County Variance 298 – 2133 East Echo Drive – Section 27-1009.D(1) Max footprint of Detached Accessory Structure - A variance from 27-1009.D(1) requiring a maximum footprint of a detached accessory structure of 3,000 square feet to allow a footprint of 3,600 square feet in a Rural Residential 1 (RR1) zone, on C/S 1175, Parcel 6B, a 1.05-acre parcel of land. The purpose of the variance is to allow a completed 3,600 square foot shop building to remain in place. Tax ID: D05120.  Presented by Karen Husman, Planner I.

Planning Staff has reviewed this application and is forwarding a recommendation of denial based on the determinations for review within this report.

OWNER: Jared & Kareasa Busch
PURPOSE:  Detached structure 3600 sf (600 sf over max allowed)
LEGAL DESCRIPTION: C/S 1175, Parcel 6B
ADDRESS: 2133 East Echo Drive
SIZE OF PARCEL: 1.05 acre
ZONING: RR1
 EXISTING LAND USE: Residential
PROPOSED LAND USE: No change

None

See attachments.

This is a request for a variance from 27-1009.D(1) requiring a maximum footprint of a detached accessory structure of 3,000 square feet to allow a footprint of 3,600 square feet.  The property owners have requested this variance to allow an existing building they have constructed stay in place. The variance request is the result of a County Code Enforcement complaint filed after the building was mostly complete. A Zoning Compliance Permit should have been submitted and approved through the City-County Planning Division for the building plans, which would have directed the owner to the size limitations for detached accessory structures in the RR1 zoning district. The applicant submitted a Zoning Compliance Permit application on May 10, 2023, and on May 12, 2023, the applicant was notified through the permit portal there were corrections requiring the building size to be reduced to 3,000 square feet in order to approve the permit.  On May 31, 2023, the applicant contacted our office inquiring about the status of the permit, and was informed that they needed to reduce the size of the building to 3,000 square feet, or they may apply for a variance to allow the additional 600 square feet of structure. The application for a variance was received on July 24, 2023.

Staff did not receive any comments from other departments or any of the property owners notified within the 150 foot notification area surrounding the property.  Staff has had one concerned neighbor just outside the 150 foot notification area that was concerned about the size and height of the structure as well as the access coming off of Hawthorne Lane, a City right of way (comments in attachments).  The applicant has obtained a permit to access Hawthorn lane from the City of Billings Public Works Department.  No other comments were received.

The Board of Adjustment was scheduled to meet on September 14, 2023, but did not have a quorum, so the meeting was not able to convene.  The application was postponed until the meeting on October 12, 2023.

The Board of Adjustment shall make the following determinations prior to granting a variance:

The Per Section 27-1626(D); Board of Adjustment shall make the following determinations prior to granting a variance:
1. That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district;

There are no special circumstances that exist which are peculiar to the land.The applicant has not stated a hardship with the property other than they did not know there was a restriction on the size of a detached structure and did not know they needed a Zoning Compliance Permit until after construction had started. They stated they also needed additional storage for vehicles and campers, etc. The applicant did not apply for a Zoning Compliance permit until they had received notice from the Code Enforcement department regarding the violations (the size of the shop and the lack of an approved permit). The detached garage could have been built to meet the size allowed by the zoning regulations. Although there have been several variances approved in Yellowstone County for detached accessory structures larger than the maximum allowed, the circumstances of those variances are not similar to the variance requested. There have also been several variances denied in the county for larger garages with similar circumstances. Through staff research, there are not any other detached structures that are larger than allowed under the code in this subdivision.  

2. That a literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other tracts in the same district;

The literal interpretation of the provisions of this chapter will not deprive the applicant the ability to construct a detached garage in conformance with the zoning regulations. Detached garages of 3,600 square feet do not exist within this subdivision or in nearby subdivisions with or without zoning variances.This variance would allow the applicant special privileges that are not allowed under the provisions of this Chapter. Other lots in this subdivision have developed as defined by the zoning code. As stated in 1 above, the detached garage could have been built to meet the size allowed by the zoning regulations. Although there have been several variances approved in Yellowstone County, the circumstances of those variances are not similar to the variance requested. There have also been several variances denied in the county for larger garages. The applicant did not apply for a Zoning Compliance permit until he had received notice from the Code Enforcement department regarding the violations (the size of the shop and the lack of an approved permit). There are not any other detached structures that are larger than allowed under the code in this subdivision.

3.That granting the variance requested will not confer on the applicant any special privilege that is denied by this Chapter to other land in the same district;

Granting this variance would confer a special privilege to this applicant as there are no similar sized detached garages in this subdivision. Similar to 1 and 2 above, although there have been several variances approved in Yellowstone County, the circumstances of those variances are not similar to the variance requested. There have also been several variances denied in the county for larger garages with similar circumstances. The applicant did not apply for a Zoning Compliance permit until he had received notice from the Code Enforcement department regarding the violations. There are not any other detached structures that are larger than allowed under the code in this subdivision and surrounding area.

4. That the granting of the variance will be in harmony with the general purpose and intent of this Chapter and with the Growth Policy;

Granting the variance is not in harmony with the general purpose and intent of the zoning regulations and the Growth Policy. Oversized detached garages that do not meet the maximum size restrictions in place do not reflect the purpose and intent of this Chapter and with the Growth Policy. The height and bulk of the detached structure is out of character with the surrounding residential properties and has a larger footprint than the existing home on the site.

Per Section 27-1626 (E): The following also apply:
1. Whenever the County Board of Adjustment grants an application for a variance, the minutes shall specifically state the criteria upon which the variance is granted.

2. In granting any variance, the BOA may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of this Zoning Code.  
Staff has no conditions with a recommendation of denial, however if the variance is approved, staff has the following draft conditions prepared.

1. The variance from Section from 27-1009.D(1) requiring a maximum footprint of a detached accessory structure of 3,000 square feet to allow a footprint of 3,600 square feet in a Rural Residential 1 (RR1) zone. The purpose of the variance is to allow a completed 3,600 square foot shop building to remain in place. No other variance is intended or implied with this approval.
2. The variance is limited to n C/S 1175, Parcel 6B, a 1.05-acre parcel of land, generally located at 2133 East Echo Drive.
3. The applicants will complete construction within one year of BOA approval.
4. The applicant shall meet all other state and county code requirements with the exception of this variance.
5. These conditions of variance approval shall run with the land described in this authorization and shall apply to all current and subsequent owners, operators, managers, leaseholders, heirs and assigns.

3. The BOA shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit set shall void the variance.

No time frame is required with a recommendation of denial. If the Board chooses to approve the variance request, the recommended time limit is identified above in criteria number 2 as item number 3 which requires one year to complete construction.

4. Under no circumstances shall the BOA grant a variance to allow a use not permissible under the terms of this chapter in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other property in the district.

Approval of this variance will not allow a use that is restricted under the terms of this chapter. The “use” itself of a detached residential garage is allowed in the district.

Planning Staff has reviewed this application and is forwarding a recommendation of denial based on the determinations for review within this report.