Board of Zoning Appeals - Regular Meeting

for the Morgantown Planning Commission to order. Um, unless anyone wants me to, I'm not going to read the premeating announcement. Okay. Move to the agenda. First item on the agenda is general public comments. Are there any comments on matters not on the agenda? Okay, next is meeting minutes from August 14th. No, wait, I'm wrong. I was like, wait, which one is that? September 11th. I was on the wrong page. Meeting minutes from September 11th. Move to approve. Second. Okay. Motion to second. All in favor? I. Okay. Any minutes from October 9th? Move to approve. Second. Okay. All in favor? I I abstain. Next item is map 25-108 DeAndre Mason, 126 Simpson Street. Mr. President, thank you. Uh before we I turn over to Seth Carwell, our new city planner, just wanted to welcome him aboard. Um Seth comes to us from the West Virginia Brownfield Post Assistance Center at WVU, where he helped communities inventory and develop strategies to mitigate slum and blight of property. Um, just for your information, Seth has a master's degree in at from WVU in public administration and was recently recognized as an AICP candidate, which is critical to a critical milestone to becoming a certified planner with the American Institute of Certified Planners. It has been a pleasure working with Seth Seth since he came on board last month, and we look forward to working with you all on a variety of projects coming up in the new year um as it as it pertains to updating some of the planning and zoning code. So, thank you, and I'll turn it over to Seth. Okay. Thank you, Mr. President, and thank you, Ricky. Um, so this is my first staff report summary. Um, the applicant tonight, which is, uh, owns the property at 126 Simpson Street. Uh, the property

is a pre-existing non-conforming use in the R1A single family residential district. He's seeking a zoning map amendment to reszone the property to R2. uh intends to use the principal structure as a dwelling two family which alters the non-conforming use to another non-conforming use in the R1A district. Therefore, the applicant is seeking to reszone that property to the R2 where that use is permitted by right. Um refer to the maps up here. That's just a quick parcel view of the property at 126 Simpson outlined in yellow. This is a view of the zoning with the property outlined in red. The yellow dash is the downtown overlay district. And this is a view looking northwest of the property on Simpson Street. Property is there on the left. And that is just another view of the property. And looking at some of the analysis of this as per the comprehensive plan, uh the future land use outlines the property as highintensity residential. So if you refer to the compatible use types chart on the right hand side, um you'll see that there are a range of uses compatible with the highintensity residential. And that concludes the staff report. They want to zone it. R2, right? Correct. Yes. Where where is the R2 around it? It is all R1. It's all R1A right now. So, you just wanted one piece of R2 in the middle of R1 there. Yes. So, if you refer to the map that's from the uh Mongalia County parcel viewer, uh it's got the address points on it. So, the address points are denoted in the blue little dots. Um and there appear to be a number of pre-existing non-conforming uses of multifamily dwellings in a close proximity around it. Um the outline for the highintensity residential also promotes that type of development where

contextually appropriate for the neighborhood. I understand that, but what how is this not spot zoning since there isn't any R2 around it? And I understand there's non-conforming uses, but the non-conforming uses are still in the R1A. Right. So, Mr. President, if I may, and I we discussed this with our city attorney, if the proposed resoning is consistent with the comprehensive plan and more particular to the future land use map, it wouldn't necessarily be called be considered spot use zoning or uh spot zoning because the future use and the reasonzoning of that property is consistent what the city desires to see there in the future. Yeah, but I think you have to reszone the whole thing. That's what I think. But anyway, anybody else have any questions? We had the same discussion last time. Was there any discussion with the applicant about the other item on our agenda for continuation of non-conforming uses that have expired and waiting for that process to play out? I don't believe we had that direct conversation, but I believe that that there's a a need or a want to try to um occupy the property as quickly as possible. Yeah. Well, I understand that and the applicant is here, so they can kind of speak to that, but but this is like it similarly I think what Mr. Petro said before. It's a process and discussion we've had before and similar items have come before the commission in the past. Hopefully item two will maybe address some of those things. So this was in non-conforming use but then out of lease for a while. Is that the idea? So the he is wanting to it was a non-conforming use for a multifamily dwelling. He's wanting to convert it to a two family dwelling which converts it from a non-conforming use to another non-conforming use in the current district. Okay. So has the current non-conforming use

expired? By that I mean if it's not used as that for a year then it didn't that has not been determined. Yeah, we've been talking to the applicant, but that has not been determined yet terms that that year and a day has passed. Okay. What what's holding up that determination? Communication. Okay. Is the applicant here? Yes. Yes. How you guys doing? Good. All right. So, as they address, I am DeAndre, the owner of 126 Street. Um, so yeah, they pretty much explained it. uh as best as I could, the property was already existing as either a single family or a multif family use and based on the whole conditional use thing in that area is that you can't change it from a three to a two. Uh but I believe that the property works better functionally as a two unit. Um I can show you some pictures that are linked to the uh you know the application kind of show you why it makes more sense. It's it's safer. It cuts down on the parking issues in that area. It's a really small street. Um, we pretty much only have off- streetet parking available, so we're trying to make it go from a three to a two. Um, also, there's more work that we would have to do in order to make it an official three units. We already have a letter of compliance. Whenever we put the property under contract back in July, uh, the property was already given given to us with the letter of compliance as a 3unit. Um, but all the due diligence that I did on public record database said that the property was a 2unit or a duplex. So on my due diligence, everything I saw on all the public record databases was that it was a two two family unit or a two family dwelling. Um, so there's a little bit of discrepancy there uh kind of supports

this amendment. Um, I know the area is mainly R1A, but there's other duplexes, triplexes, quads in the area. Um, so yeah, if we just move forward to any questions that you have and then I can kind of give you guys an idea of what we plan to do converting it to a three to a two. Is is is it currently leased out? No. How long has it not been leased? So, we put the property under contract back in July. Um the sellers from to my knowledge had the place rented out to their children that went to school here. Um both unit or both buildings or it's it's two lots, two properties. There's a carriage house in the back. They had both of those rented out and like you said, I guess it's been a year a year and a day. You said that? Um so that's what we're trying to confirm with you, but Okay. Yeah. Well, we've only owned the property for a couple months and before that it had been rented out previously. Do you know when it was last rented out? I wasn't the owner at the time, so I don't know when the leases ended. There was furniture and all types of stuff in there. So, so how about when you purchased it and it went under contract in July? Mhm. Were there people living in it? Uh, I believe they were moving out. Okay. Yeah, they whenever we went to the property, there were there were multiple times they were moving stuff out of there. So, it was vacant when I was doing my, you know, inspection phase, but it was, you know, there was furniture, couches, fridges, books, all that stuff in there. Okay. [snorts] Ricky, would the city have any information on when it was last rented out? You guys just do compliance. You don't care when it's rented out, right? We have the compliance letters, and as the applicant mentioned, it was reissued back in July. Um, our records go back to the early 80s of that property being uh multi-use and yeah, multif family use. Always three or three or two or what? What is it? Always three units or two units? What was it? It was three units. Okay,

Mr. President, may I ask a question? Absolutely. Um, do you know how many meters are on the property? Uh, electric meters. Two. Two gas meters. Uh, two electric [clears throat] meters. Is it one for the I guess the primary residence and then one for you said there was a ADU in the back our carriage house. So it's two separate. Yeah. I know that doesn't really solve our one year discrepancy but um that's where I'm hung hung up a little bit. But if we wouldn't have had this kind of conflict with trying to just get it reszoned we were we were already had to rent it out. So if it's if it's a year and a day, you know, we closed back in the end of September. You know, we could have if we wanted to rented it out immediately in October, but since we have this issue of getting approval and, you know what I mean, just just government stuff where you got to wait a little bit to get things done, you know, we would have already had it rented out before that year in one day, you know what I mean? And there's not like a listing or anything that you can find even from August or or year previous 6 months before you got there that that was even being rented out. No, the best I could do is I could ask the realtor I work with to see if we can get something from Gotcha. the sellers. That's all I would need if they had something that said that they've been renting it out. Um, seems to me like the opposite should be true. The city should have to prove that it's no longer [snorts] Yeah. that it was not in use. That's all the questions I have. Thank you. And this really doesn't speak to the reszoning. It speaks to more of a continue the current non-conforming use than anything. If I may, Mr. President, the proposed use is actually another non-conforming use. So, I I understand that, but I guess what I'm saying is is if that fails, they and it hasn't been a year and a day, they

can still continue with their current non-conforming use. Correct. Is what I'm saying. That is correct. Okay. Anybody have any questions for the applicant? One last one. Sorry. So, the the main house that has three units in it currently, that's what the compliance letter says. If you guys actually laid eyes on the property, you would see this. It's more set up as really like a single family unit. It's just a massive house. It's got three floors. Um, the third unit is technically the attic. Um, and it being an attic, it's probably like 400 square ft. It'd be super super small for someone to live up there. Sure. That'd be a third person in there having to navigate through. Uh it would just make the layout really weird. We would have to add new walls and and and fire doors and whatnot. If it's used as two, the attic can be pretty much used as like a second bedroom or storage area for that second unit cuz it's an up down type duplex, right? And that in that portion is there two kitchens or Yes. Okay. Yep. There's two there's two kitchens. Um, there's a bathroom on each floor and there's multiple bedrooms on each floor. So, living room, all that. So, there's no like actual like construction that we're going to have to to do a ton of work to it. Any other questions for the out? Um, I have a quick question. And the carriage house you said in the back and that would not be part of it. Part of it. No, that's where that's where I'll be living and kind of remodeling over time. Yeah, that won't be rented out. That So, yeah, that's kind of confusing, too, cuz that's what I thought is that the carriage house was included in that letter of compliance as that third unit cuz it said it was three units. So, the record, the property database and you know what I mean, public record was saying it was two

family for the main house and then the back house is pretty much just a single family unit. So, I'm getting the letter of compliance thinking, "Oh, it's these two for [snorts] the main house and then the back carriage house would be the next unit if I wanted to rent it out myself." But we're not planning on renting that out. No. Okay. Any other questions for the afternoon? Okay. Thanks. Thank you. So, um, anyone in the audience would like to speak in favor of this petition? Anyone in opposition? Okay. Can we get staff recommendations, please? Yes. So, the proposed zoning reclassification of the property wed existing development character with some of the future land uh reuses that are outlined above up here. Um if the property were to be reszoned, the applicant's desired in use, which is the dwelling two family would be permitted by right. Um so given the structure and the previous use of the property, staff recommend that the property be reszoned from an R1A single family residential to R2 single and two family residential. Okay, discussion. I have another question. Sure. Does resoning have any effect on that on the use of the ADU in the back? So, it is my understanding that the ADU is on a separate parcel than the principal structure according to the Mongaya County parcel viewer and everything that I viewed. Any other discussion or questions? I would say for matter discussion, um I wish we could even delay this vote

even just look on a quick Google search to see if you could find any type of uh a listing or something of advertising that uh list I'm sorry we do have a listing up but we weren't going to rent it out until we final say from you guys. You know, you know what I mean? Sure. And we did do a quick Zillow search and it did represent who who was listing it, but it wasn't a time of when it Sure. Yeah. But I understand. Yeah. There were also when we did the searching there was no posting of any rental data from it. It was only when the property transferred ownership. Sure. So, but I think really that's not the issue. The issue is whether we're going to stick an R2 in the middle of R1A um with nothing else around it. That's that's the issue. Yeah. Well, I was trying to avoid the reszoning alto together. Yeah. I mean, so, but if we don't reszone it and it's not been a year and a day, they can they can have three units but only rent two or whatever they want to do. Correct. They can continue the non-conforming use and then we'll see about the um whatever comes next, this proposed text amendment, and if it passes, then they need to want to redo it, then they come back. But Sure. Sure. But I don't think anything stopping them from continuing on with the current non-conforming use. I'm my big concern is this right spot zoning. I understand and I know we've had that discussion as a commission before and that's kind of my my gut instincts is the same as yours that this is spot zoning but we've have a commission have have uh um recommended approval to to council. So um I feel it's okay. It does kind of a little strange especially on the heels of of a non-conforming kind of text amendment coming through. So, it seemed to take care of it. But, um I I would just say as my discussion piece that I'd be willing to approve this

resoning uh just to be consistent with with our our previous um uh recommendations we pass. Yeah. See, I think previously we we have avoided spot zoning, and that's usually been one of our first questions is how is this not spot zoning, which I think was my first question. What was the situation on height street? Was that entirely surrounded in R1A when we reszoned that piece of property? Yes. And I think that was the same thing we got out of this. It says, "Oh, it's consistent with the plan, so we have to do." I was against that, but you weren't here. I wasn't here. Yeah. [laughter] No. Um, maybe another question. Is there any kind of tax records that would help us determine if it was That's what I was trying to do, but I don't have access per address. I think you my guess is the real estate taxes are just going to go to the owner and but if they have personal if the person living there has personal property, it would have been registered. It really seems to me that unless the city can say this is no longer grandfathered because it's been out of use, we should assume that it is still compliant. And I agree with that. And I agree with that. And we they have the letter of compliance as of September. July. Yeah. Or July. So I think they can continue with the current non-conforming use and it doesn't have to be resumed as long as that year and the day has not come and gone. Well, you gave you guys gave them a letter of compliance within the last 6 months. Right. Right. But some that but that can be right. But that can also be the property can be vacant and turning over sometimes. The inspections is based on the number of units and what's being requested at the time. And I believe that the previous owner is the one who requested or who got the property to be um uh the letter of compliance.

Okay. So, right. So, here's what I'm hearing. One, when they were doing their inspections, people were moving out, which leads me to believe that people were in there as of July. Two, you guys gave a letter of compliance within the last 6 months. So, within the last 6 months, all the evidence I see points to people living there and the non-conforming use continuing. You guys got anything else to disprove that? No, sir. Okay. So, I don't see why the current non-conforming use can't continue. And I understand that's not what you necessarily want to do, but it's something that you could do, but it's something you can do, right? So, it can still stay as a A3. You don't have to rent it out as three. uh you don't have to rent to three separate people, but you can still continue with the current non-conforming use because it hasn't been a year that is that it hasn't been used as that and it doesn't have to be reszoned cuz my again my concern is the the reason if there's concerns on that and just because trying to work through it would maybe consider a motion to table to find that out and if it's okay so my problem with that is if we keep tableabling it if we table too long I don't want to table him out of a non-conforming use for That's what I don't want to do. I think we can make that determination in the next having communication the next I I guess. Why would you make that determination? Cuz you already gave him a letter of compliance. I think you already have. That's just me though. I I agree with the president that if I mean it seems like they have a vested interest um at this point. Um and I would rather we can avoid the whole mess of of whether it's a spot zoning altogether if we just go ahead and uh as a commission say that we it's our

belief that it's a legal non-conforming. And I would so add to if you do want to change it to a proper uh duplex that because that's going from three to two that's a lesser of a non-conforming use and so you could my understanding [snorts] also convert it to a duplex. But again if if he has a letter of compliance to rent to three people that doesn't mean he has to rent to three people. That's true. That's true. Yeah. And if it's not set up where there's three separate doorways in Right. You can charge more for the unit that's got the upstairs with it. Just me. I just don't like the spots on anyway. Any other discussion? Speaking to your concern, if we table this, what is what are the asurances that we get that we don't put the applicant in a bad situation? We don't we don't I don't the one thing I would say to that is obviously we would be looking at is are they trying to rectify the situation? So if there was a delay with what we're going through right now, that would not be put against the applicant. Okay. So if we found out like tomorrow is the the the year and a day, we would obviously work with the applicant because we're here now before the commission. So yeah, but just think we can avoid everything. That's a proper use of government, avoiding everything. Right. Okay. You've got a lot on your plate. Look into something else. This one is compliance. Yeah, it it's [laughter] it's it's got it letter of compliance. Yes. So, I think what we Well, I'll make a uh uh I will make a

motion that we recommend to council to uh deny the application with the understanding that this is actually a a conform or a legal non-conforming use as evidenced by the compliance of in July. So that way we are avoiding the reasonzoning but we are deeming this an acceptable use and should should continue as such. Second. Okay. A motion and a second. All in favor. Does everyone understand this motion? Yes. It was complicated but I think I [laughter] was working through it. We're good. And we have a motion. Second. All in favor? I. And look unanimous. Okay. So, you understand what we did? Yeah. It's going to stay non-conforming use. Keep the current zoning, but I can rent it out to if I want to. Yep. Yep. It's a It's a legal two three families. It's a legal non-conforming use, and you can rent it out tomorrow if you want. Okay. We'll follow up with Yeah, absolutely. Yeah. Okay. Uh what else we got? [sighs and clears throat] My meeting packet. I'll close my packet. Okay. Item B is a proposed amendment to article 1373 of the city's planning and zoning code establishing a process for revival of the bandit non-conforming uses and other updates. So, Mr. President, the proposed amendments would give applicants an opportunity to revive pre-existing non-conforming uses associated with the properties that are no longer grandfathered. The process to revive a non-conforming use would require an application, review by staff, public hearing, and determination by the planning commission. Said determination would then be submitted to the applicant in Morgantown City Council. If that determination was not appealed to by the applicant to city council, or if city council did not put the item on the agenda within 30 days of receiving

notice, determination would go into effect. Conversely, if the determination was appealed to city council or city council took the matter up within uh the 30-day in a future agenda, the determination would not go into effect and be put on hold until uh the council would make a determination further. That would conclude staff's comments. Okay. So if I understand what you all want us to do is basically say yes, you have a non-conforming use and you abandon that non-conforming use for a year and a day and under, as I understand it, our ordinances, city charter, probably even state code. Um once you abandon for a year and a day, it ceases to be a legal non-conforming use. You just want to be able to revive that legal non-conforming use what was previously there not another another yeah understand um how does that comport with state code pardon me how does that comport with state code so according to let me see here quick so um under state code 8A7-10- C specifically gives city council the authority to make ordinance change relative to the revival of non-conforming uses. Um, and quoting a section of the code, a zoning ordinance may provide for the enlargement or extension of a non-conforming use or the change from one non-conforming use to another. Okay. Read that again. It's that paragraph, right? Yeah. Sorry. Yeah. Is there a page number for that? Um on the first of the actual ordinance, it's that second to last paragraph line in accordance with WBA code.

End. Okay. Enlarged or extended. Does it say revived? It does not. You can't enlarge. You can't extend. And you can't change from one to another. Okay. Furthermore, on Oh, I may, Mr. President. under uh West Virginia code 8A7-11 which describes the conditions under which a variance is required to be issued by the board of zoning appeals limit city council's authority or um does not limit city council's authority to authorize the extension of a non-conforming use. Again, that word extension that means it exists and you it continues to exist and you just make it longer. It doesn't mean it expired and then you start it again. I know from going back and doing a little research and working with um the city attorney on this, there has been instances where the BZA has actually granted an extension of a nonconformity after that grandfather use had ended. It's not an extension. [snorts] I'm sorry I'm dominating the conversation. Go ahead everybody. Uh yeah, I would assume so long as we got the authority to do this that it's it's fine. Yeah. Um and so as long as Ryan has our uh city attorney has his blessing, um I'd be fine with it. There's a couple things. So did did uh the city attorney write this? Um Ricky, um do you guys feel comfortable with understanding this? Because this I had to read it a few times. It kind of it's

not very user friendly, I will say. Um just a po to to parts particularly um uh on this after the um just after just kind of look looking at particularly how to revive and everything like that. It's just it's a little I mean I'd rather let the worksmiths work with but if you guys are on board with it that's all that really matters to me and counsel. But that's one thing I've I've noticed. One thing is is um it seems to me that uh has a conditional use like that process been investigated is rather than because it just seems weird for us as a planning commission that's a quasi judicial body to be making referring to council what you know our recommendation is as far as the revival of this um situation. It seems like to me that it could just be how we can quantify the extension of this use as a conditional use and let the the BCA handle that through their through their already stated rules and procedures on how to do that. So, it's very similar to a variance and that seems to be the more appropriate to me way of doing this. It seems a little weird that like 35 days and we make a recommendation and then council can review and then two that the applicant can appeal council's decision back to council. It seems a little messy but um and and that was my question too is if it's a variance from a zoning issue because it's a non-conforming use and you want to put it in there. That's a BZA function, I think, rather than a planning commission function,

right? I think it was sent to this body based on previous conversations at these meetings, particularly with Commissioner Strango, who thought that the planning commission should hold a public hearing on these matters. H but the BCA holds public hearings on matters and I I think it may be our role to discuss whether this ordinance should be recommended to city council but if this ordinance passes city council then I think realistically the the the decision function has to go through the board of zoning appeals because it's a a variance from a zoning ordinance not a let's zone it this way. It's It's already zoned this way. Let's talk to this body to see if we can use it a different way. That's how I think it's going to work. I mean, we can recommend the the approval disapproval of this ordinance, but if if it's approved, I think our we don't do anything else, but that's that's board's own appeals. That's just my opinion. So then your recommendation, Mr. president would be to alter the the way that that's outlined that basically last page where it goes through the appeals process and notification process that would need to be altered. That would be your recommendation. Yeah, I think that has that I think that BZA function not the planning commission function cuz we're planning we're not right so on the ground zoning maybe an agreement in the way to like consider revivals of these non-conforming uses but the manner in which we do it would be through the board of zoning appeals and not through planning commission. Is that what I'm hearing? Well, I have a disagreement on the revival, but yes, if it if it gets revived, if if if it should pass, then then I think the

fun the the administrative function isn't with us, it's with BCA. I'd agree with that. And it seems that you could just you could just lop it on as a conditional use. Whether you have to say like this type of non-conform wouldn't have been a non-conforming use is considered a conditional a conditional use and a and a table of uses or something like that. But it seems to go more in the way that uh President Mh Peters is is talking about um uh sorry I called you the master. Sorry about that. Mr. Peters. Yeah. um that it should go that way and um just looking at state statute and just you know what the our code of ordinances already has we already have kind of a mechanism for that and rather than muddy the waters just kind of tag that onto that process knowing that this is a way to deal with non-conforming uses and then another question I have is if it goes to the board of zoning appeals then can it just go to the board of zoning appeals now without a change in the ordinance cuz they can just go to the board of zoning appeals and say, "Hey, I had this non-conforming use. I want to make it this. Um, can you let me do it?" And then they have to state their case to the board of zoning appeals. And they either approve it or deny it. I don't see why you have to change an ordinance because I think that's something they already can do, right? on at least one occasion I think they did do an extension but so I don't know I don't know what the timeline whether it was yeah I don't know why we have to change the ordinance if we're just going back to having the board of zoning appeals look at it anyway that's what they already did again just me I agree my understanding was always that a variance couldn't be for a use an

uniforming use it could only be for the actual structure or setbacks that why has to reason yeah there was Well, but I'm not sure. I'm not you know, but like um home operated businesses, right? That's a use, right? Yeah. And that goes to the BCA, right? But as a conditional use though, not as a as a non-conforming. Gotcha. Yeah. The the home occupation class 2 requires a conditional use and it's in the U table as such. Okay. So, if I put this in a motion, recommendation, it would be to kind of go that route of the BCA slash conditional use or variance. Here's what I I think it might be better instead of putting the motion saying, let's move to Senate City Council, but with these changes, let's see the changes first. Is there a big hurry for this? You're on counsel. Wow. You run and I actually anticipated attorney there. [laughter] I I anticipated attorney Simon being here to answer questions. So maybe you and I can have another discussion with him about some of these and come back to the next meeting of the planning commission with with Attorney Simon so we can make some updates and then he can be here to answer questions. Yeah. So maybe look at it as as going to the BCA rather than us rewriting that and then he can come and answer the questions. So more than that I guess move the table would be but I don't I can't make motion. I move to table. [laughter] I have a motion. Do I have a second? Second. Motion to second. All in favor? Thank you. Sorry, I didn't let you guys talk about that one. I know you talk, didn't [laughter] you, Dave? You want to talk, didn't you, Dave?

I'm so sorry. Well, you can come back in January. Maybe you want me some call. Okay, I threw this away. Let's see what's next. Committee reports. There you go. You got it. Any committee reports. Staff comments. Notice no draft comment. Okay. Anything for the good of the commission. Welcome, Seth. Welcome, Seth. Yes. Welcome. You had a fun first meeting, right? What was it? You had a fun first meeting, right? Yeah. Eventful. [laughter] Okay. Anyone for adjournment? Move to a drip. Okay. Let's go.