BOARD
OF ZONING APPEALS
6:30 PM September
23, 2008 City Council
Chambers
NOTE: The Board’s regularly monthly meeting was rescheduled from
September 17, 2008 to September 23, 2008 to establish a quorum.
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. MATTER OF BUSINESS:
A. Approval
of July 16, 2008 minutes. Cardoso moved to approve the
July 16, 2008 minutes as submitted; seconded by Shamberger. The motion passed unanimously.
III. OLD BUSINESS: None
IV. NEW BUSINESS:
A. V08-33 /
Jamieson / 3119 University Avenue: Request by Tom Jamieson, on Behalf
of Everyday’s A Party, for variance approval from the Planning and Zoning Code,
Article 1369.07 (I) Wall Sign, Nonresidential for property located at 3119
University Avenue. Tax Map #7 Parcel
#255; a B-2, Service Business District.
Fletcher read the Staff Report stating
that Tom Jamieson seeks to erect a 144 ft², internally-illuminated, wall sign
on the old Foodland/Bi-Lo building at
Article 1369.07 (I) (1) of the
Planning & Zoning Code provides that the maximum area of permitted wall
signs in the B-2 District is 0.6 square feet for each linear foot of
storefront. The linear width of the
subject storefront is 98 feet and the maximum amount of allowable signage is 59
ft². Therefore, the applicant is
requesting a variance of 85 ft².
Staff has discussed the issue of
signage with the one of property’s owner, Chris Sellaro, given the change in
the building’s use and interior floor plan.
For many years, the property contained a pharmacy and a large grocery
store. Since the closing of the grocery
store, the owner has split the grocery area into at least two leasable
spaces. Staff has requested and
encouraged the property owner to develop a master signage plan so that all existing
and potential occupants’ needs, as well as the small bar on site Shab Dab’s,
could be considered. Mr. Sellaro has not
responded.
Tom Jamieson of 105 Regency Drive,
Fletcher explained that the interior
split of the building runs perpendicular to
Shaffer asked the petitioner if the
variance was only for his side of the business. Jamieson stated that it was.
Bossio opened the public comment
portion of the meeting asking for comments either in favor or against the
petition. There being none, Bossio closed the public comment portion of the
meeting 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
Size restrictions are one of several
means to accomplish this policy objective.
It is the opinion of the Planning
Department that a master sign plan for the property is preferred given the
change in use of the subject building.
Although the expansive façade and distance of the building from
University Avenue appears to justify consideration of variance relief, a
piece-meal approach may set an unnecessary precedent for other potential
tenants and surrounding businesses that may, because of this variance, seek
similar relief. It is the opinion of the
Planning Department that the overdevelopment of signage within the subject area
would not “enhance the pleasing look of the City” nor contribute to the area’s
built environment.
The Planning Department worked
closely with neighboring Huntington Bank when it recently updated its signage
so that the number of signs and remaining sign area were reduced to better meet
current zoning standards. Staff
recommends that the Board discuss with the applicant alternate wall signage
scenarios so that relief can be considered but the extent of the required
variance is reduced.
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.
Shaffer stated that the issue of
pole signage comes up often and that percentage cannot be calculated in with
this sign.
Fletcher stated that staff’s
preference is for a master sign plan but the owner has not expressed much
interest in that, and, if the owner is unwilling to present a master sign plan,
the petitioner’s request cannot be denied.
Shaffer stated that he understands
the need for signage but the sign proposed by the petitioner is not
aesthetically pleasing.
Papandreas stated that
aesthetically, the BZA can’t tell the petitioner what to do, but the sign
proposed is appropriately sized for the awning. The other tenant can be dealt with at a later
time.
Shaffer added when another tenant
comes in, the scaling would be looked at again.
Bossio felt the BZA would have a
hard time denying someone else renting the remaining 50% of the building no
matter what their sign looks like. He
did state the size of the sign doesn’t bother him, the sign itself is
unappealing.
Referencing the materials the BZA
had in front of them, Jamieson stated the size of the sign proposed is
accurate, but the sign will look better than what the BZA had for reviewing
purposes.
Bossio asked for the reading of the
findings of fact.
Fletcher 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 building is located
approximately 85 feet from
Shaffer
moved to find in the affirmative for Finding of Fact #1, as recommended by
Staff; seconded by Papandreas. 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 current property was a grocery
store before and it had a much larger sign.
The use of the property will stay consistent with the previous
service-retail use. The proposed sign is
a reduction in signage of approximately 48.5 ft². In order to make the business
visible to the public, signage above the permitted area appears necessary.”
Shaffer moved to find in the
affirmative for Finding of Fact #2; seconded by Papandreas. The motion passed
unanimously.
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:
“Neighboring property owners have
expressed their support for this property to reopen. The proposed use is consistent with the
zoning classification and the previous use of the property. The increase in signage will not harm the
public welfare of the area.”
Papandreas moved to find in the
affirmative for Finding of Fact #3; seconded by Shamberger. The motion passed
unanimously.
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 property is in the B-2 Service
Business District which is zoned for commercial use. The property use is not going to be changed;
it will still be a retail store. This wall signage variance can not increase or
mitigate traffic congestions.”
Papandreas moved to find in the
affirmative for Finding of Fact #4; seconded by Cardoso. The motion passed
unanimously.
Shaffer moved to grant approval for
V08-33 with staff’s recommended condition that no additional permanent wall
signage may be erected for the subject establishment at this location; seconded
by Shamberger. The motion passed
unanimously passed.
Bossio advised Jamieson that the
Board’s decision could be appealed to the Circuit Court within 30 days of
receiving his written notification. Any
work done between now and that time would be at the sole financial risk of the
petitioner.
B. CU08-13
/ Lightner /
Fletcher read the Staff Report
stating the petitioner seeks conditional use approval for the establishment of
a “Restaurant, Private Club” use in the former Rosewood Theatre Café location
on Walnut Street.
Mr. Lightner is currently operating
“The Taylor Morgan Restaurant and Delicatessen” in the subject location, which
is licensed by the West Virginia Alcohol Beverage Control Administration
(WVABCA) for the sale of beer and wine.
The current use is considered a “Restaurant, Private Wine” and permitted
by-right in the B-4 District. Because
the petitioner seeks to sell liquor, the use becomes a “Restaurant, Private
Club” requiring conditional use approval.
According to online state databases
(WV Secretary of State and WVABCA), Mr. Lightner’s business name for the
subject establishment is Octane, Inc.
“The
The petitioner has submitted the
following exhibits, which are attached hereto:
·
Business
description
·
Owner’s
Experience Narrative
·
Proposed
Menu
·
Seating
Plan
According to the said exhibits, Mr.
Lightner owned three private club establishments, which were/are grandfathered
under the City’s Zoning Regulations:
·
Beemer’s
Lounge, later Shooters at
·
Fuel
at
·
Z
Club at
Mr. Lightner noted the following
food service industry experience:
·
“Dogs
on Walnut” mobile food vending service (2004-2006)
·
Fox’s
Pizza Den for six years (two as manager) during high school and early college
The business description highlights
include:
·
Gallery
display of artwork
·
Opens
daily at 11:00 AM for lunch, featuring a variety of jazz
·
At
5:00 PM, dinner services begins with most nights featuring solo jazz or
classical musicians on stage
·
From
7:00 PM to 10:00 PM, the “nightlife begins” while the kitchen continues serving
a full menu with various live entertainment genres
·
After
10:00 PM, the “nightlife shifts into high gear when The Taylor Morgan becomes
‘Club Octane’ featuring various live entertainment genres
·
The
full diner menu is available until 12:00 AM and deli sandwiches are available
to until closing
·
NOTE: A Planning Department Intern visited the
establishment recently and reported that about 9:00 PM a cover charge was
required and age-designated wrist bands were issued.
Robert Lightner of
Papandreas asked the Fletcher if the
60/40 regulation includes the admission cost.
After reviewing the Planning & Zoning Code, Fletcher stated that the
regulations clearly focus on food, nonalcoholic beverages, and alcoholic
beverages and do not contemplated door coverage charges and entertainment
related ticketing sales.
Papandreas stated that if the
admission price was taken out of the percentage Lightner stated, the percentage
for food sales would be 50% to 60%; not having a sign may be affecting his
sales.
Lightner stated the menu submitted
is not yet in production but will be within the next few weeks. All food is prepared on site. He is operating as a Class C Mercantile, and
as such, there can be no fried or grilled food. Presently there is no venting or sprinkler
system, although the Odd Fellows may be undertaking some renovations that would
provide an opportunity to install a sprinkler system.
Shamberger asked Lightner if his
club was the one reported in the Dominion Post as having been issued several
liquor-related violations. Lightner
responded that private clubs have been raided on an average of one per month. The
story written in the Dominion Post did not state that given the size of the
crowd that night of approximately 450, the majority of those patrons came in
forty five minutes before the raid occurred and had been drinking at private
house parties. It is Lightner’s
understanding that the ABCA has not yet decided what they are going to do with
the 30 patrons cited that night.
Cardoso asked if Lightner’s major
draw is for entertainment, what age groups would he be focusing on. Lightner
stated that he would not be targeting one certain market. A lot would depend on what the types of
entertainment would be on a particular night. He also stated he was trying to venture into
more of an upscale clientele and that he does not want to be a beer bar.
Shaffer asked if Lightner was ever
in violations of the ABCC. Lightner
responded that there have been 4 or 5 since 2002; totally 10 or less to date.
Papandreas asked if a patron would
come into the establishment at 6:45 PM and a cover charge for entertainment
would begin at 7:00 PM, if they only wanted dinner, would they be turned
away. He also asked if, on nights having
the most business and there is a cover charge, what would happen if someone
comes in for dinner and all the seats are taken because of the entertainment,
what would happen. Lightner advised
that once that more seating is added, the Class C Mercantile rating is removed,
no one would have to be turned away. Seating
now only encompasses 50% of the floor space.
Bossio stated that if the
petitioner’s intent is to create a dining establishment, the numbers he has
provided do not add up. They show the
intent is for not for dining but for entertainment.
Papandreas asked for clarification
on the sale of wine past 1:00 AM. Fletcher
stated that the Planning Department has recommended in previous restaurant
private clubs conditional use approvals that wine sales, as with liquor sales, end
at 1:00 AM. This recommendation was in
response to requests for this additional condition by Jim Smith, former ABCA
inspector. The ordinance, however, does
not require wine sales to end at 1:00 AM.
If this petition is approved and the BZA choose not to include the 1:00
AM wine sales end time, then it should release the same condition on the other
restaurant private club uses that were approved with wine sales end time.
Bossio opened the public comment
portion of the meeting, asking for public comment, either in favor or against
the petition. There being none, Bossio closed the public comment portion of the
meeting and asked for staff’s recommendations.
Fletcher 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.
Shaffer moved to not to grant a
waiver to the “one year bona fide restaurant” requirement provided in Article
1331.06 (27) (c) because it was not clearly demonstrated by the application,
supporting documents, or testimony that the proposed establishment would meet
the City’s Planning & Zoning Code performance standards set forth for
“Restaurant, Private Club” uses in the B-4 District.; seconded by Cardoso. The motion passed unanimously.
Bossio stated that based on the fact
the Board did not grant a waiver to the one year bona fide restaurant standard,
it was unnecessary to consider the petitioner’s conditional use findings of
fact. He also advised Lightner that he
has 30 days from the date of his notification letter to appeal the Board’s
decision to the
C. V08-34 / Lightner /
216-218 Walnut Street: Request by Robert Lightner for
variance approval from the Planning and Zoning Code, Article 1369.07 (I) Wall
Sign, Nonresidential for property located at 218 Walnut Street. Tax Map #26A Parcel #130; a B-4, General
Business District
Fletcher presented the Staff Report stating
that Robert L. Lightner, owner of Octane LLC, doing business as “The Taylor
Morgan Restaurant and Delicatessen” and “Club Octane”, seeks to erect an
approximate 58.1 ft² sign at
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 43.75 feet, which results in a maximum allowable sign
area of 17.5 ft².
The proposed signage will be either
painted on or affixed to the existing 40.08 ft X 3.5 ft metal panel above the
storefront windows (see photograph in Addendum A). Therefore, the applicant must obtain a 26.25
ft² variance for his proposed 58.1 ft² sign.
He referred to the photo provided by
petitioner showing the panel for signage and that the petitioner’s proposed
signage is much smaller than the panel illustrated in the photograph. Signage area is calculated based on the lettering
and not the size of the panel in this case.
Robert Lightner of
Papandreas asked if another sign
will be added for the “Octane.” Lightner
advised a internal unregulated sign already exists at the separate entrance.
Bossio opened the public comment
portion of the meeting, asking for comments either in favor or against the
request. There being none, he 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
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.
Shaffer moved to accept Findings of
Fact 1 through 4 as recommended by Staff; seconded by Papandreas. The motion passed unanimously.
NOTE: The Finding of Fact for #1,
#2, #3 and #4 included in the staff report 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 metal panel intended to serve
as a signage area for the subject storefront existed prior to the current
maximum wall area standards. The
proposed signage area is significantly less than the metal panel and leaves
almost 60% of the panel unused.”
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 the amount of frontage at
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 metal sign panel is
pre-existing and the proposed lettering appears to occupy less square footage
than prior businesses that have operated in the same location, i.e. McCrovy’s
or The Rosewood Theater Café.”
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 signage will be added to an
existing structure located in a B-4 District.
The sign should not diminish the market value of any area businesses or
increase traffic congestion as the signage is intended for a business of
similar nature to prior businesses that have operated in the same location.”
Shaffer moved to grant variance approval
for V08-34 with the conditions recommended by Staff; seconded by Papandreas. The motion passed unanimously.
D. CU08-14
/ Wubbie Development Group /
Fletcher read the Staff Report
stating the petitioner is seeking to convert a vacant structure at
Richard Brant, President of Main
Street Morgantown, submitted a letter of support dated August 27 2008, which is
attached hereto, and states that, “the applicant for conditional use approval
CU08-14 has satisfied the objectives that will allow for its productive
integration in the downtown mix and ask that the Board of Zoning Appeals
approve the request.” Fletcher also stated pending the decision of the BZA, the
petitioner is scheduled to appear before the Planning Commission for the site
plan. The petitioner was present to speak on behalf of his request.
Michael Shuman of
Papandreas asked if Shuman would be
adding to the building. Shuman stated that
as he told Papandreas previously, that they will be going up one more floor. The building was last used by
Bossio opened the public comment portion
of the meeting, asking for comments either in favor or against.
Terri Cutright, Executive Director
of
With no further comments for or against
the petition, Bossio closed the public comment portion of the meeting and asked
for staff’s recommendations.
Staff recommends that the Board find
in the affirmative for each of the Findings of Fact submitted by the petitioner
and approve the conditional use as requested with the following condition:
1.
That
the petitioner must obtain site plan approval by the Planning Commission for
the Development of Significant Impact.
Referencing a statement made to
Papandreas, Cardoso asked Fletcher for clarification on the rules regarding
conversations between a board member and applicant. She believes Shuman made a rather innocent
comment during the questioning of the petitioner that might be misconstrued by
the other board members or those watching the meeting.
Fletcher stated the Board’s By-laws provide
that a discussion that is germane to what is presented to the Board is to be
disclosed, along with the content of that discussion. If the nature of that discussion would cause
that board member to not remain unbiased, then he or she is expected to recuse
them self.
Papandreas stated that if Mr. Shuman
or any Board member would like him to recuse himself, he would be glad to do
so. He stated he did not recall any
conversation he may have had with Mr. Shuman, which is why he asked the
question of him in the first place.
Fletcher stated no site plan is
required since the building already exists and runs from property line to
property line. He also stated the parking issue will be addressed by the
Planning Commission. The matter before
the Board is whether or not Shuman can development residential units within the
structure’s first floor rather than commercial.
Shamberger noted that he recalls
that the Board had approved a similar request by George Bright, but for
whatever reasons, he never did it.
Shaffer moved to find in the
affirmative for all Findings of Fact submitted by the applicant; seconded by
Shamberger. The motion passed
unanimously.
NOTE: The Findings of Fact for #1
through #8 submitted by the petitioner were:
Finding of Fact #1 - Congestion in the streets is not increased, in that:
“The proposal to use the first floor
of the proposed project for residential uses as opposed to business or
commercial uses will actually result in less congestion and traffic on the
surrounding streets.
Finding of Fact #2 - Safety from fire, panic and other damage is not jeopardized, in that:
“(a) The proposed project has been
designed to satisfy if not exceed all requisite and applicable safety and
building codes and ordinances.
(b) The proposed project is primarily
masonry construction.
(c) The proposal to use the first
floor of the proposed project for residential uses as opposed to business or
commercial uses will result in an immaterial or even negligible increase of in
the number of residents within the area of the proposed project.
(d) The area surrounding the
proposed project is either parking lots or vacant property.
(e) The area surrounding the
proposed project is presently patrolled by police and within blocks of the
Finding of Fact #3 - Provision of adequate light and air is not disturbed, in that:
“The proposed project is the
renovation and rehabilitation of a building that has been sitting in the
downtown area for nearly if nor more than a full century, not the construction
of a new building. The proposed project is a reuse of an existing and important
downtown structure to meet current market needs and opportunities and serves to
protect the character of the existing building.
Finding of Fact #4 - Overcrowding of land does not result, in that:
The proposed project is the
renovation and rehabilitation of a building that has been sitting in the
downtown area for nearly if not more than a full century, not the construction
of a new building. The proposed project is unique in that it renovates and
rehabilitates a structure that is located within the city that has a low impact
visibility and provides an ideal location for residential uses given its proximity
to the downtown campus. Furthermore, the proposed project is a reuse of an
existing and important downtown structure to meet current market needs and
opportunities and serves to protect the architectural character of the existing
building.
Finding of Fact #5 - Undue congestion of population is not created, in that:
(a) The proposal to use the first
floor of the proposed project for residential uses as, to business or
commercial uses will only result in a few additional residents in the area in
relation to the proposed project as a whole.
(b) The area surrounding the
proposed project in all directions is presently vacant property or parking
lots.
(c) The proposed project places more
residents within walking distance of downtown businesses effectively reducing
the number of vehicles on the surrounding streets.
(d) the proposed project places more
residents within walking distance of the downtown campus, effectively reducing
the number of vehicles on the surrounding streets.
Finding of Fact #6 - Granting this request will not create inadequate provision of
transportation, water, sewage, schools, parks, or other public requirements, in
that:
(a) The proposed project is the
renovation and rehabilitation of a building that has been sitting at the
entrance to the downtown area for nearly if not more than a full century, not
the construction of a new building
(b) All utility services are
presently available at the proposed project, and those utilities are more than
sufficient to accommodate a few more residences on the first floor of the
proposed project
(c) The residents of the proposed
project would be walking to campus and the downtown.
(d) The proposed project would more
likely than not be comprised of undergraduate and post-graduate students, not
families having school age children.
Finding of Fact #7 - Value of buildings will be conserved, in that:
The proposed project is the
renovation and rehabilitation of a building that has been sitting in the
downtown area for nearly if not more than a full century, not the construction
of a new building. This has been a building that presently has been unoccupied
and abandoned to tiem and the elements for well over a decade. The proposed
project is highly unique, in an ideal location, and reuses an existing
structure of significant value to the city to meet current market needs and
opportunities. The proposal to use the first floor of the proposed project for
residential, not business or commercial uses, will not impact surrounding
property values in that other than Superior Buick, which is an adjacent
building, which contains no residential space, there are no commercial uses
existing on either side of
Finding of Fact #8 – The most appropriate use of land is encouraged, in that:
The use of the first floor of the
proposed project should be for commercial spaces is neither economically nor
pragmatically practical. From the start of
Shaffer moved to grant approval for
CU08-14 with conditions recommended by Staff; seconded by Cardoso. The motion passed
unanimously.
Bossio advised Shuman 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. BA08-01 / O’Brien /
341-343 Dorsey Avenue: Request by Thomas O’Brien for
administrative appeal relating to Planning and Zoning Code, Article 1373,
Non-Conforming Provisions, as it relates to a duplex in an R-1A for property
located at 341/343 Dorsey Avenue. Tax
Map #37 Parcel #235; an R-1A, Single-Family Residential District.
Fletcher reported that the matter
had been resolved with Mr. O’Brien and he has withdrawn his petition.
V. OTHER BUSINESS
A.
Public Comments – None
B.
Staff Comments – None
VI. ADJOURNMENT – The meeting was adjourned at 8:05
PM