The Planning staff is recommending conditional approval and adoption of the findings of the variance criteria for this application.

This is a variance from Section 27-406 requiring front lot line coverage of at least 50% to allow 30% front lot line coverage on a vacant lot generally located at 3032 King Ave W in a Corridor Mixed Use 2 (CMU2) zone district. The lot is approximately 63,461 square feet in area and legally described as Lot 3B of Studer Acreage Tracts amended. The variance is intended to allow the development of a new Panda Express with dine-in, carry-out and drive-thru services with associated parking and landscaping.

The Corridor Mixed Use 2 (CMU2) zone district is a new zoning for the city that requires buildings to be closer to the street with less parking on the front and more street frontage landscaping. The City Council adopted the new zoning districts and regulations in January 2021. The zone districts now require a minimum percentage of the front build-to area to be covered by a building facade. This is the required front lot-line coverage. The purpose of the build-to area and the front lot-line coverage is to ensure the street frontage is used for maximum potential for commercial businesses. Parking is restricted to side yards, rear yards or internal parking areas behind buildings that frame the street. Most of the buildings on the King Ave West corridor are not built in this way. Most older commercial structures along this corridor have at least 75% of the parking in front of building and the "front" of the businesses are setback 60 to 120 feet or more from the street. This creates the right elements for a high-speed traffic corridor with few if any opportunities for other modes of travel to these businesses. Traffic conflicts and crashes are high along this commercial corridor. 

The new regulations also allow variances from any numerical limitation or requirement in the code and this includes the front lot line coverage requirement. There are some small variations allowed through and administrative process, however larger deviations such as the proposed reduction, still require a review and approval by the Board of Adjustment. The same basic criteria for variances have carried through from the previous zoning regulations since these criteria are outlined in state law. These criteria include a finding of physical hardship with the lot that prevents compliance with the zoning and that other properties in the district have received similar variance or have developed without the granting of a variance to the code requirement.

Planning staff has reviewed this application and find the proposed variance is intended to accommodate a hardship with this property that does not apply to other lots within the district. The lot is burdened by an irrevocable 30-foot wide access easement for the benefit of all the tracts in the amended subdivision. The access easement allows traffic from King Ave West to access the hotel to the south (3040 King Ave W), and the restaurant to the west (3042 King Ave W). The proposed site design and layout is not substantially different from adjoining developments and will fit in with the nearby developments. In order to enhance the site and mitigate some potential impacts from project, staff is proposing several conditions of approval.

The Board of Adjustment may

• Approve the findings of the review criteria as proposed by Planning staff and conditionally approve the variance application; or,
• Change the findings of the review criteria as proposed by Planning staff and deny the variance application; or
• Allow the application to be withdrawn at the request of the applicant; or
• Delay action on the variance application to a future Board meeting.

Approval or denial of the proposed variance will have no effect on the Planning Division budget.

Before granting the requested variance, the Board of Adjustment shall consider the findings of the review criteria (Sec 27-1627.D)

1. That special conditions and circumstances exist which are peculiar to the land, the lot or something inherent in the land which causes the hardship, and which are not applicable to other lands in the same district.
There is a special circumstance with this parcel that does not apply to other parcels in the area. The lot has an irrevocable access easement that applies to the western 30 feet of the 164-foot wide lot. In addition, the lot is exceptionally narrow compared to its depth - 164 feet wide and 387 feet deep or a ratio of 2.35. A width to depth ratio of more than 1.6 makes site design more difficult even for smaller building footprints such a fast-casual or drive-thru restaurant. A typical drive-thru designs requires customers to "circle" the building. The proposed site design illustrates the path of travel for drive-thru customer. Traffic enters through the existing 30-foot wide access at King Ave W, traveling down this access road for about 270 feet, then turning east into the order queuing lane. Customers then travel north to the order board and delivery window. The drive-thru exits across the front of the building and back to the access point for King Ave West. The access to King Ave W is restricted to a right-in/right-out configuration. There is a raised median separating the east-bound and west-bound lanes of King Ave W. 

2. That a literal interpretation of the provisions of this Zoning Code would deprive the applicant of rights commonly enjoyed by other tracts in the same district.
This is the first variance requested from the new front lot line coverage requirement for the mixed use zone district. The previous zoning required minimum setbacks but did not impose maximum setbacks or require a certain percentage of the front line to be covered by a structure or structures. There is no applicable or similar zoning variance history to the application. Planning staff did find there were several zoning variances granted in the area to accommodate larger signs or more signs on commercial buildings. One zoning variance was granted to reduce the required arterial setback on S 32nd Street from 70 feet to 63.5 feet to allow an addition to a home. The current arterial setback is 50 feet for all zones. The previous 80-foot and 70-foot arterial setbacks were not included in the zoning update in 2021.

The development of the King Ave W corridor in the late 1980s and through the 1990s included large setbacks for buildings most placed at the back of massive parking lots. The CMU zone districts intends to make this style of commercial development obsolete in Billings. Even the new Heavy Commercial (CX) zone requires placement of parking to the side or rear of a building. The BOA did consider and granted a zoning variance from this requirement for the new Costco warehouse on Zoo Drive. This variance, Variance 1343, was granted in part to accommodate an immovable irrigation canal, and to allow the Costco store design to fit across seven lots with multiple street frontages. Another variance in 2021 was granted from the maximum build-to setback for a property on Blue Creek Road. This location had challenges with the floodplain of Blue Creek across the entire street front of the property. 

3. That granting the variance requested will not confer on the applicant any special privilege that is denied by this Zoning Code to other land in the same district.
The zoning history in the area shows several granted variances from sign code and one from an arterial setback, Two previous commercial zone variance have been granted after the adoption of the 2021 zoning code. Granting this variance will not confer on this applicant any special privilege.

4. That the granting of the variance will be in harmony with the general purpose and intent of this Zoning Code and with the growth policies.
The proposed site plan will be similar to several others along the King Ave W corridor but will meet the build-to requirements for the CMU2 zone.

5. In granting any variance, the BOA may prescribe appropriate conditions and safeguards in conformity with this Zoning Code. Violation of such conditions and safeguards, when made a part of the terms upon which the variance is granted, shall be deemed a violation of this Zoning Code.
Planning Staff is recommending the following conditions of approval:
1. The variance is limited to Lot 3B of Studer Acreage Tracts amended generally located at 3032 King Ave W.
2. The variance is from Section 27-406 requiring a minimum front lot line coverage of 50% to allow a minimum front lot line coverage of 30%. The front lot coverage is defined as the length of the street front building facade placed within the required build-to range along King Ave West. The building facade includes area intended to be occupied for seating that may not be totally enclosed - such as a covered patio.
3. The applicant or developer will comply with all other requirements for buildings and siting in the CMU2 zone district. The site will be developed in substantial conformance with the submitted site plan.
4. All outdoor lighting, with the exception of signs, shall have full cutoff shields so no part of the fixture or lens projects below the cutoff shield. Light pole standards must be 15 feet in height or less. Height includes the fixture, the base and the supporting pole.
5. No fascia on the building or canopy may be internally illuminated.
6. There shall be no construction activity prior to 7 am or after 8 pm daily.
7. The applicant/developer shall apply for a building permit within 12 months of Board approval and complete the development within 3 years of Board approval. Completion includes all buildings, landscaping, parking and other site structures and amenities.
8. Failure to begin or complete the project according to the time periods within this approval will void the variance.
9. These conditions of variance approval shall run with the land described in this authorization and shall apply to all current and subsequent owners, operators, managers, lease-holders, heirs and assigns.

6. The BOA shall prescribe a time limit within which the action for which the variance is required shall be begun or completed, or both.
Failure to begin or complete such action within the time limit set shall void the variance.
Staff is recommending a 1-year time period to apply for a building permit and 3 years to complete the development.

7. Under no circumstances shall the BOA grant a variance to allow a use not permissible under the terms of this chapter in the district involved. A variance shall not be a grant of special privilege inconsistent with limitations placed upon other property in the district.
The proposed use of the building is an allowed use in the CMU2 zone district.