Board of Zoning Appeals

AGENDA THE FAIRMONT BOARD OF ZONING APPEALS October 7th, 2021 Public Safety Building 7:00pm I. MEETING CALLED TO ORDER II. ROLL CALL OF MEMBERS III. APPROVAL OF MINUTES September 2nd, 2021 IV. UNFINISHED BUSINESS None V. NEW BUSINESS / PUBLIC HEARINGS for October 7th, 2021 Brad Kisner has applied for a Variance at 702 Pittsburgh Ave to place an accessory structure, a pool, in the front yard of the property. Zoning Code Article 2.3.3.A only permits accessory structures within side and rear yards. VI. DISPOSTION OF PAST CASES None VII. OTHER BUSINESS None VIII. ADJOURMENT BOARD OF ZONING APPEALS This meeting of the Board of Zoning Appeals was held September 2nd, 2021 at 7:00 p.m. in the Public Safety Building located at 500 Quincy Street. ROLL CALL OF MEMBERS Present Absent Board Member Majic President Shultz Board Member Knapp Board Member Perkins Board Member Manchin City Staff Present Director of Planning- Shae Strait Staff Assistant, Kirstin Poluck Vice President Knapp called the meeting to order at 7:00 p.m. Vice-President Knapp made a motion to excuse Board Members Shultz and Perkins from tonight’s meeting. All were in favor. The motion was approved. APPROVAL OF MINUTES OF August 5th, 2021 Board Member Knapp asked for everyone to read of the previous months minutes and look for corrections or additions. With no corrections or additions indicated, a motion was made by Board Member Knapp to approve the minutes. Board Member Majic seconded the motion. Motion passed unanimously. PUBLIC HEARINGS FOR June 3rd, 2021 1. Jonathan Martin, owner of Tetra Holding Co., is requesting a Conditional Use Permit in accordance with Article 8.3.2 of the City of Fairmont Zoning Code to allow for a non-conforming use to change to another equal or less non-conforming use. The applicant is requesting a Conditional Use Permit for “Retail and Service use, not to exceed 5,000 sq ft”. The previous non-conforming use was “Automotive Sales and Services”. The property is located at 501 Merchant St. and is zoned Neighborhood Residential. Board Member Knapp asked if anyone is here to speak in favor of the variance. Frank Sowers spoke on behalf of the request. He stated that he is a lifetime resident of Fairmont and is the current owner of the property. The property in question has been vacant for the last 8-10 months as he has moved his business from the location. However, the property has been well maintained even though it is vacant. Mr. Sowers bought and renovated several of the other properties nearby over the last 18 years. He will be partially invested for the next 15 years with Mr. Martin at this location and new business venture. Jonathan Martin, formerly of Monongah and currently located in Thomas, WV, spoke in favor. He has been a math professor for the last 10 years and also opened up a coffee business in Davis, WV as well. He has been awarded 3 dispensary permits for WV. He would like to use one of permits to open a medical dispensary here in Fairmont. Board Member Knapp asked if there is anyone here to speak against the request. There was no one, and with that Board Member Knapp asked for a motion to close the public hearing. Board Member Majic motioned to close, Board Member Manchin seconded the motion. Planning Director Shae Strait stated that the retail is a less intense use. The business will be required to meet all standards. The requirements are: a. Hours of operation shall be restricted to 8:00 a.m. to 10:00 p.m.; b. Shall be oriented to the front of the lot facing the main street; c. Parking shall be located in the rear or side yards; d. No outdoor display of merchandise or products shall be permitted; e. Lighting shall be shielded and subdued so as not to interfere with the quiet use and enjoyment of surrounding properties as determined by the planning director; f. Traffic flow shall be patterned in such a manner so as not to interfere with the quiet use and enjoyment of surrounding properties; Staff recommended for the approval of the request based upon the evidence within the staff report and the determination that the proposed use, Retail Sales and Services, not to exceed 5,000 SF, was a less intense use than the previous Automotive Services. Board Member Knapp stated that there was an elected official who reached out to him regarding this issue and stated that they were in favor of adding medical cannibus. He wanted to make everyone aware that this occurred even though it did now sway his decision one way or the other. Board Member Knapp asked for a motion regarding the request. Board Member Majic moved to approve the conditional use permit. Board Member Manchin seconded. President Shultz- Absent Board Member Knapp- Yes Board Member Perkins- Absent Board Member Manchin- Yes Board Member Majic- Yes The motion passed and the Conditional Use Permit was approved. Disposition of Past Cases NONE New Business None Other Business None Adjournment Board Member Knapp asked for a motion to adjourn. Board MemberManchin motioned to adjourn, Board Member Majic seconded the motion. Motion passed unanimously.  BOARD OF ZONING APPEALS STAFF REPORT PETITION # BZA 21-08 PREPARED 9/16/2021 Introduction Brad Kisner is requesting a variance to keep an unauthorized accessory structure, a pool, within the front yard of 702 Pittsburgh Ave. Existing Conditions The property is located at 702 Pittsburgh Ave. It is zoned General Residential, along with all other properties on Pittsburgh Ave. All adjacent uses are single-family residential. Figure 3 – Pool as seen from front yard The home was constructed in this original location No other accessory structure is located within the in approximately 1925. It is setback to the alley front yard within a one block radius of this property. similar to how an accessory dwelling unit would be built at that time period. However, at the time of this The rear yard is approximately 8 feet in depth. The report, no evidence has been found to show that this largest side yard is approximately 13 feet in width. was a secondary dwelling to another more primary dwelling adjacent to it. The pool is approximately 22 feet in diameter. All accessory structures must be 5 feet or greater from all property lines. The pool is approximately less than 1 foot from the closest property line. Proposed Conditions The applicant is requesting a variance for the following: • Variance Request. A variance from Article 2.3.3.A – Required Yards which only permit for Figure 1 – Front Yard in 2013 accessory structures to encroach upon the side and year yards. The petition is requesting to allow for an accessory structure to be located within the front yard. The accessory structure, a pool, is already in place immediately in front of the home. This petition is in response to a code enforcement violation after the pool, a privacy fence, and a deck was constructed without a building permit. Figure 2 – Front Yard in 2021 Variance Requirements The City of Fairmont Board of Zoning Appeals may grant a variance to the Zoning Ordinance if it finds that the variance: Page 1 of 3  BOARD OF ZONING APPEALS STAFF REPORT PETITION # BZA 21-08 PREPARED 9/16/2021 i. Will not adversely affect the public health, well because they do not significantly limit views or safety or welfare or the rights of adjacent available open space. property owners, residents or the neighborhood; Staff Recommendation. Based upon the ii. Arises from special conditions or attributes information within this report and the application which pertain to the property for which a submitted, the staff finds that the proposed variance is sought and which were not accessory structure if located in the front yard would created by the person seeking the variance; have a moderate impact upon the prevailing iii. Would eliminate an unnecessary hardship development pattern of the neighborhood. and permit a reasonable use of the land; iv. Will allow the intent of the Zoning The property with the home built as is does not Ordinance to be observed and substantial permit for an accessory structure, other than a small justice done; and one within the eastern side yard. v. Is the minimum variance that will accomplish this purpose. Therefore, it could be seen as just use of the land to permit some form of limited accessory structures Staff Comments within the front yard. However, staff strongly When considering the intent of setback and height recommends restrictions to this in order to preserve requirements for buildings, it is best to look at how the intent of the zoning code and the prevailing this might impact those intentions of zoning. development pattern of the neighborhood. The front yard is the most restricted yard space, If the Board of Zoning Appeals were to find that permitting for open views to and from the home and such a variance would eliminate an unnecessary public right-of-way. This is an important of our hardship and permit a reasonable use of the land, the urban environment. It helps create stronger following conditional limitations are recommended: connections between neighbors, creates an environment with “eyes on the street” (The Death • No portion of the pool, the pools supporting and Life of the Great American Cities – Jane structure such as the deck and screening, any Jacobs), permits for views across multiple properties attached structure, or the like shall exceed 4 feet along the right-of-way frontage, and provides for in height open space for access to light and air for residents. • The pool shall be relocated to be more than 5 feet front the nearest property line As built, the house does not permit for any structure • The pool, nor any attached structure, shall be to be constructed within the rear yard due to lack of located within 25 feet of the front yard line space. The largest of the two side yards would permit for an accessory structure at most 8 feet in o Note: This is based upon the maximum width if it touched the exterior wall of the home. front yard setback for a new home in this district which is 25 feet, ensuring the The pool could be looked at from a lens similar to pool never encroaches upon the front exempt accessory structures. Fences, exempt from yard viewshed of the neighborhood. most requirements, are permitted within the front • The privacy fence within the front yard, erected yard but may not exceed 4 feet in height and must without a building permit, must be removed be mostly see through. Bird baths, flag poles, and benches are so small in profile, they are exempt as Page 2 of 3  BOARD OF ZONING APPEALS STAFF REPORT PETITION # BZA 21-08 PREPARED 9/16/2021 • No other accessory structures shall be permitted 13. There is inadequate space within the side and within the front yard unless another variance is rear yards for most types of accessory structures petitioned for and approved by the BZA. 14. No other property within the neighborhood is known to have an accessory structure within the Comprehensive Plan front yard. The Comprehensive Plan makes no mention of changing the accessory structure yard limitations. Attachments Please see the attached maps and application. Findings of Fact 1. William Brad Kisner and Susan Kisner are the owners of the property 2. The property is addressed 702 Pittsburgh Ave 3. The property is identified as Tax District 5, Map 4, Parcel 65 4. The property is zoned General Residential 5. The property is approx. 5,000 SF 6. The petition is for a variance from Article 2.3.3.A – Required Yards which only permits for accessory structures to encroach upon the side and year yards. The request is to allow for an accessory structure to encroach upon the front yard. 7. The intent of these development standards to is preserve open space as well as access to light and air 8. The request is in response to a code enforcement violation 9. The existing house is approx. 1176 SF 10. The existing house was built in approximately 1925 11. The pool is approx. 400 SF, not counting the attached wooden structure 12. The pool is approximately 1 or less from the western property line Page 3 of 3  7 12 Current Zoning Map DISTRICT 707 General Residential 613 615 709 711 713 312 612 614 700 702 704 706 708 710 613 615 703 701 705 707 709 711 © OpenStreetMap (and) contributors, CC-BY-SA BZA 21-08 Variance 0 20 40 80 Feet To place a pool in the front yard at 702 Pittsburgh Ave  507 509 506 505 502 508 510 501 500 510 507 506 210 102 705 703 701 503 512 212 503 515 513 508 502 511 514 208 505 515 511 510 504 601 516 416 514 507 517 506 603 506 515 509 518 516 514 512 514 605 511 600 601 603 600 5 08 601 516 513 607 606 603 607 604 602 600 512 608 603 518 609 605 514 604 517 515 611 610 608 607 605 602 611 518 606 607 BZA 21-08 Variance 612 700 613 609 606 610 608 601 519 703 611 608 603 610 609 521 612 613 610 600 612 605 703 509 613 705 615 607 604 706 614 60 1 615 606 707 609 705 700 709 708 701 611 608 605 700 700 To place a pool in the front yard0 703 610 607 704 702 613 711 709 312 707 70 612 705 2 615 706 704 614 611 707 704 617 708 706 616 610 709 709 70 619 710 708 6 at 702 Pittsburgh Ave 711 711 621 710 618 614 609 712 617 721 717 713 623 61 713 712 620 6 714 712 714 715 627 100 716 717 621 62 801 800 626 623 0 606 801 80 0 628 625 622 802 800 701 200 604 624 512 500 804 703 627 805 802 800 806 803 626 705 623 804 802 400 700 805 807 805 808 628 808 809 707 701 806 804 704 703 629 811 808 807 709 811 706 705 700 813 810 808 711 708 702 70 400 815 810 707 1 817 812 719 819 715 710 704 70 Feet 815 812 3 817 71 70 7 712 9 7 © OpenStreetMap (and) contributors, CC-BY-SA 816 705 814 805 80 1 714 14 817 707