Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 PM June 21, 2017 City Council Chambers MEMBERS PRESENT: Leanne Cardoso, Colin Wattleworth, Harrison Case, Jim Shaffer, and George Papandreas MEMBERS ABSENT: None STAFF: John Whitmore, AICP and Phillip Avis, Intern. 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 May 17, 2017 hearing. No corrections noted; minutes approved as presented with Shaffer abstaining due to his absence. III. UNFINISHED BUSINESS: None. IV. NEW BUSINESS: A. V17-12 / Beertopia / 350 E. Brockway Avenue: Request by Troy B. Freels for variance relief from Article 1365.04 as it relates to minimum parking requirements; Tax Map 35, Parcel 9; B-2, Service Business District. Whitmore presented the Staff Report. Cardoso recognized Troy Freels of 350 East Brockway Avenue who stated the business had a unique set up with both business and retail and since opening they have done more business to be considered as a tavern and therefore they need additional parking. Freels noted his attempts for trying to petition neighboring properties for overflow parking have been unsuccessful. Cardoso asked what course they would take should the application be denied. Freels stated he would reapply to the ABC as a private tavern which does not have a parking requirement. Papandreas asked for hours of the business. Freels explained that Monday thru Thursday they are open 4 p.m. to 10 p.m., Friday 4 p.m. to 12 a.m., Saturday 1 p.m. to 12 a.m. and Sunday 1 p.m. to 6 p.m. Shaffer asked what the advantage is for asking for a variance rather than getting a tavern license. Freels explained that a private club license is not for his scope of work and would also be more cost prohibitive and include liquor liability. Morgantown Board of Zoning Appeals Page 1 of 10 June 21, 2017 Minutes Case asked if there have been problems with parking. Freels explained they have an informal agreement with adjacent property owners and have not experienced any problems. Case asked how many parking spaces are currently on the property. Freels explained there are fifteen (15) spaces and generally only get full during special events. Case referred to a letter written by Stephen Siegwarth and asked if he had spoken with this person. Freels stated he had not spoken with Siegwarth but explained he owns the property that Pizza Hut leases and his parking agreement was with management of the restaurant. Wattleworth asked if the establishment served food. Freels confirmed. Wattleworth explained that if he switched to a private club then he would have to sell food to equal 60% of the income. Case inquired if an agreement was attempted with the property owner of the gravel lot adjacent to the business. Freels confirmed and stated the gravel lot is not a hard surface and would not be approved by the City. Wattleworth asked if a variance could be obtained to park in the gravel lot. Whitmore explained they would have to go thru the conditional use process and the parking area would have to be built to the standards of the City Engineer which would have an impact to stormwater management in the area. Shaffer noted there would be no need for the variance request if he were to obtain a liquor license. Whitmore explained that “private club” is defined as uses and not defined in the parking standards. Wattleworth expressed that more than four (4) cars can fit in the drive thru isle. Freels confirmed but stated he wants the drive thru isle to remain employee only as cars block each other in and would have to be moved to let people out. 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 petition. Cardoso recognized Keith Gilmore of 1360 Anderson Avenue who stated patrons from Beertopia are parking on church property and explained they are willing to sell the land to help solve the parking problem for the establishment. Papandreas asked for the location of church property. Gilmore provided a map to show the property in question and stated they have been approached by a person interested in buying the land to put a mobile home. Cardoso noted an email of opposition was sent to Staff by Steve Siegwarth and asked for it be read into the record, which was done so by Whitmore. Cardoso offered the petitioner a chance for rebuttal. Freels stated he was unaware of the property being for sale and referred to the email and noted the establishment has been open for seven (7) months and there have been no noise disturbances or parking issues. Case asked if Freels owns or leases the property. Freels stated he leases the property and noted that purchasing property for parking is not financially feasible. Morgantown Board of Zoning Appeals Page 2 of 10 June 21, 2017 Minutes Papandreas inquired about part of property to the left of Lot 9. Freels stated that property is owned by Siegwarth and is not available. Case asked if there have been complaints from the owners of the church’s property. Freels stated he has received no complaints. Papandreas referred to the email from Siegwarth and asked if he is more worried about noise disturbance or is he more worried with people using the Pizza Hut parking lot. Freels expressed that Siegwarth is more worried about disorderly conduct. Cardoso asked what type of arrangement was being worked out. Freels stated there is just a use agreement and no terms were discussed. Wattleworth asked if the gravel parking lot could be brought up to code standards. Freels stated the land would have to be hard surface and would then deal with storm water management. Freels added that the owners are expected to start construction soon on the property and therefore it would be a short-term agreement. Papandreas asked if there is a way to reconfigure cars to fit more parking. Freels replied there is not a way to fit additional cars on the lot. There being no further comments, Cardoso closed the public portion and asked for Staff recommendations which were read by Whitmore. Case voiced that the objections to the variance petition does not have relevance to the parking problem and expressed favor in the petition. Papandreas expressed agreement in the Staff recommendation. Case asked if a tavern is allowed in the zoning classification. Whitmore confirmed. Papandreas expressed there would not be a benefit to the community by having the petitioner establish a liquor license. Wattleworth asked what is involved in obtaining a temporary parking lot. Whitmore explained that would fall under a temporary use and the petitioner would have to complete a Type 2 Site Application which would be approved administratively by the City Manager’s office. Papandreas asked if there is a designation for overflow parking. Whitmore stated that would be a conditional use for off-site parking. Shaffer expressed favor in the Staff recommendations and noted that tow companies can remove unwanted cars from other properties if necessary. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for V17-12; seconded by Shaffer. 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: Morgantown Board of Zoning Appeals Page 3 of 10 June 21, 2017 Minutes  The reduction of parking has no foreseeable impact to the neighbors. 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 area previously used for additional on-site parking has been subdivided and sold, and the existing parcel layout is not conducive to additional on-site parking. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The establishment is currently operating as a Tavern as other uses that would have a lesser parking requirement appear to have been unsustainable at this location. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The variance will allow for a business use that is in-keeping with the B-2 Zoning District, while providing a safer community alternative to other similar business uses that have a lesser parking requirement. Papandreas moved to grant approval for Case No. V17-12 with staff recommended conditions; seconded by Shaffer. Motion carried unanimously. NOTE: The following conditions were included in the motion 1. That the former drive-through stacking lane shall, to the satisfaction of the Planning Division, be utilized for no more than four (4) parking stalls and that said stalls shall be reserved for employee parking only with signage indicating such reservation. 2. That one (1) accessible parking stall shall be modified, to the satisfaction of the Planning Division, to observe dimensional standards for a universal or a van accommodation, as shown in Article 1365.05 of the City’s Planning and Zoning Code. 3. That the petitioner shall submit a Type II Site Plan for administrative review and approval by the Planning Division illustrating the site, its principal building and accessory structures, if applicable, and parking area configuration required by the above conditions. Cardoso reminded Mr. Freels 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. V17-13 / Marcus Carnegie / 446 Civitan Street: Request by Marcus Carnegie for variance relief from Article 1333.05(B) as it relates to encroachments into required setbacks; Tax Map 7, Parcel 40; R-1, Single-Family Residential District. Whitmore presented the Staff Report. Cardoso recognized Marcus Carnegie of 446 Civitan Street who provided further explanation of the project and stated he is trying to maximize the use on the back of the lot. Case asked if he had received any complaints on the project. Carnegie said he has received no opposition. Morgantown Board of Zoning Appeals Page 4 of 10 June 21, 2017 Minutes Shaffer asked if the project could be cut back by three (3) feet. Carnegie explained that if he would have to cut back three (3) feet then he would not add the deck and just pave the area and add a drain. 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 petition. There being none, Cardoso asked for Staff recommendations which were read by Whitmore. Wattleworth made a motion to find in the affirmative for the all the Findings of Facts for V17-13; seconded by Papandreas. Motion carried 4-1 with Shaffer voting nay. 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 deck adheres to all setbacks from adjacent property lines. The deck will be constructed at-grade so will not adversely affect adjacent property owners from a visual standpoint. The deck will abut the foundation courses of block of the home and garage so will not be unseemly. The proposed pergola will provide midday shade to the portion of the proposed deck located outside the French doors of the house, and will be constructed to match to adjacent pitch of the house’s roof for visual continuity. 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 is an approximately 10’ X 30’ space between the existing home and detached garage. This area of the property provides the most privacy on the lot and has been used as a patio by previous and current residents. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The requested variance will allow the full area between the house and the garage to be used as a patio space. This is a private and shady area of the lot making it ideal for a patio but difficult to maintain as a lawn. The proposed deck will also provide a platform connecting the back door of the house to the side door of the garage without the need for steps since both doors are located approximately 7” above the existing grade. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The variance will allow a difficult area of property to be used effectively while adding value to the property. Wattleworth moved to grant approval for Case No. V17-13 without conditions; seconded by Case. Motion carried 4-1 with Shaffer voting nay. Cardoso reminded Mr. Carnegie 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. Morgantown Board of Zoning Appeals Page 5 of 10 June 21, 2017 Minutes  C. V17-15 / Stewart / 440 Rotary Street: Request by Lisa Mardis, on behalf of James and Johnna Stewart, for variance relief from Article 1333.04(A) as it relates to encroachments into required setbacks; Tax Map 7, Parcel 52; R-1, Single-Family Residential District. Whitmore presented the Staff Report. Cardoso recognized Lisa Mardis of Project Management Services, on behalf of 440 Rotary Street, who provided further explanation of the project and stated that the petitioner is a disabled veteran with mobility issues and the addition is necessary to build a bedroom and bathroom on the main floor of the house. Mardis elaborated on the plans for the project and noted that the Mills group feels the Southern side of the home works best for the addition. Mardis noted there is an abnormal front setback in relation to other surrounding homes and the addition would give the house an abnormal rear setback which they are considering if the petitioner should want to add a garage in the future. Papandreas asked if accommodations have been made for the petitioner currently. Mardis explained a room on the bottom floor has been turned into a temporary living quarters but there is not a bathroom on the main floor. Wattleworth asked if the proposed addition is farther from the rear property line than the current garage. Mardis confirmed and referred to the site plan and provided further explanation on the orientation of the proposed addition. 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 petition. Cardoso recognized Susan Hine of 433 Devin Road who stated she lives behind the Stewarts and has no objections to the project. There being no further comments, Cardoso noted an email was received by Matthew Cross and asked for it to be read into the record, which was done so by Whitmore. Cardoso stated six (6) additional letters of support were received by Staff. Cardoso noted the letters received were from B. Bossio, S. Hayes, K. Jones, McDonald, Beth Bossio and Michael Mills of the Mills Group. Cardoso declared the public portion closed and asked for Staff recommendations which were read by Whitmore. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for V17-15; seconded by Shaffer. 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 one-story addition will not in any way affect the safety or welfare of anyone in the neighborhood. It will replace a detached accessory structure with non-conforming setbacks, which will be located further away from the side and rear lot lines than the aforementioned garage. The addition will not extend beyond the boundaries of the property and will be contained within an existing fence to the rear Morgantown Board of Zoning Appeals Page 6 of 10 June 21, 2017 Minutes  and side property lines. There appear to be many structures/properties in the vicinity enjoying the same as requested. (Evidenced in the attached Google Earth images and case V13-05/383 Rotary Street/Rear Setback Variance (14’ variance)). The residential structure and related detached garage were built in the mid 1920’s and both have legal pre-existing non-conforming setbacks. The principal structure has a rear setback of 21’6” to 21’9” and the detached garage sets at an angle, encroaching into the required setbacks. The existing garage will be razed and removed and the addition will be situated further away from the property line. Mr. and Mrs. Stewart worked diligently for over a year with The Mills Group to find a solution that would be beneficial to Mr. Stewart’s physical needs, as well as provide space for those who afford care and therapeutic services for him on a daily basis, secure the historical integrity of the structure, and be neighbor-friendly. 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: Property owner James E. Stewart is 72 years old and is a disabled veteran who suffers from Parkinson's disease, believed to be caused by exposure to Agent Orange while serving in Vietnam. Mr. Stewart's entire body is substantially affected by Parkinson's with upper and lower extremity tremors and severe disturbance of balance. This disability significantly affects Mr. Stewart's ability to move about his two-story home at 440 Rotary Street. Mr. Stewart must traverse a steep, 17-step stairway to utilize the bathroom facilities and access his bedroom. Mr. Stewart's acute need for housing adapted to his physical impairment has been accelerated by a recent 27-day hospitalization at Ruby Memorial and HealthSouth for treatment of a deep vein thrombosis behind his right knee, which has further impaired his mobility. The one-story addition will be utilized for bathroom facilities and a bedroom for Mr. Stewart. As evidenced by a portion of the survey, please see section 7.0, the Stewart property has a unique boundary configuration that is located perpendicular to Kiwanis Avenue. An abnormal front setback between 43-44’ helps create a non-conforming rear setback of 21’6” to 21’9”. Not so easily visible from mere pictures, there is also a significant elevation difference from front to rear of the property. The couple worked diligently for over a year with The Mills Group to find a solution that would be beneficial to Mr. Stewart’s physical needs, as well as provide space for those who provide care and therapeutic services for him on a daily basis, secure the historical integrity of the structure, and be neighbor-friendly. In order to most reasonably accomplish this adaptation, it was determined that an addition to the southern side of the structure would be best. The current detached garage will be razed and removed. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: Mr. Stewart, 72, is a disabled veteran who suffers from Parkinson's disease, believed to be caused by exposure to Agent Orange while serving in Vietnam. Mr. Stewart's entire body is substantially affected by Parkinson's with upper and lower extremity tremors and severe disturbance of balance. Mr. Stewart's need for main floor housing has been augmented by a recent 27-day hospitalization at Ruby Memorial and HealthSouth for treatment of a deep vein thrombosis behind his right knee, which has further impaired his mobility. Mr. Stewart can no longer traverse a steep, 17-step stairway to utilize the bathroom facilities and access his bedroom. Morgantown Board of Zoning Appeals Page 7 of 10 June 21, 2017 Minutes  The couple are in dire need of this rear yard variance in order to include a one-story addition to their home which would include a bedroom, bathroom, and accessible ingress/egress adapted to accommodate his balance and locomotion problems. 440 Rotary Street was built in mid 1920’s and is arguably one of the oldest residences in Suncrest. With a structure of this age, it would be almost impossible to adapt the structure for accessibility purposes. The couple worked closely with the expertise of the The Mills Group to find a solution that would be beneficial to Mr. Stewart’s physical needs, as well as provide space for adequate care and therapeutic services for him on a daily basis, secure the historical integrity of the structure, and be neighbor-friendly. In order to most reasonably accomplish this adaptation, it was determined that an addition to the southern side of the structure would be best. The current detached garage will be razed and removed. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: Mr. and Mrs. Stewart relied on the expertise of The Mills Group to explore all options on the placement of a one-story addition for the purposes of providing Mr. Stewart with a main floor bedroom and bathroom. The addition would be advantageous to Mr. Stewart’s physical needs, as well as provide space for therapeutic services while preserving the historical integrity of the structure. It was very important to Mr. and Mrs. Stewart to take into consideration how an addition may affect close friends and neighbors that they have known since 1983, when they purchased the home. Michael Mills, owner of The Mills Group, was able to determine that the placement of the aforementioned addition should be on the southern side of the principal structure. While the property owners are eager to preserve the historic features of this home, while creating additional space to accommodate Mr. Stewart’s aforementioned disabilities, this is only Phase I. It is important to mention that Phase II includes a much needed attached garage that will benefit Mr. Stewart in inclement weather, that will be built in front of the Phase I addition. In keeping with the spirit and an intent of the City of Morgantown Planning and Zoning Code, Article 1333.07.F states that attached garages should be recessed. Therefore, in planning for both phases, the architects have left ample room for the garage by placing the addition closer to the rear of the property. Papandreas moved to grant approval for Case No. V17-15 without conditions; seconded by Wattleworth. Motion carried unanimously. 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. D. V17-17 / 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. Whitmore presented the Staff Report. Cardoso recognized Lisa Mardis of Project Management Services, on behalf of Family Dollar, who stated that Family Dollar has drastically reduced the square footage of their signs based on the recommendations from the Board at the last hearing. Mardis stated the store will sit below Greenbag Road in an area that will be hard to see when traffic is congested and expressed the proposed sign is necessary to identify the store. Morgantown Board of Zoning Appeals Page 8 of 10 June 21, 2017 Minutes Wattleworth expressed favor in the redesign of the sign. Papandreas asked if the sign will be big enough. Mardis expressed she does not feel the sign is big enough for the location of the establishment. Wattleworth disagreed and expressed the sign will be seen by passersby. 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 petition. There being none, Cardoso asked for Staff recommendations which were read by Whitmore. Papandreas made a motion to find in the affirmative for the all the Findings of Facts for V17-17; 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: The LCM-1C sign will allow travelers to identify the building easier due to the building being positioned lower than Greenbag Road. According to the petitioner, this is a smaller sign than most standard Family Dollar stores; therefore, it will have a lower light output. The SCM-1D signage will be mounted on the back wall of the building. There are not any residents adjacent to this side of the building. Also, it should not interfere with the visibility of westbound travelers on Greenbad Road. 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 building will be positioned much lower than Greenbag Road and it is not feasible to raise the building to be otherwise visible to potential customers. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: A business use in this location requires adequate signage in relationship to access and automobile travel lanes, necessitating the variance. 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 business in relationship to the site’s topography requires signage at areas that are not permittable under the B-2 District standards. Papandreas moved to grant approval for Case No. V17-17 without conditions; seconded by Case. Motion carried unanimously. 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. Morgantown Board of Zoning Appeals Page 9 of 10 June 21, 2017 Minutes  E. BZA Bylaws Policy Annex 3: Amendments relating to the application for and filing and notice of an administrative appeal. Whitmore presented Staff notes from the BZA workshop that took place at 6:30 p.m. on June 14, 2017 in the Training Room of the Public Safety Building. V. ANNOUNCEMENTS: None VI. ADJOURNMENT: 7:41 PM MINUTES APPROVED: July 19, 2017 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 10 of 10 June 21, 2017 Minutes