HomeMy WebLinkAboutFlanders Mill Findings of Fact and Order_4
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Chris Saunders, Policy and Planning Manager Wendy Thomas, Director of Community Development
SUBJECT: Flanders Mill Phases 1-7 Major Subdivision Preliminary Plat
Findings of Fact and Order, P14024 MEETING DATE: September 8, 2014 AGENDA ITEM TYPE: Consent
RECOMMENDATION: Authorize the Mayor to sign the Findings of Fact and Order for the Flanders Mill Phases 1-7 Major Subdivision Preliminary Plat Application.
BACKGROUND: On July 7, 2014, the City Commission held a public hearing on an
application for preliminary plat approval for the Flanders Mill Phases 1-7 Major Subdivision.
The subdivision included several variances and special considerations. The Commission approved the proposed subdivision subject to conditions and code provisions to ensure the final
plat would comply with all applicable regulations and all required criteria. State law provides
that the governing body shall “provide a written statement to the applicant detailing the
circumstances of the condition imposition.” The statement must include: 1) the reason for the
condition imposition; 2) the evidence that justifies the condition imposition; and 3) information regarding the appeal process for the condition imposition. To proceed with submitting a final
plat application for the initial phase(s) of the subdivision, the applicant must have a dated and
signed Findings of Fact and Order.
UNRESOLVED ISSUES: Staff is unaware of any unresolved issues.
ALTERNATIVES:
1) Approval of the Findings of Fact and Order as drafted.
2) Approval of the Findings of Fact and Order with modifications. 3) As determined by the City Commission.
FISCAL EFFECTS: Fiscal impacts are undetermined at this time, but will include increased property tax revenues from new development, along with increased costs to deliver municipal services to the property. Impact fees will be collected at the time of issuance of building permits
for individual lots along with City sewer and water connection fees.
Attachment: Findings of Fact and Order
Report compiled on: August 18, 2014
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Return to:
City of Bozeman
City Clerk
PO Box 1230
Bozeman MT 59771-1230
Page 1 of 48
P-14024, Bozeman City Commission Findings of Fact and Order for the
Flanders Mill Phases 1-7 Subdivision
Public Hearing Date: Planning Board hearing on June 17, 2014
City Commission hearing on July 7, 2014
Project Description: A preliminary plat for a major subdivision with 295 lots on 136.75 acres
and associated open spaces, streets, and parks. Alternatives to standards for block length
and park land dedication are requested. Variances for block width, watercourse and
wetland setbacks, provision of sidewalks, and block length are included.
Project Location: Project is located southeast of the intersection of Flanders Mill Road and
Baxter Lane and west of Ferguson Avenue. The property is legally described as Tract 1,
Certificate of Survey 2834, Gallatin County, Montana.
Actions: Approval with conditions per Sections 3 and 4
Motions:
Dedication of Parks and Waiver of Park Dedication: Having reviewed and considered the
application materials, public comment, and all the information presented, I hereby adopt
the findings presented in the staff report regarding dedication of parkland and waiver of
park land dedication per Article 38.27 and move to accept the combination of dedicated
parkland as depicted in Park 1 and Park 2 and granting a waiver of dedication of
additional parkland per Section 38.27.100 as depicted in the submittal materials with the
applicable conditions set forth in the staff report. Approved 5-0
Release and Reconveyance of Park Easement: Having considered the proposed Park Plan for
the subdivision and considered the application materials, public comment, and all the
information presented, I hereby adopt the findings presented in the staff report regarding
the reconfiguration of the existing park easement and direct that Staff prepare the
necessary documents to release and reconvey the eastern end of Park 1 in coordination
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with the final plat of the initial phase of the subdivision and the adoption of the Park
Master Plan for the subdivision. Approved 5-0
Wetland and watercourse setback: Having reviewed and considered the application materials,
public comment, and all the information presented, I hereby adopt the findings presented
in the staff report and move to approve the variance from Section 38.23.100 to allow
encroachment into the required 50 foot wetland setback as depicted on Exhibit 4.1 in the
submittal materials with the applicable conditions set forth in the staff report. Approved
5-0
Block width: Having reviewed and considered the application materials, public comment, and
all the information presented, I hereby adopt the findings presented in the staff report and
move to approve the variance from Section 38.23.040.C to allow a block width of less
than 200 feet for Blocks 7, 9, 12, 14, 15, 18 as depicted on Sheets 1 and 2 of the
preliminary plat in the submittal materials with the applicable conditions set forth in the
staff report. Approved 4-1
Alternative block length: Having reviewed and considered the application materials, public
comment, and all the information presented, I hereby adopt the findings related to
alternative block length compliance as allowed by Section 38.23.040 as presented in the
staff report and move to approve Blocks 13, 15, 16, 17, 20, 22 and 24 to have a length in
excess of 400 feet as depicted on Sheets 1 and 2 of the preliminary plat in the submittal
materials with the applicable conditions set forth in the staff report. Approved 5-0
Level of Service: Having reviewed and considered the application materials, public comment,
and all the information presented, I hereby adopt the findings presented in the staff report
regarding a variance from Section 38.24.060 to allow an intersection to function below
level of service “C” as depicted on page 10 of the traffic impact study in the submittal
materials with the applicable conditions set forth in the staff report. Approved 5-0
To provide a Class I Transportation Pathway instead of a sidewalk: Having reviewed and
considered the application materials, public comment, and all the information presented, I
hereby adopt the findings presented in the staff report and move to approve the variance
from Section 38.24.080 to allow the development to not construct a concrete sidewalk in
the standard location and size within the dedicated right of way for Ferguson Avenue,
Baxter Lane, and Flanders Mill Road and to instead construct a Class I asphalt trail in a
public access easement adjacent to the street right of way as depicted on Sheets 1 and 2
of the preliminary plat and in the Park Plan in the submittal materials with the applicable
conditions set forth in the staff report. Approved 4-1
Subdivision as a whole: Having reviewed and considered the application materials, public
comment, and all the information presented, I hereby adopt the findings presented in the
staff report for application P14024 and move to approve the major subdivision with
conditions and subject to all applicable code provisions and incorporating all prior actions
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relating to dedication of parks , watercourse setbacks, block width, block length,
provision of alternative sidewalks, and the level of service at the intersection of Ferguson
Avenue and Durston Road with the conditions set forth in the staff report. Approved 5-0
Staff Contact: Chris Saunders, Policy and Planning Manager
Dustin Johnson, Development Review Engineer
Agenda Item Type: Action (Quasi-judicial)
PROJECT SUMMARY
The project is a seven phase subdivision on 136.75 acres creating: 294 residential lots, one lot for
an existing electrical substation, two dedicated public parks, and multiple private open spaces.
The project will include the extension or expansion of substantial public roads including Baxter
Lane, Oak Street, and Ferguson Avenue. A large power line exists in the Oak Street alignment
and will remain in place.
The application includes requests for six variances or alternative compliance measures. Each
variance or alternative compliance measure is described in detail under the applicable review
criteria.
The proposal includes the relocation of an unnamed tributary of Baxter Creek. The proposed
relocation places the water body within the central common open space which runs the length of
the development. The area is proposed to be revegetated with watercourse and wetland
appropriate species and is expected to have a substantially higher functional quality than the
present location which has been heavily impacted by agricultural practices. The relocation also
gives rise to the request for the wetland and watercourse setback encroachment variance and the
alternative park land dedication request.
The site is adjacent to three existing and one proposed neighborhood or community scale parks
and includes one existing parkland easement. The proposed park plan requests a partial waiver of
parkland dedication in recognition of other lands and facilities being provided for recreation
purposes by the development, in addition to the extensive existing nearby park facilities.
Substantial amounts of trails are provided within the subdivision as well as two dedicated parks.
See discussion in Section 6.
The proposal includes the substitution of standard sidewalks with a detached asphalt trail along
three perimeter street frontages. This requires a variance to code standards. The project traffic
impact study shows a failed intersection at Ferguson Avenue and Durston Road. The
construction of Ferguson Avenue north of Oak Street resolves this issue. However, this road
construction occurs later in the project phasing. Condition 47 establishes a two part timing
requirement so that the construction will occur not later than phase five. There are no identified
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intermediate steps to mitigate the deficiency. A variance has been requested to allow a lower
than allowed level of service (D/E) to continue until the street extension is constructed.
TABLE OF CONTENTS
PROJECT SUMMARY .................................................................................................................. 3
SECTION 1 - MAP SERIES .......................................................................................................... 5
SECTION 2 – REQUESTED VARIANCES AND ALTERNATIVE COMPLIANCE .............. 12
Alternative Compliance .................................................................................................... 12
Subdivision Variances ...................................................................................................... 12
Zoning Variances .............................................................................................................. 12
SECTION 3 - CONDITIONS OF APPROVAL ........................................................................... 13
SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS ...................... 21
SECTION 5 - RECOMMENDATIONs AND ACTIONS ........................................................... 22
SECTION 6 - STAFF ANALYSIS and findings .......................................................................... 23
Applicable Subdivision Review Criteria, Section 38.03.040, BMC................................. 23
Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 26
Preliminary Plat Supplements ........................................................................................... 34
Subdivision Variance Review Criteria, Section 38.35.070, BMC .................................... 37
Zoning Variance Review Criteria, Section 38.35.060, BMC ........................................... 40
SECTION 7 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS ......................... 44
APPENDIX A –ADVISORY CODE CITATIONS ..................................................................... 46
APPENDIX B – PROJECT SITE ZONING AND GROWTH POLICY ..................................... 46
APPENDIX C – DETAILED PROJECT DESCRIPTION AND BACKGROUND.................... 47
APPENDIX D – NOTICING AND PUBLIC COMMENT ......................................................... 47
APPENDIX E – OWNER INFORMATION AND REVIEWING STAFF ................................. 48
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SECTION 1 - MAP SERIES
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Surrounding Zoning and
Land Uses
North: R-1, Residential
Single-Household
District and R-3,
Residential Medium
Density District; park
and single detached
homes
South: R-2, Residential
Two-Household District;
church and vacant
East: R-3, Residential
Medium Density
District; single detached
homes, PLI, Gallatin
County Regional Park
West: Unannexed, A-S,
Agricultural-Suburban
District; farmland, PLI,
Meadowlark Elementary
School
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SECTION 2 – REQUESTED VARIANCES AND ALTERNATIVE
COMPLIANCE
Variances or alternative compliance approaches have been requested from the following
sections. These are analyzed in a variety of locations within this report.
Alternative Compliance
1) Section 38.27.100 Waiver of Required Park Dedication. To allow the required park dedication
to be satisfied through a combination of dedicated park area and reserved private land with a
public access easement. This is addressed under Section 6, Criteria 3) Effect on Local Services,
Parkland of the staff report.
2) Section 38.23.040 Blocks - Requested alternative block length to be satisfied by pedestrian
right-of-way in six locations; and to allow six blocks with a greater length. The Blocks are 13,
15, 16, 17, 20, and 24. This is addressed under Section 6, Criteria 3) Effect on Local Services,
Streets of the staff report.
Subdivision Variances
1) Section 38.24.060.B.4 Street Improvement Standards - Variance for intersection level of
service at Durston Rd and Ferguson Ave to be less than level C at time of final plat for some
phases of the subdivision. This is addressed under, Section 6, subdivision variance 1.
2) Section 38.24.080, BMC Sidewalks – To not construct standard sidewalks in standard
locations along Ferguson Avenue, Baxter Lane, and Flanders Mill Road. Allow use of an
alternative Class I asphalt paved trail in lieu of sidewalks on Flanders Mill Road, Baxter Lane,
and Ferguson Avenue. Trail location will be in a public easement adjacent to the street right-of-
way. This is addressed under, Section 6, subdivision variance 2.
Zoning Variances
1) Section 38.23.100 Water course setback – To encroach into required 50 foot setback for
multiple lots. This is addressed under Section 6, Criteria 4) Effect on Natural Environment and
zoning variance 1.
2) Section 38.23.040 Blocks - Requested to allow Blocks 7, 9, 12, 14, 15, 18 with a width of less
than the minimum required 200 feet. This is addressed under Section 6, zoning variance 2.
3) Section 38.23.040 Blocks – Requested to allow block length to exceed 400 feet with
pedestrian right-of-way in Blocks 13, 15, 16, 17, 20, and 24. This is addressed under Section 6,
zoning variance 3. The Commission found that under Alternative Compliance item 2 the
alternative block length criteria were satisfied and therefore this variance is not necessary.
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SECTION 3 - CONDITIONS OF APPROVAL
Please note that these conditions are in addition to any required code provisions. These
conditions are specific to the Flanders Mill Subdivision, and are identified and grouped by their
general subject.
Recommended Conditions of Approval:
1) 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.
2) The final plat for each phase of the subdivision shall conform to the design and amenities
included within the subdivision application and the conditions of approval. Alterations require
approval by the City of Bozeman.
3) The final plat shall conform to all requirements of the Bozeman Municipal Code (BMC)
and the Uniform Standards for Final Subdivision Plats and shall be accompanied by all required
documents, including certification from the City Engineer that as-built drawings for public
improvements were received, a platting certificate, and all required certificates. The final plat
application shall include three (3) signed reproducible copies on a 3 mil or heavier stable base
polyester film (or equivalent); two (2) digital copies; one (1) PDF copy; and five (5) paper prints.
The applicant is advised that unmet code provisions, or code provisions that are not specifically
listed as conditions of approval, does not, in any way, create a waiver or other relaxation of the
lawful requirements of the BMC or State law.
4) A separate Conditions and Notes sheet shall be included with each final plat.
5) The area of the subdivision not included in a final plat shall be designated as “Lot 1R” or
another designation mutually agreed upon and shall be subject to the following note:
“Notice Is Hereby Given to all potential purchasers of Lot 1R of the plat of the Flanders
Mill Subdivision Phase ______, City of Bozeman, Gallatin County, Montana that the
final plat of the subdivision was approved by the City Commission without completion of
on and off-site improvements required under the Bozeman Municipal Code as is allowed
in Article 38.39 of the Bozeman Municipal Code.
As such, this Restriction is filed with the final plat that stipulates that any use of this lot is
subject to further subdivision or development review, and no development of this lot shall
occur until all on and off-site improvements are completed as required under the
Bozeman Municipal Code.
Therefore, Be Advised, that Building Permits will not be issued for Lot 1R of the Plat of
the Flanders Mill Subdivision Phase ______, City of Bozeman, Gallatin County,
Montana until all required on and off-site improvements are completed and accepted by
the City of Bozeman. No building or structure requiring water or sewer facilities shall be
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utilized on this lot until this restriction is lifted. This restriction runs with the land and is
revocable only by further subdivision or the written consent of the City of Bozeman.”
PARKS AND OPEN SPACES
6) All common open spaces shall be clearly designated on the plat with sequential
incrementors such as Common Open Space A, Common Open Space B, etc. All references
within covenants, application materials, etc shall clearly refer to the identified spaces.
7) The final plat for each phase shall include a transfer of private improvements certificate
to read substantially as follows:
CERTIFICATE OF TRANSFER OF OWNERSHIP & COMPLETION OF NON-
PUBLIC IMPROVEMENTS
The following are hereby granted and donated to the property owners association noted
below for their use and enjoyment: Common Open Space parcels designated with letters
A, B, C, D, E, F, G and H. Unless specifically listed in the Certificate of Dedication, the
city accepts no responsibility for maintaining the same. I, (Subdivider), hereby further
certify that the following non-public improvements, required to meet the requirements of
Chapter 38 of the Bozeman Municipal Code, or as a condition(s) of approval of the
subdivision plotted herewith, have been installed in conformance with any approved
plans and specifications prepared in accordance with the standards of Chapter 38 or other
City design standards, or have been financially guaranteed and are covered by the
subdivision improvements agreement accompanying and recorded with this plat.
Installed Improvements: (LIST ITEMS).
Financially Guaranteed Improvements: (LIST ITEMS OR STATE NONE).
The subdivider hereby grants ownership of all non-public infrastructure improvements to
the property owners association created by Document Number
______________________(To be filled in when recorded)
By: (Subdivider) Date: _____________________________
8) The public park area and private open spaces with public access used to satisfy parkland
dedication requirements of Article 38.27, BMC for all phases of the Flanders Mill Subdivision
shall be provided as a public park easement with the first final plat of the Flanders Mill
Subdivision. The easement boundaries and area shall correspond with the approved park layout
and park master plan. Park areas within each final platted area (not lot 1R) will be dedicated with
the final plat.
9) Proposed Blocks 11 and 12 will displace portions of an existing park easement. The
existing easement shall be released and reconveyed to the owner at the time of the final plat of
Phase 1 in conjunction with the provision of a new easement for all park lands in all phases of
the Flanders Mill Subdivision.
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10) The property owner’s association documents for this subdivision shall be drafted so that
the entirety of the property being subdivided in all phases is subjected to the obligations of park
and open space maintenance at the time of the recording of the final plat of the first
phase. Contribution to maintenance expenses may be proportionate to the number of lots platted.
11) The property owner’s association documents created for this subdivision shall include
provisions describing the agreed upon method of contribution to the Flanders Mill Property
Owners Association and binding property owners of future phases to contribute to the
maintenance and upkeep of dedicated parks and publicly accessible open space lands required to
be maintained by the Flanders Mill Property Owners Association. The provisions in the property
owner’s association documents fulfilling this condition shall be considered required by the City
Commission pursuant to Section 38.38.030.A.5, BMC. The City may release the Flanders Mill
Property Owners Association from the obligation to maintain parks dedicated to the City at the
City’s discretion.
12) 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 in each phase is required prior to
the final plat application of that phase in accordance with the requirements of Section 38.27.070
“Landscaping of Public Lands”. This includes the common open spaces providing pedestrian
walks.
13) The required additional investment in park facilities, structures, or land required due to
having less than 100% frontage on Park 1, shall be provided by installation of the depicted
workout stations in Park 1 as described in the Park Plan. Installation shall be coordinated with
the phase in which Park 1 is dedicated to the City on the final plat.
14) Fences located in the front, side or rear yard setback of properties adjacent to any park or
open space shall not exceed a maximum height of four (4) feet, and shall be of an open
construction designed in a manner to be consistent along park land and open space areas.
Proposed fencing shall conform to Section 38.23.130 “Fences, Walls and Hedges.” This
requirement, with appropriate exhibits of fence types, shall be addressed and illustrated in the
property owner’s association documents. The documents shall include one or more coordinated
fence style(s) acceptable to the City for locations sharing a property line with a public park or
open space.
15) The final Park Plan shall be revised to remove the asphalt trails from the list of future
items. The asphalt trails are an alternative compliance for sidewalks and shall be installed
concurrently with the infrastructure with each phase by the developer. The final Park plan shall
break out the costs for development of Park 2 into those with initial development prior to platting
and those for future work.
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16) The certificate of dedication shall be revised to note that the property owners association
is responsible for maintenance of the medians in Annie Street and Harvest Parkway Road. The
City will accept maintenance for all other public streets.
17) The certificate of dedication shall be revised to note that the property owners association
is responsible for maintenance of all common open spaces and shall be responsible for
maintenance of dedicated parks 1 and 2 until released from this obligation by the City.
18) Prior to beginning any excavation of gravel within Park 1 a copy of approved DEQ
mining permits or evidence they are not needed shall be provided to the Department of
Community Development.
19) Open Space U shall be configured with the wetlands enhancement to capture overland
discharge from the electrical substation tract and avoid surface water discharges from Open
Space U.
20) A table shall be provided on the Conditions and Notes Sheet of the final plat showing the
amount of park area that has been provided for each parcel in each final plat.
21) The final Park Plan must be submitted, reviewed and approved by the City Commission
prior to Final Plat approval of the initial phase of the major subdivision. The calculated park
areas shall not include any areas used for stormwater treatment.
22) The Class I paved trail depicted along Flanders Mill Road shall be continued through the
park area in the same placement in relation to the street as in the public access easement along
Flanders Mill Road in the areas outside of the park; and the Class II trails shall intersect with it to
enable a complete circulation loop.
23) The Class I paved trail shall be located within a public easement of adequate width to
provide for its maintenance and conform to Section 38.24.110, BMC.
STORMWATER
24) Any stormwater flows directed into the surface water features created in Park 1 shall be
treated to remove oils and suspended solids before being discharged to the surface waters.
Treatment shall comply with the City’s stormwater program and requirements.
25) All stormwater facilities not on property dedicated to the City of Bozeman require public
utility easements for storm water facility maintenance.
STREET LIGHTS
26) A complete application for the required special improvement lighting district shall be
submitted to the City of Bozeman Finance Department at least 60 working days prior to the
submittal of the final plat for review. The request to form a lighting district shall include all
lighting types for which the district will be responsible.
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27) The initial adoption of the special improvement lighting district shall include the entire
area of the preliminary plat for the Flanders Mill Subdivision. As each final plat within the
Flanders Mill Subdivision is approved the area and number of lots approved for development and
associated lighting improvements shall be added to basis of the installed improvements and the
fee payers of the district. Areas within the district which are platted as Lot 1R shall not be
assessed a fee or if it is determined that a fee must be charged to Lot 1R the lot shall be assessed
as a single lot.
28) A comprehensive lighting plan shall be submitted for all surrounding streets and
intersections.
29) Any public street lighting installed by this development shall be LED.
OTHER SUBJECTS
30) Project phasing shall be clearly defined on the infrastructure plans and specifications
including installation of infrastructure.
31) The Conditions and Notes sheet of the final plat shall contain the following language that
is readily visible with lettering, at a minimum size of 12 point type, placing future landowners of
individual lots on notice of the presence of high groundwater in the area of the subdivision:
“Due to the potential of high ground water tables in the areas of the subdivision, it is not
recommended that residential dwellings or other structures with full or partial basements
be constructed without first consulting a professional engineer licensed in the State of
Montana and qualified in the certification of residential and commercial construction.”
32) The Conditions and Notes sheet of the final plat shall contain the following language that
is readily visible with lettering, at a minimum size of 12 point type, placing future landowners of
individual lots on notice of the obligation to install sidewalks:
“City standard sidewalks (including a concrete sidewalk section through all private drive
approaches) shall be constructed on all public and private street frontages prior to
occupancy of any structure on individual lots. Upon the third anniversary of the plat
recordation of any phase of the subdivision, any lot owner who has not constructed the
required sidewalk shall, without further notice, construct within 30 days, the sidewalk for
their lot(s), regardless of whether other improvements have been made upon the lot.”
33) The easement for the agricultural water user facility along Baxter Lane shall be provided
by separate document but shall be referenced on the Conditions and Notes sheet of the final plat.
The easement document shall specify the dimensions and beneficiary of the easement; and shall
be recorded with the Gallatin County Clerk and Recorder not later than the time that the final
plat is recorded within which the easement is located.
34) The western boundary of Lot 10, Block 1 shall be straightened to keep essentially the
same line as lots to the north to minimize encroachments and simplify fencing and open space
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boundary.
35) A written narrative shall be submitted describing what improvements will be completed
with each phase of the subdivision. Each phase must address paving, drainage, access and other
site improvements independently prior final plat.
All infrastructure improvements including 1) water and sewer main extensions, and 2) public
streets, curb/gutter, sidewalks fronting parks, open space, rear yard frontages or other non-lot
frontages, and related storm drainage infrastructure improvements shall be financially guaranteed
or constructed prior to Final Plat approval.
36) City standard sidewalks shall be constructed on all public street frontages of a property
prior to occupancy of any structure on the property. 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. This condition shall be included on
the plat and in the covenants for the subdivision.
37) The applicant shall provide and file with the County Clerk and Recorder's office executed
Waivers of Right to Protest Creation of Special Improvement Districts (SID’s) for the following:
Streets
a) Street improvements to Durston Road including paving, curb/gutter, sidewalk, and storm
drainage (unless currently filed with the property).
Intersections
b) Improvements to the intersection of Ferguson Avenue and Durston Road.
c) Improvements to the intersection of Flanders Mill Road and Durston.
d) Improvements to the intersection of Baxter Lane and Davis Lane.
e) Improvements to the intersection of Cottonwood Road and Durston Road.
f) Improvements to the intersection of Baxter Lane and Harper Puckett Road.
g) Improvements to the intersection of Davis Lane and Oak Street.
h) Improvements to the intersection of Babcock Street and Cottonwood Road.
i) Improvements to the intersection of Babcock Road and Ferguson Avenue.
The document filed shall specify that in the event an SID is not utilized for the completion of
these improvements, the developer agrees to participate in an alternate financing method for the
completion of said improvements on a fair share, proportionate basis as determined by square
footage of property, taxable valuation of the property, traffic contribution from the development,
or a combination thereof.
38) Street names must be approved by the City Engineer and Gallatin County road office
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prior to final plat approval.
39) All streets contained within the subdivision shall be within dedicated public right of way
and built to city standards unless an exception is approved with the preliminary plat.
40) Project phasing shall be clearly defined on the infrastructure plans and specifications
including installation of infrastructure.
41) A one foot no access strip shall be recorded on the final plat restricting access for any lots
fronting onto Ferguson Avenue, Baxter Lane and Oak Street.
42) Secondary vehicular accesses will be required with each individual phase of this
development as the project proceeds from one phase to the next.
43) Each phase of the subdivision shall have a minimum of two separate water main feeds.
Single source loops created by phasing will not be allowed.
44) Any existing water or sewer mains that will be relocated with this development are
required to be relocated in a public street right of way or an alley as approved by engineering and
the water/sewer superintendent.
45) Road geometry shall meet the criteria in the City of Bozeman design standards unless a
deviation can be justified.
46) All proposed private utilities to serve the subdivision shall be shown on the public
infrastructure plans and specifications. Any necessary private utility easements that will be
required to serve the subdivision shall be shown.
47) The construction of Ferguson Avenue is required at the time the funding for the east drive
lane and east parking lane has been secured for the street extension, or prior to the lots north of
Oak Street being platted.
48) Any lots within this subdivision that will be served by a publicly maintained lift station
shall pay a surcharge for the ongoing operation and maintenance of the facility.
49) A note on the Conditions and Notes sheet of the plat shall state:
“Water rights for Lots 1 and 2 of Block 25 in phase 7 have not adequately addressed cash
in lieu of water rights. Cash in lieu of water rights or the equivalent water rights must be
transferred to City of Bozeman prior to or at the time of final site plan approval.”
50) The proposed subdivision is located within the following payback districts:
a) Baxter/N. 19th Signal
b) Meadow Creek Sewer
c) Valley West Water
d) Valley West Sewer
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e) Valley West Street
These payback districts must be paid before final plat in accordance with the approved payback
documents.
51) The necessary minimum right of way shall be dedicated with the final plat for the
following streets:
a) Ferguson Avenue (Collector) – 45 feet.
b) Oak Street (Principal Arterial) – 125 feet.
c) Baxter Lane (Minor Arterial) – 45 feet.
d) Flanders Mill Road (Local Street) – 30 feet.
e) Annie Street (Non-standard Local Street) – 74 feet.
f) Harvest Parkway (Non-Standard Local Street) – 74 feet.
All other internal local streets shall be dedicated at a minimum right of way width of 60 feet.
COVENANTS
52) The definition for “Common Area” in Section 1.9 of the property owner’s association
documents shall not include reference to any lands being conveyed to the City of Bozeman or
reference to “Public Park.”
53) A definition of “Public Park” shall be added to Article 1 of the property owners
association documents which includes those parks dedicated to the City of Bozeman. That
definition shall then be used as appropriate in describing duties and responsibilities throughout
the documents.
54) Section 2.1 shall be revised so that the obligations for participation in park, open space,
and storm water maintenance apply to the entire property at the time of filing of the first final
plat.
55) Section 5.2.F shall be revised. A property owners association may not bar or restrict
access to public parks or areas subject to a public access easement.
56) Section 7.3 shall be revised. A property owners association may not restrict access or use
of public streets. Covenants may reference City adopted parking and related standards for public
streets in Chapter 34 BMC or similar reference.
57) Section 8.4 shall be revised to coordinate with fencing dimensions and styles established
with the final Park Master Plan.
58) Section 8.5 as written may not comply with the allowed yard encroachments of Section
38.21.060, BMC. Please verify and correct as needed.
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59) Section 9.2.A shall be revised to recognize the required maintenance obligation for
common spaces of Article 38.38, BMC. All facilities and improvements which are required as a
condition or requirement of platting shall be maintained in good condition.
60) Section 10.3 shall be revised so that the term of the covenants renews until at least such
time as the City releases the property owners association from obligation for maintenance of
common spaces and facilities provided with the subdivision.
61) Section 10.4 shall be revised so that is states that the covenants may not be amended in a
manner that places them out of compliance with Article 38.38, BMC or contrary to the
conditions of approval of the subdivision.
62) Article XIII shall be revised so that references to Gallatin County requirements are
removed. Items D, F, G, J-P may be retained. Other items may be added to advise of
requirements of the conditions of approval such as 404 permit restrictions or City regulations.
DESIGN GUIDELINES
63) Section 2.6 shall be amended to note that the City does not enforce private design
guidelines.
64) Section 3.3 shall be revised to account for the two large multi-household lots and the
Accessory Dwelling Unit lots which are described in the covenants.
65) Section 3.4, please verify the height limitations and whether they will apply to the multi-
household lots.
66) Section 3.5, the proposed text is allowed for primary dwellings; however the City
discourages minimum home sizes. The text also would be in conflict with maximum allowed
Accessory Dwelling Unit size and likely would conflict with the achievable size for the
townhome lots. The text shall be revised to avoid these conflicts.
67) Section 4.1, review and adjust if needed to account for the alley loaded lots on Block 5.
68) Section 4.8, revise and include reference to City of Bozeman regulations for on-street
parking.
69) Section 4.10 appears to conflict with the City’s adopted lighting standards in Section
38.23.150, BMC. Revise to remove conflicts.
SECTION 4 - CODE REQUIREMENTS REQUIRING PLAT CORRECTIONS
Actions by the Commission to approve or disapprove requested variances may resolve some of
the identified required corrections. A revised plat may be required to reflect those actions and
changes to these requirements prior to final action on the subdivision.
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A. The Final Park Plan(s) shall include all those materials required by Section
38.41.070.A.4, BMC.
B. Section 38.23.080.D. Lot 4, Block 12 may not encroach upon the detention facility in
Open space J.
C. Section 38.23.110. The location of mailboxes shall be coordinated with the City Engineering Department and U.S. Postal Service prior to their installation.
D. 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 permits (i.e., 310, 404, Turbidity exemption, etc.) shall be obtained prior to plan and specification
approval.
E. Section 38.243.040 requires pedestrian rights of way to be constructed as standard City
sidewalks. Those sections outside of the common open space used to satisfy parkland requirements, e.g. OS O, N, M, and T used for block length compliance, shall be depicted and constructed in accordance with the Section.
F. Any alteration or realignment of the existing ditch(es) within the development shall
follow the guidelines within UDC 38.23.060, more specifically UDC 38.23.060.D.3.
G. BMC Section 38.41.080.2.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 retention/detention 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.
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.
SECTION 5 - RECOMMENDATIONS AND ACTIONS
The Development Review Committee (DRC) found that the application was sufficient for review
on May 9, 2014. On May 21, 2014 they recommended approval with conditions and code
requirements to the Planning Board and City Commission.
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The Recreation and Parks Advisory Board subdivision review committee considered the
proposed park master plan and park dedication on May 9, 2014. They recommended approval of
the application as submitted and conditioned including use of the alternative compliance
alternative for provision of 6% of the required parkland area as described in this report.
The Wetlands Review Board considered the application on May 7, 2014. They recommended
approval of the application as it was submitted and conditioned, including approval of the
variance for the encroachment into the watercourse and wetland setback.
The Planning Board conducted their public hearing on June 17, 2014. There was no public
comment at the hearing. The Planning Board considered each of the requested alternative
compliance or variance requests. As shown in the minutes and resolution they recommended
approval of each of the requests. They recommended a change to the required condition 14
regarding fencing of open spaces to provide a greater degree of coordination along park and open
space locations. Condition 14 has been modified to respond to this direction to revise. They also
recommended approval of the subdivision as a whole. Minutes and a recording of the meeting
are available.
The City Commission held a public hearing on July 7, 2014. The Staff gave a presentation of the
project including a description of each of the alternative compliance or variance requests. No
public testimony was received at the hearing. Having heard and considered all applicable
materials and considered public testimony they found the required criteria had been met and gave
approval of the preliminary plat.
SECTION 6 - STAFF ANALYSIS AND FINDINGS
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, and plans, public comment, and all other materials available during
the review period. Collectively this information is the record of the review. The analysis is a
summary of the completed review.
Applicable Subdivision Review Criteria, Section 38.03.040, BMC.
In considering applications for subdivision approval under this title, the advisory boards and City
Commission shall consider the following:
1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and
Platting Act
The application contains the necessary survey elements. Recently, the State of Montana has
revised the requirements for final plats. One of these requirements is a separate sheet for notes,
comments, and conditions of approval. The conditions of approval require provision of this
sheet. See Condition 4. The project will likely be platted in phases over several years. Each final
plat must show compliance with the individual survey requirements including monumentation,
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proper dimensions, and closure of survey boundaries. Signature by the surveyor will be provided
with each final plat. Conditions 2-6, 31-33, 36, 49 address the contents of the final plats.
2) Compliance with the local subdivision regulations provided for in Part 5 of the
Montana Subdivision and Platting Act
There are several conditions of approval relating to the preparation of the final plat. See
Conditions 2-7. Any items not installed as necessary prior to a final plat will be the subject of an
improvements agreement with associated security. This may take the form of a plat note as
shown in Condition 5. Additional conditions are described in following sections of this report.
Those conditions are necessary to fully satisfy the adopted standards of the City applicable to
this application. The installation of subdivision infrastructure is subject to Chapter 38.39, BMC.
See Conditions 12, 15, 16, 20, 22, 23, 26-30, 36, 42-47, 51.
The parcel is less than 160 acres. Therefore, to comply with the requirements of the Montana
Subdivision and Platting Act the entire area must be included with each final plat. However, as a
phased subdivision, not all of the improvements necessary to develop individual lots will be
installed at once. In order to provide notice of the pending requirement for infrastructure
completion a note is required to be provided with each final plat. See Condition 5. This condition
will serve the role of a guarantee of performance for future development. This protects potential
buyers without causing a financial burden on the developer.
Article 38.38 requires various supplementary documents which accompany a plat. These set up
the property owner’s association to take maintenance responsibility for parks and stormwater.
There are certain required contents as outlined in the article but most of the material is at the
discretion of the developer. If covenants and design guidelines are adopted they must conform to
the zoning standards of the City. Covenants and design guidelines are proposed with this
development. Conditions 52-69 address these documents. The covenants require: corrections of
points of conflict with the municipal code; coordination between the covenants and conditions of
approval; and or direct correction of errors in the text.
3) Compliance with the local subdivision review procedures provided for in Part 6 of
the Montana Subdivision and Platting Act
The application has been properly noticed, reviewed according to the required advisory bodies
established by the Bozeman Municipal Code, and the required public hearings are scheduled.
The proper review bodies have conducted their review and their recommendations are included
with this report. A pre-application review was received and reviewed and comments provided.
The application has been deemed acceptable and adequate for review.
Several variances were identified and were included in the notices to the public and were
addressed in the actions by the Planning Board and City Commission. The conditions necessary
to ensure that this application complies with required review procedures are included in Sections
3 and 4 of this report and are identified with each variance.
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The final plat to be recorded for each phase will require review to ensure that all requirements of
the law and conditions of approval have been met. Installation of required infrastructure,
dedication of easements and lands, and revision to covenants and design guidelines will be
verified at that time. Failure to comply with conditions of approval will preclude approval. See
Conditions 2 and 35.
4) Compliance with Chapter 38, BMC and other relevant regulations
Lot dimensions, street widths, and similar development standards are generally met by the
subdivision. Specific items are the subject of variance requests or alternative compliance
proposals as described in Section 2 of this report. The western boundary of Lot 10, Block 1 is an
odd configuration which is contrary to Section 38.23.030. Condition 34 requires the boundary to
be revised.
The application as proposed will require permits from the Gallatin Conservation District,
Department of Environmental Quality, and the US Army Corps of Engineers. Section 4,
Condition G requires these permits to be obtained prior to beginning any work.
Plan and specification review is required for all public infrastructure improvements prior to the
commencement of any work. Detailed compliance with relevant standards will be verified at that
time.
5) The provision of easements to and within the subdivision for the location and
installation of any necessary utilities
The necessary easements for utilities are provided on the preliminary plat and are required to be
established with the final plat for each phase of the development. Depicted dimensions appear to
be adequate to meet requirements. Condition 33 requires the provision of an adequate easement
for the ditch along Baxter Lane.
6) The provision of legal and physical access to each parcel within the subdivision and
the notation of that access on the applicable plat and any instrument transferring the
parcel.
Each lot within the subdivision has frontage on a proposed public street which is adequate to
provide legal and physical access. The streets internal to the project connect to existing local,
collector, and arterial streets on the perimeter of the development. Street right of way will be
dedicated to the public with the recording of each final plat per Condition 51. Prior to the
recording of each final plat the necessary street improvements to provide physical access must be
installed or financially guaranteed per Article 38.39, BMC. The street frontage for each phase is
required to be provided concurrent with or prior to that phase.
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Primary Subdivision Review Criteria, Section 76-3-608
1) The effect on agriculture
The site has been in production for hay and animal feed. The site is annexed within the City of
Bozeman. Development of the site for housing will remove it from agricultural use. The property
is largely surrounded by urban uses and the last remaining adjacent unannexed land is expected
to be annexed shortly. Removal from production will not damage a viable farm operation.
Development at urban densities will lessen development pressure on agricultural lands elsewhere
in the vicinity.
2) The effect on Agricultural water user facilities
The project will relocate an agricultural water user facility located along Baxter Lane. This is
part of the Farmers Canal facility. The widening of Baxter Lane would cover the facility. A new
easement is being provided with the relocation so the beneficiaries of the ditch have legal access
to convey the water and maintain the ditch. Conditions 33 and F address the relocation. State law
requires the ditch to retain its function after the relocation.
The natural watercourse, unnamed tributary to Baxter Creek (UTBC), which crosses and leaves
the site carries some irrigation water which previously serviced the subdivision area and which
eventually discharges to Baxter Creek and continues north. The relocation will make a
modification to the route of the watercourse but the intersection point with Baxter Creek will
remain in near proximity and water flows will still reach the stream. No impact on agricultural
water users is expected from this change.
There is an existing ditch along the west side of Flanders Mill Road. Flanders Mill Road must be
moved to the west and expanded with development of this project and adjacent property to the
west. The ditch carries overflow water which cannot be taken in and carried by the Maynard
Border irrigation pipeline which has its intake near the intersection of Durston Road and
Flanders Mill Road. It also carries substantial intermittent stormwater flows into Baxter Creek.
The overflow has already been placed into a pipe along portions of Flanders Mill Road in
conjunction with the development of the Meadowlark Elementary School. The relocation of
Flanders Mill road to lie within its actual existing easement will move it to the west. This will
require placing the irrigation/stormwater flow into a pipe.
The relocation of the watercourse and proposed changes in wetlands, including Condition 19,
will remove all natural flow from the area along Flanders Mill Road. This will enable the ditch to
be placed within a pipe without complications which would arise if the ditch also carried natural
flow and was therefore classified as a stream. Piping the ditch will reduce seepage losses from
irrigation water which will benefit downstream users by reducing water loss. The additional
water may also provide modest additional flow into Baxter Creek which will support habitat for
fish and adjacent plant and animal communities.
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3) The effect on Local services
Water/Sewer – Municipal water and sewer are available to this site. The proposed subdivision
will extend the necessary local mains to provide service to individual lots. The subdivision is
within existing payback districts for water and sewer. With each final plat the appropriate
reimbursement is required to be paid to the City for distribution to the original installer of the
infrastructure for which the payback was established. See Condition 50.
Cash-in-lieu of water rights will also be required with each final plat. There is some uncertainty
regarding the final density allowed on the two large multi-household lots. Therefore, an advisory
note is required to be placed on the final plat to inform future buyers that additional funds may
be required with development of those lots. See Condition 49. The subdivision site is served with
sewer through a lift station. A surcharge for maintenance costs attributable to the lift station will
be applied to the sewer bills of future residents. This prevents other sewer system users from
being billed for services they do not receive. See Condition 48.
The water and wastewater treatment plants have adequate capacity to serve this development.
The impacts of the development on the water and wastewater systems will be mitigated by the
conditions of approval, future impact fee payments, provision of water rights or cash-in-lieu
thereof, and the future utility charges to residents. The City’s design manual provides the specific
guidance for detailed infrastructure design. Conditions 35, 40, 43, 44 address details necessary
for the correct preparation and review of infrastructure plans.
Streets – Two variances to the Unified Development Code, BMC relating to streets have been
requested. See the subdivision variance review section of this report for discussion on the
variances. The City Commission concluded d that the variances meet the required criteria.
Condition 38 requires that the street names be approved prior to the approval of the final plat.
This prevents confusion with the 911 dispatch system and therefore is necessary for the public
welfare.
As part of the street infrastructure lighting must be installed. Conditions 25-28 address lighting.
The physical installation of the lights is done by the developer. A special improvement lighting
district (SILD) is formed to provide for the maintenance and operation of the lights over time.
Condition 28 requires the use of LED lighting fixtures. This does not modify the pole heights or
similar physical performance features. LED street light fixtures have been tested by the City and
found to have better performance with lower power consumption and less frequent failures and
required maintenance than the standard lights. Therefore, as the residents of the subdivision will
be responsible for paying for the ongoing expenses of the lighting, it is appropriate for the City to
ensure that the most efficient and best performing lighting is installed to reduce ongoing costs
and ensure that the level of service is maintained.
The special improvement lighting district must be created prior to the final plat. It is inefficient
and can raise operational costs which are borne by the lot owners for multiple small lighting
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districts to be created. As there is a single preliminary plat, Condition 26 requires the entire
subdivision to be included within a single lighting district. It also allows a phasing of the charges
to reflect that much of the area within the district may be undeveloped while the phases of
development proceed. Condition 25 addresses the timing for when the application for the district
must be submitted in order to have the district established coincident with the approval of the
first final plat. The required submittal materials will enable proper notice and calculation of costs
to be provided for Commission consideration of the request to create the SILD.
The application includes a request to use the alternative compliance option of Section 38.23.040
to have to have block lengths greater than 400 feet for Blocks 13, 15, 16, 17, 20, 22 and 24. The
relevant portions of the section are quoted below.
“B. Block length. Block length shall not be designed, unless otherwise impractical, to be
more than 400 feet in length or less than 300 feet in length. Block lengths can be longer
than 400 feet if necessary due to topography, the presence of critical lands, access
control, or adjacency to existing parks or open space. In no case shall a block exceed
1,320 feet in length.”
“D. Rights-of-way for pedestrians. Rights-of-way for pedestrian walks, not less than ten
feet wide, shall be required where deemed necessary to provide circulation or access to
parks, open space, schools, playgrounds, shopping centers, transportation, and other
community facilities. In addition, no continuous length of block shall exceed 600 feet
without intersecting a street or pedestrian walk. Pedestrian walks shall also be installed at
the end of culs-de-sac where deemed appropriate.
1. Yards adjacent to pedestrian rights-of-way less than 30 feet wide shall be treated as
corner side yards. Yards adjacent to pedestrian rights-of-way 30 feet wide or greater shall
be treated as side yards;
2. The pedestrian walks shall be maintained by the adjacent property owner or by the
property owners association. The party responsible for maintenance of pedestrian walks
shall be identified in the preliminary plat application; and
3. Pedestrian walks shall be constructed as a city standard sidewalk, and the provisions of
section 38.24.080 shall apply.”
Ferguson Avenue is a collector street which has a restriction on access points per Section
38.24.090, BMC. Condition 41 requires a one foot no access strip along the arterial and collector
frontages. There is no ability to go east of Ferguson for the proposed blocks north of Oak Street.
The Gallatin County Regional Park occupies the east side of Ferguson Avenue the entire distance
from Oak Street to Baxter Lane. The proposed Field Sports Park likewise blocks the west side of
Flanders Mill from Oak to Baxter Lane. All of the Blocks for which the variance is requested are
north of Oak Street.
The UTBC provides a N-S corridor stretching the full length of the subdivision. Street crossings
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of the UTBC are provided for all collectors and arterials within or adjacent to the subdivision and
adjacent to any public parks, i.e. Tanzanite Drive. An alternative is in Section 38.23.040.D to
provide for pedestrian connections in lieu of a street when it is necessary to divide a block length
but it is undesirable to do so with a full street. The proposal includes such pedestrian right-of-
ways in all required locations. An example of this from Sheet 2 of the preliminary plat is shown
below. The orange line is the pedestrian walk; the green area is the pedestrian right of way.
The municipal code requires blocks to not exceed certain lengths in order to provide adequate
connectivity for pedestrian and vehicular circulation (including emergency vehicles). It also
allows for some flexibility in the application of the standard recognizing that there are places
where streets may not be desirable. Pedestrian connectivity has been provided in all necessary
locations to meet the standard. Four streets connect E-W between Ferguson Avenue and Flanders
Mill Road. Connection of Forage Drive would provide a fifth connection. The connection would
divide Open Space T approximately in half.
The City has prioritized the protection of water quality, wetlands, and pedestrian travel. The
additional street would intersect with all three for a modest beneficial increase in vehicular
connectivity. In this circumstance, it appears that on balance the public benefit is best served by
providing a pedestrian connection rather than a vehicular one. The City Commission concluded
the criterion is met. The UTBC is a natural stream which passes N-S through the development.
Presence of watercourse is a listed potential condition unique to the property. The applicant is
making significant efforts to improve the character of the UTBC. Additional stream crossings
may be detrimental to the designed wetlands enhancements. As described there are a variety of
means to address block length compliance. The proposed alternatives shown appear to meet the
intent and spirit of the chapter. The Staff concluded the criterion is met and recommended
approval of the alternative compliance approach. The City Commission accepted the
recommendation and approved the longer block lengths after finding the criteria were met.
Conditions 6, 7, 12, 15, 17, 54, 59, 60 and E apply to the block length issue.
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Ferguson Avenue is a key element of the development providing access to the development north
of Oak Street. It is also the dividing line between the development and the Gallatin County
Regional Park. The installation of this section of Ferguson Avenue will have a positive effect on
existing congestion at the intersections of Davis Lane and Baxter Lane and Ferguson Avenue and
Durston Road. The additional link will connect the Chief Joseph Middle School to points south
without having to go through the congested intersection at Baxter and Davis Lanes. The City has
Ferguson Avenue listed on the transportation impact fee capital improvements program. This
provides funding to install the road at its final configuration which is less disruptive and a cost
savings. The City is looking for ways to pay for the east side of the road adjacent to the Regional
Park. If funding can be found the Ferguson link can be funded sooner. In no case will it be
allowed to wait past the development of the phases north of Oak Street. See Condition 47. The
City Commission approved the requested variance to allow the intersection of Ferguson and
Durston Road to function at less than level of service C until Ferguson Avenue is constructed.
There are two streets with unusual cross-sections within the development. Annie Street and
Harvest Parkway Road are both 74 foot cross sections. The additional 14 feet of width provides
for medians. Annie Street already has this width established on both the east and west of this
development. Annie Street connect to the northern boundary of the area between Meadow Lark
Elementary School and the possible next high school site. Medians are known to slow traffic.
Harvest Parkway Road is an E-W connection between Ferguson Avenue and Flanders Mill Road.
It circles the proposed Park 2. Therefore, there is a safety benefit of controlling speeds on both of
these streets. The City Engineer accepts the proposed design but the maintenance of the median
is the responsibility of the property owner’s association. See Condition 16.
Police/Fire – The site is within the City of Bozeman and served by the municipal fire and police
departments. The closest fire service is from Station 3 which is located less than 1 mile away and
has direct arterial street access in two directions. The police patrols presently cover this area
when providing service to the existing Baxter Meadows and Oak Springs developments.
Mitigation of impacts on fire services will be mitigated with the payment of the fire impact fees
due with building permits for new homes and the contributions to the general fund.
Stormwater – The application depicts a variety of stormwater facilities to address this issue.
Final sizing and design will be evaluated during the plan and specification review prior to
construction. In order to provide adequate maintenance for the stormwater system all facilities
which are on privately held land must be located within a public stormwater easement per
Condition 25. Stormwater which discharges to surface waters must first be treated to remove
oils and suspended solids per the City’s adopted stormwater controls and Condition 24. This
includes both temporary facilities during the construction of the subdivision and permanent
facilities. Stormwater facilities located within parks may not count towards park dedication
requirements per municipal code Section 38.27.080. Stormwater facilities must be reviewed for
compliance as part of the plan and specification review per Conditions 35, 40, and K.
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Parklands - The application proposes creation of 292 lots for single household residences, and
two multi-household lots of 5.395 acres in net size. Collectively, the minimum parkland
requirement is for 8.76 acres plus1.2948 acres for a total of 10.0548 acres of park land or its
equivalent. Additional cash-in-lieu of parkland may be required from the multi-household lots at
the time of development up to a maximum of the equivalent of an additional 0.6474 acres per
Section 38.27.020. Issues relating to parks are addressed by Conditions 6-15, 17-8, 19-22, 52-55,
57, and 60-61.
The park master plan included with the development includes a breakdown of the park and open
space areas to be provided with each phase on page 4. The area within a public park which is
used for stormwater facilities is not counted towards the parkland dedication requirement. Both
Park 1 and Park 2 have such facilities. Deducting the stormwater area from the dedicated park
area provides an area of 9.4568 acres or 94% of the total required park area.
In addition to the dedicated parks, the development includes an additional 23.4705 acres of
privately held open space. This includes open space along the relocated water course, open
spaces used for division of blocks to meet block length requirements, stormwater facilities, and a
perimeter open space within which a Class I sidewalk alternative trail is located. Subtracting
stormwater facilities and a minimum perimeter trail easement equivalent leaves 16.4606 net
acres of open space. Per Section 38.24.110 areas used for transportation trails are not used for
calculation of parkland. Per Section 38.27.080.D stormwater control facilities within parks do
not count towards meeting park requirements. The applicant has indicated that they will include
a public access easement over the perimeter trail easement and the central watercourse area.
Condition 2 requires them to follow through with this approach.
The central watercourse area is 12.5674 acres and contains a Class II trail which runs nearly the
entire N-S length of the development. Several additional trails cross in an E-W direction and
provide connections between the development and the existing regional park and the proposed
field sports complex. Adding the net park area and the net open space area gives a total reserved
area for recreational uses of 25.9174 acres. This is 258% of the required minimum area to be
provided to meet the recreational needs of the residents of the development.
Section 4.4 of the application includes a request for an alternative means of meeting the parkland
dedication requirement. This is to meet the remaining requirement of 6% of the minimum
dedicated park space not included within Park 1 and Park 2. Section 38.27.100, which
implements a section of state law regarding park dedication, specifically authorizes the
Commission to waive some or all of a park dedication requirement when one of the seven
alternatives has been met. Normally, the City does not waive parkland requirements. However,
in this case the applicant has provided additional open space with developed trails and public
access far in excess of the remaining 0.598 acres of parkland. This remains true even after
deducting any space used for stormwater facilities or transportation pathways.
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In determining that the intent and purpose of the provision of parkland standard had been met
and that it would be equitable to allow the waiver under Section 38.27.100.A.2, Staff and the
Recreation and Parks Advisory Board subdivision committee discounted any areas used for
stormwater and minimum circulation requirements, e.g. sidewalk replacement on the perimeter.
None the less, the intent and purpose appears to have been well met. This is bolstered by the near
proximity of substantial existing and proposed regional recreational facilities and multiple
neighborhood parks within and adjacent to the development.
At the Planning Board public hearing there was extensive discussion among the Board regarding
the adequacy of public access to the open spaces. Section 38.27.060 requires parks to have a high
degree of street frontage to provide visual and physical access to the parks and to provide
parking areas. The private open space which will be used to justify the waiver of park land
dedication is primarily long narrow features along the stream. There are homes along most of the
N-S sides. The discussion revolved around the question of to what degree lands used to justify a
park land dedication waiver should follow the standards applicable to dedicated park land. The
individual street frontages range from 97 to 281 feet in width. The pedestrian right-of-way for
over-length blocks are 30 feet wide.
The area with the greatest degree of street frontage is the location where Park 2 is just across the
street from the N-S open space. Harvest Parkway crosses the open space in that location.
The City Commission accepted the proposed alternative compliance offered by the applicant.
Condition 8 requires dedication of all the area used
to meet the parkland dedication requirement for the
entire subdivision with the initial platted phase.
This includes the common open spaces which are
along the relocated watercourse. This dedication is
required by easement. The easement will be
converted to a full dedication for the area of
parkland within the final plat of each phase.
Improvements within each recreational area will be
deferred until platting of the final plat for each
phase. Future phases will then draw against this
bank of land to comply with their individual
requirements. This coordinated approach is
required in order to assure the completion of the
coordinated design of the subdivision even if
portions are transferred to other developers.
The Class I trail along Flanders Mill Road should
stay in the same position as it passes through Park 1
as it does on other areas along the right of way.
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This will require some minor adjustments to the layout of the trail and the internal trails in Park
1. The image to the right shows a conceptual location which would comply with Condition 22.
The Class I trail is shown in orange.
The Park plan has a series of drawings depicting park designs. This includes a suggested
common fencing style for location along the boundaries of the open spaces used to meet
parkland requirements. Section 38.23.130 limits the height of fences adjacent to linear parks. The
central watercourse area is not a linear park although it has many of the same characteristics. A
public access easement will be provided to allow use of the trail by the public. Therefore it is
appropriate to have a similar limitation on fencing height. Fencing is desirable to contain animals
and provide clear ownership boundaries but overly high fences damage the appearance of the
open space. Fencing adjacent to linear parks is limited to 4 feet in height by Condition 14.
Condition 7 requires a certificate of transfer of improvements to enact the transfer of the open
space to the proposed homeowners association so there is no confusion over who controls what
elements of the development. Conditions 10-11 require all of the development phases to
contribute to the maintenance of the facilities they will benefit from. The condition is necessary
to account for the multiple phased nature which may result in plats being recorded over a multi-
year time span. This will also prevent a loss of coordination and continuity of operation is the
development changes ownership before being completed.
Park 1 has less than 100% frontage on a public street. The proposed layout meets the alternative
frontage options allowed by Section 38.27.060. The replacement of value will be provided by
developing the exercise stations within Park 1 which will increase its utility for the park users.
Condition 13 coordinates the timing of these improvements.
As part of the expired Diamond Estates project, an easement was provided for future parkland.
This easement remains and is located south of Oak Street between Flanders Mill Road and
Ferguson Avenue. The applicant proposes the City release the eastern 310 feet of that easement
to be developed as Blocks 11 and 12, along with open space and other facilities be provided as
described under this section of the staff report. This would be done through a standard release
and reconveyance of easement which would be timed to coordinate with the final plat and
recording of the easement for parkland required in Condition 9.
The City Commission approved the release and reconveyance of the easement to the land owner.
The relocated park areas will be provided with the initial final plat for the project.
4) The effect on the Natural environment
There is little large vegetation on the property. The site has several weed infestations which must
be controlled in accordance with the approved noxious weed plan. The site is vegetated with
mostly grasses and small crops. A few small trees are located in the area of the future Park 1. A
stand of larger trees exists at future Open Space J which includes a detention pond. Some of that
stand extends onto the adjacent proposed lot. Removal of the trees on the lot is likely. The large
stand of cottonwoods along the southern portion of Flanders Mill Road will probably be removed
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as the roadway is shifted west. The piping of the ditch would also cut off the majority of their
water supply which would likely cause them to die out over time and not reestablish.
The subdivision proposes substantial changes to wetlands and watercourses on site. These
changes will create higher quality wetlands and associated habitat. The new watercourse setback
must be planted with a variety of trees and woody and herbaceous plants suitable to wetland
areas. The modified wetlands are subject to a five year monitoring period by the US Army Corps
of Engineers to ensure that they are constructed and fully established per the issued wetland
permit. The Wetland Review Board reviewed the proposal and recommended favorably. The
improved watercourse and wetland characteristics are expected to improve habitat quality. As the
trees mature they will provide nesting and perching areas. No endangered or threatened species
are known to frequent the site.
The proposed area will provide significant trail connections to encourage and facilitate walking
and bicycling. The extension of Oak Street and Ferguson Avenue will provide key links in the
arterial and collector network which can shorten travel distances and relieve congestion at key
intersections in the northwest quadrant of the community. Shorter travel distances and improved
pedestrian accessibility generally are favorable for the natural environment.
The area is known to have high groundwater a note will be placed on the plat to advise future
buyers of this issue. See Condition 31.
5) The effect on Wildlife and wildlife habitat
As discussed above, the effects are considered to be generally favorable although there will be
some short to medium term loss of some existing large trees on the site. See also the discussion
under the zoning variance review criteria for the wetland setback variance from Section
38.23.100, BMC. Removal of the mature cottonwood stand along Flanders Mill will likely
reduce perching areas for hunting raptors. Further, transition of the area to urban uses will also
reduce the utility of the area as a feeding area.
6) The effect on Public health and safety
With the conditions identified in the staff report no negative impacts on public health and safety
have been identified. Adequate circulation for emergency vehicles is provided, services are
available within identified response times, and provision has been made for safe motor and
pedestrian circulation. Public and private utilities have either been installed or can be readily
extended to provide services. A variance has been requested from the required level of service
for the intersection of Durston Road and Ferguson Avenue. Please see the discussion under the
variances section of this report.
Preliminary Plat Supplements
A subdivision pre-application plan review was completed by the DRC on January 8, 2014. With
the pre-application plan review application, waivers were requested by the applicant from
Section 38.41.060 “Additional Subdivision Preliminary Plat Supplements” for several of the
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standard preliminary plat supplements due to the nature of this previously platted/developed
property. Staff offers the following summary comments on the supplemental information
required with Article 38.41, BMC.
38.41.060.A.1 Surface Water
As described above, the proposed subdivision modifies two surface water elements. These are
the unnamed tributary to Baxter Creek and the irrigation facilities along Baxter Lane and
Flanders Mill Road. The existing and proposed locations have been identified and incorporated
within the subdivision design. Any piping of surface water will be sized as necessary to carry
flood flows.
38.41.060.A.2 Floodplains
No floodplains have been mapped. The required and depicted setback from the unnamed
tributary will provide adequate area to carry any floodwaters.
38.41.060.A.3 Groundwater
It is known that there is high ground water underneath the site. Some of the on-site wetlands are
fed by the groundwater which is recharged by adjacent irrigation facilities. It is expected that the
piping of the irrigation return flow ditch along Flanders Mill may slightly lower the groundwater
levels. Even so, they are expected to remain high. Condition 31 requires that an advisory note be
included on the Conditions and Notes sheet of the final plat so that purchasers are made aware of this limitation. Due to the high ground water a soils report will be required with building permits
to ensure that foundations are adequate to support the proposed structure.
38.41.060.A.4 Geology, Soils and Slopes
The site is mildly sloping to the north. The soils are of mixed character given the size of the site.
The proposed realignment of the unnamed tributary to Baxter Creek is placed such that the new location aligns with the existing hydric soils. This should aid in establishment of the proposed wetland enhancements. No unusual topographic features exist and no unusually cuts or fills are
proposed. All of the Bozeman area is in an active earthquake zone and building codes are
implemented accordingly which lessens the related risks.
38.41.060.A.5 Vegetation
Addressed under the primary review criteria. 38.41.060.A.6 Wildlife
Addressed under the primary review criteria.
38.41.060.A.7 Historical Features
There are no known historical features on the site.
38.41.060.A.8 Agriculture
Addressed under the primary review criteria. 38.41.060.A.9 Agricultural Water User Facilities
Addressed under the primary review criteria.
38.41.060.A.10 Water and Sewer
Addressed under the primary review criteria.
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38.41.060.A.11 Stormwater Management
A stormwater control plan was included with the application. A formal SWIPP will be required
by the state due to the size of the disturbance. This will be coordinated with the relocation of the
watercourse and the permitting necessary for that work. Stormwater ponds are depicted with the correct sizes and locations. A final plat and details will be reviewed and approved with the plans and specifications for the infrastructure.
38.41.060.A.12 Streets, Roads and Alleys
Addressed under the primary review criteria.
38.41.060.A.13 Utilities
The site includes an existing electrical substation. The subdivision creates an independent lot for this facility. No changes to the substation are proposed as part of this subdivision. A large high voltage power line connects to this substation. The power line generally follows the alignment of
Oak Street which has a slightly wider right of way to accommodate the large power poles. A
second above ground facility of lesser size parallels Flanders Mill Road. The applicant is
working with Northwestern Energy to relocate some poles which would conflict with street intersections. Water and sewer extensions will be placed within future dedicated public streets. The lots depict
easements for placement of Essential Services Type I to service each lot. The easements will be
granted with the Certificate of Dedication on each final plat.
38.41.060.A.14 Educational Facilities
The Bozeman School District’s review comments indicate they can accommodate the additional students expected from this development. The site is adjacent to the Meadowlark Elementary
School and the purchased site for the second high school The site is within .75 miles of the Chief
Joseph Middle School. Pedestrian facilities connecting to the schools will be installed with
development of the subdivision.
38.41.060.A.15 Land Use
The proposal is to develop residences, open spaces and parks consistent with the approved
zoning. The application as proposed meets the required residential density of Section 38.08.080.
The existing substation is properly located within the Public Lands and Institutions zoning
district.
38.41.060.A.16 Parks and Recreation Facilities
See discussion above under Local Services.
38.41.060.A.17 Neighborhood Center Plan
The two dedicated interior parks One and Two satisfy the requirements for neighborhood
centers.
38.41.060.A.18 Lighting Plan
Subdivision or street lighting is required as part of minimum improvements. Conditions 26-29 address the issue. See Appendix H of the application for the lighting plan. See discussion under
the primary review criteria.
38.41.060.A.19 Miscellaneous
Supplemental information waived by the DRC.
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38.41.060.A.20 Affordable Housing
Supplemental information waived by the DRC. The Workforce Housing Ordinance, Article
10.08, BMC, has been suspended by the City Commission.
Subdivision Variance Review Criteria, Section 38.35.070, BMC
The applicant requested five variances as part of this subdivision application.
The City has two forms of variances, those for subdivision standards and those for zoning
standards. Section 38.35.010, BMC describes when those two apply respectively. Section
38.35.070 contains the review criteria for subdivision variances.
The subdivision variances requested are:
1) Section 38.24.060.B.4 Street Improvement Standards - Variance for intersection level of
service at Durston Rd and Ferguson Ave to be less than level C at time of final plat for some
phases of the subdivision.
2) Section 38.24.080 Sidewalks – To not install a concrete sidewalk along Flanders Mill Road,
Baxter Lane, and Ferguson Avenue. To install a Class I asphalt trail in an adjacent public right of
way easement.
Review criteria. Per MCA 76-3-506, a variance to this chapter must be based on specific
variance criteria, and may not have the effect of nullifying the intent and purpose of this chapter.
The city shall not approve subdivision variances unless it makes findings based upon the
evidence presented in each specific case that the required criteria have been met. The criteria for
each variance are shown within the analysis for that variance.
Subdivision Variance Request 1) Section 38.24.060.B.4 Street Improvement Standards -
Variance for intersection level of service at Durston Rd and Ferguson Ave to be less than level C
at time of final plat for some phases of the subdivision.
The traffic study submitted with the application indicates that the intersection of Ferguson
Avenue and Durston Road is presently operating at “D”, a less than acceptable level of service. It
also indicated that the construction of the segment of Ferguson Avenue between Baxter Lane and
Oak Street would cause the failed condition to be corrected. The phasing of the subdivision
begins in the SE corner of the development. The segment of Ferguson Avenue to be constructed
is adjacent to Phase 5 of the development. The extension of Oak Street with Phase 4 will also
improve conditions by providing a secondary route which can avoid that intersection for E-W
traffic. The phases are not sequenced by year and more than one may be undertaken at a time.
Condition 47 requires that Ferguson Avenue be constructed either with any lots north of Oak
Street or sooner if the City can arrange funding for the non-project share of the costs. Presently
the extension of Ferguson Avenue is listed on the transportation impact fee CIP. This leaves the
eastern side local share of the costs to be met. The improvement of the intersection with a signal
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or other active control is listed for funding in fiscal year 2017 as is widening of the section of
Durston Road between Fowler Avenue and Flanders Mill Road.
The present intersection is operating at a level of service D and E for the northbound leg of the
intersection. The intersection was recently changed to a four way stop to alleviate excessive
delay for some movements. There is not an identified intermediate adjustment similar to the stop
signs which would be applied in the short term.
Approval of the variance will enable the subdivision to move forward. Denial will require the
first final plat to wait either until the construction of the segment of Ferguson Avenue from Oak
Street to Baxter Lane or until the intersection of Durston Road and Ferguson is signalized which
is planned to occur in Fiscal Year 2017.
1. The granting of the variance will not be detrimental to the public health, safety, or general welfare, or be injurious to other adjoining properties;
Three corners of the intersection of Ferguson Avenue and Durston Road have already been
developed. The NW corner is owned by a separate entity from the developer. The proposed
subdivision is not immediately adjacent to the intersection. Stop signs are in place on all legs to
provide a gap in traffic for pedestrian crossings. The City is funding additional installation of
sidewalks along the southern side of Durston Road which will improve pedestrian circulation in
the area. There will be designated crosswalks on all sides including the north which connects to
Meadow Lark Elementary school.
The primary effect of the failed level of service is a slight increase in wait time at the
intersection. It does not appear that the granting of the variance would be detrimental or
injurious. The City Commission concluded the criterion is met.
2. Because of the particular physical surroundings, shape or topographical conditions of the
specific property involved, an undue hardship to the owner would result if strict
interpretation of this chapter is enforced;
The City is planning on placing intersection control and widening Durston Road in the near
future. The work is expected in fiscal year 2017 which is three years from now. Allowing the
application to proceed also provides the possibility of a second solution which is the extension of
Ferguson Avenue as described above. Condition 47 requires that work to occur prior to its
adjacent phase if the City can obtain the necessary remaining funds for the work. The question is
more one of timing than character of improvements. There being no identified interim solution it
appears that placing the burden on the developer entirely would create an undue hardship when a
solution under the control of the City is available in the middle term. The City Commission
concluded the criterion is met.
3. The variance will not cause a substantial increase in public costs; and
If the City required the developer to construct the signal the developer could seek reimbursement
from the City for capacity expanding costs. Breaking the widening and signalization of Durston
into two projects would likely increase public costs due to two sets of design, mobilization, and
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traffic control expenses rather than one. Therefore, it appears the variance does not raise public
costs. The City Commission concluded the criterion is met.
4. The variance will not, in any manner, place the subdivision in nonconformance with any
other provisions of this chapter or with the city's growth policy.
Staff has not identified any other non-compliance caused by the variance. The City Commission concluded the criterion is met.
Subdivision Variance Request 2) Section 38.24.080 Sidewalks – To not install a concrete
sidewalk along Flanders Mill Road, Baxter Lane, and Ferguson Avenue and instead install a
Class I asphalt trail in an adjacent public access easement.
“A. General. City standard sidewalks (including a concrete sidewalk section through all
private drive approaches) shall be constructed in all developments on all public and private
street frontages, except for alleys. The requirements of the city design standards and
specifications policy and the city modifications to state public works standard specifications
shall apply.”
The applicant is proposing to not construct the standard sidewalk within the right of way and
instead to construct a Class I asphalt trail located within a public access easement adjacent to the
right of way. This applies only to the three exterior perimeter streets. All internal streets will
have standard location sidewalks. In place of the standard sidewalk the applicant proposes to
construct a Class I trail within a public access easement adjacent to the public right of way for
Flanders Mill Road, Baxter Lane, and Ferguson Avenue. Condition 39 requires construction per
the City’s standards. An exception will be created by this variance to not include the sidewalk in
its standard location. The condition takes this into account.
This is a design choice to provide a unique character to the development while still meeting City
standards for functional circulation for pedestrians. Denial of the variance would require
construction of a standard sidewalk along Ferguson Avenue, Baxter Lane, and Flanders Mill
Road. This does not modify lot or street layouts. A 30 foot common open space would remain
surrounding the property along Flanders Mill Road, Baxter Lane, and Ferguson Avenue.
1. The granting of the variance will not be detrimental to the public health, safety, or general
welfare, or be injurious to other adjoining properties;
The variance request is to meet the requirement for pedestrian circulation through an alternative
means. There will be full access to all locations. Standard crossing locations of public roads with
appropriate curb ramps will be provided. No detriment to the public or other adjoining
properties has been identified. The City Commission concluded the criterion is met.
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2. Because of the particular physical surroundings, shape or topographical conditions of the
specific property involved, an undue hardship to the owner would result if strict
interpretation of this chapter is enforced;
No hardship has been identified. However, as all intent and purpose of the requirement will be
satisfied there is also no compelling public rationale to deny the request. Section 38.24.110,
which also addresses sidewalks, permits the use of Class I trails in-lieu of sidewalks in order to
provide transportation pathways. An appropriate public access easement will be provided. The
City Commission concluded the criterion is met.
3. The variance will not cause a substantial increase in public costs; and
The construction and maintenance of the Class I trail will be the obligation of the developer and
subsequently the property owner’s association. The City Commission concluded the criterion is
met.
4. The variance will not, in any manner, place the subdivision in nonconformance with any
other provisions of this chapter or with the city's growth policy.
No other non-conformities have been identified. The City Commission concluded the criterion is
met.
Zoning Variance Review Criteria, Section 38.35.060, BMC
The applicant requested five variances as part of this subdivision application.
The City has two forms of variances, those for subdivision standards and those for zoning
standards. Section 38.35.010, BMC describes when those two apply respectively. Zoning
variance criteria are set forth in Section 38.35.060, BMC.
The zoning variances requested are:
1) Section 38.23.100 Water course setback – To encroach into required 50 foot setback for
multiple lots in dimensions as depicted in Section 4.1 of the submittal.
2) Section 38.23.040 Blocks - To allow Blocks 7, 9, 12, 14, 15, 18 to have a width of less than
200 feet.
3) Section 38.23.040 Blocks - To allow Blocks 13, 15, 16, 17, 20, and 24 to have a length greater
than 400 feet. The Commission found that the alternative block length criteria, as analyzed
under Section 6, Criteria 3) Effect on Local Services, Streets of this report, were satisfied and
therefore this variance is not necessary.
Zoning Variance Request 1) Section 38.23.100 Water course setback – To encroach into
required 50 foot setback for multiple lots in dimensions as depicted in Section 4.1 of the
submittal. The proposed subdivision includes the substantial relocation of an existing unnamed
tributary to Baxter Creek (UTBC). The present location of the UTBC and the associated low
grade wetlands is described in Appendix A of the application.
The purpose of the wetland and water course setback is described in Section 38.23.100.A.
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“A. Where a development is crossed by or is adjacent to a watercourse, the developer
shall mitigate the impacts of the development on the watercourse. This mitigation may
not be less restrictive than the requirements of the city floodplain regulations or any other
applicable regulation of this chapter. The purpose of this mitigation is bank stabilization;
sediment, nutrient and pollution removal; and flood control.”
The development proposes to relocate the stream and make a variety of wetland relocations and
improvements. The UTBC will now run the full length of the development. The wetlands will be
relocated an enhanced in coordination with the watercourse and open space and parks. The
relocation requires permits from the US Army Corps of Engineers and the Gallatin Conservation
District. Both bodies have given favorable preliminary indications. If the final permits are not
granted then the development could not be constructed with the configuration proposed.
Condition H requires verification of the permits prior to construction.
The municipal code requires a setback of 50 feet from the outer edge of wetlands or a
watercourse. The proposed relocation moves the UTBC to a meandering channel within an open
space corridor. The distance required for each location differs. See Section 4.1 of the application
for a lot description of the reasoning for the encroachment in each location. A map is also
provided showing the location.
The locations of the setback boundaries are under the control of the developer in this
development to a greater degree than in many developments as the watercourse and wetlands are
being heavily modified. The requested encroachment is into the required 50 foot buffer rather
than into the wetlands themselves. Disapproval of this requested variance could have three
possible effects: a) reduction in the number of lots platted, b) a reconfiguration and reduction in
width of watercourse and wetland enhancements, and c) the stream remaining in the present
location which would add considerable expense and permitting complexity to the relocation of
Flanders Mill Road to the west with development of the property to the west. Option C would
require such material changes that it would effectively disapprove the subdivision
Both the Wetlands Review Board and the Recreation and Parks Advisory Board recommend
favorably on the variance. Denial of the requested variance would have a substantial negative
effect on the design of the subdivision.
The city shall not approve variances unless it makes findings based upon the evidence presented
in each specific case that:
Review criterion 1. Will not be contrary to and will serve the public interest;
The required setback is adopted to accomplish the purposes identified in Section 38.23.100. The
proposed relocation of the streams and enhancements to the wetlands will continue to meet these
purposes. The majority of the area within the setback remains within common open spaces. The
area of encroachment is not within the separation from the UTBC but within the 50 feet beyond
any wetland border. The overall changes are an improvement to the wetlands and UTBC
function and habitat value. Therefore, The City Commission concluded the criterion is met.
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Review criterion 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:
a. Hardship does not include difficulties arising from actions, or otherwise be self-imposed, by the applicant or previous predecessors in interest, or potential for greater financial returns; and
b. Conditions unique to the property may include, but are not limited to, slope, presence of
watercourses, after the fact imposition of additional regulations on previously lawful lots, and governmental actions outside of the owners control;
The unnamed tributary to Baxter Creek is a natural stream. The stream has been damaged over
the years by adjacent agricultural operations. The applicant is proposing the relocation and the
lot layout of the development. It appears this would place the stream back in its more historic
location. The plan depicts a 30 foot wide corridor for the stream rather than narrowly defining
an exact channel. This effectively widens the overall corridor significantly.
An alternative design which provides less wetland area or a narrower stream corridor in order to
keep the 50 foot buffer area within the depicted open spaces is possible in many of the locations.
However, the Wetlands Review Board concluded that this would be less beneficial than having
the greater wetland area, wider corridor, and the smaller buffer in defined locations. The design
of the watercourse and wetlands configuration is unique to the property. The amount of effort to
improve the condition of the UTBC is unusual. The entire wetlands improvement is proposed
with the initial phase of the development. The area for the central watercourse open space will be
required to be set aside by Condition 8. Condition 2 requires the development to be constructed
as proposed and conditioned so that the improvements to the wetlands and watercourse area must
be completed. A literal enforcement of the regulations would create a lower quality environment
and be detrimental to the purposes of the section establishing the standard. The City Commission
concluded the criterion is met.
Review criteria 3. Will observe the spirit of this chapter, including the adopted growth
policy, and do substantial justice;
As described above, the proposal improves the wetland and watercourse habitat and function.
The purposes of Section 38.23.100 will be met. The City endeavors to allow creative compliance
with the intent and meaning of its regulations. The necessary permits will be obtained, see
Condition H, prior to any work being done. The City Commission concluded the criterion is met.
The fourth criterion is specific to floodplains and is not applicable to the requested variance.
Therefore, it is not presented here.
Zoning Variance Request 2) Section 38.23.040 Blocks - To allow Blocks 7, 9, 12, 14, 15, 18 to
have a width of less than 200 feet.
“C. Blocks shall not be less than 200 feet or more than 400 feet in width, except where
essential to provide separation of residential development from a traffic arterial or to
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overcome specific disadvantages of topography and orientation.”
The proposed development has six blocks which have a width less than 200 feet. Five of these
blocks are between an exterior street and the relocated UTBC. The last, Block 18, is between
Flanders Mill Road and Ryan Sun Way. There are alternative layouts which would widen the
blocks by replacing the streets with alleyways and placing the street so that block would be
compliant with the requirement. However, this would cause other design difficulties such as very
long alleys in some locations, additional accesses onto Oak Street, or loss of street connectivity.
Disapproval of this variance would require a substantial redesign which would require provision
of alleys and reduced lot sizes in several locations to meet the required 200 foot block width.
Several streets would need to be relocated.
The city shall not approve variances unless it makes findings based upon the evidence presented
in each specific case that:
Review criterion 1. Will not be contrary to and will serve the public interest;
The municipal code contains the block width requirement to ensure that blocks and lots contain a
suitable area for building and to prevent double fronted lots which often pose a design challenge.
In this circumstance, there is a 30 foot wide buffer strip with a Class I trail around the periphery
of the subdivision which separates the lots from the roadway. This reduces the multiple-front
design issue. The covenants also require design to provide a “two-sided” appearance for the
homes. Although the parcel size is quite large it has a definite rectangular shape oriented N-S.
This in conjunction with the presence of the UTBC presents some strong design limitations. On
balance, it appears the proposed block layout balances several competing municipal code
priorities and overall is not contrary to the public interest. The City Commission concluded the
criterion is met.
Review criterion 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:
a. Hardship does not include difficulties arising from actions, or otherwise be self-imposed, by the applicant or previous predecessors in interest, or potential for greater financial
returns; and
b. Conditions unique to the property may include, but are not limited to, slope, presence of
watercourses, after the fact imposition of additional regulations on previously lawful lots, and governmental actions outside of the owners control;
The UTBC is a natural stream. Protection and enhancement of it places some design limitation
on the block layout. This is a condition unique to the property. The design of the subdivision is
limited by several standards in the municipal code. The applicant’s choice to request a variance
from this standard in order to advance other requirements is a fairly debatable option. The City
Commission concluded the criterion is met.
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Review criteria 3. Will observe the spirit of this chapter, including the adopted growth
policy, and do substantial justice;
The growth policy calls for protection and enhancement of environmental features, including
watercourses. The blocks are providing for suitable building areas on each lot. The City
Commission concluded the criterion is met.
The fourth criterion is specific to floodplains and is not applicable to the requested variance.
Therefore, it is not presented here.
SECTION 7 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS
A) PURSUANT to Chapter 38, Article 3, BMC, and other applicable sections of Chapter 38, BMC,
public notice was given, opportunity to submit comment was provided to affected parties, and a
review of the preliminary plat described in this findings of fact was conducted. The applicant
presented to the City a proposed preliminary plat for a major subdivision with 295 lots on 136.75
acres and associated open spaces, streets, and parks. The purposes of the preliminary plat review
were to consider all relevant evidence relating to public health, safety, welfare, and the other
purposes of Chapter 38, BMC; to evaluate the proposal against the criteria and standards of
Chapter 38 BMC, BMC; and to determine whether the plat should be approved, conditionally
approved, or denied.
B) It appeared to the City Commission that all parties and the public wishing to examine the
proposed preliminary plat and offer comment were given the opportunity to do so. After
receiving the recommendation of the relevant advisory bodies established by Section Chapter 38,
Article 33, BMC, and considering all matters of record presented with the application and during
the public comment period defined by Chapter 38, BMC, the City Commission has found that
the proposed preliminary plat would comply with the requirements of the Bozeman Municipal
Code if certain conditions were imposed. Therefore, being fully advised of all matters having
come before her regarding this application, the City Commission makes the following decision.
C) The preliminary plat has been found to meet the criteria of Chapter 38, BMC, and is therefore
approved, subject to the conditions listed in Section 3 of this report and the correction of any
elements not in conformance with the standards of the Chapter including those identified in
Section 4 of this report. The evidence contained in the submittal materials, advisory body
review, public testimony, and this report, justify the conditions imposed on this development to
ensure that the final site plan and subsequent construction complies with all applicable
regulations, and all applicable criteria of Chapter 38, BMC.
D) 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
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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.
DATED this ________day of , 2014.
BOZEMAN CITY COMMISSION
_________________________________
JEFFREY K. KRAUSS
Mayor
ATTEST:
_______________________________
STACY ULMEN, CMC
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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APPENDIX A –ADVISORY CODE CITATIONS
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. It is the duty of the applicant
to submit plans and other materials which conform to all standards. Submittal of inaccurate or
incomplete materials may delay review of the application or prohibit its approval.
APPENDIX B – PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses:
The project site is designated as R-3, R-4 and PLI zones. The intent of each of these zones is
established in Chapter 38, Unified Development Code, BMC and is excerpted below.
From Section 38.08.010, BMC
A. The intent and purpose of the residential zoning districts is to establish areas within the
city that are primarily residential in character and to set forth certain minimum standards for
development within those areas. The purpose in having more than one residential district is to
provide opportunities for a variety of housing types and arrangements within the community
while providing a basic level of predictability. There is a rebuttable presumption that the uses set
forth for each district will be compatible with each other when the standards of this chapter are
met and any applicable conditions of approval have been satisfied. Additional requirements for
development apply within overlay districts. All development is subject to section 38.01.050.
Residential density is correlated with many community goals and objectives that are contained in
the city's adopted growth policy, as well as many standards and purposes of this chapter. Section
38.08.090 sets standards for minimum densities in residential districts which will advance these
goals, objectives, and purposes.
4. 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.
5. The intent of the R-4 residential high density district is to provide for high-density
residential development through a variety of housing types within the city with associated
service functions. This will provide for a variety of compatible housing types to serve the
varying needs of the community's residents. Although some office use is permitted, it shall
remain as a secondary use to residential development. Secondary status shall be as measured by
percentage of total building area.
Section 38.13.010. Intent.
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The intent of the PLI public lands and institutions district is to provide for major public and
quasi-public uses outside of other districts. Not all public and quasi-public uses need to be
classified PLI. Some may fit within another district; however larger areas will be designated PLI.
Adopted Growth Policy Designation:
The property is designated as “Residential” in the Bozeman Community Plan. The Plan
indicates that “This category designates places where the primary activity is urban density
dwellings. Other uses which complement residences are also acceptable such as parks, low
intensity home based occupations, fire stations, churches, and schools. High density residential
areas should be established in close proximity to commercial centers to facilitate the provision of
services and employment opportunities to persons without requiring the use of an automobile.
Implementation of this category by residential zoning should provide for and coordinate
intensive residential uses in proximity to commercial centers. The residential designation
indicates that it is expected that development will occur within municipal boundaries, which may
require annexation prior to development.”
The dwelling unit density expected within this classification varies between 6 and 32 dwellings
per net acre.
APPENDIX C – DETAILED PROJECT DESCRIPTION AND BACKGROUND
Project Description: This is a subdivision of 136.75 acres into 295 lots. One PLI lot for an
existing electrical substation, 2 multi-household lots, and 292 single household lots including 16
for accessory dwelling units. The property is bounded by Baxter Lane on the north, Flanders Mill
Road on the west, and Ferguson Avenue/Gallatin County Regional Park on the east. The
application includes a mix of single detached, single attached, and multi-household development
with a majority being for single detached style development.
Project Background: The northern portion of the property was annexed and given municipal
zoning in the fall of 2013. There area south of Oak Street extended was annexed and given
preliminary plat approval as a portion of the Diamond Estates 2 and 3 projects in the mid 2000’s.
Those subdivision approvals expired. No entitlements from the prior development remain.
APPENDIX D – NOTICING AND PUBLIC COMMENT
Notice was published in the Bozeman Daily Chronicle on June 1 and June 15, 2014. Notice was
posted on site on May 29, 2014 and mailed to persons owning property within 200 feet of the
subdivision on May 30, 2014. Notice has been provided at least 15 and not more than 45 days
prior to the Planning Board and City Commission public hearings.
No public comment was received prior to or during the Planning Board public hearing.
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A written comment was received on June 23, 2014. A comment was received by email on July 6,
2014. Comments addressed issues of several of the requested variances and street capacity. The
Commission received all written public comment prior to the beginning of the public hearing.
No public testimony was given at the public hearing on July 7, 2014.
APPENDIX E – OWNER INFORMATION AND REVIEWING STAFF
Owner and Applicant: Flanders Mill LLC, 235 Green Hills Ranch Road, Bozeman MT 59718
Representative: C&H Engineering and Surveying, Inc., 1091 Stoneridge Drive, Bozeman MT
59718
Report By: Chris Saunders, Policy and Planning Manager
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