Planning staff recommends denial of Variance 1361 and adoption of the findings of the review criteria.

This is a variance from Section 27-307, Table 27-300.6, A11 (Attached Garage Location and Entrance) to allow attached garage space in the front half of structures and allow the garage entrance to face the street frontage, in a Mixed Residential 1 (NX1) Zone.  The purpose of the request is to allow attached garage space in the front half of structures and allow the garage entrance to face the street frontage on lots 1-27, in The Timbers Subdivision (final plat pending). The total area affected is 4.9 acres of land.

Denying this request may not deprive this applicant of rights commonly enjoyed by other property in the area and within this subdivision, however there are unique circumstances with this request.  The Timbers Subdivision in the annexation process was required to development under the Planned Neighborhood Development (PND) regulations. The PND requires a mix of districts, which includes the NX districts for lots greater than 40 acres per Section 27-800E.3(b). The Timbers Subdivision in total is approximately 56.5 gross acres but is part of a phased annexation that will include additional acreage over time and additional subdivision filings. In order to be annexed and in conformance with the Neighborhood PND the development had to include some NX zoned land. The PND regulations also restrict N zones (N1,N2 or N3) from arterial street frontage. The primary reason the development chose the NX1 zone is that the PND regulations 1) do not allow N zones to have frontage on arterial streets and 2) for a PND over 40 acres at least 1 acre of NX zone is required. Section 27-802.B.2(d), and Section 27-802.E.3(b). The NX1 allows 1-4 units, and the applicants believe this zone is the most appropriate for their desired development style. They have the ability to change the building design to fit the lots under the NX requirements but would prefer to apply for a variance to use the design plans they created for this development.  It was required by the code, so they placed the NX1 zone at one of the entries to the subdivision along the arterial street.  One option for the developer is to change the layout of the buildings to fit the lots they designed and created for this subdivision. The redesign would likely require shared driveways along property lines between two or more lots. This shared driveway design could accommodate side load or rear load garages. Reducing the footprint of these designs could also be done to accommodate some other design features and include the side or rear load garages.

The applicant provided an amended variance request on March 24, 2023, that could be considered by the board as it reduces the request as follows: "We are requesting a variance to allow side facing garages to be on the front of the home structure. With the size of the lots and the minimal width of the lots in this portion of the development it makes it very difficult to position the garage on the rear half of the home structure. This also drastically restricts the area of the lot that the livable space can be built and creates a longer driveway. It is impossible to have rear or side load garages on these lots. This application is to request relief from the requirements of a zone designation that is included in their Planned Neighborhood development required development pattern for annexation." Exhibit provided with this letter are in the attachments.

Staff has reviewed the new exhibit showing a side load garage that is located on the front facade. Although the visual impacts by having the garage door relocated are more in line with the code, the bulk of the garage is still the structures dominating feature, therefore staff is presenting the original findings for the Board's consideration with the applicants amended request.

APPLICATION DATA
OWNERS:   Alkali Timbers, LLC
AGENT: Jeff Wollschlager, A-Line Drafting                
PURPOSE: Garage located on the street frontage
LEGAL DESCRIPTION: lots 1-27, The Timbers Subdivision
ADDRESS: Addresses pending
EXISTING LAND USE: Vacant
PROPOSED LAND USE: Residential
EXISTING ZONING: NX1

CONCURRENT APPLICATIONS
The Timbers Subdivision final plat pending. PND (PZX-21-00273) and Annexation (PZX-21-00272) approved.

SURROUNDING ZONING & LAND USE
NORTH: Zoning: Ag 
               Land Use: Vacant Ag
SOUTH: Zoning: N3 & Ag
               Land Use: Proposed Residential and Ag
EAST:     Zoning: Ag 
               Land Use: Vacant Ag  
WEST:   Zoning:  P1
               Land Use:Parkland (in the flood plain)

The BOA held a public hearing on March 1, 2023, Staff gave a brief presentation and reasons for the recommendation of denial. The applicants' agent, Jeff Wollschlager, A-line Drafting, stated the applicants were looking at developing the lots with single family dwellings and understood that a variance was their best option to allow front loading garages.  Commissioner David Hagstrom asked if there was relief from this requirement for cul-de-sac lots.  Nicole Cromwell said there is not an allowed relief for newly created lots, the code allows for lots created prior to the new restrictions to allow some relief from certain restrictions including facade designs.  Nicole also explained that there were other design features and options that could accommodate the rear or side load garages that could work with this subdivision.  It was also reiterated that the applicant designed these lots under this zone designation and is subsequently asking for a variance.  The BOA discussed other options for this subdivision, including redesign of the subdivision lots, or applying to change the zoning on the property. However, changing the zoning would go against the PND requirements. The Board asked the applicants' agent why they designed the lots in a way that would not accommodate the zoning criteria restrictions for the NX1 zone, knowing the zone was in place when they were working through the PND, and would they consider requesting fewer lots for approval of the variance rather than the entire  section of NX1 parcels? Jeff said that if the variance is denied it would force the applicants to do a complete redesign of the project.  Jeff asked for a delay on the vote in order to discuss with the applicant about other options, Dave Hagstrom made a motion to accept the request, it was seconded by Commissioner Josh Sayer and approved by a 4-0 voice vote to accept the applicants request to delay action on this application until the April 5, 2023, meeting. 

The BOA requested information be provided from the applicant at the return of the hearing as follows:
Why did they design the lots in a way that would not accommodate the zoning criteria restrictions for the NX1 zone.  Knowing the zone was in place when they were working through the PND?
Applicant: As you know, the city requires at least two different zoning types in new subdivisions. We did not want high-density multi-family in our first phase, and the NX1 zoning was our best option aside from single-family. At that time, we decided on the layout the HBA and city were working on, allowing front-load garages. We were hopeful that would have been allowed before we started construction this spring. We placed the NX1 where it could feel like its own community. As you look at the land constraints between Alkali Creek Road and Alkali Creek, forcing the garage in the back becomes challenging and costly for the developer, builder, and, ultimately, the home buyers.

Would they consider requesting fewer lots to approve the variance rather than the entire section of NX1 parcels?    Applicant: Yes, we would like to amend our application only to include lots 6,7,  & 8, please.  

The applicant provided an amended variance request on March 24, 2023, that could be considered by the board. More information on this is located in the background section of this staff report.

Planning staff has not received any comment from the surrounding property owners as of the date of this report.

The Board of Adjustment may:

• Conditionally approve the requested variance and adopt the recommended findings of the review criteria; or
• Deny the variance and adopt different findings of the review criteria; or
• Delay action on the variance to the next scheduled Board meeting; or
• Allow the applicant to withdraw.

Four votes in favor are required to approve any variance. If a variance is denied, the applicant must wait one year to reapply for the same variance.

The Planning Division budget will not be effected by the Board's decision on this variance.

Similar to criteria two, the lots within the subdivision are now subject to the new zoning requirements, garages in the front of the building and front load garages are not allowed in the NX1 zone district. Any development would need to be in conformance with the district requirements set forth within the PND. The granting of this variance will confer a special privilege since there are no other developed parcels in the subdivision.  The applicants building and layout design can be modified to comply with the zone district requirements.

4) That the granting of the variance will be in harmony with the general purpose and intent of this zoning code and with the Growth Policy.
Granting of this variance application is most compatible with the following goals 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

Allowing continued investment in residential property supports a use that is compatible with the neighborhood.  Granting this variance for the location of a garage is not in harmony with the general purpose and intent of the Zoning Regulations. The primary reason they chose the NX1 zone is because the Planned Neighborhood Development regulations 1) do not allow N zones to have frontage on arterial streets and 2) for a PND over 40 acres at least 1 acre of NX zone is required. (Section 27-802.B.2(d), and Section 27-802.E.3(b)).

The PND requires a mix of zoning in new subdivisions that are to enhance development of properties that are annexed into the City of Billings.  These development standards are in place to bring a mix of housing types that meet the needs of the city's growing population and give Billings more diverse housing options that are aesthetically pleasing and encourage more walkable communities.   Granting this variance would not be desirable as it goes against the purpose of the PND and the NX1 design standards and against the Growth Policy that encourages development without garage dominated homes in new developments.

Section 27-1627.E
2) In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this 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 this Zoning Code;  Although staff is recommending denial of the variance, if the BOA chooses to approve the variance, Staff recommends the following conditions;

1.  This approval is to allow the garage on the front of the building adjacent to street frontage on lots 7. 8 & 9 only in The Timbers Subdivision (final plat pending).   No other variance is intended or implied.
2. The applicant will apply for and receive approval for the first building permit within 1 year and complete construction on the first dwelling within 3 years of BOA approval. Failure to meet the time limits of this condition will void the variance. All remaining lots will have completed construction within 7 years of BOA approval. Failure to construct within this time frame will require a new application and action from the BOA.
3. There will be no construction activities before 7 a.m. or after 8 p.m. daily.
4. Development of the parcels shall be in substantial conformance to the submitted site plans, minor modifications are allowed.
5. The applicant shall meet all other city code requirements in place at the time of construction except for the variance granted herein.
6. 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.

3) 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.
If the Board chooses to approve the variance, staff is recommending the applicant receive approval for a first building permit within one year and complete construction on the first dwelling within three years of BOA approval. Staff is also recommending all dwellings on all lots be completed within 7 years of BOA approval. 

4) Under no circumstances shall the Board grant a variance to allow a use not permissible under the terms of this zoning code in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other properties in the district.
The granting of this variance would not allow a use that is not allowed in the zoning district. Residential dwellings are allowed uses in this zone district.