This is a zone change request from Residential 9,600 (R-96) to Residential 7,000 (R-70) on Lot 8, Block 1 of Meadowood Subdivision located at 2302 Meadowood Street. The property is owned by Mark Dawson and BlueLine Engineering, represented by Marshall Phil, is the agent. The owner and agent conducted a pre-application neighborhood meeting on December 28th, 2009 at 6:00 pm at the Century 21 office at 1605 Shiloh Road. The applicant requested a delay at the hearing on February 2, 2010. The Zoning Commission granted the delay until March 2, 2010. The Zoning Commission conducted the public hearing on March 2 and is forwarding a recommendation of denial and adoption of the 12 criteria for this zone change on a 3-1 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

There should be no fiscal impact on the city from approval or denial of this zone change request.

The applicant is requesting to rezone this property on the northwest corner of the intersection of Meadowood Street and Lyman Avenue. Lyman Avenue dead ends at the west property line in an alley that runs north and south between Poly Drive and Colton Boulevard. The applicant conducted a pre-application neighborhood meeting on December 28th, 2009, and no surrounding property owners attended. The Planning Division notified the surrounding property owners on January 15th, 2010 and no public comment has been received. The current dwelling on the property is a duplex (2-family dwelling) that was constructed prior to zoning in 1956. Most lots in this subdivision and surrounding subdivisions were developed with single-family homes. One lot within 600 feet north and east of this property was developed with a 2-family dwelling in 1953. 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 and agent have proposed the zone change so the 2-family dwelling can be replaced in the future if it damaged or destroyed. In addition, the owner is contemplating creating two unit ownerships (a condominium) so each dwelling unit could be separately owned. Under the current zoning of R-96, only a single family dwelling could replace the 2-family dwelling. To create a condominium, the Planning Division must certify the property complies with zoning and the property does not comply with the current zoning. 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 9,836 square feet. The proposed zoning of R-70 would make the 2-family dwelling compliant with zoning.

The proposed R-70 zone is dissimilar to the surrounding zoning of R-96. From 17th Street West to Rehberg Lane and between Colton Boulevard and Rimrock Road is a solid section of R-96 zoning which only allows single family dwellings. There are few properties within this area that have legal nonconforming 2-family dwellings. Of 105 properties within 600 feet of this location only 1 lot had a legal nonconforming duplex dwelling.

Due to the size and location of the parcel, this proposal likely 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 to determine a spot zoning is whether the requested use is significantly different than the prevailing use in the area. The requested use is significantly different than the prevailing single family use in the area. The second criterion 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 less than 1/4 acre and the physical area affected is rather small. 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 and it appears that the request is at the expense of the surrounding property owners. The surrounding market values may be affected by the new zoning.

The Planning Division reviewed the application and recommended denial based on the attached 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. Some of the twelve review criteria for zone changes are directly related to the determinations for illegal spot zoning. The subject property is surrounded by R-96 and the proposed zoning is not compatible with the surrounding zoning or neighborhood character. Although the existing 2-family dwelling pre-dates the May 1972 zoning, it is also not in character with the surrounding neighborhood. 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 not consistent with this neighborhood and land use pattern.
 
The Zoning Commission conducted a public hearing on March 2, 2010 and is forwarding a recommendation of denial on a 3-1 vote.

The Zoning Commission held a public hearing on March 2, 2010, and no testimony was received from the applicant, the agent or the public.

The City Council Determinations – Zone Change #861 – 2302 Meadowood Street
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 inconsistent 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 primarily single family residential neighborhood. All of the surrounding property is zoned R-96 and is developed for single family uses.
The proposed zoning is inconsistent with the surrounding character of the neighborhood, which is single-family development.
• The proposed zone meets the three tests for creation of an illegal spot zone.
1. The requested use is 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 a single owner and not the community and may be at the expense of surrounding owners.

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 primarily single family neighborhood. The surrounding property values may be affected by this dissimilar use. 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 will provide 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. Only 1 out of 105 surrounding properties within 600 feet have also developed as a 2-family dwelling. All of the surrounding zoning is R-96 with the exception of the Poly Drive Elementary school (zoned Public). This does not 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 may be suitable for the requested zoning district if surrounding properties were also developed for 2-family dwellings or if the subject property was adjacent to other similarly zoned property. This is not the case at this particular location.

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 land at 2302 Meadowood Street is much higher than the taxable value for the building in the most recent state reappraisal. It appears from the exterior photographs of the dwelling that maintenance has been deferred on the structure. 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 affected by the continuation of this dissimilar use in the single family neighborhood.

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 development to continue that is not alike in character with the surrounding single-family residential uses.