HomeMy WebLinkAbout20096 Staff Report FINAL 3-31-20
Commission Memo
Armory Hotel Modification Appeal by The Etha Hotel, LLC
Appeal number 20096
March 31, 2020
Report To: Mayor and City Commission
From: Marty Matsen, Community Development Director
Subject: Appeal #20096 Filed by The Etha Hotel, LLC Regarding Covering
Portions of the EIFS Condition of Approval
Meeting Date: April 6, 2020
Agenda Type: Action
Project Location: 24 West Mendenhall, Bozeman, MT
CITY COMMISSION ACTION:
At the conclusion of consideration of the appeal, the City Commission may uphold,
amend, or overturn the administrative project decision for Modification to Approved
Site Plan Application 19410. The decision may be overturned or amended upon the
finding that such final administrative decision was erroneous.
Report Date: March 31, 2020
EXECUTIVE SUMMARY:
This appeal seeks to amend the Community Development Director’s decision conditionally
approving Appellant’s application for modification of an approved site plan (decision) by
removing one condition of approval: Phase 2 condition number 5, requiring Applicant to
submit a new plan to cover a portion of the exterior insulation finish system (EIFS) exterior
building materials to comply with section 38.530.060.C.3.a of the Bozeman Municipal Code
(BMC) (2020). The project at issue is a 19,319 square foot hotel commonly referred to as
the Armory Hotel located in the Neighborhood Conservation Overlay District (NCOD) in
downtown Bozeman.
The application for appeal was submitted by:
Cory Lawrence on behalf of The Etha Hotel, LLC, P.O. Box 1795, Bozeman, MT 59771-1795
(Appellant or Applicant).
Appeals of administrative project decisions are governed by 380.250.030 BMC. For a
discussion of the procedures governing this appeal, see below.
Page 2 of 9
According to the appeal application materials submitted, Appellant bases its appeal on
several grounds:
1. That “it is unfair and improper to require [the Applicant] to change what was
approved” under 2015 building plans;
2. “[C]hanging or covering the EIFS, as suggested by the EIFS Condition, would be
dangerous to the public, impractical and very expensive;”
3. “[T]he proposed EIFS Condition would undermine the integrity of existing
construction, thereby ensuring future failure of a construction component that
would otherwise have a life expectancy of many decades,” and;
4. “[T]he scope, style and color of the EIFS is consistent with other neighboring
buildings.”
Only “aggrieved persons” may appeal an administrative decision in accordance with
38.250.030.A, BMC. The City agrees that Appellant qualifies as an “aggrieved person” for
purposes of this appeal.
At the conclusion of consideration of the appeal, the City Commission may uphold, amend,
or overturn the administrative project decision for Modification to Approved Site Plan
Application 19410. The decision may be overturned or amended upon the finding that
such final administrative decision was erroneous.
Consider the Recommended Motion:
Having reviewed and considered Appeal number 20096 of the decision of the Director of
Community Development regarding modifications to the Armory Hotel, the Director’s decision
dated March 4, 2020, the record of review, the presentation of staff and the Appellant, public
comment, and all information presented, I move to uphold the decision of the Director of
Community Development reflected in his March 4, 2020 letter.
Page 3 of 9
Table of Contents
EXECUTIVE SUMMARY: ........................................................................................................................................ 1
TABLE OF CONTENTS: .......................................................................................................................................... 3
BACKGROUND:……………………………………………………………………………………………………….….4
Modification to Approved Site Plan, Application 19410………………………………………….4
Timeline of the Armory Hotel Site Plan Approval and Modification Request…………...4
Staff Evaluation and Director’s Conditional Approval of the Modification……………….5
APPEAL OF THE ADMINISTRATIVE DECISION:…………………………………………………………...6
BASIS OF THE APPEAL:………………………………………………………………………………………………6
APPEAL PUBLIC NOTICE:……………………………………………………………………………………………7
APPEAL PUBLIC COMMENT:……………………………………………………………………………………….7
EVALUATION OF THE APPEAL:…………………………………………………………………………………..7
Authority of the City Commission under the Bozeman Municipal Code…………………..7
City Commission May Act as a Board of Adjustment………………………………………………7
APPEAL PROCEDURE:………………………………………………………………………………………………..8
UNRESOLVED ISSUES:………………………………………………………………………………………………..8
ALTERNATIVES:…………………………………………………………………………………………………………8
FISCAL EFFECT:………………………………………………………………………………………………………….9
ATTACHMENTS:………………………………………………………………………………………………………...9
Page 4 of 9
BACKGROUND:
Modification to Approved Site Plan, Application 19410
The original site plan for the Etha Hotel was approved by the City Commission in 2013,
with the final site plan approval in December 2014 under application Z13064. The
application was for a conditional use permit, certificate of appropriateness and deviations.
A building permit was issued in 2014 based on this approved site plan.
In 2015, Appellant submitted modified building plans to the City Building Department. The
plans were reviewed by a third-party reviewer and, after finding the plans in compliance
with the Building Code, the Building Department stamped the 2015 building plans
“approved for construction.” The Appellant did not submit an application to the City’s
planning division for a modification of the original site plan at that time, and it appears the
2015 building plans were not routed to the Planning Department. Included in the 2015
building plans was a building elevation showing exterior building materials labeled “TAFS”,
a type of EIFS material.
Property owner and Applicant, The Etha Hotel, LLC, submitted an application to the
Community Development Division to modify several aspects of its approved site plan on
September 10, 2019 (Application 19410). At the City’s suggestion, the application was
divided so the requested modifications were addressed in two phases.1 The DRB
recommended approval of the Phase 1 modifications.
The Phase 2 modification requests included changes to the exterior building materials.
Among other changes, Applicant proposed that the exterior siding building materials for
the Tower change to a synthetic insulating finishing system known as TAFS (“EIFS”).
Timeline of the Armory Hotel Site Plan Approval and Modification Request
Final Site Plan approval, Application Z13064 December 8, 2014
Building permit Issued November 21, 2014
Submission of modified building plans to Building Division 2015
Handwritten date on “approved for construction” stamp on revised building plans
August 8, 2015
19410 Modification Application Submitted September 10, 2019
Incomplete Application notice and request for more information October 1, 2019
Modification revision and correction 1 submitted October 9, 2019
Meeting between City and Applicant October 22, 2019
Letter from Director to Applicant regarding deficiencies October 25, 2019
1 A list of the requested modifications included in Phase 1 and Phase 2 are described in the Staff
Memorandum to the DRB dated February 12, 2020, which is attached to this memorandum.
Page 5 of 9
Modification revision and correction 2 submitted October 30, 2019
Inadequacy determination by City November 14, 2019
Modification revision and correction 3 submitted November 26, 2019
Inadequacy determination by City December 19, 2019
Modification revision and correction 4 submitted December 26, 2019
Modification revision and correction 5 submitted January 7, 2019
Adequacy determination by City January 13, 2020
Public comment period February 5 – 27, 2020
Staff memorandum to the Design Review Board February 12, 2020
Design Review Board meeting February 12, 2020
Final staff report prepared for Director March 2, 2020
Director issues decision conditionally approving application March 4, 2020
Appeal period open March 4, 2020
Appeal 20096 submitted by The Etha Hotel, LLC March 17, 2020
Appeal 20099 submitted by 5 West Residential, LLC March 18, 2020
Appeal period closed March 18, 2020
Notice of appeal hearing and public comment period March 19, 2020 to
April 6, 2020
Commission Hearing April 6, 2020
Staff Evaluation and Director’s Conditional Approval of the Modification
As described in the Staff Report to the Director, Staff determined that use of EIFS as an
exterior building material does not comply with applicable standards under both Article 5
of the Unified Development Code (UDC) and the Neighborhood Conservation Overlay
District (NCOD)2 finding the EIFS is not compatible with the character of the Armory, does
not appear similar to those building materials used traditionally in the area, and does not
contribute to the traditional sense of scale of the block. The DRB concurred in Staff’s
analysis and voted to deny the entirety of the proposed modifications in Phase 2, including
use of EIFS.
Section 38.530.060 BMC provides that no more than 25% of a building’s total façade may
be EIFS material. EIFS is intended to be used as a decorative accent to be incorporated
with other permitted materials. To bring the project into compliance with applicable code,
the decision includes the following condition:
Applicant must submit a new plan to cover EIFS exterior building materials so that
no more than 25% of the entire exposed building façade (calculated by combining
the exterior surface area of the Tower and the Armory, including windows) is EIFS,
2 For more information about applicable Article 5 and NCOD standards, see Staff’s February 12, 2020
Memorandum to the DRB, Staff’s March 2, 2020 Staff Report to the Director, and the Director’s Decision Letter
Conditionally Approving the Modifications, all of which are attached to this memorandum.
Page 6 of 9
in compliance with 38.530.060.C.3.a BMC (2020). Some leeway on the strict
percentage limitation will be considered. The Applicant’s plan to cover portions of
the EIFS on the exterior of the building will be subject to a 15 day public comment
period, after which the Director of the Community Development Division must issue
a decision on the new plan to cover exterior EIFS material.
The decision letter suggests that Applicant’s originally approved design, including
perforated brushed metal panels with motifs, would be compatible with the historic
Armory building and satisfy the provisions of 38.530.060, but it does not require reverting
to the originally approved design. Because this requirement can be met in multiple ways,
the condition of approval regarding EIFS leaves it up to the Applicant to propose a plan to
cover the EIFS exterior building materials, subject to the Director’s approval of the plan
after a public comment period.
APPEAL OF THE ADMINISTRATIVE DECISION:
The deadline for submission of an appeal application for the Conditional Approval was
March 18, 2020.
On March 17, 2020, the Community Development Division received an appeal from The
Etha Hotel, LLC, pursuant to Section 38.250.030 BMC, “Administrative project decision
appeals.” Staff reviewed the appeal application materials and found that the application
met all submittal requirements for processing the appeal. The Appellant was notified on
March 18, 2020 that the appeal was complete and that a hearing on the appeal before the
City Commission on April 6, 2020 was scheduled.
BASIS OF THE APPEAL:
By this appeal, Appellant seeks to remove Phase 2 condition of approval number 5 of the
Director’s decision.
As described in the appeal application materials, appellant provides a summary of the
ground for their appeal to remove the EIFS condition:
The scope, style and color of the EIFS is what the City of Bozeman reviewed and
approved in 2015. The Etha respectfully submits that it is unfair and improper to
require it to change what was approved. In addition, changing or covering the EIFS,
as suggested by the EIFS Condition, would be dangerous to the public, impractical
and very expensive. Moreover, the proposed EIFS Condition would undermine the
integrity of existing construction, thereby ensuring future failure of a construction
Page 7 of 9
component that would otherwise have a life expectancy of many decades. Finally,
the scope, style, and color of the EIFS is consistent with other neighboring buildings.
Appellant contends that it received approval from the City of Bozeman Building
Department in 2015 to install EIFS material as depicted on building plans it submitted at
the time. During construction and installation of the EIFS, the City conducted several on-
site building inspections. As noted above, the 2015 building plans were not reviewed by
the Planning Department for compliance with Bozeman’s Unified Development Code
(Chapter 38, BMC). The December 8, 2014 Final Site Plan approval letter specifically states,
“Please be informed that ANY changes from the final plan or final building elevations will
need to be reviewed by the Department of Community Development,” (emphasis in
original).
APPEAL PUBLIC NOTICE:
Notice of the appeal hearing was completed in conformance with 38.220 BMC,
“Applications and Noticing.” Notice was posted on the site, mailed to property owners
within 200 feet, and published in the Bozeman Daily Chronicle on March 22, 2020 and
March 29, 2020. The notice on the project site was posted on March 20, 2020 and will
remain posted until the City Commission hearing on April 6, 2020.
APPEAL PUBLIC COMMENT:
The City has received seven comments from the public at the time of this staff report. Any
further public comment received will be forwarded to the City Clerk’s office for
Commission consideration. Public comment relating to this modification application and
appeal are available at:
http://weblink.bozeman.net/WebLink8/0/fol/204607/Row1.aspx
EVALUATION OF THE APPEAL:
Authority of the City Commission under the Bozeman Municipal Code
The City Commission has the authority to uphold, amend, or overturn the Director’s
decision expressly in section 38.250.030.J BMC.
City Commission May Act as a Board of Adjustment
The City of Bozeman does not have a Board of Adjustment as described in Montana Code
Annotated section 76-2-321. Rather, the City Commission has reserved for itself the
powers of a board of adjustments through Resolution 4419 in 2012. The City Commission
may choose to exercise its powers as a Board of Adjustments3, separate from those
expressly provided under the BMC.
3 Section 76-2-323, Montana Code Annotated provides:
Page 8 of 9
APPEAL PROCEDURE:
The City Commission must comply with the procedures for appeal as set forth in section
38.250.030.I BMC. During the appeal, the Commission will first hear from the
administrative staff who are required to give an “explanation of the application and nature
of the appeal.” Next, the appellants will have an opportunity to present their position.
Here, the appellant is the landowner. Then, the Commission will hear public comment
regarding the appeal from any proponent or opponent. At the close of public comment, the
Commission must consider the merits of the appeal, including considering motions,
discussion, and taking a vote. During the process, no person making a presentation may be
subject to cross-examination. However, Commission members and the City Attorney may
ask questions for the purpose of eliciting information or clarifying information presented.
UNRESOLVED ISSUES: None.
ALTERNATIVES:
The City Commission has the following alternative actions available:
1. Uphold the condition of approval as written in the Director’s Conditional
Approval of Armory Hotel Modification to Approved Plan,
Application 19410.
2. Amend the condition of approval after making findings as to which of the criteria
are met or not met, modify the condition of approval, and approve the amended
Conditional Approval of Armory Hotel Modification to Approved Plan,
Application 19410. Appellant recommends the following motion:
76-2-323. Powers of board of adjustment. (1) The board of adjustment shall have the following powers:
(a) to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or
determination made by an administrative official in the enforcement of this part or of any ordinance adopted
pursuant thereto;
(b) to hear and decide special exceptions to the terms of the ordinance upon which such board is
required to pass under such ordinance;
(c) to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not
be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions
of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed
and substantial justice done.
(2) In exercising the above-mentioned powers, such board may, in conformity with the provisions of
this part, reverse or affirm, wholly or partly, or modify the order, requirement, decision, or determination
appealed from and may make such order, requirement, decision, or determination as ought to be made and to
that end shall have all the powers of the officer from whom the appeal is taken.
Page 9 of 9
Having reviewed and considered the appeal of the decision of the Director of
Community Development dated March 4, 2020 regarding modification of
Application number 19410 (Armory Hotel), Appellants’ March 17, 2020
letter, applicable materials, the presentation of the Appellant, public
comment and all information presented, I move to amend the decision of the
Director of Community Development reflected in his March 4, 2020 letter to
remove the condition regarding EIFS discussed on page 8 as condition 5, but
to otherwise approve the March 4, 2020 decision.
3. Overturn the condition of approval. Find that the Director’s decision was in
error, make alternative findings, and deny the Applicant’s modification request
regarding use of EIFS as exterior building material in its Armory Hotel
Modification to Approved Plan, Application 19410.
FISCAL EFFECT: Costs of potential litigation for further appeals. An estimate of those costs
is not possible at this time.
ATTACHMENTS:
20096 Appeal filed by The Etha, LLC – submission materials and communications
19410 Director’s Decision Letter Conditionally Approving the Armory Hotel
Modification to Approved Plan
March 2, 2020 Staff Report for Application 19410
19410 Design Review Board Minutes – February 12, 2020. AV Capture Link:
https://www.bozeman.net/services/city-tv-and-streaming-audio
Bozeman Municipal Code Sections
February 12, 2020 Staff Memorandum to Design Review Board
(see http://weblink.bozeman.net/WebLink8/0/fol/206300/Row1.aspx for attachments to
Staff Memorandum)
Full application and file record: available to view by contacting the Community
Development Division, 20 E. Olive, Bozeman, MT 59715. Please contact Brian Krueger at
bkrueger@bozeman.net or 406-582-2259 to make arrangements to view the file.