Planning staff recently completed an intensive review of Group 3 Temporary Use Permits. During this work, it was discovered that there are 6 existing temporary use structures (kiosks) that exceed the maximum allowed floor area requirement of 120 square feet. These non-compliant structures vary in size from 130 square feet to 200 square feet. Each of the nonconforming temporary use structures did disclose their sizes either during the initial application process or during the annual renewal process, and were approved by the Planning Division. The overall proposed direction from the Planning Staff to business owners for all over-sized, existing kiosks would be to allow their continued use through the variance process, with annual renewal of their temporary use permits.  Otherwise, all newly proposed or replacement kiosks would be required to meet the maximum size of 120 square feet, in addition to all other Zoning Code requirements. This application is for only for 1 of the 6 noncompliant temporary uses throughout the City. It is anticipated the Board of Adjustment will see future applications for the other identified non-conformities within the next 12 months.

Per the Zoning Code, this oversized structures is considered to be in non-compliance and for it to come into compliance without a variance it would mean either (1) replacing the kiosks with smaller structures or (2) obtaining a commercial building permit (voiding the temporary use). The ICC Commercial Building Code adopted by the City of Billings and the State of Montana states that any commercial building that exceeds 120 square feet in floor area requires a building permit from the state or local jurisdiction. This exempts buildings less than 120 square feet from the commercial building review process and allows commercial structures under 120 square feet to be considered a temporary use under BMCC 27.1009(A)(3). For this business owner to replace the kiosks with smaller building after they were already approved for use and currently in operation, would be cost prohibitive. In addition, following discussions with Planning Staff, Building Division and Public Works Engineering, it was determined that it would be very difficult or even impossible to issue building permits after a kiosk has been constructed and in-use. 

This applicant currently operates temporary use kiosks in six different Mountain Mudd locations across Billings and one in Yellowstone County. The applicant's other kiosks currently in-use are all under the 120 square foot maximum size. The purpose of the variance is to allow an existing 160 sq. ft. Group 3 Temporary Use structure at the described location to be larger than the maximum allowed floor area of 120 square feet. The current temporary use structure located at 16 Shiloh Rd is 8'x20' or 160 square feet and replaced an 8'x8' or 64 square foot kiosk earlier this year.
 

Approval or disapproval of the proposed variance should not have an impact of the Planning Division budget.

The Board of Adjustment shall make the following determinations prior to granting a variance:
1.         That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district;
There are no special conditions that are peculiar to the land or the lot which causes hardship, however, the temporary use structure is one of six other temporary use structures within the City limits that have been erroneously approved by the Planning Division in the past.  The kiosk at 16 Shiloh Rd was placed on the property and put into use prior to the annual renewal of the temporary use permit and been in operation since August 2021.

2.         That a literal interpretation of the provisions of the Zoning Code would deprive the applicant of rights commonly enjoyed by other tracts in the same district;
There are six kiosks that exceed the 120 square foot maximum structure size requirement currently in operation within the City limits, across various zoning districts. These kiosks are not in compliance with the Zoning Code. Granting this variance allows the applicant the continued, and legal nonconforming status of the kiosk in its current location. 

3.         That granting the variance requested will not confer on the applicant any special privilege that is denied by this Chapter to other land in the same district;
Prior to the current application, there have been no variance applications to allow an increase in size of a temporary use structure. The variance, if granted, would be a one-time allowance for the continued use of an existing temporary structure which was erroneously approved by the Planning Division. The intent is not to allow any new temporary use structures to exceed this maximum size requirement. 

4.         That the granting of the variance will be in harmony with the general purpose and intent of the Zoning Code and with the Growth Policy;
The variance is in harmony with the general purpose and intent of the zoning regulations and the growth policy.  Approval of this variance would allow the applicant to continue to use the kiosk as a drive-thru coffee business from this location only. This use operates on a commercial property in a commercial note at the intersection of two principle arterial streets. this use, with 40 additional square feet, is in harmony with the area and other allowable uses within this zone district.

5.         In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with the Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of the Zoning Code.

This building and use is in existing operation. Each year the temporary use permit is reviewed for annual renewal. The site plan, traffic plan, and parking has been approved and meets all other zoning and site design requirements ensuring safety standards.

Staff is recommending the following conditions for the allowance of an increase in square footage for this Group 3 Temporary Use structure variance request:

1. The approval is for a variance from Zoning Code 27.1009(A)(3)(b)(4)(i), as amended increasing the maximum allowed size of the structure from 120 square feet to 160 square feet (34% increase). No other variance is intended or implied with this approval.
2. The variance is limited the existing 8'x20' kiosk only, currently located on Parcel 1A, Certificate of Survey 2727M, and becomes void if the structure is moved (either within the same parcel or to another parcel within the City Limits) or the footprint is altered in any way.
3. The variance shall be null and void if at any time in the future, the temporary use permit for this kiosk remains expired for more than 30 days or if the structure is not in operation for more than 180 days.
4. These conditions of variance approval shall run with the land described in this authorization and shall apply to all current and subsequent owners, operators, managers, leaseholders, heirs and assigns, so long as the structure is not moved from its current location.
5. The applicant shall meet all other city code requirements, including annual renewal of the temporary use permit, except for this variance.
    

6.       The Board shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both. Failure to begin or complete such action within the time limit set shall void the variance.
The structure is fully constructed, in-use and has been approved for temporary use by the Planning Division through 11/12/2022, therefore the time limit would be for ensuring the temporary use permit remain active, annually. If at any time in the future, the temporary use permit for this kiosk remains expired for more than 30 days or if the structure is not in operation for more than 180 days, this variance shall be void. 

7.      Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this Chapter in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other property in the district.
The granting of this variance would not allow a use that is not permitted in the zoning district – drive-thru restaurants are a permitted accessory use in the CMU1 district.