The City Zoning Commission recommends the City Council approve Zone Change 983 and adopt the findings of the ten review criteria.

This is a zone change request for the southern 1.98 acres of Lot 2, Block 1, Cherry Creek Estates Subdivision, from Public to Residential 8,000 (R-80). There is a concurrent County zone change for the portion of Lot 2 north of the city limits up to the northern leg of Cherry Creek Loop (8.62 acres). The portion of the property containing the road and the river bank will remain zoned public (~1,44 acres). The proposed development plan will include a future annexation and subdivision of the property for the development of two-family townhomes. The townhomes would be sold to individual owners.

The current zoning is Public in the city limits and Residential 9,600 (R-96) in the county portion. The current zoning of Lot 2 was approved in May 2001 as County Zone Change 541. The Public zone portion was intended to accommodate an extension or connection to the bike and trail system along the Yellowstone River and for potential future park dedication to the City. All large subdivisions for residential purposes are required to either dedicate parkland or pay cash in lieu of dedication. The Public zoned portion of this lot was never offered as parkland dedication and is still owned by Cherry Island, LLC. The Cherry Creek Manufactured Home Park developed and maintains a neighborhood park within that court, and Danube Court, the last phase of Cherry Creek, paid cash in lieu of parkland dedication.

The proposed zoning of R-80 will allow one and two-family dwellings on lots of 8,000 square feet for a one-family home and 10,000 square feet for a two-family dwelling. The developer intends to build primarily two-family dwellings and presented a concept site plan at the pre-application neighborhood meeting. The concept plan shows an internal road connecting the northern and southern legs of Cherry Creek Loop with 33 two-family dwellings (66 dwelling units total). The total lot area in the proposed development is about 12 acres. The proposed 66 dwelling units would have about 7,900 square feet of lot area per unit or 5.5 dwelling units per acre. The Aspen Cove Townhomes to the north at the intersection of Wicks Lane and Bitterroot Drive are zoned Residential 7,000 (R-70). There are 34 townhomes on this 4.88 acre parcel and have a density of about 7 dwelling units per acre. The directly adjacent properties to the west are outside the city limits and developed at much lower densities of 1 to 1.5 dwellings per acre.

The Cherry Creek Estates development started in 1998 when the first of 11 zone change applications was filed with the Planning Division. Four of the zone changes were withdrawn, two were denied and five were approved. The County zone change that approved the Residential Manufactured Home (County ZC 543) zoning was litigated in district court. The suit did not overturn the County Commissioners' decision to approve the zone change. The property including this Public zoned portion of Lot 2 was subsequently annexed to the city in 2002. The City Council agreed to annex the property with the intent to initiate a zone change after the annexation. The Council initiated the zone change in July 2002 to change the RMH and Public zoning to Residential 9,600 (R-96). The owners protested the zone change triggering the requirement for a super-majority vote to approve the zone change. The Council failed to achieve a super majority vote in favor of the zone change so the RMH and Public zoning stayed in place.

The subject property has remained un-developed for the last 22 years while the Cherry Creek Manufactured Home Park and Danube Court were developed. An early zone change application for a Planned Development (County Zone Change 524) proposed an underlying zoning of RMH for the manufactured home park and Public for all of Lot 2. In this proposal, Lot 2 would remain vacant and be developed as a natural area park with landscaping and trails. The Zoning Commission recommended denial. The County Commissioners denied the Planned Development zone change in early 2000. The next approved zone change for the property was in May 2001 and the zoning has remained the same since that time.

Planning staff reviewed the application and recommended approval of the zone change to the City Zoning Commission. The Zoning Commission concurred with this recommendation. The 2006 Billings Heights Neighborhood Plan and the 2016 City Growth Policy encourage the development of infill property where city services already exist and new neighborhoods can be served efficiently. The Heights Neighborhood Plan adopted a general statement encouraging new neighborhoods and developments that are similar in nature to existing neighborhoods. Both plans encourage a mix of housing choices in neighborhoods. The proposed development of townhomes expands the housing options in this area of Billings Heights, and should be a good fit between the manufactured home park and the low density county residences to the west. Water and sewer are readily available to the property. Public safety services are fiscally constrained, but the adjacent neighborhoods are already served and this new development can be served as well.

Prior to making its decision on the zone change, the City Council shall consider the Zoning Commission's recommended findings of the ten criteria:

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:
Strong Neighborhoods:

• Zoning regulations that allow a mixture of housing types provide housing options for all age groups and income levels
• Neighborhoods that are safe and attractive and provide essential services are much desired

Home Base:

• A mix of housing types that meet the needs of a diverse population is important
• The Housing Needs Assessment is an important tool to ensure Billings recognizes and meets the demands of future development Common to all types of housing choices is the desire to live in surroundings that are affordable, healthy and safe

The proposed zone change is consistent with the following goals of the 2006 Billings Heights Neighborhood Plan:

• To provide safe, good quality and affordable housing in the Heights.
• Develop housing patterns that are compatible with existing neighborhoods.
• Encourage high density multi-family development along arterial routes.
• Maintain similar housing in established neighborhoods.

The proposed zoning will allow another housing choice in an area with limited housing choices – either manufactured homes or large lot single family dwellings. There are a few townhomes at the intersection of Wicks Lane and Bitterroot Drive but the market is under-represented for this high-demand housing choice. The Emma Jean Heights Subdivision to the north and west is zoned for one or two-family dwellings but is developing mostly as single family dwellings. Subdivisions further north and west have allowed similar housing choices by mixtures of zone districts. Existing demand for housing choice is going up for all ages of buyers including “boomers” and millennials just buying a first home. The proposed zoning would allow a townhome choice in an area where two choices pre-dominate – a manufactured home or a detached single family residence on a larger lot. The overall density of 4 to 6 dwelling units per acre will remain essentially the same throughout the Cherry Creek Subdivision.

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 additional dwelling units will help increase the number of rate payers to the city utility systems and increase the taxable value of the property.

4. Will the new zoning facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirement?
Transportation: The proposed zoning will not significantly increase post-development traffic volume. The applicant will be required to prepare a Traffic report to accurately assess the capacity of the surrounding street network to handle the increased traffic from the townhome development. Any improvements or mitigation will be determined by the City Traffic Engineer.
Water and Sewer: The City will provide sewer to the property. Billings Heights Water will provide water service.
Schools and Parks: Schools and parks 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?
Traffic generation from 66 new dwelling units will be between 650 to 800 new vehicle trips per day. This trip count includes trips to the new residences for services such as mail, deliveries, solid waste and similar as well as the trips by the occupants. The new subdivision will have sidewalks and will connect to other sidewalks and pedestrian facilities in the neighborhood. The new zoning will not have any increase effect on the transportation system.

7. Will the new zoning promote compatible urban growth?
The new zoning does promote compatibility with urban growth. The proposed zoning will allow this parcel to provide new housing compatible with the existing neighborhoods to the west and east.

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 proposed zoning will allow a housing choice that is in demand in the area.

9. Will the new zoning conserve the value of buildings?
There are no existing buildings on the property. Manufactured homes to the east will be the closest to the new development but there is a significant planted buffer yard and 6-foot high screening fence. To the west, most these home will be 160 to 200 feet from the back of the new townhomes. In general, new construction tends to increase adjacent building and property values.

10. Will the new zoning encourage the most appropriate use of land throughout the City of Billings?
The proposed zoning will allow the development of another housing choice in this area of Billings Heights. This is the most appropriate use of the land.

The City Zoning Commission held a public hearing on September 1, 2020 and received the staff report, testimony from the applicant's agents (Marshall Phil, Blueline Engineering; Jeff Engel, Builder; Myles Egan, Realtor) and from several surrounding property owners. The surrounding owners include Jason and Lindsey McGimpsey of 1317 Bitterroot Drive, Ming Cabrera of the Heights Task Force, and Pam Ellis of 2000 Outlook Drive. Several emails and letters of concern were also submitted to the Zoning Commission. These are included as an attachment to this staff report.

The applicant's agents stated the proposed development will be for up to 66 townhome dwellings (33 two-unit buildings), with owner occupied units as the predominate use. The owner-occupancy of the townhomes is necessary to get the best financing for the unit owners and to better manage the property maintenance through the HOA. There is a limit of 10% investor owned units for townhome financing and this will keep the number of rentals low. Mr. Engel stated the units would be around 1,200 to 1,500 square feet of living space with attached garages and no basements. Mr. Engel stated many would be 2-bedroom units with a few 3-bedroom units. Mr. Phil stated there will be a 20 foot wide "no build" area along the west property line so the lower density county residences along Bitterroot Drive will not have structures right over the back fence.  Mr. Phil stated each back yard would also require 1 or 2 trees to help buffer the roof lines. He stated there would be a new vinyl fence around the entire development and sidewalks on both sides of the internal street.

Mr. McGimpsey stated the owners of this lot are the same original owners of the Cherry Creek Manufactured Home Park. He stated these owners and park managers cannot be trusted to do what they say they will do. He stated although the 1999 zone change for a Planned Development was denied, the owners continued to tout this property as a "buffer" to the neighborhood along Bitterroot Dr. Mr. McGimpsey stated this is how the manufactured home zoning was approved with the assurance this land would remain undeveloped. Mr. McGimpsey stated the current zoning of R-96 is a good transition zoning from the RMH to their homes along Bitterroot Drive. He urged the Zoning Commission not to approve the zone change.

Pam Ellis stated the owners of the property cannot be trusted to do as they promise. She stated the Cherry Creek owners have been poor managers of the manufactured home park and have reneged on their promises to the neighborhood and the tenants for years. The manufactured home park is too dense and adding more density on this property is not going to help. She stated she disagrees with the findings for criteria number four (transportation, water/sewer, schools/parks, fire/police) and number six (motorized and non-motorized transportation). Ms. Ellis stated the 66 new homes will burden the local streets with too much traffic and will overcrowd the schools. She stated the Billings Police already have more than twice the normal service calls in Cherry Creek alone and the proposed development will not make this any better. 

Ming Cabrera stated he was member of the Heights Task Force and agrees with the Task Force's letter of opposition to the zone change. He stated his biggest issue is with the number of rental properties already in the area. He stated the owners of this property did a poor job managing the Cherry Creek manufactured home park and the expectation is the same management would prevail in this new development. He stated the owners have no good history to back up the claim of a good quality development. He stated he disagrees with the proposed finding for criteria number three (public health, safety and general welfare). Mr. Cabrera stated the zoning would only benefit the property owner and not the surrounding property owners. He urged the commission to reject the zone change.

Lindsey McGimpsey of 1317 Bitterroot Drive testified in opposition to the zone change. She stated she has lived next door to the property for 15 years and the owners have never been good stewards of the land. She stated the 2016 zone change had a very different recommendation from Planning staff. (In 2016, a zone change from R-96 to RMH was proposed to expand the manufactured home park. Planning staff recommended denial of RMH zoning). She urged the commission to not be fooled by promises of beautiful new homes by the property owner. The owner did not live up to their development agreement with the city and have been negligent property owners from the start.

Mr. Phil provided rebuttal testimony. He stated the Cherry Creek Manufactured Home Park agreement allowed up to 363 units and this is how many are in the park.  He stated the new owners of the park have just begun improvements and have installed new management. He stated they are beginning to look at the potential traffic impacts but have not completed the study. The study will be reviewed by the City Traffic Engineer to ensure the new development can mitigate any known impacts to surrounding streets. He stated the new dwellings will be owner occupied since investor owned units are difficult to finance. He state a small number of the units (7 or fewer) might be retained by the developer as an investment. The entire development will be managed by an HOA and will take care of all property maintenance. Monthly maintenance fees will be assessed to cover this 100% property maintenance. Mr. Phil stated he spoke with officials at SD #2 about the development and any potential impact to school population projections. He stated SD #2 did not have concerns with accommodating any new students. He stated the alleged "buffer zone" was from a failed past zone change and the owner never intended to leave this property vacant forever.

Commission member Greg McCall made a motion to recommend approval and adoption of the findings of the ten criteria. The motion was seconded by Commission member Dan Brooks. The Commission voted four in favor and one opposed (Jack King) to the motion.

The City Council may:

• Adopt the findings of the 10 criteria as recommended by the Zoning Commission and approve the application; or
• Amend the findings of the 10 criteria as recommended by the Zoning Commission and approve or deny the application; or
• Delay action up to 30 days.

Approval of the Zone Change will have no direct impact on the Planning Division budget.