HomeMy WebLinkAbout12 Loyal Garden Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Tom Rogers, AICP
Wendy Thomas, AICP, Director of Community Development
SUBJECT: A Subdivision Preliminary Plat of Loyal Garden Major Subdivision to
subdivide (replat) two existing lots to create six (6) Single Household
Residential Lots on 1.1735-acres. The property is generally located south
of Golden Gate Avenue, File P-13022.
MEETING DATE: October 7, 2013
AGENDA ITEM TYPE: Action – Quasi Judicial
RECOMMENDATION: That the City Commission conditionally approves the Preliminary Plat Application for the Amended Plat of Lots 3 & 4, Block 3, Loyal Garden Major Subdivision,
Phase 1A, File #P-13022, with the conditions listed in Planning Board Resolution #P-13022.
SUGGESTED MOTION: Having reviewed the application materials, considered public
comment, and the staff analysis, I hereby adopt the findings presented in the staff report for file #P-13022 and move to approve the preliminary plat application for the Amended Plat of Lots 3
& 4, Block 3, Loyal Garden Major Subdivision Phase 1A, authorizing the subdivision of 1.1735-
acres into six lots for single household construction subject to the conditions listed in Planning
Board Resolution #P-13022.
Staff report page references: conditions of approval, page 6; subdivision/findings criteria, page 10; code provisions, page 16.
BACKGROUND: Covenant Investment, Inc, represented by C&H Engineering and Surveying,
Inc., submitted preliminary plat application to subdivide two (2) existing lots totaling 1.1735-
acres to create six (6) single-household residential lots within the Loyal Garden Phase 1A
subdivision and remove the Restricted Size Lot (RSL) restriction on existing Lot 3. No variances are being requested with the application.
The subject property was originally platted as part of Loyal Garden Major Subdivision, Phase
1A, in 2007. All infrastructure and streets were constructed to City standards. During the pre-
application review the DRC granted numerous waivers to Section 38.41.060 “Additional
Subdivision Preliminary Plat Supplements” for several of the standard preliminary plat supplements because the subject property recently underwent subdivision review.
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A full and complete digital version of the preliminary plat application is available upon request
at the office of the Department of Community Development. Staff’s full analysis of the review
criteria for this minor subdivision is included in the attached staff report.
UNRESOLVED ISSUES: None ALTERNATIVES: 1. Approve the application with the recommended conditions;
2. Approve the application with modifications to the recommended
conditions;
3. Deny the application based on the Commission’s findings of non- compliance with the applicable criteria contained within the staff report; or
4. Open and continue the public hearing on the application, with
specific direction to staff or the applicant to supply additional
information or to address specific items. FISCAL EFFECTS: No significant fiscal effect is anticipated.
Attachments: Staff Report Application materials
Report compiled on: September 27, 2013
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P-13022, Staff Report for the AMENDED PLAT OF LOTS 3 & 4, BLOCK 3,
PHASE 1A, LOYAL GARDEN MAJOR SUBDIVISION
Date: City Commission meeting is on October 7, 2013
Item: A Subdivision Preliminary Plat of Loyal Garden Major Subdivision to subdivide (replat)
two existing lots to create six (6) Single Household Residential Lots on 1.1735-acres.
The property is generally located south of Golden Gate Avenue, File P13022.
Project Location: It is legally described as the Amended Plat of Lots 3 & 4, Block 3, Loyal
Garden Subdivision, Phase 1A, located in the Northeast One-Quarter (NE ¼) of Section
16, Township Two South (T2S), Range Five East (R5E), P.M.M. Gallatin County.
Recommendation: Approval with conditions
Report Date: Monday, September 30, 2013
TABLE OF CONTENTS
SECTION 1 - MAP SERIES .......................................................................................................... 2
SECTION 2 - RECOMMENDED CONDITIONS OF APPROVAL ............................................ 6
SECTION 3 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ........................ 7
SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS .............................................. 7
SECTION 5 - STAFF ANALYSIS................................................................................................. 8
Applicable Subdivision Review Criteria, Section 38.03.040, BMC................................... 8
Primary Subdivision Review Criteria, Section 76-3-608 Mont. Code Ann. .................... 11
Preliminary Plat Supplements ........................................................................................... 13
APPENDIX A –ADVISORY CODE CITATIONS ..................................................................... 16
APPENDIX B – PROJECT SITE ZONING AND GROWTH POLICY ..................................... 18
APPENDIX C – DETAILED PROJECT DESCRIPTION AND BACKGROUND.................... 19
APPENDIX D – NOTICING AND PUBLIC COMMENT ......................................................... 20
APPENDIX E –REQUESTED VARIANCES OR DEVIATIONS ............................................. 21
APPENDIX F – OWNER INFORMATION AND REVIEWING STAFF.................................. 22
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SECTION 1 - MAP SERIES
Figure 1: Vicinity Map showing adjacent zoning.
Surrounding Zoning and Land Uses:
North – The land across Golden Gate Avenue is zoned R-4 and includes a 3.74-acre parcel
within Block 1 of Loyal Garden Phase 1A Subdivision. As shown on the vicinity map above
the eastern portion of the northern boundary include land zoned R-O (Residential Office
District) which includes a sanitary sewer lift station.
East – Directly to the east are additional residential lots created by the Loyal Garden
subdivision. This area is zoned R-O. In addition, a lateral of the Farmers Canal passes
through the Loyal Garden park area and connects to headwaters of Baxter Creek.
South – On the south side of the alley are similar sized lots within the same zoning district.
Across Alpha drive are other residential lots partially developed within the R-2 (Residential
Medium Density District).
West –Other similar sized lots within the R-3 District. Beyond the Loyal Garden
Subdivision is County land. The County land is zoned A-S (Agricultural Suburban) which
requires a minimum lot size of 20-acres.
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SECTION 2 - RECOMMENDED CONDITIONS OF APPROVAL
Please note that these conditions are in addition to any required code provisions identified in this
report. Mandatory compliance with the explicit terms of Chapter 38, BMC does not constitute
conditions of approval. The conditions of approval may require compliance with more than the
minimum standards in order to conform to the physical and economic development of the City,
and to the safety and general welfare of the future lot owners and of the community at large. The
applicant must comply with all provisions of the Bozeman Municipal Code which are applicable
to this project.
Recommended Conditions of Approval:
1. The final plat shall conform to all requirements of the Bozeman Municipal Code (BMC) and the Uniform Standards for Final Subdivision Plats and shall be accompanied by all required documents, including certification from the City Engineer that as-built drawings
for public improvements were received, a platting certificate, and all required certificates.
The final plat application shall include three (3) signed reproducible copies on a 3 mil or
heavier stable base polyester film (or equivalent); two (2) digital copies; one (1) PDF copy; and five (5) paper prints. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way,
create a waiver or other relaxation of the lawful requirements of the BMC or State law.
2. The applicant shall submit with the application for final plat review and approval, a written
narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed, and shall include a digital copy (pdf) of the entire final plat submittal. This narrative shall be in sufficient detail to direct the reviewer
to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal.
3. The Restricted Size Lots (RSL) notation on Lot 3, Block3, Loyal Garden Phase 1A shall
terminate upon final plat approval of the Amended Plat of Lots 3 & 4, Block 3, Loyal Garden Subdivision, Phase 1A.
4. The final plat shall provide all necessary utility easements and shall be described,
dimensioned and shown on the final plat in their true and correct location. Any rear or side
yard utility easements not provided will require written confirmation from ALL utility
companies providing service indicating that rear or side yard easements are not needed.
5. All water and sewer service lines shall be located in the standard location as approved by the water/sewer superintendent.
6. Street cut permits shall be obtained for all work performed for the water and sewer service
line taps.
7. Golden Gate Avenue shall be returned to an acceptable condition once the water and sewer service line taps have been completed.
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SECTION 3 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS
None have been identified at this time.
SECTION 4 - RECOMMENDATION AND FUTURE ACTIONS
Project Name: Amended Plat of Lots 3 & 4, Block 3, Loyal Garden Major
Subdivision Preliminary Plat
File: P-13022
Development Review Committee
The Development Review Committee has reviewed the Preliminary Plat application on July 31,
August 7 and 14, 2013; and as a result, finds that the application, with conditions, is in general
compliance with the adopted growth policy, the Montana Subdivision and Platting Act and the
Unified Development Code. On August 14, 2013 the DRC recommended conditional approval
of the preliminary plat application.
Planning Board
The Planning Board public hearing occurred on September 17, 2013 to consider the preliminary
plat and forward a recommendation to the City Commission. The City of Bozeman Planning
Board, having heard and considered public comment, adopted the findings presented in the staff
report for P-13022 and voted 6-0 to recommend approval of the preliminary plat application for
the Amended Plat of Loyal Garden Phase 1A Major Subdivision. The Draft Planning Board
resolution is attached to this report.
City Commission
The City Commission is scheduled to consider this application at their regularly scheduled
hearing on Monday, October 7, 2013.
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SECTION 5 - STAFF ANALYSIS
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, and plans, public comment, and all other materials available during
the review period. Collectively this information is the record of the review. The analysis is a
summary of the completed review.
Applicable Subdivision Review Criteria, Section 38.03.040, BMC.
The site is within the Loyal Garden subdivision. All public infrastructure improvements (roads,
parks, water, sewer and storm water systems) except sidewalks have been constructed to City of
Bozeman standards around the perimeter of the property. In addition, the subject property is not
within an overlay district and does not have any applicable special use review criteria unique to
the project. The proposed subdivision appears to meet minimum design standards for subdivision
lots and access pursuant to Section 38.23.030, BMC. Staff has not identified code provisions
that are currently unmet by this application. The applicant must comply with all provisions of
the Bozeman Municipal Code, which are applicable to this project, prior to receiving final plat
approval. The applicant is advised that unmet code provisions, or code provisions that are not
specifically listed as conditions of approval, does not, in any way, create a waiver or other
relaxation of the lawful requirements of the Bozeman Municipal Code or State law.
In considering applications for subdivision approval under this title, the advisory boards and City
Commission shall consider the following:
1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and
Platting Act
The preliminary plat has been prepared in accordance with the survey requirements of the
Montana Subdivision and Platting Act by a Professional Engineer registered in the State of
Montana. As noted in recommended condition #1, the final plat must comply with State statute
and the Bozeman Municipal Code.
2) Compliance with the local subdivision regulations provided for in Part 5 of the
Montana Subdivision and Platting Act
1. Pursuant to Section 38.03.040.A.5(f), BMC, conditional approval of the preliminary plat
shall be in force for not more than two years for single-phased major subdivisions. Prior to
that expiration date, the applicant may submit a letter of request for the extension of the
period to the Planning Director for the City Commission’s consideration. The City Commission may, at the written request of the applicant, extend its approval for a mutually agreed upon time. More than one extension may be requested for a particular subdivision.
Each request shall be considered on its individual merits as provided for in Section
38.03.040.A.5(g), BMC.
2. Pursuant to Section 38.03.060.A.1, the applicant shall submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval has been satisfactorily addressed, and specifically (tab, page,
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paragraph, etc.) where this information can be found.
3. Pursuant to Section 38.23.060.A, all easements, existing and proposed, shall be accurately
depicted and addressed on the final plat and in the final plat application.
4. Pursuant to Section 38.27.090, executed waivers of right to protest the creation of special improvement districts (SIDs) for a park maintenance district will be required to be filed and
of record with the Gallatin County Clerk and Recorder.
5. Section 38.41.050.A.8 requires that any noxious weeds be identified and mapped by a
person with experience in weed management and knowledgeable in weed identification. A
noxious weed management and revegetation plan, approved by the County Weed Control District, shall be submitted with the final plat.
6. When applicable, the final covenants, conditions, restrictions and easements shall be
submitted with the final plat application for review and approval by the Department of
Community Development and shall contain, but not be limited to, the provisions required
in Section 38.38.020, BMC.
7. Pursuant to Section 38.39.010, if it is the developer’s intent to file the final plat prior to
installation, certification, and acceptance of all required improvements by the City of
Bozeman, an Improvements Agreement shall be entered into with the City of Bozeman
guaranteeing the completion of all improvements in accordance with the Preliminary Plat
submittal information and conditions of approval. If the final plat is filed prior to the installation of all improvements, the developer shall supply the City of Bozeman with an
acceptable method of security equal to 150 percent of the cost of the remaining
improvements.
3) Compliance with the local subdivision review procedures provided for in Part 6 of
the Montana Subdivision and Platting Act
A subdivision pre-application was submitted on May 22, 2013. The pre-application was
reviewed by the DRC on June 12, 2013 and summary review comments were forwarded to the
applicant in preparation of the preliminary plat application and granted numerous supplemental
information waivers under 38.41.060, BMC.
A preliminary plat application was submitted on July 8, 2013 and deemed acceptable for initial
review on July 22, 2013. The preliminary plat was reviewed by the DRC on July 31, August 7
and 14, 2013. On August 14, 2013 the DRC and Staff determined the submittal contained
detailed, supporting information that is sufficient to allow for the review of the proposed
subdivision.
Public notice for this application was placed in the Bozeman Daily Chronicle on Sunday,
September 1, 2013. The site was posted with a public notice on August 29, 2013. Public notice
was sent to physically adjacent property owners via certified mail, and to all other property
owners of record within 200 feet of the subject property via first class mail, on August 29, 2013.
No comment has been received on this matter at the time of production of this report.
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On September 12, 2013 this major subdivision staff report was drafted and forwarded with a
recommendation of conditional approval by the Planning Director for consideration by the
Planning Board which, as noted above, on September 17, 2013 recommended the City
Commission approve the application. The City Commission is scheduled to make a final
decision at their October 7, 2013 public hearing. The final decision for a Major Subdivision
Preliminary Plat must be made within 60 working days of the date it was deemed adequate or in
this case by November 6, 2013.
4) Compliance with Chapter 38, BMC and other relevant regulations
Based on review of the DRC and the Department of Community Development all applicable
regulations appear to be met. Pertinent code provisions and site specific requirements are
included in this report for City Commission consideration.
5) The provision of easements to and within the subdivision for the location and
installation of any necessary utilities
As noted under Staff Finding No. 2 above and required Section 38.23.060.A, all easements,
existing and proposed, shall be accurately depicted and addressed on the final plat and in the
final plat application. Therefore, all utilities and necessary utility easements will be provided
and depicted accordingly on the final plat.
6) The provision of legal and physical access to each parcel within the subdivision and
the notation of that access on the applicable plat and any instrument transferring the
parcel
All of the proposed lots have frontage to Golden Gate Avenue with lot frontage meeting
minimum standard shown on the preliminary plat. In addition, pursuant to Section 38.24.090.A,
BMC, plats shall contain a statement requiring lot accesses to be built to the standard contained
in this section, the city design standards and specifications policy, and the city modifications to
state public works standard specifications.
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Primary Subdivision Review Criteria, Section 76-3-608 Mont. Code Ann.
1) The effect on agriculture
The subject property is designated as a residential area according to the City of Bozeman
Community Plan. The area is zoned for residential development has previously undergone
subdivision review and approval and has begun to be developed. Therefore, this subsequent
subdivision will not have adverse effects on agriculture.
2) The effect on Agricultural water user facilities
Although the Farmer’s Canal is located to the south of the proposed subdivision and there is an
existing irrigation lateral to the east of the subject property the effects on the water user facilities
has been addressed with the previous subdivision and all necessary easements are in place.
Therefore, the proposed subdivision will have minimal impacts on agricultural water user
facilities.
3) The effect on Local services
Water/Sewer – Municipal water and sewer mains exist in the adjacent street right-of-ways. Each
lot will connect to the existing water and sewer mains designed to the appropriate design
standard shall be located in the standard location as approved by the water/sewer superintendent.
The proposed density is slightly less than was previously approved for the site therefore, little if
any additional impacts on local services will be caused by this subdivision.
Streets – The DRC has determined that the adjacent streets have capacity to accommodate this
development. Following new water and service line installations to accommodate the new
lots/development, the adjacent streets will be required to be repaired to City standards. All
street improvements will be constructed to acceptable City standards with curb, gutter,
pavement, boulevard sidewalks and storm water facilities.
Police/Fire – The property is located within the City’s Police and Fire emergency response area.
The subdivider must obtain addresses for the new lots from the City Engineer’s Office prior to
filing the final plat to facilitate emergency response to the site.
Stormwater – The standard requirement for a detailed review of the final grading and drainage
plan, and approval by the City Engineer, will be required as part of the infrastructure plan and
specification review process prior to final plat approval.
Parklands - The DRC waived the Parks & Recreation Facilities supplement based on the
parkland dedicated with the parent subdivision. No additional density is being proposed with
this subdivision. The Parks Master Plan approved for the parent subdivision provided 10.5-acres
of dedicated parkland located along the Farmer’s Canal and along Cottonwood Road. A formal
playground and park is located on the southwest corner of the subdivision while the eastern park
is designed as a more natural area with the ponds, wetlands, ditch, existing mature vegetation,
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benches, and trails. Please refer to the Parks & Trails Map on page 5 of this report for the general
location of the existing Parks & Recreation facilities.
4) The effect on the Natural environment
No significant physical or topographical features have been identified, (e.g., outcroppings,
geological formations, steep slopes), on the subject property. Provisions will be made to address
the control of noxious weeds and maintenance of the property and will be further addressed by
inclusion in the existing protective covenants and compliance with the recommended conditions
of approval.
5) The effect on Wildlife and wildlife habitat
The further subdivision of the existing lots will have minimal impacts on wildlife and wildlife
habitat. There are no known wildlife species on this property. The impacts to the more
important habitat areas were addressed and mitigated during the review of the Loyal Garden
subdivision and are preserved as open space and parklands. Finally, the project is in a
developing area identified for development.
6) The effect on Public health and safety
The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the
public health, safety and general welfare. The subdivision has been reviewed by the DRC which
has determined that it is in general compliance with the title. Any other conditions deemed
necessary to ensure compliance have been noted throughout this staff report. In addition, all
subdivisions must be reviewed against the criteria listed in 76-3-608.3.b-d, M.C.A. and as a
result, the Department of Community Development has reviewed this application against the
listed criteria and further provides the following summary for submittal materials and
requirements.
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Preliminary Plat Supplements
A subdivision pre-application plan review was completed by the DRC on June 12, 2013. With
the pre-application plan review application, waivers were requested by the applicant from
Section 38.41.060 “Additional Subdivision Preliminary Plat Supplements” for several of the
standard preliminary plat supplements due to the nature of this property. The DRC granted
partial waiver to the supplemental information under 38.41.060, BMC is granted with this pre-
application plan review application for: 1) surface water, 2) floodplains, 3) groundwater 4)
geology-soils-slopes, 5) vegetation, 6) wildlife, 7) historical features, 8) agriculture, 9)
agricultural water user facilities, 10) stormwater management, 11) Streets, Roads, and Alleys,
12) Educational Facilities, 13) Land Use, 14) Park and Recreation Facilities, 15) Neighborhood
Center Plan, 16) Lighting Plan, 17) Miscellaneous, and 18) affordable housing. All applicable
information not listed above and listed in 38.41.060 for review are still required with the
preliminary plat application. Staff offers the following summary comments on the supplemental
information required with Article 38.41, BMC.
38.41.060.A.1 Surface Water
There are no natural water systems, creeks, etc. on the subject property. A lateral of the Farmers
Ditch flow south to north and feeds the Baxter Creek headwaters is located within dedicated
open space across Golden gate Avenue to the east of the subject property. The existing ditch
easement and non-interference setbacks are not affected by this subdivision.
38.41.060.A.2 Floodplains
Supplemental information waived by the DRC. There are no floodplains or wetlands on or
within 100 feet of Lots 3 and 4. In addition, a notation attesting this fact is on the face of the
plat.
38.41.060.A.3 Groundwater
Supplemental information waived by the DRC. The subject property has previous undergone
subdivision review. The Applicant will provide the required notation on the face of the plat
stating that the groundwater table is relatively high within the subdivision and consultation with
a professional engineer is recommended prior to the construction of full or partial basements.
38.41.060.A.4 Geology, Soils and Slopes
Supplemental information waived by the DRC. The subject property has previous undergone
subdivision review. There are no known geologic hazards associated with the site. The property
is relatively flat minimizing geologic hazards.
38.41.060.A.5 Vegetation
Supplemental information waived by the DRC. No significant or critical vegetation exists on the
subject property. Noxious weeds are present and being controlled by the required Noxious Weed
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Management Plan. In addition, there is ongoing performance measure required with the Weed
Management Plan to insure control of noxious weeds on site.
38.41.060.A.6 Wildlife
Supplement information waived by the DRC. This is a developing urban area.
38.41.060.A.7 Historical Features
Supplemental information waived by the DRC. This is a developing urban area.
38.41.060.A.8 Agriculture
Supplemental information waived by the DRC. This is a developing area and this property is not
used for agriculture.
38.41.060.A.9 Agricultural Water User Facilities
Supplemental information waived by the DRC. This is a developing area and all necessary ditch
easements are in place.
38.41.060.A.10 Water and Sewer
Water for domestic and fire protection will be provided by connections to the City of Bozeman
water system. Public infrastructure improvements (roads, parks, water, and sewer) have been
constructed to City of Bozeman standards around the perimeter of the property. Water and sewer
lines have been extended to the property. The City Engineering Department has reviewed the
plans. City Engineering conditioned the subdivision that all water and sewer service lines shall
be located in the standard location as approved by the water/sewer superintendent.
38.41.060.A.11 Stormwater Management
Supplemental information waived by the DRC. This is in a developed urban area with on site
storm water control.
38.41.060.A.12 Streets, Roads and Alleys
Supplemental information waived by the DRC. This is in a developed urban area with all streets
and alleys constructed to City standards.
38.41.060.A.13 Utilities
Service providers have been planned to service the subdivision. Service providers indicated they
will be able to serve the additional demand. All utilities will be required to coordinate their
installation and location with the installation of the infrastructure.
38.41.060.A.14 Educational Facilities
Supplemental information waived by the DRC. No additional density is being proposed with
this subdivision.
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38.41.060.A.15 Land Use
Supplemental information waived by the DRC. The six proposed lots comply with the existing
zoning designation of R-3.
38.41.060.A.16 Parks and Recreation Facilities
Supplemental information waived by the DRC. Required parkland and recreation facilities were
dedicated with the parent subdivision.
38.41.060.A.17 Neighborhood Center Plan
Supplemental information waived by the DRC. A neighborhood center is not included with this
subdivision.
38.41.060.A.18 Lighting Plan
Supplemental information waived by the DRC. A neighborhood center is not included with this
subdivision. No additional lighting is proposed for this subdivision.
38.41.060.A.19 Miscellaneous
Supplemental information waived by the DRC. The subdivision will not impact access to any
public lands and there are no identified hazards in proximity to the subject property.
38.41.060.A.20 Affordable Housing
Supplemental information waived by the DRC. Workforce housing does not apply for
subdivisions creating less than 10 residential parcels. In addition, the Workforce Housing
Ordinance (Ordinance 1710) had been suspended by the City Commission.
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APPENDIX A –ADVISORY CODE CITATIONS
The following code provisions are identified for informational purposes as the project moves
forward. These will need to be addressed as part of the final site plan application or other process
step.
1. Section 38.28.060.A.3 requires a sign permit to be obtained prior to establishing a
subdivision identification sign or other permanent sign.
2. Section 38.39.030 requires that the applicant shall provide for private improvements
certification by the architect, landscape architect, engineer and other applicable professionals
that all improvements including, but not limited to landscaping, ADA accessibility
requirements, private infrastructure, or other requirement elements were installed in
accordance with the approved site plan, plans and specifications. For your information. This
will be required prior to occupancy following construction.
3. The final plat shall conform to all requirements of the Bozeman Municipal Code (BMC) and
the Uniform Standards for Final Subdivision Plats and shall be accompanied by all required
documents, including certification from the City Engineer that as-built drawings for public
improvements were received, a platting certificate, and all required certificates. The final
plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable
base polyester film (or equivalent); two (2) digital copies; one (1) PDF copy; and five (5)
paper prints. The applicant is advised that unmet code provisions, or code provisions that are
not specifically listed as conditions of approval, does not, in any way, create a waiver or
other relaxation of the lawful requirements of the BMC or State law.
4. The applicant shall submit with the application for final plat review and approval, a written
narrative stating how each of the conditions of preliminary plat approval and noted code
provisions have been satisfactorily addressed, and shall include a digital copy (pdf) of the
entire final plat submittal. This narrative shall be in sufficient detail to direct the reviewer to
the appropriate plat, plan, sheet, note, covenant, etc. in the submittal.
5. The final plat shall provide all necessary utility easements and shall be described,
dimensioned and shown on the final plat in their true and correct location. Any rear or side
yard utility easements not provided will require written confirmation from ALL utility
companies providing service indicating that rear or side yard easements are not needed.
6. Section 38.26.070 “Landscaping of Public Lands” – Installation by the developer of
vegetative ground cover, boulevard trees, and irrigation system in the public right-of-way
boulevard strips along all external perimeter development streets or other open space areas is
required with the final plat application.
7. All construction activities shall comply with section 38.39.020.A.2 of the Unified
Development Code. This shall include routine cleaning/sweeping of material that is dragged
to adjacent streets. The City may require a guarantee as allowed for under this section at any
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time during the construction to ensure any damages or cleaning that are required are
complete. The developer shall be responsible to reimburse the City for all costs associated
with the work if it becomes necessary for the City to correct any problems that are identified.
8. All water and sewer service lines shall be located in the standard location as approved by the
water/sewer superintendent.
9. Street cut permits shall be obtained for all work performed for the water and sewer service
line taps.
10. Golden Gate Avenue shall be returned to an acceptable condition once the water and sewer
service line taps have been completed.
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APPENDIX B – PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses:
The subject property is zoned “R-3” (Residential Medium Density District). The intent of the R-
3 residential medium density district is to provide for the development of one- to five-household
residential structures near service facilities within the city. It should provide for a variety of
housing types to serve the varied needs of households of different size, age and character, while
reducing the adverse effect of nonresidential uses.
Pursuant to Section 38.08.080, BMC, minimum net density in the R-3 District is five dwellings
per net acre. A minimum is required to support efficiency in use of land and provision of
municipal services, and to advance the purposes and goals of this chapter and the adopted growth
policy. The Applicant calculated the dwelling unit density for the entire A1 Phase to be 7.58
dwelling units per acre. The density for area within the amended plat is 5.13 per acre.
Adopted Growth Policy Designation:
The property is designated as “Residential” in the Bozeman Community Plan. The Plan
indicates that “This category designates places where the primary activity is urban density
dwellings. Other uses which complement residences are also acceptable such as parks, low
intensity home based occupations, fire stations, churches, and schools. High density residential
areas should be established in close proximity to commercial centers to facilitate the provision of
services and employment opportunities to persons without requiring the use of an automobile.
Implementation of this category by residential zoning should provide for and coordinate
intensive residential uses in proximity to commercial centers. The residential designation
indicates that it is expected that development will occur within municipal boundaries, which may
require annexation prior to development.”
The dwelling unit density expected within this classification varies between 6 and 32 dwellings per
net acre.
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P-13022, Staff Report for the AMENDED PLAT OF LOYAL GARDEN SUBDIVISION Page 19 of 22
APPENDIX C – DETAILED PROJECT DESCRIPTION AND BACKGROUND
Project Description
The proposal is to subdivide two (2) existing parcels totaling 1.17-acres to create 6 single-
household residential lots within the Loyal Garden Phase 1A subdivision to create six (6) single
household residential lots and remove the Restricted Size Lot (RSL) restriction on existing Lot 3.
No variances are being requested with the application.
Project Background
The subject property was originally platted as part of Loyal garden Major Subdivision, Phase 1A,
in 2007. All infrastructure and streets were constructed to City standards. During the pre-
application review the DRC granted numerous waivers to Section 38.41.060 “Additional
Subdivision Preliminary Plat Supplements” for several of the standard preliminary plat
supplements due to the nature of this property.
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P-13022, Staff Report for the AMENDED PLAT OF LOYAL GARDEN SUBDIVISION Page 20 of 22
APPENDIX D – NOTICING AND PUBLIC COMMENT
A subdivision pre-application was submitted on May 22, 2013. The pre-application was
reviewed by the D.R.C. on June 12, 2013 and summary review comments were forwarded to the
applicant in preparation of the preliminary plat application and granted numerous supplemental
information waivers under 38.41.060, BMC.
A complete preliminary plat application was submitted on July 8, 2013 and deemed acceptable
for initial review on July 22, 2013 after omitted submittal materials were received by the
Department. The preliminary plat was reviewed by the DRC on July 31, August 7 and 14, 2013.
On August 13, 2013 the DRC and Staff determined the submittal contained detailed, supporting
information that is sufficient to allow for the review of the proposed subdivision.
Public notice for this application was placed in the Bozeman Daily Chronicle on Sunday,
September 1, 2013. The site was posted with a public notice on August 29, 2013. Public notice
was sent to adjacent property owners via certified mail, and to all other property owners of
record within 200 feet of the subject property via first class mail, on August 29, 2013. No
comment has been received as of the production of this report.
On September 12, 2013 this major subdivision staff report was drafted and forwarded with a
recommendation of conditional approval by the Planning Director for consideration by the
Planning Board and City Commission. The City Commission is scheduled to make a final
decision at their October 7, 2013 public hearing. The final decision for a Major Subdivision
Preliminary Plat must be made within 60 working days of the date it was deemed complete or in
this case by November 6, 2013.
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P-13022, Staff Report for the AMENDED PLAT OF LOYAL GARDEN SUBDIVISION Page 21 of 22
APPENDIX E –REQUESTED VARIANCES OR DEVIATIONS
No variances have been requested. All other design requirements of the BMC have been met.
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P-13022, Staff Report for the AMENDED PLAT OF LOYAL GARDEN SUBDIVISION Page 22 of 22
APPENDIX F – OWNER INFORMATION AND REVIEWING STAFF
Owner/Applicant: Covenant Investment, Inc, P.O. Box 11428, Bozeman MT 59771
Representative: C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman,
MT 59718
Report By: Tom Rogers, AICP, Department of Community Development
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The Amended Plat of Lot 3 & 4, Block 3, Phase 1A, Loyal Garden Subdivision
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RESOLUTION #P-13022
RESOLUTION OF THE CITY OF BOZEMAN PLANNING BOARD REGARDING A MAJOR SUBDIVISION PRELIMINARY PLAT APPLICATION TO SUBDIVIDE (REPLAT) 2 EXISTING LOTS CONTAINING APPROXIMATELY 1.1735 ACRES, LOCATED ON GOLDEN GATE AVENUE INTO SIX RESIDENTIAL SINGLE
HOUSEHOLD LOTS ON PROPERTY DESCRIBED AS THE AMENDED PLAT OF
LOTS 3 & 4, BLOCK 3, LOYAL GARDEN SUBDIVISION, PHASE 1A, LOCATED IN THE NORTHEAST ONE-QUARTER (NE ¼) OF SECTION 16, TOWNSHIP TWO SOUTH (T2S), RANGE FIVE EAST (R5E), P.M.M. GALLATIN COUNTY, MONTANA.
WHEREAS, the City of Bozeman has adopted a growth policy pursuant to Section 76-1-
601, M.C.A.; and
WHEREAS, the City of Bozeman Planning Board has been created by Resolution of the
Bozeman City Commission as provided for in Title 76-1-101, M.C.A.; and
WHEREAS, the property owner Covenant Investments, Inc., P.O. Box 11428, Bozeman,
MT represented by C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman,
MT 59718 submitted a Major Subdivision Preliminary Plat Application to subdivide (replat) two existing lots containing approximately 1.1735-acres into six residential single-household lots on
property described as the Amended Plat of Lots 3 & 4, Block 3, Loyal Garden Subdivision,
Phase 1A, located in the Northeast One-Quarter (NE ¼) of Section 16, Township Two South
(T2S), Range Five East (R5E), P.M.M. Gallatin County, Montana; and
WHEREAS, the proposed Major Subdivision Preliminary Plat Application has been properly submitted, reviewed, and advertised in accordance with the procedures of Section 38.03
of the Bozeman Unified Development Code; and
WHEREAS, the City of Bozeman Planning Board held a public hearing on Tuesday,
September 17, 2013, to review the application and any written public testimony on the request
for said Major Subdivision Preliminary Plat Application; and
WHEREAS, one member of the general public provided oral testimony on the matter of
the preliminary plat application supporting the action stating it would improve the neighborhood
and property values; and
WHEREAS, members of the City of Bozeman Planning Board discussed the proposed
preliminary plat application in regards to the character of the area and the intent of the subdivision and zoning district; and
WHEREAS, the City of Bozeman Planning Board moved to recommend approval of the
preliminary plat application with the recommended conditions of approval provided in the staff
report; and
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The Amended Plat of Lot 3 & 4, Block 3, Phase 1A, Loyal Garden Subdivision
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WHEREAS, the City of Bozeman Planning Board reviewed the application against the
requirements of the Montana Subdivision and Platting Act and found that, with conditions, the
Major Subdivision Preliminary Plat Application would comply with those requirements; and
NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City of Bozeman
Planning Board, having heard and considered public comment, adopted the findings presented in the staff report for P-13022 and voted 6-0 to recommend approval of the preliminary plat
application for the Amended Plat of Loyal Garden Phase 1A Major Subdivision authorizing to
subdivide (replat) Lot 3 & 4, Block 3, containing approximately 1.1735-acres, into six (6) six
residential single-household lots subject to the following conditions:
1. The final plat shall conform to all requirements of the Bozeman Municipal Code (BMC)
and the Uniform Standards for Final Subdivision Plats and shall be accompanied by all
required documents, including certification from the City Engineer that as-built drawings
for public improvements were received, a platting certificate, and all required certificates.
The final plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent); two (2) digital copies; one (1) PDF copy;
and five (5) paper prints. The applicant is advised that unmet code provisions, or code
provisions that are not specifically listed as conditions of approval, does not, in any way,
create a waiver or other relaxation of the lawful requirements of the BMC or State law.
2. The applicant shall submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code
provisions have been satisfactorily addressed, and shall include a digital copy (pdf) of the
entire final plat submittal. This narrative shall be in sufficient detail to direct the reviewer
to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal.
3. The Restricted Size Lots (RSL) notation on Lot 3, Block3, Loyal Garden Phase 1A shall terminate upon final plat approval of the Amended Plat of Lots 3 & 4, Block 3, Loyal
Garden Subdivision, Phase 1A.
4. The final plat shall provide all necessary utility easements and shall be described,
dimensioned and shown on the final plat in their true and correct location. Any rear or side
yard utility easements not provided will require written confirmation from ALL utility companies providing service indicating that rear or side yard easements are not needed.
5. All water and sewer service lines shall be located in the standard location as approved by
the water/sewer superintendent.
6. Street cut permits shall be obtained for all work performed for the water and sewer service
line taps.
7. Golden Gate Avenue shall be returned to an acceptable condition once the water and sewer
service line taps have been completed.
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The Amended Plat of Lot 3 & 4, Block 3, Phase 1A, Loyal Garden Subdivision
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DATED THIS DAY OF , 2013 Resolution #P-13022
_____________________________ ____________________________ Tom Rogers, AICP Erik Garberg, Chairperson
Department of Community Development City of Bozeman Planning Board
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TABLE OF CONTENTS
1. Table of Contents
2. Development Review Application
3. Preliminary Plat Checklist
4. Introduction
5. Preliminary Plat Supplements Required for All Subdivisions
A. Adjoining Property Owners List and Certification
B. USGS Vicinity Map
C. 11”x17” Preliminary Plat Map
D. Net Residential Density Calculation
E. Preliminary Platting Certificate
F. Copy of Noxious Weed Management and Revegetation Plan
G. Copy of Subdivision Covenants (current covenants run with the land)
6. Additional Subdivision Preliminary Plat Supplements*
*A brief summary review of each preliminary plat supplement listed in Section 38.41.060
of the Bozeman Unified Development Code is included in this section. Waivers were
granted during the pre-application review to allow the inclusion of supplements previously
provided in full with the original preliminary plat for Loyal Garden Subdivision. Electronic
copies of the original Loyal Garden preliminary plat supplements are provided.
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Introduction
This proposal includes the subdivision of Lots 3 and 4, Block 3 of Loyal Garden Subdivision,
Phase 1A into six single family residential lots. The property is situated in the northeast quarter of
Section 16, Township 2 South, Range 5 East of P.M.M., City of Bozeman, Gallatin County,
Montana.
Lots 3 and 4 were originally created in 2007 with the filing of Loyal Garden Subdivision, Phase
1A. The two lots contain 1.1735 acres of land located approximately 150 feet northwest of the
intersection of Golden Gate Avenue and Alpha Drive. The property has a zoning designation of
R-3 (Residential Medium Density) and was originally intended to be a multi-family development
(Lot 3 was originally designated as a Restricted Size Lot) with an overall density slightly greater
than what is proposed with this project. The current covenants for the subdivision will run with the
property.
Public infrastructure improvements (roads, parks, water, sewer and storm sewer) have been
constructed to City of Bozeman standards around the perimeter of the property. Water and sewer
service lines have been extended to the property. Wherever possible these service lines will be
utilized. Service lines will need to be constructed for one of the proposed lots.
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Subdivision Preliminary Plat
#13344
The net residential density for the Loyal Garden Subdivision is calculated below to ensure
densities remain consistent with the original objectives of the subdivision. The land areas for
the entire subdivision (Phases 1A and 1B) are detailed below:
Loyal Garden Subdivision Land Areas (SQ. FT. as per Phase 1A and 1B plats)
LOTS OPEN
SPACE
PARK TOTAL
BLOCK 1 418,282 170,327 - 588,609
BLOCK 2 - - 284,741 284,741
BLOCK 3 152,113 10,405 - 162,518
BLOCK 4 184,056 10,400 - 194,456
BLOCK 5 204,576 18,720 - 223,296
BLOCK 6 234,863 10,400 - 245,263
BLOCK 7 245,166 10,980 - 256,146
BLOCK 8 67,525 16,236 - 83,761
BLOCK 9 55,737 6,000 - 61,737
BLOCK 10 58,042 6,000 - 64,042
BLOCK 11 - - 240,208 240,208
SUBTOTAL 1,620,360 259,468 524,949 2,404,777
SUBTOTAL (acres) 37.20 5.96 12.05 55.21
STREETS/ALLEYS 864,127 19.84 acres
TOTAL 3,268,904 75.04 acres
The net residential density is calculated using the following equation from Sec.38.42.2020 of
the Bozeman Municipal Code (BMC):
=− ( + + + + )
Where:
D = Residential density
du = Total number of dwelling units in project
A = Total site area (acres)
c = Total commercial land area (acres)
i = Total industrial land area (acres)
s = Reserved but undedicated school or park sites (acres)
a = Street, public or private, rights-of-way and easements (acres)
d = Dedicated park lands, conservation easements, or common open
space (acres)
There are 158 total lots in the subdivision, including the six (6) proposed with this submittal
(154 lots zoned R-1, -2 or -3; 1 lot zoned R-4; 3 lots zoned R-0). The original subdivision
covenants established maximum number of dwelling units for individual lots. In total, 50 lots
are permitted to have accessory dwelling units (including the 6 proposed lots), 9 lots are
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Subdivision Preliminary Plat
#13344
permitted to have 2 dwelling units, 4 lots (zoned R-4 and R-0) are subject to City of
Bozeman zoning regulations/approval and the Loyal Garden Design Review Board
review/approval, and the remaining 95 lots are to only have 1 dwelling unit. Minimum
densities as defined in Sec. 38.08.080 of the BMC were applied to the R-4 (8 units per acre)
and R-O (6 units per acre) lots for purposes of this calculation. Therefore:
=(1..× 101 )+(2..× 59 )+ (8../ × 3.73) + (6../ × 5.48 )
du = 282 dwelling units
The net residential density is calculated as follows:
=282..
75.04 −(5.96 + 12.05 + 19.84 )
= 7.58../
With the proposed subdivision, the net residential density for the entire Loyal Garden
Subdivision would be 7.58 dwelling units per acre.
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Mail Original to:
DeWin Madill
Covenant Investments, Inc.
P.O. Box 11428
Bozeman, MT 59719
CCOOVVEENNAANNTTSS
Prepared By:
Intrinsik Architecture, Inc. &
Susan B. Swimley, Attorney & Counselor at Law
Prepared For:
Covenant Investments, Inc.
Date: ____________________
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CCOOVVEENNAANNTTSS
Table of Contents
Name Page
Article 1: Purpose 4
Article 2: Property Subject to Covenants 4
Article 3: Relationship to other Documents
3.1 Local Land Use Regulations 4
3.2 Loyal Garden Neighborhood Association Bylaws 4
3.3 Loyal Garden Development Manual 4
Article 4: Neighborhood Association
4.1 Membership 5
4.2 Board of Directors 5
4.3 Meetings & Voting 6
4.4 Annual & Special Assessments 6
4.5 Term 8
Article 5: General Restrictions & Notices
5.1 General Use 9
5.2 Restricted Size Lots & Units 10
5.3 Notice of Adjacent Agricultural Uses 10
5.4 Notice of Water Features 11
5.5 Weed Control 11
5.6 Garbage 12
5.7 Sidewalks 12
Article 6: Common Areas
6.1 Use 12
6.2 Control and Management 13
6.3 Maintenance 13
6.4 Maintenance Guarantee 13
Article 7: Enforcement
7.1 Enforcement 15
7.2 Fine Schedule 16
7.3 Dispute Resolution 16
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Article 8: Amendments 17
Article 9: Definitions 18
Exhibit A: Legal Description of Subdivision 21
Exhibit B: Legal Description of Shared Spaces 22
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DECLARATION OF PROTECTIVE COVENANTS & RESTRICTIONS
FOR LOYAL GARDEN
THIS DECLARATION OF PROTECTIVE COVENANTS is made this ______ day of
____________, 2007, by Covenant Investments, Inc.,
hereinafter referred to as "Declarant";
W I T N E S S E T H :
WHEREAS, Declarant is the owner of the following described property situated in
Gallatin County, Montana:
See exhibits attached hereto and by this reference made a part hereof;
WHEREAS, Declarant intends to develop, sell and convey the above-described
real property, hereinafter referred to as "Loyal Garden"; and,
WHEREAS, Declarant desires to subject all of said real property, together with the
lots, phases and subdivisions contained therein, to the covenants, conditions, restrictions
and reservations herein set forth and referred to as "Covenants”; and
WHEREAS, Declarant intends to develop Loyal Garden in phases with each phase
automatically subject to these covenants with the filing of each final plat;
NOW, THEREFORE, Declarant does hereby establish, dedicate, declare, publish
and impose upon the property the following Protective and Restrictive Covenants,
which shall run with the land, and shall be binding upon and be for the benefit of all
persons claiming such property, their grantors, legal representatives, heirs, successors
and assigns, and shall be for the purpose of maintaining a uniform and stable value,
character, architectural design, use, and development of the property. Such Covenants
shall apply to the entire property, and all improvements placed or erected thereon,
unless otherwise specifically accepted herein. The Covenants shall inure to and pass
with each and every parcel, tract, lot or division.
Said Covenants shall be as follows:
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Article 1: Purpose
The purpose of these covenants is to protect and enhance the value of the Loyal
Garden Neighborhood and to provide for the maintenance of shared common areas.
Article 2: Property Subject to Covenants
These Covenants shall apply to the entire seventy-five (75+/-) acres described in Exhibit
A, including all phases as each receives final subdivision plat approval from the City of
Bozeman, and all improvements placed or erected thereon, unless otherwise specifically
accepted herein. The Covenants shall inure to and pass with each and every parcel,
tract, lot or division.
Article 3: Relationship to other Documents
3.1 Local Land Use Regulations
All zoning, land use regulations and other laws, rules and regulations of any
governing body or agency with jurisdiction over the Loyal Garden
Neighborhood shall be in full force and effect, including amendments thereto, in
addition to these covenants. All owners of land in Loyal Garden Neighborhood
shall be subject to those regulations, laws, rules and regulations. The Bozeman
Unified Development Ordinance (UDO) can be found online at
www.bozeman.net.
In the event there is a conflict between the Covenants or Development Manual
and any land use regulations, the most restrictive provision shall control.
3.2 Loyal Garden Neighborhood Association Bylaws
The procedures and processes for the Loyal Garden Neighborhood Association
are outlined in a separate document entitled “Loyal Garden Neighborhood
Association Bylaws” which is authorized by the filing of these covenants and can
be found online at www.loyalgarden.com. The Association Bylaws have a
separate provision for amendments.
3.3 Loyal Garden Development Manual
The procedures and processes for the Loyal Garden Design Review Board
(LGDRB) and for all development within Loyal Garden are outlined in a separate
document entitled “Loyal Garden Development Manual” which is authorized by
the filing of these covenants and can be found online at www.loyalgarden.com.
The Development Manual has a separate provision for amendments.
All development and construction, including but not limited to buildings and site
improvements (such as fencing and landscaping), shall comply with the Loyal
Garden Development Manual. It is the responsibility of the property owner to
ensure that he/she has the most recent copy of the Loyal Garden Development
Manual. An application shall be processed consistent with the Development
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Manual that is in effect thirty (30) days prior to LGDRB receipt of a complete Form
A submittal.
Article 4: Neighborhood Association
4.1 Membership
An association, which may be incorporated, is hereby established known as
"Loyal Garden Neighborhood Association" hereinafter referred to as the
"Association." The Association shall elect a five-member Board of Directors.
Every owner or contract purchaser of a lot or unit shall be a member of the Loyal
Garden Neighborhood Association. Membership shall be appurtenant to and
may not be separate from the ownership of any lot or unit. Each Owner shall be
responsible to advise the Association of the Owner's current mailing address and
any changes to that address. Upon transfer of any Loyal Garden lot, the Owner is
responsible for advising the Association of the name and address of the new
Owner. The address of the Association shall be: P.O. Box 11428, Bozeman MT
59719. The address of the Association may be changed by the Board of Directors
upon notice to the owners.
For the purpose of determining membership, at any meeting a person or entity
shall be deemed to be a member upon the recording of a duly executed deed to
that owner, or upon the recording of a Notice of Purchaser's Interest or an
Abstract of Contract for Deed showing a contract purchase by an owner. The
legal title retained by the vendor selling under contract shall not qualify such
vendor for membership. Nothing contained herein shall grant multiple owners of
a single lot more than one vote per lot.
Foreclosure of a mortgage, trust indenture or the termination or foreclosure of a
contract for deed wherein title is vested in the mortgage, beneficiary or original
seller on a contract, or repossession for any reason of a lot or unit sold under a
contract shall terminate the vendee's membership, whereupon all rights to such
membership shall vest in the legal owner.
4.2 Board of Directors
The Board of Directors shall have the power and responsibility of acting on
behalf of the Association and its members as shall be reasonably necessary to
carry out the purposes of the Association, including but not limited to take such
actions as shall be necessary or reasonable to care for, protect and maintain the
parks, medians, easements, boundary fences, drainage easements, and open
space; to enforce these Covenants; to collect assessments and fines; to adopt a
fine schedule; to set annual and/or special meetings; and to act in any other
matters set forth herein or which may serve the development, including the
formation of special improvement districts, either public or private, for such
improvements as the Association shall approve. The Directors shall act by
majority vote.
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The Board of Directors shall serve for a term to be set by a simple majority of the
membership, which shall not be for less than one year. Each director shall serve
until replaced by his or her successor. The Board of Directors shall serve for a term
as set by the Bylaws and which may be modified according to the amendment
procedures set forth in the Bylaws. The staggering of terms shall be accomplished
as set forth in the Bylaws. Any vacancy on the Board of Directors occurring
before the next annual meeting of the members shall be filled by the remaining
directors. A vacancy in any office of the Association shall be filled by appointment
by the Board of Directors until the next annual meeting or the successor is duly
appointed or elected.
4.3 Meetings & Voting
Meetings and voting shall occur as specified in the Loyal Garden Neighborhood
Association Bylaws.
4.4 Annual & Special Assessments
The purpose of annual and specials assessments levied by the Association are to
promote the recreation, health, safety, convenience and welfare of the owners,
including but not limited to the improvement, repair, operation, and
maintenance of easements, and common areas, community and park street
lights, and for any other purposes, expressed or implied, in these Covenants.
Each owner, whether or not it shall be so expressed in any deed or contract, is
deemed to have agreed to these Covenants, and to pay to the Association:
Annual assessments or charges and fines as may be adopted by the Board
of Directors; and
Special assessments for capital improvements, such assessments to be
established and collected as hereinafter provided.
The annual and special assessments, together with interest, costs and reasonable
attorney's fees, shall be a charge on the land, and shall be a continuing lien upon
the property against which each such assessment is made. Each assessment,
together with the interest, costs and reasonable attorney's fees, shall be the
personal obligation of the owner of such property at the time when the
assessments are due. Assessments shall begin to accrue upon closing on the
purchase of a lot.
The following subsections address the details of assessments:
(a) Amount and Approval of Assessments
The maximum assessment per lot which may be made by the Association
in every calendar year shall not substantially exceed the projected and
budgeted actual and reasonable costs to be incurred by the Association
during the coming year in carrying out the purposes herein set forth, and
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may include a reasonable reserve. The amount of the annual assessments
shall be fixed by the Board of Directors of the Association in the following
manner:
At each annual meeting of the members of the Association, the Directors
shall present a proposed budget of the estimated expenses and reserves
for the Association for the coming year to the members for review,
discussion, amendment, comment and approval. The members shall
approve or amend the proposed budget by a majority vote of the
members present or voting by proxy. After the annual meeting, the Board
of Directors shall set the amount of the assessments and the date(s) due
for the coming year to cover the budget approved in the manner herein
set forth.
(b) Special Assessments for Capital Improvements.
In addition to the annual assessments authorized above, the Association
may levy special assessments for the purpose of defraying, in whole or in
part, the cost of any construction, reconstruction, or other capital
improvements on the properties and open space, including fixtures and
personal property related thereto, provided that any such assessment shall
have the approval of two-thirds (2/3) or more of all of the votes of the
members who are present, in person or by proxy, at a meeting duly called
for that purpose. Special assessments may be levied to be paid over one or
more years. Assessments for normal maintenance and repairs shall not
require two-thirds (2/3) vote.
(c) Uniform Rate of Assessment.
Annual assessments shall be fixed by the Directors at a uniform rate for
each lot. The assessments may be collected on a monthly, quarterly or
annual basis, or any other regular basis as shall be determined by the
Board of Directors of the Association. Special assessments shall be fixed at
the same rate for each lot affected by the special assessments. Different
rates of annual or special assessments may be set for different phases of
the Loyal Garden development. Notwithstanding anything contained
herein to the contrary, Declarant will not be assessed any annual or special
assessment for unimproved lots owned by Declarant.
(d) Date of Commencement of Annual Assessments: Due Dates.
Except as herein provided, the annual and special assessments provided
for herein shall be due on the date determined by the Board of Directors.
The Board of Directors shall fix the amount of the annual assessments
against each lot at least thirty (30) days in advance of the due date of each
annual assessment, and at least ninety (90) days in advance of a special
assessment. Written notice of the annual and special assessments shall be
mailed to every member subject thereto, at their last known mailing
address.
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(e) Effect of Nonpayment of Assessments: Remedies of the Association.
Any assessment, charges or fines not paid within thirty days after the due
date shall bear interest from the due date at the rate of ten (10) percent
per annum which shall, without notice to the lot owner, automatically
become a lien against the lot and shall increase without notice to the lot
owner. The Association may bring an action at law against the owners
obligated to pay the same or a foreclosure action for collection of the lien
against the property. No owner may waive or otherwise escape liability for
the assessments provided for herein by non-use of the open space or by
abandonment of their lot.
Thirty (30) days after the delivery of the notice of assessment, the
assessment shall be a lien upon the owner's lot until paid. The Association
may record a notice of the lien with the Clerk and Recorder of Gallatin
County, Montana. In the event of non-payment within thirty (30) days
after the recording of the notice of lien, the Association may foreclose the
lien in the manner set forth under Montana law for the foreclosure of liens
against real property. The Association is entitled to collect during an action
for delinquent assessments any and all reasonable attorney fees and costs
accrued prior to and in association with the collection of delinquent
assessments. Delivery shall be the date upon which the Notice of
Assessment is mailed to the lot owner at the address on file with the
Association.
(f) Sale or Transfer of a Lot.
The sale, transfer or encumbrance of any lot shall not affect the
assessment lien or the personal liability of the owner responsible for the
assessment. No sale or transfer to a third party with actual or constructive
knowledge of an assessment shall relieve such new owner from the
liability for any outstanding assessments, or from any assessments
thereafter becoming due, or from the recorded lien thereof. A person or
entity purchasing a lot shall be responsible for checking with the
Association for any outstanding assessments against said lot before the
closing upon the purchase.
(g) Annual Assessment and Condominium Assessment.
Any owner assessed hereunder may be subject to an additional
assessment of an applicable condominium association assessed and
collected pursuant to the condominium declarations, by laws and
association documents. Payment of an applicable condominium
assessment does not alleviate or offset the Loyal Garden assessment.
4.5 Term
Until 120 of the lots in Loyal Garden, as described in Exhibit A, have been sold,
the Declarant shall have the right to appoint the Board of Directors, who shall
not be required to be lot owners or members of the Association.
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Article 5: General Restrictions & Notices
5.1 General Use Restrictions
The following general use restrictions shall apply to Loyal Garden:
(a) No construction, development, excavation, landscaping, or like
activities shall occur on any lot within Loyal Garden without prior
written approval from the Loyal Garden Design Review Board
(LGDRB).
(b) No hunting of, shooting at or harassing of birds, animals or any wildlife
will be permitted. Skunks, gophers and rodents may be trapped;
however, poison may not be used.
(c) No livestock, poultry or other animals, except dogs, cats or small in-
house pets, are permitted on the properties. All dogs, cats and other
pets shall be strictly controlled by their owners so as not to annoy or
interfere with the use of the properties by the other owners and to
prevent any interference or harassment of wild birds or animals in the
subdivision or on surrounding or adjacent properties. Dogs and cats
shall be kept on the owner's property and shall not be allowed to roam
free.
(d) Recreational vehicles, boats, trailers, snowmobiles, and other rolling
equipment other than automobiles and pick up trucks shall not be
stored in open view on any residential lot, driveway, or road. Parked
cars shall not obstruct pedestrian traffic. Vehicles parked in violation of
these covenants will be notified by means of a verbal notice to the
vehicle owner or verbal notice to the lot owner, or by written notice
from the LGDRB stating that the vehicle is in violation of these
covenants and requesting immediate removal of the vehicle. If the
violation is not corrected within twenty-four (24) hours of notification,
the LGDRB may cause the vehicle to be towed and impounded at the
expense of the vehicle’s owner. The Homeowner’s Association may
cause a vehicle to be towed immediately without notification if the
LGDRB determines the vehicle impedes emergency vehicles or, in any
way, represents a threat to health and safety.
(e) City sewer and water lines, power, natural gas, cable television, and
telephone primary service lines are provided to each lot. However,
each lot owner is responsible for the costs of connecting to the main
utility lines to his or her improvements from the primary line near his or
her lot, including any additions to the primary line that may be
required by location of the improvements on the lot. All utility lines
shall be underground.
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(f) No signs shall be erected on the property or lot thereof, except to
identify the owner of the property. Typical "For Sale" signs shall be
allowed during the sale of a lot. A sign may be placed at the main
entrances to the subdivision to identify the subdivision and/or
neighborhood. Signs are permitted in the R-O district in accordance
with local land use regulations including the City of Bozeman Design
Objectives Plan.
(g) No lot shall be further subdivided except that Block 1, Lots 1, 2, 3 and
11 and Block 2, Lots 3 and 4 may create condominiums and be subject
to the declarations of a condominium property formed and filed. The
additional restrictions and requirements of any such form
condominium do not, in any way, relieve the lot or owner from
compliance with all restrictive covenants stated herein.
(h) There are reserved, as shown in the plat and as may otherwise be
reserved, easements for the purposes of constructing, operating,
maintaining, enlarging, reducing, removing, laying or relaying lines
and related facilities and equipment for utilities, including, but not
limited to, those providing gas, communication and electrical power.
Fencing, hedges and other items allowed by the Covenants may be
placed along and in the easements as long as the intended use of such
easements are not prevented.
(i) No storage of materials is allowed in right-of-ways without appropriate
permits from the City of Bozeman Engineering Office.
5.2 Restricted Size Lots (RSL) & Units (RSU)
Units designated “RSL” must comply with appropriate City restrictions for square
footage restrictions. Further, all RSL/RSUs must be physically occupied by the
owner (minimum fifty (50) percent fee simple ownership interest) as a principal
residence. No rental of RSL/RSU is allowed.
5.3 Notice of Adjacent Agricultural Uses
Property owners and residents of Loyal Garden are informed that adjacent uses
may be agricultural. Lot and unit owners accept and are aware that standard
agricultural and farming practices can result in dust, animal odors and noise,
smoke, flies, and machinery noise. Standard agricultural practices feature the use
of heavy equipment, chemical sprays and the use of machinery early in the
morning and sometimes late into the evening. All new fences bordering
agricultural lands shall be maintained by the property owners in accordance with
state law.
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5.4 Notice of Water Features
(a) Notice: Each owner of property within Loyal Garden, as individuals and as
members of the Association, acknowledges the presence of water features,
including the Farmer Canal/watercourse located in Loyal Green Park. Each
owner of property within Loyal Garden, as individuals and as members of the
Association, acknowledges that water could pose a danger to humans,
animal life and property. By this acknowledgment, each owner of property
within Loyal Garden, as individuals and as members of the Association
assumes the normal and ordinary consequences of their actions when in,
next to or in the vicinity of water features within Loyal Garden.
(b) Hold Harmless: Each owner of property within Loyal Garden, as individuals,
agrees by acceptance of this covenant to hold harmless Covenant
Investments, Inc., its officers and directors, and successors in interest, the
Neighborhood Association, adjacent property owners, and the Farmer Canal
Company and its successors in interest for any water related injury to persons,
property and animals and damage due to acts of God and nature, including
but not limited to a flood from the canal and other water features resulting
from circumstances beyond the control of the parties listed herein.
(c) Insurance: Each owner of property within Loyal Garden acknowledges that it
is advisable to seek insurance to protect the owner’s property in the case of a
water event relating to the canal and water features.
5.5 Weed Control
The control of noxious weeds by the Neighborhood Association on those areas
for which the Neighborhood Association is responsible and the control of
noxious weeds by individual owners on their respective lots shall be as set forth
and specified under the Montana Noxious Weed Control Act (MCA 7-22-2101
through 7-22-2153) and the rules and regulations of the Gallatin County Weed
Control District.
The landowner shall be responsible for the control of the state and county
declared noxious weeds on his or her own lot. Both unimproved and improved
lots shall be managed for noxious weeds, In the event a landowner does not
control the noxious weeds, after ten (10) days notice from the Neighborhood
Association, the Neighborhood Association may cause the noxious weeds to be
controlled. The cost and expense associated with such weed management shall
be assessed to the lot and such assessment may become a lien if not paid within
thirty (30) days of the mailing of such assessment.
The Neighborhood Association is responsible for control of state and county
declared noxious weeds in the subdivision parks, open spaces, community areas,
trails, and roadways.
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5.6 Garbage
Property owners and residents of the neighborhood are informed that all
garbage must be promptly removed from the property. There shall be no
incineration or burning of garbage, trash or other waste or debris on, or coming
from any lot. No junk, garbage, trash, equipment, non-working or out-of-use
vehicles, parts, metals, lumber, debris or other waste shall be allowed to
accumulate on any lot or originate from any lot during construction. All garbage
and trash requirements of the City of Bozeman shall be observed. Garbage
containers shall be kept in the garage or other enclosures except on garbage
pick-up day. Each lot owner shall maintain the alley right-of-way adjacent to the
owner’s property. Such maintenance shall include, but not be limited to, picking
up and appropriately disposing of debris and garbage, mowing and trimming of
the alley right-of-way.
All construction dumpsters must be protected from wind. Owners with
unsecured dumpsters or building materials will be subject to fines.
In the event an owner shall not control waste on or coming from their property,
the Association, after ten (10) days written notice to an owner to control the
same, may cause the waste to be controlled or collected, and will assess the lot
owner for the costs thereof and or fined.
Refuse within the parks and open space will be collected by a service retained by
the Neighborhood Association.
5.7 Sidewalks
All lot owners are required to install city standard concrete sidewalks, along all lot
street frontages, at the time of construction (prior to occupancy) or by ______,
whichever occurs first.
Every lot owner shall be responsible for maintenance of the sidewalk located on,
adjacent to and between the owner’s lot and the nearest right-of-way.
Maintenance shall include, but not be limited to snow and ice removal.
The Neighborhood Association shall be responsible for maintenance of the
sidewalks located on and adjacent to parks and open space. Maintenance shall
include, but not be limited to snow and ice removal.
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Article 6: Common Areas
6.1 Use
Each property or unit owner has the right to use and enjoy the common
properties or facilities. No property owner shall have the right to occupy or
possess any of the open space and common area by reason of owning a lot in
Loyal Garden. No Owner, guest or invitee may use or occupy the common area,
trails, roads, open space, parking area or any lot in such a manner as to disturb or
interfere with the peaceful use, occupancy or enjoyment of any other owner,
guest or invitee of Loyal Garden. General use restrictions are listed in Article 5. In
addition to the other restrictions stated herein, no motorcycles, snowmobiles or
similar means of transportation are permitted in parks or common areas.
Motorized vehicles are allowed exclusively for snow removal.
Violations shall be enforced as provided for in Article 7 of these Covenants.
The Open Space within Loyal Garden as designated on a final plat or approved
site plan shall be preserved in perpetuity. Open space shown on the approved
final plan or plat shall not be used for the construction of any structures not
shown or approved in the final parks plan. The Board, among its other duties,
shall establish assessments for the taxes, insurance, and maintenance of all open
spaces, parks, trails, roads, medians and easements.
6.2 Control and Management
The Association shall have the exclusive right and obligation to manage, control
and maintain the Open Spaces and Common Areas.
6.3 Maintenance
Parks and open space shall be maintained as specified in the Parks Master Plan.
The Neighborhood Association shall be responsible for liability insurance, local
taxes and maintenance of recreation and other facilities in the common space
areas. The assessments levied by the Board for the maintenance, upkeep, repair
and operation of common areas like all other assessments, become a lien on each
lot within the Loyal Garden. The Board may, in its discretion, adjust the
assessments to meet the changing needs of the community and the areas serving
the community.
The developer will be responsible for park maintenance until a Neighborhood
Association is formed. The Neighborhood Association will then be responsible for
park maintenance until such time a City wide Park Maintenance District is
created. The Neighborhood Association shall also be responsible for the
maintenance of all common properties, paths and trails, facilities, centers, and
adjacent sidewalks and/or landscaping in street boulevards.
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The Association will also maintain the landscaped medians in Advance Drive,
Alpha Drive and Loyal Drive.
6.4 Maintenance Guarantee
In the event the organization or any successor organization established to own
and maintain commonly owned open spaces, recreational areas, facilities, private
streets, and parking lots common areas and facilities, shall at any time fail to
maintain the common areas or facilities in reasonable order and condition in
accordance with the approved plan, the City Commission may cause written
notice to be served upon such organization or upon the owners of property in
the development. The written notice shall set forth the manner in which the
common areas or facilities have failed to be maintained in reasonable condition.
In addition, the notice shall include the demand that the deficiencies noted be
cured within thirty days thereafter and shall state the date and place of a hearing
to be held within fourteen days of the notice. At the time of hearing, the City
Commission may modify the terms of the original notice as to deficiencies and
may extend the time within which the same may be cured. If the deficiencies set
forth in the original notice or modifications are not cured within the time set, the
City may enter upon such common facilities and maintain the same for a period
of one year, in order to preserve the taxable values of properties within the
development and to prevent the common facilities from becoming a public
nuisance. Such entry and maintenance shall not vest in the public any right to
use the common facilities not dedicated to public use. Before the one year period
expires, the Commission shall, upon its own initiative or upon written request of
the organization theretofore responsible for maintenance, call a public hearing
and give notice of such hearing to the organization responsible for maintenance
or the property owners of the development. At the hearing, the organization
responsible for maintenance and/or the residents of the development may show
cause why maintenance by the City should not be continued for a succeeding
year. If the City Commission determines that it is not necessary for the City to
continue such maintenance, the City shall cease such maintenance at the time
established by the City Commission. Otherwise the City shall continue
maintenance for the next succeeding year subject to a similar hearing and
determination at the end of each year thereafter.
(a) The cost of maintenance by the City shall be a lien against the common
facilities of the development and the private properties within the
development. The City Commission shall have the right to make assessments
against properties in the development on the same basis that the
organization responsible for maintenance of the facilities could make such
assessments. Any unpaid assessment shall be a lien against the property
responsible for the same, enforceable the same as a mortgage against such
property. The City may further foreclose its lien on the common facility by
certifying the same to the County Treasurer for collection as in the case of
collection of general property taxes.
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(b) Should the property owners association request that the City assume
permanent responsibility for maintenance of facilities, all facilities shall be
brought to City standards prior to the City assuming responsibility. The
assumption of responsibility must be by action of the City Commission and all
costs to bring facilities to City standards shall be the responsibility of the
property owners association. The City may create special financing
mechanisms so that those properties within the area affected by the property
owners association continue to bear the costs of maintenance.
(c) These common areas and facilities shall include but are not limited to
commonly owned open spaces, recreational areas, facilities, private streets
and parking lots. These common areas and facilities shall also include but are
not limited to public parks, squares, open space, recreation areas, trails, as
well as any public streets, avenues and alleys not accepted by the City for
maintenance.
(d) The City shall assume permanent responsibility for maintenance of public
areas and facilities when a dedicated funding mechanism is adopted.
Article 7: Disputes, Enforcement, & Fines
7.1 Enforcement
Enforcement of these Covenants shall be by proceedings either at law or in
equity against any person or persons violating, or attempting to violate, any
Covenant; and the legal proceedings may either be to restrain violation of these
Covenants, to recover damages, or both.
Should any lawsuit or other legal proceeding be instituted by the Association or
an owner against an owner alleged to have violated one or more of the
provisions of these Covenants and should the Association or owner enforcing the
provisions of the covenants be wholly or partially successful in such proceedings,
the offending owner shall be obligated to pay the costs of such proceeding,
including reasonable attorney’s fees for all time associated with the action.
The failure of Declarant, the Association or an owner, to enforce any Covenant or
restriction contained herein shall not be deemed a waiver or in any way
prejudice the rights to later enforce that Covenant, or any other Covenant
thereafter, or to collect damages for any subsequent breach of Covenants.
The waiver or approval of a variance of a Covenant provision by the Board of
Directors or the Loyal Garden Design Review Board, or non-action of the
Association or Declarant in the event of a violation of a Covenant by a particular
owner or lot, shall not be deemed to delete or waive the Covenant or
enforcement thereof as it pertains to other owners or lots.
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Invalidation of any one of these Covenants by judgment or by Court order shall
in no way affect any of the other Covenants or provisions, all of which shall
remain in full force and effect.
In any conveyance of the above described real property or of any lot thereon, it
shall be sufficient to insert a provision in any deed or conveyance to the effect
that the property is subject to protective or restrictive Covenants without setting
forth such restrictions and Covenants verbatim or in substance in said deed nor
referring to the recording data. All of the above described real property and lots
shall be subject to the restrictions and Covenants set forth herein, whether or not
there is a specific reference to the same in a deed or conveyance.
A breach of any of the foregoing restrictions or Covenants shall not defeat or
render invalid the lien of any mortgage or deed of trust made in good faith and
for value upon any lot or portion of the real property or any improvements
thereon. However, the Covenants shall be binding upon and shall inure to the
benefit of any subsequent owner whose title thereto was acquired by
foreclosure, trustee sale or otherwise.
7.2 Fine Schedule
For any Violation of the terms, conditions, restrictions and protections contained
within the covenants, and upon written complaint signed by the author.
Upon receipt of complaint and the finding of violation, the Association has the
authority to assess fines. The Association shall notify the Owner upon receipt of a
complaint of violation and allow a reasonable time for response by the Owner.
The Association’s agent may determine if a violation occurred. Upon
determination of a violation, the Association shall notify the Owner of the
violation, the fine and the date of payment for the fine and the ability of the
Association to file a lien against the Owner’s property without further notice.
Failure to pay the fine when due shall subject the Owner to interest on the
unpaid portion of the fine at a rate of not less than ten (10) percent per annum.
Said rate may be amended without an amendment of this Declaration.
In addition to the fine schedule set forth above, the Homeowner’s Association
may assess fines of up to $50,000.00 (note that this is in addition to the terms
outlined for unfinished structures in Section 5.6 of the Development Manual)
against any Owner who constructs, remodels or modifies a structure without
written approval from the LGDRB.
7.3 Dispute Resolution
If a dispute still exists after all proper procedures outlined in this document and in
the Development Manual have been exhausted, mediation should be the next
step in dispute resolution before any lawsuits are filed.
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Article 8: Amendments
Any covenant which is required as a condition of the preliminary plat approval and
required by the City Commission may not be amended or revoked without the mutual
consent of the owners in accordance with the amendment procedures in the
covenants, and the City Commission.
The term of the provisions of these Covenants shall be binding for a term of twenty (20)
years from the date of these Covenants and may be modified, altered or amended
during that period only by the Declarant at the Declarant’s sole option. After the initial
twenty (20) year period, the Covenants shall be automatically extended unless an
instrument agreeing to amend, revoke or terminate these Covenants has been signed
by the Owners of eighty (80) percent of the lots in Loyal Garden.
After the initial twenty (20) year term for these covenants, the provisions of these
Covenants may be changed or amended or additional Covenants added, in whole or in
part, by the Association upon approval of two-thirds (2/3) of the votes of the
Neighborhood Association at a meeting duly noticed and called for this purpose;
provided that, the easements for roads, utilities and common areas shall not be changed
without the unanimous consent of all of the owners affected by the change.
The President or Vice-President shall execute and record the amendment, change or
addition with the Clerk and Recorder of Gallatin County, Montana.
Any change of these Covenants shall be effective upon the filing and recording of such
an instrument in the office of the Gallatin County Clerk and Recorder. No improvements
that were constructed and approved in accordance with the covenants shall be
required to be changed because such standards are thereafter amended. All lots within
all phases of Loyal Garden shall be required to adhere to these covenants.
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Article 9: Definitions
The words and terms used in this document shall be defined as in the latest edition of
the City of Bozeman Unified Development Ordinance unless defined below. If not
defined below or in the Unified Development Ordinance, words and terms shall have
their customary dictionary definitions.
Association shall mean the Loyal Garden Neighborhood Association, its
successors and assigns. The Association may be incorporated as a Montana
nonprofit corporation, with its members as the lot owners.
Board shall mean the Loyal Garden Design Review Board (LGDRB).
Contract purchaser shall mean a person buying a lot pursuant to a contract for
deed, Montana Trust Indenture or mortgage.
Declarant shall mean and refer to Covenant Investments, Inc., and its successors
and assigns.
Development shall mean any building, construction, renovation, or material
change in the use or appearance of structures or land. Development includes the
construction of fences and paving.
Directors shall mean the Board of Directors of the Association, and shall consist of
five property owners who shall be elected at the annual meeting by a simple
majority of the members of the Association; provided, however, the Declarant or
its designated agent may, at its discretion, hold a position as a Director so long as
Declarant owns at least one (1) lot. The Directors shall be elected for a term set
by a simple majority of the membership, but not less than one year. Any vacancy
in the Board of Directors occurring before the next annual meeting of the
members shall be filled by the remaining Directors. The Directors shall have the
authority to act on behalf of the Association and its members as shall be
reasonably necessary to carry out the purposes of the Association and enforce
these Covenants. The Directors shall act by majority vote. The officers of the
Association shall follow the directions of the majority vote of the Directors.
Notwithstanding anything contained herein to the contrary, until120 of the lots
in Loyal Garden, as described in Exhibit A, have been sold, the Declarant shall
have the right to appoint the Directors, who shall not be required to be lot
owners or members of the Association.
Member shall mean any owner or lot owner. Each member or owner agrees to
abide and be bound by these Covenants, the Articles of Incorporation, and the
Bylaws and the Resolutions of the Neighborhood Association, if any.
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Open space means those areas set aside for the use of all of the owners and the
public, including roads, trails, easements, parks, open spaces, and medians. The
terms “open space” and “common area” or “common open space” are used
interchangeably.
Owner or "lot owner" shall mean any person or entity owning a fee simple
interest in a lot or a contract purchaser, whether one or more persons or entities,
owning or purchasing a lot, but excluding those having a mortgage or an
interest merely as security for the performance of an obligation; provided,
however, that prior to the first conveyance of a lot for value, the term "owner"
shall mean "Declarant" or its successors or assigns. The term "person" hereinafter
shall include any person, persons or entities.
Properties and "lots" shall mean all of the real property herein described and
subsequently surveyed and platted into lots as Loyal Garden or a phase thereof,
according to the official plats thereof filed of record in the office of the Clerk and
Recorder of Gallatin County, Montana.
250
IN WITNESS WHEREOF, Declarant has hereunto set its hand as of this ______ day of
____________, 2007.
DECLARANT:
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Exhibit A: Legal Description of Subdivision
A parcel of land, said parcel being Tract 1 of Certificate of Survey No. 24 and all of
Certificate of Survey No. 25, excepting therefrom the property described in the
Bargain and Sale Deed recorded in Book 120 on Page 327 of Gallatin County
records, said parcel being located in the Northeast Quarter of Section 16,
Township 2 South, Range 5 East, Principal Meridian Montana, Gallatin County,
Montana and said parcel being further described as follows:
Beginning at the southwest corner of Certificate of Survey No. 24; thence North
00°18'47" West, along the west line of said survey, a distance of 662.56 feet to
the southwest corner of Certificate of Survey No. 25; thence North 00°21'29"
West, along the west line of said Certificate of Survey No. 25, a distance of
1940.58 feet; thence North 89°03'02" East, along the southerly line of the
property described in Book 120 on Page 327 of Gallatin County Records, a
distance of 1294.97 feet; thence North 89°38'47" East, along said southerly line, a
distance of 38.78 feet; thence South 00°20'55" East, along the east line of said
Section 16, a distance of 2428.06 feet to the southeast corner of said Certificate
of Survey No. 24;
The following 6 courses being along the southerly line of the Farmers Canal as
shown on said Certificate of Survey No. 24:
North 86°16'14" West, a distance of 86.79 feet;
North 66°43'13" West, a distance of 126.67 feet;
North 68°12'19" West, a distance of 165.58 feet;
South 86°51'46" West, a distance of 105.69 feet;
South 63°49'58" West, a distance of 693.00 feet;
thence South 89°24'28" West, along the south line of said survey, a distance of
248.40 feet to the Point of Beginning.
The described parcel contains 75.044 acres, more or less.
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Exhibit B: Legal Description of Shared Spaces
7 parcels of land, said parcels being portions of Certificate of Survey No. 25 of
Gallatin County records, said parcels being located in the Northeast Quarter of
Section 16, Township 2 South, Range 5 East, Principal Meridian Montana, City of
Bozeman, Gallatin County, Montana, and said parcels being described as follows:
Open Space B and Open Space N, in Block 8; Open space O and Open Space P in
Block 1; Open Space C and Open Space D in Block 3; and Open Space E in Block
4, of the Plat of Loyal Garden Subdivision, Phase 1A.
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253
NNEEIIGGHHBBOORRHHOOOODD
AASSSSOOCCIIAATTIIOONN
BBYYLLAAWWSS
Prepared By:
Intrinsik Architecture, Inc. &
Susan B. Swimley, Attorney & Counselor at Law
Prepared For:
Covenant Investments, Inc.
Approved by the Loyal Garden Neighborhood Association
Date: ____________________
254
NNEEIIGGHHBBOORRHHOOOODD
AASSSSOOCCIIAATTIIOONN
BBYYLLAAWWSS
Table of Contents
Name Page
Article 1: Purpose 2
Article 2: Relationship to other Documents 2
2.1 Loyal Garden Covenants 2
2.2 Loyal Garden Development Manual 2
Article 3: Contact Information 2
Article 4: Meetings 2
Article 5: Membership Interest 3
Article 6: Resolutions 4
Article 7: Powers & Duties of the Board 4
Article 8: Voting Interest 6
Article 9: Board Members 6
Article 10: Terms & Replacement 7
Article 11: Committees 7
Article 12: Insurance 7
Article 13: Covenants 7
Article 14: Compensation 7
Article 15: Severability 7
Article 16: Amendments 8
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Article 1: Purpose
The purpose of the Loyal Garden Neighborhood Association Bylaws is to outline
the procedures and processes for how neighborhood meetings are organized
and held.
Article 2: Relationship to other Documents
2.1 Loyal Garden Covenants
All properties in Loyal Garden are also subject to the Loyal Garden
Covenants which are on file at the Clerk & Recorder’s Office and online at
www.loyalgarden.com.
2.2 Loyal Garden Development Manual
All properties in the Loyal Garden Subdivision are also subject to the Loyal
Garden Development Manual which is online at www.loyalgarden.com.
Article 3: Contact Information
The mailing address of the Loyal Garden Neighborhood Association shall be: P.O.
Box 11428, Bozeman MT 59719. The address of the Association may be changed
by the Board of Directors upon notice to the owners. Current contact information
may also be found on the website.
Article 4: Meetings
The annual meeting of the Association shall occur on the 1st Tuesday of
December of each year. Any special meetings may be called by the President, or
in the absence of the President, by the Vice-President. In addition, a special
meeting shall be held upon call of twenty-five (25) percent of the owners. Special
meetings shall require forty-eight (48) hours’ notice in writing. Notice of annual
and special meetings shall be mailed to owners at the address for each owner
and posted on the website. The presence of ten (10) or more members at a
noticed meeting shall constitute a quorum.
At the annual meeting, the members shall review and approve a budget for the
next year, shall elect Directors to fill any expired term or vacant position, and shall
conduct such other business as shall be reasonable or necessary to carry out the
purpose of the Association. The members shall have the authority to set the
number of Directors, which number shall not be less than five.
The annual meeting of the Board of Directors shall be held immediately after the
annual meeting of the members. At the annual meeting, the Directors shall elect
a President and a Vice-President. At this time the Directors shall also designate a
Secretary and Treasurer. The Directors may choose to hire outside persons that
are not members of the Association to fulfill the Secretary and Treasurer duties.
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The duties of President and Vice-President shall be as follows:
President. The President shall preside over all meetings of the Association.
He or she shall call the membership together whenever necessary. The
President shall be the general administrative and executive officer of the
Association, and shall perform such duties as may be specified, and
gated to the office of President by the
oard of Directors.
exercise such powers as may be dele
B
Vice-President. The Vice-President shall exercise the powers of the
President in the absence of the President.
The duties of the Secretary and Treasurer shall be as follows:
Secretary. The Secretary shall give notice of all meetings of the Association,
and shall keep a record of the proceedings of the meetings of the
Association. The Secretary shall be authorized to sign on behalf of the
s, documents and instruments when such are
authorized to be signed by the Association.
Association, all record
Treasurer. The Treasurer shall keep and maintain adequate and correct
accounts of the accounts, properties, and business of the Association,
including accounts of its assets, liabilities, receipts, disbursements, gains
and losses of the Association. The Treasurer shall prepare and report such
untings as shall be required by the Association.
ership interest in the Association.
Membership interest shall run with the land so that said interest is an incident to
periodic acco
Article 5: Membership Interest
Every person, group of persons, partnership, corporation, or association who is a
fee owner of real property within the boundaries of the area described as Loyal
Garden Subdivision on file and of record in the office of the County Clerk and
Recorder of Gallatin County, Montana, shall be a member of the Association. By
this provision, each lot, tract and parcel as shown on the plat and amendments
thereto shall entitle the owner of one memb
Multiple owners of a single parcel of real property would have collectively one
such membership or voting interest. If more than one lot, parcel, or tract is
owned, the owner or owners thereof would have one membership or voting
interest for each separate parcel of real property.
ownership beginning when ownership rights are acquired and terminating
when such rights are divested. Accordingly, no member shall be expelled, nor
shall he be permitted to withdraw or resign while possessing a membership
interest.
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257
Each membership interest as defined by these Bylaws shall have one (1) vote on
ll matters to come before the Association meeting. Voting of such interest shall
be in
Cumu
Directo
Article
All matters that are the business and concern of the Association shall be
presen
resolutions directed to the Board of Directors. Such resolutions as are passed by
over fifty (50) percent of the said membership interest of record and eligible to
ing resolution shall
have the effect of compelling the Board of Directors to take positive action in
respon
and sp
Board
Article
The Bo
(b) To provide for the construction, installation, acquisition, replacement,
and repair by the Association of buildings,
equipment, common areas, facilities and services for recreation and/or
To take necessary and appropriate action to collect assessments from
members, including the filing of liens and prosecuting foreclosures as
provided in these Bylaws.
a
the manner provided by the Board of Directors and in these Bylaws.
lative voting shall be provided for election or removal of the Board of
rs. Voting may be in person or by proxy.
6: Resolutions
ted to the Association and meetings of the Association in the form of
vote shall be binding on the Board of Directors. Such bind
se to the general inclination of the resolution. However, the scope, extent
ecific character of all such action shall be within the final discretion of the
of Directors.
7: Powers and Duties of the Board
ard of Directors shall have the following powers:
(a) To enter into contracts and agreements as are necessary to affect the
business of the Association.
operation, maintenance
sporting activities, lighting, garbage removal and disposal, television,
security of persons or property, fire protection and other municipal
services and functions. Contracts for such work with third parties which
provide for a term or duration in excess of one year must be approved by
a majority of the members, which approval may be ratified at the annual
or any special meeting of the Association.
(c) To make and establish rules and regulations for the governance of
facilities and the performing of such functions, the taking of such action
and operating in such areas as are within the jurisdictions of the
Association.
(d) To make assessments as described in these Bylaws and the Declaration
of Covenants, Conditions and Restrictions on file and of record in the office
of the County Clerk and Recorder of Gallatin County, Montana.
(e)
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258
(f) To call meetings of the Association, both annual and special, and to
preside over such meetings and to give appropriate notice of such
meetings as required by these Bylaws.
(g) To formulate and introduce resolutions at the meetings of the
the Association, and to provide for the
use and disposition of the insurance proceeds in the event of loss or
the remaining members,
should the vacancy not, however, be filed by the Board, it may be filled by
te.
ests of residents.
the purposes as stated in the Articles of Incorporation and to
o any and all things necessary to require compliance with and enforce
ments and
ureaus or other governmental bodies in a federal, state, county and local
Association.
(h) To hold meetings of the Board of Directors as are necessary to conduct
Association affairs.
(i) To exercise ultimate decisional power in and on all matters affecting the
Association.
(j) To pay the expenses of the Association, including all taxes or
assessments and to contract and pay for such insurance as may be
necessary in the best interests of
damage.
(k) To fill vacancies on the Board by agreement of
an election at an annual or special meeting wherein each membership
interest shall have one (1) vo
(l) To maintain lists of members.
(m) To keep records in a good and businesslike manner of all assessments
made, all expenditures, and the status of each member’s payments of
assessment; and to make such records accessible at reasonable times to all
members.
(n) To provide municipal type facilities for the safety, comfort, health, well-
being and pleasure of the residents and gu
(o) To promote, conserve and preserve the premises.
(p) To do any and all things necessary to carry into effect these Bylaws and
to implement
d
the Declaration of Covenants.
(q) To deal with agencies, officers, boards, commissions, depart
b
basis to carry out the above powers, duties and responsibilities.
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259
(r) To establish accounts for operating and/or development funds as set
Directors.
assessments on its members.
Article
Whenever any lot, tract or parcel is owned or leased by two or more persons or
by an
voting may be allowed, among and between themselves determine who is
entitled to vote the membership interest and in what manner it shall be voted. If,
in the
the vo
to be a
rights.
Article
Memb
acting
ers as a result of their activities as such for
ny mistake of judgment, negligence or otherwise, except for their own
) Shall have no personal liability in tort to any Owner or any person or
) Shall have no personal liability arising out of the use, misuse or
e assessed against or
puted to them as a result of or by virtue of their capacity as such.
out in the Declaration of Covenants.
(s) To select a chairman of the Board of
(t) The Association, acting through the Board of Directors, shall have the
power to levy
8: Voting Interest
entity, such person or persons or entity must, prior to a meeting where
judgment of the Board, a bona fide and irreconcilable dispute arises as to
ting or right to vote a membership interest, such interest may be declared
dispute and for the time such interest is in dispute, it shall have no voting
9: Board Members
ers of the Board and their officers, assistant officers, agents and employees
in good faith on behalf of the Association:
(a) Shall not be liable to the Own
a
willful misconduct or bad faith;
(b) Shall have no personal liability in contract to an Owner or any other
person or entity under any agreement, instrument or transaction entered
into by them on behalf of the Association in their capacity as such;
(c
entity, except for their own willful misconduct or bad faith;
(d
condition of the Property which might in any way b
im
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260
Article
The terms of office for members of the Board shall be not less than three (3) year
and m f a Resolution presented
to the members at an annual meeting. The Board of Directors shall have
stagge
he members shall draw lots which shall dictate that two (2) members shall serve
er shall serve a term of two (2) years and one member
all serve a term of one (1) year. There are no restrictions upon successive
tees may be dissolved at any time by the Board of Directors.
the Association and the Board
embers, when acting in their official capacity, from liability. The extent and
specifi
Article
No acts by the Association or by the Board of Directors shall be contrary to the
Declar
Monta
such a n and
initiating suit to enforce the Declaration of Covenants, Conditions and
Restric
Article 4: Compensation
Board
while
rticle 15: Severability
determination of invalidity of any one or more of the provisions or conditions
ereof by judgment, order, or decree of a court shall not affect in any manner the
ther provisions hereof, which shall remain in full force and effect.
10: Terms & Replacement
ay be extended in duration by the presentation o
red terms. As such the initial board of directors shall meet.
T
3 years each, one memb
sh
periods of Board of Directors terms. Vacancies shall be filled by the remaining
Board of Directors for the remaining period of the departed Director's term.
Article 11: Committees
Pursuant to the Title 35, Chapter 2, M.C.A. and subject to the restrictions stated
therein the Board may appoint committees to act for the Board and to exercise
the authority of the Board on matters referred to them by the Board. Such
commit
Article 12: Insurance
The Board may purchase insurance policies to protect the property of the
Association against casualty loss and to protect
m
c nature of coverage shall be determined by the Board.
13: Covenants
ation of Covenants on file with the Clerk and Recorder of Gallatin County,
na, and amendments thereto. On its own initiative, the Board may take
ction as it deems necessary, including the taking of legal actio
tions.
1
members shall be reimbursed for any out-of-pocket expenses incurred
acting in their official capacity.
A
A
h
o
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Article 16: Amendments
Amendments to the Loyal Garden Neighborhood Association Bylaws shall only
he time of the
eeting to consider the change and the passage by a majority of the owners
be made by the Loyal Garden Neighborhood Association. Amendments to the
Bylaws shall be presented to the owners at the same time as the owner is
provided notice of the meeting. The bylaws may not be changed without the
owners having been presented with the proposed change, t
m
present, in person or by proxy, at the meeting. Any amendments to the Bylaws
will be posted on the Loyal Garden Website.
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Subdivision Preliminary Plat
#13344
Additional Subdivision Preliminary Plat Supplements
The following is a summary review of each of the “Additional Subdivision Preliminary Plat
Supplements” listed in Article 41, Section 38.41.060 of the Bozeman Unified Development
Code. A waiver was granted for the full requirement of this supplemental information for all
supplements with the exception of 38.41.060.A.10 Water and Sewer and A.13 Utilities. The
responses below are provided as a quick summary to assist in the review of the application. The
full environmental assessment addressing each of these items can be found in the original Loyal
Garden Subdivision preliminary plat application accompanying this application.
38.41.060.A.1. - Surface Water (Waived)
There is no surface water on or immediately adjacent to this site. The nearest waterway
is a small ditch located approximately 250 feet east of the site.
38.41.060.A.2 – Floodplains (Waived)
There are no designated floodplains on or immediately adjacent to this property. A
detailed flood study was completed with the preliminary plat for Loyal Garden
Subdivision. This property is outside of any floodplains identified in the detailed study.
38.41.060.A.3. – Groundwater (Waived)
Groundwater levels were monitored extensively during the platting of the subdivision.
The groundwater levels are known and will be accounted for with any proposed
construction.
38.41.060.A.4. – Geology/Soils/Slopes (Waived)
No geological, soil or slope hazards are present on the subdivision site. The existing soils
are suitable for standard construction techniques. A detailed geotechnical report was
prepared for the subdivision with the previous preliminary plat submittal.
38.41.060.A.5. – Vegetation (Waived)
A wetlands delineation was completed with the original platting of the subdivision, no
wetlands or associated setbacks are present on the proposed site.
38.41.060.A.6. – Wildlife (Waived)
No critical wildlife species are found on this property.
38.41.060.A.7. – Historical Features (Waived)
As per the original preliminary plat, one historic site was discovered within the
subdivision – the Niebel Homestead. The State Historic Preservation Office determined
that it is not eligible to be listed on the National Register and no further action was
required.
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Subdivision Preliminary Plat
#13344
38.41.060.A.8. – Agriculture (Waived)
Per the original preliminary plat, the subdivision is not a viable farm unit. This proposed
minor subdivision is surrounded by residential developments and does not connect with
any agricultural properties.
38.41.060.A.9. – Agricultural Water User Facilities (Waived)
All sizes and capacities of irrigation ditches in the subdivision remain unchanged. No
water user facilities exist on this proposed minor subdivision.
38.41.060.A.10. – Water & Sewer
City of Bozeman water and sewer infrastructure exists in the road right-of-ways
surrounding the property. Ten (10) water and sewer service lines are currently extended
onto the north end of the property. Wherever possible the existing service lines will be
utilized to avoid additional disturbances to Golden Gate Avenue.
There are currently five existing sewer service lines extended into the proposed Lot 3D.
These services will be extended via the 10-foot front yard utility easement to service Lots
3B, 3C, 3D, 4A and 4B. Three (3) water service lines currently exist in the front yard
easement of the proposed Lot 3B. These lines will be extended to service Lots 3B, 3C
and 3D. Two (2) additional water service lines exist in the easement of the proposed Lot
4B. These lines will be extended to service Lots 4A and 4B.
New water and sewer service lines will need to be constructed to service the proposed
Lot 3A. These lines will connect with the existing 8-inch water main and 8-inch sewer
main running in Golden Gate Avenue. Adequate pressures and capacities exist in these
mains as detailed in the original Loyal Garden Subdivision Preliminary Plat Supplements.
Lots 3 and 4 were originally designated to have 10 and 5 dwelling units on each lot,
respectively. This proposal includes 6 single dwelling unit lots with the option of
accessory dwelling units, resulting in a maximum of 12 dwelling units on the property.
The maximum 12 dwelling units proposed is less than the 15 that were originally
designed for these lots, which results in smaller demands and contributions to the existing
water and sewer infrastructure.
38.41.060.A.11. – Stormwater Management (Waived)
Storm water runoff from the development of these lots was accounted for in the design of
the subdivision infrastructure. No changes to existing stormwater management facilities
are proposed with this submittal. The alley will be graded so that storm water flows into
the surrounding roadways which have the infrastructure to convey the water to the
existing detention ponds. Individual lots will need to be graded so the water flows to the
surrounding roadways.
38.41.060.A.12. – Streets, Roads & Alleys (Waived)
The site is surrounded on all sides by existing public streets. Sidewalks at the perimeter
will need to be installed by the lot owners.
264
Subdivision Preliminary Plat
#13344
38.41.060.A.13. – Utilities
The backbone for the utility infrastructure is in place within the existing utility easement
at the southern perimeter of the existing lots. Service providers have planned to service
this property as detailed in the original Loyal Garden Subdivision preliminary plat
application.
Utility service infrastructure has been installed in the utility easement on the southern end
of the lots. These installations include service boxes in between Lots 1 and 2 of Block 3,
in between the proposed Lots 3B and 3C, and near the southeast boundary of the
proposed Lot 4B. Builders will need to coordinate installation of service lines to the
individual homes during construction.
38.41.060.A.14. – Educational Facilities (Waived)
Impacts will be no greater than projected in the original subdivision design and analysis.
38.41.060.A.15. – Land Use (Waived)
This subdivision is proposed to convert two large multi-family lots, one of which was
originally designated as a Restricted Size Lot (RSL), into six single family residential
lots. The proposed usage complies with the existing R-3 zoning designation. Please see
the attached net residential density calculation for the subdivision calculations.
38.41.060.A.16. – Parks & Recreation Facilities (Waived)
The parkland dedication required for this development exists within the Public Parks
dedicated with the parent subdivision.
38.41.060.A.17. – Neighborhood Center Plan (Waived)
This development does not affect the requirements for a neighborhood center plan.
38.41.060.A.18. – Lighting Plan (Waived)
Street lighting, previously designed and approved, has been installed on surrounding
public streets.
38.41.060.A.19. – Miscellaneous (Waived)
The proposed subdivision will have no impact on access to any public lands. There are
no known health or safety hazards on or near the proposed subdivision.
38.41.060.A.20. – Affordable Housing (Waived)
The Work Force Housing Ordinance has been suspended temporarily.
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