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HomeMy WebLinkAbout04-04-16, Gallik, Pine Meadows Subdivision Brian K. Gallik GALLIK, BREMER & MOLLOY, P.C. Jecyn N.Bremer Attorneys at Law James P.Molloy 777 East Main Street, Suite 203 Post Office Box 70 Bozeman, Montana 59771-0070 (406) 404-1728 , brian@galliklawfirm.com R f�, jbremer@galliklawfirm.com jim@galliklawfirm.com [APR 04 2016 _ UC{ rAn I IVILN 1 01 April 2016 GO MUNI IY DEVELOPMENT City of Bozeman Department of Planning and Community Development Alfred M. Stiff Professional Building 20 East Olive Street P.O. Box 1230 Bozeman, Montana 59771-1230 ATTN: Planning Board VIA EMAIL & HAND DELIVERY RE: Pine Meadow Subdivision Preliminary Plat Application; No. 16-041 Honorable Members of the City of Bozeman Planning Board: On behalf of our clients, the Smith Subdivision neighbors, we respectfully provide the following comments and concerns with respect to the proposed Pine Meadow Subdivision Preliminary Plat Application. The Smith Subdivision, where our clients have long-lived, is located directly across Valley Drive from the proposed 18-lot Pine Meadow Subdivision. See, the 1968 map of the Smith Subdivision attached as Exhibit A and incorporated by reference. Oddly, no mention was made of the Smith Subdivision in the staff report, although the report does mention the recently approved Valley Meadows subdivision located to the east. See, Staff Report for the Pine Meadow Major Subdivision, page 2. The Smith Subdivision consists of eight (8) lots on the west side of Valley Drive and the tract of land proposed for the Pine Meadow subdivision, located on the east side of Valley Drive, which has remained undeveloped until now. The entirety of the Smith Subdivision is subject to the Smith Subdivision Building Restrictions and covenants dated March 1, 1967, recorded June 7, 1967, Book 23 of Miscellaneous at page 456, records of Gallatin County ("Covenants"). A copy of these Covenants is enclosed as Exhibit B, which are incorporated by reference. This too was not mentioned in the staff report. The Smith Subdivision neighbors, who live on the west side of Valley Drive, are not opposed, per se, to development. They are, however, concerned about the Application,as presently proposed. Many of our clients have lived in their homes for 30 years or more, and while a few homeowners are relatively new to the neighborhood,they feel as passionately about the neighborhood as the long-time residents. One concern they all share is that the Pine Meadow Subdivision proposes more than double the density of the adjacent lots to the west— 18 as compared with eight (8), which will result in unmitigated impacts to the existing neighborhood and a disparate development pattern. The Smith Subdivision neighbors, many of whom live on fixed incomes, do not want, nor can they afford, to bear additional costs as a result of the Pine Meadow development, nor should they be subject to the unmitigated impacts of that development. They have expressed their concerns to the developer, and to City staff at a meeting arranged to discuss annexation. Several neighbors attended the Design Review Committee to learn more about the proposed development, at which they were not able to comment, but they did speak with the developer after both of those meetings, in an attempt to reach a compromise. Annexation The preliminary plat application indicates "the developer, City of Bozeman Public Works Department, and City of Bozeman Engineering Department have been, and will be working to try and get the eight lots west of Pine Meadow to annex into the City of Bozeman." The Smith Subdivision neighbors have given much consideration to the prospect of annexation and the costs associated therewith. The developer has provided two estimated costs of annexation, the second reduced if sidewalks were not required to be installed at the time on the Smith Subdivision side. At the lowest estimate, the costs to Smith Subdivision residents to annex is over$400.00 per month more than they are currently paying. That is just an estimate and some neighbors have used the City's calculation to find that the costs are $500.00 per month or more than they are currently paying. Even considering a twenty- year payoff period, the costs are just too high for the neighbors, many of whom are retired and on fixed incomes or just starting out with their first homes. The Smith Subdivision neighbors understand from meeting with City staff that they will not be forced to annex. They feel they have affordable housing now, and if they were forced to annex, this would no longer be the case. They appreciate being able to remain in their homes as long as possible. Covenants As noted previously, the proposed Pine Meadow Subdivision is part of a larger subdivision, the Smith Subdivision, of which our clients belong. Even though it was annexed into the City, the Pine Meadow tract is subject to the Covenants for the Smith Subdivision. See, Exhibit B. These covenants run with the land, notwithstanding the annexation and proposed preliminary plat application and additional covenants proposed by the developer. Id., page 3. Restrictions Run with the Land. The covenants and restrictions set forth in this document are to run with the land and are to be binding upon any person or persons who claim ownership or an interest in any lot within the subdivision, and are binding upon the heirs, assigns and successors of any person who becomes involved with the lots within the subdivision. Upon completion of the sale of all lots within 2 the subdivision by the developers, the restrictions herein described may be altered by unanimous, written recorded consent of all owners of lots within the limits of the subdivision. Id. (emphasis added). The developer was on notice of the recorded Covenants when he purchased the property, recognizes their applicability, and has requested that the Smith Subdivision neighbors release him from complying with those covenants. See, Removal of Real Property From [sic] Building Restrictions for Smith Subdivision, pages 1-2, attached as Exhibit C and incorporated by reference. Our clients, who retain the ability to enforce the covenants, have indicated their willingness to do so, if he will reduce the density of Pine Meadow so that there is not such a stark contrast with the existing Smith Subdivision. The Covenants expressly state "that the purpose of the restrictive covenants set forth herein is to assure that the platted lands are developed into a beautiful, harmonious, private residential subdivision for the benefit of all persons who construct dwellings within the limits of the subdivision." See, Exhibit B, page 2, Approval of Plans (emphasis added). The disparate development pattern of 18 lots across the street from the existing eight (8) lots is counter to the "harmonious" neighborhood contemplated by the covenants and enjoyed for decades by the Smith Subdivision neighbors. Again, they are not opposed to development,just development that is incompatible with their existing neighborhood as promised to them by the covenants. The Smith Subdivision neighbors have requested that the developer respect the requirements of the Covenants—in particular the setbacks, which provide that "no building shall be built within a distance of 25 feet of the front line of a lot or within a distance of 12 feet from the side of any lot." See, Exhibit B, page 1, Setbacks. Applying those setbacks to the proposed Pine Meadow Subdivision, and reducing the number of lots, will result in a development that is more consistent and harmonious with the remainder of the Smith Subdivision—the expressed purpose of the covenants. With respect to conflicts with covenants, the City's Unified Development Code ("UDC") provides as follows: This chapter is not intended to affect any existing_private agreement or condition such as a deed restriction or covenant. If any provision of this chapter is more restrictive or imposes a higher standard than any such private restriction, the requirements of this chapter shall control. Where the provisions of any private restriction are more restrictive or impose higher standards than the provisions of this chapter, the city has no duty to enforce such private restrictions or advise of their existence. The city may enforce a private restriction if the city is a party to such covenant or restriction, if such restriction was required by the city, or if it was relied upon by the city during the land development process in order to meet the requirements of this chapter or another required standard. The city may prohibit private restrictions that violate matters of law. Covenants are subject to the requirements of section 38.38.030. See, Sec. 38.01.100. 3 While the City's zoning requirements may not be intended to affect the covenants, that is precisely the result in this case. We understand from the developer and the staff report the proposed 18 lots are the minimum amount required by the zoning requirements. While the Smith Subdivision covenants were not required by the City, they were relied upon by the City in the annexation and zoning of that property as R-1 (Residential Single Household Low Density), as opposed to the R-2 or R-3 designation proposed by the applicant for annexation. This is evident by the January 13, 2013 letter submitted by Brian Gallik on behalf of the Smith Subdivision, and the testimony provided at that annexation hearing, and the decision made by the City to approve the R-1 zoning designation. A copy of the January 13, 2013 letter is attached as Exhibit D and incorporated by reference. Given that, the City may enforce the covenant pursuant to Section 38.01.100 above. The Smith Subdivision residents ask that you do so. Unmitigated Impacts Again, the Smith Subdivision neighbors are not opposed to development per se, however they are concerned about unmitigated impacts to their subdivision resulting from the proposed 18-lot Pine Meadow Subdivision, including viewshed, traffic, and noise, among other impacts to the health, safety and welfare of the local community. Adding 18 homes on the four (4) acre tract across from their eight (8) homes is a significant change to Valley Drive. It will exponentially increase traffic and noise, and will obstruct the currently open views toward the Bridger Mountains. They have asked the developer to take these impacts into consideration, as well as the setbacks provided by the Covenants, and increase the lot sizes and reduce the number of homes to twelve—to provide a transition and a more compatible neighborhood. Previous subdivisions in the area, such as the Morgan Subdivision, east of the Pleasant Valley Subdivision, have taken into consideration the development patterns of the existing neighborhoods and provided compatibility through larger lots. There are additional concerns with respect to the likelihood of storm water runoff impacts as a result of the paving and lack of curb and gutters on the west side and the possibility of the road being higher than the driveways in the Smith Subdivision, resulting in further drainage issues. The staff report at page 25 acknowledges this potential and refers to a condition of approval, that is, "to mitigate impacts caused by the development on adjacent properties the City is requiring that the street section not increase runoff to the County properties." However, Section 2—Recommended Conditions of Approval does not include a condition 36—although condition 35 does address runoff. In addition to that condition, the neighbors request the ability to review engineered drainage plans and specifications demonstrating the lots on the west side of Valley Drive road will not be impacted, and assurances from the developer and the City of the same, and in the event of adverse impacts, that the developer will address those impacts. Finally, if the Pine Meadow Subdivision Preliminary Plat Application is approved, our clients request that a condition ensuring that residents' access to Valley Drive and their homes not be disrupted during construction activities. 4 Conclusion These are our clients' concerns about the proposed Pine Meadow Subdivision. The Smith Subdivision neighbors respectfully request that your recommendation to the City Commission recognize and request that the City enforce the requirements of the Covenants as allowed by the City's regulations, and require that the developer reduce the number of lots in the proposed Pine Meadow subdivision to mitigate impacts resulting from the proposed subdivision. See, Sec. 38.01.100, UDC. In addition, the neighbors request that the Planning Board recommend to the City Commission that condition 35 should be amended to allow the existing Smith Subdivision neighbors to review engineered drainage plans and specifications demonstrating the lots on the west side of Valley Drive will not be impacted, and to include assurances from the developer and the City of the same, and in the event of adverse impacts, that the developer will address those impacts. The neighbors also request a condition be included to ensure that residents' access to Valley Drive and their homes not be disrupted during construction activities, if the Application is approved. We appreciate your consideration of these requests. Please do not hesitate to contact me if you have any questions with respect to this request or the neighboring property owners' concerns. S1 CTFULLY, GAL IK, BREMER, &MOLLOY, P.C. Je y . Bremer ttor y at Law Encl. c: client Greg Sullivan, City Attorney Tom Rogers, Senior Planner 5 Please return to: Joseph M. Horner Melissa L. Homer 420 N. 22"d Ave Bozeman, MT 59718 REMOVAL OF REAL PROPERTY FROM BUILDING RESTRICTIONS FOR SMITH SUBDIVISION A. WHEREAS that certain Pine Meadows Annexation Agreement was recorded on March 20, 2014 as Document No. 2476621 and that certain Commission Resolution No. 4501 was recorded on January 19, 2014 as Document No. 2473482 all in the office of the Clerk and Recorder, Gallatin County, Montana annexing into the City of Bozeman the following described real property: A parcel of land being the remainder of Tract 7 of Smith's Subdivision lying in the N'/z of the NW'/4 of Section 11, Township 2 South, Range 5 East, P.M.M., and being more particularly described by the following metes and bounds, to=wit: Beginning at a point on the section line common to Sections 2 and 11, which point bears North 89046' East, a distance of 640.55 feet from the section comer common to Sections 2, 3, 10 and 11, Township 2 South, Range 5 East, P.M.M., thence from said point of beginning South 00°44' West on and along the East right of way line of Valley Avenue, a distance of 1023.25 feet to the beginning of a 7030' curve right, having a radius of 794.0 feet, through a central angle of 11 °00', for a distance of 152.44 feet to the end of the curve, thence South 11 '44' West, a distance of 21.06 feet, to the beginning of a 7°30' curve left, having a radius of 734.0 feet, through a central angle of 10058', for a distance of 140.47 feet to the end of the curve, thence South 00°46' West, a distance of 0.52 feet to the East-West centerline of the Northwest '/4 of said Section 11, thence North 89027' East on and along said centerline, a distance of 165.26 feet to the Southeast corner of Tract 7, thence North 00°44' East on and along the East line of said Tract 7, a distance of 1170.15, thence South 89°46' West, a distance of 10.00 feet, thence North 00044' East parallel to the East line of Tract 7, a distance of 164.00 feet to a point on the section line common to Sections 2 and 11, thence south 89046' West on and along said section line, a distance of 123.15 feet to the point of beginning, according to Certificate of Survey No. G-27-A on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. EXCEPTING THEREFROM that portion conveyed to the City of Bozeman in Quit Claim Deed recorded August 26, 2005 as Document No. 2199510. ("the Pine Meadows Property); B. WHEREAS the Pine Meadows Property is subject to those certain Building Restrictions for Smith Subdivision recorded in Book 23 of Miscellaneous, page 456 ("the Smith Building Restrictions"); and C. WHEREAS, JOSEPH M. HORNER and MELISSA L. HORNER, as the owners of the Pine Meadows Property, intend to record a separate subdivision plat for the Pine Meadows Property, which will be subject to a separate set of covenants, conditions and restrictions and the zoning regulations of the City of Bozeman, and therefore wish to remove the Pine Meadows Annexation Property from the terms and conditions of the Smith Building Restrictions, COMES NOW, JOSEPH M. HORNER and MELISSA L. HORNER as the owners of the Pine Meadows Property, and COMES NOW, ERIC ROBERT STAKER, REECE SILVE III, RACHEL E. SILVE, KENNETH K. PAULSON, GREG A. KINDSCHI, MURRAY GAYLE THOMPSON and MARY F. THOMPSON, Trustees under the Gale and Mary Thompson Living Trust dated October 4, 2007, GILBERT D. STOBER, SAM C. POWELL JR., CAROLYN S. POWELL, MARK BURR and PATRICE BURR, as all of the owners of the following described real property: Lots 1, 2, 3, 4, 5, 6, 7 and 8 of the Rearrangement of Tract 7 of Smith Subdivision, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana (Plat Reference: G-27) EXCEPTING THEREFROM that portion conveyed to the City of Bozeman by Deed recorded June 8, 2006 as Document No. 2230544 and re-recorded July 5, 2006 as Document No. 2233641 and hereby agree as follows: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. The Smith Building Restrictions are hereby amended to remove the Pine Meadows Property from the terms and conditions of the Smith Building Restrictions. The Pine Meadows Property shall no longer be subject to the terms and conditions of the Smith Building Restrictions. 3. This Removal of Real Property from Building Restrictions for Smith Subdivision shall run with the land and shall benefit and bind the heirs, successors, and assigns of the owners of the real property described above. DATED this day of 2016 Joseph M. Horner Melissa L. Horner SIGNATURE PAGE for that Removal of Real Property from Building Restrictions for Smith Subdivision: Executed by GREG A. KINDSCHI, as the owner of the following described real property in Gallatin County, Montana, to-wit: Lot 4 of the Rearrangement of Tract 7 of Smith Subdivision, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana (Plat Reference: G-27) DATED this day of 2016. Greg A. Kindschi STATE OF _ ) ss. County of ) On this day of 2016, before me, a Notary Public in and for said State, personally appeared GREG A. KINDSCHI, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same. Printed Name: Notary Public for the State of Residing at My commission expires: • ' - > ., m e y -�' mo I ug m nsv, mj '" Ir°' oa In o o = Fb II _m X jW� C 4v Go N vo` �� n mm• -I rz ° ° � a >< ca ,+ va m �'m aaLr '. 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Wood, stone, or aluminum g, or eldi.ng approved by the developers. No prefabricated buildings which are in the nature of a trailer house and are made of metal shall be placed or constructed upon the premises. In no case shall a garage or other part of the building on such lot be occupied prior to the Completion of the dwelling upon the same lot. No structure shall be moved from one location, either in this neighborhood or elsewhere, and placed upon any lot of the development. SIZE OF DWELLING No dwelling shall be constructed of less than 1,000 square feet exclusive of garage, breezway or utility area, on any lot. ETBACKS No building or part of a building shall be erected or maintained within less distance of the front and side lines of the lot upon which or is built than as follows: No building ahall be bu-ilt distance _ ' fee of the front line Of a lot or within a distance o , fee rom t sick Pro3ections forminga uany lot. part of he body of a residence building, constructed as a part of such building, shall be set within the distances from the front , and side of a lot as described above., provided that this shall not apply to V steps, porches not permanently enclosed, terraces, patios or eaves, downspouts, or other customary mouldings or attachments to the main building wall. The grade is to be established at the center of the front building Line and center of the street and is to be approved by the developers. OUT-BUILDINGS AND APPURTEHANCSS No unsightly trailer, no house trailer of any kind except a camping trailer, no basement, tent, shack, barn or other out-building or appurtenances of any kind or nature except a tool shed for garden tools, or parts thereof, shall be kept, erected, stored or maintained on any portion of that or any lot. SIGNS No commercial signs shallibe erected upon the premises-of any lot except a for sale sign of the ordinary size used by real estate brokers may be tempor- arily placed upon the premises of 'a lot. ANI�_tAIS Nothing stated herein shall prevent the keeping of a dog, cat, bird or similar pets, upon the premises of any lot except that they shall not be kept upon the premises of any lot for breeding or commercial purposes. No livestook or arty farm animals such as cows, horses, sheep or similar animal shall be kept upon the premises of any lot. ; FENCES AND WATT A fence or wall constructed upon any lot shall be-'of a height and tenth ��and of materialslapproved by the developers. �' EXHIBIT GARAGES AND DREEZWAXS Shall e cons rueted of such materials and so designed as to be harmonious Architecturally with the dwelling. ]DISPOSALSEWG_ No outside toilet shall be erected upon any lot. All sanitary sewers or waste shall be disposed of by other sanitary means or by a septic tank of a size and type adequate to properly treat such sewage or taste, same to be . Installed in accordance with the requirements of the Montana State Hoard of Health, so as to avoid contamination of wells. DEVEWpp= The developers are the undersigned persons, their heirs and/or assigns. APPROVAL OF PLANS Approval of plans: No building or structure of any kind, nor any addition thereto, shall be constructed, erected, or placed upon any lot, in the subdivision, nor shall any major alteration of any structure upon any lot, until Plans and specifications for that same are submitted to and approved by the developers. This shall not prevent the owner of any building from altering the inside of any structure already upon amy lot. Tirtr d.evalopera shill hdve th1 -sight to -refuge approval of aby such plan if the plan calls for construction, erection, or alteration disharmonious xitb the character of the development. It is understood and agreed between the developer and any purchaser or purchasers of a lot in this subdivision, that the purpose of the restrictive covenants set forth herein is to assure t a © eveloped_ '+ r va subdivision for the benefit 1:101 al-t persons x o construct dxellinAs tr3thin the J_JJ1 s 01 the subdivisiono Tlii restrictions provi ed within this document shall bind and endure to the benefit of and be enforceable by the developers or any owner or owners of any lot within the limits of this subdivision, their representatives, heirs, successors and assigns. The failure of the developers to enforce the restrictions shall not be deemed to be a waiver nor prevent enforcement by any owner or owners of any lot within the limlits of the subdivision. CONSTRUCTION AND FAILURE: TO COMPLETE CONSTRUCTIONi Any person or persons who commence the construction and erection of a building upon any lot within this subdivision shall complete construction and erection within a period of one year of at least the exterior of the building, unless such person or persons shall secure in writing the approval of the developers to extend the period of construction and erection beyond the period of one year. Should partial construction occur and not be completed within one year and there be no approval of extending the period secured in writing and it appears to the developers that completion of the construction and erection as above described is not intended by the persoh or persons constructing and erecting the building, the developers or other owners of lots within the sub- division may require the owners of the lot upon which the uncompleted building is, located by damaged, destroyed, or left in a ruined condition by fire, storm, explosion, or other cause, the owner of the lot upon which the structure is located shall remove the ruin and rubbish and.or reconstruct the building within the period of one year. 2 4 $FNBRP,BILITY Inv ation of any one or more of these covenants by Judgments decrees (. 1� or order of any court shall in no way affect any of the provisions which ��- shall remain in full foroe and effect. RESTRICTIONS RUN WITH THE LAND The oovenante and restrictions set forth in this document are to run with the ].and and are to be binding upon any person or per4ons who claim ownership or an interest in any lot within the subdivision, and are binding upon the heirs, assigns and successors of any person who becomes involved in the lots within the subdivision. Upon completion of the sale of all lots within the subdivision by the developers, the restrictions herein described may be altered by an unanimous, written, recorded consent of all owners of lots Within the limits of the subdivision. HARRIET X. SMITH WILBUR E. SMITH Filed for record June 7, 1967 at 8:30 A.M. in Book 23 of Miscellaneous at page 456, records of Gallatin -county, Montana. Please return to: Joseph M. Horner Melissa L. Homer 420 N. 22"d Ave Bozeman, MT 59718 REMOVAL OF REAL PROPERTY FROM BUILDING RESTRICTIONS FOR SMITH SUBDIVISION A. WHEREAS that certain Pine Meadows Annexation Agreement was recorded on March 20,2014 as Document No. 2476621 and that certain Commission Resolution No. 4501 was recorded on January 19, 2014 as Document No. 2473482 all in the office of the Clerk and Recorder, Gallatin County, Montana annexing into the City of Bozeman the following described real property: A parcel of land being the remainder of Tract 7 of Smith's Subdivision lying in the N'/2 of the NW'/ of Section 11, Township 2 South, Range 5 East, P.M.M., and being more particularly described by the following metes and bounds, to-wit: Beginning at a point on the section line common to Sections 2 and 11, which point bears North 89*46' East, a distance of 640.55 feet from the section comer common to Sections 2, 3, 10 and 11, Township 2 South, Range 5 East, P.M.M., thence from said point of beginning South 00044' West on and along the East right of way line of Valley Avenue, a distance of 1023.25 feet to the beginning of a 7°30' curve right, having a radius of 794.0 feet, through a central angle of 11 °00', for a distance of 152.44 feet to the end of the curve, thence South 11 °44' West, a distance of 21.06 feet, to the beginning of a 7°30' curve left, having a radius of 734.0 feet, through a central angle of 10058', for a distance of 140.47 feet to the end of the curve, thence South 00°46' West, a distance of 0.52 feet to the East-West centerline of the Northwest '/ of said Section 11, thence North 89027' East on and along said centerline, a distance of 165.26 feet to the Southeast corner of Tract 7, thence North 00°44' East on and along the East line of said Tract 7, a distance of 1170.15, thence South 89°46' West, a distance of 10.00 feet, thence North 00044' East parallel to the East line of Tract 7, a distance of 164.00 feet to a point on the section line common to Sections 2 and 11, thence south 89046'West on and along said section line, a distance of 123.15 feet to the point of beginning, according to Certificate of Survey No. G-27-A on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana. EXCEPTING THEREFROM that portion conveyed to the City of Bozeman in Quit Claim Deed recorded August 26, 2005 as Document No. 2199510. ("the Pine Meadows Property"); EXHIBIT C B. WHEREAS the Pine Meadows Property is subject to those certain Building Restrictions for Smith Subdivision recorded in Book 23 of Miscellaneous, page 456 ("the Smith Building Restrictions"); and C. WHEREAS, JOSEPH M. HORNER and MELISSA L. HORNER, as the owners of the Pine Meadows Property, intend to record a separate subdivision plat for the Pine Meadows Property, which will be subject to a separate set of covenants, conditions and restrictions and the zoning regulations of the City of Bozeman, and therefore wish to remove the Pine Meadows Annexation Property from the terms and conditions of the Smith Building Restrictions, COMES NOW, JOSEPH M. HORNER and MELISSA L. HORNER as the owners of the Pine Meadows Property, and COMES NOW, ERIC ROBERT STAKER, REECE SILVE III, RACHEL E. SILVE, KENNETH K. PAULSON, GREG A. KINDSCHI, MURRAY GAYLE THOMPSON and MARY F. THOMPSON, Trustees under the Gale and Mary Thompson Living Trust dated October 4, 2007, GILBERT D. STOBER, SAM C. POWELL JR., CAROLYN S. POWELL, MARK BURR and PATRICE BURR, as all of the owners of the following described real property: Lots 1, 2, 3, 4, 5, 6, 7 and 8 of the Rearrangement of Tract 7 of Smith Subdivision, Gallatin County, Montana, according to the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana (Plat Reference: G-27) EXCEPTING THEREFROM that portion conveyed to the City of Bozeman by Deed recorded June 8, 2006 as Document No. 2230544 and re-recorded July 5, 2006 as Document No. 2233641 and hereby agree as follows: 1. The foregoing recitals are true and correct and are incorporated herein by reference. 2. The Smith Building Restrictions are hereby amended to remove the Pine Meadows Property from the terms and conditions of the Smith Building Restrictions. The Pine Meadows Property shall no longer be subject to the terms and conditions of the Smith Building Restrictions. 3. This Removal of Real Property from Building Restrictions for Smith Subdivision shall run with the land and shall benefit and bind the heirs, successors, and assigns of the owners of the real property described above. DATED this day of , 2016 Joseph M. Homer Melissa L. Horner James H. Goetz GOETZ, GALLIK& BALDWIN, lP Telephone Brian K.Gallik Attorneys at Law (406)587-0618 Robert K.Baldwin 35 North Grand 59715 Facsimile J.Devlan Geddes P.O. Box 6580 (406)587-5144 Trent M.Gardner Bozeman,Montana 59771-6580 bgallik@goetzlawfrm.com Benjamin J.Alke Kyle W.Nelson Spencer C.Thomas January 15, 2013 BY HAND Bozeman Zoning Commission C/o City of Bozeman Planning Department 20 E Olive St P.O. Box 1230 Bozeman, MT 59771 RE:Pine Meadows Zone Map Amendment Honorable Members of the Bozeman Zoning Commission: This firm represents the concerned citizens of the Smith Subdivision which is part of a larger subdivision. The Applicant seeks to peel off its real property and annex into the City of Bozeman, with zoning designations of R-2 and R-3. My clients oppose the proposed zoning designations because that density is inconsistent with: (1) the covenants applicable to this property; (2) the applicable surrounding land use density; (3) the character of their neighborhood; and (4) the principles set forth in the Bozeman Community. They believe a zoning designation of R-1 is the appropriate density and consistent with the covenants applicable to the subject property. As you know, the property at issue is, which is part of a larger subdivision, is not located within the corporate limits of the City of Bozeman. It is located on the east side of Valley Drive. My clients' properties, located west of and adjacent to Valley Drive, are also not within the corporate limits of the City of Bozeman. My clients' properties are private, single family residences and, like the land at issue, are subject to Building Restrictions, dated March 1, 1967 (copy attached as Exhibit A). With respect to the covenants applicable to this property, the Applicant states that the property at issue is not subject to the attached covenants. This allegation is false. In fact, the deeds transferring ownership of the subject property to the Applicant make clear explicitly that the land is subject to the covenants. See Exhibits B & C. EXHIBIT 2 The relevant deeds that establish the existence an application of the covenants to the subject property begin with the Warranty Deed (Exhibit B) dated February 27, 1990. In that document, Harriet E. Smith (one of the owners of the land that placed the restrictive covenants on record with the Clerk and Recorder) transferred her interest and the interest of her deceased husband, Wilbur E Smith, to Perry Metcalf. That warranty deed states: "Subject to existing easements . . . and subject to restrictions filed March 1, 1967 in Rook 23 of Miscellaneous of Gallatin County at page 456. Exhibit B. Several years later, Perry Metcalf transferred the subject property to the applicant, Lorie Hovanec. See Exhibit C. This transfer was subject to "covenants . . . and agreements of record. . . ." In sum, the property at issue is subject to the `Building Restrictions for Smith Subdivision, March 1, 1967." (Exhibit A). As stated, my clients' properties, also subject to the same building restrictions as the Applicant, have constructed private, residential improvements on their lots. There are no duplexes or town homes. This fact is consistent with the Building Restrictions attached as Exhibit A. The covenants make clear that "[a]ll lots shall be used for private residential construction purposes only." Exhibit A, p. 1 ¶ 1. The restrictions, in turn set forth the applicable setbacks (¶3) and, on page 2, the covenants state, in relevant part as follows: Approval of plans: No building or structure of any kind, nor any addition thereto, shall be constructed, erected, or placed on any lot in the subdivision . . . until plans and specifications are submitted to and approved by the developers. [T]he developers shall have the right to refuse approval of any such plan if the plan calls for construction, erection, or alteration of any such plan if the plan calls for construction, erection, or alteration disharmonius with the character of the development. It is understood . . . that the purpose of the restrictive covenants set forth herein is to assure that the platted lands are developed in a beautiful, harmonious, private residential subdivision for the benefit of all persons who construct dwellings within the limits of the subdivision. Exhibit A, p.2. Moreover, the covenants give the owner, or owners of any lot within the subdivision the authority to enforce these covenants. An examination of the subdivision demonstrates that multi-family houses are not consistent with the character of the neighborhood. Instead, all homes within the subdivision were approved by the developers, and built by the owners, as single family residences. Accordingly, the construction of duplexes and other non-single family homes on the property, under R-2 and R-3 zoning is inconsistent 3 with the requirement of a "private residential" development. Instead, it is R-1 zoning, which does not permit multi-family homes, but only single family residences, is the appropriate designation that is consistent with the covenants applicable to this property. A brief review of the case law with respect to this issue makes clear that changing the zoning from a single family residential development to multi-family dwellings, can constitute illegal spot zoning. Young, 4 American Law of Zoning, § 5.16 at 417-418. See also Schneider, v. Calabrese, 291 A.2d 326 (Pa 1972); Anderson v. Seattle, 390 P.2d 994 (Wash. 1964) (an amendatory zoning ordinance rezoning realty from low density to high density residential to allow construction of six-family unit townhouses in a neighborhood presently zoned and entirely utilized for low density residential purposes constituted illegal spot zoning.) See also Cech Builders, Inc. v. Village of Westmont 455 N.E.2d 753 (111. App. 1982 (Rezoning property from residential to multifamily dwelling is improper where development plans do not provide for adequate street access, create traffic safety problems and other issues); Kirk v. Town of Westlake, 373 So. 2d 601 (La. Ct. App. 1979) (A denial of rezoning to multi-family from residential is proper on a showing that the property is surrounded by residential users); Smith v. City of Gulfport, 269 So. 2d 345 (Miss. 1972) (rezoning from residential to apartment is invalid in absence of any change since the original zoning. When the area consists of single family residential with only one street entering the subdivision, the change is improper where circumstances have not changed); Nelson v. City of Selma, 881 F.2d 836 (9" Cir. 1989) (a denial of rezoning to a high density from low density on annexation is valid. Objections by the neighbors and proof of a substantial number of apartment units within the general vicinity justify the city's concern regarding overpopulation. A determination that the area woulc be overpopulated, the traffic congestion would be substantially increased and that the welfare of the neighborhood and property values would suffer constitutes sufficient reasons for denial). With respect to the application pending before you, the vicinity map on page 1 of the Staff Report makes clear that the properties to the north, west and south are zoned R-1 and my clients' properties, located to the immediate west is single family residential. There is only one (1) road leading out of and into the subject property. Adding multi-family units on the subject property could substantially increase the amount of traffice on Valley Road, thus adversely impacting my clients' property. In addition, there are a substantial number of apartments and other multi-family dwellings to the east of the subject property. Moreover, there is no evidence of a need for more multi-family residences in the area. Instead, it appears, from reading the staff report, that the request for multi- family housing and greater density, is to make the development more profitable. See Staff Report at p. 3 ("Since R-2 zoning would allow duplexes to be constructed on the property, this additional density may help to offset needed infrastructure costs to develop the property"). While the developer would like increased density in order to increase the profitability of his or her development, such considerations are irrelevant. Instead, the law requires that the Commission look at the character of the existing neighborhood, land use patterns, and the like. 4 Thus applied, it is abundantly clear that this application is inconsistent with many of those requirements at that level of density. In sum, a review of the existing zoning, the existing single family development, and the characteristics of the property makes clear that increased density, as allowed by R-2 and R-3 zoning is inconsistent with the character of the neighborhood, will increase traffic and may adversely impact my clients' property values. It is also inconsistent with the covenants on the property. For these reasons, we respectfully request that the Zoning Commission recommend a denial of R-2 and R-3, and, instead, forward a recommendation of R-1. Respectfully submitted, Brian K. Gallik BKG/pal Attachments cc: Clients U:IBRLWPATrMWth Sub"an(ccnamad ckhzm aOV4ring Commisfm i(1-1 S-3)wpd BUILDING RF:TRICTIONS QQk�• FOR sNITH SUBDIVISION ry [ L " MARCH 11, 1967 P�lgfl�-C �f7 fb /ha/x .sUILLDJUr4 -- w, o� ac► z h lk"4p tsn kUt f.cA AZ . loth s 11 a for rivate �e6idential aonct o a fG� �- Ood' ' enees build the eon s e conctruc ed of wood or brick or nstone, or aluminum n.fa;, or siding approved by the developers. No prefabricated buildings which are in the nature of a trailer house and are made of metal shall be placed or constructed upon the premises. In no case shall a garage or other part of the building on such lot be occupied prior to the completion of the dwelling upon the same lot. He structure shall be moved from one location, either in this neighborhood or elsewhere, and placed upon any lot of the development. SIZE OF DWELLING No dwelling shall be constructed of less than 19000 square feet exclusive of garage, breesway or utility area, on any let. SETBACKS No building or part of a building shall be erected or maintained within less distance of the front and side lines of the lot upon which or is built than as follows: No building sba-U be built • distance �fe'e'tyof the of a lot or within a distance o 12 Pee ist t s lot. Projections forming a part of he body of a residence building, constructed as a part of such building, shall be set within the distances from the front and side of a lot as described above., provided that this shall not apply to �J steps, porches not permanently enclosed, terraces, patios or eavesl downspouts, or other customary mouldings or attachments to the gain building wall. The grade is to be established at the center of the front building line and center of the street and is to be approved by the developers. OUT-BUILDINGS AND APP1fMBANGW No unsightly trailer, no house trailer of any kind except a camping trailer, no basement, tent, shack, barn or other out-building or appurtenances of any k9Ad or nature except a tool shed for garden tools, or parts thereof, shall be kepts erected, stored or maintained on any portion of that or any lot. SIGNS No commercial signs shallibe erected upon the premises-of any lot except a for sale sigh of the ordinary size used by real estate brokers may be tempor- arily placed upon the premises of a lot. AN�1AI,g . Nothing stated herein shall prevent the keeping of a dog, cat, bird or similar pets, upon the premises of any lot except that they shall not be kept Upon the premises of any lot for breeding or commercial purposes. No livestock or any farm animals such as cows, horses, sheep or similar animal shall be kept upon the premises of a" ].ot, FENCES AND WALLS i A fence or wall,__,;and upon any lot shall be"of a height and length , nd of snaterialsfapproved by the developers, GARAGES AND BRE-EzwAYS 8fiall be cons rueted of such materials and so designed as to be harmonious architecturally with the dwelling. WAGE DISPOSAL No outside toilet shall be erected upon any lot. All sanitary sewers or waste shall be disposed of by other eahitary means or by a septic tank of a size and type adequate to properly treat such sewage or waste, same to be . installed in accordance with the requirements of the Montana State Board of Health, so as to avoid contamination of wells. DEVELOPERS The developers are the undersigned persons, their heirs and/or assigns. APPROVAL OF PLANS Approval of plans: No building or structure of any kind, nor any addition thereto, shall be constructed, erected, or placed upon any lot, in the subdivision, nor shall any major alteration of any structure upon any lot, until plans and specifications for tho same are submitted to and approved by the developers. This shall not prevent the owner of any building from altering the inside of any structure already upon any lot. Thy developers sherll httve t r t tv refuse &,pproval of ediy Stich plan if the pian eaUs for construction, erection, or alteration disharmonious with the character of the development. It is understood and agreed between the developer and any purchaser or purchasers of a lot in this subdivision, that the purpose of the restrictive covenants set forth heroin is to assure t a e evelo for the o a persons woo construct dwelvlin within the Unitsiof tslon e subdivision.t The restrictions provi ed within this document shall bind and endure to the benefit of and be enforceable bi the developers or any owner or owners of any lot within the limits of this subdivision, their representatives, heirs, successors and assigns. The failure of the developers to enforce the restrictions shall not be deemed to be a waiver nor prevent enforcement by any owner or owners of any lot within the limits of the subdivision. CONSTRUCTION AND FAILURE TO COMPLETE CONSTRUCTION Any person or persons who commence the construction and erection of a building upon any lot within this subdivision shall complete construction and erection within a period of one year of at least the exterior of the building, unless such person or persons shall secure in writing the approval of the developers to extend the period of construction and erection beyond the period of one year. Should partial construction occur and not be completed within one year and there be no approval of extending the period secured in writing and it appears to the developers that completion of the construction and erection as above-described is not intended by the persoh or persona constructing and erecting the building, the developers or other owners of lots within the sub- division may require the owners of the lot upon which the uncompleted building is located by damaged, destroyed, or left in a ruined condition by fire, storm, explosion, or other cause, the owner of the lot upon which the structure is located shall remove the ruin and rubbish and.or reconstruct the building within the period of one year. J 2 < $EVE?J:BILITX Inva dation of any one or more of these Covenants by Judgmentq decrees (. A or order of any court shall in no way affect any of the provisions which ' shall remain in full force and effect. RESTRICTIONS RUN WITH THE LAND The covenants and restrictions set forth in this document are to run with the land and are to be binding upon any person or per&ona who claim ownership or an interest in any lot within the subdivision, and are binding upon the heirs, assigns and successors of any person who becomes involved in the lots within the subdivision. Upon completion of the sale of all lots within the subdivision by the developers, the restrictions herein described may be altered by an unanimous, written, recorded consent of all owners of lots within the limits of the subdivision. HARRIET E. SMITH WILBUR E. SMITH Filed for record June 7f 1967 at 8:30 A.M, in Book 23 of Miscellaneous at page 456, records of Gallatiu County♦ Montana. �7 FOR VALUE RECEIVED, BARRIET E. SMITH, individually and as Personal Representative of the Estate of Wilbur E. Smith, deceased, of 5495 West D.urston, Bozeman, Montana, 59715, does hereby grant, bargain, sell, convey and confirm unto PERRY METChLF, of 222 Valley Drive, Bozeman, Montana, 59715, the grantee, the following described premises, in Gallatin County, Montana, to-wit: ng tMe remaizide � ; "zf Smith's Subdivision lying in the Ni of the NW} of Section 11; Township 2 South, Range 5 East, M.P.M. , and being more particularly described- by the following Metes and Bounds, to-wit: Beginning at a point on the section line common to Sections 2. and 11, which point bears North 89046' East. a distance of 640. 59 feet from the Section corners common to Sections 2, 3, 10 and 11 , Township 2 South, Range 5 East, M.P.M. , thence from said point of beginning South 00044' West. on and along the east right of way line of Valley Avenue; a distance of 1023.25 feet to the beginning of a 7*30' curve right, having a radius of 794 .0 feet, through a central angle of 119001 , for a distance of 152 .44 feet to the end of the curve., thence South 110441. West, a distance of 21 .•06 feet, to the beginning of .a 7030' curve left,,, having. a radius of 734.0 feet, through a central angls of 10°58 '-, for a distance of 140 .47 - feet to the end of the curve, thence ,South• 00°46' West, a distance, of 0.52 feet to the East-West centerline .of the Northwest I of said Section 11, thence North- 89027' East on: and along said centerline a distance of 165 .26 feet to• the Southeaet• corner of- Tract 7 , . thence North 00°44! East on and along the East line of siid Tract 7, a distance of 1170.15, thence South 89046' West a distance of 10.00 feet, thence North 00*44' East- parallel to the East lirie. of said Tract 7 , a distance of 164,00 feet to a point on the section line common to sections 2 and 11, thence South 89046' West on and along said section line,_ a distance of 123.15 feet to the point of beginning, containing 4 .154 acres, all in accordance with Certificate of. Survey #G-27A filed in the office of- the County Clerk and Recorder .of. Gallatin County, Montana, on the 25th day. of November, A.D. , 1981; xisting easements for roads, ditches, an. . uil ty lines as .the same .now exist and subject to restriction 149rici 71 Miscellaneous Records of Gallatin County, at page 456; TO -HAVE AND TO HOLD the said premises, with their appurtenances unto the said Grantee, his heirs and assigns forever, And the said Grantor does hereby covenant to. and with the said Grantee, that she is the owner in fee simple of said premises, that they are free from all incumbranees and that she will warrant and defend the same from all lawful claims whatsoever. DATED this P7 day of February, 1990. arriet E. mith, individually J arr et E. mith, ersonal Representa- tive of the Estate of Wilbur E. Smith, deceased. STATE OF MONTANA ) ) ss. County of Gallatin ) On this 104- day of February, 1990, before- me, a. notary public for said State, personally apple red Harriet E. Smith, known to me, individually and as .p "on4l representative of the Estate of Wilbur E. Smith, CW.e 919 ed.,l''' to be the person whose name is subscribed to the*�,� "3:ii"'''+•p:��'�,: instrument, and acknowledged to me that she exediL '. - same• Notary P blic f he State . 6 b tap,''� Residing at Bozeman, Montana ;�r,5, ' My Commission expires January 14 0-gLa, '!'` Iri�clto MA"IP 209214 0410 01 MOnt►, Coenty of Gallatin. ss Filed for rewd March 6th jig 90 �11:23A �,� a recordod In Cook 109 Of DEEDS ---� � p 0 4170 • y Recorder. By RT: Perry Metcalf 222 Valley Dr. Bozeman, MT 59715 $10. 00 pd, • . i WARRANTY DEED �,+� 191 ' 193 FOR VALUE RECEIVED,PERRY METCALF hereinafter referred to as the Grantor, of 3921 South Via Del Trogon, Green Valley, Arizona 85614-5401, does hereby grant, bargain, sell, convey and confirm unto LORIE L HOVANEC the Grantee, of P.O." Box ?408N, Anchorage, Alaska 99824, the following described premises in Gallatin County, Montana, to wit: A parcel of tend being the nmWnder of Tract 7 of Smith's Subdivision lying In the N% of the NWV4 of Section 11, Township 2 South, Range 5 East, P.M.M., and being more particularly described by the following metes and bounds, to-wit: Beginning at a point on the section line common to Sections 2 and 11, which point bears North 89°4V East,a distance of 640.55 feet from the section corner common to Sections 2,3,10 and 11,Township 2 South, N Range 5 East, P.M.M., thence from said point of beginning South W44' West on and along the East right of way line of valley Avenue, O a distance of 1023.25 feet to the beginning of a 7W curve right, c� having a radius of 794.0 feet, through a central angle of 1 f qOt)"', for a ►!v distance of 152A4 feet to the end of the curve, thence South 11°4W West, a distance of 21M feet, to the beginning of a 7°30' curve left, 'having a mdfus of 734A feet, through a oentral angle of 10°5B', for a distance of 140A7 beet to the end of the curare, thence South 0004V rl_ West, a distance of 0.52 feet to the East-West centerline of the Northwest %of said Section 11,thence North 89Vr Eon on and along said centerline, a distance of 16526 feet to the Southeast comer of Tract 7, thence North W41W Mist on and along the East We of said Trent 79 a distance of 1170.15, thence South W46' West,a distance of 10.00 feet, thence North 00044• Fast Parallel to the Eon line of Tract 7, a distance of 164.00 feet to a point on the section line aonimon to Sections 2 and 11, thmu s South a r4V West on and along said section Rne, a distance of 123.15 feet to the point of beginning, according to Certificate of Survey No.0-27--A on file and of record in Ow offioe of the County Clerk and Recorder of Gallatin County, Montana. TO HAVE AND TO HOLD the said premises, with their appurtenances, unto the said Grantee, her heirs and assigns forever. The said Grantor does hereby covenant to and with the said Grantee that he is the owner in fee simple of said promises that said premises are We from all encumbrances, excepting those reservations, zm= ' easements, rights of way,taxes, assessments, conditlons,,,po agreements of reaprd, and that he will warrant and defend the same from all other lawful claims whatsoever. DATED this !V--, day of Z.—_ . 1998. P RY OTCALF STATE OF ARVONA ) ss. COUNTY OF This Instrument was acknowledged before me on t•.j �j _a _ 1998, by PERRY METCALF. 7:1AC'141 SEAL VIZU NOMIC-ARC1C)M Notary Public for C State of Arizona Couffly ;W"1-29.tM ReSlcling at: My Commission Expires: ,,§ Ir.. 377139 r Stale 01 Mont., County 0f e8C43dn. Si Fbd for W0fd _WME691 4 . 19 at`. 12105P N., and recorded to Book 191 of DEED pig 193 �•�••,_ �1/aaa�..fteot�rdor. �► ,.._ puhl FEE: $12.00 RT: AMERICAN LAUD TITLE Co Warrantv Deed-mae 2