Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:43 p.m. March 26, 2018 Council Chambers MEMBERS PRESENT: Harrison Case, Chris Benison, Kevin Meehan, and Tom Shamberger MEMBERS ABSENT: None STAFF: Christopher Fletcher, AICP and Ryan Simonton, Esq. I. CALL TO ORDER AND ROLL CALL: Case called the meeting to order and read the standard explanation of the how the Board conducts business and rules for public comments. II. MATTERS OF BUSINESS: None. III. UNFINISHED BUSINESS: None. Case asked if there was any additional evidence to submit for the from either party. Michael Cardi, Esq., representing Axe Capital, LLC, requested to distribute pictures to the Board. Ryan Simonton, Esq., representing the City, objected to the Board considering the pictures and requested to submit responsive evidence if accepted by the Board. Case asked Cardi for an explanation of the evidence requested to submit and questioned why this was not submitted within the five-day rule. Cardi provided explanation of the three photos that include other bars in Morgantown with similar renovations and asked the Board to consider the evidence. Cardi noted the pictures were not submitted earlier due to delayed communication with his client. Case referred to the meeting packet that included photos of surrounding properties and stated there does not appear to be good cause for the late submission of the evidence and noted the hearing has already been postponed once. Case stated Cardi could present the case as filed. IV. NEW BUSINESS: A. BA18-01 / Axe Capital, LLC / 335 High Street: Request by Michael Cardi, Esq., on behalf of Axe Capital, LLC, for an Administrative Appeal concerning the expansion of a nonconforming “Private Club” use at 335 High Street; Tax Map 26A, Parcel 67; B-4, General Business District. Morgantown Board of Zoning Appeals Page 1 of 5 March 26, 2018 Special Meeting Minutes Case recognized Michael Cardi, attorney for Bowles Rice, on behalf of Axe Capital, LLC who introduced his clients David Barton, owner of Axe Captial, LLC, Brian Dawson, sub-lessor of the property, and Dominic Claudio, owner of the building. Cardi stated that Axe Captial, LLC operates a nonconforming use at 335 High Street and does business as HQ. Cardi explained that HQ wants to expand their business to the rooftop in order to stay in competition with surrounding bars that have been permitted to modify their structures for outdoor space. Cardi provided further explanation of the proposed renovations which includes removing the aluminum shell, adding floor covering, increasing the height of the wall, and adding a secondary egress. Case referred to the definition of “structural alteration” in the Planning and Zoning Code and stated they would not be rebuilding the roof or making any changes. Cardi referred to the Planning and Zoning Code regarding nonconforming uses being expanded and stated the modifications proposed would not be done interiorly but rather outside of the building. Cardi noted the secondary stairwell is not required per the code but rather at the request of the City Fire Marshall. Cardi provided further explanation of the project and reiterated the plans do not include structural alterations and they meet the requirements of the Planning and Zoning Code. Cardi expressed the modifications will benefit the downtown area and noted that other bars have been permitted to create such spaces. Case recognized Ryan Simonton, attorney for the City of Morgantown, who stated that Chris Fletcher will present the Planning Division’s interpretation of the Code and he would address the legal issues that were mentioned by petitioner’s Counsel. Case recognized Chris Fletcher who referred to the Staff Report in the meeting packet and noted the administrative interpretation prepared was based on the proposed alterations presented and Staff was not aware of changes to the plan until this evening. Fletcher explained the difference between a “Private Club” and a “Restaurant, Private Club” use and noted that private clubs have a special nonconforming provision that is handled separately and differently than other nonconforming uses within the code. Fletcher referred to the Article 1331.06 in the Planning and Zoning Code and noted the proposed area is not presently occupied by the nonconforming use as it is proposed on the roof of the building. Fletcher reiterated that Staff has not received any changes in plans that were previously mentioned by petitioner’s Counsel and the administrative interpretation was based on the information presented at the time. Fletcher referred to Article 1329.02 to provide the definition of a variance and provided further explanation on why variance relief is not appropriate. Fletcher stated the City is not saying that a use cannot be occupied on the roof but, rather a nonconforming private club use cannot be expanded as presented by the petitioner. Morgantown Board of Zoning Appeals Page 2 of 5 March 26, 2018 Special Meeting Minutes Case recognized Simonton, who addressed the legal contentions brought up by petitioner’s Counsel. Simonton referred to Counsel’s claims that other bars are allowed to expand and noted that the issue before the Board is the specific property presented in the administrative appeal and the Staff Report. Simonton stated that the language of the code allows for expansion inside the building and noted that requirements provided by the Fire Marshall and the Building inspector are two different City departments that enforce two different codes. Simonton asked the Board to adopt as it’s written Findings and Conclusions as presented in the Staff Report. Case offered Cardi the chance for rebuttal. Cardi acknowledged there have been changes to the plans and stated they would not be adding two bathrooms. Cardi referred to the basic interpretation of a structural alteration and stated they are not proposing to rebuild the structure. Cardi reiterated there are many rooftop bars that have been permitted in the downtown area and provided examples. Cardi noted that the City suggested they obtain a different license that would only permit beer and wine, and stated that type of establishment is not a viable option. Cardi provided further explanation on the proposed project and noted the changes are much less obtrusive than tearing down walls as other surrounding bars have done. Shamberger and Benison asked where the projection room would be located. Cardi stated the stairwell would lead up to the projection area. Meehan noted that expansion of the existing occupied use is not allowed with a nonconforming private club use as of 2003 per the code and asked how the use of the building could be expanded. Cardi questioned how they are interpreting the code and how other surrounding bars have been permitted to have changes and modifications which allows for outdoor space. Case referred to the project plans and asked if there would be a roof above the deck. Cardi stated it would be open space with no additional structure on the rooftop. Benison inquired about occupancy issues in the event of inclement weather. Cardi stated they would have to kick some people out in the event occupancy became an issue. Case asked if their position is that the roof area they are proposing to use is within the previously existing use. Cardi stated the building is within the area that is authorized for pre-existing use and they are not adding any area but rather renovating one aspect of the building to permit the use that already exist. Case referred to the proposed staircase and noted that would be required by the Fire Marshall and not the Building Inspector. Cardi conceded that point and provided further explanation on how the staircase is not considered a structural alteration. Morgantown Board of Zoning Appeals Page 3 of 5 March 26, 2018 Special Meeting Minutes Case inquired if they believe a safety railing would not constitute rebuilding a wall. Cardi confirmed and stated there is already an existing parapet wall that they would be raising. Benison expressed the proposed changes will result in a change to the functional space and therefore that change may prompt reconsideration as to whether a structural change has taken place. Cardi referred to Article 1329 and stated that expansion is permitted in a building where there is already a legal nonconforming use. Benison referred to Article 1373 and stated that a nonconforming use may not be expanded or enlarged unless there were certain circumstances, in which he further explained. Cardi referred to Article 1329 and questioned how the two sections could be reconciled. Case invited Simonton to the podium and asked if moving onto the roof would be considered outside of the structure. Simonton confirmed and stated the expansion is not within the structure and noted that structural alterations are not permitted. Case asked for further explanation on why other surrounding businesses are operating with roof top social areas. Simonton stated the Board is required to follow the code even if impermissible alterations or expansions were made in the past to other establishments. Case asked if Simonton considered raising a wall and installing a safety railing is considered a structural alteration. Simonton expressed the Board would need to review a building permit and expressed that rebuilding the roof and constructing a floor space would constitute a structural alteration per the code. Case asked if the code allows for repair of a roof. Simonton confirmed and stated that repairs are always permitted and are not an expansion of a nonconforming use. There being no further questions or comments by the Board, Case asked if anyone was present to speak in favor of or in opposition to the variance petition. Case recognized Dominick Claudio, owner of the 2 Wall Street property, who stated he purchased the property with the intent to improve and invest in the downtown district. Claudio noted he is the City Planner of Star City and expressed it is the job of the Board to follow the rules but also to do the right thing for the community. He stated the proposed changes are not changing the footprint of the property but rather just the use and expressed favor in the project. Case recognized Brian Dawson of 1303 Jamestown Drive who referred to other establishments that have been allowed to make rooftop changes and questioned how that is permitted for some people and not for others. There being no further comments, Case closed the public hearing and reviewed the BZA Administrative Appeal Rules of Procedure. Case noted there are explanations and pictures in the Staff Report of the proposed project, but no formal architectural drawings with specific plans have been submitted by the petitioner. Morgantown Board of Zoning Appeals Page 4 of 5 March 26, 2018 Special Meeting Minutes Case expressed that the petitioner would have to construct a floor suitable for a certain number of people above the existing roof after removing the current protective covers and expressed that constructing a rooftop bar constitutes rebuilding of a roof. Case stated that the question of whether other establishments have been permitted to have rooftop bars is not the issue before the Board. After further discussion, Board members expressed the changes would be a structural alteration and would not follow the Planning and Zoning Code. Case made a motion to deny Case No. BA18-01 and accept the Findings and Conclusions as submitted by Staff; seconded by Shamberger. Motion carried unanimously. Case reminded Mr. Cardi that the Board’s decision can be appealed to Circuit Court within thirty days of receiving written notification of the Board’s decision and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. V. ANNOUNCEMENTS: None. VI. ADJOURNMENT: 7:45 p.m. MINUTES APPROVED: June 27, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 5 of 5 March 26, 2018 Special Meeting Minutes