Martinsburg City Zoning Code
ARTICLE 1329
Supplemental Regulations
1329.00 PURPOSE.
The purpose of these supplemental regulations is to set specific conditions for various Uses, classification of Uses, or areas where problems are frequently encountered, and to aid applicants in the permitting process. Use requirements contained elsewhere in this Ordinance apply to all Uses and Structures, whether or not specifically listed in this Article. Likewise, the provisions of this Article shall not be interpreted as a waiver of the application of City Building Code Requirements or any other requirements of the City or the State of West Virginia. Certain of the following supplemental regulations or provisions thereof, to the extent specified therein, are applicable to any and all Uses of land or Structures, including existing Uses and Structures.
(Ord. 2021-07. Passed 7-21-21.)
1329.01 ACCESSORY USES AND STRUCTURES.
(a) In addition to the other applicable requirements of the City, Accessory Uses and Structures shall also be governed by the following provisions:
(1) In all Zoning Districts, any Accessory Use or Structure shall not be located closer than five (5) feet to an Alley line or side or rear Lot line.
(Ord. 2021-07. Passed 7-21-21.)
1329.02 DENSITY STANDARDS.
(a) The following density standards apply to all Zoning Districts:
(1) Land donated for a public facility may be counted as part of the Net Buildable Land Area when calculating the density of a development.
(2) Density Bonuses. To encourage better design practices in developments, the City Planning Commission shall allow the density bonuses listed below when the specified criteria are satisfied. Such density bonuses may be used to increase the Maximum Density of a development as specified herein for the underlying Zoning District:
A. Open Space. For every five percent (5%) of the total usable land that is provided as Open Space above the minimum required Open Space, one (1) Dwelling Unit per acre density bonus may be added, up to two (2) additional Dwelling Units per acre. This density bonus is subject to the provision that the additional Open Space shall be located outside of Flood Plains and wetlands;
B. Public Park. If a public park, versus a private park, is provided as part of a development project, a density bonus of one (1) Dwelling Unit per acre may be applied; and
C. Best Management Practices (BMPs). If in the opinion of the City Engineer/Planning Director or designee a development substantially exceeds the minimum requirements of City’s Stormwater Management Control Standards of the Martinsburg Stormwater Management Ordinance, a density bonus of one (1) Dwelling Unit per acre may be applied, provided that the development will continue to substantially exceed the minimum requirements.
(Ord. 2021-07. Passed 7-21-21.)
1329.03 DONATION CONTAINERS, UNATTENDED.
(a) The following regulations apply to donation containers that accept new or gently used clothing items:
(1) Size. The Donation Container may not be larger than seven (7) feet tall, six (6) feet wide or six (6) feet long.
(2) Maximum Number. Donation Containers are limited to a maximum of two (2) per property located within the Side Yard and Rear Yard areas and may not exceed a use area within these locations of one hundred twenty (120) square feet.
(3) Location and Placement. Donation Containers are only permitted on Civic, Institutional, and commercial properties 40,000 square feet or greater and may only be placed on such properties with written permission from the property owner. Such written permission must be made available to the City for review upon request.
(4) Maintenance.
A. Donation Container items must be collected on a regular basis or within 48 hours following a property owner’s request.
B. Donated items or any refuse may not be left outside the containers for more than 24 hours and must be removed by the box owner/operator or property owners.
(5) Identification. Each Donation Container must be properly identified and labeled with the following information:
A. Name and telephone number of the owner/operator;
B. Entity responsible for collecting donated items and any refuse left outside the container; and
C. Type of donated items accepted and a statement prohibiting liquids and dumping. (Ord. 2021-07. Passed 7-21-21.)
1329.04 ENCROACHMENTS.
(a) The following regulations are intended to assist applicants and business owners in establishing attractive and safe Encroachments that benefit both the downtown business community and the citizens that enjoy those public spaces:
(1) General Requirements.
A. The City’s goal is to maintain the highest standards of accessibility and safety while achieving an attractive and functional design within its downtown area;
B. In general, Encroachments should complement public Use and improvements. In no case shall Encroachments exclude the public from any public Sidewalk or Street;
C. Allowed Encroachments shall comply with all requirements of this Ordinance and the City’s Codified Ordinance; and
D. This subsection applies to any and all Uses of land or Structures, including existing Uses and Structures.
(2) Location and Dimensional Requirements.
A. Encroachments may be allowed where it can be determined by the City Planning Department that the Encroachment would not result, individually or cumulatively, in a narrowing of the Sidewalk such that important functional attributes of the downtown, (e.g., ability of pedestrians to stroll side-by-side and to pass comfortably for significant stretches, lingering and window shopping) are not jeopardized. The location and dimensions of any item located in a public place shall meet the minimum guidelines set forth herein and any other applicable local, state or federal law or regulation;
B. Encroachments must maintain a clear path of no less than five (5) feet. The City Engineer/Planning Director or designee may permit paths of travel of less than five (5) feet in instances where safe access can be determined;
C. Encroachments shall not block safe access to businesses, parking spaces, bike stalls, or other spaces required by local, state or federal building or safety codes;
D. Encroachments shall not encroach into the areas near corners of Sidewalks or where crosswalks are present. This area shall be defined with a 15-foot area, beginning near the crosswalk or curb cuts;
E. Tables shall not exceed forty-two (42) inches in width at the greatest dimension;
F. Chairs shall not extend into the required accessible walkway at any time. Chairs must be at a scale appropriate to the size of the table or space available for seating;
G. Portable outdoor heating devices and permanently mounted heating devices shall be reviewed by the City Engineer/Planning Director or designee for safety and aesthetics and require either a Use and Occupancy Permit or Building Permit as applicable;
H. The City Council shall review any items placed in the public right-of-way; and
I. Encroachments shall not intrude onto other private properties.
(3) Maintenance and Operational Requirements.
A. Maintenance of Encroachments shall be the sole responsibility of the owner of the Encroachment;
B. Any item permitted to be placed in the public right-of-way shall be maintained in a safe manner so as not to obstruct pedestrian access to public Sidewalks, access ramps or doorways. Movable items, such as chairs, shall always be positioned to prevent obstruction of access routes. The permitted item shall always be relocated to the appropriate location if moved by patrons;
C. All materials shall be well maintained without stains, rust, tears or discoloration. Materials that show signs of significant wear/age shall be replaced; and
D. All Encroachments shall be constructed of durable fade resistant materials.
(4) Colors and Materials.
A. All items located on the public Sidewalk shall be constructed of durable materials appropriate for use in the public rights-of-way. Folding chairs, lightweight materials, deteriorated, ultraviolet ray damaged, splintered or other similar furniture will not be approved or placed in the rights-of-way. Sealed or painted metal or wood tables are recommended; and
B. Encroachments shall be complementary in material, color and design to the Buildings they serve and to which they are adjacent.
(5) Umbrellas and Outdoor Furniture. Umbrellas shall be installed and maintained to provide pedestrian clearance by maintaining seven (7) feet of clearance from the Sidewalk to the lowest edge of the umbrella. Umbrellas shall not exceed a maximum height of nine (9) feet from the base to the top portion of the pole.
(6) Planters and Landscaping.
A. Private planters should be kept to a minimum and shall be placed against Buildings to accent Building entrances and openings. Private planters should complement but not interfere with or be placed adjacent to City-maintained planters located along the Street curb. Planters shall not be used to define seating areas or otherwise cordon off public Sidewalk for private use;
B. Plant material shall be of high quality and shall always be maintained in a viable condition; and
C. Debris or litter caused by planters or nearby landscaping shall be maintained or cleaned by the responsible business or property Owner. Debris, stains or litter shall be cleaned or removed by the responsible business or property Owner.
(7) Other Encroachment Types. Other types of Encroachments, not anticipated by this Ordinance, may be considered and permitted by the City Planning Department, but must comply with the purpose and intent of these requirements. (Ord. 2021-07. Passed 7-21-21.)
1329.05 FENCES AND WALLS.
(a) (1) General Requirements.
A. A fence permit shall be obtained for the erection of fences less than seven (7) feet in height. A building permit shall be obtained for the erection of fences greater than or equal to seven (7) feet in height, walls and retaining walls greater than or equal to four (4) feet in height. Normal maintenance of fences and walls or replacement of like materials shall be excluded from the permit process.
B. No fence or wall shall obstruct the flow of stormwater, except as part of a City-approved stormwater system.
C. Fences and walls shall not be permitted within any right-of-way, drainage or storm water management easement, clear view triangle area, within the site visibility area adjacent to railroads, or below the 100-year Flood Plain of any lake, river, or wetland.
D. Fences and walls shall be exempt from Building Lines and Yard requirements except as follows:
1. The proposed fence or wall may not adversely affect the safety of vehicular or pedestrian traffic or cause an obstruction to vision and/or a required Sight Distance triangle;
2. Fences or walls located on a cul-de-sac Lot, Pipe Stem (Flag) Lot or other Lot located on a dead-end Street shall not extend beyond the front porch or principal face of any principal Structure located on any such Lot; and
3. Rear Yard fences shall not extend beyond the front principal face of any principal Structure on a Lot.
E. To avoid creating any possible no-maintenance zone(s), perimeter fences and walls shall be installed along and up to a property line but within the property limits, except, however, when a fence is shared by adjoining properties it shall be installed on the property line.
F. Fences and freestanding walls (other than a necessary retaining wall) in Residential and Mixed-Use Districts (as listed in Section 1325.01
) shall not exceed seven (7) feet in height for Rear Yard applications and shall not exceed forty-eight (48) inches in height for Front Yard fences. Front Yards shall be measured from the principal face of a Dwelling.
G. Fences and freestanding walls (other than a necessary retaining wall) in the Medical-Institutional District shall not exceed ten (10) feet in height for Rear, Side and Front Yard applications.
(2) Maintenance and Materials.
A. Any fence or wall shall be durably constructed and well-maintained. Privacy fences shall be constructed so that the finished side of the fence faces toward abutting properties and rights-of-way unless the fence is not visible from adjoining property. Fences and walls that have deteriorated shall be replaced or removed.
B. A fence shall not be constructed out of fabric, Junk, Junk Vehicles, appliances, tanks, or barrels.
C. Electric fences, except for in-ground pet fencing, are prohibited in all Zoning Districts.
D. Barbed wire fences are prohibited in all Zoning Districts except, where the need is clearly demonstrated, for Civic and Institutional Use applications.
E. Razor fences are prohibited in all Zoning Districts.
(Ord. 2021-07. Passed 7-21-21.)
1329.06 HELIPORTS.
(a) In addition to the other applicable requirements of the City, Heliports shall also be governed by the following provisions:
(1) Federal Aviation Administration Heliport Design Standards, Advisory Circular (AC) No: 150/5390-2C or current edition.
(2) Minimum Lot area shall be one (1) acre;
(3) A fence shall be installed around Heliports. Fences must be at least six (6) feet in height when located at ground level and be made of wire mesh;
(4) A landscaping screen shall be planted where abutting a residential Use and shall meet the applicable standards specified in the Subdivision and Land Development Ordinance; and
(5) The parking area must be located at least twenty-five (25) feet from residential Use. (Ord. 2021-07. Passed 7-21-21.)
1329.07 MURALS.
(a) In addition to the other applicable requirements of the City, Murals shall also be governed by the following provisions:
(1) Murals must not contain any discriminatory language, imagery or symbology, incite or encourage violence or public disorder, pornography, profanity, defamatory, obscene, treasonous content or be in violation of any other laws.
(2) Murals shall obtain a Mural Permit issued by the City Planning Department, and when located within the Historic District in conjunction with the Historic Preservation Review Commission, and must meet the following standards:
A. All applications for Murals shall be made on forms provided by the City Planning Department and shall contain an authorization by the Owner of the wall or structure the mural will be painted on or affixed to and a draft of the proposed Mural including color and specification of materials (e.g., paint, tile, etc.).
B. Murals shall be applied to a removable surface that is fastened to the Structure’s wall.
C. The applicant may however be permitted to apply the mural directly to the Structure’s wall surface provided the applicant agrees to remove the mural as may be required through the sale of the property to a new owner.
D. Murals shall be applied using weather resistant paint or materials.
E. Murals shall not be designed as to constitute or create a traffic hazard as determined by the City Engineer/Planning Director or designee in consultation with the Chief of Police.
F. No part of a Mural shall exceed the height of the structure to which it is painted on or affixed to.
G. No part of a Mural shall extend more than six (6) inches from the plane of the wall upon which it is painted or affixed to.
H. No Mural may consist of, or contain, electrical or mechanical components, or changing images (moving structural elements, flashing or sequential lights, lighting elements, or other automated methods that result in movement, the appearance of movement, or change of mural image or message, not including static illumination turned off and back on not more than once every twenty-four (24) hours).
I. No Mural shall obstruct the exterior surface of any building opening, including, but not limited to, windows, doors, and vents.
J. Murals shall not be permitted in the SR Zoning District.
K. No Mural shall be arranged and illuminated in a manner that will produce a light intensity of greater than three (3) foot candles above ambient lighting, as measured at the property line of the nearest residentially zoned property.
L. Murals shall be maintained at all times. Repairs to a Mural shall not require a new application under this definition if the image or content of the Mural does not or only minimally change.
M. Murals advertising businesses, goods or services shall be considered a Sign and require a Sign Permit pursuant to Section 1331.02
of this Ordinance. (Ord. 2021-07. Passed 7-21-21.)
1329.08 NONCONFORMING USES.
(a) Except where otherwise provided in this Ordinance, any Use of land, a Lot, a Building or a Structure (including Signs) lawfully existing at the time of the adoption of this Ordinance or at the time this Ordinance is subsequently amended shall be deemed a Legally Nonconforming Use that may be continued without prohibition by this Ordinance as long as such Use is maintained, subject to the following provisions:
(1) Single-Family Detached Dwellings deemed Legally Nonconforming Uses in any Zoning District may continue to operate and expand on the same land area/parcel containing the nonconforming use on the date the use first became nonconforming provided that the expansion may not increase the degree of nonconformity. Such Dwellings shall be treated as principal Permitted Uses in that Zoning District;
(2) All other Alterations or additions to, or replacements, enlargements, extensions or expansions of, or changes in, Legally Nonconforming Uses shall be subject to review and approval by Board of Zoning Appeals, subject to the provisions of West Virginia Code Chapter 8A-7-10(c) pertaining to agricultural, industrial, and manufacturing Uses. In all Zoning Districts the Board of Zoning Appeals may approve the alteration or addition to, or enlargement, extension, or expansion of, a Legally Nonconforming Use provided such change is restricted to an additional area not exceeding thirty-five percent (35%) of the area of the existing Use, with the exception that no such change may be permitted for Junk Yards;
(3) Legally Nonconforming Uses may not change to a less appropriate Use or classification;
(4) Legally Nonconforming Uses may continue to operate as such through change of Ownership;
(5) If a Legally Nonconforming Use has ceased or been discontinued for one (1) year or more or otherwise been abandoned, then the nonconforming Use may not thereafter be reestablished and any and all Use of the land, Building, Structure (including Signs), or premises shall thereafter be in conformance with this Zoning Ordinance, subject to the provisions of West Virginia Code Chapter 8A-7-10(d) pertaining to natural resources extraction or harvesting, agricultural, industrial, and manufacturing operations, and duly designated Historic Landmarks, Sites, or Districts;
(6) Nothing in these regulations shall prevent the restoration or the thirty five percent (35%) expansion allowed under subsection (a)(2) above of a Building or Structure destroyed by fire, windstorm, explosion, flood, act of public enemy, accident, or other casualty while a Legally Nonconforming Use, or prevent the continuance of the Use thereof as it existed at the time of such destruction provided that a Building Permit is obtained and restoration begun within one (1) year of said destruction;
(7) When a portion of a property is deeded to a public entity for a public purpose it shall not cause the remaining portion of the property to be in violation of any part of this Ordinance; and
(8) Nothing in this Ordinance shall be deemed to make legal any Use otherwise prohibited by or illegal under applicable law.
(Ord. 2021-07. Passed 7-21-21.)
1329.09 NONCONFORMING LOTS.
A Nonconforming Lot is a lot that was subdivided before adoption, or amendment, of the Zoning Ordinance and which, after adoption or amendment of the Zoning Ordinance, does not meet the requirements of the district in which it is located. Notwithstanding limitations imposed by other provisions of this Ordinance, in any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single Lot of record at the effective date of adoption or amendment of this Ordinance. Such Lot must be in separate ownership and not of continuous frontage with other vacant lots in the same ownership. Where possible, contiguous parcels under common ownership shall be re-platted to create conforming Lots. This provision shall apply even though such Lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that yard dimensions and requirements (other than those applying to area or width, or both), of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the Board of Zoning Appeals.
(Ord. 2021-07. Passed 7-21-21.)
1329.10 NUISANCES.
(a) The following nuisance performance standards and restrictions shall apply for all non-residential Uses in any of the Zoning Districts.
(1) Control of smoke, dust, dirt, fumes, vapors, gases and odors. The West Virginia Air Pollution Control Standards shall be used to control the emission of smoke, dust, dirt, fly ash, fumes, vapors, gases, or odors.
(2) Noise.
A. At no point along a Residential or Mixed Use District (as listed in Section 1325.01
) or one hundred twenty-five (125) feet from the plant or operation property line shall the sound pressure level of any operation or plant (except as otherwise noted herein) exceed the decibel limits in the octave bands designated in Table 1329-1 below.
B. Sound levels shall be measured with a sound-level meter and associated octave band filter, manufactured in compliance with the standards prescribed by the American Standards Association.
Table 1329-1, Noise Level Standards
Octave Bands Frequency (cycles per second) | Maximum Permitted Sound Level (Decibels) Along Residential District Boundaries or 125 feet from Industrial Use property line | Maximum Permitted Sound Level (Decibels) Along Commercial District Boundaries or 125 feet from Industrial Use property line |
0 to 75 | 72 | 79 |
75 to 150 | 67 | 74 |
150 to 300 | 61 | 68 |
300 to 600 | 56 | 62 |
600 to 1,200 | 50 | 56 |
1,200 to 2,400 | 45 | 51 |
2,400 to 4,800 | 41 | 47 |
Above 4,800 | 38 | 38 |
C. Exemptions. The following shall be exempt from noise performance standards:
1. Noises of construction or maintenance activities;
2. Noises of safety signals, warning devices, and emergency pressure relief valves;
3. Transient noises of moving sources such as transportation Vehicles, including trains and aircraft;
4. Other noises not under the direct control of the property user; and
5. The Use of outdoor public address systems for any purpose shall be approved by the City Engineer/Planning Director or designee.
D. In addition to the noise performance standards specified above, the requirements of Martinsburg City Code Section 509.06, Noise Control, shall also apply.
(3) Vibration. Any Use creating intense earth-shaking vibrations shall be set back two hundred fifty (250) feet from a Residential or Mixed-Use District as listed in Article 1325
, Table 1325-1. No perceptible vibrations shall be permitted at the property line. Vibration caused by maintenance and construction activities is exempt.
(4) Glare and Heat.
A. All Uses shall minimize the production of light, heat or glare that is perceptible beyond any property line of the Lot from which the light, heat or glare is produced;
B. Glare, whether direct or reflected, such as from spotlights or high temperature processes, and as differentiated from general illumination, shall be not visible beyond the Lot line of the Lot on which the Use is located;
C. Exterior lighting, other than that essential for the safety and convenience of the users of the premises shall be prohibited. All exterior lighting shall be shielded in such manner that the level of light (i.e., measured in foot candles) is zero at common, adjacent Lot lines, except within commonly owned properties under unified management such as commercial centers; and
D. Except for within commonly owned properties under unified management such as commercial centers, no direct or sky-reflected glare, whether from floodlights or from temperature processes such as combustion or welding or otherwise, to be visible at the Lot line of the subject property shall be permitted. Furthermore, there shall be no transmission of heat or heated air to be discernible (by a healthy observer such as the City Engineer/Planning Director or designee or a designee) at the Lot line.
(5) Fire Hazards. No activity or operation shall be established which fails to meet requirements of National Fire Protection Association (NFPA) Life Safety 101: Fire Code standard.
(6) Radiation of Electrical Emissions, Radioactivity or Electrical Disturbance. Activities that may emit dangerous radioactivity beyond closed areas shall comply with State and Federal Codes. No electrical disturbances (except from domestic household appliances) shall be permitted to affect adversely, at any point, any equipment other than that of the creator of such disturbance.
(7) Electric, Diesel, Gas or Other Power. Every Use requiring power shall be so operated that any service lines, substation, etc., shall conform to the highest applicable safety requirements. They shall be constructed, installed, etc., so that they will be an integral part of the architectural features of the Building or, if visible from abutting residential properties, shall be concealed by evergreen planting.
(8) Sewage and Waste Treatment. All methods of sewage and industrial waste treatment and disposal shall:
A. Be approved by the Martinsburg Water and Sewer Department or applicable provider;
B. Meet requirements of the City Code if the Martinsburg Water and Sewer Department is receiving the effluent; and
C. Be in accordance with all applicable regulations.
(Ord. 2021-07. Passed 7-21-21.)
1329.11 OUTDOOR DISPLAY AND SALE OF MERCHANDISE.
(a) Outdoor Display and Sale of Merchandise shall be governed by the following provisions:
(1) Outdoor displays may not extend more than five (5) feet from the building façade and in no instance shall merchandise or other items for sale or advertisement be located beyond an established Street Line. In the case of Street Lines and Building Lines being coincident, there shall be no outdoor display;
(2) No outdoor display or sale of merchandise, whether upon public property or private property, shall be undertaken except in compliance with all conditions listed in this Section and the applicable Use and Occupancy Permit. Outdoor display and sales upon public Sidewalks and rights of way may be permitted only if vehicular and pedestrian circulation is not unreasonably restricted pursuant to the Encroachment requirements specified in Section 1329.04
;
(3) If associated with a Principal Use on a Corner Lot, only a single Frontage shall be utilized for accessory outdoor display purposes;
(4) Merchandise or other items, and all temporary structures used for outdoor display, shall be removed from the outdoor location or adequately secured when the store or business is closed;
(5) The merchandise displays shall be on racks or display counters that are of similar quality to those used in the store or business; and
(6) No Signage other than normal price markers the same size and design as those used on the interior shall be permitted.
(7) Types of Merchandise.
A. Outdoor displays shall be limited to single items or object displays or a few examples of items or goods sold in the store and must comply with all other standards specified herein;
B. Outdoor displays and sales may include items offered for sale by or incidental to the store or business upon whose property, or fronting the Sidewalk on which, the display and sale is conducted;
C. Outdoor display and sale of automobiles, motorcycles, boats, campers, Travel Trailers, Motor Homes, and other Vehicles or mobile equipment shall be located on paved areas and may not occupy required parking spaces. No display of any kind of such items is permitted on any public Sidewalk or other right of way; and
D. Garden materials may be displayed and sold outdoors by hardware and building supply stores, nurseries, and other businesses on its property, provided the items do not occupy required parking spaces.
(Ord. 2021-07. Passed 7-21-21.)
1329.12 RIPARIAN BUFFERS.
(a) The requirements of this subsection shall apply to Riparian Buffers in the City, which shall be provided and maintained in accordance with the United States Department of Agriculture’s Chesapeake Bay Riparian Handbook: A Guide for Establishing and Maintaining Riparian Forest Buffers 6, which is hereby adopted by reference. Additional requirements for protecting Riparian Buffers are as follows:
6 Roxane Palone and Albert Todd, Chesapeake Bay Riparian Handbook: A Guide for Establishing and maintaining Riparian Forest Buffers (Washington, D.C.: U.S. Department of Agriculture, Forest Service, 1998), available online at https://www.chesapeakebay.net/content/publications/cbp_13019.pdf
(1) All lands within a Riparian Buffer shall be left in an undisturbed, vegetated condition, except that removal of dead trees or trees of immediate threat to human safety, as well as reasonable pruning of existing trees, is permitted.
(2) The creation of new lawn areas within Riparian Buffers is not permitted. Property Owners already encroaching on the Riparian Buffer are encouraged to return mowed areas to their naturally vegetated state. Supplemental planting with appropriate native vegetation to restore and enhance the effective filtering and bank Stabilization functions of a Riparian Buffer is encouraged.
(3) Any areas within a Riparian Buffer that are not vegetated or that are disturbed during construction shall be seeded with a naturalized mix of grasses rather than standard lawn grass.
(4) Permitted Uses. The following activities are permitted within a Riparian Buffer:
A. The control of non-native species of nuisance plants including Eurasian milfoil, water chestnut, purple loosestrife and reed grass (Phragmites), where such control is by hand pulling of invasive plants;
B. Buffer re-establishment projects that use “soft” techniques such as tree revetments and root wads; and
C. Encroachments necessary to rectify a natural catastrophe for the protection of the public health, safety and welfare. All Stream encroachment activities shall be authorized and permitted under the West Virginia Department of Environmental Protection.
(5) Special Exception Uses. The Board of Zoning Appeals may authorize the following as Special Exception Uses within Riparian Buffers subject to the standards and conditions enumerated for each Use and subject to the jurisdiction of the Department of Environmental Protection and Army Corps of Engineers:
A. Clearing of vegetation and filling or excavating of earth materials, only to the extent directly necessitated for the construction or safe operation of a Special Exception Use on the same property and where the Board of Zoning Appeals finds that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer; and
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures.
B. Encroachments necessary for providing for or improving public facilities where the Board of Zoning Appeals finds that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer; and
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures.
C. Unpaved footpaths for the purpose of public recreation located at least ten (10) feet horizontal distance measured from the Top of Slope, where the channel runs adjacent to a valley wall or high terrace, or Top of Bank, where the channel has access to its Flood Plain.
D. Paved paths for the purpose of public recreation located at least fifty (50) feet horizontal distance measured from the Top of Slope, where the channel runs adjacent to a valley wall or high terrace, or Top of Bank, where the channel has access to its Flood Plain. Access points are allowed but shall be limited to areas where the Stream or river channel is already confined and/or permanently constrained.
E. Stormwater treatment facilities meeting the stormwater treatment practices specified herein where the City Engineer/Planning Director or designee find that:
1. There is no practical alternative to the Clearing, filling or excavating within the Riparian Buffer;
2. The purposes of these regulations will be protected through erosion controls, plantings, protection of existing vegetation, and/or other measures; and
3. Evidence of an approved permit from the West Virginia Department of Environmental Protection for coverage under the applicable permitting requirements shall be required to meet this criterion for encroachment into a Riparian Buffer;
F. Roadways or Access Drives for purposes of crossing a Riparian Buffer to gain access to land on the opposite side of the buffer, or for purposes of providing safe access to an approved Use, in cases where there is no feasible alternative for providing safe access. A roadway crossing or Access Drive shall occur at a right angle to the Stream Channel.
G. Public utility easements to the extent necessary to cross or encroach into the Riparian Buffer where there is no feasible alternative for providing or extending utility services.
H. Outdoor recreation and education facilities provided that any Building or Structure (including parking and Driveways) associated with such Use is located outside the Riparian Buffer.
I. Stream restoration projects, including dam removals, in accordance with a plan approved by the West Virginia Department of Environmental Protection.
(6) Expansion of Legally Nonconforming Uses within Riparian Buffers. Notwithstanding the nonconforming Use provisions of subsection (a)(5)H. above, any Building, Structure, or land, or Use thereof, in or upon a Riparian Buffer, which is made nonconforming by reason of the adoption of these regulations, may be expanded or reconstructed, subject to the following provisions:
A. The Structure to be expanded or reconstructed was originally constructed prior to the effective date of these regulations;
B. The Legally Nonconforming Use shall not be changed to another nonconforming Use;
C. A Legally Nonconforming Use that is discontinued for one year or otherwise abandoned shall not be resumed;
D. A Legally Nonconforming Use that is replaced by a conforming Use may not revert to a nonconforming Use;
E. If a Structure made nonconforming by reason of the adoption of this Ordinance is damaged or destroyed over fifty percent (50%) of its market value by flood water inundation or fluvial erosion, the Structure shall not be rebuilt within the Riparian Buffer unless a variance and Use and Occupancy Permit are obtained in accordance with this Ordinance;
F. Enlargement, repair or reconstruction of pre-existing Structures within Riparian Buffers shall be permitted if the City Planning Commission determines that the development activity will not decrease the existing Structure setback from the waterbody or increase the encroachment within the Riparian Buffer, and the total Building footprint area of the expanded or reconstructed Structure is no more than fifty percent (50%) larger than the footprint of the Structure lawfully existing on or before the effective date of these regulations; and
G. New Accessory Structures appurtenant to a pre-existing Structure within a Riparian Buffer shall only be permitted if it is determined that the Accessory Structures do not extend into the buffer any further than the existing Structure and the total Building footprint area of the new Accessory Structure is no more than fifty percent (50%) of the footprint of the pre-existing Structure.
(Ord. 2021-07. Passed 7-21-21.)
1329.13 STORAGE OF MATERIALS.
(a) In addition to the other applicable requirements of the City, the storage of materials shall also be governed by the following provisions:
(1) No materials or wastes shall be deposited upon a Lot in such form or manner that they may be transferred off the Lot by natural causes or forces, nor shall any substance that can contaminate a Stream or Watercourse or otherwise render such a Stream or Watercourse undesirable as a source of water supply or recreation, or that will destroy aquatic life, be allowed to enter any Stream or Watercourse.
(2) All materials or wastes that may cause fumes or dust or that may be edible or otherwise attractive to rodents or insects shall be stored only if enclosed in containers that are adequate to eliminate such hazards.
(3) Outdoor storage shall be completely screened from view of any adjacent residential Use. Buffering and screening requirements specified in the Subdivision and Land Development Ordinance shall apply.
(4) Temporary storage of construction materials is allowed in all Zoning Districts while building site construction is continuously occurring. A lapse of one (1) month shall not be considered “continuously occurring.”
(5) No storage shall be permitted within the Front Yard of any Lot.
(6) Outside storage of raw materials and/or finished products shall be permitted only within the buildable area of the Lot to the rear of the front Building wall of the principal Building and shall not exceed five (5) feet in height in the UR, SR, DT and MUR Zoning Districts and shall not exceed ten (10) feet in the MUC and MIN Zoning Districts.
(7) The storage, handling, and use of flammable and combustible liquids shall be in accordance with NFPA 30: Flammable and Combustible Liquids Code.
(8) No Structure or land shall be used or developed, and no Structure shall be located, extended, converted or structurally altered unless the applicant takes all reasonable measures to minimize the impacts of the above ground and underground storage of heating oil, gasoline, diesel fuel, chemical solutions, hazardous materials, or other substances which, if released, would constitute pollutants to surface water or groundwater or environment. It shall be within the sole discretion of the City Planning Commission, by majority vote and in consultation with the City Engineer, to determine what constitutes a “reasonable measure”. The applicant shall also demonstrate compliance with all applicable federal and state regulations, including notification and registration requirements.
(9) This subsection applies to any and all Uses of land or Structures, including existing Uses and Structures.
(Ord. 2021-07. Passed 7-21-21.)
1329.14 SWIMMING POOLS.
(a) In addition to the other applicable requirements of the City, Swimming Pools shall also be governed by the following provisions:
(1) A Swimming Pool shall not involve any Commercial Use if it is an Accessory Use to a principal residential use;
(2) The design and construction of all Swimming Pools shall be in accordance with the City’s most recently adopted Building Code; and
(3) A Swimming Pool shall be within the principle Side Yard and Rear Yard Setbacks. A contiguous pool patio that is concrete, pavers, bricks, or other hard impervious non-combustible material that is flush with the surrounding grade shall not be required to meet principle setbacks.
(Ord. 2021-07. Passed 7-21-21.)
1329.15 TRASH DUMPSTERS.
(a) In addition to the other applicable requirements of the City, Trash Dumpsters where required by the City shall be governed by the following provisions:
(1) Applicability. This subsection applies to any and all Uses of land or Structures, including existing Uses and Structures; provided that, the requirements of this subsection shall not apply to any dumpster temporarily located on property for the receipt of construction or demolition waste during ongoing construction, renovation, demolition, or similar activities.
(2) Setbacks. Trash Dumpsters shall be located in accordance with the following setbacks:
A. Ten (10) feet from any residentially zoned or used property;
B. Five (5) feet from any non-residentially zoned property;
C. Twenty (20) feet from any public Street; and
D. Twenty-five (25) feet from any residential unit.
(3) Service Access.
A. Placement of Trash Dumpsters and enclosures shall be planned and constructed in a manner that allows unobstructed access to each Trash Dumpster and the unobstructed opening of the gates during the disposal process.
B. Trash Dumpsters shall not be located in such a manner that the service Vehicle will block any public Street or Alley.
C. When Trash Dumpsters are to be serviced from an Alley, enclosures shall be angled thirty (30) degrees and recessed off the Alley approximately six (6) feet (recessing the enclosure is necessary so that gates do not open into the Alley so as to obstruct traffic and so that adequate sight distance can be preserved).
(4) Screening and Minimum Size.
A. All Trash Dumpsters shall be enclosed on three sides based on the screening requirements specified in the Subdivision and Land Development Ordinance.
B. Each screened enclosure shall provide a minimum ten (10) foot interior length and width subject to the following requirements:
1. Each enclosure shall provide a minimum of twelve (12) inches of clear space between each side of the Trash Dumpster (including lifting flanges) and the adjacent wall surface of that enclosure, or any other Trash Dumpsters within that same enclosure; and
2. Residential Trash Dumpsters shall not exceed five (5) feet five (5) inches in height; and
3. Commercial Trash Dumpsters may be sized appropriately based on specific use requirements.
(5) Service Gates.
A. Consistent with the screening requirements specified in the Subdivision and Land Development Ordinance, all screened Trash Dumpster enclosures shall also have gates and their construction shall be of sturdy metal frame and hinges with an opaque facing material consisting of wood or other solid material. Metal or plastic slats inserted in chain link are permitted and shall be maintained.
B. Service gates shall incorporate gate stops and latches that are functional in the fully open and closed positions.
C. Gates that swing out from the container shall be set back from the property line at least a distance equal to the width of the gate. Hinge assemblies shall be strong and durable so that access and servicing gates function properly and do not sag.
(Ord. 2021-07. Passed 7-21-21.)
1329.16 VEHICLE PARKING.
(a) In addition to the other applicable requirements of the City, parking of Vehicles shall also be governed by the following provisions:
(1) General Restrictions – All Districts. No Vehicle may be used as living quarters, sleeping quarters, or a place of abode while in the City, excepting only Motor Homes or Travel Trailers when lawfully parked in a commercial park that provides temporary parking for camping or recreational purposes of Motor Homes and Travel Trailers.
(2) Parking shall be prohibited in Front, Side, and Rear Yard areas in residential districts, except on paved areas or impervious driveways in areas beyond pedestrian sidewalks or, where pedestrian sidewalks do not exist, beyond the public right-of-way portion of the Front Yard.
(3) Parking areas shall be designed pursuant to the requirements specified in the Subdivision and Land Development Ordinance.
(Ord. 2021-07. Passed 7-21-12.)
1329.17 YARD/GARAGE SALES.
(a) In addition to the other applicable requirements of the City, Yard/Garage Sales shall also be governed by the following provisions:
(1) A Yard/Garage Sale shall not involve the sale of new merchandise, excepting only custom craft items.
(2) A Yard/Garage Sale may be conducted no more than four (4) times per year and last no longer than forty-eight (48) hours each.
(Ord. 2021-07. Passed 7-21-21.)