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Martinsburg City Zoning Code

ARTICLE 1321

General Zoning Provisions

1321.01 SHORT TITLE.

   This Ordinance and Ordinances supplemental or amendatory thereto, shall be known and may be cited as the “Zoning Ordinance of the City of Martinsburg, West Virginia” and hereinafter referred to as the “Ordinance.”
(Ord. 2021-07. Passed 7-21-21.)

1321.02 PURPOSE.

   The City of Martinsburg Zoning Ordinance is intended to guide future growth and development by regulating land uses within the jurisdiction of the City of Martinsburg for the improvement of the health, safety, comfort, and general public welfare of its citizens. This Ordinance complies with West Virginia Code Chapter 8A and has been enacted following a study of the land within the corporate limits of Martinsburg and a report and submission of the same to the Martinsburg City Council (hereinafter known as City Council or Council), and public hearings after public notice, all as required by Article 7 of said Chapter 8A. In addition, this Ordinance works in conjunction with the City of Martinsburg Subdivision and Land Development Ordinance is in accordance with the City of Martinsburg Comprehensive Plan. The following items were duly considered in drafting and enacting this Ordinance:
   (a)   Promoting general public welfare, health, safety, morals, and comfort;
   (b)   A plan so that adequate light, air, convenience of access, and safety from fire, flood, andother danger is secured, and to prevent overcrowding of the land and undueconcentration of population;
   (c)   Ensuring attractiveness and convenience is promoted;
   (d)   Increasing mobility, accessibility and connectivity;
   (e)   Preserving Historic Landmarks, Sites, Districts, and Structures;
   (f)   Promoting the orderly development of land; and
   (g)   To help guide the future growth and development of the City in accordance with theMartinsburg Comprehensive Plan that provides for beneficial and convenientrelationships among the various uses within the City.
      (Ord. 2021-07. Passed 7-21-21.)

1321.03 AUTHORITY.

   This Ordinance is enacted pursuant to the authority specified in West Virginia Code Chapter 8A-7-1. (Ord. 2021-07. Passed 7-21-21.)

1321.04 JURISDICTION.

   This Ordinance shall apply to all properties within the corporate limits of the City of Martinsburg, West Virginia, hereinafter referred to as the “City”.
(Ord. 2021-07. Passed 7-21-21.)

1321.05 APPLICABILITY.

   (a)   The terms of this Ordinance shall be applied to support the intent set forth in the Martinsburg Comprehensive Plan.
   (b)   This Ordinance shall apply to all lands, Buildings, Structures, Signs, properties, and their Uses, within the corporate limits of the City of Martinsburg, West Virginia.
   (c)   The Martinsburg City Planning Commission (hereinafter referred to as the Planning Commission) shall consider the most appropriate Zoning District classification(s) for any property proposed for Annexation and provide a recommendation to City Council. Upon Annexation, City Council shall consider the Planning Commission's recommendation and designate the property within one or more appropriate Zoning Districts.
   (d)   In general, the Subdivision and Land Development Ordinance shall provide design standards and other regulations pertaining to the development of land; whereas, the Zoning Ordinance provides parameters on the Use of land. Both documents correlate with each other to provide the overall regulations that are administered by the Planning Commission, City Council, and/or Board of Zoning Appeals, as specified in said Ordinances.
   (e)   Except as hereinafter specified, no land shall hereafter be used or developed, and no Building or part thereof or other Structure shall be used, located, erected, constructed, reconstructed, extended, enlarged, converted, or altered, except in conformity with the regulations herein specified for the Zoning District in which it is located. Furthermore, any changes created by a subdivision of land shall also be in conformity with the regulations herein specified for the Zoning District in which it is located, as reviewed and determined by the City Engineer/Planning Director or designee.
   (f)   Nothing in this Ordinance shall be deemed or construed to void, nullify, abrogate, modify, limit or otherwise adversely affect any right vested under applicable law at the time of enactment of this Ordinance, whether such right arose under a subdivision or land development plan or plat, proffer, condition of annexation, or development agreement proposed by a Person and accepted or approved by the City or any of its departments or commissions or any other source. This Ordinance is not intended to interfere with or abrogate or annul any more restrictive Easements, covenants, building restrictions, or other agreements between parties relating to use or development of land. (Ord. 2021-07. Passed 7-21-21.)

1321.06 INTERPRETATION.

   (a)   The regulations specified within this Ordinance shall be considered minimum regulations and shall be applied uniformly to all individuals and businesses within the jurisdiction of the City.
   (b)   Uses not permitted (whether expressly permitted or permitted upon interpretation and classification by the City Engineer/Planning Director or designee as follows) within a Zoning District shall be deemed excluded. For the elimination of any doubt, industrial uses are not permitted in any Zoning District – the intent being that such uses are best situated at industrial parks and other sites in Berkeley County. The City Engineer/Planning Director or designee, as defined in Section 1301.08 (a), shall interpret the classification of all land Uses within the context and intent of this Zoning Ordinance and may issue a decision regarding whether a particular Use is permitted or excluded in a Zoning District, all in accordance with Article 1327 , Zoning Uses.
   (c)   When this Ordinance places a greater restriction than is imposed or required by other provisions of law, or by other rules, regulations, Ordinances, or by private restrictions, covenants, or declarations, the provisions set forth in this Ordinance shall prevail, except where otherwise specifically stated herein. Without limitations of the foregoing, in the event of a conflict between or among the provision of this Ordinance, the City’s Subdivision and Land Development Ordinance, and/or any other Codified Ordinance of the City, the conflicting provisions shall be given precedence in the following order:
      (1)   The provisions of this Ordinance;
      (2)   The provisions of the City’s Subdivision and Land Development Ordinance; and
      (3)   The provisions of the City’s other Codified Ordinances with precedence among them given to the provision bearing the latest date of passage.
   (d)   If there is a conflict between or among the provisions of this Ordinance, the stricter regulation shall apply.
   (e)   Private covenants contained in any Deed or Declaration are not enforceable by the City, however, such covenants may, as a factor, be considered in the exercise of its sound discretion by the Board of Zoning Appeals when called upon to consider Variance requests and neighborhood compatibility factors related thereto.
(Ord. 2021-07. Passed 7-21-21.)

1321.07 SEVERABILITY.

   Should a court of competent jurisdiction declare any article, section, subsection, or provision of this Ordinance invalid or unconstitutional, this decision shall not affect the validity or constitutionality of this Ordinance as a whole, or any part thereof, other than the particular part so declared to be invalid or unconstitutional.
(Ord. 2021-07. Passed 7-21-21.)

1321.08 ADMINISTRATION AND ENFORCEMENT.

   (a)   The provisions of this Ordinance shall be administered by the City’s Board of Zoning Appeals, and as applicable the City Planning Commission. Within a reasonable time after the enactment of this Ordinance, and from time to time thereafter as determined appropriate, the City Engineer/Planning Director or designee shall act on the Board of Zoning Appeals behalf and, as applicable, the Planning Commission’s behalf to carry out the duties set forth in subsection (d) below.
   (b)   The City Planning Commission shall study zoning, its development, application and relation to public and private development and its relation to other phases of the Comprehensive Plan for development of Martinsburg and may, from time to time, submit amendments to these regulations or changes in the Zoning District boundaries to the Mayor and City Council of Martinsburg. However, no such amendments or change shall become effective until approved by Council.
   (c)   All departments, officials, and public employees of the City which are vested with the duty or authority to issue permits or licenses shall issue no permit or license for any Use, Building, or purpose if the same would be in conflict with the provisions of this Ordinance.
   (d)   It shall be the duty and the power of the City Engineer/Planning Director or designee to:
      (1)   Review all applications for Use and Occupancy Permits;
      (2)   Issue Use and Occupancy Permits only where there is compliance with the provisions of this Ordinance and with other City Ordinances;
      (3)   Following a refusal of a permit, to receive applications for Appeals, Special Use Permits, and Variances, and promptly forward these applications to the Board of Zoning Appeals;
      (4)   Conduct inspections to determine compliance or noncompliance with the terms of this Ordinance;
      (5)   Issue written stop, cease and desist orders and other written orders for correction of all conditions found to be in violation of provisions of this Ordinance. Such written orders shall be served upon Owners or Persons deemed by the City Engineer/Planning Director or designee to be violating the terms of this Ordinance;
      (6)   Record and file all applications for Use and Occupancy Permits with accompanying plans and documents. All applications, plans and documents shall be a public record except that the City Engineer/Planning Director or designee, pursuant to West Virginia Code Chapter 29B, Freedom of Information, may withhold information pertaining to a pending investigation involving unlawful activity and documents and data exempt from public disclosure;
      (7)   Maintain the official Zoning Map or Maps showing the current Zoning District classification of all land in the City;
      (8)   Bring pertinent matters to the City Planning Commission for its action or information, and provide administrative duties accordingly;
      (9)   Bring pertinent matters to the Board of Zoning Appeals for its action and information, and provide administrative duties accordingly;
      (10)   Timely revoke and require the return of a void Occupancy and Use Permit by notifying the permit holder in writing, stating the reason for the revocation. Use and Occupancy Permits shall be revoked for any substantial departure from the approved application, plans, or specifications; refusal or failure to comply with the requirements of applicable federal, state, or local laws; or for false statements or misrepresentations made in securing the permit or certificate. Any permit or certificate which violates this or any Ordinance of the City, or any applicable federal, state, or other local law is void;
      (11)   Upon the request of the City Council, the City Planning Commission, or the Board of Zoning Appeals, present to such body’s facts, records, or reports which they may request to assist them in making decisions or assist them in any other way as requested;
      (12)   Evaluate and classify proposed land Uses within the context of this Zoning Ordinance as either permitted, permitted with a Special Use Permit, or prohibited; and
      (13)   Create and maintain land use application forms.
   (e)   Enforcement. The City Engineer/Planning Director or designee shall enforce this Ordinance by issuing written stop, cease, and desist orders and other written orders, by withholding Use and Occupancy Permits, by seeking an injunction, mandamus, or other judicial action to prevent, correct, or abate unlawful construction, conversion, alteration, occupancy, or Use, and by seeking warrants for prosecution of violators of this Ordinance.
      (1)   Violation; remedies.
         A.   Complaints. Any Person alleging a violation of this Ordinance may file a written complaint with the City Engineer/Planning Director or designee. Upon receipt of a written complaint, the City Engineer/Planning Director or designee shall investigate the matter within ten (10) business days and take appropriate action. A complete record shall be kept of all written complaints received and the actions taken pursuant thereto.
         B.   Remedies. When any Building or part thereof or other Structure is used, located, erected, constructed, reconstructed, extended, enlarged, converted, or altered, or any land is used or developed, in violation of this Ordinance, or any provision of this Ordinance is otherwise violated, the City Planning Commission, Board of Zoning Appeals, or City Engineer/Planning Director designee may institute action in the Circuit Court of Berkeley County for injunction to restrain the Use conducted in violation of this Ordinance or any other violation of this Ordinance, and/or to direct the Owner or other appropriate Person to remove the subject Structure or Building and take any other enforcement action consistent with Article 10, Chapter 8A of the West Virginia Code.
      (2)   Penalties. Consistent with Section 8A-10-2 of the West Virginia Code, any Person who violates any provision of this Ordinance, including without limitation failure to comply with any stop, cease, and desist or other order issued pursuant to this Ordinance, shall be guilty of a misdemeanor and, upon conviction, shall be punished for each offense by a fine not less than one hundred dollars ($100.00) or more than five hundred dollars ($500.00). Each day the violation continues shall be considered a separate offense. Work carried on in violation of the cancellation of any permit issued under this Ordinance shall also be deemed a violation punishable in the same manner. (Ord. 2021-07. Passed 7-21-21.)

1321.09 USE AND OCCUPANCY PERMITS, FEES, AND INSPECTIONS.

   (a)   A Use and Occupancy Permit shall be required for any of the following:
      (1)   Construction, reconstruction, erection, extension, enlargement, conversion, or structural alteration of any Building, including Accessory Structures;
      (2)   Change in Use of an existing Building or Accessory Structure to a Use of a different classification;
      (3)   Occupancy and Use of vacant land;
      (4)   Change in the Use of land to a Use of a different classification;
      (5)   Any change in a Legally Nonconforming Use;
      (6)   Any Temporary Uses as defined in Article 1327 , Zoning Uses; and
      (7)   Any change in ownership.
      A Use and Occupancy Permit is issued subject to continued compliance with all requirements and conditions of this Ordinance and other regulations enacted by the City, all as in effect at the time of issuance of the Use and Occupancy Permit and may be revoked for noncompliance.
   (b)   Applications. Use and Occupancy Permit applications shall be submitted pursuant to the requirements specified by City Codified Ordinance Section 1501.05 and provisions of the current Use and Occupancy Permit application.
   (c)   The City Engineer/Planning Director or designee shall approve the issuance of a Use and Occupancy Permit only if the application complies with the requirements of this Ordinance, and provided that such Use and Occupancy Permit shall be conditioned, where necessary, on the approval of the City Engineer/Planning Director or designee, and any other department, committee, or agency concerned, and provided the application is accompanied by the required fee. It shall be the responsibility of the applicant to identify any deviations from the standards and specifications of this Ordinance.
   (d)   The City Planning Department shall maintain a record of all Use and Occupancy Permits and copies shall be furnished upon request to any Person upon payment of the cost thereof. The issuance of a Use and Occupancy Permit shall not be construed so as to sanction a variance from the terms of this Ordinance and any Use and Occupancy Permit issued that would work to violate this Ordinance, the applicable Building Codes or the Subdivision and Land Use Ordinance shall be void.
   (e)   If the Board of Zoning Appeals or the City Planning Commission shall determine that any provision of this Ordinance is violated, the Planning Commission may instruct the City Engineer/Planning Director or designee to take appropriate action to ensure compliance. This Section shall not be construed to require action by the Planning Commission prior to the taking of appropriate enforcement action by the City Engineer/Planning Director or designee as otherwise provided in this Ordinance.
   (f)   Permits for a Principal Use shall encompass any Accessory Uses on the same property provided that such Accessory Uses are clearly reflected in the Use and Occupancy Permit application.
   (g)   Fees. All applications for Use and Occupancy Permits, Special Exceptions, petitions to rezone property and variances shall be accompanied by the prevailing fees. The City publishes the various fees applicable to such applications and related matters, which provisions, as they may be amended from time to time, are incorporated into this Ordinance by reference.
   (h)   There shall be no refund of any fee paid hereunder.
   (i)   A Use and Occupancy Permit shall authorize only the Use, arrangement, and construction set forth in the application for same. Use arrangement or construction differing with that authorized shall be deemed a violation of this Ordinance.
   (j)   Undertaking any of the activities listed in subsection (a) without a Use and Occupancy Permit shall be deemed a violation of this Ordinance, provided that this Subsection shall not be construed to apply to a rearrangement of equipment within an existing facility.
(Ord. 2021-07. Passed 7-21-21.)

1321.10 BOARD OF ZONING APPEALS AND HEARING PROCEDURES.

   (a)   A Board of Zoning Appeals is hereby established with membership and appointment provided in accordance with Article 8, Chapter 8A of the West Virginia Code. If a vacancy occurs by resignation or otherwise, among the members of the Board, the City Council shall appoint a member for the unexpired term. The City Mayor with the approval of City Council shall appoint a 1st and 2nd alternate, who shall act in the event any member recuses oneself.
   (b)   This Subsection shall apply to the Martinsburg Zoning Ordinance and the Martinsburg Subdivision and Land Development Ordinance.
   (c)   Creation; Appointment; Term of Office; Vacancies; Membership; and Removal of Members. The Board of Zoning Appeals, consisting of five (5) members, heretofore created under the prior Martinsburg Zoning Ordinance adopted February 1970 is hereby continued in existence as the Board of Zoning Appeals under this Ordinance. The appointment of members, their terms of office, succession, removal, filling of vacancies, membership, and alternate membership, shall be as provided in Article 8, Chapter 8A of the West Virginia Code.
   (d)   General Powers and Duties. The Board of Zoning Appeals has the following powers and duties:
      (1)   Hear, review and determine Appeals from an order, requirement, decision or determination made by the City Engineer/Planning Director or designee under the Martinsburg Zoning Ordinance or rule or regulation adopted pursuant thereto or by the City Engineer/Planning Director or designee or rule or regulation adopted pursuant thereto;
      (2)   Hear requests for and decide whether to issue Special Use Permits authorizing Special Exception Uses provided in this Zoning Ordinance for the Zoning District at issue;
      (3)   Hear requests for, and decide whether to grant, Variances to the Zoning Ordinance as will not be contrary to the public interest, where owing to special condition, a literal enforcement of the provisions of this Ordinance would result in unnecessary hardship;
      (4)   Reverse, affirm or modify the order, requirement, decision or determination Appealed from and have all the powers and authority of the City Engineer/Planning Director or designee. The concurring vote of four of the members of the Board of Zoning Appeals shall be necessary to reverse any order, requirement, decision, or determination of the City Engineer/Planning Director or designee, or to decide in favor of the applicant on any matter upon which it is required to pass under this Ordinance, or to effect any variation in the application of this Ordinance;
      (5)   Adopt rules and regulations concerning:
         A.   The filing of Appeals, including the process and forms for the Appeal;
         B.   Applications and requests for Variances and Special Exception Uses;
         C.   The giving of notice; and
         D.   The conduct of hearings necessary to carry out the Board's duties under the terms of this Ordinance, the Subdivision and Land Development Ordinance, and Article 8, Chapter 8A of the West Virginia Code;
      (6)   Keep minutes of its proceedings;
      (7)   Keep an accurate and complete audio record of all the Board's proceedings and official actions. The audio record shall be kept in a safe manner and be accessible within a maximum of five (5) days not including Saturdays, Sundays, or legal holidays of a written request for a period of three (3) years; provided that, executive sessions of the Board of Zoning Appeals conducted for the purpose of deliberation incident to the quasi-judicial function of the Board and/or otherwise conducted in compliance with the Open Governmental Proceedings Act as codified in Article 9A, Chapter 6 of the West Virginia Code need not be audio recorded;
      (8)   Record the vote on all actions taken;
      (9)   Take responsibility for the custody and preservation of all papers and documents of the Board. All minutes and records shall be filed in the office of the Board and shall constitute public records;
      (10)   With consent from City Council, hire employees necessary to carry out the duties and responsibilities of the Board; provided that, City Council shall set the salaries; and
      (11)    Supervise the fiscal affairs and responsibilities of the Board.
   (e)   Organization; Meetings; Authority to Administer Oaths and Compel Attendance of Witnesses; Technical Assistance; Open Meetings. The Board shall be organized, hold meetings and conduct business in accordance with the provisions of this Ordinance and Article 8, Chapter 8A of the West Virginia Code. Meetings of the Board shall be held at least quarterly, and more frequently as the Board may determine or at the written request of the chairperson or two or more members. The chairperson, or in his/her absence, the acting chairperson, may administer oaths and compel the attendance of witnesses. For assistance, in reaching decisions relative to Appeals, Special Exception Uses, or Variances, the Board may request testimony at its hearings for purposes of securing technical aid or factual evidence from the City Mayor, City Council, or any City Department. All meetings of the Board shall be open to the public, subject to the right of the Board to adjourn into executive session for deliberation in the performance of its quasi-judicial functions and for such other purposes as may be proper under state law.
   (f)   Appeals to the Board. Any order, requirement, decision, or determination made by the City Engineer/Planning Director or designee under this Ordinance or any rule or regulation adopted thereunder, may be appealed to the Board of Zoning Appeals within thirty (30) business days of the original order, requirement, decision, or determination against which the Appeal is made. An Appeal shall be filed on forms established by the Planning Department, specify the grounds of Appeal, and otherwise be in accord with the Rules of the Board of Zoning Appeals.
   (g)   Hearings by the Board.
      (1)   Hearing – Action required after receipt of application or Appeal. Following receipt by the Board of Zoning Appeals of a complete application or Appeal, the Board shall:
         A.   Within (10) business days of receipt of a complete application or Appeal, set a time for hearing of the application or Appeal, and give notice thereof to the applicant or appellant. The hearing shall be held no later than forty-five (45) business days from the date of receipt of the complete application or Appeal. Applicants and appellants may petition for postponement or change of said dates for good cause shown in accord with the Rules of the Board of Zoning Appeals;
         B.   At least fifteen (15) business days prior to the date set for the hearing on the application or Appeal, publish a notice of the date, time and place of the hearing on the application or Appeal as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et. seq., and at least fifteen (15) business days prior to the date set for the hearing on the application or Appeal provide written notice thereof to the interested parties. The publication area shall be the area covered in the application or Appeal. For purposes of this provision, “interested parties” shall mean Landowners of Adjacent Property within one hundred (100) radial feet of the proposed development or activity. The applicant or appellant shall make a good-faith effort to provide the City Engineer/Planning Director or designee as applicable, with a current list containing the accurate names and mailing addresses of all interested parties. In turn, the City Engineer/Planning Director or designee, shall verify said list of interested parties with Berkeley County-maintained property records;
         C.   Provide a hearing notice to the City Engineer/Planning Director or designee for posting upon the property upon which the application or Appeal is concerned. The notice shall be posted conspicuously at least fifteen (15) business days before the date of the hearing by the Board; and
         D.   Visit the specific property in question prior to the hearing in order to make proper determination of all applicable facts.
         E.   The written decision by the Board shall be rendered within thirty (30) days after the hearing. If the Board fails to render a written decision within thirty (30) days after the hearing, then any party may pursue additional legal remedies to obtain a decision, including, but not limited to, seeking a writ of mandamus.
      (2)   Hearing – Holding of Hearing; Appearance at Hearing. The Board, following such action above, shall hold such hearing. At the hearing, any party may appear and be heard in person or by agent or attorney, subject to the rules of the Board, and the prerogative of the Board to determine the standing of any Person to pursue an application or Appeal that has been filed.
      (3)   Hearing – Postponement.
         A.   Request for postponement of a scheduled hearing shall be filed in writing with the Board not less than fifteen (15) business days prior to the date of the hearing, and shall be accompanied by a sum of money sufficient to pay the cost of publishing the postponement, certified mail notice to all adjacent and confronting landowners of the subject property, and the rescheduled hearing as a Class I legal advertisement in compliance with the provisions of West Virginia Code Chapter 59-3-1 et seq. The granting of such requests shall be at the discretion of the City Engineer/Planning Director or designee.
         B.   Requests for postponement filed less than fifteen (15) business days prior to the date of a scheduled hearing, shall, in addition to the other requirements set forth in Subsection (a) above, including the sum of money sufficient to pay the cost of advertising the postponement and the rescheduled hearing, be supported by an affidavit or declaration of the party making the request or of some other credible person specifying that the scheduled hearing date will impose an extreme hardship or other good cause for postponement. The granting of such request shall be at the discretion of the City Engineer/Planning Director or designee.
         C.   No more than three (3) postponements shall be granted within any period of ninety (90) calendar days.
      (4)   Hearing – Continuance. The Board may continue a hearing at another time and/or date once such hearing has been started; however, the Board shall announce the date and hour of continuance of such hearing while in session. Furthermore, the chairperson, or in their absence, the acting chairperson may call for a continuance if a quorum is not in place for the meeting. The date and hour shall be agreed to by all parties and announced while in session.
   
   (h)   Staying of Work on Premises When Appeal Taken; Exception. When an Appeal has been taken and filed with the Board of Zoning Appeals, all proceedings and work on the premises in question shall be stayed unless the official or board from whom or which the Appeal was taken shall certify to the Board of Zoning Appeals that by reason of facts stated in the certificate a stay would cause imminent peril to life or property. If such certificate be filed, proceedings or work on the premises shall not be stayed except by order of the Circuit Court of Berkeley County. Such stay shall not affect further administrative proceedings or engineering or architectural work that does not disturb the real property beyond incidental disturbances necessary to complete engineering work (such as surveying, tests, or core drilling).
   (i)   Hearings – Decision by the Board; Appeal from Decision by the Board. The Board shall render a written decision containing findings of fact and conclusions of law within thirty (30) business days after completion of the hearings. The Board may announce its decision at the conclusion of the public hearing and authorize the chairperson to execute the written decision once prepared, or it may defer its decision and reconvene within thirty (30) business days to further deliberate, vote, and render its written decision. Any Person or Persons aggrieved by any decision of the Board of Zoning Appeals may seek review by certiorari of the same by the Circuit Court of Berkeley County pursuant and subject to West Virginia Code Chapter 8A-9 by petition filed within thirty (30) business days after the filing of the Board's written decision. Nothing herein shall be deemed to limit the right of any Person to seek review by certiorari by said Court pursuant to said Chapter 8A-9 without first appealing to the Board of Zoning Appeals.
   (j)   Disapproval of Application. If an application or Appeal is denied by the Board of Zoning Appeals, no further action on another application for the same proposal on the same premises shall be taken until after twelve (12) months from the date of such denial. However, if circumstances change sufficiently that the necessary findings might be met in the future, the Board may rehear a similar application.
   (k)   Fees. A filing fee shall accompany each application for an Appeal to the Board. See the City Fee Schedule for the amount.
(Ord. 2021-07. Passed 7-21-21.)

1321.11 SPECIAL EXCEPTION USES AND VARIANCES.

   (a)   Special Exception Uses. Special Exception Uses are Uses that are conditionally permitted in a particular Zoning District.
      (1)   An application for a Special Exception may be made only by a person or persons with a financial, contractual basis, or proprietary interest in the property for which a Special Exception is requested.
      (2)   A Special Exception Use may be commenced and carried on only after review by the Board of Zoning Appeals and its issuance of a Special Use Permit.
      (3)   The Board of Zoning Appeals shall consider a request for a Special Exception if the requested Use is expressly designated as a Special Exception Use in this Ordinance or interpreted and classified as such by the City Engineer/Planning Director or designee, for the Zoning District in which the subject property is located.
      (4)   The Board of Zoning Appeals shall grant a Special Exception if the required findings specified in subsection (d)(3) are made or shall deny granting a Special Exception if all required findings cannot be made.
   (b)   If the Board cannot make all required findings, no Special Exception shall be granted. However, if circumstances change sufficiently that the necessary findings might be met in the future, the Board may rehear a similar application.
   (c)   A Special Exception shall be valid for two (2) years if the use is not acted upon, or a Subdivision and/or Land Development Plan has not received.
   (d)   Special Exception Procedures.
      (1)   A written application for a Special Exception shall be submitted to the City Planning Department, which application shall specify the Special Exception Use sought and include all materials required for a Use and Occupancy Permit. The administrative staff shall review the application and file a written report with the Board Chairperson before the Board reviews the application.
      (2)   The Board shall set and hold a public hearing in accordance with Section 1321.10 (g).
      (3)   In order to issue a Special Exception, the Board must make the following written findings regarding the Special Exception Use sought:
         A.   The proposed use is in harmony with the purpose and intent of the City Comprehensive Plan and of this Ordinance;
         B.   The location and size of the use, the nature and intensity of the operations involved in or conducted in connection with it, the size of the site in relation to it, and the location of the site with respect to Streets giving access to it, are such that it will be in harmony with the appropriate and orderly development of the Zoning District in which it is located;
         C.   The location, nature and height of buildings, walls, and fences, and the nature and extent of the landscaping on the site are such that the use will not hinder or discourage the appropriate development and use of adjacent land and Buildings;
         D.   Operations in connection with any special Use will not be more objectionable to nearby properties by reason of noise, fumes, vibration, or other characteristics, than would be the operations of any permitted use not requiring a special permit;
         E.   Parking areas will be of adequate size for the particular use, properly located and suitably screened from adjoining residential uses, and the entrance and exit drives shall be laid out so as to achieve maximum safety; and
         F.   Public utility service (electricity, sewerage, storm drainage and water) will be adequate to service the proposed use and will have suitable access thereto, and the proposal will not overburden existing facilities; or, any onsite water supply, sewage treatment, or storm drainage disposal system will be adequate to service the proposed use.
         If the Board makes the above required findings, a Special Exception shall be issued to permit the requested Use, subject however, to any condition stipulated by this Ordinance or determined by the Board to be necessary to ensure that the Use remains compatible with other Uses permitted in the Zoning District and with Adjacent Properties. No Special Exception may grant Variances from the requirements of this Ordinance.
      (4)   Conditions. The Board of Zoning Appeals, in issuing Special Exceptions, may attach conditions considered necessary to protect the public welfare and the purposes listed above, including conditions which are more restrictive than those established for other Uses in the same Zoning District. These conditions shall be enforceable by the City Engineer/Planning Director or designee and failure to comply with such conditions shall constitute a violation of this Ordinance and be subject to the penalties described in Section 1321.08 (e)(2).
      (5)   A Special Exception shall not be issued by the Board of Zoning Appeals for any development within the Regulatory Floodway if any increase in the elevation of the 100-Year Flood would result.
   (e)   Variance Procedures.
      (1)   A written application for a Variance to the Zoning Ordinance shall be submitted to the Board of Zoning Appeals and City Engineer/Planning Director or designee, which application shall specify the standard or requirement from which a Variance is sought. The City Engineer/Planning Director or designee shall review the application and file a written report with the Board.
      (2)   An application for a Variance may be made only by a person or persons with a financial, contractual basis, or proprietary interest in the property for which a Variance is requested.
      (3)   The Board shall set and hold a public hearing in accordance with Section 1321.10 (g).
      (4)   If the Board cannot make all required findings, no Variance shall be granted. However, if circumstances change sufficiently that the necessary findings might be met in the future, the Board may rehear a similar application.
      (5)   The Board of Zoning Appeals shall grant the Variance sought if it finds that the Variance:
         A.   Will not adversely affect the public health, safety or welfare, or the rights of adjacent property owners or residents;
         B.   Arises from special conditions or attributes which pertain to the property for which a variance is sought, and which were not created by the person seeking the variance;
         C.   Would eliminate an unnecessary hardship and permit a reasonable use of the land; and
         D.   Will allow the intent of the zoning ordinance to be observed and substantial justice done.
      (6)   If the Board grants a Variance, its actions will be accompanied by its reasons for making the required findings and by its certification that the Variance is the minimum Variance which will make possible the reasonable Use of land, Buildings, or Structures.
      (7)   A Variance shall not be issued by the Board of Zoning Appeals for any development within the Regulatory Floodway if any increase in the elevation of the 100-Year Flood would result.
      (8)   Exceptions to these rules and regulations as contemplated in Section 1321.10 (d)(3) shall be subject to the procedures of this subsection (e).
         (Ord. 2021-07. Passed 7-21-21.)

1321.12 ZONING AMENDMENTS.

   (a)   General.
      (1)   Authority. Pursuant to and in accordance with West Virginia Code Chapters 8A-7-8, 8A-7-8a, and 8A-7-9, City Council upon recommendation by the City Planning Commission may, by ordinance, amend, supplement, change, modify or repeal the regulations and Zoning Districts established by this Ordinance. No such amendment shall be adopted by City Council unless and until:
         A.   City Council, with the advice of the Planning Commission, finds either that the amendment is consistent with the City’s Comprehensive Plan, or that the amendment is not consistent with the Comprehensive Plan but that there have been major changes of an economic, physical, or social nature within the area involved that were not anticipated when the Comprehensive Plan was adopted and that such major changes have substantially altered the basic characteristics of the area;
         B.   Planning Commission has held a public hearing (after public notice) regarding the amendment and submitted its findings and recommendation relative thereto to City Council; and
         C.   If the proposed amendment to this Ordinance involves a change in the Zoning Map classification of any parcel of land, or a change to the applicable Ordinance text regulations that changes the allowed Dwelling Unit density of any parcel of land, City Council shall, at least thirty (30) business days prior to the enactment of the proposed amendment if there is not an election, or at least thirty (30) business days prior to an election on the proposed amendment to the zoning ordinance:
            1.   Give written notice by certified mail to the landowner(s) whose property is directly involved in the proposed amendment to the Ordinance; and
            2.   Publish notice of the proposed amendment to the Ordinance in a local newspaper of general circulation in the area affected by the zoning ordinance, as a Class II legal advertisement, in accordance with the provisions of West Virginia Code Chapter 59-3-1, et. seq.
      (2)   Proposal of Amendments. Amendments may be initiated by City Council, upon petition of the City Planning Commission, or upon petition by the Owners of fifty percent (50%) or more of the real property in the area to which the petition relates.
   (b)   Petitions for Zoning Amendment.
      (1)   A petition to amend regulations or the Zoning District boundaries of this Ordinance shall be obtained from the City Engineer/Planning Director or designee and completed in its entirety. A petition, when completed, shall be filed with the City Engineer/Planning Director or designee who will forward the petition to City Planning Commission so that a public hearing can be held.
      (2)   Zoning amendment petitions shall provide the following information, except that petitions by the City Planning Commission shall exclude petitioner-related information other than identification of the Planning Commission as the petitioner:
         A.   A legal description of the property;
         B.   A scaled map of the property, correlated with the legal description, and clearly showing the property's location;
         C.   The name, address and phone number of the petitioner(s);
         D.   The interest of the petitioner(s) in the property, and if the petitioner(s) is (are) not the Owner(s) of all the real property in the area to which the petition relates, the name and address of the other Owner(s);
         E.   Description of the present Use(s) of the property and existing Zoning District;
         F.   Description of the proposed Use(s) of the property and requested Zoning District;
         G.   Proposed text amendment pursuant to subsection (d)(4)B. below;
         H.   Area of the property in square feet and/or acres;
         I.   Time schedule for development;
         J.   Additional exhibits may be required by the City Engineer/Planning Director or designee such as a plot plan or site plan showing existing and proposed Structures, easements, Watercourses, curb cuts and description of the Uses of Adjacent Property that are necessary to describe existing or proposed conditions; and
         K.   Signature(s) of petitioner(s) certifying the accuracy of the required information.
   (c)   Application Fee. An application fee shall be required according to the City’s published Fee Schedule.
   (d)   City Planning Commission Hearing and Action.
      (1)   Public Hearing. The Planning Commission shall hold a public hearing on each proposed amendment, whether initiated by City Council, upon petition of the Planning Commission, or upon petition by the Owners of fifty percent (50%) or more of the real property in the area to which the petition relates. The Planning Commission shall select a reasonable hour and place for such public hearing, and it shall hold such hearing within sixty (60) business days from the date on which the subject petition was filed or the date of City Council’s referral of the amendment.
      (2)   Notice of Hearing.
         A.   At least thirty (30) business days prior to the scheduled hearing on the proposed amendment, the City Engineer/Planning Director or designee shall:
            1.   Publish either a Class I (amendments proposed by petition) or Class II (amendments proposed by the City) legal advertisement, in accordance with the provisions of West Virginia Code Chapter 59-3-1 et seq., giving notice of the public hearing on the proposed amendment in a local newspaper of general circulation in the area affected by the proposed Zoning Ordinance;
            2.   Give written notice by certified mail to the Landowner(s) whose property is directly involved in the proposed amendment and to all Landowners of Adjacent Property, to the subject property; Adjacent Property owners are identified as properties within one hundred (100) radial feet of the proposed zoning amendment; provided that, the failure of any party to actually receive such notice shall not invalidate any subsequent action taken; and
            3.   Ensure that the public notice of the proposed amendment is conspicuously posted at points along the boundary of the affected property sufficient to notify potentially interested citizens. The affected property shall be posted at least one (1) week prior to the date of the scheduled hearing.
         B.   Such public notices shall state the date, time and place of the hearing and shall contain a statement regarding the proposed change in regulations or restrictions, or the Zoning District classifications or boundaries of the property. If the proposed amendment would change the Zoning District classification of any property, or the boundaries of any Zoning District, such notice shall contain the legal description and street address or general street location of such property, its present Zoning District classification, and the proposed classification.
      (3)   Conduct of Hearing. The hearing shall be conducted with an accurate and complete audio record of all the Planning Commission’s proceedings and be accessible within 24 hours of a written request for a period of three (3) years. The Planning Commission may request a report on any proposed amendment from any governmental official or agency, or any other Person.
         If such a report is made, a copy thereof shall be made available to the applicant and any other interested Persons and shall be available for review in the offices of the City Engineer/Planning Director or designee within three (3) days of the receipt of the report.
      (4)   Action by City Planning Commission.
         A.   Recommendations. Within forty-five (45) business days of the public hearing, the Planning Commission shall prepare and adopt its recommendations and shall submit the same in writing, together with a record of the hearing thereon, to City Council. Said recommendation may be for approval, disapproval or approval in part and reasons for the recommendations shall be included as appropriate.
         B.   Text Amendments. When a proposed amendment would result in a change in the text of this Ordinance but would not result in a change of Zoning District classification of any specific property, the recommendation of the Planning Commission shall contain a statement as to the nature and effect of such proposed amendment and determinations as to the following items:
            1.   Whether such change is consistent with the intent and purpose of this Ordinance;
            2.   Whether such change is consistent with the Martinsburg Comprehensive Plan;
            3.   The areas which are most likely to be directly affected by such change and in what way they will be affected; and
            4.   Whether the proposed amendment is made necessary because of changed or changing social values, new planning concepts or other socio-economic conditions in the areas and Zoning Districts affected.
         C.   In order to issue an approval of a zoning amendment, the Planning Commission must make the following findings regarding the zoning amendment change sought.
            1.   The proposed zoning amendment is in harmony with the purpose and intent of the Martinsburg Comprehensive Development Plan and of the zoning ordinance.
            2.   The proposed zoning amendment will not affect adversely the health, safety, or welfare, or constitute a public nuisance of persons residing or working about the proposed amendment and will not be detrimental to public welfare.
            3.   The proposed amendment will not be detrimental to the value of adjacent property or improvements in the neighborhood.
   (e)   City Council Action.
      (1)   Action by City Council. City Council shall consider the proposed amendment and may adopt the same by ordinance pursuant to West Virginia Code Chapter 8A-11-4. In considering the proposed amendment, City Council shall consider, but shall not be bound by, the findings and recommendations of the Planning Commission, as well as comments at its own public hearing. The adoption by City Council of any amendment to this Ordinance or the Zoning District boundaries, if such amendment renders the then existing Zoning Map inaccurate, shall be deemed the concurrent adoption of a revised official Zoning Map that accurately reflects the effect of the amendment, and authorization for the City Engineer/Planning Director or designee to have prepared and certified such revised Zoning Map.
   (f)   Disapproval of Amendment. If an amendment petition by Owners is denied by City Council, no further action on another petition by the Owners for the same proposal shall be taken until after twelve (12) months from the date of such denial. However, if circumstances of the disapproved proposal change from the City Engineer/Planning Director or designee’s perspective then a new petition by Owners may be submitted for the City’s consideration pursuant to the application and hearing process described in this Section 1321.12 this Ordinance.
(Ord. 2021-07. Passed 7-21-21.)