MORGANTOWN BOARD OF ZONING APPEALS

Minutes of Special Meeting

6:30 PM February 7, 2008 City Council Chambers

MEMBERS PRESENT: Bernie Bossio, Jim Shaffer, Leanne Cardoso

STAFF: Christopher Fletcher, AICP

I. CALL TO ORDER AND ROLL CALL: Bossio called the Special Meeting to order at 6:30 PM stating that the purpose of the meeting is to consider petitions tabled at the Board’s January 20, 2008 hearing related to the proposed Metro Properties development on North Willey Street.

II. Agenda Items Tabled at the January 20, 2008 hearing. (NOTE the agenda was not on the CD provided to me).

A. V08-01 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #1 – Northeast) for variance relief from Article 1347.04 (A) (2) of the Planning & Zoning Code as it relates to maximum front setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Shaffer moved to remove the items tabled at the Board’s January 20, 2008 hearing; second by Cardoso. The motion passed unanimously.

Fletcher provided a detailed PowerPoint presentation to the Board to further illustrate and explain the changes to the development approved in July 2007 and how these changes necessitate several variance and conditional use approvals. Fletcher noted that the issue of the billboard is not a matter before the Board. The Administration’s position is that if the sign is found to be within the City, then enforcement action will be taken to remove the illegal billboard. If the sign is found to be outside the City, than the City can not pursue enforcement action. Fletcher noted that the Site Plan for the third building is pending before the Planning Commission.

Shaffer questioned where the bus stop would be. Fletcher stated the actual site is still being worked out with MountainLine, the City, and DOH but will most likely be on the Mileground side of the proposed driveway access point.

Bossio stated a letter was received from WVU advising they had withdrawn any and all objections to the development, a copy of which was presented to the BZA members at this evening’s meeting.

Fletcher also included at the meeting a memo concerning the resignation of Mark Furfari from the Board and a table illustrating the differences in variances approved in July 2007 and those before the Board.

David Biafora was present to address the Board. He stated the variances requested for landscaping are for snow plowing and maintaining the parking area. Individual parking spaces are not plowed.

Shaffer asked if Biafora’s request for the variance on Building #3 is the same rational used for building #1 and #2. Biafora responded it was.

Bossio questioned whether Biafora was granted this type of request before. Biafora stated he was for the Burroughs property. Fletcher clarified that the interior landscape islands every fifteen parking spaces was new under the 2006 major zoning ordinance amendment.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall – 1032 Ross Street. Rick and Dave Biafora have been the pace setters in Morgantown. They have developed many properties over the years and have good designers and good engineers. None of the other 55 counties in the state are as prosperous as we are. The Biafora’s are an economic development unto themselves. As a developer, would pray that the requested variances are granted.

Against:

Mark Furfari – Roosevelt Street. This project is in his backyard. He moved into his home in October of 2007 and this problem started in November of 2007 with the billboard. The setbacks to Building #1 are due to the billboard. Requests for setbacks were not asked for in July 2007. The developer indicated the building was pushed back because of bedrock, when in reality the bedrock is in the rear of the building. He believes the way the developer has dealt with the City, BZA and Planning Commission is underhanded. When he was asked why that 10 x 30 piece of land was omitted, he stated it was due to a gas main problem. He asks that this variance not be granted.

Bossio stated he gave Furfari some latitude when he referred to the billboard since it related to issue he had dealing with setbacks, and not specifically the billboard itself).

Bill Rice – 1225 Baker’s Ridge Road. He stated that he is only interested in where the bus stop will be. Wants to make sure it does not cause any undue congestion or traffic problems. As a member of the West Run Planning District Advisory Committee, if the bus stop is included out side the Morgantown area, it would come into the boundary limits of West Run; it could potentially cause traffic back up.

Paul Miller – 700 Monongalia Avenue. He stated that he is new to this process. After researching the BZA on the Website, it states their mission is to uphold the integrity of the zoning ordinance. The approval of this variance uses narrow criteria. The BZA may grant only if the Findings of Fact are found for in the positive; everything else is irrelevant. The burden of proof rests on the applicant. He stated that the Planning Department should not assist in preparing Findings of Fact. For a variance to be approved, objective evidence is required. He encouraged the BZA to deny this request since it doesn’t meet the BZA’s objectives.

There being no further public comments, Bossio gave Biafora five minutes for rebuttal.

Dave Biafora. Clarified there is no difference in the density, the parking lot is just being rearranged. Biafora is confused regarding the bedrock issue. That has nothing to do with backing up the building. Biafora actually has more parking than is required. The setbacks are due to the design and not the number of bedrooms.

Fletcher responded to Mr. Miller by saying the Planning Department assists all applicants in drafting their Findings and Facts, which has been requested by the Board in the past.

Fletcher continued reading the Staff Report stating that the Board of Zoning Appeals must determine whether the proposed requests meet the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant. Fletcher noted that each of the eight (8) variance petitions must be considered and acted upon by the Board separately. Staff recommendations follow each of the variance petition headings provided below.

Concerning V08-01, Staff recommends the following revisions to the petitioner’s related findings of fact and that the subject variance of five (5) feet be approved (deleted matter struck through; new matter underlined):

Finding of Fact #1 - ~~The~~ Increasing the front setback at this site may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. Motion passed unanimously.

Finding of Fact #2 – “~~It is conceivable that~~ Any future changes to the alignment of North Willey Street could dramatically affect the use of these buildings if the maximum front setback requirements was strictly adhered to. The increased capital costs arising from the issues addressed in Item 1, as well as the loss of revenue associated with vacant apartments during road re-alignment work could combine to render this project cost-prohibitive.”

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. Motion passed unanimously.

Finding of Fact #3 – “There are limited occupied dwelling in the surrounding vicinity with on 1 (apparently vacant professional building and several apartments located on the north side of this street. Detailed examination of these two facilities provides no indication that they would be harmed by the granting of this variance. Single-family homes are located on the opposite side of the road, rather isolated from the activities being addressed herein.” A defined “street wall” or setback symmetry is not currently present on either side of the immediate area of North Willey Street and therefore not adversely impacted by an increased setback for the subject building. Further, efforts to reduce right-of-way acquisition and development costs associated with any future road widening or intersection improvements that may be undertaken by the West Virginia Division of Highways appears prudent.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. Motion passed unanimously.

Shaffer moved to grant five (5) foot variance from the maximum front setback as requested; second by Cardoso. The motion passed unanimously.

B. V08-02 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #1- Northeast) for variance relief from Article 1347.04 (A) (4) of the Planning & Zoning Code as it relates to minimum rear setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Dave Biafora was present to answer any questions by the Board but made no additional comments

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall – 1032 Ross Street. Stated that in developing it is normal to run into bedrock and/or sandstone; nothing is science when developing property.

Against:

Wendy Surn – 11 Shaw Place. Asked that recommendations be given before the public comment portion of the meeting; was unable to download anything from the website.

Mark Furfari – Roosevelt Street. Finds it unusual the developer came before the BZA 7 months ago and asked for 3 variances; now the BZA is listening to variances of variances; he believes the building was pushed back because of density; the developer wants to put in as much as he can.; if this is approved the BZA is saying ok to density; asks that variance is not approved.

Susan Eason – 739 Monongahela Avenue. Believes the BZA and Planning Office should be responsible to the public; any developer without concern for the code is abhorrent; hopes the BZA’s role is toward thinking of the future; their role is to uphold the code; the Planner should have asked the developer to build the building to fit the property.

Paul Miller – Monongahela Avenue. Believes the project should fit the zoning code and if not, the reasons should be better established; if building #1 is already built when the variances were not previously approved, other builders will be motivated to do the same thing. Bossio then advised the BZA cannot consider the fact, by code, the building was under construction. It is looked at as a new request.

There being not further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal.

Biafora stated that he has never asked for anything not previously granted by the BZA; could have actually put more units in but didn’t; believes many things discussed this evening are minimal and should be able to be handled by the Planner Director administratively; a portion of the building was actually outside the city; WVU withdrew any objections it had.

Fletcher continued reading the Staff Report stating that Staff recommends the following revisions to the petitioner’s related findings of fact and that the 23-foot variance be approved for V08-02.

Finding of Fact #1 – “~~The~~ Encroaching into the minimum rear setback at this site using the proposed structure footprint may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways. Furthermore, construction of a retaining wall between the city roadway (North Willey Street) and the adjoining wall line of the Building 3 will be avoided given issuance of this variance is granted.”

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #2 – “~~It is conceivable that~~ Any future changes to the alignment of North Willey Street could dramatically affect the use of these buildings if the minimum rear setback requirements was strictly adhered to for the proposed building footprint. The increased capital costs arising from the issues addressed in Item 1, as well as the loss of revenue associated with vacant apartments during road re-alignment work could combine to render this project cost-prohibitive.”

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #3 – “There are limited occupied dwelling in the surrounding vicinity with on 1 (apparently vacant professional building and several apartments located on the north side of this street. Detailed examination of these two facilities provides no indication that they would be harmed by the granting of this variance. Single-family homes are located on the opposite side of the road, rather isolated from the activities being addressed herein.” The site’s rear and eastern side parcel boundaries are bordered by West Virginia University owned property, which is a part of the University’s farm system, is currently used as pastureland, and would not appear to be adversely impacted by this variance; the proposed development includes utility and storm water management improvements that serve the site and the general area; public access to the subject pastureland, located approximately 350 feet, will not be effected by this variance; and, the whole multi-family development (three buildings) encompasses the entire area classified as B-2 and therefore this variance will not impact other properties located within this B-2 District.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #4 – “This development typifies current land uses considering the apartments situated further to the west. This facility should enhance the current market value of the surrounding properties. The traffic impact is minimal considering the other types of land-uses possible (shopping mall) within this B-2 zoning district.” The rear property line of the parcel on which the development is proposed extends approximately 150 feet beyond the rear property lines of adjacent properties to the west that front Willey Street and the fact that the rear yard of this site is surrounded by WVU property and the remaining multi-family development, no adverse impact on market values or land use characteristics of adjacent properties will be created by this variance; no public or private streets exist or are proposed at or near the rear property line where this variance could contribute to traffic congestion.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant 23-foot variance for case V08-02 from the minimum rear setback as requested; second by Cardoso. The motion passed unanimously.

C. V08-03 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #1 – Northeast) for variance relief from Article 1367.08 (E) (3) of the Planning & Zoning Code as it relates to relief from providing internal landscape islands every 10’ maximum front setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District

Dave Biafora stated that he believes this has already been explained. The landscape plan has not yet been turned in but the landscaping is shown on the site plan; does give more than 5%. Bossio stated it does make sense for snow plowing. Biafora also stated that 2 light poles with heads would be installed; all buildings have “eyes” for security; the minimum requirement for lights has been met.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall – 1032 Ross Street. Our elevation is 1258 feet. When heavy snows fall the snow can be picked up and a reasonable level of parking can be obtained.

Against:

Susan Eason – 739 Monongahela Ave. She believes landscaping is a good thing to maintain in developments. Asks the variance be denied.

Mark Furfari – 1435 Roosevelt. Has a petition signed by 133 people regarding the billboard and saying no to Building #3. The buildings on the North Willey side of the street have no windows. The code is written to enhance the city. Asks to turn down the variance.

Paul Miller – 730 Monongahela Ave. Questioned the City’s benefit if the variance is granted. Snowplowing isn’t a compelling reason and can an exceptional or extraordinary circumstance be shown.

Wendy Surn – 11 Shaw Place. Looks at the development everyday. Feels islands are more attractive. Why can’t the rules be followed.

There being no further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal.

Dave Biafora – Willey Street. It is a convenience for plowing, but it is better looking. On the advice of the Planner, it was suggested something be put on the sides of the building, i.e, shudders, since there are no windows. The islands are being taken out but adding more than the required 5%. Fletcher noted the site plan that was approved in July 2007 didn’t include conditions for architectural context, but it is recommended for the third building’s site plan with the Planning Commission. Biafora stated he would do whatever he’s asked in the regard. Fletcher will advise the Planning Commission of this and reaffirm what is in the staff report regarding the architectural context to buildings # 1, 2 and 3. Biafora stated that he is on the record as being willing to do this for all buildings.

Fletcher continued reading the Staff Report stating that the Planning Department does not submit a recommendation as this variance petition appears to relate to parking lot design/layout choice and not necessarily to site constraints, impediments arising from regulatory compliance, etc. Although no formal action was taken, members of the Planning Commission expressed concern for the lack of internal landscaping and landscaped islands as required by the Planning & Zoning Code.

Finding of Fact #1 – Dictating the general type of internal landscaping with such islands provides a significant hindrance with respect to future snowplowing operations. Given the size and complexity of the vehicular/pedestrian travelways, alternate methods of satisfying the internal landscaping ratio is humbly requested. The landscaping will be designed and performed under the direct supervision of the City Planner to insure that a desirable presentation is provided.

Shaffer moved to find in the affirmative as presented by the petitioner; Cardoso seconded it. The motion passed unanimously.

Finding of Fact #2 – Persistent damage to snowplowing equipment is envisioned should this variance not be granted, and, as such, complete financial enjoyment of the property would not be realized if this variance is strictly enforced.

Shaffer moved to find in the affirmative as presented by the petitioner; second by Cardoso. The motion passed 2 to 1, with Bossio voting no.

Finding of Fact #3 – Evaluation of this variance and the potential ramifications should it be granted revealed no indication that the public welfare would be harmed or adversely affected.

Shaffer moved to find in the affirmative as presented by the petitioner; second by Cardoso. The motion passed unanimously.

Finding of Fact #4 – As long as similar interior landscaping is provided, which is being offered at this time, we foresee no reduction in the property values for these parcels or surrounding properties being realized. This variance has no impact on traffic conditions.

Shaffer moved to find in the affirmative as presented by the petitioner; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant variance V08-03 as requested, asking the Planner to carry the interest on the architectural context of the building to the Planning Commission and that the applicant was willing to work on that; second by Cardoso. Motion passed 2-1, with Bossio voting against.

D. V08-04 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #1 – Northeast) for variance relief from Article 1365.04 (G) of the Planning & Zoning Code as it relates to relief from the maximum parking standard at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Dave Biafora stated that he wanted to make sure that there were extra parking spaces available; 2 spaces that exceed the maximum.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

Mark Furfari – Roosevelt Street. When looking between buildings #1 and #2, all you will see is 80 cars; four rows of 20 with no break. Federal laws require parking for the handicapped. This project is a mess, it started with the billboard.

Susan Easen – Monongahela Blvd. Parking in the city is an issue. There is a need to be consistent and she is opposed to it. She is also concerned with the implementation of the zoning codes.

Wendy Surn – 11 Shaw Place. Concerned that the line is set for parking, why are two more spaces being granted.

There being no further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal.

Biafora stated that he feels its only common sense to have extra parking. Citizens need to understand development. Extra spaces are an advantage. The middle building is all handicapped accessible; they do not become handicapped ready until the handicapped move in. Fletcher noted there is a maximum parking standard for the business districts and that maximum parking for multi-family development in business districts, where permitted, may be revisited.

Fletcher continued reading the staff report stating that Staff recommends the following revisions to the petitioner’s related findings of fact and that the subject variance be approved (deleted matter struck through; new matter underlined):

Finding of Fact #1 – “The unusual zoning (B-2) in this locale, under which this apartment complex is being developed, results in the need for this variance for additional parking. Apartment sales in this City are typically contingent upon having sufficient parking, therefore, these unusual circumstance dictate the need to secure this variance.” This site does not enjoy on-street parking within the immediate area or within safe walking distance that could be used for quests visiting residents; therefore, additional on-site parking appears necessary to ensure that sufficient resident and guest parking is provided within the development.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #2 – “The parking space restriction contained in the B-2 zoning area is not truly applicable for apartment projects; therefore, this variance is necessary in order to enjoy the full financial benefit of this property. Properties within a short distance are not encumbered by this restriction because of their differing zoning designation. Further, multi-family development within the R-2 and R-3 Districts are not hindered by a maximum parking standard.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #3 – “The minor increase in parking spaces will do nothing but improve the situation with respect to the public welfare as it will fully minimize quests parking off-site (parking along the streets) that may adversely impact the surrounding traffic conditions and neighboring residents.”

Shaffer moved to find in the affirmative as presented by the applicant; second by Cardoso. The motion passed unanimously.

Finding of Fact #4 – ~~“As stated in Item 3, issuance of this variance will simply improve the traffic conditions and characteristics by optimizing the on-site parking and avoid parking along the City streets.”~~ Exceeding the maximum parking requirement for this site is intended to diminish potential impacts on surrounding properties and traffic congestion by providing sufficient on-site parking for residents and guests of the multi-family development.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant variance approval from the maximum parking standard as requested for case V08-04; second by Cardoso. The motion passed unanimously.

E. V08-05 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #2 – Middle) for variance relief from Article 1347.04 (A) (2) of the Planning & Zoning Code as it relates to the maximum front setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Dave Biafora stated that the issue had already been discussed and reviewed.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall.

Against:

Mark Furfari – Roosevelt Street. Why can’t traffic go all the way around building #2, why is it necessary to have a highway along a highway. Asked if that possibility had been considered. Bossio stated that for traffic to continue on to where traffic is parked would cause more problems. Furfari replied there would only be 16 units, didn’t see how that could cause a problem.

There being no further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal. Biafora declined.

Fletcher continued reading the Staff Report stating that

Finding of Fact #1 - “~~The~~ Increasing the front setback at this site may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways. Furthermore, the building was changed from the original location due to the internal road accessing the new building recently incorporated I into the facility.”

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Cardoso moved to find in the affirmative with Staff’s recommended revisions; second by Shaffer. The motion passed unanimously.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant a 15-foot variance from the maximum front setback for case V08-05; second by Cardoso. The motion passed unanimously.

F. V08-06 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #2 – Middle) for variance relief from Article 1347.04 (A) (4) of the Planning & Zoning Code as it relates to the minimum rear setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora stated that the variance request was for the same reasons as those for building #1. The plans for the size of the living area have not changed. There is a 10’ building to house utilities. The first plans approved in July 2007 have not changed.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

Mark Furfari – Roosevelt Street. Something has changed from the original plan that being the billboard. The impact of going outside the variance is greater with a four-story building.

Wendy Surn – 11 Shaw Place. Although she may not understand the development process, her perspective is from someone who has to see it. She is not concerned about the developer and what may be easier for him.

Susan Easen – Feel the public hasn’t had much influence. The BZA lacked holding up the zoning code. Doesn’t understand why the developer wasn’t made to redesign the building according to code; asked BZA to vote against the variance.

Paul Atkins – 1208 DesMoines. His objection has been to traffic coming out of the development onto North Willey Street. This does adversely affect public welfare.

There being no further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal. Biafora declined.

Fletcher continued reading the Staff Report stating that Staff recommends the following revisions to the petitioner’s related findings of fact and that the subject variance be approved (deleted matter struck through; new matter underlined):

Finding of Fact #1 – “~~The~~ Encroaching into the minimum rear setback at this site using the proposed structure footprint may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways. Furthermore, construction of an internal roadway leading to Building #3 prompted the need for this variance.

Cardoso moved to find in the affirmative with Staff’s recommended revisions; second by Shaffer. The motion passed unanimously.

Finding of Fact #3 – “There are limited occupied dwelling in the surrounding vicinity with on 1 (apparently vacant) professional building and several apartments located on the north side of this street. Detailed examination of these two facilities provides no indication that they would be harmed by the granting of this variance. Single-family homes are located on the opposite side of the road, rather isolated from the activities being addressed herein.” The site’s rear parcel boundary is bordered by West Virginia University owned property, which is a part of the University’s farm system, is currently used as pastureland, and would not appear to be adversely impacted by this variance; the proposed development includes utility and storm water management improvements that serve the site and the general area; public access to the subject pastureland, located approximately 450 feet, will not be effected by this variance; and, the whole multi-family development (three buildings) encompasses the entire area classified as B-2 and therefore this variance will not impact other properties located within this B-2 District.

Cardoso moved to find in the affirmative with Staff’s recommended revisions; second by Shaffer. The motion passed unanimously.

Cardoso moved to find in the affirmative with recommendations by Staff; second by Shaffer. The motion passed unanimously.

Shaffer moved to grant a 17-foot variance from the minimum rear setback for V08-06; second by Cardoso. The motion passed unanimously.

G. V08-07 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #2 – Middle) for variance relief from Article 1367.08 (E) (3) of the Planning & Zoning Code as it relates to the relief from providing internal landscape islands every 10 at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora stated that hehad already discussed this issue.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Mark Furfari – Roosevelt Street. Be consistent, approval was already granted for building #1.

Against: None

There being no further comments, Bossio declared that the public comment portion of the meeting was closed and granted Biafora a five minute rebuttal. Biafora declined.

Shaffer moved to find in the affirmative for all Findings of Fact submitted by the petitioner; second by Cardoso. Motion passed 2-1 with Bossio voting against.

Finding of Fact #3 – Evaluation of this variance and the potential ramifications should it be granted revealed no indication that the public welfare would be harmed or adversely affected.

Shaffer moved to grant variance V08-07 as requested; second by Cardoso. Motion passed 2-1, with Bossio voting against.

H. V08-08 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #2 – Middle) for variance relief from Article 1365.04 (G) of the Planning & Zoning Code as it relates to relief from the maximum parking standard on North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora provided not additional comments.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

None

There being no further comments, Bossio declared that the public comment portion of the meeting was closed.

Shaffer moved to find in the affirmative for all four findings and facts with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant variance V08-07 as requested; second by Cardoso. Motion passed unanimously.

I. CU08-03 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #2 – Middle) for conditional use approval for Article 1365.07 (A) as it relates to off-site parking for property located on North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.CU08-03 / Metro properties / City Gardens / North Willey Street.

Fletcher read the Staff Report stating that the Planning & Zoning Code provides in Article 1365.07 “Off-site Parking Facilities” that:

(A) In business, industrial and multi-family districts, the Board of Zoning Appeals may grant Conditional Use Approval to provide required spaces on a site that is:

(1) Within 300 feet of the principal use; and,

(2) Within a district that permits commercial parking lots as principal or conditional use.

The petitioner seeks conditional use approval for off-site parking for the entire development (three parcels with three structures) based on the following accommodations:

· All three structures will operate as one development with one means of access onto Willey Street. Restricting parking for residences and guests to the parcel in which they live or visit appears to be unnecessary and may create an undue enforcement obligation.

· The provision of accessible units and related accessible parking may need to be aggregated due to elevation changes from the site’s highest point (closest to the Mileground) to the site’s lowest point. Whether or not these units can be aggregated is still being reviewed by the City Engineer and the Chief Code Official.

The petitioner’s site plan demonstrates that the two outer-buildings are located less than 250 feet from each other and thereby meet the 300-foot distance requirement. For an illustration of the site location, please refer to Addendum A of the Staff Reports for the related variance petitions.

Article 1365.07 (C) stipulates that:

Off-site parking facilities shall be encumbered by an easement or similar agreement duly executed and acknowledged, which specifies that the land upon which the off-site parking facility is located is encumbered by the parking use. Said instrument shall specify and bind the time period to the anticipated life of the building or use to which the parking facilities are accessory. Said instrument must be placed on public record in the Office of the Clerk of the County Commission of Monongalia County.

Biafora stated that he worked out parking spaces for 8 FHA units; required to put handicapped parking closest to units; the additional parking will go to that; parking will be marking accordingly.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

None

There being no further comments, Bossio declared that the public comment portion of the meeting was closed.

Fletcher continued reading the Staff Report stating that the Board 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 applicant. Staff recommends the following revisions to the petitioner’s related findings of fact (deleted matter struck through; new matter underlined):

Staff recommends revisions to the petitioner’s related findings of fact.

Finding of Fact #1 – “~~This conditional use fully promotes parking within the project area.”~~ Each parcel will contain more parking spaces than what is required for its associated building. Only one access point will be provided for the entire development from North Willey Street. This conditional use will allow residents and guests to park freely regardless of their destination and thereby reduce the need to double park or circle within or around the development in hopes of a designated space becoming available.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #2 – “We simply ask to provide parking for certain buildings at varying locations within the complex limits.” Each building site, including the internal drive, has been designed to ensure adequate access and maneuvering for emergency vehicles.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #3 – “~~The lighting plan will not be modified or compromised and the parking provisions will not impact air or other environmental characteristics.”~~ The nature of this conditional use will have no positive or negative impact on the provision of adequate light or air to and around the residential structures.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion unanimously passed.

Finding of Fact #4 – “All parking and drive spaces and travelways, respectively, are of standard size.”

Shaffer moved to find in the affirmative as presented by petitioner; second by Cardoso. The motion passed unanimously.

Finding of Fact #5 – “~~Adequate space is being provided as a result of this conditional use.”~~ Simply allowing residents and guests the flexibility of finding available parking within the development regardless of their destination as well as allowing the potential concentration of accessible spaces has no impact on residential density.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #6 – “~~It retains guest parking to the project limits and avoids true off-site parking.”~~ Simply allowing residents and guests the flexibility of finding available parking within the development regardless of their destination as well as allowing the potential concentration of accessible spaces requires no increase in public services, utilities, or other public requirements.

Cardoso moved to find in the affirmative with Staff’s recommended revisions; second by Shaffer. The motion passed unanimously.

Finding of Fact #7 – “~~Haphazard parking will not impact surrounding properties/dwellings.”~~ Simply allowing residents and guests the flexibility of finding available parking within the development regardless of their destination as well as allowing the potential concentration of accessible spaces will have no positive or negative impact on the value of buildings.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #8 – “~~We are maximizing the on-site parking by allowing this conditional use.”~~ Multi-family residential development is permitted by-right in the B-2 District. This conditional use of off-site parking simply allows residents and guests the flexibility of finding available parking within the development regardless of their destination as well as allowing the potential concentration of accessible spaces.

Shaffer moved to find in the affirmative with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Fletcher stated that Staff recommends approval of the conditional use as requested with the following conditions:

1. That the number and location of accessible parking spaces be situated in accordance with applicable Fair Housing and ADA standards to the satisfaction of the City Engineer.

2. That subdivision recordation documents include easements, to the satisfaction of the Planning Director, that encumber each of the three parcels to address common access drive, vehicular circulation, off-site parking, solid waste storage/removal, U.S. Postal Service drop location, etc.

Shaffer moved to grant conditional use approval for case CU08-03 with Staff’s recommended conditions; second by Cardoso. The motion passed unanimously.

J. V08-09 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #3 – Northwest) for variance relief from Article 1347.04 (A) (2) of the Planning & Zoning Code as it relates to maximum front setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Fletcher read the Staff Report stating that the petitioner seeks site plan approval for the third and final building of the City Gardens development on North Willey Street. The proposed multi-family development is situated in the B-2 District. Addendum A of this report illustrates the location of the subject site.

The following points highlight the proposed development program:

· The development will include one structure.

· The structure will be two stories and contain 16 one-bedroom units.

· At the City’s request, access to the third phase will be shared with the previously approved ingress/egress/regress point onto North Willey Street. As North Willey Street is a State Route, said access will require permitting from the West Virginia Division of Highways.

· Addendum B of this report contains a Planning & Zoning Code review with the related B-2 requirements and performance standards.

· As illustrated on the site plan approved for Buildings 1 and 2, the petitioner has agreed to develop a transit shelter to encourage residents to utilize public transit. The petitioner is working with the Mountain Line Transit concerning final location and design specifications.

The following approvals must be obtained for the proposed project prior to building permit application:

· Site Plan Review for a Development of Significant Impact – The Planning Commission tabled this item at its January 10, 2008 hearing and requested that the City Engineer submit recommended conditions, if any, that could be placed on the approval that would serve to mitigate potential impact on traffic congestion and safety.

· Variances:

- V08-09......... Relief from maximum front setback.

- V08-10......... Relief from minimum rear setback.

- V08-11......... Relief from providing internal landscape islands every 15 spaces.

- V08-12......... Relief from the maximum parking standard.

Dave Biafora was present to address the Board and stated that he had nothing to add.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Mark Furfari – Roosevelt Street. Is consistent with buildings 1 and 2. It makes sense to keep it going.

Against:

None

There being no additional comments, Bossio declared the public comment portion of the meeting was closed.

Fletcher continued reading the Staff Report stating that the Board of Zoning Appeals must determine whether the proposed requests meet the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant. Please note that each of the four (4) variance petitions must be considered and acted upon by the Board separately.

Staff recommends the following revisions to the petitioner’s related findings of fact and that the subject variance be approved (deleted matter struck through; new matter underlined):

Shaffer moved to find in the affirmative for all four findings and facts with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Finding of Fact #1 – “~~The~~ Increasing the front setback at this site may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways. Furthermore, construction of a retaining wall between the ~~city~~ State roadway (North Willey Street) and the adjoining wall line of the Building 3 will be avoided ~~given issuance of~~ if this variance is granted so that a grade can be established to ensure the integrity of the N. Willey Street.”

Finding of Fact #4 – “This development typifies current land uses considering the apartments situated further to the west. This facility should enhance the current market value of the surrounding properties. The traffic impact is minimal considering the other types of land-uses possible (shopping mall) within this B-2 zoning district.” The lack of a defined “street wall” or setback symmetry and the lack of a consistent development pattern negate any adverse impact that may be caused to land use characteristics or market values within the immediate area as a result of exceeding the maximum front setback. Further, an increased setback, along with elevation changes on the site, facilitates access management to utilize one point of ingress/egress serving all three structures and thereby improving safety.

Shaffer moved to grant a 4-foot variance from the maximum front setback for case V08-09; second by Cardoso. The motion passed unanimously.

K. V08-10 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #3- Northwest) for variance relief from Article 1347.04 (A) (4) of the Planning & Zoning Code as it relates to minimum rear setback in the B-2 District at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora provided not additional comments.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall.

Against:

None

Finding of Fact #1 – “~~The~~ Encroaching into the minimum rear setback at this site using the proposed building footprint may reduce right-of-way acquisition and development costs associated with any ~~potential for~~ future road widening or ~~traffic control~~ intersection improvements (signaled interchange) may result in the current road alignment being modified such that it encroaches upon the existing right-of-way; therefore, extending the building further back into the parcel was deemed prudent that may be undertaken by the West Virginia Division of Highways. Furthermore, construction of a retaining wall between the city roadway (North Willey Street) and the adjoining wall line of the Building 3 will be avoided given issuance of this variance is granted.”

Finding of Fact #3 – “There are limited occupied dwelling in the surrounding vicinity with on 1 (apparently vacant professional building and several apartments located on the north side of this street. Detailed examination of these two facilities provides no indication that they would be harmed by the granting of this variance. Single-family homes are located on the opposite side of the road, rather isolated from the activities being addressed herein.” The site’s rear and western side parcel boundaries are bordered by West Virginia University owned property, which is a part of the University’s farm system, is currently used as pastureland, and would not appear to be adversely impacted by this variance; the proposed development includes utility and storm water management improvements that serve the site and the general area; public access to the subject pastureland, located approximately 600 feet, will not be effected by this variance; and, the whole multi-family development (three buildings) encompasses the entire area classified as B-2 and therefore this variance will not impact other properties located within this B-2 District.

Shaffer moved to find in the affirmative for all four findings of fact with Staff’s recommended revisions; second by Cardoso. The motion passed unanimously.

Shaffer moved to grant a 5-foot variance from the minimum rear setback for case V08-10; second by Cardoso. The motion passed unanimously.

L. V08-11 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #3 – Northwest) for variance relief from Article 1367.08 (E) (3) of the Planning & Zoning Code as it relates to the relief from providing internal landscape islands every 10 at North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora provided no additional comments.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

None

There being no additional comments, Bossio declared the public comment portion of the meeting closed.

Cardoso moved to find in the affirmative for all four findings of facts as provided by the applicant; second by Shaffer. The motion passed 2-1 with Bossio voting against.

Finding of Fact #3 – Evaluation of this variance and the potential ramifications should it be granted revealed no indication that the public welfare would be harmed or adversely affected.

Shaffer moved to grant variance approval for case V08-11 as requested; second by Cardoso. The motion passed 2-1 with Bossio voting against.

M. V08-12 / Metro Properties / City Gardens- North Willey Street: Request by Metro Properties (City Gardens – Building #3 – Northwest) for variance relief from Article 1365.04 (G) of the Planning & Zoning Code as it relates to relief from the maximum parking standard on North Willey Street. Tax Map # 01-21 Parcels # 73.01-73.02; B-2, a Service-Business District.

Biafora stated that he had nothing to add.

Bossio opened the public comment portion of the meeting.

In favor:

Latelle Hall

Against:

None

There being no further comments, Bossio declared that the public comment portion of the meeting was closed.

Shaffer moved to find in the affirmative for all four findings of fact; second by Cardoso. The motion passed unanimously.

Shaffer moved to approve the variance for case V08-12 as requested; second by Cardoso. The motion passed unanimously.

Bossio advised Biafora that he will be notified by the Planning Department in writing of the Board’s decisions and that these decisions can be appealed to Circuit Court within 30 days; any work done by the petitioner will be at their own financial risk.

Biafora then thanked the Board and the Planning Director for all their work.

The meeting was adjourned at 10:05 PM