Planning staff has reviewed this application and is forwarding a recommendation of denial based on the determinations for granting a variance.

REQUEST
A variance from Section 27-306, Table 27-300.5(A)5. requiring a minimum 5-foot side setback to allow a zero-side setback for the extension of a pool deck with a garage space below in a Suburban Neighborhood Residential (N3) zone, on Lot 2, Block 5 of Lee Heights Subdivision 2nd Filing, a 9,600 square foot parcel of land. The purpose of the variance is to allow the re-construction and extension of an existing pool deck that will be 30 inches or more above grade and to allow an enclosed garage space below the deck.
 

The applicant is requesting a variance to permit a zero side setback for an addition to the existing home. The proposed addition involves constructing a deck with a garage space underneath. This area of Billings is situated at the base of the rims, with the front of the lot being less steep than the back. Many surrounding homes were built in the late 1950s and early 1960s, prior to the establishment of current zoning regulations. Several homes along Granite Ave. do not appear to be set back 20 feet from the front property line. The applicant is seeking a variance to extend the deck on the east side of the home, with the storage area beneath extending up to the eastern property line.  Granting the variance would conflict with the purpose and intent of the zoning regulations and the Growth Policy. The 2021 Zoning Code designates the N3 District primarily for residential neighborhoods with single-family homes, while the 2016 Growth Policy prioritizes preserving neighborhood integrity and the intended use of land. Required setback distances promote healthy and safe environments, as encouraged by the Growth Policy. This project is not aligned with the neighborhood's character, as the home is already built, and further modifications would create a nonconforming structure without any land-specific hardship. In this case, the topography does not prevent the structural addition from complying with the 5-foot side setback requirement.

APPLICATION DATA
OWNERS:  Tracy Miranda
AGENT: Jeff Wollshlager, A-Line 
PURPOSE: the re-construction and extension of an existing pool deck that will be 30 inches or more above grade and to allow an enclosed garage space below the deck
LEGAL DESCRIPTION:  Lot 2, Block 5 of Lee Heights Subdivision 2nd Filing
ADDRESS: 1445 Granite
EXISTING LAND USE: Residential 
PROPOSED LAND USE: Residential 
EXISTING ZONING: First Neighborhood (N3)
CONCURRENT APPLICATIONS None
APPLICABLE ZONING HISTORY See Attachments

SURROUNDING ZONING & LAND USE
NORTH:
Zoning: P1
Land Use: City of Billings Owned Parkland
SOUTH:
Zoning:   N3
Land Use:  Residential single family    
EAST:
Zoning: N3
Land Use: Residential single family 
WEST:
Zoning: N3
Land Use: Residential single family (vacant)

Planning staff notified the surrounding property owners by mail, placed a legal advertisement in the Yellowstone County News, and posted the property with the required sign. The application was also posted on the Planning Division's web page for current zoning applications. No comments from any surrounding owners were received by staff at the time of writing this report.
 

The Board of Adjustment may:
· Deny the requested variance and adopt the proposed findings of fact for the review criteria, as recommended by staff;
· Approve the requested variance and adopt different findings of fact for the review criteria with added conditions, or no conditions;
· Allow the applicant to withdraw the variance request; or
· Delay action on the variance to a future BOA meeting.

Approval or denial of the requested variance will have no financial effect on the Planning Division budget.

Prior to granting a variance the Board of Adjustment shall evaluate the decision criteria and make the determination for the variance (Section 27-1627.D. and E.), as outlined below. 

 Section 27-1627.D.
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;
The lot is located at the base of the Billings Rims, where steep slopes make parts of the lot challenging to build on. The applicant intends to construct a deck on the east side of their house with a storage area beneath it. The 12-foot-wide deck, with a storage garage underneath, would be located on the edge of the east wall of the house directly adjacent to the property line. There are no unique circumstances that would prevent the applicant from adhering to the 5-foot side setback requirement. No hardship exists to justify the requested variance, as there is ample space within the required setbacks to position the structure. Additionally, approving this variance would grant the property owner a special privilege not afforded to other property owners in the area.

Although a variance was approved in 2001 for a side yard setback to accommodate an existing structure within this subdivision, both staff and the Development Review Committee (DRC) had recommended denial, this variance was granted for a house already constructed prior to zoning restrictions. Several past variances have been granted in this subdivision and the surrounding area for front and/or side setbacks; however, these variances were granted in cases where the land itself presented a hardship.
 
2.   That a literal interpretation of the provisions of this Chapter would deprive the applicant of rights commonly enjoyed by other tracts in the same district;
The homes surrounding the subject property in this area comply with the standard 5-foot side setback. Similar to Criteria 1, there is no hardship to justify the requested variance, as there is adequate space within the required setbacks to position the structure. Denying the variance would not violate the applicant's rights, which are in line with those of other properties in the district. There have been other variance requests in this area concerning setbacks, primarily along the rimrock. Seven of these requests were for reductions in the front setback, one for a rear setback reduction, one for a projection into the side setback, and five for side setback reductions. All requests were approved, except for one front setback reduction. In 2001, Variance 850 was granted to allow an existing structure to remain at its zero side setback location. This was the only variance approved for a zero side setback and was a unique case, as the structure had already been built and positioned next to the property line before zoning restrictions were implemented. (Please refer to the 'History' attachment regarding approved variances.)

 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;
This subdivision is older, and several properties are located closer to the front property line than typically permitted. Front yard setback variances have been justified in the past due to the steep rear yard slopes that reduce the buildable space on those lots. Similarly, side setback variances have been granted for properties facing topographical challenges. However, the subject property already has an existing house and deck, demonstrating that meeting the required setbacks is not a hardship. Approving this variance would grant the property owner a special privilege not afforded to others in the area.
 
4.   That the granting of the variance will be in harmony with the general purpose and intent of this Chapter and with the Growth Policy;
Granting the variance would conflict with the purpose and intent of the zoning regulations and the Growth Policy. The 2021 Zoning Code designates the N3 District primarily for residential neighborhoods with single-family homes, while the 2016 Growth Policy prioritizes preserving neighborhood integrity and the intended use of land. Required setback distances promote healthy and safe environments, as encouraged by the Growth Policy. This project is not aligned with the neighborhood's character, as the home is already built, and further modifications would create a nonconforming structure without any land-specific hardship. In this case, the topography does not prevent the structural addition from complying with the 5-foot side setback requirement.

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;
Staff is recommending DENIAL, but is providing the following recommended conditions for the variance request, if the BOA makes findings to approve the variance;

1. This variance approval is to allow zero side setback for a proposed addition to an existing dwelling and storage in a First neighborhood (N3) zone, an 9,600 square foot parcel of land generally located at 1445 Granite Ave. No other variance is intended or implied with this approval.
2. The variance is limited to the Lot 2, Block 5 of Lee Heights Subdivision 2nd Filing, Tax ID: A10156
3. The applicant will submit and obtain a building permit for the addition within 12 months of variance approval and have the addition completed within 24 months.
4. The applicant will construct the addition in substantial conformance to the drawings submitted with this variance request. 
5. The applicant will create and file with the office of the clerk and recorder a temporary construction easement between themselves and the adjacent property owner of Lot 3, Block 5, Lee Heights Subdivision 2nd Filing. This easement shall also be provided to the Planning Division. 
6. Construction or demolition activity will not occur prior to 7 am or after 8 pm daily.
7. The applicant shall meet all other city code requirements for the proposed addition with the exception of this variance.
8. Failure to begin or complete actions required by this approval within the time limits set forth shall void this variance.    
9. 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, lease holders, 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; and
If the variance is approved; the property owner shall apply for a building permit to construct the addition within 12 months and complete construction within 24 months. 

4.   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.
The granting of this variance would not allow a use that is not already allowed in the zoning district – N3 zoning districts allow residential remodeling and additions to existing structures.