Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on June 1, 2017 at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Aron Majic called the meeting to order at 7:00 p.m. ROLL CALL OF MEMBERS Present Absent President Majic Board Member Joe Manchin, IV Board Member Deasy Board Member Shultz Board Member Ragan City Staff Present City Manager, Robin Gomez City Planner, Sandra Scaffidi Planning Dept. Secretary, Maria Cipolla APPROVAL OF MINUTES President Majic asked for a motion to approve the minutes from May 4, 2017. Board Member Ragan motioned to approve the minutes. Board Member Deasy seconded the motion. Motion carried 3-0. PUBLIC HEARINGS FOR April 6, 2017 1. Ramkabir Properties, Inc. is requesting an appeal regarding an administrative opinion provided by the City of Fairmont Planning Department regarding the exclusion of the use of gasoline pumps at the Economart located at 1600 Morgantown Avenue as cited in City Zoning Code Section 3.1.3.E.i. This appeal is in conjunction with City Code Section 8.9.8. The property is located in a Neighborhood Mixed Use Zoning District. (Tax Parcel 06-09-42). President Majic asked for the staff comments since there was not anyone present to speak for or against this request. Sandra Scaffidi: The subject property located at 1600 Morgantown Avenue previously served as a gas station and has two existing pumps on the property. Section 3.1.3.E.ii states that “automotive, boat, heavy equipment, manufactured home repair, sales and service including filling stations are exclusions from the Neighborhood Mixed Use Zoning District. Planning Staff determined that the site had lost its grandfathered status allowing the use of gasoline pumps in a Neighborhood Mixed Use District due to the fact that the business license issued by the City of Fairmont had expired. As stated in Article 8.3.H, the abandonment of a non-conforming use shall be determined if one of the following conditions exists, and shall be deemed to constitute intent on the part of the property owner to abandon the non-conforming use: i. Utilities such as water, gas, and electricity to the property have been disconnected ii. The property, building and grounds have fallen into disrepair as evidenced by proper Code violation documentation; iii. The business license issued by the City of Fairmont has expired While the property has not fallen into disrepair, the previous owner last paid for a business license on June 5, 2014 for the 2014/2015 year. That license expired on June 30, 2015. City of Fairmont records indicate that the business was no longer in operation as of October 2, 2015. According to the City of Fairmont Zoning Code, “if a use of a property that does not conform to this Zoning Ordinance has ceased and the property has been vacant for 1 year, abandonment will be presumed and the non-conforming use shall not be allowed to re-establish” (Article 8.3.1.G). Page 1 of 4 The applicant originally applied for a conditional use permit for the Convenience Store. This application was approved by the Board of Zoning Appeals on May 4, 2017. The applicant applied for an appeal of the administrative decision relating to the gasoline pump use on April 21, 2017. It is my recommendation that the Board follows the regulations as stated in the Planning and Zoning Code and denies this appeal request. The final decision of the City of Fairmont Board of Zoning Appeals shall be subject to review by the Circuit Court of Marion County, WV by certiorari as provided by WV Code §8A-9-1 et seq. I would also like to say the Board of Zoning can suggest a course of action to the Planning Commission to consider reviewing the code in this situation and suggest amendments as they see fit. President Majic: Do you know if the current tanks under the ground are up to code? Sandra Scaffidi: I heard today, from our Building Inspector, they were inspected. I don’t know if they are up to code. That is something I can find out. Board Member Deasy: How long has it been since they pumped gas there? Sandra Scaffidi: I don’t how long it has since the pumps were used. President Majic: I used them towards the end a couple of times. I do remember the pumps being older. They actually had the rolling numbers. It has been a services station my whole life. I like your suggestion about sending a request to the Planning Commission to review this issue. When I look at Morgantown Avenue, I just see business everywhere. I know there are some residential homes on that road; however, you can start at the tanning salon and see Woodchuck, Compton’s, the Shaw House, a church, the middle school, a flower shop, a Circle K all the way down to another Circle K. If we were to vote in favor of this, does that go against the Comprehensive Plan? Robin Gomez: Yes. There are some inconsistencies what are commercial corridors in Fairmont and their zoning. You pointed out Morgantown Avenue. You see commercial and very limited residential from Merchant to East Park Avenue. If you go from East Park Avenue all the way down to Suncrest Blvd. and there is a little bit more of resident homes, but it turns into industrial down to the end. There is currently a service station under construction on the other side of the City on Locust Avenue that is surrounded by residential homes. This is a brand new development. This has a different zoning than the matter before you this evening. To best correct this is what Ms. Scaffidi mentioned about proposing changes to the City code. Comments have been made to our contractor hired to update the City’s Comprehensive Plan. We need to look at the different uses particularly in our commercial corridors. That is what should occur. Gia Deasy: I’m confused. We approved for them to have the little convenient store the last time we met, right? Robin Gomez: That is allowed under the current zoning which is Neighborhood Mixed Use. The gas station is not allowed under Neighborhood Mixed Use zoning district. That area can be argued that it is a main corridor. You can make the same argument what it currently is also. It is a little bit of an inconsistency if you look on the other side of the City where the areas appear to be very similar [Locust Avenue verses Morgantown Avenue]. The gas makes this situation different. Most cities have different classification in their zoning and land use to control what types of businesses can go where. We do that very well here. Our current laws where written with the intent to maintain existing uses, but only to a certain extent. Gasoline is a hazardous material and not everyone may want one so close to their home. Gia Deasy: I understand. Sandra Scaffidi: Actually, this is specifically listed as exclusion under the current zoning. Mike Ragan: If they are grandfathered, do they have to bring this business up to environmental code before they can open? Page 2 of 4 Robin Gomez: Yes, but we don’t perform the direct inspections. They would need approval from the State, EPA and the DEP. President Majic: If the pumps are outdated, they would have to update them. Robin Gomez: They would have to go through our process to make sure they do meet all State and City regulations. Gia Deasy: Are they still able to open up the convenience store? Sandra Scaffidi: Yes. But on their application, they do claim a hardship if we do not allow the gas station. I do believe they are still moving forward with the convenience store. President Majic: The gasoline is what gets the people into your convenience store, usually. It is not where you make your money, but it is how you get them to spend the money. I would like to have the Planning Commission review the current zoning as a conditional use instead of granting them a variance. Sandra Scaffidi: This Board can only vote on the matter at hand. However, I think a suggestion can be made that we look into having the Planning Commission review the situation. Unfortunately right now, it is listed as exclusion. President Majic: It is unfortunate that the previous owner did not keep up with the utilities or keep their business license active. Robin Gomez: At the same time, when purchasing any property there is some due diligence that needs to occur so this doesn’t happen. If they had made a phone call to the City, we would have explained to them what can and cannot go in there, along with any questions they may have had. That did not happen. We are not aware when properties change hands. President Majic: Would the proper procedure be to make a motion to deny as submitted, but make a suggestion to the Planning Commission review the current zoning of Morgantown Avenue? Sandra Scaffidi: Maybe make a recommendation that the Planning Commission takes a look at this particular situation. Gia Deasy: Will the notes from our discussion of this meeting reflect that? Robin Gomez: They will. President Majic: Do I have a motion? Mike Ragan: I make a motion to deny approval of this request as submitted. Gia Deasy: I second the motion to deny. Motion Carried 3-0 DISPOSITION OF PAST CASES None OTHER BUSINESS None Staff Updates: Gia Deasy: Thank you for inviting us to the Comprehensive Plan meeting. It was nice. I wish I could have stayed longer. Page 3 of 4  ADJOURNMENT President Majic asks for a motion to adjourn. Board Member Ragan motioned to adjourn. Board Member Deasy seconded the motion. Motion carried 3-0 Page 4 of 4