City of Missoula

An emergency zoning ordinance that would require additional review and approval requirements on certain types of large townhome projects is under consideration by the city of Missoula this week, after a spate of proposals — including Hillview Crossing — prompted confusion over what the city can and cannot require.

Three documents are scheduled to come before the Land Use and Planning Committee on Wednesday. They outline the concerns of city staff, which are the basis for the six-month emergency zoning requirements.

The committee is expected to set a public hearing on the interim zoning ordinance for 7 p.m. May 6, but also will take comments at the Tuesday, April 24, committee meeting, which begins at 10:15 a.m. Both hearings are in the city chambers at 140 W. Pine St.

The documents note that in the past few months, “very large projects” that fall under the Townhome Exemption Development (TED) designation have been proposed on greenfield sites, which are large swaths of currently undeveloped property that aren’t part of an existing street and other infrastructure networks.

Development Services Director Mike Haynes said they don't have any formal proposals yet, but the possible developments generally are on property west of Reserve Street and north of Mullan Road.

The size, complexity, and location of these proposed projects, combined with some developer’s legal opinions as to what the city can and cannot require of TED projects, prompted staff to ask for time to research and propose a balanced package of code amendments, Planning Division Manager Laval Means wrote in a memo.

The city notes that attorneys for some applicants have been arguing the intent of the state law should be liberally construed to allow large TED projects to be approved with few or no local government controls over the type of development or the timing and sequences, the installation of infrastructure to support the development, “or even assurances that the development will ever be completed as presented.”

City staff want clarity for the process and regulations they believe are needed for upcoming TED projects. They also want to coordinate regulatory requirements of other local agencies, and make zoning changes that encourage developers to follow the subdivision review process rather than seek TED exemptions. They noted that recently the city has seen an increase in the number of TED projects as well as the complexity of reviewing them.

TED projects are part of a 2011 legislative initiative intended to make clustered housing more affordable, in part by not requiring the normal subdivision review process. Initially, they were small, infill projects that took advantage of existing road networks, water and sewer. Recently, larger TED projects were approved that were deemed to fit into the “existing urban fabric.”

But for the past five months, city staff and council members have struggled with the Hillview Crossing TED, which is undergoing a conditional use review. Land Use and Planning Committee members, who all are part of the Missoula City Council, have voiced concerns that Hillview Crossing's 68 units are being proposed on slopes so steep that the streets wouldn’t be in compliance with city standards. And, questions arose about soil stability and stormwater runoff.

The committee voted to require the developer to make the streets wider, provide a completed geotechnical study that looks at soil stability and fully developed stormwater runoff plan. They've also wrestled with creating a pedestrian path plan that would better support foot traffic through the TED, and how to ensure accessibility for emergency services. 

Attorney Alan McCormick, who represents Hillview Crossing developers John Guiliani and Dan Ermatinger, has said some of those conditions will effectively kill the project and have never been required prior to approval for other developments — including two proposed on the same parcel.

Haynes, the development services director, said that Hillview Crossing wouldn’t be affected by the six-month moratorium, since that consideration is well underway.

"But you can see in here … certainly Hillview Crossing brought to light some additional areas for review," Haynes said. "If Hillview Crossing had gone through the subdivision process instead of seeking the TED exemption, all of those issues would have been addressed. The reality is we have been playing catch-up to some degree."

McCormick said while he appreciates the statement that Hillview Crossing wouldn't fall under the proposed emergency amendments, the ordinance doesn’t have any clause stating it isn’t retroactive to projects currently under review.

“I asked the city to explain why the ordinance lacks this language or whether there is some other provision in the zoning regulations which would already cover it,” McCormick wrote in an email to the Missoulian. “(City Attorney) Jim Nugent wrote back quickly and said language could be added to the ordinance to address my concern if the city desires.”

The proposed emergency amendments to the zoning ordinance wouldn’t affect small proposed TEDs of five to nine units, or larger TED projects proposed on lots without landscape or natural resource constraints that are close to existing roads, water and sewer, and that are intended to be developed in a short time frame.

“In other words, the interim ordinance would not affect projects that intend to support the orderly and beneficial development of the city and enhance public health, safety and welfare,” Means wrote. But if that standard isn’t met, the city would be allowed to deny the TED application.

It also allows the city to require evidence, included a complete geotechnical report, that the land isn’t subject to hazards like flooding, landslides, improper drainage and high ground water.

"I think most of what we're doing is clarification in the way we have already managed TED and what's in our regulations," Haynes said. "But I can see additional code language. ... We need to be proactive for the benefit of the development community as well as the greater community of Missoula. It makes sense for us to take the time to take a real hard look at those projects and the regulations and make some revisions to the code."

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