Board of Zoning Appeals

BOARD OF ZONING APPEALS The regular meeting of the Board of Zoning Appeals was held on September 7, 2017, at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Majic called the meeting to order at 7:00 p.m. ROLL CALL OF MEMBERS Present President Majic Absent Board Member Manchin Board Member Shultz Board Member Deasy Board Member Ragen City Staff Present City Planner, Sandra Scaffidi City Manager, Robin Gomez City Attorney, Kevin Sansalone Senior Staff Assistant, Maria Cipolla Director of Finance, Eileen Layman APPROVAL OF MINUTES President Majic asked for a motion to approve the minutes from August 3, 2017. Board Member Manchin motioned to approve the minutes. Board Member Ragen seconded the motion. Motion carried 4-0. President Majic asked for a motion to approve the minutes from August 17, 2017 (Special Session). Board Member Ragen motioned to approve the minutes. Board Member Deasy seconded the motion. Motion carried 4-0 PUBLIC HEARINGS FOR September 7, 2017 1. Peter and Lauren Bonasso of 111 Gilbob Street are requesting a variance from City Code Section 3.1.1.F General Residential Zoning Development Standards to place a 10x16 storage building (accessory structure) 0 feet from the lot line instead of 5 feet from the property line due to the location of an existing concrete pad. The property is located in the General Residential Zoning District and is identified as 4-5A-59. Lauren Bonasso: We currently have a metal building that is rusting and falling apart. We would like to replace it with a brand new wooden building that is a little bit larger. We have a gigantic concrete slab. It would be hard to remove. We would like to place the new building on the existing slab. The slab is five from the neighbor to the right, but it is on the property line of the neighbor behind me. I did bring pictures. I also brought a letter from the neighbor behind us stating his approval of placing the new building on the existing slab and of the overall appearance of the property. They also presented a letter from the neighbor behind them speak in favor of their request, information on the building they want to have, and pictures of the property. Maria Cipolla read the letter for the record and a copy is in the file. Nobody spoke against this request. Board Member Deasy motioned to close the public hearing. Board Member Manchin seconded the motion. Motion carried 4-0. Page 1 of 19 Sandra Scaffidi, City Planner: My interpretation of this code prevents an accessory structure to be constructed within 5 feet of the rear and side yard. While I understand the applicant’s desire to reuse an existing concrete pad and it is a lot thicker than I originally thought, I do not see how we can allow an illegal use to continue if the existing building is going to be removed. The applicants appear to have a large lot that would accommodate a shift of 5 feet in the location of the proposed building. Again, there is no unnecessary hardship associated with this variance request, no special conditions and this variance will not allow the intent of the zoning ordinance to be observed. It is my recommendation to deny this variance request. Board Members discussed the variance request. Board Member Manchin motioned to approve the request. Board Member Ragen seconded the motion. Motion carried 4-0. 2. Patrick Mascaro of 108 Gilbob Street is requesting a conditional use permit to establish a multi-family residence of three, three-bedroom units in a Neighborhood Mixed Use Zoning District. The applicant is requesting a variance from City Code 5.2.2.A.iv which states that the primary entrance shall be both architecturally and functionally designed on the front façade of the building facing the primary public street. The applicant wishes to have the primary entrance into the building from the rear. The applicant also requests a variance from City Code 5.2.2.B.c which states that garage doors are not permitted on the front elevation of any multi-family dwelling. Mr. Mascaro wishes to have two garage bays on the façade. The applicant also requests a variance from 4.25.2.A which states that the minimum lot size for multiple family developments within the Neighborhood Residential zoning district is 3 acres. The applicant’s lot is .345 acres. The proposed location is at the corner of Walnut Avenue and 5th Street at tax parcels 3-2-104, 3-2-103, and 3-2-102. Pat Mascaro: The issue is having the front façade facing the main artery. The front is Walnut Avenue. This is on a hill. It is impossible to put a garage in the back because of the hill. You would have to come into the garage from the front. I am proposing the garage doors are on the front of the building. The front will look like a front with stone walls. There will be a front door that goes out onto a deck. The main entrance will actually be from the alley side of the building. Parking will be in the back and underneath in the garage. The garage doors will be facing Walnut Avenue. President Majic: Will the tenants be able to get in through the garage if they wanted too? Pat Mascaro: I am debating that. They may have to walk around the building or give them inside access. I don’t know if I want to take away the square footage from the apartments. The apartments will be nice size three bedroom apartments with plenty of parking to accommodate them. Gia Deasy: Are these garages for the actual units? Pat Mascaro: They can use them, yes. They will be able to walk around. Gia Deasy: Is the intention for having the garage is for the tenants. If they are living in that unit, that is their garage? Pat Mascaro: You will have a garage space. The garage is 4500 square feet. I’ll have other stuff in there too. I have an antique truck that I will probably park in there. Gia Deasy: So it is not necessarily the garage to the person living there? Pat Mascaro: No. They will have access. Page 2 of 19 Sandra Scaffidi: Pat, will you be renting out space in that garage? Pat Mascaro: No. Joe Manchin: So this might just be storage for you? The renters might be able to pull a car in, if you allow them that? Pat Mascaro: No. They will have access to the garage. Sandra Scaffidi: Just not interior access? Pat Mascaro: I am debating whether or not to put in steps. I want to apartments the have a mudroom. I want an area you walk into when you enter the apartment. Nobody else was there to speak for the request. President Majic: Anyone to speak against this request? Andrew Zicafoose: I live in the house that is directly adjacent to the parking lot. My house will be facing the garage doors. I believe anyone who has property has the right to do what they want on it, however, when you look at the 400 block of Walnut Avenue, you will see 17 buildings. Inside those buildings, you will find 50 rental units. There are only three homes owners on this block; I am one of them. My other neighbor couldn’t be here. Her husband had a stroke. This is the biggest problem on this street. I have heard landlords come in here before saying,’ we are going to clean this up. We are going to make this nice. We are going to make it so your Mother wants to move in it.’ I have not seen that delivered once. All of these rental properties are in different stages of dilapidation. There are so many horrible landlords on this street already. I don’t know what kind of landlord Pat [Mascaro] is going to be. But the past is a leading indicator of future outcomes, and that is where I stand on this. We already have 24 cars on this street and a brand new parking lot that is full. If somebody is using that garage, we are going to lose more parking along that part of the road. Parking is already at a premium on this street. It hurts me as a property owner to hear there is going to be nine new bedrooms on my street. We already have 50 other bedrooms on this street causing trouble. They don’t have any pride in their property whatsoever. Their dogs crap on the sidewalk. Nobody picks it up. People walk up and down the center of the street all the time. This horrible to talk about my street like this, but it is not going to get any better if we keep allowing more rental units to come into these properties and take away from the homeowners. I hate to sound like such a Negative Nancy, but if you go two blocks to the left, none of the houses are like this. All the houses are lived in by the homeowner and the properties are kept up. These new apartments are not going to do anything to help my property value go up. Thank you for your time. Pat Mascaro: I understand his concerns. First off, I have parking. I am spending $300,000.00 dollars to build this structure on Walnut Avenue. I am going to improve his property value, not take away for it. Gia Deasy: You will be providing off-street parking for your tenants? Pat Mascaro: Yes. I have upwards of thirty spaces. I have at least twelve spaces even without the garage. Sandra Scaffidi: He is required by code to have one space per bedroom. Pat Mascaro: I don’t have a problem with the houses to the right using my parking lot as well. If you want to beautify Walnut Avenue, it starts with these kinds of projects. It is better than it was ten years ago in some ways. Gia Deasy: I am concerned with the Walnut Avenue folks and it needs to be better. It doesn’t need to be substandard. It still needs to follow code. Is there no way for you to pull off your project and have the entrance be Walnut Avenue proper. I have a problem with the folks entering their home from that alley for safety reasons. My other problem is I Page 3 of 19 am not seeing how the building is going to look like a house front on Walnut Avenue with the garage doors. It is going to be lovely, but it is not going to something lovely enough to be on Gilbob or somewhere else if the front of it didn’t look like an entrance to a home. Additional discussion with Pat Mascaro, Andrew Zicafoose, and the Board Members continued. Board Member Deasy motioned to close the public hearing. Board Member Ragen seconded the motion. Motion carried 4-0. Sandra Scaffidi presented her staff report. Mr. Mascaro came into office a couple of weeks ago for a DRC and shared his plans with us. As long as the he follows the rules and regulations associated with the conditional use to establish a multi-family residence, I am in favor of Mr. Mascaro’s conditional use request. I am not in favor, however, of his variance requests. Mr. Mascaro’s variance request of 5.2.2.A.iv will adversely affect the public safety of the tenants accessing their entries from an alley location. This access will also negatively affect the property rights of the adjacent property holders due to the architectural characteristics of their neighborhood and the Watson-Fleming Historic District. The proposed design is not appropriate for that neighborhood. There are no special conditions that arise from this property. I also strongly recommend against allowing a variance from Code 5.2.2.B.c to allow garage doors on the façade of the building. This is expressly against our zoning code. It also appears that the garages would not be for the primary use of the tenants and may be considered a mixed use if they are rented out for a separate purpose. Mixed Uses are not allowed in this zoning district. Board Member Manchin: Is there an alternative or solution for Mr. Mascaro? Sandra Scaffidi: I recommend Mr. Mascaro hire an architect and go back to the drawing board and create something that utilizes the property and perhaps has an out-building for a garage. If it is not going to be used primarily by the tenants and their automobiles, I don’t see that it needs to be functioning on the facade of the building. If you go through the five questions that are in Section 8.9.7.b for the Planning Code, I don’t think we can answer affirmatively to each of these questions. Will it adversely affect the public health, safety, and welfare of the neighborhood? I believe it will. Board Member Manchin: Because the doors are facing an alley? Sandra Scaffidi: The entrance to the structure would be on the alley. Our Code states that you need to have the primary entrance to the building on the façade of the building. Board Member Manchin: So that would be either on Fifth or Walnut [Avenues]? Sandra Scaffidi: Right. As proposed, I do not see any access from the front of the building on Walnut Avenue to the interior of the building. There are no stairs. I know Mr. Mascaro said that nobody likes to walk upstairs, but you still need access to the front of the building from the main street. I also think there is a safety concern accessing the apartments from the alley. As for the architectural characteristics of the neighborhood, I don’t believe there are any special conditions or attributes which pertain to the property seeking the variance. While the property is sloped, like most of Fairmont, I think a creative engineer or architect could design a structure to maximize the use of the property. Would this eliminate an unnecessary hardship? I don’t think there is a hardship for the property. Will this allow the intent of the zoning ordinance to be observed and substantial justice done? No. I think it is expressly against the zoning codes. Page 4 of 19 Are these the minimum variances that would accomplish it? Yes. I am very much opposed to the façade of the building facing the alley. Board Member Manchin: Are there four lots there? Sandra Scaffidi: Yes. They will have to be merged before anything could be constructed on them. He can construct his apartments within the codes if we give him the variance for the lot size. I do recommend approval of the proposed variance from 4.25.2.A which requires a minimum lot size for multiple family developments within NR Zoning District to contain 3 acres. For the variance request from City Code 5.2.2.A.IV (which states that the primary entrance shall be both architecturally and functionally designed on the front façade of the building facing the primary public street). Board Member Deasy motioned to deny this request. Board Member Ragen seconded the motion. Board Member Manchin voted to approve this request. President Majic motioned to deny this request. Motion carried 3-1 to deny this request For the variance request from City Code 5.2.2.b.c (which states that garage doors are not permitted on the front elevation of any multi-family dwelling): Board Member Ragen motioned to decline this request. Board Member Deasy seconded the motion. Board Member Manchin motioned to approve this request. President Majic motioned to deny this request. Motion carried 3-1 to deny this request For variance request from City Code 4.25.2.a (which states that the minimum lot size for multiple family developments within the Neighborhood Residential zoning district is 3 acres): Board member Ragen motioned to approve this request. Board Member Manchin seconded this motion. Board Member Deasy motioned to decline this request. President Majic motioned to approve this request. Motion carried 3-1 to approve this request. For the request for a conditional permit from City Code 5.7.3: Board Member Ragen motioned to approve this request. Board Member Manchin seconded the motion. Board Member Deasy motioned to deny this request. President Majic motioned to approve this request. Motion carried 3-1 to approve the conditional use. 3. ***Tabled Item*** Laura J. Davison of 608 Maryland Avenue is requesting the following variances: From City Code Section 5.7.1 Encroachments which allows open decks and patios to encroach upon the rear yard setback five feet. The applicant wishes to allow the encroachment of a deck to zero feet of the rear setback; from City Code Section 5.7.3 Encroachments to allow a ramp to be constructed within the side yard setback within three feet of the lot line. The applicant wishes to place a raised deck around an existing pool in the rear yard as well as a handicap ramp in the side yard. The zone is General Residential and is identified as tax parcel 5-5-164. President Majic requested a motion to take this item off the table. Board Member Ragen motioned to take this item off of the table. Board member Deasy seconded that motion. Page 5 of 19 Motion carried 4-0. Laura Davison described what she was requesting and why. The drawing she brought in tonight added steps under the temporary ramp they would like to install. There was nobody else to speak for or against this request. Sandra Scaffidi: I recommend that we deal with the original application. Mrs. Davison had sent the new information on Friday, but because we had tabled the original application, we need to make a decision based on the original application. The neighbors have not received proper notification that we would be discussing a new request for stairs instead of a ramp. We have to give them a notification in case they want to speak for or against the request. I recommend we still consider the original request for a ramp and zero lot line setback for the deck. We need to vote on them separately. Board Member Manchin motioned to close the public hearing. Board Member Ragen seconded the motion. Motion carried 4-0 Sandra Scaffidi: My statement remains the same as it did last week. Unfortunately, I do not believe that the deck should extend to the lot line. I also suggested a one foot variance to allow a wheelchair ramp to access the back deck. I also want to make clear that in speaking with our Building Inspector, the ADA does not provide regulations for private property. If the owner was trying to make her home handicap accessible, it would be a good idea to follow the instructions; however, they are just guidelines for private property. Drawings from a contractor or an architect would have been helpful in designing a deck that would meet the needs of the homeowners as well as meeting our ordinance. Unfortunately I do not believe that this application meets the intent of Section 8.9.7.B of the Planning and Zoning Code. There are no special conditions that pertain to this property and this would not eliminate a true hard ship. Board Members discussed the request. For the variance request from City Code Section 5.7.1: Board Member Ragen motioned to deny this request. Board Member Deasy seconded that motion. Board Member Manchin motioned to approve the request. President Majic motioned to deny this request. Motion carried 3-1 to deny the variance request. For the variance request from City Code Section 5.7.3: Board Member Ragen approves this request. Board Member Manchin seconds the motion. Board Member Deasy approves. President Majic approves. Motion carried 4-0 to approve this request. 4. ***Postponed from previous month*** A&S Consulting Firm, LLC, (G. Patrick Stanton, Jr. Member/Applicant) is requesting an appeal hearing regarding the loss of a non-conforming use to operate a parking lot at the corner of Adams Street and Monroe Street. The property is located in the City Center Zoning District and is identified at 3-1-95 and 3-1-94. President Majic: Is there anyone here to speak in favor of this request? Page 6 of 19 Thomas Lawson, Attorney, representing A& S, LLC: I am an attorney here on the behalf of A&S Consulting and also Hallwood A& S Consultant is the applicant, which has applied to continue the use of the parking lot. Hallwood, LLC is the owner of the property. This is a little different from what you all have heard tonight. This is an appeal. The City has made a determination that the parking lot, which is at the corner of Adams and Monroe Streets, is not a parking lot. So we are here to appeal that determination. We do have some folks that will come up to testify, but what I intent do is to give you all a summary (inaudible moment). I have an affidavit. Nick Fantasia is one of our witnesses. He is broadcasting a football game right now (Mr. Lawson handed the affidavit to President Majic). (Inaudible beginning)This parking lot has been owned by the Hardesty family for over one hundred years. It goes back to the 1890’s. There were some buildings on it at one time, but it has been used as a parking lot from that time until the present. As we drove by it today, there are some thirty cars parked on it. There must be something going on at the library. Certainly, subsequent and this all predates any zoning ordinances when you go back to the 1800s. We understand that there have been zoning ordinances that have been passed along the way and restrictions placed on properties, but the key to this case is we clearly have a use that has been going on from that time period to the present. As we understand it, the City has asserted that we have abandoned our use of that property. They have cited a couple of things. One is that there was no business license that was in effect for the past year. Later, you will hear that they tried to get a business license and were told they could not do that. Also, there is a Home Rule stature that you are going to hear about. It raises a rebuttal presumption of abandonment. I think we are going to more than submit that presumption has been rebutted. Abandonment is a term that I don’t know that it needs much explanation. It is what you would think; that someone has given up that use. They have not used it as a parking lot for more than a year. Again, our evidence is that it has been in continuously used. You will hear from a member of the Hardesty family who is now a little over sixty years old. He will talk about his memory from that time to the present. Certainly, that predates the ordinance. But, in my opinion of the package, which is really kind of curious to us, is that in line one, our witness, by way of correspondence, is the City of Fairmont. The City of Fairmont actually approached our owners starting in 16 (2016) and running through the first quarter of this year to try and either lease or purchase this property to use it as a parking lot. Some of the best evidence we have of that continuous use is the City’s own actions. That broke down. That negotiation didn’t pan out, but that doesn’t cause us to abandon it. Again, that property is still being used to this day. You are going to hear from Elizabeth Kennedy; who is just one of the individuals who has paid for the privilege to park in the lot. She has paid as recently as of April, calendar year 2017; certainly well within the year. You are going to hear from Pat Stanton and Aron Ashley; who will talk about the fact that they have known this to be operated as a parking lot. They approached the owners to continue to operate it as a parking lot. That they did operate it as a parking lot for a time; when they were first stopped on the license issue. When they then applied for the license, they were told that you can’t get a license because that use has been abandoned. Which, again, did not work with their understanding of how that property had been used and what they intended to keep using it. Mr. Fantasia, an affidavit, and I’ll present that to you, he will also tell you, and of course you all know him, he is the former Mayor, that as long as he can remember, it has been in continuous operations as a parking lot, but his particular issue that he would raise, is that he had been contacted by the City as an unofficial representative of the owners with code violations. That the City in fact, passed these onto Nick to pass on to the owners that in fact, there were code violations. The surface needed to be repaired. There were potholes in it; the surface of what; the surface of the parking lot. There is, in fact, an attendant building on the property. I am sure you all have seen it. One of the windows was broken and the owner needed to fix that. Again, it is the parking lot attendant building. So the City, through these violations, is confirming that they know that the property is being used as a parking lot. The owner needs to do somethings to continue to keep it up so it can continue to be used as a parking lot. What is missing, or course, is no notices that you can’t continue to use it, and so on. Those things were fixed by the way; the parking surface. We drove around it today. It is very smooth. They have kept it up and all the glass is intact. So once again, the City ironically becomes our witness. They have raised, as I understand it, the new Home Rule Ordinance which does give the City of Fairmont some special powers, if you will, over the Code, but all it does is it raises a rebuttal presumption that any use not in compliance with the zoning ordinance that has been abandoned for at least a year. It has not been abandoned. The use is there. You can drive on your way out and see that there are cars that are parked there. They also raised as an issue that the lack of a license is again a presumption. I would suggest to you that a lack of a license is something that is dealt with all the time. Sometimes people pay a fine and things like that to reinstate their license, but that doesn’t mean that they lost their use. This is an important thing. Page 7 of 19 It goes to our core. The one gentleman said, “I respect everybody ability to do what they want on their property.” This is a use that has been used and enjoyed on this property continuously, openly, and notoriously since the 1890s to the present. The fact that, subsequently, an acted ordinance was passed doesn’t mean it gets wiped away. It only gets wiped away is if you let it go; you don’t maintain it, you don’t continue to enjoy that use for more than a year. There is no evidence of that. Thank you all for your time and hearing us, but what we are asking you to do is rule by, notwithstanding what the City has done and said, but in fact the parking lot that is at that corner is indeed a parking lot and the owner can continue to use and enjoy that. I have the original affidavit from Nick. Can I give you that, Mr. President? President Majic: Absolutely. Thanks a lot. Thomas Lawson: In no particular order. I call Ms. Kennedy to testify. President Majic: Before we have our next speaker, I am going to have Maria [Cipolla] read this to the Board. Maria Cipolla read Nick Fantasia’s affidavit. It stated: Affidavit of Nick L. Fantasia Personally appeared before me, the undersigned Notary Public, Nick L. Fantasia, who, after first being duly sworn, deposes and states: 1. I am Nick L. Fantasia. I am over eighteen (18) years of age. 2. I am a lifelong resident and former Mayor of the City of Fairmont, West Virginia (the “City”). For as long as I can remember and before the passage of any City ordinance the property owned by Hallwood, LLC which is located at the corner of Adams and Monroe Streets has been used as parking lot and that parking lot’s use has been continuous. 3. Over a time period of many years up to the present, I am aware of complaints files with the City by people who used the parking lot on a regular basis that the parking lot was in disrepair (i.e. pot holes) and required maintenance as a result of continuous use as a parking lot. As a result of these complaints, the City issued Code Notices to the owners of the parking lot advising them that they needed to properly maintain the parking lot. Implicit, if not outright stated, in these notices is the fact the City knows of, acknowledges and allows the continuous use of this property as a parking lot. The Affiant sayeth further not Subscribed and sworn to before me, a notary Public, and this 7th day of September, 2017. It is notarized. I cannot read the signature. Their notary is active. President Majic: If there anybody else to speak for this request, you may. Please state your name and address for the Board. Elizabeth Kennedy: My name is Elizabeth Kennedy. I am going to give you my work address. I work at 110 Adams Street, Fairmont, West Virginia 26554. I am guess here, more or less …. (Mr. Lawson interrupted her). Thomas Lawson: If I can help. (Directly asking Ms. Kennedy) Do you park in that lot? Elizabeth Kennedy: Yes, sir. Thomas Lawson: And did you pay to park in that lot? Page 8 of 19 Elizabeth Kennedy: Yes, sir. Thomas Lawson: And did you pay through April 2017? Elizabeth Kennedy: Around there. It was about the last time our company paid for it, yes. Thomas Lawson: Have you been there the last couple of years? Elizabeth Kennedy: In September of this year, it will be two years that I have been at the Chamber office working in there. Thomas Lawson: You have been using that lot on a five day a week basis? Elizabeth Kennedy: Correct. My government car sits there or at least it did. It did. Thomas Lawson: inaudible Elizabeth Kennedy: Yes. The price changed and the government refused to pay that much. Yes, the government was paying my contract, through Department of Labor, was paying an ongoing monthly amount to the company that owned the property. My government vehicle was allowed to sit there 7 days a week, 24 hours a day, whenever I was not using it. President Majic: Any questions for her? Thank you. There were none. Pat Stanton: I live at 141 Fox Hill Lane here in Fairmont. I am a member of the LLC of A&S Consultant Firm, LLC. If I may approach, Mr. Chairman. I have pictures here which were taken of the lot today at about one o’clock. President Majic: I will gladly to take these and pass them around, but can you explain them at the podium? Pat Stanton: Yes I will. President Majic: Thank you sir. Pat Stanton: Those photographs were taken today right around one o’clock. You will note it is a parking lot. We became interested, the A&S firm, became interested in this lot probably last summer around July or August sometime. It came to our attention that we were paying about $300.00 a month or more in parking when we considered the fees at the meter. Plus that wouldn’t be too terribly bad, but we got parking tickets on a regular basis. The parking enforcement people being very efficient seemed to nail us every ten or fifteen minutes that we ran over. If we were busy and not get back out on time, we would end up with a pot full of tickets. We were looking for a solution to our parking problem. The lot that is in question here, was a possibility, but I personally got into the office usually a little late in the morning and that lot was full most of the time and it was attended. Because of that lack of attendant, it simply was not a good place to park. So we started looking at getting it. It was obvious that nobody was taking care of it. We found out that the attendant that had been there had had a stroke. That was the reason no one was there. We began looking for the owner. About October, I attempted to contact Hallwood. I was informed, by Lou Spatafore that he had previously looked in to the matter, but that Hallwood was negotiating with the City; for the City to take over it and lease it as a parking lot. Nothing happened with the lot. It was obvious. If I remember correctly, it was either late December/early January when we attempted to contact Hallwood again. We found out they were still negotiating with the City at that time; and then again in the spring. I really don’t remember exactly when. It was sometime in the spring. We tried again and we got a response, if I recall correctly. And then, Nick Fantasia, who is a good friend of the owning member of Hallwood, called and said that he may be interested in talking with us. We did talk with Nick. Through him, Page 9 of 19 we got in touch with Mr. Hardesty, who is the managing member of Hallwood and began negotiations. It was obvious to us that he intended it to be a parking lot. He negotiated a little previously to continue it as a parking lot. He was negotiating with the City for it to continue to be a parking lot and he was happy to talk to us about continuing it to be a parking lot. So we negotiated a lease. The lease was signed late May to be effective June 1st. I will let Mr. Ashley speak to the licensing process that we went through, because he handled most of that. We got some varying responses to our applications; which again he will speak too. We finally ended up with the determination from the City that we were not entitled to a lease because it was a non-conforming use. I looked into the State statute and it became apparent that in order that to be a non-conforming use, Mr. Hallwood would have had to abandoned it as a parking lot. It is obvious to anybody who drove by there every day; he hadn’t abandoned it as a use as a parking lot. It was a parking lot. For that reason we filed this appeal and that is the reason we are here today. President Majic: Thank you. Please state your name and address. Please sign the book. Aaron Ashley: My address is 22 Freeland Street here is Fairmont. I am the junior member of A&S Consulting Firm located at 214 Adams Street. As you already heard from our attorney, Mr. Lawson, A&S Consulting Firm approached the City before Memorial Day of this year in regards to operating the parking lot located on the corner of Adams and Monroe Streets; the same parking lot that is listing with the State Historic Preservation Office as a contributing factor to the Historic Downtown area of Fairmont. We were told in our first letter, I may terming it wrong, but in our first letter of denial three things were accused that it was not to be used as a parking lot. The letter is dated of January 2, 2017. Number one point is that utilities are disconnected. It is a gravel lot. There are no utilities. There is no water. There is no sewage. There is no gas. There is no electric. It is a barren gravel lot. Number two, the building and grounds have fallen into disrepair. At the time of June 2, 2017, Mr. Stanton and I had a contractor walk the property. They didn’t find anything in disrepair. It is my understanding that those repairs were probably done by Mr. Hardesty’s crew prior to all this. And the third point, which has been said already, that there was no valid business license. That is had expired. I have no idea what they did before us. We are looking to use a parking lot. One of my questions would be, ‘If you are using it as a parking lot and you are not charging, do you need a business license?’ My next question would be, ‘If they were using it as a parking lot, which it appears they might have been; there are still cars in it today, and somebody was paying, was it an error on Hallwood, LLC’s part for simply not renewing out a $15.00 form and were they properly notified of renewing that. The parking lot we received on June 22, 2017, we received a sub sequential second letter from Sandra [Scaffidi], the four points of problem in some degree changed. There was no longer, the utilities had been disconnected. There was no longer, the building had fallen in disrepair. It now states the date the use was established. When did it become a parking lot? To the best of my knowledge, the last buildings standing were in the 50s and it was a parking lot ever since. Mr. Hardesty can testify to that. The second point was to provide evidence of continuous use. I believe we have done that this evening. The third point was to provide receipts of evidence of a valid City business license. That raises my question again. If you are not charging, do you need a license? The fourth point was other such documentation in which to submit for consideration to the Planning Director. We have a business in Downtown. I believe under the negotiation with the City to use it as a parking lot, it showed that there would be 21 years before the debt surface would make a profit. Mr. Stanton and I’s numbers aren’t much better. We are not looking to make a profit. We are looking to have available parking; usable parking that is convenient. I hope the Board takes into consideration that the non-conforming use was ever lost. Thank you. President Majic: Thank you. Any questions? John D. Hardesty, Jr: I live at 102 Tutila Dr., Lake Fredrick, VA. Mr. Chairman and Commissioners, my name is John D. Hardesty, Jr. I am the manager and member of Hallwood, LLC family owned. In the 1970’s we began lease our property as a parking lot and that is what it has been every day since. (Audio is inaudible. Mr. Hardesty speaks very low). In the 1960s, my grandfather (inaudible again). In the 1970s, the last building was taken down. The department store used it as a parking lot and after that it has been operated as a parking lot. President Majic: So Mr. Hardesty, you are just leasing it to Mr. Stanton. Page 10 of 19 John D. Hardesty, Jr: Yes, sir. (Inaudible) President Majic: In what year did you guys get involved in that parking lot? How long has it been in the family? John D. Hardesty, Jr: Since the 1890s. President Majic: Wow! I would say that was before zoning codes. John D. Hardesty, Jr: inaudible response. President Majic: Are you here to speak for the request, sir? Gene Kisner: Yes. President Majic: Please state your name and address for the record and please sign in. Gene Kisner: I live at 1599 Clifton Road which none of you even know that section of town by its old name, Minersville. If you want to make it sound fancy, you call it Green Gables. I was a member of this Board for many years so I do know how it goes. I also know how it is supposed to go. As I look around, I do believe there is only one person in this room older than me. Since he grew up in Elkins, I probably have a little better memory of some of the things of Downtown Fairmont than him. I am extremely familiar with Fairmont; its history, its standard, its values, and its needs. I well remember this particular location as several store fronts in my youth; a drug store and on the back edge of the property, you won’t believe this, it was a Maytag washing machine dealer. They sold gasoline operated washing machines. So yes, I have been around, I have seen it, and I know how it was used. It was used as store fronts up through the late 50s and early 60s. I am pulling this out of memory right now, but I could go back and produce pictures that would confirm. Within a year, it became a parking lot and has been used as such ever since. Now folks, there’s almost no businesses left in Fairmont, especially Downtown, o.k. Therefore, if someone wants to operate this location as a business, why would you deny them that opportunity? Make no mistake about it, the old Fairmont will never return; it ain’t gonna happen. Anyone who thinks any part of Fairmont will ever emulate the thriving, building, expanding, cities located in other states is living in a dream bubble. That bubble is going to burst. The future plans for this area do not align with the Carolinas or Georgia; this if Fairmont, West Virginia. We have to face reality. Any business that is going to try and operate here, you better give them the chance. You better encourage anyone who wants propose a business that will produce jobs, income, and taxes. If you do not approve this property as a parking lot, just exactly what is your intent for this property? Any answers? Does the City government think they can grab up this property for its own use? Please explain what revenue producing entity you see locating there, if not this parking lot? President Majic: Keep in mind sir; we are a Board of volunteers. We are here to focus on the codes and laws. Gene Kisner: I was on that Board. If the City thinks it is going to be a green space, please explain. Any when I say ‘please explain,’ I’m not putting on your shoulders; I’m passing this onto the City. Please explain how this would benefit the people of Fairmont; a green space over something that will produce an income. Please, let’s face reality. Let them operate as a parking lot even if it is in competition with the City’s parking authority. President Majic: Thank you. Thomas Lawson: I’m a lawyer. I feel compelled to say something else. I apologize. I appreciate your time. The key issue here is the Code and it (inaudible) presumption. I think what we presented is through this testimony is unrebutted testimony of a continuous use of a parking lot. There may be a back story and reasons why the position has been taken by the City, but just forcing on that rebuttal presumption, we submitted that it has been more than rebutted. We would appreciate you all determining that the parking lot that is at that corner, is in fact a parking lot. We appreciate all your time this evening. Page 11 of 19 President Majic: Mr. Lawson, I noticed that your office is in Winchester, VA. Are you eligible to practice here in West Virginia? Thomas Lawson: Yes. Thank you. I am actually licensed in West Virginia and Virginia. Where we are is about twenty miles from Martinsburg. Actually, the closest federal court house is in West Virginia. So, we are probably more in West Virginia then we are in Virginia. We are in the very tip of Virginia. We are surrounded by West Virginia. I have been licensed in Virginia for 30 years; in West Virginia, I believe it is 25 [years]. Thank you for asking. President Majic: Thank you for answering. At this time, is there anyone else here to speak for this request? (There were none) I will than ask if there is anyone to speak against the request? Kevin Sansalone: I’m not really against it. I’m just going to state the facts. My name is Kevin Sansalone and I am the attorney for the City of Fairmont. I think what is particularly relevant to this situation is a timeline. They talked about a timeline that all occurred before June 30, 2015. What is relevant to the Code and what is relevant to the facts of this particular situation is the timeline that occurred after June 30, 2015. The City’s records reflect that there has been a business license at this location for purposes of the operation of a parking lot as a business since 2011. The business license was issued to an individual named Tom Brock doing business as Uptown Parking. Uptown Parking filed a B&O tax return and paid Business and Occupation tax based on the income generated from the parking lot. In addition to Mr. Brock paying Business and Occupation taxes based on revenues generated from the parking lot, Hallwood, LLC also filed a Business and Occupation tax return. They filed that through West Banco Trust Department, P.O. Box 1152. For calendar tax year 2015, they filed a tax return and indicated that they had $8,800 dollars which was generated from the parking at the corner of Adams and Monroe Streets. They reported it as rent, because they were in fact, renting the parking lot to Uptown Parking, who was operating the parking as a business. The last year that Hallwood, LLC filed a Business & Occupation Tax return, which I believe was part of the documents that were supplied as part of Sandra’s [Scaffidi] staff report, show that from beginning of January 1, 2016 through December 31, 2016, zero rents and royalties were recorded as being generated from the parking lot at Monroe and Adams [Streets]. Just to point out, if Ms. Kennedy’s businesses were paying parking to Hallwood, LLC on her behalf, then none of that income was ever reported and it wasn’t properly addressed to the City or reported. So, I would say that her testimony is somewhat flawed. If in fact they were paying Hallwood, then Hallwood should have reported the income. They did not do that. So that is a timeline. Uptown parking had a business license all the way through June 30, 2015; which is at this point two years and two months. After June 30, 2015, that business license expired. No one approached the City to have the business license renewed. There was no renewal of the business license until Mr. Stanton and Mr. Ashley approached the City in May of 2017. So you have business a use that had been established for multiple years that was abandoned as of June 30th. If you look at Code, the Code that Mr. Lawson cited, one of the criteria for purposes of determining whether a business use has been abandoned is that there is a lack of a business license. So clearly in this particular instance, there had been and there had been a time when there was a business license when Hallwood LLC paid B&O tax based on rents and royalties. Of that business, Uptown Parking paid B&O taxes on that business and that business license lapsed. There was no further income generated from the parking lot. Hallwood, LLC ceased to pay B&O taxes on it. Clearly, the criteria that is under the Code that says there is no business license has been satisfied in this instance. The presumption has not been rebutted. In fact, the facts establish that the business license had ceased. President Majic: Since June 30, 2015? Kevin Sansalone: Since 2015. Mr. Stanton didn’t come into the City until May 31, 2017. So there was a period of time of approximately two years that there was no business license. Particularly relevant is that during that same period of time, Hallwood, LLC paid zero B&O tax and, in fact, the reporting document is part of your packet; they reported zero income. So the first year of that approximate two years, they reported zero income. The second year, they didn’t report any income and they didn’t even file the tax return. The year prior to 2016, when the last business license was issued, they reported $8,800.00 of rents & royalties generated from the parking lot. Those facts are particularly relevant in establishing the fact that the business license had expired and no license had issued within the requested period of time Page 12 of 19 immediately prior for purposes determining abandonment. Second factor that would just like to point out because Mr. Lawson raised the issue, the City attempted to negotiate with the Hardesty family for either the use of the lot or the purchase of the lot or control of the lot. I am not denying that. It is a true fact. However, the first communication with Mr. Hardesty and the Hardesty family occurred July 24, 2015. The first communication occurred after the Uptown Parking business license had expired. The lot had fallen into disrepair. There were potholes in the lot. Windows were broken. By their own admission, code notices were issued to the property. If you look at the relevant Code, one of the other points that is of particular importance for purposes of determining abandonment is whether the property has fallen into disrepair and whether Code notices had been issued. Based on their own admissions and Mr. Lawson’s statement, Mr. Stanton’s statements and Mr. Ashley’s statements that criteria is also satisfied. So now we have two of the three criteria that are outlined in the Code as being satisfied in this particular instinct to establish that the business use as a parking lot has been abandoned. Again, just back to the negotiation point, we attempted to negotiate from July 24, 2015. The last communication we had with them was October 16, 2015. All the dates of all the communications that occurred between the City and the Hardesty family occurred after the expiration of the last business license, which was June 30, 2015. Just as a point of law, Mr. Fantasia’s affidavit is hearsay; he is not here; he doesn’t present himself for purposes of cross examination. I know Mr. Fantasia. Mr. Fantasia is younger than I am and I wasn’t alive in the fifties. I don’t think Mr. Fantasia was alive in the fifties. So any representation that he made in his affidavit that he knows what went on in the 1950s is far from the truth. In fact, the entirety affidavit is here say since no one can ask him questions or make a determination to the validity or falsity of any of his statements that he has asserted in his affidavit. I also challenge Hallwood, LLC or Mr. Hardesty to present to this Commission whether he or his LLC ever had a business license to operate a parking lot at the intersection of Adams and Monroe Streets. I don’t believe they did. I think all of the business licenses that had ever been issued for the purpose of the operation of that parking lot had been issued to Tom Brock of Uptown Parking, LLC. He has not had one; He has never had one; does not have one; has not had one in the last year, As far as its use as a parking lot, yes, it may have been used and may still be used as a parking lot, but not a business use. To equate a use with a business use is like comparing apples to oranges. It would be our position that he doesn’t satisfy the requirements of Code. In order to reestablish the business use, he has to comply with the Code. He hasn’t done that. The denial of the application for the business license was correct in this instance and the Board should affirm the same. If you have any questions, I will be glad to try and answer them for you. President Majic: Thank you. Board Member Manchin: The only question I have to the City is, ‘why is the City so against letting people continue to run it as a parking lot?’ I was born in 72 and that is all I have known it to be is a parking lot. I know the City has a new parking garage. I don’t understand the hostility of why. Kevin Sansalone: It is not a question of hostility. It is not a question of not wanting them to operate a business. It is wanting them to comply with the Zoning Code and the other Codes that the City has established. I understand what Mr. Kisner is saying, but there is no reason that we shouldn’t try to be the best that we can be. Although, at this point in time, we aren’t South Carolina; we aren’t Georgia, and we aren’t Alexandria, Virginia, but there is no reason that we should continue to be something less than we can be. The purpose of the Code is as non-conforming uses cease those uses to come in compliance with the Code so that at some point in time we can improve our appearances and we can come in and improve our quality of life, and we can improve our community. For example, you take a look at the buildings that were prior to the 2006 code, contrary to what Sandra [Scaffidi}said early, this particular code was enacted in 2006. The only thing that happened in 2015 was the format of the code was changed. The format was changed from regular paper code to Clearzoning for purposes of facilitating its use and makes it easier for people to use. If you look at properties that were constructed prior to 2006 and ones that have been constructed subsequent to 2006, you will see a significant improvement both in materials, landscaping, aesthetics, and street scaping. Just look at Fairmont Avenue. Take the new Sheetz for example, that everyone insisted was not coming to Fairmont; there is landscaping, there are street trees. There is no reason we have to settle for something less can we can be. We should try to be the best that we can be and not just settle for anything. It is not adversity to business. It is not adversity to Hardesty Family. It is not adversity to operating a parking lot at that location. It is compliance with the Code. Page 13 of 19 Board Member Manchin: I get that. You are saying the best we can be. I get that too. I don’t know where a gravel parking lot makes us any less of a society. Kevin Sansalone: I am not saying they can’t operate a business. Board Member Manchin: If you had a Marriott signed on right now, I would totally get it; eminent domain. This is better for the City. We have this big hotel coming in, but better use it is a green space and two parking lots. I don’t see what the… I just don’t understand. Kevin Sansalone: The United States Supreme Court of Appeals has ruled in the Council case that we are not permitted to take private property and use it for a public project by eminent domain. That has been ruled on. The West Virginia Legislature has also enacted (interrupted). Board Member Manchin: Then why is the City against this parking lot? Kevin Sansalone: It is not a question about being against the parking lot. It is a question of compliance with the Code. Board Member Manchin: Oh my God, o.k. It is a gravel parking lot. I have nothing further. I have nothing further. Sandra Scaffidi: I just wanted to add, before we continue, that a statement Mr. Ashley made about the parking lot being a contributing element to the Historic District, I would like to see that evidence, because I believe that it is not contributing to the Historic District. I actually pulled up a map of the City and I check the National Register Nomination. It is not listed on there. Aaron Ashley: It is not listed as a national registered monument. That is correct. It is listed as a contributing factor to the Historic District. Sandra Scaffidi: It is not. I have been in Historic Preservation for 20 years. I can’t imagine a parking lot ever being a contributing element to a (our) Historic District. I just wanted to put that out there. I doubled checked. We can include that in the proceedings, but I just want to touch on that. Tom Lawson: May I, Mr. President? Aron Majic: Absolutely. Tom Lawson: I think we were challenged to respond to something. First, on the tax issue and all these arguments by the City are curious to me. Somebody said something about people who protest too much, but suggesting that because a tax record or a tax filing was not filed by an operator; there may be an action, tax action against the operator, which was what? Uptown. Hallwood pays its taxes and has. We didn’t know we needed to produce tax records, but we will be happy to do so. But, what we are hearing from the City, and now we are hearing from the City Council, talking about taking and so on, would suggest that is exactly what is going on here. The City wanted to acquire this property. They wanted to acquire it and he is saying in 2015, and all the correspondences that I gave you is actually 15, 16, and goes into 17, they were trying to acquire this as a parking lot. They wanted that use. So they are acknowledging that. I think what is attempting is to disable this property somehow so they can acquire at some advantage to them. But, what Council said, I think the operative language is and they can’t get away from, is there are rebuttal presumptions. This talk about a license; he said a license is an indicator; it is not a dispositive. A license does not equal a use. The use is it’s a parking lot. Common sense allows you to ‘what is a parking lot?’ It’s a bank that cars sit on. If you go there tonight, you will see cars on it. If you go there tomorrow, you will see cars on it. So the license argument does not take away the fact that is a parking lot. Again, on these other issues, I would suggest to you; we have heard more than frankly then I thought I would hear from the City that how strongly they want to prevail on this. The bottom line is, it has been a continuously operated lot. Ms. Kennedy is telling you that her company was paying for rent up until April of this year. Page 14 of 19 There can be only one conclusion and that it is a parking lot. It is a preexisting, non-conforming use as a parking lot and will continue as such until for at least a year that bank has been abandoned. This owner has told you his family has no intention of abandoning it and they have not. I appreciate your indulgence and your time this evening. President Majic: Thank you. Would anyone else like to step up to the podium at this time? Robin Gomez, Fairmont City Manager: We are not opposed to any business opening in Fairmont within the City. I have been here since December 7, 2015. We welcome any and all businesses. That being said, we have laws; we have rules; we have a Code that just about every other City, every other local government, every state government, and most federal government have. We either follow those laws or we change them. We have to go through a process to change those laws. That is not what is before the Board of Zoning Appeals this evening. Should we change some of those codes, I agree. Some of them do need to be changed. We are working through that process as we conclude updating the City’s Comprehensive Plan, but we do have laws that have to be followed. I would to have it as a business. It is not the best and highest use of that, I agree; it’s not, but it is a use. Again, we are not getting hundreds of businesses and other investors knocking on our door. We are grateful and appreciative for every single one that is doing that. However, we have the Code and the laws we have to follow. Otherwise, let’s just get rid of them and not have to follow any of them. That is what before the Board this evening. I am curious about the negotiations with the City, because that means there have been…It has been stated tonight by Mr. Lawson that negotiations went into 2017. I am not aware that they did. I had a telephone conference call with a representative of the Hardesty group or family of February 2016 shortly after I became the City Manager. That is the last that I recall. City staff could have others, but there have been no serious or other attempts to purchase or anything as long as I have been the City Manager since that time. So shame on me for not knowing there were negotiations, if they were going on, but that is the last that I had. We did not have a Planning and Development Director or a City Planner for some time in mid-January 2016 until Ms. Scaffidi was hired in April of 2016. To my knowledge, there were not any discussions with the Hardesty Group to require that lot. We would prefer to have a better use for it that is true. I will be completely candid with you; a parking lot works, but it does not work because the Code does not allow it. That is what is before you. It is not my decision to make. I thank the Board for everything they do as volunteers as President Majic stated. So I appreciate that, but again, these things need to be clarified and explained correctly and truthfully and factually. Our business license process, as every business license in the City of Fairmont is mailed a renewal. So, it was mailed to Uptown and they did nothing with it or whatever else happened, but it is the business owner’s responsibility to pay that every year; nobody gets a free pass. That is what is in the Code. Thank you for your time and attention. Board Member Manchin: May I ask you a question? Robin Gomez: Yes, sir. Board Member Manchin: While, and obviously you have no bias towards this one way or the other, I totally get that, I totally get that; my question is have any City employees used that parking lot since it was in, what you would say? Robin Gomez: You mean to park their personal and/or City vehicle? Board Member Manchin: I would say anything; anything that would have to do with the City, were there parking spaces that were leased from this parking lot during the time that it was out of favor? Robin Gomez: Not to my knowledge. Board Member Manchin: I don’t know. I’m just asking. Robin Gomez: No. My answer is no, because we have our own parking lot. We are not opposed to competition for the parking lot authority. I’m fine. We had a work session of April of 2016 regarding parking in the City and where we discussed a variety…. However, our Code is limiting where parking can be in Downtown. One of those reasons why it is Page 15 of 19 limiting is so somebody won’t tear down a building or building and just put up a parking lot. Parking is an accessory use for an existing business. That is how it is. People will state the opposite of it; ‘well how can the City exempt itself from its own Code?’ Well, any city can and cities do that. I am not advocating that the City of Fairmont do that, but that can happen. That is not what’s happening in this case. We have not rented any space or utilized that for any City parking. The only parking that I am aware of that I have expressed is when the Family Resource Network asked, shortly after I began in early 2016, about having movies broadcasted in the green space between the referenced parking lot and the Huntington Bank, on their wall. They held four of those last summer, one was rained out. They didn’t hold any this summer because of the rain. It is held the third Friday of the summer months. I did mention in an interview that people can park on any City street, any meter, and it is free parking; and by the way there is also a gravel parking lot for parking, but after hours when it is not open for regular business just like any City meter or the City parking lot. They are available for free after the normal business hours. Board Member Manchin: This can be just a general question to the City. Has the property ever been for sale to the City? Has there been an asking price by your estate and a counter price by the City? Has that ever come into negotiation ever? Have you ever contemplated selling this property or has it just been that you contend it is a parking lot, it has always been a parking lot; it was stay a parking lot? (Inaudible initial response). Mr. Lawson was not initially at the microphone when he responded at first. Tom Lawson: In those negotiations, there were offers to both lease it and buy it. Board Member Manchin: And you wanted to lease it for what reason? Tom Lawson: As a parking lot. In those discussions, and actually in the correspondences that I attached, one of those scenarios was they were going to lease it and my concern, and forgive me, but there was a City Manager on one of the conference calls, was if the City going to lease it, they wanted to do some work to it. I had concerns about me losing the non-conforming use because of course if you submit site plans and so on, you are going to be submitting to the new ordinances and we didn’t want to do that. They acknowledged that in that discussion and I was a party to that discussion. We confirmed that in writing that anything we did, we didn’t want to lose that. Then there was discussions of the City just purchase it. There have been offers back and forth. When those discussions broke down, and could be just a coincidence, I believe the last email was with Nick Fantasia about having discussions as late as February 2017 that those discussions broke down, we didn’t get anywhere, and shortly thereafter, suddenly we got an issue with our parking lot. It could be a coincidence. It could that somebody else was coming on board. I don’t know, but in my mind, this doesn’t have to be contentious. The issue is a simple one. Is it a parking lot? Has it been continuously used as such? Everyone agrees it is. Even the City Attorney agrees it is. I appreciate his candor. We just ask that you all affirm the same. Thank you. President Majic: Thank you. Kevin Sansalone: I would like to address one thing; the negotiations with Mr. Lawson. I couldn’t resist. President Majic: You guys are getting your steps in tonight. Kevin Sansalone: The negotiations with Mr. Lawson mainly took place in 2015. There was one discussion on January 26, 2016. At the time of the discussions with Mr. Lawson, one year had not lapsed from June 30, 2015, so the discussions concerning the non-conforming use, at that time, were relevant. They are no longer relevant. More than one year has now lapsed since June 30, 2015 with no further renewal of the business license. So his comments concerning the relevance of the non-conforming use don’t have any bearing on the Commission’s decision. Pat Stanton: May I clarify a couple of things? As to the tax consideration, as far as Hallwood was concerned, the money he was getting was direct deposit from the federal government and it was direct deposit to the lessee of that property. Page 16 of 19 That money was then taken by the lessee and sent to an agency, I believe at the Wes Banco and deposited to Mr. Hallwood. When the previous lessee had a stroke, that money stopped going from him to Hallwood. So Hallwood had no B&O Tax income during that period of time. And if I say I suspect that the reason the previous land lessee did not handle those taxes, did not transfer the money, was because his physical condition. Just one other thing, I agree with Mr. Sansalone and the City Manager, you shouldn’t abandon the law and the law is very simple. The law is that there is a presumption if you do this, this, and this, that you have abandoned the use. That presumption is over-competent if you are showing the intent of the owner is to continue the use. That’s the law. It is just that simple. It is not very complicated. If Mr. Hardesty intended not to use it as a parking lot, then he has abandoned it. If Mr. Hardesty intended to continue its use as a parking lot and he didn’t get a license, the City should enforce its law and fine him for running a business without a license, but that doesn’t affect the use. It doesn’t affect his intent and it doesn’t affect the abandonment. He did not intent to abandon it. The law says if he didn’t intent to abandon it, that is a presumption to overcome and you should take the position, I believe, that it is a continuous use and not subject to those requirements. Thank you. President Majic: Thank you. If there is nobody else to speak at this time, I would entertain a motion to close the public hearing. Board Member Ragen: I motion to close the public hearing. Board Member Deasy seconded the motion. Motion carried 4-0 President Majic: Sandra [Scaffidi] would you like to give us an update? Do you have anything else to add? Sandra Scaffidi: I don’t want to beat a dead horse. Gene Kisner: Please speak into the microphone? Board Member Manchin: We have heard everything else. What is the recommendation of the staff? Sandra Scaffidi: My recommendation was that the appeal of my administrative decision be denied. I am confident in reading our zoning code; that we have followed the rules. That we have, at each stage of the game, expressed why this business is not allowable in our zoning district. City Code, Section 3.1.4.E.x, a parking lot is not an allowable use in the City Center zoning District. That is plain and simple. Board Member Manchin: But the City lots are? Sandra Scaffidi: The City of Fairmont is exempt. Board Member Manchin: They are exempt. O.k. Sandra Scaffidi: City Code, Section 8.3.G. The non-conforming use of the parking lot has ceased and has been vacant in the terms of the City’s definition for more than one year. I think that is one thing we are missing here. We have to go by our Code and our definitions. The last business license expired June 30, 2015. No rents were received between January 1, 2016 and December 31, 2016. Also, City Code, Section 8.3.H, the business license issued by the City of Fairmont has expired. With all of the evidence presented tonight, by the City, I feel confident in our recommendation that this business use [appeal] be denied. Board Member Manchin: I have a problem though, and this is just discussion, I have a problem though that the City is exempt, but yet it creates a monopoly. If no one else is allowed to run a competing entity, then the City runs everything. The city runs the parking garages. This is just discussion. I am just throwing it out there. The City is ‘exempt from these Page 17 of 19 rules.’ So then that means they are the only player in town when it comes to parking. I think that goes against some rules out there above the zoning code. Sandra Scaffidi: I will say the parking is exempt, it depends in zoning district. City Center is specific. Board Member Manchin: But the City is exempt to it. It doesn’t matter what it is; the City is exempt so. I’m just saying you control the dynamic of it. There is nothing anything anyone said here tonight that is wrong. I think we have the right as a Board here and take the information and make the best decision we can. President Majic: Before we get a motion one way or the other, I just want to read something from the packet. According to City Code, Section A.9.6.a, the powers and the duties of the Board of Zoning Appeals should hear and reviews and determine appeals from an order, requirement, decision, or determination made by the Administrative in charge with the enforce of this Zoning Ordinance, or rule, or regulation adopted pursuant there to. It should be noted that the BZA should consider only whether or not the administrative decision was correct. The Board does not have the power to grant a variance from the land use nor does the Board of the power to change the zoning classification of the property. So with that, I think we are open to motions unless there are any further discussions. Board Member Manchin: Based on my time here as a lifelong citizen, it has always been a parking lot as far as I have known. I will make a motion that the parking lot continues to operate. President Majic: It would be a motion to go against the City’s decision. Board Member Manchin: I will make a motion to go against the City’s decision. President Majic: Is there a second? There does not appear to be a second at this time. Board Member Ragen: There is a strict rule of what the City’s laws are. I would say that, for what we are supposed to do, I think the City was correct in doing what they did. I may not necessarily agree with it, but the City was correct with what the laws are, as is, and what this Board should do so I make a motion that the City was correct in denying the continuation of the non-conforming use. President Majic: We have a motion. Do I have a second? Board Member Deasy: I second the motion. President Majic: We have a second. Can we do a roll call vote, Maria {Cipolla]? Maria Cipolla: Board Member Deasy: Approve to deny the appeal. Board Member Manchin: Opposed. Board Member Ragen: Approve to deny the appeal. President Majic: Opposed. Sandra Scaffidi: Opposed as in you are against the City’s decision? President Majic: Correct. Kevin Sansalone: It can only pass by a majority vote. President Majic: So they can go before the Circuit Court. Page 18 of 19 Sandra Scaffidi: Every decision by the Board should be inviting and state specific facts and findings fact and conclusions of law. Board Member Manchin: We can always bring up another motion again to try and get a new motion. This motion here is a tie so it is not; I think we just start again. Is there another motion on the table? Mine didn’t work. I didn’t get one. At least you got a tie. Board Member Ragen: The problem is what we are supposed to vote for. We are ruling to decide whether or not the City was correct their ruling. According to the City rules, I believe they were correct. I’m not sure I agree with the City about letting them having a parking lot, but that is not what we are here to vote for tonight. We are here to vote on whether the City was correct on how they did their stuff and that what the issue is. Board Member Deasy: I am not going to go on the record about how old I am or how much I weigh or how long it has been a parking lot. But again, I do know what our role is as a Board. I agree with him, what we had to vote on was whether or not the City followed the zoning rules and they did. That is the limitation of the authority of this Board. President Majic: Kevin, can I perhaps ask for some simple clarification of where we go from here since we have a tie at this point. Kevin Sansalone: I believe that you would have to have a majority vote to set aside Sandra’s decision. If there is not a majority vote, to set aside Sandra’s decision then the appeal failed. I believe they had the burden to establish their… They were entitled to have the decision set aside is there weren’t a majority vote to set aside the decision then the decision stands. Discussion with Kevin and the Gene Kisner. President Majic explained the public hearing is closed. Additional discussion among the Board Members about the final decision. Board Member Manchin: Either way, each party has another avenue after this. President Majic: Correct. Board Member Manchin: Well then, I want to make a motion that we allow for them to continue as a parking lot. Whatever number or letters that that entails. I will make that motion. Kevin Sansalone: So basically, your motion is to set aside Sandra’s decision and allow… Board Member Manchin: It was a tie. I am just putting up a new motion. That is all I am doing. Kevin Sansalone: I think if you put it in the right way, you might get the right vote. Board Member Manchin: Again, everyone has an avenue of appeal. Like I said, we are volunteers up here. It is what it is. We are looking at semantics. I can understand why rumors start. I can. I get it. But I know what you are saying too. Did the City do anything wrong in what they were. Additional discussion about the tie vote. President Majic: We need to end it on a tie. With that I will make a motion to adjourn. Board Member Ragen: I make a motion to adjourn. Board Member Manchin: I second that motion. Motion carried 4-0 Page 19 of 19