Document Missoula_doc_c5e02b56a7

Missoula Consolidated Planning Board Minutes April 20, 2010 Page 1 of 68 TABLE OF CONTENTS I. CALL TO 2 II. ROLL 2 III. APPROVAL OF MINUTES 2 IV. PUBLIC COMMENT 3 V. STAFF ANNOUNCEMENTS 3 VI. PUBLIC HEARINGS 3 A. PLANNING BOARD DRAFT CITY SUBDIVISION REGULATION 3 VII. COMMUNICATIONS AND SPECIAL PRESENTATIONS 65 VIII. COMMITTEE 65 IX. OLD BUSINESS 66 X. NEW BUSINESS AND REFERRALS 66 XI. COMMENTS FROM BOARD MEMBERS 68 XII. ADJOURNMENT 68 ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 2 of 68 MISSOULA CONSOLIDATED PLANNING BOARD MINUTES April 20, 2010 – 7:00 p.m. Missoula City Council Chambers, 140 West Pine MEMBERS PRESENT Jennifer Clary, Chair John DiBari Kelley Durbin Jonathan Haber Heidi Kendall Don MacArthur ALTERNATES PRESENT Tim Skufca MEMBERS ABSENT Tim Ibey Jerry O’Connell Jerry Petasek ALTERNATES ABSENT Carol Evans STAFF PRESENT Jen Gress Laval Means Janet Rhoades Sharon E. Reed OTHERS PRESENT Jackie Corday Kristi DuBois Vickie Edwards John Hendrickson Ruth Link Michelle Hutchins Brianna Randall Sean Sullivan Please Note: Written comment and meeting handouts received at this meeting are available for review at the Office of Planning and Grants. Planning Board, City Council and County Commissioners have received copies of the comments for consideration. Photocopies may be obtained from OPG. An administrative fee is required for photocopies. I. CALL TO ORDER Jennifer Clary: I’d like to call the April 20, 2010, Missoula Consolidated Planning Board meeting to order. [7:05 p.m.] II. ROLL CALL Jennifer Clary: May we have a roll call, please. Roll call indicated that there were 6 members and 1 alternate present. Sharon Reed: Madame Chair, can the City alternate fill in for a missing City alternate [sic]. Jennifer Clary: Yes. Sharon Reed: And you do have a quorum. Jennifer Clary: Okay, thank you. III. APPROVAL OF MINUTES Jennifer Clary: Can we have a motion to approve the April 6th minutes? Kelley Durbin: So moved. Jennifer Clary: Do we have a second, anyone? Heidi Kendall: Second. Don MacArthur: Did we get those? Jennifer Clary: I have them, they were e-mailed to us. Don MacArthur: Oh. I haven’t actually reviewed them, so, I’m not voting, but… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 3 of 68 Jennifer Clary: Okay. Don MacArthur: Maybe they were e-mailed to us. Heidi Kendall: They were e-mailed. Don MacArthur: Okay. Jennifer Clary: Do we have a second? Did somebody second that? Seconded by Heidi. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion passes. IV. PUBLIC COMMENT Jennifer Clary: So now is the time that we ask for public comment. So anything that would not be on our agenda this evening, which is the Planning Board Draft City Subdivision Regulation Revisions and this is a continuation from our last meeting. So if anyone has anything they’d like to discuss that’s not on our agenda. V. STAFF ANNOUNCEMENTS Jennifer Clary: Seeing none, we’ll go to staff announcements. Laval Means: I believe you have a memo that was distributed and I haven’t seen it, but I know you have at least one project. Jennifer Clary: Yes. It looks like the Title 20 City Ordinance Revision to Garage Setbacks will be for our May 4th meeting. Laval Means: Right. Thank you. Jennifer Clary: Okay. Any comments on that? VI. PUBLIC HEARINGS A. Planning Board Draft City Subdivision Regulation Revisions - Consideration of the proposed revisions to Articles 1 though 9 of the City Subdivision Regulations. The City is proposing revisions to the subdivision regulations for the following reasons: to align with revisions recently made in the City Zoning Ordinance; to remain current with State legislative directives; to reflect revisions recently made to the County Subdivision Regulations and Applications; to incorporate the already-approved revisions to the parkland section (Resolution # 7402); and to incorporate limited clean-up of the regulations based on review and comments from early listening sessions and technical review. (Continued from April 6, 2010) Jennifer Clary: Okay. We’ll begin our first public hearing this evening, which is the City Subdivision Regulation Revisions continued from our last meeting. And I think Laval will probably give us an update on sort of where we were, and where we are, and what we’ll be discussing this evening. Thanks. Laval Means: Thank you. Laval Means with the Office of Planning and Grants. At the last Planning Board public meeting, you considered the subdivision…the City Subdivision Regulation ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 4 of 68 Revisions with the Planning Board draft dated 3-10-2010. During that meeting you looked at…made several motions for recommended revisions to the draft and initially started working through, first off, the state legislative revisions or the revisions that were due to state legislative changes and then started moving through the document from Article 1 and to Article 3 and you got as far as Article 3-120, which I think was wrapping up PUDs. And then, you know, would maybe about to start working into 3-130, which was the riparian standards. While you were doing that, you were focusing primarily on the proposed revisions that were before you and you made five motions during that meeting; and you also asked that we look back at some additional considerations or look for some additional information for certain items. I have a document before you that is a summary of that review and it is shown with the red being the suggestions back…just to update you on…you know, I’ve been working with the consultant and what he’s…how he’s planning to incorporate sometimes a general direction to us and then in some situations with this document it might have been can you look into revising something or considering another approach. So, that might be a starting point for tonight is to run through what these requests were. And if you concur, I don’t think…if you concur and it was simply a directive back to our consultant to work on a definition, I don’t think you need the motion for that, but if you see that there is a specific revision that either we’re suggesting or you’re continuing to consider or make, then we can kind of focus there and move forward with what that revision should be. And once we move through the suggested or the request for information, then maybe we could get back on track with Article 3 and onward. And I’ll have to say, that by making some of the motions to the state…due to state legislative changes, you’ve really addressed a lot of things in a few other Articles, like Article 4 and Article 9, especially. So, to…would you like me to just jump into the first request for information? Jennifer Clary: Yep, I think that sounds like a good way to do it, so let’s do that. Laval Means: Okay, on that premise, the first one was about providing a definition of cluster and I was extending that to if we have two types of land development options besides the, say, the conventional development approach, it’s actually cluster and conservation. And so I checked in with our consultant and he concurred that he could write and provide a definition of cluster and conservation. In doing that, he would also refer us to that section that it is in the Article 3. So he’s going to be working on that. The second one had to do with a suggestion that we establish a commentary under the definition of lot that links us…provides some explanation and transition for folks not realizing that what we refer to as lot in a subdivision may in fact be what we call a parcel in zoning. So this is exactly what a commentary is helpful for and I checked with Kirk, our consultant, on that and he concurred. Then, the third item had to do with a PUD and the existing definition that we have. Since we already have an existing definition in Article 2, and it was pointed out that that definition seems to be at odds in some ways, or maybe a disconnect, not a complete connect, with the standards and the examples that are given as types of PUD in Article 3, that maybe we should take another look at what that definition actually says. I checked back in with Kirk on it and he concurred that there…we could take kind of a similar approach as the cluster, which is to write more of a general description definition of PUD and refer us to those standards that are in Article 3 as, you know, the primary information of what a PUD is. He also thought that suggestion of reconfiguring some of the intent paragraph made sense; and I’m showing that up above that red section there, that is the suggestion from Kirk. So, I guess, in this particular one, since we have an existing definition already, it might be helpful to…if you agree, and we want to go that route, it might be helpful to make a motion to say replace that…the existing definition with a general definition of PUD that reference Section 3-120, and the notion of reinstating the first sentence of the intent paragraph as ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 5 of 68 shown in this piece here. I didn’t really write what a motion can be on that, so I’m winging it; and I could open up the document and help more, but that may be one place where a motion would be helpful. Do you want me to stop there or keep going? Jennifer Clary: Let’s just…let’s stop there, and let’s go back up to one and see if anyone has, well, actually… Don McArthur: Yeah, I think this is just responding to the questions that Planning Board had and I think…I was going to make the motion that, on the paragraphs 1, 2, and 3, that we, you know, that appears to address the concerns that I heard raised. So I’d like to, you know, give our blessing to Kirk going ahead and doing that in the preparation for the draft that goes to City Council. John DiBari: Second. Jennifer Clary: Okay, we got it seconded by John. Tim? Tim Skufca: Well I guess number one, the reason cluster was eliminated to begin with was because it was included in the section on clusters. So if we’re putting that back…I thought there was a lot of wisdom in taking it out and as well as the definition for riparian, the definition for agricultural land, I thought that was a better direction than to put it back in. And for…in the section of definitions, just refer to the section and that takes care of it. Laval Means: First off, the definition that exists right now, wouldn’t work right, because it still refers to those three or four types of cluster that we had in the document. Second, I think we’re on the same page with the…hope to rely primarily on the description and all the standards and regulations that are part of the Article 3, whatever number. So that is what Kirk is going to rely primarily on is that reference back to 3-150, but he’s noticing and agreeing with, I think, a point that was made the last time which is: but wait a minute, it doesn’t just appear in Article 3, there’s also reference to cluster and conservation in Article 5. So let’s go ahead and have a general place here that sends us to those more descriptive areas. And that’s the same theory in Article…on the PUD, where I know it was talked about do we even need the definition? Well, because it is…it is talked about in Article 3 and Article 5, we’d still like to have some kind of reference and use sort of the same approach as the cluster. Jennifer Clary: Go ahead, Tim. Tim Skufca: I’d buy that. Okay, it sounds good. Jennifer Clary: Anyone else have any comments on 1, 2 and 3, then? Okay, let’s have a voice vote. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Don. Don MacArthur: Okay, so on paragraph 4, I would make the motion that we add the following sentence to the end of 3-30.1.A. ”Every lot intended to built upon must contain a satisfactory building site that is properly related to topography and that conforms to those regulations and to Health Department, zoning, and floodplain regulation.” It’s a little bit circular, but I think that it gets across the point that there might be other…there might be lots that have a different intention than to be a residential dwelling lot. John DiBari: I’ll second. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 6 of 68 Jennifer Clary: Seconded by John. Any discussion on that? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Do you want to just keep going, Don? Don MacArthur: I was going to, but I was hoping that John would take the WUI question. John DiBari: I didn’t know if Laval wanted to keep going through our explanation pieces like she did before. Laval Means: I could do a part of WUI and then you’d have to do the other part. I’ll just tell you that a point that John had made at the past meeting was wondering what the source of the definition that we’re including for WUI was and also offered up a few other sources of potential definitions. And it caused us to come back and take a look at that; and I asked our consultant what his source was, because he wasn’t just making it up, and he stated where it came from. But he also kind of cautioned and said, but it might be an old document, so I want you to know that. And I ran it by the City Fire Department, and they provided us with the updated statement, which is from the 2006 International Wildland Urban Interface code. So our preference would be to still continue to use that source, but have the updated definition there. And I think that updated definition takes care of one of….John, one of your concerns, which was using the term undeveloped. So, this definition doesn’t do that. And in also coordinating with the fire department, they were comfortable with this approach as well as, you know, a couple that you had…or at least one that you had suggested and didn’t see a lot of difference in there. John DiBari: So I’ll go ahead and make the motion that we accept the amended language as in…as noted in Item 5 of this document to be the new definition of Wildland Urban Interface. Jennifer Clary: Do we have a second, anyone? Don MacArthur: I’ll second. Jennifer Clary: Seconded by Don. Further discussion? Don MacArthur: So that would just replace on page 2-18, would that just replace that first sentence under .123? Laval Means: Yes. Don MacArthur: And then there would still be the boundary WUI and the intermix WUI as stated? Laval Means: Right. John DiBari: Yes. Jennifer Clary: Jon. Jonathan Haber: I guess I’ll ask John if…since you had the concern about the fact that it had the word undeveloped in there, the fact that the definition still refers to human development being a requirement of the WUI, that takes care of that concern. John DiBari: Well I guess, I think it depends on how much of an issue we want to make at this go- around; and in conversations about this, I think, perhaps the thing to do is to accept the newer definition, move on with this issue, and I would also like to make a motion that, you know…a ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 7 of 68 subsequent motion that tries to address this issue in broader terms for a time that we take this up again and do revisions for specific issues. Jennifer Clary: Right, so you’re going to hold that second motion, there, until a little bit later? Okay. John DiBari: [inaudible, off microphone] Jennifer Clary: Okay. Any other comments? Can we have a voice vote, then? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Seeing none, motion carries. Don. Don MacArthur: I make the motion that we accept the no changes needed for paragraph 6, as suggested by staff. Jennifer Clary: Do we have a second on that? Heidi Kendall: Second. Jennifer Clary: Seconded by Heidi. I’m sure John wants to discuss this. John DiBari: Well I’ll just wrap it into my next motion, how’s that? Jennifer Clary: Okay, any further discussion on this motion? John. John DiBari: I’ll just say, I’m not sure that I…you know, I’ll defer to the fire department on this. Obviously, it’s their job to make sure or to insure public safety with regard to fire; but I think that there’s perhaps something that we’re missing here with, especially, I think the caveat that it’s one, community water supply, or a sprinkler system, misses the boat when it comes to trying to protect neighborhoods for wildland fires. So I’m not sure a neighborhood full of houses with sprinklers is going to help except in the limited case where they talk about here in insuring that the occupants of that house may be able to escape. Jennifer Clary: Laval. Laval Means: Yeah. I checked in with the fire department quite a few times on this and their preference, and I believe this is the approach and, Janet, you can correct me if I’m wrong, but the preference would always be to seek the community or public water system. And there’s very rare instances when that isn’t possible. The one example that fire department gave me was in the Mullan Road area. Just because it was not near an existing community system and they weren’t putting in their own system, maybe not big enough or whatever it was, it isn’t technically probably an area I would even consider WUI, but I know our mapping might. So, their preference would always be to get the community water system first. And the language says that it has to be approved by the fire chief and the next piece of all of that is that sub 2 that says that when they would consider the fire…the residential sprinklers as an alternative to there’s a lot of other things they have to prove, including having an SID, etcetera, for the eventuality of a community water system. So that tells me, also, that they’re not necessarily on equal footings, if you see what I mean; and it’s not necessarily the developer’s options, it’s based on what the pref…what the conditions are, where they are, and what the fire chief would recommend, too. Jennifer Clary: Any further discussion? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 8 of 68 Don MacArthur: I think if I might, I don’t want to prolong this because I don’t think we’re going to change anything anyway; but to me, this is really about the subdivision itself, not about the WUI, necessarily. I mean it doesn’t…does it specifically reference this in WUI connection? It just says water supply for fire protection purposes must be provided by one of the following; and I think that…I don’t…you know, the right answer is not to build in the WUI, not to provide, you know, a well that provides 2,000 gallons of storage and 350 gallons per minute. So, I still think that we’ve…we haven’t…this discussion is not damaged by this crossing out of that one line, for me. Jennifer Clary: Any other discussion? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. John DiBari: So can I just pick up for a second? Jennifer Clary: Sure. John DiBari: So I think I distributed to the Board and submitted for the public record, a memo for lack of a better word, that addresses some of the more-concrete issues that I see related to wildland fire, specifically concerning how safety and welfare and resource protection. So I know that’s not really in the scope of what we’re doing today, we did pick up a little bit on the definition but just, I think, it would be worth the Planning Board going on record if we feel this way to vote on a motion about for…well, maybe I’ll just make it as a motion, should I do that? Jennifer Clary: Sure. John DiBari: So I would move that…that the Planning Board recommend that any future updates of the Subdivision Regulations address wildland fire from both a health, safety and welfare prospective and also a resource protection prospective. And then we can address comprehensively all these different issues that circulate around the Wildland Urban Interface and issues related to wildland fire and the forest and other undeveloped areas that are adjacent to developed…developed areas of our City and County. Jennifer Clary: Do we have a second? Kelley Durbin: Second. Jennifer Clary: Seconded by Kelley. Further discussion? Don MacArthur: So one of the things that we…I sent to John in response to his comments was saying that we should not conflate the use of the term Wildland Urban Interface with this discussion. That term continues to be used by various fire agencies and federal funding sources and other things to direct resources towards, you know, defensible space and other things like that. That is not the use that I think John is referring to and I think he specifically didn’t use the term Wildland Urban Interface in that motion with the idea that we would be creating new definitions that were really a specific to our region, recognizing that probably every place within Missoula County may be in the Wildland Urban Interface by some definitions. And so we’re really looking for a finer grained way to filter out that would really identify areas that are high-risk and have significant danger. Is that accurate, John? John DiBari: That is accurate, yep. I think, you know, we talked about broad definitions here and I think suffices but as Don mentioned, you know, there’s more-specific approaches that we could take that best suit our area and I think it’s worth having the discussion at that time to move through a public discourse on that. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 9 of 68 Jennifer Clary: Heidi. Heidi Kendall: John, can we understand better, or I understand better, who the recommendation is to? Is this to the staff of OPG and the various, you know, agencies of the City and County? Is it to the City Council? Is it to the County Commissioners? Just so we can be clear about what we’re talking about. John DiBari: Sure, and I think that’s a good point and I think given that it’s the governing bodies that help define what the workload is for OPG and Rural Initiatives, I think perhaps it’s a useful…it’s useful to make that recommendation from the Planning Board to the governing bodies, the County Commissioners as well as the City Council. Jennifer Clary: Kelley. Kelley Durbin: Well just for the sake of anybody watching that maybe didn’t get the opportunity to read the document, for myself, not being familiar with the kinds of things that can impact this area, it was helpful to me when John described it as there’s other things that affect the fire…you know, the Interface from wind to, you know, the general environment of the area; and I like the connection you made between defining WUI in a similar way that we would define the floodplain. That made sense to me. And so I’m very much looking forward to the conversation, because you actually wrote it in a way that a person who isn’t familiar with that kind of thing could understand. Whereas, when I read what we have here, I didn’t get that. So, I really appreciate it. Jennifer Clary: Any more discussion? Heidi. Heidi Kendall: I don’t want to belabor this point, either, but I do think that if we do make this recommendation, that it will be incumbent upon us or one of us or some of us to try to follow up with City Council and try to get somebody to make a referral on this issue and start the conversation. I don’t think we should make a recommendation like this and then a year from now say gosh, darn it, how come nothing ever with that. I think—really and truly—I think we have to, if we want to do things like this, I think it’s okay, but we have to understand that it’s going to take some work on our part to get it going. Jennifer Clary: John. John DiBari: Sure, I’d be happy to do that, and I’m also the Planning Board representative to City Council; so perhaps at the next meeting when I go to PAZ, I can advance this at that point. Jennifer Clary: Okay. Great. Any other discussion. Voice vote, All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Seeing none, motion carries. Don MacArthur: Okay, I’d make the motion on paragraph 7 that we amend Section 3-070 as suggested in red, which we’re changing the word municipal to public for the water system, adding the statement as defined by A.R.M. 17.36-101 to the end of the first sentence–change all reference to public water to public water supply system. This was addressing the fact that there were some references to a municipal water supply system and all of those have been changed and redefined by this suggestion. Jennifer Clary: Do we have a second? John DiBari: Second. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 10 of 68 Jennifer Clary: Seconded by John. Further discussion? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Don MacArthur: So… John DiBari: I have a question for Laval [inaudible, mic not on] Jennifer Clary: On number 8? Okay, can you discuss further Item number 8 or present it, I supposed? Laval Means: We were asked to look at the definition of the riparian resource area and consider the possibility or craft some kind of language that could result in expanding the…the…where the riparian resource area would apply to places that had the potential for the riparian vegetation, because primarily, we rely on existing riparian vegetation and the water bodies, the water sources. So that was one part of this piece having to do with the look, primarily, on the definition section. The other part was some concern that was raised over the definitions of riparian resource area and riparian buffer area and how they seem circular. One was including the other, and then one was next to the other. So we wanted to try to clarify that for folks and the first part of that, I would say we took a long look at. We talked to the consultant; I know that agencies met and looked at potential approaches; and we may have all come to the same place, which is to say that by expanding the scope you end up introducing a lot more unpredictability and unknown factors for what may or may not be considered as part of a riparian resource area. And one of the goals we were working for was actually more predictability. It could throw more lands, qualifying lands, into the fold of what may or may or not and then it was going to depend on what the factors were for determining what was thought of as a potential additional area for riparian resource. We also looked at some guides…documents that are already developed, and they rely on the vegetation as well. So from several different ends, we kind of came back to the same conclusion, which was to not recommend expanding the scope of where the riparian resource area applies and leave that aspect of the definition alone. Jennifer Clary: Thanks Laval. John DiBari: Could I ask that if there are any members of the public who would like to make comment on that? Jennifer Clary: Yes, Jackie. Jackie Corday: Thanks John, Jackie Corday for the Parks Department. Yes, we did meet and when I say we is members of the Clark Fork Coalition; Fish, Wildlife and Parks; Public Health Department; and Parks Department. And we met to talk about this because it’s a very important issue to all of us. And we kept trying to define it so that it would be clear because we had suggested the language at the last Planning Board meeting but we realized that it was going to cause some problems for being onsite. Like, for one, John Hendrickson had brought up the idea that well, if you say could support riparian area, then all of a sudden 2-foot wide ditches….well, they could support riparian area, then that’s a problem, so how do you eliminate that? Or if you say historical, it could support it historically, then, also, how far back do you go historically. So that’s when we decided nope, nope, let’s just stick with it, it’s been working for, I don’t know, how many…12, 15 years? Laval Means: 94. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 11 of 68 Jackie Corday: it’s been working for over 15 years, so we decided, nope, let’s not mess with that, let’s keep it the same. So does that answer your question? We’ll have other comments about other issues in here later, though. Thanks. Jennifer Clary: Thank you. Any other public comment right now? John Hendrickson: John Hendrickson, MBIA, so just for clarification when you say oh, other body of water, you’re still including irrigation ditches, no matter what, you know. Laval Means: When there’s vegetation, existing vegetation, there. John Hendrickson: So, then, how do you address the water districts, irrigation districts, when they want to come in and dredge or pull out vegetation, so on and so forth. Just… Laval Means: Shall we… Jennifer Clary: Janet, go ahead. Janet Rhoades: You’re correct. Sorry, Janet Rhoades, OPG, for the record. You’re correct that irrigation districts always have that right and we know that and that’s part of the riparian management plan, usually, or just understood. But, just because the irrigation ditch company could come in and remove certain riparian vegetation doesn’t necessarily mean that it is not worth protecting, because some of the riparian areas along the ditches, especially the older ones, really do provide some good, solid riparian areas and habitat and all that other stuff. So there’s a very specific reason why a ditch company might want to come in. Generally, they’re dredging in the ditch, they’re not cutting down vegetation on the edge of the ditch, is my understanding. But there is that one sort of exception or exemption, but all the other protections are usually the same as a regular riparian area. John Hendrickson: If I could? Jennifer Clary: Sure, yes. John Hendrickson: Thank you. I could concur with some of the older, you know, types of ditches, like the ones along…but the ones along Briggs, the ones along, say Spurgin, for argument’s sake, which I don’t think you’re referring to and there’s numerous other ones, smaller ones, where if you have a building site, would be held hostage to this or could be held hostage, I should say, and which is why I asked, you know, since we are going to be fixing items in the riparian area. I don’t everything here has been addressed out of Title 20. You’re going to be fixing it on the backside. Why not just do everything at one time and be able to revisit this and make exceptions to the ditches and stuff. I mean there’s no one, I don’t think, in the room who’s…doesn’t see the value of protecting riparian areas. But in most people’s minds, a ditch, especially small irrigation ditches, are not riparian. So I would ask you to consider that. Thank you. Jennifer Clary: Thank you. Please. John Hendrickson: And in here, it says Exhibit 5, I couldn’t find it in the book. What exactly is in Exhibit 5? Laval Means: It’s part of the supplemental administrative materials. They are not being changed, so you could find them online. John Hendrickson: Okay. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 12 of 68 Laval Means: Or stop by the office and I’ll show you what those are. This is with regards to riparian vegetation types, I believe. John Hendrickson: Right. Laval Means: Yes. John Hendrickson: Okay, thank you. Laval Means: They’re not regulations and they’re not being changed. John Hendrickson: Okay. Michelle Hutchins: Michelle Hutchins with the Missoula Water Quality District. I just wanted to comment on the importance of riparian vegetation along irrigation ditches. It may not be considered a generally thought of natural riparian area, but from a water quality perspective and from a water temperature perspective, that vegetation is still providing the functions that it provides along the river and that water is flowing back into the river at some point. So it’s still important for the protection of water quality and keeping water temperature down. Jennifer Clary: Thank you. Brianna Randall: Hi. Brianna Randall of the Clark Fork Coalition. Just wanted to make a comment on ditches, which as Michelle just said, they aren’t always natural; but there’s a question of normal versus natural here in Missoula, and what’s been normal for 150 years can sometimes be considered natural in our lifetimes. So in addition to the water quality benefits of that riparian vegetation along the ditches and the flood control benefits, especially the confluence of the Bitterroot and Clark Fork, they provide a lot of flood control. They also have a lot of aesthetic values. If you ask some of the people in the Rattlesnake who live along the ditches if they think they live along a riparian area, they will tell you yes. And if you want to shut off the ditch or cut any of that vegetation, you’re going to have a fight on your hands as well. So, they do provide a lot of property value based on the amenity of living along that vegetated buffer. Thank you. Jennifer Clary: Thank you. Kristi DuBois: I’m Kristi Dubois, I work for Montana Fish Wildlife and Parks; and I would like to comment on a couple of aspects of that…of this. In terms of ditches, yes, they are creating an artificial situation, but on the other hand, they’re also removing water from our streams, lowering the water levels in some of our streams if enough irrigation water is withdrawn and that does negatively impact the riparian vegetation along those streams. So, the way I view it is some of the vegetation along the ditches may be helping making up for what we’ve lost along the stream courses themselves. So if the water had been left in the streams, the water table would be a little bit higher and the vegetation would be a little bit healthier in those areas. I also want to comment on…I don’t know, are you still taking comments on…what was the previous…the potential riparian vegetation areas where riparian hab…vegetation could potentially grow, is that still part of this section or is…you…and… Jennifer Clary: Do you mean the buffer area? Laval Means: No, the idea of expanding the scope, the scope piece of this. Kristi DuBois: Yeah. And what I wanted to comment on there, and I know Fish, Wildlife and Parks has submitted comments on this numerous times. A lot of times, the areas that are being ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 13 of 68 subdivided and there might be just a little stream course and some riparian vegetation along it. Many of those areas have been grazed for decades by cattle, and in some cases very heavily grazed without any protection to that riparian habitat. And oftentimes, if you remove the cattle—I think this is getting back to your comment—it may not be predictable where…you’re saying it might not be predictable where the riparian vegetation recover…would recover and come back. In some cases, I think it might be just by looking at the soil, the water levels in the soil in that area, because there are numerous areas around here where there’s no…essentially no riparian habitat left because of either they removed it to increase the grazing or, you know, the cattle grazing over the years have removed it. And if you protect that from grazing, the riparian vegetation would naturally come back in, I think, a fairly predictable area along…you know, where the water table is high enough and it might be something where it would be worth consulting some experts in that area in terms of where the vegetation might grow back relative to the water table. Thank you. Jennifer Clary: Thank you. Jon. Jonathan Haber: I guess I’m reading this differently than everybody else; but the definition uses the term body of water and there is a definition on page 2-4 for body of water, other and I don’t see irrigation ditches in there. It mentions drainage systems discharging directly into streams, which might apply to the used irrigation water, but the incoming ditches, to me, are not bodies of water using this definition. Jennifer Clary: Good point. Don MacArthur: When I read that, it looked to me like it also said something about surface water, like discharging to surface water? It was confusing to me, the definition isn’t that clear but it could maybe… Jonathan Haber: Drainage systems discharging directly into streams, pond, or other surface water. I still think it’s not referring to irrigation ditches. But this would be an opportunity to clarify whether we want to include ditches by mentioning them in the definition. Jennifer Clary: John. John DiBari: Are you making that suggestion that we do include it? Jonathan Haber: For now I’m staying neutral on that question because I think including it there…I don’t know what customary interpretation has been here, I think that’s what we’re trying to stay with, but if the…this is the original wording, so I’m not going to propose changing it. Don MacArthur: If I could make a global comment. I mean, it feels to me that people would like a little more predictability, maybe, but I don’t remember a lot of…it seems like it’s been pretty predictable in Missoula City what the expectations around riparian resource are, recently, at least from my perspective; and I guess I’m hesitant to change that, or tweak that unless there’s been a big problem. And at least from what I’ve seen in Planning Board, I don’t think that there’s been a big problem, so my inclination is not to tweak something that is already working. And…and in response to the Fish, Wildlife and Parks comment, I think we heard from Jackie last time that we tend to already look at where there is potential riparian resource, even though it’s not written specifically in there, it’s still evaluated at the time of subdivision, so we’re trying to…you know, often making that commentary anyway, even though it’s not specifically written in here and I think it…I think that’s why we sort of said, well, if we’re already doing it, maybe it ought to be in the definition but it sounds like that might be not the right way to proceed right now. Just keep doing what we’re doing, and if it needs to get redefined later because of problems that we run into, then we do it. Jennifer Clary: Janet. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 14 of 68 Janet Rhoades: From staff’s perspective, the body of water, which type it is, is sort of…I want to say, irrelevant, but we’re looking at whether it is land containing any of the habitat or community types listed in Exhibit 5. So, if there’s riparian vegetation there, regardless of the source of water, the riparian vegetation is what makes it a riparian area. So I think that maybe, as Don says, why there hasn’t been much confusion because it’s if there’s riparian vegetation, then it’s riparian resource area, whether it’s along a ditch or a stream or a spring or whatever… Don MacArthur: But that just…you know, that actually addresses part of what I said, but the other part was the thing that we’re considering areas that don’t have riparian vegetation as potentially having….being riparian areas with the removal of cattle or some other influence, and I think we want, you know, we don’t want to write the definition in such a constrained way that that is not possible for staff to use as a way of understanding the potential riparian resource. I guess I’m just thinking we leave it the way it is. So I’m going to make that motion. Jennifer Clary: Okay. Don MacArthur: I mean, I’ll make the motion that we take staff’s suggestion of .96 Riparian Resource Area and what they’ve written in red is a stream, wet meadow, woody draw, wetland, or other body of water and land containing any of the habitat or community types listed in Exhibit E-5, period. Jennifer Clary: Do we have a second? John DiBari: Do you want to just leave it there for the moment and pick up the rest of it? Don MacArthur: Yes. John DiBari: Okay, well, then I’ll second it. Jennifer Clary: Seconded by John. Jackie, go ahead. Laval first? Go ahead, Laval. Laval Means: Allow me to summarize why we are making that recommendation. Concerns raised over circular, one of the things that I just wanted to alert you to because there’s…there are so many aspects to the review and recommendations for the Riparian Resource Areas when you’re looking at a subdivision, I kind of wanted to try to boil the current approach down for you. And the point here is that we weren’t trying to change the approach as currently practiced. There is a description of a riparian resource area currently, and that was actually a part of the riparian standards, it was under the description…it was called the description or delineation…a designation (thank you) but it really said this is what it means. So what the consultant did is turn that…made that…said that’s our definition. But from that, what the staff was doing as the designation was requiring that the two things be mapped, even though that designation says that it is about the vegetation and an adjacent buffer area. So what’s key is that we want to be able to continue to designate and delineate the two things: the riparian resource area and a riparian buffer area. Then, we also have regulations under the…currently, the regulations in that Section 3-130, the always refer to riparian resource area or area of riparian resource area, but they’re really meaning both: the riparian resource area, and the riparian buffer area. So we want that to be clear, too, we want to make sure that not having to go into that section at all, and stating specifically that it’s for the two of them, using either our commentary or some other technique, making sure that it’s acknowledged that when we mean the riparian resource area we mean both when we’re applying the standards. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 15 of 68 And then, finally, we wanted to be able to make sure that we can continue to address the riparian resource area differently, if needed, and often not needed, but in some situations differently than the riparian buffer area. That’s kind of the three key takeaways. When we looked at that, and we realized that hey, as long we are delineating them, and we’re saying with the buffer that it extends from the edge of the delineated resource area, we’re fine with striking that last piece of the definition of the riparian resource area. We also have that…the section in Article 3 that says for all intents and purposes we’re referring to the same things, unless we need some distinct conditions to treat them. Perhaps something different in the management plans, etcetera. So that’s why we thought that would be one…that would be an approach to take for addressing the concern over circular. Jennifer Clary: Jackie first, then Don. Jackie Corday: Jackie Corday for Parks. Thanks, Janet, for calling me today at 4:30 to tell me about these changes and finally had time to try to read through and understand what you guys were doing. And here’s my concern with this. Right now, for I guess since 94, the way that the definition has read is that they’re always, they’re together, the riparian resource area includes the buffer. And my concern is that if you go with this change in the memo that Laval has handed out today, that completely separates out the buffer area from the riparian resource area; and I understand what you wrote in the language of 3-130 0.3 that says unless otherwise expressly stated, the term riparian resource area also includes the buffer area. But that doesn’t assure me that the argument isn’t going to be made in the future by developers when they read through these regs and see that everything in the regs refers to standards for riparian resource area. So, first off, give you an example, it says that the trail standards, that the road standards, that the standards of where lots can be created, all of that specifically says riparian resource area, which was fine when the riparian resource area included both the buffer and the vegetated area. But now, if you separate them out in the definitions clearly doing that, I think, that it can be argued that riparian resource area does not include the buffer when it comes to these standards for subdivision prohibition, for the road construction, because the way that it reads it says road construction is prohibited within the riparian resource areas. And you go back to the definition that you’re saying we should go with, and it separates it out and it clearly says it’s two different things. So that’s my concern is that for, you know, 16 years we’ve had it together; it’s worked. I don’t think we’ve had any major problems with that, with delineating both the vegetation and the buffer, it’s worked, so I’m really concerned about making this change. And because where we’re coming from, from the Parks Department, is that we want to see the highest protection of these areas because they are the most critical areas in Montana. It represents 4 percent of the land base, and what’s the figure…over 75 percent of the wildlife depend on these areas. It’s just a no-brainer, we have to have very high, high standards. So that’s where we’re coming from when I say I’m just…I’m concerned, I think maybe we should just not tweak it the way you’re suggesting and that it should be…in order to address the circularity, this is what we discussed at the previous Planning Board meeting was to change the definition of 95, which was riparian buffer area and in that definition take out the words riparian resource area so it would read instead, An area of varying width where development may have a negative impact on wildlife…on water quality, etcetera. So you’re saying it is separate, it is distinct, but then when you read riparian resource area it says the vegetation plus that buffer. And that’s how it has to be on the final plat, the whole area gets protected. And if the developer wants to do something in that buffer area that’s different than in the vegetative area, the riparian plan allows them to do that under number 4, Riparian Management Plan, sub 5, it says that they can submit possible change or use in that area that may be different than in the vegetative area for example…the example that we keep coming back to is like a well that wouldn’t be disruptive. So the regs already allow for being able to treat it different, as Laval has said, that OPG wants the flexibility to have to do that. So, anyway, thanks. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 16 of 68 Jennifer Clary: Thank you. Don. Don MacArthur: So I don’t remember quite the way Jackie remembers, I…at least what was in my mind was that we would have…I think there were reasons not to do this, but that we would split it into three definitions: a definition of riparian resource, which would essentially be what .96 is proposed to be; a riparian buffer area, which is the area of the varying width extending from the edge of the riparian resource; and a riparian resource area that encompasses both the riparian resource and the buffer area. I mean, this is what makes sense to me. Jennifer Clary: That’s exactly what I had in mind. Don MacArthur: And I want to know why not, I mean why shouldn’t…other than the fact that it’s not that way right now that’s…to me, that’s the…that’s what we’re actually trying to achieve here. There’s three different things: 1, 2, and the combination of the 2. Laval or Janet? Jennifer Clary: Janet. Jackie, while they… Jackie Corday: That would be another option. When I was looking at this, there’s a couple different ways you could go and that is one of the ways you could go is to have definitions: the vegetation, the buffer, and the resource area includes both the vegetation and the buffer, that is another option. And, yes, we did discuss that as well. Jennifer Clary: Thanks. Janet. Janet Rhoades: May I just repeat what you said to make sure I heard it correctly? So, you would like to change the definition for riparian buffer area to say an area of varying width extending from the edge of an area of existing riparian vegetation instead of a delineated riparian resource area? And that eliminates the circular definitions? Don MacArthur: No. Janet Rhoades: Okay, see, that’s why I repeated it. Don MacArthur: It’s extending from the edge of a delineated riparian resource, comma. Janet Rhoades: Take out area. Don MacArthur: Take out the word area. Janet Rhoades: So you didn’t want to say riparian vegetation, it just might be more clear. No? okay. Don MacArthur: No. Then the resource, then the riparian resource says, A stream, wet meadow, woody draw, wetland, or other body of water and land containing any of the habitat or community types listed in Exhibit E-5, or Exhibit 5, and then the riparian resource area is the riparian resource plus the riparian buffer area. Janet Rhoades: Yes, okay, yes. I’d like to take a minute to think about whether that would work. Staff’s biggest concern is we would like there to be two separately-delineated areas on the plat, a riparian resource, or resource area, which is what we’ve been calling it, and a riparian buffer area. And there’s a couple reasons for that. And for one thing, that is how we have been implementing it for all this time because this actually didn’t used to be a definition, riparian resource area was on our designation section and it basically called for a designation of a riparian resource area and a ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 17 of 68 buffer, so that’s how we’ve been doing it for as long as I’m aware of. It’s useful to have the riparian buffer area as a separately-delineated area for a couple of reasons: one, is because occasionally there might be uses that are appropriate in the buffer area that aren’t in the riparian resource area, generally we recommend conditions that have fences on the edge of the riparian buffer area. So the visual impact, I think, is essentially what Jackie is talking about where visually it looks like it’s all one area. But we do think it’s important to have a separate line with bearings and distances descriptions, which means they can be surveyed later, that is at the edge of the riparian area itself so that if there area different restrictions in the riparian buffer area, it can be clearly defined, where’s the buffer, where’s the riparian area. We heard that in 1994, there was about a nine-month process to write these regulations originally and apparently from scientists and many other people in the group felt it very important to have a buffer as separate from the riparian area. Depending on the type of the riparian area, you might need different things in the buffer. Sometimes the buffer is there largely for filtering water before it gets to the riparian area, sometimes it’s just to provide extra space between nesting birds and kids on swing sets. So the biggest thing we want to see is that there’s two delineated areas. So, I think that what you’re proposing could work as long as what we really want to see is the 3-130.3, under the designation where it says riparian resource areas and riparian buffer areas must be designated with bearings and distances so it’s clear that there are two. Laval Means: [inaudible, off microphone] Janet Rhoades: Yeah, it could be riparian resource, not riparian resource area. Jennifer Clary: Laval. Laval Means: I did check with Kirk on the notion of the three…of a three definition, and I think the only reason we didn’t bring it forward to you because it felt like it might be a different practice. But he said it’s pretty common and it could work. I think the key with it combined, what would be our new reference for riparian resource area is that it is basically helpful in looking at the way you write the standards, because it would group it all together as the riparian resource area. So that’s the main benefit of that third piece and then we still create the clarification of one distinct from the other, and then one overall, so I…he could work with it. Jennifer Clary: John. John DiBari: Just a process thing, I think we have a motion on the table and do we want to kill that? Don MacArthur: I’ll withdraw the motion. Jennifer Clary: Withdrawn. John DiBari: I’m the seconder, so I’m fine with that. Jennifer Clary: Okay. Don MacArthur: Do you want me to try to restate this motion? I’ll make the motion that we change…change .95 riparian buffer area to read, “an area of varying width extending from the edge of a delineated riparian resource, where development may have a negative impact on wildlife habitat, water quality and quantity, fish or other aquatic resources.” That’s part one of the motion. Part two of the motion is that we change .96 or whatever the right numbering is, to riparian resource, and the definition of that would be, “a stream, wet meadow, woody draw, wetland or other body of water and land containing any of the habitat or community types listed in Exhibit ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 18 of 68 And that there be a new definition which is .97 or whatever it needs to be which is riparian resource area, which says, and staff, feel free to wordsmith this one, but basically the intent is that it is the riparian resource plus the riparian buffer area. Jon Haber: Second. Jennifer Clary: Jon Haber seconds that. Any further discussion. Jonathan Haber: And I wanted to add, maybe what’s a friendly amendment to say…this…I assume this will lead to a numbering of conforming changes elsewhere, consistent with what current practice is. And I don’t know whether that needs to be part of the motion or not. Don MacArthur: The things that…and I’m not sure that this is true and staff should weigh in on this but the way I understand it is the things that are really important is that there is a separate definition of the edge of the riparian resource and the edge of the buffer and that the two of them together constitute the riparian resource area which is defined and used consistently through the document. I think…I’m not sure we’re going to need a lot of new definitional changes, but… Jonathan Haber: Well, I was thinking that whether it used to say these requirements apply to riparian whatevers, that they still apply to the same areas; and I don’t know how many changes that’s going to involve, but it struck me there would be some. I don’t know. Don MacArthur: I think it’s a friendly amendment to suggest that staff has the ability to go through each time these words are used and make sure that they’re consistent with the text. Jennifer Clary: Okay, before we vote on this, Jackie’s going to have one more comment. Jackie Corday: Thanks. I think that’s a really good change and I think it addresses both OPG’s concerns of wanting to have the two definitions separate and they can delineate…ask them be delineated separately but then if you would continue to use that language, riparian resource area, throughout all the rest of the regulation to mean both, so they both get protected. So, great. Jennifer Clary: Thank you. Any further discussion? Janet. Janet Rhoades: So as of this moment, I can’t think of anything wrong with that. The only thing I might suggest is that just so the terms match a little better, you have riparian resource, riparian buffer and riparian resource area instead of riparian buffer area. Somehow it just seems like that’s less confusing to me, I don’t know if you think so as well. Don MacArthur: Good idea, that’s friendly, I’ll take that as a friendly amendment from staff. Jennifer Clary: Second, you okay with that? Okay. Further discussion? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Seeing none, motion carries. Don MacArthur: So on 3-130 commentary. Is there a staff suggestion of what that should now be? Laval Means: You know, we can take this, fold this into starting the Article 3 discussion, if you want, as long as it doesn’t get lost. And what we’d have to do is strike the term area or…well, Janet’s looking at it based on the three different definitions, so I guess I’m buying time if we start looking at 3-130 in general. Would that work? Jennifer Clary: Sure. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 19 of 68 Laval Means: Thank you. Jennifer Clary: Tim? Tim Skufca: There was some discussion last time about adding a definition for agricultural land versus just agriculture and I don’t see any development in that. Laval Means: Are we back? Yeah, that was a direct motion to us. So we were just focusing on the things that were follow-up items. Tim Skufca: Oh, I’m sorry. Laval Means: Thanks. Don MacArthur: Does anyone remember exactly where we left off? I have a tab that says we were at the PUD, but did we get all the way through PUD or were we…? Jennifer Clary: No, that’s where we stopped. I think. Don MacArthur: It looked like we stopped after the affordable housing section. We were 3-120.2. Jennifer Clary: I think we were at .1 of 3-121. Don MacArthur: I think we talked about didn’t we? We had the thing that was… Jennifer Clary: We asked for Laval to clarify with state law. Don MacArthur: Well, and we got a recommendation back from Kirk saying that he would revise the definition of PUD and incorporate the suggested changes into 3-120. Laval Means: Any other revisions to that section were pretty minor, so I might have jumped onto 3- 130, but we’ve just done some clean up under the general revisions. Don MacArthur: I didn’t have anything else on 120, so I’m ready to go to 130 if everyone else is. Jennifer Clary: Okay. 130. Go ahead, John. John DiBari: I don’t want to open up a huge can of worms, but in 130 C( that existing language that states that streams, channel…I’m sorry, that stream channels and banks are protected. And I was just wondering if anyone might have a comment on as to whether either now, if it’s important enough, or at some future time we contemplate channel migration zones as an option there, too. Jennifer Clary: Go ahead. Michelle Hutchins: I think it might be a possibility, but I don’t think I can say at this time that those should be included, so… Sharon Reed: Could you speak into the mic, please. Michelle Hutchins: Oh, yes. I said that I’m from the Water Quality District, Michelle Hutchins, I think that there’s, you know, would be something to look at in the future as to whether or not to look at channel migration zones but I…I don’t think that we’re ready…we’re at the point with those where we would want to suggest that be included at this time. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 20 of 68 Jennifer Clary: Okay. Ruth Link: I’m Ruth Link, I’m with the Missoula Organization of Realtors and channel migration zones are actually one of the things that we really supported the idea of. However, we don’t have them for most of the streams and waterways in Missoula. So it’s not something that would make sense to be added at this point. But if we do get to that point where we have them, I think it’s a conversation that we’d definitely be interested in having. Jennifer Clary: Thank you. Yeah. John DiBari: Okay, I’m fine with leaving it. Jennifer Clary: Okay. John DiBari: Can I keep going? Jennifer Clary: Sure. John DiBari: Okay. Laval, you might have to help me out here a little bit, I am on, let’s see, the next page—3-38; and it’s under Riparian Management Plan. And it appears to me that it…you struck by the City Council to provide approval explicitly in that section and I’m wondering if it’s…the reason why you did that is because it would be superfluous to add it. And if not, I would like to make a motion that we put it back in. Are you with me where we are? Laval Means: Yeah. I’m where you’re at. So, it used to say approval of the Riparian Management Plan by the City Council was required as a condition. I think you were…Janet’s going to have to answer to when that actually comes in. I believe that the Riparian Management Plan is something that is submitted later. So, that…and it hasn’t been the practice to require City Council review at a later point, so I believe that’s why that was struck. I need to confirm that with her and she’s working on another piece. John DiBari: Okay. Can just reserve that and come back to it. Jennifer Clary: We’ll just reserve that, absolutely. Laval Means: That would be great, I’m sorry. Could you ask Janet to come back, they’re conferring. Ruth Link: I just noticed that it is on B, the City Council approval is B on that. So I don’t know if that answers your question. Jennifer Clary: Oh, yeah. John DiBari: So that means they can’t alter it without approval, it doesn’t mean they adopt it, though, right? Don MacArthur: I’m pretty certain that you have to submit a Riparian Management Plan as part of your subdivision… John DiBari: Right and that’s why I was wondering if it’s superfluous… Don MacArthur: I think it’s superfluous… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 21 of 68 John DiBari: If we’re comfortable that the City Council is approving this, then we don’t need to put it back in. Do you have anything before 6, anybody? Don MacArthur: I had a question for staff on 4, again. All those new points are really kind of what you’ve been doing already, I’m assuming, and they’re just being laid out in…or are those new requirements of the Riparian Management Plan? Laval Means: Hang on… Jennifer Clary: Laval. Laval Means: They are generalizing the specific things that we’re looking for in the Management Plan, and they do get used that way, this is language that comes from the County Regulations, and the staff has really appreciated having this as a part of the up-front heads…heads up onto what’s expected in the management plan in the standards, here. So that’s how I viewed it as it’s a general description and then there’s more specifics in the submittal piece of Article 5. Don MacArthur: Just as a text tool question here, ,4 A(5), that last areas probably ought to be struck, you know. This would be a case where planned buffer to mitigate impacts of development adjacent to riparian resource, period. Laval Means: Yes. Don MacArthur: Instead of resource areas. Jennifer Clary: So just a staff recommendation? Don MacArthur: Yeah, I think that could just be a… Jennifer Clary: It doesn’t have to be a motion? Don MacArthur: Yeah. Jennifer Clary: Janet. Janet Rhoades: So just to clarify, your intent, then, is because now that riparian resource area means both, that the first four would have to be addressed for both the riparian resource and the riparian buffer. Is that correct? Yes. Okay, thanks. Jennifer Clary: Laval. Don MacArthur: But…so, are these four or five things, have they been, is that we’re already been doing, or is this new…is this just clarification of our existing procedure or is this new stuff? Jennifer Clary: Janet. Janet Rhoades: This is what was required in the County, and many of the developers’ representatives that we work with also do many County projects and so many of them have been using this to guide their idea of well, what should go in a management plan because the regs weren’t very clear here; and, you know, we kind of accepted that because it seems to work in the County. So this is sort of just codifying something that I wouldn’t say everybody’s been doing it, necessarily, but it was definitely fairly common for that to structure the Riparian Management Plan. Jennifer Clary: Laval. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 22 of 68 Laval Means: With Janet here, I wondered if she could respond to the earlier question that John had about the reason we struck the City Council condition piece. Janet Rhoades: My understanding is that’s not even related to a riparian question, it’s more of a regulation question of it’s kind of strange for the City to develop regulations that require the City to do things. The City has that authority because of these regulations, it is pretty much always going to be a condition of approval; but lots of things in these regulations turn into conditions of approval and they don’t specifically say that in the regulation, so it’s just kind of an odd sentence to have in there. It’s like the City is imposing a requirement on themselves, almost. It’s just kind of a weird statement. Jennifer Clary: Thank you. Tim. Tim Skufca: On .5 Subdivision Prohibition, it clearly states that no subdivision may be approved that creates lots that are wholly or partially within riparian resource, except for subdivisions, in which dedication of common area or parkland is not required. That gets back to the…that whole stacking issue that I’m still not clear about that if you break up a parcel small enough, then you don’t need parkland so then you can put lots in your riparian area? Janet Rhoades: Basically, the reason for this regulation is that it’s almost always considered to be better to have riparian resource areas, including buffers, in common areas managed by homeowners’ associations. So that definitely is the preferable option. The exception written in there is for small subdivisions, like two lots, three lots, where there’s no parkland required. There’s no reason, really, for them to do a common area; they don’t have to dedicate any kind of park or common area. So that exception is really just for the oddball subdivision: two lots, three lots (I think four and five are required to dedicate, yeah). Because if they don’t have to dedicate any kind of common area, it just seemed like kind of burdensome to require a two-lot subdivision to do a common area, do a homeowners’ association to maintain that and all that. Jennifer Clary: Don, I’m sorry. Don MacArthur: This is something that I also circled, but for a different reason. I circled the new or partially within riparian resource areas. I’ve done some subdivisions where there were lots that were partially within a riparian resource area and there was a logic to it—you know, they were either the riparian resource buffer had little kinks in it that were impractical to deal with around having in a common area; or, you know, there was a prohibition from any building occurring in the buffer area, but the lots actually did encroach into the buffer area in small amounts. And I, you know, this basically says there can be no private ownership of riparian resource area, period. And I’m not so sure that makes sense. Jennifer Clary: Janet. Janet Rhoades: Just to clarify, whether it’s in common area or not, it’s still a no-build zone and it’s still managed by…or there’s still a Riparian Management Plan that applies. I mean, I completely respect your points, staff’s perspective on that is that if there’s a homeowners’ association managing it, that’s more people sort of responsible. But also, it’s just a kind of a thing, if you have a riparian area or a riparian buffer area on your property, you feel like that’s your property; whereas, if it’s all in a common area, you don’t feel so much like that’s part of your backyard. And it seems like we’ve seen that riparian areas that have been dedicated in common areas instead of on private lots; they just seem like they’ve been managed better. It’s also easier that way to require a wildlife-friendly fence at the edge of the riparian buffer, which is a visual demarcation of this is where your yard stops, don’t put swingsets here, don’t put doghouses, ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 23 of 68 whatever, your yard stops here and this is where the riparian resource area starts. It’s harder to do that if the riparian area is on multiple lots. So just a perspective. Jennifer Clary: So just to clarify, too, you’re saying that if I’ve got a lot, then you’re saying you’d rather see it—the riparian buffer area, potentially—within a common area rather than as part of that person’s private lot, because of the confusion. Janet Rhoades: It is still private ownership, though. Jennifer Clary: I would totally agree. Janet Rhoades: It’s just private ownership of a homeowners’ association, it not necessarily dedicated to the public. Jennifer Clary: Sure. Janet Rhoades: It’s just not an individual private option. Jennifer Clary: This happened with a client of mine, where they were doing their house and literally, they could not put a deck at their back door because that was riparian area and that was the buffer area; and they didn’t know that when the purchased the lot, and it, you know, was very confusing for them. So, I think it would be better not to include it. Don MacArthur: It’s a subdivision, so that isn’t exactly the same thing. Jennifer Clary: But it was the subdivision that would have helped… Don MacArthur: They created… Jennifer Clary: Yeah, that created this issue for the person that purchased the lot. Oh well. Jonathan Haber: I guess I’ll ask my question that I had at the beginning, which was what was the intent of the changes being made here. I…my impression was it was just a sort of attempt to clarify, but it doesn’t seem to be doing that. Jennifer Clary: Janet and then… Janet Rhoades: Some of these things are just sort to clarify what our practice has been, we have been requiring that or at least very strongly encouraging that or it’s just been offered for quite some time now; because, if it’s in common area, then more often than not, the City accepts it as parkland. So for any project with parkland dedication requirements, that’s often just offered up. It’s kind of past practice. Jennifer Clary: Jackie. Jackie Corday: Hi, Jackie for Parks. In the agency comment packet, I know that you get a huge packet and you don’t have time to go through everything but this was one of the changes that park had suggested and the reason is, is because we have been…since I’ve had this position in 2004, and before, when I was a planner at OPG, this is one of the most important areas to protect. And if you have it all in private lots, then that means that they can put fences in it, generally, even if you put it in the covenants, no fences in the riparian area, it’s going to happen. They can replace riparian veg with Kentucky blue grass. So it’s the most critical thing is if you are…if it’s important enough to set aside a buffer, then it’s important enough to protect the buffer like you’re protecting the riparian resource area. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 24 of 68 So that is the whole reason why we made and suggested this change because I have been having to come to Planning Board for six years in subdivision after subdivision, asking for this to happen, as far as when I see the first design that the developers usually submit. They’ve got lots that go right up into the riparian buffer area, and sometimes even the resource. And then so you’re going to have all of those chopping it all the way up. And there’s just no point in having a buffer if it’s chopped all up by backyards and fences. And so what this does, is it says, no, you keep your backyards out of this very important resource. And if you’re a small lot subdivision, two, three, four, five lots, and you’re not creating common area, then, of course, that’s why there’s this exception in there, because you’re not going to be creating common area. So, unfortunately, then we’re going to have to come up with a design that keeps the house, maybe, out of the riparian resource, but the lot is still going to be in it. So it’s really, really important. Thanks. Jennifer Clary: Thanks. Don MacArthur: Could I ask Jackie a question? Jennifer Clary: Sure. Don MacArthur: So, if…isn’t the resource, and this is maybe rhetorical, but isn’t the resource just as important for a two, three, or four lot subdivision as it for a 15-lot subdivision? f Jackie Corday: It is very important. I don’t know how to separate this out, though. I mean, because when I first made the suggestion it didn’t have this exception to it, I just suggested in the word partially. But, then, there was email back and forth between Peter Neilson and Laval and I… and I realized yeah, if there’s no common area, what are we going to do; we can’t force them to dedicate common area when state law doesn’t require it. We’re going to have to have that exception. Jennifer Clary: John. John DiBari: I know this might a bit redundant, but I’d like to propose that we add some language to 5.a that states that all owners are subject to and must abide by the approved management plan, just to underscore…I am assuming that these smaller subdivisions would have to propose or put forward a management plan, so just to underscore the necessity for the individual lot owners to be good stewards of that riparian area. Can I make a motion? Jennifer Clary: I don’t know, did you? I think we need some comment. Go ahead. Michelle Hutchins: Michelle Hutchins from the Water Quality District. I just wanted to second what Jackie said. The Water Quality District really supports not putting individual lots into the riparian area. It’s been our experience that even though they have a Riparian Management Plan that they’re supposed to be following, it’s much more likely to be followed if it’s not an individual ownership, because somebody can put their animals on there to graze and the chances are the neighbors aren’t going to say anything when it’s part of their lot. If it’s a common area that everybody knows is a common area, then I think there’s a lot more of self-policing and you’re much less likely to have problems arise. Jennifer Clary: Thank you. Vickie Edwards: Hello. My name is Vickie Edwards, I’m the Missoula Area Wildlife Biologist for Montana Fish, Wildlife and Parks. Thank you for the opportunity to comment. First, I would like to say we wholeheartedly support OPG’s recommendations and their language within this 3-130.5 A. It is a recommendation that we have consistently given whenever we comment on subdivisions ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 25 of 68 where there is a parkland requirement and a common area and not only in the City of Missoula, but in other wells as well as in Missoula County, Powell County, and other parts of Region 2. Most recently there was a Stony Brook Subdivision, out on…I believe it was 3rd Street and there were a couple of parcels that encroached into the riparian resource area, and we did make the recommendation to pull those out. And, as mentioned by Janet, and Jackie, and Michelle, quite often what we end up seeing is that if this is in individual ownership, there’s always some form of encroachment that occurs. And that’s unfortunate because there are those landowners that don’t do that. However, whenever you have…it seems that whenever those common areas encompass both the buffer area as well as the riparian resource, there’s more opportunity for folks to conserve those resource values. And it’s not just someone mowing up to the riparian resource, or someone building a fence, or someone putting their…a playground within the buffer. So there is that sort of enforcement that comes with having that within…with the homeowners’ association; and it really does preserve the integrity and functionality of the riparian resource area, it decreases that opportunity for encroachment, it decreases the opportunity for fragmenting that important habitat, that amazing landscape, and I won’t go into the importance of it because you guys have heard it over and over again. And it increases habitat connectivity. So, I think because it is so important, really, to have it in the common area. It’s still in private ownership and everyone can take ownership in it and really appreciate it and conserve it for the values that it has. And if you have any questions pertaining to our comments or anything pertaining to riparian resource values, I’m here to answer those questions, and then you’ve heard from Kristi DuBois, our non-game species coordinator, she’s here to answer any questions as well. Thank you, again. Jennifer Clary: Thank you. Sure. Kristi DuBois: I’m Kristi DuBois, from Montana Fish, Wildlife and Parks; I’m a wildlife biologist here. And I guess I’m commenting with sort of a foot in each door as an agency person, but also I live in a subdivision that was large enough to have a riparian resource area and lots along there and so we have a common area that we have to manage as a homeowners’ association and one of the things that we’ve seen, not just with management of the riparian resource area but all the covenants in our subdivision is the original…the people that are the first people to buy those lots are given this package from the realtor and oh, yeah, this is great and this is wonderful, but then each subsequent buyer gets farther and farther from that information and it’s a continual battle as a homeonwers’ association to enforce our covenants. And, there again, I don’t know what you do with the small lots because then it’s up to those—the realtor and homeowner that selling it—to point out well, yes, there’s a riparian resource plan for the back half of the lot. But it gets even harder to enforce it. So it might be easy to say well, just enforce it, but who does that. And so that’s where it really does reduce enormously the number of headaches if, at least for the larger subdivisions, that there’s a distinction: my lot ends here, beyond that is not my lot, it’s a common area. And it really does reduce the headaches. And the thing about the larger subdivisions is you’re impacting generally a larger stretch of riparian habitat as opposed to…you know, I’m not saying that it’s good for the two, three, and four lot subdivisions to not have that. But, again, state law doesn’t require it, so we can’t make them set aside a common area, it doesn’t make sense for those little ones and they’re usually impacting only a tiny portion of the resource that they’re backing up, because it’s a small subdivision and not a large one. So, for the larger subdivisions, we feel that this is really important. Thank you. If you have any questions, we’d be happy to answer them. Jennifer Clary: Thank you. Don. Don MacArthur: Janet and Laval, I guess I’d…this seems to depend, to me, on how the buffer area is determined. I mean, if there’s some flexibility about how wide the buffer is, then this is a moot point. You know, if the buffer,…if there’s a particular problem with a lot and you guys can say, well ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 26 of 68 the buffer area only needs to be 48 feet here in order to deal with this then I don’t see a problem with wholly or partially. If there’s no flexibility about how wide that buffer area is, then this doesn’t seem like a good text to me. And we’re talking about an urban situation, here. Most of the riparian areas that we’re talking about are urbanized. We’re not out in the County. I mean, we are talking about places where we might be subdividing right on the urbanized front of the Clark Fork River, and I don’t think these regulations were written for that. And the more we kind of think about these things as rural within an urban construct, the more we…and write sort of increasingly tough regulations about nothing ever goes into the riparian buffer area, the more of a problem we’re going to have. So my question back to you is around the buffer…the buffer area, how is that determined and is it flexible and does it…is it…you know, if I tell you I’m on the Clark Fork River, do you tell me it’s 100 feet from the top of bank? Janet Rhoades: So it’s flexible until it’s fixed, does that make sense? So where the buffer is, is flexible in the sense that the regulations don’t say you always have to have a 20 foot buffer, it depends on the situation. So we rely a lot on agency comment, we look partially at what the developer proposes. So if, for instance, at City Council, maybe, we’ve had a condition saying that the buffer shall be extended 20 feet to the north and the lot lines of Lots 1, 2, and 3 shall, you know, be adjusted to accommodate that. So then the lot lines get shifted with the buffer. If there’s issues like, oh, well, if you do that, there’s no buildable place on the lot, those are things we take into account. And it may, in some cases, mean that lots need to be reconfigured or just removed. But those are issues that we tend to work out on a case-by-case basis. Don MacArthur: Okay. I’m good with the lang…if we can…if you could just move the buffer to accommodate the problems, I don’t think people need to necessarily…I still am a little bit in question whether we should prohibit the ownership of riparian area, period, in larger subdivisions. I’m…I don’t buy into that, I don’t really see that that’s right, but I understand the arguments that Jackie’s made. I certainly understand that we’ve seen a lot of subdivisions where it has been a tension and I understand that if you do have a lot that you own that has riparian area within it, it may be that you could misbehave with that riparian area. Just as the person could have misbehaved before the subdivision was done and ripped it out, the way we talked about last…two weeks ago. So, I don’t know. I’m not sure I’m willing to let it…I guess I’m willing to let it go with the idea that the buffer is flexible and we probably can handle whatever things would need a variance by just adjusting the buffer. Jennifer Clary: John and Jon. John DiBari: So is this what I said just a few minutes ago. Jonathan Haber: The possible motion? John DiBari: Yeah, the possible motion. So, yeah, I’ll make that as a motion, that I’ll move that all owners are subject to and must abide by the approved management plan as an addition to .5 A. Again, just to reiterate the fact that they need to be good stewards of this area. Jonathan Haber: And I’d be interested in seconding that, but if I second it, can I then amend it? Don MacArthur: Does it belong in .5 A? I mean, this is subdivision prohibition. John DiBari: Is there a better section, Janet or Laval? Janet Rhoades: Can we confer on that for a minute? John DiBari: Sure, we’ll come back to it. Jon can make his friendly amendment. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 27 of 68 Jonathan Haber: Well, let me ask a question, see if it needs it, is there…I mean we sort of disparaged cov…I’m…I guess in response to a…I have the opposite concern that…that we need to do more in these smaller subdivisions and is there any requirement currently in here that says that even though covenants are not very effective, they’d be more effective than nothing. Is there any requirement that they have covenants that protect the riparian areas? Janet Rhoades: The Riparian Management Plan is typically attached to and referenced in the covenants. So, in all effect, it’s part of the covenants, all the management requirements in the Riparian Management Plan. Does that answer your question? Jonathan Haber: Yeah, and maybe that makes the proposed language even more superfluous, but I’d still vote for it. Jennifer Clary: Okay, so we have a second. Do you want to repeat the motion? Will you repeat the motion again, John. John DiBari: And are we still looking for the most appropriate place for this? Jennifer Clary: I think they are. John DiBari: They’re conferring. Okay, so the motion was that all owners are subject to and must abide by the approved management plan. Don MacArthur: To me, it belongs in paragraph 4. John DiBari: Fine by me. Jennifer Clary: Laval or Janet. Laval Means: That’s where we were heading, also, is to…since it’s about the Riparian Management Plan, put it under 4 as a new sub C. John DiBari: Great. Jennifer Clary: Okay? Any further discussion on that? Oh, Janet. Janet Rhoades: And just an addition, you could leave it like that if you wanted or you could say something to the effect of, under C, that the Riparian Management Plan shall include a provision that all owners of the riparian resource area, just what you said, if you’d prefer. John DiBari: Even better. Jennifer Clary: Okay, is that friendly? Jon? Jonathan Haber: Yes. Jennifer Clary: Okay. Don. Don MacArthur: So is the intent here to get this information to the owners. I mean, I think we heard testimony that one of the problems is that the subsequent owners, not the first owners, but the subsequent owners don’t really know that they have this responsibility. John DiBari: Yeah, I think it’s multifold that one, because there is no homeowners’ association that’s charged with carrying out or executing the management plan that it’s incumbent…it’s ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 28 of 68 important that the individual landowners are made fully aware that they have a responsibility to be a steward of this area and, hopefully, ensure that that information gets to them...to all homeowners. Don MacArthur: Is there anything we can do to list it more, you know, in a place that everyone would find it during title search or could it be listed on the…deed or face of the plat or is it already listed on the face of the plat? Janet Rhoades: I’m sorry, is what already listed on the face of the plat? Don MacArthur: The fact that this parcel is or the common area that you’re abutting is subject to a Riparian Management Plan. How do you know that that’s… Janet Rhoades: That’s often, and we could make a point to include that more in the conditions. But often that’s…the riparian areas are symbolized as no-build zones and under that, often it says no-build, no alteration zone, see definition in covenants, or see definition in Riparian Management Plan. If you wanted the specific words, Riparian Management Plan, to be face of the plat, I would think that would be something easier to just start implementing than actually make a regulation about. But it’s a good idea. John DiBari: So are you suggesting that the language that you proposed would be a better option than including it in the regulations itself? Or would you have to create a regulation that said that the resource…that there is a reference to the Riparian Management Plan on the face of the plat? Janet Rhoades: I think that just with that direction…I mean, there’s nothing in the reg…it seems like that would be a reasonable implementation of the regulations as written. If you wanted to make extra-sure that it was on the face of the plat, maybe that would be a final plat requirement instead, so we could look at the final plat requirement section and then make sure that somewhere, maybe next to where it says no-build zones that we could just say that there’s a phase saying that the riparian resource area on this property is subject to Riparian Management Plan or something like that. Is that kind of what you’re going for? John DiBari: That would mean withdrawing the motion, right? No? Jennifer Clary: No. Laval Means: The motion that you’re making provides the direction, additional direction and clarification for all owners, not just the homeowners’ association, and then the other part that I think we were talking about was how does the property owner know. And Janet is saying that we typically would make a reference from the no-build, no-whatever it’s called… Janet Rhoades: No alteration zone. Laval Means: No alteration mapping on a final plat to say to know what all this means, see the definitions in the covenants. That’s been the practice. If you want to memorialize the practice, then it could be a…something to add to the final plat submittal requirements in Article 5. John DiBari: Okay. Let’s pick that up when we get to 5, how’s that? Jennifer Clary: Okay, so your motion is on the floor, it’s seconded, let’s vote on it. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 29 of 68 John DiBari: Can I go on? Jennifer Clary: Let’s see. I guess we’re at…you just went…so we’re still at…are we doing nothing with then… Don MacArthur: You know, I’m not…I don’t think I’m in the majority here, but if it were me, I’d be making motion that struck, took away the stuff that was changed in there. Leave it the way it is. And I’m all for the protection of riparian resource, and resource in general, for the common good. I just have the feeling that this is going to end up being a real pain the neck and it’s going to be a holy fight over the next couple of subdivisions. But…I don’t think there’s enough support to make a motion. Jennifer Clary: Heidi. Heidi Kendall: What are you proposing removing, Don? Don MacArthur: I would propose that we don’t change it from the way it was written originally, so removing the strike-outs and additions. Jennifer Clary: Oh. Don MacArthur: I mean, other than if there are state law questions, but… Heidi Kendall: In the subdivision prohibition one? Don MacArthur: Yes, in .5A where it says…you know, I guess it would read… Heidi Kendall: So you would not…you would want to do something that would negate what John just proposed and we voted on? Because…no? Don MacArthur: No. John, I think, just added that people be made aware of the Riparian Management Plan, which is still in effect no matter whether there are lots that are wholly or partially within a riparian resource. There’s still a Riparian Management Plan, either way. So all I’m…the only part I object to is the lots…that no lots with…partially within the riparian resource area. I think that there are going to be cases where that’s not right, but I’m not going to make a motion, because I don’t think I’m in the majority, here. Jennifer Clary: Okay. John. John DiBari: I may have expended my capital already, but I’m going to make another motion and that is to…before we get to road construction, add an item that addresses fencing. So the motion is fences are prohibited…prohibited within riparian resource area. Wildlife-friendly fencing may be appropriate on lands abutting the riparian resource area. Don MacArthur: So this is a new John DiBari: A new Don MacArthur: Road construction would be a John DiBari: Right, or however it fits into that scheme of things. It seemed like that was a good place for it to go because then it talks about roads and then trails and then we move on. So I don’t care where it goes in there. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 30 of 68 Don MacArthur: Haven’t we had hours of discussion about fences along riparian areas. Jennifer Clary: Yes… Don MacArthur: And that sounds pretty darn simple. I don’t know if that covers everything. I mean, we’ve had like five different cases where fences were either okay or not okay and I’m trying to remember whether they were ever in the riparian area, resource area. Jennifer Clary: Jackie. Jackie Corday: Parks…we have always recommended that they are not within the riparian resource area and that wildlife-friendly fencing is on the boundary, if they want fencing. That’s, so, John, you’re correct in what your memory, if that’s what you’re going from is memory, yeah. Don MacArthur: So if there’s a crossing of the resource area or there’s a…I mean, somebody has a road that goes across or…no fences. Jackie Corday: To distinguish boundary lines, because riparian areas often go beyond the subdivision, right? So if you need to have a fence on a boundary line, that’s different. If…but what we’re trying to prevent is… Don MacArthur: But his motion… Jackie Corday: …putting fences into the riparian area. Don MacArthur: But his motion just prohibited doing it on a boundary line. Jackie Corday: No, you said wildlife-friendly on boundary line? John DiBari: I said abutting the riparian resource area. Don MacArthur: Yeah, abutting, but what about if it goes… Jackie Corday: Which would be the boundary line… Don MacArthur: …through? Jackie Corday: …of the riparian resource area, which now includes buffer, which always has included the buffer. Don MacArthur: So if the property line cuts through a resource area, then that is abutting or is that going through. Because I think what John was trying to get at was a fence that was, you know, against the buffer area, not a fence that cut through a resource area, which might still…there might be a property line that needed to be defined for some reason. John DiBari: So are you envisioning that one of these lots that we just created that was partially within the resource…I’m… Don MacArthur: I’m envisioning a common area that abuts somebody’s land who grazes cattle wants to keep the cattle out of the riparian resource area of their own common area. John DiBari: Right. So why wouldn’t wildlife-friendly fencing be appropriate there? Don MacArthur: I thought that your motion got rid of having a fence in the riparian resource. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 31 of 68 John DiBari: Well if it’s somebody else’s land, right. I think that’s a…so my idea was that there wouldn’t be fencing bisecting riparian resource areas. Don MacArthur: Period. John DiBari: Period. Don MacArthur: So if somebody’s running cattle next to you, you let them come down the riparian resource into your common area. John DiBari: I’m still not sure how that would not fit. I mean, at some point they would need to be fenced, right, in there. Show me an example, draw me a picture, I’m not getting it by words. Jennifer Clary: Heidi, do you have a comment? Heidi Kendall: I have a process comment. I don’t always want to be whining about how late it’s getting, but we have made very, very little progress; and I keep thinking back to the original memo and the meeting from last time when Laval made the point several times that this is kind of clean up, and this is for getting the subdivision regs consistent with the new zoning code and state law and getting it straight with the County Subdivision Regulations. And I am going to make a plea that we try to honor that a lot more than we’re doing so far tonight, because it’s going to be so tempting as we go through this for the rest of this evening and who knows how many more evenings, if we’re going to go at this pace. There are going to be so many times in this document that we’re going to want to make a change and we’re just going to have to resist it, I think. I mean, we’ve gone quite a few things already, and that’s all I need to say about that. But that’s really how I’m feeling and I think I’m going to start voting against things on that principle. Jennifer Clary: John. John DiBari: This is a brand new section, so the whole thing is up for grabs, correct? Laval Means: Well, we had a starting point here, where we’re working from the riparian resource we had before and we’re working on trying to create some consistency, so. Jennifer Clary: Don. Don MacArthur: I… Laval Means: The introduction… Don MacArthur: I was going to both agree with, I think, both comments that were just made. I agree with Heidi that I would like to get done with this and move faster; and I agree with John that part of the reason that we just have hit a dead stop when we hit the riparian is because it isn’t as advertised, it is a new section. I mean, this is pretty much brand new text. Every page is almost all underlined or strike-out. So that, I think, is…it is a significant departure. At least, it may not be a departure from the way business has been being done, but it a departure from the way the language is written. And so it probably does warrant a pretty darned close look. And I guess I was going to proposed that maybe we should table our discussion on riparian for the moment and see if we could go through the rest of it. I mean, I don’t really want to just rush through the riparian in order to get to the rest of it, which I…in my mind, the changes were relatively minor in, so I would prefer to do the relatively minor changes and then be able to spend an appropriate time dealing with the riparian standards. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 32 of 68 Jennifer Clary: Okay. So, yep, Jon. Jonathan Haber: It’s the possibility that some people are here because they knew the riparian discussion was going to be tonight. Jennifer Clary: Yes. And I feel like, and, you know, we don’t have that much further to go, although I know there’s some important last pieces to this, which is trails. Do you feel like we could at least get through and and then John’s motion that he just created and then kind of…hillsides is the only thing that has some additional underlines and I know that’s just to clarify it with what’s been done previous. But, beyond that, I feel like there’s just small thing. Don MacArthur: Okay. Jennifer Clary: So, I think…everybody in agreement that we could finish riparian right now? Or do you want to table it? Jonathan Haber: Well, I’d like to add…add to pile that the only thing I…the only additional comment I had in the section was one that we just skipped over, so I would want to go backgrounds a step, which .5 B. Jennifer Clary: Okay, so what I’m hearing is that we’re going to continue with riparian, let’s finish this out and we’ll be able to fly through the rest. Janet. Janet Rhoades: I think I may have a relatively simple solution the fencing problem, if that helps. Jennifer Clary: Okay. Janet Rhoades: One of the things that we are doing here, and where much of this language comes from is the County Regulations. And in the equivalent section of the County Regulations, they specifically say…I’m not going to read the whole thing, but they essentially say, including fencing after development of any kind. So speaking of .5 B, if you look at .5 B, the new section, no development of any kind including fencing or removal of vegetation…and then the rest. Does that seem like that at least addresses the fencing issue? It’s the way that the County addresses it. I just thought that might be a simple solution for you. Jennifer Clary: John. Yes. John DiBari: So does that mean that if fencing is proposed in the Riparian Management Plan and that riparian plan is approved, you get fencing, right? Janet Rhoades: That’s correct. But that doesn’t mean you could just build any kind of fencing in the Riparian Management Plan. I mean, that is something that is approved by the governing body and it’s influenced heavily and sometimes conditioned based on agency comments. John DiBari: Sure. Janet Rhoades: And it’s still has to meet all the low impact, not harming the riparian stuff. John DiBari: Right. Janet Rhoades: So, like, for instance, wildlife-friendly fencing would be something that might be permitted but we might require it as wildlife-friendly. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 33 of 68 John DiBari: So, just to reiterate, I mean, my intent here was to do a good job of protecting the riparian resource area, which we just spent a lot of time defining. And we know that fencing is a potential impediments to the functioning of these areas. So my intent is to minimize or perhaps even eliminate the opportunity for putting fences in areas that we know they shouldn’t go. So it would be great to have a few comments from those folks who have a vested interest in this to help us nail this down or the motion stands. Or, I don’t know if it’s been seconded, did anybody second it? Jennifer Clary: Oh, you did second the fence, yep. So, if anybody has any comments, quickly, please. Vickie Edwards: Hello, Vickie Edwards, again. Let’s see here, fencing of riparian resource areas. Quite often we do comment on placing fences on the outer boundary of the riparian resource areas because, and it’s wildlife-friendly fencing, because it keeps those lots and those folks from encroaching into the riparian resource area. So, we do support wildlife-friendly fencing then. However, fencing that isn’t wildlife-friendly we’re definitely not as supportive of; and also, within the riparian resource area a lot of times that’s in a flood area, so there’s some hazards associated with that. So, we are supportive wildlife-friendly fencing and as John has mentioned, on that outside buffer area, the resource area, keeping the other lots from encroaching into the resource area. Thank you. Jennifer Clary: Thank you. Don MacArthur: So as a discussion point, I’m going to vote no on this because I don’t think that…I don’t think that we’ve considered it carefully enough and I think there’s going to be cases that would go against this and I think it’s already covered, as Janet pointed out, by no development of any kind…except, as a, you know, pre-approved. So that’s…it’s not because I don’t support the idea of the motion, it’s because I don’t think that we can fully flesh out all the consequences right here. And I think we already are doing this pretty well, through our subdivision conditions. So it’s the don’t mess with something that isn’t broken attitude. Jonathan Haber: Well my question had to do with the bold statement that this paragraph starts with that says must place development outside riparian resource area and if you look at the definition of development, I think that includes fencing. And then it appears we counter that by saying, oh yeah, well you can actually put development outside riparian resource areas and so…or inside riparian resource areas. I’m wondering if the intent is really to make it all contingent on management plan, that’s probably what we ought to be saying, but that seems to create too much flexibility. So I don’t want…where we really stand in this paragraph, it seems like there’s…we’re in two different places. Don MacArthur: That’s a good point. Jennifer Clary: So, okay, are you throwing out your second thing, because you seconded the fencing. Jonathan Haber: I don’t think I seconded the fencing, I think I seconded the one before that. I guess the record will tell me. So if I did second it, I’m withdrawing it. Jennifer Clary: Okay. I think that’s what happened. So, John. Don? John DiBari: So my motion died for lack of a second? Jennifer Clary: Correct. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 34 of 68 John DiBari: So maybe the thing to do would be to add fencing into B as Janet suggested, just so we have it explicitly stated so that we address it in the Riparian Management Plan. What do you guys think? Jennifer Clary: Is it already in the Riparian Management Plan that discusses where fencing can be located and what types of fencing? Janet Rhoades: If there are any kind of fence proposed in the riparian resource area that wasn’t in the management plan that would probably be caught in sufficiency. Otherwise, you know, we might request a provision saying no fencing required. I know that I’ve used that particular phrase in the County Regulations to require that before. Most fencing is boundary fencing, though, which isn’t exactly in the riparian buffer, it’s boundary, and it’s something we require, so…well, the governing body requires. Jennifer Clary: So, do you feel like it is important to have after no development, including fencing of any kind or removal of blah, blah, blah. Janet Rhoades: I think that that’s been helpful in the past. But I think based on everything else in this chapter, we could do without the fencing specific provision as well. Don MacArthur: I still want to go back to Jon Haber’s question because it seems to me that the two first sentences of this paragraph B don’t agree and we need to make them agree, first, and then deal with the fence issue, if we want to specifically call it out. Jennifer Clary: Okay let’s do it that way. And then we’ll… Don MacArthur: And I think the reality is that the second sentence is really the right sentence. That the first sentence should probably be struck and the second sentence should be the first one and it says no development of any kind or removal of vegetation may be approved within riparian resource areas except as outlined in the Riparian Management Plan approved by City Council. Jennifer Clary: And strike that last sentence, is that what you’re saying? Don MacArthur: No, I’m just…the last sentence is still there, but we would just strike the first sentence altogether. Jennifer Clary: Okay. Don MacArthur: That’s a motion. Jennifer Clary: You don’t want to include fencing in that? Don MacArthur: Well, let’s strike the first sentence first and we’ll see if we want to amend the second part to put fencing in there. Jennifer Clary: Okay, do we have a second for that. Jonathan Haber: I guess I’ll second for discussion, I’m not saying I’ll vote for it. Jennifer Clary: Okay, seconded by Jon. Jonathan Haber: I’d like to get the audience response. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 35 of 68 Jennifer Clary: Further discussion. Okay, seeing none. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Let’s revisit fencing. Don MacArthur: So is there a way to add this no development of any kind may be approved within riparian resource areas except as outlined in the Riparian Management Plan. Do we…we could add a parenthesis in there and say, you know, wildlife-friendly fencing is, you know, is it disapproved, this includes fencing or is it not…I mean, I don’t think we have a clear definition. We’ve heard that it’s good to have wildlife-friendly fencing sometimes in the riparian resource area and other times it isn’t. Isn’t that what I heard from the…I mean, that you liked the idea that there was a wildlife-friendly fence on the edge of a…on the edge of a property sometimes in a resource area. Vickie Edwards: I apologize, maybe I didn’t explain myself very well. Vickie Edwards, again. A lot of times our comments will come in stating that we would actually like the riparian resource area fenced off from the lots. So it would be on the periphery of the resource area, still within the common area, but it would be right on that boundary line between the lots and the common area. And then that keeps the encroachment from the adjacent lots of mowing into the riparian buffer… Don MacArthur: So…so let me interrupt for a second. Vickie Edwards: Sure. Don MacArthur: You have 100 acres and there’s a stream that runs through the 100 acres. And there’s a common area that runs along that stream, so there’s two areas where you…the property in question, the subdivision in question has a riparian resource area that crosses over into adjacent owners. Fence, no fence? Vickie Edwards: How many lots do you have? You see, it all depends on… Don MacArthur: Well if it depends, if you would ever recommend fence, then I think we should say…not say don’t ever put a fence in the riparian resource area. Vickie Edwards: Yeah, I see where you’re coming from. I guess the only time that we ever recommend fencing in the riparian resource area is to keep that encroachment from occurring, from the adjacent lots. And that’s the only time that we recommend that any sort of fencing in the riparian resource area. Does that help? Don MacArthur: No. Not really… Vickie Edwards: I’m sorry. Don MacArthur: Because I don’t know whether to consider the adjacent, the neighboring parcel… Vickie Edwards: Yeah. Don MacArthur: …you know, the 3 acre parcel that is Vickie Edwards: Right. Don MacArthur: …is that an adjacent parcel that should have a fence off of this, you know, or is it part of the riparian resource area and we have to just depend on their good stewardship of it and… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 36 of 68 Vickie Edwards: Well, since they’re not up for review, we just have to depend on their good stewardship at that time. So, and, Kristi, do have anything to add? Jennifer Clary: I’m going to have Janet talk and then Kristi. Janet Rhoades: So if it helps clear it up, it doesn’t prohibit fences, it just says no fences except as outlined in the Riparian Management Plan approved by City Council. So what you’re saying there might be situations where, yeah, we need fences in the riparian area, but if they are in the Riparian Management Plan, they are addressed, there’s a specific reason for it, that is allowed. So it’s not just an outright prohibition on fence. Don MacArthur: Right. Fish, Wildlife, and Parks gets to comment on the wildlife…on this plan, and if they think it’s a good idea, they say yes; if they think it’s a bad idea, they say no and we get to consider that. Janet Rhoades: Right. Jennifer Clary: So leave it without fence…fences. Don MacArthur: That’s kind of what I think. Jennifer Clary: Yeah. Kristi DuBois: I was, this is Kristi DuBois, again, from Fish, Wildlife and Parks, but I was assuming that, and I know you keep asking about boundary fences—most of those property boundaries are already fenced at the time they go subdivide and…and so I was assuming if you’re talking within the riparian resource area, well the neighbor’s riparian area isn’t part of the riparian resource area because the neighbor’s not subdividing, right? And so I would think that having language so if we wanted to require that outer boundary fence to be changed or built to wildlife-friendly specifications but yet it’s necessary to have it there to keep cattle or whatever from an adjacent rural landowner, that that would be appropriate, so. Just a clarification, I guess, a question clarification for you to ponder. Don MacArthur: Well that says that there’s no riparian resource if you’re not subdividing, which I don’t think is true. Kristi DuBois: Again, I’m thinking about our situation where I live in a subdivision that has a riparian area. We border the Grant Creek Ranch and they graze and so we have to have a boundary fence that goes down in to the riparian area to keep the cattle out. But that’s…their side of the fence is riparian habitat but it’s not a riparian resource, it’s not part of our riparian resource area because that’s their land. So I guess it’s a kind of a definitions thing. The riparian resource area is only what’s defined within a subdivision, and I think what we’re…what we’ve been commenting on with Fish, Wildlife and Parks are the internal fences within the subdivision more than anything else, to kind of demarcate the line between the riparian resource area and the individual lots; and in some cases, we’ve commented on fences between individual lots as well, where we want wildlife to be able to filter through those lots. That’s more common in County subdivisions than in City subdivisions, though. Jennifer Clary: Thank you. Kelley. Kelley Durbin: It’s just feeling like to me that Don is right, that that is going to be addressed in the other plans, and I think it’s already there. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 37 of 68 Jennifer Clary: Yeah, I think John’s dropping it. So, what I’d like to do is take a break and then we’ll pick back up on .6 road construction. Janet. Janet Rhoades: And did you guys skip the designation section? Jennifer Clary: I think we already…did we already cover that, though, with our… Janet Rhoades: Staff has some suggestions that would bring that in line with the new…the three definitions that you just approved. So when we come back… Jennifer Clary: Okay, why don’t you go ahead… Janet Rhoades: I just wanted to let you know that we have that. Don MacArthur: Let’s do it now. Jennifer Clary: Yeah, just do that now and then we’ll take a break. Janet Rhoades: Oh, just do it now? Okay, so we just want to make sure that…now that we have three definitions that we’re getting them now. So, the first sentence, unless otherwise expressly stated, the term riparian resource area also refers to riparian buffer area, that’s essentially not needed anymore, since we now have a definition that says that. So we would recommend striking that. And then, in the second sentence, just to reflect the fact there’s now three, so it would say riparian resource areas are riparian resources and riparian buffers must be designated with bearings and distances. Jennifer Clary: And strike the commentary. Don MacArthur: I’ll move that. Janet Rhoades: And strike the commentary, too. Jennifer Clary: Do we have a second? Heidi? Heidi Kendall: Second. Jennifer Clary: Seconded by Heidi. Any further discussion? Seeing none, voice vote. All in favor say “aye.” [Five Board members answered “aye.”] Any opposed? [Two Board members answered “nay.”] Jennifer Clary: Okay, motion carries. We’ll take a five-minute break, maybe even ten, no, five, and then pick back up on .6 Road Construction. [Break 9:16 p.m.] [Meeting reconvened at 9:26 p.m.] Jennifer Clary: Okay let’s call the meeting back to order. Okay, so we’ll pick back up with .6 Road Construction. Any concerns, comments, questions? Don. Don MacArthur: So just to maybe comment, I think this was the section that was most commented on by the development community in the form of MOR and MBIA and concerns about access to subdivisions. And I guess what I was hoping was that we could get a summary from staff about the intentions and the process that generated this road section. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 38 of 68 Laval Means: Sure. Sometimes it’s a little hard to track the place we were coming from to the place that was proposed here. But the language that’s at the very bottom of this Page 3-39 gives you the idea there. The prohibition on road construction—there was this fundamental message that no proposed roads should be approved in the area riparian resource unless and we had this vague unless language. And the concern was going back to try and to clarify some unless situations. And what happened was we know that from the City Zoning Ordinance approach, in that ordinance, we just struck all the unless pieces of it and wanted to send the direct message that no roads should be permitted…or roads should be prohibited, rather, in the riparian resource area. Anything that is a road would have to go through variance process. So that was the message and the approach in the City Zoning Ordinance, and we were trying to align with that. We brought that in here and we did a lot of comment about being that kind of cut off, I guess, from any…from options or if there was an option, it would have to be a variance. So we continued to look around and listen and hear what the comments were and felt that a fair approach for an exception would be in a situation when it’s the primary access to the subdivision. Now I can’t remember the language that we put…practical route, there it is…unless there is no other practical route to access the subdivision. That seemed to be an appropriate exception because that’s one of those situations where boy, if you wait for a variance, and we don’t really know if you’ve got the variance until the very end, you’ve designed…you’re well down the route towards this approach, and then it changes things considerably. We also used this statement, this exact statement, no other practical route to access the subdivision, because that has been the exception in the County. And we liked the fact that this is…it’s been tested, it’s been used in the County for awhile, it’s the same approach, the same language, creates the consistency for the development community, for how they address a situation for road, either in the County or the City. So that was the second reason that we came to use just exactly that language. Don MacArthur: So the…the variance language, is that inherent in the first sentence or I mean, it…road construction’s prohibited within riparian resource area except where there’s no other practical route. So if the determination of staff is that there’s no other practical route… Laval Means: It wouldn’t require a variance. Don MacArthur: Then there’s no variance. Laval Means: Right. Don MacArthur: But for any other, you know, yeah. Because you’re just making it super clear that you have to get a variance if there’s any other attempt at justification. So the other…I was reading through the first paragraph of the old road construction and it…basically, the difference is, is that you could have a road for the purpose of crossing a stream, gaining access to a body of water, or maintaining existing roads for flood control. I kind of like the new language better, I think, it’s a lot simpler and less ambiguous. And it matches the county… Laval Means: It does. Don MacArthur: Yeah. Jennifer Clary: Okay. So we can move on to then? Trail Construction. Laval Means: One of the things to note on the…what you see struck out under the Trail Construction is looking at that…the feeling was a good majority of…well, several of those sentences are really descriptive about what a trail is, and it didn’t seem to really contribute to whether it can be constructed in a riparian resource area or not, and what the standards would be. So, we didn’t actually just strike this but what we did instead was move much of this, if not all of ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 39 of 68 it…much of it to a place in the design standards where we talk about trail. And so we place it in 3- 020, under I don’t know if it’s the non-motorized section or if there’s a trail section somewhere. So that is moved, actually, and a better place to describe trail for any kind of trail. And then, after that, we had tried to take a clarifying approach to trail and when it would be permitted and in what type of resource it would be permitted. And we did an earlier draft that was saying no trail within a riparian resource but that unless there was an existing trail there already, I think, and that trails would be acceptable in the riparian buffer area. And we did a lot of comment about that as well and a lot of people talking about the benefit of the trail in relationship to the riparian resource area. And so we came around to clarifying it and taking on and taking on a totally different approach, and…but, you know, kind of working with the Parks Department and getting their coordination and review involved in this, too. We also picked up on a few comments from the Health Department on other features or things to consider in the design of the trail, and that’s why you see sub 8 and sub 9 added. So that’s kind of the whole combination of where the language is at and what you see today. Jennifer Clary: Don. Don MacArthur: So I’m still back on road construction. Jennifer Clary: What? Don MacArthur: Sorry, I was reading through it and thinking in my mind are there other times when it would be punitive to require a variance of somebody, and I was thinking about the situation where there might be another parcel that would be accessed through your parcel and across a riparian area. I mean, there might be a parcel that the only access to it is through your parcel. I mean, maybe you subdivided years ago and there’s a riparian area that’s kind of the boundary line of two parcels; and you know, you’re subdividing and you’re proposing that there is an access to get to the next subdivision, you know, to the next parcel. Is that prohibited without a variance or is that…is that something that, you know, might be in the public’s best interest. You know, if we were talking about connectivity in certain areas we would be…we’d be thinking, you know, we might even require that right-of-way to create a loop or two accesses to a subdivision area or, you know, public safety might dictate that. Jennifer Clary: So if that was the only way to traverse the two different parcels, then wouldn’t that be considered not a variance not required, then. Janet. Don MacArthur: Well it says…it says except where…it says only to access the subdivision, not future subdivisions, or…you know, other parcels or anything like that. Just this subdivision. Jennifer Clary: Janet. Janet Rhoades: So first I was thinking that you meant you have to access through somebody else’s parcel, but you’re saying what if somebody else has to access through your parcel. Typically, in subdivision review, we’re really only looking at the subject property and not at the surrounding subject properties. I mean, I think that would be kind of an odd enough case, it would be worth asking for a variance just because it would need to be considered on a case-by-case basis, which is kind of the point of the variance. Don MacArthur: It’s totally not true that we don’t consider the future subdivision. I mean, when we…you may not see it as much in the City, but in the County we are consistently looking at the parcels that surround the one that’s being subdivided and saying do we need to create connectivity so we don’t end up with a mess. And we always say yes, and we collect right-of-way that joins the parcel in question with the future ones that are adjacent, so that we can have a hope of having a ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 40 of 68 good system of roads. So the point was just to come back to say that there might be other reasons that…that…that…you know, we’re exacting from that subdivider a piece of land to create right-of- way and then you’re going to make them pay for a variance, too? That doesn’t seem right. I mean, I guess if the City said, you’re going to make this connection possibility over there, then it shouldn’t be…they shouldn’t have to pay for it. I don’t know. I’m…it kind of feels like there could be a sentence saying something. A practical route to access a subdivision or to provide critical access to neighboring parcels. You know, I don’t know. Access…emergency access? Jennifer Clary: I’m totally in favor of that. Does anyone want to second that? Can I second that? Don MacArthur: I’ll make a motion, I guess. Let me make it a motion, first, that the .6 Road Construction is Prohibited, the first sentence be changed to read as follows: Road construction is prohibited within riparian resource area except in cases where there is no other practical route to access the subdivision or where it’s necessary to provide emergency access to neighboring parcels. Jennifer Clary: Does anyone want to second it? Tim Skufca: I’ll second that. Jennifer Clary: Seconded by Tim. Tim Skufca: Just the emergency part made it a whole different…if it was just to access a whole other subdivision or a parcel that someone would like to…but if it’s already developed on the other side and it’s an emergency thing, I agree. Don MacArthur: And I’m not sure…I mean, I put it in there to make it more restrictive but I’m not sure that there aren’t cases that…but at least it sort of suggests that there might be other reasons that you’d need to go across and then probably it’s a leap…an easier leap to get a variance. Jennifer Clary: Anyone other comments, any issues? John DiBari: I’ll make a comment. Jennifer Clary: Okay. John. John DiBari: I think…I mean, your idea certainly has merit, I’m not sure we can envis…you know, totally intuit when there might be the necessity for an easement to go across an existing parcel of land. And it seems reasonable that if there was such a need, that there would be a public hearing about it that would be fostered through the variance process, so…does that make sense? And I guess the second…no, it doesn’t make sense? Don MacArthur: Well the part that I’m…you know, I’m just imagining that we have a…that we have a subdivision, that we’re in here and we’re saying to them, gosh, we need to have a right-of-way that connects to the neighboring parcel over there for life safety reasons… John DiBari: At the time of subdivision? Don MacArthur: At the time of subdivision it needs to go through a riparian resource area. So, you know, I think we ought to be able to do that without having to make them pay for a variance. They’re probably not coming in recommending it, because they know that it’s on the margin of safety, but we might recommend it or City Council might recommend it. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 41 of 68 John DiBari: Yeah. What I was thinking of is if at some time after subdivision, it would be useful to have them come in for some kind of discretionary action to see whether or not it really was appropriate. Don MacArthur: But if it’s in subdivision regs, then it’ll only be at time of subdivision. I mean, if it’s afterwards, then whatever other process it goes through, it’ll go through. Jennifer Clary: Any other comments. Voice vote. All in favor say “aye.” [Five Board members answered “aye.”] Opposed? [Two Board members answered “nay.”] Jennifer Clary: Motion carries. Do you want to roll call vote? Do you want a roll call vote? Sharon Reed: I don’t know if it’s necessary, I… Jennifer Clary: Okay, it was one, two, three…5 to 2. Sharon Reed: Five to two? Jennifer Clary: Yes. Sharon Reed: Okay, thanks. Jennifer Clary: Okay, now going back to .7 Trail. Anyone have any comments? No, none, okay, we’re going to go to point… Don MacArthur: Wait, wait, I got to couple. I mean, this is one of those questions about…so, a trail…is a trail development…is it, you know, considered development, I’ve forgotten. Jennifer Clary: I think you can put a trail in the riparian area. Janet Rhoades: So… Don MacArthur: Not anymore, not through a subdivision, not without approval from the Parks Department. At least during sub…I guess the question that was really the question was if you could do it afterwards, then why should we, you know, make a big deal about it during subdivision. Jennifer Clary: Janet, sorry. Janet Rhoades: So, trails would be considered as development, which specifically includes paving, grading, that kind of thing…filling…I lost my train of thought—what was the second thing you said? Oh, why even have it in here? It would be something that you would want to have in the Riparian Management Plan, if you wanted to have a trail go through there. Otherwise, you wouldn’t be able to put one in because it wouldn’t comply with the Riparian Management Plan. Don MacArthur: So where does it say that it…I mean, maybe…should that be one of the design standards? Jennifer Clary: What would you propose? Don MacArthur: Well, I guess I’m just wondering if…that sounded good, what you said about the Riparian Management Plan, but I didn’t’ see it anywhere in the trail construction. Janet Rhoades: It’s… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 42 of 68 Jennifer Clary: It’s because it was struck out. Janet Rhoades: It doesn’t need to be under the trail section. If you…let me think…5 B, which we just looking at, no development of any kind may be approved within riparian resource area except as outlined in the Riparian Management Plan approved by City Council. So that’s where it would require the trails to be in the Riparian Management Plan. Is that all right? Jennifer Clary: It’s covered. Okay, so nobody’s got any other things on Going to Variance Procedure. Don MacArthur: One more, sorry. Jennifer Clary: Okay. Don MacArthur: But it’s a new piece, a buffer must be established between the trail and any adjacent water body. What’s a buffer? Janet Rhoades: That caused us some confusion, too, but note it doesn’t say riparian buffer, it’s just…it’s a buffer, meaning you can’t have a creek and a trail right along the bank, there has to be some space in between the trail and the creek so that the trail isn’t causing any erosion or funny stuff going on to the stream bank or whatever the water body is bank. Jennifer Clary: Okay. Don MacArthur: So, no trails down to the water? Janet Rhoades: Basically, yeah. There has to be a buffer. Don MacArthur: So what about areas where there are trails down to the water. You just let them be random trails down to the water, you can’t harden one in. Janet Rhoades: I’m sorry, what? Don MacArthur: This came up on the Equinox project that we did recently. That there a big feeling that we should not make a trail down to the water. And we argued, successfully, with the County Commissioners, that we should make a trail down to the water, because otherwise there were going to be 50 trails down to the water that would not allow our riparian vegetation that we replanted on the, you know, area that had been disturbed by dumping over the years, that we would not be able to maintain that vegetation. So it seems to me that there are conditions where you might want to allow a trail down to the water, acknowledging that in an urban situation people are going to there whether you have a trail or not. Jennifer Clary: Do you want to create a motion to include? Janet. Janet Rhoades: So I don’t think this would prohibit a trail going down to the water. It means if you have a trail along a creek or a lake edge or something, that the whole trail can’t be, you know, parallel and completely adjacent, that there has to be a buffer, because…I see what you’re saying. If you wanted to make that clear, you could say something like a trail in any adjacent water bodies where the trail parallels the shoreline or something like that. Or you could make a separate provision that as approved in the riparian management plan, a trail going down to the water may be acceptable or something along those lines. Jennifer Clary: Did you have to get a variance at the Equinox? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 43 of 68 Don MacArthur: We had to get a 303 Permit or something. Jennifer Clary: A 301 Permit? Don MacArthur: I guess I don’t know what a buffer is. I mean, if a buffer is two feet, it doesn’t matter. If a buffer is 50 feet, it does matter, if…I mean, I think it’s probably at the discretion of the…of OPG at the time. Janet Rhoades: Being that it’s in the Riparian Management Plan, so we can recommendations but it’s also at your discretion and City Council’s discretion as well. Don MacArthur: Why was this introduced? Laval Means: It came from a set of recommended design standards from the Health Department when they were commenting on trails. And many of those standards, we seem to feel were already covered between the standards we already have and what we say about trails in the non-motorized section, this was one of the pieces that seemed like it wasn’t. Don MacArthur: Okay. I’m going to leave it alone, unless somebody else wants to take it up. Jennifer Clary: Okay. Variance Procedure. Anything? Okay, seeing none, we’ll go to hillside. John DiBari: Well do you want to entertain a motion to approve as amended 3-130? Jennifer Clary: Do we need to do that? Laval Means: It didn’t seem like you were going, necessarily, each section by section, you were focusing on where revisions were where you had concerns with the revisions. And then with a general motion at the end to accept the proposed changes here as amended by your other emotions, would work. Just to save you on every motion along the way. Jennifer Clary: Okay. So, hillside? Any issues…anybody have any issues within, and I think this is really just getting this to be cohesive with Title 20? Laval Means: The revisions bring us into consistency with some of the changes that came out of Title 20, but we also had to make some slight corrections for the fact that in zoning you look at the hillside lot-by-lot. In here, we need to be considering the entire parcel, parent parcel that the subdivision is coming from. Jennifer Clary: Don. Don MacArthur: So when I read this section I got confused when I got to the density allowed by slope, and I couldn’t figure out how to calculate it. And then I went over and found in I guess, that really tells you how to calculate it. And I wondered about reorganizing that so that .5 A and B weren’t under building site but were under the calculation allowed because I think that’s really what they are? So I was proposing moving 5 A and B into .3 and however that makes sense to do that. Jennifer Clary: Just go ahead if I have my head down, just for the sake of speed. Janet Rhoades: I don’t want to talk out of turn. For whatever it’s worth, also, OPG is working on a new hillside calculation…hillside density calculation worksheet for Title 20, and I believe this will match. So, we’ll have a worksheet that will help folks calculate it, because it is kind of confusing. Jennifer Clary: So it would be like an Exhibit or… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 44 of 68 Janet Rhoades: Yeah, I don’t even know if it’s…I don’t think it’s a supplemental…well, I guess in here it could be a supplemental administrative material or it could just be something we have that we give people saying here, do this worksheet and that’s compliant with the regs. Jennifer Clary: John. John DiBari: I was just kind of curious what the rationale was for 1.43 and 2.0, if it because that’s just the way it is, then that’s fine, but I’m kind of curious if you had any…it’s the same section Laval Means: Can you repeat that, though? I’m missing your first reference. John DiBari: So it’s the same place Don was, right—B 3…no, is that... Laval Means: Point…okay. John DiBari: It’s just 3, density, allowed density by slope, there’s a 1.43 times the zoning district’s minimum parcel area and a 2.0 and I was just curious if there was a rationale for those. Does that make… Laval Means: Yeah. John DiBari: …make the stars or something. Laval Means: Well, they’re kind of a translation from calculating density based on acreage and the point here is that the steeper the slope in these categories, you may have to consider some reduction in density. And that’s how we had it with the table that you see crossed off over to the right up there. And this is a conversion from the .7 of acreage and the .5 to work on our square footage approach that we now use in the zoning and would want to be consistent with here. Don MacArthur: So just to be super clear, I think A and B, the motion…I guess there’s no motion, but I think A and B ought to go before that chart that’s under because I think that sort of describes the process and then you go from that process and it tells you how many lots you can calculate by that chart. Jennifer Clary: So I’m seeing a nod, so you can just move that, then? Is that okay? Laval Means: Yeah that’s fine. Jennifer Clary: Okay. Don MacArthur: So does the County allow 30 percent? Doesn’t some place allow 30 percent? Laval Means: As it is [inaudible, not using microphone] Don MacArthur: No, as a hillside standard. Laval Means: [inaudible, off microphone] Sorry, the County is still at 25 percent, also. We had a conversation with Zoning about changing it to a steeper slope and then stayed with 25. The change that you’ll notice with this is what we did with zoning is move at which something is considered a hillside from 10 percent to 15 percent, and that’s reflected in this as well. Jennifer Clary: Okay, any issues…I guess we’re…are we at then? Roads, Driveways and Parking? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 45 of 68 Jonathan Haber: I still want to go back. Jennifer Clary: You want to go back? Okay, Jon. Jonathan Haber: I always want to go back. I got a little bit confused by the existing slope terminology, which we’ve talked about before. I forgot how we fixed it, but I understand in I think what’s going on there, but then under .4 and it refers to slopes greater than 25 percent and it almost sounds to me like this is written to allow terracing to reduce the slopes to an appropriate level, which I wasn’t sure that was what you had in mind. So was that intended to say you’re dealing with existing slopes of 25 percent, or that you could modify them so they could meet those requirements. Janet Rhoades: This is really more about density in subdivision and less about the final grading of the site. More of that is done at building permit. This is more about the fact if you have steeper slopes, then you should be allowed less density. Jonathan Haber: And do you al… Janet Rhoades: But… Don MacArthur: This is a really good question, though, we’ve…we had seen a number of subdivisions on steep slopes that were, you know, less than 25 percent where the result of cutting the roads in to the slope was to create lots that were unbuildable by the regulation, here, that were…had just been granted entitlement. And I made a lot hoopla over that at the time and there’s…it does seem like the regulation ought to guarantee that the lot is, you know, and I think Laval was probably pointing at the section where it says your lot must have at least 2,000 square feet without a 25 percent slope on it. But we’ve seen ones where they dug into the hillside and had a 40 percent slope behind. And is that…is that a good idea? That doesn’t sound like a good idea. Or they’ve had a…you know, they’ve had a 25 percent approach up to their house, or down to their house to get access to the lot that is ten feet below the roadway. Jonathan Haber: That’s the kind of situation that I was picturing that this would seem to allow unless you get the word existing in there somehow, and those other parts as well. Don MacArthur: But I think the point…the point is, is that when you get about 15 percent, it actually starts to be pretty hard to design subdivisions that work readily without some major land tailoring. And maybe the regulations ought to look at that as well as to just give you a density. Jonathan Haber: As far as proposing a solution, you probably have a better idea, Don, than I do. Don MacArthur: I still think…I mean, I guess I’m back to Heidi’s comment that I think it was broken before, it’s still broken. And I’m not suggesting a fix. I… Jonathan Haber: Even though this is new language? Don MacArthur: Well parts of it are. The density by slope is kind of sort of new language. But I think…wasn’t that…wasn’t that in there sort of somewhere before, the density? It was under, though, right? Laval Means: Well density by itself was… Don MacArthur: I mean, zoning has had this before, yeah. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 46 of 68 Laval Means: Slope was...and…I’m just looking at… Don MacArthur: So you maybe didn’t have it in subdivision regs, but it still…you had to get your…your subdivision had to meet zoning, so it was still applicable. Laval Means: Right. Well, it just uses the term slope in the section that’s crossed out underneath it. That’s sub 2 lot slope and density. Jonathan Haber: So that part of it isn’t really being changed, then. Laval Means: No. Jonathan Haber: Okay. Jennifer Clary: Okay, so I guess we keep going, then. .6 Roads and Driveways and Parking. I have nothing in there. Do you have anything? Don MacArthur: I had one thing after Hillsides. I mean, we had talked and Kirk has recommended that we…or he’s going to include definitions of possibly agricultural land and I think we asked for a definition of biologically sensitive…what was the word you used, John? John DiBari: [inaudible, off microphone] Don MacArthur: Was it in here, I don’t remember it, but maybe it was in here. Yes, biologically- sensitive lands… Jennifer Clary: Biologically-sensitive lands. Don MacArthur: And agriculture riparian ridgeline and WUI. And I guess the question was whether these things…you know, in the spirit of what we did in Title 20 where we stuck a placeholder in there for these standards, should there be a…should there be a placeholder in subdivision regulations that talks about…you know we just got through with all the resource protection, riparian, hillside, should there be biologically-sensitive lands, you know, 3-150, agricultural land…agriculture, 3-160. I’m brainstorming, here. I’m trying to see what the thought is about the idea of putting in…what staff thinks about the idea of putting in a placeholder. Laval Means: There’s subdivision regs, especially Article 3, is structured so that we can easily add the subsections to the end of it, and especially the ones that we’re talking about are resource- based and with cluster conservation, we can add sections from there. We…without knowing the approach we want to take, whether it’s going to be one large subset with other categories underneath it, whether it is…what the regulations may possibly be, we would really not recommend going through a placeholder motion. We have all the flexibility to add those when we’re at that place of working on the regulations. Don MacArthur: That makes total sense from the purposes of OPG about the enforcement and, you know, using the regulation day-to-day, it leaves me a little unsatisfied in the…for the purposes of making some kind of possibly, you know, just as sort of a direction statement about where I think there might be important things that could be added to our regulation that would help the community be a better place through subdivision. So I guess I’m…I’m…I’ll make a motion that we…that we add placeholders for the things that are in the staff handout that we asked for last time and that they go in this section between the…between whatever we just did… Jennifer Clary: Hillside and Cluster. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 47 of 68 Don MacArthur: Between Hillside and Cluster, and that they, you know, basically they are biologically-sensitive lands, agricultural, agriculture, and what was the thing you asked for further discussion on, John, for the wild…wildland fire. John DiBari: [inaudible, off microphone] Don MacArthur: So…but I was suggestion the three things, biologically-sensitive lands, agriculture, and give me the language one more time… Jennifer Clary: Wildland Fire… John DiBari: [inaudible, off microphone] Don MacArthur: Yeah, I didn’t want to include ridgeline because it was too messy. I mean, they’re all messy, but that one is…where do you define…you messed it up for me by saying where is the ridgeline from and… Jennifer Clary: Okay, so those three? Tim Skufca: Wasn’t there a placeholder for non-motorized transportation, further development on that section? Don MacArthur: Let’s not…I’m on board with that, but I think that that is a different motion, this is about resource…lands that have critical resources for the community. Jennifer Clary: Okay, so those three? John DiBari: Second. Jennifer Clary: Seconded by John. Heidi? Heidi Kendall: This is a…this is adding definitions, placeholders for definitions? Don MacArthur: I think we already did that in that…in the definitions, there’s already sort of agreement that those are going to go in. Heidi Kendall: Okay, then… Don MacArthur: This is adding an actual…in the design standards section, just a…something that says agriculture… Jennifer Clary: 3-150 Agriculture. Don MacArthur: …and it says standards to be developed in the future. Jennifer Clary: 3-160…. Don MacArthur: …it just indicates that there is a, you know, through a public process or something. Maybe there’s a commentary above it that says as public process informs these things, these are areas that will be filled in. Heidi Kendall: And when would these be filled in? When would the…so they would just be blank…they would be subject headings that would be blank. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 48 of 68 Don MacArthur: Yes. Right. Just the way they are in Title 20. Jennifer Clary: Just as they are in Title 20. Heidi Kendall: So this is doing the same thing that…and staff’s recommendation is against doing that? Did I understand that? I just want to make sure I understand where you guys are in this. Laval Means: I just don’t see where the need is to add a placeholder for something that we don’t have the regulations for and even as you do it you’re wondering which one do we do, we’re not doing all of them, we may end up approaching two of these combined, I don’t know until we start working on things, until we have a project that is drafting regulations. We can easily add to the end of Article 3 whatever next section we’re working on or some new concept. Heidi Kendall: Thank you. Don MacArthur: Would it be helpful if I responded to that, or do you already know my response? Tim Skufca: Respond. Don MacArthur: My response to it is I totally understand, it makes complete sense, probably the regulations will get retailored but it’s just as easy to move this section as it is to add it. And I think the point, from my perspective is, Planning Board is sending a message to say these are three areas of resource protection that we think are not being handled adequately by our regulation right now, and they ought to be considered at the time of subdivision and we’re calling them out right now. It kind of seemed like we were just picking them out of the air right here, but I think it’s the result of many months of thinking about these things over the course of looking at plans, and they are important. Jennifer Clary: So we have that seconded, any other discussion on this motion. Seeing none, voice vote. All in favor say “aye.” [Board members answered “aye.”] Any opposed? Heidi Kendall: No. Jennifer Clary: One no. Okay, I keep going back to Roads, Driveways and Parking. Are we over that? Is there nothing there, are we…yes? Kelley Durbin: I just have a quick question, probably for Don. Does that mean that…we just put it in there, it means that at some point down the road we want to have a discussion and at that point we would probably hear quite a bit from developers, right? Don MacArthur: Oh, yeah, this… Kelley Durbin: And we’re just wanting to have that conversation? Don MacArthur: Yeah, absolutely. This…this… Kelley Durbin: Okay, great. Don MacArthur: This is going to be the result of a big, community-wide discussion on this issue. It’s just not appearing from somewhere; it’s just to say these are discussions that Planning Board has…is expecting to have and we’re hoping that…you know, hoping to have it sooner than later. Jennifer Clary: Are we moving to Cluster, now? Cluster and Conservation? Okay, any comments within that? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 49 of 68 Don MacArthur: Yes… Jonathan Haber: I’d be interested in hearing the staff background on why this is all new and in particular focusing on the question on how these encourage…how these regulations encourage Cluster and Conservation Development. Laval Means: I’m trying to bring up the presentation that I gave previously, you know, the overview…on Vista…hang on a minute. How do I go to slideshow. Jonathan Haber: Is it really all new or was it moved from somewhere else and that’s why it looks new. Laval Means: The language is from the…the fact that we revised it considerably in the City’s Zoning Ordinance. We had three or four kinds of types of riparian…or…or of clusters and we had the same thing happening in the subdivision regulations. And the approach with the zoning was to use really two types of cluster descriptions—one is cluster, and the other is conservation. Now, this goes handyman with the zoning. So if your question is how could they be encouraged… Jonathan Haber: Well the first statement is, it is tended to encourage these things and I think I had the same question about the zoning, but… Laval Means: Yeah, well it goes together with the zoning, and the tools in the zoning, so the point with the…with the cluster, for example, is the encouragement or an incentive to use it is you get some flexibility in your lot sizes. In…not in changing your density, but in able to have more variation in your minimum lot size, so that’s the incentive. If you’re proposing it as a subdivision, you need to be consistent with the zoning and you go through the subdivision process and follow through with the way to document the open space, all that kind of stuff. So that’s your encouragement on the cluster. With the conservation, there’s a kind of a two-fold encouragement and it’s in the zoning as well. And that has to do with, also, the flexibility of having varying lot sizes, there’s a smaller lot sizes and a small density bonus of about 20 percent. This tool would only be available, again, per zoning in certain zoning districts, not in all zoning districts. So the subdivision is this subdivision consistency is for, really, acting on, you know, the tool out of the zoning as well, they need to go handyman, for the most part. Jonathan Haber: So the variable lot size incentive, is that actually a pretty big deal. It doesn’t strike me as one, but… Laval Means: It’s…in the place where we use it with clustering, it went hand-in-hand…it actually implemented something that we had in the zoning previously, but because we took the approach one consistent, one table that describes your minimum lot sizes for conventional development…and in many of our large-lot zoning districts, we had referenced to, you had to have a minimum lot size, you had certain density per acre, but you could also have flexible lot sizes in the past zoning…well, with the new zoning, you can’t really have flexible lot sizes unless you’re doing a cluster development. So, it might be considered an incentive compared to the way that it was used before, which it was kind of a giveaway, you could have flexible lot sizes, but we weren’t getting, as a community, much in the way of open space in return. So, you know, a person in those large lot districts, they’ve got to straight-up conventional approach with a fixed minimum lot size or they have the possibility of considering clustering, getting the flexibility in their lot size, but the community gets more in open space back. So it was sort of a trade-off, but it was also being consistent with what the intent was of that old zone. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 50 of 68 Jonathan Haber: Okay. That makes sense. I’m not sure I’m convinced it’s much of an incentive, but…but on the general question, what I understand is that this is all not plow…none of this is plowing any new ground based on what we did on the zoning ordinance. Laval Means: Right. It’s very consistent with zoning. A couple of the places where we made some adjustments was with…in the zoning there was a lot of regulations on boundary markers. And when project staff looked at that, they thought that was rather overwhelming. I mean, you could potentially…I don’t know…see a boundary marker, a sign, about every 10 feet or something, it was just the…we did make some adjustments like that. But the big picture piece of this is consistent with the zoning approach. Jonathan Haber: Thanks. Jennifer Clary: Don. Don MacArthur: I’m sort of debating whether to say something. During zoning, I think I expressed the opinion that no one would ever use these things, anyway, and therefore it wasn’t worth spending a lot of time on them. And I still think that’s probably true. However, there are a couple things that I want to bring up. The first one is on page 3-48 and it is sub paragraph 5 which talks about permanent protection of open space. This…is this new language? This is like a critical kind of discussion, I think, this question about how to protect things that are in the public’s interest. And this is the first time that I can remember seeing it spelled out in a regulation or an ordinance. Laval Means: Are we…are you under…so you are .5 what? Don MacArthur: I’m on page 3-48… Laval Means: Right. Don MacArthur: .5 and then that whole paragraph. Laval Means: Okay. Don MacArthur: You know, it spells out that open space protected in perpetuity, dedication to the City, subject to the City’s acceptance, binding legal instrument, you know, and trust conservation easement, permanent restrictive covenant, you know, equivalent legal tool. And I guess my question is I don’t think I believe in those things. Some of them I do, but I don’t believe in a permanent restrictive covenant for conservation purposes in favor of a governmental entity. I’m not sure what that means, I think that means that you can’t change this without City Council approval. Is that true? Janet, could you answer that? Janet Rhoades: I can address that, I don’t know if I can answer that. But, if it matters to the discussion, that is verbatim out of Title 20, I just thought that I’d… Don MacArthur: That whole paragraph is verbatim out of Title 20? Janet Rhoades: Yeah, right, that whole .5 section. So I don’t know if that affects your discussion. I just thought I should throw that out there. Don MacArthur: It does. I mean it was…I still don’t think it’s sufficient to permanently protect open space, so… John DiBari: Parts of it. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 51 of 68 Don MacArthur: Parts of it are good, but parts of it seem weak to me, and this is a discussion that we may have, you know, over time as we look at things that are super critical for the…not sure who I’m talking to here. Jonathan Haber: Well, I have…so you’re looking at that language about covenants, and it appears intended to allow enforcement but doesn’t obligate the City to do it, in that case. Is what I would think. I’m assuming the language that say in favor or a governmental entity means that entity has the authority to enforce the covenants. But that’s a different thing than saying they have an obligation to do it, which is… Don MacArthur: Right. Jonathan Haber: …what permanent protection would mean. Don MacArthur: Which is kind of what I think should be in there. And the equivalent legal tool is...you know, deed restrictions or other things like that that end up being a legal battle. I think we could just…if it’s in the…it’s in the Title 20 as it is and it probably is a bigger discussion that needs to happen as we go forward and it doesn’t need to be right now. This is…anyone else want to talk about that, because I have one other point. Jennifer Clary: Okay, go ahead. Don MacArthur: Okay. On Perimeter Treatment Abutting Conventional Developments. I was trying to understand this section and it appears to me that there are…that this chart, if I’m reading the chart right, it says that you have to…like if you’re in an R…you abut an R5.4, then you need…and you have a lot size that’s less than 5,000 square feet, then you need a 50-foot buffer from the adjoining lots. Jennifer Clary: No way. Don MacArthur: I mean, it’s just impossible. Jennifer Clary: Yeah. Don MacArthur: A 5,000 square foot lot is, you know, 50 by 100, so there is no…there’s no place. And I think that that actually would be true for a number of these…I mean, any of those ones that’s less than 5,000 there is no…there’s no buildable lot with those buffers if they are adjoining anything. So it just physically doesn’t work, those buffers are impractical and I think that they may be impractical not just in that far right column, but in the second to the far right column, and maybe, even, the third to the far right. Jennifer Clary: The second… Don MacArthur: Certainly the second. Jennifer Clary: Yes. Don MacArthur: I mean, a 10,000 square foot lot on the R2-15 with a 300-foot buffer, no way. So, there’s a math question, I think. Am I reading this wrong? Jennifer Clary: Go ahead. Janet Rhoades: I can’t speak to that, either, but I just, again, want to let you know that’s also right out Title 20, so this… ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 52 of 68 Don MacArthur: I think I just gave up on it. I mean, I think I said no one’s ever using this, so it doesn’t matter, but… Jennifer Clary: It was probably 2 o’clock in the morning… Laval Means: You know I think that also the notion of the vegetative buffer, just to kind of…is like part of the conservation areas, it’s not necessarily within a lot that’s right up against it, but it’s actually a strip because it’s called a vegetative buffer. Don MacArthur: Yep. So that’s a good point and that…the problem that I have is that in the City, most of the time, if you’re actually using this, you would not be doing it as in a large parcel, you’d be doing it on a small parcel and you wouldn’t have room. I mean, there’s a few large parcels, but not many in the City. You know, it’s likely to be on 5 acres, or on 15 acres or something and there’s just not going to be room to do any of this stuff, it’s not really realistic for City Cluster Development. Laval Means: And I think some of the concern that was raised when we went through this with zoning is from citizens was creating some form of transition from the cluster that was going to be perceived as a…a harsh, you know, small lots pattern that was out of character with whatever is established around it. So this was a mechanism that was introduced to address that concern and accepted. They thought…they could see it as that condition maybe happening more around the fringe, where we still see some larger lot zoning districts. Now, I don’t know the size of those kind of acres, but that was where somebody could picture some sporadic already-established development pattern and then this open space, this conservation or cluster. Don MacArthur: So help me also understand the relation of this chapter to the PUD subdivision. Could you do the same thing with a PUD subdivision? Laval Means: Yeah. Don MacArthur: I’m just thinking about for my own…I wouldn’t even get into this, I would just go right to the PUD subdivision and make up what I wanted to have happen and take care of buffering the neighbors, rather than trying to fit into these standards, which can’t be met. Laval Means: Well, two things, I guess. You could do that, you may not be able to vary lot sizes unless you’re doing it in the…in the PUD zoning, I guess, you could do that as long as you’re not changing the density. The conservation tool, the one that allows the increased density, I don’t think you could do through the PUD…well, that’s not true, either. It’s not a rezoning, that was the other part I was going to make a point of. Don MacArthur: It’s not a rezoning, that’s the only thing is you don’t have to go through the PUD rezone. Laval Means: Right. Right. These would be options by right, if you can meet all of the conditions that are described. So the PUD is still a tool, but it’s a rezoning tool, but it would have to meet the zoning regs. Don MacArthur: So the cluster…I mean, the cluster you have to meet the cluster zoning regs, and if you do a PUD subdivision that changed the underlying…I mean you could do a PUD subdivision that didn’t change the underlying zoning requirements but changed aspects of subdivision, you know, shape of lots or things like that. And….yeah, I’ll leave it. I’m not going to mess around with this, it’s…no one is using it. Jennifer Clary: Should we vote on Article 3 in general, or just keep going? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 53 of 68 John DiBari: I actually had something. Jennifer Clary: You do? No, you don’t. Okay, go ahead. John DiBari: So one is just a wording thing, it’s B 2, on page 3-46. It says on the second line, such as continuous blocks of wildlife or wildlife habitat, just move blocks to in front of wildlife habitat. Does that make sense? I mean, it’s just one of those editing things, right? And then, more…excuse me…and then more substantively, perhaps, on page 4-…I’m sorry, 3-47, under D. Ownership and Management, number 2, you have item B in there, address weed management; and I would like to make a motion to add two additional items, there. The first one would be to address lighting to minimize adverse impacts to wildlife and the second one to address fencing to minimize adverse impacts to wildlife. It just means I have to consider it, right? Don MacArthur: I thought you were going to put…I’ll second that…I thought you were going to put defensible space in there, or fire…something about fire. John DiBari: Do you want me to? Don MacArthur: It belongs in there, if weed management is in there. Doesn’t it? I mean, it’s more important that people have a defensible space plan than that they manage their weeds. John DiBari: So we could add defensible space as identified in Exhibit 6. Jennifer Clary: Heidi. Heidi Kendall: Okay, the first one was about lighting? John DiBari: Yep. Heidi Kendall: And it was lighting that would not bother the wildlife? John DiBari: Yeah, minimize adverse affects to wildlife. Heidi Kendall: We have a City Ordinance that governs lighting. Where the heck is that, is it in the Zoning Ordinance? Laval Means: No. Heidi Kendall: Somewhere else. Laval Means: Yeah, I think it’s a separate… Heidi Kendall: Anyway, there is regulation in the City on what kind of lighting you can have, and it’s very detailed. I don’t think it says what kind of lighting does wildlife like and I don’t know what that would be. But I’m just questioning the need for that. John DiBari: Sure. Heidi Kendall: And humans object to bright lights, too, it turns out, you know. And then the fencing thing, what did we do about fencing before—the earlier discussion we had tonight. Laval Means: Didn’t go there. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 54 of 68 Jennifer Clary: That’s right, we did not. Heidi Kendall: I’m just questioning the need for adding these things. John DiBari: Sure. Well I can address a little bit of it. Lighting, as you probably know, has substantial impacts to a variety of wildlife species—bats, lots of insects, migratory water fowl and passerines, songbirds, essentially, and just like mountain lions, for instance, they don’t like lights. Jennifer Clary: Clearly shouldn’t come next to my house, and bats shouldn’t either. Heidi Kendall: Exactly. John DiBari: So there are a suite a species, and it’s well-documented about the adverse effects to wildlife associated with lighting. The fencing part we’ve hashed out a number of times, obviously there are adverse impacts associated with fencing, and if makes any difference after public is gone, but I talked to both Jackie and Vickie at the break and they were supportive of these ideas, too, and I would totally support Don’s addition of defensible space. Jennifer Clary: Okay, so you crated that motion, Don seconded it. Jon. Jonathan Haber: While I probably agree with all that, I don’t know that I’d agree with saddling the cluster section alone with that requirement and make it less likely that people will use it. Jennifer Clary: Any other comments. All in favor say “aye.” [Three Board members answered “aye.”] Any opposed? [Four Board members answered Jennifer Clary: Okay, how many noes did we just have? Ten? I, 2, 3, 4. Four no, three yes. Don MacArthur: I’m in agreement with what Jon said about it, it shouldn’t be there. I mean, I voted yes for it because I crafted it, it shouldn’t be there, it should be as part of the overall open space management. Jennifer Clary: Okay. Are we off Article 3, now. John DiBari: Can I ask a quick question about that? Jennifer Clary: Sure. John DiBari: Do we…would it help to separate those things or do we just want to deal with it when we come back to this thing at some undetermined, future time? Jennifer Clary: Future. So, Laval, do you want us to approve Article 3 in whole or just keep going, because I think we can just keep going. Laval Means: That’s fine, because you’re making your overall with amendments at some point. Jennifer Clary: Okay, so Article 4, anyone have any issues in Article 4? Jonathan Haber: Hearing none… Jennifer Clary: Do you have one? Jonathan Haber: I said, hearing none. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 55 of 68 Jennifer Clary: Yeah, am I hearing none? Don MacArthur: I mean, wasn’t most of Article 4, isn’t this a lot of the state stuff that we already approved. Jennifer Clary: Yeah, I think. Laval Means: There were a few clarifications from staff’s perspective. Most of it was already approved because those are state legislative changes. Jennifer Clary: Yeah. Laval Means: Oh, I’m sorry, there were a few pieces that were also incorporated because of staff clarifications, but most of was because of state legislative changes. Do you want me to go over what that was? Jennifer Clary: No. Okay, we’re going through Article 4 onto Article 5. Any issues on Article 5? Don MacArthur: So, I had a fairly long discussion with Laval earlier today about on page 5-3, there’s a primary review criteria report; and we had this discussion last time about whether there was some way to go back in history to try to make sure that not only had the person…you know, was it not…was there not riparian area on the land now, but there hadn’t been 15 minutes before they applied. I…it’s complicated, I’m not sure how we would create something to that effect, but there are…you know, we’ve seen subdivisions in the recent past where agricultural water user facilities have been abandoned by the developer and then the argument has been made that the land is no longer on farmland, since it’s not irrigated. And that behavior shouldn’t be allowed, you know, the behavior of stripping topsoil shouldn’t be allowed, the behavior of stripping riparian resource or carving into hillsides to make them feasible to be developed shouldn’t be allowed, I my opinion. So these are the kinds of questions about how would we write review criteria that would give the OPG an opportunity to review based on… John DiBari: History. Don MacArthur: Some amount of history. You know, I…Laval and I talked about it, about how would we do this, you know, it’s very complicated, each case is different, you know, there are people who you’d catch who would be, you know, just not know that this was something that they shouldn’t have done and then what do you do and what’s the remediation after you’ve caught somebody and how do you proceed. I’m not…I guess I’m just bringing it up because we left it as a loose end at the last meeting and I still think it’s important and I’m not sure how to proceed. I guess I’m not really suggesting any motions, I’m just bringing it up. Is there things that I forgot, Laval, that you should add to that about what the flaws and pitfalls are? Laval Means: No. I mean, I want to keep us on track with the revisions that we have here. I think that we concur with the frustration of the situations when somebody or something does come up that appears to have been an evasion, an attempt to do away with that resource before it comes up. My understanding is that is a pretty minor instance. I mean, not that it’s a minor situation, but it doesn’t occur all that often. Frustrating, very frustrating when it does. It mingles with a lot of other issues and it is certainly a scope beyond what we’re working on, so, you know, it might be something to consider or craft a specific approach that you’re considering and propose it to somebody who might see it come forward through Council or through our staff. But it needs, also, more description to be filled out by whoever interested in Planning Board. Don MacArthur: I mean, I guess, some of the places that made sense to me were like in the community impact report, which is a new section. You know, we talk about community impact as ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 56 of 68 though it’s…it doesn’t have anything to do with natural resources. And I guess these are the kinds of questions that the community impact about how you treat natural resources and how they have…are being impacted through the subdivision and preparation for subdivision. Laval Means: So just on that particular place, and why that’s back in here, that is the language straight from state law of what they consider to be in or addressed through community impact report. Don MacArthur: And we couldn’t expand that as to what we think impacts our community? Laval Means: I think that’s a different…that’s not what has traditionally been considered a community impact report. It’s been emphasized on local services in the past. John DiBari: Probably worth considering in a new…when we take up this again at some future time, to create a new section, there, that deals with community…with community impact to resource or impact to community resources. I mean, just create a whole new section that does the exact same thing that’s not encumbered by state law. Don MacArthur: Well and there’s 5 30 .1 on page 5-11 which talks about environmental assessment. You know, that does talk about open space. Is this also state law stuff? Who did that come from, that EA language? Janet Rhoades: The Environmental…I don’t know about the specific language, but the Environmental Assessment requirement is from state law, so I assume that this language is also from state law. Or if not verbatim, then, you know, a response. Laval Means: A summary of. Don MacArthur: I mean a narrative describing the environment is pretty broad. You know, we could ask for the history of the parcel or something. But I’m…it’s too late for me, I think. Jonathan Haber: Well if the MEPA procedures are the NEPA procedures, then they’d be looking at cumulative effects which would include past effects, so in theory….certainly, it’s within the scope, I don’t know whether it’s within conventional practice, but this would be a place where it would appropriate to encourage that, I would think. Don MacArthur: So how does that get spelled out: cumulative effects through past actions on the land? Jonathan Haber: Include, yeah, include the effect of past actions in the assessment. I mean, it should be done anyways, but it could be emphasized. Don MacArthur: And then what? If the…what if the cumulative effects have made it, you know, they’ve removed capacity to do agriculture on the parcel or they’ve removed the riparian resource, then, what’s the action? Jonathan Haber: Well Environmental Assessment doesn’t compel action; that would be a separate thing to talk about. This just talks about the effects. Janet Rhoades: Madame Chair. Jennifer Clary: Janet. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 57 of 68 Janet Rhoades: Just something to keep in mind. You know, there is this legal discussion buzzing about nexus and proportionality of the mitigation required for the impacts of the subdivision and not requiring mitigation for impacts that happen before the subdivision. This just seems to me like something that would need a broader policy discussion with…I don’t have all the answers about, you know, the case law and whatever, but it’s just something that I wanted to throw out to make sure that you are aware of that, you know, we might be on kind of tenuous legal ground, I’m not sure. John DiBari: Well, if nothing else, I mean, we’ve made the statement of concern a number of times and so it’s probably clearly on the record that this is something that we’d like to address and hopefully have the chance to do that. Jonathan Haber: I think in our role of Planning Board we could always ask the question of look to the assessment to see if it addresses this issue and ask about it. Don MacArthur: Okay. So I had a concrete motion to make on 5-10 on paragraph M at the bottom of the page. If the property contains prime farmland or prime farmland, if irrigated, I want to change that to say if the property contains agricultural land. It’s just kind of…I mean, that’s the definition that we’ve been using to describe agricultural activity and it maybe even should say agriculture or agricultural land. Because I think that would also suggest the use as well as the land description. Jennifer Clary: Do we have a second? John DiBari: Second. Jennifer Clary: Seconded by John. Further discussion? None, okay, voice vote. Don MacArthur: Could we hear what staff has to say before we vote, please? Jennifer Clary: Okay. Laval Means: Just a second… John DiBari: Maybe you could… Laval Means: Maybe I could get a clarification. I mean the agricultural land is the statement that is about soils. Don MacArthur: Yes. Laval Means: And this is about doing a soils analysis if certain soil conditions exist. So what’s the benefit of adding the agriculture piece? Don MacArthur: So the point is that sub…it might…if it’s being used for agriculture, it probably has good land and it might not be accurately mapped. If…there might be areas that are being used for agriculture that are not…would not fit agricultural land and then it would be worth knowing whether they actually had a resource that was good. So it needs a little wordsmithing to make the tenses right and all that, but… Jennifer Clary: Okay? Makes sense? Voice vote. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [Board members were silent.] Jennifer Clary: Motion carries. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 58 of 68 Don MacArthur: And related to that, on the bottom of page M, or the bottom of that section on the next page, 5-11, that…the final sentence says the required assessment need not cover floodways, lands with a slope of 15 percent or other areas that the Director of the Office of Planning and Grants determines to have limited or no prime farmland potential. So… Janet Rhoades: Where are you? John DiBari: It’s at the top of page 5-11. Don MacArthur: It’s at the top of page 5-11. I guess I’d like to take…to make the end of that sentence to have very limited or no agricultural potential. Jennifer Clary: Second. John DiBari: First, can…perhaps can you shed some light, a little bit more light on how that came about and how you envision the role of the Director of the Office of Planning and Grants making that determination, or I assume one of this designates? Don MacArthur: It’s just the zoning officer, right? John DiBari: Yeah. Laval Means: Yeah. Don MacArthur: It’s just to make this as streamlined as possible. John DiBari: The point, though, is that it’s discretionary… Laval Means: To…right…the statement there is acknowledging that there’s a few situations, a few land types where it’s clearly not going to have been used for farming with the soil conditions that are being described. But the addition of or other areas, is to just acknowledge that there might have been some other extenuating circumstance for why that isn’t the place that…where the analysis should apply. Could have been old structures were in that portion of the property for a really, really long time. I don’t know, but that was providing the discretion. Don MacArthur: I mean it could be White Pine Sash and it’s got some contamination or it’s…I actually don’t think the 15 percent or greater or floodway is helpful because both of those areas are not in…in…they might be used for agriculture but they’re not…they’re not in agricultural land, for sure. John DiBari: They may [inaudible, not using microphone] Don MacArthur: Right. So. I think I’m fine with it, other than changing the thing to agriculture rather than prime farmland potential. John DiBari: You mean at the end. Don MacArthur: Yeah, just the very end that I made a motion for. John DiBari: I’ll second it. Jennifer Clary: Seconded by John. Any discussion? All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [Board members were silent.] ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 59 of 68 Jennifer Clary: Motion carries. Sorry, I’m tired, I admit it. Jonathan Haber: I’m going backwards, again. Jennifer Clary: No, you’re not. Jonathan Haber: Do I need to make a motion to do that? Jennifer Clary: No, you can. Jonathan Haber: Back on 5-4, the Community Impact Report. I thought that might be an opportunity to address WUI and just clarify that…when it refers to evaluating the need for fire protection, that that address Wildland Urban Interface, if appropriate, and the risk created by the list of these things that John gave us on WUI. So it would have to address the need for fire based on the subdivision site, design, construction materials, and all that stuff. John DiBari: I don’t know what page you’re on. Jonathan Haber: I’m on page 5-4, it’s .7 there. Don MacArthur: Didn’t we just hear that that definition is straight out of MCA 76-3. Jonathan Haber: We did. And I’m just suggesting that we clarify fire protection includes wildland fire and the impact…the evaluation address the impact that’s caused by these factors of a subdivision that can contribute to wildland fire risk. It seemed like a sort of innocuous way of getting on the board. It’s an evaluation that they would need to do. Jennifer Clary: Make a motion. Jonathan Haber: So that was my motion, was to say…would be the impact on fire protection would…or the evaluation of the impact on fire protection would include consideration of wildland fire and the risk created by subdivision site, subdivision design and the other things on this list. Jennifer Clary: Anyone second that. John DiBari: Second. Jennifer Clary: Seconded by John. Further discussion? Voice vote. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [Board members were silent.] Jennifer Clary: Motion carries. So back to where we where. I think we’re at 5-303, Additional Requirements for Major Subdivisions. Anything beyond that point. Don MacArthur: So I had…I think staff brought up a question about reorganization on page 8-7. There was some misnumbering or something. Jennifer Clary: Where are you on? Don MacArthur: 8-7. Do we have anything more on…I just skipped ahead because I didn’t have anything… Jennifer Clary: You just went all the way five, six, seven, you went to eight. Okay, eight? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 60 of 68 Don MacArthur: Anybody had anything in there? Jennifer Clary: I had nothing. Don MacArthur: I don’t think there was hardly anything changed in there. I mean, I’m presuming that you guys can reorganize those, we don’t need to make a motion to deal with that renumbering of that stuff. Somebody said something about rearrangement of F to E or something. Jennifer Clary: Laval had some… Laval Means: About rearranging on 8-7, I’m sorry. Don MacArthur: I think there’s just some kind of… Laval Means: Oh, the actual…wait, the language about rearrangement or redesign of lots. I thought you meant the numbering of the sections and stuff. Jennifer Clary: Oh. Don MacArthur: Well the numbering of the section is messed up right there, so maybe. Laval Means: So that is what you mean? Don MacArthur: That is, yeah. Laval Means: Okay. First off, I know that when we talked about riparian quite a while ago and you established three definitions that you gave us some latitude to be able to update the other sections, you know, to update the…create the consistency, so we will need to do that in Article 5, under the submittal piece, to be clear. We don’t need to probably go over what that motion needs to be, the delineation on the plat, it needs to say for all those three things that we did in these…Article 3. So if you feel that falls under the purview of what your motion was, then we can move on. Okay. Article 8. What I had here is under 8-7, under 8-7, that sub D, we wanted to try to clarify the language but not change the intent of this statement that has to do with if you are reconfiguring lots through this type of exemption…Council…this is something that got worked on through several processes and it ended up in kind of a long…felt like hard to understand statements. So the consultant tried to boil it down to what was the key thing that we were trying to get at. And that’s what the new sentence is, here, about rearrangement or redesign of lots that results in elimination of existing access or reduction of access to less than five feet in width. That’s the point where when somebody is reconfiguring and we lose an access—say, it’s an interior lot—and they had three side-by-side lots and they reconfigured to go the other direction (or two, maybe, let’s say) and they configured to go the other direction and they have access from the alley, they can’t lose that connection to the alley, or that connection to the front street, they have to retain a 5-foot access. So this one sentence is doing that. But what we realized is by saying an elimination of an access, that might mean a concern over corner lots, which, in the situation I was describing, may have actually had three accesses. Well, in that case, it is okay to lose an access; they’ll still have either the alley or the side street or the side street and the main street. So we wanted to correct that. And then we also wanted to correct that this can’t just be an access through an easement, that wasn’t the intent of the original language, that’s why the original language says in a few places fee simple access, it was supposed to be an actual property line. So we’ve worked on that, too. So what you see up on the wall behind you is the proposal for the new statement. It says: For lots that have fee simple access of two or fewer public roads, then we go on to say rearrangement or redesign that results in elimination of an existing access or reduction of such access to less than 5 ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 61 of 68 feet in width. So those are the two key things we wanted to bring in here. Emphasize fee simple access and that this becomes important for two or fewer roads. So rather than this amendment, we’d like you to consider the proposal that I have up above. Jennifer Clary: Any comments? Heidi. Heidi Kendall: I would move that change. Kelley Durbin: Second. Jennifer Clary: Seconded by Kelley. Further discussion? Seeing none, All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [Board members were silent.] Jennifer Clary: Motion carries. Anybody have anything else on 8? Don MacArthur: So there is a…I think F ought to indented underneath there and it ought to be E, so just a typo. John DiBari: Can I ask a question about that? Does this require a public hearing or is this administrative public hearing, this stuff on the wall? Laval Means: Well… Don MacArthur: If you look at the beginning of it, it says, use of exemptions under the following circumstance requires review and hearing before the City Council. John DiBari: Just double-checking. Jennifer Clary: Anything else. Anyone? Anyone have anything in 9. Seeing none, can we have our main motion? Heidi. Heidi Kendall: I’ll make the motion. I move that the proposed amendments to Missoula City Subdivision Regulations, Articles 1 through 9, as shown in Attachment B and referred to as the Planning Board Draft, as amended on April 6th and tonight, be recommended to the City Council for approval. Kelley Durbin: Second. Jennifer Clary: Seconded by Kelley. Further discussion? John. John DiBari: I just wanted to say I think we missed two opportunities and partly that’s my fault for not making a more coherent argument about the fences, first off. You know, we’ve been dealing with those on a case-by-case basis and I was trying to create some clarity so that there was a…so that we didn’t have to do that on a case-by-case and I think if we would have pushed on that for a few more minutes we might have come up with a word or two that got at that. And I think, secondly, although I understand what Jon said about putting an undue burden on conservation and cluster subdivisions, the whole point of it was, or at least for half of that is to provide conservation benefit and so the idea of dealing with lighting and fencing and perhaps wildland fire issues there were to further advance that idea of conservation. So my two caveats for our work for this evening, otherwise I think it went great. Jennifer Clary: Thank you. Don. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 62 of 68 Don MacArthur: So back on the road question, I was just looking through the notes and things that were sent to us and the MOR sent us a letter saying as currently written, the road construction guidelines within riparian areas or buffers would allow access to a subdivision but a variance would be required for any roads within the subdivision. So, there could be a piece of land, for example, that has, you know, doesn’t need a…doesn’t need it to cross a riparian area to get access to the parcel but needed, you know, only a tiny fraction of the parcel is on one side of the riparian area. Are we saying no sub…do you have to get a variance for that? Is there a hardship? I mean, these are…it’s a… I think it’s a good point and in point of practice I bet that that has been…the de facto answer has been yes, you can cross that. And this is a new policy that says no, you can’t cross that without a variance. Jennifer Clary: Janet. Janet Rhoades: In past practice, we’ve always interpreted…well, maybe not always, as long as I’ve been here we’ve interpreted is if had an except or an unless or something, that was always a variance, no matter what. So this actually clarifies that they don’t even need to ask for a variance if it’s the only practical route to access the subdivision. So this is actually less restrictive. There’s times they don’t have to request a variance now whereas they always did before. Don MacArthur: So accessing the subdivision means any lot anywhere on the parcel? Janet Rhoades: Well, see, now, that’s a great can of worms that you just opened, and certainly an issue that we thought about. But I guess the only thing we can say, you know, that exact judgment call of well, how much of the parcel do they need to access is one of the reasons why we always took it to Council for Council to look at and decide and I guess now it’s going to be more of an administrative judgment call of whether or not a variance is required, of whether or not it needs to go to Council for the judgment call. So we’re going to see what we can do, but this is step more towards what developers were looking for that at least in some cases they won’t have to ask for the variance. Jennifer Clary: Laval. Laval Means: I would just add, also, that this is the approach that we had already in the County. So it had its…it had its debate and discussion and settled on a certain approach, there. And I can’t say how it’s working, but that’s the language that they are using in the County. Jennifer Clary: Okay. Any more discussion. Tim? Tim Skufca: I don’t know if I…if I didn’t see it in all this, but where was the response to the issue that Lee Clemmensen brought up on the subdivision and the stacking and on how that pans out. What…is that still a viable option for developers—to just break it up and avoid all… Laval Means: The comments that were provided…many of the comments that were provided to you at the last meeting by Lee were also provided to us when we were drafting the Advisory Group Draft, she had reviewed them then, and made those same comments. And the matrix that was distributed at the last meeting had some written response to her…the comment about stacking and the comment about phasing versus stacking. That’s just some background…and I can’t find my matrix right now, but that’s where that is. As to the specific question, could we continue, could it happen, still, is that what you’re asking? Tim Skufca: Right. Laval Means: The regulation that’s in…and it’s actually in Article 8 is the straight-up regulation from state law that limits the exemption to this rearrangement of five lots or fewer. The stacking comes ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 63 of 68 into play, or is referred to as the procedure or the ability to file those five lots maybe consecutively, maybe all together with the County Clerk’s Office, and it had been their accepted practice to be able to have them come in together. So it’s really kind of an issue of what’s acceptable through the County and the filing of it, than it is with what we have as state law. Because we’re reflecting what state law says we have to allow as an exemption. Now, are there some other things that could be done to limit how many filings you could do? That’s a possibility. I think Lee made a suggestion, I think maybe others may, it really depends on, you know, the will of where every…anybody wants to go with it, we just need to hear what that direction would be, get some sense…this was a discussion that occurred at PAZ probably two years ago or something, right after the…that particular development was proposed. And one of the purposes of that discussion was to give us some direction, how would you like to address things? Is there something additional that we could place in as a limitation. Given what… Don MacArthur: Could…could…could… Laval Means: …the County Clerk is already allowing, you know, as a filing goes, and we didn’t get anything, so we would just need to hear what would be the will a Board, a City Council, a PAZ, an anybody. Well, you’ve heard from some folk, what would you like to do? Don MacArthur: So if I could interrupt for a second about that, because I think there was some confusion about, you know, what this stacking is. And my understanding of…I kind of got this idea that there was this…that stacking was somebody subdivides a parcel into five parcels, and then subdivides one of those parcels into five more parcels, and that is…there’s no such thing as doing that, there’s no free ride that way. That’s a subsequent minor, you know, has all the standards of a major subdivision and you…there’s no…there’s no loopholes around there. The ones that people were referring to were things that already a bunch of preexisting lots. I mean, if you go up to the church up the Rattlesnake, there were I don’t know how many lots that underlay that parcel to begin in. Tim Skufca: Ahh… Don MacArthur: They were already defined. So they could take each one of those lots and do a minor subdivision on it, totally legally. Laval Means: Well, it wouldn’t even…I’m sorry, but it wouldn’t even be a minor subdivision, it’s already split. Don MacArthur: Even if the lots are already there, then they don’t have to subdivide it, they just do boundary line relocation. Tim Skufca: Oh. Don MacArthur: So there’s no…I mean, there’s no nefarious activity, it’s just that those lots exist and somebody thought that was on parcel. Well, it wasn’t one parcel, it was many parcels. Tim Skufca: Oh. Laval Means: The reference that this pertains to is under the division and aggregation exemption for plat filing, and it’s 8-030.2, it’s on page 2 of Article 8, and it says, inside platted subdivisions. The relocation of common boundaries of five or fewer lots must be surveyed and an amended plat filed but is exempt from subdivision review. It’s about relocation of common boundaries, not creating new boundaries. And that’s the point I think Don is trying to make. This is the kind of exemption we’re talking about. The stacking came into play with can you do a relocation of five and then another five or whatever. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 64 of 68 Don MacArthur: Absolutely. I think you can. I mean, the lots existed. So they…somebody could have already built that number of houses on that parcel. Laval Means: Right. You’re still not creating new lots. Don MacArthur: Yep Laval Means: You’re still in the realm of reconfiguring. Tim Skufca: No, but if you had 20 acres and you decided to just do five of it, five lots now, you don’t have to go through any of the process, and then… Laval Means: No. Tim Skufca: …then you can do another five lots? Don MacArthur: No, no. Laval Means: That’s a minor subdivision. Don MacArthur: You go through a minor subdivision and then if you do…if you try to take one of those fives and make it into five ones, that has…that’s a major subdivision, right? I mean, you have to do a subsequent minor or something and it’s got more standards. Janet Rhoades: I actually think they changed state law fairly recently, we don’t do subsequent minors anymore. Laval Means: That’s another minor subdivisions. Don MacArthur: That’s still two subdivisions, I mean, you have to go through the whole public process, every time you subdivide, create new lots. If there’s already existing lots, then you could move them around. Tim Skufca: Okay. John DiBari: So you could create a minor subdivision of five lots, and then come back and rearrange the parcel sizes for all five of those lots, and that doesn’t count…that’s an exemption, you don’t have to go through review. Laval Means: It’s an exemption and it’s not a...like a public hearing, you still have to be approved through whatever that process is, the City Attorney’s office, etcetera. John DiBari: So really the question is at what point does the rearrangement constitute something that’s so different that it may warrant some kind of public review process. Laval Means: Well and the state has really specific…the state has really specific standards on what is a type of exemption. Don MacArthur: And I start to see the stacking idea, that if there’s 15…you know, if there were 15 lots up there at the Rattlesnake parcel and the state says well, you can do up to five, you know, it starts to get marginal to do three fives on one parcel. You know, that starts to feel a little bit like…particularly…I mean, if you could do each five individual without, you know, then taking one of the ones you created from the previous one and doing it with the next one. I mean, you could really ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 65 of 68 do a major transformation if you did it. I’m still not sure I’d be against it, ultimately, because there’s still the same number of building rights existed before you did as after. John DiBari: Yeah. What might come into play is some of the resource protection issues that weren’t triggered through the original subdivision…I mean, we’d have to play out what the ramifications were, but it’s probably worth considering at some point. Jennifer Clary: Okay. Do we have any thing or can we… Don MacArthur: Let’s vote. Jennifer Clary: We’re going to do a roll call vote. I don’t know why I did that, but I did. The vote was as follows: Kelley Durbin Yes John DiBari Yes Jonathan Haber Yes Don MacArthur Yes Heidi Kendall Yes Tim Skufca Yes Jennifer Clary Yes The motion carried with 7 votes of yes and 0 votes of no. Sharon Reed: It’s unanimous. Jennifer Clary: Motion…well, the City Subdivision Regulations passes, then, as amended. So what’s the next process for this thing? Laval Means: We have a…we’ll go to City Council, we’ll ask to set a hearing date probably sometime in June, I think, is about where I was seeing it. We’ll be holding a first hearing for it. Jennifer Clary: Okay, thank you. Laval Means: Thank you very much. Jennifer Clary: Thanks. VII. COMMUNICATIONS AND SPECIAL PRESENTATIONS Jennifer Clary: Do we have any communications and special presentations? No. VIII. COMMITTEE REPORTS Jennifer Clary: Any committee reports? No? John DiBari: How about TPCC? Jennifer Clary: No. Don MacArthur: Nope. John DiBari: [inaudible, not using microphone] Don MacArthur: Maybe, but I wasn’t there. John DiBari: To fill in the gap, maybe, I didn’t go, but I think TPCC did meet yesterday and one of the things on the agenda was the EA associated with moving those trucks through Missoula. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 66 of 68 Jennifer Clary: Oh, yeah. Sharon Reed: They met today. John DiBari: They met today, sorry. So, it would be good to get an update about that at some point. Don MacArthur: I’ll find out and update the Board. IX. OLD BUSINESS Jennifer Clary: Old business? X. NEW BUSINESS AND REFERRALS Jennifer Clary: New business and referrals? John DiBari: All right. Item for new business. Jennifer Clary: Okay. John DiBari: You know, I think it was pretty clear through the last two hearings on the Subdivision Regulations that the…at least many members of the Planning Board are interested in knowing a little bit more about what might be coming down the pike with regard to taking a more, I guess, broader crack at reviewing the subdivision regulations so I guess I would like to make a motion that the Planning Board draft a letter to the Mayor or/and the City Council requesting some information from them about how they envision looking at, either an issue-specific or a comprehensive review of the City Subdivision Regulations. Jennifer Clary: Do we have a second on that motion? Tim Skufca: I’ll second it. Jennifer Clary: Seconded by Tim. Discussion? Don MacArthur: I’m not anxious to try writing any more letters myself, I’m happy to have other people attempt that. So I guess from my standpoint, I think it’s a good idea, but I think it’s got to be pretty generic if we’re going to get the Board sort of to acquiesce as a whole. Or we should write, you know, more individual on the Board letters. Jennifer Clary: I think it should be one letter. John, can you do that? Heidi, you have a comment? Heidi Kendall: You’re making a motion to vote on this and I’m going to…right? John DiBari: Yeah [inaudible, not using microphone] Heidi Kendall: I’m going to vote against it. I don’t have anything against City Council and/or the Mayor about things, but I think that the formality of a letter makes it something that becomes kind of a defensive action and people kind of hunker down into their positions and stuff. And I would rather do it informally, I’d rather talk informally. I think you’d get more done that way. Jennifer Clary: Don. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 67 of 68 Don MacArthur: If I could respond. The downside to that is if just one Planning Board goes and talks informally there…it’s not very strong. And I think the question is, you know, maybe we ought see if we could have a…you know, some kind of meeting that we actually had the Planning Board and PAZ together for a…for a half hour. I mean, I’m thinking if we really want to open up dialogue, we ought to open up dialogue between the two bodies, rather than between an individual or even a…you know, between a single representative of our body to the PAZ. Heidi Kendall: I think if the letter says, Dear City Council and Mayor, we’d like to meet with you to talk about these things, without saying any substance at all, I don’t have any problem with that. If it says we want to meeting, we are asking you officially for a meeting, then you have…I mean, I don’t know when you schedule something like that. But it’s just, you know, really hard to schedule a meeting with City Council. You have to notify the press, you know, all that stuff. So it’s difficult. John DiBari: So just to poke at this a little bit more. I mean, I think the idea is to genuinely ask what their current plans are for revisiting this. I heard that there is some interest on the part of some City Councilors for taking up some specific issues and it would be trying to get some sense of timeline for when those issues may be coming before us, or if there was an appetite to go back and look at the Subdivision Regulations de novo like we did with the…you know, the…Title 20. It’s really just a…it doesn’t sound like a good word, but an inquisition. Laval Means: You just did two major overviews of the City Subdivision Regulations and each time you hear from me, I say, this is general, it has to stay general. And what you’re talking about is wanting to focus on some specific issues. So I would stay away from any suggestion that there is another big overhaul coming. You want to get into the issues, the best forum for doing that is to take on, you know, one thing at a time. An issue or a group of issues, I guess. Well, I don’t know about…but that’s my advice to you. It’s…do you really want another overhaul coming? The consultant just looked at the subregs and recognized that it had just been done. We had just done one, like, four years ago. Jennifer Clary: So maybe it should just be specific. Laval Means: It’s the only way to get into the things you want to get into. Jennifer Clary: Although large. We had three or four. Don MacArthur: Well I think that the good stuff to communicate is the…what do…does the Planning Board have any issues that we do want to get into. I mean, this is where is gets hard to what we as a body want to get into. And it, you know, that’s why every time we sort of go to this thing it either…either people just, you know, it just gets to a point where nothing happens, which is kind of what happened to me as…I think there was a letter that could have been written about Seeley, but I just…I got tired and just didn’t do it. And I think that…there’s a big danger in that if we try to really put a concerted effort that puts out a position. And if we just have random dialogue, then, we kind of do that already. I mean, we kind of do that through our minutes to them. So how do we…how can we be effective in changing the kinds of policies that are being brought forward, I think is what you want to do. And I totally support that and I think that is an appropriate role for us and I’m just not sure how we do it. John DiBari: Do you think this may be more appropriate to do during a meeting with PAZ? So one person would be communicating to all of PAZ, at least all at the same time, and we could request…or I guess given that it’s me, I could request from them some kind of official response to Planning Board. I don’t know whatever…some kind of response about, you know, what they’re thinking or if any councilors or…have a particular set of issues, too, that we would know that that’s getting factored into the work plan for OPG or we’d know something. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 20, 2010 Page 68 of 68 Jennifer Clary: So if you went to PAZ and you said we have specific WUI issues, and riparian and we’d like to know what your thoughts are about addressing those and what’s a timeline when you can fit that in and then just very informal…he goes to PAZ, talks about that, just to kind of get a sense of where they are with it, rather than writing a letter or, you know, just to get a sense and then come back and we’ll talk about it again, you know, at a meeting. Sure. Heidi Kendall: You know what I would do? I would just call up Dave Strohmaier, who’s interested in wildland fire issues and say, just talk to him about that. And then I’d call Marilyn Marler and talk to her about riparian stuff. Just because if you get somebody, one person on City Council, interested in your issue, especially if they’re chairman of a committee, then you can get some action. And it’s informal and they are interested that way, and they’re not feeling like they’re being pressured by somebody. John DiBari: Yeah and I think the point, the salient point that you made is, you know, I could do that with my own City Council person, but the question is do we want to do that as a Board? I mean, do we want to speak as one voice saying we think these are important issues and we’re wondering if you’re going to take them up or we could…I’m not sure what the words are but…so, you’re right, I mean, I could Dave Strohmaier, but the question is do we want to say the Planning Board, Dave, is interested in wildland fire issues, what do you think? Heidi Kendall: Well what about the merits of the arguments? Why not just talk about the merits of the arguments rather than saying that Planning Board is interested in this. I mean, what does that have to do with anything, really. I mean, isn’t it the merits of the argument that… Jennifer Clary: He’s just trying to get a backing to say, Planning Board has these issues, these are things that we see, we’d like to address them more holistically to repair things. Anybody have any other… John DiBari: Should I withdraw the motion? Jennifer Clary: Probably. John DiBari: Okay, I’ll withdraw the motion and maybe we can revisit this and have a little discussion at PAZ when I do the update. Jennifer Clary: Okay. XI. COMMENTS FROM BOARD MEMBERS Jennifer Clary: Comments from board members? XII. ADJOURNMENT Jennifer Clary: Seeing none, we are adjourned. The meeting adjourned at 11:24 p.m. Respectfully submitted, Recording Secretary: Transcribed by: Sharon E. Reed Deni Forestek Administrative Secretary Administrative Aide Missoula Office of Planning and Grants Missoula Office of Planning and Grants (To listen to this meeting in its entirety, click on this link)