Board of Zoning Appeals

BOARD OF ZONING APPEALS The special meeting of the Board of Zoning Appeals was held on November 7, 2018, at 6:00 p.m. in the Public Safety Building located at 500 Quincy Street. President Shultz called the meeting to order at 6:00 p.m. ROLL CALL OF MEMBERS Present Absent Board Member Manchin Board Member Ragen Board Member Deasy Board Member Majic President Shultz Board Member Bolyard Board Member Bolyard made a motion to excuse Board Members Ragen and Majic from tonight’s meeting. Board Member Deasy seconded the motion. Motion carried 3-0 City Staff Present City Planner, Sandra Scaffidi Senior Staff Assistant, Maria Cipolla PUBLIC HEARINGS FOR November 7, 2018 1. Ramkabir Properties represented by Thomas W. Kupec, Esq. requests an appeal of the City Planner’s decision regarding the use of a gasoline pump within the Neighborhood Mixed Use Zoning District which has lost its non- conforming use status. The operation of a filling station within this district is excluded in this district. The property is located at 1600 Morgantown Avenue and is identified as tax parcel 6-9-42. President Shultz asked if there was anyone to speak in favor of this request. Thomas Kupec (attorney representing Ramkabir Properties) stated the location had been a convenience store/gas station since the 1950s. The only reason it had lost its grandfathering status was because the previous property (who died the day before this meeting) was diagnosed with cancer and was only thinking about getting her affairs in order and was not considering the future land use of her property. The new property owners bought the property with the expectation to be able to continue a use that had been there for decades. The convenience store has been open for 16 months but is losing money because they are unable to sell gas. The owner cannot afford to hire additional employees and is working sixteen hour days. There is a dramatic difference between this property and his other two locations (outside the City) that offer gas. Mr. Kupec also presented the Board with a petition. [None of the names have been confirmed by the City and many listed an address outside the City of Fairmont]. Alan Cole (local resident) added that this location has been a gas station since the fifties. The new owner has invested lot of time and money already into this location and hopefully will be here to stay for a long time. They will be employing 1 to 4 local people. The previous owner made a mistake; we all make mistakes. The new owner should not be penalized for this. He would like to see local businesses succeed. President Shultz asked if there was anyone to speak against this request. There were none. President Shultz asked for a motion to close the public hearing Board Member Deasy motioned to close the public hearing. Board Member Bolyard seconded the motion. Motion carried 3-0 Page 1 of 3 President Shultz asked for the staff report. Sandra Scaffidi: Applicant is appealing an administrative decision made by Planning Staff regarding the use of gasoline pumps in the Neighborhood Mixed Use district. 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 previously 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 of 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). 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. On June 1, 2017, a public hearing was held; no one was present to speak for or against this matter. Again, Staff reiterated that because a gas station is a non-conforming use, and it was deemed abandoned by our code, that the non-conforming use shall not have been allowed to re-establish. The Board of Zoning Appeals denied the application as presented. Mr. Kupec, an attorney representing Ramkabir Properties, sent a letter again requesting the ability to operate a gas station at 1600 Morgantown Avenue. Staff replied again with a denial and the applicant filed a general appeal to be heard before the Board of Zoning Appeals. 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. While I recommend the BZA deny this request, I do believe that we should recommend the Planning Commission look into changing the Zoning Code to allow specific existing businesses to remain as conditional uses within this zoning district. Board Member Bolyard, Sandra Scaffidi, and the other Board members had a discussion about this request. President Shultz asked for a motion on this request. Commissioner Deasy motioned to deny this request. Commissioner Manchin moved to approve the request. Commissioner Bolyard seconded Commissioner Manchin’s motion. Motion carried 2-1 to approve the gas station as a non-conforming use. President Shultz was not required to vote. DISPOSITION OF PAST CASES None Page 2 of 3 NEW BUSINESS None OTHER BUSINESS None ADJOURNMENT President Shultz asked for a motion to adjourn. Board Member Manchin motioned to adjourn. Board Member Deasy seconded the motion. Motion carried 3-0. Page 3 of 3