HomeMy WebLinkAboutPublic Hearing and Consideration of Provisional Adoption of Ordinance 1816, Codifying Municipal CodeProvisional Adoption Ordinance 1816 September 19, 2011 Page 1 of 6
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission FROM: Greg Sullivan, City Attorney
Stacy Ulmen, City Clerk
SUBJECT: Provisional Adoption of Ordinance 1816 codifying the Bozeman Municipal Code.
MEETING DATE: September 19, 2011
AGENDA ITEM TYPE: Action.
RECOMMENDATION: Provisionally adopt Ordinance 1816 codifying the Bozeman
Municipal Code as set out in the August 2011 Final Proof.
BACKGROUND:
The purpose of the action tonight is to provisionally adopt Ordinance 1816 which adopts
the August 2011 Final Proof of the Bozeman Municipal Code.
Introduction:
Over the past two and half years a team of city staff have been working to “codify” the Bozeman
Municipal Code (BMC). On August 22, 2011, you conducted a work session to review the final codification proof and discuss with the staff the comprehensive process undertaken to date and
the scope of the changes to the code. At that work session you did not make any changes to the
draft.
After both readings of the codifying ordinance and after the 30-day effective period, the BMC will be available electronically on the City’s website through an ongoing contract with Municipal
Code Corporation (“MCC”), the City’s codification consultant.
For a preview of what the BMC will look like when published online please visit the City of
Billings website and click on “City Code” or go to: http://library.MCC.com/index.aspx?clientID=10441&stateID=26&statename=Montana&Custom
Banner=10441.jpg&ImageClass=L&cl=10441. Providing the BMC in searchable format through
MCC’s website will not only assist the city staff in its day-to-day operations but, more
importantly, will make the BMC readily accessible by the citizens of Bozeman. In addition, the
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City will have a limited number of the new BMC printed for distribution to locations such as
City Hall, the Library, the Stiff Building, etc.
Attachments for provisional adoption:
Attached to this memo you will find several items. First, you will find Ordinance 1816 adopting
the August 2011 codification draft as the Bozeman Municipal Code. In addition, you are
receiving a compact disc that includes Attachment A to Ordinance 1816 – the codification proof
that will become the codified Bozeman Municipal Code. For the public, this Attachment A, along with all other documents on the compact disc are available on the City’s website via a hyperlink on this meeting’s agenda.
In addition to the above, we also provide on the compact disc other documents to assist you in
your review of Attachment A that details the extent of the changes to the code by listing the staff responses to Municipal Code Corporation’s edits and additional staff comments and changes.
These include:
1. A sample of a final published chapter (Chapter 38, the Unified Development Code
(UDC) (formerly known as Title 18, the “UDO”);
2. The initial July 2009 Draft of the Bozeman Municipal Code; 3. Staff comments on the 2009 draft;
4. Staff comments on the December 2010 draft; and
5. Staff comments on the May 2011 draft.
Rather than list in this memorandum the changes to the code, we provide the above comment sheets.
Our codification process:
In general, a codification is a process to include all ordinances adopted since the last codification directly into the text of the official code. A codification process also provides an opportunity to
review the code for compliance with changes in state and federal law, changes in administrative
processes, and to make corrections in style.
The process the city staff undertook in this current codification is somewhat greater in scope than what the City has previously undertaken. To understand the extent of staff’s review of the BMC
it is important to first understand the steps we undertook.
On March 23, 2009, the City Commission authorized the City Manager to sign an agreement
with Municipal Code Corporation (MCC) for a codification of the BMC. At that time the City agreed to pay MCC $16,140 for legal review and editorial services1. The City Clerk and City
Manager recognized the importance of doing so at that time because a codification of adopted
ordinances had not taken place since November of 2001.2
1 Please see the fiscal effects statement below for more details on the total cost of this project and ongoing maintenance fees to MCC. 2 During the time period between the 2001 codification and this process out of the over 250 ordinances adopted by the City approximately 125
ordinances needed to be codified.
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After the 2001 codification, the most recent iteration of the BMC appears to have been an
internal city staff effort in 2005 to codify ordinances adopted since 2001.3
Unfortunately, neither the 2005 or 2001 codifications of the BMC undertook a comprehensive review of the entire BMC. In fact, at the time of beginning this codification process in 2009, staff immediately recognized that not only had ordinances adopted since 2005 not been included in a
published version of the code but the BMC had not been updated since adoption of the City
Charter. Moreover, it became clear the BMC had not been adjusted to changes in city
administrative structure over the past decade. Quite simply, we realized the BMC needed a comprehensive and detailed review.
As such, the scope of this codification includes:
• Insertion of all ordinances adopted since 2001;
• Evaluation of the BMC for compliance with federal and state law and inclusions of corresponding edits;
• Changes to ensure conformance with the Bozeman City Charter;
• Adjustments related to changes in the City’s administrative structure;
• A reorganization to an alphabetical structure (see additional discussion below); and
• Deletion of provisions either addressed in state law or no longer applicable to city
operations.
The first step in the codification process was to provide MCC with a copy of the previously
codified municipal code. At that time, the City Clerk also provided MCC with access to all
adopted city ordinances. The result of MCC’s initial work was the attached 2009 Codification
Draft. As you can see from that draft, the purposes were to insert all previously adopted ordnances and for MCC to ask questions of the City regarding hundreds of code provisions. The
2009 Draft was not an edited version of the BMC – it simply inserted the codified ordinances not
previously included. This draft formed the basis for all subsequent work by City staff.
During the year following receipt of the 2009 Draft, the City Attorney, City Clerk, and dozens of City staff reviewed each footnote in the 2009 Draft along with every section of the BMC and
provided specific detailed comments and responses to MCC. These comments were sent to MCC
in June of 2010.
During the review of the 2009 Draft the staff realized a two-step process to codification was needed: “Phase I” would include the scope as identified above and “Phase II” would include
future substantive amendments to the BMC recognized during the review of Phase I.
The staff responses to the footnotes and other city comments were addressed by MCC in a
second draft provided at the end of 2010. Again, the staff reviewed MCC’s draft during the early part of this year and sent additional comments back to MCC at the end of March.
At the end of this past April, MCC provided a third draft of the BMC for City review. We again
returned a set of comments on the April draft to MCC at the end of June.
3 MCC reviewed all ordinances back to the 2001 codification to ensure their inclusion in the BMC.
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Finally, on July 28, 2011 we received the 2011 Final Proof. After addressing a few minor issues,
it is this version we bring before you for consideration and adoption. In total, MCC provided four
separate drafts for city review. Reorganization of the Code:
As you will see from comparing the Table of Contents in Attachment A with the current BMC
structure (please refer to the 2009 Draft), Attachment A adopts a vastly different structure. We decided to request MCC adjust the organization of the BMC to one based on an alphabetical
structure rather than the traditional title-chapter structure for several reasons. First, the BMC had
not been codified for a decade and had changed significantly in the interim. As such, we felt the
risk of confusion to the public (except for the Title 18 (the UDO)) was minimal. Second, and
most importantly, based in part on input from MCC, we felt that because the new BMC would be a web-based application in a searchable format the public’s accessibility would be enhanced by
having the BMC structured alphabetically. In doing so, we increased the number of levels in the
highest level of the outline significantly which we believe will allow the public better access to
the substantive provisions of the BMC. For example, where before the BMC had 18 “titles” the
proposed structure has 42 “chapters.”
We recognize the difficulty this new structure may pose for those already familiar with the BMC,
especially those who interact with the UDO4
. To assist with this transition MCC will provide a
table that provides cross referencing from a former code section to the new code section.
Examples of the scope of changes:
As you review Attachment A we provide the following as examples of the changes you will find:
• The last ordinance to be included in Attachment A is ordinance 1807 (Commission Rules of Procedure) (included in as chapter 2, article 2, beginning on pg. 29) - ordinances adopted after Ordinance 1807 (effective July 6, 2011) including recent amendments to
the UDO, are not included.5
• In addition to the overall restructuring of the BMC many sections have been reorganized.
For example, all provisions related to alcohol licensing are now located in chapter 4
where previously those provisions were located in title 5 (business licensing) and title 9
(alcohol waivers and permitting).
These will be included in the first quarterly supplement from
MCC. Please recall that during the work session we demonstrated how adopted but not
yet codified ordinances will be placed on MCC’s website.
• Numerous changes have been included to ensure the code is gender neutral.
• Many outdated provision are proposed to be deleted entirely. For example:
4 The popular name for current Title 18 is the Unified Development Ordinances, the “UDO.” With the transition to new Chapter 38, we will
begin referring to the combined provisions related to subdivision and zoning as the “Unified Development Code,” or the “UDC” because an ordinance is a legislative enactment, similar to a bill, as a code is a “complete system of positive law carefully arranged and officially promulgated.” Black’s Law Dictionary (7th Ed.). 5 Ordinance 1802 (adopting the Residential Emphasis Mixed Use zoning district is also not included in Attachment A but will be included in the
first supplement later this fall.
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o The City no longer has a City-county Planning Board (pg. 656
o Provisions adopted in the wake of CI75 via Ordinance 1482 are being deleted due to the Supreme Court’s decision in Marshall v. State ex rel. Cooney (1999) holding CI75 unconstitutional. As such, these provisions are not necessary.
), a police reserve
fund (pg. 104), and the City has paid off the 1982 bonds required to finance
improvements to the City’s water system (pg. 874).
o Because of the 2009 Montana Legislature’s adoption of the ban on red light
cameras, we propose to delete the provisions in the BMC authorizing red light
cameras (see pg. 446). o The City currently has a “sign code” that is located in title 15 completely independent of the UDC sign code provisions. As these title 15 provisions are not
enforced, they are shown to be repealed (see pg. 207).
o Chapter 8.20 of the current BMC contains provisions authorizing the “sanitary
inspector of the city and the county” to inspect “all establishments within the city” for the sale of meat products. The city has not done this for decades as the City-county Health Department does inspections pursuant to state law. Thus the
provisions will be deleted from the code. The same is true for the provision relate
to milk (pg. 278) and the ban on dropping “handbills, circulars, and cards…” from
airplanes (pg. 185).
• Other provisions proposed for amendment include exceptions required by case law. For
example, the City’s current curfew for minors under the age of 16 (chapter 9.80) lacks a
list of exceptions required by federal case law. With Attachment A, new section
24.08.160 incorporates specific exceptions to the City’s 10:00 pm curfew. A similar issue exists with exceptions for service animals from prohibitions on animals in park facilities (see new section 26.02.030 at pg. 341).
• Many changes are merely ministerial in nature and reflect changes in administrative
structure. For example, during the past decade the City combined the fire and police departments into a “Department of Public Safety” with a fire and police division. Many code sections were amended at that time to reflect the authority of a “Director of Public
Safety.” The current City Manager changed that structure back: now, the city has a Police
Department and a Fire Department – each lead by a Chief. The new BMC reflects this
most recent change. For example, see pg. 407 in Attachment A.
Long-Term Management of the Bozeman Municipal Code:
As stated above, an ongoing contract with MCC will allow us to ensure the codification process continues on a recurring basis. To implement a continual codification process, the Clerk’s office will forward all adopted ordinances to MCC for placement on their website. These ordinances
will also be made available as written supplements to the BMC. In addition, the staff will
immediately begin “Phase II.”
6 The page citations in this section refer to the page of Attachment A.
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FISCAL EFFECTS: Currently, the City has paid MCC a total of $13,312 for this codification
project. On March 23, 2009, the City Commission authorized the City Manager to sign an
Agreement for Codification Services with Municipal Code at a total base cost of $16,140. The
City has included more ordinances than what was originally anticipated in order to keep as up-to-date as possible during the review process so the total cost has increased $5,940. As such, the estimated amount still due to MCC is still $9,580. This cost has been budgeted for in the Clerk’s
Office Fiscal Year 2011-2012 budget.
It is estimated that the annual costs to maintain the website and have MCC publish supplements will be around $4,500-5,500 (based on the size of the current code); however, this amount will be directly impacted by the number of ordinances passed in a given year.
ALTERNATIVES: As suggested by the City Commission. ATTACHMENTS:
• A compact disc that contains the following documents in portable document format (pdf): o Attachment A to Ordinance 1816: The 2011 Final Proof; o The 2009 Codification Draft; o A sample of a final published chapter (Chapter 38, the Unified Development
Code (UDC) (formerly known as Title 18, the “UDO”);
o Staff comments on the 2009 draft; o Staff comments on the December 2010 draft; and o Staff comments on the May 2011 draft.
Report compiled on: September 8, 2011
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Ordinance 1816
Page 1 of 3
ORDINANCE NO. 1816
AN ORDINANCE ADOPTING AND ENACTING A NEW CODE FOR THE CITY OF BOZEMAN, MONTANA; PROVIDING FOR THE REPEAL OF
CERTAIN ORDINANCES NOT INCLUDED THEREIN; PROVIDING A
PENALTY FOR THE VIOLATION THEREOF; PROVIDING FOR THE
MANNER OF AMENDING SUCH CODE; AND PROVIDING WHEN SUCH
CODE AND THIS ORDINANCE SHALL BECOME EFFECTIVE.
NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of
Bozeman Montana:
Section 1
The complete system of the City of Bozeman’s positive law carefully arranged and officially
promulgated, attached to this Ordinance as Attachment A, entitled "Bozeman Municipal Code,"
(hereinafter referred to as “the Code”), to be published by Municipal Code Corporation in 2011, and
consisting of chapters 1 through 42, each inclusive, is hereby adopted. All footnotes, comments, and
edits on the Code as shown in Attachment A shall be removed after final adoption of this Ordinance
and prior to publication.
Section 2
All ordinances of a general and permanent nature enacted on or before May 9, 2011, except
Ordinance 1802 (adopting Residential Emphasis Mixed Use zoning), and not included in the
attached Code or recognized and continued in force by reference therein, are repealed.
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Section 3
The repeal provided for in section 2 hereof shall not be construed to revive any ordinance or
part thereof that has been repealed by a subsequent ordinance that is repealed by this ordinance.
Section 4
Unless another penalty is expressly provided, every person convicted of a violation of any
provision of the Code or any ordinance, rule or regulation adopted or issued in pursuance thereof
shall be punished by a fine not exceeding $500.00 or by imprisonment for a period not exceeding six
months, or by both such fine and imprisonment. Each act of violation and each day upon which any
such violation shall continue or occur shall constitute a separate offense. The penalty provided by
this section, unless another penalty is expressly provided, shall apply to the amendment of any Code
section, whether or not such penalty is reenacted in the amendatory ordinance. In addition to the
penalty prescribed above, the City may pursue other remedies such as abatement of nuisances,
injunctive relief and revocation of licenses or permits.
Section 5
Additions or amendments to the Code when passed in such form as to indicate the intention
of the City Commission to make the same a part of the Code shall be deemed to be incorporated in
the Code, so that reference to the Code includes the additions and amendments.
Section 6
Ordinances adopted after May 9, 2011 including Ordinance 1802 (adopting Residential
Emphasis Mixed Use zoning) that amend or refer to ordinances that have been codified in the Code
shall be construed as if they amend or refer to like provisions of the Code.
Section 7
This ordinance shall become effective thirty (30) days after final adoption.
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Ordinance 1816
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PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman, Montana
on second reading at a regular session thereof held on the 19th day of September, 2011.
____________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the City
of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of
______________, 2011.
__________________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM
__________________________________________
GREG SULLIVAN
City Attorney
590