MORGANTOWN BOARD OF ZONING APPEALS

MORGANTOWN BOARD OF ZONING APPEALS

Minutes

6:30 PM February 20, 2008 City Council Chambers

MEMBERS PRESENT: Bernie Bossio, Jim Shaffer, Leanne Cardoso, George Papandreas, Tom Shamberger

MEMBERS ABSENT: None

STAFF: Christopher Fletcher, AICP

I. CALL TO ORDER: Bernie Bossio called the meeting to order at 6:30 PM

II. MATTERS OF BUSINESS

A. APPROVAL OF MINUTES: Fletcher reported that the approval of the January 2008 minutes and the special meeting minutes of February 7, 2008 will be postponed until the March 13, 2008 meeting.

B. NEW MEMBERS: Bossio welcomed new Board members Tom Shamberger and George Papandreas.

III. OLD BUSINESS: None

IV. NEW BUSINESS:

A. CU08-04 / Berean Southern Baptist Church / Listravia Avenue: Request by Berean Southern Baptist Church for conditional use approval from the Planning and Zoning Code, Table 1331.05.01, Permitted Land Uses, as it relates to the re-use of closed/vacant school or church for property located on Listravia Avenue. Tax Map #33 Parcels #20, 28-29; an R-1A, Single-Family Residential District.

Fletcher read the Staff Report stating that the Berean Southern Baptist Church recently purchased the former Sabraton School on Listravia Avenue from the Monongalia County Board of Education for the purpose of occupying a portion of the structure to provide worship services and related programming. Table 1331.05.01 “Permitted Land Use Table” of the Planning & Zoning Code provides that the “Re-use of Closed/Vacant School or Church” requires conditional use approval in the R-2 District. Addendum A of this report illustrates the location of the subject site.

The petitioner noted in his application that one-fourth of the building will be used for worship services and three-fourths of the building will be used for basketball, education, training, and community services. The petitioner has stated that no residential or commercial uses are proposed for the structure and no major changes to the interior configuration of the building are currently planned.

According to a Real Estate Appraisal prepared by Puccio & York, LLC for the Monongalia County BOE, a description of the subject property and improvements is:

· The two-story brick structure is approximately 100 years old and contains approximately 14,927 sq. ft. of space on the first level and 10,456 sq. ft. of space on the second floor. The building has a basement that measures approximately 7,301 sq. ft. of space that was used for classrooms, storage, and furnace room.

· The first floor is divided into classrooms, offices, kitchen, gymnasium, restroom, and lounges. The second level is mainly classrooms.

According to information provided by Mr. Tom Dennison, former Building Supervisor at Sabraton School, and Mark Wise, BOPARC Director:

· BOPARC occupied the building around 1990 but the BOE continued to provide various educational programming until December 2007

· The BOE at a point two years ago had several programs there. One by one they relocated due to the BOE decision to sell the building. Programs included:

- Surgical Technology, Adult Education, Community Schools ceramics and exercise classes, (run through MTEC)

- Even Start, Head Start (3 & 4 year olds) & Early Head Start (run through federal programs at Dorsey School)

- SAFE (a drug and alcohol awareness program), Mon Choice and BIC (both Middle School Alternative Learning Centers) and Textbook Adoption (run through the Central Office)

- Brookhaven Elementary Athletic Association held elementary basketball practices and games in the gymnasium on evening and weekends.

· BOPARC’s programming centered on Senior Recreation Programs including exercise classes, weekly luncheons, craft classes, social functions and the administrative offices for the Senior Recreation Center. BOPARC’s Senior Recreation programming and administrative offices have been relocated to the Wiles Hill Community Center (old Wiles Hill School)

· Community Schools (BOE through MTEC) is still hoping to reach an agreement with the Berean Baptist Church on retaining a portion of the basement for its ceramics program (approximately 5% - 10% of the building)

· The Berean Baptist Church iss looking to work out an agreement for elementary basketball usage of the facility’s gymnasium.

According to the Purchase Agreement provided by the petitioner, the following reversion clause has been included in the property’s conveyance:

“…If the property ceases to be used for charitable or other community-related purposes within the first five (5) years of the transfer by Deed of conveyance, Purchaser [Berean Southern Baptist Church] will convey the property to the Florida Baptist Convention (“Convention”), if requested by the Convention. If the Convention does not make use of the property for charitable or other community-related purposes within six (6) months after conveyance to the Convention and does not continue to use the property for charitable or other community-related purposes for the remainder of the first five (5) years from the date of transfer by Deed of conveyance from Seller [The Board of Education of the County of Monongalia] to Purchaser, title will revert to the Seller without consideration or any further obligation to the Seller…”

Addendum B of this report includes related Planning & Zoning Code provisions.

Parking

The Planning & Zoning Code does not provide clear guidance for calculating the minimum number of parking spaces for the reuse of closed schools and churches. As such, determining the presence of sufficient parking appears to be left to the discretion of the Board.

In April 2007, the Board approved a reuse of the old Jerome School using the parking standard associated with multi-family dwellings. The proposed reuse of the Sabraton School is not a single use but the combination of a “Church or Place of Worship” (one-fourth of the structure) and a “Community Center” (three-fourths of the structure). The petitioner indicated that the portion used for the worship area will include approximately 70-80 folding chairs for people attending worship services.

The following points attempt to demonstrate that strict interpretation of Table 1365.04.01 “Minimum Off-street Parking Requirements” would arguably result in the overdevelopment of parking:

· According to the Real Estate Appraisal prepared by Puccio & York, LLC, the gross floor area of the structure appears to be approximately 32,684 ft². Under the petitioner’s ¼ worship area and ¾ community center area scenario, a strict interpretation of would require:

- 136 parking spaces for the 8,171 ft² used as a worship assembly area that does not include fixed seating [1 space per 60 square feet of the main assembly where no fixed seats are used]; AND,

- At least 74 spaces for the 24,513 ft² used for the “Community Center” use, which does not include parking required for employees [3 spaces per 1,000 square feet of GFA and 1 space per employee].

· If the seating for the worship area were fixed (i.e. bolted pews), then the minimum parking would be at least 20 parking spaces for the “Church or Place of Worship” use. This represents a significant difference between the alternate calculation methods.

· The structure includes an approximate 3,750 ft² gymnasium used primarily by a youth basketball league for a portion of the year.

· The structure enjoys wide hallways and spacious common areas, which must be included when calculating minimum parking requirements based on gross floor area but do not appear, under the current interior configuration, to contribute to the need for additional parking.

· Parking demand for both uses will have peak times that may or may not overlap during certain days of the week and certain periods of the year.

There appears to be approximately 45 parking spaces available on Parcels 28 and 29 (see Addendum A for reference). Parcel 20 is a large tract where additional parking could be developed if necessary. In speaking with BOE and BOPARC officials, the availability of parking has presented a challenge at times. However, the number and level of community center-type services will significantly decrease with the relocation of BOE and BOPARC programming.

Pastor G. Lindell Smith of 755 Powell Avenue was present to represent the petitioner. He stated that the church presently has 65 members, which breaks down to 45 adults and 20 children. Brookhaven Basketball League holds their games at the facility. The Board of Education is still holding some of their projects there. Ceramics, basketball and dance classes will continue to be held there. Most of the building will be a community center. Computer classes are held at the facility on Wednesdays; bible study on Tuesdays and Thursdays. They are presently working with the Vo Tech to hold any of their overflow activities. Smith advised that under the Board of Education standards, it has to be used as a community center for a maximum of 5 years. After that time, it is up to the Pastor to determine any development. His Church Board has not specifically stated it, but they plan to keep it as a community center. Services are held in the first room on the right as you enter the building. In the event there is a need for overflow parking, they could gravel the playground area, which they also own. The Fire Marshall has provided their Certificate of Occupancy.

Bossio asked if scheduling more than one event there would be a problem. Smith stated he felt there would not be a problem, but they have not had the building long enough to encounter any scheduling problems.

Bossio also asked if the playground could be turned into a parking area now. Smith stated he wouldn’t want to do that now. Stated there had been no parking problems in the past. The parking lot across from Listravia Avenue is also used for overflow parking.

Bossio then opened the public comment portion of the meeting. There was no one speaking in favor of the petition.

In favor: none.

In opposition:

Dave Flight of 104 Dug Hill Road stated that he has no problem with the use of the building, but would have a problem using the playground as a parking lot. The playground is in a flood plain and that situation was never dealt with by the BOE. The sewer there no is a temporary fix. Raw sewage has run into the creek. When it rain the parking lot would become very muddy. The only access to it is off Dug Hill Road. Bossio asked Flight is directly affected by this problem. Flight feels someone should take care of the problem. After the 2003 flood, some of the playground equipment was hanging in the creek. Flight stated MUB has been contacted and there is a temporary fix there. When Flight originally purchased his property, he was told the playground area was deeded to the school as a playground and when the school was no longer there it would revert to the owners of the property.

There being no additional comments, Bossio declared that 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 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.

It is the opinion of the Planning Department that strict interpretation of the minimum parking requirements may impede the reuse of the old Sabraton School regardless of contemplated use types. In evaluating the proposed reuse, it appears prudent to strike a balance between the need for adequate parking with the age and cultural significance of the structure. In terms of the nature of proposed uses and associated parking demand, the present reuse proposal appears to be very similar to the structure’s occupancy over the past ± 15 years. Further, the site includes a large adjacent tract where additional parking could be developed if necessary. Staff recommends that the Board exercise reasonable discretion while retaining the ability to require additional parking at a later time.

As such, Staff concurs with the findings of fact submitted by the petitioner and recommends approval of the conditional use request with the following conditions:

1. That significant interior improvements and/or increases to the gross floor area of the present structure which, in the opinion of the Planning Director, contribute to the need for additional on-site parking beyond that currently present must first be approved by the Board.

2. That occupancy of the structure by uses other than that considered as or directly related to “Church or Place of Worship” and/or “Community Center” uses according to the Planning and Zoning Code must first be approved by the Board (i.e. residential, retail sales, professional services, personal services, etc.).

3. That the Board reserves the right to require the development of additional on-site and/or off-site parking if it later finds that the operation of the “Church or Place of Worship” and/or “Community Center” uses have contributed to traffic and/or parking congestion and/or adversely impacted the preservation and enjoyment of property within the immediate area.

Fletcher stated that he had no working knowledge of previous flooding event and will work with MUB and the City to get more information.

Bossio apologized for not granting Pastor Smith a five-minute rebuttal.

Smith stated that he understood Mr. Flight’s concerns and have been the same for years, but the problems were never addressed. He asked that the Church be given a chance to help correct things once they are in the facility. He was also unaware the sewer lines ran through Dug Hill Road. Smith will check into this as soon as possible.

Finding of Fact #1: The structure has existed for approximately 100 years serving first as a school and later as a community center. The proposed reuse is similar to the educational programming and community center related uses that have occupied the building since the early 1990’s.

Shaffer moved to find in the affirmative. Second by Papandreas. The motion passed unanimously.

Finding of Fact #2: The proposed reuse is similar to the educational programming and community center related uses that have occupied the building since the early 1990’s. No significant interior improvements are proposed that would alter the interior configuration or utilization of the structure. All renovations that may be made must comply with current building and fire codes.

Shaffer moved to find in the affirmative; second by Papandreas. A question was raised as to how this relates to Staff’s recommendation for Findings of Fact #1. Fletcher stated he wanted to give the Board the ability to reevaluate any reuse including the provision of parking. The motion passed unanimously.

Finding of Fact #3: The structure has existed for approximately 100 years. No additions are currently planned that would alter the height or footprint of the existing building.

Papandreas moved to find in the affirmative. Second by Cardoso. The motion unanimously passed.

Finding of Fact #4: The proposed reuse will not result in an increased height or footprint of the existing building.

Shaffer moved to find in the affirmative. Second by Shamberger. The motion passed unanimously.

Finding of Fact #5: No residential units are proposed for the structure and the proposed reuse is similar to the educational programming and community center related uses that have occupied the building since the early 1990’s.

Shaffer moved to find in the affirmative. Second by Papandreas. The motion passed unanimously.

Finding of Fact #6: The proposed reuse will neither increase nor decrease demand for public infrastructure and services that have served the structure’s occupancy since the early 1990’s.

Shaffer moved to find in the affirmative. Second by Papandreas. The motion passed unanimously.

Finding of Fact #7: It is anticipated that the value of the buildings and structures in the surrounding area will be conserved if not enhanced by appropriately reusing a significant and contributing structure.

Papandreas moved to find in the affirmative. Second by Shamberger. The motion passed unanimously.

Finding of Fact #8: The proposed reuse does not represent a significant change to the educational programming and community center related uses that have occupied the building since the early 1990’s.

Shaffer moved to find in the affirmative. Second by Papandreas. The motion passed unanimously.

Shaffer moved to grant conditional use approval for case CU08-04 as requested with staff recommended conditions; second by Cardoso. The motion passed unanimously.

Bossio advised Pastor Smith that the Board’s decision can be appealed to Circuit Court within 30-days and any work undertaken by the petitioner was at their sole financial risk.

B. CU08-05 / Metheny / 121 Lorentz Avenue: Request by Gregg Metheny for conditional use approval from the Planning and Zoning Code, Table 1331.05.01, Permitted Land Uses, as it relates to lodging or rooming house for property located at 121 Lorentz Avenue. Tax Map #20 Parcel #258; an R-2, Single and Two-Family Residential District.

Fletcher read the Staff Report stating that the petitioner seeks conditional use approval for a “Lodging or Rooming House” use at 121 Lorentz Avenue. Currently the structure is registered for a single-family rental unit that contains four (4) bedrooms and does not provide on-site parking. Addendum A of this report illustrates the location of the subject realty.

The use of the structure will change from “Single-family Dwelling” to “Lodging or Rooming House”, which is permitted by conditional use in the R-2 District. Article 1329.02 “Definition of Terms”, a “Lodging or Rooming House” use is considered:

“A building or portion thereof that does not qualify as a one or two-family dwelling, that provides sleeping accommodations for no more than 16 people on a transient or permanent basis, without personal care services, with or without meals, but without separate cooking facilities for individual occupants.”

The Planning & Zoning Code does not provide clear guidance for calculating the minimum number of parking spaces for “Lodging or Rooming House” uses. As such, determining the presence of sufficient parking appears to be left to the discretion of the Board.

According to Article 1365.03 (D) (2):

“For a change in the class or use of a structure or land, the number of additional off-street parking and loading spaces required shall be equal to the number required for the new use, less the number of spaces which would have been required for the previous use if it had been established in conformance with this section; but in no case shall the total number of spaces furnished be required to exceed the minimum required for the new use.”

The following illustrates the minimum off-street parking requirements provided in Table 1365.04.01 of the Planning & Zoning Code for related uses:

· Single-family Dwelling........................................................ 2 parking spaces

· 4-bedroom Multi-family Dwelling.......................................... 2.5 parking spaces

The difference in the minimum parking between the above referenced uses is one (1) space [rounded up in accordance with Article 1365.04 (A) (1)].

The petitioner has assembled several properties within the subject area and is able to utilize surplus parking currently available at 564 First Street, which contains four one-bedroom apartments, eleven (11) off-street parking spaces, and is located within 300 feet of the proposed “Lodging or Rooming House” use.

Because there is no area at the subject location to provide on-site parking, the Board may wish to place a condition, similar to previously approved off-premise parking facilities, in accordance with Article 1365.07 (C):

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.

Fletcher stated that a corrected memorandum from the Fire Department was distributed to the Board prior to the meeting. Instead of “one hour self-closing and self latching bedroom doors and one hour separation in all corridors and stairwells”, it shall be ½ hour. Fletcher distributed a letter from Anna Blanche Baker of 31 Jones Avenue, dated February 2, 2008, in opposition of petitioner’s request.

Greg Metheny, of 2419 Stewartstown Road, was present to address the Board and stated that he has been a landlord in Morgantown for 20 years and presently operates 150 units/300 bedrooms. He is also a safety engineer with fifteen years experience. He is proposing to convert a single-family home into a lodging house. He could have converted it into a duplex instead, but he would then be required to set up another wall and entrance. As a safety engineer, he chose to set it up as a lodging and rooming house. He met with the Fire Marshall and Code Enforcement Office. They support the idea and agree it would be a safer way to proceed. There are presently four individuals living at the residence, 2 of the parties are related. There will be no change in occupancy. It is estimated to be about $3000 to make the necessary changes, $2500 of which will be for the fire alarm system and another $500 to protect the stairwells. Metheny feels this will improve and increase the safety of the tenants there.

Cardoso asked what would be the plan for Metheny if the petition were not approved. He stated he would continue with the same usage. Cardoso questioned the parking for the residence. Metheny stated there is parking on 564 1^st Street.

Papandreas asked how many parking spaces are offered for parking on that hillside that the properties use. Papandreas asked Metheny if the petition is granted, and if parking space is associated with that specific residence, is that a space that is already earmarked for someone else within his rentals. Metheny stated no individual properties have their own parking spaces and to date, he has not had any complaints. He stated if there would be a parking problem, he would consider going to permit parking.

Bossio asked how many parking spaces are available pursuant to the number of bedrooms the properties have. Metheny gave the following information:

Bossio asked if there is a required form for a family occupancy lease. Metheny said there is not, the form has to only be notarized. No form is supplied by the city. Fletcher stated that the Fire Department supports rooming and lodging house uses as this requires the owner to make needed safety modifications. They would also like to get away from family leasing.

Metheny added that if this petition were granted, budgeting would be done for other houses to become rooming and lodging houses. This allows a landlord to maintain occupancy, and it is money well spent.

Shamberger still was concerned with earmarking and identifying parking.

Papandreas stated that there is less parking than bedrooms and looking at the numbers given by Metheny, he has 30 more beds than parking spaces.

Bossio reminded Mr. James Giuliani that outburst or interruptions would not be tolerated and that he would be asked to leave the room if he commented again out of order.

Bossio stated that Code says parking cannot not be more than 300 feet away from the residence; this parcel would be 350 feet. Bossio stated his concern was for parking and congestion in that area. He questioned why, after renting this property for the past four years as a four-bedroom unit, he wanted to change it now.

Metheny said that surprise inspections were made of his properties in that area; to make sure they were not over occupied. He had to produce family occupancy permits. They then started talking about the rooming and lodging as a solution to this problem. The landlord wants to maintain occupancy and for $3000 he can also maintain a safer residence. If this petition is granted, he will come back before the BZA for other properties. He said he would like to see a more streamline process for this if there is no change in occupancy. As a safety engineer, his job is to protect people. If it is shown that this process can be done, he will also show it to the Landlords Association.

Fletcher stated he was not aware of the Fire Department’s requirements for providing lease documents.

Bossio questioned whether the family occupancy leases were on file with anyone once they are signed. Metheny stated they are not.

When asked what Metheny’s timeline was, he stated he would have it scheduled within the next 30 days.

Bossio opened the public comment portion of the meeting.

In Favor:

James Giuliani, of 256 Prarie Avenue, state he was glad that this recommendation was brought to light. It’s been talked about for sometime. This is not a procedure that circumvents the law; there actually is no definition of family under the fire code. If the petition is approved, he believes other landlords will do it too. This will not affect the residential areas of the City, and believes it will be a positive thing for the City.

Against:

Fletcher read the letter from Anna Blanch Baker of 31 Jones Avenue.

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 conditional use by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant. Staff recommends the revisions to the petitioner’s findings of fact for #6 and #8 (deleted matter struck through; new matter underlined)

Should the Board grant said conditional use approval, Staff recommends the following conditions:

1. That the conditional use approval granted herein is specific to the petitioner and may not be transferred.

2. That no more than four (4) occupants may reside within the existing structure.

3. That the petitioner shall maintain compliance with all life safety devices required by the Fire Department as outlined in the attached memo from Jason Quinn, Deputy Fire Marshall, which states that the following must be installed:

a. Fire alarm system

b. One half hour self-closing self-latching bedroom doors

c. Hardwired interconnected smoke detectors with battery back up inside and outside of each bedroom

d. One half hour separation in all corridors and stairwells

4. That the off-site parking facility be encumbered by an easement or similar agreement, to the satisfaction of the Planning Director, which is duly executed and acknowledged and specifies that the land upon which the off-site parking facility is located (564 First Street; Tax Map #20 Parcels #239 & 240) is encumbered by the parking use of the “Lodging or Rooming House” (121 Lorentz Avenue; Tax Map #20 Parcel #258) use for no less than one (1) spaces. That this instrument must bind the use for no less than three-years. That said instrument must be filed with the Planning Department and placed on public record in the Office of the Clerk of the County Commission of Monongalia County, West Virginia. That the Certificate of Occupancy for the subject “Lodging or Rooming House” use shall be contingent upon the continuance of said agreement and encumbrance and should said agreement and encumbrance be annulled for any reason at any time, said Certificate of Occupancy shall be revoked upon written notification by the Planning Director and the use revert to a single-family dwelling. That a valid and current copy of said instrument must be made available at the request of Planning Director

5. That the proposed space has a sign noting the rental unit for which the space is reserved. That such sign is 12 inches wide by 18 inches tall and shall be mounted between three feet and five feet above the finish surface of the parking stalls. That the text on the sign state “This space is reserved for residents of 121 Lorentz Avenue, per City Code 1365.07 (D).”

Finding of Fact #1: Congestion in the streets is not increased, in thatThe home is presently used as a rental dwelling. The one required off street parking space will be on parcels 239 or 240.

Shaffer moved to find in the affirmative; second by Shamberger. The motion passed unanimously.

Finding of Fact #2: Lodging and rooming houses have more stringent requirements than single-family rental dwellings. Overall tenant safety will be improved in relation to basic requirements set forth in one and two family dwellings. Basic safety improvements will include a secondary means of egress from the second floor to be added, the installation of detection, alarm and communication system, and self-closing doors to protect the primary means of egress.

Shamberger moved to find in the affirmative; second by Papandreas. The motion passed unanimously.

Finding of Fact #3: The exterior of the existing structure will not fundamentally change.

Shaffer moved to find in the affirmative; second by Papandreas. The motion passed unanimously.

Finding of Fact #4: The footprint of the existing structure will not change.

Shaffer moved to find in the affirmative; second by Shamberger. The motion passed 4-1 with Papandreas voting no.

Finding of Fact #5: Morgantown building and housing code presently permits 3 unrelated persons to reside in a rental dwelling. As a lodging and rooming house the total number of bedrooms to be rented in this nearly 2000 square foot home is 4. Our position is that many landlords in Morgantown are either renting units illegally with more than 3 persons residing in a single-family home, or have relied on family occupancy leases, and related party agreements to circumvent the housing code. We encourage the city to consider the overall safety of these tenants while allowing landlords in zoning districts permitting lodging and rooming houses, the opportunity to comply with occupancy regulations while dramatically increasing the safety of all tenants residing in these homes.

Shaffer moved to find in the affirmative; second by Shamberger. The motion passed 4-1 with Papandreas voting no.

Finding of Fact #6: “The structure presently exists. as a rental dwelling and could accommodate a family of 5 or 6. Our purpose of the home is to provide safe housing for college students. WVU has expanded the ability of the downtown campus to accommodate more students with their 2010 master plan.” There immediate area appears to be adequately served by existing public infrastructure and services.

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

Finding of Fact #7: Property values would actually increase in that investment housing and their corresponding values are based on rental incomes. Permitting a 4 person dwelling will increase overall income value associated with this home. In addition, a safer home will exist resulting in a higher demand for this rental dwelling from the population it is serving. Long-term surplus income would promote increased investment into the structure including and not limited to exterior cosmetic maintenance and improvements.

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

Finding of Fact #8: “~~The lot/land is zoned for the intended use – lodging and rooming house~~.” The proposed use and tenancy of the subject site appear to be similar to that of surrounding properties.

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

Shaffer moved to grant conditional use approval for case CU08-05 as requested with conditions recommended by Staff; second by Cardoso. The motion passed 4-1 with Papandreas voting no.

Bossio advised Metheny that the Board’s decision can be appealed to Circuit Court within 30 days and any work completed during that time is at the petitioner’s sole financial risk.

C. CU08-06 / Giuliani / 700 Weaver Street: Request by Laura and James Giuliani for conditional use approval from the Planning and Zoning Code, Article 1365.07, Off-site parking facilities for property located at 700 Weaver Street. Tax Map #26 Parcel #414; a B-2, Service Business District.

Fletcher read the Staff Report stating that the petitioner seeks to add an additional apartment unit at 700 Weaver Street. Addendum A of this report illustrates the location of the apartment dwelling. Currently the multi-family structure has four (4) registered rental units and does not include on-site parking. The applicant proposes to add one three-bedroom unit and provide parking off-site on property the petitioner owns.

The use of the structure will not change from “Multi-family Dwelling”, which is permitted by-right in the B-2 District. The petitioner was instructed that to add an additional dwelling unit, they would have to provide parking for the new unit in accordance with to Article 1365.03 (D) (1):

“For the enlargement of a structure or for the expansion of a use of structure or land there shall be required only the number of additional off-street parking and loading spaces as would be required if such enlargement or expansion were a separate new structure or use.”

The minimum parking requirement for a “Dwelling, Multi-family,” as set forth in Table 1365.04.01, is two (2) spaces for the proposed three-bedroom unit. The petitioner originally requested that both required parking spaces be provided at 708 Snider Street. However, the existing duplex at this address, which is comprised of one two-bedroom and one three-bedroom, requires four (4) parking spaces; the 708 Snider Street site only contains five (5) parking spaces.

Staff suggested and the petitioner agreed to request off-site parking on Parcel #443 (Allen Street) instead since this site currently contains twenty-one (21) parking spaces and no structure.

Because there is no area at the 700 Weaver site to provide on-site parking, the petitioner must obtain conditional use approval for off-site parking in accordance with Article 1365.07:

Article 1365.07 OFF-SITE PARKING FACILITIES

(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.

Addendum A of this report also illustrates that the subject sites are within 300 feet of each other.

Article 1365.07 (C) stipulates that:

In December 2006, the Board granted a similar conditional use approval to Smith Rentals, LLC for an additional dwelling unit at 361/365 Brockway Avenue where the off-site parking was provided at 55 Kingwood Street. Under this case, a three-year lease arrangement was deemed acceptable as it coincided with the three-year rental registration period.

Likewise, in October 2003, the Board granted off-site parking approval to D & M Real Estate for a “Boarding and Lodging” use at 373 Brockway Avenue where parking was provided at 55 Kingwood Street. This approval included a four-year lease arrangement.

James Giuliani, of 256 Prairie Avenue, was present to address the Board and stated that he presently owns four two bedroom units with no parking on 770 Weaver street; 774 Weaver Street has additional parking spaces that could be utilized. The requested off site parking is B-2 and the other properties are R-2. He is above the ratio of parking that is needed at 774 Weaver Street. If this petition is turned down, he can, if necessary, rent two spaces from Chico Dairy.

Bossio opened the public comment portion of the meeting.

In favor:

Fletcher stated that the Planning Department received an email from Tom Wiley supporting Giuliani’s request.

Against:

None

There being not further comment, Bossio declared the public comment portion of the meeting closed.

Fletcher continued reading the Staff Report stating that it is the opinion of the Planning Department that off-site facilities must be adequately secured as intended by the Planning & Zoning Code.

The Board must determine whether the proposed request meets the standard criteria for conditional use by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant.

Should the Board grant said conditional use approval, Staff recommends the following conditions:

1. That the off-site parking facility be encumbered by an easement or similar agreement, to the satisfaction of the Planning Director, which is duly executed and acknowledged and specifies that the land upon which the off-site parking facility is located (Allen Street, Tax Map #26 Parcel #452) is encumbered by the parking use of the subject rental unit for no less than two (2) spaces. That this instrument must bind the use for no less than three-years. That said instrument must be filed with the Planning Department and placed on public record in the Office of the Clerk of the County Commission of Monongalia County, West Virginia. That the Certificate of Occupancy for the subject dwelling space shall be contingent upon the continuance of said agreement and encumbrance and should said agreement and encumbrance be annulled for any reason at any time, said Certificate of Occupancy shall be revoked upon written notification by the Planning Director. That a valid and current copy of said instrument must be made available at the request of Planning Director.

2. That the proposed spaces shall have signs noting the rental unit for which the spaces are reserved. That such signage shall be 12 inches wide by 18 inches tall and shall be mounted between three feet and five feet above the finish surface of the parking stalls. That the text on the sign state “This space is reserved for residents of located at [address assigned by City Engineer] only, per City Code 1365.07 (D).”

3. That the conditional use approval granted herein is specific to the petitioner and may not be transferred.

Fletcher stated that Staff recommends the following revisions to the petitioner’s findings of fact (deleted matter struck through; new matter underlined)

Finding of Fact #1: ~~“The parking spaces already exist. No new parking lots. 5 spaces; 1,2; 2-700 Weaver; 708 Snider St; 3,4,5.”~~ The proposed off-site parking location currently exists.

Finding of Fact #2: ~~“Not evaluating any building. Building is conforming only parking is nonconforming and already exists.”~~ The building will be required to meet all city building and fire code regulations and standards and the proposed off-site parking location currently exists.

Finding of Fact #3: “~~Owner provides parking with lighting on building and street lights. Areas all well lit~~. Parking area is currently exists; no additional stalls will be added.”

Finding of Fact #4: “~~Off site parking. Actually the reason this is being proposed is to save green space (corner of Richwood and Snider St.).”~~ The proposed off-site parking area currently exists; no additional spaces will be created.

Finding of Fact #5: ~~“Adding 3 bedrooms or commercial; 3 baths ill not influence or congest area proposed space and already exists as well as the parking.”~~ Renovations and improvements will meet occupancy requirements of the building and fire codes; sufficient off-site parking currently exists.

Finding of Fact #6: “~~Actually our improvements will only enhance the neighborhood. New sidewalks, protecting valuable green space (park like setting).”~~ There immediate area appears to be adequately served by existing public infrastructure and services.

Finding of Fact #7: ~~“Building now under-utilized empty space improvements to existing building/property will increase value to other properties in the area density should be encouraged in student neighborhoods.”~~ The proposed off-site parking area currently exists, which is an amenity not provided for many of the structures within the immediate area.

Finding of Fact #8: ~~“We conserve valuable green space and use existing parking from adjacent lot (off site lot). Owners control own all property in area (as per map).”~~ The multi-family residential structure, which is situated adjacent to the downtown campus, is consistent with the use and tenancy of surrounding properties.

Shaffer moved to find in the affirmative for all 8 Findings of Fact with Staff’s recommended revisions; second by Papandreas. The motion passed unanimously.

Shaffer then moved to grant conditional use approval for case CU08-07 as requested with Staff’s recommended conditions; second by Shamberger. The motion passed unanimously.

D. CU08-07 / Giuliani / East Prospect Street: Request by Laura and James Giuliani for conditional use approval from the Planning and Zoning Code, Table 1331.05.01, Permitted Land Uses, as it relates to multi-family dwellings in the R-2 District for property located on East Prospect Street. Tax Map #26 Parcel #464; an R-2, Single and Two-Family Residential District.

Fletcher read the Staff Report stating that the applicant seeks to add an additional two-bedroom unit to an existing duplex at 451 East Prospect. Table 1331.05.01 “Permitted Land Use Table” of the Planning & Zoning Code provides that a “Multi-family Dwelling” is a Conditional Use in the R-2 District. Addendum A of this report illustrates the location of the subject site.

The surrounding R-2 properties contain a concentration of rental residential units within duplexes, triplexes, and structures with non-conforming occupancy. The area has experienced a transition to higher densities due primarily to its proximity to the downtown campus.

Although the Planning & Zoning Code only requires parking for the additional dwelling unit, the applicant has stated that ten (10) spaces are currently available on the subject site. The additional 2-bedroom unit requires a minimum of two spaces. The following table illustrates the minimum parking requirement for multi-family dwellings (see Table 1365.04.01) to demonstrate that sufficient parking appears to be available for the existing units and the proposed additional unit:

Standard		Existing Units	Min. req’d parking	Proposed Units	Min. req’d parking
# of bedrooms	Min. # of spaces	Existing Units	Min. req’d parking	Proposed Units	Min. req’d parking
1-bedroom unit	1	–	–	–
2-bedroom unit	1.5	–	–	1	2
3-bedroom unit	2	2	4	2	4
Total					6

James Giuliani, of 256 Prarie Avenue, was present to address the Board and stated that the subject property is at East Prospect and Richwood. Any problems with sewer and storm water have been taken care of. Would be adding another 750 square feet and convert it to a 3 bedroom. The density is already there. Sprinkler system has been installed. Two residents presently live in the 3-bedroom property. Two parking spaces are available in the front of the property and 8 are off of East Prospect.

Bossio asked the size of the parking spaces provided. Giuliani stated they are regulation 9 x 20.

Bossio opened the public comment portion of the meeting. There being no comment, either in favor or against, Bossio declared the public comment portion of the meeting closed.

Fletcher continued reading the Staff Report stating that it is the opinion of the Planning Department that the preferred approach to increased residential densities in strategic areas is through redevelopment. In several areas adjacent to West Virginia University’s campus, structures originally constructed for single-family occupancy have been transformed into overcrowded rental units with limited maintenance and unkempt open spaces. The petitioner has assembled several properties within the subject area and shared intentions of redeveloping same in the future. Because the petitioner can provide sufficient on-site parking for all three units within the subject structure, an amenity not provided by many surrounding uses, Staff recommends approval of the request.

The Board of Zoning Appeals 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 findings of fact (deleted matter struck through; new matter underlined):

Finding of Fact #1 – ~~“Adding 2-bedroom apartment to existing 2 three-bedroom apartments (total 6 bedrooms now). The parking 10 spaces already is on site.”~~ There is sufficient parking on-site for the proposed additional unit and the existing units.

Finding of Fact #2 – “The building ~~unit~~ will be required to meet all city building and fire code regulations and standards.”

Finding of Fact #3 – ~~“Existing structure.”~~ The additional dwelling unit will be contained within the existing structure thereby not resulting in an increase in height or footprint.”

Finding of Fact #4 – ~~“Unused attic space – existing structure only added two (2) additional residents in what is a student neighborhood.”~~ Sufficient parking is provided to meet the needs of the proposed multi-family dwelling use.

Finding of Fact #5 – “~~Same as #4.”~~ Renovations and improvements will meet occupancy requirements of the building and fire codes; sufficient parking is provided to meet the needs of the proposed multi-family dwelling use.

Finding of Fact #6 – ~~“As explained parking already exist and were adding 2 people to density in area.”~~ There immediate area appears to be adequately served by existing public infrastructure and services.

Finding of Fact #7 – ~~“Yes. It is the appropriate use of the building and land.”~~ A multi-family residential structure, which is situated adjacent to the downtown campus, is consistent with the use and tenancy of surrounding properties.

Finding of Fact #8 – “R-2 is medium density surrounded by B-2. it is a student neighborhood and it should be encouraged to have greater density in ‘student districts’ as opposed to in our R-1 and R-1A district neighborhood residential.” A multi-family residential structure, which is situated adjacent to the downtown campus, is consistent with the use and tenancy of surrounding properties.

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

Shaffer moved to grant conditional use approval for case CU08-07 as requested; second by Shamberger. The motion unanimously passed.

Bossio advised Giuliani that the Board’s decision can be appealed to Circuit Court within 30 days and that any work completed during that period would be at the sole financial risk of the petitioner.

E. V08-13 / DeVault Brothers, LLC / Inglewood Boulevard: Request by Devault Brothers, LLC for variance relief from Article 1347.04 (A) (4) of the Planning & Zoning Code as it relates to minimum rear setback in the R-3, Multi-family Residential District for property located on Inglewood Boulevard. Tax Map #11 Parcel #112; an R-3, Multi-Family Residential District.

Fletcher read the Staff Report stating that the petitioner seeks to raze a depilated rental unit and construct a multi-family dwelling containing three (3) one-bedroom units and two (2) two-bedroom units. Addendum A of this report illustrates the location of the site and a photograph of the subject area.

The proposed site plan demonstrates conformance with the front and side setback standards. However, the proposed building and covered stairs encroach into the minimum required rear setback of twenty (20) feet requiring a fifteen (15) variance. The existing structure has a 1.4 foot to a zero rear setback and an inadequate side setback.

The applicant considered renovating the existing structure, but due to its condition and unusual footprint, has decided to construct a new structure.

Tyler DeVault, of Rt. 8 Box 48 Fairmont, was present to address the Board and stated that the location is in a high density area. They were unable to obtain the property located behind the subject property as suggested by the Planning Department, so they are asking for a 15 foot variance.

Bossio asked why their architect did not design a building that would fit into that space. DeVault stated they wanted to have one parking spot for each bed. Doing that would not be maximizing the total property. There will be two 2 bedroom units and three 3-bedroom units making a total of 7 beds. All units will be under one roof.

Bossio asked why one of the units couldn’t be taken off; shrink the footprint of the building and go up. DeVault stated the building costs would be too expensive.

Fletcher then referred the Board to the sketch of the property showing the topography. The corner of the property would be difficult to do anything with. Site triangle visibility is also an issue at the corner of the property as expressed by the City Engineer during the Technical Review meeting.

Bossio opened the public comment portion of the meeting.

In Favor:

Rod Morgano / 450 Cypress. Not speaking for or against but stated as a property owner for locations on East Everly and Inglewood; he would like the same fair treatment that is being offered to DeVault if the petition is approved. His properties are within 200 feet of the DeVault property; this is a dense area.

Against:

None

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

Fletcher continued reading the Staff Report stating that the Board must determine whether the proposed request meets the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant. Staff recommends revisions to the petitioner’s Findings of Fact (deleted matter struck through; new matter underlined):

Finding of Fact #1: “This lot has a unique configuration that does not permit compliance with the setback requirements when attempting to maximize housing units for this predominantly student rental area.”

Shaffer moved to find in the affirmative; second by Papandreas. The motion passed unanimously.

Finding of Fact #2: ~~“The property does not permit construction of the type and number of student housing units per lot with close proximity (I.E.-walking distance) to medical center, law and engineering schools.”~~ The trend towards higher density within close proximity to the Evansdale and Medical Center Campuses appears to require flexibility for smaller unusually shaped lots where new construction is proposed.

Shaffer moved to find in the affirmative; second by Papandreas. The motion passed unanimously.

Finding of Fact #3: “The addition will not affect surrounding property due to the fact it will be a greater rear setback than the current structure. See attach plat #1 existing structure.”

Shaffer moved to find in the affirmative; second by Papandreas. The motion passed unanimously.

Finding of Fact #4: “It will allow the property owner to build student housing that is similar to existing surrounding units and is otherwise in “compliance” with the intended ~~subdivision/area~~ use.”

Shamberger moved to find in the affirmative; second by Shaffer. The motion unanimously passed.

Shaffer moved to grant variance approval for case V08-13 as requested; second by Papandreas. The motion unanimously passed.

Bossio advised the petitioner that the Board’s decision could be appealed to Circuit Court with 30 days and that any work completed during that period was at the sole financial risk of the petitioner.

Fletcher advised the Board that case V08-14 / KJB LLC / 345 High Street had been withdrawn by the applicant. Fletcher also advised the Board that cases CU08-08 and V08-15 thru and included V08-19 had been moved to the Board’s March agenda.

V. OTHER BUSINESS

A. Public Comments – None.

Shaffer wished to thank staff for his support for the BZA at a recent Planning Commission meeting regarding a recent editorial.

B. Staff Comments – None.

IV. ADJOURNMENT

The meeting adjourned at 9:20 PM.