City of Bozeman, MT - December 4, 1995

The Commission of the City of Bozeman met in regular session in the Commission Room, Municipal Building, December 4, 1995, at 3:00 p.m. Present were Mayor Vincent, Commissioner Youngman, Commissioner Stiff, Commissioner Stueck, Commissioner Frost, City Manager Wysocki, City Attorney Luwe and Clerk of the Commission Sullivan.

Decisions - Conditional Use Permit for Planned Unit Development to develop 147.2 acres with 141 single-family residential units and 6.18 acres with neighborhood service uses; and Preliminary Plat to subdivide 72.85 acres into 67 lots for single-family residential, 6.18 acres into two neighborhood service lots, and open space - portion of tract located in NE¼, Section 25, T2S, R5E, and NW¼, Section 30, T2S, R6E, MPM (northeast corner of intersection of South Third Avenue and Goldenstein Lane) (Z-95125 and P-9539)

This was the time and place set for the decisions requested by Don Hannah for Sourdough Creek Properties, on a 147.2-acre tract located in the northeast one-quarter of Section 25, Township 2 South, Range 5 East, and the northwest one-quarter of Section 30, Township 2 South Range 6 East, Montana Principal Meridian, as follows: (1) a Conditional Use Permit for Planned Unit Development, under Application No. Z-95125, to develop 141 single-family residential units and 6.18 acres with neighborhood service uses; and (2) preliminary plat, under Application No. P-9339, to subdivide 72.85 acres into 67 lots for single-family residential development, 6.18 acres into two neighborhood service lots, and the remainder in common space and open space. The subject property is more commonly located at the northeast corner of the intersection of South Third Avenue and Goldenstein Lane.

City Manager Wysocki noted that, included in the Commissioners' packets, was a memo from Assistant Planning Director Debbie Arkell, forwarding responses to many of the questions which have been asked. He noted that several letters were also included in the packets; however, he cautioned that those were received after the public hearing was closed and, therefore, may not be considered during the decision-making process.

Responding to Mayor Vincent, Assistant Planning Director Arkell stated that, in this instance, the Planned Unit Development application pertains to both the zoning and the subdivision. She noted that since the subject property is zoned "R-S", Residential--Suburban Country Estates, a zoning PUD is needed to allow development on lots smaller than the minimum size allowed under code, and a subdivision PUD is being sought to allow for relaxation of the City street standards.

Further responding to Mayor Vincent, the Assistant Planning Director stated that when considering an application for development of vacant land, staff reviews the application in comparison to the minimum standards allowed by code. She cautioned that if a proposal for development were compared to its existing status as raw land, no development proposal would ever meet the criteria. She stated that in this instance, the proposal was compared to a typical "R-S" subdivision of one dwelling unit per acre, served by County-standard streets. She noted that in a typical residential subdivision, one-ninth of the area must be dedicated to parkland; under the PUD section, 30 percent of the entire area must be maintained in open space, not counting required setbacks.

City Attorney Luwe stated that the Commission must first approve the zoning PUD before it may consider the subdivision. He cautioned that if the Commission approves the subdivision without approving the zoning PUD, the project will be out of compliance with the 1990 Bozeman Area Master Plan Update.

Responding to Commissioner Frost, the Assistant Planning Director suggested that Section 12.7 of the covenants be revised by adding a paragraph which states that light fixtures shall be arranged to deflect light down and away from streets and adjacent properties, through the use of cut-off shields, and requires that they be compatible with the site and architectural design.

Responding to Commissioner Youngman, the Assistant Planning Director indicated that the proposed language which she forwarded could be incorporated into all sections of the covenants, to ensure that it pertains to all lighting within the development, including those lights on houses and commercial buildings. She reminded the Commission that the lighting in the commercial area will be reviewed during the site plan review process.

Commissioner Frost noted that the Fire Marshal has suggested that sprinkler systems should be required if a new fire station is not in place when development occurs, due to the response time from either existing fire station. He asked if that requirement should be included in the conditions for approval.

Responding to Commissioner Frost, the Assistant Planning Director suggested that two different management plans could be created for the open spaces, with one of the types being for wildlife, and left in its natural state, and the other being for human interaction, and being maintained. She suggested that, through appropriate mowing of the open space near homes, the potential of wildfires could be greatly reduced. She then showed the Commissioners a map depicting the two different types of open space, as proposed by the applicant.

Further responding to Commissioner Frost, the Assistant Planning Director stated that under the conditions of approval, as recommended, building sites must be located a minimum of 50 feet from adjacent parkland. She recognized that this may require some adjustments to lots in the southeast corner of the site.

Responding to Mayor Vincent, the Assistant Planning Director stated that only the trails through the development would be accessible and usable by the general public, while the open space would be open to the residents of the subdivision and their guests. She noted that the homeowners' association would own the open space and be responsible for enforcement of its rules.

Commissioner Frost stated his concurrence with Commissioner Stiff's suggestion that wells be required in the northeast corner of the site. He suggested, however, that the condition include the requirement that those wells be of low visual impact. He then questioned whether these wells might have negative impacts on wells in the Gardner Park subdivision.

Commissioner Youngman addressed the issue of groundwater, expressing her concern about the water levels on some of the proposed lots. She suggested that, since the applicant has indicated a willingness to do more groundwater testing, the Commission should require it, particularly in the west and southwest portions of the site.

After discussion, the Assistant Planning Director reminded the Commission that staff has information on the types of soils found on the site and the groundwater depths. She further reminded the Commission that, under existing regulations, homes may not be constructed less than two feet above the groundwater table. She cautioned that the exact groundwater depth in a specific location may not be known until digging is begun. She reminded the Commission that, if that occurs, the situation must be mitigated under existing regulations.

Commissioner Stueck noted that the water table on this site is typically not any higher than it is where the new Human Resources Development Council housing project is constructed on North 24th Avenue. He then stated that the note on the plat that no basements are allowed should be adequate to caution potential purchasers of the groundwater level.

Responding to questions from Mayor Vincent, Planning Director Epple stated that, if the Commission wishes, it could require the applicant to establish monitoring wells on each of the homesites. He noted that this might provide better data upon which to base the design and construction of the foundation for each of the homes constructed within this subdivision.

Responding to Commissioner Frost, the Assistant Planning Director stated that under the planned unit development, one residential unit per acre is required. She recognized that, after the lots are created, the City, or anyone else, could choose to purchase some of them and not build on them. She noted that, unless a variance is requested and granted, 141 residential lots must be created.

Responding to Commissioner Frost, City Attorney Luwe stated it might be possible to add a condition that gives the City first right of refusal on purchase of the southeast corner of the property. He reminded the Commission that, with the number of additional conditions being proposed, it is important to obtain the applicant's comments before taking action.

Commissioner Youngman suggested that the conditions be amended to require an enhanced plan for the wetlands, including the requirement for one pond to be a minimum of an acre in size. The Assistant Planning Director responded that could be accommodated with a change to Condition No. 27.

Responding to additional concerns voiced by Commissioner Youngman, the Assistant Planning Director noted that a permit must be obtained prior to work done within the floodplain. She suggested that this should help to alleviate the concerns which have been registered. She also noted that, given the conditions recommended for approval, no run-off will be allowed to leave the subject 147 acres, thus avoiding impacts to properties downstream.

Responding to Mayor Vincent, City Attorney Luwe recognized an issue was raised by the Citizens to Save Open Space regarding jurisdiction authority. He reminded the Commission, however, that the subject property has now been annexed, stating that the City Commission has the authority to act on the applications before them at this time.

Mr. Joe Sabol, attorney representing the applicant, noted that they have tracked the Commission discussion and understand the conditions as proposed. He indicated that they have no problem with any of the conditions proposed, subject to seeing the language of those conditions in the Findings of Fact. He noted that the applicant has recognized the need to provide better data on the groundwater in some areas of the site, and has indicated his intent to drill more monitoring wells.

Responding to Mayor Vincent, City Attorney Luwe stated that if the Commission approves the preliminary plat with conditions, staff will bring back Findings of Fact for Commission action. He indicated that the applicant will have an opportunity to review the conditions contained in those Findings and, if the applicant disagrees with some of those conditions, then additional consideration may be necessary.

Commissioner Frost stated that he had many problems with the previous application, and he does have some concerns with this application. He noted that this application is better than the previous one, although he would still prefer to see more open space and higher density in some areas. He recognized the sensitivity of the land involved, recognizing that the availability of City services will help to alleviate some of the potential problems. He then indicated his support for narrower streets and borrow pits, noting they will help in on-site water detention.

Commissioner Youngman thanked the applicant for the changes to the proposal and thanked the neighbors for their input, noting that they have helped the Commissioners to better understand the sensitivity of the site. She suggested that the conditions under consideration will mitigate the impacts which have been identified. She indicated that her preference would be to not approve this application; however, she has been unable to find sufficient reasons to do so. She stated that this application provides open space, protects the wetlands and provides public access to the trails. She also noted that the protection of wetlands in the northeast corner will be an enhancement to the area, particularly since it abuts McLeod Park and provides access to the Sourdough Trail. She noted that, since the City is a partner to the covenants, they cannot be changed without City approval, which she feels is important. She concluded by encouraging the community to make every effort to purchase some of the sensitive area, to protect some of the open space which it currently enjoys.

Mayor Vincent stated his opposition to the proposed development. He noted that the subject property is within the urban growth area. He stated that, after reviewing the criteria in the Subdivision and Platting Act and the criteria for planned unit developments, he does not believe that this application meets them. He stated there is a significant amount that is not known about the subject property, and he feels that approval of the application without that information would be inappropriate. He noted that the subject property is the best of the remaining open space in the community, and he feels that development of this area is not appropriate. He stated that the entire community appreciates and enjoys the current openness of this subject 147 acres, not just those who live in the area, and allowing development to occur will irreversibly change its character. He cited open areas in larger cities, including the Boston Common and Central Park in New York City, as examples of recognizing the importance of green spaces in populated areas, stating that this property could provide the same type of amenity for Bozeman.

Mayor Vincent noted statistics reveal that 50 percent of real estate sales in the County were made to residents of Bozeman, by their choice. He recognized many people argue that Bozeman is a great place to live, however, he noted that argument could be used until there is no more land available for development.

The Mayor addressed several of the criteria under which this application must be reviewed, stating he does not feel the proposal is compatible with the neighborhood; the development will negatively impact the transportation system and other public facilities services; the development will negatively impact police and fire services; and the development will diminish the natural environment, possibly degrading it and definitely not enhancing it. He stated that this proposal will have negative impacts on agricultural land, on the natural environment, and on wildlife and wildlife habitat, none of which can be adequately mitigated.

Mayor Vincent noted that open space has been identified as one of the primary attributes of this project; however, he noted that, except for the trails through the open space, it is open to residents only. He recognized that the open space will be a nice and enjoyable amenity for those within the development, but not for the entire community.

It was moved by Commissioner Youngman, seconded by Commissioner Stiff, that the Commission approve the Conditional Use Permit for Planned Unit Development, as requested by Don Hannah for Sourdough Creek Properties, under Application No. Z-95125, to develop 141 single-family residential units and 6.18 acres with neighborhood service uses, on a 147.2-acre tract located in the northeast one-quarter of Section 25, Township 2 South, Range 5 East, and the northwest one-quarter of Section 30, Township 2 South Range 6 East, Montana Principal Meridian, subject to the following conditions:

1. Preliminary plan/plat approval does not exempt the developer from impact fees which may be established at a later date which are based on final plat approval or building permit approval. Final plan/plat approval shall be subject to any impact fees which may be implemented prior to said final plan/plat approval. Development of individual lots shall be subject to any impact fees applicable to building permit applications implemented with any impact fee policy prior to building permit approval.

2. Seven copies of the final site plan for the Zoning Planned Unit Development which contains all of the conditions, corrections, and modifications approved by the City Commission which are applicable to it shall be approved by the Planning Director within three years following the approval of the preliminary plan by the Bozeman City Commission. Upon application and for good cause, the Planning Director may administratively extend the period for filing a final site plan for two successive six-month periods. Any additional six-month extensions must be approved, if at all, only by the Planning Board. The final site plan shall comply with Section 18.54.060 of the zoning ordinance, as printed in the 9-93 codification of the Bozeman Municipal Code, and shall be adequately dimensioned. The final site plan must be approved prior to final subdivision plat approval.

The applicant shall enter into an Improvements Agreement with the City to guarantee the installation of required on-site improvements at the time of final site plan submittal. These improvements will include those identified with each subdivision phase, including sidewalks fronting parks, open space, rear yard frontages, or other non-lot frontages, and landscape and trail improvements. Detailed cost estimates, construction plans, and methods of security for on-site improvements shall be made a part of that Agreement. All required infrastructure and site improvements for Phase 1 shall be completed within two years after final approval.

3. Preliminary subdivision plat approval must be granted for each phase of the development, with the final plat filed prior to the sale of any homesites within each phase. A building permit will not be issued for any new construction within each phase until the final plat is filed and infrastructure improvements are completed and accepted.

4. The final subdivision plat shall conform to the Uniform Standards for Final Subdivision Plats, contain all appropriate certificates, page titles, and be accompanied by all appropriate documents, including a Platting Certificate. A digital copy of the final plat, on a double-sided, high-density 3½-inch floppy disk, shall be submitted with the final plat application. The final subdivision plat must be approved within three years from the date of preliminary plat approval by the Bozeman City Commission. Prior to the expiration date, the subdivider may submit a letter of request to the Planning Director for a one year extension. Thereafter, the City Commission may approve an extension for not more than one additional calendar year.

The final subdivision plat may not be filed until the final site plan is approved. If it is the developer’s intent to file the final subdivision plat prior to the completion of all required subdivision improvements, which includes, but is not limited to, interior streets, curb, gutter, water and sewer, pedestrian conveyance along South Third and Goldenstein, sidewalks fronting parks, open space, rear yard frontage, or other non-lot frontages, and storm water infrastructure, a Subdivision Improvements Agreement shall be entered into with the City of Bozeman guaranteeing the completion of all required Phase 1 improvements in accordance with the preliminary plat submittal information and conditions of approval. If the final subdivision plat is filed prior to the installation of all improvements, the developer shall supply the City of Bozeman with an acceptable method of security equal to 150% of the cost of the remaining improvements. Under no circumstances will building permits be issued prior to acceptance of subdivision infrastructure improvements (i.e. water, sewer, streets).

The final subdivision plat submittal must include a separate open space landscape plan for Phase 1 which details the location and species of vegetative plantings and trail improvements for review and approval by the Planning Office prior to final plat approval. The plan must show that all street intersection sight triangles will be free of plantings which at mature growth will obscure vision within the sight triangle.

5. Approval of the final subdivision plat from the Subdivision Program of the Montana Department of Health and Environmental Sciences Water Quality Bureau must occur prior to final subdivision plat approval, pursuant to Section 16.16.101 through 16.16.805, ARM. Notification of that approval must be submitted with the final plat.

6. A Stormwater Drainage/Treatment Plan for a system designed to remove solids, silts, oils, grease, and other pollutants must be provided to and approved by the City Engineer prior to infrastructure construction. The plan must demonstrate adequate site drainage (including sufficient spot elevations), the hydraulic and drainage treatment properties of the proposed vegetated roadway swales, storm water detention/retention basin details (including basin sizing and discharge calculations, and discharge structure details), and storm water discharge destination. Sufficient storm water systems shall be designed and constructed to support each phase of development.

A stormwater drainage/treatment facilities plan must be prepared and submitted to the City Engineer for approval. The plan must include the following provisions: description of maintenance operations, frequency of inspections and maintenance, responsible parties, and record keeping methodology. It will ultimately be the responsibility of the Homeowners' Association to ensure that the maintenance plan is consistently enforced. It is further recommended that implementation of the plan be included in the covenants and therefore, a condition of plat approval.

7. A site grading plan shall be prepared as a supplement to the project improvement drawings, which includes, at a minimum, existing contours, contours after the street is constructed but before development grading, spot elevations and flow directional arrows. The plan must demonstrate adequate drainage to an acceptable discharge device, and should be used to establish street and building foundation grades. If the grading design discloses any adverse impact to off-site properties, necessary design alterations and/or drainage conveyance devices and easements must be provided.

8. Plans and specifications for all water, sewer, and storm sewer main extensions, as well as public and private streets (including curb, gutter, and sidewalks/pedestrian conveyances) prepared by a Professional Engineer (PE) licensed in the state of Montana shall be provided to and approved by the City Engineer and, where applicable, the County Road Superintendent. Water and sewer plans shall also be approved by the Montana Department of Environmental Quality. The applicant shall provide professional engineering services for construction inspection, post-construction certification, and preparation of mylar record drawings. Specific comments regarding the existing and proposed infrastructure shall be provided at that time. Construction shall not be initiated on the public infrastructure improvements until the plans, specifications and shop drawings have been approved and a preconstruction conference has been conducted.

Proposed water mains on South Third and Goldenstein Lane shall be installed and accepted by the City of Bozeman as part of the first phase to satisfy the requirement of a looped water system. Additional, required, internal water main looping will be addressed during the water and sewer plan reviews. Project infrastructure phasing, including all utility phasing, shall be clearly shown during plan and specification review to ensure adequate water looping requirements.

To impede ground water migration along public utility trenches, clay or concrete cutoff walls shall be installed along all sanitary sewer lines and water lines within the development and along the extension of the sewer line connecting with the existing sewer in Graf Street through Graf's Fourth Addition. The location of the cutoff walls shall be subject to review and approval of the City Engineer.

9. All infrastructure improvements including 1) water and sewer main extensions, and 2) public and private streets, curb/gutter, sidewalks fronting parks, open space, rear yard frontage, or other non-lot frontages, and related storm drainage infrastructure improvements shall be constructed for each phase prior to final plat approval of each phase. No building permits will be issued prior to acceptance of subdivision infrastructure improvements.

City standard residential sidewalks (including a concrete sidewalk section through all private drive approaches) shall be constructed on all public and private street frontages of a property prior to occupancy of any structure on the property. Upon the third anniversary of the plat recordation of any phase of the subdivision, any lot owner who has not constructed said sidewalk shall, without further notice, construct within 30 days said sidewalk for their lot(s), regardless of whether other improvements have been made upon the lot. This condition shall be included on the face of the final subdivision plat and in the covenants.

10. Easements for the water and sewer main extensions, where needed, shall be a minimum of 30 feet in width, with the utility located in the center of the easement or standard locations, with the possible exception of the water mains on South Third and Goldenstein Lane. All existing and proposed utility easements shall be shown on the final subdivision plat and the final site plan, and utility easements shall be in the location required by the subdivision regulations unless a utility company requests otherwise. A blanket utility note may not be used; each lot must show all utility easements.

14. The Montana Department of Environmental Quality, Water Quality Bureau, shall be contacted by the applicant to determine if a Storm Water Discharge Permit is necessary. Written notification of the need or no need for the permit shall be submitted with the construction drawings. If a permit is required by the State, the developer shall demonstrate to the City full permit compliance.

15. The developer's Professional Engineer, licensed in the State of Montana, shall be required to prepare a comprehensive design report evaluating existing capacity of water and sewer utilities. The report must include detailed hydraulic evaluations of each utility for both existing and post-development demands for each phase of development. The report findings must demonstrate adequate capacity to serve the full development.

If adequate water and/or sewer capacity is not available for full development, the report must identify necessary water system and sewer system improvements required for full development. The developer shall be responsible to complete the necessary system improvements to serve the full development.

The design report shall also include a roadway design section. The report must include an analysis of the on-site and future public right-of-way soil conditions, special grading recommendations, roadway bearing capacities, the impacts of groundwater on the design, projected traffic loadings, and street section(s) design. The design must incorporate the findings of an independent on-site soils investigations, existing groundwater monitoring investigations, and the findings of the April 27, 1995 SCS study.

The developer shall be responsible to increase the capacity of the 12-inch sewer extending between the intersections of Tracy/ Hoffman and Mason/South Willson, in addition to one section of 8-inch sewer in Fairway Drive, south of Kagy Boulevard, which will be over capacity with the first phase of the subdivision. It will be the responsibility of the developer to increase the capacity of the described pipelines to adequately convey sewage effluent from the total future development, i.e., all phases combined.

The developer shall be responsible to have designed and constructed a booster system to provide adequate pressure and volumes to the lots in the westerly portion of the project that may be impacted by potential inadequate water pressure in the City’s water system. The system shall be subject to review and approval by the City Engineer and shall be adequately addressed in the design report.

16. The developer shall provide the City of Bozeman a minimum 30- foot-wide sewer easement extending along Graf Street from the north terminus of Phase 1 to the northerly property boundary of the development. The easement shall follow the future alignment of Graf Street. The developer shall also cause to be provided to the City of Bozeman a minimum 30-foot-wide sewer easement extending along the future alignment of Graf Street from the northerly property boundary to the existing sewer main in existing Graf Street, north of the project.

17. A 50-foot-wide right-of-way shall be dedicated for the realignment of the intersection of South Third Avenue and Goldenstein Lane. A full 100-foot right-of-way shall be dedicated in the area where the future road falls entirely within the project site. A 45-foot-wide right-of-way dedication for Goldenstein Lane shall also be provided along the section of Goldenstein Lane adjoining Phase 1. A 20-foot-wide right-of-way shall be dedicated along South Third Avenue for the entire length of the development (except where additional right-of-way is required). The widths of the right-of-way dedications for South Third Avenue and Goldenstein Lane shall be clearly indicated on the final plat.

18. The realignment of the roadway and intersection of South Third Avenue and Goldenstein Lane shall be funded and constructed by the developer, at standards approved by the County Road Superintendent. Improvements consistent with the City’s G.O. Bond Issue project for South Third Avenue shall be constructed by the developer for that portion of South Third Avenue to be realigned near Goldenstein Lane, at standards approved by the City Engineer and County Road Superintendent. These improvements shall be constructed prior to final plat approval of Phase 1, unless included in a Subdivision Improvements Agreement. Building permits for the project will not be issued for any lots within Phase 1 even if included in an Improvements Agreement. These improvements must be completed prior to home or commercial construction in Phase 1. The developer shall obtain any wetland permits required concerning the realignment and road improvements.

19. Provisions for pedestrian conveyance along South Third Avenue and Goldenstein Lane shall be provided by the developer. These provisions must meet with the County Road Supervisor’s approval, and shall be completed prior to final plat approval of Phase 1. These improvements may be financially guaranteed through an Improvements Agreement, and if so guaranteed, will not impede the issuance of building permits within the project. However, the improvements must be completed within the time period allowed in the Subdivision Improvements Agreement.

21. Graf Street shall continue through the project and not change names at the intersection with Peace Pipe Drive (i.e., eliminate reference to Wind Flower Drive), and shall terminate at Morning Sun Drive. The “South” designation shall be dropped from Graf Street references.

26. The property owner shall provide and file with the final subdivision plat an executed waiver of right to protest creation of special improvement districts for improvements to South Third Avenue, between Kagy Boulevard and Goldenstein Lane, and for improvements to the South Third/Willson/Kagy Boulevard intersection (to include signalization), unless the document is already on file with the Gallatin County Clerk and Recorder’s Office. The waiver shall specify that in the event SIDs are not utilized for the completion of these projects, the owner shall agree to participate in an alternate financing method for completion of said improvements on a fair share, proportionate basis as determined by the square footage of the property, linear front footage of the property, taxable valuation of the property, or combination thereof. Said waiver shall be a covenant running with the land and shall not expire.

27. A 100-foot-wide linear park, from the northwest corner of Gardner Park, west along the north property boundary for a distance of 500 feet, then reduce the width to 50 feet and continue west along the north property boundary to Graf Street, shall be dedicated with Phase 1. This linear park shall become an extension of Gardner Park.

A 50-foot-wide linear park from the southeast corner of McLeod Park north along the east boundary of McLeod Park to the end of Sundance Drive, then east along the north property boundary to the property corner, then north to the northwest property corner and finally east along the north property boundary to Graf Street shall be dedicated with Phase 1. This dedication shall include the 50 feet of Graf Street to connect the extension of Gardner Park, and will become an extension of McLeod Park.

The developer shall not be required to construct the trail(s) through McLeod Park, but shall contact and work with the Gallatin County Commission regarding the possibility of the installation of a trial(s) through McLeod Park. This contact will then provide an opportunity for volunteer groups to construct the trail network. If the Gallatin County Commission will not grant approval for the construction of a trail(s) through McLeod Park, the developer, in the appropriate phase, shall construct a trail through the open space north of Peace Pipe Drive to connect McLeod Park to South Third Avenue, with a connection to Good Medicine Way and a second connection to Peace Pipe Drive between Blocks 8 and 10.

The Recreation and Parks Advisory Board shall be contacted by the developer with regard to a linear trail, with a permanent public trail easement, to be constructed by the developer, on the west side of the existing trees in the northeast open space area to provide an alternate trail from the Sourdough Trail to the trail on the north boundary of the subdivision. The location and construction of the trail shall be approved by the Recreation and Parks Advisory Board. This trail shall be developed when that phase of the property develops. If the Recreation and Parks Advisory Board finds that this trail is not wanted or needed as part of the linear trail system, the developer shall not be required to install it.

29. A documented market study shall be provided prior to submittal of the final site plan for the zoning PUD that shows the proposed uses within the neighborhood service area (Blocks 10 and 11) will be supported by the area residents. If the study does not conclude that 50% of the business will be generated from this area, development of the neighborhood service lots will not be allowed. Uses permitted on these lots include professional offices and other permitted uses listed in the B-1 neighborhood service district chapter of the Bozeman Zoning Ordinance. Full site plan review and/or subdivision review will be required for all development within Blocks 10 and 11, Phase 1 subdivision. If not allowed, a maximum of six additional single-family residential lots could be created within these two blocks via further subdivision review and approval.

The need for mitigation of the long fire department response times which are probable prior to the time new fire station facilities may be constructed nearer to this area, such as, but not limited to, sprinklering of residential dwelling structures, shall be left to the discretion of the Fire Chief.

31. The County Weed Control Officer shall approve a Weed Control Plan for the subdivision, and a signed copy of the Plan shall be submitted to the Planning Office prior to final subdivision plat approval. Any mitigations required in the plan shall be completed by the developer, and approved by the County Weed Control Officer in writing, prior to final plat approval.

a) The Covenants shall be amended to indicate that the City of Bozeman is a party to the Covenants, and any covenant contained therein as a condition of preliminary plan or plat approval and required by the City Commission may not be amended or revoked without the mutual consent of the owners in accordance with the amendment procedures listed in the covenants, and by the City of Bozeman.

b) Clarify Article IX, Section 9.4, Mowing Practices, to state that the Fire Chief shall be contacted by the Homeowners' Association regarding the need to mow in Type 1 Management Areas for fire prevention. If not necessary, Type 1 Management Areas shall be left in a natural, unmowed state.

d) Article IX, Section 9.15. Because an alternative street standard was accepted, add a section which specifically discusses the maintenance of the interior roadways (e.g. sidewalk snow removal along open spaces, driveway and street intersection culverts, weed mowing, pothole patching, etc.).

k) Add the following to Section 12.7, page 29: All light fixtures shall be arranged to deflect light down and/or away from adjoining properties and streets. Lighting fixtures must incorporate cut-off shields to direct light downward. Luminaires shall not be visible from adjacent streets or properties. Fixtures should be compatible with architectural and site design.

d) Page 27, Section 11.6, Exterior lighting. Add a sentence stating lights cannot be higher than the height of the building or 20 feet, whichever is less. Add the following statement: All light fixtures shall be arranged to deflect light down and/or away from adjoining properties and streets. Lighting fixtures must incorporate cut-off shields to direct light downward. Luminaires shall not be visible from adjacent streets or properties. Fixtures should be compatible with architectural and site design.

34. The owner shall sign a "Right of Entry" form, or other similar document satisfactory to the City Attorney, granting the City of Bozeman access to all Open Space areas of the subdivision, and dedicating an easement(s) for public utility purposes, which would be limited to drilling a well or wells for drinking water supply, on the final plat of the subdivision. The "Right of Entry" form shall designate that all wells shall be constructed so as to have a minimal visual impact.

It was moved by Commissioner Stiff, seconded by Commissioner Stueck, that the Commission approve the preliminary plat, requested by Don Hannah for Sourdough Creek Properties, under Application No. P-9339, to subdivide a 147.2-acre tract located in the northeast one-quarter of Section 25, Township 2 South, Range 5 East, and the northwest one-quarter of Section 30, Township 2 South Range 6 East, Montana Principal Meridian, as follows: 72.85 acres into 67 lots for single-family residential development, 6.18 acres into two neighborhood service lots, and the remainder in common space and open space, subject to the conditions listed in the previous motion. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Stiff, Commissioner Stueck, Commissioner Frost and Commissioner Youngman; those voting No being Mayor Vincent.

Mayor Vincent stated his absolute preference would be to place whether or not to have cable television on the ballot, however, he recognizes that would not be appropriate. He noted that private fundraising can be used to generate the balance of monies needed for a successful public access television program. He then recognized that not everyone in the community wishes to participate in or watch community access television, and his proposal to set aside 25 percent for parking acquisition and development is an effort to ensure that everyone in the community benefits from the fee.

Commissioner Youngman stated the ad hoc committee, on which she has served as liaison, has worked diligently for two years to develop the recommendations which have been forwarded to the Commission. She noted it has been a valuable process, and it is interesting to see the differences between this committee's report and the report submitted in 1983. She also noted that technology has been upgraded, and public access television could be valuable for future business development. She stated that people want better access to government and government information, and this would be one way to provide it. She stated that this proposal will not conflict with the plan to provide satellite access in the schools, but provides another avenue for educational opportunities.

Commissioner Stiff stated he does not support the committee's recommendations. He stated that not many people are enthusiastic about watching the City Commission on television, and he doesn't feel that spending over $100,000 annually for public access television is a good use of monies.

Commissioner Stueck stated that he talked to people at the recent National League of Cities Congress of Cities, and received a "mixed bag of comments". He forwarded his concern about levying a $1.00 assessment against city residents when county residents will be receiving the same programming at no additional cost. He also expressed concern about the types of controversial programming that could be encountered on a public access channel. He then stated that, because he can neither support nor oppose the committee's recommendations, he will abstain from voting.

Mayor Vincent noted that public testimony, from all types of groups, was very supportive of a franchise. He recognized the potential benefit to the business community, stating that providing the technology necessary for the community to compete for new high tech businesses is important. He concurred with Commissioner Stiff's comment that probably not many people will watch City Commission meetings on television, however, he feels other benefits can be derived.

It was moved by Commissioner Frost, that the Commission authorize and direct staff to pursue implementation of a cable television franchise fee, with 25 percent of that fee to be earmarked for City expenses and parkland acquisition and development and the remaining 75 percent to be used for public access television, subject to the following:

1. That the City begin negotiations to grant a non-exclusive franchise to TCI Cablevision of Montana, Inc., for the operation, maintenance and improvement of a cable television system for the vicinity of Bozeman. We further recommend that the City use a professional telecommunications negotiator and that citizen involvement be an integral part of the process.

2. That the franchise grantor (the City) recover its costs related to negotiating the franchise agreement from the cable operator. This includes negotiations costs, lawyers' compensation and the like. We further recommend that the term of the franchise agreement reflect the extent of periodic evaluation of the community's needs and the cable systems' ability to meet those needs.

7. That in order to establish a Community Access Telecommunications Center, a committee be appointed to research and oversee the planning for such facility, concurrently with franchise negotiations, to include community gateways to the global information network and a cable television station with provisions for Public, Educational and Government (PCECG) access channels.

Mayor Vincent yielded the gavel to Commissioner Stueck for purposes of seconding the motion. The motion carried by the following Aye and No vote: those voting Aye being Commissioner Frost, Commissioner Vincent and Commissioner Youngman; those voting No being Commissioner Stiff. Commissioner Stueck abstained.

Included in the Commissioners' packets was a copy of the minutes and responsiveness summary from the public meeting which was held on October 26, along with a copy of the summary from the Corrective Measures Assessment, dated August 1995 as prepared by Maxim Technologies, Inc.

City Engineer Craig Brawner provided a brief synopsis of the process involved to date. He noted that in 1993, the new landfill rules were implemented, and the City entered into a contract with Chen-Northern, Inc., which is now Maxim Technologies, for an assessment of the landfill and a proposal for monitoring its methane gas levels. He stated that the monitoring wells were installed and have been monitored. He noted that the existing landfill, which is nearing preparation for closure, and the new expansion, which was just completed, must both be monitored.

The City Engineer stated that monitoring of Bozeman's landfill, like many other landfills, has revealed a problem with methane gas in the groundwater. He characterized the methane gas as being at explosive levels, noting that measures must be initiated to control and remediate that problem, in compliance with the State's rules and regulations. He stated that, as a result of identifying the problem, City staff negotiated with Maxim Technologies to prepare recommendations for corrective measures for the groundwater, noting that to date in excess of $414,000 has been expended on the project. He indicated that the report was prepared in August, which was then reviewed and slightly revised. A public meeting on the report was conducted on October 26, at which the public was informed of the corrective measures assessment, the alternatives identified and the recommended method of correction. He noted that the Commission must now look at the assessment and determine whether the proposed alternative or another method of corrective action is to be adopted, after which the corrective action is to be submitted to the State for approval, then designed and constructed.

Mr. Pat Dunlavy, Maxim Technologies, stated that the existing landfill was started in the late 1960s, noting there was no licensing of landfills until 1978, and there were no regulations until the late 1980s. He stated that in the early 1980s, a couple of monitoring wells were drilled by the Soil Conservation Service, and in the mid 1980s concern about metals in the groundwater was identified. He noted that, as a result of those concerns, the firm for which he worked was hired, and he began to monitor the groundwater, finding nothing to trigger concerns. He stated that in 1991, the Environmental Protection Agency adopted the Sub-Title D regulations, which established minimum criteria for operating landfills, and those regulations became effective in October 1993. At that time, sampling of groundwater became required, with those samples being analyzed for specific compounds.

Mr. Pat Dunlavy provided a detailed review of the types of compounds monitored, noting that they include PCE, TCE and vinyl chloride, and the levels of compounds which are determined acceptable. He noted that additional monitoring wells have been drilled to determine the boundaries of any problem levels, stressing the importance of keeping any problems within the property boundaries.

A. No action. Under this proposal, baseline information must be established, and the groundwater at the landfill must be continually monitored for thirty years, and the landfill must be capped and revegetated. This option is unacceptable to either the consultant or the State.

E. Active Gas Extraction. This is the preferred alternative, since it will address the source of the problem. He recognized that, while the initial capital costs may be quite high, it is estimated that in five to ten years, the identified groundwater problems will be remedied, thus lowering the operations and maintenance cost estimates, which are based on thirty years. He noted that, since there are no well drillers of this type in the region, someone from outside the region must be brought in to drill the needed extraction wells.

Mr. Dunlavy noted that an active gas extraction system has been approved for the landfill at Missoula and, in fact, was installed during the summer and started about a month ago. He stated that, until the last two years, the connection between groundwater contamination and gases was not recognized.

Responding to Commissioner Stueck, Mr. Dunlavy characterized "blowing the landfill up" as an interesting thought, noting it would readily address the problem with gases; however, he cautioned that it would be extremely difficult to control the results of such an action. He then cited a recent incident at the landfill in Helena, which resulted from spontaneous combustion. He further cautioned that once burning begins underground, it is not possible to put the fire out.

Responding to Commissioner Youngman, Mr. Dunlavy confirmed that Alternative E may resolve the gas problems in five to ten years, rather than the thirty years identified in the report. He cautioned, however, that gases will continue to be the result of the breakdown of materials buried in the landfill so, while the problem will be reduced, it will not be eliminated in the next few years. He then stated that once this cell of the landfill has been closed, a cap of less permeable dirt is to be spread over the cell, and that should help to reduce problems. He noted that, unless regulations change, the new cell will be covered with a plastic cap.

City Engineer Brawner thanked Mr. Dunlavy for his presentation, characterizing it as a very abbreviated overview of a very technical issue. He recognized that the preferred alternative will cost the City in excess of $500,000 for capital improvements alone. He noted that the State has reviewed the corrective measures assessment and indicated they have forwarded no comments on it to date. He stated that the next step in the process is for the City Commission to approve the corrective measures assessment, as prepared by Maxim Technologies, Inc., identifying the preferred alternative for remediation. He noted that once the Commission has made a commitment, his staff will negotiate with the State on a corrective action schedule and begin construction of the facilities.

Responding to Commissioner Stueck, the City Engineer stated that the State has been asking City staff for a schedule and formal commitment regarding remediation, and asked that the Commission take action as soon as possible. He indicated that construction of the remediation alternative selected will probably be undertaken next construction season.

Public hearing - variance from Section 18.65.170 of the Bozeman Municipal Code - Brutger Equities, Inc., dba Days Inn - allow a two-year extension to meet adopted sign code requirements because of pending Oak Street improvements - Lot 6, Block 1, and Lot 2, Block 2, Tange's Addition (1321 North 7th Avenue) (C-9510)

This was the time and place set for the public hearing on the variance from Section 18.65.170 of the Bozeman Municipal Code, as requested by Brutger Equities, Inc., under Application No. C-9510, to allow a two-year extension of the deadline to meet the adopted sign code, for Lot 6, Block 1, and Lot 2, Block 2, Tange's Addition. The request is for the Days Inn, which is located at 1321 North 7th Avenue.

Associate Planner/Urban Designer Dean Patterson presented the staff report. He stated that the sign code requires all existing signs to be brought into compliance with the sign code by October 1, 1995. The subject property is located at the intersection of West Oak Street and North 7th Avenue, and its accesses are currently from North 7th Avenue, via a narrow access strip and via a driveway off the existing stub of West Oak Street. He indicated that the main sign is located on North 7th Avenue and it is rather prominent since the business cannot be easily seen from the street, particularly in light of recent development along this portion of North 7th Avenue. He stated that, while the applicant recognizes the sign does not conform with the existing sign code, he is concerned about removing the signage before West Oak Street is completed.

The Associate Planner noted that the westward extension of West Oak Street, from North 7th Avenue to North 19th Avenue, is scheduled for next year. When that roadway is completed, the applicant proposes to install a new main entrance from West Oak Street and new signage for the entire site. He noted that the applicant has requested a two-year extension for the existing sign, forwarding staff's suggestion that a one-year extension, with a possible six months additional time upon request, be considered in recognition of the possibility that the extension of West Oak Street will not be completed during the 1996 construction season.

Associate Planner Patterson stated that staff has reviewed this application in light of the three criteria for consideration of variances, as established by the Montana Supreme Court, and the comprehensive findings are contained in the written staff report, which was distributed in the Commissioners' packets. He reviewed these findings, forwarding staff's finding that the application complies with those criteria and a recommendation for approval, subject to two conditions. He then forwarded a suggested amendment to the first condition, which would state that if the West Oak Street extension is not completed within one year of the approval of this variance, the Planning Director may grant a six-month extension.

Ms. Ellen Saputo, Manager of the local Days Inn, stated the sign is between the car wash and the gas station, at the access to the motel. She noted that at one time, a sign in that location would have been very visible from North 7th Avenue, but new construction has limited that visibility. She noted that the wall sign on the motel was also visible from North 7th Avenue, but now enjoys only limited visibility to those traveling south on that roadway. She recognized that, with the new entrance from West Oak Street, a change in the orientation of the lobby area for the motel and a new signage package will be important. She stated that, because the impacts of the new roadway are not yet known, however, it is difficult to develop that package at this time. She then asked that the Commission consider their request for a two-year extension of the deadline to meet sign code requirements at this location.

Commissioner Stueck stated he is not optimistic that the extension of West Oak Street will be completed next summer, particularly since major trunk lines must be laid in that roadway first. He then indicated that he could support the proposal for a two-year extension or changing the language to require the signage to be brought into compliance within six months after completion of the road.

Commissioner Youngman raised her concerns about revising the condition to require compliance within six months after West Oak Street is completed because of the potential that the roadway might not be completed as quickly as anticipated. She recognized, however, that there is a recognizable linkage between completion of that roadway and changing of the signage for this property.

It was moved by Commissioner Youngman, seconded by Commissioner Stiff, that the Commission approve the variance from Section 18.65.170 of the Bozeman Municipal Code, as requested by Brutger Equities, Inc., under Application No. C-9510, to allow a two-year extension of the deadline to meet the adopted sign code, for Lot 6, Block 1, and Lot 2, Block 2, Tange's Addition, subject to the following conditions:

Public hearing - variance from Table 18.65.050.B. - Daum Industries for Main Mall - allow no more than 266 square feet of signage per tenant to be visible from one vantage point, as well as a 75-square-foot low profile sign at the center entry location - 39.46-acre tract known as Main Mall Annexation (2825 West Main Street) (C-9512)

This was the time and place set for the public hearing on variances from Table 18.65.050.B. of the Bozeman Municipal Code, as requested by Daum Industries for Main Mall under Application No. C-9512, to allow not more than 266 square feet of signage per tenant to be visible from one vantage point, and to allow a 75-square-foot low profile sign at the center entry location on the 39.46-acre tract known as the Main Mall Annexation. The subject property is more commonly located at 2825 West Main Street.

Assistant Planning Director Debbie Arkell presented the staff report. She stated that this application would essentially allow the existing signs on the Main Mall structure to remain. Also, it will allow a 31½-square-foot sign area on a 5-foot high by 15-foot long low profile monument sign to be erected essentially at the location of the tall, pole-mounted sign which has been removed with the widening of US Highway 191. She stated that under this application, the major tenants would be allowed to calculate their signage as if they were freestanding structures rather than part of an interior pedestrian complex. She noted that, for a store with 300,000 square feet of floor area, the permitted signage would total 400 square feet, which is the same as for an 8,000-square-foot freestanding structure. She indicated that under this application, signage would be limited to 266 square feet per major tenant, whic