Planning staff is recommending conditional approval based on the findings of the nine review criteria (BMCC 27-1623.D).

This is a special review request to establish a bar and casino in an existing building at 1225 Mullowney Lane in a Corridor Mixed Use 2 (CMU2) zone district. The existing building was recently closed but served as a convenience store for the Conoco gas station at the intersection of Mullowney Lane and Midland Rd. The CMU2 zone district is a zone district that allows bars and casinos provided the location can meet the required separation distances to schools, parks with playgrounds or playing fields, religious institutions and residential neighborhoods. The applicant is OED, LLC (Jay Doucette, owner) and the agent is Performance Engineering. The proposed name of the new bar and casino is the "Wild Tornado".

The property was recently purchased by the owner and the property was developed in the early 1980s as a gas station and convenience store. The business was closed late last year and the new owner is in the process of renewing the Conoco gas franchise and would like to place an all beverage license at this location in the former convenience store. The all beverage license is being moved from an existing location in Billings. The City Council adopted new regulations for separation of bars and casinos from residential zone districts (350 feet) and kept the existing 600-foot separation distance to churches, parks and schools. One of the primary changes to the regulations excludes the ability to reduce, waive or vary from the required separations. Another change was made to measure those separation requirements from the exterior of the bar or casino to the property lien of the separated use. The new code separations are based on zoning for residential separations and based on use for churches, public parks with playgrounds and primary/secondary schools (K through 12). The subject property and building is not within any of the required separation distances.

The new zoning code has a variety of considerations and findings before a special review use can be considered acceptable at a particular location. The requirements are set forth in Section 27-1623.D as follows:
1. The special review use is consistent with the City’s growth policy and applicable neighborhood plans, if any;
2. The establishment, maintenance, or operation of the special review use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare;
3. The site for the proposed use is adequate in size and topography to accommodate the use while meeting the other requirements of this Zoning Code, including zone district dimensions, landscaping requirements, and parking.
4. The special review use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood;
5. The special review use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district;
6. Conditions necessary to protect the public health, safety, and general welfare can be established, including but not limited to conditions on: 7. Adequate utilities, access roads, drainage, and/or necessary facilities have been or are being provided;
8. Adequate measures have been or will be taken to provide ingress and egress to minimize traffic congestion in public streets; and
9. The special review use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may, in each instance, be modified by the city council.

Each decision criteria must be given due consideration and a finding is proposed for each one. Planning staff is including a set of recommended conditions of approval based on submitted site plan, applicant letter, and findings of the criteria. A significant change from the previous zoning code is a special review use must not be considered an "allowed" use in the zone district. The proof of compatibility now rests with the applicant instead of the Zoning Commission and City Council to prove non-compatibility.

The applicant proposes the use is compatible by stating it will use existing infrastructure and re-vitalize an existing building that has reached its useful life span. The location is at a key intersection of commercial activity and is a primary entrance to the new subdivisions developing to the south and west in the Southwest Corridor area of Billings. There was a casino location on the west side of Mullowney Lane however this location was re-developed for a new Holiday gas station in 2019. In addition, there was a casino (the Grand Casino) within the former Holiday Inn at 5500 Midland Road, now the Trailhead Inn. This Grand Casino location has been closed for over 1 year. The High Tide Casino at 5435 Midland Road is the closest similar business and is conforming to the new zoning requirements for separation distances. The applicant is not proposing many site improvements beyond the remodel and re-signing the closed convenience store. The existing signage on the gas canopy and the building will be brought into compliance with current signage regulations. The two freestanding signs for Conoco will be updated with new Conoco signs and the free standing sign on the frontage will be reduced in sign area to meet current sign regulations. There is existing and fully mature landscaping maintained on the south and east property lines that shield the Billings Hotel and Convention Center property. The subject property shares a driveway access with the business to the north - Adam & Eve an adult novelty clothing store. The City is underway on an engineering design for a full re-build of Mullowney Lane from this intersection south to the intersection with Elysian Road. Due to the uncertainty of those development plans, a rehabilitation of the street frontage will be done at the time of the street re-construction. The street re-build will include curb, gutter and pedestrian sidewalks. There are no existing streetlights on Mullowney Lane south of the intersection with Midland Rd.

PROPOSED FINDINGS:
1. The special review use is consistent with the City’s growth policy and applicable neighborhood plans, if any.
Applicant: The proposed special use does align with the City's Growth Policy providing needed service to the Mullowney Lane area. The proposed development is an infill/revitalization project which is specifically identified in the Growth Policy as desirable for the community. The proposed project will renovate an old dilapidated gas station that will comply with all City regulations for the area.
Staff: There are nine Growth Guidelines in the 2016 City of Billings Growth Policy including Essential Investments, Placemaking, Community Fabric, Strong Neighborhoods, Home Base, Mobility & Access and Prosperity. In addition, the South Billings Boulevard Urban Renewal Plan includes goals and policies related to development in this area of Billings including encouraging re-use of vacant property and support for infrastructure improvements that will encourage new investment in private property.
It is desirable to renovate an existing vacant structure and the plan for this new business will not be out-of-character for this area of Billings. The site is challenging due to its limited area and building footprint. The South Billings plan acknowledged this area as a major commercial development node that would include a variety of businesses and services. Directly west across Mullowney Lane is a new Holiday gas station and convenience store and the Billings Hotel and Convention Center (BHCC - Howard Johnson) is to the south and east of the property. The property shares a driveway with the business directly north (Adam and Eve). A casino and bar are part of the proposed use and do require a special review approval. The 2016 Growth Policy Guidelines supports the proposed use in some respects. 

Community Fabric:

• Developed landscape areas in commercial areas encourage more pedestrian activity and vibrant commercial activity.
• Cost-effective landscaping of public rights-of-way and entryways makes Billings more visually appealing to residents and visitors.

Planning staff is proposing conditions and enhancement for the street frontage landscaping and signage requirements to accommodate people who are using alternate modes of travel such as the MET Transit, bicycle or on foot. Further reconstruction of Mullowney Lane by the City in the next few years also will improve the frontage and pedestrian access in this area.

Strong Neighborhoods:

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

The city is preparing a re-construction plan for Mullowney Lane south from the Midland Rd intersection to the intersection with Elysian Rd. The frontage improvement will include new and safer pedestrian access across the front of the property. Lighting will be a key factor in providing customer and public safety on the property. The last 6 months shows about 330 requests for public safety services within 1/2 mile of the subject property. The majority of those calls were for disturbing the peace (noise - 222 calls) but there were also 35 DUIs/Drug offenses, and 64 calls involving property theft. Recommended conditions should help reduce any potential new calls for service.

Mobility and Access:

• Development oriented to transit routes will provide more transportation choices and is preferred.

The location is on two of the fixed routes for MET Transit. The routes - Westend and Southside Loop can provide customers and employees easy access to connect to the remainder of the MET Transit system. Both routes can pick up riders at the intersection of Mullowney Lane and Midland Rd. The Westend bus routes to the Stewart Park transfer center and the Southside Loop routes to the downtown transfer center.

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

The proposed business is owned by a local company with a proven record of providing local jobs and approving the special review would support an existing business in Billings.

2. The establishment, maintenance, or operation of the special review use will not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare.
Applicant: The proposed use is compatible with the surrounding zoning, which is all Heavy Commercial (CX) or Corridor Mixed Use 2 (CMU2). The proposed facility is an allowable use in the existing zoning. Commercial and industrial facilities wholly surround the proposed facility. This is located within one of the identified areas for liquor and gaming license on the map published by the city.
Staff: Service stations, bars and casinos do experience crimes mainly of opportunity. The addition of this business to this area may increase these types of crimes at this location. The site is not large and the area has activity happening at all times of the day and night, providing better natural surveillance than a more isolated location. Vehicle access will be from Mullowney Lane. The site has two driveways and both will remain even during the re-development of Mullowney Lane. The applicant does not intend to change many of the site features due to the limited area of the site. The gas pumps will remain along with the canopy in front of the former convenience store building. The conversion of the convenience store to a bar and casino will be mostly interior remodeling with some updating of the siding and building signage. Planning is recommending conditions related to lighting, signage and landscape improvements that should improve site safety and appearance and bring the property into compliance with the current regulations.

3. The site for the proposed use is adequate in size and topography to accommodate the use while meeting the other requirements of this Zoning Code, including zone district dimensions, landscaping requirements, and parking.
Applicant: The new facility fits in as a small commercial operation with the other businesses located in the vicinity. The applicant is proposing to tear out the existing vegetation and wood fence around the signage on Mullowney. That would be replaced with drought resistant shrubs on the north and south side of the sign to bracket in posts. The intent would be to match the shrubbery with that on the adjacent property. There is no room on the north or south boundary to install additional green space. In lieu of that, we’d propose to install a rectangular planter to the west side of the main door along with stand-alone planters in the center of both fueling aisles to add vegetation to the site. Planters will be manually watered by staff as there is no irrigation lines within the lot and installation of new lines would require significant demolition of concrete and asphalt which is in good condition.
Staff:The proposed site is limited. The proposed interior remodel represents a 16% investment ratio in the existing building value. Proportionate compliance applies for parking and landscaping. The limited frontage combined with the planned street improvements for pedestrian and traffic safety may be able to accommodate street trees along the front of the property, but this will be evaluated further at time of the Mullowney Lane street improvements and configuration of the street frontage. The north property line is a shared driveway with the business to the north and the east and south property lines are well buffered by the adjacent hotel and convention center business. The site has adequate parking for the proposed fueling stations and the proposed bar & casino.

4. The special review use will not be injurious to the use and enjoyment of other property in the immediate vicinity for the purposes already permitted, nor substantially diminish and impair property values within the neighborhood.
Applicant: The proposed project will meet the building and design standards present in the city. The developer has an outstanding record and reputation of maintaining and operating their facilities at a high level. Improvements in an existing building to re-occupy a vacant space will improve surrounding property values.
Staff: The location is a high-volume traffic interchange off Interstate 90 with local arterial and collector street connections to region-wide shopping areas, hotel accommodations, restaurants, bars, casinos as well as heavy commercial and industrial activity to the south. Newer neighborhoods to the south and west also use Mullowney Lane as a primary connection to the rest of the city. This type of development is not out of character for this area and should not diminish or impair property values in the area.

5. The special review use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.
Applicant: The proposed facility and use will not impede the normal improvement of the surrounding properties. The new facility fits in as a small commercial operation with the other business located at the intersection of Mullowney Lane and Midland Rd. The infill project will provide a level of certainty to surrounding properties once constructed knowing the formal use of the rundown property.
Staff: Two years ago the Red Lion Inn (formerly the Holiday Inn) at 5500 Midland Road and the adjacent convention center building were closed due to a bankruptcy filing. The subject property closed the former fueling station and convenience store about one year ago. In the same time period, the property across Mullowney Lane was demolished (Western Emporium) and re-developed as a Holiday gas station, convenience store and car wash. Planning staff believes the remodel of this building for a new bar and casino along with the re-start of the gas station will not impede the normal and orderly development in the area.

6. Conditions necessary to protect the public health, safety, and general welfare can be established.
Staff recommends the following conditions of approval based on the above findings and the applicant's stated intent to bring the property into compliance with current regulations. These conditions will be related to the listed categories above, but may include other issues specific to the use for a bar and casino.

1. This special review approval is for the remodel of the existing 1,800 square foot building on the site into a bar and casino located on Lots lB1 and 1B2 of Certificate of Survey 1191, generally located at 1225 Mullowney Lane.
2. The site improvements will be as shown on the submitted site plans and architectural drawings as prepared by Atwood Architecture and Performance Engineering and attached to these conditions of approval.
3. The building exterior renovation will include functioning wall and security lighting on all elevations of the building.
4. The two-post freestanding sign along the Mullowney Lane frontage shall be modified by removing the two lowest sign cabinets (manual reader board & ATM). This will improve the clear line of sight for drivers entering and leaving the subject property and reduce the sign area to the current maximum of 140 square feet. The sign is nonconforming for freestanding signs for setbacks from the front property line (5-foot minimum - 1-foot actual), sign height (25 feet maximum - 30 feet actual) and sign area (140 square feet maximum - 168 square feet actual).
5. The site shall be improved with the landscaping as proposed on the Performance Engineering Landscape Plan (EX 1).
6. The applicant will enclose the current or new solid waste container. The current container is located in the southeast corner of the lot adjacent to the "high-rise" Conoco sign pole. The applicant will coordinate with the Solid Waste Division on the location of the container.
7. All landscaping shall be installed and maintained free of debris and trash on a regular basis. Dead plant material will be replaced with like materials as expeditiously as possible.
8. There shall be no internally illuminated fascia on the building.
9. The applicant will submit sign permits for any sign face changes for the Conoco signs on the property and for any new signage on the building. The new signage on the building will comply with the sign standards for CMU2 zone districts.
10. The applicant will submit a Building Permit within one year of City Council conditional approval and will complete the renovations and site development within two years of the issuance of a Building Permit. Failure to submit or complete the approved project within this time frame will void the conditional approval.
11. Modification of the approved special review use is allowed with the following limitations: 10% or less expansion of the gross floor area, 10% or less increase in the number of potential building occupants, and 10% or less new parking stalls. Expansions also require conformance with all other requirements of the Zoning Regulations and other City of Billings code requirements. 
12. The cessation of the special review use for more than 6 consecutive months, shall extinguish this conditional approval and the use may not be re-established except through a new special review approval of the City Council
13. The City Council reserves the right to re-open the conditional approval of this use at this location based on one or more of the following conditions: 1) failure to respond to a notice of noncompliance with the specific conditions of approval; or 2) high levels of calls for public safety services verified by the Chief of Police. The City Council will notify the owner of its intent to re-open the Special Review at least 60 calendar days ahead of any public hearing on the matter.
14. These conditions run with the land use and are binding upon and must be adhered to by the property owner and any successors, transferees or assigns.
15. The right of building and occupancy permits are contingent upon the fulfillment of all conditions imposed by this approval.

7. Adequate utilities, access roads, drainage, and/or necessary facilities have been or are being provided.
Applicant: The proposed facility will go through a full permitting review from City of Billings Public Works for site layout and utility conformance.
Staff: Staff concurs with the applicant's statements and positive findings on utilities, access roads, drainage and necessary facilities. There are no site specific conditions that would hamper the applicant's ability to fulfill the local and state regulations for access, utilities, drainage or other necessary facilities.

8. Adequate measures have been or will be taken to provide ingress and egress to minimize traffic congestion in public streets.
Applicant: There are no special considerations for this lot - it has two means of access and these are adequate for the proposed use.
Staff: The site was developed in the early 1980s prior to the current limitation on driveway openings per lineal foot of street frontage. The city is conducting an engineering design plan for the re-construction of Mullowney Lane. It is not anticipated the number or location of the driveways will need to be moved or reduced.

9. The special review use shall, in all other respects, conform to the applicable regulations of the district in which it is located, except as such regulations may, in each instance, be modified by the city council.
Applicant: No request to modify the regulations have been made.
Staff: Planning staff has not identified any detail of the site plan or narrative of the project that would require modification of the requirements for this application. The site appears to meet all of the requirements for building height, setbacks, separations, lot coverage and yard treatments. Staff has recommended specific conditions related to landscaping, parking, lighting and signage to address issues not apparent on the site plan and to bring the property into compliance or close to compliance with current regulations.

Applicants for special review approval are now required to conduct a pre-application neighborhood meeting similar to zone change applicants. This notice was sent out to property owners within 600 feet of the subject property (~10 owners) for a virtual meeting on Tuesday, August 24, 2021. NO one attended the pre-application meeting. No comments were received by the Planning staff after the public hearing notices were mailed, the property was posted and the legal ad published as required. The applicant is moving an existing license already located within the City of Billings.

The City Zoning Commission may recommend to the City Council:

• Approval or,
• Conditional Approval; or
• Denial

The Zoning Commission recommendation shall be based on findings of fact for each criterion and shall be transmitted to the applicant or applicant's agent as well as the City Council.

Approval or disapproval of the proposed special review use should not have an impact of the Planning Division budget.