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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. 4,;A5 xa 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. I 2014 -- I i ° 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 1 i 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 2 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 3 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." 4 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 5 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 6 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. 7