Item #1: County Variance 287 – 321 Calypso Street – Detached Garage Size – A variance from Section 27-310(i) requiring the maximum footprint of a detached garage of 1,238 square feet to allow a maximum footprint of 1,500 square feet for a new detached garage in a Residential 15,000 (R-150) zone on Lot 1, Block 7 of Wells Garden Estates, 4^th Filing a 26,420 square foot parcel of land. Presented by Nicole Cromwell, Zoning Coordinator

Staff recommends conditional approval based on the proposed findings of the 7 criteria for Variance 287.

OWNER: Todd Carlson
AGENT: Rich Naylor, MHS Construction
LEGAL DESCRIPTION: Lot 1, Block 7, Wells garden Estates, 4th Filing
ADDRESS: 321 Calypso Street
CURRENT ZONING: R-150
EXISTING LAND USE: Single family residence
PROPOSED USE: Same with proposed 1,500 square foot detached garage
SIZE OF PARCEL: 26,420 square feet (.606 acres)

Zoning Compliance Permit PLN-18-00195 - to construct a new detached garage

Subject Property: The owner submitted a variance application in August 2015 - Variance 277 - to allow the construction of a much larger garage to continue and to allow the side and rear setbacks to be less than the required 8 feet. The application for the variance came after construction of the garage was started and nearly completed. The Board eventually denied the requested variance. The denial was appealed first to District Court (13th District) and then to the Supreme Court of Montana. Both courts found the Board's decision was legal and supported by the facts presented. The decision of the District Court and MT Supreme Court are attached. The detached garage associated with the previous variance has been demolished. Construction of the new detached garage will not commence until the decision on this variance has been made.

Surrounding Property: Staff found 1 variance application on file within the subdivision in addition to the previous 2015 variance for the subject property. This variance was for a side adjacent to street setback for a small detached shed to reduce the setback to 5.5 feet. The shed was under construction and the property owner became aware of the incorrect setback. The variance was denied on June 8, 1990, and the detached shed was moved to meet the 10 foot setback.

Three similar variances in surrounding subdivisions have been approved. One was approved for 606 48th Street West (aka 4825 Custer Avenue) to increase the size of a detached garage to 1,500 square feet (sf) on a 3 acre parcel of land in a R-150 zone. The garage met the minimum setbacks. The variance was approved in 1999, prior to the change in the zoning regulations that now allows detached garages up to 1,500 sf on lots of at least 1 acre. Another variance was approved for property in Shiloh Estates (R-150) to allow a detached garage on a 1-acre property at 4131 Wells Place. The variance approved a 1,300 sf garage and the garage met the required setbacks. A third variance was approved in Cloverleaf Meadows Subdivision (A-S) prior to the 1999 zoning amendment that now allows up to 3,000 square foot detached garages in any A-S zoning district. This variance allowed a 1,200 sf detached garage at 1020 Larkspur, a 1.18 acre parcel.

Two variances have been approved for larger garages in the Harvest Subdivision at 44th St West and Neibauer Road. The first variance was approved in 1997 for a garage of 1,500 sf at 4698 Harvest Lane. The second variance was approved in 2004 for a 1,296 sf garage at 4511 Robbie Lane.

NORTH:	Zoning: R-150 Land Use: Single family residence
SOUTH:	Zoning: R-150 Land Use: Single family residence
EAST:	Zoning: R-150 Land Use: Single family residence
WEST:	Zoning: R-150 Land Use: Single family residence

This is a request by the owner to re-construct a detached garage in the north east corner of the parcel. In 2015, the owner started and nearly completed construction of a detached 2-story garage that was too large (2,140 square feet) and did not meet the minimum required setbacks from neighboring properties. The Board denied the requested variance and the decision has been upheld by the Montana Supreme Court. The owner has hired a new construction company to design a detached garage that meets the required setbacks and the maximum allowable square footage if this variance request is granted.  The maximum allowed area for a detached garage on this parcel is 1,238 square feet. The maximum foot print calculation does not apply in the A-S or A-1 zoning districts but does apply in all other residential zones in the County up to a maximum of 1,500 per detached structure.The owner would like to increase this allowable area by 262 square feet to allow a maximum area of 1,500 square feet. This is a 20% increase over the maximum allowed area. The variance requested in 2015 was for a much larger area - a 73% increase over the allowable area - and to encroach into the required 8 foot setbacks and in to the 10-foot utility easements along the north and east property lines. 

The surrounding properties in the Wells Garden Subdivision are all single family dwellings with and without detached garages on lots of at least 1/2-acre in area. A "windshield" and aerial map review of the surrounding properties shows at least 2 parcels in the immediate area with detached garages that exceed the maximum allowable area. This includes garages at 606 Calypso (1,500 sf) & 616 Calypso (1,270 sf).  Neither of these locations have applied for or received variances. Subdivisions with R-150 zoning in the area also have parcels with detached garages exceeding the maximum area allowed without variances of record including:

• 1016 52nd St West (3 garages - 1,127 sf; 1,200 sf; 809 sf)
• 1236 52nd St West (1,792 sf)
• 4729 Lewis Ave (3,200 sf)
• 4630 Cliffview (2,400 sf)
• 4711 Jericho (1,440 sf)
• 4729 N. Woodhaven (1,368 sf)
• 5202 Bell Ave (1,270 sf)
• 5221 Millstone (1,320 sf)
• 5202 Onyx (1,320 sf)
• 303 Summer Sky (1,200 sf)
• 322 S 52nd St W (1,700 sf)
• 327 White Star Circle (1,200 sf)
• 325 Feldspar (1,200 sf)
• 214 Feldspar (1,200 sf)
• 5224 Central (2,880 sf)
• 302 White Star Circle (1,200 sf)
• 5420 Rustic Ave (3 garages - 2,304 sf, 1024 sf, 712 sf)
• 5515 Hennessy (2,400 sf)
• 5545 Hennessy (1,800 sf)

There is no hardship with the land that prevents the applicant from constructing the detached garage at the maximum area required by the code. No part of the previous structure will be re-used. The area limitation for garages does not apply to an attached garage, so the applicant could attach the garage to the existing dwelling. The property is served by an on-site well and an on-site septic system. Any structure must maintain a separation distance from both of these on-site systems. Attaching the proposed garage is not an option due to the location of the on-site water and waste water systems. The only area available for new construction is in the north east corner of the property.

Planning staff did find several other over-sized detached garages in the vicinity and in the same zoning district as the subject property. The requested area is similar to these existing garages that have not had the benefit of a zoning variance and are not out of character with the surrounding property.

Planning staff is recommending conditional approval based on the size of the requested variance, 242 sf, and that denying the variance would deny this owner of rights commonly enjoyed by others in the same district. Granting the variance would not be a special privilege to this owner and is in harmony with the County's adopted Growth Policy. The proposed garage will meet all of the required setbacks from the property lines, will be outside the utility easements and will be a structure more in keeping with the surrounding parcels.

Staff recommends conditional approval based on the proposed findings of the 7 review criteria for Variance 287.