Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:43 p.m. July 25, 2018 Council Chambers MEMBERS PRESENT: Harrison Case, Chris Benison, Kevin Meehan, and Heidi Cook MEMBERS ABSENT: None STAFF: Christopher Fletcher, AICP and Ryan Simonton, Esq. Case asked if the petitioner had an attorney present. Darnell stated the attorney was not present and they would represent themselves. Case offered the chance to postpone if the petitioner would like their attorney present. Darnell declined and stated they would like to proceed with the hearing. 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. IV. NEW BUSINESS: A. BA18-02 / Darnell / 209 Willowdale Road: Request by Brock Darnell for an Administrative Appeal concerning a “Functional Family Unit” determination at 209 Willowdale Road; Tax Map 14, Parcel 314; R-1A, Single-Family Residential District. Case recognized Brock Darnell of 209 Willowdale Road who stated that his mother purchased the home for him and his brother to live while attending WVU. Darnell noted that along with his brother, the other roommates have been friends since childhood and they all lived together the previous year. Darnell stated they were not aware of the two-unrelated and expressed he understands why the rules are in place. Case noted the appeal is to argue that the roommates are a functional family unit as they lived together the previous year. Darnell confirmed and stated he was told that argument is irrelevant. Case asked if the petitioner had a chance to review the Staff Report. Darnell confirmed. Meehan asked if all residents of the home attend WVU. Darnell confirmed. Darnell expressed that he and his roommates are good kids and help their neighbors. Darnell stated he talked with surrounding neighbors to ensure that there are no issues or problems, in which none were noted. Morgantown Board of Zoning Appeals Page 1 of 6 July 25, 2018 Special Meeting Minutes Case recognized Ryan Simonton, City Attorney, who stated that Chris Fletcher, Development Services Director for the City of Morgantown, would present the City’s determination based on the Staff Report. Fletcher provided further explanation and clarification on the background of a “functional family unit”. Fletcher presented the following prepared hearing statement: College and university communities have unique local housing market trends and social pressures. Transient student households and lifestyles are often cited as the source of disturbance and conflicts with permanent family-like households in traditional single-family residential neighborhoods. This transformational trend is referred to as the “studentification” of once stable neighborhoods. The economics of housing college-aged students changed significantly around the turn of the century. Lower mortgage rates, higher rental rates, tax benefits for owning a second home, and limited on-campus housing have given rise to parents purchasing single-family homes for their children. Realty generally appreciates during the four to six years their child or children are enrolled in school and extra bedrooms can be rented to roommates providing positive cash flow. This transformation erodes the effectiveness of local efforts to mitigate adverse impacts of “studentification” on the desirability and sustainability of traditional single-family neighborhoods. More frequent sale transactions often result in inflated property values, which reduces housing choice across income spectrums; drives middle and low-income residents further from the urban core; and, stimulates urban sprawl. This contributes to higher costs of living, traffic congestion, increased costs of delivering public services and utilities, environmental impact, and more. The appraisal and mortgage process between single-family, owner-occupied dwelling units and single-family, renter-occupied dwelling units is very different. Once a single-family house is converted from ownership to investment property, it is very difficult for that unit to become owner- occupied again due to how its value is viewed by the market and the lending industry. This transition erodes homeownership opportunities and neighborhood stability. Morgantown is no different than other university communities across the country faced with student housing challenges and opportunities, and like many university communities, we learned that the previous “no more than three-unrelated” standard no longer protected our single-family neighborhoods on the edges of campus. Over a deliberative 18-month period, the City’s Planning Commission and Legal, Planning, Engineering, and Fire Departments and Code Enforcement Division worked with Robert Bastress, Law Professor at West Virginia University for review and guidance on what tailored strategy Morgantown could pursue given statutes and case law specific to West Virginia. In March 2010, the Planning Commission enthusiastically and unanimously forward the “Functional Family Unit” ordinance to City Council, which was passed in July and became effective in September 2010. The legislative intentions of the “Functional Family Unit” ordinance included: Morgantown Board of Zoning Appeals Page 2 of 6 July 25, 2018 Special Meeting Minutes  • Modernize of the City’s legislative approach to protecting the integrity and preserving the quality, character, and sustainability of traditional, permanent, owner-occupied neighborhoods. • Slow down the conversion of permanent owner-occupied, single-family dwelling units to transient student, investment properties in the R-1 and R-1A Zoning Districts. To the case at hand, the definition provided in Section 1329.02 of the Planning and Zoning Code of “Functional Family Unit” places clear primacy on the members’ relationship being of a permanent and distinct domestic character, where a demonstrable and recognizable bond exists to provide for the basic material needs of each other. Subsections (b) and (c) provide two criteria of when a “functional family unit” is presumed not to be present. The second presumption criterion in subsection (c) provides that occupants shall be presumed not to be a “functional family unit” if such dwelling unit contains three (3) or more college students over the age of sixteen (16) years. The petitioner has admitted occupants of 209 Willowdale Road are attending West Virginia University. The petitioner has therefore provided clear and convincing evidence that the occupants are properly presumed not to be a “functional family unit” under criterion (c). The first presumption criterion in subsection (b) provides that occupants shall be presumed not to be a “functional family unit” if such dwelling unit contains three (3) or more unrelated persons whose association is temporary or seasonal in character or nature or a group whose sharing of a dwelling unit is merely for convenience and economics. The sharing of a dwelling unit by college students confirms convenience, in terms of shared lifestyles, proximity to campus, etc., and economics, in terms of affordable housing, etc. To this point, the deed for the subject property, a copy of which is submitted as Exhibit 7, provides that the grantees were Robin F. and David L. Darnell. Staff understands that Robin Darnell, M.D., whom the petitioner identifies as the property owner in the administrative appeal application, is the mother of the petitioner. The petitioner has provided clear and convincing evidence that the occupants are properly presumed not to be a “functional family unit” under criterion (b). Subsection (d) provides, “The presumption set forth in subsections (b) and (c) of this definition may be rebutted by sufficient evidence of the characteristics set forth in subsection (a) of this definition”. The course of rebutting the presumption criteria enumerated in subsections (b) and (c) is discretionary and not compulsory. In other words, subsection (d) does not involuntarily exclude the presumption criteria if in the event characteristics set forth in subsection (a) are present. Subsection (a)(2) provides for establishing stability, in that a demonstrable and recognizable bond exists to provide for the basic material needs of each other. Seven (7) discretionary examples to demonstrate such stability are provided in subsection (a)(2). Of note is subsection (a)(2)(C), “Whether or not different members of the household have the same address for the purposes of voter registration; drivers’ licenses; motor vehicle registration; the filing of taxes; summer or other Morgantown Board of Zoning Appeals Page 3 of 6 July 25, 2018 Special Meeting Minutes residences.” The petitioner has stipulated that all occupants do not share the same address in this regard. The petitioner claims that subsection (a)(2)(F), for which a lease with Corwin Properties was submitted, is sufficient evidence rebutting the presumption criteria. The petitioner fails to recognize or admit that subsection (a)(2)(F) requires the applicant to show, “…that the householders have been living together as a ‘functional family unit’ for twelve (12) consecutive months or more…” The petitioner’s claim that a joint-tenancy lease constitutes a “functional family unit” is without relevance or merit. Merely living together does not make a group of individuals a single housekeeping unit, per the “functional family unit” definition. To this point, that is why the “functional family unit” definition provides several examples to demonstrate stability of a functioning family unit. The petitioner fails to prove that, either presently or during the 2017-2018 academic year, the subject householders function as a family unit as required; particularly, given the lack of shared addresses provided for in subsection (a)(2)(C). Further, the petitioner does not account for the whereabouts of Mr. Jordan Covelli, the fourth listed tenant on the 412 McLane Avenue lease with Corwin Properties, who would be presumed to be included in the functional familial bond asserted by the petitioner. The absence of Mr. Covelli in any documentation presented pertaining to 209 Willowdale Road, or even mentioned by the petitioner, further implies a standard occupancy characteristic of college roommates sharing a dwelling unit for convenience and economics, as opposed to a “functional family unit.” With evidence presented in the Application for Determination of a Functional Family Unit, and the newly presented 412 McLane Avenue rental agreement provided in the Petition for Administrative Appeal, the Planning Director does not have a responsibility or discretion to find that the occupants of 209 Willowdale Road meet the “Functional Family Unit” standards of review and determination. Rather, the Planning Director is obligated to determine that the subject group of college students over the age of sixteen years sharing the single-family dwelling unit at 209 Willowdale Road merely for convenience and economics, does not constitute a “Functional Family Unit.” The City requests the Board deny the petitioner’s Administrative Appeal under Case No. BA18- 02 and issue written findings and conclusions as stated on Page 10 of the Board’s packet. Case offered Darnell a chance for rebuttal. Darnell stated that money is not an issue as his mother pays the mortgage and his roommates are financially stable. Darnell referred to the term “studentification” and expressed the word is derogatory and characterizes all students as mean and disruptive. He expressed they would never tear up a property owned by his mother and he and his roommates take good care of the property. Darnell expressed that his roommates may not be blood, but they are his family as they have a close bond and have grown up together. Benison asked when the property was purchased. Darnell stated the house was purchased in May of 2018. Morgantown Board of Zoning Appeals Page 4 of 6 July 25, 2018 Special Meeting Minutes Benison referred to the definition of “functional family unit” and asked if there is a biological relationship component. Fletcher referred to Addendum B in the meeting packet to further explain the definition of “family” and “functional family unit” and stated one would have to meet the criteria listed in the definition to be considered a family. Benison asked if there are disclosure requirements when purchasing property. Case noted that interactions with realtors are irrelevant and outside the scope of the case at hand. Fletcher expressed that purchasers should explore their due diligence by researching zoning classifications prior to buying the property. Benison asked if the current use is less compatible with current zoning regulations due to being in an R-1A zoning district. Fletcher stated that prior to October 2010, the rule was no more than three-unrelated persons citywide regardless of zoning classification, which no longer worked to protect and preserve neighborhoods. Fletcher noted it was then decided to reduce the number of unrelated persons in the R-1 and R-1A Districts to no more than two-unrelated, as much of the City’s housing stock includes three plus bedroom single-family dwelling units. Fletcher noted that all other zoning districts follow the building code when deciding the number of persons permitted in a dwelling unit. Case offered Darnell another chance for rebuttal. Darnell declined. 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 administrative appeal. Case recognized the mother of the petitioner, Robyn Darnell of South Charleston, WV, who stated they purchased a home for her two sons as they will both be going to medical school and will be living in Morgantown for the next ten years. Darnell stated she was never made aware of a zoning ordinance when working with a realtor to purchase the property. Darnell expressed it is upsetting to have to kick someone out of their home as the boys do not pay rent and they are close friends with the families. Darnell stated they have a daughter who will come to WVU in the fall and will live in the home. She expressed that Morgantown has not accepted them kindly and it is unfortunate as her kids may want to live and work in the City someday. Darnell stated she is arguing for the two boys as they only need this place to stay for the next ten months and she does not want to have to choose which kid to kick out. There being no further public comments, Case declared the public hearing closed. Case reminded the Board that their role is to decide if the Planning Division was correct in their determination of the “functional family unit” at 209 Willowdale Road. Meehan expressed that a “functional family unit” was determined correctly by the Planning Division. Case referred to the definition of “functional family unit” and stated it is clear that all four residents of the house are college students as defined in the code and therefore are not a “functional family unit”. Case noted that residents do not share a common address for voter registration, driver licenses, motor vehicle registration and filing of taxes. Morgantown Board of Zoning Appeals Page 5 of 6 July 25, 2018 Special Meeting Minutes Case noted that evidence was submitted to show three of the four residents lived together for one year prior, but they would have to show they were living as a “functional family unit” in order for that evidence to qualify as sufficient. Case expressed that based on his review, there is no evidence in the record that would rebut the presumption that as college students they do not meet the definition of a “functional family unit’. Case expressed the determination made by Staff is proper. Cook made a motion to deny Case No. BA18-02 and accept the Findings and Conclusions as submitted by Staff; seconded by Meehan. Motion carried unanimously. Case reminded Mr. Darnell 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: 7:25 p.m. MINUTES APPROVED: August 15, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 6 of 6 July 25, 2018 Special Meeting Minutes