HomeMy WebLinkAbout01-05-22 Appeal of Conditional Approval of North Central Master Site Plan and CCOA - Application 21029 & The Ives, Application 21165 KASTING, KAUFFMAN & MERSEN,P.c.
A T T O R N E Y S A T L A W
JOHN M.KAUFFMAN 7I6 SOUTH 2Oth AVENUE,SUITE I0I
JANE MERSEN BOZEMAN,MONTANA 597I8
DENNIS L.MUNSON TEL:(406)586-4383 FAX:(406)587-787I
LILIA N.TYRRELL E-MAIL:reception@kkmlaw.net
JORDAN P.HELVIE
KENT M.KASTING,Ofcowuel
January 5, 2022
Mike Maas, City Clerk
City of Bozeman BY HAND-DELIVERY
121 N. Rouse, Suite 201
Bozeman, MT 59715
Re: Appeal of Conditional Approval of North Central Mster site Plan and
CCOA- Application No. 21029 & The Ives Application No 21165
Dear Mr. Maas:
Our office, along with Brian Gallik and his office, represent the parties
identified on Exhibit A for purposes of appealing the City of Bozeman's December
20, 2021 decision (the "Staff Report") to conditionally approve North Central Master
Site Plan & CCOA, Application No. 21029 (the "Master Plan"), which includes The
Ives, Application No. 21165. The proposed Master Plan is a single developer's vision
to substantially change the fundamental character of Bozeman, as reflected in its
deceptively foreshortened rendering, reproduced below.
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The foregoing rendering (Figure 7 of the Staff Report) inaccurately depicts the
Master Plan's proposed development in the foreground as being substantially similar
to development that appears to be nearly adjacent to the east. One need only walk
or drive through the existing neighborhoods that surround the proposed Master Plan
area to know that what has been proposed would substantially and irrevocably
change the character of Bozeman. The parties are within the Neighborhood
Conservation Overlay District ("NCOD") and the proposed development converts
what has been, to date, a dynamic, unique and central part of Bozeman into one
developer's plan to create a Bozeman in its own image.
The proposed Master Plan represents a significant departure from the City's
intent and purpose of creating the NCOD. See e.g. Bozeman Municipal Code ("BMC")
§38.340.010(D) ("In view of the fact that most of the area included within the
boundaries of the conservation district was developed and built out prior to the
adoption of zoning and contemporary subdivision regulations, the construction,
development pattern and range of uses is highly diverse and may not be in compliance
with conventional regulatory requirements. This part 1 recognizes that this diversity
is a contributing element of the historic character of these neighborhoods or areas.
The provisions of this part 1 must be applied in a manner that will encourage the
protection and enhancement of the many diverse features for future generations")
For the reasons already articulated by the public in opposition to the Master ;I
Plan, the appellants oppose and appeal the Staff Report. One developer/development
should not be permitted to alter the look, feel and function of Bozeman through a
master plan of this magnitude. Rather, the Master Plan should be denied, and the
conditional approval in the Staff Report reversed so that buildings will be reviewed
individually, rather than as a "condition" of approval of the overall Master Plan.'
I. COMPLIANCE WITH BMC §38.250 030
This appeal is made pursuant to BMC §38.250.030. The project that is the
subject of the appeal is known as the North Central Master Site Plan and
Commercial Certificate of Appropriateness (the "Master Plan"). The project
involves the following legally described properties: Tracy's 31d Add. 507, T02, S,
R06 E, Block B, Lot A, Plat J-198; Beall's 3rd Add, 507, T02, S, R06 E, Block 3, Lot
1-24, Acres 2.963 & Blk 4 Lots 1-10 & 8.5' Tract Adj East Side Plat C-44-A; and
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Appellants note that the Staff Report includes a"condition",Condition No.2, in which each"phase"of the
master site plan will be evaluated at the time of development. However, if the entirety of the Master Plan is
approved now,the City of Bozeman has already surrendered to the developer's vision of what Bozeman should look
like and individual projects will be,for the most part,pre-approved. l
January 5, 2022
Page 3
Tracy's 31d Add., S07, T02, S, R06 E, Block A, Lot 2-3, Acres 1.09063, Amnd Plat C-
18-1).
The names and addresses of the Appellants are attached as Exhibit A. As
reflected on Exhibit A, they live and/or own homes or properties or operate businesses
near the site of the proposed Master Plan. They are aggrieved parties pursuant to
BMC §38.250.030 and, therefore, have standing to pursue this appeal and bring it to
a public hearing before the City Commission for review. The proposed Master Plan
adversely impacts their quality of life, businesses, property values; it impacts their
access to adequate light and air, increases congestion and noise from more traffic and
further exacerbates the parking issues in the downtown core area because of
inadequate parking. The Lees, for example, own a 131 year old historic home that
is immediately east of the proposed development and is one of two properties
anchoring the southern end of the City's North Tracy Avenue Historic District.2 The
Appellants thus have specific, personal, and legal interests in the final decision, as
distinguished from a general interest such as is the concern of all members of the
community because they are located near the proposed development discussed in the
Master Plan and are directly affected by the change to proposed, including viewsheds,
parking, traffic and neighborhoods.
While BMC §38.250.030 purports to limit appeals to a specific issues raised
during the public comment period, we respectfully submit this section may be read so
narrowly as to limit any person who participated in the process (individually or
through representation) to the exact issues raised in their letters/comments. This is
particularly true as the Staff Report was issued following submission of public
comment, to which a right to respond and comment on fundamental flaws in the
Staffs analysis, before the City Commission is -properly permitted, and a
fundamental component of due process, as the recommendation of approval is
properly the subject of rigorous debate and review on appeal. The right to pursue
grievances with the City's decisions have been broadly construed by the Montana
Supreme Court. See e.g. Heffernan v. Missoula City Council, 2011 MT 91,¶¶ 30-46,
360 Mont. 207, 255 P.3d 80.
Further, as the Supreme Court of Washington stated, in the analogous context
of public hearings concerning zoning decisions, "[i]t is axiomatic that, whenever the
law requires a hearing of any sort as a condition to the power to proceed, it means a
fair hearing, in appearance as well. A public hearing, if the public is entitled by law
to participate, mean then a fair and impartial hearing.... Where the law expressly
z It is one of two"primary properties"anchoring the Historic District as described in the nomination accepted by
The Keeper of the National Register of Historic Places,a National Park Service official responsible for deciding on
eligibility of historic properties for inclusion on the United States National Register of Historic Places.
January 5, 2022
Page 4
gives the public a right to be heard . . . the public hearing must, to be valid, meet the
test of fundamental fairness, for the right to be heard imports a reasonable
expectation of being heeded. Just a hearing fair in appearance but unfair in
substance is no fair hearing, so neither is a hearing fair in substance but appearing
to be unfair." Smith v. Skagit County, 453 P.2d 832 (WA 1969) (holding modified on
other-grounds by State v. Post, 826 P.2d 172 (WA 1992).
While this letter speaks to some of the issues raised by the Appellants, they
reserve the right to comment upon or address all issues appealed by any other party
or any issues raised by City of Bozeman(the"City"), the Applicant or any other person
or members of the public offering comments at the hearing on this matter. It is
directed to the Staff Report, which has not yet been the subject of public review or
comment.
In accordance with the other appellate requirements, the names and addresses
and accompanying envelopes of property owners within 200 feet of the property
(Exhibit B) and the required appeal fee are included with this appeal.
II. THE MASTER PLAN FUNDAMENTALLY CHANGES BOZEMAN
A. Intent and Purpose of NCOD
In reviewing this appeal and evaluating the public comment at the future
hearing on this matter, it is important for this Commission to remember the
overarching intent and purposes of the development code that applies to the property
at issue, which is within the NCOD. These include the balancing of rights and
responsibilities of all stakeholders, including the general public, to prevent the
overcrowding of land, to lessen congestion in the streets and provide for adequate
light and air. As stated in the BMC for the NCOD:
A. The intent of this unified development chapter is to protect the public
health, safety and general welfare; to recognize and balance the
various rights and responsibilities relating to land ownership use
and development identified in the United States and State of
Montana constitutions, and statutory and common law; to
implement the city's adopted growth policy; and to meet the
requirements of state law."
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B. It is the purpose of these regulations to promote the public health,
safety and general welfare by: preventing the creation of private or
public nuisances caused by noncompliance with the standards and
January 5, 2022
Page 5
procedures of this chapter; regulating the subdivision, development
and use of land; preventing the overcrowding of land; lessening
congestion in the streets and highways; being in accord with the
growth policyproviding adequate light, air, water supply, sewage
disposal, parks and recreation areas, ingress and egress, and other
public improvements; requiring development in harmony with the
natural environment; promoting preservation of open space;
promoting development approaches that minimize costs to local
citizens and that promote the effective and efficient provision of
public services; securing safety from fire, panic, and other dangers;
protecting the rights of property owners'; requiring uniform
monumentation of land subdivisions and transferring interests in
real property by reference to a plat or certificate of survey (MCA 76-
3-102).
BMC §38.100.040 (A) and (B) (emphasis added). It is further the purpose of these
same regulations to seriously consider the character of the district and its peculiar
suitability for particular uses, conserving the value of buildings, and encouraging the
most appropriate use of land throughout the jurisdictional area (MCA 76-2-304). The
Bozeman Guidelines for Historic Pr•eser•vation & The Neighborhood Conservation
Overlay District supplement these standards, but appear to receive, at best, minimal
attention in the Application and recommendation for approval.
B. The Master Site Plan Consists of Inappropriate Mass and Scale
and Its Abrupt "Transition" Is Contrary to the Spirt and Intent of
the Community Plan and UDC
The proposed North Central Master Site Plan ("Master Plan") spans several
city blocks, with The Ives project directly bordering a historic neighborhood of single-
family homes. The location of such a tall building near single and double-story
residential neighborhoods, as well as the other tall buildings proposed in the Master
Plan, are incompatible with the adjacent neighborhoods and violates the spirit and
intent of the Bozeman Community Growth Plan, as the overwhelming majority of
public comment makes clear.
The Bozeman Community Growth Plan's relevant goals include
Goal N-1: Promote housing diversity, including missing middle housing.
Goal N-4: Continue to encourage Bozeman's sense of place.
N-4.1: Continue to recognize and honor the unique history,
neighborhoods, neighborhood character, and buildings that contribute
to Bozeman's sense of place through programs and policy led by both
City and community efforts.
January 5, 2022
Page 6
The proposed Master Plan, which includes The Ives, does not align with these
fundamental goals and objectives—which are the foundation of the Community Plan.
A six-story, massive high-rise does not fit into the category of "missing middle
housing" and is in stark contrast with the existing neighborhoods.
Moreover, the proposed Master Plan does not encourage a sense of place. It
does not comply with BMC §38.320.100. The huge buildings will tower over the
already established neighborhood and are incompatible with the neighborhood
character and destroys any sense of place. The obvious abrupt transition from the
existing neighborhood is given passing mention as a concern in the Staff Report for
The Ives development on page 19: "The Ives building would appear to tower over the
smaller one- and two-story older homes to the north and west." The City of Bozeman
thus admits the transition would not be congruent with the current character of the
neighborhood, despite technically meeting code requirements. In an exercise that
makes "two wrongs a right", the Staff Report discusses how The Ives will serve as a
transition area to the rest of the massive development. The predicate, or domino
theory of development, is that the Ives destroys the complexion of the neighborhood
then argues, that since it is already ruined, it will serve as the transition. This does
not address the inadequate transition between The Ives and the current
neighborhoods in the first instance, which are primarily single-family homes. These
fundamental problems exist with the entire Master Plan. In this way, the Master
Plan creates the problem then seeks to capitalize on it.
On page 18, ¶1, the Staff Report discusses the Community Growth Plan,
stating: "Future development should be intense while providing areas of transition
to adjacent neighborhoods and preserving the character of the Main Street Historic
District through context sensitive development." It goes on to opine that the Master
Plan meets density goals but makes no mention of any attempt to preserve the
character of the neighborhood, or how the development is context sensitive — goals
which are of critical importance in the Community Plan. In this way, the Staff Report
improperly elevates density for largely high-end housing over (and at the expense of)
the existing neighborhoods. However, the existing neighborhoods are responsible for
making this area of Bozeman uniquely Bozeman and a desirable place to live and
raise families.
Page 29, No. 10, of the Staff Report discusses the issue of compatibility with
the existing environment, since it was a subject of substantial public comment. Public
comment overwhelmingly objected to this project. The Staff Report argues that the
development follows the Bozeman Municipal Code but fails to address the fact that
this project fails to comply with the fundamental goals and objectives of the
Community Plan and UDC, as summarized above. The proposed buildings do not
honor the "sense of place" and the "Bozeman feel' which is a central part of the
Growth Policy. Rather, the proposed Master Plan reflects generic high density,
January 5, 2022
Page 7
disproportional buildings that largely resemble other buildings built by this same
developer and are not designed to promote or preserve the Bozeman neighborhoods
they will inevitably unravel. Walking by a building that is 6-stories high does not
assist in feeling safe or welcoming. It diminishes light and air on adjacent properties.
As such, the project violates the Bozeman Community Growth Plan, is inconsistent
with many of the goals and policies articulated in the City's code and prioritizes the
desires of the developer over long-time homeowners in the area.
Like the argument with The Ives, once the Master Plan is approved, then why
not incrementally replace the rest of the surrounding single-family neighborhoods
with multistory buildings — the "transition" exists?
C. The Master Plan Does Not Comply with the NCOD
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The Bozeman Guidelines for Histozic Preservation & The Neighborhood
Conservation Ovezlay District document was adopted by the City in 2006 and
amended in 2015 (Winter & Company 2006). The stated purpose of the NCOD in the
City of Bozeman's Unified Development Ordinance (UDO) is to "stimulate the
restoration and rehabilitation of structures and all other elements contributing to the
character and fabric of established residential neighborhoods and commercial or
industrial areas" (Winter & Company 2006:9)3 The NCOD was created by the City
to "...protect Bozeman against alteration and demolition that might damage the
unique fabric created by the hundreds of important buildings and sites that make up
the historic core of Bozeman" (Winter & Company 2006:9; emphasis added). The
approval of a Master Plan with nine (9), 6-story (70-ft-tall) buildings on the inside
corner of the only residential historic district on Bozeman's north side, does not
protect, but rather undermines, Bozeman's unique historic fabric.
For the North Tracy Avenue Historic District, specifically, the design
guidelines state that construction "within and around the district" (emphasis added)
should reflect the district character. Defined characteristics of the North Tracy
Avenue Historic District include a residential neighborhood setting, similar front
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yard setbacks, simple one-story wood frame residential buildings, and porches that
address the street. The proposed North Central Master Plan does not include any of j
those design characteristics.
The North Tracy Avenue Historic District is one of 10 historic districts in
Bozeman, and the only residential district north of Main St. It was listed on the
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National Register of Historic Places ("NRHP") on October 23, 1987. A copy of the
nomination form is available on the City of Bozeman's Historic Preservation webpage
3 See also City ofBozeman Final NCOD Policy Direction. Prepared for the City of Bozeman.
Prepared by BendonAdams,Aspen, Colorado and Orion Planning&Design(2019) at 23
(`BendonAdams"). Available online at https://www.bozeman.net/home/showptibhsheddocument/
9359/637413147404900000
January 5, 2022
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(www.bozeman.net/government/historic-preservation/historic-districts). The district
consists of 29 residences in a two-block area along N. Tracy Ave. between Beall St.
and Peach St., and its period of significance is defined as 1890-1930. The NRHP
nomination form provides the following summary of the district:
The North Tracy Avenue Historic District, which contains a cross-
section of houses ranging from the elaborate Damerall House, 319 [sic]
N. Tracy, and Harrison House, 322 N. Tracy, to the very modest Perkins
House, 416 N. Tracy, is an important remnant of Bozeman's historic
development. No other group of residences north of Main Street,
historically the working class area of the city, remains intact as a
cohesive architectural entity, recalling by their present appearance the
later 19th and early 20th centuries.
The North Tracy Avenue Historic District has been found to meet the rigorous
requirements of listing and is therefore nationally acknowledged as a designated
historic district. Recognizing the significant and uniqueness of the neighborhood, the
City has erected street signs along North Tracy Ave. that identify the district at each
end and placed a plaque describing the historic significance of the district on the
southeast corner of Tracy Ave. and Villard St.
The proposed Master Plan threatens the historic integrity and overall National
Register eligibility status of the North Tracy Historic District by adversely affecting
its aspects of setting and feeling. As defined in the National Park Service's Bulletin
15, How to Apply the National Register Criteria for Evaluation, setting refers to the
character of the place where the historic resource is located, including view sheds,
and feeling is a"property's expression of the aesthetic or historic sense of a particular
period of time" (National Park Service 1997:45). Both the setting and the feeling of
the district will be negatively and irrevocably impacted by the construction of nine
(9), 6-story (70-ft-tall), square-sided and flat-roofed buildings immediately across the
street from the modest, 1- and 1% story, hipped-roof, predominantly single-family
residences that characterize the district.
There is no stipulated transition in mass or scale from the proposed
development to the long-tenured, extant architecture of the NRHP-listed historic
district celebrated by the City. Transitional awareness to minimize degradation of
historical properties is already in the City's code. See e.g. BMC §38.340.070. The
intent of BMC §38.340.070 is to (1) maintain historical appropriateness, and (2) have
minimal adverse effects on abutting properties. The structures contemplated by the
Master Plan are at minimum four (4) times the size of the largest surrounding
structures in the neighborhood. As a ratio, that is 1.5 to 6.
The Staff Report does not adequately or properly consider the purpose of the
NCOD and the design guidelines for projects near historic districts. The approval of
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January 5, 2022
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the master plan ignores consideration of the adopted policy directives for infill
transitions at the B-3/R-2 boundary. The proposed project is not consistent with
design guidelines for development around the North Tracy Historic District and it
threatens the district's continued listing on the National Register of Historic Places
by placing the district's historically significant anchors—modest historic homes—in
the shadow of nine, 6-story buildings.
The condition created in the Staff Report that individual buildings will be
considered on a case-by-case basis ignores the damages already done if the Master
Plan were approved. An approved Master Plan creates the slipstream, or domino,
behind which each building will demand refuge.
D. The Variance Request Threatens Safety
The Applicant requested a variance/deviation regarding the driveway access
from West Villard Street. Staff Report at 21. Montana law "clearly establishes that
the following conditions must be present before the granting of a variance is proper:
(1) The variance must not be contrary to the public interest; (2) a literal enforcement
of the zoning ordinance must result in unnecessary hardship owing to conditions
unique to the property; and (3) the spirit of the ordinance must be observed and
substantial justice done." Carlson v. Yellowstone Cty. Bd. of Adjustment, 2017 MT
186, ¶ 17, 388 Mont. 232, 236, 399 P.3d 322.
The development code, grounded in public health, safety and welfare, states
the driveway must be a minimum of 40-feet from the intersection with the abutting
alley per BMC §38.400.090.1. This code helps ensure the safety of vehicular traffic
near an existing neighborhood, which will see substantially increased traffic if this
Master Plan is approved.
The Staff Report does not provide any meaningful analysis as to the propriety
of a variance here. Rather, allowing the variance appears to sacrifice public safety at
the altar of unnecessary density for primarily high-priced apartments. There is
nothing unique to the property at issue that results in unnecessary hardship and the
Staff Report does not appear to address this fundamental requirement. The variance
should not be granted, as it fails to meet the standards applicable to such an
application and there are no facts that outweigh the public safety at issue.
D. Cash-in-lieu for Parkland Further Destroys the Existing
Neighborhoods.
Another serious issue is the Staff Report's decision on cash in lieu of parkland
and furthers the urbanization of Bozeman in the image of so many other
unremarkable towns and contrary to what made this area of Bozeman special.
Parkland development requirements exist to ensure a high quality of life for the
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January 5, 2022
Page 10
residents of the existing neighborhoods. Approving a cash-in-lieu substitute denies
the neighborhoods the substantial benefits of having additional parkland to utilize,
resulting in a community which is less safe and healthy. It is evident, through the
reading of many public comments, that the neighbors that surround the proposed
Master Plan area oppose cash-in-lieu for the parkland requirement for good reason.
Dropping this massive project in the middle of existing neighborhoods, without any
corresponding benefit, or open space, which is vital to a healthy, and prosperous
neighborhood and with the many new residents who will live in this high-priced
apartments, will simply put further pressure on the limited existing parks in the area
and diminish, not enhance, the quality of life for all residents in the area.
III. THE SERIOUS PARKING ISSUE
The Master Plan also represents a further and unwarranted degradation of the
City's already inadequate and problematic parking situation. See Downtown
Bozeman Parking Study by Walker Consultants for the City of Bozeman updated
September 30, 2021 and referenced in the November 9, 2021 staff memo. For the
reasons below and already in the record, the proposed Master Plan does not satisfy
BMC §38.23.100(6)(a)(1) because it does not provide sufficient parking and will
adversely impact anticipated traffic and parking conditions. BMC
§38.23.100(6)(a)(1). It also exposes the "bait and switch" game employed by the
developer behind the Master Plan and other developments in Bozeman's downtown
—Homebase Partners/Andy Holloran (the "Developer").
A. The Developer's Shell Game
In 2019, the Developer of the Master Plan was developing the AC Hotel in
downtown Bozeman, but the Developer refused to provide any new parking the new
employees, guests and service people that would using the 143 guest-room hotel. It
was discovered that the Developer was trying to circumvent the UDC parking
requirements by suggesting it could convert temporary parking space leases it was
hoarding in the downtown garage into permanent UDC spaces to meet AC Hotel's
parking requirements. It would, thereby, avoid having to spend significant funds to
actually create the necessary and required parking for the hotel and depleted a public
resource for individual gain. The Bozeman Parking Commission effectively
prevented the Developer from exploiting the public resource as a means of evading
the UDC parking requirement.
The Developer, using new entities, purchased the land that is now part of the
proposed Master Plan, including the parking lot opposite the opposite the Medical
Arts Building, now slated as the future site of"The Ives" project. It then dedicated
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January 5, 2022
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80 parking spaces in that lot to satisfy the 80 parking spaces required to meet the
parking requirements for the AC Hotel. It appears that this solution also allowed the
Developer to avoid paying the City approximately $2 million in parking cash-in-lieu
fees (80 spaces x $25k/space), while further burdening the City's downtown parking
problem. Hotel guests would not likely use the parking lot blocks away, but rather
use the on-street parking or the parking garage. In this way, the proposed solution
would create the very problem the City's parking requirements were designed to
prevent. Nevertheless, the City permitted this substitution, as long as the Developer
provided a dedication that the City deemed appropriate.
The Developer and City agreed upon a Dedication on February 20, 2020, a copy
of which is attached as Exhibit C (the "Dedication") It appears the Developer has an
ownership interest in and/or manages both the "Grantor" and"Grantee" identified in
the Dedication. In short, he controls both sides.
The Dedication states on page one that its purpose is to use the "Owner's
Property" (aka, proposed location of The Ives") "to meet the parking requirements of
the City for application 19078 [aka, AC Hotel]". Exhibit C, ¶1. The owner of the
property "granted" the AC Hotel an "irrevocable easement, right and license for the
exclusive use of 80 parking spaces on [the property]." Id., 12 (emphasis added). The
parties knew that the dedication was "perpetual" and would "run with the land" and
would bind "heirs, successors and assigns." Id., 13. Despite the use of the words
"irrevocable" and "perpetual", the Declaration allows it to be modified or terminated,
but only if the City's Director of Community Development agrees. Id., 13. In this
way, the City could ostensibly hold the Developer to its word as the Developer already
controlled both sides of the irrevocable perpetual easement.
It would be naive to believe the Developer did not know it was going to develop
the parking lot into something other than a parking lot at the time it signed the
irrevocable perpetual easement. It does not appear from the Dedication or any
records reviewed thus far, that the City was advised of the Developer's plans when it
was reviewing and asked to sign the Dedication. Rather, it appears the City was
played in 2019.
When the Developer used the Dedication to address the increase in parking
pressure it was creating, it led the City into believing it was satisfying the long term
UDC parking requirements imposed by the City's regulations. Shortly after signing
the Dedication, the Developer came forward with "The Ives" project which involved a
building on top of the very parking spaces dedicated to the AC Hotel. This troubling
tactic was raised with the City in our October 11, 2021 letter to the City Planning
January 5, 2022
Page 12
Office and Design Review Board in relating to The Ives Application No. 21165,
incorporated herein by reference.
Once exposed, the Developer responded to the City by suggesting a virtual
"musical chairs" for addressing the promised parking requirements for the AC Hotel.
The Staff Report appears to condone this "musical chairs" approach to the parking
promised the City, but it should not. Such a game with parking was not
contemplated by the City, or its residents, when the City demanded the Dedication.
The Developer's mercenary and predatory development tactics expose a sophisticated
actor who views the City's regulations as isolated obstacles to be gamed and
downtown parking is but one victim. Such tactics come at the expense of the City,
the neighbors and neighborhoods, and the City's own requirements. The parking
"work arounds" do not satisfy BMC §38.23.100(6)(a)(1).
B. Deceptive Noticing
As part of the Master Plan application process, notice was to be provided to the
public, including certain neighbors. The notice provided included part of the
Developer's Development Review Application in which the Developer represented
that there would be "541" parking spaces (the "Public Notice"). Exhibit D at 2. The
page of the Notice on which the "541" figure appears is part of the document prepared
by the Developer and signed by Holloran. Exhibit E. At the top of the Notice, the
City represents that Master Plan will involve 493 dwelling units, 26,397 square feet
of retail, 11,000 square feet of restaurant, 45,300 square feet of office, 100 hotel
rooms, and 646 off-street parking spaces. There is no explanation why there is a
difference of 105 parking spaces in the Notice itself. This deceptive and/or confusing
noticing did not properly advise of what new parking would actually be created.
C. Phantom Parking Spaces/Concepts
Some of the parking issues are addressed on page 22 of the Master Plan Staff
Report in the form of a table. The table indicates that under the BMC, 630 parking
spaces are required and the Master Plan proposes 646. The 541 parking spaces the
Developer represented it was providing in the document it signed (Exhibit C) is not
mentioned here.
Of the 646 parking spaces that are claimed in the Staff Report"to be provided",
140 parking spaces do not actually exist. These are fictitious "SID" parking spaces
attached to the"Mountain View East/West: sites, 84 and 56 respectively. Staff Report
at 22. Whether or not the Developer can appropriately use these 140 spaces to meet
the requirements, the City must appreciate that 140 of the 646 (over 20%) alleged
January 5, 2022
Page 13
parking spaces will never exist for anyone to use. This reality will unfairly and
unreasonably push traffic and parking into the surrounding neighborhoods, further
burden a failing parking situation and, therefore, runs contrary to BMC §38.23.100.
Consistent with the foregoing, when reading the parking document the
developer submitted—it appears that for each building, it was able to claim a parking
waiver for the first 3000 sq. ft. of commercial space. By splitting those spaces into
three (3) buildings, the Developer managed to claim that waiver three (3) times.
Permitting 9000 sq. ft. of commercial space to be built with no new parking spaces
would create an untenable real-world problem that the Commission cannot and
should not ignore.
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The evidence also does not support the ability for the development to claim
parking requirement reductions based on proximity to the parking garage. It appears
the Developer and Staff Report afforded a credit of 50 parking spaces due to this
claimed proximity. Yet, the City knows the garage is at or near capacity and already
prevented the Developer from using space in the garage when it tried in connection
with the AC Hotel in 2019. It makes no sense to allow the type of intense development
proposed by the Master Plan and, at the same time, pretend there are 50 parking
spaces available in the City's garage to accommodate that new development.
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The dramatic increase in demand on parking that will be created is reality. Using
phantom or fictitious parking to solve such a demand is simply wrong.
IV. CONCLUSION
The Master Plan should be denied, and the Staff Report reversed. It is the City
Commissioners who have been elected by all Bozeman residents to protect all of their
interests. Bozeman's neighborhoods in the downtown area display the uniqueness
that gives Bozeman its singular character. The Master Plan will smother that
singularity under massive new buildings that offer no character, but rather embody
generic, bland formulaic development that could be found anywhere. While II
eliminating that which makes the area uniquely vibrant, the Master Plan
exacerbates the existing parking problems. When viewed as a whole proposed Master
Plan runs counter to the intent and purpose of the NCOD and the stated goals for
I
appropriate development in the City as reflected in its code and plans.
iI
Sincerely,
Z
eJZnM<a ffman Brian K. Gallik
l
I�
I
January 5, 2022
Page 14
Encl.
C: City Attorney
Bozeman Planning Office
EXHIBIT A
APPELLANTS
(IN ALPHABETICAL ORDER)
NAME PROPERTY OWNED
27 N Tracy, LLC 27 N. Tracy
P.O. Box 1795 Bozeman, MT 59715
Bozeman, MT 59771
BCA RE, LLC, 118 E. Main Street
118 E. Main Street Bozeman, MT 59715
Bozeman, MT 59715
Etxea Hospitality, LLC 24 W. Mendenhall St.
P.O. Box 1 795 Bozeman MT 59715
Bozeman MT 59771
Five' s The Most, LLC 23 W. Main
P.O. Box 642 25 W. Main
Bozeman, MT 59715 Bozeman, MT 59715
Suzanne Held and Mike Herringer 313 North Grand
313 North Grand Bozeman, MT 59715
Bozeman, MT 59715
i
Jack and Jane Jelinski 433 North Tracy
433 North Tracy Bozeman, MT 59715
Bozeman, MT 59715
Craig and Jennifer Borresen Lee 322 N. Tracy Ave.
322 N. Tracy Ave. Bozeman, MT 59715
Bozeman, MT 59715
Off the Beaten Path LLC business operates in
7 E Beall Street, Suite 200 rented space with
Bozeman, MT 59715 limited parking
The Ridge Center, LLC 7 East Beall St.
P.O. Box 1795 Bozeman, MT 59715
Bozeman MT 59771
1 �
APPELLANTS
(CONTINUED)
NAME PROPERTY OWNED
Rocking R Bar, Inc. (Mike Hope) 211 E. Main Street
211 E. Main Street Bozeman, MT 59715
Bozeman, MT 59715
2
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After recording return to:
Bozeman City Clerk
PO Box 1230
Bozeman MT 59771
2674195
Page: 1 0( 5 02/27/2020 09:03:28 RM Fee: $35.00
Hrlc Semerad - Gallatin Cpunty MT MISC
11111111111111 III 111111111111111111111111111111 IIIII IIIII illllll III IIIII IIIII IIII IIII
OFF-SITE PARKING SPACE LICENSE AGREEMENT
nn//�
This License Agreement is made this'C.D day of , , 20ggby and
between Medical Arts Building Partners LLC located at 300 N. VAllson Avenue,
Bozeman, MT 59715 hereby referred to as"Owner"or"Grantor,"and Straightaway
Bozeman Investors, LLC located at 20 N. Tracy Avenue,Bozeman, MT 59715 hereby
referred to as"SBI"or"Grantee"and with consent of the City of Bozeman,PO Box
1230, Bozeman MT 59771 ("City")to meet parking requirements of the City.
For valuable consideration,the receipt of which is hereby acknowledged,the Owner and
SBI, agree as follows:
1. Medical Arts Building, LLC is the owner of Lots 1,2, 3, 4, 5, 6, 7, 8, 9 and 10 in
Block 4 of Beall's Third Addition to Bozeman,Montana together with a strip of
land 8 1/feet in width lying East of and adjoining said Lots 1-10 inclusive,
vacated for street purposes by Ordinance No. 699 of the City of Bozeman,which
ordinance was recorded May 11, 1946 in Book 13 of Miscellaneous, page 123
records of Gallatin County, Montana,all according to the official plat thereof,on
file and of record in the office of the County Clerk and Recorder, Gallatin County,
Montana, hereby referred to as"Owner's Property"
and whereas, Straightaway Bozeman Investors,LLC is the owner of said property
whose legal description is described on Exhibit A attached, hereby referred to as 5
E. Mendenhall Street,Bozeman, MT 59715 according to the plat thereof, on file
and of record in the office of the.Clerk and Recorder, Gallatin County,Montana;
and it is SBI's desire to use Owner's Property to meet the parking requirements of
the City for application 19078 (the"Project").
Page 1 of 5
2674195 Page 2 of 5 02/27/2020 09:03:28 AM
2. Owner grants to Grantee for its benefit and that of its successors and assigns an
irrevocable easement,right and license for the exclusive use of 80 parking spaces
on Owner's Property("Licensed Parking Spaces")for the purpose of meeting the
parking requirements of the Project("License"). The City consents to the License
granted herein provided the 80 parking spaces so licensed meet all applicable
requirements of the Bozeman Municipal Code, Chapter 38 for the Project during
the term of the License.
3. All parties recognize the significant legal implications of this License Agreement
and have consulted legal counsel prior to signing.This License Agreement shall
be perpetual, shall run with the land, and shall be binding upon the heirs,
successors and assigns of the Owner and SBI hereto and must be recorded in the
records of the Gallatin County Clerk and Recorder. This License Agreement may
be terminated or modified and the License granted herein revoked only by prior
written consent of the Grantee and the City's Director of Community
Development("Director") by a document filed in the records of the Gallatin
County Clerk and Recorder.
4. The City reserves the right to require Grantee to provide parking spaces at a
different location(s) to meet the parking requirements of the Project if at any time
the Director determines, in his sole discretion,the Licensed Parking Spaces do not
meet the applicable site plan criteria or other applicable requirements of the
Bozeman Municipal Code(BMC)for the Project. Failure to do so will constitute
noncompliance with the site plan approval for the Project.
In such a case, Grantee agrees it will, within six(6)months of the date of the
Director's determination that all or a portion of the Licensed Parking Spaces no
longer meet the applicable site plan criteria or other applicable requirements of
the BMC, provide alternative parking spaces to the satisfaction of the Director or
pay cash-in-lieu of parking(as provided for in 38.540.050,BMC)at the amount
set by the City at the time of the Director's determination the Licensed Parking
Spaces no longer meet the applicable site plan criteria or other applicable
requirements of the BMC.
5. Each person signing this License Agreement represents and warrants that he is
fully authorized to execute this License Agreement on behalf of the entity on
whose behalf such individual has signed this License Agreement, and that by
signing this License Agreement such entity will be bound by the terms contained
herein.
END OF DOCUMENT EXCEPT FOR SIGNATURES
Page 2 of 5
2674195 Page 3 of 5 02/27/2020 09:03:28 AM
OWNER/GRANTOR
Medical Arts Building Partners LLC
'��Y, x k
by Bert A. Getz
Authorized Signatory
STATE OF MONTANA )
)ss.
County of Gallatin )
On this day of rr,--6r 20 2kpbefore me,the undersigned, a
Notary Public for the State of Mon a,personally appeared , ,and
the person who name is subscribed to the within,instrument, and acknowledged to me
that they executed the same for and on behalf of Medical Arts Building Partners LLC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal the
day a&ear first above written.
LAUREN J CUMMINGS
Publ fo the State of Mon a 'Q```�' M�'��'" Notary Public
S•'NOTARIq�2N�_#or the State of Montana
Printed Name:
�.SEAL. *` Residing at;
;cr �; Bozeman, Montana
Residing in � a� �?
My Commission Expires:
My Commission expire
n „M " September 04,2023
Page 3 of 5
2674195 Page 4 of 5 02/27/2020 09:03:28 AM
LICENSEE /GRANTEE
Straightaway Bozeman Investors, LLC
by Andy Holloran
Authorized Signatory
STATE OF MONTANA )
)ss.
County of Gallatin )
On thi-06�day of r:�n 2UC) before me,the unde signed, a
Notary Public for the State of Mon a,personally appeared S n ,and
the person who name is subscribed to the within instrument, and ackn wledged to me
that they executed the same for and on behalf of Straightaway Bozeman Investors,LLC.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my Notarial Seal the
day d year first above written.
"LmC4-1
, LAURENJCUMMINGS
`,��aJCU;��,, NptaryPublic
N Pa S: OTARig4%0%for the State of Montana
ted Nn �y j� *: �` Residing at;
g � 0;.SEAL..q Bozeman Montana
Residin z - 9 Pr,. >
-`''-�ofi•�to�`P My Commission Expires;
My Commission expires
"" September 04,2023
Page 4 of 5
2674195 Page 5 of 5 02/27/2020 09:03:28 AM
THE CITY OF BOZEMAN
BY: TIN iATSEN,
DIRECTOR OF COMMUNITY DEVELOPMENT
CITY OF BOZEMAN
STATE OF MONTANA )
:ss
County of Gallatin )
On this X? day of 20?p, before me,a Notary Public for the State
of Montana,personally appeared Martin Matsen,known to me to be the person described
in and who executed the foregoing instrument as Director of Community Development
for the City of Bozeman,whose name is subscribed to the within instrument and
acknowledged to me that he executed the same for and on behalf of said City.
IN WITNESS WHEREOF,I have hereunto set my hand and affixed my seal on the
day and year first written above.
�oaiKio�sf�,, SHANK N l LO STE8HOF
Notary Public
�Q'.�O7AR/qj ;for the State of Montana S�ca.)�tti'1,tm �Gi,��oS'Ce�'I�.t
NT•SN.A1,•��: Bozeman,Residin Montana (Printed Name Here)
My Commission Expires: ` Notary Public for the State of Montana
March 17,2021 Residing at J,-D—teyvjc--�1, AN
My Commission Expires: 3.tI• a,O-a,{
(Use 4 digits for expiration year)
Page 5 of 5
BOZEMANmT
Community Development
NOTICE OF A MASTER SITE PLAN AND CERTIFICATE
OF APPROPRIATENESS APPLICATI'
Project Name: North Central Master Site Plan Application: 21029
Summary: A master site plan to coordinate design,phasing,and infrastructure over 5-7 years.The
overall proposed development proposes to construct 493 dwelling units, 26,397 square feet of retail,
11,000 square feet of restaurant,45,300 square feet of office, 100 hotel rooms, and 646 off-street
parking spaces located in integrated structured parking facilities.The development is proposed in 4
phases across 9 buildings,four blocks, includes on and off-site infrastructure improvements, and a
total of 4.4 acres of land.The project site is zoned B-3, Downtown District.The 2020 Community Plan
designation is Traditional Core.
Parcel size: Overall 4.4-Acres Location: Multiple,bound on the north by W.Villard St., Bound
on the south by W. Lamme St., Bound on the west by N. Grand
Ave., bound on the east by N. Tracy Ave.
Legal Description:
• Tracy's 3rd Add, 507,T02 S, R06 E, Block B, Lot A, Plat J-198
• Beall's 3rd Add, S07, T02 S, R06 E, Block 3, Lot 1 - 24,Acres 2.963, &Blk 4 Lots 1-10 &8.5'
Tract Adj East Side Plat C-44-A
• Trac 's 3rd Add, 507, T02 S, R06 E, Block A, Lot 2 - 3,Acres 1.09063,Amnd Plat C-18-D
Noticing: Public Comment Period Newspaper Site Post Adjacent
11/17/21 - 12/3/21 Legal Ad 11/17/21 Owners
NA Mailed
11/17/21
Advisory Boards: Board Meeting Date fsl
Design Review Board 11/10/2021
Decision: Authority Decision
Director of Community Within 10 days of close of public
Development notice period
This application is evaluated against the COA criteria of Section 38.230.080,and site plan criteria of Section
38.230.100 of the Bozeman municipal code (BMC) and associated standards.Per 38.230.100.B, BMC,
approval is granted if all criteria are met.
The public may comment in writing regarding compliance of this application with the required criteria.
Comments should identify the specific criteria of concern along with facts in support of the comment. Per
38.250.070.B,BMC,issues not raised during public comment period may not be raised on appeal.During the
notice period the City will continue review for compliance with applicable regulations.The most recent
version of this application was received digitally in accordance with the City Manager's Declaration of
Emergency issued by the City on March 16, 2020.Online access to this application is available at:
htWs://www.bozeman.net/government/planning/using-the-planning-map.Select'Project Documents'and
navigate to application 21029 to view the full application.Digital access is also available at the Community
Development Department at 20 E.Olive Street,Bozeman,MT
Comments may be directed via email to Danielle Garber, dgarber@bozeman.net or agenda@bozeman.net.
Written comments may be directed to: City of Bozeman Department of Community Development,ATTN:
Planner Garber,PO Box 1230,Bozeman,MT 59771-1230.For those who require accommodations for
Community Development
disabilities,please contact the ADA Coordinator Mike Gray,at 582-3232 (voice),582-2301 (TDD). Please
reference Application 21029 in any correspondence.
DEVELOPMENT REVIEW APPLICATION
PROJECT IMAGE
T
PROJECT INFORMATION VICINITY MAP
Project Name: NORTHCENTRAL
Project Type(5): MIXED-USE,RESIDENTIAL,OFFICE
Street Address:
Legal Description: BLOCKS 374OFBEALL'S THIRD ADDITION, BLOCKS AID OF TRACY'S THIRD ADDITION
BLOCKS 3/4 OF BEALL'S THIRD ADDITION, BLOCKS A 18 OF TRACY'S THIRD ADDITION
Description of Project:Phased master site plan devolopmenntproposing a total of 9 nowbulldalgs.
associated parking,open space and infrastructure.
Current Zoning: a-3
194,393 SF t 4.4 AC
Gross Lot Area: .T 7
Block Frontage(S): MIXED-STOREFRONTIMIXED-LANDSCAPE
Number of Buildings:----
-
Type and Number of Dwellings: 3e1,FOR RENTIFOR SALE
Building SiZe(s): FOOTPRINTS VARY BY BUILDING-SEE MASTER SITE PLAN PROGRAM SCHEDULE
Building Height(s): IV OR LESS,INCOMPLIANCE WITH UDC
Number of Parking Spaces: 641
Affordable Housing(Y/N):.N
Cash-in-lieu Parkland(Y/N): Y -
Departure/Deviation Request(Y/N): YES,LIGHT FIXTURE
SPECIAL DISTRICTS
Overlay District: i✓I Neighborhood Conservation None
Urban Renewal District: I_-I Downtown U North 7th Avenue _ Northeast L-i North Park None
EXHIBIT E
MT Al
Community Development DEVELOPMENT REVIEW APPLICATION
PROJECT IMAGE
r
/ 1
PROJECT INFORMATION VICINITY MAP _
Project Name: -NORTH CENTRAL
Project Type(s): MIXED-USE,RESIDENTIAL,OFFICE
Street Address:
Legal Description: BLOCKS 3/4 OF BEALUS THIRD ADDITION, BLOCKS A/B OF TRACY'S THIRD ADDITION
BLOCKS 314 OF BEALUS THIRD ADDITION, BLOCKS A/B OF TRACY'S THIRD ADDITION
Description of P roj ect: Phased master site plan development proposing a total of 9 new buildings,
associated parking,open space and Infrastructure.
Current Zoning: B-3 -1
Gross Lot Area: 194,393 SF/4.4 AC
'
MIXED-STOREFRONT/MIXED-LANDSCAPE W t,f
Block Frontage(s): �
Number of Buildings: 9-
Type and Number of Dwellings: 367,FOR RENT/FOR SALE
Building S I Ze(s): FOOTPRINTS VARY BY BUILDING-SEE MASTER SITE PLAN PROGRAM SCHEDULE
Building Height(s): 7o'OR LESS,IN COMPLIANCE WITH UDC
Number of Parking Spaces: 541
Affordable Housing (Y/N): N
Cash-in-lieu Parkland (Y/N): Y
Departure/Deviation Request (Y/N): YES,LIGHTFIXTURE
SPECIAL DISTRICTS
Overlay District: Neighborhood Conservation D None
I
Urban Renewal District: Downtown t- North 7th Avenue Fj Northeast U North Park None
Development Review Application Page 1 of 3 Revision Date:tune 2020
I
1
DEVELOPMENT REVIEW APPLICATION
PROPERTY OWNER
Name: Mountain View Building,LLC;Medical Arts Building LLC;WL-HB One 11 Lofts Owner LLC
Full Address: 20 N TRACY AVE,Bozeman,MT 59715
Email: andy@hbpartners.com
Phone: 406.404.1788
APPLICANT
Name: HOMEBASE PARTNERS
FUII Address: 20 N TRACY AVE,Bozeman,MT 59715
Email: andy@hbpartners.com
Phone: 406.404.1788
REPRESENTATIVE
Name: NICOLESTINE
FUII Address: 109 E OAK ST,SUITE 2E,BOZEMAN,MT 59715
Email: nicoles@architects-sma.com
Phone: 406.219.2216
CERTIFICATIONS AND SIGNATURES
This application must be signed by both the applicant(s) and the property owner(s) (if different)for all application types before the
submittal will be accepted.The only exception to this is an informal review application that may be signed by the applicant(s) only.
As indicated by the signature(s) below,the applicant(s) and property owner(s)submit this application for review under the terms
and provisions of the Bozeman Municipal Code. It is further indicated that any work undertaken to complete a development
approved by the City of Bozeman shall be in conformance with the requirements of the Bozeman Municipal Code and any special
conditions established by the approval authority. I acknowledge that the City has an Impact Fee Program and impact fees may be
assessed for my project. Further, I agree to grant City personnel and other review agency representative's access to the subject site
during the course of the review process(Section 38,200.050, BMC). I (We) hereby certify that the above information is true and
correct to the best of my(our) knowledge.
Certification of Completion and Compliance—I understand that conditions of approval may be applied to the application and that
I will comply with any conditions of approval or make necessary corrections to the application materials in order to comply with
municipal code provisions.
Statement of Intent to Construct According to the Final Plan—I acknowledge that construction not in compliance with the
approved final plan may resu in delays of occupa y or costs to correct noncompliance.
Applicant Signature:
Printed Name: ANDY HOL/LPR4N
Owner Signature:
Printed Name; ANDYHOLLORAN
Representative Signature:
Printed Name: NICOLESTINE
Development Review Application Page 2 of 3 Revision Date:June 2020
DEVELOPMENT REVIEW APPLICATION
APPLICATION TYPE
Check all that apply FORM FORM
1. Administrative Interpretation Appeal AIA El 16. PUD Preliminary Plan PUDP
I_ 2. Administrative Project Decision Appeal APA Ell 17. PUD Final Plan PUDFP
❑3. Annexation and Initial Zoning ANNX El 18. Reasonable Accommodation RA
4. Commercial/Nonresidential COA CCOA E 119. Site Plan SP
5. Comprehensive Sign Plan CSP E 1 20. Special Use Permit SUP
6. Condominium Review CR E121. Special Temporary Use Permit STUP
7. Conditional Use Permit CUP E1 22. Subdivision Exemption SE
8. Extension to Approved Plan EXT E! 23. Subdivision Pre-Application PA
l 1 9. Growth Policy Amendment GPA El 24. Subdivision Preliminary Plan PP
® 10. Informal Review INF E! 25. Subdivision Final Plat FP
11. Master Site Plan MSP El 26. Wetland Review WR
E1 12. Modification/Plan Amendment MOD EI 27. Zone Map Amendment ZMA
! 13. Neighborhood/Residential COA NCOA El 28. Zone Text Amendment ZTA
L 14. Pre-application Consultation None E) 29. Zoning/Subdivision Variance Z/SVAR
E1 15. PUD Concept Plan PUDC E130. Zoning Deviation/Departure None
El 31. Other:
REQUIRED FORMS
Varies by project type
APPLICATION FEE
Varies by project type
CONTACT US
Alfred M. Stiff Professional Building phone 406-582-2260
20 East Olive Street fax 406-582-2263
Bozeman, MT 59715 planning@bozeman.net
www.bozeman.net/planning
Development Review Application Page 3 of 3 Revision Date:June 2020