HomeMy WebLinkAbout04-13-15 Gordon Public Comment Koch i
Mayor Krauss, Commissioners.
My name is Lewis Gordon, and my address is 407 W. Koch. My family lives diagonally across
the street from where the historic house at 402 W. Koch used to be.
I urge the Commission to reclaim review and decision making authority as to all matters and all
applications for development concerning this property; not just the Special Temporary Use
Permit request-that issue is just the tip of the iceberg.
There are two, and only two possibilities, as to what happened here.
- The first is that the applicant unilaterally decided to demolish an entire historic residence-
the reason why doesn't matter- in clear violation of the terms of a permit application and
permit that always described the project as an "addition." If this is what happened, then as
former Historic Preservation Officer Derek Strahn observed in his letter to the Commission:
"In my nine years reviewing historic projects within the Neighborhood Conservation Overlay
District, I can never remember someone taking such a bold and reckless action." Similarly,
the architect for the project, in his long email to the City and the Applicant just hours after
the demolition took place, describes- for starters- how he "was absolutely shocked to see that
the home we used as our base for the remodel/addition was completely demolished and
thrown in a dumpster yesterday."
- The second possibility is that the demolition was authorized in advance by the City. Some
witnesses say that the applicant told them that this is in fact what happened. Yet this seems
unlikely, given the absence of any documentation to this effect, and the Historic Preservation
Officer's memo two days after the demolition, in which she stated unequivocally that such
authorization was not sought and was not granted.
BOTH of these possibile explanations are extemely disturbing. To get to the bottom of this,
the Commission has no choice but to exercise its powers to require sworn testimony from all
involved in this matter to see how and when the decision to demolish was made, who knew
in advance of that decision,what happened next, etc.
The City's response to this demolition will inevitably set a critical precedent for future
applicants, and for the fate of historic structures. Will the City simply impose a fine, and let
future applicants know that for the right price, they too can ignore the law and demolish a
historic structure based on their own judgment, without first going through the well-defined
City process? Or will the City consider a remedy such as the one in our Code and the codes
of other cities: to require the applicant to rebuild the property to the same square footage,
configuration, and footprint, as existed before the illegal action.
I would like to enter into the record a brief factual summary of the information contained in
the Planning Dept. file on this matter, and provide copies to the Commissioners. May I do
that now?Thank you very much.
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Facts from Bozeman Planning Department file re:
402 W. Koch Street Historic House Demolition of April 6,2015
(April 13,2015)
The following is a brief synopsis of facts concerning the April 6, 2015 complete demolition of
the historic house located at 402 W. Koch Street within the City's Neighborhood Conservation
Overlay District. The house had been found to contribute to the Cooper Park Historic District,
on the National Register of Historic Places. The information below is based upon a very recent
review of public documents contained in the City of Bozeman Planning Department file for the
project that led to this demolition.
In sum, the file establishes that the demolition of the historic home was undertaken without a
permit or approval from the City, and that the applicants never indicated to the City that they
were considering demolishing the home. The applicants were aware of the home's status as a
historic structure and its location within a designated historic district, not only making note of
these facts during the formal review process seeking a deviation and a Certificate of
Appropriateness for the project,.but promising to preserve the historic structure itself..
To put the demolition in a larger and longer=term perspective, the words of Derek Strahn(see
attached letter), the City's former historic preservation expert, should be considered:
"In my nine years reviewing historic projects within the Neighborhood Conservation
Overlay District, I can never remember someone taking such a bold and reckless
action.
(Strahn letter to Commissioners of April 10, 2015)
The following are a few key reference points of communication between the applicants and
the City that are available for viewing in the official file, as well as relevant ordinances.
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2014
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° On March 21, 2014, the applicants filed a development review application for their proposed
project at 402 W. Koch Street in the Historic District. It contained a four-part request for the
following approvals: to rehabilitate and add on to the rear of the historic home; a deviation in
the setback rules to accomplish the same; to construct an accessory garage; and related site
improvements. The opening sentence of the application emphasized the clear intent to preserve-
not demolish-the historic house:
"This modification was carefully designed to preserve the architectural integrity
of n o the bungalow style home of the Cooper District while preserving the property
with replacement of a failing roof and second floor system with a new system
that will meet code requirements."
° In an April 2, 2014 email from the applicants to Courtney Kramer, Historic Preservation
Officer at the Planning Department, the applicants described how they were "happy to have
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come up with a design" that "preserves the property," and characterized their project as "a
major rehabilitation of a historic property." The architect helping them achieve the design was
their neighbor and professional architect Mark Weirich.
On page 5 of the Planning Staff report to the Bozeman City Commission concerning the
application, Staff noted that the property had been nominated by the National Register of
Historic Places as one of a small number of representative examples of bungalows in the
Historic District. Similarly, in a March 24, 2014 letter to the applicants notifying them of the
Commission's approval of the COA for the requested "addition and new accessory garage," the
Planning Department pointed out that the existing house was "eligible for a silver interpretive
plaque offered by the Montana Historical Society."
° A Certificate of Appropriateness (attached), issued on April 15, 2014, again describes the
project as "an addition and new accessory garage," and this language appears on every
document describing the project. There is no mention ever made of demolition, nor of any
factors that would suggest demolition was warranted.
2015
Demolition of the entire house took place on Monday, April 6, 2015, taking everyone- city
and neighbors- by complete surprise. Mark Weirich, the architect who designed the project that
the City had approved, sent an email (attached) to the applicants and the City early the next
morning on April 7, 2015, in which he stated:
"I was absolutely shocked to see that the home we used as our base for the
remodel/addition was completely demolished and thrown in a dumpster
yesterday...Because we are in a historic district, I attempted to keep as much of
the original character as I could...You said in a phone message that Courtney, of
the Planning Department, had verbally approved tearing down the entire
building. Did the building department, that issued the Building Permit that
allows you to do this work, approve demo of the entire building?...I am very
surprised to hear that the City Planning Department approved the complete
destruction of a historic home in a historic district. I felt that the only way we got
their approval and our COA was the fact that we maintained the N/E/W walls,
their window/door location and proportion, and the original exterior
materials/finishes... I am also surprised that I was not consulted on a decision
that is going to have such a huge impact on the eventual end product, your
budget, and your relationship with your neighbors (I had one neighbor screaming
at me, calling me a [expletives deleted] because they knew I did the design for
you).... Like I said, I am just in shock, elimination of this historic building was
not my intent and was never part of the plan."
Securing a demotion permit for a structure in the historic district would have required
thorough staff review, public notice, opportunity to comment, and a formal sign-off from the
City. The city handbook provided as a resource to those living in Bozeman's historic
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neighborhoods also notes that demolition of a historic structure typically requires approval from
the City Commission.
A demolition permit (attached) was issued two days after the demolition at 402 W. Koch
occurred, on Wednesday, April 8, 2015, signed by Courtney Kramer of the Planning
Department. In an April 9, 2015 memo to the file (attached), Ms. Kramer described the seeking
of a permit for demolition as "after the fact," and made no reference whatsoever to any prior
request for a permit, let alone any prior approval- by herself or anyone else- for complete
demolition. Because Ms. Kramer's memo so completely rejects the idea that the applicant had
prior approval of any type from anyone to demolish the entire house, the memo is provided
below verbatim and in its entirety:
"On Monday, April 6, the City of Bozeman learned that the historic residence at
402 West Koch Street was demolished in violation of the zoning and building
permits approved by the City in 2014. The property is located within the City's
Neighborhood Conservation Overlay District and the residence contributed to the
Cooper Park Historic District, on the National Register of Historic Places.
On April 8, 2015, the Building Inspection Division received an after-the-fact
request for a demolition perinit for the residence. Historic Preservation Officer
Kramer signed the demolition permit in order to obtain the conformance to Sec.
10.04.080 and Section 10.04.090 of the Bozeman Municipal Code, which
requires a surety bond to insure that all work is completed in a proper and safe
manner. This bond protects the public's health, safety and welfare on the site."
Finally, it should be noted that the application for remodel of the historic home included an
application to construct a"garage," with no mention made of an ADU: "The plan is to build the
garage first, move all items from the house into the garage for storage, then begin construction
on the house immediately thereafter." In a March 18, 2014 email to the Department of Planning,
the applicants again stated that the "garage loft will remain unfinished and used for storage.
We'd like to be able to market the house with the potential for income production should we
move down the road." On March 20, 2014, the Planning Department wrote to them that an
ADU "will not be permitted at this time...Installation of the ADU at a future date would require
an application through the Department of Community Development," and again referred to the
structure as "an accessory garage." Nonetheless, the applicants began to inhabit the garage
before the demolition, apparently without first seeking approval. Instead, on April 10, 2015,
four days after demolishing their home in violation of their permit, the applicants filed a request
for a Special Temporary Use Permit (STUP) to allow them to live in the garage for "the time it
takes to build our new home on the site. Estimate time is 6 mo. After building permit is issued."
Conclusion
Many in the neighborhood and larger community have had the same reaction (noted above) as
that of the architect who prepared plans for renovation that went through city approval (see
attached letters). It is clear that what happened was a significant and precedent-setting violation
of the city code. If the initial public hearing notice on this project had indicated that demolition
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was a potential outcome, rather than "the construction of an addition and a new accessory
garage" that was noticed and permitted, there would likely have been an outpouring of
opposition to such a plan.
Now, there is concern that the destruction of the home will lead at the most to a fine, and a
dangerous precedent that the next person can decide on his or her own to tear down a historic
structure without City approval. The stakes are high for the historic character of Bozeman, and
there should be a frill and fair hearing of all the facts, including sworn testimony, as well as
robust public participation in the City's determination of the "next steps" and all-important
remedy for this violation. For all these reasons, the Commission itself should assume all review
and decision-making authority over this project and the important issues that it raises, as
allowed by Section 38.34.010.
Relevant references related to the points made above include:
The 'Bozeman Guidelines for Historic Preservation& The Neighborhood Conservation Over-
lay District," contained in the "Frequently Asked Questions" section, state:
"What if I want to demolish, or move, a building oil my property?
The demolition and movement of structures within the Neighborhood
Conservation Overlay District are considered an alteration and therefore are also
subject to review by City Staff. Application for the demolition or removal of
structures within the Neighborhood Conservation Overlay District will not be
accepted without a comprehensive plan for the subsequent development of the
property. This plan must be approved before a demolition or moving permit is
issued Generally, if the building has been determined to be historically
significant final authority for the demolition or movement shall rest with the City
Commission." (Emphasis added)
Provisions of the Bozeman Municipal Code that would appear to apply to both the home and
garage appear below. Perhaps the most important provision is Section 38.34.110, which states:
In addition to the remedies in article 34 of this chapter, the owner of any
structure or site that is demolished or moved contrary to the provisions of this
section, and any contractor performing such work, may be required to
reconstruct such structure or site in a design and manner identical to its condition
prior to such illegal demolition or move, and in conformance with all applicable
codes and regulations. (Emphasis added).
Similarly, Section 38.34.160(H) (see final page of this document), would appear to give the
City extremely broad discretion in fashioning an equitable remedy for the violation:
"H. Nothing herein contained shall prevent the city from taking such other lawful
action as is necessary to prevent or remedy any violation."
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Text of Bozeman Ordinances
Sec. 38.34.110. - Permit issuance; conformity with regulations required.
No permit or license of any type shall be issued unless in conformance with the regulations
contained within this chapter. Permits issued on the basis of plans and applications approved by
the building official and planning director authorize only the use, arrangement and construction
set forth in such approved plans and applications, and no other use, arrangement or
construction. Use, arrangement or construction at variance with that authorized shall be deemed
a violation of this chapter, punishable as provided in this article.
Whenever any subdivision, development or building work is being done contrary to the
provisions of this chapter, the planning director shall order the work stopped by notice in
writing served on any person engaged in doing or causing such work to be done, and any such
person shall forthwith stop such work until authorized by the planning director to proceed with
the work. The building official or city engineer may also issue a stop-work order when building
work is being done contrary to the provisions of this chapter.
If the planning director or other administrator of standards shall find that any of the provisions
of this chapter are being violated, they shall notify in writing the person responsible for such
violations, indicating the nature of the violation and ordering the action necessary to correct it.
Such administrator may order discontinuance of illegal use of land, illegal additions, alterations
or structural changes; may order discontinuance of any illegal work being done; or may take
any other action authorized by this chapter to ensure compliance with or prevent violation of its
provisions.
In addition to the remedies in article 34 of this chapter, the owner of any structure or site that is
demolished or moved contrary to the provisions of this section, and any contractor performing
such work, may be required to reconstruct such structure or site in a design and manner
identical to its condition prior to such illegal demolition or move, and in conformance with all
applicable codes and regulations.
Sec. 38.34.160. - Violation; penalty; assisting or abetting; additional remedies.
The effective enforcement of adopted standards is necessary to accomplish their intended
purpose. The city has a variety of options for the enforcement of this chapter. The planning
director shall select the option which in their opinion is most suitable to the circumstance and
violation. More than one enforcement option may be used to attain compliance with the
standards of this chapter when deemed appropriate.
A. Violation of the provisions of this chapter or failure to comply with any of its requirements
including violations of conditions and safeguards established in connection with the grant of
variances or conditional uses or any of the required conditions imposed by the review authority
shall constitute a misdemeanor. Any person who violates this chapter or fails to comply with
any of its requirements shall upon conviction thereof be fined or imprisoned or both, either as
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set forth in state law regarding subdivision and zoning, or in accordance with 1.01.210, and in
addition shall pay all costs and expenses involved in the case except as stated in subsection D of
this section.
1. Each day such violation continues shall be considered a separate offense and punishable
as such.
2. For violations relating to plats each sale, lease or transfer of each separate parcel of land
in violation of any provision of these regulations or the Montana Subdivision and Platting
Act shall be deemed a separate and distinct offense.
B. The code compliance officer is authorized to issue a notice to appear under the provisions of
MCA 46-6-310 to any violator of this chapter.
C. The owner or tenant of any building, structure, premises or part thereof, and any architect,
builder, contractor, agent or other person who con-it-nits, participates in, assists or maintains such
violation may each be found guilty of a separate offense and suffer the penalties herein provided.
D. If transfers not in accordance with these regulations or the Montana Subdivision and Platting
Act are made, the city attorney shall commence action to enjoin further sales or transfers and
compel compliance with all provisions of these regulations. The cost of the action must be
imposed against the party not prevailing.
E. When a violation has not been corrected by the property owner after written notice from the
city, the enforcement officer or planning director may seek approval for filing at the county clerk
and recorder's office a notice of violation or noncompliance. Such notice shall serve to advise
potential purchasers of existing violations of this chapter or of on-going enforcement actions
regarding a property. Such notice shall clearly state that the parcel or development on the parcel
is in violation of this chapter and that correction of the violation must be made prior to the city
approving additional development or redevelopment of the site. The notice shall also describe the
nature of the violation and applicable citations to the relevant sections of this chapter.
1. When such a notice is to be filed the enforcement officer shall either:
a. Through the office of the city attorney bring an action for civil and/or injunctive
relief that requests a court order to record a notice of violation or noncompliance; or
b. Schedule a public meeting to be held before the city commission with the
intention of receiving an order from the city commission confirming the validity of
the violation and the need for correction, and authorizing the recording of the notice
of violation or noncompliance. Notice of such a hearing shall be provided as
required by article 40,of this chapter.
2. When a violation has been corrected for which a notice of violation or noncompliance
was filed, the city shall record a release of noncompliance indicating that the prior
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violation has been corrected. The property owner is responsible for notifying the planning
department in writing of the correction of the violation or noncompliance. Upon receipt of
such notification by the property owner, the enforcement officer shall conduct an
inspection to verify correction prior to the recording of the release.
F. The city may maintain an action or proceeding in a court of competent jurisdiction to compel
compliance with or to restrain by injunction the violation of, any provision of this chapter.
G. Violation of this chapter is a municipal infraction and may be punishable by a civil penalty
as provided in section 24.02.040, in addition to other remedies of this section except that the
court shall impose the following minimum civil penalties.
1. Each day such violation continues shall be considered a separate offense and punishable
as such. The minimum civil penalty for violation of this chapter by the same person for the
same violation within a 12-month period shall be:
a. First citation: $100.00.
b.Second citation: $150.00.
c.Third and subsequent citations: $200.00.
d.The determining factor with respect to the civil penalty is the receipt of service of
the citation and not the judgment.
H. Nothing herein contained shall prevent the city from taking such other lawful action as is
necessary to prevent or remedy any violation.
I. Upon resolution of an identified instance of noncompliance with the standards of this chapter
the city may record a document with the Gallatin County Clerk and Recorder to give notice of
the resolution of the noncompliance.
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