This is a zone change request from Residential 9,600 (R-96) to Residential 7,000 (R-70) on Lot 11, Block 9, Central Acres Subdivision, 5th Filing, a vacant, 10,417 square-foot parcel of land in the 3100 block or Lynn Avenue. A pre-application neighborhood meeting was held on February 10, 2016 at the Sunset Bowl, 1625 Central Avenue. The Zoning Commission conducted a public hearing on April 5, 2016, and is forwarding a recommendation of denial and adoption of the findings of the 10 criteria on a 4-1 vote.

The Planning Division has received a valid protest against the zone change. A valid protest requires the City Council to have a 2/3 majority vote of the members present at the hearing in favor of the zone change in order to approve the request.

Zone Change applications are reviewed using statutory criteria referenced in the Alternatives Analyzed section of this memo. Zone Changes require approval through an ordinance. Zone Changes allow the change from one type of zoning district to another type of zoning – e.g. residential single family to residential multi-family or residential to commercial. A Zone Change cannot have conditions of approval and if approved, permits the owner to use the land for any purpose allowed within the zoning district.

 

City Council may:

• Deny the zone change and adopt the findings of the 10 criteria as recommended by the Zoning Commission;
• Approve the zone change and adopt different findings of the 10 criteria;
• Allow the applicant to withdraw the zone change; or
• Delay action on the zone change request for up to 30 days.

The Planning Division reviewed the proposed zone change and recommended approval based on the staff findings of 10 criteria for zone changes. The Zoning Commission did not concur with the staff findings and voted to recommend denial of the zone change.

The staff found the proposed zoning does give consideration to the surrounding neighborhood character and was compatible with the existing and proposed uses in the area. The staff found the neighborhood has a mixture of housing choices and a two-family dwelling would not be out of character for this area. The staff found the proposed zoning was supported by the city's Infill Policy by making the most efficient use of land where incremental density would be appropriate. The proposed zoning allows either single family or two-family dwellings by right but does not allow multi-family dwellings (3 or more attached units). The proposed zoning would allow the construction of 2 dwelling units whether attached or detached. Construction could be as townhomes, with individual unit owners or as a duplex with 1 owner. The staff found the townhomes and duplexes in the immediate area are well-maintained and fit well with the adjacent single family dwellings.

The Zoning Commission found the proposed zoning and development of a two-family dwelling was not compatible with this block of Lynn Avenue. The Zoning Commission found there were no similar dwellings on this section of Lynn Avenue and a two-family dwelling would be out of character for this area. Prior to making its decision on the proposed zone change, the City Council shall consider the Zoning Commission findings of the 10 criteria:
 
1.   Is the new zoning designed in accordance with the Growth Policy?
 The proposed zone change is not consistent with the following goals of the Growth Policy:

• Predictable land use decisions that are consistent with neighborhood character and land use patterns. (Land Use Element Goal, page 6) 
  The proposed zoning would allow an undeveloped lot to be developed with either a single family dwelling or a two-family dwelling. The zoning code allows the owner to attach or detach the two dwelling units or to construct the dwelling units as townhomes. The proposed zoning is not compatible on this block of Lynn Avenue that is developed only with single family dwellings. The four-plex dwellings at the east end of the block are in a separate subdivision and were annexed and developed after the single family homes were built to the west. This part of the Central Acres Subdivision is only single family dwellings.


• The Infill Policy encourages development of vacant property within the City limits with emphasis on housing choice and efficient use of existing City infrastructure and services. The increment in density for the only vacant lot on this block of Lynn Avenue is not warranted and does not give due consideration to the existing pattern of development.

2.   Is the new zoning designed to secure from fire and other dangers?
The new zoning requires minimum setbacks, and building separations. The setbacks and building separations in the existing and proposed zoning are identical. The new zoning, as do all zoning districts, provides adequate building separations and density limits to provide security from fire and other dangers.

3.   Whether the new zoning will promote public health, public safety and general welfare?
Development of the vacant land in the City will promote the public health and safety of the adjacent residential neighborhood by providing full development along the 3100 block of Lynn Avenue. Vacant lots tend to detract from adjacent property value and serve as a cut through for pedestrian traffic. Development of the lot could happen with the existing zoning. The proposed zoning does not promote the general welfare of the adjacent homeowners by allowing a distinctly different housing type in the middle of the block of single family dwellings.

4.   Will the new zoning will facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirement?
Transportation: The proposed zoning and subsequent development will not have an impact on Lynn Avenue. Off street parking must be provided at the time of construction as well as completion of the street improvements such as sidewalks.   
Water and Sewer: The City will provide water and sewer to the property. There is an existing sewer stubbed into the property from the alley. A water service connection will need to be constructed from Lynn Avenue to the new dwelling(s). There should be no additional impact to the system from the proposed zoning.   
Schools and Parks: There may be a limited impact to schools from the proposed zone change. Residential development is an allowed use in both the current zoning and the proposed zoning.     
Fire and Police: The subject property will be served by city public safety services. The Public Safety departments have no concerns with the zone change.

5.   Will the new zoning provide adequate light and air?
The proposed zoning provides for sufficient setbacks to allow for adequate separation between structures and adequate light and air. The setbacks, lot coverage and building height are the same for the existing and proposed zoning districts.

6.   Will the new zoning effect motorized and non-motorized transportation?
The new zoning may have a minor effect on vehicle and pedestrian traffic. A single family dwelling in general generates 8 to 10 traffic trips per day. This traffic includes trips by the dwelling occupants as well as service traffic trips such as mail delivery.

7.   Will the new zoning will promote compatible urban growth?
The new zoning does not promote compatibility with urban growth. The proposed zoning will allow one, two-family dwelling in the middle of a block of single family dwellings. 

8.   Does the new zoning consider the character of the district and the peculiar suitability of the property for particular uses?
The proposed zoning does not consider the character of the district and the suitability of the property for development of a two-family dwelling. 

9.   Will the new zoning conserve the value of buildings?
The property is currently vacant. The value of existing buildings will increase when the property is developed. The property could be developed with a single family dwelling.

10. Will the new zoning encourage the most appropriate use of land throughout the City of Billings?
The proposed zoning will permit a two-family dwelling that is dissimilar to the adjacent single family dwellings. This would not encourage the most appropriate use of land at this location.

If the zone change is denied, the land could continue to remain vacant or it could be developed with a single family dwelling. The City tax base would not be affected by the land remaining vacant unless the property is not maintained. Property tax values have remained stable and increasing on this block of Lynn with a few exceptions for property on the south side of Lynn Avenue. These values may be less stable due to the vacant land on Central Avenue that only recently has developed. City fees based on zoning would increase slightly if the zone change was approved.

This property is the only un-developed lot on the 3100 block of Lynn Avenue. The lot to the east, Lot 12 at 3116 Lynn Avenue, was in common ownership with the subject property prior to Mr. Ouren's purchase in 2009. The property has remained vacant except for the occasional prior use by the adjacent owner for storage of vehicles, boats, outdoor equipment and vehicles. A sanitary sewer line is stubbed into the property from the alley to the south. The surrounding zoning is R-96 to the east, west, and north of the subject property. South of the property across the alley is zoned NC and is developing as a retail center for neighborhood services. Property at the east end of this block is zoned R-60 and these lots are developed as four-plex townhomes.

Mr. Ouren conducted a pre-application meeting in February and several surrounding owners attended the meeting. The primary concern expressed by the surrounding owners is the number of non-owner occupied residences in the area. The zoning code does not require the occupancy of any dwelling unit by the owner of the property. The surrounding property owners have submitted a protest petition against the zone change. The number of signatures constitutes a valid protest of this zone change. A zone change with a valid protest cannot be approved except by the favorable vote of two-thirds ( 2/3) of the present and voting members of the City Council.

In general within the city limits, approximately 60% of dwelling units are owner occupied. On this block of Lynn Avenue, 10 of the 13 single family dwellings are owner occupied, or about 75% of the dwelling units. If the zone change is approved on this lot and 2 dwelling units are constructed and occupied by renters, the percentage of owner occupied units would drop to 65%. This is still within the same general character of most city neighborhoods. The development of a duplex or a townhome on the property would be a distinctly different housing type in the middle of the block of single family dwellings.

The neighborhood is near the intersection of 2 principal arterial streets - Central Avenue and 32nd Street West. The intersection has been improved in the past 5 years to handle the increasing traffic through this intersection, including dedicated left turn lanes and signals. The most recent traffic counts at this intersection are 27,821, with 32nd Street West having a higher count than Central Avenue. The City intends to complete arterial street improvement on Central Avenue from 35th St West to Shiloh Road during the next fiscal year (FY17). Signal timing along the 32nd Street West corridor from King Avenue West north to Poly Drive is also being addressed. Lynn Avenue has a stop controlled intersection with 32nd Street West just north of the signalized intersection. To the east, Lynn Avenue intersects with 31st Street West at an uncontrolled 3-way intersection. Lynn Avenue at this point is not a continuous street and the lots to the east would not allow a continuation of Lynn Avenue in the future.

The lot is large enough to support 2 dwelling units at nearly 1/4 of an acre, however similar sized lots on this block of Lynn Avenue are developed with single family dwellings. One block to the north is R-70 zoning on the north side of St John's Avenue. There is a mixture of single family and two-family dwellings in this area. On 31st Street West on the west side are 4 four-plex dwellings between Central Avenue and St. John's Avenue in an R-60 zone. These four-plexes were built in a different subdivision and annexed and zoned after the single family homes on Lynn Avenue were constructed.

Two-family dwellings built as townhomes can have 2 separate owners and generally have more property value than a two-family dwelling built as a simple duplex with one owner.  The most recent set of townhomes built north of Lynn Avenue as two attached units has each unit valued at more than $192,000. These taxable values are similar to surrounding single family homes. Older duplexes with one owner in this neighborhood are valued in the $225,000 to $250,000 range. The townhomes in the four-plex at the intersection of 31st St West and Central Avenue are valued at $138,000 to $150,000 for each unit. The 2 end units have higher taxable value than the center 2 units.

 

The Zoning Commission conducted a public hearing on April 5, 2016, and received the staff recommendation and testimony from the applicant and surrounding property owners. Based on this testimony and findings of the Zoning Commission, the recommendation is to deny the requested zone change. The Planning staff recommended approval based on their findings of the 10 criteria for zone changes. The staff found there is not a significant impact on the surrounding neighborhood and development of a mid-block vacant lot in this older subdivision would provide stability to the surrounding property. The Zoning Commission did not concur with this finding.

Mr. Ouren, the applicant and owner of the property since 2009, testified in favor of the request. He stated he has actively offered the property to builders for construction of a single family dwelling. He stated it does not make economic sense to most builders and developers to construct a new single family dwelling that would have much greater value than surrounding older dwellings. He stated large lot single family dwellings are not as attractive to buyers in the current market, and a new home for sale at $300,000 in this neighborhood would not sell. He stated most builders were interested in the lot if it could have a duplex or townhome since this would make sense financially and market-wise in this neighborhood. He stated he understood the concerns of the neighbors but agreed with the Planning staff assessment and findings of the 10 criteria. In response to a question from the Commission, Mr. Ouren stated he would not have alley access from the duplex or townhome. He stated each unit would have a 2-car garage and 2 driveway parking spaces.

Frank Dahl of 3134 Lynn Avenue, Bruce O'Banion of 3121 Lynn Avenue, and Gerald Voto of 3128 Lynn Avenue, all testified in opposition to the proposed zone change. Their concerns were the renting of additional dwellings on the street would drive down the quality of life and further crowd the on-street parking. They agreed that a $300,000 home on a block of $180,000 to $200,000 homes would not make economic sense, but a smaller more modest home would fit in well. They stated a two-family dwelling would not be compatible in the middle of the block of single family dwellings. Mr. Voto stated he is not against zone changes and supported the zone change across the alley to commercial. Mr. Voto stated he has lived in his home since 1996 and understands the challenges of being a landlord. Mr. Voto stated the neighborhood already has enough rentals and housing choices and the area here should remain just single family dwellings.

Mr. Ouren stated in rebuttal even a modest size home would sell for more than the highest valued home on the block so development of this lot would not occur under the current zoning.

Commission member Mike Boyett moved to recommend denial of zone change based on the finding that the proposed zoning and use was not compatible with the existing single family homes, was not an appropriate development in the middle of the block, and is inconsistent with the area. Commission member Dennis Ulvestad seconded the motion. Commission member Michael Larson spoke in opposition to the motion. Mr. Larson stated that each request for zone change deserves an affirmative motion to prevent confusion when members voted. He stated his past experience as a zoning commission member and City Council member was a motion to deny a request did not allow a full and open debate on the issues and confused the voting. He stated members can still vote against the zone change by voting no on a positive motion. The Commission conducted a roll call vote on the motion to recommend denial of the zone change. The Commission voted 4 in favor and 1 opposed to the motion. Commission member Michael Larson cast the no vote.

The Consistency with Adopted Policies or Plans is discussed in the Alternatives Analyzed section above.