Board of Zoning Appeals

TOWN OF SUMMERVILLE BOARD OF ZONING APPEALS AGENDA January 10, 2023 5:00 PM Town Hall (annex) – Council Chambers 200 S. Main Street I. Approval of minutes from December 20, 2022 II. OLD BUSINESS: 1. None III. NEW BUSINESS: 1. TMS # 137-07-07-021, 123 S. Cedar, zoned D-MX Downtown Mixed Use owned by Much Required LLC – Appeal of Administrator Decision to issue a Business License and Conditional Use Permit for a new Tobacco/Tobacco Alternative Sales Store in accordance with Section 3.4.5 D of the Summerville Unified Development Ordinance. (District 2) IV. MISCELLANEOUS: 1. Election of Officers V. ADJOURN Posted January 3, 2023  Board of Zoning Appeals Tuesday, December 20, 2022 Council Chambers – 3rd Floor Summerville Town Hall Members Present: Staff Present: Denis Tsukalas, Chairman Tim Macholl, Zoning Administrator Don Nye, Vice Chairman Lionel Lawson – Absent John Thurmes John Witherspoon Items on the agenda: MINUTES: 1. Approval of minutes from November 8, 2022 OLD BUSINESS: 1. None NEW BUSINESS: 1. TMS # 146-12-04-055, 124 Saw Palm Drive, zoned PUD Planned Unit Development owned by Laura and Clifford Pfeiffer – Variance request to increase the maximum lot coverage from 35% to 41% for a patio cover. Ordinance Section 2.10 (District 3) 2. TMS # 130-14-11-001, 712 W. 5th North Street, zoned N-MX Neighborhood Mixed Use, owned by He Weijin & Meihua Wu – Variance request to allow parking to be constructed in the front yard. Ordinance Section 2.5.6 A. (District 1) MISCELLANEOUS: 1. None The meeting was called to order at 5:00 PM by the Chairman. The Chairman asked for consideration of the minutes in the packet, hearing no corrections or edits he called for a motion. Mr. Thurmes made a motion to approve the November 8, 2022 Minutes. The motion was seconded by Mr. Nye. The motion was approved 4-0. OLD BUSINESS 1. None NEW BUSINESS 1. 124 Saw Palm Drive – TMS # 146-12-04-055, 124 Saw Palm Drive, zoned PUD Planned Unit Development owned by Laura and Clifford Pfeiffer – Variance request to increase the maximum lot coverage from 35% to 41% for a patio cover. Ordinance Section 2.10. Mr. Macholl read the staff report and introduced the application to the Board. He explained that staff felt that the applicant does not meet all four criteria and a hardship is not present. Mr. Macholl explained that this was a reapplication, and that the Board had previously approved the variance. It came to light at the time of review of the permit application that some of the previously submitted dimensions, specifically for the shed, were not entirely accurate and that a new variance would be necessary to address the situation before permits could be issued for the project. Ms. Laura Pfeiffer of 124 Saw Palm Drive addressed the Board, she stated it was a measuring error and requested the Board please reapprove the request because nothing had changed in the request. Mr. Thurmes asked to clarify the difference between the original application and the current request. It was confirmed that it was a small difference and that it was related to the existing shed. Mr. Nye made a motion to approve the requested variance. Mr. Witherspoon seconded the motion. The Chairman called for any further discussion. In order for a variance to be issued by the Board of Zoning Appeals, an applicant is required to show that all four of the conditions listed below have been met and an unnecessary hardship must be shown. (b) Variances. The board has the power to hear and decide requests for variances when strict application of this chapter's provisions would cause an unnecessary hardship. (1) The following standards must apply for finding an unnecessary hardship: a. Extraordinary conditions. There are extraordinary and exceptional conditions pertaining to the particular piece of property, which could exist due to topography, street widening or other conditions which make it difficult or impossible to make an economically feasible use of the property. This is existing lot coverage and there will not be an expansion of lot coverage b. Other property. Extraordinary conditions generally do not apply to other property in the vicinity. This is a unique situation on this particular property c. Utilization. Because of these extraordinary conditions, the application of this chapter's provisions to a particular piece of property would effectively prohibit or unreasonably restrict the utilization of the property. Utilization of the property is negatively impacted by the application of the ordinance d. Detriment. The authorization of a variance will not be of substantial detriment to adjacent property or the public good, and the character of the district will not be harmed by granting of the variance. Because these are existing conditions, and have been in place, coupled with the fact that it is not an expansion of lot coverage, there should not be substantial detriment caused to adjacent properties Hearing no further discussion, he called for the vote. The motion was approved 3-1 with Mr. Thurmes voting against. 2. 712 W. 5th North Street – The second item under New Business TMS # 130-14-11-001, 712 W. 5th North Street, zoned N-MX Neighborhood Mixed Use, owned by He Weijin & Meihua Wu – Variance request to allow parking to be constructed in the front yard. Ordinance Section 2.5.6 A. Mr. Macholl read the staff report and explained that it was staff’s position that the applicant met all four criteria for a variance and that a hardship was present. He recommended the following conditions: 1. That the Variance will cease to apply upon the complete redevelopment of the property for a new commercial development. 2. The parking will be screened according to Section 8.5.2 The Board asked if this was similar to what had been previously approved down the street. This was confirmed by staff. The applicant explained that there are existing drives one on W. 5th North and one on Birch. Traffic will come in from 5th and leave on Birch. The Board felt that because they have previously approved this variance request in the corridor, they should respect that precedent. Mr. Thurmes made a motion to Approve the variance with Staff’s Recommendation for Conditions and Staff’s Findings of Fact. That motion was seconded by Mr. Witherspoon. Hearing no further discussion, the Chairman called for the vote. The motion was approved 4-0. MISCELLANEOUS: 1. None ADJOURN: There being no further business, the meeting was adjourned at 5:12 PM by the Chairman. Respectfully Submitted, Date: ________________ Tim Macholl Zoning Administrator Approved: Denis Tsukalas, Chairman _____________________________________; or, Don Nye, Vice Chairman ______________________________________ 2  123 S Cedar St Summerville, South Carolina Google Street View - Apr 2022 Image capture: Apr 2022 © 2023 Google Location Zoning Map  APPEAL TMS#137-07-07-021 123 S. Cedar Street, Summerville, SC STAFF REPORT BOARD OF ZONING APPEALS January 10, 2023 Appeal: Staff received written objections to the applicant’s application for a Business License and Conditional Use Permit for a new Tobacco/Tobacco Alternative Sales Store in accordance with Section 3.4.5 D of the Summerville Unified Development Ordinance. Appeals of Administrator Decisions are required to be heard and decided by the Board of Zoning Appeals Section 13.10.2. The Board has the authority to take the following actions: 1. Affirm the action of Town Staff; 2. Modify the action of Town Staff, and to that end, the BZA shall have all the powers of the officer, board or commission from which the appeal is taken, and may issue a permit or direct that a permit be issued; or, 3. Reverse the action of Town Staff, and to that end, the Board of Zoning Appeals shall have all the powers of the officer, board or commission from which the appeal is taken, and may issue a permit or direct that a permit be issued. Background: A real estate broker contacted Town Staff regarding establishing a Vape Shop at the proposed location of 123 S. Cedar Street. Staff reviewed the proposed location based on Section 3.4.5 D of the UDO which states: D. Tobacco/Tobacco Alternatives Sales Store (D-MX, UC-MX, G-B, L-I) 1. Location requirements: a. Tobacco/Tobacco Alternatives Sales Stores shall only be allowed in the D-MX, UC-MX, G-B and L-I districts and shall require approval of a conditional use permit. b. No new Tobacco/Tobacco Alternatives Sales Stores shall be established or located within 500 feet from any existing residential district, any sensitive receptors, or similar use as determined by the Town Staff. c. If the proposed location is within one thousand (1,000) feet of a parcel occupied by a public or private kindergarten, elementary, middle, junior high or high school; licensed child-care facility or preschool other than a family day-care facility; public playground; youth center or public recreational facility, the Town Staff shall consider the compatibility of the proposed use and said use(s) and determine whether: i. The proposed use can be approved as proposed; or ii. Conditions can be imposed to mitigate any adverse impacts; or iii. The proposed use should be considered for another locations. iv. This determination shall be accompanied by a finding that there are other suitable locations for the proposed use and that said locations will not have the same or greater adverse impacts than the proposed location. The distances set forth above shall be measured as a radius from property line to property line without regard to intervening structures. d. The applicant shall be required to submit a map, drawn to scale, showing how their proposed business location meets the aforementioned location requirements as part of the conditional use permit application It was Staff’s determination that the Tobacco Alternative Sales Store could be located at 123 S. Cedar Street based on the following evaluation:  a. The property in question is zoned D-MX Downtown Mixed Use b. There are no residential districts, sensitive receptors or similar uses within 500 feet of 123 S. Cedar Street. c. There are no public or private kindergarten, elementary, middle, junior high or high school; licensed child-care facility or preschool other than a family day-care facility; public playground; youth center or public recreational facility within 1,000 feet of the proposed location. d. Based upon the provided map, attached for your reference, the applicant meets the required location requirements. Based upon the above evaluation staff determined that a new Tobacco/Tobacco Alternative Sales Store met the conditions to be issued a Business License and Conditional Use Permit to operate at 123 S. Cedar Street. 2 3 From: Richard Miler <rlmiler@milerproperties.com> Sent: Tuesday, January 3, 2023 6:45 PM To: Macholl, Tim Subject: proposed Vape shop at 123 S Cedar Street Dear Mr. Macholl: I am writing as one opposed to the recent proposal of a Vape Shop business desirous of leasing 123 South Cedar Street in downtown Summerville. As a professional real estate Broker for over 35 years of selling and leasing both residential and commercial properties, I stand firmly in the corner of property owner rights. I believe it is one of the main bedrocks of property ownership. I am also aware of the current zoning regulations that affect this parcel, which allow various spurious businesses to operate. Even though they be "legal" according to zoning, the fly in the face of common sense. I also am aware that this business is already in operation at a different location on South Main Street. However, if I am understanding the language of the last amended UDO in July of 2022, the general intent of this section of the Ordinance is protect the safety and general welfare of others within a certain distance ( 1000 feet) from those business's that may be generating Tobacco and Tobacco Alternative Sales and Use products. Vape shops/stores certainly fall into this category. With the Summerville Family YMCA and Gymnastics Center directly across the street, while maybe not specifically labeled as a sensitive receptor, they are a youth center, where have thousands of children each year come into the facilities via the different recreational, health, and well-being activities that the YMCA provides. In addition, The Public Works Art Center, which is adjacent to this property, has the pleasure and responsibility of hosting hundreds of children and young students each year who come and learn and experience the numerous joys and merits of the arts. The American Thoracic Society has determined by clinical research that E-Cigarette Vapor with nicotine definitely causes airway mucociliary dysfunction, or in simple terms, severe breathing difficulties. So the question arises; will the town staff and council consider the compatibility of the proposed use of this property, and in doing, make the prudent decision to protect the general welfare of all those innocent young people who will be affected by their actions? Perhaps, even assist them in finding another location that better serves the needs of all. On behalf of many other concerned citizens who express the same fears as I do, please reject this approval. Kindest regards, Dickie Miler From: Gretchen Cuddy <gcfloraldesigns@gmail.com> Sent: Tuesday, January 3, 2023 12:02 PM To: Macholl, Tim Subject: Vape Shop To the Zoning Administrator, As a new Board Member with the Public Works Art Center, I have recently been made aware of the issue regarding a Vape Shop to be possibly located near the Art Center as well as the YMCA. I believe this location of a Vape Shop would violate the ordinance written to avoid these types of shops to be located within a 1,000 feet of institutions that provide educational instruction to children. Please accept this letter as a request to deny the Vape Shop from locating to this particular location as it stands in violation to the ordinance. Respectfully submitted, Gretchen Cuddy Sent from my iPhone From: Brad Ward <brad.ward@Foundant.com> Sent: Friday, December 23, 2022 2:47 PM To: Macholl, Tim Subject: Oppose Vape Shop at 123 Cedar Street Mr. Macholl: I hope this finds you well. I recently became aware of a proposed vape shop at 123 Cedar Street. We, as in my family, residents of Summerville, would like to strongly oppose this. The regulations state: c. If the proposed location is within one thousand (1,000) feet of a parcel occupied by a public or private kindergarten, elementary, middle, junior high or high school; licensed child-care facility or preschool other than a family day-care facility; public playground; youth center or public recreational facility, the Town Staff shall consider the compatibility of the proposed use and said use(s) Our family is frequent visitors of downtown and enjoy the use of both YMCA, a public recreational facility, and the Public Works Art Center, also heavily utilized by our young children that provides an art school and youth center during the summer. Aside from the esthetics of downtown Summerville being all wrong for a Vape Shop, it goes against your own regulations if I understand them correctly to be locating this so close to two important facilities servicing children and families. We can’t protect our children from being exposed to negative influences. But it is our duty—and squarely yours as a zoning administrator—to do what we can to create a safe, enriching environment for our families and children. This is Historic Summerville with a strong presence of focusing on community, youth, and recreational space mixed with the right commerce to promote its values and safety in mind. There are ample commercial developments on the edges of downtown and across Summerville that can serve a Vape Shop, but one across from the community YMCA and Public Works Art Center is not one of them. Nowhere in downtown is reasonable given the important role is plays as a town center and community gathering space with hundreds of family events throughout the year. Please reconsider this approval and help protect Summerville’s downtown reputation, family values, and our children from an influence that directly targets youth to form unhealthy addictions for a lifetime of negative consequences. Regards, Brad Ward Summerville Resident 208 OakBend Street Summerville, SC 29486 Supporter of YMCA and Public Works Art Center Brad M. Ward (he/his)| Regional Director, Community Foundations | brad.ward@foundant.com o: 406-922-5602 c: 812-639-1134 | Remote Location: Charleston, South Carolina www.foundant.com | Headquartered: Bozeman, MT | Bio Want to schedule time to chat? Check my availability on calendly. Disclaimer The information contained in this communication from the sender is confidential. It is intended solely for use by the recipient and others authorized to receive it. If you are not the recipient, you are hereby notified that any disclosure, copying, distribution or taking action in relation of the contents of this information is strictly prohibited and may be unlawful. From: Penny Merriman <merrimanp@bellsouth.net> Sent: Monday, January 2, 2023 4:47 PM To: Macholl, Tim; Terryjenkins Subject: Vape shop Tim, As a Summerville YMCA board member, I am very much against a vape shop opening anywhere in downtown Summerville, especially across the street from our FAMILY YMCA. Surely, we have an ordinance in place that prevents this type of business opening in proximity to our local youth organization. Please reconsider. Respectfully, Penny Merriman  An official website of the United States government MENU Search EPA.gov EPA Region 1 CONTACT US What are Sensitive Receptors? Sensitive receptors include, but are not limited to, hospitals, schools, daycare facilities, elderly housing and convalescent facilities. 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