Planning Commission

FAIRMONT PLANNING COMMISSION The regular meeting of the Fairmont Planning Commission was held on October 21, 2015 at 7:00 p.m. at the Public Safety Building located at 500 Quincy Street. President William Oliver called the meeting to order at 7:00 p.m. and asked for a roll call of members. ROLL CALL OF MEMBERS MEMBERS PRESENT: MEMBERS ABSENT: President Oliver Commissioner Miller Commissioner Weber Commissioner Straight Commissioner Richardson Commissioner Greene Commissioner Parker Commissioner Pitman Commissioner Majic Commissioner Straight motioned to excuse Commissioner Ron Miller. He is out paving our City in gold. He is our street paver. I would like to excuse him for that. Commissioner Parker seconded the motion. CITY STAFF: City Planner – Mark Miller Recording Secretary – Maria Cipolla PLEDGE OF ALLEGIANCE APPROVAL OF MINUTES FROM September 16, 2015 President Oliver asked for a motion to approve the minutes. Commissioner Weber motioned to approve minutes. Commissioner Richardson seconded. Motion carried 8-0. PUBLIC HEARINGS FOR October 21, 2015 1. Blanche Rowan is requesting a rezoning of her property along Suncrest Avenue, Tax Map 06-07 Parcels 116 and 117, from Neighborhood Mixed Use to Industrial. President Oliver asked if there was anyone to speak in favor of this request. Blanche Rowan asked the Commissioner, please do not ask me any hard questions. President Oliver told Blanche, you are going to explain all the hard questions to us. Blanche Rowan said, o.k., I have owned this property since February 5, 1975. I pay taxes on it. The taxes have really gone up. I would like to rezone it so that I could put something there that is useful, which I think is some storage units. That’s what I think would be the only thing. I don’t know if you are familiar with the area but I don’t think anybody 1 would want to live there. Put a house there. At least, I wouldn’t want too. What else can I tell you? What else can I say? You ask me a question. President Oliver said, what we will do is, we’ll have the rest of the people to speak for and then against. Then Mark will gives us his little synopsis on the whole thing. If there are questions, then we will ask then. Blanche Rowan said, alright, great. President Oliver asked, Is that all you got? Blanche Rowan asked, do you want more? President Oliver said, if you have more. If not, you are free to sit down. Blanche Rowan said, thank you. President Oliver asked if there was anybody else here to speak for this request. Paul Buege stated, I think they should rezone it for some kind of a useful use rather than just sit there and do nothing. President Oliver said, thank you Paul. Is there anyone else to speak for this request? Kareem. Davisson said, my grandmother has been told that she can’t fill in her property. This would allow her to use it without filling it in and cause drainage issues is what we have been told. For her to actually be able to use the property, this property should be useable, this would be a valid request. President Oliver asked if there was anybody else to speak for this request. There were none. President Oliver asked if there was anyone to speak against this request. Please state your name and address for the record, please. Glenn Tanner stated, thank you for the privilege to talk to you about this. I am opposed to this for the following reasons. I feel any industrial commercial use there would decrease the property value of my property. It will increase traffic somewhat there. It’s not such a bad thing except the other noise we have there. We live in a triangle there. You have Morgantown Ave, Suncrest, and Speedway Avenue. The rules are not being enforce there at all. I have called the City about that. They don’t seem to want to cooperate. We have a lot of bikes through there. There are pretty loud Harleys. It is just a very noisy situation there. For a neighborhood area, I don’t think it should be rezoned. If you add anything more to it, we are done. It will be detrimental to a good neighborhood environment. The noise in that area already starts about 3:30 a.m. until 4:00 p.m. or so when everyone gets done with their trucks. Another problem would be there because there is no sewage or water there. I can tell you for sure because I had to pump my sewage from the Suncrest area that I live on, up to Speedway Avenue. They have no sewage there and no water there. For those reasons, I don’t feel it is a good idea to go forward with this thing. Thank you. President Oliver said, thank you. Is there anyone to speak against this request? Earl Martin said, first of all, if you put a business up beside your house, that is what this would be, it is going to decrease the value of our properties. This past year they just increased my taxes to $5,000.00 more. If they put this up, it’s going to knock my property value down more. There are no sewer lines there over there so would create some problems. Also, the noise and we have the park over there which is for the children. We have a church also. You can put storage over there that she just mentioned that puts a good dark area for people to hide and sell drugs. We don’t need that. We are clear out, almost out of the City limits. Yes the police drive by now and then but, that is going to induce and we 2 don’t need that kind of stuff across from the playground where the kids are. When they filled in the hollow next to Circle K, when they redid Speedway, there was a drain that went clear across on the other side of Suncrest Avenue, no one check or did anything to it, they just dumped the dirt in. It filled in a great big, almost like a lake, the City put in a drain going through there over into the other hollow. If it rains really hard, it backs up clear to my backyard. If they do anything else, it is going to come and then I am going to be suing somebody. You can’t drain your water over on me. With Mr. Brock, it already hit onto him. Plus on the other side, was the old Vincent store. They made a driveway down through there. Now we have water coming down Morgantown Avenue. I have lived there since 1973 and I have seen water twice that has backed up. All that water has to go clear over to the Aluminum Plant. What if that gets blocked and who is going to open that up. That’s my big concern for that is the flooding. I don’t know where all of you live but I don’t think you would want a business right up against the end of your house. That is what would happen to me. Thank you. President Oliver said, thank you. Commissioner Weber asked what his house number was. Earl Martin said, 1923 Morgantown Avenue. On your map, I would say it was lot 111. If I am reading this right. President Oliver asked if there was anyone else to speak against this request. Nic Marchesani said, I came down here to learn a little more about the situation. I have talked to Mr. Tanner and Earl about their concerns. I don’t really understand the difference between Mixed Use and Industrial property. Those different things. So, my concern is that when I look around the neighborhood, it’s defined as Mixed Use. The neighborhood, churches, and the little convenient store. When I think of Industrial, I think of things not necessarily storage units, but big industrial complexes that doesn’t necessarily fit in a neighborhood. I am all for people using their property to make money to benefit the community. But in a situation where this becomes industrial then it is basically rezoned industrial. So whether there is storage facilities or they get torn down and they put in something else that fits in that category. We have to think down the road as well. Thank you very much. President Oliver stated, I think a lot of that will be addressed at the end of all the for and against statements. I think Mark is going to give a very good explanation of all of that. I know you have setback rules and all kinds of things with property size. You have different businesses and churches in that area. There is a lot that we will explain to you that I think will answer a lot of questions for people. President Oliver asked if there was anybody else here this evening to speak against this request. There were none. President Oliver said, I am going to have City Planner, Mark Miller for his staff report. Hopefully he can give you some answers and we will go from that. Mark Miller stated, bear with me, there is a good bit of information here so I’ll go over it so everybody understands it. So if you have any questions at the end, by all means, feel free to ask. Mrs. Rowan came in and she explained that she was looking to do storage units or something along those lines. That is not allowed in the Neighborhood Mixed Use. The only zoning that is permitted is Industrial. According to Planning and Zoning Code, the Planning Commission can make a recommendation and present their finding to the City Council on a request for rezoning. There are certain criteria that have to be met. That is what I am going to go over now. The first is, the need and justification of the proposed amendment. The property is located within a mixed residential/commercial neighborhood. There are vacant lots and the applicant has stated that they are unusable as they sit. The effective on the proposed amendment on the property, surrounding property, and the City. The lots together are a little over ¾ of an acre. Adjacent uses are a mix of single family residents, commercial, recreational, and industrial across the street. The suggested use would not negatively affect neighboring properties. The relationship of the proposed amendment to the Comprehensive Plan. The area is currently zoned Mixed Use and is designated for residents/commercial on the future land use map. That is part 3 of our Comprehensive Plan. The request to rezone or to spot-zone one property along Suncrest Blvd could be interpreted as an extension of the existing Industrial across the street where the Novelis, the church, the park, that is all in Industrial. I do have a map. Here is the block we are talking about. Here, the orange represents the Industrial. So her request would just continue that orange up in through that existing area. Whether there have been major changes of an economic, physical, or social nature within the area, there have not. Whether those changes have substantially altered the characteristics of an area, again, since there have been no changes, there is nothing to report there. Whether the proposed amendment should be adopted, based on the previous discussion point, staff does not oppose the rezoning request. We have met all requirements as far as our legal notifications. One thing I did want to point out, the subject parcels are located within a stone’s throw of two churches and a park. That would exclude a lot of uses that you wouldn’t want to see in your neighborhood such as adult entertainment or limited video lottery. That kind of stuff you certainly have to be a certain distance from those kinds of businesses. What Mrs. Rowan is proposing, I don’t think would require water and sewage and that kind of stuff. The lots are long and narrow. So any kind of big industrial use, it wouldn’t be big enough to do anything with. President Oliver said, I as just curious about the storm water runoff of the property. Mark Miller added, anything that is proposed on the site, Mrs. Rowan or the owner would have to come into the City and sit down with our Development Review Committee and meet with our storm water coordinator to make sure there is not going to be any issues that create a further problem. Taxes were mentioned. I don’t know if this would do anything one way or the other. That is the County. President Oliver asked the Commissioner if they had a motion. Commissioner Weber asked, is it was possible to table this motion? I would like to go look at it personally. I know where the property is but I would like to actually go see the property in regards to what is proposed here across the street from the church and park, which I know pretty well. Is it possible? President Oliver said, I really don’t think so, Dan. Because there has already been a public hearing to set and now a public hearing. Commissioner Weber said, alright, that is fine. As long as I get an opportunity to look at it. President Oliver said, if you want to have a little discussion on it, we can discuss some of the issues that were brought about. Commissioner Weber added, I don’t know the property or how it lies. I know where it is but I don’t know exactly how the property looks. I know where Hoult Road is and I know where the Circle K is. I know where the park and church are but I am not sure about the other side of the street. I would like to look at it. Commissioner Straight said, being from the Eastside, I know the property well. For as long as I have been on the Eastside, it has been vacant for a good while. I don’t know who takes care of the cleaning of that property. There used to be a gentleman that lived right past the BP, Mr. Ernie Dodd that took care of the property. Earl Martin added, Ernie Dodd he kept it mowed around there. I did. Kenny Mason did. Mr. Miller, the City Street person, came out and brush cut twice so you could get in and out of my driveway. You don’t get onto mine and Nicky’s property from Morgantown Avenue, you get there off of Suncrest Avenue. Commissioner Straight added, this is me asking, the other question that I have with wanting to put these storage units in, how does that affect you and your driveway coming into your house. 4 Earl Martin said, it won’t affect the driveway as long as they leave the hollows alone. Don’t fill in them. It’s going to be worst then it is now and that is going to come up into my backyard. I have seen the one hollow fill in (with water) and come across my yard. Yes, it is big but I have seen it come across the driveway twice (since 1973). Commissioner Straight said, I know it’s not really a moot point but she is not going to be putting water and sewer in so that eliminates that part of it. The truck noise been there since for as long as I have been here. I’m not going to tell you how old I am but it’s been there that long. President Oliver added, it will clean up a blighted area. The truck noise been there since Westinghouse and A&P printing. If you bought there in the seventies, you there where Westinghouse, A&P, Owens, and everything else were there. This gentleman here has a question real quick. Bill Vanata said, I don’t know where they are coming from. My sister bought this place back in the seventies. They are worried about water. She has put up with their water. That is her property that water flows on. You know that (pointed at Earl Martin). I don’t know of them cleaning up anything. This young man right here, lived right there for years. So if you cleaned and mowed, I don’t know when you did. It upsets me to listen to that and she puts up with their water. They don’t put up with hers. Let them fill in that whole and put a pipe in to take care of their water. She is not saying anything to them for whatever comes out of there and goes onto her property. But yet they are trying to say it is going to ruin their place because she is trying to do something with that property. I think that is pretty unfair. Commissioner Parker asked, what happens if the request is granted. What happens to the adjoining lot 115? It is on the corner of Suncrest and Morgantown. How does that action affect that particular parcel? President Oliver added, that is my biggest question on it Eddie because that’s the part of this whole thing that I really don’t like. I think if section 115 was actually on this map as Industrial being a gas station number one and taking it from corner block to corner block, that is how I would vote for it. But right now the way I’m leaning, I look at it and as much as I would like it done, I personally couldn’t vote on it, unless it was voted on contingent to Parcel 115 being brought into Industrial zone with those other two lots. Commission Straight added, that would take the whole area. Commissioner Parker asked, has the owner of parcel 115 requested to be rezoned? President Oliver stated, no, the people at 115, which is the Circle K, MACS Convenience Store LLC, was notified. They were neither for nor against this request. I am sure being a convenience mart, they would want to be part of that zone. That’s my opinion. Commissioner Parker said, I’m curious. Mark, in your report you are not opposing the rezoning the request. There hasn’t been anything new that changes the area that cause the rezoning. What is it about the facts that are presented that leads you and your staff to support the request? Mark Miller said, what we looked at is one could see this as a continuation of Industrial rather than a spot-zone of orange out all by itself but a continuation of that. There is a non-conforming gas station on the corner. They weren’t involved in the rezoning request. It would provide a use. With the surrounding churches and a park, she would be very limited to what she could put in. President Oliver said, I have a question for Mr. Tanner. Do you live right beside that property? Is that your house right there on the corner facing the road, parcel 117? Would that be you? Glenn Tanner said, no, I think that is Kenny Vincent. All four of us share the same driveway. Mark Miller told President Oliver that parcels 116 & 117 both belong to Mrs. Rowan. 5 President Oliver asked the other Commissioners if they were aware that both 116 & 117 belong to Mrs. Rowan. They all said they did know. Inaudible discussion from all the Commissioners at this time about the request. Commissioner Parker said, Mr. Chairman, given the impact on parcel 115, I would prefer to table the motion, have an opportunity for the owners at 115 to speak for or against this, and then we could consider this as a unit. Otherwise, we could be creating a problem that we don’t need to do. So my motion would be to table this, give notice to the owners of 115, and see how they stand on this. Have them come to the next meeting and tell us. Than we can decide. If it’s a joint motion, that would be one thing but if they aren’t together on it, than that’s another thing. I am also concerned about the people here that are opposed to it and each property affected by it. I think if we are going to make a decision like this, it should be a joint one that effects entire block and not just these two. My motion would be to table pending a hearing on the matter with all parties effected. President Oliver said, o.k., I have a motion to table. Do I have a second? Commissioner Richardson seconded the motion to table the motion. Motion carried 8-0 by roll call vote. Commissioner Straight told President Oliver, Bill, you might want to explain to her why it was tabled. President Oliver said, that is exactly what I was just getting ready to do. I was actually just have here come down a talk to Mark one day this week. Do you kind of understand what we are talking about there and where we are at? If 115 is not in it, it’s considered a spot-zone. We don’t approve spot-zones. So you are just wanting to take your two parcels and put it there. They have to go from city block to city block. Kareen Davisson (Mrs. Rowan’s granddaughter) asked, so are you talking about the Circle K? President Oliver explained, Circle K needs to be incorporated in so that than you are getting past that spot-zone issue. Which is what we have. And two, then we will deal with the other end of looking at the run-off, looking at the storm drain, looking at whether the water backs up, and things like that. It is hard for us as a Board to ever go against residents. Yes, we do want to see business. We want to see development in the City of Fairmont. But we can step on the toes of the people that live in these houses that have been there for a long time or even the ones that just moved into it. So give us a little bit of time to check those things out. See what we can work out with Circle K with at least eliminating the spot-zone part it. I know, at least, is a big issue with me. I will not approve spot-zones. I am being honest with you on that one. Blanche Rowan said, oh, I see. Absolutely. I understand. Commissioner Straight added, I hope that with the gentlemen that stood up and spoke about the water run-off. Hopefully, we can get everybody’s heads together and address that problem. It may all fit together after that. President Oliver said, that’s the thing, I look at it and you know it runs downhill. Commissioner Straight, said, yes. And I know as long as I’ve known, that property has always had water in that area. David Vincent (Blanche’s son) said, I was a resident for about twenty years. My mom and dad invested money to make it look half way decent. You talk about taking care of it. I don’t know what he is talking about. The grass was cut over but not by them. As far as garbage from the Circle K or the Dairy Mart, those people didn’t care. We picked it up. Tractor trailers pull in there. They park in there and they never ever tried to discourage people from doing something like that. I am sitting here listening this. I know where the hollow is and I know how the water drains down there. What he is talking as far as flooding goes, doesn’t have anything to do with that piece of property. I don’t know where he is 6 coming from. That hollow is so deep, he could fit his house. We have tried to get a manhole put in by the State; for them to put concrete and a manhole. They said the drains would have to run into it. It never materialized. It is a natural drain. It does run down the hollow. President Oliver said, that may have to something she has to do with that lot, if she does those mini buildings. She has to create drainage. She might have to take the expense of that. I don’t know if you ever looked at the price of drainage. It’s expensive. David Vincent said, there is drainage into that hollow. My father put it in there. There was a little pond. They said it would attract mosquitos. He had a company come in and put a line into that big hollow to drain that. They have tried to do what’s best for the neighbors and the City. They didn’t make it look like a trash hole. President Oliver said, and that’s what we are trying g to do. We are trying to do what’s best for everyone in this room. I appreciate that. I do have to move on to the next docket. You do not have to stay for it. Anybody who was here for the first one, is more than welcome to leave and then we will start in on number two right after that. 2. Stoney Quinto, on behalf of S&S Auto Sales, is requesting a rezoning of his property located at 315 Morgantown Avenue from Neighborhood Mixed Use to Main Corridor Commercial. Tax Map 03-05 Parcels 103 through 110. President Oliver asked if there was anybody here to speak for this request. Stoney Quinto said, good evening gentlemen. As you are familiar, I have been here on numerous occasions. This time is quite a bit different. I heard you speak about spot-zoning. My name is Stoney Quinto Jr., co-owner of the S & S Auto Sales, speaking on behalf of Stoney Quinto, Sr., the owner of the S & S. What we have here is a complicated legal problem. I have gone through three planning directors since you are probably most familiar with and will get to the point. What we are continuing and arguing is the Neighborhood Mixed Use is an illegal zoning from day one. Now Mr. Oliver, I believe you were, in some manner, involved along with Mr. Jay Rogers. Were you not in that zoning processed back in time? President Oliver said, yes, probably. Stoney Quinto went one to say, now getting to the point. We are not requesting spot-zoning. I know that you have voted against spot-zoning before. What you are dealing with is a group of zoning mistakes. I am going to give you the documents on it. They are in violation of the State’s statutory law code. Mr. Miller has stated, as Ms. Wyrosdick stated, she has resigned and the City Manager resigned. We won’t get into those issues. You know what took place there. It’s not worth getting into. You are in violation if you approve what Mr. Miller has stated. Chapter 8a line use, Article 3 Comprehensive Plan was not a blank check to do anything that you wanted to. I am going to present to you, and I mentioned this to Mr. Parker (Commissioner Parker), were I believe, argue, and continue, you are in violation of State statutory law. Now we were four days away from jurisdiction and the Honorable Judge Aloi said just refile it. So we were four days late of having this proceed under what was essential a writ of certiorari. I am contending you are in violation of 8a3-1. You will get all of this. You are going to have more information than you probably be able to even process and all of the section of the chapter 8a Article 3 of the West Virginia state code. Now, again, you are dealing with a series of illegal zoning debacles. The findings of facts in conclusion of law in Mr. Miller’s report are inaccurate and illegal. Because, what has taken place, Anthony Chevrolet was Business B. Now you say, why I am I bringing these up. Well these are prim facial facts. I filed a Freedom of Information request for properties that were Business B. And here was the list of following. Obviously, we were Business B. Anthony Chevrolet was Business B. Country Club Motor Lodge was Business B. Leonard Service Station was Business B. Woodchuck’s General Contractor was Business B. Fairmont Printing was Business B. Lion in the Sun was Business B, and Movements in Dance was Business B. My point is this. Some properties went from Business B to Main Corridor Commercial specifically Anthony Chevrolet. They did not have to conform to 1309.04 Section W D&E major changes of physical use and so on and so forth. They went there. However, a mistake was made evident. There is the paper. You are going to get it. That a mistake was made on 7 Leonard Service Station. It went to Neighborhood Residential. Now the argument by the City of Fairmont was with Ms. Wyrosdick, it appeared to believe it was intended on the map but somehow it got lost. Well, I question all that but bottom-line, it was misdone. And then in 2014, you all did not interpret using 1309.04 Sections D & E. There was no major changes. There were no high rises built. I think they put a roof on Country Club Motor Lodge. Joe Petrola spent some money revising at the request of General Motors. Mr. Miller, a fine young man, but I do not agree with his staff report because it creates and paints you all into a picture that I am asking for spot-zoning. I am not. The property all around us should have gone to Main Corridor Commercial legally. My argument is you are in violation of State Statuary Law if you go along with that. You are basically painted into an illegal zoning corner. That is what happened. This mistake has been continuing for a number of years. You had an opportunity back in 2010 with my attorney to correct that problem and you failed to do it. That’s not my fault. I didn’t file a writ of certiorari at the time. You had an opportunity with Mrs. Wyrosdick again and didn’t do it then. Now I have to be very straight forward and blunt about this. If you go along with this staff report, this staff report has poisoned the well of the legislative and governing body of the City of Fairmont. Because it paints a picture that is negative saying we are wanting something that you can’t do. We are not wanting spot-zoning. We want it corrected as it should have gone to Main Corridor Commercial. I have to tell you that this evening, that if you deny it, and I am requesting by Freedom of Information Act tomorrow morning, I told Mark Miller this, a copy of that. You will have five days to comply. I am going to file it if you go against this. Under the jurisdiction of 53-3-1 Article 9 a writ of certiorari. David James is not going to hear this case because we are very good friends. He had to recuse himself and it went to the Honorable Judge Aloi. And Judge Aloi said, and I wish Mr. Sansalone would be seated there because he would vary this and you could talk to him tomorrow if you doubt me, the judge told me point blank, you’ve had two officials resign, maybe things will be different. I said, we’ll see. But your Honor, I hate to put you on the spot, would you hear the case again. He said, you come back in under the correct jurisdiction. That is the problem you are dealing with. So it is not spot-zoning. Now, the way you can get out of this illegal painted in corner is, is to grant us the Main Corridor Commercial. That was a mistake and that would be legally compliant because that is going to be my argument with the writ of certiorari and plus a lot of other things that I am not going in detail to tonight. But Mr. Sansalone is going to have to earn his money. I have to tell you something else because I am a very straight forward man. I kind of pride myself without that kind of money being like Donald Trump, I have already sent to Charleston and they mailed me a package down that if, with all due respect, I think it’s going to go to the senior status of Judge Stone, if I don’t get my way up at the Circuit Court but I think I will, I am going to file a notice of appeal with assignments of error to the West Virginia State Supreme Court. Now, I am going to tell you something else legally and I wish Mr. Sansalone would have been here, within about seven days whether you get back on that report or not, here is your problem, you are in another fix. Mr. Miller has painted you into a tough corner here because if you approve it, I am still going to file the writ of certiorari. If you disagree with me, I am still going to file the writ of certiorari. And here is why. Mr. Miller has poisoned the well on the legislative and governing body that even if you approve it, they can exercise 1309.04 Section I believe is G, somewhere in there. You’ll have it in your code. That they don’t have to listen to your recommendation if you approve it. They don’t have to listen to your recommendation if you don’t approve it. They can do the opposite of him but I don’t have a crystal ball to know what they are going to do. And under, and I have two Supreme Court ruling, Garrison verse the City of Fairmont, that a writ of certiorari does not lie against the governing body that lies against you. So that’s why I was hoping that Mr. Miller would not have done what he did. Now you are in a predicament. I am open to all questions. Feel to free to ask anything because I know this case inside and out. I want to present you Mr. President. (Mr. Quinto gave President Oliver some papers he used for his presentation). That is just part. I have about twelve to fourteen assignments of error even prepared for the West Virginia Supreme Court. That is just part of it. It’s a complicated case. I have been working on this a long time. And I was hoping that you all would eventually see the light. I was hoping Mr. Miller would kind of see, hey wait a minute, there is a mistake in the past he inherited. Mr. Miller inherited a mistake of the past and I was hoping he would correct it. That is not the case. He is a fine young man. I like him personally but of this business deal, we can agree to disagree without being disagreeable. I cannot say that about Jay Rogers and Kathy Wyrosdick because they were part of the law suit of the writ of certiorari. Had it been filed four days earlier, Judge Aloi would have heard it and I think we would have won the case. That’s my opinion. I am open to all questions. Feel free to ask them. President Oliver said, I have no questions. Gentlemen, do you have any questions for Stoney? 8 Commissioner Parker asked, Mr. Quinto what is your indented use for the property? What is your expressed need for the rezoning that you request? That is obviously one of the criteria, is the need and justification you expressed your opinion on justification. What the need for it? How are you being deprived of an opportunity that you want to partake of if we don’t do this? Stoney Quinto replied, the opportunity that we are deprived is that we have property rights and uses that legally existed from 1959 to approximately 2006. Now those property rights were removed illegally. So we don’t like, to put it bluntly, being robbed and going against the state statutory law of the Comprehensive Plan that said very specifically on the page that you zoned for present and future needs. So tonight, I not coming before and saying I want to do anything special, I just want to be made whole again as to what we had under the law. There are other violations. I am not going to get into that. Mr. Sansalone is going to have to deal with that. One of them is under section one of the Fourteenth Amendment under the equal protection clause. To answer your question, we want back our property rights and uses that we legally had. It was illegally taken away because the Comprehensive Plan. The West Virginia Legislature did not give the City if Fairmont, and the City of Fairmont was the first city to implement the Comprehensive Plan, and they implemented it with mistakes. And the mistake was made there on I believe the East Fairmont High School. One it was mentioned there in that document and the other was Leonard’s Service Station. So to say tonight specifically, I want to put in a big service department, and so forth, no, but we had those rights and we want those rights back. They were taken away illegally. And that is our argument. Commissioner Parker asked, when the Comprehensive Plan was adopted, did you raise the issue or make an objection at the time it was being adopted? There were hearing on that. There were opportunities to appear. Did you make any objections at that time? Stoney Quinto stated, at that time we were going through other trials and tribulations. I am glad you brought that up because the death of my mother had occurred very recently in that and I will go on record and swear under oath that I called Jay Rogers. I had a conversation with him and I’ll testify to that. He said you don’t have any problem. You can continue as you are and everything will be fine. I took the man at his word. Well his word was not accurate because what it did, at that time the original Neighborhood of Mixed Use turned us into a non-conforming use where if our license expired in a period of over a year, we would have actually lost everything. Here is another thing, and I am glad you brought that point up, even though you could go in and exercise your due process of law, there was no door you could enter in and say ok, they are going to go along with your wishes because obviously when they change all those properties around there, I contend illegally, they knew those people had rights with Business B and for whatever reasons, they took away those uses. When you examine those pieces of paper and you look at the original Business B zoning, it stated in there legally, you have a right to sell automobiles, a right to repair automobiles, sales on automobiles, drive-in restaurants, filling stations, and service and even repairs. Which is technically what existed for in its application for Anthony’s Chevrolet, Leonard’s Service Station, which was corrected. So going in there and exercising and talking before the meeting, which I have done, this is my third time. And what have I accomplished in three occasions? So to answer your question, it probably would have been an exercise in futility to be blunt because I have been here three times and I still haven’t got what I want. So that is why I wrote on those documents and I have a lot more assignments of error. I am going for a writ of certiorari. So you are in a tough predicament. Unfortunately, Mark Miller you put them in it with your staff report. But you inherited the other part of the problem. The inconsistent and misuse and abuse of the state’s statutory law of the Comprehensive Plan. Not the Comprehensive Plan you adopted, the one the State of West Virginia gave you compliance, directive, and issued you how to go about it. Mr. President, if you would open up that document there and you start reading that, its plain and simple English. It says to zone for present and future needs. It didn’t say to start throwing things out the window and make people a non-conforming use. That’s illegally what it did in 2006. It did that with Leonard’s Service Station and that was corrected. Now what you did in May of 2015 only gave us back a little something that we already had from 1959 to 2006. But what you didn’t state in there is what it still is not letting us get back to our property rights and uses. That is what we contend is illegal. That is what is going to be our fight in the Circuit Court. And if we don’t win it there, I’ve got the papers. I am going to file the assignments of error. They sent the papers down. I’ll take it to the West Virginia State Supreme Court myself. I will not need a lawyer. I had a lawyer once and no offense, God bless him, and he went about all the wrong way. He wait until the City Council passed a resolution, an ordinance. You cannot file a writ of certiorari against the legislative body. That 9 was in Garrison verse the City of Fairmont but it was modified later on another case, Donaldson verse the Charleston Mining. They modified it. You can file it even if it goes. So I would advise too, probably the City Council that maybe keep their hands of this one until it works its way to where I am going to send it. So unfortunately we are in a tough situation, both of us. I think you can see it now. Any questions? President Oliver asked, Are there any other questions for Stoney? Stoney Quinto added, it’s a tough one. But you have to realize we didn’t create this illegal zoning debacle that we contend and argue. You have to realize that. We were over there mining our own business. And we could have exercised our right, attended the meetings, and I could be blunt about it. I have attended three of these meetings. Mr. Straight and most of you know us. What good did it do? It didn’t do any good. President Oliver said, thank you Stoney. Stoney Quinto replied, thank you. You got the documents but there is more to come. President Oliver asked if there was anybody else to speak for this request. Paul Buege said, good evening everybody (everyone replied the same to him). I have been around this town a good while, more than any of you. I’ll be ninety on my birthday. I have watched things change for the State and the City. When they put the zoning in, they destroyed this City. It used to be there were little businesses along every street you could think of. Little family owned, private owned, people had their store in their sun porched and they lived in the house. The bell would ring and they’d come out. They did a little bit of business and they stayed off of welfare. That is all gone now. They didn’t have any City Council, no Planning Commission, they done just fine for a hundred years maybe more. We had a place on Elkins Street. A huge car lot; a motorcycle parts store; and a gun shop. We want that back. I was here when they put the zoning in. Anybody here remember Bus McClendon? Nobody. They put him in charge of the zoning. He come around. I haven’t had my place more than a couple of weeks and he came by and said “you have to tear that building down”. I said, “What are you talking about?” He said, “This is residential now. You can’t have nothing but a house here”. We backed off and went to the City about it. So if we are down for a year though, you can’t have the business and nobody else can. And as far as that land out there in Norwood, Mrs. Rowan is talking about rezoning and the water and stuff, that was always a swamp in there anyway. Trees, brush, and there was the aluminum plant, tire plant, Sharon Steel, and Westinghouse. They have done salvage. There were stores all around there. Before they ever built their houses there. This town was striving then. At one time. It was in the top ten in the United States back in the forties, fifties. Then the zoning came. They changed things around. The only thing you can do here now, Mr. Big, is a government project. That’s government money, government buildings, office buildings, which are getting more and more all the time. All the taxpayer money in Fairmont. They are getting some out of Washington but it is still taxpayer money. There used to be traffic in Fairmont up and down Main Street. You could hardly move up and down. You elbowed your way. Business was good. They’re complaining now they might have traffic if you put storage buildings in. President Oliver said, let me ask you one question so that way we don’t go on until ten tonight. We are trying to stay in relevant of Stoney’s rezone down there. I know what you are trying to explain to us about the City and things like that. Paul Buege said, we had a used car lot there on Elkins Street. Somebody said they may have changed it. The new zoning said, you shut down for a year and you can’t open back up. It’s residential. We tried to sell our property. Stoney might want to do too. Three times we had buyers for it, a machine shop and two others. All three of them looked to see what the zoning was. They said we can’t use it. Thank you. President Oliver said, thank you, Mr. Buege. President Oliver said, is there anybody else to speak for this request? There were none. 10 President Oliver asked if there was anyone to speak against this request. Thomas Devito said, I am talking for my mother who live on Maryland Avenue. She and Rosemary Reese went around Maryland Avenue and had people sign a petition being against the requested rezoning. I can appreciate Mr. Buege’s comments on how Fairmont was and how Fairmont is today. But if you look at any city in the State of West Virginia where a wall was built outside the city. A Walmart was built outside the City and what you had inside the City moves. That’s just how things, maybe not progress, that’s how things evolve. Now, we hear about Anthony Chevrolet. Anthony Chevrolet, part of their property faces fronts a US highway. Lenard Service Station fronts a US highway. This property does not front a US highway. It does not front a state highway. A block passed his property, you’ve got a middle school property that comes down to Morgantown Avenue. Adjacent to his property on Maryland Avenue, you have residential properties. My mother has lived on Maryland Avenue for forty some years. Mrs. Reese’s family has been on Maryland Avenue for 73 years. So, I don’t think they should have to suffer harm to their properties on his request. I would hope that you vote no. I don’t know about the law in all of this but if the rezoning went through due process when it went through, then he has had his chance. If we have to come back every year, we will be back every year and those people will sign that petition every year. President Oliver said, I do have a question on the petition if you don’t mind. How many people actually in the affected area of what would be this rezoned, are on the petition? Do you have any clue of that? An unidentified woman said, you have the addresses there. President Oliver said, all I have is tax maps, parcel numbers. I don’t have, I have the addressed on here. An unidentified woman said Maryland Avenue, Alta Vista, and Diamond Street. They don’t want the zoning change. They want it to stay the way it is. President Oliver said, correct. My main concern is like parcel 109, 103, 110, 112, 95, 99, those were the names I was curious whether they are on this form. Commissioner Weber said Mr. Drajech’s house fronts East Park Avenue. President Oliver adds, I think Mr. Drajech’s is parcel 222. Commissioner Weber said, all these house numbers going up Maryland Avenue, I know that area pretty well. They are probably all neighbors and close together. Can I say something? We have dealt with this three time already. We have turned it down. The reason I think we turn it down in the past was we had neighbors that didn’t want the zoning changed. I think there were 46 names on the petition the last time. Things haven’t changed. I haven’t seen any change from the neighborhood. I don’t see any reason to change the zoning. I think we need to leave it as it is. President Oliver said, we can’t quite take that yet Dan. Commissioner Weber said, I know. I am commenting on something that is being presented. President Oliver asked if there was anybody else to speak against this request. Richard Straight said, his grandparents purchased his lot over a hundred years ago. There is kind of a question in my mind. The S & S property fronts Morgantown Avenue but there is also a plot that from Maryland Avenue. I think maybe they should be reviewed separately. Because the property that front Maryland Avenue definitely should be residential property. We feel the zoning is correct. We are not attorneys but I feel the property on Maryland Avenue would be different from the property on Morgantown Avenue. We would like the neighborhood to continue as it is as a residential property. We have a lot of small businesses in the neighborhood and everything has pretty much coexisted 11 in the past. I have been there 66 years. We do have an influx right now of school buses. I have been talking to Mr. Drainage and some other people at the City. They seem to be traveling quite fast. They are dismissing the students. There are students on the sidewalk. There is just a strip of grass between them and the buses. They come right close to the curb. There isn’t much curb there. The last paving pretty much eliminated it. I think that is a pretty dangerous situation that should be reviewed. Thank you very much. President Oliver said thank you. Is there anybody else to speak against this request? There were none. President Oliver asked City Planner, Mark Miller for his staff report. Mark Miller stated Mr. Quinto has eluded to my staff report so I am going to go over that for the record. Mr. Quinto and adjoining property owners made a similar rezoning request in August 2010. A lot of the Planning Commission that are sitting here now were here then to go from Neighborhood Mixed Use to Main Corridor Commercial. City Council denied requested rezoning September 28, 2010. According to the City Planning and Zoning Code, applicant that are denied a rezoning may not submit the same request within one year. So Mr. Quinto came back again May 21, 2014 after waiting the requested 12 months and the application was again denied. Going through the discussions and findings like we did with the previous request, what we need to look at is there is certain criteria that must be met in order to do a rezoning. So the first one, the need and justification for the amendment. Mr. Quinto stated with his prior application, I went back and looked at the previous ones that the rezoning request was made to restore prior zoning uses when the property was zoned Business B and to advance more jobs and tax revenue for Fairmont. The new application refers to an old zoning mistake that illegally took away Business B classification making auto sales a non-conforming use and therefore leaving him with a non-conforming use. He has again requested it be rezoned to Main Corridor Commercial. Looking back again through the history, again I wasn’t here when a lot this was done but, the area along Morgantown Avenue was identified has residential/commercial to accommodate small businesses near residential neighborhoods. This area was so noted on the future land use plan and rezoned according to the recommendations of the Comprehensive Plan. There have been no significant changes that would justify a change in land use for Mr. Quinto’s property. The effective the proposed amendment on his property, surrounding properties, and the City during the Comprehensive Plan deliberations about the East Park neighborhood area, they were lengthy decisions regarding the need to provide for modest commercial development along frontage roadways of East Park and Morgantown while maintaining the integrity of residential neighborhoods. This is going back to predecessors explanations to kind of give you a little history as to why the zoning was done. The residential commercial land use designation and rezoning to Neighborhood Mixed Use fulfills the intent. The relationship of the proposed amendment to the Comprehensive Plan, the request to rezoning or spot-zone one section of property along Morgantown Avenue is inconsistent with the Comprehensive Plan. I will show the map. For those of you who don’t know what we mean by a spot-zone. This is what the area looks like now. This is what it area would look like just rezoning that one parcel to Main Corridor Commercial. As Mr. Oliver said, that’s something that we try to do. There have been no changes to the area since the Comprehensive Plan was adopted that would qualify his property alone to be rezoned. Based on the previous discussion, point staff does not support the rezoning request. All notice requirements required by the State have been met. Mr. Quinto eluded to it a little bit earlier, there are several auto sales along Morgantown Avenue. When we did a major revision to the zoning code, we did look at that. They were non-conforming uses in the Neighborhood Mixed Use. We took a look at that because there are four or five. I don’t know. What would you say from your area all the way out to Joe’s Cars? (Mark addressed the question to Mr. Quinto) Stoney Quinto asked, do you want me to responded in order or out of order? President Oliver said, that was a direct question. You are in order. Stoney Quinto said, alright, thank you. I don’t know the specifics because I didn’t do a Freedom of Information request as to how they were zoned. I know the Carpenter property is a residential house. Then I believe Mr. Carpenter come in and there were some changes that you all did on that. I don’t believe now, I have to go back and you would have to check your records, that was ever zoned Business B. I think they went to the Board of Zoning appeals or something and 12 they did a variance. (There is a lot of papers wrestling, so some of what is said in inaudible) From 1959 to approximately 2006 we were Business B. That’s my main argument. Mark Miller said, so Mr. Quinto and several other auto sales lots predominately along Morgantown Avenue were non- conforming uses leading to a discussion and revision of the zoning code. Effective May of this year, auto sales in Neighborhood Mixed Use are conditional uses. So, in the past as Mr. Quinto stated, if he would for some reason loose his business license or whatever for that year, he would have lost his grandfathering. As it is now, that is not the case. Rezoning this to Main Corridor Commercial would not afford him any other. It’s a conditional use in Main Corridor just as it is in Neighborhood Mixed. Stoney Quinto asked, could I come back in order to follow up with what you are saying is really not entirely correct? Would I be back in order to come before the microphone? Mark Miller said that is up to Bill. Stoney Quinto said, Mr. President. President Oliver said yes. Stoney Quinto added, Mr. Miller has mentioned something about this license that is leaving one impression but it is a dual thing. Could I come back in order? President Oliver said no, we already had chance. We are just going to move on with this a little bit now. Thank you though. Stoney Quinto said o.k., thank you. Mark Miller said, just to clarify, I’m looking right here and automotive sales are a conditional uses in Neighborhood Mixed Use and automotive sales are conditional uses in Main Corridor Commercial. That is what I was referring too. Staff recommends that the request be processed according to the Planning and Code requirements and that a recommendation be made to City Council. President Oliver added, the only thing that I do want to note on this letter. I mean, I hate to say it but, when I get letters like this I really try to look at them hard to see what is going on with it. When you look at the map, gentlemen. If you look at parcel 112, 98, 102, 101, a Mr. Gallucci and Aimee Everly, and then if you go up one more parcel to the 100, and even 99, those people are not on this (the petition). There are only two people actually on this list in this rezoning which is parcel 112 and directly behind that that are actually on this list. I mean I know that is somewhat irrelevant but when you get a list with 40 some names on it, I want to know actually how many are totally affect by it which would only be two. Four for and two against. Unidentified man said, I received a letter. President Oliver explained, you will receive a letter if you are within so many feet of a rezone but the rezone would only effect, other than Stoney’s parcels, 103 through 110. It would only affect six other parcels in this rezone. Your parcels out here would not be rezoned. I just want to see how many of these six people that were going to be rezoned were on this list is what I was asking. Mark Miller added, there is nobody being rezoned beyond Mr. Quinto. President Oliver said right, Mr. Quinto. I am just saying right there in that boundary area. Mark Miller said, o.k., I just wanted to make sure you knew. 13 President Oliver asked for Commissioners questions or comments. Commissioner Parker asked, do we not have the same situation we had in the last case? I don’t see where we rezone a portion of this and we don’t rezone the whole thing. President Oliver said correct. Commissioner Parker asked, Mark, have there been any substantial changes or uses in the neighborhood since May of 2014 when we last heard this? Mark Miller said, not that I am aware of. Commissioner Parker asked, have there been any substantial changes since 2010 when it was heard the first time? Mark Miller said, the Gateway Connector was mentioned in Kathy’s staff report but I don’t know if there has been any substantial increase in traffic directly relating to that. Commissioner Parker said, and there is the Palatine Park redevelopment but that is somewhat removed. Mark Miller added, right, right. President Oliver said, and Eddie on your point, Stoney owns those properties. I don’t see why you don’t just ask John and Rose Gallucci and Aimee Everly to go ahead and get into that. Just take it to Alta Vista and Morgantown Avenue. Commissioner Greene asked, those properties are on Morgantown Avenue, right? President Oliver said, one is on Morgantown and one is located on Alta Vista. 101 is located on Alta Vista. Parcel 102, Mr. Gallucci’s house is located on Morgantown Avenue. Commissioner Greene said, I would like to make a motion. Based on the findings provided by the staff, I make a motion that we recommend a denial of the zoning request to City Council. President Oliver asked if there was a second. Commissioner Weber said, I second that. Motion carried 8-0 President Oliver excused everyone that was here for the Stoney Quinto request. Stoney Quinto said, Mr. Sansalone has a job coming up because I am going to file a writ of certiorari. PUBLIC HEARINGS TO SET FOR November 18, 2015 None 14 NEW BUSINESS 1. Election of a new Planning Commission Vice President. President Oliver asked for a motion for a vice president. Commissioner Pitman nominated Commissioner Jamie Greene Commissioner Straight seconded the motion Commissioner Weber motioned to closed the nominations Motion carried 8 -0 2. Resolution of support for the Local Redevelopment Plan for the Reserves of Fairmont. Mark Miller said, back in April, a group came to us a spoke about some high-quality single family housing in the Maple/Ogden area. They have changes their location a little bit to include the Testa property which is in behind Windmill Park. They have asked for a new resolution. What this does is it just provides a little bit of teeth moving forward for their accusation of tax credits. 3. Welcome Ryan Majic to the Planning Commission. President Oliver said, Aaron Majic, the old Vice-President, has moved to BZA which nice for him. He’ll get to branch out and see different areas. I know he is interested in City politics. I think that is perfect for him. Congratulations to Aaron for BZA and congratulation to Ryan Majic for stepping on board with us. CITIZENS PETITION None. OTHER BUSINESS Commissioner Comments: Commissioner Weber said I have already said everything I needed to say. Commissioner Richardson said, anything I needed to say, I transmitted to Dan. Commissioner Majic had no comment. Commissioner Greene said, no thank you. Commissioner Straight said, I am just tickled to be here. Commissioner Pitman said, I would like to welcome Ryan aboard and sorry to see his brother go but what better replacement. Commissioner Parker welcomed Ryan Majic President Oliver said, I really appreciated the point the Commission Parker made that when the Comprehensive Plan went into effect why did he (Mr. Quinto) not argue it. It tried to address it but then went way off into left field. Commissioner Parker added, if the Plan was illegal, that was the time to raise the concern. Its ten years old now and I think you have an argument now that that has been waved. I understand that he is very frustrated by these proceedings and the results that he gets but with no changes in the situation I don’t know how we all of a sudden say o.k. There is something to be said for supporting a position once taken. It was well founded in the beginning and if there is nothing new to change it then why change it. 15 Commissioner Weber said, we have asked him twice before what he intends to do with the property. He says it’s his right not to say. I don’t care what he wants to do with it but the zoning is the zoning. President Oliver said, it’s always helpful. When that lady said she wants to build storage buildings. It does make sense there. But we are not legally allowed to ask her but if she wants to disclose that’s great but we are not legally allowed to ask what is going to be built there. One of the things he asked me, was I on the Board or a part of that thing with Jay. You know I am tired of hearing about the good ole boys club with Bob’s son George, myself, Jeff Faucet and a couple of others. We have been labeled that little group. That was done because 1956 was the last Comprehensive Plan. In 2006, there was so much funding. Grants and money that the City was missing by not having this plan. It was supposed to be written every fifteen years. We put together and I think even Bob (Bob Gribben) was there for 20 or 30 of the meetings. We had over 17 months were we had a meeting every week. The public was welcome to it and Stoney Quinto was invited too. He never showed up to and of them. When you are rezoning the whole city, yes you are going to make a mistake or two. We did with Leonard’s. It happens. Country Club Avenue is paved by the state. Locust Avenue is paved by the state. Fairmont Avenue is paved by the state. Those are state highways. Those are not ours. So yes, they should be what they are. It is state highway. Stoney is in the middle of a road that it makes no sense. Now do I think we possible looking at taking Morgantown Avenue up both sides and where Majic Laundry Mat, Woody and all the way up. If you look at it, the houses on that block are a little part of that. The most part of that is businesses. I think we look at that. I think we revisit Locust Avenue. I think we revisit Fairmont Avenue. We revisit Country Club Road. Those state maintained roads, even Morgantown Avenue and East Park, we need to hit them. We need to see if we are stopping businesses from coming to that area but at the same time we have to watch the resident area and behind. When I bought my house on Gaston Avenue, long John Silvers was behind me and Elite Cleaners. I knew what I was buying. These people that are out there right now complaining about tractor trailers, these businesses have been out there forever. Stoney Quinto bought that parcel a hundred years ago. He knew what he was getting. If he wanted to get bigger, buy the whole block or move, very simple. Mark Miller said he did have that discussion with him but he wasn’t interested in looking at Morgantown Avenue. I suggested that what if the Planning Commission looks at that whole area. He was only concerned with his parcels. Commissioner Parker said, he has not taken any action to approach the other businesses on Morgantown Avenue. Commissioner Straight said, he brought Chuck Coniff in on it the last time and Chuck said he’d never be involved with him again. He has lost his vote and the people surrounding him. President Oliver said, if a State make a law, a city can take the law and make it more stringent. Code goes by the most stringent law whether a State or City. Yes, a hundred years ago maybe we didn’t need planning and zoning. Things change. Fairmont has changed. We have to watch what goes in where and that it is done right. Commissioner Straight said, it was back then that if your horse got on my yard and did his business, I shot him. Times change. Staff Updates: None. ADJOURNMENT President Oliver asked for a motion to adjourn. Commissioner Straight made a motion to adjourn. Commissioner Weber seconded it. 16