HomeMy WebLinkAboutJ1 Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Andrew Epple, Planning Director
Chris Kukulski, City Manager
SUBJECT: Board of Adjustment UDO Text Amendment, #Z-06161
MEETING DATE: Monday, June 26, 2006
BACKGROUND: On June 19th the Commission directed staff to revise Title 18 of the
municipal code to provide for a Board of Adjustment (BOA) separate from the City
Commission. A BOA is a requirement for adoption of local zoning and is subject to the
provisions of 76-2-321 through 76-2-328, MCA. Staff has scheduled this code revision for
consideration by the Zoning Commission on July 18t1, and City Commission on August 7t1,. At
this time staff has presented an initial draft for discussion to identify direction for the edit. Staff
has also included with this edit a clarification regarding nuisances in Chapter 18.02. A BOA may
not consider applications for subdivisions.
Variances, deviations, and conditional use permits have specific purposes which are explained in
Title 18. Variances especially must be treated with caution as they directly impact on
constitutional rights. This is reflected in Section 76-2-327, MCA which gives generous
opportunity to challenge in court the decisions of a Board of Adjustment.
UNRESOLVED ISSUES:
1. Duties. Sections 18.34.010.D, page 34-1, 18.62.010.A.5,page 62-2, 18.64.010.C, page 64-1. A
BOA may consider a wide range of projects, but not all. A list of possible duties is provided
below, those with an * have been assigned to the BOA in the attached draft text and reflect
staff s recommended duty list.
*Zoning variances
*Floodplain variances
*Deviations
*Appeals of administrative interpretations
*Appeals of administrative decisions
*Site plan reviews when a zoning variance or deviation is requested
*Conditional use permits, with or without variance or deviation
Zoning PUDs
2. Membership Size. Section 18.62.010.G, page 62-4. A BOA must have at least 5 and not more
than 7 members. An odd number is always preferable to avoid tie votes. Staff recommends 7
members to enable the necessary minimum quorum of four, which is required by 76-2-324,
MCA to be more easily achieved.
3. Membership qualifications. Section 18.62.010.G, page 62-4. Appointing qualified persons is
critical for this board as it will be making final decisions, not just recommendations. Several
standards have been included to guide selection. Preference has been given to city residents with
Report compiled on June 21, 2006
vq Commission Memorandum
an opportunity for non-residents to also be appointed. Additional criteria for preference in
selection are created to seek board members who:
a) have prior experience with local government,
b)will uphold the intent and purpose of the City's land use regulations
c) will honor the purpose of a Board of Adjustment.
4. Period of appointment. Statute says unless the local government otherwise specifies the term
of service is 3 years. Staff supports this longer period to help retain trained appointees. The terms
of service should be staggered to ensure some experienced persons can help train new
appointees.
5. Commission right to return jurisdiction to itself. The draft language in section 18.64.010.C,
page 64-1, contains the language authorizing the City Commission to reclaim review of a
specific project it deems necessary. The language reflects direction previously given to only
require a standard majority to make such a decision.
RECOMMENDATION: Consider the draft and give direction for any changes the Commission
wishes to have carried through the public hearing process.
FISCAL EFFECTS: Fiscal impacts are undetermined at this time.
ALTERNATIVES: As suggested by the City Commission.
Respectfully submitted,
Andrew Epple, Planning Director Chris Kukulski, City Manager
Attachments: Draft text of amended Chapters 18.02, 18.34, 18.62, 18.64, 18.66
Report compiled on June 21, 2006
CHAPTER 18.02
GENERAL PROVISIONS
18.02.010 CITATION
This title shall be known and cited as the Unified Development Ordinance of the City of Bozeman,
except when cited herein,where it shall be referred to as "this title."
18.02.020 AUTHORITY
This title is adopted by authority of §76-2-301 et seq., §76-3-101 et seq. and §7-3-701 et seq., MCA.
Additional City authority is granted by various other sections of state law and the authority granted by
those sections is incorporated as if set forth herein.
18.02.030 JURISDICTIONAL AREA AND APPLICATION
These regulations govern the division, development and use of land within the limits of the City of
Bozeman and lands proposed for annexation to the City of Bozeman. These regulations shall applyto all
private and public lands, all uses thereon, and all structures and buildings over which the City has
jurisdiction under the constitution and laws of the State of Montana or pursuant to the City's powers.
18.02.040 INTENT AND PURPOSE OF ORDINANCE
A. The intent of this unified development ordinance is to protect the public health, safety and
general welfare; to recognize and balance the various rights and responsibilities relating to land
ownership, use, and development identified in the United States and State of Montana
constitutions, and statutory and common law; to implement the City's adopted growth policy;
and to meet the requirements of state law.
B. It is the purpose of these regulations to promote the public health, safety and general welfare by
preventing the creation of private or public nuisances caused by non-compliance with the
standards and. procedures of this title; regulating the subdivision, development and use of land;
to prevent the overcrowding of land;to lessen congestion in the streets and highways;to provide
adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress,
and other public improvements; to require development in harmony with the natural
environment; to promote preservation of open space; to promote development approaches that
minimize costs to local citizens and that promote the effective and efficient provision of public
services; to protect the rights of property owners; to require uniform monumentation of land
subdivisions and transferring interests in real property by reference to a plat or certificate of
survey, secure safety from fire, panic and other dangers; to avoid undue concentration of
population; to facilitate the adequate provision of transportation-, water, sewerage, schools and
other public requirements; to give reasonable consideration in the review of development
proposals to the character of the district and its peculiar suitability for particular uses; to
conserve the value of buildings; and to encourage the most appropriate use of land throughout
the municipality. (576-2-304 and §76-3-102,MCA).
C. Further, to support the purposes of §76-2-304 and 576-3-102, MCA, these regulations are
intended to promote and to provide for the:
1. Orderly development of the City,
2. Coordination of streets within subdivided land with other streets and roads, both
existing and planned;
3. Dedication of land for streets and roadways and for public utility easements;
4. Improvement of streets;
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5. Adequate open spaces for travel,light, air and recreation;
6. Adequate transportation,water,drainage and sanitary facilities;
7. Avoidance or minimization of congestion;
8. Avoidance of unnecessary environmental degradation;
9. Encouragement of subdivision development in harmony with the natural environment;
10. Avoidance of danger or injury to health, safety or general welfare by reason of natural
hazard or the lack of water, sewer, drainage, access, transportation or other public
services;
11. Avoidance of excessive expenditure of public funds for the provision of public services;
12. Manner and form of making and filing of plats for subdivided lands;
13. Administration of these regulations, by defining the powers and the duties of approving
authorities, including procedures for the review and approval of all subdivision plats;
14. Division of the City into districts with „n;forMl,T applicable standards for developr��er�t
within each district; µ
15. To establish standards for the development and use of land;
16. To establish procedures for the review and approval for the development and use of
land; and
17. The establishment of all other requirements necessary to meet the purposes of this title.
D. Pursuant to §76-2-304, §76-1-605 and §76-1-606, MCA, these regulations are also intended to
implement the goals and objectives of the Bozeman 2020 Community Plan, a growth policy for
the City of Bozeman. In the case of a difference of meaning or implication between this title and
the City's adopted growth policy,the growth policyshall control.
18.02.050 INTERPRETATION AS MINIMUM REQUIREMENTS
A. In their interpretation and application, the provisions of this title shall be held to be minimum
requirements adopted for the promotion of the health, safety and general welfare of the
community. In some instances the public interest will be best served when such minimums are
exceeded. Wherever the requirements of this title are at variance with the requirements of any
other lawfully adopted rules or regulations, or wherever there is an internal conflict within this
title,the most restrictive requirements, or that imposing the higher standards,shall govern.
B. In the case of a difference of meaning or implication between the text of this title and the
captions or headings for each section,the text shall control.
C. When interpreting the meaning of this title, subsections of the ordinance shall be construed in a
manner that will give effect to them all as the ordinance derives its meaning from the entire body
of text taken together.
D. These regulations shall apply uniformly within each zoning district to each class or kind of
structure, land or development as set forth in this title.
18.02.060 DONATIONS OR GRANTS TO PUBLIC CONSIDERED A GRANT TO DONEE
Every donation or grant to the public or to any person, society or corporation marked or noted on a plat
or plan is to be considered a grant to the donee.
18.02.070 CONDITIONS OF APPROVAL
A. Regulation of the subdivision and development of land, and the attachment of reasonable
conditions to land subdivided or developed, or a use undertaken, is an exercise of valid police
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power delegated by the State of Montana to the City. Persons undertaking the subdivision,
development or use of land have the duty of complying with reasonable conditions for design,
dedication, improvement and restrictive use of the land so as to conform to the physical and
economic development of the City, and to the safety and general welfare of the future lot
owners and of the community at large. Such conditions may require compliance with more than
the minimum standards established by this title.
B. Conditions of approval may not be added after final action to grant preliminary approval to a
proposed subdivision or other development unless:
1. The conditions are necessary to correct inaccurate or incomplete information provided
with an application,which error is discovered after the original approval action; and
2. The project is not completed within the time period provided in the approval or by this
title.
However, should the owner seek material modifications (e.g. changes to the intent, nature, or
scope of a subdivision or development, or necessary improvements) to a previously approved
subdivision, development or condition of approval, the entire application shall be considered to
be again opened for review and additional conditions may be applied. Modifications of
conditions of approval shall be reviewed through the same process as the original application.
Final action includes the resolution of any appeals. The provisions of §18.06.040.D.7 may also
apply to revisions of conditions for preliminary plats.
C. Mandatory compliance with the explicit terms of this title does not constitute conditions of
approval and is not affected by the limitations of subsection B of this section.
18.02.080 COMPLIANCE WITH REGULATIONS REQUIRED
A. No land shall hereafter be subdivided, used or occupied, and no building, stricture or part
thereof shall hereafter be erected, constructed, reconstructed, moved or structurally altered, and
no development shall commence unless it is in conformity with all of the regulations herein
specified for the district in which it is located.
B. To the extent reasonable, all City-owned land shall be subject to applicable regulations of the
underlying zoning district. Development of such land shall be subject to approval by the City
Commission upon review of the development review committee and other review bodies as may
be required by this title.
18.02.090 DEVELOPMENTS THAT LIE WITHIN MULTIPLE JURISDICTIONS
If a proposed development lies partly within the City of Bozeman and partly within unincorporated
Gallatin County, the proposed development must be submitted to and approved by both the City and
Gallatin County.
18.02.100 PRIVATE RESTRICTIONS
This title is not intended to affect any existing private agreement or condition such as a deed restriction
or covenant. If any provision of this title is more restrictive or imposes a higher standard than any such
private restriction, the requirements of this title shall control. Where the provisions of any private
restriction are more restrictive or impose higher standards than the provisions of this title, the City has
no duty to enforce such private restrictions or advise of their existence. The City may enforce a private
restriction if the City is a party to such covenant or restriction, if such restriction was required by the
City, or if it was relied upon by the City during the land development process in order to meet the
requirements of this title or another required standard. The City may prohibit private restrictions that
violate matters of law. Covenants are subject to the requirements of§18.72.030,BMC.
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18.02.110 SEVERABILITY
Where any word,phrase, clause,sentence,paragraph, or section or other part of these regulations is held
invalid by a court of competent jurisdiction by express inclusion in the decision to be invalid, such
judgment shall affect only that part held invalid and such decision shall not affect, impair or nullify this
title as a whole or any other part thereof. Insofar as these regulations are more restrictive than any other
local law, these regulations shall be controlling, and if any other law is more restrictive, the higher
standard shall take precedence over a standard set forth in these regulations.
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CHAPTER 18.34
SITE PLAN REVIEW
18.3 4.010 INTRODUCTION
A. All non-subdivision development proposals within the City will be subject to plan review and
approval. Depending on the complexity of development and status of proposed use in the
applicable zoning district, either sketch plans, site plans or conditional use permits will be
required as specified in this chapter.
B. Special development proposals (e.g., PUDs, CUPs, variances, etc.) require other information to
be submitted in conjunction with sketch plans or site plans and are subject to requirements
specific to the type of proposal. These additional submittal requirements and review procedures
are outlined in �18.34.030,BMC.
C. When a development is proposed within a neighborhood conservation or entryway corridor
overlay district, or proposes signs which do not spec111Cd y conlorm to tire requirements of finis
title, design review is required in conjunction with either sketch plan or site plan review. In such
cases, additional submittal requirements and review procedures apply as outlined in §18.78.090,
BMC.
D. Conditional Uses. Certain uses, while generally not suitable in a particular zoning district, may,
under certain circumstances, be acceptable. When such circumstances can be demonstrated to
exist, a conditional use permit may be granted by the Board of Adjustmenti �s .
Conditions may be applied to the issuance of the permit and periodic review may be required.
No conditional use permit shall be granted for a use which is not specifically designated as a
conditional use in this title.
E. Approval shall be granted for a particular use and not for a particular person or firm.
F. This chapter is provided to meet the purposes of �18.02.040, BMC and all other relevant
portions of this title.
G. Applications subject to this chapter shall be reviewed under the authority established by Chapter
18.64,BMC.
18.34.020 CLASSIFICATION OF SITE PLANS
A. All developments within the City, except individual single-household, two-household, three-
household and four-household residential structures, each on individual lots, and other
development proposals specifically identified as requiring only sketch plan review, shall be
subject to site plan review procedures and criteria of this chapter and the applicable submittal
requirements of Chapter 18.78,BMC.For the purposes of this title,site plans will be classified as
either a master site plan or a site plan.
B. A master site plan is a generalized development plan that establishes building envelopes and
overall entitlements for complex, large-scale projects that will require multiple years to reach
completion. Use of a master site plan is an option and not required. A master site plan involves
one or more of the following:
1. One hundred or more dwelling units in a multiple household structure or structures;
2. Fifty thousand or more square feet of office space, retail commercial space, service
commercial space or industrial space;
3. Multiple buildings located on multiple contiguous lots and/or contiguous City blocks;
4. Multiple owners;
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5. Development phasing projected to extend beyond two years; or
6. Parking for more than two-hundred vehicles.
C. Any planned unit development shall be reviewed according to the regulations in. Chapter 18.36,
BMC,in addition to this chapter.
D. Telecommunication facilities shall be reviewed according to the regulations in Chapter 18.54,
BMC,in addition to this chapter.
E. Uses identified in Chapter 18.40, BMC shall be reviewed according to the standards and
regulations contained in Chapter 18.40,BMC, in addition to this chapter
18.34.030 SPECIAL DEVELOPMENT PROPOSALS - ADDITIONAL APPLICATION
REQUIREMENTS, REVIEW PROCEDURES AND REVIEW CRITERIA
A. Application Requirements. Applications for special development proposals (e.g. PUD, CUP,
flood plain development permits,variances,etc.) shall include:
1. The required information for site plans described in §18.78.090,BMC;
2. Any additional application information required for specific reviews as listed in the
following chapters of this title:
a. §18.36,Planned Unit Development;
b. §18.40,Standards for Specific Uses;
C. §18.54, Telecommunications;
d. §18.58,Bozeman Floodplain Regulations; and
C. §18.66,Appeals,Deviations and Variance Procedures;
B. Review Procedures and Review Criteria. Additional review procedures and review criteria for
specific development proposals are defined in the following chapters of this title:
1. §18.34.100, Conditional Use Procedure;
2. §18.36,Planned Unit Development;
3. §18.40, Standards for Specific Uses;
4. §18.54, Telecommunications;
5. §18.58,Bozeman Floodplain Regulations; and
6. §18.66,Appeals,Deviations and Variance Procedures.
18.34.040 RE VIEW AUTHORITY
A. The City Commission, Board of Adjustment and Planning Director have the review authority
established in 518.64.010,BMC.
B. The Development Review Committee, Design Review Board, Administrative Design Review
Staff, and Wetlands Review Board have the review authority established in Chapter 18.62,BMC.
C. Site Plan Design Review Thresholds. When a development is subject to design review and meets
one or more of the following thresholds the Design Review Board shall have responsibility for
conducting the design review.
1. Twenty or more dwelling units in a multiple household structure or structures;
2. Thirty thousand or more square feet of office space, retail commercial space, service
commercial space or industrial space;
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3. More than two buildings on one site for permitted office uses, permitted retail
commercial uses, permitted service commercial uses, permitted industrial uses or
permitted combinations of uses;
4. Twenty thousand or more square feet of exterior storage of materials or goods; or
5. Parking for more than sixty vehicles.
18.34.050 SKETCH PLAN REVIEW
A. Sketch Plan Submittal Requirements.
1. Certain independent development proposals (i.e., not in conjunction with other
development) are required to submit only sketch plans meeting the requirements of
518.78.110,BMC.
2. Separate construction plans are necessary for building permits when the proposal
requires such permits. Additional information is also necessary when the proposal
requires the issuance of a certificate of appropriateness (see §18.34.110 and 518.78.090,
B1V1C).
3. Examples of independent projects which qualify for sketch plan review are: individual
single-household, two-household, three-household, and four-household. residential units,
each on individual lots; accessory dwelling units in the R 2, R 3 and RA districts;
manufactured homes on individual lots; fences; signs in compliance with the
requirements of this title; regulated activities in areas with regulated wetlands not in
conjunction with a land development proposal; special temporary uses; and accessory
structures associated with these uses. Other similar projects may be determined by the
Planning Director to require only sketch plan review. The Planning Director shall
determine all submittal requirements.
B. Sketch Plan Review Procedures.
1. No Certificate of Appropriateness Required. Sketch plans for projects which do not
require a certificate of appropriateness shall be submitted to the Planning Department
staff for a determination of compliance with the requirements of this title. Once
compliance is achieved, the application will be approved for construction or referred to
the appropriate permitting authorities.
2. Certificate of Appropriateness Required. Sketch plans,including the material required by
§18.78.090,BMC, and such additional information as may be required for projects which
require a certificate of appropriateness as per �18.34.110, BMC shall be submitted to the
ADR staff, who shall review the proposal for compliance with this title, including
compliance with the applicable overlay district requirements. Once compliance is
achieved,the application will be approved for construction or referred to the appropriate
permitting authorities. Review and approval authority for sketch plans that require
certificates of appropriateness shall rest with the DRB if the ADR staff consists of less
than two members.
C. Sketch Plan Review Criteria. Sketch plans shall be reviewed for compliance with all
applicable requirements of this title including overlay district requirements and the
cessation of any current violations of this title, exclusive of any legal nonconforming
conditions.
18.34.060 APPLICATION OF SITE PLAN REVIEW PROCEDURES
A. These procedures shall apply to all developments within the City except for development
proposals specified as requiring only sketch plan review.
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B. The preliminary site plan shall be submitted and approved, and final site plan approval received,
prior to the issuance of any building permit.
C. No occupancy permits shall be issued for any development for which site plan review is required
until certification has been provided demonstrating that all terms and conditions of site plan
approval have been complied with.
D. Unless a deviation or variance is explicitly sought and granted in association with a site plan, all
standards of this title apply whether explicitly mentioned in the record of the review or not. An
omission or oversight of a nonconformity with the standards of this title in the site plan shall not
constitute approval of such nonconformance. Any nonconformance which was not the subject
of an explicitly approved deviation or variance may be required to be cured at such time the City
becomes aware of the nonconforming condition's existence.
E. In the event that the volume of site development applications submitted for review exceeds the
ability of the City to process them simultaneously, preference in order of scheduling will be
given to those projects which provide the most affordable housing in excess of minimum
requirements, as measured by the total number of affordable units.
18.34.070 SITE PLAN REVIEW PROCEDURES
A. Completeness of Application.
1. The Planning Department shall review the application within five working days to
determine if the application is does not omit any of the submittal elements required by
this title. If the application does not contain all of the required elements, the application,
review fee and a written explanation of what the application is missing shall be returned
to the property owner or their representative. The five working day review period will be
considered met if the letter is dated, signed and placed in the outgoing mail within the
five day review period.
2. After the application is deemed to contain the required elements it shall be reviewed for
completeness. A determination of completeness means the application contains all of the
required elements in sufficient detail and accuracy to enable the applicable review agency
to make a determination that the application either does or does not conform to the
requirements of this title and any other applicable regulations under the jurisdiction of
the City of Bozeman. The review for completeness shall be conducted by the
appropriate agency with expertise in the subject matter. The completeness review period
shall begin on the next working day after the date that the Planning Department
determines the application to contain all the required elements and shall be completed
within not less than 15 working days. The 15 working day review period will be
considered met if the letter is dated,signed and placed in the outgoing mail within the 15
working day review period. If the application is incomplete, the application, review fee
and a written explanation of why the application is incomplete will be returned to the
property owner or their representative. A determination that an application is complete
does not restrict the City from requesting additional information dunirig the site plan
review process. Upon a determination of sufficiency the review of the development will
be scheduled.
3. Should the property owner choose not to provide the required information after an
application has been found insufficient, nor to accept return of the application and
accompanying fee, the application may be processed by the City with the recognition by
the property owner that incompleteness is an adequate basis for denial of the application
regardless of other merit of the application.
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4. The DRC may grant reasonable waivers from submittal of application materials required
by these regulations where it is found that these regulations allow a waiver to be
requested and granted. If in the opinion of the final approval authority the waived
materials are necessary for proper review of the development, the materials shall be
provided before review is completed.
5. In order to be granted a waiver the applicant shall include with the submission of the
preliminary site plan a written statement describing the requested waiver and the reasons
upon which the request is based. The final approval body shall then consider each
waiver at the time the preliminary site plan is reviewed. All waivers must be identified
not later than initial submittal of the preliminary site plan stage of review.
B. Site plans shall be reviewed by the review bodies established by Chapter 18.62, BMC and
according to the procedures established by this title. After review of the applicable submittal
materials required by Chapter 18.78,BMC,and upon recommendation by the appropriate review
j bodies, the Planning Director, Board of Adjustment, or City Commission shall act to approve,
approve with conditions or deny the application, subject to the appeal provisions of Chapter
18.66, BMC. The basis for the Planning Director's, Board of Adjustment's, or City
Commission's action shall be whether the application, including any required conditions,
complies with all the applicable standards and requirements of this title, including § 18.02.050,
BMC..
1. Site Plan. The Planning Director shall provide an opportunity for the public to comment
upon development proposals. The duration of the initial comment period shall be
included in any notice required by Chapter 18.76, BMC. The comment period shall be
from the date of the first consideration of the complete preliminary plan and
supplementary materials by the DRC until 5:00 pm on the third working day after DRC
and other review bodies as maybe appropriate have taken action regarding the proposal.
a. The Planning Director, after receiving the recommendations of the DRC, ADR,
DRB or WRB, shall act to approve, approve with conditions or deny an
application within ten working days of the close of the public comment period.
The Planning Director's decision shall be in writing and shall include any special
conditions which are to be applied to the development.
(1) After formal notice of a project review has been given, interested parties
may request in writing to receive a copy of the director's decision
regarding an application. Persons making such a request shall provide an
addressed envelope for use in delivering their copy of the decision.
2. Site Plan with Deviations or Variances and Conditional Use Permits. The Board of
Adjustment shall provide an opportunity for the public to comment upon a proposed
master site plan. The ending date of the comment period shall be included in the notice
required by Chapter 18.76,BMC. The comment period shall be from the date of the first
consideration of the complete preliminary plan and supplementarymaterials by the DRC
until the decision by the Board of Adjustment.
a. The Board. of Adjustment, after receiving the recommendations of the DRC
ADR DRB or WRB shall act to approve, approve with conditions or deny an
application. The Board of Adjustment's decision shall be in writing and shall
include any special conditions which are to be applied to the development.
32. Master Site Plan. The City Commission shall provide an opportunity for the public to
comment upon a proposed master site plan. The duration of the comment period shall
be included in any notice required by Chapter 18.76,BMC. The comment period shall be
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from the date of the first consideration of the complete preliminary plan and
supplementary materials by the DRC until the decision by the City Commission.
a. The City Commission, after receiving the recommendations of the DRC, ADR,
DRB or WRB, shall act to approve, approve with conditions or deny an
application. The City Commission's decision shall be in writing and shall include
any special conditions which are to be applied to the development.
18.34.080 APPLICATION FOR CONDITIONAL USE PERMIT - NOTICE
REQUIREMENTS
A. The person applying for a conditional use permit shall fill out and submit to the Planning
Director the appropriate form with the required fee. The request for a conditional use permit
shall follow the procedures and application requirements of this chapter.
B. In consideration of all conditional use permit applications, a public hearing shall be conducted
Yltr'*T' ^' ^^' �'^" Notice of the Board o /-�rajq ntGt�r
by the Board of Ad»�stme____.__, �__�_� _. ce B..w_�. f ,���me���.u�y
men public hearing shall be provided in accordance with Chapter 18.76, BMC.
C. If a rezoning is required prior to approval of a conditional use permit, the application for
rezoning and the conditional use permit may be filed and acted upon simultaneously, however
the conditional use permit shall not be effective until zoning has been approved by the City
Commission.
18.34.090 SITE PLAN AND MASTER SITE PLAN REVIEW CRITERIA
A, In considering applications for site plan approval under this title, the Planning Director, Board
of Adjustment, City Commission, DRC, and when appropriate, the ADR staff, DRB or WRB
shall consider the following:
1. Conformance to and consistency with the City's adopted growth policy.
2. Conformance to this title, including the cessation of any current violations;
3. Conformance with all other applicable laws, ordinances and regulations;
4. Relationship of site plan elements to conditions both on and off the property,including:
a. Compatibility with, and sensitivity to,the immediate environment of the site and
the adjacent neighborhoods and other approved development relative to
architectural design, building mass and height, neighborhood identity,
landscaping, historical character, orientation of buildings on the site and visual
integration;
b. Design and arrangement of the elements of the site plan (e.g., buildings,
circulation, open space and landscaping, etc.) so that activities are integrated with
the organizational scheme of the community, neighborhood, and other approved
development and produce an efficient, functionally organized and cohesive
development;
C. Design and arrangement of elements of the site plan (e.g., buildings circulation,
open space and landscaping, etc.) in harmony with the existing natural
topography, natural water bodies and water courses, existing vegetation, and to
contribute to the overall aesthetic quality of the site configuration; and
d. If the proposed project is located within a locally designated historical district, or
includes a locally designated landmark structure, the project is in conformance
with the provisions of Chapter 18.28,BMC-
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5. The impact of the proposal on the existing and anticipated traffic and parking
conditions;
6. Pedestrian and vehicular ingress, egress and circulation, including:
a. Design of the pedestrian and vehicular circulation systems to assure that
pedestrians and vehicles can move safely and easily both within the site and
between properties and activities within the neighborhood area;
b. Non-automotive transportation and circulation systems design features to
enhance convenience and safety across parking lots and streets, including, but
not limited to,paving patterns, grade differences,landscaping and lighting;
C. Adequate connection and integration of the pedestrian and vehicular
transportation systems to the systems in adjacent developments and general
community, and
d. Dedication of right-of-way or easements necessary for streets and similar
transportation facilities;
7. Landscaping, including the enhancement of buildings, the appearance of vehicular use,
open space and pedestrian areas, and the preservation or replacement of natural
vegetation;
8. Open space,including:
a. The enhancement of the natural environment;
b. Precautions being taken to preserve existing wildlife habitats or natural wildlife
feeding areas;
C. If the development is adjacent to an existing or approved public park or public
open space area, have provisions been made in the site plan to avoid interfering
with public access to and use of that area;
d. Is any provided recreational area suitably located and accessible to the residential
units it is intended to serve and is adequate screening provided to ensure privacy
and quiet for neighboring residential uses;
e. For residential site plans, does the configuration of open space otherwise
required by this title provide for a minimum of 150 square feet landscaped area
per dwelling unit suitable for active recreational activities. Such required areas are
generally to be configured in one or more areas with a relationship between the
length and width of such area(s) to not exceed 3:1, a slope of 10 percent or less,
and without non-recreational structures or detention/retention ponds; and
f. For residential site plans unless otherwise provided through the subdivision or
planned unit development review process, is an amount of park land or its
equivalent equal to that required by�18.50.020, BMC for the proposed number
of dwelling units set aside within the project boundaries, and configured for
active recreational use by the residents of the project; or has the developer
proposed to provide its equivalent as may otherwise be allowed by this title.
9. Building location and height;
10. Setbacks;
11. Lighting;
12. Provisions for utilities, including efficient public services and facilities;
13. Site surface drainage and stormwater control;
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14. Loading and unloading areas;
15. Grading;
16. Signage;
17. Screening;
18. Overlay district provisions;
19. Other related matters, including relevant comment from affected parties; and
20. If the development includes multiple lots that are interdependent for circulation or other
means of addressing requirements of this title,whether the lots are either:
a. Configured so that the sale of individual lots will not alter the approved
configuration or use of the property or cause the development to become
nonconforming; or
b. The subject of reciprocal and perpetual easements or other agreements to which
the City is a party so that the sale of individual lots will not cause one or more
elements of the development to become nonconforming.
B. In considering applications for master site plan approval under this title, the City Commission,
DRC, and when appropriate,the ADR staff,DRB or WRB shall consider the following:
1. Conformance to and consistency with the City's adopted growth policy,
2. Conformance to this title, including the cessation of any current violations;
3. Conformance with all other applicable laws, ordinances and regulations;
4. A generalized site plan showing the orientation and relationships among key plan
elements both on and off the property, including:
a. Compatibility with, and sensitivity to, the immediate environment of the site and
the adjacent neighborhoods in terms of overall site organization and building
mass and height;
b. Arrangement of the elements of the site plan (e.g., buildings, circulation, open
space and landscaping, etc.) so that activities are integrated with the structure of
the surrounding area and produce an efficient,functionally organized and visually
cohesive development that contributes to the overall aesthetic quality of the area;
and
C. If the proposed project is located within a locally designated historical district, or
includes a locally designated landmark structure, a statement describing how the
project is in conformance with the provisions of Chapter 18.28,BMC;
5. A statement accompanying the site plan describing the generalized architectural character
and its relationship to and compatibility with the historical character of the area,
generalized landscape concept including treatment of public space and relationship to
the surrounding area, and visual and aesthetic integration of the proposed development
into the surrounding area and its effect on the identity of the adjacent neighborhood;
6. The impact of the proposed development on the existing and anticipated traffic and
parking conditions, including identification of the traffic generation and parking needs of
individual plan elements;
7. Pedestrian and vehicular ingress,egress and circulation,including:
a. Overall pedestrian and vehicular circulation systems to assure that pedestrians
and vehicles can move safely and easily both within the site and between
properties and activities within the neighborhood area;
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b. Non-automotive transportation and circulation systems design features to
enhance convenience and safety across parking lots and streets;
C. Adequate connection and integration of the pedestrian and vehicular
transportation systems to the systems in adjacent developments and general
community, and
d. Dedication and/or abandonment of rights-of-way or easements necessary for
efficient land use and accompanying streets and related transportation facilities;
8. Open space, if required under the zoning classification(s) of the proposed development,
including:
a. Enhancement of the natural environment;
b. Precautions being taken to preserve existing wildlife habitats or natural wildlife
feeding areas;
C. Provisions to avoid interfering with public access to and use of any adjacent
Parks, and Other open space;
d. Provision of recreational areas suitably located and configured, and accessible to
the residential units it is intended to serve; and
C. Adequacy of open space as required within this title;
9. Generalized building gross area (square feet), building locations, building envelopes, and
building heights;
10. Setbacks;
11. Generalized lighting concept as pertains to public safety,
12. Generalized provisions for utilities, including efficient public services and facilities;
13. Generalized site surface drainage and stormwater control;
14. Generalized locations of loading and unloading areas;
15. Generalized grading;
M. Statement regarding proposed signage;
17. Statement regarding screening of trash, outdoor storage and utility areas;
18. Overlay district provisions where applicable; and
19. Other related matters,including relevant comment from affected parties.
C. If the Planning Director, Board of Adjustment, or City Commission, after recommendation
from the DRC and, if appropriate,ADR staff,DRB and WRB shall determine that the proposed
site plan or master site plan will not be detrimental to the health, safety or welfare of the
community, is in compliance with the requirements of this title and is in harmony with the
purposes and intent of this title and the Bozeman growth policy, approval shall be granted, and
such conditions and safeguards may be imposed as deemed necessary. Notice of action shall be
given in writing.
D. Site plan approval or master site plan approval may be denied upon a determination that the
conditions required for approval do not exist. Persons objecting to the recommendations of
review bodies carry the burden of proof. A denial of approval shall be in writing.
E. Following approval of a master site plan, the applicant shall submit to the Planning Department,
sequential individual site plans for specific areas within the master site plan. Each subsequent
application for a site plan shall be consistent with the approved master site plan and subject to
the review criteria set forth in subsection A above. Evidence that the review criteria have been
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met through the master site plan review process may be incorporated by reference in order to
eliminate duplication of review.
18.34.100 BOARD OF ADjUSTMENTr YEO� MISSION CONSIDERATION AND
RECORD FOR CONDITIONAL USE PERMITS
A. The Board of AdjustmentQy-Cen-imis,i , in approving a conditional use permit, shall review
the application against the review requirements of 518.34.090,BMC;
B. In addition to the review criteria of�18.34.090,BMC,the Board of Adjustment
shall, in approving a conditional use permit,determine favorably as follows:
1. That the site for the proposed use is adequate in size and topography to accommodate
such use, and all yards, spaces, walls and fences, parking, loading and landscaping are
adequate to properly relate such use with the land and uses in the vicinity;
2. That the proposed use will have no material adverse effect upon the abutting property.
Persons objecting to the recommendations of review bodies carry the burden of proof;
3. nat any additional conditions stated in the approval are deemed necessary to protect
the public health, safety and general welfare. Such conditions may include, but are not
limited to:
a. Regulation of use;
b. Special yards,spaces and buffers;
C. Special fences, solid fences and walls;
d. Surfacing of parking areas;
e. Requiring street, service road or alley dedications and improvements or
appropriate bonds;
f. Regulation of points of vehicular ingress and egress;
g. Regulation of signs;
h. Requiring maintenance of the grounds;
i. Regulation of noise,vibrations and odors;
j. Regulation of hours for certain activities;
k. Time period within which the proposed use shall be developed;
1. Duration of use;
in. Requiring the dedication of access rights; and
n. Other such conditions as will make possible the development of the City in an
orderly and efficient manner.
C. The Board of Adjustmentsmnissie --shall, in addition to all other conditions, impose the
following general conditions upon every conditional use permit granted:
1. That the right to a use and occupancy permit shall be contingent upon the fulfillment of
all general and special conditions imposed by the conditional use permit procedure; and
2. That all of the special conditions shall constitute restrictions running with the land use,
shall apply and be adhered to by the owner of the land, successors or assigns, shall be
binding upon the owner of the land, his successors or assigns, shall be consented to in
writing, and shall be recorded as such with the County Clerk and Recorder's Office by
the property owner prior to the issuance of any building permits, final site plan approval
or commencement of the conditional use.
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D. Applications for conditional use permits may be approved, conditionally approved or denied by
motion of the Board of AdjustmentC&is . If an application is denied, the denial shall
constitute a determination that the applicant has not shown that the conditions required for
approval do exist.
E. The applicant shall be notified in writing of the action taken by the Board of AdjustmentQw
Caen within seven working days of its action. If the conditional use permit has been
granted the notification shall include any conditions, automatic termination date, period of
review or other requirements. If the conditional use permit has been granted,the permit shall be
issued upon the signature of the Planning Director after completion of all conditions and final
site plan.
18.34.110 CERTIFICATES OF APPROPRIATENESS - ADDITIONAL REVIEW
PROCEDURES AND REVIEW CRITERIA
A. Sign Proposals Which Do Not Specifically Conform to the Requirements of This Title.
Independent sign proposals (i.e., not in conjunction with other development) which do not
specifically conform to the requirements of this title, are required to submit full site plans.
Additional site design information, in sufficient detail to demonstrate compliance with the
Design Objective Plan, encompassing the property's location shall be provided. If no Design
Objectives Plan has been prepared for the location, additional site design information, if
necessary, shall be determined by the ADR staff. All signs shall comply with the dimensional
standards of this title unless a deviation or variance has been properly granted.
B. Review Procedures and Criteria for Certificates of Appropriateness.
1. Certificates of appropriateness shall only be issued according to procedures and criteria
specified in Chapters 18.28, 18.30, 18.36 and 18.62,BMC.
2. Sign proposals which specifically conform to the requirements of this title shall be
reviewed according to procedures and criteria outlined in Chapter 18.52, BMC.
18.34.120 PUBLIC NOTICE REQUIREMENTS
A. Public notice of development proposals and approvals subject to this chapter shall be provided
as required by Chapter 18.76,BMC.
18.34.130 FINAL SITE PLAN
A. No later than six months after the date of approval of a preliminary site plan or master site plan,
the applicant shall submit to the Planning Department a final site plan with accompanying
application form and review fee. The number of copies of the final site plan to be submitted
shall be established by the Planning Director. The final site plan shall contain the materials
required in %18.78.080 andl8.78.090 BMC and whatever revisions to the preliminary site plan
or master site plan are required to comply with any conditions of approval. Prior to the passage
of six months, the applicant may seek an extension of not more than an additional six months
from the Planning Director.
B. In addition to the materials required in subsection A of this section, the owner shall submit a
certification of completion and compliance stating that they understand any conditions of
approval and the submitted final site plans or master site plan have complied with any
conditions of approval or corrections to comply with code provisions.
C. In addition to the materials required in subsections A and B of this section, the owner shall
submit a statement of intent to construct according to the final site plan. Such statement shall
acknowledge that construction not in compliance with the approved final site plan may result in
delays of occupancy or costs to correct noncompliance.
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D. Following approval of a final site plan, the final site plan shall be in effect for one year. Prior to
the passage of one year, the applicant may seek an extension of not more than one additional
year from the Planning Director. In such instances, the Planning Director shall determine
whether the relevant terms of this title and circumstances have significantly changed since the
initial approval. If relevant terms of this title or circumstances have significantly changed, the
extension of the approval shall not be granted.
E. Following approval of a final master site plan, the final master site plan shall be in effect for not
more than five years. Owners of property subject to the master site plan may seek appropriate
extensions. Approval of an extension shall be made by the City Commission upon
recommendation of the Planning Director. Approval shall be granted if the City Commission
determines that the relevant terms of this title and circumstances have not significantly changed
since the initial approval.
F. Upon approval of the final site plan by the Planning Director the applicant may obtain a
building permit as provided for by Chapter 18.64,BMC.
1. Subsequent site plan approvals are required to implement a m p d
raster to s1Ll. an, ar�u
approval of a master site plan does not entitle an applicant to obtain any building
permits.
18.34.140 BUILDING PERMITS BASED UPON APPROVED SKETCH OR SITE PLANS
Based upon the approved sketch or final site plan (hereinafter referred to as "plan"), and after any
appeals have been resolved, a building permit for the site may be requested and may be granted pursuant
to Chapter 18.64, BMC. No building permit may be granted on the basis of an approved sketch or site
plan whose approval has expired.
18.34.150 AMENDMENTS TO SKETCH AND SITE PLANS
A. It is the intent of this section to assure that issues of community concern are addressed during
the redevelopment, reuse or change in use of existing facilities in the community. Specific areas
of community concern include public safety, mitigation of off-site environmental impacts and
site character in relation to surroundings. The following procedures for amendments to
approved plans, reuse of existing facilities and further development of sites assure that these
concerns are adequately and expeditiously addressed.
B. Any amendment to or modification of a site plan or master site plan approved under the
ordinance codified in this chapter (September 3, 1991 - Ordinance 1332) shall be submitted to
the Planning Director for review and possible approval. Proposals for further development,
reuse or change in use of sites developed pursuant to this title shall also be reviewed as an
amendment to an approved plan. All amendments shall be shown on a revised plan drawing.
Amendments to approved plans shall be reviewed and may be approved by the Planning
Director upon determining that the amended plan is in substantial compliance with the originally
approved plan. If it is determined that the amended plan is not in substantial compliance with
the originally approved plan, the application shall be resubmitted as a new application and shall
be subject to all standards and site plan review and approval provisions of this title. Substantial
compliance may be shown by demonstrating that the amendments do not exceed the thresholds
established in §18.34.170.B,BMC.
C. Modifications or amendments to a master site plan at the time an extension of approval is
sought may be proposed by either the applicant or the City Commission, and shall be based on
substantive current information that indicates that relevant circumstances have changed and that
such circumstances support the proposed modifications. Such circumstances may include
market analyses, economic conditions, changes in surrounding land uses, changes in ownership,
etc.
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18.34.160 MODIFICATION OR ENLARGEMENT OF STRUCTURES AUTHORIZED
UNDER A CONDITIONAL USE PERMIT
Any proposed additions, enlargements or modifications of the structures approved in any conditional
use permit, or any proposed extension of the use into areas not approved in any such permit, shall be
subject to this chapter.
18.34.170 REUSE, CHANGE IN USE OR FURTHER DEVELOPMENT OF SITES
DEVELOPED PRIOR TO THE ADOPTION OF THE ORDINANCE
CODIFIED IN THIS TITLE
A. Sites legally developed prior to the adoption of the ordinance codified in this title (September 3,
1991 - Ordinance 1332) shall be considered to have developed under an approved plan.
Proposals for reuse, change in use or the further development of sites legally developed prior to
the adoption of the ordinance codified in this title may be approved by the Planning Director
upon determining that no significant alteration of the previous use and site are proposed, and
upon review by the City Engineer or designee to assure that adequate access and site surface
drainage are provided. All such proposals shall be shown on a plan drawing as required by the
Planning Director.
B. The criteria for determining that no significant alteration of the previous use and site will result
from the proposed reuse, change in use or further development of a site shall include but not be
limited to the following:
1. The proposed use is allowed under the same zoning district use classification as the
previous use, however replacement of nonconforming uses must comply with the
provisions of Chapter 18.60,BMC;
2. Changes proposed for the site, singly or cumulatively, do not increase lot coverage by
buildings, storage areas, parking areas or impervious surfaces and/or do not result in an
increase in intensity of use as measured by parking requirements, traffic generation or
other measurable off-site impacts;
a. By more than 20 percent for developments not meeting one or more of the
criteria of§18.62.010.A.2.e; OR
b. By more than 10 percent for developments meeting or exceeding one or more of
the criteria of §18.62.010.A.2.e ;
3. The proposed use does not continue any unsafe or hazardous conditions previously
existing on the site or associated with the proposed use of the property.
C. If it is determined that the proposed reuse, change in use or further development of a site
contains significant alterations to the previous use and/or site, the application shall be
resubmitted as a new application and shall be subject to all plan review and approval provisions
of this chapter.
D. When proposals for reuse, change in use or further development of a site are located in the
neighborhood conservation or entryway corridor overlay districts, review by ADR staff or the
DRB maybe required to determine whether resubmittal as a new application is necessary.
18.34.180 IMPROVEMENTS TO EXISTING DEVELOPED SITES INDEPENDENT OF
SITE PLAN RE VIE W
A. The continued improvement of existing developed sites is desired to increase the level of
compliance with the provisions of this title. An applicant may propose improvements, not in
association with a site plan review, to increase conformity with the standards of this title for
landscaping, lighting, parking or similar components of a site to occur over a defined period of
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time, not to exceed three years. Such improvements shall be depicted on a site plan drawn to
scale and which shall be sufficiently detailed to clearly depict the current conditions,the intended
end result of the proposed improvements and any phasing of work. Such improvements shall be
reviewed by and approved at the discretion of the Planning Director. The Planning Director may
require surety in accordance with the terms of Chapter 18.74,BMC for work performed.
18.34.190 SPECIAL TEMPORARY USE PERMIT
A. Generally Uses permitted subject to a special temporary use permit are those temporary uses
which are required for the proper function of the community or are temporarily required in the
process of establishing a permitted use, constructing a public facility or providing for response
to an emergency. Such uses shall be so conducted that they will not be detrimental in anyway to
the surrounding properties or to the community. Uses permitted subject to a special temporary
use permit may include:
1. Carnivals,circuses, special events of not over seventy-two consecutive hours;
2. Tent revival meetings;
3. Swap meets; or
4. Such other uses as the Planning Director may deem to be within the intent and purpose
of this section.
B. Application and Filing Fee. Application for a special temporary use permit may be made by a
property owner or his authorized agent. Such application shall be filed with the Planning
Director who shall charge and collect a filing fee for each such application, as provided in
Chapter 18.64, BMC. The Planning Director may also require any information deemed necessary
to support the approval of a special temporary use permit,including site plans per this chapter.
C. Decision. Application for a special temporary use permit shall be reviewed by the Planning
Director who shall approve, conditionally approve or disapprove such application. Approval or
conditional approval shall be given only when in the judgment of the Planning Director such
approval is within the intent and purposes of this chapter.
D. Conditions. In approving such a permit, the approval shall be made subject to a time limit and
other conditions deemed necessary to assure that there will be no adverse effect upon adjacent
properties. Such conditions may include, but are not limited to,the following:
1. Regulation of parking;
2. Regulation of hours;
3. Regulation of noise;
4. Regulation of lights;
5. Requirement of bonds or other guarantees for cleanup or removal of structure or
equipment; and/or
6. Such other conditions deemed necessary to carry out the intent and. purpose of this
section.
18.34.200 APPEALS
Appeals of decisions rendered in conjunction with this chapter may be taken as set forth in Chapter
18.66, BMC. In such event, any plan review approval and associated right to proceed with development
shall be stayed until the appeal process has been completed.
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18.34.210 IMPROVEMENTS
Improvements depicted on an approved site plan shall be installed subject to the requirements of
Chapter 18.74,BMC.
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CHAPTER 18.62
DEVELOPMENT REVIEW COMMITTEE (DRC), DESIGN RE VIE W
BOARD (DRB), ADMINISTRATIVE DESIGN REVIEW STAFF (ADR),
® WETLANDS REVIEW BOARD (WRB), BOARD OF ADJUSTMENT
BOA
18.62.010 PURPOSE OF DRC,DRB, ADR,-AND WRB,AND BOA
A. Purpose. The Development Review Committee (DRC), Design Review Board (DRB),
Administrative Design Review staff (ADR) and Wetlands Review Board (WRB) are established
to coordinate, expedite and assure fair and equitable implementation of this title. The objective,
to be implemented through their procedures and deliberations, shall be to encourage
development quality that will enhance both the natural and built environments, with
consideration to present and future property values, and to carry out the purposes of this title.
All bodies authorized under tiles chapter m y call upon any City staff or other persons with
technical expertise, and may testify before any board, commission or other body upon the
subjects for which they have responsibility.
1. DRC. The DRC is established to evaluate all proposals subject to the provisions of this
title. The DRC is the body charged with reviewing items relating to public health and
safety.
a. The DRC shall act as an advisory body to the Planning Director for site plans
when no variance or deviation is requested; and
b. The DRC shall act as an advisory body to the City Commission for larger and
more complex proposals including conditional use permits, planned unit
developments, all site plans involving variances or deviations, divisions of land,
zone map amendments, annexations and other actions as requested by staff or
the City Commission.
2. DRB. The DRB is established to evaluate aesthetic considerations of larger and more
complex proposals which are likely to produce significant community impact and to
provide recommendations regarding such proposals to the Planning Director or City
Commission, subject to the provisions of this title.
a. The DRB shall act as an advisory body to the Planning Director for site plans
within overlay districts meeting one or more of the thresholds of subsection
A.2.e of this section when no variance or deviation is requested; and
b. The DR.B shall act as an advisor y body to file City CO1Tuinissioin regarding:
(1) Site plans within overlay districts meeting one or more of the thresholds
of subsection A.2.e of this section when variances or deviations are
requested;
(2) Conditional use permits located within overlay districts, but excluding
conditional use permits for the purpose of accessory dwelling units and
conditional use permits which do not create additional building area;
(3) Planned unit developments;
(4) Appeals from ADR decisions; and
(5) Review of applications for Large Scale Retail.
C. The DRB may develop, and after adoption by the City Commission, apply
specific guidelines related to such concerns as architectural appearance, landscape
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design and signage for the construction and/or alteration of structures, sites or
areas;
d. The DRB may review applicable development proposal applications for zoning
text amendments, or applications for moving, demolition or any other kind of
permit that may affect properties located within entryway corridors.
e.
The DRB has responsibility for projects subject to §18.34.040.B.
3. ADR. The ADR staff is established as the review body for aesthetic considerations of
smaller and less complex proposals which are less likely to produce significant
community impact and to provide recommendations regarding such proposals to the
Planning Director and City Commission,subject to the provisions of this title.
a. The ADR staff shall act as the approval authority for sketch plans within overlay
districts when no variance or deviation is requested;
b. The ADR staff shall act as an advisory body to the Planning Director for site
plans within overlay districts not meeting one or more of the thresholds of
§18.34.040.B when no variance or deviation is requested;
C. The ADR staff shall act as an advisory body to the Planning Director regarding
reuse/further development permits within overlay districts; and
d. The ADR staff shall act as an advisory body to the City Commission regarding
all sketch plans and site plans not meeting one or more of the thresholds
§18.34.040.B within overlay districts when variances or deviations are requested,
for conditional use permits for accessory dwelling units, conditional use permits
where no additional building area will be created, and non-PUD divisions of
land;
e. The ADR may develop, and after adoption by the City Commission, apply
specific guidelines related to such concerns as architectural appearance,landscape
design and signage for the construction and/or alteration of structures, sites or
areas; and
f. The ADR may review applicable development proposal applications for zoning
amendments, or applications for moving, demolition or any other kind of permit
that may affect properties located within entryway corridors.
4. WRB. The WRB is established to prepare functional assessments of regulated wetlands
that may be impacted by proposed regulated activities, evaluate the impacts proposed
regulated activities may have on delineated wetlands and to provide wetlands protection,
mitigation and/or enhancement recommendations regarding such proposals to the
Planning Director and City Commission,subject to the provisions of this title.
a. The WRB shall act as an advisory body to the Planning Director for sketch plans
and site plans when no variance or deviation is requested.
b. The WRB shall act as an advisory body to the City Commission for larger and
more complex proposals including conditional use permits, planned unit
developments, all site plans involving variances or deviations, divisions of land,
zone map amendments, and other actions as requested by staff or the
Commission.
5. BOA. The BOA is established consider zoning variances deviations, site_.�p.!Laa. wb.ich
inc:ludeva6ance or deviations.,_and conditional use permits, subject to the provisions of
this title. Variances and deviations are subject to Chapter 18.66 and conditional use
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permits are subject to Chapter 18.34 in addition to the other relevant aspects of this
title.
B. Development Review Committee Procedures Established. To implement this purpose, certain
procedures shall be adopted to include, but not be limited to, a regularly scheduled weekly or
biweekly meeting attended by representatives of each of the City departments charged with
development review. Each department shall have the abilityand authorityto require the DRCto
make a recommendation of denial when in their view the project can not meet the requirements
and review criteria of this title and acceptable conditions do not exist to cure the identified
failings of the project. Written meeting reviews, in the form of staff reports or summary reviews
prepared by the Planning Department, shall be made setting forth the DRC's recommendation
to the Planning Director or City Commission and reasons for requiring such conditions as may
be deemed necessary by the DRC. These records shall be preserved as part of the official file for
each development proposal. Lastly, the DRC shall generally follow "Robert's Rules of Order"
and may prepare and adopt supplemental procedural rules that will assure the accomplishment
of the stated purpose and promote the efficiency and effectiveness of the developmental review
process.
1. The DRC shall at a minimum be composed of the following personnel: City Engineer or
designee, Fire Marshal or designee,the Streets Superintendent or designee, the Sanitation
Superintendent or designee, the Water/Sewer Superintendent or designee, the Planning
Director or designee and the Building Official or designee. When necessary, other
members of the committee may include: the Director of Public Safety or designee, the
Superintendent of Facilities and Public Lands or designee, the Superintendent of
Recreation or designee, the City Manager or designee, with other individuals to be
included as necessary at the Planning Director's request.
2. When applicable, the DRC may solicit the input of non-City agencies and persons
including, but not limited to, the county subdivision review officer or designee, the
County Sanitarian or designee,the County Road Superintendent or designee, and state or
federal agencies,with other individuals to be included as necessary.
C. Design Review Board Procedures Established. To implement this purpose, certain procedures
shall be adopted to include, but not be limited to, a regularly scheduled weekly or biweekly
meeting attended by members of the DRB. Written meeting reviews setting forth decisions and
findings shall be made. These records shall be preserved as part of the official proceedings for
each developmental proposal. Lastly, the DRB shall generally follow"Robert's Rules of Order"
and may prepare and adopt supplemental procedural rules, upon the approval of the City
Commission, that will assure the accomplishment of the stated purpose and promote the
efficiency and effectiveness of the design review process.
1. The DRB shall consist of six professional and two nonprofessional members.
Professional members shall be degreed in their respective disciplines and/or otherwise
licensed or certified by their respective professional authorities. An appointment to a
term of service on the DRB is for two years. The professional contingent shall consist of
three architects and at least one architectural historian, and at least one landscape
architect or landscape designer. At least one of the professional members shall have
demonstrated expertise in urban design. Nonprofessional members shall be individuals
with an interest in, or knowledge of, urban design or historic preservation. No member
of the DRB shall serve concurrently as a member of the Planning Board or Zoning
Commission. A quorum of the DRB shall be four voting members and one of the
members constituting the quorum must be an architect. In the event a quorum of the
DRB may not otherwise be attained, the ADR staff may serve as alternates to prevent
delay in project reviews.
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2. In selecting the members, the City Commission shall give preference to residents of the
City of Bozeman. However, where a qualified professional resident is not available to
serve, the City Commission may appoint a professional member who practices
professionally, owns property or owns a business within the City. Where a
nonprofessional resident is not available to serve, the City Commission may appoint a
nonprofessional member who works,owns property or owns a business within the City.
D. Administrative Design Review Staff Procedures Established. To implement this purpose,
certain procedures shall be adopted for the administrative evaluation of a proposal without
public notice or comment, unless a deviation from the underlying zoning is requested. After a
proposal has been evaluated by the ADR staff, they shall issue a written decision that shall
include findings and may include a notice of required corrections. The ADR staff may call a
conference with the applicant to determine design alternatives, or the applicant may call a
conference with the ADR staff for the same purpose. Any such conference shall be conducted
prior to the issuance of a building permit for the proposal.
1. ADR staff shall consist of two Planning Department staff members. One member shall
be degreed or otherwise licensed or certified by his/her respective professional
authorities in an environmental design discipline such as architecture, landscape
architecture or urban design. The second member shall be the Planning Director or
his/her designee who may or may not be degreed in architecture. In the event that
necessary ADR staff is not available,the DRB may act to provide design review services.
E. Waiver of Design Review. In the event that neither the DRB nor the ADR staff as established
in this chapter are able to complete a quorum or have the necessary personnel to conduct the
reviews otherwise required by this title, the requirement for review by DRB or ADR is waived.
Nothing in this section shall constitute a waiver of the required review criteria established in
Chapters 18.28, 18.30, 18.36,and 18.56,BMC.
F. Wetlands Review Board Procedures Established. The WRB will be convened as necessary to
review proposals that involve regulated activities and may impact regulated wetlands based on
the provisions contained in Chapter 18.56, BMC. To implement this purpose, certain
procedures shall be adopted to include, but not be limited to, scheduling meetings as needed to
be attended by members of the WRB. Written meeting reviews setting forth decisions and
findings shall be made. These records shall be preserved as part of the official proceedings for
each development proposal. Lastly, the WRB shall generally follow "Robert's Rules of Order"
and may prepare and adopt supplemental procedural rules, upon the approval of the City
Commission, that will assure the accomplishment of the stated purpose and promote the
efficiency and effectiveness of the wetland review process.
1. The WRB shall consist of six members. An appointment to a term of service on the
WRB is for two years. Members shall be degreed in their respective disciplines and/or
otherwise licensed or certified by their respective professional authorities.Members shall
consist of at least one biologist, one soil scientist, one plant scientist, and one
hydrologist.
2. In selecting the members, the City Commission shall give preference to residents of the
City of Bozeman. However, where a qualified resident is not available to serve, the City
Commission may appoint a member who practices professionally, owns property or
owns a business within the City.
G. Board of Adjustment Procedures Established. The BOA will be convened as necessary to
review applications for variances or deviations or applications involving variances or deviations.
The BOA will also review applications for conditional use permits. To implement this purpose,
certain procedures shall be adopted which may include, without limitation, a regularly scheduled
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weel& or biweekly meeting attended by members of the BOA. A record of the reviews and
decisions shall be made. These records shall be preserved as part of the official proceedings for
each development proposal. Lastly the BOA shall generally follow "Robert's Rules of Order"
and may prepare and adopt supplemental procedural rules, upon the approval of the City
Commission that will assure the accomplishment of the stated purpose and promote the
efficiency and effectiveness of the review process.
1. The BOA shall consist of [option for 5-7] members. The term of appointment is for 3
,years with staggered terms. Members shall be appointed by the City Commission. A member
may be removed per Section 76-2-322, MCA. The concurring vote of four members of the
board is required to take official action.
2. In selecting the membersjtbe f the
City of Bozeman However, where a aualified resident is not available to serve the City
Commission Ana ppoint a member rho practices professionally, owns propezt
owns a business within the City,. Preference should be given to applicants who have prior
experience with local government, who will uphold the intent and purpose of the Cites
land use regulations, and who will honor the purpose of a Board of Adjustment.
18.62.020 GENERAL PROCEDURES,NOTICE AND TIMING
A. Informal Advice and Direction. A person or organization considering any construction, building
or site alteration, rezoning or other development activity, may approach the DRC, DRB, ADR
or WRB for informal advice and direction. Such discussion shall be treated as advisory by both
parties and shall record only the fact that contact had been made. An informal review by the
DRC and/or DRB may be requested by submitting a completed application form provided by
the Planning Director along with any schematic development plans or written narrative at least
one week prior to the next regularly DRC and/or DRB meeting. An informal review by the
WRB may be requested by submitting a completed application form provided by the Planning
Director along with a wetland delineation for the regulated wetland, development plans or
written narrative describing the proposed regulated activity and a WRB meeting will be
convened within two weeks of application submittal. The initial informal review by an applicant
or owner for a specific parcel shall be conducted without a fee. A fee,set in accordance with the
fee resolution adopted by the City Commission, shall be charged for a second or subsequent
informal review requested by the same applicant and/or owner for the same real property as a
prior informal review. No application is required for informal review or advice by the ADR staff.
B. Formal Application. An application for DRC, DRB, ADR and/or WRB consideration of a
development proposal must be submitted utilizing a form available from the Planning Director.
Material to be submitted with the application shall include the elements set forth within the
requirements for the type of proposal to be considered, i.e., sketch plan, site plan, conditional
use permit, certificate of appropriateness, planned unit development, divisions of land, etc. as
outlined in this title. It is recommended that the applicant discuss the application informally with
the DRC, DRB, ADR or WRB prior to formal submission to help expedite the process.
Depending upon the size of the proposed project, its location and type, the applicant may be
directed to one or more agencies of the City for processing.
C. Public Notice. Public notice for any proposal before the DRC, DRB, ADR or WRB that
requires such notice shall be provided in accordance with Chapter 18.76,BMC.
D. DRC DRB ADR or WRB Action. By no later than 30 working days from the date of the first
regularly scheduled DRC and/or DRB meeting, or a meeting convened by the WRB, at which
the applicants' proposal was initially reviewed, the DRC, DRB or WRB shall take action to
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recommend approval, approval with conditions, table pending submission of revised or
additional materials or recommend denial of the applicant's proposal, unless the applicant grants
a written extension to the review period. For proposals subject to ADR review, the ADR staff
shall recommend approval, approval with conditions, delay pending submission of revised or
additional materials or denial of the applicant's proposal.
E. BOA Action. After the applicants'proposal is found sufficient for review,the schedule for BOA
action to approve, approve with conditions, table pending submission of revised or additional
materials,or den,, t�pplicant's proposal shall be established.
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CHAPTER 18.64
ADMINISTRATION, FEES AND PENALTIES
18.64.010 REVIEW AUTHORITY
A. The City Commission has the right to review and require revisions to all development proposals
subject to this title, and delegates that authority in certain circumstances as set forth below to the
Planning Director, reserving to itself the right to hear appeals from decisions of the Planning
Director. The purpose of this review is to prevent demonstrable adverse impacts of the
development upon public safety, health or general welfare, or to provide for its mitigation; to
protect public investments in roads, drainage facilities, sewage facilities,water facilities, and other
facilities; to conserve the value of adjoining buildings and/or property, to protect the character
of Bozeman; to protect the right of use of property; advance the purposes and standards of this
title and the adopted growth policy, and to ensure that the applicable regulations of the City are
upheld.
B. The Planning Director shall,upon recommendation from the DRC,DRB,ADR or WRB as may
be applicable approve, approve with conditions or deny all applications subject to this title,
except master site plans, conditional use permits, planned unit developments and subdivisions,
or any application involving deviations or variances. Decisions of the Planning Director are
subject to the appeal provisions of Chapter 18.66,BMC,
1. Exception. The City Commission may, by an affirmative vote of four of its members at a
regularly scheduled meeting reclaim to itself the final approval of a development
normally subject to the approval of the Planning Director. The vote shall occur prior to
the action of the Planning Director.-
C. The Board of Adjustment shall, upon recommendation from the DRC, DRB, ADR or VM as
may be applicable approve, approve with conditions or denapplications for all variances and
deviations, site/sketch plans with variances or deviations, or conditional use permits subject to
this title,except planned unit developments and subdivisions. Decisions of the BOA are subject
to the appeal provisions of Chapter 18.66,BMC,
1. Exception. The City Commission may, by an affirmative vote of three of its members at
a regularly scheduled meeting reclaim to itself the final approval of a development
normally subject to the approval of the Board. of Adjustment. The vote shall occur prior
to the action of the Board of Adjustment.
D.C. As detailed in Chapter 18.62, BMC, the City Commission authorizes the Development Review
Committee, Design Review Board, administrative design review staff and/or Wetlands Review
Board, as applicable, to review and to make recommendations to the Planning Director or City
Commission regarding development proposals.
E.-D. The City Commission or its designated representatives may require the applicant to design the
proposed development to reasonably minimize potentially significant adverse impacts identified
through the review required by these regulations. The City Commission or its designated
representatives may not unreasonably restrict a landowner's ability to develop land, but it is
recognized that in some instances the unmitigated impacts of a proposed development may be
unacceptable and will preclude approval of the development as submitted. Recognizing that the
standards of this title are minimum requirements and the public health, safety, and general
welfare may be best served by exceeding those minimums, the City Commission or Planning
Director may require as a condition of approval, additional landscaping, screening, timing
requirements,setbacks or other mitigation exceeding the minimums of this title.
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18.64.020 ADMINISTRATION AND ENFORCEMENT - PLANNING DIRECTOR
AUTHORITY
A. The Planning Director, or his/her designated representative, shall administer and enforce this
title. He/she may be provided with the assistance of such other persons as the Planning Director
may supervise and those assistants shall have essentially the same responsibilities as directed by
the Planning Director.
B. The Planning Director may in the administration of this title consult with other persons having
expertise in relevant subject areas as in his/her opinion is necessary for the review of the
proposed development or administration of the title.
C. If the Planning Director shall find that any of the provisions of this title are being violated,
he/she shall notify in writing the person responsible for such violations, indicating the nature of
the violation and ordering the action necessary to correct it. He/she shall order discontinuance
of illegal use of land, illegal additions, alterations or structural changes; discontinuance of any
illegal work being done; or shall take any other action authorized by this title to ensure
compliance with or prevent violation of its provisions.
18.64.030 ENFORCEMENT - PLANNING DIRECTOR
This title shall be enforced by the Planning Director and his/her authorized representatives. No
development approval, subdivision approval, building permit or business or occupational use license
shall be issued,except in compliance with the provisions of this title.
18.64.040 STOP-WORK ORDER- PLANNING DIRECTOR, BUILDING OFFICIAL, CITY
ENGINEER AUTHORITY
Whenever any subdivision, development or building work is being done contrary to the provisions of
this title, the Planning Director shall order the work stopped by notice in writing served on any person
engaged in doing or causing such work to be done, and any such person shall forthwith stop such work
until authorized by the Planning Director to proceed with the work. The Building Official or City
Engineer may also issue a stop-work order when building work is being done contrary to the provisions
of this title.
18.64.050 PERMISSION TO ENTER
The City Commission, or its designated agents, may conduct such investigations, examinations and site
evaluations as they deem necessary to verify the information supplied. The submission of material or a
plat for review shall constitute a grant of permission to enter the subject property.
18.64.060 INACCURATE OR INCOMPLETE INFORMATION AND WAIVERS
A. The City shall review each submitted application for completeness and sufficiency as
described in§§ 18.06.040 and 18.34.070,BMC.
B. The final approval body may withdraw approval or conditional approval of a preliminary plat or
other development approval if they determine that information provided by the applicant, and
upon which approval or conditional approval of the preliminary plat or other development was
based, is inaccurate or incomplete.
1. Within thirty calendar days following approval or conditional approval of a preliminary
plat or other development application, any person or agency that claims that information
provided by the applicant is inaccurate or incomplete may submit the information and
proof to the planning department.
2. The Planning Department shall investigate the claim,the accompanying information and
proof, and make a report to the final approval authority (City Commission or the
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Planning Director) within thirty working days after receipt of the information. If the
final approval authority is the City Commission, the Commission shall consider the
information and proof, and shall make a determination regarding the claim at a regular
meeting. Notice of the meeting or presentation of the report shall be given to the
claimant and the applicant.
18.64.070 COORDINATED REVIEWS
When a proposed subdivision, development or use is also proposed to be annexed to the City of
Bozeman, the City shall coordinate the development review and annexation procedures to minimize
duplication of hearings, reports, and other requirements whenever possible. The City Commission shall
also hold joint public hearings on the initial zoning and the annexation whenever possible. Based upon
the circumstances of proposed development the City may require sequential review of applications.
18.64.080 DATE OF SUBMITTAL AND ASSOCIATED REVIEW STANDARDS
A. Subdivision. Review and approval or disapproval of a subdivision under these regulations may
occur only under those regulations —in effect at the time a subdivision application for approval of
a preliminary plat is deemed sufficient according to §18.06.040, BMC, or for an extension under
Chapter 18.06, BMC is submitted to the City of Bozeman.
B. Non-subdivision. Review of nonsubdivision applications shall be under such regulations as are
in effect at the time an application for approval of a preliminary site plan is deemed complete
according to � 18.34.070, BMC; except that an interim zoning ordinance adopted according to �
76-3-306, MCA shall apply to a nonsubdivision application without limitation to the date of
completeness of the application until final action has been taken on the application. .An
applicant may waive, in writing, the shield from changing ordinances established by this section.
In the event that such waiver is provided, the non-subdivision application shall be reviewed
under the ordinances in effect on the date of the final action on the application.
18.64.090 PLANNING DIRECTOR AND BUILDING OFFICIAL - PLAN APPLICATION
CHECKING- NOTICE OF NONCOMPLIANCE
A. It is the intent of this title that the Planning Director and Building Official, or their designees,
shall check all development plans and applications for permits for compliance with this title both
before and during construction.
B. If, during this procedure, the Planning Director and/or the Building Official deems that the
proposed plan or construction does not comply with this title, he shall inform the applicant of
the infraction and shall stop all construction on the project until such time as the applicant,
builder or principal revises his plan to conform to this title and/or fulfills the requirements of
any mandated review procedure(s) as set forth in this title.
18.64.100 BUILDING PERMIT REQUIREMENTS
No building or other structure shall be erected, moved, added to or structurally altered and no land use
shall be changed without valid permits as prescribed in this chapter.
A. Only minor site surface preparation and normal maintenance shall be allowed prior to
conditional approval by the appropriate review authority and the issuance of a building permit,
providing that such activity does not in excavation for foundations or the removal of
mature, healthy vegetation. Upon conditional approval by the appropriate review authority,
excavation for foundations and the preparation of forms may occur. However, no concrete shall
be poured and no further construction shall commence until final site or sketch plan approval
has been granted and until building permits have been issued.
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1. EXCEPTION: When construction and funding of public streets are occurring under
the provisions of Chapter 18.36, BMC, Planned Unit Development (PUD), the issuance
of building permits may be allowed prior to completion of infrastructure improvements,
pursuant to the provisions established in Chapter 18.74,BMC.
B. Building Permit. Within the limits of the City, building permits shall be obtained by following
the latest version of the International Building Code (International Code Council, 5360 South
Workman Mill Road,Whittier, California) adopted by the City.
C. The building permit shall be obtained by application to the Building Official. Applications shall
be accompanied by plans in duplicate, drawn to scale showing the actual dimensions and shape
of the lot to be built upon; the legal description of the parcel; the exact sizes and location on the
lot(s) of buildings already existing, if any, the location and dimensions of the proposed buildings
or alternatives; and two copies of the approved site plan or sketch plan as approved under
Chapters 18.34, 18.36, etc. of this title.
D. One copy of the plans shall be returned to the applicant after the Building Official and Planning
Director have marked each copy eIti ier as approved or dls approved and attested to sable by then
signatures. The second copy similarly marked shall be retained by the Building Department.
E. Approval of any plan that has been granted based upon false information provided by the
applicant shall be deemed void without requirement for further action by the City.
F Based upon an approved sketch, site plan, certificate of appropriateness, conditional use permit
or planned unit development (hereinafter referred to as "plan"), and after any appeals have been
resolved, a building permit for the site may be requested and may be granted, provided such
building permit is granted within one year of plan approval. Prior to lapse of one year, the
applicant may seek an extension of one additional year from the Planning Director. In such
instances, the Planning Director shall determine that the terms and circumstances have not
significantly changed since the initial approval.
18.64.110 PERMIT ISSUANCE - CONFORMITY WITH REGULATIONS REQUIRED
No permit or license of any type shall be issued unless in conformance with the regulations contained
within this title. Permits issued on the basis of plans and applications approved by the Building Official
and Planning Director authorize only the use, arrangement and construction set forth in such approved
plans and applications, and no other use, arrangement or construction. Use, arrangement or
construction at variance with that authorized shall be deemed a violation of this title, punishable as
provided in this chapter.
18.64.120 PERMITS ISSUED CONTRARY TO TITLE DEEMED VOID
.Any authorization, including without limitation subdivision approval, site plan approval or building
permit, issued, granted or approved in violation of the provisions of this title shall be null and void and
of no effect without the necessity of any proceedings or a revocation or nullification thereof, and any
work undertaken or use established pursuant to any such building permit or other authorization shall be
unlawful.
18.64.130 EXPIRATION OF PERMITS
Every permit issued by the Building Official under the provisions of this title shall expire by limitation
and become null and void if the building or work authorized by such permit has not commenced within
180 calendar days from the date of such permits, or if the building or work authorized by such permit is
suspended or abandoned at any time after the work is commenced for a period of 120 calendar days.
Before such work can be recommenced, a new permit shall first be obtained to do so, and the fee
therefore shall be one-half the amount required for a new permit for such work, provided no changes
64-4
have been made or will be made in the original plans and specifications for the work, and provided
further that such suspension or abandonment has not exceeded one year.
18.64.140 FEE SCHEDULE
A. The City Commission shall establish a schedule of fees, charges and expenses and a collection
procedure for reviews, permits, appeals and other matters pertaining to this title. The schedule
of fees for the procedures listed below shall be set from time to time by the City Commission by
resolution. The fees shall be available in the office of the Planning Director and may be altered
or amended only by the City Commission.
B. No subdivision, permit, zone change, site plan, conditional use, special temporary use, planned
unit development, deviation or variance shall be issued unless or until such costs, charges, fees
or expenses have been paid in full, nor shall any action be taken on proceedings before the
administrative design review staff, Development Review Committee, the Design Review Board,
the Zoning Commission, the Planning Board or the City Commission until fees have been paid
in full.
18.64.150 COMPLAINTS OF ALLEGED VIOLATIONS- FILING AND RECORDING
Whenever a violation of this title occurs or is alleged to have occurred, any person may file a written
complaint. Such complaint, stating fully the causes and basis thereof shall be filed with the Planning
Director. He shall record properly such complaint and immediately investigate and take action thereon
as provided by this title.
18.64.160 VIOLATION - PENALTY - ASSISTING OR ABETTING - ADDITIONAL
REMEDIES
A. Violation of the provisions of this title or failure to comply with any of its requirements
including violations of conditions and safeguards established in connection with the grant of
variances or conditional uses or any of the required conditions imposed by the Planning
Director and/or City Commission shall constitute a misdemeanor. Any person who violates this
title or fails to comply with any of its requirements shall upon conviction thereof be fined or
imprisoned or both, as set forth in state law regarding subdivision and zoning, and in addition
shall pay all costs and expenses involved in the case except as stated in subsection D of this
section.
1. Each day such violation continues shall be considered a separate offense and punishable
as such.
2. For violations relating to plats each sale, lease or transfer of each separate parcel of land
in violation of any provision of these regulations or the Montanan Subdivision and
Platting Act shall be deemed a separate and distinct offense.
B. The code compliance officer is authorized to issue a notice to appear under the provisions of
�46-6-310,MCA to anyviolator of this title.
C. The owner or tenant of any building, structure, premises or part thereof, and any architect,
builder, contractor, agent or other person who commits, participates in, assists or maintains such
violation may each be found guilty of a separate offense and suffer the penalties herein provided.
D. If transfers not in accordance with these regulations or the Montana Subdivision and Platting
Act are made, the City Attorney shall commence action to enjoin further sales or transfers and
compel compliance with all provisions of these regulations. The cost of the action must be
imposed against the party not prevailing.
E. When a violation has not been corrected by the property owner after written notice from the
City, the enforcement officer or Planning Director may seek approval for filing at the Gallatin
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County Clerk and Recorder's Office a Notice of Violation or Noncompliance. Such notice shall
serve to advise potential purchasers of existing violations of this title or of on-going
enforcement actions regarding a property. Such notice shall clearly state that the parcel or
development on the parcel is in violation of this title and that correction of the violation must be
made prior to the City approving additional development or redevelopment of the site. The
notice shall also describe the nature of the violation and applicable citations to the relevant
sections of this title.
1. When such a notice is to be filed the enforcement officer shall either:
a. Through the office of the City Attorney bring an action for civil and/or
injunctive relief that requests a court order to record a Notice of Violation or
Noncompliance; or
b. Schedule a public hearing to be held before the City Commission with the
intention of receiving an order from the City Commission confirming the validity
of the violation and the need for correction, and authorizing the recording of the
Notice of Violation or Noncompliance. i-�otice of such a hearinng shall be
provided as required by Chapter 18.76,BMC.
2. When a violation has been corrected for which a Notice of Violation or Noncompliance
was filed, the City shall record a release of noncompliance indicating that the prior
violation has been corrected. The property owner is responsible for notifying the
Planning Department in writing of the correction of the violation or noncompliance.
Upon receipt of such notification by the property owner, the enforcement officer shall
conduct an inspection to verify correction prior to the recording of the release.
F. The City may maintain an action or proceeding in a court of competent jurisdiction to compel
compliance with, or to restrain by injunction the violation of, any provision of this title.
G. Nothing herein contained shall prevent the City from taking such other lawful action as is nec-
essary to prevent or remedy any violation.
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CHAPTER 18.66
APPEALS, DEVIATIONS AND VARIANCE PROCEDURES
18.66.010 PURPOSES
A. This chapter is adopted:
1. To establish procedures for granting relief from the requirements of this title subject to
the standards of this chapter in order to preserve equitable implementation of the law,
prevent special treatment to particular parties and preserve the various rights established
by the Montana and United States constitutions of all persons subject to this title;
2. To provide through appeals of administrative interpretations a procedure for
consideration of and resolution of disputes regarding the meaning and implementation
of this title;
3. To provide through deviations a procedure for flexibility, as a means to support
creativity and excellence of design, in the application of the standards of this title in
overlay districts and planned unit developments as provided for in this title;
4. To provide through zoning variances a procedure for relief from the occasional
inequities created by the physical standards of this title relating to zoning when such
standards create a substantially unequal burden on a particular parcel of land in a fashion
that would otherwise prevent the reasonable use of property, owing to physical
circumstances unique to that parcel;
5. To prohibit the granting of variances that would be contrary to the public interest and
endanger public health, safety and welfare;
6. To provide through subdivision variances a procedure for relief from standards relating
to platting requirements or improvements within public rights-of-way when such
standards would result in undue hardship and are not essential to the public health,
safety and general welfare; and
7. To allow for appeals from decisions made by administrative staff approving, approving
with conditions or denying applications for development approval.
B. The Board of AdjustmentQty r.,;�� shall hear and decide appeals of administrative
decisions,variances and deviations as follows:
1. Hear and decide appeals where it is alleged there is error in any order, requirement,
decision or determination made by an administrative official in the enforcement of this
title or of any standards adopted pursuant thereto. An aggrieved person may appeal the
final decision of the Planning Director in the manner provided in this chapter;
2. Authorize in specific cases such deviations from the terms of this title relating to zoning
as will advance the intent and purposes of this title and meet the standards established
for the granting of deviations;
3. Authorize in specific cases such zoning variances from the physical standards of this
title, exclusive of those items included as subdivision variances, that will not be contrary
to the public interest, where owing to special conditions a literal enforcement of the
provisions will result in unnecessary hardship, and so that the spirit of this title shall be
observed and substantial justice done-.�
C. The City Commission shall hear and decide appeals of administrative decisions, variances and
deviations as follows:
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1. When Reclaimed per Section 18.64.010.C,BMC.
a. Hear and decide appeals where it is alleged there is error in any order,
requirement, decision or determination made by an administrative official in the
enforcement of this title or of any standards adopted pursuant thereto. An
aggrieved person may appeal the final decision of the Planning Director in the
manner provided in this chapter;
b. Authorize in specific cases such deviations from the terms of this title relating to
zoning as will advance the intent and purposes of this title and meet the
standards established for the granting of deviations; and
C. Authorize in specific cases such zoning variances from the physical standards of
this title exclusive of those items included as subdivision variances that will not
be contrary to the public interest, where owing to special conditions a literal
enforcement of the provisions will result in unnecessary hardship and so that the
spirit of this title shaIl be observed and substantial justice done.
2.4. Authorize in specific cases such subdivision variances from the platting requirements
and standards for improvements within public rights-of-way required by this title where
it is found that strict compliance would result in undue hardship and is not essential to
the public health,safety and general welfare.
3. Consider appeals from decisions of the Planning Director regarding subdivision
exemptions.
4. Consider deviations to standards of the title when proposed through a planned unit
development.
18.66.020 HEARING AND NOTICE REQUIREMENTS
A. There shall be a hearing before the Board of Adjustment or City Commission for any appeal of
administrative decisions and interpretations and for each application for any variance or
deviation. The hearing shall be held at an appointed time and place. Testimony shall be taken by
the BOA or Commission from persons interested in the application and from the Planning
Department staff.
B. The Planning Director or Clerk of the Commission shall give public notice as required by
Chapter 18.76, BMC of all public hearings to be held before the BOA or City Commission.
Notification of appeal procedures shall be included in the initial posting and notice of the
proposal,provided that an initial posting and notice is required by Chapter 18.76,BMC.
18.66.030 ADMINISTRATIVE PROJECT DECISION APPEALS
A. An aggrieved person may appeal the final decision of the Planning Director in the manner
provided in this section. Any appeal of a final administrative decision to approve, approve with
conditions or deny an application shall be an appeal on the basis of the information available to
the Planning Director including this title, all submitted application materials, review and
recommendations by administrative staff or advisory bodies, public comment and such other
materials as were available. Denial of requests for waiver or alteration of applicable regulations is
not a decision subject to appeal of an administrative decision. This section shall also apply to
decisions by the Planning Director regarding evasion of the Subdivision and Platting Act per
§18.10.070,BMC.
B. Application of Appeal Procedures. Appeals from administrative staff to the BOA, City
Commission, or the courts are set forth in the various sections of this title. Said appeals are
permitted under the provisions of this section in the manner set forth herein.
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1. These appeal procedures shall apply to the decisions brought forth by the Planning
Director.
2. Appeals shall be from the Planning Director to the BOA according to
Section 18 66.010 BMC.
3. In reviewing an appeal the B shall consider the application as if it
were the original approval.
C. Filing of Notice of Appeal. An appeal shall be taken by filing with the Planning
Department e&,-& �� a notice of intent to appeal by 5:00 pm on the fourth
business day following the final decision of the Planning Director, and a documented appeal and
appeal fee within seven business days of the final decision of the Planning Director. Such notice
of intent to appeal shall include the following:
1. The action of the Planning Director which is the subject of the appeal; and
2. The date of such action.
D. Appeal Contents. In all cases, the complete appeal app1ucation shall include, and shall not be
deemed filed until, all of the materials required by�18.78.140,BMC is submitted.
E. Notice of Appeal. Once a complete appeal has been filed and a hearing date is set, notice of the
appeal shall be provided in the same fashion as was required for notice of the initial application.
The date, time and location for the public hearing on the an-appeal before the City G'emmiss-ii-en
shall be included in the required notice of the appeal.
F. Scheduling of the Hearing. Within seven working daysUpei1 of receipt of a complete appeal
application the�'Plannina Director shall consult with the chairman of the BOA to schedule the
hearing�date.
i+fir\f^i� �}t +thc—cviisrus� oii—S�&�—F.—1l�f'—cl��re„� +l fie, a ai b
SE� GCL oty lGi'ist i.IJ"CJ'ie'i'i—L�' e'ii.�nC["(.ti[vl.� di ding �,n �:�1� JT�,-• n1TSliZc��i.,iLn.-�„
y
1--4— A_ thirtAvverking days of the agenda item te set the hearing date.
G. Material. The material to be considered by the BOA City-C,___:ssien shall be the record of the
project review, including the Planning Director's decision, in addition to materials that may be
submitted during the processing and review of the appeal.
1. No less than fourteen calendar days prior to the appeal hearing before the BOACity
Ceixiissisn the Planning Department shall transfer the entire record of the application
to the BOACiFinissien.
2. Any materials submitted by the appellant shall be provided to the BOA—C4-
Cessien no less than fourteen calendar days prior to the appeal hearing before the
B OACit �n.
H. Procedure of the Hearin. At the hearing on the appeal, the following procedure shall be
followed:
1. Only arguments and evidence relevant to the application shall be presented. The
presentation shall be made in the following order, subject to such limitations, in time and
scope as may be imposed at the discretion of the presiding officer:
a. Explanation of the application and nature of the appeal and presentation by
Planning Department staff;
b. Presentation of position by the applicant and/or representative;
C. Presentation by any person who is a proponent or an opponent of the
application;and
d. Motion,discussion and vote by the BOACityCo is4&n.
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2. No person making a presentation shall be subject to cross-examination except that
members of the BOAfissien and the City Attorney may inquire of such
person for the purpose of eliciting information and for the purpose of clarifying
information presented.
I. Alternative Actions Available to the Appellate Body. At the conclusion of the hearing, the
BOA i shall approve, approve with conditions or deny the application.
18.66.040 ADMINISTRATIVE INTERPRETATION APPEALS
A. A request for appeal of an interpretation of this title, including classifications of use per Chapter
18.14, BMC, shall be made by filing an application, with appropriate fees, with the Planning
Department within 30 calendar days of the interpretation decision.
Within seven working days of receipt of a complete appeal application. the Planning Director
shall consult with the chairman of the BOA to schedule the hearing date. Aftef i!eee_1i ing-a
In all cases, the complete application shall include, and shall not be
deemed filed until, all of the materials required by§18.78.150,BMC are submitted.
B. The BOACe mis-aien shall cause to be made such investigation of facts bearing on the
application as will provide necessary information to assure that the action on each such
application is consistent with the intent and purpose of this title. During time of appeal all
construction shall cease and shall not commence until approved by the BOA - .
C. When interpreting the meaning of this title, subsections of the ordinance shall be construed in a
manner that will give effect to them all as the ordinance derives its meaning from the entire body
of text taken together.
D. The concurring vote of four members of the BOA-Eer�ien shall be necessary to reverse any
order, requirements, decisions or determination of any administrative official, or to decide in
favor of the applicant.
18.66.050 DEVIATIONS
All requests for deviations in the neighborhood conservation overlay district, entryway overlay districts
or through the PUD process shall be heard by the BOA . Deviations may only be
applied for in conjunction with submittal of a development proposal of a type authorized by Chapters
18.34 and 18.36, BMC. Standards and criteria for award of deviations are contained in Chapters 18.28,
18.30 and 18.36, BMC. The concurring vote of fourthree members of the BOACity—Commiisien shall
be necessary to grant requested deviations to this title. The granting of a deviation is an exercise of
administrative power that can effect no change in the ordinance. A deviation may be granted only in a
specific instance permitting a nonconformity in order to accomplish the specific objectives of Sections
18.28.070, 18.30.080, and 18.36.030.D., and provided the standards and criteria imposed are met.
Deviations shall not be granted for relief from procedural requirements, or to waive or vary the
application of an ordinance provision imposing specific safety requirements, or to waive or vary the
application of other ordinances or statutes
18.66.060 ZONING VARIANCES
A. Application. A request for one or more variance(s) shall be made by filing an application, with
appropriate fees, with the Planning Director at least 30 calendar days prior to the BOA
hearin Cemmissiei�zneetuxg and shall be accompanied by the materials described. in §18.78.160,
BMC.
B. Investigation of Facts. The BOAC&� shall cause to be made such investigation of facts
bearing on the application as will provide necessary information to assure that the action on each
such application is consistent with the intent and purpose of this title.
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C. Criteria for Consideration and Findings. In acting on an application for a variance, the
BOACe� shall designate such lawful conditions as will secure substantial protection for
the public health, safety and general welfare, and shall issue written findings setting forth factual
evidence that the variance meets the standards of 76-2-323,MCA in that the variance:
1. Will not be contrary to and will serve the public interest;
2. Is necessary, owing to conditions unique to the property, to avoid an unnecessary
hardship which would unavoidably result from the enforcement of the literal meaning of
this title:
a. Hardship does not include difficulties arising from actions, or otherwise be self-
imposed, by the applicant or previous predecessors in interest, or potential for
greater financial returns; and
b. Conditions unique to the property may include, but are not limited to, slope,
presence of watercourses, after the fact imposition of additional regulations on
previously lawful lots, and governmental actions outside of the owners control;
3. Will observe the spirit of this title, including the adopted growth policy, and do
substantial justice;
4. In addition to the criteria specified above, in the case of a variance relating to the flood
hazard provisions of Chapter 18.58,BMC:
a. Variances shall not be issued for areas within a floodway if any additional
increase in flood elevations or velocities after allowable encroachments into the
floodway fringe would result;
b. Variances shall only be issued upon:
(1) A determination that the granting of a variance will not result in
increased flood hazards, present additional threats to public safety, be an
extraordinary public expense, create nuisances, cause fraud, victimize the
public, or conflict with existing state and local laws;
(2) A determination that the proposed use would be adequately
floodproofed as specified in Chapter 18.58,BMC;
(3) A determination that a reasonable alternate location outside the
floodplain is not available;
(4) A determination that the variance requested is the minimum necessary to
afford relief, considering the flood hazard; and
(5) Approval of the Montana Department of Natural Resources and
Conservation, upon request from the City, prior to formally approving
any permit application that is in variance to these regulations.
D. Authorization and Limitations on Approval.
1. The BOACemmis� may, after public notice and hearing, deny, approve or
conditionally approve all requests for variances meeting all the criteria of this section,
including:
a. Requests to modify dimensional or other numerical requirements of this title;
b. Requests for multiple variances;
C. Requests to modify flood hazard district requirements subject to the provisions
of Chapter 18.58, BMC, except that no variance shall be granted to allow
construction of buildings within the floodway of a 100-year frequency flood as
defined in Title 76, Chapter 5,MCA; and
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d. Requests for variances in conjunction with conditional use permits, except
planned unit developments. Approvals of all such variances shall be conditioned
upon BOACity4,-�sip approval of the conditional use permit.
2. The scope and extent of the variance(s) shall be limited to the minimum relief necessary
to provide reasonable use of the property.
3. In no case may the BOAS *y -&�� grant variances to allow uses not already
permitted pursuant to this title or alter administrative requirements of this title.
Permission to change uses allowed on a parcel may be sought through a zone map
amendment or an amendment to the text of the applicable zoning district.
4. The concurring vote of four members of the BOAGen issi shall be necessary to
effect any variance of this title.
5. Notifications of approval for variances related to flood hazard requirements of Chapter
18.58,BMC shall notify the applicant that:
a. The issuance of a variance to construct a building below the 100-year floodplain
elevation will result in increased premium rates; and
b. Such construction below the 100-year flood elevation increases risks to life and
property.
E. Effective Time for BOACemmiss-ien Decisions - Variances Void When. The decision of the
BOAC rn shall be final except as provided in §18.66.080, BMC. If a building
permit or land use permit is not obtained for the subject property within six months from the
date of the BOA'S decision, the variance shall be automatically canceled and
become null and void.
F. Variances are subject to �76-2-321 through �76-2-328,MCA.--
18.66.070 SUBDIVISION VARIANCES
A. Procedure. The subdivider shall provide during the preapplication process, and include with the
submission of the preliminary plat, a written statement describing the requested variance and the
facts of hardship upon which the request is based. The Planning Board shall include their
findings and conclusion regarding the requested variance in its recommendation to the City
Commission. The City Commission shall then consider each variance at the public hearing on
the preliminary plat.
B. Review Criteria. Per§76-3-506,MCA, a variance to this title must be based on specific variance
criteria, and may not have the effect of nullifying the intent and purpose of this title. The City
Commission shall not approve subdivision variances unless it makes findings based upon the
evidence presented in each specific case that:
1. The granting of the variance will not be detrimental to the public health, safety, or
general welfare, or be injurious to other adjoining properties;
2. Because of the particular physical surroundings, shape or topographical conditions of the
specific property involved, an undue hardship to the owner would result if strict
interpretation of this title is enforced;
3. The variance will not cause a substantial increase in public costs; and
4. The variance will not, in any manner, place the subdivision in nonconformance with any
other provisions of this title or with the City s growth policy.
C. Variances from Floodway Provisions Not Authorized. The City Commission may not, by
subdivision variance, pernnit subdivision for building purposes in areas located within the
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floodway of a flood of 100-year frequency as defined in Title 76, Chapter 5,MCA. Any variances
related to floodways shall meet the standards of 518.66.060.C.4.a,BMC.
D. Conditions. In granting subdivision variances, the City Commission may require such
conditions as will, in its judgment, secure the objectives of this title. Any approval under this
section shall be subject to the terms of the conditions designated in connection therein. Any
conditions required shall be related both in purpose and scope with the relief sought through the
variance.
E. Statement of Facts. When any variance from this title is granted, the motion of approval shall
contain a statement describing the variance and conditions upon which the issuance of the
variance is based.
F. Planned Unit Development. Where the standards and requirements of this title are proposed to
be modified through a planned unit development, the applicable process shall be a deviation
rather than a variance.
G. Limitations on Approvals. For subdivision variances, the variance approval shall be null and
void if the final plat is not filed within the time allowed for final approval by the City
Commission decision.
18.66.080 APPEALS FROM CITY COMMISSION ACTIONS
A. Zoning Variances. Any person or persons, jointly or severally, aggrieved by any decision of the
BOA or City Commission under this chapter, or any taxpayer, or any officer, department, board
or bureau of the municipality may present to a court of record a petition, duly verified, setting
forth that such decision is illegal in whole or in part and specifying the grounds of illegality. Such
petition shall be presented to the court within the time frame established by state law.
B. Zoning Decisions. An aggrieved person may appeal the approval, approval with conditions or
denial of a development application acted upon by the BOA or City Commission by presenting
to a court of record a petition, duly verified, setting forth that such decision is illegal in whole or
in part and specifying the grounds of illegality. Such petition shall be presented to the court
within the time frame established by state law.
C. Subdivision Appeals. A party identified in subsection C.1 below who is aggrieved by a decision
of the City Commission to approve,conditionally approve or disapprove a proposed preliminary
plat or final subdivision plat, including variances, may, within thirty days after the decision,
appeal to the Eighteenth Judicial District Court, Gallatin County, State of Montana. The
petition must specify the grounds upon which the appeal is made.
1. The following parties may appeal under the provisions of this section:
a. The subdivider;
b. A landowner with a property boundary contiguous to the proposed subdivision
or a private landowner within the County where the subdivision is proposed if
that landowner can show a likelihood of material injury to the landowner's
property or its value; and
C. The Gallatin County Commission.
2. If the aggrieved person is the subdivider,they may bring an action in district court to sue
the City to recover actual damages caused by final action,decision, or order of the City
Commission or a regulation adopted pursuant to this chapter that is arbitrary or
capricious.
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CHAPTER 18.76
NOTICING
18.76.010 PURPOSE
It is the intent of this chapter to provide for adequate notice of governmental actions to those affected
by such actions. Notice is required in order for citizens to participate in decision making which affects
their interests and provides opportunity to receive information pertinent to an application that would
not otherwise be available to the decision maker. In establishing standards for providing such notice, the
need for expeditious processing of applications is also recognized.
18.76.020 CONTENTS OF NOTICE
A. The following elements shall be included in notices issued pursuant to this title:
1. Address of the property, or its location by approximate distances from the nearest major
street intersections, or other description to identify the affected property;
2. Legal description of the property;
3. The name and address of the applicant;
4. The name and address of the owner of record;
5. The number, date, time and place of all relevant scheduled public hearings by the City
Commission,Board.of._ c.jjste: t,_Planning Board or Zoning Commission, meetings of
other review bodies established by this title at which final decisions shall be made, or the
date of any final public comment deadline;
6. A description of how and where additional information regarding the action may be
obtained; and
7. A brief description of the subject of the notice.
B. The following additional elements shall be included in all notices required for site plans, master
site plans, certificates of appropriateness, conditional use permits, planned unit developments,
deviations,variances and subdivisions:
1. A map of the area in question so as to indicate its general location and proximity to
surrounding properties; and
2. A reference to the appeals process for this title for notices regarding projects where the
Board of.A `ustmgpt or City Commission will not be making the final decision.
C. The following additional elements shall be included in all notices required for text amendments
to this title:
1. A summary explanation of the intent of the change, with reference to the exact text
being available for public review.
D. The applicant shall provide for the purposes of noticing a list of names and addresses of
property owners within 200 feet of the site, using the most current known property owners of
record as shown in the records of the County Clerk and Recorder's Office and stamped,
unsealed envelopes (with no return address) addressed with names of above property owners,
and/or labels with the names of the above property owners, as specified on the appropriate
application.
18.76.030 NOTICE REQUIREMENTS FOR APPLICATION PROCESSING
A. The following minimum standards for timing, location of noticing area and type of notice shall
be provided. Noticing provisions are cumulative with the maximum combination of noticing
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requirements being provided. When more than one newspaper notice is required, only one of
the required publication dates must fall within the minimum and maximum days required.
B. If for some reason a required property owner fails to receive mail notification of a scheduled
public hearing, or if one or more of the required posted signs in the area or on the site for which
the public hearing is being held is inadvertently moved through no fault of the City, this in no
way shall invalidate the legal notice requirements of the scheduled public hearing.
C. Notice may also be provided to property owners in any additional area that may be substantially
impacted by the proposed change or use as determined by the Planning Director.
Table 76-1
Minimum Maximum
Application Days' Days' Distance' Notice Type
Text Amendment 15 45 NA Newspaper 3 times
Newspaper once,post on-site,
ZMAZ 15 45 200 mail 1st class
ZMAZ-Resulting from ordinance changes 15 45 None Newspaper 3 times
Newspaper 3 times,post on-
ZMAZ- Annexation w/initial zoning 15 45 None site,mail 15i class
Variance- floodplain,zoning,and Newspaper once,post on-site,
subdivision 15 45 200 mail 1st class
Public Agency Exemption 15 45 None News pa er once
Newspaper once,post on-site,
Deviation 15 45 200 mail 1st class
Appeals 15 45 2003 Post on-site,mail 1st class
Sketch Plan/Reuse/Change in
Use/Further Development None None None None
Sketch Plano 15 45 None Post on-site
Informal/Concept Plan None None None None
Preliminary Site Plan or Master Site Plan 15 45 200 Post on-site,mail 1st class
Newspaper once,post on-site,
PreliminaryPUDs 15 45 200 mail 1st class
Newspaper once,post on-site,
Preliminary CUP 6 15 45 200 mail 1st class
Flood lain Permit 15 45 200 Newspaper mail 1st class
COAL None None None None
Final Site Plan None None None None
Final PUD Plan None None None None
Final CUP plan None None None None
Subdivision Exemption None None None None
1st Minor Subdivision without variance-
Preliminary Plat 15 45 200 Mail 1st class
1st Minor Subdivision with variance/2nd
Minor/Major Subdivision-Preliminary Newspaper$,post on-site,
Plat 15 45 200 mail 1st class9,certified mail'o
Final Plat None None None None
Post on-site,certified mail to
Notice of Violation" 15 45 None landowner
1 The distance from the extenor property bw 7dary of the site to all or part of another panel of land vhase owners nwt be wtif%l of a gozernrrm"
action This distance inducts the uidth of a right of zuty or other public ounership.
zZom Map Arrvncl Chapter 18.70,BMC
'Posting and nulling only applis to appeals taken firm actions to approze, approze with cmrnli um or deny a ckdoprrent proposal xad not to
appeals of adrr wtratiw interpretations.
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'Sketch plans for adding dwellings in the mghborhoal conserwation meday district &wdition of an'nbuting structures in the neighborhood
consenation ozerlay distr c4 or PWttcation of wetlands.
'Planned Unit DezdTpvm Chapter 18.36,BMC
6Conditional Use Pm at, Chapter 18.34,BMC
'CertifuateofApprnpnatews, Chapters 18.28 and 18.30,BMC
I When newpaper notice is squired the Mice shall be published in a newspaper of general cimrlation
'Mail by Pt lass to all lan"ners within 200 feet except thane subl'crt to cert�W n uil
rood rmd nmt be sent to recorded punhasm under contract for deed in addition to owners of phyiwdy contiguous property and the
subdiuden
"Notice;of Violation subject to§18.64.150.E,BMC
72 Da)s prior to the dose of the public oxwm period or public hearing unless otherwise spaod in this title
18.76.040 NOTICE OF CITY APPROVAL WITHIN NEIGHBORHOOD
CONSERVATION AND ENTRYWAY OVERLAY DISTRICTS
In order to inform adjacent property owners and residents that an application within an overlay district
has been approved by the City, any site approved for construction or alterations within an overlay
district shall be posted with a notice supplied by the Planning Department. The notice shall be posted in
a conspicuous place on the site before any construction begins and may be removed when the project is
substantially complete. The notice shall specify the name of the owner of record, the address of the
property, a description of the scope of work approved and the date of City approval.
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