BOARD OF ZONING APPEALS

Minutes

6:30 PM October 15, 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 AND ROLL CALL: Bossio called the meeting to order at 6:30 PM

II. MATTERS OF BUSINESS:

A. Approval of September 23, 2008 minutes. Shamberger moved to approve the September 23, 2008 minutes as submitted; seconded by Papandreas. The motion carried unanimously.

III. OLD BUSINESS: None

IV. NEW BUSINESS:

A. V08-35 / Morgantown DOE / WVU Research Park. Request by Morgantown DOE for variance approval from the Planning and Zoning Code, Article 1353.05 (A) as it relates to building height for property located on Tact #2 of the WVU Research Park. Tax Map #59 Parcel #1; a B-5, Shopping Center District.

Shamberger advised that although he works in the Finance Department at WVU, his position has no involvement in negotiations or decisions relating to the Research Park and therefore believes that no conflict of interest exists that should exclude his participation in the matter at hand. Bossio asked the remaining members of the Board if they believed Shamberger should participate in the matter or recuse himself. All agreed that a conflict did not appear to exist and that Shamberger should participate.

Fletcher read the Staff Report stating that the petitioner obtained site plan approval by the Planning Commission on September 11, 2008 for a Development of Significant Impact to construct a 58,990 s.f. one-story building in the West Virginia University Research Park. For more information concerning the project’s development program, please refer to the Staff Report for S08-16.III, which is attached hereto.

In granting its approval, the Planning Commission included, among others, the following condition:

“That should final architectural and engineering plans submitted with the building permit application not demonstrate conformance with the B-5 minimum height standard of 25 feet, than variance approval must be obtained prior to building permit issuance for the building.”

Addendum A of this report contains an enlarged clip of the petitioner’s West Elevation which illustrates the building’s proposed height of 22 feet, 8 inches confirming the need for a variance of 2 feet, 4 inches prior to building permit issuance.

The generally accepted rationale of setting minimum building height requirements is to address one or more of the following fundamentals:

· Promote vertical density over land consumptive, one-story, “big-box” development patterns.

· Promote vertical mixing of uses.

· Create or preserve human-scaled “building enclosure”, which is the relationship of street and buildings that defines urban space. Analysis of and concern for enclosure and urban space is important for achieving a desired aesthetic relating to scale, comfort, character, and use of the street as a public room.

These policy objectives do not appear appropriate for the Morgantown DOE site because:

· Vertical residential uses are often incompatible with research, laboratory, and archival storage related uses.

· The Morgantown DOE development must meet strict U.S. General Services Administration (GSA) security standards that do not permit mixed-uses for this particular governmental occupancy and use.

· Archival storage facilities often require the use of forklift equipment, which is often not practical in multi-level structures.

· “Building enclosure” was not a planned development pattern for the West Virginia Research Park given the desired type and scale of development and the topography of the entire development.

Fletcher noted that the applicant’s representative was present.

Grant Gramstead of 4601 Chablis Way, Birmingham, AL stated that he is the agent for Morgantown DOE, LLC and also had no objection to Shamberger participating. He advised that the building includes an architectural treatment to avoid the appearance of a flat box building but the design is still 2 feet 4 inches below the minimum requirement. He believes that the selected design treatment respects the spirit of the requirement. He referenced the colored rendering provided and stated he believes the building has visual interest.

Bossio asked for public comments either in favor or against the petition. There being none, he closed the public comment portion of the hearing and asked for Staff’s recommendations.

Fletcher stated that staff concurs with the Findings of Fact submitted by the petitioner and recommends approval.

Papandreas moved to find in the affirmative for each of the Findings of Fact as submitted by the applicant; seconded by Shamberger. The motion passed unanimously.

NOTE: Findings of Fact for #1, #2, #3 and #4 submitted by the petitioner were:

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:

“This building is currently zoned B-5 which is “shopping center district” per Article 1353 of the Morgntown zoning ordinance, however, the building is located in the WVU Research park and is being used for office and storage space. The research park will not have building and structures similar to that of typical shopping center district but more oriented to research development & office, which would not normally carry a minimum height requirement.”

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:

“Due to location within the WVU Research Park and the B-5 zone other similar zones with office and storage as allowable uses to not have a minimum height requirement only a maximum height requirement.”

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:

“There will be no adverse affects to the public welfare, and will not harm vicinity property or improvements. The request is a minor adjustment from 25’0” to 22’8” and will not be visible from the site. Additionally the city requires the roof top equipment to be screened so that height will not be affected by this issue.”

Finding of Fact #4. - 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 use of this building will be similar to the use of other buildings in the WVU Research Park and the impact will not diminish the market value further, nor does it have any bearing on the traffic congestion along public streets.”

Papandreas moved for approval of V08-35 as presented in the packet; seconded by Cardoso. The motion carried unanimously.

Bossio advised Gramstead that the Board’s decision could be appealed to Circuit Court within 30 days and that any work done during this time is at the sole financial risk of the applicant.

B. V08-36 / AES Credit Union / 133 Van Voorhis Road. Request by AES Credit Union for variance approval from the Planning and Zoning Code, Article 1369 as it relates to signs for property located at 1133 Van Voorhis Road. Tax Map #6 Parcel #44 & 48; a B-2, Service Business District.

Fletcher stated the applicant requested the matter be tabled. Shamberger moved to table V08-36 at applicant’s request; seconded by Papandreas. The motion passed unanimously.

C. CU08-16 / Nagy & Callen / 453 Pine Street. Request by Nagy & Callen for conditional use approval from the Planning and Zoning Code, Table 1331.05.01, Permitted Land Uses as it relates to Dwelling, Mulit-family in an R-2 District for property and Article 1337.04 as it relates to setbacks for property located at 453 Pine Street. Tax Map #29 Parcels #108-109; an R-2, Single and Two-Family Residential District.

Fletcher stated the applicant requested the matter be tabled. Papandreas moved to table CU08-16 at applicant’s request; seconded by Shamberger. The motion passed unanimously.

D. CU08-15 / The Baldwin Group, LLC / 472 Baird Street. Request by The Baldwin Group, LLC for conditional use approval from the Planning and Zoning Code, Article 1365.07, Off-Site Parking Facilities for property located 472 Baird Street and 505-509 Locust Avenue; Tax Map #26 Parcels #282, 283, 284, 287; a B-2, Service Business District.

Fletcher read the Staff report stating that the petitioner seeks to develop an eleven unit multi-family structure. As a part of this development, the petitioner seeks conditional use approval to develop three (3) off-site parking spaces on self-owned adjoining property that is less than 300-foot distance requirement. For an illustration of the site location, please refer to Addendum A of this report.

Article 1365.07 “Off-site Parking Facilities” of the Planning & Zoning Code provides that:

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

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

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

Article 1365.07 (C) provides that:

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

Fletcher advised that Mr. James Baldwin was in attendance to present his request.

James Baldwin, II of 472 Baird Street stated that this conditional use request is strictly for parking. His proposed development cannot meet the minimum parking requirement in front of the building. He owns all adjacent property on the backside of the building, and this property would be used to meet the minimum parking requirement.

Bossio asked for public comments either in favor or against the petition. There being none, he closed the public comment portion of the hearing and asked for Staff’s recommendations.

Fletcher stated should the Board find in the affirmative for each of the findings of fact and approve the petitioner’s conditional use petition, Staff recommended the following conditions:

That the proposal be reviewed and approved by the Technical Review Committee.
That the development meet all handicap parking requirements to the satisfaction of the City Engineer.
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 (505-509 Locust Avenue, Tax Map #26 Parcel #282) 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.
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).”
That the conditional use approval granted herein is specific to the petitioner and may not be transferred. He also stated that this rental regulation is for a three year period and on the 3 year inspection, this issue would be the first one looked at. Either the applicant, or any other owner, would have to show proof ?? They are requesting 3 spaces.

Shaffer moved to find in the affirmative for each of Findings of Fact #1 through #8 with revisions recommended by Staff; seconded by Papandreas. The motion passed unanimously.

NOTE: Findings of Fact #1 through #8 as submitted by applicant and revised by Staff were:

Finding of Fact #1 – Congestion in the streets is not increased, in that:

This will create off-street parking in an area that needs organized and appropriately developed parking spaces.

Finding of Fact #2 – Safety from fire, panic, and other danger is not jeopardized, in that:

The City will require improvements to Baird Street and the alley as a part of the multi-family development, which will serve to mitigate existing access and safety challenges for all surrounding properties.

Finding of Fact #3 – Provision of adequate light and air is not disturbed, in that:

The nature of this conditional use will have no positive or negative impact on the provision of adequate light or air to and around the residential structures.

Finding of Fact #4 – Overcrowding of land does not result, in that:

The proposed development will create parking for new residential units in an existing densely populated student housing area were parking is not provided and not readily available.

Finding of Fact #5 – Undue congestion of population is not created, in that:

The proposed development will create parking for new residential units in an existing densely populated student housing area were parking is not provided and not readily available.

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 nature of this conditional use will have no positive or negative impact on noted public services.

Finding of Fact #7 – Value of buildings will be conserved, in that:

The value of adjacent buildings should increase with the construction of a new building in the immediate area that meets minimum parking requirements.

Finding of Fact #8 – The most appropriate use of land is encouraged, in that:

Multi-family residential development is permitted by-right in the B-2 District. This off-site parking conditional use simply ensures that minimum parking requirements are met.

Shamberger then moved to grant conditional use for CU08-15, with the conditions recommended by Staff; seconded by Papandreas. The motion passed unanimously.

Bossio advised Baldwin that the Board’s decision could be appealed to Circuit Court within 30 days and that any work done during this time is at the sole financial risk of the applicant.

E. V08-38 / The Baldwin Group, LLC / 472 Baird Street. Request by The Baldwin Group, LLC for variance approval from the Planning and Zoning Code, Article 1347.04 (A) (3) & (C) as it relates to setbacks and encroachments for property located 472 Baird Street; Tax Map #26 Parcels #283, 284, 287; a B-2, Service Business District.

Fletcher read the Staff Report stating that the petitioner seeks to construct a multi-family dwelling structure containing eleven (11) two-bedroom units at the end of Baird Street. Addendum A of this report illustrates the location of the subject site.

The following table [presented in the Staff Report] illustrates the project’s observance of B-2 building envelope requirements set forth in Article 1347 of the Planning & Zoning Code.

Article 1347.06 (B) provides that, “No parking spaces shall be permitted between the front façade of a building and any street right-of-way.” The petitioner’s site plan illustrates that 13 of the 14 on-site parking spaces will be located between the building’s front façade and Baird Street. As such, a variance relief must be obtained.

Article 1367.08 (C) provides that, “A ten-foot wide buffer shall be provided for the length of any parking area abutting the street,” where parking is located between the front façade and the street. The petitioner’s proposed parking plan does not allow for the development of any buffering as each stall across the front of the property accesses directly onto Baird Street. As such, variance relief from providing the required landscape buffer must be obtained.

The Board of Zoning Appeals must determine whether the proposed requests meet the standard criteria for a variance by reaching a positive determination for each of the “Findings of Fact” submitted by the applicant. Please note that each of the three (3) variance petitions must be considered and acted upon by the Board separately.

Addendum B of this report contains Staff recommended revisions for each of the findings of fact.

Should the Board vote in the affirmative for each of the findings of fact, Staff recommends that the following condition be included with each of the three variance approvals:

1. That the petitioner met with the Technical Review Team prior to the issuance of any building permit.

James Baldwin, II of 119 Webster Avenue stated that a side setback was needed due to the way this piece of property was classified as a corner lot. Baird Avenue serves a right of way. The alley, which is actually a paper right-of-way, causes this property to be a corner lot that would require a 7 ½ foot setback. He is requesting a 2 ½ foot variance.

Bossio asked for public comments for petition V08-38 either in favor or against the petition. There being none, he asked for Staff’s recommendations.

Shaffer moved to accept the Findings of Facts #1 through #4 for petition V08-38 as amended by Staff; seconded by Papandreas. The motion passed unanimously.

NOTE: The Findings of Fact #1 through #4 for petition V08-38 submitted by the Petitioner and revised by Staff were:

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:

“This property is not at the corner of two streets but at the corner of one street and one paper alley containing public utilities that will most likely never be opened to connect Baird and Locust due to steep slopes and existing structures fronting Locust. The proposed side setback of five feet is otherwise within the minimum required side setback standard in the B-2 District. There is a stormwater line running across the front of the subject property that serves as a physical barrier to utilizing the normal building envelope provided for the B-2 District.

The property is not very deep compared to the large rear setback requirement and there is a stormwater line running across the front portion of the property.”

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:

“There is a stormwater line running across the front of the subject property that serves as a physical barrier to utilizing the normal building enveloped provided for the B-2 District. Many of the existing structures within the immediate area appear to encourage into minimum side setback standards due to the fact they were most likely constructed prior to the City’s zoning regulations.”

The developable area for other surrounding properties is not reduced due to a stormwater line running across private property rather than within a public right-of-way as is the case with the subject property.”

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 site is somewhat isolated due to topography and right-of-way alignment surrounding the subject property. The proposed building footprint appears to avoid harming the stormwater line running across the front of the property by avoiding it and minimally encroaching to the side setback standard.

The variance request is the result of moving the building further into the required rear setback so that the stormwater line is not harmed. Steep slopes provide a natural buffer between the subject property and adjoining properties with structures fronting Locust.”

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 requested relief provides for an encroachment into the minimum side setback from a paper alley right-of-way that contains utilities, which will most likely never be opened due to steep slope, and should have no adverse impact on surrounding land uses, properties, or traffic.

The proposed setback will allow sufficient space in the front for thirteen on-site parking spaces. These thirteen spaces plus the three off-site spaces on the adjoining property should ensure this project does not contribute to the traffic congestion and vehicular maneuvering limitations caused by neighboring multi-family structures that depend on on-street parking spaces. The project’s targeted tenancy and its proximity to the downtown campus is expected to mitigate trip generation that is normally attributed to this type of development. A new building on this site, whose design is in character of the neighborhood, should enhance property values.”

Shaffer moved to grant approval of petition V08-38 with the condition recommended by Staff; seconded by Shamberger. The motion passed unanimously.

Bossio advised Baldwin that the Board’s decision could be appealed to Circuit Court within 30 days and that any work done during this time is at the sole financial risk of the applicant.

F. V08-39 / The Baldwin Group, LLC / 472 Baird Street. Request by The Baldwin Group, LLC for variance approval from the Planning and Zoning Code, Article 1347.06 (B) as it relates to parking between the front façade of the building and street right-of-way for property located 472 Baird Street; Tax Map #26 Parcels #283, 284, 287; a B-2, Service Business District.

Fletcher stated that the site plan shows parking along the entire length of the front façade. The stormwater facility runs across the front of the property. Preliminary approval has been received from MUB. This variance allows parking between the façade and the front of the building.

Baldwin stated the location of the stormwater box dictated what could be done. In order to utilize the space sufficiently, the building was actually pushed back. Cars would be able to park on the box and, if needed, MUB could rip up the parking area to get to the box.

Fletcher also referenced the drawing from MUB showing the perspective to the proposed building footprint.

Bossio asked for public comments for petition V08-39 either in favor or against the petition. There being none he closed the public comment portion of the hearing and asked for Staff’s recommendations.

Shamberger moved to accept the Findings of Facts #1 through #4 for petition V08-39 as amended by Staff; seconded by Papandreas. The motion passed unanimously.

NOTE: The Findings of Fact #1 through #4 for petition V08-39 submitted by the Petitioner and revised by Staff were:

“The stormwater running across the front portion of the property forces the development of a structure towards the rear of the property leaving the front area for parking.”

“The subject property is shallow, approximately 69 feet deep, and contains a stormwater facility across the front portion of the property leaving parking as the only feasible development in the front portion of the subject property.”

“The subject property is one of the only properties fronting Baird Street and all neighboring properties have parking between the structure and Baird Street. The proposed parking in the front of the property is intended to not harm the stormwater line running across the front of the subject property.”

“This project will facilitate redevelopment of a currently blighted area consistent with the overall characteristics of the surrounding property. Granting of this variance will reduce the need for off-site parking, thereby minimizing the potential adverse effect associated with traffic congestion on public (Locust/Dallas) streets.”

Shaffer moved to grant approval of petition V08-39 with the condition recommended by Staff; seconded by Shamberger. The motion passed unanimously.

Bossio advised Baldwin that the Board’s decision could be appealed to Circuit Court within 30 days and that any work done during this time is at the sole financial risk of the applicant.

G. V08-40 / The Baldwin Group, LLC / 472 Baird Street. Request by The Baldwin Group, LLC for variance approval from the Planning and Zoning Code, Article 1367.08 (C) as it relates to landscape and development with parking located between building and street for property located 472 Baird Street; Tax Map #26 Parcels #283, 284, 287; a B-2, Service Business District.

Baldwin stated that he would rather have the landscaping in front of the building. Also, whatever type of landscaping is dictated by code is the kind that he will use.

Bossio opened the public comment portion of the meeting asking for comments in favor or against Baldwin’s request. There being none, staff recommended revisions to the petitioner’s findings of fact.

Shaffer moved to find in the affirmative to Findings of Fact #1 through #4 for petition V08-40 as amended by Staff; seconded by Papandreas. The motion passed unanimously.

NOTE: The Findings of Fact #1 through #4 for petition V08-38 submitted by the Petitioner and revised by Staff were:

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 abnormal infrastructure obstacles located along the front portion of the subject property and the fact the property is not very deep requires each stall across the front of the property to be accessed directly from Baird Street. The location of the proposed building and parking will allow for landscaping along the front of the building as opposed to the street line.”

“The existing property configuration, abnormal infrastructure obstacles, and overall topography require parking to be accessible via the right of way that adjoins the property.”

“Most of the length of Baird Street serves as access to rear parking areas that are not buffered from the right-of-way. Developing parking with direct access from Baird Street is the result of the shallow lot configuration and the stormwater running across the front portion of the property.”

“Most of the length of Baird Street serves as access to rear parking areas that are not buffered from the right-of-way.”

There was some discussion as to where the dumpster pad would be located. Baldwin advised he verified the Allied Waste truck can make the turning radius. Bossio stated the surface of the parking area would need to be concrete to support the weight of the Allied Waste truck. Fletcher reminded the Board that the dumpster issue is not germane to Baldwin’s’ request but the matter would be properly addressed during site plan review by the Technical Review Team.

Cardoso moved to approve petition V08-40 with the condition recommended by Staff; seconded by Shaffer. The motion passed unanimously.

Bossio advised Baldwin that the Board’s decision could be appealed to Circuit Court within 30 days and that any work done during this time is at the sole financial risk of the applicant.

V. OTHER BUSINESS

A. Public Comments – None

B. Staff Comments

- Fletcher advised that Staff prepared the Board’s meeting schedule for 2009 for the purpose of identifying any immediate conflicts with scheduled community events. The only conflict at this point is a home WVU men’s basketball game on the third Wednesday in February. The Board agreed that alternate dates should be considered. Fletcher stated that he would send alternate dates via email to see what dates work best for the Board.

VI. ADJOURNMENT – 7:10 PM