Martinsburg City Zoning Code
ARTICLE 1323
Definitions
1323.01 RULES OF INTERPRETATION.
The following rules apply to the interpretation of this Ordinance:
(a) Words in the singular include the plural and those in the plural include the singular;
(b) Words used in the present tense include the future tense;
(c) The words “Person”, “applicant”, “developer”, and “Owner” include a corporation, unincorporated association and a partnership, or other legal entity, as well as an individual engaged in the subject activity;
(d) The word “Building” includes Structure and shall be construed as if followed by the phrase “or part thereof”;
(e) The word “Watercourse” includes channel, creek, ditch, dryrun, spring, Stream and river;
(f) The words “should” and “may” are permissive; the words “shall” and “will” are mandatory and directive;
(g) The word “Lot” includes the word plot or parcel;
(h) The word “used” or “occupied” as applied to any land or Building shall be construed to include the words “intended, arranged or designed to be used or occupied.”; and
(i) Word and terms not specifically defined by this Ordinance shall be defined and interpreted by the City Engineer/Planning Director or designee using sound professional judgement and/or appropriate and acceptable industry standard resources. (Ord. 2021-07. Passed 7-21-21.)
1323.02 DEFINED WORDS AND TERMS.
The following terms or words, when capitalized herein, shall be interpreted or defined as indicated:
ACCESS DRIVE – A Driveway, Street or Open Space of not less than the width required herein, that provides vehicular access to and from a road and an abutting property. Access Drive includes acceleration and deceleration lanes. Access Drive shall also include all drainage facilities as may be necessary for the proper construction and maintenance of the roadway and abutting property.
ADJACENT PROPERTY – Property that is contiguous with, or directly across a public Street or other right-of-way from, the boundaries of any side of the subject property.
AGGRIEVED OR AGGRIEVED PERSON – Means a Person who:
(1) Is denied by The City Martinsburg Planning Commission or by the Board of Zoning Appeals, in whole or in part, the relief sought in any application or Appeal; or
(2) Has demonstrated that he or she will suffer a peculiar injury, prejudice or inconvenience beyond that which other residents of the City may suffer.
ALLEY – A minor public way used primarily for vehicular service access to the back or the side of properties otherwise abutting on a street.
ALTERATION – As applied to a Building or Structure, any change or rearrangement in the total floor area, or an enlargement, whether by extending on a side or by increasing in height, or the moving from one location or position to another.
ANNEXATION – Shall have the meaning as set forth in Article 6, Chapter 8 of the West Virginia Code.
APARTMENT CONVERSION – An existing Single-Family Detached Dwelling that has been converted or will be converted to individual dwellings for three (3) or more families.
APPEAL – For the purpose of this Zoning Ordinance, an Appeal shall refer to a timely submitted and complete application on an application form prescribed by the Board of Zoning Appeals for appeal of an order, requirement, decision or determination made by the City Engineer/Planning Director or designee or rule or regulation adopted pursuant thereto.
ARCADE – A Private Frontage conventional for Retail use wherein the Facade is a colonnade supporting Usable Floor Area that overlaps the Sidewalk, while the Facade at Sidewalk level remains at the Frontage line (Figure 1323-1, Arcade Illustration).
Figure 1323-1 – Arcade
ARTIST – A person regularly engaged in and who derives at least twenty percent (20%) of his/her annual income from art or creative work either written, composed, created or executed for a “one of a kind, limited” production exclusive of any piece or performance created or executed for industry oriented distribution or related production.
ARTIST MURAL – See MURAL.
ART USE – The production of art or creative work either written, composed or executed for a “one of a kind, limited” production exclusive of any piece or performance created or executed for industry-oriented distribution or related production. Such use may include fine and applied arts including painting or other like picture, traditional and fine artisanry, sculpture, writing, creating film, creating animation, music and theater including lessons, choreography and the performing arts, but shall not include adult entertainment, or adult use.
BASEMENT – That portion of a Building which is partly or completely, or having a floor, below grade on all sides.
BOARD OF ZONING APPEALS – The Martinsburg Board of Zoning Appeals, acting in its capacity as a Board of Zoning Appeals under this Ordinance.
BODY ART ESTABLISHMENT – Any building or structure where the practices of body piercing and/or tattooing, whether or not for profit, are performed.
BUFFER AREA – A Yard, Park, or other undeveloped open area intended to separate incompatible elements or Uses, to control exposure of neighboring properties to noise, odors, or other Nuisances, and to define areas in which permanent Structures shall not be constructed or allowed.
BUILD-TO LINE – A line with which the exterior wall of a building in a development is required to coincide.
BUILDING – Any Structure which is permanently affixed to land and has one or more floors and a roof. This term shall not include Mobile Homes or other factory constructed buildings unless erected on a permanent foundation.
BUILDING HEIGHT – The vertical distance measured from the level of approved street grade opposite the middle of the front of the building to the highest point of roof surface of a flat roof; to the deck line of a mansard roof; and to the mean height level between eaves and ridge of a gable, hip or gambrel roof; except that, if a building is located on a terrace, the height above the street grade may be increased by the height of the terrace. In the case of a building set back from the Street Line thirty-five (35) feet or more, the building height is measured from the average elevation of finished ground surface along the front of the building.
BUILDING LINE – The line (determined with respect to each Lot line and Street Line) beyond which no portion of a Building or Structure shall extend as determined by Front, Rear, and Side Yard Setback requirements set forth herein.
CHURCH – A Building used for public worship excluding specific buildings used for residential, education, burial, recreational, or other uses.
CITY – The City of Martinsburg, West Virginia.
CLEARING – Any activity which removes the vegetative surface cover.
CLEARLY PREVAILING YARD PATTERN – The average of the actual Setbacks of the three nearest developed Lots on each side of the subject Lot that front on the same Street.
COMMERCIAL CENTER – A group of contiguous Lots organized into a shopping center, strip mall, business park, office condominium or similar grouping that share mutual access, ingress and egress easements.
COMMERCIAL SUBDIVISION – A Commercial Subdivision of land whether in single or multiple ownership shall mean all divisions of a tract or parcel of land into two (2) or more Lots, building sites, or other divisions for the purpose of a gift, sale, or commercial building development. These subdivisions may construct new public or private Streets to access new Lots.
COMMERCIAL USE/COMMERCIAL STRUCTURE – Any Use or Structure which provides goods or services on either a profit or nonprofit basis.
COMMERCIAL VEHICLE – A Vehicle, with or without motive power and engine, which: is designed or has been converted for use in the hauling of business products or goods, or the commercial transporting of Persons; or contains advertising insignia (Signage), business lettering or painting, designed for the promotion of goods or products, that is in excess of four (4) square feet; or is any truck with an open or closed bed having a payload capacity of more than 3,000 pounds; or is twenty-four (24) feet or longer, including Trailers and pull-along equipment; or is over 10,000 pounds in gross vehicle weight and not licensed as a Motor Home or Travel Trailer.
COMPREHENSIVE PLAN – The Comprehensive Plan of the City developed pursuant to Article 3, Chapter 8A of the West Virginia Code
CURB – The edge of the vehicular pavement that may be raised or flush to a Swale. It
usually incorporates the drainage system.
DENSITY – The average number of persons, families, or dwellings per unit of area (acre, square mile, etc.).
DENSITY, NET RESIDENTIAL – The Density of the Building site.
DENSITY, GROSS RESIDENTIAL – Density of the Building site plus traversing streets, Alleys, and drives, open space and one-half of bounding streets.
DOMESTIC PARTNER – Shall refer to a spousal equivalent and “Domestic Partners” shall refer to such a couple who cohabitate and live together, whether married or not but who seeks the benefits usually available only to spouses.
DONATION BOX, UNATTENDED – An unattended container, receptacle, or similar device that is located on any property within the City used for soliciting and collecting donations of clothing or other salvageable personal property. This term does not include recycle bins for the collection of recyclable materials governed or regulated by the City Code.
DRIVEWAY – A private travel way for Vehicles that provides access to a public Street or road from a parking space, Garage, Dwelling, Structure or Use. Driveways shall be paved with asphalt, concrete or similar material.
DWELLING UNIT – One or more rooms in a residential Building or in a mixed Building, which are arranged, designed, used or intended for use by one or more Persons living together and maintaining a common household, and which include lawful cooking space and lawful sanitary facilities reserved for the occupants thereof.
EMERGENCY SHELTER – A building (except a hotel or motel) where sleeping rooms and lawful sanitary facilities are provided to persons who need lodging on an immediate and emergent basis. A meal(s) may be furnished. Compensation for lodging and/or meals is not a necessary component of an emergency shelter but compensation being provided does not exclude an otherwise qualifying facility from being an emergency shelter. The length of stay in an emergency shelter may not exceed six (6) weeks consecutively. An emergency shelter is not considered an accessory use or a home occupation.
ENCROACHMENT – The use, placement, or extension of private Uses into, upon, over, or under Public Space or a publicly-owned property. See Section 1329.04
, Encroachments.
ESSENTIAL UTILITIES AND EQUIPMENT – This term comprises underground or overhead electrical, gas, communications not regulated by the Federal Communications Commission, water and sewage systems, including poles, towers or pole structures, wires, lines, mains, drains, pumping stations, sewers, conduits, cables, fire alarm boxes, public telephone structures, police call boxes, traffic signals, hydrants, regulating and measuring devices and the Structures in which they are housed, and other similar equipment accessories in connections therewith. It does not include Buildings, Yards, stations used for storage, repair or processing of equipment or material, and does not include Buildings, Yards, stations, or substations for transforming, boosting or switching purposes, where such facilities are constructed on the ground.
FAIR HOUSING ACT – The Fair Housing Act, 42 U.S.C. 3601 et seq., prohibits discrimination by direct providers of housing, such as landlords and real estate companies as well as other entities, such as municipalities, banks or other lending institutions and homeowners insurance companies whose discriminatory practices make housing unavailable to persons because of race or color, religion, sex, national, origin, familial status, or disability.
FAMILY – Defined as any one of the following groups:
(1) Up to two (2) unrelated adults and their children occupying a dwelling unit;
OR
(2) Four (4) or more persons occupying a dwelling unit and living together as a traditional family or the functional equivalent of a traditional family.
(3) It shall be presumptive evidence that four (4) or more persons living in a single dwelling unit who are not related by blood, marriage or legal adoption do not constitute the functional equivalent of a traditional family.
(4) In determining whether individuals are living together as the functional equivalent of a traditional family, the following criteria must be present:
A. The group is one (1) which in theory, size, appearance, structure and function resembles a traditional family unit;
B. The occupants must share the entire dwelling unit and live and cook together as a single housekeeping unit. A unit in which the various occupants act as separate roomers may not be deemed to be occupied by the functional equivalent of a traditional family;
C. The group shares expenses for food, rent or ownership costs, utilities and other household expenses;
D. The group is permanent and stable. Evidence of such permanency and stability may include:
1. The presence of minor dependent children regularly residing in the household who are enrolled in local schools;
2. Members of the household have the same address for purposes of voter's registration, driver's license, motor vehicle registration and filing of taxes;
3. Members of the household are employed in the area;
4. The household has been living together as a unit for a year or more whether in the current dwelling unit or other dwelling units;
5. There is common ownership of furniture and appliances among the members of the household; and
6. The group is not transient or temporary in nature.
E. Any other factor reasonably related to whether or not the group is the functional equivalent of a family.
FARTHEST FACING WALL – The wall of a Building or Structure that faces, but is farthest in distance from, the subject Street Line or Lot line. In the case of a Building or Structure with walls that are not substantially parallel to Street Lines and Lot lines, separate Farthest Facing Walls may exist for different elevations of the Building or Structure.
FEMA – Federal Emergency Management Administration, or its duly designated and authorized successor agency.
FLAG – Any fabric, Banner, or bunting containing distinctive colors, patterns, or symbols, used as a symbol of a government, political subdivision, or other entity. Flags are regulated in accordance with the Sign regulation standards provided in this Ordinance.
FLOOD, 100-YEAR – An event that has a 1 in 100 chance one percent (1%) probability) of being equaled or exceeded in any given year. The 100-year flood is also referred to as the one percent (1%) flood, since its annual exceedance probability is one percent (1%).
FLOOD PLAIN – Any land area susceptible to being inundated by floodwaters from any source.
FORECOURT – A Private Frontage wherein a portion of the Facade is close to the
Frontage line and the central portion is set back.
FRONTAGE – A Lot boundary line that abuts a public Street, road, or highway, or rural right-of-way.
FRONTAGE BUILDOUT – Refers to the percentage of the Building’s front facade within the minimum/maximum Front Setback of the buildable area, excluding any required (non-buildable) side Setbacks.”
FRONTAGE, PRIVATE – The privately held layer between the Frontage line and the Principal Building Facade.
FRONTAGE, PUBLIC – The area between the Curb of the vehicular lanes and the
Frontage line.
FUNERAL HOME – A Building used for the preparation of the deceased for burial and the display of the deceased and ceremonies connected therewith before burial or cremation.
GALLERY – A Private Frontage conventional for Retail use wherein the Facade is aligned close to the Frontage line with an attached cantilevered shed or lightweight colonnade overlapping the Sidewalk (Figure 1323-2, Gallery).
Figure 1323-2 – Gallery
GARAGE, RESIDENTIAL – An Accessory Structure, portion of a main Building, or Building attached thereto, used for the storage of private motor Vehicles owned and used by the occupants of the building to which it is accessory.
GARAGE, SERVICE – A garage, other than a Residential Garage, where motor Vehicles, Trailers, or other types of equipment are stored, equipped for operation, repaired, or kept for remuneration, hire or sale.
HISTORIC DISTRICT – Means a geographically definable area, designated as historic on a national, state or local register, possessing a significant concentration, linkage or continuity of Sites, Buildings, Structures or objects united historically or aesthetically by plan or physical development.
HISTORIC LANDMARK – Means a Site, Building, Structure or object designated as historic on a national, state or local register.
HISTORIC SITE – Means the location of a significant event, a prehistoric or historic occupation or activity, or a Building or Structure whether standing, ruined or vanished, where the location itself possesses historical, cultural or archaeological value regardless of the value of any existing Structure, and designated as historic on a national, state or local register.
HISTORIC STRUCTURE – Means any Structure that is:
(1) Listed individually in the National Register of Historic Places or preliminarily determined by the Secretary of the Interior as meeting the requirements for individual listing on the National Registry;
(2) Certified or preliminary determined by the Secretary of the Interior as contributing to the historical significance of a registered Historic District or a district preliminarily determined by the Secretary to quality as a registered Historic District;
(3) Individually listed on a state inventory of historic places in states with historic preservation programs that have been approved by the Secretary of the Interior; or
(4) Individually listed on a local inventory of historic places in communities with historic preservation programs that have been certified either:
A. By approved state program as determined by the Secretary of the Interior; or
B. Directly by the Secretary of the Interior in states without approved programs.
HOME ASSOCIATION – An incorporated, nonprofit organization operating under recorded land agreements through which: 1) each lot and/or homeowner in a planned unit or other described land area is automatically a member and 2) each lot is automatically subject to a charge for a proportionate share of the expenses for the Home Association’s activities, such as common property maintenance.
IMPERVIOUS COVER – Any natural or man-made material utilized to cover, pave or re-surface any portion or area of a Lot whether permeable or impermeable excepting only soil, plants or vegetative coverings. Impervious cover shall include, among other materials, any form or mixture of concrete, stone, asphalt, tar, porous pavement, or other substance designed and intended to alter the natural state of the land. Impervious cover shall also include rooftops of Buildings and Structures.
INDIVIDUAL BUSINESS – A single establishment or business occupying one or more Buildings designed to function as a single enterprise which does not share off-street parking, Driveways, or other common facilities with an adjacent establishment or development.
INFILL DEVELOPMENT – Means to fill in vacant or underused land in existing communities with new development that blends in with its surroundings.
JUNK – Old or discarded scrap, copper, brass, iron, steel or other metals, or materials including but not limited to tires, household appliances, furniture, rope, rags, batteries, glass, rubber debris, waste, trash, construction debris, plumbing fixtures, or any discarded, dismantled, wrecked, scrapped, junk, or Nuisance motor Vehicles or parts thereof. Note building materials stored on Site for an active or pending construction project are not considered “junk” under this definition.
JUNK VEHICLE – Any motor vehicle, trailer, or semi-trailer, that does not display a lawful valid license plate or valid inspection decal upon a vehicle which is not in operating condition, or any vehicle which has been partially or totally dismantled, wrecked, extensively damaged or deteriorated, or is not capable of lawful operation on public roads
KARST – A type of geology that is formed over limestone, dolomite or gypsum by solution of the rock and is characterized by closed depressions or Sinkholes, caves and underground drainage.
KENNEL – Any Building or Structure and/or land used, designed, or arranged for housing, boarding, breeding, or care of more than two (2) adult dogs or cats kept or bred for hunting, sale, exhibition, or domestic use or other domestic animals for profit, but not including those animals raised for agricultural purposes.
LAND AREA – Land Area refers to net land area exclusive of Streets and other Public Space.
LANDOWNER – The legal owner of land as reflected in the tax records of the Sheriff of Berkeley County.
LOT – A parcel of land of at least sufficient size to meet minimum zoning requirements for use, coverage and area, and to provide such yards and other open spaces as are herein required, and may consist of:
(1) A single lot of record;
(2) A portion of a lot recorded; and
(3) A combination of complete lots of record, of complete lots of record and portions of lots of record, or of portions of lots of records, provided that in no case of division or combination shall any residual lot or parcel be created which does not meet the requirements of this Ordinance. The term “lot of record” means the land designated as a separate and distinct parcel of land on a legally recorded subdivision or in a legally recorded deed filed in the Land Records of Berkeley County. A lot shall have its principal frontage on a public street or way, except where permanently established access easements, approved by the Planning Commission, are provided, as in a townhouse development or planned community development. The frontage requirements shall not apply to farm dwellings or vacation dwellings in isolated areas.
LOT AREA PER DWELLING UNIT – That portion of the lot area required for each dwelling unit located on a zoning lot.
LOT COVERAGE – That portion of a zoning lot that, when viewed directly from above, would be covered by a building or any part of a building. However, any portion of such building covered by a roof that qualifies as open space shall not be included in the lot coverage.
LOT DEPTH – The average horizontal distance between the front lot line and the rear lot line.
LOT WIDTH – The horizontal distance between the side Lot lines measured at the mid-point of the side Lot lines, or the length of the Frontage between said Lot lines, whichever is greater.
Figure 1323-3 Lot Diagram below illustrates terminology used in this Ordinance with reference to Corner Lots, Interior Lots, Reversed Frontage Lots, and Through Lots:
Figure 1323-3 – Lot Diagram
A. CORNER LOT – A Lot located at the intersection of two or more streets. A Lot abutting on a curved street or streets shall be considered a corner lot if straight lines drawn from the foremost points of the side lot lines to the foremost points of the lot meet at an interior angle of less than one hundred thirty-five (135) degrees. See lots marked A(1) in Figure 1323-3.
B. INTERIOR LOT – A Lot other than a Corner Lot with only one frontage on a street other than an Alley. See Lot C Figure 1323-3.
C. THROUGH LOT – A Lot other than a Corner Lot with frontage on more than one Street other than an Alley. Through lots with frontage on two streets may be referred to as double frontage lots. See Lot C in Figure 1323-3.
D. REVERSED FRONTAGE LOT – A lot to which the frontage is at right angles or approximately right angles to the general pattern in the area involved. A Reversed Frontage Lot may also be a Corner Lot or an Interior Lot (see Lots A-D and B-D in Figure 1323-3). A reverse frontage lot is also a Lot extending between and having frontage on a freeway, arterial, or collector Street and a local street and with vehicular access solely from the latter.
E. PIPE STEM (FLAG) LOT - A Lot which is occupied or intended to be occupied by a one-family dwelling, the width of which is less than eighty percent (80%) of the minimum lot width at any point between the front lot line and the building setback line, the width being determined by a line which is perpendicular to any side lot line (Figure 1323-4).
Figure1323-4 – Pipe Stem (Flag) Lot
LOT LINE, FRONT – A line running along front of the lot separating it from the Street. In a “Through Lot,” both lines abutting the streets are deemed “front lot lines.”
MANSARD – A steeply pitched roof, pitched at such an angle as to resemble a building wall.
MARQUEE – Any permanent roof-like Structure projecting beyond a Building or extended along and projecting beyond the wall of the Building, generally designed and constructed to provide protection from the weather (Figure 1323-5, Marquee).
Figure 1323-5 – Marquee
MAXIMUM DENSITY – Shall mean the maximum number of Dwelling Units per acre.
MOTOR HOME – A Vehicle designed to provide temporary living quarters and built into an integral part of or permanently attached to a self-propelled licensed motor Vehicle, chassis or van including: (1) Type A Motor Home built on an incomplete truck chassis with the truck cab constructed by the second stage manufacturer; (2) Type B Motor Home consisting of a van-type Vehicle which has been altered to provide temporary living quarters; and (3) Type C Motor Home built on an incomplete van or truck chassis with a cab constructed by the chassis manufacturer.
MURAL – Artwork painted or applied directly on a wall or other permanent surface with the permission of the owner of said wall or surface and visible from the public right of way. A Mural shall not be a Sign.
NET BUILDABLE LAND AREA – When determining the allowed density for any given Lot in the City, the Net Buildable Land Area of the Site is used. Net Buildable Land Area, for the purpose of determining the allowed Dwelling Units for a Site, shall be calculated by subtracting areas where building is prohibited or subject to significant restrictions from the gross Lot area. The area remaining after these exclusions from the gross Lot area represents the Net Buildable Land Area. The following shall be deducted from the gross Lot area to determine Net Buildable Land Area:
(1) Sensitive areas including: Type I, II, III and IV wetlands, Riparian Buffers, Flood Plain area, and Sinkholes;
(2) Public rights-of-way and public easements, and private Streets and access corridors; and
(3) Areas dedicated to stormwater management, except for Low Impact Design stormwater management improvements that are included in the Open Space areas
NFPA – NATIONAL FIRE PROTECTION ASSOCIATION.
NUISANCE – A thing, act, occupation, condition or Use of property which shall continue for such length of time as to:
(1) Substantially annoy, injure or endanger the comfort, health, repose, or safety of the public; or
(2) In any way render the public insecure in life or in the Use of the property; or
(3) Greatly offend the public morals or decency; or
(4) Unlawfully and substantially interfere with, obstruct, or tend to obstruct or render dangerous for passage any Street, Alley, highway, navigable body of water or other public way.
OPEN SPACE – One or more areas of land and/or bodies of water within a development intended for the use and enjoyment of the residents living within the development. No more than fifty percent (50%) of the required Open Space may be a water body or impervious area. Open Space is calculated as a percentage of the total usable area of land in the development, with the following items excluded in such calculation from both Open Space and the total usable land: Buffer Areas, Streets, Sidewalks, off-street parking areas, traditional stormwater management areas, such as stormwater ponds [but stormwater management areas of low impact design, such as bioretention basins (rain gardens) shall be included], and other areas not practically usable by residents.
OWNER – The owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee, lessee or other Person in control of a property.
PAVED SURFACE – A level horizontal surface covered with a paving material comprised of asphalt or concrete.
PERMIT, BUILDING – A written statement or other signed document issued by the City Engineer/Planning Director or designee that permits construction or any change to the use of any property, as determined by the West Virginia State Building Code, including additions and alterations and certain accessory buildings or structures (i.e.: garages, decks, walls, fences, swimming pools, etc.).
PERMIT, SIGN – A written statement or other signed document issued by the City Engineer/Planning Director or designee that authorizes Sign Use in accordance with the provisions of Article 1331
of this Ordinance.
PERMIT, USE AND OCCUPANCY – A written statement or other signed document issued by the City Engineer/Planning Director or designee that authorizes Building or Structure Use and Occupancy in accordance with the provisions of this Ordinance.
PERSON – Any individual, partnership, firm, association, joint venture, public or private corporation, trust, estate, commission, board, public or private institution, utility, cooperative, county, city, town or other political subdivision of the State, any interstate body or any other legal entity.
PLANNING COMMISSION – The City of Martinsburg Planning Commission.
PLAT – A map, plan or layout showing the subdivision of land and indicating the location and boundaries of individual properties.
PLAZA – A Civic Space type designed for Civic purposes and Commercial Uses in
the more urban Transect Zones, generally paved and spatially defined by building
Frontages.
PLOT – A parcel of land consisting of one or more lots or portions thereof, which is described by reference to a recorded plat or metes and bounds.
PUBLIC SPACE – A public gathering spot or part of a neighborhood or downtown or other area within the public realm that helps promote social interaction and a sense of community. Possible examples may include such spaces as plazas, town squares, Parks, marketplaces, public commons and malls, public greens, piers, special areas within convention centers or grounds, sites within public buildings, lobbies, concourses, or public spaces within private buildings.
RECREATION, ACTIVE – A facility that has been constructed for organized recreational activities, primarily for core activities including sports (i.e., Site improved playing fields and ball courts), events (i.e., amphitheater for a concert), and playground facilities.
RECREATION, PASSIVE – Recreation open area which is generally left in its natural state for the enjoyment of outdoor recreation, or open area which is landscaped as gardens, sitting-out areas, waterfront promenades, paved areas for informal games, walking bridges, walking tunnels, hiking trails, jogging/fitness trails, bird watching facilities, fenced in areas for pets, public art, and public horticulture and agriculture areas.
REDEVELOPMENT – The process of developing land that is or has been previously developed.
REGULATORY FLOODWAY – The channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than a designated height.
RELIGIOUS INSTITUTION - A facility used primarily for religious assembly or worship and related religious activities.
RENEWABLE ENERGY – Energy that is generated from a resource that is replaced rapidly by a natural process such as power generated from the sun or from the wind.
RESTAURANT – An establishment where food and drink are prepared, served, and consumed primarily within the principal Building. The term includes lunchrooms, cafeterias, cafes, taverns, delicatessens, dinner theaters, pubs, soda fountains, and dining accommodations of public or private clubs.
RESTAURANT, FAST-FOOD – An establishment whose principal business is the sale of pre-prepared or rapidly prepared food directly to the customer in a ready-to-consume state for consumption either within the Restaurant Building or off premises.
RIPARIAN BUFFER – Vegetated areas next to water resources that protect water resources from nonpoint source pollution and provide bank Stabilization and aquatic and wildlife habitat.
RURAL TO URBAN TRANSECT – The Rural-to-Urban Transect is a system that places all of the elements of the built environment in useful order, from most rural to most urban. The rural-to-urban Transect is divided into six zones: natural (T1), rural (T2), sub-urban (T3), general urban (T4), center (T5), and core (T6). For the City of Martinsburg Zoning Ordinance, the Urban Transect uses zones T1 – T5. Also, see, TRANSECT and TRANSECT ZONE (T-ZONE).
SALVAGE – Old or scrap brass, copper, iron, steel, other ferrous or nonferrous materials, batteries or rubber and any junked, dismantled or wrecked machinery, machines or motor Vehicles or any parts of any junked, dismantled or wrecked machinery, machines or motor Vehicles.
SANITARY LANDFILL – A waste disposal facility where layers of garbage are covered, usually with layers of earth and a cap made of a synthetic membrane. Per Article 1327
, Sanitary Landfill is a prohibited Use.
SETBACK – The minimum horizontal distance required between the Building Line as defined herein and the related front, side or rear property line, unless otherwise allowed by this Ordinance. In cases where the property line is located within a Street, Alley, or other right-of-way for Vehicle access (e.g., for older parcels in Martinsburg where the property line is the center line of the Street), the required Setback shall be measured from the face of the curb if a curb exists, or otherwise from the edge of Street pavement, whichever applies.
SIDEWALK – That portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for the use of pedestrians.
SINKHOLE – Any natural depression formed as a result of subsurface removal of soil or rock materials and causing the formation of a collapse feature that exhibits internal drainage. The existence of a sinkhole shall be indicated by the uppermost closed depression contour lines on the United States Geological Survey (7.5-minute quadrangle topographic maps or as determined by field investigations.
SIGHT DISTANCE – The distance measured between the height of a driver’s eye and the height of an object without horizontal or vertical obstruction to the line of sight (See Figure 1323-6, Sight Distance)
Figure 1323-6 – Sight Distance
SITE – The parcel of land developed or being developed, or a designated portion thereof.
SLOPE – The face of an embankment or cut section; any ground whose surface makes an angle with the plane of the horizon. Slopes are usually expressed in a percentage based upon vertical difference in feet per one hundred (100) feet of horizontal distance.
SOLAR ENERGY, ACTIVE – The practice of using mechanical devices (e.g., solar panel system) to capture or deflect the sun’s energy. Active solar heating relies strongly on three components: a solar collector to absorb the solar energy, a solar storage system, and a heat transfer system to disperse the heat to the appropriate places in your home. Active heating systems can be divided into two categories: air systems and liquid systems.
SOLAR ENERGY, PASSIVE – The practice of non-mechanical devices (e.g., windows, walls, trees, Building placement and other simple techniques) to capture or deflect the sun’s energy.
SQUARE – A Civic Space type designed for Passive Recreation and Civic purposes,
spatially defined by building Frontages and consisting of Paths, lawns and trees,
formally disposed
STABILIZATION – The use of practices that prevent exposed soil from eroding.
STOOP – A private frontage wherein the Facade is aligned close to the Frontage line with the first Story elevated from the Sidewalk for privacy, with an exterior stair and landing at the entrance.
STREAM – As defined in West Virginia State Code Chapter 7-1-3U, any Watercourse, whether natural or man-made, distinguishable by banks and a bed, regardless of their size, through which water flows continually or intermittently, regardless of its volume.
STREAM CHANNEL – A natural or artificial Watercourse with a definite bed and banks that conducts continuously or periodically flowing water and shall include wet weather stream channels.
STREET – A street, avenue, boulevard, road, highway, freeway, parkway, lane, Alley, viaduct and any other ways used or intended to be used by vehicular traffic or pedestrians whether public or private. This definition shall not include Driveways.
STREET LINE – A line defining the edge of a Street right-of-way and separating the Street from abutting property or Lots (same as Lot line or right-of-way line). If, on the Comprehensive Plan of Streets and highways duly adopted by the City, a Street is scheduled for future widening, the proposed right-of-way line shown on the Comprehensive Plan shall be the Street Line.
STRUCTURE – Anything constructed, the use of which requires fixed location on the ground or attached to something having such location, but not including fences, power, gas, water, sewage or communication lines or poles, towers or pole structures, Sidewalks, Driveways or curbs.
STRUCTURE, PRINCIPAL – Also referred to as the principal Building. A Building that contains the dominant Use of the Lot. It is typically located toward the front of the Lot in the front Build-To Line or behind the front Setback.
SWALE – A low or slightly depressed natural area for drainage.
SWIMMING POOL – Any Structure intended for swimming or recreational bathing that contains water over twenty-four (24) inches deep. This includes in-ground, aboveground, and on-ground Swimming Pools, hot tubs, and spas.
TATTOOING – Any method of placing ink or other pigment into or under the skin or mucosa by the aid of needles or any other instrument used to puncture the skin, resulting in permanent coloration of the skin or mucosa. This includes all forms of cosmetic tattooing.
THEATER – A Building or part of a Building devoted to showing motion pictures, or for dramatic, musical, or live performances.
TOP OF BANK – The lines depicted on the Flood Insurance Rate Maps delineating each side of a Stream indicate the Top of Bank. In the field, a professional familiar with fluvial geomorphology should document the Top of Bank. When a professional is not employed the Top of Bank will be considered to be the top of the first significant slope landward of the water’s edge when it is followed by at least fifty (50) feet of relatively flat land.
TRAILER – A Vehicle with or without motor power designed for carrying persons or property and for being drawn by a motor Vehicle.
TRANSECT – A cross-section of the environment showing a range of different habitats. The rural-urban Transect of the human environment used in the SmartCode template is divided into six (6) Transect Zones. These zones describe the physical form and character of a place, according to the density and intensity of its land use and urbanism.
TRANSECT ZONE (T-ZONE) – One of several areas on a Zoning Map regulated by the SmartCode. Transect zones are administratively similar to the land use zones in conventional codes, except that in addition to the usual building use, density, height, and Setback requirements, other elements of the intended habitat are integrated, including those of the private Lot and Building and Public Frontage.
TRANSPARENCY – The measurement of the percentage of a façade that has highly transparent, low reflectance glass with a minimum fifty percent (50%) transmittance factor and a reflectance factor not greater than one quarter percent (0.25%).
TRASH DUMPSTER – Any temporary ground stored receptacle for refuse, garbage, waste, etc.
UNNECESSARY HARDSHIP – A deprivation of the economic Use and benefit of property resulting under the Martinsburg Zoning Ordinance due to unique characteristics of the property that were not created by the applicant for a Variance. An Unnecessary Hardship may justify the granting of a Variance if the Board of Zoning Appeals makes the findings specified in Section 1321.11
(d)(3) of this Ordinance. The burden of proving an Unnecessary Hardship rests upon the applicant for the Variance.
USABLE FLOOR AREA – Total of all fully-enclosed area within a Building that is not occupied by fixed structural elements (such as columns or walls). Fully enclosed area that is available for the exclusive use of a building occupant for habitation, personnel, materials, furniture, fixtures and equipment.
USE – Any purpose for which a Building or Structure, including Signs, or a tract of land may be designed, arranged, intended, maintained, or occupied, or any activity, occupation, business, or operation carried on, or intended to be carried on, in a Building or other Structure or on a tract of land. The term Permitted Use or its equivalent shall not be deemed to include any Legally Nonconforming Use.
USE, ACCESSORY (OR ACCESSORY STRUCTURE) – A Use or Structure customarily incidental and subordinate to the principal Permitted Use or an approved Special Exception Use and located on the same Lot as the Principal Use. Examples include, but not limited to, a detached Garage, shed, above ground Swimming Pool, and satellite dish.
USE, LEGALLY NONCONFORMING – (commonly referred to as a “Grandfathered Use”) – Any Use of land, 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, which Use may be continued without prohibition by this Ordinance as long as such Use is maintained, subject to the provisions of this Ordinance.
USE, NON-CONFORMING – A Use that was valid when brought into existence but, by subsequent regulation or ordinance, which has been lawfully continued and which does not now conform with the Use regulation or ordinance. “Nonconforming Use” is a generic term and includes (1) nonconforming Structures (by virtue of size, type of construction, location on land, or proximity to other Structures), (2) Nonconforming Use of a conforming building, (3) Nonconforming Use of a nonconforming building, and (4) Nonconforming Use of land. Thus, any Use lawfully existing on any piece of property that is inconsistent with a new or amended regulation or ordinance, and that in turn is a violation of the amendment subsequently adopted, will be a Nonconforming Use.
USE, PERMITTED – Means any Use allowed by right within a Zoning District, subject to the restrictions applicable to that Zoning District, and that is not a Special Exception Use.
USE, PRINCIPAL – The dominant purpose for which a Lot or Building is utilized.
USE, SPECIAL EXCEPTION – A Use conditionally permitted in a particular Zoning District under this Ordinance that may be undertaken only following the issuance of a Special Use Permit by the Board of Zoning Appeals pursuant to standards and criteria established in this Ordinance.
USE, TEMPORARY – Any Use authorized under and in accordance with the provision of this Ordinance which is limited to the time in which such Use may legally continue.
VARIANCE – A relaxation of the terms of the Zoning Ordinance where the Board of Zoning Appeals makes the findings specified in Section 1321.10
; a deviation from the minimum standards of the Zoning Ordinance and shall not involve permitting land Uses that are otherwise prohibited in the Zoning District nor shall it involve changing the Zoning District classification of a parcel of land. W.Va. Code Chapter 8A-7-11.
VEHICLE – A device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks or wheelchairs.
VEHICLE, NON-COMMERCIAL – Any motor Vehicle other than a Motor Home or Commercial Vehicle.
VEHICLE, RECREATIONAL – A Vehicle which is: (a) built on a single chassis; (b) 400 square feet or less when measured at the largest horizontal projection; (c) designed to be self-propelled or permanently towable by a light duty truck; and (d) designed primarily not for use as a permanent Dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.
VEHICLE, UNLICENSED – A Vehicle without lawfully displayed, current, and valid license plates registered and issued to that Vehicle by the West Virginia Division of Motor Vehicles or the appropriate agency of another State.
VETERINARY OFFICES, CLINICS, SERVICES AND LABORATORIES – An establishment for the medical or custodial care of animals. Boarding of animals is limited to short term stays associated with medical care provided.
WATERCOURSE – A permanent or intermittent Stream or other body of water, either natural or man-made, which gathers or carries surface water.
WATERSHED – A defined land area drained by a river, Stream, drainage ways or system of connecting rivers, Streams, or drainage ways such that all surface water within the area flows through a single outlet.
WATERWAY – A channel that directs surface runoff to a Watercourse, or to the public storm drain.
YARD – An open unoccupied space on the same Lot with a main Building or Structure.
YARD, FRONT – A Yard situated between a Street Line and a line running with the Farthest Facing Wall or Walls of the main Building or Structure on the same Lot, with said line projected to the boundaries of the Lot.
YARD, REAR – A Yard situated between the rear line of a Lot and a line running with the Farthest Facing Wall or walls of the main Building or Structure on the same Lot, with said line projected to the boundaries of the Lot. All Lots shall have a designated Rear Yard.
YARD, REQUIRED – A Yard between each Lot line or Street Line, as the case may be, and its respective Building Restriction Line, the depth of which is equal to the required Setback.
YARD, SIDE – A Yard situated between a sideline of a Lot and a line running with the Farthest Facing Wall or walls of the main Building or Structure on the same Lot, with said line projected to the boundaries of the Lot. Any Lot line not a rear line or a front line shall be deemed a sideline.
YARD SALE – Includes all sales entitled “garage sale,” “lawn sale,” “yard sale,” “attic sale,” “rummage sale,” or “flea market sale,” or any similar casual sale of tangible personal property that is advertised by any means whereby the public at large is or can be made aware of said sale.
ZONE BUFFER – A strip established to separate the protect one type of land use from another.
ZONING DISTRICT – A portion of territory designated on the official Zoning Map within which certain uniform regulations and requirements of various combinations thereof apply under provisions of this Ordinance.
ZONING MAP – The official Zoning Map of the City adopted, and incorporated in its entirety, as part of this Ordinance pursuant to Section 1325.02
of this Ordinance.
(Ord. 2021-07. Passed 7-21-21.)