Planning staff recommends the City Council have a policy discussion on the requirement for mixed residential developments and new Planned Neighborhood Developments (PNDs) to provide developed open space and recreation areas. The Council conducted a public hearing on the 1st reading the draft amendment on July 24, 2023, and voted to review the amendment at a future Council Work Session. The current zoning regulations effective in February 2021, have this requirement in place and the text is in need of amendment to clarify and expand the requirement to include more specific types of open space and recreation areas. The Council initiated the amendments on April 24, 2023.

The new 2021 code incorporated the requirement to provide open space and recreation space in mixed residential developments of 3 acres or more and within any new property annexed to the city through the Planned Neighborhood Development (PND) process. Previously, the only way to require open space within a neighborhood was through the subdivision process. Some multifamily developments did not need to go through a subdivision process and the subdivision regulations allow the developer to "opt-out" from providing any on-site park or recreation space by giving the city an equivalent cash amount in lieu of dedicating parkland. The previous codes - zoning or subdivision - never required the development of dedicated parkland. The current subdivision regulations and state law still do not require development of parkland. The code for new multifamily developments over 3 acres does not specify any amount of open space or that it must be developed. There are three choices of open space type allowed for mixed residential developments. The language is also vague and hard to implement. Council directed staff to correct the code language to eliminate the vagueness and to be more specific on the size of open space and base it on the total area of multifamily development.

The Planned Neighborhood Development (PND) zone change process requires a minimum of 2 percent of the net area be designated as open space. The PND regulations refer to "net" area instead of gross area because this area can be counted towards the subdivision requirement for parkland. This subdivision requirement is based on net area. There are 5 types of open space to choose from in the PND process, but two of those are restricted to mixed use type developments. This code section requires development of the open space and continued maintenance either by a homeowner's association or by the city if it is accepted as public parkland. Most of the open space designated through the PND process has not been accepted as public parkland because of its size and intended uses. The City Council has expressed concern the types of open space designated through the PND process are too small or provide little recreational opportunity in these new neighborhoods. The Council directed staff to increase the minimum percentage and put in some criteria for choosing an open space type.

The proposed recommended changes to Sections 27-307, 27-308 (Mixed Residential zone districts) and 27-800 (Planned Neighborhood Development process) accomplishes the following:

• Identifies the minimum park area of 6,500 sf for each 3 contiguous acres of mixed residential development.
  • Creates an exemption if a developed public park or publicly accessible open space area is within 1/2-mile
• Requires mixed residential developments of more than 3 acres to provide open space equal to 5% of the gross area of mixed residential development
• Provides more definition for parklets, greens, linear parks, plazas and squares
• Requires a proposed linear park to be in accordance with the adopted Trial and Bikeway Master Plan
• Developments with internal trails or looped paths would not be recognized as a linear park

After Council discussion at the July 24, 2023, public hearing, there were some topics that warranted further discussion and clarification. Staff proposes the Council have a policy discussion with the following yes or no prompts. These high level discussion will provide direction to staff consistent with council’s consensus on policy issues. Council consensus on these questions will guide staff in developing alternative language for council consideration related to open space in mixed residential developments and through the PND process.

• PND required open space area should be increased from 2% of net area?

• Open space designated as a plaza, square, parklet, green, or linear park must be improved – grass, trees, benches, playgrounds, etc.? (Natural areas are not intended to be developed)

• Linear parks should make other infrastructure connections?

• Exemptions to developed open space requirements in mixed residential developments should be offered? (Further discussion on adequate definitions is provided below in a different bullet point of this staff report. This question is intended to focus solely on whether an exemption should even be considered).

If no, then Council should amend the ordinance to strike subsection (b) Exemption - or craft a more narrow set of criteria for exemption.

The Council was concerned at the public hearing about the broadness of the exemptions in the draft, and the lack of some definitions to guide a determination of "exemption". If Council chooses to leave the exemption in place, language can be crafted to narrow the criteria for an exemption. For example, the intent of the open space area in mixed residential developments is to meet the everyday needs of the residents - outdoor activities such as dog walking, cooking and eating meals, child's play area close to home, small social spaces such as picnic tables or sheltered seating. An exemption should provide residents of these developments with the same amenity and usefulness as on-site open space. Staff would recommend the exemption should only apply to public parks with similar amenities and as close as possible to the subject development.

• Parks are compatible adjacent to arterials?

Follow up on items raised during Council July 24, 2023, meeting not covered in above policy discussion and contained within the draft related to exemptions:

• Developed public park
• Public accessible open space

These two terms are not defined in the zoning code. The Council should discuss whether staff should add terms to the Zoning code to clarify the open space requirements and to make them more consistent with terms used within the existing city code.If these terms remain in the proposed amendment for exemptions, definitions should be added. Or, it may be the Council's decision to simply require that public owned parkland with amenities must be within a certain distance. Using language similar to this in the ordinance revision itself would not require creating new definitions. Staff is supportive of a limited allowance reflective of city owned parkland with developed amenities.

Zoning Commission June 6 and July 11, 2023
The Zoning Commission discussed the draft amendment on June 6, and was concerned with potential loopholes created by specifying a certain minimum acreage when the requirement would kick in, the lack of flexibility for mixed residential development in subdivisions that have already dedicated parkland or are within walking distance of a developed park. The Commission also expressed concern that open space did not have a minimum "depth or width" provision so un-useable areas might be designated for recreation. The Commission was also concerned with the added burden this places on mixed residential developments especially considering the crisis in housing the Billings area is currently experiencing. Mr. Doug Wild from the Home Builders Association also expressed concerns with the proposed revisions in light of the housing challenges.

Planning staff revised the draft amendment to address these concerns except for the potential to cost burden new mixed residential developments where no open space has been previously dedicated or developed. Until the 2021 zoning code amendments, open space provisions for new developments were exclusively handled through the subdivision process. The subdivision regulations do not require development of any dedicated parkland, only that it be provided. The open space dedicated through subdivision also must meet the city's standards for area, suitability for active recreation, and other park policies set by the city. In many cases, this leads a developer to provide cash-in-lieu of parkland dedication. While this provides revenue to the Parks Department, it does not provide the types of open space that are most usable for everyday outdoor activities in apartment communities such as outdoor dining, pocket park areas to accommodate a variety of recreation (sand boxes, play structures, benches, small areas fenced for dog play, etc.). Developers who provide these small spaces have to arrange for long term maintenance and cover liability. These amenities do add cost to monthly rents. 

The Zoning Commission received the staff report on this particular amendment on July 11, 2023. The Commission also received testimony from John Halverson of Sanderson Stewart. The Zoning Commission asked about how this would be administered and whether the exemptions provided any loopholes that could be exploited. Staff pointed out the potential loopholes were closed in the re-drafted amendment. The Commission members had some concern the requirements may push up the costs of renting an apartment or may deter builders from developing new mixed residential neighborhoods. Staff explained the provisions are modest - 5% of the gross area of 3 acres is only 6,500 square feet. Mr. Halverson stated he wanted to make sure that a developer could put in several small parklets that equal 6,500 square feet in total but not each parklet is 6,500 square feet. Staff explained this is how they would calculate the submitted plans for open space areas as a cumulative amount for all areas for open space and recreation.

City Council hearing July 24, 2023
The City Council conducted a public hearing and received the Zoning Commission recommendation on July 24, 2023. The Council had concerns regarding the language used for the exemption for mixed residential developments. Council members had concern with the radius to a developed park area that may include a multi-lane arterial street. This would make access to the park area from the residential development potentially hazardous. The City Council also was concerned with some terms such as "publicly accessible" and "open space" that were not defined in the zoning code and may be interpreted in multiple ways. The City Council was concerned there needed to be more fine detail in some parts of the proposed amendments. Testimony during the hearing was received from Doug Wild and John Halverson who also provided testimony to the Zoning Commission. Mr. Wild was concerned with the code requirement to connect what may be a private trail to a public trail system. Mr. Wild was in favor of the exemptions since it recognizes the previous public and private investment in recreational space. Mr. Halverson was concerned the Council was trying to fix a problem that had already been eliminated by the new code provisions. The results of the new code provisions are not yet evident in many areas because the code is so new. Mr. Halverson stated the Council might want to wait and see the results of the new code especially for new mixed residential areas.

The Council voted to send the proposed ordinance to a work session for more discussion. Planning staff has prepared some policy questions (see Background Section above).

The City Council made provision of local open space and recreation areas a priority during the last Growth Policy update (2016). These growth guidelines include the following:
Essential Investments:

• Planning and construction of safe and affordable interconnected sidewalks and trails are important to the economy and livability of Billings.
• Developed parks that provide recreation, special amenities (community gardens, dog parks, viewing areas), and active living opportunities are desirable for an attractive and healthy community
• Natural landscapes are important because they define the uniqueness of Billings and help protect the environment
• It is important to factor in maintenance costs when programming public spaces and infrastructure

Community Fabric:

• Outdoor public spaces provide casual and relaxing gathering areas for people
• Developed landscape areas in commercial areas encourage more pedestrian activity and vibrant commercial activity
• Natural landscapes and parks are important because they define the uniqueness of Billings and help protect the environment

Strong Neighborhoods:

• Walkable neighborhoods that permit convenient destinations such as neighborhood services, open space, parks, schools and public gathering spaces foster health, good will and social interaction
• Safe and livable neighborhoods can be achieved through subdivision design that focuses on complete streets, pedestrian-scale streetlights, street trees and walkable access to public spaces

Home Base:

• Common to all types of housing choices is the desire to live in surroundings that are affordable, healthy and safe

Other policy documents adopted by the City Council also echo these goals and strategies including numerous Neighborhood Plans (West Billings, Billings Heights, Central Terry, North Park, South Side, Southwest Corridor), the Comprehensive Parks Master Plan (2017) that identified the following:

• Newly developed neighborhoods with no access to recreational space
• Limits on funding for on-going maintenance of existing parks
• Limitation on resources to develop "legacy" parks (legacy = dedicated but undeveloped)
• Priority focus on small scale park amenities
• Changing demographics - increase in adults over 55 and over 70

Planning staff has provided some bullet points in the Background section above that will guide the discussion on what parts, if any, of the proposed draft need to be amended, deleted, clarified or new sections added. The list above is meant to illustrate the existing adopted City policies that support more access to open space and recreation areas.

The Planning Division budget may affect the Planning Division budget. Municode is the official codification company for Billings. Every amendment to the code has a fee that has usually been assessed and paid for by a department or division. However, the City Code is not particular to one Division or Department. It is utilized by many City staff and is designed to benefit and protect all City residents. It is appropriate and accurate for the cost sharing of codification costs for zoning code updates through the general fund.