Missoula Consolidated Planning Board Minutes

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Council Chambers (in person) or TEAMS (virtually)
Attend in person: City Council Chambers, 140 W Pine, Missoula MT
Voting members present:
  • Ellie Costello (City Appt), 
  • Dori Gilels (Mayor Appt), 
  • Rick Hall (County Appt), 
  • Dave Loomis (County Appt), 
  • Sean McCoy (County Appt), 
  • Shane Morrissey (City Appt), 
  • Tung Pham (City Appt), 
  • Derek Kanwischer (City Alt), 
  • and Peter Bensen (County Alt) 
Regular member(s) absent:
  • Josh Schroeder (Conservation Dist) 
  • and Micah Sewell (County Appt) 

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Mr. McCoy called the meeting to order at 6:02 p.m.

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Ms. Manning called the roll. A quorum was met. The alternates, Mr. Kanwischer and Mr. Bensen, were promoted to voting members for the evening.

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Mr. Morrissey made a motion to approve the November 7, 2023, minutes and Ms. Gilels seconded. The motion passed unanimously.

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There was no public comment on non-agenda items.

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New meeting location for 2024:  Karen Hughes announced that the Board would transition their meetings to the Missoula County Courthouse in the Sophie Moiese meeting room. Agendas will be run through Civic Clerk and meetings will be hybrid through the County’s Teams platform.

Mr. McCoy referenced the November 30, 2023, MEIC webinar link that was emailed. The webinar provided additional perspectives on exempt wells. https://meic.org/events/webinar-exempt-wells/

Open Officer positions and reappointment of seats – Mr. McCoy reminded everyone that reappointments/appointments are underway and for members to consider running for officer positions.

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6.1
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Jim Nave, Regional Manager, DNRC Water Resource Division Office in Missoula

Mr. Nave started with an overview of an exempt well: It’s a type of groundwater right you can get that doesn’t require a permit and involves a very simple form and approval process that doesn’t assess impact. It is limited to flow rate of 35 gallons a minute, up to 10-acre feet a year.

He noted that people go this route because getting a permit for a water right is extremely difficult to do, especially if it is determined that you’ll impact surface water. He explained that this is a problem and that DNRC and stakeholder groups are addressing this challenge and looking for solutions. He referenced the DNRC website and suggested folks call him if they want more information.

He provided some of the history about exempt wells and combined appropriation:

  • In 1973 intent was created for people to have a simple way to get water rights for their homes and stock. The unintended consequence is because getting a water right is complicated, people have been using the exempt well permit instead.
  • There was a 1987 administrative rule stating one property and multiple developments of groundwater were considered combined appropriation, even if not physically connected.
  • In 1993 we updated the administrative rule to say that to be considered a combined appropriation, wells needed to be physically piped together and then you are limited to 10-acre feet for both.
  • In the 1990s you could use up to 99 gallons a minute.
  • In 2014, the Sherlock decision was the result of a lawsuit in Lewis and Clark County about whether the state had been applying the rules about combined appropriation correctly. This took everyone back to the 1987 administrative rule. What had happened is there would be proposals for hundreds of lots each with its own exempt well, which was not considered a combined appropriation but still had the same impact.
  • There was a bill in the next legislative session (after 2014) that grandfathered in lots that were subdivided before October 17, 2014.

He described the exempt well review process today. DNRC looks at the property, determines the acreage, and when it was platted to determine which rule applies. It can be complicated for a process that is supposed to be simple.

He described the review that is done for subdivisions:

  • There is a Memorandum of Understanding between DNRC and DEQ to avoid creating subdivisions that cannot get water rights.
  • DNRC reviews the project for water rights as part of the DEQ review of the subdivision.
  • People fill out a form that explains the project plus the amount of water that will be used.
  • DNRC does a predetermination to see if they are using under 10-acre feet for the entire subdivision. To do this they use 0.28-acre feet per dwelling as the standard. You subtract that amount from 10. You use 2.5-acre feet for lawns and gardens. What is left can be divided by 2.5 acre-feet, to determine the amount of any irrigated yard area in the subdivision.
  • The challenge is in enforcement and what happens on the ground.
  • DNRC is tracking water rights as they receive notice of completion and they put people on notice that they have restricted water rights. However, he noted there is a risk that at some point they may have situations where a property runs out of water before all the homes in a subdivision are built, such as if a water right certificate isn’t retired as promised in an application.

Mr. Nave noted there had been some relatively recent changes to the law. They added some exceptions such as for public water supply wells. There are some interesting challenges with the timing of events. You can dig a public water supply well and then file the right, but it isn’t fully perfected until all the homes are built. They can require folks to measure water use in some cases like public supply wells, but not in most cases on exempt wells, because they are exempt. Other exemptions include geothermal heating and cooling systems, fire departments can dig well for emergency fire protection, and you can have more stringent requirements for wells in designated stream depletion zones – the only example is on Rye Creek in Ravalli County.

Mr. Loomis asked if there were any closed basins in Montana. He asked if there were drilling and extraction rules for closed basins. He asked if inner basin transfers were allowed.

Mr. Nave explained Missoula and the Bitterroot were surrounded by legislative surface water closures. He said you can’t apply for water rights for surface water upstream of Milltown Dam or the Bitterroot. He said there was an exception to both the surface water closures for storage projects, but no one has used that yet.

Mr. Nave said applying for an exempt well in these areas is still allowed because they are exempt. He said applying for a groundwater permit in a closed basin is still allowed; however, you would need to find an existing senior water right, retire it, and change it to mitigate and offset depletions from the new groundwater use. He noted that there are likely transfers between the Clark Fork and the Bitterroot basins because the dividing line is in town and it’s impossible to tell where exactly it is located.

Mr. Nave said nothing would prevent inter-basin transfers in the state, but he’s never seen one. Out-of-state transfers have steep criteria.

Mr. Loomis asked what the state was doing about groundwater loss or depletion.

Mr. Nave stated the DNRC was working with stakeholders to come up with solutions. He said new bills would need to pass in the legislature. He noted that the city of Bozeman is looking at the possibility of pumping water from Canyon Ferry to Bozeman. The reality is our surface waters are over-appropriated.

Mr. Bensen asked if it was possible or tenable to police water abuse.

Mr. Nave stated the enforcement program is not robust. Currently, when he identifies a problem, he has a conversation with the person and works with the landowner to resolve it. There is a possibility of a $1000 per day fine. He said residents who had conflicts with neighbors using water that is affecting their rights could file a complaint with the DNRC. He explained the DNRC would investigate, get a report, the District Court would need to be involved and the DNRC would have to be subpoenaed to testify as a witness, and the losing party would be responsible for paying the attorney fees. It’s set up for water users to police themselves. The problem is that you need to have the financial resources to start the process and you might not get those costs covered if you lose. In enforcement, he looks to focus on situations where people are using water without water rights, a clear violation.  He said he thinks the hope is that one day DNRC will have an enforcement bureau.   

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Jennie Dixon, AICP, Planner IV, Missoula County Planning, Development & Sustainability Dept.

Applicant: Donald & Vicki Rosetti

The 2019 Missoula Area Land Use Element and the 2016 Missoula County Growth Policy designates the property for Rural Residential and Agricultural use.  Rezone from AGRR-5 (Agriculture, Rural Residential) to AGRR-2 (Rural Residential, Small-Scale Agriculture)

STAFF PRESENTATION

On July 1, 2022, the Board of County Commissioners (BCC) adopted the Missoula County Zoning Regulations (text amendments and map amendments), following an extensive public outreach and participation process. At that time, the subject property was approved for AGRR5 zoning; all surrounding properties were zoned AGRR-2. The reason for the difference had to do with some testimony and some miscommunication. The landowner is now requesting that the zoning for the subject property be amended to match that of the surrounding properties. Staff is recommending approval of this rezoning request.

See the PowerPoint presentation slides.

Ms. Gilels asked if the re-zoning request was to correct an error.

Ms. Dixon said essentially yes, there had been miscommunication on both sides. She said the applicant had brought it to the attention of the staff and had wanted it corrected.

Ms. Vicki Rosetti, the applicant, said she’d like the zoning to be the same as the surrounding property.

Recommended Motion

Recommend the Board of County Commissioners approve the request to rezone property located at 9399 Baron’s Court, legally described as Parcel 72C, COS #2339, based on the application, public testimony, and the findings of facts and conclusions of law contained in the staff report.

Mr. Morrissey made the motion to approve the request and Ms. Gilels seconded.

Mr. Loomis highlighted that both zoning districts were consistent with the growth policy.

Mr. McCoy stated he agreed. He said that based on the surrounding neighborhoods the rezone was procedural and straightforward.

The Board voted by roll call and the motion passed unanimously.

  • Moved by: Shane Morrissey (City Appt)
    Seconded by: Dori Gilels

    Recommend the Board of County Commissioners approve the request to rezone property located at 9399 Baron’s Court, legally described as Parcel 72C, COS #2339, based on the application, public testimony, and the findings of facts and conclusions of law contained in the staff report.

    AYES: (9)Peter Bensen (County Alt), Sean McCoy (County Appt), Shane Morrissey (City Appt), Dave Loomis (County Appt), Tung Pham (City Appt), Ellie Costello, Dori Gilels, Rick Hall, and Derek Kanwischer (City Alt)
    ABSENT: (2)Josh Schroeder (Conservation Dist), and Micah Sewell (County Appt)
    Vote results: Approved (9 to 0)

Cassie Tripard, Planning Supervisor, Community Planning, Development & Innovation

Applicant Amy Schaer CEO Youth Homes present

Representative Colin Lane, MMW Architects present

Rezone of 550 N. California St. from PUD Missoula Youth Homes to C1-3 - DE-D Design Excellence Overlay

STAFF PRESENTATION

Development Services has received a request from Colin Lane of MMW Architects representing Youth Homes, to rezone the subject property at 550 N. California Street and legally described as Lot 2 of Eagle Watch Estates, located in Section 21, Township 13 North, Range 19 West, 37,251 square feet, P.M.M., from Planned Unit Development (PUD) Missoula Youth Homes to C1-3 Neighborhood Commercial / DE-D Design Excellence Downtown Gateway Overlay. This rezoning will result in a standard zoning district under Title 20 which cannot be conditioned.

The applicant also requests the removal of the Deed Restriction imposed by the City and recorded at Book 340, Page 1595, which restricts the use of the subject property for low to moderate-income housing.

The staff has reviewed the applicant’s rezoning submittal packet and request to remove the deed restriction and recommends approval of both requests.

See the PowerPoint presentation slides.

There was no public comment.

Recommended Motion

Planning Board recommend City Council approve the adoption of an ordinance to rezone the subject property located at 550 N. California Street and legally described as Lot 2 of Eagle Watch Estates, located in Section 21, Township 13 North, Range 19 West, 37,251 square feet, P.M.M., from PUD Missoula Youth Homes to C1-3 Neighborhood Commercial / DE-D Design Excellence Downtown Gateway Overlay, based on the findings of fact in this staff report.

Staff also recommends City Council remove the Deed Restriction from the subject property.

Mr. Bensen made the motion to approve the request and Mr. Pham seconded the motion.

Mr. Bensen stated Dan Fox Youth Homes was fantastic and he supported the rezoning. He said it was worth thinking about zoning for non-profits in the future. He questioned the density and what could be built there if the non-profit chose to sell further down the line.

Ms. Gilels asked if that location would consolidate administrative and medical offices. She asked if there would be youth living on the premises currently or in the future.

Amy Shearer CEO of Youth Homes stated there were no youth staying at the emergency shelter. She stated the shelter had to close in the summer due to staffing shortages and financial issues. She stated those youth had not been displaced. She confirmed the hope was to move all offices under one roof.

Mr. Loomis clarified Mr. Bensen’s question. He said there had recently been new zoning applied to the area to allow for more density.  

Mr. Hall stated the zoning allowed for the property to have either alternative uses or growth in the future.

Mr. Kanwischer stated this development was consistent with the city's downtown, Broadway master plans, and Urban Center Land Use designation. He asked why there were no agency comments from the Department of Revenue or Parks and Recreation.

Ms. Tripard stated it was protocol to notify those agencies of most board actions. She said they don’t often comment.

Mr. McCoy raised concerns about losing an asset to the community if the youth home property was sold in the future.

The Board voted by roll call and the motion passed unanimously. Mr. Morrissey abstained due to a conflict of interest.

  • Moved by: Peter Bensen (County Alt)
    Seconded by: Tung Pham (City Appt)

    Recommend City Council approve the adoption of an ordinance to rezone the subject property located at 550 N. California Street and legally described as Lot 2 of Eagle Watch Estates, located in Section 21, Township 13 North, Range 19 West, 37,251 square feet, P.M.M., from PUD Missoula Youth Homes to C1-3 Neighborhood Commercial / DE-D Design Excellence Downtown Gateway Overlay, based on the findings of fact in this staff report.

    AYES: (8)Peter Bensen (County Alt), Sean McCoy (County Appt), Dave Loomis (County Appt), Tung Pham (City Appt), Ellie Costello, Dori Gilels, Rick Hall, and Derek Kanwischer (City Alt)
    ABSTAIN: (1)Shane Morrissey (City Appt)
    ABSENT: (2)Josh Schroeder (Conservation Dist), and Micah Sewell (County Appt)
    Vote results: Approved (8 to 0)

Charlie Ream, Associate Planner, Community Planning, Development & Innovation

STAFF PRESENTATION

Development Services has received a request from James Sage of Missoula Engineering, LLC to rezone the subject property at 2145 W Sussex Ave. and legally described Lots 13-16 in Block 28 of Carline Addition, located in Section 29, Township 13 North, Range 19 West, P.M.M. from RM2.7 Residential (Multi-dwelling) to RM1-45 Residential (Multi-dwelling). The requested RM1-45 zoning district is a standard district that applies equally to other areas of the city with the same RM1-45 zoning designation. City Council either approves or denies the rezoning request and cannot approve it subject to conditions per MCA 76-2-302.

Staff has reviewed the applicant’s rezoning submittal packet and recommends approval.

See the PowerPoint presentation slides.

There was no additional public comment during the meeting. Three public comment emails had been received too late to put into the agenda packet.

Mr. Morrissey asked if there were on-site parking requirements and if there was a unit size limit.

Charlie Ream stated all parking is required to be on-site and the amount is dependent on the size of the units. New developments require either one or two spaces per unit.

Mr. Morrissey confirmed the developer wouldn’t be required to buffer the building height down to an adjacent residential zone with a lower height limit.

Charlie Ream confirmed.

Ms. Costello asked if the rules for spot zoning could be provided.

Ms. Tripard shared the spot-zoning test in a slide and noted all three criteria must be met to constitute spot zoning.

  1. The proposed use is significantly different from the prevailing use in the area.
  2. The area in which the requested use is to apply is rather small from the perspective of concern with the number of separate landowners benefited from the proposed change.
  3. The change is special legislation designed to benefit only one or a few landowners at the expense of the surrounding landowners or the public.

Ms. Tripard noted that the biggest argument for it to not be considered spot zoning is related to growth policy compliance. There are a lot of areas in Missoula where the zoning does not comply with the growth policy, and this is one of them. The growth policy allows for higher density than the current zoning allows for. Although this is a small area being rezoned to comply with the growth policy, ideally over time the rest of the neighborhood would rezone. She noted that all the neighboring properties would be eligible to rezone to the same district.

Mr. Hall addressed one of the written concerns that said that increased building is increasing prices. He noted that when there is increased supply it lowers prices. He empathized with neighbors facing increased density but also said that we need density. He stated several concerns were addressed by not having on-street parking. He noted that the growth policy anticipates that we grow from the center out and helps meet the goal of providing more housing. He stated that he understood the comments and concerns but was also in favor of the project.

Mr. Bensen asked if Mr. James Sage would explain what he was planning to do with the property.

Mr. Sage stated the plans were still being worked out. He stated he’d like to be able to build as many units as possible. He stated there are site constraints, but the location and transportation were prime, and he’d like to build between 6-9 units.

Mr. Bensen stated he shared the sentiments that Mr. Hall had. He believed putting people in mixed residential areas was a great idea and solution for the long run.

Mr. Pham asked if there were legislative bills that allowed multi-unit development on existing lots and if it impacted parking. He asked if the owner could build multiple units right away or if there was a parking requirement.

Ms. Tripard stated there were a few bills that had passed during the year. She clarified the bill was mandating allowances for multi-dwelling, business, and commercial districts. She stated that the bill limited zoning in B & C districts to require one parking space per unit. She said that the bill didn’t impact the property rezone since it was in a residential district.

Mr. Pham asked if the rezoning wasn’t approved, would there be no ability to require parking with new buildings that might make parking worse.

Ms. Tripard stated the existing and new zoning parking requirements were the same and they apply to new units even those without rezoning.

Ms. Gilels addressed public comment saying there had been cause for concern with some projects allowing for a significantly different building height. She said the proposed development is at the end of the block across from the commercial district. She believed it was an appropriate location, close to the commercial districts that had taller buildings.

Mr. Kanwischer addressed public questions and concerns with parking density. He said all Missoula neighborhoods were being impacted by higher density.  He encouraged and advised the Planning Board to help people thrive by increasing livability and growing sustainably.  He generally asked all developers if folks were being displaced. He wondered if there were programs in the community that tracked and documented these occurrences.

Mr. Sage stated there would be no displacement of residents on the property. He said the existing structure is an old welding and machine shop. He stated he grew up on the property and knows everyone in the neighborhood.

Mr. Kanwischer stated he wasn’t pointing a finger at anyone specifically but wanted to address his concern about displacement generally.

Mr. Loomis commented that incremental intensive neighborhood changes were dramatic and a shock to those affected. He gave an example of a similar project that occurred 20 years prior and how density, size, and height positively affected a neighborhood in Missoula. He said it also became a consistent pattern for developers. He said there would need to be an adjustment period for the community to get used to the change. He said he didn’t feel like more units equaled lower prices. He said if the supply increases and there is a demand for apartments those apartments may be affordable. He said the property was consistent with the land use and zoning.

Recommended Motion

The Planning Board recommends the adoption of an ordinance to rezone the subject property located at 2145 W Sussex Ave. and legally described Lots 13-16 in Block 28 of Carline Addition, located in Section 29, Township 13 North, Range 19 West, P.M.M. from RM2.7 Residential (Multi-dwelling) to RM1-45 Residential (Multi-dwelling), based on the findings of fact and conclusions of law in the staff report.

Ms. Gilels made the motion to approve the request and Mr. Bensen seconded the motion.

Mr. McCoy said he was concerned that the staff wasn’t addressing all the growth policy goals in the analysis. He gave Goal 4, “provide for the diverse housing needs while protecting the strong sense of place in the community and neighborhood,” as an example. He said it was important to protect the character of the neighborhoods. He said he didn’t want to see Missoula neighborhoods be steamrolled into something unrecognizable. He asked how properties are going to be affected by height and setbacks when code reform is updated. He said as code reform approached those topics need to be addressed. He addressed public comment stating the consistent themes seemed to be parking, overdevelopment, noise, and safety. He said the issue of noise seemed coming up frequently. He said this was a topic that needed to be elevated.

Mr. Pham stated he was glad code reform came up. He said sitting on the committee for that, density is a huge concern while affordability was a top priority. He said the only way to address affordability was with supply. He said the price of housing had outpaced the percentage of income required for housing across the nation. He said a priority was looking at density and addressing the zoning code form. This would preserve neighborhood setbacks without sacrificing density.

Ms. Costello said she echoed a lot of the Planning Board's concerns with what choices to make for growth. She said it was a good site for more infill, especially with the adjacent commercial property. She said the Board was aware of Franklin the Fort's public concerns with zoning changes and taller buildings blocking out and shading out their yards and homes. She said it was hard to navigate all the different community needs. She said Sussex was a greenway and the density was a good thing.  It was in a location that encouraged accessible non-motorized traffic.

The Board voted by roll call and the motion passed unanimously.

  • Moved by: Dori Gilels
    Seconded by: Peter Bensen (County Alt)

    Recommend City Council approve the adoption of an ordinance to rezone the subject property located at 2145 W Sussex Ave. and legally described Lots 13-16 in Block 28 of Carline Addition, located in Section 29, Township 13 North, Range 19 West, P.M.M. from RM2.7 Residential (Multi-dwelling) to RM1-45 Residential (Multi-dwelling), based on the findings of fact and conclusions of law in the staff report.

    AYES: (9)Peter Bensen (County Alt), Sean McCoy (County Appt), Shane Morrissey (City Appt), Dave Loomis (County Appt), Tung Pham (City Appt), Ellie Costello, Dori Gilels, Rick Hall, and Derek Kanwischer (City Alt)
    ABSENT: (2)Josh Schroeder (Conservation Dist), and Micah Sewell (County Appt)
    Vote results: Approved (9 to 0)

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Mr. Pham stated that at the TPCC (Transportation Policy Coordinating Committee) meeting they approved procedural updates to the UPWP (work plan) and the TIP budget. This had to do with some federal grants that positively impacted air quality issues. They also approved hiring a consultant for the long-range transportation plan. They made some adjustments to the urban boundary.

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Mr. Pham also noted there is a series of community engagement events for Our Missoula and rezoning. He encouraged everyone to attend.

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There was none.

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Ms. Gilels expressed that it was exciting for a non-profit like Missoula Youth Homes to be able to serve, organize, and consolidate their administration and medical offices under one roof. She said if they wanted to develop part of the property as a source of income that would be a wonderful opportunity and beneficial for the community.  

Mr. Hall stated his term was up at the end of the year and he was waiting to hear if he’d been reappointed.

Mr. Morrissey stated the Sussex rezone was right and appropriate. He said Franklin to the Fort was developing at a quick pace and he understood how the changes would be daunting for residents. He said he reflected Ms. Gilels and Ms. Costello’s comments about density, location, green space, and alternate modes of transportation.

Mr. McCoy stated he always enjoyed the robust intelligent conversations at Planning Board.

Ms. Hughes noted the Commissioner’s Office had staffing changes that created a lag in the appointment process. She said she wasn’t sure about the city but was certain there had been recent changes for them as well. She said she would reach out to see where the city was in their process. She went on to say the Planning Board bylaws state you can continue to serve until you have a replacement or are reappointed.

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Sean McCoy adjourned the meeting at 8:19 p.m.