Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 p.m. August 15, 2018 Council Chambers 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. Minutes for the July 18, 2018 hearing. No corrections noted, minutes approved as presented. B. Minutes for the July 25, 2018 hearing. No corrections noted, minutes approved as presented. III. UNFINISHED BUSINESS A. V18-26 / Paugh / 439 Legion Street: Tabled at 18 JUL 2018 hearing. Whitmore advised the Board that the petitioner has withdrawn this variance petition and no further action was required by the Board. B. V18-29 / Tingler / 563 Killarney Drive: Tabled at 18 JUL 2018 hearing. Whitmore advised the Board that the petitioner has withdrawn this variance petition and no further action was required by the Board. C. 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. TABLED AT 18 JUL 2018 HEARING. Whitmore presented the Staff Report. Case recognized Kevin Sions of 354 Overdale Street who stated the variance is necessary to build a playhouse and provided further explanation of the project. Morgantown Board of Zoning Appeals Page 1 of 12 August 15, 2018 Minutes Benison asked for further description of the fence. Sions stated the fence is white vinyl and encloses the backyard. There being no further questions or comments by the Board, Case asked if anyone would like to speak in favor or in opposition to the conditional use petition. There being none, Case declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Case asked the petitioner if he agreed to the five-foot setback condition listed in the Staff Report. Sions confirmed. Benison asked if the structure would be secured in the ground. Sions confirmed. Meehan made a motion to find in the affirmative for all of the Finding of Facts for V18-31 as presented 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 accessory playhouse structure will be located on the owner’s property of 354 Overdale Street. The structure will be inside a fenced in yard. The structure will not hinder other buildings, traffic, and/or parking. 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 layout of the property and location of existing principal structure (house) creates more yard space in the southern side of yard to accommodate the proposed accessory playhouse structure. There does not appear to be alternate location for the proposed accessory playhouse structure. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The portion of land the structure will sit on is the largest in yard area. Placing the accessory playhouse structure in the proposed location allows for potential additions to the rear of principal structure (house), i.e. sunroom/porch, deck. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The proposed structure should enhance the quality of yard/property. The variance allows for future additions to the principal structure and overall use of property to be effective, without encroaching onto or diminishing the rights of neighboring residents or adversely impacting the public realm. Cook moved to grant approval for Case No. V18-31 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 structure (playhouse) may not be located closer than five (5) feet from the rear or side property boundary. Morgantown Board of Zoning Appeals Page 2 of 12 August 15, 2018 Minutes Case reminded Mr. Sions 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. TABLED AT THE 27 JUN 2018 HEARING. NOTE: Cases. V18-27 and V18-28 remained tabled at the 18 JUL 2018 hearing at the request of the petitioner. Having previously heard the Staff Report for V18-27 and V18-28, at the Board’s July 18, 2018 hearing, Case recognized Jeffrey Ray of Bowles Rice, LLP, on behalf of Appalachian Cannabis Company, LLC, who requested the Board hear from the owner of the property for further explanation of the business. Case recognized Chris Yeager, owner of Appalachian Cannabis at 2045 University Avenue who provided history and further explanation of the business. Ray asked that the business be allowed to continue operating as the status quo by utilizing existing parking and signage. Ray noted the previous business operated with seven parking spaces and provided further explanation of the proposed signage. Ray noted the existing right-of-way has existed since University Avenue was first constructed and stated that the City Attorney has agreed to work with them by either abandoning or licensing the right-of-way which would eliminate encroachment. Ray expressed that denying the parking would doom the business forever and replacing the signage would be a financial hardship. Whitmore referred to Case No. V18-27 and stated the application is for the use to be permitted without any parking. Ray said it was his understanding the variance is for less than eight spaces and to operate until the right-of-way issue is resolved with the City, and that he was working with the City Attorney to remedy the parking issue. Whitmore stated that he spoke with the City Attorney earlier that afternoon and there have been no negations with the petitioner as claimed and reiterated the variance is for relief from on-site parking. Case asked if there is a commitment or something in writing from the City Attorney. Ray stated there was a verbal discussion and he would have to check his email to see if anything was put in writing. Case stated the Board has no control over the right-of-way. Morgantown Board of Zoning Appeals Page 3 of 12 August 15, 2018 Minutes Ray referred to a previous case that went before the BZA in 1980 and stated the Board ruled parking was consistent with the area and should be permitted. Ray stated he would get a copy of the case to Staff to be entered in to the record. Whitmore stated that it is 2018 and the use does not have a certificate of occupancy and does not meet the minimum parking standards as there are no available spaces on-site. Whitmore referred to the Staff Report and stated the only available place to create a parking space would be to the rear of the structure. Case referred to the Staff recommendations and expressed there is no room to create parking spaces with the addition of a sidewalk. Benison noted the business is located along a heavy pedestrian right-of-way. There being no further comments and with no objections by the Board, petitioner or public, Case asked if anyone would like to speak in favor of or in opposition to either of the two (2) variance petitions [V18-27 and V18-28]. Case recognized Bill Morlino, former owner of 2045 University Avenue, who referred to the case in 1980 that determined parking was exempt from Third Street to Campus Drive by Circuit Judge Dupont. Morlino stated the City did not appeal the decision to the State Supreme Court and noted the parking spaces are grandfathered and protected by a court order. Morlino stated the sign has existed since 1965 and would be a huge financial hardship to remove. Meehan asked when he sold the property to Yeager. Morlino stated the property sold in November of 2017. There being no further comments, Case declared the public hearing closed and asked for Staff recommendations on the combined Staff Report, which were read by Whitmore. Case noted the petitioner wants to have parking available and if the Board waives the parking requirement then they may not be able to provide parking in the future due to right-of-way issues. Case noted there is no legal evidence before the Board to show a grandfathered right to use the spaces. Ray said the main goal is to continue providing customer parking until the right-of-way issues are resolved with the City. Ray noted he did not anticipate the City prohibiting parking as there is a 40-year history of those parking spaces being used. Benison questioned if the petition would be considered a provisional or temporary parking variance and if so, expressed it would be inconsistent with what a variance should be. Benison asked where the boundaries of the property are located and stated there needs to be a survey completed. Case asked if the variances are the only hold up to the business receiving a Certificate of Occupancy. Whitmore stated that the variances need granted prior to the Planning Division signing off on the Certificate of Occupancy and stated there was also an issue with fenestration. Morgantown Board of Zoning Appeals Page 4 of 12 August 15, 2018 Minutes Ray stated that Appalachian Cannabis will address the right-of-way issue at a later time with the City but asked the City to grant the variances so the business can continue to operate with less than eight parking spaces. Yeager stated they have not done anything with the parking or sign because they were waiting on decisions made from the BZA hearing. Case referred to the condition made by Staff to construct a sidewalk and asked if that is feasible for the petitioner. Yeager stated he is willing to do whatever is needed in order to operate the business and expressed that losing the parking would be detrimental to his business. Board members discussed the number of parking spaces that should be granted for relief versus a variance to eliminate a parking requirement entirely. Benison noted there is not a survey available to review property boundaries. Case expressed the language in Finding of Fact 1 is not sufficient as the petitioner does not want to remove parking spaces. Whitmore stated the Board could review the Findings of Facts separately and strike that portion. Benison addressed the orientation of parking with the installation of a sidewalk. Whitmore stated the Board does not have the ability to provide specifications on the orientation of parking and provided further explanation on the distance from the intersection to the drive isle. Whitmore stated that there is no parking available as is right now and the variance petition would be to waive the parking requirement of eight spaces. Case made a motion to find in the affirmative for all of the Finding of Facts for V18-27 with modification to Finding of Fact 1; seconded by Cook. Motion carried 3-1 with Meehan voting nay. 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 risk of having no parking rather than eight (8) parking spaces is solely on the property owner. With the exception of an existing temporary truck loading space, curbside parking along Second Street is prohibited by yellow curb markings. Public parking is available at metered spaces one block from the petitioner’s site along Grant Avenue and at the University Place Parking Garage one and one-half blocks from the petitioner’s site. Noted on-street parking restrictions and public parking opportunities within a walkable distance of the site should serve to mitigate undue on-street parking congestion resulting from the removal of parking spaces encroaching into the University Avenue right-of-way. 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: Nonconforming conditions that may have been protected for the benefit of previous building occupant were abandoned in November 2016, twelve months following the closure of the former Sunnyside Superette “Neighborhood Convenience Store” use and the building’s continued vacancy. Accordingly, current and future occupants of the building are therefore left without the physical space necessary to provide adequate on-site parking spaces meeting minimum number, location, and design standards. 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 5 of 12 August 15, 2018 Minutes  The elimination of the parking spaces encroaching into the University Avenue right-of-way as a result of the abandonment of the related nonconforming condition results in no physical space to develop on- site parking spaces that meet minimum parking space number, location, and design standards. The petitioner, like other commercial establishments within two blocks north and south of the subject site, can provide goods and services to meet the consumer needs of walk-up customers, rather than removing the property’s potential contribution to commercial use offerings as desired within the immediate University Avenue mixed-use corridor. 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 continue to operate the property as it has operated for the last several decades. The area is designated for retail use and not granting the parking variance will prevent the business from operating and will prevent future businesses from operating in the space. Case moved to grant approval for Case No. V18-27 as presented without Staff recommended conditions; motion died for lack of a second. Case asked if members of the Board would be more comfortable adding the recommendations. Board members confirmed. Case withdrew his motion. Cook moved to grant approval for Case No. V18-27 as presented with Staff recommended conditions; seconded by Case. Motion dies 2-2 with Meehan and Benison voting nay. Case noted Benison voted in the affirmative for the Finding of Facts and stated the Board has already found the petitioner is entitled to the variance based on all the factors in the code. Benison understood. Case restated the motion that Cook moved to grant approval for Case No. V18-27 as presented with Staff recommended conditions; seconded by Case. Motion passes 3-1 with Meehan voting nay. NOTE: The following conditions were included in the motion. 1. That an eight (8) foot wide sidewalk shall be constructed, to the satisfaction of the City Engineer, by the petitioner from the edge of the pavement of the University Avenue roadway, along the frontage of Parcel 131 of Tax Map 20, commonly known as 2045 University Avenue, in accordance with Section 1361.03(L), as illustrated below; and, 2. That the area between the front façade of the structure and the sidewalk described in Condition No. 1 shall be landscaped in accordance with Section 1361.03(K), as illustrated below. Morgantown Board of Zoning Appeals Page 6 of 12 August 15, 2018 Minutes  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. TABLED AT THE 27 JUN 2018 HEARING. NOTE: Cases. V18-27 and V18-28 remained tabled at the 18 JUL 2018 hearing at the request of the petitioner. Case stated the sign was abandoned and is therefore does not qualify as nonconforming. Case noted there is not a replacement sign proposed and stated the Board would be granting relief for the structure of the sign to remain erected. Yeager provided further explanation of the existing sign and stated the sign is necessary for customers to locate the business. Yeager stated they plan on replacing the insert of the sign, but no changes will be made to the structure. Case asked if the Board would need to grant relief from the public right-of-way violation. Whitmore provided further explanation and stated that Staff is recommending denial of the sign based on conformity with the code and because it is located in the public right-of-way. Meehan expressed disfavor in the sign as it is nonconforming and a health and safety issue. Benison made a motion to find in the negative for all of the Finding of Facts for V18-28 as revised by staff; seconded by Meehan. Motion carried 3-1 with Case voting nay. NOTE: The following findings were 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 previous nonconforming status for the subject ground sign has been abandoned. Nonconforming sign abandonment provisions are intended to achieve, over time, conformity with present sign regulations, which serve to protect life and property and ensure fair and equitable application and enforcement, for the benefit the community and all who are obligated to comply with the sign regulations. 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 and which were not created by the person seeking the variance, because: The previous nonconforming status for the subject ground sign has been abandoned, and the protections for which were specific to the former Sunnyside Superette establishment. Morgantown Board of Zoning Appeals Page 7 of 12 August 15, 2018 Minutes  Finding of Fact No. 3 – The variance will not eliminate an unnecessary hardship and permit a reasonable use of the land, because: The subject ground sign encroaches into a public right-of-way thereby creating a public nuisance, for which the right to maintain is not afforded under the City’s Planning and Zoning Code. Additionally, the encroachment restricts development of pedestrian sidewalks to a substandard width along this primary street within the Sunnyside Overlay District. Finding of Fact No. 4 – The variance will not allow the intent of the zoning ordinance to be observed and substantial justice done, because: There appears to be a number of alternate ground and wall sign scenarios the petitioner can consider in meeting commercial messaging needs, without deleteriously encroaching into or obstructing the University Avenue public right-of-way. Meehan moved to deny approval for Case No. V18-28; seconded by Cook. Motion carried 3-1 with Case voting nay. Case reminded Mr. Ray and Mr. Yeager that the Board’s decisions 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. IV. NEW BUSINESS A. V18-32 / University Cafe / 2001 University Avenue: Request by Don Staples, Jr., on behalf of University Café, for variance relief from Article 1369 concerning signage; Tax Map 20, Parcel 152; B-2, Service Business District. Whitmore presented the Staff Report. Case recognized Don Staples, Jr. of 2001 University Avenue who stated he did not know a permit was needed to erect a new sign. Whitmore stated the signs are replacing the former “Rusted Musket” signs. He noted the sign would been permitted if erected within 90 days as it would have been considered nonconforming signage. There being no questions or comments by the Board, Case asked if anyone would like to speak in favor of or in opposition to the variance petition. There being none, Case declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Meehan questioned if the rear sign should be removed. Cook expressed that would be a hardship and added that sign would help customers locate the business. Cook made a motion to find in the affirmative for all of the Finding of Facts for V18-32 as presented 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: Morgantown Board of Zoning Appeals Page 8 of 12 August 15, 2018 Minutes  The proposed signage appears to be consistent with signage erected for previous occupants of the subject tenant space, which does not appear to have adversely impacted public safety or the public or private realms. 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 located at the corner of two major collector roads and would appear to benefit in communicating its location to pedestrian and vehicle passersby with signage that exceeds the maximum area standard, given the tenant space’s narrow storefront width for which the maximum wall sign area is determined. Additionally, vehicles traveling eastbound approaching the intersection from Campus Drive have no ability to see the wall signage on the front façade facing University Avenue, given the geometry of the intersection and the building’s front setback. Accordingly, signage on the rear façade appears sensible. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The unique geometry of the intersection, stop bar locations, and limited sight lines to view the wall subject signage, as well as the building’s setback, leave limited to no opportunity for vehicle passersby to adequately see and discern wall signage if sized within the maximum area parameters. 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 use requires adequate signage, which appears unfeasible under the maximum area standard and rear façade condition for the subject tenant storefront. Additionally, the proposed signage appears to be generally consistent with previous tenant was signage and appears to advance sign regulation purposes without unreasonably exceeding standards. Meehan moved to grant approval for Case No. V18-32 without conditions; seconded by Cook. Motion carried unanimously. Case reminded Mr. Staples 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. V18-33 / Boost Mobile / 749 Chestnut Ridge Road: Request by Josh Wray of CPA Wireless, on behalf of Boost Mobile, for variance relief from Article 1369 concerning signage; Tax Map 56, Parcel 4; B-1, Neighborhood Business District. Whitmore presented the Staff Report. Case recognized Josh Wray of 749 Chestnut Ridge Road who provided further explanation of the proposed signs and stated he already replaced the sign on the front of the building but is waiting for variance approval to erect the sign on the side of the building. Meehan noted there is a post-and-panel sign on Chestnut Ridge road. Wray confirmed and stated they would like the sign on the side of the building as traffic gets backed up in that area but expressed they mainly need the variance for the front sign. Morgantown Board of Zoning Appeals Page 9 of 12 August 15, 2018 Minutes Whitmore explained the variance would be for the total square footage of both signs and also for a sign to be located on the side façade of the building. There being no questions or comments by the Board, Case asked if anyone would like to speak in favor of or in opposition to the variance petition. There being none, Case declared the public hearing closed and asked for Staff recommendations, which were read by Whitmore. Whitmore noted the post-and-panel sign is owned by Suburban Lanes Plaza and not by Boost Mobile. Whitmore stated Staff recommends variance relief for signage to only be permitted on the front of the building. Cook made a motion to find in the affirmative for all of the Finding of Facts for V18-33 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 signage as designed, creates greater visibility that will enhance business. 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 needs greater visibility through adequate signage as proposed, due to the location of the business in the shopping center. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The variance for larger signs will eliminate the unnecessary hardship of residents, guests and emergency vehicles not being able to identify the property. The inability to locate the residence could cause traffic accidents or delays in emergency to the property. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The increased size of the signs will be an effective means to communicate with the pedestrian and motorize public at relevant locations. It should improve traffic safety. Cook moved to grant approval for Case No. V18-33 in the amount of 23.7 square feet of sign area and with the condition that the petitioner obtain building permit approval within thirty (30) days of variance relief approval; seconded by Meehan. Motion carried unanimously. Case reminded Mr. Wray 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 12 August 15, 2018 Minutes  C. V18-34 / The Vapor Room / 1397 Earl L. Core Road: Request by Jessica Seminerio Grapes, on behalf of The Vapor Room, 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 Chris Romeo of 1397 Earl L. Core Road who provided further explanation on the proposed signage and stated the sign would match the Defense in Depth sign which is located in the same plaza. Case recognized Garrett Richards, construction manager of Glenmark, who stated the wall sign for Defense In Depth is of similar area to The Vapor Room and forms the adjacent wall side. Meehan asked why the proposed signage needs to be larger than other area vendors. Richards stated the square footage of the sign will be smaller than the approved variance for Defense in Depth. Whitmore noted that variance relief is becoming common for this shopping plaza and gave examples of past cases that have been approved. There being no further questions or comments by the Board, Case asked if anyone would like to speak in favor of or in opposition to the conditional use petition. There being none, 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 V18-34 as revised by staff; seconded by Cook. 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 purpose of this variance is only to fill the provided space to be more appealing to the view of the building and to the adjacent business. 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: A larger sign is requested because the provided space for the proposed sign is too large for the maximum permitted sign area. The maximum allowed sign size will be unattractive in the space and will not compliment the other signs in the plaza. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The proposed sign is being requested to make better use of the provided sign space. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The requested sign will compliment all other lit signs in the Sabraton Plaza. Morgantown Board of Zoning Appeals Page 11 of 12 August 15, 2018 Minutes Meehan moved to grant approval for Case No. V18-34 as presented without conditions; seconded by Benison. Motion carried unanimously. Case reminded Mr. Romeo 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. V. ANNOUNCEMENTS: None. VI. ADJOURNMENT: 9:15 p.m. MINUTES APPROVED: September 19, 2018 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 12 of 12 August 15, 2018 Minutes