This is a special review request to locate an all beverage liquor license with gaming within an existing multi-tenant building, Evergreen Midtown Plaza, at 1313 Grand Avenue. The parcel is approximately 4.14 acres and known as Lots 2A, 3 – 23, 24A and 25-47, Block 1 Evergreen Subdivision in a Community Commercial (CC) zone. The parcel is within 600 feet of a school, Lewis and Clark Middle School, and the adjacent playing field. The property owner is Evergreen Midtown Plaza, LLC and Bob Pulley and Rob Veltkamp are the agents. The Zoning Commission conducted a public hearing on July 6, 2010, and is forwarding a recommendation of denial on a 4-0 vote.

Before taking any action on an application for a special review use, the City Council shall first consider the findings and recommendations of the City Zoning Commission. In no case shall the City Council approve a special review use other than the one advertised. The City Council shall take one of the following actions on these Special Review requests: 1) approve the application; 2) conditionally approve the application; 3) deny the application; 4) allow withdrawal of the application; or 5) delay the application for a period not to exceed thirty (30) days. The findings and recommendations of the City Zoning Commission are contained within the Consistency with Adopted Plans section of this report.

Denial of the proposed special review use should have no fiscal impact on the city. Approval of the proposed special review use would be expected to generate additional tax revenues to the City for operation of a new business in this retail plaza.

This is a special review request to locate an existing all beverage liquor license with gaming in a vacant tenant space in the Evergreen Midtown Plaza at 1313 Grand Avenue. The current zoning is CC and lots to the north and east are zoned CC as well. Property south across Grand Avenue is zoned CC for the new Walgreen’s Pharmacy, and Public for the Lewis & Clark Middle School. The school is south of Grand Avenue along Lewis Avenue and the playing field and track is on the north end of the property adjacent to Grand Avenue. There are 4 casinos within 600 feet of this location including Dotty’s Casino at 1309 Grand Avenue, the Nickel Ante Casino at 1542 13th Street West, Jackpot Nevada Casino at 1413 13th Street West and Lucky’s Grand Casino at 1411 13th Street West. There is a state liquor store within 600 feet at 1420 Grand Avenue as well as 38 single family homes, 1 duplex, and 1 triplex apartment building. Lewis and Clark Middle School property and the playing field are also within 600 feet of the proposed location across Grand Avenue to the south.

Section 27-612 of the Unified Zoning Regulations requires a separation of at least 600 feet for any new location where the on-premise consumption of alcoholic beverages is allowed and any church, school or public park that contains a children’s playground or playfield. The applicant has asked for a waiver of the 600-foot separation to Lewis and Clark Middle School and playfield. The regulations allow the City Council to consider a request for a waiver if it finds a physical barrier separates the uses such as an arterial street with no signalized pedestrian crossing, a building or buildings entirely obstructs the view of the location and there is no direct physical access between the uses. The applicant states the proposed casino will face west and is entirely obstructed by buildings between this location and the school property. The school property can be seen from this location and vice versa. The applicant states that there is an 8-foot chain link fence surrounding the playing field and it presents a physical barrier between the two uses. There is a chain link fence around the playing field. The applicant states Grand Avenue is an arterial street. Grand Avenue is an arterial street, however there is a signalized pedestrian crossing at 13th Street West and 14th Street West adjacent to this property and so it cannot be considered a barrier between the school and playing field and the proposed location, under the zoning regulations. The Planning Division recommended denial of the requested waiver. The Zoning Commission concurred with this recommendation. 

Grand Avenue is a principal arterial street that handles approximately 15,000 vehicle trips per day at the intersection of 13th Street West. Thirteenth Street West is a collector street that handles 8,000 vehicle trips per day north of Grand Avenue and 4,500 trips per day south of Grand Avenue. Both 13th Street West and 14th Street West are signalized intersections and any additional traffic from the proposed use can be handled by these two intersections. The Building Official commented that a change of use building permit will be required to ensure the tenant space is sufficient for the location of a liquor license. This may require upgrades to tenant separation walls and fire resistive construction. A parking analysis also will be required to ensure there are adequate spaces within the existing parking lot for this use.

The City Council is concerned with the number and concentration of gaming venues within the city limits. In 2007, the City Council initiated an amendment to the zoning regulations to provide additional requirements for gambling establishments (casinos). On August 4, 2008, the City Council asked the City Attorney to seek a letter of advice from the Attorney General regarding the city’s ability to regulate the number and location of casinos through its zoning regulations. The letter of advice has not yet been issued. As of June 2010, there are 127 active gaming locations within Billings. In 2006, there were 141 active gaming locations.

On July 6, 2010, the Zoning Commission conducted a public hearing on Special Review #882. The Planning staff presented the application and recommendation of denial to the commission. The applicant and agent did not attend the hearing but were notified by first class mail of the hearing and Planning recommendation.

Three surrounding property owners testified against the special review. Arnie and Linda Knight, owners of the Taco Treat restaurant in Suite 10, and residents at 2122 Clark Avenue testified against the proposed casino. Mr. & Mrs. Knight stated they were concerned for the safety of their employees who are mostly young adults and teenagers. The restaurant closes each night at 9:30 pm. Mr. Knight stated a casino next to their business would effect their family-oriented atmosphere. Mr. Knight stated many of their customers are school age children from the neighborhood and from Lewis & Clark Middle School. Mrs. Knight stated there is no business activity at this end of the plaza after 9:30 in the evening so the neighborhood is protected from noise and traffic during the evening. A casino would change the evening quiet that currently exists. Mrs. Knight stated there are 12 other casinos or bars within the immediate area and another casino would not add anything.

Linda Zeimet of 1408 Avenue C testified against the special review. She stated her home is right across the street from this location. It would have a negative effect on her property. She stated another casino in this area would not be beneficial. She stated two of her grandchildren attended Lewis & Clark school and many students from the neighborhood cross Grand Avenue at 14th Street West. She stated many children use the playing field and track even when school is out.

Commission member Dan Wagner made a motion to recommend denial of Special Review #882 and it was seconded by member Ed Workman. Member Ed Workman stated he would vote to deny the request based on the pedestrian access across Grand Avenue, the testimony from the surrounding property owners and the Planning staff recommendation. Mr. Workman urged the property owners to also attend the City Council hearing since the final decision is made at the Council public hearing. The Zoning Commission voted 4-0 to recommend denial.

Before a recommendation of approval or conditional approval can be made, each special review request must demonstrate conformance with three primary criteria; 1) the application complies with all parts of the Unified Zoning Regulations, 2) the application is consistent with the objectives and purposes of the Unified Zoning Regulations and the 2008 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 it is within a zoning district where on-premise consumption of alcoholic beverages may be allowed by special review approval.

The application does not conform to the second and third criteria. The zoning regulations adopted by the City Council have designated several zoning districts where on premise consumption of alcoholic beverages may be allowed. The CC zone is intended to “to accommodate community retail, service and office facilities offering a greater variety than would normally be found in a neighborhood or convenience retail development. Facilities within the classification will generally serve the community, and is commensurate with the purchasing power and needs of the present and potential population within the trade area. It is intended that these business facilities be provided in business corridors or in islands (thirty (30) acres) centrally located in the trade area rather than a strip development along arterials.” This location has 4 existing casinos within 600 feet and a state liquor store. In addition, the Evergreen IGA, Walgreen’s and Albertson’s offer beer and wine for sale for off-premise consumption. The concentration of casinos and venues for on-premise consumption of alcohol is contrary to the purpose of the Community Commercial zoning of offering a greater variety of businesses in the area. The 2008 Growth Policy adopted a goal of predictable land use decisions that are consistent with the neighborhood character and new development that is sensitive to and compatible with adjacent neighborhoods. The policy also adopted a goal of more housing and business choices within each neighborhood. The proposal for a 5th casino location within a small commercial area adjacent to an established residential neighborhood to the west is not a compatible or consistent land use. The addition of another casino location in this area does not contribute to the goal of more business variety within the neighborhood. The proposed location will be fronting 14th Street West and the residential uses along that street. There are no conditions that can be devised to screen or otherwise mitigate the potential impacts of this proposed casino from the adjacent residences.