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HomeMy WebLinkAbout013123 ltr to Farris-OlsenBOZEMANCity Attorney's OfficeMTGreg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, ProsecutorJanuary 31,2023Robert Farris-OlsenMorrison, Sherwood, Wilson, Deola PLLPP.O. Box 557Helena, MT 59624Sent via E-Mail only to rfolsen@mswdlaw.comRE: Sundance Springs Subdivision, Application 22047Dear Rob:I received your letter of January 3, 2022 with respect to the City's decision to "pause" the reviewof site plan application 22047 at the request of the developer. The decision to suspend review ofthe application was appropriate because: first, counsel for the applicant submitted furtherinformation in support of the application on December 13, 2022, which requires another publiccomment period, so any decision would have been delayed in any event by the additional publiccomment period; and, second, the Bozeman Municipal Code (BMC) requires consideration ofpublic comment prior to making a decision and information submitted by you in public commentletters dated December 9, 2022 and December 13, 2022 warranted further consideration by boththe applicant and the City. The delayed decision regarding application 22047 and forthcomingadditional opportunity for public comment in no way disadvantages your client.First, please recall that the after the initial public comment for this application, the publiccomment period has been extended two times to-date, for a total of roughly two and a halfmonths in which the public could comment, well in excess of the minimum fifteen days required.Further, in my email of December 23, 2022 to you, I advised that any additional informationwould trigger another public comment period and in my email of January 3, 2023,1 confirmedthat another public comment period would be forthcoming due to letters the City received fromthe applicant's attorney upon which the public had not yet had an opportunity to review andcomment, as well as any other new information submitted by the applicant.Your assertion that the deadline for the City's decision, pursuant to section 38.230.090.E.1, iscompulsory ignores an important precursory condition to issuing the decision: the fullconsideration of public comment. That section provides:P.O. BOX 1230121 NORTH ROUSE AVENUEBOZEMAN, MT 59771-1230P) 406-582-2309F) 406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE BOZEMANCity Attorney's OfficeMT Greg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutor1. Plan. The review authority must provide an opportunity for public comment upondevelopment proposals. ...a. The review authority after receiving the recommendations of the advisorybodies and considering any public comment must act to approve, approve withconditions or deny an application within ten working days of the close of thepublic comment period. .. . {Emphasis added.)Here, after considering the extensive public comment that you provided on behalf of your client,the City detennined that it needed more information in order to thoroughly review theapplication for compliance with the Unified Development Code (UDC). Pursuant to section38.200.090.B:If, during [the community development director's check of a development plan forcompliance with the UDC], the community development director and/or the buildingofficial deems that the proposed plan or construction does not comply with this chapter,the community development director and/or building official must inform the applicant ofthe infraction and must stop all construction on the project until such time as theapplicant, builder or principal revises such plan to conform to this chapter and/or fulfillsthe requirements of any mandated review procedure as set forth in this chapter.(Emphasis added.)Further, the UDC contemplates and authorizes the City to seek further information from anapplicant outside of the adequacy review process: "A determination that an application isadequate does not restrict the city from requesting additional information during the site planreview process." See BMC section 38.230.090.D.2.b.Nor is the process of considering additional information ad hoc as your letter suggests. Myemail to you of January 3, 2023 explained the process the City would follow:"If the applicants submit additional information to support their application along withthe request to 'unpause' it, public comment will be taken on any new information as well[as Mr. Gallik's letter of December 13, 2022]. Public comment will be limited to thesubject matter of the new information. At the end of public comment and after 10working days, the City must issue a decision. The decision on the application will bemade by the Director of Community Development, Anna Bentley. Once that decisioncomes out, it is appropriate to appeal the decision to the Bozeman City Commission."59Note that the information about the process was provided to you over four hours before yourletter was sent to me asserting that an arbitrary ad hoc process was fabricated that is not121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230©406-582-2309406-582-2302WWW.BOZEMAN.NET•DD: 406-582-2301THE MOST LIVABLE PLACE BOZEMANCity Attorney's OfficeMT Greg Sullivan, City AttorneyBekki McLean, Chief ProsecutorTim Cooper, Assistant City AttorneyJennifer Guittari, Assistant City AttorneyKelley Rischke, Assistant City AttorneyAnna Saverud, Assistant City AttorneyKyla Murray, ProsecutorEdward Hirsch, ProsecutorSamantha Niesen, Prosecutordescribed or allowed under the UDC. Just as the City has done twice already in extending thepublic comment period on this application, the City will provide another public comment periodfollowing the duration and notice requirements prescribed by divisions 38.220 and 38.270, as isrequired for the initial comment period prescribed by 38.230.090.E. 1 .Though the term, "pause," may not be technical, as discussed above the idea of suspending adecision in order to gather additional information and fully consider the application and publiccomment is supported by the BMC. "Pausing" the application is, essentially, the applicantwaiving the requirement of the City to supply a decision within 10 working days. The deadlineexists for the benefit of the applicant and can be waived by them. The City has historicallyallowed applicants to waive the decision deadline and instead offer further information or modifytheir application, particularly when it appears the application may be denied for nonconformancewith the UDC.As you have been advised, the City will provide further public comment opportunity to addressany new information the applicant produces, including the applicant's response to publiccomment. After the City has considered all information submitted by the applicant and all publiccomment thereon, it will render a decision, which your clients may appeal pursuant to38.250.030.Please do not hesitate to contact me if I can further clarify or explain the review process for thisapplication.Sincerely,' /. ^^1^Kelley L. RischkeAssistant City Attorney121 NORTH ROUSE AVENUEP.O. BOX 1230BOZEMAN, MT 59771-1230®406-582-2309(F) 406-5582-2302WWW.BOZEMAN.NE'-DD: 406-582-2301THE MOST LIVABLE PLACE