As you may recall, the membership at the May General Meeting voted overwhelmingly to appeal the commission’s grant of a variance to enable conversion of old barns to guesthouse/recreational use, within the setback from Bridger Creek. As is too often the case, this was an episode of build-first-permit-later, and we were puzzled to see the commission seemingly content to see its authority flouted. There’s more background here:

http://bcpoa.net/2013/04/variance-hearing/

BCPOA has appealed the commission’s decision, granting a variance that allows the project to proceed. While this is a very messy, multilayered case, the points we would like to make are simple. For example,

• The commission should not lightly set aside objective standards, merely because it likes a project, for then standards have no meaning.
• Saving pennies through poor documentation and circumvention of procedures is enormously costly in the long run, as citizens are denied due process and confusion propagates errors.

The first issue we are contesting is that the commission did not issue a proper written decision; it merely delivered the verdict, making reference to the audio recording of the proceedings. That makes it difficult to distinguish actual findings from mere discussion, and imposes additional burdens on anyone who desires to review or contest a decision. This is a constitutional issue, and if we prevail on this point, we may recover our costs. However, in that case, a likely outcome is that the judge would remand the case to the commission for a fresh statement of the decision, essentially restarting the process.

Getting to the meat of the case, it’s still complicated. There are actually two standards for a variance, one via the P&Z commission, and one via the county commission. Rather than considering them sequentially, as is proper, both were heard together. We don’t believe that either standard was met, but this further mingles procedural and substantive issues.

The variance case was actually heard twice. Initially, the commission denied it. Then, circumventing regulations that prevent rehearing an application within one year, the commission reconsidered the variance a month later, under the pretense that it had been “withdrawn” and re-presented with new information.

As if that weren’t enough, the commission only considered the question of a variance after it had already granted a Conditional Use Permit for the project. This is backwards, because the CUP is moot without the variance, and the discussion of standards among the two proceedings was somewhat mingled and confused.

As the case now stands, BCPOA has filed its initial complaint, and the parties have responded. We have moved for summary judgment on the constitutional issue of adequacy of the written decision.

We have met with the other parties to agree on what documents constitute the official record. The county has fought tooth and nail to exclude a few documents, including its own variance evaluation criteria and public sewer permit records. We are somewhat puzzled by this, as they are part of the evidence of a pattern of errors and omissions, but not decisive in themselves. This wrangling increases our costs, deterring future appeals. (By contrast, BCPOA cheerfully granted the applicant’s request to intervene, though it is not in our favor and we could have contested it, because we felt that it was right to do so and minimized cost and delay to all concerned.)

Next, we must file a brief on the substance of the case, though we are hoping to defer that until the constitutional question has been heard.

For the moment, BCPOA is adequately financed, in part due to the very generous rate reduction that our attorney, Brian Gallik, has granted us. Our legal committee, Deb Stratford, Richard Lyon, Charlie Hager & Chuck Broughton, has also put in many volunteer hours. There may yet come a time when we need to appeal for funding, but for the moment we hope we can use our resources for other purposes. In any event, thank you for your support, past and future.

FINAL BCPOA COMPLAINT

GC variance evaluation criteria

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This Thursday, April 11, there will be a Planning & Zoning Commission hearing for a variance to enable conversion of two barns to residential use. The variance is required because the structures lie well inside the 100-foot setback from Bridger Creek. This makes the structures, which predate zoning, nonconforming, and therefore it is not permissible to substantially alter them and change their use.

Sadly, this is another tale of “build first and ask for forgiveness.” Construction commenced without permits, in spite of written notice from the Planning Department that permits were required. The Commission has again failed to take any meaningful enforcement action. This is hard to understand, because the Commission has recently taken enforcement action against other landowners for less serious violations, and is ignoring the very precedent that it spent our tax dollars to set in the MT Supreme Court in the Theken barn case.

This is the second time this variance has come up for review; the first was in January. BCPOA unanimously opposed the variance then, and now. Testimony from the January hearing is in BCPOA comment Petty CUP 2013-01-09.

The plain language of the zoning states that a variance may be granted only when, due to special circumstances of the property, strict application of the zoning deprives a landowner of privileges that others enjoy. In this case, there is no such deprivation, because the property has several acres of buildable land outside of setbacks. Therefore the letter of the law should prevail and the stream setback should be respected.

If you wish to express your opinion on this matter, you can attend Thursday’s hearing, or send a brief note to the Bridger Canyon Planning & Zoning Commission regarding the Petty Variance, at planning@gallatin.mt.gov.

The following memo details problems with permitting and enforcement of the project to date:

BCPOA-Petty 2013-04-09

BCPOA-Petty 2013-04-09 Exhibits 1-10

BCPOA-Petty 2013-04-09 Exhibit 11 Theken decision

Testimony for the upcoming hearing will be posted here as it becomes available.

BCPOA-Petty 2013-04-09
BCPOA-Petty 2013-04-09 Exhibits 1-10
BCPOA-Petty 2013-04-09 Exhibit 11 Theken decision

BCPOA comment Petty variance 2013-04-11

BCPOA comment Petty variance 2013-04-22

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