HomeMy WebLinkAboutLegends at Bridger Creek II correspondence from DM&L for Guinness Partners DM&L
Datsopoulos, MacDonald & Lind, P.C.
LAW OFFICES I EST. 1974
Missoula Offices Hamilton Offices Milton Datsopoulos
Dennis E.Lind
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City Commission
Attn: Mayor and Commissioners
City of Bozeman
P.O Box 1230
Bozeman, MT 59771
RE: Legends at Bridger Creek—Phase III
Our Client: Guinness Partners, Inc.
a Montana Corporation
Our File No.: 21360.001
Dear Mayor and Commissioners:
Please be advised that the undersigned represents Guinness Partners, Inc., a Montana
corporation and the developer of the Legends at Bridger Creek II Subdivision Phase III
(hereinafter referred to as "Guinness Partner".)
I have had an opportunity to review the salient background information associated with
my client's Major Subdivision Preliminary Plat Application including the Staff Report,
comments from the City of Bozeman's Development Review Committee and Recreation and
Parks Advisory Board, Minutes of the City of Bozeman Planning Board held Tuesday, June 17,
2014 and Resolution #P-14022 adopted by the Planning Board at that Meeting, the salient
provisions of the local subdivision regulations and state law. I am writing for purposes of
addressing the legal concerns and issues which have arisen as a result of the adoption by the
Planning Board of Resolution#P-14022.
Datsopoulos, MacDonald & Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 2
As you know, at the June 17, 2014 meeting, the Planning Board initially moved to
recommend approval of the preliminary plat application with the recommended conditions of
approval provided in the Staff Report but then moved to amend the main motion apparently for
purposes of incorporating public comment. The result of the amended motion passed by the
Planning Board is to require Guinness Partners to eliminate from the preliminary plat the lots
situated on the north side of Boylan Road. Some of the lots could be relocated to the south side
of the road, however, the financial consequences associated with eliminating the lots from the
north side of the road is severe. In this regard, my clients estimate that a loss in excess of
$1,100,000 in project value will be recognized which at this late date would render the
subdivision financially unfeasible.
In support of its decision to recommend imposition of the condition, the Planning Board
simply stated in its Resolution that the purpose of the condition was to move the location of the
open space to align with the road to promote pedestrian circulation to the open space area. The
minutes reflect that the motion to amend was to "align easement access coming off the roadways
to the open space to reflect public comment." The minutes further establish that the only public
comment relevant to this issue was made by a single individual who indicated that he thought
that the "phase is out of character with the rest of Legends at Bridger Creek with very little
access to the open space corridor." Two other individuals offered public comment at the
Planning Board hearing, one of whom commented regarding "habitat, open space, quantity of
homes and public safety" and the other on "limited open space in Creekwood Subdivision and
the alley on Boylan Road". Neither of these comments have a direct bearing on the issues
presented by the Planning Board's recommendation.
In rendering its decision, the Planning Board did not adopt any findings of fact and did
not cite to any specific statute or regulation providing the authority to impose the condition. In
fact, there is no support for the condition in the record of the proceedings. Rather, in the
discussion among the Planning Board Members which occurred prior to the vote on the
Amended Motion, the moving Member commented that he did not like the design of the
preliminary plat because it "doesn't seem consistent with Legends Phases I and II." However,
this comment ignores the fact that the prior Planned Unit Development submitted in connection
with Legends Phase I terminated and that the pending application is a new subdivision
application which meets the requirements of state law and the local regulations.
It is clear from the extensive information submitted by the developer in support of the
preliminary plat application that the subdivision contains adequate points of access for the public
to access open space along the corridor. In this regard, as depicted on the plat, the furthest
distance between access points is 460 feet and the furthest distance that an individual would have
to walk to reach an access point is 230 feet. Furthermore, the Bozeman Recreation & Parks
Advisory Board specifically reviewed the impact of residences fronting the trail and in its
recommendation specifically stated:
Datsopoulos, MacDonald & Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 3
"The I lots along the trail will remove street frontage, but the Committee's
longstanding opinion has been that street frontage on a linear park is rarely a
plus."
In recommending approval of the preliminary plat, the Staff Report cites the
recommendation of the Parks Advisory Board and states in pertinent part:
"The Recreation and Parks Advisory Board Subdivision Review Committee
reviewed the proposal on May 9, 2014 and have recommended it for approval. As
included in the attached review memorandum, the Committee indicated that they
`endorse this proposal, we think the trail development as shown will create an
excellent amenity and the dedication requirements have been met to our
satisfaction.' Recommended conditions of approval have been included to address
the final parkland and open space dedication labeling and maintenance provisions
as part of the final plat process." (See, Staff Report, pg. 14, second paragraph
entitled"Parklands").
The Staff Report further recognizes the beneficial impact on the natural environment of
the preliminary plat as designed by the Developer:
"This property is located in an area of the City which has been identified and
developed for residential uses at urban density and no changes are proposed that
would impact the natural environment. The proposed open space area north of
Boylan Road will further protect the riparian area along Bridget Creek." (See,
Staff Report, pg. 14, section 4).
The Staff report also recognizes that the subdivision is designed to protect the riparian
area and associated wildlife habitat along Bridget Creek. (See, Staff Report, pg. 14, section 5).
Furthermore, the preliminary plat establishes that the developer has designated for each
lot which fronts the open space, substantial setbacks of residential construction from the open
space. In this regard, the design of the subdivision incorporates a 75 foot watercourse setback
along the existing Bridget Creek watercourse, wetlands and floodplain which will protect the
riparian environment already established on the property. See, Staff Report, pg. 16, citing
section 38.41.060.A.6 entitled "Wildlife".)
It is noteworthy that other phases of the development have allowed for residences to front
subdivision trails or open space. In this regard, the Townhomes of Legends, Phase I are
constructed adjacent to the walking trail and the single family residences of the Creekwood
subdivision back up to the open space. Furthermore, other subdivisions within the City of
Bozeman have been approved with the same or substantially similar design.
Datsopoulos, MacDonald & Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 4
In rendering its decision, the Planning Board failed to consider any of this information. It
appears that the Planning Board by the amending motion, merely decided to change the design of
the plat as a matter of personal preference. In this regard, in the discussion among the Planning
Board Members which preceded the vote on the Amended Motion, one of the Board Members
questioned the reasons for holding the Legends Phase III subdivision application "to a higher
standard than the Creekwood Subdivision" and commented that the pending application "meets
the requirements of the Code." The moving Board Member responded by commenting that in
his opinion, the Legends Phase III development "doesn't seem consistent with the Legends
Phases I and II" and "doesn't provide the kind of access to the open space that Legends Phases I
and II did." As mentioned above, these comments ignore the fact that Legends lI Phase I were
submitted as Planned Unit Developments (`PUD") applications while Legends II, Phase II and
Legends Phase III were submitted as subdivision applications. However, the prior PUD
terminated. From a legal standpoint, Legends Phase III is a new subdivision application and not
a part of any phased development. The Legends III subdivision application was submitted with
no variances and designed to comply fully with the requirements of the Code. The Legends II,
Phase I1 subdivision application was approved by the City Commission.
In failing to consider any of this information, the Planning Board offered no justification
for the condition in the record except that public comment suggested it and that the Legends III
design is not consistent with the designs of Legends I and II. This is legally inadequate to
justify any condition, much less one that converts private property to public use. To the
contrary, in recommending approval of the preliminary plat, the Staff Report unequivocally
confirms that the proposed phase has been "designed to comply with all current code
requirements". See, Staff Report, pg. 21, second paragraph under "Project Background".) In
this regard, the Planning Board's failure to support its decision to impose the condition with
proper authority, facts and conclusions renders the recommendation arbitrary and capricious.
Furthermore, without any legal support or justification, the Planning Board recites in
paragraph 1,page 2 of its Resolution that it"reviewed the application against the requirements of
the Montana Subdivision and Platting Act and found that, with conditions, the Major Subdivision
Preliminary Plat Application would not comply with those requirements." To the contrary, the
staff report confirms that the subdivision application complies with all aspects of Montana law.
(See, Staff Report, pg. 21). However, the public comment and personal design preferences of
one of its Members upon which the Planning Board apparently relies in support of its Resolution
consists of conclusory statements without factual justification or explanation.
The City Commission does not have plenary power to impose conditions or make
changes to subdivisions because its members have personal preferences about the design of a
particular preliminary plat. To the contrary, it must cite to proper authority, proper facts and
proper justifications for imposing conditions. As required by the Montana Subdivision and
Platting Act (hereinafter the "Act"), as well as basic constitutional principles, these authorities,
facts and justifications must in some way relate to correcting deficiencies in the subdivision
Datsopoulos, MacDonald & Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 5
application, such as failing to meet the minimum requirements of the local subdivision
regulations, or to mitigate potentially significant adverse impacts caused by the subdivision
itself. In this case there is no evidence in the record of material adverse impact with regard to
any of the review criteria set forth in the Act. The decision of the Planning Board flies in the
face of the Staff Report which provides detailed information about the attributes of the
subdivision and confirms compliance of the subdivision with state and local law.
The Montana Supreme Court has held that a substantial amount of evidence must
support a local governing body's decision to deny a subdivision application. (See, MM & 1,
LLC, v. Bd. Of county Comm'rs of Gallatin County, 201 MT, 358 Mont. 420; 246 P.3`d 1029,
1030). Furthermore, in the absence of substantial evidence of adverse impact, the governing
body cannot require mitigation. See MM & I, LLC, at pg. 1030). In the case at hand there is
no evidence of adverse impact in the record with regard to the location of lots on the north side
of Boylan Road which would implicate the subdivision review criteria set forth in M.C.A.
Section 76-3-608(3)(a). Furthermore, there is no evidence in the record that establishes that the
Planning Board attempted to review and weigh any evidence regarding adverse impact. Rather,
the decision to deny was based upon the bald assertion by one member of the public that Phase
III of the development was "out of character with the rest of Legends of Bridger Creek". What
this comment clearly ignores is the amount of open space provided by Phase III (10.27 acres as a
percentage of total developable acreage (25 acres). In fact, Phase III was designed by the
developer to generously provide five times the amount of open space provided in the first two
phases of the development. Clearly, the decision of the Planning Board to recommend denial was
random, unreasonable and seemingly motivated solely by the personal design preferences of
certain of its members.
If we assume hypothetically for the moment and for the sake of argument that the
location of the lots on the north side of Boylan Road creates adverse impact (which it does not),
then in considering mitigation, the governing body is required under state law to consult with the
developer and give due weight and consideration to the expressed preference of the developer.
(See, MM & 1, LLC, at pg. 1030 citing M.C.A. Section 76-3-608(5)(b).) In this case, there was
no attempt on the part of the Planning Board to consult with the developer with regard to its
mitigation preferences. Rather, the Planning Board simply decided that lots had to be moved
without considering the devastating financial ramifications to the developer and the Project as a
whole. Clearly, the points of access to the common area provided by the preliminary plat design
along with the buffers which separate residential lots from the open space are adequate to
address any concern about pedestrian access and this fact is substantiated by the comments of the
Park Advisory Board in recommending approval of the Preliminary Plat Application.
As mentioned above, the Montana Subdivision and Platting Act provides detailed
requirements for the City Commission to follow in reviewing a subdivision application and
issuing its required written decision. (See, M.C.A. Section 76-3-608). Even local governments
with self-governing powers like the City of Bozeman are bound to follow all statutes regulating
Datsopoulos, MacDonald & Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 6
planning and subdivision approval. (See, M.C.A. Section 7-1-114). Part 6 of the Act sets out the
required local review procedure. A subdivider submits an application which must be certified as
complete and sufficient by the local government. (See, M.C.A. Section 76-3-604). Agencies
and members of the public are given an opportunity to comment, both in writing and during
public hearings. (See, M.C.A. Section 76-3-605). The City Commission is charged with
reviewing the subdivision application and weighing certain primary review criteria. See,
M.C.A. Section 76-3-608(3)). In this case, the Planning Staff prepared a staff report evaluating
the proposed subdivision in light of the state law requirements, review criteria, local regulations
and agency and public comments. The various agencies implicated by the subdivision review
offered extensive comments and recommended approval of the application.
If it chooses to impose conditions upon the subdivision not contemplated in the staff
report, then the City Commission is required to issue a written statement meeting specific review
requirements which are in addition to the requirements of M.C.A. Section 76-3-608(4) to issue
written findings to justify the reasonable mitigation imposed on a subdivision application. In this
regard, the written statement referenced in M.C.A. Section 76-3-620 requires information
regarding the appeal process; identification of the regulations and statutes that are used in
reaching the decision to deny and explains how they apply to the decision to deny or impose
conditions; provides the facts and conclusions that the governing body relied upon in making its
decision to deny or impose conditions and references documents, testimony or other materials
that form the basis of the decision; and provides the conditions that apply to the preliminary plat
approval and that must be satisfied before the final plat may be approved. Failure to properly
issue the written statement is grounds for overturning the City Commission's decision. The City
Commission's written statement is of critical importance because it describes which facts and
authorities among all of those in the record the City Commission selected as forming the basis of
its decision to approve or deny an application and propose conditions.
In this case, for the City Commission to arbitrarily adopt the recommendation of the
Planning Board that lots situated on the north side of Boylan Road be eliminated from the
preliminary plat, would constitute a taking of the most valuable land in the subdivision. There
are provisions in the law for the exercise of eminent domain when the government can establish
such a need. However, such laws also provide for the compensation to the owner for the
deprivation of the property.
The Fourteenth Amendment to the U.S. Constitution protects individuals from state
actions that violate their federal constitutional rights. The Takings Clause of the Fifth
Amendment to the U.S. Constitution protects private property from being taken for public use
without just compensation. Article II, Section 29 of the Montana Constitution provides that
"private property shall not be taken or damaged for public use without just compensation to the
full extent of the loss having been first made to or paid into court for the owner". This case
presents an issue of a potential physical occupation of the developer's property by eliminating
from development the most valuable land in the subdivision and converting it to public use. A
DatsopouIos, MacDonald& Lind, P.C.
Mayor and Commissioners
City of Bozeman
July 21, 2014
Page 7
key purpose behind the Fifth Amendment is to "bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole." (See, Lingle,_ 544 U.S. at 537). The Planning Board recommendation, if adopted in this
case would present a takings issue which is a "direct government appropriation or physical
invasion of private property". See Lingle, 544 U.S. at 537). An easement is a valuable
property interest. An easement that allows the public to cross one's property affects "one of the
most essential sticks in the bundle of rights that are commonly characterized as property," the
right to exclude others. (See, Kaiser Aetna v. U.S., 444 U.S. 164, 176 (1979). "To say that the
appropriation of a public easement across a landowner's premises does not constitute the taking
of a property interest but rather [...] `a mere restriction on its use,' [...] is to use words in a
manner that deprives them of all their ordinary meaning." (See, Nollan v. Ca. Coastal Commn.
483 U.S. 825, 831 (1987).
In this case, the condition requiring elimination of lots to allegedly afford better public
access to open space results in Guinness Partners losing its right to develop valuable land for no
legitimate purpose. The sole basis offered by the Planning Board is the general unsubstantiated
notion that pedestrians may be able to better mingle into the common areas if the lots are
eliminated. This unsubstantiated conclusion flies directly in the face of the staff report and
recommendation of the Park Advisory board and offers no justification why it is necessary or
appropriate to convert any portion of the affected land to public use.
In conclusion, it is clear from the record that the preliminary plat has been designed to
comply with all current requirements of the Montana Code and local regulations. For the reasons
set forth in detail and with specificity above, the developer respectfully submits that the
recommendation of the Planning Board be rejected by the City Commission and the Major
Subdivision Preliminary Plat Application for the Legends III subdivision be approved with
conditions as outlined in the Staff Report.
Respectfully submitted,
William K. Van an gan, Esq.
Cc: Guinness Partners, Inc.
Marty Lambert, Gallatin County Attorney
Greg Sullivan, Bozeman City Attorney