Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on August 6, 2015 at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Richard Wood called the meeting to order at 7:00 p.m. ROLL CALL OF MEMBERS Present Absent President Richard Wood Vice President Kevin McClung Board Member John Six Board Member Raymond Friend Board Member Joe Manchin City Staff Present Interim City Planner Mark Miller Recording Secretary Maria Cipolla APPROVAL OF MINUTES President Richard Wood asked for a motion to approve the minutes from July 2, 2015. Board Member John Six motioned to approve the minutes. Board Member Joe Manchin seconded the motion. Minutes were approved 3-0. PUBLIC HEARINGS FOR August 6, 2015 Public Hearing #1 Mottie Pavone is appealing an administrative decision of the Fairmont Building Inspector regarding a nonconforming billboard along Locust Avenue (Tax Map 01-11, Parcel 14). President Richard Wood stated, whenever we have an administrative case, I want to make it clear what this body can and cannot do. This body cannot approve the billboards. We can’t give a variance to build the billboards. The only decision this body can do is determine whether the interpretation, in this case by the building inspector, is correct or there was an error in that interpretation. That is all we can decide. When you make your comments, you need to address where the error is, not whether it is a good idea or a bad idea to have the billboards. We have no say on that. Only, did he follow the code or is there some reason why you feel the code was not followed. President Richard Wood asked for a staff report from Interim City Planner, Mark Miller Mark Miller stated the building inspector was unable to make it here tonight. He did make us some notes that I have passed out to the Board members. The non-conforming billboard located on Locust Avenue had been removed by Lamar of Bridgeport West Virginia. Mr. Pavone called and wanted to install a new billboard at the same location. At which time he consulted with the City Planner at the time, Kathy Wyrosdick. She confirmed the area was zoned Main Corridor Commercial and billboards were not permitted. At that time, the building inspector handed everything over to the Planning department. The building Inspector did go out today and determined the existing posts left from the old billboard would not be sufficient to support a new billboard. In our preparation for the meeting, the building inspector called Lamar. He spoke to Alisha McCoy, the account Manager, who commented that the owner requested the Page 1 of 6 billboards be removed for future development of the site. She did tell him they are grandfathered in and that if he took them down, they would not be able to be put back up. I met with the applicant on June 25, 2015. We talked about the sign regulations. I feel I had explained everything really well. I explained everything that Mr. Wood had just commented on. I told him there would have to be an error in our interpretation. There are two specific sections that deal with non- conforming signs. Article 5.3.9, Non-Conforming signs. “A” states, in the event a non-conforming sign has structure damaged in any matter, it may be repaired or reconstructed as it was before unless 30% or more of the sign is damaged. Because the Building Inspection was not given the opportunity to inspect the billboards before they were taken down, we felt this article did not apply. Had Mr. Pavone come in prior to taking down the billboards, we would have gone out to the property and inspected the condition of the billboards. He may have only needed to replace a post here and there. So what we looked at is Article “B”. This says, in the event a non-conforming sign is structurally altered in any manner, the entire sign and structure shall be removed and a new sign that conforms to the requirements of this ordinance may be erected. Kathy Wyrosdick, the building inspector and myself interpreted that once the sign was removed, it could not be put back up. President Richard Wood asks if applicant was present to speak in favor of this. William Oliver stated the section that you mentioned, part A with the 30% rule, is part of the reason we are having this meeting. I have been on the Planning Board for 16 years, for the last 8 -9 years I have served as President on the board. Mr. Wood knows I have helped with the Comprehensive Plan. We wrote 90 % of the rules and regulations in the new book. When Mr. Pavone contacted me about the sign, he said that it was deteriorating and getting ready to collapse. The part on Section A, would have been able to work for Mr. Pavone. I gave him wrong information upon how to do it. When he called me, I knew he was grandfathered. I knew the sign would be o.k. to be rebuilt to the same size, same specs. What should have been done, was to remove a pole, put a pole back up and so on. He went and removed it all. When he called for a building permit that was when everything became a fiasco. So part A would have applied if I would have done my job as a city official and told him the correct steps to do. In sixteen years, I have not made an error on that Board. I have never had to come to you to tell you have done something wrong. I gave wrong advice on how to handle that billboards. I should have told him to take it down in sections instead of rebuilding it. I did go and look at the structure. It was dilapidated. That is why he did what he did. I take full responsibility for leading somebody in the wrong direction with the question that was asked of me. President Richard Wood asked if the Board had any questions at this time. Board Member Manchin asked, are you looking to put three new billboards back up? William Oliver added, the poles are still in the ground. He has pictures showing them so many feet up above. He just chain sawed them down. His intent is to put three billboards back up as I understand it. He wants to build it exactly back to how it was originally. I just told him to take it down instead of taking it down in sections. Mattie Pavone, of Morgantown, I agree with what Bill said. The other part is, there are remnants of the billboards still left in the ground. I am going to compare this to a basketball hoop. You take the basketball hoop down but the pole is still there. You add a piece of the pole back to it, you can put your basketball hoop back up. If you are grandfathered in but leave pieces of the pole there, essentially the basketball hoop is still there. You just have to use your judgment on that. If there is enough there to move forward and rebuild. President Richard Wood asked if there were any questions from the Board. Page 2 of 6 President Richard Wood added, I want to make sure everyone has an opportunity here. The section of the code that we are dealing with here is 9B. In that section, it says “altered in any manner” whether we have part of it gone or a little bit of it gone. If there is a little bit gone, you might be able to get under the section A, the 30% rule, but under “B”, it says altered in any manner, it cannot be rebuilt if it is non-conforming. Your job is to convince us there is some wrong interpretation there. That is the only way we can do anything. William Oliver said it would have been under the section “A” part of it, it would have been allowed, if I had given him the correct information. President Wood stated, that is not the situation we have. I understand there was an error and problems like that but the simple fact is, the code says this, we have to determine whether the inspector interpreted the code correctly. I need arguments on why it is not interpreted correctly. That is what is comes down too. William Oliver added, the billboard was altered because basically another city official told him to alter it. Then we would be definitely be under the A clause. He would have just taken down the billboard in pieces. Mottie Pavone said, we have billboards all over Morgantown. I have material. We have a whole bunch of them beside Morgantown Mall. We can take them down and put one back up in three hours. President Wood asked if they were in Westover. Mottie Pavone said they are outside the city limits. President Wood said he understands the circumstances and if it had been handled differently, it could have been under section A, and I don’t know if this body would have had a problem or not with that but that is not what we have an opportunity to vote on. The only thing we can vote on, is if the interpretation is correct or not correct that the building inspector made. I am not hearing an argument were that is the case. Unfortunate circumstance, Yes. Understandable, Yes. But a misinterpretation of the code, I don’t see it yet personally. I can’t speak for the others. Board Member Manchin asked President Wood, if we are going strictly by the book, which we are charged to do, do they have any recourse after this they can do? Is there a municipal judge that he can bring his case to? President Wood said, yes, but the challenge there is, it is the same circumstance. You don’t get to go to the judge and say let me build my signs. It is we don’t agree that they acted properly as the Board of Zoning Appeal. We are appealing that based on they didn’t do this or they did this. You don’t go and say throw all that out and let us build our signs. It doesn’t work that way. Essential what you have done is, appealed the building inspector’s decision to us and then your recourse would be to go to the judge and appeal this decision. William Oliver added, right, but if I would have told him to go to the building inspector first, everything would have been o.k. Mark Miller said, but we can’t appeal your decision here. William Oliver said, right. Page 3 of 6 Mark Miller added, if you would have had him call me first instead, that is where we missed a step. Board Member Manchin stated, when I was just reading this on face value, I was absolutely ready to go with the decision and vote no. But you hear the circumstances. They wouldn’t even be here right now if proper information was given. I am looking at this and I don’t want to put anything in anyone’s head but is there room now that they can charge the City with “now you are preventing me from obtaining revenue because I wasn’t given the right information. That is what scares me about this whole situation right now. If Mr. Oliver would have given him the proper information, they wouldn’t be here right now. They would have taken it down piece by piece and made sure that 30% was met. President Wood said, yes but the problem is, Mr. Oliver is not an employee or an agent of the City. He is a volunteer Board member just like us. Well intended but not an official of the City. Mottie Pavone added there are remnants of the poles that held the billboards still in the ground. It might be 30%. It might be more or less. I’m not sure how much pole is under ground. You would have to use your judgment. There could be 20 or 30 foot of pole in there. Board Member Six asked Mr. Pavone if he could explain exactly why he took them down. You said they were damaged. Mottie Pavone said, yes, they were. Board Member Six asked, are there any pictures to show the amount of damage? Mottie Pavone said no. I really didn’t think it was a big deal to take them down and put them right back up. It is 3 6 X 6s. You drill three holes, put the pole in, put up sheets of plywood and you are done. They had been there a long time. I also own all the property up behind it. That is 7 ½ acres of ground there. I would like to do something here in Fairmont but it is just hard with something as simple as this. Board Member Manchin added, that was my next question. In the notes that Mark was reading about Alisha McCoy, did you say what she is saying here? Did you request the billboards be removed for future development? Mottie Pavone said, yes, and because they were dilapidated. Board Member Manchin added, my thing here is if you put up three new billboards, is this going to hinder your future development? Would you have to tear them back down or are you going keep them up. Mottie Pavone said no, in the meantime, the revenue from the billboards would help pay the property tax on the land. It is all it amounts too. President Wood said, we may still have some additional questions. President Wood asked if there was anybody else present to speak in favor of this. There were none. Page 4 of 6 President Richard Wood asked if there was anyone to speak against this project. There were none. Mr. Robert Gribben stood up at this time and asked if he could speak. President Wood said yes. Mr. Robert Gribben said, I would like to speak in favor of Mr. Pavone’s request. Just on the general basis of business, doing something overall improving business in Fairmont, and improving people’s thoughts and viewpoints about Fairmont and how it functions. It would seem to me that there some liability there. It may not be this organization as the victim or the person that has the brought on the issue and the problem but it seems like not common sense but “good sense” to use some sense here. President Wood said, o.k., any additional comments? There were none. President Richard Wood asked for a motion to close the public hearing. Board Member Six motioned to close. Board Member Manchin seconded the motion. Motion in favor 3-0 President Richard Wood asked if there were any discussions or questions at this time. Board Member Manchin asked, how does this work since we are just a three person quorum tonight? Does the decision here tonight have to be unanimous or can it be 2-1? Will it carry 2-1? President Wood said, that is a good question. He turned to Interim City Planner, Mark Miller and asked if he had the code book. President Wood said, if you have a quorum, it is the members present. President Wood than read from the Planning and Zoning Code, the City of Fairmont must hast have a quorum to conduct a meeting. A majority of the members of the Board shall constitute a quorum. No action of the Board is official unless it is authorized by the majority of members present at a regular meeting. So it could be 2 to 1 to carry to motion. Board Member Manchin added, as far as comments, I hate to be the jerk that always seems like he is saying “oh, come on City, lighten up, it is a code” but again I am just looking at the whole scenario and for that reason if what I make a motion to is absolutely wrong than let the power that be appeal my motion but I am going to make a motion that we do allow Mr. Pavone to put the signs back up the same way. President Wood said, you can’t make that motion. You can only make a motion that the interpretation of the building inspector is an error and why it is an error. President Wood said, if there was some variance process involved, that we could address. This is an administrative appeal. We can only address this one single issue. Whether we care to have to billboards or don’t care to have the Page 5 of 6 billboards, we don’t have that authority. The only thing we can do is make a determination on the validity of the administrative agent’s interpretation of the code. Board Member Manchin said, because of this information, I didn’t see any errors made so I will have to make a motion to deny this appeal and to uphold the decision of the building inspector because we have no power to change anything. President Wood said, it is like I say in every one of these cases, we may think the project is the best thing since sliced bread but we don’t have the power to make that determination. We can only determine whether or not the code was properly interpreted or an arbitrary decision. That goes back to the state code, the bylaws and ordinances. That is what they give us the chance to do. William Oliver asked, how big was the existing sign? Mottie Pavone stated it was 12 x 24 feet. William Oliver asked about the 30% law applied to the billboard of this size. President Wood explained, there are two sections. If for example, one of those trees fell down and smashed part of it. If it was less than 30 %, than you could have rebuilt it. That is what that provision is for. But the provision that applies right now is the 9b which states if it is altered then it cannot be rebuilt. It can be rebuilt if it is in a zoning district that allows for billboards but not if it is a non-conforming sign. That is basically the interpretation of the code. William Oliver asked if the grandfathering is lost one year after it is torn down, 30 days or is it right after it is torn down? Mark Miller added, section A doesn’t apply so it is as soon as the sign came down and loaded on the truck, they lost their grandfather status. Board Member John Six seconded the motion. Motion in favor is 2-1 Board Member Manchin went on the record to opposing the motion because I know our hands are tied but I have to somehow do my civic duty. President Wood said the motion still carries. DISPOSITION OF PAST CASES None OTHER BUSINESS None ADJOURNMENT President Richard Wood asks for a motion to adjourn. Board Member Manchin motioned to adjourn. Board Member Six seconded the motion. Page 6 of 6