MORGANTOWN BOARD OF ZONING APPEALS

MORGANTOWN BOARD OF ZONING APPEALS

Minutes

6:30 PM May 21, 2008 City Council Chambers

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

MEMBERS ABSENT: Tom Shamberger

STAFF: Christopher Fletcher, AICP

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

II. MATTERS OF BUSINESS

A. Approval of March 13, 2008 meeting. Papandreas moved to approve the minutes as submitted; seconded by Cardoso. The motion passed unanimously.

III. OLD BUSINESS: None

IV. NEW BUSINESS

A. V08-21 / HTM/Double G Properties / 327 Green Street: Request by HTM/Double G Properties for variance approval from the Planning and Zoning Code Article 1335.04, Setbacks in an R-1A District for property located at 327 Green Street. Tax Map #36 Parcel #188; an R-1A, Single-Family Residential District.

Fletcher read the Staff Report stating that the petitioner seeks to construct an awning on the side of an existing three-unit residential structure at 327 Green Street. Addendum A of this report illustrates the location of the site and a photograph of the subject area. Addendum B contains a rendering that was prepared by Staff to illustrate what the awning may look like in relation to the building, sidewalk, and adjacent alley. Based on consultation with the City Engineering Department, it appears that the sidewalk is located on the petitioner’s property and not within the public right-of-way.

Article 1335.04 (B) “Setbacks” provides that:

“On a corner lot, the front lot line shall be the lot line having the shortest dimension along the street right-of-way line. The required side yard setback on the side facing a shall be one and one-half (1.5) times the normal side setback requirement.”

Article1335.05 (A) (1) “Encroachments into Setbacks” provides that:

“Fire escapes, chimneys, cornices, awnings, canopies, eaves, sills, pilasters, lintels, gutters or other similar features may extend into a setback a distance not exceeding three (3) feet, except that such features shall not extend closer than three (3) feet from the property line.”

The proposed site plan demonstrates conformance with the front and rear setback standards. However, because the applicant is proposing a zero-foot setback, the proposed awning encroaches into the minimum required side setback of 7.5 feet with an allowable three-foot encroachment.

Doug Shephard / 906 Stewart Place was present to represent the petition and explained that the property is maintained by HTM and what he is proposing is not new. Homes located in this area have setbacks that encroach into other people’s property. When the building was resided, the original header was found. It is his intention to take the property back to its original state. An awning is also needed so the occupants of the residence will get relief from the weather. The sidewalk is in a zero plain and water is going into the building’s sub-structure.

Papandreas asked the petitioner how far out the awning would project from the building. Shephard stated it would go to the edge of the sidewalk, approximately 5 feet.

Shaffer asked the petitioner to explain the vertical support and how it would work. Shephard stated 4 x 4’s would be set into concrete for structural support; the vertical support comes in 1 ½ to 2 feet from the edge of the sidewalk/alley. The sidewalk is four foot. The header height above the door is 8 feet, the same dimension they are shooting for now.

Cardoso asked if a smaller awning might be more practical. Shephard answered the goal is to divert water away from the structure. In order to do that, the awning needs to go to the edge of the sidewalk.

Bossio stated that he was concerned of U-haul or other trucks driving down that alley and the box of the trucks sit beyond the cab of the truck, which could run into the awning. Shephard said that the turning radius for trucks there would not be encumbered, and there would be more than enough room for those types of trucks to pass through. Bossio was concerned that since the unit is a triplex rental dwelling, moving trucks would possibly be coming through there. Bossio asked if a three-foot awning could give the same type of relief the petitioner is looking for. Shephard stated it would not since there would be 2 feet of sidewalk carrying water. His goal is to get the water out of there. The sidewalk is not pitched. Shephard stated there would be other ways to divert the water, i.e., spouting, but his goal is to attain an aesthetic balance. The awning size requested is the same size as was previously on the residence.

Shephard explained he is requesting a five-foot awning is that many homes in that area have large deep front porches, and he wants to mimic that look.

Bossio opened the public comment portion of the meeting, asking if anyone wished to speak in favor or against the petition. There being none, Bossio closed the public comment portion of the hearing as asked for the staff’s recommendations.

Fletcher read the staff recommendations 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.

Fletcher 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:

“327 Green St. sits on a corner property bordered by Watts Alley. The original design of the property did include an awning over that side of the building (header was discovered during recent residing work). The awning is needed to help divert the water off the concrete sidewalk that surrounds the home. Currently, the water drains into the substructure of the home. Other homes in the area are surrounded by lawns and do not border alleys and thus they do not require a concrete sidewalk next to the structure. Additionally, the awning is needed to aesthetically ‘”balance” the home; it will make the home much more attractive.”

Shaffer moved to find in the affirmative for Finding of Fact #1. The motion died for lack of a second.

Fletcher advised the Board that the petitioner has asked for a zero-setback variance and that the Board could consider and grant a variance less than the requested zero-setback variance.

Shaffer stated he has less of a problem with the awning than he does with the vertical supports.

Papandreas stated his concerns were the same, and that he would be more comfortable with a three-foot awning with no vertical component.

Shaffer stated that if the petitioner’s concern is to move water, than he should be looking at guttering.

Bossio stated he did not want to postpone this item until the next BZA meeting and asked the Board what could be done so a compromise may be made.

Fletcher suggested that the petitioner be asked if he would accept a three-foot awning with no vertical supports. If so, than the Board could consider granting a two-foot variance.

Shaffer questioned whether or not the applicant could orally change his petition request.

Shephard asked if a setback variance be needed if he used a standard over the door awning.

Bossio advised he would not, to which Shephard replied that would be the route he would pursue. Shephard stated that he feels there is more than enough room for vehicle clearance and would just withdraw his request.

Fletcher advised that a two-foot variance would provide the petitioner with options to either move forward with a reduced awning depth or to pursue the over-the-door awning.

Shephard agreed and requested the Board to consider the two-foot variance request which would allow a three-foot awning. The Board accepted his request.

Fletcher stated that, based on the discussion, Staff recommends approval of the variance with the following revised Findings of Fact and revised conditions:

Recommended 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:

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 structure on Tax Map 36, Parcel 186 appears to be situated on a 25 X 126 lot, which doesn’t appear to meet R-1A requirements for frontage or side setbacks. This house is located two houses to the right of 327 Green St. The granting of this variance will allow the petitioner to redevelop an awning that may have once been a part of the structure.”

Finding 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 petitioner is requesting a one-foot variance to attach an awning to the building, that will result in a more attractive building, a comfortable building for its occupants, and higher property values for the area. The awning will not impede pedestrian or automobile traffic, and will substantially improve quality of life for the residents of the domicile.”

Finding 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 granting of this variance will not affect traffic/congestion or affect the land use of the zoning area. Granting this variance will improve property values and improve quality of living for the residents of the home and of the area.”

Recommended Conditions:

1. That the awning may not extend closer than two feet (2’) from the side property line along Watts Street; and,

2. That the subject awning be cantilevered, or similar structural design used, so that vertical supports are not used thereby mitigating potential impediments to vehicular and pedestrian movements beneath or around the subject awning.

After the Board reviewed all changes to the Findings of Fact and conditions recommended by Fletcher, Shaffer moved to find in the affirmative for all Findings of Fact, as read; seconded by Papandreas. The motion passed unanimously.

Shaffer moved to grant a two-foot variance for V08-21 with Staff’s recommended revised conditions; seconded by Papandreas. The motion passed unanimously.

Bossio advised Mr. Shephard that the Board’s decision could be appealed to Circuit Court within 30 days of its decision; any work done during this time was at the sole financial risk of the petitioner.

B. V08-22 / HTM/Double G Properties / 327 Green Street: Request by HTM/Double G Properties for variance approval from the Planning and Zoning Code Appendix A as it relates to maximum lot coverage in an R-1A District for property located at 327 Green Street. Tax Map #36 Parcel #188; an R-1A, Single-Family Residential District.

Fletcher advised the Board that this petition had been withdrawn by the applicant after the legal notice had been advertised. No action is required by the Board.

C. V08-23 / Carbacio / 250 High Street: Request by Nick Carbacio for variance approval from the Planning and Zoning Code, Article 1369.07 (I) Wall Sign, Nonresidential for property located at 250 High Street. Tax Map #26A Parcel #133; a B-4, General Business District.

Fletcher read the Staff Report stating that In January 2008, the Board of Zoning Appeals approved a “Restaurant, Private Club” conditional for the subject establishment. The Board included six (6) conditions with its approval. One condition specifically addressed the issue of signage:

“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.”

Fletcher stated that the petitioner erected an awning sign prior to obtaining a building permit or submitting the proposed signage to the Planning Department for review by the Downtown Design Review Committee. Mr. Carbacio was cited by the City’s Code Enforcement Division, found guilty by the Municipal Court, and fined the maximum $500.

Article 1369.07 (I) (1) of the Planning & Zoning Code provides that the maximum area of permitted wall signs in the B-4 District is 0.4 square feet for each linear foot of storefront. The linear width of the subject storefront is 37 feet 10 inches, which results in a maximum allowable sign area of 15.1 ft².

The signage on the erected awning is 27.5 ft². Therefore, the applicant must obtain a variance of 12.4 ft² to keep the signage erected prior to approval.

The Downtown Design Review Committee recommends approval of the subject variance petition.

Nick Carbacio / 421 Stout St., Clarksburg, WV was present to represent the petition and stated that at the time he had the new awning professionally made, he was unaware of the City’s regulation. He stated he took down the existing awning, had the new awning made to the same size and dimensions. Actually, the lettering was the same size as that of the “Mercury” awning.

Shaffer questioned Carbacio as to why, when he was made aware of the list of conditions that needed to be followed when he first appeared before the Board, he did not go through the proper channels at that time. Carbacio stated that, although not an excuse, he had a lot going on in opening the business and ordering the awning from a business he had worked with in the past. He simply overlooked the condition.

Bossio opened the public comment portion of the meeting asking if anyone wished to speak in favor of or against the request. There being none, Bossio closed the public comment portion of the hearing and asked for Staff’s recommendations.

Fletcher stated that one of the stated purposes within the Planning & Zoning Code for sign regulations is to:

“…encourage the effective use of signs as a means of communication in the City, to maintain and enhance the pleasing look of the City, which attracts to the City continued economic investment; to preserve Morgantown as a community that is attractive to business, to residents and to visitors…” [Article 1369.01 (A)]

Size restrictions are one of several means to accomplish this policy objective.

The Board of Zoning Appeals 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.

Fletcher stated that Staff recommends the following revisions to the petitioner’s “Findings of Fact”

“The location of this restaurant is outside the core restaurant area along High Street between Willey Street and Walnut Street. As such, the variance to exceed the maximum signage area is necessary to communicate the location of the establishment to potential customers. The erected awning extends the length of the storefront, which provides a rather large background for the signage portion. Messaging within the maximum area standard on such a large background may be difficult for customers to recognize.”

Shaffer moved to find in the affirmative for Finding of Fact #1 as recommended by Staff: seconded by. The motion passed unanimously,

“Other properties within the vicinity have wall or awning signs that exceed the standard of the .4 square feet per linear foot of frontage. The Board has also granted similar variances in the B-4 District to exceed the maximum sign area standard.”

Shaffer moved to find in the affirmative for Finding of Fact #2, as recommended by Staff; seconded by Papandreas. The motion passed unanimously.

Shaffer then moved to dispense with the reading of the remaining Findings of Fact and find in the affirmative for Findings of Fact #3 and #4 as recommended by Staff; seconded by Cardoso. The motion passed unanimously.

NOTE: The revised Findings of Fact for #3 and #4 included in the Staff Report were:

Finding of Fact #3 – “The erected awning extends the length of the storefront, which provides shelter along the public sidewalk and a rather large background for the signage portion. Messaging within the maximum area standard on such a large background may be difficult for customers to recognize. The erected awning sign appears to conform with and contribute to the existing signage pattern, properties, and improvements along High Street.”
Finding of Fact #4 – “The erected awning sign will not contribute to traffic congestion and will in no way alter the land use characteristics or diminish the market value of adjacent properties.”

Fletcher stated that Staff recommends that, should the Board grant variance approval, the following conditions be included:

1. That the copy be restricted to the name and logo of the business; and,

2. That no additional permanent signage for the subject establishment may be erected at this location.

Shaffer moved to grant variance approval for V08-23 as requested with the conditions recommended by Staff; seconded by Papandreas. The motion passed unanimously.

Bossio advised Mr. Carbacio that the Board’s decision could be appealed to Circuit Court within 30 days.

D. V08-24 / Daniels / 428 Cedar Street: Request by J. Carter Daniels, Jr. for variance approval from the Planning and Zoning Code as it relates to Article 1331.08, Accessory Structures and Uses in Residential Districts at 428 Cedar Street. Tax Map #36 Parcel #33; an R-1A, Single-Family Residential District.

Fletcher read the Staff Report stating that the petitioner seeks to construct a 6’ X 5’ accessory storage building near the southwest corner of his property at 428 Cedar Street three (3) feet from the rear property line. Addendum A of this report illustrates the location of the subject site.

Article 1331.08 (a) (3) of the Planning & Zoning Code provides that:

“Accessory structures, if detached from a principal structure, shall not be located closer than five feet to the side or rear property line.”

As such, the petitioner must obtain a two-foot variance to encroach into the required minimum rear setback for the accessory structure.

The following information has been submitted by the petitioner:

· Written consent from the adjacent property owner, Mr. Robert De Antonio of 117 Euclid Avenue, to place the structure within 3 feet of the property line.

· Photographic documentation of similar accessory structures situated close to or at the property lines.

J. Carter Daniels / 428 Cedar Street was present to represent the petition and stated that he wanted to amend his variance request from a two-foot variance to a 14-inch variance. He explained that he changed the design from 5’ x 6’ to 4’ x7’, so he only needs a 14 inch variance. He expressed thanks to Lisa Mardis, Dave Purkey, and Mike Stone for their assistance. He stated that as a former City Manager, he was pleased with the service and assistance he received.

Fletcher proceeded with staff’s recommendations. The Board of Zoning Appeals 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.

Fletcher stated that Staff recommends approval of the variance with the following revisions to the petitioner’s Findings of Fact:

Shaffer moved to dispense with the reading of the Findings of Fact and find in the affirmative as revised by Staff; second by Papandreas. The motion passed unanimously.

NOTE: The revised Findings of Fact for #1 thru #4 included in the Staff Report were:

Finding of Fact #1 – Many of the other properties in the same vicinity have detached permanent accessory buildings, such as garages, which are situated right on their side and rear lot lines. More simply, these buildings have zero setbacks from both their side and rear property lines. The petitioner is requesting a variance to allow a nonpermanent structure with a three foot setback from the rear property line which would be in alignment with the setback of the existing home.
Finding of Fact #2 – Other homes in this South Park neighborhood have permanent detached accessory buildings that have little or no setback from their property lines. These structures are existing, nonconforming structures. The petitioner proposes a smaller, nonpermanent utility building that would have a setback of three feet from the rear property line. This would be in keeping with the characteristics and appearance of the neighborhood.
Finding of Fact #3 – Granting this variance would actually and significantly benefit properties and homes in the neighborhood because the nonpermanent structure proposed will replace an unsightly but conforming, nonpermanent utility building. This variance request is strictly limited to placement of the proposed Amish-built, nonpermanent structure according to the site plan devised by Triad Engineering.
Finding of Fact #4 – Granting this variance will not in any way alter the land-use characteristics of the neighborhood, its vicinity, or it’s zoning district. The market value of both adjacent properties and other proximate homes would be materially enhanced if this variance is granted because the historic nature of the aged stone pavers would be preserved while accommodating a smaller, less obtrusive, and more attractive utility building. There will be no traffic impact of any kind created by granting this variance.

Shaffer moved to grant a 14-inch variance for V08-24 as requested approval; seconded by Cardoso. The motion passed unanimously.

Bossio advised Mr. Daniels that the Board’s decision could be appealed to Circuit Court within 30 days of its decision; any work done during this time was at the sole financial risk of the petitioner.

E. V08-25 / Semler / 400 High Street: Request by William A. Semler for variance approval from the Planning and Zoning Code, Article 1369.07 (I) Wall Sign, Nonresidential for property located at 400 High Street. Tax Map #26 Parcel #89; a B-4, General Business District.

Fletcher read the Staff Report stating that William A. Semler, owner of SUBWAY®, seeks to remove the current yellow awning and replace the signage with a non-illuminated 20 ft² sign. Addendum A of this report illustrates the location of the subject site.

Article 1369.07 (I) (1) of the Planning & Zoning Code provides that the maximum area of permitted wall signs in the B-4 District is 0.4 square feet for each linear foot of storefront. The linear width of the subject storefront is 32 feet and the maximum amount of allowable signage is 12.8 ft². Therefore, the applicant is requesting a variance of 7.2 ft².

The Downtown Design Review Committee has reviewed the proposed sign and has recommended approval.

William A. Semler / 33 Meadowview Lane was present to represent that petition and stated that the old yellow Subway sign is somewhat unattractive, and Subway mandated another sign be installed. The façade will have two four screen awnings over each window with a lighter yellow Subway sign above. Subway mandates a lighted sign, but the City says that can’t be done. Subway is willing to do whatever is necessary to accommodate the City.

Papandreas asked if the sign could be backlit like Cold Stone’s sign. He feels this would look nicer.

Semler questioned the Board as to why Jimmy John’s sign is lit. Bossio advised their reason for appearing before the BZA dealt with size and was not a lighting issue.

Fletcher stated that the Planning Department would review previous signage lighting allowances in the B-4 District and that Mr. Semler’s lighting options would be consistent with other approved signs in the B-4 District.

Fletcher advised that one of the stated purposes within the Planning & Zoning Code for sign regulations is to:

Size restrictions are one of several means to accomplish this policy objective.

Fletcher stated that Staff recommends the following revisions to the petitioner’s findings of fact:

Shaffer moved to dispense with the readings of the Findings of Fact 1 through 4 and find in the affirmative as revised by Staff; seconded by Papandreas. The motion passed unanimously.

NOTE: The revised Findings of Fact for #1 thru #4 included in the Staff Report were:

Finding of Fact #1 – The business location fronts on the corner of High Street and Fayette Street but only has one door facing the corner. The proposed sign will be smaller than the current sign and thereby reduce nonconformity.
Finding of Fact #2 – Other businesses within the vicinity have larger wall signs than what is permitted, some of which have obtained similar variances, including Jimmy Johns and Coombs Flowers.
Finding of Fact #3 – The proposed sign will be smaller than the current sign and thereby reduce nonconformity. The variance will result in new signage and the removal of an awning that, due to its age and condition, detracts from the building’s façade. As such, the replacement of the obsolete awning sign will contribute to the properties and improvements with the vicinity.
Finding of Fact #4 – The sign will appeal more to the downtown motif. The sign will not lower market values, change the character of retail within vicinity, or contribute to increased traffic. The existing land use will not change.

Fletcher stated that Staff recommends the following conditions be included in granting a variance:

1. That sign copy be restricted to the name and logo of the business; and,

2. That no additional permanent signage for the subject establishment may be erected at this location.

Shaffer moved to grant the variance for V08-25 as requested with the provision that Semler work with the Planning Department concerning lighting and that Staff’s recommended conditions be included in the approval; seconded by Cardoso. The motion passed unanimously.

Bossio advised Mr. Semler that the Board’s decision could be appealed to Circuit Court within 30 days of its decision; any work done during this time was at the sole financial risk of the petitioner.

F. V08-26 / Taylor / 865 E. St. John Street: Request by C. Reeves Taylor for variance approval from the Planning and Zoning Code, Article 1339.07 (A), Performance Standards as it relates to residential construction conforming in street orientation to adjacent structures for property located at 865 East St. John Street. Tax Map #11 Parcel #106 & 107; an R-3, Multi-Family Residential District.

Fletcher advised the Board that this petition had been withdrawn by the applicant after the legal notice had been advertised. No action is required by the Board.

V. OTHER BUSINESS

A. Public Comments – None.

B. Staff Comments – None.

Papandreas suggested that when sign issues are being looked at, there may need to be a change from .4 to a .7 or .75. The downtown businesses represent a place to shop and entice people to patronize. The outside of those businesses need to draw people in.

Shaffer suggested that the Downtown Review Team take on that issue.

Fletcher stated that the Planning Department identified this concern in it’s most recent annual report and that sign regulations need to be reviewed and recommended changes be presented to the Planning Commission.

VI. ADJOURNMENT – The meeting adjourned at 7:45 PM.