Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 PM March 15, 2017 Morgantown Municipal Airport – ARFF Building MEMBERS PRESENT: Leanne Cardoso, Colin Wattleworth, Harrison Case, and Jim Shaffer MEMBERS ABSENT: George Papandreas STAFF: John Whitmore, AICP I. CALL TO ORDER AND ROLL CALL: Cardoso called the meeting to order at 6:30 p.m. and read the standard explanation of the how the Board conducts business and rules for public comments. II. MATTERS OF BUSINESS: A. Minutes for the February 15, 2017 hearing. No corrections noted; minutes approved as presented. III. UNFINISHED BUSINESS: IV. NEW BUSINESS: A. CU17-02 / Morgantown Flour & Feed Co. / 156 Clay Street: Request by Kristin Elek, on behalf of Morgantown Flour & Feed Co., for approval of a conditional “Restaurant, Private Club” use at 156 Clay Street; Tax Map 28, Parcel 38; B-4, General Business District. Whitmore presented the Staff Report. Cardoso recognized Martin Elek of 1133 Burwood Drive who explained the restaurant seats a total of 100 with 15 of those seats located at the bar. Elek noted the restaurant is located in an area where other establishments have private licenses and the addition of liquor would help them remain competitive and the drinks would also accommodate the menu. Cardoso asked Elek if he had reviewed the requirements to maintain a restaurant private club status. Elek confirmed. Cardoso asked what has been done with the menu to ensure the 60/40 requirement is met. Elek explained the establishment is built as a restaurant and not as a bar and noted the menu is extensive with a certain price point that does not exceed $33.00. Elek stated the business plan for the restaurant is built on food alone and does not include alcohol. Elek stated the hours of operation will not go past midnight. Morgantown Board of Zoning Appeals Page 1 of 14 March 15, 2017 Minutes Cardoso asked Elek to elaborate on the chef that was hired. Elek stated Chef Seth is a graduate of Cordon Bleu and was previously a chef for Nemacolin Woodlands. Elek noted that Chef Seth will eventually become a partner once the restaurant is established and running efficiently. Cardoso referred to Elek’s wife and understood that she had past restaurant experience. Elek confirmed and stated his wife had past experience with the restaurant business which included wait staff and some management. Elek explained that he and his wife have a passion for the restaurant industry and have enjoyed restoring the building to an original look and feel. Wattleworth asked if the conditions have been reviewed and understood if the petition is approved. Elek confirmed. Cardoso asked if the restaurant would open regardless of the Board’s decision. Elek confirmed. Wattlworth asked if employees have already been hired. Elek confirmed and stated that six chefs, three dishwashers and nine servers have been hired. Shaffer asked if the petitioner felt the code was putting him at a competitive disadvantage. Elek confirmed. Case inquired about the lunch hours listed in the conditions and asked if this would be a hardship to maintain. Elek expressed they would like to be closed on Monday’s if they had the option in order to allow Staff to regroup. Elek explained the original concept of the restaurant involved dinner only but after spending time on the rail trail they realized lunch would be beneficial. Wattleworth asked Board members if days and hours of operation could be adjusted to allow for the establishment to be closed on Monday’s. Whitmore stated that could be done within the motions to approve the petition. Case inquired if lunch could be at the discretion of the establishment. Wattleworth asked for further explanation on why the condition involves lunch hours. Whitmore explained that including the lunch hours basically establishes a restaurant as a restaurant use as opposed to being open only at night. Cardoso explained the lunch hours are listed as a condition have been established as a precedent over time and has helped many restaurants to meet the 60/40 requirement. There being no further questions or comments by the Board, Cardoso asked if anyone was present to speak in favor of or in opposition to the conditional use petition. There being no public comments, Cardoso declared the public hearing portion closed and asked for Staff recommendations, which were read by Whitmore. Case expressed the establishment meets the requirements for a bona-fide restaurant based on the information presented. Wattleworth agreed and expressed favor in the freezer shown at the site visit. Cardoso expressed the petitioner has done a lot of preparation and noted the petitioner will be going forward with the restaurant no matter the decision of the Board. Morgantown Board of Zoning Appeals Page 2 of 14 March 15, 2017 Minutes Wattleworth expressed he is comfortable with granting the request as he is confident they will be opening soon. Cardoso agreed and noted that $10,000 worth of merchandise has already been purchased in preparation for the opening. Wattleworth made a motion to grant a waiver to the one-year bona-fide restaurant for CU17-02; seconded by Case. Motion carried unanimously. Cardoso noted the condition on requiring lunch hours is to help maintain the 60/40 requirement but didn’t see a problem with eliminating the lunch one day of the week. Discussion continued regarding the conditions on the lunch hours and it was agreed upon that lunch hours are needed but not necessarily seven days a week. Cardoso invited the petitioner to the podium and asked if five days of lunch per week, without specifying the days within the conditions, would be acceptable. Elek agreed and noted this would allow them to give Staff a full day off on Monday’s and not staff a lunch on Tuesday. Case asked if brunch would be served on the weekends. Elek confirmed and stated that brunch is a missed market in Morgantown. Board members agreed to change the wording in the conditions to include “five days a week” instead of “Monday through Friday”. Shaffer made a motion to find in the affirmative for the all the Findings of Facts for CU17-02 as revised; seconded by Wattleworth. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 1 – Congestion in the streets is not increased, in that: This location has been operated as a restaurant for several years with no change in patterns proposed from previous restaurant occupants from the subject site. The Wharf parking garage is located approximately 600 feet from the proposed “Restaurant, Private Club” use. Finding of Fact No. 2 – Safety from fire, panic, and other danger is not jeopardized, in that: The establishment and building will be required to meet all related life safety building and fire code provisions. Finding of Fact No. 3 – Provision of adequate light and air is not disturbed, in that: The subject structure already exists and should therefore not affect present light distribution and airflow patterns. Finding of Fact No. 4 – Overcrowding of land does not result, in that: No expansion of the existing building is proposed that would increase its building footprint or building height. Finding of Fact No. 5 – Undue congestion of population is not created, in that: Maximum occupancy will be regulated by related building and fire code provisions. There is no residential use proposed as a part of the conditional “Restaurant, Private Club” use. Morgantown Board of Zoning Appeals Page 3 of 14 March 15, 2017 Minutes  Finding of Fact No. 6 – Granting this request will not create inadequate provision of transportation, water, sewage, schools, parks, or other public requirements, in that: The subject conditional “Restaurant, Private Club” establishment will be located in a space that has already been used and occupied as a restaurant and should therefore not require any further public services or utilities. Finding of Fact No. 7 – Value of buildings will be conserved, in that: The location of the proposed “Restaurant, Private Club” establishment has been occupied by various restaurant uses for several years, which do not appear to have adversely impacted property values within the immediate area. Finding of Fact No. 8 – The most appropriate use of land is encouraged, in that: The location of the proposed “Restaurant, Private Club” has been occupied by restaurant uses for several years and is located in close proximity to other various restaurants uses within the immediate area. Shaffer moved to grant conditional use approval for Case No. CU17-02 with the amended conditions; seconded by Wattleworth. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the petitioner must maintain compliance with all supplemental regulations set forth in Section 1331.06(27) of the Planning and Zoning Code. 2. That the petitioner must obtain permitting as a “restaurant” from the Monongalia County Health Department under the Monongalia County Clean Indoor Air Regulations. 3. That the “Restaurant, Private Club” use shall be limited to the interior design and identified areas of the subject building as illustrated on the drawings submitted with the application and reviewed and approved by the Board of Zoning Appeals. Any expansion of the conditional use or significant deviation from said facility layout design, operations, or proposed dining experience must first be approved by the Board of Zoning Appeals. 4. That, to ensure that the petitioner’s business description and plans are executed as described and considered in granting the one-year “bona fide restaurant” waiver, the subject “Restaurant, Private Club” use must: a. Be open to the general public a minimum of 11:00 a.m. to 1:00 p.m., five days a week, for the purpose of serving lunch as generally described in the menu submitted with the petitioner’s conditional use application. 5. The petitioner shall voluntarily submit all necessary financial information to the City for the subject establishment following its first twelve (12) months of operation as a “Restaurant, Private Club” use to ensure compliance with Section 1331.06(27)(e) provisions, which requires the sale of food and non-alcoholic beverages to comprise a minimum of 60 percent of total gross sales of all food and drink items in each calendar month. 6. That any regulated signage shall be reviewed and approved by the Downtown Design Review Committee and the Planning Division prior to building permit issuance for same. 7. That the beneficiary of this conditional use approval is Morgantown Flour and Feed Co. LLC, which may not be transferred without prior approval of the Board of Zoning Appeals. Morgantown Board of Zoning Appeals Page 4 of 14 March 15, 2017 Minutes Cardoso reminded Mr. Elek that the Board’s decision can be appealed to Circuit Court within thirty days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. B. V17-01 / Starbucks / 51 Donahue Drive: Request by Donald D. Evans of ADM Signs, on behalf of Starbucks, for variance relief from Article 1369 concerning signage; Morgan District, Tax Map 4, Parcels 18.5, 19 and 20; B-5, Shopping Center District. Whitmore presented the Staff Report. Cardoso recognized Donald Evans of ADM Signs in Pittsburgh, PA, on behalf of Starbucks, who provided further explanation of the variance request. Evans noted that additional signage is necessary to operate a drive thru window and that directional signage is necessary for efficient flow thru the parking lot. Cardoso stated she would like to see what was requested and what the code permits to get a visual comparison. Evans referred to the Staff report and provided further clarification on the proposed signs and stated the 20ft. circle sign shown is equivalent to the what code allows. Shaffer noted that monument signs at this location were previously mentioned when the project was being reviewed. Cardoso asked if a monument sign had been requested for this area previously. Whitmore clarified that the development is multi-tenant and that the monument sign provision in the code requires that multi-tenant buildings use a directional sign, limited to 18 square feet or six feet tall, by three feet wide. The total area requested was 32 square feet which required variance approval. Shaffer expressed that he expects more sign variances for this area in the future and would like to consider that when reviewing the proposed petition. Cardoso agreed and stated that what is decided on the current petition will set the precedent for future variance petitions in this area. Evans noted the Starbucks will be different as it is located on the end of the building and will have a drive thru. Shaffer asked how lightning will be staged. Whitmore explained approval for the lighting plan will be reviewed and through the building permit process. Wattleworth asked if Starbucks would have a spot on the monument sign. Evans confirmed and provided Board members with an example of how that sign will look. Wattleworth reminded the Board members that the developer requested the project to be within the City limits and had the opportunity to avoid review and approval processes. Shaffer expressed favor in the petitioner reducing square footage where possible and noted the site is difficult for signage. Cardoso agreed and noted the elevation and topography are a challenge. Morgantown Board of Zoning Appeals Page 5 of 14 March 15, 2017 Minutes Wattleworth noted the site is tight in space and does need signage to direct vehicular flow. Evans provided further clarification on how vehicles will enter and exit the drive thru. Whitmore referred to the site plan in the staff report for further clarification. Cardoso referred to the Staff Report and asked if the “Starbucks” sign on the side of the building would be illuminated. Evans confirmed and stated all signs would be illuminated with low voltage LED modules and noted some signs would be located inside the windows. Cardoso inquired if the word “Starbucks” is needed along with the logo on the West side of the building where the drive thru is located. Evans stated the purpose for the logos is to try and advertise to vehicular traffic along 705 while the word “Starbucks” is at eye level. Cardoso expressed she isn’t concerned about the directional signage but rather the signage used for advertising. Cardoso suggested the Board explore all options for the proposed signage as this will set a precedent for future variance petitions. There being no further questions or comments by the Board, Cardoso asked if anyone was present to speak in favor of or in opposition to the conditional use petition. There being no public comments, Cardoso declared the public hearing portion closed. Shaffer expressed favor in the request due to the drastic elevation. Cardoso agreed but noted all options need to be explored and asked if the logo and the word “Starbucks” are both necessary. Wattleworth stated that the developer is working with corporate headquarters who will want to see the word “Starbucks” on the building. Cardoso noted that multiple corporations had previously conformed to the zoning ordinance. Wattleworth expressed the developer has tried to reduce the signage in comparison to other places that have more signage than what’s proposed. Case suggested added wording in the Findings of Facts to include reasons for approval included store being located on the end unit. Discussion amongst Board members ensued regarding the building being located on the end and the need for directional signage for drive thru purposes along with additional square footage needed due to change in elevation from 705. Cardoso expressed favor in the design and the aesthetics but felt it isn’t necessary to have the word “Starbucks” along with the logo located on the West side of the building. Wattleworth asked if there were any concerns with the illumination. Shaffer noted the development will be a “bubble if light” in that area and did not have any issues with illumination. Wattleworth expressed favor in sign illuminations and noted that variances may not even be necessary with upcoming revised sign regulations. Cardoso stated it is the Board’s job to adhere to the ordinance and to ensure a full review and discussion are done prior to granting variance relief. After further discussion, Cardoso asked for Staff recommendations, which were read by Whitmore. Morgantown Board of Zoning Appeals Page 6 of 14 March 15, 2017 Minutes Board members decided to include language to Findings of Fact 2 to specify the location of the property and that additional signage is appropriate for the relief requested. Shaffer made a motion to find in the affirmative for the all the Findings of Facts for V17-01 as revised; seconded by Case. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 1 – The variance will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because: Additional sq. footages, additional menu signs and additional directional signs of larger sq. footage, proposed material, and illustration will significantly increase the public health, safety and welfare and in no way will hinder those aspects whatsoever. Finding of Fact No. 2 – The variance arises from special conditions or attributes which pertain to the property for which a variance is sought and which were not created by the person seeking the variance, because: Due to the location of property in respect to Rt. 705 and traffic traveling at speeds of 55 mph as well as the ability for this Starbucks to maintain its uniformity as used worldwide to create the same balance and identity the public is use to seeing. Allowing this variance in full will ensure a continuity of the Starbucks space with relation to the public and its continued safety. This is a multi-tenant development so all aspects of this request will help to properly identify and address the specific nature of Starbucks business to those seeking its location. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: It will ensure the safest use of this multi-tenant development. As the proper direction of traffic flow and order to which traffic will need to flow entering the premises and while on premises in order to smoothly enter and exit properly with the least amount of traffic hazards, backups, or improper flow of vehicles, creating a safer environment. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: Increased sizes, logos, illumination, and additional “menu” type signs all culminate to create the utmost safe environment to all public involved whether they are customers or just pasersby. Our intent is to serve the public without creating any hazards for the public as a whole. Wattleworth moved to approve Case No. V17-01 without conditions; seconded by Case. Motion carried unanimously. Cardoso reminded Mr. Evans that the Board’s decision can be appealed to Circuit Court within thirty days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. C. V17-02 / CraftBuilt Homes, LLC / 102 Forest Drive: Request by Kurtis Clinton of CraftBuilt Homes, LLC for variance relief from Article 1333.05 to encroach into the minimum setback standard; Tax Map 54A, Parcel 41; R-1A, Single-Family Residential. Whitmore presented the Staff Report. Morgantown Board of Zoning Appeals Page 7 of 14 March 15, 2017 Minutes Cardoso recognized Kurtis Clinton of CraftBuilt Homes, LLC, 714 Venture Drive, who provided further explanation of the request and noted the variance is to allow for a rear deck. Clinton stated that the deck will be constructed even if the variance is denied and the intent is to create a greater outdoor living space. Clinton noted that the neighborhood covenants allows for a 15 foot setback, although they recognize the City code has to be followed with a setback of 25 feet, and stated the current lot and lot next to it is vacant. Clinton stated the property owners are present and noted they have spoken with neighbors to inform them of the request. Shaffer noted the request would not be a hardship if they planned to build the deck without the variance and asked why relief if needed from the code. Clinton explained the porch will be built but covered and because of that a variance relief is necessary as it is considered attached to the house. Wattleworth referred to the Staff report and states a variance is needed even if the deck is left uncovered. Whitmore explained a variance of two feet would be needed if the deck is left uncovered as it is then considered part of the main structural wall to the house and not considered a porch. Case referred to a letter of opposition in the Staff Report and asked if the petitioner had consulted with that property owner. Clinton referred the question to the property owners and stated the lot was purchased from the person writing the letter of opposition and that same person also owns the lot adjacent to the proposed project. The property owners stated they had not met with the person writing the letter of opposition. Wattleworth referred to the rear elevation asked where the fireplace vent would be located. Clinton stated the vent would be located in the covered portion of the deck. Cardoso referred to the letter of opposition written by Sylvia Cooper and asked Clinton for response to the “design of the home would clash with the established aspect of Forest Drive and the Oakview Subdivision”. Clinton referred the question to the property owners and felt the question isn’t relevant to the variance request. Cardoso referred to the letter of opposition and asked for a response in “the home being a safety concern with the location of the driveway”. Clinton referred the question to the property owners and again stated he didn’t feel the question is relevant to the variance request. Shaffer asked why the variance is not a self-imposed hardship. Clinton referred that question to the property owners and stated the variance is based on the design of the plan that was purchased prior to learning of the City ordinance. Clinton recognized the variance is large but noted relief has been granted before in the Suncrest area. Cardoso asked what makes this specific piece of property special to require a variance. Clinton noted the property is square and located on a corner lot. Cardoso asked if the exact same home could be built without the back porch. Clinton confirmed but noted the property owners purchased the design for the rear deck area. There being no further questions or comments by the Board, Cardoso asked if anyone was present to speak in favor of or in opposition to the variance petition. Morgantown Board of Zoning Appeals Page 8 of 14 March 15, 2017 Minutes Cardoso recognized Robert Griffith of 106 Forest Drive who stated there is no reason to grant the variance other than the owners want a bigger house than what is allowed. Griffith stated that prior to annexation, the Oakview Subdivision was very strict in following the covenants, and it would be a shame for the City to grant this variance. Griffith noted the former property owners strongly object to the request as there is no good reason for the request other than building a bigger house than allowed. Cardoso recognized Mary Davis of 106 Forest Drive who stated she feels the setback should be on the side and not the rear due to the orientation of the house on the lot. There being no further public comments, Whitmore read the letter of opposition by Sylvia Cooper into the record. Cardoso suspended the five-minute rebuttal to allow for the property owners to explain the petition. Cardoso recognized Lauren Krupica, property owner for 102 Forest Drive, who stated she had met with five (5) neighbors who have no problem with the variance property. Krupica acknowledged the letter written by Cooper and respectfully disagreed with the content in the letter. Krupica stated if the variance is not granted then it will come with great cost to them in working with the architect to create a different design. Krupica expressed the porch will be set back the same amount whether the porch as a roof or not and stated she did not believe a porch with a roof will foreclose or limit the desirability or profitability of Ms. Cooper’s land. Krupica noted the variance is for 6 feet 8 inches wide and not going to track the entire length of the property line. Krupica expressed the house will fit with the current aspect of the neighborhood and feels the points made by Ms. Cooper are irrelevant to the variance request. Krupica appreciates the safety concerns brought to their attention and stated they will work with the developer to ensure the site lines are appropriate for ingress and egress. Krupica stated they would ensure the builders do not mess up the storm drain as they are essential to the neighborhood and respectfully requests the granting of the variance. Cardoso recognized Troy Krupica, property owner of 102 Forest Drive, who stated when they purchased the design, they were operating on the Oakview Subdivision covenants with the 15 foot setback and therefore did not seek to build a bigger house than what’s allowed. Krupica stated it would be a significant hardship to have the architect redesign the porch with the fireplace. Krupica stated the safety concerns with the driveway and the storm drain are irrelevant to the request. Wattleworth asked why the house is designed to face Poplar Woods instead of Forest Drive. Krupica explained the property is a corner lot and the position is a personal preference and they were attracted to the way the windows were designed towards Forest Drive. Cardoso offered Clinton a chance for rebuttal. Clinton explained the house was orientated towards Poplar Woods for aesthetics reasons and to accommodate the slope of the land to allow for a rear walk out basement. Clinton restated the design was purchased according to the Oakview covenants of a 15-foot setback and they did not realize there was a City Code setback. Cardoso declared the public hearing portion closed and Whitmore read the Staff recommendations. Morgantown Board of Zoning Appeals Page 9 of 14 March 15, 2017 Minutes Cardoso asked if the house would fit into the 15-foot setback listed in the Oakview covenants. Whitmore stated the rear wall of the structure would be within that setback but the issue would still be with the porch. Whitmore noted if the porch was uncovered then the plan would have been approved and not be for review. Cardoso referred to Finding of Fact 2 and stated if a design is chosen that does not fit on a lot then the problem was created by the owner. Cardoso expressed the lot is not unique as it square and flat and therefore doesn’t compare to past variances that have been granted. Case asked if a height variance would be necessary. Whitmore stated there is a potential for a height variance in the future. Case suggested giving the petitioners additional time to speak with the neighbors since the petitioners will be back before the board for the height variance. Shaffer stated he did not see how the request is not a self-imposed hardship after listening to the petitioners and all discussions. Cardoso noted that the only thing that made her think that it was not self-imposed hardship was after learning about the setback in the covenants. Case asked what the two (2) lots contained prior to selling the property. Whitmore explained that one (1) lot had a single-family dwelling that had a casualty event and the other lot was used as a side yard. Wattleworth asked for the minimum front setback in the R-1A District. Whitmore explained the minimum to maximum is 25 to 30 feet in the R-1A District. Wattleworth asked why a front yard setback is not needed and then realized it is due to the front porch. Whitmore explained there is also a provision that allows for an average setback of what the other houses are on the block. Wattleworth asked if the house could be moved to the front to allow for additional room in the rear. Whitmore explained the house is at 25.5 foot so would only have a half foot to move forward. Wattleworth referred to the plan and asked if the cost was $10,000 to make alterations. Krupica confirmed and stated that any alterations would cause a financial hardship and noted that when the plan was purchased he was under the assumption of a 15-foot setback all the way around. Case asked if the opposition from the neighbors is swaying the Board’s decision. Wattleworth stated the opposition does not carry weight with him personally. Shaffer agreed. Discussion ensued with Board members and Cardoso noted the Board is not allowed to consider the financial decision. Wattleworth stated he is not opposed to the covered deck as opposed to the two feet. Case asked if a variance would be needed if 20 feet was purchased from the other lot. Whitmore explained that would require a minor subdivision variance for the remainder of the neighboring parcel and would be a minor issue to be determined by the Planning Commission. Wattleworth noted the petitioner has nott exhausted all options to minimize the variance. Morgantown Board of Zoning Appeals Page 10 of 14 March 15, 2017 Minutes Shaffer referred to Findings of Facts 3 and expressed he did not feel there was an unnecessary hardship. Clinton expressed the letter of opposition from Cooper should be omitted. Cardoso stated that nothing will get taken off the record. Board members decided to go through the Findings of Facts individually. Shaffer made a motion to find in the affirmative for Finding of Fact 1 as presented by the petitioner; seconded by Wattleworth. Motion carried unanimously. NOTE: The following finding was included in the motion. Finding of Fact No. 1 – The variance will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because the rear encroachment request is due to the homeowner wanting to cover the middle portion of the rear exterior decking. That middle portion ends at a distance of 3.7 ft away from the rear lot line. The portion of the deck that will be 3.7 ft. from the property line is measured only to be 6’ 8” wide with the other portions of the covered deck tapering closer to the rear foundation. Granting the variance should not adversely affect the adjacent residents nor endanger the public health, safety, or welfare. Shaffer made a motion to find in the affirmative for Finding of Fact 2 as presented by the petitioner; motion dies for lack of second motion. Wattleworth expressed there are two separate issues which include the covered back deck and the foundation wall. Shaffer noted the separate issues are not what is before the Board. Cardoso made a motion to find in the negative for Finding of Fact 2 as presented by the petitioner because the variance request is not a self-imposed hardship; seconded by Shaffer. Motion carried 3-1 with Shaffer voting nay. NOTE: The following finding was included in the motion. Finding of Fact No. 2 – The variance DOES NOT arise from special conditions or attributes which pertain to the property for which a variance is sought because the conditions for which relief is sought appear to have been self-imposed. Shaffer made a motion to find in the negative for Finding of Fact 3 as presented by the petitioner because there is not an unnecessary hardship; seconded by Wattleworth. Motion carried unanimously. NOTE: The following finding was included in the motion. Finding of Fact No. 3 – The variance WILL NOT eliminate an unnecessary hardship or permit a reasonable use of the land because the variance request appears the hardships identified by the petitioner appear to be unnecessary. Wattleworth made a motion to find in the positive for Finding of Fact 4 as presented by the petitioner; seconded by Shaffer. Motion failed to obtain a majority vote with Wattleworth and Shaffer voting aye and Cardoso and Case voting nay. Case made a motion to find in the negative for Finding of Fact 4; seconded by Shaffer. Motion carried 3-1 with Wattleworth voting nay. Morgantown Board of Zoning Appeals Page 11 of 14 March 15, 2017 Minutes NOTE: The following finding was included in the motion. Finding of Fact No. 4 – The variance WILL NOT allow the intent of the Zoning Ordinance in providing consistent setbacks. Shaffer moved to deny variance request V17-02 based on the negative findings of fact determined by the Board; seconded by Case. Motion carried unanimously. Cardoso reminded Mr. Clinton that the Board’s decision can be appealed to Circuit Court within thirty (30) days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. D. V17-03 / Seneca Village / 709 Beechurst Avenue: Request by Bill Turner of Seneca Center, LLC. for variance relief from Article 1361.03 concerning building materials; Tax Map 15, Parcel 196/197; B-2, Service Business District. Whitmore presented the Staff Report. Cardoso recognized Bill Turner of Pison Development and Matt Breakey with Thrasher Engineering. Turner explained they are trying to keep the architectural designs within the regulations and codes and noted it is difficult and costly. Breakey stated the intent of the project is to create an apartment complex that will tie into the architectural fabric of the area. Breakey explained the upper area of the structural has to set back and therefore have tried to provide more masonry on the front of the building and would wrap the corners of the building. Breakey noted the owner wanted to create a building with massing that is more visually interesting and not just a brick box. Breakey provided further explanation and noted that cementitious panel type siding would be used and that wood could not be used due to the fire codes. Whitmore referred to the Staff Report and noted there are areas on the drawings that aren’t highlighted that would be included in the variance. Breakey provided further explanation by showing the Board members an updated picture on his iPad and noted the owner has gone to great measures to ensure the building fits into the area. Wattleworth asked if they are using the same amount of brick but just choosing to put it on the front of the building instead of all the way around. Turner confirmed and noted they worked with the state and local historic preservation people. Wattleworth asked where the PRT is located in relation to the back of the building. Turner stated they changed the elevations and staggered the floors of the building so there is not an eye level with the PRT. There being no further questions or comments by the Board, Cardoso asked if anyone was present to speak in favor of or in opposition to the conditional use petition. There being no public comments, Cardoso declared the public hearing portion closed and asked for Staff recommendations, which were read by Whitmore. Shaffer moved to approved Findings of Facts for Case No. V17-03 as revised by Staff; seconded by Wattleworth. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 12 of 14 March 15, 2017 Minutes NOTE: The following findings were included in the motion. Finding of Fact No. 1 – The variance will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because: Proposed exterior surface coverings will comply with all applicable building and fire codes and regulations. The architecture style of the exterior walls is being designed, with the assistance of a professional historic preservation specialist, to compliment the aesthetics and character of the adjoining Seneca Center buildings. Finding of Fact No. 2 – The variance arises from special conditions or attributes which pertain to the property for which a variance is sought and which were not created by the person seeking the variance, because: There are no public streets along or heavy traffic related visibility on of the second floors of the east or south façades for which variance relief has been requested. One The facade section facing the Seneca Center is about 8 feet from its exterior wall and is further obstructed from view by the recently constructed sloped roof on the adjoining Seneca Center building. The setbacks of the upper stories from the first story is required on the east façade to provide a window well benefiting the adjoining buildings and on the south façade to provide separation from the adjoining PRT facility. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: This variance will recognize and advance the entire Beechurst Avenue and 8 th Street façades clad in natural materials (i.e., brick), providing a much more pleasing view from the high traffic streets and matching the aesthetic of the adjoining Seneca Center buildings. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The west façade facing Eighth Street and the north façade facing Beechurst Avenue will be completely clad in natural materials (i.e., brick) thereby well exceeding the minimum requirement of natural materials for same; utilizing more natural materials (i.e., brick) for the entire building than required; and, maximizing desired brick architectural vocabulary within the north end of the Beechurst Avenue corridor. Shaffer moved to approve Case No. V17-03 with staff recommended conditions; seconded by Watleworth. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That final cladding materials shall reflect the materials identified on renderings submitted with this variance application on March 10, 2017, and that no portion of the exterior wall façades may be clad in vinyl materials (e.g., vinyl siding, etc.). 2. That the northeast and southwest corners of the building must be wrapped with natural material (i.e., brick) as illustrated on the renderings submitted with this variance application on March 10, 2017. Cardoso reminded Mr. Turner and Mr. Breakey that the Board’s decision can be appealed to Circuit Court within thirty (30) days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. Morgantown Board of Zoning Appeals Page 13 of 14 March 15, 2017 Minutes  E. G & G Rentals / 356-358 Kingwood Street: Request by Lisa Mardis of Project Management Services, LLC, on behalf of G & G Rentals, regarding Article 1373.01 “Nonconforming Uses” and Article 1373.02 “Nonconforming Structures” as it relates to the issue of discontinuation or abandonment. Whitmore stated the petitioner requested this matter be postponed to the April agenda. V. ANNOUNCEMENTS: None. VI. ADJOURNMENT: 8:50 PM MINUTES APPROVED: May 17, 2017 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 14 of 14 March 15, 2017 Minutes