Ben Brewer, Planner, Development Services, said, I’m presenting today on the proposed amendments to the Townhome Exemption Development related items in Title 20. Townhome Exemption Development we typically refer to as TED so that’s the acronym I’ll me using for most of the presentation here. So, TED was brought into law by the State Legislature in 2011 as an additional form of exemption to the subdivision process. And the City has allowed TED development since it was brought into law though it has created certain challenges over time. There have been several zoning updates regarding TED prior to this one and just to note that the state statute on TED does allow local zoning to regulate this exemption. And earlier this year the City enacted an interim zoning ordinance for TED which was a response to continued challenges brought on by development that was using TED that were getting increasingly larger and more complex. This slide shows the location, size and year of the TED projects that have been filed in Missoula that we know of to date. There are approximately 60 TEDs that have been filed in the city. On the map, the dark green color are the earliest TEDs going to red as the most recent and then the number of dwelling units is proportional. It shows, based on the size of the circle. So, as you can see, in general, TEDs have been primarily smaller developments located towards the center of the city. However, over the years there have been a number of larger TED projects most of which, not all of which, but most of which are located closer to the edge of the city. Interim ordinance was implemented in response to the challenges that were arising for the City in reviewing and processing TED applications. This was mainly to do with larger and more complex developments coming through, using the TED option, though not entirely. Additionally, challenges were identified for projects being proposed that are not yet even been applied for. So, just like to keep in mind that this was not based in any one project but it was an accumulation over time. As part of this process once the interim ordinance was adopted, the City looked at the challenges brought on by TED but also at the benefits that are provided in light of established city goals. So, we recognize the challenges from the beginning but also recognize that there are ways that the TED process could fit well with our goals for focus inward development, housing policy that’s been worked on over the last year, transportation goals, goals for orderly development and preserving and managing for the public health and safety. So, based on some evaluation early on in this process, a leadership statement was established that was used to guide how this proposal moved forward. And, basically, the intent was that the Townhome Exemption Development tool would be intended to encourage residential development in the city’s core, in concert with the City of Missoula’s state of policy goals including the development of compact and walkable neighborhoods, the effective use of existing infrastructure and the building of new, affordable housing in a timely manner. And then the TED tool would not be intended for green fill development, especially where public infrastructure is missing and so on. So, as we went along in our process, we did consider different strategies for this proposal which gave consideration to a number of factors, although the basic just was that, you know, to some degree, we are looking at needing to limit the use of TED in order to align it with the…with meeting city goals, as we’ve been discussing. So, you know, we did evaluate how we might go at this. We looked at potential ways of managing TEDs, limiting them based on their size, their location, based on specific characteristics that might appear on a site used for development under TED, with TED process and what product came out of TED or what cost was involved with the projects using TED and so on and so forth. But the ultimate strategy that we landed on is basic, kind of summed up here which is basically that we wanted to, you know, first of all, we wanted to align TED standards in the zoning to provide a streamlined administrative process for review that was well coordinated with other codes and regulations in the city. This was a…would be a change from the current regulations which include a conditional use approval process which involves a public hearing for TED projects of a certain size. And then we looked at basically using a size cap as a way to provide or institute a limit on what scale of a project type could be used for us. So, we looked at instituting a cap of either 10 or 20 dwelling units if a project was going to be used for a single TED development. TED projects over that 10 or 20-unit sized cap would be prohibited as well as TED projects with certain other characteristics that have come out and been recognized as being especially challenging, using the TED review. So, that included TED projects on property with environmental constraints and TED projects that jeopardizes or jeopardize connectivity within the city. Although, for both of those things, the asterisk is meant to recognize that in our final proposal we are including exemptions for those as well. And then the final kind of key piece of this was that we wanted to take a step toward creating more parody between developing through the TED exemption process and the subdivision process and so that was to remove minimum parcel size requirements for new subdivisions. So, this slide shows the timeline for this project. Up top in yellow is the interim ordinance period which started at the end of May and runs out in early November. The green blocks represent the different stages of this process. And then underneath that I’m including the dates of the public meetings that have been included as this has gone along so we…the interim ordinance was adopted May 25th. Our request for public and agency comment went out on July 12th. So, that was about a month-and-a-half to get to the point where we had developed our initial draft ordinance. And so, just to recognize that this was a quick process that was trying to stick to a timeline in order to have this completed and in place by the end of the interim ordinance period. And so, as we go further into it, there have been several layers of changes and updates and whatnot that was caught up in this…in the necessity to stay on track with this process. I do want to point out a couple of things that one is…or just to acknowledge, I guess, is that the comments that were…there were a number of comments that were received in advance of the Planning Board meeting. That included comments both from members of the development community who we also had meetings with as this process went along, as well as some agency comments and so those were considered by Planning Board and there…we took two separate meetings and at which point they made a number of recommendations but also voted to approve the ordinance unanimously at which point this item moved to the LUP Committee. There was a fair amount of consideration at LUP as well. And, again, most of the Planning Board recommendations were approved to be adopted into the ordinance. Not all of them but most of them. And so, where we are at this state is with our final draft ordinance that has taken these suggested changes and comments and revisions into account and included them in the draft ordinance. And I’ll skip that slide here. So, I’m going to move on to take you through the ordinance itself. I’ve kind of set it up to try to be intuitive and make sense. I’m not going to lie; this is going to take a little time but I’m going to try to work through it as fast as I can and as clearly as I can. The way I’ve set this up is that for reference I’m going to be doing this in relation to the October 7 final hearing draft which is available to you. I, also, have some printed copies up here on the table so anyone wanting to follow along and doesn’t have a draft is welcome to grab one and basically, I’ll go through and point out the page number of the draft up here. This is just a picture of the draft to try to orient you to where the language is and then the language itself will be up here, and I will take you through the proposal.
?? said, very quickly, Ben, could you tell us which attachment number the ordinance that you will be referencing is when the SIRE system for those who are following along at home and have this pulled up and for those of us around the ??dais as well?
Ben Brewer, Planner, Development Services, said, yeah, yup, sorry. It…so this document that we’re going through is labeled right here as the final hearing draft ordinance-amendments to TED regulations 2019, 10-07. It should be near the top of the…[inaudible]
?? said, it is #2 for all those who are following along.
Ben Brewer, Planner, Development Services, said, thank you. Number 2 on the list and then…thanks for pointing that out. There are a lot of materials associated with this item. Okay, here we go. So, starting on page 1 of the final hearing draft ordinance, which…sorry, let me just back up again. There are still some color codings on this draft. This is just to point out that this is the draft that came out of the final LUP meeting on this and there were some…and which was the meeting that most of the Planning Board recommendations were approved. And so, those items are included in this draft in red. And there are some additional staff proposed clarifications in here that are written in blue. Otherwise, the language in black includes existing language and the original proposed language that came out of the draft from the first reading on September 9th. Alright, so I’m just going to try to take you through this and make it make sense. Starting on page 1 this is the section in the residential zoning district’s chapter in the Zoning 20.05. And we added to the intent section here based on the leadership language and, additionally, incorporated a minor staff clarification on that section. Let’s see, I’m just going to put this down there. Okay. Also, on page 1 is an additional clarification that TED is not permitted for non-residential uses. That was added to…under the general description section. Moving onto to page 2 of your ordinance draft in Section C and D there, those are additional clarifications. The city municipal regulations apply, not just zoning and that point to the main use and building specific standards section on TEDs. Also, on this page is where the chart that typically or currently points to the trigger for conditional use, TEDs has been retooled to incorporate the size cap and point out the elements that would prohibit a project from going through TED. And then below that, on the bottom of that page, is a work section on the notice for adjacent property owners, which again because we’re changing the conditional use element of this, it changed the trigger for when this is required. And then adds some language in response to issues raised by Council that brought up concerns about agency notice. So, moving on to page 3, this has one change that ties into the strategy to get rid of the minimum or waive the minimum parcel size standard for new subdivisions. That’s added into this chart. And then the footnote itself is added to page 5 of the draft at the bottom there and that includes the Planning Board recommendation that was added at the last LUP. And then moving on to pages 6 and 7, these are pretty basic clarifications but these are meant to reorder this list of other uses to point to other sections in the zoning from the residential ??and industrial sections and the residential section points specifically to the townhouse and townhome sections. So, and then that brings us to page 8 on the ordinance and this is really kind of the meat of the changes here so this is the section that currently in the regs addresses conditional use TEDs. We’re repurposed this section to apply to all TED developments and so this is the use of building specific standards, Section 4 Townhome Exemption Development. So, starting on page 8 at the top we worked some on ??. We worked ??to the applicability sections, mainly, especially removing, you know, references to conditional uses and adding a language on the size cap and ??prohibited. We did some or added some additional clarifications in some of the other standards including that TED is not applicable for nonresidential development. And then the final standards under A. 6, 7 and 8 are new standards in the section that include response to issues raised by Council as far…regarding how community land trusts can or should be able to use TED review and also incorporate a Planning Board recommendation to include a bonus to the size cap for projects that are reviewed at the same time as associated subdivisions. Moving on down that page, in Section B, conditions not suitable for TED, this is a new or a reworked section and ties into the ??to the strategy along with the size cap for working the limit TED to a scale that is workable and in line with city goals. And so this, you know, basically breaks down into four different subsections that would be scenarios or conditions on a site that would be reasons to prohibit a project from going through TED. That’s not to say that a project will be prohibited. It’s that a project will be prohibited from using the TED exemption rather than other development options. And so these include properties in the flood…properties that are in the floodplain or have a portion of the property in the floodplain, which this prohibition also includes an exemption for development that would not include disturbance in the floodplain area as well as some other treatment through the review process. The second criteria includes the hillside including properties with hillsides over 25% but again there’s an exemption that’s applicable there. And then #3 is a prohibition on a new TED overland?? Or ??overlay in an existing TED declaration. And, finally, conditions not suitable for TED would include property that will jeopardize important right-of-way connectivity, although after again changes made at LUP are approved at LUP. There is an exemption for that included as well. So, that brings us to a section on setbacks and separation. This has been reworked basically to point to a new section in the measurements chapter that deal with this for TEDs. And then moving on down, this again this is page 9 in the draft, the final hearing draft. This is a new section called “On-Site Constraints.” So, this is a section to address constraints on a site that are not grounds for prohibiting a project from using TED but that we want to provide additional review and approval requirements in order to treat it appropriately. So, this is where we work to mitigate natural resource constraints especially and that includes submittal and review expectations specifically for slope lands that are not covered in the section before this and then also lands with the potential for slope instability or soil instability or high ground water or that may require storm water management. This moves us onto page 10 of your…of the draft. And this is the infrastructure and fire safety section which was…we reworked somewhat to basically to tie into Title 12 Engineering Standards and City Fire Code. There is some new language proposed by staff in this section but it came out of, again, continued conversation within the department and it has specifically to do with the language for evaluating routes and access within an individual TED parcel and then for providing pedestrian connectivity from within the TED parcel to the surrounding streets and alleys. Still on page 10, there’s a section on blocks that was reworked somewhat from what’s existing now and it also includes new staff proposed language that came out of a request from the last LUP meeting to address how to evaluate providing a waiver to the block length standard in this section. And, finally, on page 10 this includes the trigger for parks and trails, parkland requirement. This again is because of it changing from using the conditional use approval process for TED projects. Now that they are all administrative, we’re changing or proposing changing some of the triggers and thresholds for when these requirements would kick in and so this was set at five dwelling units or over five dwelling units, sorry, after the last LUP meeting we had. And then moving on to pages 11 and 12, there aren’t many changes that were proposed here. Mainly just one that clarifies what plans can be required for projects including parkland dedication. And then on page 12 an additional exemption to the parks requirement for projects that have gone through recent subdivisions. So, we are now on page 12 of the draft and…or of the ordinance, excuse me, and there was a change made just to the again the trigger for when the transit requirement would apply, which would be projects including over 10 dwelling units. And then the next two sections are additions to what’s in the section currently and they really get into the review process for the City and what materials are required and when and how the review process for the City will work. The main thing to note here is that a zoning compliance permit would be required for any new TED projects with a time limit of two years until the declaration associated with that TED is filed with the option for an extension of a year ??in certain circumstances. This section also includes language to provide clarification for how a TED project should work in combination with a subdivision for that project. And, finally, in this section, this is Section I, there is an entirely new section that’s being proposed that came out of the last LUP meeting that enables and allows for phasing within TED projects. And so this is broken up into two main parts and the basic idea here is that this is to clarify the process and the materials that would be needed to review during the initial zoning compliance permit for a project with the idea that future phases, once that declaration for the TED project is filed, would be instituted through amendments to that original declaration. So, the first part of this phasing section covers how to review a phasing plan and what should be included in the plan when it’s submitted. And there is some additional language proposed by staff here that comes out of coordination with the County Clerk and Recorder that is specific to how the future…the area that contains the future phases for a TED project using phasing would be designated in the declaration. And then the second part of that phasing section is language for what to review for when a new phase is added and clarifies that a new phase would involve another and a new zoning compliance permit for that phase. So, moving on, we’re still on page 13 of the ordinance. We are getting there, I promise. This is another new section that clarifies how TED declarations would be…would tie into the City review process for TEDs. There’s a few things to note here. One is that if phasing is involved with a TED project, the phasing plan for the entire project would need to be included with the declaration and then clarifies the conditions or other things that would need to be finalized or filed or approved on the City side before the City would sign off on a TED declaration to be filed. This takes us into page 14 of the draft. The next section of this declaration section is…regards amending TED declarations. The idea is that unless a change to a declaration is an incidental or minimal change, that they would be reviewed through the City Development Services again through a zoning compliance permit. And then this is the final standard that’s included in this use ??in building specific standard section for TED development which is a design standards for TED projects with detached homes on a public road, which would require that if you’re on a TED ownership unit that is adjacent to the public road, that that unit faces the public road. So, that takes us through the specific TED standards. There’s several other items that are included in this proposal which I’ll just take you through here. There are changes to…that clarify how TED applies to accessory dwelling units. This is again on page 14. There are…there’s added language to the non-conformities section for nonconforming lots that ties into the waiver of minimum parcel size for new subdivisions, and that is also on page 15. And then there are a couple of terms in the general…in the terminology chapter that are updated to clarify that the City does not recognize TED ownership units as lots and there’s also language added to the measurements and exceptions. A parcel area section again to clarify how minimum parcel area applies to newly sub…new subdivisions. And, last but not least, there is a clarification on how setbacks and building separation applies in a TED project. This was moved from the chart, the table in the residential zoning district’s chapter, to be, we think, better explained in this section. And there is some language that was approved from the last LUP item there as well. So, that’s the final page of the ordinance except for where we sign it into law and the end of my presentation. And I’m happy to answer any questions. Just want to note that this has been reviewed for criteria and making text amendments and found that it complies and this is the recommended motion we’re asking you to consider tonight. Thank you.
Mayor Engen said, thank you, Mr. Brewer. With that, I will open the public hearing.
Ryan Frye said, builder in town. I have a couple of comments so I’ll just do one now. I would like to reference Section G in the parks and trails amendment. So, this one came a little late to the process I believe, probably I think after your first review. So, I’d just like to comment on this initially. I’m really struggling to see the necessity of this amendment. Currently written requires a minimum set aside of 40 by 20 feet of open space in townhome developments, which is nearly impossible with the infill developments that this TED restructuring is trying to accomplish, small lots, small parcels of land. So, what it really is, is cash in lieu. Asking the developer and the end user to make a cash in lieu payment to parks and trails. If the whole proposal is for “development of compact, walkable neighborhoods the effective use of existing this structure and the building of new affordable housing in a timely manner,” then why are we adding this new fee that increases the cost of housing? And I’ll use my example I brought up before, the five-townhome development in the Slant Streets. Here we have four new homes and one existing, five units. Let’s see here. So, I built these homes, paid for and installed new sidewalks and curbs and gutters, moved and updated two storm drains, paved the surrounding alley so the City has no new roads or new infrastructure to maintain. Yet, a total yearly tax per unit or, sorry, yet, we have four new units with a total of $3,200 a unit put down. So, that means a new tax base of $13,000 in the City with no new infrastructure costs to the City. So, I’ll refer to the quote earlier. Effective use of existing infrastructure. So, surely parks and trails can be cut…can be taken out of that tax base but I know we have to compromise. So, what they’re proposing is, in the cash and lieu, is more of a fee based on the appraised value of the lot of 11%. I mean, it just gets confusing and it’s going to be time-consuming to do. So, I’d rather propose the flat fee approach where we’re doing a thousand dollars per unit as was referenced in the initial proposal with the Cowboy Flats, as an example. That way we, as developers, don’t have to get a commercial appraisal, wait for an appraisal, wait for Parks approval, wait for ??City review and all that goes along with it. So, those are my comments.
Mayor Engen said, thank you, sir. Additional comment this evening? Mr. Bryan.
Gary Bryan said, I work at Berkshire Hathaway Real Estate. I’m a real estate broker in Missoula for the last…over 25 years. My complaint about the TED, that what’s going on here is, I look at some of the TEDs that were done during the 10-year timeframe of the recession. I know that the old Klaus Manufacturing now has affordable houses that were built within a year, sold out in the next year, in the northside, and now with the limitations of how many, it’s just kind of an arbitrary number. Is it really the best thing to put a number on it or what’s the best thing for the property in the city? So, I just think that the TED is affordable, get houses on the street and creates a simpler process than the subdivision which needs its own overhaul. Thank you.
Mayor Engen said, thank you, sir. Mr. Mostad.
Gene Mostad, Mostad Construction, said, I know that probably I’m going to sound somewhat like a broken record but first off, I’d like to put it on record that I think the City in wanting to redo the TED ordinance acted in haste and that the development community, although that we were ??undeveloped, we were involved later in the process. We were never asked in the beginning to be involved in the process when it first started. And being a developer in Missoula for quite a while, all this feels to me is that they want you to do subdivision. We don’t like the TED process, never did, and we’re going to make it as hard as we can for you so you have to go through subdivision. And this town and Councils and everyone are always talking about affordable housing. Well, this is a slap in the face to affordable housing as far as I’m concerned because everyone says that the TED process was broke but no one really comes up with really concrete arguments on why the TED process was broke. There might have been a little bit of finetuning but nothing like this. And another thing that I wanted to mention was, it was quite interesting that they brought up today, this process started in May and it has to end in November. Well, why don’t you put a timeline on them about redoing the subdivision process in the same timeframe? They seem to have done a pretty good job on this. Why don’t we get the subdivision process redone? I get the feeling, as a developer in Missoula, that that process doesn’t really want to be redone or it would have been challenged. And right now, when we do developments in town, am I going to be limited to three minutes, John?
Mayor Engen said, you’re fine. I don’t see you very often, Gene.
Gene Mostad said, having to do improvement guarantees on phasing, even in again, you don’t have to do it in the subdivision process but now they want us to do in the TED process so that means that I want you to go through the subdivision process that’s broken so that you don’t have to do the guarantees. So, everything that’s being done here I think, plus here I am up here representing the development community, one of them anyway, and is that we get three or five minutes up here. We get a few meetings with those people and then it’s all up to you guys and most of you don’t understand the whole paper. You haven’t gotten into it. You listen to them go through it but you really haven’t heard the comments from the development community, why we don’t want this stuff. And it really does affect affordable housing. We’re just not saying that because we’re greedy developers. It’s a…I mean, if the process was quite simple in Missoula, there would be a lot more developers here developing property and it probably would help with affordable housing because there would be a lot more houses on the market. That’s how you get affordable housing is through competition. And you’re not going to get it in Missoula if you continue to do things like this. Thank you.
Mayor Engen said, thank you, Mr. Mostad. Anyone else? Mr. Edgell.
David Edgell said, I just wanted to reiterate a lot of what Gene said. I think it’s very, very poignant. It’s very accurate. And we’re here again, as he pointed out, and there’s no slap to anyone here, it’s a complicated process and for everyone to understand and to listen to a presentation on it is very confusing. But we discussed street development two years ago, 2-1/2 years ago and it was done under the previous TED amendment and it was a very successful project. It produced affordable housing. And the leadership statement that Mr. Brewer put out to start this whole process of coming up with a third amendment describes Scott Street to a T. Everything that was in his leadership statement was done in Scott Street. So, why we need another amendment floors me. All that’s going to do, you keep making it more and more complicated. The engineers have to deal with this, putting these projects together, and everything you add costs money and it costs money to the ??homeowner because we price lots based on what it costs us to produce them. And it’s never…no one ever seems to give any heed to that at all. You’ve got this long 15-page amendment. The process worked before. If you’ve got a subdivision on the South Hills or a TED on the South Hills that’s causing you a problem address that but don’t take what was 120-unit TED on Scott Street and now the maximum is 20 units. And you save money if you can put more units out there. So, please think about it. I, personally, think this should be shot down. It’s not needed and it’s totally unproductive for affordability. Thank you.
Mayor Engen said, thank you, Mr. Edgell. Mr. Easton.
Dwight Easton said, Mayor Engen and members of the Council, Dwight Easton, Public Affairs Director for the Missoula Organization of Realtors. I think you heard the expressions of concern from the development community and we echo that. We believe the proposed rules that are before you tonight are going to significantly impede development of moderately priced homes in the Missoula market. I think if you look on townhome development, which has been benefited by streamline development and permitting process, which in turn has been passed along to consumers in the form of generally lower price points on homes. So, if you look at the 2019 MOR Housing Report, look at page 20, it does show that townhome median price was $254,355. The single-family resident median price was $383,500. Fifty percent more. So, these aren’t things we’re just talking about esoteric. These are hard numbers. To control for square footage because somebody might say that, we got the same numbers and we said what will the houses look like if they were limited to 2,000 square feet? We could maybe be in more line with the typical townhome development. A new townhome median price was $253,032 and 95% of all of our data was within that framework. The new single-family resident median price, 2,000 square feet or less, was $345,000. Still 36% more. Townhomes have been a much-needed tool used by the development community to create first-time homeownership in the city. It’s also notable homeownership in the city is a minority, 46% are homeowners and that is compared to the national average of 58%. There’s a lot of concern about this ordinance and what it will do to homeownership opportunities in the moderately priced price points. I think we need to seriously consider that. We…it is our hope that we can quickly move forward to streamline and improving the process to develop moderately-priced homes in Missoula. Thank you.
Mayor Engen said, thank you, sir. Anyone else this evening? Mr. Johnson.
Chris Johnson said, I’m an attorney with Worden Thane. I’m not here representing any particular client in this matter, just to get that disclaimer out there which my clients will be glad to hear because they’re not getting a bill for this. I’ve done any number of townhome projects in this city. A rough estimate is maybe half of them so I have some working knowledge with how this is working. It’s been a frustrating process watching this go through because I see a lot of it driven by a couple of problem children that have come up. And whereas there have been any number of successful projects that haven’t warranted or invoked the…some of the issues or the remedies that have been proposed in this specific amendment. I will echo a few of the things that were…a few of the statements that were made by some of the other presenters and that is that this level of change has a very real impact on the affordability of the housing. The…I would echo that the, I think, the exaction or the open space or parkland dedication is significantly high and is a direct burden on any project that’s over five or more associated with this and it’s very real as to affordability. As to some of the details of this, I’ve still not heard, and this happened quite a while ago, any articulated reason why commercial projects are exempt from these and simply not allowed. They are clearly allowed under state law. And the thing to not confuse is the fact is that this subdivision exemption is a creature of state law. It’s the Montana Unit Ownership Act, and they make no distinction. As a matter of fact, the Department of Revenue has mechanisms in place in how to appraise or value residential townhomes and residential condominiums and residential and commercial condominiums and commercial townhomes. So, I mean, they’re clearly a thing that’s been allowed. I haven’t heard a real good reason articulated why they’re being prohibited for commercial units other than it’s just not the vision for the City of Missoula that these things would be used for that. The fundamental reason why these seem to have been so popular is the difficulty of subdividing in Missoula and it’s just a fact of life. I’ve done any number of projects where I could objectively look at them and say these would have been better to have gone through subdivision. Overall, end result would have been better to go through subdivision. The reality of it is if those projects had gone through subdivision, they would have never been completed. They would have never penciled out or you would have had no end result that was even vaguely affordable in any definition of that term. The…it’s interesting that the, as the development, as the TED standards get more and more complicated, they come to resemble subdivision review more and more, which is ironic because this is supposed to be a subdivision exemption. It’s also an irony associated with the fact that you’re using your zoning regulations to regulate subdivision. That’s an irony because statewide in the state of Montana people have used subdivision regulations to essentially affect use regulations, which are, in my mind, zoning regulations. So, maybe it’s come full circle. I have a couple of details or specifics about these particular amendments. One is a highly technical, not highly, but a somewhat technical one and that is in Section I, subpart 2, it identifies zoning…the length of zoning compliance permits. And somehow in the amendment between A and B, there needs to be a word either, or, or and. It’s unclear whether it’s either of those renders it invalid or the unless or whether it’s both of those. I suspect that it should be or and at the end of the subpart there should be an or, given the reading of that. So, it shouldn’t obviously have to be both if you get a reading. The other thing they did have an opportunity to talk to the City staff with, which is again a technical issue, and that has to do with amendments. In this instance, they…I was hoping, because this had been a gray area when you needed to amend, when you needed…or when you needed to amend, when those amendments triggered some kind of additional zoning review. My general rule of thumb, I told clients, is if you’re ever tinkering with the parameter of a parcel or a TED unit, things like that, major changes, you should probably go back and get new zoning review of this. As for other things, you know, generally they’re not required or they’re sucked up in building permits. So, you make a change to the unit, yes, the TED depictions of the unit should match up with building permitting, that’s a feature of state law. If you amend one, you need to amend the other but a lot of this stuff gets reviewed at building permitting and not necessarily at the TED level. The issue with these amendments is, my hope was, that the City was going to articulate certain standards that would say, in this circumstance, this circumstance, this circumstance, this circumstance you should go back and get re-review of your zoning compliance. In this instance, all they’ve done is simply just say feed everything to a zoning officer, no matter what amendment you’re making, and then they make a determination whether it’s material or not. So, if I have a developer that comes make and they’ve limited the number of pets in their units to two and it turns out the demand is people want to have three cats instead of two and they have to amend their development covenants, we have to resubmit to the City. So, I’d much rather prefer instead of being everything fed to the City, every amendment fed to the City for review, it be a lot better to see a list of criteria that actually got to the detail, the material details that the City should be concerned with. Like I said, it’s potentially a ridiculous circumstance where some minor covenants associated with that TED declaration end up being submitted to the City for review. Suggestions on that, obviously, unit parameters. Anytime you’re dealing with a parameter of a TED unit, setbacks on the exterior boundaries for the TED parcel, for the overall TED parcel. I mean, things like that would be the material changes that the City properly should be looking at. Having to feed every potential amendment to the City is just more of an onerous process associated with this. I suspect I’m at three minutes.
Mayor Engen said, thank you, sir. Anyone else this evening? Alright, I will close the public hearing. Are there questions from Councilmembers? Ms. Anderson.
Alderperson Anderson said, Mr. Brewer, if you would rejoin us up here, it would be lovely. If the Mayor would allow, I do have a couple of questions.
Mayor Engen said, it’s question time.
Alderperson Anderson said, well, I just wanted to put that out. So, could you address the issue about how many cats and dogs and having to send that back in?
Ben Brewer, Planner, Development Services, said, yeah, yeah. I think that actually to me that…I think that was a good example of why we couldn’t write that into the code. There are various ways that covenants might be changed and the declarations might be changed that we, I mean, to try to itemize every one of them it seems very difficult. So, the language that’s in there, that Section J, so on page 14 of the ordinance, the way this reads is that approval of a new zoning compliance permit is required for all amendments to file TED declarations unless the zoning officer has determined that the amendment complies with the following criteria: the change is for an incidental change or modification to a building design and changes do not effect site plan layout, easement, phasing, infrastructure improvements or other municipal code requirements. So, I think that seems pretty clear that we can look at that and say the number of cats allowed in a TED is, you know, meets these criteria for ??anyone that doesn’t need to come through for a review on our end. I know that…and like, you know, Mr. Johnson said, these get very gray and there will be situations where that’s less clear but the idea of the language was to, you know, if it’s not something that involves the development and the layout and the things that we typically look at as part of our review for when it’s first being permitted, then it, you know, we would not want to or, you know, need to rereview that for something like that.
Alderperson Anderson said, thank you. May I have another?
Mayor Engen said, yes, ma’am.
Alderperson Anderson said, so, looking through my notes, we have met on this six times before today. So, in one of the last ones was talking about the phasing and I…my notes say that we had divvied that up into one to ten units for four years, 11 to 20 for eight years. I do believe that was Dr. DiBari who brought that forward, that amendment, and I…could have got squishy towards the end. So, I see that in the language it’s just is up to eight years without any unit’s kind of parameters.
Ben Brewer, Planner, Development Services, said, yeah, that’s right. What was approved out of the committee is the language that’s included in this draft and then if there are additional changes to that, you know, we understand that might be up for more discussion tonight but for the draft that we…or the ordinance that we…that staff proposed for the hearing tonight, we didn’t include that in the language.
Alderperson Anderson said, and one more, if I’m allowed. So, an agency review, it just says the equivalent or the respective agencies but it doesn’t anywhere then cite a list and how is that determined on what would be considered the respective agencies that review would be solicited from?
Ben Brewer, Planner, Development Services, said, yeah and that’s on page 2 of the ordinance. And, you know, this is something that is a little similar to the last question that specifying, you know, we looked at our typical agency list for a conditional use and our typical agency was for a subdivision and to specify it in the code both risks being overly cumbersome but also missing someone that should be on the list where once it’s in paper or once it’s in writing then if it’s not there, then should we not do it. And, as opposed to keeping it general and allowing that list to be added to over time or to be tailored specific projects that are more applicable or that ??may where certain agencies might apply to one project but not to another. And, you know, the way that the agency review list is maintained for conditional uses, you know, it’s not specified in the zoning which agencies are contacted there either but it’s generally kind of an internal practice that as, you know, we have a good idea of kind of from where to start and then as agencies express interest or ask to be added to the list we, you know, that will grow over time. So, that was the thinking there.
Alderperson Anderson said, and I apologize, can I have one more? Really, really quick. I appreciate your presentation, the slides. In…back to your presentation on slide 3, you have the dots representing the projects in the various years but the key that is missing to that is the size of the projects. And I know either you or Laval may know, if not that’s fine, but since we adopted TED ordinances, how many of those projects have been over 20 in TED ownership unit sizes?
Ben Brewer, Planner, Development Services, said, [off microphone] sorry, since 2011, when TED was created, there have been, I think it’s 10 projects over 10 dwelling units. Over 20, there was one that was 11, one that was 12 and one that was 16 so I’m going to say 7 TED projects that were over 20. So, there’s kind of, you know, from what we’ve seen is that the majority by far of the number of TEDs, not the number of units created through TED but the number of TEDs is under 10 or 10 or less dwelling units. And there’s kind of a gap between 10 and 30. There have been, I think, three TED projects that have been within that range and then over 30 there…the rest of the big…the larger TEDs are above that number. Is that…make…
Alderperson Anderson said, [off microphone]…trying to get at the number of projects that have over 20 TED units in them or dwelling units in them.
Ben Brewer, Planner, Development Services, said, yeah. So, about 7…
Alderperson Anderson said, so, the…like…
Ben Brewer, Planner, Development Services, said, about 7 projects.
Alderperson Anderson said, 7 projects that are over 20. Thank you. That’s what I was getting at.
Mayor Engen said, further questions? Ms. West?
Alderperson West said, my question is about I guess Section K and there’s just the one heading that ordinance…TED units to a public road and I’m trying to visualize what that means on, you know, when you’re actually building out, seeing infill a lot. So, a prime example of a TED that recently came for sale on the north side is the development on North 3rd Street which has the six-ownership units that are all facing a courtyard and does this language mean that the two units that are currently in the front, facing the public right-of-way, that are facing their front doors, are facing the courtyard, those would have to flip in orientation?
Ben Brewer, Planner, Development Services, said, yeah, that basically is exactly right. So, the standard applies to a TED ownership unit and so TED ownership units are what a TED is divided into to create separate properties for sale and so depending on how the TED ownership units are designated on the TED, those that are adjacent to a street…so, on like on that…is that on…
Alderperson Anderson said, it’s right behind Ole’s.
Ben Brewer, Planner, Development Services, said, yeah, Fifth or…
Alderperson Anderson said, it’s…I think it’s…or maybe it’s North 4th? Somewhere right?
Ben Brewer, Planner, Development Services, said, right. So, they, you know, I don’t know the layout to that project specifically but most likely, you know, the structures that are direct, you know, closest to the street are designated within their own TED ownership unit. And so, for those specific TED ownership units the standard would apply. So, if the entrance faces the street, the typical…as it would under a subdivision that involved creating new streets and roads.
Alderperson Anderson said, thank you.
Mayor Engen said, okay. Mr. Hess.
Alderperson Hess said, thanks. I guess, Ben, could you comment on the flat fee approach that Mr. Frye mentioned for the parkland dedication or the cash in lieu requirements?
Ben Brewer, Planner, Development Services, said, I’m happy to comment that, you know, this is kind of outside of my range of knowledge but I think it’s, you know, it makes sense in that, you know, the goal of this is to tailor it to be a streamlined review process and so the points he brings up about adding to, you know, the time to verify and approve and work at agreements and a appraisal and things like that, that, you know, that would be a more involved approach than to have a flat fee. I don’t know how that would be implemented but I see the point taken.
Mayor Engen said, further questions? Ms. Jones?
Alderperson Jones said, on the parkland issue, under G, could you just spell out for me…I just need to be able to compare the different approaches here. We have it so that five TED projects and more than five dwelling units must…and then there’s a long section about how they’re going to ducktail with parks requirement. So, previously, with our previous TED ordinance, what was the scenario for parks for…if there was a division, just refresh my recollection on that. And then I just need to be able to compare it to what we have here. And then there was what is the difference between what is proposed here under G versus a minor subdivision? Does that make sense, my question?
Ben Brewer, Planner, Development Services, said, yeah, yeah, sure. So, as far as what we have currently, you know, this is an existing requirement but it exists in the section which only applies to conditional use or TEDs that require conditional use approval.
Alderperson Jones said, okay.
Ben Brewer, Planner, Development Services, said, so, the trigger for conditional use was either TEDs with more than five dwelling units and less dense zoning districts or TEDs with ten or more dwelling units in the denser zoning districts. So, the original proposal on this was to align it with the standard for projects in the denser districts which was more lenient and then this kind of realigned it with what the standard is for the less dense area TED projects. Does that answer that question?
Alderperson Jones said, well, and then just specifically in terms of a minor subdivision just is flushing out. Is this more of a requirement? Is it less of a requirement? And I think you partially answered it but I just want to make sure that that’s what you’re answering.
Ben Brewer, Planner, Development Services, said, yeah. I’m going to cede this one to my…
Laval Means, Development Services, said, hi, Laval Means at the Planning Section. So, for minor subdivisions there’s an exception to not require parkland dedication if they are all single-dwelling lots. And for a TED project they would all be single-dwelling lots. So, it is more…I mean, it’s on par with what we are…how you would do it with subdivisions because above five, so six or more is a major subdivision and then parkland kicks in. Fewer than five it would not in subdivision, equal to ??TED.
Alderperson Jones said, so, the way it’s written now it actually is…
Laval Means, Development Services, said, on par.
Alderperson Jones said, correct. Paralleling it.
Laval Means, Development Services, said, more than five is the same way that a major subdivision would look at parkland and then it gets, you know, into the calculation of how much the land, etc.
Mayor Engen said, Ms. Harp, question? I’ll come back to you. Mr. DiBari?
Alderperson DiBari said, Ben, I wanted to bring attention back to the point that Mr. Johnson made about I(2) A & B. Have you had a chance to take a look at that and if you haven’t yet, we can come back to it but I think I would concur with his point that an or belongs there.
Ben Brewer, Planner, Development Services, said, yeah, I think that makes sense to make it a sub-standard of A but…
Mayor Engen said, further questions? Ms. Harp?
Alderperson Harp said, Ben, I guess I feel like I’m going back a little bit in time to some committee meetings but I guess I’m really…I don’t understand why we have the size constraints of 10 and 20 when Planning Board recommended 20 and 30. And I’m wondering if you could really provide some context to that. I understand we have a…one particular project out there that is making life very difficult for everyone. That being said, I don’t think most of the projects that we’ve seen fall into that realm and I think I’d like a really coherent answer to that, in terms of size.
Ben Brewer, Planner, Development Services, said, I’ll do my best but I would start by saying that the…kind of the…the starting point for 10 and 20 was based on various kind of criteria that we use for trying to establish a threshold or a number that made sense, that was reasonable but that addressed the challenges that were being experienced on the City side for reviewing TED and the associated implications with some projects and some proposed projects that were coming across our desk. And so, like I said earlier, you know, we evaluated different kind of strategies or ways that we could look at evaluating when, at what point development, through TED, was too difficult to make sure that we could maintain, you know, an ability to manage for orderly development and to provide for the general safety and welfare, which is what we’re charged to do. So, we looked at different methods of trying to determine that. Size was one of them and it’s the one we landed on. I mean, I…ideally it would be…we would write a set of standards that allowed us to identify, you know, perfectly when this was…at what point a project would be, you know, too challenging on our end to maintain, but it’s difficult to do and it’s difficult to capture, you know, things from all…on all ends. One of the challenges about TEDs is that they come in all shapes and sizes and situations and there’s benefit to that, obviously, that it allows a flexibility that is different from other processes but it’s also a challenge on the regulatory side. So, we need, after our evaluation, you know, process, we looked at, you know, the limiting by size was the most straightforward way and it captured a lot of the things and challenges that were coming up and so it was what we pursued. And then the question was coming up with a reasonable threshold that would be the…what we would use to limit development through TED. So…and I’ve talked about this in earlier conversations with this group and whatnot but some of the key criteria we looked at were, you know, the pattern of TEDs, development through TED to date. We looked at some kind of criteria or threshold that indicated, you know, when development might be at a scale that might involve some kind of connection to or off-site improvements that would be needed to serve that development and that played towards using the trip calculation standard of 200 trips a day, which is the point where, under subdivision and zoning, the City Engineer can require a traffic study. We looked at the area that would be needed under the zone…the density that the zoning allows to meet the cap and so that was where we have landed on the area of half a block or 1-1/2 acres or so, which is basically most of the zoning districts that…the residential zoning districts that we have based on this cap, it would be limited to that area with a sense, as we get larger than that, there are other important amenities and facilities and infrastructure that the City might want that it might stand to lose if it, you know, if it occurs through TED. And then, finally, I’m…??but, oh, and then another consideration is that, you know, based on these cap numbers, we presented them to the Planning Board and it was recommended that they be raised and it was recommended that we institute a bonus to the cap if it was…as kind of an incentive for development being done in tandem with, you know, for a TED that would be done in combination with subdivision, that they be done together as an incentive to provide transparency. And so, there were kind of two options on the table of how to potentially increase the scale of the development that we’d done through TED. There was a lot of conversation on that. At one of the LUP meetings here, I think the first LUP meeting that occurred after the Planning Board session, and most of the time was spent on kind of evaluating what the implications were of the sized cap and in relation to the rest of the proposal. And so I think the way that played out was basically to, you know, this proposal is kind of a suite of items or amendments and they’re all in relation to each other, and so the language in here was based originally upon the, you know, the threshold set by that size cap. And so, rather than agreeing to or moving to raise the cap out of hand, is what came out of that committee meeting was that the cap would stay where it was because that would kind of set the scale of how the other standards in this were developed but that the bonus to the cap was included and so there is the ability to develop to the level that was recommended by Planning Board but it involves kind of a layer of transparency and coordination through the review process.
Mayor Engen said, further questions? Ms. West.
Alderperson West said, I’m going back to the…facing the public right-of-way issue. So, under these proposed TED changes do you foresee scenarios in which private roads would be created?
Ben Brewer, Planner, Development Services, said, yes.
Alderperson West said, follow-up question. So, I guess or I’m not sure what the best way forward is cause I don’t…I would like to change this in some way or another.
Mayor Engen said, you will have an opportunity if we ever get a motion on the floor.
Alderperson West said, okay, perfect. So, my second question is I’ll use the Edgell development of Scott Street Village as an example. I realize it wouldn’t have been built the way it is with existing regulations even as they are. In that scenario a whole line of houses would be forced to face Rodgers Street, is that the public right-of-way, rather than the private streets? Is that correct?
Ben Brewer, Planner, Development Services, said, well, in the case of that development if this was in place, it would have gone through some kind of subdivision in advance of developing through TED and so likely the…I know that’s kind of…that’s a unique intersection, example, but the idea would be that, you know, as part of the subdivision you would plan for meeting the zoning standards in this section.
Mayor Engen said, further questions? Ms. Harp.
Alderperson Harp said, Gene, are you still over there? Would you come forward please?
Mayor Engen said, going to ask the question on his way up?
Alderperson West said, so, Gene, you mentioned something that caught my ear and you were talking about the improvement guarantees that were required in TEDs but not in subdivision and I was wondering if you could speak to that a little bit. And maybe start off by even just explaining to the most of us what an improvement guarantee actually involves.
Gene Mostad, Mostad Construction, said, improvement guarantee involves either an insurance bond or a letter of credit from a bank. And depending in where you’re at in your development how much of it you’ve gotten done, when you want to file the final plat, you have to give them…I always give them a letter of credit to the City guarantees that you’re going to finish the rest of those development costs or it gives the City the money to finish the development for some reason if the developer doesn’t. Does it make sense? The way that I’m reading the TED is that they’re going to want us to give them guarantees on the phases that we haven’t started. So, which we don’t do at all now. Right. So, that would be a huge burden.
Mayor Engen said, further questions? Seeing…I’m sorry? Question?
Alderperson DiBari said, yeah, I just…we’re trying to follow along a little bit at home here so I’m wondering if Ben can point us to exactly where that is so that we can read it for ourselves and make a determination.
Ben Brewer, Planner, Development Services, said, sure. This is Section I, starting on page 12 of the ordinance. 12 or 13. Sorry, was that on the declaration section or…sorry, that would be page 13.
Alderperson DiBari said, Section J.
Ben Brewer, Planner, Development Services, said, Section J starting on the bottom of the page.
Mayor Engen said, further questions? Seeing none of those, Mr. DiBari? Sorry, Mr. von Lossberg.
Alderperson von Lossberg said, to just process this question, where are we relative to our deadline and such?
Mayor Engen said, it would be tonight.
Alderperson von Lossberg said, yeah, just confirming.
Mayor Engen said, Mr. Hess?
Alderperson Hess said, the, I guess Ben, could you just talk to the…speak to the improvement guarantees how that relates to scale of project with the, I guess, could you talk through a practical example of a subdivision of similar scale as to what we’re allowing here?
Ben Brewer, Planner, Development Services, said, I’m not sure if this answers your question but this is a, I think, instituting a fairly similar process ??what’s ??name of an ??enabled through subdivision. And it will, you know, be tailored depending on the project, if phasing is used or phasing is not used, the scale, the size of the project, whatnot.
Mayor Engen said, any further questions? Ms. Merritt?
Alderperson Merritt said, I may be out of order here so just please tell me if I am.
Mayor Engen said, okay.
Alderperson Merritt said, I would like to suggest that we send this back to committee. It just feels like after all of this discussion and all the questions that this just doesn’t ??click. I understand that we’re up against a deadline but it’s a deadline of our own making so that’s…so, if I’m out of order, please let me know.
Mayor Engen said, what is our statutory deadline, Mr. Nugent?
City Attorney Nugent said, the initial interim ordinance is good for six months. You can get two extensions for one year if you have a two-thirds vote of approval or you could modify the existing interim ordinance and do another interim that starts for six months. But that’s what state law allows, six months for the first one and then two one-year extensions but the one-year extensions require a two-thirds vote of approval by the City Council.
Mayor Engen said, okay. So, sending it back to committee not an option. Extending is. Are there further questions? Ms. Cares.
Alderperson Cares said, I wouldn’t vote to approve this tonight so I guess I want to know from the Chair what he thinks about Ward 6’s desertion of your…like what do you think about what Ms. Merritt said?
Alderperson DiBari said, I didn’t take the questions as questions that fundamentally question the premise of what we were doing. I think they were clarifying questions and I think, from my perspective, we’ve been pretty clear. We’ve been very clear all along about what the intention of doing this was and I would hazard to say that I think this proposed ordinance is better than the interim one and I’m not sure it’d be useful to continue the interim ordinance when we have something that answers a lot of the questions that we were trying to get at by doing this to begin with.
Mayor Engen said, any additional questions? So, Ms. Merritt, you can, if Mr. DiBari makes his motion, any one of you can make an amendment or offer a substitute motion if you’re interested in that. So, in advance of asking you for a motion, given Ms. Merritt’s question, I’m compelled to speechify for a minute. If Council passes this ordinance, I will sign it and I will hold my nose simultaneously cause I don’t think it’s very good, and that is not a comment on staff work. Staff has done the work that this body has asked it to do in collaboration with this body. A little context. We started with a notion because we didn’t like a particular project very well on a hillside in Missoula, Montana that generated notions around we’ve got to stop townhome developments because we didn’t anticipate this going on. And that produced a, I think, a degree of panic and concern that resulted in a call for a moratorium on TEDs. We moved on from a moratorium on TEDs to an emergency ordinance on TEDs. I question the premise that we had an emergency to deal with so we ended up with an interim ordinance. That’s what we’ve been living with now for the last six months and we imposed on ourselves a deadline to craft a permanent ordinance, and that’s what you’re considering this evening. There’s little that I heard from the folks who build houses in our community tonight that I didn’t agree with. I don’t think we like our subdivision regulations very well. I don’t think the community likes our subdivision regulations very well. Whether you’re a developer or whether you’re somebody impacted by development, I don’t think you like those regulations very well. I don’t think we like our TED regulations very well. Ben did yeomen’s work in describing the depth and breadth of this document. If I were building stuff in Missoula, Montana, I sure as hell wouldn’t want to deal with these regulations. They’re cumbersome. They’re challenging. And I think they also fundamentally go to that affordability issue for the end user. We have a responsibility, as Ben suggests, and I think we all take it very seriously to provide for orderly development in our community and provide for the public safety, health and welfare and I’m not sure that this additional set of regulations that operates in tandem?? subdivision regulations that again we don’t like very well does us much of a service. I think you can pass this ordinance tonight. What I will do is this week convene a group to get together to start working on those subdivision and TED regulations in collaboration with the people who are building houses, the people who are doing the work, that we have a policy that expresses our interest in getting that work done. We seem to be talking out of both sides of our mouth here to a certain degree. We want housing and we want affordability and we want it now. We have described it as a crisis yet we’re tipping up regulations that I believe provide additional challenges and additional obstacles for those expressed policy goals. And it’s nobody’s fault. It’s a set of circumstances that are complicated in a community that is complicated with a problem that is complicated and our answer to it is complicated. I think we can simplify our answers. I think we can simplify what we’re trying to do here. And my commitment here is to work with all of you, the folks in this room, outside of this room, some of whom have gone home, for all sorts of reasons, to get all of this better. Our staff is working with a lot of mixed messages today and they’re doing it under tremendous development pressure. None of this is ideal. I think we have an opportunity to get to an ideal or something closer to an ideal. If you want to continue with the existing ordinance as it stands, I think that would be fine. I don’t…I haven’t counted noses. I don’t know if there are votes for that but I think that would be fine. On a particular note, the parks thing, we’re going to have to start making some compromises. We’re going to have to start making some choices about how we’re going to invest and what we’re going to require in order to get housing affordability. And I will remind folks that each one of these units has an impact fee associated with it and that is a park impact fee that is associated with it, and that park impact fee goes for capital projects in parks, mostly building them. And so it’s not as if any…it’s not as if these units aren’t contributing to that infrastructure. It’s not as if these units aren’t contributing to deal with the impacts of new development. All of that said, somebody make a motion and we’ll giddy-up and go. Ms. Merritt?
Alderperson Merritt said, at the risk of being accused of wanting to rearrange the deck chairs on the Titanic, I’m going to make a motion that we extend the interim ordinance another three months to give us a chance to perhaps make what we have in front of us a little bit better.
Mayor Engen said, that motion is in order. Is there discussion on the motion? Mr. DiBari?
Alderperson DiBari said, trying to gather my thoughts and I honestly don’t know what that’s going to…what change that will affect unless we decide to scrap everything and start all over. In which case, I would propose we get rid of TEDs altogether and then think about how we implement them in a way that is meaningful and meets important community goals. To my sense, that’s what we’ve been trying to do with this, is be cognizant of not just townhome exemptions that have been proposed but ones that were…or cognizant of the impacts of TEDs that have been proposed but also ones that were sort of in the planning stage that we’re really stretching the limits of what we could do in terms of securing public right-of-way, ensuring connectivity, addressing specific land use concerns. And, you know, we’ve been extremely sensitive to the feedback that we’ve gotten, I think, as well as we’ve worked through this process. So, I’m just not sure…I mean, other than the comments that we would rather that there’d be hardly any regulation around this, I’m not sure what you go back and do. I mean, these…every single piece of this is in response of this proposal and it’s as a response to some condition that we faced at some point in time, as we’ve tried to address these things. And so I would say that the reason why so much work has been put into this is because we collectively have said that this is a tool that we want to try to keep and we’re just trying to set the rules that enable us to keep it in a way that protects our ability to guide growth in a meaningful way and provide, as Ben said, you know, for the general health, safety and welfare. So, in three months, I’m not sure what changes unless you just start eviscerating this or you scrap it and start from scratch.
Mayor Engen said, Ms. Anderson, on the motion.
Alderperson Anderson said, I am not in support of the motion because of all of the eloquent points of Dr. DiBari laid out. Also, that we have been hearing from the development community how uncertainty is the worse possible thing that we could hand to them and so I think that I, you know, if the Mayor wants to convene a working group about, you know, changing our subdivision regulations, I bet Mr. Mostad would like to co-chair that with you. And if we worked TEDs into this, that’s fine. But just passing…I think this ordinance through all of the meetings that we’ve had and all of the feedback and the Planning Board and staff’s work is better than the interim ordinance. Discontinuing the interim ordinance gives the development community a lot of uncertainty because who knows what we’re going to come up with in three months. And so, I think passing the ordinance that we have in front of us and then convening a working group and working on our regulations is the best way to go forward. I agree with Dr. DiBari that I don’t know what can get changed significantly in three months. And I’d also like to point out, and I think it’s really important to consider, that we are the only community in Montana who has utilizing TED. And so, other communities are growing and thriving without TEDs and yet we are the ones wrestling this monster. So, I think that we’ve done a good job. I think that the majority of what is in here is set to give clarity, which the development community is asking for, and I don’t think we should continue on with the interim ordinance as is. Let’s pass the ordinance that we have in front of us and then work on our continued regulations.
Mayor Engen said, Mr. Hess.
Alderperson Hess said, thanks. The Mayor corroborated what I had said at a previous meeting which is that on day 1 after this ordinance is dealt with, we start working on version 2. And so, because of that, I appreciate the call to assemble a working group. I think on balance for me the best approach is to pass this ordinance tonight and uphold that commitment to start working on the next version as soon as possible. I think this is markedly better than the interim ordinance. It addresses some concerns that we’ve seen. And at the end of the day, we’ve somehow managed to create an unhappy development community and a series of unhappy neighbors that surround development proposals and so if everyone’s leaving a little bit unhappy, we might be striking a balance, and we can refine that balance over time but it’s a starting point and it’s better than where we are.
Mayor Engen said, Ms. West.
Alderperson West said, I have to say, I’m honestly, entirely conflicted on, I guess, the decision that stands before us at this very moment. I guess my ??tweak would be if we were to send it back, extend the interim ordinance and send this back to committee, I think there should be some sort of a commitment to maybe starting from a different starting points. And I think one of the things that’s really missing in our shared language about TEDs is that we don’t really have a definition of what is infill and what sort of projects are generating the density in existing neighborhoods and I think we’re trying to achieve with TED projects that take advantage of the existing infrastructure and, therefore, pass on the affordability…you know, more affordable prices to potential homeowners. So, I think, I’m going to say something that’s mildly unpopular probably, I think that in this whole process, I think larger TED developments pass off a considerable amount of future costs on homeowners in a way that we probably can’t adequately plan for and that I can guarantee most homeowners aren’t planning for either. So, we are allowing ownership structures that will eventually result in deferred infrastructure that isn’t ours to take care of. And so, if we’re going to send this back to committee, like I would support that, but I don’t think that necessarily just going back to this over and over again is going to be the right solution either. I would like to see TEDs that are small, take advantage of our infrastructure and then subdivision that builds out green field development.
Mayor Engen said, further discussion on the motion? Mr. von Lossberg.
Alderperson von Lossberg said, thanks. I’m going to support Julie’s motion to extend it. I do agree with others that I think there’s a lot in this that is better than the existing…there’s also some stuff in here and if this doesn’t pass, I’ll propose a couple of amendments. So, I’d like to get this a little bit closer. I think a three-month extension is reasonable and…but if that doesn’t pass, I mean, we should…the working group should be convened regardless. I will also say that it has been difficult to get engagement on this. And while I agree with the Mayor, you know, the terminology of that emergency or not, but for folks to not recognize that there’s a real issue that we’re trying to address in going through this process is an incredible level of cognitive dissidence with what’s been going on and what we see on the horizon. So,…but I hear a lot of good input. I probably will get your name wrong. I think it was Ryan about value in tax base and park impact fees. So, there’s some things to try and work on here and I think a little more time would be helpful.
Mayor Engen said, just a little technical information, Ms. Rehbein, what do we need to do in terms of notice? And there is a practical matter regard to a three-month extension. That’s going to get us to about…we’re going to be going through holidays, etc., so I’m not sure that we get much done but, Ms. Rehbein.
City Clerk Rehbein said, so, we are required, I believe, to conduct another public hearing on the extension of the interim zoning ordinance and we need to provide 15 days’ notice published. Is it…Jim, I think it’s 7 for the first one and Laval and I just checked the cross-reference. It goes to annexation and zoning statutes for the extension and that’s a 15-day period, if we’re correct about that. So, we wouldn’t be in a position to be able to do the extension this evening at the City Council meeting and Jim will get us back on…he’s got Title 76 ??up and running now, so we’ll hear more I’m sure.
Mayor Engen said, there’s a reason he hauls them books around.
City Clerk Rehbein said, there is. They’re very heavy but they’re very useful.
Mayor Engen said, further discussion on the motion while we’re doing that? Ms. Jones?
Alderperson Jones said, I appreciate that the level of conversation this evening shows that this is complicated and that a lot of the work has been done but a lot more needs to be done. And I guess my feeling at this point is I would rather pass this ordinance because it’s a lot better than our interim ordinance. Start the subdivision work but my sense is by all the work that Ben has done on this, has already bubbled to the surface, a lot of the issue-spotting that will lend itself to the subdivision, and I think the two will go hand-in-hand. And I would love to see it a year from now, revised subdivision, and then if we need to address the TED to make it work with the subdivision, we handle that. So, I think we’ve already started down the road by all of the work that has been spent on this and it is certainly not all for naught. It’s just…we’ve got to keep going forward and give people a certainty of what the rules are so it’s not the best place to be in but I think a year from now it could be a lot better. So, that’s my inclination.
Mayor Engen said, Ms. Harp on the motion.
Alderperson Harp said, Mr. Mayor, just speaking to that working group that you just briefly tossed out there, both on TEDs and subdivisions, do you think we could be able to attain that goal within a six-month period versus a three-month period?
Mayor Engen said, so, I would like to do them concurrently and I would like to not set a deadline because I don’t know what it’s going to take for us to get there. I’d rather it be right than fast.
Alderperson Harp said, I would agree with that.
Mayor Engen said, Mr. Hess.
Alderperson Hess said, I was going to suggest an alternate path we deal with the…a few amendments that might come up tonight and pass the thing tonight and spend the next few weeks learning about this issue-spotting as anything that may need to be addressed in another version. Then a motion to reconsider is always in order and we still have time to extend the interim ordinance.
Mayor Engen said, I am getting the general vibe, given notice requirements and tenor of the conversation, that we might want to try amendments on the ordinance that’s before us tonight and would offer an opportunity for Ms. Merritt to withdraw.
Alderperson Merritt said, I will withdraw my motion pending the outcome of that further and that’s…
Mayor Engen said, thank you.
Alderperson Merritt said, thank you.
Mayor Engen said, so in that case, Mr. DiBari?
Alderperson DiBari said, bear with me. There’s lots of numbers and things. And, Ben, just to make sure, does this motion include all of the staff suggestions or do we need to add in, as amended by staff? Okay. Great. Okay. So, I move that the Council adopt a City of Missoula initiated ordinance amending Title 20, Missoula Municipal Code, in the City Zoning Ordinance…I’m sorry, the City Zoning Ordinance Residential Districts Chapter sections 20.05.040.D, 20.05.050.B, Table 20.05-3; Other Regulations sections 20.05.060, 20.10.050, 20.15.0060, which I think has one too many zeros maybe, in Residential, Business and Commercial, and Industrial Districts Chapters; Use and Building Specific Standards Chapter section 20.40.180; Accessory Uses and Structures Chapter section 20.45.060.B.1; Nonconformities Chapter section 20.80.020.A & B; Terminology Chapter section 20.100.A; and Measurements and Exceptions Chapter section 20.110.010, and adding a new sub-section F to section 20.110.050, all related to Townhome Exemption Development and I would like to add an amendment to that. That amendment can be found on page 13in Section I, 6 2 and I would like to…I’ll just read that whole section, but just the last part of it is the proposed amendment. The deadline to establish each new phase shall be a maximum of two years from when the previous phase was established starting with the initial declaration, the phasing plans shall not be for a duration of longer than, and this is where the amendment starts…longer than four years for a TED of five or fewer dwelling units and a duration of longer than eight years for a TED of six or more dwelling units.
Mayor Engen said, that motion is in order. Is there discussion on the motion? Mr. von Lossberg.
Alderperson von Lossberg said, I’d like to propose an amendment to delete Section…sorry, it’s on page 13 and…no, it’s not. It’s on page 14 and it’s in Section K. It is followed by Chapter 20.45. It’s the design standards for TED projects with attached homes on public roads and may I speak to it?
Mayor Engen said, you may.
Alderperson von Lossberg said, so, I understand well intentioned…Heidi asked a question about this and it got me thinking, she’s referencing a development in our ward on 3rd Street near Ole’s with multiple, very affordable units that face ??towards a courtyard. It would…that would not be possible under this. There also seems to be some, unless I’m misunderstanding it and I’m happy to be corrected if that’s the case, I didn’t quite follow the situation with Mr. Edgell’s development. And, I guess, in a more broad sense, what I hear over and over again from small developers is the need for creativity around infill development with these units and I have a sense that, I mean, this might be something that can get massaged in later drafts but right now I can think of at least one important project that it would not make possible, and I don’t want to stifle that creativity.
Mayor Engen said, that motion to amend is in order. Is there discussion on the motion? Ms. West.
Alderperson West said, I will support Bryan’s motion. I can think of five TED developments off the top of my head that would not be possible with this restriction. And I think…and they are all, you know, true infill developments that are in the neighborhood on, say, a double lot and they…and I understand, I think, the intent which is to create, you know, a people-friendly environment and I guess what the effect though on those small infill projects is, is that you are creating…you’re basically…it results in a smaller shared public space that’s not as visible to the owners of the units. And if I were to live in that unit and I had a child that I wanted to, you know, be able to see, I would prefer to have my house oriented to that interior space. And I think that there are…there just needs to be more flexibility to address the site complexity that is in these smaller projects. And I think that the intent is probably more to address the larger scale projects where there is the generation of public roads and right-of-way and that those houses create a pedestrian-friendly environment but…and I also…Ben also said that there still can be the result of private roads and so I don’t think it makes sense to necessarily orient homes towards the public road if they are more directly interfacing with a private road. So, that’s my comment.
Mayor Engen said, further discussion on the motion to amend? Mr. DiBari.
Alderperson DiBari said, so, I don’t think I’m going to support this. We went to great lengths to ensure that, through out design standards of that commercial buildings front the streets and that was all to not have the backs of buildings front the streets. And so, I get what Heidi is saying in terms of wanting the flexibility to address the courtyard, I’m not sure it’s mutually exclusive. Why can’t a house both address the front, the public right-of-way, and the courtyard? It’s…most houses have that level of interaction with their backyard as well. So, I’m not sure I see the mutual exclusivity and I’m also reminded of the effort that we put forth to ensure that all of our commercial buildings face the streets and I’m not sure why we would exclude residential…residences from the same thing.
Mayor Engen said, further discussion? Ms. West.
Alderperson West said, I guess in response to your question, John, a lot of these, at least the smaller homes that I have seen built on the north side recently, only have one door. There’s one way in and one way out, like the tiny homes especially. It seems like there’s one main entrance and I could be wrong. So, because they are often so constrained and, you know, their footprint is so small, there isn’t that we have a front door and a back door, you know. Some have a garage and then a door. So, there’s not quite that flexibility, I don’t know.
Mayor Engen said, further discussion on the motion to amend? Ms. Anderson.
Alderperson Anderson said, I appreciate what Mr. von Lossberg is trying to do by…because I hear Ms. West, and I think that there should be in situations there should be some design leeway, latitude for this exact example because I agree, in this situation it would be best if the house opened up into the courtyard. So, is there a way instead of like all one or all another to, you know, just simply add a, you know, an opportunity for if it’s a design element to be brought forward to the zoning officer, to say yes, this is fine, this makes sense given the surrounding the neighborhood, the various components in it. So, is there language that Mr. von Lossberg could possibly see that would say something about design constraints and approval process?
Mayor Engen said, I think the amendment does that.
Alderperson von Lossberg said, yeah, my short answer is no. The language I have right now is to remove that standard. It stifles creativity with our small developments and the description that Heidi and I just described. We ask exactly this of our small infill developments for latitude and flexibility, and I’m thinking of the most affordable one in the north side right now and it kills it.
Mayor Engen said, further discussion on the motion to amend? Seeing none, those in favor please say aye. Opposed? The motion passes.
AMENDMENT
Alderperson von Lossberg made a motion to delete Section K, which is followed by Chapter 20.45. It is followed by Chapter 20.45. It’s the design standards for TED projects with attached homes on public roads.??
Upon a voice vote the amendment passed
Mayor Engen said, back to the main motion as amended. Further amendments? Ms. Merritt.
Alderperson Merritt said, sorry, now I’ve lost my place. My amendment is in regards to the parks and trails and I would like to make a motion to adopt the suggestion that Mr. Frye made and that there be a flat fee instead of the calculus around…as is described in that section #G(3). And I don’t have expertise to say what that number was or should be but the number that Mr. Frye suggested was $1,000 per unit but I don’t know if that is appropriate.
Mayor Engen said, so, one thing I would suggest is, I don’t know what the flat fee should be either. I will suggest that the impact fee is proportionate to the size of the structure. It seems to work. We’re getting the dough but if you want to clarify your motion with regard to the fee, we can do that.
Alderperson Merritt said, given that information, I mean, that’s…with the smaller TED developments I feel like the impact fee is probably going to be adequate. What I see missing from this description is actually any reference to the proximity to parks which would make a lot more sense to me to have a regulation about if you’re so far away from a park, then you ??should have to pay more. But that’s, unless I’m missing it, that’s not what I’m seeing here. I guess I would, I’ll try and cut to the chase here, revise my motion to just…with as it says under Section G TED projects more than five. I would…I guess what I really want to do is just go back to what got struck out of that section was the 10, I would say. That’s what I would really prefer to see is that we just go back to the 10. So, the cash in lieu would only apply to projects of more than 10 dwelling units.
Mayor Engen said, okay, that motion is in order. Discussion on the motion to amend? Ms. West?
Alderperson West said, so, I am not going to support this motion. I originally also had a lot of hesitation around this section. And then CBC’s ??Leigh Gordon places the TED at seven units and then Homeword’s Montana Street homes is a TED that’s six units. And this would have added a cost to our project but we also added five children to the neighborhood who are in close proximity to Kiwanis Park and this is a tool that can be used to invest and increase the capacity of our parks that are going to be seeing the use by the added residents in that community, and I think that the limit of the threshold of five to have those, I guess the fee, kick in is consistent with what we have in subdivision review. And it provides us with a much-needed tool to be able to invest in our local parks that are going to be seeing increased usage by people that are living in these units.
Mayor Engen said, further discussion on the motion? Ms. Harp.
Alderperson Harp said, I’m in support of this particular motion or sorry this amendment to increase it to 10 dwelling units. Heidi, I think you make a really great point and yet part of what we’re also doing with our, not just our young families moving into neighborhoods, but also our seniors who need that kind of access as well. However, when we come back to the monetary impact that we are imposing on these units when we jump from $253,000 for a TED to $345,000 for a single-family home under 2,000 square feet, that is a huge cost. And if…and I think Julie’s motion speaks to some kind of compromise that we have to take into consideration. I understand going back to the idea of making sure that we have that green space. We value that but we have to make sure that we have roofs over people’s heads first and foremost.
Mayor Engen said, on the motion to amend? Ms. Becerra.
Alderperson Becerra said, I will not support that amendment just because I think it’s important to remember that impact fees are not specific to park development. Every time we have a development that adds more children, we have to think about the fact that later on we’re going to have to be trying to find grants or fund through a CIP that purchases of equipment and so I think it’s important that we continue to have some sort of mechanism to create that funding that will eventually get us there.
Mayor Engen said, Ms. Jones.
Alderperson Jones said, I appreciate the…oops, there we go. I appreciate the intention behind the motion but I’m not in favor of it. At this point, I would much rather just leave it a mirrored image of the subdivision setup, the regs that we currently have. I think that it’s a perfect example of conflicting values. We want to have open space. We have to have affordable housing. We acknowledge over and over again that if we’re going to build more densely under our Growth Policy, we have to have some open space to make it livable and breathable. So, I’m not sure what the perfect balance is but to me this is actually a much bigger conversation that needs to happen if we sit down and have a working group on subdivision. I think we’ve gotten it to the right point for now. It’s probably not perfect but that’s a bigger conversation to have and it’s really a reflection of our community values so instead of tweaking it right here, I would just rather leave it as is, have that bigger conversation and address it more holistically.
Mayor Engen said, on the motion to amend? Mr. DiBari.
Alderperson DiBari said, thanks. I think, like all of our zoning code, the ordinances are…or the ordinances are a work in progress. And I think this is a reasonable place to start. I, like you, Julie, have thought that probably the best way to handle this is a measure of proximity to parks and if there’s a circumstance where there are already parks within that specific distance, then maybe there isn’t a requirement for cash in lieu but in cases where it isn’t the case, we should have that. I think that’s a perfect thing to assess and work on for Title 20 maintenance or maybe a part of a working group but for this ordinance I’m going to stick with what we came…what came out of LUP.
Mayor Engen said, further discussion? Mr. von Lossberg.
Alderperson von Lossberg said, it’s a question, I can’t remember the genesis or the history from the 10 that was struck out to the 5. Was that in committee through Planning Board? Is…I don’t know if, John, you might be able to answer that or…
Alderperson DiBari said, I believe we did it in committee.
Alderperson von Lossberg said, so it started as 10 from staff and then went to 5 in committee.
Ben Brewer, Planner, Development Services, said, originally staff set the number at 10 and, prior to the Planning Board or LUP? Between Planning Board and when this came to LUP we received a comment from the Parks Department that had kind of reevaluated, reread and it was a comment to urge to lower that number from where it was set originally, and then it was adopted or approved at LUP.
Mayor Engen said, further discussion? Ms. Merritt.
Alderperson Merritt said, a couple of times we’ve referenced that the five thresholds reflect what’s in subdivision and I would just remind us that this discussion is about an exemption from subdivision and it should bear…I mean, not in every situation, of course, but we’re making something that’s different. So, to me, that’s just not a persuasive argument but it’s the same as what is in the subdivision regulations.
Mayor Engen said, Ms. West.
Alderperson West said, so, I think what process the houses get through, whether it’s subdivision or a TED, the impact in this case is the same. And I think that that is why it is appropriate to view them in the same way.
Mayor Engen said, further discussion? Seeing none, those in favor, please say aye. You know what, I forgot to ask for comment on the last two. I apologize. It’s been a long night. Anyone in the audience care to comment? Okay. Now back to the voice vote. Those in favor please say aye. Those opposed?
Better count them off, Ms. Rehbein.
City Clerk Rehbein said, okay, this is on…I think it’s an amendment to Section G with respect to cash in lieu of parkland projects, TED units over 10.
??confused with the amendments?? I think following was next??
AMENDMENT
Alderperson Merritt made a motion that there be a flat fee instead of the calculus described in Section #G(3) of ?? $1,000 per unit.
6 Nays, 4 Ayes, motion failed
Mayor Engen said, and the motion fails. Back to the main motion, as amended. Further discussion? Further amendments? Seeing none, Mr. von Lossberg.
Alderperson von Lossberg said, I’m hesitant to make it but I feel like it should at least be deliberated so I’m going to make a proposed amendment for the Planning Board recommendation on the cap which I believe is 1530.
Mayor Engen said, okay, that motion is in order to alter the cap raising it by…I’m sorry, Mr. von Lossberg? What’s the new cap?
Alderperson von Lossberg said, 1530 was the one that came out of Planning Board, I believe.
Mayor Engen said, okay, motion is in order. Discussion on the motion? Ms. Merritt?
Alderperson Merritt said, I support that motion. I guess one of the thoughts that I had was that we should not set that cap lower but because the underlying zoning is still going to control and to me setting the cap and having the zoning seems like a built-on-suspenders sort of solution that we don’t necessarily need.
Mayor Engen said, Ms. Anderson.
Alderperson Anderson said, I will not be supporting the motion. We discussed this at length in Land Use and Planning and deliberated after hearing about the deliberations from the Planning Committee and the ??10:20 and then the bonuses in conjunction with subdivision sort of laid out the rest of all of this. So, I feel as though it was debated thoroughly. We, as a committee, voted to keep it at 10 and 20 and I will not be supporting the amendment change.
Mayor Engen said, further discussion? Seeing none, anyone in the audience care to comment on the motion to amend? Seeing none, we’ll have a voice vote on the motion to amend. Those in favor please say aye. Opposed? Ms. Rehbein?
City Clerk Rehbein said, okay, hang on just a second.
2 Ayes, 8 Nayes, motion failed
AMENDMENT
Alderperson von Lossberg made a motion to alter the cap to Planning Board’s recommendation of 1530.
Mayor Engen said, and back to the main motion as amended. Further discussion? Seeing none, we’ve had a public hearing, we’ll have a roll call vote.
City Clerk Rehbein said, this is on the main motion with, I think, one amendment and the amendment that was made at the time that the main motion was made.
Ordinance
7 Ayes, 3 Nays, 2 Absent
Mayor Engen said, and the motion is approved.