This is a Special Review request to allow multi-family dwellings in an R-60 zone on property located on the north side of Avenue E between 16th Street West and 17th Street West. The property is legally described as Lots 1 through 9A of Block 10, Partington Park Subdivision, 8th Filing and is a 2-acre parcel of land. The property is owned by McDonald Land Holdings, LLC and the agent is AT Architecture. The applicant proposes to construct two 4-plexes and four 6-plex multi-family buildings (32 dwelling units). The former Plaza Pool Apartments consisted of 10 duplexes (20 dwelling units). The Zoning Commission conducted a public hearing May 7, 2013, and is forwarding a recommendation of conditional approval on a 4 to 1 vote.

The Planning Division reviewed the application and recommended conditional approval to the Zoning Commission. The Zoning Commission concurred with this recommendation and modified 2 of the proposed conditions and added 1 condition. 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 is in a district that allows multi-family dwellings by special review. The proposed dwellings meet the required setbacks, building separations, lot coverage maximum and building height. The building exterior and roof style can be found in neighborhoods throughout the city. The most recent example of this building style is in the 800 block of Avenue E, the Executive Townhomes. The applicant is proposing to use the alley as a primary access for 18 of the dwelling units. The buildings will be the same construction style with the garage entrances on the alley and the front doorways facing the alley. The applicant is proposing to pave the alley. Landscaping is proposed for the remainder of the site. The application is conforming to the purposes of the regulations, the 2008 Growth Policy and the Billings Infill Policy (December 2011).

The application also conforms to the third criteria and conditions of approval are recommended to mitigate any potential impacts to surrounding property. The proposed buildings are set back from all surrounding existing structures but are 2-story structures compared to the single-story homes to the north. Staff is recommending a condition to help mitigate the bulk and mass of the structures as seen from the single story homes to the north. The buildings do not exceed lot coverage and meet the required front, side, and rear setbacks. The surrounding owners have expressed concern with the maintenance and appearance of the new development based on their experience with the previous development, the Plaza Pool Apartments. Staff is recommending several conditions intended to address these concerns.

The proposal is consistent with goals of the 2008 Growth Policy and the Billings Infill Policy, specifically the recommendation to encourage re-development of under-utilized property, encouraging compatible uses and avoiding leapfrogging development beyond city services. Planning staff recommended conditions for this special review based on the approval criteria for special review uses. The Zoning Commission modified 2 of these proposed conditions and added 1 condition. The modified conditions are #6 and #7 and the added condition is #12.

PROPOSED CONDITIONS
1. Lots 1 through 9A of Block 10, Partington Park Subdivision, 8th Filing generally located at 1802 16th Street West.
2. The special review approval is for the construction four 6-plex dwellings and two 4-plex dwellings for a total of 32 dwelling units and no other use or development configuration is intended or implied by this approval.
3. Any expansion of the proposed buildings or off-street parking greater than 10 percent of what is shown on the submitted site plan will require an additional special review approval.
4. All exterior lighting, including security lighting above garage doors, shall have full cut- off shields so no part of the fixture or lens projects below the cut-off shield. The maximum height of any light pole in the outdoor areas shall be 15 feet above grade. Exceptions to this requirement are allowed for porch or entry doorway lighting.
5. The proposed new drive approaches shall be reviewed and approved by the City Traffic Engineer.
6. The applicant shall consult with adjacent property owners north of the alley to coordinate the timing of the alley improvements. The applicant/owner will replace any or all fencing on the north side of the alley that may be damaged during construction activities. The adjacent property owner may choose not to have fencing replaced or repaired by the applicant. If the adjacent owner agrees to allow the fencing to be repaired or replaced by the applicant/owner, the adjacent owner may choose any style or type of fencing material allowed by the zoning regulations for the new or repaired fencing.
7. Construction or demolition activity will occur in conformance with City Code Chapter 17 - Noise. 
8. Any new sign will require sign permit approval from the Planning Division. The property will be allowed one (1) monument style sign not larger than 12 square feet in sign area not including the support structure and may have external illumination. No banner signs will be allowed on the exterior of any of the buildings or on the property.
9. The applicant/owner will install 24 trees of at least 8 feet in height and 1.5 inch caliper at the time of planting. The trees will be installed in substantial conformance with the submitted site plan. The trees shall not be any of the following species: Carolina poplar, Canadian poplar, other populus subspecies including any variety of aspens, elms, lombardy poplar, silver leaf poplar, weeping willow, or box elder. The trees will be continuously maintained and replaced as necessary by the owner.
10. Any centralized solid waste storage shall be enclosed by a wall on 3 sides and a closing gate or gates. The wall and gates for the solid waste storage shall be similar or complimentary in color to the adjacent buildings and shall be sight-obscuring. The wall and gates shall be tall enough that no part of the interior dumpster(s) are visible from the outside.
11. The site will be developed in substantial conformance with the submitted site plan including landscaping, parking and building locations.
12. The applicant will place pedestrian crossing signs in the alley where it intersects with 16th St West and 17th St West so traffic is aware of pedestrians on the adjacent sidewalks.
13. 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.
14. 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.

If the special review use is approved, additional property value will be realized for this parcel of land. This will expand the tax base in the City of Billings. The applicant will install at their expanse replacement of city infrastructure including new curbwalk on Avenue E, accessible ramps at intersections, new sewer line in the alley and full pavement of the alley between 16th St West and 17th Street West. The re-development of the property will reduce the need for the city to extend city services to undeveloped land for similar residential housing.   

This is a request to allow the development of multi-family dwellings in an R-60 zone. The city requires a special review for this use in the R-60 zoning district. The applicant is proposing to develop four 6-plexes and two 4-plexes for a total of 32 dwelling units on the 2 acre property. The Plaza Pool Apartments, the previous development, consisted of 10 duplex dwellings (20 units) but is in the process of being demolished. The duplexes were originally constructed in 1965 and were rental apartments. The Sheraton Arms Condominiums are on the south side of Avenue E across from the subject property. These condominiums consist of 60 dwelling units in 8 buildings on a 2.8-acre parcel constructed in 1968. The neighborhood to the north across the alley is primarily single family dwellings constructed in 1961. These homes are single story homes on lots between 7,900 and 11,200 square feet. The proposed multi-family dwellings will be 2-story attached units with building divisions centered on the garage spaces. The dwelling units will be 2-bedroom dwellings with 2 off-street parking spaces (64 total off-street parking spaces) for each dwelling. The ground floor will consist of a living room, kitchen, laundry, half-bath and utility spaces. The upper story will be 2 bedrooms and a full bathroom. The ground floor will have an entrance from the garage into the living space and a front door facing either Avenue E or the alley. The applicant proposes to pave the existing alley. Solid waste service is proposed to be on-site enclosed dumpsters with collection from the alley. The applicant is exploring other solid waste collection options including curb side collection for the buildings facing Avenue E and alley collection for the units facing the alley.

The zoning surrounding the site is mixed with R-70 to the north, R60 to the east, CC and RMF-R to the south and RP to the west. The area also is a mixture of development including McFiny’s convenience store, a hair salon and Carmel Cookie Waffle at 17th St West and Avenue E, a professional office building on the west side of 17th Street West, single family homes to the north, the Sheraton Arms Condos to the south, and multiple duplexes to the east. The development pattern has not changed in the past 50 years in this neighborhood. The West Park Plaza 1 block to the south, has undergone recent re-development and a plan is moving forward to develop multi-family dwellings on the northwest corner of the property. Avenue E is a neighborhood street and provides on street parking for the residents and visitors. Seventeenth Street West is a minor arterial street. According to 2013 traffic counts, 17th Street West carries about 9,000 vehicle trips per day. The posted speed limit on 17th Street West is 35 mph and the intersection with Avenue E is a two-way stop controlled intersection. During peak traffic times, turning movements from Avenue E can be delayed. The proposed increase in the number of dwelling units – 12 additional units – may add up to 96 additional vehicle trips per day to the area traffic. The added traffic should not decrease the level of service at the adjacent intersections.

The Zoning Commission conducted a public hearing on May 7, 2013 and received the staff recommendation and testimony from the applicant, Greg McDonald of McDonald Land Holdings, LC,  and the agent, Travis McDowell of AT Architecture. The Zoning Commission also heard testimony in favor of the application from Jerry Jones, of Jones Construction, Jane Lukas Penney, liaison for the owner, Tom Mutchler of Rainbow Property Management, and Lance Egan of Prudential Floberg Realty. The Zoning Commission received testimony in opposition to the application from Lester Pust of 1817 17th St West, Terry Padgett of 1632 Avenue F, Susan Barrow of 1546 Avenue F, Brenda Binstock of 1636 Avenue F, Len Richards of 1801 16th St West, Carla Johnson of 5315 Rustic Ave (unit owner in Sheraton Arms Condos), and Michelle Cormier Lee of 1616 Avenue F. The Zoning Commission also received 6 letters of support from surrounding business owners. 

The applicant and agent testified the project was intended to be less dense than permissible with a special review and the buildings less than the maximum height of 34 feet. The proposed 6-plexes and 4-plexes will have a maximum roof height of 24 feet and the total number of units is proposed at 32 instead of the maximum possible of 40 units. The agent, Travis McDowell, stated he has met with the surrounding neighbors and heard their concerns with the proposed development. He is discussing alternative trash removal and collection with the City's Solid Waste Division. He stated each unit will have 2 off-street parking spaces and there is on-street parking on Avenue E and 16th St West. Mr. McDowell stated the applicant is comfortable with the conditions of approval except Condition #6 concerning the fencing for the property on the north side of the alley. He stated the owner is willing to replace all fence that may be damaged during construction but not undamaged fences. Mr. McDonald stated the intent is to build a higher-end apartment complex that will attract long term tenants. He stated this would be a benefit to the surrounding neighborhood and add value to other property. 

Jane Kukas Penney stated she canvassed the neighborhood for the owner at the beginning of April to let everyone know about the pending re-development. She stated she handed out fliers with the elevation plans and an explanation of the proposed development. She stated many people were very supportive of the demolition and she presented the business owner letters of support to the Zoning Commission. 

Tom Mutchler of Rainbow Property Management stated his firm is the management company for the apartments and will continue to handle the rentals in the future. He stated the new units will rent for $900 to $1,200 per month where the old units rented for about $650 per month. He stated the old units were becoming a hazard. He stated demand for rentals in centrally located areas such as this property were in high demand and he expected the vacancy rate to be very low for the new units. 

Lance Egan of Prudential Floberg Real Estate stated he was asked to give his professional opinion on the property value impact of the new multi-family development on the existing neighborhood. He stated it was his opinion the adjacent values will increase with the new development. He stated the new multi-family units should not negatively effect the marketability of the single family homes on Avenue F. He stated there are several 4-plex town homes in the area that have sold individual units from $160,000 to $225,000 so there should not be a negative effect on home values in the area. He stated the design and site development will be compatible with the surrounding neighborhood. 

Lester Pust of 1817 17th Street West testified in opposition of the request. He stated he was opposed to the alley access for 16 units behind his house. He stated his house is the lot on the corner of 17th St West and Avenue E and is right on the alley where the new units will have access. He stated the current management and response to complaints has been very poor and he does not believe this will change with the new units. He stated he was a retired Billings Police Officer so he understands property management issues. Mr. Pust stated he has lived at 1817 17th St West since 1979. He stated there was a complaint with an overgrown bush on the apartment property near the alley intersection with 17th St West. He stated the management never responded so the city had to trim the bush and send the owner a bill for the work. He stated the owner never told them there would be alley access for 16 of the 32 units. He stated the previous tenants always used the residential barrels on the north side of the alley instead of their own dumpsters on the south side of the alley. He stated the City's Solid Waste Division had to send letters to all the tenants to get them to stop. Mr. Pust stated there used to be a school crossing at Avenue F and 17th St West but this was taken out when the city signalized Parkhill Drive and 17th St West. He stated lots of school kids still cross at Avenue F and Avenue E to get to Rose Park School. Rose Park School entrance is at the dead end of Avenue E and most kids will not walk 2 blocks north to the traffic signal. Mr. Pust stated the owner should have all the units access off Avenue E and not off the alley. He stated 20 units on this 2 acres is enough and he saw no reason why 32 units are needed. He stated the current activity starts way before 8 am, sometimes as early as 6:15 am. He stated the owners have never complied with any city rules and regulations.

Terry Padgett of 1632 Avenue F testified against the application. He stated he has lived at 1632 Avenue F for 17 years but moved here from Sioux Falls, SD. He stated he investigated what other similar cities might do to review such a proposal. He stated he talked with an engineer in the Planning Department of Sioux Falls, SD who stated the alley access issues were a concern for public safety. He stated the engineer would have concerns about proper addressing and emergency services finding one of the units off the alley. He stated the engineer would recommend the Fire Department be involved in the review. Mr. Padgett stated the demolition and site work taking place already is violating the city noise ordinances so the owner clearly has a disregard for the neighbors to the north. He stated there have always been problems with the tenants such as loud parties and criminal activity. He stated if the project is approved it should only have access from Avenue E and not the alley. 

Susan Barrow of 1546 Avenue F testified against the project. She stated she has lived in the neighborhood since 1971 and has witnessed almost the entire life cycle of these apartments. She stated the apartments have had problem tenants almost from the beginning. She stated the proposed buildings will only have 15 feet between them for the residents to have outdoor activity. She stated this is much too close. She stated the open area on the lots would be much smaller than similar development in the area. She stated there is concern with keeping the clear vision areas at the intersections and the alleys open so people will be safe walking on the sidewalks. She stated there is no need for the additional density when the West Park Plaza will be putting up 96 dwelling units just 2 blocks south of this location. She stated her biggest concern was the alley access for 16 of the 32 units. 

Brenda Binstock of 1636 Avenue F testified against the project. She stated she has lived here for 13 years  and has concerns with the proposed alley access. She stated she did not want to have to pay the additional cost to dig up pavement in the alley if she needs to replace a sewer line in the future. She is concerned with pedestrian safety in the area since 2 children have been struck by cars while in the crosswalk at 17th St West and Parkhill Drive in the last 2 years. She stated the additional 96 vehicle trips per day estimated by the city will add to the traffic danger in the area. She stated the reason she lives at 1636 Avenue F is because of her large back yard and the privacy it affords her family. She stated that granting alley access for these new units will destroy the value of her backyard since it will no longer have the same privacy. She stated the owners never consulted the neighbors before they submitted their application. 

Len Richards of 1801 16th Street West testified in opposition to the application. Mr. Richards stated he has lived here since 1981 and he was opposed to paving the alley. He stated this will turn the alley into a street. He stated people already speed through the alley and he witnessed 2 school kids almost get hit by a car coming out of the alley on to 16th St West. He stated if the alley is paved, it should be widened out and the clear vision areas kept open.

Carla Johnson of 5315 Rustic Lane testified in opposition to the application. She stated she was a unit owner in the Sheraton Arms Condos across the street and was very concerned because of the poor management and maintenance of the property. She stated this will likely continue. She stated the site plan did not appear to have enough off-street parking for the tenants and their guests. She stated that while the owner expects to get young professional tenants, units could be rented to college students who would then take up all the the on-street parking. She stated she was concerned with the lack of open area on the site. She stated the owners should re-design the property to provide more off-street parking and more open space. 

Michelle Cormier Lee of 1616 Avenue F testified in opposition to the application. She stated she was the resident who wrote the letter to the Zoning Commission. She stated all the neighbors on avenue F signed the letter. She stated the owner did tell everyone the number of units would be 32 and the old apartments would be torn down. She stated the owner did not let the neighbors know the alley would be providing access for 16 of the 32 units. She stated providing alley access would turn this alley into a city street and would eliminate the quiet enjoyment of their back yards. She stated she agreed with all of the previous concerns stated by her neighbors. She stated the alley will become the private property of the apartments and any rights they used to have to alley will be pushed out. She stated many times she has used the alley to get materials in an out of her back yard for home repairs. She stated if the alley is paved and access for 16 units is provided, using the alley for home repairs will become impossible. She stated it is depressing to lose the privacy of their back yards. She stated if the site needed a second access then the owner should put in their own carriage way and leave the alley alone. 

Travis McDowell provided rebuttal testimony. He stated the owner could build duplexes on the property with alley access and this would not require special review. The alley access requires the alley to be paved even for single family or duplex dwellings. He stated the owner considered many different site plans before settling on the one presented. He stated if the owner re-designed to only have Avenue E access, the buildings would have to be much taller. He stated he has consulted with the Fire Department about the addressing and access for the new units. He stated Bill Tatum, Deputy Fire Marshal, will be in charge of the addressing and has no concerns with the access or the addressing. Mr. McDowell stated the city requires every multi-family dwelling with 2 bedrooms to have 1.5 off-street parking spaces. The owner is providing 2 off-street parking spaces for each 2-bedroom dwelling - 33% more than is required. He stated no parking in the alley will be allowed but each unit will have a full-depth parking space off the alley in addition to the 1-car garage for each unit. He stated the owner has already had a master plan review meeting with the city and many issues have been resolved. He stated the paving in the alley will not hinder or make sewer repairs more expensive. He stated most of the city does have paved alleys so tearing up pavement to replace sewer lines is not an issue. He stated the owner is also concerned with the safety of children in the area. He stated the owner will work the city staff to ensure all driveways, alleys and intersections are clear for pedestrian safety. 

The Zoning Commission closed the public hearing. Member Bill Ryan made a motion to recommend conditional approval to the City Council with an added condition the owner place pedestrian crossing signage at the alley and street intersections. The motion was seconded by member Dan Wagner. Member Barbara Hawkins made a motion to amend Condition #6 concerning fences on the north side of the alley. The motion was to remove language allowing all residents to have fencing replaced by their choice. The motion was seconded by Bill Ryan. The motion to amend condition #6 was approved 5-0. Mike Boyett made a motion to amend Condition #7 to change the wording to allow the owner to follow city adopted code at Chapter 17. The motion was seconded by member Bill Ryan and approved on a 5-0 vote. Chairman Leonard Dailey, Jr. called the question on the main motion with amended conditions. The Commission voted 4 in favor a 1 opposed (Mike Boyett) to recommend conditional approval.  
 

The consistency with adopted policies and plans is discussed in the alternatives analyzed section above.