This is a zone change request from Residential 7,000 (R-70) to Community Commercial (CC) on Tract 14, C/S 4 (Brittain Acres), a 2.12 acre parcel of land. A pre-application neighborhood meeting was held at Country Inn and Suites, 231 Main Street on November 14, 2016. The agent is Eric Nord of Crist, Krogh and Nord, PLLC and the owner is River Park Retirement Court, LLC doing business as River Park Storage (Gerald Klein). The Zoning Commission conducted a public hearing on January 3, 2017, and is recommending approval and adoption of the findings of the 10 criteria.

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 types 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:

• Approve the zone change and adopt the findings of the 10 criteria as recommended by the Zoning Commission;
• Deny 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 staff  evaluated the proposed zoning based on the 10 criteria for zone changes and recommended denial to the Zoning Commission. The Zoning Commission did not concur with the staff recommendation based on the testimony of the owner, his agent and their finding that the existing use was benign and would not likely change to a use with more impact due to the property location and circumstances specific to this property.

The Planning staff agreed the existing use was not having a detrimental impact on the surrounding properties but staff must always consider the potential future uses of the property under the proposed zoning. The Zoning Commission found the proposed zoning would support the conservation of the value of the buildings on the site, does not and will not have an impact on the adjacent Kiwanis Bike Path or the traffic on Yellowstone River Road, and was supported by the 2016 Growth Policy guidelines for Strong Neighborhoods, Prosperity and Essential Investments by supporting existing in-fill development (the storage spaces), providing a convenient location for an essential neighborhood service and retaining and supporting an existing business at this location.  

Prior to making a decision on the requested zone change, the City Council shall consider the following:

1.   Is the new zoning designed in accordance with the Growth Policy?
The proposed zone change is consistent with the following guidelines of the 2016 Growth Policy and the Heights Neighborhood Plan (2006):

• The Heights Neighborhood Plan Land Use goals and objectives stated the need to "prohibit high intensity commercial development in residential areas. Provide less intensive commercial development on arterial intersections within residential neighborhoods."

The proposed zoning of CC is proposed to make an existing benign use for personal storage a conforming use on the property. The storage units were constructed in 2012 and have existed as a separate business entity for over 2.5 years without any impact to the surrounding properties. While the proposed zoning could allow some future intense commercial uses of the property, the Zoning Commission finds this is highly unlikely given the specific location and nature of the property. The applicant and agent have stated a restrictive covenant will be placed on the land that will restrain any future owner from re-developing the property for any use other than personal storage. Restrictive covenants are private and the City has no participation or authority in them. They also are able to be privately lifted or amended by the property owner(s), and are not part of the criteria considered by staff, the Zoning Commission, or the City Council, when reviewing zoning applications.

• Essential Investments and Strong Neighborhoods: Neighborhoods that are safe and attractive and provide essential services are much desired

The proposed zoning would allow an existing neighborhood service to remain in this residential area. Residents of Billings Heights have a growing need for off-site storage of household items, especially boats and RVs. This facility provides a convenient location for this type of storage without any impact to the surrounding neighbors.

• Prosperity: Retaining and supporting existing businesses helps sustain a healthy economy.

The existing business on the property will be supported and maintained by the proposed zone change. The existing R-70 zoning makes it impossible for the current owner to sell the property since all the structures and business could not be re-built if necessary in the future. A re-build confirmation from the City is necessary for any financing or insurance coverage of the business.
 
2.   Is the new zoning designed to secure from fire and other dangers?
The new zoning requires minimum setbacks, open and landscaped areas and building separations. 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?
Public health and public safety will be promoted by the proposed zoning. The current zoning of the parcel – R-70 – allowed the previous owner to construct the personal storage buildings for use by the manufactured home park residents. The previous owner passed away and the current owner has run the facility as a separate business since April of 2014. The leasing and renting of the storage space to the public has had little or no impact on the adjacent neighbors. The new zoning will allow the current use and practice to continue in the future. Public health, safety and general welfare will be promoted by allowing the existing use to continue, preventing dis-investment in the property and closure of a successful business.  
 
4.   Will the new zoning facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirement?
Transportation: The proposed zoning will have no measurable effect on the transportation system.  
Water and Sewer: The City provides water and sewer to the property. There will be no additional impacts to the system from the proposed zoning.  
Schools and Parks: Schools should not be affected by the proposed zoning.
Fire and Police: The subject property is served by City public safety services. The Police and Fire Departments had 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.
 
6.   Will the new zoning effect motorized and non-motorized transportation?
The new zoning should have no effect on vehicle or pedestrian traffic. The existing drive approach on Yellowstone River Road recently received approval of an easement from the City Council to continue the access to the storage unit property. City Engineering staff has no concern with the access easement.  
 
7.   Will the new zoning promote compatible urban growth?
The new zoning does promote compatible urban growth in this area. The personal storage units provide a service to residents in the area. The property is not an intrusion to the area and is a benign use. The proposed zoning will allow the existing storage units and garages to continue to be rented to the general public. While not enforceable by the City or tied to the criteria for zone changes, the owner and agent have stated that they will restrict future uses of the property by a covenant that runs with the land.
 
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 consider the character of the district and the suitability of the property for the proposed use. The property is setback about 150 feet from Yellowstone River Road and is separated from the neighborhoods to the west and north by a significant ditch. The property is suitable for the existing personal storage units and should be allowed to continue with conforming zoning.  
 
9.   Will the new zoning conserve the value of buildings?
The property is currently developed with a 2-family dwelling, 5 accessory buildings and 2 storage unit buildings along the north and south property lines. Approval of the zone change would allow the storage units to continue. The value of existing buildings and the parcel will be conserved by the proposed zoning. Denial of the zone change would de-value the personal storage units on the property as well as the current operating business.
 
10. Will the new zoning encourage the most appropriate use of land throughout the City of Billings?
The proposed zoning may encourage the most appropriate use of this land in Billings. This specific location and use is appropriate.
 

Approval of the zone change will stabilize the market and taxable value of the property. The new zoning will effect the assessments for arterial construction and storm water services.

The subject property was owned by the same party who owned the River Road Manufactured Home Park. The principal owner, Clarence Klein, held both properties until he passed away in late 2013. Subsequently, the manufactured home park was sold to another party, an LLC named River Road Mobile Home Court (Richard Dorn). The subject property is now owned by an LLC named River Park Retirement Court and the principal owner of the LLC is Gerald Klein, a relative of Mr. Clarence Klein. The existing zoning, R-70, applies to both the manufactured home park and the subject property. The zoning is the original zoning adopted by the County and remained the same after annexation to the City in 1984. R-70 zoning does not allow manufactured home parks, but the existing manufactured home park containing 65 units is allowed to continue so long as the use does not cease to exist for more than 1 year. A special exception (now called a special review) was granted by the County in 1984 to allow the construction of an over-sized accessory building on the south end of the manufactured home park (Tract A in Lot 15). In 2012, Mr. Clarence Klein applied for building permits to construct additional storage units for the manufactured home park on the subject property (Lot 14). The building permit was approved as submitted since the proposed use was in conjunction with - and not separate from - the manufactured home park.

Several zone changes have been approved in the area from residential zoning to commercial zoning in the last 10 years. Two zone changes for 807, 821 and 823 Bench Boulevard were approved since 2007, the last one to change to CC zoning. These lots are at the intersection of Bench Boulevard and Hilltop Road, two principal arterial streets. Another corner property on the southeast leg of this intersection was approved for NC zoning by the County in 2006. A subsequent zone change for CC zoning on this parcel was denied by the City Council in 2013. A zone change to CC for a parcel on the west side of Bench Boulevard (1026 Bench) was approved by the City in 2012 and personal storage units have been constructed.

This is a zone change request to allow the storage units and accessory garages to continue as an independent commercial business. The units have been rented to the general public for the past 2.5 years and has had no impact on the surrounding neighborhood. Mr. Gerald Klein now desires to sell the subject property. Potential buyers are notified of the original intent of the storage units and garages, the current zoning, and the inability to grant a re-build letter for the property under the current R-70 zoning. Although the intent is to legalize an established use on the property, the proposed zoning does not and cannot restrict future uses on the property that are compliant with the proposed CC zoning. The owner and agent have proposed to place a permanent restrictive covenant on the land to not allow any future use of the land except as a personal storage business. Restrictive covenants are private and the City has no participation or authority in them. They also are able to be privately lifted or amended by the property owner(s), and are not part of the criteria considered by staff, the Zoning Commission, or the City Council, when reviewing zoning applications.

Yellowstone River Road is a principal arterial street that carries about 7,900 vehicle trips per day. Most of the zoning along this road is residential both in the City and County. The City Council granted a formal easement to the subject property on November 28, 2016. The property has had informal access to Yellowstone River Road since before the property was annexed to the City. A residential property to the north at 956 Yellowstone River Road also uses this access point. The existing use is compatible with the existing access to Yellowstone River Road.




 

The Zoning Commission conducted a public hearing on January 3, 2017 and received the staff report, testimony from the owner, Gerald Klein, the agent Eric Nord, as well as Tom Rowe, and Randy Bjelkevig, real estate agents for the owner. No other testimony was received.

Mr. Nord testified in favor of the proposed zone change. He stated he disagreed with the staff's conclusions and findings for the 10 criteria. He stated the existing and only use of the property is for the personal storage units and the 1 duplex dwelling. He stated the use is entirely benign to the neighborhood. He stated these units have very low traffic and the storage yard is only open during daylight hours. He stated any traffic crossing the Kiwanis bike path would be a minor impact compared to the 3 major street crossing further north on this bike path. He stated there have been no concerns expressed by anyone concerning the bike path crossing. He stated his client is interested in retiring and selling the property, but no sale can occur until the zoning is changed to a district that allows the existing use. He stated his client is willing and ready to place permanent restrictive covenant on the property that will preclude any future use of the land except for personal storage units.

In response to a question from Commissioner Larson, Mr. Nord stated the only reasonable use of the property is the current use. He stated the proposed restrictive covenant would prevent any future detrimental uses of the property such as bars, casinos, liquor stores, auto sales and similar uses with a greater impact on the neighborhood. In response to a question from Commissioner Ulvestad, staff explained that zone changes cannot be conditionally approved only approved or denied. In response to a question from Commissioner Boyett, staff explained other methods to accomplish conformity such as a Planned Development zone change. Staff stated this has been used in some cases for personal storage units, stand alone commercial uses in existing residential areas and similar situations.

Mr. Nord stated the proposed covenant could accomplish the same intent in this case. He stated if the current LLC imposes the covenant, then is dissolved after the sale of the property, the new owner and any future owner could not change or remove the covenant. The only way to remove such a restriction would be to re-incorporate the same LLC, a process that is difficult and not common.  In response to a question from Commissioner Larson, Mr. Nord stated he disagreed with the staff assessment the proposed zoning could be considered illegal spot zoning. He stated the proposed use of the property is an existing use and is not detrimental to the surrounding owners in any way. Mr. Nord stated the proposal does not meet the criteria to be an illegal spot zone.

Mr. Randy Bjelkevig testified in favor of the zone change. He stated he has been trying to market the property for the current owner and has had several interested buyers. These buyers have lost interest after the disclosure of the zoning nonconformance. He stated there would be no useful purpose in denying the zone change as proposed by staff recommendation. The use of the property has had no impact in the neighborhood.

Mr. Tom Rowe, also representing the owner, stated the storage units have been rented out for the past 2.5 years. These renters have not caused any problems for traffic, the bike path, or the neighborhood. He stated there have been no objections from any of the surrounding owners and noted there were no objections to the zone change at the pre-application meeting with the neighbors.

Mr. Gerald Klein, owner, testified in favor of the zone change. He stated he is one of the owners of the LLC. He stated the manufactured home park has been in separate ownership since April of 2014. He stated when his father passed away there were many projects he had not completed and this was one of those projects. He stated there is and will not be any impact to the Kiwanis bike path. He stated his father originally built these units for his tenants in the mobile home park for parking their boats and trailers. He stated he is ready to sign a restrictive covenant for the property so it will stay in the same use forever. He stated he is ready to move forward on this property and sell to an interested buyer when the zoning issue is resolved. In response to a question from Commissioner Ulvestad, Mr. Klein stated the staff over-stated the possibility of other uses of the property in the future and in any case, the restrictive covenant would allay these concerns.
 
Commissioner Larson made a motion to recommend approval. Mr. Larson, in support of his motion, stated he specifically disagreed with the staff finding the proposed zoning is inconsistent with the neighborhood plan and growth policy, that the proposed zoning should not be considered an illegal spot zoning, and as a Zoning Commission member he believes it is incumbent to propose positive motions for consideration rather than motions to deny. He stated the existing use of the property has had and will not have any impact on the neighborhood. He stated the City Council should have the opportunity to consider the proposed restrictive covenant as well. The motion was seconded by Commissioner Boyett. Mr. Boyett stated the property should be zoned in conformance with its use and it is likely this use will remain in place for a considerable amount of time even without a restrictive covenant. Commissioner Mariska stated he agreed with motion and the proposed findings. He stated the storage units here have not been problem and the proposed covenant is a positive reenforcement of this proposed zoning. Commission Ulvestad also stated he supports the motion. Mr. Ulvestad stated the commission gives great weight to the staff recommendation, but in this case for this particular property, the CC zoning is appropriate. The motion carried on a 5-0 vote.

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