City Variance 1267 –2409 Rosewyn Lane - A variance from Section 27-308 requiring a minimum 3 foot side setback for a detached accessory structure to allow a 0-foot side setback in a Residential 9,600 (R-96) zone, on Lot 3A of Srite Acres Subdivision, a 7,309 square foot parcel of land. The purpose of the variance is to allow a detached accessory building under construction to remain in its current location. Tax ID: A14554.   Presented by Karen Husman, Planner I

Planning staff has reviewed this application and is forwarding a recommendation of denial for Variance #1267, based on the determinations for granting a variance.

OWNERS:                        Cheryl Morgan                                   
PURPOSE:                       To decrease the minimum structure side setback from 3’ to 0’
LEGAL DESCRIPTION:      Srite Acres Subdivision, Lot 3A
ADDRESS:                       2409 Rosewyn Lane
EXISTING LAND USE:       Residential
PROPOSED LAND USE:   Residential
EXISTING ZONING:            R-9600

None.

Subject Property – Variance #1028, lot size variance to allow 14,000 sf for 2 sfd. (denied in 2001); Variance #1067, lot size variance to allow a 7,309 square foot lot in a R-9600 zoning district (approved in 2010).
 
Surrounding Property – There have been 5 variance requests in this area. Three were for lot size (two approved one denied), two were for setbacks (one approved and one denied).

NORTH:   Zoning:      R-96
                  Land Use:  Commercial
SOUTH:    Zoning:      R-96
                  Land Use:  Residential
EAST:       Zoning:      R-96  
                  Land Use:  Residential
WEST:      Zoning:      R-96
                  Land Use:  Residential

The applicant is requesting a variance from 27-308 requiring a minimum 3-foot side setback for a detached accessory structure to allow a 0-foot side setback in a Residential 9,600 (R-96) zone. The purpose of the variance is to allow a detached accessory building under construction to remain in its current location.
 
In this particular area of Billings, many of the homes and accessory buildings were built in the late 1930’s. There are several examples of accessory structures in the area that are closer to the property line than what is required under the current zoning regulations.  Staff review of the surrounding neighborhoods found a number of storage sheds that may not meet the current setback requirements, none appeared to be anything other than storage and would not require a building permit.  In addition, Staff research found there is an existing ten-foot alley dedicated with the original subdivision that has never been improved by the City.  Many of the property owners have assumed the property was their own and used it as such. In this situation, because the property owner did not get a permit for the structure and it was not reviewed for compliance prior to construction, it appears they have started to build on property that is not owned by them. According to the site plan submitted, the measurements indicate the new structure encroaches into the dedicated alley as shown on the recorded plat. Variance requests can be considered for property within the Zoning Jurisdictional area owned by the applicant.  If the structure is not encroaching into the platted alley, the rear setback would also be in question as the structure may be at a 0 setback from the rear property line as well.
 
The building division provided the following comments with regard to this application: 1.  The pool equipment shed is required to have a building permit. Only accessory residential STORAGE sheds under 200 sf are exempt from permitting. If the structure is used for anything other than storage, i.e. pool equipment, then a building permit is required regardless of the building size. Plumbing and electrical permits are also required and must be obtained by the state licensed professionals doing the installation. 2.  The wall facing the property line and the side walls within 5’ of the property line are required to be 1-hr rated. No openings or projections (eaves or overhangs) are permitted within 2’ of the property line. 3.  Even if the variance is approved, the pool shed may not meet building code requirements and may still need to be re-built or significantly remodeled to meet all code requirements.