July 6, 2011 - City of Billings Home

CITY BOARD OF ADJUSTMENT
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TOTAL NUMBER OF APPLICATIONS
2011
Variance
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1
4
4
5
3
3
12/07/11
1
TOTAL
1
11/02/11
1
12/07/11
1
10/05/11
1
11/02/11
Boardmember
Vice Chairman
Boardmember
Boardmember
Boardmember
Boardmember
09/07/11
Paul Cox
Daniel Eggen
Neil Kiner
Barbara Walborn
Vacant
Vacant
10/05/11
1
08/03/11
1
09/07/11
07/06/11
1
08/03/11
06/01/11
1
07/06/11
05/04/11
1
06/01/11
04/06/11
1
05/04/11
03/02/11
1
04/06/11
02/02/11
Chairman
03/03/11
Jeff Bollman
02/02/11
Title
01/06/11
Name
01/06/11
MINUTES: July 6, 2011
Corrected and approved by a motion on September 7, 2011
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Chairman Bollman called the meeting to order at 6:00 p.m. The City Board of Adjustment met
in the City Council Chambers.
Chairman Bollman asked Zoning Coordinator Nicole Cromwell to introduce the City Board of
Adjustment members and Planning Department staff. Attending Staff members are Candi
Beaudry, Director, Planning and Community Services Department; Nicole Cromwell, Zoning
Coordinator; and Tammy Deines, Planning Clerk.
Public Comment:
Chairman Bollman opened the public comment period and asked if there was anyone wishing to
speak during the public comment portion of the meeting. There was none. Chairman Bollman
closed the public comment period at 6:05 p.m.
Approval of minutes: June 1, 2011
Chairman Bollman called for approval of the June 1, 2011 minutes. The following corrections
were requested and noted:
Page 3 of 9: Paragraph 2: insert, “He stated the original sign application approval…”Tony
Thelen testimony, delete 32nd Street West and insert Shiloh Road.
Page 6 of 9: Correct typographical error to read “City Variance #1097 is denied, 2-2.
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED SEPTEMBER 7, 2011
July 6, 2011
Page 1 of 44
Motion
A motion was made by Daniel Eggen and seconded by Neil Kiner to approve the June 1,
2011 minutes as corrected.
Motion carried unanimously, 5-0.
Disclosure of Conflict of Interest
Barbara Walborn announced a disclosure of conflict of interest on City Variance #1100 as she
received a call from an attorney she knows concerning this item. Ms. Walborn stated they did
not discuss his position or the issues.
Jeff Bollman stated he sent an e-mail to the Planning Division with a scanned copy of the July
1, 2011 cover letter and Appellants’ response that was received via US mail by the members of
the Board of Adjustment. He noted he had a similar call with procedural questions from John
Brewer, Councilperson Angela Cimmino, and a representative of Q2 News regarding the length
of the meeting.
Disclosure of Outside Communication
Nicole Cromwell explained there are times applicants communicate directly with Board
members and this should be communicated to the Board members in a public forum. Copies of
the following communications were submitted to the Board:
• City Variance #1102: A letter of communication to Mr. Barthuly, Better Billings
Foundation from Farhad Madani, Consultant, Aquatic Safety Experts LLC
• City Variance #1102: A letter of communication dated June 27, 2011 to Mr. Chuck
Barthuly, Better Billings Foundation from Richard C Scott AIA, Principal Architect
• City Variance #1102: A letter of communication dated July 1, 2011 to the City Board of
Adjustment from Citizen Larry Seekins, 380 Camel Place, Billings, Montana
• City Variance #1102: July 6, 2011 Appellants’ response to the Staff interpretation
• City Variance #1102: July 6, 2011 Appeal to the City of Billings Board of Adjustment by
the Sahara Park Neighborhood Network
• City Variance #1102: E-mail from Alex Tommerup
PUBLIC HEARINGS:
Chairman Bollman asked Ms. Cromwell to read the determinations for granting a variance as
well as review the rules for the procedure by which the public hearings will be conducted.
Ms. Cromwell reviewed the procedures by which the meeting is conducted and the
determinations for granting a variance. Ms. Cromwell explained the voting process for this
meeting as there are two vacancies on the Board of Adjustment. She stated opportunities will be
given to the applicants if they wish to delay their application until a full Board is available. The
next meeting is August 3, 2011. Chairman Bollman explained the Board of Adjustment’s
decision is a final decision and not a recommendation; further appeals would need to be made to
the District Court. Upon request of Neil Kiner for clarification, Nicole Cromwell referred to the
Code and stated four votes are needed to reverse the decision of the Planning Director.
Public Hearings:
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July 6, 2011
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At 6:15 p.m., Chairman Bollman stated the public hearing will be opened and this Board will
allow public comment this evening. Ms. Cromwell read the legal description and gave the Staff
presentation which reviewed the request and recommendation below.
Item #1-City Variance #1100 – 129 & 131 Avenue B – A variance from 27-308 requiring a minimum
lot area of 9,600 square feet for a duplex (two-family dwelling) to allow a minimum lot area of 7,000
square feet for an existing duplex dwelling in a Residential 7,000 (R-70) zone on a property described as
Lot 14 & 15, Block 22, North Elevation Subdivision, 3rd Filing, Tax ID A11917; Garth and Gale Robson,
owners.
Nicole Cromwell opened this agenda item with a PowerPoint presentation.
REQUEST
The applicant is requesting a variance from Section 27-308 requiring a minimum lot area of
9,600 square feet for an existing duplex to allow a lot area of 7,000 square feet in a Residential
7,000
(R-70) zone on Lots 14 and 15, Block 22, North Elevation Subdivision 3rd Filing. Garth and Gal
Robson are the owners. Staff is recommending conditional approval with the following
conditions for the variance request:
1. The variance is to decrease the minimum lot size from 9,600 square feet to 7,000 square
feet for an existing duplex dwelling. No other variance is intended or implied with this
approval.
2. The variance is limited to Lots 14 and 15, Block 22, North Elevation Subdivision 3rd
Filing generally located at 129 and 131 Avenue B.
3. Any future rebuilds or remodel of the duplex dwelling will need to be done in
compliance with the City’s adopted building code and site development code. With the
exception of the minimum lot size required all other zoning code requirements will apply.
4. 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.
Discussion
Chairman Bollman called for questions and discussion by the members of the Board.
Daniel Eggen asked how this duplex is being taxed. Nicole Cromwell responded it is taxed as a
duplex. She gave further explanation on the definition of a dwelling unit.
Public Hearing
At 6:21 p.m., Chairman Bollman opened the public hearing and called for proponents of City
Variance #1100. There was none.
At 6:22 p.m. Chairman Bollman asked if there was anyone present wishing to speak against City
Variance #1100. There was none. Chairman Bollman closed the public hearing and called for a
motion from the Board.
Motion
A motion was made by Paul Cox and seconded by Barbara Walborn to conditionally
approve City Variance #1100-129 & 131 Avenue B as presented by staff.
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Discussion
Chairman Bollman called for discussion on the motion. There was none. Chairman Bollman
called for a vote on the motion.
Boardmember
Jeff Bollman
Paul Cox
Daniel Eggen
Barbara Walborn
Neil Kiner
Vacant
Vacant
Yes
1
1
1
1
1
-
No
Abstain
Not Present
-
-
-
City Variance #1100 for 129 & 131 Avenue B –is conditionally approved, 5-0.
Chairman Bollman asked Ms. Cromwell for presentation of agenda item #2-City Variance 1101964 Pegasis Place.
Ms. Cromwell read the legal description and gave the Staff presentation which reviewed the
request and recommendation below.
Item #2: City Variance #1101 – 964 Pegasis Place - A variance from the requirements of
Galaxy Planned Development zone requiring a maximum lot coverage of 30% to allow a
maximum lot coverage of 34% for the construction of a 360 square foot addition to an existing
garage in an underlying zoning district of Residential 9,600 (R-96) on Lot 10, Block 4, Galaxy
Subdivision a 9,573 square foot parcel of land. Tax ID: A24523, William and Sang Soon Almer,
owners and William Justice, agent.
REQUEST
The applicant is requesting a variance from the requirements of Galaxy Planned Development
zone requiring a maximum lot coverage of 30% to allow a maximum lot coverage of 34% for the
construction of a 360 square foot addition to an existing garage in an underlying zoning district
of Residential 9,600 (R-96). William and Sang Soon Almer are the owners and William Justice,
A-1 American Made Home Improvements is the agent. Staff is recommending denial of the
proposed variance.
Staff Presentation
Planner Nicole Cromwell opened with a PowerPoint presentation of the Staff report for this
request. She stated Planning staff reviewed the subdivision and found 6 lots smaller than 9,600
square feet in Block 4 of Galaxy Subdivision and 25 lots in the remainder of Galaxy Subdivision.
Those lots range in size from 8,000 square feet to 9,500 square feet. Planning Staff reviewed the
zoning history of the subdivision and surrounding neighborhood for similarly situated properties.
There are several properties that have been granted or denied variance for setbacks in the area.
There are no lot coverage variances in the area. Planning Staff reviewed the smaller lots in
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED SEPTEMBER 7, 2011
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Galaxy Subdivision for conformance with the lot coverage maximum. Planning Staff did not find
any of the smaller lots to be over lot coverage.
RECOMENDATION
Planning staff has reviewed this application and is forwarding a recommendation of denial based
on the determinations for review as provided within this report. Staff did not find a hardship with
the lot and was not different from the other lots within the area. Variances in the area have been
granted for setbacks but none have been granted to exceed the lot coverage maximum. Similar
lots in the neighborhood have not exceeded the lot coverage. Granting this variance would be
conveying a special privilege on this owner not been afforded to other similarly situated parcels
in the neighborhood.
Discussion
Chairman Bollman called for questions and discussion from the members of the Board.
Daniel Eggen asked about the location of the utilities. Nicole Cromwell said there may be utility
easements along the linear park but typically they come in from the street. Jeff Bollman asked if
there is a minimum lot size requirement in the Galaxy Subdivision Planned Unit Development
(PUD). Nicole Cromwell referred to the PUD agreement. She noted they were approved as a
zone change and filed with the Covenants and Restrictions. She pointed out there is no
minimum lot area described. Neil Kiner asked about the access easements to the linear park are
not indicated as parkland. Nicole Cromwell said they are owned by the Parks Department. She
said staff advised the applicant to approach the Parks Department to see if they were interested in
selling this ten-foot wide parcel but they were not interested in selling. Mr. Justice interjected
from the audience to state he does not feel this is quite correct. Nicole Cromwell said the
applicant may testify to this.
Public Hearing
At 6:15 p.m., Chairman Bollman opened the public hearing and called for the applicant’s
presentation or for comments on City Variance #1101-964 Pegasis Place.
Applicant
William Justice, 964 Pegasis Place, Billings, Montana
Mr. Justice apologized for his interruption and stated he is representing owner applicants Bill
Almer and his wife. He said this project conforms to all of the codes and setbacks. Regarding the
previous discussion on the ten-foot strip of land, he said the Planning Department suggested the
applicant consider discussing purchase of this strip of land with the Parks Department or any of
the adjacent property owners. He said they spoke with the Parks Department who agreed but the
Supervisor said “no”. He pointed out the ten feet was taken off of the lot. He said their proposal
to the Parks Department was to give back the lot area for the sidewalk and maintain the sidewalk,
which would be more than twice the square footage than what they want for the garage addition.
He said initially there was confusion as it was thought the request was for a larger rear setback.
He said there are properties on Neptune with 50% lot coverage. Mr. Justice said there are
several hardships. He explained the applicant has a teenage daughter who needs emergency
egress out of her bedroom which would be provided with the additional garage area. He
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED SEPTEMBER 7, 2011
July 6, 2011
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commented the applicant has had several difficulties in the neighborhood and needs additional
parking for their children’s vehicles. He stated he feels this is a reasonable request.
William Almer, 964 Pegasis Place, Billings, Montana
Mr. Almer said safe evacuation of the home is a primary focus along with additional parking for
another vehicle as there isn’t ample parking available in the cul de sac. He said they have four
teenagers; two with driver’s licenses. He said the neighbors should not have to put up with their
cars on the street. He pointed out the addition will give a small area for a workout room for their
children. Mr. Almer stated they take pride in the aesthetics of their home. He noted the lot is
smaller than others on the streets and there is no other way to accommodate. He said they
addressed the Parks Department regarding the easement but it was not feasible.
Discussion
Jeff Bollman called for discussion and asked if the proposed addition will have a lower roof line.
Daniel Eggen asked if the neighbors have been sampled regarding this request. Mr. Almer said
he spoke with one neighbor who did not have any problem with this request. He said they do not
feel parking the vehicles is safe on the street and there is no other way to achieve this. Daniel
Eggen commented on a condition of approval for completion of the project. Mr. Almer said the
plans were presented in April 2011, and would have completed the project in four to six weeks.
He said the project would have been done by now if the lot would have been large enough.
Chairman Bollman asked for anyone wishing to speak in favor or against City Variance #1101964 Pegasis Place.
Tim Crowley, 631 Aries Avenue, Billings, Montana
Mr. Crowley said he and Steven Luther have a presentation on why the variance should be
disapproved. He noted the letter submitted to staff in the application and some discrepancies,
including an inaccuracy in the lot sizes denoted; the pathway to the adjoining lot seems to be
taken from Mr. Almer’s lot and the easement has always been there; the garage improvement is
not needed as the applicant has one of the largest garages in the cul de sac and has adequate
space; the appearance of home looks “chopped off”; the proposal is at an angle and no other
garage at an angle and would be an “eyesore”. He stated he is representing thirteen neighbors
and noted the utilities are located in the rear of the properties.
Steven Luther, 948 Pegasis Place, Billings, Montana
Mr. Luther pointed out the storage shed and asked if it currently exceed the allowable lot
coverage at 30.6%. He said the property pins are two to three feet behind the sidewalk and he
estimates this would require a front setback variance as well. He pointed out the five-foot side
setback may also be violated. He said the addition will be lower than the existing structure and
will not be in character with the rest of the homes in the neighborhood. He stated he doesn’t
believe there is a hardship and said this is the third addition to this home.
Jeff Hinkins, 608 Aries Avenue, Billings, Montana
Mr. Hinkins stated he is grateful the easement was not sold as it would remove the easement to
the park area. Mr. Hinkins said his lot is smaller but he believes the 30% coverage requirement is
reasonable as it provides consistency. He reaffirmed the staff recommendation for denial of this
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED SEPTEMBER 7, 2011
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request. Boardmember Paul Cox asked who services the walkway and Nicole Cromwell replied
she thinks is probably owned by the owners.
Rebuttal
William Justice, 964 Pegasis Place, Billings, Montana
Mr. Justice said the Almers take care of the sidewalk area to the “nonexistent park”. He said
there are no plans for a park in the future. He stated they offered to place a sidewalk in the area
and nothing will change. He pointed out the proposal for a gabled roof; the structure is five feet
from the fence line and property line; and will adhere to the front setback. He said the power is
in the rear and the water and sewer is in the front of the property. He commented people in the
community have not accepted the Almers who wish to remain in their domain. He said the
neighbors on both sides have restraining orders and may be here due to dislike or because they
are Korean. Jeff Bollman asked if the fence encloses the easement. Mr. Justice said the fence
sets in on their property and they mow the outside strip. Barbara Walborn asked if the property
pins have been marked. William Justice pointed out the point of measurement on the aerial
photo.
Chairman Bollman closed the public hearing at 7:01 p.m. and called for a motion.
Motion
Daniel Eggen made a motion and it was seconded by Barbara Walborn to deny
City Variance #1101 as recommended by staff.
Discussion
Chairman Bollman called for discussion on the motion. Neil Kiner said access to a copy of the
original plat would have been helpful in this case. Jeff Bollman stated there is a lot of potential
development in the area and approval of the variance may set a precedent. Barbara Walborn and
Paul Cox concurred. Neil Kiner voiced concern with the site plan presented and the fact the
property pins have not been located. He said he suspects the pins are located in back of the
sidewalk.
Boardmember
Jeff Bollman
Paul Cox
Daniel Eggen
Barbara Walborn
Neil Kiner
Vacant
Vacant
Yes
1
1
1
1
1
-
No
Abstain
Not Present
-
-
-
The motion carried unanimously. City Variance #1101 is denied, 5-0.
Chairman Bollman called for presentation of agenda item #3, City Variance #1102—
Appeal Hearing Sahara Park Aquatic Center. Ms. Beaudry reviewed the criteria for review and
the staff findings for this application.
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Item #3: – City Variance #1102 – Appeal Hearing – Sahara Park Aquatic Center – An
administrative appeal of the Planning Director’s determination the proposed aquatic center meets
the terms and uses allowed within a Public zone for a parcel of land described as Lots 1A and 2A
of Sahara Sands 1st Filing and 2nd Filing Amended – Sahara Park, a 9.255 acre parcel of land.
Scott McCullough, Larry Seekins and Chad Broderius are the appellants. Candi Beaudry,
Planning Director, issued the zoning compliance determination to Better Billings Foundation on
June 2, 2011.
REQUEST: Appellants Scott McCulloch, Larry Seekins, and Chad Broderius are seeking an
appeal of the Planning Director’s determination that a proposed aquatic center meets the terms
and uses allowed within a Public zone. The determination is in regard to the Better Billings
Foundation (BBF) proposal to construct an aquatic center on a parcel of land described as Lots
1A and 2A of Sahara Sands 1st Filing and 2nd Filing Amended – Sahara Park. The City of
Billings recently sold this 6.7 acre parcel of land to the Better Billings Foundation on conditions
that the land be used for the construction and operation of a family aquatic center, and the land
and all improvements revert to the City if the property is not continuously used for that purpose.
Also by agreement, the BBF has until December 14, 2012 to raise $4,000,000 to complete Phase
1 of the project. If this funding contingency is not satisfied, the agreement becomes null and
void and the property reverts to the City of Billings.
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July 6, 2011
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STAFF REPORT:
In a letter to the appellants dated June 2, 2011, the Director stated the proposed aquatic facility is
an allowed use in Public zones because it met the definition of “public swimming pool”. In a
letter dated June 11, 2011, the appellants provided a counter argument and requested an appeal
of the Director’s determination.
Pursuant to Section 27-1505, BMCC, the City Board of Adjustment must hear the appeal within
a reasonable time, not to exceed 30 days. The appeal stays all proceedings of any action, which
currently there are none, other than the sale of the property. The Board may reverse or affirm,
wholly or partly, or modify the order, requirement, decision or determination.
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ZONING CODE REFERENCE
Section 27-306. District regulations: Commercial and industrial uses:
Titles and
Description of
Industries
SR - Special Review
A - Allowed
Residential Neighborhood Community Highway
Central Controlled Heavy
Public South
Professional Commercial Commercial Commercial Business Industrial Industrial
27th
District
Street
Corridor
793, 799 Bowling
centers;
miscellaneous
amusement and
recreation
services, and
gambling
operations* (except
below):
A
A
A
A
Public Swimming
Pools
A
A
A
STAFF INTERPRETATION
The BBF proposes to construct the aquatic center in two phases. Only phase 1 is covered by the
agreement with the City. The components of phase 1, as described on the BBF website include:
• A zero-depth entry swimming pool
• Water slides
• Wave generator
• Large interactive play feature
• Current channel
• Toddler pool with play features
Other non-aquatic features include a bath house with a small meeting room (approx. 800 sq. ft.),
a concession area, and landscaped green spaces. The website indicates possible future expansion
would include a teaching/exercise pool, expanded deck space and landscaping.
Public swimming pools are an allowed use in Public zones (Section 27-306, District Regulations,
BMCC), but the term is not defined in the Unified Zoning Code. In cases where no definition is
given, the code allows a standard dictionary meaning of the term to be used (Section 27-201.
Definitions). Merriam-Webster Dictionary defines “swimming pool” as “pool suitable for
swimming.” The proposed facility is composed of several water features including waterslides, a
wave pool, a lazy river, wading pools, a play pool and most prominently, a zero-depth-entry
swimming pool, and in future expansion plans, an exercise pool. The primary uses of this
property are the two main pools; the zero-depth-entry swimming pool and the exercise
swimming pool. This zero-depth-entry pool is designed to have a maximum depth of 3.5 to 4
feet and is suitable for swimming. The exercise pool is striped for lap swimming.
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he appellants argue that the proposed aquatic center meets the definition of “water park” which is
defined by the Merriam-Webster Dictionary as “an amusement park with facilities (as pools and
wetted slides) for aquatic recreation.” Amusement parks or “miscellaneous amusement services”
are not allowed in Public zones.
The determination as to whether the proposed aquatic center is an allowed use in Public zones
hinges on whether the predominate use of the property is a “swimming pool” including other
aquatic facilities as accessory to the main use, or whether the use should be viewed in its entirety
as a “ miscellaneous amusement service”.
In support of the determination that the swimming pool is the main use with other accessory
aquatic facilities, the BBF project was compared to other Public zoned properties that contain
similar facilities:
Rose Park – City-owned and operated facility containing swimming pool, wading pool and
spray pools, water slide, recreation water feature in addition to picnic areas and basketball,
horseshoe, volley ball and tennis courts. If taken in total, Rose Park may be considered a
“miscellaneous amusement service”, which is not allowed in this zone. Most of the
individual features are allowed by right in this zone except the water slide. In this case, the
water slide is considered accessory to the main swimming pool.
South Park – City-owned and operated facility containing swimming pool and water slides
in addition to picnic areas and basketball, horseshoe, and tennis courts. If taken in total,
South Park may be considered a “miscellaneous amusement service”, which is not allowed in
this zone. Most of the individual features are allowed by right in this zone except the water
slide. In this case, the water slide is considered accessory to the main swimming pool
Par 3 Golf Course – City-owned and privately operated facility containing an 18-hole par-3
golf course including driving range, putting green, pro shop, and concession area. The
commercial uses in this facility are not allowed in Public zones, but are considered accessory
to the main use – the 18-hole golf course.
Each example has components that are not allowed uses in Public zones. If viewed individually,
some of the facilities on these properties would be prohibited. It is reasonable however, to
consider these facilities as a whole and considering only the primary use as the determining
factor.
City zoning districts were established in 1972. At that time, the code did not contemplate future
accessory uses; water slides, wave generators and current channels were rare in public and
private aquatic centers. Today, however, they are common place (see attached Comparison of
various Waterparks and Swimming Pools), and a contemporary zoning code would likely include
these features as acceptable uses in Public zones
RECOMMENDATION
Staff recommends the Board of Adjustment find in favor of the Director’s determination that the
proposed aquatic center is an allowed use in Public zones.
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July 6, 2011
Page 11 of 44
ATTACHMENTS
A. Applicants’ request for appeal letter
B. Better Billings Foundation Aquatic Center Site Plan
C. Director’s interpretation letter
D. Sahara Park Neighborhood Network questions and Comparison of Various Waterparks
and Swimming Pools
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ATTACHMENT
Better Billings Foundation Aquatic Center Site Plan
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ATTACHMENT
Better Billings Foundation Aquatic Center Site Plan
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ATTACHMENT
Better Billings Foundation Aquatic Center Site Plan
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ATTACHMENT
Better Billings Foundation Aquatic Center Site Plan
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ATTACHMENT
Better Billings Foundation Aquatic Center Site Plan
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Staff Presentation
Planning Director Candi Beaudry opened this agenda item with a PowerPoint presentation and
reviewed the above staff report. She compared existing public facilities that have components that
are not allowed uses in Public zones. She noted if viewed individually, some of the facilities on
these properties would be prohibited. She stated it is reasonable however, to consider these facilities
as a whole and considering only the primary use as the determining factor. Merriam Webster
Dictionary defines “swimming pool” as a pool suitable for swimming. She said the proposal is a
pool suitable for swimming. She gave the definitions of “water parks” and gave the comparisons
below.
Rose Park – City-owned and operated facility containing swimming pool, wading pool and
spray pools, water slide, recreation water feature in addition to picnic areas and basketball,
horseshoe, volley ball and tennis courts. If taken in total, Rose Park may be considered a
“miscellaneous amusement service”, which is not allowed in this zone. Most of the individual
features are allowed by right in this zone except the water slide. In this case, the water slide is
considered accessory to the main swimming pool, which is the dominant use.
South Park – City-owned and operated facility containing swimming pool and water slides in
addition to picnic areas and basketball, horseshoe, and tennis courts. If taken in total, South Park
may be considered a “miscellaneous amusement service”, which is not allowed in this zone.
Most of the individual features are allowed by right in this zone except the water slide. In this
case, the water slide is considered accessory to the main swimming pool, which is the
predominant use.
Par 3 Golf Course – City-owned and privately operated facility containing an 18-hole par-3 golf
course including driving range, putting green, pro shop, and concession area. The commercial
uses in this facility are not allowed in Public zones, but are considered accessory to the main use
– the 18-hole golf course.
She noted a graphic taken from the Better Billings Foundation’s website depicting the proposed sketch
for Sahara Park and pointed out the primary entry feature is the pool suitable for swimming. She said
the public aspect is clear as this is not a private facility with restricted members but will be open to the
public.
Discussion
Chairman Bollman called for questions and discussion from the members of the Board.
Boardmember Daniel Eggen asked if a traffic study has been done. Candi Beaudry replied a traffic
study has not been done but this is not relevant to the definition of a public swimming pool.
Daniel Eggen asked about the site development for parking. Candi Beaudry stated the
accommodations for parking would be considered in the site plan review. She said she simply was
considering the definitions and their alignment with the zoning code. She explained if the Board
affirmed her determination and there were no requests for variances, the plan would go to the
Building Division for review without a public process. She stated City Council has held a couple of
public hearings and similar concerns were voiced. In response to a question by Barbara Walborn,
Candi Beaudry said a site plan is in the packets and was presented at a pre-application meeting. She
noted it was a conceptual drawing to determine the number of parking spaces needed. Daniel Eggen
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED ON SEPTEMBER 7, 2011
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asked if Casper, Wyoming; Bismarck, North Dakota; or cities with similar situations with this type
of use have been considered. Candi Beaudry said Spearfish, South Dakota has a similar facility.
She commented that facilities today often include accessories instead of the conventional diving
board. She said the concept of a swimming pool would include these features as it is more typical.
Chairman Bollman opened the public hearing at 7:30 p.m. and called for Appellant’s
presentation.
Appellant
Scott McCullough, 2730 Black Hills Lane, Billings, Montana
Mr. McCullough called the Board’s attention to page one of the appeal which depicts the location of
this area. He pointed out the following:
• Page 3: The “Big Splash” park is zoned Highway Commercial; and “The Reef” is zoned
Controlled Industrial, with the nearest residence a mile away.
• Page 8: He said there is no standard dictionary definition of a swimming pool and water
parks are defined as amusement parks.
• Page 9: The applicants will not include a traditional swimming pool until later in the future.
• Pages 10-12: Comparative summaries and photos of the water parks, “Big Splash”, “The
Reef”, and “Splash Montana”.
• Page 12: Rose Park, South Park.
• Page 13: chart comparison of the water parks and swimming pools. He noted those owned
by commercial establishments and those deemed a public entity. He stated Sahara Park has
more aquatic structures than any of the other water parks and is clearly commercially owned.
Chairman Jeff Bollman asked if this is considered an amusement park as defined in the
dictionary and Mr. McCullough deferred the question to Chad Broderius.
Chairman Bollman reminded the audience of the need to follow meeting procedures and refraining
from outburst.
Chad Broderius, 511 Poppy Place, Billings, Montana
Mr. Broderius said he is a member of the Sahara Park Neighborhood Network. He referenced page
seven of the handout. He stated the Planning Director has defined this project as a public swimming
pool but it was presented by the Better Billings Foundation, (BBF), as an aquatic center.
Mr. Broderius gave the dictionary definitions of a pool, a water slide, and a water park. He said this
project has every one of the features of a water park. He stated a water park is defined as an
amusement park and covers recreation services. He said this project is a water park and therefore
considered an amusement park. He stated the project is owned by the BBF which is a commercial
enterprise, and not allowed in this district. He said this falls in the Department of Labor’s 799
category (Standard Industrial Code) defining bath houses, life guard services, swimming pools, and
operations of wave pools. Mr. Broderius said this project conforms to all of these elements and is
not a public swimming pool. He commented the people wanted swimming pools in a public district
but not operated by commercially owned establishments. He said public pools are owned and
operated by the City and the literal definition should be used. Chairman Jeff Bollman said the term
“amusement park” is not defined in the zoning code. He commented if property were zoned R-9600
and applied for special review it would be OK, and would have the same use. Mr. Broderius asked
what areas are zoned public in the City and stated Mr. Bollman’s questions are redundant. He said
allowing this as a commercial operation would create a precedent. It was noted Rose Park was
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grandfathered into the current code. Zoning Coordinator Nicole Cromwell stated the code existed in
its present form since 1972. Mr. Broderius said this property as he knows it was given away by the
City; the deed was to be transferred to the BBF with the condition. The zoning was in question
when the deed was passed and this question has been raised for two plus years.
Larry Seekins, 380 Camel Place, Billings, Montana
Mr. Seekins asked this Board find an error was made by the Director by allowing the facility in a
public district; promote literal enforcement of the current regulations; and not allow the erection of
the aquatic center in the public district. He stated the BBF is a commercial establishment and the
proposed community center is a water park. He said the traditional striped swimming pool will not
be constructed until an unspecified time. Mr. Seekins stated the water park features are not allowed
in a public district when commercially owned. He spoke to the definition of Billings’ public
swimming pools which are owned and operated by the City of Billings. He said the definition of the
word “public” is it is used owned and operated by the city or county, public schools, or golf course.
Mr. Seekins said the golf course is in SIC 7999-2 and profits are given to the City. He stressed the
proposed aquatic center can never be a public swimming pool. He said City Council has made it
very clear the Sahara Park aquatic center will be owned by a commercial establishment, and a
precedent will be set to allow “Big Splash” or “The Reef” in a public area. Mr. Seekins stated the
Director’s decision is not based on a study of the regulations. He asked the Board not to allow the
Director to replace the zoning code with a capricious decision rendering the code invalid and
unenforceable. Jeff Bollman stated if this parcel were owned and allowed by the City it would go
through a public process. He stated if the City were to do the same proposal it would comply with
the public zone. Mr. Seekins said it would not. He said the code deals with commercial enterprises
and not with the City. Mr. Seekins stated we can establish what it means by what exists. He said this
parcel is two city blocks in size. Jeff Bollman asked if the Master Plan Review included a
discussion of parking. Mr. Seekins said the neighbors wanted an open space left as natural as
possible and this proposal has been highly controversial since the beginning.
Morris Hall, 460 Tabriz Drive, Billings, Montana
Mr. Hall stated he has been involved with this from the beginning. He said they have asked for
traffic studies but it has not been done since Aronson Road has been built. He stated this is an
extremely busy road. He spoke about the issues of noise pollution and aesthetics pollution for the
residents. Mr. Hall said they have not been presented with dimensions for the park. He commented
the slide will be used for two months of the year and residents will have to have this in view. He
said Rose Park’s slide is more compatible with the surroundings whereas this slide will “stick out
like a sore thumb” all year long. Mr. Hall said he doesn’t understand why an environmental impact
study and a traffic impact study have not been done. Regarding the parking, Mr. Hall said cars
cannot foreseeably park along Aronson Road. He said their questions have not been answered and
the land was given to the BBF against their recommendations.
John Hurd, 442 Aronson Ave, Billings, Montana
Mr. Hurd said Mr. Barthuly stated this is a water park. He said he feels they have been betrayed and
the BBF representative told City Council this is not a swimming pool. He stated he investigated the
property’s zoning when purchasing his property. He asked if a show of hands could be made of
those against this decision. There was several in attendance that raised their hands.
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Adam Bradley, 633 Aronson, Billings, Montana
Mr. Bradley said he just purchased his property and voiced concern with the definition of a water
park. He said it seems an injustice to have a commercially owned property “pop up” down the street
in a small neighborhood. He commented Aronson Avenue has been busy since the bypass to the
airport was constructed. He said although a water park contains a swimming pool, it doesn’t mean
it is a swimming pool.
Julie Thomas, 265 Caravan, Billings, Montana
Ms. Thomas owns property across from this parcel and is a twenty year resident. She said three years
ago they were asked for input by PRPL but they did not want it. She stated the neighbors are not
excited about this proposal as they wanted a neighborhood park. She stressed children’s safety is a
concern due to the high voltage power lines going through the property, the high volume of traffic,
and potential parking across the road with children crossing. She said this park is located within a
natural drainage to Alkali Creek. She asked the literal description of a public park be sustained and
this entity be disallowed. She voiced concern with drainage and flooding as this is a natural drainage
point. She stated desirable land should be set aside for public parks. Ms. Thomas said “The Reef”
has a wave generator but is not a place to swim.
Cindy Lauwers, 546 Aronson, Billings, Montana
Cindy Lauwers stated she is a Business Plan Analyst for the Sisters of Charity of Leavenworth.
Ms. Glothours voiced concerns with potential parking issues, budgetary issues, scaling, and the
potential for only a portion of the plan to be completed. Ms. Glothours stated she feels the location is
wrong. She said the intent of zoning decisions should be considered and this is overdeveloped for
the area.
Kathy Hall, 460 Tabriz, Billings, Montana
Ms. Hall said the neighborhood group has not been against the project but the location. She
suggested using Castle Rock Park and School District #2 has given some concurrence with this
proposal. She asked this Board to stand up for the regulations as they are read. Jeff Bollman stated
Castle Rock Park is also zoned Public and would not be allowed. Ms. Hall said initially
Harvest Church was going to host this facility on their church grounds.
Public Hearing
At 8:08 p.m., Chairman Bollman opened the public hearing and called for proponents of
City Variance #1102—Appeal Hearing –Sahara Park Aquatic Center.
Alex Tommerup, AT Architecture, 848 Main Street, Suite 7, Billings, Montana; 170 Erickson
Court
Mr. Tommerup is the agent for the Better Billings Foundation. He thanked the Board for this
opportunity and read aloud a letter from Farhad Madini, Consultant, Aquatic Safety Experts LLC.
and a letter to Mr. Chuck Barthuly, Better Billings Foundation from Richard C. Scott AIA, Principal
Architect in support of the Planning Director’s decision. Mr. Tommerup referred to the inserted
table describing the differences between a typical municipal Family Aquatic Center and a water
park, including characteristics, number of pools, the area of water, price of admission, season pass
costs, goals, and ownership. He noted the phrase, “The municipal pool has changed over the last 25
years. It will continue to change...” Mr. Tommerup pointed out that aquatic centers attract families
with children to new subdivisions and housing values will go up. Regarding the question of parking,
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED ON SEPTEMBER 7, 2011
July 6, 2011
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Mr. Tommerup stated they have met with the City Public Works Department and 114 parking spaces
are recommended based on the parking standards.
John Schaff, P.E., 1188 Fantan Street, Billings, Montana
Mr. Schaff is certified as a professional traffic engineer and has been involved with this project,
donating 1,000 hours of his time. He said the site mapping, site grading plan, and traffic study has
been completed along with a geotechnical study and drainage plan. He stated this is a high profile
community project and he wished to correct inaccuracies. He stated a detailed draft traffic study was
completed in March 2010. He noted Aronson Avenue is an arterial street and carried about 6,000
cars a day which is about half of its capacity. He said they have considered the intersection of
Aronson Road and Caravan Road for safety issues and developed a safe appropriate design for this
facility.
Mr. Schaff said they have complied and worked with the City through the entire process. Mr. Schaff
said it is a wonderful opportunity when an organization steps up to do something the City is unable
to do. In response to a question by Jeff Bollman regarding improvements required on Aronson
Road, Mr. Schaff explained no further improvements are needed as the peak hours of this facility
does not overlap with the peak traffic hours. In response to a question by Daniel Eggen, he said the
intersections at the facility and beyond the facility are considered. They have coordinated with
pipelines, power lines, and the drainage to accommodate all concerns on site design. He explained
national studies and site specific studies are considered for traffic generation statistics.
Andrew Billstein, 614 Crawford Drive, Billings, Montana
Mr. Billstein is assisting the BBF in the capacity as an attorney. Mr. Billstein stated he wished to
address a uniquely narrow interpretation of the zoning regulations. He said the BBF is a 501(c)-3
public charity; does not have investors or share holders; and is restricted by Federal law. He stated
Staff is correct and the neighbors are wrong. He asked the Board to take logic to its logical
conclusion if the SIC 799 use is not allowed in Public zones. He said clearly ancillary uses are
allowed with a principal use similar to motels with conference rooms; laundries with arcades; and
drive-in theatres with food services. He submitted a copy of the Industrial Group 799 to the Board.
He pointed out life guard and swimming instruction is included in the SIC 799. He said
improvements are depicted do not meet the definition of a swimming pool, but included ancillary
items such as fencing. He said although there may be a majority of neighbors opposed, it may not
mean all are opposed.
Chuck Barthuly, 300 Eastlake Circle, Better Billings Foundation, Billings Montana
Mr. Barthuly referred to the PowerPoint presentation, “Better Billings Foundation”. He thanked the
Board and Staff for their work and stated he is the director of BBF. He said he is not an expert in
procedures or aquatics but knows this proposal is not a water park. He said from the industry
standard it is not defined as a water park. He said it is a question of the mission, the scale, and the
scope of the project. He said recreational facilities provide alternatives for high risk youth from
entering the juvenile system and their vision is to provide a safe place for children and family to
swim at no cost to the tax payers. He stated they reviewed the feasibility study and noted 38% of the
community surveyed prior to the destruction of Athletic Pool stated they found this a high priority.
He stated according a 2002 report, the hottest trend in aquatics is the leisure pool concept.
Mr. Barthuly said the age of a conventional pool in recreational settings is dead. He said the study
completed in November 2009 had several public processes. He stressed this is community aquatic
center and will address the need for swimming lessons. They anticipate providing aquatic therapy,
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED ON SEPTEMBER 7, 2011
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water aerobics, and 450 swimming lessons per year. He stated Water Technology Inc. is a premier
aquatic planning design and engineering firm and these types of pools are developed throughout the
country in similar neighborhoods as it adds values to homes and their developments. He said a
30-foot waterslide will be included and the project is a swimming pool with ancillary water features.
Mr. Barthuly noted according the business plan, they plan to accommodate 450 swimmers a day
with a daily load capacity of about 750. He pointed out a depiction of a view of the facility from
Caravan Avenue. Mr. Barthuly stated 75% of the funds needed have been raised and said broad
based community support has been received, including City Council, City Staff, City Planning, and
local schools. He submitted copies of letters of support to the members of the Board. He stated the
scale of the project is appropriate for residential areas. He said the school district had no interest in
donating land as they wish to maintain their properties for future expansion. He pleaded the broader
community be allowed to be the benefactor of a facility for kids and families. Boardmember Paul
Cox asked about funding future maintenance. Mr. Barthuly said the feasibility study shows funds
for future maintenance, and they are prepared to receive endowments. In response to a question by
Boardmember Daniel Eggen, Mr. Barthuly stated the BBF was formed in 2004.
Planning and Community Services Director Candi Beaudry reminded those in attendance the
decision is not based on the merits of the project such as pros and cons. She stated the consideration
today is whether this is a swimming pool with on-site accessory facilities.
Rebuttal
Larry Seekins, 380 Camel Place, Billings, Montana
Mr. Seekins stated he agrees with the Director as this is simply a zoning issue. He referenced page
five of the handout. He said Section 799 limits these uses to six zones and does not include public
zones.
Chad Broderius, 511 Poppy Place, Billings, Montana
Mr. Broderius stated this is not a public City owned swimming pool and the regulations specifically
say “public swimming pool”. He stated those spoke in favor are not in the Sahara Park
neighborhood which will be primarily impacted. He said “public facility” is the key term as this is a
public zone and needs to have a public or semi-public facility built there. He said “Big Splash” is
for sale along with the “Big Timber Waterslide”. Mr. Broderius said the City has looked to put a
nonprofit organization on “free” parkland in competition with these businesses. He stated 383
residences are affected by the zoning decision. He stressed this is strictly a zoning interpretation.
At 8:54 p.m., Chairman Bollman closed the public hearing and called for a motion.
Motion:
A motion was made by Boardmember Cox and seconded by Boardmember Walborn the
Board of Adjustment find in favor of the Director’s determination the proposed aquatic
center is an allowed use in Public zones.
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July 6, 2011
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Discussion:
Chairman Bollman called for discussion on the motion. Paul Cox stated the issue is the definition of
an aquatic center. Neil Kiner stated the codes state “a public swimming pool” and he struggles with
placing a privately held facility on public lands. He suggested a zone change should have been done
prior to deeding the property. Paul Cox commented it is tough to bring these facilities into
communities without the money. He said unless a commercial entity gets involved these types of
facilities will not be done. He stated the definition of a pool and a aquatic center is one and the
same. He said the Task Force will be involved in the development of the project. Barbara Walborn
commented things change and evolve. She said she understands the “Not in My Back Yard”
feelings of the neighborhood. Jeff Bollman said he was involved when the code was re-written in
1997 and there was no thought given to the definition. He said the predominant use is the pool. He
noted other definitions relate to being in the service of the community and this differentiates between
a public and non-public use. He stated he appreciates the work of the neighborhood in getting their
point across even though he disagrees. He said he reviewed the definition in the zoning code of
public uses and read it aloud. He stated this particular use as proposed meets this definition and will
be voting in favor of affirmation. Daniel Eggen said he is torn with this decision due to both the
strong voice in favor and opposition. Nicole Cromwell read aloud Code Section 27-1505, subsection
“F” which speaks to appeals and variances and states a concurring vote of four is needed to reverse
an administrative decision. She said four members are needed for a quorum.
Boardmember
Jeff Bollman
Paul Cox
Daniel Eggen
Barbara Walborn
Neil Kiner
Vacant
Vacant
Yes
1
1
1
1
1
-
No
Abstain
Not Present
-
-
-
The motion carries 5-0 and City Variance #1102 and the Director’s determination the proposed
aquatic center is an allowed use in Public zones.
Other Business/Announcements:
A. Announcement: The next City Board of Adjustment meeting will be held on Wednesday,
August 3, 2011.
CITY BOARD OF ADJUSTMENT-CORRECTED AND APPROVED ON SEPTEMBER 7, 2011
July 6, 2011
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