Planning staff recently completed an intensive review of Group 3 Temporary Use Permits. During this work, it was discovered that there were 5 existing temporary use structures (kiosks) that exceed the maximum allowed floor area requirement of 120 square feet within the City Limits. 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. One of those variances was conditionally approved in March 2022. The current application is for 3 of the 5 noncompliant temporary uses throughout the City. It is anticipated the Board of Adjustment will see one additional future applications for last remaining identified non-conformity within the next 9 months.

Per the Zoning Code, these oversized structures are 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 buildings after they were already approved for use and currently in operation, would be cost prohibitive for the applicant. 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 these three different locations across Billings and another one in Yellowstone County. They also have a proposed 200 square foot kiosk that the Planning Division denied a temporary use permit, as construction is not yet complete, and they will be obtaining a commercial building permit in order to operate from this location, or will need to resize the structure to less than 120 sq ft to be considered for a temporary use permit.

The purpose of this variance is to allow the three existing kiosks (200 sq ft, 150 sq ft, and 200 sq ft respectively) Group 3 Temporary Use structures at the described locations to be larger than the maximum allowed floor area of 120 square feet. 
 

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, these temporary use structures are only 3 of five temporary use structures within the City limits that have been erroneously approved by the Planning Division in the past.  

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 five 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 kiosks in their 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;
There has only been one prior application for a variance from the maximum allowed size for a Group 3 Temporary Use structure, which was conditionally approved in March 2022. This variance, if granted, would be a one-time allowance for the continued use of the existing temporary structures which were 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 kiosks as drive-thru coffee businesses from these locations only. 

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.

These buildings and uses are 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 structures from 120 square feet to two at 200 square feet (66% increase) and one at 150 sq ft. (30% increase). No other variance is intended or implied with this approval.
2. The variance is limited the existing kiosks only, currently located on the parcels described above, 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 for each site, 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 structures are fully constructed, in-use and have been approved for temporary use by the Planning Division, 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, EBURD CW & CMU2 districts.