The Alberta Bair Theater (ABT) submitted an encroachment permit to add a plaza/landscaping area on the north side of the theater along 3rd Ave N.  City staff denied the permit for several reasons which are detailed in the attached letter.  Generally, when staff reviews an encroachment, it is to determine if the private use of the right of way conflicts with the public use of the right of way.  If the encroachment does not impede the public use and is deemed an appropriate fixture in the right of way, the encroachment will be approved.  In this case, the public is using the right of way because the area in question is a parking lane and a driving lane.  If the encroachment is granted, the traffic lane will need to skew through the intersection and for approximately one block and there will be a loss of several parking spaces along that frontage. 

The other reason staff did not approve the encroachment is because a plan for the Alberta Bair Theater (ABT) site was presented to City Council when the right of way was vacated in 2016.  Given a portion of the right of way has already been granted to the ABT for their use, staff was hesitant to approve the use of additional right of way.  The right of way is intended and necessary for transportation, parking, utilities and other public uses and staff is always concerned about reducing that capacity.  It becomes more difficult to serve the public if the city is vacating right of way and encumbering the remaining right of way for private use.
 
ABT has submitted a request for an appeal so the Council is being asked to review the encroachment and determine if approval of the encroachment is acceptable.

The City Council must hold a public hearing and then may:

• Approve the encroachment permit for the ABT, or;
• Disapprove the encroachment permit for the ABT. If the permit is not approved, the design for the site will need to conform to the available land.

The administrative cost for the permit is covered by the permit fee.  If the encroachment permit is approved, the annual cost is $1/sq. ft. for a total annual cost of $320.  Because the City of Billings is the actual property owner, the fee would be assessed to the City. 

Staff recommends that the City Council conduct a public hearing and that the encroachment permit be denied.