Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on November 5, 2015, at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. Board Member Manchin called the meeting to order at 7:00 p.m. ROLL CALL OF MEMBERS Present Absent Board Member Joe Manchin President Richard Wood Board Member John Six Board Member Ray Friend Board Member Aron Majic City Staff Present City Planner Mark Miller Recording Secretary Maria Cipolla APPROVAL OF MINUTES Board Member Manchin asked for a motion to approve the minutes from September 3, 2015. Board Member John Six motioned to approve the minutes. Board Member Ray Friend seconded the motion. Motion carried 4-0. PUBLIC HEARINGS FOR November 5, 2015 1. Miller School Associates, LLC is requesting a variance from Article 5.4.2.A Parking Requirements to permit a reduction in parking for the Miller Schools Apartments project. The Planning and Zoning Code requires 1 parking space per bedroom for multi-family residential. The proposed plan provides 70 bedrooms and 53 parking spaces. (Tax Map 03-29, Parcels 164, 165 and 166). Board Member Manchin asked if there is anyone here to speak for this request. Chris Sadd said, I am representing the Miller School. The actual application is for 48 parking spaces instead of 53 spaces. We have done a project like this in Charleston, WV. Fortunately in Charleston, the ordinance is actually one parking space per apartment for the elderly and not per bedroom so we fell very nicely under the code. To review a like bit about the application, the project will be built into 48 apartments; 22 two bedroom and 26 one bedroom for a total of 70 bedrooms. The deed restriction will be put on the property that will last for 30 years. The deed restriction deals with the type of tenants that can live on the apartment property. They must be elderly and lower income people. Most of the tenants will have an adjusted median income of 60% or less of area median income. A certain percent of the remaining units they can only earn 40% of the area median income. The property is targeted for people in the lower income of the area. A lot of these people don’t have cars. They can’t afford cars or they are too old to drive. What we typically find is if there are 48 apartments, a 1/3 of those people will have a car. This information comes from talking to other landlords and looking at other properties around Charleston. Board Member Manchin asked, with your Charleston property, does it turn out that the majority of the rent comes from federal or state subsidies? Page 1 of 9 Chris Sadd replied, with the project in Charleston, we have a lot of people who have section 8 vouchers. With a section 8 voucher, they can live anywhere they want. The Charleston property has wood floors, high ceilings, tall windows, and is very popular in Charleston. The Miller School is very similar to what is in Charleston. A lot of these schools were built in the 1910’s and 20’s. They are constructed the same way and look the same. The typography of the land is not suited to build any more parking spaces. It drops off. They have put as much parking on there that the property will accommodate. We feel it is important that we offer a certain amount of two bedroom apartments because a lot of people have caregivers that come in and stay with them. Some people have roommates. We could make these all one bedroom apartments but than we would be leaving out a lot of people who need a second bedroom. Also, we do apply for federal tax credit funding for the project. When you build a two bedroom apartment, you get more money for a two bedroom apartment than a one bedroom apartment. Without that extra money from the two bedrooms, you start to lose your nerve a little bit. Board Member Manchin asked, do people have their own private bathrooms or is this a hallway situation like a dormitory. Chris Sadd stated, these apartments would be like any other market-rate apartment. This would be an $800.00 or $900.00 a month apartment in Charleston. They have their own bathroom, kitchen fully equipped with energy star appliances. They have their own heating and cooling system that they control. We are supplying a washer and dryer in every apartment. There will be a community area inside and one outside. There will be a computer lab for people who use the internet (Chris is now showing pictures of their property in Glenwood in Charleston). Board Member Manchin said, so from this, based on the zoning ordinance, we sort of go through these proto calls that we will find if it meets this criteria. Pretty much here in Fairmont, number one, will not affect the public health, safety or welfare of the rights of adjacent property owners, residents, or the neighborhood. Staff analysis, the requested reduction in parking does not appear to adversely affect the safety of the adjacent neighbors. It is projected that less than 20 tenants will own vehicles. Number two, arises from special conditions or attributes which pertain to the property seeking the variance. Staff analysis, this is a proposed reuse of an existing lot that is irregularly shaped with the rear property line angling sharply. Number three, would eliminate an unnecessary hardship and permit a reasonable use of the land. Staff analysis, the parking lot is existing with little to no room for expansion due to the topography of the site. Number four, will allow the intent of the Zoning Ordinance to be observed and substantial justice done. Staff analysis, the zoning ordinance provides for variances due to the topography, size, and other issues with the property not created by the owner. Number five, is the minimum variance that will accomplish this purpose. Staff analysis, the applicant is proposing a reuse of the property that will not have a negative effect on adjacent property owners. Based on the information provided from the applicant with regards to this project and the effects of similar projects and their surrounding properties, staff supports the approval of the requested parking variance. Board Member Manchin asked, do we have anyone else here to speak against this request. Charles Hillberry said, I reside in the fifth district in which the Miller School property is located. I am coming up here to speak against the variance and point out a couple of things in recent history in the City of Fairmont. Miller School Associates are in business, as we discussed here tonight. They are receiving various grants and subsidies for this property. They are in business to make money. I understand that. I appreciate that. I am not against their program and what they present here tonight. A couple of things. What I want to point out is code enforcement and zoning in the City of Fairmont. Here we are talking about grant funded and subsidy supported property. Let’s look at for-profit private business in the City of Fairmont and how zoning enforcement has been enforced. I’ll say this. If I wanted to build a dorm building out on Locust Avenue for Fairmont State, would I be held to the same standard; one bedroom to one vehicle? Look at the barbeque restaurant down in Bellview. They were ready to open. The City came in and the bathrooms didn’t meet code. They didn’t meet ADA. They stopped them and made them tear the entire thing out and redo it. Board Member Manchin asked, when did that happen? Page 2 of 9 Charles Hillberry replied, about three months ago. If you look at Bufferbelly’s, they wanted to put up a LED, a private business, a LED sign. The City stopped it. It violated the zoning code. If you look at when Huntington Bank sold their front unit to Dry Cleaners World. And part of the agreement between two private businesses was that Huntington could keep their sign up, they had to remove it because it violated code of one business placing a sign on the property of another business. All I am standing here saying is, and in terms of due diligent for their business model, if, what is it now 42 parking spaces. I agree the typography and the shape of the land around the Miller property, you have to but adjacent property going further down Pennsylvania Avenue to do any expansion whatsoever because you have a street supported by a retaining wall behind it. There probably is some possibility to develop that area for pedestrian traffic for seniors. I hope with traffic going in and out of that pull out, they work with that. It can be a nightmare. But, I’d like to speak against the fact, if they are expanding. If a business model can’t function based on what City Zoning Code is, one parking space per bedroom is, than they probably have to re-examine. I think giving them a flat blanket where other businesses would probably not be given that kind of courtesy, I think you all should consider not approving the variance. That is all my comments are. Any questions of me. I have no vested interest in any way, shape, or form with this property. Board Member Manchin said, that is what I was going to ask. Pretty much, the adjacent property owner is Mr. Joe DeBellis. He is not here. I am not saying that is right, wrong or indifferent. My thing is, the building has been sitting vacant. I’m not saying you are the bad guy. You are just saying if a new business came in and tried to do something, they would be not be held to different standards. Charles Hillberry said, yes, that is what I am saying. Board Member Manchin added, well I would hope not under my watch. If our Constitution can be a living, breathing document, why can’t our zoning code. If there is something that is going to help our community, why I wouldn’t be for it. Is this something, Mr. Hillberry that you’re against going forward? Charles Hillberry said, no. I am not against the project or stopping the project. I am only saying in terms of you all being the Board that deals with appeals, issues and conflicts with zoning code, that whether we are looking at strictly private for- profit business or some form of subsided grant funded activity, that we consistently apply it in the same manner. That is the reason I am standing here tonight. Board Member Manchin said, thank you so much. With that, if we have any further staff analysis from our City Planner, Mr. Mark Miller. Mark Miller said, most of everything has been said but I will comment that we have been in discussions with the Miller Group for a couple of years now. My predecessor had a lot more involvement in it than I did. I want to point out a couple of things. Each item that the BZA hears is decided and approved on an individual basic. You mentioned a couple of things. They are not necessarily relevant to what we are doing tonight but I certainly appreciate it. The only other thing I did want to mention many city, Charleston included, that have had this type of housing come into their market have made accommodations in their zoning code to accommodate this type of activity. This is something fairly new for us. We just did a major revision to the zoning code and it wasn’t something that we knew of that we should look at. Looking at Charleston and some of the other bigger cities that have these, they do allow one parking space per apartment rather than per bedroom. As Mr. Hillberry said, that is the standard we normally use for apartment and would use up at Fairmont State. I think a precedent has been set in this type of housing that not all people will have vehicles. Board Member Manchin added, I think in the report it said that it is project that there might be 20 people that do not have vehicles that will be renting. I don’t know where that analysis comes from. Page 3 of 9 Chris Sadd said, to give you an idea of the income. Some might only have a monthly income of $900.00 a month from Social Security. These are generally lower income people and a car is just not feasible or they don’t have a license. Board Member Manchin asked Mr. Hillberry, so your argument was more towards new project coming forward and if they would be held to the same standards as other groups are held too. Charles Hillberry said, that we have a consistent standard whether it’s private industry, whether it’s funded, or a government project, that we have a consistency across the standard across the board regardless of the entity that is coming forward. If they a willing to put in housing, that it is looked at in the same light and attributes. This is the standard for you and this is the standard for you. Board Member Manchin said, Thank you. Is there is anyone here to speak against this request? There were none. Board Member Manchin asked for a motion to close public comment. Board Member Friend motioned to close. Board Member Majic seconded the motion. Motion carries 4-0 Board Member Manchin asked for any discussion among the panel. There was none needed. Board Member Manchin asked for a motion on the requested variance. Board Member Majic motioned to approve the requested variance. Board Member Friend seconded the motion. Motion carried 3-1 2. Andrew Zicafoose is requesting a 3’ Variance to construct a garage and a 3’ Variance to construct an open wooden patio from Article 3.1.2.F (Accessory Structures) at his 429 Walnut Avenue residence (Tax Map 03-02, parcel 26). Board Member Manchin asked if there is anyone here to speak for this request. Andrew Zicafoose said, the reason I am requesting this variance is because I’m dealing with a property that was built in 1901 well before they were any international residency codes. A lot of the property that was back there before, was built on the property lines. It was a brick building. It was one and half stories. In 2006, it said on the deed there was an agreement between a mechanic and the lady who owned the house. They went to replace the roof and the building collapsed. When the building collapsed, you couldn’t build on top of it. Everything was gone. Because there is no support there, bricks started coming in. With the winter we had last year along with all the water movement with no drainage, it just fell. With the best of my ability, I went down to the code office and asked them for a permit for the retaining wall. They gave me the permit. I have always wanted a garage back there. I built the retaining wall with the hope of it becoming the foundation for the garage. I know that was a big hope since I knew I had to come before you to make that happen. There was some other concrete that had to be moved from the property because of drainage issues. That is what puts us here now. For public safety reasons, it would be a lot nicer, safer, and steady for the neighborhood for me to be able to put that wooden deck back there with the wall back there. I am just a victim of circumstance in this. Board Member Manchin There were none. Board Member Manchin asked City Planner, Mark Miller for his staff report. Page 4 of 9 Mark Miller said, there are criteria that we have to look at when we are granting a variance. One, will not adversely affect the public health, safety, or welfare of adjacent property owners. The proposed garage does not appear to adversely affect the safety of adjacent neighbors. There were no negative agency comments from City agencies. There are no fire separation issues due to the removal of the adjacent home earlier this year. Two, special conditions or attributes, the lot is irregular. The entire rear yard is sunken. I would estimate about eight to ten feet below the grade of the house. As he rebuilt these walls to hold back the neighboring properties, he did work with the building inspection. He built a very nice wall with the hopes of using it for the foundation of the garage. Three, will eliminate an unnecessary hardship and permit reasonable use of the land. In order to maintain the property, the block wall was constructed to serve as a retaining wall. Four, will allow the intent of the zoning ordinance to be observed. The zoning ordinance provides for setback variance due to setback, typography, and other issues with the property. As Mr. Zicafoose said, they are certainly not issues he created. He is trying to maintain what he has. Five, is the minimum variance that would accomplish this purpose. The applicant is purpose the construction of a garage and an open patio on the other side. I have made a site visit and do not feel it would have any negative effect on adjacent property owners. You should have a five foot setback from the side so it will leave a two foot setback between his property and the neighboring property. As I said, there is not a structure directly beside where he is purposing a garage. Board Member Manchin asked, and the neighbor is not here to speak against this variance? Mark Miller said, no, and we have spoken to him about it. Board Member Manchin said, thank you Mark. Board Member Manchin asked if there is a motion to close the public hearing. Board Member Six motioned to close. Board Member Friend seconded the motion. Motion carried 4-0 Board Member Manchin asked if there was any discussion. Board Member Friend asked if Code worked with him when he was building his wall and that it can support a garage. Mark Miller added, they are. He has them built with the hope to use that for his garage. Mark has Mr. Zicafoose if he already put the lags in. Andrew Zicafoose said, I already put the lags in because they are filled cider blocks with rebar. It’s above and beyond anything that Code requires even for a retaining wall. I put the lags in it since we were pouring the concrete. It’s better to have the lags in it when the concrete is wet then to put them in after it has dried. Board Member Friend asked if there were any issues with storm water. Mark Miller said there would be no issues that weren’t there before. Andrew Zicafoose said, it is a concrete pad back there, everything is concrete Board Member Friend asked, does it shed anyway from where you are going. Page 5 of 9 Andrew Zicafoose said, it sheds away. If there is any sloping that needs to be done because of cracks, uneven settling, or anything along those lines that would be handled. All the drainage that is underneath the gravel and everything else that I have put in does drain out to where it is supposed to drain out. It drains away from the garage. Board Member Manchin asked for a motion on this request. Board Member Friend motioned to approve the request. Board Member Majic seconded the motion. Motion carried 4-0 3. Sue Meluzio, of Vantage Point Realty, is requesting approval for an office, expanding a non-conforming use within an existing building, located at 702 Morgantown Avenue – Article 8.3.2.C (Tax Map 05-04, parcel 34). Board Member Manchin asked if there was anyone to speak in favor of the request. Sue Meluzio said, I am the owner of Vantage Point Realty. We have been in business for six weeks now. It is exciting. I have one of my agents, Rita Smouse, who previously lived in the apartment. Her sister-in-law actually owns the building. They have offered it to us as a rental space at a fantastic price. I am a brand new company. That is pretty amazing. On an average day, we would have one to two cars there. There is no one there on a regular basis. We do have ten agents that twice a month, I have a two to three hour meeting. They would be there twice a month. That is pretty much it. It is pretty standard. Arch Street is pretty long to that we can actually park on the street and would not inhabit any driveways or anything like that. Do you have any questions for me? Board Member Manchin said no, I know where this building is. You are across from Chick’s Bargain Center. No questions from me. Board Member Manchin asked if there was anyone here to speak against this request. Sharon Maier said, I bought the house right across from them on Arch Street. There is fainted yellow paint all the way down the sidewalk. They park on that sidewalk every day, the Kitchen & Bath. They are on the first floor. They are going to rent the three apartments upstairs also. Board Member Manchin said, I thought the office was going upstairs. Sharon Maier said no, they are wanting to put an office in downstairs and three apartments upstairs they are going to rent. The brother told me that and there are rent signs outside. I’m a nervous wreck. Board Member Manchin said, don’t be nervous. No, no. It’s fine. Sharon Maier said, I just bought my house a year ago in June. I have been yelled at. I have been blocked into my house because my driveway goes down underneath my house where I park my car. In order for me to get out, I have to back up which it has walls on both sides of it. I have to back up onto the road and then swing down to get onto Morgantown Avenue. I have called them and asked them if they would please not park where I get out. They park there anyway. The police have come over. They told them if they catch them parking there, they would give them tickets. Yesterday, there were four cars parked there. Page 6 of 9 Board Member Manchin asked, so you can’t get out of your driveway? Are you blocked in? Sharon Maier said, when they are parked on that sidewalk, I have to back out. I go almost to the sidewalk to come back out. On my side of the road, I don’t park on it. I don’t care if they park on my side of the road. Just leave me room to get out. Board Member Manchin said, and what you are afraid of with the new business is it is going to create more parking hardship. Sharon Maier said, they already block me in. They have yelled at me. They told me I didn’t know how to drive. I have a little car. If they rent three apartments, they have no parking whatsoever. Chick’s has a parking lot. The doctor’s office has a parking lot. I have my garage. The people behind me have their own parking space. Behind this building, there are four parking spaces. Four cars are there. I think it’s the brother of the woman who owns the building. They use to live upstairs. Somebody died and left them the house. Board Member Manchin asked, so right now for the building that exists, there really is no parking? Sharon Maier said, no there is no parking. The buses come down for the school. What are people going to do, reroute the buses? You know they can buy me out if they want too. They can make their parking lot. There is a house they are trying to sell behind me with a lot. They can buy that and make it into a parking lot. I would like for you to bring your car over and pull it in my garage and back it out. I can see how you do it. I don’t like to fight over this. Board Member Manchin replied, this isn’t these people. It’s the people who are there now. Sharon Maier said, I don’t know who it is. Board Member Manchin said, they are not respecting your ability to get in and out of your parking spot. Sharon Maier said, that’s right. All my other neighbors talk to me. They treat me nice. I treat them nice. There are no complaints whatsoever. I want that yellow line painted back. It is illegal to park on the sidewalk. Board Member Manchin said, I know you going to want to punch me in the face right now but this is not the Board in which you want to do that. You want to go to the Public Works. You want to prevent these people right here. Sharon Maier said, I don’t even want the renters. Where are they going to park? Don’t you have to have parking spaces for people to rent your place? Board Member Manchin said, that is why we are going to put all of the pressure on this guy next (Mark Miller). Brenda Pritz said, I own Kitchen & Bath RX. I own the building. I have never yelled at her or made fun of her. I have never had any conversation with her. There are occasions when my customers do pull up. There is parking on the side on the sidewalk. I measured it from the curb to the side of my car, it is 19 feet. That is more than enough room for her to come up and turn to get out. There was someone in the house before who lived there for nine years. She was a single lady also and was always able to get out. Nothing has changed except her. I just wanted to bring that up. Page 7 of 9 Board Member Manchin said, there is no easy answer here. There really isn’t. Do you feel you have enough room to get out of your driveway? Sharon Maier said, no, when they are parked there, I really don’t. Board Member Manchin asked, is there something maybe that the City of Fairmont can do? Maybe put a sign on that sidewalk. Maybe that is something we can look at. I don’t know. Sharon Maier said, the police even told them not to park there. Board Member Manchin said, well of course. But I am saying if there is a sign that saying parking to here. That gives you enough area to move. Sharon Maier said, I don’t care if they park down near the road as long as they don’t park in the spot where my driveway is so I can come out. Board Member Manchin asked, if they park down near the road, what about car coming down the road trying to turn in and out? Now they can’t see. Sharon Maier said, what about me backing up? Board Member Manchin said, absolutely. I am telling you there is no easy answer here. Sharon Maier said, the man that lived there. She said she lived there. Her husband told me when he lived there, he backed up out of their driveway and hit a car. Rita Smouse said, I lived in that apartment for 17 years. I am also a realtor with Vantage Point. There are not three apartments upstairs. There are two apartments. As far as yelling at my neighbors, I have never yelled at any of my neighbors. I am not a yelling type person except at my husband but we have made it 49 years. What I would like to say about living there is that in many instants we had as a renter, we had more than two vehicles there. We were there 17 years. We have never had a problem in the neighborhood during the time my father-in-law owned the business. He had the business there for thirty some years. We have never had a problem with parking with anyone who lived in that house until this year. This the first problems we have had. I don’t know why there is such a problem but there is. Mr. Banardo lived in her house for many years and pulled a pickup truck in and out of there when there was a floor covering business in there. Then there was a furniture business in that building. Education Resources was in that building. During the times when we are getting ready for school to start from the end of June through September, the whole street would be parked full of cars. Nobody had problems getting in and out. So I am not really sure why there is a problem now. I can say I have been there and witnessed it. I have lived it. Yes, my family owned the building. Brenda is my sister-in-law. But if it was a parking problem, we would have never suggested it. Board Member Manchin said, absolutely. All I am trying say is, a lot of times these buildings were built years and years ago where on the average, one family had one car. I know things have changed. I just want to find a happy medium here. I really do. I don’t want you to be blocked from getting out of your driveway. No one should have that inability to get in and out of where they want to go. Page 8 of 9 Rita Smouse and Sharon Maier are arguing back and forth at this point. Board Member Manchin said, what this Board does has nothing to do with any of this. People yelling at each other. We are the Zoning Appeals. He then explained to Sharon Maier more about the current request and how it works. Board Member Manchin asked Mark Miller for his staff analysis. Mark Miller said, I have made a couple of notes. There are two apartments upstairs so your office will be up there and one other apartment. These are existing units so being apartments and the parking, it’s grandfathered in. When we go back and look at the older stuff, it is hard to apply the new regulations. The reason we are here is its zoned General Residential. This is just what it sounds like. It is set up just for residents but there has been business in that building forever. What we are supposed to look at here tonight is anytime you want to expand that business, it’s called a non- conforming use, and it has to come before the Board of Zoning for approval. Mark Miller discussed with Sharon Maier what the City could do to help with her parking issues. Board Member Manchin said, with that, we took the staff report and analysis, we looked at the Zoning Code that has been passed by City Council, do we have a motion to close. Board Member Friend motioned to close. Board Member Majic seconded the motion. Motion carried 4-0 Board Member Manchin asked, do I have a motion for or against this request? Board Member Six said, I make a motion that we accept the non-conforming use with the recommendation that staff checking on the street and parking issues taken care of. Board Member Manchin asked is it contingent on that or is this just a recommendation? Board Member Six said, a recommendation. Board Member Friend seconded the motion. Motion carried 4-0 DISPOSITION OF PAST CASES None OTHER BUSINESS Mark Miller said, since Kevin McClung has stepped down from the Board, we need a Vice-President. It has also come to my attention that Rich Wood will not be continuing after January. So at this point, all I am going to ask for is if you have any ideas for potential candidates, they do have to live in the City, please invite them to join this Board. ADJOURNMENT Board Member Six asks for a motion to adjourn. Board Member Majic seconded the motion. Motion carried 4-0 Page 9 of 9