Board of Zoning Appeals

BOARD OF ZONING APPEALS MEETING MINUTES 6:30 p.m. January 31, 2024 Mon County Commission Chambers MEMBERS PRESENT: Heidi Cook, Chris Benison, and William Plyler MEMBERS ABSENT: Gabe DeWitt, Logan Shamberger STAFF: Rickie Yeager, Director I. CALL TO ORDER AND ROLL CALL: Benison called the meeting to order and read the pre- meeting announcement. II. Election of Officers A. Chairman. Benison asked for nominations. Cook moved to appoint Benison to chair, Plyler seconded. Vote was unanimous. B. Vice-Chairman. Benison asked for nominations, and he nominated Cook, seconded by Plyler. Vote was unanimous. III. MATTERS OF BUSINESS: A. Meeting Minutes from December 20, 2023 Benison asked if there were any recommendations or changes to the minutes. Benison asked for a motion, Cook motioned to approve seconded by Benison. Vote was unanimous. IV. UNFINISHED BUSINESS: None. V. NEW BUSINESS: A. CU23-06 / Hokie Investments II, LLC / 112 Waverly Street Request by Mr. David Lorenze on behalf of Hokie Investments II, LLC for conditional use permit approval for a “Loding or Rooming House” as required in Article 1331 of the City’s Planning and Zoning Code; City Tax District 13, Tax Map 20, Parcel 593; R-2, Single- and Two-Family Residential District. Yeager read the staff report and noted the petitioner representative, Seth Wilson, was present. Yeager noted that there was an email received from WVU, which was included in the packet, and will be added to the official documentation. Seth Wilson, Bowles Rice on behalf of Hokie Investments. Mr. Wilson added that they have presented Conditional Use permit due to the revocation of the fraternity charter, and now is a Morgantown Board of Zoning Appeals Page 1 of 8 January 31, 2024 Minutes  non conforming use. He stated they would like to continue as the original use of the property which is boarding and lodging. Benison noted the revocation was dated August of 2023. He asked Yeager if the City was notified of this, and Yeager noted that he was notified and has been working with the property owner. Wilson noted the property is for sale and asked for a zoning verification. During this process, the revocation was documented. Plyler questioned the wording of 11 2-bedroom units, or 11 actual beds. Wilson confirmed 22, but the occupancy use limits it to 16. Plyler noted that based on the application it exceeds what is permitted. Wilson noted that the proposed use of the application states that they are requesting sleeping accommodations for no more than 16 people. Wilson, confirmed by Yeager, notes that this would not be approved for more than 16 per the code. Parking was addressed, and Wilson noted a site plan will be provided with all parking spaces laid out in detail. Benison opened the public hearing. Being none, 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 conditional use permit 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, 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 approval of the “Lodging and Rooming House” use petition CU 23-06 with following conditions: 1. That the petitioner and/or owner(s) maintain compliance with all applicable zoning regulations pertaining to the use, including those referenced above. 2. That any regulated signage shall be reviewed and approved prior to building permit issuance for same. 3. That the petitioner provide staff with an updated site plan that shows compliance with the minimum off-street parking requirement per Table 1365.04.01 of the City’s Planning and Zoning Code. Benison asked for discussion. Cook moved to accept the findings of fact as presented in the packet, seconded by Plyler. Vote was unanimous. Cook moved to grant the Conditional Use with the staff recommendations as presented in the packet, seconded by Benison. Vote was unanimous. Morgantown Board of Zoning Appeals Page 2 of 8 January 31, 2024 Minutes  The Conditional Use has been granted and will receive written permission within 7 days of this hearing. B. CU23-07 / El Pollon, LLC / 250 High Street Request by Luis Neira on behalf of El Pollon for conditional use permit approval for a “Restaurant, Private Club” as required in Article 1331 of the City’s Planning and Zoning Code; City Tax District 11, City Tax Map 26A, Parcel 133; B-4, General Business District. Yeager read the staff report and noted the petitioner was present. Yeager further noted the applicant provided a floor plan which does meet the seating requirements. Benison asked about the 60/40 Ordinance and Yeager confirmed that it did pass and is in effect at this time. Luis Neira, El Pollon. Mr. Neira noted he has currently been in business in Morgantown for the last several years and stated he wishes to add an additional space on High Street. Mr. Neira noted he would like to pursue the ABCA license including liquor. He noted that customers have requested this at other locations, which is why they would like to start this new location including the alcohol. Benison opened the public hearing. Nick Marie, owner of 250 High Street and landlord to Neira. Marie feels this will be a great addition to High Street to be able to have a dinner along with a drink and is hoping this Conditional Use is approved. Marie further noted that Morgans Diner did offer beer and liquor when they were in business. Benison asked about the plan for managing the alcohol consumption. Neira noted there would be security put in place as well as training of staff. Benison asked if the alcohol would be served only at the bar at the tables also. Neira noted there would be waiters to take care of the customers. Benison asked about the hours of operation. Plyler noted this is in line with other establishments. Yeager noted that 1:00 a.m. is the cut off time for serving liquor as per the code. Benison asked how this is monitored, Yeager noted that is the ABCA and that there are policies in place with the city but that this is not in the BZA purview. Plyler noted that this is a Peruvian restaurant and not a Peruvian bar. The petitioner confirmed and noted the patrons have requested this, which is why he is attempting to offer. Benison closed the public hearing. STAFF RECOMMENDATION: Since the owner currently operates a similar establishment in the City of Morgantown, a waiver from the one-year “bona fide restaurant” requirement [Article 1331.06(27)(c)] by the Board is not required. It is the duty of the Board of Zoning Appeals to determine whether the proposed request meets the standard criteria for a conditional use permit 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, 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)]. Morgantown Board of Zoning Appeals Page 3 of 8 January 31, 2024 Minutes  After review, staff had no additions, corrections or modifications to the Findings of Fact presented in the application (attached hereto). Staff recommends approval of the “Restaurant, Private Club” use petition CU 23-05 with following conditions: 1. That the petitioner provide staff with a floor plan for the restaurant, private club use that shows there is seating capacity for at least 50 people. 2. That the petitioner maintains compliance with all supplemental regulations set forth in Article 1331.06(27) of the Planning and Zoning Code. 3. That any regulated signage shall be reviewed and approved prior to building permit issuance for same. 4. That the “Restaurant, Private Club” use shall be limited to the proposed areas of operation. Any expansion of the conditional use or substantial deviation from existing facility layout design, operations, or present dining experience must first be approved by the Board of Zoning Appeals. Yeager noted that #1 has already been satisfied. Neira noted that City Neon will be doing the signage and that the permit has been submitted and waiting on approval. Benison moved to accept the Findings of Fact seconded by Plyler. Vote was unanimous. Cook moved to grant the Conditional Use with the conditions stated in the packet. Seconded by Plyler. Vote was unanimous. Benison noted this application as been granted and written notification from Planning will be sent within seven days. C. CU23-08 / JMR Canteen, LLC / 514 North High Street Request by Mr. Robert Rechter on behalf of JMR Canteen, LLC for conditional use permit approval for a “Restaurant, Private Club” as required in Article 1331 of the City’s Planning and Zoning Code; City Tax District 13, Tax Map 26, Parcel 124; B-1, Neighborhood Business District. Yeager read the staff report and noted the petitioner was present. Robert Rechter, 514 North High Street. Rechter noted he has owned the Canteen for approximately five years. He noted there is a full-service menu and has always served beer and wine. He is applying for the conditional use approval to serve liquor to stay competitive with the other bars/restaurants in the area. Rechter noted the hours of business will not be changing. Plyler asked about the seating for 38, Rechter noted the capacity is 48. Plyler noted the capacity is based on square footage. Rechter noted he spoke with the Fire Marshall and confirmed capacity. Plyler noted the capacity for this request needs to be 50. Rechter noted the sign in the bar states 49. Plyler continued to question the seating capacity but Rechter Morgantown Board of Zoning Appeals Page 4 of 8 January 31, 2024 Minutes  does not know how the number is derived by the Fire Marshall. Plyler stated that since the occupancy states “at least” instead of “approximately” he thinks the occupancy needs to be revisited. Benison noted that his concerns are wanting to maintain consistency among establishments. He further states that the occupancy is in question to maintain fire safety and public safety. Plyler noted that increasing the occupancy by one will have zero impact on egress. Benison noted that if he can increase by one there should be no problem. Cook stated that since this would be such a minimal change she would grant while adding that condition. Yeager noted that there are 38 seats available now and that the applicant could ask the City’s Fire Marshal Office to reevaluate and be heard at a future meeting pending these results. Plyler agreed with the recommendation that the applicant would be able to meet this requirement and noted it is an issue of setting precedence. Rechter asked if this was a two-fold condition with the Fire Marshall and showing the available seating. Plyler noted there should be a conversation with the Fire Marshall and ask how to reach the fifty-seat requirement with the occupancy requirements. Benison opened the public hearing. Dan Headley, Wesley United Methodist Church. Headley states he is the custodian at the church. He states the students cause a lot of trash and feels this would add to the problem. Plyler wanted to confirm that Headley’s concern is that the presence of liquor would exacerbate this problem, Headley said that this is his fear. Seeing no one else, Benison closed the public hearing. STAFF RECOMMENDATION: Since the owner currently operates a similar establishment in the City of Morgantown, a waiver from the one-year “bona fide restaurant” requirement [Article 1331.06(27)(c)] by the Board is not required. It is the duty of the Board of Zoning Appeals to determine whether the proposed request meets the standard criteria for a conditional use permit 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, 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 did not provide a recommendation at the time of this report. If the BZA were to approve the applicant’s request for a conditional use permit for a ‘Restaurant, Private Club’ use, staff would suggest it be contingent on the following conditions:: Morgantown Board of Zoning Appeals Page 5 of 8 January 31, 2024 Minutes  1. That the petitioner maintains compliance with all supplemental regulations set forth in Article 1331.06(27) of the Planning and Zoning Code. 2. That any regulated signage shall be reviewed and approved prior to building permit issuance for same. 3. That the “Restaurant, Private Club” use shall be limited to the proposed areas of operation. Any expansion of the conditional use or substantial deviation from existing facility layout design, operations, or present dining experience must first be approved by the Board of Zoning Appeals. Yeager noted that based on the comments heard from the Board tonight, he would recommend tabling until the applicant has a chance to address the concerns regarding seating. Benison asked for a motion to table pending the applicant’s ability to work out the 50 seat requirement with the Fire Marshal. Benison further stated that the case could be heard at the second meeting. Plyler added that Finding of Fact #2 should be amended because of the occupancy change. Benison moved to table pending the above changes, seconded by Plyler. Vote was unanimous. D. Request to transfer a Conditional Use Permit for Mountain Mama’s Tavern, LLC to Johnny Dollar, LLC for the purpose of operating a restaurant, private club use at 1137 Van Voorhis Road #20; City Tax District 15, Tax Map 6, Parcel 27; B-1, Neighborhood Business District. Yeager made a report that the petitioner has taken over Mountain Mama’s Tavern which had received a previous Conditional Use approval which states if the business changes hands the Board of Zoning Appeals would need to approve transfer. Yeager noted that after consulting with legal counsel, a new Conditional Use is not required. Benison thanked Yeager for clarifying that a new Conditional Use is not required. John Gentile, 1137 Van Voorhis Road. Gentile stated that he is taking over the business, leaving everything the same. One of the current owners is staying on during the transitional period since he is not used to running a restaurant. Gentile stated he has been a bar owner on High Street for thirty years. Benison opened the public hearing. Seeing no one, the hearing was closed. Yeager noted that Staff recommends approval from the 2017 Conditional Use approval. Staff Recommendation from 2017 is below. STAFF RECOMMENDATION: The Board of Zoning Appeals must first determine whether or not it will waive the one-year “bona fide restaurant” requirement [Section 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 6 of 8 January 31, 2024 Minutes  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(s) to deny the subject variance petitions. [See WV State Code 8A-8-11(e) and 8A-7-11(b)]. Addendum C of this report restates the petitioner’s findings of fact responses. Staff makes no recommendation concerning whether the petitioner’s findings should be modified. Should the Board waive the one-year “bona fide restaurant” requirement and grant approval of the subject conditional use petition to Mountain Mama Tavern, Staff recommends the following conditions be included: 1. That the petitioner must maintain compliance with all supplemental regulations set forth in Section 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. That the “Restaurant, Private Club” use shall be limited to the interior design and identified areas of the subject building 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 facility layout design, operations, or proposed dining experience must first be approved by the Board of Zoning Appeals. 4. That, 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 to the general public a minimum of 11:00 a.m. to 1:00 p.m. Monday through Friday for the purpose of serving lunch as generally described in the menu submitted with the petitioner’s conditional use application. b. 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 Section 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. 5. That any regulated signage shall be reviewed and approved by the Planning Division prior to sign permit issuance for same. 6. That the beneficiary of this conditional use approval is Mountain Mama’s Tavern LLC, which may not be transferred without prior approval of the Board of Zoning Appeals. report. Plyler noted that the 60/40 rule is mentioned in the above Findings of Fact but is no longer applicable due to the new Ordinance and asked if this needed to be addressed. Yeager noted that the Ordinance that was passed was regarding the enforcement of the 60/40 rule. Benison confirmed with Yeager that the 60/40 requirement did not need a motion. Benison moved to approve the transfer of the 2017 Conditional Use to Johnny Dollar, LLC. subject to the conditions noted in the packet. Seconded by Benison. Vote was unanimous. Morgantown Board of Zoning Appeals Page 7 of 8 January 31, 2024 Minutes  Benison explained to the petitioner that the transfer of Conditional Use has been approved and he will receive written notification from the Planning office within seven days. The applicants asked who would appeal this decision? The Board stated that was a good question. Yeager noted that this is standard language the Board of Zoning Appeals uses for every case because there is a chance someone could appeal. The applicants stated they thought this language was just in case they wanted to appeal and not the public. Yeager noted that it could go either way, but since this has previously been approved does not see an issue. The ABCA zoning application that had been submitted previously was also addressed. Yeager noted that since this approval has occurred, the application will be signed off and submitted to the City Clerk. The City Clerk will then forward to the State ABCA. VI. ANNOUNCEMENTS: Yeager stated the City is working to bring on more staff. He noted that there was originally not going to be a February meeting, but now there will be at least two cases for February. The Board noted this was fine with them. VII. ADJOURNMENT: Cook moved to adjourn. The meeting adjourned at 7:50 p.m. MINUTES APPROVED: February 21, 2024 BOARD SECRETARY: _____________________________ Rickie Yeager, Director Morgantown Board of Zoning Appeals Page 8 of 8 January 31, 2024 Minutes