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HomeMy WebLinkAboutOrdinance 1838.pdf Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Tim McHarg, Planning Director SUBJECT: Municipal Code Amendment #Z-12187 – First Reading and Preliminary Adoption of Ordinance 1838 to amend the text of the Unified Development Code to amend the text of the Unified Development Code to revise the table of residential uses regarding community residential facilities; to amend the definitions of community residential facilities, cooperative household, and household; and, to establish a reasonable accommodation process to ensure compliance with applicable laws relative to persons with disabilities or within other protected classes. The application may also amend additional sections which are relevant to the same topic if a need to do so is identified during the public review process. MEETING DATE: August 27, 2012 AGENDA ITEM TYPE: Action (Legislative Item) RECOMMENDATION: Preliminarily adopt Ordinances 1838 amending the text of the Unified Development Code to revise the table of residential uses regarding community residential facilities; to amend the definitions of community residential facilities, cooperative household, and household; and, to establish a reasonable accommodation process to ensure compliance with applicable laws relative to persons with disabilities or within other protected classes. RECOMMENDED MOTION: “Having reviewed the application materials, considered public comment, and considered all of the information presented, I hereby adopt the findings presented in the staff report for application Z-12187 and move to preliminarily approve Ordinance 1838 amending Chapter 38 of the Bozeman Municipal Code.” BACKGROUND: The Zoning Commission considered this draft ordinance at a public hearing on August 7, 2012. There was no public comment. The Zoning Commission recommended adoption of this ordinance, as reflected in the attached meeting minutes and resolution. The City’s adopted Fair Housing Policy establishes a commitment to ensuring that housing opportunities are available on an equal opportunity basis through our administrative and regulatory practices. The Unified Development Code (UDC) is a critical component of the City’s practices relative to equal access and availability to housing. Therefore, the City periodically reviews the compliance of the UDC with applicable non-discrimination laws, including the Fair Housing Amendments Act of 1988, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Montana Human Rights Act, and the Montana Governmental Code of Fair Practices. 149 As part of ongoing litigation brought by Montana Fair Housing (MFH) against the City of Bozeman, Judge Christianson had recently decided that the Authorized Uses section of the UDC “discriminates against the handicapped on its face.” Because of that ruling, the City must correct the UDC. A small portion of the amendments proposed as part of Ordinance 1838 are to provide these required corrections. However, the majority of the amendments have been initiated at the sole discretion of the City in the interests of improving compliance with applicable laws and expanding equal housing opportunities. The City has been in discussion about these amendments with MFH and has obtained a level of agreement with them. The amendments to the UDC proposed by Ordinance 1838 can be summarized as follows: 1) Changes related to regulation of Community Residential Facilities (CRFs) in the Residential, Residential Emphasis Mixed Use, Commercial, and Urban Mixed Use Zoning Districts. These amendments are contained in Sections 2, 3, 4 and 5 of Ordinance 1838. 2) Creation of a reasonable accommodation procedure to comply with The Fair Housing Amendments Act of 1988 for the disabled and other protected classes. This new procedure is established in Sections 6 and 7 of Ordinance 1838; and, 3) Changes to applicable definitions. These amendments are contained in Sections 8, 9, 10, 11, 12 and 13 of Ordinance 1838. Please see the attached Zoning Commission Staff Report for a full discussion and analysis of the proposed UDC amendments. UNRESOLVED ISSUES: Does the City Commission wish to proceed with the proposed amendments? ALTERNATIVES: The City Commission could decline to approve the ordinance or could propose alternative language for the amendments. FISCAL EFFECTS: This Zone Code Amendment and Ordinance does not have a direct expense to the City. Attachments: Ordinance 1838 Staff report August 7, 2012, Zoning Commission minutes and resolution Report compiled on: August 16, 2012 150 Page 1 of 20 ORDINANCE NO. 1838 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY REVISING SECTIONS 38.08.020, 38.42.660, 38.42.760 AND 38.42.1420, CLARIFYING AUTHORIZED RESIDENTIAL USES AND ESTABLISHING A REASONABLE ACCOMMODATION PROCEDURE. WHEREAS, the proposed text amendment application has been properly submitted, and reviewed, and all necessary public notice was given for all public hearings; and WHEREAS, the City of Bozeman Zoning Commission held a public hearing on _______ __, 2012, to discuss the proposed text amendment, and receive and review all written and oral testimony on the request for the text amendment; and WHEREAS, as shown in Zoning Commission Resolution Z-12_____, the Bozeman Zoning Commission recommended to the Bozeman City Commission that the proposed text amendments be approved; and WHEREAS, after proper notice, the City Commission held a public hearing on ___________ __, 2012, to receive and review all written and oral testimony on the request for a text amendment to the Bozeman Municipal Code; and WHEREAS, the City Commission reviewed and considered the relevant text amendment criteria established by Section 76-2-304, M.C.A., and found the proposed text amendment to be in compliance with the purposes of the title as locally adopted in Chapter 38, Bozeman Municipal Code; and WHEREAS, at its public hearing, the City Commission found that the proposed text amendment would be in compliance with Bozeman’s adopted growth policy and applicable statutes and would be in the public interest. July 31, 2012 151 Page 2 of 20 NOW, THEREFORE, BE IT ORDAINED by the City Commission of the City of Bozeman, Montana: Section 1 That Section 38.08.020, Bozeman Municipal Code be amended to read as follows: “Sec. 38.08.020. - Authorized uses. A. Uses in the various residential districts are depicted in Table 38.08.020 in subsection B C 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 article 29 of this chapter. C. The uses listed are deliberately broad and some are given special definitions in article 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 article 22 of this chapter. Section 2 That Table 38.08.020. of the Bozeman Municipal Code be amended to read as follows: Table 38.08.020 Table of Residential Uses Authorized 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 article 42 of this chapter — — — — P P — Assisted Living/elderly care facilities - - - C P 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 eight or fewer residents P P P P P P P Community residential facilities serving nine or - - - C P P - 152 Page 3 of 20 more residents 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 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 article 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 — 153 Page 4 of 20 Notes: 1Manufactured homes are subject to the standards of section 38.22.130. 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 38.22.110. 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 8. 8Not permitted on reduced size lots for work force housing as described in chapter 10, article 8. 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. Section 3 That Table 38.09.020. of the Bozeman Municipal Code be amended to read as follows: 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 article 20 of this chapter C C C C C C C Veterinary uses C — — — — — — 154 Page 5 of 20 Table 38.09.020 Table of Uses Maximum Gross Building Area Authorized Uses Accessory dwelling unit P Apartments and apartment buildings P Arts and entertainment center 12,000 square feet P Assisted living/elderly care facilities P Automobile fuel sales C Automobile parking lot or garage (public or private) P Automobile washing establishment C Banks and other financial institutions P Bed and breakfast P Business, technical or vocational school P Community centers P Community residential facilities with eight or fewer residents P Community residential facilities serving nine or more residents P Convenience uses except for automobile fuel sales (as listed above) P Cooperative household P Convenience use restaurant 5,000 square feet P4 Daycare—Family, group, or center P Essential services (Type II) C Extended-stay lodgings 40,000 square feet P Fraternity, sorority or lodge P Group living P Health and exercise establishments P Home-based businesses (subject to section 38.09.030 only) P Hospitals C Hotel or motel 40,000 square feet P Laboratories, research and diagnostic 10,000 square feet P Laundry service center P Light goods repair P Lodging houses P Manufacturing (light and completely indoors) 5,000 square feet P Museum P Medical and dental offices, clinics and centers P Meeting hall P Offices P Other buildings and structures (typically accessory A 155 Page 6 of 20 to permitted uses) Personal and convenience services P Pet grooming shop P Printing offices and publishing establishments 5,000 square feet P Public buildings P Refuse and recycling containers A Restaurants P Retail uses less than or equal to 5,000 square feet 5,000 square feet P1 Retail uses greater than 5,000 square feet and less than or equal to 12,000 square feet 12,000 square feet P1, 2 Retail uses greater than 12,000 square feet and less than or equal to 25,000 25,000 square feet P1, 3 Sales of alcohol for on-premise consumption—No gaming allowed C Single household dwelling P Three- or four-household dwelling P Townhouses (five attached units or less) P Two-household dwelling P Veterinary clinic C Wholesale distributors with on-premise retail outlets (providing warehousing is limited to commodities which are sold on the premises) 10,000 square feet C Wholesale establishments (ones that use samples, but do not stock on premises) 5,000 square feet C Any use, except adult businesses and casinos, approved as part of a planned unit development subject to the provisions of article 20 of this chapter. C Notes: 1Excluding adult businesses as defined in article 42 of this chapter. 2Limited to no more than four structures per 100 acres of contiguous master planned development and subject to section 38.09.020.C. 3Limited to no more than two structures per 100 acres of contiguous master planned development and subject to section 38.09.020.C. 4Convenience use restaurants with drive-ups or drive-throughs require additional buffering when adjacent to residential uses which may include, but are not limited to sound barrier walls, berms, and/or landscaping. Section 4 That Table 38.10.020. of the Bozeman Municipal Code be amended to read as follows: 156 Page 7 of 20 Table 38.10.020 Table of Commercial Uses Authorized Uses B-1 B-2 B-3 Ambulance service — P P Apartments and apartment buildings6, as defined in this chapter P P1/C P3 Arts and entertainment center, as defined in this chapter P P P Assisted living/elderly care facilities — C — Automobile fuel sales or repair, as defined in this chapter 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 Community residential facilities with eight or fewer residents P P1/C P3 Community residential facilities serving nine or more residents — C — Convenience uses C P C Convenience use restaurant P P P Day care centers P P P 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 chapter — 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 chapter 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 chapter P P P Pet grooming shop P P P 157 Page 8 of 20 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 chapter 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 — 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 article 20 of this chapter C C C Notes: 1When located on the second or subsequent floor, or basement as defined in article 42 of this chapter. 2Excluding adult businesses, and large scale retail, as they are defined in article 42 of this chapter. 3Except on ground floor in the core area as defined in this article. 4Private arts instruction shall only be on the second or subsequent floor in the core area as defined in this article. 5Exclusive of drive-ins. 6May be subject to the provisions of chapter 10, article 8. 7Also subject to chapter 4, article 2. Section 5 That Table 38.11.020. of the Bozeman Municipal Code be amended to read as follows: Table 38.11.020 158 Page 9 of 20 Table of Commercial Uses Authorized Uses Ambulance service P Apartments and apartment buildings1 (as defined in this chapter) P Arts and entertainment center (as defined in this chapter) P Assisted living/elderly care facilities P Automobile fuel sales or repair (as defined in this chapter) 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 Community residential facilities with eight or fewer residents P Community residential facilities serving nine or more residents P Convenience uses C Convenience use restaurant P Essential services (Type II) C Extended-stay lodgings P Health and exercise establishments P Hospitals P Hotel or motel P Laboratories, research and diagnostic P Laundry, dry cleaning P Light goods repair (as defined in this chapter) 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 chapter) P Other buildings & structures (typically accessory to permitted uses) A Parking facilities P Personal and convenience services (as defined in this chapter) 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 chapter) P* Retail (large scale) C 159 Page 10 of 20 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 article 20 of this chapter C Notes:*Excluding adult business, and large scale retail, as they are defined in article 42 of this chapter — 1May be subject to the provisions of chapter 10, article 8. Section 6 That Section 38.35.010 of the Bozeman Municipal Code be amended to read as follows: Sec. 38.35.010. - Purpose. A. This article is adopted: 1. To establish procedures for granting relief from the requirements of this chapter subject to the standards of this article in order to preserve equitable implementation of the law, prevent special treatment to particular parties and preserve the various rights established by the state and United States constitutions of all persons subject to this chapter; 2. To provide through appeals of administrative interpretations a procedure for consideration of and resolution of disputes regarding the meaning and implementation of this chapter; 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 chapter in overlay districts and planned unit developments as provided for in this chapter; 4. To provide through zoning variances a procedure for relief from the occasional inequities created by the physical standards of this chapter 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 160 Page 11 of 20 and general welfare; and 7. To allow for appeals from decisions made by administrative staff approving, approving with conditions or denying applications for development approval.; and 8. To provide a procedure to request reasonable accommodation for individuals and groups seeking equal access to housing under applicable non-discrimination laws in the application of the standards of this chapter. B. The planning director shall hear and decide requests for reasonable accommodation as follows: 1. Authorize in specific cases such requests for reasonable accommodation from the terms of this chapter as will advance the intent and purpose of this chapter and applicable nondiscrimination laws and meet the standards for the granting of reasonable accommodation. BC. 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 chapter relating to zoning as will advance the intent and purposes of this chapter and meet the standards established for the granting of deviations; 2. Authorize in specific cases such zoning variances from the physical standards of this chapter, 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 chapter shall be observed and substantial justice done. CD. The city commission shall hear and decide appeals of administrative decisions, variances, and deviations, and requests for reasonable accommodation as follows: 1. When reclaimed per section 38.34.010C. a. Authorize in specific cases such deviations from the terms of this chapter relating to zoning as will advance the intent and purposes of this chapter 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 chapter, 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 chapter shall be observed and substantial justice done.; and c. Authorize in specific cases such requests for reasonable accommodation from the terms of this chapter as will advance the intent and purposes of this chapter and applicable nondiscrimination laws and meet the standards established for the granting of reasonable accommodation. 2. Authorize in specific cases such subdivision variances from the platting requirements 161 Page 12 of 20 and standards for improvements within public rights-of-way required by this chapter 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 chapter 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 article. Section 7 That the Bozeman Municipal Code be amended to add a new Section 38.35.090 to read as follows: Sec. 38.35.090. – Reasonable Accommodation. A. Applicability. 1. A request for reasonable accommodation may be made by the following: a. Any disabled person, their representative, or any entity, when the application of a requirement of this chapter acts as a barrier to fair housing opportunities based on their physical or mental disability or handicap as defined under the Applicable Non- Discrimination Laws. b. Any person, their representative, or any entity, when the application of a requirement of this chapter acts as a barrier to fair housing opportunities based on race, color, religion, sex, creed, familial status, marital status, age, or national origin, as defined under the Applicable Non-Discrimination Laws. 2. A request for reasonable accommodation may include a modification or exception to the rules, standards, and practices for the siting, development, and use of housing or housing-related facilities that would eliminate regulatory barriers and provide equal opportunity to housing of their choice. 3. A reasonable accommodation is granted to the applicant that needs the accommodation and does not apply to successors in interest to the site. 4. A reasonable accommodation may be granted in compliance with this chapter without the need for the approval of a variance. 162 Page 13 of 20 B. Procedure. 1. Application. A request for reasonable accommodation shall be submitted on an application form provided by the planning department or in the form of a letter to the planning director, and shall contain the following information: a. The applicant’s name, address, and telephone number; b. Address of the property for which the request is being made; c. Authorization from the owner of the subject property for the applicant to request the reasonable accommodation; d. The current actual use of the property; e. The basis for the claim as follows: (1) that the individual or group of individuals is considered physically or mentally disabled or handicapped under the Applicable Non-Discrimination Laws, including identification and description of the disability or handicap which is the basis for the request for accommodation and current, written medical certification and description of disability or handicap and its effects on the person’s medical, physical or mental limitations; or, (2) that the individual or group of individuals is a protected class based on race, color, religion, sex, creed, familial status, marital status, age, or national origin, as defined under the Applicable Non-Discrimination Laws, including identification and description of the protected class which is the basis of the request for accommodation. f. The code provision, regulation, procedure and/or policy from which reasonable accommodation is being requested; g. The type and extent of reasonable accommodation sought; h. The reason(s) why the accommodation is reasonable and necessary for the needs of the individual(s), including a summary of any potential alternatives contained in this chapter considered in requesting the accommodation and why other alternatives contained in this chapter are not feasible; i. Copies of memoranda, correspondence, pictures, plans or background information reasonably necessary to reach a decision regarding the need for the accommodation; and 163 Page 14 of 20 j. Other supportive information deemed necessary by the department to facilitate proper consideration of the request, consistent with Applicable Non-Discrimination Laws. 2. Review with Other Land Use Applications. If the project for which the request for reasonable accommodation is being made also requires some other discretionary approval (including conditional use permit, etc.), then the applicant shall file the information required by subsection 1 of this section for concurrent review of the request for reasonable accommodation with the application for discretionary approval. 3. Review Authority. a. Planning Director. A request for reasonable accommodation shall be reviewed by the planning director if no approval is sought other than the request for reasonable accommodation. No fee shall be charged for the review of such a request for reasonable accommodation. b. Other Review Authority. A request for reasonable accommodation submitted for concurrent review with another discretionary land use application shall be reviewed by the authority responsible for the discretionary land use application. No fee in addition to that charged for the other discretionary land use application shall be charged for the review of such a request for reasonable accommodation. 4. Review. a. Planning Director. The director shall make a written determination within twenty (20) calendar days of the application being deemed complete and either grant, grant with conditions, or deny a request for reasonable accommodation. If necessary to reach a determination on the request for reasonable accommodation, the director may request further information from the applicant consistent with Applicable Non- Discrimination Laws, specifying in detail the information that is required. In the event that a request for additional information is made, the twenty (20) day period to issue a decision shall be stayed until the applicant responds to the request. 5. Notice. b. Other Review Authority. The written determination on whether to grant or deny the request for reasonable accommodation shall be made by the authority responsible for the discretionary land use application in compliance with the applicable review procedure for the discretionary review. a. Planning Director. No advance notice or public hearing is required for consideration of reasonable accommodation requests by the planning director. b. Other Review Authority. Requests for reasonable accommodation subject to 164 Page 15 of 20 review by other review authorities shall require public notice and a public review process pursuant to the requirements for the other discretionary land use application that is the subject of the review, including all public notice provisions pursuant to Sec. 38.40.030. 6. Balancing rights and requirements. In reviewing applications for requests for reasonable accommodation, the city will attempt to balance: a. The privacy rights and reasonable request of an applicant for confidentiality; with b. The land use requirements for notice and public hearing, factual findings and rights to appeal, in the city’s requests for information, considering an application, preparing written findings and maintaining records for a request for reasonable accommodation. c. Any document identifying the disability or medical condition of any specific person shall be treated as confidential and shall not be subject to disclosure by the City for any reason, including for compliance with the Open Records Act, unless ordered to do so by a court of competent jurisdiction and notice is given to the person who provided the document to the City. Specifically, any medical records regardless of source, including statements of medical providers, shall not be subject to disclosure. For any other type of document, such as an application or determination, the document may be subject to disclosure, but only after the nature or description of the person’s disability or medical condition is redacted by the City. A statement regarding the City’s handling of information subject to this provision shall be printed on the City’s Reasonable Accommodation Application Form, posted on the City’s website, and printed at the bottom of any written document issued by the City determining a reasonable accommodation application. C. Findings – Other requirements. 1. Findings. The reviewing authority shall approve the application, with or without conditions, if it can make the following findings: a. The housing will be used by a disabled person or a person from a protected class; b. The requested accommodation is necessary to make specific housing available to a disabled person or a person from a protected class; c. There are no uses identified in the Table of Authorized Uses found at 38.08.020 for which the use proposed in the request for reasonable accommodation would qualify. d. The requested accommodation would not impose an undue financial or administrative burden on the city; and 165 Page 16 of 20 e. The requested accommodation would not require a fundamental alteration in the nature of the city land use planning and zoning program. 2. Other requirements. a. An approved request for reasonable accommodation is subject to the applicant’s compliance with all other applicable zoning regulations. b. A modification approved under this chapter is considered a personal accommodation for the individual applicant and does not run with the land. c. Where appropriate, the reviewing authority may condition its approval on any or all of the following: (1) Inspection of the property periodically, as specified, to verify compliance with this section and any conditions of approval; (2) Removal of the improvements, where removal would not constitute an unreasonable financial burden, when the need for which the accommodation was granted no longer exists; (3) Time limits and/or expiration of the approval if the need for which the accommodation was granted no longer exists; (4) Recordation of a deed restriction requiring removal of the accommodating feature once the need for it no longer exists; (5) Measures to reduce the impact on surrounding uses; (6) Measures in consideration of the physical attributes of the property and structures; (7) Other reasonable accommodations that may provide an equivalent level of benefit and/or that will result in reduced variation or waiver of otherwise applicable standards specified for the zone district; and (8) Other conditions necessary to protect the public health, safety and welfare. Section 8 That the Bozeman Municipal Code be amended to add a new Section 38.42.195 to read as follows: Sec. 38.42.195. - Applicable Non-Discrimination Laws. 166 Page 17 of 20 Section 9 The Fair Housing Amendments Act of 1988, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Montana Human Rights Act, and the Montana Governmental Code of Fair Practices. That Section 38.42.660 of the Bozeman Municipal Code be amended to read as follows: Sec. 38.42.660. - Community residential facility. A. A single residential structure having common kitchen facilities facility licensed by the Montana Department of Public Health and Human services 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 An assisted living facility licensed under § 50-5-227, M.C.A.; 7. A foster home, kinship foster home, youth shelter care facility, or youth group home operated under the provisions of §§ 52-2-621 through 52-2-623, M.C.A. 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. Section 10 That Section 38.42.760 of the Bozeman Municipal Code be amended to read as follows: Sec. 38.42.760. - Cooperative household. A. Five or more people who are granted a conditional use permit as a cooperative household pursuant to the terms of article 18 of this chapter A cooperative household is a single housekeeping unit with five or more persons which 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; 167 Page 18 of 20 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 for a period of less than 12 months. Section 11 That the Bozeman Municipal Code be amended to add a new Section 38.42.895 to read as follows: Sec. 38.42.895. – Disabled Person . Section 12 A person who has a medical, physical or mental condition that limits a major life activity, anyone who is regarded as having such a condition or anyone who has a record of having such a condition. This includes persons who have a handicap or a physical or mental disability as defined in Applicable Non-Discrimination Laws. It includes a person or persons, or an authorized representative of a disabled person. The term “disabled person” does not include a person who is currently using illegal substances, unless he or she has a separate disability. That Section 38.42.1420 of the Bozeman Municipal Code be amended to read as follows: 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; or 3. Two unrelated people and any children related to either of them.; or 168 Page 19 of 20 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 chapter; 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. Persons or groups granted a request for a reasonable accommodation to reside as a single housekeeping unit pursuant to Sec. 38.35.090. 6. "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. Section 13 That the Bozeman Municipal Code be amended to add a new Section 38.42.2565 to read as follows: Sec. 38.42.2565. – Reasonable Accommodation . Section 14 A process for providing flexibility in the application of city land use and zoning regulations and procedures, or even waiving certain requirements, when necessary to eliminate barriers to equal housing opportunities guaranteed under Applicable Non-Discrimination Laws. It may include flexible application of regulations such as: the definition of household; authorized uses in zone districts; yard area modifications for ramps, handrails or other such accessibility improvements; hardscape additions, such as widened driveways, parking area or walkways; building additions for accessibility; or reduced off-street parking where the disability clearly limits the number of people operating vehicles. Reasonable accommodation does not include an accommodation which would (1) impose an undue financial or administrative burden on the city or (2) require a fundamental alteration in the nature of the city’s land use and zoning program. Reasonable accommodations are subject to all laws that require or regulate planning, zoning or subdivision and platting. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect the other provisions of this 169 Page 20 of 20 ordinance which may be given effect without the invalid provision or application and, to this end, the provisions of this ordinance are declared to be severable. Section 15 Savings Provision. This ordinance does not affect the rights or duties that matured, penalties and assessments that were incurred or proceedings that began before the effective date of this ordinance. Section 16 The effective date of this ordinance is 30 days after passage on 2nd reading. PASSED by the City Commission of the City of Bozeman, Montana, on first reading, at a regular session thereof held on the _________ day of ________ 2012. 170 CITY COMMISSION/ZONING COMMISSION STAFF REPORT UDC TEXT AMENDMENT FILE NO. #Z-12187 #Z-12064 UDC Text Amendment Staff Report Page 1 of 6 Item: Unified Development Code Text Amendment Application #Z-12187 implements the City’s policy and commitment to Fair Housing practices to ensure that housing opportunities are available on an equal opportunity basis. Specifically, this application is a request to amend the text of the Unified Development Code to revise the table of residential uses regarding community residential facilities; to amend the definitions of community residential facilities, cooperative household, and household; and, to establish a reasonable accommodation process to ensure compliance with applicable laws relative to persons with disabilities or within other protected classes. The application may also amend additional sections which are relevant to the same topic if a need to do so is identified during the public review process. Applicant(s): City of Bozeman, PO Box 1230, bozeman MT 59771 Date/Time: Before the Bozeman Zoning Commission on Tuesday, August 7, 2012 at 6:00 p.m. in the Commission Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana. Before the Bozeman City Commission on Monday, August 27, 2012 at 6:00 p.m. in the Commission Room, City Hall, 121 North Rouse Avenue, Bozeman, Montana. Report By: Tim McHarg, Planning and Community Development Director Recommendation: Approval Suggested Motions: “Having heard and considered public comment, I hereby adopt the findings presented in the staff report and move to recommend approval of the text amendments to Chapter 38 of the Bozeman Municipal Code as included in the draft Ordinance 1838 as requested in application Z-12187.” PROJECT LOCATION The proposed edits are applicable throughout the boundaries of the City of Bozeman. PROPOSAL AND BACKGROUND INFORMATION The City’s adopted Fair Housing Policy establishes a commitment to ensuring that housing opportunities are available on an equal opportunity basis through our administrative and regulatory practices. The Unified Development Code is a critical component of the City’s practices relative to equal access and availability to housing. Therefore, the City periodically reviews the compliance of the UDC with applicable non-discrimination laws, including the Fair Housing Amendments Act of 1988, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Montana Human Rights Act, and the Montana Governmental Code of Fair Practices. 171 #Z-12187 UDC Text Amendment Staff Report Page 2 of 6 Unified Development Code Text Amendment Application #Z-12187 is the result of such a periodic review to ensure that the City’s practices are consistent with applicable non-discrimination laws and recent case law. The key components of the proposed amendments are summarized as follows: 1. Amending the Tables of Uses for a variety of zone districts to comply with the requirements of MCA Sec. 76-2-412(3) relative to Community Residential Facilities, which states: The facilities listed in subsections (1) and (2) are a permitted use in all residential zones, including but not limited to residential zones for single-family dwellings. Any safety or sanitary regulation of the department of public health and human services or any other agency of the state or a political subdivision of the state that is not applicable to residential occupancies in general may not be applied to a community residential facility serving 8 or fewer persons or to a day-care home serving 12 or fewer children. The use tables now differentiate between “Community Residential Facilities with eight (8) or fewer residents” and “Community Residential Facilities with nine (9) or more residents.” These amended use tables are included in draft Ordinance 1838 as follows: • Residential Zoning Districts, Table 38.08.020: Section 2 of draft Ordinance 1838. The amended table will allow “Community Residential Facilities with eight (8) or fewer residents” as a principal use in all residential zoning districts. “Community Residential Facilities with nine (9) or more residents” will be allowed as a conditional use in the R-3 district and as a principal use in the R-4 and R-O districts. The “Assisted Living/elderly care facilities” use category will be eliminated, since this use will be contained within the amended “Community Residential Facility” definition (Section 9 of draft Ordinance 1838). • Residential Emphasis Mixed Use (REMU) Zoning District, Table 38.09.020: Section 3 of draft Ordinance 1838. The amended table will allow “Community Residential Facilities with eight (8) or fewer residents” and “Community Residential Facilities with nine (9) or more residents” as principal uses in the REMU zoning district. The “Assisted Living/elderly care facilities” use category will be eliminated, as discussed previously. • Commercial Zoning Districts, Table 38.10.020: Section 4 of draft Ordinance 1838. The amended table will be allow “Community Residential Facilities with eight (8) or fewer residents” as a principal use in all commercial zoning districts, provided that the residential unit is not located on the ground floor in the B-2 district or within the core area of the B-3 district. “Community Residential Facilities with eight (8) or fewer residents” on the ground floor in the B-2 district will be allowed as a conditional use. “Community Residential Facilities with nine (9) or more residents” will be allowed as a conditional use in the B-2 district. The “Assisted Living/elderly care facilities” use category will be eliminated, as discussed previously. • Urban Mixed Use (UMU) Zoning District, Table 38.11.020: Section 5 of draft Ordinance 1838. The amended table will allow “Community Residential Facilities with eight (8) or 172 #Z-12187 UDC Text Amendment Staff Report Page 3 of 6 fewer residents” and “Community Residential Facilities with nine (9) or more residents” as principal uses in the UMU zoning district. The “Assisted Living/elderly care facilities” use category will be eliminated, as discussed previously. 2. Establishing a reasonable accommodation procedure to comply with The Fair Housing Amendments Act of 1988. This new procedure is established in Sections 6 and 7 of draft Ordinance 1838. The Fair Housing Amendments Act of 1988 prohibits cities and counties from discriminating against individuals with disabilities through land use and zoning decisions and procedures. Not only must local governments not discriminate, but the Fair Housing Act requires that cities provide reasonable accommodation to land use and development regulations where such accommodation may be necessary to afford individuals with disabilities equal opportunity to housing. Draft ordinance 1838 provides a comprehensive reasonable accommodation procedure for implementing the federal mandate. Requesting reasonable accommodation is appropriate where changing an existing UDC standard would provide an individual with a disability equal opportunity to housing of choice or a developer the flexibility necessary for developing housing for individuals with disabilities. Reasonable accommodation procedures are well established throughout the country for ensuring equal housing opportunities to disabled individuals. However, the City of Bozeman recognizes that there are other federal and state laws that prohibit discrimination against other protected classes, including race, color, religion, sex, creed, familial status, marital status, age, or national origin. Therefore, consistent with the City’s Fair Housing Policy, the draft ordinance extends the applicability of the reasonable accommodation procedure to include these other protected classes. 3. Amendment of several definitions related to fair housing practices. These amended definitions are included in Sections 8 through 13 of draft Ordinance 1838 as follows: • Applicable Non-Discrimination Laws • Community Residential Facility • Cooperative Household • Disabled Person • Household • Reasonable Accommodation Land use standards and procedures must be updated from time to time to accommodate changing community needs, priorities, regulatory requirements and changing knowledge. The City of Bozeman continually monitors its Unified Development Code as it is applied to the community. The public review process for the proposed/draft amendment text allows evaluation of ideas and refinement of specific text. Revisions may be made to the draft as the process continues. REVIEW CRITERIA: The Zoning Commission criteria for review of a text amendment are established in statute. The analysis 173 #Z-12187 UDC Text Amendment Staff Report Page 4 of 6 below notes that review criteria are met with the term ‘yes’; are not met with the term ‘no’; or are not materially affected with the term ‘neutral’. This report is a summary of Staff’s analysis. Interpretation and application of the UDC must take into account the document as a whole. If a substantial change is made then a particular point may be emphasized. To prevent redundancy, when an earlier review criterion has addressed an issue a later review criterion addressing the same issue may refer back to the prior answer. According to Section 38.36.020 of the UDC, the Zoning Commission shall cause to be made an investigation of facts bearing on each text amendment application relevant to zoning. The Zoning Commission must review the information they consider necessary to assure that the action of each text amendment application is consistent with the intent and purpose of the UDC. Specifically, the investigation must address the following criteria as required in Section 76-2-304, Montana Code Annotated. Locally these are incorporated into Section 38.01.040.C&D, BMC The Zoning Commission is charged to offer a recommendation only on those criteria established by Section 76-2-304, MCA which are identified by letter below. A. Be in accordance with a growth policy. Section 76-2-304, MCA Criteria: Yes. The amendment advances a variety of public policy goals as illustrated by this selection of goals and objectives from the growth policy. Chapter 1: Addressing Growth & Change Objective G-2.1: Ensure that development requirements and standards are efficiently implemented, fairly and consistently applied, effective, and proportionate to the concerns being addressed. Objective G-2.4: Develop a balanced system of regulatory requirements, programs, and incentives to ensure that development within the Planning Area is in compliance with the Bozeman Community Plan. Chapter 3: Land Use Objective LU-1.4: Provide for and support infill development and redevelopment which provides additional density of use while respecting the context of the existing development which surrounds it. Respect for context does not automatically prohibit difference in scale or design. Chapter 4: Community Quality Goal C-3: Neighborhood Design – New neighborhoods shall be pedestrian oriented, contain a variety of housing types and densities, contain parks and other public spaces, have a commercial center and defined boundaries. Chapter 6: Housing Goal H-1: Promote an adequate supply of safe, quality housing that is diverse in type, density, cost and location with an emphasis on maintaining neighborhood character and stability. Objective H-1.1: Encourage and support the creation of a broad range of housing types in proximity to services and transportation options. 174 #Z-12187 UDC Text Amendment Staff Report Page 5 of 6 Objective H-1.3: Promote the provision of a wide variety of housing types in a range of costs to meet the diverse residential needs of Bozeman residents. Objective H-2.1: Encourage socially and economically diverse neighborhoods. Additionally, the amendment advances the following strategies from the Affordable Housing Action Plan (2012-2016): Strategy 1.5. Provide more housing for people with special needs. Strategy 2.6: Clarify zoning status of group homes. B. The effect on motorized and non-motorized transportation systems. Neutral. The proposed amendments will not alter or change the UDC regulations or guidelines pertaining to motorized or non-motorized transportation systems. C. Secure safety from fire, panic, and other dangers. Neutral. The proposed amendments do not alter the on-site standards, building codes, or fire codes which address this criterion. D. Promote public health, public safety, and general welfare. Yes. The amendments promote public health and general welfare by establishing a broader range of housing options in the community and ensuring that housing opportunities are available on an equal opportunity basis. E. Reasonable provision of adequate light and air. Neutral. The amendments do not alter any adopted standards which would affect this criterion. F. Prevention of overcrowding of land. Neutral. These amendments are not altering requirements for building density or intensity of use. Objectively, overcrowding is a condition where the intensity of the use of land overwhelms the ability of infrastructure and buildings to meet the needs of users. This functional problem is addressed by ensuring the installation of water, sewer, transportation, and other services to support permitted densities and intensities of use. The proposed amendments do not alter the standards for provision of services. G. Avoiding undue concentration of population. Neutral. The proposed amendments do not change standards for density of population. See also item F above. H. Facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Neutral. See items A, D and F. I. Conserving the value of buildings. Yes. The proposed amendments retain all provision of adequate services requirements for buildings as well as expanding potential residential housing options. These changes improve the general development climate within Bozeman. J. Character of the district. 175 #Z-12187 UDC Text Amendment Staff Report Page 6 of 6 Neutral. As noted earlier, these amendments are not limited to a particular zoning district but are generally applicable. K. Peculiar suitability for particular uses. Neutral. See discussion under item J. L. Encourage the most appropriate use of land throughout the jurisdictional area. Yes. The proposed amendments are consistent with the overall policies and goals of the City as indentified under item A. M. Promotion of Compatible Urban Growth. Neutral. The proposed amendment does not expand the development area of the City nor are likely to materially change the growth pattern of the city. By retaining the underlying development standards for mitigation of proposed developmental impacts, the amendments retain all standards that require growth be compatible with existing uses and needs. STAFF FINDINGS/CONCLUSION Planning Staff has reviewed this application for a Unified Development Code text amendment against the criteria set forth in statute and reflected in the Unified Development Code. Staff’s analysis finds that this application satisfies the required criteria. Based on the evaluation of said criteria and findings by the Planning Staff, staff recommends APPROVAL of the requested amendment. Pursuant to Section 76-2-307 Montana Codes Annotated, the Zoning Commission shall review the Unified Development Code text amendment application to determine if the proposed amendment meets the requirements of the adopted Growth Policy, state statute, and other adopted state and local ordinances. The Zoning Commission shall act to recommend approval or denial of the Unified Development Code text amendment. The recommendations will be forwarded to the Bozeman City Commission for consideration at its public hearing on August 27, 2012. The City Commission will make the final decision on the application. PUBLIC COMMENT As of the writing of this report, no public comment has been received in response to the public notification of this proposed text amendment. In the case of protest against these changes signed by the owners of 25% or more of either of the area of the lots included in the 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. ATTACHMENT Draft Ordinance 1838 with proposed amendments 176 Zone Code Amendment #Z-12187 1 RESOLUTION #Z-12187 RESOLUTION OF THE CITY OF BOZEMAN ZONING COMMISSION RECOMMENDING APPROVAL OF ZONE CODE AMENDMENT APPLICATION #Z- 12187 INCLUDING PROPOSED ORDINANCE 1838 OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, PROVIDING THAT THE BOZEMAN MUNICIPAL CODE BE AMENDED BY REVISING SECTIONS 38.08.020, 38.42.660, 38.42.760 AND 38.42.1420, CLARIFYING AUTHORIZED RESIDENTIAL USES AND ESTABLISHING A REASONABLE ACCOMMODATION PROCEDURE. WHEREAS, the City of Bozeman has adopted zoning regulations and a zoning map pursuant to Sections 76-2-301 and 76-2-302, M.C.A.; and WHEREAS, Section 76-2-305, M.C.A. allows local governments to amend zoning regulations if a public hearing is held and official notice is provided; and WHEREAS, Section 76-2-307, M.C.A. states that the Zoning Commission must conduct a public hearing and submit a report to the City Commission for all zoning regulation amendment requests; and WHEREAS, the City of Bozeman Zoning Commission has been created by Section 2.05.2700 of the Bozeman Municipal Code as provided for in Section 76-2-307, M.C.A.; and WHEREAS, Chapter 38, Article 36 of the Bozeman Unified Development Code sets forth the procedures and review criteria for zoning text amendments; and WHEREAS, the City of Bozeman initiated code amendments to modify the municipal code provisions relating to the Board of Adjustment and review authority for land use applications; and WHEREAS, the proposed text amendment request and draft Ordinance and Resolution has been properly submitted, reviewed and advertised in accordance with the procedures set forth in Chapter 38, Article 36 of the Bozeman Unified Development Code and Title 76, Chapter 2, Part 3, M.C.A.; and WHEREAS, the City of Bozeman Zoning Commission held a public hearing on August 7, 2012, to formally receive and review all written and oral testimony on the proposed amendments; and WHEREAS, no public comment was received and no public comment was expressed at the public hearing; and 177 Zone Code Amendment #Z-12187 2 WHEREAS, the Zoning Commission discussed the offered comments and Staff’s review of the proposed amendments; and WHEREAS, the City of Bozeman Zoning Commission finds that the proposed amendments complied with the review criteria; NOW, THEREFORE, BE IT RESOLVED that the City of Bozeman Zoning Commission, on a 3-0 vote, officially recommends to the Bozeman City Commission approval of the recommended amendments in draft Ordinances 1838. DATED THIS 7th DAY OF JULY, 2012, Resolution #Z-12187 _____________________________ ____________________________ Tim McHarg, Director Erik Garberg, Chairperson Dept. of Planning & Community Development City of Bozeman Zoning Commission 178 Page 1 of 5 Zoning Commission Minutes – August 7, 2012 ZONING COMMISSION MINUTES TUESDAY, AUGUST 7, 2012 ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Garberg called the meeting to order at 6:00 p.m. and ordered the Recording Secretary to take attendance. Members Present: Randy Wall, Vice Chairperson Trever McSpadden Erik Garberg, Chairperson City Commission Liaison: Members Absent: David Peck Staff Present: Tim McHarg, Planning Director Tara Hastie, Recording Secretary ITEM 2. PUBLIC COMMENT {Limited to any public matter within the jurisdiction of the Zoning Commission and not scheduled on this agenda. Three-minute time limit per speaker.} Seeing there was no general public comment forthcoming, Chairperson Garberg closed this portion of the meeting. ITEM 3. MINUTES OF JULY 31, 2012 MOTION: Mr. McSpadden moved, Vice Chairperson Wall seconded, to approve the minutes of July 31, 2012 as presented. The motion carried 3-0. Those voting aye being Chairperson Garberg, Mr. McSpadden, and Vice Chairperson Wall. Those voting nay being none. ITEM 4. PROJECT REVIEW 1. Unified Development Code Text Amendment Application #Z-12064 – (Fair Housing) A Zone Code Amendment requested by the applicant City of Bozeman, P.O. Box 1230, Bozeman, MT 59771, implements the City’s policy and commitment to Fair Housing practices to ensure that housing opportunities are available on an equal opportunity basis. Specifically, this application is a request to amend the text of the Unified Development Code to revise the table of residential uses regarding community residential facilities; to amend the definitions of community residential facilities, cooperative household, and household; and, to establish a reasonable accommodation process to ensure compliance with applicable laws relative to persons with disabilities or within other protected classes. The application may also amend additional sections which are relevant to the same topic if a need to do so is identified during the public review process. (McHarg) 179 Page 2 of 5 Zoning Commission Minutes – August 7, 2012 Planning Director Tim McHarg presented the Staff Report noting that Staff had initiated the series of Unified Development Code (UDC) amendment issues to housing. He stated the amendments would ensure the city’s zoning would be compliant with Federal and State law as well as case law. Planning Director McHarg noted that as part of ongoing litigation brought by Montana Fair Housing (MFH) against the City, Judge Christianson had recently decided that the Authorized Uses section of the UDC “discriminates against the handicapped on its face.” Because of that ruling, we must correct the UDC. A small portion of the amendments proposed as part of Ordinance 1838 were to provide these required corrections. However, the majority of the amendments have been initiated at the sole discretion of the City in the interests of improving compliance with applicable laws and expanding equal housing opportunities. The City has been in discussion about these amendments with MFH and has obtained a level of agreement with them. Planning Director McHarg stated there were three main components to the proposed amendment: 1) changes related to regulation of Community Residential Facilities (CRFs); 2) creation of a reasonable accommodation process; and, 3) changes to applicable definitions. Regarding changes related to regulation of CRFs, Planning Director McHarg directed the Zoning Commission members to the language of the state statute. He stated that CRFs with 8 residents or less must be regulated as residential occupancies pursuant of the statute. Regulations for CRFs with 9 or more residents were provided with greater levels of discretion. He noted the use tables and definitions would be specified to clearly identify the two discreet land use categories of CRFs with 8 residents or less and CRFs with 9 or more residents. He noted the assisted living category would be eliminated as it would be addressed with the amendment to the CRF definition. He noted which zoning districts would allow the community residential facilities either principally or conditionally, including residential, residential emphasis mixed use, commercial, and urban mixed use. Director McHarg explained the Reasonable Accommodation Procedure and noted it was similar to a variance request but was instead tied to an individual or household instead of to the land. He stated the process was applicable to the disabled and to members of a protected class (such as race, color, religion, sex, etc.). He noted that again, the accommodation would not be tied to the land but to a specific person or household; once that use of a property was discontinued by the individual with a disability or from a protected class, the accommodation would as well. He stated the individual group or household would make application to the Planning Department; if it was a Conditional Use Permit with a reasonable accommodation request it would require a public hearing and approval by that authority, otherwise it would be an administrative decision. Director McHarg stated no notice would be required unless the accommodation request was in conjunction with another application, in which case, the noticing requirements would default to the other type of application. He stated the ordinance was specific in identifying which records would need to be kept confidential or information would be redacted as necessary to protect the privacy rights of the applicant for the reasonable accommodation. He stated the information was 180 Page 3 of 5 Zoning Commission Minutes – August 7, 2012 outlined with a specific set of criteria within the code and could include ongoing verification and/or conditional approval of the request provided it was all tied to the underlying criteria for the reasonable accommodation. Director McHarg noted which definitions would be modified with the proposal. Director McHarg stated the Zoning Commission needed to make findings that the proposal was in keeping with the review criteria as well as all applicable state and federal law. He stated Staff found the proposal to be in keeping with the review criteria and recommended approval of the proposal. He noted no public comment had been received. Chairperson Garberg opened the item for public comment. Seeing none forthcoming, the public comment period was closed. MOTION: Mr. McSpadden moved, Vice Chairperson Wall seconded, that after having heard and considered public comment, to hereby adopt the findings presented in the Staff Report and to recommend approval of the text amendments to Chapter 38 of the Bozeman Municipal Code as included in draft Ordinance 1838 as requested in application #Z-12187. Mr. McSpadden noted he found the application complied with the 13 review criteria as outlined in the Staff Report and he adopted those findings as his own. The motion carried 3-0. Those voting aye being Chairperson Garberg, Mr. McSpadden, and Vice Chairperson Wall. Those voting nay being none. ITEM 5. NEW BUSINESS Mr. McHarg confirmed that he will be in touch with the County Planning Director as the Zoning Commission had discussed; likely not this week due to a planning conference. Mr. Wall noted the South Wallace ZMA had been approved and asked for clarification of the public testimony in opposition and if there were comments in support of the proposal. Mr. Carson stated there was public comment in support and though he did not think there was an individual from the public in support there had been a representative from the library. He noted there was a lot of talk about the entrance from Main Street with regard to right and left turning and removal of the pork chop was being discussed; those that lived east of town had to go the wrong way and turn around to get to the correct side of town. He noted there was a proposal to put a light in at Main Street and Broadway Avenue but a light at that intersection had not met the required MDT warrants. Director McHarg stated that any significant development on the South Wallace properties would require a traffic study. He also noted that there had been discussions with the owner of the Town Pump property that were coordinated with MDOT; if the site were redeveloped with the intensity proposed, the signalization of the Main/Broadway intersection would be required. Mr. Taylor added there were also discussions about parking related issues and how that would 181 Page 4 of 5 Zoning Commission Minutes – August 7, 2012 come about in addition to height discussions; he noted the lots were very narrow and noted he thought it would be interesting to see what was developed in that location. Mr. Wall stated he was concerned about the developers of the limited amount of developable properties on South Wallace if the City was not a party to the traffic study that would be required in that location. He stated the potential traffic issues could be attributed to the access to City property; he suggested the City should consider sharing the expense of the study. Director McHarg responded the traffic study was beyond the scope of the Zone Map Amendment discussion and suggested future discussions would include opportunities for cooperation and building a relationship to work together in the long term to mitigate those impacts whether it was parking or access or whatever other issues were identified. Mr. Wall asked if when a use was going into a space, there would be DRC review and a certificate of appropriateness from the Planning Department. Director McHarg responded there would be a requirement for review and approval from the Planning Department. Vice Chairperson Wall asked if any administrative decision could be appealed by an aggrieved neighbor. Director McHarg responded that any decision could be appealed. Chairperson Garberg suggested the Zoning Commission was going off task and suggested Director McHarg could finish the answer, but he thought it was outside of their purview. Vice Chairperson Wall respectfully disagreed that the discussion was off task and suggested the application they were discussing had already been reviewed by the Zoning Commission; he added that it was good for the community to see that the Zoning Commission was asking the questions identified through public comment, should they be watching. Director McHarg responded that it was a germane discussion as the more the Zoning Commission understood procedural requirements, the more effectively they would be able to consider zone map amendments and zone code amendments. Mr. McSpadden stated that Staff had done a really good job incorporating the Zoning Commission discussion into the City Commission discussion of the item. Director McHarg thanked Mr. McSpadden and indicated that presenting a full set of information to the City Commission was the task of Staff and the Zoning Commission. Mr. Taylor added he was pleased at the way the hearing had turned out. Mr. Wall stated that, in conclusion, he had struggled with a number of the 13 review criteria during the project’s review and he was still struggling with the traffic concerns in the area. He stated there was no doubt Bozeman had a beautiful library, but the adjacent properties were taking the impact. He would hope that when the City would be sensitive to the traffic issue and participate in the study. ITEM 6. ADJOURNMENT The Zoning Commission meeting was adjourned at 6:39 p.m. 182 Page 5 of 5 Zoning Commission Minutes – August 7, 2012 Erik Garberg, Chairperson Tim McHarg, Planning Director Zoning Commission Dept. of Planning & Community Development City of Bozeman City of Bozeman 183