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HomeMy WebLinkAbout14- DA Land Company, LLC Findings of Fact City of Bozeman-City Clem P.O. Box 1 230 Bozeman, MT 59771-1230 2482079 Page: 1 of 22 05/29/2014 04:05:53 PM Fee: $154.00 Charlotte Mills - Gallatin County, MT MISC 1111111111111111111111111111111 IIIT 1111I II I III 11111 IIIIIII IIII IIIILII 111 IIII BEFORE THE BOZEMAN CITY COMMISSION IN THE MATTER.OF THE APPLICATION OF DA LAND COMPANY, LLCFOR PRELIMINARY PLAT REVIEW OF THE AMENDED PLAT OF FINDING OF FACT MEADOW CREEK PHASE 1 MAJOR SUBDIVISION AND WITH VARIANCE FROM REQUIRED WETLANDS ORDER SETBACKS, CITY OF BOZEMAN, GALLATIN COUNTY, MONTANA PURSUANT to the Montana Subdivision and Platting Act, Section 7643-101 through 76- 3-625, Montana Codes Annotated, City of Bozeman Growth Policy, and the Bozeman Unified Development Code, public hearings were scheduled, after notice given, before the Bozeman Wetlands Review Board on January 10, 2014, Bozeman City Planning Beard on February 18, 2014, and before the Bozeman City Commission on March 3, 2014, on the above-entitled application. The applicant presented to the City Commission a proposed preliminary plat to subdivide 13 existing lots containing 10.45 acres to create 42 single household residential lots. The purpose of the public hearings was to consider all relevant evidence relating to public health, safety, and welfare, including the required supplemental information, recommendation of the Wetlands Review Board, and recommendation of the Bozeman City Planning Board to determine whether the plat should be approved, conditionally approved, or disapproved. It appeared to the City Commission that all parties and the public wishing to appear and comment were given the opportunity to do so, and therefore, being fully advised of all matters having come before it regarding this application, the City Commission makes the following Findings of Fact, as required: A111ended Plat ofMeadow 0-eek Phase 1 Major Subdivisiol►— Findings of t=act and Order 1 FINDINGS OF FACT I. The application for the preliminary plat review of the Amended Plat of Meadow Creek Phase I Major Subdivision was submitted to the City of Bozeman Department of Community Development on December 17, 2013 6, 2013. On January 6, 2014 the application was deemed acceptable for initial review pursuant to Title 38 of the Bozeman Municipal Code (BMC), The preliminary subdivision plat, as proposed, will subdivide 10.45 acres and create a major subdivision containing 42 single household residential lots for development with associated open space and rights of way. The subject property is legally described as described as the Amended Plat of Lots 8-15, Block 5 & Lots 14-18, Block 9, Meadow Creek Subdivision Phase I located in the Southeast One-Quarter (SE 1/4) of Section 23, Township Two South (T2S), Range Five East (R5E), P.M.M. Gallatin County. The project is generally located at the intersection of Goldeneye Drive and South 27"'Avenue. A notice of public hearing before the City of Bozeman City Commission was published in the Bozeman Daily Chronicle on Sunday, February 2, 2014. The site was posted with a public notice on January 30, 2014 Public notice was sent to adjacent property owners via certified mail, return receipt requested, and to all other property owners of record within 200 feet of the subject property via first class mail, on January 30, 2014, Ill. The Department of Community Development Staff reviewed the project and the evidence which justified the imposition of conditions, recommendations of the Development Review Committee and local review agencies and the design of the major subdivision, zoning, existing infrastructure,physical features, and variance request. The Department of Community Development Staff reported that one public comment had been received prior to the hearing in response to the noticing on the matter of this preliminary plat application and was entered into the record. IV. Pursuant to the review authority established by Section 38.34.010, Bozeman Municipal Code (BMC), the Recreation and Parks Advisory Board (RPAB)) met on January 3, 2014 to Amended Plat of Meadow Creek Phase IMajor Subdivision—Findings of Fact and Order 2 consider the proposed recreation and park plan. The Board considered that the proposed plan is within a previously platted subdivision with developed parks (Lerner and Ainsworth Parks) that meet the dedication requirement. The only change to the original approved plat is that some multi-household lots are to be built as single-household units. This will create 42 dwelling units as opposed to the originally planned 89. In addition, the net result of this reduction of dwelling units would be a reduction of the impact on the parks and the new lots will contribute to park maintenance by joining the existing HOA. Therefore, the RPAB found that the Amended Plat of Meadow Creek subdivision would not have adverse park implications with this request and recommend approval. V. Pursuant to the review authority established by Section 38,34.010, Bozeman Municipal Code (BMC), the Wetlands Review Board (WRB) met on January 10, 2014 to review wetland related submittal materials, prepare functional assessments of regulated wetlands that may be impacted by proposed regulated activities, evaluate the impacts proposed regulated activities may have on delineated wetlands and to provide wetlands protection, mitigation and/or enhancement recommendations regarding such proposals. Based on the information provided by the applicant, comments received from Clint Litle, P.E., DOWL HKM the WRB assessed the condition of the wetlands and the existing conditions on the subject property. The WRB considered the slope, existing vegetation, surrounding typography, proximity to hydrologic features and the intent of the Regulations and location of the development in their discussion. The WRB was supportive of the variance request. The Board found the proposed encroachment to be reasonable while insuring adequate separation between human activity and the wetlands. The Board continued by stating it appeared the Applicant provided the additional information requested during the Pre-Application review necessary for the Board to perform an adequate review of the project and provide the Commission a positive recommendation on the project. In conclusion the WRB moved and unanimously recommended granting the variance request from Section 3 8.23.100, BMC, wetland setback requirements. V1. The matter of the preliminary plat application for the Amended Plat of Meadow Creek Phase I Major Subdivision was considered by the City Commission at a public hearing on March Aiiieiided Plat of Meadow Creek Pliase IMajor Subdivision—Ffiidiiigs of Fact and Order 3 3, 2014 at which time the Department of Community Development Staff reviewed the project and forwarded the Wetlands Review Board's recommendation of conditional approval of the variance request. Clint Litle, P.E., DOWL HKM., representing DA Land Company, LLC, discussed and summarized the design of the subdivision, the wetland setback request, access, storm water retention, their intent to join the existing Meadow Creek Home Owners Association and pay their pro-rata share of all ongoing park and open space maintenance dues and indicated the applicant's agreement with the recommended conditions of approval. VII. The public hearing portion was then opened to hear public testimony on the matter of the preliminary plat application. One member of the general public, the president of the Meadow Creek Home Owners Association (1-10A), commented on the project. Comments were supportive of the subdivision focusing on a an HOA covenant requiring prior approval of the HOA for further subdivision of any existing lot, storm water management, and double frontage of lots between Road A and South 27"' Avenue. Seeing no further public testimony, the City Commission then closed the public comment portion on the matter of the preliminary plat application. Vill. The City Commission then considered the minutes of the Wetlands Review Board meeting, Recreation and Parks Advisory Board, Department of Community Development staff report, public record, the applicant's testimony, and weighed the proposed subdivision against the primary criteria for consideration of subdivisions established in 76-3-608, MCA and found as follows: A. Primary Review Criteria 1. Effects on Agriculture The subject property is designated as a residential area according to the City of Bozeman Community Plan. The area is zoned for residential development has previously undergone subdivision review and approval and has begun to be developed. Therefore, this subsequent subdivision will not have adverse effects on agriculture. 2. Effects on Agricultural Water User Facilities As noted under the effects on agriculture above the subject property is designated as a residential area according to the City of Bozeman Community Plan, the area is zoned for residential development, has previously undergone subdivision review and approval, and has begun to be Amended Plat of Meadow Creek Phase I Major Subdivision -Findings of Fact and Order 4 developed, maintaining functional agricultural water user facilities to convey water rights for functional purpose is required. Staff solicited comment from the Middle Creek Ditch Company (MCDC) to assess whether or not subdivision may cause harm to these facilities. In a letter dated January 21, 2014 MCDC submitted comments and provided suggested mitigation to ensure no adverse effects were generated by this subdivision. As a result the Applicants representative responded by suggesting Conditions of Approval be included to ensure any impacts are mitigated. The original Meadow Creek Phase I Subdivision provided all necessary easements for conveyance and ongoing maintenance and rerouted a ditch to flow due north parallel to South 27"' Avenue, then easterly parallel to Graff Street. In addition, the original subdivision required a statement that the plat must contain a notation stating that all downstream water user facilities will not be impacted by this subdivision and that it also be noted accordingly in the by-laws and protective covenants of the homeowners' association. To fully comply with State Law and to mitigate impacts Condition 13 perpetuates this requirement. Therefore, the proposed subdivision will have minimal impacts on agricultural water user facilities. 3. Effects on Local Services Water/Sewer — Municipal water and sewer mains exist in the adjacent street right-of-ways. Additional water and sewer mains will be installed in Road "N' right-of-way to provide service for each new lot. Each lot will connect to the newly constructed water and sewer mains designed to the appropriate design standard shall be located in the standard location as approved by the water/sewer superintendent. The proposed density is less than was previously approved for the site therefore, little if any additional impacts on local services will be caused by this subdivision. Streets — The Development Review Committee has determined that the adjacent streets have capacity to accommodate this development. Following new water and service line installations to accommodate the new lots/development, all street improvements will be constructed to acceptable City standards with curb, gutter, pavement, boulevard sidewalks and storm water facilities. Police/Fire — The property is located within the City's Police and Fire emergency response area. The subdivider must obtain addresses for the new lots from the City Engineer's Office prior to filing the final plat to facilitate emergency response to the site. Stormwater - The standard requirement for a detailed review of the final grading and drainage plan, and approval by the City Engineer, will be required as part of the infrastructure plan and specification review process as part of the site plan for this development. Specific locations for storm water areas are show on the face of the plat. Parklands - The applicant proposed utilizing previously dedicated parkland credits from the original Meadow Creek Subdivision to meet Section 38.27, BMC. The Amended Plat of Meadow Creek Subdivision (APMC) had an original park allocation by Meadow Creek Phase I Subdivision of 89 dwelling units or 2.67-acres of park. APMC proposes 42 dwelling units or 1.26- acres, or a reduction of 1.41-acres of park, Meadow Creek Phase I Subdivision dedicated two park areas; Leer Park and Ainsworth Park (Applicant Submittal, Figure 16-1). Based on the final plat for Meadow Creek Phase I Subdivision (Applicant Submittal, Figures 16-2.1 & 16-2.2) these parks have 11.809-acres of dedicated parkland credit. Both parks have been improved per the Meadow Creek Master Park Plan, April 19, 2006, as documented by the aerial images shown on Applicant Submittal, Figures Aineilded Plat of Meadow Creek Phase I MaJor Subdivision—Fhidiiigs of Fact and Order 5 16-3.1 & 16-3.2. DOWL HKM also inventoried actual built dwelling units to planned (Figure 16-4) and found that new maximum density of Meadow Creek Phase I Subdivision to be 365 units. This count was conservative for the count assumed any vacant lot would use the maximum planned density, where the built lots have been consistently to lower density. The aforementioned figures are within the Parks and Recreation Facilities document forwarded with this report. The Recreation and Parks Advisory Board subdivision reviewed the proposed on January 3, 2014. The Board considered that the proposed is within a previously platted subdivision with developed parks (Lerner and Ainsworth Parks) that meet the dedication requirement. The only change to the original approved plat is that some multi-family lots are to be built as single-family units. This will create 42 dwelling units as opposed to the originally planned 89. In addition, the net result of this is reduction of dwelling units would be a reduction of the impact on the parks and the new lots would contribute to park maintenance by joining the existing FIOA. The RPAB found that the Amended Plat of Meadow Creek subdivision would not have adverse park implications with this request and recommend approval. 4. Effects on the Natural Environment No significant physical or topographical features have been identified, (e.g., outcroppings, geological formations, steep slopes), on the subject property. Provisions will be made to address the control of noxious weeds and maintenance of the property and will be further addressed by inclusion in the existing protective covenants and compliance with the recommended conditions of approval. In addition, there is ongoing performance measure required with the Weed Management Plan to insure control of noxious weeds on site. 5. Effects on Wildlife and Wildlife Habitat The further subdivision of the existing lots will have minimal impacts on wildlife and wildlife habitat, The impacts to the more important habitat areas were addressed and mitigated during the review of the Meadow Creek Phase 1 subdivision and are preserved as open space and parklands. Finally,the project is in a developing area identified for development. 6. Effects on Public Health and Safety The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the public health, safety and general welfare. The subdivision has been reviewed by the Development Review Committee which has determined that it is in general compliance with the title. Any other conditions deemed necessary to ensure compliance were noted within the staff report. All subdivisions must be reviewed against the criteria listed in 76-3-608.3.b-d, Mont. Code Ann. As a result, the Department of Community Development reviewed the preliminary plat against the listed criteria and further provided the following summary review: B. Compliance with survey requirements provided in Part 4 of the Montana Subdivision and Platting Act The property in question has been surveyed and platted in conformance with the Montana Subdivision and Platting Act and prepared as a preliminary plat in accordance with the State statute and the Bozeman Municipal Code. Prior to filing of any plat(s) for this subdivision, said plat(s) must comply with the survey requirements in Part 4 of the Montana Subdivision and Amended Plat of Meadow Creek Phase 1 Major Subdivision—Findings of Fact and Order 6 Platting Act and will be filed in the Gallatin County Clerk & Recorder's Office upon review and approval by City staff. C. Compliance with the local subdivision regulations provided for in Part 5 of the Montana Subdivision and Platting Act The final plat shall comply with the standards identified and referenced in the Unified Development Code (UDC). The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as a condition 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 requirements are standards of the UDC and shall be addressed with the final plat application: a. Pursuant to Section 38.03.040.A of the BMC, conditional approval of the preliminary plat shall be in force for not more than one calendar year for minor subdivisions, two years for single-phased major subdivisions and three years for multi-phased major subdivisions. As a single phase major subdivision, conditional approval of the preliminary plat for the Amended Plat of Lots 8-15, Block 5 & Lots 14-18, Block 9, Meadow Creek Subdivision shall in be force for two (2) years. Prior to that expiration date, the developer may submit a letter of request for the extension of the period to the Community Development Director with each request considered on its individual merits and consideration of the criteria provided in 38.03.040.A. b. Per Section 38.02.050, BMC "Disposition of Water Rights" - Water rights, or cash-in-lieu thereof, as calculated by the Director of Public Service, is due with the filing of each subdivision final plat. c. Per Section 38.23,150, BMC "Lighting" — the SLID for all local subdivision streets shall be updated to include all new lighting. A lighting plan shall be submitted for review and approval prior to the contracting, creation of an SLID and installation of the lights. The plan shall include a pole light detail with spacing based on high pedestrian conflict, a local street pole light at one per local street intersection, and a bollard light detail for placement at pathway/street intersections. All lights including the bollard light shall conform to the City's requirement for cut-off shields. d. Pursuant to Section 38.21.060.C.1, BMC "Comer Lots" — The property owner's association documents shall provide language stating that all comer lots shall have the same orientation as dwellings on lots on the interior of the block. The final plat shall indicate the orientation of all comer lots. e. Pursuant to Section 38.23.030.D, BMC, comer lots shall have sufficient width to permit appropriate building setbacks from both streets and provide acceptable visibility for traffic safety. Further, homes on comer lots shall have the same orientation as homes on lots on the interior of the block, unless otherwise approved through an overall development plan. Covenants shall contain information regarding the orientation for all comer lots. The preliminary plat shall indicate the orientation of all comer lots. f. Pursuant to Section 38.23.050, BMC "Utilities" - Utilities shall be placed underground, wherever technically and economically feasible. If overhead utility lines are used, they shall be placed along the rear property line. Airiended Plat of Meadow Creek Pliase 1 Major Subdivision—Fitidiiigs of Fact and Order 7 g. Pursuant to Section 38.23.120, BMC - If mail will not be delivered to each individual lot within the development, the developer shall provide an off-street area for mail delivery within the development in cooperation with the United States Postal Service. All cluster mail boxes must be ADA accessible and placed accordingly. It shall not be the responsibility of the City to maintain or plan any mail delivery area constructed within a City right-of-way. h. Pursuant to Section 38.25.020.A, BMC "Parking Dimensions" — The homeowners' association documents shall include language stating the minimum provisions for one-stall and two-stall vehicle garages as outlined by Section 38.25.020.A, BMC. i. Pursuant to Section 38.26.050.E, BMC "Street, Frontage' — The homeowner's association documents shall contain language stating that all street rights-of-way contiguous to or within the proposed development site not used for street pavement, curbs, gutters, sidewalks or driveways (i.e., street boulevards) shall be landscaped, as defined in the Bozeman Municipal Code, and shall include one (1) large canopy tree for each 50 feet of total street frontage rounded to the nearest whole number. For street trees, a City of Bozeman planting permit for street trees and obtaining utility locations before any excavation begins in the City of Bozeman right-of-way. The covenants shall include a planting note stating that the planting hole shall be at least twice the diameter of the root ball, that the root flare of the newly planted tree is visible and above ground, and there shall be a mulch ring 3'- 4' in diameter around each newly planted boulevard tree. j Pursuant to Section 38.39.030.B.2, BMC "Sidewalks" — The final plat and homeowner's ,association documcnts shall include language stating that "upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who has not constructed said sidewalk shall, without further notice, construct within. 30 days, said sidewalk for their lot(s), regardless of whether other improvements have been made upon the lot. k. Pursuant to Section 38.26.070, BMC "Landscaping of Public Lands" - Requires the subdivider to install irrigation, turf grass and street trees on the portions of open space and parkland adjacent to public streets. 'Trees may not be located within 10 feet of sewer and water services. Sewer and water services shall be shown on the landscaping plan of the park and open space plan, and be approved by the Water/Sewer Superintendent. A landscape plan prepared by a certified nurseryperson shall be submitted, identifying the location and tree species to be installed by the developer, prior to installation of the trees or prior to final plat approval, whichever comes first. 1. Per Section 38,23.080.G, BMC "Finish Grade" - All finish grades in landscaped areas shall comply with the provisions set forth in Section 38.26.050.L. in. Per Section 38.23.080.H "Landscape Amenities" - Stormwater retention/detention facilities in landscaped areas shall be designed as landscape amenities. They shall be an organic feature with a natural, curvilinear shape. The facilities shall have 75 percent of surface area covered with live vegetation appropriate for the depth and design of the retention/detention facility, and be lined with native grasses, indigenous plants, wet root tolerant plant types and groupings of boulders to create a functional yet, natural site feature. A visual inspection notes that some of the stormwater facilities do not copy with this section including the 25% maximum slope. Amended Plat of MeadoNv Creek Phase I Major Subdivision—Findings of Fact and Order 8 n. Pursuant to Section 38.27.090, BMC "Waiver of Park Maintenance District — Prior to final plat approval, executed waivers of right to protest the creation of special improvement districts (STDs) for a park maintenance district will be required to be filed .and of record with the Gallatin County Clerk and Recorder, unless already previously filed. o. Pursuant to Section 38.38.030, BMC "Covenants" - Covenants, restrictions, and articles of incorporation for the creation of a property owners' association shall be submitted with the final plat application for review and approval by the Planning Office and shall contain, but not be limited to the following items: 1) the orientation and setbacks for corner lots, 2) all additional setbacks required when lots are adjacent to pathway corridors and minor arterial roads, 3) provisions for fences, 4) provisions for snow removal, maintenance and upkeep of all common areas, public and private parks, trails, storm water runoff facilities, 5) guidelines that outline architectural and landscape requirements for each individual lot and/or phase of the subdivision, including placement of boulevard trees at a regular spacing for each residential lot, 6) provisions that outline the renewal of an annual contract with a certified landscape nursery person for the upkeep and maintenance of all parklands, common open space, trails, etc., 7) landscape details for detention ponds, outlet structures, boulevard trees, parkland, irrigation, etc., 8) mitigation of groundwater with established floor elevations and "no basement restriction", 9) architectural guidelines for residential character, porches, fenestration treatment, placement of garages, boulevard trees, 10) noxious weed control, 11) parking within residential structures, and 12) assessment of existing and future Special Improvement Districts. These documents shall be submitted to the city attorney and shall not be accepted by the City until approved as to legal form and effect. A draft of these documents must be submitted for review and approval by the Community Development Department at least 30 working days prior to submitting a final plat application. These documents shall be executed and submitted with the initial final plat to be filed with the Gallatin County Clerk and Recorder at the time of final plat recordation. p. Pursuant to Section 38.39.030, BMC "Completion of Improvements" - If it is the developer's intent to file the plat prior to the completion of all required improvements, an Improvements Agreement shall be entered into with the City of Bozeman guaranteeing the completion of all improvements in accordance with the preliminary plat submittal information and conditions of approval. If the final plat is filed prior to the installation of all improvements, the developer shall supply the City of Bozeman with an acceptable method of security equal to 150 percent of the cost of the remaining improvements. q. Final plats shall contain the applicable language for all certificates listed in Sections 38.06.020 through 38.06.110. Pursuant to Section 38.41.070 a final subdivision plat may not be approved by the city unless all certificates, with the exception of the director of public works and the county clerk and recorder, have been complied with, signed and notarized and all subdivision regulation and conditions of preliminary plat approval have been met. Amended Plat of Meadow Creek Phase 1 Major Subdivision--Findings of Fact and Order 9 D. Compliance with the local subdivision review procedures provided in Part 6 of the Montana Subdivision and Platting Act A subdivision pre-application was submitted on August 23, 2013. The pre-application was reviewed by the DRC on September 25, 2013 and summary review comments were forwarded to the applicant in preparation of the preliminary plat application and granted numerous supplemental information waivers under 38.41.060, BMC. A complete preliminary plat application was submitted on December 17, 2013 and deemed acceptable for initial review after additional information was provided January 6, 2014. The preliminary plat was reviewed by the DRC on January 15, 22, and 29, 2014. On January 24, 2014 the DRC, WRB, and Staff determined the submittal contained detailed, supporting information that is sufficient to allow for the review of the proposed subdivision. On January 11, 2014 the Wetlands Review Board met and considered the Applicant's request for a variance from wetlands setback requirements. Both the W.R.B. and the D.R.C. provided favorable recommendation was forwarded for consideration by the City Commission. Public notice for this application was placed in the Bozeman Daily Chronicle on Sunday, February 2, 2014. The site was posted with a public notice on January 31, 2014. Public notice was sent to adjacent property owners via certified mail, and to all other property owners of record within 200 feet of the subject property via first class mail, on January 31, 2014. One comment email was received by the Community Development Department on February 6, 2014. The comment letter is summarized in the Planning Board resolution. On February 13, 2014 this subdivision staff report was drafted and forwarded with a recommendation of conditional approval by the Planning Director for consideration by the Bozeman Planning Board and City Commission. The Planning Board considered the application on February 18, 2014. The City Commission made a final decision at their March 3, 2014 public hearing. The final decision for a Major Subdivision Preliminary Plat must be made within 60 working days of the date it was deemed complete or in this case by April 21, 2014. E. Provision for casements for the location and installation of any planned utilities All utilities and necessary utility easements will be provided and depicted accordingly on the final plat. F. Provisions of legal and physical access to each parcel All of the proposed lots have frontage to Road "A", Goldeneye Drive, or Durk Drive with lot frontage meeting minimum standard shown on the preliminary plat. In addition, a one foot no access strip shall be placed along the southern boundary of any lots that abut South 27"' Avenue to prohibit direct access to this arterial roadway pursuant to Section 38.24.090, BMC. ix. The City Commission considered the Applicant's request for a variance from Section 38.23.100.A, BMC, wetlands setbacks requirements. The criteria for granting zoning variances under Section 38.35.060 apply. In acting on an application for a variance, the review authority Ainended Plat of Meadow Creek Pliase 1 Major Subdivision—Findings of Fact acid Order 10 shall designate such lawful conditions as will secure substantial protection for the public health, safety and general welfare, and shall issue written decisions setting forth factual evidence that the variance meets the standards of MCA 76-2-323 in that the variance: 1. Will not be contrary to and will serve the public interest; , The Commission found there was sufficient supporting evidence and documentation to grant the variance request. The Applicant provided detailed and supporting evidence to show the public interest would be served in Appendix I of the Applicant Submittal. Specifically, the Commission found there is no change to the exterior boundary of the proposed subdivision from the original Meadow Creek Subdivision boundary, Subsequently, a wetland mitigation area was constructed after the initial development of Meadow Creek Phase 1 Subdivision which was constructed too close to the property line and with an irregular boundary. The proximity of the constructed wetland created the situation necessitating the request from wetland setback requirements. The variance request only applies to Lots 7 — 10 in Block 1. The minimum requested setback is 35.3 feet with an average along Lots 7 — 10 of approximately 45 feet. The proposed variance meets the intent of the existing ordinance and is not contrary to public interest. The variance maintains the current wetland buffer between the mitigated wetlands and the gravel trail and serves the public interest by the continued utilization of the existing gravel trail. The existing gravel trail provides a defined topographic boundary between the single-family lots and the wetland buffer. Where practical the 50' setback has been provided, with an average setback width of 45'. As shown on the submitted materials the gravel trail has been constructed parallel to the east property line of the project within the adjoining open space. This trail was constructed several years ago by the Meadow Creek Phase I Subdivision. The trail is well established and is a permitted use within Zone 2 of the setback per Section 38.23.100(2.)(e.), BMC. The intent of allowing the trail within the setback is that it provides a defined boundary between the upland and wetland areas. The trail is proposed to be left "as is" and will serve as the general topographic boundary between the home and the wetland areas. Finally, Section 38.08.050, BMC, requires an additional 20 foot rear yard setback between the property line and any structure. Therefore, granting the variance will not be contrary to and will serve the public interest. Amended Plat of Meadow Creek Phase 1 Magor Subdivision—Findings of Fact and Order I I Finally, the Commission considered the recommendation from the DRC and WRB and adopted their findings and recommendations which included conditions of approval to modify the Applicant's requested setback to better mitigate impacts on the wetlands and employ Best Management Practice during construction activities and identify the setback area on the face of the plat ameliorated any remaining concerns that the proposed subdivision will cause adverse impacts on the wetlands. 2. Is necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this chapter; The Commission found the need for the requested variance is unique to the property due to the shape of the property, proximity to a water course and a wetland mitigation area installed by a third party prior to ownership by the applicant. The mitigation area was permitted and installed after the platting of the Meadow Creek Phase 1 Subdivision. The construction of the mitigation area was installed too close to the property line so that a 50' buffer encroached onto the property boundary. The shape of the property influences the width of the existing property resulting that if a full width wetland setback (50') is applied it will adversely affect lot depth verses the requested buffer width of 35' (minimum) which will allow a more typical lot depth of approximately 100'. The area immediately adjacent is bounded by open space with a constructed trail creating a buffer between the residential area and the wetlands. Finally, the hardship does not include difficulties arising from actions, or is otherwise self- imposed, by the applicant or previous predecessors in interest,. Therefore, the Commission found the variance necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this chapter 3. Will observe the spirit of this chapter, including the adopted growth policy, and do substantial justice; The proposed variance meets the spirit of the existing ordinance. As noted above there is no change to the exterior boundary of the lots. The lot boundaries were created by the Meadow Creek Phase 1 subdivision and subsequently the wetlands were installed. The existing trail and buffer in conjunction with the additional building setback requirements in this zoning district mitigates potential negative impacts caused by the further subdivision. The Amended Plat of Meadow Creek Phase I Major Subdivisim—Fijidhigs of Fact and Order 12 subdivision design continued use of the existing gravel trail. This trail provides for recreation and a topographic boundary between the single household lots and the wetland buffer. Therefore, the Commission found substantial justice is achieved by granting the requested variance. 4. In addition to the criteria specified above, in the case of a variance relating to the flood hazard provisions of article 31 of this chapter: Not applicable, requested variance is not related to flood hazard. In conclusion the Commission found that the requested variance will not be contrary to and will serve the public interest, is necessary, owing to conditions unique to the property, to avoid an unnecessary hardship which would unavoidably result from the enforcement of the literal meaning of this chapter, will observe the spirit of this chapter, including the adopted growth policy, and do substantial justice, and the requested variance is not relating to the flood hazard provisions of article 31 of this chapter and approved the variance request subject to conditions. X. After considering all matters of record presented at the public hearing, the City Commission found that preliminary plat for Amended Plat of Meadow Creek Phase I Major Subdivision would comply with the primary review criteria, City of Bozeman Growth Policy, requirements of the Bozeman Unified Development Code and the Montana Subdivision and Platting Act if certain conditions were imposed. The evidence, as stated or referenced in these Findings of Fact,justifies the imposition of the conditions ordered herein to ensure that the final plat complies with all applicable regulations and all required criteria. ORDER THEREFORE, IT IS HEREBY ORDERED, on a vote of 5-0, that the Preliminary Subdivision Plat of the Amended Plat of Meadow Creek Phase I Subdivision be approved, subject to the following conditions: I The final plat shall conform to all requirements of the Bozeman Municipal Code (BMC) and the Uniform Standards for Final Subdivision Plats and shall be accompanied by all required documents, including certification from the City Engineer that as-built drawings for public improvements were received, a platting certificate, and all required certificates, Amended Plat of Meadow Creek Phase 1 Major Subdivision - Findings of Fact and Order 13 The final plat application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base polyester film (or equivalent); two (2) digital copies; one (1) PDF copy; and five (5) paper prints. 2. The applicant is advised that unmet code provisions, or code provisions that are not specifically listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the lawful requirements of the BMC or State law. 3. The applicant shall submit with the application for final plat review and approval, a written narrative stating how each of the conditions of preliminary plat approval and noted code provisions have been satisfactorily addressed, and shall include a digital copy (pdf) of the entire final plat submittal. This narrative shall be in sufficient detail to direct the reviewer to the appropriate plat, plan, sheet, note, covenant, etc. in the submittal. 4. The subdivider shall provide the necessary declaration and recitals creating the property owner's association bylaws and/or declaration of covenants, conditions and restrictions as being part of the existing Meadow Creek Subdivision property owners association. Any cost sharing agreements for maintenance shall be included with the final plat. 5. The final plat shall contain the following notation on its face or in a document to be recorded with the final plat: "Ownership of all common open space areas and trails, and responsibility of maintenance thereof and for city assessments levied on the common open space lands shall be that of the property owner's association. Maintenance responsibility shall include, in addition to the common open space and trails, all vegetative ground cover, boulevard trees and irrigation systems in the public right-of-way boulevard strips along all external perimeter development streets and adjacent to public parks or other common open space areas. All areas within the subdivision that are designated herein as common open space including trails are for the use and enjoyment by residents of the development and the general public. The property owner's association shall be responsible for levying annual assessments to provide for the maintenance, repair, and upkeep of all common open space areas and trails. At the same time of recording the final plat for each phase of the subdivision the subdivider shall transfer ownership of all common open space areas within each phase to the property owner's association created by the subdivider to maintain all common open space areas within Meadow Creek Phase I Subdivision". 6. Documentation of compliance with the parkland dedication requirements of Section 38.27.020, BMC shall be provided with the final plat. A table showing the parkland requirements for the subdivision and the method of meeting the parkland dedication shall be included on the final plat, or other recordable document acceptable to the City of Bozeman. This table shall include but not be limited to listing all dedicated parkland requirements, parkland or parkland credits and areas not credited towards parkland (i.e., detention/retention areas, watercourse setbacks, wetlands, common open space, parking facilities) and the total area of each. The applicant shall provide a minimum of 1.26 acres of dedicated parkland or equivalent thereof with the major subdivision. This amount is calculated based on 42 single household residential lots at 0.03 acres per dwelling of dedicated parkland. The final plat, property owner's association documents (POA), and park master plan may not include any reference to "dedicated" open space and Public Park; rather if the areas designated as such on the preliminary plat are to be common open Amended Plat of MeadoNv Creek Phase I Major Subdivision— Findings of Fact and Order 14 space owned by the POA or a park owned by the POA, or a combination thereof the plat, POA documents and park master plan must specifically designate them as common open space owned by the POA, etc. unless the applicant intends to dedicate public parkland within the subdivision. 7. The subdivision must meet the parkland requirements of Sect. 38.27.020, BMC. The applicant it seeks to use available parkland credits associated with the dedicated parkland within Meadow Creek Phase 1, including the dedicated park known as the "Lerner and Ainsworth Parks" and should therefore participate in the maintenance of such parkland. Therefore, the applicant shall, prior to final plat approval, work with the Meadow Creek Phase I Property Owner's Association (MCPOA) to arrive at an agreed upon method to ensure the applicant and any future property owner's association created for this subdivision (including all its phases) succeeding in interest to the applicant contribute sufficient consideration to the MCPOA on an equitable basis for the maintenance and upkeep of existing publicly dedicated parks and publicly accessible open space lands and trails located within the subdivision. Prior to final plat approval, the applicant shall provide evidence that an agreed upon method has been established. The agreement may contain a provision that should the City create a park maintenance district for maintenance of areas subject to the agreement the agreement may terminate. The property owner's association documents created for this subdivision shall include provisions describing the agreed upon method of contribution to the MCPOA and binding property owners to contribute to the maintenance and upkeep of dedicated parks and publicly accessible open space lands as required by the agreement between the applicant and the MCPOA. The provisions in the property owner's association documents fulfilling this condition shall be considered required by the City Commission Pursuant to 38.38.030,A.5, BMC. 8. A pedestrian walk, constructed to City standards, shall be constructed in a 30-foot wide public access easement constructed in the common open space areas for Block I — 4. The final location, placement and installation schedule shall be approved by the Director of the City of Bozeman Department of Parks and Recreation with of the advice of the Recreation and Parks Advisory Board (RPAB). Prior to proceeding with construction of the public trail the applicant shall have a pre-construction meeting with the Department of Recreation and Parks. 9. Section 38.23,130 "Fences, Walls and Hedges" - Fences located in the front, side or rear yard setback of properties adjacent to any park or common open space shall not exceed a maximum height of 4 feet, and shall be of an open construction designed in a manner to be consistent along all park land and open space areas. This requirement with appropriate exhibits of fence types shall be addressed and illustrated in the property owner's association documents, 10. Section 38.27.070 "Landscaping of Public Lands" — Installation by the developer of vegetative ground cover, boulevard trees, and irrigation system in the public right-of-way boulevard strips along all external perimeter development streets and adjacent to public parks or other open space areas is required with the final plat application, Amended Plat of Meadow Creek Phase 1 Major Subdivision —Findings of Fact and Order 15 11. A one (1) foot No Access Strip shall be shown on the plat along the entire frontage of South 27"' Avenue with the exception of Lot 11, Block 4 to allow the shared access easement. 12. Final Plat shall show the 30 foot public utility and access easement as depicted on Meadow Creek Phase plat J-453 as shared access for Lot 13, Block 9. The POA covenants shall include a statement that Lot 11, Block 4 of the Amended plat of Meadow Creek Subdivision is subject to this easement. 13. A note on the Final Plat shall include non-liability statements referenced under Section 85- 7-2212, Mont. Codes Ann. The property owner's association documents created for this subdivision shall also reference these provisions. 14. The final plat application for the subdivision shall include typical cross sections for each storm water facility in relation to adjacent subdivision improvements and physical features (i.e., watercourse, Road A), plans verifying placement of the facility only in Zone 11 of the watercourse setback, typical landscape and grading details for each storm water facility, and landscape plans for each -facility outlet. The cross sections shall be approved by the City prior to final plat approval. 15. The final plat shall provide all necessary utility easements and shall be described, dimensioned and shown on the final plat in their true and correct location. Any rear or side yard utility easements not provided will require written confirmation from ALL utility companies providing service indicating that rear or side yard easements are not needed. 16. Section 38.41.0,80.2.g.9 requires a Stormwater Master Plan for the subdivision for a system designed to remove solids, silt, oils, grease, and other pollutants from the runoff from the private and public streets and all lots must be provided to and approved by the City Engineer. The master plan must depict the maximum sized retention1detention basin location, and locate and provide easements for adequate drainage ways within the subdivision to transport runoff to the stormwater receiving channel. The plan shall include sufficient site grading and elevation information (particularly for the basin sites, drainage ways, and lot finished grades), typical stormwater retention/detention basin and discharge structure details, basin sizing calculations, and a stormwater maintenance plan. Any stormwater ponds located within park or open space shall be designed and constructed so as to be conducive to the normal use and maintenance of the park or open space. Storm water ponds shall not be located on private lots. Detailedreview of the final grading and drainage plan and approval by the City Engineer will be required as part of the infrastructure plan and specification review process 17. A Storm Water Management Permit (SMP) must be submitted and approved by the City Engineer prior to Preliminary Plat Approval. The SMP requires submittals of an application form and a Storm Water Management Plan in compliance with the City of Bozeman's Storm Water Management Ordinance #1763. The SMP is independent of any other storm water permitting required from the State of Montana, and does not fulfill the requirement to obtain a Storm Water Pollution Prevention Plan (SWPP,P) if they are required for this development. Amended Plat of Meadow Creek Phase 1 Major Subdivision—Findings ofFact and Order 16 18. Section 38.23.070 specifies that the Developer's engineer will be required to prepare a comprehensive design report evaluating existing capacity of water and sewer utilities which must be provided to and approved by the City Engineer. The report must include hydraulic evaluations of each utility for both existing and post-development demands. The report findings must demonstrate adequate capacity to serve the full development. The report must also identify the proposed phasing of water and sewer construction. If adequate water and/or sewer capacity is not available for full development, the report must identify necessary water system and sewer system improvements required for full development. The Developer will be responsible to complete the necessary system improvements to serve the full development. All water mains over 500 feet in length must be looped. 19. Section 38.41.080.8.7 requires the location of and distinction between existing and proposed sewer and water mains and all easements shall be clearly and accurately depicted on the plans and specs, as well as all nearby fire hydrants and proposed fire hydrants. 20. Section 38.23.060.c specifies any easements needed for the water and sewer main extensions shall be a minimum of 30 feet in width. While the final location of the water and sewer mains will be determined once the final street widths are approved, in no case shall the utility be less than 10 feet from the edge of the casement All necessary easements shall be provided prior to final plat approval and shall be shown on the plat. Wherever water and/or sewer mains are not located under or accessed from improved streets, a 12 foot wide all weather access drive shall be constructed above the utilities to provide necessary access. 21 Section 32,23.070 specifies plans and Specifications for water and sewer main extensions, prepared and signed by a Professional Engineer (PE) registered in the State of Montana shall be provided to and approved by the City Engineer. Water and sewer plans shall also be approved by the Montana Department of Environmental Quality. The applicant shall also provide Professional Engineering services for Construction Inspection, Post- Construction Certification, and preparation of mylar Record Drawings. Construction shall not be initiated on the public infrastructure improvements until the plans and specifications have been approved and a preconstruction conference has been conducted. No building permits shall be issued prior to City acceptance of the required infrastructure improvements unless concurrent construction is granted. 22. City standard curb, gutter and sidewalk shall be provided along all streets in the subdivision. Per Chapter 38.24.080 of the UDC sidewalks will be installed prior to occupancy of any individual lots. 23. Street names must be approved by the City Engineer and Gallatin County road office prior to final plat approval. 24. All streets contained within the subdivision shall be within dedicated public right of way and built to city standards. 25. The proposed drive access, at the southern portion of the development, shown onto South 27'h Avenue does not meet the minimum separation standards outlined in BMC section 38.24.090.D.2 (Table 44-3). If the applicant wishes to utilize these accesses for the proposed development, they must request a relaxation from the City Engineer. The criteria An ended Plat of Meadow Creek Phase 1 Major Subdivision -1°indings of Fact and Order 17 for this request is outlined in BMC section 38.24.090.14.3. The preference of City Engineering would be to align this access with the existing alignment of Meah Lane, 26. The location of mailboxes shall be coordinated with the City Engineering Department prior to their installation. 27. Section 38.41.020 outlines additional permits that may be required beyond what is administered by the City of Bozeman. The Montana Department of Fish, Wildlife and Parks, SCS, Montana Department of Environmental Quality and Army Corps of Engineer's shall be contacted regarding the proposed project and any required pennits (i.e., 310, 404, Turbidity exemption, etc.) shall be obtained prior to plan and specification approval. 28. 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 38.39.020.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. 29. All construction activities shall comply with section 38.39.020.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. 30. All street lights installed with this subdivision shall use LED light heads. Amended Plat of Meadow Creek Phase I Major Subdivision—Findings of Fact and Order 18 This City Commission order may be appealed by bringing an action in the Eighteenth District Court of Gallatin County, within 30 days after the adoption of this document by the City Commission, by following the procedures of Section 76-3-625, MCA, The preliminary approval of this subdivision shall be effective for three (3) years from the date of the signed Findings of Fact and Order approval. At the end of this period the City may, at the request of the subdivider, grant individual extensions to its approval by the Community Development Director for a period of not more than two years, or for more than two years by the City Commission. 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