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City Commisson Findings of Fact and Order (FOF) Staff Report for the
Aaker Phase 1 Major Subdivision Preliminary Plat; Application No.
22311
Public Meeting Dates:
Planning Board meeting was held on Monday, July 17, 2023 at 6:00 pm.
City Commission meeting was held Tuesday, August 15, 2023 at 6:00 pm.
All meetings take place in the Commission meeting room at City Hall, 212 N. Rouse Avenue,
Bozeman, MT. Electronic access to the meeting may be available as outlined on the published
agenda of the meeting.
Development Review Committee (DRC) Recommendation: The application conforms to
standards and is sufficient for approval with conditions and code provisions.
The Community Development Board, acting as the Planning Board, reviewed and considered
this application at their July 17, 2023 meeting. By a 5 to 0 vote, the Board unanimously
recommended approval of the Aaker Phase 1 Major Subdivision Preliminary Plat with staff-
recommended conditions and applicable code provisions.
July 17, 2023, Planning Board Recommended Motion:
“Having reviewed and considered the application materials, public comment, staff report,
and all the information presented, I hereby adopt the findings presented in the staff report
for application 22311 and move for the Community Development Board, in its capacity as
the Planning Board, to recommend approval of the Aaker Phase 1 Major Subdivision
Preliminary Plat with conditions and subject to all applicable code provisions.”
The City Commission reviewed and considered this application at their August 15, 2023, public
meeting. By a vote of 4 to 0, the Commission unanimously approved of the Aaker Phase 1 Major
Subdivision Preliminary Plat with staff-recommended conditions and applicable code provisions
and approved the two subdivision variance requests detailed in Section 2 of the staff report.
The link to the video of this meeting can be found at the highlighted text.
There were some suggestions by Commissioners, the Mayor and Deputy Mayor to the Applicant
when considering the preparation of the Final Plat submittal; they included:
• Preserve as much of the wetlands and the mature trees thereof as possible;
• Since the land has been in agricultural use for 100 years, consider incorporating community
gardens into the development to take advantage of that good soil;
• Design the project as a holistic neighborhood with housing and neighborhood-serving
commercial activity to make the neighborhood walkable;
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 2 of 41
• Show sensitivity to the wetlands when developing the project and “work with what nature
has given us”;
• Take advantage of the affordable housing incentives that the City offers and provide a
mixture of affordable housing types;
• Investigate the option of qualifying for housing tax credits to provide affordable housing;
and
• Take direction from the historic farming use of the land when designing the buildings
within the project; give a “nod” to its historic past.
August 15, 2023, City Commission Motion:
“Having reviewed and considered the staff report, application materials, public comment,
Planning Board recommendation, and all the information presented, I hereby adopt the
findings presented in the staff report for application 22311 and move to approve the Aaker
Phase 1 Major Subdivision Preliminary Plat with conditions and subject to all applicable
code provisions and approve the two subdivision variance requests detailed in Section 2 of
the staff report.”
Project Description: A major subdivision Preliminary Plat application to divide a 95.41 acre
property into 11 lots consisting of 6 multi-household lots, 1 City park lot, 1 commercial lot, 2 open
space lots, and 1 restricted development lot. The property has two zoning designations: REMU,
Residential Emphasis Mixed Use, and B-2M, Community Business—Mixed. The restricted lot,
labeled Tract B, is zoned both REMU and B-2M. The 6 residential lots, 1 commercial lot, 2 open
space lots and the City park lot are zoned REMU and constitute the first phase of development of
this subdivision (“Phase 1”). The Tract B Restricted Lot would be developed at a later phase and
would require a subsequent subdivision application and approval prior to its development.
Project Location: The property is located at the northwest corner of the intersection of South
19th Avenue and Stucky Road, a tract of land located within portions of the southeast ¼ of
Section 14, Township 2 South, Range 5 East, PMM, City of Bozeman, Gallatin County, MT.
Staff Finding: The application conforms to standards and is sufficient for approval with
conditions and code provisions.
Recommended City Commission Finding of Fact and Order Motion:
Approve and authorize the Mayor to sign the Findings of Fact and Order for the Aaker
Phase 1 Major Subdivision Preliminary Plat to divide a 95.41 acre parcel zoned REMU
and B-2M into 7 buildable lots, 1 City park lot, 2 common open space lots, road rights-of-
way, and one 63.68 acre restricted lot, and approve the two subdivision variance requests
detailed in Section 2 of the staff report.
Report Date: August 22, 2023
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 3 of 41
Staff Contact: Susana Montana, Senior Planner
Simon Lindley, Project Engineer
Agenda Item Type: Consent (Quasi-judicial)
EXECUTIVE SUMMARY
This report is based on the application materials submitted and public comment received to date.
The application materials are available in the City’s Laserfiche archive and may be accessed
through the Community Development viewer as well. No public comments have been received
as of the writing of this report. Should written public comments be received they will be included
in the City’s Laserfiche archive and available to the public.
Unresolved Issues.
Condition No. 1 of the Preliminary Plat staff report states that approval of the Preliminary Plat is
contingent upon the Director of Community Development’s approval of the concurrent Aaker
REMU Master Site Plan (MSP), Application 22381. In REMU, Residential Emphasis Mixed Use
Districts, development of lands therein must be consistent with an adopted Master Site Plan per
BMC 38.310.060. B.1. The Community Development Board, acting as the Design Review Board,
reviewed the MSP on July 18, 2023 and, by a unanimous 6 to 0 vote, recommended approval of
the MSP to the Director of Community Development. On August 16, 2023, the Director signed
the MSP staff report approving the application. Condition No. 1 of this Preliminary Plat has been
met.
Project Summary
The Department of Community Development received a Preliminary Plat Application on
November 15, 2022 requesting to subdivide the 95.41 acre parcel (“Site”) into 7 buildable lots
(14.62 acres), 1 City park (8.76 acres), 2 common open space lots (0.52 acres total), road Rights-
of-way (7.82 acres) and 1 restricted development lot (63.68 acres). The Restricted Lot, Tract B,
would be reserved for future development in subsequent phases and would require a separate
subdivision application.
The Site has been used for grazing and irrigated crops. The Site is zoned both REMU and B-2M,
Community Business—Mixed Use Districts.
The Site will have access from the east from continuation of West Kagy Boulevard and Remington
Way. The Site will extend both South 23rd Avenue and South 25th Avenue from the north to the
new Kagy Blvd. extension within the Site. The southern border of the Site fronts on Stucky Road
and extensions from internal roads southward to Stucky Rd. would take place in later phases when
the Restricted Lot Tract B is developed.
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 4 of 41
The northern and western boundaries of this Site border a 21 acre, narrow band of unincorporated
farmland owned and operated by Montana State University (MSU) as part of their 474 acre
Bozeman Agricultural Research and Teaching Facility (BART).
On May 23, 2023 the Development Review Committee (DRC) found the application sufficient for
continued review and recommends the conditions and code provisions identified in this report. The
final decision for this Preliminary Plat must be made within 60 days of the application being
deemed complete; in this case, by August 21, 2023.
The subdivider requested two variances with this application: a variance to Section 38.400.010.A.1
Relation to Undeveloped Area; and a variance to Section 38.420.060.A Parkland Frontage. Please
refer to Section 2 of this report for details on these variance requests.
The City did not receive any public comment on the application as of the August 4th writing of
this report.
Alternatives
1. Approve the application with the recommended conditions;
2. Approve the application with modifications to the recommended conditions;
3. Deny the application based on findings of non-compliance with the applicable criteria
contained within the staff report; or
4. Continue the public meeting on the application, with specific direction to staff or the
subdivider to supply additional information or to address specific items.
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 5 of 41
TABLE OF CONTENTS
EXECUTIVE SUMMARY ............................................................................................................ 3
Unresolved Issues. .............................................................................................................. 3
Project Summary ................................................................................................................. 3
Alternatives ......................................................................................................................... 4
SECTION 1 – MAP SERIES .......................................................................................................... 6
SECTION 2 – REQUESTED VARIANCES ............................................................................... 10
SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL .......................................... 14
SECTION 4 – CODE PROVISIONS ........................................................................................... 14
SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS ............................................ 22
SECTION 6 – STAFF ANALYSIS and findings ......................................................................... 23
Applicable Subdivision Review Criteria, Section 38.240.150.B, BMC. .......................... 23
38.220.060 Documentation of compliance with adopted standards ................................. 25
SECTION 7 -- FINDINGS OF FACT AND ORDER AND APPEAL PROVISIONS…………35
APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY..................................... 38
APPENDIX B – DETAILED PROJECT DESCRIPTION .......................................................... 40
APPENDIX C – NOTICING AND PUBLIC COMMENT ......................................................... 40
APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF ................................. 40
FISCAL EFFECTS ....................................................................................................................... 40
ATTACHMENTS ......................................................................................................................... 41
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 6 of 41
SECTION 1 – MAP SERIES
Exhibit 1 – Zoning
50.40 acres
48.13 acres
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Exhibit 2 – Community Plan 2020 Future Land Use Designation: Community Commercial Mixed Use
Community Commercial Mixed Use
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Exhibit 3 – Preliminary Plat
Tract B restricted lot for
future development
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 9 of 41
Exhibit 4 – Phase 1’s 10 Lots (shown in red)
Exhibit 5: Phase 2’s Restricted “Tract B” Lot—the 11th Lot.
63.68 acres
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SECTION 2 – REQUESTED VARIANCES
The Applicant requested two subdivision variances with this application: a variance to Section
38.400.010.A.1 Relation to Undeveloped Area; and a variance to Section 38.420.060.A Parkland
Frontage.
1. Request 1 – Sec. 38.400.010.A.1, BMC. Relation to Undeveloped Area. The first
variance request is to eliminate the requirement to extend Remington Way to the western
property boundary. Section 38.400.010.A.1 states, “When a proposed development adjoins
undeveloped land, and access to the undeveloped land would reasonably pass through the
new development, streets and alleys within the proposed development must be arranged to
allow the suitable development of the adjoining undeveloped land. Streets and alleys within
the proposed development must be constructed to the boundary lines of the tract to be
developed, unless prevented by topography or other physical conditions. If the development
being reviewed is a subdivision, a required for an alteration of this standard must be
processed as a subdivision variance.”
The Applicant requested a variance to not extend Remington Way to the western extent of
the property stating “there IS critical watercourse and wetland presenting a major site
constraint. The general philosophy of the neighborhood is to protect the existing
ecosystems wherever possible. Requiring this extension across this significant watercourse
would fragment this critical watercourse/wetland habitat for limited positive benefit.
Furthermore, there is a significant permitting obstacle to get this roadway approved by the
Army Corps of Engineers because it would be challenging to demonstrate the need for this
local street when the adjacent property will have access to Kagy Boulevard (Principal
Arterial) approximately 600’ south of Remington Way. The intent of this code standard is
to ensure that adjacent properties have both adequate physical/legal access and to enhance
the overall connectivity of Bozeman. This is evident in the Bozeman Transportation Plan
and the planned future transportation network. The future transportation network shows
that there will be two collectors (Lincoln Road & South 27th Avenue), and a principal
arterial street (Kagy Boulevard) all serving the adjacent property. The extension of
Remington Way through the park does little to improve the overall connectivity of the
larger City network and is unnecessary. Furthermore, when looking at Remington Way as
a whole, it doesn’t extend much further to the east of our project site, so as a local street it
does little to enhance the overall east/west connectivity of the larger transportation system.
Finally, in this case, the site directly adjacent to the subject parcel is one large landowner
(State of Montana) with several existing access points, all of which are either collectors or
arterial streets. These factors make extending Remington Way unnecessary.”
City Response: The Applicant has provided information to address the variance criteria
outlined in BMC 38.250.080. Based on the information provided with this application, City
staff supports this variance request.
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 11 of 41
2. Request 2 – Sec. 38.420.060.A. Frontage. The second variance request is to eliminate the
overall park frontage requirement for the proposed Public Park A lot within the
subdivision. Section 38.420.060.A states, “Parkland, excluding linear trail corridors, must
have frontage along 100 percent of its perimeter on public or private streets or roads. The
City may consider and approve the installation of streets along less than 100 percent, but
not less than 50 percent, of the perimeter when:
1. Necessary due to topography, the presence of critical lands, or similar site constraints;
and/or
2. When the following elements are included:
a. When direct pedestrian access is provided to the perimeters without street
frontage;
b. When additional land area is provided in the park to accommodate the off-street
parking which would have otherwise been provided by the additional length of
perimeter streets and the additional land is developed as a parking area; or
c. When additional land area is provided in the park to accommodate the off-street
parking which would have been provided by the additional length of perimeter
streets and, in lieu of the constructed parking area, an equivalent dollar value
of non-parking improvements within the park are provided according to the
individual park plan.”
The Applicant requested a variance to not provide 100 percent frontage on the “Public Park
A” Lot stating “The overall park system for Aaker looks to capitalize and enhance the existing
wetlands in the area. This is evidenced in the way the park lots are drawn. All of the park lots
will encompass a portion of the critical wetland, which runs north/south across the whole
property in two locations. Couple this critical land and the extension of the street grid make it
impossible to meet the park frontage requirements set out in the code. If you look at the park
system as a whole, the park frontage goes up from 45% in phase 1 to over 75% when the
project is complete.
The Block 1 Lot 1 development area aims to create a community use that will enhance and
interact with the park. The specific design of this structure is unknown at this time but it should
be noted that proposed program aims to create a larger community benefit. This lot will be
privately maintained/operated but the hope is that it will function similarly to a park amenity.
Another goal of the Block 1 lot is that it be integrated into the park system as to feel as if it
were an extension of the park.
There is a chance that the parcel to the west of this, if ever developed, will be a park given the
dimensions of it and the extension of South 27th Avenue north. It appears that South 27th
(collector 90’ ROW) will bend around the existing farm building hugging closely to the Aaker
property boundary. This leaves little development potential for this sliver of land. It is likely
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 12 of 41
that this sliver of left over ground would be converted to park land. This would increase the
overall park frontage and likely get the park well above the 50% requirement.
Lastly, many of the Aaker parks could be considered Linear Parks, which may logically not be
subject to individual park frontage requirements.”
Exhibit 6: Parks Master Plan
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 13 of 41
Exhibit 7: Park landscape Sheet L001
City Response: The Applicant has provided information to address the variance criteria
outlined in BMC 38.250.080. Based on the information provided with this application, City
staff supports the variance request.
MSU Ag lands MSU Ag lands Phase 2 park
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 14 of 41
SECTION 3 – RECOMMENDED CONDITIONS OF APPROVAL
Please note that these conditions are in addition to any required code provisions identified in this
report. These conditions are specific to this project.
1. Approval of this Preliminary Plat is contingent upon Community Development Director
approval of the Aaker REMU Master Site Plan, Application 22381, pursuant to BMC
38.310.060.B.1; [this condition has been met by the August 16, 2023 approval of the
REMU Master Site Plan by the Director of Community Development].
2. Tract B is a Restricted Development Lot, and this must be so identified and labeled as such
on the Final Plat Map Sheet 2 and in the Conditions of Approval Sheet 4. This notifies all
parties that any future development will require approval of a subsequent subdivision
application prior to development of land within Tract B.
3. The subject property is located within the Meadow Creek Subdivision Signal and Sewer
payback district boundaries. If the subject property did not participate in the original cost
of construction of improvements the subject property will be accessed a payback charge
prior to Final Plat approval. Reference documents:
https://weblink.bozeman.net/WebLink/ElectronicFile.aspx?dbid=0&docid=181718&
https://weblink.bozeman.net/WebLink/ElectronicFile.aspx?dbid=0&docid=129437&
SECTION 4 – CODE PROVISIONS
1. Sec. 38.100.080 – Compliance with regulations required.
The Applicant is advised that unmet code provisions, or code provisions that are not
specifically listed as conditions of approval, does not, in any way, create a waiver or other
relaxation of the lawful requirements of the Bozeman Municipal Code or State law.
2. Sec. 38.610.090.A. Wetlands Preservation.
a. The Applicant shall assure that all reasonable effort has been made to limit direct
and indirect impacts to vegetation, faunal interspersion and connectivity, and
hydrological connectivity in the subdivision design and shall assure that any structures,
boardwalks, viewing platforms, or bridges which are constructed within wetlands will
have at least a two-foot space between the bottom chord of the structure and the wetland
surface elevation to limit shading impacts and allow wetland vegetation to persist; and
b. Porous material that does not disrupt the hydrological connectivity must be used
for fill within the wetlands where the pathways cross the wetlands. This exact design
must be coordinated with the City Parks Department and be part of the approved park
plan and could include a bridge that spans the width of the wetland, a boardwalk, or
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 15 of 41
other porous material that allows the integrity of the hydrological connectivity to be
maintained.
3. Sec. 38.220.020, 38.220.130 (A) and 38.610.050 – Streambed, Streambank, and/or
Wetland Permits
a. Prior to Final Plat approval, the Applicant must provide the Community Development
Department with a written statement of a wetland boundary determination from the
U.S. Army Corps of Engineering (USACE). If the wetlands are determined to be
USACE jurisdictional, an approved 404 permit for any placement of dredged or fill
material within the wetland must be submitted to the Community Development
Department prior to Final Plat approval; and
b. The Applicant must contact the Gallatin County Conservation District, Montana
Department of Environmental Quality, and U.S. Army Corps of Engineers regarding
the proposed project and any required permits (i.e., 310, 404, Turbidity exemption, etc.)
must be obtained by the Applicant. Approved stream and wetland permits shall be
provided to the Community Development Department and City Engineer prior to public
infrastructure approval for public infrastructure impacts to jurisdictional wetlands and
streams.
4. 38.220.100.C.3 and 6, 38.220.130 and 38.410.100, Watercourse Setbacks.
a.Watercourse setbacks must be shown and properly labeled on all Sheets of the
Final Plat; and
b. The Conditions of Approval Sheet shall notify prospective buyers of the regulations
relevant to wetlands preservation, maintenance of appropriate plantings, and
maintenance responsibilities of the property owners’ association (POA) for the
wetlands’ flora and nearby trails. The CC&R document shall outline the POA
maintenance responsibilities relative to the wetlands.
5. Sec. 38.220.070. The Conditions of Approval Sheet, at a minimum, shall contain the
following:
a. "This is a known area of high groundwater. No crawl spaces or basements may be
constructed unless a signed and stamped report from a licensed engineer is provided
to the Community Development Department which verifies that there is sufficient
separation between groundwater and crawl space or a basement. Sump pumps are
not allowed to be connected to the sanitary sewer system. Sump pumps are not
allowed to be connected to the drainage system. Water from sump pumps may not
be discharged into streets, such as into the curb and gutter, where they create a
safety hazard for pedestrians and vehicles.";
b. List all easements and recorded document numbers on the Conditions of Approval
Sheet;
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 16 of 41
c. "The maintenance of all subdivision stormwater facilities outside the public right-
of-way, including stormwater facilities within the park parcel, is the responsibility
of the subdivision property owners’ association (POA). The maintenance of all
private lot stormwater facilities is the responsibility of the private lot property
owners' association (POA)." ;
d. "The ownership and maintenance of the pipe which diverts the perennial or
intermittent and flood flows from the existing irrigation ditch to the west fork of
the Catron Creek on the north side of West Stucky Road is the responsibility of the
subdivision property owners' association (POA)." ; and
e. A 1-foot “No Access” easement shall be placed along the West Kagy Boulevard
frontage for the full length of the development with the exception of an access to
Block 1, Lot 1, and Block 3, Lots 3 and 4. This shall be shown and labeled on
Sheet 2 of the plat and this language shall be included in the Notes on the Condition
of Approval Sheet.
6. BMC 38.400.040.A.2 – Street Names. Street names must be reviewed and approved
by the County's geographic information systems and City Engineering Department prior to
Final Plat approval. The Applicant must submit written approval from both entities with
the Final Plat application.
7. Sec. 38.270.030.D - Completion of Improvements for Subdivisions. The Applicant has
requested concurrent construction of public infrastructure with development of the Site
infrastructure.
a. The property owner must enter into an improvements agreement to ensure the
installation of required infrastructure and other applicable improvements, to be
secured by any security or securities found in section 38.270.080;
b. Approval of the final engineering design, including location and grade, for any
public infrastructure must be obtained from the engineering department, and the
Montana Department of Environmental Quality when applicable, prior to issuance
of any building permit for the development;
c. For building permit and/or site plan applications seeking concurrent construction,
the developer must provide and maintain hazard and commercial general liability
insurance. Insurance policies must not be cancelled without at least 45 days prior
notice to the City. The commercial general liability policy must name the City as
an additional insured. The developer must furnish evidence, satisfactory to the City,
of all such policies and the effective dates thereof;
d. For building permit and/or site plan applications seeking concurrent construction,
the developer must execute a hold harmless and indemnification agreement
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indemnifying, defending and holding harmless the City, its employees, agents and
assigns from and against any and all liabilities, loss, claims, causes of action,
judgments and damages resulting from or arising out of the issuance of a building
permit under this section;
e. For building permit and/or site plan applications seeking concurrent construction,
subsequent to Preliminary Plat approval, a concurrent construction plan, addressing
all requirements of this section, must be submitted for review and approval of the
Community Development Director in consultation with the City Engineer and with
a recommendation from the development review committee; and
f. BMC 38.400.A - Where improvements are to be installed prior to Final Plat
approval, the Final Plat subdivision must contain a certificate of completion of
public improvements. The certificate must list all completed and accepted
improvements.
8. Sec. 38.400.070 – Street Lighting
The required public streetlight(s) must be included in a Special Improvement Lighting
District (SILD), in accordance with the City of Bozeman Lighting and Electrical
Specifications, prior to Final Plat approval.
9. Sec. 38.410.060. - Easements.
a. All Easements indicated below must be provided on City standard easements
templates. Drafts must be prepared for review and approval by the City. Signed
hard copies of the easements must be submitted to the City prior Final Plat approval.
The Applicant may contact the review engineer to receive standard templates: (i)
60 foot Public Street and Utility Easement, (ii) 20 foot Irrigation Easement, and
(iii) 30 foot Water and Sewer Pipeline Access Easement;
b. The Applicant must provide a ten foot utility easement (power, gas,
communication, etc.) along the developments’ property frontage; and
c. The Applicant must provide a public storm drainage easement for the proposed
storm sewer main and detention facility where located outside of public right-of-
way or dedicated parkland.
10. BMC 38.400.060.B.4 and 38.270.070.C – Streets.
a. The proposed project is located within one-half mile of the intersection of South
19th Avenue and Kagy Boulevard. The Aaker Phase 1 Subdivision Traffic Impact
Study indicates the subject intersection will not meet the City's level of service
standard at full buildout in the design year required per BMC 38.400.060.B.4. The
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 18 of 41
intersection of South 19th Avenue and Kagy Boulevard is scheduled for
improvement in the City's Capital Improvement Plan within the next three years.
Per BMC 38.270.070.C, the applicant must pay cash-in-lieu for the Aaker Phase 1
proportional share of the capital facility prior to Final Plat approval; and
b. A 1 foot "No Access" easement shall be placed along the West Kagy Boulevard
frontage for the full length of the development with the exception of an access to
Block 1 Lot 1 and Block 3, Lots 3 and 4. This shall be shown and labeled on Sheet
2 and this language shall be included in the notes on the Condition of Approval
Sheet.
11. Sec 38.410.070 Municipal Water, Sanitary Sewer and Storm Sewer Systems
The diversion pipe conveying West Fork Catron creek flows from Middle Creek Ditch
back to the original West Fork Catron Creek channel must be able to convey the 100-year
flood flows.
12. Sec. 38.410.130 - Water Adequacy and Water Rights.
a. Any useable water rights associated with the property, as determined by the City,
must be transferred to the City prior to Final Plat approval. Offsets for the transfer
will be available for future development of the property as defined in a water
adequacy agreement that must be filed at the Gallatin County Clerk & Recorder
along with the Final Plat;
b. Water adequacy code requirements will be deferred for all developable lots, and the
restricted lot, until future development or subdivision. No cash-in-lieu of water
rights will be paid for these lots. A note must be included on the Conditions of
Approval Sheet to notify future owners of the restriction pursuant to 38.410.130.C;
c. Cash-in-lieu of water right payment must be provided for any irrigation water being
supplied by the City’s municipal system for Kagy Boulevard and South 23rd
Avenue; and
d. Water Rights. Prior to Final Plat approval, the developer must demonstrate in
writing that approval has been received from all affected water rights holder,
including the Middle Creek Ditch Company and MSU, for the altered irrigation
facilities.
13. Sec. 38.550.070. - Landscaping of public lands.
a. All irrigation wells located within the boundaries of the development shall include
Montana DNRC certificates which shall be provided to the City with the Final Plat
submittal or included as a requirement in an improvements agreement if allowed.
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Ownership of any well and associated water right within the proposed park shall be
transferred to the City. The City must review and approve the wells 602 forms. All
wells shall include a meter or other device to determine consumption;
b. The landscaping and irrigation system must be included in the infrastructure
submittal for Kagy Blvd. The City’s Water Conservation Department must have
the opportunity to review and approve the design prior to construction; and
c. All irrigation wells located within the boundaries of the development shall include
Montana DNRC certificates which shall be provided to the City with the Final Plat
submittal or included as a requirement in an improvements agreement if allowed.
Ownership of any well and associated water right within the proposed park shall be
transferred to the City. The City must review and approve the wells 602 forms. All
wells shall include a meter or other device to determine consumption. The
landscaping and irrigation system must be included in the infrastructure submittal
for Kagy Blvd. The City’s Water Conservation Department must review and
approve the design prior to construction.
14. Sec. 38.410.060.D.1, Agricultural Water User Easements.
a. Prior to public infrastructure plan approval (if ditch modifications are proposed in
a public right-of-way) or Final Plat approval of the Aaker Phase 1 Major
Subdivision, the developer must demonstrate in writing that approval has been
received from all affected water rights holder, including the Middle Creek Ditch
Company and MSU, for the altered irrigation facilities;
b. BMC 38.410.060.D.1.a.2: Easements for agricultural water user facilities: A
minimum easement width of ten feet is required on each side of irrigation canals
and ditches. The easement for center ditch must extend ten feet on either side from
the edge of the facility, not the centerline;
c. An agricultural water user’s easement meeting the requirement of 38.410.060.D.1.
must be provided with the Phase 1 Final Plat and notice stating that the easements
are subject to the requirements of Section 70-17-112, MCA restricting interference
with canal or ditch easements and that irrigation works are subject to Section 85-7-
2211 and 85-7-2212, MCA regarding duties and liability, per 38.410.060.D.6. The
notice must include language to assure the duties are binding upon all successors in
interest and remain in effect until such time that the agricultural water user facility
is abandoned in accordance with the requirements of Montana Law or alternative
requirements are agreed to in writing by all applicable parties. The easements must
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be prepared as documents separate from a Final Plat but may be referenced on a
Final Plat; and
d. The developer's professional engineer must certify, prior to Final Plat approval, that
the water entering and exiting the realigned or relocated agricultural water user
facility is the same quality and amount of water that entered or exited the facility
prior to realignment or relocation.
15. Sec. 38.360.280. - Agricultural Water User Facilities:
a. With the Final Plat application submittal, written permission from the ditch owner
and any downstream water user must be provided to modify a Middle Creek Ditch
through the Site. Ditches must provide historical drainage;
b. The Applicant must provide written notice to all applicable water users and/or
agricultural water facility authorized representatives of the proposed development
per BMC 38.360.280.B.1;
c. The Applicant must demonstrate that the appropriate representative with Montana
State University has been notified of the proposed alterations to the irrigation
facility per 38.360.280;
d. Per BMC 38.410.060.D.4. - Stormwater discharges to an agricultural water user
facility, stormwater from the development must not be discharged to an agricultural
water user facility without written approval from the owner of the facility and
corresponding stormwater conveyance easement(s). Any required stormwater
conveyance easements must be provided with the Final Plat submittal;
e. BMC 38.410.070. The diversion pipe conveying West Fork Catron creek flows
from Middle Creek Ditch back to the original West Fork Catron Creek channel
must be able to convey the 100-year flood flows;
f. Pipe Maintenance. The Conditions of Approval Sheet shall include the following
text: "The ownership and maintenance of the pipe which diverts the perennial or
intermittent and flood flows from the existing irrigation ditch to the west fork of
the Catron Creek on the north side of West Stucky Road is the responsibility of
the subdivision property owners' association (POA)." ;
g. BMC 38.410.060 - Easements: An easement is needed to convey the perennial
stream flows and flood flows to the west fork of the Catron Creek. A signed hard
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copy of the easement must be submitted to the Community Development
Department prior to the Phase 1 Final Plat approval. Drafts must be prepared for
review and approval by the City. The easement language must allow for the
conveyance of perennial stream flows and flood flows to the west fork of the Catron
Creek. If the Applicant needs to request changes to the City standard easement
template, they must contact the development review engineer assigned to the
project. If any changes are made to the easement templates, the Applicant must
indicate in the document the specific changes when returned to the City and the
City legal team must approve any language which deviates from the City standard
template; and
h. The developer's professional engineer must certify, prior to Final Plat approval, that
the water entering and exiting the realigned or relocated agricultural water user
facility is the same quality and amount of water that entered or exited the facility
prior to realignment or relocation.
16. BMC 38.420.100.A.4 and 38.240.180.A.3. Parklands.
a. Applicant to provide deeds and easements for all parklands in Phase 1 at the time
of Final Plat;
b. Public park improvements must be included in the certificate of public
improvements on the Final Plat Certificates Sheet;
c. BMC 38.220.060.A.14.b. Park Irrigation. The parkland irrigation must be
entirely discrete and separate from any irrigation system that is privately owned
and maintained;
d. The Applicant must demonstrate that the well-used for irrigating parkland can do
so while fitting within any well or water use restrictions at whichever comes first:
either 30 days prior to the preconstruction meeting, or with an Improvements
Agreement proposal;
e. Prior to the City’s final acceptance of public park improvements, the Applicant
shall ensure that the City obtains free and clear ownership of any irrigation water
rights used to irrigate City parks or City streets;
f. If an exempt well is proposed to provide irrigation water supply for the
development, a written determination from DNRC shall be provided indicating that
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Preliminary Plat; Application 22311 Page 22 of 41
the proposed exempt water use is allowable under applicable state law governing
the use of exempt wells;
g. The Applicant must include this note on the conditions of approval sheet of the
Final Plat if parkland has not been fully accepted by the Parks Department prior to
Final Plat review: “Although an easement or parkland dedication is required at the
time of Final Plat, the Parks and Recreation Department does not assume
maintenance responsibility for parkland and improvements until the following have
been completed after Final Plat: 1) the constructed park meets requirements of
38.420.080 and the approved park master plan; 2) all conditions of approval for the
subdivision or park master plan are completed’ and 3) written acknowledgement of
final acceptance has been provided by the City”.;
h. The Applicant is to include this note on the Final Plat: “Private utilities are not
allowed within parkland unless otherwise approved by the Director of Parks and
Recreation.”; and
i. Final designs for bridges and any related revisions to the park improvements
package must be coordinated with the City Park Planner and included in the final
park plan submittal.
SECTION 5 – RECOMMENDATION AND FUTURE ACTIONS
The Development Review Committee (DRC) determined the application was sufficient for
continued review and recommended approval with conditions and code provisions on May 23,
2023.
The Community Development Board, acting as the Planning Board, met on Monday, July 17, 2023
and by a 6 to 0 unanimous vote, recommended approval of the Aaker Phase 1 Major Subdivision
Preliminary Plat with the staff-recommended conditions and code provisions.
The City Commission public meeting to consider approval of this application took place on
Tuesday, August 15, 2023 at 6:00 pm at 121 N Rouse in the City Commission chambers. Electronic
access to the meeting was available as outlined on the published agenda of the meeting. The link
to the video of this meeting can be found at the highlighted text.
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Preliminary Plat; Application 22311 Page 23 of 41
SECTION 6 – STAFF ANALYSIS AND FINDINGS
Analysis and resulting recommendations are based on the entirety of the application materials,
municipal codes, standards, plans, public comment, and all other materials available during the
review period. Collectively this information is the record of the review. The analysis in this report
is a summary of the completed review.
Applicable Subdivision Review Criteria, Section 38.240.150.B, BMC.
In considering applications for subdivision approval under this title, the advisory boards and City
Commission shall consider the following:
1) Compliance with the survey requirements of Part 4 of the Montana Subdivision and
Platting Act
The Preliminary Plat was prepared in accordance with the surveying and monumentation
requirements of the Montana Subdivision and Platting Act by a Professional Engineer registered
in the State of Montana. As noted in the code requirements, the Final Plat must comply with State
statute, Administrative Rules of Montana, and the Bozeman Municipal Code (BMC).
2) Compliance with the local subdivision regulations provided for in Part 5 of the Montana
Subdivision and Platting Act
The Final Plat must comply with the standards identified and referenced in the Bozeman Municipal
Code. The subdivider is advised that unmet code provisions, or code provisions not specifically
listed as a condition of approval, do not, in any way, create a waiver or other relaxation of the
lawful requirements of the Bozeman Municipal Code or State law. Sections 3 and 4 of this report
identify conditions and code provisions necessary to meet all municipal standards. The listed code
requirements address necessary documentation and compliance with standards. Therefore, upon
satisfaction of all conditions and code corrections the subdivision will comply with the subdivision
regulations.
3) Compliance with the local subdivision review procedures provided for in Part 6 of the
Montana Subdivision and Platting Act
The Bozeman Planning Board public meeting and City Commission public meetings were properly
noticed in accordance with the Bozeman Municipal Code. Based on the recommendation of the
Development Review Committee (DRC), the Planning Board, and other applicable review
agencies, as well as any public testimony received on the matter, the City Commission makes the
final decision on the subdivider’s request.
The Department of Community Development received a pre-application review request on
November 15, 2022. On December 23, 2022, the Applicant submitted a Preliminary Plat
application and the DRC determined that the submittal did not contain detailed, supporting
information that was sufficient to allow for the continued review of the proposed subdivision.
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Preliminary Plat; Application 22311 Page 24 of 41
A revised application was received on February 3, 2023. The DRC determined the application was
adequate for continued review on May 23, 2023 and recommended conditions of approval and
code corrections for the staff report.
The Applicant posted public notice on the subject property and sent public notice to physically
adjacent landowners via certified mail, and to all other landowners of record within 200-feet of the
subject property via first class mail on June 28, 2023. The public comment period is June 28 to
August 8, 2023. No public comment had been received on this application as of the writing of this
report. On August 4, 2023, a major subdivision Preliminary Plat staff report was completed and
forwarded with a recommendation of conditional approval for consideration to the City
Commission. The City Commission held a public meeting on the application on August 15, 2023
and unanimously, by a vote of 4 to 0, moved to approve the Preliminary Plat with conditions and
code provisions. This Finding of Fact and Order report verifies the Commission’s August 15th
decision on the application and in Section 7 outlines provisions for appeal of that decision.
4) Compliance with Chapter 38, BMC and other relevant regulations
Community Development staff and the DRC reviewed the Preliminary Plat against all applicable
regulations and the application complies with the BMC and all other relevant regulations with
conditions and code corrections. This report includes Conditions of Approval and required Code
Provisions as recommended by the DRC for consideration by the City Commission to complete
the application processing for Final Plat approval. All municipal water and sewer facilities will
conform to the regulations outlined by the Montana Department of Environmental Quality and the
requirements of the Design Standards and Specifications Policy and the City of Bozeman
Modifications to Montana Public Works Standard Specifications. The two subdivision variance
requests for street exemption and park frontage modifications have been evaluated, are supported
by City staff, and were granted by the City Commission on August 15, 2023.
5) The provision of easements to and within the subdivision for the location and installation
of any necessary utilities
The Final Plat will provide and depict all necessary utilities and required utility easements. Code
Provisions 9 and 14 require that all easements, existing and proposed, to be accurately depicted
and addressed on the Final Plat and in the Final Plat application. Public utilities are located within
dedicated street right-of ways.
Code Provision 14 requires the provision of agricultural water user facility easements prior to Final
Plat approval. Code Provision 14a and 15a require the Applicant to secure written permission
from the Middle Creek Ditch Company and all applicable water users for the alteration to the ditch
for road crossings and other alterations.
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Preliminary Plat; Application 22311 Page 25 of 41
6) The provision of legal and physical access to each parcel within the subdivision and the
notation of that access on the applicable plat and any instrument transferring the parcel
The Final Plat will provide legal and physical access to each lot within the subdivision. All of the
proposed lots will have frontage on public streets constructed to City standards with lot frontage
meeting minimum standards shown on the Preliminary Plat. Per Code Provision 10b, only Lot 1
of Block 1 will be allowed to have physical access from West Kagy Boulevard, a principal arterial
roadway.
38.220.060 Documentation of compliance with adopted standards
The Development Review Committee (DRC) completed a subdivision pre-application plan review
on May 31, 2022 and no waivers from submittal requirements were requested. The pre-application
review was Application 22194 and was called West University subdivision, however the project
has since been renamed to Aaker Phase 1 Major Subdivision.
Staff offers the following summary comments on the documents required with
Article 38.220.060, BMC.
38.220.060.A.1 – Surface water
A Wetland Delineation report was prepared by TerraQuatics for the entire Aaker property and
has been included as Appendix M of the application materials. Historically and currently this site
has been used for agricultural crop production and grazing. The results of that study show that
there are three wetland systems within the Aaker property and all three systems include a non-
wetland waterway that appears to convey ground water and Middle Creek Ditch Irrigation Water.
Included in the study are several figures and map delineating the wetland systems. The link to the
study is found at the highlighted text.
Furthermore, those wetland systems are depicted on the Civil Plan Sheets.
An Army Corp of Engineers (USACE) 404 permit is currently being prepared to mitigate all
USACE jurisdictional wetland impacts with the proposed Aaker Phase 1 Subdivision. Pursuant to
Code Provision 3, all such permits must be approved and provided to the Community Development
Department with the Final Plat submittal. Code Provision 4 assures that the required watercourse
setback is provided to the wetlands.
The West Fork of Catron Creek runs north south on the western portion of the property, and the
East Fork of Catron Creek runs north south on the more eastern side of the property. The West
Fork is proposed to be diverted to the western wetlands via a diversion pipe. Code Provision 15f
protects these creek waters by the following language on the Conditions of Approval Sheet of the
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Final Plat: "The ownership and maintenance of the pipe which diverts the perennial or intermittent
and flood flows from the existing irrigation ditch to the west fork of the Catron Creek on the north
side of West Stucky Road is the responsibility of the subdivision property owners' association
(POA)."
Code Provision 5c requires the following language to be included on the Conditions of Approval
Sheet to assure the proper maintenance of private stormwater facilities: "The maintenance of all
subdivision stormwater facilities outside the public right-of-way, including stormwater facilities
within the park parcel, is the responsibility of the subdivision property owners’ association (POA).
The maintenance of all private lot stormwater facilities is the responsibility of the private lot
property owners' association (POA)."
38.220.060.A.2 - Floodplains
A Flood Hazard Evaluation (FHE) has been completed and the results of that study are included
as Appendix N of the Preliminary Plat application materials. The existing conditions model results
show that the 100-year inundation area is mostly contained within the area that was also delineated
as wetlands and is within the 50’ watercourse setback area. The results of the model for the
proposed conditions show that there is some backwater created by the new road crossings for Kagy
Blvd., but that the additional flooded area is within the watercourse setback and on the subject
property. A comparison of the existing conditions and proposed conditions are included in the FHE
study.
38.220.060.A.3 - Groundwater
Groundwater monitoring was conducted throughout the 2022 season and is provided in the
Geotechnical Report Appendix O of the Preliminary Plat materials. Depth to seasonal high
groundwater varied from near the surface in the wetlands to about 3-4’ below ground at the
proposed lots. Groundwater is generally flowing to the north. Proposed street and lot grading will
raise the developed portions of the site approximately 2-3’ resulting in a typical depth to seasonal
high groundwater in developed areas of about 5-7’.
Due to the high groundwater, Code Provision No. 5a requires the following language on the
Conditions of Approval Sheet of the Final Plat: "This is a known area of high groundwater. No
crawl spaces or basements may be constructed. Sump pumps are not allowed to be connected to
the sanitary sewer system. Sump pumps are not allowed to be connected to the drainage system.
Water from sump pumps may not be discharged into streets, such as into the curb and gutter where
they create a safety hazard for pedestrians and vehicles.”
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Preliminary Plat; Application 22311 Page 27 of 41
38.220.060.A.4 - Geology, Soils and Slopes
Allied Geotech conducted a field investigation of the Site in 2021 and developed recommendations
for development of the Site in a report dated August 2022. A copy of that report is included in this
application as Appendix O of the Preliminary Plat application materials.
Geologic Hazards
There are no known natural geologic hazards on the property. The property is comprised of an
undeveloped agricultural field that is mostly flat, falling slightly to the north at less than 2
percent. This site does experience high ground water which is not uncommon for Bozeman.
Due to this factor several building recommendations have been provided to mitigate any future
development.
Unusual Features
The property has wetlands, an agricultural irrigation ditch and has high groundwater. There are
no slopes greater than 15% on site.
Soils Map
A soils map and NRCS soil information is included in the Geotechnical Report.
Cuts and Fills
It is not anticipated that cuts or fills will exceed 3’ for the project.
38.220.060.A.5 - Vegetation
The Montana Natural Heritage Program (MTNHP) maintains a statewide database for natural
and human land cover. The property is shown to consist of: Rocky Mountain Lower Montane,
Foothill, and valley grassland; and Cultivated Crops. Additionally, the MTNHP identities two
emergent wetlands onsite which have been depicted on all of the civil drawings and further studied
in the Surface Water Report & Floodplain study (see Exhibit 8 below).
The existing wetland will be preserved in parkland: Block 1, Public Park A lot for Phase 1 and an
un-named Block and Lot in the current Tract B for future phases. The wetland impacts are limited
to two road crossings, a park trail and a pedestrian bridge. These impacts will be mitigated through
the US Army Corp of Engineers (USACE) permitting process if the USACE determines the
wetlands are jurisdictional under their authority. If the wetlands are determined to be non-
jurisdictional by USACE, the City wetland code provisions of BMC 38.610.010 must be satisfied
prior to Final Plat approval (see Code Provisions 2, 3 and 4).
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Exhibit 8: Existing wetlands and ditch on the Site
38.220.060.A.6 - Wildlife
Due to efforts to preserve the wetlands on the Site, this subdivision is not expected to significantly
impact wildlife.
38.220.060.A.7 - Agriculture
The property has been in agricultural operation in recent history. This subdivision, in and of itself,
is not expected to have an adverse effect on surrounding agricultural operations.
38.220.060.A.8 - Agricultural Water User Facilities
Middle Creek Ditch runs through the property. The Applicant notified Middle Creek Ditch
Company of their intentions to develop the property and underground the creek through the
property (see Appendix AA) of the Preliminary Plat application materials. Tentative approval for
this activity has been given to the Applicant by the Middle Creek Ditch Company and Code
Provisions 14a and 15a require written approval from the Ditch Company and downstream water
users prior to Final Plat approval.
ditch
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Preliminary Plat; Application 22311 Page 29 of 41
38.220.060.A.9 - Water and Sewer
The subdivision will not significantly impact City water and sewer infrastructure. Water and sewer
improvements will be designed to meet City of Bozeman Standards and State Department of
Environmental Quality Standards and Regulations.
Per Code Provision 11, the diversion pipe conveying West Fork Catron creek flows from Middle
Creek Ditch back to the original West Fork Catron Creek channel must be able to convey the 100-
year flood flows.
Code Provision 12 assures water adequacy to the Site and assures water rights to the City. Code
Provision 13 assures water adequacy and water rights related to landscaping of public lands within
the proposed Park.
38.220.060.A.10 - Stormwater Management
The subdivision will not significantly impact stormwater infrastructure.
38.220.060.A.11 - Streets, Roads and Alleys
At full buildout of Phase 1, the Aaker development is projected to generate 3,442 gross average
weekday trips, with 251 trips (89 entering/162 exiting) generated during the AM peak hour and
315 trips (176 entering/139 exiting) generated during the PM peak hour. Tract B is the Restricted
Development Lot and any development thereon would have a new subdivision and a Traffic
Impact Study (TIS) associated with proposed development therein.
Phase 1 (2026) capacity results with the existing street network show similar results at all
intersections compared to Existing Conditions (2022), except for the Kagy Boulevard/South 11th
Avenue intersection. That intersection is projected to operate at LOS D on average during both
peak hours with LOS D or worse on the Kagy Boulevard approaches. The northbound approach at
the Kagy Boulevard/South 7th Avenue intersection is projected to worsen to LOS E during both
the AM and PM peak hours. The proposed new site access intersections on Kagy Boulevard will
be stop-controlled and are all projected to operate at LOS A during both peak hours.
The results of the Future (2037) intersection capacity calculations show that delay and 95th
percentile queuing is projected to become extreme at the Kagy Boulevard/South 11th Avenue
intersection, particularly on the east and west approaches. The Kagy Boulevard/South Willson
Avenue intersection is projected to worsen to LOS D and E on multiple approaches with extremely
lengthy queues on most approaches during both peak hours. The South 19th Avenue/Kagy
Boulevard is anticipated to improve from LOS D to LOS C on the westbound approach in the AM
and worsen to LOS D on the southbound approach in the PM. The South 19th Avenue/West
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College Street and South 19th Avenue/West Garfield Street intersections are projected to continue
to operate at a failing LOS on both the eastbound and westbound approaches. At the stop-
controlled intersection of Kagy Boulevard/South 7th Avenue, the northbound and southbound
approaches are projected to operate at a failing LOS. All other intersections and approaches,
including the new site access intersections, are projected to operate at LOS C or better during both
peak hours. This is a link to the TIS:
The TIS recommended the following Capacity Improvements:
South 19th Avenue/West College Avenue: West College Street and Kagy Boulevard
intersections showed little improvement, with both projected scenarios to remain at LOS D on the
east and west legs. It is recommended, due to existing and projected future capacity conditions,
that the timing and coordination plan for the entire corridor be reevaluated by MDT/the City of
Bozeman to maximize capacity and ensure efficient and safe operations.
South 19th Avenue/West Garfield Street: Without impacting the coordination plan along South
19th Avenue, some minor signal timing changes were evaluated in the corridor. The South 19th
Avenue/West Garfield Street intersection can be improved to operate at LOS C or better on all
approaches through minor timing changes for the 2026 scenario and remains LOS D in the AM
for the Future (2037) scenario.
South 19th Avenue/Kagy Boulevard: Minor timing changes and the addition of an eastbound
right-turn overlap phase were shown to slightly improve delay for the Phase 1 (2026) scenario,
with the east and west legs still operating at LOS D. In the Future (2037) scenario, dual southbound
left-turn, and dual westbound right-turn lanes will likely become necessary due to extremely large
volumes projected to perform those movements. Other associated changes would include two
receiving lanes on the east leg and retiming the signal to provide a protected-only phase for
southbound left turns. It was also found that removing the pedestrian phases crossing South 19th
Avenue resulted in improved delay metrics.
Both Condition of Approval No. 3 and Code Provision No.10 require the Applicant to pay their
fair share of improvements to the street network anticipated to be impacted by the subdivision
development. With those requirements, the Aaker Phase 1 Subdivision is not expected to
adversely impact the City’s street infrastructure and will provide adequate improvements to
support the development and the existing neighborhoods by completing the street grid in the area.
Per Code Provision 6, street names must be reviewed and approved by the County's geographic
information systems and City Engineering Department prior to Final Plat approval. The Applicant
must submit written approval from both entities with the Final Plat application.
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 31 of 41
Per Code Provision 10b, Block 1, Lot 1 is the only lot fronting on West Kagy Blvd that will be
allowed physical access to and from that street as it is bordered by the Public Park A on its north
and east sides and by MSU Ag land on its west side.
It is noted that the requested subdivision variance from BMC 38.400.010.A.1 to allow Remington
Way to terminate at South 25th Avenue and not continue to the western boundary of the subdivision
is supported by City staff (see Section 2 above) and was approved by the City Commission at their
August 15, 2023 public meeting on this application. The Preliminary Plat provides a 60’foot wide
street easement through the Public Park A lot in lieu of a developed street. This is to avoid
encroaching on the wetland through the Park unless the MSU lands to the west is developed and
an extension of Remington Way is necessary.
38.220.060.A.12 – Non-Municipal Utilities
The Applicant has received confirmation of future service from Northwestern Energy and internet
providers.
38.220.060.A.13 - Land Use
The subdivision will not significantly impact land use. The Phase 1 subdivision will create 7
buildable lots which are expected to accommodate a mix of townhomes, rowhouses and mixed-
use apartments over commercial space. This Phase 1 of the Aaker subdivision proposes
construction of a 10,000 square-foot neighborhood-serving commercial center, 250 mid-rise
apartment units, 104 single-family attached housing units, and 136 mid-rise apartment units with
20,000 square-feet of commercial/office uses on the first floor. In total, there are 490 proposed
residential units. An 8.84-acre public park is also proposed. The development is anticipated to be
completed in phases, with all of Phase 1 constructed by 2026.
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Preliminary Plat; Application 22311 Page 32 of 41
Exhibit 9: Proposed land use map.
Exhibit 10: Land Use Table
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City Commission Findings of Fact and Order (FOF) Staff Report for the Aaker Phase 1 Major Subdivision
Preliminary Plat; Application 22311 Page 33 of 41
38.220.060.A.14 - Parks and Recreation Facilities
As noted above and shown on Exhibit 6, the subdivision will provide an 8.84 acre City Park. Code
Provision No. 16 assures that the park will be properly dedicated to the City with proper
improvements and water supply.
It is noted that the Park is bordered on its north and west side by private property owned by MSU
and street frontage cannot be provided on those sides via this subdivision without significantly
reducing the size of the Public Park A lot and, possibly reducing the area of the wetlands. The
Applicant has requested a subdivision variance to exempt the park from street frontage on its north
and west sides; this is supported by City staff (see Section 2 above) and was granted by the City
Commission at the August 15, 2023 public meeting on this application.
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38.220.060.A.15 - Neighborhood Center Plan
The subdivision Park Master Plan provides a neighborhood center in the Public Park A lot as
shown below in the yellow box.
Exhibit 11: Neighborhood Center shown in the yellow box
38.220.060.A.16 - Lighting Plan
The subject property is located within the Meadow Creek Subdivision Signal and Sewer payback
district boundaries. If the subject property did not participate in the original cost of construction
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of improvements the subject property will be accessed a payback charge prior to Final Plat
approval. Staff recommends Code Provision No. 8 to assure proper street lighting.
38.220.060.A.17 - Miscellaneous
The proposed subdivision is not located within 200 feet of any public land access or within a
delineated Wildland Urban Interface area. No health or safety hazards on-site or off-site will be
created with this development.
38.220.060.A.18 - Affordable Housing
It is not anticipated that affordable housing, as defined by BMC 38.700.020, is to be provided,
although the Commission at the August 15, 2023 meeting on this application strongly urged the
Applicant to investigate affordable housing incentives offered by the City as well as investigate
the eligibility of the neighborhood for tax credit financing of affordable housing for this
development.
38.220.060.A.19 – Adopted Growth Policy
This proposal furthers relevant adopted growth policies of the Bozeman Community Plan. The
subdivision is zoned both REMU and B-2M. Refer to Appendix A below, Project Site Zoning and
Growth Policy for further discussion on the adopted growth policies this proposal positively
addresses.
SECTION 7 - FINDINGS OF FACT, ORDER AND APPEAL PROVISIONS
A. PURSUANT to Chapter 38, Article 3, BMC, and other applicable sections of Chapter 38,
BMC, public notice was given, opportunity to submit comment was provided to affected parties,
and a review of the Preliminary Plat described in these findings of fact was conducted.
B. The purposes of the Preliminary Plat review were to consider all relevant evidence relating
to public health, safety, welfare, and the other purposes of Chapter 38, BMC; to evaluate the
proposal against the criteria and standards of Chapter 38 BMC, BMC; and to determine whether
the plat should be approved, conditionally approved, or denied.
C. The matter of the Preliminary Plat application was considered by the City Commission at
a public meeting on August 15, 2023 at which time the Department of Community Development
Staff reviewed the project, submitted and summarized the project proposal, and summarized the
public comment submitted to the City prior to the public meeting.
D. The Applicant acknowledged understanding and agreement with the recommended
conditions of approval, code provisions including the changes to the conditions of approval.
E. The City Commission requested public comment at the public meeting on August 15, 2023
and there were no public comments offered.
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F. It appeared to the City Commission that all parties and the public wishing to examine the
proposed Preliminary Plat and offer comment were given the opportunity to do so. After receiving
the recommendation of the relevant advisory bodies established by Article 38.210, BMC, and
considering all matters of record presented with the application and during the public comment
period defined by Chapter 38, BMC, the City Commission has found that the proposed Preliminary
Plat would comply with the requirements of the Bozeman Municipal Code if certain conditions
were imposed. Therefore, being fully advised of all matters having come before her regarding this
application, the City Commission makes the following decision.
G. The Preliminary Plat has been found to meet the criteria of Chapter 38, BMC, and is
therefore approved, subject to the conditions listed in Section 3 of this report and the correction of
any elements not in conformance with the standards of the Chapter including those identified in
Section 4 of this report. The evidence contained in the submittal materials, advisory body review,
public testimony, and this report, justify the conditions imposed on this development to ensure that
the Final Plat, subsequent site plan(s) and subsequent construction complies with all applicable
regulations, and all applicable criteria of Chapter 38, BMC.
H. This City Commission order may be appealed by bringing an action in the Eighteenth
District Court of Gallatin County, within 30 days after the adoption of this document by the City
Commission, by following the procedures of Section 76-3-625, MCA. The preliminary approval
of this phased subdivision shall be effective for three (3) years from the date of the signed Findings
of Fact and Order approval. At the end of this period the City may, at the request of the subdivider,
grant an extension to its approval for a period of mutually agreed upon time.
DATED this ________ day of _____________________, 2023.
BOZEMAN CITY COMMISSION
_________________________________
CYNTHIA L. ANDRUS
Mayor
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ATTEST:
_______________________________
Mike Maas
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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APPENDIX A – PROJECT SITE ZONING AND GROWTH POLICY
Zoning Designation and Land Uses:
The subject property is zoned REMU, Residential Emphasis Mixed-Use and B-2M, Community
Business District – Mixed.
Adopted Growth Policy Designation:
Table 4 of the Bozeman Community Plan 2020 shows the correlation between future land use map
designations and implementing zoning districts. The property is designated Community
Commercial Mixed Use on the Community Plan Future Land Use Map and both REMU and B-
2M zoning are implementing zoning districts for that land use designation.
The subject property responds to the following Growth Policies of the Community Plan.
The following goals and policies of the Community Plan are positively addressed by this proposed
subdivision.
· Theme 2 – A city of unique neighborhoods
· Goal N-1: Support well-planned, walkable neighborhoods
· N-1.5 Encourage neighborhood focal point development with functions, activities, and
facilities that can be sustained over time. Maintain standards for placement of community
focal points and services within new development.
· N-1.7 Review and where appropriate, revise block and lot design standards, including
orientation for solar power generation throughout city neighborhoods.
· N-1.9 Ensure multi-modal connections between adjacent developments
· N-1.10 Increase connectivity between parks and neighborhoods through continued trail and
sidewalk development. Prioritize closing gaps within the network.
· N-2.3 Investigate and encourage development of commerce concurrent with, or soon after,
residential development. Actions, staff, and budgetary resources relating to neighborhood
commercial development should be given a high priority.
· Goal N-4: Continue to encourage Bozeman’s sense of place.
· N-4.2 Incorporate features, in both public and private projects, to provide organization,
structure, and landmarks as Bozeman grows.
Aaker is envisioned as a well-planned walkable neighborhood. The Site has been designed to
use the proposed City Park as a focal point for this first phase of the project. Multi-modal
connections are envisioned through the project to connect back to this focal point. The project will
contribute to the sense of the place of this area of the community by prioritizing and
enhancing/expanding the outdoor recreation amenities that exist in this area.
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· Theme 3 - A City Bolster by Downtown and Complimentary Districts
· Goal DCD-1: Support urban development within the City.
· DCD-1.5 Identify underutilized sites, vacant, and undeveloped sites for possible
development or redevelopment, including evaluating possible development incentives.
· DCD-1.12 Prioritize the acquisition and/or preservation of open space that supports
community values, addresses gaps in functionality and needs, and does not impede
development of the community
· Goal DCD-3: Ensure multi-modal connectivity within the City.
· DCD-3.1 Expand multi-modal accessibility between districts and throughout the City as a
means of promoting personal and environmental health, as well as reducing automobile
dependency.
· DCD-3.2 Identify missing links in the multi-modal system, prioritize those most beneficial to
complete, and pursue funding for completion of those links.
· DCD-3.3 Identify major existing and future destinations for biking and walking to aid in
prioritization of route planning and completion.
The project includes open space and parks to compliment the surrounding neighborhoods and
future adjacent commercial centers. This site also prioritizes multi-modal connections enhancing
the pedestrian connections to adjacent neighborhoods.
· Theme 4 - A City influenced by our Natural Environment, Park and Open Lands
· Goal EPO-2: Work to ensure that development is responsive to natural features.
· EPO-2.1 Where appropriate, activate connections to waterways by creating locations,
adjacent trails, and amenities encouraging people to access them.
The Aaker Neighborhood has been designed to protect the adjacent wetlands to the greatest extent
possible. The two wetlands on the Site will be dedicated City parklands. Rather than looking at
these wetlands as a challenge, the Applicant states that he seeks to enhance them, as well as activate
areas adjacent to them.
· Theme 5 - A City That Prioritizes Accessibility and Mobility Choices
· Goal M-1: Ensure multi-modal accessibility.
· M-1.4 Develop safe, connected, and complementary transportation networks for
pedestrians, bicyclists, and users of other personal mobility devices ( e-bikes, electric
scooters, powered wheelchairs, etc.).
· M-1.5 Identify locations for key mobility hubs (e.g., rideshare drop off/ pick up areas,
bike/scooter share, transit service, bike, and pedestrian connections).
· M-1.9 Prioritize and construct key bicycle infrastructure, to include wayfinding signage,
connections, and enhancements with emphasis on completing network connectivity.
· M-1.11 Prioritize and construct key sidewalk connections and enhancements.
· Goal M-2: Ensure multi-modal safety.
· M-2.5 Develop safe crossings along priority and high utilization pedestrian and biking
corridors.
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While the project has been designed with safe streets and access for pedestrians and cyclists, it
is also comprehensively planned for auto vehicles with sufficient parking throughout. In addition,
the two City Parks provide for easy and safe pedestrian and bike connections throughout the project
and to adjacent neighborhoods as well.
APPENDIX B – DETAILED PROJECT DESCRIPTION
Project Background and Description
This major subdivision Preliminary Plat application is submitted by the Applicant, West University
LLC, by Barry Brown, 109 East Oak Street, Suite 2B, Bozeman, MT 59715. Tyler Steinway of
Intrinsik Architecture is his representative, 106 East Babcock Street, Suite 1A, Bozeman, MT,
59715.
APPENDIX C – NOTICING AND PUBLIC COMMENT
Notice was provided at least 15 and not more than 45 days prior to the August 8th close of the
public comment period/City Commission public meeting per BMC 38.220.420, The City
scheduled public notice for this application on June 28, 2023 and the Applicant posted public
notice on the subject property and sent public notice to physically adjacent landowners via certified
mail, and to all other landowners of record within 200-feet of the subject property via first class
mail. No comments have been received as of the date of this report. The City Commission meeting
scheduled for August 8, 2023 was formally postponed on August 8th to the August 15th
Commission meeting.
APPENDIX D – OWNER INFORMATION AND REVIEWING STAFF
Owner: West University, LLC, Barry Brown, 109 East Oak Street 2B, Bozeman MT, 59715
Representative: Intrinsik Architecture, Tyler Steinway, 106 E Babcock Suite 1A, Bozeman, MT
59715
Report By: Susana Montana, Senior Planner
FISCAL EFFECTS
Fiscal impacts cannot be determined at this time, but it is expected that property tax would be
generated by development of the Site and increased costs to provide municipal services for that
development would be expected. No unusual fiscal effects have been identified.
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ATTACHMENTS
The full application and file of record can be viewed digitally at this highlighted text
or via the “Project Documents Folder” and navigate to application #22311, as well as digitally at
the Community Development Department at 20 E. Olive Street, Bozeman, MT 59715.
If public comment is provided, it may be accessed via the highlighted text.
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