Board of Zoning Appeals

CITY OF MURFREESBORO BOARD OF ZONING APPEALS Regular Meeting, December 18, 2023, at 1:00 p.m. City Hall, 111 West Vine Street, Council Chambers, 1st Floor AGENDA 1. Call to order 2. Determination of a quorum 3. Public Comments 4. Consideration of minutes for the regular meeting on October 25, 2023 5. New Business Special Use Permit Request a. Application Z-23-035 by Mr. Joey Rouse, for TNT Fireworks, is requesting a special use permit in order to operate a temporary outdoor vending establishment (seasonal fireworks sales) in a Commercial Highway (CH) zone for property located at 2946 South Church Street. (Project Planner: Brad Barbee) 6. Staff Reports and Other Business 7. Adjourn 1  MINUTES OF THE CITY OF MURFREESBORO BOARD OF ZONING APPEALS City Hall, 111 W. Vine Street, Council Chambers October 25, 2023 1:00PM Members Present: Staff Present: Davis Young, Chair Matthew Blomeley, Assistant Planning Director Ken Halliburton, Vice-Chair Brad Barbee, Planner Julie King Roman Hankins, Assistant City Attorney Tim Tipps Ashley Fulghum, Recording Assistant Members Absent: Misty Foy 1. Call to Order: Chair Young called the meeting to order. 2. Determination of a quorum: Chair Young determined that a quorum was present. 3. Public Comments: None 4. Consideration of Minutes: Vice-Chair Ken Halliburton moved to approve the minutes of the June 28, 2023 BZA meeting; the motion was seconded by Mr. Tim Tipps and was carried by the following vote: Aye: Vice-Chair Ken Halliburton Julie King Tim Tipps Chair Davis Young Nay: None MURFREESBORO BOARD OF ZONING APPEALS MINUTES October 25, 2023 5. New Business: a. Application [Z-23-033] by Mr. Lyle Lynch on behalf of Murfreesboro City Schools, requesting a special use permit to install a new playground to an existing institutional group assembly use at Mitchell-Neilson School in a Single Family Residential (RS-10) zoning district, located at 711 West Clark Boulevard. Mr. Tipps stated for the record that he is married to a Murfreesboro City Schools employee but felt that he could be objective on this matter. Mr. Brad Barbee presented the Staff Comments regarding this item, a copy of which is maintained in the permanent files of the Planning Department and is incorporated into these minutes by reference. Chair Young inquired about the playground located at the corner of West Clark Boulevard and Jones Boulevard. Mr. Barbee stated that this application is to replace the existing playground at that intersection. Mr. Lyle Lynch spoke more about the application. The existing playground will be removed from its current location and a new one will be installed at a different location on campus. Chair Young opened the public hearing. There being no one to speak for or against the request, Chair Young closed the public hearing. Vice-Chair Halliburton moved to approve the special use permit subject to all recommended conditions listed in the staff report; the motion was seconded by Ms. Julie King and was carried by the following vote: Aye: Vice-Chair Ken Halliburton Julie King Tim Tipps Chair Davis Young Nay: None b. Application [Z-23-034] by Mr. Christopher Helstern, is requesting a special use permit to establish a home occupation (nail salon) on property in the Residential Single Family (RS-15) district located at 1430 Arrowhead Place. Mr. Matthew Blomeley presented the Staff Comments regarding this item, a copy of which is maintained in the permanent files of the Planning Department and is incorporated into these minutes by reference. Mr. Tipps inquired about the entrance to the salon. Mr. Blomeley stated that customers would enter at the rear of the home. Mr. Tipps asked if the sidewalk leading to the salon 2 MURFREESBORO BOARD OF ZONING APPEALS MINUTES October 25, 2023 entrance is paved. Ms. Aubrey Johnson, daughter of the applicant and the operator of the proposed salon, confirmed that the entrance is concrete. Ms. King stated that she has never seen a special use application for someone who does not own both the home and the business. She inquired about that situation. Mr. Blomeley responded that the standards state that the operator must reside at the home. If the operator moves from the property, they would no longer be able to operate the home-based business there. Chair Young opened the public hearing. There being no one to speak for or against the request, Chair Young closed the public hearing. Mr. Tim Tipps moved to approve the special use permit subject to all recommended conditions listed in the staff report and the addition of a ninth condition to have the special use permit lapse upon the operator ceasing to reside at the property; the motion was seconded by Vice-Chair Ken Halliburton and was carried by the following vote: Aye: Vice-Chair Ken Halliburton Julie King Tim Tipps Chair Davis Young Nay: None 6. Staff Reports and Other Business: a. Board of Zoning Appeals 2024 Calendar Mr. Blomeley presented the Board of Zoning Appeals 2024 Calendar. Ms. Julie King moved to approve the Board of Zoning Appeals 2024 Calendar; the motion was seconded by Vice-Chair Ken Halliburton and was carried by the following vote: Aye: Vice-Chair Ken Halliburton Julie King Tim Tipps Chair Davis Young Nay: None b. Continuing Education Mr. Blomeley informed the Board about continuing education opportunities. 7. Adjourn: 3 MURFREESBORO BOARD OF ZONING APPEALS MINUTES October 25, 2023 There being no further business, Chair Young adjourned the meeting at 1:25pm. ______________________________ ________________________________ CHAIRMAN SECRETARY 4  MURFREESBORO BOARD OF ZONING APPEALS STAFF REPORT DECEMBER 18, 2023 PROJECT PLANNER: BRAD BARBEE Application: Z-23-035 Location: 2946 South Church Street Applicant: Joey Rouse, for TNT Fireworks East Owner: Murfreesboro 1031, LLC Zoning: Commercial Highway (CH) Requests: A Special Use Permit in order to operate a temporary outdoor vending establishment (seasonal fireworks retailer) 1 Overview of Request The applicant, Joey Rouse, representing TNT Fireworks East, wishes to operate a fireworks tent for the New Year’s selling season from December 26, 2023, to January 2, 2024. While TNT has utilized this location several times in the past, this specific location on the property is new and, as such, requires a new review and approval by the BZA. The property is located at 2946 South Church Street and is currently developed with a Kroger-anchored shopping center. City of Murfreesboro Zoning Ordinance, Chart 1 (Uses Permitted by Zoning District) of the Murfreesboro Zoning Ordinance lists Fireworks Seasonal Retailer as a use allowed by Special Use Permit in the CH district. The applicant seeks a Special Use Permit from the Board in order to operate the proposed fireworks sales tent. The proposed tent is 30 feet by 50 feet and would be situated near the end of a row of parking remote from the building. The applicant has provided documentation from the property owner granting him permission to operate the fireworks tent on the site. The site is surrounded by existing commercial development also zoned CH. Relevant Zoning Ordinance Sections Chart 1 of the City of Murfreesboro Zoning Ordinance allows seasonal fireworks retailers as a special use in the CH district. City of Murfreesboro Zoning Ordinance Section 9(D)(2)(eeee) sets forth standards for temporary vendors in addition to the Standards of General Applicability in Section 9(C). The applicable standards are listed below with information from Staff on how the applicant intends to address them. After reviewing the criteria for the special use requirements for temporary vending uses, this project appears to meet the criteria. Standards of General Applicability with Staff analysis: (1) The proposed building or use will not have a substantial or undue adverse effect upon adjacent property, the character of the neighborhood, traffic conditions, parking, utility facilities, and other matters affecting the public health, safety, and general welfare: The use is temporary; as proposed, it will have no adverse impact on the above-mentioned list. (2) The proposed building or use will be constructed, arranged, and operated so as to be compatible with the immediate vicinity and not to interfere with the development and use of adjacent property in accordance with the applicable district regulations: The temporary tent is far enough away from neighboring property and will not interfere with the regular operation of nearby businesses during this week. (3) The proposed buildings or use will be served adequately by essential public facilities and services such as highways, streets, parking spaces, drainage structures, refuse disposal, fire protection, water and sewers; or that the persons or agencies responsible for the establishment of the proposed use will provide adequately for such services: Staff believes this application will not hinder the above services. Parking on this site is in ample supply. (4) The proposed building or use will not result in the destruction, loss, or damage of any feature determined by the BZA to be significant natural, scenic, or historic importance: 2  No features of significant natural, scenic, or historic importance have been identified on the subject property. (5) The proposed building or use complies with all additional standards imposed on it by the particular provision of this section authorizing such use: Additional standards for temporary vendors are listed below. Additional Standards for Institutional Group Assembly Uses with Staff Analysis: Temporary vendors shall be subject to the following additional standards: (1) The application for a temporary vendor Special Use Permit shall include the signature of the owner of the property or the owner’s authorized agent. The owner of the property may be the applicant if the owner is to be the operator of the temporary use. Included is the lease location summary letter. (2) The site for a temporary vendor shall be improved to provide adequate parking as determined by the BZA and shall provide for an on-site turn around area so that backing onto the street will not be necessary. Parking areas shall have an asphalt, concrete, or other hard dustless surface. In the event the proposed location will be on the site of an existing permanent business, the applicant must provide verification that the parking spaces displaced by the temporary vendor (including areas for tents, trailers, inventory, and parking for the temporary vendor) will not total more than 25% of the total parking available on the site. There will be ample asphalt parking on site. The tent only blocks 12 spaces and does not impede any travel lane. The Transportation Department has been consulted and is not recommending any additional traffic measures. (3) Traffic control measures may be required by the BZA. These may include a requirement that the applicant make provisions for directing traffic during expected peak hours of operation. The applicant is aware that additional traffic control measures could be required by the BZA. The Transportation Department has been consulted previously and is not recommending any additional traffic measures (4) Temporary facilities, including vehicles, trailers or tents, will be permitted provided they are erected or placed in conformance with all applicable Codes. Any tent must provide an emergency exit remote from the point of entrance into the tent. Vehicles, trailers, and tents must be located on an asphalt, concrete or hard dustless surface and in no event may be erected or placed on a gravel or grass area. All approved vehicles, trailers or tents must be maintained in good condition. Any vehicle, trailer or other moveable equipment used in connection with such temporary vendor shall be removed from the site at the conclusion of each business day. No such vehicle, trailer or equipment shall be removed and then be parked or stored in a residential area where such parking or storage is prohibited by ordinance or restrictive covenant. A vehicle or trailer may remain on the site overnight only if it is being used to provide security for items for sale remaining on the site, which items are not in a vehicle or trailer, provided the vehicle or trailer is constantly occupied or attended. The 3  applicant shall be required to identify any vehicle, trailer or equipment to be used, and its overnight use and location, in the application. The applicant will erect a 30ft x 50ft tent on the property for the sale of fireworks. in addition to this structure, the applicant will also have a storage container that remains overnight for security reasons. This is not inconsistent with other fireworks applications. The applicant has identified the location of the storage container on the location map included as the final page of this report. (5) Any site used for a temporary vendor must be located so that all parts of all facilities and sales inventory on the site are no more than five hundred feet from an operable fire hydrant. The site is approximately 320 feet from an operable fire hydrant. (6) A deposit in the amount of five hundred dollars ($500) per site shall be made with the Building and Codes Department. In the event the site has not been cleared and cleaned within the time specified, the deposit shall not be refunded. Additionally, unless the owner (and permit holder, if different) can prove good cause, the site shall not be eligible for other permits for temporary vendors, and the permit holder shall not be eligible for another temporary vendor Special Use Permit, for six (6) months for the first offense, twelve (12) months for the second offense and eighteen (18) months for the third and all subsequent offenses. Except as otherwise specifically provided herein in subsection [10], all sites must be cleared and cleaned within five (5) days after the expiration of the Special Use Permit. The applicant is aware of the deposit and the requirement to clean up the site after the selling season. (7) Adequate provision shall be made for restroom facilities on the property. Restroom facilities must be located on-site for all temporary vendor locations that include on- site overnight security. Portable toilets, if used, shall be located on the site and may not be located in any required front setback or in any required side yard. The BZA may approve the use of off-site restroom facilities provided they will be available during all business hours and provided that the applicant provides the written permission of the owner or manager of the off-site facilities. A portable toilet will be provided at the location. (8) The applicant shall post on the property documentation of the BZA’s granting of a temporary vendor Special Use Permit for inspection by City officials or others during the course of the temporary use. The applicant will comply with this requirement. (9) No special use permit shall be granted to any applicant who occupies or proposes to occupy premises for the temporary vendor where conditions exist on the site which are in violation of the sign, building, fire, electrical, or other ordinances of the City. If any such violations occur after the issuance of the temporary vendor Special Use Permit and same are not cured within 24 hours after notice, the Special Use Permit may be suspended, revoked or terminated by written notice, any temporary electrical service may be interrupted, and the deposit may be forfeited. The written notice 4  referenced in the previous sentence may be given by the Director of the Planning and Zoning Department, the Director of the Building and Codes Department, the City Manager or the Assistant City Manager. The City may, in addition, initiate any other enforcement remedies with respect to such violations as may be provided by law. The site has been inspected for both Codes and Zoning violations and none were found at the time of inspection. In addition, the applicant stated that he understands these requirements. (10) Any electric meter installed on a freestanding permanent pole and/or any temporary pole installed to supply power to a temporary vendor shall be removed within 14 days after the Special Use Permit expires. This does not apply as the applicant will be using a generator on-site for power. (11) Any site for a temporary vendor must be located so that all parts of all facilities and/or tents and all inventory are outside of any easements for electric power transmission or distribution. The site of the tent is not located in any easements. (12) Adequate provision shall be made for solid waste management. If a dumpster is to be located on-site, it shall be located in such a manner as to minimize impact on adjoining properties or other businesses on the same lot of record. The applicant will provide a trash can on-site and will remove trash from the premises as needed. (13) Signage for a temporary vendor shall conform to the requirements of the City’s sign regulations including but not limited to an application for a sign permit and payment of applicable sign permit fees. The granting of a temporary vendor Special Use Permit shall not, by itself, allow any signage on the site in addition to that which was allowed prior to the granting of such permit. The applicant understands this requirement. (14) The using, operating, or permitting to be played, used or operated any radio receiving set, musical instrument, phonograph, live band, amplifiers, loudspeakers, or other machine or device for producing or reproducing sound in such a manner as to disturb the peace, quiet and comfort of neighboring residents at any time with louder volume than is necessary for convenient hearing for the persons responsible for producing or reproducing such sound shall not be permitted. The applicant will not use any noise amplification devices. (15) A site may be used for temporary vending for no more than 70 days during any 12-month period. The BZA may approve a site to be used by multiple temporary vendors provided that no site shall be used by more than one temporary vendor at any time. A Special Use Permit for temporary vending shall expire at the end of one year after the date of approval. Notwithstanding the foregoing, a site which was approved by the Board of Zoning Appeals as a location for a temporary vendor of food or retail merchandise during the 12 months immediately preceding the effective date of this ordinance will continue to be an eligible site for a temporary vendor 5  Special Use Permit for up to six months during any 12 month period provided all other conditions for site approval continue to be met, and provided further, that the eligibility of any such site for the issuance of an extended Special Use Permit shall end at the end of any 12 month period during which the site was not given approval for use by a temporary vendor of food or retail merchandise, or on May 24 2024, whichever shall first occur. The application is for 1 week only and will not exceed the amount of time stipulated above. (16) The BZA may require additional standards be met in order to assure compatibility of the proposed location with adjoining properties. The applicant will adhere to any additional requirements. (17) Notwithstanding subsections [2] and [4] above, a temporary vendor may be permitted to locate parking areas, tents and other facilities on lots with gravel surfaces if such gravel surfaced lots were legally established, in existence and had been used for temporary vending purposes prior to January 1, 2007 provided however that the exception in this subsection shall end on November 14, 2017. The parking lot consists of asphalt, not gravel. (18) The application for and grant of a Special Use Permit for temporary vending of fireworks shall be subject to the following additional conditions. a. Any site for a fireworks seasonal retailer must be located so that all parts of all facilities and fireworks inventory on the site are no closer than two hundred feet to any fuel source. The site is approximately 262 ft from the nearest fuel source. b. No fireworks seasonal retailer shall be approved for any site within two hundred fifty feet of an establishment, which is licensed for on-site consumption of alcoholic beverages, or beer, as defined by state law. This measurement shall be made in a straight line without regard to intervening structures or objects from any structure, tent, or inventory storage area of a fireworks seasonal retailer to the nearest point of any structure or area where the alcoholic beverages or beer are licensed to be served. There is no restaurant, bar or other place of business located within 250 feet of the temporary fireworks tent licensed for on-site consumption of alcohol, beer, or wine. c. The sales period for a fireworks seasonal retailer location shall not be approved for a period that begins before June 28 or ends after July 5 and/or begins before December 26 and ends after January 2 of any year. No activity associated with the fireworks seasonal retailer shall be located on the property before June 22 or before December 21 and all materials including sales offices, tents, garbage, trash, etc., shall be removed from the lot on or before July 10 or January 7. 6  The applicant is aware of this requirement and is seeking to operate from December 26th until January 2nd. The proposed hours are 8am to 10pm. This is consistent with the city ordinance regarding temporary firework sales. d. Fireworks seasonal retailers must comply with all state and City laws and ordinances regarding the sale of fireworks, including but not necessarily limited to T.C.A. §68-104-101 and City Code §12. The applicant will comply with this requirement. e. A fireworks seasonal retailer shall not be approved for a period of more than one calendar year. The applicant is aware of this requirement. The request is only for the New Year’s 2023 selling season. f. The applicant must obtain a tent permit for the fireworks tent. The applicant is aware of this requirement. g. A fireworks seasonal retainer shall provide certification that the tent is flame- resistant or treated to be flame-resistant. The applicant will comply with this requirement. h. A fire extinguisher shall be kept on-site at all times. The applicant is aware of this requirement and will keep a fire extinguisher at the tent. i. The City’s fireworks ordinance shall be posted on-site. The applicant will comply with this requirement. j. No fireworks are to be set off on-site. The applicant will comply with this requirement. k. The site must pass an electrical safety inspection prior to opening for business. An electrical permit must be purchased from the Building and Codes Department in order to obtain this inspection. The applicant will comply with this requirement. (19) The application for and grant of a Special Use Permit for the temporary vending of food, beverages, animals, produce, other merchandise and any other such temporary sales event that is not an accessory use to the principal use on a lot or a portion of a lot shall be subject to the following additional conditions: [aa] Tables, chairs, or other furniture that would allow or facilitate on-site consumption of food or beverages shall not be allowed on the site. No vending of food or beverage is proposed in this application. Recommended Conditions of Approval: 1) This SUP is to allow TNT to operate a fireworks tent, 30 feet by 50 feet size, for the New Year’s selling season from December 26, 2023 to January 2, 2024; hours are 8am to 10pm. 7  2) The applicant shall provide certification that the tent is flame-resistant or treated to be flame-resistant. 3) The applicant shall keep and maintain a fire extinguisher on-site at all times. 4) The applicant shall keep the City’s fireworks ordinance posted on-site at all times. 5) Fireworks shall not be set-off on site. 6) The applicant shall apply for and pass an electrical safety inspection prior to opening for business. An electrical permit shall be purchased from the Building and Codes Department in order to obtain this inspection. 7) The fireworks tent shall meet all minimum building setback requirements for the CH zoning district and temporary fireworks vending standards. In addition, a tent permit must be purchased from the Building and Codes Department. Attached Exhibits 1. Site photos 2. Letter of explanation from applicant 3. BZA Application 4. Site Sketch Site Photo #1 8 Site Photo #2 Site Photo #3 9 Site Photo #3 10