HomeMy WebLinkAbout15- Thomas D. Cook Damages Claim for VOCs in Bridger Creek SubdivisionROBERT KOLESAR
Attorney &z' Counselor at LaW
June 11, 2015
Clerk
City of Bozeman
P. 0. Box 1230
Bozeman, MT 59771-1230
RE: Damages Claim for VOCs in Bridger Creek Subdivision by Mr.
Thomas D. Cook
Dear Folks:
Attached please find a claim against the City of Bozeman by Mr.
Thomas D. Cook for damages caused by the City of Bozeman's
release of VOCs from its old sanitary landfill operation into
the Bridger Creek Subdivision. The details of Mr. Cook's claim
are amply set forth in it, and need not be repeated here.
However, unlike other claims filed against the City over the
VOC release, Mr. Cook's Complaint does not focus on deleterious
long term health effects from VOCs. Instead, Mr. Cook's
Complaint emphasizes the loss of a reasonable and normal market
for homes in the Bridger Creek Subdivision, arising from the
fear and uncertainty caused by the City's mishandling of the
sanitary landfill operation and release of VOCs into the
groundwater over the last 30 years.
Environmental information, such as the human health risk
assessment, released by the City about the impact of VOC
releases from the City's old sanitary landfill operation has
been positive. Yet, Mr. Cook has still been unable to sell his
home on the market since the City disclosed the VOC problem.
Since the 2 year statute of limitations may run on property
damage claims in the near future, Mr. Cook has no choice but to
file his claim against the City of Bozeman now pursuant to
§2-9-301 et seq., MCA, while still attempting to sell his home
in the Bridger Creek Subdivision, as he had always planned.
Being unable to sell his home, Mr. Cook is also unable to
realize the economic value he has in the home, and move on with
future planned use of this economic value. Thus, Mr. Cook's
damages continue to grow, and no report from the City that the
VOCs do not cause health problems in the concentrations present
there can change the reality that extreme fear still surrounds
the Bridger Creek Subdivision real estate market.
Mr. Cook submits that the appropriate amount to compensate him
for his enclosed Complaint is for the City to purchase his
home at his present asking price, $549,500.00, and hereby makes
demand for payment to him in that amount. The City should
accept this offer, because after comments by Commissioners and
the facts of the release itself, the City has pretty much
admitted liability for any damages caused by the VOC release
from its sanitary landfill operation. Having admitted
liability, to properly administer exposure to damages, the City
should take this opportunity to reduce its liability for Mr.
Cook's damages to a sum certain.
The City's purchase of Mr. Cook's home would do just that, and
put the City in the position to actually make a profit on the
home once the fear settles out of the Bridger Creek Subdivision
real estate market. While this process could take several
years, the City could rent the home once it is owner, and
should accept the burden of waiting for the market for Bridger
Creek Subdivision homes to stabilize, and not impose that duty
[and damages related thereto] on Mr. Cook.
Please contact me if the City is interested in negotiating the
purchase of Mr. Cook's home. Pursuant to §2-9-301 et seq.,
MCA, if the City does not respond to this demand and offer
within 120 days, Mr. Cook will have no choice but to formally
file his enclosed Complaint in District Court.
Sincerely,
ROBERT KOLES
Attorney at Law
Page 2
Certificate of Service
I. Robert Kolesar, Attorney at Law, hereby certify
that on this day of June, 2015, a true and
correct copy of the "DAMAGE CLAIM & COMPLAINT BY THOMAS
D. COOK AGAINST THE CITY OF BOZEMAN, MONTANA", and
including a Cover Letter therefore, was personally
provided to:
Clerk - City of Bozeman
121 North Rouse Avenue
Bozeman, MT 59715
Robert Kolesar
Attorney for Thomas D. Cook
P.O. Box 594
Bozeman, MT 59771-0594
(406)586-5192
kolesar@brennan.net
DAMAGE CLAIM & COMPLAINT BY THOMAS D. COOK
AGAINST THE CITY OF BOZEMAN, MONTANA
Plaintiff, Thomas D. Cook, [Cook] hereby brings the following
Claim & Complaint against Defendant, City of Bozeman, Montana,
[the City], pursuant to MCA S2-9-301, et seq.:
GENERAL ALLEGATIONS.
1. Cook is Montana citizen, and resident of Gallatin County, who
purchased real property in the Bridger Creek Subdivision [the
Subdivision], which is located in the Southeast 1/4 and
Southwest 1/4 of Section 30 in Township 1 South, Range 6 East,
Gallatin County, Montana.
2. Cook purchased Lot #30 in Phase 3 of the Subdivision on or
about September 20, 2002, which has the street address of 720
Saint Andrews Drive, Bozeman, Montana.
3. Cook, working both for himself and by hiring subcontractors,
constructed a single family residence on Lot #30, and began
residing in said residence on or about October of 2005.
4. Defendant City is a Montana municipality with offices at 121
North Rouse, Bozeman, Montana.
5. venue is proper in this Court.
6. This Court has personal jurisdiction over the Plaintiff and
Defendant.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 1
7. This Court has subject matter jurisdiction over the claims
alleged below.
8. The City operated the Bozeman Municipal Landfill [the
Landfill], which is located on the southern slope of the Bridger
Mountain Range within the City of Bozeman. It consists of two
(2) cells: one lined and the other unlined. It is located up
gradient from Bridger Creek a perennial stream that flows into
the Gallatin River. Groundwater flowing under the Landfill is
hydrologically connected to Bridger Creek.
9. The City started accepting solid waste in this Landfill
around 1970, which continued until 2008 when it closed the
Landfill.
10. Between 1970 and 2008, the City accepted waste, including
hazardous waste, and collected revenues for that service from
individuals, businesses, the hospital, the City, Gallatin
County, and others.
11. For many of these years, toxic chemicals and volatile
organic hydrocarbons [VOCs] leaked (and continue to leak) from
the Landfill and infiltrated the surrounding groundwater
12. From a May 31,1984 "Summary Sheet" prepared by the City's
engineers and staff, the City, Gallatin County, and the State of
Montana knew the Landfill was leaking VOCs in the groundwater
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 2
were migrating under adjacent real property that later became
the Subdivision
13. As a result, the City began monitoring the groundwater near
the Landfill with wells placed on the real property that would
later become the Subdivision, which by about 1984 indicated that
remedial measures for migrating VOCs may be necessary.
14. By about 1984, the City knew, or should have known, that the
migrating VOCs on the adjacent real property were caused by VOCs
leaking from the Landfill and migrating under the Subdivision
property.
15. By about 1984, the City knew, or should have known, that
leaking VOCs presented known potential risks to human health,
and migration of such VOCs was therefore strictly regulated and
controlled by State and Federal law.
16. In 1991, the EPA revised the Code of Federal Regulations
('CFR") strengthening laws requiring measures to control
migrating VOCs at solid waste disposal facilities, such as the
Landf ill
17. In 1995, following discovery of VOCs leaking from the
Landfill, the Montana Department of Environmental Quality [DEQ]
gave the City two years to assess and correct groundwater
contamination caused by VOCs migrating from the Landfill.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 3
18. In 1995, the City expanded the Landfill by opening a new
cell adjacent to and up -gradient from the Subdivision.
19. The City failed and to take appropriate measures in response
to the DEQ's 1995 directives and did not adequately remove or
remedy migration of VOCs from the Landfill..
20. On or about January 11, 1996, a real estate developer known
as Golf Course Partners, LLC, [the Developer], submitted an
application to the City for preliminary plat approval of
residential lots in Phases II and III of the Subdivision.
21. The City knew that the Developer intended for individuals,
and families with children, to purchase lots in Phase III of the
Subdivision and to construct and occupy thereon full time
residences for their personal use.
22. Montana law requires applications to subdivide property,
like the one by Developer for the Subdivision, to address and
satisfy the mandates of the Montana Subdivision and Platting
Act, MCA S§76-3-101 , et. seq. [the Act].
23. In addition to the Act, the City had promulgated and adopted
regulations to, in part, further the public health, safety, and
general welfare purposes of the Act.
24. At the time of the Developer's said application, the City
knew about VOCs migrating from the Landfill into the groundwater
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 4
that flowed through the real property proposed for the
Subdivision.
25. The City, through its planning and engineering departments,
reviewed the Developer's said Application and, despite knowing
of the existence of VOCs below the proposed subdivision, the
City's report on the Subdivision said nothing about the VOCs
that were migrating from the Landfill under the Subdivision.
26. The City, having required reports on geology, groundwater
and groundwater monitoring, would lead any reasonable person to
believe that the City had properly discharged its duty to
protect public health and safety by assuring appropriate
mitigation and control of VOCs migrating from the Landfill under
the then just a proposed residential subdivision.
27. However, the City imposed no conditions for to eliminating
or controlling migrating VOCs, nor for warning purchasers or
potential purchasers of lots within the Subdivision of the
existence of the VOCs migrating from the Landfill.
28. On or about September 3, 1996 and despite the City's
knowledge of the existence of the VOCs migrating from the
Landfill, the City gave the Developer conditional preliminary
plat approval for Phases II and III.
29. None of the conditions on the preliminary plat involved
remediating or mitigating the VOCs migrating from the Landfill.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 5
30. None of the conditions on the preliminary plat required the
Developer to notify potential buyers of lots in the Subdivision
about the VOCs migrating from the Landfill.
31. The City knew, or should have known, that the VOCs migrating
from the Landfill would create reasonable fear for many persons
of bodily injury and property damage, seriously devaluing the
Subdivision real property and its desirability for single family
and other residential uses.
32. The City, knowing that the VOCs migrating from the Landfill
could create reasonable fear for many persons of bodily injury
and property damage, and would therefore likely cause serious
monetary devaluation of the Subdivision real property and its
desirability for single family and other residential uses,
undertook conduct to conceal the fact that VOCs were migrating
from the Landfill under the Subdivision.
33. The City could have denied the application for the
Subdivision, or required notification about the VOCs migrating
from the Landfill under the Subdivision to potential purchasers.
34. The City did not notify Cook, or anyone else about the VOCs
migrating from the Landfill under the Subdivision.
35. The City ignored the known and foreseeable dangers to all
those who would purchase lots and build homes in Phase III of
the Subdivision, including the risk that by concealing [and
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 6
failing to disclose] the fact that VOCs were migrating from the
Landfill under the Subdivision, and that by improperly managing
and controlling VOCs migrating from the Landfill, once
disclosure occurred, the City would cause unusual fear and
public outcry seriously devaluing, or even making unsaleable,
lots and homes in the Subdivision.
36. The City's review and approval of the Subdivision created a
false sense of security that the property was safe to purchase
and live on.
37. The Developer marketed and sold lots in the Subdivision to
the public without disclosing the fact that VOCs were migrating
from the Landfill under the Subdivision.
38. The City, ignoring the dangers (to both health and property
value) to those individuals and families who would reside in
Phase III of the Subdivision, approved building permits and
certificates of occupancy and failed to inform Cook and other
individuals about the VOCs migrating from the Landfill under the
Subdivision.
39. It was reasonable for Cook to believe that the City would
perform its duties and prevent a subdivision from being approved
that was not safe for human habitation, but the City failed in
exercising its duties.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 7
40. It was reasonable for Cook to believe that the City would
properly perform its duties and not allow VOCs to escape the
Landfill and adversely affect Cook's property, but the City
failed in exercising its duties.
41. It was reasonable for Cook to believe that the City would
properly notify and warn adjacent real property owners of the
fact that VOCs were migrating from the Landfill and adversely
affecting such adjacent real property, but the City failed in
exercising its duties.
42. It was reasonable for Cook to believe that the Developer
would represent the correct and true state of the real property
within the Subdivision, when applying for Subdivision's
approval, and when marketing and selling the real property
within the Subdivision.
43. VOCs migrating with the groundwater from the Landfill under
the Subdivision are a nuisance and and are trespassing on Cook's
real property, invading his home. VOCs can persist for decades
after a release; accordingly, this is a continuing nuisance and
continuing trespass.
44. The unlawful presence of VOCs in, on, and around Cook's real
property is devaluing Cook's real property, and has caused the
real property to be unsaleable in the market, thereby causing
him damages in an amount to be determined at trial.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 8
45. In 2008, the City closed the Landfill under the review and
approval of the DEQ, but despite this closure VOCs continue
migrating with the groundwater from the Landfill under the
Subdivision, and thereby continues to enter upon Cook's real
property.
46. Prior to purchasing his Lot in the Subdivision, Cook had no
knowledge of the VOCs migrating with the groundwater from the
Landfill and under the Subdivision, and Cook made due and
diligent inquiry of the City's subdivision and planning
personnel whether proximity of the Landfill to the Subdivision
had caused or was causing any environmental concerns or
problems.
47. Prior to purchasing his Lot in the Subdivision, Cook having
made due and diligent inquiry of the City's subdivision and
planning personnel whether proximity of the Landfill to the
Subdivision had caused or was causing any environmental concerns
or problems, was specifically told by said City personnel there
were no environmental concerns or problems related to the
Landf ill.
48. In April 2013, the City released a report of groundwater
monitoring activities completed by its contractor, Tetra Tech,
Inc., which revealed historical data as far back as 1994 of high
levels of VOCs in the soils in the Subdivision.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 9
49. On or about June 20, 2013, for the first time, the City
notified Cook, among others, of VOCs migrating from the Landfill
into the Subdivision, and into Cook's home.
50. Due to the migration of VOCs from the Landfill, and the
level thereof detected in Cook's home, the City designed and
installed a mitigation system for the home.
51. Cook hereby tenders claims for his damages against the City
pursuant to MCA §2-9-301.
COUNT ONE - NEGLIGENCE
52. Cook hereby incorporates paragraphs 1 - 51 of his Complaint
in the above Count, as if set forth fully herein.
53. The City owes various duties that include but are not
limited to the duty to operate the Landfill in a manner that
would prevent the build up, escape, and/or migration of VOCs
from the Landfill onto Cook's property.
54. The City had various duties that include, but are not
limited to, the duty to exercise its police and policy powers to
protect property values and human health, including conditioning
approval of residential subdivisions upon proper control and
remediation of potential hazards to the safety and health of
those who may purchase property in the subdivision.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 10
55. The City had various duties that include, but are not
limited to, the duty to exercise its police and policy powers to
protect property values and human health, including notifying
potential purchasers in approved residential subdivisions of
known potential hazards to the safety and health of those who
may purchase property in the subdivision.
56. The City had various duties that include, but are not
limited to, the duty to exercise its police and policy powers to
protect property values and human health, including notifying
potential purchasers in approved residential subdivisions of
known potential hazards to the safety and health of those who
may apply for building and occupancy permits.
57. The City owed the foregoing duties to Cook, and, under the
circumstances alleged herein, have breached said duties, thereby
causing damages to Cook, including property devaluation,
inability to sell his real property located in the Subdivision,
inability to use the value of his real property in the
Subdivision to obtain loans or financing for personal needs, and
resultant inability to realize any monetary value therefrom, as
Cook had planned.
58. The City is liable to Cook for compensatory, restorative and
punitive damages where allowable in amounts to be determined at
trial.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 11
COUNT TWO- STRICT LIABILITY
59. Cook hereby incorporates paragraphs 1 - 58 of his Complaint
in the above Count, as if set forth fully herein.
60. In their ownership, operation, monitoring and general use of
the Landfill, the City, had made, manufactured, and under its
control hazardous VOCs, which were allowed to migrate from the
Landfill into the groundwater and travel to Cook's real
property.
61. Defendant proximately caused injury and damage to Cook as
alleged above.
62. Defendant is strictly liable to Cooks in an amount to be
determined at trial.
COUNT THREE - TRESPASS
63. Cook hereby incorporates paragraphs 1 - 62 of his Complaint
in the above Count, as if set forth fully herein.
64. The migrating VOCs from the Landfill have been, and continue
to be, unlawfully trespassing on Cook's real property.
65. The migrating VOCs from the Landfill that are in and on
Cook's real property constitute, and have constituted, an
intrusion upon his real property without his consent, and have
resulted in harm to Cook.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 12
66. The City is responsible for the unlawful trespass of VOCs on
to Cook's real property.
67. The trespassing VOCs are interfering with the use and
enjoyment by the Cook's of his property, and have devalued
Cook's real property causing it to be unsaleable on the market.
68. As a result of the City's trespasses, the Cook are entitled
to an award of compensatory, restorative, and punitive damages.
COUNT FOUR - INVERSE CONDEMNATION
69. Cook hereby incorporates paragraphs 1 - 68 of his Complaint
in the above Count, as if set forth fully herein.
70. The Cook's real property is privately owned.
71. By allowing the migration of VOCs onto Cook's real property,
the City has taken the Cook's real property without just
compensation.
72. The City has adversely affected the use and marketability of
the Cook's real property.
73. The Cook is entitled to damages from the City equal to just
compensation for the improper taking.
PRAYER FOR RELIEF
WHEREFORE, Cook prays for judgment in their favor as follows:
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 13
1. Compensatory damages as previously set forth in the
Complaint, including, but not limited to, the cost to repair
and/or remedy the damage to and restoration of the soils,
groundwater and any VOCs emanating in and through the Cook's
real property and home thereon; diminution in value of
property; and annoyance, discomfort, and mental emotional
distress, arising from Cook's loss of property value,
inability to sell his home and real property located in the
Subdivision, inability to use the value of his real property
in the Subdivision to obtain loans or financing for personal
needs, and resultant inability to realize any monetary value
therefrom, as Cook had planned.
2. That the Court enter an order enjoining the City from
leaking, spilling or otherwise allowing contaminants,
including VOCs, to be discharged into the groundwater and/or
migrate or trespass on to Cook's real property.
3. An award of pre -judgment interest as allowed in law and
equity.
4. For an award of Cook's reasonable attorneys' fees, expert
witness fees and costs as allowed in law and equity,
including as authorized by the private attorney general
doctrine.
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 14
5. For such other relief to which Cook may be entitled under law
or which is just and equitable.
6. Cook hereby demands a trial by jury of all claims so triable.
RESPECTFULLY SUBMITTED to the City of Bozeman, Montana,
pursuant to MCA §2-9-301 et seq. this day of June, 2015.
Robert Kolesar
Attorney for Thomas D. Cook
P.O. Box 594
Bozeman, MT 59771-0594
(406)586-5192
kolesar@brennan.net
COMPLAINT; Thomas D. Cook v. City of Bozeman Page 15
RESOLUTION NO. 4605
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, AUTHORIZING THE RETURN OF $15,000 DONATED BY BOZEMAN
DEACONESS HOSPITAL TO SUPPORT THE BOZEMAN FIBER MASTER PLAN TO
BOZEMAN DEACONESS HOSPITAL.
WHEREAS, the City of Bozeman Economic Development Department solicited
donations from private sector entities to support the creation and implementation of the Bozeman
Fiber Master Plan; and
WHEREAS, Bozeman Deaconess Hospital donated $20,000 to support the project; and
WHEREAS, some of these funds were not necessary for implementing the Bozeman
Fiber Master Plan; and
WHEREAS, the Bozeman City Commission wishes to equalize the donations received
from private sector entities and returning $15,000 to Bozeman Deaconess Hospital would
accomplish this objective;
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, that the City administration is authorized to return $15,000 in unused
donated funds.
PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a
regular session thereof held on the 1 st day of June, 2015.
Return to:
City of Bozeman
City Clerk
PO Box 1230
Bozeman MT 59771-1230
Page 1 of 19
Bozeman City Commission Findings of Fact and Order P14030, Staff Report
for Hanson Lot 163 Subsequent Minor Subdivision
Public Hearing Dates: City Commission meeting was ori -July 14, 2014
Project Description: Subsequent minor subdivision of an existing lot to remove the Restricted
Size Lot (RSL) designation. The physical lot size and dimensions are not proposed to be
modified. The property is zoned R-3 (Residential Medium Density District).
Project Location: The property is located at 4276 Brenden Street, described as Lot 163 of
Valley West Subdivision Phase 3A, in the City of Bozeman, Gallatin County, Montana.
Recommendation: Approval with conditions
Recommended Motion: 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 P14030 and move to approve Hanson Lot 163 Subsequent
Minor Subdivision with conditions and subject to all applicable code provisions.
Report Date: Monday, June 01, 2015
Staff Contact: Heather Davis, Associate Planner
Agenda Item Type: Action (Quasi-judicial)
EXECUTIVE SUMMARY
Unresolved Issues
There are no known unresolved issues at this time.
P14030, Findings of Fact for IIANSONLOT--163 MINOR SUBDIVISION Page 3 of 19
Applicable Subdivision Review Criteria, Section 38.03.040, BMC ................................. 11
Primary Subdivision Review Criteria, Section 76-3-608 ................................................. 12
Preliminary Plat Supplements........................................................................................... 13
SECTION 7 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS ......................... 16
APPENDIX A — PROJECT SITE ZONING AND GROWTH POLICY ..................................... 18
APPENDIX B — DETAILED PROJECT DESCRIPTION AND BACKGROUND .................... 18
APPENDIX C — NOTICING AND PUBLIC COMMENT......................................................... 19
APPENDIX D — OWNER INFORMATION AND REVIEWING STAFF ................................. 19
FISCALEFFECTS....................................................................................................................... 19
ATTACHMENTS..........................................................................Error! Bookmark not defined.
SECTION I -MAP SERIES
Hanson 1 -lot 1bliSub
Pi -el. Plat - 4276
Brendan St. - a
request to remove
the RSL designation
from the lot.
P-14030
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City Clerk
PO Box 1230
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Map 4: Aerial View
Page 7of19
Source: Google Maps
P14030, Findings of Fact for IMNSONLOT--163 MINOR SUBDIVISION Page 9 of 19
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Figure 1: Proposed Preliminary Plat
P14030, Findings of Fact for IIANSONLOT--163 MINOR SUBDIVISION Page 11 of 19
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 preliminary plat has been prepared in accordance with the survey requirements of the
Montana Subdivision and Platting Act by a Professional Engineer registered in the State of
Montana.
2) Compliance with the local subdivision regulations provided for in Part 5 of the
Montana Subdivision and Platting Act
The final plat shall comply with the standards identified and referenced in the Unified
Development Code (UDC). The applicant is advised that unmet code provisions, or code
provisions that are not specifically listed as a condition of approval, does not, in any way, create
a waiver or other relaxation of the lawful requirements of the Bozeman Municipal Code or State
law. Therefore, the subdivision will be in compliance with the subdivision regulations.
3) Compliance with the local subdivision review procedures provided for in Part 6 of
the Montana Subdivision and Platting Act
The hearings before the City Commission have been properly noticed as required by the
Bozeman UDC. Based on the recommendation of the DRC and other applicable review
agencies, as well as any public testimony received on the matter, the City Commission will make
the final decision on the applicant's request.
A preliminary plat application was submitted on May 27, 2014. The application was deemed
acceptable for initial review on June 2, 2014. The preliminary plat was reviewed by the DRC
June 18 and 25, 2014. The DRC determined the submittal contained detailed, supporting
information that is sufficient to allow for the review of the proposed subdivision on June 25,
2014.
Public notice for this application was placed in the Bozeman Daily Chronicle on Sunday, June
15, 2014. The site was posted with a public notice on June 12, 2014. Public notice was sent
certified mail to property owners of record within 200 feet of the subject property on June 12,
2014. No comment has been received as of the production date of this report.
P14030, Findings of Fact for HANSONLOT-163 MINOR SUBDIVISION Page 13 of 19
Streets — The adjacent streets are up to City standards and have capacity to accommodate this
change to the plat.
Police/Fire — The property is located within the City's Police and Fire emergency response area.
Stormwater - The standard requirement for a detailed review of the final grading and drainage
plan, and approval by the City Engineer, will be required as part of the infrastructure plan and
specification review process prior to final plat approval. Specific locations for storm water areas
are show on the face of the plat.
Parklands — No parkland is required for this subdivision. Valley West subdivision has already
provided the required parklands.
4) The effect on the Natural environment
No significant physical or topographical features have been identified, (e.g., outcroppings,
geological formations, steep slopes), on the subject property. The property is already developed
and the proposal is to remove the RSL designation.
5) The effect on Wildlife and wildlife habitat
The minor subdivision of the existing lot will have minimal impacts on wildlife and wildlife
habitat. The impacts to important habitat areas were addressed and mitigated during the review
of the original subdivision and are preserved as open space and/or parklands. Further, the project
location is already developed and is in a developing area.
6) The effect on Public health and safety
The intent of the regulations in Chapter 38 of the Bozeman Municipal Code is to protect the
public health, safety and general welfare. The subdivision has been reviewed by the DRC which
has determined that it is in general compliance with the title. In addition, all subdivisions must
be reviewed against the criteria listed in 76 -3 -608.3.b -d, Mont. Code Ann. and as a result, the
Department of Community Development has reviewed this application against the listed criteria
and further provides the following summary for submittal materials and requirements.
Preliminary Plat Supplements
A subdivision pre -application plan review was completed by the DRC on May 7, 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 standard
preliminary plat supplements due to the nature of this previously platted/developed property.
The DRC granted waivers to the supplemental information under 38.41.060, BMC with the pre -
application plan review application for:: 1) surface water, 2) floodplains, 3) groundwater, 4)
geology -soils -slopes, 5) vegetation, 6) wildlife, 7) historical features, 8) agriculture, 9)
agricultural water user facilities, 9) land use, 10) parks and recreational facilities, 12)
neighborhood center 13) miscellaneous, and 14) affordable housing. A waiver to the
supplemental information for 1) water and sewer, 2) stormwater management, 3) streets, roads
P14030, Findings of Fact for H4NSONLOT--163 MINOR SUBDIVISION Page 15 of 19
38.41.060.A.10 Water and Sewer
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review. Water for domestic and fire protection is be provided by connections to the
City of Bozeman water system.
38.41.060.A.11 Stormwater Management
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review. Stormwater facilities currently exist and have been designed to meet
minimum requirements of the City of Bozeman stormwater requirements.
38.41.060.A.12 Streets, Roads and Alleys
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review. The proposed project location is accessed by Brenden Street which currently
exists and meets city standards.
38.41.060.A.13 Utilities
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review.
38.41.060.A.14 Educational Facilities
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review.
38.41.060.A.15 Land Use
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review. The lot dimensions comply with the zoning designation of R-3.
38.41.060.A.16 Parks and Recreation Facilities
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review. Required parkland and recreation facilities were dedicated with the original
Valley West subdivision.
38.41.060.A.17 Neighborhood Center Plan
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review.
38.41.060.A.18 Lighting Plan
Supplemental information waived by the DRC. The subject property has previously undergone
subdivision review.
P14030, Findings of Fact for HANSONLOT-163 MINOR SUBDIVISION Page 17 of 19
E. This City Commission order may be appealed by bringing an action in the Eighteenth District
Court of Gallatin County, within 30 days after the adoption of this document by the City
Commission, by following the procedures of Section 76-3-625, MCA. The preliminary
approval of this subdivision shall be effective for three (3) years from the date of the signed
Findings of Fact and Order approval. At the end of this period the City may, at the request of
the subdivider, grant an extension to its approval by the Community Development Director
for a period of mutually agreed upon time.
DATED this day of
ATTEST:
rf , 2015.
BOZEMAN CITY COMMISSION
APPROVED AS TO FORM:
t
G ULLIVAN
City Attorney
P14030, Findings of Factfor HANSONLOT-163 MINOR SUBDIVISION Page 18 of 19
APPENDIX A - PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses:
The subject property is zoned "R-3" (Residential Medium Density District). 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.
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 B - DETAILED PROJECT DESCRIPTIONAND BACKGROUND
Project Description
The property owners, Theodore and Vanessa Hanson, 4276 Brendon Street, Bozeman, MT
59718, represented by Madison Engineering, 895 Technology Blvd., Bozeman, MT 59718
submitted a preliminary plat application for a subsequent minor subdivision approval requesting
to remove the Restricted Size Lot (RSL) designation from Lot 163 within the Valley West
Subdivision. A single -household residence is currently on the 5,000 square foot lot. No parkland
is required for this subdivision. No subdivision or zoning variances are requested. No public
comment has been received.
At the time of Valley West Subdivision approval, the Restricted Size Lot (RSL) designation was
a provision of the affordable housing requirement. The RSL provision had a built in sunset date
which has since passed and no new RSL lots are being created. RSL designation required the
total floor area of a unit on an RSL lot to not exceed a floor area ratio of 1:3.3. For example, if
the lot is 5,000 square feet the square footage of the house cannot exceed 1,515. The plat also
established that Accessory Dwelling Units/Auxiliary Apartments are not allowed on RSL lots.
The RSL designation also prohibited accessory dwelling units. By removing the RSL designation