Board of Zoning Appeals

BOARD OF ZONING APPEALS MINUTES 6:30 p.m. December 12, 2019 Council Chambers MEMBERS PRESENT: Harrison Case, Chris Benison, Heidi Cook and Kevin Meehan MEMBERS ABSENT: Garrett Tomblin STAFF: John Whitmore 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 September 18, 2019 hearing were reviewed and approved. B. Minutes for the October 16, 2019 hearing were reviewed and approved. C. Minutes for the November 20, 2019 hearing were reviewed and approved. III. UNFINISHED BUSINESS: None. IV. NEW BUSINESS: A. V19-40 / Blue Sky Realty / 311 Beverly Avenue: Request by Jim Craig of Blue-Sky Realty for variance relief from Article 1339.05 concerning a setback encroachment at 311 Beverly Avenue. Fourth Ward Tax District, Tax Map 20, Parcel 10; R-3, Multi-Family Residential District & SSOD, Sunnyside South Overlay District. Whitmore presented the Staff Report for V19-40 and noted the petitioner is present. Case recognized James Craig, the applicant. Craig explained that he was there seeking relief to allow to replace the existing deck which is rotted and has pulled away from the house as the house was built about 40 years ago. The railing has rotted and pulled away from the deck, and the deck is pulling away from the house. The deck extended out into the City right of way. Craig noted he is proposing to build a new deck using pressure treated lumber, a new railing using vinyl clad aluminum, and to replace the wooden fence with a vinyl clad chain link fence. There is an 8-foot retaining wall built around the deck and this would prevent people from falling over. Craig also expressed desire to put a roof on the feature at some point in the future. There being no questions or comments by the Board, Case asked if anyone was present to speak in favor of or in opposition to the petition. There being none, Case declared the public hearing closed. Whitmore read the staff recommendations as follows: Morgantown Board of Zoning Appeals Page 1 of 9 December 18, 2019 Minutes  1. Board of Zoning Appeals to grant variance relief of three (3) feet so that the deck without a roof may extend to the front property boundary with the following conditions: a. No portion of the deck may encroach into the public right of way. b. The deck must be constructed within twelve months of granting variance relief. 2. Board of Zoning Appeals to grant variance relief of 2.5 feet so that the roof above the deck may extend to the front property boundary with the following conditions. a. No portion of the roof, eave, gutter etc. may encroach into the public right of way. b. The open and unenclosed front porch created by the roof improvement may not be subsequently enclosed. c. The roof above the deck must be constructed within 12 months of granting variance relief. Case summarized that the deck has reached the end of its useful and safe life and is failing. The proposal is a replacement deck that does not encroach into the City right of way but does require a variance. The second request is to perhaps put a roof over the deck, which would also require a variance. Reviewing Addendum B, this causes no noticeable harm to either the public or private properties that are near it. The second condition notes that as far as special conditions, a lot of these houses were built right up to the property line. This appears to compliment recent streetscape improvements. Finding of fact #3, this would allow the property owner to have a similar feature to other properties on the street have. Finally, with regarding finding number 4, as restated, the setback of the proposed deck and porch improvement appears to be in harmony with the predominant development patter on this block of Beverly Avenue. Cook made a motion to accept the four findings of facts as stated. Benison seconded. The motion carried unanimously. 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: Front deck and front porch features of adjacent structures appear to encroach into the minimum front setback standard without noticeable harm to the public realm or private properties. 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 predominant design of the three-hundred block of Beverly Avenue includes structures built at or near the front property boundary, with front porch or deck features. This design has traditionally been used to allow for pedestrian-scaled development patterns and resident privacy in urban built environments. The front deck or porch improvement at the petitioner’s site appears to complement recent streetscape improvements. Although the Sunnyside Overlay District incentive to develop with front setbacks closer than the R-3 District standard, the requirement does not appear to reflect the predominant setback pattern in this block of Beverly Avenue. Morgantown Board of Zoning Appeals Page 2 of 9 December 18, 2019 Minutes  Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: The setback of the proposed front deck and porch improvement appears to provide a similar pedestrian and streetscape environment as enjoyed by neighboring properties along this block of Beverly Avenue. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: The setback of the proposed front deck and porch improvement appears to be in harmony with the predominant development pattern along this block of Beverly Avenue. Cook made a motion to approve the variance V19-40 as presented with the Staff Recommendations/conditions listed above; seconded by Benison. Motion carried unanimously. Case advised Craig that the Board’s decisions 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. V19-41 / Scholar Hotel / 341 Chestnut Street: Request by Shanna Biser of Scholar Hotel for variance relief from Article 1331.06 concerning Full-Service Hotel use requirements in the B-4 District at 341 Chestnut Street. Third Ward Tax District, Tax Map 26A, Parcel 79; B-4, General Business District. Whitmore presented the Staff Report for V19-41 and noted the petitioner is present. Shana Biser, with Scholar Hotel stated that the hotel is seeking variance to provide large groups and others that come into town which they currently cannot do in house and that being the only hotel in the downtown district, they are hoping that we can provide additional services. Harrison discussed the business model for Starport Arcade and Pub, in addition to serving guests in the hotel, asked if the proposal would change access or remain as public. Biser states that the space would be open to the public and someone can take kids there, enjoy a nice evening with dinner and a drink. Biser also states that Starport Arcade and Pub would be occupying the entire ground floor of 341 Chestnut Street. Biser discussed hours and deferred to Starport Arcade representative Nicholas Marccisin. Marccisin noted that Starport Arcade does a lot of charity events, sponsor several sports teams. Harrison asked if they foresee a change in the overall business model of the arcade when Startport moves to the new space. Marccisin noted the hours would be changed with the space closing at 1 a.m. Harrison asked whose liquor license would be in use for the 21 and over late-night crowd. Marccisin noted they would be using the Scholar Hotel’s license, but they are trying to get their own. There being no questions or comments by the Board, Case asked if anyone was present to speak in favor of or in opposition to the petition and opened the public hearing. Morgantown Board of Zoning Appeals Page 3 of 9 December 18, 2019 Minutes Timothy Metz, Burroughs Street, Morgantown, WV and owner of Fallout Shelter. Metz asked if the question is really why do hotels have rules like this that they must follow and why does a restaurant bar connected to the hotel have to follow these rules as well. Metz noted that the use was not good for the city.. Metz noted that the use will make the general area more unsafe for pedestrians. Metz also noted that he was concerned that a hard liquor club frequented by students was going to be in that area. Metz noted that Starport has a long history of nuisances, claiming they broke city code by doing their construction for months in the dead of night without a permit. That Starport immediately got cited because they were doing all the remodeling at night and didn’t file for a permit. That their license is an A-2 1-2 private club by the WV ABCA, which means they are only supposed to have guests 21 and over, where 18 and over is ok with a guardian, and that there are frequently unattended child present on-site. That Starport Arcade has an event called “slip n booze” that they basically compete, drinking game with pinball and that WV ABCA made them stop that and that Starport Arcade have an event called called “porni-oquie” where they are showing video pornography in their place of business. Harrison noted that Mr. Metz time has expired. Case asked If anyone else present in favor or in opposition to this request wished to speak. Holly Roberts an employee of Scholar Hotel spooke about her experience with the hotel us and the current Starport Arcade location. Roberts noted the staff report imaging does show the awning where JW’s is and you can see the alley is next to the parking garage. There are three other clubs right there that let out. Roberts noted that she has worked overnights, and has seen the bars closing at 3+ a.m. Roberts stated that the Starport Arcade space will be closing at 1:00 a.m. and that the area is very well lit and very well policed. No further public comment was received. The petitioner was provided 5 minutes of rebuttal time. Biser spoke and said she wanted to touch on one thing, safety. All of the clubs close to the hotel let out at 3:30 in the morning. If that’s not a concern, I’m not sure what a new place shutting down at 1:00 a.m. would have any change. Marccisin states all our staff members have taking the TIPS training, that the side door is not for direct access to the space, and that private events are held on site with limited access as warranted. There being no further rebuttal, the Public Hearing was closed. Whitmore provided the Staff Recommendation Staff recommends approval of the variance as requested without conditions. Whitmore also explained that the use was approved in a gray area as a full-service hotel. The only variances on the dais are allowing for access to the arcade portion from the exterior and allowing that to be open to the general public during all hours of operation rather than just after 9:00. Case asked if members of the board have questions or concerns. Morgantown Board of Zoning Appeals Page 4 of 9 December 18, 2019 Minutes Cook mentioned that Starport Arcade and Pub is not asking for conditional use. Cook asked Whitmore if it is true that the code only allows certain bars to not have minors and they are asking for minors to be in during use and operation and if the city has looked into pedestrian/traffic issues? Case stated that it sounds like our code does not contemplate a business of the type that Starport is. Whitmore allowed that is accurate. The issue that Staff had when this initially came before the Planning Division, is that we recognize the revenue 60-40 for restaurant private clubs. The problem is that the revenue split is very narrow in that it does not include other activities of a business. In this case, it does not include merchandise or amusements, only food and drink. That required revenue practice is not uncommon for alcohol sales, but in the case of this specific business, that is something that has come up. Additionally, Staff cannot speak to the issue of minors in a private club, as that is not something the planning and zoning code covers. Case explained that he had been to the existing Starport Arcade location and you have the challenge of using it for different populations at different times of day. Benison asked if that represents fundamental incompatibility between the utilization of the hotel and arcade, and ff there is an issue with when minors are permitted in certain spaces, but that is within the WV ABCA, not our code. Case asked if by moving it down the street, does the Board create any different issues that are not already in existence with this business. Case states that if there are concerns about the way this business is operated, they may be beyond the scope of this hearing. I do think in terms of Mr. Metz, some of the representatives, discussed the access issue and crossing back and forth of the alley. If I’m reading this correctly, this board has already granted at restaurant/private club license with that some exterior entrance at least once before if not twice. 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 nature of the variance relates to an existing storefront entrance and permitted times of public access, which advances the expansion of the hotel as a “Full-Service Hotel” use. The existing built area will continue as previously established with a more holistic experience related to the hotel with accompanying food, beverage, and entertainment offerings without harm to the public realm and property rights. 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 subject property contains a covered drive lane to the parking garage that is adjacent to the Scholar Hotel guest rooms and on top of the proposed location for Starport Arcade. Guests of the Scholar Hotel can exit the hotel through a side door located in this drive lane and enter into the proposed Starport location through another door located in this drive lane without ever existing the property or walking onto a sidewalk. The ground floor tenant space having a front door of its own should not prohibit the property from being able to operate as a full-service hotel with a restaurant as the restaurant portion of the property can be accessed from an internal part of the building. Utilization of the existing front entrance and offering goods and services during all hours of Starport Arcade and Pub operation should serve to enliven economic activity within the immediate area beyond nighttime operations. Morgantown Board of Zoning Appeals Page 5 of 9 December 18, 2019 Minutes  Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: Having an occupant serving food and alcohol in the space at 341 Chestnut Street will allow the Scholar Hotel to meet the requirements of a full-service hotel. Furthermore, removing the pre 9 p.m. public access limitation would permit the Scholar Hotel to offer lunch and dinner, including alcohol throughout the day. Permitting the public to enter the ground floor tenant space through the existing storefront door will assist with wayfinding and ease of access for patrons not staying at the hotel. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: It recognizes the physical design and practical use of the existing storefront entrance for the subject ground floor tenant space. It also expands hours of operation to allow for patron diversification by permitting the public to access a unique dining and entertainment experience throughout the day rather than just late evening hours. Meehan motioned in favor of the four findings and facts as revised under Addendum B in the Staff Report. Seconded by Case to approve the four findings of fact. Motion passes with 3-1, with Cook voting in the negative. Case asked if there is a motion to approve the variance in V19-41 Scholar Hotel for use relief concerning the full-service hotel use? Meehan motioned in favor of granting the variance without conditions, seconded by Case. Motion passes with 3-1, with Cook voting in the negative. Case advised Biser that the Board’s decisions 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: V19-42 / Papyrus Remodeling / 712 Madison Avenue: Request by William Neat of Papyrus Remodeling for variance relief from Article 1335.04 concerning a setback encroachment at 712 Madison Avenue. First Ward Tax District, Tax Map 40, Parcel 282; R-1A, Single-Family Residential District. Whitmore presented the Staff Report for V19-42 and noted the petitioner is present. William Neat, 829 Augusta Avenue explained that he was contacted to try to figure out how to get an attached garage onto this home. Through many designs, this is the one that seemed to be able to fit in the space without any encroachments, apart from the one I am seeking a variance for. Neat explained that from the setback that the developer is seeking 8 extra feet. Whitmore stated that this would require a building permit and that would be reviewed by Engineering. Additionally, there would be no ability to park on the driveway as it is 12-feet in length so it is to short to actually park a vehicle completely on the property.. There being no further questions or comments by the Board, Case opened the public hearing and asked if anyone was present to speak in favor of or in opposition to the petition . Morgantown Board of Zoning Appeals Page 6 of 9 December 18, 2019 Minutes Todd Queen, 711 West Virginia Avenue, explained that he owns the property directly behind the lot in question and that there is a 9.5 foot wide alley between the parcels. Todd Queen questioned the ability to safely pull in and back out of said driveway and that recently MUB went through and cleaned the ditches on my side of the property. MUB installed two culverts in the adjacent lots to 711 West Virginia Avenue and that run off is a big problem. If a vehicle is unable to back out completely into the alley way and end up going into the ditch, the drainage is going to be an issue. There is also the issue a very large mature pine tree that is growing in the ditch. It is further down from the proposed driveway, however, mature pine trees have root systems of 35-75 feet. Construction could potentially cause damage to the root system and cause the tree to die and fall. Todd Queen also expressed concern with Article 1335.03 Section C. The dimensions of the existing house were not referenced and that Article states that maximum lot coverage can not exceed 50%, which looking at the house itself and picturing a garage added to that would be in excess of the maximum lot coverage standard. Susan Queen, 711 West Virginia Avenue. reiterated that the Queens are not opposed to the neighbor building an addition and having a garage, but that there was concern for the issues identified by Todd. No further public comment was received. The petitioner was provided 5 minutes of rebuttal time. Neat explained that the location of the tree did not appear to be on the property or affected by development and that the house would be below the maximum lot coverage standard. Harrison asked. Neat to speak regarding the ditches and drainage in the alley. Neat stated there would a cement driveway going from the opening of the garage to the alley way. There really is no culvert on the client’s side, it is just a slope going down to the back of the house. Harrison asked if the cement was sloping toward the garage causing additional run off. Neat stated it would be crowned so that the water would not run across the alley way. Talking with subcontractors in terms of doing something that will address this issue. Whitmore stated this would be handled in the permit process. Whitmore also stated that regarding the public hearing, all of these questions need to be presented in the permit process. Cook brought up the length of the structure, as it looks to like there is just enough room for a car and a stairwell to fit in and that it didn’t seem from the drawing to be any area to reduce the length of it. Neat confirmed that there is not really any way to shorten the addition. There being no further rebuttal, the Public Hearing was closed. Whitmore provided the Staff Recommendation and stated he is available to discuss the building permit approval process if desired. Case asked about the process, if this variance were approved, that the applicant would have to go through to build this garage. Whitmore stated the applicant would be filing a building permit application. The application would include a narrative description of the work to be completed. Including construction schematics and materials to be used. That information is used to actually assess the value of permit. In addition, a review would be conducted by Code Enforcement for physical building construction and the City Engineers office would review the design. The City Engineers office then forwards that information to the Morgantown Utility Board (MUB) for determinations on storm water management. The Planning Division will do a review based on the compliance with zoning code, which this would be that final check. Whitmore explained that Morgantown Board of Zoning Appeals Page 7 of 9 December 18, 2019 Minutes regarding the MUB review, they will be looking at Federal provisions for MS4 communities. MUB is charged with ensuring that the first inch of rain water is accounted for, on-site. Case asked if there was a specific permit to tie into the alleyway or is that part of the building permit. Whitmore states that Engineering would require a right of way access agreement. The public right of way also gets reviewed. Case reviewed setbacks. Front is 8 feet minimum, maximum 20 feet. Side 5 feet. Minimum rear setback that we are dealing with today is 20 feet. Case questioned why the minimum rear setback is 20 feet. Mr. Whitmore states that it is 20 feet because the Planning Commission has established that is the standard for R-1A, Single Family Residential Zoning District; 20 feet is for R-1A and R-1 is 25 feet. The setback provides a rear yard that is usable. It was mentioned that other properties on this street have not followed this ruling in the past. Case stated that the only thing that was brought up during the hearing was an item the Board of Zoning Appeals don’t really know anything about, the tree that is not on the site. Case mentioned that with a building permit application the city should evaluate this. The concern of the root system is in question. Whitmore states that Engineering has raised concerns regarding on-site trees for different reasons. Regarding construction, Whitmore noted that off-site damage done to a tree is not something that the city would necessarily be involved in unless, during construction something happened to the tree directly. Case noted that he does not feel there is enough evidence concerning the tree to deny the request. Case requested a motion to the findings of fact. Meehan moved to accept the findings of fact for Case Number V19-42 case as amended. Cook seconded. Motion to approve is unanimous. 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 structure falls well within the property lines and does not inhibit the coming and going of vehicle or foot-traffic to any of the adjacent properties. The rear setback appears sufficient to ensure safe and functional ingress and egress from the alley to the garage addition. The proposed garage addition addresses the lack of onsite parking within an area experiencing on-street parking congestion. 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: There is a grade transition from the alley down to the house that requires an interior stairwell to access the finished grade at the rear of the house. Finding of Fact No. 3 – The variance will eliminate an unnecessary hardship and permit a reasonable use of the land, because: This single-car-garage will provide off-street parking. It will also allow easier access to and from the home having neither to traverse the slope from the alley to the back door, nor having to at times, walk down the block when parking on the street. The proposed design addresses the change in site slope between the finished floors of the house and the garage addition. Finding of Fact No. 4 – The variance will allow the intent of the zoning ordinance to be observed and substantial justice done, because: Morgantown Board of Zoning Appeals Page 8 of 9 December 18, 2019 Minutes  The variance would provide a means of improving the homeowner’s property and quality of life. By helping to address the impact of traffic and parking, it improves the value and quality of the neighborhood it is a part of as well. This variance can achieve these things without impeding upon the rights or quality of life of this neighborhood’s inhabitants. Cook moved to grant the variance for Case number V19-42 without conditions. Meehan seconded the motion. Motion to approve is unanimous. Case advised Neat that the Board’s decisions 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. 3. ANNOUNCEMENTS: None ADJOURNMENT: 8:18 p.m. MINUTES APPROVED: January 19, 2020 BOARD SECRETARY: _____________________________ Christopher M. Fletcher, AICP Morgantown Board of Zoning Appeals Page 9 of 9 December 18, 2019 Minutes