The community development board is a seven-member citizen advisory board comprised of volunteers appointed by the city commission that fulfills the requirements of state law.

We meet twice per month to make recommendations regarding land use regulations to the Bozeman City Commission.

Vital decisions are typically not made here.

Thank you for joining us.

We welcome the presence of those here in the city commission room.

Before we start this meeting, I'd like to remind those not physically present here of the ways in which you can follow this meeting and provide public comments.

By joining us via video conference.

Sam Sagsetter.

Thank you, Chris and Sam.

Any disclosures?

I think our um our agenda is light.

Any disclosures from the board?

None.

Any changes to the agenda?

Okay.

Any public service announcements?

Go to the order.

Okay.

We'll get underway with our agenda.

Starting off with approval of the minutes from the previous meeting, I believe.

I need a motion to do so.

Sure.

Um I move to approve the February 2nd, 2026 community development board meeting minutes.

Second.

I'm gonna say no discussion.

Sam, could you uh do a roll call, please?

Mover Morrison?

Aye.

Second or Egggy.

Aye.

Board Member Delmian.

Aye.

Board Member Mitro?

Aye.

And Chairman Boyd.

Aye.

Motion passes how many we have?

Five.

Six, five, five zero.

Okay.

Action items.

Um consider cancellation of the spring break meeting, basically March 16th.

Um community development board meeting.

Mr.

Saunders.

Yeah, we normally meet on the first and third, and the 16th happens to be the beginning of spring break, which is often a very sparse time in this community.

Um if there's holidays, sometimes we'll punt to the following week.

Um in this case, we don't have any immediately pending items, and so would like to offer you the opportunity to simply cancel, or we could reschedule to the 23rd.

It's the preference of the board.

Any strong opinions either way.

Okay.

Do we have to act on that?

Um, it would it is advertised as an action item, so yeah, if you could put a move to the case.

Okay, we need a motion.

Can't cancel the 16th 16th.

Okay.

So moved.

Second.

Okay.

Sam, please.

Mover Egggy.

Aye.

Second or Morrison.

Aye.

Board Member Delmiune.

Aye.

Board member Maitro.

Aye.

And Chairman Lloyd.

Aye.

Okay, moving on.

Item F on the agenda, public comments on non-agenda items falling within the purview and jurisdiction of the board.

We have one esteemed guest.

Anyone online, Sam?

We have no one dialed in tonight.

Okay.

Okay, now we're to the meat of the meeting, which is uh board training on the review of zone map amendments and appeals of administrative decisions, hosted by once again Chris Saunders.

Yes, and I will be joined by um Greg Sullivan, our city attorney, who will join in at select moments to tell me what I just said wrong and to add in some additional uh information for the board.

So the roles and responsibilities of the board are prescribed in statute.

Two of those are the review of amendments, including zone map amendments to the regular um to the zoning map.

And also review of uh appeals of administrative decisions.

That's something that is a change from the prior law, which had a different route for appeals.

And so both of these have elements that are the same and parts that are separate, and so we thought it'd be a good thing to get some training in before you had an item at the dais in front of you.

And uh so that's the the focus of this evening.

Uh we're gonna start off with the zone map amendment process.

Uh we think you'll probably see more of those.

Uh we usually get a dozen or so uh zone map amendments a year versus maybe one appeal on average uh per year over the last 10 years.

So we'll start with the zone map amendment elements.

Um feel free to ask questions as we're going through.

Uh we'll stop for questions at the end of the zone map amendment stuff, uh, so you don't have to carry all any thoughts all the way through the whole thing and then go backwards.

So uh some of this will be uh refresher for some of our existing board members, uh maybe some new stuff uh for those who are recent additions.

Um the city's land use planning authority comes through the Montana Land Use Planning Act, which uh took effect for us on February 1st when we uh completed uh adoption and the effective date for our land use regulations kicked in.

They replace in their entirety all of our previous land use planning for subdivision zoning and land use documents.

And there's a lot of things that are very similar to what we have done in the past, but also some things that are very distinct and specific in the new process.

And I'll try to call out some of those differences as we go along so that we can catch on those.

So if somebody's looking at one of these, they're going to start at the land at the state law level and then at the local, and then we have additional information checklists and submitted materials and various things to help them be able to put in a good application that can let them come forward on their best foot to argue for their case.

So a big piece of Montana Land Use Planning Act is focused on the idea of identifying and mitigating impacts of development in advance, as much as you can reasonably predict.

There are things that are unique and going to be site specific, and you can't do a really high-level analysis on them.

But zoning map amendments are kind of in the middle.

So you start off at the land use plan, issue plans, zone map and text, and then subdivision and onto the individual site decisions, and I'll show you a graphic on that in a minute.

But as part of that, there are revised purposes and criteria for the regulations, and that's the basis then of making the decisions on zone map amendments.

Are we consistent with those original statutes?

For a long, long time, folks like yourselves and members of the public have seen a slide go up over and over and over again with green words on it that says these are the 12 things that we look at.

Those are all gone, and so it's all new green words, and we'll talk a little bit more about what those are are coming forward.

But there's a large thrust on that policy development ultimately approved and decided by the city commission.

This board has a specific role in recommending related to the regulations, and then we have other advisory boards that sometimes have a piece here and there, and we consult with them as needed.

So the general layout kind of works like this.

Land use plan, that's our Bozeman community plan, that's our highest level.

It looks at the big policy directives, aspirations of the community, issue plans, dive into additional level of detail.

That's something like a transportation plan, the parks plan, where it tends to be topic specific.

And then none of that is regulatory.

But the that information, the data that's there feeds into the process of developing the zoning regulations, including the zoning map.

And then the subdivision regulations kind of fill in the gaps.

Those tend to be things that are unique to the subdivision process, survey requirements, and things like that, more so than regulation of use or other kinds of things that tend to stay in the zoning.

Both the law that used to be in place and the law that is in place now requires our regulations to be consistent with the land use plan, and the nature of that is because land use plans are fairly high level, there's pretty much always more than one way to implement them.

There's a variety of policy choices that guide, but then you can take more refined consideration and choose options A through Z and figuring out what you want to do.

In both the land use plan and the zoning regulations and the subdivision regulations, the city commission is the final decision maker.

And what they're looking at first and foremost is do we have the process in place?

Do we have a planning commission?

That's you folks.

So yes.

Do we have a public engagement plan?

Yes, we do for any time we're going to go through a amendment process or adoption process of some kind.

That's opportunity for the public to comment and participate in helping to set those high-level priorities.

And then there is processes described for the adoption of the land use plan and the future land use map.

When we're talking about a zone map amendment, this piece is already done.

We don't have to go back and revisit that.

Commission's acted on it, it's settled.

But this is like step one.

If you're thinking about what is going on, how do we do, how do we measure it?

It starts off here and then moves into the next level, which is the authorization for local zoning regulations.

And when we start off with like the complete UDC rebuild that we finished off, we looked at a lot of detail in here.

Some of these things specifically influenced the zoning.

Some of them had more of an adjacency but not direct influence.

The population projections, for example, they're helpful, they're important for our long-range planning, but they they're not a driver in the regulatory space as much as some other kinds of policies or information that comes from land use plan.

But one of the things that's important in thinking about a zone map amendment and the review for that and how that applies to these conditions, is we don't have to go back and revisit every possible thing.

What we're really looking at with the zone map amendment is what's different.

So if we look at a zone map amendment, the population projections will not change, very likely.

So we don't have to go diving into that element of the land use plan really.

On the other hand, it may have some significant influence on the local services.

If we had a certain assumption of a demand for the future in a given area, and that's going to substantially change, then we're going to need to look at that with some care.

Other things that are adopted that are uniformly applicable, designed for street standards, protection for water courses.

You can go through a long list of those things.

But it doesn't matter what zoning district they're in, that same standard will apply.

So if it's a creek corridor and it happens to be Bozeman Creek, then there's a defined setback from the creek.

There's a defined set of this is what you do inside of that creek setback.

And it doesn't matter if it says M1 or R2 B or whatever thing might be on the map, that same standard will be applicable.

So as we're looking through here, we are going to be picking and choosing those things where what's really going to be modified versus what's going to largely stay as was originally assumed to be.

Montana explicitly prohibits it.

And so occasionally you'll have somebody that comes in and says, look, we have this beautiful picture, and it's going to be these amazing things we're going to build if you give us this zoning.

And they may be completely sincere about that, but we have no opportunity to say we will give you that zoning if you build that project, and then we'll take it away if you don't.

So if a proposal is to establish a RC district, then this board and the staff and the commission will be looking at it from the standpoint of anything and everything that can be in the RC district and the standards that go with it.

There was one project personally that I worked on back in 2006 and seven.

Big huge complex project, included annexation, zone map amendment subdivisions, site plans, and PUD.

And then the economy ate it in the recession of 2008.

But the zoning stayed in place for years and years and years because until you amend the zoning, that zoning stays present.

And so we always have to kind of keep in mind the full range of the scope for these things.

So diving into some of the substance here.

Who can start an amendment?

This is something that's modified in the law.

Used to be that this board could suggest an amendment to the commission or the city manager could.

That's now specified that it can be owners and individual owner and individual property, group of property owners, or the electors is the language that basically lines up with the initiative provisions in state law for folks to be able to bring forward a suggestive change.

So any of those three groups, and then the city commission is the last group who can initiate a change to the map or the text.

That could happen from any of those four.

So for example, the city staff maintains kind of a running list of where we see things that need to be updated in the code, maybe the law changed, maybe we just found out that something's not working the way we thought it would.

We'll need to go to the city commission through the city manager and make an ask that says we think we should modify the code.

This is the scope of what we think should be done at this time, and then the majority of the commission will have to say, yep, that's what we want to do, and they'll give direction to the city manager to get that process moving along.

The application content is always pretty consistent.

Applications for zone map amendments are much less complicated than for things like a subdivision or a site plan.

You're talking about a much more limited scope of change.

And so there's always maps.

They include information just to help figure out where in the community is this, what is the boundary that's being considered, and then application materials themselves, the document signature from the property owner, information about noticing that will happen, those kinds of things, and then they always have to provide some narrative addressing the criteria from the state.

And the city provides various forms and things for folks to help them understand and follow through and know the kind of content that they need to put together in their package.

The purpose of all of that material is to be able to demonstrate compliance with the adopted standards.

Whether it's a zone map amendment or not, it's still held to that to provide a factual basis.

There's a lot of emphasis in MLUPA on being able to make fact-based decisions.

Doesn't mean you have to know everything.

There's a lot of things in a zone map amendment where the details get worked out with a future development application of a subdivision or a site plan of some sort.

But it also helps to provide transparency.

So why is the government making a particular decision?

And then the staff report, the public hearings that are held, the findings that are made, all of that material moves forward in that public view so folks know what's going on.

So just an example of what one of those zone map amendment maps looks like.

You can see a physical location there, there's streets labeled, you can see the boundary put in place.

It's clearly saying what kind of a zoning district that they're seeking.

In this case, it was R5, and then what's kind of happening around the perimeter.

We're adjacent to Valley Center, there's some properties here or there, etc.

You can see that there's not a lot of detail on there as far as site conditions.

That's okay.

That is work that will be evaluated going forward.

It is typical that you have a single zoning district on a single parcel, but especially with larger parcels where they're bringing in new property during annexation.

It's not uncommon to have multiple zoning districts.

They're going to break it down through the subdivision process, and then the boundaries will match up more to the street layout and other other natural boundaries.

So the general flow of the review starts off, not surprisingly, with them submitting the materials.

That comes in.

Sam and some of our other staff help do the screening on that.

They look and say, all right, here's the required materials.

Did they respond to that?

If not, it gets called timeout.

We send them a note saying, by the way, you forgot XYZ.

They get a chance to supplement that application.

Once it has all those basic materials, it pushes on to what's called the DRC, the development review committee.

So that's the professional staff, planners, engineers, parks department, fire police, the whole crew.

And we're looking at all of those factors that we had the slide up there about, you know, what are the impacts on the local services and facilities and all the rest of them that are that are there.

Part of our job as the members of the DRC is to look and determine first of all, is the data complete.

Did they not only give us something that represented itself to be something, but it actually has the substance behind it?

So somebody gives us a piece of paper that says traffic study, does it have all the necessary bits and pieces that actually enable the engineering staff to evaluate the impacts of the additional development that might happen with this project?

Subsequent to that, excuse me, is what's called a determination of substantial compliance.

And we'll talk more about what substantial compliance is in a minute.

But that's kind of the core finding in all of this is that if this is the set of criteria that apply to this application, whoever's reviewing it at that stage determines that it does meet all the requirements that are there.

And then assuming that we have that it moves forward.

If we determine that it doesn't, yes, you gave us a determination of substantial compliance, but by the way, or excuse me, determination of completeness, but that traffic study showed that there was all these things that we're going to break if this happens, and you didn't tell us anything about how it can get fixed.

So we're looking here and saying, what are the impacts?

What are the consequences?

How do we manage those consequences?

Maybe those consequences are simply we have all of this development regulation that will happen in the future, and that's going to take care of it, or maybe there's additional data that needs to be gathered for us to be able to completely understand this and have the conversation with the public.

So that determination of substantial compliance is a really important element in this process.

Assuming that it's substantially complete, then the staff report gets written, the public notice goes out, and then it comes to you folks for a public hearing.

You also, in your findings, need to make that determination of substantial compliance, and we will help you with the wording for that.

And then your recommendation moves on to the city commission.

If the city commission says no, the process stops.

If they say yes, then it moves into the formal adoption language and goes through the ordinance process with the city commission before it takes effect.

So when we're running through this process, the first thing we're looking at, like I mentioned earlier, is the land use plan.

How are we matching up with the land use plan?

The first element of the land use plan that we're looking at is the future land use map.

If we're asking for a particular zoning district, those land use categories are distributed throughout the city.

There's a correspondence with each zoning district and each future land use designation.

So in this case, you can see one, two, three, four, five, six, seven different zoning districts could potentially qualify to go in this district or in this designation.

If somebody came in and said it's urban neighborhood and I want to do heavy industrial, we're going to say, stop.

We have to either have you change your application because M2 does not match, or we need to take a step back and have a conversation about the land use plan.

Do we need, is there a justification for modifying the land use plan before we move into that zoning change?

Each of those land use designations has a description that says these are the general characteristics of what this is.

That helps us to understand how those zoning districts match up.

Things like density, a variety of housing types, mixed use themes that show up in many, many places throughout the document, including most of these designations.

One thing you will not see in this is any kind of single home or single use type being identified as being more valuable than another.

Bozeman's consciously said, look, we value all of our forms of housing.

Everybody has different needs.

We need a healthy variety in order to meet all the needs of our public.

One related piece that's important about this is that because there's multiple zoning districts which can comply with each of this, we always need to remember that we're reviewing the application that's before us, not the other alternatives that could have been brought forward.

If the applicant wishes to back up and say, wait, I heard from the public comment, don't think this is going to be a good fit for some reason, then they can step back, make a modification, bring that forward again.

We'll we'll have that conversation.

But otherwise, if they say I want B1, then that's the project that we're looking at.

Not well, it would be better if it was RC.

So it's really tempting to say, well, but it would be better if, and honestly, maybe it would be, but that's not the charge that we have.

So moving on throughout the review process.

We also, this is an example from our transportation plan.

It's one of our issue plans.

And depending on the scope of the change and where it's located, these plans may play a significant role in evaluating those criteria in the state law about the impacts and then what we might do to mitigate those.

So if there's something where it's been identified, in this case, there's a general layout for the street network.

It doesn't try to give you two the inch kinds of measurements here.

I think if you probably scaled that out, those corridors are probably a couple hundred feet wide at least, wider than the streets are.

These plans typically get updated on a five to eight year cycle just to deal with the continuing rate of change in Bozeman.

In the specific case of this transportation plan, it was most recently updated in 2017, and they're starting the update again for it this summer in July, I believe.

So it's a constant constant workflow to work with our various departments throughout the city in keeping this information up to date.

So just a minute here.

One of the things sometimes that gets mixed up in the conversations is what the zoning map amendment really changes.

And the answer is the only thing that's modifying is the map itself.

All the rest of the words on the page that say here's a standard, this is a directive, this is a criteria, those are not modified.

So all of these different topics stay in place and will carry forward unless amended by a text amendment over time in working forward.

So when we look at our zoning map, Bozeman's is considerably more detailed than many communities have over time.

Bozeman has had a policy of welcoming a diverse zoning map where you can have a variety of things in close proximity.

The land use plan has looked at and considered ideas for this.

We've put regulations in place in the zoning standards themselves, for example, to talk about where we should put zoning boundaries so that we lessen conflicts, transition standards for building heights to lessen potential conflict on the edges, those kinds of things.

And that's fine.

We don't uh don't mind that at all.

But the fact that one person has chosen to use a piece of the capacity doesn't inhibit somebody else from using a different piece of it within the same district or an adjacent district.

And that kind of shows up with this little slide here.

For a while, Bozeman's had a policy that we call the hard urban edge.

Um, where we understand that it can look kind of dramatic between in the city, not in the city, right on the edge.

That's been a deliberate policy choice.

Um partly we do that to avoid impediments as the community continues to move outward.

Um, if we have very low density developments, especially at the rural levels, that can make it very difficult to get utilities, other kinds of services connected through.

And some of the visual differences, personal opinion time, are greater than they are in reality.

So if you look in the Gallatin County zoning district, they have two zoning districts, AS, which has a one in one home per 20 acre standard, and then an RS, which is one home per acre standard.

So those two districts next to each other are 20 to 10s.

So really significant in a numbers perspective.

If you look at, say, the RA district in Bozeman, which is our lowest density, minimum density of six units an acre, and say RC or R D, which might run into the 32-ish homes per acre, that's a six times difference.

So even though you know, just from a pure numbers standpoint, it's very different visually, there's quite a bit of difference.

And so just kind of keeping in track some of those differences and what they do and don't mean in how things work, I think is helpful.

In this case, the the image on the screen there, the little dashed pink line there is the city limit.

And so you know, somebody's come in, they've subdivided, they've built an urban level urban level development that is adjacent there.

You can see there's a trail corridor along the creek, and then the adjacent property might not ever do anything.

That's up to the landowner's choice, or they may decide to annex and pursue something.

In the meantime, it's set up to work either way.

So a couple of things that are in the code also that I think are important to consider.

38200 is the division that sets up the zoning districts.

And there's two paragraphs I want to point out.

This one here, presumption that development consistent with the standards of a zoning district is not detrimental to adjacent uses within that district or a different district.

So a lot of the work that went through the UDC was to try and think about in advance and put a protection in so that there's not a huge clash on those edges.

Does it mean everybody will be happy?

Absolutely not.

We can't guarantee that under any condition.

We have put a lot of different standards in there, and some of those things like you know, minimum open space and park requirements, uh, wetland water course protections, um, setbacks, uh, maximum heights and ways of transitioning, all those kinds of things, in part are there to help deal with those edge conditions and help them to work functionally.

So if somebody is at the podium saying A cannot be next to L.

Appreciate your opinion.

The official policy of the city is actually they can.

Whether that complies with all the rest of the standards that are applicable, that's another question, but at least in that one aspect, there's not an automatic this cannot be next to that.

The other piece that often comes up is what does it mean when a zoning district is depicted on the map?

So in the blue, there is saying this is what it does mean.

It means those uses we expect to be okay if they develop following the rules.

Pretty simple statement.

The next piece in green is what it doesn't mean.

So we're not saying the infrastructure is there, we're not saying we're going to approve any particular project until they have gone through all of the necessary steps, they have demonstrated all the necessary compliance.

So you can have something that says whatever zoning district, and it does not authorize them to build two sticks on top of each other until there has been whatever is the appropriate standard review taken care of and put in place.

Mechanics on this public notice is a really important part of the zone map amendment process.

Some of this is outlined in statute, some of the things we need to do in Title 76 with the state.

We've implemented that with division 730 in the UDC, where it outlines the substance that goes in the notice.

Goodbye.

What kinds of things are relevant to the distribution of that notice?

The applicants have to provide a list of all the property owners within a certain distance.

The city prepares the notice, that notice is distributed by the applicant.

They have to give us a certification that they've done all of that, they've posted the site.

So there's a lot of different ways where we share this information, as well as some additional items above and beyond what the state requires.

So our community development viewer that shares on an ongoing basis the work that's happening throughout the city.

There's no requirement in statute for that, but we found as a community it's highly valued, and so we support that and share information that way.

When we are looking at mailing, the UDC added 50% increase in the distance for which we do the mailings.

It used to be for a long time at 200 feet, with the heavy emphasis in the Montana Land Use Planning Act on information and discussion at the policy level, which is part of the zoning level for zone map amendments.

We felt it was worthwhile.

Commission agreed to expand that to 300 feet.

So all of the property owners in this boundary get an individual notice mailed to their address of record with the clerk and recorder's office.

Shows up on you know things like the agenda for this meeting that we're going to do a zone map amendment.

Here's the stuff.

So all of that kind of information pushes out to the public.

One thing that's a significant change, and this is not limited to MLUPA, but for a long time the state had a piece in the law that says this kind of person can protest and object the adoption of the zoning.

Depending on county or municipal zoning, there were different consequences, different numbers of people and how you did all the math.

Between the Montana Supreme Court saying, I'm sorry that's illegal, and the state legislature saying we're not going to do that as a matter of policy, there is simply not a zoning protest provision at all anymore.

That's something folks are pretty accustomed to.

And so I anticipate you'll probably hear some folks standing at the podium at some point or another saying, but I protest.

Eventually, what comes up on the slide is something that looks like this.

This is a we will always give you a recommendation.

You can choose to use this language or not.

One of the things that we do need you to do, regardless of how you choose to word your motion, is to make sure that the findings that you're making are very clearly stated.

So I am making this decision because dot dot dot.

If you wish to reference to the staff report, I concur with the findings in the staff report.

That might be all you need to say.

If you wish to say something that's different than the staff report, thanks for the information, staff.

I think it goes this direction, and then explain yourself, that's okay too.

We just need to make sure that the city commission first, and then ultimately, if it gets that direction to the courts, they can see what was the consideration being made.

Again, you'll you'll hear us harp on this a million times in your course of service, but transparency, openness, consistency with this with the statutes are all super critical because one, it makes good decision making, and two, um, if something gets challenged, these are all done on what's called on the record, meaning these are the words, this was the decision in front of the the information in front of the decision makers.

That's what the judge looks at.

You don't get to add in a whole bunch more stuff to say, well, what we were really thinking was more stuff.

For my benefit, maybe others.

Findings, can you define that for me?

Are they facts or their opinions or something in between?

I'll take a shot at that.

Go for it.

So a finding a fact or a statement of fact in the findings should be factually based.

It may involve analysis based on this information, looking at this standard, I concluded X.

If you have a staff report that you're referencing and you hear public comment, and to your earlier point is you make a motion and you add to the findings, what is my criteria for adding to the findings?

Depends on which criteria your findings going to apply to.

Okay.

So for example, the primary finding under MLUPA for designating zoning is substantial compliance with the growth policy.

So you're going to have a whole bunch of stuff from the staff on their analysis.

You're going to hear a lot from the public, perhaps on why you think the application does not comply.

So your task is to look at what the staff did if you agree with that.

Say, I heard what the staff did, and I agree with that analysis on substantial compliance with the growth policy.

Your task is also to hear what the public is saying about why they think it might not, then your task is to digest that public comment, and then if you think some of it's good, and I'm going with you, but some of it you don't agree with.

Your task is to make statements on the record, that's what the finding is as to why the things the public said do or do not comply with the growth policy.

So the public comment is incredibly important because you can't just be like, I don't really am not paying attention to what the public has said, and I'm only going to go with what the staff had said.

You have to put findings on the record about what the public said.

So you have to do that analysis and then make your own findings.

What the public is saying is part of the record, and you have to address those elements in the record.

Yeah, so part of the presentation from the staff, for example, we'll put some slides up here, and we'll say, all right, application came in, here's a general location, here's the applicable growth policy, here's the criteria, here's our analysis.

And then there will be a slide that says, and this is the comment we've received so far, right?

And then if it comes in far enough in advance, we'll address it in the staff report as well.

Sometimes things are coming in last minute, and we can't.

So I don't think what you have to do is you know, parrot back whatever you've heard.

What you can summarize and say, hey, what I've heard is concerns about ABC and how they might affect PDQ, right?

And then you've summarized, you've identified that you've been listening, you're paying attention, and now you can say, having heard that and considered it, I conclude whatever it happens to be.

I agree with the staff, I think there's this other issue, you know, whatever it happens to be.

Um, and then you've made it clear that it's open, it's being considered, um, you're being thoughtful, all the factors are being brought into consideration for prior to your decision.

And typically the motion gets made, and then you move into discussion.

Um positive, it doesn't mean that you're automatically gonna vote in favor of it.

We typically will advance a positive motion because it's usually easier to know whether it passed or not.

Um if you really absolutely hate something, then you can say, you know, I've looked at this stuff, and you can adapt this motion, you know, and I move to recommend denial.

Dot dot dot because dot dot dot and fill in that information so that it's it's good and clear.

Can I add more?

Please to that.

So uh a positive motion that doesn't get enough votes, all that means is the positive motion didn't pass.

It does not automatic automatically mean that the application is denied.

So I'm gonna let that sit for a second.

So parliamentary procedure.

Um what MLUPA requires of you for zoning, and I think for subdivision regulations, is you have to pass a recommendation on to the city commission.

So we can work on this motion.

If you're rejecting the application, that's in the statute as an option.

So if somebody comes in and proposes a zoning that there's no way these guys are saying we don't think it complies with the growth policy, you guys are hearing from the public, your own instincts, it doesn't comply with the growth policy, you're making good recommendations.

A positive motion is to reject the application.

It's not just I vote not to approve.

That's a negative motion.

The positive motion is what is the affirmative action that you're recommending the commission take, that is reject.

And then you get a five-one or whatever vote, and that's what carries on the recommendation to the commission.

And the other part of this is there are schedules for all of these applications.

We have advertised those schedules, and sometimes it's necessary to adjust those schedules.

So if something's just really totally going haywire, continue.

Just say, we're not prepared to do this, we have the following questions, you know, we need some time to think about it.

We're going to continue to and then identify the date in the future, and then we'll carry that forward to the commission and say the community development board wasn't ready to give you a recommendation.

We're going to shift the commission's decision from whatever day to some other day.

So we try not to do that, but it's certainly an option.

Um there's opportunities to explore these issues in some depth as needed.

Ken, please.

So I suggest to the city commission, take your time, it's okay.

There is nothing in the statute that would mandate you, uh, make a decision on any specific night on something that's super complex.

You are not required to do that by law.

So if you're looking at a zone map amendment, either annexation or something that's already in the city, you can take your time.

Um something that Chris had shown earlier is important.

Zoning is a legislative act.

That doesn't mean you are free to talk to anyone about that at any time.

So we asked the city commission that while technically zone map amendments are legislative in nature, you sort of think about those as somewhat soft lowercase J judicial, especially if you've closed the record before you take a break and would come back at a later time.

The public does not understand sort of that mode that you're in, and so they're going to approach you at all kinds of moments in time and want to bend your ear about the public hearing that just happened where you close the record.

So my suggestion to you would be to hear them out for just a couple seconds, find the moment in time to interject and be like, hey, we close the record on this.

Honestly, you can go back and review what was done during the hearing.

I can't really talk to you about this because we're kind of in that mode.

Like my preference would be that you treat zone map amendments as if they're essentially a judicial exercise because of the importance of how MLUPA requires the decision to be based on the record.

And some of the, you know, we've we've all been there where oh, I didn't hear that, right?

And you're finding out that something else happened on the side of some decision that got made, and we're thinking, wait a minute, I got I got cut out of that conversation.

It doesn't feel very good.

And so it's as much as possible, we want the conversation either in writing, so it can go up in laser fee should be shared with everybody, or here at the podium where folks everybody gets to hear the same stuff so that everybody understands this is why the decision was made.

So if you have folks who are coming up to you, you know, the hearing hasn't even started yet or whatever, by all means, you know, hey, I'd love to hear from you.

Um would you please send that so all of my other board members can also get the benefit of whatever they have to say.

So when you say the records closed, that's like when you continue.

You do a bunch of stuff and you say, okay, we're done with doing public comment, and then there's this period of time, it's like purgatory before you act on that.

Just leave that alone.

So good question to clarify.

So imagine a scenario where you're having the hearing because these are public hearings.

Um you've heard all the public comment, the applicant, the staff is gone, the applicant's gone, you've heard all the public comment, it's super late at night.

You decide, hey, we're done with the public hearing, and let's just come back in a couple weeks and start deliberating.

That's you've closed the hearing, you've established the record.

Yeah.

Okay.

So supplementing it afterwards can be very problematic.

Yeah.

And then the public, right?

The rightly so the public doesn't understand.

They're gonna want to like send something in thinking you're going to consider it again.

But because of the technical requirements of MLUPA, you gotta sort of figure out how you sort of withstand that and not open the door to that.

It felt like we sort of skipped around that during some UDC stuff.

Right.

Well, the UDC.

I mean, the UDC is a little different, but it's similar concept.

Yes, I mean the UDC is legislative.

Yeah.

And until you are done with public comment, like in that process, it was very iterative.

You guys had, I assume, a lot of different sessions where you talked about it.

Um that the concept of treating uh a zone map amendment as judicial, in my view, does not apply to text amendments.

It's a different thing.

Yeah.

And either at the as the chair, at you know, when you've closed the public comment, you can say something from the dais, or if somebody just comes up and is visiting with you.

Um this board's done, the commission is absolutely still open for business.

Yeah, so they're absolutely welcome to come in, speak at the commission meeting, send in written comments of their choice.

Um so they're they're not cut off from the process, it's just this stage has closed a certain step in its process, and it now it needs to elevate to the next part of the process.

Yeah, um with regard to positive and negative motions.

Um, is the recommendation slightly different to the commission?

And what I'm thinking and wondering is um so the applicant has submitted an application, they're basically saying we've looked at the code, we believe this meets it, and we're entitled to an approval.

Um it seems like if you make an affirmative motion to approve it, because they're asking for approval.

If it fails on a tie vote, does it does it matter with if whether that's the commission versus here?

Because if you move to deny that application and it fails for a tie vote, at least at the commission, they've said, hey, we submit that this is worthy of approval.

And if a motion to deny it fails for a tight vote, you haven't really I I think it works both ways, actually.

So uh an affirm what I had said earlier, an affirmative motion to approve that fails.

The only thing that legal effect I think is that that motion has failed.

You haven't yet maybe made an affirmative decision on the project.

So I'm encouraging folks to say, okay, that failed.

We didn't approve it.

So what are we doing with it?

And then the next motion is I move to deny.

And so I think it goes both ways.

If you lead with the denial and it doesn't pass, I still think you're in that quandary about what is the effect of that vote on that motion.

I think forever we've just assumed that a positive motion to approve that fails is denial, and I'm just trying to be really careful about what are we actually saying about the application itself.

Right.

And I I want to be clear for the landowner who's made the application, and so their rights under their ability to seek judicial review, we're really clear about the effect of the decision.

Well, this body makes recommendations, and so whether I mean if it's ties, if it's a tie vote, it's essentially a non-recommendation, but for the commission making a decision.

Yeah, and I I see that distinction that there is another level for these legislative quasi-legislative acts that you take.

I think under MLUPA, because it has a specific language about what you can do.

I would just encourage the staff and encourage you to think about following that very specific language in the statute.

And it says the planning commission shall make a final recommendation of the governing body to approve, modify, or reject.

That's what the statute says.

So my suggestion would be do what you can to follow that and then make it clear to the commission what your recommendation is.

If you don't like the proposal, move to reject it.

Right.

But I guess I'm just trying to just talk about what's just say we have a meeting, we've got six, or we've got four.

And it goes the motion to reject is two to two, the motion to approve is two to two the other way with people maintaining their position.

If that were to go to the commission, I mean, regardless of our recommendation, if the commission has only four and it fails two to two, is the resolution essentially well, you gotta wait for your fifth commission to get back and break the tie.

Yeah, I so I'm by no means suggesting that you guys just like spin in circles, right?

Like, don't do that, right?

If you got a motion to approve two to two, right, a motion to reject two to two, you're done because there's another body that comes after you.

If the commission's voted two to two, we pull out their rule of three, and then the absent commissioner needs to be watch the hearing, come back, make the make the tie breaking vote.

Yeah, yeah, I'm not suggesting I don't want you guys to be like, oh, we gotta sit here all night and just lobby each other and see if we can get somebody to change their mind.

Not at all.

Right.

There will be a point where you're like, okay, we're done.

Yeah.

But as Greg is saying, you're not limited to one motion either.

So it's certainly happened before where somebody makes a motion and it doesn't get a second.

Or somebody makes a motion and a second and it fails, and then people are going, now what do we do?

Well, what you do is you make another motion.

Um until you feel like you've used the word affirmatively made a recommendation, and you can clearly say this is what we're suggesting to the best of your ability.

And if that takes more than one motion, then it takes more than one motion.

And I don't want to drag this out, but I do have a couple questions about this process.

Um I think when it when it comes to making findings that support a recommendation, let's let's imagine there's a zone map amendment coming, and I really don't like it.

It's gonna be the end of this neighborhood that is cherished.

Um is it my prerogative as a board member to find some element of the application that in my view I can provide analysis that demonstrates it is in contradiction to the um the growth plan and make a finding that says, well, in my analysis, like XFAC means that you know it's not in compliance with the zone map amendment, therefore it is not substantially compliant and um doesn't meet our standard, and I use that as a basis of a motion to recommend denial.

Is that within my prerogative?

Go ahead.

Um I'm gonna say one thing and then turn it over to Greg.

The language that's on the screen is that what a substantial compliance means for a zone map amendment.

And so I the italicized words when taken together, I think are really important because you're looking at the entire thing, the likelihood of every single possible thing being you know perfectly aligned, pretty long shot.

Um we're voting on the project as a whole.

If you think it honestly is broken that badly, then do put that on the record and why.

Um but if it's you know it works for 99% and 1% isn't ideal, yeah.

That's gonna be pretty hard to use as a basis for a denial.

Yeah, so I want to talk a little bit about like what we do in our office.

We protect the integrity of the decision that the city makes.

We're not suggesting to anybody that they make a decision one way or the other.

So what I suggest to the city commission and will suggest to you guys is that you really think about the record that you're establishing when you're making finals, and how robust can that be?

The more robust that explains the rationale for your decisions, the more defensible it is from my view, and what we would end up having to deal with, and also more explainable to the public, right?

So, as Chris had mentioned, if you find one nugget of the community plan that you're like, there's no way that one nugget is so strong that even if there's other elements of the community plan that arguably the project or the zoning meets, I'm not going to tell you you can't rely on that one issue to say no.

Right.

However, I think Chris's point is a good one that if it's only meet not meeting one, be very careful about how much weight you give to that because of the way that MLUPA is structured, that when taken together, the legislature is asking you, you're looking at the entire land use plan, and you can't just pick out one piece.

So Mark, I don't I hope that's kind of helpful about like when you're analyzing this and trying to make findings.

It is helpful, and I guess if I understand, like imagine that we make recommendations and deny based on some very flimsy findings, city commission um finds those finds that compelling, they follow our recommendation, they deny it based on some very flimsy findings, who would then understand that the like the applicant they would have recourse to the courts, and those findings would come into a legal proceeding, and if they were in fact quite flimsy, it might result in the court overriding.

It could be, it's a pretty big challenge.

It's a pretty big lift for a landowner in the way that this organization makes its findings, it's a pretty big lift for someone to challenge a land use approval.

Like the nature of arbitrary is a tough lift for somebody to make a challenge on because you guys in the city commission, along with the staff, are very practiced and making robust findings about compliance.

Yeah, I think Mark's example was maybe the opposite, would be a staff report does the analysis and says you can approve, and and I think I think what he was positing was some flimsy findings to deny that the commission then also latches on to.

Yep, and Mayor, we talked about this, right?

Like it's clear the commission knows, and I would encourage you guys to think about this way, that if you got staff recommendations, staff findings in support of something, and you're going the other way, do not adopt the staff report and its findings.

That's the first step.

Because that will completely undermine, you just have to realize right away that yes, maybe there's a few things in the staff findings that are especially compliance with the growth policy that are okay, but you better make your you gotta you got that obligation to make your own findings about non-compliance.

Yeah, you know, one, two, five, ten different goals or objectives in the community plan that you got to speak to.

Yeah, and we're we're not in any rush.

You know, if it if it takes you 10 or 12 things that you need to call out to build the rationale for why you're making your recommendation, okay.

That's not a problem.

We can do that.

I've I've read the court cases, quoting the staff as the greatest planning minds ever to walk the face of the earth, and the stupidest morons who ever walked the face of the earth.

Same attorney.

Um, just depending on whether it argued in favor or contrary to the position you want to take.

So they're very good at picking and choosing and trying to find bits where well the city disagreed between itself between here and there.

So being clear helps a lot.

And I another thing, like substantial compliance, especially in terms of what the public is saying to you, do not ignore things that might not comply.

If you're getting public comment and you agree with it, talk to those things that you would think don't comply, it's okay.

Because what it's demonstrating is your ultimate decision when taken together, is well balanced and you consider everything.

So just because you might think something doesn't comply, don't shy away from it.

Speak directly to it, and then make your analysis that when taken together, here's how I'm going.

If you guys give us those kinds of findings and we get challenged on it, it would be great.

Yeah.

Just the other mechanics on this, uh, the board members who've been around for a while know.

Um we always do a motion, and then there's that second opportunity for discussion, and then there's the the roll call vote.

Um, the the roll call votes um not in statute, but it is in our own local regulations for making votes.

And um, one thing that has occasionally come up is if you feel you have a conflict of interest, don't be telling us that when it's time to make a vote.

We we the staff really need to know that, you need to know that well before the meeting ever starts.

So if you have read the materials, you think you have any kind of a conflict, please get in contact with the staff.

We will help you sort that out, make sure that you're comfortable with where it is.

But if you're not conflicted out and you're present, you're obligated to vote.

It may be really, really hard, but it has to get done.

That's part of the job.

On the ethics thing, so you guys meet on Mondays, like I'm sitting upstairs all the time.

If you you might not know that you have a conflict until an hour before, get a hold of him, he'll call me, and we'll help you work through it.

I know that like it could just show up like right then.

So I'd rather that you sort of like took a time out, even like waited for a minute, talked to Chris.

You guys can try to get a hold of me or somebody else in the office, and we can help you resolve that right away.

So, kind of the last couple things.

Um issue that pops up, especially in the public discussion from time to time is spot zoning, and um to a certain degree, that's the summation of the presentation right there.

It's his problem.

But because we know that folks like to understand what's going on, spot zoning is really it's a creation of the courts, it's not in the law from the legislature, and they've said, look, it's it's basically a matter of doing good law.

And these are the kinds of factors that get considered when somebody's asking the city attorney, hey, is this spot zoning?

Uh it really hinges on compliance with the land use plan.

If it is, then there's been the public dialogue, there's been the balance of issues, um, there's been all the open thinking that's supposed to have happened, and so it's gonna be really hard to get into a spot zoning issue.

So for this body, your focus really hinges on that.

Does it comply with the land use plan?

And if somebody wants to argue about spot zoning, then we'll let Greg sort that out before the city commission, but this body doesn't need to spend much time on it.

Yeah, thanks.

I mean, what I've heard is yeah, essentially, people will focus on the singling out of a parcel and the different how it differs from the surroundings, as if that is the definition.

Yeah, and like clearly it's not.

You could have something that is singled out, it could be a small parcel quite different from the rest for the very good reasons that are set forth in the land use plan, which is a rational basis, and that is the public good.

I mean, that's the whole point of the plan, whether it's about diversity of housing, needed density, transportation, establishing nodes.

I mean, so those are the kinds of things that would let us even a small single parcel be quite different from the surroundings.

The classic case for that is we're gonna zone that piece of property for a fire station.

Right?

Absolute public good.

We can show all the documentation for why that's a good thing.

You know, we've got lots of language that says good services, safety, all this, all that kind of stuff.

It's very, very different from the adjacent uses, but it's there for a very good reason.

So exactly.

There's like a bunch of things that I think are could be helpful for you guys.

One is people are gonna stand up, and I've seen it time and time again where they tell you you can't approve this because it's spot.

What I'm encouraging by that previous slide where it's a legal issue, it's not a criteria for your evaluation.

So I don't even think you need to take that on at all.

Right, just stick to the factors, stick to the factors with the growth policy and what the staff has presented.

Uh I'm not saying you should ignore it, but on a zoning issue, that's gonna flow to the city commission.

And if you're finding, so just think about it that way.

On that first factor, which is singling out as a single parcel of the 15 to 20 spot zoning cases that the Montana Supreme Court has decided since 1974 when the low decision came out, which is what spot zoning was based on, sort of, as Chris said, the court established this test, looked at that low case from the early 70s.

All of those cases, I think are happening, the majority are happening in rural parts of the state.

And the sort of preeminent one where spot zoning was found is the highwood generating facility just north of Great Falls.

I don't know if you guys remember this from 15 years ago or so.

Right.

Agriculture, these people, the the utility people came to some uh farmers and said we want to change this from agricultural to industrial, right in the middle of all of that great agent on the north side of Great Falls up the Hill.

And the Supreme Court looked at it and said, that is sort of classic spot zoning.

I don't see that you can have spot zoning in a municipality.

If Chris can go back to that map, right, if you look at that map and you just sort of looked at it only through that simple lens of spot zoning, you go, well, there's all kinds of single parcels out there that are zoned one thing or another right next to some other zoning, whether that's low density next to high density, residential, or residential next to commercial, or even commercial next to mixed next to um manufacturing, the nature of a city, especially the city, the Bozeman is diverse uses spread throughout the city.

And so all that being said, when somebody says spot zoning to you, focus on substantial compliance with the growth policy.

If you go back to the slide, those last two factors are analyzed together, and the Supreme Court has clearly said if you're finding compliance with the growth policy, it's not going to be spot zoning.

This is kind of what you were getting at.

People are going to say spot zoning, spot zoning, okay.

And just maybe one more thing.

So we're paying attention, our office is paying attention, these guys know how to look for spot zoning too.

If there is a spot zoning question, it probably is never making it past adequacy.

It'd be hard.

Right.

And so when you have all of those implementing districts, if somebody is proposing an implementing to zone it to something that the uh future land use map doesn't designate as an implementing district, if we let that all the way through the process, maybe we're getting closer.

But any of those implementing districts that are called out in the future land use map and in the community plan, it's gonna be a hard test to say if you pick one of those, it's gonna be spot zoned.

It's gonna be hard to do that.

Just ask a point.

Are there are there other elements of the of our regulation that would be barriers or impediments to say a landowner is a parcel that's zoned RC and they think that it would be a better implementation in the community plan if it was zoned RA, or they just want it to be zoned RA?

Could they bring a zone map amendment for a single parcel and say, well, it's still same employment district, it's residential.

Yeah, they could.

Um the number of times I've seen somebody down zone a parcel is a very small fraction.

Um we certainly could.

Um honestly, one of the uh intentions with some of the changes in the UDC recently was to get the landowners to think a little bit more carefully before they submit their applications.

Because what we were seeing is somebody come running in and saying, I want the everything zone.

I have no intention of ever using it, but I want the everything zone, and then we've got to do all the infrastructure work for the everything zone.

And the neighbors are all wound up about the everything zone.

So let's not do that.

Let's figure out what you honestly want.

We'll happily work with you for whatever that is, and then we'll test it against all the various criteria, and then we'll all be in a better position.

So I'm hoping that there will be less situations where someone comes and looks at the map and says, How in the world did that, you know, it built this much out of that much of all of the what you would normally expect?

Um I'm gonna join your hypothetical for a second, right?

Or it's a zoned RC, and somebody says, I want my single household to be RA because I'm never going to develop it as RC, right?

Why they would ever do that, I don't know.

I don't know, but maybe somebody would do that.

Um does that substantially comply with the growth policy.

You might make a finding that the answer is yes, right?

It's an implementing district, the neighborhood or the residential land use designation.

I would never tell you guys now.

You got to analyze it for spot zoning.

If you're again back to that thing, if you're making findings of substantial compliance with a growth policy, we're going to defend the integrity of the commission's ultimate decision.

I think what you guys should focus on, is that really a good idea?

I'm sure there's other elements of the community plan that you could look at to say it doesn't comply with the community plan, and then make those findings.

Yeah.

Yeah, the future land use map is step one in the screen, but certainly not the last step when we're looking at implementation and compliance with the growth policy.

So we're officially in the questions and answers on zone map amendments.

So anything that you might have that you haven't brought up yet.

You mentioned the green text that we always refer to.

What's the new green text?

Okay.

And then the one that stuff that tripped me up was economic development.

Yep.

And because that partly, I think about growth and upward, and can you expand on that briefly?

Sure.

Um, we get these from the state, we didn't write them.

Um, but fundamentally what we're looking at is appendix B in the land use plan.

And it goes through and it analyzes each of these and says, this is how we deal with this stuff.

Sometimes it makes reference to a uh issue plan that's in place, or it may directly call out elements of itself.

Um so in this case, let's say somebody comes in with a zone map amendment, and they're saying here's this large area of uh, you know, it's 20% of the city's future growth area for employment, and we want to make it a swim park.

You know, we would look at that and say that has a significant consequence in the future ability of the city to grow employment, uh, and then would you know have to obviously go further than that, but you know, we'd look at those kinds of consequences, or are we adding something where you know the last um uh economic development strategy said that we are short on this kind of land use that supports our economy, and somebody comes in with a proposal to add some of that, then we would absolutely look at that and say we see a link between this standard and that kind of an application.

So, Chris, could you get out of the PowerPoint for a second and pull up 304?

Sure, because I think for you guys, what I just want to, because you're gonna see these, and just sort of for you guys to have a good appreciation of how this statute is put together.

Because as Chris had provided that slide, there's substantial compliance with the growth policy in one color, and then there's all the green things underneath it that follows the structure that's in the statute.

So, right, prior to you making a recommendation on a map, you have to do A, B, Contus, public comment, right?

There's an affirmative obligation to respond the public comment, and then C has one through seven, and those are all the way I read that statute, those are all the things that when you're thinking about substantial compliance with the growth, the community plan, the way that that statute is structured, including whether that new zoning will accommodate housing, look at the strategies from the development of housing, those are the things that Chris had listed in green, following what the statute says again, it's all under that substantial compliance mantra.

Look at the strategies from the development of housing.

Those are the things that Chris had listed in green.

Following what the statute says, again, it's all under that substantial compliance mantra.

The staff report is going to list one through seven.

Right?

Yeah.

And not surprisingly, there's some headbutting going on here in the law.

If you look at C6 and C7, excuse me, C5 and C6.

We are maximizing the potential use of natural resources.

So mine it, cut it, farm it, all those things.

And then number six is avoids impacts to the natural environment.

So there's some push and some pull where we're very likely to hear folks at the podium saying we think it's going too far this direction or that way.

And so that's gonna have to get analyzed.

Some of that's where you can look at it and say, as the city, a determination has been made that adequate protection of a water course is section this, right?

You don't have to go back and redebate that.

Um, if there's a desire to say, do we have an adequate standard in a given area?

That's a conversation that absolutely can be had, but it's outside the scope of an individual application review for a zone map amendment or a subdivision or something else.

We debate the policy at the policy level, and then we apply it.

So that's whoops.

That's that's where those came from.

And so that is essentially this is the new decision criteria that replaces mandatory criteria A through D and look at the balance of E through K.

Yep, yep.

And in that statute, I can add targeted economic development, which helps my brain a little bit.

Right.

Okay.

Yeah.

And it's going to be very interesting, honestly, to watch over the next year or so as the other communities in the state finish the adoption process for their land use plans, and we can all take our various books and line them up and see how we all did this because we're all largely flying solo as we're going through this.

And so it'll be very interesting to see how far each community digs into the detail.

I would imagine, for example, that Poulson probably doesn't dig into it as much as Billings does, just because it's a different community.

So we're all going to be learning our way through this for the next few years as we try it out.

So Mark, other questions on the ZMEs, yeah.

Chris, just one more question about the the broader process with uh the diagram they showed that kind of shows the whole process from beginning to end.

I'm just curious about the timeline for that.

I know we've heard from the development community that they would like these things to get processed quicker.

And I think that was part of the intent of um Malapa to accommodate that.

Is can you just describe kind of the like best case, typical case, worst case uh timeline for a complete application?

Historically, we've told folks to plan on three to four months from submittal to when the commission gets it gives a decision.

Um a lot of that hinges on the uh quality of the application, uh, even more so now with the additional uh opportunity for folks to uh weigh in that the application is not in substantial compliance under the law, that's an automatic do loop back to the beginning for whatever's the missing parts, and so there's um a real importance in making sure that the applications are thorough.

Um they absolutely could still stay in that three to four month um initial review cycle if they're turning in a clean application.

If we're having to come back and say you missed this important piece, uh the classic example is uh would not necessarily be relevant to a zone map amendment, but if we're doing a subdivision or a site plan and they didn't turn in their wetland information, there's a very narrow window in the year where somebody can physically go out and do the analysis, and so if they goofed up their application cycle, they may be waiting a year for that whole um opportunity to come back around again.

So there's a lot of weight that's now come into that the uh substantial compliance determination.

Um I think it is um is doable within the the three to four months, and I think part of the question uh is given the specifics of an individual site and the proposal, how much of a difference are we talking about?

If somebody's going from RA to RB, not a particularly significant change.

If they're going from B1 to B2M or B3, that's quite a lot of potential difference in uh the impacts that might need to be looked at.

So it does vary a little bit at that detail level.

But we have uh done some training with the development community and explained this same kind of a chart and why it's really really worthwhile for them to take a little bit of time on the front end to make sure that it's a solid application rather than getting in the middle and then getting kicked back.

So our next zone map amendment hearing.

Would you expect that to fe look and feel differently than all the previous ones we've done?

Short answer is no because we've got a couple of them that squeaked in under the line.

That's not what I mean.

We'll finish that off.

But once we get into this process, yeah, it will look very, very similar.

Some of the stuff up on the screen will look different.

As we just talked about.

That we just talked about the format in the staff report.

The the staff findings section will look considerably different because different criteria, but the bulk of it is going to stay the same.

Something I have not observed in the past is referencing the public comment the way Greg that that feels like a slight change.

It was like pay attention to what happens at the podium and recognize it for the record.

There's more emphasis under MLUPA at doing that than there was under the priority.

You still had to pay attention to the public.

That's always just been a given.

Yeah, okay.

But the specific recognition and consideration of it, putting that on the record, that has raised in importance.

Okay.

And one last thing I had was appeals.

We're gonna get there in just a second.

Oh, we're not done.

We're not gonna do that.

This is step one.

This is like not the way through the module one.

Okay.

Appeals is actually a little shorter, but uh I do want to ask you a um.

I mean, this is a difficult question to answer, but um we've got this whole process that applicants go through.

We have a professional staff that is very versed in our many plans and governing documents, and by the time it comes up to us, this staff has worked with the applicants.

Um I know that our body is not a rubber stamp, but there is a whole process that has taken time and expense to get through, and possibly some adjustments in negotiation or issue resolution.

So by the time it comes here, our staff on the whole feels like on balance it is approvable.

Um so when I think about all that, I think we should be loath to go against that.

And then I wonder, you know, it is it ever possible for the staff to indicate like you know, when there's some close questions versus not so close.

Um because anyway.

It is um thinking a long time ago, um, there was a staff report I wrote, there were 12 criteria, six were found favorably, six were found negatively.

That was just the analysis.

It literally split 50-50, and so it came to the board and it came up to the commission, and a decision was made.

But um spent a lot of time banging my head, you know, can I come up with a tiebreaker?

Um it, you know, it cleared the first four, the the A through D just fine.

Um, but there were real questions in some of the others.

And different folks can argue different opinions.

And there's also always the opportunity for somebody to come in and say, here's information the staff didn't have.

And that's partly why we have this process is so that we can benefit from the collective wisdom of the community and make sure we have the fully informed decision best we can.

A couple concepts that might be helpful to answer that question.

Certainly the philosophy of the city for the entire time I've been here for reviewing land use applications is to work with property owners to help them get to an approvable project.

That is what Montana law sort of drives out under even under MLUPA and just sort of the service aspect of what the planners and the engineers all work towards.

So under MLUPA and even previous to MLUPA, the ultimate decision on these things is the city commission with your recommendation.

If you guys, and the way that the law I think is set up that way, is elected officials are making final decisions closest to the people, you guys are in the statutory role of making recommendations to them as citizens, lay people essentially, not undermining the expertise that you have.

That's the way that Montana law is set up.

Now, under MLUPA, it does take a site specific development and put it in the hands of the expert.

So they're carving out some things under MLUPA and still need to be governing body with recommendation of the advisory board.

That's the policy development, that's the regulatory development.

Once that's done, then it's the administrative technical thing where there isn't the ability to sort of look at things and say, well, maybe there's a different call.

So I think that's the way the law is structured.

Um more thing, maybe directly to what you're saying, is yes, you can rely on experts, right?

You can judge the credibility of the expert, you can look at their experience and their knowledge, and if you know Nick Ross is standing up here saying, here's what the traffic analysis is, your lay, you can rely on what Nick says.

You just need to demonstrate that he has that expertise that you are going to rely on that.

It's certainly not a like, oh, whatever the staff says kind of thing.

You still have to do that work because MLUPA has put that burden on the planning commission to make the call on the recommendation to the city commission.

And jumping back to the flow, that determination of substantial compliance after you folks in the process, um, that's explicit in statute.

So something can come all the way up here, you can do your public hearing, and you can say we don't find it's in substantial compliance because things the law then says the applicant goes back and gets that information, and then it comes back before you again, the public gets a chance to weigh in again on whatever that new information is.

So there is an expectation that you can make a finding that this is not ready to move forward to the city commission, and um you know, there's lots and lots of details where you can look at that, and that's kind of where it goes back to the project as a whole.

There's always going to be something that you could get more information about, right?

But as a whole, we think it matches up or not, and um, so it does leave a fair amount of latitude for the board looking at those criteria to reach your own conclusions.

In such a scenario, does the applicant have the option to also say we believe we've satisfied our burden of producing evidence showing substantial compliance, and we understand uh planning commission you've uh recommended against us, but we're we just want to go to the commission and have them decide.

The law doesn't say that.

It just says you they have to go fix it.

Now, at some point the question becomes, and we run into this at the staff level too, where there's just a fundamental disagreement about we did or didn't satisfy the rules, then fine, we'll let it go forward to the next level, the next level will make the decision, and then we'll go from there.

So what this body could do is to make a determination back to our initial part of the conversation that we believe this should be rejected.

There's been an opportunity for correction, hasn't been taken, we believe it's deficient, and so our recommendation is is no.

And then it goes to the commission with your input with whatever's come from the public and the staff, and then the commission with whatever support they need can make a final decision.

Are you or you guys you're talking about three or four sub three, right?

This new information.

Yes.

Will you put that statute up for just a second?

So I don't know if you remember under the platter.

Under the plating act, there was like this whole statutory process for new information coming up at the hearing, and then like the timeout, and then you'd have to go back and look at that new information, then you hold a hearing on on only on that new information.

So can you put that on the screen?

On the oh, I thought it was on the screen.

So MLUPA has this provision that puts the burden on the planning commission.

You guys.

Um as Chris is pulling that up, it says if the planning commission finds new or increased impact from the proposed regulation map or amendment as provided through your analysis.

So three, yeah.

Then it says the local government, so then that's the planners have to go back and do that initial analysis, and then it comes back.

So if you're in a hearing and the public stands up and starts talking about new or increased impact of this new zoning, different than what had been analyzed in the community plan, you guys make the finding whether that's the case.

And then if you make that finding, then you send the Christ and company and they go back and do that analysis, follow that statute.

That's up to you to make that finding.

People could be saying all kinds of things in public comment, and then you just need to keep in the back of your mind because you guys know the community plan better than anybody, whether that has already been analyzed.

So, Jason, I think you had said at some point you're going to get to a point where this needs to stop, right?

This process needs to stop, and then you're gonna just make a decision and pass it on.

Yeah, or maybe even irrespective of this, like you know, applicant is saying community plan, these goals, these whatever.

Here's what here's our application, substantially complies with it, and you know, and staff might agree or not, public may agree or not, but uh anyway.

Ultimately, it's it's up to you guys to make that finding in the recommendation to the commission.

Okay.

So you can say we've looked at the application, we think it addresses the matter.

We don't need to go back through the loops again.

Okay.

So other questions on zone map amendments.

Okay.

Um jumping into appeals.

Um so this is another one of those things that's been on the books for a long time, but has a new element with MLUPA that involves um involves this group.

Um so the fundamental process for appeals is laid out in state law, and then we have supplemented it with our own language that has additional details of the procedure.

And so diving into that, um, there's two different kinds of things that can be appealed.

Um adoption or amendment to a land use plan, uh, an issue plan, the zoning map, or a regulation.

That's because those are all decided by the commission, that's an appeal directly to court, and this body doesn't have to worry about it.

It's not gonna not gonna come to you.

But the new one does involve you in review of appeals of a final administrative land use decision.

So MLUPA says that community development director, planning administrators the name in the statute.

So subdivisions, site plans, variances, deviations, special use permits, site plans, COAs, all that stuff all get decided by that position, subject to appeal.

In order to make an appeal, this is the definition from the statute.

It can't be just I don't like the policy.

You have to have a specially and be especially and injuriously affected by the decision.

So we've had situations before, obviously not under a MUPA, where people said, we think this policy was not correct, and they tried to connect that to an individual site development.

And it's like, um, no, that's not the way that this works.

And so NLUPA actually stiffens that requirement.

So if you dislike the policy, by all means go speak with your elected officials.

There's a path for adjusting the policy.

But as long as it's there, that's what we have to live with.

So the planning administrator, so we just talked about substantial compliance and what it means.

That's the same thing that the planning administrator has to look at is it's substantial compliance with the zoning regulations.

The impacts were previously analyzed and made available for public review.

Maybe that's in the land use plan, maybe that's in an issue plan, maybe it's in the individual application element.

It's it's been there, there's been an opportunity for the public to weigh in and share it.

And then the planning administrator needs to come up with written findings saying this is what we did.

We just talked about record and the importance of that record, the written decision and the written findings, that's the staff's version of that when we're making decisions, it's all all getting done and ready.

And this language is specific about zoning, but it's almost an exact parallel for the subdivision.

So I'm not going to bore you with two slides of the same words.

But the determination of a project approval is not on the basis of I like it.

It's on the basis of it met the rule or it didn't.

I can tell you in all of the staff decisions, we have a multiple, not decisions, but staff members.

We have a multiplicity of viewpoints, different things that we weigh differently in our own heads.

Um the same decisions pretty much are going to get made because we all follow the same book and follow the same standards or put in there.

So application comes in, goes through the review process, a final decision is made.

Key point is a final decision.

You can't be an appealing, a project that's only halfway through the project.

The planning administrator has to finish the work, say this is the decision, here's the facts and why, and then an aggrieved person, as was defined there, may make an appeal.

There is a time frame, 15 business days within which that appeal has to be filed with our office.

That record or submits through project docs, which is the same way that we take in all of our site applications, and all that material logs every single step when somebody turns something in.

So it's not a you did or didn't.

We can tell you exactly the day and the minute that that piece of information came in the door.

It's very important in making an appeal, and that language of facts and grounds is specific from the statute.

You have to say, here's what happened, here's why there was a mistake.

And that is based on the administrative record primarily, but then appeals also have a public hearing component, so you will get new information from folks who are sending in letters or speaking at the dais.

Appeals are a two-step process, goes from staff, or three-step, I guess, from staff to this board, from this board to city commission, and from city commission to court.

So if somebody wishes to appeal a decision from the staff, then they're gonna turn in their application, they're gonna give the justification, all their rationale for why they're appealing.

There is a cost for that, so they're gonna submit that too.

And then the decision, as it says here, explicitly in the municipal code, a appeal from this body to the city commission is a different application.

Because let's say there's 10 things that somebody comes in and wishes to appeal from the staff.

You may resolve five of them in the process.

And so it's a different application, it's a different basis, it's a different set of facts that's going up to the city commission.

So that's why there's two different steps in that.

It gets can get horrifically confusing when you're trying to say, well, this was the original application, and this is what they appealed, but not that part because it got resolved last time, and now we're doing this forward.

So to avoid that, staff to you folks, new application, you folks to the city commission.

So when an appeal comes forward, we have to give notice.

There are specific steps for what that notice looks like.

The appeal is limited to the issues.

So let's say there's a hundred things in the review as a whole, and they choose to appeal three of them.

Those are the three things you're gonna end up discussing, not the other 97.

We will give you our analysis of that appeal, saying this is what was decided, here's their arguments, this is staff's opinion.

You'll have, of course, the material from the appellant.

Like I said, your step one, commission step two.

Um, and then the basis of decision is the specific standards and criteria adopted in the code.

Again, we're not redebating the policy, we're applying the standard as the commission has approved it.

The language for making a decision, similar to what used to be the green text, is in section 503 in the state law, uh, you're not bound by the prior decision.

So the fact that the planning administrator made a decision in one direction does not, as long as it's one of those subject matters of appeal, you can make a different decision.

Um the basis of an appeal is an error made.

So the appellant has to demonstrate why there was a mistake, and then they have to persuade you that it actually was a mistake.

Regardless of whether you grant the appeal, deny the appeal, whatever, your decision has to be made in writing.

So staff will support you with that.

Uh similar to the findings of fact that we do for the city commission or have done for the city commission in the past with subdivisions, where it documents these are all the steps, this is what happened, this is who spoke, this is what the decision was.

And then it's important to remember that the initial decision must be sustained, meaning you can't overturn this the staff unless you've made a decision that it's arbitrary or capricious or unlawful.

So it's pretty high standard, right?

Um each of those words is an individual basis, so it could be because something was arbitrary, it was done without foundation.

Um it was capricious, it was just completely out of left field or unlawful where something got done that just plain is illegal to do.

Um we hope we will never ever see the last one.

We certainly will try our best to make sure there isn't one.

Um the materials that you're going to get are going to be far more complex than the material that you'll see for a zone map amendment.

So lots more pages, lots more drawings, because they're dealing at a site level, whether it's a subdivision or site plan with all the details necessary to actually authorize construction.

So you've got the stormwater, you've got the trees, you've got the sewer, you've got the building elevations, all the nuts and bolts to physically execute the thing.

And so they are uh they are a very different animal in the review piece.

So that's gonna be beneficial to you in sticking to the specific elements that are the appeal, you won't drown in all the rest of the stuff.

We've got lots of smart folks on the board, you'd get there, but it is a lot and it's tricky.

The same basis for a decision, substantial compliance in this case, when taken together, uh complies with the densities and standards of development for development of the site as set forth in the applicable zoning regulations, zoning map, and subdivision regulations.

So if the zoning says you can have a building that's 10 feet tall, and the neighbors say, by golly, it should never be higher than nine, I'm sorry, if it says 10 feet, it allows 10 feet.

I'm sorry, if it says 10 feet, it allows 10 feet.

We can have a discussion later about whether it should be some other number than 10.

But in the meantime, that's that's the number we're working with.

So the public notice that we do is a little different than the zone map amendments.

We don't do the mailings out there.

Again, this is a site specific applying the code rather than making the code element.

So this is the quasi-judicial component that Greg was talking about, where you know we are having to be really, really strict about where's the information coming from, what's the basis of development input.

So absolutely it's a public hearing.

Folks can come to the podium, they can send in an email or a letter, absolutely open for that.

Um, but no button holding yourself or members of the commission to try and talk you into one position or another.

You just need to cut that off right immediately.

Umilar kind of process to what you've seen or would see for a zone map amendment, staff presentation, applicant presentation, public gets the chance to weigh in, discussion and motion with yourselves, and then ultimately a vote.

So the mechanics of the hearing very, very similar to what we just spent some time talking about on the zone map amendments.

Staff will offer you a recommended motion.

Um this one's a lot more likely to vary from individual application to application because it might be might be one thing, ten things, who knows how many.

Um you might uh see multiple motions recommended because there's distinct elements that it's gonna make more sense to act on each of them individually rather than trying to mash up some Frankenstein motion that's really hard to track multiple different pieces and parts through.

But especially in findings, or especially in appeals, um this is all the stuff we talked about earlier about findings is like times two because this is already something that's controversial, there's disputes over its compliance, and so being able to just be really, really clear about I heard it, heard from the public.

If there's an appeal, there will be public members here because that's why somebody's dissatisfied with the decision that was made.

Um we've had some mighty quiet zone map amendments where there's not literally a soul in the room that's not the applicant.

That would be unlikely to be the nature of an appeal.

So again, uh you can draw from the staff report, you can disagree with the staff report, you can make your own findings.

Uh we just want to make sure the record's really clear so that if it stops, we all know what actually got decided at this level.

If it goes forward to the city commission, then that's clear as well.

Um, and then if it eventually gets to the courts as well.

Um at this point, I'm going to turn it over to Greg to cover some additional details.

Um of the stuff that let's hit on the screen, we've already talked about.

So I'm not going to get into a whole lot of detail.

Um suggestions and considerations, just like with the zone map amendment, it's okay to take your time, especially on an appeal.

If you leave here with anything tonight, just know that your mindset has to be completely different when you hear an appeal versus a zone map amendment or a zoning regulation.

You have to think of yourself as judges, and you have to act accordingly.

You are not here on an appeal to think about what would be the best result for that piece of property.

You just have to look at what the applicant proposed, what the decision was, and was it correct?

That's it.

It's not policy, it's not legislative, it's a completely different mindset, it's a judicial mindset.

So the reason that I think the legislature established and put you in the mix on appeals is sort of lawyers throw the phrase out judicial economy.

What it really is trying to do is to make sure the local government is getting that decision correct before it hits court.

Before people spend a lot of resources to litigate something.

So you guys are now in the mix.

And so when we work with the city commission on an appeal, we're asking them to think of themselves as judges.

I'm going to ask you guys to think of the same thing.

All of a sudden, the planners are going to say, hey, an appeal has been filed.

That means you cannot talk to anybody.

If somebody approaches you and wants to talk to you about that appeal, you're going to hear in three weeks, you have to say, can't talk to you about it.

Submit your writing, your your comment to the to the city, and please, and then you encourage them, please come to the thing.

You cannot, if you do have conversations with people, my suggestion to you, just like I would say to the city commission is you put it on the record.

Doesn't mean you have to recuse yourself, but your decision needs to be based on the record.

And so if you're having an ex parte communication with somebody, it's just like a judge doing that.

You need to talk about it and reveal it on the record.

Put it out there.

So I mean that is like a super super distant plan B.

Right.

Like the point is there's this, there's these sideboards that are the record.

Everybody's looking at those sideboards.

Yep.

Be sort of like a juror.

I mean, a juror would never, should never.

Should never get their own evidence.

Like whether it's they went to the site, they heard from somebody.

So I mean, I would think that ex parte is more like that end of the spectrum.

It is, absolutely.

You should not do it.

Yeah.

And if you find yourself in that moment where you can't avoid it, you gotta come in and reveal it when the hearing happens.

You need the act.

So that's why I said mindset is critical for you guys.

You're in this new world where you're not making.

I I don't even think you should think about this as a recommendation to the commission.

Because as Chris said, if you decide the issues and they don't take all of the issues that you decided up to the commission, they're done.

Those issues have been decided.

It's only what keeps going up to the commission.

So your judges now.

Like it or not, that's what MLUPA is doing.

So what I wanted to do is try to just encourage you to realize that you're now in that role.

Um we've never done an appeal under MLU yet, and I'm not exactly sure how it's going to work.

Procedurally, we'll be able to figure it out, right?

You know, what Chris said is that the staff can present the thing to you, then the appellant's gonna go.

If the appellant is not the landowner, I think the landowner gets to go also.

So you're gonna have like two parties standing there giving you evidence.

So we we will work with the staff, and you guys will have more before one hits you.

This is just kind of a primer right now, trying to get to a mindset.

So how many appeals have happened in the past five years?

We've had 11 appeals in the last 10 years.

Okay.

Not very common, but really, really important when they do.

Yeah, okay.

And you'll see one.

Yep.

You'll definitely see one.

Okay.

Um, unless something unfortunate happens to Ben and the Vice Chair has to take over.

That's right.

He really wants to be the chair.

Um so the the first two bullets I think I got already we talked about when we were talking about zone map of zoning, right?

So uh just like in with zoning, when you establish a regulation or a zone map, um the due process rights, the right to participate, the right to know, all of those come into play.

We're keeping an eye on them.

And part of what you need to do, and part of what drives this thing about ex parte is you need to remain neutral, so that a neighbor who appeals, the landowner whose project it is, the city realize and upholds all of their due process rights.

So the system we're going to create for you will be designed to do that.

Um we talked about ex parte.

I just want to make a shout out to the city charter and the ethics section, which requires that all decisions of the city be made in the proper channels of government, and so that means no ex parte communication, no talking with the appellants or neighbors or the general public, you gotta do it within that channel of the way that it's been set up.

That's in the charter, it's not only due process, but it's also in the chart.

If you think you have a relationship with the appellant or with the landowner, when as soon as you find out that it's coming to you, ask the question, will help you work out whether there's a conflict there.

Um we talked about the findings and establishing the record.

It's the utmost of importance on these things, and again, mindset you're reviewing, not just sort of those general criteria for a zone map amendment.

That's not what you will be doing.

You will be looking at the development standards that are in the code.

Did they get the parking right?

That could be an issue on appeal.

Did they get all the other standards correct?

Those could be issues on appeal.

The statute says you're de novo, which means that you're brand new, and your review doesn't necessarily matter what the director has said.

So you're on, you're up to the plate, and you're the one that is responsible for looking at everything that is on appeal.

Not every issue on the project or every standard would be subject to appeal.

So it's only the things that the appellant is raising.

That's the only thing within your jurisdiction and what you should be thinking about that.

Just like we talked about with spot zoning, the public will throw, like, so the interesting thing about these appeals, right, is they're not like court proceedings, they're not contested cases, like you might see or learn about in front of the human rights bureau.

These are public hearings.

So you're gonna have an appellant making an argument by sending you an appeal document.

You're probably gonna see a landowner if it's a neighbor appealing, submitting something else in writing to you.

You're gonna have the staff with an analysis, you're gonna get all these documents.

That's the record, but also the public standing up at the podium is the record.

So you will have the task of determining what the public is saying to you relevant to the issues that are on appeal.

They could be telling you trees are the issue, but the appeal that was raised never talks about trees.

You cannot decide on trees, you have to decide on the issues that were raised on appeal.

So you have that job is sort of filtering out what is relevant to the issues that were raised.

Well, and it's also confined to the administrative record.

It is except they're public hearings.

So I'm still trying to figure out how to sort of reconcile those two.

Well, I guess the during the hearing, the record is deemed built.

And so which hearing during your hearing.

On appeal or the origin?

During your hearing on appeal, the record is still still being built.

So it's limited to the administrative record, but then it's still a public hearing where the public's gonna have a right to participate.

And so the public, if trees are an issue on appeal, and will dealt with in the administrative record.

I think the way that this law is set up is that the public can say at the podium to talk about trees, and you gotta think about what they're saying.

That becomes part of the record.

It's a commander.

Unlike a contested case under the Montana Administrative Procedures Act, which there's no public participation rate in here, these are clearly identified as public hearings.

It doesn't make the distinction that it's just open to the public.

We have traditionally under non-MLOPA had the public participate.

And so I think MLUPA is also driving it to the public gets to participate in that appeal.

How that record gets built is going to be an interesting thing to make sure the staff are helpful with you and we're helpful for them as this comes.

Well, what about this as a as a system?

Uh there is a record that was before the administrative decision maker.

So the staff can talk about that record.

The appellant can talk about that record, the owner, if it's different than the appellate, can talk about that record, and the public can talk about that record.

Absolutely.

But there's no adding.

Well, have zero guidance on how this public hearing is supposed to work, right?

Combining with the right to participate, right?

I think if I don't want you guys to start to feel like you have to uh police somebody at the podium when they're making their public comment, it's gonna be for you to discern what's relevant.

And I'm okay with if somebody says something brand new that's not in the administrative record, you don't need to shut them down.

But what you guys need to do is discern that and then not address that and rely on that when you're making the funders.

And we'll try as the staff in our presentation to make very clear for anybody who's present and participating the scope of what the appeal is.

So here's the here's the three, five, seven, whatever number of things that are the basis of appeal, and we'll try to explain that the rest of the the rest of the project is closed from public comment at this point.

Who knows how successful that will be, but we will try to help educate as we go through, and especially the first time around or two.

No one's ever done this, as Greg said.

So there's there's a learning curve all the way around, and we'll go from there.

Um do you uh envision some of these issues coming up?

Uh, things I'm wondering about would be so we've got some new UDC language that got kind of edited near the end that had to do with like natural feature, natural resources on a site.

It's not very clear or definitive language.

We also have um, you know, so as a process, as a project moves through the process with staff, um, I mean, staff might have some interpretations of requirements, and either that's sort of a a yes or no as to whether the staff would recommend approval or not, could be the basis of a condition or not.

I guess it would I would think that potentially multiple things like that could be appealed.

But I don't know, I mean, do people have to decide um along the way, like whether to sort of work with you or not, or are they allowed to preserve like well, we think the parking is calculated as X.

We think that this new UDC language about preserving or balancing the natural environment, like we think what we proposed originally satisfies it.

If you require a condition different, we don't think you're allowed to do that.

And anyway, are they labeled able to sort of maybe have like say three things that they're there's some things, right?

The setback is ten feet.

That's pretty easy to determine they did or didn't.

There's other elements that do involve some judgment because they're um you know, wetlands is a classic case, it varies from site to site about how much what kind what they may be proposing.

Uh leave it alone entirely, maybe they need to cross with a road, who knows.

Um so there is the opportunity there for somebody to object.

One of the pieces that is gonna be interesting to explore as we go through here, is you know, if somebody submits an appeal and says, I don't think five-foot setback is enough, that's a that's a policy opinion.

That's not a compliance with the code.

And so it may show up in the appeal, and they can say this is why they think XYZ.

But when that comes up to you folks, that's it's an administrative decision, yes, that it would that it meant the five-foot setback, but the question of is five feet enough really isn't in the realm of things that you get to amend on behalf of the city commission.

City commission has said five feet is okay in these conditions.

Um that's going to be an interesting exercise in filtering through whatever gets submitted and deciding what's genuinely appealable, um, can be acted on by this body, and which things are not.

The just to add the statute clearly calls out that the imposition of a condition is an appealable then.

So landowner, staff look at the application and say, okay, we're gonna add a condition, whether that's uh some kind of mitigation or something else to or a different kind of condition that would move the application into compliance with the code, the landowner can appeal that to you guys.

Yeah, and then your review is narrowed to what that issue is.

Is it possible that an issue such as that could occur like possibly twice?

I mean, so there's an application and there's this issue about whether this condition is appropriate or not.

I mean, when it first comes to us to make a recommendation of the oh no, it wouldn't come to us because it's administrative.

Yep.

But you could receive an appeal regarding that condition, you could make a decision, and then they could appeal your decision to the city commission.

Right.

One of the really interesting things, which I will be interesting to watch across the state, and I hope it's not us first, is the staff can appeal your decision.

So if the direct appeal comes from the director, if the director believes that you made an error, the law allows the director to appeal your decision to the city commission.

So it's it's intended to balance all of the participants the applicant, the decision maker, members of the, you know, everybody who can demonstrate that you know aggrieved party status.

So it's never gone there, it's never been a thing before that really has been considered to be allowed.

New stuff it's in the statute, but I cannot imagine that.

And so, like a likely thing is like a denial, right?

An outright denial of an application, which surely could be or an imposition of a condition.

Are there some other things you think might be likely to be appealed?

Drawing from the past in Bozeman, when the city commission in the early 90s adopted the sign code, the board of adjustment who was hearing variances at the time decided to take it on themselves to fix the bad policy choices of the city commission by handing variances out like candy.

So that would be an example of where commission somebody asks for a variance, the director says no, it gets appealed up to you, you say yes, the director believes that there's you know the criteria were not satisfied.

So I like I said, I hope it's not us, but it is fundamentally different than it has been before.

So the the likeliest parties, right, are folks that are an application is approved, um, aggrieved parties are will allege the director made the wrong decision, appeal that decision.

Um comes to here, you know, other circumstance being uh applicant applies, is denied, appeals that decision, comes here out of way, right?

Uh from that, this body decides actually we think from the applicant's appeal, we think actually it should have been approved.

That's a circumstance where then the director can say, I think it's still wrong, and I will appeal this body's decision to the city commission.

It's possible.

And that's this is where the staff is going to carry a responsibility to make sure that the documentation that we put into our decisions when something is decided originally is as bulletproof as we can reasonably make it.

Here's the logic, here's the standard, here's the evidence, this is why there was a decision, and there's a very clear path.

It doesn't mean everyone's going to agree.

But we can at least you know lay that out very clearly so that when it comes to you, and potentially from you to the commission, whoever's reviewing it sees what the thinking was, sees the basis of the decision, um, and hopefully make their own informed judgment.

So again, we've never done an appeal under MLUPA.

So you guys have never done an appeal.

So when we get one, we're gonna have to figure some things, and we'll work with you guys so by the time you gavel in the hearing, you guys are prepared to run the hearing.

Please.

Who who can be an aggrieved party?

Can anyone be an agreed party?

Anyone who can meet that standard.

So can I take that for a second?

So that's a what lawyers call standing essentially, right?

To be able to demonstrate that you have an injury.

Um there's a bunch of case law that sits there and can help us understand.

I I think one thing that you guys may help is uh what's that grocery store next to the target?

Winco.

So the when Winco came in, um, it's not almost 10 years ago now, probably a long time ago.

Uh there was a group of people who didn't want to see Winco.

And so they challenged and appealed the site plan approval for Winco.

And we took a hard look at that group of people and the allegations that they were making about their injury, and we suggested, and this was a before MLUPA, so the appeal went to the commission, and we thought that it was an issue whether they had standing.

And so what we said to the commission was on the record, just basically say a couple things and preserve that issue, and then the commission went and decided the appeal on its merits.

We will probably do the same thing under MLUPA so that we don't send appellants in this chase to litigate whether they have standing.

If they if we said no, and then the court said yes, then all of a sudden you go back, you would never decide the merits.

We think that's not an efficient use for the applicant, for the landowner, for anybody.

So we may say to you, we have some concerns, and then that becomes a legal issue.

So in the Winco case, it was a group of people who didn't live near it.

They drove on 19 the same way everybody else does.

We litigated the standing issue, and uh district court judge said those injuries that they're alleging are common to everybody in the community, so you don't have a special injury, therefore you don't have stand.

So we'll take a look at that with the staff, and if there is an issue, you may see a recommendation that you don't really do much with it, and you decide a thing on the merits.

I think ultimately that's the best process to go through for you guys, for the landowner, for the appellant, for all the parties involved, that we don't get hung up on that.

But the legislature has specifically said you have to be an agreed person.

So it is a thing now, the same as what we call issue preclusion, right?

You can't just appeal an issue that wasn't raised in the in the administrative record during the administrator's decision.

You can't bring something brand new on appeal that wasn't raised earlier.

And I I appreciate MLUPA's incorporation of those concepts because it really starts to narrow down how these appeals are going to work.

Yeah.

So ideally what should happen is in their application materials, somebody who's wants to be an appellant would explicitly describe here's how it is unique to me, not necessarily as a solely as an individual, but I am impacted more so than somebody else, you know, the the general public.

Whatever they said is at least an issue that was raised.

I imagine if it's somebody coming after that fact, it's possible that the staff report has analyzed the issue, in which case it's part of the record, but I imagine if they're bringing up a whole new issue or argument.

I mean, they might be in a green part of the standard, but is do other considerations apply, like due process or whatever, like you know, the applicant submitted uh an application, the staff considered it complete, they felt like all the code requirements were addressed.

I imagine somebody can't come on appeal and start raising new things.

Well, we do have what's that MLUPA with the notice provisions that are in there?

It what we're noticing is the director's determination that it's substantially complete, and then the public has an opportunity to say, no, it's not because if they have information substantially complies, right?

Yeah, but it substantially complies with the standard.

So, you know, if it's something where they believe there's missing information, there's a venue for them to challenge that question, and then the first thing that happens at the close of the public comment period is we have to go look at that comment and say, all right, they raised this and this issue.

Um do we believe that it has been satisfactorily addressed?

And if not, then there needs to be further analysis and may result in another public comment period on that new information.

Um the idea of somebody bringing up some completely new thing should be pretty remote.

Never seen that.

I wonder if we're gonna spend some time on uh substantial compliance, right?

Because I imagine you can make the argument that the presence or absence of a condition or not.

I mean, is that really gonna tip the balance between substantial compliance or not?

Yeah, and one of the distinctions that will be important as we work on this, in our staff reports, we talk about two different kinds of things.

And if you've seen a subdivision before, you will have seen this.

There are code requirements, which is the law needs to be satisfied, there's some step that needs to happen, maybe it's getting their plan review done for their water and sewer extensions or something like that.

It's just not ready yet, but it they need to do it before they get to file plat.

And then there's the true conditions of approval, something that's unique and has to be justified to be imposed, and that's probably where it's way more likely that there would be an appeal.

If it's a code requirement, it's really not very discretionary on staff's part or anybody else.

It says you will do this, here's what you need to do.

Um the number of truly unique conditions tends to be fairly small.

Um part because we have a pretty robust code that covers an awful lot of things, so we're not having to deal with a lot of one-offs, but they do still come up.

So to Jason to your question, as you're going through this, remember that under the statute, the appellant has the burden of proving that the appeal decision was made in error.

So you can sit up here and doubt whether the decision substantially complies.

The appellant has to prove that it was an error.

So part of your analysis is are they giving us enough?

And you might think you would have made a different call.

But you need the evidence from the appellant to push you over that edge.

That's where that burden lies.

And then uh help me square uh.

I did you say it was de novo?

Yeah.

Well, so how does that square with arbitrary caprice?

It's a great question.

Totally a great question, legitimate question.

So for you guys, I wouldn't worry about that so much.

When we get one of these, we will help you work through de novo.

Appellant has the burden, the proving it was an error, the arbitrary capricious standard that seems to apply to your analysis.

There's some things to puzzle out in this appeal statute that we will help you guys do before when you're hearing your first one.

If it was easy, we wouldn't need competent people like you.

Well, uh I'll uh I'll be very interested to hear how Danova squares with arbitrary caprices and a lawful.

Yep.

I mean it's one thing to have a burden of production.

Right.

Yeah, yeah.

Um well, I mean, I guess production and persuasion, but yeah.

Right, for the applicant to like they have to come forth and say like there was an error, and here's why, and they've got to convince us that like, yeah, more likely than not, or whatever.

Like their argument is they've got the better of the argument.

Um, but um, yeah, anyway, how how de novo versus arbitrary capitions of the lawful.

I mean, my understanding of standards of review is those are two different standards of review, so I don't know how you combine them into one proceeding.

Kind of puzzle it out a little bit um and then you add to it all of the explanation of what arbitrary means, right?

Chris, I appreciate Chris saying uh three different standards, they're not the same, it's not one thing.

Everybody just says arbitrary capricious unlawful, like that's the same thing, those are three different words, those mean three different things.

So there's a great deal of deference that courts give to the decision of the local government under that arbitrary standard.

There's things like they don't substitute their judgment, the judge isn't supposed to substitute his judgment for that of the local government.

Um doubt is uh resolved in favor of the decision.

So one thing that I just come back to is your findings, just explain your decision and be as robust as you possibly can.

Look at the things that are on appeal, listen to what the public has to say, look at the record, and just explain your decision.

Then I think you guys will be all right, and all that those legal issues will have to resolve that at some point.

Other questions on the module three?

Or is that it?

This is it.

Okay, good.

Nothing further.

Any FYIs, Chris?

Uh we're not having a meeting in the meeting on March 16th.

We our next meeting will be March 3rd.

March 3rd, yes.

Second, sorry.

Thank you.

The first the first Monday in March.

So honestly, I do not know off the top of my head what the agenda is for that.

Um we'll check.

Okay.

Well, thanks to both of you for the guidance and the training.

You're welcome.

Of course, folks can always refer back to this.

Um, members of the public, yourselves, whomever it will be um included in the board recordings.

Um, as our others are.

Okay.

All right.

See, nothing further, we're adjourned.

Goodbye.