This is a request for a special review for the location of a day care center at 1702 Colton Boulevard on a 16,843 square foot parcel of land in a Residential 9,600 (R-96) zone. The subject property is legally described as Lots 1 & 2, Block 20, Kober Subdivision, 4th Filing. There is an existing home on the property that will be converted for the use of the day care center. The property is owned by Sunday Creek Land Company, LLC and Tom Llewellyn is the agent. The Zoning Commission conducted a public hearing on May 1, 2012, and is forwarding a recommendation of conditional approval on a 4-0 vote.

The Planning Division reviewed the application and recommended conditional approval to the Zoning Commission. The Zoning Commission concurred with this recommendation. Before a recommendation of approval or conditional approval can be made, each special review request must demonstrate conformance with three primary criteria: 1) the application complies with all parts of the Unified Zoning Regulations, 2) the application is consistent with the objectives and purposes of the Unified Zoning Regulations and the 2008 Growth Policy, and 3) is compatible with surrounding land uses and is otherwise screened and separated from adjacent land to minimize adverse impacts. This application conforms to the first criteria, in so far that it meets all the requirements of the zoning district. The location is in one of the zoning districts that allows day care centers by special review approval. The application is conforming to the purposes of the regulations and the 2008 Growth Policy.

The application also conforms to the second and third criteria. The existing development meets all zoning requirements for setbacks, lot coverage, building height and other site specific requirements. The lot is an irregular shaped lot at the signalized intersection of 17th Street West and Colton Boulevard. It has a developed parking lot to the west of the building and a full drive approach on Colton Boulevard. The home and grounds are completely landscaped and the east end of the property is fenced. The day care operator may need to increase the height of the fence to comply with state standards for an outdoor play area. The day care center will not have a detrimental impact on the adjacent land uses and will fit in with the neighborhood. The Planning Division did not receive any letters or phone calls from the surrounding owners.

The Zoning Commission is recommending conditions for this special review based on the approval criteria for special review uses. The Zoning Commission is recommending the following conditions:
 
PROPOSED CONDITIONS
1. The special review approval shall be limited to Lots 1 and 2, Block 20, Kober Subdivision, 4th Filing generally located at 1702 Colton Boulevard. 
2. Any expansion of the main building greater than 10 percent of existing conditions will require an additional special review approval.
3. The owner is allowed to have additional off-street parking as required by the City Engineering Division.
4. The owner will submit a change of use permit to the Building Division within 1 (one) year of City Council approval and before occupancy of the building by the day care center.
5. The day care center is allowed to have 1 (one) freestanding non-illuminated sign on the east end of the property adjacent to 17th Street West. The sign shall not exceed 5 feet in height or 8 feet in length including the support structure. A sign permit shall be submitted to the Planning Division and approved prior to its installation.
6. The day care center shall re-construct the gated access to Soloman Avenue. 
7. The day care center is limited to a maximum of 20 children.
8. These conditions of special review 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. 
9. The proposed development shall comply with all other limitations of Section 27-613 of the Unified Zoning Regulations concerning special review uses, and all other City of Billings regulations and ordinances that apply.

**NOTE** Approval of this Special Review does not constitute approval of a building permit, sign permit or fence permit. Compliance with all applicable local codes will be reviewed at the building permit level if or when such a permit is submitted for review. This application is for a Special Review as noted above and no other request is being considered with this application.

The City Council may accept the Zoning Commission's recommendation or take one of the following actions:
1. Deny the application for a special review use.
2. Delay action on the application for a period not to exceed thirty (30) days.
3. Modify conditions or add conditions to the recommended approval.

There should be no financial impact to the City from the approval of the special review. A building permit application is required and will add fee revenue to the Building Division.

This is a request for a special review to allow a day care center in an existing dwelling at 1702 Colton Boulevard in an R-96 zone. The existing residence was originally used as district offices for the Assemblies of God churches in Billings. Several uses have been attempted since 2001 when the district offices were closed. There was a group day care in the residence at one time but this has been closed for many years. The residence is over 1,700 in living space not including the 624 square foot detach garage. The building was originally constructed for office space and a day care center could be a suitable subsequent use of the property. The agent is representing the owner who has a potential buyer of the property if the special review is approved. A day care center is a child care facility for more than 12 children. Day care facilities for 12 or fewer children are allowed without special review approval in all residential zoning districts. 

The applicant has discussed the provision for off-street parking and any building requirements that may be necessary when the building is converted for the proposed use. The Building Division and Fire Department will require a change of use permit application to ensure life safety of the children in the day care facility.

Property along Colton Boulevard is zoned residential and 17th Street West has a mixture of zoning including R-96, R-60, RP and Public. The property is directly north of the BBWA canal and located at a signalized intersection. Seventeenth Street West is a minor arterial street north of Grand Avenue and Colton Boulevard is a collector street west of 17th Street West. Average daily traffic on Colton Boulevard for 2012 is 4,860 and on 17th Street West about 9,350 trips per day. Soloman Avenue – a dead-end street north of the canal borders the property on the south. Soloman Avenue is 40 feet wide. The city has a sewer line installed in Soloman Avenue and a few adjacent property owners use Soloman to access garages. Prior to 2004, the property had gated access to Soloman Avenue and a full access drive on to Colton Boulevard. The gate and fence has been removed and property now has two full accesses one on each street.

Property to the north and west is zoned R-96 and developed with single family dwellings. Property across 17th Street West is zoned R-60 with duplex dwellings, PD-Rocky Village with townhomes and condominiums, and RP at 17th St West and Parkhill Drive with an office complex. South of the BBWA canal is the Assembly of God church and Fire Station #3.

The Zoning Commission conducted a public hearing on May 1, 2012, and received the staff report and recommendation. The applicant's agent, Tom Llewellyn, presented information to the Zoning Commission. Mr. Caudle of 1720 Colton Boulevard, Scott Emerick of 1736 Colton Boulevard, and Darla Stone of 2201 17th Street West all testified on the application.

Mr. Llewellyn testified that the applicant and the day care center provider reviewed the proposed conditions and have no concerns. He stated there would not be any traffic on Soloman Avenue from the day care center. He stated he is very familiar with day care operations and this should a better use of the property and have less impact than the current rental situation. He stated a day care with 12 or fewer children would not be economically viable but 20 children in a day care center would work well. He stated the building will need some modifications and a buidling permit will be submitted by the new owner. He stated this is a good location for the use.

Mr. Caudle testified he lives next door and he stated during the evening and morning traffic sometimes backs up at the light on Colton Boulevard and may block the driveway to 1702 Colton. He stated there is no left turn bay on Colton Boulevard (west bound) for vehicles waiting to turn into 1702 Colton. He was concerned this could cause a bit of a jam-up during these busy times. He stated he thought the existing building may be too small for 20 children in day care. He stated when the previous day care was in the building, the smell from the garbage was sometimes odiferous since it was only picked up once a week. He stated he was concerned with having a day care right next to the BBWA canal.

Mr. Emerick testified he was concerned with any increase in traffic on Soloman Avenue. He agreed the access from the parking lot should be fenced off - not just gated - and the owner should take out the drive approach on Soloman. He stated Soloman is only a half-street now and the rest of the property is the BBWA Canal. He urged the Zoning Commission to change the condition for installation of a gate to a solid fence and removal of the drive approach.

Ms. Stone asked whether the day care would be a drop-in center or a licensed facility. She stated she would not be in favor of a drop-in day care since they do not have to meet any licensing standards. She was concerned with traffic getting in and out of the center during rush hours. She was concerned with the potential for noise from the outdoor play area. She stated she has had 5 years experience with the tenants in the building and she has called the Police Department a few times for noisy parties. 

Mr. Llewellyn provided rebuttal to the testimony. He stated the day care will be a licensed facility and not a drop-in day care. He stated the buyer and operator is moving from Great Falls and has a lot of experience running day care centers. He stated any noise from the outdoor play area will be a joyful noise. He stated kids playing outdoors is a pleasant noise. He stated the hours for the day care will be from 7 am to 6 pm so any outdoor noise should not effect surrounding owners during the evenings. He stated parents will learn the best way to get in and out of the driveway on Colton Boulevard. He stated he would not be agreeable to removing the drive approach on Soloman because of the cost involved. He had no concern with providing a solid fence at this location. He stated most of the children will be elementary ages with a few pre-school and infants. He stated the operator will ensure garbage is contained and smells are not wafting out into the neighborhood. He stated the operator will ensure the area is properly fenced off from the adjacent canal and street so the children will be safe. He stated the neighborhood will be pleased to get rid of the college-age renters and welcome in a day care center.

The Zoning Commission closed the public hearing and considered the testimony. Commission member Bill Ryan made a motion to forward a recommendation of conditional approval with the conditions as proposed by Planning Staff. The motion was seconded by Dan Wagner and the Commission voted 4-0 to forward the recommendation to the City Council.  

The consistency with adopted plans and policies is discussed in the Alternatives Analyzed section above.