This is a special review request to allow the addition of a 320 square-foot outdoor seasonal patio on the public sidewalk adjacent to Doc Harper’s in the Central Business District (CBD), on Lots 7-12 and a fraction of Lot 6, Block 93, Billings Original Town, Unit 2 of the Babcock Building. The Zoning Commission conducted a hearing on April 5, 2016, and is recommending conditional approval.

Special Review applications are reviewed using criteria referenced in the Alternatives Analyzed section of this memo. Special Reviews do not change the zoning of a property. They are tied to specific uses that are permitted in a given zoning district but are subject to a review by the City prior to the use being allowed. Special Review requests, unlike Zone Changes, may be conditioned to mitigate potential impacts from the use on the subject property or surrounding properties.

 

City Council may:

• Approve the request
• Conditionally approve the request
• Deny the request
• Allow the applicant to withdraw the request
• Delay action on the request for up to 30 days

The Planning Division reviewed the application with staff and other City departments, including Engineering and Parking, 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) the application 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 because it is within the CBD zoning district where an outdoor patio with service of alcohol may be allowed by special review. The proposal meets all other zoning requirements within the CBD. The application also conforms to the second and third criteria. The zoning regulations adopted by the City Council have designated several zoning districts where outdoor patios may be allowed where alcohol is served. The CBD zone is one of those districts. The adjacent properties are not primarily residential and the have similar customer and employee traffic. There are several apartments above ground floor businesses in this area, so restrictions on outdoor events on the patio are proposed. The proposed seasonal outdoor patio will allow Doc Harper's to enjoy similar benefits as surrounding neighbors without permanently occupying the public right of way year round. The proposal is consistent with the goals of the 2008 Growth Policy, specifically the goal of encouraging uses that are compatible with the character of the adjacent land use patterns. This site is surrounded by a mix of commercial businesses within the city limits. The CBD zoning district is intended to accommodate stores, hotels, governmental and cultural centers and service establishments at the central focal point of the city's arterial and transportation system. There are direct impacts from the proposed seasonal patio and the Zoning Commission is recommending several mitigating conditions.

The Zoning Commission recommends the following conditions of approval:

1. The special review approval shall be limited to Unit 2 of the Babcock Building located on Lots 7 through 12 and a fraction of Lot 6, Block 93, Billings Original Town, generally located at 116 North Broadway.
2. This special review is to allow the installation of a temporary outdoor patio of 320 square feet on the public right-of-way directly adjacent to the business.
3. The installation of the temporary outdoor patio will not occur before May 1 of each calendar year and shall not remain in place after October 31 of each calendar year.
4. The installation of the temporary outdoor patio shall not occur in any calendar year unless an Encroachment Permit has been issued by the City Engineering Division and a signed Memorandum of Understanding with the Parking Division is in place to off-set the loss of the 3 on-street diagonal parking spaces.
5. The installation of the temporary outdoor patio shall be in substantial conformance with the site plan submitted with the application, including materials and the general location of benches, temporary sidewalks, and seating areas.
6. There shall not be any outdoor amplified music, announcement system or music system broadcast on the patio after 10 pm daily. Background music is allowed before 10 pm.
7. No signs, banners, or placards shall be posted on the fencing or benches.
8. Temporary planters or barriers will be placed at the top of the 3 on-street diagonal parking spaces to prevent vehicle parking against the benches and planters adjacent to the temporary walkway. The temporary planter or barrier design and placement will be determined by the City Engineering Division.
9. 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.
10. 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 is approved, the City may experience some lost revenue from the seasonal removal of 3 metered parking spaces. The Parking Division and the applicant are working on a plan to cover this part-year loss of revenue, including identifying 3 short term parking spaces (10 minute spaces) that could be converted to 2-hour metered spaces among other alternatives. The temporary revenue loss should be off-set through the memorandum of understanding to be developed with the Parking Division. If the seasonal patio is approved, it will generate encroachment rental fees to the City through the Engineering Division, and will increase activity in the downtown area after normal business hours.

The applicant is requesting permission to install an outdoor seasonal patio on the public sidewalk outside the main entrance for Doc Harper's at 116 N. Broadway. The applicant will use materials easily removed at the end of the outdoor season, so no permanent structures or encroachments are proposed at this time. The City has approved permanent encroachments for several downtown restaurants with on-premise alcohol service. The first location granted a permanent encroachment was Montana Brewing Company in April 2000, directly across the street from Doc Harper's. Since 2000, the City has granted several other permanent encroachments for outdoor patios including the Travel Cafe (now Broadway Deli) at 313 N Broadway, the Carlin Hotel at N 25th St and Montana Avenue, and the Golden Phoenix (now Rowdy's) at 222 N Broadway. Other eating establishments have less formal outdoor dining with just a few tables and chairs set out during business hours.

The agent, Bruce Harper, has submitted a request to the State Liquor Licensing Division to alter the premises to include a 320 square foot outdoor patio for patrons. The agent has applied for a City of Billings Encroachment Permit from the City Engineering Division and has opened discussion with the Parking Division regarding the 3 on-street parking spaces that will be impacted by the proposed patio. The property received special review approval to locate an all beverage license without gaming (SR 918) in 2014. This area of downtown has received 26 other special review approvals to locate liquor licenses.

Places that serve alcohol must comply with state regulations about where and when patrons may be served. Local zoning regulations require a special review whenever an outdoor patio is added at a location that requires a special review for the type of liquor license on the premises. For example, a restaurant that serves beer and wine and has a gaming restricted license does not need a special review to add an outdoor patio. A microbrewery allowed by the zoning regulations does not need a special review to add an outdoor patio. All locations within the Central Business District (CBD) are exempt from the local 600-foot separation requirement to churches, schools and public parks with playgrounds.

North Broadway is a downtown commercial street with two-way traffic, on-street parking and wide sidewalks for a high level of pedestrian activity. The 2015 traffic count data indicates an average daily traffic count of approximately 4,700 vehicles per day on this section of N. Broadway. The vehicle traffic on this street is lower than adjacent and surrounding arterial streets. Vehicle traffic is not indicative of commerce in the area as most businesses rely on pedestrian access for their businesses. This block of N .Broadway also has a high level of use for the on-street parking. In 2000, the City allowed Montana Brewing Company to eliminate 4 parallel parking spaces in front of its property to accommodate the outdoor patio and relocation of the sidewalk into the parking lane. A similar elimination of on-street parallel parking spots occurred for the Golden Phoenix outdoor patio in the 200 block of N Broadway. The agent is negotiating with the Parking Division to mitigate the seasonal loss of 3 on-street diagonal parking spaces proposed for this outdoor patio. Mitigation may include payment of the anticipated loss of revenue, payment for retrofitting nearby parking spaces to 2-hour parking meters, and other potential solutions.



 

The Zoning Commission conducted  a public hearing on April 5, 2016, and received the staff recommendation and testimony from Bruce Harper (the applicant), Mike Matthews of 115 N. Broadway, and Tracy Scott, the Parking Division Manager. No other testimony was received.

Mr. Harper testified the outdoor seating for patrons of downtown restaurants and lounges is almost a requirement for the market. People appreciate the ability to sit outside in the evening during clement weather and enjoy their hors d'ouerves, tapas, meals and beverages. He stated it was obvious last summer during the first year of operating Doc Harper's that outdoor seating was essential for success downtown. He stated he has been talking about this small, seasonal patio for Doc Harper's since last November with City staff including Debi Meling, City Engineer, planning staff, and other departments. He stated the downtown has an active nightlife and the proposed patio should fit well with all the other activities. Mr. Harper stated he would like to request a change to staff proposed condition #6 - allowing music only until 8 pm - to allow the background music on the patio until 10 pm. He stated he can hear the Montana Brew Pub patio music going after 8 pm and he understands the need to have an evening cut-off time but would like to have music until 10 pm.

Chairman Dan Wagner stated he was not in favor of allowing the music beyond 8 pm. He stated this condition would be important for the peace and quiet of residents. In response to a question from the Commission, Mr. Harper stated he is open from 4 pm until midnight. He stated they did open earlier during the day on Farmer's Market Saturday's last summer, but did not attract many early customers.

Mike Matthews stated he lives in an apartment across the street and is a partner in the Babcock Building. He stated the outdoor music and nightlife noise is normal for downtown residents and something that is not bothersome to the apartment dwellers in the area. He stated Billings has waited a long time to have its regular nightlife back downtown and this project will only support this activity. He stated on any given week night you will see people out at the ice cream shop, the coffee shop, restaurants and shopping after business hours.

Tracy Scott stated the Parking Division is in favor of supporting an active downtown and is working with the applicant to find a good solution for the 3 parking spots that will be seasonally closed for the patio and "parklet". She stated she has not seen a parklet installed in downtown Billings but has seen them in other communities and in professional publications. A "parklet" is the temporary closure of on-street parking spaces for use by people. Parklets offer a place to stop, to sit, and to rest while taking in the activities of the street. She stated the Parking Advisory Board would be meeting April 12 and has invited Mr. Harper to attend and discuss the proposal. She stated she will be working with the advisory board and City administration to devise a policy for parklets so future applicants can have some certainty during the process.

Commission member Michael Larson moved to recommend conditional approval, amend condition #6 to allow background music until 10 pm, and adopt the findings of the 3 criteria. The motion was seconded by Dennis Ulvestad. The Zoning Commission voted unanimously in favor of the motion.

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