work session to discuss zoning ordinance (zo) … session to discuss zoning ordinance (zo) article...

Work Session to discuss Zoning Ordinance (ZO)

Article 1306: Overlay Districts for

The Mayor, Council, Board of Zoning Appeals and

Historic Landmarks Commission

24 June 2014

Note: The public is welcome to observe this work session. No decisions will

be made during the session that are binding on any participating bodies or

on the general public. No public input will be scheduled during the work

session and working documents will not be distributed to public attendees.

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Big Picture View…..

Why are we doing all of this?

1) Amending our ordinances will bring us into essential and

urgently needed alignment with WV Code.

2) Amending our ordinances will result in clear, defendable

processes and criteria for decisions.

3) Including 1306 in our ordinances will provide the Town with

a (legal) process for handling a hotel project.

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What is a Zoning Overlay?

We are proposing 2 overlays in Article 1306: Overlay Districts

1306.02 Historic District Overlay (under development by HLC) and

1306.03 East Ridge Promontory Overlay

So, what does a zoning overlay do?

―Overlay zoning is a regulatory tool that creates a …district placed over an

existing base zone.‖ The general purpose of overlay zoning is to ―attach

regulations or incentives to protect a specific resource or guide development

within a special area‖ (Center for Land Use Education).

What happens to the underlying zoning when the overlay boundary is enacted?

By definition, the underlying zoning always remains in effect unless

specifically altered in some way within the overlay ordinance.

And why do we want the East Ridge Promontory Overlay District?

Several purposes are listed in 1306.03[b](2) consistent with our

Comprehensive Plan, but the main reason is to be able to handle and to

regulate a complex hotel project differently than smaller projects in the rest of

the municipality.

Note: 1306.03 requires “The boundaries of this Overlay District…shall be a single boundary

enclosing one area of contiguous properties including the rights of way owned by the Town of

Harpers Ferry.”

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What does the proposed Article 1306.03 actually say?

Section 1306.03(a) describes the East Ridge Promontory Overlay District

Section 1306.03(b) lists the objectives for the District

Section 1306.03(c) lists the Uses allowed in the East Ridge Promontory Overlay that

are in addition to or in place of the underlying zoning.

Permitted Uses are listed in 1306.03(c)1. All of these - that are related to

the hotel operations - are the ―by right‖ uses which passed from the seller of

the old Hilltop Hotel to the purchaser. These were legally in place when the

transaction was made.

Conditional uses are listed in 1306.03(c)2. Conditional uses must be

approved by the Board of Zoning Appeals according to any conditions set

forth in 1306. The BZA must review using a process proscribed by State code.

Any requests for uses beyond these Allowed Uses requires a variance from the BZA.

A rezoning request or a request regarding any public property must be decided by the

Council.

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General Project Permit Review & Approval Process

(outside Promontory Overlay)

Project Application

Review by Historic Landmarks Commission on basis of published Historic Preservation Standards &

Guidelines .

Review by Planning Commission on basis of the Zoning Ordinance other than Historic Preservation

matters

Board of Zoning Appeals

Town issues a “project” Permit given all needed approvals

Must refer for

Conditional Uses

Jefferson Co. Court

If small project & fully compliant

without subjective judgment, then

a designated Administrator can

approve and issue a Permit

Must refer for Zoning Variances

Applicant may appeal PC decision

Recommendation from HLC for BZA

decision is required

Appeal of

BZA denial

Can “administratively”

approve Permitted Uses

(only)

BZA Approves

Concept Plan Required

Reviewed by PC with input from HLC

and Tree Committee

(only advisory to applicant)

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Promontory Overlay Permit Review & Approval Process (inside Promontory Overlay adds a step)

Project Application


Guidelines .


matters



Must refer for

Conditional Uses

Jefferson Co. Court





Must refer for Zoning Variances

Applicant may appeal PC decision

Recommendation from HLC for BZA

decision is required

Appeal of

BZA denial

Can “administratively”

approve Permitted Uses

(only)

BZA Approves

Start

Here If Project cost is less than $100K

PC should hold Public Hearing

Concept Plan Required

Review by PC (only advisory to applicant)

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Promontory Overlay Permit Review & Approval Process (Opportunities for Public Comment)

Project Application


Guidelines .


matters



Jefferson Co. Court





Appeal of

BZA denial

BZA Approves

Start

Here If Project cost is less than $100K

HLC mtgs

(as today)PC mtgs

(as today)

Public Hearing

Is Required

(as today)

All town ordinances apply to the development and conduct of activities within

the East Ridge Promontory Overlay District. These include:

– Section 137.05: nondiscriminatory labor practices

– Section 137.07: nondiscriminatory housing practices

– Part Three: traffic and parking ordinances

– Part Five: general offence ordinances including

Section 509—disorderly conduct and peace disturbance

Section 527—noise

– Part Seven: Business and Taxation Code

– Part Nine: Streets, Utilities, and Public Services Code

– Part Eleven: Health and Sanitation Code

– Part Fifteen: Fire Prevention Code 8

Some important protections are not listed in Part 1306.

Are they still in effect for the East Ridge Promontory Overlay District?

Amendment proposal also includes documents that are still in draft form and

are to be properly placed by our attorney.

These will be in Part Thirteen: Planning and Zoning or Part Seventeen:

Building and Housing in accordance with legal advice now underway.

These documents include, but are not limited to:

– New Project Application forms, Fee Schedules, etc.

– Standards and Guidelines for the Historic District (in process, Historic

Landmarks Commission)

– Hotel Design Standards for the East Ridge Promontory Overlay District (in

process with HLC & PC)

– Storm Water Management Ordinance (legal review completed)

– Construction Standards and Best Practices (under legal review)

– Outdoor Lighting Standards (under legal review)

– Section 1304 update including revision of Short-term Rentals of homes (under

legal review)…this section is relevant here as it contributes to both the

―buffer‖ and the stability of the East Ridge Promontory Overlay District9

Some other important protections are not listed in Part 1306.

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So, what might happen if…... (a few “scenarios” of very many possible ones)

Before we proceed through 5 suggested scenarios, we offer some

general observations:

• Land use ordinances can be complicated and are difficult to read, but they

follow certain principles and are constructed to handle multiple scenarios.

• After extensive discussions, expert advice, reviews and comments, the PC

is confident that the proposed ordinances are quite ―robust‖ for addressing

likely scenarios and are certainly far superior to our current ordinances.

Experts seem to agree.

• Of course, no ordinance can be made ―perfect‖ by anyone, just better.

―Good enough‖ is a judgment relative to the ability of the Town to defend a

decision on the most important issues to the Town (versus existing ords).

• Absent a staff, the PC & HLC have become your experts. Please ask us,

first. We’ll do our best to walk with you through to find an answer…our job.

• Short responses for the 5 ―scenarios‖ follow to begin our discussions today.

If these trigger other questions, please ask.

a) ….hotel properties are sold to another developer before there is a concept

plan or project permit application?

PC Short Answer to begin discussions – Same as today, any ZO applies to all

private properties no matter who is the owner or the developer. Changes in ownership

do not affect either the ZO terms or the zoning assigned by Council………

b) ….all or some selected developer-owned properties are sold after a project

is approved and begun, but before it is complete?

PC Short Answer to begin discussions – No change to current practice, a permit

is granted to the owner of a particular property identified in the application. The

permit cannot convey upon a sale of the property and the permit is void. No work can

continue until a new application is approved for the new owner. Also see next Short

Answer……….

c) ….the project is abandoned after the project is begun?

PC Short Answer to begin discussions The Town is unprotected under current

ordinances. In Part 17 we have proposed to add a Performance Bond requirement

for all projects larger than $500K and a letter of credit for the full value of the project.

This language was taken from the SWM draft ordinance for consistency (see

1705.05 as proposed)……….. 11


d) ….a developer fails to meet the requirements of an approved project?

PC Short Answer to begin discussions – No project is complete until final

inspection is approved by the Town inspector. The project cannot be put to use.

Meanwhile any bonds and letters of credit are not released until the Town approves

the final inspection. There can be fines for issues that arise during interim inspections

and a stop work order is typically very costly to a builder/developer……….

e) ….any property owner inside the East Ridge Promontory Overlay District

wants to build something on a vacant lot or to add to existing buildings?

PC Short Answer to begin discussions – Unless the overlay terms explicitly speak

to that particular property, this is where the underlying zoning comes into play. For

example, if the underlying zoning is residential (as most vacant lots are likely to be) the

only allowed construction would be a residential unit as specified elsewhere in the

ordinance. If commercially zoned, those underlying regulations would apply. However,

since the property is within the overlay, it would require a Concept Plan Review before

an application can be submitted for any project larger than $100K……….

f) ….Other “scenarios” or “what ifs” for discussion today or in the future? 12


1. What if we eliminate all Conditional Uses and relied on Variances?

PC Short Answer to begin discussions – Very unusual because it surrenders the

Town’s ability to carefully describe what could be allowed and to apply specific terms

that must be met for BZA approval. Under WV law, variance criteria for approval are

proscribed and are very generic. The BZA would have little guidance from the Town to

apply if everything above permitted uses were a variance. Moreover, the Court would

have no Town guidance if a BZA decision were to be contested………..

2. What if we raise the Permitted Uses?

PC Short Answer to begin discussions – Possible. Permitted Uses generally signal

what the Town says are acceptable Uses without any special requirements for

approval. This offers a simpler and less risky approach for an applicant because

approval is “administrative” and often can be done by an individual appointed to do so

with specified authorities………..

Longer answer – How the Permitted Use numbers were set………..

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So, what might be alternatives to the current PC proposal?…..by 4 examples

3. What if we eliminate the 160 room cap?...or change it?

PC Short Answer to begin discussions – Elimination of the cap is possible without

legal issue, however, it means we do not care about the number of rooms and must

rely entirely upon the other constraints of footprint, height, setbacks, design, etc. to

control size. That’s OK, but the BZA would have no grounds to limit the number of

rooms (same situation as in a house project, for example)………….

Short Answer#2 – Change is possible of course, however, it must not appear to be an

arbitrary or capricious decision, should we be challenged. A different cap, smaller or

larger, should be backed by simple reasoning similar to that provided in the PC Study

& Findings Report. The PC undertook that study & analysis to provide a rationale for

the Town that would help withstand a legal challenge, as advised by our attorney…….

Longer Answer - The simple PC analysis behind a room cap of 160 rooms……..

4. What if we alter the proposed overlay boundaries?

PC Short Answer to begin discussions – Of course change is possible, however, it

also must not appear to be an arbitrary or capricious decision, should we be

challenged. For this reason, the PC established a strategic “framework” and working

“guidelines” from a Town perspective before drawing any recommended

boundaries.…….

Longer Answer – The PC “framework” and “guidelines”…..

5. Other alternatives to discuss today or in the future?14

So, what might be alternatives to the current PC proposal?…..by 4 examples

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