A variance from Section 27-1010.A.3(b.4)  requiring a maximum footprint for a temporary use structure of 120 square feet to allow an existing temporary use kiosk of 140 square feet in a Corridor Mixed Use 1 (CMU1) zone, on Lot 1A1 of Cole Acreage Tracts Amended, a 2.703 acre parcel of land generally located at 2816 Old Hardin Road. The purpose of the variance is to allow the existing over-sized kiosk to remain on the property and to allow the continued annual renewal of the Temporary Use Permit issued by the Planning Division.

Planning Staff has reviewed this application and is forwarding a recommendation of conditional approval based on the determinations for review within this report.

OWNER: Central Holdings, LLC (property owner)
Cassandra Dennison, Classy N' Sassy Coffee (Leases the land for kiosk)
AGENT: Donna Madson
PURPOSE: Increase the maximum allowed Group 3 Temporary Use structure size of the kiosk
LEGAL DESCRIPTION: Lot 1A1 of Cole Acreage Tracts Amended
ADDRESS: 2816 Old Hardin Road
SIZE OF PARCEL: 2.703 acre
ZONING: CMU1
 EXISTING LAND USE: Gas Station/convenience store - Coffee kiosk drive through only
PROPOSED LAND USE: No change

None

See Attachments

Planning staff recently completed an intensive review of Group 3 Temporary Use Permits. During this work, it was discovered that there were 6 existing temporary use structures (kiosks) that exceed the maximum allowed floor area requirement of 120 square feet, 5 within the City Limits of Billings and 1 outside the City but within the zoning jurisdictional area. 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. Variances have been conditionally approved for five of the nonconforming kiosks in 2022.  The current application is for the last of the 6 noncompliant temporary uses throughout Yellowstone County. 

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 replacing the kiosks with smaller structures. The ICC Commercial Building Code adopted by 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 Zoning Code Section 27-1010.A.3(b)(4). For this business owner to replace the kiosk with a smaller building after being approved for use and currently in operation, would be cost prohibitive for the applicant. 

This applicant currently operates temporary use kiosks in this location as well as three different locations across Billings. 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 this existing kiosk at 2816 Old Hardin Road as a Group 3 Temporary Use structure at the described location to be larger than the maximum allowed floor area of 120 square feet. 

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; 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; 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; 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; 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.

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 Section 27-1010.A.3(b)(4) as amended increasing the maximum allowed size of the structures from 120 square feet to 140 square feet.  No other variance is intended or implied with this approval. The variance is limited the existing kiosk only, currently located on the parcel described as Lot 1A1 of Cole Acreage Tracts Amended, and becomes void if the structure is moved (either within the same parcel or to another parcel within Yellowstone County) or the footprint is altered in any way.
2. 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.
3. 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.
4. The applicant shall meet all other 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.
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.

Planning Staff has reviewed this application and is forwarding a recommendation of conditional approval based on the determinations for review within this report.