopted subject to amendment or modification by section 10.02.010. The International Energy Conservation Code is a nationally recognized model code for energy efficient construction of buildings. (Code 1982, § 15.14.010; Ord. No. 1304, § 1, 1990; Ord. No. 1389, § 9, 1994; Ord. No. 1631, § 11, 4-4-2005) Sec. 10.02.090. Uniform Plumbing Code. A. Uniform Plumbing Code Adopted. The Uniform Plumbing Code, 20091092003 edition as provided by ARM 24.301.301 (or successor provision), is hereby adopted subject to amendment or modification by section 10.02.010. The purpose of this code is to provide minimum requirements and standards for plumbing installations for the protection of the public health, safety and welfare. The Uniform Plumbing Code is a nationally recognized model code setting forth minimum standards and requirements for plumbing installations. B. Supplemental documents. To supplement the Uniform Plumbing Code, 1985 Edition, as modified by the state, the city adopts and incorporates by reference into the Bozeman Municipal 108 Update to 2009 edition requested by city staff. 109 Update to 2009 edition requested by city staff. PROOFS Page 193 of 977 Code the amendments as set forth in the Administrative Rules of Montana at section 24.301.3011108.70.301 et seq.(Building Codes, Subchapter 3, Plumbing Requirements). which are incorporated by reference into the Bozeman Municipal Code. 15.16.020. Additions111. The following paragraph shall be added to the Uniform Plumbing Code. Add Section 20.16 to PART I--Administration of the Uniform Plumbing Code as follows: __ CONNECTIONS TO SEWER AND WATER MAINS: The city of Bozeman shall make all service connections (doing all necessary work and furnishing necessary materials) from the sewer and water mains to the property line; charges for such work shall be paid by the property owner or his agent and accompany the application for service connections. Water services, from property line to and including the water meter, shall be installed by the city Water Department upon proper application by the owner or his agent and receipt of a deposit based upon the estimated cost; provided, that any excess over the actual costs shall be refunded to the applicant upon completion of the work. Should the actual cost be more than the estimated deposit the owner or his agent shall pay the additional fee. (Ord. 1289 § 2, 1989; Ord. 1203 § 2, 1986) 15.16.030. Schedule of fees amended--plumbing permit fees112. The schedule of fees in the Uniform Plumbing Code is.amended to read as follows: PLUMBING PERMIT FEES Fee For issuing each permit... $15.00* For each plumbing fixture, or set of fixtures on one trap including water, drainage, piping and backflow protection thereof... 6.00 For each building sewer and each trailer park sewer... 10.00 For each water heater and vent... 6.00 For each gas piping system: One to four outlets... 6.00 Five or more, per outlet... 110 Note the cite update. 111 Note comment by city staff: This section is covered by processes currently included in Title 13 related to sewer and water connections. Please delete as this provision conflicts with the current process. 112 Deleted as superseded by former chapter 15.02. PROOFS Page 194 of 977 2.00 For installation, alteration or repair of water piping and/or water treatment equipment... 6.00 Building storm drains and/or rain water leaders per each... 6.00 For repair or alteration of drainage or vent piping... 6.00 For each lawn sprinkler system and/or fire protection system, including backflow devices... 6.00 For each mobile home inspection including gas lines, venting and appliances, including issuance of permit... 22.50 * except for replacement of water heaters (Code 1982; Ord. 1351 § 2, 1992; Ord. 1289 § 3(part), 1989; Ord. 1203 § 3, 1986) (Code 1982, § 15.16.010; Ord. No. 1260, § 1, 1988; Ord. No. 1289, § 1, 1989; Ord. No. 1351, § 1, 1992; Ord. No. 1389, § 10, 1994; Ord. No. 1528, § 4, 2000; Ord. No. 1631, § 12, 4-4-2005) Secs. 10.02.100--10.02.240. Reserved. DIVISION 2. ELECTRICAL CODE Sec. 10.02.250. National Electrical Code. The National Electrical Code, 20081132002 Edition, as provided by ARM 24.301.401 (or successor provision), is hereby adopted subject to amendment or modification under section 10.02.010. The National Electrical Code is a nationally recognized model code setting forth minimum standards and requirements for electrical installations. (Code 1982, § 15.08.010; Ord. No. 1084, § 1, 1981; Ord. No. 1167, 1984; Ord. No. 1259, § 1, 1988; Ord. No. 1286, § 1, 1989; Ord. No. 1389, § 7, 1994; Ord. No. 1631, § 9, 4-4-2005) Sec. 10.02.260. Municipality and city defined. Whenever the words "municipality" or "city" are used in the code adopted by this article, they shall mean the City of Bozeman. (Code 1982, § 15.08.020; Ord. No. 1084, § 2, 1981) Sec. 10.02.270. Electrical inspector defined. The office of the electrical inspector shall be made a part of the department of public safety and the electrical inspector shall be appointed by the city manager. Whenever the term "electrical inspector" is used in the code adopted by this article, it shall be construed to mean the electrical inspector or the electrical inspector's authorized representative. (Code 1982, § 15.08.030; Ord. No. 1084, § 3, 1981) 113 Update to 2008 edition requested by city staff. PROOFS Page 195 of 977 Sec. 10.02.280. Permit--Required. No alteration shall be made in the existing wiring of any building, nor shall any building be wired for the placing of any electrical current, nor shall any alterations be made in the wiring in any building after inspection, without first notifying the electrical inspector and securing a permit therefor. Where work for which a permit is required by this article is started or proceeded with prior to obtaining said permits, the fees specified shall be doubled, but the payment of such fee shall not relieve any person from fully complying with the requirements of this article in the execution of the work, nor from the other penalties prescribed in this article. (Code 1982, § 15.08.040; Ord. No. 1084, § 4(a), 1981) 15.08.050. Permit--fee schedule--period of validity114. __ At the time the application for a permit is made, the applicant shall pay to the electrical inspector the following fees. __ Type of Installation Permit Fee 1. Single-family dwellings (includes garage wired at the same time as the house) 100 to 200 amp service $43.00 201 to 300 amp service 66.00 301 or more amp service 83.00 2. Private property accessory buildings (garages, barns, sheds, etc.) Up to a 200 amp panel $20.00 201 to 300 amp panel 50.00 301 or more amp panel 66.00 3. Residential temporary construction service: no separate fee; it is included in the above fees for the service of panel which must be paid prior to the wiring of a building or setting of a construction pole. 4. Interior rewire only, or new addition to a home $23.00 5. Change of service 14.00 114 Deleted section as superseded by former chapter 15.02. PROOFS Page 196 of 977 6. Mobile home installation: in a court or park 14.00 other than a court or park 20.00 7. Modular homes: no basement or garage $20.00 with a basement and/or garage 33.00 8. Multifamily dwellings (duplex through 12 units) 25.00 per dwelling unit Note: For buildings containing more than 12 units, use the commercial schedule that follows. 9. Mobile home courts and/or recreational vehicle parks (new, rewire, or addition): first three spaces $7.00 per space additional spaces over three spaces 2.50 per space 10. New service (livestock well, irrigation well, etc.) 20.00 11. Irrigation pumps or machines, per unit (one pump and/or one pivot) 16.50 12. Hot tubs and spas 10.00 13. All other installations--Commercial, industrial, institutional, or for public use. (Fees listed in this section shall apply to any and all electrical installations not mentioned elsewhere in this schedule. The wiring cost shall be the cost to the owner of all labor charges and all wiring materials and equipment installed as part of the wiring system. The value of factory-installed wiring, switches and controls, or equipment, shall be included in wiring costs. Value of motors and appliances need not be included.) $1 to $1,000 $20.00 $1,000 to $10,000 -- $20 for the first $1,000 plus $8.50 for each additional $1,000 or fraction thereof to and including $10,000 PROOFS Page 197 of 977 $10,000 $96.50 $10,000 to $50,000 -- $96.50 for the first $10,000 plus $3.50 per thousand for each additional $1,000 or fraction thereof to and including $50,000 $50,000 236.50 $50,000 and up -- $236.50 for the first $50,000 plus $1.50 per thousand for each additional thousand or fraction thereof $100,000 311.50 $200,000 461.50 $300,000 611.50 14. Temporary construction service (for commercial, industrial, institutional, of public-use jobs only) 20.00 Note: This additional $20.00 fee is required in addition to the above job cost inspection fees only if a temporary service will be used, and is to be paid at the same time as the regular job cost permit fee before construction begins. __ Electrical permits on which the fees are under one hundred dollars are valid for a period of one year from the date of issuance. (Code 1982, § 15.08.050; Ord. 1167 (part), 1984; Ord. No. 1084, § 4(b), 1981) Sec. 10.02.290. Same--Plans required with application. Accompanying the application for permit, there shall be filed with the inspector plans of the work to be undertaken on all nonresidential construction and, if deemed necessary by the electrical inspector, plans may be required for residence-type work. The above-mentioned plans shall show the character and precise location of the premises. The permit shall not be held to allow cutting of any structural features of any buildings. The permit shall cover the work set forth in the plans only, and if additional work is to be undertaken, a new permit to cover such additional work shall be secured in the usual manner. (Code 1982, § 15.08.060; Ord. No. 1084, § 4(c), 1981) Sec. 10.02.300. Contractor's bond requirements. No person, firm or corporation shall engage in installing, repairing, or altering electrical wiring or conductors within the corporate limits of the city for the purpose of transmitting electrical energy for light, heat or power, excluding any public electric utility, without first filing a $5,000.00 bond, and conditioned that the person, firm or corporation will in good faith perform all of the things required by the ordinances of the city, and that if any injury to any person or damage to any property results by reason of the person's, firm's or corporation's failure or neglect to conform with any ordinance relating to the installation of electric wiring and equipment, the person, firm or PROOFS Page 198 of 977 corporation shall save harmless and indemnify such person injured or the owner of such property damaged. Said bond shall be filed in the office of the building official for approval. (Code 1982, § 15.08.070; Ord. No. 1084, § 7(part), 1981) Sec. 10.02.310. Wiring--Home owner rights and restrictions. If an owner desires to do wiring in the owner's own home (single-family residence), the owner may do so without a license, but the owner must first obtain a permit required by this article; provided, however, the electrical inspector may refuse to issue a permit to any person who, in the electrical inspector's estimation, is not competent to install the electrical work in accordance with the regulations of this article. (Code 1982, § 15.08.080; Ord. No. 1084, § 7(part), 1981) Sec. 10.02.320. Same--Sign company restrictions. Sign companies shall be permitted to do wiring in signs and outline lighting on the secondary side of the transformers only. (Code 1982, § 15.08.090; Ord. No. 1084, § 7(part), 1981) Sec. 10.02.330. Right of entry for inspection. The electrical inspector and assistants shall carry proper credentials of their respective offices, upon exhibition of which they shall have the right of entry, during usual business hours, to inspect any and all building and premises in the performance of their duties. However, should the owner or occupant disapprove entry, the inspector shall produce a search warrant signed by the proper authority. (Code 1982, § 15.08.120; Ord. No. 1084, § 5(a), 1981) Sec. 10.02.340. Discontinuance of service; conditions; electrical inspector authority. The electrical inspector shall have supervision over all wires, materials, apparatus and fittings used for the transmission, distribution or consumption of electrical current for light, heat or power, or for any other purposes, whether new or old; and whenever any such wires, materials, apparatus or appurtenances are, or may become, dangerous to life or property, or liable to cause fire, accident or injury, the electrical inspector is empowered to order the owner, agent or user to remove or repair such within 48 hours after receipt of the notice. In case the order is not complied with, the electrical inspector shall order the current to be disconnected from the installation or the part of it which is considered hazardous, and all owners, agents, users, light and power companies and others shall not have the current or circuit connected again until the electrical inspector has given a written permit to do so. All firms, corporations or individuals, whether operating under a regular franchise granted by the city or not, shall, upon written notice from the electrical inspector, disconnect from any building the service on any circuit as designated by the notice, and shall not reconnect the building service or circuit, except upon written notice from the electrical inspector. (Code 1982, § 15.08.130; Ord. No. 1084, § 5(b), 1981) Sec. 10.02.350. Inspection requirements for completed work. Upon the completion of the wiring or alterations or additions to the wiring of any building, it shall be the duty of the person, firm or corporation installing the same to notify the electrical inspector, who shall inspect the installation within 24 hours of the time such notice is given, Sundays and holidays excepted, and if it is found to be fully in compliance with this article and does not constitute a hazard to life and property, the electrical inspector will authorize connection to the electrical service and the turning on of the current; provided however, that the inspector may give temporary permission to furnish electric current to or the use of the electric current, through any wires, or other equipment for a length of time not exceeding 30 days, if it appears that PROOFS Page 199 of 977 such wires, etc., may be used safely and that there exists an urgent necessity for such use and special permission. All wires that are to be hidden from view shall be inspected before concealment and any person, firm or corporation installing such wires shall notify the electrical inspector, giving him the inspector 24 hours in which to make the required inspection before such wires are concealed; provided, that on large installations where concealment of parts of the wiring proceeds continuously, the person, firm or corporation installing the wiring shall give the electrical inspector due notice and inspection shall be made periodically during the progress of the work. (Code 1982, § 15.08.140; Ord. No. 1084, § 5(c), 1981) Sec. 10.02.360. Reinspection and correction of installations. When considered advisable by the electrical inspector or upon request by the fire chief, light and power company or the owner or tenant of any building, the electrical inspector shall make a thorough reinspection of the installation in any buildings of all electric wiring, electrical devices and electrical material now installed or that may hereafter be installed within the city. When the installation of any such wiring, devices or materials is found to be in a dangerous or unsafe condition, the person, firm or corporation owning, using or operating the same shall be notified and shall make the necessary repairs or changes required to place such wiring, devices and materials in a safe condition and have such work completed within four days, or any longer period specified by the electrical inspector in said notice. The electrical inspector is empowered to order the discontinuance of electrical service to such wiring, devices or materials so found to be defectively installed until the installation of such wiring, devices and material has been made safe as directed by the electrical inspector. (Code 1982, § 15.08.150; Ord. No. 1084, § 5(d), 1981) Sec. 10.02.370. Approval; conformity with specifications required. No inspection shall be approved unless the electrical light, power and heating installations are in strict conformity with the provisions of this article, the statutes of the state, and the National Electrical Code as adopted in this article. (Code 1982, § 15.08.160; Ord. No. 1084, § 5(e), 1981) Sec. 10.02.380. Condemnation of installation; petition for review. When the electrical inspector condemns all or part of any electrical installation, the owner may, within five days after receiving written notice from the electrical inspector, file a petition in writing for review of said action of the electrical inspector with the board of appeals115city clerk, who shall refer the petition to a board of three competent parties to be appointed by the mayor, with the approval of the city commission, upon receipt of which the board shall at once proceed to determine whether said electrical installation complies with this article, and within three days shall make a decision in accordance with its findings, which shall be returned to the city clerk for action. (Code 1982, § 15.08.170; Ord. No. 1084, § 5(f), 1981) Sec. 10.02.390. Connections unlawful until wiring approved. It is unlawful for any electric utility to make any electrical connections to any building or premises until the wiring has been approved by the electrical inspector; provided, however, special permission may be given to him the utility116 to make a temporary connection and use portions of 115 Note change requested by city staff. 116 Is "him" referring to the electric utility in this instance? The proposed edit is correct. PROOFS Page 200 of 977 the wiring in a building during construction, if it appears that this can be safely done and there exists an urgent necessity for such use and for such special permission. (Code 1982, § 15.08.180; Ord. No. 1084, § 6, 1981) Sec. 10.02.400. Liability limitations. This article shall not be construed to relieve from, or lessen the responsibility or liability of any party owning, operating, controlling or installing any electric wiring, electric devices or electrical material for damages to persons or property caused by any defect therein, nor shall the city or the inspector be held as assuming any such liability by reason of the inspection authorized in this article, or certificate of inspection issued as provided in this article. (Code 1982, § 15.08.190; Ord. No. 1084, § 10, 1981) ARTICLE 3. BUILDING MOVING CODE Sec. 10.03.010. Title for citation. This article shall be known as the "Moving Code," may be cited as such, and will be referred to herein as "this code article." (Code 1982, § 15.20.010; Ord. No. 1631, § 13, 4-4-2005) Sec. 10.03.020. Purpose of article provisions; certain buildings exempt. A. Purpose. The purpose of this article is to provide minimum standards to safeguard life, safety, health, property and public welfare by regulating and controlling the moving or relocating of buildings and structures over, along or across highways, streets and alleys in the city. B. Exception. Buildings or structures less than 250 cubic feet in size shall be exempt from the provisions of this article. (Code 1982, § 15.20.020; Ord. No. 1631, § 14, 4-4-2005) 15.20.030. Definitions and interpretation of language117. __ For the purpose of this code, certain abbreviations, terms, phrases, words and their derivations shall be construed as specified in this section. Words used in the singular include the plural, and the plural the singular. Words used in the masculine gender include the feminine, and the feminine the masculine. __ "Building Official" means the officer or designee charged by the director of public safety with the administration and enforcement of this code. __ "Municipality" or "city." Whenever used in the code adopted in this chapter, "municipality" or "city" means the city of Bozeman." (Code 1982, § 15.20.030; Ord. No. 1631, § 15, 4-4-2005) Sec. 10.03.030. Enforcement authority. The building official or designee is authorized and directed to enforce all the provisions of this article. (Code 1982, § 15.20.040; Ord. No. 1631, § 16, 4-4-2005) 117 Note deletion requested by city staff. PROOFS Page 201 of 977 Sec. 10.03.040. Building house118 mover--License and insurance required. A. Any person, firm or corporation who engages in the business of moving or relocating buildings or structures within, without or into the corporate city limits shall first obtain a building house mover's license in accordance with chapter 12, article 2. This license is not transferable or assignable to other persons, firms or corporations. B. Any person, firm or corporation engaging in the business of moving or relocating buildings or structures within, without or into the corporate city limits shall first provide proof of general liability insurance in an amount acceptable to the city; and which includes the city as an additional insured. C. A copy of the insurance policy shall be filed with the building division and shall release, defend, indemnify and hold harmless the city, its officers, employees, agents and assigns from and against any and all actions, claims, liabilities, demands or assertions of liability, causes of action, losses, costs and expenses including, but not limited to, reasonable attorney's fees, involving or relating to any harm, injury or damage, suffered or sustained which in any manner may arise or be alleged to have arisen, or resulted or alleged to have resulted from the movement of the building or structure. (Code 1982, § 15.20.050; Ord. No. 1631, § 17, 4-4-2005) Sec. 10.03.050. Same--Bond or cash deposit required119. A. Bond. An applicant for a buildinghouse mover's license shall file with the building division a bond of $2,000.00, conditioned that the applicant will in good faith perform all work required by this article and other applicable city codes, and shall release, defend, indemnify and hold harmless the city, its officers, employees, agents and assigns from and against any and all actions, claims, liabilities, demands or assertions of liability, causes of action, losses, costs and expenses including, but not limited to, reasonable attorney's fees, involving or relating to any harm, injury or damage, suffered or sustained which in any manner may arise or be alleged to have arisen, or resulted or alleged to have resulted from the work authorized to be done pursuant to this article. This bond must be filed with the building division and must be approved by the city attorney or designee. B. Cash deposit in lieu of bond. Any person filing an application hereunder may, in lieu of the bond required in subsection A of this section, file with the building division a cash deposit in the sum of 20 times the permit fee as an indemnity for any damage which the city may sustain by reason of damage or injury to any highway, street, or alley, sidewalk, fire hydrant or other property of the city, which may be caused by or be incidental to the removal of any building or structure over, along or across any street in the city and to indemnify the city against any claim of damages to persons or private property, and to satisfy any claims by private individuals arising out of, caused by or incidental to the moving of any building or structure over, along or across any street in the city. In no case is the cash deposit herein required to be more than $2,000.00. (Code 1982, § 15.20.060; Ord. No. 1631, § 18, 4-4-2005) Sec. 10.03.060. Moving permit--Required. No building or structure shall be moved, removed or relocated within, without or into the city without first having obtained a moving permit from the building division. (Code 1982, § 15.20.070; Ord. No. 1631, § 19, 4-4-2005) 118 Wouldn’t “building mover” be more accurate? Yes. Change. 119 Adopt amount by resolution? Keep for now. PROOFS Page 202 of 977 Sec. 10.03.070. Same--Application. A. Any person, firm or corporation seeking issuance of a permit under this article shall file an application for such permit with the building division. B. All applications for moving, removing or relocating of any buildings or structures in the city shall be made to the building division in writing upon forms furnished by the building division, and shall set forth the following information: 1. Address of present location; 2. Address of new location; 3. Type of construction (frame, masonry, masonry veneer, etc.); 4. Length, width and height of building or structure; 5. Specific route over which the building or structure is to be moved including identification of any hazards along the route and description of actions to be taken to address the hazard; 6. Type of occupancy (dwelling, garage, office, etc.) for both old and new location; 7. Proposed moving date and time of day; 8. Any additional information which the building official or designee finds necessary to make a fair determination of whether a permit should be issued. (Code 1982, § 15.20.080; Ord. No. 1631, § 20, 4-4-2005) Sec. 10.03.080. Same--Contents. The permit required by this article shall state the name of the person, firm or corporation authorized to move the structure, shall describe the location from which and the location to which the structure is to be moved, and the route to be followed. (Code 1982, § 15.20.090; Ord. No. 1631, § 21, 4-4-2005) Sec. 10.03.090. Same--Issuance authorized when. If the applicant for a permit under this article is qualified and has the license, insurance and bond required elsewhere in this code and, in the judgment of the building official or designee, the building or structure can be moved as contemplated, the building division shall issue a permit for the moving, except as provided in section 10.03.110. (Code 1982, § 15.20.100; Ord. No. 1631, § 22, 4-4-2005) Sec. 10.03.100. Same--Fee120. A. The fee for a moving permit shall be $86.00 per hour, or prorated portion thereof, necessary for the building official or designee to conduct an inspection. Additional costs, including mileage for travel outside the city limits, may be assessed. B. The base fee in subsection A of this section shall be modified in accordance with the following: 1. If the moving distance is one-quarter mile or less, the fee shall be 25 percent of the base as determined in subsection A of this section; 2. If the moving distance if over one-quarter mile but not more than one-half mile, the fee shall be 50 percent of the base as determined in subsection A of this section; 120 Adopt fee by resolution? Keep as is for now. PROOFS Page 203 of 977 3. If the moving distance is over one-half mile but not more than three-quarters of a mile, the fee shall be 75 percent of the base as determined in subsection A of this section; 4. If the moving distance is more than three-quarters of a mile, the fee shall be 100 percent of the base as determined in subsection A of this section. C. If the building or structure to be relocated presently lies outside the city limits, the applicant shall pay a mileage fee of ten cents per mile for each mile actually and necessarily traveled by the building official to make such inspection. Such fee shall be paid in advance, and shall be in addition to all other fees required by this article. (Code 1982, § 15.20.110; Ord. No. 1631, § 23, 4-4-2005) Sec. 10.03.110. Same--Issuance restrictions and moving conditions. A. The following restrictions and conditions shall be observed before the issuance of a permit as required by this article: 1. No permit shall be issued to any person, firm or corporation to move or relocate any building or structure upon another building site unless such use, building or proposed conversion thereof conforms to chapter 38 (zoning), section 10.02.030 (the International Building Code), and all other pertinent portions of this Code. 2. No permit shall be issued to any person, firm or corporation to move, remove or locate any building or structure which is: a. So constructed or in such condition as to be dangerous or unsafe; b. Infested with pests or is otherwise unsanitary; c. Or, if a dwelling or habitation, is unfit for human habitation; d. Or is so dilapidated, defective or in such a condition of deterioration or disrepair that its relocation at the proposed site would create a safety or health hazard, or would cause substantial damage or material detriment to the property in the immediate vicinity of the proposed site. 3. Every application shall be accompanied by the written consent of the deputy police chief and deputy fire chief - operations assistant director of public safety - patrol division and assistant director of public safety - fire operations,121 who shall be notified as to the route to be taken and the date of the move. 4. The building division shall specify in the permit the route to be taken in the moving of a building or structure, such means to be used to prevent the street pavement from being subjected to abnormal stresses as may be deemed necessary by the city engineer, and the limit of time which such building or structure shall be upon the streets or alleys. 5. No circuit or box of the city fire alarm shall be disturbed in any manner except with the permission of the deputy fire chief - operations assistant director of public safety - fire operations.122 121 Should this be changed to "assistant chiefs of the police and fire departments"? Please change to: “…. with the written consent of the deputy police chief and deputy fire chief - operations.” 122 Change to "assistant chief of the fire department"? Please change to “deputy fire chief - operations.” PROOFS Page 204 of 977 6. No building or structure which is being moved upon or over any street, alley or property of the city shall be occupied as living quarters while such building or structure is in transit. 7. No permit as required by this article shall be issued unless the applicant demonstrates that the applicant has adequate machinery, appliances and equipment to safely complete the proposed move. (Code 1982, § 15.20.120; Ord. No. 1631, § 24, 4-4-2005) Sec. 10.03.120. Same--Responsibilities of permit holders. A. Every permittee under this article shall: 1. Move a building only over streets designated for such use in the written permit; 2. Notify the building official or designee in writing of a desired change in moving date and hours as proposed in the application; 3. Notify the building official or designee in writing of any and all damage done to property belonging to the city within 24 hours after the damage or injury has occurred; 4. Cause warning lights to be displayed during the hours of darkness on every side of the building, while standing on a street, in such manner as to warn the public of the obstruction, and shall at all times erect and maintain barricades across the streets in such manner as to protect the public from damage or injury by reason of the moving or removal of the building; 5. Remove the building from the city streets after four days of such occupancy, unless an extension is granted by the chief building official director of public safety or designee;123 6. Remove all rubbish and materials and fill all excavations to existing grade at the original building site so that the premises are left in a safe and sanitary condition; 7. Properly disconnect all utilities, plug the sanitary sewer with a concrete plug, and have the water department disconnect the water service. (Code 1982, § 15.20.130; Ord. No. 1631, § 25, 4-4-2005) Sec. 10.03.130. Same--Revocation conditions. The building official or designee is authorized and empowered to revoke any permit granted under the terms of this article if it becomes known to the building official that the permittee is in any manner failing to comply with the terms of this article, or when, in the opinion of the building official or designee, public convenience and safety require such revocation. (Code 1982, § 15.20.140; Ord. No. 1631, § 26, 4-4-2005) ARTICLE 4. DEMOLITION CODE Sec. 10.04.010. Title for citation. This article shall be known as the "Demolition Code," may be cited as such, and will be referred to herein as "this code article." (Code 1982, § 15.28.010; Ord. No. 1631, § 27(15.28.010), 4-4-2005) 123 Is "director of public safety" correct here? Please change to "chief building official." PROOFS Page 205 of 977 Sec. 10.04.020. Purpose and scope of provisions. The purpose of this article is to provide minimum standards to safeguard life, health, property and public welfare by regulating and controlling the methods and procedures for demolishing and disposing of buildings and structures. (Code 1982, § 15.28.020; Ord. No. 1631, § 27(15.28.020), 4-4-2005) 15.28.030. Definitions and interpretation of language124. __ For the purpose of this code, certain terms, phrases, words and their derivations shall be construed as specified in this section. Words used in the masculine gender include the feminine, and the feminine the masculine. __ "Building Official" means the officer or designee charged by the director of public safety with the administration and enforcement of this code. __ The words "municipality" or "city," whenever used in the code adopted in this chapter, means the city of Bozeman. (Code 1982, § 15.28.040; Ord. No. 1631, § 27(15.28.030), 4-4-2005) Sec. 10.04.030. Permit--License and insurance required. A. Any person, firm or corporation who engages in the business of building demolition within the corporate city limits shall first obtain a demolition permit from the building official. At the time of application for the permit, the applicant shall present proof of a valid city business license. B. Any person, firm or corporation engaging in the business of building demolition within the corporate city limits shall first provide proof of general liability insurance in an amount acceptable to the city; and which includes the city as an additional insured. C. A copy of the insurance policy shall be filed with the building division and shall release, defend, indemnify and hold harmless the city, its officers, employees, agents and assigns from and against any and all actions, claims, liabilities, demands or assertions of liability, causes of action, losses, costs and expenses including, but not limited to, reasonable attorney's fees, involving or relating to any harm, injury or damage, suffered or sustained which in any manner may arise or be alleged to have arisen, or resulted or alleged to have resulted from the movement of the building or structure. (Code 1982, § 15.28.040; Ord. No. 1631, § 27(15.28.040), 4-4-2005) Sec. 10.04.040. Same125--Issuance approved when. If the applicant for a permit under this article is qualified and has the license and insurance, and has supplied the bond or cash equivalent as required elsewhere in this code, and in the 124 Deleted as covered in chapter 1. Ok. 125 When there are more than two or three of these "Same" catchlines, we recommend splitting those sections off into their own division, for clarity. Would you like to do that? This theme exists throughout other articles within this chapter. Please consider a consistent approach and provide a recommendation. If MCC suggests using divisions for these types of code sections, for this article, please categorize the “permit” provisions into two divisions: (i) general; and (ii) permit. The general division should include .010, .020 and .110. The permit division should include .030 through .100. Update: After further discussion, the city has decided to leave the proof as is. PROOFS Page 206 of 977 judgment of the building official, the building or structure can be demolished as contemplated, the building division shall issue a permit for the demolition except as provided in section 10.04.050. (Code 1982, § 15.28.050; Ord. No. 1631, § 27(15.28.050), 4-4-2005) Sec. 10.04.050. Same--Issuance restrictions. A. The following restrictions and conditions shall be observed before the issuance of a permit as required by this article: 1. No permit shall be issued to any person, firm or corporation to demolish any building or structure while any part thereof is occupied. 2. No permit as required by this article shall be issued unless the applicant demonstrates that the applicant has adequate machinery, appliances, and equipment to safely complete the proposed demolition and disposal. (Code 1982, § 15.28.060; Ord. No. 1631, § 27(15.28.060), 4-4-2005) Sec. 10.04.060. Same--Fee schedule. The applicant for a permit under this article shall pay a fee of $86.00 to the building division for the issuance of a demolition permit at the time of application. (Code 1982, § 15.28.070; Ord. No. 1631, § 27(15.28.070), 4-4-2005) Sec. 10.04.070. Same--Responsibilities of permit holder. A. Every permittee under the article shall: 1. Remove all rubbish and waste materials and fill all excavations to existing grade at the site so that the premises are left in a safe and sanitary condition; 2. Properly disconnect all utilities, plug the sanitary sewer with a concrete plug, and have the water department disconnect the water service; 3. Notify the building official in writing of any and all damages to public or other property or persons within 24 hours after the damage or injury has occurred. (Code 1982, § 15.28.090; Ord. No. 1631, § 27(15.28.090), 4-4-2005) Sec. 10.04.080. Same--Performance bond requirements126. Every person, firm or corporation applying for a demolition permit shall file with the city a bond in the sum of $2,000.00, conditioned that the person, firm or corporation will in good faith perform all work required by the code and other applicable codes of the city, and shall release, defend, indemnify and hold harmless the city, its officers, employees, agents and assigns from and against any and all actions, claims, liabilities, demands or assertions of liability, causes of action, losses, costs and expenses including, but not limited to, reasonable attorney's fees, involving or relating to any harm, injury or damage, suffered or sustained which in any manner may arise or be alleged to have arisen, or resulted or alleged to have resulted from the work authorized to be done pursuant to this article. Such bonds must be filed with the building division. (Code 1982, § 15.28.100; Ord. No. 1631, § 27(15.28.100), 4-4-2005) Sec. 10.04.090. Same--Surety bond required when127. A. Required. Every person, firm or corporation applying for a demolition permit shall file with the building division a surety bond, in the sum of 125 percent of the contract price issued 126 Adopt amount by resolution? Keep for now. 127 Adopt amount by resolution? Keep for now. PROOFS Page 207 of 977 by an insurance company authorized to do business in the state, to insure that all work is completed in a proper and safe manner and in accordance with all the provisions of this article. In no case shall the surety bond be less than $5,000.00. B. Exception. The provisions of this section shall not apply to single-family residences, garages, out-buildings, or customary accessory buildings or structures. (Code 1982, § 15.28.110; Ord. No. 1631, § 27(15.28.110), 4-4-2005) Sec. 10.04.100. Same--Revocation conditions. The building official is authorized and empowered to revoke any permit granted under the terms of this article if it becomes known to him said building official that the permittee is in any manner failing to comply with the terms of this article, or when, in the opinion of the building official, public convenience and safety require such revocation. (Code 1982, § 15.28.130; Ord. No. 1631, § 27(15.28.130), 4-4-2005) Sec. 10.04.110. Failure to complete demolition; work performed by city; costs. If the permittee fails or refuses to complete the demolition authorized by this article within a reasonable period of time, and, after ten days' written notice having been given to the permittee and owner, the city may proceed to have the necessary work completed, and may recover the expense of such work from the surety bond required to be posted by section 10.04.090. The permittee shall be liable for any amounts not covered by the surety bond. (Code 1982, § 15.28.120; Ord. No. 1631, § 27(15.28.120), 4-4-2005) SIGN CODE*128 *State law reference—Information signs, MCA 60-5-501 et seq. 15.32.010. Document adopted by reference--copies on file. A certain document, three copies of which are on file in the office of the building official of the city of Bozeman, being marked and designated as "Uniform Sign Code, 1979 Edition, as Published by the International Conference of Building Officials," on file in the office of the building official, is referred to, adopted, and made a part hereof as if fully set out in this chapter, save and except such portions thereof as have been deleted, modified or amended in the aforementioned official copies. (Code 1982, § 15.32.010; Ord. No. 1106 § 1, 1982) 15.32.020. Uniform sign code--additions and deletions. __ Chapter 1. Add the following paragraphs to section 103: __ License required. Any person or firm who engages in the business of fabrication, installation, alteration, maintenance or repair of signs in the city of Bozeman is required to have a City Contractor's license as required by the license code of the city of Bozeman. __ Bond. The applicant for a sign contractor's license shall file with the city, a bond in the sum of Two Thousand Dollars ($2,000) conditioned that he will in good faith perform all things required of him by the laws of the city. Said bond must be filed in the office of the building official for approval. __ Chapter 3. __ Delete 303-3. 128 Are you enforcing any of this chapter now? See Code ch. 18.52. Delete chapter. PROOFS Page 208 of 977 __ Add the following section as follows: Fee Schedule. Section 307. (a) Sign area not exceeding 35 square feet... $15.00 (b) Sign area exceeds 35 square feet but not exceeding 100 square feet... 25.00 (c) Sign area exceeds 100 square feet but does not exceed 200 square feet... 35.00 (d) Sign area exceeds 200 square feet but does not exceed 300 square feet... 40.00 Signs larger than 300 square feet are not permitted. (e) Signs or banners as described in chapter 14, Section 1402-C. Plus removal deposit of $100... 10.00 (f) Mobile or portable signs as described in chapter 14, Section 1403 (monthly fee)... 15.00 __ Chapter 4. Change Section 402(c) to read as follows: Ground signs may be constructed of any material meeting the requirements of this Code. Exception: Small (not to exceed 30 square feet nor more than six feet in any dimension and no more than six feet high) directory type ground signs shall be constructed of heavy timber -- two inch nominal thickness lumber -- if erected on private property and in such a manner so as to maintain the proper sign distance required at intersections by the Zoning Code of the city of Bozeman. Combination signs, roof signs, wall signs, projecting signs and signs of marquees shall be constructed of noncombustible materials, except as provided in Subsection (d) of this section. No combustible materials other than approved plastics shall be used in the construction of electric signs. Exception: Small flush mounted wall signs and projecting signs, not exceeding 15 square feet, constructed of heavy timber -- two inch nominal thickness lumber -- may be approved by the city manager, or his designee, upon application showing: __ Size of the sign, __ Size and kind of material to be used, __ Location of sign on the building, and PROOFS Page 209 of 977 __ Evidence that such combustible sign will not significantly contribute to the spread of conflagration. __ Chapter 6. Add the following section as follows: Height. Section 604. No pole sign shall be erected to a height exceeding forty feet (40') above the ground, except, however, that pole signs within an area lying not more than one thousand feet (1,000') at right angles to the centerline of Interstate 90 may be erected to a maximum of sixty feet (60'). __ Chapter 13. Add the following section as follows: Limitations. Section 1303. __ There shall be no flashing of all elements simultaneously, or any flashing effect which could be misconstrued as a traffic control device. __ Revolving beacon lighted signs or beacon lights shall be prohibited. __ All electric signs shall be not less than ten feet above grade at the bottom of the sign with the following exceptions: __ Signs described in chapter 14, Section 1403. __ Enclosed plastic faced fluorescent signs that are on a GFI (ground fault interrupter) electrical circuit and located on private property shall be not less than three feet above grade at the bottom of the sign. No portion of such sign shall project over or onto public property, public right-of-way or private street as approved by the city commission. __ Chapter 14. Add the following sections. __ Section 1402-C. Clearance. Cloth signs (banners) may extend across a public street only by permission of the city manager, or his designated representative, and shall be subject to all related laws and ordinances. Temporary signs, other than cloth, when 8 feet or more above the ground, may project not more than 6 inches over public property or beyond the legal setback line. __ Section 1402-D. Removal. A deposit of $100 shall be made with the building official at the time the permit is issued. Said deposit will be refunded to the permittee if the temporary sign or banner is removed within one week from the last day of the function for which the sign or banner was approved. If the banner is not removed within one week the city of Bozeman will remove the banner and the $100 deposit is therefore forfeited. __ Section 1402-E. Commercial Advertising. Cloth signs (banners) extending across a public street, as provided in section 1402-C above, shall contain no commercial logos or advertising of any kind. __ Section 1402-F. Use of City Equipment. City equipment shall not be used to erect or remove banners except as provided in section 1402-D above or with special permission of the city manager. __ Section 1403. Mobile (Trailer Type) or Portable Signs. PROOFS Page 210 of 977 Mobile (trailer-type) or Portable Signs that are commonly used as portable advertising displays that are located so as to maintain the proper sight distance required at intersections by the Zoning Code of the city of Bozeman may be permitted providing they are in conformance with the following requirements. __ Owners or lesses of the above-type signs, whether new or existing, must obtain a permit for said sign within 30 days of the effective date of this ordinance. Permits shall be obtained between the first and tenth of each month. Signs for which permits have not been issued by the tenth of each month shall be in violation of this chapter. __ The permit shall be valid for no more than one month from date of issue. Said sign may remain in the same location; however, a new permit shall be obtained every month thereafter. __ Only one sign of this type shall be allowed per place of business or single property. __ Signs that are to be electrically connected must be in conformance with the Electrical Code as adopted by the city of Bozeman. __ Signs will not be permitted on public property. __ Signs larger than seven feet high by 12 feet long (84 sq. ft.) will not be permitted. __ Signs are to be placed at grade levels and may not be located on roofs, portions of buildings, vehicles or areas similar to those listed. __ Signs located within 150 feet of residential areas may not be illuminated from 11:00 p.m. to 6:30 a.m. The number of feet occupied by public streets, roads, alleys and other public ways shall be excluded in determining the 150 foot requirements. (Code 1982, § 15.32.020; Ord. No. 1172 § 1, 1985; Ord. No. 1170 § 1, 1984) 15.40.010. Fire zones created--boundaries described. 129 For the purpose of controlling and regulating the erection of buildings and other structures within the corporate city limits and promoting and protecting the safety of persons and property within the city from the hazard of fire, the entire city of Bozeman within its corporate limits is created and established as a fire district divided into two zones, to be known and designated as "Fire Zone Number One" and "Fire Zone Number Three," which are likewise created and established, bounded and described as follows: __ The boundaries of Fire Zone Number One under this chapter are as follows: Part 1 Beginning at the iron pipe marking the center of section 12, Township 2 South, Range 5 East, said point also being the intersection of the centerlines of West Babcock Street and South Eleventh Avenue; thence westerly along the east-west one-quarter section line of said Section 12, said line also being the centerline of West Babcock Street, to the point of intersection of said centerline with the centerline of West Main Street; thence easterly along the centerline of West Main Street to the intersection of said centerline and the centerline of North Twentieth Avenue; thence 129 Are these still used for purposes of the building code? Delete. PROOFS Page 211 of 977 northerly along the centerline of North Twentieth to a point 323.12 feet south of the centerline of West Beall Street; thence easterly parallel to and 323.12 feet distant southerly from the centerline of West Beall Street, to the section line common to section 11 and 12; thence continuing easterly to the northwesterly corner of Block 1, Kirk Second Subdivision; thence easterly along the north line of said Block 1 to the southwest corner of Block 3 of said subdivision; thence easterly along the southerly line of said Block 3 to the northeast corner of said Block 3; thence easterly a distance of 30 feet to the centerline of North 15th Avenue; thence southerly along the centerline of North 15th Avenue to the point of intersection of said centerline and the centerline of West Main Street; thence easterly along the centerline of West Main Street to the north-south one-quarter section line of section 12; thence northerly along said one-quarter section line to a point, said point being the point of intersection of said one-quarter section line and the centerline of West Mendenhall Street extended; thence easterly along the centerline of West Mendenhall to the point of intersection of said centerline with the centerline of North Eighth Avenue; thence northerly along the centerline of North Eighth Avenue to the point of intersection of said centerline with the centerline of West Villard Street; thence easterly along the centerline of West Villard Street to a point, said point being the point of intersection of the centerline of West Villard Street and the east line extended of Tract 13 of Durston Subdivision; thence northerly along said east line and east line extended to the point of intersection of said east line extended and the centerline of Durston Road; thence easterly along the centerline of Durston Road to the point of intersection of said centerline with the centerline extended of the alley of Block 1, Durston's Second Subdivision, said point of intersection being 240 feet distant westerly from the centerline of North Seventh Avenue; thence northerly parallel to and 240 feet distant westerly from the centerline of North Seventh Avenue to the point of intersection with the east-west one-quarter section line of section 1; thence westerly along the said one-quarter section line a distance of 160 feet to a point 350 feet distant westerly from the centerline of North Seventh Avenue, thence north 1 degree 16 minutes 30 seconds east a distance of 325 feet to a point; thence north 88 degrees zero minutes west a distance of 75 feet to a point; thence north 1 degree 16 minutes 30 seconds east a distance of 300.84 feet to a point; thence north 88 degrees zero minutes west a distance of 107.6 feet to a point; thence north 51 degrees 6 minutes west a distance of 356.98 feet to a point; thence north 38 degrees 50 minutes 34 seconds east along the northwesterly property line of the Holiday Inn to a point on the centerline of Baxter Lane, a distance of 555 feet; thence southeasterly on and along the centerline of Baxter Lane to the intersection of the centerline of North Seventh Avenue; thence easterly along the centerline of Baxter Road a distance of 217 feet to the point of intersection with the east line of Westlake's Annexation; thence southerly parallel to and 217 feet distant easterly from the centerline of North Seventh Avenue to the southeast corner of Westlakes Second Subdivision; thence across West Hemlock Street to the centerline of the north-south alley in Block 4, North Seventh Addition; thence southerly parallel to and 247 feet distant easterly from the centerline of North Seventh Avenue to the north line of Shonkwilers Addition; thence easterly along the said north line of Shonkwilers Addition to the centerline of vacated North Sixth Avenue; thence southerly along said centerline to the point of intersection of said centerline and the centerline of West Short Street; thence westerly along the centerline of West Short Street to the point of intersection of said centerline and the centerline of the alley of PROOFS Page 212 of 977 Block 3, Violett Addition; thence southerly along said alley centerline to the point of intersection of said alley centerline and the centerline of West Villard Street; thence easterly along the centerline of West Villard Street to the point of intersection of the centerline of West Villard Street and the centerline of North Fifth Avenue; thence southerly along the centerline of North Fifth Avenue to the point of intersection of the centerline of North Fifth Avenue and the centerline of West Beall Street; thence westerly along the centerline of West Beall Street to the point of intersection of said centerline and the west lot line extended of Lot 28, Block E, Tracy's 3rd Addition; thence southerly along the west lot line of Lots 28, 24 and 10 of Block E of Tracy's 3rd Addition, across West Lamme Street, continuing southerly along the west lot line of Lot 33, Block E, Tracy's 2nd Addition and said lot line extended to the centerline of the alley of Block E, Tracy's 2nd Addition; thence easterly along the centerline of said alley to the point of intersection of said centerline and the centerline of North Third Avenue; thence northerly along the centerline of North Third Avenue to the point of intersection of said centerline and the centerline of West Lamme Street; thence easterly along the centerline of West Lamme Street to the point of intersection of said centerline and the centerline of North Grand Avenue; thence northerly along the centerline of North Grand Avenue to the point of intersection of said centerline and the north lot line extended of Lot 18, Block 4, Bealls 3rd Addition; thence easterly along said lot line extended and the north lot line and lot line extended of Lot 7, Block 4, Bealls 3rd Addition to the centerline of North Willson Avenue; thence northerly along the centerline of North Willson Avenue to the point of intersection of said centerline and the centerline of West Villard Street; thence easterly along the centerline of West Villard Street to the point of intersection of said centerline and the centerline of North Tracy Avenue; thence southerly along the centerline of North Tracy Avenue to the point of intersection of said centerline and the centerline of East Lamme Street; thence easterly along the centerline of East Lamme Street to the point of intersection of said centerline and the centerline of North Rouse Avenue; thence southerly along the centerline of North Rouse Avenue to the point of intersection of said centerline and the centerline of East Mendenh all Street; thence easterly along the centerline of East Mendenhall Street to the point of intersection of said centerline and the centerline of North Broadway Avenue; thence southerly along the centerline of North Broadway Avenue to a point 150 feet northerly from the centerline of East Main Street; thence easterly parallel to and 150 feet distant northerly from the centerline of East Main Street to the east line of the Northern Pacific Addition; thence southerly along said east line to the point of intersection of the north line extended of the vacated alley of Block 16, Northern Pacific Addition; thence westerly along said north line extended to the west line of vacated Switzler Avenue; thence northerly along said west line to the north line of the Marwyn Rearrangement; thence westerly along said north line to the centerline of vacated South Alysworth Avenue; thence northerly along the centerline of vacated South Alysworth Avenue to the point of intersection of said centerline with the centerline of the vacated alley of Block 23, Northern Pacific Addition; thence westerly along the centerlines of the alley of Blocks 22 and 23 of Northern Pacific Addition to the point of intersection of said centerline with the centerline of South Cypress Avenue; thence northerly along the centerline of Cypress Avenue to the point of intersection of said centerline and the centerline of East Main Street; thence westerly along the centerline of East Main Street a distance of 510 feet more or less to a point; thence southerly parallel to and 207 feet distant westerly from the centerline of Buttonwood Avenue a distance of 355 feet more or less to the centerline of East Babcock Street extended; PROOFS Page 213 of 977 thence westerly along the centerline of East Babcock Street and said centerline extended to the point of intersection of said centerline and the centerline of the north-south alley of Block A, Harpers Addition; thence southerly along the centerline of said alley to the point of intersection of the centerline of the said alley and the centerline of the east-west alley of said Block A; thence westerly along the centerline of said east-west alley and said centerline extended parallel to and 180 feet distant southerly from the centerline of East Babcock Street to a point in Block B, Black's Addition, said point being 151.5 feet west of the east block line and 150 feet south of the north block line of said Block B; thence southerly parallel to and 151.5 feet distant westerly from said east block line to the centerline of East Olive Street; thence westerly along the centerline of East and West Olive Streets to the point of intersection of the centerline of West Olive Street and the centerline of South Fourth Avenue; thence northerly along the centerline of South Fourth Avenue to the point of intersection of said centerline and the centerline of West Babcock Street; thence westerly along the centerline of West Babcock Street to the point of intersection of said centerline and the centerline of South Fifth Avenue; thence northerly along the centerline of South Fifth Avenue to the point of intersection of said centerline and the centerline of the alley in Block E, Story's Addition; thence westerly along the centerline of said alley to the point of intersection of said alley centerline and the centerline of South Seventh Avenue; thence southerly along the centerline of South Seventh Avenue to the point of intersection of said centerline and the centerline of West Babcock Street; thence westerly along the centerline of West Babcock Street to the point of intersection of said centerline and the centerline of South Eighth Avenue; thence northerly along the centerline of South Eighth Avenue to the point of intersection of said centerline and the centerline of the alley of Block F, Story's Addition; said point also being 168 feet north of the centerline of West Babcock Street; thence westerly parallel to and 168 feet distant northerly from the centerline of West Babcock Street to the north-south one-quarter section line of section 12; thence southerly along said one-quarter section line to the center of section 12, said point being the point of beginning. Part 2 Beginning at the south one-quarter corner of section 12, Township 2 South, Range 5 East, said corner also being the point of intersection of the centerline of South Eleventh Avenue and the centerline of West College Street; thence westerly along the centerline of West College Street a distance of 180 feet; thence northerly parallel to and 180 feet distant westerly from the centerline of South Eleventh Avenue a distance of 290.4 feet; thence easterly parallel to and 290.4 feet distant northerly from the centerline of West College Street a distance of 150 feet to the east line of Block 24 of the West Side Addition; thence southeasterly across South Eleventh Avenue to the northwest corner of Lot 21, Block 52 West Park Addition; thence easterly along the north lot lines of Lots 21 and 8, Block 52; thence continuing easterly across South Tenth Avenue to the northwest corner of Lot 21, Block 51 West Park Addition; thence easterly along the north lot lines of Lots 21 and 8, Block 51; thence continuing easterly across South Ninth Avenue to the northwest corner of Lots 21, Block 50, West Park Addition; thence easterly along the north lines of Lots 21 and 8 of Block 50; thence continuing easterly to the centerline of South Eighth Avenue; thence northerly along the centerline of Eighth Avenue to the point of intersection of said centerline and the centerline of West Alderson Street; thence easterly along the centerline of West Alderson Street to the point of intersection of said centerline with the centerline of the alley of Block 49, West Park PROOFS Page 214 of 977 Addition; thence southerly along the centerline of the alley to the point of intersection of said alley centerline to the centerline of West College Street; thence westerly along the centerline of West College Street to the point of intersection of said centerline and the centerline of South Eleventh Avenue; thence southerly along the centerline of South Eleventh Avenue a distance of 30 feet to the south one- quarter corner of section 12 said point being the point of beginning. __ The boundaries of Fire Zone Number Three under this section are as follows: All of the land within the city limits of Bozeman which are not included within the boundaries of Fire Zone Number One. (Code 1982, § 15.40.010) ARTICLE 5. ADOPTED UNIFORM SAFETY CODE INSPECTIONS FOR BUSINESSES130 Sec. 10.05.010. Inspection fees; exemptions. A. Every business and organization located in a building or office in the jurisdictional limits of the city shall pay to the city a reasonable inspection fee to ensure that the building or office complies with the adopteduniform safety codes. B. In the enforcement of the adopteduniform safety codes, the city commission by resolution shall periodically establish a reasonable inspection fee taking into account the actual costs to the city. C. Exemptions. Those businesses and organizations with a current Bozeman business license shall not be required to pay any additional adopteduniform safety code inspection fee as the licensing fee included an amount for the safety code inspection. (Code 1982, § 5.64.010; Ord. No. 1292, § 1, 1989) Sec. 10.05.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Buildings and offices" means all buildings, structures, rooms, offices, or portions thereof wherein a business or organization is located and which may be accessible to the public, employees, or members or located in such close proximity to other buildings, structures, rooms, offices, or portions thereof so as to constitute a public threat in the event of an adopteda uniform safety code violation. 2. "Business or organization" means any occupation, trade, profession, commercial activity, social activity, fraternal activity or religious activity located or meeting regularly in buildings or offices; includes sole proprietorships, partnerships, corporations, nonprofit corporations, religious corporations, social organizations and fraternal organizations. 3. 131"AdoptedUniform Safety Codes" means the most recent version of the following codes adopted by the city: a. InternationalUniform Fire Code; b. InternationalUniform Building Code; 130 It seems like this chapter would be better placed in title 15. Yes. Move. 131 The Uniform Codes have been replaced by the International Codes. Note changes. PROOFS Page 215 of 977 __ Uniform Abatement of Dangerous Buildings Code; c. Uniform Plumbing Code; d. National Electrical Code; e. InternationalUniform Mechanical Code; f. International ResidentialCABO One and Two Family Dwelling Code. __ Uniform Housing Code; __ Uniform Sign Code. (Code 1982, § 5.64.020; Ord. No. 1292 § 2, 1989) ARTICLE 6. EXCAVATIONS Sec. 10.06.010. Permit required for all excavations. It is unlawful for any person or persons, corporation and/or association to excavate on any lot, lots or parcels of ground within the corporate limits of the city without having first applied for and received a written permit to do so, issued and signed by the chief building official director of public safety.132 (Code 1982, § 15.44.010) Sec. 10.06.020. Excavation without permit deemed nuisance. The excavation on any lot or parcel of ground within the city for which no permit has been procured as hereinafter provided is defined and declared to be a nuisance. (Code 1982, § 15.44.020) Sec. 10.06.030. Permissible excavations described; permit issuance conditions. The chief building official director of public safety shall have no authority to issue a permit for any excavation below the grade established for sidewalks abutting any lot, lots or parcel of land within the area of any platted subdivision of the city, but this provision shall not be construed to prevent the chief building official director of public safety and/or building inspector from granting a permit for such excavation in, and as a part of, a building and/or improvement permit for a basement, foundation or other excavation incidental to and a part of any building or other bona fide improvement to be made or erected upon any such lot, lots or parcel, of land within a platted subdivision. As to land within the corporate limits of the city not included within a platted subdivision, no excavation shall be made without a permit as herein provided, but the granting or withholding of such permit shall be within the sound and reasonable discretion of the chief building official director of public safety, subject to review by the city commission at any regular meeting thereof. (Code 1982, § 15.44.030) Sec. 10.06.040. Violation; penalty133. Any person, persons, corporation and/or association and/or group of persons guilty of a violation of this article shall be fined in any sum not exceeding $300.00, and the person and/or persons directly engaged in making such unpermitted excavation and the person, persons, corporation and/or association under and by whose direction and/or authority such unpermitted 132 Is this title OK? It does not designate police or fire. It is used throughout this chapter. Change “director of public safety” to “chief building official.” 133 Use the general penalty instead? No. Keep as is. PROOFS Page 216 of 977 excavation is made shall each and severally be deemed guilty of violating this article and subject to the penalty herein provided. If such fine is not paid, the person upon whom it is imposed shall serve it out in the city or county jail at the rate of one day for each $2.00 thereof. (Code 1982, § 15.44.040) ARTICLE 7. BUILDING NUMBERS Sec. 10.07.010. Purpose of article provisions. In order to establish a uniform system of numbering houses, private, public or business, within the city, all houses, private, public or business, fronting on streets, avenues and public highways within the city shall be numbered as provided in this article. (Code 1982, § 12.08.010) Sec. 10.07.020. Official map adopted. The map or plat heretofore prepared by the city engineer under the date of October 1919, designated as "Map of Bozeman, Montana, Showing House Numbering System," is hereby referred to and made a part of this article, and shall govern in all matters relating to the numbering of houses, private, public and business, as provided in this article. (Code 1982, § 12.08.020) Sec. 10.07.030. Numbers assigned before 1920. The numbers assigned before 1920 to houses, private, public or business, except as provided in this article, shall remain the numbers of such houses, respectively, until otherwise changed by the commission. (Code 1982, § 12.08.030) Sec. 10.07.040. Numbering buildings required. It is hereby made the duty of the owner, agent or person in possession of every house, private, public or business, in the city, to number it as provided in this article. (Code 1982, § 12.08.040) Sec. 10.07.050. City engineer to assign numbers. The city engineer shall assign to each house, private, public or business, in the city, its proper number, and upon application shall deliver, free of charge, to the owner or occupant thereof, a certificate designating the number. (Code 1982, § 12.08.050) Sec. 10.07.060. Numbering system described; base lines. A. All streets and avenues running north and south shall be numbered from Main Street as a base or division line and shall be numbered north and south therefrom. All streets running east and west shall be numbered from Tracy Avenue as a base or division line and shall be numbered east and west therefrom. The initial number in each instance shall be zero. B. One hundred numbers shall be assigned to the houses, private, public or business, on any street or avenue in any block. On both sides of Main, Babcock and Mendenhall Streets, between Wallace Avenue and Third Avenue, one number shall be given for every 15 feet fronting on said streets. On both sides of Wallace Avenue, Church Avenue, Rouse Avenue, Bozeman Avenue, Black Avenue, Tracy Avenue, Central Avenue, Grand Avenue and Third Avenue, between Babcock Street and Mendenhall Street, one number shall be given for each 15 feet fronting thereon. On both sides of all other streets and avenues, or parts of streets and avenues, one number shall be given for each 25 feet fronting thereon. PROOFS Page 217 of 977 C. Houses, private, public or business, on the north and west sides of streets and avenues shall be given odd numbers, and houses, private, public or business, on the south and east sides of streets and avenues shall be given even numbers. D. In numbering, only full blocks shall be given one hundred numbers; blocks approximately double the ordinary frontage shall be given two hundred numbers. Across all undivided tracts of land intervening between portions laid out into blocks, the lines of all streets or avenues shall be considered to cross in regular continuation of streets in additions adjoining. (Code 1982, § 12.08.060) Sec. 10.07.070. Affixing numbers to buildings; owner or occupant responsibility. It is the duty of every owner or occupant of every house, private, public or business, and the agents of such owners of such houses upon all streets and avenues of the city to number buildings in accordance with the provisions of this article, and it is unlawful for any such owner, occupant or agent to retain or use, or permit to remain upon any such house, any other number than the number designated by this article for such house. It shall be the duty of every such owner, occupant or agent, upon notice from the city engineer or any person designated by him, to cause the official number to be placed upon every house so owned or occupied by such owner or occupant, or for which such agency may exist, such numbering to be done in the manner provided in this article within 30 days after service of such notice. (Code 1982, § 12.08.070) Sec. 10.07.080. Style and location of numbers. All numbers shall be of some metallic substance, or porcelain, or may consist of gilt lettering on the inside of a glass transom or door, and shall be distinctly legible and at least three inches high, and all such metal or porcelain figures or lettering shall be in a conspicuous place where the number can be easily seen from the middle of the street. (Code 1982, § 12.08.080) Sec. 10.07.090. Alley numbering system. Every alley running east and west shall take the number of the street south of it, and every alley running north and south shall take the name of the street or avenue east of it. All alleys shall take the same numbers as the streets or avenues from which they are named, the even numbers being on the south and east sides and the odd numbers being on the north and west sides thereof. (Code 1982, § 12.08.090) Sec. 10.07.100. Numbers procured by city. The city engineer shall, and it is the engineer's duty to arrange with some business house in the city to procure a supply of standard figures to number houses as provided in this article, and thereafter keep on hand a sufficient supply therefor, which numbers shall be furnished to owners, occupants and agents of houses at a minimum and standard price therefor. (Code 1982, § 12.08.100) 12.08.110. Violation--penalty134. Every owner or occupant, or agent of any owner of any house, private, public or business, now erected or hereinafter to be erected in the city who fails, neglects or refuses, wilfully or otherwise, to comply with the terms and provisions of this chapter, shall be guilty of a misdemeanor, and each 134 Deleted as covered by the general penalty in chapter 1. PROOFS Page 218 of 977 day's continuance of an act forbidden, or omission of a duty required, shall constitute a separate and distinct offense and be fined and punished accordingly. (Code 1982, § 12.08.110) ARTICLE 8. WORKFORCE HOUSING Sec. 10.08.010. Purpose. The purpose of this article is to enhance the public welfare by ensuring that the workforce housing needs of the city are addressed. The city commission finds that there is a critical shortage of workforce housing, making home acquisition by many city resident workers extremely difficult. The resident workforce is leaving the city in search of housing, and new employees are being deterred by the high cost of for-purchase housing. To maintain a sufficient resident workforce in all fields of employment, and to ensure the public safety and general welfare of the residents of the city, resident workforce housing needs must be addressed. It is the intent of this article to require the provision, for purchase, of workforce housing units to meet the needs of income-qualified households in the workforce and other households within the specified income range. (Ord. No. 1710, § 2(17.02.010), 7-16-2007) Sec. 10.08.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Actively marketed" includes, but is not limited to, city website listing and available print advertisement, including, but not limited to, local newspapers and other available print media. Active marketing includes continuous promotion of property concurrent with market rate homes. 2. "Affordable housing" means housing for persons earning less than 65 percent of the area's median income for rental housing and less than 100 percent of the area's annual median income for purchased housing. Further, affordable housing does not require greater than 30 percent of the household gross annual median income for housing. Annual median income is defined by the Department of Housing and Urban Development. Affordable housing is subject to the city's affordable housing policy. 3. "Area median income (AMI)," as defined by the Department of Housing and Urban Development, AMI is the median income for a family of four within a specific geographical area, such as Gallatin County. 4. "Attached single-family home (ASFH)" means a dwelling attached by one or more common walls with another dwelling. Multiple homes on a single lot can be deeded separately, such as condominiums. 5. "Banking units."- Workforce Housing Units (WHU)s can be pre-built and/or lots can be set aside for future construction of WHUs, which will count towards the required number of WHUs for a future subdivision and/or development by a particular developer and/or builder. 6. "Detached single household home (DSHH)" means a freestanding dwelling built without any shared walls. 7. "Dwelling" means a building or portion thereof, meeting the requirements of the city's adopted International Building Code and used by one household for residential purposes. Dwelling occupancy duration is typically longer than 30 continuous days. Dwellings may exist in many configurations, including single-household, two-PROOFS Page 219 of 977 household, multiple household dwellings, and group homes. Dwellings do not include hotels, motels, extended stay lodgings, or tourist homes. 8. "Household" means a person living alone or any of the following groups living together as a single nonprofit housekeeping unit and sharing common living, sleeping, cooking, and eating facilities. Any number of people related by blood, marriage, adoption, guardianship, or other duly-authorized custodial relationship: a. Not more than four unrelated people, including persons enrolled in an institution of higher learning. Two unrelated people and any children related to either of them; or b. Not more than four people who are: (1) Residents of a community residential facility as defined in 135MCA 76-2-411 et. seq., and this title article; or (2) Handicapped as defined in the Fair Housing Act, 42 USC 3602 (h). This definition does not include those persons currently illegally using or addicted to a controlled substance as defined in the Controlled Substances Act, 21 USC 802(6). c. The term "household" does not include: (1) Any society, club, fraternity, sorority, association, lodge, combine, federation, coterie, cooperative housing, or like organization; (2) Any group of individuals whose association is temporary or seasonal in nature; or (3) Any group of individuals who are in a group living arrangement as a result of criminal offenses. 9. "Housing and Urban Development (HUD)" means the federal agency responsible for setting area median income limits. 10. "Unified Development Ordinance (UDO)" means the city's code providing rules and regulations for city development. 11. "Workforce" means households earning less than 120 percent of AMI for the city or, for households larger than four, households with a current average income at or less than 120 percent AMI for a household of that size. 12. "Workforce housing plan" means each development meeting the applicability criteria defined in this section shall have a workforce housing plan under this article. The workforce housing plan shall be consistent with the provisions set forth in this article. 13. "Workforce housing program." This program is established under this article. The workforce housing program is administered by the city, the commission and/or agency directed by the commission. 14. "Workforce housing unit (WHU)" means housing for persons earning less than 120 percent of the area's median income for purchased housing. Further, workforce housing does not require greater than 30 percent of the household gross annual median income for housing. Annual median income is defined by the Department of Housing and Urban Development. 135 It is defined in MCA 76-2-411. Ok. PROOFS Page 220 of 977 (Ord. No. 1710, § 2(17.02.030), 7-16-2007) Sec. 10.08.030. Applicability. A. General. 1. A developer of a subdivision that includes residential lots, for which preliminary plat is submitted on or after August 15, 2007, and which will result in development of ten or more residential lots shall provide a lot or lots for the construction of 0.4 dwelling units per net acre of development for the workforce housing program. Multiple developments or projects by the same applicant or responsible party within any consecutive 12-month period on parcels held in contiguous ownership at the time of the initial development that in the aggregate equal or exceed ten residential lots shall be subject to this section. 2. Any site plan including residential condominiums on lots created or annexed on or after August 15, 2007, with a gross project area of more than five acres shall provide, or shall cause to be provided 0.4 dwelling units per net acre of development for the workforce housing program. Multiple site plans by the same applicant or responsible party within any consecutive 12-month period that in the aggregate exceed a gross project area of five acres shall be subject to this section. B. Project size. 1. Subdivisions with fewer than ten lots, or condominium site plans with a gross project area of five acres or less: No workforce housing requirements. 2. Subdivisions with ten or more lots, or condominium site plans on lots created or annexed on or after August 15, 2007, with a gross project area of more than five acres: 0.4 dwelling units per net acre of development in the subdivision must be dedicated to workforce housing requirements (excluding any additional dwelling units approved through a density bonus), subject to the provisions of section 10.08.050. (Ord. No. 1710, § 2(17.02.030), 7-16-2007) Sec. 10.08.040. Workforce housing plan required. The developer of a project meeting the applicability criteria defined in section 10.08.030 shall submit, prior to or concurrently with their application for preliminary plat or condominium site plan approval, an application describing their workforce housing plan in accordance with this article and other applicable ordinances. The developer's workforce housing plan must, in addition to items listed above, include a marketing plan and estimated project timeline. (Ord. No. 1710, § 2(17.02.030), 7-16-2007) Sec. 10.08.050. Compliance. A. A development meeting the applicability criteria defined in section 10.08.030 is required to provide lots and/or building areas for construction of workforce housing units (WHUs) for homeownership according to this article and may meet its obligations according to one or a combination of the methods established below. B. Workforce housing detached single household home (DSHH) lots and workforce housing attached single housing unit (ASHU) lots shall be sized according to the matrix found in section 10.08.060 and shall be priced at $12.00 per square foot in 2007 and increase annually at the lesser of four percent or the increase in the AMI for that year. Periodic review of the annual increase shall be completed by the city and shall not be greater than the lesser of four percent annually or the increase in the AMI over that time period. PROOFS Page 221 of 977 1. Density calculations. a. The required number of for sale WHUs is calculated at 0.4 units per net lot area of development in acres. b. Where the fractional calculated required WHU lots are greater than one-half, the developer shall be required to provide the next full lot. 2. Specified use calculations. a. A minimum of 30 percent of the required WHUs must be DSFHs. b. The remaining required WHUs may be either DSFHs or ASFUs. c. Rounding of units will be in favor of DSFH. 3. Deed restriction. a. The WHUs shall be deed-restricted to meet UDO and workforce housing unit program requirements. b. If the actively marketed DSF lot is not sold within one year of final plat approval, the deed restriction shall be removed. c. If the actively marketed DSFH or ASFU is not sold within six months of receiving an occupancy permit from the city building department division, 136the deed restriction will be removed. 4. Marketing. a. All lots and WHUs shall be actively marketed by the developer and/or builder in the appropriate print media and on the city's website. b. WHU lots shall be actively marketed concurrently with the market rate lots. 5. Methods of compliance. a. The developer shall provide the required number of lots for construction of DSFH and ASFU. The lots shall be actively marketed at the same time as the other lots are marketed and not later than commencing at final plat approval. b. Off-site workforce dwelling unit lots. (1) The developer of a subdivision may provide WHU lots off site for the production of the same number and type of WHUs required for the development of the developer's subdivision. The land must be suitable for construction, without abnormalities and with complete environmental review accepted by the city. It must be economically feasible to develop the required number of units on the site. The site must be appropriately zoned and improved with infrastructure (including curbs, gutters, water, sewer, and storm drainage) to city standards. Excessive aggregation of WHUs shall be discouraged. (2) The developer may opt to build WHUs in another location within the city. When developed in excess of required WHUs or in advance of the development for which the WHUs will be required, such WHUs will be accepted as credit toward required units in a future application. This process is known as "banking units." The banked units must be pre- 136 Changed "building department" to "building division" for consistency. OK? Please make the change suggested. PROOFS Page 222 of 977 approved by the workforce housing program administrator. (3) Existing housing may be used to fulfill the requirements defined in Option #1 above provided in subsection B.5.b(1) of this section.137 Such housing must be located within the city, be zoned for residential use, have clear title, be in good repair and available for immediate habitation. The conversion to condominiums of existing rental multifamily housing will not be considered for compliance with the requirements of Option #1 subsection B.5.b(1) of this section, unless such conversions were completed on or before December 31, 2006. (4) "Bonus lots" gained from reduced park land may not be sold until WHU construction commences. (5) 80 percent of the WHUs in any phase of a multiphase development must be built before the next phase may be commenced, excepting infrastructure installation common to both phases. c. Individualized program. A developer may opt for an individualized program which must provide, at a minimum, the same number of units required under Option #1 subsection B.5.b(1) of this section. An individualized program will be subject to standard review by city staff, boards, the commission, and the public. There will be one additional public meeting with the city's affordable housing advisory board (CAHAB). This meeting will review: (1) Project feasibility. (2) Overall benefits and drawbacks of the project. (3) Compliance with the affordable housing policy priority needs. The CAHAB will make a recommendation to the city commission on each individualized program. The commission will make the final decision in conjunction with preliminary plat review. d. Cash in lieu. The developer may pay a fee to the city of three times the value per lot of the lots required to be provided at reduced prices in Option #1 above subsection B.5.b(1) of this section. Money received through the cash in lieu option shall be used to provide down payment assistance and dwelling units for the priority populations identified in the city's periodic housing needs assessment and to cover administrative costs. 25 percent of any cash in lieu collected through this article will be set aside for park land acquisition; maintenance and enforcement of park land development requirements after adequate administrative costs are withdrawn. 6. Waiver. A developer may request a waiver form the requirements of this article. A waiver request must be submitted to the community affordable housing advisory board simultaneously with application for preliminary plat subdivision review. The CAHAB will make a recommendation to the city commission on each waiver request, which will make a final decision. (Ord. No. 1710, § 2(17.02.040), 7-16-2007) 137 To what is Option #1 referring? It is referenced numerous times. Please advise. “Option 1” refers to 10.08.050.B.5.b(1). Please replace the term “Option 1” with a direct cite to the code provision. PROOFS Page 223 of 977 Sec. 10.08.060. Cost of housing. A. Determining the price of a unit. 1. The maximum sales price of a for-purchase workforce housing unit will be determined annually by the workforce housing administrator using the assumptions listed in subsection B of this section. The maximum price of a house built on a workforce housing lot will be provided to the developer of the subdivision at final plat. 2. The price of each WHU is the total price, and will include all taxes, fees, SIDs and commissions accrued in bringing the house to the point of sale. The purchaser of the WHU is responsible for payment of closing costs to secure their financing and is also responsible for payment of any SIDs created after point of sale. B. Pricing assumptions. In setting the maximum price of a WHU, the plan administrator will use the following assumptions: 1. The area median income (AMI), as of January 1 of each year, as set annually by HUD will be used to define annual income for households of two, three, and four earning 80 percent and 100 percent of AMI. 2. Gross monthly income will be calculated as annual income divided by 12. 3. The household's monthly payment will not exceed 30 percent of their gross monthly income for payment of principal, interest, taxes, insurance, and homeowner's association dues. 4. 27 percent of the household's monthly housing payment will be allocated toward payment of escrows for taxes, insurance, and homeowner's association dues. 5. The interest rate will be calculated using the rate of the state board of housing's regular bond program plus one-quarter percent as of January 1 of each year. 6. The loan will be a 30-year, fixed rate loan. 7. Loan to value is 97 percent. The following Table 10.08.060 depicts the mix of dwelling unit types and the associated maximum price for units used to comply with the provisions of this article. Houses must be built to minimum construction standards specified by the workforce housing program administrator. Developments using condominium housing to meet the requirements of this section shall take the necessary steps during construction and shall provide the necessary covenants concerning owner occupancy requirements to ensure that condominium purchases will be eligible for Fannie Mae or FHA financing. Table 10.08.060 Mix and Price of Dwelling Units Total units req'd 1 2 3 4 5 6 7 8 9 10 Detached units required .3 = 1 .6 = 1 .9 = 1 1.2 = 2 1.5 = 2 1.8 = 2 2.1 = 3 2.4 = 3 2.7 = 3 3 = 3 Unit # PROOFS Page 224 of 977 1 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 D,HH4 2 A,HH4 D,HH3 D,HH3 D,HH3 D,HH3 D,HH3 D,HH3 D,HH3 3 A,HH3 A,HH4 A,HH4 A,HH4 D,HH2 D,HH2 D,HH2 D,HH2 4 A,HH3 A,HH3 A,HH3 A,HH4 A,HH4 A,HH4 A,HH4 5 A,HH2 A,HH3 A,HH3 A,HH3 A,HH4 A,HH4 6 A,HH2 A,HH3 A,HH3 A,HH3 A,HH3 7 A,HH2 A,HH2 A,HH3 A,HH3 8 A,HH2A,HH2A,HH3 9 A,HH4 *when only two units are required, the developer may opt to create the two units above, or may choose, as an alternative, to create two A, HH4 units A,HH2A,HH2 10 A,HH2 Key: Unit Code Unit Type AMI HH pricing size Minimum # bedroom Minimum # of baths Garage req'd Min. Lot size (sq. ft) Max price D,HH4 Detached 100% 4 3 1+.5 1 stall 2700 D,HH3 Detached 100% 3 3 1+.5 1 stall 2700 D,HH2 Detached 100% 2 2 1+.5 1 stall 2700 A,HH4 Attached 80% 4 3 1+.5 1 stall 2500 A,HH3 Attached 80% 3 3 1+.5 1 stall 2500 A,HH2 Attached 80% 2 2 .75+.5 1 stall 2500 Set annually by WFH administrator using the assumptions listed in this section (10.08.060) Units required in excess of ten will be determined using the above chart. For example, 15 units will be determined by combining the requirements for ten and five units. Thirty-five units will be calculated using three times the ten unit requirement plus the five-unit requirement. (Ord. No. 1710, § 2(17.02.050), 7-16-2007) Sec. 10.08.070. Cost offsets. A. A one-to-one density bonus will be provided for each dwelling unit meeting the workforce housing requirements, whether on site or through land dedication. Density of development must be such that the density bonus does not cause the individual lots to have dimensions or constructed dwellings to have characteristics which are less than minimum standards established by chapter 38. PROOFS Page 225 of 977 1. Developers and builders may choose to take advantage of as many of the following cost offsets as are appropriate for their project, subject to any limitations listed with specific offsets: a. The reduction of park land for WHU shall be a 1:1 ratio based on the minimum required square footage of the lot area of the minimum required number of lots. For example, if 50,000 square feet of WHU lots are required, then there shall be a reduction in the required park land area of 50,000 square feet. If the developer chooses to develop more than the required WHU lots the additional lot area square footage, above the minimum required, shall not reduce the park land area below the statutory minimum required. If the developer chooses to develop the required WHU lots on lots larger than the minimum required lot area, the additional lot area square footage, above the minimum required, shall not reduce the park land area below the statutory minimum required. The reduction of park land shall be allowed for WHUs and/or lots provided off site but only to the extent of the minimum required WHU lot area for the development applying for this park land offset and only applied on the site of the development applying for the park land offset. The work force housing park dedication reductions can not cause a subdivision to provide less than the minimum amount of park land required by MCA 76-3-621. of state law. b. Significantly smaller minimum lot sizes are allowed for workforce dwelling units (WHUs), both detached and attached. c. A sliding scale of fully and partially deferred impact fees will be used for WHUs. WHUs priced for sale to households making 70 percent or less of AMI qualify for 100 percent deferred impact fees. Units priced for sale to households making 71-80 percent qualify for 50 percent deferred impact fees and 50 percent impact fee payment required prior to certificate of occupancy. Units priced for sale to households making 81 percent to 90 percent AMI qualify for 25 percent deferred impact fees and 75 percent impact fee payment required prior to certificate of occupancy. Units priced for sale to households at 91--100 percent AMI qualify for 100 percent impact fee payment required prior to certificate of occupancy. (1) After ten years of unchanged ownership, all deferred impact fees shall be paid to the city whenever the property is refinanced, sold, or changes ownership. d. Builders paying WHU impact fees qualify for deferral of payment until certificate of occupancy. e. A sliding scale of fully waived, reduced and deferred impact fees will be used for WHUs. WHUs priced for sale to households making 70 percent or less of AMI qualify for 100 percent waived impact fee. Units priced for sale to households making 71-80 percent AMI qualify for 50 percent waived impact fee and 50 percent impact fee payment deferred until certificate of occupancy. Units priced for sale to households making 81 percent to 90 percent AMI qualify for 25 percent waived impact fee and 75 percent impact fee payment deferred until certificate of occupancy. Units priced for sale to households at 91-100 percent AMI qualify for 100 percent impact fee payment deferred until certificate of occupancy. f. Reduction or waiver of other city fees may be available for housing projects PROOFS Page 226 of 977 that are 100 percent affordable, according to the city definition of affordability and that are approved through the individualized program. g. Fast-track site plan review is allowed through use of contract planners. h. Expedited review by all departments (planning, engineering, building, etc.) will be arranged upon request for site plans with 100 percent affordable or workforce housing. i. Simultaneous infrastructure and housing construction will be permitted upon request for projects building on-site workforce housing units as specified by this article, in line with UDO requirements. j. Projects will be rewarded with optimal review time if project submittals are complete and fully meet code standards so planners/engineers/building department do not have to send the project back to applicant for more work. k. Low-interest construction loans possible for construction of workforce housing units on an as-available basis through the city's economic development and housing revolving loan funds and/or through participating private lenders. l. Zero lot line is allowed in all residential zoning districts for creation of paired town homes on two lots. This permits combination of two workforce housing units or one workforce unit and one market-rate unit. In R-1 zoning, duplexes must be comparable in size to market-rate single-family homes in the subdivision and designed to look like single-family homes in regard to placement of doors, garages, and driveway. m. WHU architectural plans available through the city will be exempt from design review. (Ord. No. 1710, § 2(17.02.060), 7-16-2007; Ord. No. 1714, § 1, 8-27-2007) Sec. 10.08.080. Requirements for workforce housing units (for the builder/developer). A. Mix. Workforce housing units (WHU) shall be a mix of two and three bedrooms, both detached and attached. There shall be a minimum of 30 percent detached units, with the remainder as attached units. The units shall be located throughout the subdivision. All homes must have at least one bath and a single car garage at minimum. One bedroom units and four bedroom units will be considered as WHUs as part of an individualized project. (See section 10.08.050.B.5.) B. Unit type. The units must be similar (compatible, consistent) in exterior finish and design to other market rate units within the subdivision. (Concept is that WHUs should not be easily identifiable by someone driving through the area). C. Livability. WHUs should be functionally equivalent to other market rate units, i.e. closets, patios or decks or porches, kitchens. The materials used on the interior finish may be of different quality, e.g. laminate countertops instead of tile, linoleum entry instead of tile, but durable. D. Location. The location of the WHU must be identified on the preliminary and final plats. The units must be located throughout the subdivision, either individually or in small clusters. (Concept is that units may be in small clusters, but not located in one corner/area of the subdivision). E. Timing. 1. Regarding lots. a. Workforce housing lots must be actively marketed (refer to section 10.08.050) PROOFS Page 227 of 977 during the same period as market rate lots in the subdivision. b. Workforce housing lots must provide the city with first right of refusal to purchase in the event that an actively market lot is not sold within 12 months of availability. c. In the event that a lot has been actively marketed (as determined by the workforce housing administrative authority) for a period of not less than one year and remains unsold the city will do the following: (1) Determine if the city will elect to exercise their first right of refusal to purchase the lot at its workforce housing program price; (2) If the city chooses not to purchase the property, the developer may sell the lot as a market rate lot. The difference between the lot's sales price and the workforce housing program price plus interest paid on the lot will be paid to the city's affordable housing fund when the lot closes by the title company. The deed restriction on the lot will be removed as closing as well. d. Lots that are not actively marketed and for which building permits are not drawn within four years of commencement of construction of market rate units will be subject to purchase by the city at one-half the workforce housing lot price in the year the final plat was received. 2. Regarding building on the lots. a. Workforce housing lots purchased must draw building permits within three years of the initial sale of the lot. b. Workforce housing lots not drawing a building permit within three years of the initial transfer of the lot will be subject to purchase by the city for one- half the workforce housing lot price in the year final plat for the subdivision was received. c. Owners of a workforce housing lot unable to draw a building permit in the prescribed time may appeal to workforce housing administrative authority for a waiver to prevent sale of the lot to the city and allow for additional time to construct a workforce housing unit. The request will be reviewed by the workforce housing administrative authority, who will make a recommendation to the city commission. Final decision will be that of the city commission. Requests for waivers must include: (1) Reason for the request. (2) Lot owner's proposal to build workforce housing unit and timeline. F. Disclosure. In addition to being designated on the plat, the location and type of WHU in a development must be disclosed in writing by each seller of a WHU to each subsequent purchaser. (Ord. No. 1710, § 2(17.02.070), 7-16-2007) Sec. 10.08.090. Occupancy requirements. A. Owner occupancy. WHUs must be the primary residence of the owner. A property may not be vacant for more than 30 days. B. Proof of primary residency. Homeowners are required to supply proof of full-time residence on an annual basis to the city. Proof must consist of bills from utility companies or any personal government mailings. If it is determined that the WHU is not being used as a primary PROOFS Page 228 of 977 residence, the lender will be notified. The mortgage lender and or its assigns, will handle this conflict according to a rider that is attached to the mortgage note, which is signed by the mortgagor (applicant) at settlement of the loan. C. Allowance for periodic absences. Absences are allowed for sabbaticals, yearlong job transfers, military responsibilities, etc. Periodic absences are not to exceed one year or as established by federal law. Proof of valid absence shall be required. D. Renting during periodic absences. WHUs may be rented by the owner during an acceptable periodic absence. The homeowner may rent their home for one full year for every five years of residency. If the WHU homeowner rents their home for more than one consecutive year, this is not considered owner occupancy and the loan will be called due in full within 30 days. The homeowner must notify the city when such rentals are commenced and terminated. E. Purchase of another property during residency. A homeowner is allowed to purchase other property while living in their WHU but must notify the city. F. Sustained affordability. The following measures will be applied to ensure that sustained affordability is achieved in the workforce housing: 1. Appreciation on the unit will be capped at 4.5 percent per year, maximum. A person purchasing a WHU will only be eligible to receive a maximum of 4.5 percent appreciation each year. This is the maximum appreciation allowed, not the guaranteed rate of appreciation. Purchasers will receive a maximum appreciation schedule at closing. 2. In the case of foreclosure or sale, the city will be granted a first right of refusal on the property. Any net income the city earns from the resale of the property will be dedicated to down payment assistance. Should the city not exercise this right, the lender may liquidate the property at market rate. 3. The maximum rate of appreciation will apply for the first ten years of ownership. After ten years of ownership, any workforce housing deed restriction on the property will be removed. If the house is sold before ten years, the new buyer will be subject to the workforce housing eligibility requirements and a new ten year affordability period will commence. 4. In the event of the sale of the property before ten years, appreciation of the property is calculated. If the actual appreciation of the property is less than the maximum appreciation, the owner receives the actual appreciation (less costs). If the maximum rate of appreciation is equal to the rate of appreciation, the owner receives the maximum rate (less costs). If the actual appreciation of the property is greater than the maximum rate (4.5 percent), the owner receives the maximum rate (4.5 percent) and the difference will be allocated to the city's workforce housing fund. (Ord. No. 1710, § 2(17.02.060), 7-16-2007) Sec. 10.08.100. Buyer qualification. A. Before a household may register in the lottery for the opportunity to purchase a WHU, they must meet the following requirements: 1. Buyer loan pre-qualification. All program applicants must be pre-qualified upon credit evaluation (credit scores from all three credit bureaus or acceptable non- traditional scores) by a city-approved lender. The applicant must obtain a letter of pre-qualification from the city-approved lender that is no more than 90 days old. Once the applicant is pre-approved by the workforce housing program authority and a city approved lender, they will be placed into the lottery. The applicant will remain PROOFS Page 229 of 977 pre-qualified until selected in the lottery. Once selected, if the applicant's pre- qualification letter is older than 90 days, the applicant will be given one week to obtain pre-qualification again. After one week, the selection lapses and new buyers are selected. If the applicant's letter is less than 90 days old at time of selection, the applicant does not have to obtain re-qualification from a city approved lender. The city shall cooperate with the Road To Home program and local lenders to assist in maintaining the prequalified list. 2. Household income. The current total household income for the household may not exceed 120 percent of area median income for a household or of four. For households larger than four, the income cap will be 120 percent for the size of that household. 3. Asset limits. The applicant must verify that they have sufficient liquidity to bridge the gap between the loan amount and the home's purchase price; however, total liquid household assets are limited to $100,000.00 and non-liquid assets are limited to $150,000.00. Applicants are not allowed to own any other homes or residential property anywhere. This provision eliminates any applicants who own rental or investment property. 4. Household size. There will be no minimum or maximum household size limits for the program except as defined by local, state or federal law. 5. Residency requirement. All applicants must be residents of or employees working in Gallatin County or demonstrate that they are moving to the area for a specific job when they apply for the program. 6. Homebuyer's education. Applicants must complete a homebuyer's education program of the city's choice. (Ord. No. 1710, § 2(17.02.090), 7-16-2007) Sec. 10.08.110. Buyer selection process (the lottery). A lottery system will be established by the city and/or workforce housing program agency to determine a homebuyer whenever multiple qualified applicants wish to purchase the same workforce lot or home. (Ord. No. 1710, § 2(17.02.100), 7-16-2007) Sec. 10.08.120. Program review. The workforce housing program established herein shall be reviewed two years after its inception and annually thereafter to determine its effectiveness and to determine if the mechanics of the program are found to impose an unreasonable burden on either the parties producing the housing or on the parties purchasing it. (Ord. No. 1710, § 2(17.02.110), 7-16-2007) PROOFS Page 230 of 977 Chapter 11 RESERVED PROOFS Page 231 of 977 Chapter 12 BUSINESS LICENSING* *State law reference—Trade and commerce, MCA 30-1-101 et seq. ARTICLE 1. IN GENERAL GENERAL PROVISIONS138 5.01.010. Title. This chapter shall be known and may be cited as the "general licensing ordinance of the city of Bozeman, Montana." (Code 1982, § 5.01.010; Ord. No. 1273, § 1, 1988) 5.01.020. Scope. It is not intended by this chapter to repeal, abrogate, annul or in any way impair or interfere with existing provisions of other laws or ordinances, except those specifically repealed by this chapter. Where this chapter imposes a greater restriction upon persons, premises or personal property than is imposed or required by such existing provisions of law, or ordinance, the provisions of this chapter shall control. (Code 1982, § 5.01.020; Ord. No. 1273 § 2, 1988) Sec. 12.01.010. Definitions. A. The following words, terms and phrases, when used in this chapter and other related regulations in this Code139, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. Generally. For the purpose of this chapter, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number, and masculine words shall include feminine. The word "shall" is always mandatory and not merely directory. 1. "Business" is meant to include all kinds of vocations, occupations, professions, enterprises, establishments, and all other kinds of activities and matters, together with all devices, machines, vehicles and appurtenances used therein, any of which are conducted for private profit, or benefit, either directly or indirectly, on any premises in this city, not exempted by state law or this chapter. __ City. "City" is the city of Bozeman, Montana. (Code 1982, § 5.02.030; Ord. No. 1273, § 3(B), 1988) __ City license officer.140 "City license officer" is the administrative services director of the city or his designated representative. (Code 1982, § 5.02.040; Ord. No. 1273, § 3(C), 1988) 138 This chapter does not really accomplish anything, unless it was meant to apply to the whole title. Yes. Delete. 139 Note change due to some business regulations being moved to other chapters. 140 Title still accurate? It should be finance director. The title will be changed throughout. Definition is covered by chapter 1. PROOFS Page 232 of 977 2. "Electronic amusement games" means any electronic game or mechanical device operated for the sole purpose of amusement of the patrons. 3. "Going out of business sale" means a sale held in such a manner as to reasonably cause the public to believe that upon the disposal of the stock on hand, the business will cease and be discontinued. Going out of business sales shall be strictly limited to stock on hand at the commencement of the sale. 4. "Home occupation" means the use of a portion of a dwelling as an office, studio or workroom for occupations at home by one or more persons residing in the dwelling unit. No home occupation shall occupy more than 20 percent of the gross floor area nor more than 400 square feet of gross floor area. The activity must be clearly incidental to the use of the dwelling for dwelling purposes, and shall not change the character or appearance thereof. 5. "Itinerant vendor" means any person engaged or employed in the business of selling to consumers by going from consumer to consumer, either on the streets or to their places of residence or employment and soliciting, selling or taking orders for future delivery of any goods, wares, or merchandise or for services to be performed in the future. 6. "License" means the authority, necessary from the city, granted the person to whom it is issued to engage in a specific business or occupation. 7. "Marijuana" and "usable marijuana" have the meanings as defined in MCA 50-46- 102. 8. "Medical marijuana" means the uses of marijuana described in MCA 50-46-102. Other phrases herein such as the "use of medical marijuana" or "the medical use of marijuana" shall have the same meaning. 9. "Nonprofit organization" means any group which does not distribute pecuniary gains, profits or dividends, and pecuniary gains are not the objective of the organization. Nonprofit organizations or groups must be recognized as such by the United States Internal Revenue Service and the state department of revenue. 10. "Person" means and includes individual natural persons, partnerships, joint ventures, societies, associations, clubs, trustees, trusts, or corporations; or any officers, agents, employees, factors, or any kind of personal representatives of any thereof, in any capacity, acting either for themselves, or for any other person, under either personal appointment or pursuant to law. 11. "Property manager" means a person which rents or leases rental units and does not include hotels or motels. 12. "Square footage" means the total number of square feet contained within the exterior walls of a building, used in the business operation and open to the public. 13. "Temporary premises" means any hotel, motel, roominghouse, storeroom, building, or any part of any building whatsoever, tent, vacant lot, freight station, car or truck, temporarily occupied for the business defined above. Temporary premises does not include sales booths, concession stands, etc. which are operated in conjunction with a community sponsored event authorized by the city commission. 14. "Transient merchant" means any person who brings into temporary premises into the city a stock of goods, wares or articles of merchandise or notions or other articles of trade, and who solicits, sells or offers to sell, or exhibits for sale, such stock of goods, wares or articles of merchandise or notions or other articles of trade is within PROOFS Page 233 of 977 the meaning of this chapter a "transient merchant," and such definition shall continue to apply until such person is continuously engaged at such temporary premises for a period of one year. (Code 1982, §§ 5.02.010, 5.02.020, 5.02.050--5.02.150; Ord. No. 1273, § 3(A), (D)--(N), 1988; Ord. No. 1786, § 1(5.02.100, 5.02.110), 7-26-2010) ARTICLE 2. ADMINISTRATION AND ENFORCEMENT Sec. 12.02.010. Compliance required. It shall be unlawful for any person, either directly or indirectly, to conduct any business or to use in connection therewith any vehicle, premises, machine, device, employee, or agent in whole or in part, for which a license, or permit, is required by any law or ordinance of this city, without a license, or permit being first procured and kept in effect at all such times as required by this chapter ordinance141 or other law or ordinance of this city; nor shall the issuance of a license entitle or authorize the applicant to open or maintain any business contrary to the provisions of this chapter ordinance or law. (Code 1982, § 5.04.010; Ord. No. 1273, § 4(A), 1988) Sec. 12.02.020. Separate license for branch establishments. A license shall be obtained in the manner prescribed herein for each branch establishment or location of the business engaged in, as if each such branch establishment or location were a separate business; provided that warehouses and distributing plants used in connection with and incidental to a business licensed under the provisions of this chapter shall not be deemed to be separate places of business or branch establishment. (Code 1982, § 5.04.020; Ord. No. 1273, § 4(B), 1988) Sec. 12.02.030. Joint license. A person engaged in two or more businesses at the same location shall not be required to obtain separate licenses for conducting each of such businesses but, when eligible, shall be issued one license. (Code 1982, § 5.04.030; Ord. No. 1273, § 4(C), 1988) Sec. 12.02.040. Exemptions. A. No license shall be required of any person or entity for any mere delivery in the city of any property purchased or acquired in good faith from such person or entity as the person or entity's regular place of business outside the city where no intent by such person is shown to exist to evade the provisions this chapter. B. No license shall be required of any nonprofit organization as defined by this chapter. C. No license shall be required of any person under 18 years of age. D. No license shall be required for any property manager managing on renting less than three rental units. E. The exemptions listed in subsections A, B, C, and D of this section do not apply to a transaction, use, or business involving medical marijuana. (Code 1982, § 5.04.040; Ord. No. 1273, § 4(D--G), 1988; Ord. No. 1786, § 2, 7-26-2010) 141 The ordinance is 1273 that covers the first four chapters and parts of the remainder of the title. I suggest combining those chapters into one chapter. Ok. PROOFS Page 234 of 977 Sec. 12.02.050. Director of finance; duties. A. The city license officer director of finance shall collect all license fees and shall issue license and renewals thereof in the name of the city to all persons qualified under the provisions of this chapter and shall have the power to: 1. Make rules. The city license officer director of finance shall promulgate and enforce all reasonable rules and regulations necessary to the operation and enforcement of this chapter. All rules are subject to commission review and modification. 2. Adopt forms. The city license officer director of finance shall adopt all forms and prescribe the information to be given therein as to character and other relevant matter for all necessary papers. 3. Obtain endorsement. The city license officer director of finance shall submit all applications to interested city officials for their endorsements thereon as to compliance by the applicant with all city regulations which they have the duty of enforcing. 4. Investigate. The city license officer director of finance shall investigate and determine the eligibility of any applicant for a license as prescribed herein. 5. Examine records. The city license officer director of finance shall examine the books and records of any applicant of licensee when reasonably necessary to the administration and enforcement of this chapter. 6. Give notice. The city license officer director of finance shall notify any applicant of the acceptance or rejection of the application and shall, upon the city license officer director of finance's refusal of any license or permit, at the applicant's request, state in writing the reasons therefor and deliver them to the applicant. New applicants will be notified within seven working days. 7. Register of licenses. The city license officer director of finance shall maintain at all times a license register, in which shall be entered the full name of each licensee, the address at which such business is conducted, the date of the issuance, the purpose for which the license is issued, the amount paid therefor, the telephone and address of the applicant, and the time such license will continue in force. (Code 1982, § 5.04.050; Ord. No. 1273, § 5, 1988) Sec. 12.02.060. Formal application required. A. Every person required to procure a license under the provisions of any ordinance or law of the city shall submit an application for such license to the city license officer director of finance. The application requirements are as follows: 1. Form of application. The application shall be a written statement upon forms provided by the city license officer director of finance. 2. Contents of application. The applicant is required to disclose all information necessary to comply with this chapter and of any other information which the city license officer director of finance shall find to be reasonably necessary to the fair administration of this chapter. 3. Compliance with laws and regulations. Issuance of a business license is contingent upon a business being in compliance with all applicable zoning, building and fire codes and other laws and regulations which protect the health, safety and welfare of the citizens of the community. 4. Payment of fees. The application shall be accompanied by the full amount of the fees PROOFS Page 235 of 977 chargeable for such license. (Code 1982, § 5.04.060; Ord. No. 1273, § 6(A), 1988) Sec. 12.02.070. Change of location. A. A licensee shall have the right to change the location of the licensed business; provided that the licensee shall comply with zoning, building, engineering and fire regulations. A licensee shall: 1. Obtain a new license for such change of location; 2. Pay a new special services and regulatory inspection fee. (Code 1982, § 5.04.070; Ord. No. 1273, § 6(B), 1988) Sec. 12.02.080. Transfer of license. A. A licensee hereunder shall have the right to transfer the licensee's license to another person provided the licensee shall: 1. Execute the transfer in the form and under the conditions required by law and as prescribed by the license officer director of finance; 2. Promptly report the completed act of transfer to the license officer director of finance; 3. Upon the completion of a transfer of license in compliance with this section, be issued a new license to the transferee for the unexpired term of the old license; 4. Pay the required fee. (Code 1982, § 5.04.080; Ord. No. 1273, § 6(C), 1988) Sec. 12.02.090. Contents of license; information required. A. Each license issued hereunder shall state upon its face the following: 1. The name, address, and telephone number of the licensee and any other name under which such business is to be conducted; 2. The type and address of each business so licensed; 3. The amount of license fee therefor; 4. The dates of issuance and expiration thereof; 5. Approval of the various regulatory departments of the city; 6. Such other information as the license officer director of finance shall determine. (Code 1982, § 5.04.090; Ord. No. 1273, § 10, 1988) Sec. 12.02.100. Expiration of license. All licenses issued pursuant to this chapter shall expire on December 31 of the year in which such license is issued. (Code 1982, § 5.04.100; Ord. No. 1273, § 8(A), 1988) Sec. 12.02.110. License renewal. Every person licensed to engage in any business covered by this chapter, if such business is to be continued, shall renew such license by February 15 of the next calendar year. (Code 1982, § 5.04.110; Ord. No. 1273, § 8(B), 1988) PROOFS Page 236 of 977 Sec. 12.02.120. Noncompliance; penalty. Failure of a business to either obtain a new business license or to renew a business license as required by this chapter shall result in a delinquent charge of ten percent of the annual license and inspection fee, for each month the application remains delinquent. (Code 1982, § 5.04.120; Ord. No. 1273, § 9, 1988) Sec. 12.02.130. Duties of licensee. A. General standards of conduct. Every licensee under this chapter shall: 1. Permit all reasonable inspections of the licensee's business by public authorities so authorized by law; 2. Ascertain and at all times comply with all laws and regulations applicable to such licensed business; 3. Avoid all illegal, forbidden, improper or unnecessary activities, practices or conditions which do or may affect the public health, safety, or welfare; 4. Refrain from operating the licensed business on premises after expiration of the license and during the period the license is revoked or suspended. B. Display of license. Every licensee under this chapter shall post and maintain such license upon the licensed premises in a place where it may be seen at all times by the public. (Code 1982, § 5.04.130; Ord. No. 1273, § 11, 1988) Sec. 12.02.140. Inspections; persons authorized. A. The following persons are authorized to conduct inspections in the manner prescribed herein: 1. License officer Director of finance. The license officer director of finance shall make all investigations reasonably necessary to the enforcement of this chapter. 2. City officers. All police, fire, building inspectors, city engineers, zoning official, and other officials designated by the license officer director of finance, shall inspect and examine businesses located within their respective jurisdictions to enforce compliance with the chapter. (Code 1982, § 5.04.140; Ord. No. 1273, § 13(A), 1988) Sec. 12.02.150. Authority of inspectors. A. All persons authorized herein to inspect licensees and businesses shall have the authority to enter, with or without search warrant, at all reasonable times, the following premises: 1. Those for which a license is required; 2. Those for which a license was issued and which, at the time of inspection, are operating under such license; 3. Those for which the license has been revoked or suspended. (Code 1982, § 5.04.150; Ord. No. 1273, § 13(B), 1988) Sec. 12.02.160. Reports by inspectors. Persons inspecting licensees, their businesses, or premises as herein authorized shall report all violations of this chapter or of other laws or ordinances to the city attorney and shall submit such other reports as the city attorney shall order. (Code 1982, § 5.04.160; Ord. No. 1273, § 13(C), 1988) PROOFS Page 237 of 977 Sec. 12.02.170. License revocation/suspension--Generally. A. The city license officer director of finance may suspend or revoke a license when the licensee commits one or more of the following acts or omissions: 1. The violation of any provision of this chapter; 2. The violation of any ordinances provisions relating to the health, safety and welfare of the citizens of the community; or 3. The securing of any license by fraud or misrepresentation, to specifically include false or incorrect information on the license application. (Code 1982, § 5.04.170; Ord. No. 1273, § 14, 1988) Sec. 12.02.180. Same--Procedure. A. When any of the acts or omissions as herein enumerated are committed by a license holder and the license is suspended or revoked, the procedure shall be as follows: 1. The licensee shall be notified in writing by the city license officer director of finance at least seven days prior to the action contemplated and the reasons therefor. 2. Upon receipt of the notice, the licensee may request a hearing. Such request shall be in writing and shall be received by the city license officer director of finance within seven days of the receipt of notice. Failure on the part of the licensee to request a hearing in writing and within the specified time period shall be deemed a waiver of the licensee's right to a hearing. 3. If a hearing is requested by the licensee, the city license officer director of finance shall set a time, date and place and shall so notify the licensee, in writing. 4. When a hearing is conducted, the licensee and other interested parties may be in attendance. The city shall present the evidence supporting the contemplated action. The licensee may present evidence. The city license officer director of finance shall take all evidence admitted under advisement and once a decision has been made, the city license officer director of finance shall notify the licensee of the findings and rule in writing. (Code 1982, § 5.04.180; Ord. No. 1273, § 15, 1988) Sec. 12.02.190. Appeal. A. Right of appeal. Any person aggrieved by any decision of the city license officer director of finance shall have the right of appeal to the city commission by filing a written appeal with the city clerk within 20 days following the effective date of the action taken or the decision made. B. Contents of appeal. Such appeal shall set out a copy of the order or decision appealed and shall include a statement of the facts relied upon to avoid such action taken or decision made. C. Notification of license officer director of finance. At the time of filing any such appeal a copy thereof shall be filed by the appellant with the city license officer director of finance. D. Hearing. The city commission shall fix a time and place for hearing the appeal and shall personally serve a written notice, as provided herein, upon the appellant informing him the appellant thereof. The city commission shall also give such notice to the city license officer director of finance and such officer shall be entitled to appear and defend such action taken or decision made. E. Effect of decision. The findings of the city commission shall be final and conclusive and shall be personally served upon the appellant as required herein. PROOFS Page 238 of 977 (Code 1982, § 5.04.190; Ord. No. 1273, § 16, 1988) Sec. 12.02.200. Unpaid fee constitutes debt. The amount of any unpaid fee, the payment of which is required hereunder, shall constitute a debt due the city. (Code 1982, § 5.04.200; Ord. No. 1273, § 17(A), 1988) Sec. 12.02.210. Action by city attorney. The city attorney may institute civil suit in the name of the city to recover any such unpaid fee. (Code 1982, § 5.04.210; Ord. No. 1273, § 17 (B), 1988) Sec. 12.02.220. Civil judgment no bar. No civil judgment, or any act by the city attorney, the city license officer director of finance or the violator shall bar or prevent a criminal prosecution for each and every violation of this chapter. (Code 1982, § 5.04.220; Ord. No. 1273, § 17(C), 1988) Sec. 12.02.230. Interstate commerce. Nothing in this chapter is intended to operate so as to interfere with the power of the Congress of the United States to regulate the commerce between the states. (Code 1982, § 5.04.230; Ord. No. 1273, § 18, 1988) Sec. 12.02.240. Compliance regarding violations142. Whenever a violation of this chapter title occurs or is alleged to have occurred, any person may file a written complaint. Such complaint stating fully the causes and basis thereof shall be filed with the director of finance, who shall make, or cause to be made, a complete investigation of the allegations and take the appropriate action as provided by this chaptertitle. (Code 1982, § 5.68.010; Ord. No. 1117, § 16, 1982) 5.68.020. Penalties143. Violation of the provisions of this title or failure to comply with any of its requirements shall constitute a misdemeanor. Any person who violates this title or fails to comply with any of its requirements shall upon conviction thereof be fined not less than one hundred dollars nor more than five hundred dollars, or imprisoned not more than six months, or both, and in addition shall pay all costs and expenses involved in the case. Each day such violation continues shall be considered a separate offense and punishable as such. (Code 1982, § 5.68.020; Ord. No. 1117, § 16, 1982) 5.68.030. Separability clause144. Should any section or provision of the ordinance codified in this title be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of this title as a whole or any part thereof other than the part so declared unconstitutional or invalid. (Code 1982, § 5.68.030; Ord. No. 1117, § 16, 1982) 142 Is this section necessary? If so, should it apply to only the former chapters remaining in this new chapter, or to all the former chapters of Title 5? Keep, but apply only to this new chapter. 143 This section is covered by the general penalty. Delete. 144 This sections is covered by Code § 1.01.100. Delete. PROOFS Page 239 of 977 5.68.040. Review--two years145. __ This title may be reviewed by the city commission for possible revision and update two years from date of final passage and adoption. __ This section shall not be construed so as to invalidate this title. It shall remain in full force and effect during the period of review, or lack thereof, and shall be superseded only by ordinance as provided by state statute. (Code 1982, § 5.68.030; Ord. No. 1117, § 16, 1982) ARTICLE 3. LICENSE FEE SCHEDULE Sec. 12.03.010. Business license fees. All business license fees, unless otherwise specified in this chapter, shall be based on the square footage of the business being licensed in consideration of the costs of administering this chapter and the regulatory costs incurred. The fee schedule is as follows: LICENSE FEE SCHEDULE GENERAL BUSINESSES: Square Footage Registration & License Fee (in dollars) Special Services & Regulatory Inspection Fee (in dollars) Total Fee (in dollars) 0 - 199 25 0 25 200 - 999 25 25 50 1,000 - 1,999 25 50 75 2,000 - 4,999 25 100 125 5,000 - 9,999 25 175 200 10,000 & Over 25 225 250 SPECIFIC BUSINESSES: Registration & License Fee (in dollars) Special Services & Regulatory Inspection Fee (in dollars) Total Fee (in dollars) Itinerant Vendors 25 5 30 Home Occupation 10 -0- 10 Transient Merchants 25 50 75 Pawnbrokers 25 125 150 Carnivals/Rodeos/Fairs Per Visit not to exceed 25 200 225 145 I don’t see the need for this section. All ordinances are subject to review at any time. Delete. PROOFS Page 240 of 977 7 consecutive days Going-Out-Of-Business 25 25 50 Hotels/Motels 1 -- 15 Rooms 25 25 50 15 + Rooms (+$2.00/Rm)* 25 25+* Varies Transfer Fee 10 -0- 10 Amusement Games/Machine (M) 15/M 15/M Machines depicting sexual activity/Machine (M) 25/M 75/M 100/M Medical marijuana 25 125 150 Emergency Medical Service146 500 -0- 500 (Code 1982, § 5.05.010; Ord. No. 1273, § 7(A), 1988; Ord. No. 1786, § 3, 7-26-2010) Sec. 12.03.020. Allocation of fees. All fees collected under this chapter shall be deposited by the city treasurer in the city's general fund and be used to support the various departments, divisions, and activities of the city which provide regulation and to recover the costs of the administering of this chapter. (Code 1982, § 5.05.020; Ord. No. 1273, § 7(B), 1988) Sec. 12.03.030. Prorated fee for new general businesses. The license fee of any new general business commenced after the beginning of the license period will be prorated on a semiannual basis. (Code 1982, § 5.05.030; Ord. No. 1273, § 7(C), 1988) Sec. 12.03.040. Rebate of fee; general prohibition. No rebate or refund of any license fee or part thereof shall be made by reason of the nonuse of such license or by reason of a change of location or business rendering the use of such license ineffective. (Code 1982, § 5.05.040; Ord. No. 1273, § 7(D), 1988) 146 Added from article V of the fire chapter. PROOFS Page 241 of 977 Chapter 13 RESERVED PROOFS Page 242 of 977 Chapter 14 CEMETERIES*147 *State law reference—Cemetery services, MCA 7-35-2131 et seq.; cemetery associations, MCA 35-20-101 et seq.; mausoleum-columbarium authorities, MCA 35-21-101 et seq. Sec. 14.01.010. Authority. A. Pursuant to the provisions of MCA 7-35-4101, the city has established a municipal cemetery known as the "Sunset Hills Cemetery." B. It is unlawful for any person, association or corporation to bury or inter, or cause to be buried or interred, the dead body of any person in any place in the city, or to maintain a cemetery within the limits of the city, or within three miles of the limits of the city, except as provided in this chapter. (Code 1982, § 2.76.010; Ord. No. 1200, 1986) Sec. 14.01.020. Cemetery land. Sunset Hills Cemetery shall be comprised of all those lots, blocks and parcels of land heretofore conveyed to the city for cemetery purposes, as recorded in the office of the clerk and recorder of the county, together with such land hereafter conveyed and recorded for that purpose. (Code 1982, § 2.76.020; Ord. No. 1200, 1986) Sec. 14.01.030. Management; enforcement authority. The management, maintenance and control of the Sunset Hills Cemetery shall be under the direct control and supervision of the city manager or the city manager's designee. It shall be the city manager's duty to enforce all rules, regulations and ordinances promulgated by the cemetery board and adopted by the city commission for the administration of the cemetery. (Code 1982, § 2.76.040; Ord. No. 1200, 1986; Ord. No. 1643, § 6, 7-18-2005) Sec. 14.01.040. Sale of lots. A. All ground within the Sunset Hills Cemetery, as now created or hereinafter added to, as platted or as hereinafter platted, shall be sold for burial purposes only, and such sale shall be made subject to the rules and regulations promulgated by the cemetery board and adopted by the city commission. The director of finance, or the director's designee, shall sell lots at the prices fixed by the city commission, giving to the purchaser a deed receipt therefor, showing the amount paid and a description of the lots sold. Said deed form and sale price of the lots shall be as recommended by the cemetery board and approved in resolution form by the city commission. The purchase price for the lots and the maintenance fee for same, as required in subsection B of this section, are due and payable before a deed receipt can be issued. B. The purchaser may enter into a sale/purchase agreement with the city for a cemetery lot or lots with the following stipulations: 1. The total purchase price shall be the same as in subsection A of this section. 2. A down payment in the amount of one-third shall be paid at the time of the execution of the agreement. 3. The balance of the total purchase price shall be paid on or before one year from date of execution of the agreement. An administrative charge of $1.00 per month shall be 147 This chapter contains a lot more than just administrative provisions. Moved to a separate chapter. PROOFS Page 243 of 977 assessed, regardless of the amount due, until the full purchase price has been paid. 4. Upon final payment, as per the agreement, a deed receipt shall be issued by the director of finance in the same manner as provided for in subsection A of this section, but in no case shall the lot or lots be used for purposes of interment until the full purchase price has been paid. 5. In the event that the purchaser fails to pay the balance within one year from date of execution of the agreement, the purchaser shall lose the down payment and forfeit all rights, title and interest in and to said lots and the same shall revert to the city. 6. The above agreement may be revoked by the purchaser for good cause (i.e., leaving the state, etc.), upon notification to the director of finance of same. The down payment shall be refunded, less the administrative charge as listed in subsection B.3 of this section. The sale/purchase agreement shall be promulgated by the director of finance and approved by the city attorney. (Code 1982, § 2.76.050; Ord. No. 1200, 1986) Sec. 14.01.050. Transfer of lots. A. No lot sold by the director of finance shall be sold or transferred by the purchaser to any person whomsoever except as follows: 1. Such lot may be transferred to other members of the family upon receipt by the director of finance of a notarized letter from the owner requesting such transfer and stating the reason therefor. Nothing herein shall prevent the interment of nonfamily members at the request of the owner of the lot. 2. Such lot may be reconveyed to the city. The purchaser shall receive therefor the price paid for the lot in the first instance less an administrative charge as recommended by the cemetery board and approved by the city commission. Such reconveyance to the city shall be by quitclaim deed. 3. The owner of such lot may trade same for another lot of equal size. If the current price of the deed and the maintenance fee (previously called permanent care) is greater for the new lot than that paid for the original lot, the owner shall pay the difference before the trade shall be completed. In addition, if no permanent care fee had been paid on the original lot, the current maintenance fee shall be paid before the trade shall be completed. (Code 1982, § 2.76.060; Ord. No. 1200, 1986) Sec. 14.01.060. Record of lots sold. The director of finance, or designee, shall keep a record of all lots sold and the deed receipt therefor; the deed receipt shall be duly recorded in a book kept for that purpose. In addition, a record of such sales shall also be made in the cemetery plat book. (Code 1982, § 2.76.070; Ord. No. 1200, 1986) Sec. 14.01.070. Special cemetery sections. Certain sections of the Sunset Hills Cemetery have been set aside and are known as the Veteran's Section, the Catholic Section, the I.O.O.F. Section and the Masonic Section. The sale of such lots shall be in the same manner as provided in section 14.01.040. Operation, care and maintenance of these sections shall be the same as provided in all other parts of the cemetery. (Code 1982, § 2.76.080; Ord. No. 1490, § 1, 1999; Ord. No. 1491, § 1, 1999) PROOFS Page 244 of 977 Sec. 14.01.080. Interment permit required. No person, firm, association or corporation shall inter or assist in and about the interment of the final placing of the body of any human being within the cemetery unless an interment permit has first been applied for, and been granted, authorizing such interment. Said interment permit shall be issued by the director of finance, and shall not be so issued until the fee (as set forth by resolution of the city commission) therefor has been paid. The interment permit shall only be issued subject to a permit therefor obtained from the county sanitarian's office and under such rules and regulations as shall be prescribed by the bureau of records and statistics of the state department of health and environmental sciences. The city shall prepare all grave sites for interment. The foregoing shall not preclude the director of finance from billing local mortuaries on a monthly basis for such fees. (Code 1982, § 2.76.090; Ord. No. 1200, 1986) Sec. 14.01.090. Disinterment. A. No person, firm, association or corporation shall disinter, move or remove any body from the cemetery without first obtaining a permit therefor from the director of finance. The disinterment permit shall only be issued subject to a permit therefor obtained from the county sanitarian's office and under such rules and regulations as shall be prescribed by the bureau of statistics of the state department of health and environmental sciences. B. If the original interment took place more than one week prior to the request for disinterment, said request showing reasonable cause, shall be in writing to the city manager, or the city manager's designee, and be accompanied with the appropriate fee. C. In addition, if the original interment took place more than one week prior to the request for disinterment, and the coffin is to be opened, the county coroner or other disinterested official shall be on hand to witness the disinterment. (Code 1982, § 2.76.100; Ord. No. 1200, 1986) Sec. 14.01.100. County burial. A. Lots in the Sunset Hills Cemetery shall be set aside and are so reserved for pauper dead. All burials therein shall be made subject to the order of the board of county commissioners of this county. In all cases of the burial of poor, the interment fee shall be charter charged to, and collected from, the county. The interment fee shall be as agreed upon by the county commissioners and the city commission. B. Cadavers from the Montana State University Biology Department, Medical Science and WAMI Programs shall be interred in the same manner as county burials, the interment fee being charged to, and collected from, Montana State University. (Code 1982, § 2.76.110; Ord. No. 1200, 1986) Sec. 14.01.110. Expenditures; payment of claims. The city commission shall annually appropriate money for operation and maintenance of the cemetery, and the director of finance shall pay all approved claims that are within the appropriation. Claims for expenditures may be ordered and authorized by the 148parks and recreation director of public service or the director's designee. Upon the approval and allowance of said claims, so presented, the same shall be paid from the all-purpose general fund. (Code 1982, § 2.76.120; Ord. No. 1200, 1986) 148 Note change requested by city staff. PROOFS Page 245 of 977 Sec. 14.01.120. Perpetual care--Plan generally. The city shall provide for the perpetual care of cemetery lots in the cemetery under such rules and regulations promulgated by the cemetery board and approved by the city commission. (Code 1982, § 2.76.130; Ord. No. 1200, 1986) Sec. 14.01.130. Same--Fund established; maintenance fee; agreement and deposit conditions. A. The permanent care fund heretofore established is reestablished as the cemetery perpetual care trust fund and is herein referred to as the CPC. All moneys deposited in, or credited to, the CPC shall be held in trust by the city and the same shall be kept by the director of finance in a separate fund apart from all other funds of the city. B. For the purpose of providing funds for care and maintenance of the cemetery, both now and in the future, there is established a maintenance fee a percentage of which, as adopted by resolution of the city commission, shall be deposited into the CPC trust fund. At the time of purchase of the lot the purchaser shall deposit the maintenance fee as herein established and at the same time enter into an agreement with the city for perpetual care of the lot, which agreement shall be known as the "perpetual care agreement." C. The CPC trust fund shall be invested and reinvested by the director of finance. The city commission may from time to time direct the investment of such funds. The interest thereon, or earnings therefrom, shall be credited to the all-purpose general fund for the sole purpose of defraying the cost of operating and maintaining the cemetery. (Code 1982, § 2.76.140; Ord. No. 1200, 1986) Sec. 14.01.140. Same--Form of agreement. The form of the perpetual care agreement shall be as determined by the director of finance and approved by the city attorney. (Code 1982, § 2.76.150; Ord. No. 1200, 1986) Sec. 14.01.150. Same--Fund recordkeeping and reports. A. The director of finance shall prepare and keep a record of the perpetual care fund, which record shall show: 1. The name of the person in whose name, or for whom the deposit is made, and the amount thereof; 2. The character and amount of the securities in which the perpetual care fund is invested; 3. Income from perpetual care fund investments. B. An unaudited report shall be made by the director of finance in the month of August immediately following the close of the fiscal year, to the city commission, or at such times as the cemetery board or the city commission may request. (Code 1982, § 2.76.100; Ord. No. 1200, 1986) Sec. 14.01.160. Terms of interment. A. Funerals may be conducted on Saturdays, Sundays and holidays only when it is impossible or impractical to conduct the funeral at another time. However, an additional opening and closing fee shall be charged as established by city commission resolution. B. Generally there shall be one interment per standard size (five foot by ten foot) lot. If requested in advance, not more than two coffins may be interred in the standard size lot. If requested in advance, and only if the coffin is interred first, a standard size lot may be used to PROOFS Page 246 of 977 inter one additional infant or up to four ashes canisters. In all cases where more than one interment is to take place on a standard size lot, an additional fee shall be charged as established by city commission resolution. (Code 1982, § 2.76.170; Ord. No. 1200, 1986) Sec. 14.01.170. Fences prohibited. No lot in the cemetery shall be marked or defined by any fence, coping, railing, hedge, corner posts or embankment, nor shall any lot be filled above the established surrounding grade. (Code 1982, § 2.76.180; Ord. No. 1200, 1986) Sec. 14.01.180. Malicious mischief prohibited. It is unlawful for any person to cut, injure or remove any tree, shrub or vegetation in the cemetery (except authorized maintenance), or deface any tombstone or ornament in the cemetery, or any building in or fence surrounding the cemetery. (Code 1982, § 2.76.190; Ord. No. 1200, 1986) State law reference—Criminal mischief, MCA 45-6-101 et seq. Sec. 14.01.190. Entering at night prohibited. It is unlawful for any person, without written permission of the director of parks and recreation director of public service149, to enter the Sunset Hills Cemetery at any time from one-half hour after sunset to one-half hour before sunrise. (Code 1982, § 2.76.200; Ord. No. 1200, 1986) State law reference—Criminal trespass, MCA 45-6-201 et seq. Sec. 14.01.200. Speed limit and other motor vehicle restrictions. It is unlawful for any person to drive a motor vehicle, or any other vehicle, on any of the roadways in the cemetery at other than 15 miles per hour so as not to damage to roadways or any of the lots, and in accordance with the rules and regulations of the cemetery board. Such driver shall observe and be confined to the roadways as established. (Code 1982, § 2.76.210; Ord. No. 1200, 1986) State law reference—Vehicle operating requirements, MCA 61-8-301 et seq. Sec. 14.01.210. Dogs prohibited.150 It is unlawful for any person to release, cause, permit or bring a dog into the Sunset Hills Cemetery, unless prior approval is obtained from the cemetery superintendent or designee and the dog is part of a funeral procession or was owned by the deceased or the immediate family of the deceased. The cemetery superintendent or designee may impose reasonable conditions upon the superintendent's approval. This section shall not apply to service dogs authorized under the Americans with Disabilities Act. (Code 1982, § 2.76.220; Ord. No. 1432, § 1, 1996) 149 Should this title be changed to parks and recreation director? The title was changed in section 14.01.110 (Code 1982, § 2.76.120). Please change to "director of parks and recreation." 150 Add an exception for service dogs? Yes. PROOFS Page 247 of 977 Sec. 14.01.220. Penalties for violations.151 A. It is a misdemeanor for any person to violate any of the provisions of this chapter. B. Every person convicted of a misdemeanor for a violation of any of the provisions of this chapter shall be punished by a fine of not less than $5.00 or more than $500.00 with the following exceptions: 1. The minimum fine for violation of sections 14.01.180, 14.01.200 and 14.01.210 shall be $100.00; 2. Violations of section 14.01.180 shall be punishable by a fine not exceeding $500.00, or by imprisonment not exceeding six months, or both. C. Upon conviction, the court costs shall be assessed against the violator. (Code 1982, § 2.76.230; Ord. No. 1432, § 2, 1996) 151 Do you want to delete this section and allow the general penalty to apply? Keep as is. PROOFS Page 248 of 977 Chapter 15 RESERVED PROOFS Page 249 of 977 Chapter 16 ENVIRONMENT AND HEALTH* *State law reference—Health and safety, MCA 50-1-101 et seq.; environmental protection, MCA 75-1-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. NUISANCES* *State law reference—Public nuisance, MCA 45-8-111 et seq. Sec. 16.02.010. Purpose. A. The intent of this article is to provide a comprehensive mechanism for the identification and abatement of public nuisances within the city. B. The remedies provided for in this article are supplemental and complementary to all of the provisions of this Code, and state and federal law, and nothing herein shall be read, interpreted or construed in any manner to limit any existing right or power of the city to abate any and all public nuisances. (Code 1982, § 8.28.010; Ord. No. 1452, § 2, 1998) Sec. 16.02.020. Application. The provisions of this article shall apply to all property throughout the city wherein any of the conditions hereinafter specified are found to exist; provided, however, that any condition which would constitute a violation of this article but which is duly authorized under any other city, state or federal law, shall not constitute a violation. (Code 1982, § 8.28.020; Ord. No. 1452, § 2, 1998) Sec. 16.02.030. Responsibility for maintenance. Every owner, occupant, lessee or holder of any possessory interest of real property within the city is required to maintain such property so as not to violate the provisions of this article. The owner of the property shall remain liable for violations hereof regardless of any contract or agreement with any third party regarding such property or the occupation of the property by any third party. (Code 1982, § 8.28.030; Ord. No. 1452, § 2, 1998) Sec. 16.02.040. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Abatement" means the removal, stoppage, prostration, or destruction of that which causes or constitutes a nuisance, whether by breaking or pulling it down, or otherwise destroying, or effacing it. 2. "Owner" means the owner of record or any person with legal, financial or equitable interest in the property on which the alleged public nuisance exists at the time of the violation. 3. "Property" means any real property, premises, structure or location on which a public nuisance is alleged to exist. 4. "Public nuisance" means any fence, wall, shed, deck, house, garage, building, structure or any part of any of the aforesaid; or any tree, pole, smokestack; or any PROOFS Page 250 of 977 excavation, hole, pit, basement, cellar, sidewalk subspace, dock; or any lot, land, yard, premises or location which in its entirety, or in any part thereof, by reason of the condition in which the same is found or permitted to be or remain, shall or may endanger the health, safety, life, limb or property, or cause any hurt, harm, inconvenience, discomfort, damage or injury to any one or more individuals in the city, in any one or more of the following particulars: a. By reason of being a menace, threat and/or hazard to the general health and safety of the community. b. By reason of being a fire hazard. c. By reason of being unsafe for occupancy, or use on, in, upon, about or around the aforesaid property. d. By reason of lack of sufficient or adequate maintenance of the property, and/or being vacant, any of which depreciates the enjoyment and use of the property in the immediate vicinity to such an extent that it is harmful to the community in which such property is situated or such condition exists. The term "public nuisance" shall mean any nuisance designated in section 16.02.050. 5. "Summary abatement" means abatement of the nuisance by the city, or a contractor employed by the city, by removal, repair, or other acts without notice to the owner, agent, or occupant of the property except for the notice required by this article. (Code 1982, § 8.28.040; Ord. No. 1452, § 2, 1998) Sec. 16.02.050. Public nuisances152. A. The following are declared to be public nuisances: 1. Any building or structure which meets the definition of an unsafe building or structure as provided in section 116 102 of the InternationalUniform Building Code, or any successor provision, adopted pursuant to section 10.02.010. __ Any building or structure which meets the definition of a dangerous building as provided in section 302 of the Uniform Code for the Abatement of Dangerous Buildings, or any successor provision, adopted pursuant to Bozeman Municipal Code Section 15.01.010. __ Any building or structure which meets the definition of a substandard building as provided in section 1001 of the Uniform Housing Code, or any successor provision, adopted pursuant to Bozeman Municipal Code Section 15.01.010. 2. Any violation of chapter 38 relating to the city's planning subdivision and zoning laws and regulations. 3. Any imminent life safety hazard which creates a present and immediate danger to life, property, health or public safety. B. The following may be declared to be public nuisances: 1. Any condition which constitutes an attractive nuisance whether within a structure or on the premises. 152 References in this section to the Uniform Codes should be changed to the appropriate sections of the International Codes. Note changes. PROOFS Page 251 of 977 2. Any building or place which has been operated or maintained in a manner that has resulted in repeated disruptive activities including, but not limited to, disturbances of the peace, public drunkenness, drinking in public, harassment of passersby, sale of stolen goods, public urination, theft, assaults, batteries, acts of vandalism, excessive littering, illegal parking, loud noises (particularly in late night or early morning hours), traffic violations, or police detentions and arrests. 3. Any condition which renders air, food or drink unwholesome, unsanitary or detrimental to health. 4. Any condition which poses a fire hazard. 5. Any condition in violation of chapter 8 (Animals). 6. The ownership, maintenance or operation of a dog or animal kennel without proper provisions for the protection of the surrounding properties from odor and sound generated by the kennel. 7. The keeping, storage, depositing or accumulation on the premises for an unreasonable period of time of any personal property or wastes, including, but not limited to, abandoned, wrecked, dismantled or inoperative vehicles, abandoned, wrecked, or dismantled boats or vessels, automotive parts and equipment, appliances, furniture, containers, packing materials, scrap metal, wood, building materials, junk, rubbish, debris, dirt, sand, gravel, concrete or other similar materials which is within the view of persons on adjacent or nearby real property or the public right-of-way and which is detrimental to the public health, safety and general welfare. However, building materials being used or to be used for a project of repair or renovation for which a building permit has been obtained may be stored for such period of time as is necessary to expeditiously complete the project. 8. Any public nuisance as defined in MCA 45-8-111 or otherwise recognized in law as constituting a public nuisance. (Code 1982, § 8.28.050; Ord. No. 1452, § 2, 1998) Sec. 16.02.060. Enforcement. The department of planning and community developmentzoning department153 shall have primary responsibility for the abatement of a public nuisance under this article. (Code 1982, § 8.28.060; Ord. No. 1452, § 2, 1998) Sec. 16.02.070. Summary abatement. A. Whenever a complaint is made to the department of planning department and community development of the existence of a public nuisance, as defined in section 16.02.040 or 16.02.050, the department of planning department and community development shall promptly cause to be inspected the property on which it is alleged that such public nuisance exists. Should the department of planning department and community development find that a public nuisance exists, and that the public health, safety or welfare may be in immediate danger, then summary abatement procedures shall be implemented and the department of planning department and community development may cause the nuisance to be removed or abated. The department of planning department and community development may notify the building inspector if the public nuisance involves a building that appears structurally unsafe. The building inspector, upon being notified by the department of planning department and community development, shall cause the 153 Is this now the department of planning and community development? Yes. PROOFS Page 252 of 977 building on which it is alleged such public nuisance exists to be inspected and submit a written report of such inspection and the findings to the department of planning department and community development. B. When summary abatement is authorized, notice to the owner, agent or occupant of the property is not required. Following summary abatement, the department of planning department and community development shall cause to be posted on the property liable for the abatement a notice describing the action taken to abate the nuisance. (Code 1982, § 8.28.710; Ord. No. 1452, § 2, 1998) Sec. 16.02.080. Abatement in other cases; notice. A. If, after inspecting the property on which the nuisance is reported, the department of planning department and community development declares the existence of a public nuisance, but the nature thereof is not such as to require the summary abatement of such nuisance, then, regular abatement procedures shall be followed. Photographs and reports of the findings and inspections shall be made and filed with the department of planning department and community development. B. The department of planning department and community development shall determine the individual, firm or corporation who, from the records in the clerk and recorder's office, appears to be the titled owner of the aforesaid property and immediately cause a written notice to be served on such individual, firm or corporation by personal service or by leaving a copy of the notice at the usual place of residence or business of such owner, or address of such owner shown in the clerk and recorder's records, or by copy mailed to such owner at such place or address by United States certified mail return receipt. If service of such written notice is unable to be perfected by any of the methods described in this subsection, the department of planning department and community development shall cause a copy of the aforesaid notice to be published in a newspaper of general circulation in the city, once a week for two consecutive weeks and shall further cause a copy of the aforesaid notice to be left with the individual, if any, in possession of such property on which it is alleged such public nuisance exists, or if there is no individual in possession thereof, the department of planning department and community development shall cause a copy of the notice to be posted at such structure, location or premises. The department of planning department and community development shall also determine from the clerk and recorder's office who the lienholder of the property, if any, as documented therein, is and cause a written notice to be served on such lienholder by United States mail return receipt. C. The aforesaid notice to the owner, and lienholder, if any, of the property shall state clearly and concisely the findings of the department of planning department and community development with respect to the existence of a public nuisance. The notice shall further state that unless the owner thereof shall cause the abatement of the public nuisance, pursuant to the orders contained in the department of planning department and community development's notice, the public nuisance shall be abated by the city at the expense of the owner. D. Any person who is the record owner of the premises, location or structure at the time an order pursuant to this article is issued and served upon said person, shall be responsible for complying with that order, and liable for any costs incurred by the city therewith, notwithstanding the fact that such person conveys such person's interests in the property to another after such order was issued and served. E. It shall not be a defense to the determination that a public nuisance exists that the property is boarded up or otherwise enclosed. (Code 1982, § 8.28.080; Ord. No. 1452, § 2, 1998) PROOFS Page 253 of 977 Sec. 16.02.090. Abatement by owner. A. Within 30 days after the posting and mailing of a notice to abate a nuisance, the owner, agent of the owner, or individual in possession of the affected property shall remove and abate such nuisance or show that no nuisance in fact exists. Such showing shall be made by filing a written statement that no nuisance exists. The statement shall be filed with the department of planning department and community development. B. The department of planning department and community development, upon written application by the owner within the 30-day period after the notice has been served, may grant additional time for the owner to effect the abatement of the public nuisance, provided that such extension is limited to a specific time period. (Code 1982, § 8.28.090; Ord. No. 1452, § 2, 1998) Sec. 16.02.100. Appeal procedures; hearing. A. The owner or occupant of the property who has been served with a notice pursuant to this article that a public nuisance exists and that it must be abated within 30 days, may, within seven calendar days after receipt of such notice, make a written demand to the department of planning department and community development for a hearing on the question of whether a public nuisance in fact exists. The hearing shall be held at the next scheduled regular meeting of the city commission following receipt by the department of planning department and community development of the written demand, and at least two days' notice of the hearing shall be given to the individual who made the written demand for the hearing. B. The hearing shall be conducted by the city commission. The commission may amend or modify the notice and/or order, or extend the time for compliance with the department of planning department and community development's order by the owner by such date as the majority of the commission may determine. C. The owner, agent of the owner, occupant and lienholder, if any, of the subject property shall be given the opportunity to present evidence to the commission in the course of the hearing. D. In those instances where the nuisance has been abated by the city, the commission shall have discretion to waive the cost of abating a nuisance, in whole or in part, if in the course of the hearing reviewing the decision, the commission finds that any of the following did not conform to the provisions of this article: 1. The notice to remove the nuisance; 2. The work performed in abating the nuisance; or 3. The computation of charges. (Code 1982, § 8.28.100; Ord. No. 1452, § 2, 1998) Sec. 16.02.110. Abatement by city. A. Should any public nuisance not be abated at the expiration of time stated in the notice/order or within such additional time as the department of planning department and community development or commission may grant, the department of planning department and community development shall have the authority to enter upon the property and abate the public nuisance found thereon. In abating such nuisance, the department of planning department and community development may go to whatever extent may be necessary to complete the abatement of the public nuisance and should it be practicable to salvage any material derived in the aforesaid abatement, the department of planning department and community development may sell the salvaged material at private or public sale at the best price obtainable and shall keep an PROOFS Page 254 of 977 accounting of the proceeds thereof. B. The proceeds, if any, obtained from the sale of any material salvaged as a result of an abatement of a public nuisance by the department of planning department and community development shall be deposited to the general fund of the city and any deficit between the amount so received and the cost of the abatement may be levied as an assessment against the property in question by the city commission and collected as any other assessment by the city; however, any other alternative collection method may be utilized by the city to recoup the deficit. Should the proceeds of the sale of such salvaged material exceed the cost of abatement, the surplus, if any, shall be paid to the owner of the property from which the public nuisance was abated when a proper claim to the excess is established. C. In abating a public nuisance, the department of planning department and community development may call upon any of the city departments or divisions for whatever assistance shall be deemed necessary or may by private contract cause the abatement of the public nuisance. D. The department of planning department and community development shall, after completing the removal and abatement, file a statement of costs with the department of finance. (Code 1982, § 8.28.110; Ord. No. 1452, § 2, 1998) Sec. 16.02.120. Notice of assessment--Appeal of charges. A. Upon receipt of the statement of costs from the department of planning department and community development, the department of finance shall mail to the owner of the property upon which the public nuisance has been abated notice of the amounts set forth in the statement plus an additional amount sufficient to defray the costs of the notice and stating that the city proposes to assess against the property the amount set forth in the notice and that objections to the proposed assessment must be made in writing and received by the department of finance within 20 days from the date of mailing such notice. Upon the expiration of the 20-day period, if no objections have been received by the finance department, the finance department shall enter that amount in the city liens docket which shall therefore constitute a lien against the property. B. If objections of either the property owner or their representative are received by the finance department prior to the expiration of the 20-day period, the finance department shall refer the matter to the department of planning department and community development for administrative review. C. Upon conclusion of administrative review, the department of planning department and community development shall make a written determination that the amount of the charges shall be canceled, reduced, or remain the same. A copy of this determination shall be furnished to the person making the objections together with a notice of such person's right to appeal to the city commission. D. If no appeal of a determination by the department of planning department and community development is filed within the time period allowed, a copy of the determination will be furnished to the finance department who shall then enter a lien in the amount determined by the department of planning department and community development in the city liens docket as provided in subsection A of this section. E. If a timely appeal is received by the city commission, a hearing shall be scheduled and held on the matter. If, after the hearing, the city commission determines that the proposed assessment does not comply with subsection G of this section, the city commission shall so certify to the finance department, and the proposed assessment shall be canceled. If, after the hearing, it is determined that the proposed assessment or any part of it is proper and authorized, the city commission shall so certify to the finance department who shall enter a lien in such amount as PROOFS Page 255 of 977 determined appropriate by the city commission, in the lien docket as provided in subsection A of this section. F. The determination of the city commission is a final administrative decision. G. The department of planning department and community development, in administrative review, or the city commission, on appeal, may reduce or cancel a proposed assessment if it is determined that: 1. Any of the following did not conform to the provisions of this article: a. The notice to remove the nuisance; or b. The work performed in abating the nuisance; or c. The computation of charges; or 2. The owner of the property was eligible for a waiver of costs under section 16.02.140. H. The department of planning department and community development, in administrative review, or the city commission, on appeal, may reduce a proposed assessment by eliminating the civil penalty portion of the invoice if it is determined that: 1. The current owner was not in possession of the property at the time the notice required in section 16.02.080 was posted; or 2. The owner did not receive the notice to remove the nuisance, did not have knowledge of the nuisance and could not, with the exercise of reasonable diligence, have had such knowledge. I. If, after a lien has been entered in the docket of city liens, there is a written request of an owner who alleges that the owner did not receive notice of the proposed assessment, the finance department shall refer the matter for review pursuant to subsection B of this section. J. The lien may be canceled or reduced by the department of planning department and community development, in administrative review, or the city commission, on appeal, if it is determined that the owner did not receive notice of the proposed assessment, did not previously have knowledge of the lien or of the nuisance abatement work constituting the basis of the lien, could not, in the exercise of reasonable care or diligence, have had such knowledge, and in addition, that the circumstances are such that a reduction or cancellation of the charges would have been appropriate had the matter been reviewed pursuant to this section prior to assessment. Upon receipt of a certification from the city commission, pursuant to subsection E of this section, the finance department shall cancel or reduce the lien if required by the determination of the department of planning department and community development and/or city commission. (Code 1982, § 8.28.120; Ord. No. 1452, § 2, 1998) Sec. 16.02.130. Personal liability of owner. The person who is the owner of the property at the time at which the notice required under section 16.02.080 is posted shall be personally liable for the amount of the assessment including all interest, civil penalties, and other charges. (Code 1982, § 8.28.130; Ord. No. 1452, § 2, 1998) Sec. 16.02.140. Overhead charge; civil penalties. A. Whenever a nuisance is abated by the city, the department of planning department and community development shall keep an accurate account of all expenses incurred, including an overhead charge of 25 percent for administration and a civil penalty of $200.00 for each nuisance abated. B. When the city has abated a nuisance maintained by any owner of real property, for PROOFS Page 256 of 977 each subsequent nuisance that is abated by the city within two consecutive calendar years concerning real property owned by the same person, an additional civil penalty of 50 percent, minimum of $50.00, of the cost of abatement shall be added to the costs, charges and civil penalties provided for in subsection A of this section. The civil penalty shall be imposed without regard to whether the nuisances abated by the city involve the same real property or are of the same character. (Code 1982, § 8.28.140; Ord. No. 1452, § 2, 1998) ARTICLE 3. ABANDONED OR JUNKED VEHICLES* *State law reference—Removal and sale of abandoned vehicles, MCA 61-12-401 et seq. Sec. 16.03.010. Leaving abandoned, wrecked or junked vehicles on private property prohibited when; removal. A. It is unlawful to park, store or leave, or permit parking or storing of any licensed or unlicensed motor vehicle or any kind, or part thereof, for a period of time in excess of 72 hours, which is in rusted, wrecked, junked, partially dismantled or inoperative or abandoned condition, whether attended or not, upon any private property within the city limits, unless it is completely enclosed within a building, or unless it is in connection with a business enterprise lawfully situated and licensed for same. B. The accumulation and storage of two or more of such vehicles or part thereof as hereinbefore defined on private property shall constitute a nuisance, detrimental to the health, safety and welfare of inhabitants of the city, and it shall be the duty of the registered owner of such vehicle or part thereof, and it shall also be the duty of the owner of the private property, or lessee or other person in possession of private property upon which such vehicle or part thereof is located, to remove same from the city limits, or to have the same housed in a building where it will not be visible from the street. (Code 1982, § 10.64.010) Sec. 16.03.020. Removal notice--To owner of vehicle or land. A. It shall be the duty of the director of public welfare planning and community development to give written notice to the registered owner of any motor vehicle or part thereof which is in violation of section 16.03.010, or to give such notice to the owner or lessee of private land upon which the motor vehicle or part thereof is situated, giving notice that the vehicle or part thereof violates section 16.03.010 and demanding that the motor vehicle or part thereof be removed from the city limits within 72 hours from the time of service of notice, or that within 72 hours same may be housed in a building where it will not be visible from the street. The notice may be given by personal service, or by certified mail, with a return receipt requested. B. Written notice required by this section shall be deemed to have been given (i.e., constructive notice) when the registered owner of the motor vehicle or part thereof, or the owner, lessee or other person in possession of private property concerned herein either: 1. Refuses to accept the prepaid United States mail certified letter from the city and the letter is returned from the post office marked "refused"; or 2. The person to be notified is present in the city but the notification letter is returned marked "unclaimed" by the post office, in which event notice by the city may be made by affixing the letter in a conspicuous place at the main entrance or to the front door of the residence of such person. (Code 1982, § 10.64.020) PROOFS Page 257 of 977 Sec. 16.03.030. Same--Public posting required when; form. A. After diligent search and inquiry by the director of public welfare planning and community development, no written notice as in section 16.03.020 shall be required where the registered owner of such vehicle or part thereof or the owner of the private property or lessee or other person in possession of private property upon which such vehicle or part thereof is located cannot be found or determined, but instead a public notice shall be posted by the city clerk in three public places in the city for five consecutive days. B. Such public notice shall include, among other information: "Public Notice; To Whom It May Concern," date, legal description of the situs, address of same, a full description of the motor vehicle or part thereof, when available, the last known owner of the vehicle and/or owner of the realty or last known person in possession of the situs, and the date from or approximate period of time during which the nuisance has existed. (Code 1982, § 10.64.030) Sec. 16.03.040. Removal of vehicle by city or contractor authorized when; costs. In the event that any of the aforesaid persons, whether an individual, firm or corporation, fails, neglects or refuses to remove the abandoned, wrecked or junked vehicle or part thereof, or house same in the building as provided in section 16.03.010, and abate the nuisance after the required notice, the city, its agent or contractor may remove the vehicle or part thereof at the cost not to exceed $25.00 and a minimum cost of five dollars as determined by the city; which cost shall, if in the best interests of the city as determined by the city manager, be collected from the registered owner of such vehicle or part thereof or the owner of the private property or lessee or other person in possession of private property upon which such vehicle or part thereof is located. Ownership of any vehicle or part thereof removed by the city, its agent or contractor shall, upon such removal, be vested in the city, its agent or contractor, as applicable. (Code 1982, § 10.64.040) Sec. 16.03.050. Contract for removal; authority of city manager. The city manager is authorized to enter into a written agreement with a duly licensed junk dealer for the removal of abandoned, wrecked or junked vehicles or part thereof under this article wherein the consideration for the services of the junk dealer shall be the vehicle or part thereof at no expense to the city. The junk dealer, before entering into contract with the city or being appointed its agent or contractor in reference to sections 16.03.040 and 16.03.050, shall furnish evidence of public liability insurance, to adequately protect such agent or contractor and the city, deemed reasonable in the opinion of the city manager. In the event a qualified and suitable junk dealer is not available to contract with or act as the city's agent or contractor as provided herein, the city manager is authorized to contract with the lowest responsible bidder to provide for the removal from private property of abandoned, wrecked or junked vehicles or part thereof under section 16.03.040. (Code 1982, § 10.64.050) ARTICLE 4. WEED ABATEMENT* *State law reference—Control of nuisance weeds within municipality, MCA 7-22-4101. Sec. 16.04.010. Cutting weeds and vegetation required; notice; failure deemed misdemeanor. Any person who is the owner of or agent for any lot or parcel of land within the city limits, who permits or suffers to exist upon, in front of, or along such premises so owned by said person or for PROOFS Page 258 of 977 which said person is the agent, any growth of weeds or vegetation154, or any tree or shrub of which the limbs or branches extend over any public sidewalk at a height of less than seven feet above such sidewalk, shall be deemed guilty of maintaining a nuisance, and if such owner or agent neglects or refuses to cut and destroy any such growth of weeds or vegetation, or to cut away such branches, within ten days after being notified in writing by the city engineer to cut the same, the owner or agent shall be deemed guilty of a violation of this article, and upon conviction shall be punished as for a misdemeanor. (Code 1982, § 8.36.010) Sec. 16.04.020. Abatement by city authorized when; assessment of costs. In case any nuisance as defined in section 16.04.010 exists upon, in front of or along any lot or parcel of land within the city, whether such lot or parcel of land is occupied or unoccupied, the city engineer, instead of prosecuting such owner or agent, may cause such nuisance to be abated either after notice or immediately without notice, as the necessity therefor in each case in the city engineer's judgment may warrant, either of which shall be done at the expense of the owner, and the city commission may specially assess such expense to such property as a tax, which shall be collected as other taxes are collected. (Code 1982, § 8.36.020) ARTICLE 5. TREES AND OTHER VEGETATION DIVISION 1. GENERALLY Secs. 16.05.010--16.05.140. Reserved. DIVISION 2. TREE MAINTENANCE DISTRICT Sec. 16.05.150. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Maintenance" means the planting, pruning and removal of trees. Routine watering does not come within the definition of maintenance as used in this division. (Code 1982, § 12.14.010; Ord. No. 1311, § 1, 1990) Sec. 16.05.160. Method of planting and maintaining trees. All planting and maintenance of trees in all public places, rights-of-way and parks to be done within the district or districts created by the city may be done by contract or by forces employed by the city, or by both, in such manner as the commission may elect. (Code 1982, § 12.14.020; Ord. No. 1311, § 2, 1990) Sec. 16.05.170. Method of paying for maintenance. A. The city commission shall estimate, as near as practicable, the cost of the maintenance in each established district annually, before the first Monday in September. The commission shall pass and finally adopt a resolution specifying the district assessment option and levying and assessing all the property within each established district. B. The resolution levying the assessment to defray the cost of maintenance shall 154 This is rather vague. Do you want a height limitation for weeds? Keep as is for now. PROOFS Page 259 of 977 contain or refer to a list in which shall be described the lot or parcel of land assessed, with the name of the owner thereof if known, and the amount levied thereon set opposite. C. Such resolution shall be kept on file in the office of the city clerk of the commission for public inspection. D. A notice of intent to adopt such resolution, signed by the city clerk of the commission, stating that the resolution levying the special assessment to defray the cost of maintenance in each established district is on file in the city clerk of the commission's office and subject to inspection for a period of five days, shall be published at least once in a newspaper published in the city. The notice shall state the time and place at which objections to the final adoption of the resolution will be heard by the commission. The time for the hearing shall be not less than five days after the publication of the notice. E. At the time so set, the commission shall meet and hear all objections which may be made to such assessment or any part thereof and may adjourn from time to time for that purpose and may by resolution modify such assessment in whole or in part. F. A copy of the resolution, certified by the city clerk, must be delivered to the city treasurer and the assessments shall be placed upon the tax roll and collected in the same manner as other taxes and assessments. (Code 1982, § 12.14.030; Ord. No. 1311, § 3, 1990; Ord. No. 1429, § 1, 1996) Secs. 16.05.180--16.05.290. Reserved. DIVISION 3. TREE REGULATIONS Sec. 16.05.300. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: When not inconsistent with the context, words used in the present tense include the future, words in the plural include the singular, and words in the singular include the plural. The word "shall" is mandatory and not merely directory. 1. "Board" means the appropriate advisory board, such as cemetery, park or tree board, appointed by the city commission and charged with the overseeing of a particular public area. 2. "City forester" means the superintendent in charge of forestry or designee, assigned as part of the professional staff of the forestry division to implement this division and carry out its enforcement. 3. "Hazard" means a tree, or parts thereof, that by some natural cause or accident, becomes an immediate threat to life or property. 4. "Large tree" means trees attaining a mature height of 25 feet. 5. "Maintenance or maintaining" means and includes but is not limited to pruning, fertilization, insect and disease control, guying, cabling, bracing and repair of trees. __ "Person" means any individual, corporation, partnership, joint venture, association, or any group of organized persons, including state and local governmental agencies thereof. 6. "Public area" means Sunset Hills Cemetery, public ways, city parks, and all other lands owned, leased, managed or occupied by the city. 7. "Public nuisance" means any tree or shrub or part thereof upon private or public PROOFS Page 260 of 977 property which: a. Is dead or dying; b. Is interfering with the use of public property by reason of its location or condition; c. By reason of location or condition constitutes an imminent danger to the health, safety or welfare of the general public or which obstructs the free safe passage of pedestrian or vehicular traffic, or obstructs a streetlight or sight triangle; or d. Is harboring insects or diseases which reasonably may be expected to injure or harm other trees or shrubs. 8. "Public way" means all city property deeded or recorded as public streets, roads, boulevards, alleys, sidewalks and parking strips. 9. "Sight triangle" means the area on the public way as described in the Bozeman zoning code. 10. "Small tree" means trees attaining a mature height of less than 25 feet. 11. "Street level" means the highest point of elevation of the finished surface of the street. 12. "Street tree" means trees planted in the public way. 13. "Tree service business" means any person engaged in one or more of the following activities for profit: a. Diagnoses the condition of trees or shrubs; b. Recommends or supervises treatment of trees or shrubs; c. Treats trees or shrubs by feeding, fertilizing, pruning, topping, trimming, cutting or bracing; or d. Treats cavities in trees or shrubs. This definition shall include any person who is deemed by the city to be an "arborist" or "tree expert." The term "tree" shall also include a stump. (Code 1982, § 12.30.010; Ord. No. 1365, § 1, 1993) Sec. 16.05.310. City forester. A. The city forester with input from the tree advisory board shall have the following responsibilities and duties: 1. Administer, direct, manage, supervise and control all the various city tree programs; the forestry division; the establishment and maintenance of professional standards, training, titles and certification for forestry division personnel; and the forestry budget; 2. 155Within two years of the passage of the ordinance codified in this chapter, Develop and periodically review and revise, as necessary, the arboricultural specifications manual. This manual shall contain regulations and standards supplementing this division for establishing the valuation and appraisal of trees and shrubs, and the planting, maintenance and removal of trees and shrubs upon all city-owned 155 Note deletion of obsolete language. Ok. PROOFS Page 261 of 977 property; 3. Enforce or cause the enforcement of the provisions of this division. (Code 1982, § 12.30.020; Ord. No. 1365, § 1, 1993) Sec. 16.05.320. Master street tree plan. The city forester and the tree advisory board, with a public hearing and approval by the city commission, shall develop a master street tree plan which shall include but not be limited to a city- wide, street-by-street written evaluation of all space and site factors which aid in the determination of the tree species best suited to a particular planting site in regard to growing habits, shape, form, health, disease and pest resistance, conflicts with wires, lights, pavement, traffic, pedestrians, sidewalks, environmental pollution, sewers and space availability. The master street tree plan shall also include a plan for a cost-share tree program. From and after the effective date of the master street tree plan, or any amendment thereof, all planting shall conform thereto. (Code 1982, § 12.30.030; Ord. No. 1365, § 1, 1993) Sec. 16.05.330. Arboricultural specifications and standards. A. The following specifications and standards are established for the removal, planting, trimming, maintenance and care of trees and shrubs in the public area: 1. Removing. a. No person shall remove a tree or shrub without first obtaining a permit and paying any permit fee established by resolution of the city commission. b. All trees and shrubs which are marked for removal shall be completely removed from the growing site and disposed of in an authorized manner, as determined by the city forester. The stump shall be ground out to a depth suitable for future planting of turf. c. Any person may make a request to the city forester for a tree to be removed. The city forester's decision to approve removal of a tree shall be based on its detriment to the community due to disease, insect damage or other damage which creates a hazard to the public health, safety and welfare. Any person aggrieved by the city forester's decision to remove or not remove the tree may then apply to the appropriate board having jurisdiction over the public area to overturn the city forester's decision, except when the city forester determines the tree to be a hazard. The person may appeal the board's decision to remove or not remove the tree to the city commission. d. If said tree is to be removed, full compensation for the cost of removal and the value of the tree will be paid by the persons requesting removal. 2. Planting. a. No tree shall be planted without first obtaining a permit from the city forester and paying any permit fee established by resolution of the city commission. No tree with a mature height in excess of 25 feet shall be planted under any utility line. b. All street trees shall be planted in line with each other and at a spacing of a minimum of 30 feet on center for large trees and 25 feet on center for small trees. c. Single-stem canopy trees may be permitted in sight vision triangles, provided that mature trees do not significantly affect safe driving conditions and are maintained such that no canopy foliage exists below a height of 14 feet from PROOFS Page 262 of 977 street level. 3. Trimming. a. No person, except for city crews or licensed arborists with which the city has contracted for tree trimming services, shall trim a tree without first obtaining a permit and paying any permit fee established by resolution of the city commission. b. All trees and shrubs, including trees and shrubs on private property, which have branches overhanging a public street, shall have said branches trimmed to a minimum clearance height of 14 feet above the parking lane, unless the city forester determines the clearance at this location would be detrimental to public safety. All trees and shrubs, including trees and shrubs on private property, which have branches overhanging a public sidewalk, shall have said branches trimmed to minimum clearance height of nine feet, unless the city forester determines the clearance at this location would be detrimental to public safety. The city forester may waive the provisions of this section if the city forester determines that the tree or shrub does not interfere with public travel, obstruct the light of any streetlight, or endanger public safety. c. All dead wood, stubs, broken branches, badly formed branches, disease- infected and insect-infested branches interfering with public travel, lighting, existing buildings and traffic signs shall be removed with consideration given to the symmetry and beauty of the tree or shrub. d. Topping of trees is prohibited. 4. Maintenance and duty to avoid damage to trees and shrubs. a. No person or animal under any person's control shall break, injure, mutilate, kill or destroy any tree or shrub; permit any fire to injure any portion of any tree or shrub; or permit any toxic chemical to seep, drain or be emptied on or about any tree or shrub. b. During building operations, the builder shall erect suitable protective barriers around public trees and shrubs which may be injured. If any tree is damaged or must be removed during construction, the person causing the removal of a tree shall replace the tree with a tree of equal value or pay the value of the tree as established by the Bozeman Street Tree Analysis and Recommendations, dated December 11, 1990, and amendments thereto, until updated through adoption of the arboricultural specifications manual. c. It shall be the duty of the abutting property owner and tenant to maintain all street trees and vegetative growth in front of and adjoining their property and keep them free of becoming a public nuisance or hazard. 5. Fastening materials to trees and shrubs. No person shall fasten any sign, rope, wire or other materials to or around or through any public trees or shrubs without obtaining written permission from the city forester, except in emergencies such as storms or accidents. 6. Public utilities. Public utility work affecting trees or shrubs shall be limited to the actual necessities of the service of the company and such work shall be done in a neat and professional manner and according to the arboricultural specifications manual. The city forester may supervise the work performed and has the authority to stop work if not in accordance with the arboricultural specifications manual. The public utility shall replace any tree that dies or is removed with a tree of equal value PROOFS Page 263 of 977 or pay the value of the tree as established by the Bozeman Street Tree and Park Tree Analysis and Recommendations, dated January 1, 1996December 11, 1990156, and amendments thereto, until updated through adoption of the arboricultural specifications manual. 7. Planting, removal, maintenance and protection of trees and shrubs. All trees or shrubs shall be planted, removed, maintained and protected according to the master street plan and the arboricultural specifications manual. (Code 1982, § 12.30.040; Ord. No. 1365, § 1, 1993) Sec. 16.05.340. Hazards and public nuisances. A. General prohibition; duty to abate. It is unlawful for any person having supervision or control of any lot, tract, parcel of land or portion of it, occupied or unoccupied, improved or unimproved, within the city limits to permit or maintain on any such lot, tract, or parcel or part any tree, shrub, or part thereof which is a public nuisance or hazard and it shall be the duty of such person to promptly remove, eradicate or otherwise control such condition in accordance with this division and the arboricultural specifications manual. B. Trees and shrubs in public areas. If the city forester determines, with reasonable certainty upon inspection or examination, any tree or shrub exists in or upon any public area in a hazardous condition or as a public nuisance, the city forester shall immediately cause it to be treated, trimmed, removed or otherwise abated in such manner as to prevent the spread of the hazard. The manner in which the hazard shall be abated shall be determined by the city forester. C. Trees and shrubs on private premises. If the city forester determines, with reasonable certainty, upon inspection or examination, that any tree or shrub exists in or upon any private premises in a hazardous condition or as a public nuisance, the city forester shall immediately, in writing, notify the owner or tenant having charge of such premises of the existence of the public nuisance or hazard and issue said owner or tenant an order detailing the requirements of and the reasons for the abatement to be completed within a reasonable time to be specified in the order, but not less than 15 days. If the owner cannot be found, a copy of said notice shall be placed upon said infected tree or shrub. The owner may appeal the order of the city forester to the city commission within the time specified for abatement in the order. The appeal shall be filed with the city clerk and the appeal shall be placed upon the commission agenda as soon as practicable. Until a final determination by the city commission, work required to be done by the city forester shall not be required, and if the city commission sustains all or any part of the order, it shall set the time within which the work required to be done shall be completed. D. Abatement at owner's expense. In the event that the public nuisance or hazard is not abated by the date specified in the notice or specified by the city commission, the city forester is authorized to cause the abatement of said nuisance. The reasonable cost of such abatement shall be filed as a lien against the property on which the public nuisance or hazard was located. (Code 1982, § 12.30.050; Ord. No. 1365, § 1, 1993) Sec. 16.05.350. Cost of planting, removing, maintaining and protecting trees and shrubs. The entire cost of planting, removing, maintaining and protecting trees and shrubs on all public areas and public ways of the city, when done by city employees or their contractors at the director of the city forester, shall be borne by the city out of the tree maintenance district fund and from funds donated specifically for this purpose. When a private party other than the city, with 156 Is this the latest? 1-1-1996. PROOFS Page 264 of 977 appropriate permit, plants, removes, maintains or protects trees and shrubs, the private party shall incur all expenses. (Code 1982, § 12.30.060; Ord. No. 1365, § 1, 1993) Sec. 16.05.360. Tree service businesses and licensing. A. License required. Any person who engages in the tree service business within the corporate limits of the city shall first obtain International Society of Arboriculture (ISA) certification, or an equivalent, and obtain and maintain a city license in accordance with chapter 12. If a license or permit to engage in the tree service business is required by the state, the issuance of a state license shall be a prerequisite to the issuance of a city license. The licensee shall display the license to any of its customers or city officials upon demand. The city may suspend or revoke a license when the tree service business violates any provision of chapter 12, article 2; this division; any ordinance provisions relating to the health, safety and welfare of the citizens of the city; or secures any license by fraud or misrepresentation to include false or incorrect information on the license application. The procedure for license suspension or revocation is set forth in sections 12.02.180 and 12.02.190. B. Insurance and bond. Any applicant for a tree service business license shall provide, at the time of application, a certificate of insurance showing insurance coverage for general liability, automobile liability, worker's compensation, and other coverages required by law in minimum amounts set by the city commission resolution. The certificate of insurance shall name the city and its officials and employees as additional insured for work on public lands. The applicant shall also provide a street obstruction bond in an amount set by the city commission resolution for work to be performed within any public street, alley or right-of-way in the city. C. License exemptions. Any person acting within the scope of such person's employment with any public utility, with the city, or with any governmental entity shall be exempt from the licensing provisions of this division. However, the public utility or the governmental entity, except for the city, desiring to do work on trees or shrubs located in public areas shall be required to obtain a permit to do such work as required by section 16.05.330. D. Protection of utilities. A licensee shall, before commencing work on any tree or shrub, determine the location of utility facilities, including water and sewer lines, and shall be responsible for contacting any joint utility locator entity in operation for subsurface work or, if such entity is not in operation or does not provide service for above-ground work, each utility or entity owning such facilities. This section applies to overhead and underground facilities. E. Permit for removal of trees on public right-of-way. At least 48 hours prior to engaging in any work (except in the case of a hazard), a licensee shall apply for a permit to do any work on any tree or shrub which is located in any public area. The permit application shall be filed with the city manager or the city manager's designee on a form provided by the city. The application shall contain any information required by the city for processing the application, including the scope and nature of the work to be performed on the specified tree or shrub. The city shall issue the requested permit only if the proposed work complies with all applicable laws and ordinances, any master street tree plan, any urban forestry plan, and any arboricultural specification manuals adopted by the city and upon payment of permit fee as established by city commission resolution. F. Debris removal. A licensee shall clean the work site and remove any debris after completing any work on public or private property, including the removal of branches, twigs and chips. G. Stump removal. All stumps on public rights-of-way shall be removed to a depth of at least eight inches, and all holes remaining from the stump removal shall be filled with dirt and PROOFS Page 265 of 977 covered with appropriate groundcover. H. Power equipment. All power equipment used by a licensee shall include reasonable safety devices to protect employees and other persons. (Code 1982, § 12.30.070; Ord. No. 1365, § 1, 1993) Sec. 16.05.370. Enforcement. A. Authority of city forester to enter private premises. The city forester is charged with enforcement of this division and to that end may enter upon private premises at any reasonable times for the purposes of examining and inspecting any suspected public nuisance or hazardous tree or shrub in order to carry out duties assigned under this division; provided that the city forester first makes a reasonable effort to locate and notify the owner or other persons who have charge or control of premises and demand entry. B. Interference with the city forester or staff. No person shall prevent, delay or interfere with the city forester, or the city forester's assistants or agents, while engaged in or carrying out the execution or enforcement of this division. C. Penalty. Any person who violates any provision of this chapter or who fails to comply with any notice or order issued pursuant to the provisions of this chapter, upon a conviction or plea of guilty shall be fined in an amount not to exceed five hundred dollars or be imprisoned for any term not to exceed six months or both. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such hereunder. In addition to any penalty, the court, also, shall order restitution to the city for each tree or part thereof, unlawfully damaged, destroyed or removed. (Code 1982, § 12.30.080; Ord. No. 1365, § 1, 1993) ARTICLE 6. NOISE* *State law reference—Vehicle noise, MCA 61-9-401 et seq. Sec. 16.06.010. Purpose. The city commission hereby enacts the ordinance from which this article is derived to protect, preserve, and promote the health, safety, welfare, peace, and quiet of the citizens of the city through the reduction, control, and prevention of raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of reasonable persons of ordinary sensitivity. (Ord. No. 1539, § 1(8.30.010), 9-24-2001) Sec. 16.06.020. Findings. A. Loud and raucous noise degrades the environment of the city to a degree that: 1. It may be harmful to the health, welfare, and safety of its inhabitants and visitors; 2. It may interfere with the comfortable enjoyment of life and property reasonably expected in an urban environment; 3. It may cause or aggravate health problems. B. Both the effective control and the elimination of loud or raucous noise are essential to the health and welfare of the citizens and visitors of the city as well as to the conduct of the normal pursuits of life, including recreation, work and communication. C. The use of sound amplification equipment creates loud and raucous noise that may, in a particular manner and at a particular time and place, substantially and unreasonably invade the privacy, peace, and freedom of the citizens of and visitors to the city. PROOFS Page 266 of 977 D. Certain short-term easing of noise restrictions is essential to allow the construction and maintenance of structures, infrastructure, and other elements necessary for the physical and commercial vitality of the city. (Ord. No. 1539, § 1(8.30.020), 9-24-2001) Sec. 16.06.030. Scope. This article applies to the control of all sound originating within the jurisdictional limits of the city. (Ord. No. 1539, § 1(8.30.030), 9-24-2001) Sec. 16.06.040. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: __ Director of Public Safety means the director of the Department of Public Safety of the city of Bozeman or the director's designee. __ Director of Public Service means the director of the Department of Public Service of the city of Bozeman or the director's designee. 1. "Emergency" means any occurrence or set of circumstances involving actual or imminent physical trauma or property damage which demands immediate attention. 2. "Emergency work" means any work: a. Performed for the purpose of preventing or alleviating physical trauma or property damage; b. Restoring property to a safe condition following a public calamity; c. By private or public utilities when restoring utility service; or d. Performed to protect persons or property from exposure to danger or potential danger. 3. "Health" means an optimal state of physical, mental and emotional well-being and not merely the absence of disease. 4. "Person" means any individual, firm, association, partnership, joint venture, corporation or public entity, including but not limited to federal, state or city government. 5. "Public right-of-way" means any street, avenue, boulevard, highway, sidewalk, alley, or similar place which is normally accessible to the public which is owned or controlled by a government entity. 6. "Public space" means any real property or structure on real property, owned by the government and normally accessible to the public, including but not limited to parks and other recreational areas. For the purposes of this article, public space will also include any property, whether publicly or privately owned, used by members of the general public as a method of ingress, egress or for parking. (Ord. No. 1539, § 1(8.30.040), 9-24-2001) Sec. 16.06.050. Loud noises prohibited. A. It is unlawful to perform any of the following acts anywhere within the city's jurisdictional limits: PROOFS Page 267 of 977 1. Sound amplifying equipment. Except as authorized in section 16.06.070.A.5, using operating or permitting the use of any radio receiving set, musical instrument, "boombox," CD Player, radio, television, phonograph or other machine or device for the production or reproduction of sound in such a manner as to disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 2. Yelling and shouting. Except as authorized in section 16.06.070.A.5, yelling, shouting, hooting, or whistling on public rights-of-way at any time as to annoy or disturb the quiet, comfort, or repose of any normally sensitive and reasonable person. 3. 157Animals. Owning, keeping, having in possession or harboring any animals which, by frequent or habitual howling, barking, meowing, squawking, or any other noise as to disturb the quiet, comfort, or repose of any normally sensitive and reasonable person, or as defined in section 8.02.010.A.13.d. 4. Defect in vehicle or load. Operating any truck, trailer, automobile, motorcycle, or vehicle so out of repair or so leaded in such a manner as to create loud and unnecessary grating, grinding, rattling or other noises. 5. Loudspeakers, amplifiers, public address systems. Except as authorized in section 16.06.070.A.5, the use or operation of any loudspeaker, amplifier, public address system or any similar instrument or equipment whose purpose is to amplify or make sound louder in a fixed or movable position or mounted upon any sound truck for the purpose of giving instructions, directions, talks, addresses, lectures, or transmitting music to any person or assemblages, in or on any public right-of-way within city areas in such a manner as to disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 6. Loud or unusual noises. Making or causing to be made any excessive or unusually loud noise or any noise which is so harsh, prolonged, unnatural, or unusual in time and place as to annoy, disturb, injure, or endanger the comfort, repose, health, peace or safety of any reasonable person of normal sensitivity within the limits of the city. (Ord. No. 1539, § 1(8.30.050), 9-24-2001) Sec. 16.06.060. Loud noises prohibited in residential areas. A. 158Except as authorized in section 16.06.070, it is unlawful to perform any of the following acts within areas of the city zoned R-1, R-2, R-2-a, R-3, R-3-a, R-4, R-O, RMH, R-S or PLI: 1. Non-emergency signaling devices. Sounding any horn or signaling device on any truck, automobile, motorcycle, or other vehicle, including but not limited to the use of backup beepers, except as a warning signal. 2. Exhausts. Discharging into open air the exhaust of any steam engine, stationary internal combustion engine, motorboat, or motor vehicle, except through a muffler or other device which will effectively prevent loud or explosive noises. 3. Construction projects. Operating equipment or performing any construction or repair work on buildings, structures, streets, highways, bridges or other public rights-of-way or operating any pile driver, steam shovel, pneumatic hammer, 157 Animal noise is also covered in Code § 6.04.010. Keep both, but cross reference. 158 I don’t see the R-2-a or R-3-a districts in your UDO. Delete. PROOFS Page 268 of 977 derrick, steam electric hoist, generator, pump or other construction-type device in such a manner which may disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 4. Loading, unloading or opening containers. Loading, unloading, opening or other handling of boxes, crates, containers, garbage containers or other objects in such a manner as to disturb the quiet, comfort or repose of any normally sensitive and reasonable person. 5. Snow blowers, leaf blowers or similar devices. Operating any noise-creating blower, power fan, or any internal combustion engine, the operation of which causes noise due to the explosion of operating gases or fluids, including but not limited to snow blowers or other snow removal devices, leaf blowers, chainsaws, or lawnmowers in a manner which may disturb the quiet, comfort or repose of any normally sensitive and reasonable person. B. The activities described in subsection A of this section are authorized in areas within the city zoned B-1, B-2, B-3, M-1, M-2, HMU, UMU and BP without restrictions set forth in section 8.03.060 16.06.070.159 (Ord. No. 1539, § 1(8.30.055), 9-24-2001) Sec. 16.06.070. Exceptions. A. Subject to sections 16.06.050 and 16.06.060.A., the following activities will be authorized as follows: 1. Non-emergency signaling devices. Except as authorized in part 3 subsection A.3160 of this section, the sounding or permitting of any sounding of amplified signals from any bell, chime, siren, whistle or similar device intended primarily for non- emergency purposes, including but not limited to back-up beepers, will be authorized at any time between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 2. Construction projects. Operating equipment or performing any construction or repair work as defined in section 16.06.060 will be authorized between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. The director of public service may authorize temporary relief from this section upon application and a showing of extraordinary need for the use of this equipment beyond or outside these hours. Such authorization will clearly set forth the dates and hours of the authorized use as well as any special conditions needed to mitigate potential negative noise impacts. 3. Loading, unloading or opening containers. The loading, unloading, opening or other handling of boxes, crates, containers, solid waste containers or other similar objects, including but not limited to the collection of solid waste as defined in section 32.02.010, recyclables or compostable materials by either the city or a private contractor duly licensed by the Montana Public Service Commission for the collection and transportation of solid waste will be authorized provided the parties obtain and comply with any permits required by chapter 38. Should a permit not be required, this activity is authorized between the hours of 5:00 a.m. and 8:00 p.m. 159 What about UMU? Add. 160 Is this the correct provision that "part 3 of this section" was referring to? It appears so. Keep as in proof. PROOFS Page 269 of 977 from October 1 through March 30 and between 5:00 a.m. and 10:00 p.m. from April 1 through September 30. 4. Snow blowers, leaf blowers or similar devices. The operation of any equipment as defined above will be authorized between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 5. Outdoor events. Any outdoor gatherings, public dances, shows sporting events, and other similar outdoor events will be authorized provided the parties obtain any permits required by chapter 34, article 8 12.32. Should the event not require a permit, the gathering will be authorized between the hours of 6:00 a.m. and 8:00 p.m. from October 1 through March 30 and between 6:00 a.m. and 10:00 p.m. from April 1 through September 30. 6. Outdoor activities. Activities conducted on public playgrounds and public or private school grounds, which are conducted in accordance with the manner in which such spaces are generally used, including but not limited to the use of a city-owned park, swimming pool, skate park, ball fields, school athletic or school entertainment events. 7. Public work. Noise created in the performance of any work in the public right-of-way or on public space as defined herein which is reasonably necessary for the public benefit, welfare, convenience or safety, including but not limited to the maintenance of streets, parking lots, water and wastewater lines but excluding solid waste activities. B. Nothing in this section will be construed to allow activity which is prohibited under chapter 38. (Ord. No. 1539, § 1(8.30.060), 9-24-2001) Sec. 16.06.080. Emergency exemption. Any of the acts defined in sections 16.06.050, 16.06.060 and 16.06.070 which are performed for emergency work for the safety, welfare, and public health of the citizens of the city are exempted from the provisions of this article. (Ord. No. 1539, § 1(8.30.070), 9-24-2001) Sec. 16.06.090. Enforcement161. A. The director of public safety chief of police will have the primary responsibility for the enforcement of this article. Nothing in this article will prevent the director chief of police from obtaining voluntary compliance by way of warning, notice or education. B. A violation of this article will be punishable as follows: 1. First offense will be punishable by a fine of not more than $500.00 or six months in the county jail or both; 2. Second offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $100.00 or more than $500.00, a maximum of six months in the county jail or both; 3. Third offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $200.00 but in no event more than 161 Do you wish to use the general penalty instead? No. PROOFS Page 270 of 977 $500.00, a maximum of six months in the county jail or both; 4. 4th offense occurring within one year from the conviction of the first offense will be punishable by a minimum fine of not less than $350.00 but in no event more than $500.00, a maximum of six months in the county jail or both; 5. 5th offense occurring within one year from the conviction of the first offense will be punishable by a fine of $500.00, a maximum of six months in the county jail or both. C. Nothing in this article will be construed to prevent or interfere with an individual's constitutional right to free speech. If a person's exercise of a constitutional right to free speech would violate this article, that person must be ordered, and have the opportunity, to move, disperse, or otherwise remedy the violation prior to arrest or a citation being issued. (Ord. No. 1539, § 1(8.30.080), 9-24-2001) ARTICLE. SMOKING IN PLACES OF PUBLIC ASSEMBLY162 8.32.010. Locations where smoking is prohibited. Except in a smoking room regularly designated and approved by the chief of the fire department, smoking in any part of any opera house, theater, moving picture house, playhouse, auditorium or dancehall, while any performance, entertainment, lecture, show, play, exhibition or dance is in progress, is prohibited. (Code 1982, § 8.32.010) 8.32.020. Enforcement authorized when--violation deemed misdemeanor. The chief of police or any policeman, the chief of the fire department or any fireman under his direction, and each or any of them, is and are directed, empowered and required promptly to stop any performance, exhibition, entertainment, concert, play, lecture, show or dance, when, in the judgment of them, or any of them, such action is necessary for public safety or for the enforcement of the provisions of this chapter, and forthwith to arrest or to eject from the building, or both, each and every person violating the provisions of this chapter; and every person convicted in the police court of a violation of this chapter shall be guilty of a misdemeanor. (Code 1982, § 8.32.020) ARTICLE 7. SMOKING IN ENCLOSED PUBLIC PLACES AND PLACES OF EMPLOYMENT* *State law reference—Montana Clean Indoor Air Act, MCA 50-40-101 et seq. Sec. 16.07.010. Legislative findings and intent. A. The city commission finds that: 1. Pursuant to article II, section 3 of the Montana Constitution, all persons have certain inalienable rights that include a right to a "clean and healthful environment." Article IX, section 1 of the Montana Constitution further provides "the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations." With respect to these rights and correlating duties, it is the intent of the city commission and the citizens of the city in enacting this article to prescribe requirements concerning smoking tobacco in enclosed public places and in places of employment to provide a clean and healthful environment and to protect the health and safety of people from exposure to environmental tobacco smoke. 162 This chapter appears to be superseded by Code ch. 8.48 and the fire code. Yes. Delete. PROOFS Page 271 of 977 2. Numerous studies have found that tobacco smoke is a major contributor to indoor air pollution and that breathing second-hand smoke (also known as environmental tobacco smoke) is a cause of disease in healthy non-smokers, including heart disease, stroke, respiratory disease, and lung cancer. The United States Surgeon General has determined that second-hand smoke is responsible for the early deaths of 65,000 Americans annually. 3. Reliable scientific studies, including studies by the Surgeon General of the United States and studies commissioned and assessed by the U.S. Environmental Protection Agency, have shown that breathing secondhand smoke is a significant health hazard to non-smokers, elderly people, individuals with cardiovascular disease, and individuals with impaired respiratory function, including asthmatics and those with obstructive airway disease. Children exposed to second-hand smoke have an increased risk of asthma, respiratory infections, Sudden Infant Death Syndrome, development abnormalities, and cancer. 4. The Public Health Service's National Toxicology Program has listed second-hand smoke as a known carcinogen (U.S. DHHS, 2000 citing Cal. EPA 1997). 5. The United States Surgeon General has determined that the simple separation of smokers and non-smokers within the same air space may reduce, but does not eliminate, the exposure of non-smokers to second-hand smoke. The Environmental Protection Agency has determined that second-hand smoke cannot be reduced to safe levels in businesses by high rates of ventilation. Air cleaners, which are only capable of filtering the particulate matter in odors and smoke, do not eliminate the known toxins in second-hand smoke. 6. A significant amount of second-hand smoke exposure occurs in the workplace. Employees who work in smoke-filled businesses suffer 25 percent to 50 percent higher risk of heart attack and higher rates of death from cardiovascular disease and cancer, as well as increased acute respiratory disease and measurable degrees in lung function. 7. Smoke-filled work places result in higher worker absenteeism due to respiratory disease, lower productivity, higher cleaning and maintenance costs, increased health insurance rates, and increased liability claims for disease related to exposure to second-hand smoke. 8. Numerous economic analyses examining restaurant and hotel receipts and controlling for economic variables have shown either no difference or a positive economic impact after enactment of laws requiring work places to be smoke-free. Creation of smoke-free work places is sound economic policy and provides the maximum level of employee health and safety. 9. Smoking is a potential cause of fires; cigarette and cigar burns and ash stains on merchandise and fixtures causes economic damage to businesses. 10. Accordingly, the city commission and the citizens of Bozeman find and declare that the purposes of this article are: a. To protect the public health and welfare by prohibiting smoking in enclosed public places and places of employment; and, b. To guarantee the right of non-smokers to breathe smoke-free air and to recognize that the need to breathe smoke-free air shall have priority over the desire to smoke. 11. The city commission finds that it is within their police powers to implement and PROOFS Page 272 of 977 enforce the provisions of this article. 12. The city commission further finds that it is also within their self-government powers to implement and enforce the provisions of this article and to supersede any conflicting state statutory provisions pursuant to MCA 7-1-105. (Ord. No. 1574, § 1(8.48.010), 9-9-2002) Sec. 16.07.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Bar" means an establishment that is devoted to the serving of alcoholic beverages for consumption by guests and/or patrons on the premises and in which the serving of food is only incidental to consumption of alcoholic beverages, including but not limited to taverns, night clubs, cocktails, lounges and cabarets. This definition is further limited by section 16.07.020.A.6. 2. "Casino" means an establishment whose primary use or activity is gambling, either in the form of gambling machines, card games, or other licensed gambling activity. In all instances, an establishment will be considered a casino for the purpose of this article if any of the following characteristics apply: a. The establishment is referenced as a casino by signage or by name; b. More than one card table is on the premises; c. 15 or more gambling machines are on the premises. 3. "Employee" means a person who is employed by an employer in consideration for direct or indirect monetary wages or profit, and a person who volunteers such person's services for a nonprofit entity. 4. "Employer" means a person, business, partnership, association, corporation, including a municipal corporation, trust, governmental entity, or nonprofit entity that employs the services of one or more individual persons. 5. "Enclosed public place" means an enclosed area to which the public is invited or in which the public is permitted, including but not limited to banks, bars, educational facilities, health care facilities, laundromats, public transportation facilities, reception areas, rest rooms, retail food production and marketing establishments, retail service establishments, retail stores, shopping malls, sports arenas, theaters, and waiting rooms. 6. "Incidental to consumption of alcoholic beverages" means that no more than 40 percent of the business's annual gross income from the operation may be from the sale of food. 7. "Place of employment" means an area under control of a public or private employer that employees normally frequent during the course of employment, including but not limited to work areas, employee lounges, restaurants, conference rooms, meeting rooms, class rooms, employee cafeterias, hallways and vehicles. 8. "Public function" means a gathering of persons for the purpose of deliberation, education, instruction, entertainment, amusement, or dining, where membership or specific invitation is a prerequisite to entry and where the event is not intended to be open to the public. 9. "Retailed tobacco store" means a retail store utilized primarily for the sale of tobacco PROOFS Page 273 of 977 products and accessories and in which the sale of other products is merely incidental. 10. "Smoking" means inhaling, exhaling, burning, or carrying any lighted cigar, cigarette, pipe, weed, plant, or other combustible substance in any manner or any form. (Ord. No. 1574, § 1(8.48.020), 9-9-2002) Sec. 16.07.030. Prohibition against smoking in enclosed public places and places of employment. Smoking is prohibited in all enclosed public places and places of employment, except as otherwise provided in this article. (Ord. No. 1574, § 1(8.48.030), 9-9-2002) Sec. 16.07.040. Exemptions to smoking prohibitions. A. The following are exempt from the provisions of this article: 1. Private functions and parties, or gatherings not advertised or accessible to the general public. Rooms or areas exempted must be fully separated by location or building construction such that the building areas remain smoke-free. 2. Private residences, except when used as a licensed child care, adult care, or health care facility. 3. Hotel or motel guest rooms or suites which are designated as smoking rooms. 4. Outdoor areas. 5. Retail tobacco stores. 6. Bars and casinos, provided that smoke from these places does not infiltrate into areas where smoking is prohibited under this article. (Ord. No. 1574, § 1(8.48.040), 9-9-2002) Sec. 16.07.050. Declaration of establishment as non-smoking. Not withstanding any other provision of this article, any owner, operator, manager or other person who controls any establishment described in this article may declare the entire establishment as a non-smoking establishment or a portion of the establishment as non-smoking. (Ord. No. 1574, § 1(8.48.050), 9-9-2002) Sec. 16.07.060. Notification. A. "No Smoking" signs or the international "No Smoking" symbol (consisting of a pictorial representation of a burning cigarette in a red circle with a red bar across it) shall be clearly, sufficiently, and conspicuously posted in every public place and place of employment where smoking is prohibited by this article, by the owner, operator, manager or other person in control of that place. B. Every public place and place of employment where smoking is prohibited by this article shall have posted at every entrance a conspicuous sign clearly stating that smoking is prohibited. C. All ashtrays and other smoking paraphernalia shall be removed from the area where smoking is prohibited by this article by the owner, operator, manager or other person in control of the area. (Ord. No. 1574, § 1(8.48.060), 9-9-2002) PROOFS Page 274 of 977 Sec. 16.07.070. Nonretaliation. No person or employer shall discharge, refuse to hire, or in any manner retaliate against any employee, applicant for employment, or customer because that employee, applicant or customer exercises any rights afforded by this article or reports or attempts to prosecute a violation of this article. (Ord. No. 1574, § 1(8.48.070), 9-9-2002) Sec. 16.07.080. Other applicable laws. This article may not be interpreted or construed to permit smoking where it is otherwise restricted by other applicable laws. (Ord. No. 1574, § 1(8.48.080), 9-9-2002) Sec. 16.07.090. Enforcement. A. This article shall be enforced by the chief of police director of public safety163 or an authorized designee. B. Notice of the provisions of this article shall be given to all applicants for a city business license. C. Any citizen who desires to register a complaint under this article may initiate enforcement with the chief of police director of public safety or an authorized designee. D. The police department of public safety164 and/or the city-county health department, or their designees, shall, while an establishment is undergoing otherwise mandated inspections, inspect for compliance with this article. E. An owner, manager, operator or employee of an establishment regulated by this article shall inform persons violating this article of the appropriate provisions thereof. F. Notwithstanding any other provision of this article, an employee or private citizen may bring legal action to enforce this article. G. In addition to the remedies provided by the provisions of this article, the chief of police director of public safety, the city manager, the city attorney, or any person aggrieved by the failure of the owner, operator, manager, or other person in control of the public place or place of employment to comply with the provisions of this article may apply for injunctive relief to enforce those provisions in any court of competent jurisdiction. H. Upon a complaint being filed with the city, the city may request records and other documents related to the exemptions under section 16.07.040, and the owner, manager or operator of the business claiming an exemption shall provide the records and/or documents requested by the city. (Ord. No. 1574, § 1(8.48.090), 9-9-2002) Sec. 16.07.100. Violations and penalties. A. It shall be unlawful for any person to smoke in any area where smoking is 163 Is this the correct title? Should it be police chief instead? Change “director of public safety” to “chief of police.” Also, there are numerous other references in this article to “director” that need to be changed to “chief of police.” 164 Is this the correct title? Should it be police chief instead? Change “director of public safety” to “chief of police.” Also, there are numerous other references in this article to “director” that need to be changed to “chief of police.” PROOFS Page 275 of 977 prohibited under this article and such person shall be subject to a fine of not exceeding $100.00. B. A person who owns, managers, operates, or otherwise controls a public place or place of employment and who fails to comply with the provisions of this article shall be guilty of a misdemeanor, punishable by: 1. A fine not exceeding $100.00 for a first violation. 2. A fine not exceeding $200.00 for a second violation within one year. 3. A fine not exceeding $500.00 for each additional violation. C. In addition to the fines established by this section, a violation of this article by a person who owns, manages, operates or otherwise controls a public place or place of employment may result in the suspension or revocation of any permit or license issued to a person for the premises on which the violation occurred. D. Each day on which a violation of this article occurs shall be considered a separate and distinct violation. (Ord. No. 1574, § 1(8.48.100), 9-9-2002) Sec. 16.07.110. State law superseded165. This article hereby supersedes the Montana Clean Air Act as set forth in 166M.C.A. title 5059, chapter 401, part 1 and 2 (MCA 50-40-101 et seq.), only to the extent this article provides more stringent restrictions inconsistent herewith, is hereby superseded. (Ord. No. 1574, § 1(8.48.110), 9-9-2002) ARTICLE . BARBERSHOPS167 8.08.010. Barbershop defined. "Barbershop," as used in this chapter, means and includes every place where shaving or hair- cutting is done for the public and every barber college or school where barbering is done, for either sex, within the city. (Code 1982, § 8.08.010) 165 The state law is preemptive, but it terminates September 30, 2009: Note change. 50-40-120. (Temporary) Part preemptive of stricter ordinance. The provisions of this part preempt adoption of an ordinance or regulation by a political subdivision that is stricter than the provisions of this part as to a place in which the ordinance or regulation applies or as to the penalty or remedy imposed for violation of the ordinance or regulation. (Terminates September 30, 2009--sec. 14, Ch. 268, L. 2005.) History: En. Sec. 7, Ch. 268, L. 2005. 166 The Act is now located in Title 50, chapter 40, part 1. There is also a part 2 on government offices and work areas that is not in that act. Note change. 167 Do you still enforce this chapter? Delete the chapter as the state Board of Barbers and Cosmetologists regulates these facilities and the local board of health does not ever inspect. PROOFS Page 276 of 977 8.08.020. Inspection and enforcement--health officer authority. The health officer is authorized, directed and empowered to inspect all barbershops within the city, and to enforce the rules and regulations hereinafter provided. All barbershops shall be open to the city health officer for inspection at any time during business hours. (Code 1982, § 8.08.020) 8.08.030. Cleanliness of equipment and supplies. All mugs, brushes, pincers, tweezers, needles and attachments for massage devices shall be sterilized after each time used and as frequently as necessary by immersion in boiling water, or in alcohol of not less than ninety-five percent strength, or in a twenty percent formaldehyde solution. Combs and hairbrushes shall be cleaned with soap and water at least once daily. No towel that is used on one patron shall be used again on another patron until laundered. All powdered alum or other powders shall be applied with clean towels, and the use of powder puffs and sponges in any form is prohibited. Every barbershop shall be provided with running hot and cold water conveniently located, and shall be connected with the sewers. (Code 1982, § 8.08.030) 8.08.040. Headrest covers and cuspidors. The headrest of every barber chair shall be covered with a fresh towel, or by clean new paper, for each individual customer. A strip of cotton or neckband must be placed around the patron's neck so that hair cloth does not come in contact with the neck. Cuspidors must be cleaned every day, and a disinfectant solution left in them at all times. (Code 1982, § 8.08.040) 8.08.050. Serving infected persons--conditions. No barber shall serve any patron whose face or skin is inflamed or broken out, or contains pus, unless all tools, mugs and utensils used upon said patron are immediately thereafter subjected to a thorough sterilization before being used again, and unless the barber so working shall immediately disinfect and sterilize his hands. (Code 1982, § 8.08.050) 8.08.060. Use of wood alcohol prohibited. The use of wood alcohol in any form or percent shall not be used (except as fuel) in any cosmetic or preparation used in any barbershop or on any patron. (Code 1982, § 8.08.060) 8.08.070. Posting of chapter regulations. The owner of every barbershop shall keep a copy of this chapter, to be furnished by the clerk of the city commission, or city health officer, posted in his place of business in a conspicuous place. (Code 1982, § 8.08.070) 8.08.080. Violation--penalty. Any person violating the provisions of this chapter shall be guilty of a misdemeanor. (Code 1982, § 8.08.080) PROOFS Page 277 of 977 ARTICLE . MEAT168 8.20.010. Definitions. For the purpose of this chapter, the following words, phrases, names and terms shall be construed respectively to mean: __ "Animals" means cattle, calves, sheep, swine and goats; __ "Carcass" means all parts, including viscera, of a slaughtered animal that are capable of being used for human food; __ "Meat" means the flesh of all edible parts capable of being used for human food and consumption, of cattle, calves, sheep, swine and goats; __ "Person" means a natural person, partnership, corporation or other organization, and every officer, agent and employee thereof, and the singular shall include the plural as the case may be. (Code 1982, § 8.20.010) 8.20.020. Regulations and rules adopted by reference. The general rules and regulations of the Montana Livestock Sanitary Board169 governing the preparation, processing, storage, or other handling or disposition of any product coming within the general scope and purview of this chapter, shall be and are adopted for the conduct and guidance of meat inspection within the channels of trade of the city. (Code 1982, § 8.20.020) 8.20.030. Meat to bear emblem of state livestock sanitary board or usda. The city commission of the city has determined that it is for the best interests of the health and general welfare of the inhabitants of the city that all meat or meat products, as herein defined, offered for sale, displayed for sale, sold or served commercially by any person in the city shall bear the official stamp, emblem or legend of the State Livestock Sanitary Board, or of the United States Department of Agriculture. (Code 1982, § 8.20.030) 8.20.040. Inspection of commercial establishments. The sanitary inspector of the 170city-county health department of the city and the county shall, after the effective date of the ordinance codified in this chapter, inspect all establishments within the city offering for sale, displaying for sale or selling meats or meat products to the public, either wholesale or retail, and places of commercial consumption of meat or meat products to insure that only meat and meat products bearing accepted and approved inspection legend are stored, kept, sold, distributed, processed or otherwise handled by such establishments, and such sanitary inspector, or his deputies, are authorized and directed, under the authority of this chapter, to enter and inspect any of the abovementioned establishments at any time. (Code 1982, § 8.20.040) 168 Are you still enforcing this chapter? Delete. 169 Does this board exist anymore? N/A. 170 Wherever health officer or health department are mentioned throughout the Code, should I refer to them as the city-county health officer or the city-county health department? N/A. PROOFS Page 278 of 977 8.20.050. Sale or serving of unauthorized meat prohibited. It is unlawful for any person to offer for sale, display for sale or sell any meat or meat products, as defined in this chapter, which does not bear the official stamp, emblem or legend of either the State Livestock Sanitary Board, or of the United States Department of Agriculture, nor shall any meat or meat products be served commercially unless the whole of such portions served was a part of meat or meat products which bore the official stamp, emblem or legend of the State Livestock Board or of the United States Department of Agriculture. All of such meat or meat products bearing such official stamp, emblem or legend must have been inspected by veterinarians authorized to so inspect and place the official stamp, emblem or legend thereon by either the State Livestock Sanitary Board or the United States Department of Agriculture, and inspected and approved in accordance with their respective rules and regulations and in conformity with the state and federal laws. (Code 1982, § 8.20.050) ARTICLE . MILK171 8.24.010. Regulatory ordinance adopted by reference with certain deletions--scope. The production, transportation, processing, handling, sampling, examination, grading, labeling and sale of all milk and milk products sold for ultimate consumption within the city, or its police jurisdiction; the inspection of dairy herds, dairies, and milk plants; the issuing and revocation of permits to milk producers, haulers, and distributors; and the fixing of penalties, shall be regulated in accordance with the terms of the unabridged form of the ordinance Milk Ordinance and Code-- 1953 Recommendation of the Public Health Service, a certified copy of which shall be on file in the office of the clerk; provided, that the words "municipality of" in said unabridged form shall be understood to refer to the city of Bozeman; provided further, that in said unabridged form all parenthetical expressions referring to degrading shall be understood to be deleted; provided further, that in section 7, Item 1r of said unabridged ordinance, either Plan A or Plan B approved by the BAI for the eradication of brucellosis shall be in effect within three years; provided further, that Sections 8 and 16 of said unabridged ordinance shall be replaced, respectively, by sections 8.24.020 and 8.24.030 of this chapter. (Code 1982, § 8.24.010) 8.24.020. Sale of unauthorized milk prohibited. From and after 12 months from the date on which this chapter takes effect, no milk or milk products shall be sold to the final consumer, or to restaurants, soda fountains, grocery stores or similar establishments, except certified pasteurized and Grade A pasteurized; provided, that when any milk distributor fails to qualify for one of the above grades, the health officer is authorized to suspend his permit and/or to institute court action. (Code 1982, § 8.24.020) ARTICLE 8. MEDICAL MARIJUANA* *State law reference—Montana Medical Marijuana Act, MCA 50-46-101 et seq. 171 Are you still enforcing this chapter? Delete. PROOFS Page 279 of 977 DIVISION 1. GENERALLY Secs. 16.08.010--16.08.140. Reserved. DIVISION 2. SALES Sec. 16.08.150. Applicability; failure to maintain state authorization. A. For purposes of this division, the definitions, words, phrases, and expressions as set forth in this division are to be construed the same as those set forth in the Montana Medical Marijuana Act (Title 50, Chpt. 46, MCA 50-46-101 et seq.). B. Any individual or entity licensed under this division to conduct any transaction, use or business involving medical marijuana, in addition to the requirements of this division, is subject to all other requirements of this title, this Code, and the Montana Medical Marijuana Act and any limits on possession, clean air, etc. and any applicable administrative rules established by the State. Should such rules or laws change, any person or entity licensed under this division shall immediately come into compliance with any newly adopted rules. C. Notwithstanding the above, nothing in this Code shall be construed to authorize any person or entity to perform any act or conduct any enterprise not in conformance with state or federal law. D. Compliance with this title Code does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. E. Each individual or entity issued a license under this division shall at all times maintain authorization from the State of Montana under the Montana Medical Marijuana Act Title 50, Chpt. 46, MCA to acquire, possess, cultivate, manufacture, deliver, transfer, or transport medical marijuana. Failure to maintain authorization under the Medical Marijuana Act shall be cause for immediate suspension of a license issued under this division and may be cause for revocation or cause for criminal prosecution as provided by law. (Ord. No. 1786, § 4(5.06.010), 7-26-2010) Sec. 16.08.160. License; application; fee; change; confidentiality. A. Business licenses. 1. Any individual or entity desiring to conduct any transaction, use, or business regarding medical marijuana within the city must first submit and obtain approval for an application for a business license under this division from the director of finance and pay the fee for such license as established by this title Code. An activity where a duly licensed medical doctor engages in the review of a person's medical condition for purposes of recommending medical marijuana and who does not provide medical marijuana to a qualifying patient is not subject to these licensing requirements but may be subject to other requirements of this Code. 2. There shall be the following types of business licenses related to medical marijuana activities conducted in the city regardless of whether the medical marijuana is sold, bartered, exchanged, or gifted: a. Storefront/retail locations. Any person or entity that provides a location other than the residence of the person's or entity's qualifying patient where a transaction or use related to medical marijuana is engaged in for more than three qualifying patients registered by the state to the applicant or the applicant's employees or agents shall, prior to engaging in such transaction or use, obtain a medical marijuana storefront license. As of August 25, 2010, PROOFS Page 280 of 977 the maximum number of medical marijuana storefront licenses shall be 20. The limitation on the maximum number of licenses under this subsection shall repeal automatically one year after the effective date of the ordinance from which this division is derived. b. Delivery. Any person or entity that delivers medical marijuana within the city to more than three qualifying patients or another entity regardless of whether the medical marijuana is sold, bartered, exchanged, or gifted shall prior to engaging in such activity obtain a medical marijuana delivery license. c. Growing and/or processing. Any person or entity that operates a facility for the purpose of growing and/or processing medical marijuana shall prior to engaging in such activity obtain a medical marijuana grow license. A person or entity desiring to engage in an activity related to medical marijuana must obtain a separate license for each activity described in this subsection A.2 except a person or entity obtaining a medical marijuana storefront license may also under said license deliver medical marijuana from that location without obtaining a separate medical marijuana delivery license. B. Application information. An application under this division, in addition to the requirements of section 12.02.060, shall include the following: 1. The name of all owners/principals of the business as applicable and the name of all agents, contractors or employees, if any; 2. Documentation demonstrating the applicant and all owners/principals, agents, contractors or employees, as applicable, that may be involved in transactions regarding medical marijuana within the city are registered with the state under the Montana Medical Marijuana Acttitle 50, chapter 46, (MCA 50-46-101 et seq.), and are duly authorized by state law to acquire, possess, cultivate, manufacture, deliver, transfer, or transport medical marijuana; 3. A sworn statement signed by the applicant verifying the number of qualifying patients which name the applicant and any other owner/principal, agent, contractor, or employee of the applicant as the qualifying patient's caregiver. The number of qualifying patients to be included in the sworn statement shall include all patients who may be registered with a caregiver acting as an agent, contractor, employee or owner/principal of the applicant; 4. A statement addressing how the applicant will comply with the security requirement provisions of section 16.08.180; and 5. Each applicant for a business license shall provide a detailed statement regarding the nature of activities related to medical marijuana for which the applicant is engaged in and the specific license for which an application is being submitted. C. Duty to inform. An individual or entity licensed under this division to conduct a transaction, use, or business related to medical marijuana must, within the time period described below, inform the director of finance of the occurrence of the following: 1. Every 90 days, any change to the licensed individual or entity's number of registered qualifying patients (including those of a principal/owner, agent, contractor, or employee); and/or 2. Every 30 days, a change in the principals of the business or a change of agents, contractors or employees. PROOFS Page 281 of 977 If either of these conditions occur, a new statement under subsection B.3 of this section is required. Failure to inform the director of finance of the changes listed herein within the time periods described above shall be cause for revocation of the license pursuant to sections 12.02.170 and 12.02.180. D. Public document. An application for business license under this division is a public document except that the names of all agents, employees and/or contractors and the number of qualifying patients provided to the city in fulfillment of the requirements of this division are to be kept on a separate form and are to be considered confidential by the city unless disclosure is required by law. Nothing herein shall prevent a duly authorized agent of the city from sharing the information described in this section with other authorized city employees or other state or local law enforcement as necessary to perform official duties. E. Limitations. An application for a business license under this division submitted prior to but not approved before August 25, 2010, shall not be subject to the limitation on the maximum number of licenses but shall be subject to all other provisions of this title Code. Any application for a license submitted hereunder after August 25, 2010, shall be subject to the maximum allowable licenses and all other provisions of this title Code. This chapter article shall repeal automatically one year after the effective date of the ordinance from which this article is derived. F. Nontransferable. A license issued under this division is not transferable and the provisions of section 12.02.080 shall not apply. (Ord. No. 1786, § 4(5.06.020), 7-26-2010) Sec. 16.08.170. Inspection. In addition to the authorization to inspect under section 12.02.150, as a condition of receiving a business license under this division, a city employee, including city law enforcement, may without notice during normal business hours inspect any premises under license pursuant to this division to determine whether the licensee is in compliance with the Montana Medical Marijuana Act (MCA 50-46-101 et seq.), or any other state or local regulation, and may inspect the number of plants or amount of marijuana or usable marijuana on the premises or in control of the licensee to determine whether these amounts correspond to the amounts established by the Montana Medical Marijuana Act Title 50, Chpt. 46, MCA, which the licensee is authorized to lawfully possess. (Ord. No. 1786, § 4(5.06.030), 7-26-2010) Sec. 16.08.180. Security requirements. Prior to issuance of a license under this division, a medical marijuana commercial business where any amount of marijuana or usable marijuana is stored on the premises beyond normal business hours or where marijuana is grown in any amount shall be secured at all times by a physical barrier with suitable locks and also by an electronic barrier or alarm that is designed to detect entry by unauthorized persons at any time. In addition, any marijuana or usable marijuana grown or stored on the premises after normal business hours shall be kept in a security safe incorporated into the building's structure or securely attached thereto. (Ord. No. 1786, § 4(5.06.040), 7-26-2010) Secs. 16.08.190--16.08.290. Reserved. DIVISION 3. PUBLIC USE AND DISPLAY Sec. 16.08.300. Purpose and intent. A. The purpose of this division is to identify acts regarding the medical use of marijuana within the city that are not authorized to be conducted in a manner open or visible to PROOFS Page 282 of 977 the general public. In addition, the purpose of this division is to identify that acts related to smoking, consuming, or displaying medical marijuana in certain public areas are to be punished as criminal acts and as such shall be subject to criminal penalties. The purpose of establishing these acts where the use is further limited by the city as criminal is to protect the public's health, safety, and general welfare. B. It is the intent of this division that the visible or open display, smoking, or consumption of medical marijuana is to be confined to private property where that property or portions thereof are not adapted and fitted for public travel or are not in common use by the public. (Ord. No. 1786, § 5(8.52.010), 7-26-2010) Sec. 16.08.310. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Marijuana" has the meaning provided in MCA 50-32-101. 2. "Medical marijuana" means the uses of marijuana described in MCA 50-46-102(5). Other phrases herein such as the "use of medical marijuana" or "the medical use of marijuana" shall have the same meaning and include the term "usable marijuana." 3. "Ways of the city open to the public" means any highway, road, driveway, alley, lane, parking area, sidewalk, park, trail, or other public or private place within the city that is adapted and fitted for the use of the public and that is in common use by the public. (Ord. No. 1786, § 5(8.52.020), 7-26-2010) Sec. 16.08.320. Public display, smoking, or consumption of medical marijuana prohibited. No person authorized by the Montana Medical Marijuana Act (MCA 50-46-101 et seq.)Title 50, Chpt. 46, MCA, to acquire, possess, cultivate, manufacture, deliver, transfer, or transport medical marijuana, may, on the ways of the city open to the public, display, smoke, or consume medical marijuana in an open or visible manner. A violation of this section is an absolute liability offense. (Ord. No. 1786, § 5(8.52.030), 7-26-2010) Sec. 16.08.330. State law superseded and applicable. The provisions of this division shall supersede by the Montana Medical Marijuana Act (MCA 50-46-101 et seq.)Title 50, Chpt. 46, MCA, only in so far as this division expands the limitations on the use of medical marijuana. All other provisions of state law related to medical marijuana or Marijuana shall be applicable. (Ord. No. 1786, § 5(8.52.040), 7-26-2010) Sec. 16.08.340. Violation and penalty. A violation of section 16.08.320 is a misdemeanor and upon conviction a person shall be fined not more than $500.00 or imprisoned in the Gallatin County Detention Center for a period not to exceed six months or both such fine and imprisonment. A person so convicted shall also be required to pay all costs and expenses of prosecution and the courts as authorized by law. (Ord. No. 1786, § 5(8.52.050), 7-26-2010) PROOFS Page 283 of 977 Sec. 16.08.350. No private right of action. Nothing in this division shall be construed to create a private right of action regarding the acquisition, possession, cultivation, manufacture, delivery, transfer, or transport of either marijuana or medical marijuana. (Ord. No. 1786, § 5(8.52.060), 7-26-2010) ARTICLE 9. ALARM SYSTEMS Sec. 16.09.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Alarm system monitoring company" means any individual, partnership, corporation or other form of association that engages in the business of monitoring security alarm systems and reporting any activation of such alarm systems to the police. 2. "Alarm user" means any individual, partnership, corporation or other form of association that owns or leases a security alarm system or on whose premises a security alarm system is maintained for the protection of the premises. 3. "Automatic dialing telephone alarm" means a security alarm system with a device that automatically dials the police department emergency assistance telephone lines without human activation of the device by the alarm user. __ "Department" means the Bozeman Police Department. __ "Director of Public Safety" means the director of public safety of the city of Bozeman or designee. Use of the term Director or the initials "DPS" have the same meaning in this chapter. 4. "Dispatch" or "response" means a discretionary decision whether to direct police units to a location where there has been a request, made by whatever means, for police assistance or investigation. There is no duty to dispatch under any circumstances, including to answer an alarm signal, and all dispatch decisions are made subject to competing priorities and available police resources. 5. "False alarm" means an alarm signal eliciting notification to and a response by the police when there is no evidence of a crime or other activity that warrants a call for immediate police assistance and no person who was on or near the property or has viewed a video communication from the property called for the police dispatch or confirmed the need for police assistance. The term "false alarm" does not include an alarm signal caused by violent conditions of nature or other extraordinary circumstances beyond the control of the alarm user. 6. "Security alarm system" means any system, device, or mechanism for the detection and reporting of any unauthorized entry or attempted entry or property damage upon premises protected by the system that may be activated by sensors or other techniques and, when activated, automatically transmits a telephone message or emits an audible, visible, or electronic signal that can be heard, seen, or received by persons outside the protected premises and is intended to summon police assistance. (Code 1982, § 8.05.010; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.010), 6-16-2005) Sec. 16.09.020. Audible alarm standards. A. A security alarm system that emits an audible signal that may be heard outside the PROOFS Page 284 of 977 protected premises shall conform to the following requirements: 1. Audible alarms shall automatically discontinue emitting the audible sound within ten minutes after activation of the alarm; and 2. Security alarm systems that do not comply with subsection 1 of this section shall have 30 days from the issuance of a notice of noncompliance with the ordinance in which to make the necessary modifications to the alarm system in order to comply with the requirement. If there is no evidence of compliance at the end of the 30 days, the system is subject to a determination under section 16.09.090 and a "No Response" designation under section 16.09.120. Subsequent evidence of compliance with the alarm standards may allow for cancellation of the action under sections 16.09.090 and 16.09.120 in the discretion of the director of public safety chief of police. (Code 1982, § 8.05.020; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.020), 6-16-2005) Sec. 16.09.030. Violation of audible alarm standard. A. The sounding of an audible signal from a security alarm system that can be heard continuously off the premises for more than ten minutes is not an emergency exemption to the provisions of article 6 of this chapter unless the defenses found in subsection B of this section apply. A system which continuously sounds an audible alarm under circumstances where subsection B of this section does not apply is subject to the provisions of article 6 of this chapter and may be cited as such. B. It is a defense to a violation of this section that the continuous sounding of the alarm: 1. Assisted in saving a life or avoiding injury; or 2. Was caused by a malfunction of the alarm system equipment without the alarm user's prior knowledge of the cause of the malfunction; or 3. Was activated by an unauthorized entry of criminal activity. (Code 1982, § 8.05.030; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.030), 6-16-2005) Sec. 16.09.040. Automatic dialing telephone systems prohibited. It shall be unlawful for any individual, partnership, corporation or other form of association to sell, offer for sale, install, maintain, operate or assist in the operation of any alarm system with an automatic dialing or digital alarm communicator feature that automatically calls the police in the event of an alarm. (Code 1982, § 8.05.040; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.040), 6-16-2005) Sec. 16.09.050. Alarm users. A. An alarm user shall: 1. Maintain the premises and security alarm system in a manner that will minimize or eliminate false alarms; 2. Review all alarm system operating instructions, including those for verification of an alarm; 3. Maintain a verification process, as specified in section 16.09.070, for all monitored security alarm systems in order to prevent unnecessary police dispatches resulting from false alarms; 4. Notify the alarm system monitoring company of a false alarm activation as soon as PROOFS Page 285 of 977 the user is aware of the false alarm; 5. Not manually activate an alarm except when needing an immediate police response to an emergency; 6. Provide an immediate response to the alarm site in an effort to address the alarm cause and facilitate access to the premises. This response shall be made by the alarm user or their authorized key holder; and 7. Provide the alarm company with a current, accurate, maintained list of authorized key holders. (Code 1982, § 8.05.050; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.050), 6-16-2005) Sec. 16.09.060. Alarm system monitoring companies. A. An alarm system monitoring company engaging in business activities in the city shall: 1. Obtain all necessary business licenses as required by the city and state; 2. Maintain a current record, accessible to the director of public safety chief of police at all times, that includes: the names of the alarm users serviced by the company; the addresses of the protected properties; the type of alarm system, original installation date and subsequent modifications, if any, for each protected property; and a record of the false alarms at each property; 3. Provide the director of public safety chief of police such information as may be requested regarding: the nature of the company's security alarms; the company's method of monitoring the alarms; the company's program for preventing false alarms, including educational programs for alarm users; and the company's method for disconnecting audible alarms; 4. Provide each of its alarm system users with: operating instructions for the alarm system, including an explanation of the alarm company's alarm verification process; a telephone number to call for assistance in operating the system; and a summary of the provisions of this article relating to penalties for false alarms and the possibility of no police response to alarm systems experiencing excessive false alarms; 5. Maintain a verification process, as specified in section 16.09.070, for all monitored security alarm systems in order to prevent unnecessary police dispatches resulting from false alarms; 6. Communicate requests for police response to the police department in a manner specified by the director of public safety chief of police; 7. Communicate requests for cancellations of police response in a manner specified by the director of public safety chief of police; 8. Maintain a record of all requests for police response to alarm, including: the date and time of the alarm and request for police response; the alarm system user's name and address; evidence of the company's attempt to verify the alarm; and, to the best of its knowledge, an explanation of the cause of any false alarm; and 9. Work cooperatively with the alarm system user and the director of public safety chief of police in order to determine the cause of any false alarm and to prevent recurrences. (Code 1982, § 8.05.060; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.060), 6-16-2005) PROOFS Page 286 of 977 Sec. 16.09.070. Security alarm verification process. A. A verification process is an independent method of an alarm system monitoring company for determining that a signal from a security alarm system requires immediate police response. The verification process shall not take more than five minutes, calculated from the time that the alarm company receives the alarm signal until the alarm company determines whether to request a police dispatch. The means of verification shall include at least one of the following: 1. The establishment of voice communications with the alarm user or a person authorized by the user at or near the premises with the alarm who may indicate whether there is an immediate need for police response; 2. A feature that permits the alarm user or a person authorized by the user to send a special signal to the alarm company that will cancel the alarm immediately after the signal has been sent and prevent the alarm company from calling the police; 3. The installation of a video system that provides the alarm company, when the alarm signal is received, with the ability to ascertain whether activity is occurring that warrants immediate police response; 4. A confirmation made before dispatching the police that an alarm signal reflects a need for immediate police response from either the alarm user or a person authorized by the user or an alternate response agency; or 5. An alternate system that the director of public safety chief of police determines has or is likely to have a high degree of reliability. (Code 1982, § 8.05.070; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.070), 6-16-2005) Sec. 16.09.080. Unlawful activation or report of alarm. A. No person shall activate a security alarm system for the purpose of summoning the police except in the event of an unauthorized entry, robbery, or other crime being committed or attempted on the premises, or if the person needs immediate assistance in order to avoid injury or serious bodily harm. B. Any person who shall notify the police of an activated alarm and has knowledge that such activation was apparently caused by an electrical or other malfunction shall at the same time notify the police of the apparent malfunction. (Code 1982, § 8.05.080; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.080), 6-16-2005) Sec. 16.09.090. Determination of false alarm; rebuttable presumption. A. For the purposes of this article, there is a rebuttable presumption that the following determinations made by the director of public safety chief of police or by a police officer dispatched to the premises reporting an alarm signal are correct: 1. There is no evidence of a crime or other activity that would warrant a call for immediate police assistance at the premises; 2. No individual who was on or near the premises, or who has viewed a video communication from the premises, called for a police dispatch or verified a need for an immediate police response; and 3. There is no evidence that violent conditions of nature or other extraordinary circumstances beyond the control of the alarm user caused the activation of the alarm. (Code 1982, § 8.05.090; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.090), 6-16-2005) PROOFS Page 287 of 977 Sec. 16.09.100. Penalty for false alarm. A false alarm is an administrative infraction, and upon determination of a false alarm, the alarm system user may be subject to administrative designation under section 16.09.120. (Code 1982, § 8.05.100; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.100), 6-16-2005) Sec. 16.09.110. Appeal of false alarm fine. A. The city court may waive the administrative penalty incurred by an alarm system user for a false alarm and clear the notice of violation as a warning if: 1. The notice to alarm user describes a violation of section 16.09.100; and 2. Within 15 days after the date of the notice of a false alarm, the alarm user either follows the instructions on the back of the notice of violation to arrange an appearance in court or mails a written response to the court requesting a waiver and clearance as a warning. B. The alarm user may present evidence before the court or in the written response to the court that shows: the steps that the alarm user or alarm system monitoring company has taken, or is taking, to correct the false alarm problem; the incidence of crime in the area of the property; the facts and circumstances of the false alarm; and other relevant information. (Code 1982, § 8.05.110; Ord. No. 1470, § 1, 1998) Sec. 16.09.120. No-response to frequent false alarms; appeal of no-response determination. A. When the director of public safety chief of police or designee determines whether to make an immediate dispatch in response to notification of a signal from a security alarm system, the director of public safety may disregard a call for police assistance when: 1. The call for assistance comes from an alarm system for a premises that has a record of sending four false alarms in a 12-month calendar year; and 2. The call is the only basis for making the dispatch. B. The director of public safety chief of police may consider such a call for assistance as an additional factor in the director's decision to order an immediate police response when an in- person call, verification from a person at or near the premises, or other independent evidence shows a need for immediate police assistance at the premises. C. To discourage false alarms, the director shall adopt a process of communication (by letter, telephone and in-person) with the alarm user who has had one or more false alarms emphasizing172 the need to take corrective action, and that four false alarms in a 12-month calendar year may result in the police disregarding alarms from the premises and not responding to requests for immediate police assistance unless there is an in-person call for assistance from someone at or near the premises or other independent information that verifies the need for an immediate police response. D. Before determining not to respond to alarms from a premises as specified in subsection C of this section, the director of public safety chief of police shall communicate with the alarm user that: 1. Four false alarms have been received from the property within a 12-month calendar year; 172 There is an unreadable word in Ord. No. 1639. Please provide the missing text. The missing word is “emphasizing.” PROOFS Page 288 of 977 2. The remedy authorized in subsection A of this section may be taken; 3. The alarm system user may request a meeting before the director of public safety chief of police or designee and explain why the director should not take the proposed action; 4. If no meeting is requested, the police department will, after ten days from the delivery of the notice, disregard alarms from the premises unless there is an in- person call for assistance from someone at or near the premises or other independent information that verifies the need for an immediate police response; and 5. A requirement of an in-person communication or other verification shall remain in effect until adequate corrective action has been completed. E. If a meeting is requested, the director of public safety chief of police shall schedule the meeting within ten days of the receipt of the request. At the meeting, the director may consider such factors as: the steps that the alarm user or alarm system monitoring company has taken, or is taking, to correct the problem; the frequency of crime in the area of the premises; the facts and circumstances of the false alarms; and other relevant information presented by the alarm user or the alarm system monitoring company. F. The director of public safety chief of police may suspend or cancel the remedy under subsection A of this section if the director determines that the alarm user or alarm system monitoring company has taken appropriate actions to prevent the recurrence of false alarms. (Code 1982, § 8.05.120; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.120), 6-16-2005) Sec. 16.09.130. Violation; penalties173. A. An alarm system monitoring company's failure to comply with any of the requirements of this article shall be a misdemeanor, punishable by a fine of up to $250.00. Each day of noncompliance shall constitute a separate offense. B. The violations of the other sections of this article shall be a misdemeanor and punishable by a fine of up to $50.00, unless otherwise specified. (Code 1982, § 8.05.130; Ord. No. 1470, § 1, 1998; Ord. No. 1639, § 1(8.05.130), 6-16-2005) 173 Do you wish to use the general penalty instead? Keep as is. PROOFS Page 289 of 977 Chapter 17 RESERVED PROOFS Page 290 of 977 Chapter 18 FIRE PREVENTION AND PROTECTION* *State law reference—Fire safety in public buildings, MCA 50-61-101 et seq.; fire hazards, MCA 50-62-101 et seq.; investigation of fires, MCA 50-63-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. FIRE CODE Sec. 18.02.010. International Fire Code. A. Adoption by reference of the International Fire Code. 1. The current edition of the International Fire Code together with any supplements, adopted by the Fire Prevention and Investigation Bureau of the Montana Department of Justice (or its successor), as set out in the Administrative Rules of Montana, and as amended from time to time by the Bureau, are adopted by reference and incorporated in this article as if set forth in full, with the additions, amendments, and deletions enumerated within the Administrative Rules, except as may be noted in this article, by future administrative order, or by any regulations not applicable to local government jurisdictions. 2. One copy of the current edition of the code shall be kept on file in the office of the Clerk of the Commission of the City of Bozeman, 121 North Rouse Avenue, Bozeman, Montana, and one copy shall be kept on file in the office of the Bozeman Fire Department, 34 North Rouse, Bozeman, Montana. 3. Any amendments adopted by the Fire Prevention and Investigation Bureau which apply to local government jurisdictions, including the adoption of the latest editions of the International Fire Code or applicable Administrative Rules of Montana shall become effective upon execution of an administrative order of the city manager unless a different effective date is specified in the administrative order. 4. A copy of the amendment notification and the corresponding new edition will be kept in the office of the city clerk of the commission, and the city fire department. 5. The International Fire Code, Administrative Rules of Montana, as adopted in subsection A.1 of this section, are applicable within the city limits. B. Violation; penalty.174 1. Any person, firm, business or corporation, who erects, constructs, reconstructs, enlarges, alters, repairs, moves, improves, removes, converts, equips, uses, changes the use of, occupies or maintains any building or structure in violation of any provision of this code shall be guilty of a misdemeanor criminal offense punishable by a fine not to exceed $500.00, or be imprisoned in the county jail for a term not to exceed six months, or both. Each day the violation is allowed to continue shall be deemed a separate chargeable criminal offense. 2. Any damages caused or injuries sustained as a result of any violation of this article shall be ordered paid as restitution as a part of any conviction for any violation. 3. The court may order the reimbursement of costs of enforcement, investigation, fire suppression services, overtime and prosecution related to a violation upon 174 The penalty is covered by the general penalty. Keep as is. PROOFS Page 291 of 977 conviction. (Code 1982, §§ 15.36.010, 15.36.020; Ord. No. 1208, § 1, 1986; Ord. No. 1305, §§ 1, 2, 1990; Ord. No. 1370, § 1, 1993; Ord. No. 1443, § 1, 1997; Ord. No. 1511, §§ 1, 2, 2000; Ord. No. 1619, §§ 1, 2, 8-16-2004; Ord. No. 1791, § 2, 8-23-2010) State law reference—Authority to adopt the fire code by reference, MCA 7-5-4202(1), 7-33-4208. Sec. 18.02.020. Fire code board of appeals. A. Creation. The city commission of the city shall appoint a fire code board of appeals, hereinafter referred to as the "board," and designate the board to determine the suitability of alternate materials and types of construction under the International Uniform Fire Code and to provide reasonable interpretation of the International Uniform Fire Code, as adopted by the city. B. Membership; meetings. 1. The board shall consist of five members, appointed by the city commission, who are qualified by experience and training to pass upon pertinent matters. Each member may be reappointed without limitation on the number of reappointments. The fire chief, or his designee, shall be an ex officio member and shall act as secretary of the board. 2. Initial terms of office shall be as follows: one appointed for one year, two appointed for two years and two appointed for three years. Succeeding appointments shall be for a period of three years. 3. Vacancies shall be filled in the same manner as original appointments for the balance of the term remaining. 4. Persons of legal age may be appointed to the board. A majority of the board shall be residents of the city. Nonresident members of the board shall live within the zoning jurisdictional area and shall have some interest in the city by virtue of working in the city, owning property in the city or entering the city frequently for any lawful purpose. 5. Members shall serve without compensation for their time and services. 6. Meetings of the board shall be conducted in accordance with all applicable rules and regulations of the city and the minimum bylaw provisions adopted by the board and approved by the commission. 7. The board shall hear appeals not more than 30 days after filing thereof, and render all decisions and findings in writing to the fire chief, or his designee, with a copy to the appellant. 8. Any expenses incurred must first be approved by the city commission. (Code 1982, §§ 15.37.010, 15.37.020; Ord. No. 1444, § 1, 1997) PROOFS Page 292 of 977 ARTICLE 3. OFFENSES CONCERNING FIREFIGHTING OPERATIONS Sec. 18.03.010. False alarms and tampering with fire alarm boxes prohibited175. No person shall willfully use any fire alarm box, or telephone, or any means whatsoever for transmitting or sending in to the fire department an alarm of fire which such person knows to be false; nor shall such person willfully tamper with, or injure or destroy any such fire alarm box or any of the equipment thereof. (Code 1982, § 9.06.010) Sec. 18.03.020. Taking or damaging fire apparatus prohibited; exception. It is unlawful for any person or persons to take out or remove from the fire stations of the city firerooms176, where the same are kept, any ladders, trucks, hose, hose cart or any other fire apparatus, except in case of fire, or under the direction of the chief of the fire department; nor shall any person or persons mar, deface or in any manner injure any of the fire apparatus used by the fire department. Any person violating any of the provisions of this section shall be guilty of a misdemeanor. (Code 1982, § 9.08.010) State law reference—Criminal mischief, MCA 45-6-101 et seq. Sec. 18.03.030. Taking fire apparatus for private use or outside city prohibited. Any officer in command of the fire department who suffers the engine or other fire apparatus, the property of the city, to be taken beyond the city limits, without permission of the city manager, shall be guilty of a misdemeanor. If any person having charge of any engine or other fire apparatus, the property of the city, suffers the same to be applied to private use without permission of the city manager, such person shall be guilty of a misdemeanor. (Code 1982, § 9.08.020) Sec. 18.03.040. Fire area limits; private citizens to help extinguish fires. A. The chief of the fire department may prescribe limits in the vicinity of a fire within which no person, except those residing therein, members of the fire department, members of the police force, or those admitted by the chief of the fire department, or the chief's subordinates, shall be permitted to come. B. The chief of the fire department, when in the chief's judgment the same is necessary, may call upon any person present to assist the firemen fighters in their duties, or to assist in extinguishing any fire, and any such person so called upon who refuses or neglects to so assist, unless physically incapacitated, shall be guilty of a misdemeanor. (Code 1982, § 9.08.030) 175 Compare with state law: Leave for phase 2. 45-7-204. False alarms to agencies of public safety. (1) A person commits an offense under this section if he knowingly causes a false alarm of fire or other emergency to be transmitted to or within any organization, official or volunteer, which deals with emergencies involving danger to life or property. (2) A person convicted of an offense under this section shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both. History: En. by Sec. 1, Ch. 513, L. 1973; R.C.M. 1947, . 176 Firerooms? Note change. PROOFS Page 293 of 977 Sec. 18.03.050. Firefighting operations; destruction of property authorized when. The chief of the fire department, or in the chief's absence anyone acting in the chief's capacity, may, during the progress of any fire, whenever in the chief's judgment it becomes necessary in order to check or control the same, order any fence, building or structure to be cut or torn down and removed. The chief of the fire department shall, with the consent of the city manager, have power to cause any building or structure to be blown up for the purpose of checking or extinguishing the fire, and may tear down any portion of any building which may remain after a fire if, in the chief's judgment, such portion of any building so remaining standing shall be dangerous to persons or property. (Code 1982, § 9.08.040) Sec. 18.03.060. Hindering firefighting operations prohibited. Any person who willfully interferes or hinders any city officer or firefighter in the performance of such officer's or firefighter's duty at, going to, or returning from any fire, or while attending to the officer's or firefighter's duties as a member of the fire department, or who willfully or negligently drives any dray, wagon, streetcar, locomotive, train of cars or other vehicle across, or along or upon any hose, or who willfully cuts, defaces, destroys or injures any telegraph wire or pole, or signal box, or any of the property belonging to or connected with the fire department, or any fire alarm telegraph, shall be deemed guilty of a misdemeanor. (Code 1982, § 9.08.050) State law reference—Obstructing peace officer or other public servant, MCA 45-7-302. Sec. 18.03.070. Abatement of fire hazard nuisances caused by structures. A. Any and all buildings, ruins, chimneys, flues, boilers, walls, remains of burned buildings or other constructions within the city limits which, by reason of their construction or condition, are in danger of being set on fire, or are in any manner a menace to adjoining property or to the public generally, are each hereby declared to be a nuisance. It shall be the duty of the chief of the fire department to examine all such, and, for such purpose, may enter any building within reasonable hours, and if in the chief's opinion any nuisance, as defined by this article, shall exist, the chief of the fire department shall notify the owner or owners to abate such nuisance forthwith. B. In case the owner of any premises upon which a nuisance exists fails or refuses to abate such nuisance, after being notified as aforesaid, the chief of the fire department shall report the facts in relation thereto to the city commission. If the city commission finds that such nuisance exists, it may direct the chief of police or city engineer to abate such nuisance. The expense thereof shall be reported by such officer so abating same to the commission, to be an item of special assessment, which may be assessed against the premises as in case of special assessment of taxes. The owner of such premises, permitting any such nuisance to remain after being notified, shall be deemed guilty of a misdemeanor. (Code 1982, § 9.08.060) Sec. 18.03.080. Abatement of nonstructural fire hazard nuisances. A. It shall be the duty of the chief of the fire department at least once a week to inspect all streets and alleys, cellar ways, back lots, woodsheds and all other places within the city limits where shavings, straw, waste or other combustible material may or does accumulate, and to order instant removal of such material, if any is found, by the person responsible, or by the person upon whose premises the same may be located. B. Upon the refusal of any such person so notified to abate the nuisance created by such combustible material so being in such place, the person so refusing shall be deemed guilty of PROOFS Page 294 of 977 maintaining a nuisance, and upon conviction thereof shall be fined as for a misdemeanor. (Code 1982, § 9.08.070) 9.08.080. Power of arrest177. The chief of the fire department, or any officer of the fire department rightfully performing the duties of the chief, is empowered to arrest and prosecute in the police court of the city any person violating any of the provisions of this chapter. (Code 1982, § 9.08.080) ARTICLE 4. OPEN BURNING Sec. 18.04.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Best available control technology" means those techniques and methods of controlling emissions of air contaminants from an open burning source and that limits those emissions to the maximum degree taking into consideration impacts on energy use, the environment, the economy, and any other costs, including the cost to the source, including, but not limited to: a. Scheduling burning during periods and seasons of good ventilation; b. Considering atmospheric dispersion forecasts; c. Utilizing predictive modeling results from the Montana Department of Environmental Quality to minimize smoke; d. Limiting the amount of burning to be performed during any one period of time; e. Using ignition and burning techniques that minimize smoke production; f. Selecting fuel preparation methods to minimize dirt and moisture content; g. Promoting fuel arrangements that create an adequate air to fuel ratio; h. Prioritizing burns as to air quality impact and assigning control techniques accordingly; and i. Promoting alternative treatments and uses of materials so that they do not have to be burned. 2. "Major open burning" means open burning that, on a statewide basis, will emit more than 500 tons of carbon monoxide or 50 tons of any other pollutant regulated under title 17, chapter 8, Administrative Rules of Montana (ARM), in a calendar year, except hydrocarbons. Major open burning requires a permit from the state. 3. "Minor open burning" means open burning that emits less pollutant than "major open burning" and must comply with this article, any other applicable state, federal, or county law including the ARMs and uses the best available control technology (BACT). 4. "Open burning" means the burning or combustion of any material directly in the open air or in a receptacle other than a furnace, multiple chambered incinerator, or 177 Deleted at request of city staff. PROOFS Page 295 of 977 a wood waste burner commonly used by the wood products industry. (Code 1982, § 8.44.010; Ord. No. 1499, § 1, 1999) Sec. 18.04.020. Permit; when required; fees. A. For burning between the periods of March 1 through November 30, a county open burn permit must be obtained prior to engaging in any open burning within the city limits. When limits for atmospheric conditions or hours restrict burning, these limits will be designated in the permit restrictions. B. For any major open burning during any time of the year or for open burning during the months of December, January, and February a person may make a written application to the state department of environmental quality for permission to burn. C. Where burning is conducted on public property or the property of someone other than the permit applicant within the city limits, the permit applicant will obtain a burn permit as well as written permission from the owner or the owner's authorized agent. D. The fees for the permits will be set in accordance with a schedule adopted by the Gallatin county commission. (Code 1982, § 8.44.020; Ord. No. 1499, § 1, 1999) State law reference—Permit for burning required, MCA 76-13-121 et seq. Sec. 18.04.030. Other burning allowed with a permit. A. Essential agricultural open burning on a farm or ranch is allowed during the months of March through November with a burning permit and only for the purposes of eliminating excess vegetative matter from irrigation ditches or cultivated fields or improving range conditions or wildlife habitat when no reasonable alternative method of disposal is available. B. Prescribed wild land open burning, if conducted on forest land or relatively undeveloped rangeland, is allowed with a burning permit only for the purpose of improving wildlife habitat or range conditions; reducing fire hazards from forestry practices; controlling forest pests and diseases; promoting forest regeneration; or promoting other accepted forest practices. (Code 1982, § 8.44.030; Ord. No. 1499, § 1, 1999) Sec. 18.04.040. Open burning allowed without any permit. From March 1 through November 30, a permit is not required for small recreational fires in controlled areas. The fire must not exceed three feet in diameter and two feet in height. However, from September 1 through November 30, the burner must call to see if there are restrictions. For the purposes of this section, a recreation fire is defined as any fire not contained in an incinerator, outdoor fireplace, barbecue grill or pit and which is burned for pleasure, religious, ceremonial cooking or similar purposes. (Code 1982, § 8.44.040; Ord. No. 1499, § 1, 1999) Sec. 18.04.050. Materials prohibited for open burning. A. Open burning within the city limits is totally prohibited for: 1. Food wastes; 2. Styrofoam, plastic wastes and other materials generating noxious odors; 3. Poultry litter, animal droppings, dead animals or dead animal parts; 4. Rubber materials including, but not limited to, tires; PROOFS Page 296 of 977 5. Treated lumber and timbers; 6. Pathogenic wastes; 7. Asbestos or asbestos-containing materials; 8. Materials resulting from salvage operations to reclaim or salvage any product or material, except materials from the forest practice commonly referred to as a salvage cut in timber harvesting; 9. Hazardous wastes, which are a waste or combination of wastes that, because of the quantity, concentration, or physical, chemical or infectious characteristic, if any, cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise managed as defined in the Code of Federal Regulations; and 10. Any other materials specifically prohibited by Montana Code Annotated and the ARMs. (Code 1982, § 8.44.050; Ord. No. 1499, § 1, 1999) Sec. 18.04.060. Burn barrels prohibited. The use of burn barrels is totally prohibited within the city limits. (Code 1982, § 8.44.060; Ord. No. 1499, § 1, 1999) Sec. 18.04.070. Permit holder responsibilities. A. A permit holder must call the county open burning number each day burning is planned at least 30 minutes before the planned burn and give the following information: 1. Name, permit number, and phone number; 2. Material to be burned; 3. Starting time of burning, during daylight hours; 4. Location of burn; 5. If on forest service property, the legal description including section, township, and range; and 6. The number of acres to be burned. B. Before setting a fire, permit holders must ensure that adequate fire suppression equipment and personnel are present for fire control for the duration of the burn. The permit holder will not leave the immediate fire area until the fire has completely burned out, with no remaining embers or smoke. C. The permit holder may delegate any of these duties to a designated responsible person; however, the permit holder is ultimately responsible for any violations. (Code 1982, § 8.44.070; Ord. No. 1499, § 1, 1999) Sec. 18.04.080. Safety conditions. A. No fire shall be set if wind or weather conditions make it hazardous to burn. If wind or other weather conditions change making the fire hazardous, the fire must be extinguished as quickly as possible. B. When there is high fire danger, because winds or other conditions make burning hazardous, or when fire suppression resources are not available, permits may be temporarily PROOFS Page 297 of 977 suspended until good ventilation exists and to allow assignment of burn priorities, if others request permission to burn on the same day. C. The city fire chief or designee may close or restrict open burning when necessary. All permit holders must extinguish fires upon request of any city or county law enforcement officer or firefighter. Failure to do so will be a violation of this article. (Code 1982, § 8.44.080; Ord. No. 1499, § 1, 1999) Sec. 18.04.090. Enforcement; penalties. The city police department has the authority to investigate complaints and issue written notices of violation, orders to take corrective action, and citations to enforce this article. 178A violation of this chapter is a misdemeanor punishable by a fine not to exceed five hundred dollars or imprisonment of up to six months in the county jail, or both fine and imprisonment. In addition, restitution may be requested. (Code 1982, § 8.44.090; Ord. No. 1499, § 1, 1999) 9.48.010. Bonfires prohibited--exceptions179. No person shall build any bonfire in any street, alley, public place or vacant lot, nor permit any bonfire to burn or smolder in the nighttime; and a person shall at all times keep any such bonfire, when otherwise legally permitted, under strict supervision and control so as not to endanger property or cause a smoke nuisance to any person or neighborhood. (Code 1982, § 9.48.010) ARTICLE 5. FIREWORKS* *State law reference—Fireworks, MCA 50-37-101 et seq. Sec. 18.05.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Fireworks" means and includes any combustible or explosive composition or any substance, combination of substances, or article prepared for the purpose of producing a visible or audible effect by combustion, explosion, deflagration, or detonation and includes, but is not limited to, sky rockets, roman candles, dago bombs, blank cartridges, toy cannons, toy canes, or toy guns in which explosives other than toy paper caps are used, the type of balloons which require fire underneath to propel then, firecrackers, torpedoes, sparklers or other fireworks of like construction, any fireworks containing any explosive or flammable compound, or any tablet or other device containing any explosive substance. This definition includes items which contain even small amounts of silver fulminate, potassium nitrate, ammonium perchlorate, or other chemical or pyrotechnical composition intended to produce a pyrotechnic event or effect, even if not classified as a "hazardous material" under federal regulation. (Ord. No. 1612, § 1, 5-3-2004) 178 The general penalty covers the penalty. Yes. Delete. 179 This section appears to be superseded by Code ch. 8.44. Yes. Delete. PROOFS Page 298 of 977 Sec. 18.05.020. When this article does not apply. A. This article shall not apply to: 1. Fireworks held or sold to a person possessing a valid permit under MCA 50-37-107, and a valid permit issued by the fire chief Director of Public Safety or designee for the purpose of conducting a supervised public display of such fireworks. 2. Fireworks used by railroads or other transportation agencies for signal purposes or illumination. 3. The sale or use of blank cartridges for a show or theater, for signal or ceremonial purposes in athletics or sports, for use by peace officers, or for use by official military organizations or organizations composed of veterans of the United States armed forces. 4. Toy paper caps containing not more than 0.25 of a grain of explosive composition per cap. (Ord. No. 1612, § 2, 5-3-2004) Sec. 18.05.030. Public display permitted when180. A. The fire chief and/or chief of police shall review and inspect all Director of Public Safety or designee may issue a permit for supervised public displays of fireworks, including "display fireworks," by the municipality, fair associations, amusement parks, or other organizations or groups of individuals upon completion of the necessary application and submission of appropriate fees as may be established by resolution of the city commission. A visual site inspection shall occur before any permit is issued. Submission of the application does not guarantee issuance of a permit. All applications under this section shall be made to the fire chief. B. Each display shall: 1. Be handled by a licensed, bonded pyrotechnic operator to be approved by the fire chief Director of Public Safety or designee; 2. Be located, discharged, or fired such that the display, in the opinion of the fire chief Director of Public Safety or designee, shall not be hazardous to persons or property; 3. Clearly post a "NO SMOKING" warning within 50 feet of the staging and discharge area established for the display, and no one may smoke within the defined area. C. The application for a permit shall be made in writing at least 15 days prior to the date of the display, and shall contain, at a minimum: 1. A map of the proposed display venue, including the temporary storage site, the parking and spectator viewing areas, the fireworks discharge point, location of structures and roads, streets, and alleys within a 1,000-yard radius, overhead obstructions or other hazards; 2. The name of the licensed and bonded pyrotechnic operator along with the operator's qualifications, training and experience, and the names of any assistants for the event; 3. The location of all fire hydrants, water spigots or other access points for water, and all other fire retardants or extinguishers available at or near the venue; 4. Proof of general liability insurance in an amount acceptable to the city, and which 180 Note changes requested by city staff. PROOFS Page 299 of 977 includes the city as an additional insured; 5. The name of the association, entity, organization or group and its organizing or supervising board or responsible parties for the event; 6. A complete list of the fireworks intended for use in the display together with their projectile range, if any; 7. The location, date and time of the display and written consent from the landowner; and 8. A detailed safety plan for the event. D. Upon inspection and issuance of the permit, and only then, sales, possession and use of fireworks for such display as detailed in the permit shall be lawful for that purpose only. E. Following the public display, the organizers and the pyrotechnic operator shall be responsible for clean-up of the display site, including disposal of all discharged fireworks and all non-discharged or "dud" fireworks in a safe manner. F. No permit issued under this article shall be subject to transfer. G. This permit may be revoked by the fire chief Director of Public Safety or designee when any of the conditions under which the permit was granted change, when a hazardous condition is determined to exist, or when, in the best judgment of the fire chiefDirector of Public Safety, such permit must be withdrawn in the interests of public safety, and may include violation of any rule, regulation or requirement of this article. (Ord. No. 1612, § 3, 5-3-2004) Sec. 18.05.040. Sale and discharge of fireworks. A. No individual, firm, partnership, corporation or association shall possess for sale, sell, or offer for sale, at retail, or discharge within the city limits, any fireworks, as defined herein, except as specifically provided in this article. B. No parent, guardian or custodian of any child under the age of majority shall knowingly permit or consent to the possession or discharge of fireworks by any child under the age of majority without proper supervision. Possession or discharge by any child under the age of majority within the city limits shall be prima facie evidence of the knowing permission or consent of such parent, guardian or custodian. C. No fireworks may be discharged within the boundaries of or within 300 feet of any public park owned or maintained by the city without a public display permit except as otherwise provided in this article. No fireworks may be discharged upon any public street, alley, road or right-of-way, except as otherwise provided in this article. No fireworks may be discharged within 1,000 feet of any hospital, nursing or assisted living facility. No fireworks may be discharged under or upon a motor vehicle, whether moving or not, or within 300 feet of any gas station, gas, oil or propane storage facility or other area which is highly flammable by nature. D. Subject to the limitations contained in this article, fireworks, as listed in subsection E of this section, may be discharged within the city limits only on private property of the owner, or with the owner's permission, or on paved city streets which are not arterial streets or collectors when such discharge is in a safe and sane manner, and limited to the July 4 holiday only: 1. Between 12:00 p.m. July 3 and 12:00 a.m. July 4; 2. Between 12:00 p.m. July 4 and 1:00 a.m. July 5; 3. Between 12:00 p.m. July 5 and 12:00 a.m. July 6; PROOFS Page 300 of 977 and for the New Year's Day holiday only from 11:00 p.m. December 31 until 1:00 a.m. January 1. As used in this subsection, the phrase "safe and sane manner" refers to actions which do not endanger life, limb or property of those in the area of the discharge. Nothing in allowing the discharge of fireworks within the city limits relieves the individual, firm, partnership, corporation or association of its responsibility for any injury or damage caused to individuals or property by the discharge of the fireworks. Any discharge, with or without a permit, is at the individual, firm, partnership, corporation or association's own risk, and is not sanctioned by this article. E. Permitted fireworks are the following type of Class C "common fireworks" among those listed in federal law: 1. A cardboard or heavy paper cylindrical tube or cone that: a. Produces a shower of color and sparks that reach a maximum of 15 feet; b. May whistle or pop; and c. Is not designed to explode or leave the ground; 2. A pyrotechnic wheel device: a. May be attached to a post or tree; and b. Contains up to six "driver" units or tubes; 3. Any device that: a. Spins, jumps, or emits popping sounds when placed on the ground; b. Does not exceed a height of 15 feet when discharged; and c. Does not travel laterally more than ten feet on a smooth surface when discharged; 4. Sparklers under 12 inches in length which do not have a magnesium make-up, glow worms, snakes, party poppers, trick noisemakers; and 5. Certain mortar type aerial devices and multi-shot cakes that are found acceptable by the fire chief Director of Public Safety or designee. F. When, in the opinion of the fire chiefDirector of Public Safety, drought or other conditions exist which, when coupled with the discharge of fireworks, would pose a hazard to persons or property, the fire chiefDirector of Public Safety shall issue a ban on the discharge of all fireworks until such time as the condition causing the ban ceases to exist. G. Any individual, firm, partnership, corporation or association discharging fireworks under this article shall, upon such discharge, be responsible for clean-up of the discharge site, including disposal of all discharged fireworks, all non-discharged or "dud" fireworks, and the associated debris from the discharged fireworks in a safe manner. H. The safe and sane discharge of fireworks in accordance with the provisions of this article shall not be deemed a violation of chapter 16, article 6. (Ord. No. 1612, § 4, 5-3-2004) Sec. 18.05.050. General liability insurance required. A. An individual, firm, partnership, corporation or association planning a public display of fireworks shall provide proof of general liability insurance in an amount acceptable to the city attorney181; and which includes the city as an additional insured. 181 Note change requested by city staff. PROOFS Page 301 of 977 B. Notice to the city shall be given ten days prior to any public display if any insurance policy required under this article is cancelled or subject to non-renewal. Notice shall be provided by the insured and the insurance carrier. C. A copy of the insurance policy for any public display shall be filed with the city clerk of the commission and shall indemnify the city against any damages to private or public property, as well as any injuries to persons, which may be caused by or incident to the public display. D. Any individual, firm, partnership, corporation or association discharging fireworks without a public display permit shall be deemed to be the responsible party and shall be liable for any damages incurred as the result of such discharge. The individual, firm, partnership, corporation or association insurance policy or policies maintained by the individual or entity discharging the fireworks shall be subject to any claim as a result of such discharge resulting in damage or injury. (Ord. No. 1612, § 5, 5-3-2004) Sec. 18.05.060. Enforcement. __ The Department of Public Safety, specifically the Police Department and Fire Department, shall enforce the rules and regulations of this chapter. A. Any police officer or firefighter may, in the enforcement of this article, seize, impound, remove or cause to be removed, at the expense of the owner, all stocks of fireworks offered for sale, sold, or in the possession of any individual, firm, partnership, corporation or association in violation of this article. Notice of the seizure and the reasons for the seizure shall be reported to the chief of policeDirector of Public Safety within 48 hours of the seizure. B. Fireworks seized under this section may be disposed of in a safe and proper manner by the police department of Public Safety ten days after seizure. C. Appeal of any seizure shall be filed with the chief of policeDirector of Public Safety in writing within five working days of the seizure. The decision of the chief of policeDirector of Public Safety on the appeal shall be final. (Ord. No. 1612, § 6, 5-3-2004) Sec. 18.05.070. Violation; penalty182. A. Any individual, firm, partnership, corporation or association violating the provisions of this article shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than $100.00 or more than $500.00 for a first offense; a fine of not less than $200.00 or more than $500.00 for a second offense; and a fine of not less than $300.00 or more than $500.00 for a third or subsequent offense. Each day of a violation constitutes a separate offense. In the case of a violation by a firm, partnership, corporation or association, the manager or members of the partnership or responsible officers or agents shall be deemed to be prima facie responsible, individually, and subject to the penalty as provided. B. Any damages caused or injuries sustained as a result of any violation of this article shall be ordered paid as restitution as a part of any conviction for any violation. C. The court may order the reimbursement of costs of enforcement, investigation, fire suppression services, and overtime related to a violation upon conviction. (Ord. No. 1612, § 7, 5-3-2004) 182 Use the general penalty instead? Keep as is. PROOFS Page 302 of 977 ARTICLE 6. EMERGENCY MEDICAL SERVICES* *State law reference—Emergency medical services, MCA 50-6-101 et seq. Sec. 18.06.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Ambulance" means a privately or publicly owned motor vehicle or aircraft that is maintained and used for transportation of patients. __ "City" means the city of Bozeman, Montana. 2. "Emergency medical service" means a pre-hospital or inter-hospital emergency medical transportation or treatment service provided by an ambulance or non- transporting medical unit. 3. "Patient" means an individual who is sick, injured, wounded or otherwise incapacitated or helpless. The term does not include a person who is nonambulatory and who needs transportation assistance solely because that person is confined to a wheelchair as the person's usual mode of mobility. __ "Person" means an individual, firm, partnership, association, corporation, company, group of individuals acting together for a common purpose or any other organization of any kind. (Code 1982, § 5.70.010; Ord. No. 1436, § 1, 1997) Sec. 18.06.020. License required. A. A person may not conduct or operate an emergency medical service within the corporate limits of the city without first obtaining a license from the city and otherwise complying with the requirements of this article. B. Applications for a license must be made in writing to the city's department of finance on forms specified by the department. C. Each license must be issued for a specific term which shall be concurrent with the term for which the applicant is licensed by the 183state department of public health and human servicesEnvironmental Sciences pursuant to the provisions of title 50, chapter 6, part 1, Montana Code Annotated (MCA 50-6-101 et seq.). Renewal may be obtained by demonstrating renewal of the required license by the department of public health and human servicesEnvironmental Sciences and compliance with the requirements of this article. D. There must be paid to the city, with each application for a license or for renewal of a license, a license fee of $500.00.184 E. The license is not transferable. F. The license is nonexclusive. (Code 1982, § 5.70.020; Ord. No. 1436, § 1, 1997) 183 The statute provides licensing by the state department of public health and human services. Change. 184 Do you want the fee placed in the fee schedule in chapter 5.05? Yes, but keep this subsection here. PROOFS Page 303 of 977 Sec. 18.06.030. Criteria for license. A. Any person desiring to obtain the license required by this article shall demonstrate the ability to meet the following requirements: 1. The applicant must possess a current license from the state department of public health and humanEnvironmental services to provide emergency medical services, both transport and treatment services, at the advanced life support level. 2. The applicant must provide emergency medical services at the advanced life support level throughout the city, 24 hours per day, seven days per week. 3. The applicant must have adequate personnel, vehicles, equipment and facilities to respond at the advanced life support level to emergency calls to all locations within the corporate limits of the city within eight minutes or less on at least 90 percent of such calls. Ambulance response time to an emergency request shall be calculated as the actual elapsed time in minutes and seconds from the moment the call is received by the applicant to the moment the first capable unit arrives at the scene of the incident. Where multiple ambulances are dispatched to the same emergency incident, only the response time of the first ambulance to arrive at the scene shall be counted. 4. 185The applicant must have a commercial general liability policy, in a form acceptable to the city, insuring the applicant for not less than the sum of $10,000,000.00, per occurrence, for bodily injury or death and $10,000,000.00, per occurrence, for loss or damage to property. Said policy shall name the city as an additional named insured. The applicant must furnish proof of such insurance coverage prior to issuance of the license. 5. 186The applicant must provide a performance bond, running to the city, in the amount of $250,000.00, conditioned upon applicant's full compliance with all provisions of this article during the entire period that applicant is licensed by the city. Failure to remain in compliance with all requirements of this article for the full license period, without a written variance from the city, may result in cancellation of the license and, at the city's sole option, forfeiture of the performance bond to the city. 6. The applicant must comply with all rules and regulations governing emergency medical services and emergency medical technicians as promulgated by the Montana Department of Public Health and Human ServicesEnvironmental Sciences and the Board of Medical Examiners as contained in the Administrative Rules of Montana. (Code 1982, § 5.70.030; Ord. No. 1436, § 1, 1997) Sec. 18.06.040. Exemptions. A. Applicant shall be exempt from the response time and performance requirements of section 18.06.030, only as follows: 1. Weather conditions. In the event of an onset of such inclement weather that the city fire chief or designee, in the chief's sole discretion, believes that the threat to system-wide patient care outweighs the threat to the individual patient care from a delayed response time, the city fire chief may declare a weather emergency, thus 185 Is the insurance amount high enough now? Yes. 186 Is the bond amount high enough now? Yes. PROOFS Page 304 of 977 suspending response time requirements. A weather emergency will be declared only in times of unusually hazardous driving conditions. 2. System overload. During periods of unusual system overload, which shall mean that at least two emergency responses are occurring simultaneously within the incorporated city limits, applicants shall be exempt from the requirements of this article and shall use "best efforts" to maintain coverage and performance throughout the incorporated city limits. 3. Declared disaster. During a declared disaster either within the incorporated city limits or in a neighboring community, and confirmed by the city fire chief, applicants shall be exempt from the requirements of this article and shall use "best efforts" to maintain coverage and performance throughout the incorporated city limits. (Code 1982, § 5.70.040; Ord. No. 1436, § 1, 1997) Sec. 18.06.050. Cancellation of license. A. The city may cancel a license if it finds that the licensee has: 1. Violated any provision of this article or of the rules promulgated by the state department of public health and human servicesEnvironmental Sciences or the board of medical examiners, as contained in the Administrative Rules of Montana. 2. Failed or refused to remedy or correct the violation within the time and in the manner directed by the city. (Code 1982, § 5.70.050; Ord. No. 1436, § 1, 1997) Sec. 18.06.060. Notice and hearing required. A. The city shall not deny or cancel a license without: 1. Delivery to the applicant or licensee of a written statement of the grounds for denial or cancellation or the charge involved. 2. An opportunity to answer at a hearing before the city commission to show cause, if any, why the license should not be denied or cancelled. After receipt of written notice of grounds for denial or cancellation or charges, any applicant or licensee desiring a hearing before the city commission must make written application within ten days. (Code 1982, § 5.70.060; Ord. No. 1436, § 1, 1997) Sec. 18.06.070. Existing services. Any person providing emergency medical services within the city as of the effective date of the ordinance from which this article is derived shall have a period of 120 days to meet the requirements and obtain the license required by this article. (Code 1982, § 5.70.070; Ord. No. 1436, § 1, 1997) Sec. 18.06.080. Exemptions. A. The provisions and requirements of this article shall not apply to: 1. The fire department of the city. 2. Any person providing emergency medical services outside the city who, in the course of providing such services, transports a patient from outside the city into or through the city. 3. Any person providing emergency medical services within the city who is providing PROOFS Page 305 of 977 such services at the request of the city pursuant to a written mutual aid agreement between the city and the person. (Code 1982, § 5.70.080; Ord. No. 1436, § 1, 1997) 5.70.090. Penalty187. In addition to all other penalties provided in this chapter, any persons violating the provisions of this chapter shall, upon conviction thereof, be punished as provided in section 1.16.010. Each day such violation continues or occurs shall be considered a separate offense. (Code 1982, § 5.70.090; Ord. No. 1436, § 1, 1997) 187 This section is unnecessary. Delete. PROOFS Page 306 of 977 Chapter 19 RESERVED PROOFS Page 307 of 977 Chapter 20 MOBILE HOMES AND RECREATIONAL VEHICLES ARTICLE 1. IN GENERAL ARTICLE 2. TRAILER CAMPS AND AUTO COURTS*188 *State law reference—Tourist campgrounds and trailer courts, MCA 50-52-101 et seq. Sec. 20.02.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Approved" means whatever material, workmanship, method, appliance, construction or other matter which meets the requirements of this article, and the approval of the department charged with the administration and enforcement of this article. 2. "Auto court" means any multiple dwelling or group of dwellings, other than bungalow courts, hotels or apartment houses, which is designed or intended for the temporary residence of motorists or travelers. The term "auto court" also includes "auto camp" and "tourist camp." 3. "Bungalow court" means a group of separate dwellings facing directly on a common court, place or street. 4. "Camp car and/or trailer" means any unit used for living or sleeping purposes and which is equipped with wheels or similar devices used for the purpose of transporting said unit from place to place, whether by motive power or other means. __ "Persons" means any person, partnership, corporation or association. 5. "Public camp" means an approved area, lot or parcel of land regularly used or intended regularly to be used for temporary camping in tents or other portable shelters; provided, however, that an occasional and temporary use of an area, lot or parcel of land for camping by a single camping party shall not be construed as a public camp within the meaning of this article. (Code 1982, § 15.52.010) Sec. 20.02.020. Permit required; application, fee and issuance conditions. A. No person shall construct, establish, maintain or operate an auto court, bungalow court or public camp, or cause or permit the same to be constructed, established, maintained or operated in the city without a permit to do so from the city commission. Application for such a permit shall be in writing, and shall state the extent and character of the proposed accommodations and camping spaces provided for. The application shall be presented to the city commission, accompanied by a fee of $5.00.189 The commission shall not grant any permit for the 188 The terminology is rather out-dated. Are you still enforcing this chapter? Leave as is as the chapter may be deleted in its entirety in favor of restrictions on camping/permits in the park/public assembly provisions. 189 The fee is rather low. Adopt by resolution? Keep as is. PROOFS Page 308 of 977 construction or establishment of an auto court, bungalow court or public camp in any location where such auto court, bungalow court or public camp is not allowed by the provisions of chapter 38. B. Upon the approval of such application by the city commission, the permit applied for shall be granted. After the permit has been issued, complete plans and specifications for the construction of such auto court, bungalow court and/or public camp shall be submitted to the health department and the building department of the city. If such plans and specifications meet with the requirements of this article and other applicable ordinances of the city, the health department shall place a stamp of approval thereon and the building inspector shall then issue a building permit for the construction of the buildings shown thereon. The building permit fees shall be the same as required for other like structures erected in the city. A separate building permit shall be required for each separate building or structure erected in such auto court, bungalow court and/or public camp. (Code 1982, § 15.52.020) Sec. 20.02.030. Camping on city property; permit required. It is unlawful for any person to camp on any property belonging to or under the control of the city without having first secured from the city manager a written permit so to do. Such camping permits may be issued by the city manager upon such terms and conditions and for such periods of time as in the city manager's judgment shall be proper, and shall be revocable by the city manager at any time. (Code 1982, § 15.52.030) Sec. 20.02.040. Camp cars and trailers; use restrictions. A. It is unlawful to permit wastewater or material from sinks, showers or other fixtures in camp cars or trailers to be deposited on any street, alley, auto court, public camp, or upon any lot within the corporate limits of the city. B. Sinks, showers or other similar fixtures in camp cars or trailers, when in use, must be connected to some approved disposal system in a manner acceptable to the health officer and the director of public safety services.190 C. A camp car and/or trailer having its running gear, wheels, or other equipment designed for the transportation of such vehicle from one location to another removed, or blocked up, or otherwise made stationary and in use for living quarters shall be classed as a dwelling, and as such be subject to all the provisions of the building chapters provisions of this Code. (Code 1982, § 15.52.040) Sec. 20.02.050. Caretakers, supervision, and sanitary requirements. A. All auto courts, bungalow courts and public camps shall be provided at all times with a resident caretaker whose duty shall be to enforce all sanitary rules and regulations and see that no part of this article is violated. The management of every auto court, bungalow court and/or public camp shall assume responsibility for maintaining in good repair and operation all sanitary appliances on the premises. Dogs shall at no time be turned loose or be permitted to run at large on such premises. B. Supervision and equipment sufficient to prevent littering of the ground with rubbish, garbage or other refuse shall be provided and maintained. Fly-tight metal depositories 190 Should "director of public safety" be changed to "director of public services"? Yes. Change to “director of public services.” PROOFS Page 309 of 977 with tight-fitting covers for such materials shall be provided and conspicuously located. Each and every dwelling and/or camping space shall be within a distance of not over 100 feet from such depository. Said depositories shall not be permitted to become foul-smelling, unsightly, or breeding places for flies. (Code 1982, § 15.52.050) Sec. 20.02.060. Register to be kept; inspection requirements. A. It shall be the duty of the management or caretaker to keep a record of all patrons, including each individual of a camping party. The record shall be in the form of a hotel registry. The registry shall specify the date of arrival, and in the event the patron or camping party is traveling by means of an automobile, the register shall further specify the name of the owner of the automobile, the make of the automobile, the state in which the automobile is registered, the number of the license thereof, and the year of its issuance. The register shall at all times be open for inspection to all police officers of the city. B. Each and every auto court and public camp must be thoroughly inspected by the city health officer. (Code 1982, § 15.52.060) Sec. 20.02.070. Water supply. A water supply of pure, sanitary quality shall be provided in ample quantity to meet all requirements, the water to be furnished and available through an approved pipe-distribution system leading directly from the city water mains or other approved source. Water-supply faucets shall be located not more than 200 feet from any camping space; also, a water service pipe shall be installed for supplying water to each separate apartment, dwelling or bungalow, and in each separate apartment of any multiple-apartment dwelling. (Code 1982, § 15.52.070) Sec. 20.02.080. Refuse and sewage disposal. A. All garbage, waste and refuse shall be promptly and entirely removed from the premises as required by the city health officer. A sufficient number of approved incinerators shall be provided for burning all combustible rubbish. B. All auto courts, bungalow courts and public camps shall be provided with a complete approved sewage or other approved disposal system. Water-flushed water closets shall be provided and maintained in clean, sanitary condition. In those parts of the city where public camps are permitted, such camping spaces shall be provided with approved community toilets. Separate toilets shall be provided for men and women, located in separate compartments, the entrances to which shall be not less than ten feet apart. One water closet and one lavatory or sink shall be provided for each ten women, or fraction thereof of the maximum number of individual persons up to the capacity of any public camp; and one shower shall be provided for each 20 persons, or major fraction thereof, up to such capacity. Twenty-five percent of the required water closets for men may be substituted by approved urinals or approved equivalent. One shell or lip urinal or 24 inches of urinal trough may be computed as one water closet. The location of all toilets shall be plainly indicated by approved signs. All toilets shall be screened fly-tight and be well illuminated both day and night. All toilets, shower and/or wash-room floors shall be constructed of concrete, tile, or equal material properly drained and connected to the sewer system. All toilet, shower and/or washroom walls and partitions shall be impervious to moisture. All toilets and water closets shall be provided with at least one washbasin approved by the health officer and kept and maintained in a clean and sanitary condition. C. A sufficient number of approved cast iron enameled slop sinks shall be provided, and PROOFS Page 310 of 977 each shall be connected with the sewerage or other approved disposal system, these sinks to be used for the disposal of domestic wastewaters only. (Code 1982, § 15.52.080) Sec. 20.02.090. Protection against fires. No fires shall at any time be so located as to endanger automobiles or other property. No fires shall be left unattended at any time, and all fires shall be completely extinguished before leaving. No campfires will be permitted excepting in approved, allotted public camps having approved camping spaces. (Code 1982, § 15.52.090) Sec. 20.02.100. Drainage requirements. The area, lot or tract of land upon which any auto court or public camp is located or maintained shall be well drained and properly graded so as to prevent stagnant water or muddy conditions. (Code 1982, § 15.52.100) Sec. 20.02.110. Space and layout requirements for dwellings and driveways. The space or unit in a public camp allotted to each camping party shall contain not less than 360 square feet of ground area. All dwellings shall be located on a space of not less than 18 feet by 20 feet. Nothing herein contained shall be deemed to modify or dispense with the court and yard requirements for apartments or dwellings as required by any other ordinances of the city. All dwellings and camping spaces shall be arranged in rows facing on a continuous driveway at least 25 feet wide. For the purposes of computing the number of persons to be accommodated in any auto court, campground or other such location as provided in this article, each 360-square-foot area shall be required for three persons. (Code 1982, § 15.52.110) Sec. 20.02.120. Building construction and maintenance. A. All buildings shall comply with all requirements for such structures as provided herein and/or in section 10.02.030. It is unlawful to prepare or cook food in any bathroom, toilet room, closet, garage, or any room used for sleeping purposes. All required windows, doors and similar openings must be fully protected with screens. No kitchen shall have less than 12 square feet of window area. All windows shall be constructed so that at least half of each window can be opened. Each building shall be provided with approved means of lighting the same at night. This applies to all rooms, kitchens, baths, toilets, halls, stairs, garages, etc. B. All floors shall be permanently located above the ground as the building inspector shall require, and space underneath shall be kept free from obstruction. The flooring proper shall be constructed of tongue-and-groove material. Interior walls shall be plastered or constructed of surfaced lumber, or other material that may easily be kept clean. Each building shall be cleaned daily, and after each occupancy shall be thoroughly cleaned. If bedding is provided, it must be kept in a clean and sanitary condition. (Code 1982, § 15.52.120) Sec. 20.02.130. Article provisions not exclusive. Nothing in this article shall be deemed to conflict in such a way as to modify or amend any of the requirements of section 10.02.030, but is to be deemed supplemental thereto for the special purposes set out herein. (Code 1982, § 15.52.130) PROOFS Page 311 of 977 Sec. 20.02.140. Violation; penalty.191 A. Any person, as defined herein, who violates any of the provisions of this article, or fails to comply with any order or regulation made thereunder, or who operates or maintains an auto court or bungalow court, or builds, constructs, or makes alterations in violation of any part of this article shall, upon conviction thereof, be punishable by a fine of not exceeding $300.00 or by imprisonment for not less than ten days and not more than 90 days, or by both such fine and imprisonment. B. Every such person as defined in this article shall be deemed guilty of a separate offense for each and every day any provision of this article is violated. (Code 1982, § 15.52.140) 191 Use the general penalty instead? Keep as is. PROOFS Page 312 of 977 Chapter 21 RESERVED PROOFS Page 313 of 977 Chapter 22 MUNICIPAL COURT*192 *State law reference—Municipal courts, MCA 3-6-101 et seq. Sec. 22.01.010. Establishment. A. The municipal court is hereby established pursuant to title 3, chapter 6, Montana Code Annotated (MCA 3-6-101 et seq.). The court is established for all intents and purposes set forth in state law and any reasonable inference therein. B. The municipal court will be a court of record by electronic recording or stenographic transcription and will assume continuing jurisdiction over all pending city court cases. __ 193The municipal court will commence on January 1, 2000. (Code 1982, § 2.06.010; Ord. No. 1490, § 1, 1999) Sec. 22.01.020. Sessions. A. The municipal court will be in a continuous session at times and on days established by the court from nine o’clock a.m. until noon and from one o’clock until four o’clock p.m. every day except nonjudicial days. The A judge may set additional specific hours as necessary. B. Nonjudicial days are defined as any legal holidays, or days appointed by the President of the United States or by the Governor of Montana for a public fast, thanksgiving, or holiday except as set forth in subsection C of this section. C. The municipal court will, on any day: 1. Give instructions to a jury when deliberating; 2. Receive a verdict or discharge a jury; 3. Exercise its powers in a criminal action; and 4. Issue writs of prohibition, injunctions and habeas corpus. (Code 1982, § 2.06.020; Ord. No. 1490, § 1, 1999) Sec. 22.01.030. Office of clerk of the municipal court. The position of clerk of the municipal court is established. The clerk will work under the supervision and control of the chief municipal judge department of finance. (Code 1982, § 2.06.030; Ord. No. 1490, § 1, 1999) Sec. 22.01.040. Duties of the clerk of the municipal court. The clerk of the municipal court will establish, maintain, retain and administer all municipal court records by means of electronic filing or storage or both. In any event, the clerk will maintain a paper copy of all records established. The clerk will assist the municipal judge in the recording and signing of court proceedings as well as general operations of the court. The clerk will have all other powers and duties as prescribed in MCA 3-5-501, relevant to a municipal court as well as all other duties assigned by the department of finance. (Code 1982, § 2.06.040; Ord. No. 1490, § 1, 1999) 192 Note changes throughout requested by city staff. 193 This subsection is unnecessary now. Delete. PROOFS Page 314 of 977 Sec. 22.01.050. Office of municipal judge. The office of the municipal judge is hereby established for the city. There will be at least one full-time municipal judge as determined by ordinance of the commission and there may also be one or more part-time assistant judges appointed by the chief municipal judge subject to approval by the commission. If there is only one full-time judge, that judge shall be considered the chief judge. If there is more than one full-time judge, the chief judge shall be determined in accordance with title 3, chapter 6, of the Montana Code Annotated (MCA 3-6-101 et seq.). The judge will not be employed in additional to the employment as a municipal judge. (Code 1982, § 2.06.050; Ord. No. 1490, § 1, 1999) Sec. 22.01.060. Method of selection and term of office. The Each person holding the office of full-time municipal judge will be elected at a general election and will hold office for a period of four years. Each assistant part-time judge shall serve for the term of the appointing full-time municipal judge. (Code 1982, § 2.06.060; Ord. No. 1490, § 1, 1999) Sec. 22.01.070. Qualifications of municipal judge. A municipal judge, at the time of election or appointment, shall will be a resident for one year of and registered to vote in the county the city. The municipal judge must have the same qualifications as a district judge, as set forth in article VII, section 9 of the 1972 Constitution, except that the judge need only be admitted to the practice of law in the state for a minimum of two three years prior to the date of election or appointment. (Code 1982, § 2.06.070; Ord. No. 1490, § 1, 1999) Sec. 22.01.080. Powers and duties of municipal judge. The A municipal judge will have those powers and duties as are provided by state law and the state supreme court. The A judge will also have all duties imposed by city ordinances. The A judge will hear and determine all suits, actions and prosecutions instituted in the municipal court pursuant to state law and ordinances of the city. (Code 1982, § 2.06.080; Ord. No. 1490, § 1, 1999) 2.06.090. Procedure for court appointed counsel. __ Upon request for court appointed defense counsel, the municipal judge will require the defendant complete and sign a written application for court appointed counsel as provided in the Montana Supreme Court Bench Book. This application will be notarized prior to submission. The municipal judge will verify all information provided by the defendant prior to appointing a public defender. __ The municipal judge will establish written criteria for determining proper appointment of defense counsel for indigent defendants in criminal actions and appoint counsel to all individuals who qualify under this criteria. The municipal judge will provide a copy of the criteria to the city commission and the city manager within 30 days of taking office or assuming the position of municipal judge. __ The municipal judge will provide the city commission and city manager with a report indicating the number and type of cases in which the defendant received appointed counsel; the income level of each individual appointed counsel; and any other information the municipal judge feels pertinent. The report will be due on or before the 15th of every month. (Code 1982, § 2.06.090; Ord. No. 1490 § 1, 1999) PROOFS Page 315 of 977 Sec. 22.01.090. Compensation and expenses. A. The city commission will establish the annual salary of the municipal judge by resolution ordinance. A municipal judge who appoints an assistant judge will set the assistant judge’s compensation. B. The municipal judge will receive any actual and necessary expenses as budgeted in the city's annual budget. (Code 1982, § 2.06.100; Ord. No. 1490, § 1, 1999) Sec. 22.01.100. Oath and deposit of funds. A. The oath of office will be filed with the office of the city clerk of the commission. B. The moneys, from whatever source, collected under the jurisdiction of the municipal judge will be deposited and managed in accordance with law the rules of the Montana Supreme Court. C. So long as the rules of the Montana Supreme Court do not require otherwise, All such moneys will be deposited daily with the treasurer of the city as directed by the director of finance. D. In order to establish an appropriate control of moneys deposited temporarily for bonds, appearance bonds, etc., all such moneys will be placed into a trust fund to be maintained and controlled by the clerk of the municipal court. Upon final disposition of the matter to which such a bond pertains by the municipal court, the clerk of the municipal court will disburse such moneys according to the direction of the municipal judge. (Code 1982, § 2.06.110; Ord. No. 1490, § 1, 1999) Sec. 22.01.110. Qualifications of a judge pro tempore. A. When a judge of the municipal court has been disqualified or is sick or for any reason unable to act, the judge will call in a qualified practicing attorney of the city who will be judge pro tempore with the same powers for the purposes of the cause as the judge of the municipal court. B. Any person acting as judge pro tempore must meet the following qualifications: 1. Be a sitting judge of a court of record or be an attorney admitted to practice in the state for a period of not less than five two years; and 2. Be either a resident of the county city or have a law practice or other law-related employment whose business address is within the county Bozeman city limits. (Code 1982, § 2.06.120; Ord. No. 1490, § 1, 1999) State law reference—Similar provisions, MCA 3-6-204. Sec. 22.01.120. Vacancy filled by commission. Should a vacancy occur in the office of a municipal judge, the city commission will appoint a qualified individual to serve for the remainder of the term. (Code 1982, § 2.06.130; Ord. No. 1490, § 1, 1999) Sec. 22.01.130. Appeal to district court. A. A party may appeal a municipal court judgment or order to the district court in either criminal or civil actions. An appeal to the district court is confined to review of the record and questions of law, subject to the supreme court's rulemaking and supervisory authority. B. On appeal, the clerk of the municipal court will transfer the record consisting of an PROOFS Page 316 of 977 electronic recording or stenographic transcription of the case tried, together with all papers filed in the action. The clerk may charge the requestor a reasonable fee for any copies or transcription made necessary by the appeal. (Code 1982, § 2.06.140; Ord. No. 1490, § 1, 1999) Sec. 22.01.140. Limitation on appeals. A. A party in a civil case may appeal a municipal court judgment or order to the district court in cases where the amount in controversy exceeds $1,000.00. B. In criminal actions, a defendant may appeal a municipal court judgment or order to the district court in cases where the amount in controversy exceeds $300.00 or where incarceration has been ordered. The state may appeal in any instance set forth in state law. C. Notwithstanding the foregoing, the district court may, in the interests of justice, accept appeal jurisdiction upon petition of the aggrieved party. (Code 1982, § 2.06.150; Ord. No. 1490, § 1, 1999) PROOFS Page 317 of 977 Chapter 23 RESERVED PROOFS Page 318 of 977 Chapter 24 OFFENSES, MISCELLANEOUS PROVISIONS* *State law reference—Criminal Code of 1973, MCA 45-1-101 et seq. ARTICLE 1. IN GENERAL Sec. 24.01.010. Territorial application of police powers; liberal construction of provisions. A. Territorial application of police powersTitle 9 provisions.194 Pursuant to state law, Bozeman police officers shall have powers to respond and control disturbances of the peace and have powers of arrest within the city and for three miles outside of the corporate city limits. Nothing herein shall limit the jurisdiction of a police officer pursuant to title 7, title 10, or title 44, Montana Code Annotated (MCA 7-1-101 et seq., 10-1-101 et seq., 44-1-101 et seq.), or any other mutual aid agreement. The provisions of this title shall apply to the city in any event, and to all territory within three miles of the corporate limits of the city except as otherwise herein provided. B. Liberal construction of provisions. The provisions codified in this chaptertitle shall be given a liberal construction. (Code 1982, §§ 9.02.010, 9.02.020) ARTICLE 2. MUNICIPAL INFRACTIONS* *State law reference—Municipal infractions, MCA 7-1-4149 et seq. Sec. 24.02.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Municipal infraction" means any violation of this Code which has been specifically declared to be a municipal infraction under provisions of this Code. 2. "Officer" means any employee or official authorized to enforce provisions of this Code or municipal regulations. 3. "Repeat violation" means a recurring violation of the same section of this Code. Each day that a violation occurs or is permitted to exist constitutes a separate and distinct infraction. (Ord. No. 1696, § 1(1.24.010), 3-5-2007) Sec. 24.02.020. Civil citations; service and requirements. A. An officer may issue a civil citation to a person who commits a municipal infraction. The civil citation may be served on the defendant by any one of the following methods: 1. Personal service; 2. By certified mail addressed to the defendant at the defendant's last known mailing address, return receipt requested; or, 3. By publication, in the manner described in Rule 4D(5) of the Montana Rules of Civil Procedure. 194 Do you have such authority? Note changes. PROOFS Page 319 of 977 B. A copy of the citation must be retained by the issuing officer and one copy be sent to or filed with the clerk of the municipal court. C. The citation shall serve as notification that a municipal infraction has been committed and shall contain the following information: 1. The name and address of the defendant; 2. The name or description of the infraction attested to by the officer issuing the citation; 3. The location and time of the infraction; 4. The amount of the civil penalty to be assessed or the alternative relief sought, or both; 5. The manner, location and time in which the penalty may be paid; 6. The time and place of court appearance; and 7. The penalty for failure to appear in court. (Ord. No. 1696, § 1(1.24.020), 3-5-2007) Sec. 24.02.030. Court proceedings. A. If the total amount of civil penalties do not exceed $3,000.00, the matter shall be tried before the municipal court judge in the same manner as a small claim. If the total amount of civil penalties assessed exceeds $3,000.00, the matter must be tried before a district court judge. B. The city has the burden of proof that the municipal infraction occurred and that the defendant committed the infraction. The proof must be by clear and convincing evidence. C. The court shall ensure that the defendant has received a copy of the charges and that the defendant understands the charges. The defendant may question all witnesses who appear for the municipality and produce evidence or witnesses on the defendant's behalf. D. The defendant may be represented by counsel of the defendant's own choosing and at the defendant's own expense. E. The defendant may answer by admitting or denying the infraction. F. If a municipal infraction is proven, the court shall enter judgment against the defendant. If the infraction is not proven, the court shall dismiss the charges. G. If the person named in the citation is shown to have been served with the civil citation in the proper manner and, without good cause, fails to appear in response to the citation, judgment shall be entered against the person by the court. (Ord. No. 1696, § 1(1.24.030), 3-5-2007) Sec. 24.02.040. Penalties. A. A violation of a municipal infraction is a civil offense and punishable by a civil penalty. B. For a first violation, a civil penalty of not more than $300.00 shall be imposed. C. For each repeat violation, a civil penalty not to exceed $500.00 shall be imposed. D. If there is a specific Code provision that provides for a specific penalty, the specific Code provision shall apply provided the penalty does not exceed the civil penalties provided by this section. E. Any statutory surcharges required by state law or this Code must be imposed in addition to the civil penalty. PROOFS Page 320 of 977 F. All penalties and forfeitures collected by the court for municipal infractions shall be remitted to the city in the same manner as fines and forfeitures collected for criminal offenses. G. Defendant against whom judgment is entered shall pay court costs and fees as in small claims court under title 25, chapter 35 of the Montana Code Annotated (MCA 25-35-501 et seq.) in addition to the penalties imposed by the court. H. In addition to the imposition of civil penalties authorized by law against a defendant, the city may seek alternative relief from the court in the same action. Alternative relief may consist of any of the following: 1. Direct that payment of the civil penalty be suspended or deferred under conditions imposed by the court; 2. Order the defendant to abate or cease the violation; 3. Authorize the city to abate or correct the violation; 4. Order the city's costs for abatement or correction of the violation be entered as a judgment against the defendant or assessed against the property where the violation occurred, or both. I. The municipal court may assess or enter judgment for costs of abatement or correction in any amount not to exceed the jurisdictional amount for a money judgment in a civil action under MCA 3-11-103. If the city seeks abatement or correction costs in excess of this amount, the matter shall be referred to district court for hearing and entry of an appropriate order. J. A defendant who willfully violates the terms of an order imposed by the court is guilty of contempt. (Ord. No. 1696, § 1(1.24.040), 3-5-2007) Sec. 24.02.050. Appeals. A. The defendant or the city may file a motion for a new trial or may appeal the decision to district court. B. A factual determination made by the trial court, supported by substantial evidence as shown on the record, is binding for purposes of appeal relating to the violation at issue, but is not admissible or binding as to any future violations for the same or similar ordinance provision by the same defendant. (Ord. No. 1696, § 1(1.24.050), 3-5-2007) Sec. 24.02.060. Issuance of civil citations not grounds for further legal action. Except for willful or wanton misconduct on the part of the city, the issuance of a civil citation for a municipal infraction or the ensuing court proceedings do not provide an action for false arrest, false imprisonment, or malicious prosecution. (Ord. No. 1696, § 1(1.24.060), 3-5-2007) Sec. 24.02.070. Environmental actions. An action brought by the city for an environmental violation does not preclude, and is in addition to, any other enforcement action that may be brought under state law. (Ord. No. 1696, § 1(1.24.070), 3-5-2007) PROOFS Page 321 of 977 ARTICLE 3. OFFENSES AGAINST GOVERNMENTAL FUNCTIONS Sec. 24.03.010. Interfering with public officials prohibited. No person shall interfere with, obstruct or intimidate any official or employee of the city in the performance of the official's or employee's official duty; nor shall any person assault or threaten to assault, nor use any abusive or insulting language toward such official or employee in the official's or employee's presence in connection with or arising out of any business of the city theretofore, then being, or thereafter to be done, transacted or performed by such official or employee for, and as representative of the city, in any capacity. (Code 1982, § 9.10.010) State law reference—Obstructing peace officer or other public servant, MCA 45-7-302. 9.12.010. Malicious prosecution described--court costs recovered from prosecutor195. When any person has been arrested and brought to trial for any alleged violation of any ordinance, and it appears that the prosecutor or complaining witness has made complaint maliciously and without probable cause, judgment shall be rendered against the prosecutor or complaining witness for costs; and the court may issue execution to recover the same, as judgment for debt. Whenever the police judge has reason to believe any complainant is actuated by malice in making complaint, the judge, before issuing process, may require the complainant to deposit a sum sufficient to secure the probable costs. (Code 1982, § 9.12.010) 9.14.010. Resisting arrests or breaking jail deemed misdemeanor196. If any person resists arrest or attempts to escape from any policeman when in proper discharge of his duty, and, after being informed of the legal authority and official character of officer, or being in prison or confined for the breach of any ordinance or held for trial for any such breach, breaks jail and escapes from such imprisonment or detention, such person is guilty of a misdemeanor. (Code 1982, § 9.14.010) State law reference—Escape, MCA 45-7-306; resisting arrest, MCA 45-7-301; Sec. 24.03.020. 911 emergency telephone service. A. Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: 1. "Emergency" is defined by title 10, chapter 4, Montana Code Annotated (MCA 10-4- 101(4)197 et seq.) as being any event that requires dispatch of a public or private safety agency. 2. "Emergency services" are defined by title 10, chapter 4, Montana Code Annotated (MCA 10-4-101(5) et seq.) as being services provided by any public or private safety agency, including law enforcement, firefighting, ambulance or medical services, and civil defense services. 195 Deleted at request of city staff. 196 Deleted at request of city staff. 197 All of the subsection numbers in MCA 10-4-101 and 45-2-101 have changed. I suggest referring only to the section number. Refer to the chapter instead. PROOFS Page 322 of 977 3. "Knowingly" and "purposely" are defined in title 45, chapter 2, Montana Code Annotated (MCA 45-2-101 et seq.)(33) and (58), respectively. 4. "Misuse" means accessing the 911 telephone number for other than reporting an emergency event. 5. "Private safety agency" is defined by title 10, chapter 4, Montana Code Annotated (MCA 10-4-101(10) et seq.) as being any entity, except a public safety agency, providing emergency fire, ambulance or medical services. 6. "Public safety agency" is defined by title 10, chapter 4, Montana Code Annotated (MCA 10-4-101(12) et seq.) as being the state and any city, county, city-county consolidated government, municipal corporation, chartered organization, public district, or public authority located in whole or in part within this state that provides or has authority to provide emergency services. B. Misuse of the 911 emergency telephone service prohibited. It shall be unlawful for any person to purposely or knowingly misuse the 911 emergency telephone service by accessing the 911 telephone service for a purpose other than an emergency. (Code 1982, §§ 9.16.010, 9.16.020; Ord. No. 1327, §§ 1, 2, 1991) 9.16.030. Violation--penalty198. Any person who violates any provision of this chapter shall be punished by a fine not exceeding five hundred dollars or by imprisonment in the county jail for a period not to exceed six months, or by both such fine and imprisonment. (Code 1982, § 9.16.030; Ord. No. 1327 § 3, 1991) 9.20.010. Acts constituting misuse of telephone199. No person shall, within the city, willfully annoy or disturb any other person by ringing or causing to be rung any telephone bell, or by calling or causing to be called any person over any telephone for the purpose of disturbing or annoying any such person, or use profane, or obscene, or abusive language over any telephone. (Code 1982, § 9.20.010) 9.44.010. Generally200. __ It is unlawful for any person to be a "peeping person." __ The term "peeping person" means one who peeps, looks or peers through windows or doors or other openings on the premises of another where a reasonable expectation of privacy exists for the purpose of spying upon or invading the privacy of the person spied upon and the doing of any other act of a similar nature which invades the privacy of such persons. (Code 1982, § 9.44.010; Ord. No. 1372 § 2, 1993; Ord. No. 1232 §§ 1--3, 1987) Sec. 24.03.030. Hotel guest registers. A. Definition. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: 198 This section is covered by the general penalty. Delete. 199 Deleted at request of city staff. 200 Deleted at request of city staff. PROOFS Page 323 of 977 1. "Hotel" means and includes motels, inns, boardinghouses and lodginghouses. B. Guests. 1. Within the meaning of this section a "guest" is any person who resorts to a hotel within the limits of the city for refreshment or lodging for any period of time during the day or night. 2. Every hotel in the city shall keep and maintain a register in which guests shall enter their name and address upon the day of arrival. 3. Failure to provide or maintain such a register, or failure to require any guest to enter their name and address therein on the day of arrival, or to knowingly enter or permit such guest to enter a false or fictitious name or address in such register as the name and address of such guest, shall be a violation of this section. C. Failure to sign register; false entries. Any guest who fails or refuses to enter their name and address in the register provided upon their arrival, or who enters a false or fictitious name or address as the guest's own in such register, shall be deemed guilty of a violation of this section. (Code 1982, §§ 5.40.010--5.40.030; Ord. No. 1117, § 11, 1982) State law reference—Hotels, motels and roominghouses, MCA 50-51-101 et seq. ARTICLE 4. OFFENSES AGAINST PROPERTY*201 *State law reference—Criminal mischief, MCA 45-6-101. Sec. 24.04.010. Injuring property or plants and trespassing prohibited. No person shall, within the city, willfully and/or wantonly destroy, injure or deface the goods or property of another; nor wantonly destroy, break or injure any shade, fruit or ornamental tree, flower, flowers or flower bed, nor habitually trespass upon the lawn, garden or premises of another, nor leave or deposit refuse, rubbish or garbage thereon at any time. (Code 1982, § 9.66.010) Sec. 24.04.020. Malicious damage to property prohibited. Any person who, mischievously or maliciously, hacks, breaks, girdles or injures any tree, or breaks or injures any sign, signboard, window, door, gate, fence, house, outhouse, building, or part thereof, the property of another, shall be deemed guilty of committing a nuisance, and upon conviction shall be punished as for a misdemeanor. (Code 1982, § 9.66.020) Sec. 24.04.030. Hurling missiles and injuring property prohibited. Any person who, within the city limits, throws any stick, stone, missile or other thing or things whereby any property of another shall become broken, destroyed or injured, shall have committed a nuisance, and upon conviction shall be punished as for a misdemeanor. (Code 1982, § 9.66.030) 201 Many of these sections could be combined, such as having only one section for damaging property. Many of the sections in this chapter (.010 through .050, .070, .080, .100) could certainly be eliminated because of 45-6-101 (criminal mischief). This should be reviewed after codification. PROOFS Page 324 of 977 Sec. 24.04.040. Private property--Willful damage to personal property prohibited. Any person who maliciously, willfully or unlawfully cuts, burns, destroys, injures, defaces or in any other manner injures any goods, wares, merchandise or other property, without the consent of the owner, shall be guilty of a misdemeanor. (Code 1982, § 9.66.040) Sec. 24.04.050. Same--Willful damage to real property or fixtures prohibited. Any person who willfully, unlawfully or maliciously cuts, breaks, injures, tears down, defaces or in any other manner injures any house, barn, building or other enclosure; or who cuts, tears down, breaks or defaces any window or door of any building or house; or who takes off, severs, breaks in or injures, in any manner, any gate, fence or other enclosure, or any part thereof; or pulls down, interferes with or injures any fence, post or part thereof; or injures or destroys any fruit, shade or ornamental tree, shrub or flowers, shall be guilty of a misdemeanor. (Code 1982, § 9.66.050) Sec. 24.04.060. Public property--Animals prohibited on streets, parking strips, public grounds. No person shall walk upon or across, or drive upon or across, nor shall any person while driving202 a herd of horses or cattle or other animals upon or through any of the streets or avenues of the city, allow such animals to travel upon or across any parking strips on any of the streets and avenues of the city, or upon or across any of the grounds at or surrounding any public building, school or ecclesiastical building, or ground acquired or dedicated for any of these purposes, within the city. (Code 1982, § 9.66.060) Sec. 24.04.070. Same--Damage to shrubs, trees, grass or flowers prohibited. It is unlawful for any person or persons to in any way injure or destroy grass, trees, shrubs, or flowers growing upon any parking strips, public, school or ecclesiastical grounds, or anything placed thereon of a useful or ornamental character, within the city. (Code 1982, § 9.66.070) Sec. 24.04.080. Park property--Damaging fences prohibited. It is unlawful for any person, corporation or association to injure, cut, destroy or do any act which will tend to injure or destroy any fence surrounding any public park within the city. (Code 1982, § 9.66.080) Sec. 24.04.090. Park property--Use of gates required. No person shall go through or under, or climb over any fence surrounding any public park of the city, or enter or leave any fenced park except through the gateways provided for such purpose. (Code 1982, § 9.66.090) Sec. 24.04.100. Park property--Damaging vegetation and other property prohibited. No person shall injure or destroy any plot seeded to grass, flowers, foliage or other vegetation, or cut, mutilate, injure, damage or destroy any growing grass, flowers, shrubs, foliage or trees in any public park of the city, nor shall any person destroy, damage, injure, deface or mutilate any tables, benches, stands, flagpoles, houses or buildings, or any other property that may be used in connection with, or which may be contained in any public park of the city. 202 Still necessary? Keep for now. PROOFS Page 325 of 977 (Code 1982, § 9.66.100) Sec. 24.04.110. Fairgrounds--Entrance only through gateways. No person shall climb over or go through or under any fence surrounding any fairgrounds or roundup grounds in the city, or enter said grounds by any other means than the entrances provided therefor, without the permission of the owners of such property. (Code 1982, § 9.66.120) Sec. 24.04.120. Fairgrounds--Damage to fences or other property prohibited. No person shall cut, mutilate, deface or destroy any fairground fence or roundup ground fence in the city, or any building, seats, benches, stands, apartment, or property therein contained of any kind or character. (Code 1982, § 9.66.130) Sec. 24.04.130. Fairgrounds--Trespassing prohibited. No person shall have the right to trespass upon any roundup grounds for fairgrounds in the city without first obtaining lawful permission for such purpose. (Code 1982, § 9.66.140) Sec. 24.04.140. Offensive conduct; where prohibited. No person shall act in a loud, boisterous or rude manner, or so engage in conduct himself so as to be offensive to those using or being upon or within any of the public parks, or grounds of the city, or within the fairgrounds or roundup grounds in the city. (Code 1982, § 9.66.150) 9.66.160. Violation--penalty203. Any person who violates any of the provisions of sections 9.66.040 through 9.66.150 of this chapter shall be guilty of a misdemeanor. (Code 1982, § 9.66.160) Sec. 24.04.150. Operating traction engines on paved streets prohibited204. It is unlawful and a violation of this section for any person who is the owner of or in charge of any traction engine to run such engine over, upon or across, or permit such engine to stand upon any paved street within the city limits. Every person violating the provisions of this section shall be guilty of a misdemeanor. (Code 1982, § 9.70.010) ARTICLE 5. OFFENSES AGAINST PUBLIC PEACE 9.28.010. Disorderly house defined--maintaining prohibited205. No person shall conduct, maintain or keep, any disorderly house. For the purposes of this section, a "disorderly house" means any house, room, tent or other structure or place of abode in which people live or abide or to which they resort, to the disturbance and/or annoyance of offense of the neighborhood or passersby; or for purposes which are injurious to the public peace, 203 This section is covered by the general penalty. Delete. 204 Ord. No. 1616 repealed this section. Was that your intent? No. 205 Deleted at request of city staff. PROOFS Page 326 of 977 quietness, safety, health, morals and convenience; or in which there is illegal sale of beer, wine, whiskey or any intoxicating liquor; or in which gambling is carried on; or in which prostitution is practiced; or which is habitually used for purposes of assignation and/or prostitution, or is the resort of criminals, vagrants or other idle, dissolute or immoral persons; or to which persons resort for the purpose of concocting or planning crimes or misdemeanors, or other offenses against the public peace, health, safety, morals and good order. (Code 1982, § 9.28.010) 9.38.010. Using obscene and vulgar language in public place prohibited206. No person shall curse or swear, or utter any obscene, vulgar or indecent language on any street or in any public place, or which is audible on any street or public place. (Code 1982, § 9.38.010) 9.50.010. Disturbing meetings prohibited207. No person shall at any time wantonly disturb any lawful meeting or assembly by noise, rude, offensive or improper behavior or language of any kind, or otherwise, or at all. (Code 1982, § 9.50.010) State law reference—Disorderly conduct, MCA 45-8-101. 9.52.010. Acts constituting disturbances prohibited208. No person shall unnecessarily disturb the peace or quiet of any street, neighborhood, family or person by loud or unusual noises, or make false alarms, or threaten, quarrel, scold, or provoke or commit an assault or threaten to commit an assault, or commit an assault and battery, or harbor or keep any habitually barking dog, or disturb the rest, sleep, peace and quietness of any person and/or neighborhood by maintaining and keeping noisy poultry, animal or animals, nor by any other means or manner whatsoever unnecessarily disturb the peace and quiet of any person or neighborhood. (Code 1982, § 9.52.010) State law reference—Disorderly conduct, MCA 45-8-101. Sec. 24.05.010. Loitering prohibited209. A person commits a violation if the person loiters or prowls in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity. Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself or herself,210 or manifestly endeavors to conceal himself or herself211 or any object. Unless flight by the actor or other circumstance makes it impracticable, a peace officer shall, prior to any arrest for an offense under this section, afford 206 I question the constitutionality of this section. Delete. 207 Deleted at request of city staff. 208 Animal noises are covered in the animal title and in the noise ordinance. Delete. 209 Amend to reflect the ALI’s Model Penal Code. 210 Unable to reword this language, so we have retained "himself or herself" in order to make it gender neutral. OK as edited. 211 Unable to reword this language, so we have retained "himself or herself" in order to make it gender neutral. OK as edited. PROOFS Page 327 of 977 the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting the actor to identify himself or herself212 and explain the actor's presence and conduct. No person shall be convicted of an offense under this section if the police officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the police officer at the time, would have dispelled the alarm. A violation of this section is a misdemeanor with the penalties set forth in section 1.01.210. No person shall loiter or lounge around or upon any street, sidewalk or public place so as to impede or obstruct the free passage of pedestrians, or so as to embarrass or annoy pedestrians, and all such loiterers and loungers shall promptly move on and refrain from such loitering and/or lounging upon order of any police officer or other person in authority. (Code 1982, § 9.54.010) State law reference—Disorderly conduct, MCA 45-8-101. 9.58.010. Persons constituting vagrants described--acts deemed misdemeanors213. Every person without any visible means of support, who has the physical ability to work, and who does not seek employment or labor, or labor when employment is offered to him; every healthy beggar who solicits alms at a business; every person who roams about from place to place without any lawful business; every idler and dissolute person or associate of known thieves, who wanders about the streets at late or unusual hours of the night, or who lodges in any barn, shed, outhouse, vessel or other place other than such as is kept for lodging purposes, without the permission of the owner or person entitled to the possession thereof; every lewd and dissolute person who lives in and about houses of ill fame, or who lives with or upon the earnings of a woman of bad repute; every common prostitute and common drunkard, shall be deemed a "vagrant," and shall be guilty of a misdemeanor. (Code 1982, § 9.58.010) Sec. 24.05.020. Special security service charges at loud or unruly gatherings214. A. Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning: 1. "Responsible person" shall mean a person with a right of possession in the property on which a loud or unruly gathering is conducted, including, but not limited to, an owner or tenant of the property if the gathering is on private property, or a permittee if the gathering is a permitted gathering on public property, or any person accepting responsibility for such a gathering. The term "responsible person" shall additionally include the landlord of another responsible person and the parents and/or legal guardians of responsible persons under the age of 21 years. To incur liability for special security service charges imposed by this section, the responsible person need not be present at the loud or unruly gathering resulting in the emergency response giving rise to the imposition of special security service charges. This section therefore imposes vicarious as well as direct liability upon responsible persons. 212 Unable to reword this language, so we have retained "himself or herself" in order to make it gender neutral. OK as edited. 213 I question the constitutionality of this section. Delete. 214 This chapter is more related to finances. Keep here. PROOFS Page 328 of 977 2. "Special security services" shall mean the provision of any police, fire or other emergency response service to a loud or unruly gathering within 12 months of a first response as provided in this section. 3. "Loud or unruly gathering" shall mean a gathering of two or more persons on private property or a permitted gathering of two or more persons on public property whose loud or unruly conduct constitutes a threat to public health, safety, quiet enjoyment of residential property or general welfare, including violations of chapter 16, article 2. This term excludes incidents of domestic violence. A loud or unruly gathering shall constitute a public nuisance. B. Response to loud or unruly gatherings. When a police officer responds to a first loud or unruly gathering at premises in the city with a given address, the officer shall inform any responsible person at the scene that: 1. The officer has determined that a loud or unruly gathering exists; and 2. Responsible persons will be charged for the cost of any special security services required for subsequent responses to the scene within the next 12 months. Only one warning will be given pursuant to this subsection before the city assesses special security service costs pursuant to subsection C of this section. If a responsible person cannot be identified at the scene, the police department may issue a warning to one of the other responsible persons identified in subsection A of this section or subsequently return to the scene and issue the warning to a then-present responsible person. Warnings given to responsible persons who do not reside at the premises in question shall be delivered by certified mail. C. Cost recovery for special security services. When the police department or fire department or other city emergency responder responds to a loud or unruly gathering at premises with a given address in the city within 12 months of a warning given to a responsible person for those premises pursuant to subsection B of this section, or while any such warning remains in effect pursuant to subsection E of this section, all responsible persons shall be jointly and severally liable for the city's costs of providing special security service for that response and all subsequent responses during that warning period. D. Billing and collection. Charges for special security service shall include a reasonable charge for the emergency responder's time and actual costs of any equipment used or damaged in connection with the response, together with an additional 33 percent of the special security charge for administrative overhead. These charges shall be computed and a bill submitted to the responsible person. The chief of police shall promulgate notice and billing procedures for this purpose. The bill shall be a debt owed to the city and failure to pay that bill within 30 days is a violation of this Code. If the city is obliged to initiate litigation or other proceedings authorized by this Code to recover this debt, the responsible person shall be liable for: 1. Costs of suit; 2. Attorney's fees; and 3. Costs of collection. E. Violations/fines. 1. It shall be an infraction for a responsible person to conduct or allow a loud or unruly gathering on premises owned by the responsible person or on premises rented by or to the responsible person. A third or subsequent violation within a 12-month period shall constitute a misdemeanor. 2. Fines. a. A first violation of this section shall be punishable by a $100.00 fine. PROOFS Page 329 of 977 b. A second violation of this section at a given address in the city within a given 12-month period shall be punishable by a fine of $250.00. c. A third or subsequent violation of this section at a given address in the city within a given 12-month period shall be punishable by a fine of $500.00. 3. The fines prescribed in subsection E.2 of this section are in addition to any special security service charges that may be assessed pursuant to this section. 4. The second, third or subsequent violation fines prescribed in subsections E.2.b and c of this section are payable whether or not the responsible person at the time of the current loud or unruly gathering is the same person who was the responsible person for any prior loud or unruly gathering at those premises. 5. The fine schedule prescribed in subsection E.2 of this section is a "rolling schedule" meaning that in calculating the fine payable the police department or city attorney shall count backward starting from the date of the most recent loud or unruly gathering to determine how many prior loud or unruly gatherings have taken place at the premises in question during the statutory 12-month period. A warning given pursuant to subsection B of this section shall remain in effect for the premises at a given address until a full 12-month period has elapsed during which there have been no loud or unruly gatherings at those premises. F. Service of alcoholic beverages to minors. The city commission hereby finds that the service of alcohol to minors at loud and unruly gatherings and the consumption of alcohol by minors at loud or unruly gatherings has in the past and continues to pose a threat to the health and safety of all persons who reside in the city and also causes significant disruption of city residents' quiet enjoyment of their households, especially in the city's residential neighborhoods. In addition, such conduct on behalf of persons who serve alcohol to minors and minors who consume alcohol at loud or unruly gatherings results in the expenditure of a disproportionate percentage of the city's police, fire and public safety resources which are underwritten primarily by general municipal taxes paid to the city by its taxpayers and residents. It is therefore the policy of the city commission that in responding to loud or unruly gatherings, the city police department shall strictly enforce any and all applicable state laws pertaining to the service of alcohol to minors, and the consumption of alcohol by minors, and with respect to minors in possession of alcohol, the police department shall establish a "no tolerance" protocol by which the police department contacts, or causes the minor's school to contact, the minor's parents or legal guardians whenever the minor is found to be in possession of alcohol or narcotics or found to be intoxicated at a loud or unruly gathering. Where the minor's school has an internal student disciplinary office, any such incident shall likewise be reported to that office. (Ord. No. 1656, § 1(9.72.010--9.72.060), 12-12-2005) ARTICLE 6. OFFENSES AGAINST PUBLIC MORALS 9.34.010. Houses of prostitution or assignation prohibited215. No person shall keep, maintain, operate, manage, occupy and/or be an inmate or frequenter of or visitor at, or invite or solicit another to frequent or visit, any house of prostitution, bawdy house, house of assignation or other immoral use, in the city and three miles beyond the corporate limits of the city. within the meaning of this section, the word "house" includes any room, cabin, tent, hotel, lodginghouse or other structure and/or enclosure where such prohibited practice and/or practices is or are permitted and/or carried on. 215 Keeping such a house is a felony under state law. Delete. PROOFS Page 330 of 977 (Code 1982, § 9.34.010) State law reference—Prostitution, MCA 45-5-601 et seq. 9.36.010. Indecent exposure or exhibition prohibited216. No person shall make any indecent or improper public exposure of his or her person or be guilty of any indecent or lewd act or behavior in public or in any place where there are other persons present to be offended and/or annoyed thereby, or sing or recite any lewd or obscene song, or ballad, verses or other words or writing, or printed matter, in any public place where there are other persons present to be offended and/or annoyed thereby; and no person shall at any time or place in public, and/or when other persons may be offended or annoyed thereby, make any indecent or improper exhibition of any animal. (Code 1982, § 9.36.010) State law reference—Indecent exposure, MCA 45-5-504. 9.42.010. Using or selling narcotic drugs prohibited217. No person shall indulge in the use of opium by smoking it, or resort to or maintain or keep any place where such smoking is permitted or indulged, nor indulge in the habitual use of morphine, heroin, cocaine or other harmful narcotic and/or habit-forming drug or drugs; nor shall any person not duly licensed to do so sell or offer for sale or keep or possess for sale or gift, in any public place, or make any gift of, any such drug or drugs. Every place where opium is smoked or used, or kept, or sold, or offered for sale or gift, or to which resort is had for such smoking, use, purchase, sale or gift, or where any habit-forming narcotic drug is used, kept for use, distribution, sale or gift, unless duly licensed, declared to be a nuisance, and a violation of this chapter. (Code 1982, § 9.42.010) State law reference—Dangerous drugs, MCA 45-9-101 et seq. Sec. 24.06.010. Public urination and defecation. No person within the jurisdictional limits of the city shall publicly defecate or urinate on streets, sidewalks, alleys, parks, parking lots or other places open to the public including areas open to the public in buildings unless a sanitary facility capable of and commonly used for disposal of human urine or excrement is used. (Code 1982, § 9.46.010; Ord. No. 1233, 1987; Ord. No. 1372, § 2, 1993) Sec. 24.06.020. Lotteries or gambling in streets or public places prohibited218. The conducting or carrying on of any lottery, raffle, game of chance, or any gambling game of any nature or description, in or upon any street, avenue, alley or public place of the city, is prohibited. (Code 1982, § 12.12.090) 216 Deleted at request of city staff. 217 Most of the activity in this section is a felony under state law. Delete. 218 This is an odd section. Would you prefer a general no gambling section in title 9. Move to the offenses chapter. PROOFS Page 331 of 977 ARTICLE 7. OFFENSES AGAINST PUBLIC SAFETY DIVISION 1. GENERALLY Sec. 24.07.010. Removal of doors from refrigerators and certain other containers required. It is unlawful for any person to leave or permit to remain outside of any dwelling, building or other structure, or within any unoccupied or abandoned building, structure or dwelling under such person's control, in a place accessible to children, any abandoned, unattended or discarded icebox, refrigerator or other container which has a door or lid, snaplock, or other locking device which may not be released from the inside, without first removing such door or lid, snaplock, or other locking device. (Code 1982, § 8.04.010) State law reference—Similar provisions, MCA 45-8-113. 9.56.010. Playing games in the street prohibited219. The playing of baseball, football, basketball or any other game in the streets and alleys within the corporate limits of the city is forbidden. (Code 1982, § 9.56.010) 9.64.010. Maintaining barbed-wire fences prohibited where220. __ Any person or persons, or corporation or corporations, who shall, within the platted limits of the city, when sidewalks have been laid or ordered laid by the city commission, erect, keep or maintain any barbed-wire fencing on or around the outer portion of his, her or their premises, such person or persons, corporation or corporations shall be deemed guilty of maintaining a nuisance. __ The continuance of the same for every day, after being notified by any city officer to abate the same, shall be regarded as a separate offense. (Code 1982, § 9.64.010) Secs. 24.07.020--24.07.140. Reserved. DIVISION 2. WEAPONS* *State law reference—Restriction on local government regulation of firearms, MCA 45-8-351. Sec. 24.07.150. Discharge of airguns prohibited when. No person shall, within the limits of the city, shoot or discharge any toy air pistol or rifle shooting lead shot, or missile of metal, wood or other hard substance. (Code 1982, § 9.90.010) 219 Deleted at request of city staff. 220 Deleted at request of city staff. PROOFS Page 332 of 977 Sec. 24.07.160. Concealed weapons defined; carrying prohibited without permit221. No person shall carry or bear concealed upon his or her person a dirk, dagger, pistol, revolver, sling-shot, sword, cane, billy, knuckles made of any metal or hard substance, knife having a blade four inches long or longer, razor (not including a safety razor), or other dangerous or deadly weapon, without written permission from the proper authority with legal power to grant such permit. The term "concealed weapons," within the meaning of this section, shall be any weapon mentioned herein which shall be wholly or partially covered by the clothing or wearing apparel of the person carrying or bearing such weapon. (Code 1982, § 9.92.010) State law reference—Similar provisions, MCA 45-8-316; permit to carry concealed weapon, MCA 45-8-321 et seq. Sec. 24.07.170. Weapons in public buildings and property. A. Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Destructive device" means: a. A projectile containing an explosive or incendiary material or any other similar chemical substance including, but not limited to, that which is commonly known as tracer or incendiary ammunition, except tracer ammunition manufactured for use in shotguns; b. A bomb, grenade, explosive missile or similar device or a launching device therefor; c. A weapon of a caliber greater than .60 caliber which fires fixed ammunition or any ammunition therefor, other than a shotgun or shotgun ammunition; d. A rocket, rocket-propelled projectile or similar device of a diameter greater than .60 inch or a launching device therefor and a rocket, rocket-propelled 221 Note preemption which affects this section as to concealed handguns. No comment. 45-8-351. Restriction on local government regulation of firearms. (1) Except as provided in subsection (2), no county, city, town, consolidated local government, or other local government unit may prohibit, register, tax, license, or regulate the purchase, sale or other transfer (including delay in purchase, sale, or other transfer), ownership, possession, transportation, use, or unconcealed carrying of any weapon, including a rifle, shotgun, handgun, or concealed handgun. (2) (a) For public safety purposes, a city or town may regulate the discharge of rifles, shotguns, and handguns. A county, city, town, consolidated local government, or other local government unit has power to prevent and suppress the carrying of concealed or unconcealed weapons to a public assembly, publicly owned building, park under its jurisdiction, or school, and the possession of firearms by convicted felons, adjudicated mental incompetents, illegal aliens, and minors. (b) Nothing contained herein shall allow any government to prohibit the legitimate display of firearms at shows or other public occasions by collectors and others, nor shall anything contained herein prohibit the legitimate transportation of firearms through any jurisdiction, whether in airports or otherwise. History: En. Sec. 1, Ch. 589, L. 1985; amd. Sec. 11, Ch. 759, L. 1991. PROOFS Page 333 of 977 projectile or similar device containing an explosive or incendiary material or any other similar chemical substance other than the propellant for the device, except devices designed primarily for emergency or distress signaling purposes; e. A breakable container which contains a flammable liquid with a flashpoint of 150 degrees Fahrenheit or less and which has a wick or similar device capable of being ignited, other than a device which is commercially manufactured primarily for the purpose of illumination. 2. "Firearm" means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of any explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device. 3. "Park" means a park, playground, recreation complex or any other area in the city, developed or undeveloped, owned or used by the city, and devoted to active or passive recreation. 4. "Weapon" means dirk; dagger; pistol; revolver; rifle; shotgun; firearm; slingshot; sword cane; billy; knuckles made of any metal or hard surface; razor, not including a safety razor; or other deadly weapon or destructive device. B. Prohibition of weapons in city-owned buildings and property. The carrying or possession of a weapon by any person in or on the city-owned buildings and property described in subsection D of this section or in any park is prohibited. C. Exceptions. The provisions of subsection B of this section do not apply to: 1. Any peace officer of the state; 2. Any officer of the United States government authorized to carry a concealed weapon; 3. Any member of the armed services or reserve forces of the United States or National Guard, while in the performance of their official duties; 4. A person summoned to the aid of any of the persons named in subsections C.1 through 3 of this section; 5. A probation and parole officer authorized to carry a firearm under MCA 46-23-1002; 6. An agent of the state department of justice or a criminal investigator in a county attorney's office; 7. Sponsored events, gun shows or displays authorized by the city; 8. A person who is participating in a public event or program, including but not limited to a gun show or gun safety program which is authorized by the city to occur on city property; or 9. A person authorized by the chief of police to carry or possess an unconcealed weapon on city property. D. Areas subject to prohibition. The city-owned property to which the prohibition in subsection B of this section applies includes, but is not limited to: 1. City Hall Complex, 411 East Main Street and 34 121 North Rouse Avenue, Bozeman, Montana; 2. Alfred Stiff Professional Building, 20 East Olive Street; PROOFS Page 334 of 977 2. Carnegie Building, 35 North Bozeman Avenue, Bozeman, Montana; 3. Bozeman Public Library, 626 East Main Street 220 East Lamme Street, Bozeman, Montana; 4. City Shop Complex, 814 North Bozeman Avenue, Bozeman, Montana, including all lawns, parking areas and sidewalks leading to the site, as well as all areas inside the perimeter fence; 5. Swim Center, 1211 West Main Street, Bozeman, Montana; 6. Cemetery Building, 340 Golf Way, Bozeman, Montana, including all lawns, parking areas and sidewalks leading to the building, and cemetery grounds; 7. Landfill Building, 2143 Story Mill Road, Bozeman, Montana; 8. Lower Yards, 1900 1812 North Rouse Avenue, Bozeman, Montana, including all areas inside the perimeter fence; 9. Water Treatment Plant, 7220 Sourdough Canyon Road, Bozeman, Montana; 10. Wastewater Treatment Plant, 2245 Springhill Road, Bozeman, Montana, including, but not limited to, all areas inside the perimeter fence; 11. All parks; and 12. All city fire stations. E. Signing. Suitable signs shall be posted at each entrance to the facilities listed in subsection D.1 through 10, stating the possession of weapons on the premises is prohibited except for law enforcement personnel. (Code 1982, §§ 9.93.010--9.93.050; Ord. No. 1420, § 1, 1996) 9.93.060. Violation--penalty222. Violation of this chapter is a misdemeanor and is punishable by a fine not to exceed five hundred dollars and/or imprisonment of up to six months in the county jail. (Code 1982, § 9.93.060; Ord. No. 1420, § 1, 1996) Sec. 24.07.180. Discharge of firearms prohibited; exceptions. No person shall, except in necessary defense of himself/herself223 or others, or unless duly authorized by law, discharge any firearm. This shall not apply to the discharge of firearms on any legal rifle range of the National Guard or of any branch thereof, nor to the discharge of firearms in any duly licensed shooting gallery, nor by any duly authorized person. (Code 1982, § 9.94.010) Sec. 24.07.190. Bows and crossbows and other devices. __ Use restrictions. A. No person shall throw, shoot, fire, or otherwise discharge any arrow, bolt or other projectile through the use of a bow, crossbow or other device within the city limits, except when done in the lawful defense of the person, property or family, or when done either at an organized and established public or private archery shooting range or gallery, or when done at an archery 222 This section is covered by the general penalty. Delete. 223 Unable to reword this language, so we have added "/herself" in order to make it gender neutral. OK as edited. PROOFS Page 335 of 977 shooting target area on private property or premises under circumstances and in such a manner where any throwing, shooting, firing or other discharge of an arrow, bolt or other projectile can be and is being performed in a manner so as not to endanger person, property, animal or fowl, and also performed in such a manner so as to prevent any arrow, bolt or other projectile from traversing any grounds or air space outside the established boundaries or limits of any organized and established public or private archery shooting range or gallery, or archery shooting target area on private property or premises. B. No person shall throw, shoot, fire or otherwise discharge any arrow, bolt, or other projectile through the use of a bow, crossbow or other device in parks or other public property. (Code 1982, § 9.98.010; Ord. No. 1242, § 1, 1987; Ord. No. 1256, § 1, 1988) ARTICLE 8. OFFENSES CONCERNING UNDERAGE PERSONS DIVISION 1. GENERALLY Secs. 24.08.010--24.08.140. Reserved. DIVISION 2. CURFEW Sec. 24.08.150. Loitering by persons under 16 years of age prohibited--exceptions224. No minor under the age of 16 years shall loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places, 224 Current case law requires the following exceptions: Add. The following activities shall be exempt from the curfew requirements of this chapter where the minor is: (1) Accompanied by his parent, guardian or any other person 21 years of age or older who is authorized by a parent as the caretaker for the minor; (2) On an errand, without any detour or stop, at the direction of his parent, guardian or caretaker; (3) In a vehicle involved in interstate travel; (4) Engaged in a certain employment activity, or going to or from employment, without any detour or stop; (5) Involved in an emergency; (6) On the sidewalk that abuts the minor's or the nextdoor neighbor's residence, if the neighbor has not complained to the police; (7) In attendance at an official school, religious or other recreational activity sponsored by the city, a civic organization or another similar entity that takes responsibility for the minor, or going to or from such an activity, without any detour or stop, and supervised by adults; (8) Exercising First Amendment rights, including free exercise of religion, freedom of speech and the right of assembly. PROOFS Page 336 of 977 public buildings, places of amusement and of entertainment, vacant lots or other unsupervised places or premises, between the hours of 10:00 p.m. of any day and 4:00 a.m. of the following day, official city time, within the corporate limits of the city; provided, however, that the provisions of this section shall not apply to any such minor who is involved in any of the activities set out in section 24.08.160 accompanied by his or her parent, guardian or other adult person having the care, custody and control of such minor, or when such minor is upon an emergency errand or other legitimate business at the direction, instruction or command of his or her parent, guardian or other adult person having the care, custody and control of such minor, but such activitydirection, instruction or command shall be a matter of defense, and the burden of proof thereof to the satisfaction of the court shall be upon the defendant in any prosecution for violation of this division. Each and every violation of the provisions of this section shall constitute a separate offense and shall be punishable as such. (Code 1982, § 9.80.010) Sec. 24.08.160. Exceptions. A. The following activities shall be exempt from the curfew requirements of this division where the minor is: 1. Accompanied by a parent, guardian or any other person 21 years of age or older who is authorized by a parent as the caretaker for the minor; 2. On an errand, without any detour or stop, at the direction of a parent, guardian or caretaker; 3. In a vehicle involved in interstate travel; 4. Engaged in a certain employment activity, or going to or from employment, without any detour or stop; 5. Involved in an emergency; 6. On the sidewalk that abuts the minor's or the next-door neighbor's residence, if the neighbor has not complained to the police; 7. In attendance at an official school, religious or other recreational activity sponsored by the city, a civic organization or another similar entity that takes responsibility for the minor, or going to or from such an activity, without any detour or stop, and supervised by adults; or 8. Exercising First Amendment rights, including free exercise of religion, freedom of speech and the right of assembly. (Code 1982, § 9.80.010) Sec. 24.08.170. Responsibility of parents or guardians. It shall be deemed a violation of this division for any parent, guardian or other adult person having the care, custody or control of a minor under the age of 16 years to allow or permit such minor, either expressly or by neglect, to duly exercise such care, custody or control, to loiter, idle, wander, stroll or play in or upon the public streets, highways, roads, alleys, parks, playgrounds or other public grounds, public places and public buildings, places of amusement and entertainment, vacant lots or other unsupervised places, between the hours of 10:00 p.m. of any day and 4:00 a.m. of the following day, official city time, except as provided in section 24.08.160, and the burden of proving such exception shall be on the defendant; provided that in any prosecution under this section it shall not constitute a defense thereto that the parent, guardian or other adult person having the care, custody, or control of any such minor under the age of 16 years, did not have PROOFS Page 337 of 977 knowledge that such minor did loiter, idle, wander, stroll or play in or upon any of the places specified in this section at any time between the hours herein specified. (Code 1982, § 9.80.020) Sec. 24.08.180. Violation; penalty225. Any minor violating the provisions of section 24.08.150 shall be dealt with in accordance with and pursuant to the provisions of MCA 41-5-101 et seq., and the Interstate Compact on Juveniles at MCA 41-6-101 et seq. Any parent, guardian or other adult person having the care, custody or control of a minor violating any of the provisions of section 24.08.150 shall be deemed guilty of a violation of the provisions of section 24.08.170, and upon conviction thereof in the police court, shall be fined in a sum not less than $5.00 nor more than $50.00, or by imprisonment in the city or county jail for a period not exceeding 25 days, or by both such fine and imprisonment for each offense of which such parent, guardian or other adult person shall be so convicted. (Code 1982, § 9.80.030) 225 Are the fines high enough now? Keep. PROOFS Page 338 of 977 PROOFS Page 339 of 977 Chapter 25 RESERVED PROOFS Page 340 of 977 Chapter 26 PARKS AND RECREATION* *State law reference—Culture, social services and recreation, MCA 7-16-101 et seq.; parks, MCA 23-1-101 et seq.; recreation, MCA 23-2-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. PARK REGULATIONS Sec. 26.02.010. Intent. The provisions of this article shall apply to all park lands in the city, whether dedicated, deed, or otherwise acquired for park purposes, and to all facilities designated for city recreational purposes. Each application for use of a park or recreational facility shall be reviewed on a case-by- case basis. This article seeks to impose reasonable time, place and manner controls in an appropriate and limited manner upon events and facility uses for which permits are required. This article shall be administered in a manner that seeks to allow for expression, assembly, and the exercise of religious rights in accordance with applicable constitutional and statutory limits and controls. (Code 1982, § 12.26.010; Ord. No. 1278, § 1, 1989; Ord. No. 1801, § 2(12.26.010), 4-25-2011) Sec. 26.02.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. 1. “Aggrieved person” means a person who can demonstrate a specific, personal and legal interest in the final decision of an application for a permit issued under this article, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal. 2. “Animal” shall have the meaning stated in section 8.02.010. 3. "Director" means the director of parks and recreation226. 4. “Domestic animals” means those animals which live in or about the habitations of people or which contribute to the support of people and include but are not limited to the following: horses, cows, sheep, ducks, geese, chickens, dogs, cats, goats, and other tamed animals. 5. “Fireworks” shall have the meaning stated in section 18.05.010. 6. “Park” means a park, playground, recreation complex, or any other area in the city, developed or undeveloped, owned or used by the city, and devoted to active or passive recreation. 7. “Public assembly” means any meeting, march, demonstration, picket line, rally, or gathering of more than 75 persons for a common purpose as a result of prior 226 Note change requested by city staff. PROOFS Page 341 of 977 planning that affects or may reasonably be expected to affect the normal flow or regulation of pedestrian or vehicular traffic within a park or recreational facility, or occupies any park or recreational facility in a place open to the general public. 8. “Recreational facility” means a building, structure, place or other location within a park or under the management of the city. 9. “User group” means any group or organization that is given use of a park for an extended period of time through a park user group agreement. 10. “Vehicle” means any device in, upon or by which any person or property may be transported or drawn including snowmobiles. The term "vehicle" shall include any trailer in tow of any size, kind or description. Exception is made for bicycles, baby strollers and carriages, wheelchairs, and vehicles in the service of the city parks and recreation division. (Code 1982, § 12.26.020; Ord. No. 1278, § 2, 1989; Ord. No. 1801, § 3(12.26.020), 4-25-2011) Sec. 26.02.030. Park prohibitions. A. It is unlawful for any person in a park or in or adjacent to a recreational facility to: 1. Mark, deface, disfigure, injure, tamper with or displace or remove any buildings, bridges, tables, benches, fireplaces, grills, railings, paving or paving material, water lines, equipment, signs, drinking fountains, swimming or wading pools or other park or recreational facility property, improvements or appurtenances whatsoever, real or personal; 2. Fail to cooperate in maintaining restrooms and washrooms in a neat and sanitary condition. No person over the age of six years shall use the restrooms and washrooms designated for the opposite sex; 3. Dump dirt, grass and tree clippings or dig, remove, plant or deposit any soil, rock, sand, stones, trees, shrubs or plants or other wood or materials, or make any excavation by tool, equipment or other means or agency except as authorized by the director; 4. Construct or erect any building or structure of whatever kind, whether permanent or temporary, or run or string any public utility into, upon or across park or recreational facility property, except on special written permit issued hereunder; 5. Damage, cut, carve, mark, transplant or remove any plant, or injure the bark, dig in or otherwise disturb grass areas, or in any other way injure the natural beauty or usefulness of any area; 6. Climb any tree or walk, climb, stand or sit upon buildings, monuments, statues, vases, planters, fountains, railings, fences or upon any other structure not designated or customarily used for such purpose; 7. Attach any rope, cable, structure, device or other contrivance to any tree, fence, railing, bridge, bench, building or other structure unless otherwise posted. This prohibition does not include locking bicycles to the foregoing mentioned structures as long as no damage is done to the structure and so long as the bicycle does not interfere with the use and enjoyment of the park by others, and so long as the bicycle is not locked to the structure for a period of time not to exceed 24 hours; 8. Litter or fail or refuse to deposit litter in provided garbage receptacles. Where receptacles are not provided, all such rubbish or waste shall be carried away from the park by the person responsible for its presence and properly disposed of PROOFS Page 342 of 977 elsewhere; 9. Break glass objects and then fail to remove broken glass and safely dispose of the broken glass in such fashion so as not to cause injury to persons or property; 10. 227Cause or permit any domestic animal to run loose, or fail to keep such animal under restraint, in any park or other open space area designated by the commission as an area requiring restraint. Further, every owner or person having custody of said dog or other animal shall remove and properly dispose of the animal's solid waste (fecal material)228. This subsection shall not apply to service animals authorized under the Americans with Disabilities Act.; 11. Tie or hitch an animal to any tree or plant; 12. Pasture or pen any animal, domesticated or wild, except as authorized by the director; 13. Hunt, molest, harm, frighten, kill, trap, pursue, chase, tease, shoot or throw missiles at any animal, nor remove from the park or have in his possession any animal, or the eggs or nest, or young of any animal. An exception to the foregoing is made in that snakes known to be poisonous may be killed on sight. An exception is further made to fishing where allowed by the state department of fish, wildlife and parks. This regulation does not apply to officers of state or local government duly acting within the course and scope of their duties; 14. Ride a horse except on designated horse trails; 15. Start a fire except in facilities installed and provided for such purpose, or to fail to completely extinguish a fire upon leaving the park; 16. Camp overnight except in designated camping areas; 17. Display, offer to sell, or sell any article or service without first obtaining a permit from the director pursuant to this article; 18. 229Bring or discharge any firearm, air gun, bow and arrow, slingshot, atlatl, spear, boomerang or any other form of potentially dangerous weapon into a park or recreational facility (see section 24.07.170); 19. Be in a park or recreational facility after being closed, either because of the night closure or closure following public notice or posting; 20. 230Possess or bring fireworks into a park or adjacent to a recreational facility, or cause the fireworks to be ignited or exploded in a park or adjacent to a recreational facility (see chapter 18, article 5); 21. Operate a skateboard, roller skate, inline skate, ride a bike or similar recreational device with wheels on any tennis court or in any drained swimming pool; 22. Operate a skateboard, rollerskate, inline skate, or ride a bike or similar recreational device with wheels on or against any city-owned table, bench, structure, tennis court, bike rack, parking stop, retaining wall, fountain, statue, railing, stage, or other improvement which may suffer damage by such use; 227 Dogs in parks are also regulated in title 6. Yes, but keep here also. 228 Make an exception for leader dogs. Note change. 229 Code ch. 9.93 prohibits weapons in parks. Yes. Add reference to that chapter. 230 Fireworks in parks are regulated in Code ch. 8.12. Yes. Add reference to that chapter. PROOFS Page 343 of 977 23. Operate a skateboard, rollerskate, inline skate, or ride a bike or similar recreational device with wheels on or in any pavilion, except as authorized by section 26.02.120; 24. Practice golf with real golf balls in any park; 25. Drive, operate or park any vehicle or trailer on park lands or trails, except as authorized by the director; 26. Within any park, paint trees, bushes, buildings, parking lot surfaces, or sidewalks; 27. Allow an animal, other than service animals, in a recreational facility. B. The director may create additional prohibitions which may be applicable to one or more parks or recreation facilities. (Code 1982, § 12.26.030; Ord. No. 1278, § 3, 1989; Ord. No. 1463, § 5, 1998; Ord. No. 1518, § 1, 2000; Ord. No. 1801, § 4(12.26.030), 4-25-2011) Sec. 26.02.040. Park use/general standards for reserved use of a park or recreational facility. A. The following standards apply to the use, including the reserved use, of all parks and recreational facilities: 1. Reservation priority. Unless reserved according to the park reservation procedure, established in section 26.02.050, the use of the park or portion thereof by the public shall be on a first-come, first-served basis. 2. Scope. Only parks and recreational facilities designated by the director may be reserved for exclusive use. 3. Tents, canopies, inflatable structures. Approval must be granted by the director for the use of, and prior to the assembly of, any tents, canopies, shade structures, inflatable toys, etc., within a park. 4. Public address or sound systems. a. Public address and/or sound systems may be used within parks with the approval of the director. The sound system cannot be used for more than three consecutive hours in any park except as provided in subsection A.4.b of this section. The use of amplified sound shall be limited to the hours between 12:00 noon and 9:00 p.m. b. Bogert Park. Public address and/or sound systems may be used within Bogert Park with the approval of the director. The sound system cannot be used for more than two consecutive hours. The use of a sound amplification system is limited to the hours between 12:00 noon and 9:00 p.m., Monday through Saturday. Amplified sound is prohibited in Bogert Park on Sundays. c. Music may be played inside a structure located in a park or in a recreational facility as long as it cannot be heard outside the structure. All music shall end by 10:00 p.m. 5. Marking the grounds. Approval shall be obtained from the director prior to the use of any turf paint within any park. Only water-based turf paint shall be used on any turf. Only chalk shall be used on impervious surfaces such as sidewalks and asphalt. 6. Park user group agreements. The director may enter into agreements with various park user groups, with the fee for such agreements established by the director. a. Admission fees may be charged for events held in conjunction with a park user group agreement if approved by the director and listed in the agreement. b. Articles, food, beverages or service may be sold for events held in conjunction PROOFS Page 344 of 977 with a park user group agreement, if so noted in the agreement. 7. Parking. Parking spaces at a park or recreational facility are not reserved with a park reservation permit, and all parking is on a first-come, first-served basis. Park reservation permits may be denied if available parking is inadequate for the number of participants expected. 8. Power generators. The director may require a person holding a reservation permit to provide a power generator. The use of a power generator is subject to the restrictions in subsection A.4 of this section. 9. Portable toilet facilities. The director may require a person holding a reservation permit to provide portable toilet facilities. The director shall determine how many such facilities are needed and the timeframe in which they must be present. If the facilities are not removed within the timeframe established, the city may remove them and all costs associated with removal shall be charged to the applicant. 10. Admission fees. An admission fee to a permitted event cannot be charged without written approval from the director. 11. Litter removal. A person holding a reservation permit shall pick up and properly dispose of all types of litter within the buildings and grounds. 12. Additional rules. The director may establish additional rules governing the use of a park or recreational facility by the public or a person holding a reserved use permit. (Code 1982, § 12.26.040; Ord. No. 1278, § 4, 1989; Ord. No. 1801, § 5(12.26.040), 4-25-2011) Sec. 26.02.050. Permits Park and recreational facility reservation permits; application; alcohol waiver. A. A person seeking a park or recreational facility reservation permit shall file an application with the director on forms provided by the city. Applicants must be at least 18 years of age. If an open container waiver is requested the applicant must be at least 21 years of age. B. An application for a reservation permit shall be filed with the director no less than 15 working days and not more than 180 days before the event is proposed to commence. The director may waive the minimum filing period and accept an application filed within a shorter period if, after due consideration of the date, time, place, and nature of the event, the anticipated number of participants, and the city services required in connection with the event, the director determines the granting of a waiver will not unduly burden city services or interfere with any other previously approved or applied for event. C. The application shall be made on a form provided by the city and shall include all information the director deems relevant to the requested event. D. If 75 or more participants are expected for the event, a public assembly permit shall also be required and may be issued by the director pursuant to the standards and criteria in section 34.08.140. E. Waiver of open alcoholic beverage container. Per section 4.04.030, public drinking or display or exhibition of open alcoholic beverages (open containers) is prohibited in public parks and recreational facilities. A waiver of this requirement may be granted per the provisions of section 4.04.050. A separate application and fee are required. (Code 1982, § 12.26.050; Ord. No. 1278, § 5, 1989; Ord. No. 1801, § 6(12.26.050), 4-25-2011) Sec. 26.02.060. Hours of Operation Standards of issuance of reservation permit. A. The director shall issue a permit, subject to any conditions deemed necessary and reasonable, as provided for herein when, from consideration of the application and such other PROOFS Page 345 of 977 information as may otherwise be obtained, the director finds: 1. The application is complete and sets forth accurately and in sufficient detail the information required for consideration; 2. The conduct of the event will not unduly inconvenience either the public in using adjacent public areas normally open for general public use or the city in the conduct of governmental operations; 3. The possibility of the event causing any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace or safety of reasonable persons of ordinary sensitivity, as further discussed in chapter 16, article 6; 4. The conduct of the event will not require the diversion of so great a number of city police officers to properly police the event as to prevent normal police protection of the city; 5. The conduct of the event is not reasonably likely to cause injury to persons or property; 6. Adequate sanitation and other required health facilities are or will be made available; 7. There is sufficient parking near the site of the event, or other arrangements made for transportation, to accommodate the number of vehicles reasonably expected; 8. Such event is not for the primary purpose of advertising any product, goods, or event that is primarily for private profit, unless a park user agreement is entered into per section 26.02.040.A.6; 9. A reservation or public assembly permit for the same time and general location is already granted or has been received and will be granted; 10. The conduct of a past event for the same purpose or by the same organizer and/or organization has been acceptable.231 B. An event may be limited as to the number of participants in the interest of adequacy of facilities. C. Unless otherwise agreed by the applicant, the director shall act on an application within 15 working days after determining that the application is complete. (Code 1982, § 12.26.060; Ord. No. 1278, § 6, 1989; Ord. No. 1801, § 7(12.26.060), 4-25-2011) Sec. 26.02.070. Traffic Control Sale of articles or services within a park or recreational facility/permits. A. For the purpose of maintaining control of park or recreational facility use, the following standards and procedures are adopted in the public interest for issuing permits to sell articles or services in connection with either a community-oriented event approved by the commission or an event established pursuant to a park user group agreement. 1. A person seeking issuance of a permit to sell articles or services shall file an application with the director with the following information no less than 15 working days and not more than 180 days prior to the date requested: a. Name, age, telephone number, and address of applicant; b. Name and address of sponsor of activity; 231 Please review underlined material added by editor. PROOFS Page 346 of 977 c. Day and hours for which permit is desired; d. The park or portion thereof for which the permit is desired; e. Purpose of the request for permit or nature of activity; f. Name and address of person responsible for cleanup, if different from applicant or sponsor. 2. Standards of issuance of permit to sell articles or services within a park or recreational facility. a. In addition to the standards listed in section 26.02.060, in issuing a permit to sell articles or services the director shall consider whether: (1) The proposed activity or use of the park or recreational facility is appropriate for the named park or facility and will not unreasonably interfere with or detract from the public’s use and enjoyment of the park; (2) The proposed activity or uses that are reasonably anticipated will not include violence, crime, or disorderly conduct; (3) The proposed activity will not entail extraordinary or burdensome expense on the city; (4) The facilities desired have not been reserved for other use on the date and hour requested in the application; and (5) That the sale of articles or services is not primarily for private profit and provides a community benefit. b. Applications meeting these standards will be issued on a first-come, first- served basis. (Code 1982, § 12.26.070; Ord. No. 1278, § 7, 1989; Ord. No. 1801, § 8(12.26.070), 4-25-2011) Sec. 26.02.100 080. City commission; park development Requirement for liability insurance, bonding or other security/clean up deposit. A. To avoid interference with protected rights of speech and assembly, any requirement imposed for surety for performance (including but not limited to insurance, bonding, or monetary deposits) shall be based upon needs directly associated with the event and not on the basis of possible disruption of the event by protestors or other persons who might be opposed to the speech or assembly. Such restriction, however, shall not apply where the director determines that the event is being scheduled so as to unduly and unnecessarily create a potential for counter-protest or disruption or interference with public health, safety, welfare, or order. B. A permittee under this article, including a person or entity entering into a park user group agreement, shall obtain commercial general liability insurance covering the permittee and/or the permittee’s organization for all activities related to the event or permit, including but not limited to setup, the event itself, and all cleanup activities. The insurance policy shall contain no exceptions or exclusions for activities conducted under or related to the permitted activities. The permittee shall name the city, its officers, and employees as additional insureds on a primary non-contributory basis. The additional insured coverage shall be in a form acceptable to the city. To the extent reasonably possible, such additional insured coverage shall be in the minimum amounts of $750,000.00 per claimant and $1,500,000.00 per occurrence. C. The insurance requirements of this section are in addition to and separate from any other obligations contained in this section or article or in a permit issued under this article. PROOFS Page 347 of 977 D. Applicants for a permit under this article shall agree in writing to defend, hold the city and its employees and officials harmless and indemnify the city, its employees and officials, for any and all claims, lawsuits or liability, including attorneys' fees and costs allegedly arising out of loss, damage or injury to a person or a person's property occurring during the course of, in preparation of, or in any way pertaining to the permitted event which is caused by the conduct of employees or agents, including guests, of the permit holder. E. The director may grant a waiver to the requirements of this section for city- sponsored events or when the director determines the event does not present a substantial or significant public liability or property damage exposure for the city, its officers, agents and employees. The director shall consider the applicant’s proven financial inability to obtain the required coverage. When the director considers requests for waivers, the director shall base the decision on the factual circumstances presented by the applicant and decide the specific request on its merits. (Code 1982, § 12.26.080; Ord. No. 1278, § 8, 1989; Ord. No. 1801, § 11(12.26.080), 4-25-2011) Sec. 26.02.090. Revocation of permit. A. The director, city manager, the chief of police, or the fire chief shall each have independent authority to instantly revoke or suspend any permit issued under this article: 1. Upon a violation of the conditions imposed in the permit; 2. Upon violation of this article or any other provision of law; 3. When a public emergency arises where the municipal resources required for that emergency are so great that deployment of municipal personnel, equipment or services required for the permit would have an immediate and adverse effect upon the welfare and safety of persons or property. B. Such revocation shall take effect immediately, and the director, city manager, chief of police, or fire chief shall promptly notify the permittee of revocation. After revocation, the permittee may not conduct the event, or if the event has commenced, shall immediately cause the event to be terminated in a safe, proper manner. (Ord. No. 1801, § 12(12.26.090), 4-25-2011) Sec. 26.02.100. Fees. A nonrefundable fee shall be paid to cover administrative costs of processing permits. All fees under this article shall be set by commission resolution. The director may require a deposit for the rental of any park or recreational facility. If the director requires a deposit for the rental of any park, the director shall establish standards for return and forfeit. (Ord. No. 1801, § 13(12.26.100), 4-25-2011) Sec. 26.02.110. Park property; regulations authorized.232 The city commission shall have the right to adopt reasonable regulations for the government of the public parks in the city, and no person shall violate any of such regulations. (Code 1982, § 9.66.110; Ord. No. 1313, § 1, 1990) Sec. 26.02.080 120. Regulations pertaining to wheeled recreational devices. A. No person shall use or place a ramp, jump, or any other device used to force a 232 Code ch. 12.26 has park regulations. Why is this section necessary? Move to the parks chapter. PROOFS Page 348 of 977 skateboard, rollerskate, inline skate, bike or similar recreational device with wheels off the pavement on the grounds of any city-owned parking lot, park or sidewalk. B. The city commission may, by resolution, designate areas within city parks in which operation of skateboards, roller-skates, in-line skates, bikes and similar recreational devices with wheels is permitted during specified times. C. The operation of skateboards, rollerskates, inline skates, bikes and similar recreational devices with wheels may also be permitted in designated areas during specially authorized events pursuant to section 26.02.050. (Code 1982, § 12.26.075; Ord. No. 1518, § 2, 2000; Ord. No. 1801, § 9(12.26.130), 4-25-2011) Sec. 26.02.090 130. Skateboard facility regulations. A. No person shall use or place additional obstacles or other materials, such as ramps, jumps, or any other device onto any city-owned skateboard facility. B. Bicycles, scooters and motorized vehicles are prohibited from using any city-owned skateboard facility. C. The hours of operation for skateboard facilities shall be commensurate with the operation of all other park facilities, and shall be clearly posted. All skateboard facilities will be closed during periods of inclement weather. D. The use of food or drink is prohibited on the skating surface of all skateboard facilities. (Ord. No. 1546, § 1(12.26.077), 9-4-2001; Ord. No. 1801, § 10(12.26.140), 4-25-2011) Sec. 26.02.140. Enforcement. This article may be enforced by the director, the city manager, the fire chief, or the police chief. In addition this article may be enforced by injunction, restraining order, declaratory relief, or such other order as may be imposed by a court with appropriate jurisdiction. (Ord. No. 1801, § 17(12.26.160), 4-25-2011) Sec. 26.02.150. Violations, penalties. Any person violating the provisions of any section of this article or any provision or requirement of a permit issued hereunder shall be guilty of a municipal infraction in accordance with chapter 24, article 2, and shall be fined not more than $500.00. The director or any police officer having jurisdiction may issue a citation for a municipal infraction for a violation of this article. Nothing herein shall be deemed to prevent the city from pursuing an additional action in law or equity to recover unreimbursed costs associated with a permit or unpermitted event. (Ord. No. 1801, § 18(12.26.170), 4-25-2011) Sec. 26.02.160. Appeal procedure. A. An aggrieved person shall have the right to appeal the director’s decision of a permit to the city manager. Prior to filing of an appeal with the city manager, the appellant shall, within five business days of the director’s decision, request the director reconsider the decision. The director shall have five days to issue a decision on the request to reconsider. B. An aggrieved person may, only after complying with subsection A of this section, file a written appeal with the commission through the city clerk with a copy to the city manager not later than five days after the city manager’s decision. The appeal to the commission shall state with specificity the grounds for the appeal. The commission shall hear the appeal at the next regularly scheduled meeting following the accepted notice of appeal, provided that the receipt of the notice is received prior to the deadline for submission of new agenda items. PROOFS Page 349 of 977 1. The appeal hearing shall be limited to the grounds stated in the appeal unless the commission for good cause determines to hear other issues or concerns. 2. The appellant, applicant (if not the appellant), the city manager and other persons directly affected may speak or submit evidence at the hearing. Public comment will be accepted. 3. The commission shall make a determination on the appeal at the meeting, unless the applicant agrees to a continuance. The city clerk shall issue the commission’s decision in writing to the applicant either by personal delivery, or regular or electronic mail. (Ord. No. 1801, § 19(12.26.180), 4-25-2011) Sec. 26.02.170. Judicial review. After complying with the requirements of section 26.02.160, an aggrieved person may file a request for judicial review of a decision by the city commission pursuant to this article. The request for review shall be filed no later than 30 days after the commission’s action. (Ord. No. 1801, § 20(12.26.190), 4-25-2011) PROOFS Page 350 of 977 Chapter 27 RESERVED PROOFS Page 351 of 977 Chapter 28 SALES ARTICLE 1. IN GENERAL ARTICLE 2. GOING-OUT-OF-BUSINESS SALES Sec. 28.02.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Fire and other altered goods sale" means a sale held out in such a manner as to reasonably cause the public to believe that the sale will offer goods damaged or altered by fire, smoke, water or other means. 2. "Going-out-of-business sale" means a sale held out in such a manner as to reasonably cause the public to believe that upon the disposal of the stock of goods on hand, the business will cease and be discontinued, including but not limited to the following sales: adjuster's, adjustment, alteration, assignee, bankrupt, benefit of creditor's, benefit of trustees, building coming down, closing, creditor's committee, creditor's, end, executor's, final days, forced out, forced out of business, insolvents', last days, lease expires, liquidation, loss of lease, mortgage sale, receiver's, trustee's and quitting business. 3. "Goods" means and includes any goods, wares, merchandise or other property capable of being the object of a sale regulated hereunder. 4. "Relocation of business" means a sale held out in such a manner as to reasonably cause the public to believe that the person conducting the sale will cease and discontinue business at the place of sale upon disposal of the stock of goods on hand and will then move to and resume business at a new location in the city or will then continue business from other existing locations in the city. (Code 1982, § 5.60.010; Ord. No. 1117, § 14, 1982) Sec. 28.02.020. License required. A. A license issued by the license officer finance director shall be obtained by any person before offering to sell any goods at a sale to be advertised or held out by means to be one of the following kind: 1. Going-out-of-business sale; 2. Relocation of business sale. (Code 1982, § 5.60.020; Ord. No. 1117, § 14, 1982; Ord. No. 1273, § 12(A), 1988) Sec. 28.02.030. Established business requisite. Any person who has not been the owner of a business advertised or described in the application for a license hereunder for a period of at least 12 months prior to the date of the proposed sale shall not be granted a license, except that this minimum may be waived by the license officer finance director with concurrence of the city manager and the following proper application of the owner of such business when such application shows that a hardship exists. (Code 1982, § 5.60.030; Ord. No. 1117, § 14, 1982; Ord. No. 1273, § 12(B), 1988) PROOFS Page 352 of 977 Sec. 28.02.040. Exception for survivors of businessmen. Upon the death of a person doing business in this city, such deceased person's heirs, devisees or legatees shall have the right to apply at any time for a license hereunder. (Code 1982, § 5.60.040; Ord. No. 1117, § 14, 1982) Sec. 28.02.050. Denial of future business licenses. Any person who had held a sale, or who is directly or indirectly related to the business issued a going-out-of-business license, may be denied a new city business license for the same or similar business for a period of 90 days after the expiration of the going-out-of-business license. (Code 1982, § 5.60.050; Ord. No. 1117, § 14, 1982; Ord. No. 1273, § 12(C), 1988) Sec. 28.02.060. Location restricted. Where a person applying for a license hereunder operates more than one place of business, the license issued shall apply only to the one store, or branch specified in the application, and no other store or branch shall advertise or represent that it is cooperating with it, or in any way participating in the licensed sale, nor shall the store or branch conducting the licensed sale advertise or represent that any other store or branch is cooperating with it or participating in any way in the licensed sale. (Code 1982, § 5.60.060; Ord. No. 1117, § 14, 1982) Sec. 28.02.070. Exemptions from provisions designated. A. The provisions of this article shall not apply to or affect the following persons: 1. Persons acting pursuant to an order or process of a court of competent jurisdiction; 2. Persons acting in accordance with their powers and duties as public officials; 3. Duly licensed auctioneer, selling at an auction; 4. Persons conducting a sale of the type regulated herein on the effective date of the ordinance codified in this article, unless such sale is continued for a period of more than 30 days from and after such effective date, in which event such person, at the lapse of the 30-day period, shall comply with the provisions of this article; 5. Any publisher of a newspaper, magazine, or other publication who publishes in good faith any advertisement without knowledge of its false, deceptive or misleading character, or without knowledge that the provisions of this article have not been complied with. (Code 1982, § 5.60.070; Ord. No. 1117, § 14, 1982) Sec. 28.02.080. License--Application requirements. A. A person desiring to conduct a sale regulated by this article shall make a written application a minimum of two weeks prior to the date the sale is to commence to the director of finance, setting forth and containing the following information: 1. The true name and address of the owner of the goods to be the object of the sale; 2. The true name and address of the person from whom the applicant purchased the goods to be sold and the price therefor, and if not purchased, the manner of such acquisition; 3. A description of the place where such sale is to be held; 4. The nature of the occupancy, whether by lease or sublease and the effective date of termination of such occupancy; PROOFS Page 353 of 977 5. The dates of the period of time in which the sale is to be conducted; 6. A full and complete statement of the facts in regard to the sale, including the reason for the urgent and expeditious disposal of goods thereby and the manner in which the sale will be conducted; 7. A complete and detailed inventory of the goods to be sold at such sale as disclosed by the applicant's records. The inventory shall be attached to and become part of the required application. a. Bona fide orders. All goods included in such inventory shall have been purchased by the applicant for resale on bona fide orders without cancellation privileges and shall not comprise goods purchased on consignment, b. Goods purchased for sale hereunder. Such inventory shall not include goods ordered in contemplation of conducting a sale regulated hereunder. Any unusual purchase or additions to the stock of goods of the business hereby affected within 90 days before the filing of an application hereunder shall be deemed to be of such character. (Code 1982, § 5.60.080; Ord. No. 1117, § 14, 1982) Sec. 28.02.090. Same--Fee. An applicant for a license hereunder shall submit to the director of finance an application along with the fee as required in chapter 5.06 chapter 12.233 (Code 1982, § 5.60.090; Ord. No. 1117, § 14, 1982) Sec. 28.02.100. Same--Issuance. A. Licenses shall be issued hereunder on the following terms: 1. Upon tender to the director of finance to the city of the applicant's business license for revocation; 2. Upon issuance of a going-out-of-business license at applicant's business location; 3. Upon being revoked and terminated. (Code 1982, § 5.60.100; Ord. No. 1117, § 14, 1982) Sec. 28.02.110. Same--Period.234 The license shall authorize the sale described in the application for a period of not more than 60 consecutive days, for inventory valued at under $500,000.00, and 90 days for inventory of $500,000.00 and over, Sundays and legal holidays included, following the issuance thereof. (Code 1982, § 5.60.110; Ord. No. 1117, § 14, 1982; Ord. No. 1273, § 12 (D), 1988) Sec. 28.02.120. Nature of sale allowed. The license shall authorize only the one type of sale described in the application at the location named therein. (Code 1982, § 5.60.130; Ord. No. 1117, § 14, 1982) 233 Chapter 5.06 (which is now chapter 16, article 8, division 2) refers to sales of medical marijuana. Did you intend to refer to chapter 12 (business licenses generally)? Please advise. Yes – please cite to chapter 12. 234 Would you like to raise these dollar values? No. PROOFS Page 354 of 977 Sec. 28.02.130. Saleable goods allowed. The license shall authorize only the sale of goods described in the inventory attached to the application. (Code 1982, § 5.60.140; Ord. No. 1117, § 14, 1982) Sec. 28.02.140. License nontransferable. Any license herein provided for shall not be assignable or transferable. (Code 1982, § 5.60.150; Ord. No. 1117, § 14, 1982) Sec. 28.02.150. Duties of licensee. A. Adhere to inventory. A licensee shall make no additions whatsoever, during the period of the licensed sale, to the stock of goods to be sold. B. Advertise properly. A licensee shall refrain from employing any untrue, deceptive or misleading advertising. C. Adhere to advertising. A licensee shall conduct the licensed sale in strict conformity with any advertising or holding out, incident hereto. D. Keep duplicate inventory. A licensee shall keep available at the place of sale a duplicate copy of the inventory submitted with the application and shall present such duplicate to inspecting officials upon request. E. Segregate non-inventoried goods. A licensee shall keep any other goods separate and apart from the goods listed in the field inventory as being objects of sale and shall make such distinction clear to the public by placing tags on all inventoried goods in and about the place of sale apprising the public of the status of all goods. (Code 1982, § 5.60.160; Ord. No. 1117, § 14, 1982) Sec. 28.02.160. License display; merchandise examination; advertisement regulations. On commencement of any sale, the license issued by the director of finance shall be prominently displayed near the entrance to the premises. A duplicate original of the application and stock list pursuant to which the license was issued shall at all times be on the premises and available to the director of finance, and the licensee shall permit the director of finance to examine all merchandise on the premises at any time during the period of the sale of comparison with such stock list. All advertisements and advertising, and the language contained therein, shall be in accordance with the purpose of the sale as stated in the application pursuant to which the license was issued and the wording of such advertisements shall not vary from the wording as indicated in the application. Such advertising shall in no manner or form whatsoever, either directly or indirectly, indicate that such sale is held with the approval of the city. Such advertising shall contain a statement in these words and no others: Sale held pursuant to License No. __________ issued by the Director of Finance of the City of Bozeman on the _______________ day of ____________________, 2019_____ and in such blank spaces shall be indicated the license number and the date and issuance of the license. (Code 1982, § 5.60.170; Ord. No. 1117, § 14, 1982) PROOFS Page 355 of 977 Chapter 29 RESERVED PROOFS Page 356 of 977 Chapter 30 SECONDHAND GOODS ARTICLE 1. IN GENERAL ARTICLE 2. PAWNBROKERS AND SECONDHAND DEALERS* *State law reference—Pawnbrokers, MCA 31-1-401 et seq. Sec. 30.02.010. License required. Every pawnbroker and secondhand dealer before doing any business in the city shall first procure a license therefor as provided in chapter 12, article 2. (Code 1982, § 5.32.010; Ord. No. 1117, § 9, 1982) Sec. 30.02.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Pawnbroker" means any person whose business it is to take or receive by way of pledge, pawn or exchange, any goods, wares or merchandise, or any kind of personal property whatever, for the repayment or security of money loaned thereon. 2. "Secondhand dealer" means any person who engages in the business of buying and selling secondhand goods, wares or merchandise, of any kind whatever. (Code 1982, § 5.32.020; Ord. No. 1117, § 9, 1982) Sec. 30.02.030. License; application; fee. Every pawnbroker or secondhand dealer desiring to do business in the city shall file with the director of finance an application as required in chapter 12, article 2, and pay the fee as required in chapter 12 in chapter 5.06.235 (Code 1982, § 5.32.030; Ord. No. 1117, § 9, 1982) Sec. 30.02.040. Register--Required.236 A. Every person licensed under the provisions of this article shall keep a book in which shall be entered, in legible writing, the name of all articles, and the description of each (when practicable), purchased or taken as a pledge, pawn, or security for money paid, advanced, or loaned thereon, and such register and the property so purchased or taken, together with the names and residences of the person from whom such property was purchased or taken, shall at all times be subject to examination as required in section 30.02.050. 1. Every pawnbroker shall keep a database of records sufficient to identify each pledge, contract for purchase or purchase transaction, and each forfeiture of property pursuant to the terms of a contract for purchase. Every customer shall provide to the pawnbroker the following information for such records: a. The customer's name and date of birth; 235 To what fee are you referring? Chapter 5.06 (now chapter 16, article 8, division 2) refers to sales of medical marijuana. Please provide correct citation. Please cite to chapter 12. 236 MCA 31-1-402 also requires: (b) date when the article must be redeemed; Will be amended in Phase 2. PROOFS Page 357 of 977 b. The current street address, city, state and zip code of the customer's residence; c. The customer's identification from which will be of one or more of the following: (1) A valid state identification card; (2) A valid state driver's license; (3) A military identification card; (4) A valid passport; (5) An alien registration card; (6) An official identification document lawfully issued by a state or federal government. 2. All transactions shall be kept in a numerical register in the order in which they occur, which register shall show the printed name and written or electronic signature of the pawnbroker or agent, the purchase price or other monetary amount of the transaction, the date, time and place of the transaction, and an accurate and detailed account and description of each item of tangible personal property involved, including, but not limited to, any and all trademarks, identification numbers, serial numbers, model numbers, owner-applied numbers, brand names or other identifying marks on such property. (Code 1982, § 5.32.040; Ord. No. 1117, § 9, 1982; Ord. No. 1734, § 1, 1-14-2008) Sec. 30.02.050. Same--Examination by police. No person keeping records as required in section 30.02.040 shall fail, neglect, or refuse to exhibit the same to the chief of police, or any policeman officer, or any third party accompanied by such officer, or any person brought as a friend to redeem property pledged by another, when requested to do so, or refuse to permit the chief of police, or any policeman officer, or any third party brought by a pledge or to redeem the property pledged, to inspect any such article purchased or received. (Code 1982, § 5.32.050; Ord. No. 1117, § 9, 1982; Ord. No. 1734, § 2, 1-14-2008) Sec. 30.02.060. Persons from whom articles shall not be taken. It shall be unlawful for any pawnbroker, secondhand dealer or valuable article dealer to receive, purchase or trade any article from a person who is under the influence of alcohol, under the influence of drugs, or under the age of 18 years. (Code 1982, § 5.32.060; Ord. No. 1117, § 9, 1982; Ord. No. 1734, § 3, 1-14-2008) Sec. 30.02.070. Duration articles must be held. A pawnbroker shall hold all purchases made through a purchase transaction for a period of ten days, during which time the property shall not be disposed of or altered from the form in which it was received. The holding period shall begin on the day the purchase transaction is uploaded into the police department designated database. (Code 1982, § 5.32.070; Ord. No. 1117, § 9, 1982; Ord. No. 1734, § 4, 1-14-2008) Sec. 30.02.080. Internet subscription requirements. Every pawnbroker shall own, maintain and operate a computer system with internet access. Every pawn shop or pawnbroker shall file all records electronically on a daily basis directly to the police department and/or to an internet subscription service designated as an agent of the police PROOFS Page 358 of 977 department as prescribed by the chief of police. The pawn shop or pawnbroker shall enter and upload all information from its database of records regarding contract for purchase, pledges, and purchase transactions. (Ord. No. 1734, § 5, 1-14-2008) Sec. 30.02.090. Requirement for records. A. All records required to be kept under this article must be kept in the English language, in a legible manner and shall be preserved and made accessible for inspection for a period of three years after the date of redemption or forfeiture and sale of the property. B. Upon demand of any police department officer or agent, the pawnbroker shall produce and show any tangible personal property given to the pawnbroker in connection with any contract for purchase or purchase transaction. The pawnbroker's database shall list the date on which each contract for purchase was canceled, whether it was redeemed, or forfeited or sold, and, upon demand, such records shall be made available to any police department officer or agent. (Ord. No. 1734, § 6, 1-14-2008) Sec. 30.02.100. Declaration of ownership. A. The pawnbroker shall, at the time of making the loan contract for purchase or purchase transaction, obtain a written declaration of ownership from the customer stating whether the property that is the subject of the transaction is solely owned by the customer and, if not solely owned by the customer, the customer shall attach a power of attorney from all co-owners of the property authorizing the customer to sell or otherwise dispose of the property. B. The pawnbroker shall require the customer to sign the customer's name in the presence of the pawnbroker on the declaration of ownership. (Ord. No. 1734, § 7, 1-14-2008) 5.32.110. Penalty237. Any person violating or failing to comply with any of the provisions of this article shall be guilty of a misdemeanor. A separate offense shall be deemed committed upon each day during or on which a violation occurs or continues. (Ord. No. 1734, § 8, 1-14-2008) 237 This section is covered by the general penalty. Delete. PROOFS Page 359 of 977 Chapter 31 RESERVED PROOFS Page 360 of 977 Chapter 32 SOLID WASTE* *State law reference—Waste and litter control, MCA 75-10-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. COLLECTION AND DISPOSAL Sec. 32.02.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Automated collection service" means solid waste collection by the city through the use of a collection truck which utilizes a mechanical arm to pick up and dump totes. 2. "Commercial account" means any place or premise used for nonresidential, business or professional purposes only that utilizes solid waste collection and disposal services provided by the city. __ "Director of Public Service" means the Director of Public Service or the Director's designee. 3. "Dumpster" means a solid waste container, owned by the city, used in the dumpster collection system. 4. "Dumpster collection service" means solid waste collection by the city through the use of a collection vehicle to empty the dumpsters. 5. "Solid waste" means all refuse, animal, plant and vegetable matter, ashes, floor sweepings, waste paper and the like; but shall not be construed to include animal or poultry manure, basement, foundation or lawn excavations, or loose earth from excavations of any kind, or trees, except small prunings; debris from the construction or wreckage of buildings which is not a menace to the public health; but this definition shall not be held to exclude as solid waste anything which is commonly known or accepted as such even though not specified herein, and, in case of doubt or dispute, the director of public services shall decide such dispute and the director's decision shall be final and conclusive. 6. "Solid waste service" means the collection, removal and disposal of solid waste by, or at the direction of, the city. 7. "Tote" means a solid waste container, owned by the city, which is used in the automated collection program system. (Code 1982, § 8.16.010; Ord. No. 1323, § 1, 1991; Ord. No. 1367, § 1, 1993; Ord. No. 1478, § 1, 1998; Ord. No. 1544, § 1, 2-19-2001) Sec. 32.02.020. City collection of solid waste. A. Except as hereinafter provided, the director of public services is responsible for the collection and disposal of the solid waste for all residences, buildings or other premises located within the city which accumulates solid waste. B. The city shall provide solid waste service to all persons or properties within city limits requesting such service and as follows: 1. When totally undeveloped, vacant lands are annexed, the city shall provide all subsequent solid waste service; or PROOFS Page 361 of 977 2. When developed lands are annexed that are receiving no solid waste services, the city shall provide all subsequent solid waste services; (Code 1982, § 8.16.015; Ord. No. 1323, § 2, 1991; Ord. No. 1367, § 2, 1993; Ord. No. 1544, § 2, 2-19-2001) Sec. 32.02.030. Collection and disposal by city; exemptions; article provisions not exclusive. A. All solid waste generated within the city limits which will be disposed of by city solid waste services must be properly disposed of in a container acceptable to the solid waste service. The collection of solid waste will be weekly except as follows: 1. 35-gallon totes may be collected on a weekly or monthly depending on need; 2. Dumpsters may be collected daily or weekly depending on need. B. If at any time, the property owner, occupant or operator fails to properly dispose of solid waste in a container as provided in this article including but not limited to arranging for a special pick up or properly tagging excess solid waste items, the director of public services may place a violation notice on the property owner's, occupant's or operator's container and the violation must be corrected within 24 hours. Should the violation not be corrected as required or another violation occur within six months of the first, the director of public services may, at the director's discretion, require the property owner, occupant or operator to move to the next size container or containers and charge accordingly, charge the property owner, occupant or operator under this article, or both. C. If, at any time, the removal or disposal of the solid waste from any property receiving private solid waste service fails to properly dispose of solid waste as required by this article, including but not limited to proper disposal of excess solid waste items, the director of public services, or designee, may inform the property owner, occupant or operator, by certified letter of the deficiencies and, if applicable, a date by which the deficiencies must be corrected. If the director's concerns are not addressed within 48 hours of receipt of the letter or reoccur within a period of six months, the director may require the solid waste to be collected by city solid waste service and charge all costs to the property owner, occupant or operator. (Code 1982, § 8.16.020; Ord. No. 1323, § 3, 1991; Ord. No. 1367, § 3, 1993; Ord. No. 1478, § 2, 1998; Ord. No. 1544, § 3, 2-19-2001) Sec. 32.02.040. Containers; type and number required. A. All solid waste for collection by the city shall be placed in containers as follows: 1. Except as provided in subsection B of this section, for automated collection accounts all solid waste will be placed in a tote provided by the city. 2. For dumpster collection accounts, all solid waste will be placed in a dumpster provided by the city. B. Except as provided herein, it is unlawful to cause or allow solid waste to be placed at the designated point of collection without being contained within a suitable container as hereinbefore described. On those occasions when a property's solid waste is too bulky or too large to fit in the containers provided, the property owner, occupant or operator may place the solid waste outside the containers, provided they arrange for a special pickup or place a tag on all items of solid waste to be removed. The property owner, occupant or operate will be charged as set forth in section 32.02.060. C. Containers will be allowed within the street right-of-way the night before and on the day of solid waste collection only, but must be stored off the right-of-way the remainder of the time. Racks for compost only will be allowed along the alley right-of-way, provided they are adequately maintained and do not encroach upon the driving area within the alley. PROOFS Page 362 of 977 D. It is unlawful for any person or business to dump or place solid waste in a solid waste container belonging to another person or upon any other premises without the consent of the owner of such container or premises. (Code 1982, § 8.16.030; Ord. No. 1323, § 4, 1991; Ord. No. 1367, § 4, 1993; Ord. No. 1478, § 3, 1998; Ord. No. 1544, § 4, 2-19-2001) Sec. 32.02.050. Administration; rules and regulations. The execution and administration of the provisions of this article shall be, and are, committed to the department of public services, and to the director of the department of public services, under the supervision and director of the city manager. The city manager, subject to approval of the city commission, is authorized and empowered to make, alter, amend and repeal rules and regulations not inconsistent with the provisions of this article, for operation and administration; and such rules and regulations, as from time to time so adopted, altered, amended, repealed and approved, shall be considered as a part of this article, to be read and construed and observed in connection herewith. The director of the department of public services shall employ all help necessary for such administration, provide all collecting and hauling equipment, stationery, books or account, blank forms and other incidentals necessary or convenient for efficient and economical administration of the provisions of this article and the rules and regulations adopted and approved pursuant hereto and as herein provided. (Code 1982, § 8.16.040; Ord. No. 1323, § 5, 1991) Sec. 32.02.060. Costs of collection and disposal; collection and payment; solid waste fund. A. The city commission will, on an annual basis, establish the collection rate by resolution. The basis for the collection rate will be set as follows: 1. An automated collection system rate which will be based on the size of tote, frequency of pickup, and any applicable special fees. 2. A dumpster collection system rate based on a base rate, the size of the dumpster and the frequency of pickup and any applicable special fees. 3. A non-subscriber collection system rate for all residential properties within the city which are not serviced by the city and are not serviced by any private contractor licensed by the state public service commission for the collection and transportation based on the monthly fee equivalent to a 65-gallon tote rate. 4. A special pick-up rate for additional or excess solid waste based on the type and amount of additional or excess solid waste. 5. The rates established by resolution shall be set as monthly fees, and those fees shall be included on the monthly water and sewer statement and will become delinquent if not paid by the 15th of the month in which the bill is received. 6. The failure to pay the cost and expense of collecting and disposing of solid waste as established under this article, including but not limited to the cost of equipment, equipment maintenance, salaries, wages, benefits and all general operations costs such as office expenses will be specially assessed annually by resolution against the real property from which solid waste is collected and removed. These shall be in addition to any remedies allowed under section 32.02.110 and the implementation of any lien shall not be interpreted to be the city's only remedy under this section. B. All moneys collected, received or paid under this article shall be kept in a separate fund to be known as the solid waste fund, and shall be paid out only on warrants drawn on such fund and signed as are other warrants of the city for the disbursement of its funds, and upon claims duly executed, presented, audited and allowed, all as required by law. PROOFS Page 363 of 977 (Code 1982, § 8.16.050; Ord. No. 1323, § 6, 1991; Ord. No. 1367, § 5, 1993; Ord. No. 1478, § 4, 1998; Ord. No. 1493, § 1, 1999; Ord. No. 1544, § 5, 2-19-2001) Sec. 32.02.070. Outdoor dumping of solid waste prohibited. Any deposit of solid waste upon the premises or property of another without the express permission or consent of the owner or occupant of such other property or premises, or the deposit of materials not identified or listed as acceptable materials at any recycling receptacle owned and operated by the city or any private entity is forbidden and prohibited, and any such depositing shall be deemed a violation of this article and, upon conviction in the municipal court, shall subject the offender to the penalties provided within this article. (Code 1982, § 8.16.060; Ord. No. 1323, § 7, 1991; Ord. No. 1367, § 6, 1993; Ord. No. 1478, § 5, 1998; Ord. No. 1502, § 1, 1999; Ord. No. 1544, § 6, 2-19-2001) Sec. 32.02.080. Deposit of highly inflammable material prohibited. No person shall place or cause to be placed in or near the receptacle provided for the removal of refuse, any highly inflammable wastes, acids or explosives of any kind whatsoever, including but not limited to hot ashes. All such materials will be disposed of by the owner of the inflammable waste in a manner directed by the manufacturer. (Ord. No. 1544, § 8, 2-19-2001) Sec. 32.02.090. Dumping of hazardous materials/wastes prohibited. The unauthorized dumping or disposal of hazardous materials or hazardous wastes, as defined under state regulations, into the collection and disposal system or upon any properties within the city limits or upon property owned by the city shall be expressly prohibited. Such unauthorized dumping of hazardous materials or hazardous wastes shall subject the violator to the remedies and penalties set forth in the state statutes. (Code 1982, § 8.16.065; Ord. No. 1323, § 8, 1991) State law reference—Hazardous waste management, MCA 75-10-401 et seq. Sec. 32.02.100. Infectious waste. It is unlawful for any person, with or without a permit, to dispose in the city landfill any infectious waste which has not been treated as required by state law and the department of public services landfill policy. Said infectious waste must be rendered non-infectious and no longer a biological hazard. Infectious waste is that waste defined as "infectious waste" in Montana Code Annotated. (Ord. No. 1544, § 9, 2-19-2001) Sec. 32.02.110. Violation; penalty. A. Any person violating any of the provisions of this article, or of any rule or regulation adopted and approved pursuant thereto, will be guilty of a misdemeanor and subject to six months in the county jail, a fine not to exceed $500.00, or both.238 B. In addition to, or separate from, the provisions set forth in subsection A of this section, the director of public services may, at the director's discretion, chose either or both of the following: 1. Refuse to allow any person violating the provisions of this article from using the city's landfill or transfer station; and 238 The penalty is covered by the general penalty. Keep. PROOFS Page 364 of 977 2. Charge any person any costs incurred by the city in connection with said violation. C. Should the director decide to apply the provisions of subsection B of this section, the director shall adopt an appeal procedure to address any concerns of the individual. (Code 1982, § 8.16.070; Ord. No. 1323, § 9, 1991; Ord. No. 1544, § 7, 2-19-2001) Sec. 32.02.120. Contract authority.239 The city shall have the authority to enter into contracts with private haulers to provide service to citizens within city limits as it sees fit. Nothing in this article shall be interpreted as to limit this contracting authority. (Ord. No. 1544, § 10, 2-19-2001) 239 Is this chapter consistent with current hauler contracts? Yes. PROOFS Page 365 of 977 Chapter 33 RESERVED PROOFS Page 366 of 977 Chapter 34 STREETS, SIDEWALKS AND OTHER PUBLIC PLACES ARTICLE 1. IN GENERAL Sec. 34.01.010. Datum line for establishment of street grades; bench marks. A. A datum line, or base, from which the grades of the several streets and avenues within the city shall be determined, is hereby defined, fixed and designated by reference to the following described bench marks, as follows: 1. The top of the sandstone base at the foot of the iron column on the west-side main entrance to the fire engine room in the building known as the City Hall, situated at the southwest corner of East Main Street and Rouse Avenue, is 794.04 feet above datum. 2. The top of the first stone step above the sidewalk, at the west end of the steps and front edge of same, at the front entrance of the Bozeman National Bank in the building known as the Krueger Block, situated at the southwest corner of Main Street and Bozeman Avenue, is 793.99 feet above datum. 3. The top of the stone ball at the front entrance to the courthouse, at the foot of the steps, on the east side, is 801.06 feet above datum. (Code 1982, § 12.04.010) ARTICLE 2. STREET MAINTENANCE Sec. 34.02.010. Street names to be as shown on official map. The several streets, avenues, alleys and public places and extensions of the same in the city shall hereafter be known and designated by the name applied thereto respectively on the maps and plats of the city, and additions, filed in the offices of the city clerk and the county clerk and county recorder. (Code 1982, § 12.12.010) Sec. 34.02.020. Streets and public places to be kept clear of obstructions and debris. Except as otherwise provided by this Code, streets, avenues, alleys and public places of the city, including sidewalks, shall at all times be kept free, clear and clean of all obstructions, debris, encumbrances and encroachments which hamper or interfere with the free and safe use thereof by the public. (Code 1982, § 12.12.020; Ord. No. 1567, § 1, 9-9-2002) Sec. 34.02.030. Work in streets; permit required; interfering with authorized work prohibited. A. No person shall impede, obstruct, or tear up any pavement, sidewalk or crosswalk, or any part thereof; dig any hole, shaft, ditch or drain; or dig or remove any sod, earth, stones, sand or gravel from any street, avenue, alley and public place without first having obtained a permit from the director of public services or designee; or hinder or obstruct the making or repairing of any public improvement or work ordered or done by, or under the authority of the city. B. Permits for excavations in paved streets or alleys shall be subject to an application fee and a pavement degradation fee as established by resolution. Newly constructed streets, reconstructed streets, or streets that have been repaved shall be considered protected streets for a period of five years following construction. Permits for excavations in protected streets shall be subject to an additional pavement degradation surcharge as established by resolution. C. All applicants requesting permits to excavate in any public right-of-way shall either PROOFS Page 367 of 977 file or have on file with the director of public services or designee a street opening bond prior to conducting any work in the public right-of-way. The company writing the bonds shall be licensed to do business in the state. D. All applicants requesting permits to excavate in any public right-of-way shall either file or have on file with the director of public services or designee proof of general liability insurance coverage, prior to conducting any work in the public right-of-way. The insurance company shall be licensed to do business in the state. E. The amount of bonding and insurance coverages required shall be as established by resolution. F. Pavement degradation fees or surcharges shall not be required for emergency utility repair work; installation of new fire sprinkler service lines required by the city fire marshal,240 if no alternate connection point is available; or for infrastructure improvement work being done under the city's capital improvements program. G. Pavement degradation fees shall be deposited into the street maintenance fund. (Code 1982, § 12.12.030; Ord. No. 1591, § 1, 3-17-2003) Sec. 34.02.040. Obstructing or encumbering streets; permit required. No person, association, company or corporation shall encumber or obstruct, or cause to be encumbered or obstructed any street, avenue, alley or other public place in the city by placing therein or thereon any building materials, trash, garbage, rubbish, debris, accumulated snow and ice removed from an adjoining private premises, or any article or thing whatsoever, without first having obtained permission in writing from the director of public services. (Code 1982, § 12.12.040) Sec. 34.02.050. Structures in streets; permit required. No building or other structure, in whole or in part, shall be erected or placed upon any street, avenue, alley or public place within the city without permission in writing of the director of public services first had and obtained. (Code 1982, § 12.12.050) Sec. 34.02.060. Obstructions; warning signals required. When permission shall have been granted, as provided in this article, for the use of any portion of a street, avenue or public place of the city for any purpose whatsoever, the permittee shall cause warning241torches or red lights to be set in such number and location in and about said street, avenue, alley or public place as will serve to, and give reasonable, proper and timely warning of danger or hazard to all persons lawfully using such street, avenue, alley or public place, or any part thereof, and shall take all other reasonably necessary precautions to prevent accidents to the public. The lights and protection shall be maintained between dusk and dawn of each and every day the street, avenue, alley or public place is rendered hazardous or unsafe for usual and customary use. Failure or omission to protect against accidents, as in this section provided, shall forthwith work a forfeiture of any permit which may have been granted with reference thereto. (Code 1982, § 12.12.060) 240 Should "fire marshal" be changed to "fire chief" here? Please leave as fire marshal. 241 Note request by city staff. PROOFS Page 368 of 977 Sec. 34.02.070. Removal of litter or obstructions; notice; work performed by city when; costs. The director of public services is authorized to order any article or thing whatsoever, including but not limited to accumulated snow and ice removed from an adjoining private premises, which encumbers, litters or obstructs any street, avenue, alley or other public place within the city, to be removed. If such removal is not made within six hours after notice to the owner or person in charge thereof to remove the same, or if the owner cannot be readily found for the purpose of such notice, the director of public services shall cause the same to be removed to some suitable place to be designated by the director, at the expense of the person, corporation or association responsible therefor, and under the pains and penalties as hereinafter provided for violations of this article. (Code 1982, § 12.12.070) Sec. 34.02.080. Removal of obstructions; time limit; interfering when work performed by city prohibited. Any building, fence, porch, steps, gallery or other obstruction now upon or hereafter placed or erected upon any street, avenue, alley or public place within the city, or which may be upon any new street, avenue, alley or public place which may hereafter be opened or created within the city, shall be removed therefrom within such reasonable time, not exceeding 30 days, and not less than three days after notice in writing has been given to the owner or person responsible for such obstruction shall be given by the director of public services; and if the owner or person responsible for such obstruction cannot be readily found for the purpose of such notice, it shall be the duty of the director of public services to cause the obstruction to be removed, in the director's discretion; and the expense of such removal shall be recoverable from the owner or person responsible for the obstruction in addition to the penalties herein provided; and every person who interferes with, resists or obstructs by acts or threats, or in any other manner, the removal of such obstruction under the order or direction of the director of public services, is guilty of a violation of this article. (Code 1982, § 12.12.080) 12.12.100. Violation--penalty242. Violations of this chapter shall be punishable by a fine not more than three hundred dollars, or by imprisonment of not less than three days or more than 90 days, or by both such fine and imprisonment. (Code 1982, § 12.12.100) ARTICLE 3. STREET MAINTENANCE DISTRICT Sec. 34.03.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Maintenance" includes, but is not limited to, sprinkling, graveling, oiling, chip sealing, seal coating, overlaying, treating, general cleaning, sweeping, flushing, snow removal and leaf and debris removal. (Code 1982, § 12.16.010; Ord. No. 1310, § 1, 1990) 242 Use the general penalty instead? Yes. PROOFS Page 369 of 977 Sec. 34.03.020. Method of maintenance. All street, alley and public place maintenance to be done within the district or districts created by the city may be done by contract or by forces employed by the city, or by both, in such manner as the commission may elect. (Code 1982, § 12.16.020; Ord. No. 1310, § 2, 1990) Sec. 34.03.030. Method of paying for maintenance. A. The city commission shall estimate, as near as practicable, the cost of the maintenance in each established district annually, not later than the second Monday in August. The commission shall pass and finally adopt a resolution specifying the district assessment option and levying and assessing all the property within each established district with an amount equal to not less than 75 percent of the entire cost of such work. B. The resolution levying the assessment to defray the cost of maintenance shall contain or refer to a list in which shall be described the lot or parcel of land assessed, with the name of the owner thereof, if known, and the amount levied thereon set opposite. C. Such resolution shall be kept on file in the office of the city clerk of the commission for public inspection. D. A notice of intent to adopt such resolution, signed by the city clerk of the commission, stating that the resolution levying the special assessment to defray the cost of maintenance in each established district is on file in the city clerk of the commission's office and subject to inspection for a period of five days, shall be published at least once in a newspaper published in the city. The notice shall state the time and place at which objections to the final adoption of the resolution will be heard by the commission. The time for the hearing shall be not less than five days after the publication of the notice. E. At the time so set, the commission shall meet and hear all objections which may be made to such assessment or any part thereof and may adjourn from time to time for that purpose and may by resolution modify such assessment in whole or in part. F. A copy of the resolution, certified by the city clerk of the commission, must be delivered to the city treasurer and the assessments shall be placed upon the tax roll and collected in the same manner as other taxes and assessments. (Code 1982, § 12.16.030; Ord. No. 1310, § 3, 1990) ARTICLE 4. SIDEWALK AND CURB CONSTRUCTION243 Sec. 34.04.010. City engineer244 authority; materials, construction and widths. A. All sidewalks and curbs which may hereafter be constructed upon any street or avenue in the city, whether ordered in by the city commission or constructed under the laws governing special improvement districts, or installed by any contractor or property owner, or otherwise, shall be constructed under the supervision, direction and inspection of the city engineer, and out of such materials as may be prescribed by the city engineer. B. All sidewalks constructed in the central business district of the city shall have a minimum width of ten feet unless a variance is granted by majority vote of the city commission. All other sidewalks constructed on any of the streets and avenues of the city shall have a minimum width of five feet. 243 Is this article intended to be superseded by Code ch. 18.44? Leave as is. 244 Is the city engineer a different person from the director of public service? Yes. Leave as is. PROOFS Page 370 of 977 (Code 1982, § 12.20.010; Ord. No. 1235, § 1, 1987) 12.20.020. Establishing grades and setting stakes--requirements before construction245. No sidewalk or curb shall be constructed on any of the streets, avenues or alleys of the city without the city engineer having first established and set the stakes for the grades thereof; and before any property owner or anyone in his behalf shall commence the construction of any sidewalk or curb, he shall ascertain of the city engineer the cost for establishing the desired grade and stakes for the same, and shall pay the amount prescribed by the city engineer to the director of finance, whose receipt exhibited to the city engineer shall be his authorization for establishing the grades and setting the stakes. (Code 1982, § 12.20.020) 12.20.030. Establishing grades and setting stakes--charges246. __ The charge for establishing grades and stakes shall be as follows: __ For sidewalk or curb--twenty-five cents per front foot; __ For curb and sidewalk--30 cents per front foot. __ The minimum charge to anyone shall be ten dollars and the maximum charge for one block shall be seventy-five dollars. (Code 1982, § 12.20.030; Ord. No. 1235, § 2, 1987) Sec. 34.04.020. Repair of sidewalks by abutting owners; failure to repair. All owners or agents of owners with property abutting and fronting upon any street or alley within the corporate limits of the city are required to keep the public sidewalks immediately abutting their property in good order and repair. Each such owner shall be liable to the city for all losses to the city or recoveries from the city for damages to person or property of others caused by such owner's failure or that of such owner's agents to repair and keep in good order and reasonably safe condition all such sidewalks abutting and fronting such owner's property within the corporate limits of the city. The city may, at its discretion, through the director of public services, notify such owner that repairs are necessary to put such sidewalk in good order and such owner shall, within 30 days after such notification, under the supervision of the director of public services, complete such repairs, as specified in such notice. If the person fails to make the required repairs, the city may repair same and pay for such repairs. The amount so paid by the city shall be lien upon the lot and may be enforced or the amount may be recovered against the owner by a suit before any court of competent jurisdiction. (Code 1982, § 12.20.035; Ord. No. 1235, § 3, 1987; Ord. No. 1300, § 1, 1990) Sec. 34.04.030. Fees; payments and deposit. All fees shall be paid to the director of finance and deposited in the general fund. (Code 1982, § 12.20.040) Sec. 34.04.040. Permanent concrete sidewalks required; when variance permitted. Permanent concrete sidewalks shall be constructed within and upon all of the streets and avenues of the city, provided that the city engineer may issue a permit for the construction of temporary sidewalks of other materials. 245 Deleted at request of city staff. 246 The charges are rather low. Adopt by resolution? Delete section. PROOFS Page 371 of 977 (Code 1982, § 12.20.050) Sec. 34.04.050. Notice to construct curb or sidewalk; form and contents247. Whenever the city commission orders a sidewalk or curb, or either thereof, constructed in front of any lot or parcel of land within the city, without the formation of a special improvement district, pursuant to the provisions of MCA 7-14-4109, or any acts supplementary thereto or amendatory thereof, notice of such order of the city commission shall be given by the city manager to the owner or agent of such property, by mailing notice to the owner's or agent's last known address, according to the requirements of MCA 7-1-4120, and such notice shall be in substantially the following form: No._____ Bozeman, Montana, _____, 2019_____ TO___________________________ YOU ARE HEREBY NOTIFIED that the city commission of the City of Bozeman, at its meeting, held on the _____ day of _____, ordered the _____ of a cement concrete _____ in front of that certain lot or parcel of land owned by you, situated in the City of Bozeman, Montana, and described as follows, to-wit: Lots_______________________________________ Block ______________________________ Addition. Said improvement to be constructed in accordance with said order and the approved specifications therefor, on file in the office of the City Engineer of said City, and at the established grade of said street. You will be allowed 30 days from and after the service of this notice upon you to construct, or cause to be constructed, the said improvement as ordered, and if you shall fail or neglect to construct, or cause same to be constructed, within the said period of time, the City of Bozeman will construct, or cause to be constructed, the said improvement as ordered and will assess the cost thereof against the said property in front of which the same is constructed. ______________________________ City Manager (Code 1982, § 12.20.060; Ord. No. 1235, § 4, 1987) Sec. 34.04.060. Construction ordered by city; warrant for payment of costs. A. When any such sidewalk and curb, or either thereof, are constructed by or under the direction of the city commission, payment for the construction thereof shall be made by special warrants which shall be drawn upon a fund to be known as the "special sidewalk and curb fund," and such warrants shall be in substantially the following form: SPECIAL SIDEWALK AND CURB WARRANT 247 .060 and .070: Ordinance 1300 (1990): Engineering comment in reference to .060 and .070 states that this ordinance removed curb-and-gutter from the homeowners’ responsibilities. Ordinance 1300 did not specifically amend .060 and .070; rather, it only amended .035, which the draft codification accurately reflects. Unfortunately, Ord. 1300 did not have a “repealer” provision that would indicate any other provision in the BMC that was in conflict with the amendment in 1300 would likewise be amended or repealed. Bottom line: we have to leave it like it is and someone will need to come back after codification with a cleanup ordinance. PROOFS Page 372 of 977 Bozeman, Montana No._____ 2019_____ $_____ Bozeman, Montana, __________, 2019_____ The City of Bozeman, Montana, will pay to _____ OR BEARER HEREOF, the sum of __________ DOLLARS on account of sidewalks and curbs constructed in said city. This Warrant is issued under the provisions of MCA 7-14-4109 and Acts amendatory thereof and supplementary thereto, and under resolutions and ordinances of said city relating to sidewalks and curbs. The principal and interest of this warrant are payable at the office of the office of the City Treasurer at Bozeman, Montana. This warrant bears interest at the rate or rates designated by the successful bidder and authorized and accepted by the city commission from date of its registration as expressed herein until date called for its redemption by the City Treasurer. The interest on this warrant is payable on the first day of January in each year, until the payment of this warrant, as expressed by the interest coupons hereto attached. This warrant is payable from the collection of a special tax or assessment and is redeemable at the option of the City of Bozeman on or before the first day of January, A.D. 2019_____, at any time there is money to the credit of the said Sidewalk and Curb Fund for the redemption thereof and in the manner provided for the redemption of the same. The holder of this warrant shall have no claim therefor against said City in any event except from the collection of special assessments made to defray the cost of sidewalks and curbs for which this warrant is issued, but his248 the holder's remedy in case of nonpayment shall be confined to the enforcement of such assessments. IT IS HEREBY CERTIFIED AND RECITED that all acts and things required to be done precedent to and in the issuance of this warrant have been properly done, approved and been performed in the manner prescribed by the laws of the State of Montana and the resolutions of the City of Bozeman, Montana, relating to the issuance hereof, and the interest coupons hereto attached are signed with the facsimile signatures of the Mayor and City Clerk. THE CITY OF BOZEMAN, MONTANA By____________________________ Attest: ______________________ City Clerk, as Clerk to the City Commission Registered in the office of the Director of Finance of the City of Bozeman, Montana, this __________ day of ____________________, A.D. 2019_____, and redeemable at the option of the City of Bozeman on or before the first day of January, A.D. 2019_____. _____________________________ Director of Finance B. Such warrants shall be signed by the mayor and city clerk of the commission, and shall bear the corporate seal of the city and shall have attached to them interest coupons, one for each year's interest to become due thereon, and shall bear the facsimile signatures of the mayor and city clerk, and shall be in substantially the following form: 248 Please note: Material contained in forms and other quoted material was not made gender neutral. Please change "his" to "the holder's." PROOFS Page 373 of 977 Coupon No._____. Special Sidewalk and Curb Fund $_____ On January 1, 2019_____, the Director of Finance of Bozeman, Montana, will, at his office in the City of Bozeman, Montana, pay __________, or bearer, the sum of __________ Dollars, being interest due on said date of payment on its Special Sidewalk and Curb Fund Warrant No. _____ issued on account of sidewalks and curbs. THE CITY OF BOZEMAN _______________________ __________, Mayor City Clerk, as Clerk to the city commission. C. Such special sidewalk and curb warrants shall be issued in the denomination of $100.00 each, or fractions thereof when necessary. (Code 1982, § 12.20.070; Ord. No. 1235, § 5, 1987) ARTICLE 5. DOWNTOWN SIDEWALK ENCROACHMENT PERMIT PROGRAM Sec. 34.05.010. Purpose and intent. A. It is the intent of the city commission, in enacting the ordinance from which this article is derived, to: 1. Serve and protect the health, safety and welfare of the general public; 2. Regulate and control private uses and encroachments occurring upon public rights of way in the downtown business district of the city by establishing distinct criteria to permit and/or approve non-substantial encroachments, substantial encroachments, and exclusive uses; 3. Develop a fair and equitable program that will enhance the overall appearance, ambiance and environment of the downtown business district. (Ord. No. 1567, § 2(12.22.010), 9-9-2002; Ord. No. 1785, § 1(12.22.010), 5-17-2010) Sec. 34.05.020. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Block face" means one side of a street between two consecutive intersecting rights of ways, including alleys; 2. "Downtown business district" means those areas of the B-2 and B-3 zoning district of the city located on or between the north side of Lamme Street and the south side of Olive Street and on or between the east side of Broadway Avenue and west side of 3rd Avenue; 3. "Commercial use" means any activity involving the sale of goods or services carried out for profit; 4. "Director" means the director of public services and includes the director's authorized representative; 5. "Encroachment" means any fixture or device including but not limited to a showcase, table, bench, rack, handcart, pushcart, sign, portable sign, stall, newspaper dispensers and publication racks, seating area, fence, barrier, or partition which intrudes into or invades the public right-of-way; 6. "Exclusive use" means any act undertaken by a private entity upon the public right-PROOFS Page 374 of 977 of-way of the downtown business district that excludes the public from their normal use and enjoyment of the public right-of-way; 7. "Non-substantial encroachment" means any encroachment occurring upon the public right-of-way of the downtown business district that is temporary and mobile in nature and does not modify the material components of the public right-of-way; 8. "Permanent" means a period of six months or more; 9. "Portable sign" means any sign not permanently attached to the ground or other permanent structure, or a sign designed to be transported, including but not limited to signs designed to be transported by means of wheels and signs converted to A- or T-frames; 10. "Public right-of-way" means any area legally open to public use, including but not limited to, and projecting vertically skyward above, public streets, sidewalks, roadways, highways, parkways, alleys, or parks as well as areas surrounding and immediately adjacent to public buildings; 11. "Public use" means any normal use of the public right-of-way as distinguished from "exclusive use" as defined under this article; 12. "Side street" means all streets within the downtown business district that run in a north-south direction. 13. "Sidewalk" means all that area legally open to public use as a pedestrian public way between the curbline and the legal building line of the abutting property; 14. "Sidewalk cafe" means any group of tables, chairs, benches, barriers or partitions, trash containers and suitable decorative devices maintained upon any part of the public right-of-way for use by an establishment with a valid food and drink permit in the sale to the public of food, refreshments, and beverages of all kinds and is not a sidewalk vending cart; 15. "Sidewalk display" means any showcase, table, bench, rack, sign, stall, kiosk, or any other fixture or device used for the purpose of displaying, exhibiting, carrying, transporting, storing, selling, or offering for sale any food, beverage, goods, wares, merchandise, event, or service upon a sidewalk; 16. "Sidewalk vending cart" means any handcart, pushcart, stall, or any other mobile device that is used for the purpose of displaying, exhibiting, carrying, transporting, storing, selling, or offering for sale any food, beverages, goods, wares, or merchandise upon a sidewalk; 17. "Special event" means any occasion including but not limited to fairs, shows, exhibitions, city-wide celebrations, and festivals taking place within a specifically defined area of the city; and 18. "Substantial encroachment" means any encroachment that creates a permanent physical reduction in existing asphalt width to streets in the downtown business district except for intersection curb bulbs installed for traffic calming or pedestrian safety purposes; 19. "Temporary" means a period of six months or less. (Ord. No. 1567, § 2(12.22.020), 9-9-2002; Ord. No. 1692, § 1, 2-12-2007; Ord. No. 1785, § 1(12.22.020), 5-17- 2010) PROOFS Page 375 of 977 Sec. 34.05.030. Encroachment on public right-of-way prohibited. Except as otherwise provided by this Code, it is unlawful to obstruct the public rights of way of the downtown business district with debris, encumbrances or encroachments of any kind which hamper or interfere with the free and safe use or passage by the public. (Ord. No. 1567, § 2(12.22.030), 9-9-2002; Ord. No. 1785, § 1(12.22.030), 5-17-2010) Sec. 34.05.040. Exception for downtown business district. Vendors doing business in the downtown business district shall be allowed to use city sidewalk as provided in this article. (Ord. No. 1567, § 2(12.22.040), 9-9-2002; Ord. No. 1785, § 1(12.22.040), 5-17-2010) Sec. 34.05.050. Non-substantial encroachments; permit required. A. Upon application, the director may authorize, subject to specific conditions as determined by the director, non-substantial encroachments to occur upon sidewalks in the downtown business district. Each permit must be renewed on an annual basis and the director shall have the right to refuse to renew any permits issued. All applications for non-substantial encroachments must include: 1. A completed downtown sidewalk encroachment revocable permit form including any necessary supporting materials; 2. A letter of support from the owner, operator, or manager of the business immediately adjacent to the sidewalk where the use is requested, or if a letter of support cannot be obtained, an explanation summarizing the lack of support; 3. A sketch depicting, as accurately as possible, the size and location of all requested encroachment items as well as other existing obstructions or improvements which would limit the free use of the sidewalk by pedestrians; 4. A certificate of liability insurance which names the city and (if non-substantial encroachment occurring upon a state-designated primary or urban route) the state as additional insureds. The insurance must provide a minimum coverage of $750,000.00 for each claim and $1,500,000.00 for each occurrence; 5. The permit holder shall agree in writing to indemnify, defend, and hold harmless the city and (if non-substantial encroachment occurring upon a state-designated primary or urban route) state department of transportation and their employees and agents against all claims, liability, loss, damage, or expense incurred by the city and/or state department of transportation due to any injury to or death of any person or any damage of property caused by or resulting from the activities for which the permit is granted; and 6. A valid city business license corresponding to the use requested. (Ord. No. 1567, § 2(12.22.050), 9-9-2002; Ord. No. 1592, § 1, 3-17-2003; Ord. No. 1785, § 1(12.22.050), 5-17- 2010) Sec. 34.05.060. Substantial encroachments--Approval required. Substantial encroachments in a public right-of-way of the downtown business district may occur only after a project proposal satisfies provisions of chapter 38 (see section 18.020.080.B), is found to be compliant with required regulations of same, and satisfies specific conditions as determined by the director. Projects proposing substantial encroachments shall submit to the city engineer for approval a report certified by a professional engineer addressing the following conditions, both present and future: truck turning movements, vehicular site vision, pedestrian PROOFS Page 376 of 977 conflicts, and, as directed by the city engineer, intersection level of service. Substantial encroachments affecting state-designated primary and urban routes shall also be approved by the state department of transportation. Substantial encroachment projects shall satisfy all applicable emergency service requirements. (Ord. No. 1785, § 1(12.22.060), 5-17-2010) Sec. 34.05.070. Same--Standards, exceptions and limitations. A. To protect public health, safety and welfare, and provide for the orderly development of the downtown business district, the following standards, exceptions and limitations are hereby placed upon substantial encroachments: 1. Substantial encroachments shall not occur within the public right-of-way of Main Street and Rouse Avenue; 2. Substantial encroachments shall occur along the entire length of a property; 3. Two-way traffic (or two-lane traffic for one-way streets) shall be provided at all times and in all locations; 4. A minimum 11-foot-wide vehicular travel lane shall be provided, measured from face of curb or edge of parking lane. 5. A minimum seven-foot-wide parking lane shall be provided, measured from face of curb; 6. Sidewalk alterations shall provide a minimum six-inch-thick, ten-foot-wide sidewalk for public use and shall be ADA compliant; 7. Curb alterations shall provide positive drainage and shall not cause ponding to occur in the gutter line. City curb construction standards shall be adhered to; 8. Construction plans shall be reviewed and approved by the city engineer and a pre- construction meeting held prior to initiating construction; 9. Substantial encroachments involving the elimination of any on-street parking within that area of the B-3 zoning district regulated under this article shall provide the following: a. Parking commission approval; and b. Compensation shall be provided for each on-street parking space eliminated from the downtown business district parking inventory in accordance with the following schedule: (1) A one-time payment of $5,000.00 per eliminated space. Payment shall be provided prior to final approval of the proposal under chapter 38; or (2) The applicant may elect to pay for the eliminated space over a period of time not more than ten years, making equal monthly payments of principal and interest. Interest will be charged at a rate equal to the current yield of the ten-year U.S. Treasury Note at the time the space is eliminated against a $5,000.00 principal amount. 10. The adjacent property owner shall keep all sidewalk areas, including those areas of exclusive use, free and clear of snow and ice at all times. (Ord. No. 1785, § 1(12.22.070), 5-17-2010) Sec. 34.05.080. Exclusive use of public right-of-way; permit required. A. Upon application, the director may authorize exclusive use of a public right-of-way PROOFS Page 377 of 977 to occur in the downtown business district subject to specific conditions as determined by the director. The director reserves the right to request the city commission reclaim approval authority over any exclusive use application received. Each approved permit shall be valid for a period determined by the director, which shall not exceed ten years. Each permit shall be reviewed on an annual basis, subject to revocation as provided herein during the entitlement period. The permit shall be issued to the private property owner adjacent to the public right-of-way in which the exclusive use occurs. The permit shall not automatically convey with the adjacent private property and shall not convey any ownership interest in the public right-of-way, regardless of the privileges and exclusive benefits the permit provides the permittee. The permit may be transferred to a new adjacent private property owner upon request and application to the director. If the new property owner fails to make this request to the director within 30 days following final sale or transfer of interest in the property, then the permit shall become null and void and a new permit shall be applied for. 1. Any use permitted under section 34.05.130 that is physically barricaded or partitioned from the sidewalk by a fence or other similar means creates an exclusive use of the public right-of-way as defined under this article and requires an exclusive use permit. 2. All applications for exclusive use of a public right-of-way must include: a. A completed downtown right-of-way exclusive use permit form including any necessary supporting materials; b. A site plan depicting, as accurately as possible, the size and location of all requested encroachment items necessary to support the exclusive use of the public right-of-way as well as other existing obstructions or improvements which would limit the free use of the sidewalk by pedestrians; c. A certificate of liability insurance which names the city and (if exclusive use occurring upon a state-designated primary or urban route) the state as additional insureds. The insurance must provide a minimum coverage of $750,000.00 for each claim and $1,500,000.00 for each occurrence. The insurance policy shall automatically renew during the permit period and a copy of the current proof of insurance coverage shall be kept on file with the director at all times. Coverage limits may adjust with permit renewals; d. The permit holder shall agree in writing to indemnify, defend, and hold harmless the city and (if exclusive use occurring upon a state-designated primary or urban route) state department of transportation and their employees and agents against all claims, liability, loss, damage, or expense incurred by the city and/or state department of transportation due to any injury to or death of any person or any damage of property caused by or resulting from the activities for which the permit is granted; e. A valid city business license corresponding to the use requested. 3. Exemption for tables and chairs. Tables and chairs not physically separated and/or partitioned from the sidewalk by a fence or other similar means are exempt from this section and are considered non-substantial encroachments approved under provisions of section 34.05.050. (Ord. No. 1785, § 1(12.22.080), 5-17-2010) PROOFS Page 378 of 977 Sec. 34.05.090. License or approval letter required. Any applicant intending to sell food or beverages must provide a copy of a food purveyor's license or an approval statement issued by the Gallatin City-County Health Department with the application for a permit under this article. (Ord. No. 1567, § 2(12.22.060), 9-9-2002; Ord. No. 1785, § 1(12.22.090), 5-17-2010) Sec. 34.05.100. Uses permitted under this article. A. It is the permittee's responsibility to place any encroachments allowed under this article in a manner which ensures safe pedestrian and vehicular travel, complies with any conditions placed upon the permit, and to immediately correct any deficiencies noted by the director. All items permitted pursuant to this article shall be placed not less than two feet from the curb, or not less than 18 inches from the curb when located on side streets that have no adjacent on-street parking, and leave a minimum of six feet of sidewalk aisle clear and shall not interfere with vehicular sight triangles as set forth in chapter 38, and as necessary for safe vehicular traffic. Additionally, all encroachments permitted under this article will be built, installed, and maintained in such as a manner as to ensure the safety of the public. B. Permits may be issued under this article for the following uses: 1. Benches. Any benches must be placed flush to the corresponding building and must not project more than three feet into the sidewalk; 2. Portable signs. These signs must not exceed a height of five feet or a width of three feet, placed adjacent and perpendicular to the corresponding building and within four feet of the business entrance; 3. Sidewalk displays. With the exception of kiosks, displays must be placed flush against the building, must not exceed six feet in height, and must be within four feet of the business entrance; 4. Kiosks. Kiosks must not exceed seven feet in height, except as allowed in section 38.28.070.E, and must be placed in a manner so as not to interfere with free flow of pedestrian and vehicular traffic; 5. Bike racks. Bike racks must not exceed a ten-bike capacity with five bikes per side and be placed so the parked bikes run parallel with the street; 6. Sidewalk vending carts. The cart must be no more than three feet wide, must be placed within 4.5 feet of the store face and may operate between 6:00 a.m. and 9:00 p.m. or until sunset, whichever occurs first. All signage must be attached to the cart and shall not exceed six feet in length. The city, at its discretion and upon request, may allow the use of a portable sign. Vending carts will be allowed on Mendenhall, Main, and Babcock Streets only and not more than one cart will be allowed per city block face; 7. Tables and chairs. Tables used for the primary purpose of consuming food or beverages must be no more than four feet wide and set in a manner such that respective table and chair settings do not occupy more than five feet of total right-of- way width. Tables and chairs may be located building and/or curbside, subject to the provisions of section 34.05.130, and shall maintain at all times upon the public sidewalk a minimum six-foot-wide clear aisle for pedestrian movement; 8. Hanging pots. Pots for flowers or other miscellaneous items may be hung from the rods extending from the light poles only. The bottoms of all pots must not be lower than seven feet and shall not block street signs in any manner; PROOFS Page 379 of 977 9. Newspaper dispensers and publication racks. Coin-operated newspaper dispensers and media publication racks and displays must be placed flush against the building and may not exceed four feet in height and shall be of a design quality approved by the city; 10. Sidewalk cafe serving alcohol. a. All sidewalk cafes having an alcoholic beverage license shall be required to have the staff of the establishments owning such sidewalk cafes serve all food, alcoholic beverages and non-alcoholic beverages in the sidewalk cafe area only. Service of alcoholic beverages in all sidewalk cafes shall be limited to persons seated at tables in the sidewalk cafe site. The serving of alcohol shall be served in glasses and not in paper or plastic products. Any person serving alcohol must have received alcohol server training through a city- approved training program; b. The sidewalk cafe alcoholic beverage license issued by the state must include, as part of the licensed premises floor plan, the sidewalk cafe area. The use and operation of the sidewalk cafe area shall occur in accordance with the state-approved alcoholic beverage license and a copy of the license shall be kept on file with the director of public services and the director of planning and community development; c. Liability insurance required in section 34.05.080.A.2.c will cover the sidewalk cafe area; d. Each sidewalk cafe serving alcoholic beverages shall be responsible for policing the area of the sidewalk cafe to be sure that customers are of legal drinking age and that alcoholic beverages are not removed from the premises; e. There shall be no sale of alcohol for consumption at a sidewalk cafe after 12:00 midnight until normal opening of business each day. In addition, all containers of intoxicating beverages shall be removed from the tables of the sidewalk cafe and the sidewalk cafe area by 12:00 a.m. midnight; f. The sidewalk cafe area must be adjacent to the licensed building and shall be enclosed, except for ingress and egress entry points, by a temporary fence approved by the director of public services. The fence shall be: (1) Black or of a color that matches the adjacent building; (2) At least four feet in height; and (3) Shall be of a design and quality that does not permit children or other persons to crawl under the fence; 11. Miscellaneous items. The director of public services may permit other items as deemed appropriate. The director shall place what restrictions the director deems necessary to ensure the safe passage for pedestrian and vehicular traffic. (Ord. No. 1567, § 2(12.22.070), 9-9-2002; Ord. No. 1692, § 2, 2-12-2007; Ord. No. 1785, § 1(12.22.060), 5-17- 2010) Sec. 34.05.110. Notification of name or address change. All permittees will ensure that a current and correct name, residential address and mailing address are on file with the director of public services. Should either the permittee's name, business name or permittee's address provided on the application change, the permittee must notify the director within five working days of such change and provide the same with the accurate information. PROOFS Page 380 of 977 (Ord. No. 1567, § 2(12.22.080), 9-9-2002; Ord. No. 1785, § 1(12.22.110), 5-17-2010) Sec. 34.05.120. Littering and trash removal. A. Permittees will keep the sidewalks, roadways and other spaces adjacent to their sites or locations clean and free of paper, peelings and refuse of any kind generated from the operation of their business; B. Permittees engaged in food vending will make available a receptacle for litter. The permittee will regularly empty and maintain the receptacle and mark it appropriately to provide proper notice to the public of its purpose. Upon ceasing operations for the day, permittees will ensure the area immediately adjacent to the site is thoroughly clean and free of debris. Finally, permittees must remove all debris and trash from the area and will not use trash receptacles without permission from the owner. (Ord. No. 1567, § 2(12.22.090), 9-9-2002; Ord. No. 1785, § 1(12.22.120), 5-17-2010) Sec. 34.05.130. Special event or temporary permits. The director of public services may issue a temporary permit for special or temporary events which may take place in the downtown business district, including but not limited to "Crazy Days," "Taste of Bozeman," and "Music on Main." Should the director determine a temporary permit is applicable for any reason, the director may waive any of the requirements set forth in this article the director feels are inapplicable and allow alternative provisions consistent with the purposes of this article. (Ord. No. 1567, § 2(12.22.100), 9-9-2002; Ord. No. 1785, § 1(12.22.130), 5-17-2010) Sec. 34.05.140. Fees. A. Non-substantial encroachments. A $10.00 fee shall be charged for non-substantial encroachments which shall be provided with each new application/renewal of a downtown sidewalk encroachment revocable permit. B. Substantial encroachments. Application fees authorized in chapter 38 shall be provided. C. Exclusive uses. A fee calculated by multiplying the square-foot area of the right-of- way encumbered by the exclusive use of same, by the total final square-foot land value of the adjacent property (as determined in the most recent appraisal by the state department of revenue for ad valorem property taxation purposes), multiplied by the whole-month percentage of the calendar year the exclusive use is occurring, multiplied by a factor of five percent shall be assessed and provided with each downtown right-of-way exclusive use permit application and annual renewal. (Ord. No. 1785, § 1(12.22.140), 5-17-2010) Sec. 34.05.150. Suspension and revocation of permits for non-substantial encroachments. A. The director of public services may suspend or revoke any permit for non-substantial encroachment issued under section 34.05.050 for any of the following reasons: 1. Fraud, misrepresentation or a knowingly false statement contained in the application for the permit; 2. Conducting any activity in any manner contrary to the conditions of the permit; 3. Conducting any permit activity in such a manner as to create a public nuisance, cause a breach of the peace, constitute a danger to the public health, safety, welfare or morals, or interfere with the rights of abutting property owners; 4. Failure to regularly empty and maintain a litter receptacle; PROOFS Page 381 of 977 5. Cancellation of the Gallatin City-County Health Department's authorization for a food or beverage vending unit; or 6. Failure to comply with any provision in this article or any condition of approval required by the director. B. Should the director of public services decide to exercise the rights given under this article, notice may be delivered in person or mailed to the address provided on the application. The director shall state all reasons for the decision to revoke or suspend the permit and the length of the suspension, if any; C. The permittee will have three days from the date of receipt of the letter to file a written response to the director's letter or to remove all items from the city's sidewalk. Failure to respond to the director's letter or to remove the items from the city's sidewalk will be cause for the director to order the property removed by local law enforcement or the code compliance officer. The property shall be considered evidence and will not be returned until the resolution of any citation issued under BMC this Code; D. Should the permittee fail to pick up the letter for a period of five working days after it has been mailed, the director may then direct the code compliance officer249 or law enforcement to remove the permittee's property from the city's sidewalks; E. Should the director determine the permittee's property presents a safety hazard or requires immediate remedy, including but limited to sidewalk maintenance, then in that event, the director may order the property removed immediately by local law enforcement or the code compliance officer. (Ord. No. 1567, § 2(12.22.110), 9-9-2002; Ord. No. 1785, § 1(12.22.150), 5-17-2010) Sec. 34.05.160. Suspension or revocation of exclusive uses of public right-of-way. A. The director of public services may suspend any permit for exclusive use issued under section 34.05.080 for any of the reasons listed under section 34.05.150 by providing written notice to the permittee stating all reasons to suspend the permit. The permittee will have three days from the date of receipt of the letter to remedy the deficiencies stated in the notice to the satisfaction of the director. In the absence of remedy, the director shall schedule a permit revocation hearing with the city commission which has sole power to revoke any permit issued under section 34.05.080. 1. Upon revocation of any permit issued under section 34.05.080, the city commission can order any substantial encroachments, features, improvements and/or alterations made to the public right-of-way installed to support an exclusive use be removed at the permit holder's sole expense upon their finding of said substantial encroachments, features, improvements and/or alterations posing a threat to the public's health, safety, and welfare. a. Failure to remove, or failure to cause the removal of any substantial encroachments, features, improvements and/or alterations to the public right- of-way ordered by the city commission within 15 days following said order will result in the city removing the ordered items and charging the permittee for all expenses. In removing the ordered items, the city may call upon any city department or division for whatever assistance deemed necessary or may by private contract cause the removal of the ordered items. 249 Is code compliance officer the correct title? The code compliance officer is mentioned here and again in subsection E below. Please leave as is. PROOFS Page 382 of 977 b. The city, after completing the removal of the ordered items, shall file a statement of costs with the finance department which shall mail to the permittee a notice that contains the amount set forth in the statement and a declaration that the city will assess against the property the amount set forth in the notice and shall enter that amount in the city liens docket which shall therefore constitute a lien against the property. 2. The determination of the city commission is a final administrative decision. (Ord. No. 1785, § 1(12.22.160), 5-17-2010) Sec. 34.05.170. Appeal procedure. Any permittee will have the right to appeal the denial, suspension or revocation of any permit issued under section 18.22.050 chapter 34, article 5 to the city manager. The permittee will make the appeal within ten days after receiving notice of the denial, suspension or revocation by filing a written notice with the city manager. (Ord. No. 1567, § 2(12.22.130), 9-9-2002; Ord. No. 1785, § 1(12.22.170), 5-17-2010) Sec. 34.05.180. Enforcement; penalties ; designated a municipal infraction. A. In addition to suspension or revocation under section 34.05.150 or 34.05.160, a violation of this article is a municipal infraction punishable by the following civil penalties: 1. For a first violation, a civil penalty of not less than $100.00 or more than $300.00 shall be imposed; 2. For each repeat violation, a civil penalty of not less than $100.00 or more than $500.00 shall be imposed; 3. Each day of violation shall constitute a separate violation. B. The court may order the permit revoked in addition to any other penalty imposed by the court. (Ord. 1567, § 2(12.22.140), 9-9-2002; Ord. No. 1700, § 1, 5-21-2007) ARTICLE 6. SNOW REMOVAL FROM SIDEWALKS Sec. 34.06.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: __ "Person" means any individual, business association, partnership, corporation or other legal entity. 1. "Lot" means a parcel of land occupied or intended for occupancy by one main building together with its accessory buildings and which may include more than one platted lot. 2. "Front lot line" means the front boundary line of a lot bordering on the street and, in the case of a corner lot, may be either frontage. 3. "Rear lot line" means the rear boundary line or lines of a lot located opposite its front lot line. 4. "Street" or "highway" means the entire width between the exterior boundary lines of every publicly maintained way or other public or private place adapted and fitted for the use of the public for purposes of vehicular travel. PROOFS Page 383 of 977 5. "Arterial street" means any U.S. or state numbered route, controlled access highway or other major radial or circumferential street or highway designated by the city as part of its major arterial system. 6. "Roadway" means that portion of a street or highway improved, designed, or ordinarily used for vehicular travel or parking, exclusive of the berm or shoulder. 7. "Sidewalk" means that portion of a street between the curbline, or the lateral lines of a roadway, and the adjacent property line paved and intended for the use of pedestrians. 8. "Business day" is any day not a Sunday or a national holiday. 9. "Business district" includes all lots located with an R-0, B-1, B-2 or B-3 district as defined in chapter 38, excepting however, those lots which are occupied solely by one or more dwelling units. 10. "Business hours" are the hours between 9:00 a.m. and 5:00 p.m. on any business day. 11. "Director" is the director of public services (works) or the director's duly designated and acting representative. __ The "city" is the city of Bozeman. (Code 1982, § 12.24.010; Ord. No. 1171, § 1, 1985) Sec. 34.06.020. Snow and ice to be removed from sidewalks. A. Every owner of land within the city fronting or abutting on a paved sidewalk shall remove and clear away, or cause to be removed and cleared away, any snow and ice from that portion of the sidewalk in front of or abutting the building or lot of land. 1. A double frontage lot that has a sidewalk which fronts on or abuts an arterial street as well as a sidewalk which fronts on or abuts another street on the direct opposite lot line shall not be required to remove snow on the arterial street sidewalk.250Sidewalks which front on or abut both the rear lot line of a lot and an arterial street shall be excepted from this chapter. 2. Except as provided in subsection B of this section and regardless of the manner in which the snow or ice is deposited on sidewalks, all snow and ice shall be removed from sidewalks in all business districts within the city by 9:00 a.m. of the next business day, by 12:00 noon of the next non-business day or within four business hours after any snow or ice deposit, whichever period is shorter. 3. Except as provided in subsection B of this section and regardless of the manner in which the snow and ice are deposited, all snow and ice shall be removed from all other sidewalks within the city within the first 24 hours after any snow or ice deposit. B. However, in the event the director of public services determines the snow and ice on a sidewalk cannot be reasonably removed, the director may require the use of sand or other suitable substance to make pedestrian travel reasonably safe. This request will be complied with within the time set forth in subsection A of this section. In that event, however, the sidewalk will be thoroughly cleaned as soon as the weather permits. (Code 1982, § 12.24.020; Ord. No. 1171, § 1, 1985; Ord. No. 1529, § 1, 2000) 250 Note change requested by city staff. PROOFS Page 384 of 977 Sec. 34.06.030. Depositing of snow and ice restricted. No person shall deposit or cause to be deposited any accumulation of snow or ice on or against a fire hydrant or on any sidewalk, roadway, curb or gutter, any loading and unloading area of a public transportation system or any area designated for use by emergency vehicles for access. (Code 1982, § 12.24.030; Ord. No. 1171, § 1, 1985) Sec. 34.06.040. Violations; civil penalty and collection. A. Should any person fail to clear away or treat with abrasives and subsequently clear away any snow and ice from any sidewalk as required, the director may, as soon as practicable after such failure, have the sidewalks cleared. B. The director shall record the name of the property owner, the legal description and street address of the lot, the exact dates and costs of all snow removal done in accordance with this section including but not limited to the costs of private contractors hired for such purpose, and administrative costs. C. Each person who fails to clear the sidewalk as required herein and thus requires the city to perform the work in accordance with this section shall be liable to the city for the cost of such work plus a civil penalty of $30.00 or 20 percent of such costs, whichever is greater. D. The director or a designated representative shall give the property owner written notice of the amount owed to the city as soon as practicable following the completion of the work. The payment of such amount may be enforced through suit for collection or by levying an assessment on the premises or both. E. In the event of assessment, the city commission shall annually adopt a resolution levying an assessment and tax against each lot or parcel of land fronting or abutting on the sidewalks ordered cleared by the director in accordance with the provisions of this article. All assessments levied shall be charged simple interest at the rate of ten percent per year from the date the work is performed until the assessment is fully paid and satisfied. (Code 1982, § 12.24.040; Ord. No. 1171, § 1, 1985; Ord. No. 1529, § 2, 2000) Sec. 34.06.050. Appeals. The director of public services shall develop a program allowing all landowners assessed in accordance with this article to appeal the assessment. Property owners wishing to appeal the assessment will submit their appeal to the director of public services or a designated representative within 30 days of the date of the first notice required in section 34.06.040.D or five working days prior to the city commission meeting at which the assessment is being considered, whichever is sooner. (Code 1982, § 12.24.045; Ord. No. 1529, § 3, 2000) 12.24.050. Criminal penalties251. Any person who violates any provision of this chapter shall be deemed guilty of a misdemeanor and upon conviction shall be fined in an amount of not more than five hundred dollars or be imprisoned in the county jail for a term not to exceed six months, or both. Each day such violation is committed or permitted to continue shall constitute a separate offense and shall be punishable as such. (Code 1982, § 12.24.050; Ord. No. 1529 § 4, 2000: Ord. No. 1171 § 1, 1985) 251 This section is covered by the general penalty. Delete. PROOFS Page 385 of 977 Sec. 34.06.060. Legislative intent. It is the intent of the city commission that the criminal offenses listed in this article be offenses involving absolute liability. Those offenses shall not require proof of any one of the mental states described in MCA 45-2-101(33), (37), and (58). (Code 1982, § 12.24.060; Ord. No. 1171, § 1, 1985) ARTICLE 7. ADVERTISEMENT SPACE ON MUNICIPAL PROPERTY Sec. 34.07.010. Legislative findings. A. The city commission finds that: 1. The selling of advertisement space on municipal vehicles, equipment, solid waste containers, and other property will bring in needed revenue and will assist in relieving the tax burden of the city's citizens. 2. The city has and will continue to have vehicles, equipment, solid waste containers, and other property suitable for advertisement space. 3. It is appropriate to sell advertisement space from time to time on specific municipal property. 4. The vehicles, equipment, solid waste containers, and other property to be used for advertisement space are not public forums and therefore all advertisement will be commercial in nature. 5. Limiting advertisement only to certain commercial advertisement: a. Maintains a position of neutrality on political and religious issues; b. Protects municipal property from vandalism and destruction; c. Prevents a reduction of income that occurs when political and religious messages are utilized; and d. Prevents the violation of the establishment clause. 6. Entering into agreements to manage advertising programs on certain city property is in the best interest of the city as management of an advertising program by a contracted party will reduce the city's administrative overhead in managing an advertising program. (Ord. No. 1657, § 1(3.28.010), 12-19-2005; Ord. No. 1797, § 1(3.28.010), 11-29-2010) Sec. 34.07.020. Application for individual advertisements. A. Any person seeking to commercially advertise on city property other than under section 34.07.030 must submit an application with the proposed advertisement to the city manager for approval to ensure compliance with this chapter, and must enter into an agreement acceptable to the city. The term of the agreement shall not exceed 180 days. B. The application must contain a full advertising graphic design in sufficient detail to determine content and final general appearance, including the scaled location of the advertisement on the subject property. C. The city manager shall reject an application: 1. That is incomplete; 2. That does not comply with the standards set forth in section 34.07.040; or 3. When there are no appropriate advertising spaces available. PROOFS Page 386 of 977 (Ord. No. 1657, § 1(3.28.020), 12-19-2005; Ord. No. 1797, § 1(3.28.020), 11-29-2010) Sec. 34.07.030. Advertising programs; contract authorized. The city commission may authorize the city manager to enter into a contract for a term not to exceed three years for the purpose of administering a program to advertise on city property. Each advertisement installed under an adopted program must comply with the standards in section 34.07.040 and this Code. Each advertisement must be reviewed and approved by a city employee designated in the contract. (Ord. No. 1797, § 2(3.28.030), 11-29-2010) Sec. 34.07.040. Advertising standards. A. The subject matter of all advertisement shall be limited to speech that proposes a commercial transaction. B. Prohibited advertising copy and graphics. 1. Advertisement that is unlawful or relates to illegal activity. 2. Advertisement that is obscene or would be in violation of MCA 45-8-206 (public display or dissemination of obscene material to minors). 3. Advertising of alcohol or tobacco products. 4. Advertising of commercial advertisements by political candidates for public office and advertisements concerning ballot issues. 5. Advertising of contraception products or hygiene products of an intimate personal nature. 6. Advertising of products or services with sexual overtones such as escort services, or establishments featuring X-rated or pornographic movies or products. 7. Advertisement that depicts violence and/or anti-social behavior. 8. Advertisement that is false, misleading, or deceptive. 9. Advertisement using threatening, obscene, profane, vulgar, or abusive language. 10. Advertisement that holds up individuals or groups of people to public ridicule, derision, or embarrassment. 11. Advertisement that supports or opposes a candidate, issue, or cause, or which advocates or opposes a religion, denomination, religious creed, tenet, or belief. 12. Advertisements may not be placed on park or trail benches or picnic tables that currently contain "In Memoriam" plaques. 13. No advertisements shall be placed on the exterior of any city-owned structures. 14. Advertisements that portray or depict any activities, products, or services related to medical marijuana. C. The applicant and the business or person represented by the applicant must be in compliance with all city ordinances and laws. (Ord. No. 1657, § 1(3.28.030), 12-19-2005; Ord. No. 1797, § 1(3.28.040), 11-29-2010) Sec. 34.07.050. Exemption from Uniform Development Code sign provisions. Any advertisement installed under this article is exempt from complying with the sign provisions of chapter 38. (Ord. No. 1657, § 1(3.28.040), 12-19-2005; Ord. No. 1797, § 1(3.28.050), 11-29-2010) PROOFS Page 387 of 977 ARTICLE 8. PARADES AND PUBLIC ASSEMBLIES Sec. 34.08.010. Purpose and intent. The city recognizes and supports the public’s right of assembly and free speech and use of designated public facilities for such purposes. At the same time, the city has an important and compelling governmental interest in protecting property, public safety, health, and welfare, and controlling the use of streets and other public facilities and venues. This article seeks to accommodate public rights of speech and assembly consistent with that governmental interest by establishing procedures, terms, and conditions for use of public areas and facilities for such purposes. A second purpose of this article is to facilitate and manage the manner in which public facilities that are not otherwise required for governmental operations may be made available for use on a temporary basis for non-governmental operations. (Ord. No. 1798, § 2(12.32.010), 4-25-2011) Sec. 34.08.020. Scope; authority. This article applies to all public parades and assemblies that may be expected to affect the public, the property or services of the city, or otherwise require an expenditure of time and expense or create the potential for liability or public disturbance or other substantial concern. This article also applies to requests for the use of public facilities for purposes other than governmental operations, except as provided in chapter 26, article 2. (Ord. No. 1798, § 3(12.32.020), 4-25-2011) Sec. 34.08.010 34.08.030. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. “Aggrieved person” means a person who can demonstrate a specific, personal and legal interest in the final decision of an application for a permit issued under this article, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal. 2. “Certified traffic control person” means a person who has completed a course or program of training for regulating the flow of traffic upon a street, which has been approved by the chief of police, the state department of transportation, or the city streets superintendent. 3. "Parade" means any march, demonstration, procession or motorcade consisting of persons, animals, bicycles, runners/joggers/walkers or vehicles or a combination thereof upon the streets, or other public facilities within the city with an intent of attracting public attention that affects or may reasonably be expected to affect the normal flow or regulation of traffic upon the streets, or other public facilities. 4. "Permit" means permission for assembly, parade, or use of public facilities issued pursuant to this article. 5. "Public assembly" means any meeting, march, demonstration, picket line, rally or gathering of 75 or more persons for a common purpose as a result of prior planning that affects or may reasonably be expected to affect the normal flow or regulation of pedestrian or vehicular traffic upon the streets or other public facility, other than a park or recreational building or facility, as defined in chapter 26, article 2. 6. “Public facility” means a building, structure, place or other location or area which a PROOFS Page 388 of 977 person may seek to utilize for purposes other than the normal and usual governmental operations of the city, but excludes a public park and recreational facilities, as the public assembly and use of all parks and recreational facilities are regulated under chapter 26, article 2. 7. "Sidewalk" means any area or way set aside or open to the general public for purposes of pedestrian traffic, whether or not it is paved. 8. "Street" means any place or way set aside or open to the general public for purposes of vehicular traffic, including any berm or shoulder parkway, right-of-way, or median strip thereof. (Code 1982, § 12.32.010; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 4(12.32.030), 4-25-2011) Sec. 34.08.020 040. Administration; permit required. A. This article shall be administered by the city manager. B. Except as provided in this article, no person shall engage in or conduct any parade or public assembly or use any public facility, including public rights-of-way, for purposes other than governmental operations unless a person has a current and valid permit therefor issued in accordance with this article. (Code 1982, § 12.32.020; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 5(12.32.040), 4-25-2011) Sec. 34.08.030 050. Exceptions. A. This article shall not apply to the following: 1. Funeral processions. 2. Students going to and from school classes or participating in educational activities, provided that such conduct is under the immediate direction and supervision of the proper school authorities. 3. A governmental agency acting within the scope of its function. 4. Spontaneous events resulting in a public assembly occasioned by news or affairs coming into public knowledge within three days of such public assembly, provided that the organizer thereof gives written notice to the city at least 24 hours prior to such public assembly or other such notice as may be reasonable under the circumstances. 5. The reserved use of parks or other recreational buildings and facilities. Parks and recreational buildings and facilities are regulated under chapter 26, article 2. B. Exceptions and waivers from requirements for payment of fees and expenses, proof of insurance, or other security may be approved solely in accordance with applicable sections of this article. (Code 1982, § 12.32.030; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 6(12.32.050), 4-25-2011) Sec. 34.08.060. Parades and public assemblies open to public/private for-profit activities. A. Public assembly and parade events must be free and open to the general public. An organizer, permittee, or participant in an event authorized under this article shall not restrict the general public from access to sidewalks, businesses and residences. B. Parades or public assembly permits that seek to utilize public facilities where the primary purpose of the event is to advertise or promote any products, goods, or services, or an event that is primarily for private profit-making purposes may be approved only if: 1. The public facility requested is not otherwise required for use for public purposes. PROOFS Page 389 of 977 2. All costs to the city, direct and indirect, are reimbursed in full by the sponsor of the event. 3. The application satisfies all requirements of this article. C. The only signs permissible on city property during a parade or public assembly conducted primarily for private for-profit purposes are signs which identify organizations or sponsors furnishing or sponsoring exhibits or structures used in a parade or assembly. D. Participant fees may be charged, if so noted on the application and approved by the city manager. (Ord. No. 1798, § 7(12.32.060), 4-25-2011) Sec. 34.08.070. Requirements for insurance, indemnification, bonding or other security. A. To avoid interference with protected rights of speech and assembly, any requirement imposed for surety for performance (including but not limited to insurance, indemnification, bonding, or monetary deposits) shall be based upon needs directly associated with the event and not on the basis of possible disruption of the event by protestors or other persons who might be opposed to the speech or assembly. Such restriction, however, shall not apply where the city manager determines that the event is being scheduled so as to unduly and unnecessarily create a potential for counter-protest or disruption or interference with public health, safety, welfare, or order. B. A permittee under this article shall obtain commercial general liability insurance covering the permittee and/or the permittee’s organization for all activities related to the parade and/or public assembly, including but not limited to setup, the public assembly or parade itself, and all cleanup and takedown activities. The insurance policy shall contain no exceptions or exclusions for activities conducted under or related to the permitted activities. The permittee shall name the city, its officers, and employees as additional insureds on a primary non-contributory basis. The additional insured coverage shall be in a form acceptable to the city. To the extent reasonably possible, such additional insured coverage shall be in the minimum amounts of $750,000.00 per claimant and $1,500,000.00 per occurrence. C. The insurance requirements of this section are in addition to and separate from any other obligations contained in this section or article or in a permit issued under this article. D. Any liability insurance requirements for residential block parties shall be governed by section 34.08.100, pertaining to residential block parties. E. Applicants for a permit under this article shall agree in writing to defend, hold the city and its employees and officials harmless and indemnify the city, its employees and officials for any and all claims, lawsuits or liability including attorneys' fees and costs allegedly arising out of loss, damage or injury to a person or a person's property occurring during the course of, in preparation of, or in any way pertaining to the parade or public assembly which are caused by the conduct of employees or agents of the permit holder. F. The city manager may grant a waiver to the requirements of this section for city- sponsored events or when the city manager determines the parade or public assembly does not present a substantial or significant public liability or property damage exposure for the city, its officers, agents and employees. The city manager shall consider the applicant’s proven financial inability to obtain the required coverage. When the city manager considers requests for waivers, the city manager shall base the decision on the factual circumstances presented by the applicant and decide the specific request on its merits. (Code 1982, § 12.32.070; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 8(12.32.070), 4-25-2011) PROOFS Page 390 of 977 Sec. 34.08.040 080. Application. A. A person seeking a parade or public assembly permit shall file an application with the city manager on forms provided by the city, and the application shall be signed by the applicant. B. For single, nonrecurring parades or public assemblies, an application for a permit shall be filed with the city manager at least 15 working days and not more than 180 days before the parade or public assembly is proposed to commence. The city manager may waive the minimum filing period and accept an application filed within a shorter period if, after due consideration of the date, time, place, and nature of the parade or public assembly, the anticipated number of participants, and the city services required in connection with the event, the city manager determines that the waiver will not present a hazard to public safety, or if the required timeframe would substantially burden protected rights, including speech and assembly, as to matters of public concern, and the expedited review process would allow reasonable review to address substantial matters of public safety, welfare, and convenience. C. For parades or public assemblies held on a regular or recurring basis at the same location, an application for a permit covering all such parades or assemblies during that calendar year may receive approval of all recurring events within that calendar year on one application, but a separate application fee for each occurrence must be paid. These applications shall be filed with the city manager at least 60 days and not more than 180 days before the date and time at which the first such parade or public assembly is proposed to commence. The city manager may waive the minimum 60-day period after due consideration of the factors specified in subsection B of this section. D. The application for a parade or public assembly permit shall be made on a form provided by the city and shall include all information deemed relevant to the requested event. E. If an application for a permit is denied, the city assumes no liability for expenses incurred by the applicant. (Code 1982, § 12.32.040; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 9(12.32.080), 4-25-2011) Sec. 34.08.090. Traffic control plan/city equipment. A. Applications for parades, public assemblies, residential block parties, fun runs and other similar events that include a street closure must provide a complete traffic control plan that complies with the Manual on Uniform Traffic Control Devices. Permittees of events requiring a traffic control plan must ensure requirements of the traffic control and barricade plan are met. Automobiles, trucks or other large, heavy objects are not acceptable barricades. Barricades in place at night must have lights. This plan shall include a map or sketch of the route, identify individuals who will be present at intersections, including their affiliation and proof of traffic control certification, if applicable, types of personal safety equipment, and types of barricades. If a street is not closed, but traffic will be stopped for participants to cross, certified traffic control persons must be used. B. The requirement in subsection A of this section may be waived by the city manager if it is determined that the closure can safely be done by the organizer using approved barricades/signage. At the discretion of the city manager, barricades and signage may be obtained from the city streets division only upon submittal of a deposit in an amount to be established by the city manager. The applicant shall pay for any signage and barricades that are damaged or not returned to the city streets division. If signage and barricades are not available from the city streets division, the permittee must obtain them from a private sign company. C. The requirement in subsection A of this section may be waived by the city manager if it is determined the closure will be done by the city streets division, with or without a fee for the PROOFS Page 391 of 977 service. (Ord. No. 1798, § 11(12.32.090), 4-25-2011) Sec. 34.08.100. Temporary closures for residential block parties. A. Residential block parties may be permitted by the city manager pursuant to the criteria in section 34.08.140 at residential locations not involving closure of any arterial or collector streets and only during the hours between 8:00 a.m. and 9:00 p.m. subject to the following conditions: 1. The applicant shall contact in writing all abutting or adjacent property owners and residents (if a property is not owner-occupied) within the area to be closed as well as the property owners on the corner lots immediately across the intersection on the opposite side of the street closure. The applicant shall provide written documentation to the city manager at the time of application indicating each of the above-described property owners/residents consent to or oppose the application. 2. The applicant must have an approved traffic control plan in accordance with section 34.08.090 and shall be solely physically and financially responsible for obtaining, placing and removing any required barricades or traffic control devices. 3. The applicant to the extent reasonably possible shall provide liability insurance protecting themselves as well as naming the city, its officers and employees, as additional insureds. 4. The applicant and participants shall comply with any conditions imposed on the permit. 5. Applicants for a permit under this article shall agree in writing to defend, hold the city and its employees and officials harmless and indemnify the city pursuant to section 34.08.070.E. (Ord. No. 1798, § 12(12.32.100), 4-25-2011) Sec. 34.08.050 110. Fees/cost recovery. A. A nonrefundable fee shall be paid to the city at the time of application to cover administrative costs of processing permits. All fees under this article shall be set by resolution of the commission. If the city manager requires a deposit for the parade or public assembly the city manager shall establish standards for return and forfeit. B. If the application is for the use of any city property, or if any city services shall be required for the parade or public assembly, the applicant shall pay, prior to the issuance of a permit, the costs for those services in accordance with a schedule of service costs approved by the commission by resolution, or assessed by the city manager as authorized under this article. C. If a permittee fails to pay costs or take actions required under this article, the city, after requesting the permittee for payment, may draw upon any deposit provided under subsection A of this section or may seek to recover such costs from the permittee or other responsible person by appropriate legal action. If the city prevails in any such action for recovery, it shall be entitled to reimbursement of any costs incurred in seeking such recovery, including court costs and attorneys’ fees. Cost recovery from permittees and participants shall be focused upon the conduct of the permittees and authorized participants and not on conduct of observers or others over whom permittee cannot reasonably be expected to exercise control. (Code 1982, § 12.32.050; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 13(12.32.120), 4-25-2011) Sec. 34.08.060 120. Police protection; public services and other expenses. A. Police protection. PROOFS Page 392 of 977 1. If possible, without disruption of ordinary police services or compromise of public safety and welfare, regularly scheduled on-duty police personnel shall police the event. 2. The city manager, with advice from the chief of police, shall determine whether and to what extent additional police protection is reasonably necessary for the parade or public assembly for traffic control and public safety and welfare, including public convenience. The city manager shall base a decision regarding required police protection on relevant criteria including, but not limited to, the size, location, duration, time and date of the event, the expected sale or service of alcoholic beverages, the number of streets and intersections blocked, and the need to detour or preempt citizen travel and use of the streets and sidewalks. 3. The speech content of the event shall not be a factor in determining the amount of police protection necessary, except when the applicant’s speech is determined to have reasonable potential to cause, or will have the result of causing, public alarm, disruption, falsehood, or which will constitute any form of expression that is not protected under the laws or constitution of Montana or the United States. 4. If additional police protection for the public assembly is deemed necessary by the city manager, the city manager shall so inform the applicant for the permit. The applicant then shall have the duty to secure the police protection deemed necessary by the city manager at the sole expense of the applicant. B. Public services. The city manager shall determine if the applicant shall be required to pay for or provide additional public services-related actions such as lighting, refuse receptacles and pickup, traffic control signs, devices or personnel. C. Other expenses. In circumstances where the event itself may be expected to cause the city to incur additional, extraordinary expenses, the city manager shall identify such expenses and the basis for determining them to be extraordinary. Such expenses may be imposed upon the applicant as a condition of approval of the permit. D. Exception. 252Persons engaging in parades or public assemblies conducted for the sole purpose of public issue speech protected under the First Amendment are not required to pay for any police protection or public services or other expenses provided by the city. (Code 1982, § 12.32.060; Ord. No. 1458, § 1, 1998; Ord. No. 1537, §§ 24, 25, 5-29-2001; Ord. No. 1640, § 9, 6- 6-2005; Ord. No. 1798, § 14(12.32.130), 4-25-2011) Sec. 34.08.130. Public hearing. A. At any time during consideration of an application, the city manager may determine it is necessary to conduct a public hearing to the extent possible on the application to determine the nature of public concerns with the proposed event and whether such concerns should require denial of the application or imposition of conditions. The public hearing shall be limited to concerns that are unrelated to content of speech or purposes of the assembly or event except to the extent that concerns address matters such as those specified as appropriate for consideration in this article. B. A public hearing, if held, shall be scheduled to allow action on the application within the timeframes established under this article. If a hearing cannot be scheduled within the timeframes established by this article, the city manager may suspend such timeframes only for the time necessary to allow for scheduling, noticing, and conducting of a public hearing. The city 252 Was this subsection intended to be repealed by Ord. No. 1640? No. Keep. PROOFS Page 393 of 977 manager shall provide notice of the hearing to the applicant and the public by normal posting/publication requirements and such additional notice to potentially affected persons as is reasonably determined to be appropriate. (Code 1982, § 12.32.140; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 15(12.32.140), 4-25-2011) Sec. 34.08.080 140. Standards for issuance. A. Each application shall be reviewed on a case-by-case basis. This article seeks to impose reasonable time, place and manner controls in an appropriate and limited manner upon events and facility uses for which permits are required. This article shall be administered in a manner that seeks to allow for expression, assembly, and the exercise of religious rights in accordance with applicable constitutional and statutory limits and controls. 1. The city manager shall issue a permit, subject to any conditions deemed necessary and reasonable, as provided for herein when, from consideration of the application and such other information as may otherwise be obtained, the city manager finds: a. The application is complete and sets forth accurately and in sufficient detail the information required for consideration. b. The conduct of the parade or public assembly will not unduly inconvenience either the public in using public areas normally open for general public use or the city in the conduct of governmental operations; c. The conduct of the parade or public assembly will not substantially interrupt the safe and orderly movement of other pedestrian or vehicular traffic in the vicinity of its route or location; d. The possibility of the event causing any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety of reasonable persons of ordinary sensitivity, pursuant to chapter 16, article 6; e. The conduct of the parade or public assembly will not require the diversion of so great a number of city police officers to properly police the line of movement and the areas contiguous thereto as to prevent normal police protection of the city; f. The concentration of persons, animals, and vehicles at public assembly points of the parade or public assembly will not unduly interfere with proper fire and police protection of, or ambulance service to, areas contiguous to such public assembly areas; g. The conduct of the parade or public assembly is not reasonably likely to cause injury to persons or property; h. The parade or public assembly is scheduled to move from its point of origin to its point of termination expeditiously and without unreasonable delays en route; i. Adequate sanitation and other required health facilities are or will be made available in or adjacent to any public assembly areas; j. There are sufficient parking places near the site of the parade or public assembly to accommodate the number of vehicles reasonably expected; k. The applicant has secured the police protection, or otherwise arranged for event security if required pursuant to section 34.08.120; l. The applicant has paid or provided for payment of any expenses or costs as may be required under the provisions of this article. PROOFS Page 394 of 977 m. Except as the city manager may determine pursuant to section 34.08.060, such parade or public assembly is not for the primary purpose of advertising any product, goods, or event that is primarily for private profit, and the parade or public assembly itself is not primarily for profit. The prohibition against advertising any product, goods or event shall not apply to the signs identifying organizations or sponsors furnishing or sponsoring exhibits or structures used in the parade; n. No parade or public assembly permit application for the same time and general location is already granted or has been received and will be granted; o. A parade or public assembly permit application for the same time but for a different location is already granted or has been received and will be granted, and the police resources or other public services required for that prior parade or public assembly are so great that, in combination with the subsequent proposed application, the resulting deployment of police or other public services would have an immediate and adverse effect upon the welfare and safety of persons and property; p. The conduct of a past parade or public assembly for the same purpose or by the same organizer/organization was acceptable; q. The event has no significant financial impact on city resources for events scheduled on holidays and weekends; r. The number of hours a street is requested to be closed will not significantly affect vehicular and pedestrian access to commercial and residential properties; s. A new event that requests the closure of a collector and/or arterial street(s) would benefit more than just a limited number of individuals; t. A street closure is necessary for the safety of the event participants, rather than just for the convenience of the event; and u. For events which seek the closure of any portion of Main Street, the applicant must demonstrate a nexus between the event and the need for use of Main Street as opposed to use of another location. 2. An event may be limited as to the number of participants in the interest of safety, health, public order, and adequacy of facilities and security by order of the city manager, chief of police or fire chief. 3. No permit shall be granted that allows for the erection or placement of any structure, whether permanent or temporary, on a city street, sidewalk, or right-of- way unless advance approval for the erection or placement of the structure is obtained from the city manager. (Code 1982, § 12.32.080; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 16(12.32.150), 4-25-2011) Sec. 34.08.150. Action on application. A. Within five working days upon receiving an application, the city manager shall determine if the application is complete or if any additional preliminary information is required. An incomplete or insufficient application suspends the review times provided in this section until the information requested is provided to the city. If additional information is required, the city manager shall so inform the applicant, and the applicant shall provide such required information prior to further consideration of the application. The requirement to supplement the application at this stage does not prevent the city from requiring additional information during its review and PROOFS Page 395 of 977 action on the application. B. After accepting an application as complete, the city manager shall forward it for review and recommendation to the chief of police, streets division, any other municipal employee, official, or board deemed appropriate. The application shall also be referred to the state department of transportation and the county road superintendent if the event could affect the state or county transportation system. Applications for events in the downtown area shall also be forwarded to the Downtown Bozeman Association. Such review and recommendation shall occur within five business days unless that period is extended by the city manager. C. After receiving comments and recommendations from the reviewing agencies and after considering such other information as deemed appropriate, the city manager may require the applicant to submit additional information or respond to the reviews and recommendations or impose such conditions as are appropriate under the circumstances. D. If the city manager determines an event has the potential of adversely affecting the public or a substantial number of persons, the city manager may determine that a public hearing is required, in which case section 34.08.130 shall apply. In such a case, the timelines for review as established in this section shall be suspended until completion of the public hearing. E. Upon completion of the foregoing, the city manager shall act on the application. The city manager may approve, amend, approve with conditions or deny the application. For any action other than approval as submitted, the city manager shall include a brief summary of the reasons for the decision. G. Unless otherwise provided in this article or agreed to by the applicant, the city manager shall act on an application within 15 working days after determining that the application is complete. (Ord. No. 1798, § 17(12.32.160), 4-25-2011) Sec. 34.08.110 160. Alternative permit. A. The city manager, in denying an application for a parade or public assembly permit, may authorize the conduct of the parade or public assembly at a date, time, location, or route different from that named by the applicant. An applicant desiring to accept an alternate permit shall, within five days after notice of the action of the city manager, file a written notice of acceptance with the city manager. B. An alternate parade or public assembly permit shall conform to the requirements of, and shall have the effect of, a parade or public assembly permit issued under this article. (Code 1982, § 12.32.110; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 18(12.32.170), 4-25-2011) Sec. 34.08.090 170. Nondiscrimination253. A. The city manager shall uniformly consider each application upon its merits and shall not discriminate in granting or denying permits under this article based upon political, religious, ethnic, race, disability, sexual orientation or gender-related grounds or other criteria that would constitute a violation of state or federal law. B. To achieve the purposes of this article without undue interference with protected rights of speech and assembly, decisions to issue, deny, or conditionally approve permits shall not be based on the content of a message associated with the event absent a compelling governmental interest. Notwithstanding that general standard, protections otherwise applicable to speech and assembly are limited and may not extend to speech or assembly that is intended to or has the 253 Note change requested by city staff. PROOFS Page 396 of 977 result of causing public alarm, disruption, falsehood, or other form of expression that is not protected under the laws or constitution of Montana or the United States. (Code 1982, § 12.32.090; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 19(12.32.180), 4-25-2011) Sec. 34.08.100 180. Notice of decision on application. The city manager shall act promptly upon a timely filed application for a parade or public assembly permit, but in no event shall grant or deny a permit less than 48 hours prior to the event. If the city manager disapproves, approves with conditions, or otherwise modifies the application, the city manager shall notify the applicant of the decision either by personal delivery or regular or electronic mail at least 48 hours prior to the event and state the reasons for such action. (Code 1982, § 12.32.100; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 20(12.32.190), 4-25-2011) Sec. 34.08.120 190. Appeal procedure. A. An aggrieved person shall have the right to appeal the city manager’s decision on a parade or public assembly permit to the commission. Prior to filing of an appeal with the commission, the appellant shall, within five business days of the city manager’s decision, request the city manager reconsider the decision. The city manager shall have five days to issue a decision on the request to reconsider. B. An aggrieved person may, only after complying with subsection A of this section, file a written appeal with the commission through the city clerk with a copy to the city manager not later than five days after the city manager’s decision on the request for reconsideration. The appeal shall state with specificity the grounds for the appeal. 1. The commission shall hear the appeal at the next regularly scheduled meeting following the accepted notice of appeal, provided that the receipt of the notice is received prior to the deadline for submission of new agenda items. a. The appeal hearing shall be limited to the grounds stated in the appeal unless the commission for good cause determines to hear other issues or concerns. b. The appellant, applicant (if not the appellant), the city manager and other persons directly affected may speak or submit evidence at the hearing. Public comment will be accepted. c. The commission shall make a determination on the appeal at the meeting, unless the applicant agrees to a continuance. The city clerk shall issue the commission’s decision in writing to the applicant either by personal delivery, or regular or electronic mail. (Code 1982, § 12.32.120; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 21(12.32.200), 4-25-2011) Sec. 34.08.130 200. Notice to city and other officials. A. Immediately upon issuance of a parade or public assembly permit, the city manager shall send a copy thereof to the following: 1. The mayor; 2. The city attorney; 3. The director of fire operations fire chief; PROOFS Page 397 of 977 4. The director of public services street superintendent;254 5. The director of patrol chief of police; and 6. Any other entity determined by the city manager to be affected by the permit. (Code 1982, § 12.32.130; Ord. No. 1458, § 1, 1998; Ord. No. 1537, § 26, 5-29-2001; Ord. No. 1798, § 22(12.32.210), 4-25-2011) Sec. 34.08.150 210. Duties of permittee. A. A permittee hereunder shall comply with all requirements of this article, permit directions and conditions and with all applicable laws and ordinances in effect at the time of the event. B. The parade or public assembly chair or other person heading such activity shall carry the parade or public assembly permit upon the chair's person during the conduct of the parade or public assembly. C. The permittee or parade or public assembly chair or other person heading such activity shall notify all parade or public assembly participants of the conditions of this article. (Code 1982, § 12.32.150; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 23(12.32.220), 4-25-2011) Sec. 34.08.160 220. Prohibitions. A. In addition to any other prohibitions set forth in this article, the following prohibitions shall apply to all permits for parades and public assemblies: 1. It is unlawful for any person to stage, present, or conduct any parade or public assembly for which a permit is required without first having obtained a permit as herein provided. 2. It is unlawful for any person to participate in a parade or public assembly for which a permit is required if the person knows a permit has not been granted. 3. It is unlawful for any person in charge of, or responsible for the conduct of, a duly licensed parade or public assembly to knowingly fail to comply with any condition of the permit. 4. It is unlawful for any person to engage in any parade or public assembly activity that would constitute a substantial hazard to the public safety or that would materially interfere with or endanger the public peace or rights of residents to the quiet and peaceful enjoyment of their property. 5. It is unlawful for any person to carry any sign, poster, plaque, or notice, unless such sign, poster, plaque, or notice is constructed or made of a cloth, paper, or cardboard material. 6. It is unlawful for any person participating in a parade or public assembly to utilize sound amplification equipment at decibel levels that exceed those limits imposed by this Code. 7. It is unlawful for any person to ride, drive, or cause to be ridden or driven any animal or any animal-drawn vehicle upon any public street, unless specifically authorized by the permit. 8. It is unlawful for any person in a parade or public assembly to deviate from the approved parade route. 254 Is this the correct title? Yes. PROOFS Page 398 of 977 9. No parade participant shall throw, cast, or drop candy, trinkets, or any other articles from a moving vehicle. This provision does not prohibit a parade participant from providing candy or other articles directly to the spectators, provided the participant is walking. 10. It is unlawful for any person to engage in public drinking, public display, or exhibition of open alcoholic beverages (open container) during parades and public assemblies unless an open container waiver has been granted pursuant to chapter 4, article 4. (Code 1982, § 12.32.160; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 24(12.32.230), 4-25-2011) Sec. 34.08.170 230. Public conduct during parades or public assemblies. A. No person shall unreasonably hamper, obstruct or impede, or interfere with any parade or public assembly or with any person, vehicle or animal participating or used in a parade or public assembly. B. No driver of a vehicle shall drive between the vehicles or persons comprising a parade or public assembly when such vehicles or persons are in motion and are conspicuously designated as a parade or public assembly. C. No person shall advance toward or go between the vehicles comprising a parade or public assembly when such vehicles are in motion and are conspicuously designated as a parade or public assembly. D. The city manager shall have the authority, when reasonably necessary, to prohibit or restrict the parking of vehicles along a street constituting a part of the route of a parade or public assembly. The city manager may require the applicant to post signs to that effect, and, if so, it shall be unlawful for any person to park or leave unattended any vehicle in violation thereof. No person shall be liable for parking on a street that was not posted in accordance with this section. (Code 1982, § 12.32.170; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 25(12.32.240), 4-25-2011) Sec. 34.08.180 240. Revocation of permit. A. The city manager, the chief of police, and the fire chief shall each have the independent authority to revoke or suspend a parade or public assembly permit instantly: 1. Upon a violation of the conditions imposed in the permit; 2. Upon violation of this article; or 3. When a public emergency arises where the municipal resources required for that emergency are so great that deployment of municipal personnel, equipment or services for the parade or public assembly would have an immediate and adverse effect upon the welfare and safety of persons or property. B. Such revocation shall take effect immediately, and the city manager, chief of police or fire chief shall promptly notify the permittee of revocation. After revocation, the permittee may not conduct the event, or if the event has commenced, shall immediately cause the event to be terminated in a safe, proper manner. (Code 1982, § 12.32.180; Ord. No. 1458, § 1, 1998; Ord. No. 1798, § 26(12.32.250), 4-25-2011) Sec. 34.08.250. Enforcement. This article may be enforced by the city manager, the fire chief, or the police chief. In addition, this article may be enforced by injunction, restraining order, declaratory relief, or such other order as may be imposed by a court with appropriate jurisdiction. (Ord. No. 1798, § 27(12.32.260), 4-25-2011) PROOFS Page 399 of 977 Sec. 34.08.260. Judicial review. After complying with the requirements of section 34.08.190, an aggrieved person may file a request for judicial review of a decision by the city commission made pursuant to this article. The request for review shall be filed no later than 30 days after the commission’s action. (Ord. No. 1798, § 28(12.32.270), 4-25-2011) 12.32.190. Penalties255. Any person violating the provisions of any section of this chapter shall be guilty of a misdemeanor and shall, upon conviction, be punished by a fine not to exceed five hundred dollars or by imprisonment for a term not to exceed six months, or by both such fine and imprisonment. (Code 1982, § 12.32.190; Ord. No. 1458, § 1, 1998) 255 This section is covered by the general penalty. Delete. PROOFS Page 400 of 977 Chapter 35 RESERVED PROOFS Page 401 of 977 Chapter 36 TRAFFIC AND VEHICLES*256 *State law reference—Motor vehicles, MCA 61-1-101 et seq. ARTICLE 1. IN GENERAL Sec. 36.01.010. Title for citation. This chapter may be known and cited as the "traffic ordinance." (Code 1982, § 10.04.010) Sec. 36.01.020. Definitions257. A. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. 258"Authorized emergency vehicle" means vehicles of the fire department, police vehicles, and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the director of public safety services. 2. 259"Bicycle" means every device propelled by human power upon which any person may ride, having two tandem wheels either of which is over 20 inches in diameter, and including any device generally recognized as a bicycle though equipped with two front or two rear wheels. 3. 260"Commercial vehicle" means every vehicle designed, used or maintained 256 Note that most references in this chapter to “director of public safety” were changed to “director of public service” at request of city staff. 257 I suggest deleting those definitions covered by state law, and just adopting state law traffic and vehicle definitions by reference. Leave for Phase 2. 258 Compare to definition in MCA 61-8-102: Leave for Phase 2. (a) "Authorized emergency vehicle" means a vehicle of a governmental fire agency organized under Title 7, chapter 33, an ambulance, and an emergency vehicle designated or authorized by the department. 259 Compare to definition in MCA 61-8-102: Leave for Phase 2. (b) "Bicycle" means: (i) a vehicle propelled solely by human power upon which any person may ride and that has two tandem wheels and a seat height of more than 25 inches from the ground when the seat is raised to its highest position, except scooters and similar devices; or (ii) a vehicle equipped with two or three wheels, foot pedals to permit muscular propulsion, and an independent power source providing a maximum of 2 brake horsepower. If a combustion engine is used, the maximum piston or rotor displacement may not exceed 3.05 cubic inches, 50 centimeters, regardless of the number of chambers in the power source. The power source may not be capable of propelling the device, unassisted, at a speed exceeding 30 miles an hour, 48.28 kilometers an hour, on a level surface. The device must be equipped with a power drive system that functions directly or automatically only and does not require clutching or shifting by the operator after the drive system is engaged. 260 Compare to definition in MCA 61-1-101: Leave for Phase 2. (8) (a) "Commercial motor vehicle" means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the vehicle: PROOFS Page 402 of 977 primarily for the transportation of property. 4. "Crosswalk" means: a. That part of a roadway at an intersection included within the connections of the lateral lines of the sidewalks on opposite sides of the highway, measured from the curbs, or in the absence of curbs from the edges of the traversable roadway; b. Any portion of a roadway at an intersection or elsewhere distinctly indicated for pedestrian crossing by lines or other markings on the surface. 5. "Curb loading zone" means a space adjacent to a curb reserved for the exclusive use of vehicles during the loading or unloading of passengers or materials. 6. 261"Driver" or "operator" means every person who drives or is in actual physical control of a vehicle. 7. "Freight curb loading zone" means a space adjacent to a curb for the exclusive use of vehicles during the loading or unloading of freight or passengers. 8. "Intersection" means the area embraced within the prolongation or connections of the lateral curblines, or, if none, then the lateral boundary lines of the roadways of (i) has a gross combination weight rating or a gross combination weight of 26,001 pounds or more, whichever is greater, inclusive of a towed unit with a gross vehicle weight rating of more than 10,000 pounds; (ii) has a gross vehicle weight rating or a gross vehicle weight of 26,001 pounds or more, whichever is greater; (iii) is designed to transport at least 16 passengers, including the driver; (iv) is a school bus; or (v) is of any size and is used in the transportation of hazardous materials as defined in 61-8-801. (b) The following vehicles are not commercial motor vehicles: (i) an authorized emergency service vehicle: (A) equipped with audible and visual signals as required under 61-9-401 and 61-9-402; and (B) entitled to the exemptions granted under 61-8-107; (ii) a vehicle: (A) controlled and operated by a farmer, family member of the farmer, or person employed by the farmer; (B) used to transport farm products, farm machinery, or farm supplies to or from the farm within Montana within 150 miles of the farm or, if there is a reciprocity agreement with a state adjoining Montana, within 150 miles of the farm, including any area within that perimeter that is in the adjoining state; and (C) not used to transport goods for compensation or for hire; or (iii) a vehicle operated for military purposes by active duty military personnel, a member of the military reserves, a member of the national guard on active duty, including personnel on full-time national guard duty, personnel in part-time national guard training, and national guard military technicians, or active duty United States coast guard personnel. (c) For purposes of this subsection (8): (i) "farmer" means a person who operates a farm or who is directly involved in the cultivation of land or crops or the raising of livestock owned by or under the direct control of that person; (ii) "gross combination weight rating" means the value specified by the manufacturer as the loaded weight of a combination or articulated vehicle; (iii) "gross vehicle weight rating" means the value specified by the manufacturer as the loaded weight of a single vehicle; and (iv) "school bus" has the meaning provided in 49 CFR 383.5. 261 Covered by MCA 61-1-101. Leave for Phase 2. PROOFS Page 403 of 977 two highways which join one another at or approximately at right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. 9. 262"Laned roadway" means a roadway which is divided into two or more clearly marked lanes for vehicular traffic. 10. 263"Motorcycle" means every motor vehicle having a saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor. 11. 264"Motor-driven cycle" means every motorcycle, including every motorscooter, with a motor which produces not to exceed five horse-power, and every bicycle with motor attached. 12. 265"Motor vehicle" means every vehicle which is self-propelled, and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. 13. "Official traffic control devices" means all signs, signals, markings and devices not inconsistent with this chapter placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning or guiding traffic. 14. 266"Park," when prohibited, means the standing of a vehicle, whether occupied or not, otherwise than temporarily for the purpose of and while actually engaged in loading or unloading. 15. "Passenger curb loading zone" means a place adjacent to a curb reserved for the exclusive use of vehicles during the loading or unloading of passengers. 262 Covered by MCA 61-8-605. Leave for Phase 2. 263 Compare to MCA 61-1-101: Leave for Phase 2. (36) (a) "Motorcycle" means a motor vehicle that has a seat or saddle for the use of the operator and that is designated to travel on not more than three wheels in contact with the ground. A motorcycle may carry one or more attachments and a seat for the conveyance of a passenger. (b) The term does not include a tractor, a bicycle as defined in 61-8-102, a motorized nonstandard vehicle, or a two- or three-wheeled all-terrain vehicle that is used exclusively on private property. 264 Compare to MCA 61-1-101: Leave for Phase 2. (37) (a) "Motor-driven cycle" means a motorcycle, including a motor scooter, with a motor that produces 5 horsepower or less. (b) The term does not include a bicycle, as defined in 61-8-102, or a motorized nonstandard vehicle. 265 Compare to MCA 61-1-101: Leave for Phase 2. (40) (a) "Motor vehicle" means: (i) a vehicle propelled by its own power and designed or used to transport persons or property upon the highways of the state; and (ii) a quadricycle if it is equipped for use on the highways as prescribed in chapter 9. (b) The term does not include a bicycle as defined in 61-8-102, an electric personal assistive mobility device, a motorized nonstandard vehicle, or a motorized wheelchair or other low- powered, mechanically propelled vehicle that is designed specifically for use by a physically disabled person and that is used as a means of mobility for that person. 266 Covered by MCA 61-4-131. Leave for Phase 2. PROOFS Page 404 of 977 16. "Pedestrian" means any person afoot. __ "Person" means every natural person, firm, copartnership, association or corporation. 17. "Police officer" means every officer of the municipal police department, or any officer authorized to direct or regulate traffic or to make arrests for violations of traffic regulations. 18. "Private road" or "driveway" means every way or place in private ownership and used for vehicular travel by the owner, and those having express or implied permission from the owner, but not by other persons. 19. 267"Railroad" means a carrier of persons or property upon cars, other than streetcars, operated upon stationary rails. 20. 268"Railroad train" means a stream engine, electric, or other motor, with or without cars coupled thereto, operated upon rails, except streetcars. 21. "Right-of-way" means the privilege of the immediate use of the roadway. 22. "Roadway" means that portion of a street or highway improved, designed or ordinarily used for vehicular travel. In the event a highway includes two or more separate roadways, the term "roadway" as used herein shall refer to any such roadway separately, but not to all such roadways collectively. 23. "Sidewalk" means that portion of a street between the curblines or the lateral lines of a roadway and the adjacent property lines, intended for the use of pedestrians. 24. 269"Stop," when required, means complete cessation of movement. 25. 270"Stop," "stopping," or "standing," when prohibited, means any stopping or standing of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or traffic control sign or signal. 26. "Safety zone" means the area or space officially set apart within a roadway for the exclusive use of pedestrians, and which is protected or is so marked or indicated by adequate signs as to be plainly visible at all times while set apart as a safety zone. 27. 271"Street" or "highway" means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel, including avenues and alleys. 28. "Through or arterial highway" means every street or highway, or portion thereof, at the entrances to which vehicular traffic from intersecting streets or highways is required by law to stop before entering or crossing the same, and when stop signs are erected as provided in this chapter. 267 Covered by MCA 61-1-101. Leave for Phase 2. 268 Covered by MCA 61-1-101. Leave for Phase 2. 269 Covered by MCA 61-1-101. Leave for Phase 2. 270 Covered by MCA 61-1-101. Leave for Phase 2. 271 Compare to MCA 61-1-101: Leave for Phase 2. (70) "Street" means the entire width between the boundary lines of every publicly maintained way when any part of the publicly maintained way is open to the use of the public for purposes of vehicular travel. PROOFS Page 405 of 977 29. 272"Traffic" means pedestrians, ridden or herded animals, vehicles and other conveyances, either singly or together, while using any street for purposes of travel. 30. "Traffic control signal" means any device, whether manually, electrically or mechanically operated, by which traffic is alternately directed to stop and to proceed. 31. "Traffic division" means the traffic division of the police department of this city; or, in the event a traffic division is not established, then the term "division" whenever used in this chapter, shall be deemed to refer to the police department. 32. 273"Vehicle" means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks. 33. "Ways of this city open to the public" means any highway, road, alley, lane, parking area or other public or private place adapted and fitted for public travel that is in common use by the public. (Code 1982, § 10.04.020; Ord. No. 1179, § 1, 1985) Sec. 36.01.030. Official time standard274. Whenever certain hours are named in this chapter, they shall mean standard time or daylight saving time, as may be in current use in the city. (Code 1982, § 10.04.030) Sec. 36.01.040. District boundaries incorporated; Schedule I275. A. The boundaries of the various districts within the city are more particularly described in Schedule I attached to the ordinance codified in this section. B. Schedule I--Boundaries of districts. The provisions of chapter 38, as amended, the short title of which is the zoning unified development ordinance, are by this reference incorporated herein and made a part hereof, the same as if fully set forth herein, for the purpose of designating and specifying the boundaries of the various districts within the city. (Code 1982, § 10.04.040) Sec. 36.01.050. Administration and enforcement. It shall be the duty of the chief of director of public safety-police to enforce the street traffic regulations of the city, and all of the state vehicle laws applicable to street traffic in the city, to make arrests for traffic violations, to investigate accidents, and to arrest and assist in the 272 Covered by MCA 61-1-101. Leave for Phase 2. 273 Compare to MCA 61-1-101: Leave for Phase 2. (83) (a) "Vehicle" means a device in, upon, or by which any person or property may be transported or drawn upon a public highway, except devices moved by animal power or used exclusively upon stationary rails or tracks. (b) The term does not include a manually or mechanically propelled wheelchair or other low- powered, mechanically propelled vehicle that is designed specifically for use by a physically disabled person and that is used as a means of mobility for that person. 274 This section is unnecessary. This is understood. Delete. 275 What is the relevance in this title? The purpose is that various provisions in Title 10 reference zoning districts with boundary descriptions included in Title 18 (the UDO). Leave this section. PROOFS Page 406 of 977 prosecution of those persons charged with the violations of law causing or contributing to such accidents, to cooperate with other officers of the city in the administration of traffic laws, and in developing ways and means to improve traffic conditions and to carry out those duties specially imposed by this chapter. (Code 1982, § 10.04.050; Ord. No. 1537, § 19, 5-29-2001; Ord. No. 1640, § 3, 6-6-2005) Sec. 36.01.060. Emergency and experimental regulations authorized when. The director of public safety services is empowered to make regulations necessary to make effective the provisions of the traffic ordinances of the city and to make and enforce temporary or experimental regulations to cover emergencies or special conditions. (Code 1982, § 10.04.060) Sec. 36.01.070. Obedience to traffic code required276. It is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter. (Code 1982, § 10.04.070) Sec. 36.01.080. State license plates required277. The owner of a motor vehicle shall register such vehicle with the state motor vehicle department, and shall further comply with all provisions of the Motor Vehicle Registration Act. The owner shall display in a conspicuous place on such registered vehicle the proper license plates, which must be legible at all times for a distance of 100 feet. (Code 1982, § 10.04.080) Sec. 36.01.090. Obedience to police and fire department officials278. No person shall willfully fail or refuse to comply with any lawful order or direction of a police officer or fire department official. (Code 1982, § 10.04.090) Sec. 36.01.100. Obedience by public employees. The provisions of this chapter shall apply to the driver of any vehicle owned by or used in the service of the United States government, the state, the county, or the city, and it is unlawful for any driver to violate any of the provisions of this chapter, except as otherwise permitted in this chapter, or by state statute. (Code 1982, § 10.04.100) Sec. 36.01.110. Operating without driver's license or permit prohibited. It is unlawful for any person to operate any motor vehicle on the streets or roadways of the city without all licenses or permits now or hereafter required by this chapter, or required by the Montana Uniform Motor Vehicle Operator's and Chauffeurs' License Act (MCA 61-5-101 et seq.) and any amendments thereto. It is unlawful for any person learning to drive a motor vehicle to operate the same upon any arterial or through street of the city. It shall be the duty of the police 276 This section is covered by the general penalty. Leave this section. 277 MCA 61-3-301 requires a license plate, but no 100 foot requirement. Leave this section. 278 I won’t comment any further on sections covered by state law until you decide whether to conform to state law or adopt by reference. Leave for Phase 2. PROOFS Page 407 of 977 officers of the city to arrest any person violating the provisions of this section, and take possession of the vehicle so unlawfully operated until satisfaction of any penalty imposed for such violation. (Code 1982, § 10.04.110) Sec. 36.01.120. Licensing and regulation of for-hire vehicles. It is unlawful for any person, firm or corporation to operate any taxicab, bus, or other vehicle for hire for the purpose of carrying passengers within the city without first obtaining a license for such operation, in accordance with the provisions of the ordinances of the city, and any amendments thereto, regulating the licensing of taxicabs and buses, and without fully complying with all the applicable provisions of the laws of the state governing the licensing and regulation of motor carriers. (Code 1982, § 10.40.010) State law reference—Motor carriers, MCA 69-12-101 et seq. ARTICLE 2. ENFORCEMENT Sec. 36.02.010. Authority of police and fire officials. A. It shall be the duty of the city's police officers of the department of public safety- police or such officers as are assigned by the chief of director of public safety-police to enforce all street traffic laws of the city and all of the state vehicle laws applicable to street traffic in the city. B. Police officers of the department of public safety-police, or such officers as are assigned by the chief of director of public safety-police, are authorized to direct all traffic by voice, hand or signal, in conformance with traffic laws; provided that in the event of a fire or other emergency or to expedite traffic or to safeguard pedestrians, officers of the police department of public safety-police may direct traffic as conditions may require notwithstanding the provisions of the traffic laws. C. Fire Officers of the fire department of public safety-fire, when at the scene of a fire, may direct or assist the police in directing traffic thereat or in the immediate vicinity. (Code 1982, § 10.60.010; Ord. No. 1537, § 23, 5-29-2001; Ord. No. 1640, § 7, 6-6-2005) Sec. 36.02.020. Impoundment of vehicles authorized when; procedures required. A. Members of the police department of public safety-police are authorized to remove a vehicle from a street, highway or public parking lot to the nearest garage or other place of safety, or to a garage designated or maintained by the police department of public safety-police, or otherwise maintained by this city under the circumstances hereinafter enumerated: 1. When any vehicle is left unattended upon any bridge, viaduct or causeway, or in any tube or tunnel where such vehicle constitutes an obstruction to traffic; 2. When a vehicle upon a street or highway is so disabled as to constitute an obstruction to traffic and the person or persons in charge of the vehicle are, by reason of physical injury, incapacitated to such an extent as to be unable to provide for its custody or removal; 3. When any vehicle is left unattended upon a street or highway and is so parked illegally as to constitute a definite hazard or obstruction to the normal movement of traffic; 4. When any vehicle is parked in a two-away zone; 5. When any vehicle is parked illegally for a period of more than six hours; 6. When any vehicle is abandoned on any street, highway or public parking lot PROOFS Page 408 of 977 operated by the city by not being moved or used for more than seven consecutive days, and such a vehicle is apparently deserted. B. Whenever an officer removes a vehicle from a street, highway or public parking lot as authorized in this section and the officer knows or is able to ascertain from the registration records in the vehicle the name and address of the owner thereof, the officer shall, within a reasonable time, make every reasonable effort to ascertain the identity of and to locate the owner of the vehicle and to give or cause to be given notice in writing to the owner of the fact of such removal and the reasons therefor, and of the place to which the vehicle has been removed. In the event any such vehicle is stored in a public garage, a copy of such notice shall be given to the proprietor of such garage. C. Before the owner or person entitled to possession of any vehicle removed and impounded, as provided herein, is permitted to remove the same from the custody of the city, the owner shall furnish evidence of such owner's identity and ownership of the vehicle, or right of possession thereto, shall sign a receipt for the vehicle, or right of possession thereto, shall sign a receipt for the vehicle, and shall pay any towing charges incurred by the city in towing said vehicle, and shall pay such charges for the storage of the vehicle as shall have been incurred by the city. D. The payment of such fees and charges, as provided in this article, shall not operate to relieve the owner or operator of such vehicle from liability from any fine or penalty for the violation of any law or ordinance on account of which such vehicle was removed and impounded. (Code 1982, § 10.60.020; Ord. No. 1141, 1983; Ord. No. 1537, § 24, 5-29-2001; Ord. No. 1640, § 8, 6-6-2005) Sec. 36.02.030. Violation of chapter; penalty279. A. Except as provided in subsection B of this section, any person violating any of the provisions of this chapter, or any rule or regulation made by the director of public safety services pursuant thereto, shall unless otherwise specifically designated herein, upon conviction thereof be punished by a fine not exceeding $100.00 or by imprisonment in the city jail not exceeding 30 days, or by both such fine and imprisonment. B. Any person violating the provisions of section 36.04.040 shall, upon conviction thereof, be punished by a fine of not less than $15.00 nor more than $100.00, or by imprisonment in the city jail not exceeding 30 days, or by both such fine and imprisonment. (Code 1982, § 10.60.030; Ord. No. 1104 § 1, 1982) Sec. 36.02.040. Procedure upon arrest. Any person, except a minor under 18 years of age, arrested for violation of this chapter, shall be dealt with in accordance with the provisions of the ordinances of the city concerning and relating to process and execution of sentence. Minors under 18 years of age shall be dealt with as provided in the laws of the state relating to juvenile delinquency. (Code 1982, § 10.60.040) Sec. 36.02.050. Fine or imprisonment authorized. A judgment that the defendant pay a fine may also direct that the defendant be imprisoned until the fine is satisfied, in the proportion of one day's imprisonment for each two dollars of the fine. 279 There are many municipal civil infractions in this title. Use the general penalty for the misdemeanors? Leave as is. PROOFS Page 409 of 977 (Code 1982, § 10.60.050) Sec. 36.02.060. Fines and forfeitures; disposition. All fines or forfeitures collected upon conviction or upon forfeiture of bail of any person charged with a violation of any of the provisions of this chapter shall be paid to the director of finance, and shall be credited to the several funds as by ordinance provided. (Code 1982, § 10.60.060) ARTICLE 3. RULES OF THE ROAD DIVISION 1. GENERALLY Sec. 36.03.010. Safe, properly equipped vehicle required. It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this article, or which is equipped in any manner in violation of this section and sections 36.03.020 through 36.03.040, 36.03.120, 10.08.210280, 36.03.220 and 36.03.230, or for any person to do any act forbidden or fail to perform any act required under said sections. (Code 1982, § 10.08.010) Sec. 36.03.020. Horns and warning devices required. A. Every motor vehicle, when operated upon a street, shall be equipped with a horn in good working order, capable of emitting sound audible under normal conditions from a distance of 200 feet or more; and it is unlawful, except as otherwise provided in this section and sections 36.03.010, 36.03.030, 36.03.040, 36.03.130, 36.03.200, 36.03.230 and 36.03.240, for any vehicle to be equipped with, or for any person to use on a vehicle any siren, bell, musical horn or any compression or sparkplug whistle, or for any person at any time to use a horn otherwise than as a reasonable warning, or to make any unnecessary or unreasonable continued loud or offensive sound by means of a horn or other warning device. B. Every authorized emergency vehicle shall be equipped with a bell, siren or exhaust whistle of a type approved by the director of public safety services. (Code 1982, § 10.08.020) Sec. 36.03.030. Brake equipment and lighting equipment. It is unlawful for any person, firm or corporation to operate, or cause to be operated, upon any of the streets, avenues or alleys of the city any motor vehicle, trailer or towed vehicle not complying with the laws of the state and the rules and regulations of the state highway patrol as to brake equipment and lighting equipment on such vehicles. (Code 1982, § 10.08.030) Sec. 36.03.040. Flag or red light at end of load. Whenever the load on any vehicle extends more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of such load in such a position as to be clearly 280 This section does not appear to be included in the Code. Was it unintentionally omitted, or repealed by an ordinance? Please advise. The former code section 10.08.210 is a DUI provision that was repealed by section 2 of Ord. 1616 in 2004. PROOFS Page 410 of 977 visible at all times from the rear of such vehicle, a red flag not less than 12 inches, both in length and width; except that between one hour after sunset and one hour before sunrise, there shall be displayed at the end of such load a red light, visible under normal atmospheric conditions at least 200 feet from the rear of such vehicle. (Code 1982, § 10.08.040) Sec. 36.03.050. Size and weight of vehicles, trailers, loads and tires; state regulations applicable. A. It is unlawful for any person, firm or corporation to operate or cause to be operated upon any of the streets, avenues or alleys of the city any motor vehicle, trailer or towed vehicle not complying with the laws of the state and the rules and regulations of the Montana State Highway Commission as to the regulations and restriction of size and weight of motor vehicles and loads, trailers and towed vehicles and tire equipment. B. The director of public safety services shall have authority to impose such emergency regulations as to weight of motor vehicles and loads as the director of public services, in the director's discretion, deems necessary. (Code 1982, § 10.08.050) Sec. 36.03.060. Driving on right side of street required. A. Upon all streets except upon one-way streets, the operator of a vehicle shall drive the same upon the right half of the street only, and the operator of a slow-moving vehicle shall drive the same as close as possible to the right-hand curb of the street unless it is impracticable to travel on such side of the street, and except when overtaking and passing another vehicle, subject to the limitations applicable by law in overtaking and passing. B. The foregoing provisions of this section shall not be deemed to prevent the marking of lanes for traffic upon any street and the allocation of designated lanes to traffic moving in a particular direction or at designated speeds. (Code 1982, § 10.08.060) Sec. 36.03.070. Right-of-way at intersections and when entering street. A. Vehicles approaching or entering intersection. 1. The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway or street. 2. When two vehicles enter an intersection from different streets or highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right. 3. The right-of-way rules declared in subsections A.1 and 2 of this section are modified at through or arterial highways and streets and otherwise as hereinafter stated in this section. B. Vehicle turning left at intersection. The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but the driver, having so yielded and having given a signal when and as required by this chapter, may make such left turn, and the drivers of all other vehicles approaching the intersection from the opposite direction shall yield the right-of-way to the vehicle making the left turn. C. Vehicle entering through or arterial highway or street or stop intersection. 1. The driver of a vehicle shall stop as required by this chapter at the entrance to a PROOFS Page 411 of 977 through or arterial highway or street and shall yield the right-of-way to other vehicles which have entered the intersection from the through or arterial highway or street or which are approaching so closely on the through or arterial highway or street as to constitute an immediate hazard, but the driver so yielded may proceed, and the drivers of all other vehicles approaching the intersection on the through or arterial highway or street shall yield the right-of-way to the vehicle so proceeding into or across the through or arterial highway or street. 2. The driver of a vehicle shall likewise stop in obedience to a stop sign, as required in this chapter, at an intersection where a stop sign is erected at one or more entrances thereto although not a part of the through or arterial highway or street, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed. D. Vehicle entering highway or street from private road or driveway. The driver of a vehicle about to enter or cross a highway or street from a private road or driveway shall yield the right-of-way to all vehicles approaching on the highway or street. (Code 1982, § 10.08.070) Sec. 36.03.080. Meeting of vehicles from opposite directions. Operators of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main-traveled portion of the roadway as nearly as possible. (Code 1982, § 10.08.080) Sec. 36.03.090. Crossing intersections or railroads on right side required. In crossing an intersection of streets or the intersection of a street by a railroad right-of-way, except upon a one-way street, the operator of a vehicle shall at all times cause such vehicle to travel on the right half of the street, unless such right half is obstructed or impassable. (Code 1982, § 10.08.090) Sec. 36.03.100. Following, overtaking and passing vehicles. A. General rule. The operator of a vehicle overtaking another vehicle proceeding in the same direction shall pass at a safe distance to the left thereof, and shall not again drive to the right side of the street until safely clear of such overtaken vehicle, except where traffic lanes are plainly marked. B. Limitations on privilege of overtaking and passing. 1. The operator of a vehicle shall not drive to the left side of the centerline of a street in overtaking and passing other vehicles proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety. Subsection A of this section shall not apply upon one-way streets or upon streets laned for traffic, in which later event vehicles traveling in lanes shall move in the direction permitted in such lanes. 2. The operator of a vehicle shall not overtake and pass another vehicle proceeding in the same direction at any steam or electric railroad grade crossing, nor at any intersection of streets. C. Operator to give way to overtaking vehicles. The operator of a vehicle upon a street about to be overtaken and passed by another vehicle approaching from the rear shall give way to PROOFS Page 412 of 977 the right in favor of the overtaking vehicle on suitable and audible signal being given by the driver of the overtaking vehicle, and shall not increase the speed of the vehicle being passed until completely passed by the overtaking vehicle. D. Following too closely. The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard to the speed of such vehicles and the traffic upon and condition of the street. (Code 1982, § 10.08.100) Sec. 36.03.110. Procedure on approach of authorized emergency vehicles. A. Upon the immediate approach of an authorized emergency vehicle equipped with at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle and when the driver is giving audible signal by siren, exhaust whistle or bell: 1. The driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the righthand edge or curb of the roadway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer; 2. This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway. (Code 1982, § 10.08.110) Sec. 36.03.120. Exemptions for authorized emergency vehicles. A. The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated. B. The driver of an authorized emergency vehicle may: 1. Park or stand, irrespective of the provisions of this chapter; 2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; 3. Exceed the prima facie speed limits so long as the driver of the emergency vehicle does not endanger life or property; 4. Disregard regulations governing direction of movement or turning in specified directions. C. The exemptions herein granted to an authorized emergency vehicle shall apply only when the driver of any such vehicle, while in motion, sounds audible signal by bell, siren or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle, except that an authorized emergency vehicle operated as a police vehicle need not be equipped with or display a red light visible from in front of the vehicle. D. The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of such driver's reckless disregard for the safety of others. PROOFS Page 413 of 977 (Code 1982, § 10.08.120) Sec. 36.03.130. Unattended vehicle; brakes to be set and engines stopped. No person having control or charge of a motor vehicle shall allow such vehicle to stand on any street unattended without first setting the brakes thereon and stopping the motor of the vehicle, and when standing upon a perceptible grade, without turning the wheels of such vehicle to the curb or the side of the street or highway. (Code 1982, § 10.08.130) Sec. 36.03.140. Starting parked vehicles; right-of-way. A. No person shall start a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety. B. Any person starting a vehicle from a parallel parked position at the curb or edge of a roadway, before making such movement, shall yield the right-of-way to all vehicles which are approaching so closely as to constitute an immediate hazard, but the driver, having so yielded and having given a signal as required by this chapter for a left-turn movement, may proceed from said parked position into the nearest lane for moving traffic, and the drivers of all other vehicles approaching and proceeding in the same direction shall yield the right-of-way to such vehicle. C. Any person backing a vehicle from a parked position at the curb or edge of a roadway, before making such movement, shall yield the right-of-way to all vehicles which are approaching so closely as to constitute an immediate hazard, but the driver, having so yielded, may proceed from the parked position into the nearest lane for moving traffic, and the drivers of all other vehicles approaching and proceeding in the same direction shall yield the right-of-way to such vehicle. (Code 1982, § 10.08.140) Sec. 36.03.150. Unobstructed view while driving required. A. It is unlawful for the operator of any vehicle to drive the same when such vehicle is so loaded or when there are in the front seat of such vehicle such number of persons as to obstruct the view of the operator to the front or sides, or to interfere with the operator's control over the driving mechanism of the vehicle. B. It is unlawful for any passenger in a vehicle to ride in such a position as to interfere with the operator's view ahead, or to the sides, or to interfere with the operator's control over the driving mechanism of the vehicle. C. It is unlawful for the operator of any vehicle to drive the same when such vehicle is equipped with cardboard or other opaque material as a substitute for window glass, or when the windshield or windows are so covered with frost, snow, ice, dirt or mud as to obstruct the view of the operator to the front, sides or rear thereof. (Code 1982, § 10.08.150) Sec. 36.03.160. Processions. A. Procedures for drivers. Each driver in a funeral or other procession shall drive as near to the righthand edge of the roadway as practical, and shall follow the vehicle ahead as closely as is practical and safe. B. Driving between vehicles; when prohibited. No driver of a vehicle shall drive between the vehicles comprising a funeral or other authorized procession while they are in motion and when such vehicles are conspicuously designated as required in this article. This provision shall not apply at intersections where the traffic is controlled by traffic control signals or police officers. PROOFS Page 414 of 977 (Code 1982, §§ 10.08.160, 10.08.170) Sec. 36.03.170. Driving through safety zones prohibited. No vehicle shall at any time be driven through or within a safety zone when occupied by a pedestrian. (Code 1982, § 10.08.180) Sec. 36.03.180. Following fire apparatus prohibited. The driver of any vehicle other than one on official business shall not follow any fire apparatus traveling in response to a fire alarm closer than 200 feet, or drive into or park such vehicle within the block where fire apparatus has stopped in answer to a fire alarm. (Code 1982, § 10.08.190) Sec. 36.03.190. Crossing fire hose prohibited; exception. No vehicle shall be driven over any unprotected hose of the fire department when laid down on any street, private driveway or railway track, to be used at any fire or alarm of fire, without the consent of the fire department official in command. (Code 1982, § 10.08.200) Sec. 36.03.200. Excessive noise or smoke prohibited. A. No person shall drive a motor vehicle on a street unless such motor vehicle is equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke. B. It is unlawful to use a muffler cutout on any motor vehicle on a street. (Code 1982, § 10.08.220) Sec. 36.03.210. Riding restrictions for drivers and passengers. No person shall ride on any vehicle, nor shall any driver or operator permit riding on any vehicle upon any portion thereof not designed or intended for the use of passengers, and no person operating a motorcycle, motor-driven cycle or bicycle shall ride other than upon the permanent and regular seat attached thereto or carry any other person nor shall any other person ride other than upon a firmly attached seat to the rear or side of the operator. This provision shall not apply to an employee engaged in the necessary discharge of a duty, or to persons riding within a truck body in space intended for merchandise. (Code 1982, § 10.08.230) Sec. 36.03.220. Driving on sidewalks prohibited; exceptions. The driver of a vehicle shall not drive within any sidewalk area except at a permanent or temporary driveway, except authorized vehicles of the city engaged in rendering public services. (Code 1982, § 10.08.240) Sec. 36.03.230. Driving vehicles with leaking loads prohibited. No vehicle shall be driven or moved on any street unless such vehicle is so constructed or loaded as to prevent its contents from dropping, sifting, leaking or otherwise escaping therefrom. (Code 1982, § 10.08.250) PROOFS Page 415 of 977 Sec. 36.03.240. Loose material in transit281. Any person, firm, business, corporation or agent thereof, transporting a load of loose material to the city's landfill or other installation established for disposing of said loose material which has not been covered or contained in a secured and covered container shall pay, in addition to the established dumping fee, an anti-litter assessment of $25.00 per load for vehicles smaller than a one-ton truck and small trailers, which include pickup boxes converted to trailers and smaller; and $50.00 per load for one-ton trucks and larger. (Code 1982, § 8.40.010; Ord. No. 1386, § 1, 1994; Ord. No. 1265, § 1, 1988) 8.40.020. Loose material defined. Loose material is defined as including, but not limited to, grass clippings, branches, leaves, building debris, garbage, refuse, trash, paper, cardboard, or any other item, article or material subject to being discharged from a moving vehicle because of movement, vibration, wind or other physical force. (Code 1982, § 8.40.020; Ord. No. 1265, § 2, 1988) Sec. 36.03.250. Red or green lights in front of vehicle prohibited; exceptions. It is unlawful for any person to drive or move any vehicle upon a highway with any red or green light thereon visible from directly in front thereof. This section shall not apply to police or fire department or fire patrol vehicles, nor to any vehicles required or permitted by state law or regulation to display small red or green clearance lamps on the front. (Code 1982, § 10.08.260) Sec. 36.03.260. Careless driving prohibited; penalty. A. A person operating or driving a vehicle of any character on the ways of the city open to the public shall drive it in a careful and prudent manner so as not to unduly or unreasonably endanger the life, limb, property or other rights of a person entitled to the use of the way. B. Any person who violates this section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount of not less than $25.00 or more than $500.00. (Code 1982, § 10.08.270; Ord. No. 1179, § 2, 1985) 281 Compare to the following Code section: Delete. Previously the city requested this code provision be deleted. Please disregard that instruction and keep this provision (8.40.010 under the old structure) in place. 10.08.250 Driving vehicles with leaking loads prohibited. No vehicle shall be driven or moved on any street unless such vehicle is so constructed or loaded as to prevent its contents from dropping, sifting, leaking or otherwise escaping therefrom. (Code 1982, § 10.08.050) PROOFS Page 416 of 977 10.08.272. Legislative intent282. It is the intent of the city commission that the criminal offense listed in section 10.08.270 be an offense involving absolute liability. This offense shall not require proof of any one of the mental states described in subsections (33), (37), and (58) of section 45-2-101, M.C.A. (Code 1982, § 10.08.272; Ord. No. 1179 § 3, 1985) Sec. 36.03.270. Reckless driving prohibited; penalty for violation. A. Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. B. Every person convicted of reckless driving shall be punished upon a first conviction by imprisonment for a period of not more than 90 days, or by a fine not exceeding $300.00, or by both such fine and imprisonment, and on a second or subsequent conviction shall be punished by imprisonment for not less than ten days nor more than six months, or by a fine not exceeding $500.00, or by both such fine and imprisonment. (Code 1982, § 10.08.280) Sec. 36.03.280. Stepping on or off moving vehicles. No person shall board or alight from any streetcar or vehicle while such streetcar or vehicle is in motion. (Code 1982, § 10.44.010) Sec. 36.03.290. Railroad trains blocking streets283. It is unlawful for the directing officer or the operator of any railroad train to direct the operation of or to operate the same in such a manner as to prevent the use of any street for purposes of travel for a period of time longer than ten minutes, except that this provision shall not apply to trains or cars in motion other than those engaged in switching. (Code 1982, § 10.44.020) Sec. 36.03.300. Clinging to moving vehicles. Any person riding upon any bicycle, motorcycle, coaster, sled, roller skates, or any toy vehicle shall not attach the same or himself/herself284 to any street car or moving vehicle upon any roadway. (Code 1982, § 10.44.030) Sec. 36.03.310. Riding animals, animal-drawn vehicles and pushcarts. Every person propelling any pushcart or riding an animal upon a roadway, and every person driving any animal-drawn vehicle, shall be subject to the provisions of this chapter applicable to 282 This section was repealed by Ord. No. 1616. Was that the intent? Not sure what the intent was with the repeal of 10.08.272 with Ord. 1616 but the effect is this code section was repealed. Phase 2 reconsideration. 283 Most local railroad regulations have been preempted by the Federal Railroad Safety Act of 1970 (49 U.S.C. § 20101 et seq.). Leave as is. 284 Unable to reword this language, so we have added "/herself" in order to make it gender neutral. Edit is OK. PROOFS Page 417 of 977 the driver of any vehicle, except those provisions of this chapter which by their very nature can have no application. (Code 1982, § 10.44.040) Sec. 36.03.320. Toy vehicles, skateboards, rollerblades, and roller skates. A. It shall be unlawful for any person, within the downtown business district, to ride any skateboard, rollerblades, roller skates, or other similar devices or operate any coaster, toy vehicle or radio controlled vehicle upon any sidewalk or roadway. B. It shall also be unlawful for any person, within the city limits, to ride or operate any device referenced in subsection A of this section, within any city-owned parking garage, parking lot, facility or structure. C. The downtown business district is defined as that portion of all streets, avenues, and sidewalks fronting the streets along Mendenhall, Main, and Babcock, including avenues running in a north-south direction between Third and Broadway. D. A person operating a skateboard or similar device upon a roadway shall ride as near to the right side of the roadway as practicable except when necessary to avoid a condition that makes it unsafe to continue along the right side of the roadway, including but not limited to a fixed or moving object, parked or moving vehicle, pedestrian, animal, surface hazard, or a lane that is too narrow for a skateboard and another bicycle or vehicle to travel safely side by side within the lane. A person operating a skateboard or similar device upon a one-way highway with two or more marked traffic lanes may ride as close to the left side of the roadway as practicable. E. The operator utilizing any device referenced in subsection D of this section, if not previously required, must utilize protective visibility gear during hours of darkness, as defined in chapter 9, title 61, Montana Code Annotated (MCA 61-9-101 et seq.), that renders the operator clearly visible to others utilizing the same roadway and any intersecting roadways. F. Every person operating a skateboard or similar device shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of any other vehicle by chapter 7, 8 and 9, title 61, Montana Code Annotated (MCA 61-7-101 et seq., MCA 61-9-101 et seq.), except as to those provisions which by their very nature can have no application. G. This section shall not apply upon any street or avenue while it is set aside as a play street as authorized by city ordinance, or to any skateboard facility approved in accordance with section 12.26.077 26.02.090. (Code 1982, § 10.44.050; Ord. No. 1762, §1(10.44.050), 6-15-2009) Secs. 36.03.330--36.03.440. Reserved. DIVISION 2. TURNING MOVEMENTS Sec. 36.03.450. Turning at intersections; position and method. A. The driver of a vehicle intending to turn at an intersection shall do so as follows: 1. Both the approach for a right turn and a right turn shall be made as close as practical to the righthand curb or edge of the roadway. 2. Approach for a lefthand turn shall be made in that portion of the right half of the roadway nearest the centerline thereof, and after entering the intersection, the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered. 3. Approach for a left turn from a two-way street into a one-way street shall be made in that portion of the right half of the roadway nearest the centerline thereof and by PROOFS Page 418 of 977 passing to the right of such centerline where it enters the intersection. A left turn from a one-way street into a two-way street shall be made by passing to the right of the centerline of the street being entered upon leaving the intersection. 4. Where both streets or roadways are one-way, both the approach for a left turn and a left turn shall be made as close as practicable to the lefthand curb or edge of the roadway. (Code 1982, § 10.12.010) Sec. 36.03.460. Signals required for turning. A. The operator of any vehicle upon a highway, street or roadway, before starting, stopping, turning from a direct line or moving out from a parking place, shall first see that such movement can be made in safety, and whenever the safety of any pedestrian or the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle of the intention to make such movement. B. A signal of intention to turn right or left when required shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning. C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal. D. Signals by hand and arm or signal device. Any stop or turn signal, when required in this chapter, shall be given either by means of the hand and arm, or by a signal lamp or lamps or mechanical signal-device of a type approved by the police department, but when a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle, then said signals must be given by such lamp or signal device. E. For the method of giving hand and arm signals, see section 36.03.470. (Code 1982, § 10.12.020) Sec. 36.03.470. Hand and arm signals described. A. All signals required in this chapter given by hand and arm shall be given from the left side of the vehicle in the following manner, and such signals shall indicate as follows: 1. Left turn: hand and arm extended horizontally. 2. Right turn: hand and arm extended upward. 3. Stop or decrease speed: hand and arm extended downward. (Code 1982, § 10.12.030) Sec. 36.03.480. Mechanical signaling devices required when. Any stop or turn signal, when required in this chapter, shall be given either by means of the hand and arm or by a signal lamp or lamps or mechanical signal-device of a type approved by the police department, but when a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle, then the signals must be given by such a lamp or lamps or signal device. (Code 1982, § 10.12.040) Sec. 36.03.490. Turning markers; placement authorized; driver obedience required. A. The director of public safety services is authorized to place markers, buttons or signs within or adjacent to intersections indicating the course to be traveled by vehicles turning at such intersections, and such course to be traveled as so indicated may conform to or be other than as PROOFS Page 419 of 977 prescribed by law or ordinance. B. When authorized markers, buttons or other indications are placed within an intersection indicating the course to be traveled by vehicles turning thereat, no driver of a vehicle shall disobey the directions of such indications. (Code 1982, § 10.12.050) Sec. 36.03.500. Restricted right, left or U-turns; signs authorized. The director of public safety services is authorized to determine those intersections at which drivers of vehicles shall not make a right, left, or U-turn, and shall place proper signs at such intersections. The making of such turns may be prohibited between certain hours of any day and permitted at other hours, in which event the same shall be plainly indicated on the signs, or they may be removed when such turns are permitted. (Code 1982, § 10.12.060) Sec. 36.03.510. No-turn signs; driver obedience required. Whenever authorized signs are erected indicating that no right or left or U-turn is permitted, no driver of a vehicle shall disobey the directions of any such sign. (Code 1982, § 10.12.070) Sec. 36.03.520. Turning around; restrictions. The driver of any vehicle shall not turn such vehicle so as to proceed in the opposite direction upon any street in the main business district, and shall not upon any other street so turn a vehicle unless such movement can be made in safety and without interfering with other traffic. (Code 1982, § 10.12.080) ARTICLE 4. STOPPING, STANDING AND PARKING *Prior history: Ords. 1091 § 2 and 1126. DIVISION 1. GENERALLY Sec. 36.04.010. Parking time limits; article provisions not exclusive. The provisions of this article imposing a time limit on parking shall not relieve any person from the duty to observe other and more restrictive provisions prohibiting or limiting the stopping, standing or parking of vehicles in specified places or at specified times. (Code 1982, § 10.32.010; Ord. No. 1140, § 1, 1983) Sec. 36.04.020. Exceptions to restrictions. The provisions of this article prohibiting stopping, standing or parking of a vehicle shall apply at all times, or at those times, specified in this article, or as indicated on official signs, except when it is necessary to stop a vehicle to avoid conflict with other traffic or in compliance with the directions of a police officer or official traffic control device. (Code 1982, § 10.32.020; Ord. No. 1140, § 1, 1983) Sec. 36.04.030. Locations where prohibited. A. No person shall stop, stand or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic control device, in any of the following places (no signs are required): 1. On a sidewalk; 2. In front of a public or private driveway; PROOFS Page 420 of 977 3. Within an intersection; 4. Within 15 feet of a fire hydrant, except where parking areas are designated and plainly marked by direction of the director of public safety services; 5. On a crosswalk; 6. Within 20 feet of a crosswalk at an intersection, except where parking areas are designated and plainly marked by direction of the director of public safety services; 7. Within 30 feet upon the approach to any flashing beacon, stop sign or traffic control signal located at the side of a roadway, except where parking areas are designated and plainly marked by direction of the director of public safety services; 8. Between a safety zone and the adjacent curb, or within 30 feet of points on the curb immediately opposite the ends of a safety zone, unless the director of public safety services has indicated a different length by signs or markings; 9. Within 50 feet of the nearest rail of a railroad crossing, except where parking areas are designated and plainly marked by direction of the director of public safety services; 10. Within 20 feet of the driveway entrance to any fire station and on the side of a street opposite the entrance to any fire station within 75 feet of such entrance when properly signposted, except where parking areas are designated and plainly marked by direction of the director of public safety services; 11. Alongside or opposite any street excavation or obstruction when stopping, standing or parking would obstruct traffic; 12. On the roadway side of any vehicle stopped or parked at the edge or curb of a street; 13. Upon any bridge or other elevated structure upon a highway, or within a highway tunnel; 14. In front of a mailbox or similar receptacle utilized for curbside postal delivery, except where such receptacle is solely owned by the person stopping, standing or parking the vehicle; 15. At any place where official signs or markings prohibit stopping or parking. B. No person shall move a vehicle not lawfully under such person's control into any such prohibited area or away from a curb such distance as is unlawful. (Code 1982, § 10.32.030; Ord. No. 1140, § 1, 1983; Ord. No. 1397, § 1, 1995; Ord. No. 1484, § 1, 1998) Sec. 36.04.040. Prohibited near hazardous or congested areas. A. The director of public safety services is authorized to determine, and designate by proper signs, places not exceeding 100 feet in length in which the stopping, standing or parking of vehicles would create an especially hazardous condition or would cause unusual delay to traffic. B. When official signs are erected at hazardous or congested places as authorized in this section, no person shall stop, stand or park a vehicle in any such designated place. (Code 1982, § 10.32.040; Ord. No. 1140, § 1, 1983) Sec. 36.04.050. Procedure generally; distance from curb. No person shall stand or park a vehicle in a roadway other than parallel with the edge of the roadway headed in the direction of lawful traffic movement and with the right-hand or left-hand wheels of the vehicle within 18 inches of the curb or edge of the roadway, except as otherwise provided in this article. PROOFS Page 421 of 977 (Code 1982, § 10.32.050; Ord. No. 1140, § 1, 1983) Sec. 36.04.060. Standing or parking--One-way streets. The director of public safety services is authorized to erect signs upon either or both sides of any one-way street to prohibit the standing or parking of vehicles, and when such signs are in place, no person shall stand or park a vehicle upon such side in violation of any such sign. (Code 1982, § 10.32.060; Ord. No. 1140, § 1, 1983) Sec. 36.04.070. Same--One-way roadways. In the event a highway or street includes two or more separate roadways and traffic is restricted to one direction upon any such roadway, no person shall stand or park a vehicle upon the left-hand side of such one-way roadway unless signs are erected to permit such standing or parking. The director of public safety services is authorized to determine when standing or parking may be permitted upon the left-hand side of any such one-way roadway, and to erect signs giving notice thereof. (Code 1982, § 10.32.070; Ord. No. 1140, § 1, 1983) Sec. 36.04.080. Additional or temporary parking regulations. A. The director of public safety services is authorized to make and enforce such regulations, relative to parking: 1. In front of buildings in which any considerable number of persons have assembled or are expected to assemble, as may seem necessary to ensure rapid and safe exit of the assemblage from such building; 2. On any street, highway or city-operated parking lot for the purpose of permitting construction, maintenance or any other work on or use of the street, highway or city- operated parking lot. (Code 1982, § 10.32.080; Ord. No. 1140, § 1, 1983) Sec. 36.04.090. Parking signs required. Whenever by this chapter or any other ordinance of the city any parking time limit is imposed or parking is prohibited on designated streets or public parking lots, it shall be the duty of the director of public safety services to erect appropriate signs giving notice thereof, and such regulations shall be effective, unless otherwise specifically provided, when said signs are erected and in place at the time of any alleged offense. (Code 1982, § 10.32.090; Ord. No. 1140, § 1, 1983; Ord. No. 1154, 1984) Sec. 36.04.100. Angle parking. A. The director of public safety services shall determine upon what streets angle parking shall be permitted, subject to the approval of the city commission, and shall mark or sign such streets. B. Angle parking shall not be indicated or permitted at any place where passing traffic would thereby be caused or required to drive upon the left side of the street. C. Upon those streets which have been signed or marked by the direction of the director of public safety services for angle parking, no person shall park or stand a vehicle other than at the angle to the curb or edge of the roadway indicated by such signs or markings. (Code 1982, § 10.32.100; Ord. No. 1140, § 1, 1983) PROOFS Page 422 of 977 Sec. 36.04.110. Parking prohibited between curb and sidewalk. It is unlawful to park any vehicle on that portion of any streets lying between the back of the curbline and the sidewalk edge nearest the curbline, or on any landscaped portion of the city streets. (Code 1982, § 10.32.110; Ord. No. 1140, § 1, 1983) Sec. 36.04.120. Parking restrictions on private property. A. No person shall stand or park a vehicle on any private lot or lot area without the express or implied consent of the owner thereof. B. Whenever signs or markings have been erected on any lot or lot area, contiguous or adjacent to a street, thoroughfare or alley, indicating that no vehicles are permitted to stand or park thereon, it is unlawful for any person to drive a vehicle across any curb or lot line or over any driveway from a street or alley into such lot or area for the purpose of standing or parking such vehicle, or for any person to stop, stand or park any vehicle in such lot or lot area. (Code 1982, § 10.32.120; Ord. No. 1140, § 1, 1983) Sec. 36.04.130. Private parking signs prohibited without permit. No person shall erect any temporary or permanent sign or use any other marking or device for the purpose of limiting, prohibiting or restricting parking upon any public street or highway in this city unless a permit to so do is first had and obtained from the director of public safety services. (Code 1982, § 10.32.130; Ord. No. 1140, § 1, 1983) Sec. 36.04.140. Obstructing traffic prohibited. No person shall park any vehicle upon a street, other than an alley, in such a manner or under such conditions as to leave available less than ten feet of the width of the roadway for free movement of vehicular traffic. (Code 1982, § 10.32.140; Ord. No. 1140, § 1, 1983) Sec. 36.04.150. Narrow street parking restrictions. A. The director of public safety services is authorized to erect signs indicating no parking upon any street when the width of the roadway does not exceed 20 feet, or upon one side of a street as indicated by such signs where, in the opinion of the director of public safety services, traffic conditions create a traffic hazard. B. When official signs prohibiting parking are erected upon narrow streets as authorized in this section, no person shall park a vehicle upon any such street in violation of any such sign. (Code 1982, § 10.32.150; Ord. No. 1140, § 1, 1983) Sec. 36.04.160. Alley restrictions. A. No person shall stop, stand or park any vehicle at any time, whether occupied or not, within any alley in the district which includes and is bounded on the north by Lamme Street, on the east by Wallace Avenue, on the south by Olive Street and on the west by Seventh Avenue, except temporarily for the purpose of and while actually engaged in loading or unloading. B. No person shall stop, stand or park any vehicle, whether occupied or not, within any alley in the city other than in the district described in subsection A of this section, in such a manner as to prevent the free movement of vehicular traffic, or in such a position as to block the driving entrance to any abutting property except than temporarily for the purpose of and while actually engaged in loading or unloading. PROOFS Page 423 of 977 (Code 1982, § 10.32.160; Ord. No. 1140, § 1, 1983) Sec. 36.04.170. Parking restrictions near schools. A. The director of public safety services is authorized to erect signs indicating no parking upon that side of any street adjacent to any school property when such parking would, in the director's opinion, interfere with traffic or create a hazardous situation. B. When official signs are erected indicating no parking upon that side of a street adjacent to any school property, no person shall park a vehicle in any such designated place. (Code 1982, § 10.32.170; Ord. No. 1140, § 1, 1983) Sec. 36.04.180. Fire lanes; establishment; parking restrictions. A. The fire chief of the city is authorized to designate, lay out and establish fire lanes not to exceed 20 feet in width over and across public and private property for access by fire equipment to buildings within and to post no parking signs thereon. B. Parking of motor vehicles within a designated and posted fire lane is prohibited and motor vehicles in such fire lanes shall be subject to removal there-from at the owner's expense. C. Upon application and review by the fire chief of the city, or designee, a special needshandicap bus loading and unloading only area may be designated within a fire lane. The designation must be posted by appropriate signs. The driver of the bus must remain, at all times, with the bus, and the bus must vacate the fire lane to emergency response vehicles. (Code 1982, § 10.32.180; Ord. No. 1140, § 1, 1983; Ord. No. 1404, § 1, 1995) Sec. 36.04.190. Special needshandicap285 bus loading/unloading zones; establishment; parking restrictions. A. The director of public safety services is authorized to designate, lay out and establish special needs handicap bus loading and unloading zones and to post proper signs thereon. B. Parking of motor vehicles so as to block the designated special needs handicap bus loading or unloading area is prohibited, and the motor vehicle is subject to being towed at the owner's expense. The owner or operator of a vehicle violating this provision is subject to a fine of not less than $100.00. (Code 1982, § 10.32.185; Ord. No. 1404, § 2, 1995) Sec. 36.04.200. Tow-away zones; establishment; parking restrictions. A. The director of public safety services is authorized to designate, lay out and establish tow-away zones and to post proper signs thereon. B. Parking of vehicles within a designated and posted tow-away zone is prohibited and vehicles in such tow-away zones shall be subject to removal therefrom at the owner's expense. (Code 1982, § 10.32.190; Ord. No. 1140, § 1, 1983) Sec. 36.04.210. Commercial vehicles; parking restrictions. It is unlawful to park any commercial vehicle upon any street for a period of time longer than one hour; provided, however, that when lawfully and continuously loading or unloading, such commercial vehicles may remain parked for such time as is necessary to complete such loading or unloading. Such parking shall be subject to all other and more restrictive provisions of this chapter 285 The term now used is disabled. Change to special needs here and disabled elsewhere. PROOFS Page 424 of 977 prohibiting or limiting the stopping, standing or parking of vehicles in specified places or at specified times. (Code 1982, § 10.32.200; Ord. No. 1140, § 1, 1983) Sec. 36.04.220. Vehicles transporting flammable liquids; parking restrictions. No tank truck, tank trailer or like vehicle containing or used for the transportation of gasoline, butane, fuel oil or other highly flammable liquid shall be parked on any street, alley, park or other public place, nor upon any private property in this city where it would create a hazard to life or adjacent property, for a period longer than 30 minutes; but this restriction upon such parking shall not be construed so as to prevent the delivery of such liquid to retail gas stations or to private residences or business property, and only for so long as is reasonably necessary to complete such delivery. (Code 1982, § 10.32.210; Ord. No. 1140, § 1, 1983) Sec. 36.04.230. Parking prohibited for certain purposes. A. No person shall park a vehicle upon any street, roadway or public parking lot for the principal purpose of: 1. Displaying such vehicle for sale; 2. Displaying advertising; 3. Washing, greasing or repairing such vehicle, except repairs necessitated by an emergency. (Code 1982, § 10.32.220; Ord. No. 1140, § 1, 1983) Sec. 36.04.240. Large vehicles; parking restrictions. It is unlawful for any operator to park a vehicle with a width greater than 84 inches, or a total length exceeding 20 feet, including load, and any vehicle carrying or used for carrying livestock, upon any street where angle parking is designated unless such driver shall hold a special permit from the director of public safety services authorizing such parking. (Code 1982, § 10.32.230; Ord. No. 1140, § 1, 1983) Sec. 36.04.250. Parking limitations on certain streets. A. The director of public safety services is authorized to erect signs or markings upon either or both sides of any street or highway to prohibit the standing or parking of vehicles or to restrict such standing or parking. B. When official signs are erected in each block or markings are placed along a street or highway indicating that parking is prohibited or restricted, no person shall park any vehicle in violation of any such sign or marking. (Code 1982, § 10.32.240; Ord. No. 1188, § 1, 1985; Ord. No. 1140, § 1, 1983) Sec. 36.04.260. Maximum parking time designated. A. When signs are erected on any street, alley or highway within the city designating a maximum time for parking, no person shall park any vehicle for longer than the maximum time posted. B. A vehicle may not return to a parking space in the same block face or within 500 feet of where previously parked on the same block face for a three hour period. C. Upon expiration of the maximum parking duration as posted, a citation may be issued, in accordance with section 36.04.380, to any vehicle which remains parked or stopped on the same block face unless: PROOFS Page 425 of 977 1. The vehicle has moved more than 500 lineal feet, measured along the curb or edge line; 2. The vehicle has moved to an unregulated area in the same block face; or 3. The vehicle has vacated the block face for a minimum of three hours. D. Notwithstanding the foregoing, no person shall park a vehicle for longer than 48 consecutive hours at any time upon a street, alley or highway within the city. Signs may be erected by the director of public safety services giving notice thereof. However, the signs are not required. (Code 1982, § 10.32.250; Ord. No. 1140, § 1, 1983; Ord. No. 1154, 1984; Ord. No. 1579, § 1, 10-7-2002) Sec. 36.04.270. City-operated parking lots; maximum time designated. When signs are erected in city-operated parking lots giving notice of maximum parking duration, no person shall park any vehicle for longer than the maximum duration as posted. (Code 1982, § 10.32.260; Ord. No. 1140, § 1, 1983; Ord. No. 1400, § 1, 1995) Sec. 36.04.280. Loading zones. A. Designation authority. The director of public safety services shall have authority to determine the location of loading zones, and shall erect and maintain, or cause to be maintained, appropriate signs indicating the same. B. Public use. Any loading zone established by the director of public safety services as authorized in this article shall be for the use of the general public, and shall not be restricted to the exclusive use of the occupants of property adjacent to any such loading zone. C. Use restrictions. No person shall stop, stand or park a vehicle for any purpose or period of time other than for the expeditious loading or unloading of passengers or unloading and delivery or pickup and loading of materials in any place marked as a loading zone. (Code 1982, §§ 10.32.270--10.32.290; Ord. No. 1140, § 1, 1983) Sec. 36.04.290. Loading and unloading; backing into curb permitted when. A. At every pickup and delivery point in the main business district of the city where there is an accessible rear entrance, vehicles used for the transportation of merchandise and materials shall use such rear entrance. B. No person shall stand or park a vehicle at an angle to the curb for the purpose of loading or unloading, or for any purpose, when such vehicle so parked or standing extends into the street or roadway so as to impair the normal flow of traffic, unless a special permit for such parking or standing is issued by the director of public safety services to cover emergency conditions. (Code 1982, § 10.32.30; Ord. No. 1140, § 1, 1983) Sec. 36.04.300. Buses; parking restrictions. The driver of a public bus shall not park upon any street in any business district at any place other than at a public bus stop, except that this provision shall not prevent the driver of such vehicle from temporarily stopping in accordance with other stopping or parking regulations at any place for the purpose of and while actually engaged in loading or unloading passengers. (Code 1982, § 10.32.310; Ord. No. 1140, § 1, 1983) Sec. 36.04.310. Bus stops and taxi stands. A. Designation authority. The director of public safety services shall have authority to determine the location of public bus stops and taxi stands, and shall erect and maintain or cause to be maintained, appropriate signs indicating the same. PROOFS Page 426 of 977 B. Use restrictions. No person shall stop, stand or park a vehicle other than a public bus in a public bus stop or stand, or other than a taxicab in a taxicab stand when any such stop or stand has been officially designated and appropriately signed, except that the driver of a passenger vehicle may temporarily stop therein for the purpose of and while actually engaged in loading or unloading passengers, when such stopping does not interfere with any public bus or taxicab waiting to enter or about to enter such zone. (Code 1982, §§ 10.32.320, 10.32.330; Ord. No. 1140, § 1, 1983) Sec. 36.04.320. Illegal parking; vehicle owner responsibility. If any vehicle is found in violation of this article or any rule, regulation, sign or marking in force pursuant thereto, controlling stopping, standing or parking of vehicles, any person in whose name such vehicle is registered shall be responsible for such violation. (Code 1982, § 10.32.340; Ord. No. 1140, § 1, 1983; Ord. No. 1188, § 2, 1985) Sec. 36.04.330. Procedure for the establishment of a residential on-street parking permit regulation program. A. Pursuant to the powers granted to local governments pursuant to state law to regulate the standing or parking of vehicles on public streets, the use of public streets and traffic upon public streets, the city commission may, after holding a public hearing on any residential parking permit proposal, create, pursuant to ordinance, areas of the city to be designated as residential parking permit areas during specified times of the day and week if the city commission finds that the residential area under consideration for such a designation is: 1. Predominantly residential in character; 2. An area the streets of which are regularly congested with vehicles parked by persons not residing in the area; and 3. An area where limiting the parking of vehicles along the public streets better provides adequate motor vehicle parking for residents of the area; and finds that the creation of a residential parking permit area in the residential area under consideration would further one or more of the following objectives: a. Promoting tranquility among commuters and residents; b. Reducing noise; c. Reducing traffic hazards; or d. Reducing litter. B. Any ordinance designating an area of the city as a residential permit parking area shall describe: 1. The designated public street area along which parking will be limited to vehicles registered to or controlled and exclusively used by persons residing in the area; 2. Hours of each day and days of each week that the residential parking permit regulations shall be in effect; 3. The individuals eligible to purchase a permit; 4. Effective dates of annual permits; 5. Any special provisions or exceptions applicable to schools, churches, businesses, public park use, etc. within the residential area; and 6. Visitor permit or special gathering provisions for the residential area. C. Upon adoption of any ordinance by the city commission designating an area for PROOFS Page 427 of 977 residential permit parking only, signs shall be erected along the streets identified in the ordinance prior to any enforcement of the residential parking permit regulation pursuant to section 36.04.090. The parking signs erected shall give notice of the general nature of the parking limitation and shall indicate the hours and days when such parking limitations shall be in effect. (Code 1982, § 10.32.350; Ord. No. 1345, § 1, 1992; Ord. No. 1376, § 1, 1993) Sec. 36.04.340. Limitations on parking in a residential parking permit only area. A. It is unlawful for any person to stop, stand or park a vehicle on any street designated a residential permit only parking area during the hours and on the days set forth in an ordinance adopted by the city commission, except in the following circumstances: 1. Those vehicles displaying a valid residential parking permit or a temporary visitor's permit for the area; or 2. An emergency vehicle, including, but not limited to an ambulance, fire engine or police vehicle; or 3. A clearly marked business vehicle which is under the control of a person providing a service to persons or property located in the designated residential permit only parking area, including but not limited to a delivery vehicle. (Code 1982, § 10.32.360; Ord. No. 1345, § 2, 1992) Sec. 36.04.350. Residential parking permits. A. Application procedure. Applications for residential parking permits shall be submitted to the city on a prescribed form and shall be accompanied by proof in a form satisfactory to the city of the applicant's place of residence within the residential parking permit only area, as well as proof of registration of use and control of each vehicle for which a residential parking permit is sought. Each application shall be accompanied by the appropriate fee for each vehicle for which a parking permit is sought. No part of the parking permit fees shall be refundable. The amount of the fees shall be established by resolution at the level that covers the cost of administration and enforcement of the residential parking permit regulations in the residential area. B. Form and issuance. 1. Upon approval by the city of the application of any person residing in a residential parking permit only area, a residential parking permit shall be issued for each vehicle receiving approval. Upon approval by the city of the application of any person residing in a residential parking permit only area for a temporary visitor's permit, such permit shall be issued by the city. No more than two temporary visitor's parking permits shall be issued annually for a single residential dwelling unit. Temporary visitors' parking permits shall be used only by visitors of the dwelling unit to which the permits were issued and are valid only while visiting that dwelling unit. 2. Each residential parking permit issued by the city for a vehicle shall set forth at least the date of issuance and the license number of the vehicle for which it is issued. Each temporary visitor's permit issued by the city shall set forth at least the date of issuance and the address of the resident to which it is issued. Annual permits shall be required. A permit shall be valid for no longer than the permit year of issuance and is not transferrable. The issuance of a residential parking permit does not serve as a guarantee that there will always be a parking space available for the permit holder on the public streets within the designated residential parking permit area. C. Lawful display required. PROOFS Page 428 of 977 1. Unless otherwise agreed to by a city parking control officer in writing, residential parking permits shall be affixed to the left rear number bumper and temporary visitors' permits and employee permits shall be hung from the interior rearview mirror facing the windshield. It is unlawful to either fail to display or improperly display a residential parking permit, or to attempt to use a residential parking permit from another area in a designated residential area. 2. It is unlawful for the holder of a residential parking permit to fail to surrender it when directed to do so. 3. It is unlawful for any person to represent in any fashion that a vehicle is entitled to a residential parking permit authorized by subsection A of this section or other applicable provisions when it is not so entitled. The display of a residential parking permit on a vehicle not entitled to such a permit shall constitute such a representation. 4. It is unlawful for any person to duplicate, by any means, a parking permit authorized by subsection A of this section or other applicable provisions. It is also unlawful for any person to display on any vehicle such a duplicate parking permit. (Code 1982, §§ 10.32.370--10.32.390; Ord. No. 1345, §§ 3--5, 1992; Ord. No. 1383, § 1, 1994; Ord. No. 1401, §§ 1, 2, 1995) Sec. 36.04.360. Montana State University Residential On-Street Parking Permit Regulation Program. A. The area designated, pursuant to this article, as the Montana State University Residential On-Street Parking Permit Program, and hereinafter referred to as "MSU Residential District," shall be as follows, and as depicted on Exhibit "A", attached hereto (listed streets and avenues include the full right-of-way unless specifically noted): Beginning at the northwest corner of the intersection of South 12th Avenue and West Dickerson Street, thence southerly along the west right-of-way of South 12th Avenue to the north right-of-way of West Alderson Street, thence westerly along the north right-of-way of West Alderson Street to the west right-of-way of South 13th Avenue, thence southerly along the west right-of-way of South 13th Avenue to the centerline of West College Street, thence easterly along the centerline of West College Street to the centerline of South 8th Avenue, thence southerly along the centerline of West 8th Avenue to the centerline of West Harrison Street, thence easterly along the centerline of West Harrison Street to the centerline of South 6th Avenue, thence southerly along the centerline of South 6th Avenue to the centerline of West Grant Street, thence easterly along the centerline of West Grant Street to the centerline of the alley between South 5th Avenue and South 6th Avenue, thence southerly along the centerline of the alley between South 5th Avenue and South 6th Avenue to the south right-of- way of West Grant Street, thence easterly along the south right-of-way of West Grant Street to the west right-of-way of South 5th Avenue, thence southerly along the west right-of-way of South 5th Avenue to the north right-of-way of West Lincoln Street, thence easterly along the north right-of-way of West Lincoln Street to the centerline of South 3rd Avenue, thence southerly along the centerline of South 3rd Avenue to the north right-of-way of West Kagy Boulevard, thence easterly along the north right-of-way of West Kagy Boulevard to the east right-of-way of South 3rd Avenue, thence northerly along the east right-of-way of South 3rd Avenue to the south right-of-way of South Grand Avenue, thence northerly along the south/east right-of-way of South Grand Avenue to the north right-of-way of West Lincoln Street, thence easterly along the north right-of-way of West Lincoln Street to the west right-of- way of South Willson Avenue, thence northerly along the west right-of-way of South Willson Avenue to the north right-of-way of West Arthur Street, thence westerly along the north right-PROOFS Page 429 of 977 of-way of West Arthur Street to the east right-of-way of South Grand Avenue, thence northerly along the east right-of-way of South Grand Avenue to the north right-of-way of West Cleveland Street, thence westerly along the north right-of-way of West Cleveland Street to the east right- of-way of South 3rd Avenue, thence northerly along the east right-of-way of South 3rd Avenue to the south right-of-way of West Harrison Street, thence easterly along the south right-of-way of West Harrison Street to the west right-of South Grand Avenue, thence northerly along the west right-of-way of South Grand Avenue to the north right-of-way of West Harrison Street, thence westerly along the north right-of-way of West Harrison Street to the east right-of-way of South 5th Avenue, thence northerly along the east right-of-way of South 5th Avenue to the south right-of-way of West College Street, thence easterly along the south right-of-way of West College Street to the west right-of-way South 4th Avenue, thence northerly along the west right-of-way of South 4th Avenue to the north right-of-way of West College Street, thence westerly along the north right-of-way of West College Street to the centerline of South 5th Avenue, thence northerly along the centerline of South 5th Avenue to the north right-of-way of West Alderson Street, thence easterly along the north right-of-way of West Alderson Street to the east right-of-way of South 5th Avenue, thence northerly along the east right-of-way of South 5th Avenue to the north right-of-way of West Dickerson Street, thence westerly along the north right-of-way of West Dickerson Street to the east right-of-way of South 7th Avenue, thence northerly along the east right-of-way of South 7th Avenue to the south right-of-way of West Story Street, thence easterly along the south right-of-way of West Story Street to the west right-of-way of South 7th Avenue, thence southerly along the west right-of-way of South 7th Avenue to the north right-of-way of West Dickerson Street, thence westerly along the north right-of-way of West Dickerson Street to the centerline of South 8th Avenue, thence northerly along the centerline of South 8th Avenue to the north right-of-way of West Koch Street, thence westerly to the west right-of-way of South 8th Avenue, thence southerly to the north right-of- way of West Story Street, thence westerly along the north right-of-way of West Story Street to the east right-of-way of South 10th Avenue, thence southerly along the east right-of-way of South 10th Avenue to the centerline of West Story Street, thence easterly along the centerline of West Story Street to the centerline of South 9th Avenue, thence southerly along the centerline of South 9th Avenue to the north right-of-way of West Dickerson Street, thence westerly along the north right-of-way of West Dickerson Street to the Point of Beginning. The district shall also include South 14th Avenue from West Dickerson Street to West College Street, the western half of South 15th Avenue from West Dickerson Street to West Alderson Street, South 15th from West Alderson Street to West College Street, and West Alderson Street from South 13th Avenue to South 14th Avenue. B. No vehicle other than emergency vehicles or vehicles providing services within the MSU residential district or vehicles having a valid residential parking permit may park on any street within the MSU residential district between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, except for legal holidays. Whenever parking is otherwise regulated within the MSU residential district, the posted regulation shall apply. C. These regulations will be enforced by the city police department. D. The department of public services will post signs in accordance with the Manual on Uniform Traffic-Control Devices that indicate the general nature of the restrictions and the hours and days when the restrictions are in effect. E. Permits shall be issued for an annual permit year beginning September 1. F. The amount of the permit fees shall be established by resolution. G. Permits shall be issued by the city police department. Permits may be issued for motor vehicles only upon application by a legal resident within the MSU residential district who PROOFS Page 430 of 977 has a motor vehicle registered in the applicant's name, or who has a motor vehicle for the applicant's exclusive use and under the applicant's control; and satisfying the requirements of section 36.04.350.A and B. H. No more than two visitor permits shall be issued annually to each single residential dwelling unit for use by visitor vehicles. I. Nonresidential uses may be provided with posted time limit parking as approved by the director of public safety services. J. Each business owner or individual employed within the MSU residential district is eligible to purchase one residential permit. K. Annual visitor permits may be issued to nonresidential uses located within the district for circumstances not otherwise provided for within this section. L. Upon request by a resident or employer within the MSU residential district, the police department may issue special gathering permits. M. Residential permits shall become void if either the owner/operator of the vehicle moves out of the MSU residential district or the owner/operator of the vehicle sells the vehicle. A permit holder who moves within the MSU residential district or purchases another vehicle and desires to transfer the permit must apply for such transfer and pay the fee as established by resolution. N. The MSU residential district boundaries may be revised by ordinance. (Code 1982, § 10.32.395; Ord. No. 1377, § 2, 1994; Ord. No. 1384, § 2, 1994; Ord. No. 1391, § 2, 1994; Ord. No. 1392, § 2, 1994; Ord. No. 1393, § 2, 1994; Ord. No. 1395, § 2, 1994; Ord. No. 1401, § 3, 1995; Ord. No. 1405, § 2, 1995; Ord. No. 1415, § 2, 1996; Ord. No. 1536, § 2, 4-30-2001; Ord. No. 1537, § 20, 5-29-2002; Ord. No. 1640, § 4, 6-6-2005; Ord. No. 1644, § 2, 8-15-2005; Ord. No. 1705, § 2, 5-29-2007; Ord. No. 1715, § 2, 8-27- 2007; Ord. No. 1716, § 2, 9-4-2007; Ord. No. 1789, § 1, 7-12-2010) Sec. 36.04.365. Bozeman Senior High School Residential On-Street Parking Permit Regulation Program. A. The streets designated, pursuant to this section, as the Bozeman Senior High School Residential On-Street Parking Permit Program, and hereinafter referred to as "BSHS Residential District", shall be as follows, and as depicted on Exhibit "A", attached hereto: East side of N. 11th between Mendenhall and Durston; Both sides of N. 10th between Mendenhall and Durston; Both sides of N. 9th between Mendenhall and Villard; Both sides of W. Villard from N. 9th to N. 11th; Both sides of W. Beall from N. 9th to N. 11th; Both sides of W. Lamme from N. 9th to N. 11th; North side of W. Mendenhall from N. 9th to N. 11th; West side of N. 15th from W. Beall to Durston; Portions of the east side of N. 15th including the 100 and 200 blocks and from 410 N. 15th north to Durston; West side of S. 11th from Babcock to Curtiss; East side of S. 11th from Babcock to Olive; Both sides of S. 10th from Main to Olive; PROOFS Page 431 of 977 West side of S. 9th from Babcock to Olive; Both sides of West Babcock from S. 9th to S. 11th; North side of West Olive from S. 9th to S. 11th; Both sides of West Beall from N. 15th to N. 16th, including the street frontage adjacent to 1602 West Beall, and The east side of South Ninth Avenue, from West Babcock Street south to the alley between West Babcock and West Olive Street. B. No vehicle other than emergency vehicles or vehicles providing services within the BSHS Residential District or vehicles having a valid residential parking permit may park on any street within the BSHS Residential District between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, except for legal holidays. Whenever parking is otherwise regulated within the BSHS Residential District, the posted regulations shall apply. C. These regulations will be enforced by the city police department. D. The department of public services will post signs in accordance with the Manual on Uniform Traffic Control Devices that indicate the general nature of the restrictions and the hours and days when the restrictions are in effect. E. Permits shall be issued for an annual permit year beginning August 1. F. The amount of the permit fees shall be established by resolution. G. Permits shall be issued by the city police department. Permits may be issued for motor vehicles only upon application by a legal resident within the BSHS Residential District who has a motor vehicle registered in the applicant's name, or who has a motor vehicle for the applicant's exclusive use and under the applicant's control; and satisfying the requirements of section 36.04.350.A and B. H. No more than two visitor permits shall be issued annually to each single residential dwelling unit for use by visitor vehicles. I. Nonresidential uses may be provided with posted time limit parking as approved by the director of public safety services. J. Each business owner or individual employed within the BSHS Residential District is eligible to purchase one residential permit. K. Annual visitor permits may be issued to nonresidential uses located within the district for circumstances not otherwise provided for within this section. L. Upon request by a resident or employer within the BSHS Residential District, the city police department may issue special gathering permits. M. Residential permits shall become void if either the owner/operator of the vehicle moves out of the BSHS Residential District or the owner/operator of the vehicle sells the vehicle. A permit holder who moves within the BSHS Residential District or purchases another vehicle and desires to transfer the permit must apply for such transfer and pay the fee as established by resolution. N. The BSHS Residential District boundaries may be revised by ordinance. (Ord. No. 1542, § 2(10.32.396), 7-23-2001; Ord. No. 1568, § 2, 7-22-2002) Sec. 36.04.370. Legislative intent. It is the intent of the city commission that the violations listed in this article, except for a violation of section 36.04.390, are offenses involving civil liability and are considered municipal PROOFS Page 432 of 977 infractions under chapter 24, article 2. It is also the intent of the city commission that a violation of section 36.04.390 is a misdemeanor criminal offense of absolute liability and shall not require proof of any of the mental states described in MCA 45-2-101(33), (37) and (58). (Ord. 1126 § 2, 1983; Ord. 1140, § 1(part), 1983; Ord. 134, §6, 1992; Ord. No. 1770, § 1, 11-2-2009; Ord. No. 1781, § 1(10.32.400), 5-17-2010) Sec. 36.04.380. Enforcement; penalty for violations; designated as municipal infractions. A. Municipal infraction/fines. A violation of this article is a municipal infraction and shall be punishable by a civil penalty as provided in section 24.02.040 and the civil penalties shall be imposed as follows: 1. The minimum civil penalty for parking in violation of section 36.04.180 shall be a fine of not less than $50.00 or more than $300.00. 2. The minimum civil penalty for parking in violation of section 36.04.250 shall be a fine of not less than $30.00 or more than $300.00. 3. The minimum civil penalty for parking in violation of other sections of this article shall be a fine of not less than $20.00 or more than $300.00. B. Failure to pay. The determining factor with respect to the civil penalty is the issuance of the citation and not the judgment. Failure to pay a citation for violation of this article within seven days of issuance of the citation results in an additional administrative charge, in addition to the penalty, of $20.00. C. Municipal infraction for improperly parked vehicle. 1. If any motor vehicle is found to be in violation of any provision of this article, the vehicle may be cited for the appropriate parking violation. The citation shall be in the form of a notice of municipal infraction pursuant to chapter 24, article 2. The city employee issuing the notice of municipal infraction shall note the vehicle's license plate or vehicle identification number and any other information concerning the vehicle that will identify it and, if the driver is not present, shall conspicuously affix to the vehicle a notice of the parking violation, or alternatively serve directly on the owner/operator of the vehicle in person or forward the citation by regular mail with delivery confirmation requested to the registered owner. 2. The registered owner of a vehicle at the time the violation occurred shall be liable for all fines, fees and penalties related to the specific violation or to previous violation which the registered owner has not paid. 3. The registered owner at the time a vehicle is found to be in violation of any provisions of this article shall remain liable for all violations despite having subsequently sold, transferred, or otherwise conveyed the vehicle. D. Notice of municipal infraction. 1. The form of the notice of the municipal infraction shall be designated by the city, but shall contain in substance the following information: a. A statement that the notice of the municipal infraction represents a determination that a violation of this article has been committed by the owner or user of the vehicle and that the determination shall be final unless contested as provided by this article; b. A statement that failure to pay a violation may result in immobilization and/or impoundment of the vehicle for which the owner may be liable for a penalty, administrative fees, including towing, handling and storage costs; PROOFS Page 433 of 977 c. A statement of the specific provision of this article violated and for which the citation was issued; d. A statement of the monetary penalty established for the parking violation, including that the violation may subject the owner to additional administrative fees if not paid within ten working days of the date of issuance of the citation; and e. A statement of the options provided herein for responding to the notice and the procedures necessary to exercise these options. 2. The notice of municipal infraction represents a determination that a municipal infraction has been committed, and such determination shall be final unless contested as provided herein. 3. Nothing herein shall be deemed to invalidate any previous notice or citation issued by the city regarding a violation under this article. 4. Notice of a municipal infraction affixed to a vehicle is not service of the municipal infraction as required by chapter 24, article 2. Service of a municipal infraction in compliance with section 24.02.020 is not required until a notice of municipal infraction has not been paid within the time periods established in this article or if an administrative appeal made pursuant to subsection F of this section has been denied or modified and the time periods for paying the municipal infraction identified in subsection F of this section have run. Service of a municipal infraction for violations of this article shall be made in compliance with subsection G of this section. E. Response to notice of municipal infraction required. 1. Any person who receives notice of a municipal infraction for a violation of this article shall respond to such notice as provided herein within ten business days of the date of the issuance of the notice, by either paying the penalty set forth in the notice or requesting an administrative appeal pursuant to subsection F of this section. Within ten business days if the person receiving notice fails to either pay the penalty or request an administrative appeal, said failure shall result in the assessment of a $20.00 administrative fee which shall be in addition to the penalty. 2. If the owner of a vehicle cited for a parking violation has not responded to the notice of municipal infraction within ten business days as provided in subsection E.1 of this section, the city shall send a written notice by regular mail with delivery confirmation requested to the last known address of the registered owner of the vehicle. Such notice shall state that if the owner of the vehicle does not respond to the notice by either paying the penalty and administrative fee or by requesting in writing an administrative appeal pursuant to these procedures within ten business days of the date of the notice, the owner shall be deemed to have waived the owner's right to an administrative appeal and the determination that a violation was committed shall be considered final. Any person who fails to request an administrative appeal or pay the fine within the ten business days of the notice described in this subsection shall be deemed to have refused to pay the fine levied by the citation and shall authorize the city to proceed to collect the fine and all administrative fees in any manner available to the city. 3. All payments made by a person regarding a notice of a municipal infraction under this article shall be paid only to the city finance department. F. Administrative appeal of parking citation. Any person cited for a violation of this PROOFS Page 434 of 977 article may contest the determination that a violation occurred by submitting to the city a notice of administrative appeal of parking citation. The notice of appeal must contain a written statement detailing the appellant's argument that the citation was issued in error and may include photographs, or any other information the appellant wishes to rely upon. The citing employee's supervisor shall review the information submitted and, within 21 days of submittal of the notice of appeal, the city shall inform the appellant via regular mail with delivery confirmation requested whether the citation is affirmed, modified, or dismissed. If the citing officer's decision is affirmed or modified, the petitioner shall have ten business days from the date of mailing of the decision to pay the penalty. Failure to pay within ten business day period shall result in the assessment of a $20.00 administrative fee which shall be in addition to the penalty. G. Service of a municipal infraction/notice to appear. 1. If, within the timelines established in subsections E and F of this section, the citation is not paid, if no administrative appeal is filed, or if the administrative appeal is denied and the penalties and fees are not paid, the city shall forward the notice of municipal infraction to the municipal court by serving by certified mail the municipal infraction upon the owner of the vehicle at the vehicle owner's last known address in compliance with section 24.02.020. It is the mailing of the certified letter by the city that constitutes service under section 24.02.020 rather than receipt by the defendant. 2. The service shall clearly state the date, time, and location at which the person must appear before the municipal court. In addition, the notice shall state the date of the original citation, the nature of the violation, the amount owed, including any administrative fees, and a statement that the notice of a municipal infraction for a parking violation has not been paid and the person must therefore appear before the municipal court. Finally, the notice must state that failure to appear may result in an entry of judgment against the party named on the notice. 3. The court may consider the parking citation and any other written report made under oath by the issuing city employee in lieu of the issuing employee's appearance at the hearing. 4. Upon a finding that the defendant committed the violation by the municipal court judge, or their designee, the decision shall be final, without right of appeal, in accordance with MCA 25-30-108. 5. Payment by a defendant of any judgment on a municipal infraction entered by the court shall be paid to the city finance department. H. Immobilization of vehicle. 1. Actions under this subsection H.1 to immobilize a vehicle are for the purpose of collection and are not considered a penalty. The city may immobilize using any immobilization device (i.e., a "boot") any vehicle while parked legally or illegally upon the ways of the city open to the public when: a. The vehicle is subject to six or more unpaid violations of this article as determined by subsection H.3 of this section regarding that vehicle; b. An owner of the vehicle has six or more unpaid violations of this article as determined by subsection H.3 of this section and those violations were issued for any vehicle the person currently owns or has owned; or c. A municipal judge has ordered the vehicle immobilized or impounded. PROOFS Page 435 of 977 If immobilization is conducted pursuant to subsections H.1.a or b of this section, a judgment or order of the municipal court is not required. 2. Prior to immobilization, the city shall send via regular mail with delivery confirmation requested a notice to the last known address of the owner of any vehicle having six or more unpaid violations of this article as determined by subsection H.3 of this section that the vehicle may be impounded or immobilized when located upon the ways of the city open to the public. The notice must reference all the unpaid violations of this article against the vehicle or the owner and allow the person ten business days from the date of mailing of the notice to pay all unpaid violations of this article or contest the determination the vehicle is subject to immobilization in the municipal court. If the vehicle owner does not respond within ten business days of the date of the mailing, the city may immobilize or impound the vehicle. 3. Only the following violations of this article may be considered in determining the number of violations that subject a vehicle to immobilization: a. All violation occurring after July 1, 2007; b. Any violation occurring prior to July 1, 2007, wherein a summons and compliant has been lawfully served on the vehicle owner; and c. Any violation of this article for which a judgment has been entered by the municipal court as long as the judgment occurred no more than ten years prior to the date the notice of a pending immobilization is sent pursuant to subsection H.2 of this section. 4. A $150.00 immobilization fee and costs of costs of immobilization or impoundment, including a $150.00 immobilization fee (when immobilization occurs), will be assessed against the owner and must be paid prior to release. 5. At the time a vehicle is immobilized, the city shall conspicuously affix to the vehicle a written notice via a highly visible sticker or other material with an adhesive backing that can be fastened to the driver-side window containing the following information: This vehicle has been immobilized for six or more unpaid violations of Chapter 36, Article 4 of the Bozeman Municipal Code or by Order of the Municipal Court. Release from immobilization may be obtained by paying all unpaid violations at City Hall, 121 N. Rouse Ave., Bozeman, or by appearing in Bozeman Municipal Court, Law & Justice Center, 615 S. 16th Ave., Suite 123, to answer to the unpaid violations. All assessed fees, including a $150.00 fee for immobilization, must be paid prior to release of this vehicle. If the vehicle remains immobilized for more than 24 hours, the vehicle is subject to being towed and impounded as provided in section 36.04.380.I, with additional fees assessed at that time. Removal or attempted removal of the immobilization device before a release is obtained is unlawful and may be punishable as a criminal offense as provided in section 36.04.390. The owner may contest the action of immobilization and/or impoundment by filing a request for a hearing with the Bozeman Municipal Court within ten business days of the immobilization impoundment. Please call 406-582-2303 during normal business hours for information on how to release this vehicle. After hours, please call 406-582-2000. PROOFS Page 436 of 977 If the vehicle has been immobilized, and has remained immobilized for a period of 24 hours or longer, and a release has not been obtained from the city or the municipal court, then the city may impound the vehicle as provided for in subsection I of this section. 6. Nothing herein shall prohibit the city from providing alternative methods of notice that a vehicle is subject to immobilization or that a vehicle has been immobilized. I. Removal/impoundment of vehicle. 1. The city, or authorized agent of the city, is authorized to remove or tow a vehicle from the ways of the city open to the public pursuant to section 36.02.020 or this section to the city impound lot or to a location associated with the tow company where the vehicle will be stored until the owner of such vehicle appears and claims the same or the vehicle is sold at auction in compliance with MCA 25-13-701 through 25-13-709, under the following circumstances: a. When any vehicle is left unattended upon any bridge/viaduct or causeway or in any tube or tunnel where such vehicle constitutes an obstruction to traffic; b. When a vehicle is left unattended and that vehicle constitutes an obstruction to the safe and efficient removal of snow, ice, other weather caused obstructions or the vehicle must be removed to facilitate the repairs or replacement of city services; c. When a vehicle upon a street constitutes an obstruction to traffic and the person in charge of the vehicle fails to or is unable to provide for its custody or removal; d. Upon issuance of a judicial order for any reason include any offenses under this chapter or title 61, Montana Code Annotated (MCA 61-1-101 et seq.); e. In conjunction with an investigation in which the vehicle is seized pursuant to provisions allowed under MCA 46-5-311, or seized pursuant to a court order; or f. Whenever any vehicle is found by the city parked or left standing in the ways of the city open to the public streets or alleys of the city and: (1) The vehicle is subject to six or more unpaid violations of this article as determined by subsection H.3 of this section regarding that vehicle; (2) An owner of the vehicle has six or more unpaid violations of this article as determined by subsection H.3 of this section and those violations were issued for any vehicle the person currently owns or has owned; or (3) A municipal judge has ordered the vehicle immobilized or impounded. Prior to towing a vehicle under subsection I.1.f of this section, the city must have immobilized the vehicle and following served service upon the last known registered owner of the vehicle of a final written notice in a similar form to that required in subsection H of this section. 2. Whenever a city employee authorizes the removal of a vehicle from the ways of the city open to the public as authorized in this subsection I and the employee removing the vehicle knows or is able to ascertain from the registration records on the vehicle the name and address of the owner thereof, and in compliance with MCA 61-12-402, such officer shall send a notice by certified mail within 72 hours to such owner and lien-holder, if applicable, of the fact of such removal and the reasons thereof and of PROOFS Page 437 of 977 the place to which such vehicle has been removed. If any such vehicle is stored in a public garage or other storage facility, a copy of such notice shall be given to the attendant or owner of the facility. Further, a city employee authorizing the removal of the vehicle, shall adequately update written or electronic records of the immobilization and/or tow to provide for later identification of all fees relative to the release of the vehicle to the registered owner. 3. Impound fee. The cost of towing or removing such vehicle, administrative fees related to notification of the removal, and costs of storing the vehicle shall be chargeable against the vehicle as the impound fee and shall be paid by the owner of the vehicle before the vehicle shall be released pursuant to subsection J of this section. 4. Storage fee. The vehicle may be stored in a public or a private place; if a private place, the storage charges shall be the amount charged for such private storage; if stored on public property, the storage fee shall be $75.00 for each month, or any part thereof, up to a maximum of $225.00, the storage shall be as prescribed from time to time by city commission resolution. Storage fees for vehicles impounded pursuant to this section shall not begin to accrue until five business days following mailing of a certified letter notifying the registered owner of the impoundment or the owner has been directly advised. In addition, storage fees shall not be assessed against the owner of a vehicle impounded pursuant to subsection I.1 of this section until the vehicle has been cleared for release and five business days have passed after the owner has been advised of the release directly or by sending notice of the release by certified mail. The owner of a vehicle impounded and towed due to unpaid parking tickets must secure the release of the vehicle as required by subsection J of this section. The city assumes no responsibility for the condition of the vehicle upon towing to impound or a facility provided by a private towing entity. J. Release of vehicle to owner for immobilization or impoundment. 1. An immobilized or impounded vehicle may be released from immobilization or impoundment only after evidence of ownership or right to possession to the owner or authorized agent of the owner of the vehicle is furnished provided to the city. 2. The owner of an immobilized or impounded vehicle may secure its release: a. Prior to impoundment. By paying all unpaid violations of this article and all administrative costs, including the costs of immobilization as stated in subsection J.2.c of this section with the city finance department; b. Impoundment due to court order. By paying the unpaid violations of this article and all administrative costs, including the costs of immobilization and/or impoundment as stated in subsection H.4 of this section, to the city finance department, or as determined by the municipal court; or c. After impoundment. By posting a bond with the city finance department in an amount equal to: (1) All outstanding violations of this article and all administrative costs; (2) The immobilization fee of $150.00; and (3) A sum equal to the impound fee if the vehicle was impounded. d. After normal business hours release. By posting cash bond with the police department that includes all costs listed in subsection J.2.c of this section for emergency exceptions, as necessary. PROOFS Page 438 of 977 3. At the time the vehicle is released, the owner or the authorized agent of the owner may challenge the immobilization or impoundment in writing within the municipal court. The owner shall state in writing whether the payments made are in full satisfaction of all debts and judgments or whether the owner is making payment as a bond and will challenge the immobilization or impoundment with the municipal court. If at the time of vehicle release the owner posts a bond pursuant to subsection E.1.b of this section and yet fails to challenge the immobilization or impoundment pursuant to subsection K of this section, the bond shall be forfeit and considered as final payment for all debts and judgments listed in subsection J.2.c of this section. K. Hearing for vehicle immobilization or towing/impoundment. 1. Within ten business days of notification of a pending immobilization under subsection H.2 of this section, or within ten business days after an immobilization or impoundment the owner or operator of a vehicle which is the subject of the notice or the action may file a written petition to challenge the notice or action in municipal court. 2. Upon receipt of a petition, the municipal court has jurisdiction and shall set the matter for hearing on an expedited schedule. The court shall give at least 48 hours written notice of the hearing date to the citing city employee or designated representative, the city attorney's office, and the petitioner. 3. Upon filing the petition, if the petition is filed based upon the notice, and an immobilization or impoundment action has not yet taken place, then any future immobilization or impoundment will be stayed pending the outcome of the hearing. An appropriate order shall issue from the court. 4. The court shall not require a response to the petition from the city, but shall take testimony and examine the facts of the case, except that the issues are limited to: a. For immobilization under subsection H of this section: (1) Whether at the time of an immobilization the vehicle was either the subject of six or more unpaid violations of this article, an owner of the vehicle has six or more unpaid violations of this article as determined by subsection H.3 of this section and those violations were issued for any vehicle the person currently owns or has owned, or the vehicle or owner is the subject of an order of immobilization in the municipal court; and (2) Whether a representative of the city had sent, prior to immobilization, to the registered owner of the vehicle a written notice complying with subsection H.2 of this section. b. For impoundment: Whether the vehicle was properly the subject of an act of immobilization or towing as provided in under subsection I of this section. 5. Based upon the issues in subsection K.4 of this section the court shall determine whether the petitioner is entitled to rescission of the notice or action of immobilization or impoundment. If the petitioner is entitled to rescission, then the court may order the city to pay or reimburse the fees for immobilization or impoundment. If the petition is denied, then the petitioner is subject to the action of immobilization or impoundment and must pay the costs of such action, if taken, together with any costs associated with the hearing should the court find the petition was without merit. 6. If the immobilization or impoundment was deemed justified by court, the court shall PROOFS Page 439 of 977 forfeit the bond. Any fines or fees remaining in excess of the amount of the bond posted shall be ordered by the court to be paid by the owner of the vehicle to the court. 7. The court may consider a parking citation and any other written report made under oath by the issuing city employee in lieu of the issuing employee's appearance at the hearing. 8. The petitioner's failure to appear at the hearing may result in a judgment against the petitioner pursuant to procedures established by law and an order may be issued by the court requiring all debts, judgments, and administrative costs, including costs related to immobilization or impoundment and costs of the court, and said order shall be complied with prior to release of the vehicle. L. Sale of impounded vehicles. 1. Vehicles that are not reclaimed within 30 days after notification by certified mail or prescribed publication, in accordance with subsection I.2 of this section, or any vehicles seized and held as evidence where the vehicle no longer has any evidentiary value and for which an order for disposal for the vehicle has been signed by a judge in accordance MCA 46-5-307 and 46-5-308, may be sold at public auction in the manner provided in MCA 25-13-701 et seq. 2. Proceeds from a sale involving vehicles seized pursuant to this article shall be applied first to pay for costs and charges as listed in subsection J.2.c of this section, with any additional balance deposited in the city general fund except when the city is required by law to deposit the balance or any part thereof with another party. In the event of a sale resulting in recovery of costs less than those listed in subsection J.2.c of this section, any unpaid violations or costs may form the basis for additional enforcement under this article. M. Statute of limitations. Enforcement and collection actions, to include issuing a notice of immobilization under subsection H.2 of this section, may not be issued if the following time periods have been exceeded: 1. Civil citation only: For citations issued after July 1, 2007, for which a summons has not been issued in accordance with subsection G.1 of this section, one year from the date of issuance of the citation and prior to the date of notice of immobilization under subsection H.2 of this section; 2. Court summons issued for civil citation: For citations issued after July 1, 2007, for which a summons has been issued in accordance with subsection G.1 of this section, but a judgment has not been entered, three years after issuance of the summons and prior to the date of notice of immobilization under subsection H.2 of this section; 3. Court summons issued for criminal citation: For any citation issued prior to July 1, 2007, that was issued as a criminal citation and where a summons and complaint had been filed with the municipal court, three years from the date of filing with the court and prior to the date of notice of immobilization under subsection H.2 of this section; 4. Judgment entered: For any violation, whether occurring prior to July 1, 2007, or later, if a judgment has been entered by a court, ten years after judgment and prior to the date of notice of immobilization under subsection H.2 of this section. PROOFS Page 440 of 977 Tampering with or Removal of Immobilization Device Prohibited -- Penalty286 5. A person commits the offense of tampering with or removal of an immobilization device if, before a release of the immobilization device is authorized by the city or the municipal court, the person: a. removes or attempts to remove an immobilization device from a vehicle; b. relocates the immobilization device from its original installation position; c. causes damage of any kind or amount to the immobilization device; or d. removes an immobilized vehicle with or without the immobilization device attached from the vehicles location at the time the immobilization device was attached. 6. A person convicted of this offense is guilty of a misdemeanor and shall be fined not to exceed $500.00 or imprisoned in the county jail for a period not to exceed six months or both such fine and imprisonment. 7. As an alternative to incarceration, the person may be ordered to participate in a supervised community corrections program or community service pursuant to MCA 46-18-201. 8. In addition, the person so convicted shall be ordered to pay restitution for the damages caused in an amount to be determined and set by the court. The court shall give full and due consideration to the person's ability to pay the restitution, and may modify the order upon good cause shown by the person. Restitution must be paid in full prior to release from jurisdiction of the city. (Code 1982, § 10.32.410; Ord. No. 1140, § 1, 1983; Ord. No. 1345, § 7, 1992; Ord. No. 1383, § 2, 1994; Ord. No. 1428, § 1, 1996; Ord. No. 1469, § 1, 1998; Ord. No. 1481, § 1, 1998; Ord. No. 1580, § 1, 10-7-2002; Ord. No. 1699, § 1, 4-2-2007; Ord. No. 1771, § 1, 10-5-2009; Ord. No. 1770, § 2, 11-2-2009; Ord. No. 1781, § 2(10.32.410), 5-17-2010) Sec. 36.04.390. Tampering with or removal of immobilization device prohibited; penalty. A. A person commits the offense of tampering with or removal of an immobilization device if, before a release of the immobilization device is authorized by the city or the municipal court, the person: 1. Removes or attempts to remove an immobilization device from a vehicle; 2. Relocates the immobilization device from its original installation position; 3. Causes damage of any kind or amount to the immobilization device; or 4. Removes an immobilized vehicle with or without the immobilization device attached from the vehicles location at the time the immobilization device was attached. B. A person convicted of this offense is guilty of a misdemeanor and shall be fined not to exceed $500.00 or imprisoned in the county jail for a period not to exceed six months or both such fine and imprisonment. C. As an alternative to incarceration, the person may be ordered to participate in a supervised community corrections program or community service pursuant to MCA 46-18-201. D. In addition, the person so convicted shall be ordered to pay restitution for the 286 This material has been struck through as it appears to have unintentionally been duplicated in Ord. No. 1781 with the material in the new section below it. PROOFS Page 441 of 977 damages caused in an amount to be determined and set by the court. The court shall give full and due consideration to the person's ability to pay the restitution, and may modify the order upon good cause shown by the person. Restitution must be paid in full prior to release from jurisdiction of the city. (Ord. No. 1781, § 3(10.32.420), 5-17-2010) Secs. 36.04.400--36.04.540. Reserved. DIVISION 2. HANDICAPPED287 PARKING FOR THE DISABLED 10.34.010. Title288. This chapter shall be known and cited as the Handicap Parking Ordinance of the city and referred to as such in this title. (Code 1982, § 10.34.010; Ord. No. 1116 § 1, 1982) Sec. 36.04.550. Minimum requirements. In their interpretation and application the provisions of this division shall be held to be minimum requirements adopted as an exercise of the general police powers of the city for the promotion of the health, safety and welfare of the physically disabledhandicapped citizens of the community. (Code 1982, § 10.34.020; Ord. No. 1116 § 1, 1982) Sec. 36.04.560. Definitions; regulations. A. Definitions. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning. 1. Physically disabled handicapped.289 "Physically disabledhandicapped" means one 287 Disabled is now the preferred term. Change throughout. 288 Deleted at request of city staff. 289 State law has the criteria for a special parking permit: Leave as is. 49-4-301. Eligibility for special parking permit. (1) The department of justice shall issue a special parking permit to a person who has a disability that limits or impairs the person's mobility and for whom a licensed physician, a licensed chiropractor, or a licensed advanced practice registered nurse, as provided in 37-8-202, submits a certification to the department, by electronic or other means prescribed by the department, that the person meets one of the following criteria: (a) cannot walk 200 feet without stopping to rest; (b) is severely limited in ability to walk because of an arthritic, neurological, or orthopedic condition; (c) is so severely disabled that the person cannot walk without the use of or assistance from a brace, cane, another person, prosthetic device, wheelchair, or other assistive device; (d) uses portable oxygen; (e) is restricted by lung disease to the extent that forced expiratory respiratory volume, when measured by spirometry, is less than 1 liter per second or the arterial oxygen tension is less than 60 mm/hg on room air at rest; (f) has impairment because of cardiovascular disease or a cardiac condition to the extent that the person's functional limitations are classified as class III or IV under standards accepted by the American heart association; or (g) has a disability resulting from an acute sensitivity to automobile emissions or from another disease or physical condition that limits or impairs the person's mobility and that is PROOFS Page 442 of 977 who holds a valid driver's license and owns a motor vehicle, other than a commercial vehicle, and has a permanent physical disability that impairs their mobility when not in a motor vehicle; or regardless of whether they hold a driver's license or own a motor vehicle, have a permanent physical disability that impairs their driving ability and impairs their mobility when not in a motor vehicle to such an extent that they need to be driven by another person to a destination. 2. DisabledHandicapped parking stall. "Disabled Handicapped parking stall" means one so designated by the use of the nationally recognized disabled handicapped sign or symbol. Other definitions. All other definitions applicable to this division shall be found in section 36.01.020. B. Parking in designated disabled handicapped stalls. Pursuant to the provisions of title 49, chapter 4, part 3, Montana Code Annotated (MCA 49-4-301 et seq.), it is unlawful for anyone to park, stop or stand at a designated disabled handicapped parking shall as defined in this division, whether on the public right-of-way or in public parking lots, except those displaying a disabled handicap symbol issued by the division of motor vehicles or other competent jurisdiction. C. Display of disabled handicapped symbol; privileges. a. Disabled Handicapped persons, as defined in this division, shall be granted the privilege of parking at the designated disabled handicapped locations, as documented by the licensed physician, the licensed chiropractor, or the licensed advanced practice registered nurse as being comparable in severity to the other conditions listed in this subsection (1). (2) (a) A person who has a condition expected to improve within 6 months may be issued a temporary placard for a period not to exceed 6 months but may not be issued a special license plate under 61-3-332(9). If the condition exists after 6 months, a new temporary placard must be issued for the time period prescribed by the applicant's physician, chiropractor, or advanced practice registered nurse, not to exceed 24 months, upon receipt of a later paper or electronic certification from the disabled person's physician, chiropractor, or advanced practice registered nurse that the conditions specified in subsection (1) continue to exist and are expected to continue for the time specified. (b) A person who meets one of the criteria in subsection (1) for what is considered to be a permanent condition, as determined by a licensed physician, a licensed chiropractor, or a licensed advanced practice registered nurse, may, by application to the department, by electronic or other means prescribed by the department, be issued a special license plate under 61-3-332(9) and is not required to reapply for the special license plate when the vehicle is reregistered. (3) The department of justice may issue special parking permits to an agency or business that provides transportation as a service for persons with a disability. The permits must be used only to load and unload persons with a disability in the special parking place provided for in 49-4-302. As used in this subsection, "disability" means a physical impairment that severely limits a person's ability to walk. (4) Except as provided in subsection (3), an applicant may not receive more than one permit. History: En. 53-106.12 by Sec. 1, Ch. 31, L. 1977; R.C.M. 1947, 53-106.12(1), (6); amd. Sec. 1, Ch. 614, L. 1983; amd. Sec. 24, Ch. 407, L. 1993; amd. Sec. 1, Ch. 202, L. 1995; amd. Sec. 1, Ch. 392, L. 1995; amd. Sec. 1, Ch. 280, L. 1997; amd. Sec. 1, Ch. 156, L. 1999; amd. Sec. 7, Ch. 399, L. 2003; amd. Secs. 1, 3, Ch. 507, L. 2005; amd. Sec. 28, Ch. 596, L. 2005. PROOFS Page 443 of 977 listed in this section, subject to all other limitations of this chapter such as time limit, parking close to curb, etc., only when the disabled handicapped symbol has been prominently displayed in the windshield of the vehicle. b. Exception. The privilege shall not be extended to those persons not disabled, displaying the disabled handicapped symbol while they are not engaged in transporting, delivering or picking up the disabled handicapped. D. Duties of the police departmentdivision. 290It shall be the duty of the police division department to enforce the provisions of this division, issue citations for the violation thereof, and assist in the prosecution of those persons violating this division. E. Duties of other public employees. The provisions of this division shall apply to the driver of any vehicle owner by or used in the service of the United States government, the state, the county or the city, and it is unlawful for any driver to violate any of the provisions of this division, except those vehicles designated as emergency vehicles. F. Designated municipal infraction. Violation of this division is a municipal infraction and shall be punishable by a civil penalty of not less than $15.00 nor more than $100.00. (Code 1982, §§ 10.34.030--10.34.100; Ord. No. 1116, §§ 2--4, 1982; Ord. No. 1699, § 1, 4-2-2007) ARTICLE 5. TRAFFIC CONTROL DEVICES Sec. 36.05.010. Installation; director of public safety services authority. The director of public safety services shall place and maintain traffic control signs, signals, and devices when and as required under the traffic ordinances of the city to make effective the provisions of such ordinances, and may place and maintain such additional traffic control devices as the director may deem necessary to regulate traffic under the traffic ordinances of the city or under state law, or to guide or warn traffic. (Code 1982, § 10.16.010) Sec. 36.05.020. Manuals and specifications for official devices. All traffic control signs, signals and devices shall conform to the manuals and specifications approved by the city commission. All sign and signals required under this chapter for a particular purpose shall so far as practicable be uniform as to type and location throughout the city. All traffic control devices so erected and not inconsistent with the provisions of state law or this article shall be official traffic control devices. (Code 1982, § 10.16.020) Sec. 36.05.030. Driver obedience required; exceptions. The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto placed in accordance with the traffic ordinances of the city, unless otherwise directed by a police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter. (Code 1982, § 10.16.030) Sec. 36.05.040. Traffic control signals described; effect. A. Whenever traffic is controlled by traffic control signals exhibiting the words "go," "caution" or "stop," or exhibiting different colored lights successively one at a time, or with arrows, the following colors only shall be used, and such terms and lights shall indicate and apply to 290 Now called department? Yes. PROOFS Page 444 of 977 drivers of vehicles and pedestrians as follows: 1. Green alone or "Go." a. Vehicular traffic facing the signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn; but vehicular traffic, including vehicles turning right or left, shall yield the right-of-way to other vehicles and to pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited. b. Pedestrians facing the signal may proceed across the roadway within any marked or unmarked crosswalk. 2. Yellow alone or "Caution" when shown following the green or "Go" signal. a. Vehicular traffic facing the signal is thereby warned that the red or "stop" signal will be exhibited immediately thereafter, and such vehicular traffic shall not enter or be crossing the intersection when the red or "stop" signal is exhibited. b. Pedestrians facing such signal are thereby advised that there is insufficient time to cross the roadway, and any pedestrian then starting to cross shall yield the right-of-way to all vehicles. 3. Red alone or "Stop." Vehicular traffic facing the signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection, and shall remain standing until green or "go" is shown alone. B. In the event an official traffic control signal is erected and maintained at a place other than an intersection, the provisions of this section shall be applicable except as to those provisions which by their nature can have no application. Any stop required shall be made at a sign or marking on the pavement indicating where the stop shall be made, but in the absence of any such sign or marking the stop shall be made at the signal. (Code 1982, § 10.16.040) Sec. 36.05.050. Pedestrian walk and don’t walk wait signals291. A. Whenever special pedestrian-control signals exhibiting the words "walk" or "don’t walkwait" are in place, such signals shall indicate as follows: 1. Walk. Pedestrians facing such signal may proceed across the roadway in the direction of the signal, and shall be given the right-of-way by the drivers of all vehicles. 2. Don’t walkWait. No pedestrian shall start to cross the roadway in the direction of such signal, but any pedestrian who has partially completed the pedestrian's crossing on the walk signal shall proceed to a sidewalk or safety zone while the don’t walkwait signal is showing. (Code 1982, § 10.16.050) Sec. 36.05.060. Flashing red or yellow signals. A. Whenever flashing red or yellow signals are used, they shall require obedience by vehicular traffic as follows: 1. Flashing red (stop signal). When a red lens is illuminated with rapid intermittent 291 Note changes requested by city staff. PROOFS Page 445 of 977 flashes, drivers of vehicles shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign. 2. Flashing yellow (caution signal). When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with caution. (Code 1982, § 10.16.060) Sec. 36.05.070. Traffic lanes, crosswalks, and safety zones; when designation authorized. A. The director of public safety services is authorized: 1. To designate and maintain, by appropriate devices, marks or lines upon the surface of the roadway, crosswalks at intersections where, in the director's opinion, there is particular danger to pedestrians crossing the roadway, and at such other places as the director may deem necessary; 2. To designate and maintain, by appropriate signs or other marking devices, school crossing zones; 3. To establish safety zones of such kind and character and at such places as the director may deem necessary for the protection of pedestrians; 4. To mark lanes for traffic on street pavements at such places as the director may deem advisable, consistent with the traffic ordinances of the city; 5. When authorized by the city commission and pending adoption of amendments to this article or new ordinances repealing this article or parts thereof, to issue orders to change, increase or decrease the streets, zones, public places or other areas described in 292this chapter Schedule I, section 36.01.040; Schedule II, section 10.24.050; Schedule III, section 10.24.060; Schedule IV, section 10.24.070; Schedule V, section 10.20.020; Schedule VI, section 10.28.080; Schedule VII, section 10.32.420; Schedule VIII, section 10.32.430; and Schedule IX, section 10.32.440, and to erect or install such signs, pavement-markings or other devices as may be required by such orders. (Code 1982, § 10.16.070) Sec. 36.05.080. Unauthorized signs, signals or markings described; public nuisance; removal. A. No person shall place, maintain or display upon or in view of any street or highway any unauthorized sign, signal, marking or device which purports to be or is an imitation of or resembles an official traffic control device or railroad sign or signal, or which attempts to direct the movement of traffic, or which hides from view or interferes with the effectiveness of any official traffic control device or any railroad sign or signal, and no person shall place or maintain, nor shall any public authority permit upon any highway any traffic sign or signal bearing thereon any 292 We recommend this language change, as some of the schedules mentioned here are no longer included in the Code. Schedule I is now section 36.01.040; Schedule II is now section 36.07.030; Schedule III is invalid (not included); Schedule IV is now section 36.07.050; Schedule V is now section 36.06.020; Schedules VI through IX are invalid (not included). Do you wish to merely cite to "this chapter," as we've done, or do you wish to include the specific sections of all available schedules? Please edit as you propose. Doing so will require a change to 36.01.040: delete the reference to Schedule I in the caption; delete subsection A; and in subsection B delete the phrase “Schedule I – Boundaries of districts.” PROOFS Page 446 of 977 commercial advertising. This shall not be deemed to prohibit the erection upon private property adjacent to highways of signs giving useful directional information and of a type that cannot be mistaken for official signs. B. Every such prohibited sign, signal or marking is declared to be a public nuisance, and the authority having jurisdiction over the highway is empowered to remove the same or cause it to be removed without notice. (Code 1982, § 10.16.080) Sec. 36.05.090. Interference with traffic controls or railroad signals prohibited. No person shall, without lawful authority, attempt to or in fact alter, deface, injure, knock down or remove any official traffic control device or any railroad sign or signal, or any inscription, shield or insignia thereon, or any other part thereof. (Code 1982, § 10.16.090) Chapter 10.10 RED LIGHT CIVIL ENFORCEMENT AND AUTOMATED TRAFFIC SIGNAL CAMERA PROGRAM293 10.10.310. Definitions. In this section: __ Action -- A special proceeding of a civil nature. __ Approach -- One specific location of an intersection where a photographic Traffic Signal Enforcement System will be used to monitor when drivers of vehicles fail to obey red "stop" signals. __ Authorized emergency vehicle - a vehicle of a governmental or volunteer fire agency, emergency vehicles of municipal departments or public utilities that are designated or authorized as emergency vehicles, ambulance or a vehicle used in the service of any law enforcement agency. __ Department - the Police Department of the city of Bozeman, Montana. __ Highway - the entire width between the boundary lines of every publicly maintained way when any part of the publicly maintained way is open to the use of the public for purposes of vehicular travel. __ Intersection - the area embraced within the prolongation or connection of the lateral curblines or if there are no curblines then the lateral boundary lines of the roadways of two highways that join one another at or approximately at right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict. __ 294Motor Vehicle - a vehicle propelled by its own power and designed or used to transport persons or property upon the highways of the State; and a quadricycle if it equipped for use on the highways of the State. 293 Deleted at request of city staff. 294 Compare to Code § 10.04.020: 12. "Motor vehicle" means every vehicle which is self-propelled, and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails. PROOFS Page 447 of 977 __ Municipal Infraction -- a civil offense punishable by a civil penalty of not more than $300 for each violation. __ Owner - the owner of a motor vehicle as shown on the motor vehicle registration records of the Motor Vehicle Division, Montana Department of Justice (MTDMV- DOJ) or the analogous department or agency of another state. __ Photographic Traffic Signal Enforcement System - a system that: __ is a device with one or more motor vehicle sensors working in conjunction with a red light signal to produce recorded images and recorded video of motor vehicles entering an intersection against a red signal indication in violation of section 10.10.320 of this chapter; and __ at least three of the recorded images consisting of: __ A first image that will clearly show the system location including all pertinent lanes of traffic, the traffic control signal, pertinent traffic control signs and the offending vehicle prior to entering the intersection with its front tires before the stop mark line while the red phase of the traffic control signal is clearly illuminated and visible. __ A second image that will clearly show the progression of the violation and system location including all pertinent lanes of traffic, the traffic control signal, pertinent traffic control signs and the offending vehicle after entering the intersection while the red phase of the traffic control signal is clearly illuminated and visible __ A third image that will clearly show a close-up or zoomed image of the license plate attached to the rear of the motor vehicle. __ the recorded video consists of: __ an approximate 12 second recorded video of the system location and each municipal infraction that occurs clearly showing the full movement of the offending vehicle thru the infraction that was captured in the still images. __ Recorded Image - an image recorded by a photographic traffic monitoring system automatically recorded on a photograph or digital image. __ Recorded Video - video footage recorded by a photographic traffic monitoring system automatically recorded in a digital manner. __ Recorded Data -- any combination of recorded image or recorded video that has been recorded in a digital manner. __ Stop Mark Line -- Painted line on an intersection approach indicating to drivers of motor vehicles the final location to stop for a red traffic signal. __ System Location - the approach to an intersection toward which a photographic traffic monitoring system is directed and in operation. __ Traffic control Signal - a device, whether manually, electrically, or mechanically operated, by which traffic is alternately directed to stop, reduce speed or proceed through an intersection. (Ord. No. 1752, § 1, 10.10.310, 1-12-2009) PROOFS Page 448 of 977 10.10.320. Traffic control signal legend. Except for lane use control signals and special pedestrian control signals carrying a legend, whenever traffic is controlled by traffic control signals exhibiting different colored lights or colored lighted arrows successively one at a time or in combination, only the colors green, red, and yellow may be used. The lights indicate and apply to drivers of vehicles as follows: __ GREEN SIGNAL __ Vehicular traffic facing a circular green signal may proceed straight through or turn left or right unless a traffic control device at the approach of an intersection prohibits either turn. However, vehicular traffic, including vehicles turning right or left, must yield the right-of-way to other vehicles or pedestrians lawfully within the intersection at the time the signal is exhibited. __ Vehicular traffic facing a green arrow signal shown alone or in combination with another indication may cautiously enter the approach of an intersection only to make either the movement indicated by the arrow or another movement permitted by another indication shown simultaneously. Vehicular traffic executing the movements permitted by this subsection must yield the right-of-way to pedestrians lawfully within an adjacent crosswalk and to other traffic lawfully using the intersection. __ YELLOW SIGNAL __ Vehicular traffic facing a steady circular yellow or yellow arrow signal is warned that the traffic movement permitted by the related green signal is being terminated or that a red signal will be exhibited immediately thereafter. Vehicular traffic may not enter the intersection when the red signal is exhibited after the yellow signal. __ RED SIGNAL __ Vehicular traffic facing a steady circular red signal must stop at a marked stop bar. If there is not a marked stop bar, vehicular traffic must stop before entering the crosswalk on the near side of the intersection. If there is not a marked crosswalk, vehicular traffic must stop before entering the intersection and, except as provided in subsection 3(c), must remain standing until an indication to proceed is shown. __ Vehicular traffic facing a steady red arrow signal may not enter the intersection to make the movement indicated by the arrow and must stop at a marked stop line unless the traffic is entering the intersection to make a movement indicated by another signal. If there is not a marked stop line, vehicular traffic must stop before entering the crosswalk on the near side of the intersection. If there is not a marked crosswalk, vehicular traffic must stop before entering the intersection and must remain standing until an indication is shown that permits movement. __ Except when a traffic control device is in place that prohibits a turn, vehicular traffic facing a steady circular red signal may cautiously enter the intersection to turn right after stopping as required under subsection 3)b). __ Failure to comply with Provisions listed in section 10.10.320 shall be considered a Municipal Infraction as defined in section 10.10.310 of this chapter. (Ord. No. 1752, § 1, 10.10.320, 1-12-2009) PROOFS Page 449 of 977 10.10.330. Enforcement procedures. __ Automated Red Light Camera Enforcement. __ The Department may enforce and administer this ordinance, or any parts thereof, through one or more contractors. The actions which can be used to enforce the issuing of a municipal infraction, payment of the civil penalty and related fees may consist of, but are not limited to, reporting the debt to collection agencies/credit reporting agencies, and/or initiating civil actions for collection. __ In order to impose a civil penalty under this article, the Department itself, or through one or more contractors, shall mail by depositing in the U.S. mail with sufficient postage a notice of municipal infraction to the owner of the motor vehicle liable for the civil penalty not later than the 30th day after the date the violation is alleged to have occurred to: __ the owner's address as shown on the registration records of the MTDMV- DOJ; or __ if the vehicle is registered in another state, the owner's address as shown on the motor vehicle registration records of the department or agency of the other state analogous to the MTDMV-DOJ. __ A notice of Municipal Infraction issued under this section shall contain the following: __ a description of the Municipal Infraction alleged; __ the license number and issuing state of the motor vehicle involved in the Municipal Infraction; __ the name and address of owner of the motor vehicle involved in the Municipal Infraction; __ the date, time and location of the Municipal Infraction; __ a copy of a recorded image of the vehicle involved in the Municipal Infraction; __ notice of internet web access and password to view recorded video of the Municipal Infraction; __ the amount of the civil penalty to be imposed for the Municipal Infraction; __ the date by which the civil penalty must be paid; __ a statement that the person named in the notice of Municipal Infraction may pay the civil penalty in lieu of appearing at a civil action hearing; __ information that informs the person named in the notice of Municipal Infraction: __ of the right to contest the imposition of the civil penalty in a civil action hearing; __ of the manner and time in which to contest the imposition of the civil penalty; and __ that failure to pay the civil penalty or to contest liability is an admission of liability; and PROOFS Page 450 of 977 __ a statement that a recorded image and recorded video is evidence in a proceeding for the imposition of a civil penalty; __ that payment in full is due no later than on the 25th day after the date of the notice, unless the Municipal Infraction is contested in accordance with Section 10.10.350; __ any other information deemed necessary by the department. __ A notice of Municipal Infraction under this section is presumed to have been received on the 5th day after the date the notice of Municipal Infraction is mailed. __ In lieu of issuing a notice of Municipal Infraction, the Department may mail a warning notice to the owner. __ In lieu of mailing the notice of Municipal Infraction, the Department may cause to be personally served upon the owner of the motor vehicle liable for the civil penalty or the person nominated by the vehicle owner as the party responsible for the Municipal Infraction notice of the Municipal Infraction. Personal service may be performed by any person over the age of 18 years. The process server shall complete a return of service for each notice of Municipal Infraction served indicating the date, time, location and name of the person served. All costs of personal service shall be recoverable upon conviction of the Municipal Infraction. Personal service may be made within or without the state of Montana. __ Criminal and Civil enforcement by Police Officer. This ordinance does not abrogate or impair enforcement of existing traffic laws by a police officer for a violation committed in the officer's presence, or as the result of a traffic crash investigated by the officer. Specifically, if a police officer personally and contemporaneously observes a red light violation, or has evidence from a crash investigation that a red light violation has occurred by a driver, the police officer may issue a criminal citation under state law or the Bozeman Traffic Code or a Notice of Municipal Infraction pursuant to this chapter. __ A Notice of Municipal Infraction issued under this section shall contain the following: __ a description of the Municipal Infraction alleged; __ the license number and issuing state of the motor vehicle involved in the Municipal Infraction; __ the name and address of the driver of the motor vehicle involved in the Municipal Infraction; __ the date, time and location of the Municipal Infraction; __ the amount of the civil penalty to be imposed for the Municipal Infraction; __ the date by which the civil penalty must be paid; __ a statement that the person named in the notice of Municipal Infraction may pay the civil penalty in lieu of appearing at a civil action hearing; __ information that informs the person named in the notice of Municipal Infraction: __ of the right to contest the imposition of the civil penalty in a civil action hearing; __ of the manner and time in which to contest the imposition of the civil penalty; and PROOFS Page 451 of 977 __ that failure to pay the civil penalty or to contest liability is an admission of liability; and __ that payment in full is due no later than on the 25th day after the date of the notice, unless the Municipal Infraction is contested in accordance with Section 10.10.350; __ any other information deemed necessary by the department. (Ord. No. 1752, § 1, 10.10.330, 1-12-2009) 10.10.340. Imposition of civil penalty for municipal infraction. __ Automated Red Light Camera Enforcement. __ Except as provided in section 10.10.350 below, the owner of a motor vehicle, who was the owner of that vehicle at the date and time of the violation, is accountable for a municipal infraction occurring involving the owner's vehicle and is liable for a civil penalty of not less than One Hundred Thirty-Five ($135), nor more than Three Hundred Dollars ($300), if the motor vehicle proceeds into an intersection at a System Location at a time when the traffic control signal for that motor vehicle's lane and direction of travel is emitting a steady red signal or in violation of section 10.10.320 of this chapter. __ Civil enforcement by Police Officer. __ The driver of a motor vehicle who has received a Notice of Municipal Infraction by a Police Officer and who was the driver of a vehicle at the date and time of a violation, is accountable for a municipal infraction occurring involving the owner's vehicle and is liable for a civil penalty of not less than One Hundred Thirty-Five ($135), nor more than Three Hundred Dollars ($300), if the motor vehicle proceeds into an intersection at a System Location at a time when the traffic control signal for that motor vehicle's lane and direction of travel is emitting a steady red signal or in violation of section 10.10.320 of this chapter. (Ord. No. 1752, § 1, 10.10.340, 1-12-2009) 10.10.350. Civil action hearing. __ A person who receives notice of violation may contest the imposition of the civil penalty by requesting in writing a civil action hearing of the civil penalty. Such a written request for a civil action hearing must be post-marked and mailed within 20 days after the receipt of the notice of Municipal Infraction, which must be received by the Department no later than the 25th day after the date on the notice of Municipal Infraction. Upon receipt of a timely request, the Department shall notify the person of the date, time and location of the civil action hearing. The civil action hearing shall be held before a City of Bozeman Municipal Court Judge, or designee. __ Failure to pay a civil penalty or to contest liability in within timelines established by this chapter is an admission of liability in the full amount of the civil penalty assessed in the notice of Municipal Infraction, and is a waiver of the right to contest or appeal the notice of Municipal Infraction. __ The civil penalty shall not be assessed if, after a hearing, the Municipal Court Judge, or designee, enters a finding of no liability. __ In a civil action hearing, the issues must be proved at the hearing by a preponderance of the evidence. The reliability of the photographic traffic signal enforcement system used to produce the recorded image or recorded video of the violation may be attested to in a civil action hearing by affidavit of an officer or employee of this City or the entity with which the PROOFS Page 452 of 977 city contracts to install or operate the system and who is responsible for inspecting and maintaining the system. An affidavit of an officer or employee of the city that alleges a violation based on an inspection of the pertinent recorded image and recorded video, is admissible in a proceeding under this chapter and is evidence of the facts contained in the affidavit. __ A person who is found liable after a civil action hearing or who requests a civil action hearing and thereafter fails to appear at the time and place of the hearing may be held liable for actual hearing costs in accordance with Montana Code Annotated 25-10-201 together with all actual costs of service of the notice of the Municipal Infraction either by mail or personal service. A person who is found liable for a civil penalty after a civil action hearing, or who fails to appear, shall pay the civil penalty together with hearing and service costs within 15 days of the hearing. __ If at the time of the Municipal Infraction, issued pursuant to section 10.10.330 A. Automated Red Light Camera Enforcement, of this chapter, the motor vehicle was in the care, custody or control of another person, the owner may either accept responsibility or identify the driver so the contractor can send a Notice of Municipal Infraction to the driver. The department may send, or cause a contractor to send, a new Municipal Infraction Notice to the nominee. The effective date of the Notice of Municipal Infraction sent to the nominee is the day notice is issued to the nominee as indicated on the face of the new Municipal Infraction Notice. If the nominee appeals denying he or she was the driver or defaults, the city may proceed against the registered owner by issuing a subsequent Municipal Infraction Notice to the owner with the effective date being the date so indicated on the face of the subsequent Municipal Infraction Notice. If the city cannot assert jurisdiction over the nominee, the owner is responsible, subject to the remaining defenses available in this article. Any owner who admits a certificate does so under penalty of perjury or any other applicable penalties if any information contained therein is knowingly false. Without limitation on the foregoing, nomination may be used when: __ The owner was not driving the vehicle at the time of the Municipal Infraction. __ The owner is the United States of America, State of Montana, County of Gallatin, City of Bozeman or other governmental entity that owns a vehicle that was being driven by a natural person who was the employee, contractor or agent of the governmental entity at the time of the alleged Municipal Infraction. __ The owner is a place of business, corporation or other non-natural entity that owns a vehicle that was being driven by a natural person who was the employee, contractor or agent of the business, corporation or other non-natural entity at the time of the alleged Municipal Infraction. __ The owner is an automobile rental business, automobile dealership or other business entity that, in the ordinary course of business, leases vehicles to others and the lessee was driving the vehicle at the time of the alleged Municipal Infraction. __ It shall be an affirmative defense to the imposition of civil liability under this chapter, to be proven by a preponderance of the evidence, that: __ the traffic control signal was not in proper position and sufficiently legible to an ordinarily observant person; __ the operator of the motor vehicle was acting in compliance with the lawful order or direction of a police officer; __ the operator of the motor vehicle violated the instructions of the traffic control signal so as to yield the right-of-way to an immediately approaching authorized emergency vehicle or as part of a funeral procession; __ the motor vehicle was being operated as an authorized emergency vehicle and that the operator was acting in compliance with state statutes in operation thereof; PROOFS Page 453 of 977 __ the motor vehicle was a stolen vehicle and being operated by a person other than the owner of the vehicle without the effective consent of the owner; __ To demonstrate that the motor vehicle was stolen before the violation occurred and was not under the control or possession of the owner at the time of the Municipal Infraction, the owner must submit proof that a report concerning the stolen motor vehicle was filed with a law enforcement agency. __ the license plate depicted in the recorded image of the violation was a stolen plate and being displayed on the motor vehicle other than the motor vehicle for which the plate had been issued; or __ To demonstrate that the motor vehicle registration plates were stolen before the violation occurred and the plates were not under the control or possession of the owner at the time of the Municipal Infraction, the owner must submit proof that a report concerning the stolen motor vehicle registration plates was filed with a law enforcement agency. (Ord. No. 1752, § 1, 10.10.350, 1-12-2009) 10.10.360. Order. __ The Municipal Court Judge at any civil action hearing under this article shall issue an order stating: __ whether the person charged with the Municipal Infraction is liable for the Municipal Infraction; and __ if liable, the amount of any civil penalty, late penalty, and actual civil action hearing costs assessed against the person. Upon full satisfaction of penalties and costs, the department shall file a notice of full satisfaction with the Municipal Court. __ The orders issued under subsection (a) may be filed with the Department. The Department shall keep the orders in a separate index and file. The orders may be recorded using electronic or magnetic means. (Ord. No. 1752, § 1, 10.10.360, 1-12-2009) 10.10.370. Effect of liability. __ The imposition of civil penalty under this article is not a criminal conviction for any purpose, and is not reflected on the owner's permanent driving record. __ A civil penalty may not be imposed under this chapter on the owner of a motor vehicle if the operator of the vehicle was arrested or was issued a criminal or civil citation by a law enforcement officer for the same violation, or in which the red-light violation was part of a separate criminal or civil citation, such as, but not limited to, careless driving, reckless driving or similar violations. __ An owner who fails to pay the civil penalty or to contest liability for the penalty, in accordance with timelines established in this chapter, is considered to admit liability for the full amount of the civil penalty stated in the Municipal Infraction Notice. __ The city attorney, or designee, is authorized to file suit to enforce collection of a civil penalty imposed under this article. In addition to the amount of the civil penalty collected, reasonable attorney's fees and court costs incurred in enforcing the collection shall be recoverable in that action. (Ord. No. 1752, § 1, 10.10.370, 1-12-2009) PROOFS Page 454 of 977 10.10.380. Real time monitoring and recorded data use. __ Real time monitoring __ Law Enforcement Officials and 9-1-1 Dispatch operators shall be allowed the use of real-time monitoring of intersections where photographic traffic signal enforcement system is operating: __ To allow for immediate viewing of an intersection where an emergency has occurred to allow for first responder assessment. __ To allow for immediate viewing of intersections to help in the investigation of serious traffic incidents or serious criminal acts. __ Recorded data use __ Law Enforcement Officials shall be allowed the use of recorded data from photographic traffic signal enforcement systems: __ To use as evidence to support a Notice of Municipal Infraction issued pursuant to this chapter. __ To use as evidence to support the investigation by law enforcement of serious traffic incidents, crash investigations, and/or serious criminal acts. __ To use as evidence to support a criminal citation or request for prosecution related to serious traffic incidents, crash investigations and/or serious criminal acts. (Ord. No. 1752, § 1, 10.10.380, 1-12-2009) 10.10.390. Fund control. __ The penalties, fines, and fees collected from the imposition of civil liability under this article shall be deposited into a separate fund account hereby established. This program and fund is established with a focus on ensuring the costs of the program are covered first by funds received and that any excess funds received are spent in a manner directed specifically by the Bozeman City Commission. __ Operational funds - funds deposited into this account shall be expended first for the costs of the system. These costs include: __ Costs related to contracted services for the program. __ Costs related to non-contracted services for the program, such as: __ Public relations or public education. __ General program implementation __ City of Bozeman direct costs related to the program. __ Remaining funds -- funds deposited in excess of those required for operational costs shall, by resolution, be used as directed by the Bozeman City Commission. (Ord. No. 1752, § 1, 10.10.390, 1-12-2009) ARTICLE 6. ONE-WAY STREETS AND ALLEYS Sec. 36.06.010. Designation; sign placement; traffic movement restricted. A. Whenever any city ordinance designates any one-way street or alley, the director of public safety services shall place and maintain signs giving notice thereof, and no such regulation shall be effective unless such signs are in place. Signs indicating the direction of lawful traffic movement shall be placed at every intersection where movement of traffic in the opposite direction PROOFS Page 455 of 977 is prohibited. B. Upon those streets and parts of streets and in those alleys described in Schedule V attached to the ordinance codified in this section and made a part hereof, vehicular traffic shall move only in the indicated direction when signs indicating the direction of traffic are erected and maintained at every intersection where movement in the opposite direction is prohibited. (Code 1982, § 10.20.010) Sec. 36.06.020. One-way streets designated. A. In accordance with section 36.06.010 and when properly signed, traffic shall move only in the direction indicated upon the following described alley: 1. All that part of the dedicated alley between Main Street and Babcock Street from the east right-of-way line of Ninth Avenue to the west right-of-way line of Eighth Avenue. (Code 1982, § 10.20.020; Ord. No. 1210, 5-27-1986295; Ord. No. 1231, 1987) ARTICLE 7. SPEED LIMITS Sec. 36.07.010. General rule. A. Every person operating or driving a vehicle of any character on a public street or roadway in the city limits shall drive the same in a careful and prudent manner, and at a rate of speed no greater or less than is reasonable and proper under the conditions existing at the point and time of operation, taking into account the amount and character of traffic, condition of brakes, width of vehicle, grade, and width of street or roadway, condition of surface, freedom of obstruction to view ahead, and all other conditions then existing, and so as not to unduly endanger the life, limb, property, or other rights of any person entitled to the use of the street or roadway. 1. The prima facie speed limits set forth herein may be altered upon the basis of an engineering and traffic investigation that finds that any prima facie speed set forth in this article is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a street or highway within the city's jurisdiction. Such investigation shall be conducted by the director of public servicesCity Engineer, or designee, in consultation with the chief of policeDirector of public safety -- Police, or designee, and upon concurrence with the recommendation of the director of public servicesCity Engineer, the city commission shall adopt a resolution to determine and declare a reasonable and safe prima facie speed limit which shall be effective when appropriate signs giving notice thereof are erected at such intersections or other place or part of the street or highway. Upon adoption of such a resolution, the resolution shall be posted in the office of the city clerk and in such other locations as may be designated by the city clerk. 2. It shall be prima facie unlawful for any person to exceed any of the speed limitations set out in this article or in subsequent commission resolutions which may be adopted from time to time as set out in subsection 1 of this section when such speed limits are properly posted. In every charge of violation of this article or subsequent commission resolution, the complaint shall specify the speed at which the defendant is alleged to have driven, and the speed applicable at the time and place of the alleged violation, as posted. 295 If possible, please provide an adoption date (or year) for Ord. No. 1210. Adoption date is 5/27/1986 PROOFS Page 456 of 977 3. The director of public services, together with the chief of director of public safety - police and the city engineer, are hereby authorized to establish temporary speed zones, including school or park zones, after conducting a preliminary visual and engineering review of any proposed street, school or park location, which may require a temporary designation. Such temporary designation, when properly signed, shall be effective at all times until a complete traffic and engineering study is completed or until the city commission makes an alternate determination. (Code 1982, § 10.24.010; Ord. No. 1758, § 1(10.24.010), 4-20-2009) Sec. 36.07.020. Specific speed restriction areas. A. Subject to the provisions of section 36.07.010, and except in those instances where a lower speed is specified in this article, it shall be prima facie lawful for the driver of a vehicle to operate the same at a speed not exceeding the following, except in any case when such speed would be unsafe due to presently existing conditions: 1. General limit. The speed limit is 25 miles an hour on all streets within the city limits unless otherwise posted. 2. Maximum speed. The maximum speed limit is 40 miles an hour on any street within the city limits, unless otherwise posted and as excepted by subsection 3 of this section. 3. Highways. There are various highways within the city limits of the city over which the state transportation commission has authority to establish speed limits. These speed limits are posted by the state department of transportation as authorized in MCA 61-8-310. It shall be unlawful to operate a motor vehicle at a speed less than 15 miles an hour on any through or arterial highway. 4. Intersections. Speed limits at intersections are 15 miles per hour when: a. Making a right or left hand turn at any intersection of streets; b. Approaching within 50 feet of any intersection of streets when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when, at any time during the last 50 feet of the approach to such intersection, the driver does not have a clear and uninterrupted view of such intersection and of the traffic upon all of the streets entering such intersection for a distance of 200 feet from such intersection; and c. At any uncontrolled intersection. 5. Graduated speed zones. There are created in the city graduated speed zones, the limits of which are more particularly described in section 36.07.050, wherein it is unlawful for any operator of any vehicle to drive at a speed greater than the speed stipulated in said section. As provided in section 36.07.010.A.1, graduated speed zones may be established by the city commission by commission resolution. 6. Railway grade crossings. Speed limit is 15 miles an hour when approaching within 15 feet of a grade crossing of any railway when the driver's view is obstructed. A driver's view shall be deemed to be obstructed when at any time during the last 200 feet of the driver's approach to such crossing, the driver does not have a clear and uninterrupted view of such railway crossing and of any traffic on such railway crossing, and of any traffic on such railway for a distance of 400 feet in each direction from such crossing. 7. School speed zones. There are created in the city school speed zones, the limits of which are more particularly described in section 36.07.030, wherein it is unlawful PROOFS Page 457 of 977 for any operator of any vehicle to drive at a speed greater than the speed established in said section between the hours of 8:00 a.m. and 4:30 p.m. on days or parts of days when school is in session. 8. Public park speed zones. There are created in the city, park speed zones, the limits of which are more particularly described in section 36.07.040, wherein it is unlawful for any operator of any vehicle to drive at a speed greater than the speed established in said section, between the hours of 8:00 a.m. and 8:00 p.m., on streets immediately adjacent to public parks, when signs are posted giving notice thereof. 9. Curves, grades, alleys and in cemetery. Speed limit is 15 miles an hour when traversing or going around curves, or traversing a grade upon a street when the driver's view is obstructed within a distance of 100 feet along such street or highway in the direction in which the driver is proceeding, in all alleys within the city, and within the Sunset Hills Cemetery. (Code 1982, § 10.24.020; Ord. No. 1758, § 2(10.24.020), 4-20-2009) Sec. 36.07.030. School speed zones designated Schedule II. A. In accordance with the provisions of section 36.07.020.A.5, it is unlawful for any operator of any vehicle to drive at a speed greater than that designated below or as designed by a commission resolution pursuant to section 36.07.010.A.1, when such speed limit is properly posted between the hours of 8:00 a.m. and 4:30 p.m. on days or parts of days when school is in session, on the streets or parts of streets specified in the following school speed zones: 1. Bozeman Senior High School speed zone. Speed limit is 15 miles per hour on: All that part of North Eleventh Avenue between West Main Street and a line 300 feet south of the south line of Durston Road; and all that part of West Villard Street between a line 150 feet east of the east line of North Eleventh Avenue and the east line of North Eleventh Avenue; 2. Hawthorne School speed zone. Speed limit is 15 miles per hour on: All that part of East Lamme Street between a line 150 feet east of the east line of North Church Avenue and a line 150 feet west of the west line of North Rouse Avenue; all that part of East Mendenhall Street between a line 150 feet east of the east line of North Church Avenue and a line 150 feet west of the west line of North Rouse Avenue; all that part of North Church Avenue between a line 150 feet south of the south line of East Mendenhall Street and a line 150 feet north of the north line of East Lamme Street; 3. Irving School speed zone. Speed limit is 15 miles per hour on: All that part of South Eighth Avenue between a line 150 feet south of the south line of West Alderson Street and a line 150 feet north of the north line of West Dickerson Street; all that part of South Ninth Avenue between a line 150 feet south of the south line of West Alderson Street and a line 150 feet north of the north line of West Dickerson Street; all that part of West Alderson Street between a line 150 feet east of the east line of South Eighth Avenue and a line 150 feet west of the west line of South Ninth Avenue; all that part of West Dickerson Street between a line 150 feet east of the east line of South Eighth Avenue and a line 150 feet west of the west line of South Ninth Avenue; 4. Longfellow School speed zone. Speed limit is 15 miles per hour on: All that part of Tracy Avenue between a line 20 feet south of the south line of East Story Street to a line 320 feet north of the north line of East College Street; all that part of East Dickerson Street between the west line of South Tracy Avenue and a line 100 feet PROOFS Page 458 of 977 west of the west line of East Tracy Avenue; all that part of East Story Street 100 feet east of the east curbline of East Tracy Avenue; 5. Whittier School speed zone. Speed limit is 15 miles per hour on: All that part of West Peach Street between a line 150 feet east of the east line of North Fifth Avenue and a line 150 feet west of the west line of North Sixth Avenue; all that part of Sixth Avenue between the north line of West Peach Street and a line 200 feet north of the north line of West Villard Street; all that part of North Fifth Avenue between a line 150 feet north of the north line of West Peach Street and a line 200 feet north of the north line of West Villard Street; all that part of West Short Street between a line 150 feet west of the west line of North Sixth Avenue and a line 150 feet east of the east line of North Fifth Avenue; all that part of the alley adjacent to and parallel to the south line of the Whittier School grounds in Block 4 of the Violett Addition; 6. Willson School/Bridger Alternative High School speed zone. Speed limit is 15 miles per hour on: All that part of South Third Avenue between the south line of West Main Street and the north line of West Babcock Street; 7. Emily Dickinson School speed zone. Speed limit is 15 miles per hour on: All that part of Annie Street between North 25th Avenue and a line 275 feet west of the east boundary of Brentwood Avenue; all that part of North 25th Avenue between Rogers Way and the north property line of the school; 8. Morning Star School speed zone. Speed limit is 15 miles per hour on: All that part of Arnold Street between the west line of Westridge Drive to the west line of the school property; 9. Sacagawea Middle School speed zone. a. Speed limit is 15 miles per hour on: All that part of Cambridge Drive from the west line of South Third Avenue to the west line of the school property; b. Speed limit is 25 miles per hour on all that part of South Third Avenue from 200 feet north of Cambridge Drive to 200 feet south of Dartmouth Drive during days and times of day so noted on the changeable speed limit signs installed on South Third Avenue; 10. Chief Joseph Middle School speed zone. Speed limit is 15 miles per hour on: All that part of Kimberwicke Street between the west line of Ferguson Avenue and a line 300 feet east of Arabian Avenue; and all that part of Ferguson Avenue between the south line of Kimberwicke Street and the north line of Cattail Street; 11. Hyalite School Speed Zone. Speed limit is 20 miles per hour on: All that part of West Babcock Street from 150 feet east of Sheridan Place to 150 feet west of Yellowstone Avenue. (Ord. No. 1758, § 5(10.24.030), 4-20-2009) Sec. 36.07.040. Public park speed zones. A. In accordance with the provisions of section 36.07.020.A.8, or any applicable subsequent commission resolution, pursuant to section 36.07.010.A.3, it is unlawful for any operator of any vehicle to drive at a speed greater than 15 miles per hour unless otherwise specifically designated between the hours of 8:00 a.m. and 8:00 p.m. on the streets or parts of streets immediately adjacent to the applicable public parks, as specified in the following public parks speed zones: 1. Aasheim Fields Park speed zone. All that part of Fowler Avenue from the south line of West Babcock Street to the southern boundary of Aasheim Fields Park. PROOFS Page 459 of 977 2. Beall Park speed zone. All that part of East Villard Street from the west line of North Black Avenue to the east line of North Bozeman Avenue; all that part of North Bozeman Avenue from the south line of East Villard Street to the north line of East Short Street; all that part of East Short Street from the east line of North Bozeman Avenue to the west line of North Black Avenue; all that part of North Black Avenue from the north line of East Short Street to the south line of East Villard Street. 3. Bogert Park speed zone. On South Church Avenue from the north line of Bogert Park to a point approximately 100 feet south of Bogert Place. 4. Centennial Park speed zone. All that part of North Tracy Avenue from Cottonwood Street to the north line of Centennial Park; all that part of Cottonwood Street from the east line of North Tracy Avenue to the west line of North Grand Avenue; all that part of North Grand Avenue from the south line of Cottonwood Street to the north line of Centennial Park. 5. Christie Fields Park speed zone. All that part of East Mason Street from the west line of South Black Avenue to the east line of South Rouse Avenue; all that part of South Rouse Avenue from the south line of East Mason Street to the north line of Christie Field Park; all that part of South Black Avenue from the south line of East Mason Street to the north line of Christie Field Park. 6. Cooper Park speed zone. All that part of South Eighth Avenue from a line 150 north of West Dickerson Street to the south line of West Koch Street. 7. Farmall Street Park speed zone. All that part of Farmall Street from the west line of Springbrook Avenue to the east line of Durham Avenue; all that part of Durham Avenue from the south line of Farmall Street to the north boundary of Farmall Street Park, which is approximately 500 feet north of the south line of Farmall Street; all that part of Springbrook Avenue from the south line of Farmall Street to the north line of Farmall Street Park; which is approximately 500 feet north of the south line of Farmall Street. 8. Kirk Park speed zone. All that part of West Beall Street from the east line of North 20th Avenue to the west line of Kirk Park; all that part of North 20th Avenue from a point approximately 300 feet north of the north line of West Main Street to the north line of West Beall Street. 9. Lindley Park speed zone. All that part of Buttonwood Avenue from the south line of East Main Street to the entrance to the Sunset Hills Cemetery; all that part of Cypress Avenue from the south line of East Main Street to the south line of East Curtiss Street. 10. Meyers Park speed zone. All that part of Hanley Avenue from the north line of West Babcock Street to the south line of Brenden Street; all that part of Clifden Drive from the north line of West Babcock Street to the south line of Brisbin Street; all that part of Cascade Street between the west line of Hanley Avenue to the east line of Clifden Drive. 11. Oak Springs Subdivision Park speed zone. All that part of Jardine Avenue from the north line of Annie Street to its intersection with Palm Street; all that section of Palm Street from its intersection with Jardine Avenue to the east line of Yellowstone Avenue; all that part of Yellowstone Avenue from the south line of Palm Street to the north line of Renova Lane; all that part of Renova Lane from the east line of Yellowstone Avenue to the west line of Oak Springs Subdivision Park. PROOFS Page 460 of 977 12. Westlake BMX Park speed zone. All that part of North Fifth Avenue from a line 150 feet north of Peach Street to the south line of Tamarack Street. (Ord. No. 1758, § 7(10.24.040), 4-20-2009) Sec. 36.07.050. Graduated speed zones designated Schedule IV. A. In accordance with the provisions of section 36.07.020.A.5, or any applicable subsequent commission resolution, it is unlawful for any operator of any vehicle to drive at a speed greater than designated below upon the following streets: 1. West Babcock Street. The speed limit is 30 miles per hour on all that part of West Babcock Street from the west line of West Main Street to the east line of Cottonwood Road. 2. Baxter Lane. a. The speed limit is 35 miles per hour from the west line of North Seventh Avenue to a point approximately 1,000 feet west of North Seventh Avenue. b. The speed limit is 45 miles per hour from a point approximately 1,000 feet west of North Seventh Avenue to a point approximately 1,200 east of North Nineteenth Avenue. c. The speed limit is 35 miles per hour from a point approximately 1,200 feet east of North Nineteenth Avenue to the east line of North Nineteenth Avenue. d. The speed limit is 30 miles per hour from the western line of North Nineteenth Avenue to a point approximately 1,100 feet west of North Nineteenth Avenue. e. The speed limit is 45 miles per hour from a point approximately 1,100 feet west of North Nineteenth Avenue to a point approximately 1175 feet east of Gallatin Green Boulevard. f. The speed limit is 40 miles per hour from a point approximately 550 feet east of Flanders Mill Road west to the city limits. 3. Bozeman Trail Road. The speed limit is 40 miles per hour from the west line of Haggerty Lane to the north line of Kagy Boulevard. 4. Bridger Drive/Bridger Canyon Road. a. The speed limit is 35 miles per hour from the junction of Bridger Drive/Bridger Canyon Road with North Rouse Avenue296 to a point approximately 550 feet east of Story Mill Road. b. The speed limit is 45 miles per hour from a point approximately 550 feet east of Story Mill Road to a point approximately 600 feet east of Creekwood Drive. c. The speed limit is 60 miles per hour from a point approximately 600 feet east of Creekwood Drive east to the city limits. 5. West College Street. The speed limit is 35 miles per hour from the west line of South Nineteen Avenue to the south line of West Main Street. 296 The junction of Bridger Drive and what? Please review the language here and notify us of any desired changes. The semi-colon should be replace with a “/.” Bridger Drive is also referred to as “Bridger Canyon Road.” PROOFS Page 461 of 977 6. Cottonwood Road. a. The speed limit is 40 miles per hour from Durston Road south to a point approximately 100 feet north of Fallon Street. b. The speed limit is 35 miles per hour from a point approximately 100 feet north of Fallon Street to Huffine Lane. c. The speed limit is 40 miles per hour from Huffine Lane south to the city limits. 7. Davis Lane. The speed limit is 35 miles per hour from the north line of West Oak Street to the south line of East Valley Center Road. 8. Durston Road. a. The speed limit is 30 miles per hour from the west line of North 7th Avenue to the east line of Ferguson Avenue. (As this is an Urban route, this speed limit will not be posted (signed) until the Montana Transportation Commission approves the change.) b. The speed limit is 35 miles per hour from the west line of Ferguson Avenue west to the city limits. c. The speed limit is 20 miles per hour during certain hours of school days as signed, from 1250 feet east of North 25th Avenue to 250 feet west of North 25th Avenue. 9. Ferguson Avenue. The speed limit is 35 miles per hour from the north line of Huffine Lane to the south line of Durston Road. 10. Fowler Avenue. The speed limit is 35 miles per hour from the south line of Huffine Lane to the north line of Garfield Street. 11. East Frontage Road. a. The speed limit is 60 miles per hour from the junction of East Frontage Road with North Seventh Avenue, northwest to the city limits. b. The speed limit is 50 miles per hour from the junction of East Frontage Road with East Main Street, approximately 350 feet east of Haggerty Lane, to a point approximately 100 feet east of Hospitality Way. c. The speed limit is 60 miles per hour from a point approximately 100 feet east of Hospitality Way east to the city limits. 12. Garfield Street. The speed limit is 35 miles per hour from the west line of South Nineteenth Avenue to the south line of Fowler Avenue. 13. Griffin Drive. The speed limit is 35 miles per hour from the east line of North Seventh Avenue to the west line of North Rouse Avenue. 14. Haggerty Lane. a. The speed limit is 40 miles per hour from the west line of Bozeman Trail Road to Ellis Street. b. The speed limit is 35 miles per hour from Ellis Street northwesterly a distance of approximately 675 feet. 15. Highland Boulevard. The speed limit is 35 miles per hour from the north line of New Hyalite View Subdivision to a point approximately 225 feet south of East Curtiss Street. PROOFS Page 462 of 977 16. Huffine Lane. a. The speed limit is 45 miles per hour from the junction of Huffine Lane with West Main Street to a point approximately 260 feet west of Ferguson Avenue. b. The speed limit is 55 miles per hour from a point approximately 260 feet west of Ferguson Avenue to a point approximately 850 feet west of Cottonwood Road. c. The speed limit is 65 miles per hour from a point approximately 1850 feet west of Cottonwood Road west to the city limits. 17. Kagy Boulevard. a. The speed limit is 35 miles per hour from the east line of South Nineteenth Avenue to a point approximately 875 feet east of Highland Boulevard. b. The speed limit is 40 miles per hour from a point approximately 875 feet east of Highland Boulevard to Bozeman Trail Road. 18. East Main Street. The speed limit is 40 miles per hour from a point approximately 300 feet east of Cypress Avenue to the junction of East Main Street with East Frontage Road, approximately 350 feet east of Haggerty Lane. 19. West Main Street. a. The speed limit is 35 miles per hour from a point approximately 320 feet east of North Fifteenth Avenue to the west line of South 23rd Avenue. b. The speed limit is 45 miles per hour from the west line of South 23rd Avenue to the junction of West Main Street with Huffine Lane. 20. Manley Road. The speed limit is 35 miles per hour from the north line of Griffin Drive north to the city limits. 21. McIllhattan Road. The speed limit is 30 miles per hour from the west line of Story Mill Road northwest to the city limits. 22. North Nineteenth Avenue. a. The speed limit is 35 miles per hour from the south line of Durston Road to approximately 500 feet north of Durston Road. b. The speed limit is 40 miles per hour from a point approximately 500 feet north of the south line of Durston Road to Springhill Road. 23. South Nineteeth Avenue. a. The speed limit is 35 miles per hour from the north line of West Main Street to the south line of West College Street. b. The speed limit is 45 miles per hour from the south line of West College Street to the north line of Kagy Boulevard. c. The speed limit for southbound traffic south of Kagy Boulevard is: (1) 45 miles per hour from Kagy Boulevard to a point approximately 330 feet south of Kagy Boulevard. (2) 60 miles per hour from a point approximately 330 feet south of Kagy Boulevard south to the city limits. d. The speed limit for northbound traffic south of Kagy Boulevard is: (1) 45 miles per hour from Kagy Boulevard to a point approximately 875 PROOFS Page 463 of 977 feet south of Kagy Boulevard. (2) 60 miles per hour from a point approximately 1875 feet south of Kagy Boulevard south to the city limits. 24. Oak Street. a. The speed limit is 35 miles per hour from the west line of North Rouse Avenue to the east line of North Eleventh Avenue. b. The speed limit is 45 miles per hour from the east line of North Eleventh Avenue to the east line of North Nineteenth Avenue. c. The speed limit is 35 miles per hour from the west line of North Nineteenth Avenue to the west line of New Holland Drive. 25. North Rouse Avenue. The speed limit is 35 miles per hour from a point approximately 430 feet north of East Oak Street to the junction of North Rouse Avenue with Bridger Drive. 26. North Seventh Avenue. a. The speed limit is 35 miles per hour from a point approximately 380 feet north of Durston Road to a point approximately 610 feet north of West Oak Street. b. The speed limit is 45 miles per hour from a point approximately 610 feet north of West Oak Street to a point approximately 1,720 feet north of Griffin Drive. c. The speed limit is 60 miles per hour from a point approximately 1,720 feet north of Griffin Drive to the junction of North Seventh Avenue with East Frontage Road. 27. Simmental Way. The speed limit is 35 miles per hour from the north line of Baxter Lane to the terminus of Simmental Way. 28. Springhill Road. The speed limit is 35 miles per hour from East Frontage Road north to the city limits. 29. Story Mill Road. The speed limit is 35 miles per hour from the north line of Bridger Drive north to the city limits. 30. South Third Avenue. The speed limit is 35 miles per hour from the south line of Graf Street to the south side of Wagonwheel Road. 31. East Valley Center Road. a. The speed limit is 45 miles per hour from North Nineteenth Avenue west a distance of approximately 2,830 feet. b. The speed limit is 50 miles per hour from a point approximately 2,830 feet west of North Nineteenth Avenue to a point approximately 290 feet east of North 27th Avenue. c. The speed limit is 60 miles per hour from a point approximately 290 feet east of North 27th Avenue west to the city limits. (Ord. No. 1758, § 8(10.24.050), 4-20-2009) Sec. 36.07.060. Enforcement; penalty for violation. A. It is a misdemeanor for any person to violate any provision of this article. PROOFS Page 464 of 977 B. Every person convicted of a misdemeanor for a violation of this article shall be punished by a fine not less than $50.00 or more than $250.00, according to the following schedule: A speed of 0-10 mph over the posted speed limit. . . . . . . . . . $50.00 A speed of 11-20 mph over the posted speed limit. . . . . . . . . $70.00 A speed of 21-30 mph over the posted speed limit. . . . . . . . . $90.00 A speed over 30 mph of the posted speed limit. . . . . . . . . . . .$100.00 School Zones and Park Zones A speed of 0-10 mph over the posted speed limit. . . . . . . . . $75.00 A speed of 11-20 mph over the posted speed limit. . . . . . . . .$95.00 A speed over 20 mph of the posted speed limit. . . . . . . . . . . $125.00 C. For a second or subsequent violation of a speed regulation within a three year period, the fine shall be not less than $70.00 or more than $250.00, according to the following schedule: A speed of 0-10 mph over the posted speed limit. . . . . . . . . . $70.00 A speed of 11-20 mph over the posted speed limit. . . . . . . . . $100.00 A speed of 21-30 mph over the posted speed limit. . . . . . . . . $130.00 A speed over 30 mph of the posted speed limit. . . . . . . . . . . .$160.00 School Zones and Park Zones A speed of 0-10 mph over the posted speed limit. . . . . . . . . . $85.00 A speed of 11-20 mph over the posted speed limit. . . . . . . . . $115.00 A speed over 20 mph of the posted speed limit. . . . . . . . . . . . $140.00 (Ord. No. 1758, § 9(10.24.060), 4-20-2009) ARTICLE 8. STOP INTERSECTIONS297 Sec. 36.08.010. Determination and designation. The director of public services or the director's designee is authorized to determine and designate intersections where particular hazard exists and to determine whether vehicles should stop at one or more entrances to any intersection. Should the director determine, upon the basis of traffic engineering principals and traffic investigations and in accordance with such standards, limitations and rules as may be set forth in this article a stop is necessary, then, the director has the authority to place stop signs at all intersections deemed necessary. In addition to the foregoing, the city commission may, by passing an ordinance or a resolution, require a stop at any intersection they deem necessary. (Code 1982, § 10.28.010; Ord. No. 1553, § 1, 1-14-2002) 10.28.020. Vehicles to stop at stop signs. When stop signs are erected as provided in this chapter at or near the entrance at any intersection, every driver of a vehicle shall stop such vehicle at such sign or at a clearly marked stop line before entering the intersection except when directed to proceed by a police officer or traffic control signal. 297 Note deleted sections requested by city staff. PROOFS Page 465 of 977 (Code 1982, § 10.28.020) Sec. 36.08.020. Intersections with arterial and through streets. The director of public services or the director's designee is authorized to determine and designate what streets with appropriate signage within the corporate city limits of the city will be designated through or arterial streets. Whenever possible, such determination should be based upon traffic engineering principles and investigations. (Code 1982, § 10.28.030; Ord. No. 1553, § 2, 1-14-2002) 10.28.050. Stop signs--described--location. Every sign erected pursuant to this title, which sign requires a vehicle to come to a stop, shall bear the word "stop" in letters not less than eight inches in height, and such sign shall at nighttime be rendered luminous by steady or flashing internal illumination, or by a fixed floodlight projected on the face of the sign, or by efficient reflecting elements on the face of the sign. Every stop sign shall be located as near as practicable at the nearest line of the crosswalk on the near side of the intersection or, if none, at the nearest line of the roadway. (Code 1982, § 10.28.050) 10.28.060. Procedure for entering intersections. __ After the driver of a vehicle has stopped at the entrance to a through or arterial highway, such driver shall yield the right-of-way to other vehicles which have entered the intersection from the through or arterial highway or which are approaching so closely on the through or arterial highway as to constitute an immediate hazard, but the driver having so yielded may proceed, and the drivers of all other vehicles approaching the intersection on the through or arterial highway shall yield the right-of-way to the vehicle so proceeding into or across the through or arterial highway. __ After the driver of a vehicle has stopped in obedience to a stop sign at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through or arterial highway, such driver shall proceed cautiously, yielding to vehicles not so obligated to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed. (Code 1982, § 10.28.060) 10.28.070. Entering intersection prohibited when traffic obstructed. No driver shall enter an intersection or a marked crosswalk unless there is sufficient space on the other side of the intersection or cross-walk to accommodate the vehicle he is operating without obstructing the passage of other vehicles or pedestrians, notwithstanding any traffic control signal indication to proceed. (Code 1982, § 10.28.070) 10.28.090. Railway crossings--stop required when. __ Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within 50 feet but not less than 15 feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when: __ A clearly visible electric or mechanical signal-device gives warning of the immediate approach of a railroad train; __ A crossing gate is lowered, or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train; PROOFS Page 466 of 977 __ A railroad train approaching within approximately fifteen hundred feet of the highway crossing emits a signal audible from such distance, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard; __ An approaching railroad train is plainly visible and is in hazardous proximity to such crossing. __ No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad grade crossing while such gate or barrier is closed or is being opened or closed. (Code 1982, § 10.28.090) 10.28.100. Railway crossings--mandatory stops for certain vehicles. The operator of any motor bus carrying passengers for hire, and the operator of any school bus carrying any school child, and the operator of any motor truck carrying explosive substances or explosive liquids of any specific gravity as a cargo or part of a cargo, and the operator of any vehicle of the tractor or caterpillar types, other than a truck tractor, shall, before crossing at grade any track or tracks of a steam or interurban electric railway, bring such vehicle to a stop not less than ten feet or more than 50 feet from the nearest rail of such track, and, while stopped, shall both look and listen in both directions along such track for approaching steam or interurban electric trains or cars before traversing such crossings. (Code 1982, § 10.28.100) ARTICLE 9. TRUCK TRAFFIC Sec. 36.09.010. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 1. "Axle" means a transverse beam which is the common axis of rotation of one or more wheels and which, to receive credit for allowable total gross loading, must be capable of continuously transmitting a proportionate share of the total gross load to the roadway when the axle is in operation. 2. "Deviating truck" means a truck which leaves and departs from a truck route while traveling inside the city. 3. "Local delivery" means a delivery of goods or other property to a warehouse, carrier or other person in the ordinary course of business to a specific location upon a specific street within the city limits. 4. "Trailer" means every vehicle, with or without motor power, designed for carrying property and for being drawn by a motor vehicle. For the purposes of this article, the term includes only trailers with three or more axles and designed to carry property wholly on its own structure which must be drawn by a motor vehicle. 5. "Truck" means any vehicle designed, used, maintained or operated for the primarily for the transportation of personal property and, for the purposes of this article, has three or more axles. The term "truck" as used in this article will also include any vehicle pulling a trailer as defined herein. 6. "Through truck traffic" means any truck traffic which does not have a destination point on the street upon which it is traveling. 7. "Truck route" means a way over certain streets, as designated by ordinance, over and along which trucks coming into, going out of and traveling within the city must PROOFS Page 467 of 977 operate. (Ord. No. 1553, § 3(10.42.010), 1-14-2001) Sec. 36.09.020. Application of article. This article will apply to all trucks as defined herein or any vehicle pulling trailers as defined. (Ord. No. 1553, § 3(10.42.020), 1-14-2001) Sec. 36.09.030. Traffic within the city. A. Through truck traffic is prohibited upon any street which is not a designated truck route except: 1. All trucks on a trip originating in the city will proceed on the shortest route possible to a street upon an established truck route. 2. All trucks entering the city will proceed over an established truck route and will deviate only at the intersection with the street nearest to the destination point. Upon leaving the destination point, a deviating truck must travel to its next destination or the nearest truck route, whichever is closest, by the shortest route possible. (Ord. No. 1553, § 3(10.42.030), 1-14-2001) Sec. 36.09.040. Exceptions. A. This article does not prohibit the operation of: 1. Trucks where necessary to conduct business at a point of destination. 2. Emergency vehicles upon any street in the city. 3. Trucks upon any detour properly established by the city. 4. School buses being driven to either pick up or deliver students to the school or their homes. (Ord. No. 1553, § 3(10.42.040), 1-14-2001) Sec. 36.09.050. Routes established. The commission will designated truck routes and alternate truck routes by separate resolution. Additionally, the commission, in its discretion, may prohibit truck traffic on specific streets. The director of public services or designee will ensure the proper signing of all routes, including but not limited to any streets which are prohibited to truck traffic, for local delivery only and truck routes. (Ord. No. 1553, § 3(10.42.050), 1-14-2001) Sec. 36.09.060. Maps indicating routes. The city clerk of the commission will keep and maintain accurate maps setting out truck routes and streets upon which truck traffic is permitted. All maps will be made available to the public. (Ord. No. 1553, § 3(10.42.060), 1-14-2001) Sec. 36.09.070. Enforcement. Violations of this article will be punishable as set forth in section 36.02.030. (Ord. No. 1553, § 3(10.42.080), 1-14-2001) PROOFS Page 468 of 977 ARTICLE 10. BICYCLES Sec. 36.10.010. Regulations applicable; responsibility of parents and guardians. A. It is a violation of this article for any person to do any act forbidden or fail to perform any act required in this article. B. The parent of any child and the guardian of any ward shall not authorize or knowingly permit any such child or ward to violate any of the provisions of this article. C. These regulations applicable to bicycles shall apply whenever a bicycle is operated upon any street or upon any public path set aside for the exclusive use of bicycles, subject to those exceptions stated in this article. (Code 1982, § 10.48.010) 10.48.020. License--required298. No person who resides within the city shall ride or propel a bicycle on any street or upon any public path set aside for the exclusive use of bicycles unless such bicycle has been licensed and a license plate is attached thereto as provided in this chapter. (Code 1982, § 10.48.020) 10.48.030. License--application and fee. Applications for a bicycle license and license plate shall be made upon a form provided by the city and shall be made to the chief of police. An annual license fee of twenty-five cents shall be paid to the city before each license or renewal thereof is granted. (Code 1982, § 10.48.030) 10.48.040. License--issuance conditions--recordkeeping. __ The chief of police, upon receiving proper application therefor, is authorized to issue a bicycle license, which shall be effective until the next succeeding first day of January. __ The chief of police shall not issue a license for any bicycle when he knows or has reasonable grounds to believe that the applicant is not the owner of or entitled to the possession of such bicycle. __ The chief of police shall keep a record of the number of each license, the date issued, the name and address of the person to whom issued, and the number on the frame of the bicycle for which issued, and a record of all bicycle license fees collected by him. (Code 1982, § 10.48.040) 10.48.050. Attachment of license plate. __ The chief of police, upon issuing a bicycle license, shall also issue a license plate bearing the license number assigned to the bicycle, the name of the city, the calendar year for which issued and the expiration date thereof. __ The chief of police shall cause such license plate to be firmly attached to the rear mudguard or frame of the bicycle for which issued, in such position as to be plainly visible from the rear. __ No person shall remove a license plate from a bicycle during the period for which issued except upon a transfer of ownership or in the event the bicycle is dismantled and no longer operated upon any street in the city. 298 Do you still license bicycles? No. Delete the license sections. PROOFS Page 469 of 977 (Code 1982, § 10.48.050) 10.48.060. Inspection prerequisite to licensing. The chief of police, or an officer assigned such responsibility, shall inspect each bicycle before licensing the same, and shall refuse a license for any bicycle which he determines is in an unsafe mechanical condition. (Code 1982, § 10.48.060) 10.48.070. Transfer of ownership. Upon the sale or other transfer of a licensed bicycle the licensee shall remove the license plate and shall either surrender the same to the chief of police or may, upon proper application and payment of additional fee of twenty-five cents, have the plate assigned to another bicycle owned by the applicant. (Code 1982, § 10.48.070) 10.48.080. Rental agency requirements. A rental agency shall not rent or offer any bicycles for rent unless the bicycle is licensed and a license plate is attached thereto as provided herein and such bicycle is equipped with the lamps and other equipment required in this chapter. (Code 1982, § 10.48.080) Sec. 36.10.020. Traffic laws applicable. Every person riding a bicycle upon a street or roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by the laws of this state declaring rules of the road applicable to vehicles, or by the traffic ordinances of the city applicable to the driver of a vehicle, except as to special regulations in this chapter, and except as to those provisions of laws which by their nature can have no application. (Code 1982, § 10.48.090) Sec. 36.10.030. Obedience to traffic control devices required. A. Any person operating a bicycle shall obey the instructions of official traffic control signals, signs and other control devices applicable to vehicles, unless otherwise directed by a police officer. B. Whenever authorized signs are erected indicating that no right or left or U-turn is permitted, no person operating a bicycle shall disobey the direction of any such sign, except where such person dismounts from the bicycle to make any such turn, in which event such person shall then obey the regulations applicable to pedestrians. (Code 1982, § 10.48.100) Sec. 36.10.040. Operation restrictions. A. A person propelling a bicycle shall not ride other than astride a permanent and regular seat attached thereto. B. No bicycle shall be used to carry more persons at one time than the number for which it is designed and equipped. (Code 1982, § 10.48.110) Sec. 36.10.050. Riding on streets, roadways and bicycle paths; restrictions. A. Every person operating a bicycle upon a street or roadway shall ride as near to the right-hand side of the roadway as practicable, exercising due care when passing a standing vehicle PROOFS Page 470 of 977 or one proceeding in the same direction. B. Persons riding bicycles upon a street or roadway shall not ride more than two abreast except on paths or parts of roadways set aside for the exclusive use of bicycles. C. Whenever a usable path for bicycles has been provided adjacent to a street or roadway, bicycle riders shall use such path and shall not use the street or roadway. (Code 1982, § 10.48.120) Sec. 36.10.060. Speed limits. No person shall operate a bicycle at a speed greater than is reasonable and prudent under the conditions then existing. (Code 1982, § 10.48.130) Sec. 36.10.070. Yield right-of-way upon crossing sidewalk or entering roadway. The operator of a bicycle emerging from an alley, driveway or building shall, upon approaching a sidewalk or the sidewalk area extending across any alleyway, yield the right-of-way to all pedestrians approaching on the sidewalk or sidewalk area, and, upon entering the roadway, shall yield the right-of-way to all vehicles approaching on the roadway. (Code 1982, § 10.48.140) Sec. 36.10.080. Clinging to vehicles prohibited. No person riding upon any bicycle shall attach the same or himself/herself299 to any vehicle upon a street or roadway. (Code 1982, § 10.48.150) Sec. 36.10.090. Carrying articles; limitation. No person operating a bicycle shall carry any package, bundle or article which prevents the rider from keeping at least one hand upon the handlebars. (Code 1982, § 10.48.160) Sec. 36.10.100. Parking. No person shall park a bicycle upon a street other than upon the roadway against the curb, or upon the sidewalk in a rack to support the bicycle, or against a building, or at the curb, in such manner as to afford the least obstruction to pedestrian traffic. No person shall park a bicycle against a glass window at any time. (Code 1982, § 10.48.170) Sec. 36.10.110. Riding on sidewalks; restrictions. A. No person shall ride a bicycle upon any sidewalk within the main business district. B. No person over the age of 15 years shall ride any bicycle upon any sidewalk within the city. C. Whenever any person is riding a bicycle upon a sidewalk, such person shall yield the right-of-way to any pedestrian, and shall give audible signal before overtaking and passing such pedestrian. (Code 1982, § 10.48.180) 299 Unable to reword this language, so we have added "/herself" in order to make it gender neutral. Edit is OK. PROOFS Page 471 of 977 Sec. 36.10.120. Brakes and lights. A. Every bicycle, when in use at nighttime, shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least 200 feet to the front and with a red reflector on the rear of a type which shall be visible from all distances from 50 feet to 300 feet to the rear when directly in front of lawful upper beams of headlamps on a motor vehicle. A lamp emitting a red light visible form a distance of 300 feet to the rear may be used in addition to the red reflector. B. Every bicycle shall be equipped with a brake which will enable the operator to make the braked wheel skid on dry, level, clean pavement. (Code 1982, § 10.48.190) Sec. 36.10.130. Violation; penalty; violations by minors300. Every person, firm or corporation convicted of violation of any of the provisions of this article shall be punished by a fine not exceeding $300.00 or by imprisonment in the city or county jail for a period not exceeding 90 days, or by both such fine and imprisonment, except in the case of violation by minors under the age of 18 years. In case of violation by any minor, or by any other person, a police officer is given the authority and power to remove and detain the license plate of such person's bicycle for a period not exceeding 30 days, or to take possession of and impound such person's bicycle so operated by the violator at the time of such violation, for a period not exceeding 30 days, or by any combination thereof, or such minor may be dealt with in accordance with the provisions of the laws of the state governing juvenile delinquents. (Code 1982, § 10.48.200) ARTICLE 11. PEDESTRIANS Sec. 36.11.010. Pedestrians subject to restrictions and traffic control signals. Pedestrians shall be subject to traffic control signals, but at all other places pedestrians shall be granted those rights and be subject to the restrictions stated in this article. (Code 1982, § 10.52.010) Sec. 36.11.020. Crosswalks. A. Pedestrian right-of-way. 1. When traffic control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle, which is so close that is impossible for the driver to yield. 2. Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle. B. Method of use. Pedestrians shall move, whenever practicable, upon the right half of 300 Use the general penalty instead? Leave this section. PROOFS Page 472 of 977 crosswalks. (Code 1982, §§ 10.52.020, 10.52.030) Sec. 36.11.030. Crossing roadways. A. Shortest route required. No pedestrian shall cross a roadway at any place other than by a route at right angles to the curb or by the shortest route to the opposite curb, except in a crosswalk. B. Yielding right-of-way required when. 1. Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right- of-way to all vehicles upon the roadway. 2. The rules in subsection B.1 of this section have no application under the conditions stated in subsection C of this section when pedestrians are prohibited from crossing at certain designated places. C. Locations where prohibited. 1. Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a crosswalk. 2. No pedestrians shall cross a roadway other than in a crosswalk in Parts I and II of the business district, or on any through or arterial street or avenue. (Code 1982, §§ 10.52.040--10.52.060) Sec. 36.11.040. Walking along roadways; conditions; soliciting rides prohibited. A. Where sidewalks are provided, it is unlawful for any pedestrian to walk along and upon an adjacent roadway. B. Where sidewalks are not provided, any pedestrian walking along and upon a highway shall, when practicable, walk only on the left side of the roadway or its shoulder, facing traffic which may approach from the opposite direction. C. No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any vehicle. (Code 1982, § 10.52.070) Sec. 36.11.050. Driver precautions for pedestrian safety. Notwithstanding the foregoing provisions of this article, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. (Code 1982, § 10.52.080) ARTICLE 12. TRAFFIC ACCIDENTS AND VIOLATIONS Sec. 36.12.010. Report accidents immediately. The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $100.00 or more, shall immediately, by the quickest means of communication, give notice of such accident to the police department if such accident occurs within this city. (Code 1982, § 10.56.010) PROOFS Page 473 of 977 Sec. 36.12.020. Duty to stop in event of accident; penalty for violation. A. The driver of any vehicle involved in an accident resulting in injury or death to any person or damage to property shall immediately stop such vehicle at the scene of the accident, and shall give such driver's name and address and registration number of such driver's vehicle to the person struck or to the driver or occupants of any vehicle collided with, or other persons owning or in possession of other property damaged, and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or is requested by the injured person. B. Every person convicted under this section upon a charge of failure to stop after an accident resulting in injury or death of any person shall be punished by imprisonment in the city jail for not less than ten days nor more than 90 days, or by a fine of not exceeding $300.00, or by both such fine and imprisonment. Any person convicted under this section upon a charge of failure to stop after an accident resulting in damage to property shall be punished by imprisonment in the city jail for not less than five days and not more than 30 days, or by a fine not exceeding $50.00 or by both such fine and imprisonment. (Code 1982, § 10.56.020) Sec. 36.12.030. Traffic accident reports; duties of police department. A. The police department of public safety-police shall maintain a suitable system of filing traffic-accident reports. Accident reports or cards referring to them shall be filed alphabetically by location. B. The police department of public safety-police shall receive and properly file all accident reports made to it under state law or under any ordinance of the city, but all such accident reports made by drivers shall be for the confidential use of the police department of public safety-police and no such report shall be admissible in any civil or criminal proceeding other than upon request of any person making such report or upon request of the court having jurisdiction to prove a compliance with the laws requiring the making of any such report. (Code 1982, § 10.56.030; Ord. No. 1537, § 21, 5-29-2001; Ord. No. 1640, § 5, 6-6-2005) Sec. 36.12.040. Traffic violations; duties of police department. A. The police department of public safety-police or the operations division thereof301 shall keep a record of all violations of the traffic ordinances of the city or of the state vehicle laws applicable to street traffic in the city of which any person has been charged, together with a record of the final disposition of all such alleged offenses. Such record shall be so maintained as to show all types of violations and the total of each. The record shall accumulate during at least a five-year period, and from that time on the record shall be maintained complete for at least the most recent five-year period. B. All forms for records of violations and notices of violations shall be serially numbered. For each month and year, a written record shall be kept available to the public, showing the disposal of all such forms. (Code 1982, § 10.56.040; Ord. No. 1537, § 22, 5-29-2001; Ord. No. 1640, § 6, 6-6-2005) 301 Does the police department have an operations division? No. please delete the phrase “or the operations division thereof. PROOFS Page 474 of 977 PROOFS Page 475 of 977 Chapter 37 RESERVED PROOFS Page 476 of 977 Chapter 38 UNIFIED DEVELOPMENT CODE* *State law reference—Land resources and use, MCA 76-1-101 et seq. CHAPTER 18.02. GENERAL PROVISIONS ARTICLE 1. IN GENERAL Sec. 38.01.010. Citation. This chapter title shall be known and cited as the Unified Development Ordinance Code of the City of Bozeman, except when cited herein, where it shall be referred to as "this chapter title." (Ord. No. 1645, § 18.02.010, 8-15-2005; Ord. No. 1693, § 1(18.02.010), 2-20-2007; Ord. No. 1709, § 1(18.02.010), 7-16-2007; Ord. No. 1769, § 1(18.02.010), 12-28-2009; Ord. No. 1769, exh. A(18.02.010), 12-28- 2009) Sec. 38.01.020. Authority. This chaptertitle is adopted by authority of MCA 76-2-301 et seq., MCA 76-3-101 et seq., and MCA 7-3-701 et seq. Additional city authority is granted by various other sections of state law and the authority granted by those sections is incorporated as if set forth herein. (Ord. No. 1645, § 18.02.020, 8-15-2005; Ord. No. 1693, § 1(18.02.020), 2-20-2007; Ord. No. 1709, § 1(18.02.020), 7-16-2007; Ord. No. 1769, exh. A(18.02.020), 12-28-2009) Sec. 38.01.030. Jurisdictional area and application. These regulations govern the division, development and use of land within the city limits and lands proposed for annexation to the city. These regulations shall apply to all private and public lands, all uses thereon, and all structures and buildings over which the city has jurisdiction under the constitution and laws of the state of Montana or pursuant to the city's powers. (Ord. No. 1645, § 18.02.030, 8-15-2005; Ord. No. 1693, § 1(18.02.030), 2-20-2007; Ord. No. 1709, § 1(18.02.030), 7-16-2007; Ord. No. 1769, exh. A(18.02.030), 12-28-2009) Sec. 38.01.040. Intent and purpose of ordinancechapter. A. The intent of this unified development ordinancechapter is to protect the public health, safety and general welfare; to recognize and balance the various rights and responsibilities relating to land ownership, use, and development identified in the United States and State of Montana constitutions, and statutory and common law; to implement the city's adopted growth policy; and to meet the requirements of state law. B. It is the purpose of these regulations to promote the public health, safety and general welfare by: preventing the creation of private or public nuisances caused by noncompliance with the standards and procedures of this chaptertitle; regulating the subdivision, development and use of land; preventing the overcrowding of land; lessening congestion in the streets and highways; providing adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public improvements; requiring development in harmony with the natural environment; promoting preservation of open space; promoting development approaches that minimize costs to local citizens and that promote the effective and efficient provision of public services; protecting the rights of property owners; requiring uniform monumentation of land subdivisions and transferring interests in real property by reference to a plat or certificate of survey (MCA 76-3-102). C. It is further the purpose of these regulations to: be in accord with the growth policy; securing safety from fire, panic, and other dangers; promoting public health, public safety, and the general welfare; facilitating the adequate provision of transportation, water, sewerage, schools, PROOFS Page 477 of 977 parks, and other public requirements; having given consideration to ensuring the reasonable provision of adequate light and air, motorized and nonmotorized transportation systems, promoting of compatible urban growth, considering the character of the district and its peculiar suitability for particular uses, conserving the value of buildings, and encouraging the most appropriate use of land throughout the jurisdictional area (MCA 76-2-304). D. Further, to support the purposes of MCA 76-2-304 and 76-3-102, these regulations are intended to promote and to provide for the: 1. Orderly development of the city; 2. Coordination of streets within subdivided land with other streets and roads, both existing and planned; 3. Dedication of land for streets and roadways and for public utility casements; 4. Improvement of streets; 5. Adequate open spaces for travel, light, air and recreation; 6. Adequate transportation, water, drainage and sanitary facilities; 7. Minimization of unnecessary congestion; 8. Avoidance of unnecessary environmental degradation; 9. Encouragement of subdivision development in harmony with the natural environment; 10. Avoidance of danger or injury to health, safety or general welfare by reason of natural hazard or the lack of water, sewer, drainage, access, transportation or other public services; 11. Avoidance of excessive expenditure of public funds for the provision of public services; 12. Manner and form of making and filing of plats for subdivided lands; 13. Administration of these regulations, by defining the powers and the duties of approving authorities, including procedures for the review and approval of all subdivision plats; 14. Division of the city into districts with uniformly applicable standards for development within each district; 15. To establish standards for the development and use of land; 16. To establish procedures for the review and approval for the development and use of land; and 17. The establishment of all other requirements necessary to meet the purposes of this chaptertitle. E. Pursuant to MCA 76-2-304, 76-1-605 and 76-1-606, these regulations are also intended to implement the goals and objectives of Bozemanthe city's adopted growth policy. In the case of a difference of meaning or implication between this chaptertitle and the city's adopted growth policy, the growth policy shall control. (Ord. No. 1645, § 18.02.040, 8-15-2005; Ord. No. 1670, § 18.02.040, 8-28-2006; Ord. No. 1693, § 1(18.02.040), 2-20-2007; Ord. No. 1709, § 1(18.02.040), 7-16-2007; Ord. No. 1769, exh. A(18.02.040), 12-28-2009) Sec. 38.01.050. Interpretation as minimum requirements. A. In their interpretation and application, the provisions of this chaptertitle shall be held to be minimum requirements adopted for the promotion of the health, safety and general PROOFS Page 478 of 977 welfare of the community. In some instances the public interest will be best served when such minimums are exceeded. Wherever the requirements of this chaptertitle are at variance with the requirements of any other lawfully adopted rules or regulations, or wherever there is an internal conflict within this chaptertitle, the most restrictive requirements, or that imposing the higher standards, shall govern. B. In the case of a difference of meaning or implication between the text of this chaptertitle and the captions or headings for each section, the text shall control. C. When interpreting the meaning of this chaptertitle, subsections of the ordinancechapter shall be construed in a manner that will give effect to them all as the ordinancechapter derives its meaning from the entire body of text taken together. D. These regulations shall apply uniformly within each zoning district to each class or kind of structure, land or development as set forth in this chaptertitle. (Ord. No. 1645, § 18.02.050, 8-15-2005; Ord. No. 1693, § 1(18.02.050; Ord. No. 1709, § 1(18.02.050), 2-20- 2007; Ord. No. 1769, exh. A(18.02.050), 12-28-2009) Sec. 38.01.060. Donations or grants to public considered a grant to donee. Every donation or grant to the public or to any person, society or corporation marked or noted on a plat or plan is to be considered a grant to the donee. (Ord. No. 1645, § 18.02.060, 8-15-2005; Ord. No. 1693, § 1(18.02.060), 2-20-2007; Ord. No. 1709, § 1(18.02.060), 7-16-2007; Ord. No. 1769, exh. A(18.02.060), 12-28-2009) Sec. 38.01.070. Conditions of approval. A. Regulation of the subdivision and development of land, and the attachment of reasonable conditions to land subdivided or developed, or a use undertaken, is an exercise of valid police power delegated by the state of Montana to the city. Persons undertaking the subdivision, development or use of land have the duty of complying with reasonable conditions for design, dedication, improvement and restrictive use of the land so as to conform to the physical and economic development of the city, and to the safety and general welfare of the future lot owners and of the community at large. Such conditions may require compliance with more than the minimum standards established by this chaptertitle. B. Conditions of approval may not be added after final action to grant preliminary approval to a proposed subdivision or other development unless: 1. The conditions are necessary to correct inaccurate or incomplete information provided with an application, which error is discovered after the original approval action; and 2. The project is not completed within the time period provided in the approval or by this chaptertitle; or 3. The requirement is part of an improvements agreement and security for completion of required improvements prior to filing a final plat or other development. However, should the owner seek material modifications (e.g., changes to the intent, nature, or scope of a subdivision or development, or necessary improvements) to a previously approved subdivision, development or condition of approval, the entire application shall be considered to be again opened for review and additional conditions may be applied. Modifications of conditions of approval shall be reviewed through the same process as the original application. Final action includes the resolution of any appeals. The provisions of section 18.06.04038.03.040.4.g may also apply to revisions of conditions for preliminary plats. C. Mandatory compliance with the explicit terms of this chaptertitle does not constitute PROOFS Page 479 of 977 conditions of approval and is not affected by the limitations of subsection B of this section. (Ord. No. 1645, § 18.02.070, 8-15-2005; Ord. No. 1693, § 1(18.02.070), 2-20-2007; Ord. No. 1709, § 1(18.02.070), 7-16-2007; Ord. No. 1769, exh. A(18.02.070), 12-28-2009) Sec. 38.01.080. Compliance with regulations required. A. No land shall hereafter be subdivided, used or occupied, and no building, structure or part thereof shall hereafter be erected, constructed, reconstructed, moved or structurally altered, and no development shall commence unless it is in conformity with all of the regulations herein specified for the district in which it is located. B. To the extent reasonable, all city-owned land shall be subject to applicable regulations of the underlying zoning district. Development of such land shall be subject to approval by the city commission upon review of the development review committee and other review bodies as may be required by this chaptertitle. (Ord. No. 1645, § 18.02.080, 8-15-2005; Ord. No. 1693, § 1(18.02.080), 2-20-2007; Ord. No. 1709, § 1(18.02.080), 7-16-2007; Ord. No. 1769, exh. A(18.02.080), 12-28-2009) Sec. 38.01.090. Development that lies within multiple jurisdictions. If a proposed development lies partly within the city and partly within unincorporated Gallatin County, the proposed development must be submitted to and approved by both the city and the county. (Ord. No. 1645, § 18.02.090, 8-15-2005; Ord. No. 1693, § 1(18.02.090), 2-20-2007; Ord. No. 1709, § 1(18.02.090), 7-16-2007; Ord. No. 1769, exh. A(18.02.090), 12-28-2009) Sec. 38.01.100. Private restrictions. This chaptertitle is not intended to affect any existing private agreement or condition such as a deed restriction or covenant. If any provision of this chaptertitle is more restrictive or imposes a higher standard than any such private restriction, the requirements of this chaptertitle shall control. Where the provisions of any private restriction are more restrictive or impose higher standards than the provisions of this chaptertitle, the city has no duty to enforce such private restrictions or advise of their existence. The city may enforce a private restriction if the city is a party to such covenant or restriction, if such restriction was required by the city, or if it was relied upon by the city during the land development process in order to meet the requirements of this chaptertitle or another required standard. The city may prohibit private restrictions that violate matters of law. Covenants are subject to the requirements of section 18.72.030, BMC38.38.030. (Ord. No. 1645, § 18.02.100, 8-15-2005; Ord. No. 1693, § 1(18.02.100), 2-20-2007; Ord. No. 1709, § 1(18.02.100), 7-16-2007; Ord. No. 1769, exh. A(18.02.100), 12-28-2009) Sec. 38.01.110. Severability. Where any word, phrase, clause, sentence, paragraph, or section or other part of these regulations is held invalid by a court of competent jurisdiction by express inclusion in the decision to be invalid, such judgment shall affect only that part held invalid and such decision shall not affect, impair or nullify this chaptertitle as a whole or any other part thereof. Insofar as these regulations are more restrictive than any other law, these regulations shall be controlling, and if any other law is more restrictive, the higher standard shall take precedence over a standard set forth in these regulations. (Ord. No. 1645, § 18.02.110, 8-15-2005; Ord. No. 1693, § 1(18.02.110), 2-20-2007; Ord. No. 1709, § 1(18.02.110) , 7-16-2007; Ord. No. 1769, exh. A(18.02.110), 12-28-2009) PROOFS Page 480 of 977 Chapter 18.04. subdivision and platting administrative procedures* ARTICLE 2. SUBDIVISION AND PLATTING ADMINISTRATIVE PROCEDURES* *State law reference—Montana Subdivision and Platting Act, MCA 76-3-101 et seq. Sec. 38.02.010. Transfers of title. A. Unless the plat is located in an area where the state or the city does not have jurisdiction, every final subdivision plat must be filed for record with the county clerk and recorder before title to the subdivided land can be sold or transferred in any manner. After a preliminary subdivision plat has been approved or conditionally approved, the developer may enter into contracts to sell lots in the proposed subdivision if all of the following conditions are met: 1. Under the terms of the contracts, the purchasers of lots in the proposed subdivision shall make any payments to an escrow agent which must be a bank or savings and loan association chartered to do business in the state of Montana; 2. Under the terms of the contracts and the escrow agreement, the payments made by purchasers of lots in the proposed subdivision may not be distributed by the escrow agent to the developer until the final plat of the subdivision is filed and of record with the county clerk and recorder; 3. The contracts and the escrow agreement provide that if the final plat of the proposed subdivision is not filed with the county clerk and recorder within two years of the preliminary plat approval, the escrow agent shall immediately refund to each purchaser any payment made under the contract; 4. The county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be divided are delinquent; and 5. The contracts shall contain the following language conspicuously set out therein: “The real property which is the subject hereof has not been finally platted, and until a final plat identifying the property has been filed with the county clerk and recorder, title to the property cannot be transferred in any manner." B. Unless the plat is located in an area where the state or the city does not have jurisdiction, the county clerk and recorder may not record any instrument that purports to transfer title to or possession of a parcel or tract of land that is required to be surveyed by the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) unless the required certificate of survey or subdivision plat has been filed with the county clerk and recorder and the instrument of transfer describes the parcel or tract by reference to the filed certificate or plat. This provision does not apply if the parcel or tract to be transferred was created before July 1, 1973, and the instrument of transfer for the parcel or tract includes a reference to a previously recorded instrument of transfer or is accompanied by documents that, if recorded, would otherwise satisfy the requirements of this subsection B. The reference or document must demonstrate that the parcel or tract existed before July 1, 1973. However, these references or documents do not constitute a legal description of the property and may not be substituted for a legal description of the property. (Ord. No. 1645, § 18.04.010, 8-15-2005) State law reference—Land transfers, MCA 76-3-301 et seq. Sec. 38.02.020. Effect of recording complying plat. The recording of any plat made in compliance with the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) shall serve to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat, properly certified by itsthe county clerk and recorder as being a true copy thereof, shall be PROOFS Page 481 of 977 regarded as incorporated into the instrument of conveyance and shall be received in evidence in all courts of this state. (Ord. No. 1645, § 18.04.020, 8-15-2005) State law reference—Similar provisions, MCA 76-3-304. Sec. 38.02.030. Correction of errors, amendments or vacation of recorded final plats. A. Correction of errors. Correction of errors that, in the opinion of the city commission, will not materially alter the plat may be made by the submission of a corrected final plat for the city commission’s approval. The plat may be filed under the procedures for first minor subdivision plats. The plat shall be entitled “amended plat of the (name of subdivision) subdivision," and the reason for the correction shall be stated on the face of the plat. B. Material alterations. Amendments that materially alter the final plat, or any portion thereof, shall be made by the filing of an amended plat showing all alterations. The amended plat shall be approved by the city commission under the major or minor subdivision procedure, as is appropriate. Prior to such approval, the amended plat shall be reviewed by the planning department. The city commission may not approve an amendment which will place the plat in nonconformance with the standards contained herein unless a public hearing is held on the plat and a written variance from the standards issued pursuant to procedures contained herein for such variances is granted. The plat shall be entitled “amended plat of (the name) subdivision," and the reason for the amendment shall be stated on the face of the plat. C. Vacating recorded plats. Any plat prepared and recorded as provided by this chaptertitle may be vacated, in whole or in part, as provided by MCA 7-5-2501, 7-5-2502, 7-14- 2616(1) and (2), 7-14-2617, 7-14-4114(1) and (2), and 7-14-4115. Upon vacation, the city commission, or the district court, as provided in MCA 7-5-2502, shall determine to which properties the title to the streets and alleys of the vacated portions must revert. The city commission, or the district court, as provided in MCA 7-5-2502, shall take into consideration the previous platting; the manner in which the right-of-way was originally dedicated, granted or conveyed; the reasons stated in the petition requesting the vacation; the parties requesting the vacation; and any agreements between the adjacent property owners regarding the use of the vacated area. The title to the streets and alleys of the vacated portions may revert to one or more of the owners of the properties within the platted area adjacent to the vacated portions. 1. Utility easements. When any poleline, pipeline or any other public or private facility is located in a vacated street or alley at the time of the reversion of the title to the vacated street or alley, the owner of the public or private utility facility has an easement over the vacated land to continue the operation and maintenance of the public or private utility facility. (Ord. No. 1645, § 18.04.030, 8-15-2005) State law reference—Vacation of plats, utility easements, MCA 76-3-305. PROOFS Page 482 of 977 Sec. 38.02.040. Correction of recorded plat by governing body302. When a recorded plat does not definitely show the location or size of lots or blocks, or the location or width of any street or alley, the city may at its own expense cause a new and correct survey and plat to be made and recorded in the office of the county clerk and recorder. The corrected plat must, to the extent possible, follow the plan of the original survey and plat. The surveyor making the resurvey shall endorse the corrected plat referring to the original plat, and noting the defect existing therein and the corrections made. (Ord. No. 1645, § 18.04.040, 8-15-2005) State law reference—Similar provisions, MCA 76-3-614. Sec. 38.02.050. Disposition of water rights. A. When a subdivision creates parcels with lot sizes averaging less than five acres, the developer shall: 1. Reserve all or a portion of the appropriation water rights owned by the owner of the land to be subdivided and transfer the water rights to a single entity for use by the landowners within the subdivision who have a legal right to the water and reserve and sever any remaining surface water rights from the land; 2. If the land to be subdivided is subject to a contract or interest in a public or private entity formed to provide the use of a water right on the subdivision lots, establish a landowner’s water use agreement administered through a single entity that specifies administration and the rights and responsibilities of landowners within the subdivision who have a legal right and access to the water; or 3. Reserve and sever all surface water rights from the land proposed for subdivision. (Ord. No. 1645, § 18.04.050, 8-15-2005) State law reference—Mandate for this section, MCA 76-3-504(1)(j). Chapter 18.06. Review procedures for subdivisions* ARTICLE 3. REVIEW PROCEDURES FOR SUBDIVISIONS* *State law reference—Local review procedure for subdivisions, MCA 76-3-601 et seq. Sec. 38.03.010. General procedure. Every plat of subdivision must be reviewed, approved and filed for record with the county clerk and recorder in accordance with the procedures contained herein before title to the subdivided land can be sold or transferred in any manner. Subdivisions containing six or more lots shall be considered major subdivisions. A subdivision containing five or fewer lots, in which proper access to all lots is provided and in which no land is to be dedicated to public use for parks and playgrounds, shall be a minor subdivision. (Ord. No. 1645, § 18.06.010, 8-15-2005; Ord. No. 1693, § 2(18.06.010), 2-20-2007; Ord. No. 1769, exh. B(18.06.010), 12-28-2009) 302 Ok to change governing body to city commission throughout? State statute uses the term “governing body” when discussing the entity with authority to approve a subdivision. The “Governing body” is defined as the city Commission in 18.80.1200. Please leave the term “governing body” in place. PROOFS Page 483 of 977 Sec. 38.03.020. Presubmittal meeting and preapplication plan review. A. The purpose of a preapplication plan review is to discuss this chaptertitle and these standards, to familiarize the developer with the standards, goals and objectives of applicable plans, regulations and ordinances, and to discuss the proposed subdivision as it relates to these matters. 1. Minor subdivisions. Prior to the submittal of a subdivision application for a minor subdivision, the developer shall submit an application for subdivision preapplication review. 2. Major subdivisions. Prior to the submittal of a subdivision application for a major subdivision, the developer shall submit an application for subdivision preapplication review. The developer is encouraged to have a presubmittal meeting with the planning department303 prior to submitting a subdivision preapplication. 3. Preapplication plan review. For subdivision preapplication review, the developer shall submit a complete application for preapplication plan review, the appropriate review fee, and copies of all required preapplication information as set forth in section 18.78.030, BMC38.41.030. a. Planning department review. The planning department shall review the preapplication plan and advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chaptertitle. (1) Agency review. The planning department will distribute the preapplication information to appropriate county and city departments and state and federal agencies for review and written comment. All written comments received from various agencies, along with the planning department's comments regarding whether the plans and data meet the standards, goals and objectives of applicable plans, ordinances, and this chaptertitle, and for informational purposes identification of local regulations, state laws, and growth policy provisions that may apply to the subdivision process, will be forwarded to the applicant to aid in the preparation of the subdivision application. The planning department shall provide a list of the public utilities, agencies of government, and other parties who may be contacted and their timeframes for comment on the subdivision application. The comments collected by the planning department shall be provided in person or by letter to the subdivider or their agent within 30 calendar days of a complete application being received by the city. The 30 calendar day review period shall be considered met if the letter is dated, signed and placed in the outgoing mail within the 30 calendar day review period. (2) Time for review. The planning department shall review the preapplication plan and within 30 working days advise the developer as to whether the plans and data meet the goals and objectives of applicable plans and this chaptertitle. Every effort shall be made by 303 Change to department of planning and community development throughout? No, Planning Department is a defined term in 18.80.2320. We did that to not waste so much text room. If the department ever changes name we can amend just the definition rather than mess with the whole ordinance. PROOFS Page 484 of 977 the planning department to obtain department and agency comment within this time period. b. Optional planning board review. If the developer so wishes, he/shethe developer may request in writing that the planning board review preapplication plans. The letter of request and additional copies of the preapplication materials are required for this optional review. (1) The request must be received at least 30 working days prior to the planning board meeting at which it is to be considered. The application will be submitted to the planning board at their next available meeting. A copy of the approved minutes of the planning board meeting will be forwarded to the developer. c. Time for follow-up submittal. A complete subdivision preliminary plat application shall be submitted to the planning department within one calendar year of the date the planning office dates, signs and places in the outgoing mail. d. The property owner will not receive formal written notification on the acceptability or adequacy of a subdivision preapplication plan submittal. (Ord. No. 1645, § 18.06.020, 8-15-2005; Ord. No. 1693, § 2(18.06.020), 2-20-2007; Ord. No. 1769, exh. B(18.06.020), 12-28-2009) State law reference—Mandate for preapplication process, MCA 76-3-504(1)(q). Sec. 38.03.030. Concurrent review. The developer has the option of submitting a 304state department of environmental quality (DEQ)/local government joint application form in the place of a preliminary plat application form, and to request concurrent subdivision review by the state department of environmental quality and the city commission, pursuant to MCA 76-4-129. (Ord. No. 1645, § 18.06.030, 8-15-2005; Ord. No. 1693, § 2(18.06.030), 2-20-2007; Ord. No. 1769, exh. B(18.06.030), 12-28-2009) Sec. 38.03.040. Preliminary plat. A. After the requirement for a preapplication review has been satisfied, the developer may submit a subdivision application. Subdivision applications shall be submitted, along with the appropriate review fee and all required subdivision application information as set forth in chapter 18.78, BMCarticle 41 of this chapter to the planning department and must conform to the requirements of this chaptertitle. The preliminary plat shall be prepared by a surveyor licensed to practice in Montanathe state. 1. Acceptability and adequacy of application. The time limits in subsections 1.a and b of this section apply to each successive submittal of the application until a determination is made that the application contains the required materials and is adequate for review and the subdivider or their agent is notified. a. The planning department shall review a subdivision application within five working days of receipt of the application and applicable fee submitted in accordance with any deadlines established for submittal to determine if the application is acceptable. An application is acceptable only if it contains all of 304 I assume this is a state department. It would be best to so state to avoid confusion. Yes. It is state. PROOFS Page 485 of 977 the information required by this chaptertitle. If the application is unacceptable, the application, the review fee and a written explanation of why the application is unacceptable will be returned to the subdivider, who is the property owner. If the application is acceptable the subdivider shall be so notified. The property owner may designate in writing another party to receive notifications regarding acceptability. The five working day review period shall be considered met if the letter is dated, signed and placed in the outgoing mail within the five day review period. b. After the application is deemed acceptable it shall be reviewed for adequacy. The review for adequacy shall be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period shall begin on the next working day after the date that the planning department determines the application is acceptable and sends the required notice to the subdivider; and shall be completed within not more than 15 working days. The 15 working day review period shall be considered met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the subdivider, who is the property owner. If the application is adequate the subdivider shall be so notified. The property owner may designate in writing another party to receive notifications regarding adequacy. (1) In the event the missing information is not received by the city within 15 working days of notification to the subdivider of inadequacy, all application materials and one-half of the review fee shall be returned to the subdivider or their representative. Subsequent resubmittal shall require payment of a review fee as if it were a new application. (2) A determination that an application is adequate does not restrict the city from requesting additional information during the subdivision review process. A determination of adequacy establishes the applicable review criteria as specified in section 18.64.080.38.34.080.A, BMC. c. The DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials shall be provided before review is completed. d. In order to be granted a waiver the applicant shall include with the submission of the subdivision application a written statement describing the requested waiver and the reasons upon which the request is based. The final approval body shall then consider each waiver at the time the subdivision application is reviewed. All waivers must be initially identified with the preapplication stage of review. 2. Review by affected agencies. After an application is deemed acceptable, the planning department may submit copies of the preliminary plat and supplementary information to relevant public utilities and public agencies for review and comment, and to the planning board for its advice pertaining to the approval or denial of the subdivision application. Review by public agencies or utilities shall not delay the city commission's consideration of the subdivision application beyond the statutorily PROOFS Page 486 of 977 specified review period. If the planning department shall request review by a public utility, agency of government, and other parties regarding the subdivision application that was not identified during the preapplication review the planning department shall notify the subdivider. 3. Planning board review. At a regularly noticed meeting or public hearing, the planning board shall review all subdivision applications, together with required supplementary plans and information, and determine whether the plat is in compliance with the city's growth policy. The planning board shall hold a public hearing on all subdivisions for which a public hearing is required. a. Public testimony. All written public comment received at or prior to a public hearing shall be incorporated into the written record of the review. Minutes shall be taken of verbal comment received during the public hearing or public meeting before the planning board and shall be incorporated into the written record of the review. Copies of the minutes and written comments shall be included in any recommendation made to the city commission by the planning board. b. Planning board recommendation. Within ten working days of their review, the planning board shall submit in writing to the city commission, a resolution forwarding its advice regarding compliance with the city's growth policy, and a recommendation for approval, conditional approval or denial of the subdivision application. 4. City commission review. The city commission shall review and take action on all proposed subdivisions. a. The following requirements for a public hearing or a public meeting, and for statutory review periods, shall be met: (1) First minor subdivision created from a tract of record. The city commission shall consider the subdivision application and the planning board's recommendation during a regular public meeting of the commission. The city commission, when legal and physical access is provided to all lots shall approve, conditionally approve or deny the subdivision application of a first minor subdivision within 35 working days of the determination that the application is adequate, unless there is a written extension from the developer for a period not to exceed one year. A minor subdivision must reviewed as a second or subsequent minor subdivision if the tract has been previously subdivided or created by a subdivision; or the tract has descended from a tract of record which has previously been divided by exemption or other means into six or more tracts of record since July 1, 1973. (a) Variance requests for minor subdivisions. If the developer of a minor subdivision is requesting a variance from any requirement of this chaptertitle, the procedures of section 18.66.070, BMC38.35.070 must be followed except that a public hearing shall not be held. (2) Subdivisions eligible for summary review. The city commission shall consider the application and the planning board's recommendation during a regular public meeting of the commission. The city commission shall approve, conditionally approve or deny a proposed subdivision that is eligible for summary review within 35 calendar PROOFS Page 487 of 977 days of determination that the application is adequate, unless there is a written extension from the developer. Minor subdivisions are eligible for summary review if the plat has been approved by the Montanastate department of environmental quality whenever approval is required by MCA 76-4-101 et seq. (3) Second or subsequent minor subdivision created from a tract of record. For the second or subsequent minor subdivision created from a tract of record, the city commission shall hold a public hearing on the subdivision application. The city commission shall approve, conditionally approve or deny the subdivision application of a second or subsequent minor subdivision within 60 working days of the determination that the application is adequate for review, unless there is a written extension from the developer, not to exceed one year. (4) Major subdivisions. For a major subdivision, the city commission shall hold a public hearing on the subdivision application. The city commission shall approve, conditionally approve or deny the subdivision application within 60 working days of the determination that the application is adequate for review if the subdivision has less than 50 lots, and within 80 working days of the determination that the application is adequate for review if the subdivision has 50 or more lots, unless there is a written extension from the developer, not to exceed one year. (5) Public testimony. All written public comment received at a public meeting or public hearing prior to a decision to approve, approve with conditions, or deny a subdivision application shall be incorporated into the written record of the review. Minutes shall be taken of verbal comments received during the public hearing before the city commission and shall be incorporated into the written record of the review maintained by the city. (6) New and credible information. The city commission shall determine whether public comments or documents presented to the city commission at a public hearing regarding a subdivision application held pursuant to section 18.06.04038.03.040.A.4.4, BMC constitute: (a) Information or analysis of information that was presented at a public hearing held pursuant to section 18.06.04038.03.040.A.4.4, BMC that the public has had a reasonable opportunity to examine and on which the public has had a reasonable opportunity to comment; or (b) New information regarding a subdivision application that has never been submitted as evidence or considered by either the city commission, planning board or by city staff at a hearing during which the subdivision application was considered. (c) If the city commission determines that the public comments or documents constitute new information not previously considered at a public hearing, the city commission may: (i) Approve, conditionally approve, or deny the proposed subdivision without basing its decision on the new information if the governing body determines that the PROOFS Page 488 of 977 new information is either irrelevant or not credible; or (ii) Schedule or direct its agent or agency to schedule a subsequent public hearing before the city commission for consideration of only the new information that may have an impact on the findings and conclusions that the governing body will rely upon in making its decision on the proposed subdivision. (iii) In deciding whether the information is both new and credible the city commission shall consider: (A) Whether the topic of the information has previously been examined or available for examination at a public hearing on the subdivision application; (B) Whether the information is verifiable, and if applicable developed by a person with professional competency in the subject matter; (C) Whether the information is relevant to a topic within the jurisdiction of the city. (d) If a subsequent public hearing is held to consider new and credible information, the 60 working day review period required in section 18.06.040.38.03.040.A.4 is suspended and the new hearing must be noticed and held within 45 days of the governing body's determination to schedule a new hearing. After the new hearing, the otherwise applicable time limit for review resumes at the governing body's next scheduled public meeting for which proper notice for the public hearing on the subdivision application can be provided. The governing body may not consider any information regarding the subdivision application that is presented after the hearing when making its decision to approve, conditionally approve, or deny the proposed subdivision. (7) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the certification established in section 18.06.050, BMC,38.03.050 the city shall, at any public hearing, collect public comment given regarding the information required by section 18.78.050.38.41.050.A.9, BMC regarding sanitation. The city shall make any comments submitted or a summary of the comments submitted available to the subdivider within 30 days after conditional approval or approval of the subdivision application. (a) The subdivider shall, as part of the subdivider's application for sanitation approval, forward the comments or the summary provided by the governing body to the: (i) Reviewing authority provided for in title 76, chapter 4 Montana Code Annotated (MCA 76-4-101 et seq.), for subdivisions that will create one or more parcels containing less than 20 acres; and (ii) Local health department or board of health for proposed PROOFS Page 489 of 977 subdivisions that will create one or more parcels containing 20 acres or more and less than 160 acres. (b) Parcel size. (i) For a proposed subdivision that will create one or more parcels containing less than 20 acres, the governing body may require approval by the department of environmental quality as a condition of approval of the final plat. (ii) For a proposed subdivision that will create one or more parcels containing 20 acres or more, the governing body may condition approval of the final plat upon the subdivider demonstrating, pursuant to 305MCA 76-3- 604[SB 290, section 4], that there is an adequate water source and at least one area for a septic system and a replacement drainfield for each lot. b. Criteria for city commission action. The basis for the city commission's decision to approve, conditionally approve or deny the subdivision shall be whether the subdivision application, public hearing if required, planning board advice and recommendation and additional information demonstrates that development of the subdivision complies with this chaptertitle, the city's growth policy, the Montana Subdivision and Platting Act and other adopted state and local ordinances, including, but not limited to, applicable zoning requirements. The city commission may not deny approval of a subdivision based solely on the subdivision's impacts on educational services. When deciding to approve, conditionally approve or deny a subdivision application, the city commission shall: (1) Review the preliminary plat, together with required supplementary plans and information, to determine if it meets the requirements of this chaptertitle, the development standards and policies of the city's growth policy, the Montana Subdivision and Platting Act, and other adopted state laws and local ordinances, including but not limited to applicable zoning requirements. (2) Consider written comments from appropriate public agencies, utilities or other members of the public. (3) Consider the following: (a) Relevant evidence relating to the public health, safety and welfare; (b) Other regulations, code provisions or policies in effect in the area of the proposed subdivision; (c) The recommendation of the planning board; and (d) Any relevant public testimony. (4) When the subdivision does not qualify, pursuant to MCA 76-4-125(2), for the certification established in section 18.06.050, BMC38.03.050 305 I assume this is MCA 76-3-604. Yes. PROOFS Page 490 of 977 the city commission may conditionally approve or deny a proposed subdivision as a result of the water and sanitation information provided pursuant to §18.78.050.section 38.41.050.A.9 BMC, or public comment received pursuant to 76-3-604 on the information provided pursuant to §18.78.050.section 38.41.050, BMC. A conditional approval or denial shall be based on existing subdivision, zoning, or other regulations that the city commission has the authority to enforce. c. City commission action. If the city commission denies or conditionally approves the subdivision application, it shall forward one copy of the plat to the developer accompanied by a letter over the appropriate signature stating the reason for disapproval or enumerating the conditions that must be met to ensure approval of the final plat. This written statement must include: (1) The reason for the denial or condition imposition; (2) The evidence that justifies the denial or condition imposition; and (3) Information regarding the appeal process for the denial or condition imposition. d. Mitigation. The city commission may require the developer to design the subdivision to reasonably minimize potentially significant adverse impacts identified through the review required by this chaptertitle. The city commission shall issue written findings to justify the reasonable mitigation required by this chaptertitle. The city commission may not unreasonably restrict a landowner's ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the plat. When requiring mitigation under this subsection 4.d, the city commission shall consult with the developer and shall give due weight and consideration to the expressed preference of the developer. e. Findings of fact. Within 30 working days of the final action to approve, deny, or approve with conditions a subdivision, the city commission shall issue written findings of fact that discuss and weigh the following criteria, as applicable (pursuant to MCA 76-3-608): (1) Criteria. (a) Compliance with the survey requirements of the Montana Subdivision and Platting Act; (b) Compliance with this chaptertitle and the review process of these regulations; (c) The provision of easements to and within the subdivision for the location and installation of any necessary utilities; (d) The provision of legal and physical access to each parcel within the subdivision and the notation of that access on the applicable plat and any instrument transferring the parcel; and (e) For major subdivisions, the findings of fact shall also address the effect on agriculture, agricultural water user facilities, local services, the natural environment, wildlife and wildlife habitat, and public health and safety. PROOFS Page 491 of 977 (2) Required components. The written findings of fact shall contain at a minimum: (a) Information regarding the appeal process for the denial or imposition of conditions; (b) Identifies the regulations and statutes used in reaching the decision to deny or impose conditions and explains how they apply to the decision; (c) Provides the facts and conclusions that the governing body relied upon in making its decision to deny or impose conditions. The documents, testimony, or other materials that form the basis of the decision and support the conclusions of the governing body may be incorporated into the written findings by reference. f. Subdivision application approval period. Upon approving or conditionally approving a subdivision application, the city commission shall provide the developer with a dated and signed statement of approval. This approval shall be in force for not more than one calendar year for minor subdivisions, two years for single-phased major subdivisions and three years for multiphased major subdivisions. At the end of this period, the city commission may, at the written request of the developer, extend its approval for no more than one calendar year, except that the city commission may extend its approval for a period of more than one year if that approval period is included as a specific condition of a written subdivision improvements agreement between the city commission and the developer, provided for in section 18.74.060, BMC38.39.060. g. Changes to conditions after approval. Upon written request of the developer, the city commission may amend conditions of subdivision application approval where it can be found that errors or changes beyond the control of the developer have rendered a condition unnecessary, impossible or illegal. Changes to conditions that are not unnecessary, impossible or illegal shall be subject to the provisions of section 18.02.070, BMC38.01.070. (1) The written request shall be submitted to the planning department. (2) The written consent of all purchasers of land (via contract for deed, etc.) shall be included with the written request to amend conditions. (3) If it is an application for a major subdivision, the city commission shall conduct a public hearing on the request. If it is an application for a minor subdivision, the city commission shall consider the request at a regularly scheduled meeting. (a) If a public hearing is held, public notice of the hearing shall be given in accordance with this chaptertitle. (4) The city commission may approve the requested change if it meets the criteria set forth in this chaptertitle. (5) The city commission shall issue written findings of fact as required in this chaptertitle. (Ord. No. 1645, § 18.06.040, 8-15-2005; Ord. No. 1693, § 2(18.06.040), 2-20-2007; Ord. No. 1769, exh. B(18.06.040), 12-28-2009) PROOFS Page 492 of 977 State law reference—Review of subdivision application, MCA 76-3-604. Sec. 38.03.050. Notice of certification that water and waste services will be provided by local government. A. If the developer is proposing to request an exemption from the department of environmental quality (DEQ) for infrastructure plan and specification review, the subdivision application shall include a written request from the developer's professional engineer, licensed in the state of Montana, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. The director of public service shall, prior to final plat approval, send notice of certification to the DEQ per MCA 76-4-127. 1. The notice of certification shall include the following: a. The name and address of the applicant; b. A copy of the preliminary plat included with the application for the proposed subdivision or a final plat where a preliminary plat is not necessary; c. The number of proposed parcels in the subdivision; d. A copy of any applicable zoning ordinances in effect; e. How construction of the sewage disposal and water supply systems or extensions will be financed; f. Certification that the subdivision is within a jurisdictional area that has adopted a growth policy pursuant to Chapter 1, title 76, chapter 1, Montana Code Annotated (MCA 76-1-101 et seq.) and a copy of the growth policy, when applicable; g. The relative location of the subdivision to the city; h. Certification that adequate municipal facilities for the supply of water and disposal of sewage and solid waste are available or will be provided within the time provided in MCA 76-3-507; i. If water supply, sewage disposal or solid waste facilities are not municipally owned, certification from the facility owners that adequate facilities are available; and j. Certification that the city commission has reviewed and approved plans to ensure adequate stormwater drainage. (Ord. No. 1645, § 18.06.050, 8-15-2005; Ord. No. 1693, § 2(18.06.050), 2-20-2007; Ord. No. 1769, exh. B(18.06.050), 12-28-2009) Sec. 38.03.060. Final plat application. A. After the conditions of preliminary approval and the requirements for the installation of improvements have been satisfied, the developer shall cause to be prepared a final plat. The final plat shall conform to the uniform standards for final subdivision plats as set forth in section 24.183.11073068.94.3003 ARM. Plans and data shall be prepared under the supervision of a registered surveyor, licensed in the state of Montana, as their licensing laws allow. 1. Final plat submittal. The final plat and all supplementary documents shall be 306 This rule was transferred. Ok. PROOFS Page 493 of 977 submitted to the planning department at least 30 working days prior to the expiration of subdivision application approval or any extension thereto. The submittal shall include a final plat application form, the appropriate review fee, all information required by section 18.78.070, BMC38.41.070 and a written explanation of how each of the conditions of subdivision application approval has been satisfied. 2. County treasurer certification. A final plat will not be accepted as complete until the county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. 3. Review of abstract and covenants. With the final plat, the developer shall submit to the planning department a certificate of a licensed title abstractor showing the names of the owners of record of the land to be subdivided and the names of lienholders or claimants of record against the land, and the written consent to the subdivision by the owners of the land, if other than the developer, and any lienholders or claimants of record against the land. The certificate of licensed title abstractor shall be dated no earlier than 30 calendar days prior to submittal. Covenants shall also be submitted to the planning department with the final plat application. The planning department staff will obtain the city attorney's approval of the covenants and the city attorney's certificate. 4. Review by the planning department. The planning department will then review the final plat application to ascertain that all conditions and requirements for final approval have been met. If all conditions and requirements for final approval have been met, the planning department shall forward a report to the city commission for their action. 5. Final plat approval. The city commission shall examine every final plat, and within 45 working days of the date of submission to the planning department, shall approve it if it conforms to the conditions of preliminary approval and the terms of this chaptertitle. The city commission shall examine every final plat at a regular meeting. 1. If the final plat is approved, the director of public service shall so certify the approval in a printed certificate on the plat. 2. If the final plat is denied, the city commission shall cause a letter to be written to the developer stating the reasons therefor. 6. Filing. The developer shall file the approved, signed final plat and all other required certificates and documents with the county clerk and recorder within 60 days of the date of final approval. (Ord. No. 1645, § 18.06.060, 8-15-2005; Ord. No. 1693, § 1(18.06.060), 2-20-2007; Ord. No. 1769, exh. B(18.06.060), 12-28-2009) Sec. 38.03.070. Changes to filed subdivision plats. Changes to a filed subdivision plat must be filed with the county clerk and recorder as an amended plat. An amended plat may not be filed unless it meets the filing requirements for a final subdivision plat specified in these regulations. (Ord. No. 1645, § 18.06.070, 8-15-2005; Ord. No. 1693, § 1(18.06.070), 2-20-2007; Ord. No. 1769, exh. B(18.06.070), 12-28-2009) PROOFS Page 494 of 977 CHAPTER 18.08. Land Subdivisions created by rent or lease ARTICLE 4. LAND SUBDIVISIONS CREATED BY RENT OR LEASE Sec. 38.04.010. General. A. Land subdivisions created by rent or lease, rather than sale, refer to areas that provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles regardless of the size of the area or whether the spaces will be made available for rent by the general public for a fee. The land shall be owned as one parcel under single ownership, which can include a number of persons owning the property in common. Subdivisions complying with §§ 18.10.010. H and 18.10.010.I, BMCsection 38.05.010.A.8 and 9, are not subject to this chapterarticle. B. Land proposed for a subdivision created by rent or lease shall have a RMH, Residential Manufactured Home or RS, Residential Suburban zoning designation. C. DPHHS license. If a land subdivision by rent or lease, that will provide multiple spaces for manufactured homes, mobile homes or recreational camping vehicles is also a “campground,” “trailer court,” “work camp,” or “youth camp” as defined in this subsection C, the city commission shall not grant final approval until the developer obtains a license for the facility from the Montanastate department of public health and human services (DPHHS) under title 50, chapter 52 (MCA 50-52-101 et seq.). 1. “Campground” means a parcel of land available to and principally used by the public for camping, where persons can camp, secure tents or cabins, or park trailers for camping and sleeping purposes. 2. “Trailer court” means a parcel of land upon which two or more spaces are available to the public and designated for occupancy by trailers, manufactured homes or mobile homes for use as residences. The term does not include a parcel composed of platted lots, if each lot: a. Is filed with the county clerk and recorder; b. Contains only one trailer space; and c. Is served by a public water supply system and public sewage system that meet the requirements of rules for systems adopted pursuant to title 75, chapter 6, part 1 (MCA 75-6-101 et seq.), and that are located within the boundaries of the city. 3. “Work camp” means a parcel of land on which housing is provided by a person for two or more families or individuals living separately, for the exclusive use of the employees of the person and the families, if any, of the employees. For purposes of this subsection C, “housing” includes but is not limited to camping spaces; trailer parking spaces; manufactured, mobile, modular or permanent barracks or structures; and any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining facilities. Housing does not include shelter provided by an employer for persons who are employed to perform agricultural duties on a ranch or farm. 4. “Youth camp” means a parcel of land on which permanent buildings, tents or other structures are maintained as living quarters for ten or more people and that is used primarily for educational or recreational use by minors. The term includes any appurtenant water supply and distribution system, sewage collection and disposal system, solid waste collection and disposal system, or food service and dining PROOFS Page 495 of 977 facilities. D. Surveying and filing requirements exemption. Land subdivisions created by rent or lease are exempt from the surveying and filing requirements of the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.). (Ord. No. 1645, § 18.08.010, 8-15-2005) Sec. 38.04.020. Procedure, submittal requirements and review criteria. A. Land subdivisions created by rent or lease shall be submitted, reviewed and approved by the city before any portions of the development may be rented or leased. The developer shall apply for site plan and subdivision review. B. Site plan review. All relevant procedures, submittal requirements and review criteria contained in chapterarticle 18.34, BMC19 of this chapter shall apply. The development shall also comply with the requirements of chapterarticle 18.16article 8 of this chapter and § 18.40.120sections 38.22.120 and § 18.40.170 38.22.170BMC. C. Subdivision review. The subdivision review procedure and review criteria for land subdivisions created by rent or lease will depend upon the number of spaces within the proposed development. Proposed developments containing five or fewer spaces for rent or lease shall be reviewed as minor subdivisions according to the provisions of chapter18.06, BMCarticle 3 of this chapter and proposed developments containing six or more spaces for rent or lease shall be reviewed as major subdivisions according to the provisions of chapter18.06, BMCarticle 3 of this chapter. 1. Preapplication plan. The preapplication plan shall be reviewed using the procedures contained in section 18.06.020, BMC38.03.020. The submittal materials listed in section 18.78.030, BMC38.41.030 shall be provided. 2. Preliminary plan submittal and procedure. For land subdivisions created by rent or lease, the developer shall submit a preliminary plan in lieu of a preliminary plat, a completed application for minor subdivision or major subdivision as appropriate, and the materials listed in sections 18.78.05038.41.050 and 18.78.060, BMC38.41.060. 3. Final plan submittal and procedure. For land subdivisions created by rent or lease, the developer shall submit a final plan in lieu of a final plat, a completed final plat application and the materials listed in section 18.78.070, BMC38.41.070. 4. Supplementary materials. In addition to the submittal requirements of chapter 18.78, BMCarticle 41 of this chapter, preliminary and final plans for land subdivisions created by rent or lease shall show the following: a. A layout of all spaces proposed for rent or lease; b. Location of commonly owned areas and facilities; and c. Parks and/or recreation areas. 5. Boundary lines. All preliminary and final plans may show approximate boundary, lot, right-of-way or other lines. (Ord. No. 1645, § 18.08.020, 8-15-2005) Sec. 38.04.030. Timing of improvements. Before any portion of a land subdivision created by rent or lease can be rented or leased, all required improvements shall be installed, inspected and found compliant with the approved plan, and where applicable accepted by the city. (Ord. No. 1645, § 18.08.030, 8-15-2005) PROOFS Page 496 of 977 Sec. 38.04.040. Filing of final plan. Once the final plan has been approved by the city commission, an original copy of the approved plan shall be filed with the county clerk and recorder as a “miscellaneous” document and another copy of the approved plan shall be retained by the Bozeman 307engineering division of the department of public servicesDepartment. (Ord. No. 1645, § 18.08.040, 8-15-2005) CHAPTER 18.10. SUBDIVISION EXEMPTIONS* ARTICLE 5. SUBDIVISION EXEMPTIONS* *State law reference—Miscellaneous exemptions, MCA 76-3-201 et seq. Sec. 38.05.010. Divisions of land entirely exempt from the requirements of this chaptertitle and the montanastate subdivision and platting act. A. Unless the method of disposition is adopted for the purpose of evading this chaptertitle or the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.) (the "Act"), the requirements of this chaptertitle pertaining to subdivisions and the Act may not apply when (references below the following text are to the authorizing law): 1. A division of land is created by order of any court of record in this state or by operation of law or that, in the absence of agreement between the parties to the sale, could be created by an order of any court in the state pursuant to the law of eminent domain (MCA 70-30-101 et seq.; MCA 76-3-201(1)(a)): a. Before a court of record orders a division of land, the court shall notify the governing body of the pending division and allow the governing body to present written comment on the division; 2. A division of land is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided, or refinancing purposes (MCA 76-3-201(1)(b)). This exemption applies: a. To a division of land of any size; b. If the land that is divided is not conveyed to any entity other than the financial or lending institution to which the mortgage, lien or trust indenture was given or to a purchaser upon foreclosure of the mortgage, lien or trust indenture. A transfer of the divided land, by the owner of the property at the time that the land was divided, to any party other than those identified in this subsection subjects the division of land to the requirements of the Montana Subdivision and Platting Act and article 3 of this chapter;18.06;, BMC. c. To a parcel that is created to provide security, however the remainder of the tract of land is subject to the provisions of the Montana Subdivision and Platting Act and Chapter 18.06, BMCarticle 3 of this chapter if applicable; 3. A division of land creates an interest in oil, gas, minerals or water that is severed from the surface ownership of real property (MCA 76-3-201(1)(c)); 4. A division of land creates cemetery lots (MCA 76-3-201(1)(d)); 5. A division of land is created by the reservation of a life estate (MCA 76-3-201(1)(e)); 307 Is this the correct title? Note change. PROOFS Page 497 of 977 6. A division of land is created by lease or rental for farming and agricultural purposes (MCA 76-3-201(1)(f); 7. A division of land is created for rights-of-way or utility sites. A subsequent change in the use of the land to a residential, commercial or industrial use is subject to the requirements of the Montana Subdivision and Platting Act and Chapter 18.06, BMCarticle 3 of this chapter (MCA 76-3-201(1)(h)); 8. The land upon which an improvement is situated has been subdivided in compliance with this chaptertitle and the Act, the sale, rent, lease or other conveyance of one or more parts of a building, structure or other improvement situated on one or more parcels of land is not a division of land (MCA 76-3-202); 9. The sale, rent, lease or other conveyance of one or more parts of a building, structure or other improvement, whether existing or proposed, is not a division of land (MCA 76-3-204); 10. A division of land created by lease or rental of contiguous airport-related land owned by a city, county, the state, or a municipal or regional airport authority provided that the lease or rental is for onsite weather or air navigation facilities, the manufacture, maintenance, and storage of aircraft, or air carrier-related activities (MCA 76-3-205(1)); 11. A division of state-owned land unless the division creates a second or subsequent parcel from a single tract for sale, rent or lease for residential purposes after July 1, 1974 (MCA 76-3-205(2); and 12. Deeds, contracts, leases or other conveyances that were executed prior to July 1, 1974 (MCA 76-3-206). (Ord. No. 1645, § 18.10.010, 8-15-2005; Ord. No. 1769, exh. C(18.10.010), 12-28-2009) State law reference—Similar provisions, MCA 76-3-201, 76-3-202, 76-3-204, 76-3-205, 76-3-206. Sec. 38.05.020. Specific divisions of land exempt from review but subject to survey requirements and zoning regulations for divisions of land not amounting to subdivisions. A. Unless the method of disposition is adopted for the purpose of evading this chaptertitle or the Act, the following divisions or aggregations of land are not subdivisions under this chaptertitle and the Act, but are subject to the surveying requirements of MCA 76-3-401 for lands other than subdivisions and are subject to applicable zoning regulations adopted under title 76, chapter 2, Montana Code Annotated (MCA 76-2-101 et seq.). A division of land may not be made under this section unless the county treasurer has certified that no real property taxes and special assessments assessed and levied on the land to be divided are delinquent. The county clerk and recorder shall notify the planning department of any land division described in this section or MCA 76-3-207(1). 1. Divisions made outside of platted subdivisions for the purpose of relocating common boundary lines between adjoining properties (MCA 76-3-207(a)); 2. Divisions made outside of platted subdivisions for the purpose of a single gift or sale in each county to each member of the landowner's immediate family (MCA 76-3- 207(b) A); 3. Divisions made outside of platted subdivisions by gift, sale or an agreement to buy and sell in which the parties to the transaction enter a covenant running with the land and revocable only by mutual consent of the city and the property owner that the divided land will be used exclusively for agricultural purposes (MCA 76-3- 207(c)); PROOFS Page 498 of 977 4. For five or fewer lots within a platted subdivision, the relocation of common boundaries (MCA 76-3-207(d)); and 5. Divisions made for the purpose of relocating a common boundary line between a single lot within a platted subdivision and adjoining land outside a platted subdivision. A restriction or requirement on the original platted lot or original unplatted parcel continues to apply to those areas (MCA 76-3-207(e)). 6. Aggregation of parcels or lots when a certificate of survey or subdivision plat shows that the boundaries of the original parcels have been eliminated and the boundaries of the larger aggregate parcel are established. A restriction or requirement on the original platted lot or original unplatted parcel continues to apply to those areas (MCA 76-3-207(f)). (Ord. No. 1645, § 18.10.020, 8-15-2005; Ord. No. 1769, exh. C(18.10.020), 12-28-2009) State law reference—Similar provisions, MCA 76-3-207. Sec. 38.05.030. Exemptions from surveying and filing requirements but subject to review. Subdivisions created by rent or lease are exempt from the surveying and filing requirements of chapter18.06, BMCarticle 3 of this chapter and the Montana Subdivision and Platting Act, but must be submitted for review and approved by the city commission before portions thereof may be rented or leased. (Ord. No. 1645, § 18.10.030, 8-15-2005; Ord. No. 1769, exh. C(18.10.030), 12-28-2009) State law reference—Similar provisions, MCA 76-3-208. Sec. 38.05.040. Condominiums. A. Condominium developments are exempt from the surveying and filing requirements of chapter18.06, BMCarticle 3 of this chapter and the Montana Subdivision and Platting Act. B. Condominiums, constructed on land divided in compliance with the Montana Subdivision and Platting Act, are exempt from the provisions of chapter18.06, BMCarticle 3 of this chapter and the Montana Subdivision and Platting Act if either: 1. The approval of the original division of land expressly contemplated the construction of the condominiums and any applicable park dedication requirements of MCA 76-3- 621 are complied with; or 2. The condominium proposal is in conformance with applicable local zoning regulations where local zoning regulations are in effect. (Ord. No. 1645, § 18.10.040, 8-15-2005; Ord. No. 1769, exh. C(18.10.040), 12-28-2009) State law reference—Similar provisions, MCA 76-3-203. Sec. 38.05.050. Exemption from surveying and platting requirements for lands acquired for state highways. Instruments of transfer for land which is acquired for state highways may refer by parcel and project number to state highway plans which have been recorded in compliance with MCA 60-2- 209 and are exempted from the surveying and platting requirements of this chaptertitle and the Act (MCA 76-3-209). If such parcels are not shown on highway plans of record, instruments of transfer of such parcels shall be accompanied by and refer to appropriate certificates of survey and plats when presented for recording. (Ord. No. 1645, § 18.10.050, 8-15-2005; Ord. No. 1769, exh. C(18.10.050), 12-28-2009) State law reference—Similar provisions, MCA 76-3-209. PROOFS Page 499 of 977 Sec. 38.05.060. Procedures and general requirements. A. All certificates of survey or amended subdivision plats claiming an exemption inside city limits and subject to survey requirements shall be submitted to the planning department. The procedures and requirements of this chaptertitle are limited to the exemptions discussed in section 18.10.070, BMC38.05.070. 1. Submittal. A claimant seeking an exemption under the Act and this chaptertitle shall submit to the planning department a claim on the appropriate application form, including a signed certificate of exemption, together with evidence to support the claim and any other information required by this chaptertitle. 2. Review. The planning department will review the claimed exemption to verify that it is the proper use of the claimed exemption. a. During this review, planning department staff will visit the proposed site, understand thoroughly the nature of all activity occurring on the site, and shall identify any existing or potential zoning conflicts. The planning department shall prepare a memo evaluating the claimed exemption against applicable review criteria, which shall also be made available to the claimant or the claimant's representative. b. In assessing the claimant's purpose for the exemption, the planning department will evaluate all relevant circumstances including the nature of the claimant's business, the prior history of the particular tract in question, and the proposed configuration of the tract, if the proposed exemption transactions are completed. c. Where a rebuttable presumption is declared in this chaptertitle, the presumption may be overcome by the claimant with evidence contrary to the presumption. If the planning department concludes that the evidence overcomes the presumption and that from all the circumstances the exemption is justified, the exemption will be allowed. On the other hand, if the planning department concludes that the presumption is not overcome and that from all the circumstances the exemption is not justified, the exemption will be disallowed. d. If the exemption is allowed, the planning department shall so certify in a printed certificate on the certificate of survey or amended plat within 30 days of submission of a complete application. e. If the exemption is disallowed, the planning department shall provide written notification, within 30 days of submission of a complete application, of its decision to the person claiming the exemption and to the county clerk and recorder. 3. Filing requirements. An amended plat or a certificate of survey of a division of land which is exempt from review must be filed within 180 days of the completion of the survey. a. Certificates of survey. A certificate of survey may not be filed by the county clerk and recorder unless it complies with the following procedures for divisions of land exempted from public review as subdivisions. Certificates of survey for divisions of land meeting the criteria set out in MCA 76-3-207, must meet the following requirements: (1) A certificate of survey of a division of land that would otherwise be a subdivision, but that is exempted from subdivision review under MCA PROOFS Page 500 of 977 76-3-207, may not be filed by the county clerk and recorder unless it bears the acknowledged certificate of the property owner stating that the division of land is exempt from review as a subdivision and citing the applicable exemption. (2) If the exemption relied upon requires that the property owner enter into a covenant running with the land, the certificate of survey may not be filed unless it bears a signed and acknowledged recitation of the covenant. (3) If a certificate of survey invokes the exemption for gifts and sales to members of the landowner's immediate family, the certificate must indicate the name of the proposed grantee, the relationship of the grantee to the landowner and the parcel to be conveyed to the grantee. (4) If a certificate of survey invokes the exemption for the relocation of common boundary lines: (a) The certificate of survey must bear the signatures of all landowners whose parcels will be altered by the proposed relocation. The certificate of survey must show that the exemption was used only to change the location of or eliminate a boundary line dividing two or more parcels, and must clearly distinguish the prior boundary location (shown, for example, by a dashed or broken line or a notation) from the new boundary (shown, for example, by a solid line or notation); (b) The certificate of survey must show the boundaries of the area that is being removed from one parcel and joined with another parcel. The certificate of survey may, but is not required to, establish the exterior boundaries of the resulting parcels. However, the certificate of survey must show portions of the existing unchanged boundaries sufficient to clearly identify both the location and the extent of the boundary relocation; (3) If a boundary line will be completely eliminated, the certificate must establish the boundary of the resulting parcel. (5) If the certificate of survey invokes an exemption from subdivision review under MCA 76-3-207, the certificate of survey must bear, or be accompanied by, a certification by the county treasurer that all taxes and special assessments assessed and levied on the surveyed land have been paid. (6) For purposes of subsection 18.10.060.C.1, BMC3.a of this section, when the parcel of land for which an exemption from subdivision review is claimed is being conveyed under a contract-for-deed, the terms "property owner,” "landowner" and "owner" mean the seller of the parcel under the contract-for-deed. (7) Procedures for filing certificates of survey of divisions of land entirely exempted from the requirements of the Act. The divisions of land described in MCA 76-3-201, 76-3-205 and 76-3-209, and divisions of federally owned land made by a United States government agency are not required to be surveyed, nor must a certificate of survey or subdivision plat showing these divisions be filed with the county clerk PROOFS Page 501 of 977 and recorder. A certificate of survey of one of these divisions may, however, be filed with the county clerk and recorder if the certificate of survey meets the requirements for form and content for certificates of survey contained in this section and bears a certificate of the surveyor performing the survey citing the applicable exemption from the Act or, when applicable, that the land surveyed is owned by the federal government. b. Amended plats. Unless a division of land is exempt from subdivision review by MCA 76-3-201 or 76-3-207(1)(d) or (e), an amended plat shall not be filed by the county clerk and recorder unless it complies with the uniform standards for final subdivision plats specified in section 24.183.11073088.94.3003, ARM. A survey document that modifies lots in a platted and filed subdivision and invokes an exemption from subdivision review under MCA 76-3-201 or 76-3-207(1)(d) or (e), must be entitled "amended plat of the (name of subdivision)," but for all other purposes is to be regarded as a certificate of survey and subject to the requirements of subsection 18.10.060.C.1, BMC3.a of this section. (Ord. No. 1645, § 18.10.060, 8-15-2005; Ord. No. 1769, exh. C(18.10.060), 12-28-2009) Sec. 38.05.070. Exemption review criteria. A. The following criteria shall be used to ensure that exemptions are not claimed for the purposes of evading this chaptertitle or the Act. Appeals regarding a decision by the planning department that an exemption is an evasion of the Subdivision and Platting Act may be taken to the city commission in the manner established for administrative project decision appeals as set forth in section 18.66.030, BMC38.35.030. 1. A division of land is created to provide security for mortgages, liens or trust indentures for the purpose of construction, improvements to the land being divided or refinancing purposes (MCA 76-3-201(1)(b)). a. The proper use of the exemption is to provide security for construction mortgages, liens or trust indentures, when a survey of the parcel has been required. b. The city makes a rebuttable presumption that a division of land that is created to provide security is adopted for the purpose of evading the Act under the following conditions: (1) If the division of land is created for the purpose of conveyance to any entity other than the financial or lending institution to which the mortgage, lien or trust indenture was given or to a purchaser upon foreclosure of the mortgage, lien or trust indenture; or (2) The security is provided for construction or improvements on, or refinancing for, land other than on the exempted parcel. c. When the security for construction financing exemption is to be used, the landowner shall submit, in addition to such other documents as may be required, a written statement explaining: (1) How many parcels within the original tract will be created by use of 308 Note rule transfer. Ok. PROOFS Page 502 of 977 the exemption; (2) Who will have title to and possession of the remainder of the original parcel; and (3) A signed and notarized statement from a lending institution that the creation of the exempted parcel is necessary to secure a construction loan for buildings or other improvements on the parcel. d. The written statement and the instruments creating the security shall be filed at the same time as the survey with the clerk and recorder. 2. Divisions made outside of platted subdivisions for the purpose of relocating common boundary lines between adjoining properties (MCA 76-3-207(a)). a. The proper use of the exemption for relocating common boundary lines is to establish a new boundary between adjoining parcels of land outside of a platted subdivision, without creating an additional parcel. b. A certificate of survey for the relocation of common boundary lines may include five or fewer parcels and/or lots. c. Certificates of survey showing the relocation of common boundary lines must be accompanied by: (1) An original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly described parcel that is acquiring additional land; (2) Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error, or enhancement of the configuration of the property); and (3) The certificate of survey must bear the signatures of all landowners whose parcels are changed by the relocation, and show that the exemption was used only to change the location of a boundary line dividing two parcels, and must clearly distinguish the prior boundary location (shown, for example, by a dashed or broken line or a notation) from the new boundary (shown, for example, by a solid line or notation). d. The city makes a rebuttable presumption that a proposed relocation of common boundary lines is adopted for the purpose of evading the Act, if: (1) The planning department determines that the documentation submitted according to this section does not support the stated reason for relocation, or an additional parcel is created. 3. Division made outside of platted subdivisions for the purpose of a single gift or sale in each county to each member of the landowner's immediate family (MCA 76-3- 207(b)). a. A member of the immediate family is the spouse of the grantor, or whether by blood or adoption, a son, daughter, mother or father of the grantor. b. The proper use of the exemption as a gift or sale to a member of the immediate family is to convey one parcel of land outside of a platted subdivision to each member of the landowner's immediate family in each county, providing that the use of the exemption creates no more than one additional parcel of less than 160 acres in size. Each exemption under this PROOFS Page 503 of 977 section will be reviewed by the planning department under this chaptertitle. c. A certificate of survey for a family transfer may include more than one exempt parcel providing all parcels meet the criteria of this section. d. Certificates of survey showing the creation of new parcels of land pursuant to this exemption as a gift or sale to a member of the immediate family must be accompanied by an original deed transferring interest in the parcel being created, or a statement detailing where the deed is in escrow, how long it will be in escrow and authorization to contact the escrow agent for verification. e. The certificate of survey for an exemption for a family transfer must indicate the name of the grantee, the relationship of the grantee to the landowner and the parcel to be conveyed to the grantee. f. The city makes a rebuttable presumption that a family transfer is adopted for the purpose of evading this chaptertitle and the Act if it is determined that one or more of the following conditions exist: (1) The exemption would create more than one additional parcel of less than 160 acres. (2) The member of the landowner's immediate family would have received more than one exempted parcel in the county. 4. Division made outside of platted subdivisions by gift, sale or an agreement to buy and sell in which the parties to the transaction enter a covenant running with the land and revocable only by mutual consent of the city and the property owner that the divided land will be used exclusively for agricultural purposes (MCA 76-3- 207(c)). a. An agricultural exemption is a division of land made outside of a platted subdivision by gift, sale or agreement to buy and sell in which the parties to the transaction enter a covenant running with the land, revocable only by mutual consent of the city and the transferee/property owner, that the divided land will be used exclusively for agricultural purposes. No building or structure requiring water or sewer facilities shall be utilized on such a parcel. (1) A change in use of the land for anything other than agricultural purposes subjects the division to this chaptertitle and review under parts 5 and 6 of the Act. 5. For five or fewer lots within a platted subdivision, relocation of common boundaries and the aggregation of lots (MCA 76-3-207(d)). a. The proper use of the exemption for aggregation of lots and/or relocation of common boundaries is the rearrangement and/or aggregation of five or fewer lots within a platted subdivision which does not increase the total number of lots within the subdivision. The plat shall contain the title "amended plat" and must be filed with the county clerk and recorder. b. The amended plat showing the aggregation of lots and/or relocation of common boundary within a platted subdivision must be accompanied by: (1) An original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly described parcel that is acquiring additional land; (2) Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error, or enhancement of PROOFS Page 504 of 977 the configuration of the property); and (3) The amended plat must bear the signatures of all landowners whose parcels are changed by the relocation or aggregation. The amended plat must show that the exemption was used only to change the location of boundary lines or aggregate lots, and must clearly distinguish the prior boundary location (shown, for example, by a dashed or broken line or a notation) from the new boundary (shown, for example, by a solid line or notation). c. The city makes a rebuttable presumption that a proposed aggregation of lots and/or relocation of common boundaries within a platted subdivision is adopted for the purpose of evading the Act if it determines that six or more lots are affected by the proposal. d. Any division of lots which results in an increase in the number of lots or which redesigns or rearranges six or more lots must be reviewed as a subdivision and approved by the city prior to the filing of the final plat. 6. Divisions made for the purpose of relocating a common boundary line between a single lot within a platted subdivision and adjoining land outside a platted subdivision (MCA 76-3-207(d)). a. The proper use of the exemption for relocating common boundary lines is to establish a new common boundary line between a single lot within a platted subdivision and adjoining land outside a platted subdivision. A restriction or requirement on the original platted lot or original unplatted parcel continues to apply to those areas. b. A certificate of survey for the relocation of common boundary lines may include five or fewer parcels and/or lots. c. Certificates of survey showing the relocation of common boundary lines must be accompanied by: (1) A original deed exchanging recorded interest from every person having a recorded interest in adjoining properties for the entire newly- described parcel that is acquiring additional land; (2) Documentation showing the need or reason for the relocation (for example: structure encroachment, surveyor error, or enhancement of the configuration of the property); and (3) The certificate of survey must bear the signatures of all landowners whose parcels are changed by the relocation, and show that the exemption was used only to change the location of a boundary line dividing two parcels, and must clearly distinguish the prior boundary location (shown, for example, by a dashed or broken line or a notation) from the new boundary (shown, for example, by a solid line or notation). d. The city makes a rebuttable presumption that a proposed relocation of common boundary lines is adopted for the purpose of evading the Act, if: (1) The planning department determines that the documentation submitted according to this section does not support the stated reason for relocation, or an additional parcel is created. (Ord. No. 1645, § 18.10.070, 8-15-2005; Ord. No. 1769, exh. C(18.10.070), 12-28-2009) PROOFS Page 505 of 977 Sec. 38.05.080. Procedures for filing certificates of survey of divisions of land entirely exempted from the requirements of the act. A certificate of survey of a division of land entirely exempted from the requirements of this chaptertitle and the Act may be filed with the county clerk and recorder if it meets the requirements for form and content for certificates of survey contained in this section and bears a certificate of the surveyor performing the survey stating the applicable exemption from the Act. (Ord. No. 1645, § 18.10.080, 8-15-2005; Ord. No. 1769, exh. C(18.10.080), 12-28-2009) Sec. 38.05.090. Correction of errors. Correction of errors may be made by the submission of a corrected certificate of survey for the 309planning director's approval. (Ord. No. 1645, § 18.10.090, 8-15-2005; Ord. No. 1769, exh. C(18.10.090), 12-28-2009) Chapter 18.12. subdivision certificates ARTICLE 6. SUBDIVISION CERTIFICATES* *State law reference—Certificate of survey, MCA 76-3-404. Sec. 38.06.010. General. The certificates listed in sections 18.12.02038.06.020 through § 18.12.11038.06.110, BMC shall be shown on plats and certificates of survey, as appropriate. Other certificates than those shown may be required by the city when deemed appropriate. The proper notary block shall be used. (Ord. No. 1645, § 18.12.010, 8-15-2005; Ord. No. 1693, § 3(18.12.010), 2-20-2007) Sec. 38.06.020. Dedication or consent. A. All plats of subdivisions must contain a certificate of dedication or certificate of consent. In the case of corporate ownership, the proper corporation officer must sign, a corporate notary form must be used, and the corporate seal must be affixed. The certificate shall read as follows: 1. Certificate of dedication. CERTIFICATE OF DEDICATION (I), (We), the undersigned property owner do hereby certify that (I) (We) have caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by the plat hereunto included the following described tract of land town: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above-described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana; and the lands included in all streets, avenues, alleys, and parks or public lands shown on said plat are hereby granted and donated to the City of Bozeman 309 Is this the correct title? Yes. PROOFS Page 506 of 977 for the public use and enjoyment. Unless specifically listed herein, the lands included in all streets, avenues, alleys, and parks or public lands dedicated to the public are accepted for public use, but the city accepts no responsibility for maintaining the same. The owner(s) agree(s) that the city has no obligation to maintain the lands included in all streets, avenues, alleys, and parks or public lands, hereby dedicated to public use. The lands included in all streets, avenues, alleys, and parks or public lands dedicated to the public for which the city accepts responsibility for maintenance include (list specific streets, avenues, alleys for other public lands). The undersigned hereby grants unto each and every person firm or corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as “Utility Easement" to have and to hold forever. DATED this _____ day of __________,_____. (Acknowledged and notarized signatures of all record owners of platted property) 2. Certificate of consent. CERTIFICATE OF CONSENT (I), (We), the undersigned property owner(s), do hereby certify that (I), (We) caused to be surveyed, subdivided and platted into lots, blocks, streets, and alleys, and other divisions and dedications, as shown by this plat hereunto included, the following described tract of land, to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) The above described tract of land is to be known and designated as (name of subdivision), City of Bozeman, Gallatin County, Montana. The undersigned hereby grants unto each and every person, firm of corporation, whether public or private, providing or offering to provide telephone, electric power, gas, internet, cable television or other similar utility or service, the right to the joint use of an easement for the construction, maintenance, repair and removal of their lines and other facilities in, over, under and across each area designated on this plat as "Utility Easement" to have and to hold forever. DATED this _____ day of __________,_____. (Acknowledged and notarized signatures of all record owners of platted property) (Ord. No. 1645, § 18.12.030, 8-15-2005; Ord. No. 1693, § 3(18.12.020), 2-20-2007) PROOFS Page 507 of 977 Sec. 38.06.030. Mortgagee. In those cases where the area being platted or the plat of subdivision is subject to any liens, mortgages, claims, or other encumbrances by parties or other owners, the following certificate shall be required: CONSENT OF MORTGAGEE(S) (I), (We), the undersigned mortgagee(s) or encumbrancer(s), do hereby join in and consent to the described plat, releasing (my) (our) respective liens, claims or encumbrances as to any portion of said lands now being platted into streets, avenues, parks or other public areas which are dedicated to the City of Bozeman for the public use and enjoyment. DATED this ___day of __________, _____. (Acknowledged and notarized signature of all encumbrances of record) (Ord. No. 1645, § 18.12.030, 8-15-2005; Ord. No. 1693, § 3(18.12.030), 2-20-2007) Sec. 38.06.040. Park land. A. Cash-in-lieu of park land. Where there will be a cash donation in-lieu of park land dedication, plats of subdivision shall show the following certificate: CERTIFICATE ACCEPTING CASH DONATION IN-LIEU OF LAND DEDICATION In as much as dedication of park land within the platted area of (Subdivision Name) would be undesirable for park and playground purposes, it is hereby ordered by the city commission of Bozeman of the City of Bozeman, that land dedication for park purposes be waived and that cash- in-lieu, in the amount of __________ dollars, be accepted in accordance with the provisions of the Montana, Subdivision and Platting Act (MCA 76-3-101 through 76-3-625) and the Bozeman Municipal Code. DATED this _____ day of __________,_____. (Signature) City of Bozeman Director of Public Services B. Off-site park land dedication. Where park land will be provided off-site, in accordance with § 18.50.100section 38.27.100.A.4 or 5, BMC, plats of subdivision shall show the following certificate: CERTIFICATE ACCEPTING OFF-SITE PARK LAND DEDICATION PROOFS Page 508 of 977 In as much as an alternative to dedication of park land, for park and playground purposes within the platted area of (Subdivision Name), would be desirable, it is hereby ordered by the city commission of the City of Bozeman that land dedication for park purpose be provided off-site with land outside of the platted area of (Subdivision Name) in accordance with the provisions of the Montana Subdivision and Platting Act (MCA 76-3-101 through 76-3-625), and the Bozeman Municipal Code. The off-site park land dedication will be provided with the following described tract(s) of land to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) DATED this _____ day of __________,_____. (Signature) City of Bozeman Director of Public Services C. Park land dedication to School District 7. Where park land will be provided in accordance with § 18.50.100section 38.27.100.A.6, BMC, plats of subdivision shall show the following certificate: CERTIFICATE ACCEPTING PARK LAND DEDICATION TO SCHOOL DISTRICT 7 In as much as an alternative to dedication of park land, for park and playground purposes within the platted area of (Subdivision Name), would be desirable, it is hereby ordered by the city commission of the City of Bozeman that required land dedication for park purposes be met with land dedicated to School District 7 in accordance with the provisions of the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.)310, and the Bozeman Municipal Code. If School District 7 chooses to no longer use the land for school buildings and facilities, the ownership of the land shall revert to the City of Bozeman for park purposes and School District 7 shall transfer the land to the city with clear title and in a condition meeting the minimum development standards for parks established in section 18.50.080 BMC38.27.080. The land dedication will be provided with the following described tract(s) of land, to wit: Description (Exterior Boundary Description of Area Contained in Plat and Total Acreage) 310 It is cited without the et seq. above. Keep as is. PROOFS Page 509 of 977 DATED this _____ day of __________,_____. (Signature) City of Bozeman Director of Public Services (Signature) Chairman, School District 7 Board of Trustees Ord. No. 1645, § 18.12.040, 8-15-2005; Ord. No. 1693, § 3(18.12.040), 2-20-2007) Sec. 38.06.050. Surveyor. All subdivision plats or certificates of survey shall contain a certificate of surveyor which shall read as follows: CERTIFICATE OF SURVEYOR I, the undersigned, (Type or Print Name), Registered Land Surveyor, do hereby certify that between __________,_____, and __________,_____, I surveyed (Name of Subdivision or Certificate of Survey), and platted the same as shown on the accompanying plat (or certificate of survey) and as described in accordance with the provisions of the Montana Subdivision and Platting Act (MCA 76- 3-101 through 76-3-625), and the Bozeman Municipal Code. DATED this _____ day of __________,_____. (Signature) (Printed or Typed Name) Registration No. (Seal of Surveyor) (Ord. No. 1645, § 18.12.050, 8-15-2005; Ord. No. 1693, § 3(18.12.050), 2-20-2007) Sec. 38.06.060. Improvements. A. Where improvements are to be installed prior to final plat approval, the final plat of subdivision shall contain a certificate of completion of public improvements. The certificate shall list all completed and accepted improvements, and shall read as follows: CERTIFICATE OF COMPLETION OF IMPROVEMENTS I, (Name of Subdivider), and I, (Name of Subdivider's Registered Engineer), a registered professional engineer licensed to practice in the state of Montana, hereby certify that the following PROOFS Page 510 of 977 improvements, required to meet the requirements of this titlechapter 38 of the Bozeman Municipal Code or as a condition(s) of approval of (Name of Subdivision), have been installed in conformance with the approved plans and specifications, or financially guaranteed and covered by the improvements agreement accompanying this plat. Installed Improvements: (List improvements in accordance with § 18.12.060section 38.06.060.A). Financially Guaranteed Improvements: (List improvements in accordance with § 18.12.060section 38.06.060.B). The subdivider hereby warrants against defects in these improvements for a period of two years from the date of acceptance by the City of Bozeman. The subdivider grants possession of all public infrastructure improvements to the City of Bozeman and the city hereby accepts possession of all public infrastructure improvements, subject to the above indicated warranty. Signature of Subdivider (Date) __________ Signature, Number, and Seal of Engineer (Date) __________ Signature, Director of Public Services (Date) __________ B. If all required subdivision improvements will not be installed prior to final plat approval, and the final plat will be recorded subject to an improvements agreement and financial guarantee, this certificate shall be modified to also list all improvements not completed. (Ord. No. 1645, § 18.12.060, 8-15-2005; Ord. No. 1693, § 3(18.12.060), 2-20-2007) Sec. 38.06.070. Governing body. The city commission or their designated agent shall certify approval of the plat of subdivision. Said certificate shall read as follows: CERTIFICATE OF DIRECTOR OF PUBLIC SERVICES I, Director of Public Services, City of Bozeman, Montana, do hereby certify that the accompanying plat has been duly examined and has found the same to conform to the law, approves it, and hereby accepts the dedication to the City of Bozeman for the public use of any and all lands shown on the plat as being dedicated to such use. DATED this _____ day of __________,_____. (Signature), Director of Public Services (Ord. No. 1645, § 18.12.070, 8-15-2005; Ord. No. 1693, § 3(18.12.070), 2-20-2007) Sec. 38.06.080. Exclusion from MDEQ review. The following certificate shall be added to all subdivision plats to certify that adequate stormwater drainage and adequate municipal facilities will be provided. CERTIFICATE OF EXCLUSION FROM MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY REVIEW PROOFS Page 511 of 977 The (Name of Subdivision), Gallatin County, Montana, is within the City of Bozeman, Montana, a first-class municipality, and within the planning area of the Bozeman growth policy which was adopted pursuant to MCA 76-1-601 et seq., and can be provided with adequate stormwater drainage and adequate municipal facilities. Therefore, under the provisions of MCA 76-4-125(2)(d), this subdivision is excluded from the requirement for Montana Department of Environmental Quality review. DATED this _____ day of __________,_____. (Signature), Director of Public Services City of Bozeman, Montana (Ord. No. 1645, § 18.12.080, 8-15-2005; Ord. No. 1693, § 3(18.12.080), 2-20-2007) Sec. 38.06.090. County treasurer. All final subdivision plats, and certificates of survey unless prepared for a subdivision exemption to provide security for construction mortgages, liens or trust indentures, shall show the following certificate of county treasurer: CERTIFICATE OF COUNTY TREASURER I, (Name of County Treasurer), Treasurer of Gallatin County, Montana, do hereby certify that the accompanying plat (or certificate of survey) has been duly examined and that all real property taxes and special assessments assessed and levied on the land to be subdivided are paid. DATED this _____ day of __________,_____. (Signature), Treasurer of Gallatin County (Ord. No. 1645, § 18.12.090, 8-15-2005; Ord. No. 1693, § 3(18.12.090), 2-20-2007) Sec. 38.06.100. Clerk and recorder. All plats or certificates of survey shall show the following certificate of clerk and recorder: CERTIFICATE OF CLERK AND RECORDER I, (Name of Clerk and Recorder), Clerk and Recorder of Gallatin County, Montana, do hereby certify that the foregoing instrument was filed in my office at __________ o'clock, (a.m. or p.m.), this _____ day of __________, _____, and recorded in Book __________ of Plats on Page __________, Records of the Clerk and Recorder, Gallatin County, Montana. (Signature), Clerk and Recorder (Ord. No. 1645, § 18.12.100, 8-15-2005; Ord. No. 1693, § 3(18.12.100), 2-20-2007) PROOFS Page 512 of 977 Sec. 38.06.110. Certification of use of exemption claim. A. The following certificates shall be provided in a printed certificate on the amended plat or certificate of survey for allowed exemptions: 1. Certificate of governing body. CERTIFICATE OF GOVERNING BODY I, (Planning Director), do hereby certify that the accompanying (Certificate of Survey or Amended Plat) has been duly reviewed, and has been found to conform to the requirements of the Subdivision and Platting Act (MCA 76-3-101 et seq.), and the Bozeman Municipal Code. DATED this _____ day of __________,_____. (Signature), Planning Director 2. Certificate of exemption. Reference to exclude the survey from Montanastate department of environmental quality review can also be added to this certificate, as appropriate. CERTIFICATE OF EXEMPTION (I), (We) certify that the purpose of this survey is to (state exemption), and therefore this survey is exempt from review as a subdivision pursuant to MCA 76-3-207(1) (add appropriate subsection). DATED this _____ day of __________,_____. (Acknowledged and notarized signatures of all record owners of surveyed property) (Ord. No. 1645, § 18.12.110, 8-15-2005; Ord. No. 1693, § 3(18.12.110), 2-20-2007) CHAPTER 18.14. ZONING DISTRICTS AND ZONING MAP* ARTICLE 7. ZONING DISTRICTS AND ZONING MAP* *State law reference—Municipal zoning, MCA 76-2-301 et seq. Sec. 38.07.010. Use districts designated, zoning map adopted. A. The city is divided into zones, or districts, as shown on the official zoning map which, together with all explanatory matter thereon, is adopted by this reference and declared to be a part of this chaptertitle. B. 311For the purpose of this chaptertitle, the city is divided and classified into the following use districts: 311 Do you want the list of districts to be in the same order as they appear in the text? For example, UMU falls after B-3 in the text. Yes. PROOFS Page 513 of 977 R-S Residential Suburban District R-1 Residential Single-Household Low Density District R-2 Residential Two-Household Medium Density District R-3 Residential Medium Density District R-4 Residential High Density District R-O Residential-Office District RMH Residential Manufactured Home Community District B-1 Neighborhood Business District B-2 Community Business District B-3 Central Business District UMU Urban Mixed-Use District M-1 Light Manufacturing District M-2 Manufacturing and Industrial District B-P Business Park District PLI Public Lands and Institutions District NEHMU Northeast Historic Mixed-Use District HMU Historic Mixed-Use District NC Neighborhood Conservation Overlay District EO Entryway Corridor Overlay District CO Casino Overlay District C. Placement of any given zoning district on an area depicted on the zoning map indicates a judgment on the part of the city that the range of uses allowed within that district are generally acceptable in that location. It is not a guarantee of approval for any given use prior to the completion of the appropriate review procedure and compliance with all of the applicable requirements and development standards of this chaptertitle and other applicable policies, laws and ordinances. It is also not a guarantee of immediate infrastructure availability or a commitment on the part of the city to bear the cost of extending services. D. Individual zoning districts are adopted for the purposes described in section 18.02.04038.01.040. A variety of districts is established to provide locations for the many uses needed within a healthy and dynamic community. Each district, in conjunction with other standards incorporated in this chaptertitle, establishes allowable uses of property, separates incompatible uses, and sets certain standards for use of land. This provides predictability and reasonable expectation in use of land within particular zoning designations and sites. (Ord. No. 1645, § 18.14.010, 8-15-2005; Ord. No. 1681, § 1, 6-4-2007; Ord. No. 1769, exh. D(18.14.010), 12-28- 2009) Sec. 38.07.020. Official map availability, certification and authority; changes. A. The official maps shall be available in the planning department and shall bear a certificate with the signature of the mayor attested by the city clerk of the commission and the date of adoption of the ordinance codified in this chaptertitle. PROOFS Page 514 of 977 B. This certificate should read as follows: This is to certify that this is an Official Zoning Map referred to in section __ of Ordinance No. ___ of the City of Bozeman, Montana. Mayor Signature________________ Attested ____________________ Date of Adoption______________ C. Regardless of the existence of purported copies of the official zoning maps, which may from time to time be made or published, the official zoning maps kept in the planning department shall be the final authority as to the current zoning status of land and water areas, buildings and other structures in the city. (Ord. No. 1645, § 18.14.020, 8-15-2005; Ord. No. 1769, exh. D(18.14.020), 12-28-2009) Sec. 38.07.030. Official map replacement conditions. A. In the event that the official zoning maps become damaged, destroyed, lost or difficult to interpret because of the nature or number of changes or additions thereto, the city commission may adopt and certify new official zoning maps which shall supersede the prior official zoning maps. The new official zoning maps may correct drafting or other errors or omissions in the prior map, but no such corrections shall have the effect of amending the original official zoning maps or any subsequent amendment thereof. B. If any changes to the map are made by amendment of this chaptertitle in accordance with Chapter 18.70, BMCarticle 37 of this chapter, such changes shall be made to the official zoning maps and signed, dated and certified upon the map or upon the material attached thereto. C. The new official zoning maps shall be identified by signature of the mayor attested by the city clerk of the commission. The certificate should read as follows: This is to certify that this Official Zoning Map supersedes and replaces the Official Zoning Map adopted as part of Ordinance No.___ of the City of Bozeman, Montana. Mayor ___________ Attested __________ Date of Adoption _________ (Ord. No. 1645, § 18.14.030, 8-15-2005; Ord. No. 1769, exh. D(18.14.030), 12-28-2009) Sec. 38.07.040. Boundary interpretation guidelines. A. Where uncertainty exists as to the boundaries of districts as shown on the official zoning map, the boundaries shall be interpreted as following the nearest logical line to that shown: 1. Boundaries indicated as approximately following the centerline of streets, highways or alleys shall be construed to follow such centerlines; 2. Boundaries indicated as approximately following platted lot lines shall be construed as following such lot lines; 3. Boundaries indicated as approximately following city limits shall be construed as following such city limits; 4. Boundaries indicated as following railroad lines shall be construed to be midway between the main track; 5. Boundaries indicated as following the centerline of streams, rivers, canals or ditches shall be construed to follow such centerlines; and PROOFS Page 515 of 977 6. Boundaries indicated as parallel to or extensions of features indicated on the official zoning map shall be determined by the scale of the map. B. Where physical or cultural features existing on the ground are at variance with those shown on the official zoning map, or where other circumstances or controversy arise over district boundaries, the planning director shall interpret the district boundary. Such interpretation may312 be is subject to appeal to the city commission. C. Where district boundaries divide a lot or parcel into two or more districts, the entire lot or parcel shall be deemed to have only the characteristics and uses of the most restrictive district that any part of the lot or parcel rests within. However, for properties which lie partially within a specified overlay district, the planning director may determine that overlay district regulations shall apply only to that portion of the property lying within the specified overlay district. The criteria for making such a determination shall include an evaluation of site topography and the degree to which the development portion of the property lying outside of the overlay district is integrated with the development lying within the district. (Ord. No. 1645, § 18.14.040, 8-15-2005; Ord. No. 1769, exh. D(18.14.040), 12-28-2009) Sec. 38.07.050. Classification of particular uses; planning director and city commission authority. A. The planning director shall determine the appropriate classification of a particular use. In making this determination, the planning director shall find: 1. That the use is the same as one or more uses permitted in the district wherein it is proposed to be located; or 2. That the use is so similar to one or more uses permitted in the district wherein it is proposed to be located as to be interpreted as the same, so long as: a. The use and its operation are compatible with the uses permitted in the district wherein the use is proposed to be located; b. The use will not cause substantial injury to values of property in the neighborhood or district wherein it is proposed to be located; and c. Neither the intent of this chaptertitle nor the intent of the district will be abrogated by such classification. d. Persons objecting to decision of the planning director regarding a classification of a use carry the burden of proof to establish error in the decision. B. If a question arises concerning the appropriate classification of a particular use, the planning director may submit the question to the city commission to determine whether the particular use is the same or so similar as to be interpreted the same as a listed permitted or conditional use. In making such a determination, the city commission shall find that the criteria set forth in either subsection A.1 or 2 of this section are met. C. If a specific use is not listed and cannot be interpreted to be the same, or so similar so as to be interpreted the same, as a listed accessory, principal or conditional use, the use shall not be allowed. However, an amendment to the text of this chaptertitle may be submitted for review and approval pursuant to the requirements of this chaptertitle to allow such use as a listed principal, conditional or accessory use. (Ord. No. 1645, § 18.14.050, 8-15-2005; Ord. No. 1769, exh. D(18.14.050), 12-28-2009) 312 Should the word “may” be changed to “shall”? Change “may” to “is.” PROOFS Page 516 of 977 Sec. 38.07.060. Zoning of annexed territory. A. All territory which may hereafter be annexed to the city shall, in conjunction with the annexation, be the subject of a zone map amendment in order to be designed and assigned to a city zoning district. B. Areas of annexed public right-of-way shall be considered to be zoned according to the provisions of section 18.14.040.38.07.040.A. The city commission shall determine the appropriate zoning for any and all areas to be annexed to the city but shall request a recommendation from the zoning commission and shall take into consideration the Bozemancity growth policy. Any ordinance adopting such zoning amendment shall not be effective prior to the effective date of such annexation. (Ord. No. 1645, § 18.14.060, 8-15-2005; Ord. No. 1769, exh. D(18.14.060), 12-28-2009) CHAPTER 18.16. RESIDENTIAL ZONING DISTRICTS ARTICLE 8. RESIDENTIAL ZONING DISTRICTS Sec. 38.08.010. Intent and purpose of residential zoning districts. A. The intent and purpose of the residential zoning districts is to establish areas within Bozemanthe city that are primarily residential in character and to set forth certain minimum standards for development within those areas. The purpose in having more than one residential district is to provide opportunities for a variety of housing types and arrangements within the community while providing a basic level of predictability. There is a rebuttable presumption that the uses set forth for each district will be compatible with each other when the standards of this chaptertitle are met and any applicable conditions of approval have been satisfied. Additional requirements for development apply within overlay districts. All development is subject to section 18.02.050, BMC38.01.050. Residential density is correlated with many community goals and objectives that are contained in the city's adopted growth policy, as well as many standards and purposes of this chaptertitle. Section 18.16.09038.08.090 sets standards for minimum densities in residential districts which will advance these goals, objectives, and purposes. 1. The intent and purpose of the R-S residential suburban district is to allow open space, resource protection and primarily single-household development in circumstances where environmental constraints limit the desirable density. All new subdivision and site plan developments in this district shall be subject to the provisions of chapter 18.36, BMCarticle 20 of this chapter, pertaining to planned unit development, and shall be developed in compliance with the adopted Bozemancity growth policy. 2. The intent of the R-1 residential single-household low density district is to provide for primarily single-household residential development and related uses within the city at urban densities, and to provide for such community facilities and services as will serve the area's residents while respecting the residential character and quality of the area. 3. The intent of the R-2 residential two-household medium density district is to provide for one- and two-household residential development at urban densities within the city in areas that present few or no development constraints, and for community facilities to serve such development while respecting the residential quality and nature of the area. 4. The intent of the R-3 residential medium density district is to provide for the development of one- to five-household residential structures near service facilities within the city. It should provide for a variety of housing types to serve the varied PROOFS Page 517 of 977 needs of households of different size, age and character, while reducing the adverse effect of nonresidential uses. 5. The intent of the R-4 residential high density district is to provide for high-density residential development through a variety of housing types within the city with associated service functions. This will provide for a variety of compatible housing types to serve the varying needs of the community's residents. Although some office use is permitted, it shall remain as a secondary use to residential development. Secondary status shall be as measured by percentage of total building area. 6. The intent of the R-O residential-office district is to provide for and encourage the development of multihousehold and apartment development and compatible professional offices and businesses that would blend well with adjacent land uses. The primary use of a lot, as measured by building area, permitted in the R-O district is determined by the underlying growth policy land use designation. Where the district lies over a residential growth policy designation the primary use shall be non-office uses; where the district lies over a nonresidential designation the primary use shall be office and other nonresidential uses. Primary use shall be measured by percentage of building floor area. 7. The intent of the RMH residential manufactured home community district is to provide for manufactured home community development and directly related complementary uses within the city at a density and character compatible with adjacent development. The district is intended to be residential in character and consistent with the standards for other forms of residential development permitted by this chaptertitle. (Ord. No. 1645, § 18.16.010, 8-15-2005; Ord. No. 1693, § 4(18.16.010), 2-20-2007; Ord. No. 1709, § 2(18.16.010), 7-16-2007; Ord. No. 1761, exh. A(18.16.010), 7-6-2009; Ord. No. 1769, exh. E(18.16.010), 12-28- 2009) Sec. 38.08.020. Authorized uses. A. Uses in the various residential districts are depicted in the Table 38.08.020 in subsection B of this section. Principal uses are indicated with a "P," conditional uses are indicated with a "C," accessory uses are indicated with an "A" and uses which are not permitted with the district are indicated by a "-." B. Additional uses for telecommunication uses are contained in chapter18.54, BMCarticle 29 of this chapter. Table 38-1 38.08.020 Authorized Uses Table of Residential Uses R-S R-1 R-2 R-3 R-4 R-O RMH Accessory dwelling units8, 9 C C P P P P - Agricultural uses on 2.5 acres or more2 P - - - - - - Agricultural uses on less than 2.5 acres2 C - - - - - - Apartments/apartment building, as defined in - - - - P P - PROOFS Page 518 of 977 chapter18.80article 42 of this chapter Assisted living/elderly care facilities - - - C C P - Bed and breakfast C C C C P P - Commercial stable C - - - - - - Community centers C C C C C P C Community residential facilities (with more than four residents) C C C P P P C Cooperative housing C C C P P P C Day care centers C C C P P P C Essential services (Type I) P P P P P P P Essential services (Type II) C - - - - - C Extended stay lodgings C C C P P P - Family day care home P P P P P P P Fences A A A A A A A Fraternity and sorority houses - - - C P P - Golf courses C C C - - - C Greenhouses A A A A A A - Group day care home P P P P P P P Guesthouses A A A A A A - Home-based businesses5 A/C A/C A/C A/C A/C A/C A/C Lodginghouses - - - C P P - Offices - - - - C3 P - Other buildings and structures typically accessory to authorized uses A A A A A A A Private garages A A A A A A A Private or jointly owned recreational facilities A A A A A A A Private stormwater control facilities A A A A A A A PROOFS Page 519 of 977 Private vehicle and boat storage A A A A A A A/C4 Public and private parks P P P P P P P Manufactured homes on permanent foundations1 P P P P P P P Manufactured home communities - - - - - - P Medical offices, clinics, and centers - - - - C P - Recreational vehicle parks C - - - - - P Signs, subject to Chapter 18.52, BMCarticle 28 of this chapter A A A A A A A Single-household dwelling P P P P P P P Temporary buildings and yards incidental to construction work A A A A A A A Temporary sales and office buildings A A A A A A A Three- or four- household dwelling - - - P P P - Two-household dwelling - - P P P P - Townhouses (two attached units) P7 P7 P P P P P7 Townhouses (five attached units or less) - - - P6 P P - Townhouses (more than five attached units) - - - - P P - Tool sheds for storage of domestic supplies A A A A A A A Uses approved as part of a PUD per Chapter 18.36, BMCarticle 20 of this chapter C C C C C C C Veterinary uses C - - - - - - Notes: PROOFS Page 520 of 977 1Manufactured homes are subject to the standards of section 18.40.130, BMC38.22.130. 2Agricultural uses include barns and animal shelters, and the keeping of animals and fowl, together with their dependent young, as hereinafter set forth per 2.5 acres: one horse or one cow; two sheep or two goats; ten rabbits; 36 fowl (chickens, pheasants, pigeons, etc.) or six larger fowl (ducks, geese, turkeys, etc.). For larger parcels the planning director may determine that a larger number of livestock is consistent with the requirements of this section. 3Only when in conjunction with dwellings. 4Storage for more than three recreational vehicles or boats. 5Home-based businesses are subject to the terms and thresholds of section 18.40.110, BMC38.22.110. 6In the R-3 district, townhouse groups shall not exceed 120 feet in total width 7In the R-S, R-1, and RMH district townhomes are only allowed when utilized to satisfy the requirements of chapter 10, article 8, Affordable Housing. May only be utilized in developments subject to chapter 10, article 17.02, BMC8. 8Not permitted on reduced size lots for work force housing as described in chapter 10, article 17.02, BMC8. 9Accessory dwelling units in the RS and R1 districts shall be permitted to be placed above garages only in subdivisions receiving preliminary plat approval after January 1, 1997. (Ord. No. 1645, § 18.16.020, 8-15-2005; Ord. No. 1693, § 4(18.16.020), 2-20-2007; Ord. No. 1709, § 2(18.16.020), 7-16-2007; Ord. No. 1761, exh. A (18.16.020), 7-6-2009; Ord. No. 1769, exh. E(18.16.020), 12-28- 2009) Sec. 38.08.030. Lot coverage and floor area. A. Maximum lot coverage by principal and accessory buildings shall be: 1. For newly created lots in the R-S district, determined through the PUD review procedures set forth in chapter 18.36, BMCarticle 20 of this chapter, in compliance with the adopted Bozemancity growth policy. a. For existing lots in the R-S district, not more than 25 percent of the lot area shall be covered by principal and accessory buildings. 2. Not more than 40 percent of the lot area in the R-1, R-2, R-3 and RMH districts. 3. Not more than 50 percent in the R-4 district. 4. Not more than 40 percent for residential uses or 60 percent for nonresidential or mixed uses in the R-O district. 5. In all residential zoning districts for those lots used to satisfy the requirements of chapter 10, article 17.02 BMC8, not more than 60 percent of the lot area shall be covered by principal and accessory buildings. When a larger lot has a portion of its total dwellings subject to the requirements of chapter 10, article 17.02, BMC8, either directly or inherited from a previous subdivision, the portion used for those dwellings may have up to 60 percent of the lot area covered by principal and accessory buildings. B. Minimum floor area requirements for each dwelling in all districts shall be that area required by the city's adopted International Building Code. C. The total floor area of the unit dwelling built on a lot which was subject to the PROOFS Page 521 of 977 provisions of section 18.42.180 Ordinance 1604 (Exhibit A) (Code 1982, § 18.42.180),313 Provision of restricted size lots and units, (excluding area used for a garage) shall not exceed a floor area ratio of 1:3.3. For example, if the lot is 5,000 square feet the square footage of the house can not exceed 1,515, or a ratio of one square foot of floor area for each 3.3 square feet of lot area. (Ord. No. 1645, § 18.16.030, 8-15-2005; Ord. No. 1693, § 4(18.16.030), 2-20-2007 Ord. No. 1709, § 2(18.16.030), 7-16-2007; Ord. No. 1761, exh. A (18.16.030), 7-6-2009; Ord. No. 1769, exh. E(18.16.030), 12-28- 2009) Sec. 38.08.040. Lot area and width. A. All lots shall have a minimum area as set forth in the Table 38.08.040-1 below and are cumulative. These minimums assume a lack of development constraints. Each lot must have a usable lot area of at least 50 percent of the total minimum lot area: Table 38-2 38.08.040-1 Lot Area Table Minimum Lot Area in Square Feet1 R-S R-1 R-2 R-3 R-4 R-O RMH Single-household dwelling See Subsection C of this section 5,0001 5,0001 5,0001 5,0001 5,0001 5,0001 Single-household dwelling (only for dwellings to satisfy minimum requirements of chapter 10, article 17.02, BMC8)7 2,7008 2,7008 2,7008 2,7008 2,7008 2,7008 2,7008 Two-household dwelling - - 6,000 6,000 6,000 6,000 - Two-household dwelling (only for dwellings to satisfy minimum requirements of chapter 10, article 17.02, BMC8)7 - - 2,500 2,500 2,500 2,500 - Lot area per dwelling in three- or four-household dwelling configurations - - - 3,000 3,000 3,000 - Lot area per dwelling in three- or four-household dwelling configurations (only for dwellings to satisfy minimum requirements of - - - 2,500 2,500 2,500 - 313 Unable to locate and convert this cite. Please provide correct cite and we will update. Please amend subsection C to read: “The total floor area of the unit dwelling built on a lot which was subject to the provisions of Ordinance 1604 (Ex. A) (Code 1982, §18.42.180) section 18.42.180,298 Provision of restricted size lots and units, (excluding area used for a garage) shall not exceed a floor area ratio of 1:3.3. For example, if the lot is 5,000 square feet the square footage of the house cannot exceed 1,515, or a ratio of one square foot of floor area for each 3.3 square feet of lot area.” PROOFS Page 522 of 977 chapter 10, article 17.02, BMC8)7 Townhouses - - 3,0006 3,0002 3,0002 3,0002 - Townhouses (only for dwellings to satisfy minimum requirements of chapter 10, article 17.02, BMC8)7 2,500 2,500 2,500 2,500 2,500 2,500 2,500 Apartments - first dwelling - - - - 5,000 5,000 - Apartments - each dwelling after the first - - - - 1,200 1,200 - Apartments - each dwelling after the first (only for dwellings to satisfy minimum requirements of chapter 10, article 17.02, BMC8)7 - - - - 900 900 - Additional area required for an accessory dwelling unit3 1,0004 1,000 1,0005 1,0005 1,0005 1,0005 - All other uses 5,0001 5,0001 5,0001 5,0001 5,0001 5,0001 5,0001 Notes: 1In order to comply with the standards contained in Title 18this chapter, lot area in excess of the required minimum may be needed; for example for corner lots, parking, landscaping or large residential structures, and may be necessary for property adjacent to watercourses, ridgelines, or other environmental features in order to provide an appropriate buildable area on the lot. 2For townhouse clusters the minimum average lot area per dwelling in an individual structure shall be 3,000 square feet. 3As defined in chapter18.80, BMCarticle 42 of this chapter and subject to the requirements of chapter18.40, BMCarticle 22 of this chapter. 4Extra lot size requirement does not apply when R-S lots are larger than 6,000 square feet. 5Second dwellings in accessory buildings are subject to all restrictions in this chaptertitle relating to accessory buildings. Lot area and width shall be provided as if the dwelling were attached to the principal use. Dwellings to be developed under this option are subject to §18.40.030, BMCsection 38.22.030. 6Per townhouse lot. 7May only be utilized in developments subject to chapter 10, article 17.02, BMC8. 8A larger lot size may be required to comply with the requirements of section 17.02.05010.08.060, Table 10.08.060, Mix and Price of Dwelling Units B. All lots shall have a minimum width as set forth in the Table below38.08.040-2. These minimums assume a lack of development constraints. Table 38-3 38.08.040-2 Lot Width Table Minimum Lot Width in Feet R-S R- 1 R- 2 R-3 R-4 R-O RMHPROOFS Page 523 of 977 Single-household dwelling See subsection C of this section 50 50 50 50 50 50 Single-household dwelling (only for dwellings to satisfy requirements of chapter 10, article 17.02, BMC8) See subsection C of this section 30 30 30 30 30 30 Two household dwelling - - 60 60 50 50 - Accessory dwelling unit1 50 50 60 60 60 60 - Dwellings in three- or four-household dwelling configurations - - - 60 60 60 - Townhouses 30 30 30 Width of interior units Width of interior units Width of interior units - All other uses See subsection C of this section 50 50 50 50 50 50 Notes: 1 Second dwellings in accessory buildings are subject to all restrictions in this chaptertitle relating to accessory buildings. Lot area and width shall be provided as if the dwelling were attached to the principal use. Dwellings to be developed under this option are subject to §18.40.030, BMCsection 38.22.030. C. Lot area and width for R-S residential suburban lots. 1. Lot area and width for newly created lots in R-S districts shall be determined through the PUD review procedures set forth in chapter 18.36, BMCarticle 20 of this chapter and in compliance with the adopted Bozemancity growth policy. Unless otherwise approved through the planned unit development process, the average lot size shall be one acre. 2. Existing lots in the R-S district not utilizing a community water and/or sewer system shall be considered nonconforming lots if less than one acre in area and/or 100 feet in width and subject to Chapter18.66, BMCarticle 35 of this chapter. Existing lots in the R-S district utilizing a community water and/or sewer system shall be considered nonconforming lots if less than one-half acre in area and/or 100 feet in width and subject to Chapter18.60, BMCarticle 32 of this chapter. D. Lot area and width may be reduced to allow a density bonus through the PUD process. Amount of a bonus, methodology for calculating the bonus, and standards for allowing a bonus are described in section 18.36.09038.20.090.E.2.b(6), BMC. (Ord. No. 1645, § 18.16.040, 8-15-2005; Ord. No. 1693, § 4(18.16.040), 2-20-2007; Ord. No. 1709, § 2(18.16.040), 7-16-2007; Ord. No. 1761, exh. A (18.16.040), 7-6-2009; Ord. No. 1769, exh. E(18.16.040), 12-28- 2009) Sec. 38.08.050. Yards. A. Minimum yards required for the R-1, R-2, R-3, R-4, R-O and RMH districts are: PROOFS Page 524 of 977 1. Front yard: a. Adjacent to arterial streets as designated in the Bozemancity growth policy, 25 feet b. Adjacent to collector streets as designated in the Bozemancity growth policy, 20 feet c. Adjacent to local streets, 15 feet 2. Rear yard: 20 feet a. Adjacent to arterial streets as designated in the Bozemancity growth policy, 25 feet 3. Side yard: five feet; or zero feet for interior walls of townhouses. 4. All vehicle entrances, oriented to the street, into garages shall be no closer than 20 feet to a property line, unless explicitly authorized otherwise under this chaptertitle. B. Minimum yards required for the R-S district are: 1. For lots created in the R-S district prior to the effective date of these regulations ordinance from which this section is derived: a. Front yard - 35 feet b. Rear yard - 25 feet c. Side yard - 25 feet 2. Minimum yard requirements for newly created R-S lots shall be determined through the PUD review process. 3. All pens, coops, barns, stables or permanent corrals shall be set back not less than 100 feet from any residence or public road and not less than 50 feet from any property line. C. When a lot has one or more principal buildings which are oriented to place the functional rear of a building adjacent to a side lot line a setback from the property line equal to that for a rear yard shall be provided. D. All yards are subject to the provisions of sections 18.30.06038.16.060, 18.38.06038.21.060, 18.42.10038.23.100, 18.44.10038.24.100 and 18.48.100, BMC38.26.100. (Ord. No. 1645, § 18.16.050, 8-15-2005; Ord. No. 1693, § 4(18.16.050), 2-20-2007; Ord. No. 1709, § 2(18.16.050), 7-16-2007; Ord. No. 1761, exh. A (18.16.050), 7-6-2009; Ord. No. 1769, exh. E(18.16.050), 12-28- 2009) Sec. 38.08.060. Building height. Maximum building height for each residential district shall be as follows: Table 38-4 38.08.060 Residential Building Height Table Maximum Building Height in Feet Roof Pitch in Feet R-S R- 1 R- 2 R- 3 R- 4 R- O RMH Less than 3:12 24 24 24 32 34 34 24 PROOFS Page 525 of 977 3:12 or greater but less than 6:12 30 28 28 38 38 38 28 6:12 or greater but less than 9:12 34 32 32 40 42 42 32 Equal to or greater than 9:12 38 36 36 42 44 44 36 (Ord. No. 1645, § 18.16.060, 8-15-2005; Ord. No. 1693, § 4(18.16.060), 2-20-2007; Ord. No. 1709, § 2(18.16.060), 7-16-2007; Ord. No. 1761, exh. A (18.16.060), 7-6-2009; Ord. No. 1769, exh. E(18.16.060), 12-28- 2009) Sec. 38.08.070. Residential garages. A. Attached residential garages shall not obscure the entrance to the dwelling. Attached garages are required to be clearly subordinate to the dwelling. A subordinate garage has two or more of the following characteristics: 1. The principal facade of the dwelling has been emphasized through the use of architectural features such as, but not limited to, porches, fenestration treatment, architectural details, height, orientation or gables, so that the non-garage portion of the residence is visually dominant; 2. The facade with the garage vehicle entrance is recessed at least four feet behind the facade of the dwelling containing the main entry; and/or 3. The area of the garage vehicle door comprises 30 percent or less of the total square footage, exclusive of any exposed roof areas, of the principal facade of the dwelling. Principal facade shall include all wall areas parallel to the garage door. B. Alternative means of addressing the intent of this section will be considered. Detached garages are encouraged when they are compatible with the existing neighborhood development pattern. Vehicular garage access on nonprincipal facades and/or alleys is also encouraged. (Ord. No. 1645, § 18.16.070, 8-15-2005; Ord. No. 1693, § 4(18.16.070), 2-20-2007; Ord. No. 1709, § 2(18.16.070), 7-16-2007; Ord. No. 1761, exh. A (18.16.070), 7-6-2009; Ord. No. 1769, exh. E(18.16.070), 12-28- 2009) Sec. 38.08.080. Additional RMH district performance standards. A. Development of any parcel of land within the RMH district shall be subject to all applicable requirements of chapterarticles 18.40, BMC22, Standards for Specific Uses, and Chapter 18.42, BMC23, Development Standards of this chapter, including, but not limited to, fences, parking, signs, landscaping and home occupations. In addition, manufactured home communities will be subject to the following general requirements: 1. Minimum area for manufactured home community district. a. The minimum total RMH district area shall be no less than ten acres unless the applicant can show that the minimum area requirements should be waived because the waiver would be in the public interest and that one or both of the following conditions exist: (1) Unusual physical features of the property itself or of the surrounding area such that development under the standard provisions of this chaptertitle would not be appropriate in order to conserve a physical or terrain feature of importance to the neighborhood or community; or (2) The property is adjacent to or across the street from property which has been developed under the provisions of this section and will contribute to the amenities of the area. PROOFS Page 526 of 977 b. Waiver of the ten-acre minimum may only be granted by the city commission. (Ord. No. 1645, § 18.16.080, 8-15-2005; Ord. No. 1693, § 4(18.16.080), 2-20-2007; Ord. No. 1709, § 2(18.16.080), 7-16-2007; Ord. No. 1761, exh. A (18.16.080), 7-6-2009; Ord. No. 1769, exh. E(18.16.080), 12-28- 2009) Sec. 38.08.090. Minimum density. A. New residential development shall provide a minimum net density. A minimum is required to support efficiency in use of land and provision of municipal services, and to advance the purposes and goals of this chaptertitle and the adopted growth policy. Density may be achieved by averaging lot sizes over an entire development. 1. Minimum densities are: a. R-S -- None b. R-1, R-2, R-3, RMH -- five dwellings per net acre c. R-4 -- eight dwellings per net acre d. R-O -- six dwellings per net acre when residences are the primary use of the land. (Ord. No. 1769, exh. E(18.16.090), 12-28-2009) ARTICLE 9. RESIDENTIAL EMPHASIS MIXED USE (RESERVED) CHAPTER 18.18. COMMERCIAL ZONING DISTRICTS ARTICLE 10. COMMERCIAL ZONING DISTRICTS Sec. 38.10.010. Intent and purpose of commercial zoning districts. A. The intent and purposes of the commercial zoning districts are to establish areas within Bozemanthe city that are primarily commercial in character and to set forth certain minimum standards for development within those areas. The purpose in having more than one commercial district is to provide opportunities for a variety of employment and community service opportunities within the community, while providing predictability. There is a rebuttable presumption that the uses set forth for each district will be compatible with each other both within the individual districts and to adjoining zoning districts when the standards of this chaptertitle are met and any applicable conditions of approval have been satisfied. Additional requirements for development apply within overlay districts. 1. The intent of the B-1 neighborhood business district is to provide for smaller scale retail and service activities frequently required by neighborhood residents on a day to day basis, as well as residential development as a secondary purpose, while still maintaining compatibility with adjacent residential land uses. Development Scale and pedestrian orientation are important elements of this district. 2. The intent of the B-2 community business district is to provide for a broad range of mutually supportive retail and service functions located in clustered areas bordered on one or more sides by limited access arterial streets. 3. The intent of the B-3 central business 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. Room should be provided in appropriate areas for logical and planned expansion of the present district. a. It is the intent of this district to encourage high volume, pedestrian-oriented PROOFS Page 527 of 977 uses in ground floor space in the "core area" of Bozemanthe city's central business district, i.e., along Main Street from Grand to Rouse and to the alleys one-half block north and south from Main Street. Lower volume pedestrian uses such as professional offices may locate on ground floor space in the B-3 area outside the above-defined core. (Ord. No. 1645, § 18.18.010, 8-15-2005; Ord. No. 1693, § 5(18.18.010), 2-20-2007; Ord. No. 1709, § 3(18.18.010), 7-16-2007; Ord. No. 1761, exh. B(18.18.010), 7-6-2009) Sec. 38.10.020. Authorized uses. A. Uses in the various commercial districts are depicted in the Table 38.10.020 below. Principal uses are indicated with a "P," conditional uses are indicated with a "C," accessory uses are indicated with an "A," and uses which are not permitted within the district are indicated by a "-." A particular proposed development or use may fall under more than one listed category with different review processes. In such cases, the more stringent review process shall apply. B. The uses listed are deliberately broad and some are given special definitions in chapter 18.80, BMCarticle 42 of this chapter. The intent of this method is to provide general guidance for uses while allowing the unique needs and circumstances of each proposal to be specifically addressed through the review process. Some uses are the subject of special regulations contained in chapter18.40, BMCarticle 22 of this chapter. C. Additional uses for telecommunications are established in chapter18.54, BMCarticle 29 of this chapter. Table 19-1 38.10.020 Table of Commercial Uses Authorized Uses Table of Commercial Uses B-1 B-2 B-3 Ambulance service - P P Apartments and apartment buildings6, as defined in this chaptertitle P P1/C P3 Arts and entertainment center, as defined in this chaptertitle P P P Assisted living/elderly care facilities - C - Automobile fuel sales or repair, as defined in this chaptertitle C C C Automobile parking lot or garage (public or private) P P P Automobile washing establishment C P C Banks and other financial institutions P P P Business, technical or vocational school - C P3 Bus terminals - C C Community centers P P P3 Convenience uses C P C Convenience use restaurant P P P Day care centers P P P PROOFS Page 528 of 977 Essential services (Type I) P P P Essential services (Type II) - P P Extended-stay lodgings - P P Food processing facilities - C - Frozen food storage and locker rental - P - Health and exercise establishments P1/C P P Hospitals - P C Hotel or motel - P P Laboratories, research and diagnostic - P P3 Laundry, dry cleaning - C C Light goods repair, as defined in this chaptertitle - C A Lodginghouses - C C3 Manufacturing, light and completely indoors - C - Mortuary - C C Museum - C C Medical and dental clinics P1/C P P Meeting hall - P P Offices, as defined in this chaptertitle P1/C P P3 Other buildings and structures typically accessory to permitted uses A A A Parking facilities P P P3 Personal and convenience services, as defined in this chaptertitle P P P Pet grooming shop P P P Printing offices and publishing establishments - - C Private club, fraternity, sorority or lodge - P P Public buildings P P P Refuse and recycling containers A A A Research laboratories - P P Restaurants P5 P P Retail uses, as defined in this chaptertitle P2 P2 P2 Retail, large scale - P - Sales of alcohol for on-premises consumption7, C C C Sign paint shops (not including neon sign fabrication) - P C Upholstery shops (excluding on site upholstery service for cars, boats, trailers, trucks and other motorized vehicles requiring overnight storage) - P P3 Veterinary clinic - C - PROOFS Page 529 of 977 Wholesale distributors with on-premises retail outlets, providing warehousing is limited to commodities which are sold on the premises - C - Wholesale establishments that use samples, but do not stock on premises - P P Any use, except adult businesses and casinos approved as part of a planned unit development subject to the provisions of chapter 18.36, BMCarticle 20 of this chapter C C C Notes: 1When located on the second or subsequent floor, or basement as defined in chapter18.80, BMCarticle 42 of this chapter. 2Excluding adult businesses, and large scale retail, as they are defined in chapter18.80, BMCarticle 42 of this chapter. 3Except on ground floor in the core area as defined in this chapterarticle. 4Private arts instruction shall only be on the second or subsequent floor in the core area as defined in this chapterarticle. 5Exclusive of drive-ins. 6May be subject to the provisions of chapter 10, article 17.02, BMC8. 7Also subject to chapter 4, article 5.12, BMC2. (Ord. No. 1645, § 18.18.020, 8-15-2005; Ord. No. 1693, § 5(18.18.020), 2-20-2007; Ord. No. 1709, § 3(18.18.020), 7-16-2007; Ord. No. 1761, exh. B(18.18.020), 7-6-2009) Sec. 38.10.030. Lot coverage and floor area. A. In the B-1, B-2 and B-3 districts, the entire lot, exclusive of required yards and parking, may be occupied by the principal and accessory buildings. This chaptertitle provides opportunities for parking requirements to be met by shared and off-site parking as allowed by chapter18.46, BMCarticle 25 of this chapter. B. In the B-1 district, the footprint of individual buildings shall not exceed 5,000 square feet. C. Minimum floor area requirements for each dwelling in all districts shall be that area required by the city's adopted International Building Code. (Ord. No. 1645, § 18.18.030, 8-15-2005; Ord. No. 1693, § 5(18.18.030), 2-20-2007; Ord. No. 1709, § 3(18.18.030), 7-16-2007; Ord. No. 1761, exh. B(18.18.030), 7-6-2009) Sec. 38.10.040. Lot area and width. A. All newly created lots shall have a minimum area adequate to provide for required yards and parking but in no case shall they be less than: 1. B-1: 5,000 square feet. 2. B-2: No minimum size. 3. B-3: No minimum size. B. Lot width for all newly created lots shall not be less than: 1. B-1: 50 feet. 2. B-2: 100 feet, except in conservation overlay district shall have no minimum width. PROOFS Page 530 of 977 3. B-3: No minimum width. (Ord. No. 1645, § 18.18.040, 8-15-2005; Ord. No. 1693, § 5(18.18.040), 2-20-2007; Ord. No. 1709, § 3(18.18.040), 7-16-2007; Ord. No. 1761, exh. B(18.18.040), 7-6-2009) Sec. 38.10.050. Yards. A. Minimum yards required for the B-1 and B-2 districts are: 1. Buildings: a. Front yard: seven feet, except along arterials where minimum is 25 feet. b. Rear yard: ten feet. c. Side yards: five feet (except zero lot lines as allowed by section 18.38.060, BMC38.21.060). 2. Parking and loading areas: a. Front yard: 25 feet. b. Rear yard; ten feet.1 c. Side yards: eight feet.1 1Side and rear yards for parking may be allowed to be zero feet when coordinated parking arrangements between adjacent properties is provided. 3. The purpose of differentiated yard setback requirements is to encourage the placement and development of buildings in a manner to address the street and adjacent pedestrian activity and encourage a vigorous and diverse streetscape. 4. All vehicle entrances into garages shall be no closer than 20 feet to a property line, unless explicitly authorized otherwise under this chaptertitle. 5. Rear and side yards adjacent to alleys shall be at least five feet. B. Minimum yards required for the B-3 district are: 1. No minimum yards prescribed for the B-3 district except a seven-foot front yard shall be required on Mendenhall and Babcock Streets. 2. Where at least 50 percent of a block (from cross-street to cross-street) in the B-3 district is presently used for residential purposes the minimum yards established in subsection 18.18.050.A of this section shall be required. 3. Rear and side yards adjacent to alleys shall be at least five feet. C. All yards shall be subject to the provisions of sections 18.30.06038.16.060, §18.38.06038.20.060, §18.42.10038.22.100, §18.44.10038.23.100, and §18.48.100 BMC38.25.100, when applicable. (Ord. No. 1645, § 18.18.050, 8-15-2005; Ord. No. 1693, § 5(18.18.050), 2-20-2007; Ord. No. 1709, § 3(18.18.050), 7-16-2007; Ord. No. 1761, exh. B(18.18.050), 7-6-2009) Sec. 38.10.060. Building height. A. Maximum building height for each commercial district shall be as follows: 1. In the B-1 district: a. Roof pitch less than 3:12: 34 feet. b. Roof pitch 3:12 or greater: 38 feet. 2. In the B-2 district: PROOFS Page 531 of 977 a. Roof pitch less than 3:12: 38 feet. b. Roof pitch 3:12 or greater: 44 feet. c. Maximum height allowed by subsections 2.a and b of this section may be increased by up to a maximum of 50 percent when the B-2 zoning district is implementing a regional commercial and services growth policy land use designation. d. Maximum height otherwise cumulatively allowed by this section may be increased by 30 percent through the approval of a conditional use permit, but only when the additional height is a specifically identified purpose of the review. 3. In the B-3 district: a. In the B-3 district core area: 55 feet. b. In the B-3 district outside of the core area: 70 feet. 4. In all districts, all commercial floor space provided on the ground floor of a building shall have a minimum floor-to-ceiling height of 12 feet. (Ord. No. 1645, § 18.18.060, 8-15-2005; Ord. No. 1693, § 5(18.18.060), 2-20-2007; Ord. No. 1709, § 3(18.18.060), 7-16-2007; Ord. No. 1761, exh. B(18.18.060), 7-6-2009) CHAPTER 18.19. URBAN MIXED-USE ZONING DISTRICT ARTICLE 11. URBAN MIXED-USE ZONING DISTRICT Sec. 38.11.010. Intent and purpose of urban mixed-use zoning district. A. The intent and purposes of the urban mixed-use ("UMU") district is to establish areas within Bozemanthe city that are mixed-use in character, and to set forth certain minimum standards for development within those areas which encourage vertical mixed-use development with high density. The purpose in having an urban mixed-use district is to provide options for a variety of employment, retail and community service opportunities within the community, with incorporated opportunity for some residential uses, while providing predictability to landowners and residents in uses and standards. There is a rebuttable presumption that the uses set forth for each district will be compatible both within the individual districts and to adjoining zoning districts when the standards of Title 18this chapter are met and any applicable conditions of approval have been satisfied. Additional requirements for development apply within overlay districts. 1. It is the further the intent of this district to: a. Allow a mixture of complementary land uses which encourages mixed uses on individual floors including, but not limited to, retail, offices, commercial services, restaurants, bars, hotels, recreation and civic uses, and housing, to create economic and social vitality and to encourage the linking of trips; b. Foster the development of vertically oriented mixed uses, in contrast to single use development distributed along high vehicle capacity roadways; c. Encourage development that exhibits the physical design characteristics of vibrant, urban, pedestrian-oriented, storefront-style shopping streets with pedestrian amenities; d. Develop commercial and mixed-use areas that are safe, comfortable, and attractive to pedestrians; PROOFS Page 532 of 977 e. Provide flexibility in the siting and design of new developments and redevelopment to anticipate changes in the marketplace; f. Reinforce the principle of streets as public places that encourage pedestrian and bicycle travel, and on-street parking; g. Provide roadway and pedestrian connections to residential areas; h. Provide transitions between high-traffic streets and adjacent residential neighborhoods; i. Encourage efficient land use by facilitating compact, high-density, multi story development and minimizing the amount of land that is needed for surface parking; j. Facilitate development (land use mix, density and design) that supports public transit, where applicable; k. Provide appropriate locations and design standards for automobile and truck- dependent uses; l. Maintain mobility along traffic corridors while supporting the creation of "places" or centers which will create lasting and enduring, long-term value to the community; m. Emphasize the need to serve the adjacent, local neighborhood and also the greater Bozemancity area as well; n. Minimize parking lots through shared uses of mixed uses; o. Create central urban gathering places such as community squares or plazas; p. Facilitate designs of each mixed use to help ensure long-term financial viability of each mixed use; q. Allow for urban oriented recreational activities consistent with the standards and intent of the district; and r. To encourage and support the use of sustainable building practices. 2. To accomplish the intent of the district, the UMU district should ideally be located at the intersections of major traffic corridors, that is at the intersections of two arterials, or less frequently, an arterial and a collector street. The major intersections should have or be planned to have a stop light or other active traffic control. While placement at major intersections is a necessary precondition, not all major intersections should have the UMU district adjacent to them. Additionally, placement of this district should be adjacent or near to dense residential development to enhance walking and bicycle use. (Ord. No. 1681, § 2(18.19.010), 6-4-2007; Ord. No. 1709, § 4(18.19.010), 7-16-2007) Sec. 38.11.020. Authorized uses. A. Uses in the urban mixed-use district are depicted in Table 19-1 38.11.020. Principal uses are indicated with a "P," conditional uses are indicated with a "C," accessory uses are indicated with an "A," and uses which are not permitted authorized within the district are indicated by a "-." A particular proposed development or use may fall under more than one listed category with different review processes. In such cases, the more stringent review process shall apply. B. The uses listed are deliberately broad and some are given special definitions in chapter18.80, BMCarticle 42 of this chapter. The intent of this method is to provide general PROOFS Page 533 of 977 guidance for uses while allowing the unique needs and circumstances of each proposal to be specifically addressed through the review process. Some uses are the subject of special regulations contained in chapter18.40, BMCarticle 22 of this chapter. C. Additional uses for telecommunications are established in chapter18.54, BMCarticle 29 of this chapter. D. Mixed uses required and limited. 1. Development shall include a mix of uses. 2. Uses shall be grouped as commercial, industrial, offices, institutional, and residential. A combination of at least two different groups of uses shall be provided within each site plan. 3. No use group shall exceed 70 percent of the total gross building floor area in the entire site development. Multiple buildings may be shown on a single site plan as allowed in chapter 18.34article 19 of this chapter. 4. The ground level gross building area shall be at least 75 percent nonresidential in use. 5. Residential uses shall be provided in all mixed-use developments, and shall occupy not less than 20 percent of the total gross building floor area of the district. 6. For the purposes of calculating the percentage of a use within the site development the gross square foot floor area of building for each use shall be utilized. Table 110-1 38.11.020 Table of Commercial Uses Authorized Uses Ambulance service P Apartments and apartment buildings1 (as defined in this chaptertitle) P Arts and entertainment center (as defined in this chaptertitle) P Assisted living/elderly care facilities P Automobile fuel sales or repair (as defined in this chaptertitle) C Automobile parking lot or garage (public or private) P Automobile washing establishment C Banks and other financial institutions P Business, technical or vocational school P Bus terminals C Community centers P Convenience uses C Convenience use restaurant P Essential services (Type II) C Extended-stay lodgings P Health and exercise establishments P PROOFS Page 534 of 977 Hospitals P Hotel or motel P Laboratories, research and diagnostic P Laundry, dry cleaning P Light goods repair (as defined in this chaptertitle) P Lodginghouses P Manufacturing (light and completely indoors) P Mortuary C Museum P Medical and dental clinics P Meeting hall P Offices (as defined in this chaptertitle) P Other buildings & structures (typically accessory to permitted uses) A Parking facilities P Personal and convenience services (as defined in this chaptertitle) P Pet grooming shop P Printing offices and publishing establishments C Private club, fraternity, sorority or lodge P Public buildings P Refuse and recycling containers A Research laboratories P Restaurants P Retail uses (as defined in this chaptertitle) P* Retail (large scale) C Sales of alcohol for on-premises consumption (no gaming allowed) C Sign paint shops (not including neon sign fabrication) C Upholstery shops (excluding on-site upholstery service for cars, boats, trailers, trucks and other motorized vehicles requiring overnight storage) P Veterinary clinic P Wholesale distributors with on-premises retail outlets (providing warehousing is limited to commodities which are sold on the premises) P Wholesale establishments (ones that use samples, but do not stock on premises) P Any use, except adult businesses and casinos approved as part of a planned unit development subject to the provisions of chapter 18.36, BMCarticle 20 of this chapter C Notes:*Excluding adult business, and large scale retail, as they are defined in chapter18.80, BMCarticle 42 of this chapter -- PROOFS Page 535 of 977 1May be subject to the provisions of chapter 10, article 17.02, BMC8. (Ord. No. 1681, § 2(18.19.020), 6-4-2007; Ord. No. 1709, § 4(18.19.020), 7-16-2007) Sec. 38.11.030. Lot coverage and floor area. A. In the UMU district, the entire lot, exclusive of the required yards and parking, may be occupied by the principal and accessory buildings. This chaptertitle provides opportunities for parking requirements to be met by shared and off-site parking, as allowed by chapter18.46, BMCarticle 25 of this chapter. B. In the UMU district, the footprint of individual buildings shall not exceed 45,000 square feet. C. Minimum floor area requirements for each dwelling in all districts shall be that area required by the city's adopted International Building Code. D. All development shall provide a minimum floor area ratio of not less than 0.75. "Floor area ratio" is the ratio attained by dividing the gross square feet of building by gross land area of the lot being developed. A site plan for development may show future phases of buildings to be used to demonstrate compliance with the minimum floor area ratio standard. (Ord. No. 1681, § 2(18.19.030), 6-4-2007; Ord. No. 1709, § 4(18.19.030), 7-16-2007) Sec. 38.11.040. Lot area and width. A. All newly created lots shall have a minimum area adequate to provide for required yards and parking. In the UMU district there is no minimum size for newly created lots. B. There is no minimum width for newly created lots within the UMU district. (Ord. No. 1681, § 2(18.19.040), 6-4-2007; Ord. No. 1709, § 4(18.19.040), 7-16-2007) Sec. 38.11.050. Yards. A. Minimum yards. No minimum yards are required for the mixed-use district. Easements for utilities or other special standards may require buildings to be placed back from lot lines. B. Maximum setback. Buildings shall be oriented to the adjacent street. At least 50 percent of the total building frontage, which is oriented to the street, shall be placed within ten feet of any minimum required separation from the property line. C. Special yard requirements. All yards shall be subject to the provisions of sections 18.30.06038.17.060, Design Criteria and Development Standards in Entryway Corridors, § 18.38.06038.21.060, Yard and Height Encroachments, Limitations and Exceptions, § 18.42.10038.23.100, Watercourse Setback, § 18.44.10038.24.100, Street Vision Triangle, and § 18.48.10038.26.100, General Maintenance, when applicable. (Ord. No. 1681, § 2(18.19.050), 6-4-2007; Ord. No. 1709, § 4(18.19.050), 7-16-2007) Sec. 38.11.060. Building height. A. Minimum building height is three stories and 32 feet. To comply with this standard the space being claimed as a story must be capable of being occupied for human use and have a floor area of not less than 50 percent of the ground level story. B. Maximum building height, except as allowed under § 18.19.060.subsection C, BMC of this section for the UMU district shall be 55 feet. C. Maximum building height may be increased by up to but not more than an additional 25 feet when structured parking is provided per § 18.19.070section 38.11.070.E.2, BMC and when determined to be in compliance with the review criteria of section 18.34.090, PROOFS Page 536 of 977 BMC38.19.090. (Ord. No. 1681, § 2(18.19.060), 6-4-2007; Ord. No. 1709, § 4(18.19.060), 7-16-2007) Sec. 38.11.070. Special standards. A. A UMU district is anticipated to generally be not less than 20 acres in area. The city commission may approve a lesser area of not less than ten acres upon finding that a smaller area will still provide for adequate transition between adjacent districts, provide a reasonable community setting for the intensity of the district, and that a smaller area will not constitute spot zoning. B. The district shall be surrounded by perimeter streets unless precluded by topography. C. All development within the urban mixed-use district, regardless of location within the city, shall conform to chapters 1 through 4 of the design objectives plan established in chapter18.30article 17 of this chapter. In the event of a conflict between the design objectives plan and the standards of this chapter, the standards of this chapter shall govern. D. Landscaping requirements shall be the same as the portion of the B-3 district outside the defined core area as shown in section 18.48.06038.26.060, Table 25-1 38.26.060-1, BMC. E. Special parking standards. 1. Maximum surface parking. a. In order to achieve the intent of the district and achieve efficiency in the use of land, surface parking provided for the sole use of an individual development shall not exceed 100 percent of the minimum parking requirement for the subject land use based upon the requirements of chapter18.46, BMCarticle 25 of this chapter. The UMU district may utilize the parking reductions authorized in section 18.46.04038.25.040.2.c.1, BMC. In determining the 100 percent requirement all qualifying reductions shall be included. b. Exemptions to § 18.19.070section 38.11.070.E.1.a, BMC to allow unstructured surface parking up to 100 percent of the minimum parking requirement exclusive of reductions may be approved through the development review process for developments that provide shared parking to other development, valet parking spaces, parking for off-site users for which an hourly or other regular rent is paid, or similarly managed parking facilities. 2. Structured parking incentive. A floor area bonus of one square foot may be granted for each square foot of area of parking provided within a building. Additional height of building is allowed to accommodate this additional building area per § 18.19.060section 38.11.060, BMC. 3. Bicycle parking. Covered bicycle parking shall be provided. The covered spaces shall be at least one-half of the total minimum bicycle parking. The minimum number of covered spaces shall be the greater of either ten bicycle parking spaces or five percent of motor vehicle parking provided on-site. F. Building standards. 1. Transitions. Where the UMU district is adjacent to another zoning district, those buildings greater than three stories and located within 50 feet of another zoning PROOFS Page 537 of 977 district, not including width of streets, shall have a stepped facade on the side facing the other district. The portion of the facade in excess of three stories shall be stepped back not less than 25 percent of the height of the initial three stories. Where applicable, cornices (e.g., building tops or first-story cornices) shall be aligned to generally match the height of those on adjacent buildings. 2. Floor-to-floor heights and floor area of ground-floor space. a. All commercial floor space provided on the ground floor of a mixed-use building shall have a minimum floor-to-ceiling height of 12 feet. b. All commercial floor space provided on the ground floor of a mixed-use building shall contain the following minimum floor area: (1) At least 800 square feet or 25 percent of the lot area (whichever is greater) on lots with street frontage of less than 50 feet; or (2) At least 20 percent of the lot area on lots with 50 feet of street frontage or more. 3. In the UMU district buildings shall provide transparency along at least 50 percent of the linear length of the building's facade. This may be achieved with windows, displays, building lobbies, building entrances, display windows, or windows affording views into retail, office, or lobby spaces. This requirement shall apply to both frontages of a building located on a corner lot. a. The bottom edge of any window or product display window used to satisfy the transparency standard of this subsection F.3. may not be more than four feet above the adjacent sidewalk. b. Product display windows used to satisfy these requirements shall have a minimum height of four feet and be internally lighted. 4. Street-level openings on parking structures shall be limited to those necessary for retail store entrances, vehicle entrance and exit lanes, and pedestrian entrances to stairs and elevator lobbies. Parking structures adjacent to streets shall have architectural detailing such as, but not limited to, standard size masonry units such as brick, divided openings to give the appearance of windows, and other techniques to provide an interesting and human-scaled appearance on the story adjacent to the sidewalk. Parking areas may not be used to meet the frontage requirement of section 18.19.05038.11.050.B, BMC. 5. Buildings shall be articulated with modules, architectural detailing, individual floors visually expressed in the facade, and rhythm and pattern of openings and surfaces to be human-scale. G. Lighting. All building entrances, pathways, and other pedestrian areas shall be lit with pedestrian-scale lighting (e.g., wall mounted, sidewalk lamps, bollards, landscaping lighting, et cetera). Alternative lighting meeting the intent of the design guidelines and other criteria of this chaptertitle, may be approved through site development review. H. Natural surveillance. The proposed site layout, building, and landscape design shall promote natural surveillance of the area by employees, visitors, and residents. Physical features and activities should be oriented and designed in ways that maximize the ability to see throughout the site. For example, window placement, the use of front porches or stoops, use of low or see- through walls, and appropriate use of landscaping and lighting can promote natural surveillance. Sight-obscuring shrubs and walls should be avoided, except as necessary for buffering between commercial uses and lower density residential districts, and then shall be minimized. PROOFS Page 538 of 977 I. Public spaces. The UMU district is urban in nature. Public parks and recreational areas are likewise expected to be urban in nature. This will include elements such as plazas or other hardscaping hardscapes, landscaping with planters, furniture, developed recreation facilities such as basketball and tennis courts or indoor recreation facilities, and be more concentrated in size and development than anticipated in a less urban setting. Public spaces shall be designed to facilitate at least three distinct types of activities to encourage consistent human presence and activity. The requirements of this section shall give direction in the development of park plans and the application of the standards of chapterarticle 18.50, BMC27 of this chapter. 1. Public spaces shall be designed to: a. Facilitate social interaction between and within groups; b. Provide safe, pleasant, clean and convenient sitting spaces adaptable to changing weather conditions; c. Be attractive to multiple age groups; d. Provide for multiple types of activities without conflicting; e. Support organized activities; f. Be visually distinctive and interesting; g. Interconnect with other public and private spaces; and h. Prioritize use by persons. (Ord. No. 1681, § 2(18.19.070), 6-4-2007; Ord. No. 1709, § 4(18.19.070), 7-16-2007) CHAPTER 18.20. INDUSTRIAL ZONING DISTRICTS ARTICLE 12. INDUSTRIAL ZONING DISTRICTS Sec. 38.12.010. Intent and purpose of industrial zoning districts. A. The intent and purpose of the industrial zoning districts is to establish areas within Bozemanthe city that are primarily industrial in character and to set forth certain minimum standards for development within those areas. The purpose in having more than one industrial district is to provide opportunities for a variety of employment and community service functions within the community while providing predictability. There is a rebuttable presumption that the uses set forth for each district will be compatible with each other when the standards of this chaptertitle are met and any applicable conditions of approval have been satisfied. Additional requirements for development apply within overlay districts. 1. The intent of the M-1 light manufacturing district is to provide for the community's needs for wholesale trade, storage and warehousing, trucking and transportation terminals, light manufacturing and similar activities. The district should be oriented to major transportation facilities yet arranged to minimize adverse effects on residential development, therefore, some type of screening may be necessary. 2. The intent of the M-2 manufacturing and industrial district is to provide for heavy manufacturing and industrial uses, servicing vocational and employment needs of Bozemancity residents. 3. The intent of the B-P business park district is to provide for high quality settings and facilities for the development of a variety of compatible employment opportunities. These areas should be developed so as to recognize the impact on surrounding or adjacent development and contribute to the overall image of the community. Compatibility with adjacent land uses and zoning is required. PROOFS Page 539 of 977 (Ord. No. 1645, § 18.20.010, 8-15-2005; Ord. No. 1693, § 6(18.20.010), 2-20-2007; Ord. No. 1709, § 5(18.20.010), 7-16-2007; Ord. No. 1761, exh. C(18.20.010), 7-6-2009) Sec. 38.12.020. Authorized uses. A. Uses in the various industrial districts are depicted in Table 38.12.020. Principal uses are indicated with a "P," conditional uses are indicated with a "C," accessory uses are indicated with an "A," and uses which are not permitted authorized within the district are indicated by a "-." A particular proposed development may fall under more than one listed category with different review processes. In such cases, the more stringent review process shall apply. B. The uses listed are deliberately broad and are defined in chapter18.80, BMCarticle 42 of this chapter. The intent of this method is to provide general guidance for uses while allowing the unique needs and circumstances of each proposal to be specifically addressed through the review process. Some uses are the subject of special regulations contained in chapter18.40, BMCarticle 22 of this chapter. C. Additional telecommunication uses are established in chapter18.54, BMCarticle 29 of this chapter. Table 11-1 38.12.020 Table of Industrial Uses Permitted Uses Industrial Uses BP M-1 M-2 Adult business1 - P1 P1 Agriculture - - P Ambulance service - P P Amusement and recreational facilities - P C Animal shelters - C C Automobile, boat or recreational vehicle sales, service and/or rental - P P Automobile fuel sale or repair, as defined in this chaptertitle - P P Automobile parking lot or garage (public or private) P/A2 P/A2 P/A2 Automobile washing establishment - P P Banks and other financial institutions C P C Building materials -- P P Community center, as defined in this chaptertitle P P P Day care center C/A3 C/A3 C/A3 Food processing facility - P P Essential services (Type I) P P P Essential services (Type II) P P P Fences A A A Health and exercise establishments C P P PROOFS Page 540 of 977 Hospitals P - - Hotel or motel - P P Junk salvage or automobile reduction/salvage yards - - C Laboratories, research and diagnostic P P P Light goods repair, as defined in this chaptertitle - P P Manufacturing, light P4 P4 P Manufacturing or industrial uses of all types if in compliance with all provisions of this chaptertitle unless otherwise stated in this section. - - P Medical clinics P P P Offices, as defined in this chaptertitle P5 P P Other buildings and structures typically accessory to permitted uses A A A Outside storage -/A6 P/A6 P/A6 Personal and convenience services, as defined in this chaptertitle - C C Personnel service facilities providing services, education, food and convenience goods primarily for those personnel employed in the principal use A A A Production manufacturing and generation facilities (electric and gas) - - C Public buildings P P P Retail sales of goods produced or warehoused on site and related products, not to exceed 20 percent of gross floor area or 10,000 square feet, whichever is less A A A Residential use which is clearly accessory to the operation of a permitted principal or conditional use7, 11 - A7, 11 A7, 11 Restaurant8 - P8 P8 Restaurants serving alcoholic beverages9 - C9 C9 Refuse and recycling containers A A A Retail establishments other than principal uses listed in this section - C C Signs10 A A A Solid waste transfer station - - C Temporary buildings and yards incidental to on-going construction work A A A Truck, bus and rail terminal facilities - P P Truck repair, washing, and fueling facilities - C P Technology research establishments P P P Trade schools - P P PROOFS Page 541 of 977 Veterinary clinics P P P Warehousing - P P Warehousing, residential storage (mini warehousing) - P P Any use, except casinos and retail, large scale, approved as part of a planned unit development subject to the provisions of chapter 18.36, BMCarticle 20 of this chapter C C C 1Subject to the requirements of section 18.40, BMCarticle 22 of this chapter. 2As required by this chaptertitle and meeting the standards of this chaptertitle. 3If primarily offering services to a single business or group of businesses within the same building or building complex. 4Completely enclosed within a building. 5Professional and business offices only. 6Only if accessory to a principal use and if screened from the street and surrounding properties by a solid fence or dense plantings at least six feet in height. 7For the purposes of this section, accessory means less than 50 percent of gross floor area of a building, and being generally located on the second or subsequent floor. 8Occupying not more than 20 percent of the gross floor area of a building or 1,500 square feet, whichever is less, or occupying not more than 45 percent of the gross floor area of a food processing facility. 9Limited to state beer and wine licenses issued since 1997, prohibiting any form of gambling and occupying not more than 45 percent of the total building area of a food processing facility. 10Subject to the requirements of chapter 18.52, BMCarticle 28 of this chapter. 11May be subject to the provisions of chapter 10, article 17.02, BMC8. (Ord. No. 1645, § 18.20.020, 8-15-2005; Ord. No. 1693, § 6(18.20.020), 2-20-2007; Ord. No. 1709, § 5(18.20.020), 7-16-2007; Ord. No. 1761, exh. C(18.20.020), 7-6-2009; Ord. No. 1786, § 6, 7-26-2010) Sec. 38.12.030. Lot coverage and floor area. A. In the M-1 and M-2 districts, the entire lot, exclusive of required yards and parking, may be occupied by the principal and accessory buildings. This chaptertitle provides opportunities for parking requirements to be met by shared and off-site parking as allowed by chapter18.46, BMCarticle 25 of this chapter. B. In the B-P district, not more than 60 percent of the total lot area shall be occupied by impervious surfaces. The remaining 40 percent of the total lot area shall be landscaped as defined in this chaptertitle. C. Minimum floor area requirements for each dwelling in all districts shall be that area required by the city's adopted International Building Code. (Ord. No. 1645, § 18.20.030, 8-15-2005; Ord. No. 1693, § 6(18.20.030), 2-20-2007; Ord. No. 1709, § 5(18.20.030), 7-16-2007; Ord. No. 1761, exh. C(18.20.030), 7-6-2009) Sec. 38.12.040. Lot area and width. A. All newly created lots shall have a minimum area adequate to provide for required yards and parking but in no case shall they be less than: 1. In the M-1 district: 7,500 square feet. PROOFS Page 542 of 977 2. In the M-2 district: No minimum area. 3. In the B-P district: 43,560 square feet. B. Lot width for all newly created lots shall not be less than: 1. In the M-1 district: 75 feet. 2. In the M-2 district: 100 feet. 3. In the B-P district: 150 feet. C. When new lots are created utilizing the modular lotting provisions of section 18.42.030, BMC38.23.030, they shall be developed in combination adequate to meet the width and area requirements of this section. (Ord. No. 1645, § 18.20.040, 8-15-2005; Ord. No. 1693, § 6(18.20.040), 2-20-2007; Ord. No. 1709, § 5(18.20.040), 7-16-2007; Ord. No. 1761, exh. C(18.20.040), 7-6-2009) Sec. 38.12.050. Yards. A. Minimum yards required for the M-1 and M-2 districts are: 1. Structures (unless otherwise permitted by this chaptertitle): a. Front yard: 20 feet. b. Rear yard: three feet. c. Side yards: three feet (except zero lot lines as allowed by section 18.38.060, BMC38.21.060.B). 2. Parking and loading areas: a. Front yard: 20 feet. b. Rear yard: zero feet. c. Side yards: zero feet. 3. Rear and side yards adjacent to alleys shall be at least five feet. B. Minimum yards required for the B-P district are: 1. Front yard: 25 feet. 2. Rear yard; 20 feet. 3. Side yards: 15 feet (except zero lot lines as allowed by section §18.38.060, BMC38.21.060.B). 4. All yards fronting on public or private streets shall be a minimum of 25 feet. Front, rear and side yard requirements shall be increased three feet for each additional 5,000 square feet over a total gross footprint area of 25,000 square feet, up to maximum requirement of 40 feet for rear and side yards and 50 feet for front yards. 5. Rear and side yards adjacent to alleys shall be at least five feet. C. All yards shall be subject to the provisions of sections 18.30.06038.17.060, §18.38.06038.21.060, §18.42.10038.23.100, §18.44.10038.24.100, and §18.48.100 BMC38.26.100, when applicable. (Ord. No. 1645, § 18.20.050, 8-15-2005; Ord. No. 1693, § 6(18.20.050), 2-20-2007; Ord. No. 1709, § 5(18.20.050), 7-16-2007; Ord. No. 1761, exh. C(18.20.050), 7-6-2009) Sec. 38.12.060. Building height. A. Maximum building height for each industrial district shall be as follows: PROOFS Page 543 of 977 1. In the M-1 and M-2 districts: 45 feet. 2. In the B-P district: a. Roof pitch less than 3:12: 38 feet. b. Roof pitch 3:12 or greater: 44 feet. c. Maximum height otherwise allowed by subsections 2.a and b of this section may be increased by up to a maximum of 50 percent when the B-P zoning district is implementing a regional commercial and services growth policy land use designation. d. Maximum height otherwise cumulatively allowed by this section may be increased by 30 percent through the approval of a conditional use permit, but only when the additional height is a specifically identified purpose of the review. (Ord. No. 1645, § 18.20.060, 8-15-2005; Ord. No. 1693, § 6(18.20.060), 2-20-2007; Ord. No. 1709, § 5(18.20.060), 7-16-2007; Ord. No. 1761, exh. C(18.20.060), 7-6-2009) CHAPTER 18.22. PUBLIC LANDS AND INSTITUTIONS DISTRICT ARTICLE 13. PUBLIC LANDS AND INSTITUTIONS DISTRICT Sec. 38.13.010. Intent. The intent of the PLI public lands and institutions district is to provide for major public and quasi-public uses outside of other districts. Not all public and quasi-public uses need to be classified PLI. Some may fit within another district, however larger areas will be designated PLI. (Ord. No. 1645, § 18.22.010, 8-15-2005; Ord. No. 1693, § 7(18.22.010), 2-20-2007) Sec. 38.13.020. Applicability. To the maximum extent allowed by state law, all PLI development shall be subject to review and approval as provided for by this chaptertitle, based upon recommendations received from the applicable review bodies established by chapter18.62, BMCarticle 33 of this chapter as may be applicable, and shall be required to comply with all applicable underlying zoning requirements, as well as any requirements for certificates of appropriateness as established in design objective plans or other overlay district regulations or guidelines. (Ord. No. 1645, § 18.22.020, 8-15-2005; Ord. No. 1693, § 7(18.22.020), 2-20-2007) Sec. 38.13.030. Authorized uses. A. Authorized uses in the PLI district are as follows: 1. Principal uses. a. Ambulance service. b. Cemeteries. c. Essential services (Type I). d. Museums, zoos, historic and cultural facilities and exhibits. e. Other public buildings, e.g., fire and police stations and municipal buildings. f. Public and nonprofit, quasi-public institutions, e.g., universities, elementary, junior and senior high schools and hospitals. g. Publicly owned land used for parks, playgrounds and open space. PROOFS Page 544 of 977 h. Publicly owned community centers. 2. Conditional uses. a. Day care centers. b. Essential services (Type II). c. Solid waste landfill and transfer facilities. 3. Accessory uses. a. Other buildings and structures typically accessory to permitted uses. (Ord. No. 1645, § 18.22.030, 8-15-2005; Ord. No. 1693, § 7(18.22.030), 2-20-2007) Note--Additional uses for telecommunication facilities are provided for in chapter18.54, BMCarticle 29 of this chapter. Sec. 38.13.040. Lot area and width. The lot area and width requirement of the PLI district is as follows: no requirement. (Ord. No. 1645, § 18.22.040, 8-15-2005; Ord. No. 1693, § 7(18.22.040), 2-20-2007) Sec. 38.13.050. Lot coverage. In the PLI district, the entire lot, exclusive of required yards and parking, may be occupied by the principal and accessory buildings. (Ord. No. 1645, § 18.22.050, 8-15-2005; Ord. No. 1693, § 7(18.22.050), 2-20-2007) Sec. 38.13.060. Yards. In the PLI district, there is no yard requirement except when a lot is adjacent to another district. The yards then shall be the same as the adjacent district. The yard requirements of RS shall be interpreted as those of R1. (Note: All yards shall be subject to the provisions of sections 18.30.06038.17.060, § 18.38.06038.21.060, § 18.42.10038.23.100 and § 18.44.10038.24.100, BMC, when applicable.) (Ord. No. 1645, § 18.22.060, 8-15-2005; Ord. No. 1693, § 7(18.22.060), 2-20-2007) CHAPTER 18.24. NORTHEAST HISTORIC MIXED USE DISTRICT ARTICLE 14. NORTHEAST HISTORIC MIXED-USE DISTRICT Sec. 38.14.010. Intent and purpose. A. The intent of the northeast historic mixed-use district is to provide recognition of an area that has developed with a blend of uses not commonly seen under typical zoning requirements. The unique qualities and nature of the area are not found elsewhere in Bozemanthe city and should be preserved as a place offering additional opportunities for creative integration of land uses. The intent of this area is to allow private and case-by-case determination of the most appropriate use of land in a broad range of both nonresidential and residential uses. Standards for buffering between different land uses are deliberately not as high as standards elsewhere in the community as it is assumed that persons choosing to locate in this area are aware of the variety of possible adjacent land uses and have accepted such possibilities as both acceptable and desirable. It is expected that the lots within this district will continue to develop under a variety of uses which may increase or decrease in scope in any given portion of the district. B. The clear intent of this district is to support a mix and variety of nonresidential and residential uses. Nothing in this chapterarticle shall be interpreted to be discouraging or prejudicial to any listed use except as set forth as principal and conditional uses. PROOFS Page 545 of 977 (Ord. No. 1645, § 18.24.010, 8-15-2005; Ord. No. 1693, § 8(18.24.060), 2-20-2007; Ord. No. 1709, § 6(18.24.010), 7-16-2007) Sec. 38.14.020. Authorized uses. A. Authorized uses for the Northeast HMU district are as follows: (Note: Additional uses for telecommunication facilities are provided for in chapter18.54, BMCarticle 29 of this chapter) 1. Principal uses. a. Those principal uses allowed in the R-2 and M-1 districts. b. Restaurants, 1,500 square feet or less. 2. Conditional uses. a. Those conditional uses allowed in the R-2 and M-1 districts, except adult businesses and casinos. b. Any use, except adult businesses, casinos and large scale retail approved as part of a planned unit development subject to the provisions of chapter 18.36, BMCarticle 20 of this chapter. 3. Accessory uses. Those accessory uses allowed in R-2 and M-1 districts. (Ord. No. 1645, § 18.24.020, 8-15-2005; Ord. No. 1693, § 8(18.24.020), 2-20-2007; Ord. No. 1709, § 6(18.24.020), 7-16-2007) Sec. 38.14.030. Lot area and width. A. Lot area for the Northeast HMU district shall not be less than 5,000 square feet, except as allowed in subsection C of this section, and the lot area shall provide all required yard areas and off-street parking and loading. B. No lot width shall be less than 50 feet except lot width for townhomes and lots or dwellings satisfying the requirements of chapter 10, article 17.028, may be not less than 30 feet. C. Lot area per dwelling shall not be less than 5,000 square feet per detached single- household dwelling and 3,000 square feet per attached dwelling. Lot area per each dwelling used to satisfy the requirements of chapter 10, article 17.02, BMC8, shall not be less than 3,000 square feet per detached single-household dwelling and 2,500 square feet per attached dwelling. D. When new lots are created utilizing the modular lotting provisions of section 18.42.030, BMC38.23.030, they shall be developed in combination adequate to meet the width requirements of this section. (Ord. No. 1645, § 18.24.030, 8-15-2005; Ord. No. 1693, § 8(18.24.030), 2-20-2007; Ord. No. 1709, § 6(18.24.030), 7-16-2007; Ord. No. 1761, 7-6-2009) Sec. 38.14.040. Lot coverage and floor area. A. In the northeast HMU district, not more than: 1. Forty percent of the lot area shall be occupied by the principal and accessory buildings for principally residential uses; or 2. The entire lot, exclusive of required yards and parking, may be occupied by the principal and accessory buildings for principally nonresidential uses. B. All dwelling units shall meet the minimum floor area requirements of the city's adopted International Building Code. (Ord. No. 1645, § 18.24.040, 8-15-2005; Ord. No. 1693, § 8(18.24.040), 2-20-2007; Ord. No. 1709, § 6(18.24.040), 7-16-2007) PROOFS Page 546 of 977 Sec. 38.14.050. Yards. A. Every lot in the northeast HMU district shall have the following minimum yards: 1. Front yard: 20 feet. 2. Rear yard: three feet, for structures only. 3. Side yards: three feet, for structures only. B. Rear or side yards adjacent to alleys shall be at least five feet. C. All yards shall be subject to the provisions of sections 18.38.06038.21.060, § 18.42.10038.23.100 and § 18.44.100, BMC38.24.100, when applicable. (Ord. No. 1645, § 18.24.050, 8-15-2005; Ord. No. 1693, § 8(18.24.050), 2-20-2007; Ord. No. 1709, § 6(18.24.050), 7-16-2007) Sec. 38.14.060. Building height. Maximum building height in the northeast HMU district shall be 45 feet. (Ord. No. 1709, § 6(18.24.060), 7-16-2007; Ord. No. 1709, § 6(18.24.060), 7-16-2007) Sec. 38.14.070. Residential garages. A. For residential uses only, attached garages shall not obscure the entrance to the dwelling. Attached garages are encouraged to be clearly subordinate to the dwelling. A subordinate garage has one or more of the following characteristics: 1. The principal facade of the dwelling has been emphasized through the use of architectural features such as, but not limited to, porches, fenestration treatment, architectural details, height, orientation or gables, so that the non-garage portion of the residence is visually dominant; 2. The facade with the garage vehicle entrance is recessed at least four feet behind the facade of the dwelling containing the main entry; and/or 3. The area of the garage vehicle door comprises 20 percent or less of the total square footage, exclusive of any exposed roof areas, of the principal facade of the dwelling. B. Alternative means of addressing the intent of this section will be considered. Detached garages are encouraged. Vehicular garage access on nonprincipal facades and/or alleys is also encouraged. (Ord. No. 1645, § 18.24.070, 8-15-2005; Ord. No. 1693, § 8(18.24.070), 2-20-2007; Ord. No. 1709, § 6(18.24.070), 7-16-2007) Sec. 38.14.080. Special standards and requirements. A. The requirements for landscape buffering for residential adjacency required by chapter18.48, BMCarticle 26 of this chapter are not applicable in the northeast HMU. B. All necessary screening or other buffering that is determined to be necessary between adjoining uses shall be the responsibility of the use that is established last in time. C. When a lot is adjacent to or across the street from a residential zoning district, the yard requirements shall be the same as the adjoining zone and buildings shall be screened with either a decorative fence or plantings. The provisions of R-S shall be interpreted as those of R-1. (Ord. No. 1645, § 18.24.080, 8-15-2005; Ord. No. 1693, § 8(18.24.080), 2-20-2007; Ord. No. 1709, § 6(18.24.080), 7-16-2007) PROOFS Page 547 of 977 CHAPTER 18.26. REQUIREMENTS FOR CREATION OF A HISTORIC MIXED USE DISTRICT ARTICLE 15. REQUIREMENTS FOR CREATION OF A HISTORIC MIXED-USE DISTRICT Sec. 38.15.010. Description and purpose. Due to historical development patterns, certain areas of the city are characterized by a mixture of uses such as residential and commercial uses, or residential and industrial uses, which are normally segregated under standard zoning districts. In some instances, provisions for a continuation of a mixture of uses will serve both the public interest and allow a more equitable balancing of private interests than would the utilization of a standard zoning district. Because of the variety of circumstances which exist in different areas of the city, and the different treatment accorded those areas in the growth policy, it is not possible to establish a zoning district with uniform listing of uses and standards which is applicable to all such areas. Therefore, the historic mixed-use (HMU) district is intended to provide procedures and criteria for recognition of such areas and for the development of standards governing each application of the district to a particular area. It is further intended that the HMU district will be very selectively used and shall not be used as a mechanism to discourage development of any permitted use within the district. (Ord. No. 1645, § 18.26.010, 8-15-2005) Sec. 38.15.020. Criteria for establishment of the historic mixed-use district. A. Before any area is designated as a HMU district, the city commission shall make affirmative findings that: 1. The area to be classified as a HMU district includes the approximate equivalent of at least one standard city block of 300 feet by 300 feet, not held in single ownership unless developed over time while held in multiple ownership; 2. A special study of the area has been completed showing how the proposed historic mixed-use district would be integrated with the surrounding area consistent with the objectives of the growth policy and other applicable policies adopted by the city; 3. At least 50 percent of the lots to be classified as an historic mixed-use district are already developed with structures; 4. The existing development has occurred over a period of years and is characterized by a mixture of uses not permissible under a single zoning classification and includes a representative sampling of uses in the immediate area; 5. None of the standard zoning districts are capable of, or suitable for, promoting the objectives of the growth policy applicable to preexisting nonconforming uses; 6. The uses to be permitted within the HMU district will be compatible with one another and will provide a functional and healthful environment; and 7. The uses to be permitted and the development standards to be applied in the proposed district will promote the objectives of the growth policy and other applicable policies adopted by the city. (Ord. No. 1645, § 18.26.020, 8-15-2005) Sec. 38.15.030. Historic mixed-use district elements. A. Because the HMU district is designed to be applied to diverse situations, the specific mixture of uses permitted and the development standards required will have to be specified for each application of the district to a particular area. Therefore, the ordinance applying the HMU district to a specific area shall contain the following elements: 1. A description and purpose section setting forth the specific purposes the district is PROOFS Page 548 of 977 intended to accomplish in the particular situation; 2. A use section setting forth the activities or categories of activities to be permitted, or the performance standards to be used in evaluating specific activities. This section shall govern the uses within a particular HMU district; and 3. A standards section setting forth general development standards governing parking, lot coverage, setbacks, height limitations and other factors which are either different from or supplemental to the normal standards of this chaptertitle. B. Exemption. When an area has been classified as an HMU district, the general building and development standards set forth in this chaptertitle shall govern. However, if the special development standards set forth under § 18.26.030.subsection C of this section are more restrictive than the general development standards, the special development standards set forth under § 18.26.030.subsection C of this section shall prevail. (Ord. No. 1645, § 18.26.030, 8-15-2005) Sec. 38.15.040. Initiation, procedures and notice. Application for HMU district designation shall be administered under the provisions established in articles 18.6836 and 18.70, BMC37, Text Amendments and Zone Map Amendments, of this chapter. (Ord. No. 1645, § 18.26.040, 8-15-2005) CHAPTER 18.28. NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT ARTICLE 16. NEIGHBORHOOD CONSERVATION OVERLAY DISTRICT Sec. 38.16.010. Intent and purpose. A. All new construction, alterations to existing structures, movement of structures into or out of the neighborhood conservation overlay district, hereinafter referred to as the conservation district, or demolition of structures by any means or process will be subject to design review. The recommendations of the design review board or administrative design review staff shall be given careful consideration in the final action of the planning director or city commission. B. This chapterarticle defines and sets forth standards which apply to the conservation district. C. The intent and purpose of the conservation district designation is to stimulate the restoration and rehabilitation of structures, and all other elements contributing to the character and fabric of established residential neighborhoods and commercial or industrial areas. New construction will be invited and encouraged provided primary emphasis is given to the preservation of existing buildings and further provided the design of such new space enhances and contributes to the aesthetic character and function of the property and the surrounding neighborhood or area. Contemporary design will be encouraged, provided it is in keeping with the above-stated criteria, as an acknowledged fact of the continuing developmental pattern of a dynamic, changing community. The neighboring community shall be provided notice and opportunity to comment upon the proposed property improvements in accordance with Chapter18.76, BMCarticle 40 of this chapter. In addition, aggrieved persons shall have the right to appeal any design review decision made under the provisions of this chapterarticle, in accordance with Chapter18.66, BMCarticle 35 of this chapter. D. In view of the fact that most of the area included within the boundaries of the conservation district was developed and built out prior to the adoption of zoning and contemporary subdivision regulations, the construction, development pattern and range of uses is highly diverse and may not be in compliance with conventional regulatory requirements. This chapterarticle PROOFS Page 549 of 977 recognizes that this diversity is a major contributing element of the historic character of these neighborhoods or areas. The provisions of this chapterarticle shall be applied in a manner that will encourage the protection and enhancement of the many diverse features for future generations. E. The conservation district boundary is largely coterminous with the area surveyed in the effort that led to the listing of nine historic districts and 40 additional landmark structures in the National Register of Historic Places, and includes the nine designated historic districts and 40 individual landmarks. This chapterarticle sets forth the means of protecting and enhancing the conservation district. F. It is further the purpose of the conservation district designation to protect and enhance neighborhoods or areas of significant land planning or architectural character, historic landmarks or other built or natural features for the educational, cultural, economic benefit or enjoyment of Bozeman citizens of the city. It will be the policy and responsibility of the administrative entities of this chapterarticle to: 1. Protect, preserve, enhance and regulate structures, archaeological or cultural sites, and areas that: a. Are reminders of past eras, events or persons important in local, state or national history; b. Provide significant examples of land planning or architectural styles, or are landmarks in the history of land planning and architecture; c. Are unique or irreplaceable assets to the city and its neighborhoods; d. Provide examples of physical surroundings in which past generations lived; or e. Represent and express the unique characteristics of small agricultural-based, western city developmental patterns; 2. Enhance property values through the stabilization of neighborhoods and areas of the city, increase economic and financial benefits to the city and its inhabitants, and promote tourist trade and interests; 3. Develop and maintain the appropriate environment for buildings, structures, sites and areas, that reflect varied planning and architectural styles and distinguished phases of Bozemanthe city’s history and prehistory; 4. Stimulate an enhancement of human life by developing educational and cultural dimensions, which foster the knowledge of Bozemanthe city's heritage, and cultivate civic pride in the accomplishments of the past; 5. Seek to maintain and enhance the many private and public elements that are unique to the fabric, theme and character of each neighborhood and area, including, but not limited to, lighting, pathways, street trees, natural areas and other features that may, from time to time, be identified by the citizens and property owners of neighborhoods, areas and subsections thereof; and 6. Provide the neighboring community with notice and opportunity to comment upon the proposed property improvements in accordance with Chapter18.76, BMCarticle 40 of this chapter, with the exception of certain sketch plan applications with potentially little neighborhood impact, and to further provide aggrieved persons with the right to appeal review decisions made under the provisions of this chapterarticle, in accordance with Chapter18.66, BMCarticle 35 of this chapter. (Ord. No. 1645, § 18.28.010, 8-15-2005; Ord. No. 1693, § 9(18.28.010), 2-20-2007; Ord. No. 1709, § 7(18.28.010), 7-16-2007; Ord. No. 1761, exh. D(18.28.010), 7-6-2009) PROOFS Page 550 of 977 Sec. 38.16.020. Design review board and administrative design review staff powers and duties within conservation districts. A. It is intended that the design review board and administrative design review staff will review and make recommendations to the city commission or planning director regarding development within the neighborhood conservation district in order to maintain the underlying and desirable characteristics of structures and areas within such districts, while recognizing the need for innovation and individual expression in the development of these districts. B. In carrying out this mission, in addition to the duties established in chapter18.62, BMCarticle 33 of this chapter, the design review board and administrative design review staff shall have the duty to review any tax abatement or other incentive programs being considered by the city commission that are designed to stimulate preservation and rehabilitation of structures and properties, and to review any proposed action or development utilizing these abatement or incentive programs. (Ord. No. 1645, § 18.28.020, 8-15-2005; Ord. No. 1693, § 9(18.28.020), 2-20-2007; Ord. No. 1709, § 7(18.28.020), 7-16-2007; Ord. No. 1761, exh. D(18.28.020), 7-6-2009) Sec. 38.16.030. Conservation district designation or recision. A site, structure, object, area or district may be designated or rescinded as a landmark, or added to or removed from the conservation district by the city commission upon recommendation of the Historic Preservation Advisory Board subject to the provisions of chapterdivision 6 2.80, BMC, Historic Preservation Advisory Board of article 5, chapter 2, and 18.68articles 36 and 18.70, BMC37, Text Amendments and Zoning Map Amendments, of this chapter. Property owner concurrence is necessary for the designation or recision of landmark status. (Ord. No. 1645, § 18.28.030, 8-15-2005; Ord. No. 1693, § 9(18.28.030), 2-20-2007; Ord. No. 1709, § 7(18.28.030), 7-16-2007; Ord. No. 1761, exh. D(18.28.030), 7-6-2009) Sec. 38.16.040. Certificate of appropriateness. A. A certificate of appropriateness, received from either the planning director, or the city commission, or the board of adjustment, and314 after recommendation by the administrative design review staff or design review board, shall be required before any and all alteration other than repair as defined in chapter18.80article 42 of this chapter, are undertaken upon any structure in the conservation district. For alterations not requiring city commission approval, compliance with the planning director's decisions will be mandatory subject to appeal to the city commission as set forth in chapter18.66, BMCarticle 35 of this chapter. The Montanastate historical and architectural inventory form shall be reviewed and, if necessary, updated by the historic preservation staff to reflect current conditions on the site, prior to the review of the proposal. Application procedures are as follows: 1. No building, demolition, conditional use, sign or moving permit shall be issued within the conservation district until a certificate of appropriateness has been issued by the appropriate review authority, and until final action on the proposal has been taken. 2. Application, review and public notice procedures for proposals located within the conservation district are set forth in chapterarticles 18.34, BMC19, Review Procedures for Site Development, Chapter 8.62, BMC33, Development Review Committee, Design Review Board, Administrative Design Review and Wetlands Review Board and Chapter18.76, BMCarticle 40, Noticing, of this chapter. If the 314 Note changes requested by city staff. PROOFS Page 551 of 977 demolition or movement of structures or sites subject to the conservation district requirements is proposed, the procedures in section 18.28.080, BMC38.16.080 shall apply. 3. A denial of a certificate of appropriateness shall be accompanied by a written statement of reasons for the denial. 4. The architectural designs of individual workforce housing units used to satisfy the requirements of section 17.02.030, BMC10.08.020 and meeting the requirements of section 17.02.06010.08.070.1.m, BMC are exempt from the review requirements of this chapterarticle. This exemption does not extend to removal or alterations of existing structures. (Ord. No. 1645, § 18.28.040, 8-15-2005; Ord. No. 1693, § 9(18.28.040), 2-20-2007; Ord. No. 1709, § 7(18.28.040), 7-16-2007; Ord. No. 1761, exh. D(18.28.040), 7-6-2009) Sec. 38.16.050. Standards for certificates of appropriateness. 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 planning department). 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; 2. Proportions of doors and windows; 3. Relationship of building masses and spaces; 4. Roof shape; 5. Scale; 6. Directional expression, with regard to the dominant horizontal or vertical expression of surrounding structures; 7. Architectural details; 8. Concealment of nonperiod appurtenances, such as mechanical equipment; and 9. Materials and color schemes (any requirements or conditions imposed regarding color schemes shall be limited to the prevention of nuisances upon abutting properties and prevention of degradation of features on the property in question. Color schemes may be considered as primary design elements if a deviation from the underlying zoning is requested). 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 surrounding structures. D. When applying the standards of subsections A through C of this section, the review authority shall be guided by the design guidelines for the neighborhood conservation overlay district which are hereby incorporated by this reference. Application of the design guidelines may vary by property as explained in the introduction to the design guidelines. When reviewing a PROOFS Page 552 of 977 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. E. Conformance with other applicable development standards of this chaptertitle. F. Tax abatement certificate of appropriateness applications are also reviewed with the procedures and standards established in chapter 3.30, BMC chapter 2, article 6, division 2. (Ord. No. 1645, § 18.28.050, 8-15-2005; Ord. No. 1660, § 1, 2-6-2006; Ord. No. 1693, § 9(18.28.050), 2-20- 2007; Ord. No. 1709, § 7(18.28.050), 7-16-2007; Ord. No. 1761, exh. D(18.28.050), 7-6-2009) Sec. 38.16.060. Application requirements for certificates of appropriateness in conservation districts. Applications for certificates of appropriateness shall be made in conjunction with applications for site plan approval in accordance with Chapterarticle 18.34, BMC19 of this chaptertitle. Where development projects in the conservation district require only sketch plan review as per Chapterarticle 18.34, BMC19 of this chapter (i.e., single-household, two-household, three- household and four-household residential structures, each on individual lots; signs; fences; property alterations; and certain amendments to site plans), applications for certificates of appropriateness shall be made on a form provided by the planning department, and shall include the information and material as set forth in chapter 18.78, BMCarticle 41 of this chapter. (Ord. No. 1645, § 18.28.060, 8-15-2005; Ord. No. 1693, § 9(18.28.060), 2-20-2007; Ord. No. 1709, § 7(18.28.060), 7-16-2007; Ord. No. 1761, exh. D(18.28.060), 7-6-2009) Sec. 38.16.070. Deviations from underlying zoning requirements. A. Because the development of much of historic Bozeman preceded zoning, subdivision and construction regulations, many buildings within the conservation district do not conform to contemporary zoning standards. In order to encourage restoration and rehabilitation activity that would contribute to the overall historic character of the community, deviations from underlying zoning requirements may be granted by the city commission after considering the recommendations of the design review board or administrative design review staff. The criteria for granting deviations from the underlying zoning requirements are: 1. Modifications shall be more historically appropriate for the building and site in question and the adjacent properties, as determined by the standards in section 18.28.05038.16.050, than would be achieved under a literal enforcement of this chaptertitle; 2. Modifications will have minimal adverse effect on abutting properties or the permitted authorized uses thereof; and 3. Modifications shall ensure the protection of the public health, safety and general welfare. Approvals may be conditioned to ensure such protection, and such conditions may include a time period within which alterations will be completed; landscaping and maintenance thereof; architectural, site plan and landscape design modifications; or any other conditions in conformity with the intent and purpose set forth in this chapterarticle. (Ord. No. 1645, § 18.28.070, 8-15-2005; Ord. No. 1693, § 9(18.28.070), 2-20-2007; Ord. No. 1709, § 7(18.28.070), 7-16-2007; Ord. No. 1761, exh. D(18.28.070), 7-6-2009) Sec. 38.16.080. Demolition or movement of structures or sites within the conservation district. A. The demolition or movement of any structure or site within the conservation district shall be subject to the provisions of this chapterarticle and section. The review procedures and PROOFS Page 553 of 977 criteria for the demolition or movement of any structure or site within the conservation district are as follows: 1. Applications for the demolition or movement of structures within the conservation district will not be accepted without a complete submittal for the subsequent development or treatment of the site after the demolition or movement has occurred. The subsequent development or treatment must be approved before a demolition or moving permit may be issued. 2. The demolition or movement of conservation district principal and accessory structures or sites, which are designated as intrusive or neutral elements by the Montanastate historical and architectural inventory, and are not within recognized historic districts or in other ways listed on the National Register of Historic Places, shall be subject to approval by the planning director after review and recommendation of administrative design review staff or design review board as per Chapterarticles 18.3419 and 18.62, BMC33 of this chapter, and the standards outlined in section 18.28.050, BMC38.16.050. The Montanastate historical and architectural inventory form shall be reviewed and, if necessary, updated by the historic preservation staff to reflect current conditions on the site, prior to the review of the demolition or movement proposal. The final approval authority for the demolition or movement of structures or sites described within this section shall rest with the city commission when proposed in conjunction with a deviation, variance, conditional use permit or planned unit development application. 3. The demolition or movement of conservation district principal and accessory structures or sites, which are designated as contributing elements by the Montanastate historical and architectural inventory, and all properties within historic districts and all landmarks, shall be subject to approval by the city commission, through a public hearing. Notice of the public hearing before the city commission shall be provided in accordance with Chapter18.76, BMCarticle 40 of this chapter. Prior to holding the public hearing, the city commission shall receive a recommendation from administrative design review staff and the design review board. The Montanastate historical and architectural inventory form shall be reviewed and, if necessary, updated by the historic preservation staff to reflect current conditions on the site, prior to the review of the demolition or movement proposal. The final approval authority for the demolition or movement of structures or sites described within this section shall rest with the city commission. The city commission shall base its decision on the following: a. The standards in section 18.28.050, BMC38.16.050 and the architectural, social, cultural and historical importance of the structure or site and their relationship to the district as determined by the state historic preservation office and the planning department. b. If the commission finds that the criteria of this section are not satisfied, then, before approving an application to demolish or remove, the commission must find that at least one of the following factors apply based on definitive evidence supplied by the applicant, including structural analysis and cost estimates indicating the costs of repair and/or rehabilitation versus the costs of demolition and redevelopment: (1) The structure or site is a threat to public health or safety, and that no reasonable repairs or alterations will remove such threat; any costs associated with the removal of health or safety threats must exceed the value of the structure. PROOFS Page 554 of 977 (2) The structure or site has no viable economic or useful life remaining. 4. If an application for demolition or moving is denied, issuance of a demolition or moving permit shall be stayed for a period of two years from the date of the final decision in order to allow the applicant and city to explore alternatives to the demolition or move, including, but not limited to, the use of tax credits or adaptive reuse. The two-year stay may be terminated at any point in time if an alternate proposal is approved or if sufficient additional evidence is presented to otherwise satisfy the requirements of subsection 2 or 3 of this section. 5. All structures or sites approved for demolition or moving shall be fully documented in a manner acceptable to the historic preservation planner and administrative design review staff prior to the issuance of demolition or moving permits. 6. In addition to the remedies in chapter18.64, BMCarticle 34 of this chapter, the owner of any structure or site that is demolished or moved contrary to the provisions of this section, and any contractor performing such work, may be required to reconstruct such structure or site in a design and manner identical to its condition prior to such illegal demolition or move, and in conformance with all applicable codes and regulations. (Ord. No. 1645, § 18.28.080, 8-15-2005; Ord. No. 1693, § 9(18.28.080), 2-20-2007; Ord. No. 1709, § 7(18.28.080), 7-16-2007; Ord. No. 1761, exh. D(18.28.080), 7-6-2009) Sec. 38.16.090. Appeals. Aggrieved persons, as defined in chapter18.80, BMCarticle 42 of this chapter, may appeal the decision of the planning director, board of adjustment, or city commission pursuant to the provisions of chapter18.66, BMCarticle 35 of this chapter, and title 76, ch. 2, part 3, Montana Code Annotated (MCA 76-2-301 et seq.)315. In such event, the issuance of a certificate shall be stayed until the appeal process has been satisfied. (Ord. No. 1645, § 18.28.090, 8-15-2005; Ord. No. 1693, § 9(18.28.090), 2-20-2007; Ord. No. 1709, § 7(18.28.090), 7-16-2007; Ord. No. 1761, exh. D(18.28.090), 7-6-2009) CHAPTER 18.30. BOZEMAN ENTRYWAY CORRIDOR OVERLAY DISTRICT ARTICLE 17. BOZEMAN ENTRYWAY CORRIDOR OVERLAY DISTRICT Sec. 38.17.010. Title. These regulations shall be known as the Bozemancity entryway corridor overlay district regulations and may be cited as the entryway corridor regulations. (Ord. No. 1645, § 18.30.010, 8-15-2005; Ord. No. 1709, § 8(18.30.010), 7-16-2007; Ord. No. 1769, exh. F(18.30.010), 12-28-2009) Sec. 38.17.020. Intent and purpose. A. There are several arterial corridors entering Bozemanthe city that introduce visitors and residents alike to Bozemanthe city. The visual attributes of these roadways provide a lasting impression of the character of Bozemanthe city. It is the intent and purpose of this chapterarticle to ensure that the quality of development along these corridors will enhance the impression and enjoyment of the community both by guiding development and change that occurs after the adoption date of the ordinance codified infrom which this chaptertitle is derived, and by stimulating and assisting, in conjunction with other provisions of this chaptertitle, improvements 315 Note changes requested by city staff. PROOFS Page 555 of 977 in signage, landscaping, access and other contributing elements of entry corridor appearance and function. B. It is the intent of this chapterarticle to establish design criteria, standards and review procedures that will allow the city and its advisory boards and agencies to review and direct, in a fair and equitable manner, the development and redevelopment of future and existing properties and facilities within the entry corridors. The recommendations of the design review board or administrative design review staff shall be given careful consideration in the final action of the planning director, board of adjustment,316 or the city commission. (Ord. No. 1645, § 18.30.020, 8-15-2005; Ord. No. 1709, § 8(18.30.020), 7-16-2007; Ord. No. 1769, exh. F(18.30.020), 12-28-2009) Sec. 38.17.030. Application of entryway corridor provisions. A. Entryway corridors shall be designated on the city's official zoning map. The provisions of this chapterarticle shall be applied in addition to any other applicable regulations of this chaptertitle. Specifically, these provisions shall be applied to all developments within such corridors as follows: 1. Class I. All development wholly or partially within 660 feet of the centerline of the following roadways: a. Interstate 90, within or adjacent to the Bozeman city boundaries, measured from the centerline of the outside lanes of the opposing roadways and from the centerline of the access ramps; b. Interstate 90 frontage roads, within the Bozeman city boundaries, whether or not they are designated frontage roads; c. U.S. 10, from the Interstate 90/North Seventh Avenue interchange west to the Bozeman city boundaries; d. U.S. 191, west from Ferguson Road to the Bozeman city boundaries; e. Nineteenth Avenue, north from Durston Road to the North 19th Avenue/Interstate 90 interchange, exclusive of the east side between Durston Road and the south boundary of Covered Wagon Mobile Home Park; and f. Oak Street, west from North Seventh Avenue to North Nineteenth Avenue. 2. Class II. All development wholly or partially within the lesser of one city block or 330 feet of the centerline of the following roadways, with the exception of residentially zoned lots (no exception for R-O district) that have no frontage upon said roadways: a. Seventh Avenue, south from the Interstate 90 interchange to Main Street; b. Nineteenth Avenue, south from Durston Road to the Bozeman city boundary, and the east side of Nineteenth Avenue, between the south boundary of Covered Wagon Mobile Home Park and Durston Road; c. Main Street, cast from Broadway to Interstate 90; d. Main Street, west from Seventh Avenue to Ferguson Road; e. Rouse Avenue and State Primary 86 (Bridger Canyon Road) from Tamarack north and cast to the Bozeman city boundary; 316 Note change requested by city staff. PROOFS Page 556 of 977 f. Oak Street, west from Nineteenth Avenue to the east edge of Rose Park; and g. Oak Street, east from Seventh Avenue to Rouse Avenue. (Ord. No. 1645, § 18.30.030, 8-15-2005; Ord. No. 1709, § 8(18.30.030), 7-16-2007; Ord. No. 1769, exh. F(18.30.030), 12-28-2009) Sec. 38.17.040. Design review board and administrative design review staff powers and duties within entryway corridors. The design review board and administrative design review staff shall have the duties and powers established by chapter18.62, BMCarticle 33 of this chapter, within entryway corridors. (Ord. No. 1645, § 18.30.040, 8-15-2005; Ord. No. 1709, § 8(18.30.040), 7-16-2007; Ord. No. 1769, exh. F(18.30.040), 12-28-2009) Sec. 38.17.050. Certificate of appropriateness. A. A certificate of appropriateness, received from either the planning director or the city commission the reviewing authority after recommendation by the administrative design review staff or design review board, shall be required before any and all alterations other than repair as defined in chapter18.80, BMCarticle 42 of this chapter, are undertaken upon any structure in the entryway corridor. For alterations not requiring city commission approval, compliance with the planning director's decisions will be mandatory subject to appeal to the city commission as set forth in chapter18.66, BMCarticle 35 of this chapter. Application procedures are as follows: 1. No building, demolition, sign, conditional use permit or moving permit shall be issued within an entryway corridor until a certificate of appropriateness has been issued by the appropriate review authority and until final action on the proposal has been taken. 2. Application, review and public notice procedures for proposals located within entryway corridors are set forth in chapterarticles 18.34, BMC19, Review Procedures for Site Development; Chapter18.62, BMC33, Development Review Committee, Design Review Board, Administrative Design Review Staff and Wetlands Review Board; and Chapter18.76, BMC40, Noticing, of this chapter. 3. A denial of a certificate shall be accompanied by a written statement of reasons for the denial. (Ord. No. 1645, § 18.30.050, 8-15-2005; Ord. No. 1709, § 8(18.30.050), 7-16-2007; Ord. No. 1769, exh. F(18.30.050), 12-28-2009) Sec. 38.17.060. Design criteria and development standards in entryway corridors. A. In addition to the standards of chapterarticle 18.3419 of this chapter, the following general design criteria and development standards shall apply to all development occurring within the areas described in section 18.30.030, BMC38.17.030, above: 1. The proposed development shall also comply with all applicable design standards and guidelines, including the design objectives plan for entryway corridors. 2. Setback, parking, building and landscape standards. a. The setback from any entryway corridor roadway right-of-way shall be landscaped, including the screening or buffering of parking areas, through the use of berms, depressed parking, native landscape materials surrounding and within parking areas, or other means in order to preserve the area's natural views. b. In addition to the qualitative design standards and guidelines in the design PROOFS Page 557 of 977 objectives plan for entryway corridors, parking areas and buildings shall: (1) Be set back at least 50 feet from any Class I entryway corridor roadway right-of-way; or (2) Be set back at least 25 feet from any Class II entryway corridor roadway right-of-way. (Ord. No. 1645, § 18.30.060, 8-15-2005; Ord. No. 1709, § 8(18.30.060), 7-16-2007; Ord. No. 1769, exh. F(18.30.060), 12-28-2009) Sec. 38.17.070. Application requirements for certificates of appropriateness in entryway corridor. A. Applications for certificates of appropriateness shall be made in conjunction with applications for site plan approval, in accordance with Chapterarticle 18.34, BMC19 of this chapter. B. Where development projects in the entryway corridor require only sketch plan review as per Chapterarticle 18.34, BMC19 of this chapter (e.g., single-household, two-household, three-household and four-household residential structures, each on individual lots; signs; fences; property alterations; and certain amendments to site plans), applications for certificates of appropriateness shall be made in conjunction with an application for sketch plan review on a form provided by the planning department, and shall include the information and material as set forth in chapter18.78, BMCarticle 41 of this chapter. C. The architectural designs of individual workforce housing units used to satisfy the requirements of section 17.02.030, BMC10.08.020 and meeting the requirements of section 17.02.06010.08.070.1.m, BMC are exempt from the review requirements of this chapterarticle. This exemption does not extend to removal or alterations of existing structures. (Ord. No. 1645, § 18.30.070, 8-15-2005; Ord. No. 1709, § 8(18.30.070), 7-16-2007; Ord. No. 1769, exh. F(18.30.070), 12-28-2009) Sec. 38.17.080. Deviation from overlay or underlying zoning requirements. A. To accomplish the intent and purpose of this chapterarticle it may be necessary to deviate from the strict application of the overlay or underlying zoning requirements. Deviations from the underlying zoning requirements may be granted by the city commission after considering the recommendations of the design review board or administrative design review staff. B. The application for deviation shall be subject to the submittal and procedural requirements of chapterarticles 18.3419 and 18.78, BMC41 of this chapter. The application shall be accompanied by written and graphic material sufficient to illustrate the initial and final conditions that the modified standards will produce. The city commission or board of adjustment shall make a determination that the deviation will produce an environment, landscape quality and character superior to that produced by the existing standards, and which will be consistent with the intent and purpose of this chapterarticle, and with the adopted design objectives plan for the particular entryway corridor. Upon such a finding, the city commission or board of adjustment may authorize deviations of up to 20 percent beyond or below minimum or maximum standards respectively, as established in the underlying zoning district regulations. If the city commission or board of adjustment317 does not find that the proposed modified standards create an environment, landscape quality and character superior to that produced by the existing standards, and which will be consistent with the intent and purpose of this chapterarticle, and with the adopted design objectives plan for the particular entryway corridor, no deviation shall be granted. 317 Note changes requested by city staff. PROOFS Page 558 of 977 (Ord. No. 1645, § 18.30.080, 8-15-2005; Ord. No. 1709, § 8(18.30.080), 7-16-2007; Ord. No. 1769, exh. F(18.30.080), 12-28-2009) Sec. 38.17.090. Appeals. Aggrieved persons, as defined in chapter18.80, BMCarticle 42 of this chapter, may appeal the decision of the planning director, board of adjustment318 or city commission pursuant to the provision of chapter18.66, BMCarticle 35 of this chapter. In such event, the issuance of a certificate shall be stayed until the appeal process has been completed. (Ord. No. 1645, § 18.30.090, 8-15-2005; Ord. No. 1709, § 8(18.30.090), 7-16-2007; Ord. No. 1769, exh. F(18.30.090), 12-28-2009) CHAPTER 18.32. CASINO OVERLAY DISTRICT ARTICLE 18. CASINO OVERLAY DISTRICT Sec. 38.18.010. Intent. The intent of the casino overlay district is to provide suitable locations for casinos, as defined in this chaptertitle, based on review for impacts to neighboring uses and to minimize adverse effects on the community in the best interests of the public health, safety and general welfare. (Ord. No. 1645, § 18.32.010, 8-15-2005) Sec. 38.18.020. Application for zoning designation. Any person wishing to establish a casino must make application as per article 18.70, BMC37 of this chapter, Zoning Map Amendments, for a casino overlay district. (Ord. No. 1645, § 18.32.020, 8-15-2005) Sec. 38.18.030. Authorized uses. A. Authorized uses in the casino overlay district are as follows: 1. Principal uses. a. All principal uses permitted in the M-1 district if the underlying zoning is M- 1. b. All principal uses permitted in the M-2 district if the underlying zoning is M- 2. 2. Conditional uses. a. Casinos. b. All conditional uses permitted in the M-1 district if the underlying zoning is M-1. c. All conditional uses permitted in the M-2 district if the underlying zoning is M-2. 3. Accessory uses. a. All accessory uses permitted in the M-1 district if the underlying zoning is M- 1. b. All accessory uses permitted in the M-2 district if the underlying zoning is M- 2. 318 Note change requested by city staff. PROOFS Page 559 of 977 (Ord. No. 1645, § 18.32.030, 8-15-2005) Sec. 38.18.040. Restrictions. A. Casino overlay districts shall be permissible zoning only in areas zoned M-1 light manufacturing district, or M-2 manufacturing and industrial district. B. Casino overlay districts shall not be located within an entryway corridor overlay district except for the Interstate 90 entryway overlay corridor. Casino overlay districts shall not be located in areas where the Interstate 90 entryway corridor overlaps other entryway corridor overlay districts. C. Casino overlay district lots shall not be located within 600 feet, in any direction, of lots used for schools, churches, residences, public parks or other casinos. D. Sale for on-premises consumption of beer, wine and liquor is permissible only for casino and restaurant establishments. E. Casinos granted approval for sales for on-premises consumption of alcohol may not also sell automotive fuels. (Ord. No. 1645, § 18.32.040, 8-15-2005) Sec. 38.18.050. Lot area and width. There shall be no minimum lot area, however no lot width shall be less than 100 feet and the lot area shall be sufficient to provide all required yard areas and off-street parking. (Ord. No. 1645, § 18.32.050, 8-15-2005) Sec. 38.18.060. Lot coverage. The entire lot, exclusive of required yards, landscaping and parking may be occupied by the principal and accessory buildings. (Ord. No. 1645, § 18.32.060, 8-15-2005) Sec. 38.18.070. Yards. A. Every lot within a casino overlay district shall have the following minimum yards: 1. Front yard: 25 feet. 2. Rear yard: ten feet. 3. Side yards: eight feet each side. (Note: All yards shall be subject to the provisions of sections 18.30.06038.16.060, § 18.42.10038.22.100 and § 18.44.10038.23.100, BMC, when applicable.) (Ord. No. 1645, § 18.32.070, 8-15-2005) Sec. 38.18.080. Building height. A. Maximum building height in a casino overlay district shall be: 1. Roof pitches of less than 3:12: 32 feet. 2. Roof pitches of 3:12 or greater: 38 feet. (Ord. No. 1645, § 18.32.080, 8-15-2005) CHAPTER 18.34. SITE PLAN REVIEW ARTICLE 19. SITE PLAN REVIEW* *State law reference—Property development review, MCA 7-21-1001 et seq. PROOFS Page 560 of 977 Sec. 38.19.010. Introduction. A. All non-subdivision development proposals within the city will be subject to plan review and approval. Depending on the complexity of development and status of proposed use in the applicable zoning district, either sketch plans, site plans or conditional use permits will be required as specified in this chapterarticle. B. Special development proposals (e.g., PUDs, CUPs, variances, etc.) require other information to be submitted in conjunction with sketch plans or site plans and are subject to requirements specific to the type of proposal. These additional submittal requirements and review procedures are outlined in section 18.34.030, BMC38.19.030. C. When a development is proposed within a neighborhood conservation or entryway corridor overlay district, or proposes signs which do not specifically conform to the requirements of this chaptertitle, design review is required in conjunction with either sketch plan or site plan review. In such cases, additional submittal requirements and review procedures apply as outlined in section 18.78.090, BMC38.41.090. D. Conditional uses. Certain uses, while generally not suitable in a particular zoning district, may, under certain circumstances, be acceptable. When such circumstances can be demonstrated by the applicant to exist, a conditional use permit may be granted by the board of adjustment or city commission319. Conditions may be applied to the issuance of the permit and periodic review may be required. No conditional use permit shall be granted for a use which is not specifically designated as a conditional use in this chaptertitle. E. Approval shall be granted for a particular use and not for a particular person or firm. F. This chapterarticle is provided to meet the purposes of section 18.02.040, BMC38.01.040 and all other relevant portions of this chaptertitle. G. Applications subject to this chapterarticle shall be reviewed under the authority established by chapter18.64, BMCarticle 34 of this chapter. (Ord. No. 1645, § 18.34.010, 8-15-2005; Ord. No. 1670, § 18.34.010, 8-28-2006; Ord. No. 1693, § 10(18.34.010), 2-20-2007; Ord. No. 1709, § 9(18.34.010), 7-16-2007; Ord. No. 1761, exh. E(18.34.010), 7-6- 2009) Sec. 38.19.020. Classification of site plans. A. All developments, as defined in chapter18.80article 42 of this chapter, within the city shall be subject to site plan review procedures and criteria of this chapterarticle and the applicable submittal requirements of chapter 18.78, BMCarticle 41 of this chapter. For the purposes of this chaptertitle, site plans will be classified as either a master site plan or a site plan. 1. Exception. Those developments specified in section 18.34.050, BMC38.19.050 and other development proposals when so specifically identified require only sketch plan review. B. A master site plan is a generalized development plan that establishes building envelopes and overall entitlements for complex, large-scale projects that will require multiple years to reach completion. Use of a master site plan is an option and not required. A master site plan involves one or more of the following: 1. 100 or more dwelling units in a multiple household structure or structures; 319 Note change requested by city staff. PROOFS Page 561 of 977 2. 50,000 or more square feet of office space, retail commercial space, service commercial space or industrial space; 3. Multiple buildings located on multiple contiguous lots and/or contiguous city blocks; 4. Multiple owners; 5. Development phasing projected to extend beyond two years; or 6. Parking for more than 200 vehicles. C. Any planned unit development shall be reviewed according to the regulations in chapter 18.36, BMCarticle 20 of this chapter, in addition to this chapterarticle. D. Telecommunication facilities shall be reviewed according to the regulations in chapter18.54, BMCarticle 29 of this chapter, in addition to this chapterarticle. E. Uses identified in chapter18.40, BMCarticle 22 of this chapter shall be reviewed according to the standards and regulations contained in chapter18.40, BMCarticle 22 of this chapter, in addition to this chapterarticle. (Ord. No. 1645, § 18.34.020, 8-15-2005; Ord. No. 1693, § 10(18.34.020), 2-20-2007; Ord. No. 1709, § 9(18.34.020), 7-16-2007; Ord. No. 1761, exh. E(18.34.020), 7-6-2009) Sec. 38.19.030. Special development proposals; additional application requirements, review procedures and review criteria. A. Application requirements. Applications for special development proposals (e.g., PUD, CUP, floodplain development permits, variances, etc.) shall include: 1. The required information for site plans described in section 18.78.080, BMC38.41.080; 2. Any additional application information required for specific reviews as listed in the following chapterarticles of this chaptertitle: a. §18.36Article 20, Planned Unit Development; b. §18.40Article 22, Standards for Specific Uses; c. §18.54Article 29, Telecommunications; d. §18.58Article 31, Bozemancity floodplain regulations; and e. §18.66Article 35, Appeals, Deviations and Variance Procedures; and f. § 18.78Article 41, Submittal Materials and Requirements.320 B. Review procedures and review criteria. Additional review procedures and review criteria for specific development proposals are defined in the following chapterarticles of this chaptertitle: 1. §18.34.100Section 38.19.100, conditional use procedure; 2. §18.36Article 20, Planned Unit Development; 3. §18.40Article 22, Standards for Specific Uses; 4. §18.54Article 29, Telecommunications; 5. §18.58Article 31, Bozemancity floodplain regulations; and 6. §18.66Article35, Appeals, Deviations and Variance Procedures. 320 Note change requested by city staff. PROOFS Page 562 of 977 (Ord. No. 1645, § 18.34.030, 8-15-2005; Ord. No. 1693, § 10(18.34.030), 2-20-2007; Ord. No. 1709, § 9(18.34.030), 7-16-2007; Ord. No. 1761, exh. E(18.34.030), 7-6-2009) Sec. 38.19.040. Review authority. A. The city commission, board of adjustment and planning director have the review authority established in section 18.64.010, BMC38.34.010 and this chapter. B. The development review committee, design review board, administrative design review staff, and wetlands review board have the review authority established in chapter 18.62, BMCarticle 33 of this chapter. C. Site plan design review thresholds. When a development is subject to design review and meets one or more of the following thresholds the design review board shall have responsibility for conducting the design review. 1. 20 or more dwelling units in a multiple household structure or structures; 2. 30,000 or more square feet of office space, retail commercial space, service commercial space or industrial space; 3. More than two buildings on one site for permitted office uses, permitted retail commercial uses, permitted service commercial uses, permitted industrial uses or permitted combinations of uses; 4. 20,000 or more square feet of exterior storage of materials or goods; or 5. Parking for more than 60 vehicles. (Ord. No. 1645, § 18.34.040, 8-15-2005; Ord. No. 1670, § 18.34.040, 8-28-2006; Ord. No. 1693, § 10(18.34.040), 2-20-2007; Ord. No. 1709, § 9(18.34.040), 7-16-2007; Ord. No. 1761, exh. E(18.34.040), 7-6- 2009) Sec. 38.19.050. Sketch plan review. A. Sketch plan submittal requirements. 1. Certain independent development proposals (i.e., not in conjunction with other development) are required to submit only sketch plans meeting the requirements of section 18.78.110, BMC38.41.110. 2. Separate construction plans are necessary for building permits when the proposal requires such permits. Additional information is also necessary when the proposal requires the issuance of a certificate of appropriateness (see §18.34.110sections 38.19.110 and §18.78.090, BMC38.41.090). 3. Examples of independent projects which qualify for sketch plan review are: individual single-household, two-household, three-household, and four-household residential units, each on individual lots and independent of other site development; accessory dwelling units in the R-2, R-3 and R-4 districts; manufactured homes on individual lots; fences; signs in compliance with the requirements of this chaptertitle; regulated activities in areas with regulated wetlands not in conjunction with a land development proposal; grading of sites disturbing more than one-eighth but less than one-half acre, or movement of more than 30 but less than 100 cubic yards of material, or cut or fill of less than one cumulative foot, whichever is less; special temporary uses; and accessory structures associated with these uses. Other similar projects may be determined by the planning director to require only sketch plan review. The planning director shall determine all submittal requirements. Projects which do not require sketch plan review may still require review and permitting for non-zoning issues. PROOFS Page 563 of 977 B. Sketch plan review procedures. 1. No certificate of appropriateness required. Sketch plans for projects which do not require a certificate of appropriateness shall be submitted to the planning department staff for a determination of compliance with the requirements of this chaptertitle. Once compliance is achieved, the application will be approved for construction or referred to the appropriate permitting authorities. 2. Certificate of appropriateness required. Sketch plans, including the material required by section 18.78.090, BMC38.41.090, and such additional information as may be required for projects which require a certificate of appropriateness as per §18.34.110, BMCsection 38.19.110 shall be submitted to the ADR staff, who shall review the proposal for compliance with this chaptertitle, including compliance with the applicable overlay district requirements. Once compliance is achieved, the application will be approved for construction or referred to the appropriate permitting authorities. Review and approval authority for sketch plans that require certificates of appropriateness shall rest with the DRB if the ADR staff consists of less than two members. C. Sketch plan review criteria. Sketch plans shall be reviewed for compliance with all applicable requirements of this chaptertitle including overlay district requirements and the cessation of any current violations of this chaptertitle, exclusive of any legal nonconforming conditions. Plan changes may be required. (Ord. No. 1645, § 18.34.050, 8-15-2005; Ord. No. 1693, § 10(18.34.050), 2-20-2007; Ord. No. 1709, § 9(18.34.050), 7-16-2007; Ord. No. 1761, exh. E(18.34.050), 7-6-2009) Sec. 38.19.060. Application of site plan review procedures. A. These procedures shall apply to all developments within the city except for development proposals specified as requiring only sketch plan review. B. The preliminary site plan shall be submitted and approved, and final site plan approval received, prior to the issuance of any building permit. C. No occupancy permits shall be issued for any development for which site plan review is required until certification has been provided demonstrating that all terms and conditions of site plan approval have been complied with. D. Unless a deviation or variance is explicitly sought and granted in association with a site plan, all standards of this chaptertitle apply whether explicitly mentioned in the record of the review or not. An omission or oversight of a nonconformity with the standards of this chaptertitle in the site plan shall not constitute approval of such nonconformance. Any nonconformance which was not the subject of an explicitly approved deviation or variance may be required to be cured at such time the city becomes aware of the nonconforming condition's existence. E. In the event that the volume of site development applications submitted for review exceeds the ability of the city to process them simultaneously, preference in order of scheduling will be given to those projects which provide the most affordable housing in excess of minimum requirements, as measured by the total number of affordable units. (Ord. No. 1645, § 18.34.060, 8-15-2005; Ord. No. 1693, § 10(18.34.060), 2-20-2007; Ord. No. 1709, § 9(18.34.060), 7-16-2007; Ord. No. 1761, exh. E(18.34.060), 7-6-2009) Sec. 38.19.070. Site plan review procedures. A. Acceptability and adequacy of application. 1. The planning department shall review the application for acceptability within five working days to determine if that the application is does not omit any of the PROOFS Page 564 of 977 submittal elements required by this chaptertitle. If the application does not contain all of the required elements, the application, review fee and a written explanation of what the application is missing shall be returned to the property owner or their representative. The five working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the five-day review period. 2. After the application is deemed to contain the required elements and to be acceptable, it shall be reviewed for adequacy. A determination of adequacy means the application contains all of the required elements in sufficient detail and accuracy to enable the applicable review agency to make a determination that the application either does or does not conform to the requirements of this chaptertitle and any other applicable regulations under the jurisdiction of the city of Bozeman. The review for adequacy shall be conducted by the appropriate agency with expertise in the subject matter. The adequacy review period shall begin on the next working day after the date that the planning department determines the application to contain all the required elements and shall be completed within not more than 15 working days. The 15 working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the property owner. Upon a determination of adequacy the review of the development will be scheduled. a. In the event the missing information is not received by the city within 15 working days of notification to the property owner of inadequacy, all application materials and one-half of the review fee shall be returned to the property owner or their representative. Subsequent resubmittal shall require payment of a review fee as if it were a new application. b. A determination that an application is adequate does not restrict the city from requesting additional information during the site plan review process. 3. Should the property owner choose not to provide the required information after an application has been found unacceptable, nor to accept return of the application and accompanying fee, the application may be processed by the city with the recognition by the property owner that unacceptability is an adequate basis for denial of the application regardless of other merit of the application. 4. The DRC may grant reasonable waivers from submittal of application materials required by these regulations where it is found that these regulations allow a waiver to be requested and granted. If in the opinion of the final approval authority the waived materials are necessary for proper review of the development, the materials shall be provided before review is completed. 5. In order to be granted a waiver the applicant shall include with the submission of the preliminary site plan a written statement describing the requested waiver and the reasons upon which the request is based. The final approval body shall then consider each waiver at the time the preliminary site plan is reviewed. All waivers must be identified not later than initial submittal of the preliminary site plan stage of review. B. Site plans shall be reviewed by the review bodies established by chapter18.62, BMCarticle 33 of this chapter and according to the procedures established by this chaptertitle. After review of the applicable submittal materials required by chapter18.78, BMCarticle 41 of this chapter and upon recommendation by the appropriate review bodies, the planning director, board PROOFS Page 565 of 977 of adjustment, or city commission shall act to approve, approve with conditions or deny the application, subject to the appeal provisions of chapter18.66, BMCarticle 35 of this chapter. The basis for the planning director's, board of adjustment's, or city commission's action shall be whether the application, including any required conditions, complies with all the applicable standards and requirements of this chaptertitle, including § 18.02.050section 38.01.050, BMC. 1. Site plan. The planning director shall provide an opportunity for the public to comment upon development proposals. The duration of the initial comment period shall be included in any notice required by chapter18.76, BMCarticle 40 of this chapter. The comment period shall be from the date of the first consideration of the complete preliminary plan and supplementary materials by the DRC until 5:00 pm on the third working day after DRC and other review bodies as may be appropriate have taken action regarding the proposal. a. The planning director, after receiving the recommendations of the DRC, ADR, DRB or WRB, shall act to approve, approve with conditions or deny an application within ten working days of the close of the public comment period. The planning director's decision shall be in writing and shall include any special conditions which are to be applied to the development. (1) After formal notice of a project review has been given, interested parties may request in writing to receive a copy of the director's decision regarding an application. Persons making such a request shall provide an addressed envelope for use in delivering their copy of the decision. 2. Site plan with deviations or variances and conditional use permits. The board of adjustment shall provide an opportunity for the public to comment upon a proposed site plan or conditional use permit. The ending date of the comment period shall be included in the notice required by chapter18.76, BMCarticle 40 of this chapter. The comment period shall be from the date of the first consideration of the complete preliminary plan and supplementary materials by the DRC until the decision by the board of adjustment. a. The board of adjustment, after receiving the recommendations of the DRC, ADR, DRB or WRB, shall act to approve, approve with conditions or deny an application. The board of adjustment's decision shall be in writing and shall include any special conditions which are to be applied to the development. 3. Master site plan. The city commission shall provide an opportunity for the public to comment upon a proposed master site plan. The duration of the comment period shall be included in any notice required by chapter18.76, BMCarticle 40 of this chapter. The comment period shall be from the date of the first consideration of the complete preliminary plan and supplementary materials by the DRC until the decision by the city commission. a. The city commission, after receiving the recommendations of the DRC, ADR, DRB or WRB, shall act to approve, approve with conditions or deny an application. The city commission's decision shall be in writing and shall include any special conditions which are to be applied to the development. (Ord. No. 1645, § 18.34.070, 8-15-2005; Ord. No. 1670, § 18.34.070, 8-28-2006; Ord. No. 1693, § 10(18.34.070), 2-20-2007; Ord. No. 1709, § 9(18.34.070), 7-16-2007; Ord. No. 1761, exh. E(18.34.070), 7-6- 2009) PROOFS Page 566 of 977 Sec. 38.19.080. Application for conditional use permit; notice requirements. A. The person applying for a conditional use permit shall fill out and submit to the planning director the appropriate form with the required fee. The request for a conditional use permit shall follow the procedures and application requirements of this chapterarticle. B. In consideration of all conditional use permit applications, a public hearing shall be conducted by the board of adjustment. Notice of the board of adjustment public hearing shall be provided in accordance with Chapter18.76,BMCarticle 40 of this chapter. C. If a rezoning is required prior to approval of a conditional use permit, the application for rezoning and the conditional use permit may be filed and acted upon simultaneously; however, the conditional use permit shall not be effective until zoning has been approved by the city commission. (Ord. No. 1645, § 18.34.080, 8-15-2005; Ord. No. 1670, § 18.34.080, 8-28-2006; Ord. No. 1693, § 10(18.34.080), 2-20-2007; Ord. No. 1709, § 9(18.34.080), 7-16-2007; Ord. No. 1761, exh. E(18.34.080), 7-6- 2009) Sec. 38.19.090. Site plan and master site plan review criteria. A. In considering applications for site plan approval under this chaptertitle, the planning director, board of adjustment, city commission, DRC, and when appropriate, the ADR staff, DRB or WRB shall consider the following: 1. Conformance to and consistency with the city's adopted growth policy; 2. Conformance to this chaptertitle, including the cessation of any current violations; 3. Conformance with all other applicable laws, ordinances and regulations; 4. Relationship of site plan elements to conditions both on and off the property, including: a. Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods and other approved development relative to architectural design, building mass and height, neighborhood identity, landscaping, historical character, orientation of buildings on the site and visual integration; b. Design and arrangement of the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) so that activities are integrated with the organizational scheme of the community, neighborhood, and other approved development and produce an efficient, functionally organized and cohesive development; c. Design and arrangement of elements of the site plan (e.g., buildings circulation, open space and landscaping, etc.) in harmony with the existing natural topography, natural water bodies and watercourses, existing vegetation, and to contribute to the overall aesthetic quality of the site configuration; and d. If the proposed project is located within a locally designated historical district, or includes a locally designated landmark structure, the project is in conformance with the provisions of chapter18.28, BMCarticle 16 of this chapter; 5. The impact of the proposal on the existing and anticipated traffic and parking conditions; 6. Pedestrian and vehicular ingress, egress and circulation, including: PROOFS Page 567 of 977 a. Design of the pedestrian and vehicular circulation systems to ensure that pedestrians and vehicles can move safely and easily both within the site and between properties and activities within the neighborhood area; b. Non-automotive transportation and circulation systems design features to enhance convenience and safety across parking lots and streets, including, but not limited to, paving patterns, grade differences, landscaping and lighting; c. Adequate connection and integration of the pedestrian and vehicular transportation systems to the systems in adjacent developments and general community; and d. Dedication of right-of-way or easements necessary for streets and similar transportation facilities; 7. Landscaping, including the enhancement of buildings, the appearance of vehicular use, open space and pedestrian areas, and the preservation or replacement of natural vegetation; 8. Open space, including: a. The enhancement of the natural environment; b. Precautions being taken to preserve existing wildlife habitats or natural wildlife feeding areas; c. If the development is adjacent to an existing or approved public park or public open space area, have provisions been made in the site plan to avoid interfering with public access to and use of that area; d. Is any provided recreational area suitably located and accessible to the residential units it is intended to serve and is adequate screening provided to ensure privacy and quiet for neighboring residential uses; e. Open space shall be provided in accordance with Chapterarticle 18.50, BMC27 of this chapter; f. Park land shall be provided in accordance with Chapterarticle 18.50, BMC27 of this chapter. 9. Building location and height; 10. Setbacks; 11. Lighting; 12. Provisions for utilities, including efficient public services and facilities; 13. Site surface drainage and stormwater control; 14. Loading and unloading areas; 15. Grading; 16. Signage; 17. Screening; 18. Overlay district provisions; 19. Other related matters, including relevant comment from affected parties; and 20. If the development includes multiple lots that are interdependent for circulation or other means of addressing requirements of this chaptertitle, whether the lots are PROOFS Page 568 of 977 either: a. Configured so that the sale of individual lots will not alter the approved configuration or use of the property or cause the development to become nonconforming; or b. The subject of reciprocal and perpetual easements or other agreements to which the city is a party so that the sale of individual lots will not cause one or more elements of the development to become nonconforming; 21. Compliance with Title 17 Chapter 2, BMC chapter 10, article 8. B. In considering applications for master site plan approval under this chaptertitle, the city commission, DRC, and when appropriate, the ADR staff, DRB or WRB shall consider the following: 1. Conformance to and consistency with the city's adopted growth policy; 2. Conformance to this chaptertitle, including the cessation of any current violations; 3. Conformance with all other applicable laws, ordinances and regulations; 4. A generalized site plan showing the orientation and relationships among key plan elements both on and off the property, including: a. Compatibility with, and sensitivity to, the immediate environment of the site and the adjacent neighborhoods in terms of overall site organization and building mass and height; b. Arrangement of the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) so that activities are integrated with the structure of the surrounding area and produce an efficient, functionally organized and visually cohesive development that contributes to the overall aesthetic quality of the area; c. If the proposed project is located within a locally designated historical district, or includes a locally designated landmark structure, a statement describing how the project is in conformance with the provisions of chapter 18.28, BMCarticle 16 of this chapter; and d. Description of many elements in a master site plan may be described in written and/or graphic formats whichever provides the superior form of communication; 5. A statement accompanying the site plan describing the generalized architectural character and its relationship to and compatibility with the historical character of the area, generalized landscape concept including treatment of public space and relationship to the surrounding area, and visual and aesthetic integration of the proposed development into the surrounding area and its effect on the identity of the adjacent neighborhood; 6. The impact of the proposed development on the existing and anticipated traffic and parking conditions, including identification of the traffic generation and parking needs of individual plan elements; 7. Pedestrian and vehicular ingress, egress and circulation, including: a. Overall pedestrian and vehicular circulation systems to ensure that pedestrians and vehicles can move safely and easily both within the site and between properties and activities within the neighborhood area; PROOFS Page 569 of 977 b. Non-automotive transportation and circulation systems design features to enhance convenience and safety across parking lots and streets; c. Adequate connection and integration of the pedestrian and vehicular transportation systems to the systems in adjacent developments and general community; and d. Dedication and/or abandonment of rights-of-way or easements necessary for efficient land use and accompanying streets and related transportation facilities; 8. Open space, if required under the zoning classification of the proposed development, including: a. Enhancement of the natural environment; b. Precautions being taken to preserve existing wildlife habitats or natural wildlife feeding areas; c. Provisions to avoid interfering with public access to and use of any adjacent parks and other open space; d. Provision of recreational areas suitably located and configured, and accessible to the residential units it is intended to serve; and e. Adequacy of open space as required within this chaptertitle; f. Open space shall be provided in accordance with Chapterarticle 18.50, BMC27 of this chapter; g. Park land shall be provided in accordance with Chapterarticle 18.50, BMC27 of this chapter; 9. Generalized building gross area (square feet), building locations, building envelopes, and building heights; 10. Setbacks; 11. Generalized lighting concept as pertains to public safety; 12. Generalized provisions for utilities, including efficient public services and facilities; 13. Generalized site surface drainage and stormwater control; 14. Generalized locations of loading and unloading areas; 15. Generalized grading; 16. Statement regarding proposed signage; 17. Statement regarding screening of trash, outdoor storage and utility areas; 18. Overlay district provisions where applicable; and 19. Other related matters, including relevant comment from affected parties. C. If the planning director, board of adjustment, or city commission, after recommendation from the DRC and, if appropriate, ADR staff, DRB and WRB shall determine that the proposed site plan or master site plan will not be detrimental to the health, safety or welfare of the community, is in compliance with the requirements of this chaptertitle and is in harmony with the purposes and intent of this chaptertitle and the Bozemancity growth policy, approval shall be granted, and such conditions and safeguards may be imposed as deemed necessary. Notice of action shall be given in writing. D. Site plan approval or master site plan approval may be denied upon a determination PROOFS Page 570 of 977 that the conditions required for approval do not exist. Persons objecting to the recommendations of review bodies carry the burden of proof. A denial of approval shall be in writing. E. Following approval of a master site plan, the applicant shall submit to the planning department, sequential individual site plans for specific areas within the master site plan. Each subsequent application for a site plan shall be consistent with the approved master site plan and subject to the review criteria set forth in subsection A of this section. Evidence that the review criteria have been met through the master site plan review process may be incorporated by reference in order to eliminate duplication of review. (Ord. No. 1645, § 18.34.090, 8-15-2005; Ord. No. 1670, § 18.34.090, 8-28-2006; Ord. No. 1693, § 10(18.34.090), 2-20-2007; Ord. No. 1709, § 9(18.34.090), 7-16-2007; Ord. No. 1761, exh. E(18.34.090), 7-6- 2009) Sec. 38.19.100. Board of adjustment consideration and record for conditional use permits. A. The board of adjustment, in approving a conditional use permit, shall review the application against the review requirements of section 18.34.090, BMC38.19.090. B. In addition to the review criteria of section 18.34.090, BMC38.19.090, the board of adjustment shall, in approving a conditional use permit, determine favorably as follows: 1. That the site for the proposed use is adequate in size and topography to accommodate such use, and all yards, spaces, walls and fences, parking, loading and landscaping are adequate to properly relate such use with the land and uses in the vicinity; 2. That the proposed use will have no material adverse effect upon the abutting property. Persons objecting to the recommendations of review bodies carry the burden of proof; 3. That any additional conditions stated in the approval are deemed necessary to protect the public health, safety and general welfare. Such conditions may include but are not limited to: a. Regulation of use; b. Special yards, spaces and buffers; c. Special fences, solid fences and walls; d. Surfacing of parking areas; e. Requiring street, service road or alley dedications and improvements or appropriate bonds; f. Regulation of points of vehicular ingress and egress; g. Regulation of signs; h. Requiring maintenance of the grounds; i. Regulation of noise, vibrations and odors; j. Regulation of hours for certain activities; k. Time period within which the proposed use shall be developed; l. Duration of use; m. Requiring the dedication of access rights; and n. Other such conditions as will make possible the development of the city in an orderly and efficient manner. PROOFS Page 571 of 977 C. The board of adjustment shall, in addition to all other conditions, impose the following general conditions upon every conditional use permit granted: 1. That the right to a use and occupancy permit shall be contingent upon the fulfillment of all general and special conditions imposed by the conditional use permit procedure; and 2. That all of the special conditions shall constitute restrictions running with the land use, shall apply and be adhered to by the owner of the land, successors or assigns, shall be binding upon the owner of the land, histhe owner’s successors or assigns, shall be consented to in writing, and shall be recorded as such with the county clerk and recorder's office by the property owner prior to the issuance of any building permits, final site plan approval or commencement of the conditional use. D. Applications for conditional use permits may be approved, conditionally approved or denied by motion of the board of adjustment. If an application is denied, the denial shall constitute a determination that the applicant has not shown that the conditions required for approval do exist. E. The applicant shall be notified in writing of the action taken by the board of adjustment within seven working days of its action. If the conditional use permit has been granted the notification shall include any conditions, automatic termination date, period of review or other requirements. If the conditional use permit has been granted, the permit shall be issued upon the signature of the planning director after completion of all conditions and final site plan. 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, BMC38.19.130. 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, BMC38.34.160. (Ord. No. 1645, § 18.34.100, 8-15-2005; Ord. No. 1670, § 18.34.100, 8-28-2006; Ord. No. 1693, § 10(18.34.100), 2-20-2007; Ord. No. 1709, § 9(18.34.100), 7-16-2007; Ord. No. 1761, exh. E(18.34.100), 7-6- 2009) PROOFS Page 572 of 977 Sec. 38.19.110. Certificates of appropriateness; additional review procedures and review criteria. A. Sign proposals which do not specifically conform to the requirements of this chaptertitle. Independent sign proposals (i.e., not in conjunction with other development) which do not specifically conform to the requirements of this chaptertitle, are required to submit full site plans. Additional site design information, in sufficient detail to demonstrate compliance with the design objective plan, encompassing the property's location shall be provided. If no design objectives plan has been prepared for the location, additional site design information, if necessary, shall be determined by the ADR staff. All signs shall comply with the dimensional standards of this chaptertitle unless a deviation or variance has been properly granted. B. Review procedures and criteria for certificates of appropriateness. 1. Certificates of appropriateness shall only be issued according to procedures and criteria specified in chapterarticles 18.2816, 18.3017, 18.3620 and 18.62, BMC33 of this chapter. 2. Sign proposals which specifically conform to the requirements of this chaptertitle shall be reviewed according to procedures and criteria outlined in chapter 18.52, BMCarticle 28 of this chapter. (Ord. No. 1645, § 18.34.110, 8-15-2005; Ord. No. 1693, § 10(18.34.110), 2-20-2007; Ord. No. 1761, exh. E(18.34.110), 7-6-2009) Sec. 38.19.120. Public notice requirements. Public notice of development proposals and approvals subject to this chapterarticle shall be provided as required by chapter18.76, BMCarticle 40 of this chapter. (Ord. No. 1645, § 18.34.120, 8-15-2005; Ord. No. 1693, § 10(18.34.120), 2-20-2007; Ord. No. 1709, § 9(18.34.120), 7-16-2007; Ord. No. 1761, exh. E(18.34.120), 7-6-2009) Sec. 38.19.130. Final site plan. A. No later than six months after the date of approval of a preliminary site plan or master site plan, the applicant shall submit to the planning department a final site plan with accompanying application form and review fee. The number of copies of the final site plan to be submitted shall be established by the planning director. The final site plan shall contain the materials required in sections §18.78.08038.41.080 and 18.78.090 BMC38.41.090 and whatever revisions to the preliminary site plan or master site plan are required to comply with any conditions of approval. Prior to the passage of six months, the applicant may seek an extension of not more than an additional six months from the planning director. B. In addition to the materials required in subsection A of this section, the owner shall submit a certification of completion and compliance stating that they understand any conditions of approval and the submitted final site plans or master site plan have complied with any conditions of approval or corrections to comply with code provisions. C. In addition to the materials required in subsections A and B of this section, the owner shall submit a statement of intent to construct according to the final site plan. Such statement shall acknowledge that construction not in compliance with the approved final site plan may result in delays of occupancy or costs to correct noncompliance. D. Following approval of a final site plan, the final site plan shall be in effect for one year. Prior to the passage of one year, the applicant may seek an extension of not more than one additional year from the planning director. In such instances, the planning director shall determine whether the relevant terms of this chaptertitle and circumstances have significantly changed since the initial approval. If relevant terms of this chaptertitle or circumstances have significantly changed, the extension of the approval shall not be granted. PROOFS Page 573 of 977 E. Following approval of a final master site plan, the final master site plan shall be in effect for not more than five years. Owners of property subject to the master site plan may seek appropriate extensions. Approval of an extension shall be made by the planning director. Approval shall be granted if the planning director determines that the relevant terms of this chaptertitle and circumstances have not significantly changed since the initial approval. F. Upon approval of the final site plan by the planning director the applicant may obtain a building permit as provided for by chapter18.64, BMCarticle 34 of this chapter. 1. Subsequent site plan approvals are required to implement a master site plan, and approval of a master site plan does not entitle an applicant to obtain any building permits. (Ord. No. 1645, § 18.34.130, 8-15-2005; Ord. No. 1693, § 10(18.34.130), 2-20-2007; Ord. No. 1709, § 9(18.34.130), 7-16-2007; Ord. No. 1761, exh. E(18.34.130), 7-6-2009) Sec. 38.19.140. Building permits based upon approved sketch or site plans. Based upon the approved sketch or final site plan (hereinafter referred to as "plan"), and after any appeals have been resolved, a building permit for the site may be requested and may be granted pursuant to Chapter18.64, BMCarticle 34 of this chapter. No building permit may be granted on the basis of an approved sketch or site plan whose approval has expired. (Ord. No. 1645, § 18.34.140, 8-15-2005; Ord. No. 1693, § 10(18.34.140), 2-20-2007; Ord. No. 1709, § 9(18.34.140), 7-16-2007; Ord. No. 1761, exh. E(18.34.140), 7-6-2009) Sec. 38.19.150. Amendments to sketch and site plans. A. It is the intent of this section to ensure that issues of community concern are addressed during the redevelopment, reuse or change in use of existing facilities in the community. Specific areas of community concern include public safety, mitigation of off-site environmental impacts and site character in relation to surroundings. The following procedures for amendments to approved plans, reuse of existing facilities and further development of sites ensure that these concerns are adequately and expeditiously addressed. B. Any amendment to or modification of a site plan or master site plan approved under the ordinance codified in this chapterarticle (September 3, 1991 - Ordinance No. 1332) shall be submitted to the planning director for review and possible approval. Proposals for further development, reuse or change in use of sites developed pursuant to this chaptertitle shall also be reviewed as an amendment to an approved plan. All amendments shall be shown on a revised plan drawing. Amendments to approved plans shall be reviewed and may be approved by the planning director upon determining that the amended plan is in substantial compliance with the originally approved plan. If it is determined that the amended plan is not in substantial compliance with the originally approved plan, the application shall be resubmitted as a new application and shall be subject to all standards and site plan review and approval provisions of this chaptertitle. Substantial compliance may be shown by demonstrating that the amendments do not exceed the thresholds established in section 18.34.17038.19.170.B, BMC. C. Modifications or amendments to a master site plan at the time an extension of approval is sought may be proposed by either the applicant or the city commission, and shall be based on substantive current information that indicates that relevant circumstances have changed and that such circumstances support the proposed modifications. Such circumstances may include market analyses, economic conditions, changes in surrounding land uses, changes in ownership, etc. (Ord. No. 1645, § 18.34.150, 8-15-2005; Ord. No. 1693, § 10(18.34.150), 2-20-2007; Ord. No. 1709, § 9(18.34.150), 7-16-2007; Ord. No. 1761, exh. E(18.34.150), 7-6-2009) PROOFS Page 574 of 977 Sec. 38.19.160. Modification or enlargement of structures authorized under a conditional use permit. Any proposed additions, enlargements or modifications of the structures approved in any conditional use permit, or any proposed extension of the use into areas not approved in any such permit, shall be subject to the review procedures of this chapterarticle. (Ord. No. 1645, § 18.34.160, 8-15-2005; Ord. No. 1693, § 10(18.34.160), 2-20-2007; Ord. No. 1709, § 9(18.34.160), 7-16-2007; Ord. No. 1761, exh. E(18.34.160), 7-6-2009) Sec. 38.19.170. Reuse, change in use or further development of sites developed prior to the adoption date of the ordinance from which this chaptertitle is derived. A. Sites legally developed prior to the adoption date of the ordinance codified infrom which this chaptertitle (September 3, 1991 - Ordinance 1332)is derived shall be considered to have developed under an approved plan. Proposals for reuse, change in use or the further development of sites legally developed prior to the adoption date of the ordinance codified infrom which this chaptertitle is derived may be approved by the planning director upon determining that no significant alteration of the previous use and site are proposed, and upon review by the city engineer or designee to ensure that adequate access and site surface drainage are provided. All such proposals shall be shown on a plan drawing as required by the planning director. B. The criteria for determining that no significant alteration of the previous use and site will result from the proposed reuse, change in use or further development of a site shall include but not be limited to the following: 1. The proposed use is allowed under the same zoning district use classification as the previous use, however replacement of nonconforming uses must comply with the provisions of chapter18.60, BMCarticle 32 of this chapter; 2. Changes proposed for the site, singly or cumulatively, do not increase lot coverage by buildings, storage areas, parking areas or impervious surfaces and/or do not result in an increase in intensity of use as measured by parking requirements, traffic generation or other measurable off-site impacts; a. By more than 20 percent for developments not meeting one or more of the criteria of section 18.34.040section 38.19.040.C; or b. By more than ten percent for developments meeting or exceeding one or more of the criteria of section 18.34.04038.19.040.C; 3. The proposed use does not continue any unsafe or hazardous conditions previously existing on the site or associated with the proposed use of the property. C. If it is determined that the proposed reuse, change in use or further development of a site contains significant alterations to the previous use and/or site, the application shall be resubmitted as a new application and shall be subject to all plan review and approval provisions of this chapterarticle. D. When proposals for reuse, change in use or further development of a site are located in the neighborhood conservation or entryway corridor overlay districts, review by ADR staff or the DRB may be required to determine whether resubmittal as a new application is necessary. (Ord. No. 1645, § 18.34.170, 8-15-2005; Ord. No. 1693, § 10(18.34.170), 2-20-2007; Ord. No. 1709, § 9(18.34.170), 7-16-2007; Ord. No. 1761, exh. E(18.34.170), 7-6-2009) Sec. 38.19.180. Improvements to existing developed sites independent of site plan review. The continued improvement of existing developed sites is desired to increase the level of compliance with the provisions of this chaptertitle. An applicant may propose improvements, not PROOFS Page 575 of 977 in association with a site plan review, to increase conformity with the standards of this chaptertitle for landscaping, lighting, parking or similar components of a site to occur over a defined period of time, not to exceed three years. Such improvements shall be depicted on a site plan drawn to scale and which shall be sufficiently detailed to clearly depict the current conditions, the intended end result of the proposed improvements and any phasing of work. Such improvements shall be reviewed by and approved at the discretion of the planning director. The planning director may require surety in accordance with the terms of chapter18.74, BMCarticle 39 of this chapter for work performed. (Ord. No. 1645, § 18.34.180, 8-15-2005; Ord. No. 1693, § 10(18.34.180), 2-20-2007; Ord. No. 1709, § 9(18.34.180), 7-16-2007; Ord. No. 1761, exh. E(18.34.180), 7-6-2009) Sec. 38.19.190. Special temporary use permit. A. Generally. Uses permitted subject to a special temporary use permit are those temporary uses which are required for the proper function of the community or are temporarily required in the process of establishing a permitted use, constructing a public facility or providing for response to an emergency. Such uses shall be so conducted that they will not be detrimental in any way to the surrounding properties or to the community. Uses permitted subject to a special temporary use permit may include: 1. Carnivals, circuses, special events of not over 72 consecutive hours; 2. Tent revival meetings; 3. Swap meets; or 4. Such other uses as the planning director may deem to be within the intent and purpose of this section. B. Application and filing fee. Application for a special temporary use permit may be made by a property owner or histhe owner’s authorized agent. A copy of the fees are is available at the planning department. Such application shall be filed with the planning director who shall charge and collect a filing fee for each such application, as provided in chapter18.64, BMCarticle 34 of this chapter. The planning director may also require any information deemed necessary to support the approval of a special temporary use permit, including site plans per this chapterarticle. C. Decision. Application for a special temporary use permit shall be reviewed by the planning director who shall approve, conditionally approve or disapprove such application. Approval or conditional approval shall be given only when in the judgment of the planning director such approval is within the intent and purposes of this chapterarticle. D. Conditions. In approving such a permit, the approval shall be made subject to a time limit and other conditions deemed necessary to ensure that there will be no adverse effect upon adjacent properties. Such conditions may include, but are not limited to, the following: 1. Regulation of parking; 2. Regulation of hours; 3. Regulation of noise; 4. Regulation of lights; 5. Requirement of bonds or other guarantees for cleanup or removal of structure or equipment; and/or 6. Such other conditions deemed necessary to carry out the intent and purpose of this section. PROOFS Page 576 of 977 (Ord. No. 1645, § 18.34.190, 8-15-2005; Ord. No. 1693, § 10(18.34.190), 2-20-2007; Ord. No. 1709, § 9(18.34.190), 7-16-2007; Ord. No. 1761, exh. E(18.34.190), 7-6-2009) Sec. 38.19.200. Appeals. Appeals of decisions rendered in conjunction with this chapterarticle may be taken as set forth in chapter18.66, BMCarticle 35 of this chapter. In such event, any plan review approval and associated right to proceed with development shall be stayed until the appeal process has been completed. (Ord. No. 1645, § 18.34.200, 8-15-2005; Ord. No. 1693, § 10(18.34.200), 2-20-2007; Ord. No. 1709, § 9(18.34.200), 7-16-2007; Ord. No. 1761, exh. E(18.34.200), 7-6-2009) Sec. 38.19.210. Improvements. Improvements depicted on an approved site plan shall be installed subject to the requirements of chapter18.74, BMCarticle 39 of this chapter. (Ord. No. 1645, § 18.34.210, 8-15-2005; Ord. No. 1693, § 10(18.34.210), 2-20-2007; Ord. No. 1709, § 9(18.34.210), 7-16-2007; Ord. No. 1761, exh. E(18.34.210), 7-6-2009) CHAPTER 18.36. PLANNED UNIT DEVELOPMENT ARTICLE 20. PLANNED UNIT DEVELOPMENT Sec. 38.20.010. Intent of planned unit development. A. It is the intent of the city through the use of the planned unit development (PUD) concept, to promote maximum flexibility and innovation in the development of land and the design of development projects within the city. Specifically, with regard to the improvement and protection of the public health, safety and general welfare, it shall be the intent of this chaptertitle to promote the city's pursuit of the following community objectives: 1. To ensure that future growth and development occurring within the city is in accord with the city's adopted growth policy, its specific elements, and its goals, objectives and policies; 2. To allow opportunities for innovations in land development and redevelopment so that greater opportunities for high quality housing, recreation, shopping and employment may extend to all citizens of the Bozemancity area; 3. To foster the safe, efficient and economic use of land and transportation and other public facilities; 4. To ensure adequate provision of public services such as water, sewer, electricity, open space and public parks; 5. To avoid inappropriate development of lands and to provide adequate drainage, water quality and reduction of flood damage; 6. To encourage patterns of development which decrease automobile travel and encourage trip consolidation, thereby reducing traffic congestion and degradation of the existing air quality; 7. To promote the use of bicycles and walking as effective modes of transportation; 8. To reduce energy consumption and demand; 9. To minimize adverse environmental impacts of development and to protect special features of the geography; 10. To improve the design, quality and character of new development; PROOFS Page 577 of 977 11. To encourage development of vacant properties within developed areas; 12. To protect existing neighborhoods from the harmful encroachment of incompatible developments; 13. To promote logical development patterns of residential, commercial, office and industrial uses that will mutually benefit the developer, the neighborhood and the community as a whole; 14. To promote the efficient use of land resources, full use of urban services, mixed uses, transportation options, and detailed and human-scale design; and 15. To meet the purposes established in section 18.02.040, BMC38.01.040. (Ord. No. 1645, § 18.36.010, 8-15-2005; Ord. No. 1693, § 11(18.36.010), 2-20-2007; Ord. No. 1709, § 10(18.36.010), 7-16-2007) Sec. 38.20.020. Application and uses of a planned unit development. A. A planned unit development may be applied to any subdivision, or to any development having one or more principal uses or structures on a single parcel of real property or contiguous parcels of real property. Land use patterns and uses shall generally conform to growth policy land use designations and underlying zoning districts. Approval for an additional use or combination of uses may be allowed in a planned unit development only when such additional uses are consistent with the Bozemancity growth policy and relevant criteria in subsection E of section 18.36.090, BMC38.20.090.E and are not prohibited elsewhere in this chaptertitle. B. All planned unit developments shall consist of a harmonious arrangement of lots, uses, buildings, parking areas, circulation and open spaces. All planned unit developments shall be designed as an integrated unit, in such a manner as to constitute a safe, efficient and convenient development. C. Any planned unit development shall be considered as a conditional use within the zoning district in which it is to be located. D. The city commission retains final approval authority for planned unit developments. E. All planned unit developments shall compliment or be harmonious with existing adjacent development. (Ord. No. 1645, § 18.36.020, 8-15-2005; Ord. No. 1693, § 11(18.36.020), 2-20-2007; Ord. No. 1709, § 10(18.36.020), 7-16-2007) Sec. 38.20.030. Special conditions of a planned unit development. A. The following special conditions shall apply to any planned unit development: 1. Single ownership. The tract or parcel of land involved shall be either in one ownership or the subject of an application filed jointly by the owners of all the property to be included. 2. Title holdings. The approved final plan shall specify the manner of holding title to areas and facilities of joint use and how areas of joint use shall be maintained. Normally such areas and facilities shall be retained in title by the developers of the development or deeded to an organization composed of all owners in the development and meeting the requirements of section 18.72.020, BMC38.38.020. 3. Residential planned unit developments. The permitted number of residential dwelling units shall be determined by the provision of and proximity to public services and subject to the limitations in section 18.36.09038.20.090.E.2.b, BMC. 4. Use of general building and development standards. PROOFS Page 578 of 977 a. All planned unit developments shall be reviewed against the development standards established in this chaptertitle. However, in order to encourage creativity and design excellence that would contribute to the character of the community, deviations from the requirements or the standards of this chaptertitle may be granted by the city commission after considering the recommendations of the applicable review bodies established by this chaptertitle. The PUD application shall be accompanied by written and graphic material sufficient to illustrate the initial and final conditions that the modified standards will produce. Such written and graphic materials may include textual descriptions, site plans, renderings of proposed elevations or landscapes, or similar materials. b. All requested deviations, waivers of submittal requirements and other relaxations of regulatory requirements shall be identified in writing at the time of preliminary plan submittal. Failure to identify such items may result in the delay of application processing in order to receive necessary materials, provide additional public notice or other curative actions. c. The city commission shall make a determination that the deviation will produce an environment, landscape quality and character superior to that produced by the existing standards of this chaptertitle, and which will be consistent with the intent and purpose of this chapterarticle, with the adopted goals of the Bozemancity growth policy and with any relevant adopted design objectives plan. Upon deciding in favor of the deviation request, the city commission may grant deviations, above or below minimum or maximum standards respectively as established in this chaptertitle, including the complete exemption from a particular standard. If the city commission does not determine that the proposed modified standards will create an environment, landscape quality and character superior to that produced by the existing standards of this chaptertitle, and which will be consistent with the intent and purpose of this chapterarticle and with any relevant design objectives plan, then no deviation shall be granted. 5. Establishing additional standards. In addition to the general building and development standards, the city shall have the right to establish general design standards, guidelines and policies, for the purpose of implementing and interpreting the provisions of this chapterarticle. 6. Conformance to sign code. All signs proposed in conjunction with a planned unit development shall be reviewed against the provisions of the Bozemancity sign regulations, Chapter 18.52, BMCarticle 28 of this chapter. All signage must be approved as part of the PUD and shall be designed as an integral element of the overall planned unit development. Approval of signs within a planned unit development shall rest upon a determination by the city commission, as provided by the specific proposal, that the intent of the sign regulations is achieved. Signs which do not comply with Chapter 18.52, BMCarticle 28 of this chapter must receive a deviation. (Ord. No. 1645, § 18.36.030, 8-15-2005; Ord. No. 1693, § 11(18.36.030), 2-20-2007; Ord. No. 1709, § 10(18.36.030), 7-16-2007) Sec. 38.20.040. Planned unit development review procedures and criteria. A. When a subdivision is proposed in conjunction with a zoning planned unit development, the subdivision review shall be coordinated with the zoning review. All steps listed PROOFS Page 579 of 977 in this section shall apply whether the application is for a subdivision or zoning PUD, and reference to plan includes plat unless the context clearly indicates otherwise. Approval of a planned unit development shall consist of three procedural steps: preapplication, preliminary plan and final plan. All subdivision PUDs shall also meet all standards for plats. 1. Preapplication review. a. A preapplication review is mandatory for all planned unit development proposals. b. A preapplication shall be submitted for review and discussion with the DRC, DRB, and if applicable the WRB and planning staff of the applicant's proposal and any requirements, standards or policies that may apply. This step represents an opportunity to identify any major problems that may exist and identify solutions to those problems before formal application. c. Preapplication review procedures. Preapplication review meetings will be held by the DRC, DRB and WRB (if applicable) and will provide guidance for planned unit development applications. The general outline of the planned unit development proposal, presented as graphic sketch plans, shall be submitted by the applicant to the planning department at least ten days prior to the meeting of the review bodies. The outline shall be reviewed by the DRC, DRB and the WRB (if applicable). Thereafter, the planning department shall furnish the applicant with written comments regarding such submittal, including appropriate recommendations to inform and assist the applicant prior to preparing the components of the planned unit development preliminary plan application. 2. Preliminary plan review. Sufficient information shall be submitted to permit review of the land use relationships, densities and the type, size and location of the principal design elements of the planned unit development by the DRC, DRB, WRB (if applicable) and city commission. For a planned unit development that will be developed in phases, the developer must submit either a preliminary plan for all phases, or else submit a preliminary plan for the initial phase or phases and development guidelines for all subsequent phases. Submittal requirements are in addition to those required for site plan and conditional use permit review. a. Application process. Upon completion of preapplication review and receipt of the planning department's comments on the preapplication, an application for preliminary plan approval may be filed with the planning department. b. Public hearings and meetings. Notice of public hearings and/or public meetings for any preliminary plan application shall be provided in accordance with Chapter18.76, BMCarticle 40 of this chapter. c. Review criteria. In order to approve an application for a planned unit development the city commission shall determine that the application is in conformance with all applicable standards, objectives and criteria of this chaptertitle unless an appropriate deviation is granted. d. Recommendations. The DRC, DRB and WRB (if applicable) shall recommend the approval, conditional approval or denial of the preliminary plan to the city commission and shall include in such recommendation the basis upon which such recommendation was determined. e. Preliminary plan approval. The city commission, after conducting a public hearing, may approve, disapprove or approve with conditions the proposed PROOFS Page 580 of 977 planned unit development. The city commission shall issue a written record of their decision to discuss and weigh the review criteria and standards applicable to the PUD. 3. Final plan review and approval. The final plan must be in compliance with the approved preliminary plan and/or development guidelines except as provided for in subsection 3.d of this section, and shall be reviewed DRC and ADR staff and approved by the planning director. a. Application process. Upon approval or conditional approval of a preliminary plan by the city commission, and the completion of any conditions imposed in connection with that approval, an application for final plan approval may be submitted. b. Review criteria; compliance with preliminary plan. For approval to be granted, the final plan shall be in compliance with the approved preliminary plan. This shall mean that all conditions imposed by the city commission as part of its approval of the preliminary plan have been met and: (1) The final plan does not change the general use or character of the development; (2) The final plan does not increase the amount of improved gross leasable nonresidential floor space by more that five percent, does not increase the number of residential dwelling units by more than five percent and does not exceed the amount of any density bonus approved with the preliminary plan; (3) The final plan does not decrease the open space and/or affordable housing provided; (4) The final plan does not contain changes that do not conform to the requirements of this chaptertitle, excluding properly granted deviations, the applicable objectives and criteria of section 18.36.100, BMC38.20.100, or other objectives or criteria of this chaptertitle. The final plan shall not contain any changes which would allowed increased deviation/relaxation of the requirements of this chaptertitle; and (5) The final plat, if applicable, does not create any additional lots which were not reviewed as part of the preliminary plan submittal. c. Final plan approval. The planning director may approve the proposed planned unit development if it conforms to the approved preliminary plan in the manner described above. Prior to final plan approval, the planning director may request a recommendation from the DRC, ADR staff, DRB, WRB or city commission regarding any part of a proposed final plan. If a final plat is part of the final plan submittal, the city commission shall have responsibility to approve the final plat. (1) Final plats associated with a PUD shall be subject to the requirements of sections 18.06.06038.03.060 and § 18.78.070, BMC38.41.070. d. Amendments to final plan. Building permits and other development approvals shall be issued on the basis of the approved final plan and any conditions of approval. No city administrative personnel are permitted to issue permits for improvements which are not indicated on the approved final plan with the exception of the following: PROOFS Page 581 of 977 (1) Minor changes. (a) Minor changes to a planned unit development may be approved administratively and in writing, if at all, by the planning director, whereupon a permit may be issued. Such changes may be authorized without additional public hearings at the discretion of the planning director. This provision shall not prohibit the planning director from requesting a recommendation from the DRB, DRC, ADR staff, WRB or city commission. (b) Minor changes shall be defined as follows: (i) Those developments that do not change the character of the development; (ii) An increase of less than five percent in the approved number of residential dwelling units; (iii) An increase of less than five percent in the approved gross leasable floor areas of retail, service, office and/or industrial buildings; (iv) A change in building location or placement less 321greater than 20 percent of the building width without compromising requirements of the UDO; (v) An increase in the number of lots less than two percent without increasing the density by more than five percent. This is applicable only to zoning PUD plans, not subdivision PUD plats; (vi) The final plan shall not contain any changes which would allow increased deviation/relaxation of the requirements of this chaptertitle; and/or (vii) The final plat, if applicable, does not create any additional lots which were not reviewed as part of the preliminary plan submittal. (c) When a planned unit development has been prepared in sufficient detail to address the concerns of chapterarticle 18.34, BMC19 of this chapter including but not limited to general building envelopes, design character of buildings, and landscaping for some or all of the parcels within its boundaries the final site development plans may be reviewed as an amendment to the PUD final plan. The intention to use this provision must be part of the initial submittal and review of the PUD. (2) Major changes. (a) Major changes to a planned unit development shall be approved, if at all, only by the city commission, and must follow the same planned unit development review and public hearing 321 Note change requested by city staff. PROOFS Page 582 of 977 process required for approval of preliminary plans. The final plan shall not contain any changes which would allow increased deviation/relaxation of the requirements of this chaptertitle without being individually noticed and reviewed for the proposed change. (b) Major changes shall be defined as follows: (i) A change in the character of the development; (ii) An increase of greater than five percent in the approved number of residential dwelling units; (iii) An increase of greater than five percent in the approved gross leasable floor areas of retail, service, office and/or industrial buildings; (iv) A reduction in the approved open space and/or affordable housing units provided; (v) A change in the location and placement of buildings; and/or (vi) An increase in the number of lots above what was approved through the preliminary plan review. This is applicable only to zoning PUD plans, not subdivision PUD plats. The final plat, if applicable, may not create any additional lots which were not reviewed as part of the preliminary plan submittal. (Ord. No. 1645, § 18.36.040, 8-15-2005; Ord. No. 1693, § 11(18.36.040), 2-20-2007; Ord. No. 1709, § 10(18.36.040), 7-16-2007) Sec. 38.20.050. Plan submittal requirements. For each stage of the review process, the applicable information and data described in chapter 18.78, BMCarticle 41 of this chapter shall be submitted unless the planning director determines that the information is unnecessary for the proper evaluation of the development based on the evaluation of the preapplication review. Only after the planning department has determined that all required information has been submitted will the application be processed. When a proposed PUD includes both a subdivision and zoning component, a coordinated application on a form to be provided by the planning department shall be used to coordinate submittal materials and prevent redundant requirements. (Ord. No. 1645, § 18.36.050, 8-15-2005; Ord. No. 1693, § 11(18.36.050), 2-20-2007; Ord. No. 1709, § 10(18.36.050), 7-16-2007) Sec. 38.20.060. Duration of planned unit development approval. A. Duration of preliminary plan approval. The provisions of this subsection A do not apply to subdivision elements of a PUD. 1. Within a maximum of one year following the approval of a preliminary plan, the applicant shall file with the planning department a final plan in detailed form covering the entirety, or one or more phases, of the development. 2. Upon application and for good cause, the planning director may administratively extend the period for filing a final plan for two successive six-month periods. The granting of administrative extensions under this section may, at the discretion of the planning director, be referred to the city commission. 3. Any additional six-month extensions to the planned unit development shall be PROOFS Page 583 of 977 approved, if at all, only by the city commission. A request for extension of preliminary approval under this section must be submitted to the planning director in writing by the applicant at least 30 calendar days prior to the date of expiration. Failure to submit a written request within the specified time period shall cause forfeiture of the right to extension of preliminary approval. 4. If no final plan is filed covering all or any portion of the preliminary plan within the above time limits, the right to proceed under the preliminary plan shall expire for any portion of the preliminary plan for which a final plan has not been timely filed. B. Duration of final plan approval. 1. The applicant must undertake and complete the development of an approved final plan within two years from the time of final plan approval. For the purposes of this section, a development is substantially complete once all engineering improvements (water, sewer, streets, curbs, gutter, streetlights, fire hydrants and storm drainage) are installed and completed in accordance with city rules and regulations. Extensions for two successive periods of six months may be administratively granted by the planning director. The granting of administrative extensions under this section may, at the discretion of the planning director, be referred to the city commission. 2. Any additional six-month extensions to the planned unit development shall be approved, if at all, only by the city commission. A request for extension of final approval under this section must be submitted to the planning director in writing by the applicant at least 30 days prior to the date of expiration. Failure to submit a written request within the specified time period shall cause forfeiture of the right to extension of final approval. Failure to develop within the specified time limit and improvement requirements shall cause a forfeiture of the right to proceed under the final plan and require resubmission of all materials and reapproval of the same through the preliminary plan procedures. 3. The timing of all extensions of final plan approval shall be coordinated with the approval period established for any subdivision plat approval that is part of the PUD so that any expiration dates are consistent. 4. Final plan approval may occur multiple times under the provisions for phased PUDs described below in section 38.20.070. (Ord. No. 1645, § 18.36.060, 8-15-2005; Ord. No. 1693, § 11(18.36.060), 2-20-2007; Ord. No. 1709, § 10(18.36.060), 7-16-2007) Sec. 38.20.070. Phasing of planned unit developments. A. Applications for phased planned unit developments. If a planned unit development is intended to be developed over time in two or more separate phases, application for approval of a phased planned unit development shall follow procedures established for preapplication review as outlined in this chapterarticle. After preapplication review is completed, phased PUDs may be proposed in accordance with one of the following procedures: 1. Application for simultaneous approval of all phases of the PUD. a. Where all phases of a PUD are planned in detail, an application for approval of all phases of the PUD may be made in accordance with preliminary plan review and approval procedures outlined in this chapterarticle. In such cases, preliminary plans and all required supplemental information shall clearly set forth phased development boundaries, schedules and other details pertaining to the phasing of the project. PROOFS Page 584 of 977 b. Upon approval of the preliminary plan for all phases of the PUD, each phase of the development may occur in accordance with the review and approval procedures for final plans as specified in this chapterarticle. 2. Application for approval of initial phase of the PUD with subsequent phases master planned and subject to development guidelines. Where the applicant wishes to gain preliminary and final approval for the initial phase of a PUD, and further wishes to gain master plan and development guidelines approval for subsequent phases of the PUD, preliminary and final plan review and approval procedures for the initial phase shall be followed in accordance with this chapterarticle. A master plan and development guidelines for the remaining phases of the development shall be provided for review and approval as outlined below in subsection B of this section. B. Phased PUD approval process. Master plans and development guidelines shall be reviewed and approved according to the procedures established for preliminary plans as established in this chapterarticle. When a master plan and development guidelines for a phased PUD have been reviewed and approved by the city commission, each phase of the PUD may be developed in accordance with the review and approval procedures set forth in this chapterarticle for final plan reviews. C. Phased PUD review criteria. 1. In general, the review criteria for phased preliminary and final PUDs shall be the same as that for PUDs as set forth in this chaptertitle. 2. In those cases where master plans and development guidelines are proposed to govern the development of future phases of the PUD, the city commission must determine that the proposed master plan and development guidelines are provided in sufficient detail to support a determination that the phased PUD will comply with all requirements for PUD approval if developed in accordance with the approved master plan and development guidelines. 3. DRB or ADR staff, as applicable, and DRC review and approval of preliminary and final plans, for those phases of a PUD which have an approved master plan and development guidelines, shall ensure compliance and consistency with said master plan and development guidelines. 4. Should DRC, DRB or ADR staff, as applicable, determine that proposals to develop subsequent phases of a PUD are not in compliance with the approved master plan and development guidelines, the determination may be appealed to the city commission subject to the provisions of chapter18.66, BMCarticle 35 of this chapter. D. Phased planned unit development submittal requirements. 1. Master plan submittal requirements. Master plans for phased PUDs shall consist of a detailed site plan depicting: a. Existing conditions for the entire phased PUD as required by subsections B and C of section 18.78.120, BMC38.41.120.A.2 and 3; and b. Proposed conditions pertaining to such elements as building location, open spaces, vehicular and pedestrian circulation, and boundaries of the individual phases of the PUD in as much detail as is required by the evaluation of the preapplication review as outlined in this chapterarticle. 2. Development guidelines submittal requirements. Development guidelines for phased PUDs shall be submitted to the planning director as part of the application submittal in one or more orderly documents. Each document shall contain a table of PROOFS Page 585 of 977 contents and shall be in an 8 1/2- by 11-inch vertical format, bound to open flat for review. All graphic representations shall be in 8 1/2- by 11-inch or 11- by 17-inch format. Development guidelines for phased PUDs shall contain the information as is required by the evaluation of the preapplication review as outlined in this chapterarticle. Such information may include, but is not limited to, the following: a. A description of submittal requirements and review procedures for the approval of preliminary and final plans submitted in accordance with the master plan and development guidelines (to be developed with the assistance of staff); b. A description of the coordination with any other applicable review procedures, e.g., subdivision review; c. A complete list of proposed or potential land uses; d. Sign guidelines: type, location, design, illumination, size and height; e. Perimeter buffering guidelines with specific regard to adjoining land uses; f. Landscaping guidelines, including a description of the landscaping theme in relation to the streetscape, the buildings on site, and any proposed signage, open space treatment, parking and circulation areas, display areas and screening; g. Design guidelines for outdoor storage and/or display; h. Protective covenants which may include requirements, property owners’ association provisions, provisions for maintenance, etc.; i. Parking: guidelines for design, provision for shared facilities, circulation between lots, coordination with sidewalk system, and service areas; j. Dimensional requirements: building heights, setbacks (interior and perimeter), open space, etc.; k. Lighting; l. Architectural guidelines; m. Provisions for utilities, communications and refuse; n. Guidelines for noise, emissions, glare, hazardous materials, etc.; and o. Improvements schedule. E. Open space provisions for phased PUD developments. If a project is to be built in phases, each phase shall include an appropriate share of the proposed recreational, open space, affordable housing and other site and building amenities of the entire development used to meet the requirements of section 18.36.09038.20.090.E.2, BMC. The appropriate share of the amenities for each phase shall be determined for each specific project at the time of preliminary approval and shall not be based solely upon a proportional or equal share for the entire site. Requirements may be made for off-site improvements on a particular phased project. F. Final plans for phased PUD developments. Final plans for a planned unit development may be submitted in phases. The final plan shall conform to the preliminary plan of a planned unit development, as approved. G. Duration of phased PUD development guidelines approval. Within a maximum of five years following the approval of development guidelines for a planned unit development, development must commence or the development guidelines must be reviewed for renewal. Any subsequent approvals of a preliminary plan must conform to the development guidelines. PROOFS Page 586 of 977 (Ord. No. 1645, § 18.36.070, 8-15-2005; Ord. No. 1693, § 11(18.36.070), 2-20-2007; Ord. No. 1709, § 10(18.36.070), 7-16-2007) Sec. 38.20.080. Enforcement of approval requirements and conditions. A. The occurrence of either of the following events may subject the applicant to the enforcement remedies contained in chapter18.64, BMCarticle 34 of this chapter: 1. Failure to comply with any terms, conditions or limitations contained on the site plan, landscape plan, building elevations or other approved documents pertaining to a planned unit development which has received final approval from the city. 2. Failure to comply with any conditions on record imposed by the city commission upon its review of the master or preliminary plans, or any conditions imposed by the DRC or ADR through the review of the final plan for the planned unit development, under the provisions of chapter 18.36, BMCarticle 20 of this chapter, Planned Unit Development Ordinance (PUD). (Ord. No. 1645, § 18.36.080, 8-15-2005; Ord. No. 1693, § 11(18.36.080), 2-20-2007; Ord. No. 1709, § 10(18.36.080), 7-16-2007) Sec. 38.20.090. Planned unit development design objectives and criteria. A. General. For any planned unit development proposal to be approved it must first be found, by the city commission, after recommendation from the DRC, DRB or WRB (if applicable), to be in compliance with this chaptertitle including any applicable criteria of this section. B. Land use classifications. 1. The design objectives and criteria with which a planned unit development proposal must comply are dependent upon the designated growth policy land use classification and zoning district of the site proposed for the planned unit development. 2. All planned unit developments are reviewed against the objectives and criteria designated for all development. Each individual planned unit development is then reviewed against the objectives and criteria established for the land use classification of the site on which the proposal is to be located. A planned unit development must satisfy all the objectives and criteria of all applicable groups. 3. In evaluating planned unit developments, the city may determine that certain criteria are not applicable or are irrelevant to a particular development proposal and therefore do not apply to that proposal unless those criteria are applicable to a deviation which is being sought by the applicant. Subsection E of this section contains the groups of objectives and criteria against which planned unit developments are reviewed. C. Evaluation process. The acceptability and performance of a planned unit development proposal shall be evaluated as follows: Each of the relevant objectives and criteria for the applicable land use classification and for all development contained in subsection E of this section, will be answered "Yes," "No" or "Not Applicable" (NA). A "No response" to any of the applicable objectives and criteria will automatically preclude the development proposal from further consideration and eventual approval, unless a deviation is granted by the city commission. An objective or criterion is considered to be applicable if it can reasonably be applied to the development proposal. The applicant shall clearly demonstrate how the planned unit development specifically addresses each applicable objective and criterion. D. Responsibility for impact mitigation. To protect the character of new and existing neighborhoods against intrusive and disruptive development, any negative or adverse impacts PROOFS Page 587 of 977 shall be effectively mitigated in the planned unit development plan, as per the following guidelines: 1. When two adjacent parcels are developed simultaneously, the responsibility for mitigating conflicts is upon the more intense use. 2. When a use is the first to develop on two adjacent vacant parcels, the first use shall provide the necessary buffer to any reasonable future use as determined by the city. 3. The second use to develop shall, at the time it develops, take all additional steps necessary to mitigate conflicts. 4. However, when a planned unit development includes a use or uses which are not otherwise permitted in the underlying zoning district, the responsibility for impact mitigation shall lie exclusively with the planned unit development proposal. E. Design objectives and PUD review criteria. 1. The city will determine compatibility of a project based upon the evidence presented during evaluation of the community design objectives and criteria of this chaptertitle. 2. In addition to the criteria for all site plan and conditional use reviews, the following criteria will be used in evaluating all planned unit development applications. a. All development. All land uses within a proposed planned unit development shall be reviewed against, and comply with, the applicable objectives and criteria of the mandatory "all development" group. (1) Does the development comply with all city design standards, requirements and specifications for the following services: water supply, trails/walks/bike ways, sanitary supply, irrigation companies, fire protection, electricity, flood hazard areas, natural gas, telephone, storm drainage, cable television, and streets? (2) Does the project preserve or replace existing natural vegetation? (3) Are the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) designed and arranged to produce an efficient, functionally organized and cohesive planned unit development? (4) Does the design and arrangement of elements of the site plan (e.g., building construction, orientation, and placement; transportation networks; selection and placement of landscape materials; and/or use of renewable energy sources; etc.) contribute to the overall reduction of energy use by the project? (5) Are the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) designed and arranged to maximize the privacy by the residents of the project? (6) Park land. Does the design and arrangement of buildings and open space areas contribute to the overall aesthetic quality of the site configuration, and has the area of park land or open space been provided for each proposed dwelling as required by section 18.50.020, BMC? 38.27.020. (7) Performance. All PUDs shall earn at least 20 performance points. Nonresidential developments within the North 19th Avenue/Oak PROOFS Page 588 of 977 Street corridor shall earn 30 points. Points may be earned in any combination of the following. The applicant shall select the combination of methods but the city may require documentation of performance, modifications to the configuration of open space, or other assurances that the options selected shall perform adequately. (a) Provision of affordable housing. Exclusive of housing used to satisfy chapter 10, article 17.02 BMC8: (i) Four points for each percent of dwellings to be constructed in the residential development which are provided by donation to the city of Bozeman or their designee; or -- one point for each build ready lot donated to the city for affordable housing provided by a residential or nonresidential development; or (ii) One point for each percent of dwellings to be constructed in the residential development which are provided by long term contractual obligation to an affordable housing agency, for a period of not less than 20 years, with a written plan assuring on-going affordability pricing and eligibility monitoring, and annual re-certification. The city's affordability guidelines and subsequent revisions shall establish affordability and eligibility; (b) Additional open space. (i) One point for each percent of the project area that is provided as non-public open space; or 1 1/4 points for each percent of the project area that is provided as publicly accessible open space. (ii) The portion of the project to be considered in determining the size of area to be provided for open space shall be the gross project area less areas dedicated and transferred to the public, and/or used to meet the park lands requirements of subsection E.2.a.(6) of this section. The area provided for open space shall be exclusive of yard setbacks on individually owned lots and interior parking lot landscaping, and subject to the performance standards of chapterarticle 18.50, BMC27 of this chapter. The area may be provided through a combination of one or more of the following means: (A) Open space within the project boundaries and commonly held by the property owners association for the use of owners, residents and their guests; (B) Open space within the project boundaries and developed as usable recreation space with a corresponding public use easement; (C) Outside of the project boundaries as an addition to an existing off-site park adequate in location and size to meet the recreational needs of the PROOFS Page 589 of 977 residents; (D) Cash-in-lieu of open space subject to the standards of section 18.50.030, BMC38.27.030; or (E) Open space outside of the project boundaries adequate in size and location to meet the recreational needs of the residential development only with the approval of the city commission. The site is subject to the standards of sectionarticle 18.50, BMC27 of this chapter and must demonstrate a geographic and service relationship to the residential development. (c) Adaptive reuse of historic buildings. Two points for each ten percent of total number of dwelling units in a residential development which are provided by the adaptive reuse of an individually listed or eligible to be listed historic structure; one point for each ten percent of total commercial and/or industrial floor area which is provided by the adaptive reuse of an individually listed or eligible to be listed historic structure; up to a total of one-third of the performance points required to be earned. (d) Underutilized and brownfield sites. One point for each 50 percent increase in the total square footage of commercial and/or industrial floor area on underutilized sites; one point for each 50 percent increase in the total number of dwelling units on underutilized sites; one point for each acre developed of the environmentally contaminated land; up to a total of one-third of the performance points required to be earned. (8) Is the development being properly integrated into development and circulation patterns of adjacent and nearby neighborhoods so that this development will not become an isolated "pad" to adjoining development? b. Residential. Planned unit developments in residential areas (R-S, R-1, R-2, R- 3, R-4, RMH, and R-O and NEHMU322 zoning districts) may include a variety of housing types designed to enhance the natural environmental, conserve energy, recognize, and to the maximum extent possible, preserve and promote the unique character of neighborhoods, with provisions for a mix of limited commercial development. For purposes of this section, "limited commercial development" means uses listed in the B-1 neighborhood service district (Chapter18.18, BMCarticle 10 of this chapter), within the parameters set forth below. All uses within the PUD must be sited and designed such that the activities present will not detrimentally affect the adjacent residential neighborhood. (1) On a net acreage basis, is the average residential density in the project (calculated for residential portion of the site only) consistent with the development densities set forth in the land use guidelines of 322 Note change requested by city staff. PROOFS Page 590 of 977 the Bozemancity growth policy? (2) Does the project provide for private outdoor areas (e.g., private yards, patios and balconies, etc.) for use by the residents and employees of the project which are sufficient in size and have adequate light, sun, ventilation, privacy and convenient access to the household or commercial units they are intended to serve? (3) Does the project provide for outdoor areas for use by persons living and working in the development for active or passive recreational activities? (4) If the project is proposing a residential density bonus as described below, does it include a variety of housing types and styles designed to address community wide issues of affordability and diversity of housing stock? (5) Is the overall project designed to enhance the natural environment, conserve energy and to provide efficient public services and facilities? (6) Residential density bonus. If the project is proposing a residential density bonus (30 percent maximum) above the residential density of the zoning district within which the project is located and which is set forth in chapter8.16, BMCarticle 8 of this chapter, does the proposed project exceed the established regulatory design standards (such as for setbacks, off-street parking, open space, etc.) and ensure compatibility with adjacent neighborhood development? The number of dwelling units obtained by the density bonus shall be determined by dividing the lot area required for the dwelling unit type by one plus the percentage of density bonus sought. The minimum lot area per dwelling obtained by this calculation shall be provided within the project. Those dwellings subject to chapter 10, article 17.02 BMC8, shall be excluded in the base density upon which the density bonus is calculated. (7) Limited commercial. If limited commercial development, as defined above, is proposed within the project, is less than 20 percent of the gross area of the PUD designated to be used for offices or neighborhood service activities not ordinarily allowed in the particular residential zoning district? (a) If neighborhood service activities are proposed within the project, is a market analysis provided demonstrating that less than 50 percent of the market required to support proposed neighborhood service activities is located outside the immediate area of the PUD and are the neighborhood services of a nature that does not require drive-in facilities or justification for through traffic? (b) If the project contains limited commercial development, as defined above, is the project located at the intersection of arterial streets, or arterial and collector streets? (c) If the project contains limited commercial development, as defined above, has the project been sited and designed such that the activities present will not detrimentally affect the PROOFS Page 591 of 977 adjacent residential neighborhood and have the commercial activities been developed at a scale compatible with residential development? (8) Does the overall PUD recognize and, to the maximum extent possible, preserve and promote the unique character of neighborhoods in the surrounding area? c. Commercial. Planned unit developments in commercial areas (B-1, B-2, and B-3 and UMU 323zoning districts) may include either commercial or multi- household development, however adequate but controlled access to arterial streets is essential. Activities would include a broad range of retail and service establishments designed to serve consumer demands of the Bozemancity area. (1) If the project contains any use intended to provide adult amusement or entertainment, does it meet the requirements for adult businesses? (2) Is the project contiguous to an arterial street, and has adequate but controlled access been provided? (3) Is the project on at least two acres of land? (4) If the project contains two or more significant uses (for instance, retail, office, residential, hotel/motel and recreation), do the uses relate to each other in terms of location within the PUD, pedestrian and vehicular circulation, architectural design, utilization of common open space and facilities, etc.? (5) Is it compatible with and does it reflect the unique character of the surrounding area? (6) Is there direct vehicular and pedestrian access between on-site parking areas and adjacent existing or future off-site parking areas which contain more than ten spaces? (7) Does the project encourage infill, or does the project otherwise demonstrate compliance with the land use guidelines of the Bozemancity growth policy? (8) Does the project provide for outdoor recreational areas (such as additional landscaped areas, open spaces, trails or picnic areas) for the use and enjoyment of those living in, working in or visiting the development? d. Industrial. Planned unit industrial developments in industrial areas (M-1, M- 2, and BP and NEHMU324 zoning districts) may include employment, wholesaling, manufacturing and utility centers for the community. The particular types or combination of uses shall be determined based upon its merits, benefits, potential impact upon adjacent land uses and the intensity of development. (1) Is the project located adjacent to an arterial or collector street that provides adequate access to the site? 323 Note change requested by city staff. 324 Note change requested by city staff. PROOFS Page 592 of 977 (2) Is the project developed such that the least intense uses shall be located along the arterial streets, where visibility to the public is likely? More intense uses such as heavy industrial uses and warehousing activities will be located away from the arterial streets, buffered by the other uses. (3) Does the project utilize a landscaping theme that will tie adjacent uses or projects together? (4) Is the project being developed on land substantially surrounded by property approved for development or developed property with existing services and utilities already available? (Ord. No. 1645, § 18.36.090, 8-15-2005; Ord. No. 1693, § 11(18.36.090), 2-20-2007; Ord. No. 1709, § 10(18.36.090), 7-16-2007) Sec. 38.20.100. North 19th Avenue/West Oak Street entryway corridors. A. Intent and purpose. It is the intent and purpose of this section to establish the planned unit development (PUD) review procedures as a method to guide future growth and development within the area of the North 19th Avenue/West Oak Street Corridor Master Plan. It is further intended to ensure that future growth and development will occur in accord with the goals and objectives of the North 19th Avenue/West Oak Street Corridor Master Plan and it successors as a subarea plan to the Bozemancity growth policy. B. Application. Planned unit development provisions shall apply to all nonresidential development proposals located in the North 19th Avenue and West Oak Street Entryway Corridor areas as designated on the land use plan of the North 19th Avenue/West Oak Street Corridor Master Plan and on the city’s official zoning map as follows: 1. North 19th Avenue. (Class I and Class II corridor) All nonresidential development within the North 19th Avenue Entryway Corridor, between Durston Road and the North 19th Avenue-Interstate 90 Interchange, measured 660 feet from the centerline of North 19th Avenue, exclusive of the following: a. Between Durston Road and the south boundary of Covered Wagon Mobile Home Court, a Class II entryway corridor overlay classification shall be applied to the east side of North 19th Avenue, measured 330 feet from the centerline of North 19th Avenue. 2. West Oak Street. (Class I and Class II corridor) All nonresidential development within the West Oak Street Entryway Corridor between North 7th Avenue and Rose Park shall be applied within such corridor as follows: a. Between North 7th Avenue and North 19th Avenue, measured 660 feet from the centerline of West Oak Street; or b. Between North 19th Avenue and the east boundary of Rose Park, measured 330 feet from the centerline of West Oak Street. C. It is required that any developments subject to this section comply with all of the specific development standards of the design objectives plan for North 19th Avenue/West Oak Street Corridors. Residential developments within this corridor are not required to be developed as a planned unit development, but do need to comply with the specific development standards of the design objectives plan for North 19th Avenue/West Oak Street Corridors. (Ord. No. 1645, § 18.36.100, 8-15-2005; Ord. No. 1693, § 11(18.36.100), 2-20-2007; Ord. No. 1709, § 10(18.36.100), 7-16-2007) PROOFS Page 593 of 977 CHAPTER 18.38. GENERAL LAND USE STANDARDS AND REQUIREMENTS ARTICLE 21. GENERAL LAND USE STANDARDS AND REQUIREMENTS Sec. 38.21.010. Area requirements for individual buildings - restrictions. No part of any yard, or other open space, or off-street parking or loading space required about or in connection with any building for the purpose of complying with this chaptertitle, shall be included as part of a yard, open space or off-street parking or loading space similarly required for any other building except as provided in section 18.46.05038.25.050. (Ord. No. 1645, § 18.38.010, 8-15-2005; Ord. No. 1761, exh. F(18.38.010), 7-6-2009) Sec. 38.21.020. Yards and lots reduction prohibited. No yard or lot existing at the time of adoption date of the ordinance codified infrom which this chaptertitle is derived shall be reduced in dimension or area below the minimum requirements of said ordinancethis chapter except as set forth herein. Yards or lots created after the effective date of said ordinance shall meet at least the minimum requirements established by this chaptertitle. (Ord. No. 1645, § 18.38.020, 8-15-2005; Ord. No. 1761, exh. F(18.38.020), 7-6-2009) Sec. 38.21.030. Use of lands; buildings and structures. A. Only uses specifically identified by this chaptertitle to be built. No building, or structure or part thereof shall be erected, altered or enlarged for a use, nor shall any existing building, structure or part thereof, or land, be used for a purpose or in a manner that is not in conformity with the uses listed as permitted authorized uses for the zone in which such buildings, structure or land is situated. In addition, any land, building or structure to be erected or used for a purpose listed as a conditional use in such zone shall first receive approval from the city commission. Existing nonconforming uses and structures shall be governed by chapter18.60, BMCarticle 32 of this chapter. B. No building, or part thereof, or structure shall be erected, nor shall any existing building be altered, enlarged or rebuilt, or moved into any zone, nor shall any open space be encroached upon or reduced in any manner, except in conformity to the yard and setback regulations designed for the zone in which such building or open space is located, except as otherwise specified in this chaptertitle. C. Recreational vehicle parking on residential lot. No person shall park or occupy any recreational vehicle or mobile home on the premises of any occupied dwelling or on any lot which is not a part of the premises of any occupied dwelling, either of which is situated outside of any approved manufactured home community or recreational vehicle park except that: 1. The parking of only one unoccupied recreational vehicle in any accessory private garage, or in a rear yard in any district is permitted, providing no living quarters shall be maintained or any business practiced in the recreational vehicle while such recreational vehicle is so parked or stored; and 2. In the event of hardship, temporary use permits may be granted for occupying such recreational vehicle or mobile home. D. Municipal infrastructure requirements. 1. Whenever any building lots and/or building sites are created inside the city limits or existing lots are annexed, and prior to the issuance of any building permits on such lots or sites, municipal water distribution, municipal sanitary sewer collection, and streets shall be provided to the site. Each building site must utilize and be connected to both the municipal water distribution and municipal sanitary sewer collection systems. Installation of improvements is subject to Chapter18.74, BMCarticle 39 of PROOFS Page 594 of 977 this chapter. a. Alternative. When in the city's sole determination it is in the city's long term best interests to allow a building lot or site to be created or developed without immediate access to either municipal water or municipal sewer the city may, in its sole discretion, make such allowance when all of the following have been met: (1) The nonmunicipal system to service the lot or site shall be designed, reviewed and constructed to meet city of Bozeman standards. Systems serving more than one lot or user shall be central systems; (2) The nonmunicipal system shall be designed and constructed in a manner to allow connection to the municipal system components shown in applicable facility plans to serve the property at such time as it becomes available; (3) The landowner shall provide waivers of right to protest creation of SIDs or other financing methods to extend municipal water and sewer services. Such extensions or connections may require construction of system components that are not immediately adjacent to the building lot or site; (4) The landowner shall agree to connect to municipal water and sewer services and abandon and remove nonmunicipal services when so instructed by the city. Such agreement shall be binding on all successors and run with the land; (5) If the city takes responsibility to operate the nonmunicipal system it may impose a surcharge to cover extra operational expenses. City operation of the system is at the city's discretion; (6) The requirement for future connection to the municipal water and/or sewer system, waivers and agreements, and other applicable materials shall be either noted on the plat or final plan or a separate notice be recorded at the Gallatin county clerk and recorder's office so that such notice will appear on a title report or abstract of the property; (7) No nonmunicipal water or sewer systems shall be constructed until it has received all necessary approvals from the state department of environmental quality, City of Bozeman, County Environmental Health, and any other relevant agency; and (8) The use of municipal water or sewer systems is considered to be the best means to protect the public interest and welfare. The alternative for the use of nonmunicipal systems is intended to be used sparingly and in extraordinary circumstances. In order to protect the public interest, in approving a nonmunicipal system the city may impose such conditions of approval as it deems necessary. 2. These improvements shall be designed, constructed and installed according to the standards and criteria as adopted by the city and approved by both the city engineer and water and sewer superintendent prior to the issuance of any building permits. 3. When municipal water distribution and municipal sanitary sewer collection systems are being provided to serve a development proposal occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, planned unit development (PUD), the PROOFS Page 595 of 977 issuance of a building permit may be allowed prior to completion of the public infrastructure, provided the criteria of section 18.74.030, BMC38.39.030 are met. 4. Notwithstanding the provisions of subsection D.3 of this section, the city may limit the scope, type and number of projects eligible for simultaneous construction consideration. (Ord. No. 1645, § 18.38.030, 8-15-2005; Ord. No. 1761, exh. F(18.38.030), 7-6-2009) Sec. 38.21.040. Dwelling unit restrictions. A. No use of unfinished structures. No cellar, garage, tent, tepee, yurt, basement with unfinished structure above, accessory building, or vehicle; or any manufactured home or recreational vehicle outside of an approved manufactured home community, recreational vehicle park, or approved individual lot in accordance with §18.40.130, BMCsection 38.22.130 shall at any time be used as a dwelling unit, unless approved for use as a temporary dwelling unit due to a demonstrated hardship. B. Use of basements. The basement portion of a finished home shall be properly damp- proofed and have heating, ventilation, suitable fire protection and exits if used for living purposes, and natural lighting. (Ord. No. 1645, § 18.38.040, 8-15-2005;Ord. No. 1761, exh. F(18.38.040), 7-6-2009) Sec. 38.21.050. Accessory buildings, uses and equipment. A. An accessory building shall be considered an integral part of the principal building if it is connected to the principal building by a common wall for not less than five feet. B. Accessory buildings, uses or equipment shall not be stored or constructed between the front lot line and required front building line. C. Accessory buildings and garages shall not be located within a utility easement without written approval of the easement holder. D. Accessory buildings in any business or industrial district may be located only to the rear of the front line of the principal building. E. No accessory building shall exceed the footprint of the principal building unless such accessory building has been otherwise approved per this chaptertitle. An accessory building shall not either: 1. Exceed the height of the principal building unless such accessory building has been otherwise approved per this chaptertitle; or 2. Within a residential district, exceed a height of 1 1/2 stories, where a half story is established by a side wall, under a sloped roof, of three feet in height or less above the floor level within space allowed to be occupied by persons by the International Building Code. 3. The height between finished floor to finished floor shall not exceed 12 feet in residential districts. A greater height between finished floors may be approved in nonresidential districts if the other requirements of this chaptertitle are met. F. Mechanical equipment screening. 1. Rooftop mechanical equipment should be screened. Screening should be incorporated into the roof form when possible. The requirement for screening of rooftop mechanical equipment does not apply to solar or wind energy collection devices. 2. Ground-mounted mechanical equipment shall be screened from public rights-of-way with walls, fencing or evergreen plant materials. Mechanical equipment shall not PROOFS Page 596 of 977 encroach into required setbacks. G. Detached structures setback requirements. 1. Accessory structures less than or equal to 120 square feet in footprint shall not be located in any front, side, or corner-side yard and shall maintain a minimum setback of three feet from the property lines in the rear yard. 2. Accessory structures greater than 120 square feet but less than or equal to 600 square feet in footprint shall not be located in any front, side, or corner-side yard. The accessory structure shall be set back a minimum of either: six feet, or when parking is provided between the structure and the rear property line, 20 feet except when required parking spaces need a greater setback for back-up maneuverability. See the following examples below: Alley Right-of-Way Width Setback for Garage Setback for a Garage with Stacked Parking Off of an Alley 30 feet 6 feet 20 feet 20 feet 6 feet 26 feet 16 feet 10 feet 30 feet 14 feet 12 feet 32 feet 3. Accessory structures greater than 600 square feet shall not be located in any required front, rear, or side yard and shall provide adequate back-up maneuverability for required parking spaces. H. Structures may occupy not more than 20 percent of the area of the lot located to the rear of the principal building. I. All structures located within the neighborhood conservation or entryway corridor overlay districts require a certificate of appropriateness. J. More than two deviations shall not be granted for any accessory structure. (Ord. No. 1645, § 18.38.050, 8-15-2005; Ord. No. 1761, exh. F(18.38.050), 7-6-2009) Sec. 38.21.060. Yard and height encroachments, limitations and exceptions. A. Permitted encroachments into yards. The following shall be permitted encroachments into required yards, subject to any and all applicable International Building Code requirements: 1. Architectural features which do not add usable area to a structure, such as chimneys, balconies, stairways, wing walls, bay windows, sills, pilasters, lintels, cornices, eaves, gutters, awnings, window wells and steps, provided such architectural features do not extend more than five feet into any required front or rear yard; 2. Architectural features, which do not add usable area to a structure, such as chimneys, balconies, stairways, wing walls, bay windows, sills, pilasters, lintels, cornices, awnings, window wells and steps, provided such architectural features do not extend more than two feet into any required side yard, except that eaves and gutters may extend 2.5 feet into any required side yard; 3. Terraces and patios, uncovered decks and stoops or similar features, provided that PROOFS Page 597 of 977 such features shall not extend above the height of the ground floor level of the principal structure nor more than five feet into any required front or rear yard or two feet into any required side yard; 4. Where porches, covered terraces and covered decks occupy not more than one-third of the length of the building wall, excluding the width of the garage if applicable they may encroach: a. Where the required front yard is greater than 15 feet, not more than five feet into any required front yard; b. Not more than five feet into a required rear yard; c. Not more than two feet into any required side yard; and 5. Fire escapes may be permitted in required side or rear yards only; 6. Wheelchair ramps may encroach into any required yard, but shall not be located closer than three feet from any property line; and 7. Flagpoles, ornamental features, trees, shrubs, walkways, and nameplate signs may be located within a required yard. Street vision triangle requirements apply. B. Zero lot line conditions. In districts where zero side yard setbacks are not otherwise allowed, where an individual owns two or more adjoining lots, or where the owners of two or more adjoining lots make legal written agreement recorded at the Gallatin county clerk and recorder, a zero lot line concept may be used for commercial or single-household dwelling unit developments. In residential districts this may result in the creation of a two-household residential structure, only in districts permitting such a structure, or the creation of townhouse clusters in districts permitting such structures. In all such cases in residential districts, a minimum eight-foot side yard shall be maintained adjacent to the exterior side, or nonzero lot line side, of the structure. C. Special yard setbacks. 1. Where the required setback is greater than 15 feet, the corner side yard for any corner lot not located on an arterial street may be 15 feet. However, where the vehicular access to a garage is located on the frontage of the corner side yard, the portion accessible to vehicles shall maintain at least a 20-foot setback. 2. A 25-foot front yard or corner side yard shall be provided on all arterials designated in the Bozemancity growth policy, except within the B-3 district. 3. Setbacks from watercourses as set forth in section 18.42.100, BMC38.23.100. 4. Setbacks from intersections as set forth in section 18.44.090, BMC38.24.090. D. Height limitation exceptions. 1. Non-specific exemptions. No building, or part thereof, or structure shall be erected, reconstructed or structurally altered to exceed in height the limit herein designated for the district in which such building is located, except as is specified in chapter18.66, BMCarticle 35 of this chapter, or as specifically authorized by the city commission as an approved condition of a planned unit development. Such approved conditions must include the recommendations of the city fire marshal. 2. Specific exemptions. a. Height limitations shall not apply to church spires, belfries, cupolas and domes; monuments; chimneys and smokestacks; flag poles; public and private utility facilities; parapet walls extending no more than four feet above the limiting height of the building except as hereinafter provided; amateur radio PROOFS Page 598 of 977 antennae; solar energy collectors and equipment used for the mounting or operation of such collectors; and building mounted horizontal and vertical axis wind energy collectors under 15 feet in height from the building mounting surface and equipment used for the mounting or operation of such collectors. b. Places of public assembly in churches, schools and other permitted public and semipublic buildings may exceed height limitations otherwise established by this chaptertitle, provided that: (1) These are located on the ground floor of such buildings; and (2) That for each one foot by which the height of such building exceeds the maximum height otherwise permitted in the district, its side and rear yards shall be increased in width or depth by an additional one foot over the side and rear yards required in the district. c. Elevator and stair penthouses, water tanks, monitors and scenery lofts are exempt from height limitations otherwise established in this chaptertitle, provided that no linear dimension of any such structure exceed 50 percent of the corresponding street frontage line. d. Towers and monuments, cooling towers, gas holders or other structures, where the manufacturing process requires a greater height, and grain elevators and silos are exempt from this chaptertitle, provided that any structure above the height otherwise permitted in the district shall occupy no more than 25 percent of the area of the lot and shall be at least 25 feet from every lot line. e. Height restrictions for wireless facilities are governed by chapter18.54, BMCarticle 29 of this chapter. (Ord. No. 1645, § 18.38.060, 8-15-2005; Ord. No. 1761, exh. F(18.38.060), 7-6-2009) Sec. 38.21.070. Standards for specific site impacts and elements. A. Surface-water ponding. Natural ponding areas shall be retained as much as possible or, if necessary, enlarged or modified as directed by the city engineer to restrict the off-site runoff, subject to the stormwater runoff control provisions of this chaptertitle and the city's stormwater drainage requirements. B. Trash and garbage incineration. No exterior incineration of materials is permitted except as allowed by the department of public safety. C. Smoke, dust and other particulate matter. The emission of smoke or other particulates from any point source shall not exceed a density greater than that permitted by Method 9, 40 CFR 60 Appendix A. Dirt, dust, fly ash and other forms of particulate matter shall not be emitted beyond the property lines of the use creating the particulate matter. D. Bulk storage (liquid). All uses associated with bulk storage of all gasoline, liquid fertilizer, chemicals, flammable and similar liquids shall comply with International Building Code and International Fire Code requirements and any applicable county regulations. F. Water quality, hazardous wastes and wastewater. Discharge of hazardous waste, chemicals or wastewater will be subject to Montanastate department of environmental quality standards and permitting processes. But in no case shall any hazardous waste, hazardous chemicals or hazardous wastewater be discharged into any perennial stream within the city. G. Odors and toxic gases. PROOFS Page 599 of 977 1. The emission of odors shall be controlled such that objectionable or offensive odors are not perceptible beyond a distance of 50 feet past the property lines of the use creating the odors. 2. No toxic, noxious or corrosive fumes or gases shall be emitted beyond the property lines of the use creating such fumes or gases. H. Noise. No noise shall be produced that causes a violation of the city's regulations regarding disturbance of the peace or creates a nuisance. I. Vibrations. No ground vibrations, except for those only perceptible with the use of instruments, shall be permitted beyond the property lines of the use generating the ground vibrations. J. Electrical disturbance. No activity shall be permitted which causes electrical disturbances affecting the operation of any equipment located beyond the property line of the activity. This paragraphsubsection J does not apply to uses which are regulated by and are in compliance with federal agencies or law. K. Glare and heat. Any use producing intense glare or heat shall be conducted so that the glare is effectively screened from view at any point on the lot line of the lot in which the use is located. Any heat will be dissipated so that it is not perceptible without instruments at any point on the lot line of the lot on which the use is located. L. Fire and explosive hazards. Any use or activity involving the use or storage of combustible, flammable or explosive materials shall be in compliance with the Uniform International Fire Code325 as adopted by the city. Burning of waste materials in open fires is prohibited, unless otherwise permitted by and in conformance with, another ordinance. M. Liquid or solid waste. No materials, compounds or chemicals, which can contaminate any water supply, interfere with bacterial processes in sewage treatment or otherwise cause emissions of elements which are offensive or hazardous to the public health, safety and general welfare shall be discharged at any point into any public sewer, private sewage disposal system or stream or into the ground, except in accordance with thethis Code of the city and the standards approved by the Montana state department of environmental quality or such governmental agency as may have jurisdiction over such activities. N. Fissionable, radioactivity or electromagnetic disturbance. No activities shall be permitted which utilize fissionable or radioactive materials if, at any time, their use results in the release or emission of any fissionable or radioactive material into the atmosphere, ground or sewerage system. No activities or devices shall be permitted which at any time emit radio- frequency energy affecting any activity or the operation of any equipment beyond the site property line. Radio-frequency energy shall be considered as being electromagnetic energy at any frequency in the radio spectrum between ten kilocycles and 3,000,000 megacycles. This limitation on radio- frequency interference does not apply to those uses and circumstances falling under the jurisdiction of the FCC. (Ord. No. 1645, § 18.38.070, 8-15-2005; Ord. No. 1761, exh. F(18.38.070), 7-6-2009) Sec. 38.21.080. Clean up of property and revegetation required. A. Cleanup of property. Prior to final plat or final occupancy approval, the developer shall ensure that all construction and other debris are removed from the development. This includes concrete, asphalt, dead trees and shrubs, and fencing materials. 325 Should "Uniform Fire Code" be changed to "International Fire Code"? Yes. PROOFS Page 600 of 977 B. Revegetation. All areas disturbed during construction shall be reseeded with vegetation types approved by the Gallatin county weed control supervisor. (Ord. No. 1645, § 18.38.080, 8-15-2005; Ord. No. 1761, exh. F(18.38.080), 7-6-2009) CHAPTER 18.40. STANDARDS FOR SPECIFIC USES ARTICLE 22. STANDARDS FOR SPECIFIC USES Sec. 38.22.010. Purpose. The purpose of this section is to further describe the standards and conditions under which certain uses may be permitted as principal or conditional uses in specific districts. (Ord. No. 1645, § 18.40.010, 8-15-2005; Ord. No. 1693, § 12(18.40.010), 2-20-2007; Ord. No. 1709, § 11(18.40.010), 7-16-2007; Ord. No. 1761, exh. G(18.40.010), 7-6-2009) Sec. 38.22.020. Applicability. All uses listed in this section shall be subject to the specific standards described for each use, in addition to all other applicable standards. (Ord. No. 1645, § 18.40.020, 8-15-2005; Ord. No. 1693, § 12(18.40.020), 2-20-2007; Ord. No. 1709, § 11(18.40.020), 7-16-2007; Ord. No. 1761, exh. G(18.40.020), 7-6-2009) Sec. 38.22.030. Accessory dwelling units. A. An owner or the owners of real property may establish and maintain an accessory dwelling unit, either within a detached single-household dwelling or above a detached garage which is accessory to the detached single-household dwelling, in the R-S or R-1 districts if all of the following conditions are met and continue to be met during the life of the accessory dwelling unit: 1. The detached dwelling unit within which the accessory dwelling unit is located, or the accessory dwelling unit itself, is actually and physically occupied as a principal residence by at least one owner of record who possesses at least an estate for life or a 50 percent fee simple ownership interest. No more than one of the dwellings, either the principal dwelling or the accessory dwelling, may be rented by non-owners at the same time. The city may require a guarantee of compliance with the requirements of this section, including but not limited to a binding deed restriction or covenant enforcing the single rental restriction as allowed in section 18.74.08038.39.080.B, BMC, as a condition of approval; 2. In addition to the parking required for the principal residence, one paved off-street parking space is provided for the exclusive use of the accessory dwelling unit. The parking provided shall be located on the lot and may not utilize the on-street parking provisions of chapter18.46, BMCarticle 25 of this chapter; 3. The occupancy of the accessory dwelling unit does not exceed two persons; 4. Garages shall not be converted for use as accessory dwelling units. However, accessory dwelling units shall be permitted to be placed above garages only in subdivisions receiving preliminary plat approval after January 1, 1997; 5. No permit for an accessory dwelling unit shall be granted unless the lot has been configured to accept an accessory dwelling unit with adequate lot area, utility services, and compliance with setbacks and height standards; 6. In no case shall an accessory dwelling unit be larger than 800 square feet or have more than a single bedroom. The method of calculating the maximum ADU square footage will be "living area" defined as "all floor area exclusive of areas with a sloped PROOFS Page 601 of 977 ceiling less than five (3) three feet326 in height, stairwells, and exterior decks." Bedrooms, living rooms, kitchens, casework, interior walls, hallways, closets, bathrooms, and any other living space shall be included in the maximum square footage calculation.; 7. Second story additions on detached garages shall be approved only if found compatible and consistent with the character and fabric of the neighborhood; 8. Only one accessory dwelling unit may be created per lot; and 9. If the accessory dwelling unit is a part of the principal dwelling unit, the accessory dwelling unit shall be clearly incidental to the principal dwelling unit and shall meet the following criteria: a. The accessory dwelling unit is created only in a single-household detached dwelling unit on a lot of 6,000 square feet or more; b. The accessory dwelling unit does not exceed one-third of the total area of the principal structure; c. The accessory dwelling unit is created only through internal conversion of the principal structure or constructed above a garage. Minor exterior changes may be made on the building, if the square footage added constitutes no more than ten percent of the principal structure's existing living area (exclusive of the garage); and d. If the entrance for the accessory dwelling unit is separate from the entrance of the principal structure, the entrance shall only be located in the rear or side yards. 10. All accessory dwelling units are subject to CUP provisions established in chapterarticle 18.34, BMC19 of this chapter. 11. No deviations shall be granted to lot area requirements or parking requirements to allow the establishment of an accessory dwelling unit. In no case shall more than a total of two deviations be granted to allow the establishment of an accessory dwelling unit. B. An owner or the owners of real property may establish per §18.34.050section 38.19.050 and maintain an accessory dwelling unit, in the R-2, R-3, R-4 or R-O districts if all of the following conditions are met and continue to be met during the life of the accessory dwelling unit. If the following conditions are not met the dwelling shall be reviewed under the provisions of section 18.34.090, BMC38.19.090. 1. In addition to the parking required for the principal residence, the minimum number of required paved off-street parking shall be provided for the exclusive use of the accessory dwelling unit; 2. The occupancy of the accessory dwelling unit does not exceed two persons; 3. Garages shall not be converted for use as accessory dwelling units. However, accessory dwelling units shall be permitted to be placed above garages; 4. In no case shall an accessory dwelling unit be larger than 600 square feet or contain more than a single bedroom. The method of calculating the maximum ADU square footage will be "living area" defined as "all floor area exclusive of areas with a sloped 326 Is the correct number five or three? The correct number is three (3). PROOFS Page 602 of 977 ceiling less than five feet in height, stairwells, and exterior decks." Bedrooms, living rooms, kitchens, casework, interior walls, hallways, closets, bathrooms, and any other living space shall be included in the maximum square footage calculation; 5. Second story additions on detached garages shall be approved only if found compatible and consistent with the existing character and fabric of the neighborhood; and 6. Only one accessory dwelling unit may be created per lot. 7. No deviations shall be granted to lot area requirements or parking requirements to allow the establishment of an accessory dwelling unit. In no case shall more than a total of two deviations be granted to allow the establishment of an accessory dwelling unit. 8. The accessory dwelling unit is located above a detached garage. 9. An accessory dwelling unit may not be approved on a reduced size lot created to meet the minimum workforce housing requirements of chapter 10, article 17.02, BMC8. C. The applicant shall comply with building department standards. (Ord. No. 1645, § 18.40.030, 8-15-2005; Ord. No. 1693, § 12(18.40.030), 2-20-2007; Ord. No. 1709, § 11(18.40.030), 7-16-2007; Ord. No. 1761, exh. G(18.40.030), 7-6-2009) Sec. 38.22.040. Adult businesses. A. In addition to the requirements to be followed for all development established in this chaptertitle, the following requirements shall apply to all adult businesses: 1. An adult business must be separated by at least a 500-foot radius from any other adult use, residence, residential district, school, place of worship, public park or any youth-oriented establishment. Subsequent establishment of one of the above-listed uses within the required separation radius does not compel the relocation of an adult business. (Ord. No. 1645, § 18.40.040, 8-15-2005; Ord. No. 1693, § 12(18.40.040), 2-20-2007; Ord. No. 1709, § 11(18.40.040), 7-16-2007; Ord. No. 1761, exh. G(18.40.040), 7-6-2009) Sec. 38.22.050. Alcohol sales for on-premises consumption. Alcohol sales for on-premises consumption, on either a temporary or permanent basis, may not be conducted on the same lot or premises where an adult business or auto retail fuel sale is permitted. (Ord. No. 1645, § 18.40.050, 8-15-2005; Ord. No. 1693, § 12(18.40.050), 2-20-2007; Ord. No. 1709, § 11(18.40.050), 7-16-2007; Ord. No. 1761, exh. G(18.40.050), 7-6-2009) Sec. 38.22.060. Automobile repair and/or fuel sales. A. In addition to the requirements to be followed for all convenience uses as defined in this chaptertitle, and provided in section 18.40.10038.22.100, the following requirements shall apply to all service station and automobile uses as listed belowin this section. Compliance with all criteria listed belowin this section does not necessarily guarantee approval by the city. 1. Gas pump and pump island canopies are to be located not closer than ten feet to any side or rear property line. Design of the canopy shall architecturally match the design of the main building. All canopies shall be connected to the roof of the main structure unless otherwise approved. All lighting shall meet the lighting standards of this chaptertitle. The maximum height of the canopy shall not exceed 18 feet. All signs must conform to the sign regulations of chapter 18.52, BMCarticle 28 of this PROOFS Page 603 of 977 chapter; 2. All on-site activities, except those normally performed at the fuel pumps, are to be performed within a completely enclosed building; 3. Where towing service is to be provided, a parking bay for the towing vehicle is to be provided. Vehicles that are either under repair or vehicles that have been repaired may be stored on a temporary basis, not to exceed seven days, and designated parking bays must be provided for each vehicle awaiting repairs. Vehicle storage areas are subject to the same screening requirements as parking lots; 4. All lighting shall conform to section 18.42.15038.23.150; 5. All structures approved under these standards shall be of a design character that is appropriate to the area in which they are to be constructed. Color renderings of buildings shall accompany each application and construction shall be in conformity thereto. Architectural detailing shall be consistent on all four sides of the building; 6. All restroom entrances shall be screened from view of adjacent properties or street rights-of-way by a decorative wall or landscaping, or shall be accessed from the inside of the main entrance to the building; 7. No outside storage of, and no sale, lease or rental of trailers, trucks or similar equipment shall be permitted except as may be specifically allowed in that zone; 8. Parking space for each service stall in the station shall be provided. Pump islands shall not be considered as service bays. Standing areas at pump islands and interior circulation areas shall not be used as parking areas in calculating required parking spaces; and 9. Automotive repair facilities. a. All repairs or painting shall be performed within a building; b. No site plan shall be approved which exposes unassembled vehicles, auto repair activities or auto parts to any street or residential district; c. Any facility shall be designed to contain and minimize noise and odors; and d. All facilities shall have a water quality facility (oil/water separator) as part of the water quality design for stormwater runoff, and shall conform to section 18.42.08038.23.080. (Ord. No. 1645, § 18.40.060, 8-15-2005; Ord. No. 1669, § 1, 8-7-2006; Ord. No. 1693, § 12(18.40.060), 2-20- 2007; Ord. No. 1709, § 11(18.40.060), 7-16-2007; Ord. No. 1761, exh. G(18.40.060), 7-6-2009) Sec. 38.22.070. Automobile washing establishment. A. In addition to the requirements to be followed for all convenience uses, the following requirements shall apply to all of the following auto washing establishments as listed below: 1. All detergents must be biodegradable; 2. Building surfaces shall be faced with masonry, brick, stucco, wood or some other permanent looking material; 3. Trash and litter containers shall be emptied daily. In addition, the site shall be patrolled at least once daily in order to remove litter; 4. Sale of automobile accessories such as batteries, tires, gasoline, etc., is prohibited during any period when establishment employees are not present; and 5. Canopies are to be located not closer than ten feet to any side or rear property line. PROOFS Page 604 of 977 Design of the canopy shall architecturally match the design of the main building. All lighting shall meet the lighting standards of this chaptertitle. The maximum height of the canopy shall not exceed 18 feet. All signs must conform to the sign regulations of chapter 18.52, BMCarticle 28 of this chapter. (Ord. No. 1645, § 18.40.070, 8-15-2005; Ord. No. 1693, § 12(18.40.070), 2-20-2007; Ord. No. 1709, § 11(18.40.070), 7-16-2007; Ord. No. 1761, exh. G(18.40.070), 7-6-2009) Sec. 38.22.080. Cemeteries. A. Total site area, including business office and storage building, shall be a minimum of 40 acres, of which at least ten acres shall be subdivided and developed in the initial plot. B. The cemetery may include accessory uses such as a chapel, mortuary, office, mausoleum and those industrial uses which are incidental to the operation of a cemetery. Industrial uses may include such things as the manufacture of burial vaults and headstone foundations, provided all of the products are used on the site and are not offered for sale and use elsewhere. The cemetery shall not include uses of an industrial nature other than those stated in this section. (Ord. No. 1645, § 18.40.080, 8-15-2005; Ord. No. 1693, § 12(18.40.080), 2-20-2007; Ord. No. 1709, § 11(18.40.080), 7-16-2007; Ord. No. 1761, exh. G(18.40.080), 7-6-2009) Sec. 38.22.090. Condominiums. A. Unit ownership act. Condominium developments shall comply with all provisions of the Unit Ownership Act, MCA 70-23-101327 102 et seq., and all regulations adopted pursuant thereto. B. Condominium association. A condominium association shall be established for each condominium development. The developer shall prepare bylaws for the condominium association, as well as covenants, conditions and restrictions for the condominium development, in compliance with Chapter18.72article 38 of this chaptertitle. The bylaws, covenants, conditions and restrictions shall be submitted to the city for review and approval prior to the granting of final site plan approval or approval for condominiumization of existing development. C. Internal circulation in a condominium development shall be designed in accordance with Chapter18.46article 25 of this chapter, and shall, when deemed necessary by the city engineer, comply with section 18.44.02038.24.020. D. Condominiums may be subject to chapter 10, article 17.02, BMC8. (Ord. No. 1645, § 18.40.090, 8-15-2005; Ord. No. 1693, § 12(18.40.090), 2-20-2007; Ord. No. 1709, § 11(18.40.090), 7-16-2007; Ord. No. 1761, exh. G(18.40.090), 7-6-2009) Sec. 38.22.100. Convenience uses and drive-through/drive-in restaurants. A. Architectural guidelines. 1. All convenience uses shall be designed with an architectural and design character that is appropriate for and compatible with the area, and shall also comply with all applicable design standards and guidelines including the design objectives plan for entry way corridors; 2. Use of standardized corporate identification themes integrated into the architectural design is generally not acceptable. Excessive use of such themes may be used as grounds for denial of the project; 327 Note correction of state law cite. Ok. PROOFS Page 605 of 977 3. When located in shopping centers, the architectural character of the building shall be integrated with the design theme of the center through the use of the same building materials, shapes and details. The effect of color in creating a design character that is appropriate for and compatible with the area will be considered. All parking, circulation, driveways, setbacks and signage shall be integrated with the entire design theme of the project; and 4. The elevation design of the building shall provide design character and detailing on all four sides. B. Noise from drive-through speakers shall not be audible from adjacent residential districts. (Ord. No. 1645, § 18.40.100, 8-15-2005; Ord. No. 1693, § 12(18.40.100), 2-20-2007; Ord. No. 1709, § 11(18.40.100), 7-16-2007; Ord. No. 1761, exh. G(18.40.100), 7-6-2009) Sec. 38.22.110. Home-based businesses. A. Generally. A home-based business is a use that is considered accessory to a dwelling unit. Buildings combining live/work arrangements located in districts where both the residential and nonresidential uses to be combined are permitted authorized are not subject to the requirements of this section. B. Home-based business as accessory use. 1. The use shall be clearly incidental and secondary to the use of the dwelling for residential purposes and shall not change the character of the dwelling or adversely affect the uses permitted in the residential district of which it is a part. The home- based business may not be conducted in an accessory structure, and shall comply with the standards of subsection C belowof this section. 2. Purpose. It is in the intent of this section to eliminate as accessory home-based businesses for all uses except those that conform to the standards set forth in this section. In general, an accessory home-based business is a use so located and conducted that the average neighbor, under normal circumstances, would not be aware of its existence with the exception of permitted signage as allowed by chapter 18.52, BMCarticle 28 of this chapter. The standards for home-based businesses included in this section are intended to ensure compatibility with other permitted uses and with the residential character of the neighborhood. A clearly accessory or incidental status in relation to the residential use of the main building is the criteria for determining whether a proposed accessory use qualifies as an of-right home- based business. 3. Necessary conditions for accessory use. Accessory home-based businesses are permitted accessory uses in residential districts only so long as all the following conditions are observed: a. Such home-based business shall be conducted by resident occupants in their residence with not more than one on-premises halftime nonresident employee; b. No more than 25 percent of the gross area of all structures shall be used for such purpose; c. No use shall require internal or external alterations or involve construction features or the use of electrical or mechanical equipment that would change the fire rating of the structure; d. No home-based business shall cause an increase in the use of any one or more PROOFS Page 606 of 977 utilities (water, sewer, garbage, etc.) so that the combined total use for dwelling and home-based business purposes exceeds the average for residences in the neighborhood; e. There shall be no outside storage of any kind related to the home-based business; f. The use may increase vehicular traffic flow and parking by no more than one additional vehicle at a time. Depending on the individual circumstances of each application, an additional off-street parking space may be required; and g. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance to any greater or more frequent extent than that usually experienced in an average residential occupancy in the district in question under normal circumstances wherein no home-based business exists. 4. Notice of intent to operate an accessory home-based business. Any individual applying for a business license, with the intent of operating the business from such person's home, shall acknowledge by signature such person's understanding of the requirements and conditions of this chaptertitle. C. Home-based business as conditional use. 1. Purpose. The use shall be secondary to the use of the lot for residential purposes and shall not be incompatible with the character of the zoning district thereof or adversely affect the principal uses permitted in the residential district of which it is a part. When a home-based business has been established through the CUP process, it means that the owner, lessee or other persons who have a legal right to the use of the dwelling also have the right to conduct the home-based business whether in the principal or an accessory structure. The home-based business shall comply with the standards of subsection C.3 belowof this section. 2. Conditional use. It is the intent of this section to provide, through the conditional use process established in chapterarticle 18.34, BMC19 of this chapter, opportunities for home-based businesses which are more intensive in nature than those which would be allowed as an accessory use. In general, a home-based business approved through the conditional use process is an accessory use which complies with the requirements of this chaptertitle and is subordinate to the primary use of the particular lot for residential purposes. The standards for home-based businesses included in this section are intended to ensure compatibility with other permitted uses and with the residential character of the neighborhood. A secondary, but not incidental, status in relation to the residential use of the main building is the criteria for determining whether a proposed use may, under certain circumstances, qualify as a home-based business which may be approved by the conditional use process. As stated in section 18.34.010, BMC38.19.010, conditional uses start from the presumption that they are incompatible with the zoning district but may under specific and limited conditions become compatible. Unless such conditions are found, there is no right to the practice of a home-based business which does not comply with the terms of an accessory home-based business as listed in this section. 3. Necessary conditions for conditional use. Home-based businesses permitted through the conditional use permit process are allowed in residential districts only so long as all the following conditions are observed: a. Such home-based business shall be conducted by resident occupants with not PROOFS Page 607 of 977 more than one on-premises halftime nonresident employee; b. No more than 30 percent of the gross area of all structures shall be used for such purpose; c. No use shall require internal or external alterations or involve construction features or the use of electrical or mechanical equipment that would change the fire rating of the structure beyond that allowed in a residential use; d. No home base business shall cause an increase in the use of any one or more utilities operated by the city so that the combined total use for dwelling and home-based business purposes exceeds the average for residences in the neighborhood; e. There shall be no outside storage of any kind related to the home-based business; f. No use shall create noise, dust, vibration, smell, smoke, glare, electrical interference, fire hazard or any other hazard or nuisance to any greater or more frequent extent than that allowed by this chaptertitle; g. Home-based business by conditional use permit may only be allowed on lots occupied by single-household detached dwellings; h. Such conditional use shall be subject to all conditions set forth in this chaptertitle, except the provisions of section 18.48.060, BMC38.26.060, Landscape Performance Standards; and i. All permits required by the city, including, but not limited to, building permits and business licenses, shall be received prior to establishing the home-based business. 4. Home-based business allowed through a conditional use permit. Any individual seeking to operate a home-based business, which is greater in scope than that allowed by an accessory home-based business, shall make application for a conditional use permit under the terms of chapterarticle 18.34, BMC19 of this chapter. The planning director shall determine if a home-based business requires a conditional use permit. D. Complaints. Complaints by citizens of Bozemanthe city may be cause for termination of the home-based business. However, should such complaint be filed, the operator is entitled to an appeal to the city commission for a public meeting. The city commission shall determine whether or not the filed complaint identifies sufficient violation of this chaptertitle to warrant termination or modification of the home-based business. E. Uses that are prohibited. The following uses, by the nature of their character or the investment of operation, have a pronounced tendency, once started, to rapidly increase beyond the limits permitted for home-based businesses and thereby impair the use and value of a residentially zoned area for residential purposes. Therefore, the following uses shall not be permitted as home- based businesses: adult businesses; auto repair, minor or major; carpentry work; dance instruction; dental offices; medical offices; medical marijuana not meeting the exclusion in 18.40.220section 38.22.220.A.3; mobile oil and lube services; painting of vehicles, trailers or boats; private schools with organized classes; radio or television repair; and upholstering. F. Appeal to city commission. Any person may appeal the planning director's action relating to a home-based business to the city commission as provided for by chapter18.66, BMCarticle 35 of this chapter. PROOFS Page 608 of 977 (Ord. No. 1645, § 18.40.110, 8-15-2005; Ord. No. 1693, § 12(18.40.110), 2-20-2007; Ord. No. 1709, § 11(18.40.110), 7-16-2007; Ord. No. 1761, exh. G(18.40.110), 7-6-2009; Ord. No. 1786, § 7, 7-26-2010) Sec. 38.22.120. Manufactured home communities. A. Manufactured home communities are included in the state classification of land subdivisions by rent or lease. Therefore, applicants for such developments shall apply for and be reviewed under both site plan and subdivision procedures. These will be reviewed concurrently when appropriate. All standards of this chaptertitle are applicable unless explicitly waived. 1. State of Montana requirements. All manufactured home communities developed under this section shall comply with Montana state department of public health and human services, department of environmental quality and any other applicable state regulations. Prior to final approval for a manufactured home community, copies of approval letters from relevant state agencies shall be submitted or compliance with all applicable regulations shall be certified by a professional civil engineer licensed by the state of Montana. 2. Lot improvements. The location of boundaries of each manufactured home lot for rent or lease shall be clearly and permanently marked on the ground with flush stakes, markers or other suitable means. The location marked must be closely approximate to those depicted on the approved plans. a. Utility hookup. Every manufactured home shall be permanently connected to electric power, water supply, sewage disposal, gas and telephone service lines in compliance with applicable city codes, and all utility distribution and service lines shall be installed underground. b. Permanent foundations and anchoring. All manufactured homes shall be required to be tied or otherwise physically anchored to an approved permanent concrete foundation. Building permits for foundations and anchoring, issued through the city building department in accordance with the adopted International Building Code, are required. The method of anchoring and foundations shall be specified as part of the required preliminary development review. c. Maintenance. (1) There shall be no exposed outdoor storage of furniture (except lawn furniture), household goods, tools, equipment, or building materials or supplies. (2) No manufactured home may be parked on a public or private street for more than 24 hours. (3) An abandoned, burned or wrecked manufactured home must be secured against entry as directed by the fire marshal and may not be kept on a lot for more than 45 days. (4) Each manufactured home must bear an insignia which attests that the construction of the manufactured home meets regulation A 119.1 of the American National Standards Institute (adopted by the U.S. Department of Housing and Urban Development), or be certified as meeting the Mobile Home Construction and Safety Standards of the U.S. Department of Housing and Urban Development. (5) Within 21 days of placement, standard manufactured home skirting of fire-resistive material similar in character to that of the manufactured PROOFS Page 609 of 977 home must be provided around the entire perimeter of the manufactured home between the bottom of the body of the manufactured home and the ground, except where the running gear has been removed and the manufactured home itself is attached directly to the permanent foundation. (6) All required front yards of lots for rent or lease for manufactured homes shall be fully landscaped. (7) All private, commonly owned recreation areas not devoted to buildings, structures, surfaced courts, sand boxes, etc., shall be landscaped and irrigated. d. Manufactured home lots for rent or lease shall be arranged to permit the practical placement and removal of manufactured homes. Every lot for rent or lease must front on a public or private street. 3. Permits and inspections. a. Owner's and agent's responsibility. It shall be the responsibility of the individual property owners or, in the case of a rental community, the managers of the rental community to see that all sections of this article are complied with, including requirements relative to placement of manufactured homes, and all required permits. b. Move-in permit required. All manufactured homes moved into the city must be issued a move-in permit, pursuant to this section, and be inspected by the city building official, prior to gas and electric service being turned on by the servicing utility. A copy of the original sales contract shall be available for permit informational purposes. c. City inspection required. (1) The required inspections for manufactured homes shall include: on- site utilities requirements including gas, electric, sewer and water; setback requirements; and off-street parking requirements. Fees for these have been established by the city commission by resolution. (2) It is unlawful for any person, firm, corporation or agency to turn on, or allow to be turned on, any gas or electric service without an inspection and clearance from the city building official. d. Non-manufactured-home improvements subject to the International Building Code. Permits must be obtained for additions, alterations, canopies, carports, storage areas and detached refrigeration units that were not included in the original sale of the manufactured home unit, fees for which are set by the International Building Code and Uniform International Mechanical Code328. 4. Plans. The preliminary and final plans shall accurately depict: a. All proposed and required landscaping; b. Locations of storage areas for recreational vehicles and other chattels of the residents; c. A layout of typical lots for rent or lease showing the location and dimensions 328 Should "Uniform Mechanical Code" be changed to "International Mechanical Code"? Yes. PROOFS Page 610 of 977 of the lot, manufactured home stand, driveway and parking spaces; d. Mail delivery area; and e. Foundation and anchoring details. 5. A permanent enclosure for temporary storage of garbage, refuse and other waste material shall be provided for every manufactured home space. If trash dumpsters are to be used, they shall be centrally and conveniently located, shall not be located in any front yard, and shall otherwise comply with the requirements of this chaptertitle. 6. Landscaping may be required by the city commission to provide a buffer between manufactured home communities and adjacent uses, and to enhance the appearance of the development. The landscaping may be interspersed with a fence or wall. Specific perimeter landscape/buffering treatments shall be determined on a case-by case basis, with the city considering appropriate factors such as the nature of adjacent uses, noise and proximity to busy streets. 7. Recreation areas. At a minimum, the amount of land required to be dedicated under §18.50.020, BMCsection 38.27.020, shall be reserved as park or recreation area. Recreation areas may include space for community recreation buildings and facilities. 1. Public access through the recreation area may be required, through the provision of a written public access easement, if it is determined by the city commission that public access is necessary to ensure public access through the private recreational area from adjoining properties to nearby or adjacent public parks. 8. Accessory buildings. Accessory buildings for individual dwellings are subject to §18.38.050, BMCsection 38.21.050. (Ord. No. 1645, § 18.40.120, 8-15-2005; Ord. No. 1693, § 12(18.40.120), 2-20-2007; Ord. No. 1709, § 11(18.40.120), 7-16-2007; Ord. No. 1761, exh. G(18.40.120), 7-6-2009) Sec. 38.22.130. Manufactured homes on individual lots. A. Intent. It is the intent of this section to allow manufactured homes, as defined in chapter18.80, BMCarticle 42 of this chapter, in specified zoning districts in which similar single- household dwellings constructed on the site are permitted subject to requirements and procedures set forth herein to ensure acceptable similarity in exterior appearances between such manufactured homes and dwellings that have been or might be constructed under these and other regulations on adjacent lots in the same district or area. It is the intent of this section to permit only those manufactured homes certified as meeting the Mobile Home Construction and Safety Standards of the U.S. Department of Housing and Urban Development. B. Application, material to be supplied. One copy of the application for the proposed manufactured home on the individual building lot shall be submitted to the Building Department in conjunction with the application for a building permit for the building foundation. The application shall include all information as deemed necessary by the planning director to make determinations as to conformity with subsection C of this section, and it shall include a minimum of color photographs of all sides of the manufactured home, of the nearest existing residences or other grounds or buildings on each side of the proposed site, and of existing residences or grounds fronting upon the same street as the proposed site and opposite thereto, and also including those within 150 feet of each corner of the proposed site. As a minimum requirement, it shall also include a description of siding and roofing material in sufficient detail as to make possible determination as to its appearance and durability. PROOFS Page 611 of 977 C. Standards for determination of acceptable similarity in exterior appearance and construction. The following standards shall be used in determinations of acceptable similarity in appearance and construction between manufactured homes with permanent foundations and residences constructed near the site to ensure that such manufactured homes will be compatible in appearance with site built housing that has been or may be constructed in adjacent or nearby locations. 1. No manufactured homes shall have fenestration or other features that will be incompatible in the residential neighborhood. 2. The roof shall have sloping lines with eaves, such as gable, mansard and shed style roofs or shall be compatible with conventionally built homes in the surrounding areas. The pitch of the main roof shall not be less than one foot of rise for each four feet of horizontal run. Minimum distance from eaves to ridge shall be ten feet. 3. The roofing material shall be shake, tile, composition shingle, or other materials commonly found on conventionally built homes in the surrounding areas. 4. The exterior covering material shall be similar or closely compatible to that found on conventionally built residential structures in the surrounding area. Reflection from such exterior shall not be greater than from siding coated with clean, white, gloss, exterior enamel. 5. The exterior covering material shall extend below the top of the foundation. 6. A solid concrete or masonry perimeter foundation shall be used. 7. The exterior covering and roofing materials of the garage, carport and accessory buildings shall be compatible with the materials on the manufactured home. 8. The finished floor shall be a maximum of 24 inches above the exterior finished grade of the lot, or similar to the conventionally built homes in the surrounding area. 9. The manufactured home shall be located on the lot so that the home presents a primary entrance to the principal street frontage. Such primary entrance may be established by the presence of porches, overhanging gables, and similar architectural features consistent with the character of site built homes in the near vicinity. 10. Manufactured homes on permanent foundations shall meet all the property development standards for the zone in which they shall be located. These standards include, but are not limited to, lot area and dimension; area per dwelling unit; front, rear and side yard setbacks; building height, lot coverage, location of accessory buildings; and off-street parking. 11. Manufactured homes located within the neighborhood conservation overlay district shall be subject to review for a certificate of appropriateness under the same standards for architectural compatibility as other homes. 12. Manufactured homes shall be approved for location on individual building lots only if they have been certified as meeting the Mobile Home Construction and Safety Standards of the U.S. Department of Housing and Urban Development. D. Actions by planning director. Upon receipt of an application as required by subsection B of this section, the planning director shall make a decision to approve or disapprove of the application within 15 working days, or hethe planning director may make referral to the city commission. Referrals to the city commission shall be placed on the agenda for its regular meeting. Within five working days after receipt of recommendations from the city commission, the planning director shall make a determination as to conformity with subsection C of this section, notifying PROOFS Page 612 of 977 the applicants of approval or disapproval. In the case of disapproval, the reasons therefore shall be stated in writing. (Ord. No. 1645, § 18.40.130, 8-15-2005; Ord. No. 1693, § 12(18.40.130), 2-20-2007; Ord. No. 1709, § 11(18.40.130), 7-16-2007; Ord. No. 1761, exh. G(18.40.130), 7-6-2009) Sec. 38.22.140. Mini warehouses. A. Minimum site size shall be one acre. B. On-site circulation, drives and parking. 1. Each mini warehouse site shall provide a minimum of two exits; 2. All one-way driveways shall provide for one ten-foot parking lane and one 12-foot travel lane. Traffic direction and parking shall be designated by signing or painting; 3. All two-way driveways shall provide for one ten-foot parking lane and two ten-foot travel lanes; and 4. The parking lanes may be eliminated when the driveway does not serve storage cubicles. (Ord. No. 1645, § 18.40.140, 8-15-2005; Ord. No. 1693, § 12(18.40.140), 2-20-2007; Ord. No. 1709, § 11(18.40.140), 7-16-2007; Ord. No. 1761, exh. G(18.40.140), 7-6-2009) Sec. 38.22.150. Outdoor sales and display. A. Merchandise which is offered for direct sale, rental or lease to the ultimate consumer or user may be displayed beyond the confines of a building in any commercial district, but the area occupied by such outdoor display shall not constitute a greater number of square feet than ten percent of the ground floor area of the building housing the principal use, unless such merchandise is a type customarily displayed outdoors such as automobiles and garden supplies. In such cases, the maximum area for outdoor sales and display shall not exceed 50 percent of the total lot area. B. Outdoor sales and display areas shall not be located in any required yard and is also subject to §18.42.160, BMCsection 38.23.160. (Ord. No. 1645, § 18.40.150, 8-15-2005; Ord. No. 1693, § 12(18.40.150), 2-20-2007; Ord. No. 1709, § 11(18.40.150), 7-16-2007; Ord. No. 1761, exh. G(18.40.150), 7-6-2009) Sec. 38.22.160. Portable carry-out food and beverage buildings. A. A $10,000.00 site bond must be secured on the property. In addition, evidence of liability insurance, with coverage of $1,000,000.00 per occurrence, shall be furnished by the owner. B. Electrical service must be installed underground, in compliance with all electrical service codes, subject to approval by the building department. C. Structures shall not exceed 80 square feet in size. All structures must be on an improved asphalt or concrete surface, be anchored to resist accidental movement, be placed upon approved footings and have a fully electrically bonded frame. No structure shall have an axle. Enclosed trailers must remove the axle, and be secured to resist accidental movement, with all related supports cosmetically covered with an approved material. D. Not more than one portable structure may be placed on a zone lot (individual property or contiguous properties held in common ownership). Portable structures shall be placed in a manner so as not to interfere with normal vehicle and pedestrian circulation patterns or required emergency access. Nor shall such structures be placed in a manner that eliminates or interferes with the use of required parking spaces. E. Requests for special temporary use permits shall be subject to review and must be approved by the appropriate city department representatives, including but not limited to city PROOFS Page 613 of 977 engineer, fire marshal, city building official and planning director. Permit coordination and final issuance shall be by the planning director. A special temporary use permit for portable carry-out food and beverage buildings shall be valid for a period of one year, and may be renewed annually thereafter only if all regulations and requirements are strictly complied with on a continuing basis. F. Operations shall be subject to all licensing requirements of the Gallatin City-County Health Board. Documentation of such licensing, including a copy of plans for water supply and disposal, shall be provided to the planning director prior to permitting. G. The city reserves the right to revoke or terminate this permit at any time by giving 30 days' written notice of such revocation or termination, except that the city may, at its election, revoke or terminate the permit at any time without giving any notice if the owner fails to comply with or abide by each and all of the terms and conditions of the permit. H. Portable food and beverage buildings as described herein shall not be subject to certificate of appropriateness requirements for the neighborhood conservation and entryway corridors overlay districts. (Ord. No. 1645, § 18.40.160, 8-15-2005; Ord. No. 1693, § 12(18.40.160; Ord. No. 1693, § 12(18.40.160), 2-20- 2007); Ord. No. 1709, § 11(18.40.160), 7-16-2007; Ord. No. 1761, exh. G(18.40.160), 7-6-2009) Sec. 38.22.170. Recreational vehicle park and overnight campground. A. Recreational vehicle parks and overnight campgrounds are included in the state classification of land subdivisions by rent or lease. Therefore, applicants for such developments shall apply for and be reviewed under both site plan and subdivision procedures. 1. Recreational vehicle parks shall be screened from view of any adjacent residential development. 2. Internal circulation roads shall be paved with a concrete or asphaltic concrete surface. 3. Individual recreational vehicle parking pads shall be plainly marked and maintained with a dust free surface. 4. Individual recreational vehicle parking pads shall be set back at least 30 feet from the perimeter of the park and 30 feet from any public street right-of-way. 5. Approved trash disposal, bathroom and laundry facilities, including facilities for the handicapped, shall be provided for use of overnight campers. 6. Recreational vehicles spaces shall be separated by no less than 15 feet and shall be no less than 1,500 square feet in area. 7. Land proposed for use for a recreational vehicle park must have an R-S residential suburban district or an RMH residential manufactured home community district zoning designation. Recreational vehicle parks are a principal use in the RMH district and a conditional use in the R-S district. (Ord. No. 1645, § 18.40.170, 8-15-2005; Ord. No. 1693, § 12(18.40.170), 2-20-2007; Ord. No. 1709, § 11(18.40.170), 7-16-2007; Ord. No. 1761, exh. G(18.40.170), 7-6-2009) Sec. 38.22.180. Large-scale retail, size limitations and design and site development guidelines and requirements. A. Purpose. 1. The purpose of this section is to establish general development standards for large scale retail developments. These standards are intended and designed to ensure compatibility of uses; to prevent urban blight, deterioration and decay; and to PROOFS Page 614 of 977 enhance the health, safety and general welfare of the residents living within the city. 2. These standards are also intended to be used as guidelines for evaluating and assessing the quality and design of proposed large scale retail developments. The particulars of any large scale retail developments will be evaluated against their respective standards contained in this chapterarticle. It is expected that the quality and design of the large scale retail developments, while not necessarily complying with the exact standards of this chapterarticle, will meet or exceed the intent behind these standards. 3. Applicability. All uses listed in this chapterarticle shall be subject to the specific standards described for each use, in addition to all other applicable standards which may apply. B. Limitations on size of retail stores. 1. No retail building, utilized by a single tenant, shall exceed 75,000 square feet. 2. Retail development consisting of one or more single-tenant building greater than 40,000 square feet may offer for direct sale to the public merchandise, which is displayed outdoors, but the area occupied by such outdoor sales and storage, exclusive of warehouses, shall not exceed 25 percent of the total square footage of the retail building and shall also comply with §18.40.150, BMCsection 38.22.150. 3. Notwithstanding §18.40.180.subsections B.1 and §18.40.180.B.2, BMCof this section, when an otherwise lawful retail building, in excess of 75,000 square feet, exists as of March 21, 2003, such building shall be considered a development nonconformity. Said building may be continued, structurally altered, repaired or reconstructed so long as it is not increased, extended or enlarged beyond the gross floor area of the building that existed on March 21, 2003. To the extent practicable, the design and site development guidelines of this section shall be applied to any alteration, reconstruction or repair that takes place after March 21, 2003. 4. The following principal uses are exempt, as they pertain to outdoor sales and storage: a. Recreation vehicle sales and auto sales; b. Agricultural implement sales; i.e., tractors, cultivators, balers, etc.; and c. Plant nursery. C. Design and site development guidelines for certain retail developments. 1. Retail development consisting of a single-tenant building greater than 40,000 square feet shall be subject to the design and site development criteria and development standards contained in subsections C.5 and 6 of this section. These guidelines shall be applied as part of the review and approval process for use permits and detailed applications. For developments in the entryway corridor, which are also subject to the design guidelines in chapter18.30, BMCarticle 17 of this chapter, if there is any conflict between the guidelines, the more restrictive guideline shall apply. The guidelines in this section shall not be applied to any development or portion of a development that is covered by an approved use permit as of March 21, 2003, unless modifications to the use permit are proposed by the applicant. 2. Intent and purpose. All new construction of retail buildings described in subsection A of this section will be subject to design review. It is the intent and purpose of this section to ensure the quality of retail development will enhance the impression and PROOFS Page 615 of 977 enjoyment of the community both by guiding development and change that occurs after the adoption date of the ordinance codified infrom which this section is derived, and by stimulating and assisting, in conjunction with other provisions of this chaptertitle, improvements in signage, landscaping, access and other contributing elements of retail development appearance and function. It is further the intent of this section to establish design criteria, standards and review procedures that will allow the city and its advisory boards and agencies to review and direct, in a fair and equitable manner, the development and redevelopment of future and existing properties and facilities governed by this section. The recommendations of the design review board or administrative design review staff shall be given careful consideration in the final action of any agency, board or commission involved in decisions involving retail developments governed by this chapterarticle. 3. The design review board and administrative design review staff shall have the powers and duties provided by this chaptertitle in considering applications subject to this chapterarticle. 4. Certificate of appropriateness. A certificate of appropriateness, received from the city commission, with a recommendation by the design review board, shall be required as a condition of site plan approval for any development governed by this section. Application, review and public notice procedures for proposals governed by this section are set forth in chapter18.76, BMCarticle 40, Noticing, and Chapterarticle 18.34, BMC19, Review Procedures for Site Development, of this chapter. A denial of a certificate shall be accompanied by a written statement of reasons for the denial. 5. Design criteria and development standards. In addition to all other applicable review procedures and design criteria, all development governed by this section shall exceed design criteria and development standards contained in chapter18.30, BMCarticle 17 of this chapter, entryway corridor overlay district, including the general design objectives and guidelines contained in the adopted or updated design objectives plan, regardless of location or zoning district. Said design criteria and development standards shall be exceeded through design practices such as additional architectural detailing, exceptional landscape design, improved public spaces, use of renewable energy and/or recycled construction materials, and provisions for alternative modes of transportation. The city commission shall determine whether established design criteria and development standards have been exceeded based on a recommendation from the design review board. 6. Adaptability for reuse/compartmentalization. The building design shall include specific elements for adaptation for multi-tenant reuse. Such elements may include but are not limited to compartmentalized construction, including plumbing, electrical service, heating, ventilation and air conditioning. The building design shall also allow for: a. The interior subdivision of the structure into separate tenancies; b. Facades that readily adapt to multiple entrances and adapt to entrances on all but one side of the building; c. Parking lot schemes that are shared by establishments or are linked by safe and functional pedestrian connections; d. Landscaping schemes that complement the multiple entrance design; and e. Other elements of design which facilitate the multi-tenant reuse of the PROOFS Page 616 of 977 building and site. 7. Appeals. Appeals may be taken as provided for in chapter18.66, BMCarticle 35 of this chapter. D. Additional criteria and site development guidelines for certain retail developments. 1. Applications for large scale retail development shall include a renewal plan that will afford maximum opportunity, consistent with the sound needs of the municipality as a whole, for the rehabilitation or redevelopment of the structure in the event of closure or relocation by the original occupant. Such plan will be approved if the city commission finds that: a. The plan conforms to the city's growth policy and the requirements of this chaptertitle or parts thereof for the municipality as a whole; b. A sound and adequate plan exists for said redevelopment; c. The plan affords maximum opportunity for rehabilitation or redevelopment of the structure by both private enterprise and the city; and d. The renewal plan provides a maintenance plan for normal repairs and upkeep of property, including but not limited to building, parking lot and surfacing, landscaping, signage and elimination of legible impressions, images, or remnants of signs remaining on a building or sign surface after the use for which the sign was permitted ceases to operate. 2. The city may enter into a development agreement with the owner of the real property and undertake activities, including the acquisition, removal or demolition of structures, improvements or personal property located on the real property, to prepare the property for redevelopment. A development agreement entered into in accordance with this section must contain provisions obligating the owner to redevelop the real property for a specified use consistent with the provisions of this chaptertitle and offering recourse to the city if the redevelopment is not completed as determined by the city. E. Review. The provisions of this section shall be reviewed by the commission in five years and updated as needed. (Ord. No. 1645, § 18.40.180, 8-15-2005; Ord. No. 1693, § 12(18.40.180), 2-20-2007; Ord. No. 1709, § 11(18.40.180), 7-16-2007; Ord. No. 1761, exh. G(18.40.180), 7-6-2009) Sec. 38.22.190. Stable, commercial. A. The minimum property size shall be ten acres. B. Structures or facilities used for stabling, storing, showing or training of animals shall be set back a minimum of 100 feet from any adjacent privately owned property. Dwelling units, accessory structures incidental to dwelling units and irrigated pasturage may occur within the 100-foot setback area subject to the setback requirements of the applicable zoning district. C. There shall be at least a 20-foot yard adjacent to any street. D. There shall be no shows or other activities which would generate more traffic than is normal to a residential area, unless the proposed site has direct access from an arterial street as set forth in the Bozemancity growth policy. Permission for such shows and activities shall be obtained from the city. Notification shall be provided in a letter that explains the nature and duration of the activity, and accommodations for spectators, traffic control and additional parking for cars and trailers. This letter shall be submitted to the planning director at least one month prior to the date of the show or activity. PROOFS Page 617 of 977 E. All pasture and animal storage areas shall be enclosed with fences or walls of a minimum of four feet six inches in height. The design of these enclosures shall be shown on drawings submitted with the conditional use permit application. F. All laws applicable to the public health and appropriate care of animals must be complied with for the entire period of operation of the stable. G. All activity and pasture areas that are not grassed shall be treated for dust control as approved by the planning director. H. Adequate parking for daily activities shall be shown on the site plan and improved to city parking standards. Additional parking, improved as determined by the planning director, shall be provided for shows or other special events. (Ord. No. 1645, § 18.40.190, 8-15-2005; Ord. No. 1693, § 12(18.40.190), 2-20-2007; Ord. No. 1709, § 11(18.40.190), 7-16-2007; Ord. No. 1761, exh. G(18.40.190), 7-6-2009) Sec. 38.22.200. Tennis and racquet club. A. The use will be compatible with any adjacent neighborhood and will not be detrimental to the same due to: 1. Increased automobile traffic; 2. Noise generated from within the site. B. Perimeter fencing of the site may be required, fencing of outdoor courts shall not exceed 16 feet in height, and fencing may be required to be opaque by the planning director or city commission. C. When the club is located within a residential zoning district, there shall be no shows, tournaments or other activity which would generate more traffic than is normal to a residential area, unless access is provided from an arterial street as set forth in the Bozemancity growth policy. If access is not provided from an arterial street, permission for such shows and activities shall be obtained from the city commission. Permission shall be requested in a letter with a site sketch that explains the nature and duration of the activity and accommodations for spectators, additional parking and traffic control. This letter shall be submitted to the city clerk of the commission for city commission consideration. D. There shall be a landscaped 50-foot buffer strip adjacent to any residential zoning district, or as otherwise determined by the ADR or DRB. E. Hours of operation may be controlled by the city commission. (Ord. No. 1645, § 18.40.200, 8-15-2005; Ord. No. 1693, § 12(18.40.200), 2-20-2007; Ord. No. 1709, § 11(18.40.200), 7-16-2007; Ord. No. 1761, exh. G(18.40.200), 7-6-2009) Sec. 38.22.210. Community center. A. Within residential districts, there shall be public street access onto an arterial or collector standard street within 600 feet of the entrance to a community center site. B. Community centers located within residential districts shall, when any individual structure exceeds 5,000 square feet in gross floor area or exceeds the district's allowed maximum height, provide a 20 foot landscaped yard between the building and adjacent residential uses. A structure separated from the adjacent residential uses by a parking lot, public street, watercourse, public open space, or similar separation is exempt from the additional yard width requirement. C. Each community center site with more than 40 parking spaces shall provide a minimum of two ingress/egress points which comply with section 18.44.09038.24.090. PROOFS Page 618 of 977 (Ord. No. 1693, § 12(18.40.200), 2-20-2007; Ord. No. 1709, § 11(18.40.210), 7-16-2007; Ord. No. 1761, exh. G(18.40.210), 7-6-2009) Sec. 38.22.220. Medical marijuana. A. Any activity involving medical marijuana must meet all requirements of state law including, but not limited to, the standards of title 50, chapter 46, Montana Code Annotated (MCA 50-46-101 et seq.), and limits on possession, clean air, etc., and any applicable administrative rules established by the state. Should such rules or laws change, any medical marijuana facility shall immediately begin any required process to come into compliance with the new rules. This includes submittal for review of applications to the city as they may relate to zoning, business licensing, or other municipal programs. Compliance with city of Bozeman zoning regulations does not shield any person, corporation, or other legal entity from the requirements of, or enforcement by, other governing entities, or from civil liabilities. 1. Unless specifically exempted, any person or an existing or proposed entity intending to conduct activities which meet the definitions of "agriculture," "manufacturing," "office" or "retail" as established in chapter18.80article 42 of this chapter which is for the purpose of growing, processing, distribution, and/or any other activity related to medical marijuana shall in addition to this section, comply with all other provisions of the Bozemanthis Municipal Code, and shall not be located within 1,000 linear feet of the exterior property line of: a. All schools or facilities owned or operated by Bozeman School District 7 whether located inside or outside the city limits; or b. All private schools, not including home schools, whether located inside or outside the city limits, which provide instruction in the class range from kindergarten to 12th grade and which are either subject to MCA 20-5-109, or listed as a kindergarten provider by the Gallatin county superintendent of schools. c. For purposes of this section, specified distances will be measured in a straight line, without regard to intervening structures from the property line of a school as stated in subsections 1a and b of this section, regardless of whether those schools are located within the jurisdictional limits of the city, to the property lien of the business providing medical marijuana. 2. Any activities meeting the definitions of "agriculture," "manufacturing," "office" or "retail" as established in chapter18.80article 42 of this chapter which is for the purpose of growing, processing, distribution, and/or any other activity related to medical marijuana may not be located in the R-4 residential high density district and the R-O residential office district when it overlays a residentially oriented growth policy designation; or within the core area of the B-3 district as defined in 18.18.010section 38.10.010.A.3, BMC. 3. The requirements of subsections 1 and 2 of this section do not apply to: a. An individual registered qualifying patient who possesses marijuana in accordance with the limits and requirements of title 50, chapter 46, Montana Code Annotated (MCA 50-46-101 et seq.) solely for that qualifying patient's own use; or b. To a caregiver providing care to not more than two qualifying patients who reside within the same dwelling as the caregiver. The caregiver and qualifying patients shall maintain appropriate state agency qualification at all times that medical marijuana is present. PROOFS Page 619 of 977 4. Establishing a medical marijuana facility may result in a change in the designation of building code occupancy type. A change in use or occupancy type may require physical modifications to the structure which must be approved by the building division prior to any construction as required by section 18.64.100, BMC38.34.100. 5. Air discharge control. Any medical marijuana growing or processing operation that contains 24 or more marijuana plants at any one time shall provide a forced air vent discharge point that is: a. Located no closer than 30 feet from an adjacent property line or a residence; or b. Provides a mechanical filtration system to control discharges of particulates and odors. The ventilation filtration system shall be designed by a mechanical engineer licensed to practice in the state of Montana such that odors and particulates may not be detected by unaided human observation at the property boundary, and noise produced by the system shall be controlled and minimized. 6. Any person making application for a zoning approval for a medical marijuana business shall provide evidence of DPHHS approval as a caregiver at the time of application and shall maintain such DPHHS approval at all times. Failure to maintain approval immediately suspends zoning approval to operate a medical marijuana business in the city. 7. These regulations are for review of applications to the city and do not restrict property owners from establishing more stringent standards for their properties. (Ord. No. 1786, § 8(18.40.220), 7-26-2010) Chapter 18.42. Development Standards ARTICLE 23. DEVELOPMENT STANDARDS Sec. 38.23.010. General standards. A. Conformance. The design and development of all land uses shall conform to this chaptertitle, adopted growth policies, any relevant adopted neighborhood or subarea plan, and other resolutions and regulations, including any and all amendments thereto. B. Natural environment. The design and development of all land uses shall be properly related to topography, and should, to the extent possible, preserve the natural terrain, natural drainage, existing topsoil, trees and other existing vegetation. C. Lands unsuitable for development. Land which the planning director or city commission has found to be unsuitable for development because of potential hazards such as flooding, land slides, excessive slope, rock falls, subsidence, high water table, presence of wetlands; or because of unreasonable burdens on the general public such as requirements for the excessive expenditure of public funds, environmental degradation, or congestion in the streets or roads shall not be used for building or residential purposes unless the hazards or excessive public burdens are eliminated or will be overcome by appropriate design and construction plans. Slopes of 25 percent or greater shall be presumed unbuildable unless provided otherwise by the developer. (Ord. No. 1645, § 18.42.010, 8-15-2005; Ord. No. 1693, § 13(18.42.010), 2-20-2007; Ord. No. 1709, § 12(18.42.010), 7-16-2007; Ord. No. 1761, exh. H(18.42.010), 7-6-2009; Ord. No. 1769, exh. G(18.42.010), 12- 28-2009) PROOFS Page 620 of 977 Sec. 38.23.020. Neighborhood centers. A. To provide a neighborhood focal point, all residential subdivisions or planned unit developments, that are ten net acres in size or greater, shall have a neighborhood center. Developments may be exempted from this requirement if every lot within the development is within one-half mile of an existing neighborhood center. Generally, the center shall be no less than one acre in size. The center shall be comprised of a park, square, green, plaza, transit stop, neighborhood commercial center, civic use or any combination of these. The following requirements shall apply to all neighborhood centers: 1. The geographic center point of the neighborhood center shall be no further than 600 feet from the geographic center point of the development. This requirement may be waived in the following circumstances: a. The development would create parcels that are all nonresidential; b. The center is a neighborhood commercial center or is adjacent to a neighborhood commercial center; c. The site is constrained by the presence of critical lands; d. The site is part of an approved subarea plan that shows the center in a different location; or e. The topography of the site presents physical constraints on the property. 2. With the exception of civic and neighborhood commercial center uses, the developer shall be responsible for installing all center-related improvements as part of the required development improvements. Improvements shall be installed with each phase when a multi-phase project is developed. Required improvements shall be based on the definition of each feature found in chapter18.80, BMCarticle 42 of this chapter, and/or city standards. 3. The neighborhood center shall have frontage along 100 percent of its perimeter on public or private streets or roads. The city may consider and approve the installation of streets along less than 100 percent, but not less than 50 percent, of the perimeter in accordance with section 18.50.06038.27.060. 4. With the exception of civic and neighborhood commercial center buildings and grounds, the center shall be considered a common area to be owned and maintained by the property owners or a property owners association. The property owners association could establish an improvement district to collect assessments to pay for the maintenance. 5. Areas within neighborhood centers used for park, square, green and/or square, that meet the following criteria, may count towards park land dedication requirements subject to review and approval by the city commission, after receiving a recommendation from the city recreation and parks advisory board: a. The area is predominantly open space with enhanced natural features, but may contain amenities such as sidewalks, seating, drinking and ornamental fountains and public art; and b. The area provides active and/or passive recreation opportunities. 6. The neighborhood center may be used for limited stormwater retention/detention facilities if reviewed and approved by the city engineer. However, any part of the center used for stormwater management shall not count towards park dedication requirements. PROOFS Page 621 of 977 (Ord. No. 1645, § 18.42.020, 8-15-2005; Ord. No. 1693, § 13(18.42.020), 2-20-2007; Ord. No. 1709, § 12(18.42.020), 7-16-2007; Ord. No. 1761, exh. H(18.42.020), 7-6-2009; Ord. No. 1769, exh. G(18.42.020), 12- 28-2009) Sec. 38.23.030. Lot. A. Dimensions and orientation. Lot size, width, shape and orientation shall be appropriate for the location and contemplated use of the development. In residential developments, a variety of lot sizes shall be provided to facilitate housing diversity and choice, and to meet the projected requirements of people with different housing needs. Lot designs with irregular shapes, narrow necks, points and flag shapes shall be permitted only when the developer can demonstrate that the proposed lot designs are necessary due to topography or other physical constraints. Each lot shall contain a satisfactory building site adequate for the uses permitted in its zoning district. Each lot shall conform to this chaptertitle, any growth policies, any relevant neighborhood or subarea plan, where officially adopted, and to any applicable regulations of the Montanastate department of environmental quality. B. Division by rights-of-way. No single lot shall be divided by a public street, alley, or public or private utility right-of-way or easement, which would reduce the amount of buildable land to less than the minimum lot size required by this chaptertitle for the applicable zoning district. C. Double/through and reverse frontage. Double/through frontage and reverse frontage lots shall be avoided except where essential to provide separation of residential development from arterial streets; to provide access to development adjacent to limited access streets; to overcome topography or other physical conditions; or to overcome specific disadvantages of existing design and orientation. Lots fronting on a street and an alley shall not be considered double/through or reverse frontage lots. D. Corner lots. Corner lots shall have sufficient width to permit appropriate building setbacks from both streets and provide acceptable visibility for traffic safety. 1. Generally, homes on corner lots shall have the same orientation as homes on lots on the interior of the block, unless otherwise approved through an overall development plan. Covenants shall contain information regarding the orientation for all corner lots. E. Width. Lots shall have a width sufficient to allow normal construction without the construction encroaching on property lines, and shall comply with the building setback requirements of this chaptertitle. F. Depth. Except for individual lots for individual townhomes, lots used to meet the requirements of chapter 10, article 17.02, BMC8, and for modular lots as allowed by subsection 18.42.030.K of this section, no lot shall have an average depth greater than three times its average width. G. Side lot lines. Side lot lines shall be at substantially right angles to street or road lines and radial to curved street or road lines. H. Frontage. Unless otherwise allowed by this chaptertitle, all lots will have frontage in compliance with §18.44.090section 38.24.090.B, BMC to provide, among other things, adequate room for snow removal, lot access and utility easements. I. Civic uses. If lots are reserved or identified for civic uses, these lots must be prominent sites at the termination of street vistas, or in the neighborhood center. J. Exceptions. Commonly owned lots used for accessory uses (i.e., stormwater management, open space, utilities) are exempt from the provisions of this section. PROOFS Page 622 of 977 (Ord. No. 1645, § 18.42.030, 8-15-2005; Ord. No. 1693, § 13(18.42.030), 2-20-2007; Ord. No. 1709, § 12(18.42.030), 7-16-2007; Ord. No. 1761, exh. H(18.42.030), 7-6-2009; Ord. No. 1769, exh. G(18.42.030), 12- 28-2009) Sec. 38.23.040. Blocks. A. Size and orientation. Blocks shall be designed to ensure a high level of multimodal connectivity, traffic safety, and ease of traffic control and circulation; to accommodate the special needs of the use contemplated; and to take advantage of the limitations and opportunities of the topography. B. Block length. Block length shall not be designed, unless otherwise impractical, to be more than 400 feet in length or less than 300 feet in length. Block lengths can be longer than 400 feet if necessary due to topography, the presence of critical lands, access control, or adjacency to existing parks or open space. In no case shall a block exceed 1,320 feet in length. C. Block width. Blocks shall not be less than 200 feet or more than 400 feet in width, except where essential to provide separation of residential development from a traffic arterial or to overcome specific disadvantages of topography and orientation. D. Rights-of-way for pedestrians. Rights-of-way for pedestrian walks, not less than ten feet wide, shall be required where deemed necessary to provide circulation or access to parks, open space, schools, playgrounds, shopping centers, transportation, and other community facilities. In addition, no continuous length of block shall exceed 600 feet without intersecting a street or pedestrian walk. Pedestrian walks shall also be installed at the end of culs-de-sac where deemed appropriate. 1. Yards adjacent to pedestrian rights-of-way less than 30 feet wide shall be treated as corner side yards. Yards adjacent to pedestrian rights-of-way 30 feet wide or greater shall be treated as side yards; 2. The pedestrian walks shall be maintained by the adjacent property owner or by the property owners association. The party responsible for maintenance of pedestrian walks shall be identified in the preliminary plat application; and 3. Pedestrian walks shall be constructed as a city standard sidewalk, and the provisions of section 18.44.080, BMC38.24.080 shall apply. E. Developments which have clearly delineated blocks shall use block numbers or letters, and each block shall contain its own grouping of lot numbers. (Ord. No. 1645, § 18.42.040, 8-15-2005; Ord. No. 1693, § 13(18.42.040), 2-20-2007; Ord. No. 1709, § 12(18.42.040), 7-16-2007; Ord. No. 1761, exh. H(18.42.040), 7-6-2009; Ord. No. 1769, exh. G(18.42.040), 12- 28-2009) Sec. 38.23.050. Utilities. A. Utilities shall be placed underground, wherever technically and economically feasible. Underground utilities, if placed in a street right-of-way, shall be installed after the street has been brought to grade and before it is surfaced. B. If overhead utility lines are used, they shall be located at the rear property line. C. Utility facilities shall be designed by utility firms in cooperation with the developer. The facilities are subject to all applicable laws, rules and regulations of the appropriate regulatory authorities. D. The developer shall provide adequate and appropriate utility easements in compliance with §18.42.060section 38.23.060. PROOFS Page 623 of 977 (Ord. No. 1645, § 18.42.050, 8-15-2005; Ord. No. 1693, § 13(18.42.050), 2-20-2007; Ord. No. 1709, § 12(18.42.050), 7-16-2007; Ord. No. 1761, exh. H(18.42.050), 7-6-2009; Ord. No. 1769, exh. G(18.42.050), 12- 28-2009) Sec. 38.23.060. Easements. A. Required easements. Where determined to be necessary, public and/or private easements shall be provided for private and public utilities, drainage, vehicular or pedestrian access, etc. 1. In subdivisions, all easements shall be described, dimensioned and shown on the final plat in their true and correct location. 2. In all other developments, the proper easements documents shall be prepared for review and approval by the city, and filed at the county clerk and recorder's office. The easement documents shall be accompanied by an exhibit indicating the dimensions, and true and correct location, of all easements. 3. No lot shall be encumbered by a public or private utility easement in a way that would decrease the amount of buildable land to less than the area required by this chaptertitle for the applicable zoning district. B. Private utility easements. Private utilities include, but are not limited to, natural gas, electricity, telephone, cable and fiber optic lines. The developer shall provide private utility easements necessary to extend private utilities to the development, and to provide for the construction and maintenance of private utilities within the development. 1. General. a. Building setbacks shall be coordinated with all provided utility easements. If a utility easement will be greater than the building setback required by this chaptertitle, a note to that effect shall be placed on the final plat and/or final site plan as appropriate. b. Where a utility easement is to be located in an existing, dedicated right-of- way, an encroachment permit must be obtained from the local or state street or road department having jurisdiction. c. If placed in a city right-of-way, easements shall be in a location required by and agreed upon in writing by all of the appropriate utility companies and the city commission. 2. Easement size. a. Front yard utility easements. Front yard utility easements shall be ten feet wide, and shall always be provided unless written confirmation is submitted to the planning department from all utility companies providing service indicating that front yard easements are not needed. b. Rear yard utility easements. The provision of rear yard utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, rear yard utility easements on each lot shall be six feet wide if adjacent to a public alley and ten feet if not adjacent to a public alley. c. Side yard utility easements. The provision of side yard utility easements is not mandatory unless they are required by any or all of the utility companies to adequately serve the development. If provided, the width of the side yard utility easement shall be determined on a case-by-case basis based on the needs of the utility companies. PROOFS Page 624 of 977 3. Private utility plans. a. When the concurrent construction option will be used, based on the provisions of section 18.74.03038.39.030.D, BMC, private utility plans shall be included with the preliminary PUD submittal. b. Private utility plans shall be provided with any plans and specifications submittals for the construction of new water, sewer or street infrastructure as specified in the city's design standards and specifications policy. 4. No building shall be constructed that encroaches on a private utility easement unless written approval from all utility companies is provided to the planning department. C. Public utility easements. Public utilities include water, sewer and stormwater facilities that are dedicated to and maintained by the city. 1. A public utility easement shall be granted for all public utility mains not located within public street right-of-way. An easement shall be at least 30 feet wide for either one or two utility mains. An additional ten feet of width is required for each additional main that occupies the easement. Wider easements may be required at the discretion of the city for large utility lines. 2. Public utility easements shall be provided for all meter pits and fire hydrants maintained by the city. 3. No permanent structures shall be placed within public utility easements unless an encroachment permit has been obtained from the city. D. Easements for agricultural water user facilities. 1. Except as noted in subsection D.2 of this section, the developer shall establish appropriate irrigation facility easements that: a. Are in locations of appropriate topographic characteristics and sufficient width to allow the physical placement and unobstructed maintenance of active open ditches or below ground pipelines. The easement shall facilitate the delivery of water for irrigation to persons and lands legally entitled to the water under an appropriated water right or permit of an irrigation district or other private or public entity formed to provide for the use of the water right; (1) The easements shall ensure the conveyance of irrigation water through the land to be developed to lands adjacent to or beyond the development's boundaries in quantities and in a manner that are consistent with historic and legal rights; and (2) A minimum easement width of ten feet is required on each side of irrigation canals and ditches. b. Are a sufficient distance from the centerline of the irrigation facility to allow for construction, repair, maintenance and inspection of the ditch or pipeline; and c. Prohibit the placement of structures or the planting of vegetation other than grass within the irrigation facility easement without the written permission of the facility owner. 2. The developer need not establish irrigation facility easements as provided above if the following provisions were met or will be met via the subdivision process: a. The average lot size is one acre or less and the subdivider provides for PROOFS Page 625 of 977 disclosure, in a manner acceptable to the city commission, that adequately notifies potential buyers of lots that are classified as irrigated land and may continue to be assessed for irrigation water delivery even though the water may not be deliverable; or b. The water rights are removed or the process has been initiated to remove the water rights from the subdivided land. If the water rights have been or will be removed from the land within the development it shall be denoted on the preliminary plat. If removal of water rights is not complete upon filing of the final plat, the subdivider shall provide written notification to prospective buyers of the intent to remove the water right and shall document that intent, when applicable, in agreements and legal documents for related sales transactions. 3. The realignment or relocation of active irrigation ditches or pipelines is discouraged. If an irrigation facility or points of diversions thereon are proposed to be realigned or relocated, the developer's professional engineer shall certify, prior to final plat or final plan approval, that the water entering and exiting the realigned or relocated irrigation facility is the same quality and amount of water that entered or exited the facility prior to realignment or relocation. 4. Stormwater from a development shall not be discharged to an irrigation facility. 5. As land is converted from agricultural to urban uses, and irrigation ditches are no longer in use, the ditches shall be abandoned and filled. E. Other easements. Public access easements for streets and trails shall be provided in accordance with the provisions of chapterarticles 18.4424 and 18.50, BMC27 of this chapter. (Ord. No. 1645, § 18.42.060, 8-15-2005; Ord. No. 1693, § 13(18.42.060), 2-20-2007; Ord. No. 1709, § 12(18.42.060), 7-16-2007; Ord. No. 1761, exh. H(18.42.060), 7-6-2009; Ord. No. 1769, exh. G(18.42.060), 12- 28-2009) Sec. 38.23.070. Municipal water, sanitary sewer and storm sewer systems. A. General. All municipal water supply, sanitary sewer and storm sewer system facilities shall comply with the following requirements: 1. The developer shall install complete municipal water and sanitary sewer system facilities, or a system allowed by section 18.38.03038.21.030.D, and may be required by the city to install municipal storm sewer system facilities. These systems shall be installed in accordance with the requirements of the state department of environmental quality and the city, and shall conform with any applicable facilities plan. The city's requirements are contained in the Design Standards and Specifications Policy and the City of Bozeman Modifications to Montana Public Works Standard Specifications, and by this reference these standards are incorporated into and made a part of these regulations. The developer shall submit plans and specifications for the proposed facilities to the city and to the state department of environmental quality and shall obtain their approvals prior to commencing construction of any municipal water, sanitary sewer or storm sewer system facilities. 2. The cutting of any city street shall be done in compliance with the city's street cut policy. 3. When a proposed development adjoins undeveloped land, and municipal infrastructure mains would reasonably pass through the new development to the undeveloped land, municipal infrastructure mains shall be arranged to allow the PROOFS Page 626 of 977 suitable development of the adjoining undeveloped land. Municipal infrastructure mains within the proposed development shall be constructed to the boundary lines of the tract to be developed, unless prevented by topography or other physical conditions. An exception to this standard may be granted by the director of public services or the director's designee upon written request of the applicant, if the applicant demonstrates during the development review process that more efficient design can be accomplished without jeopardizing the public's health, safety and welfare, the intent of this title chapter, or the intent of the city's growth policy, in which case a subdivision variance must be approved by the city commission. B. Municipal water supply system; additional requirements. Municipal water supply system facilities shall also apply comply with the following requirements: 1. When the city's municipal water main is extended, the length of a dead-end water main typically shall not exceed 500 feet in length, unless approved in writing by the city engineer and the water and sewer superintendent. 2. The length of service lines from the main to the structure may not exceed 150 feet in length, unless approved in writing by the city engineer and water and sewer superintendent. (Ord. No. 1645, § 18.42.070, 8-15-2005; Ord. No. 1693, § 13(18.42.070), 2-20-2007; Ord. No. 1709, § 12(18.42.070), 7-16-2007; Ord. No. 1761, exh. H(18.42.070), 7-6-2009; Ord. No. 1769, exh. G(18.42.070), 12- 28-2009; Ord. No. 1796, § 1, 1-3-2011) Sec. 38.23.080. Grading and drainage. A. The developer shall install complete drainage facilities in accordance with the requirements of the state department of environmental quality and the city, and shall conform to any applicable facilities plan and the terms of any approved site specific stormwater control plan. The city's requirements are contained in the design standards and specifications policy and the city modifications to Montanastate public works standard specifications, and by this reference these standards are incorporated into and made a part of these regulations. The developer shall submit plans and specifications to the city and to the state department of environmental quality (if applicable), and shall obtain their approvals prior to commencing construction of any drainage system facilities. B. Provisions shall be made for the control and drainage of surface water around buildings. Generally, all lots and street boulevard areas shall be graded no lower than the back of curb or level of street, whichever is applicable, prior to final plat or final occupancy approval as appropriate. Exceptions may be granted by the city engineer when adequate drainage facilities are provided. All drainage plans shall comply with the requirements of the International Building Code and International Residential Code as adopted by the city, and by this reference these standards are incorporated into and made a part of these regulations. C. Drainage systems shall not discharge into any sanitary sewer facility or agricultural water user facility. D. Stormwater retention or detention ponds may be located within public park land, but such areas shall not count towards the park land dedication requirement. Any stormwater ponds located on park land shall be designed, constructed and/or added to so as to be conducive to the normal use and maintenance of the park. Stormwater ponds serving multiple lots in separate ownership shall not be located on private lots or public right-of-way. Stormwater retention or detention ponds shall be maintained by the property owners association. E. The city may require the developer to establish easements or other perpetual controls to prevent encroachment or disruption of drainageways or facilities. PROOFS Page 627 of 977 F. Stormwater facilities shall generally not occupy more than one-third of a required front yard. G. All finish grades in landscaped areas shall comply with the provisions set forth in section 18.48.05038.26.050.L, BMC. H. Stormwater retention/detention facilities in landscaped areas shall be designed as landscape amenities. They shall be an organic feature with a natural, curvilinear shape. The facilities shall have 75 percent of surface area covered with live vegetation appropriate for the depth and design of the retention/detention facility, and be lined with native grasses, indigenous plants, wet root tolerant plant types and groupings of boulders to create a functional yet, natural site feature. A cross section and landscape detail of each facility shall be submitted with the final landscape plan for review and approval. Facilities with a slope up to and including ten percent grade may be grassed and irrigated to blend into the adjacent landscaped area. (Ord. No. 1645, § 18.42.080, 8-15-2005; Ord. No. 1693, § 13(18.42.080), 2-20-2007; Ord. No. 1709, § 12(18.42.080), 7-16-2007; Ord. No. 1761, exh. H(18.42.080), 7-6-2009; Ord. No. 1769, exh. G(18.42.080), 12- 28-2009) Sec. 38.23.090. Fire protection requirements. A. All developments shall be planned, designed, constructed and maintained so as to minimize risk of fire and to permit the effective and efficient suppression of fires in order to protect persons and property. 1. The placement of structures shall minimize the potential for flame spread and permit adequate access for firefighting equipment; and 2. Adequate firefighting facilities shall be provided, including an adequate and accessible water supply and water distribution system. a. National Fire Protection Association (NFPA) standards for hydrant systems shall be met. b. City of Bozeman's requirements as contained in the design standards and specifications policy and the city modifications to Montanastate public works standard specifications shall apply. (Ord. No. 1645, § 18.42.090, 8-15-2005; Ord. No. 1693, § 13(18.42.090), 2-20-2007; Ord. No. 1709, § 12(18.42.090), 7-16-2007; Ord. No. 1761, exh. H(18.42.090), 7-6-2009; Ord. No. 1769, exh. G(18.42.090), 12- 28-2009) Sec. 38.23.100. Watercourse setback. A. Where a development is crossed by or is adjacent to a watercourse, the developer shall mitigate the impacts of the development on the watercourse. This mitigation may not be less restrictive than the requirements of the Bozemancity floodplain regulations or any other applicable regulation of this chaptertitle. The purpose of this mitigation is bank stabilization; sediment, nutrient and pollution removal; and flood control. 1. Setback for developments granted preliminary plan or plat approval prior to July 10, 2002. These provisions shall apply to all developments granted preliminary plan or plat approval prior to July 10, 2002, including applicable subdivision exemptions: a. Setbacks. A minimum 100-foot setback shall be provided along both sides of the East Gallatin River. A minimum 35-foot setback shall be provided along both sides of all other watercourses. (1) A portion of the required setback, immediately adjacent to the ordinary high water mark, shall be left in a natural vegetative state as PROOFS Page 628 of 977 follows: (a) East Gallatin River -- 50 feet. (b) Other watercourses -- five feet. (2) No fence, residential or commercial structure, fill material, parking or other similar improvements shall be located within required watercourse setbacks. (3) All watercourse setbacks shall be measured from the ordinary high water mark as defined in section 18.80.2160, BMC38.42.2200. When no ordinary high water mark is discernible, setbacks shall be measured from the top of the streambank. 2. Setbacks for developments granted preliminary plan or plat approval on or after July 10, 2002. These provisions shall apply to all developments granted preliminary plat or plan approval on or after July 10, 2002. a. In the event a site with an existing development, that is subject to §18.42.100subsection 1, BMC of this section, is submitted to the city for a review subject to Chapterarticles 18.3419, 18.3620 and 18.60, BMC32 of this chapter after July 10, 2002, the proposed development shall comply with §18.42.100this subsection 2, BMC to the extent reasonably feasible given the existing site conditions. The final approval body for the proposed development shall determine the extent that is reasonably feasible, subject to any appeal provisions that may apply. Such administrative relief shall not reduce setbacks below those provided for in subsection 1 of this section. It is the intent of this subsection 2 that full compliance with the terms of this subsection 18.42.100 2, BMC shall be achieved over time without unduly burdening existing development. b. In addition to any relaxation of watercourse setbacks provided by subsection 18.42.100.2.a of this section, nothing in this section shall prohibit an owner of affected property from: (1) Applying for a variance to dimensional standards of the watercourse setbacks as allowed by and subject to the requirements of chapter18.66, BMCarticle 35 of this chapter; (2) When applicable, seeking a deviation to dimensional standards of the watercourse setback as allowed by and subject to the requirements of chapterarticles 18.2816, 18.3017 or 18.36, BMC20 of this chapter; (3) Combining two or more lots to assemble a larger and more usable parcel; (4) Petitioning the Montanastate department of fish, wildlife and parks and the Gallatin county water conservation district to seek the reclassification of the relevant watercourse as an irrigation facility not subject to the requirements of this section; (5) After receipt of required permits relocating the watercourse; or (6) Pursuing any other lawful means of relief from the effects of this section. c. Setbacks. Unless otherwise specified in subsection 18.42.100.B.5, BMC2.e of this section, the following setback requirements shall be met: PROOFS Page 629 of 977 (1) East Gallatin River. A minimum 100-foot setback shall be provided along both sides of the East Gallatin River. (2) Sourdough/Bozeman Creek and Bridger Creek. A minimum 75-foot setback shall be provided along both sides of Sourdough/Bozeman and Bridger Creeks. (3) Other watercourses. A minimum 50-foot setback shall be provided along both sides of all other watercourses. (4) All required watercourse setbacks shall be extended as necessary to address these additional requirements. (a) The setback shall extend to the edge of any delineated 100-year floodplain if the floodplain is larger than the setbacks established in this subsection 18.42.100.B.3, BMC2.c; (b) The setback shall include immediately adjacent wetlands (i.e., fringe). The buffer width shall be extended by the width of the wetland; (c) Areas with a slope greater than 33 percent do not count towards the width of the setback; and (d) The setback shall include connected wetlands. The buffer width shall be extended by a minimum of 50 feet beyond the perimeter of the connected wetlands. (5) All watercourse setbacks shall be measured from the ordinary high water mark as defined in section 18.80.2160, BMC38.42.2200. When no ordinary high water mark is discernible, setbacks shall be measured from the top of the streambank. d. No newly constructed residential or commercial structure, addition to an existing structure, fence, deck, fill material (other than that required for exempt uses), parking lot or other impervious surfaces, or other similar improvements shall be located within required watercourse setbacks, unless approved through, and in conformance with, a variance or deviation process as authorized in this chaptertitle. e. Exceptions. The watercourse setback is divided into two zones. Zone 1 consists of the 60 percent of the setback closest to the watercourse, and Zone 2 consists of the 40 percent of the setback furthest from the watercourse. (1) On-site stormwater treatment facilities may be located in Zone 2. (2) Trails and trail-related improvements may be placed within the required watercourse setback subject to the following provisions: (a) Trails, and trail-related improvements such as benches and trail signage, may be placed in Zone 2; (b) Limited, non-looping developed spur trails to the water's edge may cross all zones. Benches and limited informational/interpretive signage may be placed in Zone 1 at the terminus of spur trails; (c) Due to topography, avoidance of wetlands, or other geographical constraints portions of non-spur trails may need to be placed within Zone 1. Trail construction within Zone 1, PROOFS Page 630 of 977 inclusive of watercourse crossings and spur trails, per each side of the watercourse may not exceed the length of 300 percent of the width of the applicable watercourse setback per 500 lineal feet of watercourse; (d) All trails must be constructed to minimize bank instability, sedimentation, nutrient and pollution runoff. Trails shall be aligned to minimize damage to plant and wildlife habitat; and (e) Trails crossing the watercourse and trail-related bridge structures may be located within all zones provided that the appropriate local, state and federal permits are obtained. (3) Streets, sidewalks, utility lines or similar public construction may be permitted within all zones for the purpose of crossing a watercourse or protecting public health and safety. The following practices shall be observed: (a) Crossings shall be minimized to the greatest extent feasible; (b) Crossings with direct angles (90 degrees) shall be used to the greatest extent feasible instead of oblique crossing angles; (c) Construction shall be capable of withstanding 100-year flood events; (d) The subdivision grading and drainage plan shall be designed to prevent the discharge of untreated stormwater into a watercourse; and (e) A bank stabilization plan for all public construction watercourse crossings shall be prepared and approved by the city prior to site preparation and installation of the improvement. (4) Outlets from stormwater treatment facilities may pass through all zones in order to discharge to the receiving watercourse, provided that all required permits are obtained. (5) Control of noxious weeds is required and activities required within limits outlined in any approved noxious weed control plan may occur in all zones. f. Setback planting. A setback planting plan shall be prepared by a qualified landscape professional, and shall be reviewed and approved by the planning department prior to the commencement of development or site preparation. The plan shall include a schedule, and plantings shall be depicted on the plan as follows: (1) Zone 1: Zone 1 shall be planted with new or existing native materials suited for a riparian area based on the following calculations. One hundred percent of the disturbed areas of Zone 1 shall be planted with a ground cover of native riparian sedges, forbs and grasses suited for the area. In addition, a minimum of one shrub for every ten linear feet and one tree for every 30 linear feet of the watercourse shall be required along each side of the watercourse. Grouping or clumping of trees and shrubs as appropriate in a riparian area is encouraged. Species that are appropriate to the soil hydrologic conditions (wetness PROOFS Page 631 of 977 of soil and depth to the water table) should be used. Tree and shrub species selected shall be suitable for the climate and for planting in a riparian area with an emphasis on native species. The Natural Resources Conservation Service (NRCS), the Montanastate native plant society and the Gallatincounty local water quality district (LWQD) are good sources of landscaping materials and/or landscaping information. (2) Zone 2: Disturbed areas of Zone 2 shall be planted with new or existing native grasses suited for the area. (3) Maintenance of the watercourse setback landscaping is required. If it can be demonstrated that irrigation is present for the trees and shrubs, and fencing is provided for the trees and shrubs, the number of required trees may be reduced to one tree for every 60 linear feet and one shrub for every 20 linear feet of the watercourse along each side of the watercourse. (4) Planting materials are exempt from the size requirements of section 18.48.05038.26.050.G.3. (5) To prevent soil erosion and the invasion of noxious weeds, the watercourse setbacks on all land proposed for development shall be covered with existing vegetation or shall be seeded with native grasses as soon as seasonally feasible or prior to commencement of any site development or site preparation work. (6) Native shall mean those plants which are native to the Gallatin Valley. (7) Use native grasses, forbs, sedges and other herbaceous plants in areas of disturbance (e.g., bridges, culverts, utilities installation, trails) within the watercourse setback. Native woody plantings are required in all zones in disturbed and undisturbed areas. g. Except for as otherwise allowed in subsections 18.42.100.2.e and f, BMC of this section, no disturbance of soils and existing vegetation shall occur in all zones. 3. Other provisions. a. The watercourse setback shall be depicted on all preliminary and final plats and plans. b. These provisions do not apply to agricultural uses, including lands controlled in the conservation reserve program (CRP), activities, and structures that existed prior to the effective date of these regulations ordinance from which this section is derived. Any agricultural uses, activities or structures established after the effective date of these regulations ordinance from which this section is derived shall comply with these regulations. An agricultural use, activity or structure shall be considered abandoned if not used for agricultural purposes for more than 180 consecutive days. (Ord. No. 1645, § 18.42.100, 8-15-2005; Ord. No. 1693, § 13(18.42.100), 2-20-2007; Ord. No. 1709, § 12(18.42.100), 7-16-2007; Ord. No. 1761, exh. H(18.42.100), 7-6-2009; Ord. No. 1769, exh. G(18.42.100), 12- 28-2009) PROOFS Page 632 of 977 Sec. 38.23.110. Ridgelines and viewsheds. A. For the purpose of having structures blend more naturally into the landscape rather than being a prominent focal point, ridgeline protection areas are established. These areas are defined in chapter18.80article 42 of this chapter and are identified and designated based on topographic characteristics. The Bozeman Ridgeline Map identifies areas with a high likelihood of meeting the standards for ridgelines. 1. All buildings located within a ridgeline protection area shall be set back from the ridgeline a distance not less than three times its height above grade. The distance of the setback shall be measured perpendicular from the ridgeline. a. Exception. In the event a building permit is sought for a lot approved or created prior to the effective date of the ordinance, January 1, 2004, the proposed development shall comply with this section to the extent reasonably feasible given the lot dimensions, orientation, and other characteristics. The final approval body for the proposed development shall determine the extent that is reasonably feasible and may relax the special setback required by this section, subject to applicable appeal provisions. Such administrative relief shall not reduce setbacks below those required elsewhere in this chaptertitle. (Ord. No. 1645, § 18.42.110, 8-15-2005; Ord. No. 1693, § 13(18.42.110), 2-20-2007; Ord. No. 1709, § 12(18.42.110), 7-16-2007; Ord. No. 1761, exh. H(18.42.110), 7-6-2009; Ord. No. 1769, exh. G(18.42.110), 12- 28-2009) Sec. 38.23.120. Mail delivery. If mail delivery will not be to each individual lot within the development, the developer shall provide an off-street area for mail delivery within the development in cooperation with the United States Postal Service. It shall not be the responsibility of the city to maintain or plow any mail delivery area constructed within a city right-of-way. (Ord. No. 1645, § 18.42.120, 8-15-2005; Ord. No. 1693, § 13(18.42.120), 2-20-2007; Ord. No. 1709, § 12(18.42.120), 7-16-2007; Ord. No. 1761, exh. H(18.42.120), 7-6-2009; Ord. No. 1769, exh. G(18.42.120), 12- 28-2009) Sec. 38.23.130. Fences, walls and hedges. A. Location and height. Except as provided in section 18.44.100, BMC38.24.100, fences, walls and hedges, in any district may be located on lot lines provided such fences, walls and hedges comply with the following height requirements: 1. Do not exceed six feet in height in any required rear or required side yard. Fences exceeding six feet in height shall be subject to the minimum yard requirements of the district in which such fences are located. Decorative post caps may exceed the height limit by no more than one additional foot. Fences in excess of six feet in height require a building permit before installation may commence. Fences may not exceed eight feet in height. a. A gate may be provided which defines an entrance point. The gate may have a defining structure so long as the defining structure is not more than one foot wide on either side of the gate. Gate structure heights may not exceed twice the allowed fence height. 2. Do not exceed four feet in height in any required front yard or any portion of a required corner side yard that is forward of the rear edge of the building facade nearest the corner side yard. Decorative post caps may exceed the height limit by no more than one additional foot. PROOFS Page 633 of 977 3. Fences used in an agricultural pursuit to retain stock animals or for public safety shall be excepted. 4. The height of fences located in the B-3 district shall meet the requirements of this section for any provided, not required, yards. B. Relation to linear parks. Fences located in the rear or side yard setback of properties adjoining any Bozemancity linear park shall have a maximum height of four feet. C. Construction and maintenance. Every fence or wall shall be constructed in a substantial, workman-like manner and of substantial material reasonably suited for the purpose for which the fence or wall is proposed to be used. Every fence or wall shall be maintained in a condition of reasonable repair and shall not be allowed to become and remain in a condition of disrepair, damage or unsightliness, or constitute a nuisance, public or private. Any such fence or wall which is, or has become, dangerous to the public safety, health or welfare, or has become unsightly through improper maintenance or neglect is a public nuisance and the building official shall commence proper proceedings for the abatement thereof. D. Barbed wire and electric fences. 1. No barbed wire or similar sharp fencing or electric fences shall be permitted, except in R-S districts; except that barbed wire or other similar sharp fencing materials may be used on the top of security fences in M-1 and M-2 districts. 2. When electrically charged fences are used in an R-S district, such fences shall be posted with warning signs at intervals not to exceed 150 feet where such fences are adjacent to public rights-of-way. E. Measuring fence and wall height. In case of a fence erected on top of a retaining wall, the height shall be measured from the grade of the high side of the wall. F. "Finished" side out. Any fence or wall constructed so as to have only one elevation "finished," which shall be defined as not having its supporting members significantly visible, shall be erected such that the finished elevation of the fence is exposed to the adjacent property. G. Fencing of utilities and outdoor storage areas. 1. All utility substations, wells, storage facilities or other utilities shall be screened from view by a wall, fence, hedge or landscape screen. 2. All storage for commercial operations shall be conducted within a completed enclosed building or within an area completely enclosed, except for access points, by a wall, fence, hedge or landscape screen at least six feet in height. (Ord. No. 1645, § 18.42.130, 8-15-2005; Ord. No. 1693, § 13(18.42.130), 2-20-2007; Ord. No. 1709, § 12(18.42.130), 7-16-2007; Ord. No. 1761, exh. H(18.42.130), 7-6-2009; Ord. No. 1769, exh. G(18.42.130), 12- 28-2009) Sec. 38.23.140. Off-street loading berth requirements. A. Affected uses. Every hotel/motel with restaurant, conference center, restaurant, department store, freight terminal or railroad yard, hospital or sanitarium, industrial plant, manufacturing establishment, retail establishment, storage warehouse or wholesale establishment, and all other structures devoted to similar mercantile or industrial pursuits, which has an aggregate gross floor area of 15,000 square feet or more shall provide off-street truckloading or unloading berths in accordance with the following Table 38.23.140: 1. Any office building 100,000 square feet or larger shall have at least one off-street loading berth. Table 22-1 38.23.140 PROOFS Page 634 of 977 Square Feet of Aggregate Gross Floor Area Devoted to Such Use Number of Berths 15,000 square feet up to and including 40,000 square feet 1 40,001 square feet up to and including 100,000 square feet 2 For each additional 100,000 square feet 1 additional B. Standards for off-street loading facilities. All off-street loading facilities shall conform to the following standards: 1. The first loading berth shall be at least 70 feet in length. Additional berths required shall be at least 45 feet in length unless certified by the property owner in writing that additional loading activity will take place exclusively with small delivery vans in which case the berth shall be at least 25 feet in length. All loading berths shall be at least 12 feet in width and 14 feet in height, exclusive of aisle and maneuvering space. 2. Such space may occupy all or any part of any required yard space, except front and exterior side yards, and shall not be located closer than 50 feet to any lot in any residential zone unless separated from such zone, except at the accesses, by screening not less than eight feet in height. 3. Sufficient room for turning and maneuvering vehicles shall be provided on the site so that vehicles shall cross a property line only by driving forward. 4. Each loading berth shall be accessible from a street or alley or from an aisle or drive connecting with a street or alley, without traversing a residential district. 5. The loading area, aisles and access drives shall be paved so as to provide a durable, dustless surface and shall be so graded and drained so as to dispose of surface water without damage to private or public properties, streets or alleys. 6. Bumper rails shall be provided at locations where needed for safety or to protect property. 7. No regular repair work or servicing of vehicles shall be conducted in a loading area. 8. Off-street loading facilities shall be located on the same site with the use for which the berths are required. 9. If more than one use is located on a site, the number of loading berths provided shall be equal to the sum of the requirements prescribed in this chaptertitle for each use. If more than one use is located on a site, and the gross floor area of each use is less than the minimum for which loading berths are required, but the aggregate gross floor area is greater than the minimum for which loading berths are required, off- street loading berths shall be provided as if the aggregate gross floor area were used for the use requiring the greatest number of loading berths. 10. Off-street loading facilities for a single use shall not be considered as providing required off-street loading facilities for any other use. 11. At the time of initial occupancy, major alterations or enlargement of a site, or of completion of construction of a structure or of a major alteration or enlargement of a structure, there shall be provided off-street loading berth requirements subject to the provisions of chapter18.74, BMCarticle 39 of this chapter. The number of loading berths provided for a major alteration or enlargement of a site or structure shall be in addition to the number existing prior to the alteration or enlargement. PROOFS Page 635 of 977 12. Space allocated to any off-street loading berth shall not be used to satisfy the space requirements for any off-street parking facility. (Ord. No. 1645, § 18.42.140, 8-15-2005; Ord. No. 1693, § 13(18.42.140), 2-20-2007; Ord. No. 1709, § 12(18.42.140), 7-16-2007; Ord. No. 1761, exh. H(18.42.140), 7-6-2009; Ord. No. 1769, exh. G(18.42.140), 12- 28-2009) Sec. 38.23.150. Lighting. A. Purpose. The purpose of this section is to: 1. Provide lighting in outdoor public places where public health, safety and welfare are potential concerns; 2. Protect drivers, bicyclists and pedestrians from the glare of non-vehicular light sources that shine into their eyes and thereby impair safe travel; 3. Protect neighbors and the night sky from nuisance glare and stray light from poorly aimed, placed, applied, maintained or shielded light sources; 4. Protect and maintain the character of Bozemanthe city; 5. Prevent excessive lighting and conserve energy; and 6. Provide adequate lighting for safe pedestrian and bicycle travel. B. General. 1. With the exception of street lighting, lighting is not required. If installed, all lighting shall comply with the requirements of this section 18.42.150, BMC. 2. Unless otherwise approved through a planned unit development, this section shall apply to all lighting for subdivisions, land uses, developments and buildings. In addition, any site modification that requires a certificate of appropriateness, site plan review or reuse application will necessitate compliance for all existing and proposed lighting on the site. 3. The provisions of this section are not intended to prevent the use of any design, material or method of installation or operation not specifically prescribed herein, provided any such alternate has been approved by the planning director. The planning director may approve any such proposed alternate, provided he/shethe planning director finds that it: a. The lighting provides at least approximate equivalence to the applicable specific requirements of this section; and b. The lighting is otherwise satisfactory and complies with the intent of this section. C. Street lighting. Street lighting consists of street lighting and pathway intersection lighting, and shall comply with the City of Bozeman Design Standards and Specifications Policy. 1. General. a. All street lighting shall be operated and maintained through the creation of a new SILD, through the annexation to an existing SILD or through some other equivalent means approved by the city. The application to create or annex to an existing SILD shall be submitted to the city within two months of preliminary approval of the development. The approval to create or annex to an SILD shall be granted prior to final plat for a subdivision or occupancy if a final plat is not required. b. Street lighting shall be installed per 18.74.030section 38.39.030.B. PROOFS Page 636 of 977 c. Individual yard lights on private property shall not be used for street lighting. 2. Streetlights at intersections. a. Illumination requirements. (1) Single installation. The illumination requirement for an intersection streetlight, where only one light is required, shall be determined from Table 22-2 38.23.150-1 based on the functional classification of the street upon which the light is located. (2) Multiple installations. For all intersections where more than one streetlight is required, all lights shall be within the same range for measured lumens. The illumination requirement shall be determined from Table 22-2 38.23.150-1 for the functional classification of the leg of the intersection with the highest requirement. b. Non-signalized intersections. A streetlight shall be installed at each non- signalized street intersection with the following exceptions contained in subsections (1) and (2): (1) At intersections where the width of one or more of the approaches is greater than or equal to 50 feet, as measured to the back of curb or edge of pavement, then two streetlights shall be installed on diagonally opposite corners. (2) At the intersection of two local streets a streetlight may be omitted if its installation would violate the spacing criteria contained in Table 22-2 38.23.150-1. c. Signalized intersections. At signalized intersections where all approaches are narrower than 50 feet, as measured to the back of curb or edge of pavement, two streetlights shall be installed on the diagonally opposite corners. At signalized intersections where the width of one or more of the approaches is greater than or equal to 50 feet, four streetlights shall be installed, one on each corner. 3. Spacing of streetlights. In addition to intersection locations, streetlights shall be spaced along streets in accordance with Table 22-2 38.23.150-1. Table 22-2 38.23.150-1 Functional Classification Through Lanes Pedestrian Conflict Maintained Lumens (Minimum Maintained Average Values) Spacing Arterial 4/2 High 33,000-22,500 225/225 4/2 Low 22,500-13,500 300/275 Collector 4/2 High 22,500-13,500 250/225 4/2 Low 22,500-8,000 300/275 Local 2 Low 9,500-8,000 N/A1 Arterial - 4/2 High 33,000-22,500 200/175 PROOFS Page 637 of 977 Commercial center Collector - Commercial center 4/2 High 22,500-13,500 225/175 Local - Commercial center 2 High 9,500-8,000 150 1Streetlights are only required at intersections on local streets. 4. Streetlight location and placement of equipment. In addition to spacing requirements, the following layout criteria shall be used: a. When a streetlight location falls near an unlit intersection, the light shall be located at the intersection; b. Streetlights shall be located at property lines to the greatest extent possible, but not in conflict with other utility service providers; c. Pole spacing along a street may vary from the criteria of Table 22-2 38.23.150-1 by up to 15 percent. For the uniformity of appearance, the variance in spacing between adjacent spans should not be more than 15 percent; d. All proposed streets within the proposed subdivision, having a curve of 300 feet or longer in length, shall have a streetlight in the middle of the horizontal curve or as required by the city engineer; e. A streetlight shall be placed at the terminal ends of center median islands having trees and/or other fixed objects not having a breakaway design for speeds of 25 miles per hour or greater; f. Wiring for streetlights shall be underground; g. Additional streetlights may be required by the city commission when potential traffic hazards are identified during plan review; and h. For streets that are wider than 70 feet (from back of curb) the required streetlights shall alternate on either side of the street. 5. Streetlight support structures. The ballasts; pole type, strength and anchor bolts; and pole foundation shall be appropriate for the proposed lighting and shall be installed per the manufacturer's recommendations. Mounting heights shall be measured from grade and shall comply with the requirements of Table 22-3 38.23.150-2. Table 22-3 38.23.150-2 Maintained Lumens (Minimum Maintained Average Values) Mounting Height 9,500-8,000 25 feet 22,500-9,500 35 feet 33,000-22,500 38 feet 6. Pathway intersection lighting. Pathway lights shall be installed at all intersections PROOFS Page 638 of 977 of pathways and streets located within the proposed development or along existing streets or roads abutting the development, if said intersection is located in areas other than lighted intersections. All pathway lights shall comply with city of Bozeman specifications. Table 22-4 38.23.150-3 Average Horizontal Illuminance at Pathway in Maintained Footcandles Mixed vehicle and pedestrian 2.0 Pedestrian only 1.0 Source: Roadway Lighting (RP-8-00), Illuminating Engineering Society of North American, 2000. D. Site lighting. 1. Parking lot lighting. Table 22-5 38.23.150-4 Basic1 Security2 Minimum horizontal illuminance in maintained footcandles 0.2 0.5 Minimum vertical illuminance in maintained footcandles 0.1 0.25 Uniformity ratio, maximum: minimum 20:01 15:00 Source: Parking Lot Lighting, Illuminating Engineering Society of North American, 1998. 1Basic lighting provides for the safety of customers and employees during business hours, and for the security of on-site, outside storage of goods and/or materials. 2Security lighting provides for the safety of employees during nonbusiness hours, and for the security of on-site, outside storage of goods and/or materials. 2. Building entrances. Illuminance for building entrances (including commercial, industrial, institutional and municipal) shall average 5.0 maintained footcandles. 3. Car dealership lighting. Table 22-6 38.23.150-5 Area Maximum Illuminance on Pavement (in Maintained Footcandles) Uniformity Ratio Maximum: minimum Main business districts Adjacent to roadway 10--20 5:01 Other rows 5--10 10:01 PROOFS Page 639 of 977 Entrances 5--10 5:01 Driveways 2--3 10:01 Secondary business districts Adjacent to roadway 5--10 5:01 Other rows 2.5--5 10:01 Entrances 2.5--5 5:01 Driveways 1--2 10:01 Source: Lighting for Exterior Environments, Illuminating Engineering Society of North American, 1998. 4. Service station or gas pump area lighting. Table 22-7 38.23.150-6 Area Description Average Illuminance on Described Area (in Maintained Footcandles) Approach with dark surroundings 1.5 Driveway with dark surroundings 1.5 Pump island area with dark surroundings 5 Building facades with dark surroundings 2 Service areas with dark surroundings 2 Landscape highlights with dark surroundings 1 Approach with light surroundings 2 Driveway with light surroundings 2 Pump island area with light surroundings 10 Building facades with light surroundings 3 Service areas with light surroundings 3 Landscape highlights with light surroundings 2 Source: Lighting for Exterior Environments, Illuminating Engineering Society of North American, 1998. 5. Site lighting support structures. The ballasts; pole type, strength and anchor bolts; and pole foundation shall be appropriate for the proposed lighting and shall be installed per the manufacturer's recommendations. Height shall be measured from grade. Except as allowed in subsections E and G of this section, light poles for parking lot lighting shall not exceed 25 feet. 6. Site lighting installation and maintenance. a. For new installations, electrical feeds for fixtures mounted on poles shall be run underground, not overhead. b. Poles supporting lighting fixtures for the illumination of parking areas and located directly behind parking spaces shall be placed a minimum of five feet PROOFS Page 640 of 977 outside the paved area or on concrete pedestals at least 30 inches high above the pavement, or suitably protected by other approved means. c. Lighting fixtures and ancillary equipment shall be maintained so as always to meet the requirements of this ordinance section. 7. Miscellaneous site lighting specifications. Except as otherwise allowed in subsections E and G of this section, all lighting shall comply with the following requirements: a. All outdoor lighting, whether or not required by this ordinance section, shall be aimed, located, designed, fitted and maintained so as not to present a hazard to drivers or pedestrians by impairing their ability to safely traverse and so as not to create a nuisance by projecting or reflecting objectionable light onto a neighboring use or property. b. All outdoor lighting fixtures shall be shielded in such a manner that no light is emitted above a horizontal plane passing through the lowest point of the light emitting element, so that direct light emitted above the horizontal plane is eliminated. c. Except for residential lighting, streetlighting, pathway intersection lighting and security lighting, all lighting shall be turned off between 11:00 p.m. and 6:00 a.m. Exceptions shall be granted to those businesses which operate during these hours; such lighting may remain illuminated only while the establishment is actually open for business. d. Vegetation screens shall not be employed to serve as the primary means for controlling glare. Rather, glare control shall be achieved primarily through the use of such means as cutoff fixtures, shields and baffles, and appropriate application of fixture mounting height, wattage, aiming angle and fixture placement. e. All outdoor lighting shall be designed and located such that the maximum illumination measured in footcandles at the property line shall not exceed 0.3 onto adjacent residential properties and 1.0 onto adjacent commercial properties and public rights-of-way. f. Externally illuminated wall-mounted and pole signs shall be lighted by fixtures mounted at the top of the sign and aimed downward; ground- mounted sign lighting may only be used for monument style signs. Fixtures used to illuminate signs shall be aimed so as not to project their output beyond the sign. g. Floodlights, spotlights or any other similar lighting shall not be used to illuminate buildings or other site features unless approved as an integral architectural element on the development plan. On-site lighting may be used to accent architectural elements but not to illuminate entire portions of buildings. Where accent lighting is used, the maximum illumination on any vertical surface or angular roof surface shall not exceed 5.0 average maintained footcandles. Building facade and accent lighting shall not be approved unless the light fixtures are carefully selected, located, aimed and shielded so that light is directed only onto the building facade and spillover light is eliminated. (1) Directional fixtures used to illuminate flagpoles (state, United States and/or foreign nations) may project their output beyond the flagpole. PROOFS Page 641 of 977 h. Lights that flash, move, revolve, rotate, scintillate, blink, flicker, vary in intensity or color, or use intermittent electrical pulsation are prohibited. i. Translucent awnings and canopies used for building accents over doors, windows, etc., shall not be internally lit (i.e., from underneath or behind). j. Searchlights, laser source lights or any similar high-intensity light shall not be permitted, except in emergencies by police and fire personnel or at their direction, for meteorological data gathering purposes, or for special events if a permit is obtained from the planning director. E. Sports and athletic field lighting. Lighting for sports and athletic fields may need to exceed illumination standards for general recreational needs in order to meet higher standards required for play. The city commission may approve relaxations of these lighting standards provided that the following minimum standards are met: 1. Fixtures shall be at least 70 feet in mounted height measured from grade. 2. If floodlights are used, they shall not be aimed above 62 degrees and should use internal louvers and external shields to help minimize light pollution. 3. Fixtures shall be designed and aimed so that their beams fall within the primary playing area and the immediate surroundings, so that off-site direct illumination is significantly restricted (spillover levels at the property line shall not exceed 0.3 footcandle). 4. Lighting shall be extinguished no later than one hour after the event ends. F. Lighting specifications for all lighting. Light fixtures and standards shall be compatible with the surrounding area, the subdivision or site design, and the development's character and/or architecture. 1. Luminaires (light fixtures). Except as otherwise allowed in subsections E and G of this section, all luminaires shall comply with the following requirements: a. In all light fixtures, the light source and associated lenses shall not protrude below the edge of the light fixture, and shall not be visible from adjacent streets or properties. b. Fixtures shall be of a type and design appropriate to the lighting application. c. For lighting horizontal areas such as roadways, sidewalks, entrances and parking areas, fixtures shall meet IESNA "full-cutoff" criteria (no light output emitted above 90 degrees at any lateral angle around the fixture). d. As needed, fixtures shall be equipped with or be modified to incorporate light directing and/or shielding devices such as shields, visors, skirts, internal louvers or hoods to redirect offending light distribution and/or reduce direct or indirect glare. e. The installation of any mercury vapor light fixture or lamp for use as outdoor lighting is prohibited, except that until November 21, 2006 (the fifth anniversary date of the effective date of the ordinance from which this section is derived), this provision shall not apply to any replacement bulb. G. Historic lighting. The city commission may relax lighting standards and requirements, with the exception of illumination levels, for the provision of historic lighting in the neighborhood conservation overlay district. Historic lights shall be proposed as an integrated part of an overall development plan. The historic preservation planner shall review and approve the proposed lighting for historic appropriateness. PROOFS Page 642 of 977 H. Post installation inspection. The city reserves the right to conduct post-installation nighttime inspections to verify compliance with the requirements of this section, and if appropriate, to require remedial action at no expense to the city. I. Compliance monitoring. If the city finds that a lighting installation creates a safety or personal security hazard, the person responsible for the lighting shall be notified in writing and required to take remedial action within 30 days. J. Nuisance glare and inadequate illumination levels. When the city finds that a lighting installation produces unacceptable levels of nuisance glare, skyward light, excessive or insufficient illumination levels, or otherwise varies from this section, the city may notify the person responsible for the lighting and require appropriate remedial action within 30 days. K. Nonconforming lighting. With the exception of street lighting, security lighting fixtures or a security lighting installation in use on January 1, 2004, that does not conform to this section and that is not otherwise required to be brought into compliance pursuant to this section, shall be required to be in compliance five years after the date of enactment of this the ordinance from which this provision is derived. Any other lighting fixture or lighting installation existing on the effective date of this the ordinance from which this provision is derived that does not conform to the requirements of this section shall be considered as a legal conformance. (Ord. No. 1645, § 18.42.150, 8-15-2005; Ord. No. 1693, § 13(18.42.150), 2-20-2007; Ord. No. 1709, § 12(18.42.150), 7-16-2007; Ord. No. 1761, exh. H(18.42.150), 7-6-2009; Ord. No. 1769, exh. G(18.42.150), 12- 28-2009; Ord. No. 1796, § 2, 1-3-2011) Sec. 38.23.160. Outdoor storage. A. All materials, supplies, merchandise or other similar matter not on display for direct sale, rental or lease to the ultimate consumer or user shall be stored within the confines of a 100 percent opaque wall or fence not less than six feet tall. B. No storage of any type shall be permitted within any required yard, and shall be subject to § 18.40.150, BMCsection 38.22.150. C. All areas designated for vehicle and equipment storage shall be screened from view from the street and adjacent properties as per subsection A of this section. Vehicle and equipment storage areas shall not be subject to parking lot paving or landscape requirements, but shall be subject to drainage detention requirements and appropriate dust control requirements. (Ord. No. 1645, § 18.42.160, 8-15-2005; Ord. No. 1693, § 13(18.42.160), 2-20-2007; Ord. No. 1709, § 12(18.42.160), 7-16-2007; Ord. No. 1761, exh. H(18.42.160), 7-6-2009; Ord. No. 1769, exh. G(18.42.160), 12- 28-2009) Sec. 38.23.170. Trash and garbage enclosures. A. A permanent enclosure for temporary storage of garbage, refuse and other waste materials shall be provided for every use, other than single-household dwellings, duplexes, individually owned townhouse or condominium units, in every zoning district, except where a property is entirely surrounded by screen walls or buildings. Trash enclosures shall be constructed so that contents are not visible from a height of five feet above grade from any abutting street or property. Trash enclosures shall comply with the following regulations: 1. Location. Trash enclosures, surrounding standard steel bins (dumpsters), shall be located on the site for convenient pickup service, and the location shall be shown on required site plans. Trash enclosures shall not be located in required front yards, and shall be situated so that containers can be pulled straight out of the enclosure or so the sanitation truck can back straight into it. The location of all trash enclosures shall be subject to review and approval by the city sanitation department. PROOFS Page 643 of 977 2. Construction. Trash enclosures shall be constructed of solid or ornamental pierced masonry walls or other appropriate materials, with a solid concrete floor sloped for drainage and maintenance of sanitary conditions. Enclosures shall be architecturally compatible with the principal structure. Enclosures shall be of sufficient height to conceal contents, including containers, but in no case shall be less than four feet in height above grade. 3. Exception. A garbage enclosure is not required for dumpsters accessed via an alley. (Ord. No. 1645, § 18.42.170, 8-15-2005; Ord. No. 1693, § 13(18.42.170), 2-20-2007; Ord. No. 1709, § 12(18.42.170), 7-16-2007; Ord. No. 1761, exh. H(18.42.170), 7-6-2009; Ord. No. 1769, exh. G(18.42.170), 12- 28-2009) Sec. 38.23.180. Water rights. A. Prior to a final approval of all development reviewed as a site plan, conditional use permit, planned unit development, or subdivision and prior to an annexation of any land, one of the following must occur: 1. Payment shall be made to the city of a payment-in-lieu of water rights calculated based on the annual demand for volume of water the development will require multiplied by the most current annual unit price; or 2. A transfer to the city of ownership of water rights adequate to provide the volume of water the development will require. A transfer of ownership of water rights must be in a manner approved by the director of public services. B. If adequate water rights or a payment-in-lieu was previously provided to the city for the subject property, evidence of those rights or payment-in-lieu may be offered to demonstrate compliance with this section. If the expected demand for water by the proposed development increases by more than one acre-foot over that for which water rights or payment-in-lieu of water rights were previously provided, additional water rights or payment-in-lieu of water rights equal to the difference between the previously provided water rights or payment-in-lieu and the estimated current demand or payment-in-lieu price shall be provided. C. Provision of water rights or payment-in-lieu may be deferred by phase for phased developments or for annexations when the phase or annexation is in excess of ten acres. D. The city manager may adopt administrative procedures to implement this section. The director of public services shall adopt standards for the calculation of demand for water use. The city commission shall establish the unit cost for payment-in-lieu by resolution. E. The amount paid for a payment-in-lieu shall be calculated using the per unit price in effect on the date the payment-in-lieu of water rights is to be made to the city. (Ord. No. 1796, § 3(18.42.180), 1-3-2011) CHAPTER 18.44. TRANSPORTATION FACILITIES AND ACCESS ARTICLE 24. TRANSPORTATION FACILITIES AND ACCESS Sec. 38.24.010. Streets, general. A. All streets shall be provided in accordance with an the adopted growth policy and/or transportation plan. The arrangement, type, extent, width, grade and location of all streets shall be considered in their relation to existing and planned streets, to topographical conditions, to public convenience and safety, and to the proposed uses of the land to be served by such streets. The design standards contained in these regulations shall apply to all construction, reconstruction and paving of streets. PROOFS Page 644 of 977 1. Relation to undeveloped areas. When a proposed development adjoins undeveloped land, and access to the undeveloped land would reasonably pass through the new development, streets within the proposed development shall be arranged to allow the suitable development of the adjoining undeveloped land. Streets within the proposed development shall be constructed to the boundary lines of the tract to be developed, unless prevented by topography or other physical conditions, in which case a subdivision variance must be approved by the city commission. 2. Relation to developed areas. The developer shall arrange the streets to provide for the continuation of streets between adjacent developed properties when such continuation is necessary for the convenient movement of traffic, effective provision of emergency services and efficient provision of utilities. 3. Separation of through and local traffic. Where a development abuts or contains an existing or proposed arterial or collector street, the developer may be required to provide frontage roads, reverse frontage with a reservation prohibiting access along the rear property line, screen planting, or such other treatment as may be necessary for protection of residential properties and to afford separation of through and local traffic. 4. Distance between parallel rights-of-way. Where a development borders on or contains a railroad, limited access highway, canal, ditch or stream right-of-way, the developer may be required to provide a street approximately parallel to and on each side of such right-of-way at a distance suitable to allow for the appropriate use of the intervening land. Such distances shall also be determined with due regard for the requirements of approach grades and future grade separation. 5. Dead-end streets. Dead-end streets shall comply with city design specifications and standards, and with any city-adopted Uniform International Fire Code329. No dead- end streets longer than 150 feet shall be permitted without an approved turn around. Where streets terminate, the developer shall provide a cul-de-sac at the terminus. Where it is planned that a dead-end street will be extended in the future, a temporary cul-de-sac shall be provided. All approved turnarounds shall be signed as no parking. a. “T” turnarounds, in-lieu of a temporary cul-de-sac, must be specifically approved by the city engineer. “T” turnarounds shall include two straight backup lengths of 45 feet each to accommodate city fire trucks. All other design requirements shall be established by the city engineer. 6. Local streets. Local streets shall be laid out to discourage speeding. 7. Half streets. Half streets are prohibited except when they are essential to the development, are beneficial to the city, or when the city engineer is satisfied that the half of the street will be dedicated to the public when the adjoining property is developed. Half streets must be approved by the city engineer, and when adjacent to unannexed land, the county road office. When an existing half street is adjacent to a tract to be developed, the undeveloped half of the street shall be provided with the new development. 8. Second or emergency access. To facilitate traffic movement, the provision of emergency services and the placement of utility easements, all developments shall be provided with a second means of access. If, in the judgment of the development 329 Should "Uniform Fire Code" be changed to "International Fire Code"? Yes. PROOFS Page 645 of 977 review committee (DRC), a second dedicated right-of-way cannot be provided for reasons of topography or other physical conditions, the developer shall provide an emergency access, built to the standards detailed in these regulations. a. This provision may be waived or conditionally waived by the DRC. 9. Culs-de-sac. Culs-de-sac are generally prohibited. The city engineer may consider and approve the installation of a cul-de-sac only when necessary due to topography, the presence of critical lands, access control, adjacency to parks or open space, or similar site constraints. Pedestrian walks shall be installed at the end of culs-de-sac where deemed appropriate. 10. Bridges and culverts. Culverts or bridges shall be provided and installed by the developer where drainage channels intersect any street right-of-way. a. Bridges. Bridges shall be built to state department of transportation H-20 load standards, and shall be reviewed and approved by the Gallatin county road office and the city engineering department. b. All culverts shall, at a minimum, extend across the entire improved width of the street cross section. The size and length of the culvert and the amount of backfill over the culvert shall be determined by a registered professional engineer, when determined necessary by the city engineering department. (1) Each culvert or other drainage facility shall be large enough to accommodate potential runoff from upstream drainage areas. The minimum capacity of a culvert shall be equivalent to a circular diameter of 15 inches. 11. Encroachment permits. The subdivider shall be required to obtain encroachment permits for all access to state highways. 12. Traffic control devices. Street signs and other traffic control devices shall be installed at all intersections and any other location required by the city. The location, size, shape and height of all traffic control devices shall comply with city of Bozeman requirements, and shall conform with the Manual of Uniform Traffic Control Devices (MUTCD) and the city modifications to Montanastate public works standard specifications. 13. Sight distances. The alignment of all streets shall provide adequate sight distances based on design operating speeds. (Ord. No. 1645, § 18.44.010, 8-15-2005; Ord. No. 1693, § 14(18.44.010), 2-20-2007) Sec. 38.24.020. Street and road dedication. A. General. All streets or alleys within, or providing access to, the proposed development shall be dedicated to the public, be private streets to be owned and maintained by an approved property owners association, or, if the criteria of this section are met, be a public street easement. 1. Public street easements. Public street easements shall: a. Be approved by the city attorney’s office; b. Be recorded in the county clerk and recorder’s office; and c. Clearly grant to the public an unrestricted right of ingress and egress from a public street to the property to be subdivided. 2. Private streets. PROOFS Page 646 of 977 a. Private streets may be required to have a public access easement if deemed necessary by the city. b. If a private street is proposed, the project shall be reviewed as a planned unit development. However, development proposals containing private streets shall be exempt from the PUD review requirement if: (1) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet, and the standard back-of-curb to back-of-curb width of 31, 33 or 35 feet; or (2) A local private street is proposed and the street would comply with the city standard right-of-way requirement of 60 feet. The back-of-curb to back-of-curb width could vary from city standards, provided that: (a) A permanent funding source, such as the levying of assessments against all properties within the development, for street maintenance is established and the funding levels will be adequate for all future private street maintenance; and (b) The developer signs a waiver of right to protest the creation of SIDs, or other perpetual legal instrument, acknowledging that the city will not assume dedication and/or maintenance of the streets unless the street is brought up to city standards, or the property owners have agreed to an assessment to fund improvements required to bring the street up to city standards. The developer shall record the waiver, or other legal instrument, at the time of final plat recordation, or prior to issuance of building permits if no final plat recordation is required. c. Documented proof of adequate maintenance funding and scheduling, for all private streets, shall be provided, subject to § 18.72.040 section 38.38.030, BMC.330 (Ord. No. 1645, § 18.44.020, 8-15-2005; Ord. No. 1693, § 14(18.44.020), 2-20-2007) Sec. 38.24.030. Intersections. A. The following requirements apply to street intersections: 1. Streets shall intersect at 90-degree angles except when topography prohibits this alignment. In no case shall the angle of an intersection be less than 60 degrees to the centerline of the street or road being intersected; 2. Two streets meeting a third street from opposite sides shall be offset at least 125 feet for local roads and 300 feet for arterials or collectors. Distances shall be measured from the inside edge of the access, extended at its intersection with the projected curbline of the intersecting street, to the right-of-way line, along the street frontage right-of-way line. See Figure 18.44.090 in Appendix A to this chapter; 3. No more than two streets may intersect at one point; 4. Intersections of local streets with major arterials or highways shall be subject to § 18.44.090, BMCsection 38.24.090; 330 What section is this referring to? Unable to find and correct internal cite. If you provide, we will update. Please change the citation to 38.37.030. PROOFS Page 647 of 977 5. Intersections shall be designed to provide adequate visibility for traffic safety based on the designed operating speeds of the intersecting roadways; 6. Hilltop intersections are prohibited, unless no alternatives exist. Intersections on local streets within 100 feet of a hilltop are prohibited. Intersections on arterial and collector streets within 200 feet of a hilltop are prohibited. If no alternatives to a hilltop intersection exist, additional traffic control devices shall be required; 7. The grade of approaches to major highways shall not exceed five percent; and 8. Any street which intersects a paved minor collector or greater street shall be paved for at least 75 feet from the existing edge of pavement. (Ord. No. 1645, § 18.44.030, 8-15-2005; Ord. No. 1693, § 14(18.44.030), 2-20-2007) Sec. 38.24.040. Street names. A. The following requirements apply to street names: 1. New streets aligned with existing streets shall have the same name as the existing streets. 2. All street names must be approved by the Gallatin county geographic information systems and city engineering department prior to final plat or plan approval in order to avoid duplication and confusion with names of existing streets and roads. (Ord. No. 1645, § 18.44.040, 8-15-2005; Ord. No. 1693, § 14(18.44.040), 2-20-2007) Sec. 38.24.050. Street and road right-of-way width and construction standards. A. All streets and roads providing access to, and within, the proposed development shall meet the following standards: 1. Right-of-way width and construction standards contained in this chaptertitle, the most recently adopted long range transportation plan, the City of Bozeman Design Standards and Specifications Policy, and the City of Bozeman Modifications to Montana Public Works Standard Specifications shall apply. 2. Access streets and roads which are not on the city's or county's road maintenance system shall be dedicated to the public or shall have a public easement which meets the criteria of this chapterarticle. (Ord. No. 1645, § 18.44.050, 8-15-2005; Ord. No. 1693, § 14(18.44.050), 2-20-2007; Ord. No. 1796, § 4, 1-3- 2011) Sec. 38.24.060. Street improvement standards. A. All street improvements shall be designed by and constructed under the supervision of a professional civil engineer, registered in the state of Montana, and shall meet or exceed the right-of-way and construction standards adopted by the city (including but not limited to an adopted transportation plan or specifications manual) and required for the type of street to be constructed. B. Plans and specifications for all public or private streets (including but not limited to curb, gutter, storm drainage, street lighting and sidewalks), shall be provided to and approved by the city engineer. The developer shall provide professional engineering services for construction inspection, post-construction certifications and preparation of Mylar record drawings. The plans and specifications shall be approved and a preconstruction conference shall be conducted before any construction is initiated on the street improvements. 1. Surfacing. A pavement design report, based upon specific site soil data and design- year traffic loading conditions, prepared by a professional engineer, or other PROOFS Page 648 of 977 qualified professional approved by the city engineer, shall be submitted to the city engineer for approval prior to plan and specification submittal if using the self- certification process or with the plans and specifications if using the standard process. Pavement design shall be in accordance with the city design standards and specifications policy and the city modifications to Montanastate public works standard specifications. 2. Alleys. In subdivisions where alleys are proposed, a 20-foot-wide right-of-way shall be provided. The driving surface of the alley shall be 16 feet wide and shall be improved with gravel. a. Subdividers may elect to pave subdivision alleys provided that adequate stormwater facilities are available. b. Alleys shall be designed and constructed in accordance with the city design standards and specifications policy and the city modifications to Montanastate public works standard specifications, and subject to approval by the city engineer. c. Alleys used for backing under § 18.46.020section 38.25.020.D, BMC shall be designed to provide the required aisle width. 3. Traffic progression. Traffic progression will be of paramount importance. Consequently, all potential intersections with signals will be placed on quarter-mile points unless otherwise approved by the city engineer. 4. Level of service standards. All arterial and collector streets and intersections with arterial and collector streets shall operate at a minimum level of service “C” unless specifically exempted by this subsection. Level of service (LOS) values shall be determined by using the methods defined by the most recent edition of the Highway Capacity Manual. A development shall be approved only if the LOS requirements are met in the design year, which shall be a minimum of 15 years following the development application review or construction of mitigation measures if mitigation measures are required to maintain LOS. Intersections shall have a minimum acceptable LOS of “C” for the intersection as a whole. a. Exception: If an intersection within the area required to be studied by section 18.78.060.L 38.41.060.A.12 does not meet LOS “C” and the intersection has been fully constructed to its maximum lane and turning movement capacity, then an LOS of less than “C” is acceptable. b. Exception: The director of public services may accept an LOS of less than “C” at a specific intersection if: (1) A variance to allow a lesser LOS was approved not more than two years prior to the date an application for development being reviewed is determined to be adequate for review; (2) The request was made in writing with the application; and (3) The circumstances are in the professional judgment of the director of public services or their designee substantially the same as when the variance was granted. 5. Timing. The installation of street improvements shall comply with the timing requirements of chapter18.74, BMCarticle 39 of this chapter. (Ord. No. 1645, § 18.44.060, 8-15-2005; Ord. No. 1693, § 14(18.44.060), 2-20-2007; Ord. No. 1755, § 1, 1-20- 2009; Ord. No. 1796, § 5, 1-3-2011) PROOFS Page 649 of 977 Sec. 38.24.070. Street lighting. A. Standards. For street lighting standards, please refer to § 18.42.150, BMCsection 38.23.150. B. Timing. For the timing of street lighting improvements, please refer to § 18.74.030section 38.39.030.B.3, BMC. (Ord. No. 1645, § 18.44.070, 8-15-2005; Ord. No. 1693, § 14(18.44.070), 2-20-2007) Sec. 38.24.080. Sidewalks. A. General. City standard sidewalks (including a concrete sidewalk section through all private drive approaches) shall be constructed in all developments on all public and private street frontages, except for alleys. The requirements of the city design standards and specifications policy and the city modifications to Montanastate public works standard specifications shall apply. B. Sidewalks adjacent to public lands. The developer shall install sidewalks adjacent to public lands, including, but not limited to, parks, open space, and the intersection of alleys and streets or street easements. C. Timing. The following requirements regarding the timing of the installation of sidewalks shall apply: 1. For subdivision improvements, please refer to § 18.74.030section 38.39.030.B.2, BMC. 2. For site development improvements, sidewalks shall be installed prior to issuance of an occupancy permit, or shall be subject to an approved improvements agreement and financially guaranteed, as specified in chapter18.74, BMCarticle 39 of this chapter. (Ord. No. 1645, § 18.44.080, 8-15-2005; Ord. No. 1693, § 14(18.44.080), 2-20-2007) Sec. 38.24.090. Access. A. General. All final site plans and plats shall contain a statement requiring lot accesses to be built to the standard contained in this section, the city design standards and specifications policy, and the city modifications to Montanastate public works standard specifications. 1. Lot access standards. The drive approach shall be constructed in accordance with the city’s standard approach, which includes a concrete apron, sidewalk section and drop-curb. a. A city curb cut and sidewalk permit must be obtained from the engineering department prior to installation of the approach. 2. Access shall comply with any city-adopted Uniform International Fire Code331. B. 332Drive access from improved public street, approved private street or alley required. 1. For purposes of this Code, “improved” public street, approved private street, or alley means and includes: 331 Should "Uniform Fire Code" be changed to "International Fire Code"? Yes. 332 City requested change to this section; however, it is unclear what is to happen to the existing subsection B.2 ("Unless otherwise allowed...."). Therefore, no change has yet been made. Awaiting clarification from city. PROOFS Page 650 of 977 a. Any street or alley within the city constructed to a standard which meets or exceeds standards established by this chaptertitle, the city design standards and specifications policy, and the city modifications to Montanastate public works standard specifications; b. Constructed public streets which may not meet current city standards but which are constructed to a standard that has historically provided an adequate level of service to adjacent properties, which level of service would not be degraded as a result of a pending development proposal. 2. Unless otherwise allowed by this chaptertitle, all lots shall be provided with legal and physical access via one of the following options: a. 25 feet of frontage on a public or approved private street; b. 25 feet of frontage on a public or approved private street and an improved alley; or c. 25 feet of frontage on an improved alley and a greenway corridor or trail corridor with public access. This option may require additional improvements to the alley to accommodate emergency access, snow removal and storage, and the provision of utilities. The alley may also require signage for the provision of emergency services. C. Drive access requirements. 1. Drive accesses are required for commercial parking lots and parking lots for residential developments subject to the site plan review procedures of chapterarticle 18.34, BMC19 of this chapter. Parking areas for residential developments subject to the sketch plan review procedures of section 18.34.050, BMC38.19.050, may take access directly from an improved public street, approved private street or improved alley as defined in subsection B.1 of this section with access provided according to the provisions of this section and § 18.46.020section 38.25.020.D, BMC. 2. All drive accesses installed, altered, changed, replaced or extended shall comply with the following requirements: a. Residential. (1) Residential lots shall not have direct access to arterials or collectors, unless the standards contained in Table 23-3 38.24.090-3 are complied with; (2) Single-household drive access openings shall not exceed 24 feet in width measured at the right-of-way line and 34 feet in width measured at the curbline. All residential complexes for fewer than five households are considered single-household residences for the purpose of this section; (3) Adjoining accesses for townhouses shall not exceed a combined total of 40 feet in width measured at the right-of-way line. Townhouses with physical separation between drive accesses shall be reviewed as single-household drive access. For the purposes of this section, physical separation means a landscaped area greater than or equal to ten feet in width between paved areas and extending from the front line of the building to the right-of-way line; and (4) Residential complexes with five or more dwelling units shall be considered commercial (nonresidential) establishments for the purpose PROOFS Page 651 of 977 of 18.44.090section 38.24.090.C, except that separated parking facilities for individual townhouse units shall be considered the same as single-household parking facilities. b. Nonresidential. (1) Commercial drive access widths shall be a maximum of 35 feet measured at the inside edge of the drive access extended, at its intersection with the projected curbline of the intersecting street. Two- way drive access shall be a minimum of 24 feet and one-way drive access shall be a minimum of 16 feet. (2) Industrial drive access widths shall be a maximum of 40 feet measured at the inside edge of the drive access extended, at its intersection with the projected curbline of the intersecting street. Two- way drive accesses shall be a minimum of 24 feet and one-way drive accesses shall be a minimum of 16 feet. c. Drive accesses for all multiple tenant commercial buildings or complexes/centers, or industrial drive accesses shall be set back a minimum of 20 feet from the adjacent property line unless such drive access is approved as a shared drive access. d. Drive accesses to drive-in theaters, stadiums, racetracks, funeral homes or uses generating very heavy periodic traffic conflicts shall be located not closer than 200 feet to any pedestrian or vehicular entrance or exit to a school, college, university, church, hospital, public emergency shelter or other place of public assembly. e. All commercial and industrial drive accesses on arterial streets shall have 15- foot return radii unless otherwise approved by the director of public service. All commercial and industrial drive accesses on other streets may have either return radii or depressed curbs. The minimum radius allowed is four feet. D. Spacing standards for drive accesses. 1. General. a. Consolidation of access points onto public streets, to achieve a distance between access points in excess of the minimum standards in this section, is desired and shall be considered during all levels of site plan review. b. For the purposes of this section public or private access means any street, alley, driveway or other point of vehicular access to a publicly controlled street. c. The distance between public and/or private accesses on a public street shall be measured between the right-of-way line for public accesses and the nearest inside edges of private accesses according to the following distances specified in subsections D.2 and 3 of this section. d. Subsection D of this section does not apply to single-household, duplex or triplex structures on individual lots. 2. Standards for development approved before July 10, 2002. The provisions of this section apply to development proposals receiving preliminary approval by the final decision making body prior to July 10, 2002. a. Distance from intersection. Public or private access distance from street intersections shall be subject to the following minimum dimensions: PROOFS Page 652 of 977 Table 23-1 38.24.090-1 Access Located on Arterial Streets Access Located on Collector Streets Access Located on Local Streets Distances from Intersection Distances from Intersection Distances from Intersection Nearest Intersectin g Street Residen tial District Commer cial/Indu strial District Residenti al District Commer cial/Indu strial District Residen tial District Commerc ial/Indus trial District Arterial 150' 200' 100' 150' 40' 100' Collector 150' 150' 40' 150' 40' 80' Local 100' 150' 40' 100' 40' 80' Note: All distances shall be measured from the inside edge of the access, extended at its intersection with the projected curbline of the intersecting street, to the right-of-way line, along the street frontage right-of-way line. See Figure 18.44.090 in Appendix A to this chapter. b. Distance between public and/or private accesses standards. The distance between public and/or private accesses shall be subject to the following minimum dimensions: Table 23-2 38.24.090-2 Access Located on Arterial Streets Access Located on Collector Streets Access Located on Local Streets Minimum Spacing Resident ial District Commer cial/Indu strial District Resident ial District Commer cial/Indu strial District Residenti al District Commerc ial/Indus trial District Partial access1 80' 150' 60' 80' 40' 60' Full access2 100' 150' 100' 150' 40' 80' Minimum separatio n 60' 100' 60' 80' 40' 60 1Partial access includes right turn in and out only. 2 Full access allows all turn movements, in and out. 3. Standards for development approved after July 10, 2002. This section shall apply to all development receiving preliminary approval after July 10, 2002. These standards apply to the minimum distance between public and/or private accesses and intersections, and the minimum distance between public and/or private accesses and other public and/or private accesses. PROOFS Page 653 of 977 Table 23-3 38.24.090-3 Access Located on Arterial Streets Access Located on Collector Streets Access Located on Local Streets Average Spacing In All Districts In All Districts In All Districts Partial access1 315' 150' 40'3 Full access2 660' 330' 40'3 Minimum separation 315' 150' 40' 1Partial access includes right turn in and out only. 2 Full access allows all turn movements, in and out. 3Accesses on local streets shall be at least 150 feet from an intersection with an arterial. E. Number and location of drive accesses. 1. Single-household uses shall be limited to one drive access per street face, except on properties abutting arterial streets in which case shared accesses, or driveways facilitating the turning of automobiles on-site, shall be required. 2. Notwithstanding any other provisions of this chaptertitle, drive accesses may not be located closer than five feet to any side property line, unless shared access, as defined in section 18.80.277038.42.282, with the adjoining property is approved. This standard does not apply to the shared side property line of townhouses units with adjacent garages using attached driveways. F. Shared drive access. The city desires and encourages sharing access drives, as defined in chapter18.80, BMCarticle 42 of this chapter, between separate parcels. G. Access approval required. All drive accesses shall be approved by the city engineer for width and location. H. Modifications of property access standards. 1. Some of the standards listed in subsections C through E of this section, may be relaxed by the city engineer if it is shown during the development review process that more efficient design can be accomplished without jeopardizing the public’s health, safety and welfare, the intent of this chaptertitle, or the intent of the city’s growth policy. 2. Modifications from access standards shall be approved at the discretion of the city engineer. 3. Commercial developments (including residential complexes for five or more households) which may not be able to meet the requirements of subsections C through E of this section, and are requesting modifications from the standards, shall submit to the city engineer a report certified by a professional engineer addressing the following site conditions, both present and future: a. Traffic volumes; b. Turning movements; c. Traffic controls; PROOFS Page 654 of 977 d. Site design; e. Sight distances; and f. Location and alignment of other access points. 4. Based upon the above data, the city engineer shall determine whether a modification from the required standards is justified and, if so, what alternative requirements will be necessary. (Ord. No. 1645, § 18.44.090, 8-15-2005; Ord. No. 1693, § 14(18.44.090), 2-20-2007) Sec. 38.24.100. Street vision triangle. A. Arterial streets. On corner lots on arterial streets in all districts, no fence, wall or planting in excess of 30 inches above the street centerline grade shall be permitted within a triangular area defined as follows: beginning at the intersection of the projected curblines of the two intersection streets, thence 50 feet along one curbline, thence diagonally to the point 50 feet from the point of beginning on the other curblines, then to the point of beginning. B. Collector and local streets. On corner lots, on collector and local streets, in all districts, no fence, wall or planting in excess of 30 inches above the street centerline grades shall be permitted within a triangular area defined as follows: beginning at the intersection of the projected curblines of two intersecting streets, thence 40 feet along one curbline, thence diagonally to a point 40 feet from the point of beginning on the other curbline, then to the point of beginning. C. Driveways and alleys. At the intersection of each driveway or alley with a street, no fence, wall or planting in excess of 30 inches above the street centerline grade shall be permitted within a triangular area where corners are defined by two points on the right-of-way line, 15 feet on each side of the centerline of the driveway or alley and a point on centerline ten feet outside the right-of-way. Any driveway or alley wider than 30 feet curb to curb at the right-of-way line shall use the vision triangle standard for local streets when intersecting local, collector, or arterial streets. D. Provision for trees in street vision triangle. 1. Single-stem canopy trees are discouraged but may be permitted in street vision triangles as described in this section, provided that mature trees do not significantly affect safe driving conditions and are maintained such that no canopy foliage exists below a height of ten feet above centerline of intersecting streets. 2. Trees which are located in the street vision triangle and which preexisted the adoption of the ordinance from which this chaptertitle is derived may be allowed to remain, provided the trees are trimmed such that no limbs or foliage exist below a height of ten feet above centerline grades of intersecting streets. E. For an illustration of the requirements of this section see Figure 18.44.100 in Appendix A to this chapter. (Ord. No. 1645, § 18.44.100, 8-15-2005; Ord. No. 1693, § 14(18.44.100), 2-20-2007) Sec. 38.24.110. Transportation pathways. A. General. Developers shall install pathways in accordance with this chaptertitle, the growth policy, the most recently adopted long-range transportation plan, any adopted citywide park plan, and any adopted individual park master plan, and shall comply with City of Bozeman Design Specifications. See also sections 18.42.10038.23.100, 18.50.07038.27.070 and 18.50.11038.27.110, BMC. B. Pathway categories. The DRC development review committee (DRC) shall be responsible for determining whether a pathway is a transportation pathway or a recreation PROOFS Page 655 of 977 pathway. For subdivision and planned unit development proposals, this determination shall be made during the preapplication process. 1. Transportation pathways. Developers shall install transportation pathways, to provide adequate multimodal transportation facilities within the development, as part of the required development improvements. Transportation pathways shall be ADA accessible, and include the following types of facilities: a. Sidewalks; b. On-street bike lanes and bike routes; c. Boulevard trails; and d. Class I trails; (1) With the exception of trail corridors within required watercourse setbacks, corridors for Class I trails shall be dedicated to the city. The dedicated trail corridor shall be at least 25 feet in width to ensure adequate room for the construction, maintenance and use of the trail. Transportation trail corridors cannot be used to satisfy park land dedication requirements; e. Pathways that connect community or neighborhood commercial nodes by a reasonably direct route; or f. Pathways that connect major residential, employment, educational, or other service nodes by a reasonably direct route. 2. Recreation pathways. For the definition of recreation pathways, please see § 18.50.110section 38.27.110.B, BMC. C. Related facilities. If pathways are proposed or required, stream crossings and other similar improvements, where necessary, shall be installed. Bridge design and construction shall comply with city specifications and standards, and shall be submitted to the planning department for review and approval. Any necessary permits for bridges shall be obtained by the developer from the appropriate agency prior to installation of the stream crossings. D. Trail requirements. The class of the trail shall be determined by the recreation and parks advisory board, and the trail shall be designed and constructed according to any adopted park or recreation plan or other city specifications and standards. Trails and bridges must meet Americans with Disabilities Act (ADA) specifications for recreational facilities and maintain a natural appearance. Trail plans and specifications shall be submitted to the planning department for review and approval prior to installation. E. Bikeways and boulevard trails. Wherever new streets are to be developed as a result of a development proposal, or wherever existing streets or roads are required to be improved, the developer may be required to incorporate striped bicycle lanes along the shoulder, meeting current AASHTO standards, into the design and construction or improvement of the streets or roads. The decision to install a boulevard trail instead of a bike lane shall be based on the most recently adopted long-range transportation plan. The city commission may consider exceptions based on the particular characteristics of a transportation corridor and recommendations from the DRC and the Bozeman Area Bicycle Advisory Board. Boulevard trails and bike lanes shall be designed and constructed in accordance with the most recently adopted long-range transportation plan, and any other applicable city specifications and standards. F. Pathway maintenance. Trails within and adjacent to the proposed development, as well as off-street pathways (i.e., sidewalks and boulevard trails) along external development streets, shall be maintained (including snow removal) in accordance with an approved PROOFS Page 656 of 977 maintenance plan by the developer until 50 percent of the lots within the development area are sold. Thereafter the property owners' association shall be responsible for maintenance. The property owners' association may establish an improvement district to collect assessments to pay for the maintenance. G. Pathway easements. Where pathways cross private land or common open space, the proper public access easements shall be provided. Public access easements for pathways shall be at least 25 feet wide. H. Trails in required watercourse setbacks. Trail corridors within required watercourse setbacks shall not be dedicated to the city, and such land may not be used to satisfy park land dedication requirements. When publicly accessible trails are established within required watercourse setbacks, public access easements at least 25 feet in width shall be provided to ensure adequate room for the construction, maintenance and use of the trail. I. Corridors. Corridors for transportation pathways shall not be used to satisfy park land dedication requirements. (Ord. No. 1645, § 18.44.110, 8-15-2005; Ord. No. 1693, § 14(18.44.110), 2-20-2007; Ord. No. 1796, § 6, 1-3- 2011) Sec. 38.24.120. Public transportation. A. Street design. All interior and exterior development streets that are designated as transit routes shall be designed to accommodate transit vehicles and facilities. Transit considerations for street design include but are not limited to: 1. Pavement design; 2. Lane width; 3. Corner radii; 4. Street grade; 5. Curb height; and 6. Right-of-way width. B. Other transit considerations. Developments with designated transit routes shall be designed with consideration to the following requirements: 1. Spacing of transit stops. All lots within the development shall be not further than one-half mile from a designated transit route; 2. Length of transit stops. Developments shall be designed to accommodate a bus length of at least 90 feet on designated transit routes; 3. Distance from intersection. Transit stops shall be at least five feet from pedestrian crosswalks or the end of corner radii; 4. Driveway conflicts. Lots and lot accesses shall be configured to avoid conflicts with transit stops; and 5. Lighting. Subdivision street lighting shall be configured to provide adequate lighting at transit stops. C. Transit facilities. If any streets on the interior or exterior of the development are designated as transit routes, the city commission may require the developer to provide transit facilities such as transit stop signage, benches, bike racks, lighting and bus shelters. (Ord. No. 1645, § 18.44.120, 8-15-2005; Ord. No. 1693, § 14(18.44.120), 2-20-2007) PROOFS Page 657 of 977 ARTICLE 25. PARKING Sec. 38.25.010. General provisions. A. Parking is one part of the overall multimodal transportation system. Individual choice of travel mode and development characteristics influences the need for parking. The purpose of this chapterarticle in requiring parking spaces is ensure provision of off-street motor vehicle parking, bicycle parking, and other transportation access facilities in rough proportion to the generalized parking and transportation demands of different land uses which locate at a site. Some sites such as those that are located in close proximity to transit, have good access to pedestrian facilities or have off-set peak uses may require less on-site parking. The purpose of these standards is to provide functional parking areas adequate to the needs of users, create shaded areas within parking lots, reduce glare and heat build-up, reduce stormwater surges, provide visual relief within paved parking areas, emphasize circulation patterns, avoid the negative impacts associated with spillover parking into adjacent neighborhoods, while at the same time avoiding the negative environmental and urban design impacts that can result from excessive parking lots and other vehicular use areas, and enhance the visual environment. The provisions of this chapterarticle are also intended to help protect the public health, safety, and general welfare by: helping avoid and mitigate traffic congestion; encouraging multimodal transportation options and enhanced pedestrian safety; providing methods to reduce the amount of impervious surfaces in parking areas and adequate drainage structures in order to reduce the environmental impacts of stormwater runoff; encouraging paving or alternate means of surfacing of parking areas in order to address dust abatement and improve air quality; and providing flexible methods of responding to the transportation and access demands of various land uses in different areas of the city. In achieving these purposes this chapterarticle interacts with the requirements of chapter18.48, BMCarticle 26 of this chapter. The design of off-street parking shall primarily be the responsibility of the developer and shall consider traffic circulation, intended landscaping, pedestrian access and circulation, and other purposes of this chaptertitle. 1. Floor area. a. The term "floor area," for the purpose of calculating the number of off-street parking spaces required, shall mean 85 percent of the gross floor area, as defined in chapter18.80, BMCarticle 42 of this chapter. However, at the election of the property owner, floor area shall mean the gross floor area, as defined in chapter18.80, BMCarticle 42 of this chapter, minus the following: (1) Window display areas; (2) Storage areas; (3) Areas used for incidental repair of equipment used or sold on the premises; (4) Areas occupied by toilets and restrooms, kitchens or break rooms; (5) Areas occupied by public utility facilities; (6) Areas occupied by dressing rooms, fitting or alteration rooms incidental to the sale of clothing; (7) Areas occupied by stairways and elevators; (8) Corridors connecting rooms or suites of rooms; and (9) Enclosed areas used for parking vehicles. Such election shall be made in writing to the planning director, shall be signed and acknowledged by the owner, and shall be filed with the planning PROOFS Page 658 of 977 director prior to the issuance of a building permit for such building. The owner shall also be responsible for certifying other information upon which parking requirements may be based, such as seats, and the number of employees on maximum working shift. b. Where applicable, the number of spaces required in section 18.46.04038.25.040 will be the total of the spaces required for the component activities of certain uses, each calculated separately. 2. Change of use or occupancy of buildings. With any change of use or occupancy of any building or buildings an occupancy permit is required. When the change in use or occupancy requires more than a ten percent cumulative increase in parking over that required with the initial building construction, an occupancy permit shall not be issued until such additional parking spaces, in the amount required by this chaptertitle, are provided for. 3. Improvement schedule. All parking area improvements to include surfacing, drainage, walkways, lighting, landscaping, screening, traffic control, etc., shall be installed according to the provisions of chapter18.74, BMCarticle 39 of this chapter. 4. Stacking of off-street parking spaces. Required parking spaces shall be located so as to preclude stacking of off-street parking spaces, with the exception of single- household dwellings and individual townhouse and condominium units, and duplexes with physically separated individual driveways. Physical separation is provided when at least one of these options are provided: individual garage doors for each interior parking space, a vegetated planter not less than four feet in width between the parking spaces in the driveway area, or a wall not less than four feet in height and length is provided between the parking area in the driveway and dividing the garage entrance. Generally, not more than two cars may be stacked. When stacking is allowed, not more than two vehicles may be stacked within an enclosed parking area. 5. No parking permitted in required front or side yards. Required parking spaces shall not be located in any required front or side yard, except that detached single- household dwellings and townhouses, and duplexes with physically separated individual driveways, may have one space located within a driveway area in the required front yard for each parking space located directly in front of the driveway area and outside of the required front yard. 6. Parking is permitted within required rear yards. (Ord. No. 1645, § 18.46.010, 8-15-2005; Ord. No. 1693, § 15(18.46.010), 2-20-2007; Ord. No. 1761, exh. I(18.46.010), 7-6-2009; Ord. No. 1769, exh. H(18.46.010), 12-28-2009) Sec. 38.25.020. Stall, aisle and driveway design. A. Parking dimensions. The following shall be the minimum parking space dimensions: See also Figure 18.46.020, Appendix A to this chapter. Table 24-1 38.25.020 Width1 Length Angle Standard Disabled6 Compact5 Standard Disabled Compact5 Aisle Width 90 9' 13' 8' 18/202 18/202 16' 263 PROOFS Page 659 of 977 60 9' 13' 8' 18/202 18/202 16' 18/234 45 9' 13' 8' 18/202 18/202 16' 15/234 Notes: 1As measured by a line perpendicular to the stall line at a point on the outside end of the stall, except when the stall is on the inside edge of a curve, in which case the point of measurement shall be on the inside end of the stall. 218 feet if measured from a curb on the inside edge of the stall; 20 feet if measured from a painted line on the inside edge of the stall. Stall length variations are subject to approval by the city engineer. 3For 90-degree parking, aisles are two-way; 4First number refers to one-way traffic and the second number to two-way traffic. If the aisle is needed as a fire lane, a 20-foot minimum is required. 5Unless otherwise approved, all parking spaces shall be of standard width and length. In any parking facility containing 20 or more parking spaces, a maximum of 25 percent of the provided parking spaces may be reduced in size for small cars, provided these spaces shall be clearly identified with a sign permanently affixed immediately in front of each space containing the notation, "Compacts Only." Where feasible, all small car spaces shall be located in one or more contiguous areas and/or adjacent to ingress and egress points within parking facilities. Location of compact car parking spaces shall not create traffic congestion or impede traffic flows. 6The first disabled accessible parking stall shall meet the standards of section 18.46.04038.25.040.A.4.a. 7If parking stalls within the interior of an individual residential garage are counted toward a development's required parking needs, then they shall meet the standard parking stall width of nine feet and the standard parking stall length of 20 feet with a minimum of one foot clear on all exterior sides of the stall. B. Within structures. The off-street parking requirements may be furnished by providing spaces so designated within the principal building or accessory parking structure. However, no building permit shall be used to convert the parking structures into a dwelling unit or living area or other activity until other adequate provisions are made to comply with the required off-street parking provisions of this chaptertitle. C. Circulation between bays. Except in the case of one- to three-household dwellings and individual townhouse units, parking areas shall be designed so that circulation between parking bays occurs within the designated parking lot and does not depend upon a public street or alley. Turning radii between bays and additional backup length for dead end aisles shall conform to requirements of the Uniform International Fire Code333. D. Backing requirements. All required parking must have adequate back-up maneuverability as specified in Table 24-1 38.25.020. The aisle width calculation may incorporate the width of the public right-of-way. Except in the case of one- to four-household dwellings and individual townhouse-style units with individual garages, parking area design which requires backing into the public street is prohibited. With the exception of residential development, parking area design which requires backing into the public alley is prohibited. E. Parallel parking spaces. Parallel parking spaces shall be a minimum of 24 feet in 333 Should Uniform Fire Code be changed to International Fire Code? Yes. PROOFS Page 660 of 977 length and seven feet in width measured from the inside edge of a curb or the inside edge of the asphalt if curbing is not present. F. Surfacing. Except for one-household development on individual lots, all areas intended to be utilized for permanent parking space and driveways shall control dust and drainage. All proposed parking areas and driveway improvements shall require a grading and drainage plan approved by the city engineer. Areas shall be paved with concrete or asphaltic concrete or approved pavers; or an alternative surfacing method such as pervious pavement may be used subject to review and approval by the city engineer. Surfacing methods which minimize stormwater runoff and provide for functional parking and circulation are encouraged. 1. However, paving shall not be required for permitted and conditional uses in the R-S zoning districts when all of the following circumstances exist: a. The use is required to provide fewer than 15 parking spaces and no loading spaces under the provisions of this section; b. The lot or tract on which the use is located is not adjacent to a paved street or road; and c. The applicant shall enter into an improvements agreement with the city agreeing that the lot shall be paved within nine months of the time an adjacent roadway is paved. G. Striping. All parking stalls shall be marked with white or yellow painted lines not less than four inches wide, except for one- to three-household dwellings and individual townhouse units. An exception to this requirement may be approved by the city when the striping would otherwise be applied to an area that does not have a permanent and durable wearing surface. H. Lighting. Any lighting used to illuminate an off-street parking area shall comply with the lighting standards of section 18.42.150, BMC38.23.150. I. Signs. No sign shall be so located which restricts the sight lines and orderly operation and traffic movement within any parking area. All signs shall conform to the requirements of chapter 18.52, BMCarticle 28 of this chapter. J. Parking lot curbing. 1. All open off-street parking areas and driveways shall have perimeter concrete curb around the entire parking lot, including driving access ways, except for individual townhouse units and one- to three-household dwellings. Continuous concrete curbing shall be built according to standards provided by the city engineer. Unless otherwise approved, the perimeter curb shall be six inch by six inch concrete. 2. Concrete pindown wheel stops may be permitted as an alternative to continuous concrete curbing in front of parking spaces which front on the perimeter of the parking lot. However, continuous concrete curbing as described above shall be provided in all situations where deemed necessary by the city engineer to control drainage and soil erosion. 3. Alternative perimeter treatment may be permitted subject to the approval of the city engineer. 4. Requirements for perimeter curbing shall not preclude opportunities for shared access between adjacent parking lots. K. Protruding vehicles. All on-site parking stalls which abut property lines shall be designed and constructed such that parked vehicles shall not protrude over property lines. L. Pedestrian facilities in parking lots. Concrete sidewalks a minimum of three feet in PROOFS Page 661 of 977 width shall be provided between any existing or proposed building and adjacent parking lot. Where sidewalk curbs serve as wheel stops, an additional two feet of sidewalk width is required. M. Snow removal storage areas. Snow removal storage areas shall be provided sufficient to store snow accumulation on site. Such areas shall not cause unsafe ingress/egress to the parking areas, shall not cause snow to be deposited on public rights-of-way, shall not include areas provided for required parking access and spaces, and shall not be placed in such a manner as to damage landscaping. All snow removal storage areas shall be located and designed such that the resultant stormwater runoff is directed into landscaped retention/detention and water quality improvement facilities as required by the engineering department, or in compliance with any adopted storm drainage ordinance or best practices manual. N. Parking and stacking for drive-in/drive-through facilities. Required parking and stacking spaces for waiting automobiles shall provide a minimum of two stalls and six spaces for stacking per lane unless a traffic summary shows that fewer spaces may be required. These spaces shall not in any manner inhibit on-site or off-site vehicular circulation. O. Ownership/leasehold. Required parking lots shall be owned or leased by the owner or lessee of the building or use being served by such parking. Such parking lots shall be maintained as a parking lot so long as the building and/or use served is in operation or until another approved parking area is established for such building or use. P. Stormwater drainage. Stormwater drainage from parking lots shall be directed into landscaped detention/retention facilities and water quality improvement facilities as required by the engineering department, or in compliance with any adopted storm drainage ordinance and/or best practices manual adopted by the city. Q. Mechanical automobile lifts. Mechanical automobile lifts may be used to meet required parking when the mechanical automobile lift design allows for access to a specific car on demand. Parking spaces within the lift may be counted towards the required parking requirement. The mechanical automobile lift shall be fully enclosed in a structure. (Ord. No. 1645, § 18.46.020, 8-15-2005; Ord. No. 1693, § 15(18.46.020), 2-20-2007; Ord. No. 1761, exh. I(18.46.020), 7-6-2009; Ord. No. 1769, exh. H(18.46.020), 12-28-2009) Sec. 38.25.030. Maintenance of parking areas. A. It shall be the joint and separate responsibility of the lessee and owner of the principal use, uses or building to maintain in a neat and adequate manner, the parking space, accessways, striping, landscaping and required fences or screening. 1. Use of required parking areas for parking only. Required off-street parking spaces in any district shall not be utilized for open storage, sale or rental of goods, storage of inoperable vehicles, except when permitted as a temporary use. 2. Parking spaces identified and maintained. All residential occupancies shall provide required off-street parking spaces. When enclosing a carport or garage for storage or living purposes, an affidavit shall be submitted to the planning director identifying the required parking spaces necessary to comply with §18.46.040, BMCsection 38.25.040. (Ord. No. 1645, § 18.46.030, 8-15-2005; Ord. No. 1693, § 15(18.46.030), 2-20-2007; Ord. No. 1761, exh. I(18.46.030), 7-6-2009; Ord. No. 1769, exh. H(18.46.030), 12-28-2009) Sec. 38.25.040. Number of parking spaces required. A. The following minimum number of off-street, paved parking spaces for motor vehicles and bicycles shall be provided and maintained by ownership, easement and/or lease for and during the life of the respective uses hereinafter set forth. When calculation of the required PROOFS Page 662 of 977 parking results in a fraction of a parking space being required the fractional space is not required to be provided. 1. Residential uses. a. Minimum requirements. The number of spaces shown in Table 24-2 38.25.040-1 shall be provided subject to the adjustments allowed in this subsection 1. The number of disabled parking stalls as required by Table 24-6 38.25.040-6 shall be provided from the minimum number of required parking stalls. All site plans submitted for permit purposes shall identify parking space allocations. Fees may be charged by the landowner for the use of required parking spaces. (1) One parking space for each 24 uninterrupted linear feet of available street frontage usable for on-street parking directly adjacent to a lot may be deducted from the total parking spaces required for a development. The number of on-street spaces calculated shall not exceed the number of dwellings on the lot. The width of drive accesses, designated nonparking areas, vision triangles, and similar circumstances shall not be considered to be available for the purpose of on-street parking space. Table 24-2 38.25.040-1 Dwelling Types Parking Spaces Required per Dwelling Accessory dwelling unit 1 Lodginghouse 0.75 spaces per person of approved capacity Efficiency unit 1.25 One-bedroom 1.5 Two-bedroom 2 Three-bedroom 3 Dwellings with more than three bedrooms 4 Group homes and community residential facilities 0.75 spaces per person of approved capacity1 Bed and breakfast 1 space/rental unit Manufactured home 2 All types of dwellings within the B-3 district 1 1A facility may request to provide fewer parking spaces if they provide evidence that the residents are prohibited from operating motor vehicles. Under no condition shall less than two parking spaces be provided. If the use of the facility is altered to serve a different population who may operate motor vehicles, then the additional required parking shall be provided before the change in use may occur. b. Adjustments to minimum requirements. PROOFS Page 663 of 977 (1) Affordable housing. When calculating the amount of required parking for affordable housing, as defined in chapter18.80, BMCarticle 42 of this chapter, if the project is guaranteed for use as affordable housing for a minimum period of 20 years and the use as affordable housing is subject to long term monitoring to ensure compliance and continued use as affordable housing, Required parking spaces shall be calculated based on number of bedrooms outlined in Table 24-2 38.25.040-1, but shall not exceed two spaces per unit. (2) Residential uses in mixed-use projects. In order to utilize this section, the long term availability of the nonresidential parking spaces upon which the use of this section was based shall be ensured to the residents of the project. For the purpose of this section a building is considered mixed-use if the nonresidential portion of the building is at least one-quarter of the gross square feet not used for parking. Residences in mixed-use buildings may count on-street parking per subsection 18.46.0401.a.(1) of this section even if the area is subject to occupancy time limits. The use of this section does not preclude the use of other sections of this chaptertitle which may have the effect of reducing the required amount of parking. When calculating the amount of required parking for residential uses within a mixed-use project the amount of parking may be reduced subject to Table 24-3 38.25.040-2. Table 24-3 38.25.040-2 Reduction Allowed Ratio of Required Nonresidential to Required Residential Parking Spaces 50% Greater than 1:1 but less than 3:1 100% Equal to or greater than 3:1 (3) A car-sharing agreement meeting the criteria established by the planning director may be used to meet the required number of parking spaces. To use this option the development must have more than five dwelling units. Each vehicle provided through a car sharing agreement counts as required parking at a ratio of one dedicated car- share space to five standard spaces, up to a maximum of 50 percent of the total required residential parking. (4) Transit availability. A residential development subject to site plan review may take a ten percent reduction in required parking spaces where the development is within 800 feet of a developed and serviced transit stop. For the purpose of this subsection a transit stop is eligible when it has a shelter installed which meets the standards of and is approved by the transit provider, and service is provided on not less than an hourly schedule a minimum of five days per week. 2. Nonresidential uses. a. Minimum requirements. The number of spaces shown in Table 24-4 38.25.040-3 shall be provided subject to the adjustments allowed by this chapterarticle. Spaces are not required to be provided free to the user. The required number of disabled parking stalls required by the Americans with PROOFS Page 664 of 977 Disabilities Act Accessibility Guidelines (ADAAG) shall be provided shall be provided from the minimum number of required parking stalls. Table 46-6 38.25.040-6 presents the most common requirement for accessible spaces. Accessible spaces count towards satisfying minimum parking requirements. All site plans submitted for permit purposes shall identify parking space allocations. When a use is not included in Table 24-3 38.25.040-2, the planning director shall determine the appropriate classification for the purpose of required parking. b. Maximum parking. Provision of parking spaces in excess of 125 percent of the minimum number of spaces required for the net floor area in this subsection 18.46.0402, BMC is not permitted. Table 24-4 38.25.040-3 Use Type Off-Street or Off-Road Parking Spaces Required Automobile sales 1 space per 200 square feet of indoor floor area; plus 1 space per 20 outdoor vehicle display spaces Automobile service and/or repair station 2 spaces per service stall, but no less than 4 spaces Automobile washing establishment Automatic drive-through 3 spaces or 1 for each employee on maximum shift; plus stacking space Self-service 2 spaces per stall not including washing or drying spaces Bank, financial institutions 1 space per 300 square feet of floor area Bowling alley 2 spaces per alley; plus 2 spaces per billiard table; plus Church 1 space per six persons of maximum occupancy load (as identified in the International Building Code) for main assembly hall, public assembly areas and classrooms Community or recreation center 1 space per 200 square feet of floor area Health and exercise establishment 1 space per 200 square feet of floor area; plus 3 spaces per court Day care centers 1 space per staff member plus 1 space per 15 children permitted Elderly (senior citizens) housing 1 space per unit Furniture stores over 20,000 square feet 3 spaces per 1,000 square feet of floor area PROOFS Page 665 of 977 Golf courses 1 space per 200 square feet of main building floor area; plus 1 space for every 2 practice tees in driving range; plus 4 spaces per each green in the playing area Hospitals 1 space per bed. Medical and dental offices 4 spaces for each full-time equivalent doctor or dentist; plus 1 space for each full-time equivalent employee Manufacturing and industrial uses 1 space per 1,000 square feet of floor area, plus 1 space per 2 employees on maximum working shift Motels, Hotels 1.1 spaces per each guest room; plus 1 space per employee on maximum shift; plus spaces for accessory uses as follows: Restaurants, bars, dining rooms 1 space per 60 square feet of floor area Commercial area 1 space per each 400 square feet of floor area Public assembly areas 1 space for each 5 seats based upon design capacity, except that total off- street or off-road parking for public assembly may be reduced by 1 space for every 4 guest rooms Nursing homes, rest homes or similar uses 4 spaces; plus 1 space for each 3 beds; plus 1 space for each employee on maximum shift Offices (except medical and dental) 1 space per 250 square feet of floor area Outdoor sales (plant nurseries, building materials, equipment rental and similar) 1 space per 500 square feet of sales and/or display area. The size of the sales and/or display area shall be determined on a case-by-case basis. Restaurants, cafes, bars and similar uses 1 space per 50 square feet of indoor public serving area; plus 1 space per 100 square feet of outdoor (patio) area Retail store and service establishments 1 space per 300 square feet of floor area Sales sites; model homes 1 space per 250 square feet of model floor areas; plus 1 space per employee Schools Elementary and/or junior 1.5 spaces for each classroom, library, PROOFS Page 666 of 977 high lecture hall and cafeteria; plus 1 space for each 3 fixed seats in the area of public assembly, or 1 space for each 25 square feet of area available for public assembly if fixed seats are not provided Senior high 1.5 spaces for each classroom or lecture hall; plus 1 space per each 5 students; plus 1 space for each nonteaching employee; plus 1 space per each 3 fixed seats in the area of public assembly, or 1 space per 25 square feet of area available for public assembly if fixed seats are not provided Business or similar school 1 space for each 1.5 students Theater, auditorium or similar 1 space per 4 seats based upon place of assembly design capacity Warehousing, storage or handling of bulk goods 1 space per 1,000 square feet of floor area devoted to storage of goods; plus appropriate spaces to support accessory office or retail sales facilities at 1 space per 350 square feet of floor area c. Adjustments to minimum requirements. To implement the city's adopted growth policy, adjustment of parking requirements within certain areas of the city is desired. Use of this section shall not be considered as joint use of parking or off-site parking regulated by sections 18.46.05038.25.050 and §18.46.060, BMC38.25.060 nor shall the use of this section preclude the use of other sections of this chaptertitle which may have the effect of reducing the required amount of on-site parking. More than one adjustment may apply. Multiple adjustments are added together to modify the minimum required parking from Table 46-4 38.25.040-3 in a single operation. Multiple adjustments are not applied sequentially. (1) Neighborhood commercial. Within the B-1 and R-O zoning districts implementing a small scale Community Commercial Mixed Use growth policy designation or the B-3 zoning district, the parking requirements for nonresidential uses may be reduced. Table 46-5 38.25.040-4 Use Allowable Reduction Retail 40 percent Restaurant 50 percent Office 20 percent All Others 30 percent PROOFS Page 667 of 977 (2) Community commercial. Within zoning districts lying within a commercial node, as defined in chapter18.80article 42 of this chapter, the parking requirements for nonresidential uses may be reduced. Table 24-6 38.25.040-5 Use Allowable Reduction Retail 20 percent Restaurant 30 percent Office 10 percent All others 10 percent (3) Transit availability. Required parking may be reduced by ten percent in circumstances where the development is within 800 feet of a developed and serviced transit stop. For the purpose of this subsection a transit stop is eligible when it has publicly available cover from weather approved by the transit provider to be equivalent to a transit shelter, and service is provided on not less than an hourly schedule a minimum of five days per week. (4) Structured parking. An additional 15 percent reduction may be taken when the site is within 800 feet of a parking structure of at least 200 spaces, which is available to the general public, and for which a fee for parking is charged. (5) The first 3,000 gross square feet of a nonresidential building within the B-3 district is not required to provide parking. 3. Exceptions to these parking requirements. Because some situations (i.e., existing lots which have no landscaping, irregular lots, lots with topographic difficulties, etc.) would benefit from an alternative to the required maximum parking areas; because the community's appearance could benefit from additional landscaping, streetscaping and sculptural elements; and because parking exceptions and/or landscaping would encourage development within existing city boundaries; the following alternatives may be permitted. These alternatives may be proposed by the developer for review by the ADR staff. Such proposals may be approved based on a determination that such alternatives meet the following requirements and will not create a congested on-street parking situation in the vicinity of the proposal. a. Landscaping in lieu of parking. Except in the B-3 district, property owners have the option of requesting the deletion of up to five required spaces or ten percent of the required parking spaces, whichever is less, if 350 square feet of landscaping, trees or streetscaping is installed on the property for each space so deleted. This shall not decrease the amount of landscaping that would have been required with full parking, but shall be in addition to such landscaping. This option shall be approved by the ADR staff. These improvements must be placed in the public right-of-way or yards directly facing the right-of-way. b. Cash-in-lieu modifications to parking requirements in B-3 district. Where all or part of the required parking spaces can not be provided for a proposed use in the B-3 District, either through ownership or lease of the necessary land, PROOFS Page 668 of 977 the petitioner may satisfy the parking requirements by providing an equivalent cash-in-lieu payment according to the following provisions: (1) No building permit shall be issued, nor shall any use of property be initiated, unless a satisfactory cash-in-lieu payment is received by the department of finance; (2) The parking commission shall review and consider all requests for cash-in-lieu payments and furnish a written and dated certificate, signed by the parking commission chairman, authorizing cash-in-lieu payments. A copy of this certificate shall be presented to the chief building official and planning director before a building permit is issued or the use instituted; (3) For each required parking space not provided, payment shall be made to the city finance department as specified by standard payment requirements established by the parking commission; (4) All real property assessed by special improvement district (SID) No. 565, or other similarly adopted improvement districts designed to provide additional parking spaces within the B-3 district, shall not be required to provide additional parking spaces beyond those required at the time of the SID adoption, provided the use of the real property and improvements remains unchanged from the initial assessments of SID No. 565, or other similarly adopted improvement districts; (a) In the event that a new use or an expansion is initiated on any portion of real property or improvements subsequent to the assessments for SID No. 565 or other similarly adopted improvement districts, then parking space requirements shall be satisfied prior to initiation of those new or expanded uses. 4. Disabled accessible parking spaces. a. Disabled parking spaces shall be provided subject to federal standards enumerated in the Americans with Disabilities Act (ADA) dated January 26, 1992, and Federal Standard 795, (Uniform Federal Accessibility Standards) dated April 1, 1988, chapter 4 (Accessible Elements and Spaces: Scope and Technical Requirements). Each disabled parking space shall also be accompanied by a sign stating "Permit Required $100.00 Fine". See Figure 18.46.040.D in Appendix A. b. All parking lots and facilities shall be subject to current International Building Code guidelines for accessibility, and shall contain a minimum number of disabled accessible parking spaces as set forth in the ADAAG. The Table 38.25.040-6 below addresses the majority of circumstances: Table 24-7 38.25.040-6 Total Parking in Lot Required Minimum Number of Accessible Spaces Total Parking in Lot Required Minimum Number of Accessible Spaces 1 to 25 1 201 to 300 7 26 to 50 2 301 to 400 8 PROOFS Page 669 of 977 51 to 75 3 401 to 500 9 76 to 100 4 501 to 1000 2 percent of total 101 to 150 5 1001 and over 20 plus 1 for each 100 over 1000 151 to 200 6 (1) The first accessible parking stall provided, and one in every eight accessible spaces provided thereafter, shall have an aisle eight feet wide (rather than five feet) and shall be signed "van accessible." (2) Accessible spaces shall be located as near as practical to a primary entrance and shall be designated as those spaces closest to the primary accessible entrance to a facility. Parking spaces and access aisles shall be level with slopes not exceeding 1:50 in all directions and shall be maintained in an ice- and snow-free condition. (3) The minimum number of accessible parking spaces shall be in addition to any other required parking spaces. c. All accessible parking spaces shall be designated as reserved for the disabled by a sign showing the symbol of accessibility at each space. Such signs shall not be obscured by a vehicle parked in the space. Signs and symbols painted on the pavement as the only means of identification do not meet this requirement. See Figure 18.46.040.D in Appendix A to this chapter. (1) Raised signs shall be located at a distance no greater than five feet from the front of each accessible space and shall be subject to review and approval by the planning department. d. Provision of an accessible path of travel from each disabled accessible parking space to the entrance of the facility shall include ramped access where necessary and an unencumbered minimum three-foot wide walk, sidewalk or ramps. The accessible path of travel shall be a paved, smooth surface, free of defects or design features that would restrict, inhibit or unreasonably impede the movement of a physically disabled individual. (1) The least possible slope shall be used for any ramp. The maximum slope of a ramp in new construction shall be 1:12, cross slopes shall not exceed 0.25 inch per foot. The maximum rise for any run shall be 30 inches. e. Exceptions: Group R occupancies, per the most recently adopted International Building Code definition, containing three or less dwelling units or congregate residences accommodating ten persons or less. f. Prior to occupancy, the applicant or their representative shall certify compliance with the requirements of this subsection 4. 5. Bicycle parking required. All site development, exclusive of those qualifying for sketch plan review per chapterarticle 18.34, BMC19 of this chapter, shall provide bicycle parking facilities to accommodate bicycle-riding residents and/or employees and customers of the proposed development. The number of bicycle parking spaces shall be at least ten percent of the number of automobile parking stalls required by Tables 24-2 and 24-4 before the use of any special exception or modification but shall in no case be less than two. PROOFS Page 670 of 977 a. Bicycle parking facilities will be in conformance with standards recommended in the city's long range transportation plan. b. Required bicycle parking shall be provided in a safe, accessible and convenient location. Directional signage shall be installed when bicycle parking facilities are not readily visible from the street, sidewalk, or main building entrance. Installation of bicycle parking shall allow for adequate clearance for bicycles and their riders. c. Bicycle parking may be provided in a common area to serve multiple buildings. The common area must be within 100 feet of each served building. d. Covered bicycle parking is encouraged. (Ord. No. 1645, § 18.46.040, 8-15-2005; Ord. No. 1693, § 15(18.46.040), 2-20-2007; Ord. No. 1761, exh. I(18.46.040), 7-6-2009; Ord. No. 1769, exh. H(18.46.040), 12-28-2009) Sec. 38.25.050. Joint use of parking facilities. A. Up to 80 percent of the nonresidential parking spaces required by this chapterarticle may be provided through shared parking. B. Shared parking may be requested if parking can be provided to serve two or more individual land uses without conflict or encroachment. The planning director may make a determination for shared parking arrangements based on a traffic survey or traffic impact study for the site based on the following: 1. At a minimum, a traffic survey or traffic impact study must examine for all potential uses: trip generation, hours of operation, quantity of required parking spaces, quantity of spaces that will be filled during peak hour periods, and any unusual events that may occur during the year that will exceed the average parking requirement. The study must indicate that adequate parking exists to meet the demand of potential uses served as well as meet technical requirements as specified by the planning director. 2. The parties sharing parking spaces shall enter into a long-term joint use agreement revocable with city commission approval, running with the term of the designated uses. C. Conditions required for joint use. 1. The building or use for which application is being made to utilize the off-street parking facilities provided by another building or use shall be located within 1,000 feet of such parking facilities as measured by the route of travel from the nearest parking space to the commonly used entrance of the principal use served; 2. The applicant shall show that there is no substantial conflict in the operating hours of the two buildings or uses for which joint use of off-street parking facilities is proposed; and 3. A properly drawn legal instrument, executed by the parties concerned for joint use of off-street parking facilities, duly approved as to form and manner of execution by the city attorney, shall be filed with the city clerk and recorded with the county clerk and recorder. (Ord. No. 1645, § 18.46.050, 8-15-2005; Ord. No. 1693, § 15(18.46.010), 2-20-2007; Ord. No. 1761, exh. I(18.46.050), 7-6-2009; Ord. No. 1769, exh. H(18.46.050), 12-28-2009) Sec. 38.25.060. Off-site parking. A. Any off-site parking which is used to meet the requirements of this chaptertitle shall PROOFS Page 671 of 977 be reviewed by the planning director for compliance with this chaptertitle and shall be subject to the following conditions listed below: 1. Off-site parking shall be developed and maintained in compliance with all requirements and standards of this chaptertitle; 2. Reasonable continuous pedestrian and vehicle access from off-site parking facilities to the use being served shall be provided; 3. Off-site parking for one-household and two-household dwellings shall not be permitted; 4. Off-site parking for multiple household dwellings shall not be located more than 100 feet from any commonly used entrance of the principal use served; 5. Off-site parking for nonresidential uses shall not be located more than 1,000 feet from the entrance of the principal use. The distance shall be measured on a pedestrian route of travel such as a sidewalk or city standard trail from the nearest parking space to the entrance of the principal use served; and 6. Any use which depends upon off-site parking to meet the requirements of this chaptertitle shall maintain ownership or provide evidence of a long-term lease agreement, revocable with city commission approval, running with the term of the designated use, for parking utilization of the off-site location. (Ord. No. 1645, § 18.46.060, 8-15-2005; Ord. No. 1693, § 15(18.46.060), 2-20-2007; Ord. No. 1761, exh. I(18.46.060), 7-6-2009; Ord. No. 1769, exh. H(18.46.060), 12-28-2009) Chapter 18.48. LANDSCAPING ARTICLE 26. LANDSCAPING Sec. 38.26.010. Purpose and intent. A. Purpose and intent. The process of development, with its alteration of the natural topography and vegetation, and creation of impervious cover can have a negative effect on the ecological balance of an area by causing or accelerating the processes of runoff, erosion and sedimentation. The economic base of Bozemanthe city can and should be protected through the preservation and enhancement of the area’s unique natural beauty and environment. Recognizing that the general objectives of this chapterarticle are to promote and protect the health, safety and welfare of the public, these landscaping regulations are adopted as part of this chaptertitle for the following specific purposes: 1. To aid in stabilizing the environment’s ecological balance by contributing to the process of air purification, oxygen regeneration, groundwater recharge, stormwater runoff retardation, and improvement of water quality, while at the same time aiding in noise, glare and heat abatement; 2. To provide visual buffering between land uses of differing character by placing screening vegetation; 3. To enhance the beauty of the city by expanding and strengthening the urban forest and providing a diversity of vegetation within the city; 4. To protect the character and stability of residential, business, institutional and industrial areas by establishing minimum landscaping standards; 5. To preserve the value of land and buildings by protecting and enhancing the aesthetic character of the community; 6. To conserve energy by providing windbreaks, shade and temperature moderation; PROOFS Page 672 of 977 7. To retard the spread of noxious weeds by encouraging a vigorous desirable plant community within the city; 8. To enhance the appearance of the entryways into the city by providing high-quality landscaping which complements architecture; 9. To encourage a pleasant and safe environment for pedestrians by placement of boulevard trees and other interesting visual features; and 10. To encourage the conservation of water by rewarding the use of low water demand landscaping. (Ord. No. 1645, § 18.48.010, 8-15-2005; Ord. No. 1693, § 16(18.48.010), 2-20-2007) Sec. 38.26.020. Interpretation and scope. A. The provisions of this chapterarticle shall apply to a lot or site when an application is being made for: 1. Site development approval pursuant to chapterarticle 18.34, BMC19 of this chapter 2. Signs pursuant to Chapter 18.52, BMCarticle 28 of this chapter where landscaping is required; or 3. Restoration of a building that has been damaged or destroyed by fire, explosion, flood, tornado, riot, act of the public enemy or accident of any kind. For purposes of this subsection A, “restoration” means the act of putting back into a former or original state, only. B. Not withstanding the application of subsection A of this section, these provisions shall not apply to the following: 1. Lots containing residential uses subject to sketch plan review when located outside entryway corridors, except that such lots shall be subject to § 18.48.050sections 38.26.050.A and E, § 18.48.07038.26.070 and § 18.48.10038.26.100; 2. Lots or sites within a planned unit development which has been approved with its own landscape plan. However, these provisions shall be used as the basis for determining the landscaping plans for future planned unit developments and such planned unit development landscaping plans shall meet or exceed the standards of these landscape regulations; or 3. Lots or sites which are designed, reviewed and approved according to the deviation provisions specified in section 18.48.08038.26.080. (Ord. No. 1645, § 18.48.020, 8-15-2005; Ord. No. 1693, § 16(18.48.020), 2-20-2007) Sec. 38.26.030. General landscaping provisions. A. Designation of artificial lot. 1. All the lots and building sites described in section 18.48.02038.26.020.A shall be subject to landscaping provisions, however if a building site is over two acres in size, the applicant may request that the planning director create an artificial lot to satisfy the requirements of section 18.48.04038.26.040. 2. The planning director shall not create an artificial lot which would, in his/her the planning director's opinion, violate the spirit of these landscape regulations. An artificial lot must: a. Wholly include the area on which the development is to occur; and b. Have an area that does not exceed 50 percent of the area of the original site. PROOFS Page 673 of 977 B. An artificial lot need not be platted, however it must be designated on plans approved by the planning director or city commission prior to the issuance of a building permit. C. Landscape plans shall include the information required by section 18.78.100, BMC38.41.100. D. Vegetation may only be used to satisfy the requirements of this chapterarticle when it is located on the same zone lot as the development depicted on the landscape plan. (Ord. No. 1645, § 18.48.030, 8-15-2005; Ord. No. 1693, § 16(18.48.030), 2-20-2007) Sec. 38.26.040. Landscape plan review. A. The city commission or other party designated to conduct reviews by this chaptertitle shall review each landscape plan to determine whether or not it complies with the requirements of this section. B. All landscape plans must comply with the mandatory landscape provisions in section 18.48.05038.26.050. C. In addition, all landscape plans must earn a minimum number of points as specified in section 18.48.06038.26.060. Points are awarded for specified landscape features and elements based upon their relative value or merit. The alternatives for achieving the minimum points needed for approval are provided in section 18.48.06038.26.060. (Ord. No. 1645, § 18.48.040, 8-15-2005; Ord. No. 1693, § 16(18.48.040), 2-20-2007) Sec. 38.26.050. Mandatory landscaping provisions. A. Yard landscaping required. For all uses in all districts, unless otherwise provided by specific approval through design review procedures, all front, side and rear yards, and those areas subject to § 18.48.05038.25.050.E, BMC, exclusive of permitted access drives, parking areas and accessory structures, shall be landscaped as defined in this chaptertitle. All landscaped areas shall be perpetually maintained in a healthy condition. 1. For purposes of defining yard landscaping requirements, the terms “yard," "front yard," "side yard" and "rear yard” mean the space between the actual building, parking lot, or other structure (not the building setback line) and the adjacent lot line, which is open and unoccupied from the ground upward or from the ground downward other than by steps, walks, terraces, driveways, lamp posts and similar structures, and unobstructed by structures, except as otherwise provided in this chaptertitle. B. Additional screening requirements. The site plan or other approval authority may require additional screening when it is determined to be in the best interest of the affected properties. Such additional screening may be required between existing and/or future: 1. One-household and multihousehold developments or apartment buildings; 2. Multihousehold and multihousehold developments or apartment buildings; 3. Residential and nonresidential uses; or 4. Nonresidential uses of differing character and/or intensity. C. Parking lot landscaping. 1. For purposes of defining parking lot landscaping requirements, the term “parking lot” means the area within the perimeter of the paved portion of the parking lot, including driving aisles but not including drive accesses and parking stalls in front of garages where the use of one or more spaces within the garage is assigned to a particular dwelling. The provisions of this subsection do not apply to parking areas, PROOFS Page 674 of 977 as defined in chapter18.80, BMCarticle 42 of this chapter, provided within a building or parking structure. 2. All surface parking lots on the building site or artificial lot, whichever is applicable, shall be landscaped in accordance with the following paragraphsthis subsection C.2 which describe landscaping requirements in addition to the yard landscaping requirements for the site: a. Parking lot screening required. (1) All parking lots located on a lot with a residential adjacency must be screened from that residential adjacency; (2) All parking lots located between a principal structure and a public street, except in M-1 and M-2 districts, must be screened from the public street; and (3) The screening required under subsections C.2.a.(1) and (2) of this section shall be not less than four feet in width and shall be maintained at a height of four to six feet except as otherwise restricted by fence and hedge height limits within required front yards and street vision triangles. b. Large canopy trees, large noncanopy trees or small trees must be provided in, or within 20 feet of, the parking lot at a minimum average density of: (1) One large canopy tree; or (2) One large noncanopy tree and one small tree; or (3) Three small trees for each nine parking spaces required or provided, whichever is greater. c. No parking space may be located more than 90 feet from the trunk of a tree. d. No tree may be planted closer than four feet to the paved portion of the parking lot. e. Additionally, any parking lot providing 15 or more parking spaces shall have a minimum of 20 square feet of landscape area within the parking lot for each off-street parking space in the lot provided as follows: (1) The interior parking lot landscaping shall be designed to facilitate, control and denote proper vehicular circulation patterns; (2) Internal parking lot landscaping provided shall be proportionately dispersed so as to define aisles and limit unbroken rows of parking to a maximum of 100 feet, with landscaped areas provided in an appropriate scale to the size of the parking lot; and (3) The minimum width and/or length of any parking lot landscaped area shall be eight feet. f. The above standards are minimum mandatory standards. The provisions of section 18.48.06038.26.060 require additional vegetation or other landscape features for receipt of performance standard points. D. Screening of off-street loading spaces. 1. All off-street loading spaces on a lot with residential adjacency must be screened from that residential adjacency. 2. In all districts, except M-1 and M-2 districts, all off-street loading spaces on a lot PROOFS Page 675 of 977 must be screened from all public streets adjacent to that lot. 3. The screening required under subsections D.1 and 2 of this section must be at least six feet in height. E. Street frontage landscaping required. 1. Except in R-S districts, all street rights-of-way contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways shall be landscaped, as defined in this chaptertitle, and shall include one large canopy tree for each 50 feet of total street frontage rounded to the nearest whole number. When this requirement conflicts with other requirements of this chaptertitle or other portion of the Bozemanthis Municipal Code the planning director may relax this standard to reach an optimal balance in public interests. a. Acceptable large canopy shade trees for use in public rights-of-way are those accepted by the forestry department. Street trees must meet the arboricultural specifications and standards of chapter 12.30, BMC chapter 16, article V, division 3. The forestry department, in cooperation with the Bozemancity tree advisory board, publishes a pamphlet listing acceptable species and proper planting methods. Prior to planting street trees, a permit from the forestry department is required. 2. Where it may be impractical or difficult to plant large canopy trees within the public right-of-way (due to the presence of overhead power lines, for instance) the requirement for one large canopy tree for each 50 feet of street frontage may be substituted with two small ornamental trees per 50 feet of total street frontage. Acceptable small ornamental trees for use in public rights-of-way are those accepted by the forestry department. 3. The minimum quantity of trees and other landscaping required and provided in the public right-of-way as described herein shall be designed to complement on-site landscaping and to enhance the proposed development project and the streetscape. F. Street median island landscaping. All street median islands approved through a plan review process shall be landscaped according to requirements determined through the plan review process. G. Acceptable landscape materials. 1. Generally acceptable plant materials shall be those identified as hardy in Zones 1 through 3. The characteristics of the zones are described in The Western Garden Book, Sunset Publishing Corporation, 1995. Alternatives may be considered upon a case-by-case basis. However, in the case of street frontage landscaping as required in subsection 18.48.050.E of this section, acceptable tree species shall be limited to those approved by the forestry department. 2. No artificial plant materials may be used to satisfy the requirements of this chapterarticle. 3. Plant materials used to satisfy the requirements of this chapterarticle must comply with the following minimum size requirements at the time of installation (depending on the standard measuring technique for the species): a. Large canopy and noncanopy trees must have either: (1) For deciduous trees a minimum caliper of 1.5 inches to two inches; or (2) For evergreen trees a minimum height of eight feet. PROOFS Page 676 of 977 b. Small canopy and noncanopy trees must have either: (1) For deciduous trees a minimum caliper of one inch; or (2) For evergreen trees a minimum height of six feet. c. All other nonturf plantings shall meet American Nursery and Landscape Association standards. 4. For purposes of subsection G.3 of this section, height is measured from the top of the root ball or, if the plant is in a container, from the top soil level in the container. H. Protection of landscape areas. 1. Perimeter parking lot treatment as required in section 18.46.02038.25.020.J, BMC shall be installed to protect landscape areas adjacent to parking lots. 2. Landscaped areas within parking lots (i.e., landscape islands or peninsulas) must be protected from vehicular traffic through the use of continuous concrete curbs, or other permanent barriers approved by the city engineer. Railroad ties, rolled asphalt, pin down wheel stops or similar methods of curbing are not acceptable methods of landscape protection within parking lots. I. Irrigation standards. 1. Permanent irrigation systems shall be provided to all landscaped areas. The use of hose bibs on the exterior of existing or proposed structures is not an acceptable method of landscape irrigation unless the landscaped area is adjacent to the existing or proposed structure. 2. All irrigation systems and landscaped areas shall be designed, constructed, operated and maintained so as to promote water conservation and prevent water overflow or seepage into the street, sidewalk or parking areas. J. Required use of trees. All landscape plans must include, for each yard with a residential adjacency, at least one of the performance standards in section 18.48.06038.26.060.B that requires the use of one or more trees. K. Coordination with utilities. In order to prevent damage to both vegetation and public utility lines, all trees and other large vegetation shall be planted no closer than the minimum distance specified in the city design standards and specifications policy. L. Maximum allowable slope or grade. 1. The finish grade of all landscaped areas, including, but not limited to, required yards, parking lot landscape islands, open space areas, plaza areas, watercourse corridors, landscaped areas adjacent to sidewalks, public trials or pathways, and any stormwater facilities proposed in required yards, dedicated park land, or open space areas shall not exceed a slope of 25 percent grade (four run to one rise). 2. The slope percent is computed by dividing the vertical distance by the horizontal distance multiplied by 100. The degree of slope is equal to the tangent of vertical distance over horizontal distance (refer to Figure 18.48.050.L of Appendix A to this chapter). 3. The planning director may vary the maximum allowable slope of 25 percent grade to protect existing topographical or natural features (i.e., watercourse, wetlands, mature vegetation) associated with a site. Alternatives to exceeding the maximum allowable slope of 25 percent may include terracing, retaining walls, architectural appurtenances, landscape features, or a combination thereof that will achieve a greater design quality and enhanced landscape features. PROOFS Page 677 of 977 4. All landscaped areas to be finished in grass that exceed a maximum allowable slope of 25 percent grade shall be installed as turf sod, or hydro-seed. If hydro-seed is utilized, additional erosion control fabric (i.e., matting or blanket), or equivalent thereof) shall be provided to ensure a stable slope for a minimum of one calendar year while the vegetation becomes established. (Ord. No. 1645, § 18.48.050, 8-15-2005; Ord. No. 1693, § 16(18.48.050), 2-20-2007) Sec. 38.26.060. Landscape performance standards. A. In addition to complying with the mandatory landscape provisions in section 18.48.05038.26.050, all landscape plans must earn a minimum number of points as specified belowin this section. Points are awarded for specified landscape features and elements based upon their relative value or merit. 1. The minimum number of points needed for landscape plan approval by zoning district is as follows: Table 25-1 38.26.060-1 Zoning District Lot With Residential Adjacency (as defined in section 18.80.1730, BMC38.42.1770) Lot Without Residential Adjacency All districts not listed below 23 15 B-1 18 15 B-3 (“core area” as defined in section 18.18.01038.10.010.3.a) 13 (0) 13 (0) PUD site plans 23 15 Residential PUD non-site-specific open space plans shall meet or exceed the standards of these landscaping regulations unless a specific relaxation has been granted 15 15 Commercial PUD non-site-specific open space plans shall meet or exceed the standards of these landscaping regulations unless a specific relaxation has been granted 23 15 2. The points required under § 18.48.060subsection A.1 of this section may be earned by enhancing mandatory yard landscaping through a combination of one or more of the methods provided for in subsections B, C, and D of this section. The landscaping required by section 18.48.050, BMC38.26.050, except subsection E of said section for boulevard trees, may be used to meet the requirements of this section PROOFS Page 678 of 977 B. Yard landscaping enhancement. When considering whether landscaping meets the requirements of this section, groupings must be placed in such a fashion as to be related and mutually supportive of design quality and be placed so as to allow the healthy development of maturing vegetation. 1. Points may be earned for use of certain vegetation types as follows: a. Three points are awarded for the installation of 50 percent or greater of the surface area of the yard with drought tolerant species of herbaceous perennials, and grasses accepting of maintenance by annual mowing and limited irrigation; b. Three points are awarded for the installation of drought tolerant species for greater than 50 percent and less than 75 percent of the number of trees and shrubs; c. Five points are awarded for the installation of drought tolerant species for 75 percent or greater of the number of trees and shrubs; and d. One point shall be awarded for each mature tree existing on-site over six inches in caliper which is preserved by the proposed design of the site development. In order to utilize this subsection, the tree must have remaining life expectancy of at least 20 years and be protected from damage during construction. Caliper shall be measured at one foot above grade. 2. Five points per yard (up to 15 points maximum) are awarded when the landscaped yard contains, for each 50 linear feet of each landscaped yard, one or more of the plant elements in both columns A and B in the following Table 38.26.060-2: Table 25-2 38.26.060-2 Column A Column B 1 large canopy tree 3 evergreen shrubs and 3 deciduous shrubs 1 large noncanopy tree 2 small ornamental trees 2 small ornamental trees 2 large evergreen trees 6 evergreen shrubs 6 deciduous shrub a. The required plant elements from columns A and B in Table 38.26.060-2 above may be arranged in any combination meeting the quantity requirements of this subsection 18.48.060.B, BMC. 3. In the case of a lot with residential adjacency only, eight points are awarded for providing vegetative screening in the landscaped yard with residential adjacency in accordance with the following subsections: a. The screening must be of natural vegetation at least six feet in height; b. The screening must extend along the entire length of the portion of the PROOFS Page 679 of 977 landscaped yard where a residential adjacency exists, exclusive of: (1) Public street frontage; (2) Driveways and accessways at points of ingress and egress to the lot; and (3) Street vision triangles; c. However, no points are awarded for screening required by section 18.48.05038.26.050.B, BMC unless the required screening is constructed of earthen berm or evergreen plant materials; d. If screening is provided by an earthen berm or evergreen plant materials, the following additional regulations apply: (1) An earthen berm must be planted with groundcover. The earthen berm may not have a slope that exceeds one foot of rise for each two feet of run and must be at least four feet high, including planting materials, subject to front yard and street vision triangle height limitations. (2) Evergreen plant materials must: (a) Be located in a bed that is at least three feet wide; (b) Be placed a maximum of 48 inches on center over the entire length of the bed unless an alternative planting density that a landscape architect certifies as being capable of providing a solid appearance within three years is approved; and (c) Provide a visual barrier of the required height within three years of their initial planting; 4. Two points may be awarded when foundation plantings obscuring not less than 70 percent of the building perimeter, exclusive of entrys, are provided. 5. One point (up to five points maximum) is awarded when the landscaped roof contains, for each 500 square feet of landscaped roof, one or more of the plant elements in both columns A and B of Table 48-2 38.26.060-2. In order to qualify, a landscaped roof shall meet all requirements of this chaptertitle including at least 75 percent coverage with live vegetation and permanent irrigation. C. Nonvegetative special features. 1. Five points are awarded if the commercial building is located on the site so that 50 percent or more of the street facade of the building is within a distance of three feet or less from the required front building line, i.e., front yard setback line, as defined in chapter18.80, BMCarticle 42 of this chapter; 2. A maximum of eight points may be awarded when a site is graded and/or terraced utilizing natural stone or prefabricated decorative masonry retaining wall material as a drystack or mortared wall. In order to qualify for the points available in this section the wall portion must: a. Be five percent of the length of the total perimeter of the lot or artificial lot for each two points to be awarded; b. Have a vertical face surface of at least one foot along the length of the area to be considered for subsection C.2.a of this section; c. Be integrated with other landscaping materials and grading on the site; and PROOFS Page 680 of 977 d. Be complementary to the overall grading of the site and the activities and architecture contained on the site; 3. Up to a maximum of five points may be awarded as follows; a. One point is awarded for each stone boulder not smaller than three feet in diameter which is integrated with other landscaping; b. One point is awarded for each nine cubic feet of original, freestanding, permanent sculpture which is integrated with other landscaping. 4. One point is awarded for each one percent increment of lot area covered by publicly accessible special pedestrian facilities and features such as plazas, courtyards, covered walkways, fountains, lakes, streams and ponds, seating areas, and outdoor recreation facilities, up to a maximum of five points. D. Parking lot landscaping. 1. Ten points are awarded when all surface parking lots, as defined in chapter 18.80, BMCarticle 42 of this chapter on the building site or artificial lot, whichever is applicable, are landscaped in accordance with all of the following paragraphsthis subsection D in addition to that landscaping required in section 18.48.050, BMC38.26.050: a. The parking lot must contain one of the plant groups from § 18.48.060subsection B.2 of this section at an average density of one group, plus an additional one large canopy tree within 20 feet of the parking lot, for each required 16 parking spaces; and b. No required parking space may be located more than 70 feet from the trunk of a large canopy tree. (Ord. No. 1645, § 18.48.060, 8-15-2005; Ord. No. 1693, § 16(18.48.060), 2-20-2007) Sec. 38.26.070. Landscaping of public lands. A. City of Bozeman rights-of-way and parks. 1. General. a. Tree planting permits shall be obtained from the forestry department prior to installation of trees in city rights-of-way or parks. b. Drought tolerant grass seed shall be planted in these areas. 2. External streets, open space, and parks. The developer shall be responsible at the time of initial development for installing vegetative ground cover, boulevard trees and an irrigation system in the public right-of-way boulevard strips along all external perimeter development streets and adjacent to public parks or other open space areas. a. Prior to installing landscaping in city of Bozeman rights-of-way or parks, the developer shall submit a landscaping plan to the superintendent of public lands and facilities for review and approval. The landscaping plan shall be prepared by a qualified landscaping professional meeting the requirements of this chapterarticle. Tree planting permits shall be obtained before any tree is placed on public land. b. Wells shall be used to irrigate landscaping in these areas. 3. Adjacent to individual lots. When individual parcels are developed, the individual property owners shall be responsible for installing landscaping and street trees PROOFS Page 681 of 977 within the public right-of-way boulevard strips adjacent to their property, and providing for irrigation, in compliance with § 18.48.050section 38.26.050.E.1, BMC. B. Maintenance. 1. Maintenance of landscaping installed within the boulevard portion of the public right-of-way, with the exception of tree trimming and tree removal, shall be the responsibility of adjacent property owners. 2. A developer shall be responsible for irrigating and maintaining landscaping along external streets and landscaping adjacent to parks or other opens space areas until 50 percent of the lots are sold. Thereafter, the property owners association shall be responsible for maintaining and irrigating these landscaped areas. The property owners association may with the city’s approval establish an improvement district to collect assessments to pay for the irrigation and maintenance. 3. The city shall accept responsibility for the maintenance of all other required landscaping installed in accordance with approved site plans within the public right- of-way or on other public lands. C. State of Montana rights-of-way. Landscaping shall be installed along state rights-of- way, in the same manner described in this section 18.48.070, BMC, provided that the Montanastate department of transportation has reviewed and approved the proposed landscaping plan. Maintenance of landscaping installed within the boulevard portion of the public right-of-way shall be the responsibility of adjacent property owners unless a different responsibility is established by the encroachment permit. (Ord. No. 1645, § 18.48.070, 8-15-2005; Ord. No. 1693, § 16(18.48.070), 2-20-2007) Sec. 38.26.080. Deviation from landscaping requirements. A. To achieve the optimal landscape design on individual sites, or to coordinate the landscape design in an area, it may be necessary to deviate from the strict application of landscaping requirements. An application for such deviation shall be processed through the pertinent design review authority and approved by the city commission. B. The application for deviation shall be subject to the submittal and procedural requirements of this chaptertitle, and shall be accompanied by written and graphic material sufficient to illustrate the conditions that the modified standards will produce, so as to enable the city commission to determine that the deviation will produce an environment, landscape quality and character superior to that produced by the existing standards, and will be consistent with the intent and purpose of this chapterarticle. Upon such a finding, the city commission may authorize within the neighborhood conservation and entryway corridor overlay districts deviations of up to 20 percent from landscape design standards contained herein. (Ord. No. 1645, § 18.48.080, 8-15-2005; Ord. No. 1693, § 16(18.48.080), 2-20-2007) Sec. 38.26.090. Landscaping completion. All landscaping must be completed or secured in accordance with the provisions of chapter18.74, BMCarticle 39 of this chapter. (Ord. No. 1645, § 18.48.090, 8-15-2005; Ord. No. 1693, § 16(18.48.090), 2-20-2007) Sec. 38.26.100. General maintenance. A. Required landscaping must be maintained in a healthy, growing condition at all times. The property owner is responsible for regular weeding, mowing of grass, irrigating, fertilizing, pruning and other maintenance of all plantings as needed. However, the city forestry department is responsible for pruning or removing any tree in a city right-of-way or park. Any PROOFS Page 682 of 977 plant that dies must be replaced with another living plant that complies with the approved landscape plan. Failure to maintain required landscaping in a healthy growing condition at all times may result in revocation of an occupancy permit. When enforcing this provision of this chaptertitle, external factors such as seasonality and availability of landscape stock shall be considered before any action to revoke an occupancy permit is taken. B. Any damage to utility lines, resulting from the negligence of the property owner or histhe owner’s agents or employees in the installation and maintenance of required landscaping in a utility easement, is the responsibility of the property owner. If a public utility disturbs a landscaped area in a utility easement, it shall make every reasonable effort to preserve the landscaping materials and return them to their prior locations after the utility work. If, nonetheless, some plant materials die, it is the obligation of the property owner to replace the plant materials. (Ord. No. 1645, § 18.48.100, 8-15-2005; Ord. No. 1693, § 16(18.48.100), 2-20-2007) Chapter 18.50. park and recreation requirements ARTICLE 27. PARK AND RECREATION REQUIREMENTS* *State law reference—Park dedication requirement, MCA 76-3-621. Sec. 38.27.010. General. Except as provided in section 18.50.02038.27.020.B, all subdivisions and residential developments subject to Chapterarticle 18.34, BMC19 of this chapter, shall comply with the provisions of this chapterarticle. (Ord. No. 1645, § 18.50.010, 8-15-2005; Ord. No. 1693, § 17(18.50.010), 2-20-2007; Ord. No. 1709, § 13(18.50.010), 7-16-2007; Ord. No. 1769, exh. I(18.50.010), 12-28-2009) Sec. 38.27.020. Park area and open space requirements. A. The area required by this subsection 18.50.020 shall be provided. The required area or its equivalent may be provided by any combination of land dedication, cash donation in-lieu of land dedication, or an alternative authorized by section 18.50.100, BMC38.27.100, subject to the standards of this chaptertitle. 1. When the net residential density of development is known, 0.03 acre per dwelling unit of land shall be provided. a. When the net residential density of development is known at the time of preliminary plat and net residential density is in excess of eight dwellings per acre, the requirement for dedication for that density above eight dwellings per acre shall be met with a cash donation in-lieu of the additional land unless specifically determined otherwise by the city commission. b. These requirements are based on the community need for parks and the development densities identified in the growth policy and this chaptertitle. c. Net residential density of development is known when a plat or site plan depicts a set number of lots and the final number of residential units at full buildout can be reasonably determined. d. The required area dedication or its equivalent shall not be required for any residential density in excess of the following: (1) For development within the R-1, R-2, and RMH zoning districts, the maximum net residential density shall be ten dwellings per acre. (2) For development within the R-3, R-4, and R-O zoning districts, the PROOFS Page 683 of 977 maximum net residential density shall be 12 dwellings per acre. (3) For development within other zoning districts not previously specified and developed for residential uses, the maximum net residential density shall be 12 dwellings per acre; or 2. If net residential density of development is unknown, 0.03 acres per dwelling of land dedication or its equivalent shall be provided as follows: a. For initial subdivision or other development: (1) For development within the R-1, R-2, and R-MH zoning districts an area equal to that required for six dwellings per net acre. (2) For development within the R-3, R-4, and unless legally restricted from residential uses R-O zoning districts, an area equal to that required for eight dwellings per net acre. (3) For development within other zoning districts not previously specified and which are intended for residential development, the equivalent to an area dedication for six dwellings per net acre shall be provided as cash-in-lieu. b. For subsequent development when net residential density becomes known, the net residential density per acre shall be rounded to the nearest whole number and applied as follows: (1) For development within the R-1, R-2, and R-MH zoning districts the land area equivalent for the additional net residential density not to exceed a total, including prior dedications, of ten dwellings per acre shall be provided as cash-in-lieu. (2) For development within the R-3, R-4, and R-O zoning districts the land area equivalent for the additional net residential density not to exceed a total, including prior dedications, of 12 dwellings per acre shall be provided as cash-in-lieu. (3) For development within other zoning districts not previously specified and developed for residential uses for the additional net residential density not to exceed a total, including prior dedications, of 12 dwellings per acre shall be provided as cash-in-lieu. 3. Applicability to site plans. Section 18.50.02038.27.020.A.2, BMC, shall not apply to subsequent site plan development located within major subdivisions which received preliminary plat approval after July 1, 1973, and which received final plat approval prior to October 1, 2005. 4. Special case. The city has established chapter 10, article 17.02, BMC8, to encourage the provision and development of affordable housing. a. The minimum number of workforce housing units required to comply with chapter 10, article 17.02, BMC8, are exempt from the park land dedication requirements of this chapterarticle. Dwellings resulting from the density bonus provisions of section 17.02.06010.08.070.1 are exempt from the park land dedication requirements. Workforce housing units in excess of the minimum number shall provide park land on the same basis as other development. b. The park land requirement for development not otherwise exempted from dedication requirements shall be reduced by a 1:1 ratio based on the PROOFS Page 684 of 977 minimum required square footage of the lot area necessary to provide minimum compliance with chapter 10, article 17.02, BMC8. For example, if 50,000 square feet of lots for workforce housing units are required then there shall be a reduction in the required park land area of 50,000 square feet. (1) If the developer chooses to develop more than the required number or area of workforce housing unit lots, the additional lot area square footage above the minimum required shall not further reduce the park land area. (2) The reduction of park land shall be allowed for WHUs and/or lots provided offsite of the responsible development but only to the extent of the required WHU lot area for the development applying for this park land offset and only applied on the site of the development applying for the park land offset. c. The reductions in park land dedication to conform to chapter 10, article 17.02, BMC8, may not reduce the development's park land requirements below the minimum established by MCA 76-3-621. B. Exceptions. Land dedication or cash donation in-lieu of land dedication shall not be required for: 1. A minor subdivision. 2. Land proposed for subdivision into parcels larger than five acres. 3. Subdivision into parcels which are all nonresidential. 4. A subdivision in which parcels are not created, except when that subdivision provides permanent multiple spaces for recreational camping vehicles or manufactured homes. 5. A subdivision in which only one additional parcel is being created. 6. An application reviewed under §18.34.050, BMCsection 38.19.050. C. Development on land initially exempted from park dedication is required to provide park dedication if further development of the site does not continue to meet the criteria for exemption. D. Residential site plans. For residential site plans unless otherwise provided through the subdivision or planned unit development review process, is an amount of park land or its equivalent equal to that required by section 18.50.020, BMC38.27.020 for the proposed number of dwelling units set aside within the project boundaries, and configured for active recreational use by the residents of the project; or has the developer proposed to provide its equivalent as may otherwise be allowed by this chaptertitle. E. Residential site plans open space requirement. Site plans containing five or more dwelling units shall provide on-site open space for the use of the residents. The area to be provided is calculated only for those dwellings which do not have ground floor access to a landscaped rear yard. Open space shall be provided at a rate of 150 square feet per dwelling unit for dwellings with two or more bedrooms, and 100 square feet per dwelling unit for studio and one bedroom dwellings. All landscaped areas, public plazas or common green roof decks shall be considered a "commons" and be accessible to all residents of the site. The requirement may be met through the use of any of the following options. Options may be combined to satisfy the area requirement. 1. Landscaped. The required area shall: a. Be configured in areas of not less than 600 square feet in area; and PROOFS Page 685 of 977 b. Have at least one minimum dimension of 25 feet. Upon a showing that a superior design will result, the city may allow up to a 20 percent reduction in the minimum dimension so long as the space does not exceed a length to width ration of 1:3, and c. Have a slope of ten percent or less; and d. Not have nonrecreational structures or detention/retention ponds; and e. Provide the equivalent seating area of two benches, each four feet in length, which do not obstruct its use; and f. Area shall be centralized within the project with a clear pedestrian connection from all served dwelling unit; or g. Properties adjacent to a park, trail or other open space amenity shall be configured in such a manner as to complement and relate to the adjacent open space facilities; and 2. Common plaza or common green roof deck. Area provided through this means may be used to meet the performance requirements of chapter18.48article 26 of this chapter, Landscaping, BMC. The required area shall: a. Meet a minimum size of 225 square feet; and b. Have a minimum dimension of 15 feet. Upon a showing that a superior design will result, the city may allow up to a 20 percent reduction in the minimum dimension so long as the space does not exceed a length to width ration of 1:3; and c. Be fully surfaced with scored concrete, architectural pavers, or other alternative high quality surfacing; and d. Area must have a slope of two percent or less; e. Provide one of the following: (1) Option 1, a minimum of two benches and two permanent irrigated planters with a cumulative area of not less than 40 square feet; (2) Option 2, two benches and a shade structure that would cover 50 percent of the plaza area; (3) Option 3, a fountain of at least ten square feet with integrated seating around fountain perimeter; or f. For green roof deck credit the area shall include 25 percent of the surface planted with rooftop landscaping (trays or full depth soil); 3. Private patio or private green roof deck. The required area shall: a. Have a minimum dimension of eight feet. Upon a showing that a superior design will result, the city may allow up to a 20 percent reduction in the minimum dimension so long as the space does not exceed a length to width ration of 1:3; and b. Be surrounded by minimum 18 inch masonry screen wall; c. Green roof deck shall include 25 percent of the surface planted with rooftop landscaping (trays or full depth soil); 4. Private individual balconies shall have minimum dimensions of six feet by six feet. PROOFS Page 686 of 977 (Ord. No. 1645, § 18.50.020, 8-15-2005; Ord. No. 1693, § 17(18.50.020), 2-20-2007; Ord. No. 1709, § 13(18.50.010), 7-16-2007; Ord. No. 1769, exh. I(18.50.020), 12-28-2009) Sec. 38.27.030. Cash donation in-lieu of land dedication. A. The city commission may determine whether the park dedication must be a land dedication, cash donation in-lieu of land dedication or a combination of both. When making this determination, the city commission shall consider the following: 1. The desirability and suitability of land for parks and playgrounds based on size, topography, shape, location or other circumstances; and 2. The expressed preference of the developer. B. When a combination of land dedication and cash donation in-lieu of land dedication is required, the cash donation may not exceed the proportional amount not covered by the land dedication. C. Cash donation in-lieu of land dedication shall be equal to the fair market value of the amount of land that would have been dedicated. For the purpose of these regulations, the fair market value is the value of the unsubdivided, unimproved land after it has been annexed and given an urban zoning designation. The city intends to obtain the highest value for cash-in-lieu of park land that is allowable under Montanastate law. 1. It shall be the responsibility of the developer to provide an appraisal of the fair market value by a certified real estate appraiser of their choosing. The appraisal fee shall be the responsibility of the developer. 2. When a land value must be established for cash-in-lieu of land dedication to satisfy the requirements of section 18.50.020, BMC38.27.020, and the value of the land in an unsubdivided, unimproved, but annexed and zoned condition can not reasonably be determined, the developer may provide an appraisal of residentially zoned property with a zoning designation that allows the density of dwellings proposed for development. 3. The appraisal provided for the purpose of section 18.50.030, BMC38.27.030 shall be conducted not sooner than 90 days prior to the submittal of an application for final plat or final site plan approval. D. Where a cash donation has been accepted in-lieu of land dedication, the amount of cash donation shall be stated on the final plat or plan as appropriate. E. Where a cash donation has been accepted in-lieu of land dedication, the city commission shall record in the meeting minutes why the dedication of land for parks and playgrounds was undesirable. F. Use of cash donations. 1. The city commission shall use a cash donation for development or acquisition of parks to serve the development. 2. The city commission may use the cash donation to acquire or develop parks or recreational areas within its jurisdiction or for the purchase of public open space or conservation easements, only if: a. The park, recreational area, open space or conservation easement is within a reasonably close proximity to the proposed development; and b. The city commission has formally adopted a citywide park plan that establishes the needs and procedures for use of the cash donation. PROOFS Page 687 of 977 (Ord. No. 1645, § 18.50.030, 8-15-2005; Ord. No. 1693, § 17(18.50.030), 2-20-2007; Ord. No. 1709, § 13(18.50.030), 7-16-2007; Ord. No. 1769, exh. I(18.50.030), 12-28-2009) Sec. 38.27.040. Park use. As part of an individual park master plan, the developer shall indicate the proposed use of the park as active, passive, playground, ballfield, etc. However, the final use of the park shall be determined by the city commission. (Ord. No. 1645, § 18.50.040, 8-15-2005; Ord. No. 1693, § 17(18.50.040), 2-20-2007; Ord. No. 1709, § 13(18.50.040), 7-16-2007; Ord. No. 1769, exh. I(18.50.040), 12-28-2009) Sec. 38.27.050. Location. A. General. The city commission or planning director, in consultation with the developer, recreation and parks advisory board, and the planning board if applicable, may determine suitable locations for parks and playgrounds. Park land must be located on land suitable to and supportive of the activities and functions depicted in the relevant park plan, and unless the park plan indicates a requirement for another configuration, should be kept in a large block. B. Subarea or neighborhood plans. If a subarea or neighborhood plan has been adopted for the area, the subdivision shall comply with the subarea or neighborhood plan for the location of parks. (Ord. No. 1645, § 18.50.050, 8-15-2005; Ord. No. 1693, § 17(18.50.050), 2-20-2007; Ord. No. 1709, § 13(18.50.050), 7-16-2007; Ord. No. 1769, exh. I(18.50.050), 12-28-2009) Sec. 38.27.060. Frontage. A. Park land, excluding linear trail corridors, shall have frontage along 100 percent of its perimeter on public or private streets or roads. The city may consider and approve the installation of streets along less than 100 percent, but not less than 50 percent, of the perimeter when: 1. Necessary due to topography, the presence of critical lands, or similar site constraints; and 2. a. When direct pedestrian access is provided to the perimeters without street frontage; and b. When additional land area is provided in the park to accommodate the off- street parking which would have otherwise been provided by the additional length of perimeter streets and the additional land is developed as a parking area; or c. When additional land area is provided in the park to accommodate the off- street parking which would have been provided by the additional length of perimeter streets and, in lieu of the constructed parking area, an equivalent dollar value of nonparking improvements within the park are provided according to the individual park plan. (Ord. No. 1645, § 18.50.060, 8-15-2005; Ord. No. 1693, § 17(18.50.060), 2-20-2007; Ord. No. 1709, § 13(18.50.060), 7-16-2007; Ord. No. 1769, exh. I(18.50.060), 12-28-2009) Sec. 38.27.070. Linear parks. A. General. If consistent with a growth policy or citywide park plan, and if reviewed and approved by the city commission, linear parks shall be dedicated to the city to provide corridors for recreation pathways as defined in section 18.50.110, BMC38.27.110. 1. Pathway corridors within required watercourse setbacks shall not be dedicated to PROOFS Page 688 of 977 the city as linear parks and such land may not be used to satisfy park land dedication requirements. Instead, cash donation in-lieu of land dedication credit shall be granted only for the cost of constructing Class II or III recreational trails if public access is provided. The developer shall provide a detailed cost estimate for installation of the trail, for review and acceptance by the city, to determine the cash donation credit. a. Within required watercourse setbacks, a public access easement that is at least 25 feet in width shall be provided to ensure adequate room for the construction, maintenance and use of the trail. B. Width. To ensure adequate room for pathway construction, maintenance and use, linear parks shall be at least 25 feet in width. C. Maintenance. These areas shall be maintained in accordance with §18.50.110section 38.27.110.E, BMC until an alternative method (e.g., a citywide parks maintenance district) of funding and maintaining the linear park is established. (Ord. No. 1645, § 18.50.070, 8-15-2005; Ord. No. 1693, § 17(18.50.070), 2-20-2007; Ord. No. 1709, § 13(18.50.070), 7-16-2007; Ord. No. 1769, exh. I(18.50.070), 12-28-2009) Sec. 38.27.080. Park development. A. General. Developers shall consult any adopted citywide park plan, and with the recreation and parks advisory board which implements the plan, to determine the types of parks needed for the proposed development and surrounding area. Parks shall be developed in accordance with the citywide park plan and any approved park master plan. At a minimum, all parks shall be improved to the following standards by the developer, prior to final plat or final occupancy approval as appropriate: 1. Minimum required improvements land dedications. The subdivider shall be responsible for leveling any park area, amending the soil, seeding disturbed areas to allow mowing with turf type mowers, and installing an underground irrigation system in compliance with city standards and specifications. a. Parks shall be seeded with drought tolerant grass seed unless approved otherwise in writing by the park superintendent. 2. Irrigation. The developer shall be responsible for irrigating the park area until 50 percent of the subdivision lots or condominium units are sold. Thereafter, the property owners association shall be responsible for park irrigation. The property owners' association could establish an improvement district to collect assessments to pay for irrigation. a. Wells shall be used to irrigate park land. B. Boundaries. The park boundary bordering all private lots shall be delineated at the common private/public corner pins, with flat, flexible fiberglass posts, a minimum of six feet in length with no less than two feet driven into the ground. Each post must be labeled, with a permanent glue on sign, stating "Park Boundary" or "Property Boundary." Other forms of boundary marking may be approved by the planning or other appropriate department. C. Sidewalks. Sidewalks, when required within the development, shall be installed by the developer at points where the park borders or crosses public or private streets. D. Stormwater detention/retention ponds. Stormwater retention or detention ponds may be located within public park land, but such areas shall not count towards the park land dedication requirement. Any stormwater ponds located on park land shall be designed, constructed and/or added to so as to be conducive to the normal use and maintenance of the park. Stormwater PROOFS Page 689 of 977 ponds shall not be located on private lots. Stormwater retention or detention ponds shall be maintained by the property owners association. E. Clean up required. The park area must have all fencing material, construction debris and other trash removed. (Ord. No. 1645, § 18.50.080, 8-15-2005; Ord. No. 1693, § 17(18.50.080), 2-20-2007; Ord. No. 1709, § 13(18.50.080), 7-16-2007; Ord. No. 1769, exh. I(18.50.080), 12-28-2009) Sec. 38.27.090. Waiver of park maintenance district. When required, the developer shall sign, and file at the county clerk and recorder’s office, a waiver of right to protest the creation of park maintenance district. The waiver shall be filed with the final subdivision plat, or recorded at the time of other final approval. (Ord. No. 1645, § 18.50.090, 8-15-2005; Ord. No. 1693, § 17(18.50.090), 2-20-2007; Ord. No. 1709, § 13(18.50.090), 7-16-2007; Ord. No. 1769, exh. I(18.50.090), 12-28-2009) Sec. 38.27.100. Waiver of required park dedication. A. The city commission shall waive the park dedication or cash donation in-lieu of land dedication requirement if land equal to or exceeding the area of the dedication otherwise required by this chapterarticle is set aside by one of the following means: 1. The proposed development provides long-term protection of critical wildlife habitat; cultural, historical, archaeological or natural resources; agricultural interests; or aesthetic values. 2. The proposed development provides for a planned unit development or other development with land permanently set aside for park and recreational uses sufficient to meet the needs of the persons who will ultimately reside in the development. 3. The development is a land subdivision created by rent or lease (i.e., manufactured housing communities and recreational vehicle parks) with land permanently set aside for parks or playgrounds within the subdivision for rent or lease for the common use of the residents of the development. a. These park or playground areas shall be maintained by the property owners association. 4. The developer provides for land outside of the subdivision to be set aside for park and recreational uses sufficient to meet the needs of the persons who will ultimately reside in the subdivision. a. The land being developed shall be within the service area, as designated by an adopted citywide park plan, of the dedicated park land; and b. The developer must dedicate the off-site park land to the city; or c. The developer must execute the appropriate public access easements on privately-owned land. The easements shall be held by the city. The city's responsibilities for park land dedicated by easement shall be the same as for fee simple park land dedication. 5. The developer provides land outside the development that affords long-term protection of critical wildlife habitat; cultural, historical, archaeological or natural resources; agricultural interests; or aesthetic values; and the area of the land to be subject to long-term protection equals or exceeds the area of the dedication otherwise required by this chapterarticle. PROOFS Page 690 of 977 6. A subdivider may dedicate land to School District 7 to provide some or all of the land area required by section 18.50.020 BMC38.27.020. The area dedicated to the school district may be used for school facilities or buildings, including but not limited to play grounds or other recreational facility. Any dedication to the school district shall be subject to the approval of the city commission and acceptance by the board of trustees of School District 7. a. In approving a dedication of land to the school district the city commission shall make affirmative findings that: (1) Adequate public park land already exists within the vicinity of the dedicating subdivision to meet service standards established by the city's parks master plan; (2) The land is located within the city limits or within one mile of city limits; (3) The school district has established a facility plan to demonstrate how the dedicated property will be utilized; (4) The school district's facility plan shall describe any coordination intended for joint use of the property by the school district and the city; and (5) The option for cash-in-lieu of land described in section 18.50.030, BMC38.27.030 shall not be used in place of a land dedication to the school district. b. It shall be noted in a certificate on the plat and in any deed to the land that if School District 7 later chooses to dispose of the property, it shall revert to the city to be used for park purposes. The land shall be transferred to the city from School District 7 with clear title and in a condition meeting the minimum development standards for parks established in section 18.50.08038.27.080, BMC. 7. If a tract of land is being developed under single ownership as a part of an overall plan, and part of the tract has previously been subdivided or developed, and sufficient park land dedication or cash donation in-lieu of land dedication has been provided from the area that has been previously subdivided or developed to meet the requirements of this section for the entire tract being developed, the city commission shall issue an order waiving the land dedication and cash donation requirements for the subsequently developed area. (Ord. No. 1645, § 18.50.100, 8-15-2005; Ord. No. 1693, § 17(18.50.100), 2-20-2007; Ord. No. 1709, § 13(18.50.100), 7-16-2007; Ord. No. 1769, exh. I(18.50.100), 12-28-2009) Sec. 38.27.110. Recreation pathways. A. General. Developers shall install pathways in accordance with this chaptertitle, the growth policy, the most recently adopted long-range transportation plan, any adopted citywide park plan, and any adopted individual park master plan, and shall comply with City of Bozeman Design Specifications. B. Pathway categories. The DRC development review committee (DRC) shall be responsible for determining whether a pathway is a transportation pathway or a recreation pathway. For subdivision proposals, this determination shall be made during the preapplication process. 1. Recreation pathways. The city commission may require developers to install PROOFS Page 691 of 977 recreation pathways, to provide recreational and physical fitness opportunities within the development, as part of the required development improvements. Recreation pathways include the following facilities: a. Pathways that do not connect major residential, employment, educational or service nodes; b. Pathways that connect parks, but do not connect major residential, employment, educational or service nodes; c. Pathways that are not ADA accessible due to topography; d. Pathways located within parks; and e. Class II and III trails. 2. Transportation pathways. For the definition of transportation pathways, please see §18.44.110, BMCsection 38.24.110. C. Related facilities. If pathways are proposed or required, stream crossings and other similar improvements, where necessary, shall be installed. Bridge design and construction shall comply with city specifications and standards, and shall be submitted to the planning department for review and approval. Any necessary permits for bridges shall be obtained by the developer from the appropriate agency prior to installation of the stream crossings. D. Trail requirements. The class of the trail shall be determined by the recreation and parks advisory board, and the trail shall be designed and constructed according to any adopted park or recreation plan or other city specifications and standards. Trails and bridges must meet Americans with Disabilities Act (ADA) specifications for recreational facilities and maintain a natural appearance. Trail plans and specifications shall be submitted to the planning department for review and approval prior to installation. E. Pathway maintenance. Recreation pathways within the proposed development shall be maintained, in conformance with an approved maintenance plan, by the developer until 50 percent of the lots or condominium units are sold. Thereafter the property owners association shall be responsible for maintenance. The property owners association could establish an improvement district to collect assessments to pay for the maintenance. F. Pathway easements. Where pathways cross private land or common open space, the proper public access easements shall be provided. Public access easements for pathways shall be at least 25 feet wide. G. Linear parks. Corridors for recreation pathways may be dedicated to the city in accordance with §18.50.070, BMCsection 38.27.070. (Ord. No. 1645, § 18.50.110, 8-15-2005; Ord. No. 1693, § 17(18.50.110), 2-20-2007; Ord. No. 1709, § 13(18.50.110), 7-16-2007; Ord. No. 1769, exh. I(18.50.110), 12-28-2009; Ord. No. 1796, § 7, 1-3-2011) Chapter 18.52. Signs ARTICLE 28. SIGNS* *State law reference—Information signs, MCA 60-5-501 et seq. Sec. 38.28.010. Intent and purpose. A. It is the intent and purpose of this chapterarticle to promote the health, safety and welfare of the residents and visitors of the city by regulating and controlling the size, location, type, quality of materials, height, maintenance and construction of all signs and sign structures not located within a building, or within a building and visible from the exterior for the following reasons: PROOFS Page 692 of 977 1. To preserve the Bozeman area's natural scenic beauty and character as expressed in adopted city plans and policies; 2. To contribute to inviting entrances into Bozemanthe city by eliminating clutter associated, in part, with the unrestricted proliferation of signs, lights and stringed devices; 3. To encourage area beautification through creative, interrelated design of signage, landscaping, buildings, access and parking that enhances the community's built and natural environment; 4. To give all businesses an equal opportunity to have a sign that will help people find the services they need; 5. To ensure that pedestrians and motorists are protected from damage or injury caused or partly attributable to the distractions and obstructions which are caused by improperly situated signs. The city commission intends to provide a reasonable balance between the right of an individual to identify their business and the right of the public to be protected from the visual discord that results from the unrestricted proliferation of signs. Sections 18.28.07038.16.070 and 18.30.080, BMC38.17.080 establish certain exemptions, and alternative procedures utilizing design review. The deliberations and decisions of the design review shall be directed to accomplish the intent and purpose of this section. It is determined that the regulations contained herein are the minimum necessary to further the interests of this chaptertitle; and 6. To protect the public health and safety by minimizing distractions to the traveling public. (Ord. No. 1645, § 18.52.010, 8-15-2005; Ord. No. 1693, § 18(18.52.010), 2-20-2007; Ord. No. 1761, exh. J(18.52.010), 7-6-2009; Ord. No. 1769, exh. J(18.52.010), 12-28-2009) Sec. 38.28.020. Sign permit requirements. If a sign requiring a permit under the provision of this chapterarticle is to be placed, constructed, erected or modified on a zone lot, the owner of the lot shall secure a sign and building permit prior to the construction, placement, erection or modification of such a sign. Furthermore, the property owner shall maintain in force, at all times, a permit for such sign. No permit of any kind shall be issued for an existing sign or proposed sign unless such sign is consistent with the requirements of this chapterarticle. (Ord. No. 1645, § 18.52.020, 8-15-2005; Ord. No. 1693, § 18(18.52.020), 2-20-2007; Ord. No. 1761, exh. J(18.52.020), 7-6-2009; Ord. No. 1769, exh. J(18.52.020), 12-28-2009) Sec. 38.28.030. Prohibited signs. A. All signs not expressly permitted under this chapterarticle, or exempt from regulation, are prohibited in the city. Such signs include, but are not limited to: 1. Portable signs (except as allowed under title 12, chapter 22, BMC chapter 34, article V); 2. Roof signs; 3. Revolving signs, except as permitted in section 18.52.060 38.28.060; 4. Beacons, spotlights; 5. Flashing, blinking, or animated signs, or LED or other electronic messaging signs except for incidental signs as defined in chapter18.80, BMCarticle 42 of this chapter; PROOFS Page 693 of 977 6. Pennants, streamers, wind socks, pinwheels, or similar items; 7. Stringed flags; 8. Inflatable signs and tethered balloons (except as permitted per §18.52.040, BMCsection 38.28.040); 9. Signs located in public rights-of-way (except for those specifically permitted in this chapterarticle; and 10. Signs that resemble an official traffic sign or signal, and signs that resemble traffic signs because they predominately display the words "STOP," "GO SLOW," "CAUTION," "DANGER," "WARNING," or similar words that are commonly used by agencies of government and construction contractors to draw attention to traffic or roadway hazards. (Ord. No. 1645, § 18.52.030, 8-15-2005; Ord. No. 1693, § 18(18.52.030), 2-20-2007; Ord. No. 1761, exh. J(18.52.030), 7-6-2009; Ord. No. 1769, exh. J(18.52.030), 12-28-2009; Ord. No. 1780, § 1(18.52.030), 3-22- 2010) Sec. 38.28.040. Permitted temporary and special event signs. A. Temporary and special event signs, such as banners, tethered balloons and inflatable signs, but excluding those subject to §18.52.050, BMCsection 38.28.050, shall be allowed only as follows: 1. Special event signs are permitted in the zones described in section 18.52.06038.28.060.A.1 and §18.52.060.2, BMC. 2. Applicants for temporary signs shall apply for, and have approved, a temporary sign permit 3. All temporary signs shall comply with size, height, and location requirements of this chapterarticle. 4. For special commercial events, temporary signs shall be displayed for a consecutive period not to exceed 15 days, for a maximum of 30 days per calendar year, from January 1 to December 31. There shall be a period of at least seven days between each 15-day display period. 5. Temporary signs which identify a new business may be may be displayed for a period not to exceed 60 days, additional temporary signs shall not be allowed until the next calendar year. Only one temporary sign identifying a new business shall be permitted for the life of the business. A subsequent temporary sign identifying a new business may be permitted when business ownership has transferred to another owner, or when the business moves to a new location on a different zone lot. 6. Temporary signs that identify a new business may be displayed until the business erects a permanent sign, only if the business is in the process of obtaining a permanent sign, or 60 days, whichever comes first. If the business has previously had a temporary sign in the same location, the business will be allowed a maximum of an additional 30 more days of temporary signage. 7. Itinerant vendors shall receive information about allowable temporary signs at the time they apply for a business license, but no permit is required if the itinerant vendor is operating less than seven days. 8. Temporary signs that are seasonal in nature, such as garden greenhouses, boat showrooms, or ski rental, may apply for a long term temporary sign which may be approved for a period not to exceed 180 days. PROOFS Page 694 of 977 9. Businesses may promote events in the community, such as the county fair or Sweet Pea, by applying for and receiving a temporary sign permit for their location. When notice of the event and nonsponsorship related information occupies more than 75 percent of the banner area, such a temporary sign will not count in their temporary and special event signage limit of 30 days a year. (Ord. No. 1645, § 18.52.040, 8-15-2005; Ord. No. 1693, § 18(18.52.040), 2-20-2007; Ord. No. 1761, exh. J(18.52.040), 7-6-2009; Ord. No. 1769, exh. J(18.52.040), 12-28-2009) Sec. 38.28.050. Signs exempt from permit requirements. A. The following signs shall be exempt from the permitting requirement but must comply with the criteria for signs allowed by this chapterarticle, except section 18.52.06038.28.060: 1. Residential zones (R-S, R-1, R-2, R-3, R-4, RMH). a. Temporary, nonilluminated signs, e.g. real estate sale, political campaign and other noncommercial speech signs that do not exceed nine square feet in total area and, if freestanding, five feet in height. No more than one such sign per street frontage. b. Businesses working at a residentially zoned lot, such as landscapers or window treatment installers, may post an identifying sign only when they are physically at the residence, and the sign shall be removed immediately when the working party leaves the property. Such sign shall not exceed nine square feet in total area and, if freestanding shall not exceed five feet in height. Not more than one such sign per street frontage per lot is allowed. Such signs shall not be considered off-premises advertising so long as the identified business is actively engaged on the site. 2. Commercial and manufacturing zones (R-O, B-1, B-2, B-3, UMU, M-1, M-2, BP, PLI, HMU). a. Window signs painted on the window or physically affixed to the interior of a window, provided that such signs do not occupy more than 25 percent of the area of the window in which it is displayed. If it exceeds 25 percent of the area of the window, it will be classified as a wall sign. b. Signs within a structure or building or other enclosed area of property when such signs are not legible when viewed from outside the structure or property. c. Temporary nonilluminated signs, e.g., real estate sale, for rent or lease, political campaign, noncommercial speech signs shall not exceed 32 square feet in size, shall be no more than five feet high and shall be at least five feet from the property line. Only one sign of each subject per street frontage per lot is allowed. d. A temporary, nonilluminated sign identifying the businesses working at a construction site may be posted. The signs for multiple businesses shall be aggregated among all those working on the site and in total shall not exceed 32 square feet in size, shall be no more than five feet high and shall be at least five feet from the property line. All parties to the development, including, but not limited to, banks, architects, contractors, developers, future occupants of the lot, real estate agent, landscape company shall be on a single sign per street frontage per lot. Such signs shall not be considered off-premises advertising so long as the identified business is actively engaged on the site. PROOFS Page 695 of 977 e. Not more than four on-premises directional signs not exceeding four square feet in area and five feet in height which shall not contain any commercial messages. 3. All zones. a. Government and public utility signs. Directional, warning, street, traffic control, informational or temporary special event signs that are erected, installed or placed by or on behalf of any federal, state, county or city government. Public utility signs showing locations of underground facilities or public telephones, and safety signs on construction sites, are included within this exemption. b. Incidental signs. A sign, generally informational, that has a purpose secondary to the use of the zone lot on which it is located, such as "no parking," "entrance," "loading only," and other similar directives. No sign with a commercial message, which is designed with the intent to be legible from a position off the zone lot on which the sign is located, shall be considered incidental. (Ord. No. 1645, § 18.52.050, 8-15-2005; Ord. No. 1693, § 18(18.52.050), 2-20-2007; Ord. No. 1761, exh. J(18.52.050), 7-6-2009; Ord. No. 1769, exh. J(18.52.050), 12-28-2009) Sec. 38.28.060. Signs permitted upon the issuance of a sign permit. A. The following on-premises signs are permitted in the indicated zones subject to a sign permit: 1. Commercial, manufacturing, and public land zones (B-2, B-3, UMU, M-1, M-2, BP, PLI, NEHMU). A lot in a B-2 district is permitted total signage not to exceed 400 square feet. The maximum allowable total signage in the other districts listed herein shall not exceed 250 square feet per lot. A comprehensive sign plan is required for all commercial centers consisting of two or more tenant spaces on a lot and shall be designed in accordance with §18.52.070, BMCsection 38.28.080. a. Freestanding signs. One freestanding sign is permitted per zoned lot. The maximum area for a freestanding sign shall be 32 square feet. A low profile freestanding sign shall be set back a minimum of five feet with a maximum height of five feet. A pole-style freestanding sign shall be set back a minimum of 15 feet with a maximum height of 13 feet. The pole-style sign will maintain at least an 8-foot minimum vertical clearance from the ground. b. Wall signs. Wall signs are not to exceed a total signage allowance of 1.5 square feet per linear foot of building frontage minus any area devoted to freestanding or projecting signs. Canopy, window and awning signs shall be classified as wall signs. Wall signs shall not project above the top of a wall or parapet. Lots fronting on two or more streets shall be permitted an additional 35 percent of the already permitted wall sign area for each subsequent building frontage. c. Projecting signs. One projecting sign per tenant. Projecting signs shall not exceed eight square feet in area nor extend more than four feet from the building. In the B-3 district, projecting signs shall not exceed 12 square feet in area nor extend more than six feet from the building. Projecting signs shall provide a minimum sidewalk clearance of eight feet. (1) In the B-2, B-3, HMI, and UMU districts a projecting sign may include, either as part of a larger sign or as the entire sign, a revolving PROOFS Page 696 of 977 sign with not more than 2.5 square feet of sign area. A rotating sign located within the building does not need to provide the minimum sidewalk clearance height. A rotating sign shall not exceed a rotational speed of one full rotation in two seconds. Signs exceeding this limit shall be classified as a flashing sign. 2. Business and office zones (B-1, R-O). The maximum allowable total signage for a lot with one building shall not exceed 80 square feet in a B-1 district or nonresidentially planned R-O district, the maximum allowable total signage for a lot with two or more buildings shall not exceed 160 square feet in a B-1 district or nonresidentially planned R-O district and 32 square feet in a residential planned R-O district. A comprehensive sign plan is required for all commercial centers consisting of two or more tenant spaces on a lot. Such plans shall be designed in accordance with this section. a. Low profile freestanding signs. One low profile sign not to exceed 32 square feet in area in the B-1 district, and 12 square feet in area in the R-O district. In both the B-1 and the R-O districts, the low profile sign shall have a minimum setback of five feet and a maximum height of five feet. Pole-style freestanding signs are not permitted in the B-1 and R-O zones. b. Wall signs. Wall signs in the B-1 district are not to exceed a total signage allowance of one square foot per linear foot of building frontage minus any area devoted to freestanding or projecting signs. Wall signs in the R-O district are not to exceed a total signage allowance of 0.5 of a square foot per linear foot of building frontage minus any area devoted to freestanding and/or projecting signs. Canopy, window and awning signs shall be classified as wall signs. Wall signs shall not project above the top of a wall or parapet. Lots fronting on two or more streets shall be permitted an additional 35 percent of the already permitted wall sign area for each subsequent building frontage. c. Projecting signs. One projecting sign per tenant. Projecting signs shall not exceed eight square feet in area nor extend more than four feet from the building. Projecting signs shall provide a minimum sidewalk clearance of eight feet. (1) In the B-1 district a projecting sign may include, either as part of a larger sign or as the entire sign, a revolving sign with not more than 2.5 square feet of sign area. A rotating sign located within the building does not need to provide the minimum sidewalk clearance height. A rotating sign shall not exceed a rotational speed of one full rotation in two seconds. Signs exceeding this limit shall be classified as a flashing sign. d. Subdivision identification signs. For residential subdivisions consisting of more than four residential units, one low profile, freestanding, neighborhood identification sign per development entrance is allowed. Each sign shall not exceed 16 square feet in area or five feet in height from the finished grade. The sign must be setback at least five feet from the property line. e. Residential building identification signs. For properties used for multihousehold residential buildings, one residential identification wall sign per street frontage. Each sign shall not exceed eight square feet in area. 3. Residential zones (R-S, R-1, R-2, R-3, R-4, RMH). PROOFS Page 697 of 977 a. Subdivision identification signs. For residential subdivisions consisting of more than four residential units, one low profile, freestanding, neighborhood identification sign per development entrance is allowed. Each sign shall not exceed 16 square feet in area or five feet in height from the finished grade. The sign must be setback at least five feet from the property line. b. Residential building identification signs. For properties used for multihousehold residential buildings, one residential identification wall sign per street frontage. Each sign shall not exceed eight square feet in area. c. Signs appurtenant to residential principal and conditional uses and home occupations. (1) Principal residential uses and home occupations shall be permitted commercial message signage not to exceed four square feet in area and shall not be located in any required setback area. In addition, home occupations shall be permitted one square foot signs on a mailbox or lamppost or 1.5 square feet of freestanding signage located a minimum of five feet from the property line. (2) Principal residential uses shall be permitted noncommercial speech signs which do not exceed 30 square feet in area nor five feet in height. Such sign must be setback at least 15 feet from the property line. (3) Conditional nonresidential type uses, such as churches, veterinary uses, golf courses, day care centers and schools shall be permitted signage as if the underlying zoning were B-1. Conditional residential type uses such as bed and breakfast homes, and fraternity and sorority houses, shall be permitted signage as if the underlying zoning were R-O. Such signs may only be illuminated during the hours of operation. d. Planned unit developments. Commercial establishments within planned unit developments where the underlying zoning is residential shall be permitted signage as if the lot were in a B-1 zone. 3. Special districts and zones. The guidelines for the underlying zoning districts apply unless otherwise addressed below: a. Neighborhood conservation overlay district. Within this district, all signage is subject to issuance of a certificate of appropriateness after review for compliance with the design guidelines for the neighborhood conservation overlay district. If the applicant is not requesting sign deviations, the sign application will be reviewed by ADR staff. If the applicant is requesting deviations, the sign application shall be subject to review by the design review board and the city commission. b. Entryway overlay district. Within this district, all signage is subject to issuance of a certificate of appropriateness after review for compliance with the design objectives plan for entryway corridors. If the applicant is not requesting sign deviations, the sign application will be reviewed by ADR staff. Signage may exceed the underlying zoning district limitations by up to 20 percent upon review and approval of a deviation by the city commission, upon the recommendation of the design review board, and upon receipt of a certificate of appropriateness. PROOFS Page 698 of 977 c. Interchange zone. Signage may exceed the maximum total sign area permitted by section 18.52.060, BMC38.28.060 by up to 25 percent upon review and approval of a deviation by the city commission, upon the recommendation of the appropriate design review advisory body, and upon receipt of a certificate of appropriateness. Each lot shall be permitted one freestanding sign. (1) Low profile signs. One low profile sign per zoned lot. The maximum area for a low profile sign shall be 40 square feet. The sign shall be setback a minimum of five feet with a maximum height of eight feet. (2) Pole-style signs. A pole-style freestanding sign shall be set back a minimum of 15 feet and will maintain at least an eight-foot minimum vertical clearance. Pole-style signs shall not exceed a total area of 40 square feet or 16 feet in height, provided however, that for every two feet said sign is set back from 15 feet beyond the street right-of-way, the height measured at grade may be increased one foot, not to exceed a total of 32 feet, and the area may be increased by 2.5 square feet for every two feet that said sign is set back 15 feet beyond the street right-of-way up to a maximum of 120 square feet. d. Main Street historic district. Permits for signs that encroach into the public right-of-way shall be obtained from the city manager's office in city hall. (Ord. No. 1645, § 18.52.060, 8-15-2005; Ord. No. 1693, § 18(18.52.060), 2-20-2007; Ord. No. 1761, exh. J(18.52.060), 7-6-2009; Ord. No. 1769, exh. J(18.52.060), 12-28-2009; Ord. No. § 2(18.52.060), 3-22-2010) Sec. 38.28.070. Wayfinding signage. A. Purpose. Wayfinding signs shall serve to assist travelers in navigating the larger community and identifying defined districts. Wayfinding signs or kiosks are not intended to serve as off-premises advertising for individual entities. B. Defined districts. To qualify as a district an area must have a significant commonality of purpose, identity and shared functions serving the larger community. Designation as a district is at the discretion of the city and shall only be granted when found to be consistent with the intent of this chapterarticle and the city's other adopted regulations, policies and plans. Approval of district designation is the duty of the planning director who shall make written findings of the decision. C. Wayfinding signage is intended to add to the district's "sense of place" and may include district identification signs, directory signs to designate shared or common spaces such as parking facilities, parks, trails and open space. It may also include pedestrian-scale informational kiosks to announce district events and/or to list a directory that corresponds with a map presented in the kiosk. Wayfinding signs shall not advertise specific businesses or otherwise constitute off- premises signs. Wayfinding signage is permitted within districts only after approval of a comprehensive signage plan for the wayfinding signs. D. Submittal of a comprehensive signage plan for wayfinding must be made by a single individual or entity legally authorized to represent the area within the plan and with the consent of relevant governing authority. In addition to the requirements of 18.52.170section 38.28.180, a comprehensive signage plan for wayfinding must: 1. Include a description of the installation and maintenance program for the signs including, but not limited to, who is responsible for installation and maintenance, identified reliable funding for installation and maintenance, contact plan for the responsible individual, and a description of how the sign program will be kept PROOFS Page 699 of 977 updated or removed. If the signs are to be illuminated a description of how the power source may be removed and made safe shall be included. 2. Demonstrate how it will enhance the streetscape by promoting a unified and enhanced visual aesthetic consistent with the streetscape design elements in the district; coordinate information to pedestrians and drivers in a clear, consistent, and understandable format; and reduce visual clutter. 3. Include information on how the district stakeholders were given opportunity to collaboratively participate in the selection of the sign types and designs. 4. Clearly describe the hierarchy of signs and include the criteria for determining sign placement and size. Any signs intended to be read from the right-of-way shall comply with the lettering standards of the Manual for Uniform Traffic Control Devices for the road type and speed. 5. The wayfinding signage plan shall include signage elevations and plans with corresponding map designating signs types and locations. E. Design standards. The wayfinding signs shall include and meet the following standards and provisions: 1. Color schemes, fonts and materials. Coordinated color schemes, fonts and materials, including base supports, cabinet details and mounting methods, shall serve to distinguish wayfinding signage within the district from other districts. 2. Lighting. Lighting is not required. If any lighting is proposed, the wayfinding signage plan shall include cut-sheets and lighting details in accordance with the standards established in section 18.42.15038.23.150. a. Photovoltaic panels to provide power, where appropriate, are encouraged. 3. Size and location. Signage may be located within required setbacks and may be located within the right-of-way, with approval from the applicable review agencies including the city and/or the Montanastate department of transportation. Restrictions for signs within the public right-of-way may be more strict than those on private property in order to avoid conflict or confusion with official regulatory and warning signs or interference with travel. 4. Wayfinding signs shall comply with the following standards: a. Wayfinding signs that are affixed to a lightpost, traffic post or sign within the right-of-way shall not exceed four square feet in area and are limited to one sign per block face (or equivalent). b. Any signs intended to be located within the right-of-way shall comply with the construction standards of the Manual for Uniform Traffic Control Devices. c. Freestanding wayfinding kiosks or signs are limited to one sign per two blocks (or equivalent), shall not exceed 30 square feet in area per face and shall not exceed seven feet in height. d. Wayfinding signage may be located within the street-vision triangle at intersections controlled by a traffic light. e. Decorative features including but not limited to post caps may extend an additional two feet for a total of nine feet in height. f. Photovoltaic panels are exempt from the height requirement. PROOFS Page 700 of 977 g. Business names, logos, or other marks identifying specific parties on a directory list or map in a kiosk shall not exceed one inch in height. h. Wayfinding signage may not interfere with the clear passage of pedestrians or vehicles or otherwise cause safety hazards. i. Wayfinding signs shall not obscure or obstruct any existing regulatory, warning, or parking control signs. 5. Wayfinding signs are allowed for parks, or for districts containing more than 30 acres of platted lots. 6. A performance bond or other surety acceptable to the city may be required for the maintenance, replacement, updating, and/or removal of signs in an amount acceptable to the planning director. (Ord. No. 1769, exh. J(18.52.065), 12-28-2009) Sec. 38.28.080. Comprehensive sign plan. A. A comprehensive sign plan shall be submitted for all commercial, office, industrial and civic uses consisting of two or more tenant or occupant spaces on a lot or two or more lots subject to a common development permit or plan. A comprehensive sign plan shall not be approved unless it is consistent with this chapterarticle, the underlying zoning regulations applicable to the property and any discretionary development permit or plan for the property. The plan should include the size and location of buildings and the size and location of existing and proposed signs. The purpose of the plan is to coordinate graphics and signs with building design. The coordination shall be achieved by: 1. Using the same type of cabinet supports or method of mounting for signs of the same type; using the same type of construction for components, such as sign copy, cabinet and supports; using other types of integrating techniques, such as common color elements, determined appropriate by the planning director. 2. Using the same form of illumination for all signs, or by using varied forms of illuminations determined compatible by the planning director. (Ord. No. 1645, § 18.52.070, 8-15-2005; Ord. No. 1693, § 18(18.52.070), 2-20-2007; Ord. No. 1761, exh. J(18.52.070), 7-6-2009; Ord. No. 1769, exh. J(18.52.070), 12-28-2009) Sec. 38.28.090. Multitenant complexes with less than 100,000 square feet of ground floor area. A. The guidelines for the underlying zoning districts apply unless otherwise addressed belowin this section: 1. The maximum permitted wall sign area allowed for each tenant space shall be the percentage of the total floor area on the zoned lot that the tenant occupies multiplied by the wall area allowed by section 18.52.06038.28.060.1.b or §18.52.060.2.b, BMC. If the lot has more than one building frontage, the individual tenant space may derive sign area only from the frontage which the space faces. Lots under this section shall be allowed a low profile sign that identifies the complex, which otherwise conforms to this chapterarticle, in addition to the sign area already permitted under §18.52.060section 38.28.060.A.1.b or §18.52.060.2.b, BMC. (Ord. No. 1645, § 18.52.080, 8-15-2005; Ord. No. 1693, § 18(18.52.080), 2-20-2007; Ord. No. 1761, exh. J(18.52.080), 7-6-2009; Ord. No. 1769, exh. J(18.52.080), 12-28-2009) Sec. 38.28.100. Multitenant complexes with more than 100,000 square feet of ground floor area. A. The guidelines for the underlying zoning districts apply unless otherwise addressed belowin this section: PROOFS Page 701 of 977 1. Freestanding signs. a. Pole-style signs. One pole-style sign per street frontage not to exceed 48 square feet in area or 16 feet in height. The sign area computed for a pole- style sign shall not be subtracted from the maximum allowable wall signage permitted for the entire complex. b. Low profile signs. One low profile sign shall be permitted at each secondary entrance of the complex, provided each sign shall not exceed 32 square feet in area, not five feet in height, and must be setback a minimum of five feet from the property lines. All low profile signs shall only identify the complex and must display the street number address in figures which are at least six inches high. Low profile signs complying with these regulations will not be factored when calculating the maximum permitted wall sign area. 2. Wall signs. Each tenant shall be permitted wall signage square footage calculated from 1.5 times the linear store frontage. For the maximum allowable total signage, please see section 18.52.06038.28.060.1 or 18.52.060.2, BMC. (Ord. No. 1645, § 18.52.090, 8-15-2005; Ord. No. 1693, § 18(18.52.090), 2-20-2007; Ord. No. 1761, exh. J(18.52.090), 7-6-2009; Ord. No. 1769, exh. J(18.52.090), 12-28-2009) Sec. 38.28.110. Indoor shopping mall complexes with more than 100,000 square feet of ground floor area. A. The guidelines for the underlying zoning districts apply unless otherwise addressed belowin this section: 1. Freestanding signs. a. Pole-style signs. One pole-style sign per street frontage not to exceed 48 square feet in area or 16 feet in height. The sign area computed for a pole- style sign shall not be subtracted from the maximum allowable wall signage permitted for the entire complex. b. Low profile signs. One low profile sign shall be permitted at each secondary entrance of the complex, provided each sign shall not exceed 32 square feet in area, nor five feet in height, and must be set back a minimum of five feet from the property lines. All low profile signs shall only identify the complex and must display the street number address in figures which are at least six inches high. Low profile signs complying with these regulations will not be factored when calculating the maximum permitted wall sign area. 2. Wall signs. Each anchor tenant occupying 20,000 square feet or more shall be permitted 300 square feet of wall signage. Each tenant with an exclusive outdoor customer entrance shall be permitted wall signage square footage calculated from five percent of the ground floor area. (Ord. No. 1645, § 18.52.100, 8-15-2005; Ord. No. 1693, § 18(18.52.100), 2-20-2007; Ord. No. 1761, exh. J(18.52.100), 7-6-2009; Ord. No. 1769, exh. J(18.52.100), 12-28-2009) Sec. 38.28.120. Illumination. A. Illumination, if any, shall be provided by artificial light which is constant in intensity and color. Internally illuminated "can signs" are acceptable provided background and copy are coordinated to avoid excessive light output. Neon and other gas type transformers shall be limited to 60 milliamperes and fluorescent transformers shall be limited to 800 milliamperes to soften light output. The output of lumens from lighting provided by other types of light emitters shall not exceed that possible from gas type transformers as regulated in this paragraphsubsection PROOFS Page 702 of 977 A. Additionally, neon and other gas type signs with exposed tubing shall be equipped with dimmers. B. Externally illuminated wall-mounted and pole signs shall be lighted by fixtures mounted at the top of the sign and aimed downward; ground-mounted sign lighting may only be used for monument style signs. Fixtures used to illuminate signs shall be aimed so as not to project their output beyond the sign. (Ord. No. 1645, § 18.52.110, 8-15-2005; Ord. No. 1693, § 18(18.52.110), 2-20-2007; Ord. No. 1761, exh. J(18.52.110), 7-6-2009; Ord. No. 1769, exh. J(18.52.110), 12-28-2009) Sec. 38.28.130. Street vision triangles. Signs shall not be placed in sight vision triangles as they are established in section 18.44.100, BMC38.24.100, unless specifically authorized in this chapterarticle. (Ord. No. 1645, § 18.52.120, 8-15-2005; Ord. No. 1693, § 18(18.52.120), 2-20-2007; Ord. No. 1761, exh. J(18.52.120), 7-6-2009; Ord. No. 1769, exh. J(18.52.120), 12-28-2009) Sec. 38.28.140. Required address signs. Street numbers shall be required for all residential, commercial, industrial, and civic uses in all zones, consistent with the requirements of the fire department. All freestanding signs shall display the address of the lot in six-inch numbers. (Ord. No. 1645, § 18.52.130, 8-15-2005; Ord. No. 1693, § 18(18.52.130), 2-20-2007; Ord. No. 1761, exh. J(18.52.130), 7-6-2009; Ord. No. 1769, exh. J(18.52.130), 12-28-2009) Sec. 38.28.150. Billboards and other off-premises advertising. A. Off-premises commercial advertising signs are not permitted within the Bozeman city limits except as permitted by state or federal law. 1. Exception: Off-premises signs may be placed on the interior of transit shelters reviewed and approved by the city and served by an active fixed route transit service. Signage within a transit shelter shall not distract drivers of vehicles nor be legible from the driving lanes. (Ord. No. 1645, § 18.52.140, 8-15-2005; Ord. No. 1693, § 18(18.52.140), 2-20-2007; Ord. No. 1761, exh. J(18.52.140), 7-6-2009; Ord. No. 1769, exh. J(18.52.140), 12-28-2009) Sec. 38.28.160. Signs erected in conjunction with nonprofit activities on public property. A. Signs erected on public property in support of nonprofit activities, such as signs advertising sponsors of youth and sports activities, shall be allowed only as follows: 1. The sign shall be permitted only at developed facilities in public parks or other publicly owned lands. 2. The sign may be erected two weeks prior to the commencement of the activity and shall be removed within two weeks after the cessation of the activity for which the sign were erected. 3. Each individual sign shall be no larger than 32 square feet. Freestanding signs must be setback a minimum of 15 feet from the property line with a maximum height of five feet. Signs attached to walls or scoreboards shall not be subject to the five foot height limitation. However, signs attached to walls or scoreboards shall not exceed the height of the wall or scoreboard to which they are attached. All signs shall be oriented towards spectators attending the activity who are at the facility. 4. The sign shall not: a. Be individually illuminated; nor PROOFS Page 703 of 977 b. Be placed in sight vision triangles or otherwise impede or obstruct the view of the traveling public. 5. Applicants for such sign must apply for, and have approved, a special temporary sign permit detailing the nature of the sign to be erected and the duration the sign will remain in place. Applications and review procedures shall be made as per §18.52.170, BMCsection 38.28.180. (Ord. No. 1645, § 18.52.150, 8-15-2005; Ord. No. 1693, § 18(18.52.150), 2-20-2007; Ord. No. 1761, exh. J(18.52.150), 7-6-2009; Ord. No. 1769, exh. J(18.52.150), 12-28-2009) Sec. 38.28.170. Historic or culturally significant signs. Signs which have historical or cultural significance to the city but do not conform to the provisions of this chapterarticle, maybe permitted provided that the city commission adopts findings supporting the historical or cultural significance of the sign and issues a sign permit. Such findings shall be adopted by resolution of the city commission. (Ord. No. 1645, § 18.52.160, 8-15-2005; Ord. No. 1693, § 18(18.52.160), 2-20-2007; Ord. No. 1761, exh. J(18.52.160), 7-6-2009; Ord. No. 1769, exh. J(18.52.160), 12-28-2009) Sec. 38.28.180. Application. A. An application for a sign shall be made on forms provided by the planning department. The application shall contain sufficient information and plans to permit review pursuant to this chapterarticle, including, but not limited to, building elevations; photographs; proposed locations of signs on building elevations; sign design layout showing number, types and dimensions of all signs; and a site plan showing proposed location of all signs. B. Acceptability and adequacy of application. 1. The planning department shall review the application for acceptability within five working days to determine if the application does not omit any of the submittal elements required by this chaptertitle. If the application does not contain all of the required elements, the application and a written explanation of what the application is missing shall be returned to the property owner or their representative. The five working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the five-day review period. 2. After the application is deemed to contain the required elements and to be acceptable, it shall be reviewed for adequacy. A determination of adequacy means the application contains all of the required elements in sufficient detail and accuracy to enable the city to make a determination that the application either does or does not conform to the requirements of this chaptertitle and any other applicable regulations under the jurisdiction of the city. Determination of adequacy will be made by the planning department. The adequacy review period shall begin on the next working day after the date that the planning department determines the application contains all the required elements and shall be completed within not more than 15 working days. The 15 working day review period will be considered met if the letter is dated, signed and placed in the outgoing mail within the 15 working day review period. If the application is inadequate, a written explanation of why the application is inadequate will be returned to the property owner. Upon a determination of adequacy the review of the development will be scheduled. a. In the event the missing information is not received by the city within 15 working days of notification to the property owner of inadequacy, all application materials shall be returned to the property owner or their representative. Subsequent resubmittal shall require payment of a review fee PROOFS Page 704 of 977 as if it were a new application. b. A determination that an application is adequate does not restrict the city from requesting additional information during the review process. 3. Should the property owner choose not to provide the required information after an application has been found unacceptable, nor to accept return of the application, the application may be processed by the city with the recognition by the property owner that unacceptability is an adequate basis for denial of the application regardless of other merit of the application. 4. Action. a. After an application is deemed adequate, the planning director or his designee shall act to approve or deny the application within ten working days; or b. After the application is determined to be adequate for review, if the application includes a request for a deviation or variance the city shall schedule the application to be heard at the next available meeting of the city commission which allows for required public notice to be given; or c. If the sign application is submitted in conjunction with a site plan or other similar review then the review process and final review authority shall be coordinated. 5. An applicant may appeal the denial of a permit request pursuant to the provisions of chapter18.66, BMCarticle 35 of this chapter. (Ord. No. 1645, § 18.52.170, 8-15-2005; Ord. No. 1693, § 18(18.52.170), 2-20-2007; Ord. No. 1761, exh. J(18.52.170), 7-6-2009; Ord. No. 1769, exh. J(18.52.170), 12-28-2009) Sec. 38.28.190. Maintenance of permitted signs. All signs shall be continuously maintained in a state of security, safety and repair. Abandoned signs and sign support structures shall be removed. If any sign is found not to be so maintained, or is in need of repair or has been abandoned, it shall be the duty of the owner and the occupant of the premises to repair or remove the sign within 14 calendar days after receiving written notice to do so from the planning director. If the sign is not so repaired or removed within such time, the planning director shall cause the sign to be removed at the expense of the owner of the premises. (Ord. No. 1645, § 18.52.180, 8-15-2005; Ord. No. 1693, § 18(18.52.180), 2-20-2007; Ord. No. 1761, exh. J(18.52.180), 7-6-2009; Ord. No. 1769, exh. J(18.52.180), 12-28-2009) Sec. 38.28.200. Nonconforming signs. A. The eventual elimination of existing signs that are not in conformity with the provisions of this chapterarticle is as important as the regulation of new signs. Except as otherwise provided herein, the owner of any zone lot or other premises on which exists a sign that does not conform with the requirements of this chapterarticle and for which there is no prior, valid sign permit shall remove such sign. B. All signs which were legally permitted prior to June 22, 1997, are considered legal, permitted signs under this chapterarticle. Except as provided for in subsection C of this section, said sign, if nonconforming with this chapterarticle, may not be: 1. Replaced except with a conforming sign; 2. Changed in copy (except for signs specifically designed to be changed in copy, such as readerboards with changeable letters); PROOFS Page 705 of 977 3. Structurally altered to extend its useful life; or 4. Expanded, moved or relocated. C. No legal, nonconforming sign may be altered or enlarged in any way which increases its nonconformity, but any existing signage, or portions thereof, may be altered by decreasing its nonconformity (except as provided in subsection D of this section). D. Any lot with a nonconforming sign may not add additional signage until all signs on the lot are brought into conformance with this chapterarticle. Any site modification that requires a certificate of appropriateness (except when the certificate of appropriates is solely for the purpose of placing energy collection equipment), site plan review or reuse application will necessitate compliance for all existing and proposed signage on the lot. (Ord. No. 1645, § 18.52.190, 8-15-2005; Ord. No. 1693, § 18(18.52.190), 2-20-2007; Ord. No. 1761, exh. J(18.52.190), 7-6-2009; Ord. No. 1769, exh. J(18.52.190), 12-28-2009) Sec. 38.28.210. Substitution. Any sign allowed under this chapterarticle may contain, in lieu of any other message or copy, any lawful noncommercial message that does not direct attention to a business operated for profit, or to a product, commodity or service for sale or lease, or to any other commercial interest or activity, so long as the sign complies with the size, height, area and other requirements of this chapterarticle. Authorized decision-making bodies may not consider the content of speech or the viewpoint of the speaker when taking action to approve or deny sign permits or other application for signs. (Ord. No. 1769, exh. J(18.52.200), 12-28-2009) Sec. 38.28.220. Severability. Where any word, phrase, clause, sentence, paragraph, or section or other part of this chapterarticle is held invalid by a court of competent jurisdiction by express inclusion in the decision to be invalid, such judgment shall affect only that part held invalid and such decision shall not affect, impair or nullify this chaptertitle as a whole or any other part thereof. (Ord. No. 1769, exh. J(18.52.200), 12-28-2009) CHAPTER 18.54. TELECOMMUNICATIONS ARTICLE 29. TELECOMMUNICATIONS Sec. 38.29.010. Intent, purpose and applicability. A. It is the duty of the city to protect the public health, safety and welfare and the city has the authority to regulate the placement, construction and modification of wireless facilities in the advancement of that duty. B. The city commission finds that: 1. The aesthetic character of Bozemanthe city is a matter of substantial economic importance and general concern to the citizens of the city, as described in the city’s adopted growth policy, and is an important part of the public welfare; 2. Wireless facilities are often visually obtrusive due to their necessary height, support equipment and interruption of the viewscape, and can have substantial impacts on the character of Bozemanthe city and its surrounding viewsheds which negatively affect the character of the city; 3. The impacts of wireless facilities can be reduced by establishing standards for location, structural integrity, compatibility and collocation; PROOFS Page 706 of 977 4. The city desires to promote collocation, use of stealth installations of wireless facilities and the use of smaller and less intrusive facilities to minimize the need to construct new large scale wireless facilities in order to reduce visual and other impacts on the community; 5. The city desires to provide clear and consistent regulations for review of proposed wireless facilities; 6. The city desires to support the ability of telecommunication service providers to deliver such services to the community consistent with other community objectives; 7. The construction of new large scale wireless facilities is the action of last resort to provide for wireless communication services and should only be undertaken when other alternatives are not available; 8. It is necessary to determine the locations and circumstances most appropriate for placement of wireless facilities to serve the community; 9. Consistent with applicable law, the city desires to minimize the adverse visual impacts of towers and antennas through careful siting, design, landscape screening and innovative camouflaging screening; 10. The city seeks to protect against potential health and safety hazards to citizens and prevent damage to adjacent properties; 11. The city intends to exercise its authority with respect to the regulation of the placement, construction and modification of wireless facilities, to the fullest extent permitted by applicable law; 12. The city recognizes the need to respond to the policies in the Telecommunications Act of 1996 and has constructed its regulations in a manner that does not unreasonably discriminate between providers of functionally equivalent personal wireless service nor prohibits or has the effect of prohibiting personal wireless service in the city; 13. The Federal Communication Commission exercises certain sole authority in the licensing and other regulation of wireless services which the city recognizes; 14. The adequate review of a telecommunications application may require expertise not typically possessed by city staff which would require the city to obtain qualified outside expertise to properly evaluate an application; and 15. Outside review would generate additional costs to the public to preserve the public interest which costs must be mitigated and should properly be mitigated by those causing such additional costs. C. General application. All uses listed in this chapterarticle shall be subject to the specific standards described for each use, in addition to all other applicable standards which may apply, and are limited to those districts specified. The provisions of this chapterarticle apply to development and modification of large scale wireless facilities, micro-scale wireless facilities, nonbroadcast telecommunication facilities and small scale wireless facilities. These and other terms are defined in chapter18.80, BMCarticle 42 of this chapter. 1. The provisions of this chapterarticle only apply to facilities which meet the definition of a wireless facility or that are otherwise specifically brought under the authority of this chapterarticle. (Ord. No. 1645, § 18.54.010, 8-15-2005) PROOFS Page 707 of 977 Sec. 38.29.020. Special submittal requirements. In addition to the materials required by chapter 18.78, BMCarticle 41 of this chapter for site plans, conditional use permits, and planned unit developments, the materials required by section 18.78.170, BMC38.41.170 shall be submitted. (Ord. No. 1645, § 18.54.020, 8-15-2005) Sec. 38.29.030. Uses within districts and required review procedures. A. Purpose. The purpose of this section is to describe the procedures under which certain uses may be permitted as principal or conditional uses in specific districts. Unless specifically exempted by this chapterarticle, all other standards and procedures of this chaptertitle shall apply. 1. The Montana Subdivision and Platting Act (Title 76, Chapter 3, MCA 76-3-101 et seq.) requires subdivision review when land interests are created by rent or lease. Depending on how the ownership and use of land for a facility subject to this chapterarticle is established, subdivision review may be required in addition to site plan review. B. No wireless facility may be permitted except in accordance with the development review processes indicated in the Table 38.29.030 in subsection B.1 of this section, based on the applicable zoning district and scope of the proposed facility. Principal uses are indicated with a “P”, conditional uses are indicated with a “C”, accessory uses are indicated with an “A”, planned unit development is indicated with a “PUD”, and uses which are not permitted with the district are indicated by a “-”. All applications are subject to the review processes, submittal requirements and other requirements of chapterarticles 18.3419, 18.3620 and 18.7841 of this chaptertitle as may be applicable. 1. Review procedures. Table 28-1 38.29.030 334Zoning District Large scale Small scale Micro scale Nonbroadcast PLI P P A P M-2 P P A P M-1 P P A P B-P C P/C1 A P B-3 C P/C1 A P B-2 C P/C1 A P B-1 C P/C1 A P R-O PUD C P C R-4 PUD C P C R-3 PUD C P C R-2 PUD C P - 334 What about UMU? This has been identified as a future edit. PROOFS Page 708 of 977 334Zoning District Large scale Small scale Micro scale Nonbroadcast R-1 PUD C P - R-S PUD C P C 1Conditional use review is required when the proposed facility exceeds the height limitation of the district. 2. Collocation upon a previously approved wireless facility, when such additional facilities were contemplated as part of the original review, shall be reviewed as a sketch plan in all zones. 3. A wireless facility may be permitted as an accessory use in any nonresidential district when: a. It is for the exclusive use of a single on-site business when the business has otherwise been approved under Chapterarticle 18.3419 or 18.36, BMC20 of this chapter, rather than offered to additional parties; b. It is in compliance with the maximum building height limitations of the zoning district; c. Complies with all setback and other zoning requirements; and d. Has eight or less square feet of total antenna surface area. 4. Installations located within the neighborhood conservation overlay or entryway corridor overlay districts shall be reviewed against the criteria of chapterarticles 18.28 16 and Chapter 18.30, BMC 17 of this chapter as applicable and shall require a certificate of appropriateness before issuance of a building permit. 5. Prior to submitting an application for a large scale or small scale wireless facility, the applicant must request in writing a preapplication conference with the planning department. The purpose of the preapplication conference is to acquaint the participants with the applicable requirements of this chapterarticle, as well as any preliminary concerns of the department. 6. The applicant’s written request for a preapplication conference must include the following information with regard to the proposed facility: a. Location; b. Overall height; c. Number of antennas proposed, including those of other providers to be collocated; d. Type of wireless communication services to be provided; and e. Coordination of ground equipment shelters. 7. Adequate review of applications may require the city to retain consultants or other third party assistance to review an application. In such event the applicant shall reimburse the city for the actual costs incurred prior to issuance of a building permit. 8. The provisions of chapter18.60, BMCarticle 32 of this chapter shall apply for all nonconforming facilities subject to this chapterarticle. (Ord. No. 1645, § 18.54.030, 8-15-2005) PROOFS Page 709 of 977 Sec. 38.29.040. Standards. A. Safety. All wireless facilities subject to this chapterarticle shall meet the following standards: 1. The structural design for all wireless facilities greater than ten feet in height or which have more than four square feet of total antenna area shall be certified by a professional structural engineer licensed to practice in the state of Montana. A building permit shall be obtained prior to the installation of any facility subject to this chapterarticle. 2. All wireless facilities shall meet or exceed current standards and regulations of the FCC, FAA and any other agency with the authority to regulate wireless facilities. If such standards are changed, the owner shall modify the installation to comply with the new standards within six months of the effective date of the new standards or regulations unless a different implementation schedule is required by the issuing agency. 3. Wireless facilities with a base located at grade shall be enclosed within a secure fence not less than six feet in height or the tower itself shall be equipped with an appropriate anti-climbing device. B. Aesthetics. 1. All wireless facilities. a. The provisions of this § 18.54.040section 38.29.040.B, BMC may be waived by the approval body as determined by chapterarticle 18.34, BMC19 of this chapter where it has been demonstrated that the waiver will result in superior compliance with the intent and purposes of this chaptertitle. b. All installations shall be as visually unobtrusive as is feasible. Facilities and equipment mounted on existing structures shall be visually incorporated into the structure or background by the use of architectural elements, color, screening or other methods. c. No lighted signage is permitted. d. All structures shall be constructed in conformance with the standards of the city’s adopted International Building Code. e. Visual screening of ground mounted equipment shall be provided in all residential areas and where a facility is located within a nonresidential area which is visible, from a viewpoint five feet above grade, from a residential area. Screening shall provide an opaque screen within 18 months of establishment and be a minimum of four feet in height. The screening may be of landscape materials or a fence which otherwise complies with this chaptertitle. The site shall comply with the landscaping provisions of chapter18.48, BMCarticle 26 of this chapter. f. Exterior facade materials and the character of equipment shelters used in residential areas shall be of materials commonly used in the immediate area. The architectural design of the exterior of the shelter shall be compatible with surrounding residential structures. The intent of the requirements of this subsection B.1.f may be met by providing opaque fencing or other visual screening compatible with the neighborhood, in compliance with all other sections of this chaptertitle, which will obscure the entire equipment shelter. The screening shall be in place prior to the commencement of operations of PROOFS Page 710 of 977 the facility. 2. Preferences. In order to justify the construction of a wireless structure, the applicant must demonstrate that higher ranking alternatives in the following hierarchy, beginning with subsection 2.a.(1) of this section, do not constitute feasible alternatives. The order of preference, from most preferred to least preferred and based on technical feasibility, for new wireless facilities is: a. Facility size. (1) Micro-scale wireless facilities or collocation on existing large scale wireless facilities; (2) Small scale wireless facilities; (3) Large scale wireless facilities 50 feet or less in height; and (4) Large scale wireless facilities in excess of 50 feet in height. b. A facility meeting the definition of stealth, as defined in chapter18.80, BMCarticle 42 of this chapter, is always preferred over a facility of the same scope which does not meet the definition of stealth. Stealth facilities may be required in historic districts and other circumstances. c. As appropriate, the following evidence may also be submitted to demonstrate compliance with this section: (1) That no existing wireless communications facility within the search area meets the applicant’s radio frequency engineering or height requirements; (2) That no structure within the search area has sufficient structural strength to support the applicant’s proposed antennas; or (3) That there are other verifiable limiting factors that render collocated or other more preferred options unsuitable or unreasonable. d. Self-supporting lattice or guyed structures are generally preferred over monopoles. 3. Special standards. The following special standards apply as shown in Table 54-2 38.29.040: a. Stealth installation is required; b. Wireless facilities are exempt from the height limitations of section 18.38.060, BMC38.21.060, but are subject to the height limitations of section 18.54.040, BMC38.29.040; c. The height limitation of the district may be exceeded by the least amount necessary to provide services but only when service may not otherwise be provided by a less intensive facility or an alternative site; and d. Only allowed when service may not be provided from an alternative site or a less intensive installation or set of installations. Table 28-2 38.29.040 PROOFS Page 711 of 977 335Zoning District Large-scale Small-scale Micro-scale Nonbroadcast PLI b b b - M-2 b b b - M-1 b b b - B-P c a,c b - B-3 c a,c b - B-2 c a,c b - B-1 c a,c b - R-O d a,c a,b - R-4 d a,c a,b - R-3 d a,c a,b - R-2 d a,c a,b - R-1 d a,c a,b - R-S d a,c a,b - 4. Stealth. a. Installations located within the conservation overlay district shall be stealth facilities. b. A stealth wireless facility may exceed the height limitations of the district by ten feet. 5. Small scale wireless facilities. All small scale wireless facilities established in the neighborhood conservation or entryway corridor overlay districts shall be installed in such a way as to maintain the historic or architectural character of the host site. All sites shall maintain the least possible visual obtrusiveness. 6. Large scale wireless facilities. No large scale wireless facility will be permitted unless the applicant demonstrates that the proposed facility can not be accommodated on an existing structure or by placement of a smaller facility. In order to justify the construction of a large-scale wireless facility, the applicant must demonstrate that higher ranking alternatives in the hierarchy, beginning with section 18.54.04038.29.040.B.2.a.(1), do not constitute feasible alternatives. Such demonstration must be made by submission of a statement of position, qualifications and experience by a licensed radio frequency engineer and address the required findings of this section. a. If collocation is feasible, the owner of the large scale wireless facility shall certify in writing, prior to final permit approval, that the owner will accept for collocation any FCC-licensed or licensing exempt wireless communication provider using compatible technology at reasonable and customary rates and terms up to the structural capacity to accommodate additional antennas. Collocation may be denied based on verifiable and substantial expectations of interference from additional users. Later failure to comply with the 335 What about UMU? This has been identified as a future edit. PROOFS Page 712 of 977 requirements supporting collocation may result in the revocation of city approvals or other penalties provided by the municipal code as the requirements of the title will have been violated. b. The city shall find the proposed guarantee, assurances or provisions for the perpetual maintenance and for removal of an abandoned large scale wireless facility to be adequate. c. A large scale wireless facility shall not either: (1) Exceed 190 feet in height; or (2) When located east of the alignment of Church Avenue/Sourdough Road and west of the extended alignment of Bozeman Trail Road/Arnica Drive; (a) Exceed 100 feet in height when its base elevation is greater than 4,800; (b) Exceed 40 feet in height when its base elevation is above 4,850 elevation; (c) Notwithstanding the provisions of subsections B.6.c.(2)(a) and (b) of this section, these restrictions shall not apply for those areas lying east of the extended alignment of Bozeman Trail Road/Arnica Drive and south of Interstate 90. d. Where multiple service providers will be utilizing the same ground area and/or support structure, a single structure shall be provided to house all ground based equipment. e. Special setbacks for large scale wireless facilities shall be provided and/or a design for internal structural collapse to avoid damage or injury to adjoining property or users shall be provided. (1) Residential district setbacks for a large scale wireless facility shall be 100 percent of facility height which may be reduced to no less than 50 percent upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state of Montana, establishing a smaller collapse area. (2) A large scale wireless facility in nonresidential zones shall provide a minimum setback from the property lines of 75 percent of facility height which may be reduced to no less than 30 percent of facility height upon the provision and approval of an engineered design, stamped by a professional structural engineer licensed to practice in the state of Montana, establishing a smaller collapse area. Large scale wireless facilities located within nonresidential zones, but adjacent to a residential zone or residentially developed areas, shall maintain a minimum setback from residential zoning or property boundaries of at least 50 percent of facility height. All installations shall maintain the minimum zoning district setbacks including special setbacks for entryway corridors. f. New large scale wireless facilities greater than 50 feet in height shall be designed in all respects to accommodate both the applicant’s antennas and antennas for at least two other additional users. A new large scale wireless facility may meet this requirement by correctly sizing the foundation and PROOFS Page 713 of 977 other structural elements to allow the future addition of height to the structure to accommodate additional users rather than immediately constructing the entire large scale wireless facility. This requirement may be waived by the governing body upon a showing of fact to overcome the presumption that multiple transmitters are desirable on the proposed facility. g. All large scale wireless facilities 50 feet or greater in height, regardless of the zoning district in which the structure is located, shall be located at least one mile, measured in a straight line, from any other large scale wireless facility that is 50 feet or greater in height. An exception to this requirement may be granted by the approval body when it is found and factually supported in the written record that the criteria of subsection B.6.i of this section are met and a critical need exists for the proposed location, or that a closer placement is desirable to advance the intent of this chapterarticle and titlechapter. h. A large scale wireless facility greater than 50 feet in height shall only be approved when the applicant can demonstrate in writing that no existing or approved micro-scale, small scale or large scale wireless facility within the required separation distance of the proposed site can accommodate the applicant’s proposed antenna. i. In addition to the other review criteria of this chaptertitle, affirmative findings for at least one of the following items must be made in order for the conditions necessary for approval to exist: (1) No existing or proposed structures adequate to support the proposed antennas are located within the geographic area are required to meet the applicant’s engineering and service requirements; (2) Existing or approved structures are not of sufficient height to meet the applicant’s engineering and service requirements and a combination of smaller scale facilities will not provide for adequate service delivery; (3) Existing or approved structures do not have sufficient structural strength to support the applicant’s proposed antenna and related equipment and can not be reinforced to provide sufficient structural strength; (4) The applicant’s proposed antennas would cause electromagnetic interference with the antenna on the existing or approved antenna support structures, or the antenna on the existing or approved antenna support structures would cause interference with the applicant’s proposed antenna; (5) Property owners or owners of existing or approved wireless facilities or locations for smaller scale installations are unwilling to accommodate the applicant’s needs; or (6) The applicant demonstrates that there are other factual and verifiable limiting factors that render existing or approved wireless facilities unsuitable. j. Height and number of users. A large scale wireless facility may be reviewed as a multiple phase project and be constructed over time as provided for in section 18.54.04038.29.040.B. Prior to the approval of a final site plan, or a building permit if it be a latter phase of a phased project, an applicant shall PROOFS Page 714 of 977 provide: (1) For the first 70 feet of tower height, for an applicant who is not themselves a wireless service provider, a copy of an executed lease from a wireless service provider of not less than 12 months duration; (2) For a height of greater than 70 feet and not more than 110 feet of structure height, one additional executed lease; (3) For a height greater than 110 feet, one additional executed lease; (4) Leases may be redacted to remove proprietary information but shall identify the parties. 7. Nonbroadcast. A nonbroadcast telecommunication facility located within an entryway overlay district, the neighborhood conservation overlay district or a residential zoning district shall be enclosed within a structure. The structure shall be of materials and architectural character which are compatible with the adjacent properties. The facility shall comply with all applicable side, front and rear yard setbacks. C. Administrative. 1. An inventory of existing sites utilized by the applicant shall be provided. The inventory shall note the feasibility of accommodating other users. The city may share this information with other applicants or interested parties to encourage collocation. 2. The public land and agencies exemption from full compliance with zoning in MCA 76-2-402 does not apply to private entities utilizing publicly owned lands. 3. Any antennas or antenna support structures that are not utilized for the provision of wireless services for a continuous period of six months shall be considered abandoned. All facilities shall be removed within six months of the cessation of operations. If a facility is not removed within six months the city shall remove the facility at the facility or landowner’s expense. Where multiple users share a facility, the nonoperational antennas and associated ground-mounted equipment shall be removed but any common equipment may be retained until all users have terminated the utilization of the site. 4. Any emergency power supply or other equipment installed at the facility must comply with § 18.38.070.H, BMC, Noise section 38.21.070.H. 5. No facilities may be established in residential areas which require employees to be present on a routine basis, with the exception of periodic maintenance activities, unless the zone allows offices as a permitted or conditional use and appropriate review has been completed. 6. Failure to comply with the terms of this chapter shall be grounds for facilities to be removed by action of the city at the facility or landowner’s expense. 7. Any modifications to existing wireless sites may only occur in compliance with the review procedures required in section 18.54.030, BMC38.29.030. 8. Denial of an application shall be made only after the review body has determined that specific criteria of this chaptertitle can not be met. Said determination shall be made in writing and shall include the reasons for the denial and the evidence which supports those reasons. Public opposition alone is not sufficient to deny the application. PROOFS Page 715 of 977 (Ord. No. 1645, § 18.54.040, 8-15-2005) CHAPTER 18.56. BOZEMAN WETLAND REGULATIONS ARTICLE 30. BOZEMAN WETLAND REGULATIONS Sec. 38.30.010. Title and applicability. These regulations shall be known as the Bozemancity wetland regulations and may be cited as the wetlands regulations. These wetland regulations shall govern areas in compliance with the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual of the U.S (1987 Corps Manual), or the most current wetland delineation manual sanctioned by the Army Corps of Engineers (ACOE)-Omaha District. This manual provides specific guidelines and methods to identify whether an area is a wetland and to determine the boundary between wetlands and uplands. BozemanThe city’s wetland regulations will pertain to wetlands with a direct hydrologic connection to “waters of the U.S.” (those wetlands that connect to a federally-regulated stream or river directly or via a series or watercourse, wetlands or ditches), and also to isolated wetlands with no direct connection to a water of the U.S. and exhibit positive wetland indicators for all three wetland parameters. The provisions contained in these regulations do not apply to wetlands created by a wholly manmade water source used for irrigation purposes or stormwater control. (Ord. No. 1645, § 18.56.010, 8-15-2005; Ord. No. 1693, § 19(18.56.010), 2-20-2007; Ord. No. 1761, exh. K(18.56.010), 7-6-2009) Sec. 38.30.020. Intent and purpose. A. Wetlands perform many important ecological functions. It is the intent and purpose of this chapterarticle to protect, preserve and enhance wetlands to provide the following functions: 1. Aquifer recharge; 2. Water storage; 3. Regional stream hydrology (discharge and recharge); 4. Flood control and storage; 5. Sediment control (filter for waste); 6. Nutrient removal from urban runoff; and 7. Erosion control. B. Wetlands provide important values that enhance the quality of life of community residents. It is the intent of this chapterarticle to protect, preserve and enhance wetlands to provide the following values: 1. Habitat for fish, wildlife and plants (including endangered and threatened); 2. Recreation; 3. Open space; 4. Visual and aesthetic; 5. Education and research; and 6. Historical, cultural and archaeological resources. C. Wetlands can present significant constraints to development. Wetlands typically form in areas characterized by poor drainage conditions which are ill-suited for most types of development. Development in these areas often involves extra expense resulting from considerations for site drainage, flood protection and facility maintenance. In addition, wetlands are characterized by hydric soils that are unstable for most types of development. Hydric soils tend PROOFS Page 716 of 977 to compress under the weight of structures and decompose when drained. Therefore, costs of development may be greater due to complex engineering design requirements, or the need to excavate and replace the soils. It is the intent of these regulations to protect public and private facilities and structures from damage, and to minimize public and private development and maintenance costs. D. It is not the intent of this chapterarticle to prohibit all activities within regulated areas and associated buffers, but rather to encourage the avoidance of regulated activities within the regulated areas and to require best management practices in regulated areas. E. Nothing in this chapterarticle shall be construed to prevent irrigation companies from diverting and carrying water under historic water rights or owners of such rights from exercising those historic rights. F. Nothing in this chapterarticle shall be construed to prevent compliance with applicable state or federal statutes and regulations. (Ord. No. 1645, § 18.56.020, 8-15-2005; Ord. No. 1693, § 19(18.56.020), 2-20-2007; Ord. No. 1761, exh. K(18.56.020), 7-6-2009) Sec. 38.30.030. Application of wetland regulations. A. These regulations shall apply to any regulated activity which may impact wetlands as defined in section 18.80.3170, BMC38.42.3240 known prior to or discovered through the development review process, and verified through a site-specific wetlands boundary determination. When any regulated activity is proposed a wetlands boundary determination shall be conducted. If the determination finds that there are no wetlands present on the subject tract, these regulations shall not apply. If, however, wetlands are found on the subject tract the proposal shall be subject to these regulations. The provisions of this chapterarticle shall be applied in addition to any other applicable regulations of this chaptertitle. 1. The wetlands boundary determination shall be prepared in accordance with the 1987 U.S. Army Corps of Engineers Wetland Delineation Manual of the U.S (1987 Corps Manual), or the most current wetland delineation manual sanctioned by the Army Corps of Engineers (ACOE)-Omaha District by a qualified wetland professional. 2. A qualified wetland professional is an individual with a minimum of a bachelor’s degree in a water resource related field, five years experience, and/or a professional wetland scientist certification. B. Isolated wetlands with a size of less than 400 square feet, regardless of property boundaries, are exempt from this chapterarticle unless the wetland provides habitat for the following species: 1. Plant, animal or other wildlife species listed as threatened or endangered by the United States Fish and Wildlife Service; and/or 2. Plant, animal or other wildlife species listed as a species of concern, species of potential concern, or species on review by the Montanastate department of fish, wildlife and parks and the Montanastate natural heritage program. C. Any development for which the watercourse setback requirements of section 18.42.100, BMC38.23.100 are provided is considered to have addressed the concerns of this articlechapter and is exempt from this chapterarticle. D. This chapterarticle is not intended to repeal, abrogate, supersede or impair any existing federal, state, or local law, easement, covenant or deed restriction. However, if this chapterarticle imposes greater or more stringent restrictions, the provisions of this chapterarticle PROOFS Page 717 of 977 shall prevail. Specifically, if a regulated activity pursuant to this chapterarticle also requires authorization under section 404 of the Clean Water Act from the U.S. Army Corps of Engineers, the applicant shall meet any greater or more stringent restrictions set forth in this chapterarticle in addition to and independent of the restrictions of such permit. (Ord. No. 1645, § 18.56.030, 8-15-2005; Ord. No. 1693, § 19(18.56.030), 2-20-2007; Ord. No. 1761, exh. K(18.56.030), 7-6-2009) Sec. 38.30.040. Wetlands review board powers and duties. A. In addition to the duties established by chapter18.62, BMCarticle 33 of this chapter, the WRB shall have the following powers and duties: 1. Review wetland delineation boundaries and functional assessments for wetlands that may be impacted by regulated activities; 2. Based on wetland functional assessments and other submittal materials, make recommendations to the planning director, board of adjustment (BOA), or city commission to allow or disallow the regulated activity; 3. Recommend to the planning director, BOA, or city commission appropriate wetland buffer widths based on the wetland delineation, functional assessment, and other submittal materials; 4. Recommend to the planning director, BOA, or city commission additional conditions on regulated activities that are reasonably necessary to carry out the purpose and intent of this chapterarticle; 5. Provide recommendations to applicants regarding alternatives to design of developments that minimize impacts to wetlands and other aquatic resources; and 6. Testify as needed before all boards, commissions and agencies on any matter affecting wetlands. (Ord. No. 1645, § 18.56.040, 8-15-2005; Ord. No. 1693, § 19(18.56.040), 2-20-2007; Ord. No. 1761, exh. K(18.56.040), 7-6-2009) Sec. 38.30.050. Wetlands mapping. A. The Bozeman Area Wetlands Map shall be adopted by resolution and shall, in addition to the submittal materials of section 18.78.130, BMC38.41.130, be used to implement this chapterarticle. B. The Bozeman Area Wetlands Map may be amended by resolution by means of the performance of a wetland boundary determination. Wetland boundary determinations shall be performed in accordance with the procedures specified in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands (January 1987). 1. A CD-ROM containing the wetland boundary determination and raw survey data (if applicable) shall be provided for use in amending the Bozeman Area Wetland Map. The data shall be reported in UTM Zone 12 coordinates and NAD83 datum. C. Prior to annexation, wetland boundary determinations and functional assessments shall be prepared for all wetlands on the property to be annexed. (Ord. No. 1645, § 18.56.050, 8-15-2005; Ord. No. 1693, § 19(18.56.050), 2-20-2007; Ord. No. 1761, exh. K(18.56.050), 7-6-2009) Sec. 38.30.060. Regulated activities. A. No person shall conduct any of the following regulated activities within a regulated wetland area, as described in section 18.56.03038.30.030, without first having the proposed PROOFS Page 718 of 977 activity reviewed by the WRB and approved by the planning director, BOA, or city commission as appropriate. Any activity in a regulated area which reduces the size of a wetland or reduces the degree to which a wetland performs any function is subject to the requirements of this chapterarticle, including but not limited to: 1. Placement of any material, including without limitation any soil, sand, gravel, mineral, aggregate, organic material or water; 2. Construction, installation or placement of any obstruction or the erection of a building, trail, boardwalk or other structure; 3. Removal, excavation or dredging of solid material of any kind, including without limitation any soil, sand, gravel, mineral, aggregate or organic material; 4. Removal of any existing vegetation or any activity which will cause any loss of vegetation in a wetland; 5. Alteration of the water level or water table by any means, including without limitation draining, ditching, trenching, impounding or pumping; and 6. Disturbance of existing surface drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics by any means, including without limitation grading and alteration of existing topography. B. The following activities are permissible in a wetland area, without review by the WRB and approval by the city, if the activities do not reduce the size of a wetland or significantly reduce the degree to which a wetland performs any function and in compliance with any other applicable state or federal law: 1. Maintenance of an existing and lawful public or private road, structure or facility, including but not limited to drainage facilities, water conveyance structures, dams, fences or trails, or any facility used to provide transportation, electric, gas, water, telephone, telecommunications or other services provided that these activities do not materially change or enlarge any road, structure or facility; 2. Maintenance of an existing farm or stock pond, irrigation ditch, agricultural fence or drainage system; 3. Weed control consistent with a Noxious Weed Management and Revegetation Plan approved by the Gallatin county weed control district; 4. Continuation of existing agricultural practices such as the cultivation and harvesting of hay or pasturing of livestock, or change of agricultural practices which has no greater impact on wetland function; 5. Conservation or preservation of soil, water, vegetation, fish and other wildlife; 6. Outdoor recreational activities, such as fishing, bird watching, hiking, rafting and swimming which do not harm or disturb the wetland; 7. The harvesting of wild crops; 8. Education and scientific research; 9. Minor improvements and landscape maintenance within a required wetland buffer but outside the boundaries of a delineated wetland, including but not limited to the pruning of trees, mowing of grass, and removal of dead vegetation and debris; and 10. Activities in a wetland set forth in section 18.56.09038.30.090, including but not limited to removal of debris and maintenance of vegetation and wildlife habitat. PROOFS Page 719 of 977 (Ord. No. 1645, § 18.56.060, 8-15-2005; Ord. No. 1693, § 19(18.56.060), 2-20-2007; Ord. No. 1761, exh. K(18.56.060), 7-6-2009) Sec. 38.30.070. Application requirements and procedures for regulated activities in regulated wetland areas. A. Review. All proposals for regulated activities in regulated wetland areas shall be reviewed by the WRB. The applicant shall prepare a functional assessment for all reviewed regulated wetland areas. Based on the prepared functional assessment and other submittal materials, the WRB shall forward a recommendation of approval, conditional approval or denial to the planning director or city commission. B. Approval. All proposals for regulated activities in regulated wetland areas shall be reviewed and approved, conditionally approved, or denied by the city in accordance with Chapterarticles 18.063, 18.084, 18.3419 and 18.36, BMC20 of this chapter prior to commencement of the regulated activity. 1. If a regulated activity is proposed for a regulated wetland area, but the regulated activity is not proposed in conjunction with a land development proposal, the applicant shall submit a sketch plan application for review and recommendation by the WRB, and review and approval by the planning director. C. Submittal materials. The information required in section 18.78.130, BMC38.41.130 shall be submitted for all regulated activities proposed for regulated wetland areas. D. Noticing. The review of regulated activities proposed for regulated wetland areas shall comply with the noticing requirements of chapter18.76, BMCarticle 40 of this chapter. (Ord. No. 1645, § 18.56.070, 8-15-2005; Ord. No. 1693, § 19(18.56.070), 2-20-2007; Ord. No. 1761, exh. K(18.56.070), 7-6-2009) Sec. 38.30.080. Review standards. A. The city may approve, conditionally approve or deny a regulated activity in a regulated wetland area based on a recommendation from the WRB, and if: 1. The applicant has demonstrated that all adverse impacts on a wetland have been avoided; or 2. The applicant has demonstrated that any adverse impact on a wetland has been minimized; the activity will result in minimal impact or impairment to any wetland function and the activity will not result in an adverse modification of habitats for, or jeopardize the continued existence of, the following: a. Plant, animal or other wildlife species listed as threatened or endangered by the United States Fish and Wildlife Service; and/or b. Plant, animal or other wildlife species listed as a species of concern, species of potential concern, or species on review by the Montanastate department of fish, wildlife and parks and the Montanastate natural heritage program; or 3. The applicant has demonstrated that the project is in the public interest, having considered and documented: a. The extent of the public need for the proposed regulated activity; b. The functions and values as determined by a state of Montana accepted method of functional assessment of the wetland that may be affected by the proposed regulated activity; c. The extent and permanence of the adverse effects of the regulated activity on PROOFS Page 720 of 977 the wetland and any associated watercourse; d. The cumulative adverse effects of past activities on the wetland; and e. The uniqueness or scarcity of the wetland that may be affected. (Ord. No. 1645, § 18.56.080, 8-15-2005; Ord. No. 1693, § 19(18.56.080), 2-20-2007; Ord. No. 1761, exh. K(18.56.080), 7-6-2009) Sec. 38.30.090. Wetland permit conditions. A. The WRB may recommend conditions of approval for proposed regulated activities, and the city may conditionally approve proposed regulated activities, subject to the following conditions: 1. Requiring the provision of a wetland buffer of a size appropriate for the particular proposed activity and the particular regulated wetland area; 2. Requiring that structures be appropriately supported and elevated and otherwise protected against natural hazards; 3. Modifying waste disposal and water supply facilities; 4. Requiring deed restrictions or covenants regarding the future use and subdivision of lands, including but not limited to the preservation of undeveloped areas as open space and restrictions on vegetation removal; 5. Restricting the use of an area, which may be greater than the regulated wetland area; 6. Requiring erosion control and stormwater management measures; 7. Clustering structures or development; 8. Restricting fill, deposit of soil and other activities which may be detrimental to a wetland; 9. Modifying the project design to ensure continued water supply to the regulated wetland; and 10. Requiring or restricting maintenance of a regulated wetland area for the purpose of maintaining wetland functions. 11. A yearly mitigation monitoring report to be submitted to the WRB on a yearly basis, with the due date to be determined on a case-by-case basis. 12. A deed restriction to be filed with the Gallatin county clerk stating the measures that will be taken to protect all water resources, mitigation, and buffer areas in perpetuity. 13. That all reasonable effort has been made to limit indirect impacts to vegetation, faunal interspersion and connectivity, and hydrological connectivity in the site design (e.g., any structures, boardwalks, viewing platforms, or bridges, which are constructed within wetlands will have at least a two-foot space between the bottom chord of the structure and the wetland surface elevation to limit shading impacts336 336 There seems to be language missing; please supply the language you wish to use. Please edit this section to read: “That all reasonable effort has been made to limit indirect impacts to vegetation, faunal interspersion and connectivity, and hydrological connectivity in the site design (e.g., any structures, boardwalks, viewing platforms, or bridges, which are constructed within wetlands will have at least a two-foot space between the bottom chord of PROOFS Page 721 of 977 and allow wetland vegetation to persist). 14. The WRB may recommend conditions to mitigate for locally-regulated (wetlands not connected to a water of the U.S.) infringement upon watercourses, buffers, or negative indirect or direct effects on the functionality of wetlands, watercourses or buffers. (Ord. No. 1645, § 18.56.090, 8-15-2005; Ord. No. 1693, § 19(18.56.090), 2-20-2007; Ord. No. 1761, exh. K(18.56.090), 7-6-2009) Sec. 38.30.100. Appeals. Depending upon the application procedure involved, decisions related to the approval or denial of regulated activities proposed for regulated wetland areas may be appealed in accordance with the provisions of chapter18.66, BMCarticle 35 of this chapter. (Ord. No. 1645, § 18.56.100, 8-15-2005; Ord. No. 1693, § 19(18.56.100), 2-20-2007; Ord. No. 1761, exh. K(18.56.100), 7-6-2009) Sec. 38.30.110. Enforcement. This chapterarticle shall be enforced in accordance with the provisions contained in chapter18.64, BMCarticle 34 of this chapter. (Ord. No. 1645, § 18.56.110, 8-15-2005; Ord. No. 1693, § 19(18.56.110), 2-20-2007; Ord. No. 1761, exh. K(18.56.110), 7-6-2009) CHAPTER 18.58. FLOODPLAIN REGULATIONS ARTICLE 31. FLOODPLAIN REGULATIONS* *State law reference—Floodplain and floodway management, MCA 76-5-101 et seq. Sec. 38.31.010. Title. These regulations shall be known and cited as the Bozemancity floodplain regulations. This chapterarticle is in accordance with the authority of the laws of the state of Montana exercised by the city, and other authority as may be possessed by the city. (Ord. No. 1645, § 18.58.010, 8-15-2005; Ord. No. 1693, § 20(18.58.010), 2-20-2007) Sec. 38.31.020. Purpose. A. This chaptertitle has established regulations to prohibit development within floodplains in order to protect public health and safety, safeguard water quality, provide for wildlife habitat and accomplish other public purposes. However, there are certain limited circumstances where development within the floodplain either currently exists or may be permitted from time to time to advance a public purpose. This chapterarticle provides standards which must be met in order to promote the public health, safety and general welfare, to minimize flood losses in areas subject to flood hazards, and to promote wise use of the floodplain when those limited circumstances occur. This chapterarticle has been established with the following purposes intended: 1. To guide development of the 100-year floodplain within the Bozeman city limits consistent with the enumerated findings by: a. Establishing zoning regulations coincident with and applicable to those areas the structure(s) and the wetland surface elevation to limit shading impacts 320 and allow wetland vegetation to persist). PROOFS Page 722 of 977 at risk of flooding with special requirements and regulations to protect the public welfare; b. Recognizing the right and need of watercourses to periodically carry more than the normal flow of water; c. Participating in coordinated efforts of federal, state and local management activities for 100-year floodplains; d. Ensuring the regulations and minimum standards adopted, insofar as possible, balance the greatest public good with the least private injury; and e. Carry out the provisions of this chapterarticle in a fashion consistent with the remainder of this chaptertitle and the public policies set forth in the city’s growth policy consistent with the authority of title 76, chapter 5, part 3 (MCA 76-5-301 et seq.). 2. Specifically, it is the purpose of this chapterarticle to: a. Restrict or prohibit uses that are dangerous to health, safety and property in times of flood, or that cause increased flood heights and velocities; b. Require that uses vulnerable to floods, including public facilities, be provided with flood protection at the time of initial construction; c. Identify lands unsuitable for certain development purposes because of flood hazards; d. Minimize the need for rescue and relief efforts associated with flooding undertaken at the expense of the general public; e. Ensure that potential buyers are notified that property is within a 100-year floodplain and subject to the provisions of these regulations; f. Ensure that those who occupy 100-year floodplains assume responsibility for their actions; and g. Protect water quality and persons and property located downstream. (Ord. No. 1645, § 18.58.020, 8-15-2005; Ord. No. 1693, § 20(18.58.020), 2-20-2007) Sec. 38.31.030. Jurisdictional area. This chapterarticle shall apply to all lands within the boundaries of the city, shown on the official floodplain maps, including any amendments or revisions, as being located within a 100- year floodplain district or that may otherwise be identified as lying within a 100-year floodplain through additional floodplain delineation, engineering analysis, topographic survey, or other objective and factual basis. (Ord. No. 1645, § 18.58.030, 8-15-2005; Ord. No. 1693, § 20(18.58.030), 2-20-2007) Sec. 38.31.040. Floodplain regulation establishment and applicability. These floodplain regulations are hereby established and are applicable in all areas defined by the base flood elevations and 100-year floodplains as delineated in the flood insurance study, or other means specified in section 18.58.030, BMC38.31.030. The basis for the flood insurance study is a scientific and engineering report entitled “The Flood Insurance Study for the City of Bozeman, Montana,” dated July 15, 1988, with accompanying flood insurance rate maps and flood boundary/floodway maps. The official floodplain maps, together with the flood insurance study are on file in the office of the city floodplain administrator. The floodplain regulations are hereby established in all areas subject to flooding. Depiction on the official zoning map of the city is not required for this district. PROOFS Page 723 of 977 (Ord. No. 1645, § 18.58.040, 8-15-2005; Ord. No. 1693, § 20(18.58.040), 2-20-2007) Sec. 38.31.050. Abrogation and greater responsibility. It is not intended by this chapterarticle to repeal, abrogate, or impair any existing easements, covenants, deed restrictions, or underlying zoning. However, where this chapterarticle imposes greater restrictions, the provisions of this chapterarticle shall prevail. (Ord. No. 1645, § 18.58.050, 8-15-2005; Ord. No. 1693, § 20(18.58.050), 2-20-2007) Sec. 38.31.060. Floodplain administrator. The city floodplain administrator has been designated to be the city engineer. The responsibilities of this position are outlined in section 18.58.130, BMC38.31.130. (Ord. No. 1645, § 18.58.060, 8-15-2005; Ord. No. 1693, § 20(18.58.060), 2-20-2007) Sec. 38.31.070. Regulation interpretation. The interpretation and application of the provisions of these regulations shall be considered minimum requirements and liberally construed in favor of the governing body and not deemed a limitation or repeal of any other powers granted by state statute or self-government status. (Ord. No. 1645, § 18.58.070, 8-15-2005; Ord. No. 1693, § 20(18.58.070), 2-20-2007) Sec. 38.31.080. Compliance with regulations. No structure or land use shall be located, extended, converted or structurally altered without full compliance with the provisions of this chaptertitle, these specific regulations, and other applicable regulations. These regulations meet or exceed the minimum floodplain development requirements as set forth by the Montanastate board department of natural resources and conservation and the National Flood Insurance Program. (Ord. No. 1645, § 18.58.080, 8-15-2005; Ord. No. 1693, § 20(18.58.080), 2-20-2007) Sec. 38.31.090. Flood hazard evaluation. A. General. Land subject to being flooded by a flood of 100-year frequency as defined by title 76, chapter 5, Montana Code Annotated (MCA 76-5-101 et seq.), or land deemed to be subject to flooding by the city, shall not be subdivided or developed for building or residential purposes, or other uses that may increase or aggravate flood hazards to life, health or welfare, or that may be prohibited by state or local floodplain or floodway regulations. B. Requirement for study. 1. If any portion of a proposed subdivision or other development is: a. Within 1,000 horizontal feet and less than ten vertical feet of a watercourse draining an area of 25 square miles or more; and b. No official floodplain or floodway delineation study of the watercourse has been made; then c. The subdivider or other developer shall provide a floodplain analysis report establishing the calculated 100-year frequency water surface elevations and 100-year floodplain boundaries. The analysis and report shall be prepared by a licensed professional engineer qualified in this field of work. 2. If any portion of a proposed subdivision or other development is: a. Within 1,000 horizontal feet and less than ten vertical feet of a watercourse draining an area less than 25 square miles; and b. No official floodplain or floodway delineation study of the watercourse has PROOFS Page 724 of 977 been made; then c. The subdivider or other developer shall: (1) Demonstrate to the satisfaction of the city engineering department that the 100-year peak runoff of the watercourse will not affect the subdivision; or (2) Delineate the existing and proposed 100-year flood limits of the stream or streams within 1,000 feet of the proposed subdivision and specify any mitigation that may be required to protect the proposed subdivision and adjacent properties from potential flooding and erosion damage due to any proposed changes within the delineated flood limits. d. The developer’s professional engineer, licensed in the state of Montana, shall provide written certification to the city that the mapped flood locations and proposed mitigation shall protect against damage by the 100-year flood. 3. Submission of report. The report shall be submitted at the time of preliminary plat or plan application. The report may be submitted, upon the request of the city commission or development review committee, to the floodplain management section, water resources division, Montanastate department of natural resources and conservation, for review and concurrence. 4. Contents of report. The required report shall include the following information: a. Certification. Certification of the report by a registered professional engineer. b. Overall plan view. An overall scaled plan view (project map) with identified scale for vertical and horizontal distance showing the following: (1) Watercourse; (2) Floodplain boundaries; (3) Location of property; (4) Contours; (5) Cross sections; (6) Bridges or other constrictions in the floodplain; and (7) USGS gauging stations (if any). c. Benchmark. The location and elevation of a temporary benchmark established within the subdivision and referenced to mean sea level with appropriate elevation adjustment. d. Cross sectional information. (1) Cross sections shall follow the applicable guidelines established by the Montanastate department of natural resource conservation. If applicable guidelines are not available, cross section information shall be as follows: (a) Cross section elevations and stations should be determined at points representing significant breaks in ground slope and at changes in the hydraulic characteristics of the floodplain (e.g., points where ground cover, soil or rock conditions change). Elevations must be reported in NAVD88 or NGVD29 datum. PROOFS Page 725 of 977 (b) Each cross section shall cross the entire floodplain. The cross section alignment should be perpendicular to the general flow of the watercourse, the slope of the channel and the hydraulic characteristics of the reach. A minimum of four cross sections are required over the entire reach with at least two cross sections at the property where the elevations are desired. Additional cross sections must be taken at bridges, control structures or natural constrictions in topography. (2) Photogrammetric methods may be used in lieu of cross sections whenever appropriate and when reviewed and approved by the city engineer. e. Bridges. Descriptions and sketches of all bridges within the reach, showing unobstructed waterway openings and elevations. f. Water surface. Elevations of the water surface determined by survey as part of each valley cross section. g. Supporting documentation. Engineering report of computer computations, calculations and assumptions that may include: (1) Hydrology (research of published hydrology or calculations showing how hydrology was derived); (2) Input files (hard copy and on diskette or CD-ROM); and (3) Output files (hard copy and on diskettes or CD-ROM). C. Waiver of requirement. The city engineer may waive this requirement where the subdivider contacts the water resources division, Montanastate department of natural resources and conservation, and that agency states in writing that the data indicate that the proposed subdivision is not in the flood hazard area as defined in this chapterarticle. (Ord. No. 1645, § 18.58.090, 8-15-2005; Ord. No. 1693, § 20(18.58.090), 2-20-2007) Sec. 38.31.100. Rules for interpretation of floodplain district boundaries. The boundaries of the 100-year floodway shall be determined by scaling distances on the official floodplain maps and using the floodway data table contained in the flood insurance study report. The maps may be used as a guide for determining the 100-year floodplain boundary, but the exact location of the floodplain boundary shall be determined where the base flood elevation intersects the natural ground. The floodplain administrator may require an on-site survey and staking of the floodplain boundary prior to issuance of any permit or any development undertaken following issuance of a permit. (Ord. No. 1645, § 18.58.100, 8-15-2005; Ord. No. 1693, § 20(18.58.100), 2-20-2007) Sec. 38.31.110. Warning and disclaimer of liability. This chapterarticle does not imply that areas outside the delineated floodplain boundaries or permitted land uses will always be totally free from flooding or flood damages. These regulations shall not create a liability or cause of action against the city or any officer or employee thereof for flood damages that may result from reliance upon these regulations. (Ord. No. 1645, § 18.58.110, 8-15-2005; Ord. No. 1693, § 20(18.58.110), 2-20-2007) PROOFS Page 726 of 977 Sec. 38.31.120. Disclosure provision. All owners of property in an identified 100-year floodplain as indicated on the official floodplain maps must notify potential buyers or their agents that such property is subject to the provisions of this chapterarticle. (Ord. No. 1645, § 18.58.120, 8-15-2005; Ord. No. 1693, § 20(18.58.120), 2-20-2007) Sec. 38.31.130. Administration of regulations. A. As provided in section 18.58.060, BMC38.31.060, the city floodplain administrator has been designated by the city commission, and has the responsibility of such position as outlined in this chapterarticle. B. Section 18.42.100, BMC38.23.100 has established a public policy to avoid development within floodplains, along with certain exceptions. The administration of these regulations shall be done in a fashion consistent with both the letter and spirit of that section. C. The city floodplain administrator is appointed with the authority to review floodplain development permit applications, proposed uses and construction to determine compliance with these regulations. The city floodplain administrator is required to ensure all necessary permits have been received from those governmental agencies from which approval is required by federal and state law and local codes, including section 404 of the Federal Water Pollution Control Act of 1972, 33 USC 1334, and under the provisions of the Natural Streambed and Land Preservation Act. 1. Additional factors. Floodplain development permits shall be granted or denied by the city floodplain administrator on the basis of whether the proposed establishment, alteration or substantial improvement of an artificial obstruction meets the requirements of this chapterarticle and other requirements of this chaptertitle. Additional factors that shall be considered for every permit application are: a. The danger to life and property due to increased flood heights, increased floodwater velocities or alterations in the pattern of flood flow caused by encroachments; b. The danger that materials may be swept onto other lands or downstream to the injury of others; c. The proposed water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary conditions; d. The susceptibility of the proposed facility and its contents to flood damage and the effects of such damage on the individual owner; e. The importance of the services provided by the facility to the community; f. The requirement of the facility for a waterfront location; g. The availability of alternative locations not subject to flooding for the proposed use; h. The compatibility of the proposed use with existing development and anticipated development in the foreseeable future; i. The relationship of the proposed use to the growth policy and floodplain management program for the area; j. The safety of access to property in times of flooding or for ordinary and emergency services; and k. Such other factors as are in harmony with the purposes of this chaptertitle, PROOFS Page 727 of 977 these regulations, the Montana Floodplain and Floodway Management Act and the National Flood Insurance Program. D. A floodplain development permit application is considered to have been automatically granted 60 days shall be reviewed and acted upon within 180 working days after the date of receipt of the complete application by the city floodplain administrator. Unless the applicant has been notified that the permit is denied, conditionally approved or If additional information pertinent to the permit review process is required the time for review shall stop and restart with submittal of the additional information. A floodplain permit shall not act as a waiver or variance from the other requirements of this chaptertitle. E. The city floodplain administrator shall adopt such administrative procedures as may be necessary to efficiently administer the provision of these regulations. F. The city floodplain administrator shall maintain such files and records as may be necessary to document nonconforming uses, base flood elevations, floodproofing and elevation certifications, fee receipts, the issuance of permits, agenda, minutes, records of public meetings, and any other matters related to floodplain management in the city. Such files and records shall be open for public inspection. In matters of litigation, the city attorney may restrict access to specific records. G. The city floodplain administrator may require whatever additional information is necessary to determine whether the proposed activity meets the requirements of these regulations. Additional information may include hydraulic calculations assessing the impact on base flood elevations or velocities, level survey or certification by a registered land surveyor, professional engineer or licensed architect that the requirements of these regulations are satisfied. H. Upon receipt of an application for a permit or a variance, the city floodplain administrator shall prepare a notice according to the requirements of chapter18.76, BMCarticle 40 of this chapter. I. Copies of all permits granted must be sent to the Montanastate department of natural resources and conservation in Helena, Montana. 1. In riverine situations, notifications by the city floodplain administrator must be made to adjacent communities, the floodplain management section (DNRC) and FEMA prior to any alteration or relocation of a stream. The flood-carrying capacity within the altered or relocated portion of any stream must be maintained. Erosion control measures shall be incorporated to ensure stability of altered channels and stream banks. (Ord. No. 1645, § 18.58.130, 8-15-2005; Ord. No. 1693, § 20(18.58.130), 2-20-2007; Ord. No. 1769, § 11, 12- 28-2009) Sec. 38.31.140. Permit applications. A. Activities or uses that require the issuance of a permit, including the expansion or alteration of such uses, shall not be initiated, established or undertaken until a permit has been issued by the city floodplain administrator. B. Permit applicants shall be required to furnish the following information as deemed necessary by the city Floodplain Administrator for determining the suitability of the particular site for the proposed use: 1. Three sets of plans drawn to scale (including dimensions) showing the nature, location and elevation of the lot; existing and proposed structure locations; fill, storage or materials site; floodproofing measures; mean sea level elevation of first floor of proposed structures; and location of the channel and limits of 100-year PROOFS Page 728 of 977 floodplain boundary; 2. A plan view of the proposed development indicating external dimensions of structures; street or road finished grade elevations; well locations; individual sewage treatment and disposal sites; excavation and/or fill quantity estimates; and site plan and/or construction plans; 3. Specifications for floodproofing, filling, excavating, grading, bank stabilization, storage of materials and location of utilities; 4. A professional engineer’s or registered architect’s design calculations and certification that the proposed activity has been designed to be in compliance with these regulations; 5. Certification of floodproofing and/or elevation shall be provided on a standard form available from the city floodplain administrator; and 6. Adjoining owners. Names and addresses of record owners of lots and tracts immediately adjoining the proposed floodplain permit. C. To determine that the permit specifications and conditions have been completed, applicants who have received permits are required to furnish the following at the time of an on-site conformance inspection: 1. Certification by a registered professional engineer or licensed land surveyor of the actual mean sea level elevation of the lowest floor (including basement) of all new, altered or substantially improved buildings; 2. If floodproofing techniques were used for buildings, the mean sea level elevation to which the floodproofing was accomplished must be certified by a structural engineer or licensed architect in the same manner; 3. Certification shall also be required for artificial obstructions other than buildings, that the activity was accomplished in accordance with these regulations and the design plans submitted with the application for the permit activity. This certification may be waived by the city floodplain administrator if it can be clearly ascertained by a site inspection that the activity was accomplished in accordance with these regulations; and 4. Certification of floodproofing and/or elevation shall be provided on a standard form available from the city floodplain administrator. (Ord. No. 1645, § 18.58.140, 8-15-2005; Ord. No. 1693, § 20(18.58.140), 2-20-2007) Sec. 38.31.150. Emergency waiver. A. Emergency repair and replacement of severely damaged public transportation facilities, public water and sewer facilities, public utility electricity and natural gas distribution facilities, and flood control works may be authorized. Floodplain development permit requirements may be waived if: 1. Upon notification and prior to emergency repair and/or replacement, the city floodplain administrator determines that an emergency condition exists warranting immediate action; and 2. The city floodplain administrator agrees upon the nature and type of proposed emergency repair and/or replacement. B. Authorization to undertake emergency repair and replacement work may be given verbally if the city floodplain administrator feels that such a written authorization would unduly delay the emergency works. Such verbal authorization must be followed by a written authorization PROOFS Page 729 of 977 describing the emergency condition, and the type of emergency work agreed upon and stating that a verbal authorization had been previously given. (Ord. No. 1645, § 18.58.150, 8-15-2005; Ord. No. 1693, § 20(18.58.150), 2-20-2007) Sec. 38.31.160. Review; variances; appeals. Appeals and variances from this chapterarticle may be taken as set forth in chapter18.66, BMCarticle 35 of this chapter. The city floodplain administrator shall maintain records of the variance notification and actions, including justification for their issuance, and forward copies of all variance actions to the Montanastate department of natural resources and conservation and the Federal Emergency Management Agency. (Ord. No. 1645, § 18.58.160, 8-15-2005; Ord. No. 1693, § 20(18.58.160), 2-20-2007) Sec. 38.31.170. Floodplain development; compliance. Any use, arrangement or construction not in compliance as authorized by permit, shall be deemed a violation of this chapterarticle and punishable as provided in chapter18.64, BMCarticle 34 of this chapter. An applicant is required to submit certification by a registered professional engineer, architect, land surveyor or other qualified person designated by the city floodplain administrator that finished fill and lowest building floor elevations, floodproofing, hydraulic design or other flood protection measures were accomplished in compliance with these regulations. (Ord. No. 1645, § 18.58.170, 8-15-2005; Ord. No. 1693, § 20(18.58.170), 2-20-2007) Sec. 38.31.180. Emergency preparedness; planning. In formulating community development goals, the community shall consider the development of a plan for evacuating users of all development located within floodprone areas. This plan should be developed, filed with, and approved by appropriate community emergency management authorities. (Ord. No. 1645, § 18.58.180, 8-15-2005; Ord. No. 1693, § 20(18.58.180), 2-20-2007) Sec. 38.31.190. Applications; specific standards. The minimum floodplain development standards listed in this chapterarticle apply to the floodway and floodway fringe portions of the 100-year floodplain as delineated on the flood hazard area maps or other flood hazard areas as may be determined by section 18.58.040, BMC38.31.040. (Ord. No. 1645, § 18.58.190, 8-15-2005; Ord. No. 1693, § 20(18.58.190), 2-20-2007) Sec. 38.31.200. Floodway--Uses allowed without floodplain permits. A. When a site specific exemption or relaxation of the standards of section 18.42.100, BMC38.23.100 allow utilization of a portion of the floodplain, the following uses shall be allowed without a permit within the floodway, provided that such uses conform to the provisions of sections 18.58.35038.31.350 through § 18.58.390, BMC38.31.390; are not prohibited by any other ordinance, resolution or statute; and do not require fill, excavation, permanent storage of materials, or equipment or structures other than portable structures: 1. Agricultural uses; 2. Accessory uses such as loading and parking areas associated with industrial and commercial facilities; 3. Private and public recreational uses such as golf courses, driving ranges, archery ranges, picnic grounds, boat-launching ramps, parks, wildlife management and natural areas, fish hatcheries, fishing areas, and hiking or horseback riding trails; 4. Residential uses such as lawns, gardens, parking areas and play areas; PROOFS Page 730 of 977 5. Irrigation and livestock supply wells, provided that they are located at least 500 feet from domestic water supply wells; and 6. Fences, except permanent fences crossing channels. (Ord. No. 1645, § 18.58.200, 8-15-2005; Ord. No. 1693, § 20(18.58.200), 2-20-2007) Sec. 38.31.210. Same Floodway--Uses requiring floodplain permits. A. When a site specific exemption or relaxation of the standards of section 18.42.100, BMC38.23.100 allow utilization of a portion of the floodplain, the following artificial obstructions may be permitted in the floodway subject to the issuance of a permit by the city floodplain administrator: 1. Excavation of material from pits and pools provided that: a. A buffer strip of undisturbed land is left between the edge of the channel and the edge of the excavation. This buffer strip must be of sufficient width to prevent flood flows from channeling into the excavation; b. The excavation meets all applicable laws and regulations of other local and state agencies; and c. Excavated material is disposed of or stockpiled outside the floodway; 2. Railroad, highway and street stream crossings provided the crossings are designed to offer minimal obstruction to flood flow. Stream crossings shall not increase the elevation of the 100-year flood more than one-half foot nor cause a significant increase in flood velocities; 3. Limited filling for highway, street and railroad embankments not associated with stream crossings, provided that: a. Reasonable alternate transportation routes outside the designated floodway are not available; and b. Such floodway encroachment is located as far from the stream channel as possible and shall not result in a cumulative increase in base flood elevations, after allowable encroachments into the floodway fringe, exceeding one-half foot; 4. Buried or suspended utility transmission lines, provided that: a. Suspended utility transmission lines are designed so the lowest point of the suspended line is at least six feet higher than the base flood elevation; b. Towers and other appurtenant structures are designed and placed to withstand and minimally obstruct flood flows; and c. Utility transmission lines carrying toxic or flammable materials are buried to a depth of at least twice the calculated maximum depth of scour for a 100- year flood. The maximum depth of scour shall be determined by hydraulic engineering methods acceptable to the city floodplain administrator; 5. Storage of materials and equipment, provided that: a. The material or equipment is not subject to major damage by flooding and is properly anchored to prevent floatation or downstream movement; or b. The material or equipment is readily movable within the limited time available after flood warning. Storage of flammable, toxic, hazardous or explosive materials shall not be permitted; PROOFS Page 731 of 977 6. Domestic water supply wells, provided that: a. They are driven or drilled wells located on ground higher than the surrounding ground to ensure positive drainage from the well; b. Well casings are watertight to a distance of at least 25 feet below the ground surface; c. Water supply and electrical lines have a watertight seal where the lines enter the casing; d. All pumps, electrical lines and equipment are either submersible or adequately floodproofed; and e. Check valves are installed on main water lines at wells and at all building entry locations; 7. Substantial improvements to any structure provided that the provisions of subsections C, D or E of section 18.58.260, BMC38.31.260 are met. In the floodway, the structure must be floodproofed or elevated on a permanent foundation rather than on fill; and 8. All other artificial obstructions, substantial improvements or nonconforming uses not specifically listed or prohibited by these regulations. (Ord. No. 1645, § 18.58.210, 8-15-2005; Ord. No. 1693, § 20(18.58.210), 2-20-2007) Sec. 38.31.220. Same Floodway--Permits for flood control works. A. It is desired that flood control be primarily accomplished by on-site stormwater management, protection of bank stabilizing vegetation, preserving an unobstructed floodplain and keeping development away from areas prone to flooding. In the event that adequate flood control can not be achieved by these methods, flood control works shall be allowed within floodways subject to the issuance of a permit by the city floodplain administrator with the following conditions: 1. Levees and floodwalls are permitted if: a. The proposed levee or floodwall is designed and construed to safely convey a 100-year flood; and b. The cumulative effect of the levee or floodwall combined with allowable floodway fringe encroachments does not increase the unobstructed base flood elevation more than one-half foot. The city floodplain administrator may establish either a lower or higher permissible increase in the base flood elevation for individual levee projects only with concurrence from the Montanastate department of natural resources and conservation and the Federal Emergency Management Agency based upon consideration of the following criteria: (1) The estimated cumulative effect of any anticipated future permissible uses; and (2) The type and amount of existing floodprone development in the affected area; c. The proposed levee or floodwall, except those to protect agricultural land, is constructed at least three feet higher than the base flood elevation; 2. Bank stabilization methods provided that: a. When selecting a bank stabilization method, best management practices PROOFS Page 732 of 977 consistent with the intent of this chaptertitle shall be used; b. The bank stabilization method is designed to withstand a 100-year flood; c. The bank stabilization method does not increase the base flood elevation; and d. The bank stabilization method will not increase erosion upstream, downstream or adjacent to the stabilization site; 3. Channelization projects if they do not significantly increase the magnitude, velocity or base flood elevation in the proximity of the project; 4. Dams provided that: a. They are designed and constructed in accordance with the Montana Dam Safety Act and applicable safety standards; and b. They will not increase flood hazards downstream, either through operational procedures or improper hydraulic design. (Ord. No. 1645, § 18.58.220, 8-15-2005; Ord. No. 1693, § 20(18.58.220), 2-20-2007) Sec. 38.31.230. Same Floodway--Permits for water diversions. A. Permits for the establishment of a water diversion or change in place of diversion shall not be issued if, in the judgment of the city floodplain administrator: 1. The proposed diversion will significantly increase the upstream base flood elevation to the detriment of neighboring property; 2. The proposed diversion is not designed and constructed to minimize potential erosion from a 100-year flood; and 3. Any permanent diversion structure crossing the full width of the stream channel is not designed and constructed to safely withstand a 100-year flood. (Ord. No. 1645, § 18.58.230, 8-15-2005; Ord. No. 1693, § 20(18.58.230), 2-20-2007) Sec. 38.31.240. Same Floodway--Prohibited uses. A. The following artificial obstructions and nonconforming uses are prohibited within the floodway: 1. New construction of any residential, commercial or industrial structure including manufactured homes; 2. Encroachments including fill, new construction, alterations, substantial improvements and other development within the adopted regulatory floodway that would result in erosion of the embankment, obstruction of the natural flow of waters or increase in flood levels within the community during the occurrence of the 100- year flood; 3. The construction or permanent storage of an object subject to floatation or movement during flooding; 4. Solid and hazardous waste disposal, sewage treatment and sewage disposal systems; 5. Storage of toxic, flammable, hazardous or explosive materials; and 6. Alterations of structures unless it can be shown the alteration will not raise flood heights. (Ord. No. 1645, § 18.58.240, 8-15-2005; Ord. No. 1693, § 20(18.58.240), 2-20-2007) PROOFS Page 733 of 977 Sec. 38.31.250. Floodway fringe--Uses allowed without permits. All uses allowed in the floodway, according to the provisions of section 18.58.210, BMC38.31.210 of these regulations, shall also be allowed without a permit in the floodway fringe. (Ord. No. 1645, § 18.58.250, 8-15-2005; Ord. No. 1693, § 20(18.58.250), 2-20-2007) Sec. 38.31.260. Same Floodway Fringe--Uses requiring permits. A. When a site specific exemption or relaxation of the standards of section 18.42.100, BMC38.23.100 allows utilization of a portion of the floodplain, the uses allowed in the floodway subject to the issuance of a permit, according to the provisions of sections 18.58.22038.31.220 through § 18.58.240, BMC38.31.240, shall also be allowed by permit within the floodway fringe. In addition, new construction, substantial improvements and alterations to structures are allowed by permit. This includes but is not limited to residential, commercial and industrial construction and suitable fill to be allowed by permit from the city floodplain administrator, subject to the following conditions: 1. Such structures or fill must not be prohibited by any other statute, regulation, ordinance or resolution; 2. Such structures or fill must be compatible with local growth policies; 3. The new construction, alterations and substantial improvements of residential structures including manufactured homes must be constructed on suitable fill such so that the lowest floor elevation (including basement) is two feet or more above the base flood elevation. The Any approved suitable fill shall be at an elevation no lower than the base flood elevation and shall extend for at least 15 feet, at that elevation, beyond the structure in all directions; 4. The new construction, alteration and substantial improvement of commercial and industrial structures can be constructed on suitable fill as specified in subsection C of this section. If not constructed on fill, commercial and industrial structures must be adequately floodproofed to an elevation no lower than two feet above the base flood elevation. Floodproofing must be certified by a registered professional engineer or architect that the floodproofing methods are adequate to withstand the flood depths, hydrodynamic and hydrostatic pressures, velocities, impact, buoyancy and uplift forces associated with the 100-year flood; a. If the structure is designed to allow internal flooding of areas below the lowest floor, use of this space shall be limited to parking, loading areas, building access and storage of equipment or materials not appreciably affected by floodwaters. The floors and wall shall be designed and constructed of materials resistant to flooding to an elevation no lower than two feet above the base flood elevation. Walls shall be designed to automatically equalize hydrostatic forces by allowing for entry and exit of floodwaters. Openings may be equipped with screens, louvers, valves, other coverings or devices which permit the automatic entry and exit of floodwaters; b. Structures whose lowest floors are used for a purpose other than parking, loading or storage of materials resistant to flooding shall be floodproofed to an elevation no lower than two feet above the base flood elevation. Floodproofing shall include impermeable membranes or materials for floors and walls and watertight enclosures for all windows, doors and other openings. These structures shall also be designed to withstand the hydrostatic, hydrodynamic and buoyancy effects of a 100-year flood; and c. Floodproofing of electrical, heating and plumbing systems shall be PROOFS Page 734 of 977 accomplished in accordance with § 18.58.350sections 38.31.350 through § 18.58.390, BMC38.31.390; 5. All manufactured homes placed in the floodway fringe must have the chassis securely anchored to a foundation system that will resist floatation, collapse or lateral movement. Methods of anchoring may include, but are not limited to, over- the-top or frame ties to ground anchors. The following conditions also apply: a. When a manufactured home is altered, replaced because of substantial damage as a result of a flood, or replaced on an individual site, the lowest floor must be elevated two feet above the base flood elevation. The home can be elevated on fill or raised on a permanent foundation of reinforced concrete, reinforced mortared block, reinforced piers or other foundation elements of at least equivalent strength; and b. Replacement or substantial improvement of manufactured homes in an existing manufactured home community or subdivision must be raised on a permanent foundation. The lowest floor must be at least 36 inches above the ground or raised two feet above the base flood elevation, whichever is less. The foundation must consist of reinforced concrete, reinforced mortared block, reinforced piers or other foundation elements of at least equivalent strength; c. Manufactured homes proposed for use as commercial or industrial structures must be elevated and anchored, rather than floodproofed; 6. Fill material placed in the floodway fringe must be stable, compacted, well graded, pervious, generally unaffected by water and frost, devoid of trash or similar foreign matter, devoid of tree stumps or other organic material, and appropriate for the purpose of supporting the intended use and/or permanent structure; 7. Roads, streets, highways and rail lines shall be designed to minimize increase in flood heights. Where failure or interruption of transportation facilities would result in danger to the public health or safety, the facility shall be located two feet above the base flood elevation; and 8. Agricultural structures that have a low damage potential, such as sheds, barns, shelters, and hay or grain storage structures must be adequately anchored to prevent floatation or collapse and all electrical facilities shall be placed above the base flood elevation; a. Recreational vehicles, if they are on the site for more than 180 consecutive days or are not ready for highway use, must meet the elevating requirements of subsection C of this section. (Ord. No. 1645, § 18.58.260, 8-15-2005; Ord. No. 1693, § 20(18.58.260), 2-20-2007; Ord. No. 1769, § 12, 12- 28-2009) Sec. 38.31.270. Same Floodplain--Prohibited uses. A. The following artificial obstructions and nonconforming uses are prohibited within the floodway fringe: 1. Solid and hazardous waste disposal; and 2. Storage of highly toxic, flammable, hazardous or explosive materials. Storage of petroleum products may be allowed by permit if stored on compacted fill at least two feet above the base flood elevation and anchored to a permanent foundation to prevent downstream movement. PROOFS Page 735 of 977 (Ord. No. 1645, § 18.58.270, 8-15-2005; Ord. No. 1693, § 20(18.58.270), 2-20-2007) Sec. 38.31.280. Floodplain areas with flood elevations and no delineated floodway. A. A development proposed for a 100-year floodplain, where water surface elevations are available but no floodway is delineated, may not significantly increase flood velocities or depths or generally alter patterns of flood flow. The provisions of sections 18.58.25038.31.250 through 18.58.270, BMC38.31.270 shall apply to these areas. The city floodplain administrator may require a permit applicant to furnish additional hydraulic data before acting on a permit application for such a floodplain. The data may include, but are not limited to, any of the following: 1. A hydraulic study documenting probable effect on upstream, downstream or adjacent property owners caused by the proposed development; or 2. The calculated increase in the 100-year floodwater surface profile caused by the proposed development. B. Permits for such proposed development may be modified or denied if the additional information shows that the proposed use would cause an additional flood hazard to adjacent property or significantly increase flood heights. A significant increase in flood height is one-half foot unless existing or anticipated development in the area dictates a lesser amount of allowable increase. (Ord. No. 1645, § 18.58.280, 8-15-2005; Ord. No. 1693, § 20(18.58.280), 2-20-2007) Sec. 38.31.290. Shallow flooding (AO zones). A. Shallow flooding areas are delineated as AO zone floodplains on the flood insurance rate maps. The provisions of section 18.58.260, BMC38.31.260 shall apply to any AO zone floodplains. The depth of the 100-year flood is indicated as the depth number on the flood insurance rate maps. The 100-year flood depth shall be referenced to the highest adjacent grade or stream flow line in determining which fill or floodproofing heights to use in applying the provisions of subsections C and D of section 18.58.260, BMC38.31.260. In the absence of depth or elevation information, a minimum two-foot flood depth shall be used. B. Floodplain boundary interpretation. The city floodplain administrator shall make interpretations where needed as to the exact location of an AO zone floodplain boundary when there is a conflict between a mapped boundary and actual field conditions. (Ord. No. 1645, § 18.58.290, 8-15-2005; Ord. No. 1693, § 20(18.58.290), 2-20-2007) Sec. 38.31.300. Applicability to unnumbered a zones. The minimum floodplain development standards listed in this section apply to the 100-year floodplains delineated by approximate methods and identified as unnumbered A zones on the flood insurance rate maps. (Ord. No. 1645, § 18.58.300, 8-15-2005; Ord. No. 1693, § 20(18.58.300), 2-20-2007) Sec. 38.31.310. A zones--Uses allowed without permits. All uses allowed in a floodway, according to the provisions of section 18.58.210, BMC38.31.210, shall also be allowed without a permit in unnumbered A zone floodplains. (Ord. No. 1645, § 18.58.310, 8-15-2005; Ord. No. 1693, § 20(18.58.310), 2-20-2007) Sec. 38.31.320. Same--Uses requiring permits. A. All uses allowed in the floodway and floodway fringe subject to the issuance of a permit according to the provisions of section 18.58.260, BMC38.31.260, shall require permits from the city floodplain administrator for unnumbered A zone floodplains. Also, the provisions of section 18.58.260, BMC38.31.260 apply to the A zone floodplains with no floodway delineated or water PROOFS Page 736 of 977 surface profile computed. Since there are no 100-year floodwater surface profiles computed for A zone floodplains, the following conditions also apply: 1. Elevation data on the 100-year flood shall be provided for subdivision proposals according to the definitions and rules of the Montana Sanitation in Subdivisions Act, title 76, chapter 4, part 1, Montana Code Annotated (MCA 76-4-101 et seq.) and the rules adopted by Department of Environmental Quality under this Act. These data shall be used in applying subsections C, D and E of section 18.58.270, BMC38.31.270. Subdivision proposals shall also provide for adequate drainage to minimize potential flood hazards; 2. The city floodplain administrator may obtain, review and reasonably use any base flood elevation and floodway data available from federal, state or other sources, until such data have been provided by FEMA, to enforce subsections C and D of section 18.58.270, BMC38.31.270; 3. The city floodplain administrator may use historical flood elevations to determine suitable fill or floodproofing elevations as required by subsections C and D of section 18.58.270, BMC38.31.270; 4. If historical flood evidence is not available, then the city floodplain administrator shall determine, from a field review at the proposed development site, an appropriate fill or floodproofing elevation to use in applying subsections C and D of section 18.58.270, BMC38.31.270. In the absence of depth or elevation information, a minimum two foot flood depth shall be used; and 5. Proposed structures must be anchored to prevent floatation or collapse and must be located as far from stream channels as practicable. (Ord. No. 1645, § 18.58.320, 8-15-2005; Ord. No. 1693, § 20(18.58.320), 2-20-2007) Sec. 38.31.330. Same--Prohibited uses. Those uses prohibited in the floodway fringe, in accordance with § 18.58.270, BMCsection 38.31.270, shall also be prohibited within the A zone floodplain boundaries. (Ord. No. 1645, § 18.58.330, 8-15-2005; Ord. No. 1693, § 20(18.58.330), 2-20-2007) Sec. 38.31.340. Same--Floodplain boundary interpretation. The city floodplain administrator shall make interpretations where needed as to the exact location of the unnumbered A zone floodplain boundary when there is a conflict between a mapped boundary and actual field conditions. (Ord. No. 1645, § 18.58.340, 8-15-2005; Ord. No. 1693, § 20(18.58.340), 2-20-2007) Sec. 38.31.350. Floodproofing requirements--Certification. If the following floodproofing requirements are to be applied to a proposed structure, as stipulated by the city floodplain administrator in accordance with these regulations, the methods used must be certified as adequate by a registered professional engineer or architect. (Ord. No. 1645, § 18.58.350, 8-15-2005; Ord. No. 1693, § 20(18.58.350), 2-20-2007) Sec. 38.31.360. Same--Conformance. Permitted floodproof systems shall conform to the conditions listed in sections 18.58.37038.31.370 through § 18.58.390, BMC38.31.390 and the floodproofing standards listed in subsection D of section 18.58.260, BMC38.31.260 for commercial and industrial structures. (Ord. No. 1645, § 18.58.360, 8-15-2005; Ord. No. 1693, § 20(18.58.360), 2-20-2007) PROOFS Page 737 of 977 Sec. 38.31.370. Same--Electrical systems. A. All incoming power service equipment, including all metering equipment, control centers, transformers, distribution and lighting panels, and all other stationary equipment must be located at least two feet above the base flood elevation; B. Portable or movable electrical equipment may be placed below the base flood elevation, if the equipment can be disconnected by a single submersible plug-and-socket assembly; C. The main power service line shall have automatic or manually operated electrical disconnect equipment located at an accessible location outside the 100-year floodplain and above the base flood elevation; and D. All electrical wiring systems installed at or below the elevation of the 100-year flood shall be suitable for continuous submergence and may not contain fibrous components. (Ord. No. 1645, § 18.58.370, 8-15-2005; Ord. No. 1693, § 20(18.58.370), 2-20-2007) Sec. 38.31.380. Same--Heating systems. A. Float operated automatic control valves must be installed in gas furnace supply lines so that the fuel supply is automatically shut off when floodwaters reach the floor level where the furnace is located; B. Manually operated gate valves must be installed in gas supply lines. The gate valves must be operable from a location above the elevation of the 100-year flood; and C. Electric heating systems must be installed in accordance with the provisions of International Building Code and any other applicable regulations. (Ord. No. 1645, § 18.58.380, 8-15-2005; Ord. No. 1693, § 20(18.58.380), 2-20-2007) Sec. 38.31.390. Same--Plumbing systems. A. Sewer lines, except those to be buried and sealed in vaults, must have check valves installed to prevent sewage backup into permitted structures; and B. All toilet stools, sinks, urinals and drains must be located so the lowest point of possible water entry is at least two feet above the elevation of the 100-year flood. (Ord. No. 1645, § 18.58.390, 8-15-2005; Ord. No. 1693, § 20(18.58.390), 2-20-2007) Sec. 38.31.400. Violation--Notice. The city floodplain administrator shall bring any violation of this chapterarticle to the attention of the local governing body, its legal council and the Montanastate department of natural resources and conservation. (Ord. No. 1645, § 18.58.400, 8-15-2005; Ord. No. 1693, § 20(18.58.400), 2-20-2007) Sec. 38.31.410. Same--Penalty. Violation of the provisions of this chapterarticle or failure to comply with any of the requirements, including permit approval prior to development of floodprone lands, and conditions and safeguards established shall be subject to the provisions of chapter18.64, BMCarticle 34 of this chapter. (Ord. No. 1645, § 18.58.410, 8-15-2005; Ord. No. 1693, § 20(18.58.410), 2-20-2007) PROOFS Page 738 of 977 CHAPTER 18.60. NONCONFORMING SITUATIONS ARTICLE 32. NONCONFORMING SITUATIONS Sec. 38.32.010. Nonconforming uses. A. Any use lawfully existing upon the effective date of the ordinance codified infrom which this chaptertitle or any predecessor title or code is derived may be continued at the size and in the manner of operation existing upon such date except as hereinafter specified, or in the case of signage as specified in chapter 18.52, BMCarticle 28 of this chapter. B. Except as otherwise specified in this chapterarticle, the right to operate and maintain a nonconforming use shall terminate when the structure or structures housing such use are removed beyond 50 percent of the market value, razed or suffer substantial damage as defined in chapter18.80, BMCarticle 42 of this chapter. However, in the event of damage by fire, wind, earthquake or other natural disaster to the extent described herein, said nonconforming use or uses may be reestablished through a conditional use permit procedure as set forth in chapterarticle 18.34, BMC19 of this chapter. Such restoration shall comply to the maximum extent reasonably feasible with the requirements of this chaptertitle. C. When any lawful nonconforming use of any structure or land in any district has been changed to a conforming use, it shall not thereafter be changed to any nonconforming use. D. Whenever a lawful nonconforming use of a building, structure or land is discontinued for a period of 90 days, any future use of the building, structure or land shall be in conformity with the provisions of this chaptertitle. E. Normal maintenance of a building or other structure containing or related to a lawful nonconforming use is permitted, including necessary structural repairs, provided such structural repairs do not enlarge, intensify or otherwise redefine the nonconforming use. (Ord. No. 1645, § 18.60.010, 8-15-2005; Ord. No. 1693, § 21(18.60.010), 2-20-2007) Sec. 38.32.020. Changes to or expansions of nonconforming uses. A. Lawful nonconforming nonresidential use. 1. A lawful nonconforming nonresidential use shall not be changed except in conformance with the use requirements of the zone in which it is located. Except, however, a lawful nonconforming nonresidential use may be changed to another nonconforming use, provided that the proposed use is not of greater intensity than the original use, as determined by the criteria in 18.60.020section 38.32.020.A.2, and that a conditional use permit is obtained from the city commission. A lawful nonconforming nonresidential use may be expanded only through the granting of a conditional use permit by the city commission. In considering the appropriateness of the conditional use permit application, the city commission shall weigh the criteria set forth in subsection B of this section. In addition, the commission shall consider whether the expansion is reasonable, natural and incidental to the growth and use of an existing business. In general, proposals to expand nonconforming uses shall not be approved if the expansion would encompass new land or property which was not in use at the time of the enactment of zoning or a change in zoning. 2. To approve a conditional use permit to change or expand a nonconforming nonresidential use, the city commission shall determine that the proposed nonconforming use is more appropriate to the district than the existing nonconforming use, and that no unsafe or unhealthy conditions are perpetuated. In making such a determination, the commission shall weigh the following criteria in addition to the criteria applicable to all conditional use permits: PROOFS Page 739 of 977 a. Traffic impacts, both on-site and offsite; b. Off-street parking and loading requirements; c. The visual impact on the surrounding area; d. The degree of compliance with the adopted growth policy and this chaptertitle; e. The level of conflict with other uses in the surrounding area; f. The presence of other nonconformities in the surrounding area; g. The degree to which any existing unsafe or hazardous conditions would be mitigated; h. The viability of the subject structure; and i. On-site and off-site impacts from noise, dust, smoke, surface or groundwater contamination, or other environmental impacts. B. Lawful nonconforming residential use. 1. A lawful nonconforming residential use may be reduced in terms of the number of dwelling units, in an effort to achieve greater conformance with the underlying zoning designation, through the review process required by chapterarticles 18.2816, 18.3017, and 18.34, BMC19 of this chapter, without the need to obtain a conditional use permit from the city commission. A lawful nonconforming residential use shall not be permitted to increase the number of dwelling units. 2. The maintenance and reconstruction of existing nonconforming residential dwelling units is allowed, in compliance with applicable fire and building codes, including expansion of up to 20 percent of the existing total residential area, without the need of a conditional use permit from the city commission, as long as the number of dwelling units on the lot is not increased. In instances where new construction is allowed, all appropriate approvals such as a certificate of appropriateness or building permit shall be obtained prior to the initiation of construction. (Ord. No. 1645, § 18.60.020, 8-15-2005; Ord. No. 1693, § 21(18.60.020), 2-20-2007) Sec. 38.32.030. Nonconforming area and bulk requirements for existing lots. A. At the time of the enactment of the ordinance codified infrom which this chaptertitle is derived if any owner of a plot of land consisting of one or more adjacent lots, as defined in chapter18.80article 42 of this chapter, in a subdivision of record does not own sufficient land within the lot of record to enable him/her the owner to conform to the minimum lot size requirements, or does not have sufficient lot width to conform to the minimum lot width requirements, such plot of land may nevertheless be used as a building site. The lot dimension requirements of the district in which the piece of land is located may be reduced by the smallest amount that will permit a structure of acceptable size to be built upon the lot, with such reduction to be determined by the city commission. Existing buildings on nonconforming lots may be expanded without deviations or variances so long as the expansion does not increase or create one or more nonconformities. 1. In the R-S, R-1 and R-2 districts, the reduction shall permit only a single-household residence. 2. In the R-3, R-4 and R-O districts, the reduction shall permit only a duplex. B. No lot, even though it may consist of one or more adjacent lots in common ownership at the time of passage of the ordinance codified infrom which this chaptertitle is derived, shall be PROOFS Page 740 of 977 reduced in size so that lot width or size of yards or lot area per household or any other requirement of this chaptertitle is not maintained except as provided for in this chaptertitle. This section views lots as merged for the purposes of planning and zoning regulation of bulk, size, or similar dimensional standards only, and does not aggregate individual parcels of land in a manner affected by MCA 76-3-103(17)(b). This section shall not apply when a portion of a lot is acquired for a public purpose. C. Adjacent parcels which do not conform to minimum lot requirements, and which are in common ownership, shall be considered individual lots of record for the purposes of this code only if they are each greater than one acre in size and were created prior to the passage of the ordinance codified in this chaptertitle. (Ord. No. 1645, § 18.60.030, 8-15-2005; Ord. No. 1693, § 21(18.60.030), 2-20-2007) Sec. 38.32.040. Nonconforming structures. A. Any nonconforming structure lawfully existing upon the effective date of the ordinance codified infrom which this chaptertitle is derived may be continued at the size and configuration existing upon such date except as hereinafter specified, or in the case of signage as specified in chapter 18.52, BMCarticle 28 of this chapter and lighting as specified in section 18.42.15038.23.150.O, BMC. B. The right to operate and maintain a nonconforming structure shall terminate when the structure is removed beyond 50 percent of the market value, razed or substantially damaged. However, in the event of damage by fire, wind, earthquake or other natural disaster to the extent described herein, said nonconforming nonresidential structure may be reestablished through a conditional use permit procedure as set forth in chapterarticle 18.34, BMC19 of this chapter. Such restoration shall comply to the maximum extent feasible with the requirements of this chaptertitle. C. Normal maintenance of a lawful nonconforming structure is permitted, including necessary structural repairs provided such structural repairs do not enlarge the structure or intensify the use. (Ord. No. 1645, § 18.60.040, 8-15-2005; Ord. No. 1693, § 21(18.60.040), 2-20-2007) Sec. 38.32.050. Changes to or expansions of nonconforming structures. A. A lawful nonconforming structure shall not be changed except in conformance with the requirements of the zone in which it is located or as provided in this chapterarticle. B. A lawful nonconforming structure may be expanded through the plan review process required by chapterarticles 18.2816, 18.3017 and 18.34, BMC19 of this chapter. Unless the proposed expansion would create a new nonconformity or increase an existing nonconformity, no deviation or variance is required for the expansion. C. If a lawful nonconforming structure is proposed to be changed or expanded in a manner which would increase the degree of nonconformity, or would create a new nonconformity, a deviation or variance shall be properly granted prior to or in conjunction with the site development approval required in chapterarticles 18.2816, 18.3017, and 18.34, BMC19 of this chapter. D. The maintenance and reconstruction of existing nonconforming residential structures is allowed, in compliance with applicable fire and building codes, as well as, the provisions of this chapterarticle, so long as the number of dwelling units on the lot is not increased. Maintenance activities may not increase the degree of nonconformity. (Ord. No. 1645, § 18.60.050, 8-15-2005; Ord. No. 1693, § 21(18.60.050), 2-20-2007) PROOFS Page 741 of 977 CHAPTER 18.62. DEVELOPMENT REVIEW COMMITTEE (DRC), DESIGN REVIEW BOARD (DRB), ADMINISTRATIVE DESIGN REVIEW STAFF (ADR), WETLANDS REVIEW BOARD (WRB), BOARD OF ADJUSTMENT (BOA) ARTICLE 33. DEVELOPMENT REVIEW COMMITTEE (DRC), DESIGN REVIEW BOARD (DRB), ADMINISTRATIVE DESIGN REVIEW STAFF (ADR), WETLANDS REVIEW BOARD (WRB), BOARD OF ADJUSTMENT (BOA) Sec. 38.33.010. Purpose of DRC, DRB, ADR, WRB, and BOA. A. Purpose. The development review committee (DRC), design review board (DRB), administrative design review staff (ADR) and wetlands review board (WRB) are established to coordinate, expedite and ensure fair and equitable implementation of this chaptertitle. The objective, to be implemented through their procedures and deliberations, shall be to encourage development quality that will enhance both the natural and built environments, with consideration to present and future property values, and to carry out the purposes of this chaptertitle. All bodies authorized under this chapterarticle may call upon any city staff or other persons with technical expertise, and may testify before any board, commission or other body upon the subjects for which they have responsibility. 1. DRC. The DRC is established to evaluate all proposals subject to the provisions of this chaptertitle. The DRC is the body charged with reviewing items relating to public health and safety. a. The DRC shall act as an advisory body to the planning director for site plans when no variance or deviation is requested; and b. The DRC shall act as an advisory body to the city commission or board of adjustment for larger and more complex proposals including conditional use permits, planned unit developments, all site plans involving variances or deviations, divisions of land, zone map amendments, annexations and other actions as requested by staff or the city commission. 2. DRB. The DRB is established to evaluate aesthetic considerations of larger and more complex proposals which are likely to produce significant community impact and to provide recommendations regarding such proposals to the planning director or city commission, subject to the provisions of this chaptertitle. a. The DRB shall act as an advisory body to the planning director for site plans within overlay districts meeting one or more of the thresholds of section 18.34.04038.19.040.C, BMC when no variance or deviation is requested; and b. The DRB shall act as an advisory body to the city commission or board of adjustment regarding: (1) Site plans within overlay districts meeting one or more of the thresholds of section 18.34.04038.19.040.C, BMC when variances or deviations are requested; (2) Conditional use permits located within overlay districts, but excluding conditional use permits for the purpose of accessory dwelling units and conditional use permits which do not create additional building area; (3) Planned unit developments; (4) Appeals from ADR decisions; and (5) Review of applications for large scale retail; PROOFS Page 742 of 977 c. The DRB may develop, and after adoption by the city commission, apply specific guidelines related to such concerns as architectural appearance, landscape design and signage for the construction and/or alteration of structures, sites or areas; d. The DRB may review applicable development proposal applications for zoning text amendments, or applications for moving, demolition or any other kind of permit that may affect properties located within entryway corridors; e. The DRB has responsibility for projects subject to §18.34.040section 38.19.040.C, BMC. 3. ADR. The ADR staff is established as the review body for aesthetic considerations of smaller and less complex proposals which are less likely to produce significant community impact and to provide recommendations regarding such proposals to the planning director and city commission, subject to the provisions of this chaptertitle. a. The ADR staff shall act as the approval authority for sketch plans within overlay districts when no variance or deviation is requested; b. The ADR staff shall act as an advisory body to the planning director for site plans within overlay districts not meeting one or more of the thresholds of section 18.34.04038.19.040.C when no variance or deviation is requested; c. The ADR staff shall act as an advisory body to the planning director regarding reuse/further development permits within overlay districts; and d. The ADR staff shall act as an advisory body to the city commission or board of adjustment regarding all sketch plans and site plans not meeting one or more of the thresholds §18.34.040section 38.19.040.B within overlay districts when variances or deviations are requested, for conditional use permits for accessory dwelling units, conditional use permits where no additional building area will be created, and nonPUD divisions of land; e. The ADR may develop, and after adoption by the city commission, apply specific guidelines related to such concerns as architectural appearance, landscape design and signage for the construction and/or alteration of structures, sites or areas; and f. The ADR may review applicable development proposal applications for zoning amendments, or applications for moving, demolition or any other kind of permit that may affect properties located within entryway corridors. 4. WRB. The WRB is established to review wetland related submittal materials, prepare functional assessments of regulated wetlands that may be impacted by proposed regulated activities, evaluate the impacts proposed regulated activities may have on delineated wetlands and to provide wetlands protection, mitigation and/or enhancement recommendations regarding such proposals to the planning director, board of adjustment, and city commission, subject to the provisions of this chaptertitle. a. The WRB shall act as an advisory body to the planning director for sketch plans and site plans when no variance or deviation is requested. b. The WRB shall act as an advisory body to the city commission, or board of adjustment if applicable, for larger and more complex proposals including conditional use permits, planned unit developments, subdivisions, all site plans involving variances or deviations, divisions of land, zone map PROOFS Page 743 of 977 amendments, and other actions as requested by staff or the commission. 5. BOA. The BOA is established to consider zoning variances, deviations, site plans which include variance or deviations, and conditional use permits, subject to the provisions of this chaptertitle. Variances and deviations are subject to Chapter18.66article 35 of this chapter and conditional use permits are subject to Chapterarticle 18.3419 of this chapter, in addition to the other relevant aspects of this chaptertitle. B. Development review committee procedures established. To implement this purpose, certain procedures shall be adopted to include, but not be limited to, a regularly scheduled weekly or biweekly meeting attended by representatives of each of the city departments charged with development review. Each department shall have the ability and authority to require the DRC to make a recommendation of denial when in their view the project can not meet the requirements and review criteria of this chaptertitle and acceptable conditions do not exist to cure the identified failings of the project. Written meeting reviews, in the form of staff reports or summary reviews prepared by the planning department, shall be made setting forth the DRC's recommendation to the planning director, board of adjustment, or city commission and reasons for requiring such conditions as may be deemed necessary by the DRC. These records shall be preserved as part of the official file for each development proposal. Lastly, the DRC shall generally follow "Robert's Rules of Order" and may prepare and adopt supplemental procedural rules that will ensure the accomplishment of the stated purpose and promote the efficiency and effectiveness of the developmental review process. 1. The DRC shall at a minimum be composed of the following personnel: city engineer or designee, fire marshal or designee, the streets superintendent or designee, the sanitation superintendent or designee, the water/sewer superintendent or designee, the planning director or designee and the building official or designee. When necessary, other members of the committee may include: the director of public safety or designee, the superintendent of facilities and public lands or designee, the superintendent of recreation or designee, the city manager or designee, with other individuals to be included as necessary at the planning director's request. 2. When applicable, the DRC may solicit the input of noncity agencies and persons including, but not limited to, the county subdivision review officer or designee, the county sanitarian or designee, the county road superintendent or designee, and state or federal agencies, with other individuals to be included as necessary. C. Design review board procedures established. To implement this purpose, certain procedures shall be adopted to include, but not be limited to, a regularly scheduled weekly or biweekly meeting attended by members of the DRB. Written meeting reviews setting forth decisions and findings shall be made. These records shall be preserved as part of the official proceedings for each developmental proposal. Lastly, the DRB shall generally follow "Robert's Rules of Order" and may prepare and adopt supplemental procedural rules, upon the approval of the city commission, that will ensure the accomplishment of the stated purpose and promote the efficiency and effectiveness of the design review process. 1. The DRB shall consist of six professional and two nonprofessional members. Professional members shall be degreed in their respective disciplines and/or otherwise licensed or certified by their respective professional authorities. An appointment to a term of service on the DRB is for two years. The professional contingent shall consist of three architects and at least one architectural historian, and at least one landscape architect or landscape designer. At least one of the professional members shall have demonstrated expertise in urban design. Nonprofessional members shall be individuals with an interest in, or knowledge of, PROOFS Page 744 of 977 urban design or historic preservation. No member of the DRB shall serve concurrently as a member of the planning board or zoning commission. A quorum of the DRB shall be four voting members and one of the members constituting the quorum must be an architect. In the event a quorum of the DRB may not otherwise be attained, the ADR staff may serve as alternates to prevent delay in project reviews. 2. In selecting the members, the city commission shall give preference to residents of the city. However, where a qualified professional resident is not available to serve, the city commission may appoint a professional member who practices professionally, owns property or owns a business within the city. Where a nonprofessional resident is not available to serve, the city commission may appoint a nonprofessional member who works, owns property or owns a business within the city. D. Administrative design review staff procedures established. To implement the purposes of this chaptertitle, procedures shall be adopted for the administrative evaluation of a proposal without public notice or comment, unless a deviation from the underlying zoning is requested. After a proposal has been evaluated by the ADR staff, they shall issue a written decision that shall include findings and may include a notice of required corrections. The ADR staff may call a conference with the applicant to determine design alternatives, or the applicant may call a conference with the ADR staff for the same purpose. Any such conference shall be conducted prior to the issuance of a building permit for the proposal. 1. ADR staff shall consist of two planning department staff members. One member shall be degreed or otherwise licensed or certified by his/her such member's respective professional authorities in an environmental design discipline such as architecture, landscape architecture or urban design. The second member shall be the planning director or his/her designee who may or may not be degreed in architecture. In the event that necessary ADR staff is not available, the DRB may act to provide design review services. E. Waiver of design review. In the event that neither the DRB nor the ADR staff as established in this chapterarticle are able to complete a quorum or have the necessary personnel to conduct the reviews otherwise required by this chaptertitle, the requirement for review by DRB or ADR is waived. Nothing in this section shall constitute a waiver of the required review criteria established in chapterarticles 18.2816, 18.3017, 18.3620, and 18.56, BMC30 of this chapter. F. Wetlands review board procedures established. The WRB will be convened as necessary to review proposals that involve regulated activities and may impact regulated wetlands based on the provisions contained in chapter18.56, BMCarticle 30 of this chapter. To implement this purpose, certain procedures shall be adopted to include, but not be limited to, scheduling meetings as needed to be attended by members of the WRB. Written meeting reviews setting forth decisions and findings shall be made. These records shall be preserved as part of the official proceedings for each development proposal. Lastly, the WRB shall generally follow "Robert's Rules of Order" and may prepare and adopt supplemental procedural rules, upon the approval of the city commission, that will ensure the accomplishment of the stated purpose and promote the efficiency and effectiveness of the wetland review process. 1. The WRB shall consist of six members. An appointment to a term of service on the WRB is for two years. Members shall be degreed in their respective disciplines and/or otherwise licensed or certified by their respective professional authorities. Members shall have experience in at least one of the following wetland and/or stream specializations: ecology, soils, botany, and/or hydrology. PROOFS Page 745 of 977 2. In selecting the members, the city commission shall give preference to residents of the city. However, where a qualified resident is not available to serve, the city commission may appoint a member who practices professionally, owns property or owns a business within the city. G. Board of adjustment procedures established. The BOA will be convened as necessary to review applications for variances or deviations or site plan applications involving variances or deviations. The BOA will also review applications for conditional use permits. To implement this purpose, certain procedures shall be adopted which may include, without limitation, a regularly scheduled weekly or biweekly meeting attended by members of the BOA. A record of the reviews and decisions shall be made. These records shall be preserved as part of the official proceedings for each development proposal. Lastly, the BOA shall generally follow "Robert's Rules of Order" and may prepare and adopt supplemental procedural rules, upon the approval of the city commission, that will ensure the accomplishment of the stated purpose and promote the efficiency and effectiveness of the review process. 1. The BOA shall consist of seven members. The term of appointment is for three years, with staggered terms. Members shall be appointed by the city commission. A member may be removed per MCA 76-2-322. The concurring vote of four members of the board is required to take official action. 2. In selecting the members, the city commission shall give preference to residents of the city. However, where a qualified resident is not available to serve, the city commission may appoint up to one nonresident member who practices professionally, owns property or owns a business within the city. a. Preference should be given to applicants who have prior experience with local government, who will uphold the intent and purpose of the city's land use regulations, and who will honor the purpose of a board of adjustment. (Ord. No. 1645, § 18.62.010, 8-15-2005; Ord. No. 1670, § 18.62.010, 8-28-2006; Ord. No. 1693, § 22(18.62.010), 2-20-2007; Ord. No. 1761, exh. L(18.62.010), 7-6-2009; Ord. No. 1769, exh. K(18.62.010), 12- 28-2009) Sec. 38.33.020. General procedures, notice and timing. A. Informal advice and direction. A person or organization considering any construction, building or site alteration, rezoning or other development activity, may approach the DRC, DRB, ADR or WRB for informal advice and direction. Such discussion shall be treated as advisory by both parties and shall record only the fact that contact had been made. An informal review by the DRC and/or DRB may be requested by submitting a completed application form provided by the planning director along with any schematic development plans or written narrative at least one week prior to the next regularly DRC and/or DRB meeting. An informal review by the WRB may be requested by submitting a completed application form provided by the planning director along with a wetland delineation for the regulated wetland, development plans or written narrative describing the proposed regulated activity and a WRB meeting will be convened within two weeks of application submittal. A fee, set in accordance with the fee resolution adopted by the city commission, shall be charged for an informal review. No application is required for informal review or advice by the ADR staff. B. Formal application. An application for DRC, DRB, ADR and/or WRB consideration of a development proposal must be submitted utilizing a form available from the planning director. Material to be submitted with the application shall include the elements set forth within the requirements for the type of proposal to be considered, i.e., sketch plan, site plan, conditional use permit, certificate of appropriateness, planned unit development, divisions of land, etc., as outlined in this chaptertitle. It is recommended that the applicant discuss the application informally with PROOFS Page 746 of 977 the DRC, DRB, ADR or WRB prior to formal submission to help expedite the process. Depending upon the size of the proposed project, its location and type, the applicant may be directed to one or more agencies of the city for processing. C. Public notice. Public notice for any proposal before the DRC, DRB, ADR or WRB that requires such notice shall be provided in accordance with Chapter18.76, BMCarticle 40 of this chapter. D. DRC, DRB, ADR or WRB action. By no later than 30 working days from the date of the first regularly scheduled DRC and/or DRB meeting, or a meeting convened by the WRB, at which the applicants' proposal was initially reviewed, the DRC, DRB or WRB shall take action to recommend approval, approval with conditions, table pending submission of revised or additional materials or recommend denial of the applicant's proposal, unless the applicant grants a written extension to the review period. For proposals subject to ADR review, the ADR staff shall recommend approve, approve with conditions, delay pending submission of revised or additional materials or deny of the applicant's proposal. E. BOA action. After the applicants' proposal is found sufficient for review, the schedule for BOA action to approve, approve with conditions, table pending submission of revised or additional materials, or deny the applicant's proposal shall be established. (Ord. No. 1645, § 18.62.020, 8-15-2005; Ord. No. 1670, § 18.62.020; Ord. No. 1693, § 22(18.62.020), 2-20- 2007; Ord. No. 1761, exh. L(18.62.020), 7-6-2009; Ord. No. 1769, exh. K(18.62.020), 12-28-2009) Chapter 18.64. Administration, Fees and Penalties ARTICLE 34. ADMINISTRATION, FEES AND PENALTIES Sec. 38.34.010. Review authority. A. The city commission has the right to review and require revisions to all development proposals subject to this chaptertitle, and delegates that authority in certain circumstances as set forth belowin this section to the planning director and board of adjustment, reserving to itself the right to hear appeals from decisions of the planning director and informational hearings required by MCA 76-2-402. The purpose of this review is to prevent demonstrable adverse impacts of the development upon public safety, health or general welfare, or to provide for its mitigation; to protect public investments in roads, drainage facilities, sewage facilities, water facilities, and other facilities; to conserve the value of adjoining buildings and/or property; to protect the character of Bozemanthe city; to protect the right of use of property; advance the purposes and standards of this chaptertitle and the adopted growth policy; and to ensure that the applicable regulations of the city are upheld. B. The planning director shall, upon recommendation from the DRC, DRB, ADR or WRB as may be applicable approve, approve with conditions or deny all applications subject to this chaptertitle, except master site plans, conditional use permits, planned unit developments and subdivisions, or any application involving deviations or variances. Decisions of the planning director are subject to the appeal provisions of chapter18.66, BMCarticle 35 of this chapter. 1. Exception. The city commission may, by an affirmative, simple majority, vote of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the planning director. The vote shall occur prior to the action of the planning director. C. The board of adjustment shall, upon recommendation from the DRC, DRB, ADR or WRB as may be applicable approve, approve with conditions or deny applications for all variances and deviations, site/sketch plans with variances or deviations, or conditional use permits subject to this chaptertitle, except planned unit developments and subdivisions. Decisions of the BOA are PROOFS Page 747 of 977 subject to the appeal provisions of chapter 18.66, BMCarticle 35 of this chapter. 1. Exception. The city commission may, by an affirmative vote of three of its members at a regularly scheduled meeting reclaim to itself the final approval of a development normally subject to the approval of the board of adjustment. The vote shall occur prior to the action of the board of adjustment. D. As detailed in chapter18.62, BMCarticle 33 of this chapter, the city commission authorizes the development review committee, design review board, administrative design review staff, wetlands review board, and other advisory bodies as applicable, to review and to make recommendations to the planning director, BOA, or city commission regarding development proposals. E. The city commission or its designated representatives may require the applicant to design the proposed development to reasonably minimize potentially significant adverse impacts identified through the review required by these regulations. The city commission or its designated representatives may not unreasonably restrict a landowner’s ability to develop land, but it is recognized that in some instances the unmitigated impacts of a proposed development may be unacceptable and will preclude approval of the development as submitted. Recognizing that the standards of this chaptertitle are minimum requirements and the public health, safety, and general welfare may be best served by exceeding those minimums, the city commission or planning director may require as a condition of approval, additional landscaping, screening, timing requirements, setbacks or other mitigation exceeding the minimums of this chaptertitle. (Ord. No. 1645, § 18.64.010, 8-15-2005; Ord. No. 1670, § 18.64.010, 8-28-2006; Ord. No. 1693, § 23(18.64.010), 2-20-2007; Ord. No. 1761, exh. M(18.64.010), 7-6-2009) Sec. 38.34.020. Administration and enforcement; planning director authority. A. The planning director, or his/her designated representative, shall administer and enforce this chaptertitle. He/sheThe planning director may be provided with the assistance of such other persons as the planning director may supervise and those assistants shall have essentially the same responsibilities as directed by the planning director. B. The planning director may in the administration of this chaptertitle consult with other persons having expertise in relevant subject areas as in his/her the planning director's opinion is necessary for the review of the proposed development or administration of the title chapter. C. If the planning director shall find that any of the provisions of this chaptertitle are being violated, he/shethe planning director shall notify in writing the person responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it. He/SheThe planning director shall order discontinuance of illegal use of land, illegal additions, alterations or structural changes; discontinuance of any illegal work being done; or shall take any other action authorized by this chaptertitle to ensure compliance with or prevent violation of its provisions. (Ord. No. 1645, § 18.64.020, 8-15-2005; Ord. No. 1693, § 23(18.64.020), 2-20-2007; Ord. No. 1761, exh. M(18.64.020), 7-6-2009) Sec. 38.34.030. Stop-work order Enforcement; planning director. This chaptertitle shall be enforced by the planning director and his/her authorized representatives. No development approval, subdivision approval, building permit or business or occupational use license shall be issued, except in compliance with the provisions of this chaptertitle. (Ord. No. 1645, § 18.64.030, 8-15-2005; Ord. No. 1693, § 23(18.64.030), 2-20-2007; Ord. No. 1761, exh. M(18.64.030), 7-6-2009) PROOFS Page 748 of 977 Sec. 38.34.040. Stop-work order by planning director, building official, city engineer authority. Whenever any subdivision, development or building work is being done contrary to the provisions of this chaptertitle, the planning director shall order the work stopped by notice in writing served on any person engaged in doing or causing such work to be done, and any such person shall forthwith stop such work until authorized by the planning director to proceed with the work. The building official or city engineer may also issue a stop-work order when building work is being done contrary to the provisions of this chaptertitle. (Ord. No. 1645, § 18.64.040, 8-15-2005; Ord. No. 1693, § 23(18.64.040), 2-20-2007; Ord. No. 1761, exh. M(18.64.040), 7-6-2009) Sec. 38.34.050. Permission to enter. The city commission, or its designated agents, may conduct such investigations, examinations and site evaluations as they deem necessary to verify the information supplied. The submission of material or a plat for review shall constitute a grant of permission to enter the subject property. The grant of permission shall continue until all final actions required by the approval process have been completed. (Ord. No. 1645, § 18.64.050, 8-15-2005; Ord. No. 1693, § 23(18.64.050), 2-20-2007; Ord. No. 1761, exh. M(18.64.050), 7-6-2009) Sec. 38.34.060. Inaccurate or incomplete information and waivers. A. The city shall review each submitted application for completeness and sufficiency as described in sections 18.06.04038.03.040 and 18.34.070, BMC38.19.070. B. The final approval body may withdraw approval or conditional approval of a preliminary plat or other development approval if they determine that information provided by the applicant, and upon which approval or conditional approval of the preliminary plat or other development was based, is inaccurate or incomplete. 1. Within 30 calendar days following approval or conditional approval of a preliminary plat or other development application, any person or agency that claims that information provided by the applicant is inaccurate or incomplete may submit the information and proof to the planning department. 2. The planning department shall investigate the claim, the accompanying information and proof, and make a report to the final approval authority (city commission or the planning director) within 30 working days after receipt of the information. If the final approval authority is the city commission, the commission shall consider the information and proof, and shall make a determination regarding the claim at a regular meeting. Notice of the meeting or presentation of the report shall be given to the claimant and the applicant. (Ord. No. 1645, § 18.64.060, 8-15-2005; Ord. No. 1693, § 23(18.64.060), 2-20-2007; Ord. No. 1761, exh. M(18.64.060), 7-6-2009) Sec. 38.34.070. Coordinated reviews. When a proposed subdivision, development or use is also proposed to be annexed to the city, the city shall coordinate the development review and annexation procedures to minimize duplication of hearings, reports, and other requirements whenever possible. The city commission shall also hold joint public hearings on the initial zoning and the annexation whenever possible. Based upon the circumstances of proposed development the city may require sequential review of applications. (Ord. No. 1645, § 18.64.070, 8-15-2005; Ord. No. 1693, § 23(18.64.070), 2-20-2007; Ord. No. 1761, exh. M(18.64.070), 7-6-2009) PROOFS Page 749 of 977 Sec. 38.34.080. Date of submittal and associated review standards. A. Subdivision. Review and approval or disapproval of a subdivision under these regulations may occur only under those regulations in effect at the time a subdivision application for approval of a preliminary plat is deemed sufficient according to section 18.06.04038.03.040 BMC, or for an extension under Chapter18.06, BMCarticle 3 of this chapter is submitted to the city. B. Nonsubdivision. Review of nonsubdivision applications shall be under such regulations as are in effect at the time an application for approval of a preliminary site plan is deemed complete according to § 18.34.070, BMCsection 38.19.070; except that an interim zoning ordinance adopted according to 337MCA 76-23-306 shall apply to a nonsubdivision application without limitation to the date of completeness of the application until final action has been taken on the application. An applicant may waive, in writing, the shield from changing ordinances established by this section. In the event that such waiver is provided, the nonsubdivision application shall be reviewed under the ordinances in effect on the date of the final action on the application. (Ord. No. 1645, § 18.64.080, 8-15-2005; Ord. No. 1693, § 23(18.64.080), 2-20-2007; Ord. No. 1761, exh. M(18.64.080), 7-6-2009) Sec. 38.34.090. Planning director and building official; plan application checking; notice of noncompliance. A. It is the intent of this chaptertitle that the planning director and building official, or their designees, shall check all development plans and applications for permits for compliance with this chaptertitle both before and during construction. B. If, during this procedure, the planning director and/or the building official deems that the proposed plan or construction does not comply with this chaptertitle, hethe planning director and/or building official shall inform the applicant of the infraction and shall stop all construction on the project until such time as the applicant, builder or principal revises hissuch plan to conform to this chaptertitle and/or fulfills the requirements of any mandated review procedure as set forth in this chaptertitle. (Ord. No. 1645, § 18.64.090, 8-15-2005; Ord. No. 1693, § 23(18.64.090), 2-20-2007; Ord. No. 1761, exh. M(18.64.090), 7-6-2009) Sec. 38.34.100. Building permit requirements. A. No building or other structure shall be erected, moved, added to or structurally altered and no land use shall be changed without valid permits as prescribed in this chapterarticle. 1. Only minor site surface preparation and normal maintenance shall be allowed prior to conditional approval by the appropriate review authority and the issuance of a building permit, providing that such activity does not include excavation for foundations or the removal of mature, healthy vegetation. Minor site surface preparation means disturbing less than one-half acre, movement of 30 cubic yards or less of material, or a cut or fill of less than cumulative one foot whichever is less. Any excavation and site disturbance must be in conformance with an approved stormwater control plan. Upon conditional approval by the appropriate review authority, excavation for foundations and the preparation of forms may occur. However, no concrete shall be poured and no further construction shall commence 337 This should be MCA 76-2-306. Yes. PROOFS Page 750 of 977 until final site or sketch plan approval has been granted and until building permits have been issued. Proceeding prior to building permit issuance is at the hazard of the landowner. a. Exception: When construction and funding of public streets are occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, Planned Unit Development (PUD), the issuance of building permits may be allowed prior to completion of infrastructure improvements, pursuant to the provisions established in chapter18.74, BMCarticle 39 of this chapter. 2. Building permit. Within the limits of the city, building permits shall be obtained by following the latest version of the International Building Code (International Code Council, 5360 South Workman Mill Road, Whittier, California) adopted by the city. 3. The building permit shall be obtained by application to the building official. Applications shall be accompanied by plans in duplicate, drawn to scale showing the actual dimensions and shape of the lot to be built upon; the legal description of the parcel; the exact sizes and location on the lot of buildings already existing, if any; the location and dimensions of the proposed buildings or alternatives; and two copies of the approved site plan or sketch plan as approved under chaptersarticles 18.3419, 18.3620, etc., of this chaptertitle. 4. One copy of the plans shall be returned to the applicant after the building official and planning director have marked each copy either as approved or disapproved and attested to same by their signatures. The second copy similarly marked shall be retained by the building department. 5. Approval of any plan that has been granted based upon false information provided by the applicant shall be deemed void without requirement for further action by the city. 6. Based upon an approved sketch, site plan, certificate of appropriateness, conditional use permit or planned unit development (hereinafter referred to as “plan”), and after any appeals have been resolved, a building permit for the site may be requested and may be granted, provided such building permit is granted within one year of plan approval. Prior to lapse of one year, the applicant may seek an extension of one additional year from the planning director. In such instances, the planning director shall determine that the terms and circumstances have not significantly changed since the initial approval. (Ord. No. 1645, § 18.64.100, 8-15-2005; Ord. No. 1693, § 23(18.64.100), 2-20-2007; Ord. No. 1761, exh. M(18.64.100), 7-6-2009) Sec. 38.34.110. Permit issuance; conformity with regulations required. No permit or license of any type shall be issued unless in conformance with the regulations contained within this chaptertitle. Permits issued on the basis of plans and applications approved by the building official and planning director authorize only the use, arrangement and construction set forth in such approved plans and applications, and no other use, arrangement or construction. Use, arrangement or construction at variance with that authorized shall be deemed a violation of this chaptertitle, punishable as provided in this chapterarticle. (Ord. No. 1645, § 18.64.110, 8-15-2005; Ord. No. 1693, § 23(18.64.110), 2-20-2007; Ord. No. 1761, exh. M(18.64.110), 7-6-2009) PROOFS Page 751 of 977 Sec. 38.34.120. Permits issued contrary to title deemed void. Any authorization, including without limitation subdivision approval, site plan approval or building permit, issued, granted or approved in violation of the provisions of this chaptertitle shall be null and void and of no effect without the necessity of any proceedings or a revocation or nullification thereof, and any work undertaken or use established pursuant to any such building permit or other authorization shall be unlawful. (Ord. No. 1645, § 18.64.120, 8-15-2005; Ord. No. 1693, § 23(18.64.120), 2-20-2007; Ord. No. 1761, exh. M(18.64.120), 7-6-2009) Sec. 38.34.130. Expiration of permits. Every permit issued by the building official under the provisions of this chaptertitle shall expire by limitation and become null and void if the building or work authorized by such permit has not commenced within 180 calendar days from the date of such permits, or if the building or work authorized by such permit is suspended or abandoned at any time after the work is commenced for a period of 120 calendar days. Before such work can be recommenced, a new permit shall first be obtained to do so, and the fee therefor shall be one-half the amount required for a new permit for such work, provided no changes have been made or will be made in the original plans and specifications for the work, and provided further that such suspension or abandonment has not exceeded one year. (Ord. No. 1645, § 18.64.130, 8-15-2005; Ord. No. 1693, § 23(18.64.130), 2-20-2007; Ord. No. 1761, exh. M(18.64.130), 7-6-2009) Sec. 38.34.140. Fee schedule. A. The city commission shall establish a schedule of fees, charges and expenses and a collection procedure for reviews, permits, appeals and other matters pertaining to this chaptertitle. The schedule of fees for the procedures listed below shall be set from time to time by the city commission by resolution. The fees shall be available in the office of the planning director and may be altered or amended only by the city commission. B. No subdivision, permit, zone change, site plan, conditional use, special temporary use, planned unit development, deviation or variance shall be issued unless or until such costs, charges, fees or expenses have been paid in full, nor shall any action be taken on proceedings before the administrative design review staff, development review committee, the design review board, the zoning commission, the planning board or the city commission until fees have been paid in full. (Ord. No. 1645, § 18.64.140, 8-15-2005; Ord. No. 1693, § 23(18.64.140), 2-20-2007; Ord. No. 1761, exh. M(18.64.140), 7-6-2009) Sec. 38.34.150. Complaints of alleged violations; filing and recording. Whenever a violation of this chaptertitle occurs or is alleged to have occurred, any person may file a written complaint. Such complaint, stating fully the causes and basis thereof shall be filed with the planning director. HeThe planning director shall record properly such complaint and immediately investigate and take action thereon as provided by this chaptertitle. (Ord. No. 1645, § 18.64.150, 8-15-2005; Ord. No. 1693, § 23(18.64.150), 2-20-2007; Ord. No. 1761, exh. M(18.64.150), 7-6-2009) Sec. 38.34.160. Violation; penalty; assisting or abetting; additional remedies. A. Violation of the provisions of this chaptertitle or failure to comply with any of its requirements including violations of conditions and safeguards established in connection with the grant of variances or conditional uses or any of the required conditions imposed by the planning director and/or city commission shall constitute a misdemeanor. Any person who violates this PROOFS Page 752 of 977 chaptertitle or fails to comply with any of its requirements shall upon conviction thereof be fined or imprisoned or both, as set forth in state law regarding subdivision and zoning, and in addition shall pay all costs and expenses involved in the case except as stated in subsection D of this section. 1. Each day such violation continues shall be considered a separate offense and punishable as such. 2. For violations relating to plats each sale, lease or transfer of each separate parcel of land in violation of any provision of these regulations or the Montana Subdivision and Platting Act shall be deemed a separate and distinct offense. B. The code compliance officer is authorized to issue a notice to appear under the provisions of MCA 46-6-310 to any violator of this chaptertitle. C. The owner or tenant of any building, structure, premises or part thereof, and any architect, builder, contractor, agent or other person who commits, participates in, assists or maintains such violation may each be found guilty of a separate offense and suffer the penalties herein provided. D. If transfers not in accordance with these regulations or the Montana Subdivision and Platting Act are made, the city attorney shall commence action to enjoin further sales or transfers and compel compliance with all provisions of these regulations. The cost of the action must be imposed against the party not prevailing. E. When a violation has not been corrected by the property owner after written notice from the city, the enforcement officer or planning director may seek approval for filing at the Gallatin county clerk and recorder’s office a notice of violation or noncompliance. Such notice shall serve to advise potential purchasers of existing violations of this chaptertitle or of on-going enforcement actions regarding a property. Such notice shall clearly state that the parcel or development on the parcel is in violation of this chaptertitle and that correction of the violation must be made prior to the city approving additional development or redevelopment of the site. The notice shall also describe the nature of the violation and applicable citations to the relevant sections of this chaptertitle. 1. When such a notice is to be filed the enforcement officer shall either: a. Through the office of the city attorney bring an action for civil and/or injunctive relief that requests a court order to record a notice of violation or noncompliance; or b. Schedule a public meeting to be held before the city commission with the intention of receiving an order from the city commission confirming the validity of the violation and the need for correction, and authorizing the recording of the notice of violation or noncompliance. Notice of such a hearing shall be provided as required by chapter18.76, BMCarticle 40 of this chapter. 2. When a violation has been corrected for which a notice of violation or noncompliance was filed, the city shall record a release of noncompliance indicating that the prior violation has been corrected. The property owner is responsible for notifying the planning department in writing of the correction of the violation or noncompliance. Upon receipt of such notification by the property owner, the enforcement officer shall conduct an inspection to verify correction prior to the recording of the release. F. The city may maintain an action or proceeding in a court of competent jurisdiction to compel compliance with or to restrain by injunction the violation of, any provision of this chaptertitle. PROOFS Page 753 of 977 G. Violation of this chaptertitle is a municipal infraction and may be punishable by a civil penalty as provided in section 24.02.040 BMC, in addition to other remedies of this section 18.64.160 except that the court shall impose the following minimum civil penalties. 1. Each day such violation continues shall be considered a separate offense and punishable as such. The minimum civil penalty for violation of this chaptertitle by the same person for the same violation within a 12-month period shall be: a. First citation: $100.00. b. Second citation: $150.00. c. Third and subsequent citations: $200.00. d. The determining factor with respect to the civil penalty is the receipt of service of the citation and not the judgment. H. Nothing herein contained shall prevent the city from taking such other lawful action as is necessary to prevent or remedy any violation. (Ord. No. 1645, § 18.64.160, 8-15-2005; Ord. No. 1693, § 23(18.64.160), 2-20-2007; Ord. No. 1761, exh. M(18.64.160), 7-6-2009) Chapter ARTICLE 35. APPEALS, DEVIATIONS AND VARIANCE PROCEDURES Sec. 38.35.010. Purpose. A. This chapterarticle is adopted: 1. To establish procedures for granting relief from the requirements of this chaptertitle subject to the standards of this chapterarticle in order to preserve equitable implementation of the law, prevent special treatment to particular parties and preserve the various rights established by the Montanastate and United States constitutions of all persons subject to this chaptertitle; 2. To provide through appeals of administrative interpretations a procedure for consideration of and resolution of disputes regarding the meaning and implementation of this chaptertitle; 3. To provide through deviations a procedure for flexibility, as a means to support creativity and excellence of design, in the application of the standards of this chaptertitle in overlay districts and planned unit developments as provided for in this chaptertitle; 4. To provide through zoning variances a procedure for relief from the occasional inequities created by the physical standards of this chaptertitle relating to zoning when such standards create a substantially unequal burden on a particular parcel of land in a fashion that would otherwise prevent the reasonable use of property, owing to physical circumstances unique to that parcel; 5. To prohibit the granting of variances that would be contrary to the public interest and endanger public health, safety and welfare; 6. To provide through subdivision variances a procedure for relief from standards relating to platting requirements or improvements within public rights-of-way when such standards would result in undue hardship and are not essential to the public health, safety and general welfare; and 7. To allow for appeals from decisions made by administrative staff approving, PROOFS Page 754 of 977 approving with conditions or denying applications for development approval. B. The board of adjustment shall hear and decide variances and deviations as follows: 1. Authorize in specific cases such deviations from the terms of this chaptertitle relating to zoning as will advance the intent and purposes of this chaptertitle and meet the standards established for the granting of deviations; 2. Authorize in specific cases such zoning variances from the physical standards of this chaptertitle, exclusive of those items included as subdivision variances, that will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship, and so that the spirit of this chaptertitle shall be observed and substantial justice done. C. The city commission shall hear and decide appeals of administrative decisions, variances and deviations as follows: 1. When reclaimed per section 18.64.01038.34.010C, BMC. a. Authorize in specific cases such deviations from the terms of this chaptertitle relating to zoning as will advance the intent and purposes of this chaptertitle and meet the standards established for the granting of deviations; and b. Authorize in specific cases such zoning variances from the physical standards of this chaptertitle, exclusive of those items included as subdivision variances, that will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions will result in unnecessary hardship, and so that the spirit of this chaptertitle shall be observed and substantial justice done. 2. Authorize in specific cases such subdivision variances from the platting requirements and standards for improvements within public rights-of-way required by this chaptertitle where it is found that strict compliance would result in undue hardship and is not essential to the public health, safety and general welfare. 3. Consider appeals from decisions of the planning director regarding subdivision exemptions. 4. Consider deviations to standards of the title when proposed through a planned unit development. 5. Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chaptertitle or of any standards adopted pursuant thereto. An aggrieved person may appeal the final decision of the planning director in the manner provided in this chapterarticle. (Ord. No. 1645, § 18.66.010, 8-15-2005; Ord. No. 1670, § 18.66.010, 8-28-2006; Ord. No. 1693, § 24(18.66.010), 2-20-2007; Ord. No. 1769, exh. L(18.66.010), 12-28-2009) Sec. 38.35.020. Hearing and notice requirements. A. There shall be a hearing before the board of adjustment or city commission for any appeal of administrative decisions and interpretations and for each application for any variance or deviation. The hearing shall be held at an appointed time and place. Testimony shall be taken by the BOA or commission from persons interested in the application and from the planning department staff. B. The planning director or city clerk of the commission shall give public notice as required by chapter18.76, BMCarticle 40 of this chapter of all public hearings to be held before the PROOFS Page 755 of 977 BOA or city commission. Notification of appeal procedures shall be included in the initial posting and notice of the proposal, provided that an initial posting and notice is required by chapter18.76, BMCarticle 40 of this chapter. (Ord. No. 1645, § 18.66.020, 8-15-2005; Ord. No. 1670, § 18.66.020, 8-28-2006; Ord. No. 1693, § 24(18.66.020), 2-20-2007; Ord. No. 1769, exh. L(18.66.020), 12-28-2009) Sec. 38.35.030. Administrative project decision appeals. A. An aggrieved person may appeal the final decision of the planning director in the manner provided in this section. Any appeal of a final administrative decision to approve, approve with conditions or deny an application shall be an appeal on the basis of the information available to the planning director including this chaptertitle, all submitted application materials, review and recommendations by administrative staff or advisory bodies, public comment and such other materials as were available. Denial of requests for waiver or alteration of applicable regulations is not a decision subject to appeal of an administrative decision. This section shall also apply to decisions by the planning director regarding evasion of the Subdivision and Platting Act per §18.10.070, BMCsection 38.05.070. B. Application of appeal procedures. Appeals from administrative staff to the city commission or the courts are set forth in the various sections of this chaptertitle. Said appeals are permitted under the provisions of this section in the manner set forth herein. 1. These appeal procedures shall apply to the decisions brought forth by the planning director. 2. Appeals shall be from the planning director to the city commission according to section 18.66.010, BMC38.35.010. 3. In reviewing an appeal the city commission shall consider the application as if it were the original approval. C. Filing of notice of appeal. An appeal shall be taken by filing with the city clerk of the commission a notice of intent to appeal by 5:00 p.m. on the fourth business day following the final decision of the planning director, and a documented appeal and appeal fee within seven business days of the final decision of the planning director. Such notice of intent to appeal shall include the following: 1. The action of the planning director which is the subject of the appeal; and 2. The date of such action. D. Appeal contents. In all cases, the complete appeal application shall include, and shall not be deemed filed until, all of the materials required by section 18.78.140, BMC38.41.140 is submitted. E. Notice of appeal. Once a complete appeal has been filed and a hearing date is set, notice of the appeal shall be provided in the same fashion as was required for notice of the initial application. The date, time and location for the public hearing on the appeal before the city commission shall be included in the required notice of the appeal. F. Scheduling of the hearing. Upon receipt of a complete appeal application the city clerk of the commission shall place the appeal on the next available regularly scheduled city commission agenda for scheduling. The city commission shall schedule the hearing of the appeal within 30 working days of the agenda item to set the hearing date. G. Material. The material to be considered by the city commission shall be the record of the project review, including the planning director's decision, in addition to materials that may be submitted during the processing and review of the appeal. PROOFS Page 756 of 977 1. No less than 14 calendar days prior to the appeal hearing before the city commission the planning department shall transfer the entire record of the application to the city commission. 2. Any materials submitted by the appellant shall be provided to the city commission no less than 14 calendar days prior to the appeal hearing before the city commission. H. Procedure of the hearing. At the hearing on the appeal, the following procedure shall be followed: 1. Only arguments and evidence relevant to the application shall be presented. The presentation shall be made in the following order, subject to such limitations, in time and scope as may be imposed at the discretion of the presiding officer: a. Explanation of the application and nature of the appeal and presentation by planning department staff; b. Presentation of position by the applicant and/or representative; c. Presentation by any person who is a proponent or an opponent of the application; and d. Motion, discussion and vote by the city commission. 2. No person making a presentation shall be subject to cross-examination except that members of the city commission and the city attorney may inquire of such person for the purpose of eliciting information and for the purpose of clarifying information presented. I. Alternative actions available to the appellate body. At the conclusion of the hearing, the city commission shall approve, approve with conditions or deny the application. (Ord. No. 1645, § 18.66.030, 8-15-2005; Ord. No. 1670, § 18.66.030, 8-28-2006; Ord. No. 1693, § 24(18.66.030), 2-20-2007; Ord. No. 1769, exh. L(18.66.030), 12-28-2009) Sec. 38.35.040. Administrative interpretation appeals. A. A request for appeal of an interpretation of this chaptertitle, including classifications of use per Chapter18.14, BMCarticle 7 of this chapter, shall be made by filing an application, with appropriate fees, with the city clerk of the commission within 30 calendar days of the interpretation decision. After receiving a completed application the city clerk of the commission shall schedule a hearing at a regular commission meeting. In all cases, the complete application shall include, and shall not be deemed filed until all of the materials required by section 18.78.150, BMC38.41.150 are submitted. B. The commission shall cause to be made such investigation of facts bearing on the application as will provide necessary information to ensure that the action on each such application is consistent with the intent and purpose of this chaptertitle. During time of appeal all construction shall cease and shall not commence until approved by the city commission. C. When interpreting the meaning of this chaptertitle, subsections of the ordinance chapter shall be construed in a manner that will give effect to them all as the ordinance chapter derives its meaning from the entire body of text taken together. D. The concurring vote of four members of the commission shall be necessary to reverse any order, requirements, decisions or determination of any administrative official, or to decide in favor of the applicant. (Ord. No. 1645, § 18.66.040, 8-15-2005; Ord. No. 1693, § 24(18.66.040), 2-20-2007; Ord. No. 1769, exh. L(18.66.040), 12-28-2009) PROOFS Page 757 of 977 Sec. 38.35.050. Deviations. All requests for deviations in the neighborhood conservation overlay district, entryway overlay districts or through the PUD process shall be heard by the BOA. Deviations may only be applied for in conjunction with submittal of a development proposal of a type authorized by chapterarticles 18.3419 and 18.36, BMC20 of this chapter. Standards and criteria for award of deviations are contained in chapterarticles 18.2816, 18.3017 and 18.36, BMC20 of this chapter. The concurring vote of four members of the BOA shall be necessary to grant requested deviations to this chaptertitle. The granting of a deviation is an exercise of administrative power that can effect no change in the ordinance chapter. A deviation may be granted only in a specific instance permitting a nonconformity in order to accomplish the specific objectives of sections 18.28.07038.16.070, 18.30.08038.17.080, and 18.36.03038.20.030D., and provided the standards and criteria imposed are met. Deviations shall not be granted for relief from procedural requirements, or to waive or vary the application of an ordinance provision imposing specific safety requirements, or to waive or vary the application of other ordinances or statutes. (Ord. No. 1645, § 18.66.050, 8-15-2005; Ord. No. 1670, § 18.66.050, 8-28-2006; Ord. No. 1693, § 24(18.66.050), 2-20-2007; Ord. No. 1769, exh. L(18.66.050), 12-28-2009) Sec. 38.35.060. Zoning variances. A. Application. A request for one or more variance shall be made by filing an application, with appropriate fees, with the planning director at least 30 calendar days prior to the BOA hearing and shall be accompanied by the materials described in section 18.78.160, BMC38.41.160. B. Investigation of facts. The BOA shall cause to be made such investigation of facts bearing on the application as will provide necessary information to ensure that the action on each such application is consistent with the intent and purpose of this chaptertitle. C. Criteria for consideration and decision. In acting on an application for a variance, the BOA shall designate such lawful conditions as will secure substantial protection for the public health, safety and general welfare, and shall issue written decisions setting forth factual evidence that the variance meets the standards of MCA 76-2-323 in that the variance: 1. Will not be contrary to and will serve the public interest; 2. Is necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this chaptertitle: a. Hardship does not include difficulties arising from actions, or otherwise be self-imposed, by the applicant or previous predecessors in interest, or potential for greater financial returns; and b. Conditions unique to the property may include, but are not limited to, slope, presence of watercourses, after the fact imposition of additional regulations on previously lawful lots, and governmental actions outside of the owners control; 3. Will observe the spirit of this chaptertitle, including the adopted growth policy, and do substantial justice; 4. In addition to the criteria specified above, in the case of a variance relating to the flood hazard provisions of chapter 18.58, BMCarticle 31 of this chapter: a. Variances shall not be issued for areas within a floodway if any additional increase in flood elevations or velocities after allowable encroachments into the floodway fringe would result; PROOFS Page 758 of 977 b. Variances shall only be issued upon: (1) A determination that the granting of a variance will not result in increased flood hazards, present additional threats to public safety, be an extraordinary public expense, create nuisances, cause fraud, victimize the public, or conflict with existing state and local laws; (2) A determination that the proposed use would be adequately floodproofed as specified in chapter18.58, BMCarticle 31 of this chapter; (3) A determination that a reasonable alternate location outside the floodplain is not available; (4) A determination that the variance requested is the minimum necessary to afford relief, considering the flood hazard; and (5) Approval of the Montanastate department of natural resources and conservation, upon request from the city, prior to formally approving any permit application that is in variance to these regulations. D. Authorization and limitations on approval. 1. The BOA may, after public notice and hearing, deny, approve or conditionally approve all requests for variances meeting all the criteria of this section, including: a. Requests to modify dimensional or other numerical requirements of this chaptertitle; b. Requests for multiple variances; c. Requests to modify flood hazard district requirements subject to the provisions of chapter18.58, BMCarticle 31 of this chapter, except that no variance shall be granted to allow construction of buildings within the floodway of a 100-year frequency flood as defined in title 76, chapter 5, Montana Code Annotated (MCA 76-5-101 et seq.); and d. Requests for variances in conjunction with conditional use permits, except planned unit developments. Approvals of all such variances shall be conditioned upon BOA approval of the conditional use permit. 2. The scope and extent of the variance shall be limited to the minimum relief necessary to provide reasonable use of the property. 3. In no case may the BOA grant variances to allow uses not already permitted pursuant to this chaptertitle or alter administrative requirements of this chaptertitle. Permission to change uses allowed on a parcel may be sought through a zone map amendment or an amendment to the text of the applicable zoning district. 4. The concurring vote of four members of the BOA shall be necessary to effect any variance of this chaptertitle. 5. Notifications of approval for variances related to flood hazard requirements of chapter18.58, BMCarticle 31 of this chapter shall notify the applicant that: a. The issuance of a variance to construct a building below the 100-year floodplain elevation will result in increased premium rates; and b. Such construction below the 100-year flood elevation increases risks to life and property. E. Effective time for BOA decisions; variances void when. The decision of the BOA shall PROOFS Page 759 of 977 be final except as provided in section 18.66.080, BMC38.35.080. If a building permit or land use permit is not obtained for the subject property within six months from the date of the BOA's decision, the variance shall be automatically canceled and become null and void. F. Variances. Variances are subject to MCA 76-2-321 through 76-2-328. (Ord. No. 1645, § 18.66.060, 8-15-2005; Ord. No. 1670, § 18.66.060, 8-28-2006; Ord. No. 1693, § 24(18.66.060), 2-20-2007; Ord. No. 1769, exh. L(18.66.060), 12-28-2009) Sec. 38.35.070. Subdivision variances. A. Procedure. The subdivider shall provide during the preapplication process, and include with the submission of the preliminary plat, a written statement describing the requested variance and the facts of hardship upon which the request is based. The planning board shall include their findings and conclusion regarding the requested variance in its recommendation to the city commission. The city commission shall then consider each variance at the public hearing on the preliminary plat. A public hearing may not be held on a variance in association with a first minor subdivision. B. Review criteria. Per MCA 76-3-506, a variance to this chaptertitle must be based on specific variance criteria, and may not have the effect of nullifying the intent and purpose of this chaptertitle. The city commission shall not approve subdivision variances unless it makes findings based upon the evidence presented in each specific case that: 1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties; 2. Because of the particular physical surroundings, shape or topographical conditions of the specific property involved, an undue hardship to the owner would result if strict interpretation of this chaptertitle is enforced; 3. The variance will not cause a substantial increase in public costs; and 4. The variance will not, in any manner, place the subdivision in nonconformance with any other provisions of this chaptertitle or with the city's growth policy. C. Variances from floodway provisions not authorized. The city commission may not, by subdivision variance, permit subdivision for building purposes in areas located within the floodway of a flood of 100-year frequency as defined in title 76, chapter 5, Montana Code Annotated (MCA 76-5-101 et seq.). Any variances related to floodways shall meet the standards of section 18.66.06038.35.060.C.4.a, BMC. D. Conditions. In granting subdivision variances, the city commission may require such conditions as will, in its judgment, secure the objectives of this chaptertitle. Any approval under this section shall be subject to the terms of the conditions designated in connection therein. Any conditions required shall be related both in purpose and scope with the relief sought through the variance. E. Statement of facts. When any variance from this chaptertitle is granted, the motion of approval shall contain a statement describing the variance and conditions upon which the issuance of the variance is based. F. Planned unit development. Where the standards and requirements of this chaptertitle are proposed to be modified through a planned unit development, the applicable process shall be a deviation rather than a variance. G. Limitations on approvals. For subdivision variances, the variance approval shall be null and void if the final plat is not filed within the time allowed for final approval by the city commission decision. PROOFS Page 760 of 977 (Ord. No. 1645, § 18.66.070, 8-15-2005; Ord. No. 1693, § 24(18.66.070), 2-20-2007; Ord. No. 1769, exh. L(18.66.070), 12-28-2009) Sec. 38.35.080. Appeals from city commission or board of adjustment actions. A. Zoning variances. Any person or persons, jointly or severally, aggrieved by any decision of the BOA or city commission under this chapterarticle, or any taxpayer, or any officer, department, board or bureau of the municipality may present to a court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part and specifying the grounds of illegality. Such petition shall be presented to the court within the timeframe established by state law. B. Zoning decisions. An aggrieved person may appeal the approval, approval with conditions or denial of a development application acted upon by the BOA or city commission by presenting to a court of record a petition, duly verified, setting forth that such decision is illegal in whole or in part and specifying the grounds of illegality. Such petition shall be presented to the court within the timeframe established by state law. C. Subdivision appeals. A party identified in subsection C.1 of this section who is aggrieved by a decision of the city commission to approve, conditionally approve or disapprove a proposed preliminary plat or final subdivision plat, including variances, may, within 30 days after the decision, appeal to the Eighteenth Judicial District Court, Gallatin County, State of Montana. The petition must specify the grounds upon which the appeal is made. 1. The following parties may appeal under the provisions of this section: a. The subdivider; b. A landowner with a property boundary contiguous to the proposed subdivision or a private landowner within the county where the subdivision is proposed if that landowner can show a likelihood of material injury to the landowner's property or its value; and c. The Gallatin county commission. 2. If the aggrieved person is the subdivider, they may bring an action in district court to sue the city to recover actual damages caused by a final action, decision, or order of the city commission or a regulation adopted pursuant to this chapterarticle that is arbitrary or capricious. (Ord. No. 1645, § 18.66.080, 8-15-2005; Ord. No. 1670, § 18.66.080, 8-28-2006; Ord. No. 1693, § 24(18.66.080), 2-20-2007; Ord. No. 1769, exh. L(18.66.080), 12-28-2009) CHAPTER 18.68. TEXT AMENDMENTS* ARTICLE 36. TEXT AMENDMENTS* *State law reference—Alteration of zoning regulations, MCA 76-2-305. Sec. 38.36.010. Initiation of amendments and changes. A. The city commission may, from time to time, amend, supplement or change this chaptertitle and the regulations appertaining thereto. An amendment, supplement or change may be initiated by the city commission, city manager, zoning commission, planning board or upon petition from an owner of property within the city. B. The city commission, planning board or zoning commission may upon a vote of a majority of its members direct the initiation of an amendment to this chaptertitle and the regulations appertaining thereto. When one of these bodies initiates an amendment, the application shall be signed by the mayor, president of the planning board or chairman of the PROOFS Page 761 of 977 zoning commission as applicable. C. Whenever any person or entity allowed to initiate an amendment desires a change in regulations, they may file with the planning department, on forms provided by the city for this purpose, an application duly signed and notarized by that person or authorized representative of that entity requesting an amendment or change of regulations. 1. When the application initiated by an owner of property, bearing the property owners signature, is filed with the department it shall contain or be accompanied by: a. All the data and information pertinent to the understanding and judgment of the proposal, as may be prescribed by the commission for that purpose so as to ensure the fullest practicable presentation of facts for the permanent record; and b. A notarized statement by at least one of the owners of property within the area subject to the proposed changes attesting to the truth and correctness of all facts and information presented with the petition. (Ord. No. 1645, § 18.68.010, 8-15-2005; Ord. No. 1769, exh. M(18.68.010), 12-28-2009) Sec. 38.36.020. Amendments; investigation requirements. Upon initiation of an amendment, the city shall cause to be made an investigation of facts bearing on such initiation or petition. The purpose of the investigation is to provide the necessary information to ensure that the action of each such petition is consistent with the intent and purpose of this chaptertitle as set forth in section 18.02.040, BMC38.01.040; this includes but is not limited to accordance with the Bozemancity growth policy. Amendments only addressing zoning standards will be measured against the zoning purposes. Amendments which address only subdivision standards will be measured against the purposes related to the subdivision purposes. Amendments which apply to both zoning and subdivision standards will be reviewed against all the purposes. (Ord. No. 1645, § 18.68.020, 8-15-2005; Ord. No. 1769, exh. M(18.68.020), 12-28-2009) Sec. 38.36.030. Public hearing procedures and requirements. A. The city commission, zoning commission and/or planning board shall hold one or more public hearings on the matters referred to in such initiation or petition at which parties in interest and citizens shall have an opportunity to be heard. Notice of such public hearings shall be provided as required by chapter18.76, BMCarticle 40 of this chapter. B. Any amendment to the text of the title shall be the subject of one or more public hearing before the city commission, after receiving a recommendation from the zoning commission and/or planning board as set forth belowin this section. C. The public hearings to be heard by the zoning commission and/or planning board shall be conducted by the bodies specified in this subsection: 1. Any amendment to the text of this chaptertitle affecting only zoning provisions of this chaptertitle shall be heard by the zoning commission. 2. Any amendment to the text of this chaptertitle affecting only subdivisions shall be heard by the planning board. 3. Any amendment to the text of this chaptertitle affecting both zoning and subdivision shall be heard as a joint hearing of the planning board and zoning commission with the president of the planning board to preside. When there is a question as to whether an amendment would affect both subdivision and zoning, the public hearing shall be jointly held. PROOFS Page 762 of 977 4. After such hearing or hearings, the zoning commission and/or planning board will make reports and recommendations on the petition or initiation to the city commission. D. In the event that there is a question as to whether a proposed text amendment affects both zoning and subdivision, or only one of the subjects, the planning director shall determine which bodies must hold a public hearing. E. Recommendations to the city commission and other official actions by both the zoning commission and the planning board shall be only be official if made by at least a majority of a quorum of the body. (Ord. No. 1645, § 18.68.030, 8-15-2005; Ord. No. 1769, exh. M(18.68.030), 12-28-2009) Sec. 38.36.040. Protest text amendments. In the case of protest against such changes signed by the owners of 25 percent or more of either the area of the lots included in any proposed change, or those lots 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two- thirds of the present and voting members of the city commission. (Ord. No. 1645, § 18.68.040, 8-15-2005; Ord. No. 1769, exh. M(18.68.040), 12-28-2009) Chapter 18.70. ZONING MAP AMENDMENTS ARTICLE 37. ZONING MAP AMENDMENTS* *State law reference—Alteration of zoning regulations, MCA 76-2-305. Sec. 38.37.010. Initiation of amendments and changes. A. The city commission may, from time to time, amend, supplement or change the zoning district maps appertaining to this chaptertitle. An amendment, supplement or change may be initiated by the city commission, zoning commission or upon application from an owner of property within the city. B. The city commission or zoning commission may upon a vote of a majority of its members direct the initiation of an amendment to the zoning map. When either body initiates an amendment, the application shall be signed by the mayor or chairman of the zoning commission as applicable. C. Whenever the property owner of any land or building desires a reclassification on his/herthe owner’s property, they may file with the planning department an application requesting an amendment or change of regulations prescribed for such property. Applications for change of district boundaries or reclassification of districts as shown on the zoning district map shall be on forms supplied and prepared by the department. When the application, bearing property owner' signatures, is filed with the department it shall contain or be accompanied by: 1. All the data and information pertinent to the understanding and judgment of the proposal, as may be prescribed by the commission for that purpose so as to ensure the fullest practicable presentation of facts for the permanent record; and 2. A notarized statement by at least one of the owners of property within the area proposed to be changed attesting to the truth and correctness of all facts and information presented with the application. D. Whenever an owner of any land within the city desires a reclassification on property that they do not own, such as a request to establish a different zoning classification for a block or other group of properties, they may file with the planning department on forms provided by the city for this purpose an application duly signed by the owners of no less than 51 percent of either PROOFS Page 763 of 977 the area of lots or number of lots of the affected property requesting an amendment for such property. When the application, bearing property owners signatures, is filed with the department it shall contain or be accompanied by: 1. All the data and information pertinent to the understanding and judgment of the proposal, as may be prescribed by the commission for that purpose so as to ensure the fullest practicable presentation of facts for the permanent record; and 2. A notarized statement by at least one of the owners of property within the area proposed to be changed attesting to the truth and correctness of all facts and information presented with the petition. An application containing less than the required number of signatures shall be considered incomplete and invalid and shall not be processed. (Ord. No. 1645, § 18.70.010, 8-15-2005; Ord. No. 1769, exh. N(18.70.010), 12-28-2009) Sec. 38.37.020. Amendments and rezonings; investigation requirements. Upon initiation of an amendment the city shall cause to be made an investigation of facts bearing on such initiation or application as will provide necessary information to ensure that the action of each such application is consistent with the intent and purpose of this chaptertitle. Specifically the investigation must address the criteria of MCA 76-02-304 which are contained in section 18.02.040.38.01.040.C, BMC. (Ord. No. 1645, § 18.70.020, 8-15-2005; Ord. No. 1769, exh. N(18.70.020), 12-28-2009) Sec. 38.37.030. Public hearing procedures and requirements. A. The city commission and zoning commission shall hold public hearings on the matters referred to in such application at which parties of interest and citizens shall have an opportunity to be heard. B. The planning director shall give public notice as required by chapter18.76, BMCarticle 40 of this chapter. The planning director shall provide to the city commission and zoning commission a report of the staff's analysis of the application. C. After such hearing or hearings, the zoning commission will make reports and recommendations on the application to the city commission. D. After the zoning commission has forwarded a recommendation on the amendment to the zoning district map, a public hearing shall be held by the city commission for the purpose of acting upon the proposed amendment after public notice. 1. In the case of protest against such changes, signed by the owners of 25 percent or more of either the area of the lots included in any proposed change or those lots 150 feet from a lot included in a proposed change, such amendment may not become effective except upon a favorable vote of two-thirds of the present and voting members of the city commission. The provisions of this subsection 18.70.030.D include the ability for an applicant to protest a possible decision to adopt a zoning less than originally requested when the applicant meets the same criteria as other affected landowners. 2. If the city commission intends to adopt a zoning designation different than that applied for, the hearing will be continued for a minimum of one week to enable the applicant to consider their options and whether to protest the possible action. In the case of protest against a change to the zoning map by the applicant the same favorable vote of two-thirds of the present and voting members of the city commission is required as for any other protested zoning action. PROOFS Page 764 of 977 (Ord. No. 1645, § 18.70.030, 8-15-2005; Ord. No. 1769, exh. N(18.70.030), 12-28-2009) CHAPTER 18.72. SUPPLEMENTARY DOCUMENTS ARTICLE 38. SUPPLEMENTARY DOCUMENTS Sec. 38.38.010. General. When required, the supplementary documents described in this chapterarticle shall be submitted in draft form with the preliminary plat or plan, and signed and notarized with the final plat or plan. The proper notary block shall be used. (Ord. No. 1645, § 18.72.010, 8-15-2005; Ord. No. 1693, § 25(18.72.010), 2-20-2007; Ord. No. 1709, § 14(18.72.010), 7-16-2007; Ord. No. 1761, exh. N(18.72.010), 7-6-2009) Sec. 38.38.020. Property owners’ association. A. General. If common property is to be deeded to the property owners association or similar organization, of if the property owners association will be responsible for the maintenance of the development’s streets, centers, landscaping in street boulevards, park land or pathways, property owners association bylaws or the declaration of covenants, conditions and restrictions shall be prepared and recorded with the final plat. B. Bylaws or covenants, conditions and restrictions contents. The property owners’ association bylaws or declaration of covenants, conditions and restrictions shall contain the following information: 1. Membership. Automatic and mandatory membership for each property or unit buyer and any subsequent buyer. 2. Common land/facilities. The legal description of the common land and a description of common facilities. 3. Enforcement. Persons or entities entitled to enforce the restrictions, responsibilities and payment of assessments, including the city. 4. Perpetual reservation. Perpetual reservation and limited use of common property. 5. Right to use. The right of each property or unit owner to use and enjoyment of any common property or facility. 6. Responsibility. Responsibility for liability insurance, any applicable tax assessments and the maintenance of any common property or facilities to be placed in the association. 7. Assessments. A mechanism to assess the common expenses for the land or facilities including upkeep and maintenance expenses, real estate taxes and insurance premiums. Assessments shall require each property or unit owner to pay a pro rata share of the cost of any common expenses, with any assessment charged by the association becoming a lien where necessary on individual parcels. Safeguards against unreasonably high charges and provision to adjust assessments may be provided. 8. A mechanism for resolving disputes among the owners or association members. 9. The conditions and timing of the transfer of ownership and control of land facilities to the association. 10. Any other matter the developer or the city deems appropriate. 11. In the event it becomes necessary for a property owners association to retain an attorney to enforce any of the association bylaws or covenants, conditions and PROOFS Page 765 of 977 restrictions, then the prevailing party shall be entitled to reasonable attorney’s fees and costs. C. If the property owners association fails to install or maintain improvements according to approved plans, the city may, at its option, complete construction of improvements and/or maintain improvements in compliance with §18.72.030section 38.38.030 and Chapter18.74, BMCarticle 39 of this chapter. The city’s representative, contractors and engineers shall have the right to enter upon the property and perform such work, and the property owners association shall permit and secure any additional permission required to enable them to do so. The city shall bill the property owners association for any costs associated with the installation or maintenance of improvements. (Ord. No. 1645, § 18.72.020, 8-15-2005; Ord. No. 1693, § 25(18.72.020), 2-20-2007; Ord. No. 1709, § 14(18.72.020), 7-16-2007; Ord. No. 1761, exh. N(18.72.020), 7-6-2009) Sec. 38.38.030. Covenants. A. The city may require covenants to be recorded with the final plat when it is determined they are necessary for the protection of the public health, safety and general welfare. All covenants shall be considered to run with the land. If the covenants are not marked or noted on the final subdivision plat, they shall be contained in a separate instrument which shall be recorded with the final plat. The covenants may be required to include, but are not limited to, the following provisions: 1. That all county declared noxious weeds will be controlled. 2. A section addressing agricultural uses of neighboring properties in the following form: “Lot owners and residents of the subdivision are informed that adjacent uses may be agricultural. Lot owners accept and are aware that standard agricultural and farming practices can result in dust, animal odors and noise, smoke, flies, and machinery noise. Standard agricultural practices feature the use of heavy equipment, chemical sprays and the use of machinery early in the morning and sometimes late into the evening.” 3. That all fences bordering agricultural lands shall be maintained by the landowners in accordance with state law. 4. The property owners association shall be responsible for the maintenance of subdivision streets, common open space, centers, pathways, landscaping in street boulevards and/or parks. 5. That any covenant which is required as a condition of the preliminary plat approval and required by the city commission may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures in the covenants, and the city commission. 6. The condition and timing of the transfer of the property owners association from developer to the subsequent purchasers. 7. Common area and facility maintenance plan. The developer shall submit a legal instrument setting forth a plan providing for the permanent care and maintenance of common areas and facilities. These common areas and facilities shall include but are not limited to commonly owned open spaces, recreational areas, facilities, private streets and parking lots. These common areas and facilities shall also include but are not limited to public parks, squares, open space, recreation areas, trails, as well as any public streets, avenues and alleys not accepted by the city for maintenance. PROOFS Page 766 of 977 The same shall be submitted to the city attorney and shall not be accepted by the city until approved as to legal form and effect. If the common areas are deeded to a property owners association, the applicant shall record the proposed documents governing the association at the time of final plat filing. Such documents shall meet the following requirements: a. The property owners association must be established before any residences or other properties are sold; b. Membership in the association must be mandatory for each property owner with a specified method of assigning voting rights; c. Open space restrictions must be permanent and not for a period of years; d. The property owners association must be made responsible for liability insurance, taxes, and maintenance of common facilities; e. The association must have the power to levy assessments which can become a lien on individual premises for the purpose of paying the cost of operating and maintaining common facilities; and f. The governing board of any such association shall consist of at least five members who shall be owners of property in the development. 8. Common area and facility maintenance guarantee. In the event the organization or any successor organization established to own and maintain common areas and facilities, shall at any time fail to maintain the common areas or facilities in reasonable order and condition in accordance with the approved plan, the city commission may cause written notice to be served upon such organization or upon the owners of property in the development. The written notice shall set forth the manner in which the common areas or facilities have failed to be maintained in reasonable condition. In addition, the notice shall include the demand that the deficiencies noted be cured within 30 days thereafter and shall state the date and place of a public meeting to be held within 14 days of the notice. At the time of public meeting, the city commission may modify the terms of the original notice as to deficiencies and may extend the time within which the same may be cured. If the deficiencies set forth in the original notice or modifications are not cured within the time set, the city may enter upon such common facilities and maintain the same for a period of one year, in order to preserve the taxable values of properties within the development and to prevent the common facilities from becoming a public nuisance. Such entry and maintenance shall not vest in the public any right to use the common facilities not dedicated to public use. Before the one year period expires, the commission shall, upon its own initiative or upon written request of the organization theretofore responsible for maintenance, call a public meeting and give notice of such meeting to the organization responsible for maintenance or the property owners of the development. At the hearing, the organization responsible for maintenance and/or the residents of the development may show cause why maintenance by the city should not be continued for a succeeding year. If the city commission determines that it is not necessary for the city to continue such maintenance, the city shall cease such maintenance at the time established by the city commission. Otherwise the city shall continue maintenance for the next succeeding year subject to a similar meeting and determination at the end of each year thereafter. a. The cost of maintenance by the city shall be a lien against the common facilities of the development and the private properties within the PROOFS Page 767 of 977 development. The city commission shall have the right to make assessments against properties in the development on the same basis that the organization responsible for maintenance of the facilities could make such assessments. Any unpaid assessment shall be a lien against the property responsible for the same, enforceable the same as a mortgage against such property. The city may further foreclose its lien on the common facility by certifying the same to the county treasurer for collection as in the case of collection of general property taxes. b. Should the property owners association request that the city assume permanent responsibility for maintenance of facilities, all facilities shall be brought to city standards prior to the city assuming responsibility. The assumption of responsibility must be by action of the city commission and all costs to bring facilities to city standards shall be the responsibility of the property owners association. The city may create special financing mechanisms so that those properties within the area affected by the property owners association continue to bear the costs of maintenance. c. These common areas and facilities shall include but are not limited to commonly owned open spaces, recreational areas, facilities, private streets and parking lots. These common areas and facilities shall also include but are not limited to public parks, squares, open space, recreation areas, trails, as well as any public streets, avenues and alleys not accepted by the city for maintenance. d. The city shall assume permanent responsibility for maintenance of public areas and facilities when a dedicated funding mechanism is adopted. 9. Guarantee for open space preservation. Open space shown on the approved final plan or plat shall not be used for the construction of any structures not shown on the final plan. 10. Covenants may not contain provisions which inhibit compliance with the requirements of chapter 10, article 17.02, BMC8, for those developments subject to chapter 10, article 17.02, BMC8. Some examples are: privately required minimum home or lot sizes which can not be met. (Ord. No. 1645, § 18.72.030, 8-15-2005; Ord. No. 1693, § 25(18.72.030), 2-20-2007; Ord. No. 1709, § 14(18.72.030), 7-16-2007; Ord. No. 1761, exh. N(18.72.030), 7-6-2009) CHAPTER 18.74. IMPROVEMENTS AND GUARANTEES ARTICLE 39. IMPROVEMENTS AND GUARANTEES Sec. 38.39.010. Purpose and applicability. A. This chapterarticle is to provide standards and procedures relating to the installation of physical improvements and compliance with requirements related to development. As these improvements are necessary to meet requirements of the law and to protect public health, safety and general welfare and other purposes of this chaptertitle it is also necessary to provide means by which their installation can be ensured. Such improvements may include, but are not limited to, design elements such as landscaping, parking facilities, storm drainage facilities, architectural features, pedestrian walkways and public utilities. Furthermore, in some situations it is in the best interest of the person conducting development to be able to guarantee the completion of certain work and be able to begin utilization of a development sooner than would otherwise be possible if all improvements had to be physically installed before use could begin. PROOFS Page 768 of 977 This chapterarticle therefore has the following purposes: 1. Ensure completion of required improvements or compliance with other requirements of development to an acceptable standard; 2. Provide buyer/lessee protection while allowing a person undertaking development to proceed with sales/leases before the project is totally complete, especially multiphased projects; 3. Ensure adequate warranty or maintenance, when appropriate, of improvements; 4. Provide for mechanisms to ensure performance of or conformance with conditions of approval or development requirements; and 5. Accomplish the above listed purposes listed in this subsection A through mechanisms that reduce the need to rely on costly litigation to accomplish those purposes. B. This chapterarticle applies to all subdivisions and site developments as described belowas follows: 1. Subdivisions shall install or provide security for installation of improvements prior to final platting as set forth in detail in this chapterarticle. 2. Site developments including, site plans, conditional use permits, planned unit developments, reuses and certificates of appropriateness, shall install improvements or provide security for installation prior to occupancy or commencement of use. 3. The city may determine the nature and timing of required installation of improvements as part of the subdivision or site development process. When necessary to protect the health, safety, and general welfare of the public, and ensure the function and viability of development, certain needed improvements may not be allowed to be financially guaranteed. (Ord. No. 1645, § 18.74.010, 8-15-2005; Ord. No. 1693, § 26(18.74.010), 2-20-2007; Ord. No. 1761, exh. O(18.74.010), 7-6-2009; Ord. No. 1769, exh. O(18.74.010), 12-28-2009) Sec. 38.39.020. Standards for improvements. A. General. It shall be the responsibility of the developer to comply with the following procedures and standards for the installation of development improvements, including parks. 1. Construction routes. For all developments, excluding sketch and reuse/further development, a construction route map shall be provided showing how materials and heavy equipment will travel to and from the site. The route shall avoid, where possible, local or minor collector streets or streets where construction traffic would disrupt neighborhood residential character or pose a threat to public health and safety. 2. Protection of existing improvements. The developer, hisand the developer’s contractors and suppliers shall be jointly and severally responsible to ensure that existing improvements are not damaged or rendered less useful by the operation of the developer, hisand the developer’s contractors or suppliers. Such protection of improvements may include requirements for cleaning of vehicles leaving a construction site. This provision is intended to preclude damage to existing roads, streets, water, sewer and drainage systems. The city engineer may instruct the developer as to the streets or roads to be used for access by construction equipment, and the developer shall be responsible for enforcement of this instruction upon histhe developer’s contractors and their suppliers. The city may require the developer to post a surety to guarantee repair of damages. PROOFS Page 769 of 977 B. Improvements to be dedicated to the public. 1. Plans and specifications. Engineering and survey plans, specifications and reports required in connection with public improvements and other elements of the subdivision, or other development required by the city, shall be prepared by a registered engineer and/or a registered land surveyor, licensed in the state of Montana, as their respective licensing laws allow. The plans and specifications shall be prepared in compliance with the city's design standards and specifications policy and/or park design standards as is applicable. Plans and specifications for nonengineering improvements shall be prepared by a person whose qualifications are acceptable to the city department with responsibility for the type of improvements. Plans and specifications for nonengineering improvements shall be prepared in compliance with any applicable adopted design standards and specifications policy. 2. Scope of work. The intent of these regulations is to provide standards by which the contractor and the developer shall execute their respective responsibilities and guarantee proper construction and completion in every detail of the work in accordance with the plans, specifications and terms set forth under these regulations. a. The developer shall furnish the plans, specifications and typical sections for approval by the city. It shall be understood that the work to be done will not necessarily be limited to occurring within the right-of-way or park boundaries. b. The city has authority to make or cause to be made any reasonable changes, alterations, amendments and additions to the standard specifications for infrastructure or park improvements. 3. Control of work. During the course of construction, and at the completion of each phase of the project, the developer's registered civil engineer, or other person acceptable to the city, shall submit a statement that the improvements have been inspected and found to have been constructed in accordance with the approved plans and specifications. Prior to making any changes, the developer's engineer shall notify and receive written approval or disapproval from the city for any changes in approved plans and specifications. 4. Improvement procedure. a. Approval of the improvement plans and specifications shall be completed before installation of improvements or the entering into of an agreement where surety is to be provided for the completion of the improvements. b. The procedure for submittal, review and approval of improvement plans and specifications is contained in the city's design standards and specifications policy, and shall be followed by the developer and/or histhe developer’s contractors. All plans and specifications related to park and public trail improvements shall be submitted to the parks division for review and approval. c. After the preliminary plat has received approval or conditional approval, and before the final plat is submitted, the developer shall either install the required improvements or enter into an agreement with the city financially guaranteeing the installation and performance of the improvements. d. After the final site plan is approved, subject to §18.74.030section 38.39.030.C, PROOFS Page 770 of 977 BMC, and prior to occupancy of any buildings, the developer shall either install the required improvements or enter into an agreement with the city financially guaranteeing the installation and performance of the improvements. 5. Sanitary facilities. Water supply, sewage disposal and solid waste disposal systems shall meet the minimum standards of the city and the Montanastate department of environmental quality as required by MCA 76-4-101 through 76-4-135, and regulations adopted pursuant thereto, and are subject to the approval of the city. C. Private improvements. Improvements shall be constructed as shown on the approved final site plan, final plat, or plans and specifications, as may be applicable. The developer is responsible for coordinating installation with all necessary parties and to restore to its original condition any public improvements or any private improvements or property damaged during installation of private improvements. (Ord. No. 1645, § 18.74.020, 8-15-2005; Ord. No. 1693, § 26(18.74.020), 2-20-2007; Ord. No. 1761, exh. O(18.74.020), 7-6-2009; Ord. No. 1769, exh. O(18.74.020), 12-28-2009) Sec. 38.39.030. Completion of improvements. A. General. The applicant shall provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements to be dedicated to the public were installed in accordance with the approved site plan, plans and specifications, or plat as applicable. For required private improvements, the applicant shall provide certification by the architect, landscape architect, engineer or other applicable professional that all improvements, including, but not limited to, landscaping, ADA accessibility requirements, private infrastructure, or other required elements were installed in accordance with the approved site plan, plans and specifications, or plat as applicable, unless a waiver of certification in whole or part is explicitly approved by the DRC. 1. Improvements to be dedicated to the public. Improvements to be dedicated to the public, such as water mains, sewer mains, park land and related improvements, and public streets, shall be installed in accordance with the approved plans and specifications by the developer, and certified by a registered professional civil engineer, licensed in the state of Montana, and accepted by the city prior to the approval of the final plat, building permit, issuance of a certificate of occupancy or other identified benchmark as may be appropriate. As-built drawings complying with the city's design standards and specifications policy, including timing for submittal of materials, shall be provided. a. Public street means a public right-of-way or easement developed to adopted city standards including, but not limited to, the following improvements: curbs, gutters, storm drainage, sidewalks, paving, traffic control signage or equipment, and lighting. 2. Private improvements and other required improvements. Improvements, such as, but not limited to, private parks or open space, landscaping, paving or irrigation shall be installed in accordance with the approved preliminary plat or final site plan by the developer and inspected and found to comply with the city standards or requirements prior to the approval of the final plat, issuance of a certificate of occupancy for the building or site, or other identified benchmark as may be appropriate. All improvements required as part of a subdivision must be installed and accepted, or financially secured in accordance with an improvements agreement, prior to final plat approval. PROOFS Page 771 of 977 3. Improvements agreement required. All improvements necessary or required to meet the standards of this chaptertitle or conditions of approval shall be the subject of an improvements agreement and be guaranteed if final plat approval, occupancy of buildings or other utilization of an approved development is allowed before the improvements are completed and inspected by the city. a. Reservation. The city reserves the right to require actual installation of improvements prior to occupancy when such improvements are necessary to provide for health, safety and welfare or adequate function of systems or on- site development. B. Completion time for subdivisions. 1. Improvements. All subdivision improvements, including parks, shall be constructed and completed as approved by the city. a. All improvements shall be installed prior to the issuance of a building permit for any lot within a subdivision unless otherwise provided for in development proposals occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, planned unit development (PUD), when concurrent construction is an identified purpose of the initial project review, and pursuant to the criteria established in subsection 18.74.030D, BMC of this section. b. The subdivider shall meet one of the following requirements for completion of street improvements. The option shall be specified in the preliminary plat submittal. Should the applicant not identify which option is desired, the option presented in subsection B.1.b.(1) of this section shall be required. Altering the choice of option after approval of the development shall constitute a material modification to the project and require re-review of the project for modification to the approval subject to the provisions of section 18.02.070, BMC38.01.070. (1) The subdivision streets improvements shall be installed prior to final plat approval. This requirement may be modified by the city engineer for streets where dictated by circumstances, and where acceptable improvement security for the ultimate development of the streets is provided. However, under no circumstances shall the required gravel courses, curbs or gutters be waived. This requirement shall generally not be modified for nonresidential developments; or (2) The subdivider shall enter into an improvements agreement guaranteeing the completion of the paving, curb, gutter, storm drainage, street lighting or other street infrastructure improvements not yet completed. The improvements agreement shall be financially guaranteed, as explained in this chapterarticle. However, at a minimum, the plans and specifications for the street improvements must be approved by the city engineer prior to final plat approval. Building permits will not be issued until the street improvements are completed and accepted by the city unless otherwise provided for in development proposals occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, planned unit development (PUD), and pursuant to the criteria established in subsection 18.74.030D, BMC of this section; or (3) The subdivider may request that street improvements be guaranteed by the creation of a special improvements district (SID). If a SID is PROOFS Page 772 of 977 formed for the improvements, the SID bonds must be sold before the final plat can be filed. SIDs shall not be permitted for the installation of subdivision water and sewer improvements. Building permits will not be issued until the street improvements are completed and accepted by the city unless otherwise provided for in development proposals occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, Planned Unit Development (PUD), and pursuant to the criteria established in subsection 18.74.030D, BMC of this section. 2. Sidewalks. City standard sidewalks (including a concrete sidewalk section through all private drive approaches) shall be constructed on all public and private street frontages prior to occupancy of any structure on individual lots. Should a subdivider choose not to install all sidewalks prior to final plat, an improvements agreement shall be entered into with the city guaranteeing the completion of all sidewalks within the subdivision within a three-year period. The developer shall supply the city with an acceptable method of security equal to 150 percent of these remaining sidewalk improvements. a. The subdivider shall install sidewalks adjacent to public lands, including, but not limited to, parks, open space, and the intersection of alleys and streets or street casements. Sidewalks in these areas shall be installed prior to final plat approval, or shall be subject to an approved improvements agreement and financially guaranteed. b. Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who has not constructed said sidewalk shall, without further notice, construct within 30 days, said sidewalk for their lot, regardless of whether other improvements have been made upon the lot. 3. Subdivision lighting. Subdivision lighting, as required in section 18.42.150, BMC 38.23.150shall be incorporated into all subdivisions. Prior to final plat approval, subdivision lighting shall be installed or financially guaranteed. If the subdivision lighting is financially guaranteed, they shall be considered as part of the required street improvements and building permits shall not be issued until the improvements are installed, unless otherwise provided for in development proposals occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, Planned Unit Development (PUD), and pursuant to the criteria established in subsection 18.74.030D, BMC of this section. C. Completion time for site development. Whenever any building lots and/or building sites are created inside the city limits, and prior to the issuance of any building permits on such lots or sites, municipal water distribution systems, and municipal sanitary sewer collection systems, and streets shall be provided to the site. Each building site must utilize and be connected to both the municipal water distribution and municipal sanitary sewer collection systems. Subject to the provisions of subsection C.1 of this section, these improvements shall be designed, constructed and installed according to the standards and criteria as adopted by the city and approved by both the city engineer and water and sewer superintendent prior to the issuance of any building permits. 1. Provision of municipal central water distribution, municipal sanitary sewer collection systems, and streets means that the criteria in either subsection a or subsections b and c are met: a. Water, sewer and street services are installed and accepted by the city with service stubs being extended into the site, with such stubs being of adequate PROOFS Page 773 of 977 size to provide water and sewer service to the proposed development without modification to publicly owned infrastructure; or b. The water mains, sewer mains and streets to be extended to provide service to the development are: located within a publicly dedicated right-of-way or casement; constructed to city of Bozeman standards; are physically adjacent to the site proposed for construction; are installed and accepted by the city; and are adequate in capacity to provide necessary service to the proposed development; and comply with the requirements of this subsection C.1.b and subsection C.1.c of this section; c. Water mains, sewer mains and streets shall meet the following requirements: (1) Any required on-site extensions of water mains, sewer mains or streets to be dedicated to the public shall be located entirely within publicly held casements or rights-of-way; shall serve only a single lot; are the subject of an irrevocable offer of dedication to the city upon completion of the project; the development is under the control of a single developer who shall retain control of the entire project until final completion; all work is under the supervision of a single general contractor; and no subdivision of land is involved; (2) The DRC shall determine when the standards of this subsection C.1 are met. The fire department must consider whether adequate fire protection services are available from existing hydrants, and water supply exists to meet needs during construction. If adequate fire protection does not exist then concurrent infrastructure and building construction may only occur under the provisions of subsection C.1.c.(3) of this section. Based on evaluation by the fire department, simultaneous construction of infrastructure to be dedicated to the public and private construction may be permitted only within a defined portion of the site; (3) Approval of the final engineering design, including location and grade, for the infrastructure project must be obtained from the engineering department, and the Montanastate department of environmental quality when applicable, prior to issuance of any building permit for the development; and (4) No occupancy, either temporary or final, may be issued until all on- site and offsite water, sewer and street or drive improvements are installed and accepted or approved as applicable by the city. D. Exception. When municipal water distribution and municipal sanitary sewer collection systems and city streets are being provided to serve a development proposal occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, planned unit development (PUD), the issuance of a building permit may be allowed prior to completion of the public infrastructure, provided that the following criteria are met: 1. The subject property shall be developed under the provisions of chapter 18.36, BMCarticle 20 of this chapter; 2. The subdivider or other developer must enter into an improvements agreement to ensure the installation of required infrastructure and other applicable improvements, to be secured by a financial guarantee in an amount to be determined by the city, with said guarantee to be in the name of the city; PROOFS Page 774 of 977 3. Approval of the final engineering design, including location and grade, for the infrastructure project must be obtained from the engineering department, and the Montanastate department of environmental quality when applicable, prior to issuance of any building permit for the development; 4. Building permits may be issued incrementally, dependent upon the status of installation of the infrastructure improvements. All building construction within the PUD shall cease until required phases of infrastructure improvements as described in the PUD have been completed, and inspected and accepted by the city; 5. The subdivider shall provide and maintain fire hazard and liability insurance which shall name the city as an additional insured and such issuance shall not be cancelled without at least 45 days prior notice to the city. The subdivider shall furnish evidence, satisfactory to the city, of all such policies and the effective dates thereof; 6. The subdivider recognizes, acknowledges and assumes the increased risk of loss because certain public services do not exist at the site; 7. The subdivider shall enter into an agreement with the city which provides for predetermined infrastructure funding options; 8. No occupancy of any structures or commencement of any use constructed or proposed within the boundaries of the PUD will be allowed until required infrastructure improvements have been completed, and inspected and accepted by the city, and a certificate of occupancy has been issued; a. No occupancy of structures or commencement of any use shall occur when such action would constitute a safety hazard in the opinion of the city; 9. The subdivider shall enter into an agreement with the city to address the provision of any services on an interim basis during construction, if deemed appropriate; 10. The subdivider shall execute a hold harmless and indemnification agreement indemnifying, defending and holding harmless the city, its employees, agents and assigns from and against any and all liabilities, loss, claims, causes of action, judgments and damages resulting from or arising out of the issuance of a building permit under this section; 11. The subdivider shall pay for any extraordinary costs associated with the project which the city may identify, including, but not limited to, additional staff hours to oversee the planning, engineering and construction of the project and infrastructure improvements, inspection of the infrastructure improvements and any extraordinary administrative costs; 12. The development shall be under the control of a single developer and all work shall be under the supervision of a single general contractor. The developer and general contractor shall agree that there shall be no third-party builders until required infrastructure improvements have been completed, and inspected and accepted by the city; and 13. Subsequent to preliminary plat approval, a concurrent construction plan, addressing all requirements of this section, shall be submitted for review and approval of the planning director with a recommendation from the development review committee. E. Limitations. Notwithstanding the provisions of subsection D of this section, the city may limit the scope, type and number of projects eligible for simultaneous construction consideration. PROOFS Page 775 of 977 (Ord. No. 1645, § 18.74.030, 8-15-2005; Ord. No. 1693, § 26(18.74.030), 2-20-2007; Ord. No. 1761, exh. O(18.74.030), 7-6-2009; Ord. No. 1769, exh. O(18.74.030), 12-28-2009) Sec. 38.39.040. Special provisions for timing of certain improvements. A. Park, pathway, and boulevard improvements. 1. These required improvements shall be installed, or subject to an approved improvements agreement and financially guaranteed, prior to final plat approval or occupancy of a building subject to development review, excluding sketch plans. 2. Due to seasonal considerations, building and occupancy permits may be issued prior to installation of these improvements as long as the improvements are subject to an approved improvements agreement and are financially guaranteed. B. Neighborhood center improvements. 1. With the exception of neighborhood commercial and civic buildings and their grounds, neighborhood center improvements shall be installed, or subject to an approved improvements agreement and financially guaranteed, prior to final plat approval. 2. Due to seasonal considerations, building and occupancy permits may be issued prior to installation of improvements related to greens, plazas and squares as long as the improvements are subject to an approved improvements agreement and are financially guaranteed. (Ord. No. 1645, § 18.74.040, 8-15-2005; Ord. No. 1693, § 26(18.74.040), 2-20-2007; Ord. No. 1761, exh. O(18.74.040), 7-6-2009; Ord. No. 1769, exh. O(18.74.040), 12-28-2009) Sec. 38.39.050. Acceptance of improvements. A. Improvements dedicated to the public. 1. Acceptance of street, road, and bridge improvements. Before any subdivision street, whether new or existing, can be accepted into the city street system by the city, it shall be built to meet or exceed the required standards. Any improvements made to county roads shall meet or exceed standards set by the county road office, and must be reviewed and approved by the county road office. Any bridge improvement, within the city or the county, shall meet or exceed standards set by the Montanastate department of transportation, and must be reviewed and approved by the county road office and the city, and accepted by the county road office into the county's bridge maintenance system. 2. Acceptance of park, water, sewer, and storm drainage improvements. Before any public park, water, sewer or storm drainage improvement, whether new or existing, can be accepted into the city system by the city, it shall be built to meet or exceed the required standards. Any improvement, within the city or county, shall meet or exceed standards set by the city, Montanastate department of environmental quality and county road office, and must be reviewed and approved by the city and the county road office, as applicable. 3. As-built record drawings. As-built record drawings of all public infrastructure improvements constructed within the city, drawn to the specifications required by the city, shall be submitted prior to final plat approval, per section 24.183.1107338 8.94.3003(3.g), ARM, or other relevant final benchmark for site development. 338 Note rule transfer. Ok. PROOFS Page 776 of 977 4. The city may require verification that all liens have been released and payments made prior to accepting dedication of improvements. B. Private improvements. The DRC and/or ADR or their representative shall conduct an "as-built" inspection to verify compliance and shall sign off on a certificate of occupancy, final plat or other conclusory action if all terms and details of the approval are complied with. Except as provided for in section 18.74.06038.39.060, no final plat approval or occupancy shall be permitted, or certificate of occupancy issued, unless the terms and details of an approved plat, site or sketch plan are met. Prior to grant of occupancy, the developer shall certify the completion of the improvements as required in section 18.74.03038.39.030.A, BMC. (Ord. No. 1645, § 18.74.050, 8-15-2005; Ord. No. 1693, § 26(18.74.050), 2-20-2007; Ord. No. 1761, exh. O(18.74.050), 7-6-2009; Ord. No. 1769, exh. O(18.74.050), 12-28-2009) Sec. 38.39.060. Improvements agreements. A. Required when. 1. When occupancy of a development subject to zoning review will commence prior to completion of all required site improvements, generally excluding sketch plans; or 2. When a subdivision is to be granted final plat approval prior to the completion of all required improvements, the applicant shall enter into an improvements agreement with the city. 3. At the discretion of the planning director, certain projects receiving a certificate of appropriateness may be required to enter into an improvements agreement with the city at the time of final approval of the certificate of appropriateness. B. If an improvements agreement is used to guarantee the completion of required improvements, including infrastructure, it may allow for the staged installation of improvements in defined areas and in accordance with an approved time schedule. At the city's discretion, the improvements in a prior increment may be required to be completed or the payment or guarantee of payment for costs of the improvements incurred in a prior increment must be satisfied before development of future increments. 1. If an improvements agreement is filed with the final subdivision plat to secure infrastructure improvements, a separate document shall be filed with the final plat that clearly states that building permits will not be issued until all water, sewer, storm drainage infrastructure and streets are installed and accepted. This requirement may be modified by the city engineer for streets where dictated by circumstances, and where acceptable improvement security for the ultimate development of the streets is provided. However, under no circumstances shall be required gravel courses, curbs or gutters be waived. This requirement shall generally not be modified for nonresidential developments. No building permits will be issued for a subdivision within the city until all required water, sewer, storm drainage, required street lighting, and street gravel courses are installed and accepted unless otherwise provided for in development proposals occurring under the provisions of chapter 18.36, BMCarticle 20 of this chapter, Planned Unit Development (PUD), and pursuant to the criteria established in section 18.74.03038.39.030.D, BMC. C. Standards for improvements agreements. 1. All agreements. All improvements agreements shall meet the following standards: a. The agreement and security shall be satisfactory to the city attorney as to form and manner of execution; PROOFS Page 777 of 977 b. Detailed cost estimates and construction plans of all required on-site and off- site improvements shall be made a part of the agreement; c. Provide for security in the amount equal to 150 percent of the estimated cost of the improvements to be secured if the agreement is to be activated; d. The term for the security referenced in subsection C.1.c of this section shall be not less than the length of time of the improvements agreement; e. The agreement shall provide for the city to claim the guarantee by certifying that the developer is in default of the performance to be secured; f. Requests for partial release of security shall only be in amounts such that the security will always equal 150 percent of the value of the remaining uncompleted work, and such that not more than 90 percent of the security is released prior to completion of all improvements. The city may take into account the location and scope of development phases in evaluating requests to reduce the amount of a financial guarantee. The city may require verification that all liens have been released and payments made prior to releasing a portion of the security; g. Shall provide for the city to require a replacement security in the event the issuer of the security becomes insolvent, enters receivership, or otherwise gives cause for the city to lack confidence in the ability of the issuer to honor the security; h. Shall permit the city in the event of default by the developer to include in the costs to be recovered from the security those costs resulting from the need to call in the security, including but not limited to costs for the city attorney's time; and i. The financial security shall be placed in the keeping of the city treasurer. 2. Subdivisions. Improvements agreements for subdivisions shall meet the following standards in addition to those listed in subsection C.1 of this section: a. The length of time of the agreement shall not exceed one year from the date of final plat approval. The agreement shall stipulate the time schedule the subdivider proposes for accomplishing the required improvements; b. The estimated cost of improvements shall be provided by the subdivider's professional engineer. The city engineer has the discretion to require a second estimate of the cost of improvements, with the cost of obtaining the second estimate borne by the subdivider. The agreement shall stipulate which type of security arrangements will be used; c. Security for improvements for internal subdivision streets, water, storm drainage and sewer mains, shall be reduced only upon recommendation of the city engineer; d. Security for improvements other than internal subdivision streets, water, storm drainage and sewer mains, shall be reduced only upon recommendation of the city engineer and approval by the city commission, upon request by the subdivider; e. The improvements agreement shall be filed with the final plat; and f. The security provided shall be a financial security valid for 18 months. 3. Site development. Improvements agreements for developments other than PROOFS Page 778 of 977 subdivisions shall meet the following standards in addition to those listed in subsection C.1 of this section: a. If occupancy of the structure or commencement of the use is to occur prior to installation of the required improvements, the installation of those improvements must be secured in conformance with the requirements of this chapterarticle; b. The length of time of the agreement and method of security shall not be less than 12 months; c. All secured improvements must be completed by the developer within nine months of occupancy or the security shall be forfeited to the city for the purpose of installing or contracting for the installation of the required improvements; d. At the planning director's discretion, a developer may be permitted to extend the manner of security, in general for a period not to exceed one additional year. Factors such as, but not limited to, progress of installation achieved to date and phasing of projects may be considered; e. The DRC and/or ADR shall determine which, if any, of the required improvements must be installed prior to occupancy, regardless of the use of a secured improvements agreement. Such determination shall be based on a finding that unsafe or hazardous conditions will be created or perpetuated without the installation of certain improvements or that the property will have an unacceptable adverse impact on adjoining properties until such improvements are installed; (1) Items include but are not limited to walkways and signage necessary for ADA compliance, parking surfaces adequate to meet the needs of the uses to be conducted during the term of the improvements agreement, or matters related to life safety are required to be installed prior to any occupancy; and f. When all provisions are met for occupancy of a facility or commencement of a use prior to the installation of all improvements, and adequate security has been provided in accordance with the terms of an improvements agreement, the building official may issue a temporary certificate of occupancy which allows occupancy of the facility on a temporary basis for a period not to exceed nine months. When all required improvements are installed in compliance with all terms and details of the site or sketch plan approval, the temporary occupancy permit shall be withdrawn and a permanent certificate of occupancy shall be issued according to the provisions of this chapterarticle. D. Notwithstanding the provisions of this section, the city may limit the scope, type and number of improvements eligible for being secured by an improvements agreement and require installation prior to final plat approval, issuance of building permits, occupancy or other similar actions. E. The planning director shall be responsible to sign improvements agreements on behalf of the city. F. When an improvements agreement is used to allow the filing of a final plat prior to the completion of infrastructure, a notice of improvements agreement shall be recorded along with the plat which indicates that certain infrastructure work is still not complete and identifying that work. When the work has been completed and is accepted by the city as complete, the city shall PROOFS Page 779 of 977 record a notice of completion stating that the work that was the subject of the improvements agreement is complete. (Ord. No. 1645, § 18.74.060, 8-15-2005; Ord. No. 1693, § 26(18.74.060), 2-20-2007; Ord. No. 1761, exh. O(18.74.060), 7-6-2009; Ord. No. 1769, exh. O(18.74.060), 12-28-2009) Sec. 38.39.070. Payment for extension of capital facilities. The city may require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of extending capital facilities related to public health and safety, including but not limited to public roads or streets, sewer mains, water supply mains and stormwater facilities for a subdivision. The costs must reasonably reflect the expected impacts directly attributable to the subdivision. The city may not require a subdivider or other site developer to pay or guarantee payment for part or all of the costs of constructing or extending capital facilities related to education. (Ord. No. 1645, § 18.74.070, 8-15-2005; Ord. No. 1693, § 26(18.74.070), 2-20-2007; Ord. No. 1761, exh. O(18.74.070), 7-6-2009; Ord. No. 1769, exh. O(18.74.070), 12-28-2009) Sec. 38.39.080. Types of acceptable securities. A. Financial securities. A variety of means of providing for the security of improvements agreements, ensuring adequate maintenance of required improvements and ensuring compliance with conditions of approval for various developments may be allowed. One or more of the following instruments may be used to provide a financial security for improvements to be completed. The method, terms and amount of security must be acceptable to the city. Financial security is the primary method to provide security for installation of physical improvements. 1. Direct payment of cash to the city; 2. Irrevocable letters of credit; 3. Cash escrows held by the city, or held by an approved escrow agent and subject to an executed escrow agreement; or 4. Performance bonds, in limited circumstances and subject to approval by the city attorney. B. Nonfinancial securities. In addition to the possible financial securities listed above, the following nonfinancial securities may be used to ensure compliance with conditions of approval, ensure maintenance of required improvements and coordinate timing of development. When deemed appropriate, the city may use nonfinancial security methods in combination with a financial security method. 1. Granting of final permits; 2. Sequential approval of multiphased projects, with subsequent phases to not receive approval until prior approved phases have complied with all requirements; 3. Formation of a special improvement or maintenance district. This method shall not be considered completed until after all final actions have occurred and the district is in existence and the bonds sold; 4. Establishment of a property owners association with city enforceable duties to maintain certain improvements; 5. Irrevocable offer of dedication of improvements to be dedicated to the public after completion of the project; and 6. Recording of a special restrictive covenant or deed restriction which may only be released by written agreement of the city. PROOFS Page 780 of 977 (Ord. No. 1645, § 18.74.080, 8-15-2005; Ord. No. 1693, § 26(18.74.080), 2-20-2007; Ord. No. 1761, exh. O(18.74.080), 7-6-2009; Ord. No. 1769, exh. O(18.74.080), 12-28-2009) Sec. 38.39.090. Development or maintenance of common areas and facilities by developer or property owners' association. A. General. For the purposes of this section, "common areas and facilities" include: 1. Public and/or private park land; 2. Boulevard strips in public rights-of-way along external subdivision streets and adjacent to parks and/or open space; 3. Common open space; 4. Neighborhood centers (except for neighborhood commercial and civic uses and their grounds); and 5. Pathways. B. Development. If common areas or facilities will be developed by the subdivider or by a property owners association, a development plan shall be submitted with the preliminary plat application for review and approval. The development plan shall be reviewed and approved by the city prior to the installation of improvements in common areas or the installation of common facilities. An approved park master plan would satisfy this requirement. 1. Landscaping. When landscaping will be installed in park land, boulevard strips or common open space, the development plan shall be accompanied by a landscaping plan that was prepared by a qualified landscaping professional. When landscaping in common areas is installed by the subdivider, the subdivider shall warrant against defects in these improvements for a period of two years from the date of installation of the landscaping. When landscaping in a park is installed by the subdivider, the subdivider shall comply with the Parks Design Standards and warrant against defects in these improvements for a period of two years from the date of installation of the landscaping. 2. Tree permits. If trees will be planted in dedicated city park land or boulevard strips, tree planting permits shall be obtained from the forestry department. C. Maintenance. When common areas or facilities will be maintained by the subdivider or by a property owners association, a maintenance plan that complies with section §18.72.040 38.39.030339 BMC shall be submitted with the preliminary plat application for review and approval. The maintenance plan shall include a maintenance schedule, and a mechanism to assess and enforce the common expenses for the common area or facility. The maintenance plan shall be included in the subdivision covenants. The developer shall provide all necessary maintenance until the improvements are transferred to a property owners association, or other final custodian. Maintenance shall be provided by the property owners association for parks until the city shall establish a park maintenance district or other dedicated funding source and affirmatively accept responsibility for maintenance. The provisions of section 18.72.040.B 38.38.030.A.8340, BMC apply to this section. 1. Landscaping warranty. Any required or proposed landscaping must be maintained 339 Unable to find and convert internal cite. Please provide correct cite and we will update. Please change the citation to 38.37.030. (Now 38.39.030 due to section renumbering) 340 Unable to find and convert internal cite. Please provide correct cite and we will update. Please change the citation to 38.37.030.H. PROOFS Page 781 of 977 in a healthy, growing condition at all times. Any plant that dies must be replaced with another living plant that complies with the approved landscape plan. 2. Shade tree maintenance. The forestry department shall be responsible for the maintenance of shade trees in all city rights-of-way and on city property, including parks. (Ord. No. 1645, § 18.90.090, 8-15-2005; Ord. No. 1693, § 26(18.74.090), 2-20-2007; Ord. No. 1761, exh. O(18.74.090), 7-6-2009; Ord. No. 1769, exh. O(18.74.090), 12-28-2009) Sec. 38.39.100. Warranty. All publicly dedicated improvements shall be subject to a warranty of duration and scope to meet the city's design standards and specifications manual and/or park design standards as applicable. (Ord. No. 1645, § 18.74.100, 8-15-2005; Ord. No. 1693, § 26(18.74.100), 2-20-2007; Ord. No. 1761, exh. O(18.74.100), 7-6-2009; Ord. No. 1769, exh. O(18.74.100), 12-28-2009) CHAPTER 18.76. NOTICING ARTICLE 40. NOTICING Sec. 38.40.010. Purpose. It is the intent of this chapterarticle to provide for adequate notice of governmental actions to those affected by such actions. Notice is required in order for citizens to participate in decision making which affects their interests and provides opportunity to receive information pertinent to an application that would not otherwise be available to the decision maker. In establishing standards for providing such notice, the need for expeditious processing of applications is also recognized. (Ord. No. 1645, § 18.76.010, 8-15-2005; Ord. No. 1693, § 27(18.76.010), 2-20-2007; Ord. No. 1761, exh. P(18.76.010), 7-6-2009) Sec. 38.40.020. Contents of notice. A. The following elements shall be included in notices issued pursuant to this chaptertitle: 1. Address of the property, or its location by approximate distances from the nearest major street intersections, or other description to identify the affected property; 2. Legal description of the property; 3. The name and address of the applicant; 4. The name and address of the owner of record; 5. The number, date, time and place of all relevant scheduled public hearings by the city commission, board of adjustment, planning board or zoning commission, meetings of other review bodies established by this chaptertitle at which final decisions shall be made, or the date of any final public comment deadline; 6. A description of how and where additional information regarding the action may be obtained including the address and phone number of the city; and 7. A brief description of the subject of the notice. B. The following additional elements shall be included in notices required for site plans, master site plans, certificates of appropriateness, conditional use permits, planned unit developments, deviations, variances and subdivisions: PROOFS Page 782 of 977 1. A map of the area in question so as to indicate its general location and proximity to surrounding properties shall be included in mailed and posted notices; and 2. A reference to the appeals process for this chaptertitle for notices regarding projects where the board of adjustment or city commission will not be making the final decision. C. The following additional elements shall be included in all notices required for text amendments to this chaptertitle: 1. A summary explanation of the intent of the change, with reference to the exact text being available for public review. D. For site and subdivision developments, the applicant shall provide for the purposes of noticing a list of names and addresses of property owners within 200 feet of the site, using the most current known property owners of record as shown in the records of the county clerk and recorder’s office and stamped, unsealed envelopes (with no return address) addressed with names of above property owners, and/or labels with the names of the above property owners, as specified on the appropriate application. (Ord. No. 1645, § 18.76.020, 8-15-2005; Ord. No. 1670, § 18.76.020, 8-28-2006; Ord. No. 1693, § 27(18.76.020), 2-20-2007; Ord. No. 1761, exh. P(18.76.020), 7-6-2009) Sec. 38.40.030. Notice requirements for application processing. A. The following minimum standards for timing, location of noticing area and type of notice shall be provided. Noticing provisions are cumulative with the maximum combination of noticing requirements being provided. When more than one newspaper notice is required, only one of the required publication dates must fall within the minimum and maximum days required. B. If for some reason a required property owner fails to receive mail notification of a scheduled public hearing, or if one or more of the required posted signs in the area or on the site for which the public hearing is being held is inadvertently moved through no fault of the city, this in no way shall invalidate the legal notice requirements of the scheduled public hearing. C. Notice may also be provided to property owners in any additional area that may be substantially impacted by the proposed change or use as determined by the planning director. The planning director may use other means in addition to posting, mailing, or publication to provide notice. Table 39-1 38.40.030 Application Minimum Days12 Maximum Days12 Distance1 Notice Type Text amendment 15 45 NA Newspaper once ZMA2 15 45 200 Newspaper once, post on- site, mail 1st class ZMA2- Resulting from ordinance changes 15 45 None Newspaper once ZMA2- Annexation w/ initial zoning 15 45 None Newspaper once, post on- site, mail 1st class Variance - Floodplain, zoning, and subdivision 15 45 200 Newspaper once (zoning 2 times), post on-site, mail 1st class PROOFS Page 783 of 977 Application Minimum Days12 Maximum Days12 Distance1 Notice Type Public agency exemption 15 45 None Newspaper 2 times, post on-site Deviation 15 45 200 Newspaper 2 times, post on-site, mail 1st class Appeals3 15 45 2003 Newspaper 2 times, post on-site, mail 1st class Sketch plan/reuse/change in use/further development None None None None Sketch plan4 15 45 None Post on-site Informal/concept plan None None None None Preliminary site plan or master site plan 15 45 200 Post on-site, mail 1st class Preliminary PUD5 15 45 200 Newspaper 2 times, post on-site, mail 1st class Preliminary CUP6 15 45 200 Newspaper 2 times, post on-site, mail 1st class Floodplain permit 15 45 200 Newspaper, mail 1st class COA7 None None None None Final site plan None None None None Final PUD plan None None None None Final CUP plan None None None None Subdivision exemption None None None None 1st minor subdivision without variance- preliminary plat 15 45 200 Mail 1st class 1st minor subdivision with variance/2nd minor/major subdivision - Preliminary plat 15 (Planning Board) 45(Commission)200 Newspaper8, post on-site, mail 1st class9, certified mail10 Final plat None None None None Notice of violation11 15 45 None Post on-site, certified mail to landowner 1The distance from the exterior property boundary of the site to all or part of another parcel of land whose owners must be notified of a governmental action. This distance includes the width of a right-of-way or other public ownership. 2Zone map amendment, chapterarticle 18.70, BMC37 of this chapter. 3Posting and mailing only applies to appeals taken from actions to approve, approve with conditions or deny a development proposal and not to appeals of administrative interpretations. 4Sketch plans for adding dwellings in the neighborhood conservation overlay district, demolition of contributing structures in the neighborhood conservation overlay district, or modification of wetlands. PROOFS Page 784 of 977 5Planned unit development, chapter 18.36, BMCarticle 20 of this chapter. 6Conditional use permit, Chapterarticle 18.34, BMC19 of this chapter. 7Certificate of appropriateness, Chaptersarticles 18.2816 and 18.30, BMC17 of this chapter. 8When newspaper notice is required the notice shall be published in a newspaper of general circulation. 9Mail by first class to all landowners within 200 feet except those subject to certified mail. 10Certified mail must be sent to recorded purchasers under contract for deed in addition to owners of physically contiguous property and the subdivider. 11 Notices of violation subject to §18.64.150section 38.34.160, BMC.341 12 Days prior to the close of the public comment period or public hearing unless otherwise specified in this chaptertitle. (Ord. No. 1645, § 18.76.030, 8-15-2005; Ord. No. 1670, § 18.76.030, 8-28-2006; Ord. No. 1761, exh. P(18.76.030), 7-6-2009) Sec. 38.40.040. Notice of city approval within neighborhood conservation and entryway overlay districts. In order to inform adjacent property owners and residents that an application within an overlay district has been approved by the city, any site approved for construction or alterations within an overlay district shall be posted with a notice supplied by the planning department. The notice shall be posted in a conspicuous place on the site before any construction begins and may be removed when the project is substantially complete. The notice shall specify the name of the owner of record, the address of the property, a description of the scope of work approved and the date of city approval. (Ord. No. 1645, § 18.76.040, 8-15-2005; Ord. No. 1693, § 27(18.76.040), 2-20-2007; Ord. No. 1761, exh. P(18.76.040), 7-6-2009) Chapter ARTICLE 41. SUBMITTAL MATERIALS AND REQUIREMENTS Sec. 38.41.010. General. All applications and supplemental material, including all copies of plats and site development plans, shall be bound and folded into complete 8½- by 11-inch or 8½- by 14-inch sets ready for distribution. All plats shall be on one or more sheets either 18- by 24-inches or 24- by 36-inches in size, and shall be folded and included in the bound submittal. A digital (PDF) copy of the entire submittal (applications, supplemental material, plat and plans) shall be provided as required. (Ord. No. 1645, § 18.78.010, 8-15-2005; Ord. No. 1693, § 28(18.78.010), 2-20-2007; Ord. No. 1709, § 15(18.78.010), 7-16-2007; Ord. No. 1761, exh. Q(18.78.010), 7-6-2009) Sec. 38.41.020. Streambed, streambank and/or wetlands permits. A. The developer shall provide the planning department with a copy of all required streambed, streambank or wetlands permits, or written notification from the appropriate agency that a permit is not required, prior to the commencement of any work on the site and/or final plat approval, whichever is sooner. These permits include but are not limited to: 341 Please check that this internal cite is correct, and notify us of any changes. The internal citation is correct. PROOFS Page 785 of 977 1. Montana Stream Protection Act (SPA 124 Permit). Administered by the Habitat Protection Bureau, Fisheries Division, Montana Fish, Wildlife and Parks. 2. Stormwater discharge general permit. Administered by the water quality bureau, Montanastate department of environmental quality. 3. Montana Natural Streambed and Land Preservation Act (310 Permit). Administered by the board of supervisors, Gallatincounty conservation district. 4. Montana Floodplain and Floodway Management Act (Floodplain Development Permit). Administered by the city engineering department. 5. Federal Clean Water Act (404 Permit). Administered by the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. 6. Federal Rivers and Harbors Act (Section 10 Permit). Administered by the U.S. Army Corps of Engineers. 7. Short-term Water Quality Standard for Turbidity (318 Authorization). Administered by Montanastate department of environmental quality. 8. Montana Land-Use License or Easement on Navigable Waters. Administered by the Montanastate department of natural resources and conservation. 9. Montana Water Use Act (Water Right Permit and Change Authorization). Administered by the water rights bureau, Montanastate department of natural resources and conservation. (Ord. No. 1645, § 18.78.020, 8-15-2005; Ord. No. 1693, § 28(18.78.020), 2-20-2007; Ord. No. 1709, § 15(18.78.020), 7-16-2007; Ord. No. 1761, exh. Q(18.78.020), 7-6-2009) Sec. 38.41.030. Subdivision preapplication plan. A. The preapplication plan may be a freehand sketch, legibly drawn, showing approximate boundaries, dimensions, areas and distances. The plan may be drawn directly on a print of a topographic survey required for the preliminary plat and shall include: 1. Sketch map. A sketch map showing: a. The names of adjoining subdivisions and numbers of adjoining certificates of survey, along with adjacent lot and tract lines. b. Location, name, width and owner of existing or proposed streets, roads and easements within the proposed subdivision; existing streets, roads and easements within adjacent subdivisions and tracts; and the name of street or road that provides access from the nearest public street or road to the proposed subdivision. c. Location of all existing structures, including buildings, railroads, powerlines towers, and improvements inside and within 100 feet of the proposed subdivision. d. Zoning classification within the proposed subdivision and adjacent to it. The zoning proposed for the subdivision, if a change is contemplated. 2. Topographic features. Topographic features of the proposed subdivision and adjacent subdivisions and tracts, including: a. A current U.S. Geological Survey topographic map at the largest scale available with the subdivision clearly outlined. b. Embankments, watercourses, drainage channels, areas of seasonal water ponding, areas within the designated floodway, marsh areas, wetlands, rock PROOFS Page 786 of 977 outcrops, wooded areas, noxious weeds and areas of active faults. Include copies of any permits listed in section 18.78.020, BMC38.41.020 that have been obtained for the project. 3. Utilities. The existing and proposed utilities located on and adjacent to the proposed subdivision including: a. Location, size and depth of sanitary and storm sewers, water mains and gas lines. b. Location of fire hydrants, electric lines, telephone lines, sewage and water treatment, and storage facilities. 4. Subdivision layout. The proposed layout of the subdivision showing the approximate: a. Subdivision block, tract, and lot boundary lines, with numbers, dimensions, and areas for each block, tract and lot. b. Street location, right-of-way width, and name. c. Easement location, width and purpose. d. Sites to be dedicated or reserved as park, common open space or other public areas, with boundaries, dimensions and areas. e. Sites for commercial centers, churches, schools, industrial areas, condominiums, manufactured housing community and uses other than single-household residences. 5. Development plan. An overall development plan indicating future development of the remainder of the tract, if the tract is to be developed in phases. 6. Name and location. A title block indicating the proposed name, quarter-section, section, township, range, principal meridian and county of subdivision. 7. Notations. Scale, north arrow, name and addresses of owners and developers, and date of preparation. 8. Variances. A list of variance requests which will be submitted with the application for preliminary plat application. 9. Waivers. List of waivers requested from the requirements of section 18.78.060, BMC38.41.060 shall be submitted with the preapplication. The DRC shall be responsible for granting waivers, and the planning department staff shall notify the developer in writing of any waivers granted from §18.78.060section 38.41.060, BMC after the preapplication meeting or plan review. 10. Parks and recreation facilities. The following information shall be provided for all land proposed to meet park land dedication requirements: a. Park concept plan, including: (1) Site plan for the entire property; (2) The zoning and ownership for adjacent properties; (3) The location of any critical lands (wetlands, riparian areas, streams, etc.); (4) General description of land, including size, terrain, details of location and history, and proposed activities; and (5) Description of trails or other recreational features proposed to connect the proposed park area to other park or open space areas. PROOFS Page 787 of 977 11. Digital (PDF) copy of entire submittal. 12. Affordable housing. Describe how the subdivision proposes to satisfy the requirements of Title 17 Chapter 2, BMC chapter 10, article 8. (Ord. No. 1645, § 18.78.030, 8-15-2005; Ord. No. 1693, § 28(18.78.030), 2-20-2007; Ord. No. 1709, § 15(18.78.030), 7-16-2007; Ord. No. 1761, exh. Q(18.78.030), 7-6-2009) Sec. 38.41.040. Subdivision preliminary plat. A. The preliminary plat shall be legibly drawn at a horizontal scale no smaller than 100 feet to the inch, and may show approximate boundaries, dimensions, distances and areas, unless specifically noted. The plat shall be on one or more sheets of 18- by 24-inch or 24- by 36-inch paper. Where accurate information is required, surveying and engineering data shall be prepared under the supervision of a registered engineer or registered land surveyor, licensed in the state of Montana, as their respective licensing laws allow. The plat submittal shall include the following: 1. Preapplication information. All information required with the preapplication plan, as outlined in section 18.78.030, BMC38.41.030. 2. Subdivision information. Name and location of the subdivision, scale, scale bar, north arrow, date of preparation, lots and blocks (designated by number), the dimensions and area of each lot, and the use of each lot, if other than for single- household. 3. Streets, roads and grades. All streets, roads, alleys, avenues, highways and easements; the width of the right-of-way, grades and curvature of each; existing and proposed road and street names; and proposed location of intersections for any subdivision requiring access to arterial or collector streets. 4. Adjoining subdivisions. The names of adjoining platted subdivisions and numbers of adjoining certificates of survey. 5. Adjoining owners. Names and addresses of record owners of lots and tracts immediately adjoining the proposed subdivision. 6. Perimeter survey. An approximate survey of the exterior boundaries of the platted tract with bearings, distances, and curve data indicated outside of the boundary lines. When the plat is bounded by an irregular shoreline or a body of water, the bearings and distances of a closing meander traverse shall be given. 7. Section corner. The approximate location of all section corners or legal subdivision corners of sections pertinent to the subdivision boundary. 8. Phased improvements. If the improvements required are to be completed in phases after the final plat is filed, the approximate area of each phase shall be shown on the plat. 9. Contours. Ground contours shall be provided for the tract according to the following requirements: Table 40-1 38.41.040 Where the average slope is: Contour intervals shall be: Under 10 percent 2 feet (if all lots are over one acre in size, five feet intervals may be used) Between 10 and 15 percent 5 feet Greater than 15 percent 10 feet PROOFS Page 788 of 977 10. Waivers. List of waivers granted from the requirements of section 18.78.070, BMC38.41.060 during the preapplication process shall be submitted with the preliminary plat application. 11. Request for exemption from department of environmental quality review. If the developer is proposing to request an exemption from the department of environmental quality for infrastructure plan and specification review, the preliminary plat application shall include a written request from the developer’s professional engineer, licensed in the state of Montana, that indicates the intent to request the exemption, and details the extent of water, sewer and stormwater infrastructure that will be completed prior to final plat approval. A detailed preliminary stormwater drainage plan must also be submitted with the written request. (Ord. No. 1645, § 18.78.040, 8-15-2005; Ord. No. 1693, § 28(18.78.040), 2-20-2007; Ord. No. 1709, § 15(18.78.040), 7-16-2007; Ord. No. 1761, exh. Q(18.78.040), 7-6-2009) Sec. 38.41.050. Preliminary plat supplements required for all subdivisions. A. The following supplemental information shall be submitted with the preliminary plat. 1. Area map. A map showing all adjacent sections of land, subdivision, certificates of survey, streets and roads. 2. Subdivision map. Map of entire subdivision on an 8½-by-11-inch, 8½-by-14-inch, or 11-by-17-inch sheet. 3. Variances. A written statement describing any requested subdivision variance and the facts of hardship upon which the request is based (refer to Chapter18.66, BMCarticle 35 of this chapter). 4. Property owners. A certified list of adjoining property owners, their mailing addresses and property description, including property owners across public rights- of-way and/or easements. The names and addresses shall also be provided on self- adhesive mailing labels, one set of labels for first minor subdivisions or subdivisions eligible for summary review, and three sets of labels for all other subdivisions. 5. Documents and certificates. Draft copy of the following documents, and certificates to be printed on or to accompany the preliminary plat: a. Covenants, restrictions and articles of incorporation for the property owners association. b. Encroachment permits or a letter indicating intention to issue a permit where new streets, easements, rights-of-way or driveways intersect state, county or city highways, streets or roads. c. A letter of approval or preliminary approval from the city where a zoning change is necessary. d. A draft of such other appropriate certificates. e. Provision for maintenance of all streets (including emergency access), parks, and other required improvements if not dedicated to the public, or if private. 6. Street profile sheets. Profile sheets for street grades greater than five percent. 7. Application and fee. Completed preliminary plat application form, with the original signatures of all owners of record or their authorized representatives, and the required review fee. If an authorized representative signs on behalf of an owner of PROOFS Page 789 of 977 record, a copy of the authorization shall be provided. 8. Noxious weed management and revegetation plan. Noxious weeds shall be controlled in all developments as directed by the county weed control district (district) in accordance with the Montana County Noxious Weed Control Act (MCA 7-22-21). The developer shall have any noxious weeds identified and their location mapped by a person with experience in weed management and knowledgeable in weed identification. A noxious weed management and revegetation plan approved by the district for control of noxious weeds shall be submitted with the preliminary plat application. This plan shall ensure the control of noxious weeds upon preliminary plat approval and the revegetation of any land disturbed during the construction of subdivision improvements. 9. Sanitation information. When the subdivision does not qualify for the certification established in section 18.06.050, BMC,38.03.050 the subdivider shall provide the information regarding sanitation set forth in MCA 76-3-622. (Ord. No. 1645, § 18.78.050, 8-15-2005; Ord. No. 1693, § 28(18.78.050), 2-20-2007; Ord. No. 1709, § 15(18.78.050), 7-16-2007; Ord. No. 1761, exh. Q(18.78.050), 7-6-2009) Sec. 38.41.060. Additional subdivision preliminary plat supplements. A. The following list of preliminary plat application supplements in subsection B of this section shall also be provided for all subdivisions unless waived by the development review committee during the preapplication process. The developer shall include documentation of any waivers granted by the city after the preapplication meeting or plan review. Additional relevant and reasonable information may be required to adequately assess whether the proposed subdivision complies with this chaptertitle and the Montana Subdivision and Platting Act. The need for additional information shall be determined during the preapplication process. 1. Surface water. a. Mapping. Locate on a plat overlay or sketch map all surface waters and the delineated floodplain which may affect or be affected by the proposed subdivision including: (1) Natural water systems such as natural streams, creeks, stream/ditches, drainages, waterways, gullies, ravines or washes in which water flows either continuously or intermittently and has a definite channel, bed and banks. (2) Artificial water systems such as canals, ditches, ditch/streams, aqueducts, reservoirs, irrigation or drainage systems. b. Description. (1) Describe all surface waters which may affect or be affected by the proposed subdivision including name, approximate size, present use and time of year when water is present. (2) Describe proximity of proposed construction (such as buildings, sewer systems, streets) to surface waters. c. Water body alteration. Describe any existing or proposed streambank or shoreline alterations or any proposed construction or modification of lake beds, watercourses or irrigation ditches. Provide information on location, extent, type and purpose of alteration. Provide a revised floodplain analysis report, in compliance with Chapter18.58, BMCarticle 31 of this chapter, as appropriate. PROOFS Page 790 of 977 d. Wetlands. If the subdivision contains wetlands, as defined in chapterarticle 18.8042 of this chaptertitle, then a delineation of the wetland shall be shown on the preliminary and final plats. e. Permits. Include copies of any permits listed in section 18.78.020, BMC38.41.020 that have been obtained for the project. 2. Floodplains. A floodplain analysis report shall be submitted with the preliminary plat in compliance with Chapterarticle 18.5831 of this chaptertitle. 3. Groundwater. a. Depth. Establish the seasonal minimum and maximum depth to the water table, dates on which these depths were determined, and the location and depth of all known aquifers which may be affected by the proposed subdivision. The high water table shall be determined from tests taken during the period of major concern as specified in writing by the county environmental health department. Specific locations for test holes may also be determined by the county environmental health department. b. Steps to avoid degradation. Describe any steps necessary to avoid the degradation of groundwater and groundwater recharge areas. 4. Geology; soils; slopes. a. Geologic hazards. Identify geologic hazards affecting the proposed subdivision which could result in property damage or personal injury due to rock falls or slides; landslides, mud or snow; surface subsidence (i.e., settling or sinking); or seismic activity. b. Protective measures. Explain what measures will be taken to prevent or materially lessen the danger of future property damage or injury due to any of the hazards referred to above in subsection A.4.a of this section. c. Unusual features. Provide a statement describing any unusual soil, topographic or geologic conditions on the property which limit the capability for building or excavation using ordinary and reasonable construction techniques. The statement should address conditions such as shallow bedrock, high water table, unstable or expansive soil conditions, and slope. On a map, identify any slopes in excess of 15 percent grade. d. Soils map. The subdivision shall be overlaid on the Gallatin county soil survey maps obtained from the Natural Resource and Conservation Service (NRCS). The maps are 1:24,000 in scale. These maps may be copied without permission. However, enlargement of these maps could cause misunderstanding of the detail of mapping. Soils were mapped using a minimum delineation of five acres, and these soils reports were intended to alert developers to possible problems and the need for a more detailed on-site investigation. The developer shall provide the following soil reports, which can be obtained from the NRCS: (1) The physical properties and engineering indexes for each soil type; (2) Soil limitations for building and site development, and water features for each soil type; (3) Hydric soils report for each soil type. If hydric soils are present, the developer shall provide a wetlands investigation by a certified consultant, using the Federal Manual for Identifying and Delineating PROOFS Page 791 of 977 Jurisdictional Wetlands (January 1987); and (4) The developer shall provide any special design methods planned to overcome the above limitations. e. Cuts and fills. Describe the location and amount of any cut or fill three or more feet in depth. These cuts and fills should be indicated on a plat overlay or sketch map. Where cuts or fills are necessary, describe any plans to prevent erosion and to promote revegetation such as replacement of topsoil and grading. 5. Vegetation. a. Vegetation map. On a plat overlay or sketch map: (1) Indicate the distribution of the major vegetation types such as marsh, grassland, shrub, coniferous forest, deciduous forest or mixed forest. (2) Identify critical plant communities such as stream bank or shoreline vegetation; vegetation on steep, unstable slopes; and vegetation on soils highly susceptible to wind or water erosion. b. Protective measures. Describe measures to preserve trees and critical plant communities (e.g., design and location of streets, lots and open spaces). 6. Wildlife. a. Species. Describe species of fish and wildlife which use the area affected by the proposed subdivision. b. Critical areas. Identify on a plat overlay or sketch map of the proposed subdivision any known critical, significant or “key” wildlife areas, such as big game winter range, waterfowl nesting areas, habitat for rare or endangered species or wetlands. c. Pets/human activity. Describe the expected effects of pets and human activity on wildlife. d. Public access. Describe the effects on public access to public lands, trails, hunting or fishing areas. e. Protective measures. Describe any proposed measures to protect or enhance wildlife habitat or to minimize degradation (e.g., keeping building and streets back from shorelines, setting aside marshland as undeveloped open space). f. Discussion of impact; documentation. The developer shall discuss the impact of the proposed development on fish and wildlife with the Montanastate department of fish, wildlife and Parks (FWP). With the preliminary plat, the developer shall provide written documentation from FWP that: (1) Verifies that FWP has reviewed the proposed plat; (2) Lists any FWP recommendations; and (3) Outlines any mitigation planned to overcome any adverse impacts. 7. Historical features. a. Affected areas. Describe and locate on a plat overlay or sketch map any known or possible historic, paleontological, archaeological, or cultural sites, structures, or objects which may be affected by the proposed subdivision. b. Protective measures. Describe any plans to protect such sites or properties. PROOFS Page 792 of 977 c. Procedures. Describe procedures to be followed if any historic, paleontological, archaeological, cultural sites, structures or object are found on site during site preparation and construction. d. Discussion of impact; documentation. The developer shall discuss the impact of the proposed development on any historic features, and the need for inventory, study and/or preservation with the state historic preservation office (SHPO). The developer shall provide written documentation from SHPO that: (1) Verifies that SHPO has reviewed the proposed plat; (2) Lists any SHPO recommendations; (3) Outlines any plans for inventory, study, and/or preservation; and (4) Describes any mitigation planned to overcome any adverse impacts. e. Preparation of information. Information on historical sites shall be prepared by a qualified professional, including persons with a professional or educational background in history, architectural history, archaeology, art history, historic preservation, anthropology and cultural resource management. 8. Agriculture. a. Number of acres in production and type of production. b. Agricultural operations in the vicinity, and other uses of land in the general vicinity. c. The productivity of the land. d. Whether or not the property is part of a viable farm unit, and whether the property was under production during the last regular season. e. What measures will be taken, if any, to control family pets. f. Fencing of agricultural land. Describe any existing fence lines around the subdivision boundary which protect agricultural lands under an ownership other than of the developer, and describe any measure which will be taken to ensure that the owners of the subdivision will share with the owner of the agricultural lands in the continued maintenance of the fence. 9. Agricultural water user facilities. a. Type, description, ownership and users of facilities. b. Written documentation demonstrating active use of facilities. If a facility is not being actively used, include a written plan for abandonment. c. Describe any proposed realignment. All realignments must comply with all relevant requirements of state law. 10. Water and sewer. Provide an engineering design report and/or other documentation demonstrating that adequate water distribution systems and capacity, and sewage collection and disposal systems and capacity, exists to serve the proposed subdivision. 11. Stormwater management. A stormwater management plan shall be submitted with the preliminary plat. A system shall be designed to remove solids, silt, oils, grease and other pollutants from the runoff from the private and public streets and all lots, including: PROOFS Page 793 of 977 a. The plan shall depict the retention/detention basin locations, and locate and provide easements for adequate drainageways within the subdivision to transport runoff to the stormwater receiving channel. Stormwater receiving channels shall be clearly identified for all ponds. b. The plan shall include sufficient site grading and elevation information (particularly for the basin sites, drainageways and lot finished grades), typical stormwater retention/detention basin and discharge structure details, basin sizing calculations, and a stormwater maintenance plan. c. Any necessary stormwater easements. 12. Streets, roads and alleys. a. Description. Describe any proposed new public or private streets, roads or alley, or substantial improvements of existing public or private streets, roads or alleys. The developer shall demonstrate that the land to be subdivided has access onto a legal street. b. Access to arterial. Discuss whether any of the individual lots or tracts have access directly to arterial streets or roads, and if so, the reason access was not provided by means of a street within the subdivision and how the access complies with §18.44.090, BMCsection 38.24.090. c. Modification of existing streets, roads or alleys. Explain any proposed closure or modification of existing streets, roads or alleys. d. Dust. Describe provisions considered for dust control on alleys. e. Pollution and erosion. Explain how street, road and alley maintenance will be provided to meet the department of environmental quality guidelines for prevention of water pollution and erosion. f. Traffic generation. Discuss how much daily traffic will be generated on existing local and neighborhood streets, roads and alleys, when the subdivision is fully developed, and provide the following information: (1) The report format shall be as follows: (a) Trip generation, using the Institute of Transportation Engineers Trip Generation Manual; (b) Trip distribution; (c) Traffic assignment; (d) Capacity analysis; (e) Evaluation; and (f) Recommended access plan, including access points, modifications and any mitigation techniques. (2) The report shall include the following information: (a) Land use and trip generation in the form of a table of each type of land use, the number of units or square footage, as appropriate, the trip rates used (daily and peak) and resulting trip generation. (b) Traffic graphics, which show: (i) A.M. peak hour site traffic; PROOFS Page 794 of 977 (ii) P.M. peak hour site traffic; (iii) A.M. peak hour total traffic; (iv) P.M. peak hour total traffic; (v) Total daily traffic (with site-generated traffic shown separately). (c) A.M. and P.M. capacity analysis with an A.M. and P.M. peak- hour capacity analysis provided for: (i) All major drive accesses that intersect collector or arterial streets or roads; and (ii) All arterial-arterial, collector-collector and arterial- collector intersections within one-half mile of the site, or as required by the city engineer during the preapplication review, concept plan review, or informal project review. (d) For two-way stop controlled intersections, analysis of whether the intersection would satisfy signalization warrants if the two- way stop control was removed. g. Capacity. Indicate the levels of service (before and after development) of existing and proposed streets and roads, including appropriate intersections, to safely handle any increased traffic. Describe any anticipated increased maintenance that will be necessary due to increased traffic and who will pay the cost of maintenance. h. Bicycle and pedestrian pathways, lanes and routes. Describe bicycle and pedestrian pathways, lanes or routes to be developed with the development. i. Traffic calming. Detailed drawings of any proposed traffic calming installations, including locations and turning radius templates. 13. Utilities. The developer shall submit a copy of the subdivision plat to all relevant utility companies. With the preliminary plat, the developer shall provide written documentation of the following: a. Affected utilities. Indicate which affected utilities the subdivision plat has been submitted to for review, and include a copy of responses. b. Include a description of: (1) The method of furnishing electric, natural gas, cable TV, internet or telephone service, where provided. (2) Estimated timing of each utility installation. (3) The developer shall provide a written statement from the utility companies that the proposed subdivision can be provided with service. 14. Educational facilities. With the preliminary plat, provide a written statement from the administrator of the appropriate school system indicating whether the increased enrollment can be accommodated by the present personnel and facilities and by the existing school bus system. 15. Land use. a. Indicate the proposed use and number of lots or spaces in each: PROOFS Page 795 of 977 (1) Residential area, single-household; (2) Residential area, multiple-household. Types of multiple-household structures and numbers of each (e.g., duplex, four-plex); (3) Planned unit development (number of units); (4) Condominium (number of units); (5) Manufactured housing community (number of units); (6) Recreational vehicle park; (7) Commercial or industrial; and (8) Other (please describe). 16. Parks and recreation facilities. The following information shall be provided for all land used to meet park land dedication requirements: a. Park plan. A park plan, including: (1) Site plan for the entire property; showing developer installed improvements on the initial park plan and proposed future improvements on the future park plan; (2) Drainage areas; (3) Utilities in and adjacent to the property; (4) The zoning and ownership for adjacent properties; (5) The location of any critical lands (wetlands, riparian areas, streams, etc.) and location of watercourse setbacks; (6) Park landscaping plan, prepared by a qualified landscape professional in accordance with §18.78.100section 38.41.100, showing the location and specific types and species of plants, shrubs, trees as well as grass seed mixes; (7) General description of land, including size, terrain, details of location and history, and proposed activities; (8) Trail design and construction showing compliance with adopted city standards and trail classifications; (9) The requirement for approval of the final park plan by the city commission with a recommendation from the Bozemancity recreation and parks advisory board prior to any site work; (10) The requirement for a preconstruction meeting prior to any site work; (11) Appropriate sections from the design guidelines for city parks; (12) Cost estimate and installation responsibility for all improvements; (13) If playground equipment will be provided, information including the manufacturer, installation data and specifications, installer, type of fall zone surfacing and age group intended for use shall be provided; and (14) Soils information and analysis. b. Park maintenance. (1) Maintenance information, including levels of maintenance, a PROOFS Page 796 of 977 maintenance schedule, and responsible parties; (2) Weed control plan, including responsible parties; and (3) Plan for garbage collection, snow removal and leaf removal including responsible parties. c. Irrigation information. (1) An irrigation system map generally showing the locations and types of lines, including depth, water source, heads, electric valves, quick couplers, drains and control box; and (2) If a well will be used for irrigation, a certified well log shall be submitted showing depth of well, gpm, pump type and size, voltage, water rights, etc. d. Phasing. If improvements will be phased, a phasing plan shall be provided including proposed financing methods and responsibilities. 17. Neighborhood center plan. A neighborhood center plan shall be prepared and submitted for all subdivisions containing a neighborhood center. 18. Lighting plan. The following subdivision lighting information shall be submitted for all new subdivisions: a. For subdivision applications where lighting is required or proposed, lighting plans shall be submitted to the city for review and approval, and shall include: (1) Isofootcandle plots for individual fixture installations, and ten-foot by ten-foot illuminance-grid plots for multifixture installations, which demonstrate compliance with the intensity and uniformity requirements as set forth in this chapter. (2) Description of the proposed equipment, including fixture manufacturer’s cutsheets, photometrics, glare reduction devices, lamps, on/off control devices, mounting heights, pole foundation details and mounting methods. (3) The lighting plan shall be prepared, and certified for compliance with the city’s design requirements and illumination standards, by a qualified lighting professional. Qualified lighting professionals include electrical engineers, architects, lighting designers and manufacturers representatives. (4) Lighting calculations shall include only the illuminated areas; areas occupied by buildings or other nonlighted areas shall be excluded from calculations. b. When requested by the city, the applicant shall also submit a visual-impact plan that demonstrates appropriate steps have been taken to mitigate on-site and off-site glare and to retain the city’s character. c. Post-approval alterations to lighting plans or intended substitutions for approved lighting shall only be made after city of Bozeman review and approval. 19. Miscellaneous. a. Public lands. Describe how the subdivision will affect access to any public PROOFS Page 797 of 977 lands. Where public lands are adjacent to or within 200 feet of the proposed development, describe present and anticipated uses for those lands (e.g., open space, recreation, etc.), and how public access will be preserved/enhanced. b. Hazards. Describe any health or safety hazards on or near the subdivision, such as mining activity or potential subsidence, high pressure gas lines, dilapidated structures or high voltage power lines. Any such conditions should be accurately described and their origin and location identified. List any provisions that will be made to mitigate these hazards. Also describe any on-site or off-site land uses creating a nuisance. 20. Affordable housing. Describe how the subdivision will satisfy the requirements of title 17 chapter 2, BMC chapter 10, article 8. The description shall be of adequate detail to clearly identify those lots designated as subject to Title 17, Chapter 2 BMC chapter 10, article 8 compliance requirements and to make the obligations placed on the affected lots readily understandable. a. On all lots intended to be used to satisfy the requirements of chapter 10, article 17.02, BMC8, the allowable building envelope shall be depicted. (Ord. No. 1645, § 18.78.060, 8-15-2005; Ord. No. 1693, § 28(18.78.060), 2-20-2007; Ord. No. 1709, § 15(18.78.060), 7-16-2007; Ord. No. 1755, § 2, 1-20-2009; Ord. No. 1761, exh. Q(18.78.060), 7-6-2009; Ord. No. 1796, § 8, 1-3-2011) Sec. 38.41.070. Final plat. A. A final subdivision plat may not be approved by the city commission unless all certificates, with the exception of the director of public service and the county clerk and recorder, have been complied with, signed and notarized and all subdivision regulations and conditions of preliminary plat approval have been met. A final subdivision plat may not be filed with the county clerk and recorder unless all certificates, with the exception of the county clerk and recorder, have been complied with, signed and notarized. This shall include the certification by the county treasurer that no real property taxes and special assessments assessed and levied on the land to be subdivided are delinquent. 1. A final subdivision plat may not be approved by the city commission or filed by the county clerk and recorder unless it complies with the uniform standards for final subdivision plats 342as established in the Administrative Rule of Montana. (§8.94.3003, ARM). 2. A letter from the city engineer shall be submitted to the planning department with the final plat application, where applicable, certifying that the following documents have been received: a. As-built drawings, i.e., copies of final plans, profiles, grades and specifications for public improvements, including a complete grading and drainage plan. b. Copy of the state highway access or encroachment permit where a street created by the plat will intersect with a state highway. 3. Noxious weed MOU. Prior to final plat approval, a memorandum of understanding shall be entered into by the weed control district and the developer. The memorandum of understanding shall be signed by the district and the developer prior to final plat approval, and a copy of the signed document shall be submitted to 342 Note change requested by city staff. PROOFS Page 798 of 977 the planning department with the application for final plat approval. 4. Final park plan. For all land used to meet park land dedication requirements, a final park plan shall be submitted to the city for review and approval prior to final plat. The installation of any park improvements to meet minimum development standards or conditions of approval shall comply with Chapter18.74, BMCarticle 39 of this chapter. The final park plan shall be reviewed and approved by the city commission, with a recommendation from the Bozemancity recreation and parks advisory board. The final park plan shall include all of the information listed in section 18.78.06038.41.060.A.16. 5. Irrigation system as-builts. The developer shall provide irrigation system as-builts, for all irrigation installed in public rights-of-way and/or land used to meet park land dedication requirements, once the irrigation system is installed. The as-builts shall include the exact locations and type of lines, including accurate depth, water source, heads, electric valves, quick couplers, drains and control box. 6. Affordable housing. The developer shall provide a description of how the subdivision has complied with Title 17 Chapter 2, BMC chapter 10, article 8. The description shall be of adequate detail to clearly identify those lots designated as subject to Title 17, Chapter 2, BMC chapter 10, article 8 compliance requirements and to make the obligations placed on the affected lots readily understandable. (Ord. No. 1645, § 18.78.070, 8-15-2005; Ord. No. 1693, § 28(18.78.070), 2-20-2007; Ord. No. 1709, § 15(18.78.070), 7-16-2007; Ord. No. 1761, exh. Q(18.78.070), 7-6-2009) Sec. 38.41.080. Site plan submittal requirements. A. Applications for all site plan approvals shall be submitted to the planning department on forms provided by the planning director. The site plan application shall be accompanied by the appropriate fee and development plans showing sufficient information for the approval authority to determine whether the proposed development will meet the development requirements of the city. 1. General information. a. Complete, signed application including the following: (1) Name of project/development; (2) Location of project/development by street address and legal description; (3) Name and mailing address of developer and owner; (4) Name and mailing address of engineer/architect, landscape architect and/or planner; (5) Listing of specific land uses being proposed; and (6) A statement signed by the owner of the proposed development of their intent to comply with the requirements of the Bozemanthis Municipal Code and any conditions considered necessary by the approval body; b. Location map, including area within one-half mile of the site; c. List of names and addresses of property owners according to Chapter18.76, BMCarticle 40 of this chapter; d. For all developments, excluding sketch and reuse/further development, a construction route map shall be provided showing how materials and heavy PROOFS Page 799 of 977 equipment will travel to and from the site. The route shall avoid, where possible, local or minor collector streets or streets where construction traffic would disrupt neighborhood residential character or pose a threat to public health and safety. 2. Site plan information. The following information is required whenever the requested information pertains to zoning or other regulatory requirements of this chaptertitle, existing conditions on-site or conditions on-site which would result from the proposed development: a. Boundary line of property with dimensions; b. Date of plan preparation and changes; c. North point indicator; d. Suggested scale of one inch to 20 feet, but not less than one inch to 100 feet; e. Parcel and site coverage information: (1) Parcel size in gross acres and square feet; (2) Estimated total floor area and estimated ratio of floor area to lot size (floor area ratio, FAR), with a breakdown by land use; and (3) Location, percentage of parcel and total site, and square footage for the following: (a) Existing and proposed buildings and structures; (b) Driveway and parking; (c) Open space and/or landscaped area, recreational use areas, public and semipublic land, parks, school sites, etc.; and (d) Public street right-of-way; f. Total number, type and density per type of dwelling units, and total net and gross residential density and density per residential parcel; g. Location, identification and dimension of the following existing and proposed data, on-site and to a distance of 100 feet (200 feet for PUDs) outside site plan boundary, exclusive of public rights-of-way, unless otherwise stated: (1) Topographic contours at a minimum interval of two feet, or as determined by the planning director; (2) Adjacent streets and street rights-of-way to a distance of 150 feet, except for sites adjacent to major arterial streets where the distances shall be 200 feet; (3) On-site streets and rights-of-way; (4) Ingress and egress points; (5) Traffic flow on-site; (6) Traffic flow off-site; (7) Utilities and utility rights-of-way or easements: (a) Electric; (b) Natural gas; (c) Telephone, cable TV, and similar utilities; PROOFS Page 800 of 977 (d) Water; and (e) Sewer (sanitary, treated effluent and storm); (8) Surface water, including: (a) Holding ponds, streams and irrigation ditches; (b) Watercourses, water bodies and wetlands; (c) Floodplains as designated on the federal insurance rate map or that may otherwise be identified as lying within a 100-year floodplain through additional floodplain delineation, engineering analysis, topographic survey or other objective and factual basis; and (d) A floodplain analysis report in compliance with Chapterarticle 18.5831 of this chaptertitle if not previously provided with subdivision review; (9) Grading and drainage plan, including provisions for on-site retention/detention and water quality improvement facilities as required by the engineering department, or in compliance with any adopted storm drainage ordinance or best management practices manual adopted by the city; (a) All drainageways, streets, arroyos, dry gullies, diversion ditches, spillways, reservoirs, etc., which may be incorporated into the storm drainage system for the property shall be designated: (i) The name of the drainageway (where appropriate); (ii) The downstream conditions (developed, available drainageways, etc.); and (iii) Any downstream restrictions; (10) Significant rock outcroppings, slopes of greater than 15 percent or other significant topographic features; (11) Sidewalks, walkways, driveways, loading areas and docks, bikeways, including typical details and interrelationships with vehicular circulation system, indicating proposed treatment of points of conflict, a statement requiring lot accesses to be built to the standard contained in this section, the city design standards and specifications policy, and the city modifications to Montanastate public works standard specifications; (12) Provision for handicapped accessibility, including, but not limited to, wheelchair ramps, parking spaces, handrails and curb cuts, including construction details and the applicant's certification of ADA compliance; (13) Fences and walls, including typical details; (14) Exterior signs; (15) Exterior refuse collection areas, including typical details; (16) A site plan, complete with all structures, parking spaces, building entrances, traffic areas (both vehicular and pedestrian), vegetation PROOFS Page 801 of 977 that might interfere with lighting, and adjacent uses, containing a layout of all proposed fixtures by location and type. The materials required in section 18.78.06038.41.060.A.18, BMC, if not previously provided; (17) Curb, asphalt section and drive approach construction details; (18) Landscaping (detailed plan showing plantings, equipment, and other appropriate information as required in section 18.78.100, BMC38.41.100); (19) Unique natural features, significant wildlife areas and vegetative cover, including existing trees and shrubs having a diameter greater than 2.5 inches, by species; (20) Snow storage areas; (21) Location of city limit boundaries, and boundaries of Gallatin County's Bozeman Area Zoning Jurisdiction, within or near the development; (22) Existing zoning within 200 feet of the site; (23) Historic, cultural and archaeological resources, describe and map any designated historic structures or districts, and archaeological or cultural sites; and (24) Major public facilities, including schools, parks, trails, etc.; h. Detailed plan of all parking facilities, including circulation aisles, access drives, bicycle racks, compact spaces, handicapped spaces and motorcycle parking, on-street parking, number of employee and nonemployee parking spaces, existing and proposed, and total square footage of each; i. The information required by section 18.78.06038.41.060.A.12., BMC, subject to the following exceptions: (1) Such information was previously provided through a subdivision review process; or (2) The provision of such information was waived in writing by the city engineer during subdivision review of the land to be developed; or (3) The provision of such information is waived in writing by the city engineer prior to submittal of a preliminary site plan application; or (4) The application for site plan approval involves the redevelopment of property located within the city's established neighborhood conservation overlay district. In such cases, the city may require the property owner to sign a waiver of right to protest creation of a special improvement district, or other form of agreement, assuring participation, on a fair share, pro-rata basis, in future improvements to intersections in the vicinity of the development proposal; or (5) The application for site plan approval involves the adaptive reuse of an existing building, regardless of its location within the city, or the redevelopment of a property located within one of the city's urban renewal districts. In cases where an existing building or complex of buildings is to be torn down and replaced with a larger building or complex of buildings, the city engineer may require the information described in section 18.78.06038.41.060.A.12 to evaluate the PROOFS Page 802 of 977 additional traffic impacts resulting from development of the larger building or complex of buildings; j. Building design information (on-site): (1) Building heights and elevations of all exterior walls of the building or structure; (2) Height above mean sea level of the elevation of the lowest floor and location of lot outfall when the structure is proposed to be located in a floodway or floodplain area; (3) Floor plans depicting location and dimensions of all proposed uses and activities; and (4) All on-site utilities and mechanical equipment; k. Description and mapping of soils existing on the site, accompanied by analysis as to the suitability of such soils for the intended construction and proposed landscaping; l. Temporary facilities plan showing the location of all temporary model homes, sales offices and/or construction facilities, including temporary signs and parking facilities; m. Unless already provided through a previous subdivision review, a noxious weed control plan complying with §18.78.050, BMCsection 38.41.050; and n. Drafts of applicable supplementary documents as set forth in chapter18.72article 38 of this chaptertitle; o. The information necessary to complete the determination of density change and park land provision required by section 18.50.02038.27.020.B, BMC, unless such information was previously determined by the city to be inapplicable and written confirmation is provided to the applicant prior to submittal of a preliminary site plan application. If a new park will be created by the development the park plan materials of section 18.78.06038.41.060.A.16, BMC shall be provided; p. Affordable housing. Describe how the site plan will satisfy any requirements of Title 17 Chapter 2, BMC chapter 10, article 8 which have either been established for that lot through the subdivision process or if no subdivision has previously occurred are applicable to a site plan. The description shall be of adequate detail to clearly identify those lots and dwellings designated as subject to Title 17, Chapter 2, BMC chapter 10, article 8 compliance requirements and to make the obligations placed on the affected lots and dwellings readily understandable; q. Phased site plans: (1) A phasing plan showing the location of phase boundaries and that each phase will be fully functional if subsequent phases are not completed; (2) A utilities plan showing that each phase will be able to be fully functional if subsequent phases are not completed; (3) A revegetation and grading plan showing how disturbed areas will be revegetated to control weeds and site grading and drainage control will be maintained as phased construction proceeds; PROOFS Page 803 of 977 (4) If the applicant intends for multiple phases to be under construction simultaneously, evidence of financial commitment from the project lender for the completion of all phases to be undertaken at once. Evidence of financial commitment may be provided at the time the building permits for the multiple phases are sought. (Ord. No. 1645, § 18.78.080, 8-15-2005; Ord. No. 1693, § 28(18.78.080), 2-20-2007; Ord. No. 1709, § 15(18.78.080), 7-16-2007; Ord. No. 1755, § 3, 1-20-2009; Ord. No. 1761, exh. Q(18.78.080), 7-6-2009; Ord. No. 1769, § 18, 12-28-2009) Sec. 38.41.090. Certificates of appropriateness; additional application requirements, review procedures and review criteria. A. Submittal requirements for certificates of appropriateness. All development proposals requiring certificates of appropriateness (i.e., located in a neighborhood conservation or entryway corridor overlay districts) shall submit the following information in addition to any sketch plan, site plan or special development submittal requirements for the proposal: 1. Neighborhood conservation overlay district. Certain information shall be provided to the appropriate review authority to review prior to granting or denying a certificate of appropriateness. The extent of documentation to be submitted on any project shall be dictated by the scope of the planned alteration and the information reasonably necessary for the appropriate review authority to make its determination. At a minimum, the following items shall be included in the submission: a. Completed application on form provided by the planning department; b. One current picture of each elevation of each structure planned to be altered and such additional pictures of the specific elements of the structure or property to be altered that will clearly express the nature and extent of change planned. Except when otherwise recommended, no more than eight pictures should be submitted and all pictures shall be mounted on letter-size sheets and clearly annotated with the property address, elevation direction (N, S, E, W) and relevant information; c. Sketch plan or site plan information, as per §18.34.050section 38.19.050 or §18.34.060, BMC38.19.060; d. Historical information, including available data such as pictures, plans, authenticated verbal records and similar research documentation that may be relevant to the planned alteration; e. Materials and color schemes to be used; f. Plans, sketches, pictures, specifications and other data that will clearly express the applicant’s proposed alterations; g. A schedule of planned actions that will lead to the completed alterations; h. Such other information as may be suggested by the planning department; i. It is further suggested that the applicant seek comments from the neighborhood or area; and j. Description of any applicant-requested deviation and a narrative explanation as to how the requested deviation will encourage restoration and rehabilitation activity that will contribute to the overall historic character of the community. 2. Entryway overlay district. PROOFS Page 804 of 977 a. Depending on the complexity of development, either sketch plans or site plans will be required as specified in this chapterarticle. b. If the proposal includes an application for a deviation as outlined in section 18.66.050, BMC38.35.050, the application for deviation shall be accompanied by written and graphic material sufficient to illustrate the conditions that the modified standards will produce, so as to enable the city commission to make the determination that the deviation will produce an environment, landscape quality and character superior to that produced by the existing standards, and will be consistent with the intent and purpose of chapter18.30, BMCarticle 17 of this chapter. (Ord. No. 1645, § 18.78.090, 8-15-2005; Ord. No. 1693, § 28(18.78.090), 2-20-2007; Ord. No. 1709, § 15(18.78.090), 7-16-2007; Ord. No. 1761, exh. Q(18.78.090), 7-6-2009) Sec. 38.41.100. Submittal requirements for landscape plans. A These landscape regulations apply to a lot or site subject to plan review and approval outlined in chapterarticle 18.34, BMC19 of this chapter, a separate landscape plan shall be submitted as part of the site plan application unless the required landscape information can be included in a clear and uncluttered manner on a site plan with a scale where one inch equals 20 feet. B. Landscape plan format. The landscape plan submittal shall include: 1. Suggested scale of one inch equals 20 feet but not less than one inch equals 100 feet; and 2. Standard drawing sheet of a size not to exceed 24 by 36 inches. A plan which cannot be drawn entirely on a 24- by 36-inch sheet must be drawn on two or more sheets, with match lines. C. Preparation of landscape plan. Landscape plans shall be prepared and certified by: 1. A state-registered Montanastate landscape architect; 2. An individual with a degree in landscape design and two years of professional design experience in Montanathe state; or 3. An individual with a degree in a related field (such as horticulture, botany, plant science, etc.) and at least five years of professional landscape design experience, of which two years have been in Montanathe state. D. Contents of landscape plan. A landscape plan required pursuant to this chaptertitle shall contain the following information: 1. Date, scale, north arrow, and the names, addresses, and telephone numbers of both the property owner and the person preparing the plan; 2. Location of existing boundary lines and dimensions of the lot; 3. Approximate centerlines of existing watercourses, required watercourse setbacks, and the location of any 100-year floodplain; the approximate location of significant drainage features; and the location and size of existing and proposed streets and alleys, utility easements, utility lines, driveways and sidewalks on the lot and/or adjacent to the lot; 4. Project name, street address, and lot and block description; 5. Location, height and material of proposed screening and fencing (with berms to be delineated by one foot contours); PROOFS Page 805 of 977 6. Locations and dimensions of proposed landscape buffer strips, including watercourse buffer strips; 7. Complete landscape legend providing a description of plant materials shown on the plan, including typical symbols, names (common and botanical name), locations, quantities, container or caliper sizes at installation, heights, spread and spacing. The location and type of all existing trees on the lot over six inches in caliper must be specifically indicated; 8. Complete illustration of landscaping and screening to be provided in or near off- street parking and loading areas, including information as to the amount (in square feet) of landscape area to be provided internal to parking areas and the number and location of required off-street parking and loading spaces; 9. An indication of how existing healthy trees (if any) are to be retained and protected from damage during construction; 10. Size, height, location and material of proposed seating, lighting, planters, sculptures, and water features; 11. A description of proposed watering methods; 12. Location of street vision triangles on the lot (if applicable); 13. Tabulation of “points” earned by the plan (see §18.48.060section 38.26.060); 14. Designated snow removal storage areas; 15. Location of pavement, curbs, sidewalks and gutters; 16. Show location of existing and/or proposed drainage facilities which are to be used for drainage control; 17. Existing and proposed grade; 18. Size of plantings at the time of installation and at maturity; 19. Areas to be irrigated; 20. Planting plan for watercourse buffers, per §18.42.100, BMCsection 38.23.100, if not previously provided through subdivision review; and 21. Front and side elevations of buildings, fences and walls with height dimensions if not otherwise provided by the application. Show open stairways and other projections from exterior building walls. (Ord. No. 1645, § 18.78.100, 8-15-2005; Ord. No. 1693, § 28(18.78.100), 2-20-2007; Ord. No. 1709, § 15(18.78.100), 7-16-2007; Ord. No. 1761, exh. Q(18.78.100), 7-6-2009) Sec. 38.41.110. Sketch plan submittal requirements. A sketch plan shall be drawn to scale and in sufficient detail to demonstrate compliance with the requirements of this chaptertitle. Sketch plans shall be oriented with north at the top of the page and shall also show site boundaries, street and alley frontages with names, and location of all structures with distances to the nearest foot between buildings and from buildings to property lines. (Ord. No. 1645, § 18.78.110, 8-15-2005; Ord. No. 1693, § 28(18.78.110), 2-20-2007; Ord. No. 1709, § 15(18.78.110), 7-16-2007; Ord. No. 1761, exh. Q(18.78.110), 7-6-2009) Sec. 38.41.120. Planned unit development submittal requirements. A. The following material shall be submitted for review with each planned unit development. PROOFS Page 806 of 977 1. Submittal requirements for preapplications. The following information and data shall be submitted for preapplication review. The number of copies required shall be determined by the planning department: a. Data regarding site conditions, land characteristics, available community facilities and utilities and other related general information about adjacent land uses and the uses of land within one-half mile of the subject parcel of land; b. Conceptual (sketch) drawing showing the proposed location of the uses of land, major streets and other significant features on the site and within one- half mile of the site; and c. A computation table showing the site’s proposed land use allocations by location and as a percent of total site area. 2. Submittal requirements for preliminary plans. The following information and data shall be submitted for preliminary plan review. The number of copies required shall be determined by the planning department: a. Document requirements. The following information shall be presented in an 8 1/2- by 11-inch vertically bound document. The document shall be bound so that it will open and lie flat for reviewing and organized in the following order: (1) Application forms; (2) A list of names of all general and limited partners and/or officers and directors of the corporation involved as either applicants or owners of the planned unit development; (3) A statement of planning objectives, including: (a) Statement of applicable city land use policies and objectives achieved by the proposed plan and how it furthers the implementation of the Bozemancity growth policy; (b) Statement of: (i) Proposed ownership of open space areas; and (ii) Applicant’s intentions with regard to future ownership of all or portions of the planned unit development; (c) Estimate of number of employees for business, commercial and industrial uses; (d) Description of rationale behind the assumptions and choices made by the applicant; (e) Where deviations from the requirements of this chaptertitle are proposed, the applicant shall submit evidence of successful completion of the applicable community design objectives and criteria of section 18.36.090, BMC38.20.090. The applicant shall submit written explanation for each of the applicable objectives or criteria as to how the plan does or does not address the objective or criterion. The planning director may require, or the applicant may choose to submit, evidence that is beyond what is required in that section. Any element of the proposal that varies from the criterion shall be described; PROOFS Page 807 of 977 (f) Detailed description of how conflicts between land uses of different character are being avoided or mitigated; and (g) Statement of design methods to reduce energy consumption, (e.g., home/business utilities, transportation fuel, waste recycling); (4) A development schedule indicating the approximate date when construction of the planned unit development, or stages of the same, can be expected to begin and be completed, including the proposed phasing of construction of public improvements and recreational and common space areas; (5) One reduced version of all preliminary plan and supplemental plan maps and graphic illustrations at 8½- by 11-inches or 11- by 17-inches size. b. Site plan requirements. A site plan of the proposed development drawn at a scale of not less than one inch equals 100 feet, composed of one or more sheets with an outer dimension of 24 by 36 inches, showing the information required for site plans in section 18.78.080, BMC38.41.080 plus the following additional information: (1) Notations of proposed ownership, public or private, should be included where appropriate; (2) The proposed treatment of the perimeter of the planned unit development, including materials and techniques used, such as screening, fences, walls and other landscaping; and (3) Attorney’s or owner’s certification of ownership. c. Supplemental plan requirements. (1) Viewsheds. (a) Looking onto and across the site from areas around the site, describe and map the views and vistas from adjacent properties that may be blocked or impaired by development of the site; (b) Describe and map areas of high visibility on the site as seen from adjacent off-site locations; (2) Street cross sections if different from city standards. Street cross section schematics shall be submitted for each general category of street, including: (a) The proposed width; (b) Treatment of curbs and gutters, or other stormwater control system if other than curb and gutter is proposed; (c) Sidewalk systems; and (d) Bikeway systems, where alternatives to the design criteria and standards of the city are proposed; (3) Physiographic data, including the following: (a) A description of the hydrologic conditions of the site with analysis of water table fluctuation and a statement of site suitability for intended construction and proposed landscaping. PROOFS Page 808 of 977 The description of the hydrologic conditions shall include depth to groundwater measurements taken May 15 through September 15; (i) An alternative to the actual measurement of water table depth may be offered provided that such alternative includes a detailed soil profile, including a detailed description of the soil which follows The National Cooperative Soil Survey Field Book for describing soils and which provides good and sufficient evidence to establish the presence and depth of a seasonal water table, a land form position or location, or other physiographic data which are sufficient to establish the minimum depth to groundwater. Some soils are not easily profiled to establish an off-season high water table, such as those underlain by sand or gravel, those high in organic matter and those with a high lime content. Physical monitoring of these types of soils may be necessary; (b) Locate and identify the ownership of existing wells or well sites within 400 feet of the site; (4) Preliminary subdivision plat. If the project involves or requires platting, a preliminary subdivision plat, subject to the requirements of this chaptertitle relative to subdivisions, shall be submitted; (5) Traffic impact analysis. Not withstanding the waiver provisions of section 18.78.08038.41.080.A.2.i, BMC, at the discretion of the city engineer, a traffic impact analysis shall be prepared based upon the proposed development. The analysis shall include provisions of the approved development guidelines, and shall address impacts upon surrounding land uses. The director of public service may require the traffic impact analysis to include the information in section 18.78.050L.38.41.060.A.12, BMC. If a traffic impact analysis has been submitted as part of a concurrent subdivision review, that analysis shall meet this requirement; (6) Additional studies and plans. If the development’s compliance with the community design objectives and criteria is under question, the city commission may require additional impact studies or other plans as deemed necessary for providing thorough consideration of the proposed planned unit development; (7) A proposed draft of a legal instrument containing the creation of a property owner’s association sufficient to meet the requirements of section 18.72.020, BMC38.38.020 shall be submitted with the preliminary plan application. 3. Submittal requirements for final plans. a. A completed and signed application form; b. A list of names of all general and limited partners and/or officers and directors of the corporation involved as either applicants or owners of the planned unit development; PROOFS Page 809 of 977 c. Site plan submittal requirements. (1) A final plan site plan shall be submitted on a 24- by 36-inch sheet at the same scale as the approved preliminary plan. If a different scale is requested or required, a copy of the approved preliminary plan shall be submitted that has been enlarged or reduced to equal the scale of the final plan. However, only the scales permitted for the preliminary plans shall be permitted for final plans; (2) The final plan site plan shall show the following information: (a) Land use data (same information as required on the preliminary site plan); (b) Lot lines, easements, public rights-of-way as per subdivision plat; (c) Attorney’s or owner’s certification of ownership; (d) Planning director certification of approval of the site plan and its conformance with the preliminary plan; and (e) Owner’s certification of acceptance of conditions and restrictions as set forth on the site plan; d. Supplemental plans. (1) Final landscape plan. A final landscape plan consistent with the conditions and restrictions of the approved preliminary plan shall be submitted. It shall also be consistent with the Chapter18.48, BMCarticle 26 of this chapter, except that any stated conditions and restrictions of the preliminary plan approval shall supersede the provisions of chapter18.48, BMCarticle 26 of this chapter; (2) Final subdivision plat. An official final subdivision plat of the site must accompany the final planned unit development plan when applicable. City approval of the final subdivision plat shall be required before issuance of building permits; (3) Final utility plans. Prior to submission of the final plan to the DRC and ADR staff, engineering plans and specifications for sewer, water, street improvements and other public improvements, and an executed improvements agreement in proper form providing for the installation of such improvements, must be submitted to and approved by the city; and (4) Open space maintenance plan. A plan for the maintenance of open space, meeting the requirements of section 18.72.040 38.38.030, BMC,343 shall be submitted with an application for final plan approval. Open space shown on the approved final plan shall not be used for the construction of any structures not shown on the final plan. (Ord. No. 1645, § 18.78.120, 8-15-2005; Ord. No. 1693, § 28(18.78.120), 2-20-2007; Ord. No. 1709, § 15(18.78.120), 7-16-2007; Ord. No. 1761, exh. Q(18.78.120), 7-6-2009) 343 Unable to locate and convert this internal cite. Please provide the correct cite and we will update. Please change the citation to 38.37.030. PROOFS Page 810 of 977 Sec. 38.41.130. Submittal materials for regulated activities in wetlands. A. All parties applying for activity permits proposing action affecting federal, state or city regulated wetlands, watercourses and/or buffers within the city limits shall submit the following information to the water review board: 1. A wetland and watercourse delineation report must be submitted to the city for all projects, if aquatic resources are present. If no aquatic resources are present, a letter shall be submitted to the city stating that there are no water resources within the subject property. a. This wetland and watercourse delineation report shall include, but not be limited to, the following: (1) Wetland and watercourse descriptions; (2) Functional assessment, as determined by a state-accepted functional assessment method, i.e., Montana Department of Transportation (Berglund and McEldowney 2008) or Montana Department of Environmental Quality (Apfelbeck and Farris 2005); (3) Wetland types, as determined by a state-accepted functional assessment method (i.e., Cowardin et al 1979); (4) Wetland acreages (by a licensed surveyor); (5) Maps with property boundaries, wetland and watercourse boundaries and acreages; and (6) Wetland data forms (U.S. Army Corps of Engineers data forms). 2. If activities are planned in and/or adjacent to aquatic resources the following information is required: a. A site plan which shows the property boundary; delineated wetland and watercourse boundaries; buffer boundaries; and all existing and proposed structures, roads, trails, and easements. The site plan will include a table of existing wetland functional ratings and acreage, required buffers and acreage, and linear feet of all watercourses and ditches. (1) All direct impacts to wetlands, watercourses, and buffers shall be highlighted and summarized in a table on the site plan. The water resource and buffer summary table shall include wetland/watercourse identification number; corresponding buffer width and acreage; total site, wetland, watercourse, ditch, and buffer acreages; jurisdictional status; impacts to all water resources and buffers; and, mitigation types and acreages. (2) All indirect impacts (e.g., shading from boardwalks or public utility well drawdown) shall be summarized in the document. b. Include a map with all proposed mitigation areas and their required buffers. The map will include a table of mitigation wetland type and acreage and required buffers and acreage. Describe the functional unit gain of the wetland mitigation (as determined by a state-accepted functional assessment method). c. The source, type and method of transport and disposal of any fill material to be used, and certification that the placement of fill material will not violate any applicable state or federal statutes and regulations as listed in PROOFS Page 811 of 977 18.78.020section 38.41.020. d. The names and addresses of all property owners within 200 feet of the subject property. The names and addresses shall also be provided on self-adhesive mailing labels. e. Copies of the following: (1) Any Clean Water Act (CWA) section 404 and 401 permits; (2) Any MT 301 permits; (3) Any floodplain determinations for the proposed site known to the applicant; (4) Any other applications, state or federal, for wetlands permits regarding the proposed site; (5) Any U.S. Army Corps of Engineers jurisdictional determinations regarding wetlands on the proposed and adjacent site; and (6) If relevant, any MT state joint applications for the proposed project site. f. A completed wetland review checklist. 3. If in the preparation or review of the required submittal materials it is determined that there are unavoidable impacts to wetlands and/or watercourses that will require a Federal Clean Water Act permit, then the following information will be submitted to the city for all federal jurisdictional and city-regulated wetlands (see 18.80.3170section 38.42.3240) in a compensatory mitigation report: a. The descriptive portion of the compensatory mitigation report shall include, at a minimum: (1) The name and contact information of the applicant; the name, qualifications, and contact information for the primary author of the compensatory mitigation report; a description of the proposal; summary of the direct and indirect impacts and proposed mitigation concept; identification of all the local, state, and federal wetland/stream-related permit required for the project; and, a vicinity map for the project. (2) Description of the existing wetland, watercourse and buffer areas that will be impacted including area based on professional surveys; dominant vegetation; and functional assessments and wetland ratings for the entire wetland and the portions proposed to be impacted. (3) An assessment of the potential changes in wetland hydroperiod for the proposed project and how the design has been modified to avoid, minimize or reduce impacts to the wetland hydroperiod. (4) A description of the proposed conceptual mitigation actions for wetland, watercourse and buffer areas. Provide specifications (including buffers) for all proposed mitigation for wetland/watercourse/buffer impacts. Include a map with all proposed mitigation areas and their required buffers. (5) An assessment of existing conditions in the zone of the proposed mitigation including vegetation community structure and composition, existing hydroperiod, existing soil conditions, and existing wetland PROOFS Page 812 of 977 functions. (6) Provide field data that was collected to document the existing conditions of the proposed mitigation sites and on which the future hydrologic and soil conditions of the mitigation wetlands are based (e.g., hydrologic conditions: piezometer data, staff/crest gage data, hydrologic modeling, visual observations; soil conditions: data from hand-dug or mechanical soil pits or boring results). Do not rely on soil survey data for establishing existing conditions. (7) A planting schedule by proposed community type and hydrologic regime, size and type of plant material to be installed, spacing of plants, “typical” clustering patterns, total number of each species by community type, timing of installation, nutrient requirements, watering schedule, weed control, and where appropriate measures to protect plants from destruction. Native species shall comprise 80 percent of the plants installed or seeded within the mitigation site. (8) The mitigation monitoring plan should include a period of not less than three years, and establish the responsibility for long-term removal of invasive vegetation. (9) Wetland mitigation performance criteria (measurable standards reflective of expected development goals established for each year after the mitigation site is established, i.e., “At the end of three years there will be an 80 percent survival of the planted shrubs and trees.”) for mitigation wetlands and buffers, a monitoring schedule, reporting requirements to the city, and maintenance schedule and actions for each year of monitoring. (10) Contingency plans which clearly define course of action or corrective measures needed if performance criteria are not met. b. The scaled plan sheets for the compensatory mitigation must contain, at a minimum: (1) Existing wetland and buffer surveyed edges; proposed areas of wetland and buffer impacts; and, location of proposed wetland and buffer compensation action. (2) Surveyed topography at one- to two-foot contour intervals in the zone of the proposed compensation actions if any grading activity is proposed in the compensation area. Provide existing and proposed mitigation design cross section for the wetland and/or buffer compensation areas. (3) Required wetland buffers for existing wetlands and proposed mitigation areas; c. A discussion of ongoing management practices that will protect and maintain the nonimpacted and mitigation wetland, watercourse and buffer areas in perpetuity. (Ord. No. 1645, § 18.78.130, 8-15-2005; Ord. No. 1693, § 28(18.78.130), 2-20-2007; Ord. No. 1709, § 15(18.78.130), 7-16-2007; Ord. No. 1761, exh. Q(18.78.130), 7-6-2009) Sec. 38.41.140. Submittal materials for appeals of administrative project decisions. A. All appeals of administrative project decisions shall include: PROOFS Page 813 of 977 1. Name and address of the appellant; 2. The legal description and street address of the property involved in the appeal; 3. A description of the project that is the subject of the appeal; 4. Evidence that the appellant is an aggrieved person as defined in chapter18.80, BMCarticle 42 of this chapter; 5. List of names and addresses of property owners within 150 feet of the site, using the last declared county real estate tax records; 6. Stamped, unsealed envelopes addressed with names of above property owners; 7. Required appeal filing fee; and 8. The specific grounds and allegations for the appeal, and evidence necessary to support and justify a decision other than as determined by the planning director. (Ord. No. 1645, § 18.78.140, 8-15-2005; Ord. No. 1693, § 28(18.78.140), 2-20-2007; Ord. No. 1709, § 15(18.78.140), 7-16-2007; Ord. No. 1761, exh. Q(18.78.140), 7-6-2009) Sec. 38.41.150. Administrative interpretation appeals. A. All appeals of administrative interpretations shall include: 1. Name and address of the applicant; 2. The legal description and street address of the property, if any, involved in the appeal; 3. A description of the property, if any, that is the subject of the interpretation appeal including: a. A site plan drawn to scale showing the property dimensions, grading, landscaping and location of utilities, as applicable; b. Location of all existing and proposed buildings; and c. Drive accesses, driveways, access roads, parking spaces, off-street loading areas and sidewalks as applicable; 4. The names and addresses of the owners of the property and any other persons having a legal interest therein; 5. List of names and addresses of property owners within 150 feet of the site, using the last declared county real estate tax records; 6. Stamped, unsealed envelopes addressed with names of the above property owners; 7. Required filing fee; and 8. Evidence to prove that the decision or action of the official for which an appeal is made was incorrect or in violation of the terms of this chaptertitle. (Ord. No. 1645, § 18.78.150, 8-15-2005; Ord. No. 1693, § 28(18.78.150), 2-20-2007; Ord. No. 1709, § 15(18.78.150), 7-16-2007; Ord. No. 1761, exh. Q(18.78.150), 7-6-2009) Sec. 38.41.160. Submittal materials for variances. A. An application for a variance shall be accompanied by a development plan showing such information as the planning director may reasonably require for purposes of this chaptertitle. The plans shall contain sufficient information for the commission to make a proper decision on the matter. The request shall state the exceptional physical conditions and the peculiar and practical difficulties claimed as a basis for a variance. In all cases, the application shall include, and shall not be deemed filed until all of the following is submitted: PROOFS Page 814 of 977 1. Name and address of the applicant; 2. The legal description of the property involved in the request for variance, including the street address, if any, of the property; 3. The names and addresses of the owners of the property and any other persons having a legal interest therein; 4. List of names and addresses of property owners within 150 feet of the site, using the last declared county real estate tax records; 5. Stamped, unsealed envelopes addressed with names of above property owners; 6. A site plan drawn to scale showing the property dimensions, grading, landscaping and location of utilities, as applicable; 7. Location of all existing and proposed buildings; 8. Drive accesses, driveways, access roads, parking spaces, off-street loading areas and sidewalks as applicable; 9. A clear description of the variance requested and the reasons for the request; 10. Justification, in writing of subsections section 18.66.06038.35.060.C, BMC.1, 2, 3 and, when applicable, 4; 11. Evidence satisfactory to the city commission of the ability and intention of the applicant to proceed with actual construction work in accordance with said plans within six months after issuance of permit; and 12. Required filing fee. (Ord. No. 1645, § 18.78.160, 8-15-2005; Ord. No. 1693, § 28(18.78.160), 2-20-2007; Ord. No. 1709, § 15(18.78.160), 7-16-2007; Ord. No. 1761, exh. Q(18.78.160), 7-6-2009) Sec. 38.41.170. Submittal materials for telecommunications. A. The following information shall be submitted for review of wireless facilities as applicable. Failure to provide required materials will result in a determination that the application is incomplete and the application will not be processed. 1. Submittal materials. Table 78-2 38.41.170 Telecommunication Submittal Materials Micro- scale Small- scale Large- scale A detailed written description of how the applicant has complied with, or will comply with, the applicable standards of this chaptertitle, especially those of this chapterarticle; X X X An accurate photo simulation of the site with the proposed facility in place. The simulation shall be to scale, and depict all planned and expected antennae, including collocation of other carriers, on the facility. Landscaping which is not existing or proposed on the accompanying site plan shall not be included in the simulation unless it exists on adjoining properties; X X X A statement of whether the proposed facility is exempt or nonexempt from environmental review under the Rules of the FCC; X X X PROOFS Page 815 of 977 Telecommunication Submittal Materials Micro- scale Small- scale Large- scale If the facility is claimed to be exempt, a detailed and specific citation to the Rules of the FCC indicating the section which details the relevant exemption provisions shall be included. If the facility is not exempt from environmental review, a copy of the environmental review shall be provided with the application, and the approval from the FCC for the site shall be provided to the city prior to the final site plan approval; and If the facility is claimed to be exempt from environmental review, a statement shall be provided, under oath and notarized, that the proposed or existing facility does or will comply with FCC radio frequency emission guidelines for both general population/ uncontrolled exposures and occupational/controlled exposures as defined in the FCC rules. The provision of false information shall result in the immediate revocation of permits or approvals granted upon the basis of the false information and the cessation of operation of the offending facilities; When the applicant is a wireless service provider, proof that the applicant is licensed by the FCC to provide the wireless communication services that the proposed facility is designed to support, or that licensing by the FCC is not required; X X X A report providing a description of the large scale wireless facility with technical reasons and justification for its design and placement; X A description of the maximum capacity of the large scale wireless facility as proposed and how the facility can be retrofitted or modified to accommodate changing user needs; X Documentation establishing the structural integrity for the large scale wireless facility's proposed use including documented loading calculations for wind, snow and seismic forces under circumstances of maximum capacity loading prepared by a professional structural engineer licensed to practice in the state. Loading criteria shall be those set forth in the edition of the International Building Code most recently adopted by the city; and X A statement of how the collocation requirements of section 18.54.04038.29.040.B, BMC, shall be met. X 2. In addition to the materials required above, for all large scale wireless facilities 50 feet or greater in height, the applicant shall submit: a. Propagation studies for the users of the proposed facility, including existing service coverage maps and whether the placement of the new site will require relocations of existing facilities, or a description of how and why the proposed site and facility size is required to provide service that is otherwise unavailable or substantially inadequate or is required for the introduction of a new service; b. A statement of intent of how collocation on the facility will be addressed; PROOFS Page 816 of 977 c. A statement of willingness to allow collocation at reasonable and customary rates by all technically feasible providers up to the structural capacity of the tower; d. An inventory of all surrounding buildings or other structures greater than 50 feet in height within a radius of one mile of the proposed location with a listing of height and suitability for hosting the proposed users of the large scale wireless facility; e. An applicant shall demonstrate in writing that there are no available openings on existing facilities which are feasible and that a new structure is necessary. Such demonstration shall address the criteria in section 18.54.04038.29.040.B, BMC; f. A detailed explanation of how the large scale wireless facility will be maintained and how the maintenance and operations of the large scale wireless facility will be transferred to a third party should the applicant no longer retain ownership. Unless otherwise approved by the city, the responsibility of maintenance and operations shall transfer to the owner of the underlying property; g. An explanation of how the applicant will provide a financial security for the removal of the large scale wireless facility in the event that it no longer serves telecommunications carriers. The financial guarantee shall be 150 percent of the estimated cost of facility removal and must be acceptable to the city; and h. A large scale wireless facility may be reviewed as a multiple phase project and be constructed over time as provided for in section 18.54.04038.29.040.B, BMC. An applicant intending to construct a new large scale wireless facility shall provide letters of intent adequate to meet the requirements for leases set forth in section 18.54.04038.29.040.B, BMC. (Ord. No. 1645, § 18.78.170, 8-15-2005; Ord. No. 1693, § 28(18.78.170), 2-20-2007; Ord. No. 1709, § 15(18.78.170), 7-16-2007; Ord. No. 1761, exh. Q(18.78.170), 7-6-2009) CHAPTER 18.80. DEFINITIONS ARTICLE 42. DEFINITIONS Sec. 38.42.010. Definition of terms and interpretation of language. A. All words in this chaptertitle shall be first defined as provided in this chapterarticle and, if not defined herein, shall be defined as in the latest edition of ‘The Illustrated Book of Development Definitions’ by Harvey S. Moskowitz and Carl G. Lindbloom, and if not defined in ‘The Illustrated Book of Development Definitions’, shall have their customary dictionary definitions. B. Words used in the present tense include the future tense; words used in the singular include the plural, and words used in the plural include the singular; the word “shall” is always mandatory, the word “person” includes a firm, association, organization, partnership, trust, corporation or company, as well as an individual; the word “lot” includes the words “plot” or “parcel”; the word “building” includes the word “structure”; the words “used” or “occupied,” as applied to any land or building, shall be construed to include the word “intended, arranged, or designed to be used or occupied”; the words “map” or “zoning map” mean the zoning map of the city that delineate the area to be governed by these regulations. C. For the purposes of this chaptertitle certain words and terms used herein are PROOFS Page 817 of 977 defined as follows: (Ord. No. 1645, § 18.80.010, 8-15-2005; Ord. No. 1693, § 29(18.80.010), 2-20-2007; Ord. No. 1761, exh. R(18.80.010), 7-6-2009) Sec. 38.42.020. Access or access way. The place, means or way by which pedestrians and vehicles shall have adequate and usable ingress and egress to property or use as required by this chaptertitle. (Ord. No. 1645, § 18.80.020, 8-15-2005; Ord. No. 1693, § 29(18.80.020), 2-20-2007; Ord. No. 1761, exh. R(18.80.020), 7-6-2009) Sec. 38.42.030. Accessory building or use. A subordinate building, or portion of the principal building, located on the same lot as the principal building, or a subordinate use of land, either of which is customarily incidental to the principal building or to the principal use of land. Where part of an accessory building is connected to part of the principal building by a common wall, such accessory building shall be counted as part of the principal building. Individual public utility installations above ground are considered accessory buildings. (Ord. No. 1645, § 18.80.030, 8-15-2005; Ord. No. 1693, § 29(18.80.030), 2-20-2007; Ord. No. 1761, exh. R(18.80.030), 7-6-2009) Sec. 38.42.040. Adaptive reuse. The development of a new use for an older building or for a building originally designed for a special or specific purpose. (Ord. No. 1755, § 4, 1-20-2009; Ord. No. 1761, exh. R(18.80.035), 7-6-2009) Sec. 38.42.050. Administrative design review (ADR) staff. Certain members of the planning staff charged with the design review, as defined in this chapterarticle, of certain plans and proposals as specified in this chaptertitle. The organization, composition and procedures of the administrative design review staff are subject to the requirements of chapter18.62, BMCarticle 33 of this chapter. (Ord. No. 1645, § 18.80.040, 8-15-2005; Ord. No. 1693, § 29(18.80.040), 2-20-2007; Ord. No. 1761, exh. R(18.80.040), 7-6-2009) Sec. 38.42.060. Adult business. An establishment which advertises, trades, exchanges, transfers, sells, presents, shows, offers or exhibits materials, activities, reproductions, likenesses, services and/or objects defined as obscene by MCA 45-8-201(2). Adult business as defined in this section shall include, but need not be limited to, adult bookstores, adult motion picture theaters, rap studios, massage parlors, exotic dance studios, nude art studios, nude photographic studios and nude body painting studios. (Ord. No. 1645, § 18.80.050, 8-15-2005; Ord. No. 1693, § 29(18.80.050), 2-20-2007; Ord. No. 1761, exh. R(18.80.050), 7-6-2009) Sec. 38.42.070. Affordable housing. Housing for persons earning less than 65 percent of the area’s annual median income for rental housing and 100 percent of the area’s annual median income for purchased housing. Further, affordable housing does not require greater than 30 percent of the household gross annual median income for housing. Annual median income is defined by the Department of Housing and Urban Development. Affordable housing is subject to the city’s affordable housing policy. (Ord. No. 1645, § 18.80.060, 8-15-2005; Ord. No. 1693, § 29(18.80.060), 2-20-2007; Ord. No. 1761, exh. R(18.80.060), 7-6-2009) PROOFS Page 818 of 977 Sec. 38.42.080. Aggrieved person. A person, as defined in this chapterarticle, who has a specific, personal and legal interest in the final decision of an agency, board or commission, as distinguished from a general interest such as is the concern of all members of the community, and which interest would be specifically and personally prejudiced by the decision or benefited by its reversal. (Ord. No. 1645, § 18.80.070, 8-15-2005; Ord. No. 1693, § 29(18.80.070), 2-20-2007; Ord. No. 1761, exh. R(18.80.070), 7-6-2009) Sec. 38.42.090. Agricultural activity. The cultivation or tilling of soil or use of other growing medium for the purpose of producing vegetative materials for sale or for use in a commercial operation and/or the raising or tending of animals for commercial sale or use. Agriculture does not include gardening for personal use, keeping of house pets or animals as authorized under title 6, BMC chapter 8, or landscaping for aesthetic purposes. (Ord. No. 1645, § 18.80.080, 8-15-2005; Ord. No. 1693, § 29(18.80.080), 2-20-2007; Ord. No. 1761, exh. R(18.80.080), 7-6-2009; Ord. No. 1767, § 3(18.80.080), 9-28-2009; Ord. No. 1786, § 9, 7-26-2010) Sec. 38.42.100. Agricultural water user facility. Those facilities, which include but are not limited to ditches, pipes, and other water-conveying facilities, which provide water for irrigation and stock watering on agricultural lands, with said lands being defined in MCA 15-7-202. (Ord. No. 1645, § 18.80.090, 8-15-2005; Ord. No. 1693, § 29(18.80.090), 2-20-2007; Ord. No. 1761, exh. R(18.80.090), 7-6-2009) Sec. 38.42.110. Alley. A permanent public thoroughfare providing a secondary means of access to abutting lands. (Ord. No. 1645, § 18.80.100, 8-15-2005; Ord. No. 1693, § 29(18.80.100), 2-20-2007; Ord. No. 1761, exh. R(18.80.100), 7-6-2009) Sec. 38.42.120. Aliquot part. An equal division of a government section in quarters as described by the Manual for the Survey of the Public Lands of the United States. (Ord. No. 1645, § 18.80.110, 8-15-2005; Ord. No. 1693, § 29(18.80.110), 2-20-2007; Ord. No. 1761, exh. R(18.80.110), 7-6-2009) Sec. 38.42.130. Alteration. Any act or process, except repair and light construction as defined herein, that changes one or more of the architectural features of a structure or site, including, but not limited to, the erection, construction, reconstruction, relocation of, or addition to a structure. The term “alteration” may apply to any act or process that changes the interior architectural features of that portion of a public or private property commonly frequented by the general public, provided said public or private property is located within a designated historic district or listed individually on the National Register of Historic Places. However, changes upon interior elements of private residences, regardless of their location or historic status, shall not be considered alterations as defined in this section. The term “alteration” further means any change or addition to a structure within a floodplain that either increases its exterior dimensions or increases its potential flood hazard. (Ord. No. 1645, § 18.80.120, 8-15-2005; Ord. No. 1693, § 29(18.80.120), 2-20-2007; Ord. No. 1761, exh. R(18.80.120), 7-6-2009) PROOFS Page 819 of 977 Sec. 38.42.140. Animal hospital. A place where animals or pets are given medical or surgical treatment and are cared for during the time of such treatment. Outside pens, kennels or runs are not permitted as part of an animal hospital operation. Short-term interior boarding is permitted. (Ord. No. 1645, § 18.80.130, 8-15-2005; Ord. No. 1693, § 29(18.80.130), 2-20-2007; Ord. No. 1761, exh. R(18.80.130), 7-6-2009) Sec. 38.42.150. Animated sign. A sign depicting action, motion, light, or color change, or that change the sign displayed through electrical or mechanical means. Excludes those signs defined as revolving signs. (Ord. No. 1780, § 3(18.80.135), 3-22-2010) Sec. 38.42.160. Antenna. One or more rods, panels, discs or similar devices used for the transmission or reception of radio frequency signals, which may include omnidirectional antenna (rod), directional antenna (panel) and parabolic antenna (disc). (Ord. No. 1645, § 18.80.140, 8-15-2005; Ord. No. 1693, § 29(18.80.140), 2-20-2007; Ord. No. 1761, exh. R(18.80.140), 7-6-2009) Sec. 38.42.170. Apartment. A habitable room or suite of two or more habitable rooms meeting the requirements of the city’s adopted International Building Code, located in an apartment building or used for residential purposes in nonresidential buildings located within nonresidential districts, as specified in this chaptertitle. Efficiency units shall qualify as an apartment under this definition. (Ord. No. 1645, § 18.80.150, 8-15-2005; Ord. No. 1693, § 29(18.80.150), 2-20-2007; Ord. No. 1761, exh. R(18.80.150), 7-6-2009) Sec. 38.42.180. Apartment building. A building other than a hotel or motel containing five or more dwelling units. (Ord. No. 1645, § 18.80.160, 8-15-2005; Ord. No. 1693, § 29(18.80.160), 2-20-2007; Ord. No. 1761, exh. R(18.80.160), 7-6-2009) Sec. 38.42.190. Appellant. An aggrieved person who has appealed the decision of an agency, board or commission to another body designated herein by the filing of a notice of appeal. (Ord. No. 1645, § 18.80.170, 8-15-2005; Ord. No. 1693, § 29(18.80.170), 2-20-2007; Ord. No. 1761, exh. R(18.80.170), 7-6-2009) Sec. 38.42.200. Applicant. The person who, or organization which, submitted the application to the agency, board or commission for approval, or the person who, or organization which, submitted the application to the agency, board or commission whose decision has been appealed. (Ord. No. 1645, § 18.80.180, 8-15-2005; Ord. No. 1693, § 29(18.80.180), 2-20-2007; Ord. No. 1761, exh. R(18.80.180), 7-6-2009) Sec. 38.42.210. Architectural appearance. The architectural character and general composition of a structure, including, but not limited to, the kind and texture of the building’s materials and the type, design and character of all windows, doors, light fixtures, signs and appurtenant exterior elements; and, interior architectural PROOFS Page 820 of 977 detail including, but not limited to, floors, fixtures, hardware, ornamentation and other elements that contribute to the building’s architectural or historical significance. (Ord. No. 1645, § 18.80.190, 8-15-2005; Ord. No. 1693, § 29(18.80.190), 2-20-2007; Ord. No. 1761, exh. R(18.80.190), 7-6-2009) Sec. 38.42.220. Area of special flood hazard. The land in the floodplain within the community subject to inundation by a one percent or greater chance of flooding in any given year, i.e., the 100-year floodplain. (Ord. No. 1645, § 18.80.200, 8-15-2005; Ord. No. 1693, § 29(18.80.200), 2-20-2007; Ord. No. 1761, exh. R(18.80.200), 7-6-2009) Sec. 38.42.230. Area of signs. The area of a sign that shall be computed by enclosing the entire area within any type of perimeter or border which may enclose the outer limits of any writing, representation, emblem, figure or character together with any other material or color forming an integral part of the display or used to differentiate such sign from a building on which it is placed. The area of a sign having no such perimeter shall be computed by enclosing the entire area within parallelograms, triangles, or circles in a size sufficient to cover the entire area of the sign copy and computing the size of such area. In the case of a two-sided sign, the area shall be computed as including only the maximum single display surface which is visible from any ground position at one time. If the angle between the two sign faces is greater than 45 degrees, the sign area will be the sum of the areas of the two faces. The supports or uprights on which any sign is supported should not be included in determining the sign area unless such supports or uprights are designed in such a manner as to form an integral background of the sign. In the case of any spherical, conical, or cylindrical sign, one-half of the total surface area shall be computed as the area of the sign. (Ord. No. 1645, § 18.80.210, 8-15-2005; Ord. No. 1693, § 29(18.80.210), 2-20-2007; Ord. No. 1761, exh. R(18.80.210), 7-6-2009) Sec. 38.42.240. Artificial lot. An area within a legally existing lot that is delineated by the planning director for the sole purpose of satisfying the landscaping requirements of this chaptertitle. (Ord. No. 1645, § 18.80.220, 8-15-2005; Ord. No. 1693, § 29(18.80.220), 2-20-2007; Ord. No. 1761, exh. R(18.80.220), 7-6-2009) Sec. 38.42.250. Artificial obstruction/development. Any obstruction which is not natural and includes any dam, diversion, wall, bank stabilization method, embankment, levee, dike, pile, abutment, projection, revetment, excavation, channel rectification, bridge, conduit, culvert, building, refuse, automobile body, fill or other analogous structure or matter in, along, across or projecting into any 100-year floodplain which may impede, retard or alter the pattern of flow of water, either in itself or by catching or collecting debris carried by the water, or that is placed where the natural flow of water would carry the same downstream to the damage or detriment of either life or property. (Ord. No. 1645, § 18.80.230, 8-15-2005; Ord. No. 1693, § 29(18.80.230), 2-20-2007; Ord. No. 1761, exh. R(18.80.230), 7-6-2009) Sec. 38.42.260. Arts center and/or entertainment center. A structure or facility for the presentation of the performing arts, including indoor motion picture theaters; theaters for live performances; indoor concert halls; and studios for arts education, such as dance or painting. Also includes entertainment activities such as arcades; PROOFS Page 821 of 977 bowling alleys or pool halls. The term “arts and entertainment center” does not include any business meeting the definition of adult business as defined by this chaptertitle. (Ord. No. 1645, § 18.80.240, 8-15-2005; Ord. No. 1693, § 29(18.80.240), 2-20-2007; Ord. No. 1761, exh. R(18.80.240), 7-6-2009) Sec. 38.42.270. Attached structure. A building sharing with one or more other buildings a common wall for not less than five feet. (Ord. No. 1645, § 18.80.245, 8-15-2005; Ord. No. 1693, § 29(18.80.245), 2-20-2007; Ord. No. 1761, exh. R(18.80.245), 7-6-2009) Sec. 38.42.280. Automobile fuel sales or repair. The use of a site for the direct sale of fuel to the end user, or for the repair of automobiles, noncommercial trucks, motorcycles, motor homes, recreational vehicles or boats. The term “automobile fuel sales or repair” includes the sale and on-site installation of parts, wheel and brake shops, body and fender shops, and similar repair and service activities, but excludes dismantling or salvage. (Ord. No. 1645, § 18.80.250, 8-15-2005; Ord. No. 1693, § 29(18.80.250), 2-20-2007; Ord. No. 1761, exh. R(18.80.250), 7-6-2009) Sec. 38.42.290. Automobile reduction yard. Any area of land where two or more motor vehicles not in running condition and/or two or more unlicensed motor vehicles, or parts thereof, are stored in the open and are not being restored to operation; or any land, building or structure used for the wrecking, dismantling, storage or abandonment of motor vehicles or parts thereof. (Ord. No. 1645, § 18.80.260, 8-15-2005; Ord. No. 1693, § 29(18.80.260), 2-20-2007; Ord. No. 1761, exh. R(18.80.260), 7-6-2009) Sec. 38.42.300. Auto salvage yard. A junkyard primarily containing inoperable vehicles for purposes of being dismantled and sold as parts. (Ord. No. 1645, § 18.80.270, 8-15-2005; Ord. No. 1693, § 29(18.80.270), 2-20-2007; Ord. No. 1761, exh. R(18.80.270), 7-6-2009) Sec. 38.42.310. Automobile washing establishment. A building which has its primary purpose as washing automobiles. Such facilities shall be considered incidental to automobile service stations if not more than one auto may be washed at one time and if the service station is clearly the principal use. (Ord. No. 1645, § 18.80.280, 8-15-2005; Ord. No. 1693, § 29(18.80.280), 2-20-2007; Ord. No. 1761, exh. R(18.80.280), 7-6-2009) Sec. 38.42.320. Awning. A roof-like structure, which is generally composed of a skeletal frame, covered in a fabric or other skin-type material, and typically opens on the bottom side, which projects beyond a building or extending along and projecting beyond the wall of the building. For the purposes of this chaptertitle a sign on an awning shall be considered to be a wall sign. (Ord. No. 1645, § 18.80.290, 8-15-2005; Ord. No. 1693, § 29(18.80.290), 2-20-2007; Ord. No. 1761, exh. R(18.80.290), 7-6-2009) PROOFS Page 822 of 977 Sec. 38.42.330. Banner. Any sign of lightweight fabric or similar material that is permanently mounted to a pole or a building by a permanent frame at one or more edges. A single one of each national, state or municipal flags, or the official flag of any institution or business shall not be considered banners. (Ord. No. 1645, § 18.80.300, 8-15-2005; Ord. No. 1693, § 29(18.80.300), 2-20-2007; Ord. No. 1761, exh. R(18.80.300), 7-6-2009) Sec. 38.42.340. Bar (tavern, cocktail lounge). An establishment where alcoholic beverages are served on premises and where the total sales of alcohol exceed the total sales of food. (Ord. No. 1645, § 18.80.310, 8-15-2005; Ord. No. 1693, § 29(18.80.310), 2-20-2007; Ord. No. 1761, exh. R(18.80.310), 7-6-2009) Sec. 38.42.350. Base flood344. A flood having a one percent chance of being equalled or exceeded in any given year. A base flood is the same as a 100-year flood. (Ord. No. 1645, § 18.80.320, 8-15-2005; Ord. No. 1693, § 29(18.80.320), 2-20-2007; Ord. No. 1761, exh. R(18.80.320), 7-6-2009) Sec. 38.42.360. Base flood elevation. The elevation above sea level of the base flood in relation to National Geodetic Vertical Datum of 1929345 unless otherwise specified in the flood hazard study. (Ord. No. 1645, § 18.80.330, 8-15-2005; Ord. No. 1693, § 29(18.80.330), 2-20-2007; Ord. No. 1761, exh. R(18.80.330), 7-6-2009) Sec. 38.42.370. Basement. A portion of a building located partly underground but having not less than half its floor-to- ceiling height below the average grade of the adjoining ground. (Ord. No. 1645, § 18.80.340, 8-15-2005; Ord. No. 1693, § 29(18.80.340), 2-20-2007; Ord. No. 1761, exh. R(18.80.340), 7-6-2009) Sec. 38.42.380. Beacon. Any light with one or more beams directed into the atmosphere or directed at one or more points not on the same zone lot as the light source; also, any light with one or more beams that rotate or move. (Ord. No. 1645, § 18.80.350, 8-15-2005; Ord. No. 1693, § 29(18.80.350), 2-20-2007; Ord. No. 1761, exh. R(18.80.350), 7-6-2009) 344 Compare with the following definition: Revise the following. 18.80.2120 ONE-HUNDRED YEAR FLOOD A flood having a one percent chance of being equalled or exceeded in any given year. A 100-year flood has nearly a 23 percent chance of occurring in a 25-year period. A 100- year flood is the same as a base flood. (Ord. No. 1645, § 18.80.2120, 8-15-2005; Ord. No. 1693, § 29(18.80.2120), 2-20-2007) 345 Most municipalities now use the NAVD 88 datum. 1929 is the correct year. We will consider removing the date reference under a future UDO edit. PROOFS Page 823 of 977 Sec. 38.42.390. Bed and breakfast home. A single-household dwelling which remains owner-occupied at all times providing one or more guest rooms for compensation, and where food service is limited to breakfast which may be served to overnight guests only. (Ord. No. 1645, § 18.80.360, 8-15-2005; Ord. No. 1693, § 29(18.80.360), 2-20-2007; Ord. No. 1761, exh. R(18.80.360), 7-6-2009) Sec. 38.42.400. Building. Any structure having enclosed space and a roof for the housing and/or enclosure of persons, animals or chattels. (Ord. No. 1645, § 18.80.370, 8-15-2005; Ord. No. 1693, § 29(18.80.370), 2-20-2007; Ord. No. 1761, exh. R(18.80.370), 7-6-2009) Sec. 38.42.410. Building area. The maximum horizontal projected area of the principal and accessory building, excluding open steps, terraces, and architectural appurtenances projecting not more than two feet. Building area, as that portion of a lot upon which construction is permitted, is that area of a lot that lies within the boundaries of the front, side and rear yard setback requirements measured from the actual lot line. (Ord. No. 1645, § 18.80.380, 8-15-2005; Ord. No. 1693, § 29(18.80.380), 2-20-2007; Ord. No. 1761, exh. R(18.80.380), 7-6-2009) Sec. 38.42.420. Building envelope. The three-dimensional volume on a lot lying between the front, side and rear yard setback lines and between ground level and the maximum allowable building height, amounting to the area available for potential building construction. (Ord. No. 1645, § 18.80.390, 8-15-2005; Ord. No. 1693, § 29(18.80.390), 2-20-2007; Ord. No. 1761, exh. R(18.80.390), 7-6-2009) Sec. 38.42.430. Building frontage. The maximum dimension of the building front measured on a straight line parallel to the street, but excluding facades facing alleys or driveways. (Ord. No. 1645, § 18.80.400, 8-15-2005; Ord. No. 1693, § 29(18.80.400), 2-20-2007; Ord. No. 1761, exh. R(18.80.400), 7-6-2009) Sec. 38.42.440. Building height. The vertical distance measured from grade as defined in this section to the highest point on the roof or parapet wall. Where a building utilizes multiple roof styles or pitches, the highest point of each type of roof or parapet wall shall be in conformance with applicable height regulations as established for the respective roof pitches in each zoning district. Where the vertical difference between grade as defined in this section is greater than two feet between opposite elevations of the building, the height of the building may be increased by one foot for every one foot in grade difference up to a maximum of six additional feet. (Ord. No. 1645, § 18.80.410, 8-15-2005; Ord. No. 1693, § 29(18.80.410), 2-20-2007; Ord. No. 1761, exh. R(18.80.410), 7-6-2009) Sec. 38.42.450. Building, principal. A building in which is conducted the main, or principal, use of the lot on which the building is situated. PROOFS Page 824 of 977 (Ord. No. 1645, § 18.80.420, 8-15-2005; Ord. No. 1693, § 29(18.80.420), 2-20-2007; Ord. No. 1761, exh. R(18.80.420), 7-6-2009) Sec. 38.42.460. Business. Engaging in the purchase, sale, barter or exchange of goods, wares, merchandise or services; the maintenance or operation of offices or recreational or amusement enterprises. (Ord. No. 1645, § 18.80.430, 8-15-2005; Ord. No. 1693, § 29(18.80.430), 2-20-2007; Ord. No. 1761, exh. R(18.80.430), 7-6-2009) Sec. 38.42.470. Canopy. Any open, permanent roof-like accessory structure which is not attached or part of a principal building. (Ord. No. 1645, § 18.80.440, 8-15-2005; Ord. No. 1693, § 29(18.80.440), 2-20-2007; Ord. No. 1761, exh. R(18.80.440), 7-6-2009) Sec. 38.42.480. Canopy tree. A species of tree which normally bears crown foliage no lower than six feet above ground level upon maturity. (Ord. No. 1645, § 18.80.450, 8-15-2005; Ord. No. 1693, § 29(18.80.450), 2-20-2007; Ord. No. 1761, exh. R(18.80.450), 7-6-2009) Sec. 38.42.490. Carport. A structure, open on at least two sides, consisting of a roof and either walls or columns for the purpose of housing automotive vehicles and other chattels. The structure shall be considered as an accessory building when detached from the principal building and as a part of the principal building when attached to the principal building along one or more sides of the carport or principal building. (Ord. No. 1645, § 18.80.460, 8-15-2005; Ord. No. 1693, § 29(18.80.460), 2-20-2007; Ord. No. 1761, exh. R(18.80.460), 7-6-2009) Sec. 38.42.500. Casino. A. An establishment whose primary use or activity is gambling, either in the form of gambling machines (video poker, keno, etc.), card games or other licensed gambling activity. A casino will normally have beverage and restaurant facilities as accessory uses. In all instances, an establishment will be considered a casino for the purpose of these regulations if any of the following characteristics apply: 1. The establishment is referenced as a casino by signage, advertisement or by name; 2. More than one card table is on the premises; and/or 3. 15 or more gambling machines are on the premises. B. An applicant for a casino establishment must obtain a Montana state license to sell alcoholic beverages for consumption on the premises. (Ord. No. 1645, § 18.80.470, 8-15-2005; Ord. No. 1693, § 29(18.80.470), 2-20-2007; Ord. No. 1761, exh. R(18.80.470), 7-6-2009) Sec. 38.42.510. Cemetery. Land used for the burial of the dead and dedicated for cemetery purposes, including crematories, mausoleums and mortuaries when operated in conjunction with and within the boundary of such cemetery. PROOFS Page 825 of 977 (Ord. No. 1645, § 18.80.480, 8-15-2005; Ord. No. 1693, § 29(18.80.480), 2-20-2007; Ord. No. 1761, exh. R(18.80.480), 7-6-2009) Sec. 38.42.520. Certificate of appropriateness. A permit issued by the pertinent review authority indicating its approval of plans to alter or construct a structure or alter a site within the Neighborhood Conservation Overlay District or Entryway Overlay District. (Ord. No. 1645, § 18.80.490, 8-15-2005; Ord. No. 1693, § 29(18.80.490), 2-20-2007; Ord. No. 1761, exh. R(18.80.490), 7-6-2009) Sec. 38.42.530. Certificate of survey. A drawing of a field survey prepared by a registered land surveyor for the purpose of disclosing facts pertaining to boundary locations. (Ord. No. 1645, § 18.80.500, 8-15-2005; Ord. No. 1693, § 29(18.80.500), 2-20-2007; Ord. No. 1761, exh. R(18.80.500), 7-6-2009) Sec. 38.42.540. Child. A person under 12 years of age. (Ord. No. 1645, § 18.80.510, 8-15-2005; Ord. No. 1693, § 29(18.80.510), 2-20-2007; Ord. No. 1761, exh. R(18.80.510), 7-6-2009) Sec. 38.42.550. Church. A building, together with its accessory buildings and uses, where persons regularly assemble for religious worship, and which building, together with its accessory buildings and uses, is maintained and controlled by a religious body organized to sustain public worship. (Ord. No. 1645, § 18.80.520, 8-15-2005; Ord. No. 1693, § 29(18.80.520), 2-20-2007; Ord. No. 1761, exh. R(18.80.520), 7-6-2009) Sec. 38.42.560. City346. The City of Bozeman. (Ord. No. 1645, § 18.80.530, 8-15-2005; Ord. No. 1693, § 29(18.80.530), 2-20-2007; Ord. No. 1761, exh. R(18.80.530), 7-6-2009) Sec. 38.42.570. City commission. The governing body of the City of Bozeman. (Ord. No. 1645, § 18.80.540, 8-15-2005; Ord. No. 1693, § 29(18.80.540), 2-20-2007; Ord. No. 1761, exh. R(18.80.540), 7-6-2009) Sec. 38.42.580. Civic use. Public buildings or uses, including, but not limited to, college/university facilities, congregate postal facilities, schools, government offices, libraries, assembly uses, police stations, and fire stations. (Ord. No. 1645, § 18.80.550, 8-15-2005; Ord. No. 1693, § 29(18.80.550), 2-20-2007; Ord. No. 1761, exh. R(18.80.550), 7-6-2009) 346 These two definitions are covered in title 1, but some cities prefer to keep the their zoning ords intact. Keep. PROOFS Page 826 of 977 Sec. 38.42.590. Club, private (nonprofit). A nonprofit association of persons who are bona fide members, paying annual dues, which owns, hires or leases a building, or a portion thereof, the use of such premises being restricted to members and their guests. (Ord. No. 1645, § 18.80.560, 8-15-2005; Ord. No. 1761, exh. R(18.80.560), 7-6-2009; Ord. No. 1761, exh. R(18.80.560), 7-6-2009) Sec. 38.42.600. Collocation. The placement of an antenna by two or more wireless service providers on a common antenna- supporting structure, or the addition or replacement of antennas on an existing structure. The term “collocation” does not include roof-mounted or surface-mounted wireless facilities or the placement of other antenna on an amateur radio antenna. (Ord. No. 1645, § 18.80.570, 8-15-2005; Ord. No. 1693, § 29(18.80.570), 2-20-2007; Ord. No. 1761, exh. R(18.80.570), 7-6-2009) Sec. 38.42.610. Commercial message. Any sign, wording, logo or other representation that directly or indirectly names, advertises or calls attention to a business, product, service or other commercial activity. (Ord. No. 1645, § 18.80.580, 8-15-2005; Ord. No. 1693, § 29(18.80.580), 2-20-2007; Ord. No. 1761, exh. R(18.80.580), 7-6-2009) Sec. 38.42.620. Commercial node. A. A commercial node is an area meeting all of the following conditions: 1. Designated as “community commercial” in the land use section of the city’s adopted growth policy; 2. Designated as a B-2 zoning district; and 3. Located in one of the four following locations: a. Northwest of the intersection of Stucky Road and South 19th Avenue to the limits as shown on the future land use map contained in the adopted growth policy, b. East of Highland Boulevard across from the Bozeman Deaconess Hospital to the limits as shown on the future land use map contained in the adopted growth policy, c. South of West Main Street across from the Gallatin Valley Mall to the limits as shown on the future land use map contained in the adopted growth policy, d. Northwest of the intersection of Baxter Lane and Davis Lane to the limits as shown on the future land use map contained in the adopted growth policy. (Ord. No. 1645, § 18.80.590, 8-15-2005; Ord. No. 1693, § 29(18.80.590), 2-20-2007; Ord. No. 1761, exh. R(18.80.590), 7-6-2009) Sec. 38.42.630. Common open space. Undeveloped land within a subdivision that has been designated, dedicated, reserved or restricted in perpetuity from further development and is set aside for the use and enjoyment by residents of the development. Common open space shall not be part of individual residential lots. It shall be substantially free of structures, but may contain historic structures and archaeological sites, and/or recreational facilities for residents, including but not limited to benches, picnic tables PROOFS Page 827 of 977 and interpretive signage as indicated on an approved development plan. Stormwater control facilities for the benefit of the subdivision may also be located within common open space. (Ord. No. 1645, § 18.80.600, 8-15-2005; Ord. No. 1693, § 29(18.80.600), 2-20-2007; Ord. No. 1761, exh. R(18.80.600), 7-6-2009) Sec. 38.42.640. Common ownership. Ownership by the same person, corporation, firm, entity, partnership or unincorporated association; or ownership by different corporations, firms, partnerships, or unincorporated association in which a stockbroker, partner, or associate, or a member of histhe owner’s family owns an interest in each corporation, firm, partnership, entity or unincorporated association. (Ord. No. 1645, § 18.80.610, 8-15-2005; Ord. No. 1693, § 29(18.80.610), 2-20-2007; Ord. No. 1761, exh. R(18.80.610), 7-6-2009) Sec. 38.42.650. Community center. A building or portion of a building used for nonprofit cultural, educational, recreational, religious or social activities which is open to the public or a designated part of the public, usually owned and operated by a public or nonprofit group or agency. Examples of community centers are schools, churches, Boys and Girls Clubs, and similar uses. Community center does not include fraternities, lodges or similar uses. (Ord. No. 1645, § 18.80.620, 8-15-2005; Ord. No. 1693, § 29(18.80.620), 2-20-2007; Ord. No. 1761, exh. R(18.80.620), 7-6-2009) Sec. 38.42.660. Community residential facility. A. A single residential structure having common kitchen facilities including: 1. Those occupied by persons having developmental disabilities and living together for the purpose of residential training, observation and/or common support, in which care is provided on a 24-hour per day basis; 2. A community group home for developmentally, mentally or severely disabled persons which does not provide skilled or intermediate nursing care; 3. A youth foster home or other facility for care of minors as defined in MCA 52-2-601 et seq.; 4. A halfway house operated in accordance with regulations of the state department of public health and human services for the rehabilitation of alcoholics or drug dependent persons; 5. A licensed adult foster care home; or 6. Any facility defined in MCA 76-2-411. Where a limitation of eight or fewer residents is imposed for the purpose of defining the necessary review process to establish this use, the operator of a residential facility, members of the operator’s household or persons employed as staff shall not be counted as residents, except that the total number of all persons living at the facility shall not exceed ten. (Ord. No. 1645, § 18.80.630, 8-15-2005; Ord. No. 1693, § 29(18.80.630), 2-20-2007; Ord. No. 1761, exh. R(18.80.630), 7-6-2009) State law reference—Application to governmental agencies group and foster homes, MCA 76-2-401 et seq. Sec. 38.42.670. Compatible development. The use of land and the construction and use of structures which is in harmony with adjoining development, existing neighborhoods, and the goals and objectives of the city’s adopted growth PROOFS Page 828 of 977 policy. Elements of compatible development include, but are not limited to, variety of architectural design; rhythm of architectural elements; scale; intensity; materials; building siting; lot and building size; hours of operation; and integration with existing community systems including water and sewer services, natural elements in the area, motorized and nonmotorized transportation, and open spaces and parks. Compatible development does not require uniformity or monotony of architectural or site design, density or use. (Ord. No. 1645, § 18.80.640, 8-15-2005; Ord. No. 1693, § 29(18.80.640), 2-20-2007; Ord. No. 1761, exh. R(18.80.640), 7-6-2009) Sec. 38.42.680. Compatible land use. A land use which may by virtue of the characteristics of its discernible outward effects exist in harmony with an adjoining land use of differing character. Effects often measured to determine compatibility include, but are not limited to, noise, odor, light and the presence of physical hazards such as combustible or explosive materials. (Ord. No. 1645, § 18.80.650, 8-15-2005; Ord. No. 1693, § 29(18.80.650), 2-20-2007; Ord. No. 1761, exh. R(18.80.650), 7-6-2009) Sec. 38.42.690. Conditional use. A public or private use as listed in this chaptertitle which, because of its unique characteristics, cannot be properly classified as a principal use or accessory use in a particular district. After consideration in each case of the impact of such use upon neighboring land, and of the public need for the particular use at the particular location, a permit for such conditional use may or may not be granted, with or without conditions, in addition to any condition specifically stated in this chaptertitle for any particular conditional use, including time limits, pursuant to the requirements of this chaptertitle. (Ord. No. 1645, § 18.80.660, 8-15-2005; Ord. No. 1693, § 29(18.80.660), 2-20-2007; Ord. No. 1761, exh. R(18.80.660), 7-6-2009) Sec. 38.42.700. Conditional use permit. Legal authorization to construct, develop or operate a conditional use as defined by this chaptertitle. (Ord. No. 1645, § 18.80.670, 8-15-2005; Ord. No. 1693, § 29(18.80.670), 2-20-2007; Ord. No. 1761, exh. R(18.80.670), 7-6-2009) Sec. 38.42.710. Conservation easement. The grant of a property right or interest from the property owner the public or nonprofit conservation organization stipulating that the described land shall remain in perpetuity in its natural and open state, precluding future or additional development (with the exception of any allowable structures or facilities). (Ord. No. 1645, § 18.80.680, 8-15-2005; Ord. No. 1693, § 29(18.80.680), 2-20-2007; Ord. No. 1761, exh. R(18.80.680), 7-6-2009) Sec. 38.42.720. Contiguous tract. For the purpose of these regulations, a parcel of land next to, abutting, adjoining or touching another individual parcel of land, including tracts which are separated by public right-of-way. (Ord. No. 1645, § 18.80.690, 8-15-2005; Ord. No. 1693, § 29(18.80.690), 2-20-2007; Ord. No. 1761, exh. R(18.80.690), 7-6-2009) Sec. 38.42.730. Construction. The act of adding to an existing structure or erecting a new principal or accessory structure. PROOFS Page 829 of 977 (Ord. No. 1645, § 18.80.700, 8-15-2005; Ord. No. 1693, § 29(18.80.700), 2-20-2007; Ord. No. 1761, exh. R(18.80.700), 7-6-2009) Sec. 38.42.740. Convenience food restaurant. A. An establishment whose principal business is the sale of foods, frozen desserts or nonalcoholic beverages to the consumer in a ready-to-eat state for consumption either within the premises or for carry-out with consumption either on or off the premises and whose design or principal method of operation includes both of the following characteristics: 1. Foods, frozen desserts or nonalcoholic beverages are usually served in edible containers or in paper, plastic or other disposable containers; 2. The customer is not served food at his/herthe customer’s table by an employee but receives it at a counter, window or similar facility for carrying to another location for consumption either on or off the premises. (Ord. No. 1645, § 18.80.710, 8-15-2005; Ord. No. 1693, § 29(18.80.710), 2-20-2007; Ord. No. 1761, exh. R(18.80.710), 7-6-2009) Sec. 38.42.750. Convenience use. A. Retail commercial uses which have relatively high traffic-generation rates per 1,000 square feet compared to other commercial uses. A use is designated as a convenience use if the method of operation includes one or more of the following characteristics: 1. Retail motor fuel is sold; 2. The primary business is the sale of food or drink for consumption, either on or off premises, over a counter, or from an outdoor service window or automobile service window. Of the food or drink sold, at least 20 percent is in disposable or carry-out containers; or 3. Drive-in and drive-through restaurants. (Ord. No. 1645, § 18.80.720, 8-15-2005; Ord. No. 1693, § 29(18.80.720), 2-20-2007; Ord. No. 1761, exh. R(18.80.720), 7-6-2009) Sec. 38.42.760. Cooperative household. A. Five or more persons who are granted a conditional use permit as a cooperative household pursuant to the terms of chapterarticle 18.3418 of this chaptertitle. A cooperative household exhibits four or more of the following characteristics: 1. A shared strong bond or common commitment to a single purpose, such as members of a religious order; 2. Are not legally dependent on others not living with them; 3. Can establish legal “domicile” as defined by state law; 4. Share a single household budget; 5. Share in the work of maintaining the premises; 6. Legally share in the ownership or possession of the premises, e.g., tenants in common on a deed or cosigners of a single lease; or 7. The relationship must be of a permanent and distinct character with a demonstrable and recognizable bond characteristic of a cohesive unit. B. Cooperative housing does not mean any society, club, fraternity, sorority, association, lodge, organization or group of students or other individuals with a common living arrangement or whose basis for the establishment of the housekeeping unit is temporary. PROOFS Page 830 of 977 (Ord. No. 1645, § 18.80.730, 8-15-2005; Ord. No. 1693, § 29(18.80.730), 2-20-2007; Ord. No. 1761, exh. R(18.80.730), 7-6-2009) Sec. 38.42.770. Covenant. An agreement that binds and restricts the land in the hands of present owners and subsequent purchasers with a view towards protecting and enhancing the physical, natural and economic integrity of an area. (Ord. No. 1645, § 18.80.740, 8-15-2005; Ord. No. 1693, § 29(18.80.740), 2-20-2007; Ord. No. 1761, exh. R(18.80.740), 7-6-2009) Sec. 38.42.780. Date of submission. The date at which the plat or plan and all required supplementary information is received and certified as complete by the planning department. (Ord. No. 1645, § 18.80.750, 8-15-2005; Ord. No. 1693, § 29(18.80.750), 2-20-2007; Ord. No. 1761, exh. R(18.80.750), 7-6-2009) Sec. 38.42.790. Day care center. A place in which supplemental care is provided to 13 or more nonresident persons on a regular basis and which is licensed by the state of Montana. (Ord. No. 1645, § 18.80.760, 8-15-2005; Ord. No. 1693, § 29(18.80.760), 2-20-2007; Ord. No. 1761, exh. R(18.80.760), 7-6-2009) Sec. 38.42.800. Day care home, family. A private residence in which supplemental care is provided to three to six nonresident persons from separate families on a regular basis and which is registered by the state of Montana. (Ord. No. 1645, § 18.80.770, 8-15-2005; Ord. No. 1693, § 29(18.80.770), 2-20-2007; Ord. No. 1761, exh. R(18.80.770), 7-6-2009) Sec. 38.42.810. Day care home, group. A private residence in which supplemental care is provided to seven to 12 nonresident persons on a regular basis and which is registered by the state of Montana. (Ord. No. 1645, § 18.80.780, 8-15-2005; Ord. No. 1693, § 29(18.80.780), 2-20-2007; Ord. No. 1761, exh. R(18.80.780), 7-6-2009) Sec. 38.42.820. Dedication. The deliberate appropriation of land by an owner for any general and public use, reserving no rights which are incompatible with the full exercise and enjoyment of the public use to which the property has been devoted. (Ord. No. 1645, § 18.80.790, 8-15-2005; Ord. No. 1693, § 29(18.80.790), 2-20-2007; Ord. No. 1761, exh. R(18.80.790), 7-6-2009) Sec. 38.42.830. Demolition. Any act or process that destroys, in part or whole, a structure or archaeological site. (Ord. No. 1645, § 18.80.800, 8-15-2005; Ord. No. 1693, § 29(18.80.800), 2-20-2007; Ord. No. 1761, exh. R(18.80.800), 7-6-2009) Sec. 38.42.840. Design review. The aesthetic evaluation of certain development proposals, including those located in the neighborhood conservation overlay district, entryway overlay district, and all planned unit developments and retail developments consisting of single-tenant buildings greater than 40,000 PROOFS Page 831 of 977 square feet relative to architectural, site, landscape, environmental, urban and other design matters as specified in this chaptertitle. (Ord. No. 1645, § 18.80.810, 8-15-2005; Ord. No. 1693, § 29(18.80.810), 2-20-2007; Ord. No. 1761, exh. R(18.80.810), 7-6-2009) Sec. 38.42.850. Design review board. That board created by chapter18.62article 33 of this chaptertitle and appointed by the city commission, charged with the design review, as defined in this chapterarticle, of certain plans and proposals as specified in this chaptertitle. (Ord. No. 1645, § 18.80.820, 8-15-2005; Ord. No. 1693, § 29(18.80.820), 2-20-2007; Ord. No. 1761, exh. R(18.80.820), 7-6-2009) Sec. 38.42.860. Development. Any manmade change to improve or alter real estate, including, but not limited to, subdivision of land, buildings or other structures, mining, dredging, filling, grading, paving, excavation or drilling operations. (Ord. No. 1645, § 18.80.830, 8-15-2005; Ord. No. 1693, § 29(18.80.830), 2-20-2007; Ord. No. 1761, exh. R(18.80.830), 7-6-2009) Sec. 38.42.870. Development envelopes. Areas on a lot within which grading, lawns, pavement and buildings will be located. (Ord. No. 1645, § 18.80.840, 8-15-2005; Ord. No. 1693, § 29(18.80.840), 2-20-2007; Ord. No. 1761, exh. R(18.80.840), 7-6-2009) Sec. 38.42.880. Development review committee. That committee created by chapter18.62, BMCarticle 33 of this chapter and charged with the expressed intent of reviewing designated plans and proposals. (Ord. No. 1645, § 18.80.850, 8-15-2005; Ord. No. 1693, § 29(18.80.850), 2-20-2007; Ord. No. 1761, exh. R(18.80.850), 7-6-2009) Sec. 38.42.890. Deviation. A modification of physical standards of this chaptertitle as applied to a specific piece of property located within the neighborhood conservation overlay district or entryway corridor overlay district. A deviation may be granted only by the city commission. (Ord. No. 1645, § 18.80.860, 8-15-2005; Ord. No. 1693, § 29(18.80.860), 2-20-2007; Ord. No. 1761, exh. R(18.80.860), 7-6-2009) Sec. 38.42.900. Division of land. The segregation of one or more parcels of land from a larger tract held in single or undivided ownership by transferring, or contracting to transfer, title to or possession of a portion of the tract, or properly filing a certificate of survey or subdivision plat establishing the identity of the segregated parcels pursuant to these subdivision regulations and the Montana Subdivision and Platting Act (MCA 76-3-101 et seq.). The conveyance of a tract of record or an entire parcel of land that was created by a previous division of land is not a division of land. (Ord. No. 1645, § 18.80.870, 8-15-2005; Ord. No. 1693, § 29(18.80.870), 2-20-2007; Ord. No. 1761, exh. R(18.80.870), 7-6-2009) PROOFS Page 832 of 977 Sec. 38.42.910. Directional sign. An on-premises sign which is intended to convey information regarding the location of specific features of the site or to convey on-premise regulations including traffic and circulation regulations. (Ord. No. 1645, § 18.80.880, 8-15-2005; Ord. No. 1693, § 29(18.80.880), 2-20-2007; Ord. No. 1761, exh. R(18.80.880), 7-6-2009) Sec. 38.42.920. Drive access. That area between the curb of a street, or edge of the traveled portion of a street when no curb exists, and the right-of-way/property line over which the city will permit vehicular travel from the traveled portion of a street to an individual property or off-street parking space. (Ord. No. 1645, § 18.80.890, 8-15-2005; Ord. No. 1693, § 29(18.80.890), 2-20-2007; Ord. No. 1761, exh. R(18.80.890), 7-6-2009) Sec. 38.42.930. Drive-in business. Any business in which people are provided a service or a product, where a sale is made without the customer being required to leave the vehicle. Such businesses include, but are not limited to, drive-in theater, drive-in bank, freestanding automated teller machine, drive-in laundry or dry cleaning pickup station, drive-in restaurant and any business offering take-home food services. (Ord. No. 1645, § 18.80.900, 8-15-2005; Ord. No. 1693, § 29(18.80.900), 2-20-2007; Ord. No. 1761, exh. R(18.80.900), 7-6-2009) Sec. 38.42.940. Dwelling. A building, or portion thereof, meeting the requirements of the city’s adopted International Building Code and used by one household, as defined by chapter18.80, BMC this article, for residential purposes. Dwelling occupancy duration is typically longer than 30 continuous days. Dwellings may exist in many configurations, including single-household, two-household, multiple- household dwellings and group homes. Dwellings do not include hotels, motels, extended stay lodgings or tourist homes. (Ord. No. 1645, § 18.80.910, 8-15-2005; Ord. No. 1693, § 29(18.80.910), 2-20-2007; Ord. No. 1761, exh. R(18.80.910), 7-6-2009) Sec. 38.42.950. Easement. A grant by a property owner to the public, a specific person or persons, other than the owner, for a right to use land for a specific purpose or purposes. (Ord. No. 1645, § 18.80.920, 8-15-2005; Ord. No. 1693, § 29(18.80.920), 2-20-2007; Ord. No. 1761, exh. R(18.80.920), 7-6-2009) Sec. 38.42.960. Efficiency unit. A dwelling unit containing only one habitable room as defined and regulated by the most recently adopted International Building Code. (Ord. No. 1645, § 18.80.930, 8-15-2005; Ord. No. 1693, § 29(18.80.930), 2-20-2007; Ord. No. 1761, exh. R(18.80.930), 7-6-2009) Sec. 38.42.970. Engineer (registered professional engineer). A person licensed in conformance with the Montana Professional Engineers Registration Act (MCA 37-67-101 through 37-67-332) to practice engineering in the state of Montana. (Ord. No. 1645, § 18.80.940, 8-15-2005; Ord. No. 1693, § 29(18.80.940), 2-20-2007; Ord. No. 1761, exh. R(18.80.940), 7-6-2009) PROOFS Page 833 of 977 Sec. 38.42.980. Engineering division department347. Engineering Division of the City of Bozeman’s Department of Public Service. (Ord. No. 1645, § 18.80.950, 8-15-2005; Ord. No. 1693, § 29(18.80.950), 2-20-2007; Ord. No. 1761, exh. R(18.80.950), 7-6-2009) Sec. 38.42.990. Essential services (Type I). Water pumping stations; stormwater drainage facilities (including collection lines, retention/detention ponds and drainageways); sanitary sewer and storm sewer lift stations; public domestic water storage facilities; water fill stations for firefighting equipment; local service telephone lines and cables; local service electrical distribution lines and cables; local service cable television lines; local service electronic data transmission lines and cables; water and sanitary sewer distribution and collection lines; and public and amateur radio antennae and towers. (Ord. No. 1645, § 18.80.960, 8-15-2005; Ord. No. 1693, § 29(18.80.960), 2-20-2007; Ord. No. 1761, exh. R(18.80.960), 7-6-2009) Sec. 38.42.1000. Essential services (Type II). Pipelines to transport gas, oil and coal (interstate and intrastate); electric substations; electrical transmission lines (interstate and intrastate); public supply facilities (electric and gas); public treatment facilities (water, sanitary sewer and storm sewer); telephone satellite community dial offices; telephone exchanges and repeater stations, except those facilities which may be considered wireless facilities; other accessory facilities, equipment and structures; and police and fire stations. (Ord. No. 1645, § 18.80.970, 8-15-2005; Ord. No. 1693, § 29(18.80.970), 2-20-2007; Ord. No. 1761, exh. R(18.80.970), 7-6-2009) Sec. 38.42.1010. Establish. To construct, place, insert or excavate. (Ord. No. 1645, § 18.80.980, 8-15-2005; Ord. No. 1693, § 29(18.80.980), 2-20-2007; Ord. No. 1761, exh. R(18.80.980), 7-6-2009) Sec. 38.42.1020. Evergreen tree or shrub. A tree or shrub of a species which normally retains its leaves/needles throughout the year. (Ord. No. 1645, § 18.80.990, 8-15-2005; Ord. No. 1693, § 29(18.80.990), 2-20-2007; Ord. No. 1761, exh. R(18.80.990), 7-6-2009) Sec. 38.42.1030. Existing manufactured home park or subdivision. A manufactured home park or subdivision where the construction of facilities for servicing the manufactured home lots is completed before the effective date of the floodplain management regulations. This includes, at a minimum, the installation of utilities, the construction of streets, and either final site grading or the pouring of concrete pads. (Ord. No. 1645, § 18.80.1000, 8-15-2005; Ord. No. 1693, § 29(18.80.1000), 2-20-2007; Ord. No. 1761, exh. R(18.80.1000), 7-6-2009) Sec. 38.42.1040. Extended stay lodgings. Guest rooms intended or designed to be used, or which are used, rented or hired out to be occupied, or which are occupied for sleeping purposes for guests and contain kitchen facilities for food preparation, including, but not limited to, such facilities as refrigerators, stoves and ovens. 347 Why call it a department if it is a division? The item is noted for future correction. PROOFS Page 834 of 977 Generally an individual guest will not exceed 30 days stay. This definition includes dwelling units used, rented or hired out for vacation homes. (Ord. No. 1645, § 18.80.1010, 8-15-2005; Ord. No. 1693, § 29(18.80.1010), 2-20-2007; Ord. No. 1761, exh. R(18.80.1010), 7-6-2009) Sec. 38.42.1050. Final decision. The final action of an agency, board or commission when no further action is available before such agency, board or commission. (Ord. No. 1645, § 18.80.1020, 8-15-2005; Ord. No. 1693, § 29(18.80.1020), 2-20-2007; Ord. No. 1761, exh. R(18.80.1020), 7-6-2009) Sec. 38.42.1060. Final plat. The final drawing of a subdivision and dedication required by this chaptertitle and the Montana Subdivision and Platting Act to be prepared for filing for record with the clerk and recorder, and containing all elements and requirements set forth in this chaptertitle and the Montana Subdivision and Platting. (Ord. No. 1645, § 18.80.1030, 8-15-2005; Ord. No. 1693, § 29(18.80.1030), 2-20-2007; Ord. No. 1761, exh. R(18.80.1030), 7-6-2009) Sec. 38.42.1070. Final site plan. The final scale drawings of a preliminarily approved development and any other required information, the approval of which by the planning director indicates that the required conditions for approval have been met. (Ord. No. 1645, § 18.80.1040, 8-15-2005; Ord. No. 1693, § 29(18.80.1040), 2-20-2007; Ord. No. 1761, exh. R(18.80.1040), 7-6-2009) Sec. 38.42.1080. Flood or flooding. A general and temporary condition of partial or complete inundation of normally dry lands from the overflow of a stream, or the unusual and rapid accumulation or runoff of surface waters from any source. (Ord. No. 1645, § 18.80.1050, 8-15-2005; Ord. No. 1693, § 29(18.80.1050), 2-20-2007; Ord. No. 1761, exh. R(18.80.1050), 7-6-2009) Sec. 38.42.1090. Flood insurance rate map. The map on which FEMA has delineated both the 100-year floodplains and the risk premium zones. (Ord. No. 1645, § 18.80.1060, 8-15-2005; Ord. No. 1693, § 29(18.80.1060), 2-20-2007; Ord. No. 1761, exh. R(18.80.1060), 7-6-2009) Sec. 38.42.1100. Flood insurance study. The report in which FEMA has provided flood profiles, as well as the Flood Boundary/Floodway Map and the water surface profiles. (Ord. No. 1645, § 18.80.1070, 8-15-2005; Ord. No. 1693, § 29(18.80.1070), 2-20-2007; Ord. No. 1761, exh. R(18.80.1070), 7-6-2009) Sec. 38.42.1110. Floodplain. Areas generally adjoining a stream that would be covered by floodwater of a 100-year flood except for designated shallow flooding areas that receive less than one foot of water per occurrence. The floodplain consists of a floodway and floodway fringe. Floodplain regulations are found in chapter18.58, BMCarticle 31 of this chapter. PROOFS Page 835 of 977 (Ord. No. 1645, § 18.80.1080, 8-15-2005; Ord. No. 1693, § 29(18.80.1080), 2-20-2007; Ord. No. 1761, exh. R(18.80.1080), 7-6-2009) Sec. 38.42.1120. Floodplain Act. The Montana Floodplain and Floodway Management Act, MCA 76-5-101 et seq. (Ord. No. 1645, § 18.80.1090, 8-15-2005; Ord. No. 1693, § 29(18.80.1090), 2-20-2007; Ord. No. 1761, exh. R(18.80.1090), 7-6-2009) Sec. 38.42.1130. Floodway. The channel of a stream and the adjacent overbank areas that must be reserved in order to discharge a base flood (100-year flood) without cumulatively increasing the water surface elevation more than one-half foot. (Ord. No. 1645, § 18.80.1100, 8-15-2005; Ord. No. 1693, § 29(18.80.1100), 2-20-2007; Ord. No. 1761, exh. R(18.80.1100), 7-6-2009) Sec. 38.42.1140. Floodway fringe. The portion of the floodplain that is outside the limits of the floodway. (Ord. No. 1645, § 18.80.1110, 8-15-2005; Ord. No. 1693, § 29(18.80.1110), 2-20-2007; Ord. No. 1761, exh. R(18.80.1110), 7-6-2009) Sec. 38.42.1150. Food processing facility. A facility in which food is processed or otherwise prepared for eventual human consumption, but not consumed on the premises. (Ord. No. 1645, § 18.80.1120, 8-15-2005; Ord. No. 1693, § 29(18.80.1120), 2-20-2007; Ord. No. 1761, exh. R(18.80.1120), 7-6-2009) Sec. 38.42.1160. Footcandle. A unit of light intensity stated in lumens per square foot and measurable with an illuminance meter. (Ord. No. 1645, § 18.80.1130, 8-15-2005; Ord. No. 1693, § 29(18.80.1130), 2-20-2007; Ord. No. 1761, exh. R(18.80.1130), 7-6-2009) Sec. 38.42.1170. Freestanding sign. Any sign supported by structures or supports that are placed on, or anchored in, the ground and that are independent from any building or other structure. (Ord. No. 1645, § 18.80.1140, 8-15-2005; Ord. No. 1693, § 29(18.80.1140), 2-20-2007; Ord. No. 1761, exh. R(18.80.1140), 7-6-2009) Sec. 38.42.1180. Front line of building. The line of the face of a building nearest the front lot line. (Ord. No. 1645, § 18.80.1150, 8-15-2005; Ord. No. 1693, § 29(18.80.1150), 2-20-2007; Ord. No. 1761, exh. R(18.80.1150), 7-6-2009) Sec. 38.42.1190. Front yard. A yard extending across the full width of the lot between two side lot lines, the depth of which is the least distance between the street right-of-way and the front building line. (Ord. No. 1645, § 18.80.1160, 8-15-2005; Ord. No. 1693, § 29(18.80.1160), 2-20-2007; Ord. No. 1761, exh. R(18.80.1160), 7-6-2009) PROOFS Page 836 of 977 Sec. 38.42.1200. Garage, private. A detached accessory building, or portion of a main building, designed or primarily used for the storage of self-propelled vehicles for the household housed in the building to which such garage is accessory. (Ord. No. 1645, § 18.80.1170, 8-15-2005; Ord. No. 1693, § 29(18.80.1170), 2-20-2007; Ord. No. 1761, exh. R(18.80.1170), 7-6-2009) Sec. 38.42.1210. Garage, public. Any building or premises, except those defined herein as a private garage, used for the storage or care of motor vehicles; or where such vehicles are equipped for operation, repaired or kept for rental, hire or sale. (Ord. No. 1645, § 18.80.1180, 8-15-2005; Ord. No. 1693, § 29(18.80.1180), 2-20-2007; Ord. No. 1761, exh. R(18.80.1180), 7-6-2009) Sec. 38.42.1220. Glare. The sensation produced by lighting that causes an annoyance, discomfort or loss in visual performance and visibility to the eye. (Ord. No. 1645, § 18.80.1190, 8-15-2005; Ord. No. 1693, § 29(18.80.1190), 2-20-2007; Ord. No. 1761, exh. R(18.80.1190), 7-6-2009) Sec. 38.42.1230. Governing body348 The governing authority of a city or town organized pursuant to law. In the city of Bozeman, the city commission is the governing authority. (Ord. No. 1645, § 18.80.1200, 8-15-2005; Ord. No. 1693, § 29(18.80.1200), 2-20-2007; Ord. No. 1761, exh. R(18.80.1200), 7-6-2009) Sec. 38.42.1240. Grade. The lowest point of elevation of the finished surface of the ground between the exterior wall of a building and a point five feet distance from the wall, or the lowest point of elevation of the finished surface of the ground between the exterior wall of the building and the property line if it is less than five feet distance from the wall. If walls are parallel to and within five feet of a public sidewalk, alley or other public way, the grade shall be the elevation of the sidewalk, alley or public way. The term “finished surface of the ground” shall not include window wells, stairwells or other similar features, but shall include features such as usable patio areas. (Ord. No. 1645, § 18.80.1210, 8-15-2005; Ord. No. 1693, § 29(18.80.1210), 2-20-2007; Ord. No. 1761, exh. R(18.80.1210), 7-6-2009) Sec. 38.42.1250. Green. An open space available for unstructured recreation, with landscaping consisting of maintained grassy areas, trees and other vegetation. (Ord. No. 1645, § 18.80.1220, 8-15-2005; Ord. No. 1693, § 29(18.80.1220), 2-20-2007; Ord. No. 1761, exh. R(18.80.1220), 7-6-2009) Sec. 38.42.1260. Greenhouse. A building or structure constructed chiefly of glass, glass-like translucent material, cloth, lath or similar materials which is devoted to the protection or cultivation of flowers or other plants. 348 Can I just use “city commission?” No, governing body is the term used in statute. PROOFS Page 837 of 977 (Ord. No. 1645, § 18.80.1230, 8-15-2005; Ord. No. 1693, § 29(18.80.1230), 2-20-2007; Ord. No. 1761, exh. R(18.80.1230), 7-6-2009) Sec. 38.42.1270. Ground floor area. The square foot area of a building within its largest outside dimension computed on a horizontal plane at the ground floor level, exclusive of open porches, breezeways, terraces, garages, exterior stairways and secondary stairways. (Ord. No. 1645, § 18.80.1240, 8-15-2005; Ord. No. 1693, § 29(18.80.1240), 2-20-2007; Ord. No. 1761, exh. R(18.80.1240), 7-6-2009) Sec. 38.42.1280. Gross acreage. The total area of a parcel including the area of perimeter street rights-of-way to the centerline of the street. (Ord. No. 1645, § 18.80.1250, 8-15-2005; Ord. No. 1693, § 29(18.80.1250), 2-20-2007; Ord. No. 1761, exh. R(18.80.1250), 7-6-2009) Sec. 38.42.1290. Gross density. The number of residential dwelling units per unit of land used for residential purposes, with the term “unit of land” being the gross residential acreage. (Ord. No. 1645, § 18.80.1260, 8-15-2005; Ord. No. 1693, § 29(18.80.1260), 2-20-2007; Ord. No. 1761, exh. R(18.80.1260), 7-6-2009) Sec. 38.42.1300. Groundcover. Natural mulch or plants of species which normally reach a height of less than two feet upon maturity, installed in such a manner so as to form a continuous cover over the ground. (Ord. No. 1645, § 18.80.1270, 8-15-2005; Ord. No. 1693, § 29(18.80.1270), 2-20-2007; Ord. No. 1761, exh. R(18.80.1270), 7-6-2009) Sec. 38.42.1310. Growth policy. An official public document adopted and used by a local government as a general guide for development and conservation decisions. It is not a regulation; rather, it is an official statement of public policy to guide growth and change. The required and optional elements of a growth policy are listed in MCA 76-1-601. (Ord. No. 1645, § 18.80.1280, 8-15-2005; Ord. No. 1693, § 29(18.80.1280), 2-20-2007; Ord. No. 1761, exh. R(18.80.1280), 7-6-2009) Sec. 38.42.1320. Guest house. An attached or detached accessory building used to house guests of the occupants of the principal building, and which is never rented or offered for rent. Any guest house providing cooking facilities (e.g., full-size dishwasher, more than a bar sink, or a stove) shall be considered a dwelling unit. (Ord. No. 1645, § 18.80.1290, 8-15-2005; Ord. No. 1693, § 29(18.80.1290), 2-20-2007; Ord. No. 1761, exh. R(18.80.1290), 7-6-2009) Sec. 38.42.1330. Health authorities. The state department of environmental quality, local environmental health specialist or other authorized representative. (Ord. No. 1645, § 18.80.1300, 8-15-2005; Ord. No. 1693, § 29(18.80.1300), 2-20-2007; Ord. No. 1761, exh. R(18.80.1300), 7-6-2009) PROOFS Page 838 of 977 Sec. 38.42.1340. Health and exercise establishments. An establishment designed and equipped for the conduct of sports, exercise activities and other customary and usual recreational activities, including tennis, racquetball, handball and squash courts, martial arts, gymnastics, weight and aerobic exercise rooms, running facilities, swimming pools, yoga, sport dancing, and whirlpool and sauna facilities. Permitted accessory uses shall include child care, suntanning booths, massage, health and nutrition counseling services, retail sales of sporting goods and restaurant services. (Ord. No. 1645, § 18.80.1310, 8-15-2005; Ord. No. 1693, § 29(18.80.1310), 2-20-2007; Ord. No. 1761, exh. R(18.80.1310), 7-6-2009) Sec. 38.42.1350. Height of low profile sign. The vertical distance between the finished grade and the highest component of the sign. (Ord. No. 1645, § 18.80.1320, 8-15-2005; Ord. No. 1693, § 29(18.80.1320), 2-20-2007; Ord. No. 1761, exh. R(18.80.1320), 7-6-2009) Sec. 38.42.1360. Height of pole style sign. The vertical distance between the elevation of the adjacent street curb, or edge of pavement, if no curb exists, to the highest attached component of the sign. In the event that the finished grade of the sign location is higher, or lower, than the adjacent street curb or edge of pavement, the height shall be determined as the vertical distance from the median elevation between the adjacent street curb or edge of pavement and the lowest finished grade at the base of the sign to the highest attached component of the sign. (Ord. No. 1645, § 18.80.1330, 8-15-2005; Ord. No. 1693, § 29(18.80.1330), 2-20-2007; Ord. No. 1761, exh. R(18.80.1330), 7-6-2009) Sec. 38.42.1370. Historic site. The location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined or vanished, where the location itself possesses significant historic, cultural or archaeological value. The value of a site shall be based on the ability of the site to meet the eligibility requirements for historical significance as described by the National Register of Historic Places. (Ord. No. 1645, § 18.80.1340, 8-15-2005; Ord. No. 1693, § 29(18.80.1340), 2-20-2007; Ord. No. 1761, exh. R(18.80.1340), 7-6-2009) Sec. 38.42.1380. Home-based business. Any business, occupation or activity undertaken for gain within a residential structure that is incidental and secondary to the use of that structure as a dwelling. Home based businesses are subject to the requirements of this chaptertitle. (Ord. No. 1645, § 18.80.1350, 8-15-2005; Ord. No. 1693, § 29(18.80.1350), 2-20-2007; Ord. No. 1761, exh. R(18.80.1350), 7-6-2009) Sec. 38.42.1390. Home office. An accessory use in which work for compensation is undertaken, including, but not limited to, receiving or initiating correspondence, such as phone calls, mail, faxes or email; preparing or maintaining business records; word and data processing; and telephone, mail order and off- premises sales. (Ord. No. 1645, § 18.80.1360, 8-15-2005; Ord. No. 1693, § 29(18.80.1360), 2-20-2007; Ord. No. 1761, exh. R(18.80.1360), 7-6-2009) PROOFS Page 839 of 977 Sec. 38.42.1400. Hospital. An institution for the diagnosis, treatment or other cure of human ailments and which may include a sanitarium or clinic, provided such institution is operated by, or treatment is given, under direct supervision of a physician licensed to practice by the state of Montana. (Ord. No. 1645, § 18.80.1370, 8-15-2005; Ord. No. 1693, § 29(18.80.1370), 2-20-2007; Ord. No. 1761, exh. R(18.80.1370), 7-6-2009) Sec. 38.42.1410. Hotel or motel. A building or a group of buildings in which lodging is provided and offered to transient guests for compensation; the term “hotel or motel” shall not include a boardinghouse, extended stay lodgings, lodginghouse or roominghouse. (Ord. No. 1645, § 18.80.1380, 8-15-2005; Ord. No. 1693, § 29(18.80.1380), 2-20-2007; Ord. No. 1761, exh. R(18.80.1380), 7-6-2009) Sec. 38.42.1420. Household. A. A person living alone, or any of the following groups living together as a single nonprofit housekeeping unit and sharing common living, sleeping, cooking and eating facilities: 1. Any number of people related by blood, marriage, adoption, guardianship or other duly-authorized custodial relationship; 2. Not more than four unrelated people, including persons enrolled in an institution of higher learning; 3. Two unrelated people and any children related to either of them; or 4. Not more than four people who are: a. Residents of a “Community Residential Facility” as defined in MCA 76-2-411 et seq. and this chaptertitle; or b. “Handicapped” as defined in the Fair Housing Act, 42 USC 3602(h). This definition does not include those persons currently illegally using or addicted to a “controlled substance” as defined in the Controlled Substances Act, 21 USC 802(6). 5. “Household” does not include: a. Any society, club, fraternity, sorority, association, lodge, combine, federation, coterie, cooperative housing or like organization; b. Any group of individuals whose association is temporary or seasonal in nature; or c. Any group of individuals who are in a group living arrangement as a result of criminal offenses. (Ord. No. 1645, § 18.80.1390, 8-15-2005; Ord. No. 1693, § 29(18.80.1390), 2-20-2007; Ord. No. 1761, exh. R(18.80.1390), 7-6-2009) Sec. 38.42.1430. Illuminance. The quantity of light measured in footcandles or lux. The density of the luminous flux incident on a surface; it is the quotient of the luminous flux by the area of the surface when the latter is uniformly illuminated. (Ord. No. 1645, § 18.80.1400, 8-15-2005; Ord. No. 1693, § 29(18.80.1400), 2-20-2007; Ord. No. 1761, exh. R(18.80.1400), 7-6-2009) PROOFS Page 840 of 977 Sec. 38.42.1440. Immediate family. A spouse, children by blood or adoption, and parents. (Ord. No. 1645, § 18.80.1410, 8-15-2005; Ord. No. 1693, § 29(18.80.1410), 2-20-2007; Ord. No. 1761, exh. R(18.80.1410), 7-6-2009) Sec. 38.42.1450. Incidental. Any action or use of less importance, or secondary to, any other action or use. (Ord. No. 1645, § 18.80.1420, 8-15-2005; Ord. No. 1693, § 29(18.80.1420), 2-20-2007; Ord. No. 1761, exh. R(18.80.1420), 7-6-2009) Sec. 38.42.1460. Incidental sign. A sign, generally informational, that has a purpose secondary to the use of the zone lot on which it is located, such as “no parking,” “entrance,” “loading only,” “telephone,” and other similar directives. No sign with a commercial message, which is designed with the intent to be legible from a position off the zone lot on which the sign is located, shall be considered incidental. (Ord. No. 1645, § 18.80.1430, 8-15-2005; Ord. No. 1693, § 29(18.80.1430), 2-20-2007; Ord. No. 1761, exh. R(18.80.1430), 7-6-2009) Sec. 38.42.1470. Industry, heavy. An industry whose processing of products results in the emission of any atmospheric pollutant, light flashes, glare, odor, noise or vibration which may be heard and/or felt off the premises and an industry which constitutes a fire or explosion hazard. (Ord. No. 1645, § 18.80.1440, 8-15-2005; Ord. No. 1693, § 29(18.80.1440), 2-20-2007; Ord. No. 1761, exh. R(18.80.1440), 7-6-2009) Sec. 38.42.1480. Industry, light. An industry whose processing of products results in none of the conditions described for heavy industry. (Ord. No. 1645, § 18.80.1450, 8-15-2005; Ord. No. 1693, § 29(18.80.1450), 2-20-2007; Ord. No. 1761, exh. R(18.80.1450), 7-6-2009) Sec. 38.42.1490. Interchange zone. Districts created for the purpose of allowing larger and/or additional signage for the areas adjacent to the Interstate 90 interchanges at East Main Street, North 7th Avenue and North 19th Avenue which are located within the Entryway Overlay District, B-2 Zoning District and within 1,300 feet of the Interstate 90 right-of-way. (Ord. No. 1645, § 18.80.1460, 8-15-2005; Ord. No. 1693, § 29(18.80.1460), 2-20-2007; Ord. No. 1761, exh. R(18.80.1460), 7-6-2009) Sec. 38.42.1500. Irregularly shaped tract of land. A parcel of land other than an aliquot part of the United States Government survey section or a United States lot, the boundaries or areas of which cannot be determined without a survey or trigonometric calculation. (Ord. No. 1645, § 18.80.1470, 8-15-2005; Ord. No. 1693, § 29(18.80.1470), 2-20-2007; Ord. No. 1761, exh. R(18.80.1470), 7-6-2009) Sec. 38.42.1510. Landmark. A site, structure or object designated as a “landmark” pursuant to the procedures prescribed in chapter18.28, BMCarticle 16 of this chapter, that is worthy of preservation, restoration or rehabilitation because of its historic land planning or architectural significance and officially PROOFS Page 841 of 977 recognized through listing in the National Register of Historic Places. A landmark shall be subject to all neighborhood conservation overlay district procedures and requirements. (Ord. No. 1645, § 18.80.1480, 8-15-2005; Ord. No. 1693, § 29(18.80.1480), 2-20-2007; Ord. No. 1761, exh. R(18.80.1480), 7-6-2009) Sec. 38.42.1520. Landscape architect. A person licensed to practice landscape architecture in the state. (Ord. No. 1645, § 18.80.1490, 8-15-2005; Ord. No. 1693, § 29(18.80.1490), 2-20-2007; Ord. No. 1761, exh. R(18.80.1490), 7-6-2009) Sec. 38.42.1530. Landscaping. At least 75 percent coverage of an area with natural grass, vegetative groundcover or other natural living plant materials, the remainder of which is covered with nonvegatative decorative landscape design elements such as washed rock, lava rock, bark chips and ornamental features such as pools, fountains, benches, etc. For purposes of this chaptertitle, the term landscaping shall be considered to have the same meaning as the terms “landscape,” “landscaped” and “landscaped area.” (Ord. No. 1645, § 18.80.1500, 8-15-2005; Ord. No. 1693, § 29(18.80.1500), 2-20-2007; Ord. No. 1761, exh. R(18.80.1500), 7-6-2009) Sec. 38.42.1540. Large scale wireless facility. A wireless facility 25 feet or greater in height from the base to the highest point including attachments. Examples of supporting structures are monopoles, self supporting (lattice) towers, guy-wire supported towers and other similar structures. When calculating the height of a facility, other structures designed for other uses such as buildings or water towers shall not be included in the calculation. Some illustrated examples of large scale wireless facilities are shown in Appendix A to this chapter. (Ord. No. 1645, § 18.80.1510, 8-15-2005; Ord. No. 1693, § 29(18.80.1510), 2-20-2007; Ord. No. 1761, exh. R(18.80.1510), 7-6-2009) Sec. 38.42.1550. Large shrub. A shrub which normally reaches a height of five feet or more upon maturity, and usually has five or more canes. (Ord. No. 1645, § 18.80.1520, 8-15-2005; Ord. No. 1693, § 29(18.80.1520), 2-20-2007; Ord. No. 1761, exh. R(18.80.1520), 7-6-2009) Sec. 38.42.1560. Large tree. A tree of a species which normally reaches a height of 25 feet or more upon maturity, and usually has a single stem. (Ord. No. 1645, § 18.80.1530, 8-15-2005; Ord. No. 1693, § 29(18.80.1530), 2-20-2007; Ord. No. 1761, exh. R(18.80.1530), 7-6-2009) Sec. 38.42.1570. Levee. A manmade embankment, usually earthen, designed and constructed in accordance with sound engineering practices to contain, control or divert the flow of water to provide protection from temporary flooding. (Ord. No. 1645, § 18.80.1540, 8-15-2005; Ord. No. 1693, § 29(18.80.1540), 2-20-2007; Ord. No. 1761, exh. R(18.80.1540), 7-6-2009) PROOFS Page 842 of 977 Sec. 38.42.1580. Levee system. A flood protection system that consists of a levee, or levees, and associated structures, such as drainage and closure devices, which are constructed and operated in accordance with sound engineering practices. (Ord. No. 1645, § 18.80.1550, 8-15-2005; Ord. No. 1693, § 29(18.80.1550), 2-20-2007; Ord. No. 1761, exh. R(18.80.1550), 7-6-2009) Sec. 38.42.1590. Light construction. Any change not construed as an alteration or repair, including paving of established driving and parking areas (subject to the requirements of chapter18.46, BMCarticle 25 of this chapter); construction of patios not greater than 120 square feet in size; construction of sidewalks not wider than five feet; and landscaping (but not including major changes in grading or site surface drainage). (Ord. No. 1645, § 18.80.1560, 8-15-2005; Ord. No. 1693, § 29(18.80.1560), 2-20-2007; Ord. No. 1761, exh. R(18.80.1560), 7-6-2009) Sec. 38.42.1600. Light goods repair. Establishments primarily engaged in the provision of repair services to individuals and households as well as businesses, but excluding automotive, boat and similar intensive repair use types. Typical uses include, but are not limited to, the repair of appliances, shoes or clothing, watches or jewelry, instruments, office equipment or electronics. (Ord. No. 1645, § 18.80.1570, 8-15-2005; Ord. No. 1693, § 29(18.80.1570), 2-20-2007; Ord. No. 1761, exh. R(18.80.1570), 7-6-2009) Sec. 38.42.1610. Light source. A single artificial point source of light that emits measurable radiant energy in or near the visible spectrum. (Ord. No. 1645, § 18.80.1580, 8-15-2005; Ord. No. 1693, § 29(18.80.1580), 2-20-2007; Ord. No. 1761, exh. R(18.80.1580), 7-6-2009) Sec. 38.42.1620. Light trespass. Light emitted by a lighting installation that extends beyond the boundaries of the property on which the installation is sited. (Ord. No. 1645, § 18.80.1590, 8-15-2005; Ord. No. 1693, § 29(18.80.1590), 2-20-2007; Ord. No. 1761, exh. R(18.80.1590), 7-6-2009) Sec. 38.42.1630. Limited access. A way or means of allowing physical entrance to land at controlled locations or points. A “no access” strip or line may be placed on a plat as a means of limiting access. (Ord. No. 1645, § 18.80.1600, 8-15-2005; Ord. No. 1693, § 29(18.80.1600), 2-20-2007; Ord. No. 1761, exh. R(18.80.1600), 7-6-2009) Sec. 38.42.1640. Limited access roadway. A street or road especially designed for through traffic, over which abutting landowners have no right to direct access. (Ord. No. 1645, § 18.80.1610, 8-15-2005; Ord. No. 1693, § 29(18.80.1610), 2-20-2007; Ord. No. 1761, exh. R(18.80.1610), 7-6-2009) PROOFS Page 843 of 977 Sec. 38.42.1650. Local services. All services provided by governmental bodies for the benefit of citizens. These services include, but are not limited to, police, fire, water, recreation, streets, parks, libraries, schools, and wastewater and solid waste collection and disposal. (Ord. No. 1645, § 18.80.1620, 8-15-2005; Ord. No. 1693, § 29(18.80.1620), 2-20-2007; Ord. No. 1761, exh. R(18.80.1620), 7-6-2009) Sec. 38.42.1660. Lodginghouse. A building with not more than ten guest rooms where lodging with or without meals is provided for compensation to persons not meeting the definitions of household, community residential facility, cooperative household, fraternity or sorority. Also referred to as a boardinghouse. (Ord. No. 1645, § 18.80.1630, 8-15-2005; Ord. No. 1693, § 29(18.80.1630), 2-20-2007; Ord. No. 1761, exh. R(18.80.1630), 7-6-2009) Sec. 38.42.1670. Lot. A piece, parcel, plot, tract or area of land in common ownership created by subdivision or its legal equivalent for sale, lease or rent. A lot has the characteristics of being able to be occupied or capable of being occupied by one or more principal buildings, and the accessory buildings or uses customarily incidental to them, and including the open spaces required under this chaptertitle, and having its principal lot frontage on a street. When one or more lots are held in common ownership they shall be treated as a single lot for the purposes of development review and evaluation of compliance with the standards of this chaptertitle. (Ord. No. 1645, § 18.80.1640, 8-15-2005; Ord. No. 1693, § 29(18.80.1640), 2-20-2007; Ord. No. 1761, exh. R(18.80.1640), 7-6-2009) Sec. 38.42.1680. Lot area. The total horizontal area within the boundary lines of a lot. (Ord. No. 1645, § 18.80.1650, 8-15-2005; Ord. No. 1693, § 29(18.80.1650), 2-20-2007; Ord. No. 1761, exh. R(18.80.1650), 7-6-2009) Sec. 38.42.1690. Lot coverage. The ratio of horizontal area, measured from the exterior surface of the exterior walls of the ground floor, of all principal and accessory buildings on a lot to the total lot area. For the purposes of calculating lot coverage, those portions of a structure which do not have exterior walls are not included, even if it is covered by a roof. (Ord. No. 1769, § 19(18.80.1655), 12-28-2009) Sec. 38.42.1700. Lot measurements. A. Lot depth. The horizontal distance of a line measured at a right angle to the front lot line and running between the front lot line and rear lot line of a lot. B. Lot width. The distance as measured in a straight line, between side lot lines at the points of intersection with the required front building line. C. Lot frontage. The horizontal distance between the side lot lines measured at the point where the side lot lines intersect the street right-of-way. All sides of a lot that abuts a street shall be considered frontage. On curvilinear streets, the arc between the side lot lines shall be considered the lot frontage. D. Lot area. The total horizontal area within the boundary lines of a lot. PROOFS Page 844 of 977 (Ord. No. 1645, § 18.80.1660, 8-15-2005; Ord. No. 1693, § 29(18.80.1660), 2-20-2007; Ord. No. 1761, exh. R(18.80.1660), 7-6-2009) Sec. 38.42.1710. Lot types. A. Corner lot. A lot at a junction of, and fronting on, two or more intersecting streets. B. Interior lot. A lot other than a corner or through lot. C. Double frontage or through lot. A lot having frontage on two parallel, or approximately parallel, streets. D. Reverse frontage lot. A double frontage or through lot that is not accessible from one of the parallel or nonintersecting streets on which it fronts. (Ord. No. 1645, § 18.80.1670, 8-15-2005; Ord. No. 1693, § 29(18.80.1670), 2-20-2007; Ord. No. 1761, exh. R(18.80.1670), 7-6-2009) Sec. 38.42.1720. Lot line, front. In the case of an interior lot, a line separating the lot from the street, in the case of a corner lot, a line separating the narrowest street frontage of the lot from the street and in the case of a double frontage or through lot, a line separating the lot from the street from which a drive access may be permitted by the city. (Ord. No. 1645, § 18.80.1680, 8-15-2005; Ord. No. 1693, § 29(18.80.1680), 2-20-2007; Ord. No. 1761, exh. R(18.80.1680), 7-6-2009) Sec. 38.42.1730. Lot line, rear. A lot line which is opposite and most distant from the front lot line and, in the case of an irregular or triangular shaped lot, a line ten feet in length within the lot, parallel to and at the maximum distance from the front lot line. (Ord. No. 1645, § 18.80.1690, 8-15-2005; Ord. No. 1693, § 29(18.80.1690), 2-20-2007; Ord. No. 1761, exh. R(18.80.1690), 7-6-2009) Sec. 38.42.1740. Lot line, side. Any lot boundary line that is not a front lot line or a rear lot line. (Ord. No. 1645, § 18.80.1700, 8-15-2005; Ord. No. 1693, § 29(18.80.1700), 2-20-2007; Ord. No. 1761, exh. R(18.80.1700), 7-6-2009) Sec. 38.42.1750. Lot line, zero. A concept utilized to permit a structure or wall of a building to be located on a property line. (Ord. No. 1645, § 18.80.1710, 8-15-2005; Ord. No. 1693, § 29(18.80.1710), 2-20-2007; Ord. No. 1761, exh. R(18.80.1710), 7-6-2009) Sec. 38.42.1760. Lot width. The distance as measured in a straight line, between side lot lines at the points of intersection with the required front building line. (Ord. No. 1645, § 18.80.1720, 8-15-2005; Ord. No. 1693, § 29(18.80.1720), 2-20-2007; Ord. No. 1761, exh. R(18.80.1720), 7-6-2009) Sec. 38.42.1770. Lot with residential adjacency. A. Any of the following: 1. A building site in a residential zoning district, if the site abuts or is directly across a street or alley from an R-1, R-2, R-3, R-4 or R-O zoning district; 2. A building site in a nonresidential zoning district, if the site abuts or is directly PROOFS Page 845 of 977 across a street or alley from an R-S, R-1, R-2, R-3, R-4 or R-O zoning district; 3. An artificial lot in a residential district, if the lot is less than 200 feet from an R-1, R-2, R-3, R-4 or R-O zoning district; or 4. An artificial lot in a nonresidential zoning district, if the lot is less than 200 feet from an R-S, R-1, R-2, R-3, R-4 or R-O zoning district. (Ord. No. 1645, § 18.80.1730, 8-15-2005; Ord. No. 1693, § 29(18.80.1730), 2-20-2007; Ord. No. 1761, exh. R(18.80.1730), 7-6-2009) Sec. 38.42.1780. Low-profile sign. A freestanding sign composed of a solid structure between finished grade and the top of the sign. Also referred to as a monument sign. (Ord. No. 1645, § 18.80.1740, 8-15-2005; Ord. No. 1693, § 29(18.80.1740), 2-20-2007; Ord. No. 1761, exh. R(18.80.1740), 7-6-2009) Sec. 38.42.1790. Luminaire. A complete lighting unit consisting of a light source and all necessary mechanical, electrical and decorative parts; also called the lighting fixture. (Ord. No. 1645, § 18.80.1750, 8-15-2005; Ord. No. 1693, § 29(18.80.1750), 2-20-2007; Ord. No. 1761, exh. R(18.80.1750), 7-6-2009) Sec. 38.42.1800. Luminance. The physical and measurable luminous intensity of a surface (e.g., a lamp, luminaire, reflecting material) in a specific area and measurable with an illuminance meter. The quotient of the luminous flux at an element of the surface surrounding the point, and propagated in directions defined by an elementary cone containing the given direction, by the product of the solid angle of the cone and area of the orthogonal projection of the element of the surface on a plane perpendicular to the given direction. The luminous flux may be leaving, passing through and/or arriving at the surface. (Ord. No. 1645, § 18.80.1760, 8-15-2005; Ord. No. 1693, § 29(18.80.1760), 2-20-2007; Ord. No. 1761, exh. R(18.80.1760), 7-6-2009) Sec. 38.42.1810. Lux. A unit of light intensity stated in lumens per square meter. There are approximately 10.7 lux per footcandle. (Ord. No. 1645, § 18.80.1770, 8-15-2005; Ord. No. 1693, § 29(18.80.1770), 2-20-2007; Ord. No. 1761, exh. R(18.80.1770), 7-6-2009) Sec. 38.42.1820. Manufactured home. A factory-built, single-household structure that is manufactured under the authority of 42 USC § 5401, the National Manufactured Home Construction and Safety Standards Act, is built on a permanent chassis, and is used as a place for human habitation, but which is not constructed or equipped with a permanent hitch or other device allowing transport of the unit other than for the purpose of delivery to a permanent site, and which does not have wheels or axles permanently attached to its body or frame. This definition specifically does not include recreational vehicles. Any dwelling meeting the definition of modular home is not a manufactured home. (Ord. No. 1645, § 18.80.1780, 8-15-2005; Ord. No. 1693, § 29(18.80.1780), 2-20-2007; Ord. No. 1761, exh. R(18.80.1780), 7-6-2009) PROOFS Page 846 of 977 Sec. 38.42.1830. Manufactured home lot or space. A lot for rent or lease in a manufactured housing community designated for the accommodation of one manufactured home and its accessory buildings or structures for the exclusive use of the occupants. (Ord. No. 1645, § 18.80.1790, 8-15-2005; Ord. No. 1693, § 29(18.80.1790), 2-20-2007; Ord. No. 1761, exh. R(18.80.1790), 7-6-2009) Sec. 38.42.1840. Manufactured home stand. That area of a lot for rent or lease which has been prepared for the placement of a manufactured home in a manufactured home community. (Ord. No. 1645, § 18.80.1800, 8-15-2005; Ord. No. 1693, § 29(18.80.1800), 2-20-2007; Ord. No. 1761, exh. R(18.80.1800), 7-6-2009) Sec. 38.42.1850. Manufactured home community. Any piece of real property under single ownership or control for which the primary purpose is the placement of two or more manufactured homes for permanent residential dwellings and for the production of income. A manufactured housing community does not include real property used for the display and sale of manufactured units, nor does it include real property used for seasonal purposes only, as opposed to year-round occupancy. Home sites within the community are leased to individual homeowners, who retain customary leasehold rights. (Ord. No. 1645, § 18.80.1810, 8-15-2005; Ord. No. 1693, § 29(18.80.1810), 2-20-2007; Ord. No. 1761, exh. R(18.80.1810), 7-6-2009) Sec. 38.42.1860. Manufacturing. The creation of products either with machinery or by hand according to an organized plan and with the division of labor. (Ord. No. 1645, § 18.80.1820, 8-15-2005; Ord. No. 1693, § 29(18.80.1820), 2-20-2007; Ord. No. 1761, exh. R(18.80.1820), 7-6-2009) Sec. 38.42.1870. Manufacturing, light. Fabrication of and/or assembly of goods from previously prepared materials. (Ord. No. 1645, § 18.80.1830, 8-15-2005; Ord. No. 1693, § 29(18.80.1830), 2-20-2007; Ord. No. 1761, exh. R(18.80.1830), 7-6-2009) Sec. 38.42.1880. Mean sea level349. The National Geodetic Vertical Datum (NGVD) of 1929 or other datum to which base flood elevations are referenced. (Ord. No. 1645, § 18.80.1840, 8-15-2005; Ord. No. 1693, § 29(18.80.1840), 2-20-2007; Ord. No. 1761, exh. R(18.80.1840), 7-6-2009) Sec. 38.42.1890. Medical offices, clinics and centers. An establishment where patients are admitted for special study and treatment by licensed health care professionals, including acupuncturists and chiropractors. (Ord. No. 1645, § 18.80.1850, 8-15-2005; Ord. No. 1693, § 29(18.80.1850), 2-20-2007; Ord. No. 1761, exh. R(18.80.1850), 7-6-2009) 349 Most municipalities now use the NAVD 88 datum. 1929 is the correct year. We will consider removing the date reference under a future UDO edit. PROOFS Page 847 of 977 Sec. 38.42.1900. Micro-scale wireless facility. A wireless facility less than ten feet in height from the base to the highest point, including attachments. When calculating the height of a facility, other structures designed for other uses, such as buildings or water towers, shall not be included in the calculation. (Ord. No. 1645, § 18.80.1860, 8-15-2005; Ord. No. 1693, § 29(18.80.1860), 2-20-2007; Ord. No. 1761, exh. R(18.80.1860), 7-6-2009) Sec. 38.42.1910. Mining. The extraction of sand, gravel or other material from the land in the amount of 400 cubic yards or more and the removal thereof from the site without processing. (Ord. No. 1645, § 18.80.1870, 8-15-2005; Ord. No. 1693, § 29(18.80.1870), 2-20-2007; Ord. No. 1761, exh. R(18.80.1870), 7-6-2009) Sec. 38.42.1920. Mini-warehouse (warehouse, residential storage). A building or group of buildings in a controlled access and fenced or screened compound that contains relatively small storage spaces of varying sizes and/or spaces for recreational vehicles or boats, having individual, compartmentalized and controlled access for the dead storage of excess personal property of an individual or household generally stored in residential accessory structures, when such building or group of buildings are not located on the lot of the residence. (Ord. No. 1645, § 18.80.1880, 8-15-2005; Ord. No. 1693, § 29(18.80.1880), 2-20-2007; Ord. No. 1761, exh. R(18.80.1880), 7-6-2009) Sec. 38.42.1930. Minor subdivision. A subdivision that creates five or fewer lots from a tract of record. (Ord. No. 1645, § 18.80.1890, 8-15-2005; Ord. No. 1693, § 29(18.80.1890), 2-20-2007; Ord. No. 1761, exh. R(18.80.1890), 7-6-2009) Sec. 38.42.1940. Mobile home. A transportable, manufactured structure, suitable for year-round single-household occupancy and having water, electrical and sewage connections similar to those of conventional dwellings. This definition applies only to units constructed prior to the Federal Manufactured Housing Construction and Safety Standards Act of 1974, which became effective June 15, 1976. Compare with the definition of manufactured home. (Ord. No. 1645, § 18.80.1900, 8-15-2005; Ord. No. 1693, § 29(18.80.1900), 2-20-2007; Ord. No. 1761, exh. R(18.80.1900), 7-6-2009) Sec. 38.42.1950. Mobile office. A factory assembled structure or structures exceeding eight feet in width, originally equipped with the necessary service connections, and originally made so as to be readily movable as a unit or units on its (their) own running gear and designed to be used as an office without a permanent foundation, in compliance with all applicable state regulations, whether or not the running gear has been removed. (Ord. No. 1645, § 18.80.1910, 8-15-2005; Ord. No. 1693, § 29(18.80.1910), 2-20-2007; Ord. No. 1761, exh. R(18.80.1910), 7-6-2009) Sec. 38.42.1960. Model home. A home constructed to display a builder’s for sale or lease units but which does not serve as a dwelling unit until sold as a residence. (Ord. No. 1645, § 18.80.1920, 8-15-2005; Ord. No. 1693, § 29(18.80.1920), 2-20-2007; Ord. No. 1761, exh. R(18.80.1920), 7-6-2009) PROOFS Page 848 of 977 Sec. 38.42.1970. Modular or sectional home. A dwelling unit meeting the standards of the International Building Code which was mass produced in a factory, designed and constructed for transportation to a site for occupancy when connected to the required utilities and when permanently anchored to a permanent foundation, whether intended for use as an independent, individual unit or in combination with other units to form a larger building, and which does not have integral wheel, axles or hitch. For the purposes of locating a dwelling according to the standards of this chaptertitle there is no distinction made between a dwelling constructed wholly or partly off-site and a dwelling constructed on-site so long as they meet the standards of the city’s adopted International Building Code. (Ord. No. 1645, § 18.80.1930, 8-15-2005; Ord. No. 1693, § 29(18.80.1930), 2-20-2007; Ord. No. 1761, exh. R(18.80.1930), 7-6-2009) Sec. 38.42.1980. Monument (permanent monument). Any structure of masonry, metal or other permanent material placed in the ground which is exclusively identifiable as a monument to a survey point, expressly placed for surveying reference. (Ord. No. 1645, § 18.80.1940, 8-15-2005; Ord. No. 1693, § 29(18.80.1940), 2-20-2007; Ord. No. 1761, exh. R(18.80.1940), 7-6-2009) Sec. 38.42.1990. Natural environment. The physical conditions which exist within a given area, including land, water, mineral, flora, fauna, noise, light, and objects of historic or aesthetic significance. (Ord. No. 1645, § 18.80.1950, 8-15-2005; Ord. No. 1693, § 29(18.80.1950), 2-20-2007; Ord. No. 1761, exh. R(18.80.1950), 7-6-2009) Sec. 38.42.2000. Neighborhood commercial center. Commercial uses oriented at serving the needs of neighborhoods. These areas are typified by smaller scale shops and services, and a high level of pedestrian, bicycle and transit opportunities. Neighborhood commercial centers are intended to support and help give identity to individual neighborhoods by providing a visible and distinctive focal point. A neighborhood commercial center may also contain uses that draw from more than the immediate vicinity, especially when located adjacent to arterial streets. Activities commonly expected in this classification are daycares, smaller scale groceries, bakeries, coffee shops, retail stores, small restaurants, offices and residences above other uses. (Ord. No. 1645, § 18.80.1960, 8-15-2005; Ord. No. 1693, § 29(18.80.1960), 2-20-2007; Ord. No. 1761, exh. R(18.80.1960), 7-6-2009) Sec. 38.42.2010. Neighborhood conservation overlay district. An area designated as the neighborhood conservation overlay district on the city zoning map pursuant to the procedures set forth herein. (Ord. No. 1645, § 18.80.1970, 8-15-2005; Ord. No. 1693, § 29(18.80.1970), 2-20-2007; Ord. No. 1761, exh. R(18.80.1970), 7-6-2009) Sec. 38.42.2020. Net residential density. The number of residential dwelling units per buildable unit of land, excluding any land used or to be used as street rights-of-way, parks, public buildings or private nonresidential uses. For calculating net residential density, the following formula shall apply: D = du A - (c+i+s+a+d) PROOFS Page 849 of 977 Where D = Residential density du = Total number of dwelling units in project A = Total site area (acres) c = Total commercial land area (acres) i = Total industrial land area (acres) s = Reserved but undedicated school or park sites (acres) a = Street, public or private, rights-of-way and transportation easements (acres) d = Dedicated park lands, conservation easements, or common open spaces (acres) (Ord. No. 1645, § 18.80.1980, 8-15-2005; Ord. No. 1761, exh. R(18.80.1980), 7-6-2009) Sec. 38.42.2030. New construction. Development commenced on or after the effective date of the ordinance codified infrom which this chaptertitle is derived. (Ord. No. 1645, § 18.80.1990, 8-15-2005; Ord. No. 1693, § 29(18.80.1990), 2-20-2007; Ord. No. 1761, exh. R(18.80.1990), 7-6-2009) Sec. 38.42.2040. Nonbroadcast telecommunication facility. A facility used for the transmission or enhancement of telecommunications which does not include the presence of antennas, as defined in this chaptertitle. A nonbroadcast telecommunication facility does not include office use, materials storage or other similar uses. (Ord. No. 1645, § 18.80.2000, 8-15-2005; Ord. No. 1693, § 29(18.80.2000), 2-20-2007; Ord. No. 1761, exh. R(18.80.2000), 7-6-2009) Sec. 38.42.2050. Noncanopy tree. A large tree which in its native state has at maturity canopy vegetation less than six feet above the ground. (Ord. No. 1645, § 18.80.2010, 8-15-2005; Ord. No. 1693, § 29(18.80.2010), 2-20-2007; Ord. No. 1761, exh. R(18.80.2010), 7-6-2009) Sec. 38.42.2060. Noncommercial speech. Any sign wording, logo or other representation that does not directly or indirectly name, advertise or call attention to a business, product, service or other commercial activity. (Ord. No. 1645, § 18.80.2020, 8-15-2005; Ord. No. 1693, § 29(18.80.2020), 2-20-2007; Ord. No. 1761, exh. R(18.80.2020), 7-6-2009) Sec. 38.42.2070. Nonconforming sign. A sign that does not conform to the provisions of chapter 18.52, BMCarticle 28 of this chapter. (Ord. No. 1645, § 18.80.2030, 8-15-2005; Ord. No. 1693, § 29(18.80.2030), 2-20-2007; Ord. No. 1761, exh. R(18.80.2030), 7-6-2009) Sec. 38.42.2080. Nonconforming structure. Any structure which was legal prior to the effective date of the ordinance codified infrom which this chapterarticle is derived which fails to comply with the building location standards, and/or size requirements of the applicable zone of this chaptertitle in which it is located. (Ord. No. 1645, § 18.80.2040, 8-15-2005; Ord. No. 1693, § 29(18.80.2040), 2-20-2007; Ord. No. 1761, exh. R(18.80.2040), 7-6-2009) PROOFS Page 850 of 977 Sec. 38.42.2090. Nonconforming use. An existing use of land or building which was legal prior to the effective date of the ordinance codified infrom which this chaptertitle is derived but which fails to comply with the requirements set forth in this chaptertitle applicable to the zone in which such use is located. (Ord. No. 1645, § 18.80.2050, 8-15-2005; Ord. No. 1693, § 29(18.80.2050), 2-20-2007; Ord. No. 1761, exh. R(18.80.2050), 7-6-2009) Sec. 38.42.2100. Noxious matter or material. Material capable of causing injury to living organisms by chemical reaction or capable of causing detrimental effects on the physical or economic well-being of individuals. (Ord. No. 1645, § 18.80.2060, 8-15-2005; Ord. No. 1693, § 29(18.80.2060), 2-20-2007; Ord. No. 1761, exh. R(18.80.2060), 7-6-2009) Sec. 38.42.2110. Nursing home. An extended or intermediate care facility licensed or approved to provide full-time convalescent or chronic care to individuals who, by reason of advanced age, chronic illness or infirmity, are unable to care for themselves. (Ord. No. 1645, § 18.80.2070, 8-15-2005; Ord. No. 1693, § 29(18.80.2070), 2-20-2007; Ord. No. 1761, exh. R(18.80.2070), 7-6-2009) Sec. 38.42.2120. Nursery, plant. Facilities for commercial development, growth and sale of plants and/or for the utilization of and storage of equipment for landscaping operation and wholesale and/or retail or commercial gardening supplies. (Ord. No. 1645, § 18.80.2080, 8-15-2005; Ord. No. 1693, § 29(18.80.2080), 2-20-2007; Ord. No. 1761, exh. R(18.80.2080), 7-6-2009) Sec. 38.42.2130. Off-premises sign. A sign which advertises or directs attention to products or activities that are not provided on the parcel upon which the sign is located. (Ord. No. 1645, § 18.80.2090, 8-15-2005; Ord. No. 1693, § 29(18.80.2090), 2-20-2007; Ord. No. 1761, exh. R(18.80.2090), 7-6-2009) Sec. 38.42.2140. Offices. Buildings or portions of buildings in which commercial activities take place but where goods are not produced, sold or repaired. These include but are not limited to general and professional offices; governmental offices; insurance offices; real estate offices; taxicab offices (but not taxi stands); travel agency or transportation ticket offices; telephone exchange; utility offices; radio broadcasting and similar uses. (Ord. No. 1645, § 18.80.2100, 8-15-2005; Ord. No. 1693, § 29(18.80.2100), 2-20-2007; Ord. No. 1761, exh. R(18.80.2100), 7-6-2009) Sec. 38.42.2150. Official floodplain maps. The flood insurance rate maps and flood boundary/floodway maps provided by FEMA for the city dated July 15, 1988 and incorporating any approved updates or revisions. (Ord. No. 1645, § 18.80.2110, 8-15-2005; Ord. No. 1693, § 29(18.80.2110), 2-20-2007; Ord. No. 1761, exh. R(18.80.2110), 7-6-2009) PROOFS Page 851 of 977 Sec. 38.42.2160. 100-year flood350. A flood having a one percent chance of being equalled or exceeded in any given year. A 100- year flood has nearly a 23 percent chance of occurring in a 25-year period. A 100-year flood is the same as a base flood. (Ord. No. 1645, § 18.80.2120, 8-15-2005; Ord. No. 1693, § 29(18.80.2120), 2-20-2007; Ord. No. 1761, exh. R(18.80.2120), 7-6-2009) Sec. 38.42.2170. Open sales (or rental) lot. Any land used or occupied for the purpose of buying, selling or renting for use away from the premises, any goods, materials or merchandise, and for the exterior storing of same prior to sale or rental. (Ord. No. 1645, § 18.80.2130, 8-15-2005; Ord. No. 1693, § 29(18.80.2130), 2-20-2007; Ord. No. 1761, exh. R(18.80.2130), 7-6-2009) Sec. 38.42.2180. Open space. A land or water area devoid of buildings and other physical structures except where accessory to the provision of recreation, including but not limited to benches, picnic tables and interpretive signage. (Ord. No. 1645, § 18.80.2140, 8-15-2005; Ord. No. 1693, § 29(18.80.2140), 2-20-2007; Ord. No. 1761, exh. R(18.80.2140), 7-6-2009) Sec. 38.42.2190. Open space, usable. That space which is capable of being used by the public for recreation, relaxation and social purposes. Parking lots and perimeter landscaping are specifically excluded from this definition of usable open space, except as allowed by section 18.36.090, BMC38.20.090. (Ord. No. 1645, § 18.80.2150, 8-15-2005; Ord. No. 1693, § 29(18.80.2150), 2-20-2007; Ord. No. 1761, exh. R(18.80.2150), 7-6-2009) Sec. 38.42.2200. Ordinary high-water mark. The outermost line caused by water impressing on land and covering it for sufficient periods to cause physical characteristics that distinguish the area below the line from the area above it. Characteristics of the area below the line include, when appropriate, but are not limited to, deprivation of the soil of substantially all terrestrial vegetation and destruction of its agricultural vegetative value. A floodplain adjacent to surface waters is not considered to lie within the surface water’s high-water marks. (Ord. No. 1645, § 18.80.2160, 8-15-2005; Ord. No. 1693, § 29(18.80.2160), 2-20-2007; Ord. No. 1761, exh. R(18.80.2160), 7-6-2009) Sec. 38.42.2210. Overlay zone. A zone superimposed upon an underlying zone which establishes special requirements in addition to, or in lieu of, those of the underlying zone. (Ord. No. 1645, § 18.80.2170, 8-15-2005; Ord. No. 1693, § 29(18.80.2170), 2-20-2007; Ord. No. 1761, exh. R(18.80.2170), 7-6-2009) Sec. 38.42.2220. Parapet. That part of the wall which extends above the roof. For the purposes of this chaptertitle relating to signage, the top of the parapet shall be considered to be the roofline. 350 Note change to conform with base flood definition. PROOFS Page 852 of 977 (Ord. No. 1645, § 18.80.2180, 8-15-2005; Ord. No. 1693, § 29(18.80.2180), 2-20-2007; Ord. No. 1761, exh. R(18.80.2180), 7-6-2009) Sec. 38.42.2230. Park. For the purposes of this chaptertitle only, park means an open space, as defined in this chaptertitle, under the ownership or other legal control of the city which provides area for active and passive recreational purposes. (Ord. No. 1645, § 18.80.2185, 8-15-2005; Ord. No. 1693, § 29(18.80.2185), 2-20-2007; Ord. No. 1761, exh. R(18.80.2185), 7-6-2009) Sec. 38.42.2240. Parking area. An area, other than a street or alley designated for use, or used, for temporary parking of vehicles. (Ord. No. 1645, § 18.80.2190, 8-15-2005; Ord. No. 1693, § 29(18.80.2190), 2-20-2007; Ord. No. 1761, exh. R(18.80.2190), 7-6-2009) Sec. 38.42.2250. Parking space, off-street. A space designated for the temporary parking of a motor vehicle not on the right-of-way or alley but accessible from a street or alley. (Ord. No. 1645, § 18.80.2200, 8-15-2005; Ord. No. 1693, § 29(18.80.2200), 2-20-2007; Ord. No. 1761, exh. R(18.80.2200), 7-6-2009) Sec. 38.42.2260. Party wall. Any wall of a building or structure which is common to two or more buildings, and which has a minimum of one-hour fire resistant construction as defined and regulated by the latest adopted International Building Code. (Ord. No. 1645, § 18.80.2210, 8-15-2005; Ord. No. 1693, § 29(18.80.2210), 2-20-2007; Ord. No. 1761, exh. R(18.80.2210), 7-6-2009) Sec. 38.42.2270. Pathway. A facility that accommodates the recreational and/or transportation needs of pedestrians and bicyclists, including sidewalks, bike lanes, boulevard trails and trails. (Ord. No. 1645, § 18.80.2220, 8-15-2005; Ord. No. 1693, § 29(18.80.2220), 2-20-2007; Ord. No. 1761, exh. R(18.80.2220), 7-6-2009) Sec. 38.42.2280. Paved parking space or surface. An area covered by an impervious dustfree surface of asphalt or concrete designed to specifications of the city engineer. (Ord. No. 1645, § 18.80.2230, 8-15-2005; Ord. No. 1693, § 29(18.80.2230), 2-20-2007; Ord. No. 1761, exh. R(18.80.2230), 7-6-2009) Sec. 38.42.2290. Pennant. Any lightweight plastic, fabric or other material, whether or not containing a message of any kind, suspended from a rope, wire or string, usually in series, designed to move in the wind. (Ord. No. 1645, § 18.80.2240, 8-15-2005; Ord. No. 1693, § 29(18.80.2240), 2-20-2007; Ord. No. 1761, exh. R(18.80.2240), 7-6-2009) Sec. 38.42.2300. Permeable pavement. A paving material that permits water penetration to a soil depth of 18 inches or more. Permeable pavement may consist of nonporous surface materials poured or laid in sections not PROOFS Page 853 of 977 exceeding one square foot in an area and collectively comprising less than two-thirds of the total surface area. (Ord. No. 1645, § 18.80.2250, 8-15-2005; Ord. No. 1693, § 29(18.80.2250), 2-20-2007; Ord. No. 1761, exh. R(18.80.2250), 7-6-2009) Sec. 38.42.2310. Permitted use. A use which is lawfully established in a particular district or districts and which conforms to all requirements, regulations and performance standards of such district. A permitted use may be a principal use, an accessory use or a conditional use. (Ord. No. 1645, § 18.80.2260, 8-15-2005; Ord. No. 1693, § 29(18.80.2260), 2-20-2007; Ord. No. 1761, exh. R(18.80.2260), 7-6-2009) Sec. 38.42.2320. Personal and convenience services. Businesses offering services such as barbershops, beauty shops, tailors, shoe repair, tattooing, massage, laundromats, laundry and dry cleaning pickup and delivery stations, and similar uses. Some production of finished goods may occur as an activity accessory to the delivery of services. (Ord. No. 1645, § 18.80.2270, 8-15-2005; Ord. No. 1693, § 29(18.80.2270), 2-20-2007; Ord. No. 1761, exh. R(18.80.2270), 7-6-2009) Sec. 38.42.2330. Personal property. Property, other than real property, consisting of things temporal and movable. (Ord. No. 1645, § 18.80.2280, 8-15-2005; Ord. No. 1693, § 29(18.80.2280), 2-20-2007; Ord. No. 1761, exh. R(18.80.2280), 7-6-2009) Sec. 38.42.2340. Persons. Includes any individual or group of individuals, corporations, partnerships, associations or any other organized group of persons, including state and local governments and agencies thereof. (Ord. No. 1645, § 18.80.2290, 8-15-2005; Ord. No. 1693, § 29(18.80.2290), 2-20-2007; Ord. No. 1761, exh. R(18.80.2290), 7-6-2009) Sec. 38.42.2350. Planned unit development (PUD). A land development project consisting of residential clusters, industrial parks, shopping centers, or office building parks or any combination thereof that compose a planned mixture of land uses built in a prearranged relationship to each other and having open space and community facilities in a common ownership or use, and/or public park land. (Ord. No. 1645, § 18.80.2300, 8-15-2005; Ord. No. 1693, § 29(18.80.2300), 2-20-2007; Ord. No. 1761, exh. R(18.80.2300), 7-6-2009) Sec. 38.42.2360. Planning board351. The Bozeman Planning Board. (Ord. No. 1645, § 18.80.2310, 8-15-2005; Ord. No. 1693, § 29(18.80.2310), 2-20-2007; Ord. No. 1761, exh. R(18.80.2310), 7-6-2009) 351 Do you wish to use the actual titles rather than generic titles with definitions? This is a bit of a left over from when there was a joint city-county planning board. Although it seems overly detailed since the planning board has a regulatory role it feels prudent to retain the definition. Since they are referenced so often it is helpful to shorten the term. Please leave as is. PROOFS Page 854 of 977 Sec. 38.42.2370. Planning department. The Bozeman Department of Planning and Community Development. (Ord. No. 1645, § 18.80.2320, 8-15-2005; Ord. No. 1693, § 29(18.80.2320), 2-20-2007; Ord. No. 1761, exh. R(18.80.2320), 7-6-2009) Sec. 38.42.2380. Planning director. The director of the Bozeman Department of Planning and Community Development and the person charged with the administration of this chaptertitle unless otherwise specifically noted in this chaptertitle. (Ord. No. 1645, § 18.80.2330, 8-15-2005; Ord. No. 1693, § 29(18.80.2330), 2-20-2007; Ord. No. 1761, exh. R(18.80.2330), 7-6-2009) Sec. 38.42.2390. Plat. A graphical representation of a subdivision showing the division of land into lots, parcels, blocks, streets, alleys, and other divisions and dedications. (Ord. No. 1645, § 18.80.2340, 8-15-2005; Ord. No. 1693, § 29(18.80.2340), 2-20-2007; Ord. No. 1761, exh. R(18.80.2340), 7-6-2009) Sec. 38.42.2400. Plaza. An area generally open to the public on a controlled basis and used principally for passive recreational activities and relaxation. Plazas are paved areas typically providing amenities such as seating, drinking and ornamental fountains, art, trees and landscaping for use by pedestrians. (Ord. No. 1645, § 18.80.2350, 8-15-2005; Ord. No. 1693, § 29(18.80.2350), 2-20-2007; Ord. No. 1761, exh. R(18.80.2350), 7-6-2009) Sec. 38.42.2410. Pole sign. A freestanding sign which is supported by a column or other structural member that is permanently attached to the ground, or a ground-mounted structure and provides a minimum of eight feet of visible, vertical clearance between the bottom of the sign and finished grade. (Ord. No. 1645, § 18.80.2360, 8-15-2005; Ord. No. 1693, § 29(18.80.2360), 2-20-2007; Ord. No. 1761, exh. R(18.80.2360), 7-6-2009) Sec. 38.42.2420. Portable sign. Any sign not permanently attached to the ground or other permanent structure, or a sign designed to be transported, including, but not limited to, signs designed to be transported by means of wheels; signs converted to A- or T-frames; balloons used as signs; umbrellas used for advertising; and signs attached to or painted on vehicles parked and visible from the public right- of-way, unless said vehicle is used in the normal day-to-day operations of the business. (Ord. No. 1645, § 18.80.2370, 8-15-2005; Ord. No. 1693, § 29(18.80.2370), 2-20-2007; Ord. No. 1761, exh. R(18.80.2370), 7-6-2009) Sec. 38.42.2430. Preservation board. The Bozeman Historic Preservation Advisory Board. (Ord. No. 1645, § 18.80.2380, 8-15-2005; Ord. No. 1693, § 29(18.80.2380), 2-20-2007; Ord. No. 1761, exh. R(18.80.2380), 7-6-2009) Sec. 38.42.2440. Primary access. The major access to a subdivision. The major access generally carries the most traffic as determined by the traffic engineering study. PROOFS Page 855 of 977 (Ord. No. 1645, § 18.80.2390, 8-15-2005; Ord. No. 1693, § 29(18.80.2390), 2-20-2007; Ord. No. 1761, exh. R(18.80.2390), 7-6-2009) Sec. 38.42.2450. Principal use. A use or structure which determines the predominant or major use of the lot on which it is located. The principal use shall be that use which establishes the character of the property relative to surrounding or adjacent properties. (Ord. No. 1645, § 18.80.2400, 8-15-2005; Ord. No. 1693, § 29(18.80.2400), 2-20-2007; Ord. No. 1761, exh. R(18.80.2400), 7-6-2009) Sec. 38.42.2460. Private street. A right-of-way usable by the public but maintained by a property owners association. (Ord. No. 1645, § 18.80.2410, 8-15-2005; Ord. No. 1693, § 29(18.80.2410), 2-20-2007; Ord. No. 1761, exh. R(18.80.2410), 7-6-2009) Sec. 38.42.2470. Projecting sign. Any sign affixed to a building or wall in such a manner that its leading edge extends more than six inches beyond the surface of such building or wall and is perpendicular to such building or wall. (Ord. No. 1645, § 18.80.2420, 8-15-2005; Ord. No. 1693, § 29(18.80.2420), 2-20-2007; Ord. No. 1761, exh. R(18.80.2420), 7-6-2009) Sec. 38.42.2480. Proper access. Either an improved public street or road, maintained by the city, county or state; or a street or road built to the standards provided in these regulations. (Ord. No. 1645, § 18.80.2430, 8-15-2005; Ord. No. 1693, § 29(18.80.2430), 2-20-2007; Ord. No. 1761, exh. R(18.80.2430), 7-6-2009) Sec. 38.42.2490. Property owner. Any person, firm, corporation or other entity shown as being the legal owner of a tract, parcel or lot in the records of the county clerk and recorder. (Ord. No. 1645, § 18.80.2440, 8-15-2005; Ord. No. 1693, § 29(18.80.2440), 2-20-2007; Ord. No. 1761, exh. R(18.80.2440), 7-6-2009) Sec. 38.42.2500. Property owners association. An association incorporated or not incorporated, combining individual property ownership with shared use or ownership of common property or facilities, or shared maintenance of subdivision or community facilities. This definition includes condominium associations. (Ord. No. 1645, § 18.80.2450, 8-15-2005; Ord. No. 1693, § 29(18.80.2450), 2-20-2007; Ord. No. 1761, exh. R(18.80.2450), 7-6-2009) Sec. 38.42.2510. Public building. A building, supported by government funds, to be used in an official capacity on behalf of the entire community. (Ord. No. 1645, § 18.80.2460, 8-15-2005; Ord. No. 1693, § 29(18.80.2460), 2-20-2007; Ord. No. 1761, exh. R(18.80.2460), 7-6-2009) Sec. 38.42.2520. Public health and safety. A condition of optimal well-being, free from danger or injury, for a community at large, not merely for an individual or small group of persons. PROOFS Page 856 of 977 (Ord. No. 1645, § 18.80.2470, 8-15-2005; Ord. No. 1693, § 29(18.80.2470), 2-20-2007; Ord. No. 1761, exh. R(18.80.2470), 7-6-2009) Sec. 38.42.2530. Public improvement. Any structure or facility constructed to serve the residents of a subdivision or the general public such as parks, streets, sidewalks, curbs, gutters, street lighting, utilities and systems for water supply, sewage disposal and drainage. (Ord. No. 1645, § 18.80.2480, 8-15-2005; Ord. No. 1693, § 29(18.80.2480), 2-20-2007; Ord. No. 1761, exh. R(18.80.2480), 7-6-2009) Sec. 38.42.2540. Public street or road. A street or road for which the right-of-way has been dedicated to the public. (Ord. No. 1645, § 18.80.2490, 8-15-2005; Ord. No. 1693, § 29(18.80.2490), 2-20-2007; Ord. No. 1761, exh. R(18.80.2490), 7-6-2009) Sec. 38.42.2550. Real property. Property consisting of buildings and/or land. (Ord. No. 1645, § 18.80.2500, 8-15-2005; Ord. No. 1693, § 29(18.80.2500), 2-20-2007; Ord. No. 1761, exh. R(18.80.2500), 7-6-2009) Sec. 38.42.2560. Rear yard. A yard extending across the full width of the lot between the two side lot lines, the depth of which is the distance required by this chaptertitle between the rear property line and the rear building line. (Ord. No. 1645, § 18.80.2510, 8-15-2005; Ord. No. 1693, § 29(18.80.2510), 2-20-2007; Ord. No. 1761, exh. R(18.80.2510), 7-6-2009) Sec. 38.42.2570. Recreational vehicle. A vehicular-type portable structure without permanent foundation, which is built on a single chassis; which is designed to be self-propelled or permanently towable by a light-duty truck; primarily designed as temporary living accommodations for recreational, camping and travel use and including, but not limited to, travel trailers, truck campers, camping trailers and self- propelled motor homes less than eight feet in width and 50 feet in length. (Ord. No. 1645, § 18.80.2520, 8-15-2005; Ord. No. 1693, § 29(18.80.2520), 2-20-2007; Ord. No. 1761, exh. R(18.80.2520), 7-6-2009) Sec. 38.42.2580. Recreational vehicle park. A plot of ground upon which two or more sites are located, established or maintained for occupancy by the general public as temporary living quarters for travel, recreation or vacation purposes. (Ord. No. 1645, § 18.80.2530, 8-15-2005; Ord. No. 1693, § 29(18.80.2530), 2-20-2007; Ord. No. 1761, exh. R(18.80.2530), 7-6-2009) Sec. 38.42.2590. Recreational vehicle space. A lot for rent or lease within a recreational vehicle park designed for the placement of a single recreational vehicle and the exclusive use of its occupants. (Ord. No. 1645, § 18.80.2540, 8-15-2005; Ord. No. 1693, § 29(18.80.2540), 2-20-2007; Ord. No. 1761, exh. R(18.80.2540), 7-6-2009) PROOFS Page 857 of 977 Sec. 38.42.2600. Relocation. Any movement of a structure, on the same site or to another site. (Ord. No. 1645, § 18.80.2550, 8-15-2005; Ord. No. 1693, § 29(18.80.2550), 2-20-2007; Ord. No. 1761, exh. R(18.80.2550), 7-6-2009) Sec. 38.42.2610. Repair. Any change not otherwise construed as light construction or an alteration, as herein defined in this article, that constitutes replacing broken, worn or damaged materials with like, not necessarily identical, materials and is insignificant to the size and condition of the structure or property. Repainting and reroofing shall be included under this definition of repair. (Ord. No. 1645, § 18.80.2560, 8-15-2005; Ord. No. 1693, § 29(18.80.2560), 2-20-2007; Ord. No. 1761, exh. R(18.80.2560), 7-6-2009) Sec. 38.42.2620. Required front building line. The line nearest to the front and across a lot establishing the minimum open space to be provided between the front line of a building and the front lot line. See also the definition of “setback line.” (Ord. No. 1645, § 18.80.2570, 8-15-2005; Ord. No. 1693, § 29(18.80.2570), 2-20-2007; Ord. No. 1761, exh. R(18.80.2570), 7-6-2009) Sec. 38.42.2630. Required rear building line. The line nearest to the rear and across a lot establishing the minimum open space to be provided between the rear line of a building and the rear lot line. See also definition of “setback line.” (Ord. No. 1645, § 18.80.2580, 8-15-2005; Ord. No. 1693, § 29(18.80.2580), 2-20-2007; Ord. No. 1761, exh. R(18.80.2580), 7-6-2009) Sec. 38.42.2640. Required side building line. The line nearest to the side and extending between the required front building line and required rear building line establishing the minimum open space to be provided between the side line of a building and the side lot line. See also the definition of “setback line.” (Ord. No. 1645, § 18.80.2590, 8-15-2005; Ord. No. 1693, § 29(18.80.2590), 2-20-2007; Ord. No. 1761, exh. R(18.80.2590), 7-6-2009) Sec. 38.42.2650. Required yard. The minimum dimension of a front, side or rear yard as established by the use regulations for each district. (Ord. No. 1645, § 18.80.2600, 8-15-2005; Ord. No. 1693, § 29(18.80.2600), 2-20-2007; Ord. No. 1761, exh. R(18.80.2600), 7-6-2009) Sec. 38.42.2660. Restaurant. Any restaurant (except a drive-in restaurant or a convenience food restaurant as defined in this chapterarticle), coffee shop, cafeteria, short-order café, luncheonette, sandwich stand, drugstore and soda fountain serving food. (Ord. No. 1645, § 18.80.2610, 8-15-2005; Ord. No. 1693, § 29(18.80.2610), 2-20-2007; Ord. No. 1761, exh. R(18.80.2610), 7-6-2009) Sec. 38.42.2670. Retail. The rental or sale of tangible personal property for any purpose other than for resale. PROOFS Page 858 of 977 (Ord. No. 1645, § 18.80.2620, 8-15-2005; Ord. No. 1693, § 29(18.80.2620), 2-20-2007; Ord. No. 1761, exh. R(18.80.2620), 7-6-2009) Sec. 38.42.2680. Retail, large scale. The sale of tangible personal property for any purpose other than for resale where the total area utilized by a single tenant, exclusive of parking, occupies 40,000 square feet or more. (Ord. No. 1645, § 18.80.2630, 8-15-2005; Ord. No. 1693, § 29(18.80.2630), 2-20-2007; Ord. No. 1761, exh. R(18.80.2630), 7-6-2009) Sec. 38.42.2690. Revolving sign. Any sign which all, or a portion of, mechanically rotates either on an intermittent or constant basis around a central axis. (Ord. No. 1645, § 18.80.2640, 8-15-2005; Ord. No. 1693, § 29(18.80.2640), 2-20-2007; Ord. No. 1761, exh. R(18.80.2640), 7-6-2009; Ord. No. 1780, § 4(18.80.2640), 3-22-2010) Sec. 38.42.2700. Ridgeline. A relatively narrow elevation that is prominent because it rises at an angle of 25 percent or greater; an elongated crest, or series of crests, with or without individual peaks, significantly higher than the adjoining ground and often acting as the hydrologic dividing line between two or more drainage areas. (Ord. No. 1645, § 18.80.2650, 8-15-2005; Ord. No. 1693, § 29(18.80.2650), 2-20-2007; Ord. No. 1761, exh. R(18.80.2650), 7-6-2009) Sec. 38.42.2710. Ridgeline protection area. A. A ridgeline protection area is the area within 150 feet horizontal feet of a ridgeline, measured perpendicular to the ridgeline when the ridgeline is: 1. Located in an area above 4,900 feet in elevation above mean sea level; and 2. When the elevation of a line parallel to the ridgeline loses either: a. At least ten feet in vertical elevation on both sides of the ridgeline within 100 feet; or b. At least 30 feet in vertical elevation on both sides of the ridgeline within 300 feet; c. A combination of the two standards where one side of the ridgeline meets one loss of elevation standard and the opposite side meets the other. (Ord. No. 1645, § 18.80.2660, 8-15-2005; Ord. No. 1693, § 29(18.80.2660), 2-20-2007; Ord. No. 1761, exh. R(18.80.2660), 7-6-2009) Sec. 38.42.2720. Right-of-way. A linear public way established or dedicated for public purposes by duly recorded plat, deed, easement, grant, prescription, condemnation, governmental authority or by operation of the law and intended to be occupied by a street, crosswalk, railroad, electric transmission lines, water line, sanitary sewer line, storm sewer line or other similar uses. (Ord. No. 1645, § 18.80.2670, 8-15-2005; Ord. No. 1693, § 29(18.80.2670), 2-20-2007; Ord. No. 1761, exh. R(18.80.2670), 7-6-2009) Sec. 38.42.2730. Roadway. That portion of the street or road right-of-way which is improved or is proposed to be improved to carry traffic and provide for the on-street storage of automobiles; where curb is provided, the roadway is measured from back-of-curb to back-of-curb. PROOFS Page 859 of 977 (Ord. No. 1645, § 18.80.2680, 8-15-2005; Ord. No. 1693, § 29(18.80.2680), 2-20-2007; Ord. No. 1761, exh. R(18.80.2680), 7-6-2009) Sec. 38.42.2740. Roof sign. Any sign erected and constructed on and over the roof of a building, supported by the roof structure, and extending vertically above any portion of the roof. Roof signs shall not include signs located on a mansard roof if the sign is mounted vertically and integrated with the roof. For the purpose of this chapterarticle, architecturally integrated mansard signs and other architecturally integrated signs located below the principal roofline shall be classified as wall signs. (Ord. No. 1645, § 18.80.2690, 8-15-2005; Ord. No. 1693, § 29(18.80.2690), 2-20-2007; Ord. No. 1761, exh. R(18.80.2690), 7-6-2009) Sec. 38.42.2750. School. A. Any: 1. Pre-primary, primary or grammar, public, parochial or private school or high school; 2. Preparatory school or academy, public or founded, or owned or conducted by or under the sponsorship of a religious or charitable organization; 3. Private preparatory school or academy furnishing courses of instruction substantially equivalent to the courses offered by public high schools for preparation of admission to college or universities which award B.A. or B.S. degrees; 4. Junior college or university, public or founded, or conducted by or under the sponsorship of a religious or charitable organization; or 5. Private school when not conducted as a commercial enterprise for the profit of individual owners or stockholders. (Ord. No. 1645, § 18.80.2700, 8-15-2005; Ord. No. 1693, § 29(18.80.2700), 2-20-2007; Ord. No. 1761, exh. R(18.80.2700), 7-6-2009) Sec. 38.42.2760. Screening. A method of visually shielding or obscuring an abutting or nearby structure or use from another through the use of solid or nearly solid barriers (e.g., wall, fence, plantings, berms). (Ord. No. 1645, § 18.80.2710, 8-15-2005; Ord. No. 1693, § 29(18.80.2710), 2-20-2007; Ord. No. 1761, exh. R(18.80.2710), 7-6-2009) Sec. 38.42.2770. Security lighting. All outdoor lighting used for, but not limited to, illumination for walkways, roadways, equipment yards, parking lots and outdoor security where general illumination for safety or security of the grounds is the primary concern. (Ord. No. 1645, § 18.80.2720, 8-15-2005; Ord. No. 1693, § 29(18.80.2720), 2-20-2007; Ord. No. 1761, exh. R(18.80.2720), 7-6-2009) Sec. 38.42.2780. Second or subsequent front yard or corner side yard. A yard on a corner lot the area of which is bounded by a line extending from the front of the principal building (the front building line) to a point intersecting the side street right-of-way line (side lot line), then along the side lot line to a point intersecting the rear lot line, then along the rear lot line to a point intersecting the line formed by extending the wall of the nearest principal building paralleling the side lot line. (Ord. No. 1645, § 18.80.2730, 8-15-2005; Ord. No. 1693, § 29(18.80.2730), 2-20-2007; Ord. No. 1761, exh. R(18.80.2730), 7-6-2009) PROOFS Page 860 of 977 Sec. 38.42.2790. Setback. The distance from the property line to the nearest part of the applicable building, structure or sign, measured perpendicularly to the property line. (Ord. No. 1645, § 18.80.2740, 8-15-2005; Ord. No. 1693, § 29(18.80.2740), 2-20-2007; Ord. No. 1761, exh. R(18.80.2740), 7-6-2009) Sec. 38.42.2800. Setback line. That line that is the required minimum distance from the street right-of-way or public access easement line or any other lot line that establishes the area within which structures must be placed, as specified in this chaptertitle. (Ord. No. 1645, § 18.80.2750, 8-15-2005; Ord. No. 1693, § 29(18.80.2750), 2-20-2007; Ord. No. 1761, exh. R(18.80.2750), 7-6-2009) Sec. 38.42.2810. Sewer, public. Any sanitary sewer line owned and maintained by the city, whether or not installed by the city. (Ord. No. 1645, § 18.80.2760, 8-15-2005; Ord. No. 1693, § 29(18.80.2760), 2-20-2007; Ord. No. 1761, exh. R(18.80.2760), 7-6-2009) Sec. 38.42.2820. Shared access. A fixed automotive and pedestrian access location from a street to two or more adjoining properties which mutually have the right and ability to use the access, and which has been established by an easement or other legally binding means. (Ord. No. 1645, § 18.80.2770, 8-15-2005; Ord. No. 1693, § 29(18.80.2770), 2-20-2007; Ord. No. 1761, exh. R(18.80.2770), 7-6-2009) Sec. 38.42.2830. Shopping mall. A multitenant retail structure where tenants are located on both sides of a covered walkway with direct pedestrian access to all establishments from the walkway. (Ord. No. 1645, § 18.80.2780, 8-15-2005; Ord. No. 1693, § 29(18.80.2780), 2-20-2007; Ord. No. 1761, exh. R(18.80.2780), 7-6-2009) Sec. 38.42.2840. Sign. Any device, fixture, placard or structure that uses any color, form, graphic, illumination, symbol or writing to advertise, announce the purpose of, or identify the purpose of a person or entity, or to communicate information of any kind to the public. (Ord. No. 1645, § 18.80.2790, 8-15-2005; Ord. No. 1693, § 29(18.80.2790), 2-20-2007; Ord. No. 1761, exh. R(18.80.2790), 7-6-2009) Sec. 38.42.2850. Side yard. A yard extending between the front building line and the rear building line, the width of which is the least distance between the side lot line and the nearest part of the principal building. (Ord. No. 1645, § 18.80.2800, 8-15-2005; Ord. No. 1693, § 29(18.80.2800), 2-20-2007; Ord. No. 1761, exh. R(18.80.2800), 7-6-2009) Sec. 38.42.2860. Site plan. A scale drawing showing the accurate location of all structures, streets, alleys and parking areas, existing and proposed, on subject property or any other information as may be required by this chaptertitle. (Ord. No. 1645, § 18.80.2810, 8-15-2005; Ord. No. 1693, § 29(18.80.2810), 2-20-2007; Ord. No. 1761, exh. R(18.80.2810), 7-6-2009) PROOFS Page 861 of 977 Sec. 38.42.2870. Small-scale wireless facility. A wireless facility less than 25 feet in height from the base to the highest point including attachments. Examples of supporting structures are monopoles, self-supporting (lattice) towers, guy-wire supported towers and other similar structures. When calculating the height of a facility, other structures designed for other uses such as buildings or water towers shall not be included in the calculation. This definition excludes those facilities meeting the definition of a micro-scale wireless facility. Some illustrated examples of locations for possible small-scale wireless facilities are shown in the Appendix A to this chapter. (Ord. No. 1645, § 18.80.2820, 8-15-2005; Ord. No. 1693, § 29(18.80.2820), 2-20-2007; Ord. No. 1761, exh. R(18.80.2820), 7-6-2009) Sec. 38.42.2880. Small tree. A tree of a species which normally reaches a height of less than 25 feet upon maturity. (Ord. No. 1645, § 18.80.2830, 8-15-2005; Ord. No. 1693, § 29(18.80.2830), 2-20-2007; Ord. No. 1761, exh. R(18.80.2830), 7-6-2009) Sec. 38.42.2890. Soil. A medium in which plants will grow. (Ord. No. 1645, § 18.80.2840, 8-15-2005; Ord. No. 1693, § 29(18.80.2840), 2-20-2007; Ord. No. 1761, exh. R(18.80.2840), 7-6-2009) Sec. 38.42.2900. Special event sign. A temporary sign which advertises special civic events and activities such as street fairs, community festivals, parades, farmers’ markets and charity benefits. (Ord. No. 1645, § 18.80.2850, 8-15-2005; Ord. No. 1693, § 29(18.80.2850), 2-20-2007; Ord. No. 1761, exh. R(18.80.2850), 7-6-2009) Sec. 38.42.2910. Square. Open space that may encompass an entire block, is located at the intersection of important streets, and is set aside for civic purposes, and consists of paved walks, lawns, trees and civic buildings. (Ord. No. 1645, § 18.80.2860, 8-15-2005; Ord. No. 1693, § 29(18.80.2860), 2-20-2007; Ord. No. 1761, exh. R(18.80.2860), 7-6-2009) Sec. 38.42.2920. Stable, commercial. Any building or complex of buildings and pastures which is designed, arranged, used or intended to be used for equestrian purposes, where less than 75 percent of the capacity is for the use of the owner or resident of the property. A public stable is an agricultural activity. (Ord. No. 1645, § 18.80.2870, 8-15-2005; Ord. No. 1693, § 29(18.80.2870), 2-20-2007; Ord. No. 1761, exh. R(18.80.2870), 7-6-2009) Sec. 38.42.2930. Stable, private. Any building located on a lot which is designed, arranged, used or intended to be used for not more than four horses for the private use of the owner of the lot, but shall not exceed 6,000 square feet in area. (Ord. No. 1645, § 18.80.2880, 8-15-2005; Ord. No. 1693, § 29(18.80.2880), 2-20-2007; Ord. No. 1761, exh. R(18.80.2880), 7-6-2009) Sec. 38.42.2940. Start of construction. The commencement of clearing, grading, filling or excavating to prepare a site for construction. PROOFS Page 862 of 977 (Ord. No. 1645, § 18.80.2890, 8-15-2005; Ord. No. 1693, § 29(18.80.2890), 2-20-2007; Ord. No. 1761, exh. R(18.80.2890), 7-6-2009) Sec. 38.42.2950. Stealth or camouflaged. Placement of a wireless facility in such a way that it may not be discerned as being separate from the principal use of a site. This may be accomplished through visual screening, use of color or encasement of the facility within an existing structure such as a steeple. A stealth installation may also include the placement of a new structure to contain the facility so long as the new structure complies with the height, setback and other requirements of the zoning code or is otherwise exempt from those requirements. (Ord. No. 1645, § 18.80.2900, 8-15-2005; Ord. No. 1693, § 29(18.80.2900), 2-20-2007; Ord. No. 1761, exh. R(18.80.2900), 7-6-2009) Sec. 38.42.2960. Street. A right-of-way, dedicated or otherwise legally established, for public use by motorized and nonmotorized vehicles and pedestrians, usually affording the principal means of access to abutting property. (Ord. No. 1645, § 18.80.2910, 8-15-2005; Ord. No. 1693, § 29(18.80.2100), 2-20-2007; Ord. No. 1761, exh. R(18.80.2910), 7-6-2009) Sec. 38.42.2970. Street frontage. Any property line separating a lot from a street other than an alley; the front lot line. (Ord. No. 1645, § 18.80.2920, 8-15-2005; Ord. No. 1693, § 29(18.80.2920), 2-20-2007; Ord. No. 1761, exh. R(18.80.2920), 7-6-2009) Sec. 38.42.2980. Street, public. Any street which has been dedicated to or is otherwise publicly owned. Any street not a public street shall be deemed a private street. (Ord. No. 1645, § 18.80.2930, 8-15-2005; Ord. No. 1693, § 29(18.80.2930), 2-20-2007; Ord. No. 1761, exh. R(18.80.2930), 7-6-2009) Sec. 38.42.2990. Street types. A. For the purposes of these regulations, street types are defined as follows: 1. Alley. A street used primarily for vehicular access to the rear of properties which abut and are served by public or private streets. 2. Arterial. A street or road having the primary function of moving traffic with emphasis on a high level of mobility for through movement and the secondary function of providing limited access to adjacent land. Arterial streets are generally designated in the Bozemancity transportation plan, however, streets not depicted in the Bozemancity transportation plan may be designated as arterials by the city engineer. a. Principal arterial. Serves the major centers of activity, the highest traffic volume corridors, and the longest trip distances in an urbanized area. This group of streets carries the highest proportion of the total traffic within the urban area with typical loads of 10,000 to 35,000 vehicles per day. Most of the vehicles entering and leaving the urban area, as well as most through traffic bypassing the central business district, utilize principal arterials. Significant intra-area travel, such as between central business districts and outlying residential areas, and between major suburban centers, are served by major arterials. PROOFS Page 863 of 977 b. Minor arterial. Interconnects with and augments the urban principal arterial system. It accommodates trips of moderate length and at a somewhat lower level of travel mobility than principal arterials, and it distributes travel to smaller geographic areas. With an emphasis on traffic mobility, this street network includes all arterials not classified as principal arterials while providing access to adjacent lands. Minor arterials typically carry 5,000 to 15,000 vehicles per day. 3. Collector. A street or road that provides equal priority to the movement of traffic, and to the access of residential, business and industrial areas. This type of roadway differs from those of the arterial system in that the facilities on the collector system may traverse residential neighborhoods. The system distributes trips from the arterials to ultimate destinations. The collector streets also collect traffic from local streets in the residential neighborhoods, channeling it into the arterial system. Collectors typically carry 2,000 to 10,000 vehicles per day. Collector streets are typically designated in the Bozemancity transportation plan, however, additional streets may be designated as collectors by the city engineer. 4. Cul-de-sac. A street having only one outlet for vehicular traffic and terminating in a turnaround area. 5. Dead-end street. A street having only one outlet for vehicular traffic. 6. Half-street. A portion of the width of a street, usually along the outside perimeter of a subdivision, where the remaining portion of the street must be located on adjacent property. 7. Local streets. A street having the primary purpose of permitting access to abutting lands and connections to higher systems. Generally, service to higher speed traffic movements are intentionally discouraged. They typically carry 1,000 to 3,000 vehicles per day but can carry in excess of 6,000. 8. Loop. A local street which begins and ends on the same street, generally used for access to properties and to control traffic access to arterials or collectors. (Ord. No. 1645, § 18.80.2940, 8-15-2005; Ord. No. 1693, § 29(18.80.2940), 2-20-2007; Ord. No. 1761, exh. R(18.80.2940), 7-6-2009) Sec. 38.42.3000. Structure. Anything constructed or erected which requires location on the ground; and for the purposes of floodplain review anything which may impede, retard or alter the pattern of flow of water in a floodplain. (Ord. No. 1645, § 18.80.2950, 8-15-2005; Ord. No. 1693, § 29(18.80.2950), 2-20-2007; Ord. No. 1761, exh. R(18.80.2950), 7-6-2009) Sec. 38.42.3010. Structural alteration. Any change in the supporting members of a building, such as bearing walls or partitions, columns, beams or girders, or any change in the exterior walls or the roof. (Ord. No. 1645, § 18.80.2960, 8-15-2005; Ord. No. 1693, § 29(18.80.2960), 2-20-2007; Ord. No. 1761, exh. R(18.80.2960), 7-6-2009) Sec. 38.42.3020. Subdivider. Any person, firm, corporation or other entity who causes land to be subdivided or who proposes a subdivision of land. PROOFS Page 864 of 977 (Ord. No. 1645, § 18.80.2970, 8-15-2005; Ord. No. 1693, § 29(18.80.2970), 2-20-2007; Ord. No. 1761, exh. R(18.80.2970), 7-6-2009) Sec. 38.42.3030. Subdivision. A division of land or land so divided that it creates one or more parcels containing less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased or otherwise conveyed, and shall include any resubdivision, and shall further include any condominium or area, regardless of its size, that provides or will provide multiple space for recreational camping vehicles or manufactured homes. A subdivision shall comprise only those parcels less than 160 acres that cannot be described as a one-quarter aliquot part of a United States government section when the parcels have been segregated from the original tract, and the plat thereof shall show all such parcels whether contiguous or not. (Ord. No. 1645, § 18.80.2980, 8-15-2005; Ord. No. 1693, § 29(18.80.2980), 2-20-2007; Ord. No. 1761, exh. R(18.80.2980), 7-6-2009) Sec. 38.42.3040. Subdivision or development construction yard. A temporary office and/or vehicular and material storage yard. (Ord. No. 1645, § 18.80.2990, 8-15-2005; Ord. No. 1693, § 29(18.80.2990), 2-20-2007; Ord. No. 1761, exh. R(18.80.2990), 7-6-2009) Sec. 38.42.3050. Substantial damage. Damage sustained by a structure where the cost of restoring the structure to its condition before damage would equal or exceed 50 percent of the market value of the structure before the damage occurred as determined by Gallatinthe county’s last equalized assessment roll. (Ord. No. 1645, § 18.80.3000, 8-15-2005; Ord. No. 1693, § 29(18.80.3000), 2-20-2007; Ord. No. 1761, exh. R(18.80.3000), 7-6-2009) Sec. 38.42.3060. Substantial improvement. A. Any repair, reconstruction or improvement of a structure, the cost of which equals or exceeds 50 percent of the market value of the structure either: 1. Before the improvement or repair is started; or 2. If the structure has been damaged, and is being restored, before the damage occurred. For the purposes of this definition, substantial improvement is considered to occur when the first construction to any wall, ceiling, floor or other structural part of the building commences. The term “substantial improvement” does not include: a. Any project for improvement of a structure to comply with existing state or local health, sanitary or safety code specifications which are solely necessary to ensure safe living conditions; or b. Any alteration of a structure listed on the National Register of Historic Places or state inventory of historic places. (Ord. No. 1645, § 18.80.3010, 8-15-2005; Ord. No. 1693, § 29(18.80.3010), 2-20-2007; Ord. No. 1761, exh. R(18.80.3010), 7-6-2009) Sec. 38.42.3070. Suitable fill. Fill material which is stable, compacted, well-graded, pervious, generally unaffected by water and frost, devoid of trash or similar foreign matter, devoid of tree stumps or other organic material and is fitting for the purpose of supporting the intended use and/or permanent structure. PROOFS Page 865 of 977 (Ord. No. 1645, § 18.80.3020, 8-15-2005; Ord. No. 1693, § 29(18.80.3020), 2-20-2007; Ord. No. 1761, exh. R(18.80.3020), 7-6-2009) Sec. 38.42.3080. Surveyor (registered land surveyor). A person licensed in conformance with the Montana Professional Engineers, Registration Act (MCA 37-67-101 through 37-67-332) to practice surveying in the state. (Ord. No. 1645, § 18.80.3030, 8-15-2005; Ord. No. 1693, § 29(18.80.3030), 2-20-2007; Ord. No. 1761, exh. R(18.80.3030), 7-6-2009) Sec. 38.42.3090. Swap meet. Any permanent or temporary sales or lot where the sale or trade of goods, materials and merchandise takes place outside any permanent structure, from within temporary structures or from vehicles and where several sellers or traders may congregate for the purpose of selling or trading. (Ord. No. 1645, § 18.80.3040, 8-15-2005; Ord. No. 1693, § 29(18.80.3040), 2-20-2007; Ord. No. 1761, exh. R(18.80.3040), 7-6-2009) Sec. 38.42.3100. Temporary use. A use established for a fixed period of time with the intent to discontinue such use upon the expiration of the time period. (Ord. No. 1645, § 18.80.3050, 8-15-2005; Ord. No. 1693, § 29(18.80.3050), 2-20-2007; Ord. No. 1761, exh. R(18.80.3050), 7-6-2009) Sec. 38.42.3110. Transit stop. Improvements and facilities at selected points along transit routes for passenger pickup, dropoff and waiting. Facilities and improvements may include shelters, benches, signs, structures and other improvements to provide security, protection from the weather and access to nearby services. (Ord. No. 1645, § 18.80.3060, 8-15-2005; Ord. No. 1693, § 29(18.80.3060), 2-20-2007; Ord. No. 1761, exh. R(18.80.3060), 7-6-2009) Sec. 38.42.3120. Townhouse. A dwelling unit, located on its own lot, that shares one or more common or abutting walls with one or more dwelling units, each located on its own lot. A townhouse does not share common floors/ceilings with other dwelling units. (Ord. No. 1645, § 18.80.3070, 8-15-2005; Ord. No. 1693, § 29(18.80.3070), 2-20-2007; Ord. No. 1761, exh. R(18.80.3070), 7-6-2009) Sec. 38.42.3130. Townhouse cluster. A building consisting of three or more noncommunicating, attached one-household units placed side-by-side and/or back-to-back, with no unit located over another, and having a common wall between each two adjacent dwelling units. (Ord. No. 1645, § 18.80.3080, 8-15-2005; Ord. No. 1693, § 29(18.80.3080), 2-20-2007; Ord. No. 1761, exh. R(18.80.3080), 7-6-2009) Sec. 38.42.3140. Tract of record. An individual parcel of land, irrespective of ownership, that can be identified by legal description, independent of any other parcel of land, using documents on file in the records of the county clerk and recorder’s office. PROOFS Page 866 of 977 (Ord. No. 1645, § 18.80.3090, 8-15-2005; Ord. No. 1693, § 29(18.80.3090), 2-20-2007; Ord. No. 1761, exh. R(18.80.3090), 7-6-2009) Sec. 38.42.3150. Uniformity ratio. In outdoor lighting, a measure indicating how evenly light is distributed across a surface as expressed in a ratio of one value to another, such as average to minimum, or maximum to minimum. Using ratios, perfect uniformity would be 1:1. (Ord. No. 1645, § 18.80.3100, 8-15-2005; Ord. No. 1693, § 29(18.80.3100), 2-20-2007; Ord. No. 1761, exh. R(18.80.3100), 7-6-2009) Sec. 38.42.3160. Use. The employment or occupation of a building, structure or land for a person’s service, benefit or enjoyment. (Ord. No. 1645, § 18.80.3110, 8-15-2005; Ord. No. 1693, § 29(18.80.3110), 2-20-2007; Ord. No. 1761, exh. R(18.80.3110), 7-6-2009) Sec. 38.42.3170. Usable lot area. The portion of an area of a lot exclusive of setbacks or other building restrictions within which structures subject to setbacks may be placed. (Ord. No. 1761, exh. R(18.80.3115), 7-6-2009) Sec. 38.42.3180. Variance. A modification or variation of the provisions of this chaptertitle as applied to a specific piece of property. (Ord. No. 1645, § 18.80.3120, 8-15-2005; Ord. No. 1693, § 29(18.80.3120), 2-20-2007; Ord. No. 1761, exh. R(18.80.3120), 7-6-2009) Sec. 38.42.3190. Violation. The failure of a structure, subdivision, use of land or other development to be fully compliant with this chaptertitle. (Ord. No. 1645, § 18.80.3130, 8-15-2005; Ord. No. 1693, § 29(18.80.3130), 2-20-2007; Ord. No. 1761, exh. R(18.80.3130), 7-6-2009) Sec. 38.42.3200. Wall sign. Any sign painted on, attached to or erected against the wall of a building, structure, canopy or awning with the exposed face of the sign parallel to the plane of said wall or structure. The sign must be attached in a manner so that it does not extend six inches beyond the wall. (Ord. No. 1645, § 18.80.3140, 8-15-2005; Ord. No. 1693, § 29(18.80.3140), 2-20-2007; Ord. No. 1761, exh. R(18.80.3140), 7-6-2009) Sec. 38.42.3210. Warehouse. An enclosed building designed and used primarily for the storage of goods and materials. (Ord. No. 1645, § 18.80.3150, 8-15-2005; Ord. No. 1693, § 29(18.80.3150), 2-20-2007; Ord. No. 1761, exh. R(18.80.3150), 7-6-2009) Sec. 38.42.3220. Watercourse. Any stream, river, creek, drainage, waterway, gully, ravine or wash in which some or all of the water is naturally occurring, such as runoff or springs, and which flows either continuously or intermittently and has a definite channel, bed and banks, and includes any area adjacent thereto subject to inundation by reason of overflow. In the event of a braided or other multiple channel PROOFS Page 867 of 977 configuration of a watercourse, the area of the watercourse shall be that area lying between the two outermost high-water marks, as defined in this chaptertitle. The term “watercourse” shall not be construed to mean any facility created exclusively for the conveyance of irrigation water or stormwater. The city may consult with other agencies with expertise in this matter when there is a question of whether a particular water body is a watercourse. (Ord. No. 1645, § 18.80.3160, 8-15-2005; Ord. No. 1693, § 29(18.80.3160), 2-20-2007; Ord. No. 1761, exh. R(18.80.3160), 7-6-2009) Sec. 38.42.3230. Way-finding signage. A set of coordinated signs which are intended to give directional guidance to and within a defined district and to assist pedestrians or vehicles in finding areas of common interest or convenience. (Ord. No. 1769, § 20(18.80.3165), 12-28-2009) Sec. 38.42.3240. Wetland. A. Those areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, and meet the established criteria briefly described below: 1. Vegetation. A prevalence of hydrophytic vegetation. Hydrophytic species, due to morphological, physiological, and/or reproductive adaptation, have the ability to grow, effectively compete, reproduce, and/or persist in anaerobic soil conditions. 2. Soils. A hydric soil is a soil that formed under conditions of saturation, flooding, or ponding long enough during the growing season to develop anaerobic conditions in the upper part. 3. Hydrology. The area is inundated either permanently or periodically, or the soil is saturated to the surface at some time during the growing season of the prevalent vegetation at a duration sufficient to induce anaerobic and reducing conditions. (Ord. No. 1645, § 18.80.3170, 8-15-2005; Ord. No. 1693, § 29(18.80.3170), 2-20-2007; Ord. No. 1761, exh. R(18.80.3170), 7-6-2009) Sec. 38.42.3250. Wholesale. The sale of goods and merchandise for resale instead of for direct consumption. (Ord. No. 1645, § 18.80.3180, 8-15-2005; Ord. No. 1693, § 29(18.80.3180), 2-20-2007; Ord. No. 1761, exh. R(18.80.3180), 7-6-2009) Sec. 38.42.3260. Wildlife. Animals that are neither human, domesticated, nor feral descendants of commonly domesticated animals. (Ord. No. 1645, § 18.80.3100, 8-15-2005; Ord. No. 1693, § 29(18.80.3190), 2-20-2007; Ord. No. 1761, exh. R(18.80.3190), 7-6-2009) Sec. 38.42.3270. Wildlife habitat. The place or type of habitat where wildlife naturally lives. (Ord. No. 1645, § 18.80.3200, 8-15-2005; Ord. No. 1693, § 29(18.80.3200), 2-20-2007; Ord. No. 1761, exh. R(18.80.3200), 7-6-2009) PROOFS Page 868 of 977 Sec. 38.42.3280. Window sign. Any sign painted, attached, glued or otherwise affixed to a window for the purpose of being visible from the exterior of the building. (Ord. No. 1645, § 18.80.3210, 8-15-2005; Ord. No. 1693, § 29(18.80.3210), 2-20-2007; Ord. No. 1761, exh. R(18.80.3210), 7-6-2009) Sec. 38.42.3290. Wireless facility. An unstaffed facility for the transmission or reception of radio frequency (RF), microwave or other signals for commercial communications purposes, typically consisting of an equipment enclosure, an antenna support structure and one or more antennae. This definition excludes amateur radios, Essential Services (Type I), satellite earth stations and private receive-only antennae, such as for the reception of television signals. (Ord. No. 1645, § 18.80.3220, 8-15-2005; Ord. No. 1693, § 29(18.80.3220), 2-20-2007; Ord. No. 1761, exh. R(18.80.3220), 7-6-2009) Sec. 38.42.3300. Wrecking yard. A place, lot or area where the primary function is that of dismantling, storage, abandonment or sale of goods and materials as parts or scraps. (Ord. No. 1645, § 18.80.3230, 8-15-2005; Ord. No. 1693, § 29(18.80.3230), 2-20-2007; Ord. No. 1761, exh. R(18.80.3230), 7-6-2009) Sec. 38.42.3310. Yard. A space on the same lot with a principal building, which is open and unoccupied from the ground upward or from the ground downward other than by steps, walks, terraces, driveways, lamp posts and similar structures, and unobstructed by structures, except as otherwise provided in this chaptertitle. (Ord. No. 1645, § 18.80.3240, 8-15-2005; Ord. No. 1693, § 29(18.80.3240), 2-20-2007; Ord. No. 1761, exh. R(18.80.3240), 7-6-2009) Sec. 38.42.3320. Zoning commission. The Bozeman Zoning Commission. (Ord. No. 1645, § 18.80.3250, 8-15-2005; Ord. No. 1693, § 29(18.80.3250), 2-20-2007; Ord. No. 1761, exh. R(18.80.3250), 7-6-2009) Sec. 38.42.3330. Zoning map. A map with all notations, dimensions, references and symbols shown thereon depicting individual zoned districts in accordance with this chaptertitle. (Ord. No. 1645, § 18.80.3260, 8-15-2005; Ord. No. 1693, § 29(18.80.3260), 2-20-2007; Ord. No. 1761, exh. R(18.80.3260), 7-6-2009) APPENDIX A ILLUSTRATIONS [GRAPHIC - Figure 38.08.050-001] [GRAPHIC - Figure 38.08.070-002] [GRAPHIC - Figure 38.10.050-003] [GRAPHIC - Figure 38.21.050-004] PROOFS Page 869 of 977 [GRAPHIC - Figure 38.21.050-005 Detached Structures] [GRAPHIC - Figure 38.21.050-006 Garage Setbacks] [GRAPHIC - Figure 38.21.060-007 Permitted Encroachments] [GRAPHIC - Figure 38.21.060-008 Zero Lot Line Conditions] [GRAPHIC - Figure 38.21.060-009 Special Yard Setbacks] [GRAPHIC - Figure 38.22.030-010 Accessory Dwelling Units] [GRAPHIC - Figure 38.22.030-011 Accessory Dwelling Units with Dormer] [GRAPHIC - Figure 38.22.140-012 Mini Warehouses] [GRAPHIC - Figure 38.22.150-013 Outdoor Sales and Display] [GRAPHIC - Figure 38.22.170-014 Recreational Vehicle Park and Overnight Campground] [GRAPHIC - Figure 38.22.190-015 Stable, Commercial] [GRAPHIC - Figure 38.23.040-016 Blocks] [GRAPHIC - 38.23.100-017 100-Year Floodplain] [GRAPHIC - 38.23.100-018 Watercourse Setback on a Slope] [GRAPHIC - 38.23.100-019 Watercourse Setback] [GRAPHIC - 38.23.100-020 Wetlands] [GRAPHIC - Figure 38.23.110-021 Ridgeline Protection Area] [GRAPHIC - Figure 38.23.130-022 Fences] [GRAPHIC - Figure 38.23.150-023 Lighting] [GRAPHIC - Figure 38.24.030-024 Intersections] [GRAPHIC - Figure 38.24.090-025 Residential Access] [GRAPHIC - Figure 38.24.090-026 Commercial and Industrial Accesses] [GRAPHIC - Figure 38.24.090-027 Spacing Standards for Drive Accesses] [GRAPHIC - Figure 38.24.100-028 Street Vision Triangles] [GRAPHIC - Figure 38.25.020-029 Parking Stall Dimensions] [GRAPHIC - Figure 38.25.020-030 Parking Aisles from Table 38.25.020] [GRAPHIC - Figure 38.25.020-031 Parallel Parking Layout] [GRAPHIC - Figure 38.25.020-032 Curb Stops] PROOFS Page 870 of 977 [GRAPHIC - Figure 38.25.040-033 ADA Parking Sign] [GRAPHIC - Figure 38.25.040-034 Disabled Parking (Van Accessible)] [GRAPHIC - Figure 38.26.050-035 Yards] [GRAPHIC - Figure 38.26.050-036 Parking Lot Landscape Screening] [GRAPHIC - Figure 38.26.050-037] [GRAPHIC - Figure 38.26.050-038 Dimensions of Acceptable Landscape Materials] [GRAPHIC - Figure 38.28-039 Signs] [GRAPHIC - Figure 38.31-040 Section View of Floodplain] [GRAPHIC - Figure 38.42.230-041 Area of Signs] [GRAPHIC - Figure 38.42.370-042 Basement] [GRAPHIC - Figure 38.42.440-043 Building Height] [GRAPHIC - Figure 38.42.1180-044 Front Line of Building] [GRAPHIC - Figure 38.42.1330-045 Height of Pole Style Sign] [GRAPHIC - Figure 38.42.1540-046 Large Scale Wireless Facility] [GRAPHIC - Figure 38.42.1620-047 Light Trespass] [GRAPHIC - Figure 38.42.2220-048 Parapet (for Signage)] [GRAPHIC - Figure 38.42.2650-049 Required Yard] [GRAPHIC - Figure 38.42.2870-050 Small Scale Wireless Facility] PROOFS Page 871 of 977 Chapter 39 RESERVED PROOFS Page 872 of 977 Chapter 40 UTILITIES* *State law reference—Utility services, MCA 7-13-101 et seq.; municipal utilities, MCA 69-7-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. WATER DIVISION 1. GENERALLY Secs. 40.02.010--40.02.140. Reserved. DIVISION 2. PROTECTION OF WATER SUPPLY Sec. 40.02.150. Interfering with or polluting water supply prohibited352. It is unlawful for any person, without the written permission of the director of public servicesafety, to manipulate, interfere with and/or obstruct, in whole or in part, directly or indirectly, the free flow of water in any part of the municipal water carrying, treatment and distribution system of the city, whether within or without the corporate limits of the city; and/or to manipulate, interfere with, injure, deface, remove and/or destroy any part of the water carrying, treatment and distribution system of the city, including in whole and in part any and all appliances, pipelines, aqueducts, reservoirs, telephone system and any signaling system or device, gates, headgates, measuring devices, ditches, canals, trenches, drains, valves, valve parts, manholes, hydrants, sprinkling-pipes, fences, gates, posts, signs, notices, storage tanks, Pear Street Booster Station and/or appurtenances of every kind and description of the water carrying, treatment and distribution system and/or used in connection therewith and/or for the protection thereof, and/or any part thereof; and/or to pollute and/or impair the purity and wholesomeness, by any means or manner whatsoever, of any part of the water supply of the municipal water carrying, treatment and distribution system within and without the corporate limits of the city. (Code 1982, § 13.04.010) Sec. 40.02.160. Watershed boundaries designated; trespassing prohibited.353 It is unlawful for any person not duly authorized or permitted as provided in section 40.02.150 to enter or trespass upon the watersheds and sources of the municipal water supply of the city, which are described as follows: Bozeman Creek Watershed. In Township 3 South, Range 6 East, Gallatin County, Montana. All of section 8. S 1/2 of SW 1/4 and S 1/2 of the S 1/2 of SE 1/4 of section 9. S 1/2 of SW 1/4 of SW 1/4 of section 10. W 1/2 of SE 1/4, SW 1/4 and SW 1/4 of NW 1/4 of section 14. All of sections 15, 16 and 17. E 1/2 and E 1/2 of W 1/2 of section 18. NE 1/4 and N 1/2 of SE 1/4 of section 19. 352 Note changes requested by city staff. 353 Entire section 40.02.160 deleted at city's request. PROOFS Page 873 of 977 All of sections 20, 21, 22, 23, and S 1/2 of section 24. All of sections 25, 26, 27, 28 and NE 1/4 of section 29. All of sections 34, 35 and 36. In Township 3 South, Range 7 East, Gallatin County, Montana. Section 19 and W 1/2 of section 20. SE 1/4, SW 1/4 and NW 1/4 of section 29. All of sections 30, 31, 32 and W 1/2 of section 33. In Township 4 South, Range 6 East, Gallatin County, Montana. Sections 1, 2 and NE 1/4 of section 3. NE 1/4 of section 11. Section 12 and E 1/2 of section 13. In Township 4 South, Range 7 East, Park County, Montana. NW 1/4 and W 1/2 of SW 1/4 of section 4, Park County, Montana. All of sections 5, 6, 7, 8, 18 and W 1/2 of section 17, Park County, Montana. Lyman Creek Watershed. In Township 1 South, Range 6 East, Gallatin County, Montana. The SE 1/4 of section 21. The NE 1/4 of the NE 1/4 of section 28 (Lot 1). Beginning at a point in the west line of the NE 1/4 of the SW 1/4 of section 28, said point being 790 feet, more or less, north of the SW corner of said NE 1/4 of SW 1/4; thence north 63 1/2 degrees east, 780 feet more or less; thence north 24 1/2 degrees east, 1005.7 feet more or less; thence north 34 1/2 degrees east, 381.1 feet more or less, to a point in the west line of Lot 3 of said section 28; thence north 54 degrees east, 1594.5 feet more or less to a point in the east line of Lot 2 of said section 28, which point is 700 feet more or less south of the northeast corner of said Lot 2; thence north on the line between Lots 1 and 2, to the section line between said sections 21 and 28; thence west along said section line to the northwest corner of said section 28; thence south to the northwest corner of the SW 1/4 of the NW 1/4 of said section 28; thence south to the northwest corner of the SE 1/4 of the NW 1/4 of said section 28; thence south to the point of beginning. Section 22. The SE 1/4 of section 15, and the SW 1/4 of section 14. A tract of land (reservoir site) 800 feet east and west by 400 feet north and south (7.57 acres) in the northeast corner of the NE 1/4 of section 32, and a tract of land (reservoir site) 311.14 feet east and west by 140 north and south (1 acre) in the southeast corner of the SE 1/4 of section 29. (Code 1982, § 13.04.020) PROOFS Page 874 of 977 Chapter 13.08 WATER SYSTEM354 Article I. Definitions 13.08.010. General. The terms defined in this section shall for all purposes of this chapter have the meanings herein specified, unless the context clearly otherwise requires: __ "This ordinance" means the ordinance codified in this chapter as originally adopted or as it may from time to time be amended by one or more ordinance amendments adopted pursuant to the applicable provisions hereof. __ All references in this chapter to designated "sections" and other subdivisions are to the designated sections and other subdivisions of this instrument as originally adopted. __ The words "herein," "hereof" and "hereunder" and other words of similar import without reference to any particular section or subdivision refer to the ordinance codified in this chapter as a whole and not to any particular section or other subdivision unless the context clearly indicates otherwise. __ The terms defined in this section shall include the plural as well as the singular. __ All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles. __ All computations provided herein shall be made in accordance with generally accepted accounting principles. (Code 1982, § 13.08.010; Ord. No. 1115 § 1.01, 1982) 13.08.020. Other definitions. The following words shall have the following meanings: __ "Accountant" means a person who is a certified public accountant employed or retained by the city. __ "Act" means Montana Code Annotated, Title 7, Chapter 7, Part 44 (MCA 7-7-4401 et seq.)as heretofore and hereafter amended or supplemented. __ "Additional bonds" means any bonds issued pursuant to Article V of this chapter, exclusive of subordinate bonds. __ "Bonds" means all bonds issued pursuant to this chapter, including the Series 1982 bonds and any additional bonds, but exclusive of subordinate bonds. __ "Bond counsel" means any firm of nationally recognized bond counsel experienced in matters relating to the financing of public facilities, selected by the city. __ "Bond account" means the account created in section 13.08.150. __ "Bondholder" means the bearer of a bond. __ "City" means the city of Bozeman, Montana, and any successor to its functions hereunder. __ "City request," "city order" or "city consent" means, respectively, a written request, 354 Were these bonds paid off in 2001? Yes. Delete the chapter. PROOFS Page 875 of 977 order or consent of the commission, signed by the manager or other official of the city designated pursuant to a city resolution. __ "City resolution" means a resolution, ordinance or other appropriate enactment by the commission certified by an appropriate official thereof to have been duly adopted by the commission and to be in full force and effect on the date of such certification. __ "Code" means the Internal Revenue Code of 1954, as amended. All references herein to sections of the Code are to the sections thereof as they exist on the date of adoption of the ordinance codified in this chapter, but include any amendments of the provisions thereof. __ "Commission" means the city commission of the city or a successor to its functions. __ "Construction account" means the account created in section 13.08.130. __ "Depreciation account" means the account created in section 13.08.160. __ "Engineer" means an engineer or firm of engineers duly licensed in the state and experienced in the operation, design and construction of municipal water systems. __ "Fiscal year" means the 12-month period commencing July 1st and ending June 30th or any other 12-month period adopted by the commission as the fiscal year of the system. __ "Fund" or "water fund" means the water system fund created in section 13.08.120. __ "Government obligations" means direct general obligations of, or obligations the prompt payment of the principal of and the interest on which are fully and unconditionally guaranteed by, the United States of America. __ "Improvements" means any additions, enlargements, improvements, extensions or alterations of or to the system as it then exists (other than the project), and shall also mean any fixtures, structures, other facilities or personal property acquired or constructed by the city for use in connection with the system. __ "Independent" when used with respect to any specified person means such a person who: __ Is in fact independent; __ Does not have any direct financial interest or any material indirect financial interest in the city, other than the payment to be received under a contract for services to be performed by such person; and __ Is not connected with the city, the city as an official, officer, employee, promoter, underwriter, trustee, affiliate or person performing similar functions. __ "Interest payment date" means the stated maturity of an installment of interest on any of the bonds. __ "Manager" means the city manager or a successor to his functions. __ "Maturity" when used with respect to any bond means the date on which the principal of such bond becomes due and payable as therein or herein provided, whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise. __ "Maximum reserve requirement" means, as of the date of calculation, an amount of money equal to the average annual principal and interest requirements on outstanding bonds for the then remaining future fiscal years during the term of the PROOFS Page 876 of 977 outstanding bonds or such greater amount as may be required in connection with the issuance of a series of additional bonds. __ "MBIA insurance" means a policy of insurance and all amendments thereto, if any, issued by the municipal bond insurance association with respect to the Series 1982 bonds or any series of additional bonds. __ "Net revenues" means the revenues of the system remaining upon each monthly apportionment pursuant to section 4 hereof, after crediting to the operating account the amount required by section 13.08.140 to be credited thereto. The net revenues for a fiscal year shall be the aggregate of the net revenues for each of the 12 months therein after appropriate adjustments and accruals, if any. __ "Outstanding" when used with reference to bonds means, as of the date of determination, all bonds theretofore issued and delivered under this chapter except: __ Bonds theretofore cancelled by the city or delivered to the city cancelled or for cancellation; __ Bonds and portions of bonds for whose payment or redemption moneys or government obligations (as provided in Article VIII of this chapter) have been theretofore deposited for the holders of such bonds; provided, however, that if such bonds are to be redeemed, notice of such redemption have been duly given pursuant to this chapter or irrevocable instructions to call such bonds for redemption at a stated redemption date has been given to the paying agent; and __ Bonds in exchange for or in lieu of which other bonds have been issued and delivered pursuant to this chapter; provided, however, that in determining whether the holders of the requisite principal amount of outstanding bonds have given any request, demand, authorization, direction, notice, consent or waiver hereunder, bonds owned by the city shall be disregarded and deemed not to be outstanding. __ "Paying agent" means any person designated by or pursuant to this chapter to receive and disburse the principal of, premium, if any, and interest on the bonds on behalf of the city. __ "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government, or any agency or political subdivision thereof. __ "Principal and interest requirements on outstanding bonds" means, for any fiscal year, the amount required to pay the principal and the interest becoming due on all outstanding bonds during such fiscal year, to be determined on the assumption that each outstanding serial bond is to be paid on its stated maturity and each outstanding term bond is to be paid on its mandatory redemption date. __ "Qualified investments" means those obligations and securities set forth in section 13.08.190 hereof, in which revenues and other moneys may be invested. __ "Rates" means the rates, fees, charges and rentals imposed by the city for connection to and for the availability, use and benefit of the system and for the purchase of water and other commodities and services provided thereby. __ "Redemption date" when used with respect to any bond to be redeemed means the date on which it is to be redeemed pursuant hereto. __ "Redemption price" when used with respect to any bond to be redeemed means the PROOFS Page 877 of 977 price at which it is to be redeemed pursuant hereto. __ "Reserve account" means the account created in section 13.08.160. __ "Series 1982 bonds" shall mean the five million dollar aggregate principal amount of the city's water system revenue bonds, Series 1982. __ "Stated maturity" when used with respect to any bond or any installment of interest thereon means the date specified in such bond or the coupon representing such installment of interest as the fixed date on which principal of such bond or such installment of interest is due and payable. __ "Supplemental ordinance" means any ordinance supplemental or amendatory to the ordinance codified in this chapter adopted pursuant to Article VII of this chapter. __ "Subordinate bonds" means bonds or obligations issued by the city pursuant to section 13.08.230. __ "Surplus account" means the account created in section 13.08.180. __ "Surplus net revenues" means the net revenues of the system remaining upon each monthly apportionment pursuant to Article IV of this chapter, after crediting to the bond account and reserve account the amounts required by sections 13.08.150 and 13.08.160 to be credited thereto. __ "System" or "water system" means the real and personal properties owned or used by the city in connection with its acquisition, treatment and distribution of water, including without limitation all water rights, water storage facilities, water mains and distribution lines, water treatment and purification facilities, purifying equipment and facilities and all real and personal properties incidental thereto and used in connection therewith and all improvements thereto. (Code 1982, § 13.08.020; Ord. No. 1115 § 1.02, 1982) Article II. Findings and Authorization 13.08.030. The system. The city, pursuant to authority conferred by laws of the state has established and presently owns and operates the system. The city and the system have all necessary right and title to an adequate supply of water for its present and its projected requirements during the useful life of the project. (Code 1982, § 13.08.030; Ord. No. 1115 § 2.01, 1982) 13.08.040. The project. After investigation of the facts and as authorized by the Act, this council has determined it to be necessary and desirable and in the best interests of the city to acquire and construct the project. The project will consist of a water treatment plant, two major water transmission lines, water storage facilities and incidental and related real and personal properties all as more fully described in plans and specifications therefor prepared by the engineer for the project. Plans and specifications for the project have been prepared and approved. The total cost of the project, including construction contracts, engineering, legal, consulting and administration fees and expenses, insurance premiums, reserve funds and a reasonable allowance for contingencies, is presently estimated to be four million seven hundred twenty thousand dollars. In addition, it is estimated that an additional three hundred thousand dollars will be required to establish an initial bond reserve, eighty thousand dollars will be required to pay and retire outstanding water system revenue bonds and approximately one hundred sixty thousand dollars will be required to pay a premium for bond insurance and other costs of issuance with respect to the Series 1982 PROOFS Page 878 of 977 bonds issued to finance project costs. The city has applied to the Montana Public Service Commission for an increase in its rates to provide sufficient revenues to pay for the increased costs arising from the project and Series 1982 bonds and has obtained approval from the Public Service Commission for such increases. All acts of the commission and the city and its officers and employees with respect to authorizing, construction and financing the project heretofore taken and done and not inconsistent with this chapter are hereby ratified and confirmed. (Code 1982, § 13.08.040; Ord. No. 1115 § 2.02, 1982) 13.08.050. Authority for bonds. The city is duly authorized by the Act to issue the Series 1982 bonds in the aggregate principal amount of five million dollars for the purpose of paying costs of acquiring and constructing the project and costs and expenses incident thereto; to prescribe and collect just and equitable rates for connections to and use of the system and for services, facilities and commodities directly or indirectly furnished thereby; and to pledge and appropriate to the payment of the bonds the net revenues to be derived from the operation of the system as set forth herein. There are no bonds outstanding which are payable from or constitute a lien against the net revenues of the system except eighty thousand dollars of water revenue bonds due and payable in the principal amount of fifty thousand dollars on July 1st in the years 1983 and 1984. The city shall deposit in escrow with the paying agent for the outstanding bonds an amount of cash or cash and qualified securities sufficient to pay and redeem the bonds on July 1, 1983, and shall take all required action to call for redemption and prepay the bonds on said date. The clerk, director of finance and mayor are authorized and directed to call the outstanding bonds for redemption and execute and enter into instruments with respect thereto. The useful life of the system, as improved by the project, is greater than the term of the Series 1982 bonds. (Code 1982, § 13.08.050; Ord. No. 1115 § 2.03, 1982) 13.08.060 issuance and sale of series 1982. Bonds. The Series 1982 bonds shall be offered for sale at public, competitive sale in accordance with the provisions of the Act. Upon the sale of the Series 1982 bonds, the city shall, pursuant to and in accordance with this chapter, issue the Series 1982 bonds in the aggregate principal amount of five million dollars for the purpose of paying costs of the project. Costs of the project in excess of the proceeds of the Series 1982 bonds available therefor will be payable from investment income and other available funds of the system. (Code 1982, § 13.08.060; Ord. No. 1115 § 2.04, 1982) Article III. Series 1982 Bonds 13.08.070. Date, amount, denomination and maturity. The Series 1982 bonds shall be in the aggregate principal amount of five million dollars, shall be designated water system revenue bonds, Series 1982, shall be dated as of December 1, 1982, shall be one thousand in number and numbered from one through one thousand, in the denomination of five thousand dollars each and shall have stated maturities of December 1st in the years and amounts as follows: Year Amount Serial Number 1983 $ 90,000 1984 100,000 PROOFS Page 879 of 977 1985 115,000 1986 125,000 1987 140,000 1988 155,000 1989 170,000 1990 185,000 1991 205,000 1992 225,000 1993 250,000 1994 280,000 1995 305,000 1996 340,000 1997 375,000 1998 415,000 1999 460,000 2000 505,000 2001 560,000 (Code 1982, § 13.08.070; Ord. No. 1115 § 3.01, 1982) 13.08.080. Interest. The Series 1982 bonds shall bear interest payable on each June 1st and December 1st, commencing June 1, 1983 at the rate or rates per annum designated by the original purchaser thereof and approved by municipal resolution. (Code 1982, § 13.08.080; Ord. No. 1115 § 3.02, 1982) 13.08.090. Redemption. __ Series 1982 bonds maturing in the years 1983 through 1992 shall be payable on their respective stated maturities without option of prior payment, but those having stated maturities dates in the years 1993 through 2001 shall each be subject to redemption and prepayment at the option of the city, in inverse order of serial numbers, on December 1, 1992, and any interest payment date thereafter, at the redemption prices (expressed as a percentage of the principal amount of each such bond to be redeemed) set forth below opposite the respective redemption dates of redemption plus accrued interest to the redemption date, as follows: Redemption Date Redemption Price December 1, 1992 through June 1, 1997 101% December 1, 1997 and thereafter 100% __ Not less than 30 days before the date specified for redemption of any bond, notice of the call thereof shall be mailed by the city director of finance, by registered mail, to the holder, if known, to the original purchaser of the Series 1982 bonds and to the paying agent therefor, and PROOFS Page 880 of 977 shall also be published in one issue of the official newspaper of the city and in one issue of The Bond Buyer published in New York, New York. The city director of finance is directed to maintain a record of the names and addresses of the holders of the prepayable Series 1982 bonds so far as such information is made available to him, for the purpose of mailing such notices. (Code 1982, § 13.08.090; Ord. No. 1115 § 3.03, 1982) 13.08.100. Payment. The principal of and interest on the Series 1982 bonds shall be payable in any coin or currency of the United States of America which on the respective dates of payment is legal tender for public and private debts. The principal of and interest on the Series 1982 bonds shall be payable at a paying agent designated by the original purchaser thereof and approved by city resolution, or any successor paying agent designated in accordance with law. The city shall pay the reasonable charges and expenses of the paying agent. (Code 1982, § 13.08.100; Ord. No. 1115 § 3.04, 1982) 13.08.105. Form. The Series 1982 bonds and the interest coupons appurtenant thereto shall be in substantially the following form: UNITED STATES OF AMERICA STATE OF MONTANA COUNTY OF GALLATIN CITY OF BOZEMAN WATER SYSTEM REVENUE BOND, SERIES 1982 No. $5,000 KNOW ALL MEN BY THESE PRESENTS that the city of Bozeman (the city), a duly organized municipal corporation of Gallatin County, Montana, for value received promises to pay to bearer, solely from the Bond Account of its Water System Fund, the sum of FIVE THOUSAND DOLLARS on the 1st day of December, 19___, or, if this Bond is prepayable as stated below, on a date prior thereto on which it shall have been duly called for redemption, and to pay interest on said principal sum from said account from the date hereof until the principal sum is paid or, if this Bond is prepayable, until it has been duly called for redemption, at the rate of ____________________ percent (_____%) per annum, payable semiannually on June 1 and December 1 in each year, commencing June 1, 1983, interest to maturity being represented by and payable in accordance with and upon presentation and surrender of the interest coupons appurtenant hereto. Both principal and interest are payable at ____________________, in __________, __________, or a duly appointed successor paying agent, in any coin or currency of the United States of America which on the respective dates of payment is legal tender for public and private debts. This Bond is one of an issue in the principal amount of $5,000,000 (the Series 1982 Bonds), all of like date and tenor except as to serial number, interest rate, maturity date and redemption privilege, issued for the purpose of providing money to finance the construction of improvements (the Project) to the city's municipal water system (the Water System) and to refund outstanding water system revenue bonds pursuant to and in full conformity with the Constitution and laws of the State of Montana and the resolutions of said City thereunto enabling, including Title 7, Chapter 7, Part 44, Montana Code Annotated, and Ordinance No. _____ of the city, duly enacted on __________, __________ (the Authorizing Ordinance). The Series 1982 Bonds maturing in the years 1983 through 1992 are payable on their respective Stated Maturities without option of prior payment, but those having Stated Maturities in the years 1993 through 2001 are each subject to redemption and prepayment at the option of the city, in inverse order of serial numbers, on December 1, 1992, and any Interest Payment Date thereafter, at the Redemption Prices (expressed as a percentage of the principal amount of each PROOFS Page 881 of 977 such bond to be redeemed) set forth below opposite the respective Redemption Dates plus accrued interest to the Redemption Dates as follows: Redemption Date Redemption Price December 1, 1992 through June 1, 1997 101% December 1, 1997 and thereafter 100 Not less than 30 days before the date specified for redemption of any Bond, notice of the call thereof shall be mailed by the city Director of Finance, by registered mail, to the Holder, if known, to the Original Purchaser of the Series 1982 Bonds and to the Paying Agent therefor, and shall also be published in one issue of the official newspaper of the city and in one issue of The Bond Buyer published in New York, New York. The city Director of Finance is director to maintain a record of the names and addresses of the Holders of the prepayable Series 1982 Bonds so far as such information is made available to him, for the purpose of mailing such notices. IT IS CERTIFIED, RECITED, COVENANTED AND AGREED that the city has duly authorized and will forthwith construct and complete the construction of the Project, has fixed and established and will collect reasonable rates and charges for the services and facilities afforded by the System, in accordance with and subject to the regulations of the Montana Public Service Commission, and has created a special Water System Fund into which the gross revenues of the Water System, including all additions thereto and replacements and improvements thereof, will be paid, and a separate and special Bond Account in that fund, into which will be paid each month, from and as a first and prior lien on the Net Revenues of the Water System an amount which is equal to not less than the sum of one-sixth of the interest due within the next six months and one- twelfth of the principal due within the next 12 months with respect to all outstanding Bonds payable from that account, and into which shall be paid additional Net Revenues sufficient to accumulate and maintain a reserve therein equal to the average annual amount of principal and interest to fall due within any subsequent fiscal year on all such Bonds; that the Bond Account will be used only to pay the principal of and interest on Bonds issued pursuant to the authority herein recited; that the rates and charges for the Water System will from time to time be made and kept sufficient to provide gross income and revenues adequate to pay promptly the reasonable and current expenses of operating and maintaining the Water System and to produce in each fiscal year Net Revenues in excess of such current expenses equal to 125% of the maximum amount of principal and interest payable from the Revenue Bond account in any subsequent fiscal year; that additional Bonds and refunding Bonds may be issued and made payable from the Revenue Bond Account on a parity with the Series 1982 Bonds upon certain conditions set forth in the Authorizing Ordinance but no obligation will be otherwise incurred and made payable from the Net Revenues of the Water System, whether or not such obligation shall also constitute a general obligation and indebtedness of the city, unless the lien thereof shall be expressly made subordinate to the lien of the Series 1982 Bonds and parity Bonds on such Net Revenues; that all provisions for the security of the holder of this Bond set forth in the Authorizing Ordinance will be punctually and faithfully performed as therein stipulated; that all acts, conditions and things required by the Constitution and laws of the State of Montana and the ordinances and resolutions of the city to be done, to exist, to happen and to be performed in order to make this Bond a valid and binding special obligation of the city according to its terms have been done, do exist, have happened and have been performed as so required; and that this Bond and the interest hereon are payable solely from the Net Revenues of the Water System pledged and appropriated to the Revenue Bond Account and do not constitute a debt of the city within the meaning of any constitutional or PROOFS Page 882 of 977 statutory limitation or provision and the issuance of this Bond does not cause either the general or the special indebtedness of the city to exceed any constitutional or statutory limitation. [To be inserted if appropriate] [The payment of the principal and interest on the Series 1982 Bonds, as due in accordance with their respective terms, without regard to any acceleration thereof, is guaranteed by the Municipal Bonds Insurance Associations pursuant to and in accordance with the terms and provisions of a policy of insurance - Policy No. __________, a copy of which is on file with the paying agent.] IN WITNESS WHEREOF, the city of Bozeman, Gallatin County, Montana, by its City Commission, has caused this Bond and the certificate on the reverse side hereof and the coupons appurtenant hereto to be executed in its behalf by the signatures of the Mayor, Clerk of Commission and Director of Finance, and its corporate seal to be affixed hereto, all of such signatures being authentic facsimiles authorized by the officers to be printed hereon, except for the manual signature of one officer on the face of this Bond, and has caused this Bond to be dated as of June 1, 1982. _____________________________ Mayor Countersigned: _____________________________ Director of Finance Attest: ______________________________ Clerk of Commission (SEAL) (Form of Coupon) No. $ On the 1st day of June (December), 19___, unless the Bond described below is subject to and has been called for earlier redemption, the city of Bozeman, Gallatin County, Montana, will pay to bearer __________ ____________________, in __________ __________, ____________________, from the Bond Account in its Water System Fund, the amount shown hereon in lawful money of the United States of America for interest then due on its Water System Revenue Bond, Series 1982, dated June 1, 1982, No. _____. (Facsimile signature) (Facsimile signature) Director of Finance Clerk of Commission (Facsimile signature) Mayor (Form of certificate to be printed on the reverse side of each Bond, following a full copy of the legal opinion on the issue) We certify that the above is a full, true and correct copy of the legal opinion rendered by Bond Counsel, on the issue of Bonds of the city of Bozeman, Gallatin County, Montana, which includes the within Bond, dated as of the date of delivery of and payment for the Bonds. (Facsimile signature) (Facsimile signature) Director of Finance Clerk of Commission (Facsimile signature) PROOFS Page 883 of 977 Mayor (Code 1982, § 13.08.105; Ord. No. 1115 § 3.05, 1982) 13.08.110. Preparation and delivery. The Series 1982 bonds shall be prepared under the direction of the director of finance, and shall be executed on behalf of the city by the signature of the mayor, countersigned by the director of finance, and attested by the clerk of commission; provided, that the signature of two of such officers may be a printed facsimile thereof. The interest coupons appurtenant to the Series 1982 bonds shall be executed and authenticated by the printed facsimile signatures of such officers, and on the reverse side of each bond shall be printed a copy of the legal opinion to be rendered by the bond counsel, authenticated by the certificate and facsimile signatures of such officers. The Series 1982 bonds shall be sealed with the corporate seal of the city, which may be printed thereon. After registering the Series 1982 bonds in the manner specified in section 7-7-4257, Montana Code Annotated, the director of finance shall cause them to be delivered to the original purchaser thereof, upon payment of the purchase price as specified in the contract of sale, and the original purchaser shall not be obligated to see to the application of the purchase price. (Code 1982, § 13.08.110; Ord. No. 1115 § 3.06, 1982) Article IV. Water System Fund 13.08.120. Bond proceeds and revenues pledged and appropriated. The water system fund is hereby created and shall be maintained as a separate and special bookkeeping account on the official books of the city until all bonds issued hereunder and interest and redemption premiums due thereon have been fully paid, or the city's obligations with reference to such bonds has been discharged as provided in this chapter. All proceeds of bonds issued hereunder and all other funds from the system hereafter received or appropriated for purposes of the system are appropriated to this fund. All revenues derived from the system are irrevocably pledged and appropriated and shall be credited to the fund as received. All revenues of the system on hand in the city's existing water system fund as of December 1, 1982, exclusive of revenues appropriated and pledged to the payment and defeasance of the city's outstanding water revenue bonds, shall be pledged, appropriated and credited to the fund. The fund shall be subdivided into separate accounts as designated and described in sections 13.08.130 and 13.08.170, to segregate income and expenses received, paid and accrued for the respective purposes described in those sections. The revenues received in this fund shall be apportioned monthly, commencing December 1, 1982. (Code 1982, § 13.08.120; Ord. No. 1115 § 3.07, 1982) 13.08.130. Construction account. The construction account shall be used only to pay as incurred and allowed costs which under generally accepted accounting principles are capital costs of the project, and of such future improvements as may be authorized in accordance with law, including but not limited to payments due for work and materials performed and delivered under construction contracts, architectural, engineering, inspection, supervision, fiscal and legal expenses, the cost of lands and easements, interest accruing on bonds issued hereunder during the period of construction of the project and the improvements financed thereby and for six months thereafter, if and to the extent that the bond account is not sufficient for payment of such interest, reimbursement of any advances made from other city funds, and all other expenses incurred in connection with the construction and financing of the project or any such improvement. To the construction account shall be credited as received all proceeds of bonds issued hereunder (except proceeds of additional bonds appropriated to refund outstanding bonds or appropriated to another account in the fund), amounts appropriate by the city for the project, and all income received from the investment of the construction account. PROOFS Page 884 of 977 (Code 1982, § 13.08.130; Ord. No. 1115 § 4.02, 1982) 13.08.140. Operating account. On each monthly apportionment there shall first be set aside and credited to the operating account, as a first charge on the revenues, such amounts as may be required over and above the balance then held in the account to pay the reasonable and necessary operating expenses of the system which are then due and payable, or are to be paid prior to the next monthly apportionment. The term "operating expenses" means the current expenses, paid or accrued, of operation, maintenance and current repair of the system, as calculated in accordance with generally accepted accounting principles, and shall include, without limitation, administrative expenses of the city relating solely to the system, premiums for insurance on the properties thereof, labor and the cost of materials and supplies used for current operation and for maintenance, and charges for the accumulation of appropriate reserves for current expenses which are not recurrent monthly but may reasonably be expected to be incurred. Such expenses shall not include any allowance for depreciation or renewals or replacements of capital assets of the system or interest expense and shall not include any portion of the salaries or wages paid to any officer or employee of the city, except such portion as shall represent reasonable compensation for the performance of duties necessary to the operation of the system. There shall also be credited to this account upon the delivery of the Series 1982 bonds and from available funds other than the proceeds therefrom a sum equal to the estimated average monthly operating expenses of the system to establish an operating reserve, which sum shall be maintained by additional transfers upon each monthly apportionment whenever necessary, or may be augmented by transfers of additional amounts from the surplus account described below if determined by the city commission to be necessary to meet contingencies arising in the operation and maintenance of the system. Moneys in the operating account shall be used solely for the payment of current operating expenses of the system, as herein defined. (Code 1982, § 13.08.140; Ord. No. 1115 § 4.03, 1982) 13.08.150. Bond account. Upon each monthly apportionment there shall be set aside and credited to the revenue bond account out of the net revenues an amount equal to not less than the sum of one-sixth of the interest due within the next six months plus one-twelfth of the principal to become due within the next 12 months with respect to all outstanding bonds. Moneys from time to time held in the bond account shall be disbursed only to meet payments of principal and interest on bonds as such payments become due; provided, that on any date when all outstanding bonds are due or prepayable by their terms, if the amount then on hand in the bond account is sufficient with other moneys available for the purpose to pay all such bonds and the interest accrued thereon in full, it may be used for that purpose. If any payment of principal or interest becomes due when moneys in the bond account are temporarily insufficient therefor, such payment shall be advanced out of any net revenues theretofore segregated and then on hand in the depreciation account or the surplus account or the reserve account in said order. (Code 1982, § 13.08.150; Ord. No. 1115 § 4.04, 1982) 13.08.160. Reserve account. Upon receipt and from the proceeds of the Series 1982 bonds the city shall credit to the reserve account the sum of two hundred thousand dollars. Thereafter, upon each monthly apportionment, from the net revenues remaining after the credit therefrom to the bond account, the city shall credit the revenue account an amount equal to one-thirty-sixth of the difference between the maximum reserve requirement and three hundred thousand dollars until the balance in the reserve account equals the maximum reserve requirement. Thereafter the city shall maintain the same by crediting on each monthly apportionment to the reserve account from the net revenues PROOFS Page 885 of 977 remaining after the credit to the bond account. Amounts on hand in the reserve account shall be transferred by the city to the bond account if on any interest payment date the amount then on hand in the bond account, after transfers from the depreciation account and surplus account, is not sufficient to pay the principal and interest then due, whether at maturity or upon redemption or by acceleration. If not used for that purpose, the city shall hold the reserve account in trust to be applied toward payment of the final payment or toward redemption or defeasance of outstanding bonds when bonds are by their terms redeemable or defeasable and all of the outstanding bonds are to be redeemed or defeased and paid in full. (Code 1982, § 13.08.160; Ord. No. 1115 § 4.05, 1982) 13.08.170. Depreciation account. There shall next be credited, upon each monthly apportionment, to the depreciation account such portion of the surplus net revenues as the commission shall determine for depreciation of the system and for replacement or renewal of worn out, obsolete or damaged properties and equipment thereof. Moneys in this account shall be used only for the purposes above stated or, if so directed by the commission, to redeem bonds which are prepayable according to their terms, to pay principal or interest when due thereon as required in section 13.08.150, or to pay the cost of improvements to the system; provided, that in the event of financing the construction and installation of additional improvements or additions to the water system other than from proceeds of bonds payable from the bonds account, surplus net revenues from time to time received may be segregated and paid into one or more separate and additional accounts prior to the payment required to be made into the depreciation account. (Code 1982, § 13.08.170; Ord. No. 1115 § 4.06, 1982) 13.08.180. Surplus account. __ Any amount of the surplus net revenues from time to time remaining after the above required applications thereof shall be credited to the surplus account, and the moneys from time to time in that account, when not required to restore a current deficiency in the bond account as provided in section 13.08.150, may be used for any of the following purposes and otherwise: __ To redeem and prepay bonds payable from the net revenues when and as such bonds become prepayable according to their terms; or __ To purchase bonds on the open market, whether or not the bonds may then be prepayable according to their terms; or __ To be held as a reserve for redemption and prepayment of bonds payable from the net revenues which are not then but will later be prepayable according to their terms; or __ To pay for repairs of or for the construction and installation of improvements to the system; or __ To restore the operating reserve or increase the same when determined to be necessary by the commission. __ No moneys shall at any time be transferred from the surplus account or any other account of the fund to any other fund of the city, nor shall such moneys at any time be loaned to other municipal funds or invested in warrants, special improvement bonds or other obligations payable from other funds, except as provided in section 13.08.190. (Code 1982, § 13.08.180; Ord. No. 1115 § 4.07, 1982) PROOFS Page 886 of 977 13.08.190. Deposit and investment of funds. The director of finance shall cause all moneys pertaining to the fund to be deposited as received with one or more depository banks duly qualified in accordance with the provisions of section 7-7- 201, Montana Code Annotated, in a deposit account or accounts. The balance in such accounts, except such portion thereof as shall be guaranteed by federal deposit insurance, shall at all times be secured to its full amount by bonds or securities of the types set forth in said Section 7-7-201. Any of such moneys not necessary for immediate use may be deposited with such depository banks in savings or time deposits. No moneys shall at any time be withdrawn from such deposit accounts except for the purposes of the fund as defined and authorized in this chapter; except that moneys from time to time on hand in the fund may at any time, in the discretion of the commission, be invested in government obligations, bank repurchase agreements with respect to such obligations or certificates of deposits of national banks having a combined capital and surplus of at least one million dollars maturing and bearing interest at the times and in the amounts estimated to be required to provide cash when needed for the purposes of the respective accounts; provided, that the reserve account, the depreciation account and the surplus account may be invested in government obligations maturing not later than five years from the date of the investment. Income received from the deposit or investment of moneys in said accounts shall be credited to the account from whose moneys the deposit was made or the investment was purchased, and handled and accounted for in the same manner as other moneys in that account. (Code 1982, § 13.08.190; Ord. No. 1115 § 4.08, 1982) Article V. Priorities and Additional Bonds 13.08.200. Priority of bond payments. Each and all of the bonds shall be equally and ratably secured by and payable out of the net revenues without preference or priority of any one bond over any other by reason of serial number or otherwise; provided, that if at any time the net revenues on hand in the fund are insufficient to pay principal and interest then due on all such bonds, any and all moneys then on hand shall be first used to pay the interest accrued on all outstanding bonds, and the balance shall be applied toward payment of the maturing principal of such bonds to be paid first, and pro rata in payment of bonds maturing on the same date. (Code 1982, § 13.08.200; Ord. No. 1115 § 5.01, 1982) 13.08.210. Additional refunding bonds. The city reserves the right and privilege of refunding any or all of the bonds herein authorized and referred to, but only subject to the following terms and conditions: __ Any matured bonds may be refunded if moneys available for the payment thereof at maturity, within the limitation prescribed in section 13.08.120, should at any time be insufficient to make such payment in full. __ Any bonds may be refunded prior to maturity, as and when they become prepayable according to their terms. __ Provision may be made for the payment and refunding of any unmatured bonds by the deposit with a duly qualified depository bank, as escrow agent, of cash sufficient, or of securities of the kinds authorized by law, the agreed payments of interest and principal with respect to which are sufficient, to pay the principal amount of such bonds with interest to maturity or to any prior date or dates on which they have been duly called for redemption, and any premium required for such redemption. __ Any refunding bonds issued for the above purposes may be made payable from the net revenues on a parity with all then outstanding bonds, provided that: PROOFS Page 887 of 977 __ The maturity of each refunding bond shall be subsequent to the last maturity of any then outstanding bonds which are not refunded or to be refunded out of moneys on deposit with such escrow agent; and __ No bondholder shall be required to accept a refunding bond in exchange for any bond owned by him. (Code 1982, § 13.08.210; Ord. No. 1115 § 5.02, 1982) 13.08.220. Additional bonds. __ The city reserves the right to issue additional bonds for the purpose of financing costs of improvements (including the project), including reserve requirements and financing costs with respect thereto, payable from the bond account of the fund, on a parity as to both principal and interest with the Series 1982 bonds and other additional bonds, if: __ The net revenues for the last complete fiscal year preceding the issuance of such additional bonds have equaled at least one hundred twenty-five percent of the maximum principal and interest requirements on outstanding bonds and the additional bonds; in any subsequent fiscal year during the term of the outstanding bonds; __ The balance in the reserve account is increased to the maximum reserve requirement with respect to the outstanding bonds and additional bonds from the proceeds of the additional bonds or from net revenues within thirty-six months from the issuance of the additional bonds; and __ An opinion of bond counsel is obtained to the effect that the issuance of the additional bonds will not cause interest on the outstanding bonds to become subject to federal income taxation. __ For the purpose of the foregoing computation, the net revenues for the fiscal year preceding the issuance of additional bonds shall be those shown by the financial reports caused to be prepared by the city pursuant to section 13.08.290, except that if the rates for services provided by the system have been changed since the beginning of such preceding fiscal year, then the rates in effect at the time of issuance of the additional bonds or finally authorized to go into effect within sixty days thereof shall be applied to the quantities of service actually rendered and made available during such preceding fiscal year to ascertain the revenues, from which there shall be deducted to determine the net revenues, the actual operating costs plus any additional annual operating costs of which an independent engineer estimates will be incurred because of the improvements of the system to be constructed from the proceeds of the additional bonds proposed to be issued. In no event shall any additional bonds be issued bond account if the city is then in default in any payment of principal or interest on any outstanding bonds or if there then exists any deficiency in the balances required by this chapter to be maintained in any of the accounts of the fund which will not be corrected upon the issuance of the additional bonds. (Code 1982, § 13.08.220; Ord. No. 1115 § 5.03, 1982) 13.08.230. Subordinate bonds. Nothing in this chapter shall preclude the city from issuing bonds or obligations which are expressly made a charge on only the surplus net revenues subordinate to the pledge of net revenues to the bond account. (Code 1982, § 13.08.230; Ord. No. 1115 § 5.04, 1982) PROOFS Page 888 of 977 Article VI. Covenants 13.08.240. General. The city covenants and agrees with the holders from time to time of all bonds that the recitals contained in Article I of this chapter are correct; and that until all bonds are fully discharged as provided in this chapter, it will continue to hold, maintain and operate the system as a public utility and convenience, free from all liens thereon or on the revenues other than the liens herein granted or provided for, and will maintain, expend and account for the fund and the several accounts therein as provided in Article IV of this chapter, and will not incur a further lien or charge on the revenues of the system except upon the conditions and in the manner prescribed in Article V of this chapter, and will perform and cause all other officers and employees of the city, to perform and enforce each and all of the additional covenants and agreements set forth in this article; and that it will complete the construction, furnishing and equipping of the project and all other improvements as expeditiously as practical. (Code 1982, § 13.08.240; Ord. No. 1115 § 6.01, 1982) 13.08.250. Competing service. The city will not establish or authorize the establishment of any other system for the public supply of service or services in competition with any or all of the services supplied by the system. (Code 1982, § 13.08.250; Ord. No. 1115 § 6.02, 1982) 13.08.260. Property insurance. The city will cause all buildings, properties, fixtures and equipment constituting a part of the system to be kept insured with a reputable insurance carrier or carriers, qualified under the laws of Montana, in such amounts as are ordinarily carried, and against loss or damage by fire, explosion, and such other hazards and risks as are ordinarily insured against, by public utilities owning and operating properties of a similar character and size; provided, that if at any time the city is unable to obtain insurance, it will obtain insurance in such amounts and against risks are reasonable obtainable. The proceeds of all such insurance are duly appropriated to the construction account and shall be available and used for the repair, replacement and reconstruction of damaged or destroyed property, and until paid out in making good such loss or damage, are pledged as security for the outstanding bonds. All insurance proceeds received in excess of the amount required for restoration of the loss or damage compensated thereby shall be and become part of the revenues appropriated to the fund. If for any reason insurance proceeds are insufficient for the repair, replacement and reconstruction of the insured property, the city shall supply the deficiency from revenues on hand in the depreciation account and surplus account. (Code 1982, § 13.08.260; Ord. No. 1115 § 6.03, 1982) 13.08.270. Liability insurance and surety bonds. The city will carry insurance against liability of the city and its employees for damage to persons and property resulting from the operation of the system in such amounts as the city determines from time to time to be necessary or advisable by reason of the character and extent of such operation. It will also cause all persons handling money and other assets of the fund to be adequately bonded for the faithful performance of their duties and to account for and pay over such money to the city. All amounts received under such insurance and bonds shall be applied to the payment of the loss or damage covered thereby. The premiums for all insurance and bonds required by this section and Section 13.08.260 constitute part of the operating expenses of the system, but no insurance liabilities of the city in excess of amounts received under such insurance and bonds shall constitute a lien or charge on revenues or any other assets herein or otherwise pledged to the fund. PROOFS Page 889 of 977 (Code 1982, § 13.08.270; Ord. No. 1115 § 6.04, 1982) 13.08.280. Disposition of property. The city will not mortgage, lease, sell or otherwise dispose of any real or personal properties of the system, unless: __ Prior to or simultaneous with such mortgage, lease, sale or other disposition, all of the bonds issued hereunder and then outstanding shall be discharged as provided in Article VII of this chapter; or __ 1. The properties to be mortgaged, leased, sold or otherwise disposed of are unserviceable, inadequate, obsolete or no longer required for use in connection with the system; __ The mortgage, lease, sale or other disposition will not prevent the city from complying with the provisions of this resolution; and __ All proceeds of the mortgage, lease, sale or other disposition of such properties are deposited into the fund. (Code 1982, § 13.08.280; Ord. No. 1115 § 6.05, 1982) 13.08.290. Books and records. The city will cause proper and adequate books of record and account to be kept showing complete and correct entries of all receipts, disbursements and other transactions relating to the system, the monthly gross revenues derived from its operation, and the segregation and application of the gross revenues in accordance with this chapter, in such reasonable detail as may be determined by the city in accordance with generally accepted accounting practices and principles. It will cause such books to be maintained on the basis of the same fiscal year as that utilized by the city. The city shall have prepared and supplied to the original purchasers and paying agents, within one hundred twenty days of the close of each fiscal year, an audit report prepared by an independent accountant in accordance with applicable generally accepted accounting principles with respect to the financial statements and records of the system which report shall, in addition to other information deemed appropriate by the independent accountant, contain the following information: __ A statement in detail of the income and expenditures of the system for the fiscal year, identifying capital expenditures and separating them from operating expenditures; __ A balance sheet as of the end of the fiscal year; __ The number of premises connected to the system at the end of the fiscal year; __ The amount on hand in each account of the fund at the end of the fiscal year; __ A list of the insurance policies and fidelity bonds in force at the end of the fiscal year, setting out as to each the amount thereof, the risks covered thereby, the name of the insurer or surety and the expiration date of the policy or bond; and __ A determination that the report shows full compliance by the city with the provisions of this chapter during the fiscal year covered thereby, including proper segregation of the capital expenditures from operating expenses, maintenance of the required balance in the bond account, and receipt of net revenue during each fiscal year at least equal to one hundred twenty-five percent of the maximum principal and interest requirements in or, if the report should reveal that the revenues and net revenue have been insufficient for compliance with this chapter, or that the methods used in accounting for such revenues or net revenues were contrary to any PROOFS Page 890 of 977 provision of this chapter, the report shall include a full explanation thereof, together with recommendations for such changes in rates accounting practices or in the operation of the system as may be required. (Code 1982, § 13.08.290; Ord. No. 1115 § 6.06, 1982) 13.08.300. Cost of insurance and accounting. The insurance and fidelity bond premiums and the cost of the bookkeeping and audits herein provided for and of the billings and collection of the rates, shall be payable from the operating account. (Code 1982, § 13.08.300; Ord. No. 1115 § 6.07, 1982) 13.08.310. Handling of funds. The employees of the city, under the direction and control of the manager, shall keep books of account, issue statements and collect bills for the rates and for other money currently receivable on account of the system and shall, to the extent required by section 13.08.330 provide for the discontinuance of service in case of nonpayment for services or noncompliance with regulations. All money collected with respect to the system shall be deposited daily with the director of finance. The director of finance shall be bonded at all times with a surety company authorized to do business in Montana, in the amount of at least five thousand dollars, to assure the faithful carrying out of such duties. Any failure on the part of the director of finance to comply and to enforce compliance on the part of all officers and employees concerned with the provisions of this chapter shall constitute malfeasance for which the director of finance and the surety on his bond shall be personally liable. (Code 1982, § 13.08.310; Ord. No. 1115 § 6.08, 1982) 13.08.320. Rules and regulations. The rules and regulations for operation of the system and the use of water service from the system shall be as provided in the existing city resolutions, and any city resolutions subsequently adopted amendatory thereof or supplemental thereto, all, however, consistent with the terms and provisions of this chapter and prudent practices and procedures for the operation of a public water utility of the size and character of the system. (Code 1982, § 13.08.320; Ord. No. 1115 § 6.09, 1982) 13.08.330. Billing. The charges for water services will be billed at least monthly, and if the bill is not paid within 90 days of the date of billing, or if the customer fails to comply with all rules and regulations established for the system within 90 days after notice of violation thereof (which notice shall be given promptly upon discovery of any such violation), the service to the premises involved shall be discontinued and shall not be resumed until payment of all past-due bills for water service and compliance with all such rules and regulations. The city shall take appropriate legal action to collect the unpaid charges, including, to the extent now or hereafter authorized by law, making the charge a lien against the real property served by the water connection for which the charge remains unpaid and causing charges with respect to such properties to be collected in the same manner as taxes levied against property within the city. (Code 1982, § 13.08.330; Ord. No. 1115 § 6.10, 1982) 13.08.340. Rate covenant. __ While any bonds payable from the revenue bond account are outstanding and unpaid, the rates for all services and facilities furnished and made available by the system to the city and its inhabitants, and to all customers within or without the boundaries of the city, shall be PROOFS Page 891 of 977 reasonable and just, taking into consideration the cost and value of the system and the cost of maintaining and operating them, and the amounts necessary for the payment of all bonds and the accruing interest thereon, and the proper and necessary allowances for the depreciation of the water system, and no free service shall be provided to any person or corporation. It is covenanted and agreed that the rates, charges and rentals to be charged to all recipients of water services shall be maintained and shall be revised, subject to any required approval and regulation by the Public Service Commission of the state, whenever and so often as may be necessary, according to schedules such that the revenues therefrom will be at least sufficient to pay the current operating expenses, to maintain the operating reserve established, and to produce net revenues during each fiscal year commencing with the fiscal year ending June 30, 1983, not less than one hundred twenty-five percent of the sum of the maximum principal and interest requirements on outstanding bonds during any subsequent fiscal year. __ If at the close of any fiscal year the net revenues have been less than required hereby, the city will prepare a schedule of altered rates which are just and equitable and sufficient to produce net revenues in such amount, and will do all things necessary to the end that such schedule will be placed in operation at the earliest possible date. __ The establishment of a ratio of net revenues at least equal to one hundred twenty- five percent of the sum of the maximum principal and interest requirements on outstanding bonds has been deemed necessary in order to sell the bonds upon terms most advantageous to the city. The excess of the net revenues may be used as authorized in Article IV of this chapter. The bonds may be prepaid according to their terms on and after December 1, 1992, and in the estimation of the commission any excess, prior to that date, of net revenues will be needed to pay or to provide reserves for payment of replacements, renewals and improvement costs, in order to provide adequate service for the present population and the increase thereof reasonably to be expected; and after that date, any excess not required for such purposes in the judgment of the commission may be used to prepay bonds and thereby reduce the interest cost thereon to the city and to the persons served by the system. (Code 1982, § 13.08.340; Ord. No. 1115 § 6.11, 1982) 13.08.350. Independent engineer. If the commission defaults in its obligations hereunder, or if additional bonds for improvements are to be issued, the commission will retain an independent engineer to advise it. In the event the city defaults in the payment of principal or interest on any bonds or fails for two consecutive years to meet the requirements of section 13.08.340, the independent engineer shall prepare a report based upon a survey of the system and the operation and maintenance thereof. Such report shall, in addition to such other information and recommendations as the independent engineer may determine to include or the commission may request, include the independent engineer's comments regarding the manner in which the commission has carried out the requirements of this chapter, and regarding any change or improvement which should in his opinion be made in the operation of the system. Copies of such reports shall be made available upon request to bondholders. (Code 1982, § 13.08.350; Ord. No. 1115 § 6.12, 1982) 13.08.360. Remedies. The holders of not less than twenty-five percent in principal amount of the outstanding bonds issued and secured under the provisions of this chapter shall have the right, either at law or in equity, by suit, action or other proceedings, to protect and enforce the rights of all holders of such bonds and to compel the performance of any and all of the covenants required herein to be performed by the city, and its officers and employees, including but not limited to the fixing and maintaining of rates and the collection and proper segregation of revenues and the application and PROOFS Page 892 of 977 use thereof. The holders of a majority in principal amount of such outstanding bonds shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the bondholders or the exercise of any power conferred on them, and the right to waive a default in the performance of any such covenant, and its consequences, except a default in the payment of the principal of or interest on any bond when due. However, nothing herein shall impair the absolute and unconditional right of the holder of each such bond to receive payment of the principal of and interest on such bond as such principal and interest respectively become due, and to institute suit for any such payment. Any court having jurisdiction of the action may appoint a receiver to administer the system on behalf of the city with power to charge and collect rates sufficient to provide for the payment of any bonds or other obligations outstanding against the system, and to apply the revenues in conformity with this chapter and the laws of the state. (Code 1982, § 13.08.360; Ord. No. 1115 § 6.13, 1982) 13.08.370. Mbia insurance. The city will keep, perform and observe each of its obligations under and with respect to the MBIA insurance. (Code 1982, § 13.08.370; Ord. No. 1115 § 6.14, 1982) Article VII. Amendments 13.08.380. Amendments without bondholder consent. The city reserves the right to amend the ordinance codified in this chapter from time to time and at any time, for the purpose of curing any ambiguity or of curing, correcting or supplementing any defective provision contained herein, or of making such provisions with regard to matters or questions arising hereunder as the commission may deem necessary or desirable and not inconsistent with this chapter, and which shall not adversely affect the interest of the holders of bonds issued hereunder, or for the purpose of adding to the covenants and agreements herein contained, or to the revenues herein pledged, other covenants and agreements thereafter to be observed and additional revenues thereafter appropriated to the fund, for the purpose of surrendering any right or power herein reserved to or conferred upon the city or for the purpose of authorizing the issuance of additional bonds in the manner and subject to the terms and conditions prescribed in Article V of this chapter. Any such amendment may be adopted by supplemental ordinance, without the consent of the holders of any of the bonds issued hereunder. (Code 1982, § 13.08.380; Ord. No. 1115 § 7.01, 1982) 13.08.390. Amendments with bondholder consent. With the consent of holders of bonds issued hereunder as provided in section 13.08.400, the city may from time to time and at any time amend the ordinance codified in this chapter by adding any provisions hereto or changing in any manner or eliminating any of the provisions hereof, or of any supplemental ordinance, except that no amendment shall be adopted at any time without the consent of the holders of all bonds issued hereunder which are then outstanding, if it would extend the maturities of any such bonds, would reduce the rate or extend the time of payment of interest thereon, would reduce the amount or extend the time of payment of the principal or redemption premium thereof, would give to any bond or bonds any privileges over any other bond or bonds, would reduce the sources of revenues appropriated to the fund, would authorize the creation of a pledge of said revenues prior to or on a parity with the bonds (except as is authorized by Article V hereof), or would reduce the percentage in principal amount of such bonds required to authorize or consent to any such amendment. (Code 1982, § 13.08.390; Ord. No. 1115 § 7.02, 1982) PROOFS Page 893 of 977 13.08.400. Notice and consent. Any amendment adopted pursuant to section 13.08.390 shall be made by ordinance, notice of which shall be published in a financial newspaper of national circulation published in New York, New York, and shall become effective only upon the filing of written consents with the clerk, signed by the holders of not less than two-thirds in principal amount of the bonds issued hereunder which are then outstanding or, in the case of an amendment not affecting all outstanding bonds, by the holders of not less than two-thirds in principal amount of the bonds adversely affected by such amendment. Any written consent to an amendment may be embodied in and evidenced by one or any number of concurrent written instruments of substantially similar tenor signed by bondholders in person or by agent duly appointed in writing, and shall become effective when delivered to the clerk. Any consent by the holder of the same bond with respect to any amendment adopted by the city to such consent, provided that any bondholder may revoke his consent with reference to any bond by written notice received by the clerk before the amendment has become effective. In the event that unrevoked consents of the holders of the required amount of bonds have not been received by the clerk within one year after the publication of any amendment, the amendment and all consents theretofore received shall be of no further force and effect. (Code 1982, § 13.08.400; Ord. No. 1115 § 7.03, 1982) 13.08.410. Proof. Proof of the execution of any consent, or of a writing appointing any agent to execute the same, or of the ownership by any person of bonds, shall be sufficient for any purpose of this chapter and shall be conclusive in favor of the city if made in the manner provided in this section. The fact and date of the execution by any person of any such consent or appointment may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the person signing it acknowledged to him the execution thereof. The amount of bonds held by any person by or for whom a consent is given, and the distinguishing numbers of such bonds, and the date of his holding the same, may be provided by a certificate executed by any trust company, bank or other depository, wherever situated, if such certificate is deemed satisfactory by the clerk, showing that at the date therein mentioned such person had on deposit with such depository, or exhibited to it, the bonds therein described; or such facts may be proved by the certificate or affidavit of the person executing such consent, if such certificate or affidavit is deemed satisfactory by the clerk. The city may conclusively assume that such ownership continues until written notice to the contrary is received by the clerk. The fact and date of execution of any such consent and the amount and distinguishing numbers of bonds held by the person executing the same may also be proved in any other manner which the city council may deem sufficient; but the council may nevertheless, in its discretion, require further proof in cases where it deems further proof desirable. (Code 1982, § 13.08.410; Ord. No. 1115 § 7.04, 1982) Article VIII. Defeasance 13.08.420. General. When the liability of the city on any bond issued under and secured by this chapter and all coupons appurtenant thereto has been discharged as provided in this section, all pledges, covenants and other rights granted by this resolution to the holder of such bond shall cease. (Code 1982, § 13.08.420; Ord. No. 1115 § 8.01, 1982) PROOFS Page 894 of 977 13.08.430. Payment. The city may discharge its liability with reference to any bonds and coupons which are due on any date by depositing with the paying agent or agents for such bonds on or before that date a sum sufficient for the payment thereof in full; or if any bond or coupon shall not be paid when due, the city may nevertheless discharge its liability with reference thereto by depositing with the paying agent or agents a sum sufficient for the payment thereof in full with interest accrued to the date of such deposit. (Code 1982, § 13.08.430; Ord. No. 1115 § 8.02, 1982) 13.08.440. Prepayable bonds. The city may also discharge its liability with reference to any prepayable bonds which are called for redemption on any date in accordance with their terms, by depositing with the paying agent or agents on or before that date an amount equal to the principal, interest and redemption premium, if any, which are then due thereon; provided, that notice of such redemption has been duly given. (Code 1982, § 13.08.440; Ord. No. 1115 § 8.03, 1982) 13.08.450. Escrow. The city may also at any time discharge its liability in its entirety with reference to any bond or bonds, subject to the provisions of law now or hereafter authorizing and regulating such action, by calling all prepayable bonds of such issue for redemption on the next date when they may be prepaid in accordance with their terms, by giving the notice required for such redemption, and by depositing irrevocably in escrow, with a bank qualified by law as an escrow agent for this purpose, cash or government obligations which are authorized by law to be so deposited, bearing interest payable at such times and at such rates and maturing on such dates as shall be required to provide funds sufficient to pay all principal, interest and redemption premiums to become due on all bonds of the issue on or before the redemption date. (Code 1982, § 13.08.450; Ord. No. 1115 § 8.04, 1982) Article IX. Arbitrage and Certifications of Proceedings 13.08.460. Arbitrage certificate. The mayor, clerk of commission and director of finance, being the officers of the city charged with the responsibility for issuing the bonds pursuant to this resolution, are authorized and directed to execute and deliver to the purchaser a certification in order to satisfy the provisions of sections 1.103-13, 1.103-14 and 1.103-15 of the Treasury Regulations. Such certification shall state that on the basis of the facts, estimates and circumstances in existence on the date of issue and delivery of the bonds as therein set forth, it is not expected that the proceeds of the bonds will be used in such a manner that would cause the bonds to be arbitrage bonds, and the certification shall further state that to the best of the knowledge and belief of the certifying officers there are no other facts, estimates or circumstances that would materially change such expectation. The city further covenants and agrees to take all action necessary to assure that the bonds shall not be deemed to be "arbitrage bonds" under Section 103(c) of the Internal Revenue Code of 1954, as amended. (Code 1982, § 13.08.460; Ord. No. 1115 § 9.01, 1982) 13.08.470. Transcript. The officers of the city and of Gallatin County are authorized and directed to prepare and furnish to the purchasers of the bonds and to the attorneys approving the legality of the issuance thereof, certified copies of all proceedings and records of the city relating to the bonds and to the PROOFS Page 895 of 977 organization and financial condition and affairs of the city, and such affidavits and other information as may be required to show the facts relating to the legality and marketability of the bonds as the same appear from the books and records under their custody and control as otherwise known to them; and all such certified copies, certificates, and affidavits, including any heretofore furnished, shall constitute representations of the city as to the truth of the facts purported to be shown thereby. (Code 1982, § 13.08.470; Ord. No. 1115 § 9.02, 1982) Secs. 40.02.170--40.02.290. Reserved. DIVISION 3. WATER SERVICE UTILITY OPERATIONS355 Subdivision I. In General Article I. General Provisions Sec. 40.02.300. Provisions adopted; regulations a part of service contracts. A. The rules and regulations set out in this chapter division are made for the government of the waterwork system of the city. B. These rules and regulations of the city pertaining to its waterworks system, and approved by the Public Service Commission of the state, are made a part of the contract with every individual, firm or corporation who takes water, and every such individual, firm or corporation agrees, in making application for water, to be bound thereby. The following rules and regulations set out in this chapter division are adopted by the city. (Code 1982, § 13.12.010; Ord. No. 1077, § 1, 1981) Sec. 40.02.310. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: __ 356"Commission" means the Department of Public Service Regulation of the state of Montana Public Service Commission. 1. "Customer" means any individual, partnership, association, firm, public or private corporation, or governmental agency, or any other entity receiving water service from the utility. 2. "Meter" or "meters" mean the complete installation, including auxiliary devices and equipment, if any, used to measure the water supplied to a customer. 3. "Point of delivery" means the point at which the utility's facilities connect physically to customer's facilities, the location of which shall be designated by or satisfactory to utility, unless otherwise defined in the service agreement. 4. "Residential dwelling unit" means any room or combination of rooms, including trailers and mobile homes, with facilities for cooking, designed for occupancy by one family. __ "Room." On flat-rate service, where the charge is based on the number of rooms, any 355 Note changes in this division requested by city staff. 356 This could be confused with “city commission.” I suggest using the whole title for both. Delete. This commission no longer regulates this system. Delete throughout. PROOFS Page 896 of 977 finished room with an area of eighty square feet will be considered a "room." Bathrooms shall have no minimum area requirements.357 5. "Service agreement" means the agreement or contract between utility and customer pursuant to which service is supplied and taken. 6. "Utility" means the City of Bozeman, Montana, and its water service division, engaged in the business of providing water and supplying water service to its customers on its system in the State of Montana. 7. "Water service" or "service" means the supplying of or availability at the point of delivery of water, and also the water delivered or used. (Code 1982, § 13.12.020; Ord. No. 1077, § 1, 1981) Sec. 40.02.320. Purpose of provisions. These service regulations are intended to define good practice which can normally be expected, but are not intended to exclude other accepted standards and practices not covered herein. They are intended to ensure adequate service to the public and protect the utility from unreasonable demands. (Code 1982, § 13.12.030; Ord. No. 1077, § 1, 1981) Sec. 40.02.330. Scope of provisions; revision conditions. These service regulations govern the supplying by the utility, and taking by its customers, of water service from the utility's water system. These regulations are subject to revision, upon approval by the commission, and supersede all regulations, by whatever term designated, which may heretofore govern the supplying and taking of water service. (Code 1982, § 13.12.040; Ord. No. 1077, § 1, 1981) Sec. 40.02.340. Information available to public. There shall be made available to the public at the office of the city clerk commission and at the principal offices of the utility copies of these service regulations and the rate schedules, forms of agreement for water service, and service standards of the utility. (Code 1982, § 13.12.050; Ord. No. 1077, § 1, 1981) Sec. 40.02.350. Waiver of regulations; conditions. In any case where compliance with any of these rules introduces unusual difficulty, such rule may be temporarily waived by the director of public service commission upon application of the utility or the customer. If in any case compliance with a rule would cost more than the results of such compliance are worth, such rule may be permanently set aside by the director of public servicecommission. (Code 1982, § 13.12.060; Ord. No. 1077, § 1, 1981) 357 Deleted at request of city staff. PROOFS Page 897 of 977 Article II. Service Provided Secs. 40.02.360--40.02.490. Reserved. Subdivision II. Service Provided Sec. 40.02.500. Service provided by utility; basis. The utility agrees to furnish water and water services for certain specified purposes as contained in the service agreement, for a certain specified sum, based either on a metered or nonmetered rate, as hereinafter provided. (Code 1982, § 13.12.070; Ord. No. 1077, § 1, 1981) Sec. 40.02.510. Water service for customer's use only; violations. If a customer furnishes other individuals or entities with water services without permission from the utility, or utilizes utilities the water or water service for other purposes than for which it was intended, that customer is in violation of the customer's service agreement. Customers in violation of their service agreements may have their water service discontinued until such time as the charge for such additional service has been paid, together with the actual additional expense incurred by the utility in discontinuing or reconnecting water service. (Code 1982, § 13.12.080; Ord. No. 1077, § 1, 1981) Sec. 40.02.520. Customer to furnish easement, right-of-way and permits. A customer, or prospective customer, must furnish all easements, cleared rights-of-way, and permits necessary to enable the utility to supply the service required. (Code 1982, § 13.12.090; Ord. No. 1077, § 1, 1981) Sec. 40.02.530. Access to premises. The utility's employees or representatives, or other authorized persons, shall have access at reasonable hours to enter any premises where water is used, for the purpose of making inspection, or investigation. (Code 1982, § 13.12.100; Ord. No. 1077, § 1, 1981) Sec. 40.02.540. Unauthorized tapping into system prohibited. With the exception of special installation approved by the utility, no person or other entity, other than agents, representatives or employees of the utility, shall tap into the utility's transmission or distribution system or service lines attached thereto. (Code 1982, § 13.12.110; Ord. No. 1077, § 1, 1981) Sec. 40.02.550. Furnishing water to others prohibited; exception. In no instance may the customer extend such customer's water facilities across or under a street, alley, lane, court or avenue, or other public or private space, existing under different ownership, in order to obtain a rate advantage by taking water service for two or more premises through one source or meter. (Code 1982, § 13.12.120; Ord. No. 1077, § 1, 1981) Sec. 40.02.560. Procedure for activating water lines. No person or entity shall activate a line connected to the utility's system, or allow any other person to do so, except upon specific, written permission of the utility. Activation of any line, for testing purposes, or otherwise, shall obligate the individual performing the test to turn off the water service at the curb stop. PROOFS Page 898 of 977 (Code 1982, § 13.12.130; Ord. No. 1077, § 1, 1981) Article 3. Application for Service 13.12.140. Application--service agreement forms. A utility may require a customer or prospective customer to sign one of the utility's standard application or service agreement forms. The application or agreement shall be binding only after acceptance by a duly authorized representative of the utility. In case of acceptance of service by a customer prior to the signing of such agreement, customer shall pay for the service so furnished in accordance with the applicable rate schedule or schedules in force and shall abide by these service regulations. (Code 1982, § 13.12.140; Ord. No. 1077, § 1, 1981) 13.12.150. Establishment of credit--required when. The utility may at any time require from any customer, or prospective customer, that it establish credit as hereinafter set forth; or that the customer or prospective customer deposit a certain amount of funds to guarantee payment of utility bills. Regulations regarding the establishment of credit and the filing of deposit to guarantee payment are as hereinafter set forth. (Code 1982, § 13.12.150; Ord. No. 1077, § 1, 1981) 13.12.160. Establishment of credit--residential service. An applicant for residential utility service may establish credit by demonstrating to the utility any one of the following factors: __ Prior service with utility in question within the previous 12 months during which for at least six consecutive months service was rendered and was not disconnected for failure to pay the utility bill and no more than one delinquency notice was served upon applicant; __ Prior service with a utility of the same type as that of which service is sought with a satisfactory payment record as demonstrated in subsection A above, provided that the reference may be quickly and easily checked by the utility and the necessary information is provided; __ Full-time consecutive employment during the entire 12 months next previous to the application for service, with no more than two employers, and the applicant is currently employed or has a regular source of income; __ Ownership of significant legal interest in the premises to be served; __ Furnishing of satisfactory guarantor to secure payment of bills for services requested in a specified amount, not to exceed an estimated one-year bill, such estimation to be made at the time that service is established. (Code 1982, § 13.12.160; Ord. No. 1077, § 1, 1981) 13.12.170. Establishment of credit--nonresidential service. An applicant for nonresidential service may be required to demonstrate that it is a satisfactory credit risk by reasonable means appropriate under the circumstances. (Code 1982, § 13.12.170; Ord. No. 1077, § 1, 1981) 13.12.180. Deposit--required when. A deposit may be required under the following circumstances: __ Where the applicant has failed to establish a satisfactory credit history as outlined PROOFS Page 899 of 977 in sections 13.12.160 and 13.12.170; __ In any event, a deposit may be required when: __ Within the 12 months prior to the application, applicant's service of a similar type has been disconnected for failure to pay amounts owing, when due; or __ Where there is an unpaid, overdue balance owing for similar service provided the customer; or __ Where two or more delinquency notices have been served upon the applicant by any other utility company during the 12 months previous to the application for service; __ Initiation or continuation of service to a residence where prior customer still resides and where any balance for such service to that prior customer is past due or owing; __ Where the customer is a tenant or lessee of rented property where the landlord or lessor has not assumed, in writing, obligation to pay the utility bill on behalf of the tenant or lessee or a satisfactory guarantor has not been furnished as provided in subsection C of section 13.12.160; __ Where the customer has, in an unauthorized manner, interferred with the service of the utility situated or delivered on or about the customer's premises within the last five years, if the finding of unauthorized interference or use is made and determined after notice and opportunity for hearing is provided to the customer and is not in dispute. (Code 1982, § 13.12.180; Ord. No. 1077, § 1, 1981) 13.12.190. Requiring deposit for certain reasons prohibited. A utility shall not require a cash deposit or other guarantee as a condition of new or continued residential utility service based upon commercial credit standards (except as provided in these rules), income, home ownership, residential location, race, color, creed, sex, age, national origin, or any other criteria not authorized by these rules. This rule does not prohibit a utility from ensuring that agreements with customers who may be incompetent, such as minors, are made in such a manner and with such persons, as to be legally binding. (Code 1982, § 13.12.190; Ord. No. 1077, § 1, 1981) 13.12.200. Deposit--uniform application of standards. A utility shall apply deposit standards uniformly as condition of utility service to all residential customers. (Code 1982, § 13.12.200; Ord. No. 1077, § 1, 1981) 13.12.210. Deposit--amount. In instances where a deposit may be required by the utility, the deposit shall not exceed one- sixth of estimated annual billings. (Code 1982, § 13.12.210; Ord. No. 1077, § 1, 1981) 13.12.220. Deposit--interest to be paid to customer. Simple interest at the rate of six percent per year on the amount of the deposit shall be paid to the customer upon refund of such deposit, or shall be paid annually to the customer upon demand, provided the deposit has remained intact with the utility for a period of at least six months in order to earn such interest. Interest shall cease on the date of termination of service or refund of deposit. PROOFS Page 900 of 977 (Code 1982, § 13.12.220; Ord. No. 1077, § 1, 1981) 13.12.230. Deposit--recordkeeping requirements. __ A utility shall maintain a record of all deposits received from customers, showing the name of each depositor, the date and amount of the deposit made, the location of the premises occupied by the depositor at the time of making the deposit, and each successive location while the deposit is retained. __ Each customer posting a cash deposit shall receive in writing at the time of tender of the deposit a receipt as evidence thereof, which contains the following minimum information: __ Name of customer; __ Address of customer; __ Place of payment; __ Date of payment; __ Amount of payment; __ Identification of the employee receiving the payment; and __ Statement of the terms and conditions governing the receipt, retention and return of deposit funds. __ A utility shall provide means whereby a customer entitled to a return of his deposit is not deprived of deposit funds even though he may be unable to produce the original receipt for the deposit. In such event, utility records shall be controlling. (Code 1982, § 13.12.230; Ord. No. 1077, § 1, 1981) 13.12.240. Deposit--refund conditions. __ Utility may refund any customer's deposit, or a part thereof, by check or by credit to customer's account at any time, and any unpaid interest due on the refund shall be paid to date of refund on such portion of the deposit as has been held intact by utility for six months or more. __ Deposit plus accrued interest shall be refunded under the following circumstances and in the following form: __ Satisfactory Payment. Where the customer requests the refund, and has for 18 consecutive months paid for service when due in a prompt and satisfactory manner as evidenced by the following: __ The utility has not initiated disconnection proceedings against the customer; __ No more than two notices of delinquency have been made to the customer by the utility. __ Termination of Service. If the deposit is not returned as above provided, upon termination of service the utility shall return to the customer the amount then on deposit plus accrued interest less any amounts due the utility by the customer for service rendered. (Code 1982, § 13.12.240; Ord. No. 1077, § 1, 1981)) 13.12.250. Guarantee in lieu of deposit permitted when. In lieu of a cash deposit required by these rules, a utility shall accept written guarantee of a responsible party as surety for a customer service account; for the purpose of this rule, a "responsible party" means: __ Any individual or business entity which has maintained service with the utility in PROOFS Page 901 of 977 question for the previous twenty-four months, and who has not had service disconnected for failure to pay and has received no more than two delinquency notices; __ Any special fund identified in writing as a guarantee and approved by the utility. (Code 1982, § 13.12.250; Ord. No. 1077, § 1, 1981) 13.12.260. Guarantee terms and conditions. A guarantee accepted in accordance with these rules is subject to the following terms and conditions: __ It shall be in writing, and if necessary shall be renewed in a similar manner annually; __ It shall state the terms of guarantee, the maximum amount guaranteed (such maximum not to exceed an estimated one-year bill, such estimation to be made at the time the service is established), and that the utility shall not hold the guarantor liable for sums in excess thereof unless agreed to in a separate written instrument. (Code 1982, § 13.12.260; Ord. No. 1077, § 1, 1981) 13.12.270. Guarantor release conditions. __ The guarantor shall be released upon the satisfactory payment by the customer of all proper charges for utility service for a period of 12 successive months. For purposes of this section, payment is satisfactory if: __ The utility has not initiated disconnection proceedings against the customer; __ No more than two notices of delinquency have been made to the customer by the utility. __ The utility may withhold the release of the guarantor pending the resolution of a disputed discontinuance. (Code 1982, § 13.12.270; Ord. No. 1077, § 1, 1981) Article IV. Service Conditions Secs. 40.02.570--40.02.690. Reserved. Subdivision III. Service Conditions Sec. 40.02.700. General conditions for supplying service. Service will be supplied only under and pursuant to these service regulations, and any modification or additions thereto lawfully made, and under such applicable rates, schedules and contracts as may from time to time be lawfully established. (Code 1982, § 13.12.280; Ord. No. 1077, § 1, 1981) Sec. 40.02.710. Application; existing service; requirements. Application for the use of water from an existing service must be made at the city finance office on a printed form provided for that purpose. Service will be furnished to any customer who fully and truly sets forth all the purposes for which water may be required and who agrees to and conforms with all the rules and regulations governing the service; provided the purposes set forth comply with all the utility's rules and regulations as on record and approved by the commission, and, that the existing utility water system, and water supply, is adequate to meet the use for which the application is made. (Code 1982, § 13.12.290; Ord. No. 1077, § 1, 1981) PROOFS Page 902 of 977 Sec. 40.02.720. Service supplied to existing points of delivery only. Service will be supplied under the applicable rates, schedules and contracts only at points of delivery as are presently existing on the utility's system. (Code 1982, § 13.12.300; Ord. No. 1077, § 1, 1981) Sec. 40.02.730. Line extension costs borne by customer. Line extension costs will be borne by the customer requesting that service. (Code 1982, § 13.12.310; Ord. No. 1077, § 1, 1981) Sec. 40.02.740. Installation conditions; property owner's responsibilities; permit required. A. Except under special conditions approved by the utility, the property owner, at the property owner's expense, will be responsible for installing all water service lines, fire lines, back flow valves and all other necessary appurtenances or attachments from the curb box to the meter inside the served structure. All water services to any premises shall be installed by a plumber licensed and bonded in accordance with Montana state law and the Bozeman Municipal Code. Service lines must be so installed that the supply of water for each separate building, house or customer shall be controlled by a separate curb stop placed within or near the property line. The curb stop and box must be kept in a readily accessible condition by the owner of the premises. B. An application for installation of water service to any premises must be signed by the property owner or the property owner's designated agent and must be made on a regular form furnished by the utility for that purpose. Prior to approval of such application, the utility will require the property owner to obtain a plumbing permit, and may require the property owner to establish credit or to furnish a deposit as provided in sections 13.12.150 through 13.12.270. C. Upon completion of the application, receipt of the plumbing permit and payment of all charges related to the connection of water services, and full inspection by the utility, the utility will, it is in its discretion and at the property owner's expense, install the service, from the main to the curb box. (Code 1982, § 13.12.321; Ord. No. 1077, § 1, 1981; Ord. No. 1497, § 1, 1999) Sec. 40.02.750. Protective devices. When it is deemed by the water/sewer superintendent that such protective devices are necessary to protect another customer's facilities and/or the municipal water supply system, the water/sewer superintendent may require a property owner to install, as a condition of continued water service and at the property owner's expense, an approved expansion tank, pressure reducing valve, backflow prevention device, pressure relief valve, or any other similar type of device on property owner's water service line at a location designated by the city's water/sewer superintendent. Property owners will be responsible for keeping these devices in good repair and effective operating condition at all times. Failure to keep these devices in good working condition may be cause to discontinue water service to the property involved. (Code 1982, § 13.12.322; Ord. No. 1497, § 2, 1999) Sec. 40.02.760. Fire lines. Fire lines will be applied for and installed, at the property owner's expense, in compliance with the utility's standards of design and construction for fire lines. Except when specifically excepted, a fire line will not be interconnected with domestic service pipes downstream of the curb valve, and each fire line will have its own independent curb valve, which will be located at or near the water main in the street at a point designated by the utility. (Code 1982, § 13.12.323; Ord. No. 1497, § 3, 1999) PROOFS Page 903 of 977 Sec. 40.02.770. Service lines; inspection, connection and penalty for failure to comply. A. The owner of any house, building or other property used for human occupancy, employment, or recreation, which is situated within the corporate city limits and abuts on any street, alley or right-of-way in which there is located a public water main of the city which the city determines is of sufficient capacity within 100 feet of the property line will, at the city's request and at the owner's expense, connect to the city water service for domestic purposes. The utility will be responsible for the connection from the water main to the curb box. The connection of the service lines between the main and the curb box will not be made by any other person, business or entity other than the utility unless given express permission by the utility. B. Prior to backfill, the applicant will notify the utility when the service line is ready for inspection and connection to the curb box. The connection and testing will be made under the supervision of the city water/sewer department. The utility may elect not to connect the property owner to the utility's water service unless the inspection has been completed and the service line fully complies with all applicable federal, state, and city regulations. C. Should the owner of any property described above fail to connect to the city's water service or in any way fail to comply with the provisions of this chapter division, the water/sewer superintendent will provide the owner with notice of the requirement to do so. The notice will be sent to the owner by certified mail and give the owner 90 days to install the proper service lines. Should the owner fail to connect even after receiving proper notice, the utility may, at its discretion and at the owner's cost, lay the proper service lines from the main to the meter. The utility may charge the owner an additional five percent of the cost of installing the service for failure to connect within a timely manner. (Code 1982, § 13.12.324; Ord. No. 1497, § 4, 1999) Sec. 40.02.780. Maintenance--When utility responsible. Subject to section 40.02.790, the utility, at its own expense, will maintain the service lines or fire lines up to a distance of 60 feet, as measured from the curb box, or to and including the meter, whichever is less, to any property owner receiving service prior to July 1, 1999. (Code 1982, § 13.12.330; Ord. No. 1077, § 1, 1981; Ord. No. 1497, § 5, 1999) Sec. 40.02.790. Same--Property owner responsibility. A. Beginning July 1, 1999, water service lines and fire lines from the curb box to the premises are owned by the owner of the property served. As owners of the service lines, all new property owners will have the responsibility of keeping the service lines, backflow valves, and all other necessary appurtenances from the curb box to the meter in good condition. Should the lines not be properly maintained, the utility may, at its discretion and at the owner's expense, fix or correct any deficiencies that occur which may affect the utility's ability to provide service to its customers. The utility, at its own expense, will maintain the service lines, fire lines or combinations thereof from the utility's main line to the property owner's curb box. B. Any property owner currently receiving water from the utility seeking to utilize the water provided for purposes not stated in their original agreement with the utility, including but not limited to extending those lines, or those requiring any type of repair to the water lines within their boundaries will be required to complete a new application in which they agree to maintain the service line from the curb box to their property. (Code 1982, § 13.12.340; Ord. No. 1077, § 1, 1981; Ord. No. 1497, § 6, 1999) Sec. 40.02.800. Meter--Required for new service; installation cost deposit required. All new installations shall be metered. Prior to installation, the customer is required to deposit with the utility an amount equal to the installation charges, as determined by the utility. PROOFS Page 904 of 977 Following installation, the actual costs incurred thereby will be credited against the amount of the deposit. If the installation charges are less than the deposit, the difference between the actual costs incurred and the deposit shall be refunded to the customer. If the installation costs are greater than the deposit, the difference shall be billed to the customer. (Code 1982, § 13.12.350; Ord. No. 1077, § 1, 1981) Sec. 40.02.810. Same--Remote reading attachment required when; costs Location. All new metered water service or replacement of service or meter shall include the installation of a meter with remote reading attachment. The meter shall be located at some convenient and accessible point inside the premises and so located that it cannot freeze. The cost of the remote reading attachment shall be borne by the customer, who, except in the case of a new metered water service, upon request will be given 90 days to pay for the remote reading attachment. (Code 1982, § 13.12.360; Ord. No. 1077, § 1, 1981; Ord. No. 1269, 1988) Sec. 40.02.820. Same--Required for expanded service when. Any customer presently on a flat-rate schedule who installs additional fixtures or seeks to utilize the water provided for purposes not stated in their original agreement, such as expending or remodeling their residence, shall be required to convert to a metered water service. (Code 1982, § 13.12.370; Ord. No. 1077, § 1, 1981) Sec. 40.02.830. Same--Utility responsibility; maintenance. The utility shall install and maintain all meters to include routine maintenance and replacement of meters on an established schedule. When it is determined maintenance is required, the utility will notify the customer in writing and schedule the required service. No person, business or entity other than the utility will tamper with the meter for any reason. Should the customer feel maintenance is required or for any other reason feels the meter should be inspected, the customer must contact the city's water/sewer superintendent to schedule service. (Code 1982, § 13.12.375; Ord. No. 1497, § 7, 1999) Sec. 40.02.840. Irrigation or other outdoor use; restrictions; prohibited in emergencies358. The water superintendent of the utility is hereby authorized, directed and empowered, whenever in his opinion the necessities of the situation require such action, to restrict and/or wholly prohibit the use of the utility's water to supply for garden, lawn or other outdoor irrigation or use. Such restriction and/or prohibition shall become effective twenty-four hours after notice thereof shall be published in any newspaper of general circulation distributed in the city. In emergency situations, as determined by the water superintendent, which demand immediate action, the water superintendent of the utility may immediately restrict or wholly prohibit the use of water from the utility's system by notifying customers by newspaper publication within a newspaper of general circulation in the city and/or public by service radio announcements within the city. (Code 1982, § 13.12.380; Ord. No. 1077, § 1, 1981) 358 Were the irrigation regulations in this chapter intended to be superseded by Code ch. 13.21? Delete subsection A. PROOFS Page 905 of 977 13.12.390. Irrigation or other outdoor use--hours to be posted359. Utility may specify the hours and days during which sprinkling or irrigation will be permitted, and may publish notice thereof in newspapers at the start of the sprinkling or irrigation season, or whenever conditions require a change in present sprinkling or irrigation practices. The utility shall prominently post, within its local office, a notice advising the public of the hours and days within which sprinkling or other irrigation is permitted. (Code 1982, § 13.12.390; Ord. No. 1077, § 1, 1981) Sec. 40.02.850. Flat-rate service; billing procedures; penalties for delinquent payment. All flat-rate services shall be billed monthly in advance, on or about the first day of each month, based on rates and charges on file with the cityand approved by the commission. Payment is due upon receipt of the bill, and will be considered delinquent if not paid by the 15th day of the month in which it is received. If the bill is not paid within 30 days after it has become delinquent, the water service will be disconnected after a ten-day written notice. Service will not be reinstated until delinquent charges are paid, together with the cost incurred by the utility in disconnecting and subsequently reconnecting the line. (Code 1982, § 13.12.400; Ord. No. 1077, § 1, 1981) Sec. 40.02.860. Metered service; billing; penalties for delinquent payment. All metered services shall be billed for actual water consumed, based on rates and charges as established by resolution of the city commissionwhich the commission will set by resolution. Payment is due upon receipt of the bill, and will be considered delinquent if not paid by the 15th day of the month in which it is received. If the bill is not paid within 30 days after it has become delinquent, the utility, at its own discretion, may disconnect the water services following a ten-day written notice. Should the utility disconnect a customer's service for failure to pay a delinquent bill, service shall not be reinstated until delinquent charges are paid, together with the cost incurred by the utility in disconnecting or subsequently reconnecting the line. (Code 1982, § 13.12.410; Ord. No. 1077, § 1, 1981; Ord. No. 1497, § 8, 1999) Sec. 40.02.870. Billing method for multiple delivery points or separate meters for single customer. Where separate points of delivery exist for supplying service to a single customer, or separate meters are maintained and provided for measurement of service to a single customer, each point of delivery or metering shall be separately billed under the applicable rates. (Code 1982, § 13.12.420; Ord. No. 1077, § 1, 1981) Sec. 40.02.880. Termination of service by customer. Customer shall give utility at least 24 hours' notice, Saturdays, Sundays and holidays excluded, to terminate service, unless a longer notice of termination is provided for in the service agreement. Should the customer desire to discontinue the use of water temporarily, or should the premises become vacant, the utility must be notified in writing of the temporary discontinuance of use of the utility water supply. Upon being so notified, the utility will shut off the water at the curb box and allowance will be made on the bill (for customers on a flat-rate charge) for such time as the water is not in use. (Code 1982, § 13.12.430; Ord. No. 1077, § 1, 1981) 359 Deleted as superseded by existing chapter 13.21. PROOFS Page 906 of 977 Sec. 40.02.890. Maintenance; customer responsibility; wasting water prohibited. Waste of water is prohibited, and customers must keep their fixtures and interior pipes in good order at their own expense, and all waterways closed when not in use. Leaky fixtures must be repaired at once without waiting for notice from the city, and if not repaired within five days after written notice is given, water service may be discontinued until such time as the leak is repaired. (Code 1982, § 13.12.440; Ord. No. 1077, § 1, 1981) Sec. 40.02.900. Adjustment of accounts following repairs. Following completion of the repair of customer's lines, the utility may adjust the customer's account to the extent of actual water consumed retroactive for three billing periods, commencing upon completion of the repair. The customer will be responsible for notifying utility of the repair made. (Code 1982, § 13.12.450; Ord. No. 1077, § 1, 1981) Sec. 40.02.910. Continuity of service; liability limitations. A. The utility shall make reasonable effort to avoid interruption of service, and when such interruptions occur, shall reestablish service with reasonable diligence. B. The utility shall not be liable to customer or others for failure or interruption of water service due to acts of God, governmental regulations, court or commission orders, acts of the public enemy, strikes or labor difficulties, accidents, weather conditions, acts of third parties, droughts, or, without limitation by the foregoing, any other cause beyond the reasonable control of utility. (Code 1982, § 13.12.460; Ord. No. 1077, § 1, 1981) Sec. 40.02.920. Suspension of service for repairs and changes. A. When it is necessary for the utility to make repairs or to change its water collecting, storage, transmission or distribution system, meters or other property, utility may, without incurring any liability therefor, suspend service for such period as may be reasonably necessary, and in such manner as to minimize the inconvenience to customers. B. All persons having boilers on their premises, depending on connected pressure with the water mains, are cautioned against collapse of their boilers. As soon as the water is turned off, the hot-water faucet should be opened and left open until the water is again turned on. A check valve must always be placed between the boiler and the city's mains to prevent draining the boiler. A customer must never leave the premises with any faucets open or water turned off. (Code 1982, § 13.12.470; Ord. No. 1077, § 1, 1981) Sec. 40.02.930. Interruption of service; liability limitations. Interruptions of service resulting from the repair of leaks as provided in section 40.02.890, or for repair of frozen facilities of customer, shall not render the utility liable for any adjustment in customer's bill. Whenever service is discontinued under section 40.02.890, the utility shall not be required to restore service until customer's account, if any be outstanding, is paid in full. The utility may also require customer to pay all costs of discontinuing or reestablishing service. (Code 1982, § 13.12.480; Ord. No. 1077, § 1, 1981) Sec. 40.02.940. Authorized utility personnel required for maintenance. With the exception of special installations approved by the utility, no person or other entity, other than agents, representatives or employees of the utility, shall maintain or repair the utility's water utility system. PROOFS Page 907 of 977 (Code 1982, § 13.12.490; Ord. No. 1077, § 1, 1981) Sec. 40.02.950. Violation of irrigation or sprinkling rules; penalty. At such time when the utility, through its agents, employees or representatives, determines that a customer is in violation of the utility's regulations in regard to sprinkling or irrigation, the utility shall deliver to such customer a copy of the notice of hours and days of sprinkling and irrigating, and shall advise the customer that such customer is in violation of the rule. If the customer is found in violation of the rule on more than one occasion in any one irrigation or sprinkling season, the customer will be notified by certified mail, with return receipt, that another violation will result in discontinuance of service or the installation of a meter. (Code 1982, § 13.12.500; Ord. No. 1077, § 1, 1981) Sec. 40.02.960. Violation of chapter division provisions; disconnection of service required when. For violation of any of these regulations or for nonpayment of water charges, as provided in the utility's schedule of rates and charges currently on file with the cityand approved by the commission, the utility has the right to disconnect water service following ten days' written notice to the customer. After service has been discontinued, the same shall not be reinstated until all delinquent charges are paid. Costs of all disconnects and/or subsequent reconnects shall be borne by the customer. (Code 1982, § 13.12.510; Ord. No. 1077, § 1, 1981) Secs. 40.02.970--40.02.1090. Reserved. Subdivision IV. Water System Rules and Regulations360 Sec. 40.02.1100. Rules and regulations adopted; part of contract with customer. A. The following rules and regulations are made for the government of the waterworks system of the city. B. These rules and regulations of the city, pertaining to its waterworks system are made a part of the contract with every individual, firm or corporation who takes water. The following rules and regulations are adopted by the city: 1. Rule G-1. An application for the introduction of water service to any premises must be signed by the owner of the premises and must be made on the regular form furnished by the city for that purpose. When such an application has been granted, the city, at the property owner's expense, will tap the main and furnish corporation cock, clamp when necessary, and any other material used or labor furnished in connection with the tapping of the main. All expense of laying the service pipes from the mains to the property owner's premises must be borne by the property owner. Additionally, the property owner is responsible for the maintenance of all service lines including the pipe and all necessary fixtures and appurtenances as required, from the curb box to the meter as well as all associated costs. The lines must be laid below the street grade and on the property owner's premises, at a depth not less than six feet and, designated by the city, to prevent freezing. A curb cock of approved pattern with a cast-iron curb box must be installed by the property owner at a point designated by the city. Whenever a tap is made through which regular service is not immediately desired, the applicant will bear the entire expense of tapping, subject to a refund whenever regular service is begun. 360 Shouldn’t this chapter be merged with chapter 13.12? Yes. PROOFS Page 908 of 977 2. Rule G-2. At some convenient point inside of the building and so located that it cannot freeze, a stop and waste cock must be placed, so that the water can be readily shut off from the building and the water pipes drained to prevent freezing. 3. Rule G-3. Waste of water is prohibited, and consumers must keep their fixtures and service pipes in good order at their own expense, and all waterways closed when not in use. Leaky fixtures must be repaired at once without waiting for notice from the city and if not repaired after reasonable notice is given, the water will be shut off by the city. 4. Rule G-4. No plumber or other person will be allowed to make connection with any conduit, pipe or other fixture connecting therewith or to connect pipes when they have been disconnected, or to turn water off or on, on any premises without permission from the city. 5. Rule G-5. Service pipes shall be so arranged that the supply of each separate building, house or premises may be controlled by a separate curb cock, placed within or near the line of the street curb, under rules established by the city. This curb cock and box must be kept in repair and easily accessible by the owner of the premises. 6. Rule G-6. Should the consumer desire to discontinue the use of water temporarily, or should the premises become vacant, the city, when notified to do so in writing, will shut off the water at the curb and allowance will be made on the bill for such time as the water is not in use. No deduction in bills will be made for the time any service pipes may be frozen. 7. Rule G-7. Shutoff notice; effect of shutoff on boilers a. Notice will be given, whenever practicable, prior to shutting off water, but consumers are warned that owing to unavoidable accidents or emergencies, their water supply may be shut off at any time. b. All persons having boilers on their premises, depending on connected pressure with the water mains, are cautioned against collapse of their boilers. As soon as water is turned off, the hot water faucet should be opened and left open until the water is again turned on. A check valve must always be placed between the boiler and the city's mains to prevent draining the boiler. Never leave the premises with any faucets open and water turned off. 8. Rule G-8. Contractors, builders and owners are required to take out a permit for the use of water for building and other purposes in construction work, payable in advance at the rate of $1.00 per month. Consumers are warned not to allow contractors to use their fixtures unless they produce a permit specifying the premises on which the water is to be used. Water will not be turned on at any new building until all water used during construction has been paid for. 9. Rule G-9. Permits for lawn sprinkling during each current year must be secured at the office of the city clerk, and payment made at the time of securing such permit, as the supply to any premises, using a hose without a permit, will be shut off without warning. Lawn sprinklers will only be permitted where water is carried into the house also. 10. Rule G-10. The city's officers or other authorized person shall have access at reasonable hours to enter any premises where water is used, for the purpose of making inspection or investigation. 11. Rule G-11. For violation of any of these rules or for nonpayment of water rent, for either domestic, sprinkling or other purposes, the city has the right to turn off the PROOFS Page 909 of 977 water without further notice, and after it has been turned off from any service pipe on account of nonpayment or violation of rules, the same shall not be turned on again until back rents are paid, together with the cost incurred thereby, amounting to $1.00. 12. Rule G-12. Applicability of flat rate and meter rate rules. a. The foregoing general rules shall be effective for all water utilities operating in Montana. The flat-rate rules and the meter-rate rules shall be effective for all water utilities having schedules of that nature. b. This rule, however, shall not be construed to mean that the cityany utility must have both flat rates and meter rates. A utility The city may adopt, subject to the approval of the Public Service Commission, either a flat-rate or meter-rate schedule, or both. c. In addition to the general flat-rate and meter-rate rules, the citya utility may adopt, subject to the approval of the Public Service Commission, other rules by written order of the director of public services, to be designated as "special rules," to fit local conditions. In case of any apparent conflict in rules, the general rules shall govern. C. Flat-rate service. 1. Rule f-1. The flat-rate will cover the use of water for domestic use, lawn sprinkling, and any other purposes enumerated on the rate sheet covering flat-rate services. The city agrees to furnish water for certain specified uses for a certain specified sum. If, therefore, a consumer furnishes other people with water without permission from the city, or uses it for other purposes than those the customer is paying for, it is a violation of the consumer's contract and the consumer offending, after reasonable notice, may have the consumer's water shut off and service discontinued until such time as the additional service furnished has been paid for, together with the actual additional expense incurred in shutting off and turning on water, not to exceed $1.00. 2. Rule F-2. Flat-rate water rents are payable monthly in advance and payments should be made at the city clerk's office on the first day of each month. If not paid before the 15th day of the month, the water will be shut off. 3. Rule F-3. Every user of water coming under the use prescribed under meter rates shall furnish a meter at the user's own expense, and the meter rate for the first month shall be the rate for such use as estimated by the city clerk, and thereafter the rate shall be paid monthly in advance; and payment should be made at the city clerk's office on the first day of each month. If not paid before the 15th day of each month, the water will be shut off. The rate for each succeeding month after the first month shall be based upon the amount of water used during the preceding month. 4. Rule F-4. Should any consumer on a flat-rate schedule wish to install additional fixtures or should such customer desire to apply the water to purposes not stated in the original application, written notice must be given the city prior to making such installation or change of use. Special extension permits are issued for any extension of pipes within a building. In case a consumer places new fixtures on the consumer's premises without securing an extension permit from the city, when such fixtures are discovered, a charge will be made for such extra fixtures at schedule rates for the full length of time such fixtures have been installed. 5. Rule F-5. Should it be desired to discontinue the use of water for any special PROOFS Page 910 of 977 purpose, whether for bathtubs, closets, lawn sprinklers, hose connections, or other fixtures, the faucet must be removed, the branch pipe plugged, and notice given the city at the city clerk's office before any reduction of rates will be made. (Code 1982, § 13.16.010; Ord. No. 1497, § 9, 1999) Sec. 40.02.1110. Plumbers; rules and regulations. A. The following rules and regulations are adopted for the government of plumbers: 1. Inspection of the work. Rule 3. Any person or firm, carrying on a plumbing business, who shall interrupt or resist an inspection of the person's or firm's work, done upon the pipes or appurtenances of the city waterworks or its consumers, shall be liable to a forfeiture of the person's or firm's license and bond; and may, on conviction, be fined in any sum not more than $100.00. 2. Application for permits. Rule 4. Any person or firm, carrying on a plumbing business, desirous of introducing water from the works to any premises, or of making any alterations, additions or extensions for consumers, shall first procure a permit from the city for such purpose, and for each and every opening, excavation or change required. All applications for permits must be made in writing, upon blanks furnished by the city, stating the full name of the owner of the property and the purpose for which the water is to be used. 3. Taps. Rule 5. No person, except the tapper employed by the city, shall, under any circumstances, tap the distribution pipes or insert pipes therein, or lay pipes in the streets; and any violation shall subject the offender, on conviction, to a fine not exceeding $100.00. 4. Kind of material that may be used. a. Rule 6. All pipes placed in connection with the city waterworks, and the pattern of all water closets, hydrants, stopcocks, and other appurtenances that are proposed to be used, shall be submitted to the inspection and subject to the approval of the waterworks committee. b. The water pipe laid in trenches shall be laid not less than six 6 1/2 feet below the surface of the ground, and in such a manner as to prevent rupture by settlement. c. 361All lead pipes used shall be of the class known as "extra strong," and shall weigh per lineal foot for various diameters as follows: Size of Tap Diameter of Pipe Weight Per Foot 1/2 inch 5/8 inch 3 pounds 5/8 inch 3/4 inch 3 pounds 10 oz. 3/4 inch 1 inch 4 pounds 12 oz. 1 inch 1 1/4 inch 6 pounds c. All pipe, either of lead or iron, and all cocks and fixtures must be of sufficient strength to sustain a hydrostatic pressure of 300 pounds to the square inch. 361 Deleted as obsolete per city instructions. PROOFS Page 911 of 977 e. 362No lead pipe of less diameter then one-half inch, or iron pipe of less diameter then five-eighths inch, nor any pipe of greater diameter than one inch, will be permitted to be placed under ground in connection with the waterworks, unless by special permit. d. All work shall be done in the manner required by the waterworks committee city engineer, or its authorized agent, and shall be subject to its inspection or approval; and no work underground shall be covered up until so inspected and approved. 5. Location of service pipe. a. Rule 7. Permits for attachments will not be granted when the service pipe passes over or through premises which at the time are, or may thereafter, become the property of persons other than the owner of the premises to be supplied by such attachments; and in case the building does not occupy the full width of the lot on which it is situated, the service pipe must either be laid under the building or in the lot clear of the building, and within three feet of the side wall thereof. b. No service pipe will be permitted to be laid in a sewer trench, or within 18 inches of such trench. 6. Waste cocks Curb stop and boxes. Rule 8. There shall be a curb stop and waste cock curb box attached to every supply pipe at the point where it enters the building, so as to admit of the water being shut off in frosty weather, or in case of accident, and of the pipes being drained. The service pipe passing from the ground into every building shall be enclosed in a box of not less than eight inches, inside measurement, filled with sawdust or other suitable material to protect the pipes from frost, except when connections are in cellars. 7. Turning on and shutting off water. Rule 9. No plumber shall turn on the water at the curb cock, or allow any person in such plumber's employ to do so, except with the special permission of the waterworks committee, or its agent. When the work in any building has been completed and tested, it shall be the duty of the plumber or fitter to turn off the water. 8. Report of plumbers. a. Rule 10. Within 48 hours after the completion of any work, the plumber, or other person doing the work, shall make the water collector a full return stating the ordinary and special uses for which the water is to be applied, giving a description of the apparatus and arrangements used, the number of stories and rooms in the building, and all the particulars the case may call for. All plumbers shall make to the water collector, in addition to the special report required, not later than the fifth day of each month, a regular monthly report which shall cover, with the detail required by the special report above referred to, all work done by such plumber involving any new or increased use of the city's water, including sewer use and connections, during the calendar month preceding the date of such report. If no such work has been done, the plumber shall so report. b. For failure to make such report and return, or for any misrepresentation or 362 Deleted as obsolete per city instructions. PROOFS Page 912 of 977 false statement therein or omissions therefrom, or for leaving the water on after completion or after testing any plumbing, the plumber so offending shall be liable to the suspension or cancellation of the plumber's license upon conviction, and in addition to such suspension or cancellation, shall be subject to a fine in any sum not exceeding $50.00. 9. No plumber or fitter to allow his name to be used by others. a. Rule 11. No plumber or fitter shall allow the plumber's or fitter's name to be used by any person, directly or indirectly, either to obtain a permit or permits, or to do any work under the plumber's or fitter's bond. b. Rule 12. The license of any plumber violating any of the city's rules and regulations governing the introduction, supply and consumption of water, will be revoked or suspended, at the discretion of the city, and will not be renewed under any circumstances until the city has been reimbursed for all damages that it may have sustained on account of such violation. (Code 1982, § 13.16.020) Chapter 13.20 IRRIGATION RESTRICTIONS363 13.20.010. Outdoor use of water--restrictions authorized when. The director of public safety of the city is authorized, directed and empowered, whenever in his opinion the necessities of the situation demand such action, to restrict and/or wholly prohibit the use of the water supply of Bozeman City Waterworks for garden, lawn or other outdoor irrigation or use, except fire protection; such restriction and/or prohibition shall become effective twenty-four hours after notice thereof shall be published in any daily newspaper published in the city. (Code 1982, § 13.20.010) 13.20.020. Violation--penalty. Every person, firm, association or corporation violating any order of the director of public safety made under the provisions of this chapter shall be subject to a fine not exceeding twenty- five dollars. In any prosecution for violation of this chapter, it shall be no defense that the offender had no actual notice or knowledge of such restriction and/or prohibition. In addition to the fine hereby provided for, the judgment in any such case may also provide that the water supply from the city waterworks shall be cut off from the offender until the fine is paid or security given for the payment thereof, and all costs, in the event of appeal from such judgment of conviction in the police court of the city for violation of this chapter. (Code 1982, § 13.20.020) Secs. 40.02.1120--40.02.1240. Reserved. DIVISION 4. OUTDOOR WATER USE RESTRICTIONS Sec. 40.02.1250. Definitions. A. For the purposes of this division, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular 363 Was this intended to be superseded by the irrigation restrictions in Code ch. 13.21? Yes. PROOFS Page 913 of 977 number, and words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. __ "City" means the city of Bozeman. __ "Director" means the director of public safety or public service. 1. "Outdoor use" means the use of water, excepting water which has been used indoors and is being recycled for outdoor use, for: a. Sprinkling or irrigating gardens, lawns or other outdoor vegetation; b. Washing automobiles, trucks, or other mobile equipment except at places of business where such are washed on every business day either with attendants, with automatic equipment or by self-service; c. Washing sidewalks, driveways, outside building walls or other outdoor surfaces; d. Washing any business or industrial equipment machinery; e. Operating any ornamental fountain or other similar structure not employing a recirculating system; f. Swimming and wading pools not employing a filter and recirculating system; g. Leakage or other escape outdoors through defective plumbing when a person has knowingly permitted the defective plumbing to remain in disrepair; h. Settling back-fill around foundations, pipes, etc.; and i. Other outdoor uses except use for fire protection. __ "Person" means any individual, business association, partnership, corporation or other legal entity or organization of any kind. 2. "Water" means water from the city's water service utility. (Code 1982, § 13.21.010; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1260. Application of restrictions. A. The provisions of this division or any restriction or prohibition in force pursuant thereto shall apply as follows: 1. To all persons using water both in and outside the city, and regardless of whether any person using water shall have a contract for water service with the city; or 2. To persons contracting for water service at a location who shall be responsible and strictly liable for all water use at that location. (Code 1982, § 13.21.020; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1270. Authority to restrict outdoor use of water. The director of public services is, with the concurrence of the city manager, authorized, directed and empowered, whenever in the director's opinion the necessities of the situation demand such action, to restrict or wholly prohibit the outdoor use of the water supply of the water service utility. (Code 1982, § 13.21.030; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1280. Restriction of particular indoor uses. Whenever outdoor use restrictions are in effect, business establishments which serve beverages for human consumption shall be prohibited from serving water except upon request. (Code 1982, § 13.21.040; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) PROOFS Page 914 of 977 Sec. 40.02.1290. Sprinkling systems; timing. Whenever outdoor use restrictions are in effect, the director of public services may set alternative time restrictions for the use of large scale sprinkling systems or those which are equipped with a timing device. (Code 1982, § 13.21.050; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1300. Landscaping; seeding; sodding; planting. While it is not the intent of this division to place restrictions on the normal conduct of business, whenever outdoor use restrictions are in effect, the director of public services may restrict or wholly prohibit the seeding, sodding or planting of live vegetation. (Code 1982, § 13.21.060; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1310. Notice required. Restrictions or prohibitions imposed by the director of public services shall become effective at midnight immediately following the publication of notice thereof in any daily newspaper published in the city. (Code 1982, § 13.21.070; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1320. Wasting water prohibited. Whenever outdoor use restrictions are in effect, no person shall waste water which shall include but not be limited to permitting water to escape or run to waste. (Code 1982, § 13.21.080; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1330. Exception to maintain sanitation. The director of public services shall have the authority to permit a reasonable use of water in any case necessary to maintain adequate health and sanitation standards. (Code 1982, § 13.21.090; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1340. Enforcement. A. Police officers to enforce. Every police officer of the city shall, in connection with the duties imposed by law, diligently enforce the provisions of this division. B. Discontinuance of service. The city manager shall have the authority to enforce the provisions of this division by the discontinuance of water service in the event of violation hereof. (Code 1982, § 13.21.100; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1350. Penalties364. Any person who violates this division or the restrictions issued hereunder shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in an amount not less than $100.00 or more than $500.00. (Code 1982, § 13.21.110; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) Sec. 40.02.1360. Legislative intent. It is the intent of the city commission that the criminal offense listed in this division shall be an offense involving absolute liability. Unless specifically provided otherwise, this offense shall not require proof of any one of the mental states described in MCA 45-2-101(33), (37), and (58) 364 No imprisonment? Leave as is. PROOFS Page 915 of 977 (Code 1982, § 13.21.120; Ord. No. 1185, § 1, 1985; Ord. No. 1201, § 1, 1986) ARTICLE 3. SEWERS* *State law reference—Public sewer systems, MCA 7-13-4201 et seq. DIVISION 1. GENERALLY Secs. 40.03.010--40.03.140. Reserved. DIVISION 2. SEWER SERVICE RULES AND REGULATIONS Subdivision I. In General Article 1. General Provisions Sec. 40.03.150. Regulations adopted; applicability. The city commission adopts the following service regulations prescribing standards for sewer service as provided under Montana Law. These regulations supersede all rules, regulations and supplements previously applicable to municipal sewer utility operations. (Code 1982, § 13.24.010; Ord. No. 1081, § 1, 1981) Sec. 40.03.160. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: __ "Commission" means the Bozeman city commission. 1. "Customer" means any individual, partnership, association, firm, public or private corporation or governmental agency, or any other entity receiving sewer service from the utility. 2. "Point of delivery" means the point at which the utility's facilities connect physically to customer's facilities, the location of which shall be designated by or satisfactory to the utility, unless otherwise defined in the service agreement. 3. "Residential dwelling unit" means any room or combination of rooms, including trailers and mobile homes, with facilities for cooking, designed for occupancy by one family. __ Room. On flat-rate service, where the charge is based on the number of rooms, any finished room with an area of eighty square feet will be considered a "room." Bathrooms shall have no minimum area requirements.365 4. "Service agreement" means the agreement or contract between the utility and customer pursuant to which service is supplied and taken. 5. "Sewer service" or "service" means the collection and treatment of waterborne wastes. 6. "Utility" means the City of Bozeman and its sewer service division, engaged in the business of providing sewage collection and treatment to its customers on its system in the state of Montana. (Code 1982, § 13.24.020; Ord. No. 1081, § 1(Rule 1, §§ 1-1--1-8), 1981) 365 Note deletion requested by city staff. PROOFS Page 916 of 977 Secs. 40.03.170--40.03.290. Reserved. Subdivision II. General Regulations Article 2. General Regulations Sec. 40.03.300. Purpose of provisions. These service regulations are intended to define good practice which can normally be expected, but are not intended to exclude other accepted standards and practices not covered herein. They are intended to ensure adequate service to the public and protect the utility from unreasonable demands. (Code 1982, § 13.24.030; Ord. No. 1081, § 1(Rule 2, § 2-2), 1981) Sec. 40.03.310. Applicability of provisions. These service regulations govern the supplying by the utility, and taking by its customers, sewer service to the utility's sewer system. These regulations are subject to revision, upon approval by the commission, and supersede all regulations, by whatever term designated, which may heretofore govern the collection and treatment of waterborne wastes. (Code 1982, § 13.24.040; Ord. No. 1081, § 1(Rule 2, § 2-1), 1981) Sec. 40.03.320. Regulations available to the public366. There shall be made available to the public at the office of the city clerkcommission and at the principal offices of the utility copies of these service regulations and the rate schedules, forms or agreement for sewer collection and treatment standards of the utility. (Code 1982, § 13.24.050; Ord. No. 1081, § 1(Rule 2, § 2-3), 1981) Sec. 40.03.330. Waiver of regulations; conditions367. In any case where compliance with any of these rules introduces unusual difficulty, such rule may be temporarily waived by the director of public servicescommission upon application of the utility or the customer. If in any case compliance with a rule would cost more than the results of such compliance are worth, such rule may be permanently set aside by the commission. (Code 1982, § 13.24.060; Ord. No. 1081, § 1(Rule 2, § 2-4), 1981) Secs. 40.03.340--40.03.440. Reserved. Subdivision III. Service Provided Article 3. Service Provided Sec. 40.03.450. General service conditions. The utility agrees to furnish sewer services for certain specified purposes, as contained in the service agreement, for a certain specified sum based either on a metered or nonmetered rate, as hereinafter provided. (Code 1982, § 13.24.070; Ord. No. 1081, § 1(Rule 3, § 3-1), 1981) 366 Note changes requested by city staff. 367 Note changes requested by city staff. PROOFS Page 917 of 977 Sec. 40.03.460. Easements, rights-of-way and permits furnished by customer. A customer, or prospective customer, must furnish all easements, cleared rights-of-way and permits necessary to enable the utility to supply the service required. (Code 1982, § 13.24.080; Ord. No. 1081, § 1(Rule 3, § 3-5), 1981) Sec. 40.03.470. Sewer service for customer use only. If a customer furnishes other individuals or entities with sewer services without permission from the utility, or utilizes the sewer service for other purposes than for which it was intended, that customer is in violation of the customer's service agreement. Customers in violation of their service agreements may have their water service discontinued until such time as the charge for such additional service has been paid, together with the actual additional expense incurred by the utility in discontinuing or reconnecting water service. (Code 1982, § 13.24.090; Ord. No. 1081, § 1(Rule 3, § 3-2), 1981) Sec. 40.03.480. Access to premises for inspection. The utility's employees or representatives, or other authorized persons, shall have access at reasonable hours to enter any premises where sewers are used, for the purpose of making inspection or investigation. (Code 1982, § 13.24.100; Ord. No. 1081, § 1(Rule 3, § 3-6), 1981) Sec. 40.03.490. Extension of service to other persons prohibited when. In no instance may the customer extend the customer's sewer facilities across or under a street, alley, lane, court or avenue, or other public or private space, existing under different ownership, in order to obtain a rate advantage by taking sewer service for two or more premises through one connection. (Code 1982, § 13.24.110; Ord. No. 1081, § 1(Rule 3, § 3-3), 1981) Sec. 40.03.500. Connections to be made by authorized personnel. With the exception of special installation approved by the utility, no person or other entity, other than agents, representatives or employees of the utility shall connect to the utility's collection system or service lines attached thereto. (Code 1982, § 13.24.120; Ord. No. 1081, § 1(Rule 3, § 3-4), 1981) 368Article 4. Service Agreement 13.24.130. Application and service agreement--effect. A utility may require a customer or prospective customer to sign one of the utility's standard application or service agreement forms. The application or agreement shall be binding only after acceptance by a duly authorized representative of the utility. In case of acceptance of service by a customer prior to the signing of such agreement, customer shall pay for the service so furnished in accordance with the applicable rate schedule or schedules in force and shall abide by these service regulations. (Code 1982, § 13.21.130; Ord. No. 1081, § 1(Rule 4, § 4-1), 1981) 368 Deleted the following at the request of city staff. PROOFS Page 918 of 977 Article 5. Credit and Deposits 13.24.140. Credit--establishment required when. The utility may at any time require from any customer, or prospective customer, that it establish credit as hereinafter set forth, or that the customer or prospective customer deposit a certain amount of funds to guarantee payment of utility bills. Regulations regarding the establishment of credit and the filing of deposit to guarantee payment are as hereinafter set forth. (Code 1982, § 13.24.140; Ord. No. 1081, § 1(Rule 5, § 5-1), 1981) 13.24.150. Credit--residential service requirements. An applicant for residential utility service may establish credit by demonstrating to the utility any one of the following factors: __ Prior service with utility in question within the previous 12 months during which for at least six consecutive months service was rendered and was not disconnected for failure to pay the utility bill and no more than one delinquency notice was served upon applicant; __ Prior service with a utility of the same type as that of which service is sought, with a satisfactory payment record as demonstrated in subsection A above, provided that the reference may be quickly and easily checked by the utility and the necessary information is provided; __ Initiation or continuation of service to a residence where prior customer still resides and where any balance for such service to that prior customer is past-due or owing; __ Where the customer is a tenant or lessee of rented property where the landlord or lessor has not assumed, in writing, obligation to pay the utility bill on behalf of the tenant or lessee, or a satisfactory guarantor has not been furnished as provided in subsection C of this section; __ Where the customer has, in an unauthorized manner, interferred with the service of the utility situated or delivered on or about the customer's premises within the last five years, if the finding of unauthorized interference or use is made and determined after notice and opportunity for hearing is provided to the customer and is not in dispute. (Code 1982, § 13.24.150; Ord. No. 1081, § 1(Rule 5, § 5-2), 1981) 13.24.160. Deposits--standards to be applied uniformly. A utility shall apply deposit standards uniformly as condition of utility service to all residential customers. (Code 1982, § 13.24.160; Ord. No. 1081, § 1(Rule 5, § 5-10), 1981) 13.24.170. Deposits--prohibited standards designated. A utility shall not require a cash deposit or other guarantee as a condition of new or continued residential utility service based upon commercial credit standards (except as provided in these rules), income, home ownership, residential location, race, color, creed, sex, age, national origin, or any other criteria not authorized by these rules. This rule does not prohibit a utility from ensuring that agreements with customers who may be incompetent, such as minors, are made in such a manner and with such persons, as to the legally binding. (Code 1982, § 13.24.170; Ord. No. 1081, § 1(Rule 5, § 5-5), 1981) PROOFS Page 919 of 977 13.24.180. Deposits--amount. In instances where a deposit may be required by the utility, the deposit shall not exceed one- sixth of estimated annual billings. (Code 1982, § 13.24.180; Ord. No. 1081, § 1(Rule 5, § 5-6), 1981) 13.24.190. Deposits--recordkeeping requirements. A utility shall maintain a record of all deposits received from customers, showing the name of each depositor, the date and amount of the deposit made, the location of the premises occupied by the depositor at the time of making the deposit, and each successive location while the deposit is retained. __ Each customer posting a cash deposit shall receive in writing at the time of tender of the deposit a receipt as evidence thereof, which contains the following minimum information: __ Name of customer; __ Address of customer; __ Place of payment; __ Date of payment; __ Amount of payment; __ Identification of the employee receiving the payment; and __ Statement of the terms and conditions governing the receipt, retention and return of deposit funds. __ A utility shall provide means whereby a customer entitled to a return of his deposit is not deprived of deposit funds even though he may be unable to produce the original receipt for the deposit. In such event, utility records shall be controlling. (Code 1982, § 13.24.190; Ord. No. 1081, § 1(Rule 5, § 5-9), 1981) 13.24.200. Deposit--interest payment conditions. Simple interest at the rate of six percent per year on the amount of the deposit shall be paid to the customer upon refund of such deposit, or shall be paid annually to the customer upon demand, provided the deposit has remained intact with the utility for a period of at least six months in order to earn such interest. Interest shall cease on the date of termination of service or refund of deposit. (Code 1982, § 13.24.200; Ord. No. 1081, § 1(Rule 5, § 5-7), 1981) 13.24.210. Deposits--refund conditions. __ Utility may refund any customer's deposit, or a part thereof, by check or by credit to customer's account at any time, and any unpaid interest due on the refund shall be paid to date of refund on such portion of the deposit as has been held intact by utility for six months or more. __ Deposit plus accrued interest shall be refunded under the following circumstances and in the following form: __ Satisfactory Payment. Where the customer requests the refund, and has for 18 consecutive months paid for service when due in a prompt and satisfactory manner as evidenced by the following: __ The utility has not initiated disconnection proceedings against the customer; __ No more than two notices of delinquency have been made to the customer by PROOFS Page 920 of 977 the utility; __ Termination of Service. If the deposit is not returned as above provided, upon termination of service the utility shall return to the customer the amount then on deposit plus accrued interest, less any amounts due the utility by the customer for service rendered. (Code 1982, § 13.24.210; Ord. No. 1081, § 1(Rule 5, § 5-8), 1981) 13.24.220. Guarantee--in lieu of deposit when. In lieu of cash deposit required by these rules, a utility shall accept written guarantee of a responsible party as surety for a customer service account; for the purpose of this rule, a "responsible party" means: __ Any individual or business entity which has maintained service with the utility in question for the previous twenty-four months, and who has not had service disconnected for failure to pay and has received no more than two delinquency notices. __ Any special fund identified in writing as a guarantee and approved by the utility. (Code 1982, § 13.24.220; Ord. No. 1081, § 1(Rule 5, § 5-11), 1981) 13.24.230. Guarantee--terms and conditions--release of guarantee. A guarantee accepted in accordance with these rules is subject to the following terms and conditions: __ It shall be in writing, and if necessary shall be renewed in a similar manner annually; __ It shall state the terms of guarantee, the maximum amount guaranteed (such maximum not to exceed an estimated one-year bill, such estimation to be made at the time the service is established), and that the utility shall not hold the guarantor liable for sums in excess thereof unless agreed to in a separate written instrument. (Code 1982, § 13.24.230; Ord. No. 1081, § 1(Rule 5, § 5-12), 1981) 13.24.240. Guarantor released when. __ The guarantor shall be released, and upon the satisfactory payment by the customer of all property charges for utility service for a period of 12 successive months. For purposes of this section, payment is satisfactory if: __ The utility has not initiated disconnection proceedings against the customer; __ No more than two notices of delinquency have been made to the customer by the utility. __ The utility may withhold the release of the guarantor pending the resolution of a disputed discontinuance. (Code 1982, § 13.24.240; Ord. No. 1081, § 1(Rule 5, § 5-13), 1981) PROOFS Page 921 of 977 Secs. 40.03.510--40.03.640. Reserved. Subdivision IV. Service Conditions Article 6. Service Conditions Sec. 40.03.650. Basis for supply of service. Service will be supplied only under and pursuant to these service regulations, and any modifications or additions thereto lawfully made, and under such applicable rates, schedules and contracts as may from time to time be lawfully established. (Code 1982, § 13.24.250; Ord. No. 1081, § 1(Rule 6, § 6-1), 1981) Sec. 40.03.660. Service provided only to existing collection points. Service will be supplied under the applicable rates, schedules and contracts only at points of collection as are presently existing on the utility's system. (Code 1982, § 13.24.260; Ord. No. 1081, § 1(Rule 6, § 6-2), 1981) Sec. 40.03.670. Line-extension costs borne by customer. Line-extension costs will be borne by the customer requesting that service. (Code 1982, § 13.24.270; Ord. No. 1081, § 1(Rule 6, § 6-3), 1981) Sec. 40.03.680. Application and other service conditions. Application for the use of sewers from an existing service must be made at the city finance office on a printed form provided for that purpose. Service will be furnished to any customer who fully and truly sets forth all the purposes for which water may be required and who agrees to and conforms with all the rules and regulations governing the service, provided the purposes set forth comply with all the utility's rules and regulations as on record and approved by the commission, and that the existing utility sewer system is adequate to meet the use for which the application is made. (Code 1982, § 13.24.280; Ord. No. 1081, § 1(Rule 6, § 6-5), 1981) Sec. 40.03.690. Installation prerequisites and procedures. All sewer services to any premises shall be installed by a bonded installer, except under special conditions approved and inspected by the utility. An application for introduction of sewer service to any premises must be signed by the owner or the owner's designated agent, and must be made on a regular form furnished by the utility for that purpose. Prior to approval of such application the utility may require the customer to establish credit or to furnish a deposit as provided in article 5 of this chapter. The utility shall then install the service to the property line, and the customer shall have the service brought to the building by a bonded installer, agreed upon between utility and customer. (Code 1982, § 13.24.290; Ord. No. 1081, § 1(Rule 6, § 6-6), 1981) Sec. 40.03.700. Billing--For multiple delivery points or separate meters for single customers. Where separate points of delivery exist for supplying service to a single customer, or separate meters are maintained and provided for measurement of service to a single customer, each point of collection or metering shall be separately billed under the applicable rates. (Code 1982, § 13.24.300; Ord. No. 1081, § 1(Rule 6, § 6-4), 1981) PROOFS Page 922 of 977 Sec. 40.03.710. Same--Meter service; penalty for delinquent payments. All metered services shall be billed based on the actual water consumed, based on rates and charges on file with and approved by the commission. Payment is due upon receipt of the bill, and will be considered delinquent if not paid by the 15th day of the month in which it is received. If the bill is not paid within 30 days after it has become delinquent, the water service will be disconnected after a ten-day written notice. Service shall not be reinstated until delinquent charges are paid, together with the cost incurred by the utility in disconnecting or subsequently reconnecting the line. (Code 1982, § 13.24.310; Ord. No. 1081, § 1(Rule 6, § 6-13), 1981) Sec. 40.03.720. Same--Flat-rate service; penalty for delinquent payments. All flat-rate services shall be billed monthly in advance, on or about the first day of each month, based on rates and charges on file with and approved by the commission. Payment is due upon receipt of the bill, and will be considered delinquent if not paid by the 15th day of the month in which it is received. If the bill is not paid within 30 days after it has become delinquent, the sewer service will be disconnected after a ten-day written notice. Service will not be reinstated until delinquent charges are paid, together with the cost incurred by the utility in disconnecting and subsequently reconnecting the line. (Code 1982, § 13.24.320; Ord. No. 1081, § 1(Rule 6, § 6-13), 1981) Sec. 40.03.730. Adjustment of accounts following repairs. Following completion of the repair of customer's lines, the utility may adjust the customer's account to the extent of actual water consumed retroactive for three billing periods, commencing upon completion of the repair. The customer will be responsible for notifying utility of the repair made. (Code 1982, § 13.24.330; Ord. No. 1081, § 1(Rule 6, § 6-7), 1981) Sec. 40.03.740. Continuity of service; liability limitations. A. The utility shall make reasonable effort to avoid interruptions of service, and when such interruptions occur, shall reestablish service with reasonable diligence. B. The utility shall not be liable to customer or others for failure or interruption of sewer service due to acts of God, governmental regulations, court or commission orders, acts of the public enemy, strikes or labor difficulties, accidents, weather conditions, acts of third parties, droughts or, without limitation by the foregoing, any other cause beyond the reasonable control of utility. (Code 1982, § 13.24.340; Ord. No. 1081, § 1(Rule 6, § 6-8), 1981) Sec. 40.03.750. Suspension of service for repairs and changes. When it is necessary for the utility to make repairs or to change its sewer collecting system, the utility may, without incurring any liability therefor, suspend service for such period as may be reasonably necessary, and in such manner as to minimize the significance to customers. (Amended during 6-96 supplement; Code 1982, § 13.24.350; Ord. No. 1081, § 1(Rule 6, § 6-10), 1981) Sec. 40.03.760. Maintenance--Work performed by utility. Once service to any customer has been installed, the utility, at its own expense, shall maintain the service lines up to the public right-of-way line, with the exception that removal of tree roots and resultant line repair shall be borne by the customer. (Code 1982, § 13.24.360; Ord. No. 1081, § 1(Rule 6, § 6-9), 1981; Ord. No. 1160, 1984) PROOFS Page 923 of 977 Sec. 40.03.770. Same--Authorized personnel required. With the exception of special installations approved by the utility, no person or other entity, other than agents, representatives or employees of the utility, shall maintain or repair the utility's sewer system. (Code 1982, § 13.24.370; Ord. No. 1081, § 1(Rule 6, § 6-11), 1981) Sec. 40.03.780. Violation of regulations; nonpayment of sewer charges notice; penalty. For violation of any of these regulations, or for nonpayment of sewer charges as provided in the utility's schedule of rates and charges currently on file with and approved by the commission, the utility has the right to disconnect sewer service following ten days' written notice to the customer. After service has been discontinued, the same shall not be reinstated until all delinquent charges are paid. Costs of all disconnects and/or subsequent reconnects shall be borne by the customer. (Code 1982, § 13.24.380; Ord. No. 1081, § 1(Rule 6, § 6-12), 1981) Secs. 40.03.790--40.03.890. Reserved. DIVISION 3. WASTEWATER COLLECTION AND TREATMENTSEWAGE DISPOSAL SYSTEM Sec. 40.03.900. Purpose and policy. A. This division sets forth uniform requirements for direct and indirect contributors into the wastewater collection and treatment system for the city and enables the city to comply with all applicable state and federal laws required by the Clean Water Act of 1977 and the General Pretreatment Regulations (40 CFR, Part 403).369 B. The objectives of this division are: 1. To prevent the introduction of pollutants into the municipal wastewater system which will interfere with the operation of the system or contaminate the resulting sludge; 2. To prevent the introduction of pollutants into the municipal wastewater system which will pass through the system, inadequately treated, into receiving waters or the atmosphere or otherwise be incompatible with the system; 3. To improve the opportunity to recycle and reclaim wastewaters and sludges from the system; and 4. To provide for equitable distribution of the cost of the municipal wastewater system. C. This division provides for the regulation of direct and indirect contributors to the municipal wastewater system through the issuance of permits to certain nondomestic users and through enforcement of general requirements for the other users, authorizes monitoring and enforcement activities, requires user reporting, assumes that existing customer's capacity will not be preempted, and provides for the setting of fees for the equitable distribution of costs resulting from the program established herein. (Code 1982, § 13.28.010; Ord. No. 1184, § 1, 1985) Sec. 40.03.910. Definitions. A. The following words, terms and phrases, when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 369 Note deletion requested by city staff. PROOFS Page 924 of 977 1. "Act" or "the Act" means the Federal Water Pollution Control Act, also known as the Clean Water Act (CWA), as amended, title 33, ch. 26, USC 1251, et seq.370 2. "Authorized representative of industrial user". An "authorized representative of an industrial user" may be means: a. A principal executive officer or an officer of at least the level of vice-president, if the industrial user is a corporation; b. A general partner or proprietor if the industrial user is a partnership or proprietorship, respectively; c. A duly authorized representative of the individual designated in subsections a and b of this definition if such representative is responsible for the overall operation of the facilities from which the indirect discharge originates. 3. "Biochemical oxygen demand (BOD)" means the quantity of oxygen utilized in the biochemical oxidation of organic matter under standard laboratory procedure, five days at 20 degrees Celsiuscentigrade371 expressed in terms of weight and concentration (milligrams per liter (mg/l)). 4. "Building drain" means that part of the lowest horizontal piping of a drainage system which receives the discharge from soil, waste and other polluted waters in drainage pipes inside the walls of buildings and conveys it to the building sewer, beginning five feet outside the inner face of the building wall. 5. "Building sewer" means the extension from the building drain to the public sewer or other place of disposal. 6. "Bypass" means the diversion of waste streams from any portion of an industrial user's treatment facility directly to the POTW. 7. "Categorical standards" means National Categorical Pretreatment Standards or pretreatment standard. __ "City" means the city of Bozeman, Montana. 8. "Combined sewer" means a sewer receiving both surface runoff and sewage. 9. "Cooling water" means the water discharged from any use such as air conditioning, cooling or refrigeration, or to which the only pollutant added is heat. 10. "Direct discharge" means the discharge of treated or untreated wastewater directly to the waters of the state of Montana. 11. "Engineer" means the city engineer, or the city engineer's authorized deputy, agent or representative. 12. "Estimated maximum daily discharge" means the greatest discharge into the sewerage system which it is estimated will occur in any one 24-hour day during the year. 13. "Garbage" means solid wastes from the preparation, cooking and dispensing of food, and from the handling, storage and sale of produce. 14. "Grab sample" means a sample which is taken from a waste stream on a one-time basis with no regard to the flow in the waste stream and without consideration of 370 Note change requested by city staff. 371 Ok to change Centigrade to Celsius throughout? Yes. PROOFS Page 925 of 977 time. 15. "Holding tank waste" means any waste from holding tanks such as chemical toilets, campers, trailers, septic tanks and vacuum pump tank trucks. 16. "Indirect discharge" means the discharge or the introduction of nondomestic pollutants from any source regulated under section 307(b) or (c) of the Act, (33 USC 1317), into the publicly owned treatment works (POTW). 17. "Industrial user" means any user that discharge wastewater other than domestic wastes from industrial or commercial processes. 18. "Industrial wastes" means the liquid wastes from industrial processes, as distinct from sanitary sewage. 19. "Interference" means the inhibition or disruption of the POTW treatment processes or operations which contributes to a violation of any requirement of the city's NPDES permit. The term includes prevention of sewage sludge use or disposal by the POTW in accordance with section 405 of the Act (33 USC 1345) or any criteria, guidelines or regulations developed pursuant to the Solid Waste Disposal Act (SWDA), the Clean Air Act, the Toxic Substances Control Act, or more stringent state criteria (including those contained in any state sludge management plan prepared pursuant to title IV of SWDA) applicable to the method of disposal or use employed by the POTW. 20. "National Categorical Pretreatment Standard" or "pretreatment standard" means any regulation containing pollutant discharge limits promulgated in accordance with section 307(b) and (c) of the Act (33 USC 1347) which applies to a specific category of industrial users. 21. "National Pollution Discharge Elimination System permit" or "NPDES permit" means a permit issued pursuant to section 402 of the Act (33 USC 1342). 22. "National Prohibitive Discharge Standard" or "Prohibitive Discharge Standard" means any regulation developed under the authority of 307(b) of the Act and 40 CFR 403.5, as amended. 23. "Natural outlet" means any outlet into a watercourse, pond, ditch, lake or other body of surface water or groundwater. 24. "New source" means any source, the construction of which is commenced after the publication of proposed regulations prescribing section 307(c) (33 USC 1317), Categorical Pretreatment Standard, which will be applicable to such source, if such standard is thereafter promulgated within 120 days of proposal in the Federal Register. Where the standard is promulgated later than 120 days after proposal, a new source means any source, the construction of which is commenced after the date of promulgation of the standard. 25. "Pass-through" means a discharge which exits the POTW into waters of the state in quantities or concentrations which alone or in conjunction with a discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW's NPDES permit (including an increase in the magnitude or duration of a violation). __ "Person" means any individual, business association, partnership, corporation or other legal entity. 26. "pH" means the logarithm (base 10) of the reciprocal of the concentration of hydrogen ions expressed in grams per liter of solution. PROOFS Page 926 of 977 27. "Pollutant" means any dredged spoil, solid waste, incinerator residue, wastewater, garbage, sewage sludge, munitions, chemical wastes, biological material, radioactive material, heat, wrecked or discharged equipment, rock, sand, cellar dirt and industrial, municipal and agricultural waste discharge into water. 28. "Pollution" means the manmade or man-induced alteration of the chemical, physical, biological and radiological integrity of water. 29. "POTW treatment plant" means that portion of the POTW designed to provide treatment to wastewater. 30. "Pretreatment" or "treatment" means the reduction of the amount of pollutants, the elimination of pollutants, or the alteration of the nature of pollutant properties in wastewater to a less harmful state prior to or in lieu of discharging or otherwise introducing such pollutants into a POTW. The reduction or alteration can be obtained by physical, chemical or biological processes, or process changes by other means, except as prohibited by 40 CFR 403.6(d). 31. "Properly shredded garbage" means the wastes from the preparation, cooking and dispensing of foods that have been shredded to such a degree that all particles will be carried freely under the flow conditions normally prevailing in public sewers, with no particle greater than one-half inch in any dimension. 32. "Publicly owned treatment works (POTW)" means a treatment works as defined by section 212 of the Act (33 USC 1292) which is owned in this instance by the city. This definition includes any sewers that convey wastewater to the POTW treatment plant, but does not include pipes, sewers or other conveyances not connected to a facility providing treatment. For the purposes of this division, POTW shall also include any sewers that convey wastewaters to the POTW from persons outside the city who are, by permit, contract or agreement with the city, users of the city's POTW. 33. "Public sewer" means a sewer in which all owners of abutting properties have equal rights and which is controlled by the city. 34. "Sanitary sewer" means a sewer which carries sewage and to which stormwater, surface water and groundwater are not intentionally admitted. 35. "Severe property damage" means substantial physical damage to property, or significant operational interference, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production. 36. "Sewer" means a pipe or conduit for carrying sewage. __ "Shall" is mandatory; "may" is permissive. 37. "Significant industrial user." Except as provided in section 40.03.1130.C the term "significant industrial user" means: a. All industrial users subject to categorical pretreatment standards under 40 CFR 403.6 and 40 CFR ch. I, subch. N; and b. Any other industrial user that discharges an average of 25,000 gallons per day or more of process wastewater to the POTW (excluding sanitary noncontact cooling and boiler blowdown wastewater); contributes a process wastestream which makes up five percent or more of the average dry weather hydraulic or organic capacity of the POTW treatment plant; or is designated PROOFS Page 927 of 977 as such by the engineer on the basis that the industrial user has a reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement. 38. "Slug discharges" means any nonroutine discharge, episodic in nature, including but not limited to an accidental spill or a noncustomary batch discharge. 39. "Standard Industrial Classification (SIC)" means a classification pursuant to the Standard Industrial Classification Manual issued by the Executive Officer of the President, Office of Management and Budget, 1972. __ "State" means the state of Montana. 40. "Storm sewer" or "storm drain" means a sewer which carries storm and surface waters and drainage, but excludes sewage and polluted industrial wastes. 41. "Stormwater" means any flow occurring during or following any form of natural precipitation and resulting therefrom. 42. "Suspended solids" means solids that either float on the surface or are in suspension in water, sewage or other liquids, and which are removable by laboratory filtering. 43. "Toxic pollutant" means any pollutant or combination of pollutants listed as toxic in regulations promulgated under the provisions of CWA 307(a) or other acts. 44. "Upset" means an incident, beyond the reasonable control of the industrial user, that causes the user to be in unintentional and temporary noncompliance with categorical pretreatment standards. Upsets do not include noncompliance caused by operational error, improperly designed treatment facilities, lack of preventive maintenance, or careless or improper operation. 45. "User" means any person who contributes, causes or permits the contribution of wastewater into the city's POTW. 46. "Wastewater" means the liquid and water carried industrial or domestic wastes from dwellings, commercial buildings, industrial facilities and institutions, together with such groundwater, surface water and stormwater as may be present, whether treated or untreated, which is contributed into or permitted to enter the POTW. 47. "Wastewater contribution permit" shall have the meaning as set forth in section 40.03.1130. 48. "Watercourse" means a channel in which a flow of water occurs, either continuously or intermittently. 49. "Waters of the state" means all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs, reservoirs, aquifers, irrigation systems, drainage systems and all other bodies or accumulations of water, surface or underground, natural or artificial, public or private, which are contained within, flow through, or border upon the state or any portion thereof. (Code 1982, § 13.28.020; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 1, 1994) Sec. 40.03.920. Abbreviations. The following abbreviations shall have the designated meanings: BOD Biochemical oxygen demand CFR Code of Federal Regulations PROOFS Page 928 of 977 COD Chemical oxygen demand CWA Clean Water Act l Liter mg Milligrams mg/l Milligrams per liter NPDES National Pollutant Discharge Elimination System POTW Publicly owned treatment works SIC Standard Industrial Classification SWDA Solid Waste Disposal Act, 42 USC 6901 et seq. USC United States Code TSS Total suspended solids (Code 1982, § 13.28.030; Ord. No. 1184, § 1, 1985) Sec. 40.03.930. Discharge prohibitions. A. No user shall contribute or cause to be contributed, directly or indirectly, any pollutant or wastewater which will cause pass-through or interfere with the operation or performance of the POTW. These general prohibitions apply to all such users of a POTW whether or not the user is subject to National Categorical Pretreatment Standards or any other national, state or local pretreatment standard or requirements. A user may not contribute the following substances to any POTW: 1. Any liquids, solids or gases which by reason of their nature or quantity are, or may be sufficient either alone or by interaction with other substances to cause fire or explosion or be injurious in any other way to the POTW or to the operation of the POTW including, but not limited to, waste streams with a closed cup flashpoint of less than 140 degrees Fahrenheit or 60 degrees centigrade Celsius using the test methods specified in 40 CFR 261.21. Prohibited materials include, but are not limited to, gasoline, kerosene, naphtha, benzene, toluene, xylene, ethers, alcohols, ketone, aldehydes, peroxides, chlorates, perchlorates, bromates, carbides, hydrides and sulfides and any other substances which constitutes a fire or explosion hazard; 2. Solid or viscous substances which may cause obstruction to the flow in a sewer or other interference with the operation of the wastewater treatment facilities. Prohibited materials include but are not limited to: fats, oils, grease, garbage with particles greater than one-half inch in any dimension, animal guts or tissues, paunch manure, bones, hair, hides or fleshings, entrails, whole blood, feathers, ashes, cinders, sand, spent lime, stone or marble dust, metal, glass, straw, shavings, grass clippings, rags, spent grains, spent hops, wastepaper, wood, plastics, paint, gas, tar, asphalt residues, residues from refining, or processing of fuel or lubricating oil, mud, or glass grinding or polishing wastes; 3. Unless authorized by the city engineer, any wastewater having a pH less than 6.03725.0 or greater than 9.0, or wastewater having any other corrosive property capable of causing damage or hazard to structures, equipment and/or personnel of the POTW; 372 Note change requested by city staff. PROOFS Page 929 of 977 4. Any wastewater containing toxic pollutants in sufficient quantity, which either singly or by interaction with other pollutants, injures or interferes with any wastewater treatment process, constitutes a hazard to humans or animals, creates a toxic effect in the receiving waters of the POTW, or exceeds the limitation set forth in a categorical pretreatment standard. A toxic pollutant shall include but not be limited to any pollutant identified pursuant to section 307(a) of the Act; 5. Any noxious or malodorous liquids, gases or solids which either singly or by interaction with other wastes are sufficient to create a public nuisance or hazard to life, or which create the presence of toxic gases, vapors or fumes within in the POTW in a quantity that may cause acute worker health and safety problems, or are sufficient to prevent entry into the sewers for maintenance and repair; 6. Any substance which may cause the POTW's effluent or any other product of the POTW such as residues, sludges or scums, to be unsuitable for reclamation and reuse or to interfere with the reclamation process. In no case shall a substance discharged to the POTW cause the POTW to be in noncompliance with sludge use or disposal criteria, guidelines or regulations developed under section 405 and section 503 373of the Act; any criteria, guidelines or regulations affecting sludge use or disposal developed pursuant to the Solid Waste Disposal Act, the Clean Air Act, the Toxic Substances Control Act, or state criteria applicable to the sludge management method being used; 7. Any substance which will cause the POTW to violate its NPDES and/or state disposal system permit or the receiving water quality standards; 8. Any wastewater with objectionable color not removed in the treatment process, such as but not limited to dye wastes and vegetable tanning solutions; 9. Any wastewater having a temperature that will cause the temperature of the wastewater plant influent to exceed 40 degrees centigrade (104 degrees Fahrenheit) or will inhibit biological activity of the wastewater treatment; 10. Any pollutants, including oxygen demanding pollutants (BOD, etc.) released at a flow rate and/or pollutant concentration which will cause interference to the POTW; 11. Any wastewater containing any radioactive wastes or isotopes of such half-life or concentration as may exceed established limits; 12. Any septic tank pumpings or material taken from cesspools, privies or other sewage treatment systems, unless approved by the city engineer374; 13. Any water or waste which may contain more than 25 parts per million, by weight, of fat, oil or grease; 14. Any petroleum oil, non-biodegradable cutting oil, or products of mineral oil origin in amounts that will cause interference or pass-through; 15. Any trucked or hauled pollutants, except as may be approved by the engineer and at discharge points as may be designated by the city. B. When it is determined that a user is contributing to the POTW, any of the above- enumerated substances in such amounts as to interfere with the operation of the POTW, then the engineer shall: 373 Note change requested by city staff. 374 Note change requested by city staff. PROOFS Page 930 of 977 1. Advise the user of the impact of the contribution on the POTW; and 2. Develop effluent limitation for such user to correct the interference with the POTW. C. Upon such notification, the user shall develop a pretreatment program and comply with the conditions set forth in this division, particularly sections 40.03.1110 through 40.03.1200, inclusive. (Code 1982, § 13.28.040; Ord. No. 1646, § 2, 8-15-2005) Sec. 40.03.940. Wastewater dischargers. No person shall discharge any wastewater to any natural outlet within the city or to the POTW except as authorized by the city. (Code 1982, § 13.28.050; Ord. No. 1184, § 1, 1985) Sec. 40.03.950. Permit required for connection or use. No authorized person shall uncover, make any connections with or opening into, use, alter or disturb any public sewer or appurtenance thereof without first obtaining a written permit from the city. (Code 1982, § 13.28.060; Ord. No. 1184, § 1, 1985) Sec. 40.03.960. Sand and grease traps. A. No person operating a filling station, garage, car wash or similar place having wash or grease racks shall discharge into the wastewater utility unless such place is provided with a sand and grease trap of a size and construction approved by the engineer. Each owner shall submit a detailed drawing and design criteria for the sand and grease trap. The operator of a restaurant or food preparation establishment discharging wastewater containing greater than 25 mg/l of oil and grease or that has a recurrence with grease building or blockage of sewer lines shall immediately install an approved grease trap. All sand and grease traps shall be properly maintained and serviced at the owner's expense. B. Records of maintenance and service for the sand and grease trap shall be made available to the city upon request by the engineer. (Code 1982, § 13.28.070; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 3, 1994) Sec. 40.03.970. Construction and materials standards. The size, slope, alignment, materials of construction of all sanitary sewers including building sewers, and the methods to be used in excavating, placing of the pipe, joining, testing and backfilling the trench, shall conform to the requirements of the building and plumbing code or other applicable rules and regulations of the city. In the absence of suitable code provisions or in amplification thereof, the materials and procedures set forth in appropriate specification of A.S.T.M. and W.P.C.F. Manual of Practice No. 9 shall apply. (Code 1982, § 13.28.080; Ord. No. 1184, § 1, 1985) Sec. 40.03.980. Use of old building sewers permitted when. Old building sewers may be used in connection with new buildings only when they are found, on examination and test by the engineer, to meet all requirements of this division. (Code 1982, § 13.28.090; Ord. No. 1184, § 1, 1985) Sec. 40.03.990. Building sewer--Location. Whenever possible, the building sewer shall be brought to the building at an elevation below the basement floor. In all buildings in which any building drain is too low to permit gravity flow to PROOFS Page 931 of 977 the public sewer, sanitary sewage carried by such building drain shall be lifted at the user's expense by an approved means and discharged to the building sewer. (Code 1982, § 13.28.100; Ord. No. 1184, § 1, 1985) Sec. 40.03.1000. Same--Excavations. All excavations for building sewer installation shall be adequately guarded with barricades and lighted so as to protect the public from hazard. Streets, sidewalks, parkways and other public property disturbed in the course of the work shall be restored in a manner satisfactory to the engineer. (Code 1982, § 13.28.110; Ord. No. 1184, § 1, 1985) Sec. 40.03.1010. Same--Connection to system; specifications. The connection of the building sewer into the public sewer shall conform to the requirements of the building and plumbing code and other applicable rules and regulations of the city, or the procedures set forth in appropriate specifications of the A.S.T.M. and the W.P.C.F. Manual of Practice No. 9. All such connections shall be made gastight and watertight, and verified by proper testing. Any deviation from the prescribed procedures and materials must be approved in writing by the city before installation. (Code 1982, § 13.28.120; Ord. No. 1184, § 1, 1985) Sec. 40.03.1020. Same--Inspection requirements. The applicant for the building sewer permit shall notify the city when the building sewer is ready for inspection and connection to the public sewer. The connection and testing shall be made under the supervision of the city's building department. (Code 1982, § 13.28.130; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 4, 1994) Sec. 40.03.1030. Connection to public sewer; when required. The owner of any house, building or other property used for human occupancy, employment or recreation, which is situated within the city and abuts on any street, alley or right-of-way in which there is located a public sanitary lateral sewer of the city within 100 feet of the property line, shall install suitable toilet facilities therein at the owner's own expense and connect such facilities directly with the proper sewer. The connection shall be made within 90 days after such owner is given official notice to make the connection by the city. Connection to the public sewer may also be required in accordance with the provisions of section 18.50.030.D 38.27.030.D.375 (Code 1982, § 13.28.140; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 5, 1994) Sec. 40.03.1040. Private sewage disposal facilities--restrictions. It is unlawful to construct or maintain any privy, privy vault, septic tank, cesspool or other facility intended or used for the disposal of sewage, unless such facility is approved by the Gallatin County health department. (Code 1982, § 13.28.150; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 6, 1994) Sec. 40.03.1050. Discharge of unpolluted waters to sanitary sewer prohibited unless approved. No person shall discharge or cause to be discharged any stormwater, surface water, groundwater, roof runoff or subsurface drainage into any sanitary sewer, except, however, that 375 This cite to section 18.50.030.D of the 1982 Code does not appear to be correct. Please provide the correct cite and we will update. Please delete the entire last sentence. PROOFS Page 932 of 977 industrial cooling water or unpolluted water may be discharged into a sanitary sewer upon approval of the engineer. (Code 1982, § 13.28.160; Ord. No. 1184, § 1, 1985) Sec. 40.03.1060. Connecting downspouts or drains to building sewers prohibited when. No person shall make connection of roof downspouts, foundation drains, areaway drains, or other sources of surface runoff or groundwater to a building sewer or building drain which in turn is connected directly or indirectly to a public sanitary sewer. (Code 1982, § 13.28.170; Ord. No. 1184, § 1, 1985) Sec. 40.03.1070. Special agreements for sewage treatment. No statement contained in this division shall be construed as preventing any special agreement or arrangement between the city and any industrial concern whereby an industrial waste of unusual strength or character may be accepted by the city for treatment. Such agreement shall not include the waiver of National Categorical Pretreatment Standards. (Code 1982, § 13.28.180; Ord. No. 1184, § 1, 1985) Sec. 40.03.1080. National Categorical Pretreatment Standards. Upon the promulgation of the National Categorical Pretreatment Standards for a particular industrial subcategory, the national standard, if more stringent than limitations imposed under this division for sources in that subcategory, shall immediately supersede the limitations imposed under this division. (Code 1982, § 13.28.190; Ord. No. 1184, § 1, 1985) Sec. 40.03.1090. State requirements. State requirements and limitations on discharges shall apply in any case where they are more stringent than national requirements and limitations or those in this division. (Code 1982, § 13.28.200; Ord. No. 1184, § 1, 1985) Sec. 40.03.1100. Excessive discharge. No user shall ever increase the use of process water or, in any way, attempt to dilute a discharge as a partial or complete substitute for adequate pretreatment to achieve compliance with the limitations contained in this division. (Code 1982, § 13.28.210; Ord. No. 1184, § 1, 1985) Sec. 40.03.1110. Accidental discharges; notice to employees; control of slug discharges. A. Each user with the potential to contribute prohibited substances as outlined in section 40.03.930, shall provide protection from accidental discharge of prohibited materials or other substances regulated by this division. Facilities to prevent accidental discharge of prohibited materials shall be provided and maintained at the user's own cost and expense. Detailed plans showing facilities and operating procedures to provide this protection shall be submitted to the engineer for review, and shall be approved by the engineer before construction of the facility. No user shall introduce industrial wastes into the system until accidental discharge procedures have been approved by the city. Review and approval of such plans and operating procedures shall not relieve the industrial user from the responsibility to modify the user's facility as necessary to meet the requirements of this division. In the case of an accidental discharge, it is the responsibility of the user to immediately telephone and notify the POTW treatment plant of the incident. The notification shall include location of discharge, type of waste, concentration and volume, and corrective actions. PROOFS Page 933 of 977 B. Within five days following an accidental discharge, the user shall submit to the engineer a detailed written report describing the cause of the discharge and the measures to be taken by the user to prevent similar future occurrences. Such notification shall not relieve the user of any expense, loss, damage, or other liability which may be incurred as a result of damage to the POTW, fish kills, or any other damage to person or property; nor shall such notification relieve the user of any civil or criminal penalties or other liability which may be imposed by this division or other applicable law. C. Each user shall permanently post on the user's bulletin board or other prominent place advising employees whom to call in the event of a dangerous discharge. Each user shall advise all employees who may cause or suffer such a dangerous discharge to occur of the emergency notification procedure. D. The city may evaluate, at any time, whether each significant industrial user needs a plan to control slug discharges. If the city decides that a slug control plan is needed, the plan shall contain, at a minimum, the following elements: 1. A description of discharge practices, including non-routine batch discharges; 2. A description of stored chemicals; 3. Procedures for immediately notifying the POTW treatment plant of slug discharges, including any discharge that would violate a prohibition in section 40.03.930; and 4. If necessary, procedures to prevent adverse impact from accidental spills, including inspection and maintenance of storage areas, handling and transfer of materials, loading and unloading operations, control of plant site runoff, worker training and the building of containment structures or equipment. (Code 1982, § 13.28.220; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 7, 1994) Sec. 40.03.1120. Wastewater classification survey. A. All industrial users shall complete and file with the engineer a wastewater classification survey containing the following information prior to discharging into the municipal wastewater system: name and facility address; type of services rendered and products produced; principal raw materials and catalysts used; plant operational characteristics; water use information; wastewater discharge information; wastewater quantities and constituents; wastewater pretreatment; a plot plan of sewers on the user's property showing sewer and pretreatment monitoring facility locations; details of systems to prevent and control the losses of materials through spills to the POTW; and nondischarge wastes and their disposal. B. All industrial users obtaining a building permit for initial construction or for building expansion or remodel shall complete and submit the survey to the engineer for review prior to approval of said building or remodel permit. C. All industrial users shall update the wastewater classification survey on file with the engineer whenever significant changes are made in the wastewater discharge. Significant changes include without limitation, an increase or decrease in wastewater volume, concentration of materials or substances or changes in types of wastes that will last for a period exceeding normal wastewater production variations. The engineer may request a new submittal of the wastewater classification survey as deemed necessary. (Code 1982, § 13.28.230; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 8, 1994) Sec. 40.03.1130. Industrial discharge permit. A. A significant industrial user shall obtain an industrial discharge permit renewable every three years at the initial cost of $100.00 and a renewal fee of $50.00 if the user: PROOFS Page 934 of 977 1. Is subject to National Categorical Pretreatment Standards; or 2. Is determined by the engineer to have significant impact, either singly or in combination with other contributing industrial users, on the quality of the wastewater treatment plant's effluent, sludge, scum or residues, or such that interference with the treatment process or facilities would result. B. Existing significant industrial users shall apply for a wastewater discharge permit within 60 days after the effective date of the ordinance codified in this division and proposed new significant industrial users shall apply at least 60 days prior to discharging into the wastewater utility. The application shall include a statement regarding whether or not applicable pretreatment standards are being met on a consistent basis, and, if not, what additional operation and maintenance and/or additional pretreatment is required to meet the standards. C. The engineer may at any time, and in accordance with 40 CFR 403.8(f)(6), determine that an industrial user meeting the criteria of section 40.03.910.A.37 is not a significant industrial user if the user has no reasonable potential for adversely affecting the POTW's operation or for violating any pretreatment standard or requirement. D. Industrial wastewater permits are subject to all provisions of this division and all other applicable reports, regulations, user charges and fees established by the city. Permits may contain, without limitation, the following: 1. A statement of duration; 2. A statement of nontransferability; 3. Effluent limits based on applicable general pretreatment standards, categorical pretreatment standards, local limits, and state and local law; 4. Limits on average and maximum rate and time of discharge or requirements for flow regulation and equalization; 5. Schedules for installation of pretreatment equipment to bring discharge into compliance with applicable regulations; 6. Requirements for installation and maintenance of inspection and sampling facilities; 7. Specifications for monitoring programs that include sampling locations; frequency of sampling; number, type and standards for tests; and reporting schedules; 8. Requirements for submission of technical reports, discharge reports and compliance progress report; 9. Requirements for maintaining and retaining records relating to wastewater discharge as specified by the city and affording city access thereto; 10. Requirements for notification of the city to the new introduction of wastewater constituents or any change in character of the wastewater constituents or average volume being introduced into the wastewater utility; 11. A statement of applicable civil and criminal penalties for violation of pretreatment standards and requirements, and any applicable compliance schedule. Such schedules may not extend the compliance date beyond applicable federal deadlines; and 12. Other conditions as deemed necessary by the engineer in order to enforce the provisions of this division. PROOFS Page 935 of 977 E. The engineer shall issue industrial discharge permits for a specified time period not to exceed two376three years. The industrial user shall apply for permit reissuance at least 30 days prior to the expiration of the user's existing permit. The terms and conditions for the permit may be subject to modification by the engineer during the term of the permit if limitations or requirements are modified, if necessary to meet requirements of the city's NPDES discharge permit to accommodate new or increased contributions of wastewater or changes in the nature of the wastewater, or if there is other good cause. Any changes or new conditions in the permit shall include a reasonable time schedule for compliance. F. An applicant for a permit shall pay the prescribed fees. G. A wastewater discharge permit may not be sold, traded, assigned, transferred or sublet. Any new significant industrial user must obtain a wastewater discharge permit regardless of whether a permit previously existed for the same premises. (Code 1982, § 13.28.240; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 9, 1994) Sec. 40.03.1140. Monitoring facilities. A. All significant industrial users shall provide and operate, at their expense, monitoring equipment and facilities sufficient to allow inspection, sampling and flow measurements of the private sewer or internal drainage system. B. The monitoring facility shall normally be situated outside of the building on the user's premises. If the industrial user's service line ties into an existing city manhole and such manhole allows for safe sampling and isolation of the industrial user's discharge, the engineer may allow said manhole to serve as the industrial user's monitoring facility. C. Any significant industrial user or user discharging prohibited substances or specific pollutants into the POTW shall install a monitoring facility for each separate discharge. Each separate monitoring facility shall meet requirements set forth by the engineer with safe and independent access for city personnel at all times. D. There shall be ample room in or near such monitoring manhole or facility to allow accurate sampling and preparation of samples for analysis. The industrial user shall maintain and operate its own monitoring facility and all sampling and measuring equipment at all times in a safe and proper operating condition at the industrial user's expense. E. Whether constructed on public or private property, the industrial user shall construct the sampling and monitoring equipment and facilities in accordance with monitoring requirements and all applicable local construction standards and specifications within 60 days following written notification by the engineer or before final building inspection approval. F. All industrial users shall provide safe access to sampling and monitoring sites and pretreatment facilities at all times for authorized city personnel. G. The city may inspect the facilities of any industrial user to determine whether the intent of this division and all applicable requirements are being met. Owners, employees or occupants of premises where wastewater is discharged shall allow city representatives or agents ready access at all reasonable times to all parts of the premises where wastewater is created or discharged, including industrial process areas, for the purpose of inspection, sampling, records examination and copying, or performance evaluation. Where an industrial user has security measures in force which require proper identification and clearance before entry into industrial user's premises, the industrial user shall make necessary arrangements with the security 376 Note change requested by city staff. PROOFS Page 936 of 977 personnel so that upon presentation of suitable identification, personnel authorized by the city, the state, or United States Environmental Protection Agency will be permitted to enter without delay for the purpose of performing their specific responsibilities under this article. (Code 1982, § 13.28.250; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 10, 1994) Sec. 40.03.1150. Sampling, analysis and inspection. A. All industrial users shall obtain the engineer's approval for all sampling and measuring equipment prior to its installation or use. All measuring, test and analyses and all sampling that the industrial user is required to make shall be done at the user's own expense. B. All industrial users shall make all measurements, tests, sampling and analyses required by this division in accordance with the techniques prescribed in 40 CFR 136 and amendments thereto. The engineer may direct an industrial user to deliver a split sample to a designated laboratory for analytical verification. C. The engineer shall determine the frequency of sampling, measuring and analyses and include them as conditions of the user's industrial discharge permit. The engineer may impose mass limitations on industrial users that use flow equalization to meet applicable standards or requirements or in other cases where imposition of mass limitations are appropriate. D. The city may place upon the industrial user's property such devices as are necessary to conduct sampling inspection, compliance monitoring and/or metering operations. E. Sampling and analysis may be performed by the city in lieu of the industrial user. Where the city itself collects all the information required for the report, the industrial user may be excused from submitting duplicate test data results. F. The city may randomly sample and analyze the effluent from industrial users and conduct surveillance activities in order to identify, independent of information supplied by the industrial users, occasional and continuing noncompliance with pretreatment standards. G. The city shall inspect and sample the effluent from each significant industrial user at least once a year. (Code 1982, § 13.28.260; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 11, 1994) Sec. 40.03.1160. Reporting and compliance requirements. A. All significant industrial users required to meet categorical pretreatment standards must submit the reports required in 40 CFR 403.12. All reports shall be based on sampling and analysis performed during the period covered by the report, and performed in accordance with the techniques described in 40 CFR part 136 and amendments thereto. All reports shall be signed by an authorized representative of the industrial user and certified by a qualified professional. All industrial users that have permits or that have the potential to discharge prohibited substances or specific pollutants that may cause a significant impact on the POTW shall submit to the engineer semiannual compliance reports at the times designated on the permit, and containing information and data as required by the permit, including but not limited to the following: 1. The name and address of the industrial user including the name of the operator and owners; 2. Any environmental control permits held by or for the industrial user; 3. A brief description of the nature and average rate of production by the industrial user; 4. A brief description of the Standard Industrial Classification of the operation carried out by the industrial user; PROOFS Page 937 of 977 5. Building plans or details that indicate all points of discharge to the city sewer system from the regulated process; 6. The measured average daily and maximum daily flow, in gallons per day, to the POTW from each of the following: a. Regulated process streams; and b. Other streams as necessary to allow use of the combined waste stream formula of 40 CFR 403.6(e). All flows shall be measured unless cost or feasibility justify allowing a verifiable estimate of the flow; 7. Nature and concentration of pollutants or materials prohibited in the discharge; 8. A statement indicating whether pretreatment standards are being met on a consistent basis, and, if not, whether additional operation and maintenance and/or additional pretreatment is required for the industrial user to meet the requirements; and 9. If additional pretreatment and/or operation and maintenance will be required to meet the requirements, the industrial user shall supply the shortest schedule by which the industrial user will provide such additional pretreatment and/or operation and maintenance. B. An industrial user is in significant noncompliance if its violation meets one or more of the following criteria: 1. Chronic violation of wastewater discharge limits, defined here as those in which 66 percent or more of all the measurements taken during a six-month period exceed (by any magnitude) the daily maximum limit or the average limit for the same pollutant parameter; 2. Technical review criteria (TRC) violation, defined here as those in which 33 percent or more of all the measurements for each pollutant parameter taken during a six- month period equal or exceed the product of the daily maximum limit or the average limit multiplied by the applicable TRC (TRC = 1.4 for BOD, TSS, fats, oil and grease, and 1.2 for all other pollutants except pH); 3. Any other violation of a pretreatment effluent limit (daily maximum or longer-term average) that the engineer determines has caused, alone or in combination with other discharges, interference or pass-through (including endangering the health of POTW personnel or the general public); 4. Any discharge of a pollutant that has caused imminent endangerment to human health, welfare or to the environment or has resulted in the POTW's exercise of its emergency authority to halt or prevent such a discharge; 5. Failure to meet, within 90 days after the schedule date, a compliance schedule milestone contained in a local control mechanism or enforcement order for starting construction, completing construction or attaining final compliance; 6. Failure to provide, within 30 days after the due date, required reports such as baseline monitoring reports, 90-day compliance reports, periodic self-monitoring reports, and reports on compliance with compliance schedules; 7. Failure to accurately report noncompliance; and 8. Any other violation or group of violations which the city determines will adversely affect the operation or implementation of the local pretreatment program. C. The city may publish an annual public notification, in the largest daily newspaper PROOFS Page 938 of 977 published in the municipality in which the POTW is located, of industrial users which, at any time during the previous 12 months, were in significant noncompliance with applicable pretreatment requirements. D. All industrial users shall notify the POTW, EPA Regional Waste Management Division Director, and state hazardous waste authorities in writing of any discharge into the POTW of a substance, which, if otherwise disposed of, would be a hazardous waste under 40 CFR part 261. Such notification shall be conducted in accordance with the provisions of 40 CFR 403.12(p). E. All industrial users shall promptly notify the POTW in advance of any substantial change in the volume or character of pollutants in their discharge, including the listed or characteristic hazardous wastes for which the industrial user has submitted initial notification under 40 CFR 403.12(p). F. Any industrial user submitting information to the city pursuant to this division may claim it to be confidential if it demonstrates to the satisfaction of the engineer that release of such information would divulge information processes, or methods of production entitled to protection as the user's trade secrets. 1. The user must assert such claim at the time of submission by stamping the words "confidential business information" on each page containing such information. If no such claim is made at the time of submission, the city may make information available to the public without further notice. 2. Such confidential business information shall not be made available to the public, but the city may use the information for determining compliance with this division. 3. Effluent or discharge data is not confidential. 4. The city may provide confidential business information to governmental agencies upon written request for uses directly related to enforcement of this division, but, the city shall not transmit the confidential information to any government agency until the city has received written approval from the user. G. No person shall make any false statement, representation or certification, knowing it to be false, in any application, record, plan, data or document filed or required to be maintained pursuant to this division. H. No person shall falsify, tamper with or knowingly render inaccurate any monitoring device or method required under this division. I. The engineer shall have access to records and wastewater testing facilities during normal working hours of the user. (Code 1982, § 13.28.270; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 12, 1994) Sec. 40.03.1170. Affirmative defenses. A. An industrial user shall have an affirmative defense in any action brought against it alleging a violation of the general and specific prohibitions established in section 40.03.930.A where the user can demonstrate that: 1. It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass-through or interference; and 2. A local limit designed to prevent pass-through and/or interference, as the case may be, was developed by the city for each pollutant in the industrial user's discharge that caused pass-through or interference, and the user was in compliance with each PROOFS Page 939 of 977 such local limit directly prior to and during the pass-through or interference; or 3. If a local limit designed to prevent pass-through and/or interference, as the case may be, has not been developed for the pollutant that caused the pass-through or interference, the industrial user's discharge directly prior to and during the pass- through or interference did not change substantially in nature or constituents from the industrial user's prior discharge activity when the POTW was regularly in compliance with the POTW's NPDES permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal. (Code 1982, § 13.28.280; Ord. No. 1390, § 14, 1994) Sec. 40.03.1180. Upsets. A. An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: 1. An upset occurred and the industrial user can identify the cause of the upset; 2. The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; 3. The industrial user has submitted the following information to the POTW treatment plant and the city within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days): a. A description of the indirect discharge and cause of noncompliance; b. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; c. Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance. B. In any enforcement proceeding, the industrial user seeking to establish an affirmative defense for the occurrence of an upset shall have the burden of proof. (Code 1982, § 13.28.290; Ord. No. 1390, § 15, 1994) Sec. 40.03.1190. Bypass. A. An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the provision of subsections B and C of this section. B. The industrial user shall provide notice of bypass, to the city, as follows: 1. If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the POTW treatment plant, if possible at least ten days before the date of the bypass. 2. An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the POTW treatment plant within 24 hours from the time the industrial user becomes aware of the bypass. A written submission shall also be provided within five days of the time the industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and PROOFS Page 940 of 977 steps taken or planned to reduce, eliminate and prevent reoccurrence of the bypass. The city may waive the written report on a case-by-case basis if the oral report has been received within 24 hours. C. Bypass is prohibited, and the city may take enforcement action against an industrial user for bypass, unless: 1. Bypass was unavoidable to prevent loss of life, personal injury or severe property damage; and 2. There were no feasible alternative to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventative maintenance; and 3. The industrial user submitted notices as required under subsection B of this section. D. The city may approve an anticipated bypass, after considering its adverse effects, if the city determines that it will meet the three conditions listed in subsection C of this section. (Code 1982, § 13.28.300; Ord. No. 1390, § 16, 1994) Sec. 40.03.1200. Suspension and revocation of permit. A. The engineer may suspend or revoke any industrial discharge permit and terminate the wastewater service if the permittee: 1. Discharges wastewater which presents imminent or substantial endangerment to the environment and/or public health, safety and welfare; 2. Discharges wastewater which causes interference with the POTW or causes the city to violate any conditions of its NPDES permit; 3. Violates any condition stated in the permit or provisions of this division; 4. Fails to report an accidental discharge of a toxic substance; 5. Increases the use of process water or attempts to dilute the discharge for the sole purpose of achieving compliance with any limitations; 6. Falsifies any report of the wastewater constituents and characteristics; 7. Tampers with, disrupts or damages monitoring and sampling equipment or facilities; 8. Refuses reasonable access to the industrial user's premises for the purpose of inspection or monitoring; or 9. Fails to pay fees or charges. B. In the event of any violation of this division, the engineer shall revoke the industrial discharge permit for the remainder of its term or suspend it for a shorter period based on the severity of the disqualification, its effect on public health, safety and welfare, and the time during which the disqualification can be remedied if at all. C. No user will be permitted to discharge into the POTW any wastewater which is in violation of this division. Any user may have their wastewater service suspended or terminated by the engineer. D. Any person notified of a revocation or suspension of such person's wastewater treatment service and/or the wastewater contribution permit shall immediately stop or eliminate PROOFS Page 941 of 977 the contribution. In the event of failure of the person to comply voluntarily with the suspension order, the city shall sever the sewer connection or take such steps as deemed necessary to prevent or minimize damage to the POTW system or endangerment to any individuals. The city shall reinstate the wastewater contribution permit and/or the wastewater treatment service upon proof of the elimination of the noncomplying discharge. A detailed written statement submitted by the user describing the causes of the harmful contribution and the measures taken to prevent any future occurrence shall be submitted to the engineer within 15 days of the date of occurrence. E. Any user, whose permit is revoked or suspended, may request a hearing before the city commission to show cause why the proposed enforcement action should not have been taken. 1. The city commission will cause the user to be notified of the time and place set for the hearing. Notice will be served personally or by registered or certified mail at least ten days prior to the hearing. 2. The city commission or its designated representative will conduct the hearing by accepting testimony and evidence relevant to the matter involved in the hearing. Testimony shall be taken under oath and transcribed so that it may be made available to any party at the hearing or the public. 3. The city commission will, within ten days after the hearing, issue its final determination to the user. F. The user shall pay all costs and expenses associated with any such suspension and restoration of service. (Code 1982, § 13.28.310; Ord. No. 1184, § 1, 1985; Ord. No. 1390, §§ 13, 17, 1994) Sec. 40.03.1210. Nuisance; injunctive relief available; liability. A. Any discharge into the POTW in violation of this division or any rule, regulation, limitation, permit condition or order in force pursuant thereto, is declared to be a nuisance. B. If any person discharges into the POTW in violation of this division or any rule, regulation, limitation, permit condition or order in force pursuant thereto, the city attorney may, in addition to any other remedies, commence an action for equitable or legal relief, or both, including a petition in a court of competent jurisdiction for a temporary restraining order, and preliminary and permanent injunctions to prohibit the continuation of any violation of this division. C. Any person who violates any provision of this division or any rule, regulation, limitation, permit condition or order in force pursuant thereto, shall be liable for any loss, damage or expense to the city or others arising out of, resulting from or occurring in connection with said violation, including but not limited to injury to or death of any person, damage to property, enforcement of this division, attorneys' fees or increased costs for managing effluent, sludge or operating POTW. D. Any person who discharges into the POTW in violation of any provision of this division or any rule, regulation, limitation, permit condition or order in force pursuant thereto, shall be liable for any expense arising out of, resulting from or occurring in connection with said discharge if the city is found to violate any condition of its NPDES permit, including but not limited to fines assessed against the city, enforcement of this division, attorney's fees, sampling or analytical testing. (Code 1982, § 13.28.320; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 13, 1994) PROOFS Page 942 of 977 Sec. 40.03.1220. Criminal penalties. Any person who purposely, knowingly or negligently violates any provision of this division, or any rule, regulation, limitation, permit condition or order in force pursuant thereto, shall, upon conviction, be guilty of a misdemeanor, punishable by a fine not to exceed $1,000.00 per violation per day or imprisonment for not more than six months, or both. (Code 1982, § 13.28.330; Ord. No. 1184, § 1, 1985; Ord. No. 1390, § 13, 1994; Ord. No. 1411, § 1, 1995) Sec. 40.03.1230. Civil penalties. Any person who violates any provision of this division, or any rule, regulation, limitation, permit condition or order in force pursuant thereto, shall be subject to a civil penalty in an amount of not less than $200.00 or more than $500.00 for each violation, and a separate violation shall be deemed committed on each day during or on which a violation occurs or continues. (Code 1982, § 13.28.340; Ord. No. 1390, § 18, 1994) Secs. 40.03.1240--40.03.1340. Reserved. DIVISION 4. SEWER SERVICE OUTSIDE CITY Sec. 40.03.1350. Applicability of division and plumbing code. Any person owning or leasing property outside the corporate limits of the city now connected with the system of sanitary sewers shall be subject to the provisions of this division. As a condition and a prerequisite for the continuing use of the sanitary sewerage system, the plumbing inspector may, upon demand, inspect the plumbing on such property and require the owner or occupant to comply with the latest plumbing code. The plumbing upon any property which is to be connected with the city sewerage system shall comply with the plumbing code. (Code 1982, § 13.32.010; Ord. No. 1081, § 2, 1981) Sec. 40.03.1360. Application for permission to connect. Application for permission to connect with the sanitary sewerage system shall be made in writing to the city manager. The owner or lessee of such property shall make application to connect as provided, obtain a plumbing permit from the plumbing inspector, and pay the inspection fee required by the plumbing code. (Code 1982, § 13.32.020; Ord. No. 1081, § 2, 1981) Sec. 40.03.1370. Extension of service; factors for consideration. A. The following factors will be considered by the city commission in determining whether or not to extend water or sewer service outside of the city limits of the city: 1. Orderly growth and development of the city; 2. Water and land pollution abatement or control; 3. Need of persons or industries requesting service as determined by the city commission; 4. Capacity of the utility system of the city to serve property outside of the city limits of the city; 5. Extension of water or sewer service facilities outside of the city limits will not be approved if the property to be served has been determined by an engineering analysis to be outside of the areas that the existing water system, sewer collection system and sewage treatment facilities are designated and constructed to serve. B. The city manager will be responsible for submitting information and PROOFS Page 943 of 977 recommendations pertaining to the foregoing factors. (Code 1982, § 13.32.030; Ord. No. 1081, § 2, 1981) Sec. 40.03.1380. Consent to annexation; design specifications applicable. A. Any person, firm or corporation requesting water and/or sewer service outside of the incorporated limits of the city shall be required, as a condition precedent to the extension of such service, to execute and deliver to the city a written consent of annexation of the property to be served by the water and/or sewer facilities. B. All extensions of water and/or sewer lines outside the city limits shall be constructed in accordance with the design and specifications approved by the city engineer prior to the installation of the water and/or sewer lines. (Code 1982, § 13.32.040; Ord. No. 1081, § 2, 1981) Sec. 40.03.1390. Sewer connection charge. A charge based on actual cost shall be made for each connection to any lateral of the city sewerage system to serve property located outside the city limits. The charge established by this section shall apply to each dwelling or building connected with a sewer lateral. (Code 1982, § 13.32.050; Ord. No. 1081, § 2, 1981) Sec. 40.03.1400. Line extensions; costs borne by property owners. The cost of water and/or sewer line extensions outside the city limits shall be borne by the owners of the property to be served, who shall also pay all water and sewer assessments and rates. (Code 1982, § 13.32.060; Ord. No. 1081, § 2, 1981) Sec. 40.03.1410. Rates, charges and rentals. The sanitary sewerage disposal rates, charges and rentals shall be charged by the city and paid monthly for all premises outside the city limits which are now or hereafter connected with the sewerage system of the city sanitary sewerage disposal, based upon the total consumption of water used during the months of November, December, January and February on the respective premises. The rate shall be computed in the same manner as for city residents, and where the character of the waste exceeds the limitations imposed by the ordinances of the city, the surcharges shall be based on a formula used by the city with the determination of the charge made by the office of the city engineer. (Code 1982, § 13.32.070; Ord. No. 1081, § 2, 1981) Secs. 40.03.1420--40.03.1540. Reserved. DIVISION 5. SEWAGE DISPOSAL RATES AND CHARGES Sec. 40.03.1550. Persons liable for sewerage rates, charges and rentals. The rates, charges and rentals for sewage disposal service provided by the sewerage system of the city shall be imposed upon the parties and properties which are connected thereto for sanitary sewerage disposal. (Code 1982, § 13.36.010; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1560. Operation and maintenance costs designated; determination. The city, or its city engineer, shall determine the total annual costs of operation and maintenance of the wastewater system which are necessary to maintain the capacity and performance, during the service life of the treatment works, for which such works were designed and constructed. The total annual cost of operation and maintenance shall include, but need not be PROOFS Page 944 of 977 limited to, labor, repairs, equipment replacement, maintenance, necessary modifications, power, sampling, laboratory tests, and a reasonable contingency fund. (Code 1982, § 13.36.020; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980 Ord. No. 1081, § 2, 1981) Sec. 40.03.1570. Wastewater contribution percentage; determination procedure. A. The city, or its city engineer, shall determine each user's average daily volume of wastewater which has been discharged to the wastewater system, which shall then be divided by the average daily volume of all wastewater discharged to the wastewater system, to determine each user's volume contribution percentage. The amount used as the total average daily volume of wastewater shall exclude infiltration and inflow. The city, or its city engineer, shall determine each user's average daily poundage of five-day, 20-degree centigrade bio-chemical oxygen demand (BOD) which has been discharged to the wastewater system, which shall then be divided by the average daily poundage of all five-day BOD discharged to the wastewater system to determine each user's BOD contribution percentage. B. The city, or its city engineer, shall determine each user's average suspended solids (SS) poundage which has been discharged to the wastewater system, which shall then be divided by the average daily poundage of all suspended solids discharged to the wastewater system, to determine the user's suspended solids contribution percentage. Each user's volume contribution percentage, BOD contribution percentage and suspended solids contribution percentage shall be multiplied by the annual operation and maintenance costs for wastewater treatment of the total volume flow, of the total five-day, 20-degree centrigrade Celsius BOD and of the suspended solids, respectively. (Code 1982, § 13.36.030; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1580. Determining a surcharge for users with excess BOD and SS. The city, or its city engineer, will determine the average suspended solids (SS) and biochemical oxygen demand (BOD) daily loadings for the average residential user. The city, or its city engineer, will assess a surcharge rate for all nonresidential users discharging wastes with BOD and SS strengths greater than the average residential user. Such users will be assessed a surcharge sufficient to cover the costs of treating such users' above-normal BOD and 250 ppm SS. The surcharge rate structure for such above-normal-strength waste discharges is attached on file in the office of the city clerk. (See Appendix A to the ordinance codified in this division.) (Code 1982, § 13.36.040; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1590. Determining each user's wastewater service charges. Each nonresidential user's wastewater treatment cost contribution as determined in sections 40.03.1570 and 40.03.1580 shall be added together to determine such user's annual wastewater service charge. Residential users may be considered to be one class of user, and an equitable service charge may be determined for each user based upon an estimate of the total wastewater contribution of this class of user. The governing body city commission manager may classify industrial, commercial and other nonresidential establishments are equivalent to the wastes from the average residential user with respect to volume, suspended solids, and BOD.377 Each user's wastewater treatment cost contribution will be assessed in accordance with the attached rate schedule which is on file in the office of the city clerk. (See Appendix A to the ordinance codified in this division.) 377 Please review the language of this section and notify us if any changes are required. Replace the word “commission” with “manager.” PROOFS Page 945 of 977 (Code 1982, § 13.36.050; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1600. Notification of wastewater treatment rate. Each user will be notified, at least annually, in conjunction with a regular bill, of the rate and that portion of the user charges which are attributable to wastewater treatment services. (Code 1982, § 13.36.060; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1610. Billing of charges; penalties for late payment. The city shall submit an annual statement to the user for the user's annual wastewater service charge, or 1/12 of the user's annual wastewater service charge may be included with the monthly water and/or wastewater utility billing. The city shall add a penalty of one and one-half percent per month if the payment is not received by the city within 15 days. Should any user fail to pay the user wastewater service charge and penalty within three months of the due date, the city may stop the wastewater service to the property. (Code 1982, § 13.36.070; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1620. Sewer connections;deferred payments authorized when. Pursuant to the provisions of MCA 7-3-4443378RCM 11-3302, it is provided that whenever any sewer connection shall be made voluntarily, or ordered to be made by the director of public service, and the person so voluntarily making such connection or making it pursuant to such order shall, within 30 days after such connection is completed, request in writing filed with the city clerk of the commission that the cost thereof be divided into not more than eight equal annual payments with interest on the deferred payments at not to exceed six percent per year, the director of finance shall make the appropriate entry on the director's books of account, and the assessment shall be certified and collected as are other assessments for street improvements. (Code 1982, § 13.36.080; Ord. No. 1081, § 2, 1981) Sec. 40.03.1630. Review of wastewater service charges. The city shall review the total annual cost of operation and maintenance, as well as each user's wastewater contribution percentage not less often than every two years, and will revise the system as necessary to ensure equity of the service charge system established herein and to ensure that sufficient funds are obtained to adequately operate and maintain the wastewater treatment works. If a significant user, such as an industry, has completed in-plant modifications which would change that user's wastewater contribution percentage, the user can present, at a regularly scheduled meeting of the governing body city commission, such factual information, and the city shall then determine if the user's wastewater contribution percentage is to be changed. The city shall notify the user of its findings as soon as possible. (Code 1982, § 13.36.090; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981) Sec. 40.03.1640. Payment of sewerage charge; status of debt. A. The sewerage charges for each premises shall be personal or corporate obligations of the same parties who are obligated for payment of city water bills for such premises, according to the ordinances and regulations respecting the city water utility. It is the duty of the water department of the city to prepare, issue and mail, as near as may be to the first day of each calendar month, a statement of the sewerage charge for each user of the sewerage utility. In all cases, the sewerage charges shall appear as a surcharge, separately stated, upon the water bill as rendered. Each such charge shall be due and payable at the time and place as the water bill on 378 Note state law cite update. Ok. PROOFS Page 946 of 977 which it is shown, and no payment shall be accepted by the city, or any of its officers or employees, of a water bill without concurrent payment of the sewerage charge; and all of the penalties, including the shutting off of the customer's water supply, shall be applied in each case of nonpayment of the sewerage charge in like manner as for nonpayment of the water charge. B. Each user of the sewerage utility shall be deemed to have contracted and agreed to pay the sewerage charges hereby imposed, and such charges may be collected by actions at law whenever the same are more than 30 days overdue and shall bear interest at the highest rate allowed by law for contract indebtedness from and after the 15th day of the month in which the charge becomes due and payable. C. To the full extent now or hereafter permitted by law, overdue sewerage charges shall constitute a lien upon, and enforceable against, the real estate constituting the premises which was the user of the sewerage utility for which the charges were imposed. No subsequent owner or occupant of any premises for which any sewerage charge is overdue shall be entitled to water or sewerage service until the overdue charge is paid, notwithstanding that such subsequent owner or occupant may not have been personally obligated thereof. (Code 1982, § 13.36.100; Ord. No. 1081, § 2, 1981) Sec. 40.03.1650. Extra-strength surcharge; computation of rates379. Customers contributing wastewater with strength concentration in excess of normal allowable limits of 250 milligrams per liter of BOD, 250 milligrams per liter of suspended solids, and five milligrams per liter of phosphorus shall be subject to an extra strength surcharge, in addition to the regular service charge computed in accordance with the current rate structure. Customers contributing waste water with strength concentration in excess of normal allowable limits of two hundred fifty parts per million of BOD and two hundred parts per million of suspended solids would be subject to an extra strength surcharge, in addition to the regular service charge computed in accord with the following formula: Extra Strength Surcharge. S = V, × 62.4 (0.095 (BOD) 250 - 0.115 (SS-200) Vs = Sewage volume in million cubic feet 62.4 = Pounds per cubic foot of water 0.095 = City Unit Charge for BOD in dollars per pound BOD = BOD strength index in parts per million by weight 250 = Allowed BOD strength in parts per million by weight 0.115 = City Unit charge for suspended solids in dollars per pound SS = Suspended solids strength index in parts per million by weight 200 = Suspended solids strength in parts per million by weight. (Code 1982, § 13.36.110; ; Ord. No. 1059, 1980; Ord. No. 1064, § 1, 1980; Ord. No. 1081, § 2, 1981; Ord. No. 1082, § 1, 1981) 379 Note change requested by city staff. PROOFS Page 947 of 977 ARTICLE 4. STORMWATER DIVISION 1. GENERALLY Sec. 40.04.010. Purpose and intent. A. The purpose and intent of this article is to: 1. Protect and enhance the water quality of Bozeman Creek, the East Gallatin River, water bodies, groundwater and wetlands in a manner pursuant to and consistent with the Clean Water Act of 1972 and the US EPA Phase II Stormwater Regulations. 2. Minimize non-stormwater discharges to storm drains and minimize pollutants in stormwater discharges. 3. Provide design, construction, operation, and maintenance criteria for permanent and temporary on-site stormwater management facilities to control stormwater runoff. 4. Establish legal authority to conduct inspections, surveillance, monitoring, and enforcement procedures necessary to ensure compliance with this article. 5. Establish legal authority to develop, implement, and enforce a program to reduce pollutants in stormwater runoff from construction activities. 6. Establish legal authority to develop, implement, and enforce a program to address stormwater runoff from new developments and redevelopment projects. 7. Provide an equitable distribution of cost for the program including but not limited to the fee schedule in accordance with "Rates for Storm Sewers" as hereafter established by commission resolution. B. Discharges into the municipal separate storm sewer system (MS4) may be subject to further regulation by the U.S. Environmental Protection Agency, Montana Department of Environmental Quality and local agencies owning and operating an MS4. Local agencies owning and operating portions of the MS4 in Bozeman include, but are not limited to, Gallatin County, Montana State University (Bozeman), and the Montana Department of Transportation. C. This article provides for the regulation of contributors or dischargers to the city's stormwater collection system through the development of a stormwater management program, including issuance and enforcement of private and public construction Stormwater Pollution Prevention Plans (SWPPP) to address construction site stormwater, enforcement of adopted Best Management Practice (BMP) construction standards, enforcement of post-construction stormwater BMP maintenance, and the detection and elimination of illicit discharges. This article authorizes monitoring and enforcement activities, requires user reporting, protects the state and receiving waters, and establishes penalties and remedies for violations of this article. (Ord. No. 1763, § 1(14.02.010), 3-22-2010) Sec. 40.04.020. Policy. It is the policy of the city to protect the health and welfare of its citizens and environment by monitoring, reducing, and regulating discharges that may cause pollution to the environment. (Ord. No. 1763, § 1(14.02.020), 3-22-2010) Sec. 40.04.030. Applicability. This article shall apply to all construction and maintenance activities for industrial, commercial, institutional, single household and multi-household residential developments, as well as subdivision projects with private access which may introduce pollutants into any private or PROOFS Page 948 of 977 public storm drain, or any body of water within the city's MS4 jurisdiction. Exceptions include activities that are contained entirely on Federal, State, or County lands and do not impact adjacent jurisdictions or MS4s. Additionally, permanent and temporary stormwater management controls and facilities, constructed as part of any activities listed in this article, which are located within the city's MS4 jurisdiction, are also subject to this article. (Ord. No. 1763, § 1(14.02.030), 3-22-2010) Sec. 40.04.040. Regulatory consistency. This article shall be construed to ensure consistency with the requirements of the Federal Clean Water Act and acts amendatory thereof or supplementary thereto, applicable implementing regulations, and the Montana Pollutant Discharge Elimination System Permit and any amendments, revisions or re-issuance thereof. Activities regulated by this article may be subject to further regulation by the specific public entity owning and operating an MS4. No permit or approval issued pursuant to this article shall relieve a person of the responsibility to secure permits and approvals required for activities regulated by any other applicable rule, code, act, permit or ordinance. (Ord. No. 1763, § 1(14.02.040), 3-22-2010) Sec. 40.04.050. City stormwater master plan. The city's Stormwater Master Plan provides additional policy, criteria and information including specifications and standards for the proper implementation of the requirements of this article and is incorporated by reference herein. Design and construction of stormwater facilities shall meet minimum water quality performance standards that are outlined in the city's design standards that are separate from the Stormwater Master Plan. (Ord. No. 1763, § 1(14.02.050), 3-22-2010) Sec. 40.04.060. Ultimate responsibility of discharger. The standards set forth in and promulgated pursuant to this article are minimum standards. This article does not intend nor imply that compliance by any person will ensure that there will be no contamination, pollution or unauthorized discharge of pollutants into waters of the state caused by that person. This article shall not create liability on the part of the city, or any city agent or employee for any damages that result from any discharger's reliance on this article or any administrative decision lawfully made pursuant to this article. (Ord. No. 1763, § 1(14.02.060), 3-22-2010) 14.02.070. Severability380. If any provision, clause, sentence, or paragraph of this ordinance or the application thereof to any person, establishment, or circumstance shall be held invalid, such invalidity shall not affect the other provisions or application of this ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are hereby declared to be severable. (Ord. No. 1763, § 1(14.02.070), 3-22-2010) Sec. 40.04.070. Definitions. A. The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 380 Deleted as covered in chapter 1. PROOFS Page 949 of 977 1. "Authorized enforcement agent" means the city engineer or any individual designated by the city engineer as an authorized enforcement agent. 2. "Best management practices" (BMPs) means schedule of activities, prohibition of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of state waters. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. 3. "Bozeman Non-stormwater disposal best management practices" means best management practices adopted by reference by this article for non-stormwater disposal. __ "BMC" means the Bozeman Municipal Code. __ "City" means the city of Bozeman, Montana. 4. "CFR" means the Code of Federal Regulations. 5. "Clean Water Act (CWA)" means the Federal Water Pollution Control Act enacted by Public Law 92-500 as amended by Public Laws 95-217, 95-576, 96-483, and 97-117; and 33 USC 1251 et seq. 6. "Comprehensive drainage plan" means a stormwater management plan that covers all current and anticipated development on a site greater than five acres and sites planned for phased development, including the impact on existing off-site infrastructure. 7. "Concentrated flow" means the parameters exceed the median concentration in Table 2 of the general permit for MS4s and the flow exceeds dry weather flow conditions. 8. "Construction activity" means any work that results in land disturbance of any nature. 9. "Control measure" means any best management practices or other methods used to prevent or reduce the discharge of pollutants to state waters. 10. "Design Standards" means the city Design Standards and Specifications Policy prepared and updated by the city engineering department. 11. "Development" means any construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any structure within the jurisdiction of the city as well as any manmade change or alteration to the landscape, including but not limited to mining, drilling, dredging, grading, paving, excavating and filling. __ "Director of Public Services" means the director of the Bozeman Public Services Department. 12. "Discharge" means any introduction or addition of any pollutant, stormwater, or any other substance into the municipal storm sewer system (MS4), waters of the state, or into waters of the United States by a person. 13. "Discharger" means any person who causes, allows, permits, or is otherwise responsible for a discharge, including, without limitation, any operator of a construction site or industrial facility. 14. "Firefighting water" means any water, and any substance or materials contained therein, used in an emergency to control or extinguish a fire. 15. "Illicit connection" means: PROOFS Page 950 of 977 a. Any drain or conveyance, whether on the surface or subsurface, which allows an illicit discharge to enter the MS4 including, but not limited to, any conveyances which allow any stormwater discharge including sewage, process wastewater and wash water to enter the storm drain system and any connections to the storm drain system from indoor drains and sinks, regardless of whether the drain or connection had been previously allowed, permitted or approved by a government agency; or b. Any drain or conveyance connected from a commercial or industrial land use to the MS4 which has not been documented in plans, maps or equivalent records and approved or permitted by the city. 16. "Illicit discharge" means any discharge to an MS4 that is not composed entirely of stormwater except the following: discharges not identified as significant contributors of pollutants listed in the general permit and allowable under the city's MS4 program. 17. "Impervious surface" means a surface which prevents or retards the penetration of water into the ground including, but not limited to, roofs, sidewalks, patios, driveways, parking lots, concrete and asphalt paving, gravel, compacted native surfaces and earthen materials, and oiled, macadam, or other surfaces which similarly impede the natural infiltration of stormwater. 18. "Maximum extent practicable" (MEP) means the technology-based discharge standard for municipal separate storm sewer systems to reduce pollutants in the stormwater discharges that was established by the Clean Water Act, §402(p). A discussion of MEP as it applies to MS4s is found in ARM 17.30.1111(5). 19. "MDEQ" means the Montana Department of Environmental Quality, a state regulating agency. 20. "MPDES permit" means the Montana Pollution Discharge Elimination System, an area-wide MPDES permit that is issued to a government agency or agencies for the discharge of pollutants from any point source into the waters of the state or United States. 21. "MS4" means the municipal separate storm sewer system. 22. "Municipal separate storm sewer system (or MS4)" means a conveyance or system of conveyance (including roads with drainage systems, municipal streets, catchbasins, curbs, gutters, ditches, manmade channels, or storm drains) owned or operated by a public body (created under state law) having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under state law such as sewer district, irrigation district, flood control district or drainage district, or similar entity that discharges to the waters of the United States and which are not part of a publicly owned treatment works (POTW) as defined in ARM title 17, chapter 30, subchapter 13. 23. "National Pollutant Discharge Elimination System Permit" (NPDES) means a permit issued by MDEQ, in compliance with the Federal Clean Water Act for the discharge of pollutants from any point source into the waters of the state or United States. 24. "NOI" means notice of intent. 25. "NOT" means notice of termination. 26. "Notice of intent (or NOI)" means submittal required by the state under the general PROOFS Page 951 of 977 permit for stormwater discharges associated with construction activity. 27. "Notice of termination (or NOT)" means submittal required by the state under the general permit for stormwater discharges associated with construction activity. The construction site has been finally stabilized and the operator desires to be relieved of responsibility on the general permit coverage period. 28. "Non-stormwater discharge" means any discharge that is not entirely composed of stormwater. 29. "Off-site stormwater" means any runoff crossing property lines that discharges to public right-of-way, property not included in the SWPPP, or property owned by others. 30. "Owner or operator" means a. A person who owns, leases, operates, controls, or supervises a point source; b. For the purpose of permitting "stormwater discharge associated with construction activity" means any "owner or operator" associated with a construction project, who is a person designated as an eligible signatory, who has operational control over the construction plans and specifications and has day-to-day operational control at the project to ensure compliance with the SWPPP. __ "Person" means any individual, firm, association, club, organization, corporation, partnership, business trust, company or other entity which is recognized by law as the subject of rights or duties. 31. "Plan" pertains to the stormwater master plan. 32. "Point source" means any discernible, confined, and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft, from which pollutants are or may be discharged. 33. "Pollutant" means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials [except those regulated under the Atomic Energy Act of 1954, as amended (42 USC 2011 et seq.)], heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water, and as otherwise defined in 40 CFR 122.2. 34. "Premises" means any building, lot, parcel of land, or portion of land whether improved or unimproved, including adjacent sidewalks and parking strips. 35. "Redevelopment" means a project that proposes to add, replace and/or alter impervious surfaces affecting an existing drainage system, other than routine maintenance, resurfacing, or repair. A project which meets the criteria of a major modification as defined in this section shall be considered a redevelopment. 36. "State waters" means any body of water, irrigation system, or drainage system, either surface or underground. 37. "Stormwater" means stormwater runoff, snow melt runoff, and surface runoff and drainage. 38. "Stormwater management" means the process of collection, conveyance, storage, treatment, and disposal of stormwater to ensure control of the magnitude and PROOFS Page 952 of 977 frequency of runoff and to minimize the hazards associated with flooding. Also includes implementing controls to reduce the discharge of pollutants including management practices, control techniques and systems, design and engineering methods. 39. "Stormwater design standards" means the design standards manual prepared by the city engineering office which provides design, performance, and review criteria for stormwater management practices. 40. "Stormwater management plan" means details of the on-site drainage system, structures, BMPs, concepts and techniques that will be used to control stormwater, including drawings, engineering calculations, computer analyses, maintenance and operations procedures, and all other supporting documentation for developments equal to or less than five acres. 41. "Stormwater pollution prevention plan" (SWPPP) means under the state's general permit for stormwater discharges associated with construction activities which characterizes the construction activity, potential sources of pollutants, and best management practices (BMPs) to help ensure pollutants do not reach surface waters. 42. "Stormwater system" means the physical facilities, both private and public, temporary or permanent, designed to treat, collect and transport stormwater which includes, but is not limited to: curbs, inlets, pipe, box culverts, swales, ditches, ponds, French drains, boulder pits, wattles, and silt fences. 43. "Total maximum daily load" (TMDL) means the sum of the individual waste load allocations for point sources and load allocations for both nonpoint sources and natural background sources established at a level necessary to achieve compliance with applicable surface water quality standards, as defined in Montana Code Annotated (MCA) 75-5-103. 44. "U.S. EPA" means the United States Environmental Protection Agency. 45. "Unified development ordinance" (UDO) means the entire chapter 38 of the Bozeman Municipal Code. 46. "Variance" means a modification of the requirements of this article. 47. "Watercourse" means any body of water including, but not limited to, lakes, ponds, rivers, streams, and bodies of water delineated by the city or state. 48. "Wetland" means an area that is inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support and that, under normal circumstances, does support a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas (also includes any area meeting the definition of wetland under chapter 38). (Ord. No. 1763, § 1(14.02.080), 3-22-2010) Secs. 40.04.080--40.04.190. Reserved. DIVISION 2. DISCHARGE PROHIBITIONS Sec. 40.04.200. Prohibitions of illicit discharges. A. It shall be unlawful to discharge or cause to be discharged into the MS4 any materials, including, but not limited to, pollutants or waters containing any pollutants that cause or contribute to a violation of applicable water quality standards or that could cause the city to be PROOFS Page 953 of 977 in violation of its MPDES. It shall be unlawful to store, handle or apply any pollutant in a manner that will cause exposure to rainfall or runoff and discharge to the MS4 and to state waters or waters of the United States. B. The commencement, conduct, or continuance of any discharge not composed entirely of stormwater to the MS4 is prohibited except as follows: 1. Discharges pursuant to an MPDES General Permit for MS4s permit and discharges due to firefighting activities. 2. Discharges from the following activities shall not be considered a source of pollutants to the MS4 and to state waters when properly managed, and shall not be considered illicit discharges unless determined by the city to be significant contributors of pollutants to the MS4, concentration of pollutants, proximity to a watercourse, or condition of a receiving water: a. Irrigation water; b. Irrigation ditch return flows; c. Landscape irrigation; d. Permitted diverted stream flows; e. Rising groundwaters; f. Rising natural floodwaters; g. Uncontaminated groundwater infiltration to separate storm sewers; h. Uncontaminated pumped groundwater; i. Discharges from potable water sources; j. Foundation drains; k. Air conditioning condensation; l. Springs; m. Water from crawl space pumps; n. Footing drains; o. Lawn watering (excluding over watering); p. Individual residential car washing; q. Individual residential dechlorinated swimming pool and hot tub discharges; r. Individual residential street washing; s. Fire hydrant flushing; t. Water line flushing; u. Flows from riparian habitats and wetlands; v. Uncontaminated water from irrigation system meter pits (and flows from emergency firefighting activities). Before applying the listed exceptions, the city shall make a determination on a case- by-case basis as to what is considered significant contributors of pollutants. In addition, the following non-stormwater discharges need not be prohibited from entering the MS4, provided approved control measures to minimize the impacts from the sources are implemented: Municipally owned dechlorinated swimming pool discharges; Municipal water tank draining and water from street washing (including PROOFS Page 954 of 977 sidewalks and medians) that is conducted by city staff or under contract with the city. 3. The city may exempt, in writing, other non-stormwater discharges which are not a significant source of pollutants to the city's MS4 or state waters. (Ord. No. 1763, § 1(14.04.010), 3-22-2010) Sec. 40.04.210. Prohibitions of illicit connections. A. The construction, use, maintenance or continued existence of illicit connections to the MS4 is prohibited. B. This prohibition expressly includes, without limitation, illicit connections made in the past regardless of whether the connection was permissible under law or practices applicable or prevailing at the time of connection. C. A person is in violation of this article if the person connects a line conveying sewage or other pollutant to the MS4, or allows an existing connection to continue. D. Illicit connections must be disconnected at the owner's expense. E. Any drain or conveyance that has not been documented in plans, maps or equivalent, and which may be connected to the storm sewer system, shall be located by the owner or occupant of that property upon receipt of written notice from the city. The notice will specify a reasonable time period to locate the drain or conveyance, that the drain or conveyance be identified as storm sewer, sanitary sewer or other, and that the outfall location or point of connection to the storm sewer system, sanitary sewer system or other discharge point be identified. Results of these investigations shall be documented and provided to the city engineering office. F. No person shall throw, deposit, leave, maintain, wash or rinse, keep any substance that may cause or contribute to pollution, or permit any such substance to be thrown, deposited, left, maintained, washed or rinsed, in or upon any public or private property, driveway, parking area, street, alley, sidewalk, catchbasin, manhole, ditch, channel, pond or any other component of the MS4, or state waters. Pollutants for this purpose include but are not limited to oil, solvents, anti-freeze, flammables, septage, poisonous or infectious substances, garbage, soaps, acids, bases and sediment. Wastes deposited in streets in a manner allowed by the city for the purpose of collection are exempted from this prohibition. (Ord. No. 1763, § 1(14.04.020), 3-22-2010) Sec. 40.04.220. Parking lots and similar structures. A. Persons owning or operating a paved parking lot, gas station pavement, paved private street, road, alley, or similar structure or persons conducting routine building wash downs, shall clean and maintain those structures or areas prior to discharging to a storm drain. B. Newly constructed and/or significantly remodeled covered parking garages or other covered structures shall be drained into a stormwater system in accordance with this article and other city ordinances or design standards. The owner and operator of a private stormwater collection system may be required to construct control structures to ensure the pre-treatment of such discharges prior to entry into the stormwater system. Existing structures are exempt unless deemed by the city to be a significant contributor of pollution to the stormwater system. (Ord. No. 1763, § 1(14.04.030), 3-22-2010) Sec. 40.04.230. Outdoor storage areas; commercial and industrial facilities. In outdoor areas, no person shall store grease, oil or other pollutants including restaurant grease bins in a manner that will or may result in such substances entering a stormwater system. PROOFS Page 955 of 977 In outdoor areas, no person shall store motor vehicles, machine parts, or other objects in a manner that may leak grease, oil, or other hazardous substances to a storm drain. To prevent the discharge of hazardous substances to the MS4, the city may require the installation of a spill containment system. Spill containment systems may consist of a system of dikes, walls, barriers, berms, or other devices as required. No person shall operate a spill containment system such that it allows incompatible liquids to mix and thereby create a hazardous condition. (Ord. No. 1763, § 1(14.04.040), 3-22-2010) Secs. 40.04.240--40.04.340. Reserved. DIVISION 3. CONSTRUCTION ACTIVITY Sec. 40.04.350. Required construction submittals. A. Any construction within the city's MS4 area shall comply with the provisions of this article, the city's Stormwater Master Plan, and the state's general permit for stormwater discharges associated with construction activity, MCA 75-5-101, Administrative Rules of Montana (ARM 17.30.1301 and ARM 17.30.601). The city will require, at a minimum, an executed copy of the state standard notice of intent (NOI) form for a stormwater discharge associated with construction activity under the General Permit and a Stormwater Pollution Prevention Plan (SWPPP), and a notice of termination (NOT) for construction sites either one acre or larger, for each phase of a construction site that exceeds one acre, or within 50 feet of any watercourse including irrigation and stormwater ditches for construction sites of less than one acre. B. Any person performing support activities related to a construction site (e.g., concrete or asphalt batch plants, equipments staging yards, material storage areas, etc.) within the city's MS4 area may require the following: NOI, SWPPP, NOT, similar to the requirements of construction activity provided that: 1. The support activity is not a commercial operation serving multiple unrelated construction projects and does not operate beyond the completion of the construction activity; 2. Appropriate controls and measures are identified in the SWPPP for discharge from support activity; 3. The support activity disturbs an area that is one acre or greater in size or is within 50 feet of any watercourse. C. In accordance with the state's reporting requirements the property owner shall also notify the city when there is any facility contact change, any spill or release, any finding that there has been non-compliance with the SWPPP. D. The city shall conduct all inspections of any construction activities requiring a SWPPP for all work within the MS4 area. E. The city will enforce the requirements under the state's general permit for stormwater discharges associated with construction activity in whole or in part determined by the city's enforcement agent. F. The owner shall retain completed and signed copies of the NOI, MDEQ's confirmation letter for receipt of the NOI package, and a SWPPP at the construction activity project site at all times during the coverage period. If the operator does not maintain a permanent office or building at the project site, copies of these documents shall be retained at the operator's office and shall be brought to the project site by the operator responsible for implementation of the SWPPP. G. Upon failure of the owner to take corrective actions on, or prior to, a required date PROOFS Page 956 of 977 on a reported or observed spill or the potential to release pollutants, including sediment, into the stormwater system, the city may either perform the corrective work or employ contractors to do the same. The owner shall reimburse the city for all expenditures pertaining to the corrective action. H. The city's enforcement agent has the authority to issue a stop work order pursuant to the remediation of a current violation or the potential of a violation of this article. I. Permission to enter. The city's enforcement agent, may conduct such investigations, examinations and site evaluations as they deem necessary to verify the information supplied or the execution of approved work. The submission of material for review shall constitute a grant of permission to enter the subject property. The grant of permission shall continue until all final actions required by the approval process have been completed including any follow up monitoring. The permission to enter extends to contractors working on the city's behalf. (Ord. No. 1763, § 1(14.06.010), 3-22-2010) Sec. 40.04.360. Stormwater management. A. Erosion control. Owner/operator shall: 1. Stabilize disturbed soil using recommended methods described in the city's Stormwater Master Plan; 2. Stabilize or cover soil stockpiles to prevent sediment runoff or blowing of dust or sediment from the site; 3. Prevent upland runoff that may erode disturbed slopes. B. Sediment control. Owner/operator shall: 1. Provide sediment controls in the form of settling basins or traps, temporary seeding, perimeter controls or other BMP described in the city's Stormwater Master Plan; 2. Where possible, design settling basins in a manner that allows adaption to provide long-term stormwater management; 3. Protect adjacent properties by the use of a vegetative buffer, silt fence, fiber roles, or other appropriate BMP as outlined in the city's Stormwater Master Plan. C. Construction site access. Owner/operator shall: 1. Limit the number of temporary access entrances onto a construction site; 2. Implement BMP's to ensure that sediment is not tracked onto public streets or alleys by construction vehicles, or washed into storm drains. D. Removal of temporary erosion control devices. Owner/operator shall remove all temporary erosion control devices upon establishing 70 percent or greater permanent ground cover on a lot. E. Emergency construction. Owner/operator shall clean up or contain sediment or debris resulting from the emergency construction activity in response to emergencies where services are being restored by a franchised utility company or contractor which are not subject to the requirements of a SWPPP. F. Construction waste management. Owner/operator shall at a minimum, control waste such as discarded building materials, concrete truck washout water, chemicals, litter, and sanitary waste at the construction site that may adversely impact adjoining property, public rights-of-way, or the stormwater collection system. Failure to maintain good housekeeping practices at the construction site is a violation of this article. G. Site inspection. PROOFS Page 957 of 977 1. An authorized enforcement agent shall establish the appropriate frequencies for inspection of construction stormwater pollution prevention measures or BMPs at all active construction sites. 2. The permittee or the permittee's agent will be required to perform regularly scheduled site inspections, at least every 14 calendar days, and within 24 hours after major storm events to ensure all BMPs have been constructed and are functioning properly. The purpose of such inspections will be to determine the overall effectiveness of the control plan and the need for additional control measures. The permittee shall document all inspections in writing and make inspection records available for review by the city. (Ord. No. 1763, § 1(14.06.020), 3-22-2010) Sec. 40.04.370. Construction activity on less than one acre. The city may apply this article in whole or in part for construction sites or lots that are less than one acre if it is determined that appropriate good housekeeping practices or best management practices are not being implemented to minimize impacts such as, but not limited to, erosion and sediment transport into public rights-of-way or any adjoining property that causes stormwater runoff that exceeds pre-construction activities. (Ord. No. 1763, § 1(14.06.030), 3-22-2010) Sec. 40.04.380. Construction activity on lots within a master plan development. Individual lot development, regardless of the lot size, or part of a master plan development, must follow good housekeeping practices and best management practices as outlined in the SWPPP for the development. (Ord. No. 1763, § 1(14.06.040), 3-22-2010) Secs. 40.04.390--40.04.490. Reserved. DIVISION 4. REGULATIONS AND REQUIREMENTS Sec. 40.04.500. Requirement to control and reduce stormwater pollutants. A. New development and redevelopment. The city's stormwater master plan, UDO, and Design Standards outline appropriate BMPs to control the volume, rate, and the potential of pollutants in stormwater runoff from new development and redevelopment projects as may be appropriate to minimize the generation, transport and discharge of pollutants. B. Responsibility to implement BMPs. Any person or entity engaged in activities or operations, or owning facilities or property which will or may result in pollutants entering stormwater, the MS4 or state waters, shall implement BMPs to the maximum extent practicable to provide protection from discharge into the MS4. BMPs shall be provided and maintained at the owner's or operator's expense. The city engineer, or designee, shall have the authority to require the installation, operation and/or maintenance of BMPs. The city engineer shall also have the authority to require the removal of temporary BMPs. (Ord. No. 1763, § 1(14.08.010), 3-22-2010) Sec. 40.04.510. Requirement to eliminate illicit discharges. The city may require, by written notice, that a person or entity responsible for an illicit discharge immediately, or by a specified date, discontinue the discharge and, if necessary, take measures to eliminate the source of the discharge to prevent the occurrence of future illicit discharges at violator's expense. (Ord. No. 1763, § 1(14.08.020), 3-22-2010) PROOFS Page 958 of 977 Sec. 40.04.520. Requirement to eliminate or secure approval for illicit connections. A person responsible for an illicit connection to the MS4 shall comply with the requirements of this article and shall eliminate or secure approval for the connection, whether the connection or discharges to it had been established or approved prior to or after the effective date of the ordinance from which this article is derived. An application seeking approval for the connection shall be submitted in writing to the city engineering department. (Ord. No. 1763, § 1(14.080.030), 3-22-2010) Sec. 40.04.530. Watercourse protection. Any person owning property through which a watercourse passes, or that person's lessee, shall keep and maintain all parts of the watercourse within that property reasonably free of trash, debris, excessive vegetation and other obstacles that would pollute, or significantly restrict the flow of water through the watercourse. The owner or lessee shall maintain any existing privately owned structures within or adjacent to that watercourse, so that those structures will not become a hazard to the use, function or physical integrity of the watercourse. The owner or lessee shall not remove healthy bank vegetation unless it is reasonably necessary for maintenance. The owner or lessee shall not remove vegetation if it will increase the vulnerability of the watercourse to erosion. The property owner shall maintain and stabilize the watercourse within the property owner's property boundaries in a manner that will protect against any erosion and degradation of the watercourse origination on or flowing through their property. Actions to protect a watercourse shall be coordinated and consistent with the city's watercourse setbacks as described in section 38.23.100. (Ord. No. 1763, § 1(14.080.040), 3-22-2010) Sec. 40.04.540. Requirement to remediate. A. Whenever the city finds that a discharge of pollutants, within the MS4 area, is taking place or has occurred which will result in or has resulted in pollution of stormwater, the MS4 or state waters, the city will notify the responsible person or entity in writing and give them a reasonable opportunity to remediate the affected property in accordance with the provisions of this article using a remediation plan pre-approved by the city engineer or designee. The city, or a designated contractor, may remediate the affected property at the owner's or responsible person's or entity's expense if the owner or responsible person does not take corrective actions within a reasonable time. Remediation plans shall be submitted to the city by the owner or responsible person and approved prior to the start of the remediation. The plan shall include, but may not be limited to, a remediation schedule, a course of action, a list of personnel performing remediation work and a list of equipment to be used. B. Whenever a violation of this article constitutes an emergency presenting imminent danger of serious injury to persons or property, the city may remediate the conditions giving rise to the violation through an available public agency or by contract or arrangement with private persons, and the cost of such abatement shall be paid by the owner of the property. (Ord. No. 1763, § 1(14.080.050), 3-22-2010) Sec. 40.04.550. Requirement to monitor and analyze. The city may require any person engaged in any activity or owning or operating any facility which may cause or contribute to stormwater pollution, illicit discharges or non-stormwater discharges to the MS4 or state waters to undertake, at the person's or owner's expense, monitoring and analysis by a state-certified laboratory pursuant to the provisions of this article, and furnish reports to the city engineering department as deemed necessary to determine compliance with this article. PROOFS Page 959 of 977 (Ord. No. 1763, § 1(14.080.060), 3-22-2010) Sec. 40.04.560. Notification of spills. Notwithstanding other requirements of law, as soon as any owner of or any person responsible for a facility or operation has information of any known or suspected release of pollutants discharging into stormwater, the MS4, or state waters from that facility, that person shall take all necessary steps to ensure the discovery, containment and cleanup of the release. In the event of a release of a pollutant, the person shall immediately notify emergency response officials of the occurrence via emergency dispatch services (911). In the event of a release not requiring an emergency response, that person shall notify the city by calling the city's engineering department within 24 hours, and providing a written notice thereto within five business days. If the discharge of prohibited materials emanates from a commercial or industrial establishment, the owner or responsible person must make and keep an onsite written record of the circumstances of the discharge and the actions taken to prevent its recurrence. These records shall be retained for not less than five years. (Ord. No. 1763, § 1(14.08.070), 3-22-2010) Sec. 40.04.570. Discharge pursuant to MPDES permit. The prohibition of discharges shall not apply to any discharge regulated under an MPDES permit issued and administered by DEQ, provided that the discharger is in full compliance with all requirements of the permit and other applicable laws or regulations. Compliance with an applicable MPDES permit governing discharges into the MS4 shall be considered compliance with this article. (Ord. No. 1763, § 1(14.080.080), 3-22-2010) Sec. 40.04.580. Noncompliance with MPDES permits. Any discharge that would constitute a violation of an MPDES permit and any amendments, revisions or re-issuance thereto, when either separately considered or when combined with other discharges, is prohibited. Liability for any such discharge shall be the responsibility of the person causing or responsible for the discharge, the permittee shall defend, indemnify and hold harmless the city in any administrative or judicial enforcement action against the permit holder relating to such discharge as provided by applicable rules of law. All persons in charge of a facility are to comply with applicable federal and state laws including facility personnel, training, training record maintenance, training records, maintenance of notification procedures, and implementation of notification requirements for spill response to ensure containment, cleanup, and immediate notification to the owner and operator of the MS4. Individuals responsible for spills are to comply with applicable state and federal notification requirements to ensure containment, clean up, and immediate notification to the owner and operator of the MS4. (Ord. No. 1763, § 1(14.080.090), 3-22-2010) Secs. 40.04.590--40.04.690. Reserved. DIVISION 5. STORMWATER MANAGEMENT PLANS AND COMPREHENSIVE DRAINAGE PLANS Sec. 40.04.700. Requirements. A. To control the quality, volume and rate of stormwater runoff to storm drains and prevent the deterioration of water quality, all new developments and redevelopment projects will be required to submit a stormwater management plan or a comprehensive drainage plan to the city engineering department for approval. The stormwater master plan and city Design Standards establish standards and guidelines for implementing BMPs and stormwater management is PROOFS Page 960 of 977 incorporated by reference and made part of this article. 1. A comprehensive drainage plan is required for all development larger than five acres. 2. A stormwater management plan is required for all developments equal to or less than five acres and are designated as a sketch plan or larger in accordance to chapter 38, article 19, or are within 50 feet of a watercourse. 3. Redevelopment projects will be required to submit stormwater management plans or operation and maintenance plans if they meet the criteria found in the stormwater master plan, Design Standards, chapter 38, article 19, or this article. 4. Stormwater management plans and comprehensive drainage plans shall: a. Prevent any off-site direct discharge of untreated stormwater and non- stormwater from development or redevelopment improvements. b. Minimize increased post-development discharge rates or volumes. c. Provide for the removal of total suspended solids or other constituents so as to meet the median concentration of the state general permit for MS4s generated from development or redevelopment runoff prior to any off-site discharge. d. Continue BMPs for appropriate periods of time. e. Protect groundwater from development runoff infiltration. f. Implement accepted BMPs to minimize impact of a development on existing offsite infrastructure and stormwater facilities. g. Address other stormwater issues identified by the city. h. Comply with section II of the city Design Standards, and chapter 38, article 23. 5. All drainage system reports, peak flow rates and runoff volume calculations, safety requirements, and grading plans shall be certified by a licensed professional authorized by the state to perform such functions. 6. The city reserves the right to amend, modify and/or add requirements to the stormwater master plan. (Ord. No. 1763, § 1(14.10.010), 3-22-2010) Sec. 40.04.710. Submission and review process. A. Stormwater management plans and comprehensive drainage plans shall be submitted as part of the development application process at the time a subdivision or a site development application is submitted. The plans shall be submitted to the city engineering department with a permit fee in an amount provided for in a fee schedule adopted by the city commission. No plan shall be approved if it: 1. Increases the peak level of stormwater runoff from impervious surfaces above a level from the site if left in its natural, undeveloped condition. 2. Does not address items required by the stormwater pollution prevention plan, comprehensive drainage plan or stormwater management plan deemed necessary by the city. B. No final plat, final site plan, or building permit shall be issued without an approved stormwater management plan or comprehensive drainage plan as required under this section. PROOFS Page 961 of 977 C. The city shall be notified of the commencement of any development covered by a comprehensive drainage plan and the owner or responsible person shall provide certification by a licensed professional authorized by the state that the development conforms with the previously approved plan. D. Major modifications to an approved comprehensive drainage plan or stormwater management plan shall be submitted to the city's engineering department for approval. E. Approval of a plan does not relieve the owner or responsible party from the duty to ensure the systems and their safety measures function as designed. F. Approved may be suspended or revoked at any time if conditions are not as stated or shown in the approved plan or implementation of the plan is not proceeding as approved. G. Approval of a stormwater management plan or a comprehensive drainage plan may be revoked or suspended if the project is not completed within two years after it is approved or development has ceased for a period of more than two years; however, a one-year extension may be granted upon a written request which provides the reason for the delay or cessation of development and specifies a timeframe for completion or commencement of development. Revocation or suspension shall be coordinated with the revocation or suspension of other relevant development approvals by the city. H. The owner will receive written notice the revocation of any plan setting forth the reasons for the revocation. The owner may appeal a revocation to the city board of appeals within ten business days from the effective date of the suspension or revocation. I. If a stormwater management plan or a comprehensive drainage plan is revoked, the owner shall submit a new plan for approval, with the requisite fee, prior to starting or continuing the planned project or development. J. If strict application of the requirements of this article would result in undue hardship, the owner may request in writing an engineering variance detailing the reason for the request and provide supporting documentation. The cost associated with implementing minimum BMPs will not be considered an undue hardship. (Ord. No. 1763, § 1(14.10.020), 3-22-2010) Sec. 40.04.720. Maintenance of stormwater facilities. A. Stormwater facilities shall be maintained by the owner or other responsible party in a condition so that the facilities will function as designed. B. Waste shall be disposed of from maintenance of facilities in accordance with applicable federal, state and local laws and regulations. C. The owner or other responsible party shall create and maintain records of installation and maintenance and repair for the life of the development and shall be made available to the engineering department upon request. D. Any failure to maintain facilities or to correct deficiencies at facilities within a reasonable time after receiving written notice from the enforcement agent may result in criminal or civil penalties. The city may perform corrective or maintenance work the owner or responsible person fails or refuses to perform within a reasonable time at the owner's expense. (Ord. No. 1763, § 1(14.10.030), 3-22-2010) PROOFS Page 962 of 977 Secs. 40.04.730--40.04.840. Reserved. DIVISION 6. INSPECTION AND ENFORCEMENT Sec. 40.04.850. Inspections. A. The owner or other responsible party shall conduct annual inspections of the facilities and shall maintain records of such inspections for the life of the development. B. Whenever necessary to make an inspection to enforce any of the provisions of this article, or whenever an authorized enforcement agent has reasonable cause to believe that there exists any condition which may constitute a violation of the provisions of this article in any building or upon any premises, the authorized enforcement agent may enter such building or premises at all reasonable times to inspect the same or perform any duty imposed upon the authorized enforcement agent by this article; provided that: 1. If such building or premises is occupied, the authorized enforcement agent first shall present proper credentials and request entry; and 2. If such building or premises is unoccupied, the authorized enforcement agent first shall make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. C. If permission is refused or denied, or if it is not possible to locate the owner or responsible person and no emergency exists, the authorized enforcement agent shall obtain a warrant before entering the premises. If an emergency exists presenting imminent danger of serious injury to persons or property, the authorized enforcement agent may immediately enter into any building or upon any premises within the jurisdiction of the city for purposes of inspection or abatement. D. The city may conduct routine inspections as deemed necessary to carry out the objectives of this article, including but not limited to, random sampling and/or sampling in areas with evidence of stormwater pollution, illicit discharges, or similar factors. E. Unreasonable delays in allowing the city access to a permitted facility is a violation of a stormwater discharge permit and of this article. (Ord. No. 1763, § 1(14.12.010), 3-22-2010) Sec. 40.04.860. Enforcement. Any deviation from what is declared in this article constitutes a violation. (Ord. No. 1763, § 1(14.12.020), 3-22-2010) Sec. 40.04.870. Sampling. With the consent of the owner or occupant or with authorization from a court of competent jurisdiction, any city enforcement agent may establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the city enforcement agent may take any samples deemed necessary to aid in the pursuit of the inquiry or to record the on-site activities, provided that owners or occupants shall be entitled to split samples. Samples shall be collected, stored and transported in conformance with accepted sampling and testing standards, including chain-of-custody. (Ord. No. 1763, § 1(14.12.030), 3-22-2010) Sec. 40.04.880. Testing and monitoring. A. Whenever the city engineer, or designee, determines that any person engaged in any activity or owning or operating any facility that may cause or contribute to an illicit discharge to PROOFS Page 963 of 977 the stormwater system, the city engineer, or designee, may, by written notice, order that such person undertake such monitoring activities and/or analysis and furnish such reports as the city engineer, or designee, may recommend. The written notice shall be served either in person or by certified or registered mail, return receipt requested, and shall set forth the basis for such order and shall describe the monitoring activities and/or analysis and reports required. The owner or operator shall perform the actions ordered by the city engineer and shall pay for all costs of these activities, analysis and reports. The recipient of such order shall undertake and provide the monitoring, analysis and reports within the timeframes set forth in the order. B. In the event the owner or operator of a facility fails to conduct the monitoring and/or analysis and furnish the reports required by the order in the timeframes set forth therein, the city may cause such monitoring and/or analysis to occur and assess all costs incurred, including reasonable administrative costs and attorney's fees, to the facility owner or operator. The city may pursue judicial action to enforce the order and recover all costs incurred. (Ord. No. 1763, § 1(14.12.040), 3-22-2010) Sec. 40.04.890. Notice of violation. A. Whenever the city finds that a person has violated a prohibition or failed to meet a requirement of this article, the city may order compliance by written notice of violation to the responsible person. The notice of violation shall contain: 1. The name and address of the alleged violator; 2. The address when available or a description of the building, structure or land upon which the violation is occurring, or has occurred; 3. A statement setting forth the facts which constitute the violation; 4. A description of the remedial measures necessary to restore compliance with this article and a time schedule for the completion of such remedial action; 5. A statement of the penalty or penalties that may be assessed against the person to whom the notice of violation is directed; 6. A statement that the determination of violation may be appealed to the city board of appeals by filing a written notice of appeal within ten calendar days of service of notice of violation; and 7. A statement specifying that, should the violator fail to restore compliance within the established time schedule, the work will be done by a designated governmental agency or a contractor and the expense thereof shall be charged to the violator. B. Such notice may require, without limitation: 1. Monitoring, analysis, and reporting; 2. Elimination of illicit connections or discharges; 3. That discharges, practices, or operations in violation of this article shall cease and desist; 4. Abatement or remediation of stormwater pollution or contamination hazards and the restoration of any affected property; 5. Payment of a civil fine to cover administrative and remediation costs; and 6. Implementation of source control or treatment BMPs. (Ord. No. 1763, § 1(14.12.050), 3-22-2010) PROOFS Page 964 of 977 Sec. 40.04.900. Continuing violations. Unless otherwise provided, a person shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this article is committed, continued or permitted by the person and shall be punishable accordingly, as herein provided. (Ord. No. 1763, § 1(14.12.060), 3-22-2010) Sec. 40.04.910. Violations constituting misdemeanors. The knowing violation of any provision of this article, or knowing failure to comply with any of the mandatory requirements of this article shall constitute a misdemeanor. (Ord. No. 1763, § 1(14.12.070), 3-22-2010) Sec. 40.04.920. Concealment. Causing, permitting, aiding, abetting or concealing a violation of any provision of this article shall constitute a violation of this article. (Ord. No. 1763, § 1(14.12.080), 3-22-2010) Sec. 40.04.930. Violations deemed a public nuisance. A. In addition to the penalties herein provided, any condition caused or permitted to exist in violation of any of the provisions of this article may be considered a threat to the public health, safety, welfare and the environment, may be declared and deemed a nuisance by the city engineer, or designee, and may be summarily abated and/or restored by the city and/or civil action taken to abate, enjoin or otherwise compel the cessation of such nuisance. B. The cost of such abatement and restoration shall be borne by the owner of the property and the cost thereof shall be a lien upon and against the property and such lien shall continue in existence until the same shall be paid. C. In any administrative or civil proceeding under this article in which the city prevails, the city may be awarded all costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit and reasonable attorney's fees. (Ord. No. 1763, § 1(14.12.090), 3-22-2010) Sec. 40.04.940. Civil actions. A. In addition to any other remedies provided in this article, any violation of this article may be enforced by civil action brought by the city. In any such action, the city may seek, and the court shall grant, as appropriate, any or all of the following remedies: 1. A temporary and/or permanent injunction. 2. Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this section. 3. Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation. 4. Compensatory damages for loss or destruction to water quality, wildlife, fish and aquatic life. Assessments under this section shall be paid to the city to be used exclusively for costs associated with monitoring and establishing stormwater discharge control systems and/or implementing or enforcing the provisions of this article. 5. Fines to the city for MPDES permit violations. (Ord. No. 1763, § 1(14.12.100), 3-22-2010) PROOFS Page 965 of 977 Sec. 40.04.950. Administrative enforcement powers. A. In addition to the other enforcement powers and remedies established by this article, any city enforcement agent has the authority to utilize the following administrative remedies: 1. Cease and desist orders. When a city enforcement agent finds that a discharge has taken place or is likely to take place in violation of this article, the agent may issue an order to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct that those persons not complying shall: a. Comply with the requirement; b. Comply with a time schedule for compliance, and/or c. Take appropriate remedial or preventive action to prevent the violation from recurring. 2. Notice to clean. Whenever a city enforcement agent finds any oil, earth dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land, or upon any parcel of land or grounds or in close proximity to any open drain or ditch channel, which may result in an increase in pollutants entering the storm drain or a non- stormwater discharge to the storm drain, such agent may give notice to remove and lawfully dispose of such material in any manner that the agent reasonably may provide. The recipient of such notice shall undertake the activities as described in the notice within the timeframes set forth therein. In the event the owner or operator of a facility fails to conduct the activities as described in the notice, the city engineer, or designee, may cause such required activities as described in the notice to be performed, and the cost thereof shall be assessed and invoiced to the owner of the property. If the invoice is not paid within 60 calendar days, a lien shall be placed upon and against the property. (Ord. No. 1763, § 1(14.12.110), 3-22-2010) Sec. 40.04.960. Nonexclusivity of remedies. Remedies under this article are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for herein shall be cumulative and not exclusive. (Ord. No. 1763, § 1(14.12.120), 3-22-2010) Sec. 40.04.970. Appeal. Any person notified of non-compliance with this article or required to perform monitoring, analysis, reporting and/or corrective action, who is aggrieved by the decision of the city enforcement agent, may appeal such decision in writing to the board of appeals within ten business days following the effective date of the decision or written notice. Upon receipt of such request, the city engineer shall request a report and recommendation from the city enforcement agent and shall set the matter for administrative hearing at the earliest practical date. At said hearing, the city engineer may hear additional evidence, and may revoke, affirm or modify the city enforcement agent's decision. Such decision shall be final. (Ord. No. 1763, § 1(14.12.130), 3-22-2010) Sec. 40.04.980. Disclaimer of liability. The degree of protection required by this article is considered reasonable for regulatory purposes and is based on scientific, engineering and other relevant technical considerations. The PROOFS Page 966 of 977 standards set forth herein are minimum standards and this article does not imply that compliance will ensure that there will be no unauthorized discharge of pollutants into the waters of the United States. This article shall not create liability on the part of the city, any agent or employee thereof for any damages that result from reliance on this article or any administrative decision lawfully made thereunder. (Ord. No. 1763, § 1(14.12.140), 3-22-2010) ARTICLE 5. LOCATION OF UTILITY POLES/CHANGE OF LOCATIONOVERHEAD ELECTRICAL LINES381 15.48.010. National electrical safety code applicable. Details of construction not specifically covered or made a part thereof shall be governed by the rules laid down in the National Electrical Safety Code, Handbook Series of the Bureau of Standards No. 3, and each subsequent modifications as may be endorsed by said Bureau of Standards. (Code 1982, § 15.48.010) 15.48.020 chapter provisions do not affect chapter 15.08. Nothing contained in this chapter shall be so construed as to repeal Chapter 15.08, or any part thereof. (Code 1982, § 15.48.020) Sec. 40.05.010. Location of poles and lines. A. Wherever possible, lines shall be erected in alleys. Lines shall be laid out, wherever possible, so as to follow one side of the street or alley so that the number of street crossings and corners shall be reduced to the minimum. B. No poles except ornamental light poles shall be erected or maintained on the following streets, except where necessary to maintain municipal lamps and service wires: 1. Main Street, between the east side of Wallace Avenue and the west side of Fifth Avenue; 2. Mendenhall Street between the east side of Wallace Avenue and the west side of Fifth Avenue; 3. Babcock Street between the east side of Wallace Avenue and the west side of Fifth Avenue. C. New pole locations shall be made under the direction of the city engineer and with the approval of the city commission. D. Where double-pole lines are necessary for light and power and for signal wires on one side of a street or alley, the construction shall be governed by the rules and specifications governing joint pole line construction. (Code 1982, § 15.48.030) Sec. 40.05.020. Change of pole locations; city rights reserved. The city expressly reserves the right to order and enforce the change of location of any and all poles or appliances erected or maintained whenever the city engineer orders any such change of 381 Note deletions in this article requested by city staff. PROOFS Page 967 of 977 location, and such change of location shall be made at the expense of the person, company or corporation owning or using any such pole or appliance. (Code 1982, § 15.48.040) 15.48.050. Electric wires--climbing space. Any person, copartnership or corporation owning or using any pole or appliance on which is run, placed, erected or maintained, in the city, any wire or cable used or to be used to conduct or carry electricity for the purpose of light, heat or power, shall provide and maintain an unobstructed climbing space adjacent to any such pole or appliance so that persons shall be able to ascend any such pole or appliance with reasonable safety and convenience up to and through the wires, connections, attachments and structures of any such pole or appliance; and in all such cases where any buck or reverse arm is used, or where special construction is used, there shall be provided and maintained an unobstructed climbing space not less than twenty-two inches square, omitting the area of any such pole or appliance. (Code 1982, § 15.48.050) 15.48.060. Electric wires--space between crossarms--exceptions--primary taps. __ At least one standard pole gain, or the equivalent of four feet, shall be left vacant between the nearest crossarm on which is placed or maintained any wire or cable conducting or carrying more than four hundred and forty volts of electricity, and any crossarm occupied by or used for wires or cables carrying four hundred and forty volts or less. __ The standard pole gain shall be spaced not less than twenty-four inches, center to center, except that one buck or reverse arm may be placed not more than 12 inches below any crossarm; provided, that this section shall be held not to apply to bridge construction; and further provided, that it shall be held not to apply to primary taps to transformers on poles; and provided further, that all such primary taps leading to transformers on poles shall be of double-braid, rubber-covered wre of at least twenty-two hundred volts' insulation. (Code 1982, § 15.48.060) 15.48.070. Electric wires--crossarm construction. All crossarms shall be made from clear, straight-grained wood, or standardized material. The cross-section of wood arms shall be not less than three and one-half by four and one-half inches. The pin spacing shall be, for six-pin arms, not less than 30-inch center for pole pin spacing, 14-inch side spacing, and five-inch and spacing; and four-pin arms not less than 30-inch center for pole pin spacing, 14-inch side spacing and five-inch and spacing. (Code 1982, § 15.48.070) 15.48.080. Electric wires--bridge arms. Bridge arms having the same pin spacing as the standard crossarm nd a cross-section of not less than four by six inches may be installed in alleys or at alley and street intersections wherever such construction may be proper to provide the necessary clearance for fire escapes and other obstructions which may overhang the alley. All such structures shall be provided with idle arm, or span wire, for use of workmen. (Code 1982, § 15.48.080) 15.48.090. Electric wires--double arms. Double arms, if of wood, shall be used at all line terminals, corners and curves where there is excessive strain. All double arms must be blocked and bolted in accordance with standard practice. All polces on which wires are permanently dead-ended shall be double-armed. PROOFS Page 968 of 977 (Code 1982, § 15.48.090) 15.48.100. Electric wires--guy wires and anchors. All guy wires, when attached to poles, stubs or other ungrounded supports, shall not reach within eight feet of the ground. Guy anchors may be installed, or guy wires may be attached to rocks or other grounded supports. (Code 1982, § 15.48.100) 15.48.110. Electric wires--guy insulation. Any guy wire attached to any pole or appliance on which is run, placed, erected or maintained any wire or cable used to conduct or carry electricity for the purpose of light, heat or power, or used jointly with telephone, telegraph or other signal wires, shall be permanently and effectively insulated at all times by the insertion of at least two strain-insulators. The upper of these insulators shall be inserted in the guy so as to be at least six feet in a horizontal line from the pole itself, and the second strain-insulator shall be inserted in the guy so as to be not less than eight feet in a vertical line from the surface. In short guys in which the two insulators are required, and which will be located at the same points or near each other, two insulators may be coupled in series and put into the guy together. All strain insulators shall be so constructed and maintained that the guy wire or guy cable holding the insulator in place shall interlock in case of failure or breakage thereof. The above shall not apply to railway electrification, where at least one insulator shall be inserted in each end of every auxiliary cross-span, and one in each auxiliary guy. (Code 1982, § 15.48.110) 15.48.120. Electric wires--guy clearance. Guy wires shall be attached to poles so as to interfere as little as possible with workmen climbing or working thereon. Every guy wire which passes either over or under an electric light or power wire other than those attached to the guyed pole shall be so placed and maintained as to provide a clearance of not less than three feet between the guy and any electric wire. (Code 1982, § 15.48.120) 15.48.130. Electric wires--arc lamps. No arc lamp shall be erected or maintained in the city on any pole or appliance unless such arc lamp be so constructed and maintained as to be lowered to within six feet from the surface; provided, that this section shall not include arc lamps used for ornamental streetlights attached to iron pedestals or any arc lamp attached to buildings, poles or other structures which do not carry wire other than those feeding the lamp. (Code 1982, § 15.48.130) 15.48.140. Electric wires--wire insulation. The standard insulation, wherever insulation is used, for any wire or cable run, placed or erected in the city and used to conduct or carry electricity for light, heat or power, for all voltage, shall have at least a triple-braided waterproof cover. (Code 1982, § 15.48.140) 15.48.150. Electric wires--voltage covered by chapter. All of the foregoing provisions of this chapter shall include current and voltage used for light, heat or power, not to exceed seventy-five hundred volts of electricity. (Code 1982, § 15.48.150) PROOFS Page 969 of 977 15.48.160. Electric wires--voltage used for street railways excepted. None of the provisions of sections 15.48.050 through 15.48.070, inclusive, of this chapter shall be held to apply to direct-current wire carrying nominally six hundred volts of electricity, and used for street-railway purposes; provided, however, that an unobstructed climbing space not less than twenty-six inches in a horizontal line shall at all times be provided and maintained. (Code 1982, § 15.48.160) 15.48.170. Signal wires--crossarms. All crossarms shall be made from clear, straight-grained wood, or standardized material. No wood crossarm shall be used having a cross-section of less than three and one-quarter by four and one-quarter inches, except where steel pins are used or where two-pin arms are used. The standard pin spacing shall be not less than 16 inches from center to center of pole pins. (Code 1982, § 15.48.170) 15.48.180. Signal wires--climbing space. __ Any person, company or corporation, owning or using any pole or appliance used exclusively for telephone, telegraph or other signal wires shall provide and maintain an unobstructed climbing space of not less than 16 inches. __ Whenever buck or reverse arms are used, an unobstructed climbing space shall be left adjacent to the pole or appliance at least twenty inches square, omitting the area of any such pole or appliance; any wire or cable attached to the pole in such buck-arm construction, not less than forty inches from the nearest crossarm, shall be held not to be an obstruction to the climbing space as herein provided. (Code 1982, § 15.48.180) 15.48.190. Signal wires--guy insulation. In all cases where guy wires pass over, under or between electric light, heat or power wires, they shall be permanently and effectively insulated at all times by the insertion of at least two strain-insulators. The upper of these insulators shall be inserted in the guy so as to be at least six feet in a horizontal direction from the pole itself, and the second strain-insulator shall be inserted in the guy so as to be not less than eight feet from the surface in a vertical line. In short guys in which the two insulators herein required would be located at the same point, or near each other, two insulators may be coupled in series and put into the guy together. Anchor guys for guying aerial cable leads shall be insulated from the messenger wires by being placed upon separate shims, or insulated as above specified. (Code 1982, § 15.48.190) 15.48.200. Signal wires--aerial cable-supports. All aerial cables having two hundred pairs of No. 19 B & S gauge copper wires, or four hundred pairs of No. 22 B & S gauge copper wires, shall be supported by through bolts at least five-eighths inch in diameter; at all railroad and high-tension crossings, grades, curves and corners, such cable shall be reinforced by a strap supported by a lag-screw or through bolts at least one-half inch in diameter, or other appliance of equal strength. (Code 1982, § 15.48.200) 15.48.210. Joint use--separation of wires. A separation of at least four feet, measured at the pole, shall be provided and maintained between any telephone, telegraph and other signal wires or cables, and electric light, heat or power wires carrying not to exceed four hundred and forty volts; provided, that when the telephone, PROOFS Page 970 of 977 telegraph or signal wires or cables are above the electric light, heat or power wires carrying a voltage in excess of four hundred and forty volts, the clearance shall be eight feet. Telephone, telegraph and other signal wires or cables shall preferably be run and maintained below electric light, heat and power wires or cable. In no case shall telephone, telegraph, or other signal wires smaller than No. 12 N.B.S. gauge copper wire, or No. 12 B.W.G. iron wire be run or maintained as lead wires above electric light, heat or power wires; provided, that this shall be held not to apply to telephone, telegraph or signal wires used exclusively to maintain electric light, heat and power line. (Code 1982, § 15.48.210) 15.48.220. Joint use--climbing space and crossarms. All telephone, telegraph or other signal wires placed on poles jointly used for electric light, heat and power wires shall have an unobstructed climbing space of not less than twenty-six inches. All telephone, telegraph or other signal wires placed on poles jointly used for light, heat or power wires shall be placed and maintained on crossarms, except that brackets may be maintained on one side of the pole not nearer than two feet below the lowest crossarm for the purpose of carrying duplex wires or cables to distribute telephone, telegraph or signal wires. (Code 1982, § 15.48.220) 15.48.230. Joint use--guy insulation. All joint construction for wires or cable of different and conflicting voltage, as outlined in section 15.48.220, shall be guyed in the same manner as specified for electric light, heat and power construction. (Code 1982, § 15.48.230) 15.48.240. Joint use--climbing space where lines not parallel. In all cases where there are two or more pole lines used for telephone, telegraph or other signal wires on the same side of any street, alley or public highway, provided such lines are not parallel on a horizontal plane, the crossarms shall have an unobstructed climbing space of not less than twenty-six inches. (Code 1982, § 15.48.240) 15.48.250. Construction--pole quality. All poles shall be of the best quality cedar or other standardized material, except poles carrying one telephone circuit for rural or farmers' use. No pole shall be maintained which has not sufficient strength to safely sustain itself when supporting wires are removed. (Code 1982, § 15.48.250) 15.48.260. Construction--side arms. When necessary to avoid obstruction, a side or offset arm may be used. In all such cases, a special arm of the same dimensions as the standard arm shall be used. This arm shall be bored for pins and bolts and installed with an angle-iron brace. Wherever a transformer is used on any such pole on which side-arm construction is used, an idle arm shall be provided. (Code 1982, § 15.48.260) 15.48.270. Construction--guy wire protection. Where guy wires installed on public highways are subject to mechanical injury, they shall be protected with a shield. This shield may consist of an iron pipe or a suitable wood shield, which may be clamped on the guy itself. The guy shield shall extend from the anchor rod up to a height of approximately seven feet. PROOFS Page 971 of 977 (Code 1982, § 15.48.270) 15.48.280. Construction--wire crossings. Where wires used for power, heat or light cross telephone, telegraph or signal wires, or where the abovementioned wires cross railroad tracks, the methods of future construction or betterments, and hereafter all future electrical construction in the city not herein provided for, shall conform to the national electrical code of the United States Bureau of Standards. This section shall not be held to conflict with any of the specific provisions of this chapter. (Code 1982, § 15.48.280) 15.48.290. Ground wires and cables run vertically--protection from damage. Any person, company or corporation owning or using any poles or appliances for light, heat or power, or poles used jointly for light, heat or power wires, and telephone, telegraph and other signal wires, on which are run any ground or vertical wires, shall cause all such wires, except railway auxiliary negative taps, to be encased in a channel iron conduit or metal casing from the ground to a point approximately seven feet above the ground, so as to protect any such wires from mechanical injury, the remaining portion to be wholly encased in a casing equal in durability and insulating efficiency to a wooden casing not less than one and one-fourth inches thick, except that grounds for four hundred and forty volts or less, and railway auxiliary negative taps shall be required to be encased down the pole to a point five feet below the lowest crossarm. All metal casing shall be permanently and effectively grounded; provided, that this section shall be held not to apply to wires or cables which lead from overhead to underground systems, except in case of joint construction; and further provided, that it shall not apply to high-tension lines. (Code 1982, § 15.48.290) 15.48.300. Generating and substation equipment--logbook--warning signs required when. __ In every generating and substation used for light, heat or power, there shall be kept a logbook or record showing the changes in the condition of operation, including the starting and stopping of electrical supply equipment, the name of each foreman or workman locally in charge of work, and all unusual occurrences and accidents. __ The logbook or record shall be signed by the person in charge before being relieved. He shall keep within sight an operating diagram or equivalent device, indicating whether electrical supply circuits are open or closed, and where work is being performed. On circuits carrying normally in excess of seventy-five hundred volts, the operator in charge shall place "Men at Work" tags upon switches controlling any circuits upon which men are known to be working, and it shall be his duty to enforce the safety rules, and permit only authorized persons to approach the equipment or lines. (Code 1982, § 15.48.300) 15.48.310. First-aid and protective devices required where. There shall be provided in conspicuous and suitable places in electrical stations and shops a suitable and sufficient supply of first-aid and protective devices, all of approved kinds and qualities; the kinds and number of such devices will depend on the requirements of each case, as may be from time to time prescribed by the State industrial Accident Board. All such prescribed devices shall be kept, when not in use, in their regular location and in good working order. (Code 1982, § 15.48.310) 15.48.320. Air-gap and oil-break switches--number of electricians--circuit--breaking devices. __ All circuits of four hundred and forty volts or more, where originating or terminating in any enclosure or building, or used for underground, shall be provided with air-gap switches or PROOFS Page 972 of 977 other approved devices; if any of the above circuits are of seven and one-half kilowatts or more capacity, they shall in addition be provided with an oil-break switch, or other approved device which will safely open the circuit under the load. __ There shall be no less than two experienced electricians employed on any work or maintenance to be performed on any electrical wires or equipment connected therewith carrying nominally six hundred volts or more; provided, however, that this shall not apply to the operation of electrical equipment, nor in cases of emergency. __ Direct-current feeders of two hundred and fifty volts or over shall be protected by approved circuit-breaking devices. (Code 1982, § 15.48.320) 15.48.330. Fuse requirements. All fuses shall be enclosed, or expulsion-type, or meet other approved National Electrical Code standards. (Code 1982, § 15.48.330) 15.48.340. Safety--heardroom, guarding passages, grounding wires. __ Where necessary, all forms of electrical apparatus shall be effectively grounded for the protection of persons. __ Wherever wires or conductors are installed within enclosures or buildings, in and about switchboards and other appliances where conductors are run, placed or erected, a clear headroom of six and one-half feet above the floor or surface must be maintained, or the wires shall be effectively guarded. All apparatus, passages, manways and other places where persons may enter into must be protected with efficient guards in accordance with standard practice; provided, this shall not be held to apply to electrical machinery and auxiliary devices carrying six hundred volts or less. __ When lines or wires carrying seventy-five hundred volts or more are disconnected from their source of power, for work to be performed thereon, said lines or wires shall be effectively grounded for the protection of workmen. (Code 1982, § 15.48.340) 15.48.350. Safety--manhole openings--surface watchman. __ The openings to outer air for any manhole used for light, heat or power shall be circular in shape, and shall not be less than twenty-four inches in diameter. __ The opening to outer air for any manhole used for telephone, telegraph or other signal wires shall be circular in shape, and shall be not less than twenty inches in diameter. __ Whenever persons are working in any manhole, whose opening to the outer air is less than three feet from the rail of any railway track, a watchman or attendant shall be stationed on the surface at the entrance of such manhole at all times while work is being performed therein. (Code 1982, § 15.48.350) 15.48.360. Fire and police signal wires on private poles. Any person, company or corporation owning or using any pole or appliance on which is run, placed, erected or maintained in the city, and any wire or cable used to conduct or carry electricity, shall at all times, when so requested by the authorities of the city, permit the city to occupy and use any pole or appliance for its fire and police signal wires without cost, provided wires are maintained by the city. (Code 1982, § 15.48.360) PROOFS Page 973 of 977 15.48.370. Liability limitations. Nothing contained in this chapter shall be deemed or construed to relieve any person, firm or corporation owning, operating or installing any electrical apparatus from liability for damage to any person injured by the construction, installation, insulation or operation of the same. (Code 1982, § 15.48.370) 15.48.380. Violation--penalty. __ Any person or persons, company or corporation violating any of the provisions of this chapter shall, upon conviction thereof, be punished by a fine in any sum not exceeding three hundred dollars, or by imprisonment in the city jail not to exceed 90 days, or by both such fine and imprisonment. __ Any court assessing a fine under the provisions of this chapter shall provide in its judgment that if the fine be not paid, the defendant or defendants shall serve one day's imprisonment for each two dollars of such fine unpaid; provided, that no violation of any of the provisions of this chapter shall be held to arise or exist by reason of the temporary location of any wire or pole or cable or crossarm while the same is being actually run, placed or erected. (Code 1982, § 15.48.380) ARTICLE 6. PUBLIC WORKS STANDARD SPECIFICATIONS Sec. 40.06.010. Adoption of the Montana Public Works Standard Specifications382. A. The current edition of the Montana Public Works Standard Specifications (MPWSS), including all accompanying appendices, amendments and modifications adopted by the Association of General Contractors, Montana Chapter of the American Public Works Association and the Civil Engineers Council of Montana, and as amended from time to time, are adopted by reference and incorporated in this article as if fully set forth herein, except as may be noted in this article, by future administrative order, or by any regulations not applicable to local government jurisdictions. B. One copy of the MPWSS shall be kept on file in the office of the city clerk of Commission of the city of Bozeman, one copy shall be kept on file in the office of the director of public services and one copy shall be kept on file in the office of the city engineer. C. Any amendments or addendums adopted by the Association of General Contractors, Montana Chapter of the American Public Works Association and the Civil Engineers Council of Montana which apply to local government jurisdictions, including the adoption of the latest edition of MPWSS, shall become effective upon execution of an administrative order of the city manager unless a different effective date is specified in the administrative order. D. A copy of the amendment notification and the corresponding new edition will be kept in the offices of the city clerk of Commission, the director of public service, and the city engineer. E. The Montana Public Works Standard Specifications as adopted in subsection A of this section are applicable within the city and to all projects in which383 falling under the supervision and jurisdiction of the city engineering office. (Ord. No. 1611, § 1, 4-5-2004) 382 Shouldn’t the following sections be in the public service title rather than the administration title? Yes. Change clerk of commission to city clerk. 383 Deleted “in which” in this section and following sections at request of city staff. PROOFS Page 974 of 977 Sec. 40.06.020. Adoption of City of Bozeman Modifications to the Montana Public Works Standard Specifications. A. The City of Bozeman Modifications to the MPWWS (modifications) as drafted by the city engineer are hereby adopted by reference and incorporated in this article as if fully set forth herein, except as may be noted in this article, by future administrative order, or by other amendment. B. One copy of the modifications shall be kept on file in the office of the city clerk of Commission of the city of Bozeman, one copy shall be kept on file in the office of the director of public service of the city, and one copy shall be kept on file in the office of the city engineer of the city. C. The modifications, as adopted, are applicable within the city and to all projects in which falling under the supervision and jurisdiction of the city engineering office. (Ord. No. 1611, § 2, 4-5-2004) Sec. 40.06.030. Adoption of the city design standards and specifications policy. A. The city design standards and specifications policy (policy) as drafted by the city engineer is hereby adopted by reference and incorporated in this article as if fully set forth herein, except as may be noted in this article, by future administrative order, or by other amendment. B. One copy of the policy shall be kept on file in the office of the city clerk of Commission of the city of Bozeman, one copy shall be kept on file in the office of the director of public service of the city and one copy shall be kept on file in the office of the city engineer of the city. C. The policy, as adopted, is applicable within the city and to all projects in which falling under the supervision and jurisdiction of the city engineering office. (Ord. No. 1611, § 3, 4-5-2004) Sec. 40.06.040. Amendment of the city modifications to the MPWWS and city design standards and specifications policy. A. Any amendments to the modifications and the policy shall first be drafted and reviewed by the city engineering division, with comment from the public. These amendments, when compiled and reviewed, shall be forwarded to the director of public service for review. The director of public service shall forward the proposed revisions to the city manager for approval as appropriate. B. The city manager may approve the changes and adopt them by issuance of an administrative order. The effective date of the changes shall be upon execution of the administrative order unless the order specifies otherwise. The city manager may also decline to adopt the changes by administrative order. In the event the city manager declines to adopt the changes by administrative order, the director of public service shall be notified of this decision and the proposal may be submitted through the ordinance amendment procedure. C. A copy of the amendment notification, when approved, will be kept in the office of the city clerk of commission, the director of public service, and the city engineer. A copy of the revised modifications or policy shall accompany this notification. D. The modifications and the design standards and specifications policy, as amended, are applicable within the city and to all projects in which falling under the supervision and jurisdiction of the city engineering office. (Ord. No. 1611, § 4, 4-5-2004) PROOFS Page 975 of 977 PROOFS Page 976 of 977 Chapter 41 RESERVED PROOFS Page 977 of 977 Chapter 42 WATERWAYS* *State law reference—Floodplain and floodway management, MCA 76-5-101 et seq. ARTICLE 1. IN GENERAL ARTICLE 2. BOZEMAN CREEK Sec. 42.02.010. Channel to be kept free from obstructions. The channel of Bozeman Creek, throughout its course within the corporate limits of the city, shall be preserved and kept at a minimum width of 12 feet in the clear, and kept free of all obstruction unless and until it shall be otherwise ordered or permitted by the city commission by ordinance or resolution duly adopted. (Code 1982, § 9.68.010) Sec. 42.02.020. Narrowing, turning or obstructing channel prohibited; exception. Any person, firm, corporation or association who, directly or indirectly, or by any means whatever or at all confines Bozeman Creek, in any part of its course through the corporate limits of the city, to a narrower channel than is prescribed in section 42.02.010; or who alters, changes or turns the same from its natural channel, or alters its course at any point within the corporate limits of the city, except in pursuance of and in accordance with an ordinance or resolution of the city commission duly passed and adopted; or who builds, throws, deposits or, in any manner or at all, places any obstruction in the channel of the creek within the corporate limits of the city, shall be deemed guilty of a violation of this article. (Code 1982, § 9.68.020) Sec. 42.02.030. Dumping items into channel or polluting creek prohibited. No person, firm, corporation or association, nor any employee or agent of any person, firm, corporation or association, shall throw, conduct, convey or deposit, or cause to be thrown, conducted, conveyed or deposited into the channel of Bozeman Creek in its course through the corporate limits of the city, or any part thereof, any paper, offal, rubbish, rags, filth, manure, hay, straw, tin cans, hides, dead animals, or anything whatever causing or tending to cause an obstruction or pollution of Bozeman Creek within the corporate limits of the city. (Code 1982, § 9.68.030) 9.68.040. Violation--penalty.384 Any person, firm, corporation or association or employee or agent thereof who violates any provision of this chapter shall be guilty of a misdemeanor. (Code 1982, § 9.68.040 384 This section is covered by the general penalty. Delete. PROOFS