Board of Zoning Appeals

TOWN OF SUMMERVILLE BOARD OF ZONING APPEALS AGENDA February 14, 2023 5:00 PM Town Hall (annex) – Council Chambers 200 S. Main Street I. Approval of minutes from January 10, 2022 II. OLD BUSINESS: 1. None III. NEW BUSINESS: 1. TMS # 137-09-02-009, 456 Waring Street, zoned GR-5 General Residential, owned by Richard Waring III – Variance request to reduce the required side setback from 10 feet to six feet for the primary structure, and reduce the required setback from five feet to one foot for the driveway. Ordinance Section 2.7.3 C and Section 7.7.3 B (District 1) IV. MISCELLANEOUS: 1. Election of Officers V. ADJOURN Posted February 7, 2023  Board of Zoning Appeals Tuesday, January 10, 2023 Council Chambers – 3rd Floor Summerville Town Hall Members Present: Staff Present: Denis Tsukalas, Chairman Tim Macholl, Zoning Administrator Don Nye, Vice Chairman Jessi Shuler, Director of Planning Lionel Lawson John Thurmes – Absent John Witherspoon – Absent Items on the agenda: MINUTES: 1. Approval of minutes from December 20, 2022 OLD BUSINESS: 1. None 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) MISCELLANEOUS: 1. Election of Officers 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. Nye made a motion to approve the December 20, 2022 Minutes. The motion was seconded by Mr. Lawson. The motion was approved 3- 0. OLD BUSINESS 1. None NEW BUSINESS 1. 123 S. Cedar Street – 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. Mr. Macholl read the staff report and introduced the application to the Board. Mr. Macholl explained to the Board and the audience that because of the absence of two members, any decision regarding the application would need to have a unanimous vote to pass. The Chairman opened the hearing to public comments. Mr. Zachary Closser addressed the Board. He explained that he was legal representation for the building owner. He stated that this Business License and Conditional Use permit should be issued. Staff had reviewed the application and felt that it met the requirements of the Ordinance. He said that the decision should be consistent with the UDO and Staff’s findings. Reversing or modifying the approval would be inconsistent with prior approvals for Vape FX. He thought it would be unfair. He stated that he site on the Board of Zoning Appeals for North Charleston. He said it would be more appropriate to change the law as opposed to molding the law for each individual instance. Mr. Nye asked if Vape FX had been in place prior to the UDO. Mr. Macholl confirmed that he was confident that it was opened prior to the passage of the UDO. Ms. Jana Riley, Executive Director of the Public Works Art Center came to the podium and addressed the Board. She stated that the conditions of the UDO should be upheld. Ms. Riley said that she was the one that had filed the appeal. She said that she felt that the proposed use was not compatible with the family friendly mission of the PWAC, and that downtown should be a prosperous, enriching, creative type of town that all residents can be proud of. She stated that the zoning ordinance requires a 1,000 foot separation from an educational institution. She pointed out Hutchinson Square, Parks, and other public facilities were closer than that. She said that St. Luke’s operates a licensed daycare facility 770 feet from this location. She pointed out that the ordinance sites sensitive receptors, and that the elderly and children, the most frequent users of the PWAC, are the most sensitive receptors. Shed did note that the property is directly adjacent to the PWAC parking, and that it had previously been a liquor store. She expressed a concern about the nature of the vape shop and the products sold. Saying that when kids see these devices with flashing lights, and then people blowing clouds of smoke it looks cool and is compelling to young people. She noted that the US Surgeon General had called vaping an epidemic. The Chairman asked that anyone who wished to speak to try to keep that statement to no more than three minutes. Mr. Brad Mallette, of 108 E. 3rd North Street, raised his concern about legislating against issues based on morality. He pointed out that he is involved with a local brewery and it concerned him that moral objections to the use were the basis, and where would that possibly end. Mr. Dickie Miller addressed the Board. He stated that both the PWAC and St. Luke’s daycare are less than 1,000 feet from this location, and asked the Board to do what he thought was right and deny this application. He said that this is a beautiful town and we should keep it that way. Ms. Diane Frankenberger addressed the Board. She said that she has been a resident of Town since 1967 and that she had seen a lot of change in the years since. She said that Summerville is a good place, and that the Community should set the standards. She stated that she knew the property owner and that in conversations with him about the leasing of that building she said he told her that he was having problems leasing it and that the only interest he had received was from vape shops, and that he didn’t want it to be a vape shop. He had told her that it was going to be a number of different uses, none of which materialized. She stated that she had never been in a vape shop a=so she went a visited the location on Main Street and was surprised. She stated that this is a situation where the Community needs to set the standard for what they want to see somewhere. The community has to set it’s own standards and we need to protect our youth. Mr. Brett Rashtchian Re/Max Pro Realty Broker, came to the podium and addressed the Board. He stated that this is an issue about property rights and he agreed with the right to appeal, but he felt that this appeal is not appropriate. This is a legal use and staff had determined that it met the conditions established in the UDO. He pointed out that a bar is within 500 feet, and that it is legal to drink within the PWAC center. He continued to point out that the property owner, Mr. Lutes, had turned down other uses, but he had to fill the space. The applicant had requested a longer lease, but he had purposely given a shorter lease to hopefully change the tenant sooner if need be. He pointed out that alcohol and vaping are both age restricted, and that if it meets the requirements of the ordinance the decision should stand. Ms. Joy Varley, of the Carnes Crossroads Artist Collaborative, a tenant in the PWAC, addressed the Board. She stated that this was a group of retired educators, and they had been drawn to the PWAC because of the area. She felt that the vape shop would be a problem. Its location would prevent the providing a safe place for children. Ms. Gretchen Cuddy, retired nurse, said that she had moved here two years ago and felt that the Board should reconsider the approval from a health standpoint. She thought that allowing the vape shop to open would be a violation of the UDO. The Chairman asked if there were any other comments. Hearing none he called for a motion. Mr. Nye stated that it is their job to abide by the UDO. The UDO clearly says no youth centers or recreation centers. Mr. Nye made a motion to reverse the action of Town Staff. Mr. Tsukalas seconded the motion. The Chairman called for any further discussion. Mr. Tsukalas stated that this is an issue of the safety for the youths of the Town. Mr. Lawson stated that he felt that the Board should not reverse the decision of staff, and stated that he would not vote for the motion. The board discussed the situation and the vote ended 2-1 with Mr. Lawson voting against. The motion failed to pass. Mr. Macholl reminded the Board that the decision had to be unanimous and explained to the audience that with the failure of the motion to pass, the Board could entertain an alternative motion to defer to allow the Board to come back in whole to give it a proper opportunity to be reviewed by the Board. 2 Mr. Ny made a motion to Defer the decision to the next meeting. Mr. Tsukalas seconded the motion. Hearing no further discussion, the Chairman called for the vote. The motion to defer was approved 3-0. MISCELLANEOUS: 1. Election of Officers – The Board discussed the election of officers, and came to the consensus that it would be better to have this discussion with a full panel. Mr. Nye made a motion to Defer to the following meeting. The motion was seconded by Mr. Tsukalas. Hearing no further discussion, the Chairman called for the vote. The motion passed 3-0. ADJOURN: There being no further business, the meeting was adjourned at 5:40 PM by the Chairman. Respectfully Submitted, Date: ________________ Tim Macholl Zoning Administrator Approved: Denis Tsukalas, Chairman _____________________________________; or, Don Nye, Vice Chairman ______________________________________ 3  VARIANCE REQUEST TMS #137-09-02-009 456 Waring Street, Summerville, SC STAFF REPORT BOARD OF ZONING APPEALS February 14, 2023 Request: Variance request to reduce the required side setback from 10 feet to six feet for the primary structure, and reduce the required setback from five feet to one foot for the driveway for the construction of a new house Property Zoning: GR-5 General Residential Surrounding Zoning: North: GR-5 General Residential South: PUD Planned Unit Development East: GR-5 General Residential West: GR-5 General Residential Ordinance requires: Ordinance Section 2.7.3.C Side Setback 15 feet; and Section 7.7.3 B Minimum separation from adjacent property line – 5 feet Response: 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. b. Other property. Extraordinary conditions generally do not apply to other property in the vicinity. 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. 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. Background: The need for a setback variance was determined prior to application for building permit. Staff feels that the applicant does not meet all four criteria, and that a hardship is not present. a. Extraordinary conditions do not exist on the property. The hardship is based on the proposed home plan. The house is wide and has a side load garage which requires that the entire frontage be filled with the home and the extra space on the side for the driveway. An alternate home plan with a narrow front and a detached garage could potentially fit on the property without the need for a variance. The one exception to this is the existing open space to the right of the requested variance. This area will remain open space in perpetuity due to it being required open space for the adjacent residential development. b. Other property in the area do not have similar lot shapes, most are irregular. c. Utilization of the property is not eliminated due the setbacks. d. Detriment will not be caused to other properties by the issuance of this variance on this property.  456 Waring Street - Location Map 1:2,257 2/6/2023, 2:04:33 PM 0 0.01 0.03 0.06 mi Summerville Addresses 0 0.03 0.05 0.1 km Summerville Parcels Maxar, Microsoft Town of Summerville Maxar, Microsoft |  456 Waring Street - Zoning 215 GERMANTOWN RD 217 GERMANTOWN RD 219 GERMANTOWN RD 454 WARING ST 450 WARING ST St g a rin W 452 WARING ST 456 WARING ST 458 WARING ST 100 LOWNDES LN 460 WARING ST St t g wS a rin 102 LOWNDES LN W llo Ta 104 LOWNDES LN Ln des Low 106 LOWNDES LN 113 TALLOW ST 461 WARING ST 108 LOWNDES LN 463 WARING ST 111 TALLOW ST 118 NOISETTE ROW 105 LOWNDES LN 17 NOISETTE ROW 109 TALLOW ST SETTE ROW Lowdes 114 NOISETTE ROW Ln 107 TALLOW ST 1:1,128 2/6/2023, 2:01:47 PM 0 0.01 0.01 0.03 mi Zoning Districts 0 0.01 0.03 0.05 km GR-5 PUD Esri Community Maps Contributors, City of Charleston, Charleston County GIS, © OpenStreetMap, Microsoft, Esri, HERE, Garmin, SafeGraph, Summerville Addresses GeoTechnologies, Inc, METI/NASA, USGS, EPA, NPS, US Census Bureau, USDA Town of Summerville Esri Community Maps Contributors, City of Charleston, Charleston County GIS, © OpenStreetMap, Microsoft, Esri, HERE, Garmin, SafeGraph, GeoTechnologies, Inc, METI/NASA, USGS, EPA, Shuler, Jessi From: Beth Messervy <bethmesservy@gmail.com> Sent: Thursday, January 19, 2023 9:06 AM To: Shuler, Jessi Subject: BZA Variance Statement: Waring - 456 Waring Street On behalf of Ricky Waring, here are the questions to the 4 State mandated criteria for a variance: a) The property adjacent to the proposed structure (on the right side if looking at the front of the house from the road) will be open space in perpetuity. There will not be a structure on that adjacent property. The proposed driveway for 456 Waring Street is so close to the adjacent property (on the left side) because the house will have a side entrance garage which needs a wider turn radius. b) The adjacent property on the right side of the proposed structure will be open space in perpetuity, so there can be a 30 ft setback on the property at 456 Waring Street. c) The application of this chapter's provisions to the setback on the left side of the property (where the driveway for the garage will go) would effectively prohibit the driveway from having a wide enough turn radius to get into a side entrance garage. d) The authorization of this variance will not be of substantial detriment to the adjacent property because the adjacent property on the right will be open space in perpetuity and the side entrance garage complements the look of the surrounding houses. 1