This is a zone change from Residential 7,000 (R-70) to Community Commercial (CC) on the north 36,000 square feet of Lots 2 & 3, Pierce Subdivision. The total area of the property is 1.72 acres and includes the Pierce Subdivision lots as well as Lots 1 and 2 of Block 2, in Robbins Subdivision. Only the northern 36,000 square feet of Lots 2 & 3 of Pierce Subdivision is proposed for this zone change. The property is located at 808 Grand Avenue. A pre-application neighborhood meeting was held at 805 Alderson Avenue on December 18, 2014. The Zoning Commission conducted a public hearing on February 3, 2015, and is forwarding no recommendation on a 2-2 vote on a motion to recommend approval and adoption of the findings of the 10 criteria.

City Council may:

• Approve the zone change and adopt the findings of the 10 criteria as proposed by the Planning Division;
• Deny the zone change and adopt different findings of the 10 criteria;
• Allow the applicant to withdraw the zone change; or
• Delay action on the zone change request for up to 30 days.

Approval of the zone change will increase the city's tax base in an area already served by city infrastructure and services. Denial of the zone change will leave the existing residential zoning in place but will not diminish the city's tax base.

The applicant is proposing to re-zone the northern 36,000 square feet of Lots 2 and 3 of Pierce Subdivision on the south west corner of the intersection of Grand Avenue and 8th Street West. The property includes additional land to the south where an existing church and school building are in the process of re-use as a Montessori School. The northern portion of the property has the vacant parsonage home that is slated for demolition. In addition, there is a private access easement from 8th Street West to Lot 4 of Pierce Subdivision (residence of Fred and Jean Pierce). The proposed zone change will not extinguish this access easement. There is commercial zoning on the north side of Grand Avenue and on the east side of 8th Street West from Grand Avenue to the alley. There is residential zoning to the west and south. If the zone change is approved, and commercial development occurs, special development criteria will apply to ensure screening, buffering and protection of those adjacent residential properties. These criteria and standards include lighting, signage, and screening of mechanical equipment to reduce noise.

The adjacent streets, Grand Avenue and 8th Street West, are classified as a principal arterial and collector street, respectively. Grand Avenue carries about 16,000 vehicles per day and 8th Street West carries about 6,000 vehicles (2014 Traffic Count). The traffic counts at this location have remained stable for the past 10 years. Any new access to the property other than the existing approach from 8th Street West will be controlled by the City Engineering Division. The owners do not have a proposed development or buyer for the property at this time. The proposed CC zone could allow a variety of commercial ventures such as retail services, restaurants, gas station, car wash, bar or casinos as well grocery stores and mixed residential and commercial uses. Any on-premise liquor service with gaming would require a special review approval. Any drive through food service would also require special review approval.

The subject property has been zoned R-70 since the current city zoning was adopted in May 1972. The surrounding subdivisions and lots have submitted zone changes from residential zoning to commercial zoning several times in the past 43 years but primarily during the late 1970s when Grand Avenue was developing retail and service businesses west of 8th Street West. Five of the 6 zone changes in the area were submitted during that time. Two were approved, 2 were withdrawn and 1 was denied by the City Council. The denied zone change was for the northeast corner of Broadwater Avenue and 8th Street West from R-70 to Neighborhood Commercial (NC) for a proposed new convenience store.

The Zoning Commission conducted a public hearing on February 3, 2015, and received the Planning Division recommendation and testimony from the applicant, Fred and Jean Pierce, and received a letter in opposition from Bill Cole, attorney for Fred and Jean Pierce.

David Mitchell, agent for the  applicant, testified in favor of the application. Mr. Mitchell stated the applicant previously submitted a different zone change application in October of 2014. The application was withdrawn after discussion with the surrounding owners and their concerns regarding the re-use of the Nazarene Church building at 805 Alderson. Mr. Mitchell stated the new application was submitted after a new tenant, Sunrise Montessori School, was secured for the church building. Mr. Mitchell stated the new tenant and use is fitting in nicely with the neighborhood. Mr. Mitchell stated that the subject property owner and Mr. & Mrs. Pierce have been discussing the possibility of moving the access easement for the Pierce property south to Alderson Avenue or another location that would benefit the Pierce property. Mr. Mitchell stated all of the frontage on Grand Avenue is commercial and the re-zoning to CC is supported by the Planning staff findings of the 10 criteria. Mr. Mitchell stated the owner is willing to pay for Land Design landscape architects to develop options for relocating the Pierce property access easement. Mr. Mitchell stated any development of the property with commercial zoning will have to protect the groundwater spring on Mr. Pierce's property as well as the access easement. Mr. Mitchell testified the owner is concerned if the easement stays in the current location, it may de-value Mr. Pierce's property in the future. In response to a question from Commission member Barbara Hawkins, Nicole Cromwell stated the City code generally prohibits commercial access through residential property. Ms. Cromwell stated the owners will need to agree on either continuation of the access or agree to its re-location. She stated the existence of an access easement should not have a bearing on the whether the proposed zoning is appropriate at this location.

Mr. Fred Pierce of 824 Grand Avenue testified in opposition to the zone change. He stated his family has lived on this property for at least 75 years and disagrees the zoning is appropriate for this corner. He stated he is concerned any development of the lot will damage the underground spring he uses to maintain the landscaping on his 2-acre homesite and negatively effect his access easement to 8th Street West. He stated he and his wife are not interested in re-locating the access easement but are willing to discuss whatever options are proposed by Mr. Griffin. He stated he has no choice but to oppose the zone change.

Mrs. Jean Pierce of 824 Grand Avenue testified in opposition to the zone change. She stated her attorney, Bill Cole, did want to attend the hearing but was called to Helena for a meeting with the Governor. She stated that is why the letter from Mr. Cole was only submitted today (February 3) since he planned to attend the hearing. She stated they have spent a lot of time, effort and resources to landscape the property including the backyard. She stated re-routing the driveway through their backyard would destroy all of this effort. She stated they were very concerned about the effect on the spring by any development of the lot including the potential effect on downstream users.

Mr. Mitchell provided testimony in answer to the concerns. He stated if the zone change is approved any development would identify and protect all the resources of the property including the underground spring and the Pierce's access easement. He stated if the Pierce's decided one of the options to move the access was acceptable they would be willing to mitigate some or all of those costs.

Mike Boyett made a motion to recommend approval and adoption of the findings of the 10 criteria. The motion was seconded by Barbara Hawkins. Member Dan Wagner stated he was not comfortable voting in favor of the zone change with the issue of the access easement unresolved. Mike Boyett stated he was also concerned with the access easement issue, but the applicant should have the ability to develop the property in the same way other property on Grand Avenue has developed. In response to a question from the Commission, Mr. Mitchell stated Mr. & Mrs. Pierce are under no obligation to change the easement through lots 2 & 3. Mr. Mitchell stated if the Zoning Commission delayed the decision on a recommendation because the easement issue was unresolved, they could be back in 30 days with still no resolution. Mr. Mitchell asked the Commission to act on their recommendation this evening. In response to a question from the Commission Mrs. Pierce stated if the zoning is recommended for approval, their negotiating position on the easement will be lost. She asked the Commission to not recommend approval.

The motion was not passed on a 2-2 vote with Barbara Hawkins and Mike Boyett in favor and Dan Wagner and Chairman Leonard Dailey, Jr. opposed.

The Zoning Commission is not forwarding any recommended findings for the 10 criteria for Zone Change 932. The City Council may consider the following findings prepared by the Planning Division in support of approval of the zone change, or develop alternative findings for 1 or more of the 10 criteria to support a denial of the zone change. The findings below were recommended by the Planning Division to the Zoning Commission. 

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 allow an underutilized property within the city limits to develop in a similar pattern with the surrounding property. The zoning district is compatible with the neighborhood character and land use patterns. It is located at the intersection of 2 high traffic streets. Adjacent residential zones will be protected through application of the criteria for development in Section 27-612.e of the Unified Zoning Regulations that requires mitigation of light, noise, traffic and other typical commercial site issues.
The Infill Policy encourages development of vacant and undervalued property within the city limits with emphasis on efficient use of existing city infrastructure and services. 

2.   Is the new zoning designed to secure from fire and other dangers?
The new zoning requires minimum setbacks, open and landscaped areas and building separations. The new zoning, as do all zoning districts, provides adequate building separations and density limits to provide security from fire and other dangers.
 
3.   Whether the new zoning will promote public health, public safety and general welfare?
Public health and public safety will be promoted by the proposed zoning. Development of the vacant land in the city will promote the public health and safety as well as the general welfare by developing the final corner of this major intersection of Grand Avenue and 8^th Street West. The applicant and developer is cognizant of the access easement, the underground spring as well as the adjacent residential neighborhood that will need protection from intrusion of commercial activity.
 
4.   Will the new zoning facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirement?

Transportation: The proposed zoning will have an impact on the surrounding transportation systems. The City Engineering Division will work closely with the owner to ensure impacts are minimized.  

Water and Sewer: The City will provide water and sewer to the property. There should be no additional impact to the system from the proposed zoning.   

Schools and Parks: There may be a limited impact to schools from the proposed zone change. Residential development is an allowed use in both the current zoning and the proposed zoning. A development plan and specific use of the property is not yet finalized.    

Fire and Police: The subject property will be served by city public safety services. The Police Department had no concerns with the zone change and the Fire Department will be involved in any development plan and building permit(s). Fire Station #4 is approximately 1 mile to the south and east.   
 
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 effect motorized and non-motorized transportation?
The new zoning will have an effect on vehicle and pedestrian traffic. Any new development will need to be evaluated for its impact on Grand Avenue and 8^th Street West. Existing sidewalks may need to be repaired or replaced at the time of a building permit. Construction on the site may disrupt traffic patterns for short periods of time. Any new access will be evaluated by the City Engineering Division. The existing private access easement across the property from 8^th Street West must be retained but it could be re-located by mutual agreement of the property owners.
 
7.   Will the new zoning promote compatible urban growth?
The new zoning does promote compatibility with urban growth. The proposed zoning will allow commercial and residential uses with an efficient density as an infill project.
 
8.   Does the new zoning consider the character of the district and the peculiar suitability of the property for particular uses?
The proposed zoning does consider the character of the district and the suitability of the property for a mix of housing types in the neighborhood.
 
9.   Will the new zoning conserve the value of buildings?
The property is currently vacant except for a vacant residential structure. The value of existing buildings should increase when the property is developed.
 
10. Will the new zoning encourage the most appropriate use of land throughout the City of Billings?
The proposed zoning will permit commercial uses and mixed uses of similar type and density as the surrounding neighborhood and is the most appropriate use of land at this location.