Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 PM May 17, 2017 City Council Chambers MEMBERS PRESENT: Leanne Cardoso, Colin Wattleworth, Harrison Case, and George Papandreas MEMBERS ABSENT: Jim Shaffer STAFF: John Whitmore, AICP and Phillip Avis. 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 March 15, 2017 hearing. No corrections noted; minutes approved as presented. III. UNFINISHED BUSINESS: IV. NEW BUSINESS: A. CU17-03 / Cindy Redmond / 941 Southpoint Circle: Request by Cindy A. Redmond for approval of a conditional “Class 2 Home Occupation” use; Tax Map 42, Parcel 100; R-1, Single-Family Residential District. Whitmore presented the Staff report. Cardoso recognized Cindy Redmond of 941 Southpoint Circle who stated she is retiring from teaching and would like to start a pre-school inside of her home which would only be offered three half days a week. Papandreas asked if the parents would stay with the student during instruction hours. Redmond explained the parents would drop their children off and return to pick them up at the end of instruction and therefore parking wouldn’t be an issue. Redmond noted she would offer the preschool from Labor Day to Memorial Day. Cardoso asked if certification and licensure had been obtained to run the business. Redmond stated she is a certified teacher in the state of West Virginia and she will keep numbers low which is all that is required at this time. Morgantown Board of Zoning Appeals Page 1 of 25 May 17, 2017 Minutes Wattleworth asked if customers were waiting. Redmond stated she has customers waiting but no contracts had been signed yet as she was waiting for approval from the Board to continue with the business. Cardoso asked how she would advertise her business. Redmond stated she would not be doing any outside signage and advertising will be thru word of mouth. Wattleworth asked if this would be an educational environment more so than babysitting. Redmond confirmed and stated she will follow the West Virginia State curriculums. Case asked if there will be an outdoor area to be used during instruction hours. Redmond stated there could be times that the kids would have a snack outside but most activities will take place in the lower level of the house. 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. Cardoso recognized Richard Dumas of 444 Overhill Street who referred to a previous case involving Jones Place and stated it was overturned by the court because the prior decisions made by the BZA were not consistent. Dumas expressed that approving this request will set a precedent in the R-1A zoning district and in order to keep consistency, the City needs to maintain the neighbors as outlined in the zoning. Cardoso recognized Roger Banks of 444 Overhill Street who referred to the previous Jones Place petition and stated that approval of this request will set a dangerous precedent of having businesses in the R-1A neighborhood and asked the Commissioners to vote in the negative for the home occupation petition. Cardoso offered Redmond a chance for rebuttal. Redmond declined rebuttal. There being no further public comments, Cardoso declared the public hearing portion closed and asked for Staff recommendations, which were read by Whitmore. Papandreas referred to the Jones Place petition mentioned earlier and asked for the history of the case. Whitmore stated that current Staff has no recollection of the case and no information is available at this time. Case expressed that it didn’t sound like the Jones Place case has relevance to the issue of whether the current petition meets the qualifications for a conditional use as there isn’t a development or structure being built but rather parents dropping kids off for preschool. Cardoso referred to the Findings of Facts and noted she would have trouble finding them in the negative. Wattleworth stated the precedent that has been set is to vote in favor of petitions that don’t change the character of the neighborhood and expressed favor in the petition. Morgantown Board of Zoning Appeals Page 2 of 25 May 17, 2017 Minutes Papandreas agreed and noted there would be little impact to the neighborhood as there wouldn’t be delivery trucks and added that drop off and pick up times would most likely occur during the working hours. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for CU17- 03; seconded by Case. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 1 – The home occupation will be compatible with residential uses of the dwelling, in that: The entirety of the business will take place in the lower level of the home which, according to the petitioner, is currently unused except for some storage. Finding of Fact No. 2 – The home occupation will not change the residential character of the dwelling, in that: According to the petitioner, the living spaces of the house will be unaffected. Finding of Fact No. 3 – The home occupation will not detract from the residential character of the neighborhood, in that: There will be nothing visible to the neighborhood and the traffic created will be drop-off and pick-up only. The home occupation will be in operation September through and including June. Finding of Fact No. 4 – Congestion in the streets will not be increased, in that: All traffic created by the home-based business, will be drop-off and pick-up at 2 specified times per day, Tuesday-Wednesday-Thursday each week. Papandreas moved to grant conditional use approval for Case No. CU17-03 with staff recommended conditions; seconded by Case. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the petitioner shall observe all related supplemental regulations specified in Article 1331.06(2) et seq. of the Planning and Zoning Code. 2. That services may only be offered at the petitioner’s Class 2 Home Occupation between 8 a.m. and 12 p.m. on Tuesdays, Wednesdays, and Thursdays. Additionally, services may only be offered beginning September 01 through and ending June 30 of each calendar year. 3. That clients visiting the petitioner’s Class 2 Home Occupation use must, to the greatest extent practicable, park their vehicles on the petitioner’s property in existing off-street parking spaces accessed from Southpointe Circle. 4. The adherence with and monitoring of conditions 2.a through 2.c above shall rely upon the review, suspension, and revocation provisions provided in Article 1331.06(2)(d)(i) of the Planning and Zoning Code. 5. That the conditional use approval granted herein is specific to the petitioner and may not be transferred without prior approval by the Board of Zoning Appeals. Morgantown Board of Zoning Appeals Page 3 of 25 May 17, 2017 Minutes  6. If the petitioner, as the sole beneficiary of this conditional use approval, wishes to make changes in the conduct of the business that departs from the description in the application or from any conditions or restrictions imposed by the Board of Zoning Appeals, the holder must obtain prior approval of the Board. Changes include, but are not limited to, days and/or hours of operation, number of clients seen per day, etc. Cardoso reminded Ms. Redmond 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. CU17-04 / Mario’s Fishbowl / 704 Richwood Avenue: Request by Gregory Craddock, on behalf of Have A Bowl, LLC, for approval of a conditional “Restaurant, Private Club” use; Tax Map 30, Parcels 30 and 31; B-1, Neighborhood Business District. With no objections from the Board, the petitioner, or the public, Whitmore presented a combined Staff report for CU17-04 and CU17-05. Cardoso recognized Gregory Craddock of 743 Louise Avenue who stated he is representing on behalf of himself and four other former employees of Landmark Adventures, LLC who will be taking over the business and have created “Have A Bowl, LLC” and will carry on the tradition and operate as Mario’s Fishbowl and Crosley’s Banquet Center. Craddock noted that no changes will result in the transaction and transition of the business and as residents and homeowners in the neighborhood they have a deep appreciation for the family and community oriented nature of the neighborhood and fully intend to preserve that with their business practices. Case asked if beer and liquor are currently served in both Mario’s Fishbowl and Crosley’s Banquet. Craddock explained that currently they serve beer and liquor in Crosley’s Banquet and the patio between the two establishments, but only beer is served inside Mario’s Fishbowl and will that will not change. Papandreas asked if all the signage will be taken down that is currently on the walls. Craddock declined and said the signs will remain on the wall. Cardoso noted a letter was submitted to Staff from the former owner, Mark Furfari, and asked Whitmore to read that letter into the record. Papandreas asked if the five former employees would be taking over the Suncrest location as well. Craddock confirmed. 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 none, Cardoso asked for Staff recommendations which were read by Whitmore. Papandreas made a motion to waive the one year bona fide restaurant requirement for CU17-04; seconded by Wattleworth. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 4 of 25 May 17, 2017 Minutes Papandreas made a motion to find in the affirmative for the all the Findings of Facts for CU17- 04; 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: Current business previously approved for conditional use. Proposed sale of liquor in addition to beer and wine is not anticipated to alter existing on or off-street parking demand or vehicular trips generated by Mario’s Fishbowl Restaurant. Finding of Fact No. 2 – Safety from fire, panic, and other danger is not jeopardized, in that: Proposed sale of liquor in addition to beer and wine is not anticipated to alter the character of the landmark establishment. Finding of Fact No. 3 – Provision of adequate light and air is not disturbed, in that: No physical changes to Mario’s Fishbowl building are proposed for the sale of liquor that would alter existing sunlight distribution or airflow patterns. Finding of Fact No. 4 – Overcrowding of land does not result, in that: No physical changes to Mario’s Fishbowl building are proposed for the sale of liquor that would increase the gross floor area of the restaurant or lot coverage or height of the building. Finding of Fact No. 5 – Undue congestion of population is not created, in that: No residential component is included in the proposed “Restaurant, Private Club” use. 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 proposed sale of liquor is not anticipated to increase the demand for public goods, services, or utilities above that already serving the existing Mario’s Fishbowl restaurant establishment and surrounding area. Finding of Fact No. 7 – Value of buildings will be conserved, in that: The proposed sale of liquor in addition to beer and wine is not anticipated to alter the value of the Mario’s Fishbowl building or surrounding B-1 District buildings. Finding of Fact No. 8 – The most appropriate use of land is encouraged, in that: The proposed sale of liquor in addition to beer and wine is not anticipated to alter the existing neighborhood bar and grill landmark of Mario’s Fishbowl. Papandreas moved to grant conditional use approval for Case No. CU17-04 with staff recommended conditions; seconded by Wattleworth. Motion carried unanimously. NOTE: The following conditions were included in the motion. Morgantown Board of Zoning Appeals Page 5 of 25 May 17, 2017 Minutes  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 maintain permitting from the Monongalia County Health Department as a “restaurant” under the Monongalia County Clean Indoor Air Regulations. 3. That, to sustain the establishment’s obligation to remain a bona fide restaurant, Mario’s Fishbowl must be open no later than 11:00 AM Monday through Friday for the purpose of serving lunch. 4. That Mario’s Fishbowl maintain a seating capacity for at least 50 persons and that, with the exception of the existing elongated countertop seating, seats at a bar may not be counted as meeting the minimum seating capacity. 5. That 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 Article 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 the beneficiary of this conditional use approval is specific to Have a Bowl, LLC (DBA Mario’s Fishbowl). Said beneficiary may not be transferred without prior approval of the Board of Zoning Appeals. C. CU17-05 / Crosley’s Banquet Center / 616 Richwood Avenue: Request by Gregory Craddock, on behalf of Have A Bowl, LLC, for approval of a conditional “Restaurant, Private Club” use; Tax Map 30, Parcel 32; B-1, Neighborhood Business District. Papandreas made a motion to waive the one year bona fide restaurant requirement for CU17- 05; seconded by Wattleworth. Motion carried unanimously. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for CU17- 05; 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: Conditional use previously approved. Proposed sale of liquor in addition to beer and wine is not anticipated to alter existing on or off street parking demand or vehicular trips generated by the Crosley’s Banquet Center establishment. Finding of Fact No. 2 – Safety from fire, panic, and other danger is not jeopardized, in that: The proposed sale of liquor in addition to beer and wine is not anticipated to alter the character of the establishment or grounds of Crosley’s Banquet Center. Finding of Fact No. 3 – Provision of adequate light and air is not disturbed, in that: No physical changes to the Crosley’s Banquet Center building are proposed for the sale of liquor that would alter existing sunlight distribution or airflow patterns. Finding of Fact No. 4 – Overcrowding of land does not result, in that: Morgantown Board of Zoning Appeals Page 6 of 25 May 17, 2017 Minutes  No physical changes to the Crosley’s Banquet Center building are proposed for the sale of liquor that would increase the gross floor area of the Banquet Center or lot coverage or height of the building. Finding of Fact No. 5 – Undue congestion of population is not created, in that: No residential component is included in the proposed conditional “Restaurant, Private Club” use. 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 proposed sale of liquor in addition to beer and wine is not anticipated to increase the demand for public goods, services, or utilities above that already serving the existing Crosley’s Banquet Center establishment and surrounding area. Finding of Fact No. 7 – Value of buildings will be conserved, in that: The proposed sale of liquor in addition to beer and wine is not anticipated to alter the value of the establishment building or surrounding B-1 District buildings. Finding of Fact No. 8 – The most appropriate use of land is encouraged, in that: The proposed sale of liquor in addition to beer and wine is not anticipated to alter the existing catering venue of Crosley’s Banquet Center. Papandreas moved to grant conditional use approval for Case No. CU17-05 with staff recommended 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 maintain permitting from the Monongalia County Health Department as a “restaurant” under the Monongalia County Clean Indoor Air Regulations. 3. That Crosley’s Banquet Center maintain a seating capacity for at least 50 persons and that seats at a bar may not be counted as meeting the minimum seating capacity. 4. That 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 Article 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. 5. That the beneficiary of this conditional use approval is specific to Have a Bowl, LLC (DBA Crosley’s Banquet Center). Said beneficiary may not be transferred without prior approval of the Board of Zoning Appeals. Cardoso reminded Mr. Craddock 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 Morgantown Board of Zoning Appeals Page 7 of 25 May 17, 2017 Minutes related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. D. V17-06 / Snyder / 901 Hawthorne Avenue: Request by John and Betty Snyder for variance relief from Section 1333.04 to encroach into minimum setback standard; Tax Map 15, Parcels 4.1 and 6; R-1, Single-Family Residential. Whitmore presented the Staff report. Cardoso recognized Betty Snyder of 901 Hawthorne Avenue who provided further explanation on the request and noted they would be preparing the house for retirement and would like to have a lower level floor on one level to provide more living space. Snyder explained the land is slightly sloped and therefore they would need to build the addition to the South and the East in order to remain level with the land. Cardoso referred to the letter written by the Snyder’s in the Staff report and asked if they wanted the addition for one level living space. Snyder confirmed and explained the structure had been added to in the past and in order to keep the existing roof line they have to work in a constrained fashion to make sure it looks nice on the outside. Cardoso asked if other plans were reviewed to try and stay within the City Codes and Ordinances. Snyder confirmed and said they considered tearing the house down and rebuilding but there is a slope in the North end of their property which require re-contouring the plans and would add additional steps. Case asked if the City Engineer determined that the site lines were not blocked. Someone in the audience (inaudible) stated the site lines had not been checked yet and explained the property is on a corner lot and does not have sidewalks or any houses beside them. Wattleworth asked if they would be keeping the current line of trees where the addition would be located. Snyder stated she would like to keep the trees. Wattleworth expressed that the trees could conceal and make the addition less noticeable depending on what direction a person would be traveling. Snyder agreed and stated they are visible from above but depends on the angle. Papandreas referred to the meeting packet and asked if the floor plan is current or as proposed. Snyder stated the plan is as proposed and provided further explanation on the plans and noted the master bedroom would be on the bottom floor so there would be no stairs to access that room. Case asked if any communication had been made with neighbors other than the one letter of support in the meeting packet. Cardoso recognized John Snyder of 901 Hawthorne Avenue who stated the expansion was mentioned at the Evansdale Community meeting and said there were no objections to the addition. Snyder stated they would like to improve the look of the house which would help the neighborhood and community look better as well. Morgantown Board of Zoning Appeals Page 8 of 25 May 17, 2017 Minutes Wattleworth referred to the plans provided and asked if the garage would remain. Snyder provided further explanation on the plans and stated they would be removing the garage and would provide a parking area in the rear of the property. Snyder stated they do have an additional lot that could be used as off-street parking if needed. Wattleworth asked if there will be any finished space in the lower level once completed. Snyder stated the lower level is currently a tailgating room in the basement and that will remain the same. Papandreas asked if there are plans to add a garage. Snyder stated they would like to get the living space on all one level first and then may add a garage at a later date depending on if needed. Cardoso noted an email was submitted to Staff from a Wanda and Gunter Franz, and asked Whitmore to read that letter into the record. 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 none, Cardoso asked for Staff recommendations which were read by Whitmore. Papandreas expressed concerns in difficulty in the line of site from Fairfax Avenue. Case agreed and asked if the City Engineer could review and if that could be included as a condition. Whitmore explained the City Engineer would review the line of site after a building permit application is submitted and would work with the applicant if a problem arises. Cardoso referred to Finding of Fact 2 and stated the applicants have a personal reason for the modifications and the financial resources to provide these modifications prior to retirement. Cardoso also noted the topographical challenges. Case agreed and noted the lay of the lot is irregular with a slope and the house was originally constructed as a physician’s office with an added addition. Papandreas expressed the house could be constructed as planned without the need for variances if the game room with the “pool table” room was omitted and asked if this would be a self-imposed hardship. Wattleworth noted the topographical challenges and stated the need for a variance is necessary in order to not have an odd shaped triangular room. Cardoso agreed that the house could be accomplished without the basement but expressed that if they are confined to one level living then there will no longer be adequate use to the upstairs area and the extra room downstairs may be needed. Cardoso expressed the request is practical and not unreasonable. Morgantown Board of Zoning Appeals Page 9 of 25 May 17, 2017 Minutes Wattleworth stated the plan meets the front setback requirement and the room is a direct result from the shape of the lot and a variance is needed. Case expressed that the personal situation of the homeowners, the shape of the lot and the lay of the land does warrant that it is not a self-imposed hardship. Papandreas expressed he didn’t have a problem with the petition but noted the Board had been very strict and consistent in the past on self-imposed hardships. Cardoso agreed and noted that petitions in the past that were denied didn’t have topography issues but rather was a design that was preferred by the petitioner. Case expressed the homeowners had been thoughtful and careful on how the house would fit into the neighborhood by communicating with the neighbors and using a professional that knows the area. Case noted the property value will most likely increase with the additional square footage to the home. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for V17-06; 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: There are no houses or structures to the east side of the property. There are no other property owners to the east and south side as a lot is bordered by Fairfax Drive. 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: The lay of the land in relationship to the existing structure and its present floor plan appears to limit practical modification of the home as desired by the petitioner to enhance accessible livability of the dwelling. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: Current driveway and off road parking to the north side require access upstairs and slope to gain access to main living area. New off road parking and access from Fairfax Drive would allow handicap access. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The irregular topography of the parcel combined with its status as a corner lot, limits future development opportunity to the south and east. The variance would enhance the accessible livability and quality of life use of the dwelling in accordance with the R-1, Single-Family Residential District. Morgantown Board of Zoning Appeals Page 10 of 25 May 17, 2017 Minutes Papandreas moved to grant variance approval for Case No. V17-06 with staff recommended conditions; seconded by Case. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the petitioner may not encroach into the minimum side yard setback any further than 7.25 feet, without prior Board of Zoning Appeals approval. 2. That the proposed addition be reviewed by the City Engineer to ensure the safe stop sight distance at the Hawthorne Avenue and Fairfax Drive intersection is not obstructed as provided under Article 1363.03 of the Planning and Zoning Code. Cardoso reminded Ms. Snyder 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. E. V17-07 / Penn Station East Coast Subs / 51 Donahue Drive: Request by Roger Kirkland, on behalf of Best Subs Too, LLC, for variance relief from Article 1369 concerning signage; Morgan District, Tax Map 4, Parcels 18.5, 19 and 20; B-5, Shopping Center District. Cardoso recognized Roger Kirkland of 51 Donahue Drive who provided further explanation on the request and stated the sign is aesthetically pleasing and granting the variance would give the sign more visibility that would provide for increased success of their business. Papandreas asked if the drawing within the Staff report was sized to scale. Kirkland confirmed and stated the sign is shown as proposed in the development. Case asked if the business is a franchise and if so do they have any requirements on their signage. Kirkland confirmed it is a franchise and explained that the sign proposed is due to visibility issues and noted they have used channel neon in the past but are proposing LED as it is hard to find people that make neon signs currently. Case asked if additional signs will be on the storefront. Kirkland explained there will be a small sign that will hang in the doorway to state they are open and a “no smoking” sign along with hours of operation. Papandreas asked if the light would be lit inside. Kirkland confirmed and stated the sign would be LED. Papandreas asked for an approximate distance from the store front to the road. Kirkland guessed approximately 90-100 feet depending on which direction coming from 705. Cardoso asked if anything will be on the back of the building. Kirkland stated nothing will be on the back of the building. Morgantown Board of Zoning Appeals Page 11 of 25 May 17, 2017 Minutes Cardoso asked if they will have a sign on the directory sign. Kirkland confirmed and stated he had not seen what they will look like yet. Cardoso questioned if the only advertising of the business will be the proposed sign and the directory sign. Kirkland confirmed. 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 none, Cardoso asked for Staff recommendations which were read by Whitmore. Wattleworth expressed that a small sign at that location would not be easily visible. Cardoso agreed and noted the building is far away from the street and the proposed sign is scaled appropriately. Case agreed and noted similar requests have been approved with other businesses within the development. Papandras asked for the status of the new sign regulations that were discussed last year. Whitmore stated the new regulations are still being drafted. Papandreas made a motion to find in the affirmative for all the Findings of Facts for V17-07; seconded by Wattleworth. 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: The proposed sign will be permanently attached to the building according to building code. The sign appears to be consistent with size and scale of the shopping center, the parapet space, and the building’s future tenants. 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: The higher elevation of the building with respect to Route 705 and distance between the building and Route 705 appears to affect signage size considerations. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The proposed wall sign appears to promote higher visibility to customers traveling on Route 705. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The proposed sign appears to be consistent with the size and scale of the shopping center and its future tenants. Morgantown Board of Zoning Appeals Page 12 of 25 May 17, 2017 Minutes Papandreas moved to grant variance approval for Case No. V17-07 as presented without Staff recommended conditions; seconded by Wattleworth. Motion carried unanimously. Cardoso reminded Ms. Kirkland 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. F. V17-08 / Family Dollar / 101 Fieldview Avenue: Request by Edward O. Perman III, on behalf of Perman Engineering Co., LLC, for variance relief from Article 1369 concerning signage; Tax Map 48A, Part of Parcel 15; B-2, Service Business District. With no objections from the Board, the petitioner, or the public, Whitmore presented a combined Staff report for V17-07 thru V17-11. Cardoso recognized Trey Perman of Perman Engineering who stated they would like to construct a Family Dollar but have many challenges due to the odd shape of the lot. Perman referred to the variance request for signage and noted that examples of previously used signage by the vendor for Family Dollar were provided in the Staff report. Perman explained that Family Dollar has always used the largest signs for the front and side of the building but if there are subsequent signs then they could be smaller. Perman referred to the variance request for rear setback standards and noted the lot is triangular shaped and stated if they were to meet the setback requirements then other variances would be necessary such as for parking or sidewalk depth, etc. Perman expressed this variance would be less damaging and they would be able to maintain the integrity of the development. Perman stated they have narrowed the building to a non-prototypical size which has made the building longer and therefore encroached into the rear setback standard. Perman referred to the variance request for driveway access and read aloud an email correspondence from the WVDOH District 4 Professional Engineer that recommended approval for the permit but noted the plans and permits still need to be reviewed by District Management for final approval. Perman stated that due to the small acreage of the site that deliveries will only occur once a week and noted the reasons why a truck would be better off to enter through Luckey Lane as it would be less maneuvering throughout the parking lot. Perman noted deliveries would most likely take place during business hours and would not affect school traffic. Perman stated that if the access was granted for truck deliveries only then they would not need the monument sign and therefore no need for a variance on that sign. Perman referred to the variance request for exterior lighting and stated the lights have been positioned and angled towards the sides and very small tents of candlelight can be seen on Fieldview. Perman noted there is a substantial grade difference from Greenbag Road to the site and therefore no spillage would occur beyond the retaining wall. Wattleworth asked how customers would be prevented from using the truck access. Perman referred to a previous Family Dollar site that was constructed and noted they installed a physical Morgantown Board of Zoning Appeals Page 13 of 25 May 17, 2017 Minutes barrier that a manager would have to remove when delivery trucks needed to enter or exit the site. Case asked which way the delivery truck would access Luckey Lane. Perman stated the delivery trucks would be coming from the Eastern end. Case expressed concerns with the worsening of Luckey Lane but understood the issue of trucks not being able to access via the entrance that was built by the prior developer. Perman stated only larger trucks would need access from Luckey Lane and the smaller trucks can use the main entrance. Case asked if sidewalks have been considered to connect to the neighborhoods to prevent walking along Dorsey Avenue or Greenbag Road. Perman stated they have a six foot sidewalk along the Greenbag side that ties into their sidewalk in front of the store and also the entrance on Fieldview Avenue. Case asked if they would consider extending the sidewalk along the access area to allow for walkability from surrounding neighborhoods to the store. Perman stated it would not be an issue from the proposed drive to the intersection but from the proposed access drive to Fieldview it would be a challenge as there will be a small retaining wall and a ditch in that area. Wattleworth asked for further explanation on the sign variance requested as the petitioner noted the challenge with not be allowed to have a pylon sign. Perman explained that due to the elevation change that additional signage is needed to be visible from Greenbag Road. Perman stated they are open to any type of signage and the standard proposed is what is usually requested by the company. Cardoso expressed the sign proposed is large and would prefer something smaller as it is out of character with signs in Morgantown. Wattleworth referred to the options provided in the Staff report by the vendor and expressed the signage is all too large. Case stated they usually consider surrounding signage on buildings but noted there aren’t any comparisons in the area. Papandreas referred to the options of signage provided in the Staff report by the vendor and expressed concerns with the number of signs requested for the building. Papandreas expressed there wouldn’t be a problem with visibility as the sign will be illuminated and no other businesses with signs surround the building at night. Wattleworth how much the exterior lighting variance would be reduced if they went with a smaller sign. Perman explained there are two parking lot poles that are the cause for the exterior lighting variance and the sign has no effect on that road as it would be minimal. Morgantown Board of Zoning Appeals Page 14 of 25 May 17, 2017 Minutes Case expressed that he doesn’t have a problem with the rear setback encroachment or the external lighting variance requests. Cardoso recognized Eddie Perman, senior design engineer for Perman Engineering, who explained to the Board members that they would not be able to meet ADA standards by constructing a sidewalk along the access areas as requested due to grade constraints. Case asked if they could construct steps. E. Perman stated he could look at the possibility of steps. Cross talk discussion continued (inaudible in parts) with Board members and developers discussing access through Luckey Lane. Cardoso expressed concerns with using a chain as a barrier to prevent access thru Luckey Lane as it could delay traffic while waiting on someone to permit entry. Cardoso also noted that the chain may not be up at all times which would allow for customer access. Cardoso referred to the exterior lighting and noted that it was mentioned that it wouldn’t affect Greenbag Road as much as anticipated and asked for further explanation. Perman explained that they didn’t consider the topography of Greenbag Road as the road is almost higher than the lights on the side of the building. Wattleworth asked if they anticipated more spillage onto Luckey Lane due to the changes in topography. Perman stated the light spillage estimated is accurate to what is proposed. Perman noted that shields could be placed on the poles to prevent some of or all of the light spillage. Cardoso asked if there is any possibility that the spillage would blind oncoming drivers. Perman replied no and stated the lights are LED and there are two of them that would be pointing towards the front of the store. 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 none, Cardoso noted that two emails of opposition were received by Staff from an Angela Carver and Suzie Stapleton and asked for those letters to be read into the record, which were read by Whitmore. Cardoso offered the petitioner a chance for rebuttal. Perman stated it may be a possibility to request to Family Dollar that trucks do not deliver within peak hours. Perman did not know if the Family Dollar will sell alcohol. Cardoso declared the public portion closed and asked for Staff recommendations, which were read by Whitmore. Papandreas asked for further explanation on the signage. Whitmore explained that there would be one monument sign per principal entrance and therefore if secondary access is approved then two access signs would be permitted. Case asked if a monument sign is necessary for the truck entrance and Perman stated they would not have a monument sign at that entrance. Wattleworth noted that the staff report shows a Morgantown Board of Zoning Appeals Page 15 of 25 May 17, 2017 Minutes proposed monument sign at the truck entrance and Perman stated the plan has changed since completing the application and only one monument sign would be needed. Papandreas expressed he would be in favor of exploring other options provided by the Family Dollar vendor to lessen the amount of square footage requested for the variance. Whitmore noted that Staff has recommended denial of the petition with the understanding that the applicant would come back to the Planning Division with signage in conformance with the Planning and Zoning Code or with a master sign plan. Wattleworth asked if the petitioner will have to wait a year to request another variance if denied. Whitmore explained the petitioner would not be able to come back to the Board with the same exact signage plan for one year but could come back with a different design. Discussion continued with Board members reviewing the options provided by the vendor and possible placement of those signs on the building. Whitmore explained the difference between tabling and denying the petition and stated that new Findings of Facts would accompany a new application. Case made a motion to find in the affirmative for the alternative Findings of Facts proposed by Staff for V17-08; seconded by Wattleworth. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 1 – The variance will adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because the extent of requisite variance relief sought does not serve to further the purposes of Article 1369 to minimize the adverse effects of signs on nearby public and private property as the proposed signage increases the visual clutter of the built environment and to the motoring public; insensitively creates excessive commercial messaging near an elementary school; and, compels future commercial messaging by adjoining businesses to exceed sign regulation standards. Finding of Fact No. 2 – The variance does not sufficiently arise from special conditions or attributes which pertain to the property for which the variance is sought and which were not created by the person seeking the variance, because alternate commercial messaging scenarios appear readily available to the petitioner to effectively use signage as a means of communication. Finding of Fact No. 3 – The variance will not eliminate an unnecessary hardship and permit a reasonable use of the land because, alternate commercial messaging scenarios appear readily available to the petitioner to overcome unique characteristics of the site. Finding of Fact No. 4 – The variance will not allow the intent of the zoning ordinance to be observed and substantial just done, because alternate commercial messaging scenarios appear readily available to the petitioner that would either meet maximum sign regulation standards or considerably reduce requisite variance relief. Morgantown Board of Zoning Appeals Page 16 of 25 May 17, 2017 Minutes Case moved to deny variance approval for Case No. V17-08; seconded by Wattleworth. Motion carried unanimously. Cardoso reminded Mr. Perman 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. G. V17-09 / Family Dollar / 101 Fieldview Avenue: Request by Edward O. Perman III, on behalf of Perman Engineering Co., LLC, for variance relief from Article 1347.04(A)(4) to encroach into minimum rear setback standards; Tax Map 48A, Part of Parcel 15; B-2, Service Business District. Case made a motion to find in the affirmative for all the Findings of Facts for V17-09 as revised by Staff; seconded by Wattleworth. 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: The corner of the proposed Family Dollar store building being from 34 feet from the property line as opposed to the minimum 40-foot rear setback standard does not appear to deleteriously impact adjoining private property, the public realm, or the safe and effective use of public roadways. 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: The triangular shape of the lot for the proposed Family Dollar store, along with remaining building envelope standards and parking layout and design requirements, does not allow for a typical rear yard configuration. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The proposed 34-foot rear setback does not appear to encroach onto an adjoining private property as the subject site is separated from the adjacent elementary school property by Luckey Lane, which contains a landscape buffer on the elementary school property as required by the Board’s approval of Case No. V15-28. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The location of the proposed Family Dollar store building on the lot will observe remaining building envelope standards and ensure sufficient area for functional vehicular access and maneuvering. Morgantown Board of Zoning Appeals Page 17 of 25 May 17, 2017 Minutes Case moved to grant variance approval for Case No. V17-09 as presented without Staff recommended conditions; seconded by Papandreas. Motion carried unanimously. Cardoso reminded Mr. Perman 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. H. V17-10 / Family Dollar / 101 Fieldview Avenue: Request by Edward O. Perman III, on behalf of Perman Engineering Co., LLC, for variance relief from Ordinances 98-01 and 15-16 to permit a driveway access to Lucky Lane; Tax Map 48A, Part of Parcel 15; B-2, Service Business District. Papandreas inquired as to why it’s not favored to have cars pulling in off Luckey Lane. Cardoso referred to a previous petition and stated there was an agreement to construct a new roadway to provide adequate access between the two roads. Cardoso noted the road was created because of the shape of the property and the condition of Luckey Lane as it is narrow and to not encourage people to use Luckey Lane as a cut thru. Case noted that Luckey Lane is a short street and could be used as a bypass to the four-way intersection and expressed the road is in terrible shape. Case stated there is school traffic in the mornings and afternoons and recognized the two emails submitted that referred to the congestion. Papandreas expressed that most people will access the store from Fieldview Avenue unless they are coming from the Sabraton direction and didn’t feel it would be a problem to allow a second access area. Case expressed there may be an issue as the other entrance to Mountainview may be impacted if turning right off Greenbag and onto Luckey Lane. Papandreas expressed there is much discussion about something that practically speaking wouldn’t happen often except for eliminating the possibility for trucks to access the property easily. Papandreas expressed that allowing access would alleviate problems by allowing people to enter the parking lot. Wattleworth agreed and stated that access would alleviate traffic congestion at the intersection. Case noted that he sees the need for a truck entrance on an infrequent basis with a chain barrier but doesn’t feel there needs to be an additional customer entrance off Luckey Lane. Cardoso expressed that if denying the variance then they would be overturning a precedent already set by the Board and agreed with Case and the need for a truck entrance with a chain barrier. Papandreas expressed that it was possible that after a year the chain barrier would not be consistently locked. Cardoso suggested the barrier be set back to allow for the truck to get off of the road to not block vehicular traffic and the driver could unlock the chain himself. Cardoso also Morgantown Board of Zoning Appeals Page 18 of 25 May 17, 2017 Minutes suggested that dumpsters be placed so garbage trucks don’t have to deal with the chain when picking up trash. Case expressed that sidewalks should be required to ensure pedestrians can safely access the site as well as delivery trucks and asked if this could be included as a condition. Whitmore noted that if attaching conditions to a specific variance then it would have to be materially connected to that variance. Cardoso and Wattleworth questioned if sidewalks could be attached as a condition or if it would have to be a separate project handled by Planning in a Technical Review. Whitmore explained that the 98-01 ordinance dealt with limiting access and creating a physical buffer, the 15-16 ordinance was for a zoning map amendment for the property, and again necessitating a physical buffer. Case stated the 98-01 Ordinance was put into effect to protect the school and noted there is a sidewalk that extends from the school to Luckey lane. Case expressed that the spirit and intent of that ordinance is to enhance both the use of the school and the neighborhood and suggested having a pedestrian walkway for people to access the store. Whitmore stated the Board can recommend anything but Staff would not recommend adding the suggested condition. Cardoso asked what happens if they accomplish the sidewalk or stairs as they would have many requirements to meet pedestrian access. Papandreas expressed that sidewalks and stairs are a great concept but doesn’t feel that is what’s before the Board for review. Cardoso expressed that sidewalks are needed and would be a great goodwill deed from Family Dollar for the neighborhood. Case suggested placing the condition of sidewalks and pedestrian access onto the developer and if they can’t do it then the developers can come back before the Board to readdress the issue. Cardoso asked what happens if a condition is placed on a variance approval that can’t be met. Whitmore explained the applicant has the ability to recourse in circuit court or they could come back with an alternative plan. Cardoso asked if the developers would have the ability to install a type of pedestrian walkway that does not otherwise meet sidewalk requirements in the City. Case asked why a sidewalk is not required on the road to begin with. Whitmore explained that sidewalks are required along lot frontages which would be along Greenbag Road for this project. Morgantown Board of Zoning Appeals Page 19 of 25 May 17, 2017 Minutes Wattleworth noted the store is being built to face Fairview. Whitmore stated that was a structural issue and for terms of the Parcel frontage it would be Greenbag Road. Wattleworth agreed a sidewalk is needed and expressed that the pedestrian traffic would be coming from Fieldview Avenue and not Greenbag Road. Whitmore suggested that if a condition is placed on having a barrier located further into the parking lot that it would have to be approved by the City Engineer and suggested something more substantial than a chain barrier such as a bollard or gate system. Papandreas noted that a bollard system would not be appropriate. Whitmore suggested going thru the Findings of Facts individually as they have not been revised by Staff. Board members decided to review the Findings of Facts separately for Case No. V17-10. Papandreas made a motion to find in the affirmative for Finding of Fact 1 as presented by the petitioner; seconded by Case. Motion carried unanimously. NOTE: The following Finding of Fact was included in the motion. Finding of Fact No. 1 – The variance will adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because the variance will allow a delivery truck to enter into the property without blocking traffic. By allowing a one way second access, it will eliminate any concerns on the sign distance and speeds. Therefore, it will not have an adverse effect on the general public or adjacent properties. Papandreas made a motion to find in the affirmative for Finding of Fact 2 as presented by the petitioner; seconded by Case. Motion carried unanimously. NOTE: The following Finding of Fact was included in the motion. Finding of Fact No. 2 – The variance does not sufficiently arise from special conditions or attributes which pertain to the property for which the variance is sought and which were not created by the person seeking the variance, because due to the shape and size of the lot, it is extremely difficult for a delivery truck to enter the property at Fieldview Avenue and be able to turn around onsite prior to exiting at Fieldview Avenue. Papandreas made a motion to find in the affirmative for Finding of Fact 3 as presented by the petitioner; seconded by Wattleworth. Motion carried unanimously. NOTE: The following Finding of Fact was included in the motion. Finding of Fact No. 3 – The variance will not eliminate an unnecessary hardship and permit a reasonable use of the land because, the variance will eliminate any risks of a delivery driver attempting to turn around on the property. Morgantown Board of Zoning Appeals Page 20 of 25 May 17, 2017 Minutes Papandreas made a motion to find in the affirmative for Finding of Fact 4 as revised by Staff; seconded by Wattleworth. Motion carried unanimously. NOTE: The following Finding of Fact was included in the motion. Finding of Fact No. 4 – The variance will not allow the intent of the zoning ordinance to be observed and substantial just done, because the second access variance will allow service and delivery entrance only, and will be clearly marked. Papandreas moved to grant variance approval for Case No. V17-10 as presented with amended recommended condition regarding the access barrier; seconded by Cardoso. Motion carried 3-1 with Case voting nay. NOTE: The following conditions were included in the motion. 1. The Board granted variance relief from Ordinances 98-01 and 15-16, as they relate to an additional driveway access to the subject site from Luckey Lane, with the condition that access be restricted to service and delivery vehicles only and controlled accordingly by physical access barriers designed to the satisfaction of the City of Morgantown. Cardoso reminded Mr. Perman 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. I. V17-11 / Family Dollar / 101 Fieldview Avenue: Request by Edward O. Perman III, on behalf of Perman Engineering Co., LLC, for variance relief from Article 1371.03(A) concerning exterior lighting; Tax Map 48A, Part of Parcel 15; B-2, Service Business District. Case made a motion to find in the affirmative for all the Findings of Facts for V17-11 as revised by Staff; seconded by Wattleworth. 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: The lights as shown on the exterior lighting plan are pointed towards the proposed Family Dollar store and away from Greenbag Road and Luckey Lane, the Mountainview Elementary property, and the private access drive. Spillage is only 2% - 10% of the maximum intensity of the lights and will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents. 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: Morgantown Board of Zoning Appeals Page 21 of 25 May 17, 2017 Minutes  Due to the lot being surrounded by 3 different roads, it appears unnecessarily challenging to place the lights without having minimal spillage on the roads and adjoining properties and still have adequate lighting for the use of the parcel. All lights will be pointed towards the Family Dollar building and away from all roads and adjoining property. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The lighting shown on the exterior lighting plan is necessary to maintain safety and visibility of the proposed Family Dollar given the unique geometry of the site and fronted on all sides by roadways. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The use of the parcel in a safe and secure manner appears to require lighting as proposed. Case moved to grant variance approval for Case No. V17-11 as presented with Staff recommended conditions; seconded by Wattleworth. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. All exterior illumination shall be directed, tilted, and/or shielded in such a manner to limit encroachment equal to or less than the illumination levels identified on the petitioner’s Site Lighting Plan dated 01 NOV 2016 and prepared by Anthony E. Ewen, LIS Engineering. Cardoso stated the Board strongly requests pedestrian access but noted it is not a condition on the approval. Cardoso reminded Mr. Perman 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. J. G & G Rentals / 356 Kingwood Street: Request by Lisa Mardis of Project Management Services, LLC, on behalf of G & G Rentals, to extend the 12-month abandonment clause for the nonconforming “Neighborhood Convenience Store” use at 356 Kingwood Street to effectuate maintenance and repair in bringing the building into further compliance with the West Virginia State Building Code; Tax Map 36, Parcel 170; R-1A, Single-Family Residential District. Whitmore presented the memorandum relating to this petition. Cardoso recognized Lisa Mardis of Project Management Services who concurred with the Staff report and stated their intention is clear to reestablish the neighborhood convenience store. Mardis noted they do have on-site parking and according to the parking authority they would have the right to blue curb parking spaces for the store. Morgantown Board of Zoning Appeals Page 22 of 25 May 17, 2017 Minutes Wattleworth asked if there is further information for the rezoning request associated with the property. Mardis explained the sequence of council actions related to the map amendment petition. Case asked for the requested length of time to extend the abandonment clause to complete the repairs. Mardis stated six months has been requested if possible but if the map amendment is approved then it would be a moot point. 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 none, Cardoso asked for Staff recommendations, which were read by Whitmore. Papandreas moved to grant approval of an extension for G & G Rentals at 356 Kingwood Street until November 30, 2017, as presented with Staff recommended conditions; seconded by Case. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. The temporary cessation of the subject “Neighborhood Convenience Store” use is hereby granted and shall end at midnight on November 30, 2017. 2. The current property owner [G & G Rentals] must, by securing and maintaining requisite building permit(s), complete repair, maintenance, and/or alterations to 356 Kingwood Street for the specific purpose of bringing the building into further compliance with the West Virginia Building Code prior to the end of the temporary cessation established in Paragraph 6.a. above, which is herein established as the Board’s determination to be a reasonable period of time to effectuate said changes (i.e., repair, maintenance, and/or alterations). 3. The current property owner [G & G Rentals] must reestablish continuous operation of the subject nonconforming “Neighborhood Convenience Store” use prior to the end of the temporary cessation established in Paragraph 6.a. above as evidenced by the issuance of a related Certificate of Occupancy and issuance of a related Business License by the City of Morgantown. Cardoso reminded Ms. Mardis 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. K. BZA Bylaws Policy Annex 3: Amendments relating to the application for and filing and notice of an administrative appeal. Whitmore presented the memorandum relating to the BZA Bylaws Policy Annex 2. Papandreas referred to the Administrative Appeal section and asked if this is a desire from the City or the City Attorney as he did not see anything that refers to not allowing a third party to file an Administrative Appeal as there is nothing referenced in the State Code or the amended State Code from 2016. Papandreas expressed this would serve no purpose other than to eliminate an avenue for an appeal from the general public. Papandreas referred to a current map amendment request and expressed that an aggrieved person may not live on the property or file the application but could live in the neighborhood and be opposed to the zoning change. Morgantown Board of Zoning Appeals Page 23 of 25 May 17, 2017 Minutes At 10:24 P.M. Cardoso called for a recess to allow for video recordation to change DVDs. STAFF NOTE <During the recess, the video technician noted issues with the video recording device. After the technician stated that the issue was corrected the meeting was resumed. After the meeting, it was found that the video recorder that was used did not record properly. Further record of the meeting was in a secondary audio format.> At 10:37 P.M. Cardoso called the meeting back into order. Cardoso noted they would be specifically excluding third parties if they were to adopt the changes in the bylaws. Papandreas stated that if the bylaws would be adopted then people would have to go before Circuit Court to make an appeal rather than the cheaper option of coming before the Board of Zoning appeals first. Papandreas referred to the example provided in the meeting packet and stated that Central Place wanted to bring an appeal before the Board but were directed by the City to take the case before Circuit Court and cited the City Code as the reason and then noted that the City Code does not say that nor does the State Code. Papandreas expressed that the Board’s right was taken away to hear an appeal that appropriately should have come before them before going to Circuit Court and questioned if this case is the reason for the changes in the bylaws. Cardoso expressed they shouldn’t consider the reason why the bylaws are being changed but rather the effect and what it does to the process. Papandreas expressed the changes make them less transparent and takes away an option for a normal citizen who has a problem with a decision made regarding planning and zoning. Case expressed that the changes provide clarification and makes sense from a legal standpoint. Case asked if this was ever presented to the Circuit Court. Papandreas provided further explanation on the Central Place case and what happened with their appeal process and how it ended up in Circuit Court rather than before the BZA. Case expressed that general principals of administrative law would indicate that an appeal can only be filed by an aggrieved party and said he understood why the City attorney recommended the changes but also understands the other arguments made by Papandreas. Papanadreas noted that the text within both the State and City codes clearly states that Administrative Appeals shall be filed with the Board of Zoning Appeals. Wattleworth expressed the changes would take us out of step with the City and State codes. Papandreas agreed and noted there are no qualifications in the City or State codes that says who can and can’t file and appeal provided it’s concerning a Planning and Zoning decision. Case expressed that the letter by the City Attorney and Planning Staff is a correct interpretation of the law. Papandreas disagreed and expressed that the changes to the text amendment are not supported by the State and City codes. Cardoso stated she has questions for the City Attorney regarding case law that would give them further guidance and noted that no statue covers every possible scenario. Wattleworth questioned if they have the authority to change laws that govern the City. Cardoso said they have the authority to amend the Board of Zoning Appeals’ bylaws. Wattleworth asked if changing the bylaws would be handicapping the average person. Morgantown Board of Zoning Appeals Page 24 of 25 May 17, 2017 Minutes Papandreas referred to the Powers and Duties of the Board of Zoning Appeals section in the Staff report to further his argument that appeals should be taken before the BZA. Case stated the issue is who gets to make the appeal. Cardoso expressed she would like to discuss with the City Attorney to see where is position comes from before she makes a decision. After further discussion, Board members decided to make no action to changes in the amendment and requested a workshop be scheduled to include Planning and the City Attorney. V. ANNOUNCEMENTS: Mr. Whitmore introduced Mr. Phillip Avis, an intern with the Planning Division. Mr. Avis is a Master of Public Administration graduate student with West Virginia University, and is assisting the Division in establishing metrics to evaluate the implementation of the City of Morgantown Comprehensive Plan. VI. ADJOURNMENT: 11:20 PM MINUTES APPROVED: June 21, 2017 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 25 of 25 May 17, 2017 Minutes