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HomeMy WebLinkAboutPacket 03-19-2007_230-337_Woodhaven Village Planned Unit Development_Conditional Use Permit Modification #Z-07005 Report Compiled on March 14, 2007 Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Andrew Epple, Planning Director Chris Kukulski, City Manager SUBJECT: Woodhaven Village PUD/CUP Modification, #Z-07005 MEETING DATE: Monday, March 19, 2007 RECOMMENDATION: That the City Commission approve File No. Z-07005 Woodhaven Village PUD/CUP Modification, with the conditions and code provisions outlined in the Staff Report. BACKGROUND: The property owner, D&D Palmer, LLC, and applicant, Nick Palmer, represented by Jami Morris, has applied for a Conditional Use Permit (CUP) application that would allow a modification to the Baxter Square Subdivision Planned Unit Development (PUD) to increase the number of residential dwelling units. The original Baxter Square Subdivision PUD was approved by the City Commission in August of 2003 with a total of 118 residential dwelling units. This modification would permit an additional 12 units in the Baxter Square Subdivision PUD. The net density, with the proposed amendment, would still meet the 1 unit per 3,000 square foot minimum. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. The Development Review Committee (DRC) and the Design Review Board (DRB) recommend conditional approval of this application. Please refer to the attached reports, minutes, etc. for additional information. UNRESOLVED ISSUES: There are no unresolved issues at this time. FISCAL EFFECTS: Fiscal impacts are undetermined at this time. ALTERNATIVES: As suggested by the City Commission. CONTACT: Please feel free to email Martin Knight at mknight@bozeman.net if you have any questions prior to the public hearing. Attachments: DRB Minutes 2.28.07 (consent item) DRB Memo 2.28.07 (consent item) Applicant Submittal Materials Staff Report APPROVED BY: Andrew Epple, Planning Director Chris Kukulski, City Manager 231 CITY COMMISSION STAFF REPORT FILE NO. #Z-07005 WOODHAVEN VILLAGE PUD MODIFICATION CUP Woodhaven Village PUD Modification CUP/PUD, #Z-07005 1 ITEM: Conditional Use Permit Application #Z-07005 to modify an approved Planned Unit Development (PUD) to allow 12 additional residential dwelling units in the Baxter Square Subdivision PUD. PROPERTY OWNER: D&D Palmer LLC 90 West Fieldview Circle Bozeman MT 59715 APPLICANT: Nick Palmer PO Box 1701 Bozeman MT 59771 REPRESENTATIVE: Jami Morris, LLC 159 Mountain Lion Trail Bozeman MT 59718 DATE/TIME: City Commission 6 pm. on Monday, March 19, 2007 in the Community Meeting Room, Gallatin County Courthouse, 311 West Main Street, Bozeman, Montana. REPORT BY: Martin Knight, Planner I RECOMMENDATION: Conditional Approval ______________________________________________________________________________ PROJECT LOCATION The proposed PUD Modification would only apply to property located at 5349 Baxter Lane. This lot is legally described as Lot 23, Block 2, Baxter Square Subdivision PUD, City of Bozeman, Gallatin County, Montana. This property is zoned R-3 (Residential Medium Density District) and is designated as “Residential” on the Future Land Use Map of the Bozeman 2020 Community Plan. Please refer to the following map. 232 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 2 PROPOSAL The property owner, D&D Palmer, LLC, and applicant, Nick Palmer, represented by Jami Morris, has applied for a Conditional Use Permit (CUP) application that would allow a modification to the Baxter Square Subdivision Planned Unit Development (PUD) to increase the number of residential dwelling units. The original Baxter Square Subdivision PUD was approved by the City Commission in August of 2003 with a total of 118 residential dwelling units. This modification would permit an additional 12 units in the Baxter Square Subdivision PUD. The net density, with the proposed amendment, would still meet the 1 unit per 3,000 square foot minimum. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. The proposed modification includes the demolition of an existing multi-household structure that currently supports 3 residential dwelling units. The City of Bozeman Historic Preservation Officer finds no historic value in the structure to be removed. The site will be redeveloped to include 4 townhouse style structures (3 tri-plex and 1 four-plex). All elements of the site design will be required to be in compliance with the previously approved Baxter Square Subdivision PUD (#Z-03132). Parkland for the Baxter Square Subdivision was calculated based on 118 dwelling units. This requirement was fulfilled through a combination of parkland dedication and cash-in-lieu of parkland. This additional development will generate a requirement of 0.36 acres (12 additional units x 0.03 acres = 0.36 acres) of parkland. The applicant proposes to meet this requirement with cash-in-lieu. This item has been included as a condition of Final Site Plan approval. Minor changes to PUDs can be approved administratively; however, per UDO Section 18.36.040.C.4.b.(2).(b), an amendment to increase the number of residential dwelling units by 2% or greater must follow the same Planned Unit Development review and public hearing process required for approval of preliminary plans, which includes DRB review and City Commission approval. Please note that this project is also undergoing concurrent Site Plan and Certificate of Appropriateness (COA) review for the actual development of the site. Items related to materials, building design, pedestrian circulation, etc. will be addressed through in-house review by Planning Staff. The plans are included in the PUD Modification application for your reference only. 233 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 3 ADJACENT LAND USES & ZONING The subject property is zoned R-3 (Residential Medium Density District). The intent of the R-3 residential medium density district is to provide for the development of one- to five- household residential structures near service facilities within the City. It should provide for a variety of housing types to serve the varied needs of households of different size, age, and character, while reducing the adverse effect of nonresidential uses. The following land uses and zoning are adjacent to the subject property: North: Townhomes; zoned R-3 (Residential Medium Density District) South: Vacant property in the West Winds Subdivision; zoned R-3 (Residential Medium Density District) East: Townhomes; zoned R-3 (Residential Medium Density District) West: Vacant County land GROWTH POLICY DESIGNATION The subject property is designated as “Residential” in the 2020 Plan. The Residential classification designates areas where the primary activity is urban density living quarters, with other uses that complement residences such as parks, low intensity home based occupations, fire stations, churches, and schools. It is expected that areas of higher density housing would be likely located in proximity to commercial centers to facilitate the broadest range of feasible transportation options for the greatest number of individuals. In limited instances the strong presence of constraints and nature features such as floodplains may cause an area to be designated for development at a lower density than normally expected with this classification. REVIEW CRITERIA & FINDINGS In approving a modification to a Planned Unit Development application, the City Commission shall consider the criteria outlined in the Unified Development Ordinance including Section 18.34.090 “Site Plan and Master Site Plan Review Criteria;” Section 18.34.100 “City Commission Consideration and Findings for Conditional Use Permits;” and Chapter 18.36 “Planned Unit Development.” Planning Staff has evaluated the application against the relevant review criteria that are applicable to the proposed PUD modification and offers the following summary review comments below. Section 18.34.090 “Site Plan and Master Site Plan Review Criteria” In considering applications for site plan approval under this title, the City Commission shall consider the following: 1. Conformance to and consistency with the City’s adopted growth policy Again, the property is designated as “Residential” according to the adopted growth policy. This classification provides for areas where the primary activity is urban density living quarters, with other uses that complement residences such as parks, low intensity home based occupations, fire stations, churches, and schools. It is expected that areas of higher density housing would be likely located in proximity to commercial centers to facilitate the broadest range of feasible transportation options for the greatest number of individuals. In limited instances the strong presence of constraints and nature features such as floodplains may cause an area to be designated for development at a lower density than normally expected with this classification. Specific goals related to the 2020 Plan include the following: 234 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 4 Chapter 6.6.2, Objective 3: Support and encourage compatible infill development to avoid sprawl and unnecessary public expense. This proposal would increase of overall net density of the Baxter Square Subdivision to 12 units/acre, or approximately 3,600 square feet per dwelling unit. Chapter 6.6.1, Objective 7: Provide for an average 20 percent dwelling unit per acre density increase within the existing developed residential areas of the City to reduce the area required for an increased population during the 20-year duration of the plan. Again, the proposed development would increase the overall density of the Baxter Square Subdivision PUD. 2. Conformance to this title, including the cessation of any current violations The property owner must comply with all provisions of the Bozeman Municipal Code, which are applicable to this project prior to receiving Final Site Plan approval. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. The following code provisions must be addressed with the final submittal: a) Section 18.36.060 requires the applicant to submit seven (7) copies a Final Site Plan within 1 year of preliminary approval containing all of the conditions, corrections and modifications to be reviewed and approved by the Planning Office. b) Section 18.34.100.C states that the right to a conditional use permit shall be contingent upon the fulfillment of all general and special conditions imposed by the Conditional Use Permit procedure. All special conditions and code provisions shall constitute restrictions running with the land, shall be binding upon the owner of the land, his successors or assigns, shall be consented to in writing by the applicant prior to commencement of the use and shall be recorded as such with the Gallatin County Clerk and Recorder’s Office by the property owner prior to the final site plan approval or commencement of the use. All of the conditions and code provisions specifically stated under any conditional use listed in this title shall apply and be adhered to by the owner of the land, successor or assigns. c) Section 18.34.140 states that a Building Permit must be obtained prior to the work, and must be obtained within one year of Final Site Plan approval. Building Permits will not be issued until the Final Site Plan is approved. d) Section 18.38.050.F requires all mechanical equipment to be screened. Rooftop equipment should be incorporated into the roof form and ground mounted equipment shall be screened with walls, fencing or plant materials. e) Section 18.42.150 requires a lighting plan for all on-site lighting, including wall-mounted lights on the building, must be included in the submittal for final approval. f) Section 18.42.170 requires the trash receptacles to be appropriately sized and located for the specific as approved by the City Sanitation Department. Accommodations for 235 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 5 recyclables must also be considered. All receptacles shall be located inside of an approved trash enclosure. A copy of the site plan, indicating the location of the trash enclosures, dimensions of the receptacles and enclosures and details of the materials used, shall be sent to and approved by the City Sanitation Division (phone: 586-3258) prior to final site plan approval. g) Section 18.48.050.C.2.a.(2) requires all parking lots located between a principal structure and a public street to be screened from the public street. h) Chapter 18.52 requires the review and approval of a Sign Permit Application prior to the construction and installation of any on-site signage. i) The final landscape plan shall be signed and certified by a landscape professional as outlined in Section 18.78.100. Engineering: a. A City standard public access easement shall be provided about the drive aisle of the development. An easement document and exhibit acceptable in form and content shall be executed by the landowner(s) prior to final site plan. b. Curb shall be painted red and “no parking fire lane” signs installed along all designated fire lanes in the development as determined by the Bozeman Fire Department. c. A Stormwater Drainage/Treatment Grading Plan and Maintenance Plan for a system designed to remove solids, silt, oils, grease, and other pollutants must be provided to and approved by the City Engineer. The plan must demonstrate adequate site drainage (including sufficient spot elevations), stormwater detention/retention basin details (including basin sizing and discharge calculations and discharge structure details), stormwater discharge destination, and a stormwater maintenance plan. d. The FSP shall be adequately dimensioned and labeled with a legend of linetypes and symbols used provided. e. The location of existing water and sewer mains shall be properly depicted, as well as nearby hydrants. f. Sewer and water services shall be shown on the FSP and approved by the Water/Sewer Superintendent. City of Bozeman applications for services shall be completed by the applicant. Distinction between proposed and existing services shall be made. g. Easements and R/W located on and adjacent to the site shall be depicted and labeled appropriately. Distinction between proposed and existing easements shall be made. Proposed utility easements shall be provided prior to FSP approval. h. Proposed and existing water/sewer services, mains and hydrants shall be depicted upon the Landscape Plan and maintain a minimum horizontal separation of 10’ to landscape trees and lot lighting improvements. A note shall be added to the landscape plan to this affect. 236 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 6 i. Typical curb details (i.e. raised and/or drop curbs) and typical asphalt paving section detail shall be provided to and approved by the City Engineer. Concrete curbing shall be provided around the entire new parking lot perimeter with locations of spill curb and catch curb distinguished. j. As per section 18.44.090 UDO access approaches must be constructed in accordance with City Standards and shall be labeled and detailed as such on the FSP. k. City standard sidewalk shall be installed and properly depicted at the standard location (i.e. 1’ foot off property line or per approved road section) along the street frontages. Any deviation to the standard alignment or location must be approved by the City Engineer. A City Sidewalk and Curb Cut Permit shall be obtained prior to construction. l. Street vision triangles shall be depicted in accordance with section 18.44.100 UDO and no plantings or other obstructions shall be located in the vision triangle in excess of 30” in height above the street centerline grade. On-street parking stalls are not permitted where the extended vision triangle intersects the curb. m. The applicant shall submit a construction route map dictating how materials and heavy equipment will travel to and from the site in accordance with section 18.74.020.A.1 of the Unified Development Ordinance. This shall be submitted as part of the final site plan for site developments, or with infrastructure plans for subdivisions. It shall be the responsibility of the applicant to ensure that the construction traffic follows the approved routes. n. All construction activities shall comply with section 18.74.020.A.2 of the Unified Development Ordinance. This shall include routine cleaning/sweeping of material that is dragged to adjacent streets. The City may require a guarantee as allowed for under this section at any time during the construction to ensure any damages or cleaning that are required are complete. The developer shall be responsible to reimburse the City for all costs associated with the work if it becomes necessary for the City to correct any problems that are identified. o. If construction activities related to the project result in the disturbance of more than 1 acre of natural ground, an erosion/sediment control plan may be required. The Montana Department of Environmental Quality, Water Quality Bureau, shall be contacted by the applicant to determine if a Storm Water Discharge Permit is necessary. If required by the WQB, an erosion/sediment control plan shall be prepared for disturbed areas of 1 acre or less if the point of discharge is less than 100’ from State Waters. p. The Gallatin County Conservation District, Montana Department of Environmental Quality, and U.S. Army Corps of Engineers shall be contacted regarding the proposed project and any required permits (i.e., 310, 404, Turbidity exemption, etc.) shall be obtained and provided prior to FSP approval. 237 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 7 3. Conformance with all other applicable laws, ordinances, and regulations The proposal conforms to all other applicable laws, ordinances, and regulations. All conditions for a Conditional Use Permit must be met prior to final site plan approval including the recording of the conditions for the Conditional Use Permit. The plans for the actual carwash will be further evaluated against the requirements of the International Building Code at the time application is made for a Building Permit. 4. Relationship of site plan elements to conditions both on and off the property The site plan review process as well as the PUD architectural guidelines will ensure compatibility with the surrounding properties and neighborhood. 5. The impact of the proposal on the existing and anticipated traffic and parking conditions Each of the 13 townhouse units will have 3 bedrooms for a parking requirement of 3 spaces per unit and a total of 39 spaces. All of the units will have 2-car garages which accounts for 26 spaces. The tri-plex buildings have adequate space behind the garage to allow for stacking which will provide another 18 parking spaces. The four-plex building will utilize 3 on-street parking spaces which will make up 3 spaces per unit and a total of 48 parking spaces for the complex. Thus, the preliminary site plan depicts parking that fulfills the Zoning Ordinance requirement, which includes providing one space per bedroom. 6. Pedestrian and vehicular ingress and egress Two vehicular accesses off Buckrake Avenue are proposed. The existing drive access off Buckrake will be utilized; currently this access, located approximately 70’ from the Baxter Lane intersection, does not meet the City Standards for drive access separation (150’ from arterial streets) or the width requirements for two-way traffic. The applicant has requested a deviation for the City Engineering Department that would permit the utilization of this existing drive access. Upon review, the City Engineer has found this to be acceptable. Pedestrian access will be provided from sidewalks along Hoover Street, Buckrake Avenue, and Baxter Lane. 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 The Landscape Plan will be evaluated for the required 23 points with the Final Site Plan. The horseshoe drive aisle design does permit the preservation of the majority of mature vegetation on this property. Furthermore, this design will screen vehicular areas from the adjacent public park and associated trails. Parkland for the Baxter Square Subdivision was calculated based on 118 dwelling units. This requirement was fulfilled through a combination of parkland dedication and cash-in-lieu of parkland. This additional development will generate a requirement of 0.36 acres (12 additional units x 0.03 acres = 0.36 acres) of parkland. The applicant proposes to meet this requirement with cash-in-lieu. This item has been included as a condition of Final Site Plan approval. 238 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 8 8. Open space The re-development of this property will require a minimum of 1,950 square feet of open space be provided. Approximately 4,800 square feet of open space is proposed; being obtained primarily through the preservation of existing mature vegetation and the concentration of buildings toward the center of the development. 9. Building location and height Again, building location and height is being evaluated with site plan review. The proposed PUD Modification is related to the increase in the number of dwelling units and does not directly affect building locations or height. The maximum height allowed in the R-3 zoning district is 42 feet and the setbacks are as follows: -Front: 25 feet adjacent to arterials, 20 feet adjacent to collectors, and 15 feet adjacent to locals. -Rear: 20 feet -Side: 5 feet The proposed maximum building height is 29 feet. The proposed building setbacks are 25 feet along Baxter Lane, 15 feet along Buckrake Avenue and Hoover Street, and 20 feet along the rear (west) property boundary. Thus, the required setbacks are being provided. 10. Setbacks Again, the proposed plan meets required setbacks. The Final Site Plan will also be reviewed to ensure compliance with setbacks. 11. Lighting A lighting detail was not submitted with the Site Plan application packet. A lighting plan, depicting all on-site lighting, has been established as a code provision for Final Site Plan approval. 12. Provisions for utilities, including efficient public services and facilities Water and sewer service will be obtained from both Buckrake Avenue and Hoover Street. Accurate depiction of existing and proposed water and sewer mains has been included as a code provision for Final Site Plan approval. 13. Site surface drainage A Storm Water Drainage/Treatment Grading Plan and Maintenance Plan has been included as an Engineering provision for Final Site Plan approval. 14. Loading and unloading areas All loading and unloading areas meet the UDO requirements set forth. 239 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 9 15. Grading Minimal grading will be required on this site. 16. Signage No signage has been proposed. A code provision requiring that a Sign Permit Application be submitted, reviewed, and approved by the Planning Office prior to the construction and installation of any on-site signage has been included. All signage will require a sign permit. 17. Screening No screening has been proposed. All mechanical equipment shall be screened in accordance with UDO section 18.38.050. This shall include, but not be limited too, air conditioners and electric panels. All mechanical equipment and screening shall be depicted on the site plan and landscaping plan for Final Site Plan submittal. This has been included as a code provision for Final Site Plan approval. 18. Overlay district provisions The subject property is located within the approved Baxter Square Subdivision PUD and has been evaluated against relevant portions of the guidelines for the PUD. 19. Other related matters, including relevant comment from affected parties No public comment has been received. 20. If the development includes multiple lots that are interdependent for circulation or other means of addressing requirement 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; 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. The shared access is required to have a shared access easement. Again, this is a site plan issue and is not required as part of the PUD Modification. Section 18.34.100 “City Commission Consideration and Findings for Conditional Use Permits” In addition to the review criteria outlined above, the City Commission shall, in approving a conditional use permit, find 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. 240 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 10 Zoning requirements, such as setbacks, parking, landscaping, lot coverage, etc. should ensure that the proposed development does not negatively impact the surrounding properties. The proposed layout will not prohibit development of adjacent properties. 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. Staff does not find that the proposal will have adverse effects on abutting properties. The proposed configuration, density, and design will be consistent with that found in the Baxter Square Subdivision. 3. That any additional conditions stated in the approval are deemed necessary to protect the public health, safety and general welfare. Such conditions may include, but are not limited to: regulation of use; special yards, spaces, and buffers; special fences, solid fences and walls; Surfacing of parking areas; Requiring street, service road or alley dedications and improvements or appropriate Bonds; Regulation of points of vehicular ingress and egress; Regulation of signs; Requiring maintenance of the grounds; Regulation of noise, vibrations and odors; Regulation of hours for certain activities; Time period within which the proposed use shall be developed; Duration of use; Requiring the dedication of access rights; Other such conditions as will make possible the development of the City in an orderly and efficient manner Staff does not find any additional conditions necessary. Section 18.36.090 “Planned Unit Development Design Objectives and Criteria” In addition to the review criteria outlined for site plan and conditional use permit review, the City Commission shall, in approving a planned unit development, find favorably as follows: a. All Development. All land uses within a proposed planned unit development shall be reviewed against, and comply with, the applicable objectives and criteria of the mandatory “All Development” group. 1. Does the development comply with all City design standards, requirements and specifications for the following services: water supply, trails/walks/bike ways, sanitary supply, irrigation companies, fire protection, electricity, flood hazard areas, natural gas, telephone, storm drainage, cable television, and streets? City design standards for services have been addressed through the Baxter Square Subdivision. Any site specific standards are being addressed through site plan review. 2. Does the project preserve or replace existing natural vegetation? Numerous stands of mature vegetation exist throughout the property. The proposed horseshoe drive aisle and building configuration will permit the preservation of a majority of this mature landscaping. Additional landscaping features, to fulfill the UDO landscaping requirements, will be integrated with this existing vegetation. 241 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 11 3. Are the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) designed and arranged to produce an efficient, functionally organized and cohesive planned unit development? The proposed site plan for this lot works within the context of the overall PUD. Primary entrances will be oriented towards Buckrake Avenue, creating an aesthetically pleasing streetscape. Vehicular traffic will be located towards the center of the development, thus, screening vehicular uses from the adjacent public park. 4. Does the design and arrangement of elements of the site plan (e.g. building construction, orientation, and placement; transportation networks; selection and placement of landscape materials; and/or use of renewable energy sources; etc.) contribute to the overall reduction of energy use by the project? Again, the configuration of the development will permit the preservation of a majority of the mature vegetation found on the property. The installation of drought tolerant landscaping and the use of passive solar energy will further aid in the overall reduction of energy used by the project. 5. Are the elements of the site plan (e.g. buildings, circulation, open space and landscaping, etc.) designed and arranged to maximize the privacy by the residents of the project? Again, the horseshoe configuration of the development will both aid in screening vehicular uses from adjacent properties and permit the preservation of mature vegetation, which will further aid in maximizing privacy. The proposed pedestrian circulation patterns are acceptable for residential uses. 6. Park Land. Does the design and arrangement of buildings and open space areas contribute to the overall aesthetic quality of the site configuration, and has the area of park land or open space been provided for each proposed dwelling as required by Section 18.50.020 “Park Requirements?” Parkland for the Baxter Square Subdivision was calculated based on 118 dwelling units. This requirement was fulfilled through a combination of parkland dedication and cash- in-lieu of parkland. This additional development will generate a requirement of 0.36 acres (12 additional units x 0.03 acres = 0.36 acres) of parkland. The applicant proposes to meet this requirement with cash-in-lieu. This item has been included as a condition of Final Site Plan approval. 7. Performance. All PUDs shall earn at least twenty performance points. Nonresidential developments within the North 19th Avenue/Oak Street corridor shall earn thirty points. Points may be earned in any combination of the following. The applicant shall select the combination of methods but the City may require documentation of performance, modifications to the configuration of open space, or other assurances that the options selected shall perform adequately. Not applicable; the master plan for the overall PUD has already been approved. The proposed PUD modification does not significantly affect the PUD master plan. 242 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 12 8. Is the development being properly integrated into development and circulation patterns of adjacent and nearby neighborhoods so that this development will not become an isolated “pad” to adjoining development? The proposed modification will be consistent with development found in the Baxter Square Subdivision and adjacent uses (i.e. West Winds Subdivision). b. Residential. Planned unit developments in residential areas (R-S, R-1, R-2, R-3, R-4, RMH and R-O zoning districts) may include a variety of housing types designed to enhance the natural environmental, conserve energy, recognize, and to the maximum extent possible, preserve and promote the unique character of neighborhoods, with provisions for a mix of limited commercial development. Residential PUD Criteria was evaluated as part of the original PUD. CONCLUSION/RECOMMENDATION The Bozeman Development Review Committee (DRC) and the Design Review Board (DRB) have reviewed the proposed PUD modification and support the proposed additional dwelling units with the following conditions of approval: 1. A fair market appraisal shall be provided for the calculation of cash-in-lieu of parkland. This appraisal shall be for the fair market value of un-subdivided, un-improved, annexed, and zoned property. This appraisal shall be no sooner than 90 days prior to the submittal for Final Site Plan approval. 2. Porches, decks, stoops, and similar features may not encroach more than 5’ into the required front yard setback. The Final Site Plan submittal materials must reflect this. 3. Items to be removed (i.e. house and landscaping) shall not be included on the Final Site Plan for Final Site Plan submittal. 4. Trees to be preserved shall be clearly depicted on the Final Site Plan submittal materials. Shall any of the trees be damaged or destroyed during construction; a similar species of tree with a minimum caliper of 2” shall be planted in its place. The landscaping plan for Final Site Plan submittal shall include this language. 5. The southernmost access approach does not satisfy access separation standards of Section 18.44.090.D.3 of the Unified Development Ordinance. Access deviation materials outlined in Section 18.44.090.H.3 must be provided in their entirety and approved prior to final site plan approval. 6. The existing on-site well and septic system shall be abandoned per Gallatin City-County Health Department and MDEQ regulations. The existing well may continue to be utilized for site irrigation but shall be disconnected for potable use. The Planning Staff, DRC, and DRB have reviewed the proposed modification to the PUD. Planning Staff has identified various code provisions which must be met by this application. Some or all of these items are listed in the findings (see pages 4, 5, and 6) of this staff report. The applicant must comply 243 Woodhaven Village PUD Modification CUP/PUD, #Z-07005 13 with all provisions of the Bozeman Unified Development Ordinance, which are applicable to this project prior to receiving Final Site Plan approval. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or state law. THE BOZEMAN CITY COMMISSION SHALL MAKE THE FINAL DECISION ON THIS APPLICATION FOR A CONDITIONAL USE PERMIT. ANY AGGRIEVED PERSON AS SET FORTH IN CHAPTER 18.66 OF THE BOZEMAN UNIFIED DEVELOPMENT ORDINANCE MAY APPEAL THE DECISION OF THE CITY COMMISSION. Attachments: DRB Minutes 2.28.07 (consent item) DRB Memo 2.28.07 (consent item) Applicant Submittal Materials Report sent to: D&D Palmer, LLC, 90 West Fieldview Circle, Bozeman, MT 59715 Nick Palmer, PO Box 1701, Bozeman, MT 59771 Jami Morris, LLC, 159 Mountain Lion Trail, Bozeman, MT 59718 244 planning · zoning · subdivision review · annexation · historic preservation · housing · grant administration · neighborhood coordination CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net MEMORANDUM ____________________________________________________________________________________ TO: Design Review Board (DRB) FROM: Martin Knight, Planner I DATE: Consent Agenda for 02/28/07 DRB Meeting RE: Woodhaven Village CUP to Modify Baxter Square Subdivision PUD, #Z-07005 ____________________________________________________________________________________ Property Location: The proposed PUD Modification would only apply to property located at 5349 Baxter Lane and legally described as Lot 23, Block 2, Baxter Square Subdivision PUD, City of Bozeman, Gallatin County, Montana. This property is zoned R-3 (Residential Medium Density District) and is designated as “Residential” on the Future Land Use Map of the Bozeman 2020 Community Plan. Please refer to the following map: Proposal: A Conditional Use Permit (CUP) application has been submitted that would allow a modification to an approved Planned Unit Development (PUD) to increase the number of residential dwelling units. The original Baxter Square Subdivision PUD was approved by the City Commission in August of 2003 with a total of 118 residential dwelling units. This modification would permit an additional 12 units in the Baxter Square Subdivision PUD. The net density, with the proposed amendment, would still meet the 1 unit per 3,000 square feet minimum. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. 245 Page 2 The proposed modification includes the demolition of an existing multi-household structure that currently supports 3 residential dwelling units. The City of Bozeman Historic Preservation Officer finds no historic value in the structure to be removed. The site will be redeveloped to include 4 townhouse style structures (3 tri-plex and 1 four-plex). All elements of the site design will be required to be in compliance with the previously approved Baxter Square Subdivision PUD (#Z-03132). Minor changes to PUDs can be approved administratively; however, per UDO Section 18.36.040.C.4.b.(2).(b), an amendment to increase the number of residential dwelling units by 2% or greater must follow the same Planned Unit Development review and public hearing process required for approval of preliminary plans, which includes DRB review. Staff Recommendation Planning staff supports this proposal. This item has been placed on the DRB’s consent agenda because it applies to a previously approved major subdivision; nothing about the design of the subdivision will change as a result of this application. If the Board wishes to discuss this item, then a motion must be made to remove the item from consent for further discussion. The recommendations of both the DRB and the Development Review Committee (DRC) will be forwarded to the City Commission for the public hearing which is scheduled for March 19, 2007. Staff recommends that you approve this application on your consent agenda, and forward a recommendation of conditional approval to the City Commission. Memo Mailed To: Jami Morris, LLC, 159 Mountain Lion Trail, Bozeman, MT 59718 D & D Palmer, LLC, 90 W. Fieldview Circle, Bozeman, MT 59715 Nick Palmer, PO Box 1701, Bozeman, MT 59771 246 Design Review Board Minutes – February 28, 2007 1 DESIGN REVIEW BOARD WEDNESDAY, FEBRUARY 28, 2007 MINUTES ITEM 1. CALL TO ORDER AND ATTENDANCE Chairperson Livingston called the meeting to order at 5:35 p.m. and directed the secretary to record the attendance. Members Present Staff Present Mel Howe Allyson Bristor, Associate Planner Michael Pentecost Martin Knight, Assistant Planner Christopher Livingston Tara Hastie, Recording Secretary Bill Rea Joe Batcheller Walter Banziger Elisa Zavora Visitors Present Thomas Mosser Jesse Sobrepena Gram Goff Nick Palmer Ken Glynn Josh Gobel ITEM 2. MINUTES OF FEBRUARY 14, 2007. Mr. Rea stated that on page 2, paragraph 3 it should read that he would like to see the historic vertical reader sign and not the theater marquee. MOTION: Vice Chairperson Pentecost moved, Mr. Rea seconded, to approve the minutes of February 14, 2007 with corrections. The motion carried 4-0. ITEM 3. CONSENT ITEMS 1. Woodhaven Village Mods to PUD #Z-07005 (Knight) 5349 Baxter Lane * A Request to modify an approved Planned Unit Development (Baxter Square) to allow an increase in the number of residential dwelling units. MOTION: Vice Chairperson Pentecost moved, Mr. Howe seconded, to forward a recommendation of approval to the City Commission for Woodhaven Village Mods to PUD #Z- 07005 with Staff conditions. The motion carried 4-0. 2. The Knolls @ Hillcrest PUD Prel. Plan #P-07007 (Sanford) South of 1201 Highland Boulevard * A Planned Unit Development Preliminary Plan Application to allow concurrent construction and infrastructure-related relaxations in a previously approved major subdivision. 247 Design Review Board Minutes – February 28, 2007 2 MOTION: Mr. Howe moved, Vice Chairperson Pentecost seconded, to forward a recommendation of approval to the City Commission for The Knolls @ Hillcrest PUD Prel. Plan #P-07007 with Staff conditions. The motion carried 4-0. 3. City Hotel & Residence Club SP/COA/DEV #Z-06287 (Bristor) 120 West Main Street * A request to reconsider the additional submittal materials requested by the DRB on the 1/24/07 meeting. Mr. Banziger joined the DRB. MOTION: Vice Chairperson Pentecost moved, Mr. Howe seconded, to reconsider the additional submittal materials requested by the DRB for City Hotel & Residence Club SP/COA/DEV #Z- 06287on the 1/24/07 meeting City Hotel & Residence Club SP/COA/DEV #Z-06287. The motion carried 5-0. Ms. Zavora, and Mr. Batcheller joined the DRB. ITEM 4. INFORMAL REVIEW 1. Bozeman Brewery Rehabilitation Informal #I-07004 (Bristor) 801 & 803 North Wallace Avenue * An Application for informal and advice on the historic rehabilitation and redevelopment of the Lehrkind Brewery site; proposal is mixed-use development (residential and industrial / commercial uses). Gram Goff and Josh Gobel joined the DRB. Associate Planner Allyson Bristor presented the Staff memo noting that Staff was interested in feedback from the DRB regarding the mixed-use aspect and density of the proposal. Mr. Goff stated they were proposing rehabilitation of and additions to the existing portions of the Brewery structure. He stated the core of the building would be rehabilitated and that parking on the site had been a thorn in their side. He stated there was a matrix between the residential and the commercial parking requirements. He stated they were proposing more parking than required to accommodate the proposed uses. Planner Bristor added that Staff was deciding whether or not the proposal could be treated like one structure and asked if Mr. Goff had spoken with the Building Department. Mr. Goff responded that he had and they had told him the structure would be defined as one structure. Mr. Rea asked if the Haynes building would be torn down as the structuring and mass of the building was nearly the same as the proposed structure. Mr. Goff responded that the old Haynes building was structurally unsound and not worth saving. Mr. Rea asked if the applicant was cutting underground to get the parking in. Mr. Goff responded they would be cutting to accommodate parking. Vice Chairperson Pentecost asked the applicant to walk through the history of the Haynes building. Mr. Goff responded that Lehrkind had originally created the building and had run it as a brewery until prohibition times when he turned to bottling Coca Cola. He added that after the 248 Design Review Board Minutes – February 28, 2007 3 brewery there was a logging company in that location and the pilasters had been chiseled off at that time and ribbon windows were cut through the false windows. Planner Bristor responded that State Historic Preservation Office had documentation that lent to the building not being a contributing element to the neighborhood. Mr. Goff stated the north end of the property used to house Bozeman Plumbing and Heating; including a docking bay. Vice Chairperson Pentecost asked if the DRB was looking at battens with no siding. Mr. Goff responded he was correct. Vice Chairperson Pentecost asked what the interior of the structures looked like. Mr. Goff responded the brewery was very convoluted and one could easily get lost in it. Mr. Gobel added that the floor was thick and the heights were differing. Vice Chairperson Pentecost asked for clarification of what was being rehabilitated. Mr. Goff responded he would be rehabilitating the main core of the Brewery building as it was the contributing portion of the structure. He added that the back of the building would be a problem as there had been many add-ons in that location and the Wallace Avenue façade was deteriorating. Vice Chairperson Pentecost asked if the east façade was load bearing. Mr. Goff responded that it was. Ms. Zavora asked what the neighborhood thought of the proposal. Mr. Gobel responded that the North East Neighborhood Association and the Northeast Urban Renewal Board had been contacted and the applicant was waiting to hear back regarding a meeting date, but the owners of the Lehrkind Mansion had been supportive. Mr. Goff added that, overall, they had heard supportive comments regarding the additional amount of traffic that would be generated on Wallace Avenue. Mr. Howe asked when the applicant thought they would start occupying the structure. Mr. Goff responded complete build-out would be two to three years. Mr. Batcheller asked if any tenants had been lined up for the proposed commercial spaces. Mr. Goff responded that they had heard interest in the spaces, but it was hard to line out a tenant when they hadn’t begun the project yet; he mentioned professional office interests including architects, engineers, etc. Mr. Batcheller stated he was curious how much draw there would be for patrons outside of the neighborhood and asked if a traffic study had been required for the submittal. Planner Bristor responded a traffic study would parallel the formal application submittal and the Story Mill project had done an extensive traffic study which included parts of this location. Mr. Banziger asked what type of materials would be used for the historic and new structures. Mr. Goff responded the Department of Interior Standards requirements were very specific with regard to materials and the facades would be brick. He added that brick would be included in some locations within the interior. Mr. Gobel added that they would be using real materials. Planner Bristor added the materials would be traditional (wood, stone, metal, etc.). Mr. Livingston asked if the units depicted on the back of the site would be located on the property line. Mr. Goff responded they were located on the lot line and explained that the applicant had conceded the lot line to the adjoining property (Lattice Materials). Mr. Livingston asked if the applicant foresaw any problems with there being no windows in the residential units. Mr. Goff responded there would be a skylight, but the noise from Lattice Materials would cause problems if there were windows in that location and windows located on the property line would be a problem with the Building Code. Mr. Livingston asked if the proposal would be done all at once. Mr. Goff responded that the Tamarack building could be considered the second phase. Mr. Livingston asked if the applicant considered his proposal a “façade-ectomy”. Mr. Goff 249 Design Review Board Minutes – February 28, 2007 4 responded he did not think it would be a “façade-ectomy” and he was trying to stay within the scale and mass of the building and remain in keeping with the existing structures. Mr. Livingston stated the Story Mill proposal had presented a traffic study that indicated that Wallace Avenue would not have a substantial traffic increase. Mr. Goff responded that he did not think there was much vehicular activity on Wallace Avenue and his development would not increase the existing activity much. Mr. Livingston asked if the permitted number of units increased the required amount of lot area. Planner Bristor explained that 3,000 square feet was required per attached unit and a deviation request would be required to allow the applicant 1,750 square feet per attached unit. She added that the language in R-4 zoning for apartment complexes (five or more units) was not included in the HMU Zoning District and the interpretation of Staff required the applicant to ask for a deviation for lot area. Mr. Livingston asked if the applicant thought they had proposed too many features for the site. Mr. Goff responded he had exercised putting more units in the proposal, but the courtyard had been most difficult for them. He added that he had seen developments around the country and seen existing courtyard units that worked well; including the solar studies. Mr. Howe stated he liked the looks of the proposal as depicted and he had been waiting for someone to rehabilitate the site. Mr. Batcheller stated he liked the proposal as depicted and added that he thought if he lived there he might like to have a larger courtyard and suggested relocating some of the units on the site. Mr. Banziger stated he was intrigued by the proposal, he was glad to hear which proposed materials were being used, he liked the use of modernism, he liked the scale of the proposal, and he agreed with Mr. Livingston that one portion of the site was a little too tightly developed. Mr. Rea stated he liked the proposal, though it was exhausting thinking of taking it on himself. He stated he was concerned that the Brewery penthouse level might distract from the original façade and encouraged the applicant to maintain the “mechanical loft” look that was appropriate for the industrial aesthetic. He added that the roof form of the Aspen units seemed odd to him. He stated it was nice to see a brewery proposal instead of a bank proposal as Bozeman could use more beer and fewer banks. He stated there would be a real opportunity on this site for natural ventilation utilizing the proposed tower on the corner. Vice Chairperson Pentecost stated he agreed with previous DRB comments and commended the applicant for their thorough and thoughtful processes with their submittal. He stated he had no qualms regarding the density of the proposal but was slightly concerned with the “façade- ectomy” of the Brewery building. He stated he was supportive of the proposal as depicted. Ms. Zavora stated she liked the density of the proposal and she liked the courtyard as it was a great way to cover the parking area. Mr. Livingston stated he thought there was a market for this type of development and the demand would need to be balanced out as it would be applicable to that portion of town. He stated he liked the historic tower feature and suggested nothing could substitute for 100 year old mortar or brick; he added that even if the wall was two feet thick, the structure would still be a significant part of the town. He stated that he hoped the applicant would attempt to do something with solar energy or other methods and suggested LEED modifications. He stated he thought the applicant was correct to request the density as it was appropriate for the design. 250 Design Review Board Minutes – February 28, 2007 5 Mr. Rea moved, Mr. Howe seconded, to take a recess. The motion carried 7-0. ITEM 5. PROJECT REVIEW 1. City Hotel & Residence Club SP/COA/DEV #Z-06287 (Bristor) 120 West Main Street (Continued from 2/14/07.) * A Site Plan Application with a Certificate of Appropriateness and Deviations to allow the demolition of the existing Imperial Inn motel and the adjoining commercial building and the construction of a new hotel and condominium units with related site improvements. Thomas Mosser joined the DRB. Associate Planner Allyson Bristor presented the Staff memo noting that Staff had discussed the proposal with the applicant following the January 24, 2007 meeting of the DRB and had decided that the best option would be to have the application reviewed by the DRB again for comments and to review the newly submitted materials. She stated Staff recommendations are much the same as the previous reviews and Staff had not decided whether to support the requested height deviation. She stated Staff was supportive of the encroachment into the street vision triangle but was abstaining from deciding on the height deviation request until more comments were provided by the DRB. Mr. Mosser stated the packet submittals contained selected shots from the slideshow presentation he was showing at tonight’s meeting. He also had a scaled model on display for the DRB’s review. He stated the slideshow would depict the solar study done for the proposal better than the pictures contained in the DRB’s packets. He used Sketch-Up on a computer and projector to illustrate the massing of the proposal and the streetscape. He stated that the Catholic Church’s height would exceed the height of his proposal. Ms. Zavora asked if all the sun studies had been done at noon. Mr. Mosser responded that they had. Ms. Zavora asked for the May 1st view and suggested that the study was inaccurate. Mr. Rea responded that solstice would have an affect on the study. Mr. Mosser ran through the quarterly sun study slides again for the DRB to review. He told the DRB thank you for allowing him this review for his proposal and allowing him to provide an explanation. He stated that after the initial meeting of the DRB for this proposal he received a letter stating that Staff would likely support the project if the DRB was completely supportive of the request; he added that he hoped the DRB would be supportive of the requested height and the whole proposal. He stated his architect was very familiar with the location of the proposal and had walked the street to provide a great design. He stated he thought the project did two things; complemented the mass and scale of the historic Baxter Hotel and complemented the design of the Downtowner Mall. He stated he disagreed with Staff regarding the suggestion to setback portions of the building and suggested that Staff recommendations were not in keeping with a hotel. He stated that the uniform façade for two thirds of a block was less than the Downtowner Mall which had a uniform façade for a whole block and around the corner. He stated his proposal was consistent with Bozeman’s downtown and with what was already located on the site’s block. He stated the Baxter Hotel was a huge building that was built next to a one- story structure. He added that the Bozeman Hotel and Federal Building were massive as well, relative to what was seen on either side of them. Mr. Mosser stated he wondered when some of the tax districts created to remove blights would be used to remove the most severe cases downtown. He stated the Bozeman 2020 Community Plan identified the heart of the community as the intersection close to his proposal (Main Street and Willson Avenue). He stated his proposal would re-anchor the downtown area and cause a ripple to spur Bozeman to correct the existing issues of blight in that area (he cited East Willson School as an example of blight). He 251 Design Review Board Minutes – February 28, 2007 6 stated he loved downtown and had lived there for five years; adding that the historical precedent for the downtown area had been hotel landmarks. He added that chopping up the massing of the structure would not be what he envisioned for the downtown area, would not work for a hotel, and would not compliment the existing structures downtown. Mr. Banziger asked if the double vehicle openings on the façade facing Main Street had been addressed. Mr. Mosser responded that the accesses he had proposed had been preliminarily approved by the Highway Department as the proposal had originally depicted. The modification of those accesses would cause two extra vehicular movements through the site, making it awkward. He suggested looking at the existing parking lot/gas station on that corner and added that his proposal was a better option than what existed. Mr. Banziger suggested one-way in and the same way out to prevent vehicle stacking. Mr. Mosser responded that patrons would not appreciate a dark, unsafe parking lot and the proposed access layout provided safety for the patrons of the establishment. Ms. Zavora asked if Mr. Mosser did not receive support from the advisory boards and had to eliminate proposed features, what would they be (what was “Plan B”). Mr. Mosser responded that his “Plan B” would be a four-story structure with no pool or underground parking which would not cast much smaller shadows than a six-story structure would cast. He added that he thought it would be a missed opportunity not to institute the six-story structure on the site. He stated he could not do the proposal this summer if there were too many design issues and added that there had been no indications from Staff at the Informal Review (four-story hotel proposal) that he would need to break up the façade. He added that his “Plan B” might also be a ten-story structure. Ms. Zavora asked if the Mercury Advertising building was independently owned. Mr. Mosser responded that it was and Mercury Advertising had gotten to occupy the building without resolving their encroachment on his property. Ms. Zavora asked how the encroachment would affect the spacing between buildings. Mr. Mosser responded the encroachment would not affect the design of his proposal as the zero lot lines would apply and he would build right up to the existing structure. He added that his proposal would have a positive impact on Bozeman’s downtown and suggested it would be nice to have City support. Mr. Howe asked Mr. Mosser what he would do about the parking he alleviated if he did not get the requested deviation for the proposed height. Mr. Mosser responded a four-story building (as Informally proposed) would only provide interior surface parking. Mr. Howe asked Planner Bristor for clarification on how the DRB was to review the proposal. Planner Bristor responded that the DRB would need to provide a formal recommendation to the City Commission. MOTION: Mr. Rea moved, Mr. Batcheller seconded, to forward a recommendation of approval to the City Commission for City Hotel & Residence Club SP/COA/DEV #Z-06287 with Staff conditions. The motion died. Mr. Howe stated he enjoyed seeing the animated display and the model in the context of the neighborhood, but he was torn on going against the UDO for the requested height deviation. He stated there were no numerical limits in the ordinance to provide for massing of facades, which was challenging. Mr. Batcheller stated that he thought of the core of a city as an area that contained big buildings. He added that it would be a definite improvement to what existed and his concern was how the building would affect pedestrians on the street level. He stated that overall he liked the project 252 Design Review Board Minutes – February 28, 2007 7 and was supportive, but would not be supportive of a ten-story structure. Mr. Banziger stated he concurred that he would not support a ten-story structure, but did not object to seeing a six-story structure downtown or the proposed massing. He stated he would not use the Downtowner Mall down the street as a good example of architecture/massing. He suggested the existing Baxter Hotel had a broken façade to help minimize its massing and suggested working with the architectural detailing to make the building appear to have broken facades without changing the proposed footprint. He stated that the Highway Department had no aesthetic knowledge in terms of designing a building and he did not think the current entry design was appropriate for the building façade. He suggested reconsidering what the applicant was presenting to Main Street. He suggested the landscaping requirement that included structural screening to prevent parking from facing Main Street could have a more pedestrian friendly design that was more sidewalk oriented and less vehicular oriented. He stated he thought the six-story scale would be complimentary to downtown Bozeman. Mr. Howe added that detailing of the ground and second floors could break up the façade of the structure. Mr. Rea stated he was inclined to support the proposal but suggested setting the structure façade back from the property line (Main Street) at each higher level/story. He stated he was most disturbed by the probable winter shadow and suggested that setting the structure back further would help avoid that situation. He stated he supported the proposal and it would be a great addition to the downtown area, but his major concerns were the south and east elevations. He stated he hoped the project got built. Vice Chairperson Pentecost thanked Mr. Mosser for making a massing model and bringing it to the DRB for review as it had addressed many of his major concerns. He stated he did not think time had a monopoly on size and there could be an appropriate 7-20 story structure as long as it was well designed. He stated that the proposed building was very disrespectful to its neighbors (south and east), but thought the living and lodging on Main Street was important. He stated that the historical anchor of the Baxter Hotel was being challenged but he would not want to say that the DRB could not accept a great big chunky box on the corner. He stated the proposal did not just change the corner, but the whole historic downtown and caused a ripple effect through the Main Street area. He stated he agreed with previous DRB comments that the shadow from the structure would cause difficulties, but did not think it would be detrimental to the existing buildings across the street. He suggested the evolution of the block to the south might occur just because of the proposal’s location. He stated the mass along the streetscape seemed appropriate as he had looked at Billings to compare the proposal with their taller buildings. He stated that he could see Staff’s point by the making the suggestion of the structure rising to a six-story structure on the corner and stepping down in height for the remaining portions of the building. He also stated he agreed with Mr. Rea’s comment and suggested stepping the structure back further on the site. Ms. Zavora stated she would not like to see the structure step up in height to the corner and she thought it ruined the idea of a hotel; she suggested it should look like the whole structure served the same purpose. She stated that her concern was that the existing structures were dwarfed by the proposed structure, but she was supportive of the requested height. She suggested stepping the structure back (concurring with Mr. Rea and Vice Chairperson Pentecost) to provide for the streetscape. She stated she did not have issues with regard to needing to break-up the façade. She stated she was in favor of the project as proposed and suggested using concrete planters or hanging planters to screen the parking areas. She stated landscaping would be possible for the 253 Design Review Board Minutes – February 28, 2007 8 purpose of screening the parking. Mr. Livingston stated he appreciated the model and the slideshow presentation. He stated the suggested break-up/setbacks of the massing of the façade (as suggested in the Staff Memo) did not represent a collection of buildings and the proposal presented an articulate and uniform façade that spoke to its use. He stated that the facades on the ends (east and south) bothered him as they were on the lot line and had no windows even though they contained articulation. He stated he would like to see the street trees continued as it would add more interest to the site from the street level. He stated that just because Bozeman wanted people downtown, it would be unnecessary for a lot of people to be downtown. He stated that his original comments about massing paralleled Staff’s concerns and were directed to the north and west facades and that they tended to be out of scale; i.e. the Baxter Hotel is tall, but doesn’t have much mass so is not a fair comparison. He stated the Federal Building was roughly the same height and size, but was a similar kind of comparison; adding that the massing of the structure bothered him from a height standpoint. He stated he realized that the proposal was outside of the historic center of Bozeman, but a number of projects had attempted to compromise what people perceive as being the reason why Bozeman is what it is. He stated there was a perception that historic structures within historic districts would be vital to the reason why Bozeman was in the position it is in. He suggested not destroying the historic scale and massing of downtown Bozeman and recommended a proposal such as this be located off of Main Street. He directed the DRB to his sketches of the structure against an existing structure and stated he had come to the conclusion that there would be too much on the site. He added that going against the UDO in that location was inappropriate. MOTION: Vice Chairperson Pentecost moved, Mr. Banziger seconded, to forward a recommendation of approval to the City Commission with Staff conditions and the modification of Staff condition #16 to read that the design adhere to the guidelines of the Unified Development Ordinance as it pertains to height, 16b would be struck completely, 16c would remain, 16d would remain, 16e would remain. The motion was denied with Mr. Livingston and Vice Chairperson Pentecost in agreement 2-5. MOTION: Ms. Zavora moved, Mr. Batcheller seconded, to forward a recommendation of approval to the City Commission for City Hotel & Residence Club SP/COA/DEV #Z-06287 with Staff conditions and the modification of Staff condition #16 to strike 16a and 16b. The motion carried 5-2 with Mr. Livingston and Vice Chairperson Pentecost being in opposition. Vice Chairperson Pentecost stated that his proposed motion had been determined by the logic that adherence to the governing document (U.D.O.) was the guideline for every architect in the City and there was no need to allow that exception in Bozeman. He stated if the penthouse was removed and the applicant abided by Staff’s condition to allow a 25% height increase, it would be a lost story that wouldn’t have been seen from the street anyway. Ms. Zavora stated she did not believe Main Street had been called historical because it contained only one story structures. She stated she would not agree to bend the rules to allow an applicant to propose whatever they want but she would rather see people building up instead of restricted to shorter structures. She suggested keeping things centralized to Main Street. Mr. Batcheller stated he thought the rules (height restriction for Main Street core area) were flawed and he agreed with Ms. Zavora’s comments regarding cramming people into the outskirts 254 Design Review Board Minutes – February 28, 2007 9 of town. He stated there really wasn’t a whole lot of difference between 5 and 6 story structures. Mr. Howe stated that the height of proposed structures downtown will be a result of the high cost of land and it will drive applicants to request more height. He added that he was more against the height request than for it. Mr. Banziger stated he agreed with previous DRB comments regarding massing, but also agreed with the previous comments regarding cramped locations for people. He stated if the proposal was approved, it would not be long after that others started to propose those heights in Bozeman. Mr. Rea stated he thought the deviation request was part of following the rules in Bozeman and it had been put in place in the ordinance as such. He stated he thought the rules were working for the proposal and was not in support of the 2nd motion. Mr. Livingston reiterated the comments he had made previously and stated he felt there was a certain sense of inevitability that the scale and massing of downtown would change, but he also felt that other areas in the urban core would have the opportunity to increase the scale through infill. He stated he would not have as much of a problem with the proposal if it did not have 300 linear feet of continuous façade wrapped around the corner. Mr. Howe mentioned that he had not heard of any other proposed building in Bozeman having been argued over regarding the height with suggestions for making it larger than proposed. Mr. Howe asked if the DRB was discussing height as much as massing. Mr. Livingston responded that his perspective was the perceived bulk of the proposal. Vice Chairperson Pentecost agreed. Mr. Mosser added that the Bozeman 2020 Community Plan had called out increasing the allowable height of structures in the downtown area. ITEM 6. PUBLIC COMMENT – (15 – 20 minutes) {Limited to any public matter, within the jurisdiction of the Design Review Board, not on this agenda. Three-minute time limit per speaker.} There was no public available for comment at this time. ITEM 7. ADJOURNMENT There being no further comments from the DRB, the meeting was adjourned at 9:15 p.m. ________________________________ Christopher Livingston, Chairperson City of Bozeman Design Review Board 255 TABLE OF CONTENTS 1 APPLICATION FORMS Development Review Application Site Plan Checklist Planned Unit Development Checklist Checklist Responses Certified List of Adjacent Land Owners 2 PROJECT BACKGROUND Project Description Application Fees Ownership & Representatives Vicinity Map Neighborhood Character NRCS Soils Information 3 SITE PLAN Site Plan (Existing) Site Plan (Proposed) Engineering Details Landscape Plan Building Elevations (3-plex) Building Floor Plans (3-plex) Building Elevations (4-plex) Building Floor Plans (4-plex) Light Detail 4 REVIEW CRITERIA RESPONSES Growth Policy Goals and Objectives PUD Review Criteria 5 CONDOMINIUM ASSOCIATION DOCUMENTS 256 Page 1 Appropriate Review Fee Submitted CITY OF BOZEMAN DEPARTMENT OF PLANNING AND COMMUNITY DEVELOPMENT Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net DEVELOPMENT REVIEW APPLICATION 1. Name of Project/Development: 2. Property Owner Information: Name: E-mail Address: Mailing Address: Phone: FAX: 3. Applicant Information: Name: E-mail Address: Mailing Address: Phone: FAX: 4. Representative Information: Name: E-mail Address: Mailing Address: Phone: FAX: 5. Legal Description: 6. Street Address: 7. Project Description: 8. Zoning Designation(s): 9. Current Land Use(s): 10. Bozeman 2020 Community Plan Designation: 257 258 Page 3 (Site Plan Checklist – Prepared 12/05/03; revised 9/22/04) SITE PLAN CHECKLIST These checklists shall be completed and returned as part of the submittal. Any item checked “No” or “N/A” (not applicable) must be explained in a narrative attached to the checklist. Incomplete submittals will be returned to the applicant. A. Design Review Board (DRB) Site Plan Review Thresholds. Does the proposal include one or more of the following: Design Review Board (DRB) Site Plan Review Thresholds Yes No 1. 20 or more dwelling units in a multiple household structure or structures 2. 30,000 or more square feet of office space, retail commercial space, service commercial space or industrial space 3. More than two buildings on one site for permitted office uses, permitted retail commercial uses, permitted service commercial uses, permitted industrial uses or permitted combinations of uses 4. 20,000 or more square feet of exterior storage of materials or goods 5. Parking for more than 60 vehicles B. General Information. The following information shall be provided for site plan review: General Information Yes No N/A 1. Location map, including area within one-half mile of the site 2. List of names and addresses of property owners according to Chapter 18.76, BMC (Noticing) 3. A construction route map shall be provided showing how materials and heavy equipment will travel to and from the site. The route shall avoid, where possible, local or minor collector streets or streets where construction traffic would disrupt neighborhood residential character or pose a threat to public health and safety 4. Boundary line of property with dimensions 5. Date of plan preparation and changes 6. North point indicator 7. Suggested scale of 1 inch to 20 feet, but not less than 1 inch to 100 feet 8. Parcel size(s) in gross acres and square feet 9. Estimated total floor area and estimated ratio of floor area to lot size (floor area ratio, FAR), with a breakdown by land use 10. Location, percentage of parcel(s) and total site, and square footage for the following: a. Existing and proposed buildings and structures b. Driveway and parking c. Open space and/or landscaped area, recreational use areas, public and semipublic land, parks, school sites, etc. d. Public street right-of-way 11. Total number, type and density per type of dwelling units, and total net and gross residential density and density per residential parcel 12. Detailed plan of all parking facilities, including circulation aisles, access drives, bicycle racks, compact spaces, handicapped spaces and motorcycle parking, on-street parking, number of employee and non-employee parking spaces, existing and proposed, and total square footage of each 259 Page 4 General Information, continued Yes No N/A 13. The information required by Section 18.78.060.L, BMC (Streets, Roads and Alleys), unless such information was previously provided through a subdivision review process, or the provision of such information was waived in writing by the City during subdivision review of the land to be developed, or the provision of such information is waived in writing by the City prior to submittal of a preliminary site plan application 14. Description and mapping of soils existing on the site, accompanied by analysis as to the suitability of such soils for the intended construction and proposed landscaping 15. Building design information (on-site): a. Building heights and elevations of all exterior walls of the building(s) or structure(s) b. Height above mean sea level of the elevation of the lowest floor and location of lot outfall when the structure is proposed to be located in a floodway or floodplain area c. Floor plans depicting location and dimensions of all proposed uses and activities 16. Temporary facilities plan showing the location of all temporary model homes, sales offices and/or construction facilities, including temporary signs and parking facilities 17. Unless already provided through a previous subdivision review, a noxious weed control plan complying with Section 18.78.050.H, BMC (Noxious Weed Management and Revegetation Plan) 18. Drafts of applicable supplementary documents as set forth in Chapter 18.72, BMC (Supplementary Documents) C. Site Plan Information. The location, identification and dimension of the following existing and proposed data, onsite and to a distance of 100 feet (200 feet for PUDs) outside the site plan boundary, exclusive of public rights-of-way, unless otherwise stated: Site Plan Information Yes No N/A 1. Topographic contours at a minimum interval of 2 feet, or as determined by the Planning Director 2. Adjacent streets and street rights-of-way to a distance of 150 feet, except for sites adjacent to major arterial streets where the distances shall be 200 feet 3. On-site streets and rights-of-way 4. Ingress and egress points 5. Traffic flow on-site 6. Traffic flow off-site 7. Utilities and utility rights-of-way or easements: a. Electric b. Natural gas c. Telephone, cable television and similar utilities d. Water e. Sewer (sanitary, treated effluent and storm) 8. Surface water, including: a. Holding ponds, streams and irrigation ditches b. Watercourses, water bodies and wetlands c. Floodplains as designated on the Federal Insurance Rate Map or that may otherwise be identified as lying within a 100-year floodplain through additional floodplain delineation, engineering analysis, topographic survey or other objective and factual basis d. A floodplain analysis report in compliance with Chapter 18.58, BMC (Bozeman Floodplain Regulations) if not previously provided with subdivision review 260 Page 5 Site Plan Information, continued Yes No N/A 9. Grading and drainage plan, including provisions for on-site retention/detention and water quality improvement facilities as required by the Engineering Department, or in compliance with any adopted storm drainage ordinance or best management practices manual adopted by the City 10. All drainageways, streets, arroyos, dry gullies, diversion ditches, spillways, reservoirs, etc. which may be incorporated into the storm drainage system for the property shall be designated: a. The name of the drainageway (where appropriate) b. The downstream conditions (developed, available drainageways, etc.) c. Any downstream restrictions 11. Significant rock outcroppings, slopes of greater than 15 percent or other significant topographic features 12. Sidewalks, walkways, driveways, loading areas and docks, bikeways, including typical details and interrelationships with vehicular circulation system, indicating proposed treatment of points of conflict 13. Provision for handicapped accessibility, including but not limited to, wheelchair ramps, parking spaces, handrails and curb cuts, including construction details and the applicant’s certification of ADA compliance 14. Fences and walls, including typical details 15. Exterior signs. Note – The review of signs in conjunction with this application is only review for compliance with Chapter 18.52, BMC (Signs). A sign permit must be obtained from the Department of Planning and Community Development prior to erection of any and all signs. 16. Exterior refuse collection areas, including typical details 17. A site plan, complete with all structures, parking spaces, building entrances, traffic areas (both vehicular and pedestrian), vegetation that might interfere with lighting, and adjacent uses, containing a layout of all proposed fixtures by location and type. The materials required in Section 18.78.060.R, BMC (Lighting Plan), if not previously provided 18. Curb, asphalt section and drive approach construction details 19. Landscaping - detailed plan showing plantings, equipment, and other appropriate information as required in Section 18.78.100, BMC (Submittal Requirements for Landscaping Plans). If required, complete section C below 20. Unique natural features, significant wildlife areas and vegetative cover, including existing trees and shrubs having a diameter greater than 2.5 inches, by species 21. Snow storage areas 22. Location of City limit boundaries, and boundaries of Gallatin County’s Bozeman Area Zoning Jurisdiction, within or near the development 23. Existing zoning within 200 feet of the site 24. Historic, cultural and archeological resources, describe and map any designated historic structures or districts, and archeological or cultural sites 25. Major public facilities, including schools, parks, trails, etc. D. Landscape Plans. If a landscape plan is required, the following information shall be provided on the landscape plan: Landscape Plan Information Yes No N/A 1. Date, scale, north arrow, and the names, addresses, and telephone numbers of both the property owner and the person preparing the plan 2. Location of existing boundary lines and dimensions of the lot 261 Page 6 Landscape Plan Information, continued Yes No N/A 3. Approximate centerlines of existing watercourses, required watercourse setbacks, and the location of any 100-year floodplain; the approximate location of significant drainage features; and the location and size of existing and proposed streets and alleys, utility easements, utility lines, driveways and sidewalks on the lot and/or adjacent to the lot 4. Project name, street address, and lot and block description 5. Location, height and material of proposed screening and fencing (with berms to be delineated by one foot contours) 6. Locations and dimensions of proposed landscape buffer strips, including watercourse buffer strips 7. Complete landscape legend providing a description of plant materials shown on the plan, including typical symbols, names (common and botanical name), locations, quantities, container or caliper sizes at installation, heights, spread and spacing. The location and type of all existing trees on the lot over 6 inches in caliper must be specifically indicated 8. Complete illustration of landscaping and screening to be provided in or near off-street parking and loading areas, including information as to the amount (in square feet) of landscape area to be provided internal to parking areas and the number and location of required off-street parking and loading spaces 9. An indication of how existing healthy trees (if any) are to be retained and protected from damage during construction 10. Size, height, location and material of proposed seating, lighting, planters, sculptures, and water features 11. A description of proposed watering methods 12. Location of street vision triangles on the lot (if applicable) 13. Tabulation of points earned by the plan – see Section 18.48.060, BMC (Landscape Performance Standards) 14. Designated snow removal storage areas 15. Location of pavement, curbs, sidewalks and gutters 16. Show location of existing and/or proposed drainage facilities which are to be used for drainage control 17. Existing and proposed grade 18. Size of plantings at the time of installation and at maturity 19. Areas to be irrigated 20. Planting plan for watercourse buffers, per Section 18.42.100, BMC (Watercourse Setbacks), if not previously provided through subdivision review 21. Front and side elevations of buildings, fences and walls with height dimensions if not otherwise provided by the application. Show open stairways and other projections from exterior building walls 262 Page 3 (PUD Checklist – Prepared 12/2/03; revised 9/21/04) PLANNED UNIT DEVELOPMENT CHECKLIST The appropriate checklist shall be completed and returned as part of the submittal. Any item checked “No” or “N/A” (not applicable) must be explained in a narrative attached to the checklist. Incomplete submittals will be returned to the applicant. A. Planned Unit Development – Concept Plan. The following information and data shall be submitted: PUD Concept Plan Information Yes No N/A 1. Data regarding site conditions, land characteristics, available community facilities and utilities and other related general information about adjacent land uses and the uses of land within one-half mile of the subject parcel of land 2. Conceptual (sketch) drawing showing the proposed location of the uses of land, major streets and other significant features on the site and within one-half mile of the site 3. A computation table showing the site’s proposed land use allocations by location and as a percent of total site area B. Planned Unit Development – Preliminary Plan. The following information and data shall be submitted: PUD Preliminary Plan Information Yes No N/A 1. The following information shall be presented in an 8½- by 11-inch vertically bound document. The document shall be bound so that it will open and lie flat for reviewing and organized in the following order: a. Application forms b. A list of names of all general and limited partners and/or officers and directors of the corporation involved as either applicants or owners of the planned unit development c. Statement of applicable City land use policies and objectives achieved by the proposed plan and how it furthers the implementation of the Bozeman growth policy d. Statement of the proposed ownership of open space areas e. Statement of the applicant’s intentions with regard to future ownership of all or portions of the planned unit development f. Estimate of number of employees for business, commercial and industrial uses g. Description of rationale behind the assumptions and choices made by the applicant h. Where deviations from the requirements of this title are proposed, the applicant shall submit evidence of successful completion of the applicable community design objectives and criteria of Section 18.36.090 (PUD Design Objectives and Criteria), BMC. The applicant shall submit written explanation for each of the applicable objectives or criteria as to how the plan does or does not address the objective or criterion. The Planning Director may require, or the applicant may choose to submit, evidence that is beyond what is required in that section. Any element of the proposal that varies from the criterion shall be described i. Detailed description of how conflicts between land uses of different character are being avoided or mitigated j. Statement of design methods to reduce energy consumption, (e.g., home/business utilities, transportation fuel, waste recycling) 263 Page 4 PUD Preliminary Plan Information, continued Yes No N/A 1. The following information shall be presented in an 8½- by 11-inch vertically bound document. The document shall be bound so that it will open and lie flat for reviewing and organized in the following order: k. A development schedule indicating the approximate date when construction of the planned unit development, or stages of the same, can be expected to begin and be completed, including the proposed phasing of construction of public improvements and recreational and common space areas j. One reduced version of all preliminary plan and supplemental plan maps and graphic illustrations at 8½- by 11-inches or 11- by 17-inches size 2. In addition to all of the information listed on the Site Plan Checklist, the following information shall be included on the site plan: a. Notations of proposed ownership, public or private, should be included where appropriate b. The proposed treatment of the perimeter of the planned unit development, including materials and techniques used, such as screening, fences, walls and other landscaping c. Attorney’s or owner’s certification of ownership 3. Viewsheds: a. Looking onto and across the site from areas around the site, describe and map the views and vistas from adjacent properties that may be blocked or impaired by development of the site b. Describe and map areas of high visibility on the site as seen from adjacent off-site locations 4. Street cross-section schematics shall be submitted for each general category of street, including: a. The proposed width b. Treatment of curbs and gutters, or other storm water control system if other than curb and gutter is proposed c. Sidewalk systems d. Bikeway systems, where alternatives to the design criteria and standards of the City are proposed 5. Physiographic data, including the following: a. A description of the hydrologic conditions of the site with analysis of water table fluctuation and a statement of site suitability for intended construction and proposed landscaping, in compliance with Section 18.78.120.B.3.c, BMC b. Locate and identify the ownership of existing wells or well sites within 400 feet of the site 6. If the project involves or requires platting, a preliminary subdivision plat, subject to the requirements of this title relative to subdivisions, shall be submitted 7. Not withstanding the waiver provisions of Section 18.78.080.B.9, BMC, at the discretion of the City Engineer, a traffic impact analysis shall be prepared based upon the proposed development. The analysis shall include provisions of the approved development guidelines, and shall address impacts upon surrounding land uses. The Director of Public Service may require the traffic impact analysis to include the information in Section 18.78.050.L, BMC. If a traffic impact analysis has been submitted as part of a concurrent subdivision review, that analysis shall meet this requirement 8. If the development’s compliance with the community design objectives and criteria is under question, the City Commission may require additional impact studies or other plans as deemed necessary for providing thorough consideration of the proposed planned unit development 9. A proposed draft of a legal instrument containing the creation of a property owner’s association sufficient to meet the requirements of Section 18.72.020 (Property Owners Association), BMC shall be submitted with the preliminary plan application 264 CHECKLIST RESPONSES Site Plan Application: A. Design Review Board Site Plan Thresholds 1. 20 or more dwelling units in a multiple household structure or structures. No. The proposal for the Woodhaven Village Condominiums includes tri-plex and four-plex townhouse style building configurations consistent with R-3 zoning district. 2. 30,000 or more square feet of office space, retail commercial space, service commercial space or industrial space. No office, commercial or industrial space is provided within Woodhaven Village. 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. No. A total of four buildings are proposed for the site but all of the buildings are for residential units only. 4. 20,000 or more square feet of exterior storage of materials or goods. No exterior storage is proposed. 5. Parking for more than 60 vehicles. No. The proposal is for 13 townhouse units with each unit containing 3 bedrooms for a total parking requirement of 39 parking spaces including on- street parking. B. General Information 3. A construction route map shall be provided showing how materials and heavy equipment will travel to and from the site. The route shall avoid, where possible, local or minor collector streets or streets where construction traffic would disrupt neighborhood residential character or pose a threat to public health and safety. No. A construction route map will provide a construction route map with the Final PUD Plan if needed. 265 17. Unless already provided through a previous subdivision review, a noxious weed control plan complying with Section 18.78.050.H, BMC (Noxious Weed Management and Revegetation Plan). Not applicable. A noxious weed plan was provided with the Baxter Square Subdivision. The property owner will comply with the approved plan. C. Site Plan Information 5. Traffic flow on-site. and 6. Traffic flow off-site. No. A traffic impact analysis was provided with the Baxter Square Subdivision proposal. Preliminary discussions with the Engineering Office indicated that no additional traffic analysis was necessary with this application. 15. Exterior signs. Note – The review of signs in conjunction with this application is only review for compliance with Chapter 18.52, BMC (Signs). A sign permit must be obtained from the Department of Planning and Community Development prior to erection of any and all signs. No. A sign plan for the Woodhaven Village property has not been developed. In the event a sign is proposed the applicant will provide the sign design details with the Final PUD Plan and apply for all necessary permits. 16. Exterior refuse collection areas, including typical details. Not applicable. The units are configured as townhouse style units. Each unit will have an individual refuse receptacle which will be kept indoors except for designated trash pick up days. 24.Historic, cultural and archeological resources, describe and map any designated historic structures or districts, and archeological or cultural sites. Not applicable. A cultural resource inventory was completed with the Baxter Square Subdivision. No known cultural resources were identified within the subdivision. Planned Unit Development Application: 1. The following information shall be presented in an 8½- by 11-inch vertically bound document. The document shall be bound so that it will open and lie flat for reviewing and organized in the following order: f. Estimate of number of employees for business, commercial and industrial uses. 266 Not applicable. Woodhaven Village is part of a residential planned unit development that does not include any provision for business, commercial or industrial uses. h. Where deviations from the requirements of this title are proposed, the applicant shall submit evidence of successful completion of the applicable community design objectives and criteria of Section 18.36.090 (PUD Design Objectives and Criteria), BMC. The applicant shall submit written explanation for each of the applicable objectives or criteria as to how the plan does or does not address the objective or criterion. The Planning Director may require, or the applicant may choose to submit, evidence that is beyond what is required in that section. Any element of the proposal that varies from the criterion shall be described. Not applicable. No additional deviations or relaxations are being requested with this application. The property owner acknowledges that the lot specific deviations requested with the Baxter Square PUD are not applicable to this project. 4. Street cross-section schematics shall be submitted for each general category of street, including: d.Bikeway systems, where alternatives to the design criteria and standards of the City are proposed. Not applicable. No bikeway systems are proposed within the Woodhaven Village site. The required bikeway system adjacent to the watercourse setback was installed with Baxter Square Subdivision Phase 1. 6. If the project involves or requires platting, a preliminary subdivision plat, subject to the requirements of this title relative to subdivisions, shall be submitted. No. The Amendment to the Baxter Square PUD for Woodhaven Village Condominiums does not include a subdivision application. 7. Not withstanding the waiver provisions of Section 18.78.080.B.9, BMC, at the discretion of the City Engineer, a traffic impact analysis shall be prepared based upon the proposed development. The analysis shall include provisions of the approved development guidelines, and shall address impacts upon surrounding land uses. The Director of Public Service may require the traffic impact analysis to include the information in Section 18.78.050.L, BMC. If a 267 traffic impact analysis has been submitted as part of a concurrent subdivision review, that analysis shall meet this requirement. No. Preliminary discussions with the Engineering Office indicated that no additional traffic analysis was necessary with this application. 8. If the development’s compliance with the community design objectives and criteria is under question, the City Commission may require additional impact studies or other plans as deemed necessary for providing thorough consideration of the proposed planned unit development. Not applicable. The City Commission conditionally approved the Baxter Square Subdivision with a number of relaxations. No additional impact studies were required with the City’s approval. The proposed Amendment to the PUD does not request any relaxations from the City’s ordinance. The request is strictly proposed in order to increase the number of residential dwelling units approved with the Baxter Square Subdivision. The application does not propose a density bonus. 268 ADJACENT LAND OWNERS Weston K. and Karley L. Paul 2221 Buckrake Avenue Bozeman, MT 59718-8619 John F. & Karen J. Sheady 2775 Baxter Lane Bozeman, MT 59718-8541 Jeffrey J. Johnson Carrie Gaffney 100 East Dooley Lane Belgrade, MT 59714-7217 CAVU LLC 13707 Camp Creek Road Manhattan, MT 59741-8619 ABV Land Development 1627 West Main Street, Suite 117 Bozeman, MT 59715-4011 Lawry J & Dorothy M Brekke 5131 Baxter Lane Bozeman, MT 59718-9799 Ronald K & Janice E Lewis 2875 Baxter Lane Bozeman, MT 59718 Cascade Development Inc 1627 West Main Street, Suite 223 Bozeman, MT 59715 269 270 PROJECT DESCRIPTION Woodhaven Village will be developed on 1.313 acres located on the northwest corner of Baxter Lane and Buckrake Avenue and legally described as Lot 23, Block 2, Baxter Square Subdivision Phase 1. The lot is bound by Baxter Lane (minor arterial public street) on the south, Buckrake Avenue (local public street) on the east, Hoover Street (private street) on the north and Baxter Square Subdivision linear park and Cattail Creek on the west. The existing single household residence which was converted into a multi-household structure currently supports 3 residential dwelling units. The existing building will be demolished and the site will be redeveloped to include 4 townhouse style structures (3 tri-plex and 1 four-plex) for a total of 13 dwelling units. The property is zoned R-3 Residential Medium Density District and the underlying growth policy designation is Residential. In 2002 Syme-Darvis and DAK properties were annexed to the City of Bozeman and in 2003 the property owners combined their properties to create a proposal for Baxter Square Subdivision. The subdivision received preliminary approval for a Planned Unit Development for the subdivision of 18 acres into 101 townhouse lots, 2 8-plex lots and one single household lot for the existing residence. The townhouses are configured in 2 to 5 unit clusters as depicted in the Baxter Square PUD file #Z-03132. The planned unit development was originally approved for a total of 118 residential units. Section 18.36.040.C.4.b.(2).(b) requires an amendment to a planned unit development if more than a 2% increase in residential dwelling units is proposed after final plan approval. The amendment would allow an additional 12 dwelling units in Baxter Square Subdivision. The application does not require a residential density bonus. The R-3 zoning district allows a density of 1 dwelling unit for every 3,000 square feet. The net density would still meet the 1 unit per 3,000 square feet minimum. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. Each of the 13 townhouse units will have 3 bedrooms for a parking requirement of 3 spaces per unit and a total of 39 spaces. All of the units will have two-car garages which accounts for 26 spaces. The tri-plex buildings have adequate space behind the garage to allow for stacking which will provide another 18 parking spaces. The four-plex building will utilize 4 on-street parking spaces which will make up 3 spaces per unit and total of 48 parking spaces for the complex. The buildings on the property were oriented around a horseshoe drive aisle with the primary entrance to each unit facing towards Buckrake Avenue. The design 271 will preserve a majority of the mature landscaping present on the site and will provide a pleasing architectural element facing the linear park system. The redevelopment of the property will require a minimum of 1,950 square feet of open space to be set aside on site for active or passive recreation of the residents. The site plan depicts a total of 4,800 square feet reserved amongst the mature trees in the northwest corner of the property. Parkland for Baxter Square Subdivision was calculated based on 0.03 acres for 118 dwelling units and the subdivider met the parkland requirements through a combination of land and cash in lieu of parkland. The property owner acknowledges that this development will generate a requirement for 0.36 acres (12 additional units x 0.03 acres = 0.36 acres) of additional parkland and proposes to meet this requirement with cash in lieu. Water, sewer, gas, electric, telephone and internet utilities were installed within the adjacent right of ways Buckrake Avenue and Hoover Street. Woodhaven Village will connect to water and sewer from both streets. Three street cuts in Buckrake Avenue will be needed in order to connect to water, sewer and fire services. The property slopes gently to the northwest. The property will be graded and a paved swale will be installed along the drive aisle to direct storm water towards the retention pond planned in the northeast corner of the property. Snow storage areas have been delineated on the north and south side of the drive aisle. As currently designed the townhouse development would provide two approaches off of Buckrake Avenue. This plan would utilize the existing residential access off of Buckrake Avenue. As conditioned with the preliminary plat application a new approach was constructed for Lot 23 off of Buckrake Avenue instead of Baxter Lane. The new approach was constructed 70 feet from the Baxter Lane intersection and only wide enough for one-way traffic. Section 18.44.090.D.3 requires a 150 foot minimum separation distance from an arterial street. The access will be widened to meet the City’s requirements for a two-way access but will not meet the minimum separation distance. The following information from Section 18.44.090.H has been provided for the City Engineer’s consideration: a. Traffic volume- Based on the ITE manuals, a development consisting of 13 townhouse/condominium units will generate as many as 115 average daily trip ends on a weekday. b. Turning movements- There are no turning movement restrictions proposed. Traffic entering and leaving the site will be split between the two entrances and will primarily travel on Buckrake Avenue to and from the 272 intersection with Baxter Lane. The sight triangles at the site access and on the north side of Baxter Lane are unimpeded with good visibility in all directions. c. Traffic controls- A stop sign will be installed at the approach. Vehicles leaving the development will be required to yield to northbound and southbound traffic on Buckrake Avenue. d. Site design- As depicted on the site plan the approach is 70 feet from the Baxter Lane intersection and approximately 40 feet from the stop sign. e. Sight distances- There are no major vertical or horizontal curves near the intersection or approach providing restrictions on sight distance. f. Location and alignment of other access points- The approach is aligned with one townhouse approach on the east side of Buckrake Avenue. There are 2 approaches for Woodhaven Village onto Buckrake Avenue which are separated by approximately 150 feet. The approaches have been highlighted in the attached exhibit. 273 274 APPLICATION FEES Preliminary PUD Plan- 20 Copies $1,000 + ($25 per residential unit x 13 units) + $800 advertising = Total Application Fee: $2,125 OWNERSHIP & REPRESENTATIVES Owner: D&D Palmer LLC 90 West Fieldview Circle Bozeman, MT 59715 Cell: 570-8963 Fax: 586-0089 nickpalmer@msn.com and dlpalmer35@hotmail.com Applicant: Nick Palmer 2050 Fairway Drive Bozeman, MT 59715 Cell: 570-8963 Fax: 586-0089 nickpalmer@msn.com Planner: Engineer: Jami Morris LLC C&H Engineering and Surveying 159 Mountain Lion Trail 1091 Stoneridge Drive Bozeman, MT 59718 Bozeman, MT 59718 Cell: 570-6209 Phone: 587-1115 Fax: 582-9265 Fax: 587-9768 jamimorris@bresnan.net mcotterman@chengineers.com Architect: Landscape Professional: JDS Architects Inc Sweet Pea 2413 W Main Street, Ste 2 350 Lodgepole Lane Bozeman, MT 59718 Bozeman, MT 59718 Phone: 556-8080 Phone: 582-8882 Fax: 585-1677 Cell: 599-0852 mtarchitect@msn.com danlafrance@sweetpealandscaping.com 275 276 View from Baxter Lane looking north View from Buckrake Avenue looking southwest View from Hoover Street looking southeast SouthSouth WestWestNorthNorth 277 Baxter Square Townhouses West Winds Subdivision (across Baxter Lane) Baxter Apartments (across Baxter Lane) EastEast NorthNorth NorthNorth NorthNorth SouthSouth SoutheastSoutheast 278 279 MAP INFORMATION SOIL SURVEY OF GALLATIN COUNTY AREA, MONTANA Source of Map: Natural Resources Conservation ServiceWeb Soil Survey URL: http://websoilsurvey.nrcs.usda.gov Coordinate System: UTM Zone 12 Soil Survey Area: Gallatin County Area, MontanaSpatial Version of Data: 2Soil Map Compilation Scale: 1:24000 The orthophoto or other base map on which the soil lines were compiled anddigitized probably differs from the background imagery displayed on these maps. As a result, some minor shifting of map unit boundaries may be evident. Map comprised of aerial images photographed on these dates: 8/15/1995 MAP LEGEND Soil Map UnitsCities Detailed CountiesDetailed StatesInterstate Highways RoadsRails WaterHydrographyOceans Escarpment, bedrockEscarpment, non-bedrock GulleyLeveeSlope BlowoutBorrow PitClay Spot Depression, closedEroded Spot Gravel PitGravelly SpotGulley Lava FlowLandfill Marsh or SwampMiscellaneous WaterRock Outcrop Saline SpotSandy Spot Slide or SlipSinkholeSodic Spot Spoil AreaStony SpotVery Stony Spot Perennial WaterWet Spot Web Soil Survey 1.1 National Cooperative Soil Survey 1/9/2007 Page 2 of 3280 Map Unit Legend SummaryMap Unit Legend SummaryMap Unit Legend SummaryMap Unit Legend Summary Gallatin County Area, Montana Map Unit Symbol Map Unit Name Acres in AOI Percent of AOI 50B Blackdog silt loam, 0 to 4 percent slopes 14.8 71.4 53B Amsterdam silt loam, 0 to 4 percent slopes 0.0 0.0 510B Meadowcreek loam, 0 to 4 percent slopes 5.9 28.6 Soil Survey of Gallatin County Area, MontanaSoil Survey of Gallatin County Area, MontanaSoil Survey of Gallatin County Area, MontanaSoil Survey of Gallatin County Area, Montana Web Soil Survey 1.1 National Cooperative Soil Survey 1/9/2007 Page 3 of 3 281 Gallatin County Area, Montana [The information in this table indicates the dominant soil condition but does not eliminate the need for onsite investigation. The numbers in the value columns range from 0.01 to 1.00. The larger the value, the greater the potential limitation. The table shows only the top five limitations for any given soil. The soil may have additional limitations] Pct. of map unit Map symbol and soil name Rating class and limiting features Value Rating class and limiting features Rating class and limiting featuresValue Value Dwellings without basements Dwellings with basements Small commercial buildings 50B: 90Blackdog Not limited Not limited Not limited 53B: 85Amsterdam Not limited Not limited Not limited 510B: 85Meadowcreek Not limited Somewhat limited Not limited Depth to saturated zone 0.99 Dwellings and Small Commercial Buildings Tabular Data Version Date: 09/15/2006 Tabular Data Version: 4 Page 1 of 1 This report shows only the major soils in each map unit. Others may exist. 282 Gallatin County Area, Montana [The information in this table indicates the dominant soil condition but does not eliminate the need for onsite investigation. The numbers in the value columns range from 0.01 to 1.00. The larger the value, the greater the potential limitation. The table shows only the top five limitations for any given soil. The soil may have additional limitations] Pct. of map unit Map symbol and soil name Rating class and limiting features Value Rating class and limiting features Rating class and limiting featuresValue Value Local roads and streets Shallow excavations Lawns and landscaping 50B: 90Blackdog Somewhat limited Somewhat limited Not limited Cutbanks cave 0.10Frost action 0.50 53B: 85Amsterdam Somewhat limited Somewhat limited Not limited Cutbanks cave 0.10Frost action 0.50 510B: 85Meadowcreek Very limited Very limited Not limited Cutbanks cave 1.00 Depth to saturated zone 0.99 Frost action 1.00 Roads and Streets, Shallow Excavations, and Lawns and Landscaping Tabular Data Version Date: 09/15/2006 Tabular Data Version: 4 Page 1 of 1 This report shows only the major soils in each map unit. Others may exist. 283 Gallatin County Area, Montana [The information in this table indicates the dominant soil condition but does not eliminate the need for onsite investigation. The numbers in the value columns range from 0.00 to 0.99. The smaller the value, the greater the limitation] Pct. of map unit Map symbol and soil name Rating class and limiting features Value Rating class and limiting features Rating class and limiting featuresValue Value Potential as a source of reclamation material Potential as a source of roadfill Potential as a source of topsoil 50B: 90Blackdog Fair Good Good Carbonate content 0.80 Organic matter content low 0.88 Water erosion 0.99 53B: 85Amsterdam Fair Good Fair No carbonate limitation 0.99Carbonate content 0.68 Organic matter content low 0.88 Water erosion 0.90 510B: 85Meadowcreek Fair Fair Poor Hard to reclaim (rock fragments) 0.00 Wetness depth 0.98 No rock fragments 1.00 Wetness depth 0.98Organic matter content low 0.13 Droughty 0.86 Water erosion 0.99 Source of Reclamation Material, Roadfill, and Topsoil Tabular Data Version Date: 09/15/2006 Tabular Data Version: 4 Page 1 of 1 This report shows only the major soils in each map unit. Others may exist. 284 Gallatin County Area, Montana Percent passing sieve number-- Map symbol and soil name Depth USDA texture Plasticity index Liquid limit FragmentsClassification Unified AASHTO >10 Inches 3-10 Inches 4 10 40 200 In Pct Pct Pct 50B: Blackdog 0-10 0 0 100 100 95-100 80-90 25-30 5-10Silt loam CL-ML A-4 10-19 0 0 100 100 95-100 85-95 30-40 10-20Silty clay loam CL A-6 19-60 0 0 100 100 95-100 80-90 25-30 5-10Silt loam CL-ML A-4 53B: Amsterdam 0-8 0 0 100 100 95-100 75-95 25-30 5-10Silt loam CL-ML A-4 8-15 0 0 100 100 95-100 80-95 25-35 5-15Silty clay loam, Silt loam, Very fine sandy loam CL, CL-ML A-4, A-6 15-42 0 0 100 100 95-100 80-90 25-30 5-10Silt loam, Very fine sandy loam CL-ML A-4 42-60 0 0 100 100 95-100 70-90 20-30 NP-10Silt loam, Very fine sandy loam CL-ML, ML A-4 510B: Meadowcreek 0-11 0 0 95-100 90-100 70-95 50-75 20-30 5-10LoamCL-ML A-4 11-25 0 0 95-100 90-100 70-90 40-75 20-30 5-10Loam, Silt loam, Sandy loam CL-ML, SC-SM A-4 25-60 0 0-10 25-45 15-35 10-25 0-10 0-19 NPVery gravelly loamy sand, Very gravelly sand, Extremely gravelly sand GP, GP-GM A-1 Engineering Properties Tabular Data Version Date: 09/15/2006 Tabular Data Version: 4 Page 1 of 1 This report shows only the major soils in each map unit. Others may exist. 285 Gallatin County Area, Montana Wind erodi- bility index Wind erodi- bility group Erosion factors Kw Kf T Organic matter Linear extensi- bility Available water capacity Saturated hydraulic conductivity Moist bulk density Map symbol and soil name Depth Sand Silt Clay In Pct Pct Pct g/cc micro m/sec In/In Pct Pct 50B: Blackdog 5 6 480-10 ------20-27 1.10-1.30 4.00-14.00 0.18-0.20 0.0-2.9 2.0-4.0 .32 .32 10-19 ------27-35 1.20-1.40 1.40-4.00 0.16-0.20 3.0-5.9 1.0-3.0 .32 .32 19-60 ------15-25 1.20-1.40 4.00-14.00 0.16-0.20 0.0-2.9 0.5-1.0 .37 .37 53B: Amsterdam 5 6 480-8 ------20-27 1.10-1.30 4.00-14.00 0.18-0.20 0.0-2.9 2.0-4.0 .32 .32 8-15 ------18-30 1.20-1.40 1.40-4.00 0.17-0.20 0.0-2.9 1.0-2.0 .43 .43 15-42 ------18-27 1.25-1.45 4.00-14.00 0.16-0.20 0.0-2.9 0.5-1.0 .37 .37 42-60 ------10-20 1.25-1.50 4.00-14.00 0.17-0.19 0.0-2.9 0.0-0.5 .43 .43 510B: Meadowcreek 3 5 560-11 ------18-25 1.20-1.40 4.00-14.00 0.18-0.20 0.0-2.9 2.0-5.0 .37 .37 11-25 ------18-27 1.20-1.40 4.00-14.00 0.13-0.15 0.0-2.9 1.0-3.0 .37 .37 25-60 ------0-5 1.20-1.50 141.00 0.02-0.03 0.0-2.9 0.0-0.5 .05 .20 Physical Soil Properties Tabular Data Version Date: 09/15/2006 Tabular Data Version: 4 Page 1 of 1 This report shows only the major soils in each map unit. Others may exist. 286 287 288 289 290 291 292 293 294 295 296 297 298 299 GROWTH POLICY GOALS AND OBJECTIVES Woodhaven Village PUD Amendment is consistent with the underlying growth policy classification of “Residential” and is consistent with the covenants for Baxter Square Subdivision. 4.9.1 Community Design- Create a community composed of neighborhoods designed for human scale and compatibility in which services and amenities are convenient, visually pleasing, and properly integrated and designed to encourage walking, cycling and mass transit use. Human Scale- Œ The maximum building height in the R-3 Residential Medium Density District for a roof pitch of 6:12 or greater is 40 feet. The proposed units will be 29 feet tall. Œ The townhouse units in Baxter Square Subdivision are two-story and the units in Woodhaven Village are proposed to be two-story. Œ The combination of building height, setback and the incorporation of architectural details and landscaping will provide aesthetically pleasing human scale design. Compatibility- Œ The proposal is for 4 two-story buildings: 3 tri-plex buildings and 1 four- plex building. The buildings in the area are two-story townhouse buildings in 2 to 5 unit clusters. Œ The building design will not mimic the architectural design of the adjacent units but instead will provide a design that is visually pleasing, in keeping with the character of the neighborhood and consistent with the color and material palette for Baxter Square Subdivision. Convenience- Œ The units are conveniently located near a major trail system adjacent to Cattail Creek that once completed will run from Valley Center Road to the ponds adjacent to the Gallatin Valley Mall; connecting Cattail Creek, Baxter Square, West Winds, Harvest Creek, North Meadows and Babcock Meadows Subdivisions. Œ The property is less than 1mile from Gallatin Center and approximately ½ mile from Bridger Peaks; two major retail centers. Visually Pleasing- Œ The building design and open spaces have been designed to provide an aesthetically pleasing haven for residents of Woodhaven Village. Œ The yards, open space and mature landscaping within the property will provide appear as an extension to the linear trail/park system for Baxter Square Subdivision. 300 Œ The units are designed to provide front facades towards Buckrake Avenue and towards the linear park with the garages oriented towards the inside of the complex. Encourage walking, cycling and mass transit- Œ Lot 23 is located on the east side of the Cattail Creek linear park corridor and transportation pathway. The multi-use path is intended to support cycling and pedestrians. Œ The Streamline currently makes timed stops in Bridger Peaks Town Center (approximately ½ mile) and Gallatin Center (less than 1 mile). 4.9.5 Urban Forestry- Enhance the urban appearance, environment, air quality, and general quality of life through the provision of a healthy urban forest. The building location on the property was created to take advantage of the existing mature vegetation. As demonstrated in the pictures the property has a number of large, mature spruce and cottonwoods. A majority of the mature existing vegetation will either be left in place or relocated on the property. 5.7.1 Housing- Promote an adequate supply of safe housing that is diverse in type, density, and location, with special emphasis on maintaining neighborhood character and stability. Type- Œ Baxter Square Subdivision was consists of 101 townhouse lots and 3 multi-household lots. The townhouse lots enable property owners to own both the dwelling and the land. Woodhaven Village will offer the same style of residence, only as condominiums, which offers another option for home ownership where property owners own the interior unit but share maintenance responsibility and ownership of the common areas. Density- Œ Baxter Square Subdivision was originally approved for 118 dwelling units which equated to an average net density of one unit for every 4,000 square feet or approximately 11 dwelling units per acre. Œ The amendment to the planned unit development would provide 12 additional dwelling units within the subdivision which would equate to one unit for every 3,600 square feet or 12 dwelling units per acre. 301 maximize shade attributed to the existing mature vegetation and to minimize the amount of asphalt needed to provide two-way access and parking. Transportation Networks- The property is located on Baxter Lane. There is no physical access from the property to Baxter Lane. The property accesses Baxter Lane via Buckrake Avenue. The application requests a deviation from the City Engineer’s Office from the minimum access separation requirements. The access deviation would allow the property owner to utilize the existing drive approach that was installed with the Baxter Square Subdivision improvements. Additionally, 3 of the 4 buildings are located due east of the planned transportation multi-use pathway. Access to the park and trail system will be maintained and enhanced with this development. Selection & Placement of Landscaping- The landscape plan utilizes the existing mature landscaping. Either the existing trees will maintain their current location or will be relocated on the lot. (5) Are the elements of the site plan (e.g. buildings, circulation, open space and landscaping, etc.) designed and arranged to maximize the privacy by the residents of the project? The buildings have been arranged on the site to maximize the privacy of the residents of the project. The building arrangement on the site will allow the property owner to preserve the largest number of existing mature trees. The existing mature spruce will provide a year round buffer from Baxter Lane and the trees and shrubs maintained along the west side of the property will provide a green buffer during the summer months. (6) Park Land. Does the design and arrangement of buildings and open space areas contribute to the overall aesthetic quality of the site configuration, and has the area of park land or open space been provided for each proposed dwelling as required by '18.50.020, BMC? Parkland- The Baxter Square Subdivision met the parkland requirements with a combination of parkland dedication and cash in lieu of parkland. The property owner acknowledges that an additional 0.36 acres of parkland will be required with the additional density. Since the lot is only 1.239 acres (net) the owner proposes to meet the additional parkland requirements with cash in lieu of parkland. Open Space- The open space provided with the subdivision was designed to meet the requirements of Section 18.50.020. Additional open space will be provided to meet the minimum requirement of 150 square feet of open space per dwelling unit. A total of 1,950 square feet of open 302 Maintains Neighborhood Character- Œ Although the form of ownership for Woodhaven Village will be condominiums the units will be constructed in townhouse style which is consistent with the rest of the subdivision. Œ Baxter Square Subdivision consists of 2 to 5 unit clusters of two-story townhouse structures. The Woodhaven units are designed as two-story units in 3-plex and 4-plex configurations. 6.6.1 Land Use- Create a sense of place that varies throughout the City, efficiently provide public and private basic services and facilities in close proximity to where people live and work, and minimize sprawl. Sense of place- Œ The creative and attractive building design, with mature landscaping and close proximity to trail, park and watercourse features will produce a distinct residential sense of place. Efficient services and proximity of uses- Œ The property is in close proximity to food shopping, hardware stores and restaurants located on North 19th Avenue. Baxter Meadows Subdivision to the west will also provide neighborhood convenience uses. Minimize sprawl- Œ The increase in residential dwelling units within the Baxter Square Subdivision will provide a location for additional density without requiring a residential density bonus and while still meeting the 1 dwelling unit per 3,000 square foot requirement in the R-3 zoning district. The proposed amendment will result in average density of 1 dwelling unit for every 3,600 square feet. Œ The buildings will be two-story to maximize the developable area of the subdivision by building up rather than out. Œ While minimizing sprawl the building sizes will still be compatible with the adjacent neighborhood in regard to building mass and bulk. 303 PUD REVIEW CRITERIA a. All Development. All land uses within a proposed planned unit development shall be reviewed against, and comply with, the applicable objectives and criteria of the mandatory “All Development” group. (1) Does the development comply with all City design standards, requirements and specifications for the following services: water supply, trails/walks/bike ways, sanitary supply, irrigation companies, fire protection, electricity, flood hazard areas, natural gas, telephone, storm drainage, cable television, and streets? There are no irrigation canals or flood hazards within the subject property. The Baxter Square Planned Unit Development will continue to comply with all City design standards in the following manner: Water and Sanitary Supply- Two buildings will connect to water and sewer located in Buckrake Avenue and two building will connect to water and sewer located within Hoover Street. Trails/Walks/Bike Ways- Woodhaven Village is located on the east side of Cattail Creek and the adjacent trail corridor. The development will provide direct access to the trail system. Fire Protection- A fire hydrant will be installed on the north side of the four- plex building. The fire hydrant will be connected to the utilities in Buckrake Avenue. Electricity, Natural Gas, Telephone Cable- Adequate utilities were installed with Baxter Square Subdivision to support the addition of 12 more residential units in the subdivision. Streets- Woodhaven Village fronts on Buckrake Avenue which is a public local street. The street was designed to include the standard boulevard and sidewalk. The property is bound on the north by Hoover Street which is a private street. Lot 23 was platted to the middle of Hoover Street. The south 13 feet of right of way are located within the northern portion of the lot. There is a 4 foot wide curbwalk that was constructed with the street improvements installed with Phase 1 of Baxter Square. Baxter Lane borders the property on the south side. The street is identified as a minor arterial in the Bozeman Area Transportation Plan. The boulevard and street trees have already been installed along Baxter Lane. Storm Drainage- The property slopes gently to the northwest. The property will be graded and a paved swale will be installed along the drive aisle to 304 direct storm water towards the retention pond planned in the northeast corner of the property. (2) Does the project preserve or replace existing natural vegetation? There are numerous mature spruce and cottonwoods on the property. The buildings were oriented on the lot in a manner that would preserve the largest number of mature trees. The landscape plan depicts which trees will be preserved and which trees will be relocated elsewhere on the site. (3) Are the elements of the site plan (e.g., buildings, circulation, open space and landscaping, etc.) designed and arranged to produce an efficient, functionally organized and cohesive planned unit development? Buildings- The Woodhaven Village buildings have been located along a horseshoe shaped drive aisle to provide through circulation and to reduce the amount of paving on the site. The site design is intended to provide the most aesthetically pleasing and least disruptive design possible. Circulation- Access to the townhouse development will be provided from two approaches off of Buckrake Avenue. This plan utilizes the existing residential access off of Buckrake Avenue that was constructed with extension of the street. Open space- The redevelopment of the property will require a minimum of 1,950 square feet of open space to be set aside on site for active or passive recreation of the residents. The site plan depicts a total of 4,800 square feet reserved amongst the mature trees in the northwest corner of the property. Landscaping- The landscaping plan meets and exceeds the 23 landscape performance points required for a residential PUD. The plan utilizes all of the existing mature landscaping to meet the point requirements. (4) Does the design and arrangement of elements of the site plan (e.g. building construction, orientation, and placement; transportation networks; selection and placement of landscape materials; and/or use of renewable energy sources; etc.) contribute to the overall reduction of energy use by the project? Building Construction, Orientation & Placement- The amendment to the PUD would allow the construction of 3 new residential buildings. The proposed location of the new buildings on the property was designed to 305 space is required. The plan provides approximately 2,000 square feet of open space in the northwest corner of the property. (7) Performance. All PUDs shall earn at least twenty performance points. Nonresidential developments within the North 19th Avenue/Oak Street corridor shall earn thirty points. Points may be earned in any combination of the following. The applicant shall select the combination of methods but the City may require documentation of performance, modifications to the configuration of open space, or other assurances that the options selected shall perform adequately. a. Provision of affordable housing: Two points for each percent of constructed dwellings in the residential development; OR – One point for each constructed dwelling or lot donated to the City; b. Additional open space: One point for each percent of the project area that is provided as non-public open space; or one and one quarter points for each percent of the project area that is provided as publicly accessible open space. Baxter Square Subdivision met the minimum performance points with open space. The watercourse setback adjacent to Cattail Creek provided a majority of the open space to fulfill the point requirement. (8) Is the development being properly integrated into development and circulation patterns of adjacent and nearby neighborhoods so that this development will not become an isolated “pad” to adjoining development? The Baxter Square Subdivision was well integrated with adjacent development circulation patterns. The subdivision provided for the extension of Buckrake Avenue from which the subject property will gain access. b. Residential. Planned unit developments in residential areas (R-S, R-1, R-2, R-3, R-4, RMH and R-O zoning districts) may include a variety of housing types designed to enhance the natural environmental, conserve energy, recognize, and to the maximum extent possible, preserve and promote the unique character of neighborhoods, with provisions for a mix of limited commercial development. (1) On a net acreage basis, is the average residential density in the project (calculated for residential portion of the site only) consistent with the development densities set forth in the land use guidelines of the Bozeman growth policy? 306 The planned unit development was originally approved for a total of 118 residential units. The amendment would allow an additional 12 dwelling units in Baxter Square Subdivision. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. (2) Does the project provide for private outdoor areas (e.g., private yards, patios and balconies, etc.) for use by the residents and employees of the project which are sufficient in size and have adequate light, sun, ventilation, privacy and convenient access to the household or commercial units they are intended to serve? The proposal would provide common yard areas for the 3-plex buildings along the, north, south and west property lines. The 4-plex buildings will share a common front yard off of Buckrake Avenue. Additional open space will be provided to meet the minimum requirement of 150 square feet of open space per dwelling unit. A total of 1,950 square feet of open space is required. The plan provides approximately 2,000 square feet of open space in the northwest corner of the property. (3) Does the project provide for outdoor areas for use by persons living and working in the development for active or passive recreational activities? Aside from the common open space within the residential development the residents of the complex will have direct and immediate access to the adjacent linear park and trail system. (4) If the project is proposing a residential density bonus as described below, does it include a variety of housing types and styles designed to address community wide issues of affordability and diversity of housing stock? Not applicable. The application does not require a residential density bonus. The amendment would allow an additional 12 dwelling units in Baxter Square Subdivision. Section 18.36.040.C.4.b.(2).(b) requires an amendment to a planned unit development if more than a 2% increase in residential dwelling units is proposed after final plan approval. The R-3 zoning district allows a density of 1 dwelling unit for every 3,000 square feet. The net density would still meet the 1 unit per 3,000 square feet minimum. The proposed amendment would provide a net density of 12 dwelling units per net acre or approximately 3,600 square feet per dwelling unit. (5) Is the overall project designed to enhance the natural environment, conserve energy and to provide efficient public services and facilities? 307 Natural Environment- The project has been designed to benefit from the existing natural environment through the preservation of the existing trees. Conserve Energy- The design will allow for reduced energy consumption during the construction phase by providing a minimal amount of paving. Asphalt tends to be a heat sync which requires increased energy consumption for cooling. Also, preservation of the mature evergreen trees and large canopy trees will provide additional shade and cooling of the residential units. Efficient Public Services- The additional units will generate as many as 76 new average daily trips which should not adversely impact public services and facilities. (6) Residential Density Bonus. If the project is proposing a residential density bonus (30 percent maximum) above the residential density of the zoning district within which the project is located and which is set forth in Chapter 18.16, BMC, does the proposed project exceed the established regulatory design standards (such as for setbacks, off-street parking, open space, etc.) and ensure compatibility with adjacent neighborhood development? Not applicable. No residential density bonus has been requested with this application. (7) Limited Commercial. If limited commercial development, as defined above, is proposed within the project, is less than 20 percent of the gross area of the PUD designated to be used for offices or neighborhood service activities not ordinarily allowed in the particular residential zoning district? Not applicable. No commercial uses were identified with the original subdivision proposal. (8) Does the overall PUD recognize and, to the maximum extent possible, preserve and promote the unique character of neighborhoods in the surrounding area? Baxter Square Subdivision was designed to provide a medium density townhouse development. The townhouses in the neighborhood are two- story buildings in 2 to 5 unit clusters. The Woodhaven Village proposal is for 4 two-story townhouse buildings. The building design will not mimic the architectural design of the adjacent units but instead will provide a design that is visually pleasing, in keeping with the character of the neighborhood and consistent with the color and material palette for Baxter Square Subdivision. 308 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 1 B Y L A W S O F W O O D H A V E N V I L L A G E C O N D O M I N I U M O W N E R S A S S O C I A T I O N ______ TABLE OF CONTENTS Purpose and Application ............................................................................................1 Membership ................................................................................................................2 Obligations..................................................................................................................2 Meetings and Voting ..................................................................................................2 Voting Interest ............................................................................................................3 Board of Directors ......................................................................................................3 Officers of the Association ........................................................................................3 Powers and Duties of the Board of Directors ...........................................................3 Vacancies and Removal .............................................................................................5 Compensation .............................................................................................................5 Managers ....................................................................................................................5 Amendment of Bylaws...............................................................................................6 Assessments................................................................................................................6 The Declaration ..........................................................................................................6 ARTICLE I. PURPOSE AND APPLICATION These Articles are and shall be the Bylaws of the Woodhaven Village Condominium Owners Association ("Association"). These Bylaws shall, upon being recorded with the Clerk and Recorder of Gallatin County, Montana, govern and control the administration of Woodhaven Village Condominium (the "Condominium"). All unit owners, their guests, and any permitted tenants, present and future, shall have the rights and responsibilities described in these Bylaws and shall be subject to the provisions thereof. The Association, upon a resolution of its Board of Directors, may be incorporated as a Montana non- profit corporation. The acquisition of an ownership interest in a unit in the Condominium signifies that the unit owner accepts, ratifies, and agrees to comply with these Bylaws. 309 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 2 ARTICLE II. MEMBERSHIP Persons owning a unit in the Condominium or an interest in a unit, or owning a unit in any real estate tenancy relationship recognized by the State of Montana, shall be members of the Association. An owner may not decline membership in the Association. Membership begins concurrently with the acquisition of an ownership interest and terminates at the time such ownership interest is terminated. Such termination shall not relieve any unit owner of liability for obligations incurred while a member of the Association. Membership in the Association shall not in any way negate or impair any unit owner's legal remedies which may arise from or be incidents of unit ownership, including but not limited to the right to bring legal action or assert legal defenses pertaining to any and all actions involving the Association, other unit owners, or the management. ARTICLE III. OBLIGATIONS Each unit owner shall be obligated to comply with these Bylaws, the Declaration, any other covenants and restrictions affecting the Condominium property, and all applicable laws. Such obligations shall include but not be limited to paying of assessments levied by the Association and adherence to the protective covenants and restrictions that are a part of the Declaration. Failure of any owner to abide by these Bylaws and all rules made pursuant to them, any other covenants and restrictions affecting the Condominium property, and all applicable laws shall be grounds for appropriate legal action by the Association or by an aggrieved unit owner against such non-complying owner. ARTICLE IV. MEETINGS AND VOTING There shall be a regular meeting of the Association annually on the first Monday in October of each year, commencing in the year 2007, or on such other date properly announced by the Association. Pursuant to these Bylaws, the Association may at any time hold special meetings. Such special meetings may be called on the initiative of the chairperson elected pursuant to Article VII, the board of directors, the written request of a manager, or a petition signed by the unit owners representing at least fifty percent (50%) of the total votes attributable to the Condominium units. Notice of any special meeting must specify the reason for such meeting and the matters to be raised. Only matters set forth in the petition or request may be brought before such meeting unless otherwise agreed by a majority of the votes present at the special meeting or voted by proxy. A. Notice. The Association's secretary shall mail notice of all meetings, regular or special, to every unit owner of record at such owner's address of record at least ten (10) days prior to the time for holding such meeting. Such notice shall specify the date, time, and place of the meeting and shall make provisions to allow for the voting of each unit owner's interest by proxy at the discretion of the unit owner. The mailing of a notice in the manner provided in this paragraph or the personal delivery of such notice by the Secretary of the Association shall be considered as notice served. B. Quorum. No meeting, regular or special, shall be convened to conduct business unless a quorum is present in person or by proxy. A quorum shall consist of fifty percent (50%) of the total votes attributable to all of the Condominium units. At any meeting where a quorum is not present, such meeting shall be adjourned forthwith. 310 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 3 ARTICLE V. VOTING INTEREST Each unit owner at Association meetings shall have the voting interest as set forth in the Declaration, a copy of which is being filed concurrently with the filing of these Bylaws with the Clerk and Recorder of Gallatin County, Montana. Unit owners have an equal voting interest, on a one (1) vote per unit basis, on all matters pertaining to the general business of the Condominium, the common elements, and assessments for the common elements. The right to vote upon matters pertaining to limited common elements and assessments for limited expenses shall be limited to those unit owners having an interest in units to which such limited common elements are appurtenant, and voting shall occur on a one (1) vote per unit basis. Whenever a quorum is present at a meeting of the Association or the board of directors, those present may do any and all acts they are empowered to do unless specific provisions of these Bylaws, the Declaration or applicable laws direct otherwise. ARTICLE VI. BOARD OF DIRECTORS A. Structure and Authority of the Board. The governance of the Condominium shall be by a board of five (5) directors elected from the Association membership. The board of directors shall have all powers and responsibilities attendant to the general administration and control of the Condominium. Additionally, the board of directors shall have the authority necessary to carry into effect the powers and duties specified by these Bylaws. B. Procedure for Election of the Board of Directors. At the first and all subsequent annual meetings of the Association, nominations for positions on the board of directors shall be accepted from any of the unit owners present. Voting will be non-cumulative, with each unit owner having a vote (on a one vote per unit basis) for as many persons as there are Directors to be elected. Board members shall be elected by majority vote of the interests present or voting by proxy at any annual or special meeting. C. Term of Directors. Each elected member of the Board of Directors shall have a term of one (1) year. The first board of directors consisting of two (2) persons, named below, shall serve until the first annual meeting of the Association, at which time a new board shall be elected. ARTICLE VII. OFFICERS OF THE ASSOCIATION The board of directors shall appoint elected members of the board to serve in the positions of Chairperson, Vice-Chairperson, Secretary, and Treasurer of the Association. ARTICLE VIII. POWERS AND DUTIES OF THE BOARD OF DIRECTORS The board of directors shall have the following powers and duties: A. To call annual meetings of the Association and give due notice thereof. B. To conduct elections of the board of directors. C. To enforce the provisions of the Declaration and Bylaws by appropriate action. 311 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 4 D. To promulgate and adopt rules and regulations for the use of the common elements and for the occupancy of the units so as not to interfere with the peace and quiet of all the residents. Such rules shall be approved by seventy-five percent (75%) of the total votes attributable to the Condominium units at any regular or special meeting of the Association. E. To provide for the management of the Condominium by hiring or contracting with suitable and capable management and personnel for the day-to-day operation, maintenance, upkeep, and repair of the general common and limited common elements. F. To levy assessments as allowed by the Declaration, these Bylaws, and applicable law, and to provide for the collection, expenditure, and accounting of said assessments. G. To pay for the expenses of the maintenance, repair, and upkeep of the general common elements and the limited common elements, and to approve payment vouchers either at regular or special meetings. H. To delegate authority to a manager for the routine conduct of Condominium business; provided, however, that such authority shall be precisely defined with ultimate authority at all time residing in the board of directors. I. To provide a means of hearing grievances of unit owners and to respond appropriately thereto. J. To meet at regularly scheduled times and to hold such meetings open to all unit owners or their agents. K. To prepare an annual budget for the Condominium in order to determine the amount of the assessments payable by the unit owners to meet the general common and limited common expenses, and allocate and assess such charges among the unit owners according to their respective interests in the general common and limited common elements. L. To levy and collect special assessments whenever, in the opinion of the board, it is necessary to do so because of emergencies or to meet increased operating or maintenance expenses, costs or additional capital expenses. M. To take appropriate legal action to collect any delinquent assessments, payments or amounts due from unit owners or from any person or persons owing money to the condominium, to levy a penalty, to charge interest on unpaid amounts due and owing, and, in a foreclosure proceeding, to charge a reasonable rental for the unit. However, other than for the collection of delinquent assessments or accounts, the board shall not initiate any litigation or lawsuit without prior approval of a majority of the voting interest of the unit owners in the condominium. N. To defend in the name of the Association any and all lawsuits wherein the Condominium is a party defendant. O. To enter into contracts necessary to carry out the duties herein set forth. P. To establish a bank account for the Condominium, and to keep therein all funds of the Association. Withdrawal of monies from such accounts shall only be by checks signed by such persons as are authorized by the board of directors. Q. To make repairs, alterations, additions, and improvements to the general common and limited common elements consistent with managing the Condominium in the best interests of the unit owners. 312 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 5 R. To provide for the perpetual maintenance of the general common open area and landscaping, the parking areas and driving lanes, and to make any assessments necessary for such maintenance as provided herein. Such maintenance shall specifically include the control of county-declared noxious weeds. S. To arrange, keep, maintain, and renew the insurance for the Association as set forth in the Declaration. T. To act on behalf of the Association in matters concerning the Condominium unit owners membership in the Baxter Square Subdivision P.U.D. – Phases 1 and 2, including but not limited to casting the votes for the lot or lots in Baxter Square Subdivision P.U.D. – Phases 1 and 2, upon which the Condominium is situated. ?? U. In general, to act for and carry on the administration and affairs of the Association as authorized and prescribed by the Declaration, and to do all those things which are necessary and reasonable in order to carry out the governance and operation of the Condominium. ARTICLE IX. VACANCIES AND REMOVAL Should a vacancy occur on the board of directors, the board, subject to the exception described below, shall appoint a member of the Association to serve for the unexpired term. Such vacancy shall be filled no later than the next regular board meeting after which it occurs. If the Board does not fill the vacancy prior to the next regular meeting of the Association, the Association may fill the vacancy. At any regular or special meeting of the Association, any member of the board may be removed by a majority of the voting interests in the Condominium. The Association shall fill such vacancy. Such removal matter must be announced in the notice of such regular or special meeting. The personal delivery of such notice by the Secretary of the Association shall be considered notice served. ARTICLE X. COMPENSATION No member of the board of directors shall receive any compensation for acting as such. Nothing herein, however, shall be construed to preclude compensation being paid to a manager who is hired by the board of directors. ARTICLE XI. MANAGERS If the board of directors elects to hire a manager, the manager shall be appointed by the board of directors. The manager shall serve at the pleasure of the board, and the board may remove the manager. The manager (or any member of the board or Association handling Association funds or having power to withdraw or spend such funds) may be required to be bonded and shall maintain records of the financial affairs of the condominium. Such records shall also detail all assessments made by the Association and the status of payments of said assessments by all unit owners. All records shall be available for examination during normal business hours to any unit owner or a representative designated by the owner. All functions and duties herein provided for the manager may be performed by the board or the chairperson if the board should decide not have a manager. A. Accounts. The receipts and expenditures of the Association shall be under the direction of the manager and be classified as appropriate into general common expenses and limited common expenses, and shall include a provision for current expenses which shall include all receipts and 313 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 6 expenditures to be made within the year for which the budget is made, including a reasonable allowance for contingencies and working funds, except expenditures chargeable to reserves or betterments. The balance in this fund at the end of each year shall be applied to reduce the assessments for current expenses for the succeeding year. Other budget items may be provided for in the discretion of the manager. B. Budget. The manager shall prepare and submit a proposed budget to the board each calendar year. An annual budget must be approved and adopted by the board. The budget shall include the estimated funds required to defray the general common and limited common expenses and to provide and maintain funds for the foregoing accounts according to good accounting practices. Copies of the budget and proposed assessments shall be transmitted to each member on or before the annual meeting of the year preceding the year for which the budget is made. If the budget is subsequently amended, a copy of the amended budget shall be furnished to each member. C. Financial Report. An audit and financial report of the accounts of the Association shall be made annually. The audit and financial report may be made either by the manager, the treasurer of the Association, or by an accountant or certified public accountant. The board of directors shall determine who shall complete the audit and financial report. A copy of the financial report shall be furnished to each member on or before the annual meeting of each year for which the report is made. The manager shall generally operate and manage the Condominium for and on behalf of the unit owners and shall have such other powers and authority as the board may designate. If there is no manager, or if the manager resigns, is terminated or his contract expires, the board shall perform all the duties of the manager. ARTICLE XII. AMENDMENT OF BYLAWS These Bylaws may be amended at any regular or special meeting of the Association providing that a copy of the proposed revision is included in the notice of such meeting. Upon the affirmative vote of seventy- five percent (75%) of the votes attributable to all of the units in the Condominium, the amendment shall be declared adopted. The secretary shall as soon as practicable after adoption, prepare a copy of the Bylaws, as amended, for certification by the chairperson and secretary of the Association. Such amended and certified Bylaws shall then be filed and recorded in the office of the Clerk and Recorder of Gallatin County, State of Montana. Bylaws as amended shall become effective at the time of such recording. ARTICLE XIII. ASSESSMENTS In accordance with the percentage of interest in the general common elements as set forth in the Declaration, each unit owner shall be assessed for general common expenses. Such assessments, and assessments for limited common expenses, shall be collected and paid according to the terms and under the procedures more particularly set forth in the Declaration. The amount of assessments described above and any other assessments allowed by these Bylaws, the Declaration, and by governmental authority, shall be fixed by the board of directors. Notice of each owner's assessments shall be mailed to said owner at such owner's address of record. ARTICLE XIV. THE DECLARATION The undersigned, the "Declarant", has filed, along with these Bylaws, a Declaration whereby the properties known as Woodhaven Village Condominium are submitted to the Unit Ownership Act, Title 70, Chapter 23 of the Montana Code Annotated, as a condominium. The Declaration shall govern the acts, 314 BYLAWS OF WOODHAVEN VILLAGE CONDOMINIUM OWNERS ASSOCIATION................................................................................................PAGE 7 powers, duties and responsibilities of the Association, and in the event these Bylaws and the Declaration are in conflict, the Declaration shall prevail. The definition of terms set forth in the Declaration shall be applicable throughout these Bylaws and the interpretation thereof. By virtue of the Declaration and these Bylaws, each unit owner has the right to membership in the Association, and any unit owner may be on the board of directors of the Condominium. The Association and its board of directors shall have the primary and final authority on all matters solely affecting the Condominium, subject to all applicable laws. IN WITNESS WHEREOF, the undersigned, as the owner of record of all of the Condominium units and 100% of the voting interests of Woodhaven Village Condominium as of the date hereof, and hereby appoints the following persons to serve on the board of directors and as officers until the first annual meeting of the Association, to-wit: Dominic M. Palmer Dennis L. Palmer and the Declarant hereby declares and affirms the adoption of the foregoing Bylaws on __________________, 2006. D & D Palmer, LLC, a Montana limited liability company. by:___________________________________ Dominic M. Palmer, Member STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on October ____, 2006, by Dominic M. Palmer as a member of D & D Palmer, LLC, a Montana limited liability company. __________________________________________ Printed Name: ______________________________ NOTARY PUBLIC for the State of Montana RESIDING AT _____________________, Montana [Seal] My Commission Expires ____________, 20___ 315 Return to: D & D Palmer, LLC PO Box 1701 Bozeman, Montana 59771-1701 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM..............................................................................................................................PAGE i D E C L AR A T IO N F O R W O O D H A V EN V I L LA G E C ON D O M I N I U M ___________ TABLE OF CONTENTS CERTIFICATE OF NAME .....................................................................................................................................iii CERTIFICATE OF ARCHITECT ...........................................................................................................................iv SECTION 1. DEFINITIONS .................................................................................................................................1 SECTION 2 REAL ESTATE; CONDOMINIUM PROPERTY..............................................................................3 2.1 Description.....................................................................................................................................3 2.2 Condominium Units......................................................................................................................3 2.3 Site and Floor Plans ......................................................................................................................3 2.4 Driveways; Parking Areas ............................................................................................................4 2.5 Walkways; Porches .......................................................................................................................4 2.6 Unit Boundaries.............................................................................................................................4 2.7 Construction Materials..................................................................................................................4 SECTION 3 EASEMENTS, COMMON ELEMENTS ...........................................................................................4 3.1 Common Element Easements.......................................................................................................4 3.2 Utility Easements—Reservation ..................................................................................................5 3.3 Easement for Inspection, Repair, etc...........................................................................................5 3.4 Right of Access..............................................................................................................................5 3.5 Ingress and Egress.........................................................................................................................5 3.6 Encroachments ..............................................................................................................................5 SECTION 4 OWNERSHIP ....................................................................................................................................5 4.1 Ownership of Units .......................................................................................................................5 4.2 Percentage of Interest in Common Elements ..............................................................................5 SECTION 5 USE OF CONDOMINIUM PROPERTY ...........................................................................................6 5.1 Use Restrictions.............................................................................................................................6 5.2. Use of Common Elements............................................................................................................7 SECTION 6 THE ASSOCIATION ........................................................................................................................8 316 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE ii 6.1 Membership ...................................................................................................................................8 6.2 Function .........................................................................................................................................8 6.3 Limitation on Authority ................................................................................................................8 6.4 Voting Interest ...............................................................................................................................8 6.5 Failure to Comply..........................................................................................................................8 SECTION 7 ASSESSMENTS; LIENS...................................................................................................................9 7.1 Liability for Assessments..............................................................................................................9 7.2 Assessments—Purposes, Procedure.............................................................................................9 7.3 Payment of Assessments.............................................................................................................10 7.4 Liens and Foreclosure.................................................................................................................10 7.5 Bidding at Foreclosure Sale........................................................................................................11 SECTION 8 DECLARANT'S RIGHT TO CHANGE ..........................................................................................11 8.1 Alteration of Design and Boundaries.........................................................................................11 8.2 Declarant's Rights During Development ...................................................................................11 SECTION 9 AMENDMENT ...............................................................................................................................11 9.1 Amendment by Unit Owners ......................................................................................................11 9.2 Amendment by Declarant ...........................................................................................................11 SECTION 10 ALTERATIONS, MAINTENANCE AND REPAIRS ....................................................................12 10.1 Alterations....................................................................................................................................12 10.2 Exterior Alterations .....................................................................................................................12 10.3 Interior Remodeling ....................................................................................................................12 10.4 Liens for Alterations ...................................................................................................................12 10.5 Maintenance by Association.......................................................................................................12 10.6 Damages arising from Maintenance...........................................................................................12 10.7 Maintenance by Unit Owners.....................................................................................................12 SECTION 11 INSURANCE ................................................................................................................................13 11.1 Purchase .......................................................................................................................................13 11.2 Coverage ......................................................................................................................................13 11.3 Deductible and Other Insurance Features ..................................................................................14 11.4 Premiums .....................................................................................................................................14 11.5 Insurance Trustee ........................................................................................................................14 11.6 Distribution of Proceeds .............................................................................................................14 11.7 Association as Agent...................................................................................................................15 11.8 Benefit to Mortgagees.................................................................................................................15 SECTION 12 RECONSTRUCTION AFTER CASUALTY ..................................................................................15 12.1 Reconstruction .............................................................................................................................15 SECTION 13 REMOVAL OR PARTITION; SUBDIVISION..............................................................................16 13.1 Procedure for Removal or Partition ...........................................................................................16 13.2 Subdivision Prohibited................................................................................................................16 13.3 Application of Section ................................................................................................................17 SECTION 14 MISCELLANEOUS ......................................................................................................................17 14.1 Covenants to Run with Land ......................................................................................................17 14.2 Service of Process .......................................................................................................................17 14.3 Disclaimer....................................................................................................................................17 14.4 Remedies......................................................................................................................................17 14.5 Severability ..................................................................................................................................17 14.6 Binding Effect..............................................................................................................................17 14.7 Interpretation ...............................................................................................................................17 14.8 Captions .......................................................................................................................................17 14.9 Nondiscrimination.......................................................................................................................17 317 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE iii CERTIFICATE OF NAME The undersigned, being the duly authorized agent of the Department of Revenue of the State of Montana within the County of Gallatin, executes the following certificate relating to Woodhaven Village Condominium situated on lands legally described as follows: Lot 23 in Block 2 of Baxter Square Subdivision P.U.D. – Phases 1 and 2, City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. (Plat Reference: J-409) 1. That the name "Woodhaven Village Condominium" is not the same as, similar to, or pronounced the same as a word in the name of any other property or subdivision within Gallatin County, except for the word "Condominium"; and 2. All taxes and assessments due and payable for the above-described property have been paid. DATED: ______________, 2007. _______________________________________ County Assessor 318 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM............................................................................................................................PAGE iv CERTIFICATE OF ARCHITECT The undersigned, being a duly registered professional architect in the State of Montana, and the architect preparing the floor plans for Woodhaven Village Condominium, certifies that the floor plans for Woodhaven Village Condominium attached to the Declaration are an accurate copy of the plans filed with and approved by the officials and officers of the City of Bozeman having jurisdiction to issue building permits. DATED: ______________, 2007. _______________________________________ Jesse D. Sobrepena Registered Professional Architect Number: 2557 319 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 1 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM THIS DECLARATION is made ___________________, 2007, by D & D PALMER, LLC, a Montana limited liability company, PO Box 1701, Bozeman, Montana 59771-1701 ("Declarant"), whereby the lands and property hereinafter described are submitted to the provisions of Title 70, Chapter 23 of the Montana Code Annotated, also known as the "Unit Ownership Act", as a condominium. The property subject to this Declaration shall be known as WOODHAVEN VILLAGE CONDOMINIUM (the "Condominium"). The addresses of the Condominium are as follows: Building No. Unit No. Address 1 1A, 1B, 1C, 1D ______________, Bozeman, Montana 59718 2 2A, 2B, 2C ______________, Bozeman, Montana 59718 3 3A, 3B, 3C ______________, Bozeman, Montana 59718 4 4A, 4B, 4C ______________, Bozeman, Montana 59718 SECTION 1. DEFINITIONS Unless the context expressly provides otherwise, the following definitions shall pertain throughout this Declaration and in the interpretation thereof: 1.1 "Association" shall mean the Woodhaven Village Condominium Owners Association, an association of all of the unit owners acting as a group and in accordance with this Declaration and duly adopted Bylaws. 1.2 "Board of directors" shall mean the board of directors of the Association as more particularly defined in the Bylaws. 1.3 "Building" or "buildings" shall mean a multiple-unit building or buildings, respectively, comprising a part of the Condominium property. 1.4 "Bylaws" shall mean the bylaws promulgated by the Association under this Declaration and the Unit Ownership Act. 1.5 "Common elements" shall mean both general common elements and limited common elements. (a) "General common elements" shall mean those common elements that are for the use of all unit owners and guests of unit owners of the Condominium. Without limiting the foregoing, the general common elements include grounds surrounding the buildings; the land on which the buildings are located; paths, sidewalks, and walkways; any parking spaces not specifically allocated to a particular unit; any irrigation system placed on the property for landscape maintenance; any portions of the buildings designated on the floor plans as common to all units, electrical, gas, telephone, cable, water, and sewer lines and connections serving all of the units; landscaping, plants, and other materials and improvements separate from and outside of the buildings containing the units; and other elements necessary for the safety, maintenance, and existence of the Condominium in which each unit owner shall have a designated percentage of interest, as set forth in Section 4.2. 320 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 2 (b) "Limited common elements" shall mean those common elements that are reserved for the use of fewer than all of the unit owners of the Condominium and their guests, to the exclusion of other unit owners and guests. As to any given unit owner(s), limited common elements shall mean the common elements which are located within or affixed to the building containing the owner's unit, and which are for the use of the unit owners and guests of that unit in which the elements are located or situated on the Condominium's real property. Without limiting the foregoing, the limited common elements include flues, chimneys, ducts, cables, conduits, public utility lines, water, sewer, electrical, gas, cable television lines, hot and cold water pipes (all such utility pipes and lines are limited common elements where they service only one or two units; where they service all units, they shall be general common elements), stairways, balconies, entrances, stoops, furnaces, patios, decks, garages, driveways, boilers, hot water tanks, and fixtures, or other portions of the building servicing only a particular unit or less than all of the units. The percentage of the separate unit's interest in the limited common elements shall be computed by determining the number of units that have use of the limited common elements and dividing that number into the total value of those limited common elements. 1.6 "Common expenses" shall mean: (a) Expenses of administration, maintenance, repair or replacement of general common elements; (b) Expenses agreed upon as common by the Association; and (c) Expenses declared common by the Unit Ownership Act. 1.7 "Declaration" means this document and all parts and exhibits attached thereto or incorporated by reference. 1.8 "Limited expenses" shall mean the expenses attributable to the maintenance, repair and replacement of limited common elements, and are expenses only of the unit owner(s) having or sharing an interest in such limited common elements for which the expenses are accrued. 1.9 "Manager" shall mean the board of directors, manager, management agent, or any other person or group of persons retained or appointed by the Association for the purpose of conducting the day-to-day operations of the Condominium. 1.10 "Mortgage" means a mortgage, a deed of trust, trust indenture, or other, similar form of security instrument. 1.11 "Mortgage" means a beneficiary or holder of a Mortgage 1.12 "Property" shall mean the land, buildings, improvements, and structures thereon, and all easements, rights and appurtenances belonging thereto, which are by this Declaration submitted to the provisions of the Unit Ownership Act. 1.13 "Unit" shall be each separate condominium unit of the Condominium and is a parcel of real property including and containing one or more rooms occupying one or more floors or a part or parts thereof, intended for any type of independent use, and with a direct exit to a public street or highway or to a common area or areas leading to a public street or highway. 1.14 "Unit designation" shall mean the combination of letters, numbers or words that identifies the designated units. 321 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 3 1.15 "Unit owner" shall mean the person or persons owning a fee simple absolute, or one who is a co- owner in any real estate tenancy relationship that is recognized under the laws of the State of Montana, in one or more units of the Condominium. SECTION 2 REAL ESTATE; CONDOMINIUM PROPERTY 2.1 Description. The property that by this Declaration is submitted and subject to the Unit Ownership Act is described as follows: Lot 23 in Block 2 of Baxter Square Subdivision P.U.D. – Phases 1 and 2, City of Bozeman, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder, Gallatin County, Montana. (Plat Reference: J-409) 2.2 Condominium Units. The Condominium units consist of four (4) buildings containing thirteen (13) separate units. Three of the buildings have three units each, and one of the buildings has four units. Each unit has an attached garage. The unit designations shall be by building number (1-4) and letter designation of each unit within a building (e.g. Unit 1A). Each unit, together with the appurtenant undivided interest in the common elements of the Condominium, shall together comprise one condominium unit, shall be inseparable, and may be conveyed, leased, rented, devised or encumbered as a condominium unit. 2.3 Site and Floor Plans. The following exhibits are attached to this Declaration and by this reference are incorporated into and made a part of this Declaration: (a) Exhibit A showing the site plan of the Condominium, the location of the buildings containing the Condominium units on the property, and the location of the Condominium units within the buildings. (b) Exhibit B showing the first floor plan, dimensions, and area for each of the Condominium units in Building 1. (c) Exhibit C showing the second floor plan and dimensions for each of the Condominium units in Building 1. (d) Exhibit D showing the first floor plan, dimensions, and area for each of the Condominium units in Building 2. (e) Exhibit E showing the second floor plan and dimensions for each of the Condominium units in Building 2. (f) Exhibit F showing the first floor plan, dimensions, and area for each of the Condominium units in Building 3. (g) Exhibit G showing the second floor plan and dimensions for each of the Condominium units in Building 3. (h) Exhibit H showing the first floor plan, dimensions, and area for each of the Condominium units in Building 4. (i) Exhibit I showing the second floor plan and dimensions for each of the Condominium units in Building 4. 322 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 4 2.4 Driveways; Parking Areas. The limited common elements for each of the units, except for the four units in Building 1, include two parking spaces on the driveway in front of each garage for automobiles of the respective unit owners. These areas will be initially laid out by the Declarant and shall be assigned to the units in Buildings 2, 3, and 4. The right to use the parking spaces on the driveway in front of the garage for each unit shall be an appurtenance to that unit. There are no other parking spaces within the property. Parking on the common access drives shall be prohibited. 2.5 Walkways. The limited common elements include walkways from each unit's driveway to the front entrance of such unit and back porches. Each unit's walkway and back porch shall be an appurtenance to that unit. 2.6 Unit Boundaries. Each unit shall include the part of the building containing the unit that lies within the boundaries of the unit. The boundaries shall be determined in the following manner: (a) Upper and Lower Boundaries. The upper and lower boundaries of the unit shall be the following boundaries extended to an intersection with the perimetrical boundaries: (i) Upper Boundary–the plane of the lowest surfaces of the upper floor or ceiling joists for all units; (ii) Lower Boundary–the plane of the highest surface of the floor joists. (b) Perimetrical Boundaries. The perimetrical (vertical) boundaries of the unit shall be the following boundaries extended to an intersection with the upper and lower boundaries: (i) Exterior Building Walls. The plane defined by the center points of the exterior walls bounding a unit shall be a perimetrical boundary of that unit. (ii) Interior Building Walls. The plane defined by the center points of the interior walls bounding a unit, extended to an intersection with other perimetrical boundaries, shall be a perimetrical boundary of that unit. Where walls between units are of varying thicknesses, the plane of the boundary shall be the median line drawn between the two outermost boundaries of such wall. (c) Apertures. Where there are openings in any boundary, including without limitation windows, doors, and skylights, the boundaries of the unit shall extend to the most exterior extrusion of the coverings of such openings, and the frameworks thereof. Therefore, windows, doors, screens, and all framings, casings, and hardware therefor, are included within the unit. 2.7 Construction Materials. The principal materials of construction of the units are (i) concrete for the foundations, footings, and slabs; (ii) wood for the framing, structural, and finish work; (iii) plywood for the exterior walls; (iv) sheetrock and composite board for the interior; (v) carpet, wood or tile for the floors; (vi) "Rolex" vented soffit; (vii) "Hardi plank" siding for exterior wall surfaces; (viii) "Miratec" trim; and (ix) asphalt shingles for the roofs of the buildings. SECTION 3 EASEMENTS, COMMON ELEMENTS 3.1 Common Element Easements. A non-exclusive right of ingress, egress, and support through the limited common elements within the buildings is appurtenant to each unit, and all of the general common elements are subject to such rights. 323 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 5 3.2 Utility Easements—Reservation. Easements are reserved through the Condominium property as may be required for utility services, including heat, air conditioning, water, sewer, power, telephone, natural gas, and cable television, in order to serve the Condominium adequately. However, such easements through the units or property shall be according to the plans and specifications for the buildings or as the building is constructed, or as set forth in the recorded plat and other instruments of record, unless approved in writing by the affected unit owner. 3.3 Easement for Inspection, Repair, etc. Each unit may have its air space penetrated by electrical wires and lines, gas lines, mechanical equipment including air handling ducts, hot and cold water lines, waste water lines and vents and other utility and mechanical lines, pipes or equipment. A non-exclusive easement shall exist through, over and across each unit for inspection, installation, maintenance, repair, and replacement of such utility lines and mechanical equipment for the use of all of the unit owners or the unit owners being serviced by the air space being penetrated by such lines and/or equipment to a minimum, ingress and egress for the purpose of such inspection, installation, maintenance, replacement or repair of such easement rights shall only be done under the direction and approval and with the authority of the Association and/or the manager unless an emergency exists in which event any action may reasonably be taken which is justified under the circumstances to minimize damage which would otherwise occur as a consequence of such emergency. 3.4 Right of Access. The Association shall have the irrevocable right, to be exercised by the board of directors or manager, to have access to each unit from time to time during reasonable hours as may be necessary for the maintenance, repair or replacement of any of the limited common elements therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to the general or limited common elements or to any other unit. 3.5 Ingress and Egress. A non-exclusive easement shall exist in favor of each unit owner and occupant, their respective guests, tenants, licensees and invitees for pedestrian traffic over, through, and across sidewalks, streets, paths, walks, and other portion of the common elements as from time to time may be intended and designated for such purpose and use, and for vehicular and pedestrian traffic over, through, and across such portion of the common elements as from time to time may be paved or intended for such purposes, and for purposes of ingress and egress to the public ways. 3.6 Encroachments. If any portion of the common elements encroaches upon a unit or units, a valid easement for the encroachment and for the maintenance of the same, so long as it stands, shall and does exist. If any portion of unit encroaches upon the common elements or upon an adjoining unit or units, a valid easement for the encroachment and for the maintenance of the same, so long as it stands, shall and does exist. Such encroachments and easements shall not be considered or determined to be encumbrances either on the common elements or on the units for the purpose of marketability of title. SECTION 4 OWNERSHIP 4.1 Ownership of Units. Each unit owner shall be entitled to the exclusive ownership, use, and possession of such owner's unit. 4.2 Percentage of Interest in Common Elements. Each unit owner shall have a percentage of undivided interest in the general common elements of the Condominium. This percentage represents the unit owner's interest in the general common elements and the unit owner's liability for common expenses. Declarant has determined that, for the purposes of this Declaration, all of the units are of equal relative value as of completion of construction and filing of the Declaration. Accordingly, the percentage of undivided interest in the general common elements appurtenant to each of the 13 units in the Condominium shall be 7.6923%. 324 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 6 SECTION 5 USE OF CONDOMINIUM PROPERTY 5.1 Use Restrictions. (a) The Condominium units shall be used for residential purposes only, except that an owner or occupant may use a portion of a unit for an office or studio, provided that such uses do not (i) interfere with the quiet enjoyment of any other owner or occupant, (ii) involve customers or clients coming into the Condominium, (iii) require the storage of equipment, products or materials in the unit, and (iv) do not violate the provisions of any applicable laws, regulations or covenants affecting the Condominium property. Notwithstanding the foregoing, nothing shall prohibit a unit owner from leasing or renting such owner's unit to third persons or holding it out for lease or rental, or entering into an agreement or contract with others for the lease or rental of the unit for residential use. However, no unit may be leased for transient or hotel purposes, which shall be defined as rental for any period less than thirty (30) days, or any rental if the units occupants are provided customary hotel services, such as room service for food and beverage, maid service, laundry and linen service or the like. (b) There shall be no obstruction of the common elements nor shall anything be stored in or on the general common elements without the prior written consent of the Association. Owners with units that have usable space in the limited common area beneath the living area of their unit may use this space for storage only if such use does not constitute a hazard to any unit, does not block any access beneath the unit or obstruct any easement for utility service, does not violate any applicable law, regulation or fire code, and does not result in cancellation or rate increase of Association insurance. (c) Nothing shall be done or kept in any unit or in the common elements that will increase the rate of insurance on the building or contents thereof, without the prior written consent of the Association. No owner shall permit anything to be done or kept in the owner's unit or in the common elements that will result in the cancellation of insurance on the building, or contents thereof, or that would be in violation of any law. No waste will be permitted on the common elements. (d) Unit owners shall not cause or permit anything to be hung, affixed or displayed on the outside of windows or placed on the outside walls of a building, and no sign, awning or canopy shall be affixed to or placed upon the exterior walls or roof of any part thereof, without the prior written consent of the Association. Further, Unit owners shall not cause or permit anything to be hung, affixed or displayed on the inside or outside of windows, doors or other apertures that detracts from the exterior uniformity or appearance of the building containing the unit. Items and materials that may not be placed in or on windows, doors, or other apertures include, without limitation, aluminum foil, newspaper, sheets, cardboard, tinted or reflective paint, signs, and neon displays. Materials and equipment used to repair or replace windows, doors, or other apertures shall conform to the style, specifications and quality of the original construction. Unit owners may install screen doors on the entrances to their respective units; provided, however, that such screen doors shall be of the make, model, and specifications set forth in Exhibit "_____". Seasonal decorations that are promptly removed after the season and reasonable nameplates or identification signs for individual units may be allowed. No basketball hoops or other permanent attachments may be made to the exterior of any unit. No other fixtures or attachments shall be permitted on the general or limited common elements. (e) No radio or television antennas, except for satellite dishes as provided below, shall be placed on the buildings or upon any portion of the common elements. Television satellite 325 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 7 dishes may be installed, provided that they are no greater than 18" in overall size and installed in locations that are pre-approved by the Association. (f) No nuisances shall be allowed upon the property nor shall any use or practice be allowed that is a source of annoyance to unit owners or that interferes with the peaceful possession and proper use of the property by its residents. No immoral, improper, offensive or unlawful use shall be made of the property nor any part thereof, and all valid laws, zoning ordinances, and regulations of all governmental bodies having jurisdiction thereof shall be observed. (g) Unit owners and occupants shall comply in all respects with the requirements of covenants, conditions, and restrictions affecting Baxter Square Subdivision P.U.D. – Phases 1 and 2. To the extent applicable to the Property, these covenants, conditions, and restrictions include but are not limited to the following documents filed of record in the office of the Clerk and Recorder, Gallatin County, Montana: [tbd] (h) No unit or driveway shall be used for the storage of any inoperable vehicle, machinery or equipment, or other personal property of any quantity in excess of the immediate needs and personal use of the owner or occupants of a unit. All equipment and vehicles kept on the property, including recreational vehicles, campers, trailers, motor homes, boats, and all other recreational equipment, shall be enclosed in the garage. No one shall reside in such recreational vehicles, motor homes, campers, trailers or other recreational equipment stored on the property. (i) Nothing shall be done in any unit or in, on, or to the common elements which will impair the structural integrity of a building or which would structurally change a building, except as is otherwise provided in this Declaration. (j) No animals of any kind shall be raised, bred, or kept in any unit, except that dogs, cats, and other ordinary, household pets may be kept subject to rules and regulations from time to time adopted by the Association and the Baxter Meadow's Homeowner's Association. All pets shall be subject to all applicable animal control laws and ordinances, including leash laws. Pet owners shall immediately clean up after their pet on Condominium property. No kennels, tethers, exercise lines, or the like shall be permitted in any unit or common element. (k) Nothing shall be altered or constructed in or removed from the common elements, except upon the prior written consent of the Association. (l) No junk, garbage, trash, equipment, parts, metals, lumber, debris or other waste shall be allowed on the sidewalk, entrance or driveway for any unit, or in any of the limited or general common areas. Arranging for curbside trash pickup shall be the responsibility of each unit owner. 5.2. Use of Common Elements. Unit owners may use the general and limited common elements in accordance with the purposes for which they are intended and as they may otherwise agree between themselves, so long as they do not hinder or encroach upon the lawful rights, use, and enjoyment of other unit owners. 326 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 8 SECTION 6 THE ASSOCIATION 6.1 Membership. An owner of a Condominium unit shall automatically become a member of the Association upon acquiring such ownership. An owner shall remain a member of the Association until the owner's unit ownership ceases. The membership shall be limited to unit owners as defined in this Declaration. 6.2 Function. It shall be the function of the Association to: (a) Adopt bylaws for the governance of the Association. (b) Make provisions for the general management of the Condominium and for repairs and maintenance thereto. (c) Levy assessments as provided for in the Declaration, Bylaws, and Unit Ownership Act. (d) Adopt and implement a policy for the affairs of the Condominium. (e) Enter into contracts or hire personnel for the management of the affairs of the Association and the maintenance and repair of the common elements. (f) Be responsible for the perpetual maintenance of the landscaping, irrigation system, common open space, and access drives. 6.3 Limitation on Authority. No single expenditure or debt in excess of $1,000.00 may be made or incurred by the Association or manager without prior approval evidenced by the affirmative vote of unit owners holding seventy-five percent (75%) of the votes attributable to all of the Condominium units. 6.4 Voting Interest. Unless a Condominium unit's vote is expressly excluded in a particular matter by this Declaration, each of the thirteen (13) units of the Condominium shall have one (1) vote on all matters to be decided by the Association. If a unit is owned by more than one person or by an entity, such persons or entity shall appoint a representative to cast the vote for that unit. The unit's vote shall be suspended if no representative is appointed and more than one individual seeks to cast the vote. Except as otherwise provided in the Unit Ownership Act, this Declaration or the Bylaws, a majority of the votes present at any meeting or by proxy shall be sufficient to act on matters brought before the Association. Meetings of the Association shall only be conducted when a quorum is present, as defined in the Bylaws. Declarant shall retain one vote for each unit owned by the Declarant, regardless of whether or not such unit has been constructed or completed. Unit votes may not be split. 6.5 Failure to Comply. Each unit owner shall comply strictly with the provisions of this Declaration, the Bylaws of the Association, and the rules, regulations, decisions, and resolutions of the Association adopted pursuant thereto as the same may be lawfully amended from time to time. Failure to comply with any of the same shall be grounds for an action to recover sums due, for damages or injunctive relief or both, and for reimbursement of all costs, including attorney fees incurred in connection therewith, which action shall be maintainable by the manager in the name of the Association, on behalf of the unit owner, or in the proper case by an aggrieved unit owner. 327 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM.............................................................................................................................PAGE 9 SECTION 7 ASSESSMENTS; LIENS 7.1 Liability for Assessments. (a) Generally. A unit owner, regardless of how title is acquired, shall be liable for all assessments coming due while such person is the unit owner. If a unit is conveyed, the grantee shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor for grantor's share of the common expenses including attorney’s fees and other costs of collection incurred by the Association up to the time of the conveyance, without prejudice to any right the grantee may have to recover from the grantor the amounts paid by the grantee. A prospective purchaser, however, shall be entitled to a statement from the manager or board of directors of the Association, as the case may be, setting forth the amount of said unpaid assessments against the grantor due the Association and such grantee shall not be liable for, nor shall the unit conveyed be subject to a lien for, any unpaid assessments made by the Association against the grantor in excess of the amount therein set forth. (g) Partial Exception for Acquisition by Foreclosure. Where the unit owner obtains title to the unit as the result of foreclosure of a first mortgage, such unit owner, and that owner's successors and assigns, shall not be liable for any of the common expenses chargeable to such unit that became due prior to the unit owner's acquisition of title. Such unpaid share of common expenses shall be a common expense of all the unit owners, including the owner of the unit against which the unpaid common expenses were assessed and that owner's successors and assigns. 7.2 Assessments—Purposes, Procedure. The Association shall levy assessments upon the unit owners in the following manner and for the following reasons: (a) Assessments shall be made as a part of the regular business of the Association at any regular or special meeting thereof as provided in the Bylaws of the Association. Notice of the assessment, amount thereof, and the purpose for which it is made whether regular or special, including an annual budget for expenditures and operation, shall be served on all unit owners affected by delivering a copy of the same to the owner personally or by mailing a copy of the notice to the owners at their addresses of record at least ten (10) days prior to the date for such meeting. (b) Assessments shall be made for the repair, replacement, general maintenance, management, and administration of common elements; fees, costs, and expenses of the manager; taxes, if any, for common areas; and the unit owner's percentage share of any special improvement district assessments. The Association may also levy assessments for payment of Baxter Meadows homeowner's association assessments. Assessments shall be based upon and computed by using the percentage of interest that each unit owner has in the general common elements. (c) Assessments may also be made for the payment of limited common element expenses such that the unit owners are chargeable only for the expenses relating to their respective units or building. Unit owners shall share in the payment for limited expenses for the repair, maintenance, and replacement of limited common elements of their respective units in accordance with the percentage the unit or units have in the limited common elements for which the assessment is being made. If only one unit is associated with the limited common elements involved, then the entire cost of such repair, maintenance or replacement shall be borne by that unit. 328 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 10 (d) Assessments may also be made for any purpose contemplated by this Declaration and for any purpose set out in the Unit Ownership Act. (e) Common expenses and profits, if any, of the condominiums shall be charged to and distributed among the unit owners according to the percentage of undivided interest of each in the common elements. (f) At the time the Association holds its first meeting, or at any duly noticed meeting thereafter, a reserve account may be set up to which initial assessments shall then be deposited, and which assessment shall be a sum that is equal to two times the monthly assessment fee for that year multiplied by the number of units in the project. Said total amount shall then be divided equally among all unit owners. Subject to Section 8.2, if the Declarant still holds title to one or more units it shall pay the amount assessed against each unit so owned. 7.3 Payment of Assessments. (a) Due Date; Delinquency. All assessments shall be due ten (10) days from the date of mailing such assessment following the meeting at which time assessments are levied by the Association, and may be payable in one annual payment or in quarterly installments, at the option of the unit owner. The amount of the general common expenses assessed against each unit, and the amount of limited common expenses assessed against each unit shall be the personal and individual debt of the unit owner. No unit owner shall be exempt from liability for this contribution toward the common expenses by waiver of the use of enjoyment of any of the general common elements or limited common elements or by abandonment of the unit. All assessments that are not paid within thirty (30) days from the date they are due and payable become delinquent and are subject to interest and penalty charges. (b) Collection. The Association or manager shall have the responsibility of taking prompt action to collect any unpaid assessment that becomes delinquent. In the event of delinquency in the payment of the assessment, the unit owner shall be obligated to pay interest at the then current legal rate of interest per annum on the amount of the assessment from the due date thereof, together with all expenses, including attorney fees incurred, together with such interest and late charges as are provided in the Bylaws of the Association. Suit to recover a money judgment for unpaid common expenses and limited expenses may be maintainable without foreclosing or waiving the lien securing the same. 7.4 Liens and Foreclosure. All sums assessed but unpaid for the share of general common expenses and limited common expenses chargeable to any unit shall constitute a lien on such unit superior to all other liens and encumbrances, except only for tax and special assessment liens on the unit in favor of any assessing authority and all sums unpaid on a first mortgage of record. To evidence such lien, the Association shall prepare a written notice of lien assessment setting forth the amount of such unpaid indebtedness, the amount of accrued interest and late charges thereon, the name of the unit owner, and a description of the unit. Such notice shall be signed and verified by one of the officers of the Association or by the manager, or his or her authorized agent, and shall be recorded in the office of the Clerk and Recorder of Gallatin County, Montana. Such lien shall attach from the date of recording such notice. Such lien may be enforced by the foreclosure of the defaulting owner's unit by the Association as provided in the Unit Ownership Act in like manner as foreclosure of a mortgage on real property. In any foreclosure, the unit owner shall be required to pay a reasonable rental for the unit, if so provided in the Bylaws, and the plaintiff in such foreclosure action shall be entitled to the appointment of a receiver to collect the same. Suit to recover a money judgment for unpaid common expenses shall be maintainable without foreclosure or waiving the lien securing the same. In any such proceeding the owner may be 329 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 11 required to pay the costs, expenses, and attorney's fees incurred in filing a lien, and in the event of foreclosure proceedings, additional costs, expenses, and attorney's fees incurred. 7.5 Bidding at Foreclosure Sale. The Association shall have the power to bid on the unit at a foreclosure or other legal sale, and to acquire and hold, lease, mortgage, vote the votes appurtenant to, convey or otherwise deal with the same. Any lienholder holding a lien on a unit may pay, but shall not be required to pay, any unpaid general common expenses or limited common expenses payable with respect to any such unit, and upon such payment such lienholder shall have a lien on said unit for the amounts paid of the same priority as the lien of the lienholder's encumbrance without the necessity of having to file a notice or claim of such lien. SECTION 8 DECLARANT'S RIGHT TO CHANGE 8.1 Alteration of Design and Boundaries. The Declarant reserves the right to change the interior design and arrangement of all units and to alter the boundaries between units, so long as the Declarant owns the units so altered. No such change shall increase the number of units or alter the boundary of the general common elements without an amendment of this Declaration. Until seventy-five percent (75%) of the units have been built and sold, Declarant reserves the right to establish easements, reservations, exceptions, and exclusions consistent with the condominium project. 8.2 Declarant's Rights During Development. Notwithstanding any other provisions expressly or impliedly to the contrary contained in this Declaration or the Bylaws of the Association, Declarant reserves the right to exercise the rights, duties, and functions of the board of directors of the Association until seventy-five percent (75%) of the condominium units have been sold. During the period of development and sale of the remaining condominium units, the monthly assessment for common expenses shall be based upon the estimate of the actual cost thereof, excluding therefrom any estimated amount for contingencies, reserves or sinking funds, and Declarant shall pay Declarant's pro rata share thereof only for those condominium units which have been completed. During the period when fewer than all of the units have been erected, the common expenses shall be allocated among the owners of existing, completed units, and during such period Declarant shall pay the real estate taxes and assessments on that part of the land described in Section 2.1 that remains undeveloped but on which condominium units will be subsequently constructed. SECTION 9 AMENDMENT 9.1 Amendment by Unit Owners. At any regular or special meeting of the Association, such amendment may be proposed as a resolution by any unit owner, the board or manager. Upon adoption of the resolution by a majority of votes present at a meeting or by proxy, the amendment shall be made a subject for consideration at the next succeeding meeting of the Association with notice thereof, together with a copy of the amendment, to be furnished to each owner no later than thirty (30) days in advance of such meeting. At such meeting, the amendment shall be approved upon receiving the favorable vote of seventy-five percent (75%) of the total votes attributable to all of the units. If so approved, it shall be the responsibility of the Association to file the amendment with the Clerk and Recorder's Office of Gallatin County, Montana. 9.2 Amendment by Declarant. Notwithstanding the procedure set forth in Section 9.1, the Declarant may amend this Declaration, or any other Condominium document, prior to any sale or lease of a unit or interest thereof. 330 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 12 SECTION 10 ALTERATIONS, MAINTENANCE AND REPAIRS 10.1 Alterations. The interior plan of a unit may be changed by the owner. The boundaries between units may be changed only by the owners of the units affected. No units may be subdivided (except in accordance with Section 8). No change in the boundaries of units shall encroach upon the boundaries of the common elements. Boundary walls must be equal in quality of design and construction to the existing boundary walls. A change in the boundaries between units shall be set forth in an amendment to this Declaration. In addition to compliance with the provisions of Section 9, such amendment shall further set forth and contain plans for the affected units showing the units after the change in boundaries. The plans shall be drawn by an architect licensed to practice in Montana and attached to the amendment as exhibits, together with the certificate of architect or engineer as required by the Unit Ownership Act. Such an amendment shall be signed and acknowledged by the owners of the affected units, as well as those owners with an interest in any common element affected. The amendment shall also be approved by the board of directors of the Association, and signed and acknowledged by all lienors and mortgagees of the affected units. 10.2 Exterior Alterations. No unit owner may change, alter or remodel the exterior of the unit without the prior written approval of the Association. 10.3 Interior Remodeling. Each unit owner shall have the exclusive right to paint, repaint, tile, wax, paper, panel, carpet, brick or otherwise maintain, refinish, and decorate the inner surfaces of the walls, ceilings, floors, windows, and doors bounding such owner's unit, and the interior thereof, so long as such owner does not affect the structural integrity of the building in which the unit is located. 10.4 Liens for Alterations. Labor performed and materials furnished and incorporated into a unit with the consent of or at the request of the unit owner, or the owner's agent, contractor or subcontractor, shall be the basis for the filing of a lien against the unit of the unit owner consenting to or requesting the same. Each unit owner shall indemnify and hold harmless each of the other owners and the Association from and against all liability (including court costs and attorney fees) arising from the claim of any lien against the unit or any other owner or against the general or limited common elements for construction performed or for labor, materials, services or other products incorporated in the owner's unit at such owner's request. 10.5 Maintenance by Association. The Association shall perform the maintenance, repair, and replacement of all general common elements and Association property, and the cost is a common expense. It is acknowledged that there is a common well and sprinkler system serving the Condominium property, and the Association shall have the responsibility for any required maintenance or repairs of such well and sprinkler system. The board of directors shall arrange for any necessary maintenance of the well and sprinkler system and for care of the lawns and landscaping on the Condominium property. The board of directors shall arrange for removal of snow from all walkways, driveways, sidewalks, and access drives on the Condominium property. The Association shall perform the maintenance, repair, and replacement of all limited common elements, and the cost is a limited expense. 10.6 Damages arising from Maintenance. Damage to the interior or any part of a unit resulting from maintenance, repair, emergency repair or replacement of any of the general or limited common elements, or as a result of an emergency repair within another unit at the instance of the Association, shall be designated either limited or general common expenses by the Association and assessed in accordance with such designation. 10.7 Maintenance by Unit Owners. Each unit owner, at such owner's own expense, shall maintain and keep in good order and repair the interior of the owner's unit. All fixtures and equipment 331 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 13 installed in the unit, commencing at a point where the utilities enter the unit, shall be maintained, kept in repair, and replaced if necessary by the unit owner. An owner shall do no act or any work that will impair the structural soundness or integrity of the building or impair any easement. Each owner shall also keep any balcony, entrance, porch or deck area appurtenant to the owner's unit in a clean and sanitary condition. The right of the each owner to repair, alter, and remodel is coupled with the obligation to replace any finishing or other materials removed with similar type or kinds of materials. All glass replacement shall be with similar quality, shade, and design. No act or alteration, repairing or remodeling by any unit owner shall impair in any way the integrity of the adjoining units or the integrity of limited common elements or general common elements. SECTION 11 INSURANCE 11.1 Purchase. All insurance policies upon the Condominium property shall be purchased by the Association and shall be issued by an insurance company authorized to do business in Montana. (a) Named Insured. The named insured shall be the Association individually and as agent for the unit owners without naming them. Such policies shall provide that payments for losses thereunder by the insurer shall be paid to the insurance trustee hereinafter designated, and all policies and endorsements thereon shall be deposited with the insurance trustee. Unit owners may obtain insurance coverage, at their own expense, upon their own personal property and for their personal liability and living expense. (b) Copies to Mortgagees. The Association shall furnish one copy of each insurance policy and of all endorsements thereon to each mortgagee of a unit owner on request. 11.2 Coverage. (a) Casualty. All buildings and improvements upon the land shall be insured in an amount equal to the full insurable replacement value, and all personal property included in the common elements shall be fully insured, with all such insurance to be based on current replacement value, as determined annually by the board of directors. Such coverage shall afford protection against: (i) Loss or damage by fire and other hazards covered by a standard extended coverage endorsement; and (ii) Such other risks as from time to time shall be customarily covered with respect to buildings similar in construction, location, and use as the building on the land, including but not limited to vandalism and malicious mischief. The policies shall state whether heating, ventilation, air conditioning, other service equipment, interior fixtures, and carpets are included within the coverage in order that unit owners may insure themselves if the items are not insured by the Association. Each unit owner shall be responsible for insuring personal property located within such owner's unit. Each unit owner shall also be responsible for insuring ceiling, floor and wall coverings, electrical fixtures, appliances, air conditioning and heating equipment, water heaters, built- in cabinets, and other improvements to the extent these items are located within the unit boundaries and are not covered by the Association policy. (b) Liability Insurance. The Association shall obtain and maintain public liability insurance covering all of the common elements and Association property and insuring the Association and the unit owners as their interest may appear in such amount and with such coverages and endorsements as the board of directors may deem appropriate. The board of 332 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 14 directors shall have authority to compromise and settle all claims against the Association or upon insurance policies held by the Association. The unit owners shall have no personal liability upon such claims, except as may be otherwise provided by law, and nothing herein contained shall in any way be construed as imposing upon the Association a duty to assess unit owners for the purpose of raising sufficient funds to discharge any liability in excess of insurance coverage. Each unit owner will be responsible for procuring and maintaining liability insurance covering losses that may occur in and about the owner’s unit, as the owner may deem appropriate. (c) Worker’s Compensation. The Association shall obtain and maintain such worker’s compensation coverage as may be required by law. (d) Other Insurance. The Association may obtain and maintain such other insurance as the board of directors may from time to time deem to be necessary or as may be required by applicable law, including but not limited to errors and omissions insurance for officers, directors, and managers, flood insurance, and insurance for the benefit of Association employees. 11.3 Deductible and Other Insurance Features. The board of directors shall establish the amount of the deductible and other features under the insurance policies as it deems desirable and financially expedient in the exercise of its business judgment. 11.4 Premiums. Premiums for insurance policies purchased by the Association shall be paid by the Association as a common expense, except that the amount of increase in the premium occasioned by use, misuse, occupancy or abandonment of a unit or its appurtenances or of the common elements by a unit owner shall be assessed against the owner. Not less than ten (10) days prior to the date when a premium is due, the Association shall furnish evidence of such payment to each mortgagee listed in the roster of mortgagees. 11.5 Insurance Trustee. All insurance policies purchased by the Association shall be for the benefit of the Association and the unit owners and their mortgagees as their interests may appear, and shall provide that all proceeds covering property losses shall be paid to such bank in Montana with trust powers as may be designated as trustee by the board of directors of the Association, which trustee is herein referred to as the insurance trustee. The insurance trustee shall not be liable for payment of premiums, nor for the renewal or the sufficiency of policies, nor for the failure to collect any insurance proceeds. The duty of the insurance trustee shall be to receive such proceeds as are paid and hold the same in trust for the purposes elsewhere stated in this instrument and for the benefit of the unit owners and their mortgagees in the following shares, but which shares need not be set forth on the records of the insurance trustee: (a) Unit owners – An undivided share for each unit owner, such share being the same as the undivided share in the common elements appurtenant to such owner's unit. (b) Mortgagees – If a mortgagee endorsement has been issued as to a unit, the share of the unit owner shall be held in trust for the mortgagee and the unit owner as their interests my appear; provided, however, that no mortgagee shall have any right to determine or participate in the determination as to whether or not any damaged property shall be reconstructed or repaired, and no mortgagee shall have any right to apply or have applied to the reduction of a mortgage debt any insurance proceeds except distributions thereof made to the unit owner and mortgagee pursuant to the provision of this Declaration. 11.6 Distribution of Proceeds. Proceeds of insurance policies received by the insurance trustee shall be distributed to or for the benefit of the beneficial owners in the following manner: 333 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 15 (a) Administration. Expenses of administration, the insurance trustee, and construction or remodeling supervision shall be considered as part of the cost of construction, replacement or repair. (b) Reconstruction or Repair. If the damage for which the proceeds are paid is to be repaired or reconstructed by the Association, the remaining proceeds shall be paid to defray the cost thereof as elsewhere provided. Any proceeds remaining after defraying such costs shall be distributed to the beneficial owners, remittances to unit owners and their mortgagees being payable jointly to them. (c) Failure to Reconstruct or Repair. If it is determined in the manner elsewhere provided that the damage for which the proceeds are paid shall not be reconstructed or repaired, the remaining proceeds shall be distributed to the beneficial owners, remittances to unit owners and their mortgagees being payable jointly to them. (d) Certificate. In making distribution to unit owners and their mortgagees, the insurance trustee may rely upon a certificate from the Association made by its representative or manager as to the names of the unit owners and their respective shares of the distribution. 11.7 Association as Agent. The Association is irrevocably appointed agent for each unit owner and for each owner of a mortgage or other lien upon any unit and for each owner of any other interest in the Condominium property or any property in which the Association owns an interest to adjust all claims arising under insurance policies purchased by the Association and to execute and deliver releases upon the payment of claims. 11.8 Benefit to Mortgagees. Certain provisions in this Section 11 are for the benefit of mortgagees of Condominium parcels, and all such provisions are covenants for the benefit of any mortgagee of a unit and may be enforced by such mortgagee. SECTION 12 RECONSTRUCTION AFTER CASUALTY. 12.1 Reconstruction (a) Repair After Casualty. If any part of the condominium property shall be damaged by casualty, the decision regarding whether or not it shall be reconstructed or repaired shall be made in the following manner: (i) Lesser Damage. If a unit or units are found by the board of directors of the Association to be tenantable after the casualty, the damaged property shall be repaired. (ii) Greater Damage. If a unit or units are found by the board of directors to be not tenantable after the casualty, the damaged property shall be reconstructed or rebuilt. (iii) Certificate. The insurance trustee may rely upon a certificate of the Association made by its president and secretary to determine whether or not the damaged property is to be reconstructed or repaired. (b) Plans and Specifications. Any reconstruction or repair must be substantially in accordance with the plans and specifications for the original improvements, or if not, then according to plans and specifications approved by the board of directors and by the affirmative vote of the unit owners holding at least seventy-five percent (75%) of the votes attributable to all Condominium units, including the owners of all units affected by the changed plans and specifications. Any such reconstruction not in accordance with the original plans and 334 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 16 specifications must be set forth in an amendment to the Declaration, which amendment shall be prepared and filed of record in accordance with the provisions of such amended filing, more particularly set forth in Section 9. (c) Responsibility. The responsibility for reconstruction or repair after casualty shall be the same as for maintenance and repair of the Condominium property, and the Association shall work with the insurance trustee to carry out the provisions of this Section 12. (d) Assessments. If the proceeds of insurance are not sufficient to defray the estimated costs of reconstruction or repair for which the Association is responsible, or if at any time during such reconstruction or repair, or upon completion of such reconstruction or repair, the funds for the payment of the costs thereof are insufficient, assessments shall be made against all unit owners in sufficient amounts to provide funds to the payment of such costs. Such assessments shall be in proportion to the owner's percentage of interest in the general common elements. (e) Construction Funds. The funds for payment of costs of reconstruction or repair after casualty, which shall consist of proceeds of insurance held by the insurance trustee and funds collected by the Association from assessments against unit owners, shall be disbursed in the sound discretion of the trustee and according to the contract of reconstruction or repair, which contract must have the approval of the board of directors and the unit owners involved. (f) Surplus. It shall be presumed that the first monies disbursed in payment of costs of reconstruction and repair shall be from the insurance proceeds. If there is a balance in a construction fund after payment of all costs of the reconstruction and repair for which the fund is established, such balance shall be paid to the Association for the use and benefit of the unit owners. SECTION 13 REMOVAL OR PARTITION; SUBDIVISION 13.1 Procedure for Removal or Partition. The Condominium may be removed from condominium ownership, and may be partitioned or sold, only upon compliance with each of the conditions hereof: (a) The board of directors of the Association must approve the plans of removal, partition or sale, including the details of how any partition or sale, and the distribution of property or funds, shall be accomplished. (b) The plan of removal, partition or sale must be approved as provided in the Montana Unit Ownership Act. If approval for removal, partition or sale is not required by the Unit Ownership Act, then approval shall be evidenced by the affirmative vote of at least seventy-five percent (75%) of the votes attributable to all Condominium units. Upon obtaining such approval, the board of directors shall be empowered to implement and carry out the plan of removal, partition or sale. The common elements of the Condominium shall not be abandoned, partitioned, subdivided, encumbered, sold or transferred by removal or partition without compliance with all of the above requirements. 13.2 Subdivision Prohibited. No unit may be divided or subdivided into a smaller unit, nor may any portion thereof sold or otherwise transferred, except as otherwise expressly provided in this Declaration. 335 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 17 13.3 Application of Section. This Section 13 shall not apply to the sale of individual units and shall not be construed to create a right of first refusal. SECTION 14 MISCELLANEOUS 14.1 Covenants to Run with Land. The provisions of this Declaration and the Bylaws shall be construed to be covenants running with the land, and shall include every unit and shall be binding upon the unit owners, their heirs, successors, nominees, personal representatives, and assigns for as long as this Declaration and the Bylaws are in effect. 14.2 Service of Process. The name and address of the person to receive service of process for the Condominium and Association until another designation is filed of record shall be: Dominic M. Palmer 2050 Fairway Drive PO Box 1701 Bozeman, Montana 59771-1701 14.3 Disclaimer. Except as expressly provided in this Declaration, the Bylaws, or in agreements or instruments pertaining to conveyance of the units, Declarant does not intend by this Declaration to make, and hereby expressly negates and disclaims, any warranties and representations regarding the value, nature, quality, physical condition, suitability, compliance with laws or any other aspect of the Condominium property or the units. Estimates of common expenses made by Declarant are reasonably believed to be accurate at the time they are made, but Declarant makes no warranty or representation that such estimates are either correct or may be relied upon by any person 14.4 Remedies. The remedies provided in this Declaration and the Bylaws shall not be exclusive of any other remedies that may now or in the future be available to the parties as provided for by law. 14.5 Severability. The provisions of this Declaration shall be deemed independent and severable, and the invalidity, partial invalidity or unenforceability of any one or more provisions shall not affect the validity or enforceability of any other provision. 14.6 Binding Effect. Except as otherwise provided, this Declaration shall be binding upon and shall inure to the benefit of the Declarant, the Association and each unit owner, and the heirs, personal representatives, nominees, successors and assigns of each. 14.7 Interpretation. The provisions of the Declaration and of the Bylaws to be promulgated and recorded herewith, shall be liberally construed to effectuate the intent and purpose of the Declaration, Bylaws, and Unit Ownership Act. 14.8 Captions. The captions, titles, and section headings throughout this Declaration are for convenience and reference only and shall not be deemed or held to explain, modify, amplify or aid in the interpretation, construction or meaning or the provisions of this Declaration nor to define, limit or describe the scope or intent of a particular section. 14.9 Nondiscrimination. There shall be no limitation upon sale, lease or occupancy of any unit based upon race, creed, color, sex, religion, national origin, handicap or familial status. The Association may make reasonable accommodations, including reasonable waiver of the covenants and restrictions of this Declaration, when necessary to afford handicapped individuals the opportunity to enjoy the Condominium property. 336 DECLARATION FOR WOODHAVEN VILLAGE CONDOMINIUM...........................................................................................................................PAGE 18 IN WITNESS WHEREOF, the Declarant has caused this Declaration to be made and executed according to the provisions of the Unit Ownership Act, Title 70, Section 23, Montana Code Annotated. D & D Palmer, LLC, a Montana limited liability company. by:___________________________________ Dominic M. Palmer, Member STATE OF MONTANA ) : ss. County of Gallatin ) This instrument was acknowledged before me on _________________, 2007, by Dominic M. Palmer as a member of D & D Palmer, LLC, a Montana limited liability company. __________________________________________ Printed Name: ______________________________ NOTARY PUBLIC for the State of Montana RESIDING AT _________________, Montana [Seal] My Commission Expires ____________, 20___ 337