Category Archives: News

14.2 Repealed

The hearing went against us this morning – 14.2 was repealed.

I’m overwhelmed by the incredible showing we had in written testimony, and at the hearing. There were dozens of thoughtful letters on the record, and a dozen or so spoke. This time, the Commission did at least devote more attention to the arguments raised by Bridger Canyon residents, and I think the message, that zoning is important to people, came across loud and clear.

I think the Commission’s decision rests almost entirely on a perceived principle, that each legal parcel should have one building right. This principle doesn’t have much basis in law; it’s simply what the Commission was comfortable with. (Recently, Murr vs. Wisconsin tested this in the Supreme Court, and zoning mergers were upheld. Even the dissent in that case agreed that it was necessary to strike a balance between private property and the common good.)

BCPOA will consider what next steps, if any, are in order at its meeting tonight. The law does not favor appeals of legislative acts like this (which may be fortunate in general, but unfortunate in this case).

No matter what, we need to keep our eyes on the prize – getting the comprehensive update finished to resolve some of the more dangerous ambiguities in the current zoning.

Zoning Regulation 14.2 Repeal – Background

The Planning Department proposes to repeal section 14.2 of the BC zoning regulation:

14.2 Building Sites Which do Not Conform to the General Regulations.

a. In any district, notwithstanding other limitations imposed by this Regulation, structures permitted in said district may be erected on any single lot of record on the effective date of this Regulation. Such lot must be in separate ownership. A lot of record that does not meet lot area or lot width requirements must still meet other requirements of the district. If two (2) or more lots and portion of lots with continuous frontage in single ownership are of record at the time of adoption or amendment of this Regulation, and if all or part of the lots do not meet the requirements established for lot width and area, the lands involved shall be considered to be an undivided parcel for the purposes of this Regulation. Where lots are larger than required by this Regulation, said lots may be subdivided into smaller lots except no parcel may be divided so as to create a lot smaller in lot width or lot area than required by this Regulation. [Emphasis Added.]

This provision reduces the density rights of small parcels that were adjacent and under the control of a single owner as of the inception of zoning in 1971. This is fairly common in other jurisdictions, and has been widely upheld in the courts (see Gallik testimony for BCPOA below). It appears in at least one other Gallatin County zoning regulation.

If repealed, building rights spring into existence on some number of lots that have not had them since 1971, with attendant side effects for neighbors and density. Repeal also resolves a complaint, arising from the county’s issuance – in error – of a land use permit for a house on a very small, narrow lot along Bridger Canyon Rd.

No one knows exactly which or how many parcels are affected, because it is difficult to determine common ownership as of 1971 en masse. A title search is required in each case. See also: maps of potentially affected parcels.

Summary of Arguments

Supporting Repeal Opposing Repeal
(BCPOA Position)
It’s a taking. It’s not a taking, according to the Supreme Court and many local jurisdictions.
All parcels of record should have a development right. Elevation of lot lines above all other considerations has not been supported by the courts.
In 1971, people understood that all parcels would have development rights. In 1971, the original zoning regulation included language very similar to 14.2.
Some owners benefit from developing their parcels. Adjacent owners who relied on these parcels not developing are harmed.
It’s hard to administer. The zoning does not exist for the convenience of administrators, and there may be other remedies than repeal. For example, the draft Admin regulations put the burden of proof for nonconforming parcel development on the owner.
It’s inconsistent with other districts. At least one other, Sypes Canyon, has the same provision.
Some lots subject to the regulation have already been sold separately or developed. This may have happened, but it is water under the bridge. No specific instances are known.
There’s no visible notice to prospective buyers, e.g., on plat maps or deeds. This is true of many aspects of zoning.
Some small parcels are treated differently from others, on the basis of common ownership. Equal protection is for people, not parcels.
Repeal does not conflict with the General Plan. Repeal increases density, and keeping low density is clearly the primary goal of the General Plan. 14.2 was clearly a part of the original implementation of the General Plan.
It’s part of the standardization of administration. Administration should not be one-size-fits-all where it affects the substantive provisions of the zoning.
Limited staff resources will be required to defend this provision. Limited staff resources are required to defend every provision of the zoning; why single out this one?
It’s ambiguous, resulting in different interpretations by different people. There is no evidence that this is a practical problem.
Parcels that were considered de facto merged become developable, having evaded separate taxation for decades; this is unfair for others who have carried the burden of taxation in the interim.
It’s not spot zoning. It is clearly motivated by a single complaint.
Repeal would minimize the probability of staff errors and litigation. Since parcels potentially subject to 14.2 have now been identified, this is a much smaller risk in the future. In addition, the county’s own proposed administrative regulations provides a good way to handle nonconforming parcels, shifting the burden of proof to the builder.

Documents

The 1971 Zoning Regulation – see section 9.2 for the language corresponding to 14.2 today: OrigRegsMerge.pdf

The 1999 regulation, containing section 14.2 as it reads today: regulations_012699.pdf

The Planning Department Staff Report for the Feb. 14th hearing: Bridger_ZTA_2.14.19_P&Z_Packet.pdf

BCPOA testimony on previous 14.2 proceedings:

From Richard Lyon: BCPOA-14.2.ProcessComparison.190124.pdf

From attorney Brian Gallik: BCPOA-Kensey.GallickSubm.190103.rgl.pdf

Status Update:

On Feb. 14th, the Planning & Zoning Commission approved the repeal, over the objections of a majority of written and oral testimony. The amendment passes next to the County Commission for ratification.

Testimony that arrived in the last few days before the hearing:

public comment 1 of 2.pdf
public comment 2 of 2.pdf

A transcript of the hearing:

Transcript Planning_and_Zoning_Commission_2019-02-14_09-30-31_AM.pdf

Deborah Stratford, 1953-2018

We were saddened to hear that Deb Stratford was killed in an accident on Bridger Canyon Road on December 8th.

Deb was a long time canyon resident and BCPOA director. She was often hidden behind the scenes, but no one has worked harder for Bridger Canyon. Among other things, she was instrumental in preventing a massive development in the Bridger Bowl Base Area in 2005-2007. We will miss her terribly.

Her obituary is in the Chronicle.

Thanks to Kate Vargas for the following:

A memorial service to celebrate and honor Deb’s life will be held at 11 a.m. on Thursday, December 20, at Dokken-Nelson Sunset Chapel, 113 S. Willson Ave. in Bozeman, followed by a reception next door at Bozeman United Methodist Church, 121 S. Willson Ave. Guests are asked to remember the holiday season and try to include color in their spirit and attire. The reception is a _potluck_, so please bring something to share. If you’d like to help with food and kitchen preparation, that would be much appreciated – please get in touch to see what is needed.

We’ve already had several generous donations toward the considerable funeral expenses. Those who wish to contribute need only call Dokken-Nelson at 406.587.3184, notify the person answering the phones that the caller wishes to assist in paying for Deb Stratford’s services, give their credit card number, and specify the amount to be donated. If people wish to donate using cash, they can stop by Dokken Nelson at 113 S. Willson to drop off their money. Checks can be sent via mail to the above address (Bozeman, MT 59715). In the memo section of the check, senders should write FOR DEB STRATFORD SERVICES (so Deb’s account will be credited). Dokken-Nelson issues receipts, so be sure to request one if you need it. I want to thank everyone for their kindness, generosity, and willingness to consider helping Deb’s family in this way.

Memorial donations may be sent to Eagle Mount, 6901 Goldenstein Lane, Bozeman, MT 59715.

Please don’t hesitate to contact Kate (406.586.0549 or kvargas59@gmail.com) if you have any questions or concerns (or comment here– I’ll forward as needed).

Wild orchids of the Bridger Canyon area

Although most of you have seen orchids In supermarkets and garden centers, many of you probably didn’t know that Montana is home to 31 species of wild orchid. So far I have encountered eight species in the Bridger Canyon area. The orchid family accounts for about 10% of species of flowering plants and can be  found on every continent except Antarctica.

Most of the orchids you will see in Montana are quite small and can be tricky to spot, but, the more you see the easier it will get to find them.  All of the orchids mentioned in this article I have found on the west or south side of green mountain (with the exception of Platanthera dilatata which I have only found in Bridger Canyon along Fairy Lake road). The fairy slippers have been blooming for some time now and the first of the Corallorhiza and Dactylorhizas are beginning to bloom. In about a month the Platantheras will begin to display their unusual, spurred flowers alongside the white flowers of the diminutive Goodyera oblongifolia.

 

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Calypso bulbosa, or the fairy slipper, is probably the best known of Montana’s native orchids growing in shady areas, generally on west facing slopes. Many plants of C. bulbosa can be found along the trail/logging road up mount Ellis, and along the history rock trail in Hyalite canyon. C. bulbosa is pollinated by bumblebees who, expecting nectar, find nothing; this means that the bee will only visit any single flower once. This photograph was taken on the Yellow Mule trail in Big Sky.

 

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Corallorhiza maculata (or spotted coral-root) is a tall leafless plant that acquires all of its nutrients and energy through a fungus in its roots (myco-heterotrophy). It can usually be found in large clumps in shaded areas. It is generally pollinated by flies of the genus Empis and a number of species of mining bee. C. maculata also frequently self-pollinates, a process known as autogamy. This is a large colony I found in the woods near my house on Bridger Woods road.

 

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Another leafless orchid, Corallorhiza striata (striped coral-root) is easy to miss in the surrounding vegetation. It can usually be found in small groups in forested areas. C. striata is pollinated by the parasitic wasp Pimpla pedalis. This is an unusually large colony near the New World Gulch trail.

 

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A close look-alike of C. maculata, Corallorhiza wisteriana (or Wister’s coral-root) can be tricky to identify. C. wisteriana tends to be smaller and darker colored than C. maculata and also seems to prefer a slightly moister habitat than its relatives. A slightly more technical difference, C. wisteriana has a lip with straight sides, whereas C. maculata has a lip with two little prongs (one on each side).

 

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Goodyera oblongifolia (giant rattlesnake plantain) is known as a “jewel orchid” due to its spectacular rosettes of variegated leaves. It is quite common (although tricky to spot) and can be found in most shaded areas. G. oblongifolia is frequently seen along the sides of most trails in the Bridger mountains.

 

20170702_153656Platanthera dilatata (white bog orchid) is another relatively well known orchid growing along streambanks and in roadside ditches. Also, P. dilatata has a wonderful fragrance, often described as vanilla and cloves. The plants in this picture are growing in the ditch along Fairy Lake road.

 

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Platanthera unalascensis or the Alaskan Piperia probably has the smallest flowers of any north American orchid. It can be found in relatively dry meadows and along roadsides. Also, it has a very unique fragrance generally compared to that of ammonia or yeast.

 

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Dactylorhiza viridis (frog orchid) seems to be the rarest orchid in the Bridger canyon area (I have found five plants so far). It tends to grow in partial shade in damp coniferous forests and in bogs. Although it is not known what pollinates D. viridis in North America, there are reports of the plant being pollinated by ants and bees in Europe.

As always, never pick or attempt to transplant any wild orchids (unless they are on you property and you know what you are doing), as most of them are rare and have a very sensitive relationship with fungi in the soil and thus will not survive transplanting. It is also illegal to collect orchids or orchid seed from public land without special permission.

There are many species of wild orchid in Montana, and there is a significant chance that there are more species in Bridger Canyon that I have not yet spotted.

Enjoy the thrills of hunting wild orchids!

Additional resources :                                                                                                                            North American Orchid Conservation Center this is a website dedicated to the conservation of North American orchids; it has an extremely useful identification key.

– Ansel Fiddaman

Proposed Bylaws Changes

At the 2017 General Meeting, we hope to approve an update to BCPOA’s bylaws. The purpose of the update is very limited: to improve and clarify administration and procedures, and provide for innovations like electronic meeting participation. There is no intent to change the purpose of the organization or shift the balance of power between members and directors.

An introductory memo:
BCPOA-Memo.Bylaws.170424.pdf

A clean draft of the proposed bylaws:
BCPOA-bylaws.170308.clean.pdf

A redlined version, showing changes:
BCPOA-bylaws.170308.redline.pdf

A summary table of changes:
BCPOA-Bylaws.April24table.pdf

The existing bylaws are here.

October 2016 P&Z Hearing

Thursday’s Planning & Zoning hearing is a big one, with three Conditional Use Permits (CUPs) on the agenda. (pz_10-13-2016agenda) Also, there will be a separate hearing for a septic variance associated with the Ivey Caretaker’s Residence CUP.

Baker CUP

This is a CUP for an accessory building in Aspen Meadow. BCPOA does not oppose; in fact we’re not certain why a CUP was required in this case.

Update: approved.

aj_bakercup

Lyon Guesthouse

This is a CUP for a guesthouse in Flaming Arrow.

Update: approved.

aj_lyonguesthousecup

That in turn requires a modification of the PUD building envelope. BCPOA thinks PUD modifications must be approached with extreme caution, and must be judged by their net benefits to the public. In this case, the modification seems reasonable because it improves clustering and reduces visibility, without harming other resources like wildlife. BCPOA does not oppose, provided that neighbors and the HOA are also amenable.

aj_lyonbldgenvcup

Simmons PUD

simmonspud2

This application is for a Planned Unit Development that subdivides a 40 acre parcel into three (a 2-dwelling density bonus). The site is east of the controversial Theken barn and the Brass Lantern subdivision below the M. BCPOA has concerns with the proposed siting and other features of the plan, and is working with the applicant in the hope of improving it.

Update: denied.

Application

mg_simmonspudapp

Staff Report

mg_simmonspudsr

simmonspud

BCPOA testimony

bcpoa-comment-simmons-pud-3