HomeMy WebLinkAbout05-16-16 Goetz, 304 W Cleveland, Public Comment May 12, 2016
City of Bozeman
Department of Community Development
Attn: Planner Brekke
PO Box 1230
Bozeman, MT 59771-1230
Re: Conditional Use Permit Application of Ian Woods, 304 W. Cleveland
Street, Bozeman
Dear Ms. Brekke:
My wife, Jill Davenport, and I live in the same block and oppose the
conditional use permit. We intend to appear at the public hearing on May 16th and
present more detailed comments but send this now to make it clear that we are in
opposition.
Sincerely,
James H. Goetz
JHG/aa
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James H. Goetz GOETZ,BALDWW& GEDDES,P. C. Telephone
Robert K.Baldwin Attorneys at Law (406)587-0618
J.Devlan Geddes 35 North Grand (zip 59715) Facsimile
Trent M. Gardner (406)587-5144 !
Benjamin J.Alke P. O.Box 6580
Bozeman,MT 59771-6580 jj� oetzl.awfirm.com
Kyle W.Nelson i
Jeff Tierney '
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Paul S.Burdett i
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May 16, 20l 6
Mayor and City Commissioners of
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City of Bozeman
a enda2bozeman.net
Re: Application for Special Use Permit by Ian Woods at 304 W.
Cleveland Street, Bozeman for a "Conditional Use Permit" for the
Commercial Use of Short Term Rentals.
Dear Mr. Mayor and Commission Members:
I am writing on behalf of my wife, Jill Davenport, myself and a number of f
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neighbors. Jill and I own our residence at 1019 S. 3rd, on the same block as
Woods' property in question. We respectfully submit that the application should be
denied. It is inconsistent with the quality of our neighborhood and with its R-1
zoning designation.
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At the outset, it should be noted that we knew and respected Ian Woods'
parents, and we have known Ian for many years and consider him a friend. It is,
for that reason, somewhat awkward and vexing to have to be at odds with him over
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this application.
However, there is a very important matter at stake the quality of our very
fine neighborhood. Allowance of short--term rentals will detract from the quality of
our neighborhood and, if unchecked, will ultimately result in a decline in property
values. Jill and I built our house 23 years ago. Like many others, we could have
decided to locate outside of town, but we made what we considered to be the i
environmentally correct choice--locating in the middle of the city. As part of that
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decision, we relied on the Bozeman Zoning Ordinance and the integrity of that
Ordinance and of the City, trusting that the quality of the neighborhood would
continue to be preserved. We have not regretted that choice because it is indeed a
fine neighborhood. We want to keep it that way.
The short-term rental application threatens to begin a process which will
severely deteriorate the quality of our neighborhood. I distinguish here between
30-day-plus rentals, which are likely to attract more responsible renters, and the
short-term rentals at issue here. Also, there is an important distinction between
absentee owners, and owners constantly on the premises who rent carriage houses, E
for example, and who will be responsible for insuring orderly behavior.
Our concerns are noise, fireworks, parking, and general rowdiness. Most
renters will be fine, but there will undoubtedly be exceptions. The main point is
that the few conditions proposed by the Planning staff are general and there is no
promise that the City can or will enforce them. There are numerous examples in
our neighborhood of college rentals which have nominal restriction on the number
of tenants. Such restrictions are routinely flouted by renters, often ignored by
absentee land owners and/or their rental agencies, and virtually never enforced by
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the City. Others will speak in greater detail to these concerns.
As a lawyer, my main concern is that the Planning staff has made its
recommendation for approval without consulting the public at all and with no
meaningful standards on which to measure the CUP application. In distinguishing
a conditional use permit from a "variance" Anderson's American Law of Zoning,
4th Ed. states:
A conditional use may be granted only if authority to do
so is articulated in the zoning ordinance. Where power to f
grant a conditional use is delegated to a zoning
administrator, he may not grant such use without
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compliance with the standards provided by the
ordinance.
Id., ¶ 20.05. In other words, a decision to grant a CUP should be made based on
guidance from concrete standards. s
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Virtually all of the conditional use provisions of the Bozeman Municipal
code, Section 38.19.110, BMC are meaningless here. For example conformance
with the "city's adopted growth policy" is useless here (see P. 10); so too are the
criteria on "setbacks" "building location," "high end open space," "landscaping"
"lighting," "site surface drainage" and others. Others may have some marginal
application, such as existing and anticipated traffic and parking. But these
conditions are treated so generally in the report they are also unconvincing and
useless. For example, it should not be a mystery to the Planning staff that we have
a restrictive parking ordinance in our neighborhood which was designed to address
improper parking by college students. To the City's credit, this ordinance has been
rigorously enforced. Yet, there is not a word in the report that addresses the issue
of how and if renters are expected to comply with that.
Regarding the problem that the so-called conditions are so general and vague '
as to be illusory, the same observations made in the report about the Woods'
property could be made about virtually any house in the R-lzone in the City of
Bozeman—they all have their landscaping in place, their open spaces and setbacks
in place and they all have some means of egress and ingress.. Under the standards
applied in the staff report, virtually every R-1 house in Bozeman, those on South
3r , on Grand, on Cleveland would qualify. Surely that is not the intent of the R-1
ordinance that CUP's be invariably granted on the most minimal of showings.
So the questions becomes, what are the special conditions that warrant
giving this property an exception to the R-1 code? After all, a "conditional" use
pen-nit must be based on specific; defined and. relevant criteria set forth to guide
decision maker. Otherwise the result in the decision is one of unfettered discretion.
Montana law sets forth the "criteria and guidance for zoning regulations."
Municipal governing body must consider the "character of the district and its
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peculiar suitability for particular uses and conserving the value of buildings and
encouraging the most appropriate use of land throughout the jurisdictional area."
Section 76-2-304, MCA.
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In fact, there are three factors in Section 38.42.6901-conditional use, BMC
which should guide the staff and this Commission. These two are:
1. Whether the property has "unique characteristics" warranting the
CUP;
2. Consideration in each case of the impact of such use
upon neighboring land; and
3. Public need for the particular use and the particular
location. j
The staff report is totally devoid of any discussion of"public need." Nor is 3
there any demonstration of why the Woods' property has "unique characteristics"
which warrant issuance of a CUP.
Regarding the impact "upon neighboring land" the report is superficial. At
page 10 under Section 5 "Staff Analysis" the report notes that its analysis and
recommendations are based on the application materials, other materials available
and "public comment." Then at several places the report notes that there has been
no public comment. (PP. 12, 14). Based on this, the report concludes there is no
material adverse effect upon abutting properties:
The required public noticing was executed for the
project. No public comment has been received with
response to the noticing at the time of this report.
f Sec. 38.42.690. — Conditional Use. A public or private use as listed in this chapter
which, because of its unique characteristics, cannot be property classified as a
principal use or accessory use in a particular district. After consideration in each
case of the impact of such upon neighboring land, and of the public need for the
particular use at the particular location, a permit for such conditional use may or
may not be granted, with or without conditions, in addition to any condition
specifically stated in this chapter for any particular conditional use, including time
limits, pursuant to the requirement of this chapter. (Ord. No. 1645, § 18.80.660, 8-
15-2005; Ord. No. 1693, § 29(18.80.660), 2-20-2007; Ord. No. 1761, exh.
R(18.80.660), 7-6-2009)
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Following a review of the proposed application materials,
Staff finds that the proposed use can be operated with no
material adverse effects upon abutting properties in the
inclusion of the recommended conditions.
Report P. 14. This conclusion was reached without even talking to the
neighbors.
There is a reason there was no public comment at the time of the report. The
report indicates that the staff review was done on April 27, 2016 and took less than
a day:
The Development Review Committee (DRC) considered j
the Conditional Use Permit (CUP) on April 27, 2016 and
completed the review of the recommendation of
conditional approval on that same date.
Yet, by that time the application had not even been noticed to the public. h
The report indicates at Appendix B (P. 16) that:
The notices was (sic) published in the Bozeman Daily
Chronicle on April 2$th, May 1 St and May 8th, 2016. In
addition notices was posted on site and mailed to
surrounding property owners.
In short, the staff seems to place significance on the fact that there was no
public input by the time it wrote its report; and seemingly reached its conclusion
that there would be no adverse impact on abutting properties before the public
was even noticed on this application.
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The staff report is amusingly patronizing in its display of"alternatives"
available to the Commission. According to the staff, the Commission can either
(1) approve with no recommended condition; (2) approve with modifications to
recommended conditions; (4) open and continue the public hearing with specific 5
direction to staff to supply additional information or to address specific items; or
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(3) deny the application based on the Commission's
findings of non-compliance with the applicable CUP
criteria contained within the staff report;
(Emphasis added).
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No. This Commission can simply deny the application. And it should,
because the application is not consistent with R-1 zoning or the quality of the
neighborhood. And it will adversely affect the neighbors.
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It is particularly inappropriate to confine the City Commission's review to
the "applicable CUP criteria (as) contained within the staff report" because, as
noted, the report does not even address the question of whether the property is
"unique" or the "need" for the permit.
I should also note that the report, in discussing whether the proposed use
will have no material adverse effect upon the abutting property, states that
"Persons objecting to the recommendations of review bodies carry the burden of
proof." Where does that come from? I have not found that provision in the BMC
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nor is such provision appropriate where the staff reached its conclusion without
even talking to the neighbors.
Finally, please do not give a half of a loaf. The question is not whether the
limitation on numbers should be six rather than ten. It's unenforceable anyway. {
Nor is the question whether we can imagine other protective conditions (again, f
which are largely unenforceable). Nor is the issue that Mr. Woods at least seeks to
comply with the law, while others are rogue renters.
Instead, the question is whether this Commission is going to issue a
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precedent-setting permit which starts the slippery slope into severe deterioration of
the neighborhood. After all, if the present permit is granted what will be the basis
for denying short-term rental permits for the house next door and then the house '
next door to that one? In short, R-1 should mean what it says:
The intent of R-1 residential single-household low
density district is to provide for primarily single-
household residential development and related uses
within the city at urban densities, and to provide for such
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community facilities and services as will serve the area's -
residents while respecting the residential character and ;
quality of the area.
We respectfully submit that the permit must be denied. ?
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Sincerely,
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e H. Goetz
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JHG/aa
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