Board of Zoning Appeals

BOARD OF ZONING APPEALS MEETING MINUTES 6:30 p.m. April 20, 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: Approval of minutes from February and March 2022. These were not included in the packet, so these will be postponed to the next meeting and approve February, March and April minutes. III. UNFINISHED BUSINESS: None. IV. NEW BUSINESS: A. CU 19-02/ Mundy’s Place / 669 Madigan Avenue: Request by Keith Summers on behalf of “Mundy’s Place” for an amendment to a previously approved conditional use permit for a “Restaurant, Private Club”; City Tax District 9, Tax Map 40, Parcel 88; B-1 Neighborhood Business District. Bahner read the Staff Report and noted the petitioner was absent and staff will represent. Shamberger questioned if the first twelve months of the conditional use has been satisfied and would this kick back in after the transfer to the new owner. Bahner stated that we are not creating a new conditional use permit so since this has been continuous this would carry over to the new owner. Cook questioned all other conditions, Bahner noted that all conditions would still apply, just with a new owner. Public hearing was opened. Being no one, public hearing was closed. STAFF RECOMMENDATION: It is the duty of the Board of Zoning Appeals to determine whether the petitioner’s request to modify the Board’s condition related to beneficiary included in its April 17, 2019 conditional use approval advances the Planning and Zoning Code’s intent to ensure establishments within the B-1 District selling liquor are “bona fide restaurant” establishments. Because the Board has already granted conditional approval for a “Restaurant, Private Club,” no further consideration of new or revised Findings of Fact appears necessary. Specifically, the matter before the Board is to determine which of the following options preserves and Morgantown Board of Zoning Appeals Page 1 of 4 April 20, 2022 Minutes DRAFT  advances the intent of related Planning and Zoning Code provisions for the Mundy’s Place conditional “Restaurant, Private Club” use: 1. Deny the petitioner’s request to transfer the beneficiary assignment. 2. Approve the petitioner’s request to transfer the beneficiary assignment. The basis of this decision would be that under new ownership Mundy’s Place will continue to operate as “bona fide restaurant” as previously approved. 3. Eliminate the assigned beneficiary condition. The conditional use permit approval standards at Sec. 1379.03 do not limit transferring assigned beneficiaries of conditional use approvals nor do the standards consider qualities or characteristics of potential owners or applicants as part of the permit approval criteria. Further, the supplemental regulations for “Restaurant, Private Club” use do not limit ownership transfers nor do the regulations contemplate specific attributes or qualities of potential restaurant owners or operators. Lastly, per Article 1379, an approved conditional use permit is deemed to authorize the particular use, location, operations, and construction specified in the permit. Failure of the applicant or any subsequent beneficiaries to comply with approved plans, permitted operations, or any conditions of approval would constitute a violation of the Zoning Ordinance. The Planning Director, or his/her designee, are authorized to order the correction noncompliant conditions or prevent operations from being carried on thereunder when in violation of the Zoning Ordinance. Staff recommends the Board consider Options 2 or 3 above. Bahner mentioned another option to approve would be to make this a permanent condition for all future owners of the business. Benison asked if everyone would be agreeable to approving with the previous conditions. Shamberger asked if we are approving the previous conditions, but not in perpetuity. Benison confirmed. Shamberger moved to approve the findings of fact as presented, seconded by Cook. Vote was unanimous. Shamberger moved to transfer the beneficiary assignment and grant the conditional use, seconded by Cook. Vote was unanimous. Conditional use has been approved. If there is a change in the LLC makeup, the applicant will need to come before the board for an additional conditional use. B. V 22-08 / City Neon / 1050 University Avenue: Request by Crystal Miller for variance relief from Article 1369 of the City’s Planning and Zoning Code regarding signage; City Tax District 11, Tax Map 28A, Parcel 27; B-4, General Business District. Bahner presented the staff report and noted the petitioner was present. Crystal Miller detailed her request for signage. She explained that the business is Starbucks which will have a drive through with a lot of traffic. She is requesting illumination of the Morgantown Board of Zoning Appeals Page 2 of 4 April 20, 2022 Minutes DRAFT  signage on behalf of the tenant. She included samples of illuminated signage in the downtown area. There was discussion regarding the drive through and access to University Avenue. Leaving the parking lot there would be a right turn only permitted. Bahner added that the monument is permitted as presented. Bahner stated that according to code the materials the sign is made of are permitted, but mostly the illumination is the main issue. Benison noted that there may be change of tenants over time, so the use of vinyl is not exclusive to Starbucks. He also noted that due to the property location we need to optimize the wayfinding especially during nighttime hours. Bahner noted that this is a state route. Bahner stated that he understands the concerns of the illumination. Based on the other highway and other illuminated signs in the area he feels this is not a problem. Shamberger noted that he thinks the sign is in excess, he stated it was obvious where people would be going. Ms. Miller noted that the Sheetz sign is not illuminated, and it is hard to read at night, even with the lights. Benison stated that he thinks it is best to have a monument sign in terms of wayfinding. Bahner noted that there is a lot of competition with the large road/traffic signs nearby. He feels that this building takes up a whole block and that the size and illumination of the sign are fitting. Shamberger asked if this monument will be the only sign or if there will be others. Miller stated that there may be several businesses in the building and would have their own signs. Bahner noted that there would be one monument or post and panel sign allowed. Benison asked Ms. Miller if she knew the number of tenants. She said on the monument sign, there are eight panels for additional tenants, but she does not have several rented spaces. Public hearing was opened, seeing no one, it 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. Morgantown Board of Zoning Appeals Page 3 of 4 April 20, 2022 Minutes DRAFT  Shamberger questioned the difference between an illuminated sign or one with lights shining on it. Bahner explained that the code is based more on aesthetics than effectiveness. Cook noted she has no issues with the illumination and size is within code. Shamberger discussed lighting and headlights from cars. Benison thinks that the car headlights would wash out the sign if there was external lighting. Shamberger thinks that allowing signage like this it changes the character of the downtown area. Cook agreed with that point but feels like as a board that everyone tries to stay in line with this way of thinking but feels this sign is not going to be a problem with the ambience of the downtown area. Benison mentioned Hotel Morgan and Sheetz as comparisons. Benison feels this sign is modest and doesn’t feel it is an unreasonable request. Cook moved to accept the findings of fact as stated in the packet. Seconded by Shamberger. The vote was unanimous. Cook moved to grant the variance as stated in the packet, seconded by Benison. Vote was unanimous. Variance request has been granted. The decision rendered can be appealed to the Circuit Court of Monongalia County within 30 days. A letter stating this will be sent within seven days. V. ANNOUNCEMENTS: Bahner noted there is a conflict with the next meeting. He asked if the board would be available to change to the following week on May 26. Bahner will send an email to the board to confirm tomorrow. Bahner further noted that after July meetings will be moved to a new location due to remodeling of City Hall, all employees will be moved out to a new location during this phase. VI. ADJOURNMENT: Cook moved to adjourn. Meeting was adjourned at 7:30. BOARD SECRETARY: _____________________________ Rodney Bahner, AICP Morgantown Board of Zoning Appeals Page 4 of 4 April 20, 2022 Minutes DRAFT