BOARD
OF ZONING APPEALS
6:30 PM June
18, 2008 City Council
Chambers
MEMBERS PRESENT: Bernie Bossio, Tom Shamberger, George Papandreas
MEMBERS ABSENT: Leanne Cardoso, Jim Shaffer
STAFF: Chris Fletcher, Planning Director; John Butterworth, Planning Intern
I. CALLTO ORDER and ROLL CALL:
Bernie Bossio called the meeting to
order at 6:30 P.M.
II. MATTERS
OF BUSINESS:
A. Approval of May 21, 2008 minutes:
Shamberger noted that he was not in
attendance at the May 21, 2008 meeting.
Because a quorum of the members in attendance at the May 21, 2008
meeting was not present, Papandreas moved to table approval of the minutes
until next month’s meeting; seconded by Bossio. The motion passed unanimously.
III. OLD
BUSINESS: None
A. V08-27
/ Tennant /
Butterworth read the Staff Report stating that the petitioner seeks to
construct a covered 4’ X 4’ porch on the side of an existing single-family
residential structure at
As such, the petitioner must obtain
a five-foot variance for the covered porch and a three-foot variance for the
uncovered stairs. The petitioner stated
in his application that a 4’ X 4’ porch previously existing in the same
location but was removed a couple of years ago at the request of the City’s
Building Code Officials due to condition.
The petitioner was present to speak
on behalf of his application.
George
Tennant of
Bossio questioned when the porch
last existed on this property. Tennant
advised he purchased the house approximately 30 years ago and the porch has not
been there for the last 7 to 8 years. Given
that fact, Bossio asked why is he putting it up now. Tennant stated money was an issue, and he’s
now making improvements to the property, and will also be putting up vinyl
siding, and now wants to build what was originally there. The adjacent property is a vacant lot owned by
Bob Goodwin. Tennant has not contacted
him to advise what his plans were because they have not gotten along in the
past.
Bossio opened the public comment portion of
the meeting, asking for comments in favor of the petition. There being none, he
asked for comments against.
Bob
Goodwin of
Butterworth stated that a letter was
received by Julie Grace Hall of
Bossio gave Tennant a five-minute rebuttal. Tennant stated he does have a copy of the
survey done by H & J Survey that was submitted with his variance
application, which shows that the porch does not encroach onto Goodwin’s
property. He did remove the survey
stakes on the front of the property when cutting the grass, but the stakes on the
lower back line were still in place.
Papandreas questioned why Tennant would go to the trouble of having a
survey done then remove the stakes. He
also stated he was concerned because Goodwin questioned the accuracy of the
survey.
Tennant stated that the construction of the porch frame was done but the
project has been stopped to wait for the Board’s decision on the variance. The only remaining elements are the steps,
railings, and replacement of the old metal awning.
Papandreas asked why he would build the porch before receiving approval
from the BZA.
Tennant stated Code Enforcement instructed him to build it. He also stated this porch is not smaller, as
stated by Goodwin, it is the same size as the one that previously existed.
Bossio asked if four feet gets right
to the property line, what is needed to make it only 3 feet.
Tennant advised he would not have a
problem with that, and would speak with his contractor. Tennant noted that a similar variance within
the neighborhood was approved in 1996.
There being not additional comments, Bossio declared the public comment
portion of the hearing closed and asked for Staff’s recommendations.
Butterworth stated that staff
recommends the following revisions to the petitioner’s Findings of Fact:
Finding of
Fact #1 – There are
exceptional or extraordinary circumstances or conditions applicable to this
property or to the intended use, that generally do not apply to other
properties or uses in the same vicinity, because:
The door from the kitchen exists and
previously opened onto an identically sized porch to what is proposed. The location of the existing door and the
narrowness of the lot provide no other alternative of reestablishing a
secondary means of ingress/egress from the kitchen without significant
renovation, redesign of kitchen layout, and cost.
Shamberger asked if 4 feet was reasonable or could the walkway be 36
inches. Bossio stated his concern was
going to the property line. Anytime a
structure is built close to or on a property line, it can become an issue later
on.
Papandreas noted that he believed three feet would be better. He then questioned Tennant if a roof was put
on, would Goodwin suffer from any water run off. Tennant noted that no roof was proposed; only
the reinstallation of the metal awning that was once there.
Fletcher noted that Staff’s recommended conditions could be revised to
address a one-foot setback and the awning.
Papandreas moved to find in the affirmative as recommended by Staff; seconded
by Shamberger. The motion passed unanimously.
Finding of
Fact #2 – The
variance is necessary for the preservation and enjoyment of a substantial
property right that is possessed by other properties in the same vicinity and
zoning district, but which denied to this property, because:
The addition of the proposed porch
gives an added emergency exit, as well as easier access to other parts of the
property. In November 1996, the BZA
granted a similar side yard variance to Virginia Garlow to extend to within one
(1) foot of the property line for a covered porch.
Papandreas moved to find in the
affirmative as recommended Staff; seconded by Shamberger. The motion passed unanimously.
Findings
of Fact #3 – The
granting of this variance will not be harmful to the public welfare and will
not harm property or improvements in the vicinity and zoning district in which
the subject property is located, because:
The proposed porch will be very
small, minimally invasive, and only used as a secondary means of
ingress/egress, which can not adversely impact neighboring properties or
improvements.
Shamberger suggested removing the
words “minimally invasive” so that the finding of fact is: “The proposed porch will be very small and
only used as a secondary means of ingress/egress, which can not adversely
impact neighboring properties or improvements.”
Fletcher noted that a condition
could be included to address his concerns for “minimally invasive.”
Shamberger moved to find in the affirmative as recommended by Staff;
seconded by Papandreas. The motion passed unanimously.
Findings
of Fact #4 – The
granting of this variance will not alter the land-use characteristics of the
vicinity and zoning district, or diminish the market value of adjacent
properties, or increase traffic congestion on public streets, because:
The proposed porch should increase
value because of added aesthetic value and providing a secondary means of
ingress/egress. The proposed porch can
not improve or diminish traffic congestion.
Shamberger moved to find in the affirmative
as recommended by Staff; seconded by Papandreas. The motion passed unanimously.
Fletcher stated that based on the Board’s
discussion, the following conditions are recommended in granting a variance:
1.
That
the subject side porch may not extend closer than one-foot from the side parcel
boundary; and,
2.
Except
a metal, fabric, or similar awning, the subject side porch may not be covered
or enclosed. Such permitted awning may
not extend beyond the side parcel boundary.
Shamberger moved to approve the
variance with Staff’s recommended conditions; seconded by Papandreas. The motion passed unanimously.
Bossio advised Tennant that the
decision of the BZA can be appealed to Circuit Court within 30 days and that
any work completed in relation to the variance would be at Tennant’s own
financial risk.
B. V08-09
/ Foss /
Butterworth read the Staff Report
stating that the petitioner seeks to construct an uncovered porch and stairs on
the side of an existing two-family residential structure at
As such, the proposed
porch and stairs requires a 1.5-foot variance.
The petitioner indicated in his
application that the porch and stairs are necessary to “comply with modern
safety standards;” and, to “remedy the safety violation.” Staff consulted with the City’s Code
Enforcement Department and learned that the structure’s Letter of Compliance is
current and that no violations have been issued on the matter. The photographs in Addendum A illustrate that
each of the two existing side-by-side dwelling units currently have front
doors.
The existing structure is considered
nonconforming as it exceeds the maximum lot coverage and encroaches into the
minimum front, side (northeast), and rear setbacks for the R-3 District.
It is the opinion of Planning
Department that the size of the proposed porch exceeds what is normally needed
for a simple means of ingress/egress. It
appears that the porch is designed more to provide an outdoor deck amenity for
the enjoyment of residents, which is customary in residential areas regardless
of density. Because the neighboring
structures are situated relatively close with minimal side yards, Staff is
concerned that the porch/deck may change the character of the side yard area
and potentially impact the enjoyment and quality of life of the neighboring
property.
A preferred design alternative would
be the construction of a porch that is sized more as a landing than a deck with
a longer sidewalk or path connecting the proposed stairs to the steps leading
to
Staff presented this design option
to the petitioner and learned that, because he is most interested in providing
a secondary ingress/egress as a responsible landlord, he would consider the
modification. He also noted that he
merely wants to provide the same secondary ingress/egress that exists on the
opposite side leading to the alley and that an exit door currently exists where
the porch is proposed but has been covered on the inside of the unit.
As such, the Staff suggests that the
following two design alternatives be considered by the petitioner and/or the
Board:
Alternative 1 – Construct the 5’ X
10’ deck as proposed but include a wall, fence, or similar privacy barrier at
least six feet in height on the side and rear of the deck for the purpose of
buffering the neighboring property from the use of the deck.
Alternative 2 – Reduce the area of
the deck by at least half, not include a privacy barrier, and increase the
length of the sidewalk/path connecting the two sets of steps leading to
The petitioner was present to speak
on behalf of his request.
Jeffrey
Voss of 802 Alpine Street
stated he believes a 5 x 10 structure would be a decent size for residents to
use. His first concern is a safety
issue. The previous owner of the building
took out a set of stairs leaving an existing door that’s about 12 feet off the
ground. He stated his discussion with
the Planning Director was enlightening and he now thinks a 3 x 6 porch would
suffice and he would not be opposed to that.
After a brief discussion with the
Board, Foss withdrew his variance request and stated he would build something
that did not extend so far.
Fletcher advised Foss that he would
contact him in the morning to expedite his permit process.
C. CU08-09 – Monongalia Friends Meeting /
Fletcher read the staff report stating
that the applicant seeks conditional use approval as provided in Table
1331.05.01 “Permitted Land Use Table” of the Planning & Zoning Code to
establish a “Church, Places of Worship” in an R-1A District. Addendum
A of this report illustrates the location of the subject site. Concerning the provision of off-street
parking, Table 1365.04.01 “Minimum Off-Street Parking Requirements” provides: “1 space per 4 fixed seats plus 1 space per
60 square feet of the main assembly where no fixed seats are used.”
The petitioner has indicated that
the main assembly area will not include fixed seating. The submitted site plan illustrates a main
assembly area of 14’ X 24’ or 336 ft2.
As such, a minimum of six (6) parking spaces must be provided. The parking area illustrated on the submitted
site plan is 40’ X 100’, which should provide sufficient room for a minimum of
10 parking spaces.
A related minor subdivision petition
(MNS08-12 / Tarantini /
Keith
Garbutt of
Bossio asked how long they have been
organized in
Bossio opened the public comment
portion of the meeting, asking for anyone wishing to speak in favor of the
petition.
Theresa
Nacaratti of
Josephine
Tarantini of 656 E. Brockway stated that the house has been for sale for over a year and it requires
a lot of upkeep. She would rather sell the property to a church than students.
Edith
Lucci of
Bossio then asked for anyone wishing
to speak against the petition.
Richard
Lucas of
Bossio asked Lucas why he felt, if the rental property was not well
taken care of, what makes him think the same may not happen to this property if
it remained a single family dwelling. Lucas
stated Code Enforcement has been around the area several times, but no
complaints were ever filed against that rental property. Bossio encouraged Lucas to contact the City
regarding the rental.
Mike
Glowacky of
Fletcher advised the BZA that a letter from Richard and Diane Lucas was
received by the Planning Office in opposition, but they appeared at the meeting
and spoke in opposition. A letter in
opposition was received from Pam Cook,
Fletcher stated to clarify the petitioner’s request, the Monongalia
Friends Meeting was not seeking a variance or zoning reclassification of the
subject property. The request was a
conditional use approval that is specific to the property and the applicant. If the church no longer used the property as a
place of worship or if the property were sold, it would revert back to a
single-family house. Any other
conditional use, even another group seeking to continue the place of worship
use, would have to come back before the BZA for a conditional use approval.
Bossio granted Garbutt a five-minute rebuttal. Garbutt stated that people might be
overstating their worries regarding parking. The alley is narrow, but not steep. There is unrestricted on-street parking in
front of the building. There would not
be a lot of traffic on Sunday morning and the area residents would find the
Monongalia Friends Meeting would be good neighbors. They are quiet and would take good care of the
property just as they did for 15 years at the Jerome Park site. During that time there, they had no complaints
or code violations of any kind.
There being not addition comment, Bossio declared the public comment
portion of the hearing closed and asked for Staff’s recommendations.
Fletcher stated that Staff
recommends the following revisions to the petitioner’s findings of fact.
Finding of
Fact #1 – Congestion in the streets is not
increased, in that:
The street is not currently congested.
Worship services will be primarily on Sunday mornings, when congestion
is not a problem. Adequate onsite
parking will be provided.
Shamberger moved to find in the affirmative as recommended by Staff;
seconded by Papandreas, who then questioned if the issue of parking could be
reviewed if it became an issue later.
Fletcher reminded the Board that a similar concern was raised for the
reuse of the old
Bossio called for the question and the motion to find in the affirmative
as recommended by staff passed unanimously.
Finding of
Fact #2 – Safety
from fire, panic and other danger is not jeopardized, in that:
Meetings do not involve large
congregation of persons. Electrical and
safety issues will be reduced with upgrading of systems as required by the
Building and Fire Codes.
Shamberger moved to find in the
affirmative as recommended by Staff; seconded by by Papandreas. The motion passed unanimously.
Finding of
Fact #3 – Provisions of adequate light and
air is not disturbed, in that:
No new structures or expansions or
alterations to the building footprint are proposed.
Papandreas moved to find in the affirmative as recommended by Staff;
seconded by Shamberger. The motion
passed unanimously.
Finding of
Fact #4 –
Overcrowding of land does not result, in that:
No new structures or expansions or
alterations to the building footprint are proposed.
Shamberger moved to accept as modified by Staff. Second by Papandreas.
The motion passed unanimously.
Findings
of Fact #5 – Undue
congestion of population is not created, in that:
Meetings on Sunday mornings typically involve fewer than 10 vehicles and
fewer than 50 persons. Parking onsite
will be provided (40 x 100 feet.) The
proposed off-street parking area exceeds the required one space per 60 sq. ft.
of main assembly area. (340 sq. ft. ÷ 60 sq. ft. = 6 parking spaces)
Papandreas moved to find in the affirmative as recommended by Staff; seconded
by Shamberger. The motion passed
unanimously.
Findings
of Fact #6 –
Granting this request will not create inadequate provision of transportation,
water, sewage, schools, parks, or other public requirements, in that:
No new structures and no large concentrations of persons or vehicles
will result from approval of this conditional use request. There will be no change in building
footprint. The proposed conditional use
will not require improvements to or the expansion of public utilities that
already serve the existing structure and surrounding area.
Shamberger moved to find in the
affirmative as recommended by Staff; seconded by Papandreas. The motion passed unanimously.
Findings of Fact #7 – Value of
buildings will be conserved, in that:
No major structural changes or
additions are proposed. Electrical and
safety upgrades will add value to the property.
Shamberger moved to find in the
affirmative as recommended by Staff; seconded by Papandreas. The motion passed unanimously.
Findings
of Fact #8 – The
most appropriate use of land is encouraged, in that:
No major change in land use is proposed.
The structure’s external appearance will not change (from the existing
single-family dwelling). Churches and
places of worship have long been viewed as assets to residential neighborhoods.
Papandreas moved to find in the affirmative as recommended by Staff;
seconded by Shamberger. The motion passed
unanimously.
Fletcher stated that Staff
recommends approval with the following conditions:
1.
That
a parking lot layout and landscaping plan be submitted to and approved by the
Planning Director, prior to occupancy permitting, that demonstrates compliance
with the applicable minimum parking, design, accessible space, and landscaping
requirements set forth in Articles 1365 and 1367 of the Planning & Zoning
Code.
2.
That
a Sign Plan shall be submitted to and approved by the Planning Director prior
to installation of same; may not exceed sixteen square feet in area; may not
include changeable copy; and, may not be internally or externally illuminated.
3.
That
Parcels 110, or portion thereof as a result of the subdivision of same through
the Planning Commission’s action on MNS08-12 / Tarantini / East Brockway, and
110.1 of Tax Map 35 shall be combined through either a subdivision approved by
the Planning Commission or as provided in Article 1363.02 (B) (3) of the
Planning & Zoning Code.
4.
That
the conditional use approval granted herein may not be transferred.
5.
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” use has contributed to traffic and/or parking congestion
and/or adversely impacted the preservation and enjoyment of property within the
immediate area.
NOTE: The Board agreed in concept
to condition #5 and that said condition would be stated in the notification to
the petitioner and the minutes of the meeting.
Fletcher advised the Board that the
Staff Report contemplated a condition relating to accessibility for the
structure. After consulting with the
City’s Building Code officials, it was understood that their review of the petitioner’s
occupancy permit would address the structure’s accessibility issues. Fletcher also noted that requiring
accessibility for the structure may be outside the authority of the City’s
Planning & Zoning Code.
Shamberger moved to approve CU08-09 and
include the four conditions provided in the Staff Report as well as a fifth
condition addressing the Board’s ability to review the parking situation later as
was provided for the old
Bossio advised the applicant that the
Board’s decision may be appealed to Circuit Court within 30 days and that any
work done during this period would be at the sole risk of the petitioner.
D. CU08-10 / Babilonia /
Butterworth read the Staff Report
stating that the commercial space previously occupied by State Electric Supply
at
The petitioner, Mr. Babilonia, is
seeking conditional use approval for a “Restaurant, Private Club” use at the
subject site. The petitioner has
submitted the following exhibits, which are attached hereto: Business
description; Proposed Menu; Resume for Eddie Babilonia (owner); Resume for
Patrick MacFarlane (executive chef); and, Seating Plan.
According to the submitted
application exhibits, Mr. Babilonia is the Owner and General Manager for Casa
D’ Amici’s on High Street and has been so since 1994. He has also owned and operated two other
locations of Casa D’ Amici’s from 1998 through 2001 in both Cheat Lake and
Suncrest. The Planning Department has
not confirmed the information provided in the attached resumes.
The business description provided by
the petitioner states that the proposed hours of operation are 4:00 PM to 1:00
AM daily; that, once the staff is fully assembled and trained, hours will be
11:00 AM to 1:00 AM Monday through Saturday and 10:00 AM to 1:00 AM Sundays;
and, after 11:00 PM, a limited menu will be served.
The “Restaurant, Private Wine” and
“Tavern” uses are permitted by-right in the B-4 District. The petitioner seeks to sell liquor in
addition to beer and wine, which changes the use classification to “Restaurant,
Private Club.” Addendum B of this report
contains related excerpts from the Planning & Zoning Code [Article 1331.06
(27)].
Bossio stated he presently owns a
building that is leased by Babilonia. He
has no interest whatsoever with what transpires this evening but if the
petitioner feels there is a reason he should recuse himself, he will do so. Sunny Kramer, representing Mr. Babilonia, stated
he did not wish Bossio to recuse himself.
Papandreas also stated he has a
business relationship with Babilonia’s father for a property on High
Street. He will also recuse himself if
necessary. Kramer stated he saw no
reason for Papandreas to recuse himself.
Joe Panico, one of the property
owners, was present to speak on behalf of the request and stated he applied for
and received site plan approval for condos to be built on an adjacent lot. The
restaurant is the first step of this project.
The timeframe for the restaurant to open is this August or September.
Bossio opened the public comment
portion of the meeting asking for those wishing to speak in favor of the
petition.
Anthony
Colasante of 10 Riverridge Estates stated that is is co-owner of the building and believes that
a vital part of the development is an upscale restaurant and pub and should
spruce up that part of downtown.
Sunny
Kramer of 13 Rysland Place stated that he will be the Restaurant Manager and that an
Executive Chef has been hired who is very qualified. The establishment will feature upscale dining
that will not be matched in the
Bossio questioned whether or not
valet parking would be available. Kramer stated parking will be available in
both parking garages nearby, but valet parking may be an option in the future.
With no one speaking in opposition
of the petition, Bossio declared the public comment portion of the meeting closed
and asked for Staff’s recommendation.
Butterworth stated that the Board of Zoning Appeals must first determine whether or not it
will waive the one-year “bona fide restaurant” requirement [Article 1331.06
(27)(c)] prior to the petitioner obtaining a liquor license from the West
Virginia Alcohol Beverage Control Commission.
The Board has granted waivers to the one-year “bona fide restaurant”
requirement for similar requests. Should
the Board waive said requirement, it 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 number 1 and 3 thru 8.
Finding of
Fact #1 –
Congestion in the streets is not increased, in that:
There is access to the municipal
parking garage on
Shamberger moved to find in the
affirmative as recommended by Staff; seconded by Papandreas. The motion passed unanimously.
Finding of
Fact #2 – Safety from fire, panic, and other
danger is not jeopardized, in that:
The building has numerous exits and
will conform to fire and building regulations.
Papandreas moved to find in the
affirmative as submitted by Staff; seconded by Shamberger. The motion passed unanimously.
Finding of
Fact #3 – Provision
of adequate light and air is not disturbed, in that:
The building is existing; structural
changes will enhance lighting and air regulations will be properly met.”
Papandreas moved to find in the
affirmative as recommended by Staff; seconded by Shamberger. The motion passed unanimously.
Finding of
Fact #4 –
Overcrowding of land does not result, in that:
The building is existing; the occupancy level established by the Fire
Marshal will be enforced and conformity to zoning regulations in the B-4
district will be adhered to.
Papandreas moved to find in the
affirmative as recommended by Staff; seconded by Shamberger. The motion passed unanimously.
Finding of
Fact #5 – Undue congestion of population is
not created, in that:
The building was used as commercial
space by the previous tenant.
Papandreas moved to find in the affirmative as recommended by Staff;
seconded by Shamberger. The motion
passed unanimously.
Finding of
Fact #6 – Granting
this request will not create inadequate provision of transportation, water,
sewage, schools, parks, or other public requirements, in that:
The conditional use request will
neither increase nor decrease demand for said public infrastructure and
services already needed to serve the previous use and occupancy.
Papandreas moved to find in the affirmative as recommended by Staff;
seconded by Shamberger. The motion
passed unanimously.
Finding of
Fact #7 – Value of
buildings will be conserved, in that:
The building will be upgraded by remodeling the space into a restaurant
and should preserve and enhance the historic relevance of the building and
surrounding areas and will be maintained at all times.
Papandreas moved to find in the
affirmative as recommended by Staff; seconded by Shamberger. The motion passed unanimously.
Finding of
Fact #8 – The most
appropriate use of land is encouraged, in that:
It is a commercial business in the
B-4 district and should enhance the atmosphere in downtown
Papandreas moved to find in the
affirmative as recommended by Staff; seconded by Shamberger. The motion passed unanimously.
Butterworth stated that should the
Board waive the one-year “bona fide restaurant” requirement and grant approval
of the subject conditional use petition, Staff recommends that the following
conditions be included:
1.
That
the petitioner must maintain compliance with all supplemental regulations set
forth in Article 1331.06 (27) of the Planning and Zoning Code. That the establishment shall not serve liquor,
including wine, later than 1:00 a.m., except on New Year's Eve;
2.
That
the petitioner must obtain permitting as a “restaurant” from the Monongalia
County Health Department under the Monongalia
County Clean Indoor Air Regulations;
3.
That
any exterior building modifications (i.e. façade, awning, etc) shall be
reviewed and approved by the Downtown Design Review Committee and the Planning
Director prior to building permit issuance for same;
4.
That
any regulated signage shall be reviewed and approved by the Downtown Design
Review Committee and the Planning Director prior to building permit issuance
for same; and,
5.
That
the conditional use approval granted herein may not be transferred.
Shamberger moved to approve
conditional use CU08-10 with the conditions recommended by Staff; seconded by
Papandreas as long as by seconding the motion, he was saying the one-year
requirement was being waived. Fletcher advised it was the motion to approve
included the one-year waiver. The motion
passed unanimously.
Bossio advised the petitioner that
the Board’s decision could be appealed to Circuit Court within 30 days and that
nay work done during this period would be at the sole financial risk of the
petitioner.
A. Public Comment – None
B.
Staff Comments:
Fletcher thanked the Board for
allowing Butterworth to staff a portion of the meeting. Butterworth is a graduate student in WVU’s
Public Administration program and is very interested in pursuing a career in
urban planning. Butterworth has interned
with the Planning Department for about a year and will participate in the
Department’s internship program until his graduation. Bossio commended Butterworth and the Planning
Department for it internship program.
Papandreas stated it had been
brought to his attention that a local business on High Street, that received a
conditional use permit, may not be operating properly. Fletcher reminded the Board that enforcement
issues are generally not discussed during open meetings but he would be
available after the meeting to discuss the matter with Board members.
The meeting was adjourned at 8:25 PM.