The Planning Board recommends to City Council that the preliminary plat of Fifty Four West Subdivision be conditionally approved and the Findings of Fact adopted as presented in the staff report.

On March 1, 2023, KLJ Engineering, on behalf of Michael Christensen, applied for preliminary major plat approval for Fifty Four West Subdivision. The proposed subdivision creates 66 lots for residential development. The subject property is generally located North of Rimrock Road and East of 54th Street West. The property is currently zoned N3. Per the zoning code, the property will need to be rezoned to a Planned Neighborhood Development. Additionally, in order for this land to develop in the City, annexation is required. Both an annexation and zone change are being reviewed by staff and will be considered concurrently at this meeting with this application. The land is currently vacant.

VARIANCES
No variances are requested.

PROPOSED CONDITIONS OF APPROVAL

1. To minimize the effects on local service prior to final plat approval, the applicant will coordinate with the USPS to determine what type of deliver system is preferred and to locate and provide the correct amount of space for safely delivering the mail to the residents.
2. To minimize the effect on local services, to be compliant with Planned Neighborhood Development zoning regulations, and because of the location in proximity to Cottonwood Park, the subdivider shall provide a combination of 2% (.33 acres) developed park and 9% (1.46 acres) cash-in-lieu. The dollar value shall be determined based on methods outlined in Section 23-1007 of the City of Billings Subdivision Regulations. The payment shall be made prior to final plat approval.
3. In order to protect public health and safety and provide for future park maintenance, all required parkland shall be privately owned and maintained. Prior to final plat approval, the subdivider shall submit for review and comment, documents outlining how the maintenance will occur.
4. Minor changes may be made in the SIA and final documents, as requested by the Planning, Legal or Public Works Departments to clarify the documents and bring them into the standard acceptable format.
5. The final plat shall comply with all requirements of the City of Billings Subdivision Regulations, rules, regulations, policies, and resolutions of the City of Billings, and the laws and Administrative Rules of the State of Montana.
6. In order to protect public health and safety and adhere to Crime Prevention Through Environmental Design (CPTED) principles, fences within the rear yard setback of Lots 1-7, Block 8, and Lot 9, Block 7 and side yard fences adjacent to the 30’ wide ROW for the shared used path shall be limited to 6 feet in height. The Covenants, Codes, and Restrictions (CC&Rs) filed with the final plat shall include this language. In addition, the following language shall be placed into the Subdivision Improvements Agreement under Section II. Titled Property Conditions and Information for Lot Purchasers F. rear yard fences of Lots 1-7, Block 8, and Lot 9, Block 7 and side yard fences adjacent to the 30’ wide ROW for the shared used path shall be limited to 6 feet in height. The aforementioned fences may be constructed up to the maximum height allowable by zoning, if the fence is constructed of materials that are permitted by the zoning code and allows for transparency.
7. In order to protect public health and safety and adhere to Crime Prevention Through Environmental Design (CPTED) principles and per the City of Billings Subdivision Regulations Section 23-406 A. 3. The subdivider shall install plantings within the open space area adjacent to the shared use path. The landscaping shall include at least 1 tree and 6 shrubs or ornamental grasses every 40’. The trees should be of a variety included in the City’s preferred tree planting list.

Note: The staff recommended version of condition number 6 proposed limiting fence heights to 4 feet, only allowing a 6' fence if the fence were constructed of materials that promoted transparency. After review of the Planning Boards recommendation, Staff would like to identify potential points of conflict between Condition 6 and information disclosed from the developer that may need to result in the City Council further amending Condition number 6. 

The applicant stated during the public hearing of this preliminary plat of their intent to place a 6-foot tall perimeter cinder block wall around the subdivision, in order to mirror the aesthetic of the subdivisions opposite of Rimrock Road and provide secure and private backyards for future residents. The last sentence of Condition 6, "The aforementioned fences may be constructed up to the maximum height allowable by zoning, if the fence is constructed of materials that are permitted by the zoning code and allows for transparency.", may conflict with this design and the intent of the amended Condition 6 as discussed in the public hearing, however the Planning Board did not motion for this language to be struck during the public hearing.

The applicants' agent, during the presentation said the applicant was content with the side yard fences adjacent to the 30’ wide ROW for the shared used path being limited to 4 feet in height, as further described in the stakeholder section. However, the Planning Board's motion did not reflect this intent, either. The current version of condition 6 would allow for 6' high fencing or walls along the 30’ wide ROW for the shared used path, which would conflict with the CPTED-Friendly intent of Condition 6. 

If the City Council were to consider further amendments, based on the Planning Board recommendation, to avoid these potential points of conflict, the following amendments to condition number 6 should be considered.

• Consider limiting the side yard fences to a 4' maximum height immediately adjacent to the 30' wide shared use path access for Lot 9, Block 7 and Lot 7, Block 8.
• Since the developer has indicated they intend to construct a solid type wall (block style) consider striking "The aforementioned fences may be constructed up to the maximum height allowable by zoning, if the fence is constructed of materials that are permitted by the zoning code and allows for transparency."
• Staff recommends current Condition #6 language be replaced with the following: In order to protect public health and safety and adhere to Crime Prevention Through Environmental Design (CPTED) principles; fences within the rear yard setback of Lots 1-7, Block 8, and Lot 9, Block 7 shall be limited to 6 feet in height. The side yard fences adjacent to the 30' wide shared use path access for Lot 9, Block 7 and Lot 7, Block 8 shall be limited to 4 feet in height. The Covenants, Codes, and Restrictions (CC&Rs) filed with the final plat shall include this language. In addition, the following language shall be placed into the Subdivision Improvements Agreement under Section II. Titled Property Conditions and Information for Lot Purchasers F. rear yard fences of Lots 1-7, Block 8, and Lot 9, Block 7 shall be limited to 6 feet in height.The side yard fences adjacent to the 30' wide shared use path access for Lot 9 Block 7 and Lot 7 Block 8 shall be limited to 4 feet in height. 

PROCEDURAL HISTORY
Pre-Application Meeting: August 25, 2022
Preliminary Plat application submitted to Planning Division: March 1, 2023
Departmental Review Meeting: March 16, 2023
Preliminary Plat Resubmittal: March 23, 2023
Planning Board Plat Review: April 11, 2023
Planning Board Public Hearing: April 25, 2023
Preliminary Plat to City Council: May 22, 2023
60 Working-Day Preliminary Plat Review period ends: May 24, 2023

PLAT INFORMATION
General Location: North of Rimrock Road and East of 54th Street West
Legal Description: Certificate of Survey 1834, Parcel 2B Amended, AMD 30.608 ac (98)
Owner/Subdivider: Michael Christensen
Engineer/Surveyor: KLJ Engineering
Existing Zoning: N3 - Suburban Neighborhood Residential
Existing Land Use: Vacant land
Proposed Zoning: PND - Planned Neighborhood Development
Proposed Land Use: Residential
Gross & Net Area: Gross 30.61 Acres & Net 16.21 Acres
Lot Size: Parkland Requirements: 1.78 Acres required. 0.83 Acres is provided. Of that, 0.33 is provided toward the park land dedication and the remaining 1.45 acres is to be covered via cash-in-lieu contribution. The cash contribution will go towards Cottonwood Park since the subdivision is located within the 1 mile radius of the park.

PLAT REVIEW MEETING
At the Planning Board Plat Review meeting on April 11, staff gave a brief overview of the subdivision and was available for questions from the Board. President Cook called for questions and discussion from members of the Board. Board member John Staley requested clarification regarding the CPTED requirements as proposed in conditions 6-8. Planning and Community Services Director Wyeth Friday responded, explaining the City Council's initiative to incorporate CPTED principles into ongoing planning projects. Board member David Nordel raised additional concerns regarding the CPTED conditions and how they may seem counterproductive to the intended goals of the CPTED principles. Board member Roger Gravgaard asked for clarification on what lots were effected by the proposed fence height restrictions. Staff responded and further explained how CPTED applied to those lots. Board member Gravgaard suggested bringing additional city staff to explain CPTED and how it applies to the City of Billings, with Director Friday responding in the affirmative.

Board member Staley segued into a concern regarding the conditions of approval referring to the parks and the cash-in-lieu contribution. Staff responded by explaining the concerns of the Parks department and the no programmable space proposed by the developer and the storm water facilities planned for the park areas. Director Friday explained further, detailing the possible uses of the cash in lieu contribution and how it relates to the nearby Cottonwood Park. Board member Woody Woods had questions regarding the possible maintenance of the private open space and who would actually perform it. Staff responded by affirming the condition that the private parkland will be privately maintained. Board member Woods also raised concerns regarding the proposed stormwater retention area and if it would be fenced. Travis Copper, the project engineer, responded to the question and stated they could look at fencing options but the stormwater area was intended to be very shallow with gradual slopes. Mr. Copper gave additional context regarding their proposed park and stormwater retention designs. Board member Woods asks staff to clarify the subdivision process and how the associated annexation and zone change are incorporated, with staff affirming the applicant is following all the procedures as necessary. The Applicant, Michael Christensen, rose to speak and provided his vision and mission statements for the project. Mr. Christensen went on to give his rationale on the park distribution within the subdivision and how the proposed private parkland would reflect a more marketable subdivision with grass, benches and other improvements. 

There were no further questions or discussion on the plat.

PUBLIC HEARING MEETING
Staff gave a brief presentation to the Planning Board at a public hearing for this subdivision on April 25, 2023.

President Cook called for questions and discussion from the members of the Board. Board member Woods asked about Condition of Approval #8 which was no longer being recommended by staff, and Planner Kelly and Division Manager Plecker provided an explanation. Condition #8 initially read as "In order to minimize the impacts on local services and protect public health and safety, the 30’ wide private open space lots on the perimeter of the development shall be changed to easements as opposed to standalone lots. The Final Plat shall depict these areas as being part of individual lots and depict the easement. The easement along Lot 7, Block 8 and Lot 9, Block 7 shall include the required landscaping/planting strip as referenced in Condition #7." After additional consideration, staff found that treating these buffer parcels as easements would, in the long term, produce a net detriment on the safety and maintenance of the areas effected. An easement in the previously described area would place the burden of safety and landscaping maintenance on the individual property owners, which may lead to inconsistent enforcement in the areas described in condition 8. This would ultimately not address the CPTED issue as intended, making the condition superfluous.
In response to a question by Board member Staley, staff said Cottonwood Park is located across Rimrock Road and 54th Street West, south of this parcel. 

Public Hearing
Steve Grabel with KLJ Engineering represented the applicant, Michael Christensen.  Mr. Grabel spoke to clarify Condition of Approval #2 requiring the developer to provide a combination of 2% (.33 acres) developed park and 9% (1.46 acres) cash-in-lieu and he also addressed the question of fencing in the private park area.  He said that question was asked during the last Planning Board meeting whether fencing would be provided along the Cove Ditch and the detention area. Mr. Grabel stated that the subdivider agrees to install a 4-foot tall fence adjacent to the proposed private park along the north side of the Cove Ditch.  The detention pond in the parkland will be designed and constructed to comply with all City of Billings storm water regulations.  Additionally, Mr. Grabel said consideration will be given to flattening the embankment slopes. He continued regarding Condition of Approval #6: “…Design (CPTED) principles; fences within the rear yard setback of Lots 1-7, Block 8, and Lot 9, Block 7 and side yard fences adjacent to the 30' wide ROW for the shared used path shall be limited to 4 feet in height...”  The developer agrees with this condition with the exception of the back lot lines of the lots located along Rimrock Road.  The developer is requesting a 6-ft fence height which he said would be in concurrence with CPTED guidelines for natural surveillance between homes and neighborhood streets, and meeting the criterion for secure backyards.  In addition, this would provide noise attenuation and give the landowners the feel of a more secure backyard. Mr. Grabel said that the criterion for a 4-ft fence does not apply in this instance as opposite this subdivision is a 6-ft fence following along the south side of Rimrock Road. He said the applicant is asking that the requirement either be removed or changed from a 4-foot to a 6-foot fence height. Other than that, the applicant concurs with the stipulations and the Conditions of Approval. 

President Cook asked the Board if they have questions for Mr. Grabel. Board member Gravgaard asked if the 6-ft fencing would apply to the walkway between Lot 7 and Lot 9.  Mr. Christensen, the applicant/developer, instead answered that he is open to suggestions for the pathway corridor to have lower fencing, but he said having the 6-ft fence would create privacy on the backyard of the lots.  Board member Ronquillo asked about the materials used for fencing. Mr. Christensen said it would be a wall and he is considering using cinder block, very similar to the wall located on the opposite site of the road. Board member Woods asked about fencing along Cove Ditch to provide a separation for children who tend to wander. Mr. Christensen said that he plans to install a fence on the north side of the Cove Ditch on the 30-ft easement line. 

President Cook opened the public hearing and asked if there is anyone present wishing to speak in favor or against the 54 West Subdivision. There was no public comment. President Cook closed the public hearing and called for a motion from the Board.

Motion
Board member Ronquillo made a motion and Board member Nordel seconded the motion that the Planning Board recommend to City Council that the preliminary plat of Fifty Four West Subdivision be conditionally approved and the Findings of Fact adopted as presented in the staff report, and amend Condition of Approval #6 to require a 6-ft fence instead of the 4-foot fence.

President Cook called for discussion on the motion.  Board member Stephenson asked staff for background information on the CPTED Conditions of Approval. Division Manager Plecker said this started with a City Council initiative that was passed last year (See Findings of Fact Section 5. Effect on the public health, safety and welfare). This initiative is making it a priority for staff to consider insertion and consideration of CPTED principles and language for recommendations for subdivisions, especially for public walking paths to avoid a tunnel effect. She noted the Boards’ discussion on the need to balance the safety of the residents and safety of the public using infrastructure.  Board member Stephenson pointed out that in this case, the walking path is adjacent to Rimrock Road and fronts the rear yards. Division Manager Plecker said a CPTED training for staff is scheduled for staff in May and possible CPTED integration into City policies and regulations can be discussed more holistically during a future Planning Board meeting. Planner Hunter Kelly provided clarification on Condition of Approval #6 and said under current zoning code, the maximum rear yard fencing height is 6 feet and the proposed amendment would strike Condition of Approval #6 as a whole. Division Manager Plecker clarified and said instead of striking the condition, updated Findings of Fact would be acceptable. Board member Woods commented it would be beneficial if Council would make Boards and Commissions aware of these types of initiatives so they can make informed decisions. He is in favor of a 6-ft fence along the lots for a number of reasons, especially along Rimrock Road, and it meets present zoning code. 

Board member Staley asked why the applicant’s proposed internal parkland is not sufficient and the City is asking the applicant to pay for a Cottonwood Park instead, which requires children walking across a very busy street to get there. Ms. Plecker said there is a City resolution stating if parks are located within 1 mile of Cottonwood Park, there is a cash-in lieu dedication requirement. Mike Pigg, the City of Billings Parks Superintendent, said the parkland dedication is a state statute. Ms. Plecker said the parkland requirements in the subdivision regulations are percentage based on the size of lots. There is separate City resolution stating that any time parks are located nearby, contributions would have to be made to Cottonwood Park.  Mr. Pigg provided clarification on the City policy and stated this parcel is within a 1 mile radius of a public park and the cash-in-lieu funds for this subdivision will be required to go to fund Cottonwood Park. He pointed out there is a stop light with a crosswalk on Rimrock Road, and a paved path down 54th Street West to Cottonwood Park, which will be designed to be a community park for this area.  

Board member Staley said there is no sidewalk on the south side of Rimrock Road. He asked if a variance could be given to allow use of the available ground within the subdivision for parkland. Division Manager Plecker said parkland serving as storm water retention or detention does not count towards the required percentage for contribution of parkland; and the City can express its preference for cash-in lieu of parkland.  Board member Staley voiced concern that the only option for children living in this subdivision wanting to access the park is to cross a very busy street and put themselves in harm’s way.  He said he is having difficulty recommending this as the applicant is having to pay for a park he isn’t going to use and it is unsafe for children to access the public parkland.  Division Manager Plecker clarified and said there is an existing avenue for pedestrians when crossing 54th Street West and Rimrock. Meaning there are lighted, signaled cross walks.  After exiting the crosswalk, there is a shared use path that will take pedestrians down to Cottonwood Park. Per request of Board member Gravgaard, Division Manager Plecker clarified the location of the shared use path and the way of using existing infrastructure to stay on crosswalks and sidewalks in order to access Cottonwood Park.

President Cook called for a vote on the motion. The motion carried with a unanimous voice vote.

In accordance with state law, the City Council has 60 working days to act upon this major preliminary plat. The 60 working day review period for the proposed plat ends May 24, 2023, State and City subdivision regulations also require that preliminary plat be reviewed using specific criteria, as stated within this report. The City may not unreasonably restrict an owner's ability to develop land if the subdivider provides evidence that any identified adverse effects can be mitigated. Within the 60 working day review period, the City Council is required to:
1. Approve;
2. Conditionally Approve; or
3. Deny the Preliminary Plat

The preliminary plat of this subdivision will have no financial impact on the Planning Division.
 

One of the purposes of the City's subdivision review process is to identify potential negative effects of property being subdivided. Negative effects that are identified become the subdivider's responsibility to mitigate. Various City departments, private service/utility providers and the affected school district/s, have reviewed this application and provided input on effects and mitigation.  The Findings of Fact, which are presented as an attachment, discuss potential negative impacts of the subdivision and conditions of approval are recommended as measures to further mitigate any impacts. In this case, there were found to be some impacts from this proposed subdivision.