This is a zone change request from Residential 9,600 (R-96) to Residential 7,000 (R-70) on Lot 16, Block 6, Suncrest Acres Subdivision, an 11,600 square foot parcel of land. The existing parcel has a side-by-side duplex constructed prior to the current zoning and is a nonconforming use in the R-96 zoning district. The owner conducted a pre-application neighborhood meeting on November 27, 2011, at 1:00 pm at the Granary at 1500 Poly Drive. The Zoning Commission conducted a public hearing on January 3, 2012, and is forwarding a recommendation of approval on a 3-0 vote. 

State law at MCA 76-2-304 requires that all zone changes be reviewed in accordance with 12 criteria. Using the 12 criteria to determine the appropriateness of the zone change request, the City Council may:
1. Approve the zone change request
2. Deny the zone change request
3. Allow withdrawal of the application
4. Delay action for up to thirty (30) days

Approval of the zone change should not have a financial impact on the city's tax base. The zone change may stabilize the taxable and market value of the property and therefore stabilize the city's tax base.

The applicant is requesting to rezone this property on the southeast corner of the intersection of Parkhill Drive and 12th Street West. Parkhill Drive is a collector street and carries about 4,000 vehicle trips per day. 12th Street West runs south from O’Malley Drive and is a local street. The applicant conducted a pre-application neighborhood meeting on November 27, 2011, and one surrounding property owner attended, Mr. Gaylen Klein of 1145 Parkhill Drive. The Planning Division notified the surrounding property owners on December 16, 2011, and no public comment has been received.

The Planning Division forwarded a recommendation of approval on a similar zone change for 2302 Meadowood Street (Zone Change #879). The Planning Division also forwarded a recommendation of approval to the Zoning Commission for this application based on the same criteria. The Zoning Commission concurred with the recommendation. In the past year, the Planning staff has found and reviewed similar zoning changes in R-96 neighborhoods that indicate the compatibility of the proposed R-70 zoning. A review of property within a few blocks of the property indicates at least 15 similarly developed parcels. Some were constructed as side-by-side duplexes or up-down duplexes. Many of the homes in the area were built in the early 1950s prior to zoning.  The side-by-side duplex dwelling at 1146 Parkhill Drive was constructed in 1955. It has been continuously used as a two-family dwelling since that time. Most lots in this subdivision and surrounding subdivisions were developed with single-family homes. Two-family dwellings are not an allowed use in the R-96 zone, however it is considered a legal nonconforming use and may continue so long as the use is not abandoned for more than 1 year, or damaged or destroyed by more than 50% of its replacement value at the time of the damage. Improvements to the structure can be done as long as those improvements do not exceed 50% of its replacement value. For example, the owner can replace the roof, add on to the garage, or build a deck so long as those improvements do not exceed 50% of the structure replacement cost.

The owner has proposed the zone change so the 2-family dwelling can be replaced in the future if it is damaged or destroyed. The owner currently lives in one of the units and rents the other unit. The proposed zoning of R-70 allows single family dwellings on lots of at least 7,000 square feet and 2-family dwellings on lots of at least 9,600 square feet. The lot is 11,600 square feet. The proposed zoning of R-70 would make the 2-family dwelling compliant with zoning.

The proposed R-70 zone is dissimilar in so far that it allows 2-family dwelling units and the R-96 zone does not allow attached dwellings. From Virginia Lane to the east, the north side of Parkhill Drive is mostly R-96 zoning. There are four properties north of Parkhill Drive that are zoned R-60 or RMF-R. On the south side of Parkhill Drive, there is R-96 zoning from 8th Street West to 17th Street West. Avenue F, the parallel street to the south, property is zoned R-70. Of 133 properties within 600 feet of this location, 6 lots have a duplex dwellings and 4 of these are legal nonconforming duplexes. Although this is not significant percentage of the total number of properties within 600 feet, it does indicate these properties may diminish in value through lack of investment in maintenance and upgrades due to the risk of loss – through accidental fire, natural disasters and other unpredictable calamities. This property has the lowest building value as compared to others on Parkhill Drive. The building value still exceeds the land value by 7 percent (building value 57% and land value 43%). Other building values in the area however range from 65% to 75% of total property value.

Due to the size and location of the parcel, the proposed zoning must be evaluated to determine if it meets the criteria for the creation of an illegal spot zoning. Spot zoning - as defined by the Montana Supreme Court - is a three-prong test and each prong should be evaluated separately but weighed as a whole. A "yes" answer to each of the three tests is usually required before determining that a spot zoning has occurred. The precedent case is Little v Board of County Commissioners of Flathead County in 1981. The first test or criteria used by the courts to determine a spot zoning is whether the requested use is significantly different than the prevailing use in the area. The requested use is different than the prevailing single family use in the area, however the Planning staff does not believe it is significantly different than the prevailing use. More recent court cases on illegal spot zoning have not made a fine distinction between the allowable development densities of residential zoning districts (Boland et al v City of Great Falls, 1995). In the Boland case, the City of Great Falls rezoned property from a single family zone to a multi-family zone and the neighbors appealed this as an illegal spot zoning. The Supreme Court held that the proposed zoning was not significantly different based on the differences in development density and found the proposed zone was therefore not significantly different from the surrounding single-family zoning.

The second criterion from the Little v Board of County Commissioners of Flathead County is whether the area for the requested use is small. This factor is more concerned with the number of benefited landowners rather than physical size of the property. The requested use only applies to the owner’s property of 11,600 square feet and the physical area affected is rather small. A re-zoning may benefit more than the individual owner of this property by allowing the owner to make investments in the property and to sell to a larger market as a conforming property. The re-zoning would remove the risk to investment in the building and improvements to the property.

The third criterion is whether the zoning is designed to benefit only one landowner at the expense of the surrounding property owners or the general public. The re-zoning does benefit one land owner however, as noted above, the land to building ratio should be improved once the investment risk is reduced. The surrounding market values may be beneficially affected by the new zoning.

The Zoning Commission conducted a public hearing on January 3, 2012, and received the Planning staff recommendation and testimony from the applicant, Patrick Naglich. No other testimony was received. The Zoning Commission is fowarding a recommendation of approval on a 3-0 vote.

The Planning Division reviewed the application and recommended approval based on the twelve (12) criteria for zone changes. Illegal spot zoning is not one of the twelve review criteria for zone changes required by Montana law and local zoning regulations. A court may determine whether an illegal spot zoning has occurred and reverse a zoning decision based on this determination. The subject property is surrounded by R-96 and the proposed zoning is compatible with the surrounding zoning and neighborhood character. The existing 2-family dwelling pre-dates the May 1972 zoning and if continued in its current legal nonconforming status may erode surrounding property values due to dis-investment in maintaining or improving the dwelling.  The surrounding properties are primarily single family dwelling although there are 3 two-family dwellings within the immediate area. The 2008 Growth Policy encourages predictable land use decisions that are consistent with neighborhood character and land use patterns. The existing use and proposed zoning are consistent with this neighborhood and land use pattern.

Prior to any action to approve or disapprove, the City Council will consider the recommendation
of the Zoning Commission and shall consider the following:

1. Is the new zoning designed in accordance with the Growth Policy?
The proposed zone change is consistent with the following goals of the Growth Policy:
• Predictable land use decisions that are consistent with neighborhood character and land use patterns. (Land Use Element Goal, page 6) 
The proposed zoning would permit an existing nonconforming use to continue in a single family residential neighborhood. The proposed zoning is not significantly different from the proposed zoning. The neighborhood was fully developed prior to the 1972 zoning. Removing the risk of the legal nonconforming use will allow the property to improve.
The proposed zoning is consistent with the surrounding character of the neighborhood. Six other properties in the immediate area have been developed with attached dwelling units.
• The proposed zone does not meet the three tests for creation of an illegal spot zone.
1. The requested use is not significantly different than the prevailing use in the area.
2. The area requested for the use is small in area.
3. The requested zoning benefits this owner but also provides benefit to the surrounding owners by allowing regular maintenance of the building and improvements.

2. Is the new zoning designed to lessen congestion in the streets?
There should be no effect of traffic congestion. The 2-family dwelling is an existing structure and no increase in dwelling unit density is proposed.

3. Will the new zoning secure safety from fire, panic and other dangers?
The subject property is currently serviced by City Fire and Police. No change to the existing use is proposed that would affect public safety.

4. Will the new zoning promote health and general welfare?
The proposed zoning would permit a 2-family dwelling to continue in perpetuity in a single family neighborhood. The surrounding property values may be positively affected by the zone change. The Unified Zoning Regulations do specify minimum setbacks and lot coverage requirements for the proposed zoning district in order to promote health and safety.

5. Will the new zoning provide adequate light and air?
The proposed zoning provides for sufficient setbacks to allow for adequate separation between structures and adequate light and air.

6. Will the new zoning prevent overcrowding of land?
The proposed zoning, like all zoning districts, contain limitations on the maximum percentage of the lot area that can be covered with structures.  The R-96 and the proposed R-70 zone allow 30% lot coverage. The proposed site plan does not increase the foot print of the existing building. 

7. Will the new zoning avoid undue concentration of population?
The new zoning does avoid undue concentration of population. The R-96 zoning only allows single family homes on a minimum lot size of 9,600 square feet. The proposed zoning would allow 2-family dwellings on a lot of at least 9,600 square feet. The 2-family dwelling exists and there is no proposed increase in dwelling unit density. 

8. Will the new zoning facilitate the adequate provisions of transportation, water, sewerage, schools, parks, fire, police, and other public requirements?
Transportation: The proposed zoning will not impact the surrounding streets. 
Water and Sewer: The City provides water and sewer to the property through existing lines.
Schools and Parks: School District #2 will provide education to students that may live on this parcel. There should be no impact to school census from the proposed zone change.  
Fire and Police: The subject property is currently served by the City of Billings fire and police departments. 

9. Does the new zoning give reasonable consideration to the character of the district?
The proposed zoning will permit a legal nonconforming use – a 2-family dwelling, to continue within an existing single family residential neighborhood. Six of 133 surrounding properties within 600 feet have also developed as a 2-family dwelling. Zoning to the south across the alley is R-70 and R-96 exists to the north, east and west. The character of the neighborhood is single family and two-family dwellings. The proposed zoning does give reasonable consideration to the character of the district.  

10. Does the new zoning give consideration to peculiar suitability of the property for particular uses?
The subject property is suitable for the requested zoning district. While most surrounding property is developed for single detached dwelling the property has supported the two-family dwelling for over 55 years and the lot is 11,600 square feet in area. 

11. Was the new zoning adopted with a view to conserving the value of buildings?
Surrounding residential property to the north, south and east have much higher taxable value for buildings than this property. The taxable value of the building at 1146 Parkhill Drive represents 57% of the total assessed value. Other properties exhibit much higher building values as a percentage of total value – ranging from 65% to 75% of total value. This is likely due to the inherent risk associated with a legal nonconforming use. At any time, the investment may be damaged or destroyed without the possibility of rebuilding under the current zoning. The proposed zoning of R-70 would preserve the right of the owner to re-build a 2-family dwelling so the investment on the part of this owner could be preserved. The value of surrounding property may be positively affected by the proposed zoning.

12. Will the new zoning encourage the most appropriate use of land throughout such county or    municipal area?
The proposed zoning will permit the current two-family dwelling to continue and allow improvements to the building.