Document Missoula_doc_f1adc294f7

Missoula Consolidated Planning Board Minutes April 6, 2010 Page 1 of 54 TABLE OF CONTENTS I. CALL TO ORDER 2 II. ROLL 2 III. APPROVAL OF 2 IV. PUBLIC COMMENT 3 V. STAFF ANNOUNCEMENTS 3 VI. PUBLIC 3 A. Planning Board Draft City Subdivision Regulation 3 VII. COMMUNICATIONS AND SPECIAL PRESENTATIONS 53 VIII. COMMITTEE 53 IX. OLD 53 X. NEW BUSINESS AND REFERRALS 54 XI. COMMENTS FROM BOARD 54 XII. 54 ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 2 of 54 MISSOULA CONSOLIDATED PLANNING BOARD MINUTES April 6, 2010 – 7:00 p.m. Missoula City Council Chambers, 140 West Pine MEMBERS PRESENT Jennifer Clary, Chair John DiBari Kelley Durbin Jonathan Haber Tim Ibey Don MacArthur Jerry Petasek ALTERNATES PRESENT Carol Evans Tim Skufca MEMBERS ABSENT Heidi Kendall Jerry O’Connell STAFF PRESENT Jen Gress Laval Means Janet Rhoades Sharon E. Reed OTHERS PRESENT Lee Clemmensen Jackie Corday Taylor Greenup Lyn Hellegaard John Hendrickson Ruth Link Renee Mitchell Peter Neilson Brianna Randall John 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 6, 2010, Missoula Consolidated Planning Board meeting to order. [7:01 p.m.] II. ROLL CALL Jennifer Clary: May we have a roll call, please. Roll call indicated that there were 7 members and 2 alternates present. Sharon Reed: You are missing two members, one is a County member and one is a City member; so can the County alternate and the City alternate fill in? Jennifer Clary: Yes. Thank you. III. APPROVAL OF MINUTES Jennifer Clary: Do we have a motion to approve the minutes of March 23, 2010? Anyone? Kelley Durbin: So moved. Jennifer Clary: Seconded? Tim Ibey: Second. Jennifer Clary: Second by Tim. Any comments on those minutes? Seeing none, we’ll have a voice vote. All in favor say “aye.” [All Board members answered “aye.”] All opposed? [All Board members were silent.] Jennifer Clary: Motion carries. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 3 of 54 IV. PUBLIC COMMENT Jennifer Clary: And now is the time where we ask for public comment on anything that’s not on the agenda this evening, which is the Planning Board Draft City Subdivision Regulation Revisions. So if anyone has anything to talk about other than that, now’s the time. V. STAFF ANNOUNCEMENTS Jennifer Clary: Seeing none, we’ll move on to staff announcements, which, I believe, we have a memo saying that there are no new public hearing items for your regularly scheduled, April 20, 2010 meeting. So we have nothing for that next meeting and then there are no governing body actions to report to us. Laval? Laval Means: I don’t know if Mary updated you all earlier about the Gravel and WUI Amendment to Growth Policy, have you heard about that? Jennifer Clary: I don’t think so. Laval Means: I can’t remember…it’s been a few months… Jennifer Clary: She hasn’t been here for a while. Laval Means: …since you had it, and it…they are both approved through the City and the County now, so, the County approved amendments to the Growth Policy based on gravel…addressing the Gravel and WUI requirements. And the City did it as well. Jennifer Clary: Okay. Thank you. 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. Jennifer Clary: So now we’ll move to our public hearing this evening, which is the subdivision regulation revision…the City Subdivision Regulation Revisions. And what we’ll do is ask for Laval to give a presentation on kind of an update of where we’re at with that, any public comment that’s been received, she’ll kind of update us on that. And then we’ll close…well, we’ll then, basically just ask for any public comment. And because there aren’t really a lot of people here this evening, I’ll just say, you know, anyone that wants to come up, so not proponent or opponent; and then I’ll give you a chance to discuss your issues and concerns, and then we’ll close that public portion, and then discuss that as a Planning Board, and hopefully rule on that this evening. So, we’ll hand this over to Laval. Laval Means: Thank you. Laval Means with the Office of Planning and Grants and I’m here tonight to ask you to consider making a recommendation to the City Council for the proposed revisions to the City Subdivision Regulations, Articles 1 through 9. I wanted to just kind of orient…orientate you to the material you should have. Back in March, we sent you –I think it was March 10th–we sent a Planning Board Draft of the City Subdivision Regulations, and it would have been dated, yeah, 3-10 of 2010, so I hope you’re all using that document. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 4 of 54 There was a memo describing some of the key revisions in there, attached to the document. Then, at the end of last week we sent you a Staff Report that had some background…some additional background attached to it, a list of the agencies, and kind of groupings of interested citizens that have been involved and engaged in the project. The past memos for agency review, meeting notes from the last Advisory Group, and then some background information which were the exhibits that we currently have already in our Subdivision Regs, but omitted to send that forward to you because they are not being changed, they are not regulatory, but we thought that they would at least be helpful for you in your review and understanding of the document. We noticed just today–or yesterday–that there were some pages omitted in that packet that we sent to you, so we have an “oops” document that we’re sending…that we’ve sent around. It’s in the stuff at your desk right now. It just replaces some of the attachments and they’re…that agency memo kind of stuff. And it’s not really new information; you know, I think the planning office is pretty famous for repeating statements over and over again; so it’s pretty much the same kind of thing as what you saw in your Planning Board memo, but it pertains to what we distributed to the adv…to the agencies, etcetera. So my apologies for that. You also have a couple comments that were just sent to our office and we’ve distributed to you, here, and that is from the Missoula Organization of Realtors, as well as some comments from the City Fire Department. And then, recently, you also have with you comments from Lee Clemmensen that are distributed. So that should bring you all up to date on the material. Most of that material is also on the website, and for this project we continue to use the zoning…www.zoningmissoula.com, so if you want to look back even further than Planning Board into, you know, some of the previous drafts, etcetera, it’s all out there. So the first thing…well, here’s what we want to cover tonight…that is, the…an overview, just to let me touch on the highlights of our process and then go over very briefly focus of the revisions that you have before you tonight. First off, with regards to the overview this is…a…this would, upon adoption, be the completion of the contract that we have with Duncan and Associates. It is the final phase of updating our City Development Regulations. But I’m sure you’ve all noticed that it’s not anywhere near as in depth a rewrite or extensive a set of revisions than what you were tasked with looking at in the zoning revisions, the zoning update. They are not reorganized, the document…the scope is just not as in- depth. We’ve had to keep it to a pretty restricted scope of revisions for this project. It is, as I said, not that…it’s not reorganized, and it really is…we’re attempting, again, not to introduce new policy in this. When you work on a general revision like this, introducing anything that becomes too polarizing or too much of a policy piece of business really distracts from the need to take on the general task here; and we feel that we can come back to a specific wish list, or issues, or concerns people have as separate projects later on, but right now we need to finish this task that we have at hand with the contract from Duncan Associates. And on that same note, I might mention also, that the document looks different than what you had in the zoning rewrite. And that means that the base that you’re using in this Planning Board draft is the current language. In any of the revisions you can see a lot clearer, because they’re track changes, they’re underlined, they’re strike-through, there’s a few editorial notes here and there. If something is moved from one place to another, that isn’t necessarily tracked, but because it’s not a new thing. But for the most part, we’ve got track changes going on here and that should really assist in getting through the project. This project, the revisions are limited and proposed to address little…some things in just about all the Articles 1 through 9. And as I’ve said, we’d like to work towards working with you on the ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 5 of 54 recommendation for approval of the proposed amendments to Missoula City Sub Regs, Articles 1 through 9. So as process goes, shortly after, pretty much immediately after adoption of the City Zoning Title 20, the consultant shifted gears into working on the Subdivision Regulation revisions. He had done some really early scoping back with listening sessions, etcetera, to hear what people thought about the Sub Regs as well as taking a technical look at it. That included with the need to address it, simply because we had changed Title 20, was really, you know, part of the impetus for looking at this Subdivision Regulations project. So in December, he had provided us with an Advisory Group Draft and there was notification that was sent out to, besides the Advisory Group, to all of our email contact list letting them know it was available and on the internet for them to review as well and for us to receive comment. We forwarded all that comment to the consultant, again, for his consideration, and we met twice with the Advisory Group to hear their comment and concerns and forwarded all that to our consultant. He then, in March, we considering those comments and providing or revising the draft to provide us with the Planning Board draft that you have here today. We again, distributed that draft, notified our email contacts that it was available, and had an update meeting with the Advisory Group to hear what concerns they had; and you have the meeting notes from those in your packet. And then, we provided the legal advertisement in the Missoulian in…for two Sundays previous to this meeting. So we’re here today with the Staff Report before you and the Planning Board draft and having our hearing and looking forward to some resolution. Jennifer Clary: Thank you. Laval Means: So what I have is… Jennifer Clary: You got more, okay. Laval Means: Yeah, I was going to go through the focus of the revisions. There’s…and I’ve noted this in our memo as well, there is five main elements to the revisions that are before you. The first one is to remain current with the state legislative directives. Second is because we are aligning with Title 20 City Zoning Ordinance. Third is to continue to reflect as best as possible recent revisions that have occurred in the County Subdivision Regulations; it’s always desirable to have the County and the City regs as similar as possible or at least in structure and format and then go from there, as well as their application. And then, we are finally coming around to incorporating a resolution on the parkland issues that you all saw quite a while ago, it’s Resolution No. 7402, became effective January of 2010, and that is incorporated into the document. And then there’s some limited clean up. So, first off, with the state legislative directives…one of them is based on the Senate Bill 305, and that is where the major subdivisions…it has to do with giving more time to review and ultimate rec…or decision on major subdivisions that are greater than 50 lots. That type of…the language to address that you will find in Article 4. And as you go…we’ll cycle back through this, I suspect, so I can come back to pages if you’ve got questions. But that was one of the state legislative directions that we’ve incorporated. A host of other state legislative directives come from House Bill 486. There’s a requirement that we state that there’s a written decision provided to the applicant within 30 business days of a final decision on a subdivision. That’s incorporated into the document under our procedures chapter, as well as our appeals section in Article 1. There’s a requirement that public hearing is required and that we need to state that specifically for variance requests to a major subdivision. That you will find in Article 4 in several places, primarily. Again, that’s the procedure chapter. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 6 of 54 The requirement that there be a certification from local government that a condominium project is exempt or has been approved based on certain criteria. That’s not a change to the technical…the technical aspects of whether a condominium would be approved or not. We’ve been current with that language from state law; but this is about certifying, it’s about the paperwork and getting, you know, proper certification and getting that filed and acknowledged that it’s been reviewed and in accordance with zoning, in our case, most of the time. There’s a requirement…or the ability for the City to require a percentage of improvements or specific types of improvements to be completed before allowing bonding or other reasonable security for purposes of filing a final plat. I can talk about that a little bit more later, if you want to; but you’ll find that new requirement stated specifically in Article 4, a few places and a place in 5, which has to do with submittal; and 9, which has specifically to do with public and private improvements. House Bill 486, they were really busy on this one, so there’s more. Having to do with the exemptions to subdivision, that’s Article 8; they’ve added a separate section for aggregated parcels to the list of subdivision exemptions. There’s a requirement for a statement about the waiver of right to protest RSIDs and SIDs to expire within 20 years after the date of the final subdivision plat is filed and that they be about specific development improvements. And that is incorporated into Article 5, dealing with the submittals. And then one smaller, other revision was to separate out wildlife and wildlife habitat, having to do with primary review criteria and just the concept being to address them separately instead of combined as criteria goes. So with regards to aligning with the Title 20, there’s some things having to do with general interpretations that the consultant had done in the zoning piece that is a nice sort of template that also worked well in the Subdivision Regs and he incorporated in to the beginning of Article 2, the definitions section. He did make some revision as he felt necessary to kind of correlate with the Title 20 in the Article 2 definitions. We did some revision, there is some revision there on the Planned Unit Development section. Also, with regards to the riparian regulations, if you recall, we made several revisions to the riparian regulations in the zoning code and in some very early drafts of looking at the revisions to subdivision, the consultant was thinking of going down the…you know, using the same approach in the sub regs; but we got a lot of concern and comment back on that, so what he ended up doing is backing off of the same approach necessarily as Title 20, but also mirroring some of the regulations that are in the County Subdivision Regulations and it’s kind of blend. So you’ll see that we’re really tackling it from two sides: what is going on in Title 20, as well as trying to reflect the County Subdivision Regulations. On the hillside protection side, we also brought the language and approach from the Title 20. If you recall, there was a shift from hillsides starting at 10 percent to starting at 15, that needed to be incorporated. And a few other things like that. It’s not always a straight parallel, because zoning is dealing with lot-by-lot, and subdivision is dealing with creating those lots. And the parent parcel, which might have more to do with the roads and the lay of the land, basically, the entire parcel instead of just a building area, that kind of thing. Clustering conservation was changed quite a bit in the Title 20; so consequently, he wanted to update the Subdivision Regs to have the same approach. It’s somewhat the same, but also sort of simplified in a few ways, too. On the reflecting the County Subdivision side of things, I talked about the riparian regulations already. And we can go back into that as you have questions. There was also, some revision that had occurred on the county…with the County Subdivision Regulations having to do with addressing proof of access at final plat. And we’ve reflected that same language in the Subdivision Regulations. Some revisions were made under the procedures for plat adjustments that reflect what the County was doing. And then we’ve kind of come full circle on a couple of submittal requirements from the way we used to have a requirement about four to five years ago. And that is now being specific about the need to submit an environmental assessment for major subdivisions. That’s not necessarily a change because of state law or a change in what we thought…what we felt was the practice, anyway, because your primary review criteria and the way that we had it set up in our regulations was already requiring those things that should be part of an environmental assessment. But the County wanted to kind of take a belt-and-suspender approach and make sure ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 7 of 54 that we specifically also address it as that thing called an environmental assessment, and this draft that you have is taking that same approach and introducing back into our document for major subdivisions. I’m going to actually jump to the next…the second item on this next slide, that’s the community impact report—it’s kind of the same idea. That we had been asking for it, specifically, we took a different approach in our last full rewrite because it…we felt it was redundant with the kind of things you have to submit in the primary review criteria, but now the County is taking the approach to specifically call it out, and specifically ask for those things in a Community Impact Report, so we’re reflecting that as well. So back up then to soils assessment. This is something that the County is now asking for in the application and we’re going to come at from first getting it into, you know, laying the foundation, if you will, in our submittal requirement and then see where it goes with the application from there. And that is primarily dealing with if you have prime soils of…prime soil types…prime agricultural soil types…I’m talking off the top of my head. We made some revision to how we describe what needs to be submitted for phasing plans; and we also did some revision to the variance language, I think, probably tightening it up. Saying that, you know, one way that you can’t…I think it has to do with not allowing a variance if it’s just for an economic hardship, etcetera, that kind of thing. And you’ll find it in Article 6. And then here’s a little bit of information about that resolution having to deal with parkland. There are several things that that parkland resolution tackled; and it’s all incorporated, it, like I said, was reviewed, gone through its process with Planning Board and then City Council in the last year or so. It would require parkland in some major subdivision situations, not all. It addresses alternative determinations for parkland area. It introduces an appraisal requirement for those minor subdivisions and then it also links it up with the submittal for those park…minor subdivisions that might now need to provide some parkland. And you’ll find a lot more information about that under Article 3-080. So finally, there is some limited clean up that is incorporated as a part of this. That was based on early wishes to try to deal with some of the vague language that we have in the document. That vagueness comes from statements like, you can do this unless this is present; or you can do…you have to follow this rule, except for some kind of situation. And I think from implementing that language it’s found to be pretty difficult because you never know whether…you know, the staff wonders whether they are…whether it is going…that unless it’s meeting the full intention of what statement was, and so they end up needing to take it to Council to get their final approval on it through variances often in the past. What we wanted to try to do was kind of try to create a little more predictability and still allow some flexibility in this process. So Kirk, our consultant, has worked on some of those situations and, we felt, tried to clean up some of that language for us. We also did some revision in Article 8 where there was some question about…we had some lingering statements in there about the ability to go to City Council and have a hearing to consider exemptions if they are not meeting minimum lot area or setback—zoning kind of things. And yet we also have language that says whenever you’re doing an exemption to subdivision you have to comply with zoning. So it was creating some confusion and we had these lingering statements that we feel need to be taken out. The bottom line is that the exemption must meet zoning. And we tried to rework some language that’s been in there for a little while about 5-foot access when arranging or redesigning lots, so that the approach is clearer but the intent has not changed. With that one in mind, I do have an additional revision that I need to ask you to consider and we can come back to that one if you want while you’re talking about the clean up pieces, if that would ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 8 of 54 be better, because it might be a bit more like information overload. So, it is some additional clean up we’d like to recommend you make an amendment for pertaining to 8-040.4 E to D. And with that, I’ll just kind of bring us all back to asking you to consider the entire Articles 1 through 9, but doing it in a limited way because we need to keep the scope within the elements that I’ve talked about. From the consultant’s viewpoint, we have a limited review, we’re trying not to working towards not dealing with policy issues. He’s had earlier conversation with the community, he’s developed an Advisory Group draft; he’s considered what comments he had received and developed this Planning Board draft that you have here. And we ask that you would limit your consideration to support denial or minor changes to revisions. Where you go if there are major changes is up to you, of course. But thank you for allowing me some time to give you an overview and I go in any direction you’ve got questions for as we get into that. Thank you. Jennifer Clary: Thanks Laval. So now we’ll just go ahead and go with public comment. So whether you’re a proponent or an opponent, just come on up to the mic and state your issues or concerns. Lee Clemmensen: Good evening, my name is Lee Clemmensen. I was on the Advisory Committee until I simply bailed out feeling it was a futile gesture and that comments were summarily ignored anyways, so it was going nowhere. So I kind of put together some of my overviews of this new subdivision rule. I don’t have anything that I would get hysterical about, but I just had some clean ups on it that I had some questions or things that I simply didn’t understand what was meant or why it was being done. In Article 1, basically, when you get diversity of housing there is plenty of affordable housing in Missoula of all different kinds. We can’t even sell a Burn Street property, that one is being subsidized, and so there are a lot of questions about how much we’re going to bend over backwards for building additional, you know, and making amendments that will allow for diversity in housing. I think we’ve already got it. But, more seriously, starting on Article 2, this dealt with, from BOA, on which I serve. When a subdivision is brought through a BOA…through a OPG Staff member to another, there will problems with coordination of directions from the OPG to the subdivider and a resident. This has happened; we’ve actually had one case where a guy, he got an approval on a project and then somebody took over from OPG and told him he had to have a variance, and he already completed the project. And it was a very confusing issue. Here I would like to say that if at all possible, once you start with one OPG person, you stay with that individual throughout the process because it seems to me when we get a lot of different people taking over projects…now, Laval said, sometimes people quit and they have to be reassigned, but to make that as smooth as possible…and, otherwise, I’ve heard from developers that this has been kind of a real concern that there hasn’t been the continuity that needs to be there. And 34, the dwelling unit, eliminated from that was permanent living or…that was eliminated, that line, and I don’t know why that was, I didn’t see any particular reason for that. The area of a lot, exclusive of street, highway, alley, road or rights of way, unless otherwise expressively stated. Can this mean, like at Lincoln School, where a lot can be drawn which then can take up part of the alley or the entrance access road as part of the legitimate lot being sold for the…as part of the parcel. So that was one of the questions that I had. Up there, when you looked at the site plan, you could actually see where somebody’s lot included part of the access road for parking and for alleys. So that was kind of another question. A parcel…I have a lot of references to Lincoln School in here, because I went through that in depth with the City and with the City Attorney and so on. And what happened at Lincoln is you had 15 lots…13 lots being created, it was divided into 5, 5, and 3, and ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 9 of 54 then brought in as minor subdivisions. So it never went through subdivision review, it didn’t have a public hearing. And I talked to Jim Nugent, one night he called me, and he said, well, we can do stacking. I want to make sure that in this subdivision rule that is expressively forbidden—the idea that you can take a larger subdivision, chop it into chunks, and then enter it in smaller pieces so that you won’t have to go through a public hearing; and this all got messed with a PNC, but the PNC is not—as far as I can tell from the state law—exempting the number of lots for a subdivision. And so there are the stacking of lots is what I was told. And so I called the County Attorney and he said well we don’t like it, but it happens. So I thought well, let’s clean that one up so we don’t have situations where people are taking larger subdivisions and cutting them into little pieces and getting them through that way. These were not phased in, by the way, they came in at one time. So we’re not talking about phasing in a subdivision every few years or whatever, this sort of came in at one time. And there were times when OPG said well, we don’t know if we can do it, well maybe we’ll do it, and then, finally, I got a note from Jim Nugent saying, yeah, this is legal, we can do it. But I couldn’t find anywhere on the subdivision law that said this is how we should work. Now, that is water under the bridge. But I think we want to make sure, in this new subdivision, that we don’t leave that door open for this, because it really did cut out the public process because there was no public hearing on those, either. There were 350 angry petitions to stop the project and they were summarily ignored. So I think that in a process like this, all it does is leave a very, very sour aftertaste and we want to make sure that doesn’t happen. So you’ll see references to stacking through it here. I have another one about public health and safety. Have we ever considered what would happen if we keep building subdivisions in areas like Grant Creek, Rattlesnake, Pattee Canyon where you may not be able to get people out in the event of a real forest fire. We have never evaluated public safety in terms of public hazards. Not just sanitation, which is dealt with in this document, but fire and other emergencies. Because I think we really have to, at some point, deal with that. Minor subdivision, I brought up the stacking again. Floodplains, I saw that it was mentioned after the fact, Laval, it should go back in…the 100 year floodplain should probably go back because it’s the first item in this section. The next page, forget about Lincoln School, we covered that. Street access and transportation, and then it says may be narrower than standard. How do we do this for public safety? Can we still get safety equipment down alleys or down small streets? And I’ve heard of people over there at Hellgate Meadows that say if you build on either side…or if you have cars parked on either side, you can’t get the emergency vehicles down the middle. And we have to consider what the total width has to be for a safe access to allow for emergency vehicles. Now, I have several references to this new, the legislative ruling on waiver; and this was one that was passed under SB 0310 and it basically says not only do you have the 20-year limit on a protest waiver, but it says a governing body may not require as a condition of subdivision approval that a property owner waive a right to protest the creation of a special improvement district or a rural improvement district for capital improvement projects that does not identify the specific capital improvement project for which the protest is being waived. In other words, you can’t have somebody buy a piece of property of a subdivision and say, well, you know, down the time we…you may have to pay for additional roads. This is clear that you have to know specifically what you’re paying for. You know, are you going to pay for 60 yards of sidewalks, are you going to pay for X amount of roadway, or whatever it should be. But this was in response to people who found out on Hillview Way that they didn’t know that they didn’t know that they couldn’t protest because they’d waived their right to protest and they had no idea. And I think this needs to be very clear. Several waivers of protest are in here in many different sections. Now, on alley standards, No. 6, the minimum pavement’s 12 feet wide. What happens, and we’re talking about the new zoning, what happens with increased alley parking with all of the ADUs that can go into multi-family as well as a multi-family zoned alley houses. If you have only a 12-foot ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 10 of 54 wide alley, how are going to keep people from parking all over the place and completely closing down the alley? Twelve feet is really, really narrow. So I think that needs consideration. Affordable housing is in here as inclusionary zoning, a 20 percent total number of dwellings. That, by the way, is ruled illegal in both California and Idaho, they’ve had Supreme Court rulings on that. I think we better go really carefully with that because inclusionary zoning has sailed in a number of other states. The waiver things are covered. One Riparian Resource Area, Page 337, this contradicts the earlier definition of what plans count and don’t count. You have in here, sometimes they say oh, you count the neighborhood plan, or you count the comp plan, or you count the growth policy or, you know, all different kinds of plans—like the Rattlesnake has a plan. What…I think from the very get- go any formal registered plan should be applicable. But in this document, it’s sort of fluid because at some points they refer to certain plans and in other places another plan so what will the governing factor? You’ve just had a suit lost by the City up at Sonata Park, a lot of this involves comprehensive or Rattlesnake plan up there. So we need to make sure that in this new document we are sure of everything that we are doing in terms of what plans are being followed, what is applicable, what counts. In the new zoning they say you can have…you can develop neighborhood plans. But that isn’t referenced in here at all in terms of what would happen and you might get into subdivision if you got into a big PUD. And of course, then, by Article 4…I’m skipping over some of it because you’re good readers. It says in the neighborhood meetings, that’s where you meet with everybody and you tell them about the subdivision, only written comments will be included in the application, not a record of verbal comments. I find this interesting because on Lincoln School they had a list of verbal comments, and they were pretty to the point, I don’t think one…not one of them supported the subdivision. But I think you need to have a recorded record of what verbal comments are there of the people who came to the initial subdivision neighborhood meeting. Because then you can go back and you can have a real feel as a governing board or Planning Board of what the impact is toward a certain subdivision. A good subdivision, like…or a good project like the one that the Lambros’ did over here at Café Dolce, very well handled with the neighborhood, very positive, went really well, but comments were very positive. I think it can be handled really well or really badly but I think the verbal comments should count. Now, the public hearing and notice, scratch that, because I got confused between what was required, people to be notified of a subdivision, that’s only adjoining properties, that’s not the same as what you would have if you were actually launching a protest. Next page, it’s back to stacking, I want to get away from that. Now, does this law protect historic sites. There is some protection of historic sites under the state laws but what happens here. And I covered the overcrowding…all right, variances. It’s very interesting in here, they’ve got it so that the variances can consider financial hardship in it. But, actually state law is very particular on that, it is…there are only variances given by two organizations in the City. Either by the City Council or by the Board of Adjustment. And anybody doesn’t like the variance we give at BOA can appeal it to the District Court. At the City level, they have the final word of variances they give. But they are based on hardship. And it isn’t on financial gain as a consideration; in fact, specifically, we’ve had some lawyers look it up at the law school and it doesn’t include financial because then you could say oh, gosh, you put all this money into it and his subdivision failed. Well, you know, if this is really a clear document and the subdivider can go through it and follow all the steps, the subdivision should sail right through. I mean, if we’ve got very clear laws on it. On the last page, Article 8, this one I would like to have a little bit more fully explained again so that somewhere in the wording, stacking will be eliminated and types of exemptions, too. How does this actually affect our new multi-use and ADU zoning and ownership questions and how is the ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 11 of 54 growth policy involved? We know the Growth Policy is not a mandatory document but fate has been pretty clear that it’s an advisory but not a mandatory document. So, when you mention it in here, how is it actually involved? And the rest I read to you about SB 0313. Any questions? I know I ranted in here and I tried to go as quickly as possible because I don’t want you guys here until 11:00 or 12:00, because we’ve done that with the zoning a lot of times. Jennifer Clary: Thank you, Ms. Clemmensen. Feel free to come up, anyone. Ruth Link: Good evening, I’m Ruth Link with the Missoula Organization of Realtors and excuse my voice tonight, I think I’m coming down with something. So I kind of sound like a frog. You guys do have our letter with regards to the concerns we have on road construction and riparian areas. And as the letter states—I’m going to be very brief as well, because I don’t want to be here until midnight, either. We respect that the County or the Office of Planning and Grants wants to have some discussions at a later time and all we’re saying if that’s the case, let’s also have the discussion on building within those areas at a later time as well, do both of them at the same time package deal. That way in the interim you’re not dealing with a set of regulations that alm…is pretty much impossible to meet, especially when you look at the fact that items like woody draws and irrigation ditches are included. So, you know, drive through Missoula and look at all the irrigation ditches that are currently crossed by roads, by driveways, by sidewalks, by trails and just kind of think to yourself how that could really create a problem for future development. I mean, Missoula is just covered in that kind of irrigation ditch. And then, really quickly, one thing that we are still concerned with is the requirement of an agricultural soils assessment. We are fully in support of the Office of Planning and Grants, the City, and the County coming up with a policy on agricultural preservation. You guys probably know that we are developing a study currently, hopefully we’ll be done within the next month to talk about, you know, what Missoula actually needs. But to put a requirement in without a policy in place, regardless of the fact that they’ve been asking for it already just doesn’t seem to make a whole lot of sense. I do have another, you know, pretty large list of concerns that hadn’t been changed in the original draft; I’d be happy to provide them…provide you with them or answer any questions, if you’d like, but those are the kind of the two big ones that we wanted to bring forward with you tonight. Thank you. Jennifer Clary: Thank you. John Hendrickson: Good evening, John Hendrickson, MBIA, Missoula Building Industry Association. First of all, I’d like to thank…no, there’s…are many people here from the Advisory Board for the many hours that they put into this and then all the hours that you are going to put into this. So, but I’d like to echo MOR’s concerns about the riparian question and such, MBIA also has the same concerns and we feel it shouldn’t be part and parceled, basically that if you are going to address this issue again later on, do the whole thing at one time whether up front or later on but not to do it part and parcel. Have the discussion in full. The other thing I’d like to bring to your attention and I’m not sure if the Planning Board Committee has gotten a spreadsheet…I’ll call it a spreadsheet, but this from OPG. And it’s a five page document to basically of concerns from the Advisory Board and the public as to the subdivision rewrite and what actions had taken place and I got copies and I’ll pass them out to everybody. But first of all, there’s no sense in me passing out, have you gotten this at all? Or seen this? Okay, so I am going to…I’ll make this available to you because these are concerns that will be coming up so you have a history of where everything is coming from. And that’s it, basically, okay. Thank you. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 12 of 54 Jennifer Clary: Thank you, Mr. Hendrickson. Please feel free to come up, anyone. John Sullivan: Hi, my name is John Sullivan, Vice-Chair of the Water Quality Advisory Council in Missoula City-County here. We just wanted to come here and express our support for the amendments in Article 3-130 on the riparian resource areas. We want to convey to the Planning Board that the protection of riparian resource areas is vital to water quality protection within Missoula County and City boundaries and also that it provides critical areas for wildlife and both aquatic and terrestrial habitat. And that other amendments that are proposed and certainly have question with some other folks in the room should be discussed and can be discussed further in regards to roads and other amenities in riparian resource areas. But we wanted to certainly extend our approval and our support for the protection of the riparian resource areas. Thanks. Jennifer Clary: Thank you. Jackie Corday: Hi, I’m Jackie Corday with the Parks Department, I think most of you know me, but some of you don’t and so I just wanted to let you know that the Parks Department submitted comments as well, it’s probably in your packet, especially pertaining to the riparian regulations and so I’m here tonight just in case questions come up. Jennifer Clary: Thank you, Ms. Corday. Brianna Randall: Hi there. My name is Brianna Randall, I’m here for the Clark Fork Coalition (I’m afraid the microphone is going to fall right into my face.) Thank you all for your time on this and thank you to the City for putting time into this subdivision regulation update, we really appreciate it. I’m also here to comment specifically on the riparian resource protections Section 3-130. The Clark Fork Coalition really appreciates the updates, the amendments that are included here. We also submitted comments during the public process and appreciate the efforts of the City and the consultant to incorporate those comments. I understand the concerns by some other folks that were mentioned here. There are other issues in the riparian resource areas that might need broader and larger forums for addressing; however, I think that all of the amendments included in here are well within the scope of this project based on the presentation I saw by the staff. And because riparian resource areas are so near and dear to all of our hearts and so vital to the quality of life, the economy, the realty industry, our water quality, it doesn’t necessarily mean we have to do it all at once, we can do it in chunks. These amendments make sense. Again, as you all know here on the Planning Board, perfect can sometimes be the enemy of good and I think these are good amendments and the Clark Fork Coalition supports them. So thank you for your time. Jennifer Clary: Thank you, Ms. Randall. Taylor Greenup: Hi I’m Taylor Greenup, I’m a resident in the City of Missoula. I’m also a professional hydrologist with the U.S. Forest Service. And I’d like to speak tonight in support of the amendments for strengthening and enhancing the subdivision regulations for protecting riparian areas. I hope that the Council considers the actual motivations behind all opinions here this evening in terms of both the short and long term effects of subdivision landowner, adjacent landowners, and all citizens of Missoula County. These subdivision revisions are just one of many changes that need to occur to protect riparian areas across the County and I will explain why this is so. We need to protect riparian areas much better than we have in the past. Riparian areas provide benefits for landowners in subdivisions as well as their neighbors and all County citizens. Riparian areas also serve as valuable habitat for wildlife, birds, and fish that we all identify with the Montana landscape that we cherish. The effects of the proposed subdivision regulation changes all revolve around loss or reduction of riparian vegetation. Loss of riparian vegetation can result in erosion and land loss to the local landowner as well as adjacent landowners. Land loss leads to additional maintenance efforts and costs and changes aesthetics, habitat, and, arguably, land value. Disturbed or unprotected non-native areas increase the risk of weed invasion and, again, ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 13 of 54 increase treatment efforts and costs. Impacts from the loss of riparian vegetation include the loss of runoff filtering capability, the loss of the ability to reduce flood-flow energies, as well as the loss of ability to protect groundwater quality. Groundwater quality…or groundwater is perhaps one of our most valuable resources because the majority of drinking water here comes from Missoula Aquifer. Intact riparian zones ultimately and cumulatively across the County reduce land loss, landowner maintenance, and at least maintain or improve property values over time. Protecting riparian areas preserves the aesthetics and habitat that contribute to why we all love and desire moving to and living in this City. And as a final note, any one of us could argue the point that protecting one riparian area for one land parcel or even in one subdivision may not be that important, but as a whole, protecting each parcel is paramount to the collective values of that subdivision as well as the collective value of all citizens of the County of Missoula. Thank you. Jennifer Clary: Thank you, Ms. Greenup. Any other comments? Okay. Peter Neilson: Good evening, Madame Chairman, members of the Board, my name is Peter Neilson, I represent the Missoula City-County Health Department. We also have submitted agency comments, primarily on the riparian resource issue. We are supportive of a number of areas of revision that are proposed the subdivision regulations, including the sections regarding Planned Unit Developments, the Conservation Cluster Development section, and the riparian resource management area section. The non-motorized section in this regulation is not addressed in any significant way in revisions at this time. We hope that this will happen at some point in the future. We’re not asking you to do that as part of this revision, but we do need to closely examine the language and requirements of the non-motorized section of these regulations to enhance our non-motorized transportation infrastructure in our community. This will enhance healthy transportation, physical activity, and help protect our air and water quality in our community. Non-motorized transportation infrastructure should really be considered on a par with our motorized transportation infrastructure in our community and these regulations need to be clarified so that they can be consistently applied and clear. There are a number of areas that need improvement. So we encourage the department and the Board to work to improve the non-motorized provisions of these regulations in the future. The Health Department is keenly interested in these regulations and willing to work with you on that process. With regard to the riparian resource regulations, we are strongly supportive of the amendments that are proposed, recognizing that there will be additional work needed in the future. But we’re very complimentary of this department and the Board of the work you’ve accomplished with riparian resource protection, really over the last 15 years. It’s been about 15 years since these have been adopted as part of local subdivision regulations. There’s been a lot accomplished. In particular, I compliment this Board on the work you’ve accomplished in the last several years in terms of the types of designs of subdivisions that have been coming forth. These have been very, very well- designed, and I compliment, also, the development community for working closely with folks to get this accomplished, to do these riparian resource areas and have these protected in these large subdivisions. Again, the Health Department is keenly interested in looking at an additional regulation changes in the riparian resource section but recognizing that that’s outside of the scope of what’s proposed at this time. I echo the comments that have been made by the two previous speakers about the importance of protecting riparian resource areas. And from our Health Department perspective, from the Water Quality District, where I work, water quality is one of the prime reasons that we need to protect our riparian resource areas. With regard to the road issue, I ask you to closely examine the language that is included in your draft in Section 3 130.6. What it says, actually, is that road construction is prohibited in riparian ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 14 of 54 resource areas except in cases where there is no other practical route to access the subdivision. So this is not a case where you have to come get a variance every time. This provides for access when there’s no other reasonable access. So I think the characterization that has been made is not quite on target with what’s actually in this draft. I ask you to carefully look at that. I think this is probably pretty workable but, again, we’d be willing to discuss it any further if there’s further changes proposed to that section. Thanks, again, for your time and thanks for your work on this and we look forward to working with you. Thank you. Jennifer Clary: Thank you, Mr. Neilson. Any other comments? Seeing none, we will close the public portion of this meeting and discuss as a Planning Board. Laval, do you have anything to add after any of those comments, or just want us to get into it. Laval Means: Well thank you, Laval Means, yeah, I just wanted to refer back to this matrix that was distributed to you. That was something that we prepared for the Advisory Group and it was in response to comments that we heard on our Advisory Group draft. So, first off, one of the things that I heard earlier that we just discounted anything that we heard from Advisory Group members or any members. And I think you might see from five pages of comment, consideration and how we proposed revision in many of those places that they weren’t just discounted. And if there were…there wasn’t a change made, it was at least provided with some rationale for why that change wasn’t made. But since then you have a Planning Board draft, and that’s the only reason I didn’t distribute it is because some of the comments were pertaining to things that aren’t even in the Planning Board draft anymore. But it’s true, I think they can be helpful to some of the comment you’re hearing here tonight and how they were addressed or if they weren’t, why they weren’t, they are in that. So that’s just some background and it is available, also, on the internet. Thank you. Jennifer Clary: Thank you, Laval. So just as a point of organization for this evening. I think what I’d like to do is start with No. 2, which is in this…our memorandum from Laval, which is Attachment C and that’s addressing Senate Bill 305 and then House Bill 486. So, potentially, we could get through at least that portion, for sure right now. And then start getting into potentially going back to No. 1, which would be the items amended as adopt…or as Title 20. And then just kind of go through it that way. So, 2, then 3, then 4, then 5. Does that make sense? Don. Don MacArthur: So if we have comments that are about specific language that’s proposed, I guess I’m not sure…I guess I can probably track that methodology, but I was kind of thinking more like going through by Chapter so that I would be able to go through…because that’s how I organized my comments, but… Jennifer Clary: Sure. Don MacArthur: But either way it works for me. Jennifer Clary: I think the reason that I’d like to go through it that way is just because I want to make sure we get at least that portion done tonight. Because if we decide, you know, going through Article by Article that it’s getting kind of bigger, we can extend this meeting to the next meeting since we don’t have anything on the schedule. But at least we could get this portion completed. And then see where, you know, everything is kind of weighing in. Don MacArthur: So do you want a motion for discussion? Jennifer Clary: Yes. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 15 of 54 Don MacArthur: I’d move that we approve the changes in the document that are outlined in paragraph 2 of Laval’s memorandum which are the regulations due to SB 305 and the changes based on HB 486. Jennifer Clary: Can we get a second and then discuss that? Tim Ibey: Second. Jennifer Clary: Seconded by Tim. Discussion? Tim Ibey: I have…I’ve been wondering with the waiver of [inaudible, off microphone] Sharon Reed: I’m not picking you up. Tim Ibey: That’s because I’m too heavy to pick up. On the waiver of protest, is that retroactive at all to…I mean, we’ve done that to a bazillion people and is that something that’s going to be eliminated at the anniversary of their…the 20th year of their plat recording? Laval Means: For existing subdivisions, I think they have to operate with the regulations and rules that were in place at the time it was approved and/or submitted. So this would be in effect for new subdivisions with the expiration…I mean, we hope to never get to a 20…I think the City hopes never to get to a 20 year, generally, anyway, but it is for new subdivision. Jennifer Clary: Okay. I’m waiting for John right now, unless anyone else has any comments. John. John DiBari: Laval? Laval Means: Yes. John DiBari: Are you ready? I’m wondering if you could do me a favor. This is something that I had flagged earlier and it came up, I think, in your discussion and maybe even in Ms. Clemmensen’s; but can you describe a little bit more…it’s 8-0-3-0, No. 3, the aggregation issue. And I’m wondering if you might be able to provide just for sake of clarity an example of what’s going on there so that we completely understand the intent and the context. Laval Means: It does show 3-0 are all different kinds of divisions or aggregations that are exempt from your subdivision review. John DiBari: Right. Laval Means: But they always still have to comply with zoning and this is list of the different kinds of there are. John DiBari: So number…or .3 specifically… Laval Means: Right. John DiBari: …is brand new and that’s where my specific question lies, if you could just flesh that out a little for me. Laval Means: I think the distinction there is previously, if you look at it was grouped with…or aggregation…it was grouped with relocation of common boundaries and boundary relocations or ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 16 of 54 aggregations. And state law split those out so that aggregation is addressed separately from that. So you could previously have done an aggregation. But now it’s covered under its own section. I mean, that’s the main take away that I have from that. Sorry. John DiBari: So this is essentially a reverse subdivision, right? You have…let’s just make it up, you have five parcels in common ownership, you want to erase the interior lot lines, and you are essentially un-subdividing…. Laval Means: Right. John DiBari: …and that process in this provision does not require an application for subdivision review or any review by the governing body whatsoever. Laval Means: That’s right. It’s the combining of lots and then your…that parcel, then, gets re- described as one legal description where you might have had five before. Yes, thank you, that was really great. John DiBari: Just wanted to be sure. Jennifer Clary: You ready? John. John DiBari: Just a matter of process because, like Don, I was kind of envisioning we’d go through this from the beginning and move through and just on my quick read of what’s in this section 2, I don’t think I have any other further comments or questions but I guess I’d like to kind of reserve the right to go back to that if we kind of cross ourselves up somehow. Even if we do go ahead and vote on this as approving it in the interim. Jennifer Clary: Fair enough. So let’s do a roll call vote, then, if we don’t have any other comments. The vote was as follows: John DiBari Yes Kelley Durbin Yes Jonathan Haber Yes Tim Ibey Yes Don MacArthur Yes Jerry Petasek Yes Carol Evans Yes Tim Skufca Yes Jennifer Clary Yes The motion carried with 9 votes of yes and 0 votes of no. Sharon Reed: It’s unanimous. Jennifer Clary: Motion carries. So we go…now we can either go to number one and go through Title 20 through Article by Article…do you want to do it that way, Don? Don MacArthur: It would be easier for me, but that’s not…it’s not all about me. Jennifer Clary: Well I was just thinking because they’ve given us the general interpretations revisions to Article 2 and then we go definitions to Article 2, and then we have 3 and 5 and 3, you know, I figured we can take on… Don MacArthur: Yeah. Jennifer Clary: …item No. 1 by going to those Articles specifically. So we can start at Article 2. Laval, did you have something? Laval Means: I was just going to say you addressed Article 1, the primary revision with that motion just previously because the only thing that had some substance…and it was really a ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 17 of 54 clarification…some substance to it was the appeals piece on 1-1-2-0 that had to do because of state legislation, so you really have covered it…Article 1. Jennifer Clary: Okay, thank you. So we’ll start at Article 2. Don. Don MacArthur: I have two things on Article 2, one is Article 2-3 there…in the definitions sections there’s a definition of agriculture and I’d like to make a motion that we take the definition of agriculture and split it into two definitions—one that is a definition of agriculture and one that’s a definition of agricultural land. So that last sentence is a new definition called Agricultural Land “includes land used for agriculture or having a soil type defined by Natural Resource Conservation Service as having agricultural importance, including prime farmland, farmland of statewide importance, and farmland of local importance.” Kelley Durbin: I would second that. Jennifer Clary: Do you want to make a motion or… Don MacArthur: I just did. I made a motion. Jennifer Clary: Seconded. Any discussion? Jerry. Jerry Petasek: My question’s quick. Do these in any way, shape or form or do they have to match zoning definitions? Don MacArthur: And wasn’t that the way we made it in zoning? Laval Means: I believe you have…I’ve got the zoning and I’d like to check on that. I think this is something to be careful and consistent with. I think Janet’s here to tell me something else but…but we also have perhaps the same definition this way in our growth Policy and in the County Sub Regs and I’d like to just check that for a minute. Jennifer Clary: Janet. Janet Rhoades: Thank you, I guess I shouldn’t be telling secrets. For the record, I’m Janet Rhoades with OPG. As I think all or most of you know, I work in subdivision review, so I help facilitate the staff review portion of subdivisions, so I’m here tonight to offer just any insight as someone who works on the ground a lot with these regulations, and answer questions. What I was going to tell Laval is something to keep in mind if you want to change definitions, or split definitions, or combine definitions: they are referred to in the regulations in specific places. So just…if we have a separate agricultural land definition we just want to make sure that we don’t confuse anything that might refer to the term agriculture meaning agricultural land as well. So it’s an idea that we could look at, but we might want to look through the regulations carefully for all the references to agriculture or agricultural land and just make sure that we don’t change what a term is referring to. Does that make sense? Don MacArthur: Absolutely. Janet Rhoades: I feel like I’m getting some confused looks. So… Don MacArthur: I mean… Janet Rhoades: …we can take this suggestion and then look at it more closely as staff, if you’d like. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 18 of 54 Don MacArthur: So the point was, of the motion, just that: because I think that the definition isn’t that clear farther on in the document and I think it would be more clear if agriculture referred to the use and agricultural land to the resource, the land resource. And I think that that would help clarify later on in the document some of the places where this is referred to. So that was my intent with the definitional suggestion. Jennifer Clary: Laval. Laval Means: I’m just going to provide with maybe another “however.” The primary review criteria is to consider impacts to…impact…to impacts on agricultural. Maybe that’s where you see there’s this lack of definition. All right? But that’s what it says at the state level, “impact on agriculture.” It doesn’t say agricultural use versus agricultural lands, so then we’re faced with what do we use? Don MacArthur: Okay, so what I…maybe what I would want to do is to amend that motion to say that the definition of agriculture would stay as it is, but there would be another definition for agricultural land just repeating that last sentence. I mean, I think we…what you said, Laval, makes sense in that we’re…we want that agriculture in the state law to have a definition that it…that covers both land and use. But there are other places where we come back and talk about types of land for various subdivision review criteria and I think that ought to be referring to agricultural land rather than prime farmland as it is. So that was my intent was to have a definition up front that would then be the definition of what agricultural land is and then we use that in the document when we are addressing that issue. Rather than defining it within the document as we go and as we are right now. Jennifer Clary: Laval. Laval Means: I think that that approach does…stays consistent with the zoning as well. Because we have a definition of just agricultural land… Don MacArthur: Okay. Laval Means: …in zoning, but we have exactly the same definition in the City Sub Regs for agriculture as we have in the County Sub Regs and have had…have heard comment from folks previously about the value of keeping them the same between them two, so that would work to actually duplicate and give us something… Kelley Durbin: I’d amend that. Don MacArthur: Friendly. Jennifer Clary: Okay, any other discussion? Jon. Jonathan Haber: Well I just wanted to point out that we’re starting immediately on working on some language that was not changed, it was the original language and I guess I’m just asking whether that creates any problems or is everything in here really fair game? Don MacArthur: Well I think I was changing it because I remembered that we had some of this discussion on Title 20 and this hasn’t been changed to reflect Title 20, so maybe it’s an update that should have been changed. Maybe? Laval Means: It’s a separate definition in Title 20, it is. Jonathan Haber: Okay, I like that. So this is not setting a precedent for anything else at this point. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 19 of 54 Jennifer Clary: Any other discussion. Let’s have a voice vote. All in favor say “aye.” [All Board members answered “aye.”] All opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Don MacArthur: Okay, my other comment on Chapter 2 was on Page 2-8, Existing Grade, which is a new definition. I thought that was confusing, it says, “The grade or elevation of the ground surface after approval of the final plat and before human alteration, such as grading, grubbing, filling, or excavating.” So does that mean that existing grade is any…it exists anytime before final approval of the plat? So you could go in and…I mean, we’ve seen this before where a subdivider has come in and they’ve modified the site already. You know, they…before they applied for the subdivision. Does that qualify for being existing grade at that point or is that just illegal in general? Laval Means: I’m just taking a look at our zoning reg because I think what is happening is this was the language that we ended up with in Title 20 brought forward and you…you know, you are making a good point that on subdivision we may need to look at it at a different point and I believe the practice is it’s the existing grade at the point of the preliminary plat. I mean, they show existing grade not changed and then they also have to show the final grade and that final grade is…becomes what it is at the final plat. So we’re maybe off a step. Do you…Janet, do you know what I’m talking about? Don MacArthur: And Jon Haber points out to me that it says “and” in there, so it’s…you know, after the approval of the final plot and…plat and before human alteration. I guess the question is, you know, how far back does that “and” go? We always we struggle with this. Does it go back 10 years, or 5 years, or 20 years or a 100 years? Jennifer Clary: Go ahead, John. John DiBari: Yeah. I had flagged this as well. And I think Don brings up a good point: how far back do we go? I would think that given that we’re trying to address what’s happening in the subdivision process, perhaps the time starts ticking at the pre-app meeting. So you go far to as far back as the pre-app meeting to decide what the existing grade is. You want to go back further than that? I don’t know how we track then, though, that becomes the sticky point. Jennifer Clary: Tim. Tim Ibey: Well, it’s pretty easy. At some point we’d had subdivisions come in that were obviously at the base of a very steep hill that had been cut way back and they’ve got great grade to build houses on, but it was done within a period of time when there wasn’t much vegetation left on the hillside, so it wasn’t that long ago. But I think there’s enough information out there that we should be able to have some sort of timeframe much earlier than initial contact with OPG. Don MacArthur: How about something that just says something like the altered for the purposes of the subdivision application. You know, that would sort of get at an intent statement, if it looked like there was an intent to modify the ground for the purposes of this subdivision at any point. John DiBari: We’re just engaging in discussion, I guess, but, so even if…I’m…we’re just exploring things here. Even if it was two owners ago…yeah. Don MacArthur: I mean it’s gray area, and I don’t know what it does, I mean, we knew…some of the ones that Tim and I saw years ago, we knew that their…that this had been done, that the subdivider had modified the soil with the intent to do this subdivision and nothing happened to them. I mean, they still got…they got approvals. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 20 of 54 John DiBari: You know and I’m very sympathetic to this, I’m trying to figure out a way we can do that so it…it works. So, I think if we could get at a statement that doesn’t say a time but goes to intent, I’d be happy with that. Jennifer Clary: I think Janet and Laval have some comment. Janet Rhoades: Janet Rhoades, OPG. I thought the answer would be in the construction timing section, which is on page 1-3, it’s 1-060, which says: “Subdividers may not proceed with any construction work on the proposed subdivision, including grading or excavation relating to improvements or the clearing, burning [other stuff]…until the subdivider has obtained City Council approval of the proposed preliminary plat. For the purpose of this section, a subdivision is considered proposed at the time a pre-application meeting is held.” But, that’s an excellent point. It seems like there might be kind of a loophole there if construction timing only takes it through preliminary plat approval, and this is final plat approval. So something we could do is just replace that final plat with preliminary plat approval. Don MacArthur: And does subdividers include…you know, let’s say a developer purchases a lot from somebody and says to them I’ll purchase it with the following condition, that you regrade it for me. So is that the subdivider, or is that the previous owner? The subdivider doesn’t own it at that point, they just…you know, they’re saying regrade it for me, then I’ll buy it. And then they can say I didn’t own it. Jennifer Clary: Janet. Janet Rhoades: You mean after the preliminary plat is improved? Don MacArthur: No, before they even purchase the land. Jennifer Clary: …before they even come to see you Janet Rhoades: Before they even come in for pre-app? Don MacArthur: Yeah. Janet Rhoades: Yeah, Subdivision Regulations don’t have much control over what property owners do with their land before pre-app and that has been a problem in the past, but the regulations can’t do much to address that. So construction timing starts at the pre-application meeting and goes through preliminary plat approval. Don MacArthur: What really ought to be the ruling here is not that the…not that it’s illegal…and subdivision law probably doesn’t control their ability to move earth around, but what we really would like is to subdivide as though that earth hadn’t been moved around. You know, that you would know what native grade was when you were…when you were considering the subdivision and act and recommend the conditions based on native grade, you know, prior to whatever manipulation had happened to the soil. That would be the overall intent. Jennifer Clary: Janet. Janet Rhoades: And staff have recommended conditions in the past about restoring grade in cases, especially if the grade impacts riparian areas or creates a slope that is too steep or other…it’s a little bit like a band-aid, it’s kind of late in the process to do it, but we do what we can and you do what you can and Council does what they can to mitigate some of the impacts that happened before pre-app. But for purposes of this definition, I think it might get at what you’re saying if you just change it to instead of the final plat be approval of the preliminary plat. Or you ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 21 of 54 could even just change it to say time of pre-application, if that was your preference, it sort of amounts to the same thing. Jennifer Clary: Tim. Tim Ibey: Well you know, and I don’t know you’d address this, but I’ve known it to happen up in the Linda Vista area where you had changes of topography that are not compacted, not brought to any sort of a compaction, they’re just kind of bulldozed out there and then somebody comes along because it’s already there, flat, and builds a house on it and you’ve got one that slides down the mountain. And that was…that’s the kind of stuff that I think we worry about, you know. So I don’t know how you…I don’t know how you deal with it, either, but it is a concern, especially with the clay-based soils that we have here. You can’t add water to get compaction, because you just end up with mud, but if you do that sort of thing and then it seems like we should have some way of looking back at a historical topographical map or something and see…because some of these changes can be pretty large and as valuable as land was, it could occur. So I don’t know, I don’t know that…where you go with it, but it’s concerning. Jennifer Clary: Don. Don MacArthur: Didn’t we go through this with Title 20? It seems like we had a native…we had a discussion about this in Title 20 and it seems like we might have added another definition, too, about native grade. Laval Means: I’m not sure that there is a definition of native grade. I’ll check… Jennifer Clary: It had to do with hillside, when we talked about hillside. Laval Means: Zoning is the piece that…zoning is what is going to regulate the land before subdivision and even with that, if there isn’t a building being proposed, the grading could still occur. And so it’s a big collection of approaches and issues that have to do with a grading permit, when is it required, what is…how does Public Works approach it, what happens at the individual parcel level prior to subdivision and then what can you do when subdivision kicks in. For us, it’s…in this project, you know, what can you do from the pre-app onward and, you know, we feel we’re covered with the construction timing language and can catch up with the appropriate language under grade here and I’ll look at what we did with native grade, too. Don MacArthur: All right. So I’d make a motion, if we could, that .49, existing grade, be restated as “the grade or elevation of the ground surface after…anytime after pre-application…any…help me, somebody help me. Tim Ibey: Any time… Jonathan Haber: How about before pre-app? Don MacArthur: Prior…but, you know, that’s any time. John DiBari: That’s what you want. Jennifer Clary: At time of… Don MacArthur: The grade or elevation of the ground surface after pre-application meeting and before human alteration such grading, grubbing, filling or excavating. So all I…the only difference is to take out final plat and to put in the pre-application. Which is what I think Janet suggested. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 22 of 54 Jennifer Clary: Janet. Janet Rhoades: You might just use the phrase, the time of pre-…”the time the pre-application meeting is held.” That’s the same words that are in the construction timing section. Don MacArthur: Yes. Perfect. Jennifer Clary: Do we have a second? John DiBari: I’ll second it. Jennifer Clary: Seconded by John. Any discussion? John DiBari: So is that really what you want? You wanted to go back further than that, though. Don MacArthur: Well what I hear from Janet and Laval is that is outside of the purview of the subdivision regulation. I’m not sure where this existing grade is ever even used in this document, we need Don Latham here with his computer to do a search to see where it’s referenced, because it may not ever be referenced, in which case all this is stupid. You know, we don’t care. Jonathan Haber: [inaudible, off microphone] Don MacArthur: Jon Haber says he thinks he saw it somewhere. So, if we can find that as we go through, maybe we can go back and check this to see if it makes sense when we do that. I guess I’m…I don’t think it’s the be-all, end-all, I’d rather have it go back further, but I don’t even know where it applies, exactly, so…does it say you’re disallowed from subdividing or does it just say that you’re supposed to subdivide as…with the understanding of the existing grade being the basis of your subdivision design. I don’t know. Jennifer Clary: Tim. Tim Skufca: Would we also want to tie it into…the only time it’s going to come up is if there was a protest of surrounding landowner that has been affected by some grading and so maybe at the…in the part that protests if there has been substantial human alteration that gets greater power to object to the subdivision or something. Don MacArthur: So let me just pose another question. What would happen if a subdivider were to go into a riparian zone and dig it up? What are the regulations around that? All the folks from Clark Fork Coalition are gone, so no one oohed and aahed when I said that. Laval Means: Are you talking about after having come for a pre-application? Don MacArthur: No, just beforehand…how do we…you know, there’s no subdivision on the table, there’s no rezoning, someone just goes out with an excavator and digs up a riparian zone. Jennifer Clary: And someone file a complaint, then? Don MacArthur: Is that complaint-driven? Laval Means: I believe so. Don MacArthur: Or is it illegal somehow? Laval Means: It’s complaint driven. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 23 of 54 Don MacArthur: And is it illegal? Laval Means: Because it’s…what? Because it’s against…if it was…that lot was created when we had the zoning regulations in place for the riparian resource protection and it gets cleared, leveled, then… Don MacArthur: Then it’s a zoning enforcement issue. Laval Means: It’s a zoning enforcement issue. John DiBari: Someone else might know this, too, but it may in fact be a violation of federal law. Depending on if there’s an alteration of a wetland or something like that. But someone still has to complain, I suspect. Don MacArthur: Does anyone in the audience have an answer to that. Mr. Neilson? Peter Neilson: Peter Neilson, Missoula City-County Health Department, you raise a very important question and I think that’s one reason we do need to examine the definition of riparian resource area for different reasons than had been suggested by others. If the vegetation is removed, the definition of riparian resource is based on the presence of the vegetation. And so it really is not going to be probably inventoried and designated as a riparian resource area in your subdivision application. And it won’t have a riparian resource management plan. If there’s removal of vegetation, there is…there are some limited prohibitions on that. The Senate Bill 310, the Natural Streambed and Land Preservation Act, which is enforced by the Conservation District has a prohibition on large-scale clearing within 50 feet of a stream. The floodplain regulations, City and…the County and the City Regulations have a prohibition on large-scale clearing of riparian vegetation within a distance of a stream where it would impact stream stability. They’re a little weak in terms of that, there’s no absolute prohibition on there on removal of riparian vegetation. But you talk about…you raise a very good point. If somebody comes in and clears their site or if it’s mined for gravel, or if it’s grazed, there’s no riparian vegetation there, it won’t be a riparian resource area in your…in the application that comes before you. Jennifer Clary: Thank you. Don MacArthur: So we’re going to need some help, or I’m going to need help, here. The…I guess the question is to me there’s two things out there right now—there’s the subdivision regulations that we’re looking at and there is the zoning regulations that are recently passed in Title 20. The zoning regulations have riparian resource standards, right? They have…they have… Laval Means: Yes. Don MacArthur: They have also some standards about not moving…isn’t there something about how much dirt you can move in Title 20 or is there? There was talk about that. Laval Means: That’s part of the definition of what grading means. And it’s pertaining to hillside, I believe. Don MacArthur: I mean I think most of our concerns with the moving of dirt have had to do with hillsides over the years, that people have tried to modify the hillside before they came in for subdivision. So if it were in zoning and it’s zoned land and it’s enforceable through zoning, then maybe, you know, they would be…they would have correct or re-establish the natural grade in order to be…come in for subdivision because they…no one would give them a subdivision if they were in…out of compliance with zoning. Is that all good logic? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 24 of 54 Laval Means: Yes. I have Title 20 here and we have a specific section and it’s fairly similar to the…well, there’s some revision between Title 20 and what you have in the City Sub Regs proposed. But it’s called Development Prohibition and it tells us that no development is allowed within the area of riparian resource and no improvements of any kind may be approved that are within the area of riparian resource except for those improvements that are outlined in an approved management plan. Riparian resource exists where…it kicks in where ever the riparian resource is present. And our definition, I believe our definition of development is to build and disturbance areas, so it’s not just to building they’re talking about, so that’s the different ways of protecting and restricting the changes that you’re talking about that could happen…somebody might try to do in a riparian resource area on a single lot. Don MacArthur: It seems like, and I’ve forgotten where it was, but it seems like at the time we were considering Title 20 there was a…some regulation, it may have been an engineering regulation that if you cut and fill a certain amount of material, you have to get exety-exe permit, or there’s some limits on what you can do. Does anyone remember this? I’ve…I’m not sure where it is, though, I’m not sure whether it…I don’t think it was in Title 20, I think it might have been referred to as…you know, there’s a…because this came up in Title 20 when we went through it. Laval Means: Like in the grading? In a…when a grading permit is required or something… Don MacArthur: Yeah, right. Laval Means: …or having to do with hillside? Don MacArthur: I don’t feel like we can solve this existing grade question better than what we have right now, although I’ve now got a new thing on my list for the definition of riparian resource, which is 2.14. Did we ever…do we need to vote on this? Jennifer Clary: To amend… Don MacArthur: .49? Jennifer Clary: .49, yes. I think it was seconded by John, right? Friendly amended to the time of pre-app, Janet’s comments. Okay, so just take it like that and vote on it? Voice vote. All in favor say “aye.” [All Board members answered “aye.”] Any opposed? [All Board members were silent.] Jennifer Clary: Motion carries. Don MacArthur: And I’m happy to…maybe we ought to do these in order, if other people have other things in the middle here, the next thing I have is .60, I wanted to ask a question on. Anything…anybody before .60? Jonathan Haber: Can we go backwards? Don MacArthur: Please, I’m sorry, Jenn. Jonathan Haber: I just wanted to ask why the cluster development definition was removed? Laval Means: I think that Kirk had some concern over really striking, you know, a two-sentence description of cluster and knowing that there’s a whole section that’s in place for addressing and describing what we mean by cluster and conservation, so he just takes that to the source, to the standards and to that section, rather than trying to capture in its most general way what we mean ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 25 of 54 by cluster here. And that’s been his approach, so that’s why I’m saying I think that’s where it was. We asked him that, too, and because you carry it and it’s dealing with the things in that section in the Article 3, he felt that was the place to have the description as well as the standards, rather than a definition here. Jonathan Haber: Okay. I understand. I just…a technical point is I think the term is used outside of that other section, in which case it’s usually better to have a definition. Laval Means: With…yeah. Jonathan Haber: And then what number are we up to otherwise. Don MacArthur: I was suggesting… Jennifer Clary: We just passed .49… Don MacArthur: .60… Jennifer Clary: …so anything between .49 and .60. Jonathan Haber: I’m interested in .60, but I’ll let Don talk about it, first. Jennifer Clary: What’s that? Okay, go ahead. John DiBari: So maybe this gets back to some of the things we were discussing just a minute ago, but .22 deals with construction and I’m just wondering whether that covers construction, you know, when I think of construction I think of building something and there’s also demolition of what might be on the site as well, and, I mean, what do we really want to try to accomplish with that definition of construction and does it really…I know you were talking earlier about referring back to Article 1. Is that really the reference that we’re making here or do we need to tighten this up at all? Jennifer Clary: Well, there’s a couple. I mean there’s construction and then there’s development that kind of covers. John DiBari: Is there a definition of development? Jennifer Clary: Yes, .30, and that’s that human made change kind of along the lines of what we were just talking about, too. John DiBari: Yeah, maybe it was just semantic, for me, that construction didn’t really do anything about construction, just was talking about moving a bulldozing, essentially, which is more like destruction. Anybody else thought about this or is this sort of a non-issue or is it covered somewhere else, because I’m happy to move on. Jennifer Clary: Well it’s saying motorized and non-motorized vehicles where the site for a building, structure, or landscaping. I feel like it’s okay. John DiBari: So it’s really about building a travel-way, that’s what it seems to be, or a site for a building or a structure, which I would assume you’d have to do before you actually build something, right? So maybe it’s a moot point, I’m just searching here, to make sure we’re covering ourselves. So if everyone’s happy, we’ll move on. Jennifer Clary: Yeah. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 26 of 54 Don MacArthur: I think that “or” statement in there…it sounds to me like it’s any grading, excavating, cutting, filling of material or other disturbance that results in a travel way or, you know, the site for a building, structure, or landscaping. I think it depends how you read that a little bit. You know, one way you can read it is it’s about either making a roadway or a building or associated things; the other way is it’s any construction activity, including excavating or cutting. And I guess I prefer the former or the latter, that it ought to…you know, you shouldn’t be able to strip all the soil off a site… John DiBari: Right. Don MacArthur: …and not call that construction. John DiBari: In some where in here there’s definitions of and and or, can you point to me where those are so we make sure that or is the right or in this case? Laval Means: I think that’s in the beginning of [inaudible, off microphone] Jonathan Haber: Top of page 2-2. John DiBari: Top of 2? Jennifer Clary: It’s 2-1 and under conjunctions. A is and, B is or… John DiBari: So it says it applies singularly or in combination, and what we’d want to do here would be apply it in combination, correct? So it would be the Boolean or. I think we’re good there, then. Jonathan Haber: I thought there were too many ors in that sentence, I had to read it many times. John DiBari: And…all right, I think we’re up to .60, my other questions are after that, I guess. Jennifer Clary: Okay, we’ll take up .60, then. Don MacArthur: So my question with .60 was back to the…it seems like we are revisiting this question of parcel and lot, again, and I guess I wondered if there was a way to clear…make this more clear how we used parcel in Title 20 and how that it is different from lot in this subdivision regulation. Although there could be a reader’s note or something like that that clarified this, because I think lot is a legal definition in a subdivision, so therefore we need to use it, but in cases in the zoning regulation it was…there are pre-existing lots from subdivisions that are not parcels. And so how do we get across here that, you know, any newly-divided, or subdivided lot is going to be a parcel whereas some old lots are not parcels? Jennifer Clary: Laval. Laval Means: I would suggest the idea of a commentary that writes some kind of transition to zoning and I can ask Kirk to do that. I get what your concern and concept is and if that’s okay with you, without us having to craft the exact sentence, I’ve got the idea. Don MacArthur: And I think it comes up in a number of places through the document, so, you know, it may need to be re…that note or similar note may need to be also put under .76 for parcel, because…so I don’t think we need a motion for that. Jennifer Clary: Nope. Don MacArthur: Do we? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 27 of 54 Jennifer Clary: No, Laval’s going to take care of that. I guess. Anyone have any other past .60? John? John DiBari: I don’t know…these, I guess, might be kind of picky, I’m not sure. But .79, it says consisting of…so a land development project consisting of residential clusters…do we need a definition of residential clusters? Do we want to refer that back to the definition of cluster development that got stricken. If we put that back in, can that suffice? Don MacArthur: Did that section get struck in the same logic of the cluster development being struck? I mean, Planned Unit Developments have a… John DiBari: It’s possible. It’s sort of amb…you know, again, it’s kind of picky, but it’s sort of ambiguous. Maybe if it said cluster development there instead of residential clusters or whatever the language is in the cluster section. Don MacArthur: This is housekeeping and I don’t think it… John DiBari: Yeah, you want to just move through this? Don MacArthur: I think we…it doesn’t really…it’s not a policy question, here. John DiBari: Okay, I’ll just move through it. Don MacArthur: I mean, I think it would be good to ask Kirk about it, see if he thinks it could be cleaned up, but… John DiBari: Yeah, well Jon had just brought up the point of the striking the cluster development definition and this might just be a reason to put it back in, or take this…or change this to match it somewhere else, that’s all. Laval Means: I’ll check with Kirk on that term and then the consistency for cluster and ask him again about the…whether there’s a…about the notion of a definition of cluster, but we can take a look at that PUD, again, just for consistency. John DiBari: Do you want to take a crack at the riparian definition? Don MacArthur: I mean this comes back to the issue of time, doesn’t it? When? Laval Means: Of time? Don MacArthur: We’re on Riparian Resource Area, .96 and Mr. Neilson’s…Jon, do you have one before that? Jonathan Haber: Yeah, it’s housekeeping back on .60, but since we’re already keeping that house, I found the…another comment…another section that’s related to that where it says each lot must contain a satisfactory building site and that’s in 3.030.1 and I just thought if we’re cleaning up the definition of lot, if that’s a true statement, it would be helpful to have it in the definition. Did you get that reference? Laval Means: No. Jonathan Haber: It’s on Page 3-19. Okay. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 28 of 54 Don MacArthur: So you’re suggesting .60 have that statement in it that it… Jonathan Haber: Yes. Don MacArthur: …but the problem is is that a zoning lot may not have a build able site in it. Jonathan Haber: I figured that was part of what they’re cleaning up but we are making that statement that it has a building site. Don MacArthur: It’s only cleaning up if we have a commentary to say there are existing lots that may not have a build able lot and that’s further spelled out in the commentary. I think. Jonathan Haber: So are you saying this is more than commentary? Don MacArthur: No. I think it was a good…I think it’s a good thing to add for the definition in the subdivision regulations, but I think that the reader’s note needs to say that there are lots that pre- exist this that may not have a build able… Jonathan Haber: Okay. Yeah, this doesn’t change that. Don MacArthur: No, it doesn’t change the pre-existing ones, only ones created by subdivision from here on out. Laval Means: So can I just back up on this description of lot here under lots and block in Article 3? I…it might…it sounds like you’re suggesting that this statement should be part of the definition. Jonathan Haber: Yes. Laval Means: And I might ask that of Kirk in…because I kind of read it as further description of lot, but the definition of lot in Article 2 is, you know, the physical bounds of it. And then this piece fills in the description of it. It has to have a satisfactory building site, information about where you can’t build with the 25 percent etcetera. Don MacArthur: Is that even true about the building site? I mean, aren’t there lots that are created for purposes other than…other than a building? You know, you create an agricultural lot that has no building site on it. Jonathan Haber: Yeah, this is partly why I asked the question, because it might be that this is not technically a true statement here, in which case we’d need to clarify it. Jennifer Clary: Janet. Janet Rhoades: So, yes, my understanding of it is what Mr. MacArthur is saying…and Laval, this is a requirement for what a lot has to have, but it isn’t necessarily part of the definition of a lot because, as Mr. MacArthur says, there could have been lots that were created prior to this requirement being in the regulations, or there could be lots that were created outside of subdivision, like an agricultural lot or something like that. So there might be lots that don’t have that contiguous area, but they are still lots. So, my understanding of it would be that it’s a requirement that new lots have to meet, but it isn’t part of the definition of what a lot is. Jonathan Haber: That actually makes sense. Janet Rhoades: Good. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 29 of 54 Don MacArthur: But it seems like we’ve seen proposals of subdivisions that have lots that did not have a boilable area on them. So that’s the further part of the question that I…because this definition says you have to have a build able area on it, and I’m not sure that’s true. Laval Means: I’m going to… Don MacArthur: If it’s a residential lot, it does, but there are other…we’ve seen other definitions of lots. Jennifer Clary: Janet. Janet Rhoades: I think it would be safe to say for the purposes of subdivision review, each lot has to have a contiguous building area. Because one of the purposes of going through subdivision review is to make sure that you create lots that can be built on, so you don’t have a lot of lots that, for whatever reason, they’re too small, they’re too steep, whatever. Those are things we review for in subdivision, so there may be lots created in other ways that don’t have to meet this requirement, but for the purpose of subdivision review, that seems appropriate. Don MacArthur: So are all…it seems like Red Dog or some of these ones there were lots that were created that had no building right on them. Is that not true—anyone remember this? It seems like we’ve seen ones where there were proposals for…for one of the lots to have no building right, but it was still a lot. Tim Skufca: Wasn’t it for the purposes of a septic… Don MacArthur: The purpose of I think maybe doing a conservation easement on it, or some other purpose like that, that it would have value that could be…I don’t know. Jennifer Clary: That was not that long ago, I think, the conservation… John DiBari: I’ll check this out… Jennifer Clary: Go ahead, Tim. Tim Ibey: I do remember that, Don, it seems like at some point in time they took out the fact that there would be no more remainders and so it had to become a lot. I do believe it was a conservation easement that we saw, but it was a lot. It was considered a lot without a…I don’t know, considered without a building right, or… Jennifer Clary: Jon. Jonathan Haber: I was happy to call this housekeeping. Don MacArthur: I don’t think we can solve this here today, I think we can send it back to Kirk and Laval and Janet to look at it and make sure that there are no lots that…make sure that the definition that is culled out later actually does make sense and that there are no uses for lots other than for a residential…that permits a residential. I don’t think that’s true, from my recollection, but I’d like to hear them go through it or hear back on that. Jennifer Clary: Okay. So go on to .96, then, I think is where we were. Don MacArthur: So the question here that Mr. Neilson brought up, I think, is a question of time— you know, when is this riparian resource area, if it’s removed, then it doesn’t exist and then you don’t have to follow the standards. We sort of went through what the zoning protection is, didn’t ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 30 of 54 sound all that strong, and there are probably areas that have riparian resource that are not in zoned areas of the City. So even if the zoning were strong, it wouldn’t cover all eventualities and the only thing that makes sense is kind of back to this existing grade question of to figure out how to tie it into, you know, right now, how do we have a riparian resource inventory right now that establishes whether you have this land or not? Jennifer Clary: John. John DiBari: I was wondering if Peter might know this, our hydrologist left, but is there a way to define riparian resource looking at soils in addition to vegetation, or in lieu of vegetation? Peter Neilson: Peter Neilson, City-County Health Department. That’s a possibility, you could also look at flood-prone area. One idea that we thought of here that would be simple, perhaps, is to…the language says it’s a stream, wet meadow, woody draw, wetland, or other body of water or land containing any of the habitat or community types listed in Exhibit 5. How about saying “containing or that would support” that habitat. So if it’s been grazed, and doesn’t any longer contain that habitat, but it would clearly support it, then that should probably be a riparian resource area. I think in practice, the department has done a good job on case-by-case basis of making that part of a riparian buffer, and I think they’ve done a good job with that. But I think it makes it more laborious and difficult to do on a case-by-case basis and let’s just make it clearer. The best example that I guess that I could bring to your attention of the potential for plants to restore, if you give them a chance, is a few miles upstream here at Milltown Reservoir where they removed 25 feet of contaminated sediments 101 years after that dam was constructed and filled with sediments and when they did that last year and got down to the native soil, native plants started to emerge from seed that had been under those sediments for 25 years. So if it can happen there, you know, it’s going to happen anywhere that you give them a chance. There’s a seed bank out there, there’s natural recruitment, if you get the cows off the land, if you get the disturbance off the land, the plants can restore. So, again, I…that’s one suggestion I might make is that you look at saying land that contains the habitat but also would support the habitat. Jennifer Clary: We got cans all over. Don MacArthur: Devil’s advocate, while you’re up there, Mr. Neilson, does that…what happens if somebody removes all the soil. You know, they not only remove the vegetation, but they remove the soil that would support any future vegetation. Peter Neilson: You know, in riparian zones, there’s not a lot…often not a lot of soil. You know, a lot of the riparian areas that I’ve worked on, including the areas that we’re restoring up here, there is some soil, but it’s a fairly mineral soil, a lot sand and gravel that area, certainly up on habitats, there’s soil that can be removed and, you know, you can have a gravel mining operation that would totally operate…totally obliterate the area, then it could be pretty arguable whether or not it’s riparian or not. But I think that in most cases, the plants can recolonize. Don MacArthur: Pretty much just the presence of water that makes it potentially supporting riparian. So if the water is there, then it could recolonize it. Peter Neilson: Right. Don MacArthur: Okay. Peter Neilson: Correct. Jennifer Clary: Jackie. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 31 of 54 Jackie Corday: Hi. Jackie from Parks. In the six years that I’ve been commenting on subdivisions from the Parks Department perspective and we always look at riparian and how important it is. I’ve…I can think of at least three cases where I’ve…I usually always go out to the site and take a look at it because I’m…part of what I’m commenting on is how wide the buffer should be. And I’ve seen sites where they’ve been grazed really hard and there’s hardly any vegetation at all. And in those cases, it’s pretty actually easy to see where the vegetation would have been if the grazing is taken off and the plants will come back. And so what I’ve found in that case is that developers weren’t arguing that, oh, it’s not a riparian zone because the vegetation has been grazed down, what they instead, they argue for is that the buffer should be narrower, because oh, look, there’s no plants there, we don’t need much of a wide buffer because there’s not really anything to buffer. And so they don’t argue that it’s not riparian, they just argue generally that we don’t need as wide a buffer. So if you went with the language that Peter is suggesting, I think that’s really workable, because what it says is what Peter had suggested was it’s either there or it probably was there and now it’s not and if the conditions, like the grazing, were removed, the plants would come back. And usually aerial photos or just adjacent, if you look across to another property that hasn’t been grazed, you’ll see the riparian area. And that’s usually what I’ve done, is looked at aerial photos and, like, look how wide the riparian vegetation is over there where you don’t have grazing and that’s what I use as a reference for, okay, that means if you get the grazing off, it’ll come back and then you need that extra buffer to also protect it when it does come back. So I think that was a good suggestion that Peter made. Jennifer Clary: Thank you. Laval. Laval Means: In earlier public comment, you heard reference to how what we tried to do with our approach to the riparian regulations…riparian resource regulations was take it so far to clean up, to create consistency with the County, to address some of the vague language but now take it so much further that we’re starting to introduce new policy and new approach for…for Kirk’s side of things and for the project overall, we were already hearing pretty polarizing or, you know, different ideas on how to rewrite the definition and take another approach at addressing the riparian resources and we’re concerned about that being quite a derailment from the project and knew that there was interest from City Council members in opening…bringing it back up again and taking it on as a policy discussion and, you know, weighing everything. That’s where we started to draw a distinction between how much we thought we could bring and how much Kirk brought to you in this package and how much he was thinking might need to be the next discussion. I’m only cautioning you to that. If you don’t think that’s an issue, you know, or that you can take it on and it isn’t going to weigh on all the rest of this process or project, that’s your prerogative, but I just wanted you to know where we were kind of drawing some distinctions. And then I think Janet had something to comment on with regards to the recommended…or that will support language. Janet Rhoades: Only if you go in that direction. Laval Means: Okay. Jennifer Clary: Don, and then anybody else. Don MacArthur: So… we talked about the riparian, or we’ve been talking about it, I’m sure we’ll talk about it some more. We talked a little bit about agriculture. There are…it seems like when we were doing Title 20, we had a couple of other resource standards that we were talking about that weren’t fully fledged yet but probably should start having definitions being developed, that seems to be the sort of first step is to define what it actually is that the resource is. And the, you know, we talked a lot about the Rattlesnake Plan and there was a lot of information in there about biological resources and rare plants and animals and things like that within the urban Rattlesnake area and I wondered whether there shouldn’t be a definition that starts to define what that resource is, and…because I think we started to get at that when we talked about whether to include the ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 32 of 54 Rattlesnake overlay district into zoning or not, we kind of pushed it out into the question of this really should be a resource protection that maybe is more broadly applied across the City than just in the Rattlesnake. And it seems like it would be good to start defining what that…what it is that that sort of protection would want to protect. Jennifer Clary: John. John DiBari: I think we called those biologically-sensitive lands, is that the term we used in Title 20? Don MacArthur: That sounds right. John DiBari: That and agriculture and I don’t remember what the other ones were…Wildland Urban Interface, which I’ll bring up in a second. There were a few other, there might have been a few others, but I think that’s legitimate. Don MacArthur: So I guess I’d make a motion that we ask Kirk, in the spirit of dovetailing with Title 20 to create a definition for the…what did you say…the biologically-sensitive lands. It won’t be referenced anywhere yet, but it will be a definition. John DiBari: And maybe to go back and revisit those other items that we thought we’d make placeholders for, too, just so that we’re covering all those bases. Don MacArthur: Okay, so that was a motion and a friendly…I take that as a friendly amendment. John DiBari: I’ll second. Jennifer Clary: Seconded by John. Jon? Jonathan Haber: Are we done with the riparian area discussion, or is that part of this discussion? Jennifer Clary: It’s part of it. Don MacArthur: Well I was going back, because I think that is before…biologically is, you know, way back somewhere in 12 or something, and then I was going to make a motion on riparian after this. Jonathan Haber: Okay, so we can vote on this motion and come back to riparian, okay. Don MacArthur: Yeah Jennifer Clary: Any other comment on that? Tim just left, but… Don MacArthur: Mr. Hendrickson, did you want to make comment on that? I thought I saw a hand up in the audience. John Hendrickson: Would you be so kind as to repeat the motion, please? Don MacArthur: Okay, so the motion is that we’re directing…we’re requesting that Kirk provide a definition for the resource protection headings that were in Title 20. And as best as we can recall them, they were biologically-sensitive lands. There’s already one for agriculture, which is in here now; there’s one for riparian, which is in here; there’s hillside, which is in here; and there was maybe one other one. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 33 of 54 Jennifer Clary: Wildland… Don MacArthur: Wildland Urban Interface, which, I think is maybe in here. So, what we’re really requesting is to go back through those resource protection headings and make sure there’s a definition for each one. Jennifer Clary: Okay. We’ll have a voice vote. All in favor, say “aye.” [All Board members say “aye.”] All opposed? [Board members were silent.] Jennifer Clary: Motion carries. Don MacArthur: Okay, so back to .96, if I might, I would move that we change .96 to say stream, wet meadow, woody draw, wetland, or other body of water and land containing or that would support any of the habitat or community types listed in Exhibit 5 including the adjacent riparian buffer area.” Jennifer Clary: Jon. Jonathan Haber: I was going to, when you talked about the policy implications, I was thinking that it really shouldn’t be a major impact because the riparian resource areas are surrounded by riparian buffer areas and so the actual location of the riparian resource line may not be as critical and because the riparian…but I discovered that the riparian resource area and riparian buffer area seemed to circularly defined so that the resource area includes the buffer area and the buffer area starts at the edge of the resource area. And so doesn’t that…I don’t think it can do that. Don MacArthur: Well can we do it with the or that would support, doesn’t that take away the circularity? Jonathan Haber: Well it’s still defined the same way, that the buffer area includes the resource area and…okay. John DiBari: Second. Jennifer Clary: Okay, we have a second. Jonathan Haber: Maybe I’m just confused, I’ll let it go. Don MacArthur: So my logic was that we kind of heard from Jackie that it’s already being done this way. You know, the review is already occurring not only on areas that contain habitat but that would contain habitat. So we’re really just cleaning up how it’s already being done and being clear about it. Jennifer Clary: And we have a second by John. Carol. Carol Evans: Just to kind of clarify how this might affect policy, who is tasked with delineating the riparian areas because that can be kind of critical. Are you looking at a setback, are you looking at designated riparian areas through DEQ, Corps of Engineers, who is involved the actual delineation? Because if you’re just going by wetland plants and adding soils, for example, there are lots of variations from my experience that you could actually count as riparian areas that would take a good deal of restoration. Obviously, the plants are going to come back and, don’t get me wrong, I’m absolutely a proponent of increasing those areas, but I think that the decisions may be a little more complex and challenging if the areas are not clearly delineated and having some way to delineate those or having a source that you’re going to to delineate those areas is going to be ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 34 of 54 pretty critical. And if you don’t have them clearly delineated, the protests…I can just see the protests coming in from developers, property owners, all of that. So that’s my question. Jennifer Clary: Janet. Janet Rhoades: That dovetails perfectly with the comments that I was withholding earlier. If you say something like land containing or that would support any of the habitat, if you want to go that direction, you might consider adding something a little more specific in there and, not to put you on the spot, but maybe Jackie could help us with that. Something where the hydrology would support, where the soils would support, something that’s just a little more of a clear definition of what can support a riparian area and what we’re looking at. As Laval mentioned, you might want to look at this as a policy decision instead of this. One of the reasons why this might be more appropriate in a policy discussion is that it might be worth having a discussion about case law and how it might apply. I don’t know, you’ve probably heard buzzwords going around about nexus and proportionality, many of the streams in this area have historically been grazed so maybe the riparian vegetation used to be 50 feet or 100 feet wider than it is now, but through decades of grazing, it’s just been pushed back much closer to the stream. It might be ideal to restore that whole area, but it might not be considered appropriate in terms of nexus and proportionality, meaning that it might be considered legally that requiring a property owner to restore that much of a riparian area when it’s been grazed for so many decades by so many different property owners, it might seem like it’s an unfair requirement for them to have to restore the whole thing. Because it isn’t related specifically to the impacts. I don’t have all the answers to that today, but that’s something you might think about as to why this might be a better policy discussion, when we can analyze and you can analyze more of those other, bigger implications to making that change. So just something to keep in mind. Jennifer Clary: Thank you. Don. Don MacArthur: So I’m not inclined to change my motion. I think this is good way to start that bigger policy discussion and I don’t think that it actually changes what’s being done on the ground. So I kind of think we should vote and send it forward and they can take it up at City Council to see whether they wanted to strike this or go forward with it. Jennifer Clary: Jackie. Jackie Corday: I just wanted to address Carol’s question. Almost all the time FWP is reviewing and commenting. Once in awhile they get too far behind in a lot of other projects and they don’t get a letter in, but on almost every significant project they do and so they have an expert going out and looking at it as well, so. Ruth Link: Ruth Link, again, with the Missoula Organization of Realtors. This is something I think we would be diametrically opposed to. It’s just incredibly vague. I mean, if I build a garden in my backyard that has the right kind of soil, technically it might support that. And so now it needs a setback. It’s just…this is a policy discussion, if we’re going to have a full policy discussion, let’s have it, let’s not just add a huge swath of land without any study, without any legal analysis, without any sort of background besides…you know, we all want to save riparian areas, Missoula Organization of Realtors wants it just as much as anybody else; but we want it with the respect of the private property owner as well, and I think that this particular amendment is overlooking that. So, please do not vote for this one. Jennifer Clary: Thank you. John. John DiBari: I don’t know if we wanted to follow up on what Janet had said with requesting a little bit more specificity but we could put in bio-physical as a characteristic that would support…you ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 35 of 54 know, a bio-physical characteristics that would support if you want to go that route, or otherwise I’m happy just keeping it the way we have it. Does that help you with the clarification? Don MacArthur: And my thinking of not amending the motion was just that it seems from what Mr. Neilson says and that it…there are…it’s probably hard to argue exactly what it is and you kind of know it when you see it, and I guess I just wanted to leave it that way. John DiBari: I’m happy with going either way, I just thought I would add that as part of the discussion if we wanted to make a clarification. Jennifer Clary: John. John Hendrickson: Well I’m just going to start from what Mr. MacArthur just said that, you know, you know it when you see it, that, you know, like you said, that’s vague. Title 20 was enacted to spell out things definitely so there’s no room for interpretation. I think you’re leaving yourself open, or the City open, for interpretation there. Also, on the riparian, irrigation ditches are included and I don’t, you know… Don MacArthur: Where does it say that? I was actually looking because I heard the testimony from… John Hendrickson: Well, in prev…if you go back to other deliberations which you’ve had, irrigation ditches have always been considered as riparian in certain instances, okay. And the districts can come in and do what they want to those ditches and part of why MBIA would like for you to put this aside and do the whole riparian section in total rather than in piecemeal. It’s… Don MacArthur: I couldn’t find the ditch part… John Hendrickson: I don’t think of it…I’m sorry. Don MacArthur: I couldn’t find the ditch part in here as I was looking through because I was concerned. I mean, we did a number of projects where we had to cross ditches and most of the ditches are small ditches that have no…you know, have no riparian area next to them, but if it somewhere says in the definitions that any time you cross a ditch… John Hendrickson: Well I would like clarification on that, then, I’m sorry to interrupt you, but, as far as I can remember, in certain subdivisions where an irrigation ditch has traversed a subdivision, irrigation ditches have been considered riparian. So I would like that… Don MacArthur: It’s a good question, I think we should follow up on it, I think it’s important. John Hendrickson: Can I come back if… Don MacArthur: Sure. John Hendrickson: …as a follow up? Thank you. Jennifer Clary: Laval or Janet. Janet Rhoades: The reason you couldn’t find a specific reference to ditches is because there isn’t one. But with the riparian resource area being defined by the vegetation, there are ditches, especially the older, bigger ones, that have riparian vegetation on them. So if you think, for instance, the River Trail on the south side of the River between Orange and Higgins, there’s the ditch, there, a pretty big ditch, and has some riparian areas associated with it. So it’s not all ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 36 of 54 ditches, it is if there is riparian area along ditches, then that is counted as riparian area. Many of the ditches that go through town, especially in the more developed areas, don’t have any riparian areas on them, and so they wouldn’t be subject to it as written. Something you might want to consider is whether they would be subject to it if it were for a potential habitat as well, and that would be a different discussion. But as presented here, it only applies to riparian along ditches and not all ditches, even without riparian areas. Don MacArthur: So would it support riparian? If there’s a ditch there, would it support a riparian area? You know, did we just change it so it did, assuming we voted in favor, did we just change it so that it would include all ditches? Jennifer Clary: Because we said body of water? Don MacArthur: Mr. Neilson or Ms. Corday, did you want to comment on that? No. Jennifer Clary: No? Wait, yes. Hang on. Jackie Corday: When I have been thinking about the examples that I’ve been involved in where they have been grazed, they were significant, they were not ditches, they were significant side channels, is what they had been, to the Clark Fork River. And another one was just a really small creek…no, it was…there was the southern part of Grant Creek. So, but it is a good point. I mean, if a ditch has no riparian vegetation and it hasn’t ever because it’s small, I just don’t think it would be arguable that because it’s possible…somebody could come along and plant a willow that it could support it and therefore it should be counted a riparian. But I do think that that’s an issue that you guys probably need to discuss through to the next…April 20th and maybe what we can do, since I know this is going to continue on to April 20th, Peter and I can maybe talk about it some more; Laval, Janet, you can talk about it some more and maybe we could come up with some language that would address your concern, John, because I do think that’s a good point. Jennifer Clary: I’m going to provide my two cents, too, with this. I’ve been involved in three projects near ditches, small ditches, and none of them have required a riparian management plan or…just basically a typical setback talking to the ditch folks where they’ve said, please stay ten feet off of our…the edge of our ditch or something like that. So, that’s my two cents, there. Go ahead, John. John Hendrickson: And I understand that and I appreciate that, but Title 20 was enacted or a part of the reason why we did Title 20 was to have clear language, okay? This is not clear language, it’s vague, it’s open for interpretation for whoever, front desk, or whoever in charge or so on and so forth. And like I said, I think it needs to be clarified. It doesn’t have to be decided tonight, it could be done on the 20th, or in May, or in June. I don’t think it’s a time-sensitive issue. You know, on behalf of MBIA, we’re in favor of protecting riparian areas, I think everybody is, but when you include irrigation ditches, depending obviously what they are, so on and so forth, I think you’re opening the door. And I would just like more consideration given to that. Jennifer Clary: Thank you. Don MacArthur: All right, so how about for the purposes of this hearing that I withdraw the motion on .96 and we kind of continue that to the next meeting to give people a chance to write better language and the better language may be, you know, considers the question of ditches more fully and either, you know, spells out or maybe we’ll just get to the point where we agree, okay, we’ll just, you know, pass this along as it is and deal with this later if it gets to be too big. But let’s keep moving. Jennifer Clary: Okay. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 37 of 54 Don MacArthur: So I’ll withdraw it, if my seconder agrees. John DiBari: You bet, let’s come back to it. Jennifer Clary: Okay. Jon. Jonathan Haber: I just want to say that I don’t think that I was confused. If you look at this definition, and this is the old language so it’s been there a while, but the buffer area cannot start at the edge of the resource area if it’s included in the resource area, it just doesn’t work. You might take a look at that. Don MacArthur: So the point is in .96 that the words including the adjacent, it used to be and an adjacent, which didn’t include it within. So you’re saying the old language was better? Laval Means: Maybe that’s…we can come back to that one on the 20th, also, but it sounds like a motion to go back to the old language. Jonathan Haber: If you think it’s… Jennifer Clary: What’s that? John DiBari: Do we want to make it a motion to come back to this or do we want to just do it on your honor system. Don MacArthur: Honor system. But I like what you said, Jon, that makes good sense to me that this resource area does not include the buffer area, the buffer area is to protect the resource. So, it’s not included within. John DiBari: I think when you read it later on, though, it makes, if you start tinkering with it, it changes how the stuff later on is written. Jonathan Haber: It does. I assume it was done for a reason, but it doesn’t quite work this way, so whatever that reason was, maybe we need to approach it a different way. Laval Means: And I think that the intent is that it’s a…like a subset, or a sub district inside of this whole overall thing called a riparian resource area. Don MacArthur: So maybe there needs to be a riparian area, a riparian buffer area, and a riparian resource area that encompasses both. Isn’t that what it is? There’s the actual resource, which is the riparian area; then there’s the buffer; and then there’s the resource area which includes both the buffer and the resource. Jennifer Clary: Janet. Janet Rhoades: Perhaps the simplest fix might be to change the riparian buffer area definition to say an area of varying width extending from the edge of an area of riparian vegetation, instead of the edge of a delineated riparian resource area, because it’s essentially what many of us are thinking of the riparian resource area is where the vegetation is and then the buffer is the buffer. And then, if you wanted to include potential habitat or whatever, that could be in the buffer part of the riparian resource area. So it would be divided instead of riparian resource area, and riparian buffer area, it would the riparian vegetation and then the riparian buffer area. Does that seem to work for folks? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 38 of 54 Don MacArthur: Sounds like it works to me. Jon, does that get rid of the circularity. Jonathan Haber: Yeah. And that moves the problem from .96 to .95, right? Jennifer Clary: Tim. Tim Ibey: So using the vegetation, what happens when you’re in an area that’s like up Grant Creek or something where the vegetation goes on and on? I mean, it’s not just in the creek bottom, it goes right up the hillside. Jennifer Clary: Jackie. Jackie Corday: That’s a great question, Tim. The way that you can tell where the riparian vegetation ends and then just the hillside forest continues on up, is there’s a distinction in the plant community types. Plant community types that are dependent upon water are the ones that are listed in the index, and so that’s why it says you need to look for these plants, plant community types, in order to know what the riparian vegetation is. So as you travel up that hill, it’s going to change, it’s going to change to maybe just ponderosa or doug fir and other shrubs that don’t need the water, like the riparian ones do. And I just wanted to point out in the old…the regs that are current right now, the subdivision regs, it’s important to know that riparian resource is defined right now as both the resource, which really is the vegetation, plus the buffer width. And so it’s very important to make sure that in the end we keep this…them all protected the same—both the vegetarian…oh, vegetarian…the vegetation and the buffer as well. And…and I say that because when I started at OPG back in 2001, we were really kind of treating them differently, we were giving a little bit less protection to the buffer area than to the vegetation area. And then we realized, you know, when we really looked at this definition, both of them deserve the same amount of protection. And so if you change that, we just need to make sure that it’s consistent all the way through that whole chapter 13, that they’re receiving the same protection. Jennifer Clary: Jon. Jonathan Haber: Tim, let me…I’m not sure if this is the same question but my concern about this is that by including wildlife habitat in the list of the resources, there is really no limit to how far that could go, if that’s just talking about wildlife. It says development may have a negative impact on wildlife habitat. Well, that could go for a pretty long ways, so if the intent was that this somehow be…and then it says water quality and quantity, fish or other aquatic resources. If wildlife habitat is being limited to that which you could call an aquatic resource, that would make sense but just kind of standing by itself, it seems to say that this buffer zone could go on where ever the wildlife is. Don MacArthur: Can we…I think…could we move past this and let it…I think we’ve fleshed out more issues here and they ought to come back—Kirk, and Laval, and Janet ought to come back with another proposal for this definition and I’m not sure that that last one that Janet made makes sense to me now that I’ve heard those other comments. And it seems like maybe we need a better one, still. I did…one of my other sort of global comments was that the whole riparian chapter, there’s a lot of regulation in there and it’s…there’s very little definition other these two or three lines in this definition section. In fact, it very much avoids further clarifying the definition of riparian zone within the regulation. So this…I think that’s why we’re spending so much time here, is because there’s a lot of stuff that depends on this and it may be is a little too fuzzy and maybe we need a little bit more definition in order to nail it down. Or, you know, or we just have to go with know it when you see it routine which, frankly, I think a lot of zoning depends on and I’m not afraid of that. Jennifer Clary: Do you have anything you want to add? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 39 of 54 Janet Rhoades: I could respond to your question. One way that we could clarify that is to say where development may have a negative impact on riparian wildlife habitat. Because you’re right, wildlife habitat could be elk habitat or grey owl habitat or lynx habitat whereas this is specifically referring to the riparian wildlife habitat. So does that seem like that would clarify you’re concern? Jonathan Haber: If that’s the intent, that would fix it. Jennifer Clary: Okay. Moving on. John or Don. John DiBari: Do you one before 123? Don MacArthur: What are you…what number? Oh, 123, no, I don’t. Well, I sort of do. 98, part D, it’s an old definition of collector, and the only reason I had it starred is because in 3-5 it says local streets must be designed to discourage future use as a collector. So I went back and looked at the definition of a collector, and I don’t know if we ought to discourage having streets with two moving traffic lanes and two parking lanes. Seems like a…oh, I know that collector has more than that, that it means, but…does it have more than that? And I was just confused because it seems like it’s a new…it’s new language and I’m not sure what the point is and I don’t think that local streets should be purposely contorted to make them not work as a street that carries any traffic or…it sort of starts to define not gridding things, and we want to encourage gridding. I do, anyway, so I’m wondering what the point was there and we can take it up under 3-5, because I’m not…but it’s linked to this definition. John, why don’t you… John DiBari: 123, so I think without have a belabored discussion about Wildland Urban Interface, because I think a lot of the same issues that we brought up with this idea of it being a larger potentially policy-related issue, as riparian resource and maybe some of the others, but I do think we ought to revisit this definition of Wildland Urban Interface. I don’t know why we’re making up a definition when it’s already been defined in other places, like in the Federal Register and other sources from the federal government. So I would like, in the interim, to maybe take another crack at looking at the orig…you know, the already-existing definitions for Wildland Urban Interface that would do a better job of setting us up for when we do take this on as a policy discussion. You’re looking confused, Laval. I’m sorry, what can I do to clarify? Laval Means: We’ve gone back to the Fire Department a few times and asked them whether this is the definition that they think works and they also know that this boundary WUI, intermix WUI are defined in this way in other research documents and, you know, so it’s not…we’ve had it here for awhile, but it comes from something. The County ahs a different approach, but we’ve checked with the City Fire Department and this is what they feel is works. We only use this specific reference to a boundary and intermix in, like, one place in the standards. John DiBari: Yeah, I might… Laval Means: I was just going to say alternatively to writing a definition before we have a, like a full new project to address additional things about WUI, we could do the definition then, you know, rather than setting something up and rewriting a WUI definition now, we can do it when you…if we end up working on more WUI at another time, too. John DiBari: Yeah. I don’t know if anyone else is interested in this but, like I said, I totally trust the fire department looked at this and…but I don’t see, like I said before, any reason why you would have to have the fire department come up with the definition when one already exi…I mean, I don’t understand why we have to come up with new definitions for things that already have definitions. And I think it does have broader policy implications, even in this document, for how you would envision what the Wildland Urban Interface is. And so, in my personal opinion, here, is that we define it as it’s been defined by the US Department of Agriculture, as written in the Federal Register ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 40 of 54 and call it good and there’s no reason why you couldn’t keep the boundary and intermix, that there’s similar designations like that that have other…that have similar definitions to them. So I’m not saying you have to toss that thing out, but I would just like for us to take a better look and we could come back to it, we don’t have to hash it out right now. Jennifer Clary: Janet. Janet Rhoades: This is not a complete response, but I think that at least one or some of the National or state agencies define all of Missoula County as a Wildland Urban Interface area, which obviously isn’t very useful at the local level, so that may be one reason why we have more- localized definitions in there. I’m not sure of all the history, but… John DiBari: Yeah, well, you’re right, and I think this why it needs to be better defined. Jennifer Clary: Jon. Jonathan Haber: I’m trying hard to remember our discussion of this when we talked about the maps and how that wasn’t the answer we wanted, either, which I think is what you get when you go to the federal definition. So I agree it could use further discussion and one other piece of that discussion is on the next page where it says, at the bottom of the page, the fire chief must determine whether or not the proposed subdivision is within the WUI, which may be a third definition. John DiBari: Well I did look…you know, this is something that I do, so I do have resources available and I’ll give you this stuff and I think we do need to address this and maybe this is where we, you know, just a few minutes ago we asked for definitions that apply to those things that we put in Title 20, and this is perhaps one of those things where we go back to and we take a better look and, I don’t know, do we want to have Brooks Street be in the Urban Wildland Interface? Well, under some definitions it is. We need to decide whether we want that to be our definition and we need to define it in such a way so that it makes sense for whatever our community is. Jennifer Clary: John. John Hendrickson: Hey, John, can you make those or the Committee make those…this paper you’re handing out available to us, please? Thank you. Jennifer Clary: So, do you want to take that one up, pass that out and then we’ll take that up at the next meeting then. Have them review it… John DiBari: Sure. Yeah, I mean, that was the intent is that we don’t hash it out now but we take the two weeks and come up with something that…you know, if this is my…if I’m the only one on the crusade, here, then we don’t have to do anything. But if I think…if it’s something that we want to have as a functional definition in our subdivision ordinance, which, clearly we have issues, we’ve had them when we did Seeley Lake, and we’ll have them again. I know Seeley Lake isn’t in the City, but there are places like where Laval lives and other places in the City where this potentially is an issue. Jennifer Clary: Okay. Any other .124, 5, 6, or 7 to finish out 2 temporarily? Nothing? Okay. So, it’s a quarter to ten, and we’re going to obviously continue this and I wasn’t sure when I’m looking at 3 and how thick 3 is, do we want to start in on 3 or is there…you know, to skip around. I mean if we’re sticking with Item No. 1, then we would deal with 3 and 5. Do we want to go to 5? Do you just want to just start in on 3, what’s the consensus? Okay. Okay. Tim Ibey: How come the air conditioning is working so well? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 41 of 54 Jennifer Clary: It’s cold when it’s hot and then it’s…hot when it’s hot and cold when it’s cold. So, under Article 5, do you want to just go through each page? Don MacArthur: Article 3 or Article 5? Jennifer Clary: What did I just say? Article 3, I mean. Oops, Article 3, start at Page 1. Don MacArthur: So my own review here, I did not look at this as a rewrite of the subdivision regulations, I wrote it…I looked it as the…I mean, I basically looked at the things that were in the underline. There are a lot of things that don’t…aren’t perfect right now, but they’re kind of working and that isn’t the…my intent or my understanding of the intent of this rewrite, so, you know, in that vein, Article 3, 20, section J, the local streets thing that I just said, I see that that has an editor’s note saying that that was actually moved from a local street definition somewhere. So it was already existing and…okay, just go forward. So if I might take the next piece, I can’t quite let it go that easily. There’s a…on Page 3-9, there’s a chart in there about what local and collector streets are, it says one Jon Haber’s favorite things: it has collector streets, and then it says local streets over 200 dwelling units. So is that a collector or is it local? Laval. Laval Means: This is a place where we see that there is additional clean up that should occur and…but starting to dive into the dwelling unit, taking that out, giving us a better reference point to what is local and it kind of goes to what is our definition of collector, what is a major route, how does it relate to our functional classifications for road systems, how does it coordinate with the other agencies. It becomes a really big project. And we just backed away and could not take it on. Because once you start to look at can we just move some things around here? You start to…or take out a term like the dwelling unit, you start to really dive into a lot of other things. So we looked at it and felt it should wait for an add…a separate project that is just on the road standards, and that kind of pertains to some of the stuff that…the comments that you got from the fire department, too. You know, a wish for wider roads, a new look at our road standard widths, all of those are just weaved together and appear to becoming a really big project. Don MacArthur: So the scoping of that project from where I sit is that the collector definition that I think…is that a new? I guess that’s an old definition doesn’t agree with what it actually means in here. That’s one part of it. Number two is that the collector streets in here actually references local streets as one of the kinds of collector streets, which is a bad problem and it probably could be solved easily by just saying, streets serving over 200 dwelling units. And, you know, it feels like, without getting into all the dwelling unit things, we could clean it up a little bit. And maybe I’m totally off base, but it seems like it could just say, a collector streets serves over 200 dwelling units or any commercial industrial uses. Boom. That’s the definition, that’s what it says in here. Laval Means: [inaudible, not using microphone] Don MacArthur: No, I got rid of the local street, I just said a street serving over 200 dwelling units, because it’s not. It either serves more than 200 dwelling units or it serves commercial industrial uses. Laval Means: [inaudible, not using microphone] Don MacArthur: I see where the problem is, though, because I was…I circled through that comma and didn’t get the…yeah, okay, I don’t know what a collector street is, I guess, I thought a collector street was something that was 200 dwelling units or more or serving commercial industrial, but I guess it’s something else that has four lanes. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 42 of 54 Laval Means: I think that I might be talking for projects, here, but I think they do also defer to functional classification and, you know, get direction from Engineering on it, in the meantime, and that meantime has been a long time using this dwelling unit reference and collector and local the way it is. But it’s how they’ve doing it, and like I said, it would be great to have it as a project in the future to clean this up. Don MacArthur: All right, I think I’m letting it go. John DiBari: Can I just ask a general question? So when are we coming back to this? I mean, when do we take this on as…I have other specific questions, but, I mean, do we just…you sort of opened the door, there. Laval Means: Well, we need to close out this contract with the consultant we have on the general update, here. We’re constantly coming in with reg revisions on either the zoning front or the subdivision front and items can be proposed as things that we need to take on in our work plan, or through the City Council in specific referrals. So those are both the ways to come back. John DiBari: So is this in your five-year work plan, or…? Laval Means: I can’t respond to that, because I’m not sure there is a five-year work plan. John DiBari: All right. Well, it would be good if you could come back with some kind of timeframe, that would be helpful so we all know how long we’re living with the things we’re not fixing. Laval Means: That might be something to consider at the end of this review, if there’s other things that come up, too. But I know there’s been interest from Projects Staff as well, so we’ll see. John DiBari: Can I ask a question. Jennifer Clary: Yes. John DiBari: On Section 3-030, No. 2, where it talks about blocks. I seem to remember that we’ve had discussion somewhere about how long blocks can be before there’s a break or something, but there’s in the definition of block, and…which hasn’t changed, and it doesn’t look like anything here has changed here. But there’s no mention for how long a block can be. Don MacArthur: Can you give a page reference, too. Jennifer Clary: 3-19. John DiBari: Oh, there it is, 480 feet, sorry. Don MacArthur: 3-19? John DiBari: Did I just answer my own question? Okay. Jennifer Clary: 480 feet? John DiBari: Sorry about that. Jonathan Haber: I’d like to go back to 3-14. John DiBari: Pardon? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 43 of 54 Jonathan Haber: Page 3-14, if we’re done with that topic. I just have a sort of an understanding question and I’m keying off the language at the bottom of the page on No. 2, it’s been added about…brought this boulevard-width stuff under variance procedures, whereas I noticed back on page 3-11, for example, there’s a bunch of street width stuff that can be changed by the City Engineering. And is there sort of some overriding principles here about what gets dealt with how, or is it just tradition of some sort? Jennifer Clary: Janet. Janet Rhoades: That was actually one of the purposes adding where it says “if approved in accordance with the variance procedures.” That’s what you’re talking about, right? Jonathan Haber: Um-hum. Janet Rhoades: That used to say probably…it was some kind of unless or except, which we’ve talked about a little bit, I think, with the riparian area where…it was something that was always kind of confusing to everybody in regulations. There was a lot of this is the regulation, except for this or unless that. So it was always confusing us, well is that something that staff should make a decision on whether it meets that or is that something that should go to Council to decide whether it meets that. And, really, the only way to get it to Council was to process it as a variance. And so, I believe this language has been added to make it clear that you might be able to get a narrower boulevard, especially if you have one of these things, but you have to request a variance so the Council can evaluate whether or not they want to grant the narrower boulevard. Jonathan Haber: So then my question is why for street widths…(I’m off, aren’t I?)…street widths, that doesn’t require a variance. It just says exceptions to these with the approval of the City Engineer or something like that. Janet Rhoades: I have to think about that one. Jonathan Haber: Is there any reason to think that these things would all sort of be addressed the same way or is it just sort of the way they’ve evolved over time? Janet Rhoades: It may be the way they’ve evolved over time. City Engineering is generally more concerned about road widths than they are about boulevard widths. Boulevard widths tend to be something planners focus on more. So that could have just been different people were talking about it at different times. But generally variables that affect width is…we get recommendations from the City Engineering office on what width they want based on the standard widths and the variables that affect it. I guess I really have a really a [not understandable, laughing while talking], sorry. Jonathan Haber: Okay, well, if they care about…they don’t care about boulevard widths, well, then I guess that makes sense. Laval Means: I think that…if I might add that this is…these are the components that make up the overall width. So, it’s saying that there can be some exceptions to those components, but the overall width is treated in a different way. It’s treated in either a range or a requirement that it be this particular width, and if it’s not, then it needs to go through as a variance. So for the components, there’s this flexibility, not the boulevard. John DiBari: Can I come back to my block question? And we don’t have to belabor this because it’s not stricken out or added in, but that only applied to one kind of subdivision, it didn’t apply to ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 44 of 54 rural subdivisions, so if you wanted to do something that applied to rural subdivisions, you’d have to add it, so just…for what it’s worth. Jennifer Clary: Don. Don MacArthur: Do you want to keep on that topic. I was back to the non-motorized facilities that Jon brought up and I was thinking about the comment that Mr. Neilson made about how he thought that the non-motorized facilities section ought to be beefed up. And I was trying to think back in what ways have the subdivisions we’ve seen failed in providing or, you know, being designed to respond to non-motorized facilities and I think that in the provision of boulevards, sidewalks, and this sort of, you know, most of the nuts and bolts of what we think of as a non-motorized facilities, we do a pretty good job. The only place that is lacking, maybe, is in the sort of greater connectivity to the master plan of the community. And I see under section 8 it says, you know, on Page 3-15, in addition to the requirements for non-motorized facilities…then it references something that I don’t know what that means, then, you know, these facilities may be located beyond the street right-of- way or road easement and may consist of alternative materials to be consistent with the design of the subdivision and overall development plan and/or the Missoula Non-motorized Transportation Plan. I think this is the place maybe where it connects to that grander vision of non-motorized transportation for the community but I wondered if there might be some reference, also, to all the other planning documents that have been done that reference sort of the connectivity and non- motorized transportation, and I’m thinking of neighborhood plans in particular, that have often taken a very strong approach about their goals for non-motorized transportation. I’m thinking about the River Road Emma Dickinson Infrastructure Plan that was done a few years ago, Northside/Westside Plan, and it would be nice if there was some way to reference subdivision activity to all the planning activities that neighborhoods have made that try to define how people can move around in multi-modal ways. So this…I don’t think…I don’t think it’s really new policy breaking, it’s just referencing existing planning work and I guess the question is maybe it’s already in the Growth Policy and it’s sort of referenced by, you know…by overall the subdivision should be in compliance with the Growth Policy. Jennifer Clary: Janet. Janet Rhoades: Yes, the last thing you said is correct. Those plans apply whether the subdivision regulations specifically reference them or not. They are guiding documents, they’re not regulations, but they apply. And we do often include…OPG Transportation, especially, is very good about saying, you know, we support denial of this variance and then they’ll cite things from applicable plans. And often we will include those in our Findings of Fact for why we’re recommending a condition for a specific trail or for not narrowing down a sidewalk or whatever. So we do currently use those documents and include them in our findings and our recommended conditions. Don MacArthur: It was interesting how you framed that—you framed that as a way to…the developer is asking to get rid of requirements and I was sort of thinking about it the other way around about having…having some language in here that allowed you to ask for more in some circumstances than the minimum. So, you know, you were saying well, we can defend the minimum requirements here when somebody asks for a variance by using those plans, but sometimes there’s a plan or a trail connection that is…wouldn’t be required that should still be exacted. And I think the community actually does a pretty good job on this and I’m not…I’ll just leave it there. I was trying to respond to that comment about how this non-motorized could be beefed up and maybe it doesn’t need to be. Or it’s another project that we’re not addressing here. Jennifer Clary: John. John DiBari: My next point is on 3-24, so is there anything in between? So this deals with…oh, let’s see…I guess it’s 3-070 but it flips over back onto the next page, it backs out of that 3-24, ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 45 of 54 where it talks about water supply for fire protection being an either/or situation, and this just goes back to my concern about the Wildland Urban Interface, again. I’ll tell you what, I don’t…I don’t want to just have interior sprinklers in my house if there’s a wildland fire bearing down on me. It’s not going to do you any good at all. So I think that there needs to be some recognition that there needs to be some kind of outside water source available to defend structures from fire that’s coming from, say, Grant Creek to Rattlesnake Creek or vice versa or something like that. Jennifer Clary: Tim. Tim Ibey: Well I’ve got a little bit of experience in that in that my father and I looked into that. And unless you get into a pretty elaborate system of generators or whatnot, the first thing that happens in a wildland fire is they cut the power. So, I don’t know, it gets to be kind of a tough thing, unless you’ve got a water tower someplace or something. John DiBari: Yeah. I think this will be part of the broader discussion we have we get to rewriting the whole things, but this is not going to provide…you know, we’re talking about creating subdivisions somewhere in the City limits that provide for the health, safety and general welfare of the people that are going to live there, but these doc…this ordinance doesn’t get you there, right? There’s no way you can protect people from wildland fire in some instances and certainly if all they have is an interior sprinkler, that’s not going to get anything done. So I think this a part of the broader discussion, perhaps, but if we’re going to allow subdivisions to occur in places that are subject to fire from the Rattlesnake or anywhere else, then, or even like we had on Mount Sentinel, you know, all those places that were along the east side of the town, right along Mount Sentinel. You know, if there…there needs to be some means of suppressing those fires, perhaps, than interior sprinklers, if that’s…you know, that’s…because that’s the or statement, right? Either you can have a public water supply or interior sprinklers. Jennifer Clary: Laval, or Jerry, actually, Jerry. Jerry Petasek: Well I always thought the purpose of this was to prevent wildland fires, not to…our tax dollars pay for protecting people’s home in the Wildland Urban Interface, we put these in so that, hopefully, we can put their house out before it spreads into a Wildland Urban Interface. So that’s what I always thought these systems were for, not necessarily to put out fires coming in. Jennifer Clary: Laval. Laval Means: These are standards that work well for the fire department, the one that is stricken is because it’s not used in the City. And the well area would not meet the fire code requirement. And we have to remember that these are regs that are for areas that the City Fire Department is going to be accessing, and I think that they’re looking for holding off the fire through the fire sprinkler process, or the residential sprinkler process until the fire engine gets there and can help out. So it’s a…it’s a time period thing and these are standards that works for them. John DiBari: Sure, and I can understand what Jerry is saying. I mean, if you have a fire in your house, you don’t it to want to spread to the neighbor…or your neighbor doesn’t want it to spread to their house, certainly. But, I mean, the whole purpose of the subdivision regulations is potentially to be dividing up land that is at the Urban Wildland Interface but, right, I mean, we’re talking about potentially creating subdivisions in the places that are at risk from wildland fire, yet these regulations don’t do anything to help mitigate that risk. And so perhaps the solution is that we don’t subdivide at the Wildland Urban Interface because you can’t protect people from their own stupidity, perhaps, you know. So, these subdivision regulations fall short in that regard from creating situations that put people at risk and that’s why I think we need to take a better look at how we do subdivision at the Wildland Urban Interface. But if…the only reason why I bring this up is because, you know, there are strike-throughs and add-ins here, but none of what’s in this section ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 46 of 54 will help protect people from living at the Wildland Urban Interface, there’s no water to you know…maybe a city pumper can do a little bit for awhile, but…and maybe we shouldn’t be protecting those people to begin with. I don’t know. That’s a totally different question. But these regs don’t help us get to mitigating potential risk. Jennifer Clary: Janet. Janet Rhoades: Just some food for thought is my understanding of the regulations and things like fire code is it’s more about protecting public health and safety, it’s more about protecting the people than it is about the structures themselves. So, interior residential fire sprinklers, I think, are not so much intended to protect your home from a wildland fire as they are for if you drop a candle and your living room lights up, it will put it out or at least slow it down in time for you to get out of the house, get your kids, get your pets, whatever. It’s more, I think, about protecting human lives, public health and safety, than the structure. And that is compliant with the Uniform Fire Code as well, if that matters to anyone. Ruth Link: Ruth Link with MOR, just to piggyback on what Janet said, we’ve had several conversations with the fire department on this issue and it’s…it’s especially important in the WUI to have protection for the lives because the response time is a lot longer. And that’s why that’s kind of the either/or. So if we save the lives, we may lose the house, but…or whatever it may be, we may lose the house to wildfire but we save the lives in a case where it takes ten minutes instead of two minutes for the fire truck to get there. Jennifer Clary: Thank you. Did you have anything…Don? Don MacArthur: I just want to move on. Can we move on from the WUI? I mean I feel like we just keep going through the WUI again and again and it’s true every time and I don’t know how to get at it. So maybe if you can bring language about it, that can help break us free. Jennifer Clary: Jon. Jonathan Haber: This is a housekeeping comment, but I…you changed the municipal water system to public or community in A, and I noticed in subsequent sections there’s reference to one case in there’s just a public water supply system and then in .4 there’s multiple user water supply systems and those probably need to harmonized. Laval Means: I’ll check with the Health Department on that, thank you. Don MacArthur: I had a comment on 3-30, does anyone have something before that? Page 3-30. Jennifer Clary: Okay. Don MacArthur: Okay, I’m not hearing it, so I’m going forward. On the new stuff in the landscape buffer strips and screening. I’m confused about putting landscape buffers in subdivision requirements because they’re so ephemeral and I wonder if they shouldn’t really be in zoning somehow since that’s where all the other landscaping buffers and stuff are. And that then would be enforceable over time. Laval Means: What I could do is just provide you with just a little bit more background. We already had the standard for a required buffer strip. I think that the idea of a mobile home community, well, let me think. The buffer is for creating the edge around that parcel and there just wasn’t any filler, any description of…so if you have this buffer strip, what are you doing in it. And that was the intent by providing some additional detail, the landscape buffer strip. And then once that occurred, we needed to provide some information about…now that we’re saying it’s supposed to landscaped if ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 47 of 54 it’s a buffer, what kind of standards would you have as the landscaping goes. And these are the same standards that are found in buffering requirements in the zoning. So he pulled from that to use that here. So that’s the background on looking at this. Somebody made a comment about you have a buffer here, but it doesn’t really tell us what happens in it, and that’s where we went. Don MacArthur: I understand that. I think it’s weird to have something that is…I mean, somebody could come and dig up all those shrubs and move it to the next mobile home park after they got final plat and it would be all legal. So that doesn’t make any sense. The point is to have the buffer there and the buffer needs the zoning in order to actually make it enforceable over time. Isn’t that true? I’m…I’ll just leave it there, I think it should…you should consider it and see whether it ought to get moved into future, you know, use…mobile home use within the zoning Title 20 when we update that and maybe just leave it the way it was and then define it within zoning in a future rewrite or a future update. Jennifer Clary: Janet. Janet Rhoades: There is a submittal requirement that would definitely be required for mobile homes. It’s on page 5-9, landscaping and maintenance plans for common areas, parkland, and landscape buffer strips and screening as may be required. And that does say landscaping and maintenance. So you’re saying that there would be no way to enforce it afterwards, they’d have a landscaping and maintenance plan that would have to talk about how they’re going to maintain the landscaping, so if all the plants die, or somebody digs them up and moves them, that, I think, would give the City an avenue for enforcement in that. Don MacArthur: It’s just bad language and it’s in the wrong place. I think this should be zoning and it shouldn’t be…here we are writing new language that should be in zoning and putting it in subdivision. We’re trying to clean things up, not mess them up. Jennifer Clary: Jon. Jonathan Haber: I guess, from my own education, that surprises me. I thought the subdivision regulations applied at the time of subdivision approval and didn’t really do anything after that, in terms of enforcing maintenance responsibilities. Am I mistaken on that? Laval Means: Excuse me, we have maintenance plans in as few situations that do…but they are few…that do live on beyond the subdivision, like the riparian management plan. Jonathan Haber: I understand that we would have the plans as a condition of approving the subdivision, but in terms of enforcing the plans, is there any continuing authority to do that. Janet Rhoades: That’s a good point. I may have spoken too soon. Laval’s right, we have talked about that with the riparian management plans, about enforcement. I’m not sure that we’ve ever put provisions in the landscaping plans that it can enforced. But I think that Don’s point is a good one, so maybe we should just go back to that of maybe landscaping would be more appropriate to have those requirements in zoning instead of subdivision. So I think maybe that’s just something that we could take back and look at and bring back some more information on April 20th? Does that work? Laval Means: Or a motion to strike it out [inaudible, off microphone] Jonathan Haber: The word maintenance shows up in quite a few places in here, if we’re going to do that, you might want to do a search for that and see where else it pops up and what that might mean. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 48 of 54 Janet Rhoades: And if it makes anyone feel any better, we hardly ever get mobile home parks that come in, I don’t think that there’s been one come in since I’ve been here. So, it seems like one way or another, it’s not a big issue to strike or leave in. Jonathan Haber: Right, but other places that it says there’s an obligation to maintain something or not, just in the mobile home park section… Jennifer Clary: Do we have a motion? Don MacArthur: All right, so I’ll make a motion that we…now I’ve lost it. I make a motion that we take on page 3-30, item that we return it to .7 a, that we return to its original language and that .7b 1 and 2 are deleted and that, you know, the next time that…that it can be brought forward as part of a…of a update to zoning regulation that those get included in an update to the zoning. Tim Skufca: I’ll second that. Jennifer Clary: Seconded by Tim. Any further discussion? Voice vote: All in favor, say “aye.” [All Board members say “aye.”] Any opposed? [All Board members are silent.] Jennifer Clary: Motion carries. Don MacArthur: I’m on 3-34, Planned Unit Development. This is back to whoever brought up the definition of PUD, I don’t think that it actually matches very well with the current intent and definition as it’s been revised. I still think it might be a good idea to just strike the definition of PUD and use this as the definition of PUD within the language. So I’ll make that motion. That we take out of Chapter 2… Tim Ibey: Second. Jennifer Clary: Seconded by Tim. Don MacArthur: …we strike that definition. Jerry Petasek: You want to strike the definition of PUD from Chapter 2 and… Don MacArthur: From Chapter 2, because it doesn’t really agree with what it says the purpose is and what the four categories are that are listed here, it talks about shopping centers and I don’t see anything about shopping centers in here, or clusters, which are now a different things. I mean, it has goals here that it spells out what the goals are which are, enhance protection of natural resource, traditional urban development patterns, mixed use development or affordable housing. Jennifer Clary: So in your motion you said strike .79, then, in Article 2, page 2-11. Don MacArthur: Yeah. I think that’s right. I don’t know the number. Yes. And I’d be fine with rewriting it so that it matched what we now say, but I think it’s easier just to strike it. Jennifer Clary: Tim is that a friendly amendment or just a clarification anyway. Tim Ibey: Yes. Jennifer Clary: Any further discussion on that? Jon. Jonathan Haber: I guess I’ll ask the question, the way the definition is written on 3-34, it makes it sound like we’re trying hard to discourage them and so for that reason I would tend to prefer the ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 49 of 54 other definition—you can only do it if it’s impossible to carry it out under otherwise applicable subdivisions. And impossible is a fairly high bar. And then I tried to work through the three cases…four cases below and what that might really mean it was kind of hard to do. So, I was just questioning whether that’s appropriate language to have in the introduction, there. Don MacArthur: So the way…I’ve done a couple of PUDs in the City and the way that we’ve used them is when we’re looking for increased density that’s not allowable by the underlying zoning or we’re looking to do…we did a project where the zoning actually was acceptable but the setbacks that, you know, we wanted to match the setbacks of neighboring buildings and that was not permissible by the current zoning, so we had to get a PUD overlay to allow us to match the underlying urban patterns. So, you know, this…there’s a lot of reasons why these get used, they don’t get used very often. As far as I know, I probably done half of the ones that have been done in the last ten years. Jonathan Haber: And does it make sense that we should only do those in those situations or we should we be free to use them whenever it seems appropriate? I mean, it’s basically coming across as a tool of last resort. Jennifer Clary: Tim. Tim Skufca: Well yeah, the stricken definition is saying exactly what you’re…how it’s been used, a creative use, that doesn’t fit the current…so I don’t see what’s wrong with the existing… Jennifer Clary: Are you talking about what’s underneath it, then. Tim Skufca: What’s under…what’s stricken under purpose. Don MacArthur: So bringing back the first sentence, which says the intent of this section is to provide flexibility in certain subdivision standards allowing the subdivider creativity in subdivision design, period. Tim Skufca: Yes. Don MacArthur: How about if we…I’ll make the motion that we bring that sentence back as the first statement under purpose and then I’m not sure that any of the rest of it needs to be taken away. I mean, it is true that the reason for doing it is because the underlying zoning probably doesn’t allow it—what you’re trying to do. Jonathan Haber: Okay. I’ll defer to experience on this one, I’m just surprised. Jennifer Clary: Did you…is that a friendly amendment? The intent of this section be incorporated in this first sentence? Tim Ibey: Yeah. Jennifer Clary: And everything else is stricken past design? Don MacArthur: Just past that design, that we’d add the new sentence at the beginning of purpose, which says the intent of this section is to provide flexibility in certain subdivision standards, allowing the subdivider creativity in subdivision design, period. It doesn’t talk about the rest of the stuff, because that’s sort of covered under a, b, and c and d. Jennifer Clary: So the PUD Planned Unit Development regulations of this section are intended to…that would not be in there? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 50 of 54 Don MacArthur: That would still be there. Jennifer Clary: Okay, that’s what I wanted to clarify. Janet, did you have anything. Janet Rhoades: I’m debating whether this just make it more confusing. Just something to keep in mind, there’s a difference between a subdivision PUD and a zoning PUD. So this doesn’t necessarily refer to I think most of the PUDs, at least that I tend to think of, are actually zoning PUDs where you kind of write your own little zoning district overlay. PUDs for subdivision are a little bit different, and I can’t think of a great example off the top of my head, partly because I, like Don said, we hardly ever get these. But it would be more like you wanted to change the design of your streets, or, you know, if you wanted to really change the design of something that’s in the subdivision regulations and not in the zoning code. So I think that this is, you know, these are all good points and the maybe the best thing would be to just…staff could go back and look at it and you guys can all go back and think about it and maybe bring it up at the next meeting. And we might consider just writing a new definition that sort of boils down some of these things. And Laval mentioned that it might be defined in state law, but we can’t find it off the top of our heads, so we can go and research that as well. Jennifer Clary: Laval Laval Means: Yeah. It’s a state law definition, that’s where the term came from, originally. And we’ve been asked to…by the City Attorney’s office to try to be…to use state law as much as possible where ever we can, so… Don MacArthur: So under the purpose, that’s state law. Laval Means: No. The definition of Planned Unit Development that says, “Land development project consisting of residential clusters, industrial park shopping centers, or office building parks that compose…etcetera.” That’s a state law definition. Don MacArthur: But we don’t actually have a PUD that encourages that. So does that mean we’re against state law? Laval Means: Well we have the mixed-use development for it, but… Don MacArthur: I don’t know. Jennifer Clary: I say we just let them review that, come back to us, so let’s just hold this one. Don MacArthur: Okay. I’ll withdraw whatever motions were on the floor. Jennifer Clary: And I’m getting really tired, I don’t know about everybody else. I’m just going to admit it. Don MacArthur: Jon’s not. Jennifer Clary: Jon’s not. Jonathan Haber: That’s because this relates to what we just talked about. I just wanted to ask what caused these changes to be made again. [Off microphone] beginning of the meeting, but I’ve forgotten. Laval Means: On the PUDs? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 51 of 54 Jonathan Haber: Yeah. Laval Means: Well I think when subdivision…it does come in as a PUD, it’s often with a zoning PUD, they go together, hardly ever by itself, I think. And the language in the Title 20 uses these four references as examples of PUD. Previous to that, in our existing regs, this PUD is heavily weighted towards the open space and doesn’t bring up any reference other reasons you would propose a PUD. So he was trying to create some consistency between the Title 20 and this. Jennifer Clary: Do you have something, Tim. Tim Skufca: Well I guess the same logic that they crossed out clusters in the definitions should be used here and just cross out PUD and cross out riparian, because it’s got whole sections discussing it. So the definition…I mean, I don’t see why it would happen in one place and not another, so carry that logic through. Laval Means: Yeah. And just to follow up, it might be better to just strike the definition from 2, than try to recraft it and be different... Tim Skufca: Yeah Laval Means: …than the state’s definition. And continue to go where we’re going with Article 3 with more refinement. Okay. Jennifer Clary: Don. Don MacArthur: Maybe one approach would be to have some kind of a reader’s note or something under 3-120 that says state law says PUDs are X, you know, that sort of references it back to what state law says and then, you know, what Missoula, the City of Missoula’s purpose with PUDs is the following or I don’t know. I think it fits into state law, it’s just it refines it, has a little bit different twist on it that adds different flavor to it. [Unidentified Speaker, off microphone]: Are you ready to quit? Jennifer Clary: Yes. Unanimous. [Unidentified Speaker, off microphone]: Move to adjourn. Jennifer Clary: Can we have a second? Tim Skufca: I second. Jennifer Clary: John apparently really wants to comment right now. John Hendrickson: Just a quick question for Laval, if I may. I thought the contract with Kirk Bishop and Duncan was…we were done with the final draft, but it’s still open for definitions and clarifications and stuff? Oh, okay. Laval Means: Kirk, the consultant, is working with us on this, I’m just doing the presentations. But he’s going to continue to craft the revisions, be directed by Planning Board, probably prepare, depending on how much revision there is, and it sounds like it will be enough to be able to prepare a City Council draft. He’s seeing it through to the end, it’s just isn’t here. ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 52 of 54 John Hendrickson: Oh, okay, I thought…I mean, I was under the impression that this is the final draft and that everything was pretty much done and everything else had to be done amongst the Committee, so… Laval Means: We’ll continue this process like we have with other ones, which is incorporating the Planning Board recommendations, either summarizing that to City Council or developing a new draft for City Council for their consideration and, you know, another round of review, guidance from Kirk in between all of that. John Hendrickson: Okay. Thank you. Thank you. Jennifer Clary: Jerry, do you have something? Jerry Petasek: Yeah, I was just wondering if we’re going to try and set an agenda for how to go through this over the next four months. Jennifer Clary: I was trying to but I got crushed. Jerry Petasek: Oh, I’m sorry. Jennifer Clary: No, I mean, my preliminary agenda that I had. Do you have a suggestion? Jerry Petasek: I would like to hear what your original was. Jennifer Clary: So what I was trying to do in the beginning was we got through No. 2, so we did the Senate Bill, House Bill. Then I wanted to go to 1, which is basically what we did, which is items to be amended due to the adoption of Title 20. And then go to Article 2, 3, and 5 and kind of get that—general interpretations, definitions, riparian, all those sorts of things handled. And then go to No. 3, items to coordinate with the county, and there’s going to be some overlap, because, you know, obviously the riparian area. And then hit No. 4 and No. 5. Go ahead, Don. Don MacArthur: I, you know, I think it would be…this is my personal read, and obviously I contributed a lot to making this go long and arduous today…arduously, but I think we should be shooting to take action on this at the end of our next meeting. And I don’t know what others have, but I don’t have that many…I mean, the riparian thing took most of our time tonight. And I don’t think…I think there’s going to be another big piece of, maybe talking about the language in the riparian section. I think that…I guess the other question that I have is whether there are things that the Board could put out that we’re going to need…that we want more information. You know, if we get to another point on…two weeks from now were we get to the…gosh, we need language back on this. I don’t know. I don’t know if there’s a way to get that information to Laval and Kirk ahead of time so that there’s…they have a chance to prepare a few things and with the intent that we’d maybe actually be able to take action next week…two weeks from now. What do others think about whether this is doable in one more meeting? Jon, you got a lot of yellow on your… Jonathan Haber: Yeah, I’ve been reading it. I didn’t limit myself to the new material, though, so I have a lot of markings in there that we don’t need to talk about. Jerry Petasek: It sounds like John D wants to bring back WUI talk as well, which I think is valuable, I think it’s a larger topic as well. Is that what you want to do? John DiBari: It would be nice to have a meaningful discussion about it but, you know, it’s not really…it’s not necessarily completely within the scope of that…Laval’s outline. So I wanted to try to limit my WUI comments to just those places where you’ve had deletions or additions. So I’ll do my best to try to craft something that we can either talk about or make a motion on that. And then, ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 53 of 54 like Jonathan said, my other comments are really just about those additions and subtractions, it’s not about the substance of the…the existing regs. Jennifer Clary: Laval. Laval Means: I know you all spend a lot of time looking at this besides your regular life, but I am available if you want to try to go over questions you have or why we did something or the clean up pieces or any additional explanation you can call me, we can visit, or send me an email and I’ll try to do the best I can to be ready two weeks from now or get in touch with you even before that and sort of thin things out a little more. So I’m available. Jennifer Clary: Okay. Don MacArthur: That sounds like a good idea to me. Jennifer Clary: That would be very productive, if you got a hot button issue like the WUI, get it out there, get some information back. Riparian, obviously, we already discussed that, we know what’s going to happen there as far as information requested. Don MacArthur: So, the one question that I want to put out for the Board to also think about is this question about the submittal…like one of the documents we got was kind of the list of…the real list that a subdivider goes through. Laval Means: The submittal…the submittal application, the subdivision application, yes. Don MacArthur: So is that going to get revised based on what happens, is that the theory? Laval Means: It will get updated if there’s changes to the…yes, it will have to. It’s something that staff does, it doesn’t get…it’s not a regulatory document, so it doesn’t have to be reviewed or come back to you. You have it here for reference. Don MacArthur: Right, okay. Jennifer Clary: Okay. So we’ll close this meeting and we will continue it to April 20, 2010. Okay, where’s my… Don MacArthur: Do we want to do the rest of our meeting agenda? Jennifer Clary: Yes. VII. COMMUNICATIONS AND SPECIAL PRESENTATIONS Jennifer Clary: So we’ll go to Communications and Special Presentations. We got nothing? Don MacArthur: There are none of those, and there’s no TPCC since our last meeting. VIII. COMMITTEE REPORTS Jennifer Clary: So no Committee reports? IX. OLD BUSINESS Jennifer Clary: Old business? ---PAGE BREAK--- Missoula Consolidated Planning Board Minutes April 6, 2010 Page 54 of 54 X. NEW BUSINESS AND REFERRALS Jennifer Clary: New business and referrals? XI. COMMENTS FROM BOARD MEMBERS Jennifer Clary: Comments? Jerry. Jerry Petasek: I wanted to wait to the end of the Planning Board for this, it’s a monumental deal. There was a comment from audience that there’s a glut of affordable housing in Missoula and then listed as an example that none of the homes at Burns Street Commons are selling. For those who don’t know, I’m the Coordinator of the Land Stewardship Program at the North Missoula Community Development Corporation and Burns Street Commons is my project. We have two buy/sells right now and just sold a home last week; prior to that we only sold 4 homes out of 17. I don’t think there is a fair representation to say that there is a glut of affordable homes on the market right now, especially those kinds of homes that the builds that are targeted towards households in Missoula that earn less than 80 percent of the area median income, because I’m here to tell you the is the only person to actually construct for-sale homes targeted to people who earn 80 percent of the area median income. And those are Burns Street Commons are the only ones. You know, I think there there’s a perception that because the real estate market tanked last year and continues to…you know…or by perception, tanked, that somehow that there’s a glut of very affordable homes on the market; and I think to a certain degree there that’s true that there are homes…more homes out there, but really, what I’m seeing is that there are fewer homes selling because as individuals and households we look at the future, our own economics and we say I don’t think it’s a good time to purchase a home. And I know, especially, the people that I deal with, there’s lots of folks that are interested in Burns Street, and lots of folks interested in other homes throughout the entire Missoula Valley, but they’re just…they’re looking at closing of large businesses in and around the Missoula area and they’re wondering if the place they work at is going to be next. So, usually I let these kind of comments fly and I guess in my old age, I’m starting to get a little cranky, so I thought that I would just rebut a little bit. So, thanks for listening. Jennifer Clary: Thank you, Jerry. Any other comments? XII. ADJOURNMENT Jennifer Clary: Okay, we are adjourned. The meeting adjourned at 10:41 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)