Staff recommends denial of the variance #1375 request based on the variance review criteria detailed in the Summary section of this report.

 

City Variance 1375 – 412 3rd St West – A variance from Section 27-1802.H.3(b.)(1.) as described in Table 27-1802.2 and Section 27-1209.D requiring any fence or obstruction over 30 inches in height above the curb to be outside of clear vision area for an uncontrolled intersection. The clear vision area for uncontrolled 4-way intersections is measured from the point of the intersecting street centerlines, 110 feet in both directions and connecting those end points (Figure 3a of Section 27-1802.3(b).(1)) and Table 27-1802.2. The purpose of the variance is to allow a 6-foot tall chain link fence at the intersection of 3rd St West and Miles Avenue. Tax ID: A15922 

APPLICATION DATA
OWNER: Lorin Peterson
PURPOSE: 6 foot fence in rear yard that encompasses a clear vision area at an uncontrolled intersection.
LEGAL DESCRIPTION: SUBURBAN SUBD, S04, T01 S, R26 E, BLOCK 11, Lots 1 - 2
ADDRESS: 412 3rd St W
SIZE OF PARCEL: 7,000 sq feet
ZONING: NX1- Mixed Residential 1-4 Units (NX1)
EXISTING LAND USE: Residential Single Family
PROPOSED LAND USE: Residential Single Family

SURROUNDING ZONING & LAND USE
NORTH: Zoning: NX1
Land Use: Residential
SOUTH: Zoning: NX1
Land Use: Residential
EAST: Zoning: NX1
Land Use: Residential
WEST: Zoning: NX1
Land Use: Residential Multi-Family

Planning staff notified the surrounding property owners by mail, placed a legal advertisement in the Yellowstone County News, and posted the property with the required sign. The application was also posted on our webpage for current zoning applications. At the time of this report, June 25, 2024, no comments from any surrounding owners were received by staff.

The Board of Adjustment may:

• Conditionally approve the requested variance and adopt the proposed findings of fact for the review criteria as recommended by the Planning staff;
• Approve the requested variance with different or added conditions, or no conditions;
• Deny the requested variance and amend the findings of fact for the criteria;
• Allow the applicant to withdraw the variance request; or
• Delay action on the variance to a future BOA meeting.

Approval or denial of the requested variance will have no financial effect on the Planning Division budget.

Prior to approval, the Board of Adjustment shall ensure that the determinations for variances (Sec. 27-1627.D and E.), as outlined below, have been satisfied:
Section 27-1627.D
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.
This property is unique, due to its adjacency to an alley on the northern side and an uncontrolled intersection to the south.  This results in three clear vision areas that affect the property, the uncontrolled intersection, driveway, and alley. The property which fronts onto 3rd Street West and sits on the northwest side of the lot, faces a challenge in yard fencing due to the necessary clear vision areas dictated by regulations. Clear vision standards have been established to prioritize the safety of all transportation modes at intersections. Even though enclosing the yard with a fence might be difficult, it doesn't lessen the safety concerns at this intersection.

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.
Numerous residences situated on comparable corners have erected fences that comply with the mandated clear vision zones.  At 517 5th Street West, a 30-inch fence is positioned to maintain the clear vision areas from the driveway, alley, and minor street intersection. 412 4th Street West, which is situated on a corner lot at an uncontrolled intersection, erected a 30-inch fence to preserve clear vision areas. 603 Howard Avenue, which is affected by a minor street intersection and alley clear vision areas, has a 30-inch fence surrounding both the front and backyard that adhere to the requirements. 504 7th Street West, also at an uncontrolled intersection, has the side yard garden area fenced with a 30-inch fence.

3) That granting the variance requested will not confer on the applicant any special privilege that is denied by this zoning code to other land in the same district.
The granting of this variance would provide special privilege to the applicant, as clear vision standards have been imposed on various residential properties within the City.  No variances of this type have been reviewed within the immediate vicinity of this subdivision.  Around the City, there have been several variances reviewed for fences within clear vision areas. At 2107 Colton Boulevard, a request for a 4-foot fence constructed without a permit in the driveway clear vision area was reviewed and subsequently denied. Similarly, at 802 Parkway Lane, a variance for an 8-foot fence constructed against the submitted permit within a driveway clear vision area was also denied. However, variances were approved at 2244 Fairview Place and 3014 Shady Lane for replacing 6-foot fences within the driveway clear vision area. The variance approval conditions for 2244 Fairview Place stipulate that the constructed 6 foot fence within the alley clear vision must adhere to future clear vision regulations if the alley is ever developed. 

In 2016, two additional variances related to clear vision were approved: one for Silver Creek Estates and another for 607 4th Avenue North. Both variance applications included privately commissioned engineering studies focusing on the clear vision requirements affecting the respective properties. The variance granted to Silver Creek Estates allowed for a clear vision of 25 feet by 25 feet for a stop controlled intersection, instead of the typical 10 feet along the intersecting street and 75 feet along the collector street at the property lines, or 55 feet along the local street at the property lines. KLJ (Kadrmas, Lee & Jackson) Engineers prepared an engineering study for the City Traffic Engineer for the intersection of 46th St West and Silver Creek Trail and Elk Ridge Trail. The City Engineer accepted this engineering study as sufficient for both intersections. Similarly, the variance for 607 4th Avenue North allowed for a permanent structure over 30 inches in height to encroach up to 4 feet into the required clear vision area, based on an American Association of Highway and Transportation Officials (AASHTO) analysis submitted for the traffic signal-controlled intersection. The City Traffic Engineer reviewed the AASHTO analysis and accompanying drawings, determining the proposed clear vision area to be adequate for ensuring traffic safety at this intersection.

Staff found several properties in the subdivision with fences, hedges, or obstructions in the required clear vision areas. The southeast corner of the uncontrolled intersection at 3rd Street West and Miles Avenue is particularly concerning. Bloedorn Lumber has a 6-foot chain-link fence and stacked construction materials, obstructing the clear vision area. Other properties with encroachments in clear vision areas include 323 Miles Avenue, 310 5th Street West, 418 Terry Avenue, 503 Terry Avenue, 502 Custer Avenue, and 604 2nd Street West, all of which remain non-compliant with Zoning restrictions for clear vision areas.

4) That the granting of the variance will be in harmony with the general purpose and intent of this zoning code and with the Growth Policy.
The 2016 Growth Policy, along with the 2021 Zoning Code crafted to advance its objectives, prioritizes clear vision areas as the main tool in the Zoning Regulations to ensure the safety and visibility for both motorists and non-motorists in these critical areas.  Clear vision area standards are enforced to prioritize and maximize the safety for all users of multimodal transportation at intersections. Encroachments into clear vision areas can create significant safety issues as it may cause unsafe traffic and pedestrian passage at the intersection of 3rd St W and Miles Ave. Safety is specifically called out in the purpose of the Zoning Code within Section 27-102.B, "to promote the interest of health, safety and general welfare."  The Growth Policy and Zoning Code do not support this variance request.

Section 27-1627.E
2) In granting any variance, the Board 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;
Although the recommendation is for denial, Staff has prepared draft conditions to be considered if the BOA makes the findings for approval;

1. The variance is from Section 27-1802.H.3(b.)(1.) as described in the Table 27-1802.2 and Section 27-1209.D, requiring any fence or obstruction over 30 inches in height above the curb to be outside of clear vision area for an uncontrolled instruction. 
2. The variance is limited to Lots 1 and 2, Block 11 of Suburban Sub, generally located at 412 3rd Street West.
3. The fence shall be constructed in substantial conformance to the drawings submitted to the Planning Division with this application. There will be no barbed wire or any type of site obscuring pieces inserted in the fence.
4. The owner will submit a fence permit application within 3 months of Board of Adjustment approval and complete the construction within 6 months of Board of Adjustment approval.
5. All other zoning regulations, except for this specific variance, and any other applicable city regulations apply to the development of the site.
6. Failure to begin or complete actions required by this approval within the time limits set forth shall void this variance.
7. 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, lease-holders, heirs and assigns.

3) The Board 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.
Staff is recommending denial of the variance. However, the draft conditions, if approved, include a timeline of 6 months to complete the project.

4) Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this zoning code in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other properties in the district.
A fence is a permitted use within any zoning district, provided that the height and clear vision requirements are satisfied.  Granting this variance would be providing a special privilege to this individual property owner.