Administrative Appeal 23-02 – 5005 Highway 3 – Approval of Zoning Compliance permit to allow a 15-foot property line setback – This is an appeal of the Administrative decision to approve a Zoning Compliance Permit (PLNX-23-00886) to allow a 15-foot property line setback for a new 4,800 square foot detached accessory building on Parcel 2, C/S 3668, in an Agriculture (A) zone district. The appeal was brought on behalf of the owners of Parcel 1, C/S 3668 at 5001 US Highway 3. Tax ID: D04549 (5005 Highway 3) and D04550 (5001 Highway 3) 

Planning staff recommends the Board affirm in whole the decision to approve the Zoning Compliance permit to allow a 15-foot property line setback for a new 4,800 square foot detached accessory building.

OWNER: Bryan White (property owner of 5005 US Hwy 3) APPELLANT: Bradley, Thomas & Monica Witten (Property owner 5001 US HWY 3)
AGENT: Justin Harkins, Crowley Fleck Attorney
LEGAL DESCRIPTION: Parcel 2, C/S 3668
ADDRESS: 5005 US HWY 3
CURRENT ZONING: Agriculture (A)
EXISTING LAND USE: Residential and agriculture (Equine facility)
PROPOSED USE: same with an additional detached accessory structure 15 feet from the property line.
SIZE OF PARCEL: 20 Acres

PLNX-23-00886- Zoning Compliance Permit approved.

See Attached.
 

NORTH:	Zoning: Agricultural (A) Land Use:  Residential
SOUTH:	Zoning: Agricultural (A) Land Use:  Residential
EAST:	Zoning: Agricultural (A) Land Use:  Residential
WEST:	Zoning: Agricultural (A) Land Use: Vacant

This is an appeal of the Planners administrative decision to approve a Zoning Compliance Permit (PLNX-23-00886) to allow a 15-foot property line setback for a new 4,800 square foot detached accessory building on Parcel 2, C/S 3668, in an Agriculture (A) zone district. The property in question is located at 5005 US HWY 3 owned by Bryan White. The appellants are the Witten's, the neighboring property owners that dispute the Planning Divisions application of the zoning code, more specifically section 27-903 which outlines the site and structure regulations. It was determined by staff that the parcel was accessed with a private access easement, and the property had no actual "front property line" or "rear property line" as described in the Zoning Code (included in attachments and labeled Zoning Code Sections). Therefore, staff determined that the appropriate property setback would be the "side setback" of 15 feet from the west property line and not the "front lot line" setback of 20 feet. Background information focuses on the zoning code, staffs interpretation and appellant information.

The zoning code sections staff consulted in making its determination are as follows:
SECTION 27-1802 MEASUREMENTS AND ASSOCIATED TERMS; A. LOT AND STREET MEASUREMENTS AND TERMS

3. Lot line: A line of record bounding a lot which divides one lot from another lot or from a public or private street, alley or other public space.
      (a) Front Lot Line: The lot line abutting a public or private front street.
      (b) Rear Lot Line: The lot line not intersecting a front lot line that is most distant from and most clearly parallel to the front lot line.
      (c) Side Lot Line: Any lot line that is not a front, street-side, or a rear lot line abutting an interior lot.
      (d) Street-Side Lot Line: The lot line abutting a public or private side or non-front street.

SECTION 27-1803 MEASUREMENTS AND DEFINITIONS;
R- R TERMS
Right-of-way: A strip of land dedicated or acquired for use as a public way, or that is acquired through an easement.  

S-  S TERMS;
Streets:  
   Street: A public way for vehicular traffic, whether designated as a street, highway, thoroughfare, parkway, throughway, road, avenue, boulevard, land, place, or however otherwise designated which has been dedicated to or acquired for public use and which extends the full width between right-of-way lines, which includes areas acquired or prescribed through an easement.

Additionally, sections 27-902.C.3, 27-903-Table 27-900.1, were consulted for Agriculture (A) district regulations.

The subject property is accessed by a private access easement declaration, recorded under document 3824820 in the Yellowstone County Clerk & Recorders office (in attachments).  A private access easement does not constitute a public way or street. 

Staff's determination that the description of a "front Lot line" as noted in the above definition sections for a "right of way" (ROW) does not exist for this property. The property has no property line adjacent to or along a public or private ROW. 
The property line in question does not abut a public street or right of way, nor does a right of way run the full length of the property line. The western property line can only be a side property line - as are all the other property lines for this parcel of land. The existing access easement is a private easement for access to the subject property only, it is not for "public" use and is a driveway access.  The westerly property line of this property does not fit the description of a "front" property (lot) line. It is not a lot line abutting a public or private front street. It does, however meet the description of a "side" property line; "any Lot line that is not a front, street-side, or rear lot line abutting an interior lot. The adjacent property owned by the appellants, is different than the property in question. The Witten's property at 5001 US Highway 3 does have a front property line, a rear property line and two side property lines. Planning staff would not apply a "front property line" setback to a building close to the private access easement on the Witten's property. Planning staff would only apply this setback to the property line that has frontage on US Highway 3. Staff would not apply a side adjacent to a street setback, side setback or rear setback to the private access easement through the Witten's property. Any structure proposed for the Witten property could be at any location next to the easement so long as it did not encroach on the easement itself. The only enforcement of the easement rights and burdens are the parties to the easement. The County is not a party to the easement.  

Chronology of events provided by appellant, and staff's response the statements.
Appellant: March 16, 2023 – Wittens speak to County Planning (Hunter Kelly) regarding Mr. White beginning construction too close to the property line, demonstrating that County Planning knew prior to White’s ZCP application that the Wittens were concerned about this issue. 

STAFF: General correspondence occur across multiple staff in the Planning Division. There is no shared log book of inquiries between planners only a record of applications which may be assigned to various planners. There is no mechanism to share conversations between planners. In other words, the planner assigned to this permit would have no prior knowledge of any inquiries or conversations with Planner Hunter Kelly.

Appellant: March 16, 2023 – That same day, Wittens speak to Mike Schieno, who agrees to look into the issue.
STAFF: Yellowstone County Code Enforcement was contacted by the adjacent property owners "The Wittens" to place a complaint about a building being constructed on the adjacent parcel (5005 US HWY 3), and were concerned it was being constructed too close to the property line.  Code Enforcement Officer, Mike Schieno reviewed the complaint and contacted the Zoning Coordinator, Nicole Cromwell and asked what the front lot line setback requirement was for a detached accessory structure in the Agriculture (A) zone district.  Nicole Cromwell responded that the front setback requirement was 20 feet, unless it was a barn, house, hay barn or horse barn that must be 35 feet from the property line. There was no specific discussion or review of the subject property at that time the discussion was general to district requirements.

Appellant: March 20, 2023 – Letter to Bryan White informing him of his need to obtain a Zoning Compliance Permit (ZCP).  The “concerned caller” discussed in this letter almost certainly is the Wittens.  The letter specifically identifies the proper setback at 20’, memorializing the County’s position of the setback in writing.  - The letter is forwarded to the Wittens, demonstrating that the County knows how to get in touch with the Wittens when it wants to. 
STAFF: Officer Schieno sent a notice to the "Whites" (attached) stating that the structure should be 20 feet from the property line, and included a zoning compliance permit application. Officer Schieno does not complete zoning compliance permit reviews nor does he administer the zoning code. Mr Schieno assists planning in enforcing the zoning code and often times he shares general information related to zoning. This letter (Exhibit A in attachment titled Application and Applicants Letter) is not a determination of compliance and Mr Schieno nor planning staff completed any sort of site specific analysis on the property to determine compliance at this time because no permit had been received, therefore general requirements were discussed. Short of a full property evaluation with planning staff Mr. Schieno would not have been able to relay the unique circumstances with this property, i.e. the absence of a front property line and the presence of the private access easement. Further, zoning regulations are administered by the Planning Division not County Code Enforcement. In the absence of a zoning compliance permit a full evaluation was not completed. 

Appellant: March 21, 2023 – Bryan White submitted ZCP
STAFF: Planning Division received an application for a Zoning Compliance permit for the structure and the permit was assigned to Karen Husman.  During the permit review process, Staff checked the Zoning Code and definitions to review the permit to make sure of the appropriate setback was a side setback of 15 feet and checked with other staff members to acquire a second and third opinion on the structure placement.  It was determined that the absence of a "front property line" would then default the setback requirement to a "side" setback requirement of 15 feet (difference of 5 feet).  March 22, 2023, PLNX-23-00886 was approved and issued (attached).  

Appellant: March 22, 2023 – Planning Staff approved ZCP contrary to the previous written opinion provided in Schieno’s letter. 
STAFF: The letter being referred to is identified as exhibit A in the applicants' submittal which is attached to this report. Officer Schieno sent a notice to the "Whites" (attached) stating that the structure should be 20 feet from the property line, and included a zoning compliance permit application. Officer Schieno does not complete zoning compliance permit reviews nor does he administer the zoning code. Mr Schieno assists planning in enforcing the zoning code and often times he shares general information related to zoning. This letter (Exhibit A in attachment titled Application and Applicants Letter) is not a determination of compliance and Mr Schieno nor planning staff completed any sort of site specific analysis on the property to determine compliance at this time because no permit had been received, therefore general requirements were discussed. Short of a full property evaluation with planning staff Mr. Schieno would not have been able to relay the unique circumstances with this property, i.e. the absence of a front property line and the presence of the private access easement. Further, zoning regulations are administered by the Planning Division not County Code Enforcement. In the absence of a zoning compliance permit a full evaluation was not completed.

March 22 through May 17, 2023 – County never reaches out to the Wittens to inform them that it had granted White’s ZCP application in a manner contrary to the opinion provided in Schieno’s letter and advising them of their right to appeal that decision.
STAFF: Staff acknowledges it would have been courteous to reach out to the property owner, but the administrative procedures in the code did not require follow up.

Appellant: May 18, 2023 – Phone call received from Monica Witten, staff consulted on the situation with the reviewing planner but do not inform the Wittens of the permit date or of the fact that their appeal deadline is set to run in a few days.  
STAFF: Staff informed the Planning Division Manager and Zoning Coordinator of the matter. Karen Husman was advised to contact the Witten's to explain how the determination was made.

Appellant: May 19, 2023 – The reviewing planner contact Monica Witten via phone to explain staff’s interpretation. Staff was informed the Witten’s would be contacting an attorney and they or their attorney would be in contact the Planning Manager.  Staff refuse to provide the Wittens with a copy of the permit, even though it is available publicly on the County’s website. 
STAFF: During staff's conversation with the Wittens Staff answered the questions asked (how was the 15' setback determined).  Staff explained the code section description and why the westerly lot line was not considered a "frontage" as described in the code. The reasoning provided by staff were not satisfactory for the appellants and the reviewing Planner provided contact information for the Planning Division Manager and Zoning Coordinator.

Appellant: May 22, 2023 – Justin Harkins calls to speak to County Planning (Karen Husman) who again demands public records request to receive copy of permit.  Husman does not disclose permit date to Harkins. 
STAFF: Staff did request a formal public records request be submitted to obtain the documents.

Appellant: May 22, 2023 – The Planning Division received a public records request for the property located at 5005 Highway 3.
STAFF:The request was received by Monica Plecker, Planning Division Manager. The request was forwarded to the clerk for processing.

Appellant: May 23, 2023 – Monica Plecker emailed Jill Smith and Justin Harkins informing them the request had been received and was provided to the Planning Clerk

Appellant: May 23, 2023 – Approximately 4 P.M. Monica and Justin spoke via phone to discuss options for appeal.

May 25, 2023, Planning Division Received formal appeal.

Planning staff recommends the Board affirm in whole the decision to approve the Zoning Compliance permit to allow a 15-foot property line setback for a new 4,800 square foot detached accessory building.