Special Zoning District 12 - Variance 1 - Molt Road near Shorey Rd - Far and Away EstatesThis is a variance from the General Provisions (No. 7 subsection No. 8) of Special Zoning District 12 that currently reads “No building or structure nor the enlargement of any building or structure shall be hereafter erected to exceed one and one half (1.5) stories or twenty-five (25) feet in height” to allow all buildings on the subject parcels to be up to two (2) stories or thirty-five (35) feet in height; and a clarification and variance from Permitted Uses (No.8 subsection No. 3) that currently reads: “Accessory building incidental to the above uses and located on the same lot (not involving the conduct of a business) including one private garage for not more than four cars.” to allow the location of up to three (3) accessory buildings on each lot, that may be designed and used for horses, storage, an additional garage for not more than four vehicles, and one (1) such accessory building may have a one-bedroom guest suite. An accessory building may also be designed and used for athletic and recreational facilities. No other types of accessory buildings are permitted. An accessory building must not exceed 2,000 square feet of ground-floor area and two (2) stories in height. This variance would apply to all of the following lots: C.O.S. 781, PARCEL 5A, 2ND AMD, PARCEL 8A, 2ND AMD, PARCEL 10A2, 3RD AMD, PARCEL 11A1, 5TH AMD, PARCEL 12A1, 5TH AMD, PARCEL 15A1, 5TH AMD, PARCEL 16A, 5TH AMD, PARCEL 9A2, 3RD AMD, PARCEL 17A, 2ND AMD, PARCEL 1A, 2ND AMD, PARCEL 14A, 2ND AMD, PARCEL 6A, 2ND AMD, , PARCEL 13A1, 5TH AMD. The total area of these 13 parcels is 139.23 acres.

Planning staff is recommending approval of the requested variance based on the findings of the three criteria for variances in Special Zoning Districts. 

OWNER: Yellowstone Farms, LLC - Jack Ramirez and James Hertz
AGENT: Kellie Saville
LEGAL DESCRIPTION: C.O.S. 781, PARCEL 5A, 2ND AMD, PARCEL 8A, 2ND AMD, PARCEL 10A2, 3RD AMD, PARCEL 11A1, 5TH AMD, PARCEL 12A1, 5TH AMD, PARCEL 15A1, 5TH AMD, PARCEL 16A, 5TH AMD, PARCEL 9A2, 3RD AMD, PARCEL 17A, 2ND AMD, PARCEL 1A, 2ND AMD, PARCEL 14A, 2ND AMD, PARCEL 6A, 2ND AMD, , PARCEL 13A1, 5TH AMD
ADDRESS: West side of Molt Road just south of intersection with Shorey Road
CURRENT ZONING: Special Zoning District 12 - Rural Residential Uses and Agriculture
EXISTING LAND USE: Vacant Rural Land
PROPOSED USE: 2.5-story single family homes with accessory buildings and uses
SIZE OF PARCEL: 139.23 acres total - Lots range in area from 8 acres to 13 acres

None.

The property was mostly included within the boundary of Special Zoning District 12 - adopted on August 25, 1970. The original survey was one parcel of about 207 acres. In 1974 a subsequent amendment of the survey created 22 lots. The survey was amended several times over the past 48 years to adjust the boundaries of the 22 lots. Eventually through consolidation, the number of lots was reduced to 19 lots. Thirteen of those lots are either all within the SZD 12 boundary or partially within the boundary.

NORTH:	Zoning: Un-zoned Land Use: Single family homes
SOUTH:	Zoning: SZD 12 Land Use: Grazing land
EAST:	Zoning: SZD 12 Land Use: Grazing land
WEST:	Zoning: Un-zoned Land Use: State Trust Land - grazing

This is a variance request to allow 2.5-story dwellings up to 35 feet in overall height on several parcels of land to be developed along the northern boundary of Special Zoning District (SZD) 12 in Echo Canyon. In addition, the applicant is asking for clarification of the accessory building requirements and to allow one of the accessory buildings to have guest quarters. None of the lots have started construction but several have been sold to builders and construction may start soon. The owners have filed covenants and restrictions for the parcels within this certificate of survey (781) that will further control land uses on the property.

The subdivision to the north (McFarland Subdivision) is outside the zoning district and has no limitations on building heights. The proposed land development will include new homes on sites from 8 acres up to 13 acres. Thirteen parcels in this development project of 19 home sites are effected by the zoning restrictions in SZD 12. The applicant's historical perspective for the height and story limitation for new construction is based on family history in Echo Canyon and their involvement with the creation of SZD 12. The canyon roughly follows the watershed of Cove Creek and Little Cove Creek and has rimrocks and plateaus that create vistas and viewsheds throughout the canyon. It was likely the original intent of the height limitation to protect these aesthetic qualities of the canyon and to limit the public safety concerns for structure fire response. This area is in the Molt Volunteer Fire Department district. This volunteer company is a wildland fire response crew. Any structure fire would call in mutual aid from the Billings Fire Department. The insurance rating for homes in the canyon reflects the long response times for structure fires.

New construction within the zone district is not common place. Most residential homes were built in the 3 decades between 1960 and 1990. There are only 84 separate parcels within this zoning district that covers over 2,480 acres of land. There are three public park parcels within the district - two owned by Yellowstone County and one owned by the City of Billings (part of Phipps Park). The County parks are within the two subdivisions in the zoning district - Echo Canyon Subdivision and Cove Creek Subdivision. The majority of larger parcels are in certificates of survey or un-platted land. Most developed parcels in the district are owner occupied.

Special Zoning Districts or Part 1 zoning districts are a land use tool available for county residents and officials to protect property values and control land uses in rural areas. Yellowstone County has seven individual special zoning districts. Several districts have been subsumed into the County's "part 2" jurisdictional zoning boundary (4.5 miles outside the Billings city limits) or have been annexed to the city limits and have city zoning. Parts of SZD 12 have been annexed and zoned within the city limits. A chart of the County's special zoning districts is included as an attachment.

Each district has created areas for rural residential development and for the preservation of agricultural uses. Each district generally reflects the predominate style of residential construction available during the time the district was created. This district created in 1970, has a height limit of 1.5 stories or 25 feet, reflecting the ranch style home popular at the time. SZD 14 has no building height for the Agriculture zone (all land in the district) but included height limits for other zone districts that were then not applied to any land in the district. Those height limits are 25 feet. SZD 15 and 16 have no building height limitations. SZD 17 has a height limitation only for residential structures of 35 feet. SZD 18 has a building height limit of 30 to 35 feet. SZD 20 has a building height limit of 37 feet.

The number and types of uses allowed within an accessory structure also reflects the time period and the issues of concern for each special zoning district when it was created. Most districts encourage agricultural uses for property owners such as a few horses or cows. SZD 12 is the most specific on accessory structures and uses however the wording of the code can be confusing and vague. The definition in the special zoning district regulations is straight forward but the section on uses is more vague: Subsection 8.2 and 8.3: 
The plural is not used in the subsection 8.3 and it could be interpreted to mean that only one accessory building used for residential purposes but many structures may be constructed that are only used for agricultural uses. The applicant has requested a clarification and variance for accessory buildings on these lots.

Variances from the special zoning district regulations are allowed provided the County Planning and Zoning Commission finds the criteria for variances have been met:
1) The proposed variance will not be contrary to the public interest; and
2) The requested variance is based on special conditions; and
3) That a literal enforcement of the zoning regulation(s) will result in unnecessary hardship.
 

Before making a decision on the requested variance, the County Planning and Zoning Commission shall consider the findings of the three review criteria and whether to impose conditions on the approval of the variance (MCA 76-2-106).
1) The proposed variance will not be contrary to the public interest.
Planning staff finds the proposed variance from the maximum building height of 1.5 stories or 25 feet  to allow up to 2.5 stories or 35 feet is not contrary to the public interest. The types of construction and development styles have changed in the past 50 years including the size of home furnishings, fire resistive construction methods and building technology improvements. The original intent of the special zoning district was to ensure rural residential development that did not intrude on the canyon's aesthetic qualities as well as ensure public safety for structure fire response. Taller structures would require larger fire fighting equipment to respond and could make escape from structures less likely. Current construction methods have significantly reduced these fire risks, and smoke and fire detectors are now required and commonplace in residential homes.

The property location has significant terrain and most of the new residential homes will not be visible from Molt Road. (see attachment of Application Materials Exhibits 1 - 13). The additional building story and height of 10 feet will not be exceptional or out of context on the parcels of land. The subdivision (McFarland) to the north is just outside the northern boundary of the zoning district. Many homes in this subdivision are at or above the proposed height limit for these parcels.

2) The requested variance is based on special conditions.
The proposed development is on parcels larger than average home site in the district. Of the 43 parcels within the district that are developed for residential uses, eight homes are on parcels larger than 6 acres. This development includes 19 parcels total and 13 of those are affected by the district height limitations and accessory building requirements. All parcels are greater than 8 acres and range to almost 13 acres in area. A 13 acre parcel with regular boundaries is about 9 football fields of land area or over 1/2-million square feet. These parcels are larger in comparison to other residential developments in the district. The regulations were written to also consider that lots could be as small as 20,000 square feet or about 1/2-acre in area. While no developed parcels in Echo Canyon are 20,000 square feet, the zoning regulations anticipated smaller lots for residential development. The special condition for these lots is the lots are relatively large in comparison to the allowed height of buildings. In addition, the size of the parcels can allow additional accessory buildings without crowding lot lines.

3) That a literal enforcement of the zoning regulation(s) will result in unnecessary hardship.
The zoning restriction for building height and the number of accessory structures and uses for those structures, creates an unnecessary hardship for the prospective owners and home designers. The parcel falls away from Molt Road to the west and has a lot of topographic relief. It is doubtful a taller home of 2.5 or more stories would be visible from Molt Road or from neighboring properties for lots down in the valleys between the rimrocks. There are no views from Molt Road to these new dwellings that would be impacted by a building height of 35 feet as opposed to 25 feet. It is also more expensive to build most of the interior space on the ground-floor with a smaller 1/2-story above. This is because the largest expense of home building is the foundation and roof system. A single story home requires both more foundation and roof per square foot than a 2-story home. This would be acceptable if the proposed lots were smaller, but the lots are intended for larger homes with more square footage for living space. Utilities, heating and cooling are also more costly per square foot in a single story home.

Limiting the number of accessory buildings and the uses for those accessory buildings on lots this large also creates an unnecessary hardship. Many rural residential owners desire the additional space to store all types of recreational and agricultural equipment as well as having space for outdoor living. Lots this large in the county generally have three or more accessory buildings for various uses. The code as written is open to interpretation. For example, someone could read the code narrowly and limit non-agricultural accessory buildings to one structure with parking for no more than four cars. Agricultural accessory buildings could be numerous but could never be re-purposed for other residential uses. The zoning code does not mention the storage of other types of vehicles such as boats, RVs, camper trailers, snowmobiles and other common personal property.

Planning staff recommends the variance be approved with the following conditions:
1) The variance is limited to the increase in building height from 1.5 stories or 25 feet to 2.5 stories and 35 feet; and 2 stories for accessory structures. Up to three accessory structures will be allowed per developed parcel and for any use incidental to rural residential living including the uses enumerated in the code as well as indoor recreational uses, for storage of personal property including recreational vehicles and equipment. One of the accessory structures may have a 1-bedroom guest quarters. No accessory structure would exceed 2,000 square feet on the ground-floor or 2 stories in height. No other variance from the zoning district regulations is intended or implied.
2) The variance is limited to the lots within Special Zoning District 12 specifically Parcels 5A, 8A, 10A2, 11A1, 12A1, 15A1, 16A, 9A2, 17A, 1A, 14A, 6A and 13A1 all in Certificate of Survey 781.
3) All lots shall begin development within 10 years of the date of the variance approval. Any lots where development has not yet begun at the lapsing date, shall be required to conform to the Special Zoning District regulations in place at the time or seek a separate variance. An owner or owners may request a modification of this time limit if an application is submitted within 60 days of the lapsing date of this approval.
4) All other zoning regulations, except for this specific variance, and any other applicable county regulations apply to the development of structures on each lot.
5) Development of structures on each lot will require the submittal and approval of a Zoning Compliance Permit through City/County Planning. The Zoning Compliance Permit is to ensure the compliance with the zoning regulations and the specific allowances in this variance.
6) Failure to begin or complete actions required by this approval within the time limits set forth shall void this variance.
7) This variance is approved, subject to the conditions set forth herein, shall become effective immediately upon the Commission's approval, shall run with the land described in this authorization, and shall apply to all current and subsequent owners, operators, managers, leaseholders and their heirs and assignees.

 

Staff recommends conditional approval of the variances based on the findings of the three criteria for Variance 1, Special Zoning District 12.