This is a special review request to locate a beer and wine license with gaming for a 2,000 square foot tenant space in a proposed new 3,500 square foot building at 4007 Avenue B. The applicant is also requesting a waiver of the required 600-foot separation distance measured property line to property line from this location to the Shiloh United Methodist Church at 1810 Shiloh Road. The separation distance is approximately 500 feet from the north property line of 4007 Avenue B to the south property line of the church property.

Special Review applications are reviewed using City Code criteria referenced in the Alternatives Analyzed section of this memo. Special Reviews do not require an ordinance for approval, are not zone changes on property; rather, are tied to specific uses that are allowed in a given zoning district but are subject to a review by the City prior to the use being allowed. Special Reviews, unlike zone changes, may be conditioned to mitigate possible impacts from the use on the subject property or surrounding properties.

City Council may:

• Approve the request;
• Conditionally approve the request;
• Deny the request;
• Allow the applicant to withdraw the request; or
• Delay action on the request for up to 30 days.

APPLICATION DATA:
OWNER: RC Property Holdings, LLC
AGENT: Rob Veltkamp
LEGAL DESCRIPTION: Lot 1A, Block 2, Goodman Subdivision, 3rd Filing
ADDRESS: 4007 Avenue B
CURRENT ZONING: Community Commercial (CC)
EXISTING LAND USE: Vacant
PROPOSED USE: 2-tenant building with a transferred beer and wine license including gaming in a 2,000 square foot space for a bar/casino
SIZE OF PARCEL: 23,671 square feet

The Planning Division reviewed the application and recommended conditional approval of the special review request and the waiver of the 600-foot separation requirement. The Zoning Commission did not concur with this recommendation.

Before a staff recommendation of approval or conditional approval can be made to the Zoning Commission, each special review request must demonstrate conformance with three primary criteria per BMCC 27-1503:
1) The application complies with all parts of the Zoning Regulations,
2) The application is consistent with the objectives and purposes of the Zoning Regulations and the Growth Policy, and
3) the application is compatible with surrounding land uses and is otherwise screened and separated from adjacent land to minimize adverse impacts.

This application conforms to the first criteria in so far that the zoning regulations adopted by the City Council have designated this zoning as an area where on-premise service of alcohol with gaming may be allowed by special review approval. The proposed site plan meets all the requirements of the zoning regulations for setbacks, building height, clear vision areas and lot coverage. The proposed location did not meet the minimum required separation distance, measured property line to property line, from the Shiloh United Methodist Church property at 1810 Shiloh Road. The Planning staff recommended the waiver of this separation requirement since there are numerous buildings that obstruct any direct line of sight between the 2 properties. This is one of the criteria the Zoning Commission and City Council may consider when reviewing a waiver request. The Zoning Commission did not concur with the staff recommendation to grant the waiver.

The Planning staff found the application met criteria from the second requirement and was consistent with the objectives of the 2016 Growth Policy. The Zoning Commission did not concur with the staff findings regarding the 2016 Growth Policy.

The Planning staff proposed the application was consistent with the following:
Essential Investments:

• Infill development and development near existing City infrastructure may be the most cost effective

Community Fabric:

• Developed landscape areas in commercial areas encourage more pedestrian activity and vibrant commercial activity

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
• Implementation of the Infill Policy is important to encourage development of underutilized properties

Prosperity:

• Successful businesses that provide local jobs benefit the community
• Retaining and supporting existing businesses helps sustain a healthy economy

The proposed development will fill in a vacant parcel along a major transportation corridor and will help support a local business and make the use of the multi-use path more desirable for the area. Vacant lots or vacant buildings discourage pedestrian activity. An "unfinished" landscape on this stretch of Shiloh Road also discourages other investment in the area.

The Planning staff found the application met the third criteria in that it is compatible with surrounding land uses in the area. The Zoning Commission did not concur with this finding.

The Zoning Commission believed granting a waiver of the 600-foot separation requirement would set a limiting and controlling precedent in this matter and would open the surrounding neighborhood to un-mitigated impacts from the development. The Planning staff recommended 14 conditions of approval to ensure the development would not have un-mitigated impacts to the surrounding land uses. The Zoning Commission found these conditions to be inadequate to mitigate the negative public safety impacts from the proposed bar and casino. The Zoning Commission did not propose any different or additional conditions that would mitigate any negative public safety impacts from the proposed bar and casino.

If the application is approved a new building will be placed on this vacant land. Taxable value will increase and raise the City's tax base. If the application is not approved, the property will remain vacant longer.

This is a special review request to relocate an existing beer and wine license with gaming from Lucky's Grand Casino at 1411 13th St. West to this new location at 4007 Avenue B. The proposed sports bar and casino will be a second location for the current Palms Grand Casino at 1112 Grand Avenue. The proposed name of this new location is Palms West Pub and Casino. The new location is proposed for 2,000 square feet of the new 3,500 square foot building. The remaining 1,500 square feet will be for a new sandwich shop - TOPZ Sandwich Company - featuring dine-in or drive-through service.

The location is less than 600 feet south of a property primarily used for a church - Shiloh United Methodist Church at 1810 Shiloh Road. The local zoning code requires a property line-to-property line separation between locations that serve alcohol and any property used primarily for a church, a school, or public park with playgrounds or playing fields. The proximity of the church property will require a waiver from the City Council to allow the sale of alcoholic beverages in this location. A waiver may be granted when 1 or more conditions exist such as the lack of a pedestrian connection, visual barriers between the locations or separation by an arterial street.

This location is on the corner of Shiloh Road, a principal arterial street, and Avenue B, a local commercial access street. Average daily traffic on Shiloh Road is about 13,750 vehicle trips per day (a 3-year average). This is modest average daily traffic for a 4-lane arterial street. Poly Drive between 13th St. West and Virginia, a 2-lane minor arterial street, regularly carries more than 10,000 vehicle trips per day. This location is 1 block north of the major arterial intersection of Grand Avenue and Shiloh Road. Avenue B and Shiloh Road is a full access intersection and this location will only have driveway access off Avenue B and not Shiloh Road. This side of Shiloh Road carries a 10-foot wide multi-use trail. Trail use counts in this area were last done in 2015 but indicate about 100+ users on the trail each day. This is the 3rd highest trail count section of all the sections monitored by the City.

The property has been zoned CC since 1994 when the property was subdivided and annexed to the City. It has been 20+ years since the first commercial building - the Holiday Station - was constructed in this subdivision. Several on-premise alcohol service licenses have been granted in and around this area since 1998 when the first special review was granted to Bottles and Shots at 3925 Grand Avenue. This proposed license location is also directly adjacent to a principal arterial street but is not an all beverage license. Only beer and wine may be served with the proposed license. Gaming is attached to this license so video gaming will be offered.

The proposed location is within 600 feet of a church located at 1810 Shiloh Road. The local code requires measuring the separation distance from property line to property line. The City Council may consider granting a waiver if it finds a physical barrier exists. These can include a visual barrier. In this instance, buildings between the 2 locations obstruct any direct line of sight and can be considered a basis for granting a waiver. The Planning staff recommended the 600-foot separation requirement be waived for this application but the Zoning Commission did not concur with this recommendation.

The City Zoning Commission conducted a public hearing on August 7, 2018, and received the staff recommendation, testimony from the applicant and from surrounding property owners. Mr. Veltkamp, owner and applicant and Kasey Lowe of Studio 4 Architects, testified on the details of the proposed businesses and site plan. Mr. Veltkamp explained the beer and wine license with gaming was purchased from Lucky's Grand Casino at 13th and Grand Avenue. The license must be re-located in a short time period as dictated by state regulators. In response to a question from Commission member Ulvestad, Mr. Veltkamp stated the 2,000 square feet is more than enough for the beer and wine license. Lucky's Grand Casino was a little over 2,500 square feet. Mr. Veltkamp stated the former Lucky's location at Grand and 13th St. West along with the former St. Vincent's Thrift Store will be demolished next year to make room for a new branch location for Yellowstone Bank. In response to a question from Commission member Mike Boyett, Mr. Veltkamp stated the existing trees along the north property line belong to Sylvan Nursery and not the subject property.

Kasey Lowe from Studio 4 Architects reviewed the site plan and details of the development. She stated the property will comply with the recommended 14 conditions of approval as well as the North Shiloh Corridor Overlay District. In response to a question from Mike Boyett, Ms. Lowe stated there is no specific location on site yet for snow storage but this detail will be finalized if the special review moves forward. In response to a question from Dennis Ulvestad, Mr. Veltkamp stated the existing Palms Grand Casino at 1112 Grand is about 2,500 square feet and the proposed floor area for this location is 2,000 square feet.

Bill Warner of 3390 Canyon Drive D-16, testified in opposition. He stated he attends Shiloh United Methodist Church and believes there are enough casinos in Billings and in this area already to satisfy any need or demand for such entertainment. He stated the City should hold to the 600-foot minimum separation requirement. He stated there are plenty of other sites not within 600 feet of churches, schools or playgrounds to locate a casino.

Patsy Peretti of 4021 Avenue B testified in opposition. She stated her family business owns the lot directly west of the subject property. She stated when they purchased and developed their lot, the Goodmans stated this area would only be for professional businesses. She stated she was concerned about the lack of notice to owners of this public hearing. Staff provided written mailed notice to 19 surrounding property owners within 300 feet of the proposed location as required by local regulations. Ms. Peretti stated she copied and mailed the notice letter to many other businesses and property owners including the church, 500 feet to the north. She urged the Commission to not approve the waiver or the location of the bar and casino.

Mike Heffner of 4209 Heffner Lane testified in opposition. Mr. & Mrs. Heffner also provided a letter of opposition. He stated if the waiver is granted it sets the stage to grant further waivers in the area of this church and other churches along this corridor. He stated the Sylvan Nursery property is a large parcel and is for sale. This parcel is also zoned Community Commercial and another bar or casino could ask for a waiver to locate on that property. Mr. Heffner stated the City would have the same conditions to consider as this property.

Tim Morgan of 2157 Rangeview Court testified in opposition. He stated the proposed casino is not in character with the area and the professional offices. He stated there are 5 casinos and food services down on Grand Avenue. He stated granting the 600 foot waiver will set a precedent for this area and more licenses could try the same thing even closer to the churches. He stated there are several reasons why Billings is not attracting larger businesses and firms to the area. First, is the lack of transportation choices, and second, is the poor quality of our school system, and third, is allowing casinos and similar lower class developments in our City.

Cindy Morgan of 2157 Rangeview Court testified in opposition. She stated she agreed with everything that was already said against the casino. She stated she was opposed to granting the waiver to the 600-foot separation. She stated there are 5 great casinos already on Grand Avenue to the south and another one is not needed. She stated her doctors tell her call 6 months in advance for an appointment because they cannot recruit enough new doctors to come to Billings. She surmises this is because of the quality of our development and casinos all over the place.

Darlene Newstrom of 4538 Toyon Drive testified in opposition to the application. She stated she attends Shiloh United Methodist Church and she knows the congregation does not want this casino on this property. She stated she is certain the developer will do a good job with the  building and site but it is the use that is a problem. She stated this use preys on the vulnerable people in the community who are addicted to alcohol or gambling. She stated the community lives with the costs of this addiction every day. She stated the City should not grant the waiver or the proposed use.

Connie Wardell of 514 64th St. West stated she banks at Stockman Bank across the street and frequently goes to Wendy's and Subway in the same area. She stated the proposed use is incompatible with the character of the area. She stated she still goes to a small salon near the Lucky's Grand Casino and this salon experiences a lot of negative consequences of being near casinos and bars. She stated the business now locks its front door to keep out unwanted non-customers. She stated before they started locking the front door, people would wander over from a casino who were either drunk or broke, or both looking for a bathroom or to get high on the hand sanitizer. She stated the City snow plowing of Avenue B in the winter is terrible. She will not drive on this street when the City has had snow. She stated the City is entirely too liberal in granting waivers from the 600-foot separation distance. She was opposed to the waiver. She also criticized Planning staff for not notifying every property owner within 600 feet of this special review.

Brad Fuller of 4045 Avenue B testified in opposition. Mr. Fuller owns Fuller Family Medicine at the other end of the block on Avenue B. Mr. Fuller stated his only concern is the casino and the effect it might have on his property. He stated when Happy Homes apartments went in across the street a few years ago he started having people wonder through his parking lot, leave trash on his landscaping and damaged his holiday light display. He stated he was concerned the casino would attract a rougher crowd. He stated he was worried that someone might think of robbing his medical practice of pain killers, even though he does not have any pain killers in his offices.

Ken Boeschen of 3741 Colin Drive testified in opposition to the special review and the waiver of the 600-foot separation distance. He stated casinos take advantage of weak-minded people who are easily parted from their money. He stated casinos promote and encourage addiction to alcohol and gambling. He stated he was very much in favor of more restaurant choices in the area but no more casinos or bars. He stated the subject property is a perfect location for professional offices.

Karen Freeman of 5120 Amherst Drive, and Secretary of the West End Task Force testified in opposition to the special review on behalf of the West End Task Force. She stated the proposed waiver and the special review are not supported by the goal of the 2001 West Billings Plan: "To inspire decisions to implement the community’s shared vision for the future of West Billings enabling it to thrive on growth and change through innovative, aesthetic land use, and responsible development." She urged the commission to vote against the request.

Theresa Goodman testified in opposition. She stated she was the "villain" that sold the property to Mr. Veltkamp. She was under the mistaken impression the property would be used by Mr. Veltkamps' son who wanted to relocate to Billings. The son's business would build an office building at this location. She stated her family began building the Goodman Subdivision in 2004 but the 2 churches already existed by that time. She stated the intent was always to respect the church locations and never sell or build anything that would harm the churches. She stated the waiver of the separation distance was not in keeping with this development and the character of the area.

Rev. Tyler Amundson of 2444 Miles Avenue and pastor of the Shiloh United Methodist Church testified in opposition to the request. He stated casinos do not add a positive element to neighborhoods. He stated the church is opposed to granting the waiver to the 600-foot separation distance.

Mr. Veltkamp provided rebuttal testimony. Mr. Veltkamp stated he understood the neighbor's concerns but the use is an allowed use within the zone and qualifies for a waiver based on the City's adopted regulations. There is no visual connection between Shiloh United Methodist Church and this property. He stated every business he runs and businesses his sons operate are legitimate, clean businesses. He stated every non-residential enterprise in the City including churches, restaurants, doctors, lawyers, real estate agents, bars and casinos are all vying for clients and consumers. Every person has a choice of how to spend their time, money and resources any way they want based on our freedom of choice. He stated each and every waiver of the separation distance should stand or fail on its own merits and not on what the City Council did in some other place or at some other time. He stated a waiver for this property would not make another waiver in the same area any easier or harder. He stated he believes developing this vacant commercial corner will improve the area and will not have any detrimental effect on the surrounding uses. In response to a question from Mr. Ulvestad, Mr. Veltkamp stated he had not looked at other property to locate the beer and wine license. In response to questions from Chair Dan Wagner, Mr. Veltkamp stated if the trees and buildings were to go away on the parcels to the north he was certain they would be re-built and re-planted with new landscaping. Mr. Veltkamp stated the proposed size of the bar and casino is just right for his son's business model. He would not be increasing the area.

Commission member Mike Boyett made a motion to recommend denial of the waiver of the 600-foot separation distance to Shiloh United Methodist Church and the special review request based on its potential detrimental effects on public safety and the character of the neighborhood. The motion was seconded by Dennis Ulvestad. Chair Dan Wagner stated he would vote in favor of the motion because granting the waiver would set a bad precedent in this area. The motion was approved on a 4-0 vote. Commission member Michael Larson was absent from the meeting.

The Consistency with Adopted Plans and Policies is discussed in the Alternatives Analyzed section above.