The purpose of this subchapter is to establish standards and policies for specific uses in all districts that require particular considerations. These regulations will supplement general development standards by establishing uniform criteria for each use—whether a permitted use by right or a conditional use—and are set forth to achieve compatibility with the principal uses permitted in a zoning district. The provisions for this subchapter shall apply in addition to any other applicable zoning regulations.

(Ord. 301, passed 8-18-2022)

      (1)   Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter and sexual assault and exploitation.

      (2)   Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.

      (3)   Each of the foregoing negative secondary effects constitutes a harm, which the city has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the city’s rationale for this section, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the city’s interests in regulating sexually oriented businesses extend to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the city. The city finds that the cases and documentation relied on in this section are reasonably believed to be relevant to said secondary effects.

   (C)   No such adult establishment shall be located less than 1,000 feet from a school zone, place of worship, library, day care center, civic building, park, historic district, dwelling, lot with residential districting, or other adult establishment as measured from front door to front door along the curb line of public streets providing access.

   (D)   All doors, windows, and other apertures shall be located and covered or screened with opaque glazing to discourage and prevent visibility or viewing of the interior.

   (E)   No exterior signage, building element, advertisement, display, or other promotional material shall be pornographic in nature or convey any such idea or element to specified anatomical areas, as defined in this code.

   (F)   In the event that an activity or business which might fall under a use category other than adult business is combined with or includes activities which constitute an adult bookstore, adult movie theater or movie house, or adult entertainment, as defined herein, then such activity or business shall constitute an adult business and shall be governed by those provisions in this code applicable to adult business uses, in addition to those provisions that govern the combined use.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   The minimum distance between any buildings, including accessory uses, and any residential district shall be 50 feet.

   (B)   Exterior lighting shall be shielded so that it is deflected away from adjacent properties and from passing motorists.

   (C)   A fence with a minimum height of six feet shall be provided along the interior side and rear property line, when adjacent to a dwelling, to protect the dwelling from light and noise and eliminate blowing debris, and to protect adjacent property values. The fence shall be constructed of masonry, concrete, wood or other similar materials.

   (D)   All of the area to be utilized by the washing and drying operations, including all ingress and egress areas, shall be paved with concrete, asphalt or asphaltic concrete.

   (E)   Where such use is located adjacent to residentially zoned property or property used for residential purposes, hours of operation shall be limited to between 6:00 a.m. and 10:00 p.m.

   (F)   Two off-street waiting spaces for each car washing device or stall are required, or two off-street waiting spaces for an assembly line type washing establishment, and two parking spaces at the end of each washing bay for drying and hand finishing vehicles.

   (G)   Audible electronic devices such as loudspeakers, automobile service order devices, and similar instruments, on-site lighting, and drive-through lanes shall be designed and located such that noise, exhaust fumes, and stray light shall not unreasonably impact adjacent properties.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   The only vehicles which may be stored outside in connection with the business include:

      (1)   Customer vehicles awaiting service may be stored outside for a period not to exceed two weeks and a work order or some other written proof must be provided to show that the vehicle is actually awaiting service.

      (2)   Employees’ personal vehicles used for travel to and from work.

      (3)   A vehicle used in connection with the auto repair operation, such as a wrecker.

   (B)   Vehicles which may not be stored outside are:

      (1)   Inoperable vehicles which are not awaiting service.

      (2)   Inoperable vehicles which are being scrapped or used for replacement parts for another vehicle being repaired.

      (3)   Operable vehicles not awaiting service and not used in connection with the business.

   (C)   No portion of an automotive repair or service station or any part of their appurtenances or accessory uses shall be placed within 50 feet of any residential dwelling.

   (D)   Audible electronic devices such as loudspeakers, automobile service order devices, and similar instruments, on-site lighting, and drive-through lanes shall be designed and located such that noise, exhaust fumes, and stray light shall not unreasonably impact adjacent properties.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   A bed and breakfast inn may or may not offer ancillary services only to guests such as providing breakfast, private parties, and evening and lunch meals; holding private outdoor events such as weddings, fundraising or civic events for local clubs, and special dinners or meals; and operating gift shops.

   (B)   All private residences used as bed and breakfast inns shall be virtually indistinguishable from surrounding residential units.

   (C)   Signs for residences used as a bed and breakfast inn are subject to the sign regulations for signs accessory to dwellings.

   (D)   Cooking facilities within bedrooms are prohibited.

   (E)   A private residence used as a bed and breakfast inn II shall have a minimum heated gross floor area of 2,500 square feet.

   (F)   A bed and breakfast inn I shall not employ individuals other than a permanent resident of the private residence. A bed and breakfast inn II may employ one individual other than a permanent resident of the private residence.

   (G)   All bed and breakfast inns shall comply with the provisions of W.Va. Code § 29-3-16c, Safety Standards for Bed and Breakfast Establishments.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   All childcare providers, whether state or privately operated, shall obtain a license from the West Virginia Secretary of State and the Department of Health and Human Resources. Each facility shall also be inspected by the Zoning Officer and Fire Marshal to ensure the safety of children and employees.

   (B)   A facility shall provide a minimum of 35 square feet of usable space per child. Any rooms or areas that have not been approved for the use of children shall be inaccessible. No activity space may be created in the basement of a structure unless expressly approved by the Fire Marshal.

   (C)   A secured outdoor activity area must be provided by the facility allowing a minimum of 75 square feet of space per child. Should the minimum space not be available, a rotating outdoor activity schedule shall be established to meet the minimum requirements and ensure that each child be afforded outdoor playtime every day, weather permitting.

   (D)   The outdoor activity area noted above shall be fenced with a minimum of six-foot high fence. All play equipment shall be located in the fenced areas in the rear or side yard. All gates shall be self-latching.

   (E)   Parks may be used to meet outdoor activity requirements if located immediately adjacent to the facility.

   (F)   Child day care businesses operated from a residence shall be operated by a permanent resident. No changes to the exterior of residences may be made for a child day care business operated from a residence except changes necessary for safety improvements.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   All dog day care facilities must comply with the following criteria:

   (A)   The hours of operation shall be limited daily any time between 7:00 a.m. and 9:00 p.m.

   (B)   Dogs may be groomed, trained, exercised, and socialized, but not kept or boarded overnight, bred, sold, or let for hire.

   (C)   There shall be no more than 30 dogs on the premises at one time.

   (D)   Provide indoor and/or outdoor recreational areas for dogs. Indoor recreational area shall be at least 100 square feet per dog, and outdoor recreational area shall be at least 150 square feet per dog.

   (E)   Provide sight-obscuring fencing for all on-site outdoor recreation areas. The fence shall provide full containment for the dogs and be secured at all times. The fence structure shall be deep enough and secured to the ground to prevent escape and high enough to prevent dogs from jumping or climbing over. The fence shall comply with all fence provisions in this chapter.

   (F)   If there is a grooming facility on site, it must be physically separated from primary enclosure areas and food storage.

   (G)   Feces, hair, dirt, debris, and food waste must be removed at least daily or more often if necessary to prevent accumulation and to reduce disease hazards, insects, pests and odors.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   The following parking standards shall apply to all drive-up windows and drive-through uses permitted by this chapter:

   (A)   The use shall not require an additional curb-cut in the pedestrian right-of-way;

   (B)   Public address speakers, on-site lighting, and drive-through lanes shall be designed and located such that noise, exhaust fumes, and stray light shall not unreasonably impact adjacent properties.

   (C)   Minimum queue spaces for drive-up windows and drive-through:

      (1)   Bank teller lane: three.

      (2)   Automated teller machine: two.

      (3)   Restaurant drive-through: four.

      (4)   Car wash stall, automatic: two.

      (5)   Car wash stall self-service: two.

      (6)   Gasoline pump island: one.

      (7)   All other retail uses: three.

   (D)   Each queue space shall be a minimum of ten feet wide by 20 feet long in size. Each queue lane shall be clearly defined and designed so as not to conflict or interfere with other pedestrian or vehicular traffic using the site.

(Ord. 301, passed 8-18-2022) Penalty, see §152.999

   (A)   A permit is required for each mass gathering event.

   (B)   The applicant shall be the owner or co-owner of the property. An owner or a representative of the owner shall be present on the property at all times during the mass gathering event.

   (C)   Mass events shall occur outdoors, in temporary structures, or existing permanent structures. New permanent structures shall not be constructed for special events.

   (D)   Mass gathering events shall cause no alteration to land including, but not limited to, grading, filling, or paving.

   (E)   The duration of each mass event shall not exceed three consecutive days, provided activities shall only occur between the hours of 10:00 a.m. and 11:59 p.m.

   (F)   Within any single calendar year, a parcel may host no more than four mass events.

   (G)   A parking plan shall be submitted as part of the permit process. Adequate on-site parking areas shall be provided to accommodate the number of vehicles expected. Off-site parking areas are permitted if the applicant provides written authorization from the property owner for those sites. The applicant shall post signs safely directing people to the parking sites. There shall be no parking on any public roads.

   (H)   Local emergency medical services (EMS) shall be notified of all mass events. The holder of the mass event shall provide EMS with the number of people projected to attend.

   (I)   All garbage shall be removed from site within five days.

   (J)   Trained security is required on site for all mass events.

   (K)   All lighting and sound shall be aligned so as to minimize impact on nearby residents and shall conform to requirements of this code and other applicable city ordinances.

   (L)   The site shall provide potable water supply and proper sanitation facilities.

   (M)   The sale of alcohol is permitted. All sales of alcohol shall be regulated by the West Virginia Alcohol Beverage Control Administration.

   (N)   The owner of the property shall procure a liability insurance policy. Proof of the liability insurance in the minimum amount of $2,000,000 per occurrence and which lists the city as co-insured on the policy shall be submitted with the permit application.

   (O)   All mass gathering events shall contact the following agencies: the City of Elkins Police Department, a West Virginia licensed EMS provider, licensed garbage removal company, licensed towing company, the County Health Department (approval or permit required), West Virginia Division of Highways (approval or permit required), and County Homeland Security.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   No more than four garage sales, yard sales, or rummage sales are permitted within any 12-month period for each residence.

   (C)   Sales must be contained within the individual’s property and may not encroach into a public right-of-way.

   (D)   Each garage sale shall not be permitted to last more than 72 hours.

   (E)   A garage sale shall not include the sale of new merchandise.

   (F)   Tents may be used during the event subject to division (C) above and must be removed immediately following the conclusion of each event.

   (G)   All items must be removed from the exterior of the premise at the end of the sales event.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   Parking and loading facilities and signage shall be screened from adjoining residentially zoned properties.

   (B)   Display, sale, or repair of motorized nursery or garden equipment shall not be permitted.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   The greenhouse shall not be located in the front yard.

   (B)   Greenhouse shall not create offensive odors or dust.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   The business activity must satisfy the following requirements:

   (A)   The home-based business shall only employ individuals residing in the dwelling.

   (B)   A home-based business shall not change the residential character of the dwelling and shall not detract from the residential character of the neighborhood.

   (C)   The business activity shall be compatible with the residential use of the property and surrounding residential uses.

   (D)   A home-based business shall not display or sell retail goods or stockpile inventory of a substantial nature.

   (E)   There shall be no outside appearance of a business use, including, but not limited to, parking or lights, except signs, as permitted in §§ 152.220 through 152.232, provided signs meet all requirements in §§ 152.220 through 152.232.

   (F)   The business activity may not use any equipment or process which creates noise, vibration, glare, fumes, odors, or electrical or electronic interference, including interference with radio or television reception, which is detectable in the neighborhood.

   (G)   The business activity may not generate any solid waste or sewage discharge, in volume or type, which is not normally associated with residential use in the neighborhood.

   (H)   The business activity shall be conducted only within the dwelling and may not occupy more than 25% percent of the gross floor area.

   (I)   No traffic shall be generated by such home-based business in excess of that normally associated with residential use.

   (J)   The business may not involve any illegal activity.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   The business or commercial activity conducted as a home-based business must satisfy the following criteria:

   (A)   Customer, client, patient, or other traffic shall be restricted to 8:00 a.m. to 6:00 p.m.

   (C)   The business or commercial activity shall not change the residential character of the dwelling and shall not detract from the residential character of the neighborhood.

   (D)   The home-based business shall not employ individuals living outside the dwelling to physically work at the dwelling, except bed and breakfast inns may employ one nonresident employee to physically work at the bed and breakfast inn.

   (E)   The business or commercial activity may not use any equipment or processes, which create noise, vibration, glare, fumes, odors or electrical or electronic interference, including interference with radio or television reception, which is detectable in the surrounding neighborhood.

   (F)   The business or commercial activity may not generate any solid waste or sewage discharge, in volume or type, which is not normally associated with the use of a dwelling in the neighborhood.

   (G)   The business activity may not occupy more than 25% percent of the gross floor area of the residence.

   (H)   The business may not involve any illegal activity.

   (I)   Any outdoor display or storage of materials, goods, supplies or equipment shall be prohibited, other than the signs.

   (J)   No traffic shall be generated by such home occupation in greater volumes than would normally be expected in a residential neighborhood, and any need for parking generated by the conduct of such home occupation shall be met by off-street parking.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   The incinerator is located so as to minimize incompatibility with the character of the surrounding area and to minimize the effect on the value of the surrounding property.

   (B)   The incinerator shall not be located within 15 feet of any building or structure and shall be positioned so that there is not direct exposure to buildings, wood fences, or piled combustible materials in the event of failure of the spark arrestor. The incinerator shall be located so that a nuisance is not created by reason of smoke, smell, or noise.

   (C)   Each incinerator must be set back a minimum of 500 feet from each property line not adjacent to lands used or zoned for industrial purposes. A visual buffer must be established and maintained between the incinerator and any existing residential, commercial, or other non-industrial land use immediately adjacent.

   (D)   Each incinerator must be designed so that it meets and continues to meet all applicable rules, regulations and requirements of the applicable state and federal regulatory agencies. Each incinerator must be fully permitted by each such agency prior to construction and/or continued operation.

   (E)   Each incinerator must be designed with adequate on-site controls and facilities to prevent and contain fires.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   The following supplemental provisions apply to all medical cannabis organizations or as otherwise specified herein.

   (A)   No medical cannabis dispensary shall be located within 1,000 feet of the property line of a public, private or parochial school or a daycare center.

   (B)   No more than five medical cannabis dispensaries are permitted within the city. No medical cannabis processing facilities and no medical cannabis growing facilities are permitted within the city.

   (C)   There shall be no emission of dust, fumes, vapors, noise, glare, vibration, or odors into the environment from the premises of a medical cannabis organization.

   (D)   The only medical cannabis uses permitted under this chapter are those expressly defined and permitted herein. Medical cannabis organizations may not be combined with other uses.

   (E)   Medical cannabis organizations shall possess all applicable state licenses.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   No activities that involve charging admission or that are solely performance activities are permitted as part of this use.

   (B)   The owner or his or her designated representative shall be physically present on the property at all times during receptions.

   (C)   All outdoor receptions, temporary structures, and parking areas associated with a reception shall be located 150 feet to any property line.

   (D)   Lighting may be used for the duration of the reception only and may not shine or produce glare on adjacent properties.

   (E)   The owner(s) shall ensure that ingress and egress during the reception to the venue does not cause congestion on any public road.

   (F)   The owner(s) shall be responsible for the following: (1) sanitation (municipal waste and recycling) facilities at the reception commensurate with the number of patrons attending and (2) sanitary sewer facilities at the reception commensurate with the number of patrons attending.

   (G)   The operation of the use shall at all times comply with all federal, state, and local laws and regulations.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   Salvage yards shall be subject to the following regulations:

   (A)   The minimum lot area shall be one acre.

   (B)   An eight-foot tall fence shall be placed along the entire perimeter of the property. Fencing shall be at least 90% opaque.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   Tourist or trailer camps shall be located on at least one acre of land and shall provide usable plots measuring no less than 1,200 square feet.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

      (1)   No more than three hives, each with only one swarm, are allowed on lots of less than 10,000 square feet; and

      (2)   Hives shall not be located within 25 feet of any lot line except when situated eight feet or more above the grade immediately adjacent to the grade of the lot on which the hives are located or when situated less than eight feet above the adjacent existing lot grade and behind a solid fence or hedge six feet high parallel to any lot line within 25 feet of a hive and extending at least 20 feet beyond the hive in both directions.

      (3)   On any lot where a hive is located, shall be posted a honeybee caution sign in or near the apiary.

      (1)   A dwelling shall be located on the same lot as the fowl.

      (2)   Fowl shall be kept within a building, coop, or enclosure, and within a fully enclosed and fenced rear or side yard such that fowl may not be at large within the city. The building, coop, or enclosure in which the fowl are kept must be at least five feet from any dwelling, other than the dwelling associated with the accessory use. The building, coop, or enclosure shall be durably constructed and maintained in conformance with the West Virginia State Building Code.

      (3)   A permit is required for keeping fowl within the city. A permit may be obtained from the City Clerk after application to the Zoning Officer and an inspection performed by the Zoning Officer.

      (1)   Livestock shall not be kept within the city.

      (2)   Roosters shall not be kept within the city.

      (3)   Slaughtering and processing fowl are prohibited within the city, except where such activity occurs within a butcher shop.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   Vehicle, boat, and marine repair, service, sales, and rental uses shall be subject to the following conditions:

   (A)   Outdoor storage areas shall be located within the side or rear yards and screened from adjacent properties with fencing or with a landscape buffer area, except that new and used vehicles and boats currently being offered for sale, rent, or lease may be located in the front yard, subject to yard, setback, and other requirements of this code.

   (B)   Activities involving excessive noise shall be conducted entirely within the confines of a building sufficiently sound-insulated to effectively confine the noise.

   (C)   No vehicle, boat, or marine repair, service, sales, and rental uses shall be located less than 100 feet from a residential district.

   (D)   Vehicle, boat, and marine sales uses shall have a minimum of 6,000 square feet of outdoor display area.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

   (A)   The limited video lottery establishment shall not be located within 1,000 feet of a residential zone, church or place of worship, school, park, community or recreation facility, or other limited video lottery establishment.

      (1)   The 1,000 feet from a school, park, community or recreation facility, or residential zone shall be measured in a straight line from the nearest point of the wall of a limited video lottery establishment to the nearest property line of a school, park, community or recreation facility, or residential zone.

      (2)   The 1,000 feet from a church or place of worship shall be measured in a straight line from the nearest point of the wall of the portion of the building in which a limited video lottery is conducted to the nearest point of a wall of a building in which church worship services or related activities are conducted.

      (3)   The 1,000 feet from another limited video lottery establishment shall be measured in a straight line from the nearest point of the wall of the portion of the building in which a limited video lottery is conducted to the nearest point of a wall in which another limited video lottery may be conducted.

   (B)   Organizations with a valid club license are limited to operating a maximum of ten LVL machines. Licensed clubs or taverns are limited to operating a maximum of five LVL machines.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999

      (1)   Small wind energy towers shall maintain a galvanized steel finish, unless FAA standards require otherwise, or if the owner is attempting to conform the tower to the surrounding environment and architecture, in which case it may be painted to reduce visual obtrusiveness. A wind energy tower may be erected, maintained, or operated on or as an attachment to a building on a lot. A photo simulation may be required by the city.

      (2)   Wind energy facilities shall not be artificially lighted unless required by the Federal Aviation Administration (FAA) or appropriate authority.

      (3)   No tower may be used to display a sign.

      (4)   The applicant shall provide evidence that the proposed height of the wind energy facilities tower does not exceed the height recommended by the manufacturer or distributor of the system. The tower height shall not exceed a maximum height of 70 feet on a parcel. When situated on or attached to a building, the total height shall not exceed 70 feet. The building itself shall otherwise conform to the applicable height requirement under this section.

      (5)   The applicant shall provide evidence that the provider of electric utility service to the site has been informed of the applicant’s intent to install an interconnected, customer-owned electricity generator, unless the applicant intends, and so states on the application, that the system will not be connected to the electricity grid. Notification will take place by having the electric utility provider sign the conditional use permit application, but such signature does not construe approval for net metering by the electric utility.

      (6)   Wind energy facilities shall adhere to noise limits as established by city ordinances. These levels, however, may be exceeded during short-term events such as utility outages or severe windstorms.

      (7)   The applicant will provide information demonstrating that the system will be used primarily to reduce on-site consumption of electricity.

      (8)   The minimum distance between the ground and any protruding blade utilized on a small wind energy facility shall be 15 feet, as measured at the lowest point of the arc of the blades. The lowest point of the arc of the blades shall be ten feet above the height of any structure within 75 feet of the base. The supporting tower shall be enclosed with a six-foot tall fence or the base of the tower shall not be climbable for a distance of ten feet.

      (9)   The applicant will provide proof of adequate liability insurance for a small wind energy facility. Whether or not the applicant is participating in the net metering program, the applicant will be required to meet the insurance coverage requirements as set forth in W.Va. Admin. Code § 150-33-4 (2011).

      (10)   The small wind energy facility generators and alternators should be constructed so as to prevent the emission of radio and television signals and shall comply with the provisions of Section 47 of the Federal Code of Regulations, Part 15 and subsequent revisions governing said emissions.

(Ord. 301, passed 8-18-2022) Penalty, see § 152.999