Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 p.m. May 16, 2018 Council Chambers MEMBERS PRESENT: Kevin Meehan, Chris Benison and Heidi Cook MEMBERS ABSENT: Harrison Case STAFF: John Whitmore, AICP Benison recognized there was a quorum present but, in the absence of a chair and vice-chair, he nominated Meehan to serve as chair for the hearing; seconded by Cook. Motion carried unanimously. I. CALL TO ORDER AND ROLL CALL: Meehan 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: A. Election of Vice-Chair. Board members decided to defer election to the June 14, 2018 agenda. B. Minutes for the April 18, 2018 hearing. No corrections noted; minutes approved as presented. III. UNFINISHED BUSINESS: None. IV. NEW BUSINESS: A. CU18-04 / Axe Capital, LLC / 335 High Street: Request by Michael Cardi of Bowles Rice, PLLC, on behalf of Axe Capital, LLC, for approval of a conditional “Restaurant, Private Club” use; Tax Map 26A, Parcel 67; B-4, General Business District. Whitmore presented the Staff Report. Whitmore noted that additional information provided by the applicant was distributed to the Board members at their dais as it was submitted after meeting packets were redistributed. Meehan recognized Michael Cardi, attorney at Bowles Rice, on behalf of Axe Capital, LLC who stated that “HQ” would like to extend their business to the rooftop area in order to attract business in the summer months. Cardi stated that “HQ” is a bar, but the restaurant/private club would be named “Skyline” and would be open for lunch and dinner on the rooftop of “HQ” to generate business from an older crowd. Cardi stated there would not be a cover charge to get into “Skyline” and stated that no internal “HQ” space would be used towards “Skyline”. Cardi provided further explanation on the floor plan for the restaurant and stated there is a concern to meet the 60/40 minimum food purchase requirement but feels they can meet that standard if they open for lunch. Cardi referred to the conditions listed in the Staff Report and stated they would be happy to comply Morgantown Board of Zoning Appeals Page 1 of 11 May 16, 2018 Minutes with all conditions. Cardi stated the owners have previous restaurant experience and respectfully asked for the opportunity open the restaurant and a waiver of the one-year bona-fide restaurant requirement. Benison asked how the financials are submitted. Whitmore referred to the Planning and Zoning Code to provide further explanation on how financials are submitted to the City Finance Department. Cardi stated they understand they need to meet the requirements and they are happy to report numbers monthly as requested. Benison asked how the waiver would be rescinded if the 60/40 rule is not met. Whitmore explained if the requirements are not met then they would begin enforcement procedures for violating conditions set forth with the conditional use approval. Cook noted the menu provided is minimal and expressed that the additional information provided was just given to the Board members and therefore they are unable to look it over properly. Cardi stated the menu was put together quickly due to time constraints but they plan to expand the menu as they will be operating for lunch. Cardi stated they do not have a resume for a chef as they will not hire one until they are approved for the conditional use. Benison asked if contact has been made with the Monongalia County Health Department. Meehan recognized Brian Dawson of 1303 Jamestown Drive who stated that equipment was discussed with the Fire Marshall, MUB, and the County Health Department at the Technical Review Team meeting and therefore they do know what they need to move forward. Whitmore noted that Monongalia County Health Department was not present at the Technical Review Team meeting. Dawson stated the County Health department will not grant approvals until there is physical space to ensure their codes are met. Benison expressed concern with what the likely demographic will be as opposed to the targeted demographic. Cardi understood the challenges and stated the owners hope to attract an older crowed and generate more business. Benison asked if there was a precedent for granting the one-year bona-fide restaurant private club waiver. Whitmore stated it is a case-by-case matter. There being no further comments, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. Meehan recognized Dominic Claudio of 432 Herman Avenue who stated he owns the building and expressed that downtown Morgantown is in need of reinvestment. Claudio stated the remodeled building would be aesthetically pleasing and will attract people to the business. He noted the lunch hours will attract a different crowd and generate more business. There being no further comments, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Morgantown Board of Zoning Appeals Page 2 of 11 May 16, 2018 Minutes Benison and Cook both expressed concerns with meeting the requirements of a bona-fide restaurant. After further discussion, Board members decided to table the petition to allow for further information to be submitted by the applicant as noted in the Staff Report. Cook moved to table CU18-04; seconded by Benison. Motion carried unanimously. B. V18-18 / WV Junior College / 148 Willey Street: Request by Chad Callen, on behalf of WV Junior College, for variance relief from Article 1369 concerning signage; Tax Map 26, Parcel 64; B-4, General Business District. Whitmore presented the Staff Report. Meehan recognized Steve Brock of 358 Grafton Road, on behalf of WV Junior College, who provided further explanation on the proposed signage. Benison asked for the square footage of the proposed signs. Brock explained there is one sign with a total of 78 square feet and they are requesting the same size, materials, and design as the previous sign. Whitmore referred to the Staff Report and explained that the current signage is nonconforming but needs variance approval as they are replacing the face of the sign. There being no further comments, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being none, Meehan declared the public portion closed and asked for Staff recommendations, which were read by Whitmore. Cook made a motion to find in the affirmative for all of the Finding of Facts for V18-18; seconded by Benison. 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 sign is several feet in the air mounted to the building and should not cause any public concerns. The existing signs, for which the proposed signs will replace, do not appear to have adversely impacted the public realm, public safety, or adjoining property owners by their size, transparent face, internal illumination, or materials. 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 proposed signs will replace the existing signs, which are located at least 20 feet above the adjoining grades. Compliant signs not exceeding a total of 16 square feet would not be legible to pedestrian or vehicle passersby at that height. Visibility of a smaller and lower placed sign would be reduced or even obstructed by WVU’s adjoining parking lot and neighboring Book Exchange building. The locations of the existing and proposed replacement signs appear to follow the rhythm of the second story windows. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: Morgantown Board of Zoning Appeals Page 3 of 11 May 16, 2018 Minutes  The Junior College relies on the sign for branding thus it needs to be large enough to be seen. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The Junior College relies on the sign for branding thus it needs to be large enough to be seen. The transparent face, internal illumination, and materials of the existing signs to be replaced do not appear to have adversely impacted or harmed the public realm or adjoining property owners in a manner that should negate similar features of the proposed sign. Cook moved to grant approval for Case No. V18-18 as presented without conditions; seconded by Benison. Motion carried unanimously. Meehan reminded Mr. Brock that the Board’s decision can be appealed to Circuit Court within thirty days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. C. V18-19 / Volcano Japanese Restaurant / 372 Patteson Drive: Request by Crystal Miller of City Neon, Inc., on behalf of Volcano Japanese Restaurant, for variance relief from Article 1369 concerning signage; Tax Map 11, Parcel 2; B-5, Shopping Center District. Whitmore presented the petition Staff Report. Meehan recognized Crystal Miller of City Neon Inc., on behalf of Volcano Japanese Restaurant, who explained that Volcano previously had signage on the front that was moved to the back of the building after a variance was granted for a larger sign. Miller stated the owner would like to keep the sign on the back of the building to attract customers coming from the other direction. Benison asked if there was a large volume of traffic coming from the back road behind the building. Miller stated the road is mostly used as a shortcut. There being no further comments, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being none, Meehan declared the public portion closed and asked for Staff recommendations, which were read by Whitmore. Cook noted the sign is not over a door and is located along a back alley. Benison questioned if the signage would attract additional business by being located on the back of the building. Benison expressed that the proposed signage does not maintain conformity and does not meet the standards in the code. Board members agreed. Whitmore suggested Board members review each of the findings of fact separately. Benison asked if the signage on the back of the building would draw in additional business. Cook referred to Finding of Fact 1 and expressed the sign on the back of the building would adversely affect other businesses as they would all need variances to allow for signs on the back of the building. Morgantown Board of Zoning Appeals Page 4 of 11 May 16, 2018 Minutes Meehan made a motion to find in the negative for Finding of Fact 1 as established by the Board; seconded by Benison. Motion carried unanimously. NOTE: The following finding 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 sign adversely affects the potential for additional commercial advertising, creating an inconsistency with nearby properties. Benison stated the owner erected the signage without approval and therefore is a self-imposed hardship. Board members agreed. Meehan made a motion to find in the negative for Finding of Facts 2, 3 and 4 as established by the Board because the variance request is a self-imposed and unnecessary hardship; seconded by Cook. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 2 – The variance DOES NOT arise from special conditions or attributes which pertain to the property for which a variance is sought because the inconsistent signage was created by the applicant and is not related to business/commercial messaging purposes of the shopping center’s business tenants. Finding of Fact No. 3 – The variance WILL NOT eliminate an unnecessary hardship or permit a reasonable use of the land because the inconsistent signage was created by the applicant and is not related to business/commercial messaging purposes of the shopping center’s business tenants. Finding of Fact No. 4 – The variance WILL NOT allow the intent of the zoning ordinance to be observed and substantial justice done, because the inconsistent signage was created by the applicant and is not related to business/commercial messaging purposes of the shopping center’s business tenants. Cook moved to deny variance request V18-19 based on the negative findings of fact determined by the Board; seconded by Benison. Motion carried unanimously. Meehan reminded Ms. Miller that the Board’s decision can be appealed to Circuit Court within thirty (30) days of receiving written notification from the Planning Division and that any work related to the Board’s decisions during this period would be at the sole financial risk of the petitioner. D. V18-20 / The UPS Store / 364 Patteson Drive: Request by Crystal Miller of City Neon, Inc., on behalf of The UPS Store, for variance relief from Article 1369 concerning signage; Tax Map 11, Parcel 2; B-5, Shopping Center District. Whitmore presented the Staff Report. Meehan recognized Crystal Miller of City Neon, Inc., on behalf of The UPS Store, who stated the store is updating their signage to conform to their corporate look and provided further explanation on the proposed signs. Benison requested clarification on the justification for the signage on the rear façade. Miller stated the signage on the rear is more to benefit the drivers than the customers. Morgantown Board of Zoning Appeals Page 5 of 11 May 16, 2018 Minutes Benison questioned if the rear sign is necessary if it is not generating more business and only used by drivers. Miller stated the signage is existing and there were not plans to remove that sign. Whitmore referred to the Staff Report and stated that if the Board were to grant variance relief for all three signs, then a variance request of 79.14 square feet would be necessary. Should the Board only grant variance relief for two out of the three signs, then the variance request of 43.14 square feet would be necessary, reducing the extent of nonconformity. Miller explained there are four total signs existing and they want to take down two of the signs and make it one bigger sign and the other two signs would stay the same. Benison asked if the signs located on Patteson Drive are included in the computation. Whitmore stated those signs are not included in the totals. There being no further comments, Meehan asked if anyone would like to speak in favor of or in opposition to the variance petition. There being none, Meehan declared the public portion closed and asked for Staff recommendations, which were read by Whitmore. Board members decided to review the Findings of Facts separately. Benison referred to Finding of Fact 1 and asked what the unique or special conditions of the plaza complex that The UPS Store is located. Whitmore stated the corner of the business is not facing a street and is facing a parking lot. Benison agreed with Finding of Fact 2 as it is located at a disadvantage in terms of visibility from Patteson Drive. Benison expressed that the signage on the rear does not promote the business and is used to facilitate deliveries. Whitmore explained that the Board could granted the variance for two signs, with the condition the nonconforming rear sign be removed. Benison noted the rear sign looks to be in good condition and could be stored as a replacement should the Board require the removal of that sign. Benison reiterated he did not feel the rear signage promotes the business. Benison made a motion to find in the affirmative for Finding of Fact 1 as revised by the Board; seconded by Cook. Motion carried unanimously. NOTE: The following finding was included in the motion. Finding of Fact No. 1 – The variance will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because a larger sign will help promote business within the unique conditions of the plaza’s location, with the exception of the rear wall sign . Benison made a motion to find in the affirmative for Finding of Fact 2 as revised by the Board; seconded by Cook. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 6 of 11 May 16, 2018 Minutes NOTE: The following findings were included in the motion. 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 shopping plaza is setback from a very busy, five lane roadway. In order for the sign to be visible and functional from that distance it needs to be large, with the exception of the rear wall sign. Benison made a motion to find in the affirmative for Finding of Fact 3 as presented by the petitioner; seconded by Cook. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because the sign will help promote business more effectively from the five lane roadway given the setback. The new signage will be more energy efficient and have an updated, fresh look. Meehan made a motion to find in the affirmative for Finding of Fact 4 as revised by the Board; seconded by Benison. Motion carried unanimously. NOTE: The following findings were included in the motion. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because the business will be visible and identifiable to members of the community, with the exception of the rear wall sign. Benison moved to grant a 43.13 square foot variance for Case No. V18-20 with the condition that the wall sign for which variance relief was denied must be removed no later than 4 p.m. on Friday, June 1, 2018. The motion was seconded by Cook; the motion carried unanimously. Meehan reminded Ms. Miller 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. V18-21 / Dollar Tree / 1591 Earl L. Core Road: Request by Shakira Simons of Allen Industries, on behalf of Dollar Tree, for variance relief from Article 1369 concerning signage; Tax Map 31, Parcels 111.1 and 111.3; B-2, Service Business District. Whitmore presented the Staff Report. Meehan recognized Jack Harneck of Pittsburgh, PA, on behalf of Dollar Tree, who provided further explanation on the proposed signage and concurred with the Staff Report. Harneck stated they will be replacing the existing signs with almost the same square footage as the Walgreen’s had been approved for previously. Harneck expressed the signage is consistent with other retailers and they agree to the conditions listed in the Staff Report. There being no comments, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being none, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Meehan noted there is only one square foot difference between the previous Walgreen’s signage variance and the current proposed variance for Dollar Tree. Cook agreed and noted they are not changing the façade. Morgantown Board of Zoning Appeals Page 7 of 11 May 16, 2018 Minutes Benison referred to Finding of Fact 4 and questioned if they want to continue with nonconforming signage as the variance petition is significant. Meehan expressed there are consistently nonconforming signs along the corridor. Benison suggested the square footage of the sign towards Decker’s Creek be reduced in size. Cook and Meehan did not feel that was necessary as they need to advertise from that side of the building. Whitmore noted the intent of the code is to maintain consistency in the pattern of signage. Meehan expressed the proposed signage maintains the pattern of that corridor. Cook made a motion to find in the affirmative for all of the Finding of Facts for V18-21 as revised by Staff; seconded by Benison. 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: Dollar Tree is proposing to install signage in the same onsite locations as the previous tenant’s signage but on a slightly smaller scale; the Walgreens signs of which do not appear to have adversely affected the public welfare, adjoining properties, or improvements. 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 structural design of this site’s building along with it being setback into the corner lot contributes to loss of visibility of compliant signage to passing patrons. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The building is setback from the frontage and side roadways a distance that appears to compel signs larger than permitted by-right to ensure legibility. Additionally, it appears the predominant commercial signage and messaging patterns within the Earl Core Road corridor exceed the maximum area and height standards, leaving compliant area and height signage at a competitive disadvantage for the petitioner. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: It appears most commercial signs along the Earl Core Road corridor are nonconforming, exceeding maximum area and maximum height standards set forth in Article 1369 of the Planning and Zoning Code. Additionally, the previous Walgreens signs do not appear to have adversely affected the public welfare, adjoining properties, or improvements. Cook moved to grant approval for Case No. V18-21 as presented with conditions; seconded by Meehan. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. No additional wall signs may be erected; particularly, on the rear façade facing the rail-trail facility nor on the north side façade facing the current Popeye’s establishment. Morgantown Board of Zoning Appeals Page 8 of 11 May 16, 2018 Minutes  2. The height of the post-and-panel sign and its respective sign face area may not be increased above or beyond current conditions. 3. The upright post members of the post-and-panel sign shall remain finished with masonry materials so that said ground sign continues to integrate with and compliment the architectural vocabulary of the principal structure. Waste storage containers will not interfere with on-site parking and be moved to another location on-site. Meehan reminded Mr. Harneck 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. V18-22 / Domino’s Pizza / 1159 Van Voorhis Road: Request by Daniel T. Beeman of Wagner Electric Sign Co., on behalf of Domino’s Pizza, for variance relief from Article 1369 concerning signage; Tax Map 6, Parcel 38; B-2, Service Business District. Whitmore presented the Staff Report. Meehan recognized Daniel Beeman of Wagner Electric Sign Co., on behalf of Domino’s Pizza, who provided further explanation of the proposed signage which concurred with the Staff report. Beeman stated the location of the building is on the corner of a busy corridor and has many visibility challenges including being overshadowed by the neighboring gas station. Benison asked if they had adequate signage for public safety considerations as the building is located on the corner of the busy corridor. Beeman expressed there is adequate identification with the proposed signage as people will see the signage from all directions. Benison stated it is important to maintain consistency but expressed the increase in square footage is acceptable due to the special attributes of the building. Benison referred to Finding of Fact 3 and suggested adding “public safety” and “commercial messaging” to the verbiage. Beeman noted the site is unique as it will have a drive-thru. Whitmore referred to the Staff Report to explain the location of the drive thru. There being no further comments, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being none, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Benison asked for further information on the materials of the proposed signage, to which Beeman provided clarification. Benison made a motion to find in the affirmative for all of the Finding of Facts for V18-22 with the suggested changes and as revised by Staff; seconded by Cook. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 9 of 11 May 16, 2018 Minutes NOTE: The following findings were included in the motion. Finding of Fact No. 1 – The variance will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents, because: Signs 1 and 2 appear to be of an appropriate size to the building which should help passersby more easily identity the business in an extremely busy traffic area. These signs should not adversely affect the adjacent property owner as they have a similar road sign, a canopy with signs and wall sign. Sign 3 is a directional sign to assist customers in navigating the property to the pick-up window. It appears to be of an appropriate size and internally illuminated and as such should positively impact the safety of the public. It does not appear to adversely affect the rights of the adjacent property owner. Sign 4 would utilize the existing ground sign structure, the size, sign type, and internal illumination of which do not appear to have adversely impacted the health, safety, or welfare of the public nor the adjacent property owner. A clearance will be left under the new cabinets to provide a clear sight line. 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: As this building sits at a busy intersection, in terms of traffic volume and visual noise, it is important to the success of the business as well as the safety of the public to have signs of an adequate number, size, location, and illumination that allow the public to make any necessary adjustments ahead of reaching this business. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The signs for which variance relief is granted herein appear to address commercial messaging and vehicle safety challenges of the site, given the constraints existing within the surrounding built environment, including the scale of the building in relation to the arterial frontage roadway, the volume of vehicular traffic, the obstruction of the building by the neighboring Gas Station Mini Mart use, and the general visual noise created by traffic signs, utility poles, utility lines, etc., without harming the public realm or adjoining property owners. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The signs for which variance relief is granted herein appear to correspond with commercial signage within the immediate area in terms of sign type, size, location, and internal illumination. Cook moved to grant approval for Case No. V18-22 as presented with one condition; seconded by Benison. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the post-and-panel sign structure shall be prepared and painted or appropriately covered, wrapped, or sleeved thereby mitigating its present rusting and decaying conditions; and, that any and all related maintenance work must be completed. Meehan reminded Mr. Beeman 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 10 of 11 May 16, 2018 Minutes V. ANNOUNCEMENTS: A. Whitmore noted that hard copies of the 2018 Planning and Zoning Code have been distributed to the Board members. B. Whitmore stated there is a vacancy on the BZA following Mr. Shamberger’s resignation. VI. ADJOURNMENT: 8:52 p.m. MINUTES APPROVED: June 27, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 11 of 11 May 16, 2018 Minutes