Board of Zoning Appeals

BOARD OF ZONING APPEALS MEETING MINUTES 6:30 p.m. March 16, 2022 Council Chambers MEMBERS PRESENT: Chris Benison, Logan Shamberger, Heidi Cook MEMBERS ABSENT: STAFF: Rodney Bahner I. CALL TO ORDER AND ROLL CALL II. MATTERS OF BUSINESS: None III. UNFINISHED BUSINESS: None. IV. NEW BUSINESS: A. CU 22-01 / Apothecary Ale House / 227-229 Spruce Street: Request by Grace Hutchens on behalf of Apothecary Ale House & Café, LLC for Conditional Use Approval for a “Restaurant, Private Club” required by Article 1331 of the City’s Planning and Zoning Code; City Tax District 11, Tax Map 26A, Parcels 140, 144, and 145; B-4, General Business District. NO AUDIO RECORDING--------------------------------------------- Bahner presented the staff report and noted the petitioner was present. Benison opened the public hearing. Seeing no one, the public hearing was closed. STAFF RECOMMENDATION: After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). The Board of Zoning Appeals must first determine whether it will waive the one-year “bona fide restaurant” requirement as provided in Article 1331.06(27)(c) prior to the petitioner obtaining a liquor license from the West Virginia Alcohol Beverage Control Administration. Should the Board decide to waive said one-year “bona fide restaurant” requirement, it must determine whether the proposed request meets the standard criteria for a conditional use by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. Morgantown Board of Zoning Appeals Page 1 of 9 March 16, 2022 Minutes DRAFT  Should the Board waive the one-year “bona fide restaurant” requirement and grant approval of the subject conditional use petition to Apothecary, Staff recommends the following conditions: 1. That the petitioner must maintain compliance with all supplemental regulations set forth in Article 1331.06(27) of the Planning and Zoning Code. 2. That the petitioner must obtain permitting as a “restaurant” from the Monongalia County Health Department under the Monongalia County Clean Indoor Air Regulations. 3. To ensure that the petitioner’s business description and plans are executed as described and considered in granting the one-year “bona fide restaurant” waiver, the subject “Restaurant, Private Club” use must: a. Be open no later than 11:00 a.m. Monday through Friday for the purpose of serving lunch as described in the petitioner’s conditional use application. b. That the petitioner shall voluntarily submit all necessary financial information to the City for the subject establishment following its first twelve (12) months of operation as a “Restaurant, Private Club” use to ensure compliance with Article 1331.06(27)(e) provisions, which requires the sale of food and non-alcoholic beverages to comprise a minimum of 60 percent of total gross sales of all food and drink items in each calendar month. 4. That the “Restaurant, Private Club” use granted herein shall be limited to the identified areas of the subject development site as illustrated on the drawings submitted with the application and reviewed and approved by the Board of Zoning Appeals. Any expansion of the conditional use or significant deviation from said layout design must first be approved by the Board of Zoning Appeals. Benison moved to accept the findings of fact as presented in the packet, seconded by Shamberger. Vote was unanimous. Benison moved to grant the Conditional Use Permit, seconded by Shamberger. Vote was unanimous. Benison noted the Conditional Use Permit has been granted. The applicant will be notified in writing by the Planning Department withing seven business days. B. CU 22-02 / The Cupcakerie / 194 Willey Street: Request by Anna Carrier on behalf of The Cupcakerie for Conditional Use Approval for a “Restaurant, Private Club” required by Article 1331 of the City’s Planning and Zoning Code; City Tax District 11, Tax Map 26, Parcel 69; B- 4, General Business District. NO AUDIO RECORDING------------------------------------------------------------------- Bahner presented the staff reported and noted the petitioner was not present. Benison opened the public hearing. Seeing no one, the public hearing was closed. STAFF RECOMMENDATION: Staff recommends the Board of Zoning Appeals table CU 22-02 in order to consider take action on the request at their next regularly scheduled meeting (April 20, 2022). Staff are obtaining additional information including, but not limited to, the feasibility of the petitioner to Morgantown Board of Zoning Appeals Page 2 of 9 March 16, 2022 Minutes DRAFT  obtain a West Virginia Alcohol Beverage Control Administration license to operate a Private Club Restaurant. If the Board of Zoning Appeals decides to consider the request before them, the Board of Zoning Appeals must first determine whether it will waive the one-year “bona fide restaurant” requirement as provided in Article 1331.06(27)(c) prior to the petitioner obtaining a liquor license from the West Virginia Alcohol Beverage Control Administration. Should the Board decide to waive said one-year “bona fide restaurant” requirement, it must determine whether the proposed request meets the standard criteria for a conditional use by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. Should the Board waive the one-year “bona fide restaurant” requirement and grant approval of the subject conditional use petition to The Cupcakerie, Staff recommends the following conditions: 1. That the petitioner must maintain compliance with all supplemental regulations set forth in Article 1331.06 (27) of the Planning and Zoning Code. Alternatively, the petition must seek and be granted variance approval to applicable supplement regulations set forth in Article 1331.06 (27). 2. To ensure that the petitioner’s business description and plans are executed as described and considered in granting the one-year “bona fide restaurant” waiver, the subject “Restaurant, Private Club” use must: a. Be open no later than 11:00 a.m. Monday through Friday for the purpose of serving lunch as described in the petitioner’s conditional use application. b. That the petitioner shall voluntarily submit all necessary financial information to the City for the subject establishment following its first twelve (12) months of operation as a “Restaurant, Private Club” use to ensure compliance with Article 1331.06 (27) (e) provisions, which requires the sale of food and non-alcoholic beverages to comprise a minimum of 60 percent of total gross sales of all food and drink items in each calendar month. 3. That the “Restaurant, Private Club” use granted herein shall be limited to subject development site. Any expansion of the conditional use or significant deviation from said sale of beverages consisting of alcoholic liquors for off-site consumption must first be approved by the Board of Zoning Appeals. Cook moved to table, seconded by Shamberger. Benison noted that the Board relies on planning for information, so he agreeed. Vote was unanimous. C. V 22-01 / J.D. Signs / 3051 University Avenue: Request by Robert DeRiggi on behalf of First Exchange Bank for variance relief from Article 1369 of the City’s Planning and Zoning Code regarding signage; City Tax District 15, Tax Map 6, Parcel 14; B-2, Service Business District. Bahner presented the staff report and noted the petitioner was present. Robert DeRiggi, JD Signs on behalf of First Exchange Bank. Mr. DeRiggi noted that he had provided comparisons from the area for signage with his application. He noted that the sign is centrally located on the building. He noted if they comply with the six-foot monument sign, it would be blocked considering the location. Morgantown Board of Zoning Appeals Page 3 of 9 March 16, 2022 Minutes DRAFT  Benison noted that the request was made due to line-of-sight restrictions. Benison opened the public hearing. Seeing no one, the public hearing was closed. STAFF RECOMMENDATION: It is the duty of the Board of Zoning Appeals to determine whether the proposed request meets the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). As is customary with sign variance petitions, no recommendation is submitted by Staff concerning whether variance relief should be granted as requested. Benison asked for discussion. Shamberger discussed precedent for Conditional Use, and asked if they also carry with Variances as well. Bahner said each is unique. He further stated that the cases are similar, and the variance is relatively minor compared to some previous variances that have been granted considering all the conditions that are similar. Benison further noted that the variance is not out of proportion with comparable signs in the immediate vicinity. Cook moved to accept the findings of fact as presented in the packet, seconded by Shamberger. Vote was unanimous. Cook moved to grant the variance, seconded by Shamberger. Vote was unanimous. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. D. V 22-02 / First Presbyterian Church / 456 Spruce Street: Request by Mavis Grant on behalf of First Presbyterian Church for variance relief from Article 1349 of the City’s Planning and Zoning Code regarding setback requirements in the B-4 District; City Tax District 11, Tax Map 26, Parcel 249; B-4, General Business District. Bahner presented the staff report and noted the petitioner was present. Mavis Grant, First Presbyterian Church, 173 Poplar Drive and 456 Spruce Street. Ms. Grant stated she is a member of the church and chairs the committee that is designing the columbarium. Shamberger asked what this is, and Ms. Grant stated it is a structure to store ashes of cremated remains. Benison asked if there were questions. Benison asked if the current shrubbery would be replaced and Grant stated it would stay. Sara Serino, landscape architect for this project, further discussed the shrubbery. She stated that the existing shrubbery is about where the columbarium would end. Benison asked about Morgantown Board of Zoning Appeals Page 4 of 9 March 16, 2022 Minutes DRAFT  the materials that will be used. Serino stated there would be a poured base, with the panels, quartz and a brick veneer to match the church. Bahner asked if for this evening we focus on the approval, and in the future we could discuss expansion. All were in agreement. Public hearing was opened. Being no one present, the hearing was closed. STAFF RECOMMENDATION: The Board of Zoning Appeals must determine whether the proposed request meets the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). Staff recommends variance relief from Section 1349.04(b) be granted as requested without conditions as the columbarium is primarily a landscape treatment which should not degrade the pedestrian environment in addition to the fact that the primary entrance and, therefore, the building front, could be construed to be the Forest Avenue frontage. Cook moved to accept the findings of fact as presented. Shamberger seconded. Vote was unanimous. Cook moved to approve the variance, seconded by Shamberger. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. E. V 22-03 / City Neon / 1137 Van Voorhis Road: Request by Crystal Miller for variance relief from Article 1369 of the City’s Planning and Zoning Code regarding signage; City Tax District 15, Tax Map 6, Parcel 43, B-1; Neighborhood Business District / PRO, Professional, Residential, and Office District. Bahner presented the staff report and noted the petitioner was present. Crystal Miller, City Neon. Miller noted the plaza is L shaped and the building is in the back corner. She noted the location is a long way from the road, and she is requesting a 16 foot sign. The reason for this being the owner of the property has installed a sign board, and for the racetrack bracing, the sign needs to be mounted from post to post. The variance is for material and internal illumination. Benison asked about the nature of the internal illumination. Miller stated the other businesses in the plaza have requested variances for this type of signage and been approved. She notes that the illumination is a halo effect lighting. She further noted that the location is in the B1 and either side of the parcel is B2 zoning. Bahner noted that he would note this approval area for clarity. Public hearing was opened, being no one, it was closed. STAFF RECOMMENDATION: Morgantown Board of Zoning Appeals Page 5 of 9 March 16, 2022 Minutes DRAFT  It is the duty of the Board of Zoning Appeals to determine whether the proposed request meets the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). As is customary with sign variance petitions, no recommendation is submitted by Staff concerning whether variance relief should be granted. Cook moved to accept the findings of fact as presented, seconded by Shamberger. Vote was unanimous. Shamberger moved to grant the variance, seconded by Cook. Vote was unanimous. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. F. V 22-04 / Mountain Heights Church / 245 University Avenue: Request by Richard Shultz on behalf of Mountain Heights Church and Glenmark Holding LLC for variance relief from Article 1365 regarding minimum required number of off-street parking spaces at 245 University Avenue, City Tax District 9, Tax Map 49, Parcel 1; B-2, Service Business District. Bahner presented the staff report and noted the petitioner was present. Benison asked if the lot lines are adjusted, it will still meet minimum requirements for parking. Bahner stated it will decided after this meeting, but currently they would only need 12 spaces. A representative for Richard Shultz spoke stating they are asking for a variance for the required number of parking spaces. Benison noted that it is just one day a week that they would need variance from the code. Mike Saab, on behalf of Glenmark, spoke about the dispensary next door and noted they are closed on Sundays. He does not see any issues whatsoever. Because there are three different parcels, the parking has currently been separated due to dispensary parking requirements. Shamberger asked about the one day a week operation and if they plan to expand services in the future. It was noted by the representative that there are small group meetings through the week in the evenings, but the max parking would not be exceeded because they are small groups. For larger events, there are parking attendants to direct to parking spaces and avoid congestion or potential parking issues. Bahner noted that the assembly hall in the building is more than half less than the inside of the old Aldi. They have added classrooms, bathrooms etc. to the inside of the building have significantly cut the size of the assembly area. Benison opened the public hearing. Being none, the public hearing was closed. Morgantown Board of Zoning Appeals Page 6 of 9 March 16, 2022 Minutes DRAFT  STAFF RECOMMENDATION: The Board of Zoning Appeals must determine whether the proposed requests meet the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). Given the existing size and configuration of the principal structure and parking lot, in addition to the operational flexibility afforded to the proposed use, staff recommends variance relief from Section 1365.04.01(d)(3) not to exceed a 15% of the minimum required parking. Cook moved to accept the findings of fact as presented, seconded by Benison. Vote was unanimous. Benison noted the variance has been granted. Cook moved, Benison seconded to grant the variance. The applicant will be notified in writing by the Planning Department withing 7 business days. G. V 22-05 / BFS Companies / 1931 Hunters Way: Request by Jonathan Feathers on behalf of BFS Companies (Little Caesar’s) for variance relief from Article 1369 of the City’s Planning and Zoning Code regarding signage; City Tax District 14, Tax Map 44A, Parcel 5; B-2, Service Business District. Bahner presented the staff report and noted the petitioner was present. Howard Goodstein, BFS, 116 Shannon Drive discussed the variance request. Burger King will be sharing a building with Little Caesar’s, and they had taken over the play area. The variance is for signs for both businesses. Benison asked for questions. Public hearing opened. Seeing no one the hearing was closed. STAFF RECOMMENDATION: It is the duty of the Board of Zoning Appeals to determine whether the proposed request meets the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). Morgantown Board of Zoning Appeals Page 7 of 9 March 16, 2022 Minutes DRAFT  As is customary with sign variance petitions, no recommendation is submitted by Staff concerning whether variance relief should be granted. Shamberger asked how this is not a self imposed hardship. Benison noted that if they want to operate a business they have to adhere to corporate requirements. Shamberger asked when corporate requirements supersede our laws. Mr. Goodstein noted that is the same argument that could have been made with First Exchange Bank. He states that theirs was a “self-imposed” variance request and that they had to request Corporate to change the guidelines to conform. Benison responded to Shamberger as saying to what extent does the board have the right to dictate to the applicant that we are not going to be sensitive to the request due to corporate requirements. Shamberger stated he understands this, but maybe in the comprehensive plans we could revisit these standards. Cook stated we also have to have comparisons to what is existing. Bahner noted that this is an existing building that is being retrofitted for new business. If this had been a new construction, allowances would have been made for a larger sign. Since it is a remodel/reuse of an existing building, they are trying to work with what is available. Cook moved to accept the findings of fact as presented for V22-05, seconded by Shamerger. Vote was unanimous. Cook moved to grant the variance for V22-05, seconded by Benison. Vote was unanimous. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. Shamberger moved to grant the Variance for V22-06, seconded by Cook. Vote was unanimous. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. H. V 22-06 / BFS Companies / 1931 Hunters Way: Request by Jonathan Feathers on behalf of BFS Companies (Burger King) for variance relief from Article 1369 of the City’s Planning and Zoning Code regarding signage; City Tax District 14, Tax Map 44A, Parcel 5; B-2, Service Business District. See above. I. V 22-07 / Terry L. Brooks Estate / 305 and 321 Dewey Street and 511 Elmina Street: Request by Scott Belck on behalf of Terry L. Brooks Estate for variance relief from Article 1335 of the City’s Planning and Zoning Code regarding R-1A setback requirements; City Tax District 10, Tax Map 29, Parcel 468; R-1A, Single-Family Residential District. Bahner presented the staff report and noted that the petitioner is not present. Bahner proceeded representing the client in their request. Bahner encouraged the board to consider the variance request with the support of staff in the petitioner’s absence. Shamberger stated that they are taking the lot with three structures and brining it into compliance. Bahner confirmed. Cook stated that if we grant the variance, she would like to make a stipulation that if the building is destroyed or removed that they would have to rebuild up to code. Bahner explained the code on non-conforming structures. If the building is destroyed by natural causes, it could be rebuilt. If demolished it would have to meet the code. Benison opened the public hearing. Being no one, the hearing was closed. Morgantown Board of Zoning Appeals Page 8 of 9 March 16, 2022 Minutes DRAFT  STAFF RECOMMENDATION: The Board of Zoning Appeals must determine whether the proposed requests meet the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the petitioner. If the Board disagrees with the petitioner’s “Findings of Fact” and determines the proposed request does not meet the standard criteria for a variance, then the Board must state findings of fact and conclusions of law on which it bases its decision to deny the subject variance petition. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). Staff recommends variance relief from Section 1335.04 be granted as the development site’s configuration does not permit an alternative which would otherwise meet the setback requirement. However, should the Board decide to grant variance relief, Staff recommends the following condition be included: • That prior to final plat approval, a 5-foot-wide maintenance access easement agreement be established and recorded with the deeds of Parcel “B” and Parcel “C” to allow access between Parcel “B” and Parcel “C” for the benefit of each respective parcel. Cook moved to accept the findings of fact, seconded by Shamberger. Vote was unanimous. Shamberger moved to grant the variance, Cook seconded. The vote was unanimous. Benison noted the variance has been granted. The applicant will be notified in writing by the Planning Department withing 7 business days. V. ANNOUNCEMENTS: Bahner discussed the comprehensive plan update. He noted there were over 50 participants in person at the Marriott, and an online event the weekend following. Feedback is being evaluated at this time and presented to the public late summer. There will also be more chances for public feedback in the future also. VI. ADJOURNMENT: Cook moved to adjourn at 8:40. MINUTES APPROVED: BOARD SECRETARY: _____________________________ Rodney Bahner, AICP Morgantown Board of Zoning Appeals Page 9 of 9 March 16, 2022 Minutes DRAFT