Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 p.m. June 27, 2018 Council Chambers NOTE: Originally scheduled meeting date of 20 JUN 2018 was rescheduled to 27 JUN 2018 to ensure a quorum would be present. MEMBERS PRESENT: Harrison Case, Kevin Meehan, Chris Benison and Heidi Cook MEMBERS ABSENT: None STAFF: John Whitmore, AICP 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: A. Election of Vice-Chair. Case moved to nominate Meehan as Vice-Chair; seconded by Cook. Motion carried unanimously. B. Minutes for the March 26, 2018 hearing. No corrections noted; minutes approved as presented. C. Minutes for the May 16, 2018 hearing. No corrections noted; minutes approved as presented. III. UNFINISHED 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. TABLED 16 MAY 2018. WITHDRAWN BY APPLICANT. IV. NEW BUSINESS: A. V18-23 / WV Dausch / 709 Sherman Avenue: Request by Greg Dausch for variance relief from Section 1335.04 to encroach into minimum side setback standard; Tax Map 41, Parcel 97; R-1A, Single-Family Residential. Whitmore presented the Staff Report. Case recognized Greg Dausch of 709 Sherman Avenue who stated he resides on a corner lot and explained that initially he had planned for different placement of the shed, but Staff had suggested another area to keep with the spirit and intent of the zoning code. Dausch agreed to Morgantown Board of Zoning Appeals Page 1 of 6 June 27, 2018 Minutes place shed under a power line, as suggested by Staff, if the variance is granted as it was cleared by Mon Power. Case stated an email from Ryan Zaph of Mon Power was forwarded to Staff that noted the placement of the shed under a service drop is permitted. Case noted that letters in favor of the proposed shed were submitted by surrounding property owners. Benison asked if Mon Power gave overhead guidelines to follow when erecting the shed. Dausch confirmed and noted there would be a ten-foot clearance from the peak of the shed to the power line. There being no further comments, Case asked if anyone would like to speak in favor or in opposition to the variance petition. There being no comments, Case declared the public hearing 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 V18-23 as revised by Staff; seconded by Meehan. 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 storage shed will be within the property owners preexisting fence. The proposed location poses no health, or safety risk, and does not violate the rights of the adjacent property owners in any way. The Board’s approval conditions serve to ensure the structure would not pose as a visual barrier for drivers and preserve the quality, character, and enjoyment of the front yard of 201 Gordon Street. 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 unfortunate layout of the parcel has created the need for a variance. Section 1331.08(4) of the Planning and Zoning Code prohibits the accessory structure from being placed between the principal building and a right-of-way. The parcel in question is situated in a manner that makes it impossible to have an accessory structure and be within code compliance. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The variance will permit the property owner the ability to utilize the land in an unobtrusive manner. The proposed structure’s design is tasteful and will allow the property owner needed storage for outdoor yard equipment and seasonal children’s toys. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The ordinance exists to keep individuals from placing structures in an unsightly (in front yards) and or unsafe location (blocking the view of traffic for residents and motorists). The proposed structure will allow the homeowner proper storage area, needed for property maintenance and storage. The Board’s approval conditions serve to ensure the structure would not pose as a visual barrier for drivers and preserve the quality, character, and enjoyment of the front yard of 201 Gordon Street. Morgantown Board of Zoning Appeals Page 2 of 6 June 27, 2018 Minutes Cook moved to grant approval for Case No. V18-23 as presented with staff recommended conditions; seconded by Meehan. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the proposed accessory shed structure may not be placed closer than five feet from the boundary separating Parcels 97 and 98 of Tax Map 41. 2. That the proposed accessory shed structure may not be placed closer to the petitioner’s Gordon Street parcel boundary than the setback of the principal building at 201 Gordon Street, exclusive of the front porch. 3. That the proposed accessory shed structure may not be placed closer to the petitioner’s Sherman Avenue parcel boundary than the setback of the petitioner’s principal building, exclusive of the front porch. 4. That the proposed accessory shed structure may not be placed closer than three (3) feet from the side deck feature 5. That the building permit application [No. 2018-00000316] submitted for approval to develop the proposed accessory shed structure shall be revised by the petitioner by including an updated site plan illustrating the accurate location of the shed, including setback dimensions. Case reminded Mr. Dausch 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. V18-24 / River Fair Trade / 316 High Street: Request by Shannon Dowling, on behalf of River Fair Trade, for variance relief from Article 1369 concerning signage; Tax Map 26A, Parcel 120; B-4, General Business District. Whitmore presented the Staff Report. Case recognized Shannon Dowling of 315 High Street who explained that the proposed sign is attractive and will help clients locate the establishment when traveling on High Street. Dowling noted that the back lighting to the sign will not reflect on the street. There being no comments, Case asked if anyone would like to speak in favor or in opposition to the variance petition. Case recognized Barbara Watkins, Executive Director of Main Street Morgantown, who expressed favor in the sign as it is aesthetically pleasing to the downtown district and will help customers locate the business. There being no further comments, Case declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Case referred to the Staff Report and noted there are no issues with the materials, construction and illumination of the sign and the variance only pertains to the size of the sign. Whitmore confirmed. Meehan expressed the signage is acceptable especially next to a store with an awning. Morgantown Board of Zoning Appeals Page 3 of 6 June 27, 2018 Minutes Benison expressed favor in the sign and noted the request is modest and the back lighting will help draw customers to the business in the evening hours. Cook made a motion to find in the affirmative for all of the Finding of Facts for V18-24 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: The sign will be attached on the store front wall above River Fair Trade, a retail store, and will not touch or present a nuisance to any other business or residences. Because it will utilize LED strips as rear- facing back lighting around the border and behind the word “River”, it will not require any extended arm lights to shine up or down so as to not affect any other business or residence. Other wall signs along High Street that exceed maximum wall area standards, through either nonconforming or variance granted conditions, to not appear to have harmed public health, safety or welfare, property rights, or the surrounding built environment. 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 size requested will be more visible to potential customers who are driving or walking down High Street, the prime downtown shopping destination. Like many storefronts in the B-4 District, an area compliant wall sign would result in River Fair Trades having a wall sign that would not be legible to passersby, particularly motoring vehicles. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The sign is a professional, well-lit, and visible and will be used to drive commerce to the business. For wayfinding purposes, the sign will help to distinguish the store from surrounding businesses and allow customers to find the location easily and safely. An area compliant wall sign for the petitioner’s tenant space would not be legible to passersby, particularly motoring vehicles. 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 is a retail store and the sign is intended for commercial messaging, branding, and wayfinding purposes. The signage area required by the zoning ordinance would not be sufficient. Meehan moved to grant approval for Case No. V18-24 as presented with the staff recommended condition; seconded by Benison. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the light-emitting diodes (LEDs), light bulbs or lamps used to create the “halo” lighting effect must remain one (1) constant, continuous, and stationary color and may not flash, blink, undulate, pulse, strobe, blink or otherwise appear to move. Case reminded Ms. Dowling 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 4 of 6 June 27, 2018 Minutes  C. V18-25 / Family Dollar / 1411 Earl Core Road: Request by Crystal Miller of City Neon, Inc., on behalf of Family Dollar, for variance relief from Article 1369 concerning signage; Tax Map 31, Parcel 100; B-5, Shopping Center District. Whitmore presented the Staff Report. Case recognized Crystal Miller of City Neon Inc., on behalf of Family Dollar, who stated the sign is the same footprint as the previous sign but the company is rebranding with a new medallion which increases the square footage of the sign and therefore a variance is necessary. There being no comments, Case asked if anyone would like to speak in favor or in opposition to the variance petition. There being no comments, Case declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Meehan made a motion to find in the affirmative for all of the Finding of Facts for V18-25 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: The proposed sign is comparable in size to the existing sign. The addition of the center medallion bumps up the square footage of the sign as a whole without visually adding bulk to the signage. Wall signage within the commercial corridor of Earl Core Road that exceed maximum area standards, by either nonconforming conditions or granted variance relief, do not appear have resulted in harm to public health, safety, or welfare, property rights, or the character of surrounding built environment. 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 business is in a shopping center along Earl L. Core Road within which larger wall signage appears necessary to effectively communicate to passersby given the distance of the building’s façade from Earl Core Road. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The business is located in the B-5 Shopping Center zoning district and must communicate to motor vehicle traffic that is more than 50 feet from the store’s entrance and over 100 feet from the shopping center entrances. The proposed signage appears to be compatible with the building and the surrounding premises. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The shopping center tenant will be able to continue to operate within the parameters of corporate branding, and effectively communicate the location of the store to passersby. Meehan moved to grant approval for Case No. V18-25 as presented without conditions; seconded by Cook. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 5 of 6 June 27, 2018 Minutes Case 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. D. V18-27 / Appalachian Cannabis Company, LLC / 2045 University Avenue: Request by Jeffrey A. Ray of Bowles Rice, LLP, on behalf of Appalachian Cannabis Company, LLC, for variance relief from Article 1365 concerning parking; Tax Map 20, Parcel 131; B-1, Neighborhood Business District. E. V18-28 / Appalachian Cannabis Company, LLC / 2045 University Avenue: Request by Jeffrey A. Ray of Bowles Rice, LLP, on behalf of Appalachian Cannabis Company, LLC, for variance relief from Article 1369 concerning signage; Tax Map 20, Parcel 131; B-1, Neighborhood Business District. Case moved to table Cases V18-27 and V18-28, as neither the petitioner nor a representative was present; seconded by Cook. Motion carried unanimously. V. ANNOUNCEMENTS: A. Whitmore noted that new Planning and Zoning Code Applications along with increased fees are effective of July 1st, 2018. Whitmore referred to the meeting packet to ask Board members if they have any comments or suggestions on the new applications. Board members expressed favor in the revised applications. VI. ADJOURNMENT: 7:20 p.m. MINUTES APPROVED: July 18, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 6 of 6 June 27, 2018 Minutes