Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 p.m. July 18, 2018 Council Chambers MEMBERS PRESENT: Kevin Meehan, Chris Benison and Heidi Cook MEMBERS ABSENT: Harrison Case STAFF: John Whitmore, AICP 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. Minutes for the June 27, 2018 special hearing. No corrections noted, minutes approved as presented. III. UNFINISHED BUSINESS: A. 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. TABLED AT THE 27 JUN 2018 HEARING. B. 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. TABLED AT THE 27 JUN 2018 HEARING. Whitmore proposed the Board do a procedural motion and vote to remove V18-27 and V18-28 from the table. Cook moved to remove V18-27 and V18-28 from the table; seconded by Meehan. Motion carried unanimously. Whitmore presented the combined Staff Report for variance cases V18-27 and V18-28. Meehan recognized Jeffrey Ray of Bowles Rice, LLP, on behalf of Appalachian Cannabis Company, LLC, who advised Staff that his client was unable to attend the hearing and requested to postpone the petitions to the August 15 hearing. Ray noted that the parking and signage for the building have been in place for 40 years and expressed there would be no harm in postponing for another 30 days. Morgantown Board of Zoning Appeals Page 1 of 10 July 18, 2018 Minutes Meehan expressed the parking is not appropriate for the establishment but noted the Board cannot speak on behalf of the enforcement. Ray understood and asked the Board to allow for a variance of 7 spaces instead of 8 as the right-of-way and parking layout have been in existence for over 40 years. Ray noted that Ryan Simonton, City Attorney, stated he would work with them on licensing and abandonment for part of the right-of-way. Ray stated it is important for his client to be present for the hearing in order to further explain the nature of the business and to express the importance of the parking. Benison moved to table Case No. V18-27 and V18-28 to the August 15, 2018 BZA hearing; seconded by Cook. Motion carried unanimously. IV. NEW BUSINESS: A. CU18-05 / Mansberger / 11 Hartman Run Road: Request by Allen Mansberger for approval of a conditional “Automotive Sales” use; Tax Map 31, Parcel 16; B-2, Service Business District. Whitmore presented the Staff Report. Meehan recognized Allen Mansberger of 11 Hartman Run Road who stated he would like to move his licensing and car service to this location. Meehan asked if there is adequate space for both services. Mansberger confirmed. Benison asked if any additions or enhancements are planned for the future. Mansberger stated that he has a garage in Dellslow that would be used for servicing and there are no plans to expand on the lot. Benison asked if he had plans for signage. Mansberger confirmed and stated he has submitted a sign permit application for review. Whitmore confirmed an application was received by Staff and noted the wall signage has been approved. Whitmore noted there are concerns with the location of the monument sign that will be worked through with the Staff and the petitioner. There being no further questions or comments by the Board, Meehan asked if anyone would like to speak in favor or in opposition to the conditional use petition. Meehan recognized Ed Keepers of Listravia Avenue who expressed favor in the petition and stated the business will be a great use for the property. There being no further comments, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Benison made a motion to find in the affirmative for all of the Finding of Facts for CU18-05 as revised by staff; seconded by Cook. 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: Existing property already is used as a preowned auto sales lot. Morgantown Board of Zoning Appeals Page 2 of 10 July 18, 2018 Minutes  Finding of Fact No. 2 – Safety from fire, panic, and other danger is not jeopardized, in that: The site has been occupied previously by automotive sales establishments without apparent hazards. Finding of Fact No. 3 – Provision of adequate light and air is not disturbed, in that: No changes to structure or lighting will be made. Nothing will be released into the air. Finding of Fact No. 4 – Overcrowding of land does not result, in that: There are no additional on-site improvements that will be constructed for the proposed use. Finding of Fact No. 5 – Undue congestion of population is not created, in that: The petitioner states that only 1 or 2 employees are anticipated during the busiest shift. The proposed development does not include a residential component. 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: No additional development is anticipated that would require additional public goods or services beyond that necessary to serve previous automotive sales establishments that have occupied the site. Finding of Fact No. 7 – Value of buildings will be conserved, in that: The site has been occupied by previous automotive sales establishments. The Earl Core Road commercial corridor has included similar uses for many years including a larger former new car dealership across Earl Core Road from the petitioner’s site. Finding of Fact No. 8 – The most appropriate use of land is encouraged, in that: It has high visibility, good traffic patterns within the City, and is in-keeping with previous and neighboring automotive sale establishment uses. Cook moved to grant approval for Case No. CU18-05 as presented with staff recommended conditions; seconded by Benison. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the beneficiary of this conditional use approval is specific to the petitioner’s related business organization and that said beneficiary may not be transferred without prior approval of the Board of Zoning Appeals. 2. That the petitioner must, to the satisfaction of the Planning Division, properly mark and sign at least six (6) parking spaces that meet or exceed minimum parking stall dimension requirements prior to occupancy. One (1) of the required parking spaces shall be designed as a universal or van accessible space, in accordance with Article 1365.06 PARKING SPACES ACCESSIBLE TO THE DISABLED. Said parking spaces must remain open to employees and customers and may not be occupied by inventory storage or display. 3. That the petitioner must obtain administrative Type II Site Plan approval prior to occupancy. Said Type II Site Plan review must include the submittal of an approved West Virginia Division of Highway’s (WVDOH) access agreement/permit for parking lot access from Hartman Run Road, which is considered a part of the West Virginia State Highway System. 4. That the “Automotive Sales” use for which conditional use approval is granted herein shall not be situated upon, occupy, nor utilize that portion of Parcel 16 of Tax Map 31 zoned as R-1A, Single- Morgantown Board of Zoning Appeals Page 3 of 10 July 18, 2018 Minutes  Family Residential District, which has frontage along and is directly accessed from Mineral Avenue. The term “utilize” shall mean: a. Any activity directly or indirectly related to the conduct or operation of the subject “Automotive Sales” use business; b. The parking of vehicles (e.g., employee, customer, etc.), trailers, equipment, etc.; c. The storage or display of inventory; or, d. Signage containing commercial copy related to the subject “Automotive Sales” use. Meehan reminded Mr. Mansberger 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. CU18-06 / Cheat Lake Animal Hospital / 1830 Listravia Avenue: Request by B. Jean Meade, on behalf of Cheat Lake Animal Hospital, for approval of a conditional “Veterinary Clinic” use; Tax Map 33, Parcels 41 and 42; PRO, Professional, Residential and Office District. Whitmore presented the Staff Report. Meehan recognized Jean Meade of 88 Horton Lane, on behalf of Cheat Lake Animal Hospital and her partner Jenny Fallon, who provided history of how the hospital originated. Meade explained the services and programs offered by the hospital and noted they have outgrown their facility and therefore need a place to service cats and other exotic animals. Meade referred to the parking lot and stated they have not had the property surveyed, however she obtained a copy of the deed along with measuring the road frontage to determine the property is part of parcel 41 and noted they will not be encroaching onto the right-of-way. There being no further questions or comments by the Board, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. Meehan recognized Ed Keepers of 1818 Listravia Avenue who expressed concerns with the property being in the floodplain and possible runoff to his property. Keepers asked if canines will be served and for hours of operation. Meade stated there would be no canines and noted they have a 24-hour emergency service facility located in Cheat Lake and therefore their hours will not exceed 7:00 p.m. Meade referred to the parking area and stated they do not intend to extend the lot. Meade noted a portion of the current spaces will be taken out and made green space and therefore would not contribute to runoff. Benison asked for the previous zoning classification and when the parcel was reclassified as PRO District. Whitmore stated he did not have specific information but noted the PRO District has historically been used for legislative and judicial intent to create a buffer zone between businesses and residential areas. Whitmore provided further explanation on the property and surrounding zoning districts. Meade stated the main purpose of the hospital to prevent interactions between dogs and cats and therefore only cats and exotic animals will be served at this location. Morgantown Board of Zoning Appeals Page 4 of 10 July 18, 2018 Minutes Benison asked if patrons will be advised of the emergency clinic available in Cheat Lake. Meade confirmed. Whitmore noted that stormwater management is managed by the Morgantown Utility Board and is part of the permitting process. There being no further comments, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Meehan noted the parking could be brought before the Board for a variance in the future. Whitmore confirmed and stated the parking will have to concur with the code. Benison asked if there will be a need for an accessory structure. Meade stated that Republic Services may require an enclosure around the dumpster but no other structures are planned related to the business. Cook made a motion to find in the affirmative for all of the Finding of Facts for CU18-06 as presented; seconded by Meehan. 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: The property was previously used as a dental office and the proposed use is expected to generate no more traffic to the area during business hours. The clinic is expected to have no more than 2 veterinarians working at a time and with 30-minute appointments, it is not expected that more than 2-4 cars would be entering and/or leaving the parking area per hour. The veterinary clinic will be used as a satellite of Cheat Lake Animal Hospital which will provide emergency and after-hours services to clients of the new location therefore eliminating the potential for afterhours traffic. Finding of Fact No. 2 – Safety from fire, panic, and other danger is not jeopardized, in that: The proposed use should not generate any additional concerns for fire, panic or danger than the previous dental building. The clinic will have medical grade oxygen in use and tanks will be secured in compliance with OSHA requirements. Otherwise there are no dangers in excess of residential usage. Finding of Fact No. 3 – Provision of adequate light and air is not disturbed, in that: There are no plans to alter the lighting previously used by the dental business. There will be no air emissions related to the business being conducted. Finding of Fact No. 4 – Overcrowding of land does not result, in that: The footprint of the existing building and parking lot will not be altered. Finding of Fact No. 5 – Undue congestion of population is not created, in that: As stated in 1 above it is not expected that the number of clients entering the facility will exceed those for the previous dental office. Likewise, it is doubtful that the number of staff will exceed previous use. It is expected that no more than 6 staff members would be present at any one time. Veterinary students and technicians may rotate through the facility for teaching purposes but would be limited to 1 or 2 individuals at a time. 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: This business should not have any impact on the above in that it is not expected that the demands on Morgantown Board of Zoning Appeals Page 5 of 10 July 18, 2018 Minutes  water and sewage will exceed the previous dental business and there will not be any permanent residents at the facility therefore there will be no increase demand on transportation, schools, parks or other public requirements. Finding of Fact No. 7 – Value of buildings will be conserved, in that: The value of the building is expected to be conserved or increased as although there are no structural concerns with the building, it has fallen into disrepair and necessary repairs will be made, the building will be painted, parking lot will be resurfaced and striped and landscaping will be improved. Finding of Fact No. 8 – The most appropriate use of land is encouraged, in that: The property has previously been used as a medical facility and will continue to be used in this manner. There is not a cat and exotic veterinary clinic in the Morgantown area and this will provide a much- needed service for the citizen of the city. Sixty-eight percent of all households have cats in the US and this number exceeds the number of dogs. Cats are often fearful when forced to wait in a noisy waiting area and this stress can adversely affect health and diagnostic testing. Cook moved to grant approval for Case No. CU18-06 as presented with the revised staff recommended conditions; seconded by Meehan. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. That the beneficiary of this conditional use approval is specific to the petitioner’s related business organization and that said beneficiary may not be transferred without prior approval of the Board of Zoning Appeals. 2. That the petitioner must obtain minor subdivision approval from the Planning Commission, prior to occupancy, to consolidate Parcels 41 and 42 of Tax Map 33, via survey plat with metes and bounds description or via deed covenant in accordance with Section 1363.02(B)(3) provisions. 3. That the petitioner must obtain administrative Type II Site Plan approval as a part of the building permit approval process. Said Type II Site Plan review must include the submittal of an approved West Virginia Division of Highway’s (WVDOH) access agreement/permit for parking lot access from Sturgis Avenue, which is considered a part of the West Virginia State Highway System. 4. That the petitioner must comply with related parking design, development, and surfacing requirements provided in Article 1365. 5. That the existing parking lot to the south of the principal building may not provide direct access to Listravia Avenue, so that related commercial traffic is restricted to Sturgiss Avenue thereby mitigating potential traffic impact from the adjoining R-1A District. 6. That existing parking spaces located between Sturgiss Avenue and the principal building’s front façade must be removed and properly landscaped prior to occupation, thereby: a. Reducing potential safety conflicts and ensuring the least interference with traffic movement [Section 1365.09(B)(1)]. b. Eliminating the nonconforming condition of the aisle serving said spaces from being located within the public right-of-way [Section 1365.09(A)(4)]. c. Eliminating the nonconforming condition of parking spaces located between the front façade of the building and the street right-of-way in the PRO District [Section 1341.06(B)]. 7. That no outdoor kennels, outdoor storage areas, or the like may be developed on the premises of the “Veterinary Clinic” for which conditional use approval is granted herein. Morgantown Board of Zoning Appeals Page 6 of 10 July 18, 2018 Minutes Meehan reminded Ms. Meade 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. V18-26 / Paugh / 439 Legion Street: Request by Mike Paugh for variance relief from Section 1333.04 to encroach into minimum rear setback standard; Tax Map 7, Parcel 38; R-1, Single-Family Residential. It was noted that the petitioner was not present. D. V18-29 / Tingler / 563 Killarney Drive: Request by Scott Tingler for variance relief from Section 1333.06 concerning maximum building height; Tax Map 55, Parcel 17; R-1, Single-Family Residential. Whitmore presented the Staff Report. Meehan recognized Scott and Amy Tingler of 563 Killarney Drive who stated they would like to expand the attic space to serve as a place for homeschooling their children due to a recent bullying incident at Suncrest Elementary School. S. Tingler noted the initial footprints of the building included 10 foot ceilings but they will be altering the plans to include 8 foot ceilings to offset the height of the structure. Benison asked how many feet would be reduced by altering the plans. S. Tingler stated that each floor would be a foot less and therefore a reduction of 2 feet total. Benison inquired if the variance would be for 3.5 feet and S. Tingler confirmed. Cook asked how many bedrooms exist in the home. S. Tingler stated there are five total bedrooms in the single-family dwelling. Benison asked if the attic would be designated as the homeschool area. S. Tingler confirmed. Cook asked how many bedrooms would be utilized in the house. S. Tingler stated they have three kids and therefore four bedrooms would be utilized and the guest room available as needed. There being no further questions or comments by the Board, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being no comments, Meehan declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Meehan expressed favor of the petition as there has been no opposition from neighbors after being notified and advertised. Benison referred to the Staff report and the design modifications noted to decrease the pitch of the roof and install dormers which would not require a variance. Meehan noted they have already modified the design to decrease the height of the ceiling by 2 feet. Whitmore noted that Staff has not received revised building permits to reflect the modified designs. Morgantown Board of Zoning Appeals Page 7 of 10 July 18, 2018 Minutes Cook expressed that it is the job of the Board to preserve neighborhoods by following the code and that other options are available. Cook noted the guest bedroom could be utilized for homeschooling purposes. Benison noted the neighborhood is densely populated and that if the variance is granted then the structure would be out of proportion with others in the neighborhood. Cook expressed that approving the variance would not preserve the integrity or design of the area. Benison asked if additional roof modifications are reasonable. S. Tingler stated the question should be referred to an Engineer but noted that altering the roof truss system would alternate the low-pressure points of the house. Benison suggested to table the petition to allow for the petitioner to explore other design options. S. Tingler stated he could consult with his Engineer to explore other options to modify the roof line. Whitmore noted any design modifications to the original plans need to be submitted by August 10 to the Planning Division in order to be considered on the August 15 BZA hearing. Cook made a motion to table V18-29; seconded by Meehan. Motion carried unanimously. E. V18-30 / Birurakis / 435 Cobun Avenue: Request by Bob Birurakis for variance relief from Section 1335.05 concerning encroachments into setbacks; Tax Map 29, Parcel 581; R-1A, Single-Family Residential. Whitmore presented the Staff Report. Meehan recognized Bob Birurakis of 1160 Richwood Avenue who stated the request is for a wheelchair lift to help a 92-year-old have access to outside. Birurakis provided further explanation on plans for the ramp and stated the ramp would stick out into the right-of-way even if folded. He noted the existing stairs already encroach into the right-of-way. Benison asked if there is a way to configure the lift to exit a different direction and not onto the sidewalk right-of-way. Birurakis stated he has never seen a lift oriented for that direction and noted they would still need the variance for the wheelchair lift itself. Birurakis noted that he has met with the City Planner and City Engineer to gain ideas in how this lift could be installed and he is open to ideas. Whitmore expressed that changing the orientation in the lift exit could cause issues with desired accessibility objectives as it relates to siding and safety. There being no further questions or comments by the Board, Meehan asked if anyone would like to speak in favor or in opposition to the variance petition. There being no comments, Meehan 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 V18-30 as revised by Staff; seconded by Cook. Motion carried unanimously. Morgantown Board of Zoning Appeals Page 8 of 10 July 18, 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: The Board of Zoning Appeals’ conditions requiring review and approval by the City Engineer’s Office are intended to ensure any encroachment into the right-of-way and onto the public sidewalk by the proposed wheelchair lift facility is limited to temporary use or operation, thereby mitigating potential tripping hazards to the general public. 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 wheelchair lift facility appears to remove an architectural barrier that is restricting access to the principal building by persons with physical mobility constraints. There does not appear to be an alternate means of achieving accessibility to the principal building, given the small parcel subdivision layout and development pattern established in the historic Greenmont Neighborhood. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The proposed wheelchair lift facility appears to remove an architectural barrier that is restricting access to the principal building by persons with physical mobility constraints. The variance appears to provide a reasonable accommodation, strengthened by the Board of Zoning’s Appeals’ conditions requiring review and approval by the City Engineer’s Office; requiring maintenance and good working order; and, and requiring removal of the facility once it is no longer function or of service. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The accommodation appears reasonable in ensuring access to the principal building by persons with physical mobility constraints, which is carefully balanced by the Board of Zoning Appeals’ conditions requiring review and approval by the City Engineer’s Office to ensure public safety along the frontage sidewalk. Cook referred to the conditions listed in the Staff report and asked if the concrete base would have to be torn out when the wheelchair lift is no longer needed. Whitmore explained that the concrete base would be considered a patio per the Planning and Zoning Code, which does not have minimum setback standards. Whitmore stated that anything above grade would have to be removed per the conditions. Cook moved to grant approval for Case No. V18-30 as presented with staff recommended conditions; seconded by Benison. Motion carried unanimously. NOTE: The following conditions were included in the motion. 1. Installation shall be reviewed and approved by the City Engineer’s office, in accordance with the traditional building permit review process. 2. Any encroachment by the proposed wheelchair lift facility into the public right-of-way must be reviewed and approved by the City Engineer and shall be temporary in nature only (e.g., only while lift is operating, etc.), thereby mitigating potential tripping hazards to the general public. 3. The proposed wheelchair lift be shall be maintained and kept in good working order, and shall be removed by the property owner once the lift facility is no longer functional or of service. Morgantown Board of Zoning Appeals Page 9 of 10 July 18, 2018 Minutes Meehan reminded Mr. Birurakis 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. V18-31 / Sions / 354 Overdale Street: Request by Kevin Sions for variance relief from Section 1331.08 to allow an accessory structure to be placed between a principal structure and street on a corner lot; Tax Map 36, Parcel 214; R-1, Single- Family Residential. It was noted that the petitioner was not present. Benison moved to table V18-26 / Paugh / Legion Street; seconded by Meehan. Motion carried unanimously. Benison moved to table V18-31 / Sions / 354 Overdale Street; seconded by Meehan. Motion carried unanimously. V. ANNOUNCEMENTS: None. VI. ADJOURNMENT: 8:15 p.m. MINUTES APPROVED: August 15, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 10 of 10 July 18, 2018 Minutes