Loading...
HomeMy WebLinkAbout23214 Sundance Springs Appeal Materials APA A DMINISTRATIVE PROJECT DECISION APPEAL APA APPLICATION PROCEDURE Administrative Project Decision Appeals may be made pursuant to Bozeman Municipal Code section 38.250.030. The filing of the appeal must be received by 5:00pm on the tenth working day following the final decision of the administrative review authority. This application must be submitted with the fee to: Community Development; 20 East Olive St., Bozeman, MT 59715. The Public Counter staff MUST be present to accept application. APA APPLICATION CHECKLIST 1.Create and submit a Planning application using the ProjectDox portal; After completing your Development Review Application, you will receive a Notification Letter (example) via email. Please download this document to upload as a PDF to the “Documents” folder in ProjectDox. **An appellant need not obtain the signature of the property owner (as directed on the Notification Letter)** 2.Document sizing. For instructions on recommended document sizes and types, refer to our Development Center Website; 3.Naming protocol. All files should be numbered and named according to their order listed on your provided Submittal Checklist. File names should start with a 3 digit numeric value (001, 002, etc.) followed by the document name. The numeric value at the beginning of the file name ensures the order in which they are displayed. Refer to our Quick Guide for additional information; 4.Name and address of the appellant; 5.The legal description and street address of the property involved in the appeal; 6.A description of the project, including the project number, that is the subject of the appeal; 7.Evidence that the appellant is an aggrieved person as defined in section 38.700.020; 8.The specific grounds and allegations for the appeal, and evidence necessary to support and justify a decision other than as determined by the administrative review authority. A public notice period is required for any Administrative Project Decision Appeal. 1.Completed and signed Noticing Checklist (N1) and Noticing Instructions and Declaration Form (N2.) **The City will work with the property owner to complete the notice that must be posted on the site; the appellant must complete the required notice by mail** APPLICATION FEE For most current application fee, see Schedule of Community Development fees. Fees are typically adjusted in annually. CONTACT US Alfred M. Stiff Professional Building 20 East Olive Street Bozeman, MT 59715 phone 406-582-2260 fax 406-582-2263 planning@bozeman.net www.bozeman.net/planning APA Checklist Page 1 of 1 Revision Date: November 2021 NOTICING Required Forms Noticing Checklist (N1); Noticing Instructions & Declaration Form (N2) BOZEMANMT Community Development DEVELOPMENT REVIEW APPLICATION Remember to obtain owner signature on this form prior to uploading with the rest of your submittal PROJECT INFORMATION Project Name:Appeal of Administrative Approval of #22047 Project Type(s):Administrative Project Decision Appeal APA Street Address:1.31-acre lot at the corner of South 3rd Avenue and Little Horse Drive. Legal Description: Sundance Springs Sub Ph 1B, S25, T02 S, R05 E, Comm Lot 2 Plat J-257 Description of Project: Two buildings with second-floor offices and ground-level grocery/retail/restaurant space and extensive outdoor patio space. Current Zoning:B-1 Neighborhood Business District Existing Use:Undeveloped Proposed Use:Commercial Gross Lot Area:57000 Number of Buildings:2 Type and Number of Dwellings:0 Building Size (SF):12428 Non-Residential Building Size (SF):12428 Building Height (ft):29.7 Affordable Housing (Y/N): Departure/Deviation Request (Y/N):Yes Zoning Verification Expedited (Y/N):No PROPERTY OWNER Company Name:406 Coal Blowers LLC Name:Michael Schreiner Full Address:P.O. Box 370, Bozeman, MT 59771 Email:michael@westernmountaininvestments.com Phone:(406) 763-6162 APPLICANT Company Name:N/A Name:Geoffrey Poole Full Address:3772 Alder Creek Drive , Bozeman, Montana 59715 Email:gpoole@eco-metrics.com Phone:(406) 599-4313 REPRESENTATIVE Company Name:Morrison, Sherwood, Wilson, Deola PLLP Name:Robert Farris-Olsen Full Address:401 North Last Chance Gulch PO Box 557, Helena, Montana 59624 Email:rfolsen@mswdlaw.com Phone:(406) 442-3261 CERTIFICATIONS AND SIGNATURES Applicant signature is captured electronically at time of application submittal. This application PDF must also be signed by the property owner(s) 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. 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 result in delays of pccupancy or costs to correct noncompliance. Property Owner Signature: Printed Name:Michael Schreiner CONTACT US Alfred M. Stiff Professional Building phone 406-582-2260 20 East Olive Street fax 406-582-2263 Bozemn, MT 59715 planning@bozeman.net www.bozeman.net/planning PLNAPP-3572 Administration Process Decision Appeal of Approval of Site Plan #22047 Names and addresses of appellants: Tim Swanson 375 Peace Pipe Drive Bozeman MT 59715 Nancy Swanson 375 Peace Pipe Drive Bozeman MT 59715 Geoffrey Poole 3772 Ellis View Loop Bozeman, MT 59715 PLNAPP-3572 Administration Process Decision Appeal of Approval of Site Plan #22047 Address and Legal Description of property involved: 1.31-acre lot at the corner of South 3rd Avenue and Little Horse Drive. Sundance Springs Sub Ph 1B, S25, T02 S, R05 E, Comm Lot 2 Plat J-257 Project description subject to appeal: Site Plan #22047 Two buildings with second-floor offices and ground-level grocery/retail/restaurant space and extensive outdoor patio space. PLNAPP-3572 Administration Process Decision Appeal of Approval of Site Plan #22047 Evidence of aggrieved persons Tim and Nancy Swanson are residence of the Sundance Springs subdivision, of which the subject property (Site Plan #22047) is a part. The Development Guidelines and Master Plan of the Sundance Springs PUD govern their residence and the subject property. The live within sight and earshot of the proposed development and purchased their home with the expectation that the city and any development on the subject property would be bound by the terms of the PUD and the Chapter 38 of the BMC, both of which are violated by Site Plan #22047. Geoffrey Poole is a neighbor of the proposed development and lives in one of two residences that are within 200 ft of the subject property. Chapter 38 of the BMC implicitly recognizes the potential impact the subject property on his residence by requiring him to be noticed for development activities. His deck overlooks the site and he purchased his property understanding the limits imposed by the Sundance Springs PUD on the subject property. He has been in active dialog with the developer for about two years, asking for changes to the site plan to reduce impacts on the peaceful use of his residence as required by the PUD. The City’s and the developer’s failure to comply with the terms of the PUD and and BMC will impact the peaceful enjoyment of his home. The Swansons and Mr. Poole have been involved actively in reviewing and commenting on the application, both individually and through their counsel’s letters to the City dated December 9, 2022, December 13, 2022 and June 12, 2023. Those letters and comments set forth the specific impact that this project will have on them, as well as establish their involvement in commenting on the process. As such, they are aggrieved parties under BMC 38.250.030 (A), 38.700.030, and § 76-2-327 (1), MCA. John M. Morrison Frederick F. Sherwood David K. W. Wilson, Jr. Linda M. Deola Brian J. Miller Robert Farris-Olsen Scott Peterson rfolsen@mswdlaw.co m Attorneys at Law 401 North Last Chance Gulch P.O. Box 557, Helena, Montana 59624-0557 www.mswdlaw.com Andrée Larose Anne Sherwood (406) 442-3261 (406) 443-7294 FAX July 11, 2023 Via ProjectDox Bozeman City Commission Director, Bozeman Community Development RE: Appeal of Administrative Decision approving Site Plan #22047 Dear Commissioners and Ms. Bentley: I am writing on behalf of my clients Geoffrey Poole and Tim and Nancy Swanson to appeal the recent decision to approve Site Plan #22047. Respectfully, the decision was deficient. This letter serves as an overview of the errors that are being appealed, the details of which are articulated in the attached “grievance narrative” (a summary document providing graphics to aid understanding of the grievance) “grievance details” (a detailed text description of the grievance), and also in the 194 public comments that ask for denial of #22047, which were submitted by the community, including neighbors, the HOAs, my clients, and my past written comments. Previously, my clients apprised the City that the Sundance Springs PUD was structured and approved by the City Commission as a phased “Master Plan and Development Guidelines only” PUD under section BMC 18.54.080.A.3 of the 1992-era Bozeman Zoning Ordinance. As such, the required elements of the PUD are a “Master Plan” and “Development Guidelines,” which together set forth the terms governing development under the PUD. The City has not refuted or even acknowledged these facts. Previous comments explained that the current BMC requires compliance with all aspects of the PUD set forth in its Approved Final Plan and Conditions of Final Approval. Thus, in the case of the Sundance Springs PUD, the City is bound – at minimum – to enforce the requirements of the Master Plan and Development Guidance of the PUD. The City is also on notice that the record of the PUD’s requirements is incomplete. Although the BMC requires that the Approved Final Plan be used as the basis for assessing Site Plan #22047, the Approved Final Plan (including the Final Master Plan and Final Development Guidelines) have been lost by the City, as have been some elements of Approved Preliminary Plan. The City reviewed and approved Site Plan #22047 against the modern B-1 Zoning District and the PUD’s Conditions of Preliminary Approval, which the City described as the surviving record of PUD requirements. Yet surviving copies of the Master Plan, along with the Approved Preliminary Plan’s Covenants and Development Guidelines, set forth many more requirements of the Final PUD, including the required enforcement of the 1992-era Zoning Ordinance under the PUD. In short, the approval of Site Plan #22047 was in error because, in approving the plan, the City violated in the BMC in multiple ways: the modern BMC identifies the PUD’s Approved Final Plan as the required basis for approval of #22047, but the Approved Final Plan is missing. Thus, the decision to assess the plan against other documents violated the BMC; the modern BMC enforces all requirements of the PUD, including the terms of the PUD’s Master Plan and the Development Guidelines, which were vetted, modified, conditionally approved, and ordered by the City Commission. The City violated the BMC by assessing #22047 against the PUD’s Conditions of Preliminary Approval while ignoring all other surviving requirements of the PUD. the applicant has failed to demonstrate that the proposed locations for buildings and parking lots meet the purpose of the Block Frontage Standards and the specific departure criteria; therefore, the City violated the BMC in granting requested departures; as documented in the Introduction to the PUD’s Covenants and Development Guidelines, the PUD’s requirements operate beyond the requirements of the 1992 Zoning Ordinance. Therefore, the City has violated the current BMC by not enforcing the 1992-era standard, even if, as the City contends, only a subset of the Covenants are applicable; the City has violated the BMC by elevating the City’s professed “preferences” above the requirement to comply with the BMC. Based on preference, the City has allowed parking reductions that will yield a parking demand exceeding available on-site parking by more than 100 spaces. This will occur in a residential neighborhood where on-street parking has been disallowed by order of the City Commission to protect public safety; the City declines to enforce the Covenants and Development Guidelines on the basis that its “custom and practice” is to set aside its enforcement authority over the PUD’s Covenants and Development Guidelines, yet the evidence provided to the City shows that, until now, the custom and practice has been to enforce the Sundance Springs Covenants as legally binding. Much of the acrimony surrounding Site Plan #22047 arises because the Applicant designed a Site Plan that violates numerous terms of the PUD, by which the applicant agreed to be bound voluntarily when purchasing the property. Site Plan #22047 simply ignores the terms of PUD’s surviving Master Plan and the Covenants and Development Guidelines surviving in the PUD’s Approved Preliminary Plan, all of which were vetted, modified, approved, and ordered by the City Commission and are binding under the current BMC. Therefore, the applicant has failed to meet the BMC’s mandate that he demonstrate compliance with all applicable standards and requirements. Consequently, the City has violated the BMC by approving the non-compliant Site Plan. Again, the evidence that supports our assertions is found in the attached “narrative” and “details” of this grievance, along with all public comment regarding the PUD, which are incorporated herein by reference. To that end, the City Commission should reaffirm the requirements of the PUD that were established by order of the Commission and disapprove Site Plan #22047. Sincerely, Robert Farris-Olsen 1 Narrative: Grounds and Allegations for Appealing Approval of #22047 Site Plan #22047 has been approved by the City under the UDC, Chapter 38 of the BMC. The plan proposes a commercial development under the Sundance Springs PUD. Appellants: Tim and Nancy Swanson & Geoffrey Poole Overview: We are appealing the approval of Site Plan #22047 under the Sundance Springs Planned Unit Development (PUD) because: ● the City has lost the PUD’s Approved Final Plan; without the Approved Final Plan, the City’s approval of Site Plan #22047 violates the Bozeman Municipal Code (BMC). ● The City ignored (and Site Plan #22047 violates) many PUD requirements that are known from the surviving record. ● the City’s approval of departures requested by the applicant violated the BMC. In the pages that follow, we document the grounds for appeal. 1. Required Elements of the Sundance Springs PUD Grievance in response to Approval of Site Plan #22047 Here we describe the required elements of the Sundance Springs PUD. In brief: The PUD must have a “Master Plan” and “Development Guidelines” that set forth the terms governing development under the PUD. 3 Sundance Springs PUD ●A Phased PUD ● A “Master Plan and Development Guidelines only” PUD, pursuant to 1992 BMC 18.54.080.A.3. The Sundance Springs PUD was submitted to the City as a “Master Plan and Development Guidelines only” PUD, as described by BMC 18.54.080.A.3 of the 1992-era municipal code. 4 Sundance Springs PUD Two required elements describing PUD terms: – Master Plan – Development Guidelines The Sundance Springs PUD, then, has two required elements: ● a PUD Master Plan ● Development Guidelines Having no other components, the “Master Plan” and “Development Guidelines” set forth the terms governing development under the PUD. 5 Approval Authority City Commission PUD’s have Two Approved Plans Preliminary Plan Approved Preliminary Plan & Conditions of Preliminary Approval Final Plan Approved Final Plan & Conditions of Final Approval The PUD Assures compliance with Approved Prelim Plan and Conditions of Approval Considers public comment & compliance with BMC and state regs. Developer (PUD Applicant) Every PUD has two approved plans. ● An Preliminary Plan created by the PUD applicant and then approved and ordered by the City Commission, usually with associated Conditions of Preliminary Approval. ● A Final Plan* is then compiled by the PUD applicant and approved by a City Approval Authority,** sometimes with attached Conditions of Final Approval.” *The Final Plan is created by combining the terms of the Approved Preliminary Plan and the Conditions of Preliminary Approval. **The Approval Authority ensures that the Final Plan complies with the Approved Preliminary Plan and the Conditions of Preliminary Approval. 6 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD: File Z-95125 Final PUD: File Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan Each approved plan for the Sundance Springs PUD, then, was required to have a Master Plan, Development Guidelines, and potentially, associated Conditions of Approval The “final” versions of each document were required to conform to all terms of the “preliminary” versions, and with the Conditions of Preliminary Approval. Having been ordered by the City Commission, the terms of the Approved Final Plan* are “lawfully adopted rules” that govern development within the PUD. * As described in the Master Plan and Development Guidelines 2. Role of the Sundance Springs PUDs under the Current BMC Grievance in response to Approval of Site Plan #22047 Having established that the Final Master Plan and Final Development Guidelines contain the terms of the PUD, we will now summarize how the PUD is applied under the current BMC. In brief: The current BMC requires compliance with all aspects of the PUD. 8 Compliance with PUDs is required BMC 38.100.50.A states: “Wherever the requirements [of Chapter 38 of the BMC] are at variance with the requirements of any other lawfully adopted rules or regulations ... the most restrictive requirements, or those imposing the higher standards, will govern” (emphasis added). According to the current BMC... The City must compare the requirements of the Unified Development Code (UDC) with all other lawfully adopted rules and regulations,* and impose the most restrictive requirements thereof. *Again, the terms of the PUD’s Master Plan and Development Guidelines are lawfully adopted development rules. 9 Compliance with PUDs is required BMC 38.430.040.A.3.d pertains to approvals under a PUD: “Issuance of building permits and other development approvals are based on the approved final plan and any conditions of approval” (emphases added). The City must ensure that development approvals comply with the Master Plan and Development Guidelines found in the Approved Final Plan along with any Conditions of Final Approval. 10 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan Thus, if we look at the expected record for the PUD, the documents noted with a green check mark contain the terms of the PUD enforced by the BMC. 11 Compliance with PUDs is required BMC 38.430.040.A.3.d states: “No city administrative personnel are permitted to issue permits for improvements which are not indicated on the approved final plan.” The City can not approve any proposed buildings or improvements that are not indicated on the Final Master Plan contained in the Sundance Springs PUD Approved Final Plan. 12 Compliance with PUDs is required BMC 38.430.080 states: “The failure to comply with any of the terms, conditions of approval or limitations contained on the site plan, landscape plan, building elevations, other approved documents, or other element pertaining to a planned unit development which has received final approval from the city may subject the applicant or current landowner to the enforcement remedies contained in section 38.200.160.” Finally, failure to comply with any terms of the Sundance Springs Approved Final Plan or Conditions of Final Approval is a violation of the law that may subject the applicant to enforcement actions. 13 Summary The terms of the Sundance Springs PUD final Master Plan and final Development Guidelines are legally adopted development rules enforced under current: ● BMC 38.100.050 ● BMC 38.100.080 ● BMC 38.430.040.A.3.d ● BMC 38.430.080.A Failure to enforce or adhere to the terms Sundance Springs PUD final Master Plan or final Development Guidelines is a violation of BMC Chapter 38. In summary, failure to enforce or abide by the terms of the final Master Plan or final Development Guidelines is a violation of the BMC. 3. Existing Record of the Sundance Springs PUD. Grievance in response to Approval of Site Plan #22047 We have established that the terms of the PUD contained in the final Master Plan and final Development Guidelines are enforced by the current BMC. Now we will review the City’s remaining record of the PUD’s Approved Preliminary Plan and Approved Final Plan. In brief: The record is incomplete. The Approved Final Plan and other elements of the PUD are lost. The BMC requires that the missing Approved Final Plan be used as the basis of approval for Site Plan #22047. 15 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING MISSING Much of the City’s record for the Sundance Springs PUD has been lost. Final PUD: All documents required by the BMC for development review under the PUD (those with the green check marks) are missing. Some parts of the folder containing the record of Final Approval survive. Preliminary PUD: The Approved Preliminary Plan folder is retained but the section describing the Master Plan has been removed* from that folder. *Disconcertingly, the same Master Plan description has also been removed from the preliminary subdivision application for Sundance Springs (Document P-9539). 16 Response from City Attorney’s Office Signature** The City Attorney’s office acknowledged that the missing records were legally required for review of Site Plan #22047, but characterized adherence to the BMC as a “failing,” and as “strict” behavior. The City stated that the outcome of adhering to the law would be undesirable to the City, and that therefore the City does not have to comply with the BMC but can review the plan substituting other documents for the Approved Final Plan. Thus, the City’s position appears to be that the City does not have to abide by the BMC if doing so would yield an outcome that is undesirable to the City. The claim that the “property could never be developed” in compliance with the BMC is unsupported and specious.* *The paths to development that comply with the BMC include the Commission-ordered provision for development of the site if commercial development is not allowed. (Condition of Preliminary Approval #29). **The signature has been redacted because our grievance is not against a particular person. 4. Reconstructing Requirements of the Sundance Springs PUD Grievance in response to Approval of Site Plan #22047 We have established that review of #22047 can not proceed under the BMC because the terms of the PUD’s Approved Final Plan are unknown. The City’s position is that it can review #22047 using other documents. Therefore, we now highlight known requirements of the PUD derived from other documents in the remaining record of the Sundance Springs PUD. In brief: Surviving copies of the Master Plan and the Approved Preliminary Plan’s Development Guidelines document many requirements of the PUD. We contend that the City has violated the BMC by reviewing Site Plan #22047 without the Approved Final Plan. Regardless, the Site Plan was reviewed and approved. 18 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING MISSING Here we examine some of the remaining contents of the “record of approval” folder for the Approved Final Plan (Z-9812). 19 Surviving Final Master Plan The official Final Master Plan was contained in the “Approved Final Plan” and therefore is lost. However, the “Sundance Springs Master Plan” survives in the remaining Z-9812 folder. 20 Surviving Final Master Plan Pursuant to 1992 BMC 18.45.080.D.1 the role of the PUD’s Master Plan is show “proposed conditions pertaining to such elements as building locations, open spaces, vehicular and pedestrian circulation, and boundaries of the individual phases of the PUD.” The surviving Master Plan fulfills that role by showing the proposed number, location, and use of the building proposed under the PUD for Commercial Lot #2, the lot associated with Site Plan #22047. 21 Market Study The remaining Z-9812 folder also contains a Market Study, ordered by the City Commission as a Condition of Approval of Z-95125. The Market Study includes a “Village Plan” – an enlarged excerpt from the Master Plan – showing the same building, building location, open spaces, and vehicular and pedestrian circulation shown on the surviving Master Plan Document. 22 Market Study & Master Plan Requirements ● Commercial Lots: No businesses so unique as to draw traffic into the neighborhood ● Lot #2: Single story convenience store; one building The market study also describes the PUD’s “Proposed Buildings.” According to the Market Study, the PUD allocated a single one-story building to Commercial Lot #2. The designated use was a convenience store (retail). This information is consistent with the requirements surviving Master Plan document. 23 Sundance Springs Marketing Info After approval of the PUD, marketing information describing the same Final Master Plan was distributed to potential buyers of lots within Sundance Springs. 24 1.31 ACRE COMMERCIAL LOT IN THE ORIGINAL SUNDANCE SPRINGS PUD. THIS LOT HAS BEEN MASTER PLANNED FOR A CONVENIENCE STORE. Here, a past real estate listing for Commerical Lot #2 acknowledges that the PUD’s Master Plan designated a Convenience Store on the site. This is also consistent with the surviving Master Plan. 25 2020 Concept Review Finally, the 2020 concept review of the proposed site plan (City Document #20298) includes a copy of the same Master Plan Map. 26 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING MISSING In summary, the final Master Plan contained in the Approved Final Plan is lost, but requirements of the Master Plan survive in multiple forms and in multiple places in the remaining record of the PUD. 27 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING MISSING Now we will consider the Approved Preliminary Development Guidelines that were reviewed, amended, approved, and ordered by the City Commission and survive within Z-95125. 28 Approved Preliminary Plan The City Attorney’s office and Community Development Staff acknowledge only the subdivision’s “Covenants” Yet the PUD’s Approved Preliminary Plan refers to the same documents as the “Covenants and Development Guidelines.” (Tab 8 of the Approved Preliminary Plan in Z-95125) As Development Guidelines, the associated requirements: ● were vetted, amended, approved, and ordered by the City Commission; ● are required elements of the Sundance Springs PUD; ● put forth terms of the PUD that must be enforced under the BMC. 29 Covenants & Development Guidelines PUD Submittal Requirements (1992 BMC 18.54.080.D.2): ● submittal of Covenants is optional ● if submitted, protective covenants are part of the PUD’s Development Guidelines The dual role of the “Covenants and Development Guidelines” is clarified by Section 18.54 of the 1992-era BMC – the code under which the PUD was submitted and approved. Section 18.54.080.D.2.h states that Covenants submitted as part of the PUD’s preliminary plan are part of the PUD’s Development Guidelines. * The City contends that the Covenants represent purely private agreements that need not be enforced under the BMC. Note that submission of Covenants as part of the preliminary plan was optional under 1992 BMC 18.54.080.D.2. If the Covenants were intended by the PUD applicant to be merely private agreements, they would not have been submitted for approval as part of the Development Guidelines in the preliminary plan. 30 Covenants & Development Guidelines Sundance Springs Commercial Covenants PUD Commercial Development Guidelines PUD’s Covenants and Development Guidelines Tab 8, Z-95125 PUD’s Development Guidelines ● Approved by City Commission (Jan 1996, Z-95125) ● Lawfully adopted development rules ● Enforcement required by City Sundance Springs Covenants ● Executed by developer (March 1998). ● Private agreements to which the City is a party. ● Enforced by City’s custom and practice (until now). Therefore, the document contained under Tab 8 of the Approved Preliminary Plan was used for two separate legal purposes. It was: ● vetted, amnded, approved, and ordered by the City Commission as the PUD’s Preliminary Development Guidelines (as required under 1992 BMC 18.54.080.D.2), and ● the basis for the private Covenants executed by the PUD applicant. 31 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING MISSING Additional evidence that enforcement of the Development Guidelines was expected by the City Commission and is required under the BMC comes from the Record of Preliminary Approval. 32 Public Hearings According to the public record, Mr Dan Kamp was an architect retained to review the planning process and the PUD’s Preliminary Plan. In public hearings, Mr Kamp testified to the City Commission and to the public that enforcement of the Development Guidelines would ensure that the vision of the PUD’s original applicant would be realized. 33 “Covenants and Developmental Guidelines are found in Section. 8 of the submittal. … Site Plan review will occur for all development within the neighborhood services area, and that review will ensure compliance with the Guidelines.” (Page 24, emphasis added) Staff Report for Z-95125 Even more compelling is the above statement from the Staff Report for Z-95125. Prior to approving Z-95125, the Commission was assured by Planning Staff that the Development Guidelines* would be enforced during Site Plan Review of Commercial Development under the PUD. *Found under Tab 8 in Z-95125, the PUD’s Preliminary Plan approved by the City Commission. 5. Review and Approval of #22047 Grievance in response to Approval of Site Plan #22047 We have established that the surviving record of PUD requirements consists of, at minimum*: ● the surviving PUD Final Master Plan ● Preliminary Development Guidelines. ● Conditions of Preliminary Approval ● Staff Report for Z-95125 ● Market Study ordered by City Commission ● Public record of City Board and Commission meetings. We now look at how the City applied this record to the approval of Site Plan #22047. In brief: The City recognizes only the Conditions of Preliminary Approval as binding terms of the PUD. Other surviving terms are ignored. *Our previously submitted public comments include references to other City documents that we incorporate here by reference as part of the relevant record of PUD requirements. 35 City Review Process - Staff Report Sundance Springs Commercial Lot SP Application #22047 June 28, 2023 Page 21 “The application has been reviewed against current BMC standards, as well as any City required Covenants that were imposed as a conditions of approval of the PUD.” The City reviewed Site Plan #22047 against PUD’s Conditions of Preliminary Approval and the Current BMC.* *The introduction to the PUD’s Preliminary Covenants and Development Guidelines (again, vetted, amended, approved and ordered by the City Commission) states that the Covenants and Development Guidelines “detail how the Neighborhood Services Property within the Sundance Springs Subdivision are to be developed and maintained beyond the minimum requirements of the Bozeman Zoning Code which exists at the date of the execution of this document.” Therefore, current BMC 38.100.050.A requires that Site Plan #22047 conform to the 1992-era zoning ordinances. 36 Sundance Springs PUD Documents Conditions of Approval (Findings of Fact & Order) Approved Preliminary PUD Master Plan Approved Preliminary Development Guidelines Record of Approval Preliminary PUD Z-95125 Final PUD Z-9812 Approved Preliminary Plan Conditions of Approval (Approval Letter) Approved Final PUD Master Plan Approved Final Development Guidelines Record of Approval Approved Final Plan MISSING MISSING MISSING MISSING IGNORED IGNORED IGNOREDIGNORED MISSING The only requirements of the PUD considered by the City were the conditions of Preliminary Approval. The City’s position, then, is that: ● the Conditions of Preliminary Approval of Z- 95125 are binding, but Development Guidelines in Z-95125 (the approved document) are not; ● Surviving evidence of the terms of the Approved Final Plan can be ignored, even though the BMC identifies the Approved Final Planas the required basis of approval for Site Plan #22047. The City’s approval of Site Plan #22047 seems to hinge on the assumption that the PUD had no Master Plan and no Development Guidelines.* *Again, the PUD was a “Master Plan and Development Guidelines only” PUD approved under 1992 BMC 18.54.080.A.3 (as discussed previously). The Master Plan and Development Guidelines were required elements of the PUD setting forth the binding terms of the PUD. 6. Assessing Site Plan #22047 against the available record of the Sundance Springs PUD Grievance in response to Approval of Site Plan #22047 We have established that the City: ● violated the BMC by approving Site Plan #22047 without the Approved Final Plan, ● ignored the surviving record of most requirements of the Approved Final Plan when approving #22047 ● ignored the 1992-era zoning imposed by the Development Guidelines of the PUD Here we compare Site Plan #22047 to the surviving requirements of the PUD’s Master Plan and Development Guidelines. In brief: Site Plan #22047 violates many requirements of the PUD. 38 The PUD’s Development Guidelines “Furthermore, the intent is to establish minimum standards to ensure that the type of building constructed is comparable to and blends with the eclectic styles of housing found in the surrounding developments...” Proposed development Neighborhood buildings The Development Guidelines require that development on the Neighborhood Services Lots is comparable to and blends with the surrounding residences... 39 The PUD’s Development Guidelines “… and that the type of building avoids the appearance of ‘Commercial Development.’” Primary Roof Form Secondary Roof Use Primary Roof Form to enclose upper levels Forms Required design guidance Proposed development “… and avoids the appearance of “Commercial Development.” 40 The PUD’s Development Guidelines Site Plan #22047 has: ● Inadequate setbacks ● Inadequate parking ● Oversized buildings ● Disallowed basements ● Improvements to support uses requiring future approvals As listed above, Site Plan #22047 violates many other aspects of the Preliminary Development Guidelines approved and ordered by the City Commission. 41 Violations of the PUD’s Master Plan Master Plan Requirements ● One building ● 5000 sq ft leasable space ● Single story ● Central location on lot ● Retail use only ● No provision for large patios Site Plan #22047 Proposal ● Two buildings ● 12000+ sq ft leasable space ● Two story ● On east edge of lot ● Office / restaurant / retail ● 3000 sq ft of outdoor patios As listed above, Site Plan #22047 violates multiple provisions of the Master Plan. 7. Parking Grievance in response to Approval of Site Plan #22047 We will now address the City’s decision to approve parking reductions allowed under the current B-1 Zoning District. In brief: Parking reductions are not allowed under the PUD. Modern reductions, if allowed, will create a parking demand that exceeds on-site parking by more than 100 spaces when applied across the commercial lots. This will create inordinate on-street parking demand where the Commission has ordered no on-street parking. 43 Parking Restrictions When the Sundance Springs PUD was created, the City Commission ordered that no parking be allowed on the residential streets to protect public safety. Passage of emergency vehicles through the 24-ft wide streets could be blocked by on-street parking. 44 Parking Demand “[T]he City declines to enforce [the PUD’s parking standards] in favor of encouraging the use of modem minimum parking standards.” May 19, 2023 Letter from City Attorney to Applicant, Footnote #3 The City’s stated preference is to allow parking reductions from anticipated parking demands.* When eventually applied across the combined 6.23 acres of the two Sundance Springs Neighborhood Services lots, such parking reductions will create an excess parking demand of more than 100 spaces**. There is simply no space in the surrounding residential neighborhood to accommodate such an excess parking demand. * Parking reductions are not allowed under the Development Guidelines of the PUD ** Site Plan #22047 has an excess parking demand of 24 spaces on a 1.31 acre lot, or an excess parking demand of 18 spaces per acre. The two commercial lots in Sundance Springs are a combined 6.23 acres. 6.23 acres times 18 spaces/acre would create an excess parking demand of 114 spaces once both Commercial Services lots are developed. 45 Parking Demand The City’s proposed solution – no parking signs on the streets -- is not workable for such an extreme excess parking demand. Rather, approval of Site Plan #22047 will contribute to perpetual enforcement problems for the City and perpetual impacts on the residential area. Once Sundance Springs Businesses are established and limited by on-site parking, there will be pressure to widen adjacent residential streets to accommodate overflow parking* and to overturn the No Parking order that was a condition of approval for the PUD. *The MAP Brewery in north Bozeman provides an example of exactly this scenario. 46 Resulting Code Violation BMC 38.100.050.A states: “In their interpretation and application, the provisions of this chapter are minimum requirements adopted for the promotion of the health, safety and general welfare of the community. In some instances the public interest will be best served when such minimums are exceeded. Wherever the requirements of this chapter are at variance with the requirements of any other lawfully adopted rules or regulations, or wherever there is an internal conflict within this chapter, the most restrictive requirements, or those imposing the higher standards, will govern.” (emphases added) Because the extreme excess parking demand, the potential for illegally parked cars to block emergency vehicle access into the neighborhood elevates the City’s responsibility to protect public safety (BMC 38.100.050.A). In this case, the minimum standard of the current B-1 zoning district does not protect public safety.* The parking reductions must be disallowed. *Further, Site Plan #22047 violates the parking requirements of the PUD. 8. Requested Departures from Block Frontage Standards in Site Plan #22047 Grievance in response to Approval of Site Plan #22047 Here, we discuss the City approval of departures from the Block Frontage Standards in Site Plan #22047. Required departure criteria were not met. In brief: For departures to be granted, the BMC requires the applicant to demonstrate that proposed conditions meet: ● the purpose(s) of the block frontage standards ● other applicable departure criteria. The application fails at this requirement. The City violated the BMC in granting the departures. 48 BMC 38.25.060.E: In order for departures to be granted, “[p]roject applicants must successfully demonstrate to the review authority how the proposed departure meets the purpose(s) of the standard and other applicable departure criteria that applies to the specific standard” (emphases added). Departure Requirements Application #22047 requests departure from BMC 38.510.020.F.1 and BMC 38.510.030.C of the Block Frontage Standards. Departures can not be granted unless the applicant demonstrates that the departure meets the purpose of the standard and the departure-specific criteria (pursuant to BMC 38.25.060.E). 49 Purpose: BMC 38.510.010.A.2. “To design sites and orient buildings with an emphasis on compatible development and creating a comfortable walking environment.” Walking Environment Existing Trail Frontage Existing Trail Frontage Sidewalk and Street FrontageSidewalk andStreet FrontageParking ParkingA purpose of the Block Frontage Standards is to create a comfortable walking environment. The application #22047 violates parking location requirements (BMC 38.510.030.C) of the Block Frontage Standards by locating parking: ● along 100% of the walkable street frontage to the east, ● along ~90% of the walkable trail frontage to the north, and ● in front of the building along the walkable primary frontage to the south. The departure can not be granted because the Site Plan places parking lots along all existing walkable frontages, and thus fails to create a comfortable walking environment on any existing frontage. 50 Criterion: BMC 38.510.030.3.d: “There must be an acceptable tradeoff in terms of the amount and quality of storefront area that is integrated with the development and the applicable parking location departure.” Site Plan #22047 Departure Narrative: “The tradeoff for this requested parking departure is open space for recreation and riparian buffer along Middle Creek Ditch creating a better experience for the intended users.” Required Tradeoffs Further, the specific departure criterion requires a trade-off between parking location and the amount and quality of storefront integration. The trade-off described by the applicant is for open space and riparian buffer southeast of the buildings to promote a “better experience for the intended users.” The primary “intended users” to the southeast of the proposed buildings are business patrons on the proposed patios. Departures designed to create required open spaces and riparian buffers are not allowed. Departures can not be approved to improve the experience of business patrons on outdoor patios. The departure can not be approved because increased storefront integration has not been demonstrated by the applicant. 51 Purpose: BMC 38.510.010.A.2. “To design sites and orient buildings with an emphasis on compatible development and creating a comfortable walking environment.” Criterion: BMC 38.510.020.F.1.d: “Departures may be considered provided the location and front orientation of the buildings are compatible with the character of the area and enhance the character of the street.” Site Plan #22047 Departure Narrative: “Frontage along South 3rd Avenue is not desirable in the location due to the low-density agricultural/residential character of the existing neighborhood.” “Two-story buildings along this frontage would not match the low- density agricultural/residential feel of adjacent neighborhoods.” Compatibility of Development A purpose of the Block Frontage Standards is to emphasize compatible development. The specific departure criterion requires the departure to be compatible with the character of the area. Perversely, the applicant requests a departure because the building design is incompatible with the area. In other words, because the applicant designed buildings that are incompatible with the neighborhood, the applicant has gained a departure from standards that have the explicit purpose of “an emphasis on compatible development.”* The proposed building locations amplify incompatibility with the surrounding neighborhood by moving incompatible buildings off the adjacent arterial street, closer to nearby residences, and fronting them on tranquil open space. * By this logic, the standard would apply only those buildings designed to be compatible with their surroundings. Any building in any development designed to be incompatible with its surroundings would gain departure. 52 Addressing Frontages Existing Trail Frontage Existing Trail Frontage Sidewalk and Street FrontageSidewalk and Street FrontageParking ParkingP ro p o s e d T ra ilP ro p o sed T railFrontageFrontageSidewalk and Street FrontageSidewalk and Street FrontagePrimaryStreet Frontage PrimaryStreet Frontage Fundamentally, the Block Frontage Standards require that buildings be sited to address a lot’s frontages. Here, instead, the applicant adjusts the frontages to address his preferred building sites. Site Plan #22047 proposes that the west building front the street to the south. Yet the plan degrades all existing frontages by lining them with parking while requiring creation of a new frontage for the east building to address. Brazenly, the applicant proposes to create the new frontage by building a trail on property owned and controlled by the adjacent HOA, without permission from the HOA. Without such permission, the east building will never front a trail, yet existing frontages are degraded with parking areas. Recall that the entire departure is predicated on the “need” to move incompatible buildings, designed by the applicant, off an arterial street and closer to neighboring residences. Approving such a departure makes a mockery of the primary purpose of Block Frontage Standards – an emphasis on compatible development. The remedy required by the BMC is as simple as it is clear. If the City enforced the terms of the PUD, as required by the BMC, a one-story 5000 sq ft building that complements the neighborhood and supports retail use could address the main frontage to the south, with ample room for parking without degrading existing frontages. 9. Preferences, Customs, and Practices of the City Grievance in response to Approval of Site Plan #22047 We have shown that the City has violated the BMC by granting departures requested by the applicant because the applicant failed to demonstrate how Site Plan #22047 meets the intent of the Block Frontage Standards or or specific approval criteria. Next, we explore the City’s “preferences” and “customs and practices” relied upon to approve Site Plan #22047. In brief: The City elevates it’s “preferences” over compliance with the BMC and misrepresents its “custom and practice” with respect to the Sundance Springs PUD. 54 Preference, Custom & Practice “[I]t is the City's custom and practice to only enforce those covenants relied upon for approval of a development. Further, the City prefers to encourage development of the commercial property pursuant to today's BMC standards, which are reflective of the community's needs and values today not those established over twenty years ago. Therefore, the City declines to exercise authority it may have to enforce the covenants.” (emphases added) -Bozeman City Attorney’s Office The City declines to enforce requirements of the Sundance Springs PUD based on its: ●custom and practice* to enforce only covenants relied upon to approve development, and ●preference* for development that reflects the community’s needs and values. The City seems to be unaware that: ●the Covenants and Development Guidelines were relied upon heavily to approve the PUD; ●the City’s customs and practice has been to enforce the terms of the PUD’s covenants, and; ●the current needs and values of the community were expressed in nearly 200 public comments and are well-reflected by the terms of the PUD. *In the end, the City’s assessment of Site Plan #22047 is not a question of preference, or “custom and practice.” The current BMC requires enforcement of terms of the PUD, including the Development Guidelines. 55 Custom and Practice 2004 Enforcement of Sundance Springs Covenants Violation: The practice of the City is to enforce the Sundance Springs Covenants under the PUD. For instance, in 2004 a residential developer violated a setback established in the Covenants. The City Commission took action to remedy the illegal violation of a required setback. This action was consistent with the City’s stated custom of enforcing covenants relied upon for approval of a development. The “Application Criteria” used to approve the Sundance Springs PUD (Tab 6, Z-95125) show that the Covenants and Development Guidelines were relied upon extensively for approval of the PUD. That the City is now unwilling to enforce the covenants represents a reversal of custom and practice regarding the Sundance Springs PUD. 56 Public Comments The community submitted 197 public comments to the City, expressing their preferences, needs and values. ●3 supported the proposed development; ●194 asked that Site Plan #22047 be denied. The community has expressed its needs and values directly in 197 public comments submitted regarding #22047. 194 requested denial of the application. 3 were in support. Common needs and values offered by the community in the public comment included: ●compliance with the BMC and terms of the PUD ●protecting the tranquility of the adjacent open space; ●safety concerns caused by excess demand for on street parking; ●ensuring peaceful enjoyment of neighborhood residences; ●protecting the rural/agricultural neighborhood feel. Therefore, enforcing (rather than ignoring) the terms of the PUD, as vetted, amended, approved, and ordered by the City Commission and as required under the BMC, would reflect the community’s needs and values associated with this residential area, including its tranquil open spaces used for quiet recreation by City residents. 10. Applicant’s Obligation of Compliance A video series exploring the Sundance Springs Planned Urban Development (PUD)  in Bozeman, Montana Here, we discuss the applicant’s voluntary acceptance of the PUD’s terms, failure to meet his obligation to demonstrate compliance with the BMC, and the City’s associated complicity. In brief: Much of the acrimony surrounding Site Plan #22047 arises because the Applicant willfully violates the terms of the PUD, terms to which the applicant voluntary agreed when purchasing the property. In the end, the applicant fails to demonstrate compliance with all applicable standards and requirements, as required under the BMC. Consequently, the City violated the BMC by approving the deficient Site Plan. 58 Constructive Acceptance of PUD Requirements Sundance Springs Covenants and Development Guidelines The City’s approval of Site Plan #22047 violated the BMC because: ●the Approved Final Plan is missing, ●requirements of the PUD were not enforced, and ●requirements for departures were not met by the applicant. Ultimately, however, the contention around #22047, arises primarily from the applicant’s decision to knowingly create and submit for approval a Site Plan that violates of dozens of the PUD’s Covenants and Development Guidelines. 59 Voluntary Compliance with Voluntary Agreements Applicant Signature The City has discussed with the applicant the option of altering the application to comply with the terms of Covenants and Development Guidelines – terms to which the applicant voluntarily agreed when purchasing the property. The applicant had declined to comply voluntarily with his agreements. Instead, he instructed the City to review the application knowing it was non- compliant with PUD’s Covenants and Development Guidelines, and the 1992 code enforced therein. 60 Demonstration of Compliance BMC 38.100.080.A states: “It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations.” By developing a Site Plan that he knew did not comply with the Commission-approved Covenants and Development Guidelines contained in Z-95125, the applicant has failed to meet his obligation to demonstrate compliance with the BMC and PUD. The City has been complicit by: ●agreeing to review application #22047 in absence of PUD’s Approved Final Plan; ●forsaking due diligence in determining surviving requirements of the PUD; ●failing to enforce surviving PUD requirements; ●failing to adhere to the BMC’s required protocol for approving departures; ●misrepresenting its customs and practices; ●elevating its preferences above compliance with the BMC. 11. Request to Overturn the Approval of Site Plan 22047 Grievance in response to Approval of Site Plan #22047 62 Our Request Primary Roof Form Secondary Roof Use Primary Roof Form to enclose upper levels Forms “Furthermore, the intent is to establish minimum standards to ensure that the type of building constructed is comparable to and blends with the eclectic styles of housing found in the surrounding developments and that the type of building avoids the appearance of ‘Commercial Development.’” - Covenants and Development Guidelines Sundance Springs PUD Based on the facts provided herein, the appellants ask the City Commission to: ●reaffirm and enforce the terms of the PUD’s Master Plan and Development Guidelines, which were vetted, amended, approved, and ordered by the City Commission; ●disapprove Site Plan #22047, which violates the terms of the BMC and PUD in numerous ways, ●instruct the Community Development staff to: ● comply with BMC 38.100.05, BMC 38.100.080, BMC 38.430.040.A.3.d, and BMC 38.430.080.A, and ●enforce the terms of the PUD’s Master Plan and Development Guidelines when approving future Site Plans under the Sundance Springs PUD. Detail: Grounds and allegations for the appeal of approval of Site Plan #22047 The June 28, 2023 Staff Report and Findings of Fact (SRFoF) that form the basis of approval for Site Plan #22047 concludes that Site Plan #22047 has met the requirements of Chapter 38 BMC, including those of the Sundance Springs PUD. This approval was in error for multiple reasons. First, the City lacked the requisite information to render a decision. Indeed, City lost the Approved Final Plan for the Sundance Springs PUD, and without that plan, the City could not know the requirements of the PUD, nor approve the application without violating the BMC. Further, the applicant could not meet its obligation1 to demonstrate compliance with the Approved Final Plan. This alone is sufficient to reverse the City’s approval. Second, the City’s attempt to compile the remaining record of PUD requirements was flawed. The City approved the application based on two sets of requirements: 1) PUD’s Conditions of Preliminary Approval and 2) the current B-1 Standard. The City considered neither the partial set of requirements from the PUD’s Final Master Plan (surviving within folder Z-9812) nor the Preliminary Development Guidelines (surviving within Z-95125). Site Plan #22047 violates many of these requirements. Again, this action alone is sufficient to reverse the City’s approval. Third, the City’s approval of departures from Block Frontage Standards was non-complaint with the BMC. Specifically, the applicant failed to successfully demonstrate to the review authority how the proposed departure meets the purpose(s) of the standard and other applicable departure criteria that applies to the specific standard, pursuant to BMC 38.250.060.E. Again, this action alone requires disapproval. Forth, the City’s insistence that modern parking reductions can be applied to the Sundance Springs Neighborhood Services Lots violates the requirements of the PUD, fails to protect public safety as required under the BMC, and conflicts with the intent of an order of 1 BMC 38.100.080: “It is the obligation of the person proposing the development to demonstrate compliance with all applicable standards and regulations.” the City Commission regarding on-street parking on the narrow streets of the Sundance Springs Subdivision. Yet again, this condition alone is sufficient for disapproval. In the end, the City’s approval of #22047 was predicated on the following: 1) omissions of or failure to account for, many issues raised in public comments provided by the appellants, their attorney, and other members of the public, and 2) multiple factual errors regarding the requirements of Chapter 38 BMC, including the Sundance Springs PUD. Because of these problems, Site Plan # 22047 was approved in error.2 A. Omissions The City’s decision omitted critical information, and as such, cannot be affirmed. 1.The SRFoF fails consider the binding “Master Plan” and “Development Guidelines,” and in doing so, failed to analyze development requirements. When the Sundance Springs PUD was developed in the mid 1990s, it was done so as a “Phased PUD Based Only on Master Plan and Development Guidelines” (pursuant to 1992 BMC 18.54.080.A.3). The submittal requirements for such a PUD (1992 BMC 18.54.080.D) mandated such a PUD be comprised of two components – a “Master Plan” and “Development Guidelines” – which specify binding development requirements under the PUD (pursuant to 1992 BMC 18.54.080.C). The preliminary and final plans for the PUD, submitted to the city in the 1990’s, were required to have a “Master Plan.” The table of contents of Z-951253 lists a section entitled “Master Plan Objectives,” which was approved by the City Commission. However, the “Master Plan Objectives” have been removed from Z-95125.4 2 The public record and comments, which are incorporated herein by reference, demonstrate these omissions and errors. 3 Folder Z-95125 contains what remains of the Approved Preliminary Plan, which was vetted, amended, approved, and ordered by the City Commission. 4 The table of contents of P-9539 also makes reference to the same “Master Plan Objectives,” which have also been removed from that document. In the surviving folder of the final PUD (Z-9812), however, there is a map entitled “Sundance Springs Master Plan” This “Master Plan” was part of final PUD as evidenced by: The Master Plan provided the basis for a Market Study ordered by the City Commission as a condition of approval for Z-95125. That Market Study also describes the “Proposed Buildings” under the Master Plan.5 The same Master Plan is contained in document 20-298, the folder for the conceptual review of #22047, which was compiled when the Final PUD was not missing. The conceptual review also references requirements of the PUD’s Master Plan. The SRFoF does not acknowledge that a “Master Plan” was required under the PUD and approved by the City Commission. Nor does the SRFoF attempt to consider the best available evidence regarding the requirements of the “Master Plan.” Therefore, even if reconstruction of PUD requirements were allowed under the BMC, the City would be failing to meet its obligation under BMC 38.430.040.A.3.d by ignoring the fact that the PUD required a Master Plan and a copy of the Master Plan survives. 2.The SRFoF ignores the market study requirement and associate order of the City Commission. Relatedly, the SRFoF failed to consider the market study and associated order of the City Commission. As part of the PUD approval process, The City Commission ordered that a market study for the Commercial Lots show that “50% of the business” for the “proposed uses within the neighborhood service area will be supported by area residents.” If the study could not demonstrate the same, the City Commission ordered residential development on the Commercial Lots.6 The Market Study is found in the surviving folder for the Final PUD (Z-9812). The effect of the ordered Market Study was to require the Final PUD to propose specific buildings and uses on the Commercial Lots; 5 The market study assumed the Commercial Lot #2 would contain a single, one story, 5000 sq ft building with retail use, as mandated by the surviving Master Plan. 6 The requirements of the Market Study were raised in comments provided by R. Farris-Olsen on June 12, 2023. the Market Study ordered by the Commission could not be fulfilled in the absence of proposed buildings and uses. The PUD’s proposed uses are shown on the PUD’s “Master Plan” for the Commercial Lots, and the “Master Plan” represents PUD requirements for building sizes, locations, leasable floor area, etc. (BMC 38.430.040.A.3.d). A copy of the Master Plan is included in market study, and the associated uses serve as the assumptions for the study (e.g., “Proposed Buildings” described by the Market Study). The Market Study also includes a copy of the B-1 Neighborhood Services District Zoning Code, which includes the requirement that all buildings on the Commercial Lots be less than 5000 square feet of gross floor area. The Market Study describes the Master Plan’s “Proposed Buildings” on Lot #2 as a “one story convenience store complete with auto fueling capabilities. In addition to the auto fuel, it is anticipated that the store will carry limited grocery items, wine/beer, beverages, and similar local convenience items which should reduce trip generation to areas outside of the service area.” The Market Study does “not anticipate that there will be … stores so unique as to generate traffic or use from outside the service area.” Therefore, in order to assure that 50% of the business comes from the service area, as ordered by the City Commission, uses on the Commercial Lots must be limited in size (buildings of less than 5000 sq ft), must reduce trip generation out of the service area, and must not generate traffic into the service area. These requirements are reflected on the Master Plan. In contrast, the City approved Site Plan #22047 which proposes 12,000 sq feet of Commercial space, 6000 sq feet of full-height basement space, and 3000 sq feet of outdoor business-use patio overlooking Mt Ellis. This violates all of the requirements of the Master Plan while invalidating the Market Study’s assumed conditions on the lots. Given that Site Plan #22047 invalidates the Market Study’s conclusion that 50% of the business will come from the intended service area, the Commission has ordered that the commercial lots must be divided into six residential lots. So the effect of the Commission’s conditions of approval for Z- 95125 is that one of two scenarios are allowed on the Commercial Lot #2: commercial development that adheres to the uses proposed by the Master Plan7, which form the basis of the Market Study – in other words, a single 5000 sq ft convenience store on Commercial Lot #2, or; residential development on both Commercial Lots in the Sundance Spring Subdivision. Compliance with the building locations and uses outlined on the Master Plan are required under BMC 38.430.040.A.3.d and by the Conditions of Approval for Z-95125, as ordered by the City Commission. 3.The City did not appreciate that the Development Guidelines are mandatory, and not simply private agreements between parties. The City also failed to consider the Development Guidelines that were part of the surviving record of the PUD. This document, entitled “Covenants and Development Guidelines” is found in Tab #8 of the preliminary plan (Z-98125), and serves two purposes. The document was vetted, amended, approved, and ordered by the City Commission as the PUD’s required “Development Guidelines” in January 19968. It was also executed and the Sundance Springs Covenants by the original applicant for the PUD in March 1998. Therefore the terms of the document are enforced in two ways: 1) as the binding terms of the PUD, and 2) also as private agreements among the lot owners. The City failed to appreciate the binding nature of the development guidelines, and resultingly, failed to evaluate the requirements articulated therein. As such, the approval was in error. As part and parcel of this omission, the City also failed to acknowledge or consider that Site Plan #22047 violates the architectural guidelines and other aspects of the PUD’s development 7 BMC 38.430.040.A.3.d requires compliance with the PUD’s Master Plan even in the absence of a Market Study. However, the requirement for compliance with the Market Study is derived from the Commission’s conditions of approval of Z-95125, while compliance with the Mater Plan is based on the BMC. 8 Although the Covenants share the same text as the Development Guidelines, the Covenants are a separate legal document from the PUD. The PUD’s Development Guidelines must be enforced even if the private Covenants need not be. guidelines. As documented in public comment9, the proposal violates a number of the PUD’s Development Guidelines that were vetted, modified, approved, and ordered as part of Z-98125 by the City Commission. The violations are primarily in Articles VIII (Building and Site Development), IX (Buildings Guidelines), and X (Site Development and Landscape Design) of the Development Guidelines, and inadequate setbacks, inadequate parking, oversized buildings, disallowed basements, and proposed improvements designed to support uses requiring future approvals (outdoor uses on large patios). In light of these omissions, the City’s approval of Site Plan #22047 was not authorized. 4.The City did not consider the applicable 1992 BMC during Site Plan review. The City again erred by failing to account for the 1992 zoning requirement. The PUD’s Development Guidelines, as approved by the City Commission, established the 1992-era zoning as the default basis for development under the PUD. The preliminary plan of the PUD approved by the City Commission (Z-95125) states that the Covenants and Development Guidelines are to be applied “beyond the minimum requirements of the Bozeman Zoning Code which exists at the date of execution of this document.” Z-95125 was approved in January of 1996. And, even if the Development Guidelines are ignored and only a subset of the Covenants are applicable,10 those “applicable” covenants operate within the context of their legal declaration, which states: “The covenants detail how the Neighborhood Services Property within the Sundance Springs Subdivision are to be developed and maintained beyond the minimum requirements of the Bozeman Zoning Code which exists at the date of execution of this document.” 9 See public comment submitted by Rob Farris-Olsen on December 13, 2022, and June 12, 2023. 10 Appellants have demonstrated that all of the Covenants are applicable because the same text is used as binding Development Guidelines under the PUD. The City has not acknowledged or refuted the same, but is resolute that only those listed in Exhibit B to Covenants are the “applicable Covenants.” The Covenants were executed on March 4, 1998. Therefore, any development requirements not specifically described by the “applicable” Covenants (as defined by the City) must comply with requirements of the 1992-era zoning. 5.The City’s assertion that it could not enforce the Covenants and Development Guidelines was incorrect. The City’s refusal to enforce the Development Guidelines and its failure to consider its past enforcement of the Covenants was another error11. In its letter to the applicant, the City Attorney’s office stated that it is the City’s custom to enforce Covenants only when they were relied upon for approval of land development. The City’s records (Z- 95125, Tab 6) show that the City relied on all of the Covenants to approve the preliminary plan for the PUD. The City’s records also show that the City has enforced the Covenants and Development Guidelines as legal requirements for development under the PUD (Z- 040148). These facts a well-documented in public comment submitted by R. Farris-Olsen on June 12, 2023. The City’s failure to enforce these codes now, or acknowledge its past custom and policy, was incorrect. 6.The failure to consider the lack of on-street parking renders the City’s decision to approve the Site Plan ineffective. The City’s analysis also fails to account for the dearth of parking, and that by granting a departure for parking, will create a deficit of more than 100 parking spaces when development of both Sundance Springs Commercial Lots is complete. The approved Site Plan has a parking demand that is 24 spaces in excess of the parking provided. As a 1.31 acre development, this yields an 18 space excess parking demand per acre of development. When such parking reductions are applied across Neighborhood Services Lots (which together amount to 6.23 acres), the total parking demand for adjacent residential streets will exceed available on-site parking by more than 100 spaces. (The deficit of 18 spaces per acre times 6.23 acres is a total parking deficit of 114 spaces.) 11 Again, the subdivision’s Covenants and the PUD’s Development Guideline are two separate sets of legal obligations, which contain the same development requirements. Permitting allowing parking reductions that will ultimate yield parking demands that is 100 spaces in excess of available parking in a location where the City Commission has prohibited on-street parking in the name of public safety (interference with emergency vehicle access on the 24-foot-wide residential streets) violates the intent of the City Commission order and the City’s obligation to protect public safety under BMC 38.100.050. The proposed solution of posting streets as “no parking” does little except create a perpetual enforcement issue for the City by creating an island of “no parking” signs to be enforced, but which are more than a mile from any other area in need of parking enforcement.12 Allowing parking reductions that will create a parking deficit of more than 100 spaces creates an marked incentive for patrons to park illegally. In this location, where illegal parking will block emergency vehicle access, the approval of Site Plan #22047 fails to consider public safety. Protection of public safety was the intent of the Commission’s order prohibiting on-street parking and a requirement of the UDC (BMC 38.100.050.A). B. Factual Errors In addition to the omissions, the SRFoF is replete with factual inaccuracies, rendering the approval erroneous. When these errors are considered, the City should not have approved Site Plan #22047. At its most basic level, the City erred by assuming that the Conditions of Preliminary Approval were the only binding requirements of the PUD and failed to consider the PUD’s Master Plan and Development Guidelines. The Master Plan and Development Guidelines – which, again, were vetted, amended, approved, and ordered by the City Commission – are binding on the City and the applicant. 1.The covenants are not simply private agreements between subdivision lot owners, the City is a party to all of them – not just those listed in Exhibit B. This error is compounded by the City’s determination that the Sundance Springs Covenants represent only “private agreements” 12 Also, the SRFoF fails to identify Good Medicine Way and White Eagle Circle as streets within a 2-minute walk of the site where on-street parking will be problematic. In proposing to post Ellis View Loop as no-parking, guests of residents will not be able to park on the street. A resident-only parking district similar to that surrounding Montana State University will be required on Ellis View Loop if SP #22047 is approved. among the subdivision lot owners. This determination is wrong. Condition of Approval 33a and Exhibit B of the Covenants make clear that the City is a party to the entirety of the Covenants,13 and not simply Exhibit B. Conditions of Approval 33a states: “The Covenants shall be amended to indicate that the City of Bozeman is a party to the Covenants…” The Commission goes on to order that that some of the covenants cannot be modified without City approval, but nowhere does the City Commission state “The City is a party to those covenants that are modified by this Order” or any other such language that suggests that the City is a party to only some of the covenants. Similarly, Exhibit B is entitled “Covenants Amendments Requiring Consent by the City of Bozeman” (emphasis added). Exhibit B states, “The City of Bozeman is a party to the Covenants…” and then goes on to explain that the subsequently listed Articles require consent of the city to be amended. The idea that this Exhibit limits the number of covenants to which the City is a party appears to be a mythical belief that the City simply will not reassess by carefully considering the language of the Conditions of Approval Despite numerous requests during public comment, the SRFoF does not reference language from the PUD, the Conditions of Approval, nor the Covenants and Development Guidelines that shows that the Commission intended to limit the number of Covenants to which the City is a party.14 Accordingly, the City is bound by the Covenants and Development Guidelines, and its approval of Site Plan 13 And even if the City were not a party to all of the Covenants, they are still bound by the covenants as the “Development Guidelines”. While Development Guidelines were required as part of a PUD application in the mid 1990s (1992 BMC 18.54.080.D.2), covenants were not required to be included in the Development Guidelines. However, any covenants included in a phased PUD application were explicitly considered a component of the binding Development Guidelines (1992 BMC 18.54.080.D.2.h). If the text of Sundance Springs covenants were not intended to represent the binding Development Guidelines, they could have been omitted from the PUD application. 14 Until now, the City’s custom and practice has been to enforce the PUD’s Covenants as legally binding development requirements in the Sundance Springs PUD (see public comment submitted by Rob Farris-Olsen on June 12, 2023). # 22047 – which contains significant violations of the Covenants and Development Guidelines – was in error.15 2.Site Plan # 22047 should have been assessed against the 1992-era code Additionally, the approval was in error because it incorrectly assumes that the BMC allows Site Plan #22047 to be assessed against only the current B-1 Neighborhood Business District. The Development Guidelines of the PUD, in force under current BMC 38.430.040.A.3.d, mandates that development requirements referencing the “B-1 Neighborhood Services District” be assessed against that 1992-era code.16 Site Plan #22047 violates the following aspects of the 1992 B-1 District: Each proposed buildings exceeds the 5000 sq ft gross floor area cap (1992 BMC 18.28.020). Outdoor uses are allowed only by approval of the City (1992 BMC 18.28.020) yet improvements (3000 sq ft patios) to support outdoor uses are included in the Site Plan.17 SP #22047 violates the setbacks of the 1992 B-1 District (1992 BMC 18.28.050). SP #22047 violates the parking requirements of the 1992 B-1 District (1992 BMC 18.28.020.C). Under the 1992 B-1 district, any and every use approved as part of a PUD requires a Conditional User Permit at the time the use is proposed (1992 BMC 18.28.020.B).18 15 In the Staff Report on Z-95125 (Page 24), the City Commission received assurances from Staff that the PUD’s Covenants and Development Guidelines (found under Tab 8 of Z-95125) would be enforced during Site Plan Review. The public and City Commission received similar assurances during public hearings (see public comment submitted by Rob Farris-Olsen on June 12, 2023). 16 According to current BMC 38.430.040.A.3.d, the requirements of the PUD are in force under the current BMC. The introduction to PUD’s Development Guidelines, as approved by the City Commission (Tab 8, Z-95125), clearly state that the development code applicable under the PUD is the 1992-era zoning. 17 Permitting the construction of 3000 sq ft of patio space is not appropriate until the applicant has identified and applied for approval of outdoor uses as required under the PUD. 18 The requirement of a Conditional User Permit for and and every use specified in a PUD is set forth in the 1992 B-1 district enforced by the PUD. The effect of assessing #22047 against only the current B-1 district is to impart “major changes” in the terms of the PUD without required due process (violating BMC 38.430.040.A.3.d.2) and also to impart changes (such as changes to parking requirements) that are not included in the list of allowable “minor” and “major changes” found in BMC 38.430.040.A.3.d. These requirements were brought to the applicant’s and the City’s attention in 2020, when City Planner Susanna Montana had access to the (now missing) Approved Final Plan and complied the 2020 Concept Review for SP #22047. Based her review of the Approved Final Plan, she concluded: Page 1: the applicable zoning is “Neighborhood Service District pursuant to the 1998 Sundance Springs Planned Unit Development.” Page 4, Point 5: “The 1998 Sundance Springs PUD designated this property as B-1, Neighborhood Service District, pursuant to the 1992 zoning ordinance.19 Accordingly, by applying the wrong zoning standards, the City’s approval of Site Plan #22047 was in error. 3.The City’s approval of block frontage requests was improper. Furthermore, the City’s approval of the block frontage request was not allowed under the BMC..20 The BMC requires that the applicant demonstrate that the proposed departure meets both the purpose of the standard and the specific approval criteria for the standard.21 This requirement is emphasized in the Staff Report for Z-95125. See public comment submitted by Rob Farris-Olsen on June 12, 2023. 19 See public comments submitted by R Farris-Olsen on Dec 13, 2022. 20 See pages 12-15 of public comments submitted by R Farris-Olsen on Dec 13, 2022. 21 BMC 38.250.060.E requires that “[p]roject applicants must successfully demonstrate to the review authority how the proposed departure meets the purpose(s) of the standard and other applicable departure criteria that applies to the specific standard.” Quite clearly, this departure request also fails to meet the requirements of BMC 38.250.060.E. See pages 12-15 of public comments submitted by R Farris-Olsen on Dec 13, 2022. A purpose of the Block Frontage Standards is to create a comfortable walking environment. The application #22047 violates parking location requirements (BMC 38.510.030.C) of the Block Frontage Standards by locating parking along 100% of the walkable street frontage to the east, along ~90% of the walkable trail frontage to the north, and in front of the building along the walkable primary frontage to the south. The departure cannot be granted because the Site Plan places parking lots along all existing walkable frontages, and thus fails to create a comfortable walking environment on any existing frontage. The specific departure criterion requires a “trade-off between parking location and the amount and quality of storefront integration.” The trade-off described by the applicant in the departure narrative is for open space and riparian buffer southeast of the buildings, to promote a “better experience for the intended users.” The primary “intended users” to the southeast of the proposed buildings are business patrons on the proposed patios. Departures designed to create required open spaces and riparian buffers are not allowed. Departures cannot be approved to improve the experience of business patrons on outdoor patios. The departure cannot be approved because increased storefront integration has not been demonstrated by the applicant. Another purpose of the Block Frontage Standards is to “emphasize compatible development.” The specific departure criterion requires the departure to be “compatible with the character of the area.” Yet, the applicant requests a departure because the building design is incompatible with the area. In other words, because the applicant designed buildings that are incompatible with the neighborhood, the applicant has gained a departure from standards that have the explicit purpose of “an emphasis on compatible development.” In fact, the proposed building locations amplify incompatibility with the surrounding neighborhood by moving incompatible buildings off the adjacent arterial street, closer to nearby residences, and fronting them on tranquil open space. Fundamentally, the Block Frontage Standards require that buildings be sited to address a lot’s frontages. Here, instead, the applicant adjusts the frontages to address his preferred building sites. Specifically, the Site Plan would degrade all existing frontages by lining them with parking while requiring creation of a new frontage for the east building to front. Brazenly, the applicant proposes to create the new frontage by building a trail on property owned and controlled by the adjacent HOA, without permission from the HOA22. Without such permission, the east building will never front a trail, yet existing frontages are degraded with parking areas. In essence, the entire departure is predicated on the purported “need” to move buildings, designed by the applicant to be incompatible with the neighborhood, off an arterial street and closer to neighboring residences. Instead, the BMC and PUD require that the applicant to design buildings that are compatible with the neighborhood and are sited in accordance with the Block Frontage Standards. For all of the reasons stated above, approving the requested departure undermines the the primary purposes of Block Frontage Standards – an emphasis on compatible development and creating a comfortable walking environment. 4.The City’s reliance on the applicants’ ability to control common space was in error. The City’s decision is also based on a misinterpretation of the covenants, or Development Guidelines, control over common space. The Applicant and City misread the language in the covenants, which states state “The Sundance Springs Neighborhood Services Owners Association (NSOA) shall control and maintain the common open space adjacent to the commercial lots and Goldenstein Road and South 3rd Avenue and right-of-way of Little Horse Drive” (emphasis added). In this case the “and” means any open space which is simultaneously adjacent to the commercial lots and the named roads. Several lines of evidence undercut the applicant’s contrary interpretation of the Covenants. The proposed trail extensions are on land that: has been controlled and maintained by the residential HOA for more than 25 years; 22 In public comment, the President of the Sundance Springs HOA has stated that approval of the trail on HOA property is unlikely. is contained within the residential Phase 1A of the subdivision (the residential phase) while the commercial lots are within Phase 1B; is under the control of the Sundance Springs Residential HOA per the Residential Covenants; most importantly, is owned by the Sundance Springs Residential HOA, as indicated in public records. Further, in the past, the applicant has acknowledged the HOA’s control of the land by approaching the HOA board asking for permission to build the trail extension. Notably, the applicant attempts to rely on the terms of the Covenants to claim control over land owned by someone else, yet the applicant ignores a remarkable array of the terms of the Commercial Covenant that provide requirements he found inconvenient and failed to follow. The applicant treats the Covenants as a collection of requirements that he can enforce or ignore at his convenience. The City essentially follows this same logic, and by doing so wrongly approved Site Plan #22047. 5.The City’s assumption that the applicant could obtain approval from the NSOA for development was wrong. Finally, the City erred by approving a Site Plan that can never be developed. The Covenants and Development Guidelines require that the Neighborhood Services Owners Association (NSOA), through the Building and Landscape Review Committee, approve all developments prior to construction. This is an impossibility, here, because the NSOA was dissolved by the State of Montana in 2003 and cannot be reconstituted under Montana State Law. Mont. Earth Res. P'ship v. N. Blaine Estates, 1998 MT 254, ¶ 31 291 Mont. 216, 967 P.2d 376 This means that the applicant cannot get permission for improvements on any of the land that actually is controlled by the NSOA, because the NSOA does not exist. Owner Property Address Mailing Address Tax Records Verified Notes Geocode (Y/N) Jan 17 2022 Sundance Springs Residential Owners Assoc Inc PO Box 933 Bozeman, MT 59771 N (non-valued property)Adjoiner Contiguous 06-0798-25-1-18-01-6500 City of Bozeman Ellis View Loop PO Box 1230 Bozeman, MT 59771 N (non-valued property)Adjoiner Not Contiguous 06-0798-25-1-07-12-6500 Ryan Lafoley S 3rd Ave 206 Ridge Trl, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-20-01-0000 Shelley & Gordon Vance N/A 3008 Macnab St, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-01-20-0000 Lisa & Henry Miklush 3775 Ellis View Loop 3775 Ellis View Loop, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-08-12-0000 Ellis View Estates Sub Homeowners Assoc Ellis View Loop 1627 W Main St #370, Bozeman MT 59715 N (non-valued property)Adjoiner Not Contiguous 06-0798-25-1-07-01-6500 Geoffrey Poole 3772 Ellis View Loop 3772 Ellis View Loop, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-07-10-0000 Catherine Zimmer 4405 White Eagle Cir.4405 White Eagle Cir, Bozeman MT 59715 Y Adjoiner Not Contiguous 06-0798-25-1-18-51-0000 SITE NAME: Sundance Springs Phase 1B Comm Lot 2 LEGAL DESCRIPTION: Sundance Springs Sub Ph 1B, S25, T02 S, R05 E, Acres 1.31, Comm Lot 2 Plat J-257 OWNER: 406 Coal Blowers, LLC N1 Noticing Procedure