Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on April 2, 2015 at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Wood called the meeting to order at 7:00 p.m. and asked for a roll call. ROLL CALL OF MEMBERS Present Absent President Richard Wood Board Member Raymond Friend Vice President Kevin McClung Board Member Joe Manchin Board Member John Six City Staff Present City Planner Katherine Wyrosdick Recording Secretary Mark Miller APPROVAL OF MINUTES President Richard Wood asked for a motion to approve the minutes from February 5, 2015. Board Member John Six motioned to approve the minutes. Board Member Joe Manchin seconded the motion. Minutes were approved 4-0. PUBLIC HEARINGS FOR April 2, 2015 President Richard Wood: Public Hearing #1 Rudy Hoffert of City Neon, Inc., on behalf of Busy Beaver, is requesting a variance from the Fairmont City Code, Section 1342.08 (3) (B) (3) (Multi‐Tenant Developments) at his business which requires that the aggregate area for all signs is to be limited to one and a half (1 1/2) square feet per one (1) lineal foot of street frontage with a maximum aggregate area of one hundred (100) square feet. The proposed wall sign to be placed is approximately 299 square feet. (Tax Map 03‐58, parcel 37). City Planner Kathy Wyrosdick: As mentioned, the proposal is for 299 square foot wall mounted sign where only a 100 square feet is permitted. There also will be a sign placed on the monument sign for the multi-tenant shopping center that can be seen from the road. This is a variance request. With all variance requests, the Board must find affirmative to the “five findings of fact” that were listed in the board members’ packets. Kathy then stated what those “five findings of fact” are. After, Kathy added that staff does not support this variance request because we do not feel the applicant justified where the variance met the “five findings of fact.” Most notably, in the past when the board has reviewed variances for signs, if the variance allowed for better visibility to the roadway because of a challenging location, then the variance was granted. In this situation, the larger sign will not allow any greater visibility to the roadway because the building cannot be seen from the roadway but a passerby will be able to see the monument sign. It is not until you are actually on the property and within the Center that you can even get a clear view of the wall sign. So, we do not feel that a greater wall sign will provide any benefit and none of the “five findings of fact” have been met. Page 1 of 9 President Richard Wood asks if there is anyone present to speak in favor of this request. Rudy Hoffert, from City Neon, part of the reason Busy Beaver is requesting the variance is due to size of the storefront. They compared it to the other storefronts up there. One of them being Food Lion, who has a very large sign for their large storefront. They are afraid that just a 100 square foot sign will look like a postage stamp on a larger storefront. They have the second largest storefront up there. They have also requested that the sub-panels go with it. They explain what they do there. Since they are newer business to the area and people may not be familiar with what they do. Kathy Wyrosdick, responded by adding, thank you for mentioning the sub-panels. Sub-panels are not included in the overall square footage of the sign. They would be permitted in addition to the size of the Busy Beaver sign. President Wood clarified that the sub-panel are not going into the count. It is just the Busy Beaver main sign that is the one that is 300 feet instead of 100 square feet. Kathy Wyrosdick said yes. President Wood asked if there was anything from the Board. Board Member Joe Manchin stated that his biggest concern is that looking at how large that storefront is up there, if you follow the variance as it is in the code right now, does it look disproportionate to the actual storefront. That is my big question. If a Home Depot or Lowes were looking to locate up there, I think their signs are pretty large. The sign almost looks symmetrical to the storefront; the way they have it present here in this picture. I have been reading this the last week and I am very familiar with it. I have been up there when it’s an empty space and it is a large storefront. President Wood asked if there was anyone else to speak on behalf of this request. There is not. President Wood asked if there was anyone to speak against this request. There is not. President Wood asked for a motion to close the public hearing. Board Member Joe Manchin motioned to close. Board Member John Six seconded. Motion to close 4-0. Page 2 of 9 President Wood stated that since it is a large enough storefront that it needs bigger than 100 square feet, if you could prove that to me. Somehow I don’t think it needs three times the amount of what is allowed up there. It is not like someone is going to drive along and say “Oh, there is a new store up there.” They are going to be there. All you really have to do is once you get to Marion Square, be able to locate where their store front is. Having a billboard size sign does not seem to me to meet any particular purpose other than sign pollution. Board Member Joe Manchin asked if it would look symmetrical with the other businesses that are up there now. President Wood states that you cannot use the argument that because there is already non-conforming signs up there, that are bigger than the ordinance that we should allow more non-conforming signs. That is like saying we already have bars and a strip club in the middle of a residential neighborhood, so if you want to put another one in, they are already there so we will go ahead and allow this one in. Board Member Joe Manchin stated that he was just asking if it would look symmetrical. President Wood said that is why he is saying if there is some argument to be made that 100 square feet, it just looks like a tiny little sign on this great big storefront, I can maybe buy that but I don’t see why it has to be as big as a billboard. We are not talking about a 50% percent increase. We are talking about a 200% increase over what the variance allows. Board Member John Six states he understands that the size of the building is linked to the size of the business. Maybe 300 is too big but I don’t think we should possibly go under 200 feet. That would justify the size of the business and let people know that this is a good size business and not some small hole-in-the-wall. President Wood asked if there was any more discussion. Board Member Joe Manchin asked if the picture they presented is with the 299 square feet. Kathy Wyrosdick said yes. Board Member Joe Manchin asked if there any renderings of the 100 square feet and what it would look like. Rudy Hoffert stated that he does not has any of those currently but that he could get them for you. Board Member Joe Manchin states that what he always liked about this development is that it is set back off the road so it doesn’t seem like you have residents there. He asked if it was a back-lit sign. Rudy Hoffert said yes. Board Member Joe Manchin asked if it would be on for 24 hours a day. Rudy Hoffert said no. President Wood asked if there is a motion or further discussion, either one. Board Member John Six motioned that we allow a sign with a square footage of 200 feet. Page 3 of 9 Board Member Joe Manchin seconded. Motion in favor is 4-0. City Planner, Kathy Wyrosdick than reminded Mr. Hoffert that he will need finalize his sign permits before he can continue. President Richard Wood: Public Hearing #2 Task Force on Domestic Violence, HOPE Inc., is requesting Conditional Use approval for an institutional use of the former LT Harry B Colburn US Army Reserve Center located at 1611 Mary Lou Retton Drive. Proposal is to use the property as a domestic violence shelter according to Section 1317.05(b) (3) of the Neighborhood Mixed Use section of the Planning and Zoning Code. (Tax Map 04‐9, parcel 58). President Wood asked for the staff’s recommendation. City Planner, Kathy Wyrosdick explains that this is a project that has been going on since before she started working for the City of Fairmont. It has been a very complicated and difficult project because involved the Department of Defense and their base realignment which recommended closing the Army Reserve Center. As part of that closure, the city was asked to go through a reuse process giving priority to homeless providers. Through that process, the Planning Commission, after a public hearing, did support the reuse of this property for housing the homeless. HOPE, Inc. was the only entity to submit a proposal. After much deliberation with the Department of Defense, HOPE and the City of Fairmont, we are now to a point where HOPE would like to occupy this building. So now we are getting into the zoning aspect of the request. The zoning of this property does identify as Neighborhood Mixed Use. The intended use for a homeless shelter, specializing of course in the issue of domestic violence, would be classified as an Institutional Use and would be permitted under certain conditions. Therefore, it has to go through this Conditional Use process which brings them before the Board tonight. What you have before you is that specific request for a conditional use as an Institutional Use. The conditions under which the Board would make this determination, a lot of those conditions had contemplated a new build or new development. Hope has provided a conceptual site plan and as you will note, nothing is really going to change on the property. They propose to move into this site without any exterior improvements or renovations to the property. So the building will not get larger, additional driveways will not be added, and the building will only be improved on the interior. The parking will need some weeding to happen. But beyond that, the site really will not change. If the site were to change, if they were in need of additional space, at that point they would have to come back in front of the Board and get another Conditional Use approval, a public hearing would be held and the residents living there would have an opportunity to give their input to the Board on what is being proposed. The Planning Commission has reviewed this and they are supporting the reuse of this property for Hope’s purposes. We feel that the property is being maintained as is. It has adequate access of Mary Lou Retton Drive. It sits on just about four acres. So it does have a lot of space separating it from surrounding residential. So staff does recommend the approval of Conditional Use. There are a number of representative from Hope that are here. President Wood said we will hear from the applicant who wants to make an explanation of the request. Zachary Wallen, an attorney with the law firm of Steptoe & Johnson, representing HOPE, Inc. This has been a very long term process. Kathy’s summary was very thorough of the issues involved in the consideration of this application. I only wish to say that HOPE, Inc. has provided support services to the residents of the City of Fairmont and surrounding region for more than three decades now. Its acquisition and redevelopment of the Page 4 of 9 former Army Reserve Center will aid HOPE in continuing that mission for decades to come. The proposed repurposing will be an interior only renovation and represents a very low density use on a 4.25 acre site. HOPE, Inc. is an established licensed service provider, whose application before you tonight, is fully within the spirit and purpose of the Planning and Zoning Code. Thank you and I will be happy to answer any questions you might have. President Wood asked if anyone from the Board had any questions at this time. Board Member Joe Manchin asked, when you say the surrounding region, how far does HOPE encompass for this area here? Do you know? Harriett Sutton, the Director of HOPE, Inc. respond by saying she wasn’t sure what he was asking. Board Member Joe Manchin said that Mr. Wallen was saying that it helped the residents of the City of Fairmont and the region. I just didn’t know how many counties. Harriett Sutton stated that they serve Marion, Harrison, Lewis, Doddridge and Gilmore Counties. So people from those five counties might be housed in that facility. We are licensed by the Family Services Protection Board which is with the Governor’s Committee to oversee shelters. We have to meet all kinds of different codes on an annual basis usually; fire codes, health codes, all the inspectors come in and tell us whether or not we have to improve things or what we have to do. We have been working on obtaining this facility since 2005. That is when we put in our first application and Kevin probably remembers all of that. It has finally come to this conclusion. We believe we are waiting on the Department of Defense to put their stamp of approval on it. When that happens, it will become the property of HOPE, Inc. Kathy did a wonderful job of explaining it and has been incredibly helpful to us as we have been through ten years. Thank you. President Wood asked if there were any other questions from the Board at this time. President Wood asked if there was anyone else who wish to speak in favor of this. There is not. President Wood asked if there was anyone present to speak against this. Richard Leeson, a property owner. His property adjoins the Army Reserve. Stated that he wasn’t really against this, he just had questions. How many people will be housed there? Will there be any kind of fencing put up? We don’t know what to expect. Our children play in our backyard and it is a concern. We are not really against it but we would like to know. City Planner, Kathy Wyrosdick stated at the last iteration of the interior improvements, as I recall, and Harriett you might be able to update me better, that there were six bedrooms or will there be more? Harriett Sutton said they are licensed by the Family Protection Services Board, which is appointed by the Governor of the state, to have and house 11 adults. We also have the capability to have 3 children. So the max would be 14 people in that facility at any given time. Probably less and obviously mixed. It would not be just 3 kids. Kathy Wyrosdick asked the number of employees you have. Page 5 of 9 Harriett Sutton stated that they are a multi-county facility. We have offices in all of our other counties. There probably will be 10 to 12 employees. I would think there will be less going on with us there, to tell you the truth and a lot more police presence. Our intent is to beautify as much as possible the outside of the building. So it will, in fact, look more residential. I wish I had brought the rendering because it would give you a good picture of what it will look like when we are done. We appreciate your concern and know that it is a concern. We would like to have the whole area fenced in, if we are allowed. We won’t be using much of the wooded area. Richard Leeson stated that is where his property adjoins. President Wood asked if there is anyone else present that wants to speak to this issue. There is not. President Wood motioned to close to close the public hearing. Board Member John Six motioned to close the public hearing. Board Member Joe Manchin seconded. Motion in favor is 4-0. President Wood asked if there was any discussion from the board. There is none. President Wood asked for a motion. Board Member Joe Manchin motioned to approve. Board Member John Six seconded. Motion in favor is 4-0. President Richard Wood: Public Hearing #3 Clifton Jackson is requesting an appeal from an administrative decision which determined that the proposed tire repair and replacement service at 337 Cleveland Avenue (Tax Map 03‐01, parcel 116) meets the definition and intent of an automobile repair/sales/service use as defined by the Planning and Zoning Code, City Center District, Section 13717.07 (b) (4) and is therefore not permitted. President Wood asked for the staff’s recommendation. City Planner, Kathy Wyrosdick states the request is an appeal of the decision that is not a permitted use at the site. The request was to operate a facility primarily just using the garage portion of the building for a tire sales, services, and repair facility. It was staff’s opinion that this did meet the definition that is stated in 1303.03, which states that the automobile heavy equipment, manufactured home sale and service includes any building, premise and land in which upon or upon the primary use of land is a business which involves the maintenance, servicing or sale of new or used automobiles. It goes on to include other things like boats and manufactured homes, including light trucks, vans, or trailers. The definition includes but is not limited to auto dealerships, Page 6 of 9 auto body shops, auto service stations, boat repair or sales, car washes, convenient stores, gas stations, heavy equipment leasing, sales, or service, manufactured home sales or service, and oil lube services. This does not include the sale of parts only or related products such as an auto parts store. The proposed use for the building as a tire sales, repair, and replacement business would meet this definitions, in staff’s opinion, and was therefore denied for occupancy. I would like to point out that the Board is only to consider whether or not this decision was correct. The Board does not have the power to grant a variance from the land use nor does the Board have the power to change the zoning classification of that property. The rezoning of the property would have to go through other proper channels of Planning Commission and City Council review. A land use variance is not an allowable power of the BZA. The only decision is looking at the decision made by the administrator and whether or not that was a correct interpretation of the definition. President Wood adds that he wants to emphasize that last point because in most of the cases that are administratively appealed, they want this body to allow them to do the project. We can think it’s the greatest project we have ever seen walk through the doors in Fairmont. We can’t do that by law. We have to determine if there was some era in the interpretation of the code. That’s the only thing we can do. President Wood asked if there was someone to speak in favor of this appeal. Cliff Jackson started by saying he was sorry to waste the Boards’ time. He did not realize this was the process. We actually had to file a variance request and then had to fill out a general appeal form. I thought this was the venue for that variance. But that said, I’d like to introduce myself and set the frame of reference for this request. The will be practice for City Council if nothing else. I’m here tonight because I am passionate about Fairmont and I want to promote economic development in the city. In fall 2005, I purchased the old Time Warner Cable building at 217 Fairmont Avenue. It was vacant and dilapidated. It was actually on the condemnation list at the time. I rehabbed it and Health Naturally opened there in 2007. In 2007, I also joined Mainstreet Fairmont and Fairmont Southside Blueprint Community Team and my interest in economic development increased. In 2008, I purchased 205 Fairmont Avenue. It was vacant and dilapidated. The roof leaked and there was significant damage to the third, second and first floors. I rehabbed it and New Mystic Art Center opened there in 2010. It is current the home of the Connecting Wing since their home perished in a fire. A year and half ago, I purchase the old Fairmont Tire Center with the same intention of rehabbing it and putting a new business into it. I am here tonight to further that end. Mr. Winston, who is with me tonight, has lots of years’ experience in the tire retail industry. It’s his dream to own a tire center. It is his dream to open that store here in Fairmont, preferably here on Cleveland Avenue. We believe that it will be a benefit to the community and serve our citizens very well. However, I do understand that the use of the old Fairmont Tire Center as a new Fairmont Tire Center is not allowed under the current Fairmont Zoning Code. I care deeply about our community and I know everyone in this room does as well. I believe the intent of the code is to build the community we desire. I believe a tire center may not be the ideal business for the City Center. When that time comes, I expect the market conditions to further that decision. Between now and then, I think that this new business will be beneficial. It will bring up to ten new jobs and up to $10,000.00 or more in B & O revenue. More importantly to me, 5,000 to 8,000 new people a year, who will have an hour to spend and be on foot, in our Downtown. Now those people going on up the avenue, they are not going to walk six or seven blocks and visit Joe-N-Throw or one of the shops, but I believe they will if they are on Cleveland Avenue. That is all I have, thank you. Kathy Wyrosdick asked Cliff Jackson if that (his written statement) was willing to submit for the record. Cliff Jackson said sure. Page 7 of 9 President Wood asked if there were any question from the Board at this time. President Wood asked if there was anyone else to speak in favor of this. There was not. President Wood asked if there was anyone present to speak against this. There was not. President Wood than asked for a motion to close the public hearing. Board Member John Six motioned to close. Board Member Kevin McClung seconded. Motion in favor is 4-0. President Wood asked if there was any discuss or motion. Board Member Kevin McClung motioned to support the decision by the staff. Board Member Six seconded. Motion in favor 4-0 DISPOSITION OF PAST CASES None. OTHER BUSINESS President Richard Wood states that the Election of Officers came up at the last meeting but we only had three members present and we thought it would be better to do this when he had more of the members here. President Wood asked if the Board would like to have a discussion on this matter or what would you like to do. City Planner, Kathy Wyrosdick stated that someone can nominate someone. Right now the chair is Rich Wood and the Vice chair is Kevin McClung. President Wood asked if they wanted to nominate individually. This was agreed upon. Board Member Kevin McClung stated that he feels Rich Wood is doing a wonderful job and nominated him. President Wood said he was nominated as chairman. Does anyone second it? Board Member Joe Manchin seconded. Motion in favor 4-0 Page 8 of 9 President Wood asked for a motion to nominate a Vice Chairman. Board Member Joe Manchin nominated Board Member Kevin McClung. Board Member John Six seconded. Motion in favor 4-0 and President Wood congratulated Board Member Kevin McClung. President Richard Wood asked if there was anything for the good of the order. Kathy Wyrosdick added that she would like to remind the Board that there is new, revised Zoning Code that will go online very soon. Not only has it been updated and amended to fix some areas that needed to be fixed but it will also be in a brand new format called Clearzoning. There will be a lot of additional graphics. There will hyperlinking within the document and a two-page overview of each zoning district. It is much easier for non- planners to understand. It’s designed to be user-friendly to the masses. We are really excited about that moving forward. It passed Planning Commission last month and will go before City Council this month. And if adopted, it will be effective the end of May. It will be housed on our website. As it is amended, you will see those amendments going immediately into the document rather than what happens now. It will also be hyperlinked to our zoning maps. Now our zoning maps, for the first time, will be fairly readable online. President Wood said he has two questions on that. Will the City have to have a public hearing since it is an ordinance? Kathy Wyrosdick said correct. President Wood asked if it was online to review yet. Because at the time you had the public hearing, it was not online anywhere. Kathy Wyrosdick states that we need to get it on our website. The functionality of the zoning code is not completed yet because the consultant will not do that until after it is formerly adopted. That does take some time. You can at least see the document online and we can forward you a copy of it as well so you can look at. A lot of the changes we made do the zoning document were in direct relation to a lot of the variance requests that were being brought before this Board. In the cases where the Board was approving those variances that was an indication that those regulations needed to change, such as front yard parking. You will see less and less of those variances coming before you. We have handled them administratively within the zoning code. ADJOURNMENT President Richard Wood asks for a motion to adjourn. Board Member John Six motioned to adjourn. Board Member Joe Manchin seconded. Page 9 of 9