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city of martinsburg west virginia zoning ordinance
CITY OF MARTINSBURG WEST VIRGINIA ZONING ORDINANCE February 1970 Planning and Building Department 232 North Queen Street Martinsburg, WV 25401 Ph: (304) 264-2131 Fax: (304) 264-2136 Martinsburg Zoning Ordinance Contents 2 Comprehensive Development Plan, Martinsburg, West Virginia Amended Zoning Ordinance Part I: Commentary on the Amended Zoning Ordinance I. Introduction ..................................................................................................... 7 II. Commentary on the Amended Zoning Ordinance Text ................................ 16 III. Recommended Zoning Map Amendments ................................................... 25 Part II: Amended Text of the Zoning Ordinance The proposed amended text of the Martinsburg Zoning Ordinance is numbered separately. A detailed table of contents is included with the amended text. The preparation of this report was financially aided through a federal grant from the Department for Housing and Urban Development, under the Urban Planning Assistance Program authorized by Section 701 of the Housing Act of 1954, as amended. This report was prepared under the supervision of the Planning and Research Division of the West Virginia Department of Commerce. Prepared for the Martinsburg Planning Commission by Marcou, O’Leary and Associates—Planner. February 1970 3 CONTENTS AMENDED MARTINSBURG ZONING ORDINANCE ARTICLE Section I. GENERAL PROVISIONS 100 Title .............................................................................................. 27 101 Legislative Authority ...................................................................... 27 102 Declaration of Facts ...................................................................... 27 103 Statement of Legislative Intent ...................................................... 27 104 Jurisdiction .................................................................................... 28 ARTICLE Section II. DEFINITIONS 200 Definition of Terms ................................................................... 30-47 ARTICLE Section III. ESTABLISHMENT OF ZONING DISTRICTS 300 Establishment of Zoning Districts .................................................. 49 301 Official Zoning Map ....................................................................... 49 302 Interpretation of Zoning Maps ....................................................... 50 IV. APPLICATION OF REGULATION 400 Application of Regulations............................................................. 53 410 Nonconforming Lots, Structures and Uses.................................... 54 420 Lot, Yard, and Building Requirements .......................................... 57 421 General Lot Requirements ............................................................ 59 422 General Yard Requirements ......................................................... 59 423 Height Requirements .................................................................... 61 424 Court Requirements ...................................................................... 62 425 Use of Flood Areas ....................................................................... 62 426 Excavation .................................................................................... 63 427 Provision of Water and Sewage Systems ..................................... 63 430 Off-Street Parking and Loading................................................ 64-68 440 Signs ........................................................................................ 69-73 441 Signs Requiring a Permit .............................................................. 73 V. DISTRICT REGULATIONS 500 Format of District Regulations ....................................................... 77 501 Types of Development Review ..................................................... 77 510 Residential Districts ...................................................................... 77 511 Rural Residential District (RR) ...................................................... 78 512 Suburban Residential District (RS) ............................................... 78 513 Urban Residential A District (RUA) ............................................... 78 514 Urban Residential B District (RUB) ............................................... 78 515 Townhouse District (RT) ............................................................... 79 516 Multi-family Low-density District (RML) ......................................... 80 517 Multi-family Medium-density District (RMM) .................................. 80 520 Business Districts.......................................................................... 80 521 Local Business District (BL) .......................................................... 80 522 Service Business District (BS) ...................................................... 81 523 Downtown Business District (BD) ................................................. 82 524 Community Business District (BC) ................................................ 82 525 Highway Business District (BH) .................................................... 83 530 Industrial Districts.......................................................................... 83 531 Light Industrial District (IL) ............................................................ 83 ARTICLE Section ARTICLE Section 4 Table of Contents (cont’d) 532 General Industrial District (IG)....................................................... 84 533 Extractive Industrial District (IE) .................................................... 85 540 Planned Development Districts ..................................................... 86 541 Planned Residential District (RP) .................................................. 87 542 Planned Business District (BP) ..................................................... 89 543 Planned Industrial District (IP)....................................................... 90 550 Supplemental Districts .................................................................. 91 551 Highway Interchange District ........................................................ 91 552 Historic Preservation District ......................................................... 93 553 Flood Plain District ................................................................... 93-97 560 Table of Zoning District Uses ................................................. 98-104 ARTICLE Section VI. DESIGN REGULATIONS 600 Purpose ...................................................................................... 107 601 Accessory Structure and Uses .................................................... 107 602 Temporary Structures and Uses ................................................. 109 610 Natural Resource Uses ............................................................... 109 611 Agriculture ................................................................................... 109 612 Forestry....................................................................................... 109 613 Mineral Extraction ....................................................................... 110 620 Residential Use ........................................................................... 110 621 One- and Two-Family Dwellings ................................................. 110 622 Patio House Development .......................................................... 111 623 Townhouse Development ........................................................... 111 624 Multiple Family Dwelling.............................................................. 113 625 Mobile Homes ............................................................................. 114 626 Cluster Development .................................................................. 116 627 Transit Housing ........................................................................... 117 630 Business Uses ............................................................................ 118 631 Retail Trade ................................................................................ 118 632 Business and Personal Services................................................. 118 633 Wholesaling and Processing ....................................................... 119 634 Automotive and Related Services ............................................... 119 635 Animal Sales and Service ........................................................... 119 636 Commercial Amusements ........................................................... 120 640 Industrial Uses ............................................................................ 120 650 Public and Semipublic Uses........................................................ 120 651 Open Space Uses ....................................................................... 120 652 Public and Institutional Uses ....................................................... 121 660 Public Utility Use ......................................................................... 122 ARTICLE Section VII. DEVELOPMENT REVIEW 700 Purpose ...................................................................................... 124 701 Site Plan Review .................................................................. 124-129 702 Special Exceptions...................................................................... 130 VIII. ADMINISTRATION AND ENFORCEMENT 800 Duties of Building Inspector ........................................................ 133 801 Permits ........................................................................................ 133 802 Schedule of Fees and Charges................................................... 135 803 Enforcement of Penalties for Violation ........................................ 135 ARTICLE Section 5 Table of Contents (cont’d) ARTICLE IX. BOARD OF ZONING APPEALS Section 900 General Organization .................................................................. 137 901 Powers and Duties ...................................................................... 138 902 Procedure for Appeals and Special Exceptions .......................... 139 903 Conditions for Granting an Appeal .............................................. 140 904 Decisions of the Board of Appeals .............................................. 141 905 Time Limit ................................................................................... 141 ARTICLE Section X. ADMINISTRATION OF THE HISTORIC PRESERVATION DISTRICT 1000 Purpose..................................................................................... 144 1001 Establishment of a Historic District............................................ 144 1002 Historic Preservation District Commission ................................ 145 1003 Plan Review Requirements ....................................................... 146 1004 Procedure for Plan Review ....................................................... 146 1005 HP Historic Preservation District ............................................... 147 1006 Variances .................................................................................. 149 1007 Exceptions ................................................................................ 149 1008 Enforcement.............................................................................. 149 1009 Appeals ..................................................................................... 150 ARTICLE Section XI. AMENDMENTS 1100 Zoning Ordinance Amendments ............................................... 154 1101 General Amendment Application Procedure ............................. 154 1102 Text Amendment Procedure ..................................................... 154 1103 Map Amendment Procedure ..................................................... 154 1104 Pre-hearing Procedure.............................................................. 155 1105 Hearing Procedure and Planning Commission Report.............. 156 1106 Action of City Council ................................................................ 156 ARTICLE Section XII. ORDINANCE PROVISIONS 1200 Provisions of Ordinance are Minimum Requirements ............... 159 1201 Validity ...................................................................................... 159 1202 General Repealer and Effective Date ....................................... 159 1203 Separability Clause ................................................................... 159 6 I. INTRODUCTION Martinsburg’s first comprehensive plan was prepared in 1954 and, as part of that work, a Zoning Ordinance was prepared and adopted. That Zoning Ordinance has, in general, served the City well for the past fifteen (15) years. However, as with most legislation, the passage of time has revealed the need for some changes, both in the text and the zoning maps. As part of the present planning program to update the Martinsburg Comprehensive Plan, the Planning Commission is reviewing the Zoning Ordinance to determine what amendments are necessary. The technical studies in this work have been undertaken by the Commission’s planning consultant, the firm of Marcou, O’Leary and Associates. REASONS FOR AMENDING THE ZONING ORDINANCE There are a number of reasons for amending the Zoning Ordinance, as listed below. 1. New State Enabling Legislation: New state enabling Legislation covering planning and zoning has been passed since 1954. The Ordinance should conform to the provisions of state acts. 2. Eliminate Unsatisfactory Provisions: Experience has indicated that some sections of the Ordinance are unsatisfactory or unnecessary, and these sections should be modified or eliminated. 3. Clarification of Ordinance: Experience has indicated that the working of some sections is hard to understand, and those problems should be corrected. 4. Improve Arrangement of Ordinance: Review of the Ordinance indicates that rearrangement of provisions into more logical classifications would improve understanding and usefulness of the Ordinance. 5. New Land Development Control Concepts: The practice of Planning and Zoning has progressed since 1954, and applicable new zoning concepts should be incorporated into the amended ordinance. 6. New Forms of Development: New forms of land development have appeared in recent years, such as Planned Unit Developments and the new forms of townhouses. Provisions for these developments should be incorporated in the amended Ordinance. 7. Provide Compatibility with County Ordinance: As part of the county planning program, a Zoning Ordinance for the county has been proposed. To the extent possible, provisions in the City and County Zoning Ordinances should be compatible. 8. Update the Zoning Map: In some instances the Zoning Map needs to be updated to reflect new, changed conditions, and to be consistent with the updated Martinsburg Comprehensive Plan. 7 APPROACH TO AMENDING THE ORDINANCE In preparing the amended Ordinance, an effort has been made to retain as much of the substance and spirit of the existing Zoning Ordinance as possible, except in removing obsolete or unneeded material and in adding new material. A comparison of the two tables in the next section indicates that almost all of the existing provisions have been retained in some form. In some cases it was possible to retain existing sections entirely intact, changing only the number of the sections. Other sections were retained essentially intact, with only minor changes in wording. However, some sections have undergone substantial rewriting. In cases where major rewriting was necessary, we have tried to use the same or similar language as used in the proposed county zoning ordinance. Finally, some material has been completely removed and entirely new material has been added. Such changes are indicated in the tables only when a complete new section is added or removed. Some of the new text is based in part on, The Text of a Model Zoning Ordinance.1 In discussing the proposed amendments in this commentary, the following terms have been used: Existing Ordinance: The existing Zoning Ordinance of Martinsburg, adopted in 1954 Amended Ordinance: The draft of the amended Zoning Ordinance accompanying this commentary, prepared by Marcou, O’Leary and Associates for review by the Martinsburg Planning Commission. County Ordinance: The final draft Zoning Ordinance for Berkeley County being reviewed by the Berkeley County Planning Commission. This Ordinance has not yet been adopted by the County Court. ARRANGEMENT OF THE AMENDED ORDINANCE One of the major problems found in the existing Ordinance is the arrangement of the different sections. In some cases, related provisions are not grouped together nor are they arranged in a consistent manner. Some material seems to be repeated unnecessarily. As a first step, the rearrangement of different sections should improve the understanding and usefulness of the Ordinance. To do this, we have utilized the same overall system of the Ordinance. To do this, we have utilized the same overall system of arrangement used in the county ordinance. The Zoning Ordinance constitutes a chapter of the Martinsburg City Code. The chapter will be divided into “Articles,” which in turn are divided into Sections. The numbering system is as follows: Article I Section 100 Section 100.1 Section 100.11 There are twelve (12) major divisions of the amended Ordinance, as indicated below. 1 Fred H. Bair, Jr., and Ernest R. Bartley, The Text of Model Zoning Ordinance (Third Edition), American Society of Planning Officials: Chicago, 1966. 8 GENERAL ARRANGEMENT OF AMENDED MARTINSBURG ZONING ORDINANCE Article I. General Provisions Article II. Definitions Article III. Establishment of Zoning Districts Article IV. General Regulations Article V. District Regulations Article VI. Design Regulations Article VII. Development Review Article VIII. Administration and Enforcement Article IX. Board of Zoning Appeals Article X. Administration of the Historic Preservation District Article XI. Amendments Article XII. Ordinance Provisions To provide a better understanding of the rearrangement of the existing section, two tables have been prepared. Table I is a listing of the current arrangement of the Ordinance, cross-referenced to the new sections. Table II is a listing of the sections of the new Ordinance, cross-referenced to the old sections. 9 TABLE I PLACEMENT OF EXISTING SECTIONS IN AMENDED MARTINSBURG ZONING ORDINANCE EXISTING SECTION-NUMBER AND TITLE NEW SECTION NUMBER 1. Recitation of legislative authority 2. Method of regulation 3. Declaration of facts 4. Declaration of policy 5. Declaration of enactment 6. Purpose in view 7. Preliminary surveys and studies 8. Division of city into districts; district zone map 9. Regulations generally 10. Permissions and prohibitions 11. Modification by provisions appearing later in Ordinance________ 12. Uses permitted in residential A districts | 13. Uses permitted in residential AA districts | 14. Uses permitted in residential B districts | 15. Uses permitted in residential BB districts | 16. Uses permitted in residential C districts | 17. Uses prohibited in residential districts | 18. Shopping center districts generally | 19. Uses permitted in shopping center districts | 20. Uses prohibited in shopping center districts | 21. Uses permitted in service districts | 22. Uses prohibited in service districts | 23. Uses permitted in retail F and FF districts | 24. Uses prohibited in business retail F and FF districts | 25. Uses permitted in light industrial districts | 26. Uses prohibited in light industrial districts | 27. Uses permitted in general industrial G districts | 28. Uses prohibited in general industrial G districts | 29. Uses permitted in general industrial GG districts | 30. Uses prohibited in general industrial GG districts | 31. Uses permitted in mineral industrial districts | 32. Uses prohibited in mineral industrial districts | 33. Uses permitted in rural-agricultural districts | 34. Uses prohibited in rural-agricultural districts_________________ | 35. Classification and designation of uses and districts 36. General use regulations 37. Nonconforming uses 38. Height of buildings generally; side and rear yards 39. General height exceptions 40. General regulations and exceptions 41. Front yard regulations and exceptions 42. Off-street parking 43. Loading space 101 * 102 103 * 103 * 300, 301 400 * —Combined in text and table in Article V * 410 410 423 423 422 422 430 430 10 EXISTING SECTION-NUMBER AND TITLE 44. Vision Clearance 44A. Conditions relative to certain special buildings. 44B. Performance standards required for certain uses of land 45. Interpretation of maps 46. Public record of maps 47. Building permit; action by board of adjustment 48. Board of adjustment generally 49. Powers of board of adjustment 49A. Decisions, etc., of board of adjustment 50. Same—Court review 51. Special exceptions 52. Rules of procedure of board of adjustment 53. Fact bases for consideration of board of adjustment 54. Enumeration of special use exceptions generally 55. Special Yard exceptions 56. Conditional permits 57. Change of zoning by exception 58. Restoration of buildings 59. Permits good for six months 60. Amendment, etc., of this Ordinance 61. Definitions 62. Severability of provisions of Ordinance 63. Penalty for violation 64. Remedies 65. Conflict with other laws 66. Evidence of authenticity and identification of maps 67. Effective date NEW SECTION NUMBER 422 Article VI Article VI 302 301 801 900, 902, 903 901 901 906 702 902 702, 902 410 422, 903 702 901 410 801 Article XI 200 1203 803 803 1200, 1201 301 1202 * Material Deleted 11 TABLE II RELATION OF SECTIONS IN AMENDED MARTINSBURG ZONING ORDINANCE TO EXISTING SECTIONS SECTION NUMBER & TITLE—AMENDED ORDINANCE CORRESPONDING SECTION IN EXISTING ORDINANCE ARTICLE Section I. GENERAL PROVISIONS 100 Title ............................................................................................ New 101 Legislative Authority .......................................................................... 102 Declaration of Facts .......................................................................... 103 Statement of Legislative Intent .......................................................... 104 Jurisdiction ................................................................................. New ARTICLE Section II. DEFINITIONS 200 Definition of Terms ............................................................................ ARTICLE Section III. ESTABLISHMENT OF ZONING DISTRICTS ..................................... 300 Establishment of Zoning Districts ...................................................... 301 Official Zoning Map ........................................................................... 302 Interpretation of Zoning Maps ........................................................... 303 Annexation of Additional Area .................................................... New ARTICLE Section IV. GENERAL REGULATIONS 400 Application of Regulations................................................................. 410 Nonconforming Lots, Structures and Uses........................................ 420 Lot, Yard, and Building Requirements .............................................. 421 General Lot Requirements ......................................................... New 422 General Yard Requirements ............................................................. 423 Height Requirements ........................................................................ 424 Court Requirements ................................................................... New 425 Use of Flood Areas .................................................................... New 426 Excavation ................................................................................. New 427 Provision of Water and Sewage Systems .................................. New 430 Off-Street Parking and Loading......................................................... 440 Signs .......................................................................................... New ARTICLE Section V. DISTRICT REGULATIONS 500 Format of District Regulations .................................................... New 501 Types of Development Review .................................................. New 510 Residential Districts .......................................................................... 511 Rural Residential District (RR) .......................................................... 512 Suburban Residential District (RS) ............................................ New 513 Urban Residential A District (RUA) ................................................... 514 Urban Residential B District (RUB) ................................................... 515 Townhouse District (RT) ............................................................ New 516 Multi-family Low-density District (RML) ...................................... New 517 Multi-family Medium-density District (RMM) ............................... New 520 Business Districts.............................................................................. 521 Local Business District (BL) ....................................................... New 522 Service Business District (BS) .......................................................... 523 Downtown Business District (BD) .............................................. New 524 Community Business District (BC) .................................................... Section 12 Table of Contents (cont’d) 525 Highway Business District (BH) ................................................. New 530 Industrial Districts.............................................................................. 531 Light Industrial District (IL) ................................................................ 532 General Industrial District (IG)........................................................... 533 Extractive Industrial District (IE) ........................................................ 540 Planned Development Districts ......................................................... 541 Planned Residential District (RP) ............................................... New 542 Planned Business District (BP) ......................................................... 543 Planned Industrial District (IP).................................................... New 550 Supplemental Districts ...................................................................... 551 Highway Interchange District ..................................................... New 552 Historic Preservation District ...................................................... New 560 Table of Zoning District Uses .......................... New Format for 12-34 ARTICLE Section ARTICLE Section ARTICLE Section VI. DESIGN REGULATIONS ................................................................... 600 Purpose ..................................................................................... New 601 Accessory Structure and Uses ................................................... New 602 Temporary Structures and Uses ................................................ New 610 Natural Resource Uses .............................................................. New 611 Agriculture .................................................................................. New 612 Forestry............................................................................................. 613 Mineral Extraction ...................................................................... New 620 Residential Use .......................................................................... New 621 One- and Two-Family Dwellings ................................................ New 622 Patio House Development ......................................................... New 623 Townhouse Development .......................................................... New 624 Multiple Family Dwelling............................................................. New 625 Mobile Homes ............................................................................ New 626 Cluster Development ................................................................. New 627 Transit Housing .......................................................................... New 630 Business Uses ........................................................................... New 631 Retail Trade ............................................................................... New 632 Business and Personal Services................................................ New 633 Wholesaling and Processing ...................................................... New 634 Automotive and Related Services .............................................. New 635 Animal Sales and Service .......................................................... New 636 Commercial Amusements .......................................................... New 640 Industrial Uses ........................................................................... New 650 Public and Semipublic Uses....................................................... New 651 Open Space Uses ...................................................................... New 652 Public and Institutional Uses ...................................................... New 660 Public Utility Use ........................................................................ New VII. DEVELOPMENT REVIEW ................................................................ 700 Purpose ..................................................................................... New 701 Site Plan Review ........................................................................ New 702 Special Exceptions............................................................................ VIII. ADMINISTRATION AND ENFORCEMENT ...................................... 800 Duties of Building Inspector .............................................................. 801 Permits .............................................................................................. 13 Table of Contents (cont’d) 802 Schedule of Fees and Charges.................................................. New 803 Enforcement of Penalties for Violation .............................................. ARTICLE Section IX. BOARD OF ZONING APPEALS......................................................... 900 General Organization ........................................................................ 901 Powers and Duties ............................................................................ 902 Procedure for Appeals and Special Exceptions ................................ 903 Conditions for Granting an Appeal .................................................... 904 Time Limit .................................................................................. New 905 Duties of Building Inspector, Board of Appeals, Members of the City Council, and Courts on Matters of Appeals ................................ New 906 Appeals from Decisions of Board of Zoning Appeals ........................ ARTICLE X. ADMINISTRATION OF THE HISTORIC PRESERVATION DISTRICT ................................................................................................ 1000 Purpose.................................................................................... New 1001 Establishment of a Historic District........................................... New 1002 Historic Preservation District Commission ............................... New 1003 Plan Review Requirements ...................................................... New 1004 Procedure for Plan Review ...................................................... New 1005 Variances ................................................................................. New 1006 Exceptions ............................................................................... New 1007 Enforcement............................................................................. New 1008 Appeals .................................................................................... New Section ARTICLE Section XI. AMENDMENTS .................................................................................. 1100 Zoning Ordinance Amendments ..................................................... 1101 General Amendment Application Procedure ................................... 1102 Text Amendment Procedure ........................................................... 1103 Map Amendment Procedure ........................................................... 1104 Pre-hearing Procedure.................................................................... 1105 Hearing Procedure and Planning Commission Report.................... 1106 Action of City Council ...................................................................... ARTICLE Section XII. ORDINANCE PROVISIONS .............................................................. 1200 Provisions of Ordinance are Minimum Requirements ..................... 1201 Validity ..................................................................................... New 1202 General Repealer and Effective Date ............................................. 1203 Separability Clause ......................................................................... 14 II. COMMENTARY ON THE AMENDED ZONING ORDINANCE TEXT This section provides an article-by-article commentary on the major features of the amended Zoning Ordinance text, with special emphasis on features, which are new or different from features in the existing Ordinance. The placement of provisions in the existing ordnance can be found by consulting the cross-referenced index tables in the previous section. PREFACE The Preface will be drafted by the City Attorney. ARTICLE I: GENERAL PROVISIONS The provisions of this article are intended to outline the general purposes for which zoning is undertaken and how it is applied. 1. Section 100. Title simply indicates the title of the Ordinance and makes clear that the Ordinance includes both text and the zoning map. 2. Section 101. Legislative Authority incorporates material found in Section I of the existing Ordinance. The citation of the appropriate sections of the State Code is arranged to correspond with the revised State Code. 3. Section 102. Declaration of Facts retains material in Section 3 of the existing Ordinance. Some material is deleted and other changes made to make this section clearer. 4) Section 103. Statement of Legislative Intent serves the same purpose as the material in Section 4 of the existing Ordinance. However, the material has been condensed and clarified. 5. Section 104. Jurisdiction. The provisions of these regulations shall apply to all lands within the City of Martinsburg that are outlined on the Zoning Map adopted in 1954 and subsequently amended. 6. Sections 5, 6, and 7 of the existing Ordinance are deleted since it is believed they are either repetitious or unnecessary. Some material from these sections is incorporated in other sections of the amended Ordinance. ARTICLE II: DEFINITIONS Definitions are found in Section 61 of the existing Ordinance. Experience has indicated that the existing list is incomplete and, in some cases, the existing definitions are not clear. In the amended Ordinance, definitions are placed in a separate article. Definitions are listed in alphabetical order to facilitate reference. The number of definitions has been expanded, using the definitions in the county Ordinance as a base. However, some definitions in the county Ordinance are not needed for a city Ordinance and have not been included. It has also been necessary to add a few definitions not included in the county list. 15 ARTICLE III: ESTABLISHMENT OF ZONING DISTRICTS This article includes a listing of the zoning districts, provides for an official zoning map, and outlines rules for interpreting the zoning map. 1. Section 300. Establishment of Zoning Districts lists the zoning districts established for Martinsburg. This serves the same function as Section 8 of the existing Ordinance. Note that some existing districts have been eliminated and several new districts added. The reasons for the changes are discussed in the commentary for Article V, District Regulations. 2. Section 301. Official Zoning Map provides for adoption of the official zoning map by reference as part of the Ordinance and outlines procedures for making changes in the zoning map and, if necessary, replacing it. The provisions follow generally standard working used in the most modern Zoning Ordinances. The wording is more detailed than the corresponding provisions in the existing Ordinance (see Sections *, 46, and 66 of the existing Ordinance). 3. Section 302. Interpretation of Zoning Maps incorporates the provisions of Section 45 of the existing Ordinance, and adds several additional provisions. ARTICLE IV: GENERAL REGULATIONS This article includes a variety of regulations that generally apply in all districts. 1. Section 400. Application of Regulations is a general statement on the application of the zoning regulations. 2. Section 410. Nonconforming Lots, Structure, and Uses outlines the restrictions on lots, structures, or uses that do not conform to the provisions of the Ordinance. Although a few additions and clarifications were necessary, this is essentially the same material as contained in Sections 36 and 37 of the 1954 Ordinance. The provision for removal on nonconforming uses in residential districts after 25 years in retained. A new provision (410.6) is added which authorizes the Board of Appeals to permit the enlargement or continuance of a nonconforming use or structure as a Special Exception. 3. Section 420. Lot Yard, and Building Requirements outlines area, yard, height, and coverage requirements for all zoning districts in chart form. Lot, yard, height, and court requirements are spelled out in more detail in Sections 421-424. 4. Section 430. Off-Street Parking and Loading. The 1954 Ordinance gave relatively limited attention to parking requirements. Today there is no longer any question of requiring parking spaces and most new developments include parking space as a routine matter. This section outlines design requirements and lists the number of spaces required for different uses. Provisions are included for modifying the requirements in case of hardship or joint use. Businesses in the downtown area (BD) are exempt from parking requirements on an individual basis. 5. Section 440. Signs. The 1954 Ordinance gives relatively little attention to sign regulation, so much of this section is new. New overhanging signs are to be forbidden in the Downtown Business District, and existing overhanging signs are to be removed within five years. 16 ARTICLE V: DISTRICT REGULATIONS Article V includes a description of the purposes and requirements for each zoning district. To provide a background for understanding the proposed new format of the amended district regulations, the characteristics of the zoning districts in the existing Ordinance are reviewed below. Existing Zoning Districts The existing Martinsburg Zoning Ordinance establishes the 15 zoning districts listed in Table 3. Table 3 Zoning Districts in Existing Martinsburg Zoning Ordinances 1. 2. 3. 4. 5. District Residential Districts Residential A Residential AA Residential B Residential BB Residential C Business Districts 6. Shopping Center D 7. Shopping Center DD 8. Service Districts S 9. Business Retail F 10. Business Retail FF Industrial Districts 11. Light Industrial LI 12. General Industrial G 13. General Industrial GG 14. Mineral Industrial MI Rural Districts 15. Rural-Agricultural RA Where Mapped In City X Outside City X X X X X X X X X X X X X X X The reason for the single and double letter zoning districts is not made clear in the text of the existing Ordinance. In fact, with a few minor exceptions, the regulations for the single and double letter districts of the same letter are the same. For example, the requirements of the Residential A and AA Districts are the same. The difference, which can be understood by examining the zoning maps, is that the Residential A District was mapped within the city limits and the Residential AA District was mapped outside the city limits. Some types of districts (the Residential C and the Service District) were mapped only within the city, the Mineral Industrial District is mapped both in and outside of the city, and the Rural-Agricultural District was mapped only outside the city. In reality, therefore, there are nine zoning districts, which have been mapped within the city limits of Martinsburg. The uses permitted in the different zoning districts are outlined in Sections 12-35 of the existing Ordinance, and in addition, some requirements are found in other sections. Major requirements and characteristics of the existing zoning districts are reviewed below. The Residential A District is essentially a single-family district, though two-family dwellings are also permitted as well as customary-related uses such as churches and schools. A 17 planned apartment project is permitted in the Residential A District as a Special Exception (Section 54). A lot width of 50 feet and an area of 5,445 sq. ft. are required for new dwellings (Section 40). The Residential A District was mapped in the newer sections of the city in 1954 and has been extended to newly annexed areas. Though two-family dwellings are permitted, new development has been almost entirely in the form of single-family detached dwellings. The regulations outlined for Residential A Districts also applied to Residential AA Districts. The Residential B District is mapped in the older residential areas of Martinsburg. One-and two-family dwellings and apartment houses are permitted. No density or frontage requirements were established for this district. A number of such uses allowed is greater than in the Residential A District. Requirements for the Residential BB District are the same as for Residential B. The Residential C District permits: 1) Residential A uses, 2) Residential B uses, and 3) Housing projects of the Martinsburg Housing Authority. In effect, this district was established to designate areas for public housing projects. This was based on the concept that public housing was different from other housing. The concept of zoning for public housing is now obsolete. Public housing can take a number of forms under new programs and there is no reason why it should not be located anywhere in the community, as long as the type of housing meets the zoning requirements for that area. The Residential C District is, therefore, eliminated from the amended Ordinance. The Shopping Center District was intended to encourage the development of the planned shopping centers in various sections of the city and surrounding area. Four shopping center districts were outlined but only one, the site of Berkeley Plaza has been developed. The general provisions of this district are retained in the amended Ordinance in the Planned Business District. In addition, site plan review such as was required in the Shopping Center District is extended to all new commercial development. The Service District was intended to provide for limited business activities in certain areas, primarily around the fringe of downtown. It primarily provides a type of “buffer” zone between downtown commercial development and adjoining residential areas. Dwellings may be used for certain business activities, and new buildings may be constructed, provided they do not detract from the general residential quality of the area. Dwellings may be used for certain business activities, and new buildings may be constructed, provided they do not detract from the general residential quality of the area. Certain restrictions on signs, show windows, and display are included. The concept of the Service District is still a valid one and can be useful in the old, relatively built-up residential areas adjacent to downtown Martinsburg, especially in the area west of College Avenue. The Service District, with some modifications is retained in the amended Zoning Ordinance. The Business Retail F District encompasses all the remaining business areas in the city and is the predominant business zoning district. A wide variety of service and retail sues are permitted. Some business uses, such as dry clearing plants, storage yards, lumber yards, and similar potentially incompatible activities are excluded. Requirements for the BRFF District are the same as for the BRF District except that truck terminals are permitted in the BRFF District. There are a number of problems with having essentially only one business district. There is no clear differentiation between business uses that are appropriate at different scales; for 18 example, at the neighborhood scale and at the downtown scale. There is generally no control over placement of different types of businesses that may be incompatible. For example, a retail store and a service garage. Finally, there are generally no design controls. The Light Industrial District provides for a number of “light” industrial activities that are generally not objectionable to surrounding uses. This district was mapped only within the city. The regulations are somewhat old-fashioned in that they permit all business retail uses in the Industrial District. However, dwellings are excluded. The Light Industrial District serves a needed function and is retained, with some modifications, in the amended Ordinance. The General Industrial G District provides for storage and industrial activities, including some not allowed in the Light Industrial District, such as coal yards, ice factories, and oil bulk yards. A number of supposedly obnoxious uses are excluded from this district. The regulations for the General Industrial GG District are the same as for the General Industrial District, except that those uses excluded from the General Industrial District are permitted as a Special Exception upon approval of the Board of Adjustment. The General Industrial District is retained, with some modifications, in the amended Ordinance. The Mineral Industrial District is intended to accommodate quarrying and related manufacturing and processing activities; operations common in the Martinsburg area. Other industrial uses are also permitted in this district. The Mineral Industrial District, with modifications, is retained in the amended Ordinance. The Rural-Agriculture District was mapped outside the city. It permits residential and service uses, agricultural activities, airports, and fairgrounds. Business retail and industrial uses were permitted only by authority of the City Council. A similar district, the RuralResidential District, is included in the amended Ordinance. 19 Zoning Districts in the Amended Ordinance The amended Zoning Ordinance has 20 zoning districts that are grouped into five main categories: Residential, Business, Industrial, Planned Development, and Supplemental. Each of five major groups has a description of the general purpose of the districts in that group, and a separate statement of purpose for each district. Most of the districts in the amended Ordinance correspond to districts in the existing Ordinance, but some changes have been made for the reasons listed below. 1. The confusing system of single- and double-letter districts in the existing Ordinance has been eliminated and a consistent system of district names has bee adopted. When possible, the district names and requirements are similar to those in the county Ordinance. 2. Some requirements have been updated to meet modern development practices. 3. Several new districts have been added, the BRF District has been divided into four business districts, and the Residential C District has been eliminated. The relationship between the districts in the amended, existing, and count Ordinances is show in Table 4. The uses permitted in each district are listed in tabular form in Section 560 Table of Zoning District Uses. Where necessary, additional provisions are outlined of individual districts. Table 4 Relation of Amended Zoning Districts to Existing and County Districts Amended Districts Residential Districts RR Rural Residential RS Suburban Residential RU Urban Residential A RUB Urban Residential B RT Townhouse RL Multiple-Family Low Density RM Multiple-Family Medium Density Business Districts BL Local Business BS Service Business BD Downtown Business BC Community Business BH Highway Business Industrial Districts IL Light Industrial IG General Industrial IE Extractive Industrial Planned Development Districts RP Planned Residential BP Planned Business IP Planned Industrial Existing Districts County Districts RA — RA, AA RB B — — — RR RS RU — RT RMC RMM BRF, BRFF S BRF, BRFF BRF, BRFF — BL — — BC BH LI GI, GGI MI IL IG IE — SCD — RPC BP IP Supplemental Districts HI Highway Interchange — HI HP Historic Preservation — — Note: Amended Districts do not always correspond exactly to existing districts because of some changes of requirements. 20 ARTICLE VI: DESIGN REGULATIONS Article VI outlines additional design requirements for certain uses and structures beyond those requirements outlined in the general regulations. Requirements for Special Exceptions for certain uses are outlined. The article is divided into different sections on the basis of use. The first sections outline requirements for accessory structures and uses, and for temporary structures and uses. The Natural Resource section outlines requirements for agriculture, forestry, and mineral extraction. The section on residential uses is especially important. It includes the requirements for “patio-house” developments, townhouse developments, apartment projects, mobile homes, and cluster subdivisions. Provisions for transient housing cover travel trailer parks, boarding houses and tourist homes. Other major divisions cover business, industrial, public and semi-public, and public utility uses. ARTICLE VII: DEVELOPMENT REVIEW This article outlines procedures and requirements for Site Plan Review and for review of Special Exceptions. Site Plan Review Most older Zoning Ordinances were geared to a small scale, a lot by lot pattern of development. The Ordinance would establish certain minimum standards for the placement of buildings on a lot. Although there were some problems, this type of regulation was generally satisfactory for small scale development. Today, development is often undertaken on a much larger scale, involving larger acreages, numerous buildings, new streets within the development, and large parking areas. The future city is therefore being created in much larger increments than in the past. Under these circumstances, the old method of minimum standards alone is no longer satisfactory. Increasingly, local governments are giving their Planning Commissions the authority to review the site plans of intensive development before issuance of a Building Permit. This would include commercial and industrial development and large scale residential projects, such as apartments or townhouses. Special Exceptions Special Exceptions are defined as uses that would not be appropriate generally or without restriction throughout a zoning district, but that can be allowed if controlled with respect to number, area, location and relocation to surrounding uses. Section 702 of the amended Ordinance makes clear the purpose of a Special Exception and outlines general requirements for granting a Special Exception. Uses that are permitted as a Special Exception are identified in the Table of Zoning District Uses in Section 560. More specific requirements for Special Exceptions for different uses are outlined in Article VI. 21 ARTICLE VIII: ADMINISTRATION AND ENFORCEMENT The provisions of this article are intended to clarify and elaborate, where necessary, the administrative procedures outlined in Sections 47, 59, 63, and 64 of the existing Ordinance. This section is generally similar to the proposed county Ordinance, with some exceptions. Note the following points. 1. The difference between a Building Permit (for physical construction) and a Use and Occupancy Permit (for a charge of use only) is made clear. 2. The term Building Permit is used instead of the Zoning Improvement Permit that was used in the county Ordinance. 3. Some processing procedures in the existing Ordinance, not included in the county Ordinance, are incorporated in Section 801.4 of the amended Ordinance. ARTICLE IX: BOARD OF ZONING APPEALS The provisions of this article incorporate and add to the provisions for organization and operation of the Board of Zoning Appeals outlined in Sections 48, 49, 49A, 50, 52, 53, and 57. We have incorporated the wording used in the county Ordinance. Much of the new language incorporates material outlined in the present state enabling legislation. These changes and additions make this article compatible with present state legislation. The procedures of the Board outlined in the existing Ordinance are essentially incorporated in the new Ordinance. The revised and expanded wording clarifies the duties and procedures of the Board of Zoning Appeals. Note the following points. 1. The term Board of Adjustment used in the existing Ordinance is changed to Board of Appeals to conform to the present wording of the state-enabling legislation. 2. Provisions requiring inspection of properties under review by the Board are incorporated in Section 903.2. These provisions are in the existing Ordinance but not in the county Ordinance. 3. A provision for a recommendation from the Planning Commission on Special Exceptions is incorporated in the new Ordinance. 4. General and specific conditions for granting Special Exceptions are outlined in Articles VI and VII. ARTICLE X: ADMINISTRATION OF THE HISTORIC PRESERVATION DISTRICT The Historic Preservation District is one of the supplemental or “overlap” districts outlined in Article V, and is intended to provide additional measures to aid in preserving historic sections of the city. The requirements in a historic district are necessarily somewhat detailed so it was decided to outline them in a separate article. Historic preservation districts have been established in many cities across the country. The provisions of this article are modeled after procedures used in other cities. 22 The procedure provides for a Historic Preservation Study Committee to review the proposed historic area and make recommendations to the Planning Commission and the City Council. Following tentative approval by the Council, the Committee applies for establishment of a historic district. If established, the Council appoints a permanent Historic Preservation District Commission to administer the district. All plans for construction, alteration, repair, moving or demolition of structures in the historic district are to be reviewed by the Commission, in order to ensure compatibility with the character of the area. In Martinsburg, a historic district would most likely be established for the Water Street area, as recommended in the Comprehensive Plan, and possibly for other old areas of the city. ARTICLE XI: AMENDMENTS This article incorporates and amplifies the procedures for amending the Zoning Ordinance outlined in Section 60 of the existing Ordinance. The amended text generally corresponds to the text used in the county Ordinance, with some exceptions. Note the following. 1. The amended text makes clear the difference between a text and a map amendment. Application procedures and the procedure for posting the property are clarified. 2. The provisions in the existing Ordinance covering the content of the Planning Commission Report to the Council is retained. This is not included in the county Ordinance. 3. The provisions in the existing Ordinance for the Council to consider the declaration of policy and other matters is retained. This is not included in the county Ordinance. 4. The provision in the existing Ordinance for a three-fourths vote of Council when twenty (20) percent or more of surrounding property owners protest a map amendment is retained. This is not included in the county Ordinance. ARTICLE XII: ORDINANCE PROVISIONS This article includes those general legal provisions included in all Zoning Ordinances, and incorporates the provisions of Sections 65, 67, of the existing Ordinance. The wording is generally the same as used in the county Ordinance. Note the following. 1. The existing Ordinance provided that the Ordinance become effective when approved by the voters, and that was done in 1954. Under existing state legislation, amendment of the Zoning Ordinance is by action of the City Council, after a public hearing. Section 1102, therefore, leaves a blank for the effective date, to be filled in after the final adoption by the City Council. 2. The wording of the severability clause in the existing Ordinance is retained. 23 III. RECOMMENDED ZONING MAP AMENDMENTS The zoning map is part of the Zoning Ordinances and is used to indicate the boundaries of the different zoning districts. The zoning map is normally amended from time-to-time as requests for rezoning of properties or areas are approved. An overall review of the zoning map made as part of this study indicates the need for a number of changes. THE 1954 ZONING MAP AND SUBSEQUENT REVISIONS The City’s existing zoning map was adopted in 1954, and covered the city as it existed at that time and an area extending approximately two miles from the city limits. The zoning map consists of two sheets, one showing the zoning districts within the city (scale 1”=400’) and the other one showing the zoning districts outside the city (scale 1”=800’). As indicated previously, single-letter districts were generally mapped within the city and double-letter districts were mapped outside the city. Since adoption of the zoning map in 1954, there have been 54 requests for the map amendments. 2 Of this total, 40 were inside the city limits (as the city limits existed at the time of the request) and 14 were for changes in areas outside the city. Of the 40 rezoning requests inside the city, 24 were approved by the Council and, outside the city, nine have been granted. A total of 54 rezoning requests in fifteen (15) years, an average of less than four (4) per year, is relatively low and seems to indicate that the original boundaries were drawn carefully enough to provide for most development needs. At the same time, the relatively low rate of urban development has reduced pressure for zoning changes. Most zoning map amendments have been for small extensions of commercial areas in the older areas of the city. A number of applications for apartment zoning in the newer western neighborhoods have been denied. RECOMMENDED ZONING MAP AMENDMENTS Review of the zoning map and the current planning studies indicates that a number of changes are needed. Reasons are described below. Update the Zoning Base Map: The zoning map was prepared in 1954 and has not be updated. Many new features, such as Interstate 81 and new subdivisions have been built in that time. Zoning districts should be shown on an accurate current map, even if no other changes were necessary. Update the Zoning Districts: Development has proceeded differently than anticipated in 1954 in some instances. For example, the 1954 map indicated shopping center districts on Tennessee Avenue and State Circle, but the regulations permitted residential development if shopping centers were not built. Houses were built in those areas, so the meaningless but still existing shopping center districts should be removed from the map. Changed Conditions and New Planning Recommendations: Many changes have occurred in the area since 1954, which combine to change, in some instances, the development pattern outlined at that time. The construction of Interstate 81 is a prime 2 Through June, 1969. 24 example The Martinsburg and Berkeley County Comprehensive Plans have outlined new future development patterns and the zoning map should be revised to conform to these patterns. Of course, the zoning map will not conform exactly to the future land use plan, because zoning is short-range while the land use plan indicates development patters that may not be appropriate until some future date. Some changes will be needed simply to indicate the revised district name. For example, areas now zoned RA will be shown as RUA on the new zoning map. With some exceptions, the areas within the City’s zoning jurisdiction outside the city limits are indicated in the zoning districts indicated on the proposed county zoning maps. When county zoning is adopted, the county will have jurisdiction of zoning outside the city limits. The recommended zoning districts are indicated on the accompany map; However the reader is cautioned that it is not possible to indicate exact boundaries on a small, reportsized map. The official zoning map at City Hall should be consulted for exact information. AMENDMENT OF THE ZONING MAP After review of the zoning text and map, the Martinsburg Planning Commission will hold a public hearing. After the hearing, any necessary revisions will be made to the text and maps, and they will be forwarded to the City Council. The Council will then adopt the amended text and map. The City should prepare a detailed list of the amendments to the zoning map. 25 ARTICLE I GENERAL PROVISIONS 26 ARTICLE I: GENERAL PROVISIONS SECTION 100. TITLE These regulations shall be known and may be cited as the “Martinsburg Zoning Ordinance.” The Zoning Ordinance includes both the text of the regulations and the zoning map. SECTION 101. LEGISLATIVE AUTHORITY These zoning regulations are established in accordance with the provisions of Sections 39 through 71 of Article 24, Chapter 8 of the West Virginia Code. SECTION 102. DECLARATION OF FACTS The City of Martinsburg was laid out in October 1778, with an area of one hundred and thirty acres. The early plat of the city was according to a survey and plan. Streets were delineated and the land was subdivided into two hundred sixty-nine lots. This was the first city planning for Martinsburg as the term is used today. The first zoning or its equivalent of that period was a directive, recorded in the land records of Berkeley County, requiring that each purchaser of a lot “is to build a good dwelling house to be at least twenty feet long and sixteen feet wide with stone or brick chimney to same, in two years from the time of purchase, and on failure, the lot to return to the proprietor.” Here were regulations requiring: 1. A dwelling house of minimum size. 2. Construction to prevent a fire hazard. 3. A penalty for failure to comply with the regulations. Thus, the earliest regulations were not unlike, in character, those set forth in this Ordinance in more detail and intended for the same purposes, namely the promotion of health and safety. SECTION 103. STATEMENT OF LEGISLATIVE INTENT These zoning regulations are adopted by the City Council of Martinsburg, West Virginia, for the following purposes: 103.1 To protect the public health, safety, and general welfare of the residents of Martinsburg; 103.2 To help guide the future growth and development of Martinsburg in accordance with a comprehensive plan of land use and population density that provides for beneficial and convenient relationships among the residential, commercial, industrial, and pubic areas within the city; 27 103.3 To provide adequate light, air, and privacy for future development; to secure safety from fire and other dangers, and to prevent overcrowding of the land and undue concentration of the population; 103.4 To maintain and protect residential, commercial, and industrial areas from encroachment of incompatible uses; 103.5 To prove for the reservation of sufficient sites for future industrial development; 103.6 To provide a guide for public action in the orderly and efficient provision of public facilities and services and for private enterprise in building development, investment, and other economic activity; 103.7 To preserve and protect buildings, sites, monuments, structures and areas of historic interest. In addition to these general purposes, more specific statements of purpose are outlined for each district. SECTION 104. JURISDICTION The provisions of these regulations shall apply to all lands within the City of Martinsburg, and the area outside the city that is outlined on the zoning map that was adopted in 1954. 28 ARTICLE II DEFINITIONS 29 ARTICLE II: DEFINITIONS SECTION 200. DEFINITIONS OF TERMS The word person includes a firm, association, organization, partnership, trust, company, or corporation as well as an individual. The present tense includes the future tense, the singular number includes the plural, and the plural number includes the singular. The word shall is mandatory, the word may is permissive. The words used or occupied include the words intended, designed, or arranged to be used or occupied. The word lot includes the words plot or parcel. Words or terms not specifically defined below shall have the definition provided in a standard dictionary. Accessory Use or Structure: A use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure. Addition: Any construction that increases the size of a building or adds to the building. Agricultural Use: Any use that involves the tilling of soil, the growing of crops or plant growth of any kind, or the raising of livestock or poultry for profit. “For Profit” means in excess of what a family would normally grow or raise for its own use or consumption, and shall include the processing and retail sale, in a farm produce stand, or otherwise on the premises, of the products produced on the farm. 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: Construction which may change the structural parts, mechanical equipment or location of openings of a building but which does not increase the size of the building. Animal Hospital: A building used for the treatment, housing or boarding of domestic animals by a veterinarian. Apartment Conversion: Creation of two or more living units from a single-family living unit. Apartment House: See Dwelling, Multiple-Family. Area, Building: The horizontal projected area of a building and its accessory buildings, excluding roof overhangs and uncovered steps and porches. All horizontal measurements shall be made between exterior faces of walls. Area, Floor: The sum of the gross areas of the several floors of a building measured from the exterior faces of walls. Floor area does not include cell space used for storage, heating, and other miscellaneous equipment, or attic space with less than eight feet headroom. Area, Land: Land area refers to net land area, exclusive of streets and other public space. 30 Attic: Accessible space between top of uppermost ceiling and underside of roof. Inaccessible spaces are considered structural cavities. Attic Room: (Finished Attic): Attic space that is finished as living accommodations but that does not qualify as a half-story. Auto Body Shop: Any structure or any building or part thereof, that is used in the repair or painting of bodies and fenders of motor vehicles. Automobile Parking Lot or Garage, Commercial: A lot or building or portion thereof, other than an automobile sales lot, held out or used for the storage or parking of six or more motor vehicles for a consideration, where service or repair facilities are not permitted. Such parking lot or garage service or repair facilities are not permitted. Such parking lot or garage shall not be considered an accessory use; or shall it be used for the storage of dismantled or wrecked motor vehicles, parts thereof, or junk. Automobile Repair and Service Garage: A building in which the business of general motor vehicle repair and service is conducted, but excluding junk and/or auto wrecking business. See also Automobile Service Station and Salvage. Automobile Sales Lot: A lot arranged, designed, or used for the sale of any motor vehicle, eligible for an inspection sticker, or any type of trailer provided the trailer is unoccupied, and where no repair work is done except minor incidental repair of automobiles or trailers displayed and sold on the premises. An automobile sales lot shall not be used for the storage of dismantled or wrecked motor vehicles. Automobile Service Station: A building, lot, or both, where gasoline, oil, grease, batteries, tires, and automobile accessories may be supplied and dispensed at retail, and where automobile servicing and minor repairs are provided. Uses at a service station do not include major mechanical and body work, storage of automobiles not in operating condition, or other work involving noise, glare, fumes, smoke or other characteristics to an extent greater than normally found in such stations. A service station is not a repair and service garage or a body shop. Balcony: An unroofed platform, enclosed by a railing or parapet, projecting from the wall of a building for the private use of tenants or for exterior access to the above grade living units. When a balcony is roofed and enclosed with operating windows, it is considered part of the room it serves. Basement: A story of a building or structure having one-half or more of its clear height below grade. Bed and Breakfast: See Tourist Home. Board: The Martinsburg Board of Zoning Appeals. Boardinghouse: A residence in which, for compensation, lodging or meals, or both, are furnished to not more than eight (8) guests who board or stay for a period of at least twenty (20) days. A boardinghouse shall not be deemed a home occupation. 31 Buildable Area: The portion of a lot remaining after required yards have been provided. Building: Any structure that is permanently affixed to the lands; and has one or more floors and a roof; and is bounded by either open area or the lot lines of a zoning lot. For regulatory purposes, the term “Building” shall not include mobile homes, tents, or other portable housing that may be attached to a foundation, but this exception shall not exclude factory constructed buildings that are transported to a site and erected on a permanent foundation. Building, Height of: 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 feet or more, the building height is measured from the average elevation of finished ground surface along the front of the building. Building Line: A line drawn parallel to a lot line at a distance there from equal to the depth of a required yard. Carport: A roofed space having at least one side open to the weather, primarily designed or used for motor vehicles. This term is usually related to one- and two-family dwellings. In multi-family properties, a garage may have one or more sides open to the weather. Church: A building used for public worship excluding separate buildings used for residential, educational, burial, recreational or other uses. Common Open Space: A parcel or parcels of land or an area of water, or a combination of land and water within a development site and designed and intended for the use or enjoyment of residents of a planned residential development, not including streets, off-street parking areas, and areas set aside for public facilities. Court: An open, uncovered space enclosed on two or more sides by exterior walls of buildings on the same lot. Density: The average number of persons, families, or dwellings per unit of area (acre, square mile, etc). Net residential density: Density of the building site. Gross residential density: Density of the building site plus traversing streets, alleys, and drives, open space and one-half of bounding streets. Disabled: Disabled means “handicapped”, with respect to a person who has a physical or mental impairment which substantially limits one or more of such person’s major life activities, has a record of having such an impairment, or being regarded as having such an impairment, but such term does not include current, illegal use of or, an addiction to 32 a controlled substance, as defined in Section 102 of the Controlled Substance Act, 21 U.S.C. 802. District: A portion of the municipal area within which certain uniform regulations and requirements or various combinations thereof apply under the provisions of this Ordinance. Driveway: A vehicular way of ingress, egress, and circulation within a property. Dwelling: A building containing one or more dwelling units. The term “dwelling” or any combination thereof shall not be deemed to include hotel, rooming house, motel, clubhouse, hospital or other accommodations used for more or less transient occupancy. Dwelling, Detached: A building containing only dwelling units surrounded by yards or other open area on the same zoning lot. Dwelling, Group: A building group consisting only of dwellings occupying a parcel of land in one ownership and having any yard or service area in common. Dwelling, Multiple-Family: A building containing three or more dwelling units. (An apartment house.) Dwelling, Semi-detached: One of two buildings arranged or designed as dwelling, located on abutting lots and separated from each other by a solid partition—without openings—extending from the cellar floor to the highest point of the roof along the dividing lot line, and separated from any other building or structures by space on all sides. Dwelling, Single-Family: A building that may contain more than one dwelling unit and is not occupied by more than one family unit. Dwelling, Townhouse: One of a series of three or more attached dwelling units separated from one another by continuous vertical solid partitions without openings from basement floor through the roof. Dwelling, Two-Family: A building located on one zoning lot containing not more than two dwelling units, arranged one above the other or side by side, and not occupied by more than two families. Dwelling Unit/Living Unit: One or more rooms in a residential building or in a mixed building, which are arranged, designed, used or intended for use by no more than four (4) unrelated persons living together and maintaining a common household, and which include lawful cooking space and lawful sanitary facilities reserved for the occupants thereof. Easement: A vested or acquired right of use, interest or privilege (other than ownership) in lands owned by another, such as an easement of light, of building support, or of right-of-way. 33 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. Essential Services: The erection, construction, alteration or maintenance by public utilities or by municipal or other governmental agencies, of underground or overhead electrical, gas, communication, steam, water or sewer transmission, distribution, collection, supply or disposal lines, including poles, cross arms, guy wires, towers, repeaters, boosters, switches, transformers, regulators, pumps, mains, drains, sewers, pipes, conduits, wires, cables, fire alarm boxes, police call boxes, traffic signals, hydrants and other similar accessories and equipment used in connection with and constituting integral parts of such lines and reasonably necessary for the furnishing of adequate service by such public utilities or municipal or other governmental agencies or for protection of public health, safety or general welfare, but not including buildings, yards or stations used for storage, repair or processing of equipment or material and not including buildings, yards or repair or processing equipment or material and not including buildings, yards or stations or substations for transforming, boosting, switching or pumping purposes when such facilities are constructed on the ground. Exit: A way of departure from a building to the exterior at street or grade level, including doorways, corridors, stairways, ramps and other elements necessary for egress or escape. Explosives: For the purpose of this Ordinance, an explosive shall be defined as any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion. Extractive operations: The extracting or mining of sand, sand rock, gravel, limestone, soapstone, or building stone, or other mineral or soils. FAIR HOUSING ACT: Federal legislation found in 42 U.S.C. 3601 et seq. which 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: (a) race or color (b) religion (c) sex (d) national origin (e) familial status (f) disability 34 FAMILY: is defined as (a) One of the following: (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. (b) 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. (c) In determining whether individuals are living together as the functional equivalent of a traditional family, the following criteria must be present: (1) The group is one (1) which in theory, size, appearance, structure and function resembles a traditional family unit; (2) 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; (3) The group shares expenses for food, rent or ownership costs, utilities and other household expenses; (4) The group is permanent and stable. Evidence of such permanency and stability may include: a. The presence of minor dependent children regularly residing in the household who are enrolled in local schools; b. Members of the household have the same address for purposes of voter's registration, driver's license, motor vehicle registration and filing of taxes; c. Members of the household are employed in the area; d. The household has been living together as a unit for a year or more whether in the current dwelling unit or other dwelling units; e. There is common ownership of furniture and appliances among the members of the household; and f. The group is not transient or temporary in nature. (5) Any other factor reasonably related to whether or not the group is the functional equivalent of a family. Flood Plain: (1) A relatively flat or low land area adjoining a river, stream, or water course which is subject to partial or complete inundation; (2) An area subject to unusual accumulation or runoff of surface waters from any source. Flood Plain, Fifty (50) Year: That area which would be inundated by storm water runoff equivalent to that which would occur with a rainfall of fifty (50) year frequency after total development of the watershed. Flood Plain, Hundred (100 Year): That area which would be inundated by storm water runoff equivalent to that which would occur with a rainfall of one hundred (100) year frequency after total development of the watershed. 35 Flood Proofing: Any combination of structural and nonstructural additions, changes or adjustments to properties and structures that reduce or eliminate flood damage to lands, water and sanitary facilities, structures, and contents of buildings. Floor Area: See Area, Floor. Floor Area Ratio (FAR): For the purpose of site planning, the FAR is the total floor area (all stories) divided by the total land area. Frontage: The length of the front lot line of a zoning lot abutting a public street, road, or highway, or rural right-of-way. Garage, Private: A garage intended for and used for the storage of the private motor vehicles of the family’s residence upon the premises. Garage, Public: A space or structure, other than a private garage, for the storage, sale, hire, care, repair or refinishing of motor vehicles or trailers. Grade: a. Finish: The top surface elevation of lawns, drives, or other improved surfaces after completion of construction or grading operations. b. Natural: The elevation of the original or undisturbed natural surface of the ground. c. Subgrade: The elevation established to receive top surfacing or finishing materials. Gradient: The slope, or rate or increase or decrease in elevation of a surface, road or pipe, expressed in inches or site or fall per horizontal linear foot or in percent. GROUP HOME: A dwelling operated under State Regulations that provides lodging and meals for more than four (4) but less than eight (8) unrelated individuals, who as a result of age, illness or handicap, require personalized services or a supervised living arrangement, in order to assure their safety and comfort. One or more staff person may reside on the premises and will not be considered in the total number of occupants. Habitable Room: A room designed and used for living, sleeping, eating or cooking. Bathrooms, toilet compartments, closets, halls, storage or utility spaces and similar areas are not considered habitable rooms. Home Association: An incorporated, nonprofit organization operating land agreements through which: 1) each lot and/or homeowner in a other described land area is automatically a member and b) each lot subject to a charge for a proportionate share of the expenses Association’s activities, such as common property maintenance. under recorded planned unit or is automatically for the Home Home Occupation: Any use customarily conducted entirely within a dwelling by the inhabitant, which is clearly incidental and secondary to the residential use of the building and does not change the character thereof or have any exterior evidence other than a 36 sign, as provided for in these regulations, and, in connection with which no stock in trace or commodity sold is kept on the premises. In connection with a home occupation, it shall not be permitted to produce offensive noise, vibration, smoke, dust or other particulate matter, odorous matter, heat, humidity, glare, concentrations of persons or vehicles, or other objectionable effects. Home occupations include: a. Fine arts studio b. Professional offices for doctors, dentists, lawyers, musicians, professional engineers or land surveyors, architects or city planners, clergymen, writers, each with not more than one assistant c. Teaching of not more than four pupils simultaneously, or in the case of musical instruction of not more than a single pupil at a time d. Seamstresses e. Real estate or insurance agents f. Home barber and beauty parlors, not to exceed two chairs, where service is by appointment only g. Childcare of not more than six (6) children simultaneously Home occupations shall not include: a. Antique shops b. Boarding or rooming houses or tourist homes c. Commercial repair or storage of automobiles or watercraft, storage of wrecked, dismantled, or nonoperating motor vehicles, or storage of other salvage materials d. Commercial stables, kennels, and nurseries e. Mortuary establishments f. Restaurants or tea rooms In cases not covered above, the Building Inspector shall determine if the proposed use is permitted as a home occupation. Hospital, Class A: A hospital that does not primarily treat communicable diseases, insane or feeble-minded patients, drug addicts, or alcoholic patients and is not a penal farm or correction institution. Hospital, Class B: A hospital that does not primarily treat the types of cases noted in Class A above, and that may be a penal or correctional institution. 37 Hotel: A building used as the more or less temporary abiding place of ten (10) or more individuals who are, for compensation, lodged with or without meals and in which no provision is made for cooking in any individual room or suite. A hotel may include restaurants, newsstands, and other accessory services primarily for serving its occupants and only incidentally the public. Illegal Use: Any use, whether of a building or other structure or of a tract of land, in which a violation of any provision of this Ordinance has been committed or shall exist, except that of a Special Exception. Industrial Park: A tract of land eminently suitable for industrial use subdivided and developed according to a comprehensive plan for occupancy by a group of industries, equipped with streets and necessary utilities, and conforming in all respects with the requirements of this Ordinance. Institution: Any building or open area used only by an educational, religious, medical, charitable, philanthropic, or other essentially nonprofit organization, either public or private. Uses include, but are not limited to, Group Homes, Transitional Housing, Rescue Missions and Emergency Shelters (see definitions). Junk Yard: Any area where waste, discarded or salvaged materials are brought, sold, exchanged, baled, parked, stored, disassembled or handled, including auto wrecking yards, house wrecking yards, used lumber yards and places or yards for storage or salvaged house wrecking and structural steel materials and equipment, but not including areas where such uses are conducted entirely within a completely enclosed building and not including pawnshops and establishments for the sale, purchase or storage of used furniture and household equipment, used cars in operable condition, salvaged machinery and the processing of used, discarded or salvaged materials as part of manufacturing operations. Kennel: Any building or structure and/or land used, designed or arranged for housing, boarding, breeding or care of more than two adult dogs 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. Laundromat: A service establishment for the onsite rental use of washing and/or drying machines, exclusive of facilities provided as an accessory use in an appropriate house. Living Unit: See Dwelling Unit. Lodging House: A building where, for compensation, sleeping rooms and lawful sanitary facilities are provided for at least three (3) but not more than eight (8) persons, and in which no table board or meal is furnished, and no access to cooking facilities is provided to occupants. Lot: For zoning purposes, as covered by this Ordinance, a lot is 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: 38 a. A single lot of record, b. A portion of a lot recorded, and c. 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 form 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 Frontage: The front of a lot shall be construed to be the portion nearest the street. For the purpose of determining yard requirements of corner lots and through lots, all sides of a lot adjacent to streets shall be considered frontage; and yards shall be provided as indicated under Yards in this section. Lot Measurements: a. Depth is the average horizontal distance between the front lot line and the rear lot line. b. Width shall mean the horizontal distance between side lots lines measure at the midpoint of the side lot lines. Lot Types: The diagram the follows illustrates terminology used in this Ordinance with reference to corner lots, interior lots, reversed frontage lots, and through lots: 39 In the diagram above, A=Corner Lot, defined as 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 135 degrees. See lots marked A(1) in diagram. B=Interior Lot, defined as a lot other than a corner lot with only one frontage on a street other than an alley. C=Through Lot, defined as 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. D=Reversed Frontage Lot, defined as 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 A-D and B-D in the diagram). 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. Lot Line, Front: 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.” Mobile Home: A detached structure characterized by all or most of the following: a. It is designed for long-term occupancy, and contains sleeping accommodations, a flush toilet, a tub or shower bath, and kitchen facilities with plumbing and electrical connections provided for attachment to outside systems, and 40 b. It is designed for transportation after fabrication on streets or highways on its own wheels or on flatbeds or other trailers or detachable wheels, and c. It arrives at the site where it is to be occupied complete and ready for occupancy except for minor and incidental unpacking and assembly “operations, location on jacks or other temporary or permanent” foundations, connections to utilities, and the like. Note: a travel trailer is not a mobile home. See Travel Trailer. A mobile home is not a modular unit. See Modular Unit. Mobile Home Park: A lot or tract of land meeting the requirements of this Ordinance and used or intended to accommodate mobile homes for residential purposes. Modular Unit: A factory-fabricated transportable building unit designed to be used by itself or to be incorporated with similar units at a building site into a modular structure for residential, commercial, educational or industrial uses. Motel: An establishment for transients consisting of any number of sleeping rooms without cooking facilities, arranged in groups of four or more under a common roof, each room or suite of rooms having complete sanitary facilities, an outside entrance and conveniently located parking space on the premises. Multiple-Family Dwelling: See Dwelling, Multiple-Family. Neighborhood Shop: A building, lot or premises performing a local neighborhood service to include such uses as drug store, grocery store, barber shop, beauty parlor, and tea room. Nonconforming: Any lawful use, whether of a building or other structure or of a tract of land, which does not conform to the applicable use regulations of the district in which it is located, either on the effective date of this Ordinance or as a result of any subsequent amendment thereto. A nonconforming use shall result from failure to conform to the applicable district regulations on either permitted uses or performance standards. However, no existing use shall be deemed nonconforming solely because of any of the following: a. The existence of less than the required accessory off-street parking spaces or loading berths, or b. The existence of nonconforming accessory signs. Nursing Home: A proprietary facility, licensed by a governmental authority, for the accommodation of persons who require skilled nursing care and related medical services but are not in need of hospital care. A housing for the elderly project is distinguished from a nursing home in that an elderly project is primarily of a residential character with only incidental nursing facilities while a nursing home is primarily designed and used for the care of convalescent or ill persons. 41 One Hundred Year Flood: A flood that has one (1) change in one hundred (100) or a one (1) percent chance of being equaled or exceeded in any given year. One Hundred Year Flood Elevation: The elevation as shown on the profiles contained in the City’s Flood Insurance Study. Where elevations are not provided in the Flood Insurance Study, then the applicant for the proposed development shall determine this elevation in accordance with hydrologic and hydraulic engineering techniques. Parking Area: An off-street space available for the parking of one motor vehicle on a transient basis having a minimum width of nine (9) feet, and a length of eighteen (18) feet, and an area of not less than 162 square feet, exclusive of passageways and driveways appurtenant thereto and giving access thereto, and having direct usable access to the street. Parking Lot, Commercial: A permanently surfaced area of one or more parking spaces designed or used for the parking of self-propelled vehicles and available to the public, whether for a fee or as an accommodation to clients or customers. Penthouse: A structure located on the roof of the main building for purposes of living accommodations or mechanical equipment. When the area of the penthouse exceeds twenty (20) percent of the area of the roof or when the penthouse is to be occupied by persons, the penthouse shall be considered as another story. Philanthropic Institution: A private nonprofit organization that is not organized or operated for the purpose of carrying on a trade or business, no part of the net earnings of which inures to the benefit of any member of said organization or individual. Plat: A map, plan or layout showing the subdivision of land and indicating the location and boundaries of individual properties. Planning Commission: The Martinsburg Planning Commission. 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. Private Club, Social: A private social club includes lodges and similar private groups with bona fide limited membership. Private Club, Commercial: A private club established to conform with the West Virginia Alcoholic Beverage Law, operating primarily for the sale of alcoholic beverages, with membership open to the public for a nominal fee. Private Recreational Facilities: A facility such as a swimming pool, tennis court, beach, boat dock, or basketball court that is an accessory use located on a single-family or two-family residential zoning lot, the use of which is restricted to the occupants of the principal use and guests for whom no admission or membership fees are charged. Private Road: A legally established right-of-way, other than a street, which provides the primary vehicular access to a lot. 42 Property: A lot or plot, including all buildings and improvements thereon. Property Line: A recorded boundary of a plot. Public-owned Land: Existing lots, tracts or parcels or land owned by local, state, and/or federal agencies. Public System: A water supply or waste disposal system that is owned and operated by a local government authority or by a local utility company adequately controlled by a governmental authority. Ramp: A sloping walkway providing access to and from floors at different elevations. Rear Yard, Least Depth: The shortest distance, measure horizontally, between any part of a building other than such parts as excepted, and the rear lot lines. Recreation Areas: Areas for playgrounds, playfields, court games and/or swimming pools, but excluding social or fraternal clubs or clubhouses. Recovery Home: See Group Home. Recycling Facility: A facility through which significant portions of solid waste are recovered for reuse including but not limited to fuel for energy recovery, materials, such as glass, metal (or items of similar nature) for new product manufacturing and organic material for addition to the soil. Rehabilitation: The restoration of one or more properties to a satisfactory improved physical condition overcoming existing deterioration and aiding in the improvement of its neighborhood. Rehabilitation may include additional new construction, building or additions. Restoration: The process of accurately recovering the form of details of a property as it appeared at a particular period of time by means of removal of later work and the replacement of missing original work. Salvage: Old or scrap copper, brass, rope, rags, batteries, paper, rubber, trash, waste, junked, dismantled, or wrecked machinery, machines or motor vehicles, or any parts of junked, dismantled or wrecked machinery, machines or motor vehicles, iron, steel and other ferrous or nonferrous materials. Sanatorium or Sanitarium: An institution for the treatment and care of the chronically ill or for patients requiring long-term therapy, rest, and recuperation. Sanitary Fill: Any premises used primarily for the disposal of garbage, or any refuse, by dumping, reduction, incineration or burial. Screen Planting: A vegetative material of sufficient height and density to conceal from the view, in adjoining districts, the structures and uses on the premises upon which the screen planting is located. 43 Self-Storage: A Self-Storage business provides rooms, lockers, containers, and/or outdoor space in which tenants can store and access their goods. The term “selfstorage” is short for “self-service storage” and is also known as “mini storage.” Unlike in a warehouse, self-storage facility employees do not have casual access to the contents of the space. Setback Lines: The minimum building lines along the boundaries of a lot as determined by the yard requirements of this Ordinance. Side Yard, Least Width: The shortest distance, measured horizontally between any part of a building, other than such parts excepted and the nearest side lot line. Sign: See Section 440.4 Sign, Business: An accessory sign directing attention to a business, commodity, service, or other activity conducted on the premises upon which the sign is located. Sign, Outdoor Advertising: Sign, including billboard, that directs attention to a business, commodity, service, entertainment, or other activity, conducted, sold, or offered elsewhere than on the premises upon which the sign is located. Special Exception: A use that would not be appropriate generally or without restriction throughout the district, but which, if controlled as to number, area, location, or relation to the neighborhood, would be compatible with the public welfare. Such uses may be permitted in such district as Special Exceptions, if specific provision for such Special Exceptions is made in this Zoning Ordinance. See Article VI and VII. Story: That portion of a building, included between the surface of any floor and the surface of the floor next above it, or if there be no floor above it, then the space between the floor and the ceiling above it. a. First Story (First Floor): The lowermost story that is primarily above exterior grade on one or more sides, containing at least fifty (50) percent living accommodations or related nonresidential uses. Stories below grade used for storage, parking, mechanical equipment or other services are considered basement stories. Related nonresidential uses include laundry space, recreation or hobby rooms, commercial use and related corridor space. b. Half Story: A story finished as living accommodations located wholly or partly within the roof frame and having a floor area at least half as large as the story below. Space with less than five (5) feet clear headroom shall not be considered as floor area. c. Top Story: The story between the uppermost floor and the ceiling or roof above. 44 Street: A public or dedicated way thirty (30) feet or more in width, an approved private right-of-way or easement, or a proposed right-of-way widening or extension of an existing street or public way shown on any plan approved by the Planning Commission. 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). If, on the master 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 master plan shall be the street line. Structural Alteration: Any change in the structural members of a building such as walls, columns, beams, or girders. Structure: A combination of material to form a construction that is safe and stable, including among others, buildings, stadiums, reviewing stands, platforms, stagings, sheds, coal bins, shelters, fences, and display signs; the term structure shall be construed as if followed by the words “or part thereof.” Subdivision: The division of a parcel of land into two or more lots or parcels for the purpose of transfer of ownership or building development, or if a new street is involved, any division of a parcel of land. The term includes resubdivision and, when appropriate to the context, shall relate to the process of subdividing or to the land subdivided. Subdivision Cluster: A subdivision in which the minimum lot size required by this Ordinance is reduced, subject to site plan review by the Planning Commission. The gross density of the entire development remains approximately the same as for a conventional subdivision in the same zoning district. The additional land gained by reduction of individual lots is consolidated into common open space areas. Substantial Improvement: Any repair, reconstructions, or improvement to a building of which the cost equals or exceeds fifty (50) percent of the market value of the building either: a. Before the improvement or repair started, or b. If the building has been damaged, and is being restored, before the damage occurred. For the purpose of this definition, “Substantial Improvement” is considered to occur when the first alteration of any wall, ceiling, floor, or other structural part of the building commences, whether or not that alteration affects the external dimensions of the building. The term does not, however, include: a. Any project for improvement of a building to comply with existing state or .local health, sanitary, or safety code specifications which are solely necessary to ensure safe living conditions, or b. Any alteration of a building listed on the National Register of Historic Places, or a State Inventory of Historic Places. 45 Swimming Pool, Commercial: A swimming pool and/or wading pool, including buildings necessary and incidental thereto, operated for profit or as an accessory to a commercial use. Swimming Pool, Community: A swimming pool and/or wading pool, including buildings necessary and incidental thereto, owned and operated by the members of a club, cooperative or association, whether incorporated or unincorporated, providing that it is not organized for profit and the right to use said pool is restricted to the families of members and their guests. A pool as an accessory use in connection with any multiple dwelling(s) established in compliance with the requirements of this Ordinance and maintained for the sole use of tenants and their guests, shall be deemed to be a community pool under these regulations. Temporary Use: Any use which has been authorized under the provisions of the Ordinance that is limited as to the time in which such use shall legally continue. Theatre: A building or part of a building devoted to the showing of moving pictures or theatrical productions on a commercial basis. Theatre, Outdoor Drive-In: An open lot or part thereof with its appurtenant facilities devoted primarily to the showing of moving pictures of theatrical production on a commercial basis to patrons seated in automobiles or on outdoor seats. Tourist Home: A building (except a hotel or motel) containing not over nine (9) guest rooms, where, for compensation, lodging, meals or both are provided for the transient guests. A tourist home is not considered an accessory use or a home occupation. Also known as a “Bed and Breakfast.” Townhouse Dwelling: See Dwelling, Townhouse. Transitional House: A building (except a hotel or a motel) where sleeping rooms and lawful sanitary facilities are provided for persons who are homeless or otherwise in need of lodging on a temporary basis to facilitate movement into independent living within twenty-four (24) months. Compensation is not a necessary component of transitional housing, but occupants are required to pay compensation for lodging or to perform assigned tasks at or for the facility in exchange for the lodging. A meal(s) may be provided in transitional housing, but no access to cooking facilities is provided to occupants [unless work in the kitchen is part of an occupant’s assigned work task]. Transitional housing is not considered an accessory use or a home occupation. See also definitions Institution. Travel Trailer: A vehicular, portable structure built on a chassis, designed to be used as a temporary dwelling for travel, recreational and vacation uses, permanently identified Travel Trailer by the manufacturer of the trailer and, when factory equipped for the road, it shall have a body width not exceeding eight (8) feet, and a body length not exceeding thirty-two (32) feet. For the purpose of this Ordinance, the term Travel Trailer shall include the following similar types of vehicles: 46 a. Pick-up Coach, or Camper: A structure designed to be mounted on a truck chassis for use as a temporary dwelling for travel, recreations, and vacation. b. Motorhome: A portable, temporary dwelling to be used for travel, recreation and vacation, constructed as an integral part of a self-propelled vehicle. c. Camping Trailer: A folding structure, mounted on wheels and designed for travel, recreation, and vacation use. Travel Trailer Park: A plot of ground designed for and having the required facilities for servicing trailers and similar vehicles, and campers. Use: Any purpose for which a building or other structure 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 nonconforming use. Use, Accessory: See Accessory Use. Vacation Lodge: A building or buildings containing guest rooms where, for compensation, lodging and meals are provided, located on a lot at least seventy-five (75) percent of the land area of which shall be used to provide recreational facilities for the use of its guests. Such recreational facilities may include a golf course, swimming pool, tennis courts, and may include bridal paths, hiking trails, and other similar or related courts, and my include bridle paths, hiking trails, and other similar or related facilities, but no outdoor amusement devices other than normal playground equipment. Variance: A relaxation of the terms of the Zoning Ordinance where such Variance will not be contrary to the public interest and where, owing to conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of the Ordinance would result in unnecessary and undue hardship. As used in this Ordinance, a Variance is authorized only for height, area, and size of structure or size of yards and open spaces. Establishment or expansion of a use otherwise prohibited shall not be allowed by Variance, nor shall a Variance be granted because of the presence of nonconformities in the district or adjoining district. Warehouse: A structure or part of a structure, for storing goods, wares and merchandise whether for the owner or for others, and whether it is public or private. Yard: A required open space unoccupied and unobstructed by any structure or portion of a structure from thirty (30) inches above the general ground level of the graded lot upward, provided, however, that fences and walls may be permitted in any yard subject to height limitations as indicated herein. 47 Yard Measurements: Front Yard: Depth of required front yards shall be measured at right angles to a straight line joining the foremost points of the side lot lines. The foremost point of the side lot line, in the case of rounded property corners at street intersections, shall be assumed to be the point at which the side and front lot lines would have met without such rounding. Rear Yard: Depth of required rear yards shall be measured at right angles to a straight line joining the rearmost points of the side lot lines. The forward rear yard line of a required rear yard shall be parallel to the straight line so established. Side Yard: Width of required side yards shall be measured at right angles to a straight line joining the ends of front and rear lot lines on the same side of the lot. The inner side yard line of a required side yard shall be parallel to the straight line so established. Yard Types: Front Yard: A yard extending between side lot lines across the front of a lot. Rear Yard: A yard extending across the rear of the lot between inner side yard lines. In the case of through lot and reversed frontage corner lots, there will be no rear yard. In the case of corner lots with normal frontage, the rear yard shall extend from the inner side yard line of the side yard adjacent to the interior lot to the rear line of the half-depth front yard. Side Yard: A yard extending from the rear line of the required front yard to the rear. Zone Buffer: A strip established to separate the protect one type of land use from another. 48 ARTICLE III ESTABLISHMENT OF ZONING DISTRICTS 49 ARTICLE III. ESTABLISHMENT OF ZONING DISTRICTS SECTION 300. ESTABLISHMENT OF ZONING DISTRICTS For the purpose of this Ordinance, the following zoning districts are established. Residential Districts RR RS RUA RUB RT RML RMM Rural Residential District Suburban Residential District Urban Residential A District Urban Residential B District Townhouse District Multiple-Family Low Density District Multiple-Family Medium-Density District Business Districts BL BS BD BC BH Local Business District Service Business District Downtown Business District Community Business District Highway Business District Industrial Districts IL IG IE Light Industrial District General Industrial District Extractive Industrial District Planned Development Districts RP BP IP Planned Residential District Planned Business District Planned Industrial District Supplemental Districts HI HP FP Highway Interchange District Historic Preservation District Flood Plain District SECTION 301. OFFICIAL ZONING MAP The zoning districts are outlined on the Official Zoning Map, which together with all explanatory matter thereon, is hereby adopted by reference and declared to be a part of this Ordinance. The Official Zoning Map shall be identified by the signatures of Mayor and Members of City Council of Martinsburg, attested by the City Recorder, and bearing the seal of the City under the following words: “This is the Official Zoning Map of 50 Martinsburg referred to in Section 301 of the Martinsburg Zoning Ordinance,” together with the date of adoption of the Ordinance. 301.1 Changes in the Zoning Map: If in accordance with the provisions of this Ordinance and Article 24, Section 47, Chapter 8 of the Code of West Virginia, changes are made in zoning district boundaries or other matter portrayed on the Official Zoning Map, such changes shall be authorized by the members of the City Council. The changed zoning district on the map shall be keyed, by appropriate number or symbol, to an entry in an Official Zoning Record Book. The entry shall read as follows: “On ________(date), by official action of the City Council, the following (change) changes were made in the Official Zoning Map: (Brief description of nature of change,” which entry shall be signed by the Mayor and the Members of the City Council and attested by the City Recorder. The amending Ordinance shall provide that such changes or amendments shall not become effective until they have been duly entered upon the Official Zoning Map. No amendment to this Ordinance, which involves matter portrayed on the Official Zoning Map, shall become effective until after such change has been made on said map. No changes of any nature shall be made in the Official Zoning Map or matter shown thereon except in conformity with the procedures set forth in this Ordinance. Any unauthorized change of whatever kind by any person or persons shall be considered a violation of this Ordinance and punishable as provided in this Ordinance. Regardless of the existence of copies of the Official Zoning Map, which may from time-to-time be made or published, the Official Zoning Map, which shall be located in the office of the Building Inspector, shall be the final authority as the current zoning status of land, buildings and other structures. 301.2 Replacement of Official Zoning Map: In the event that the Official Zoning Map becomes damaged, destroyed, lost or difficult to interpret because of the nature or number of changes and additions, the City Council may, by resolution, adopt a new Official Zoning Map that shall supersede the prior Official Zoning Map. The new Official Zoning Map may correct drafting or other errors or omissions in the prior official Zoning Map, but no such correction shall have the effect of amending the original Zoning Ordinance or any subsequent amendment thereof. The Planning Commission shall certify as to the accuracy of the new Official Zoning Map prior to its adoption by the City Council. The new Official Zoning Map shall be identified by the signatures of the Mayor and members of the City Council, attested by the City Recorder, and bearing the seal of the City under the following words: “This is to certify that this Official Zoning Map supersedes and replaces the Official Zoning Map adopted (date of adoption of map being replaced) as part of the Zoning Ordinance of Martinsburg, West Virginia.” 51 SECTION 302. INTERPRETATION OF ZONING MAPS The following rules of interpretation shall be applicable to the maps: 302.1 A district name or designation shown on the district map indicates that the regulations pertaining to the district designed by that name extend throughout the whole area bounded by the district boundary lines within which such name of designation is shown. 302.2 Where the precise location of a district boundary line is indicated by a designated number of feet, shown on the map, which distance shall control. 302.3 Where the precise location of a boundary line is shown as within or binding along a street or alley, such boundary line shall be deemed to be the center of such street or alley unless the map clearly shows otherwise. 302.4 Where a boundary line is shown and its location is not fixed by any of the above rules of this section, its precise location shall be determined by scaling from fixtures shown on the map. 302.5 Where physical or cultural features existing on the ground are at Variance with those shown on the Official Zoning Map, or in other circumstances not covered above, the Planning Commission shall interpret the district boundaries. 302.6 If, after use of the above rules and the map, the district classification of any land is in question, it shall be deemed to be in the most restrictive of the adjoining districts. 52 ARTICLE IV GENERAL REGULATIONS 53 ARTICLE IV. GENERAL REGULATIONS SECTION 400. APPLICATION OF REGULATIONS The regulations set by this Ordinance within each district shall be minimum regulations and shall apply uniformly to each class or kind of structure or land except as hereinafter provided. 400.1 Compliance with Regulations: Except as hereinafter specified, no land, building, structure, or premise shall hereinafter be used, and no building or part thereof or other structure shall be located, erected, reconstructed, extended, enlarged, converted or altered except in conformity with the regulations herein specified for the district in which it is located. 400.2 Nonconforming Uses, Structures, and Lots: Any building, structure, or lots lawfully existing at the time of the adoption of this Ordinance, or lawfully existing at the time this regulation is subsequently amended, may continue to be used even though such building, structure or lot does not conform to use or dimensional regulations of the zoning district in which it is located, subject, however, to the following provisions: a. Structural alterations of a building or structure, or the use of a parcel lot, or tract of land which does not conform to the provisions of this Ordinance shall be allowed only if the buildings or structure to be altered or the parcel, lot, or tract of land to be used is in conformance with the requirements of the zoning district in which it is located; however, upon application, the Board of Zoning Appeals may approve the structural alteration of a building or structure, or the use of a parcel, lot or tract of land that is not in conformance with the provisions of the Ordinance, provided such alterations or extension of the same nonconforming use is restricted to an additional area not exceeding thirty-five (35) percent of those existing buildings, structures, parcels, lots, or tracts of land devoted to a nonconforming use. Said alterations or extensions shall be construed to mean one (1) alteration or extension and shall not be cumulative. b. If no structural alterations are made, a conforming use of a building, structure or premises may, with approval of the Board, be changed to another nonconforming use, which in the opinion of the Board is of the same or a more appropriate use or classification. c. Whenever a nonconforming use has been changed to a more appropriate use in the opinion of Board, such use shall not thereafter be changed to a less appropriate use or classification. d. If any nonconforming use of land shall cease for any reason whatsoever through a period of one (1) year, said nonconforming use shall be deemed to have been abandoned and the applicable zoning regulations shall apply to the area in question. In the event that the area in question abuts one or more district boundary line, then the highest use, 54 as defined herein, shall be applicable and the district zoning provisions therein shall apply. e. Nothing in this Ordinance shall prevent the restoration of a nonconforming use, building, or structure, destroyed by fire, windstorm, explosion, act of public enemy, accident, or for any other reason whatsoever, or prevent the continuance of the said nonconforming use, provided that the owners of the property in question shall file with the Building Administrator a notice of intention to continue the nonconforming use within six (6) months of said destruction or damage, and provided further that said restoration or construction is commenced within one (1) year of the date of said notice of intention to continue the nonconforming use in question. In the event that said notice is not filed, then the nonconforming use in question shall be deemed to have been abandoned. f. Nothing in this Ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or parts thereof declared to be unsafe by any official charged with protecting the public safety, under order of such official. 400.3 No part of a yard, or other open space, or other open space, or off-street parking or loading space required about or in connection with any building for the purpose of complying with this 400.4 No yard or lot existing at the time of passage of this Ordinance shall be reduced in dimension or area below the minimum requirements set forth herein. Yards or lots created after the effective date of this Ordinance shall meet at least the minimum requirements established by this Ordinance. Section 410. Nonconforming Lots, Structures, and Uses 410.1 Nonconforming Lots: A nonconforming lot is a lot that was subdivided before adoption, or amendment, of the Zoning Ordinance and which, after adoption or amendment of the Zoning Ordinance, does not meet the requirements of the district in which it is located. Notwithstanding limitations imposed by other provisions of this Ordinance, in any district in which single-family dwellings are permitted, a single-family dwelling and customary accessory buildings may be erected on any single lot of record at the effective date of adoption or amendment of this Ordinance. Such lot must be in separate ownership and not of continuous frontage with other vacant lots in the same ownership. This provision shall apply even though such lot fails to meet the requirements for area or width, or both, that are generally applicable in the district, provided that yard dimensions and requirements (other than those applying to area or width, or both), of the lot shall conform to the regulations for the district in which such lot is located. Variance of yard requirements shall be obtained only through action of the Board of Appeals. 410.2 Nonconforming Structures: A nonconforming structure is a structure, lawfully existing at the effective date of adoption or amendment of this Ordinance that 55 could not be built under the terms of this Ordinance by reason of restrictions on area, lot coverage, height, yards, or other characteristics of the structure of its location on the lot. Such a structure may be continued so long as it remains otherwise lawful, subject to the following provisions: a. No such structure may be enlarged or altered in a way that increases its nonconformity, except as provided in Section 410.6. b. Should such structure except single-family and two-family dwellings be destroyed by any means to an extent of more than fifty (50) percent of its replacement cost at time of destruction as determined by the Building Inspector, it shall not be reconstructed except in conformity with the provisions of this Ordinance. c. Should such structure be moved, it shall thereafter conform to the regulations for the district in which it is located after it is moved. This movement shall not include minor shifting or settling of the structure resulting from natural or accidental causes. 410.3 Nonconforming Uses: A nonconforming use is use which legally exists at the time of adoption or amendment of this Ordinance but that does not comply with the regulations of the district in which it is located. Such a nonconforming use may consist of a nonconforming use of land, a nonconforming use of structure, or a nonconforming use of land and structure. Nonconforming uses shall be subject to the following provisions: a. If no structural alterations are made, any nonconforming use of a structure, or structure and premises, may as a Special Exception be changed to another nonconforming use, provided that the Board of Appeals, either by general rule or making findings in the specific case, shall find that the proposed use is equally appropriate or more appropriate to the district than the existing nonconforming use. Once changed to a use considered more appropriate, the use of a structure or structure and premises shall not thereafter be changed to a use considered less appropriate. In permitting such change, the Board of Appeals may require appropriate conditions and safeguards in accord with the provisions of this Ordinance. b. A nonconforming use may not be extended, increased in size, or changed in design; and buildings may not be erected or extended on land used as a nonconforming use, except as provided in 410.6. c. A nonconforming use may be extended to any part of a building that is arranged, intended, or designed to be used for a use of the same classification. d. A nonconforming use, situated in a residential district, which shall remain idle and unused for a continuous period of two (2) years, whether or not the fixtures or equipment are removed, shall be considered abandoned as a nonconforming use and thereafter such building or land shall be used for a conforming use. 56 e. Whether a nonconforming use exists or whether a nonconforming use has been abandoned shall be a question of fact and shall be decided by the Board of Appeals after public notice and hearing and in accordance with the rules of the Board. f. The casual, temporary or illegal use of land or building shall not be sufficient to establish the existence of a nonconforming use. g. Where nonconforming use status applies to a structure and premises in combination, removal or destruction of the structure shall eliminate the nonconforming status of the land. h. In a residential district where land is being used as a nonconforming use and such use is the principal use and not accessory to the main use conducted in a structure, such use shall be discontinued not later than twenty-five years from the date of the passage of this Ordinance. During the twenty-five-year period, such nonconforming use may not be extended or enlarged either on the same lot or on an adjoining lot or lots. Any building incident and subordinate to such use of land such as a shed, tool house, storage shack or office shall be removed at the end of the twenty-five-year period, or, if such building is so constructed as to permit the issuance of a permit for a use not excluded from the district, such building may remain as a conforming use. Thereafter, both land and building shall be used only as conforming uses. If a use in a residential district becomes nonconforming due to amendment of this Ordinance, such use shall be discontinued, as outlined above, no later than twenty-five (25) years after the amendment of the Ordinance. 410.4 Repairs and Maintenance: Nothing contained in this Ordinance shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of such official. 410.5 Previous Permit: To avoid undue hardship, nothing in this Ordinance shall be deemed to require a change in the plans, construction, or designated use of any building authorized by a permit that has issued, and exercised within six (6) months of the passage or amendment of this Ordinance. 410.6 Special Exception to Enlarge a Nonconforming Use or Structure: In any district, the Board of Appeals may permit the expansion or continuation of a nonconforming use or structure if the Board determines that, owing to the nature of the use or structure, or the location and arrangement of the property, such expansion or continuation will not be detrimental to the surrounding development. The Board may establish limits to the permitted expansion or continuation and require special condition appropriate. 57 Section 420. LOT, YARD, AND BUILDING REQUIREMENTS For buildings that may hereafter be constructed, extended, or moved, the minimum requirements for lot area, frontage, yards, and maximum building height and coverage are outlined in the accompanying table for the principle uses in the different zoning districts. These are minimum requirements. Greater requirements for some uses are outlined in Article VI. Other requirements for lots, yards, and buildings are outlined in the following sections. Footnotes (/) to Table of Lot, Area, Yard and Building Requirements 1/. Maximum height may be increased as a Special Exception; see Section 423. 2/. Single-family detached and semi-detached dwellings, and two-family dwellings, shall meet the requirements of the RU Districts. 3/. Townhouses are permitted only in planned townhouse developments of at least five acres. See Section 623 for townhouse design standards. 4/. Side yards not required but if provided, shall be at least five (5) feet. If lot adjoins a residential district, a side yard equal to the side yard required in that district shall be provided. 5/. See Section 533 for requirements for Extractive Industrial District. 6/. Lot areas and yard sizes may be varied in the Planned Residential District, subject to site plan approval by the Planning Commission. See Section 541 for requirements. 7/. See Section 542 for requirements for Planned Business District. 8/. See Section 543 for requirements of Planned Industrial District. 9/. Townhouses permitted with a maximum lot coverage of thirty-five (35) percent in developments of at least five acres, and fifty (50) percent in developments of at least ten (10) acres. 58 District & Uses Residential Districts Minimum Lot Requirements Lot Area (sq.ft.)/Width (ft.) Total Per Unit Minimum Yard Requirements (ft.) Front Rear Side Building Requirements Maximum/Maximum Lot Height ft. Coverage % RR Single-Family detached dwelling Other Permitted Uses 20,000 20,000 100 25 25 15 35 30 20,000 — 100 25 25 15 35 30 10,000 10,000 80 25 20 15 35 30 10,000 — 80 25 20 15 35 30 7,000 7,000 60 25 20 10 35 30 5,000 5,000 50 25 20 10 35 30 10,000 7,000 5,000 — 60 60 25 25 20 20 10 10 35 35 30 30 5,000 5,000 50 25 20 10 35 30 4,000 4,000 40 25 20 10 35 30 5,000 5,000 1,500 50 50 25 25 20 20 10 10 35 35 30 30 1,600 7,000 1,600 16 60 25 25 20 20 — 40 35 35 30 12,000 1,600 7,000 3,000 1,600 75 75 20 20 20 10 — 25 25 25 40 40 40 30 35 30 7,000 1,600 7,000 1,500 1,600 25 25 25 20 20 20 10 — 60 16 60 10 40 40 40 30 35 30 BL — — — BS — — — 25 5 20 20 — — — — — BC — — — 10 BH — — — — 20 20 40 40 80 50 50 60 60 BD 4/ 4/ 4/ 4/ 4/ 20,000 20,000 20,000 — — 100 100 — — 25 25 25 25 25 25 4/ 4/ 20 50 50 50 50 25 25 RS Single-Family detached dwelling Other Permitted Uses RUA Single-Family detached dwelling Single-Family semi-detached dwelling Two Family Other Permitted Uses RUB Single-Family detached dwelling Single-Family semi-detached dwelling Multiple-family Dwelling Other Permitted Uses — RT 5/ Townhouse 3/ Other Permitted Uses — 10 RT 2/ Multiple-Family dwelling Townhouse 3/ Other Permitted Uses — — 10 RMM 2/ Multiple-Family dwelling Townhouse 3/ 9/ Other Permitted Uses — Business Districts — 60 60 Industrial Districts IL IG IE 5/ Planned Dev. Districts RP 6/ BP 7/ IP 8/ — See Sections 540-543 for requirements for planned development districts. 59 SECTION 421. GENERAL LOT REQUIREMENTS 421.1 Lot for Every Building: Every building hereafter erected shall be located on a lot as herein defined. In any district, only one main structure housing a permitted use may be erected on a single lot, unless yard and other requirements of this Ordinance shall be met for each structure as though it were on an individual lot. 421.2 Subdivision of a Lot: Where a lot is formed hereafter from part of a lot already occupied by a building, such separation shall be affected in such a manner as not to impair conformity with any of the requirements of this Ordinance with respect to existing building and all yards and other required spaces in connection therewith, and no permit shall be issued for the establishment of a land use or the erection of a building on the new lot thus created unless it complies with all the provisions of this Ordinance. 421.3 Lot Access Requirements: Every building hereafter erected or moved shall be on a lot adjacent to a public street, or with access by way of an approved private right-of-way with a minimum width of 25 feet, to an approved public street, and all structures shall be so located on lots as to provide safe and convenient access for serving, fire protection and required off-street parking. In a town house cluster subdivision or a planned unit development, the lots may face on a common open space, provided that the plan of such development is approved by the Planning Commission. This requirement shall not apply to farm dwellings and buildings and bona fide, isolated vacation cabins. 421.4 Lots in Two or More Districts: Where a lot in one ownership of record is divided by one or more district boundary lines, the regulations for the less restrictive district may extend not more than fifty (50) feet into the more restricted portion. 421.5 Parts of Lot Not Counted Toward Area Requirements: For any lot created by subdivision after the adoption date of this Ordinance, no part of such lot less in width than one-third the minimum requirement for the district in which it is located shall be counted as part of the required minimum lot area. Where a portion of a lot is less than one-third the required width at any point, only that part between said narrow portion and the street frontage shall be counted toward the required lot area. SECTION 422. GENERAL YARD REQUIREMENTS 422.1 Front Yard Requirements for Corner and Through Lots 422.11 In the case of corner lots, a full front yard of the required depth shall be provided along both frontages. The Building Inspector may permit a variation in the front yard required, as provided in Section 422.4. 422.12 In the case of corner lots with more than two frontages, the Building Inspector shall determine the front yard requirements, subject to the following limitations: 1) at least one front yard shall be provided having the full depth required 60 generally in the district; 2) no other front yard on such lot shall have less than half the full depth required generally. 422.13 In the case of through lots, unless the prevailing front yard pattern on adjoining lots indicates otherwise, front yards shall be provided on all frontages. Where one of the front yards that would normally be required on a through lot is not in keeping with the prevailing yard pattern, the Building Inspector may waive the requirement for the normal front yard and substitute, therefore, a special yard requirement that shall not exceed the average of the yards provided on adjacent lots. 422.2 Fences, Walls, and Hedges: Fences, wall, and hedges are permitted in any required yard, or along the edge of any yard, provided that: 1) no fence, wall, or hedge in or along the sides or front edge of any front yard shall be over four feet in height; 2) fences in or on the edge of a side or rear yard shall not exceed seven feet; and 3) fences on corner lots shall met the requirements of 422.3. Fences shall be constructed of attractive materials, and shall be designed and constructed to be attractive when viewed from neighboring properties. Fences shall be maintained in an attractive and safe condition. 422.21 Exception for Front Yard Fences: When the alignment of existing buildings has established a front building line greater or less than the required front building line, the line established by the existing buildings shall serve as the required front yard setback, as indicated in Section 422.4, and a fence over four feet high shall not extend past that line; except that, in townhouse, patio house, and planned residential developments, requiring site plan review, the Planning Commission may permit fences, walls, or hedges above four in or along the front yard when the site and buildings are designed to accommodate such enclosure. 422.3 Visibility at Intersections in Residential District: On a corner lot in any residential district, nothing shall be erected, placed, planted, or allowed to grow in such a manner as materially to impede vision between a height of two and a half and ten feet above the centerline grades of the intersecting streets in the area bounded by the street lines of such corner lots and a line joining points along said street lines fifty (50) feet from the point of the point of the intersection. This rule shall not apply to existing trees. 422.4 Front Yard Exception for Existing Building Alignment: When appropriate, the Building Inspector may increase or decrease the depth of the required front yard in any residential district so that such front yard shall approximate the average depth of the front yards of the existing dwellings on adjoining lots on each side, or if there be no such adjoining dwellings, shall approximate the average depth of the front yards of the nearest dwellings on the same side of the street within 500 feet. 422.5 Measurement of Front Yard Depths: Front yard depths, and side yards for corner lots, shall be measured from the road right-of-way line. For purposes of such measurement, no local road shall be considered as having a right-of-way less 61 than fifty (50) feet wide and no major state road less than sixty (60) feet wide, except that the street may be considered as having a right-of-way not less than 30 feet wide for purposes of yard measurement. 422.6 Projections into Yard Spaces: Steps, terraces, decks, carports, bay windows fire escapes, balconies, open porches, and other architectural features, may extend not more than thirty (30) percent of the existing yard depth, provided that no such projection shall be less than ten (10) feet from a side lot line. Such projections (except bay windows) may not be enclosed. SECTION 423. HEIGHT REQUIREMENTS 423.1 Purposes: Height limits are established for the different zoning districts to prevent the construction of structures which would block light and air from adjacent streets and properties, and which, because of their height, would be detrimental to surrounding development. Height limits for each zoning district are listed in the table in Section 420. No building or structure shall be constructed or increased in height to a height in excess of the height limits set forth in the table in Section 420, except as listed. 423.2 Exemptions from Height Limits: The height regulations of this Ordinance shall not apply to the construction of the following: a. Belfries, chimneys, conveyor, cupolas, derricks, domes, gas holders, fire escapes, fire towers, flag poles, flues, minarets, monuments, observation towers, parapet walls, pinnacles, silos, smokestacks, spires, steeples, transmission towers, ventilators, water towers, windmills, or outdoor radio and television towers, poles, antennae and wires, or other intended for human occupancy; b. Water towers or tanks other than those located on the roof of the building; c. Bulkheads, cooling towers, elevators, elevator enclosures, monitors, penthouses, skylights, stage towers, and water tanks, occupying less than twenty-five (25) percent, in the aggregate of the area of the roof of the buildings on which they are situated; d. Derricks, tipples, rock crushers, bins, washers and similar necessary equipment for quarrying limestone. 423.3 Height Limits for Public and Semi-Public Buildings: Schools, churches, hospitals and similar public and semipublic buildings shall conform to the height limits for the districts in which they are located, except that greater heights may be allowed as a Special Exception, as outlined in Section 423.4. 423.4 Modification of Height Limitations: The Board of Zoning Appeals is authorized to permit greater building heights than provided by these regulations as a Special Exception. The Board shall not permit a building to exceed the height limit unless it determines that a higher building is compatible with surrounding development, that the higher building will not adversely affect the surrounding area by blocking light or air, reducing privacy, or blocking significant views, and that yards and distances between buildings are increased where necessary. 62 The Board shall consider fire protection requirements when considering increased heights. More specific requirements for different uses are listed below. 423.41 Public and Semi-Public Buildings: The Board may allow a school, church, hospital, or other similar public or semi-public building to exceed the established height limit, provided that the front, side, and rear yards shall be increased by one foot for each foot by which the building exceeds the height limit for the district in which it is located. 423.42 Multiple-Family Dwellings: In districts where multiple-family dwellings are permitted, the Board may permit multiple-family dwellings to be increased above the height limit for the district, provided that the overall density of the development is not increased above the permitted density in the district. In such cases, the Board may require additional setbacks, increased distance between buildings, and any other conditions deemed necessary to ensure compatibility with adjacent development. 423.43 Commercial and Industrial Buildings: The Board may permit increased heights for commercial and industrial buildings. The Board shall determine that surrounding roads are adequate to serve increased employment density, and that any additional setbacks and distances between buildings established by the Planning Commission are met. SECTION 424. COURT REQUIREMENTS When a court is provided for the purpose of furnishing light and air to rooms in which individuals are to work, live, or sleep, the minimum dimensions shall be as follows: 424.1 Minimum Width: For residential buildings other than a single-family dwelling, the minimum width shall be the sum of the heights of the opposite building walls, but not less than forty (40) feet. For nonresidential buildings, two-thirds the sum of opposite building walls, but not less than thirty (30) feet. 424.2 Minimum Depth: One and one-half times the width. SECTION 425. FLOOD PLAIN DISTRICT, GENERAL PROVISIONS Purpose The purpose of these provisions is to prevent the loss of property and life, the creation of health and safety hazards, the disruption of commerce and governmental services, the extraordinary and unnecessary expenditure of public funds for flood protection and relief, and the impairment of the tax base by: a. regulating uses, activities, and development that, acting alone or in combination with other existing or future uses, activities, and development will cause unacceptable increase in flood heights, velocities and frequencies, 63 b. restricting or prohibiting certain uses, activities, and development from locating within areas subject to flooding, c. requiring all those uses, activities, and developments that do occur in flood-prone areas to be protected and/or flood proofed against flooding and flood damage, and d. protecting individuals from buying lands and structures that are unsuited for intended purposes because of flood hazards. Applicability These provisions shall apply to all lands within the jurisdiction of the City and shown as being located within the boundaries of the designated Flood Plain District which is considered as a part of the Official Zoning Map. Specific provisions of the Flood Plain District are delineated in Section 553 of this Ordinance. Warning and Disclaimer of Liability The degree of flood protection sought by the provisions of this Ordinance is considered reasonable for regulatory purposes and is based on acceptable engineering methods of study. Larger floods may occur on rare occasions. Flood heights may be increased by man-made or natural causes, such as ice jams and bridge openings restricted by debris. This Ordinance does not imply that areas outside the Flood Plain District or that land uses permitted within such districts will be free from flooding or flood damage. This Ordinance shall not create liability on the part of the City or any office or employee thereof for any flood damages that result from reliance on this Ordinance or any administrative decision lawfully made there under. SECTION 426. EXCAVATION The excavation of natural materials or filling of land shall be permitted without a Special Exception permit only to a degree necessary to permit construction of buildings, streets, or accessory uses for which a Building Permit has been granted. Materials used for fill shall be natural materials only, such as sand, gravel, or dirt, and shall not consist of rubbish, refuse, garbage, or decomposable animal or vegetable materials. Regrading shall be undertaken at a time, which is customary to the overall construction timetable of similar-type projects. Any excavation or filling which is not clearly necessary and incidental to an approved construction project shall require a Special Exception permit (see Section 613). SECTION 427. PROVISION OF WATER AND SEWERAGE SYSTEMS 427.1 Approved Water and Sewerage Systems Required: All new development is to be provided with approved water and sewage disposal systems, either through: a. Connection with public utility systems; b. Connection with approved private systems; or c. Use of an approved individual water supply (wells or cistern) and sewage disposal system (septic tanks or similar method). 64 No Building Permit shall be issued until the applicant indicates that sufficient provision has been or will be made for water supply and sewage disposal, and that these provisions meet the approval of the Building Inspector and the Berkeley County Health Department. No Use & Occupancy Permit is to be issued until the Health Department certifies that approved systems for water supply and sewage disposal have been provided. 427.2 Minimum Lot Area When Water and/or Sewerage Facilities are Lacking: Any lot to be served by an individual disposal system (septic tank) is to have a minimum area of 20,000 sq. ft. and a minimum frontage of 100 feet. The minimum lot areas shall be increased to include any additional area deemed necessary by the Berkeley County Health Department to ensure potable water supply and/or adequate sewage disposal. The Building Inspector shall not issue Building Permits until adequate lot area and frontage is provided. SECTION 430. OFF-STREET PARKING AND LOADING 430.1 Legislative Intent: Permanent off-street automobile parking space and truck loading space shall be provided for all new structures or uses and any enlargement of existing structures or uses. Structures and uses in existence or under construction on the date the amended Zoning Ordinance first becomes effective shall not be subject to parking and loading requirements. However, any parking and loading facilities now existing to serve such structures or uses shall not, in the future, be reduced except where they exceed such requirements, in which case they shall not be reduced below such requirements. When a structure or use which existed prior to the effective date of the amended Zoning Ordinance shall undergo any increase in intensity of use in the number of dwelling units, floor area, seating capacity, number of employees or other unit of measurements specified hereinafter for required parking facilities and when the increase would result in a requirement for additional parking or loading facilities through application of the Schedule of Requirements of this section, additional parking and loading facilities shall be provided on the basis of the total units of measurements of the new use, or of the alteration or expansion of the existing use. 430.2 Application Procedure: No application for a Building Permit or a Use and Occupancy Permit shall be approved unless there is included with the plan for such building, improvement, or use, a plot plan showing the required space designated for off-street parking and loading. The plot plan shall clearly show the size and location of parking and loading spaces, the width and arrangement of access driveways, and arrangement of walls, fences and screen planting. 430.3 Design of Parking Areas 430.31 Size of Parking Space: One automobile parking space shall consist of one hundred sixty-two (162) sq. ft. of area, with a minimum width of nine (9) feet and a length of eighteen (18). In addition, adequate interior driveways and entrance and exit driveways shall be provided to connect each parking space to the adjoining street. Parking spaces shall be clearly marked. 430.32 Setbacks and Landscaping: Parking areas shall be subject to the same front yard requirements as a building in that district, except that on the street side of a corner lot, no side yard of more than ten (10) feet shall be required for a parking area. In districts without a front yard requirement, the parking area shall be set back a minimum of ten (10) feet from the right-of-way line. The required 65 yard areas shall be set off from the parking areas by a curb or bumper, and the yards shall be appropriately landscaped. Parking may be allowed in the front yard space of townhouses. 430.33 Buffer Strips: When parking area adjoins a residential district, a screening fence or wall at least five feet high, or dense evergreen planting at least five feet high and five feet wide, shall be maintained along the side and/or rear lot lines of the parking area. 430.34 Lighting: When lighting of such parking area is provided, installations shall be arranged so as not to reflect or to cause glare into abutting residential lots or adjacent streets. 430.35 Surfacing and Drainage: All parking areas shall be surfaced with materials which will eliminate problems of dust and mud and shall be so drained as to prevent erosion damage to abutting properties or streets. 430.36 Entrances: On corner lots, entrances to parking areas shall be set back at least 20 feet from the point of intersection of property lines. No entrance or exit shall exceed 25 feet in width. 430.37 Location of Parking Areas: All automobile parking compounds shall be located on the site or conveniently near, and in no case more than three hundred feet distance from, the main building or use to which such parking facilities are appurtenant, except in the case of dwellings, where parking spaces shall be provided on the same lot as the dwelling. Land in any residential district adjacent to a business or industrial use may be used for an automobile parking area to serve these uses, provided that: a. The land so used immediately adjoins or is directly across an alley or street from the commercial or industrial district for which such off-street parking space is required; b. No charge shall be made for the use of said parking space; c. Only passenger vehicles (excluding buses) shall be permitted to use said parking space; d. No service of any kind shall be extended to individuals occupying vehicles in said parking spaces; nor shall such space be used for automobile service or repair; e. When land in any residential district used for off-street parking purposes abuts the side and/or the rear line of a lot in a residential district, buffer strips shall be provided as outlined in Section 430.33; and f. Additional protective conditions may be imposed in connection with the use of such residential land for off-street parking when, in the judgment of the Planning Commission, such are deemed necessary or desirable for the protection, convenience, and quiet of surrounding properties. 66 430.4 Schedule of Off-Street Parking Requirements: The following are minimum requirements and may be increased where necessary as a condition of site plan approval or Special Exception approval, as provided in Articles VI and VII. Other uses operated in association with the uses listed must be provided for in addition. Type of Use # of Spaces Unit of Measurement Residential Uses One-family detached, one-family semidetached, Two-family detached* 1* Dwelling Unit Townhouse 1.5 Dwelling Unit Multiple-family dwelling 1.5 Dwelling Unit 1.1** Room or suite Tourist home 1 Room Rooming and/or boarding house 2 3 guests Church or place of worship 1 4 seats Philanthropic institution 1 400 sq. ft. floor area Library or museum 1 400 sq. ft. floor area Hospital or nursing home 1 3 beds plus one per each two employees Public Residential Uses Hotel or motel** Cultural, Health, and Religious Uses Schools, junior colleges, universities, seminaries, convents As determined by the Building Inspector Social and Recreation Uses Swimming pool 1 7 persons legal occupancy Theatre, auditorium, arena or stadium*** 1*** 4 seats Bowling alley**** 2**** Bowling lane Other commercial recreational establishment 1 100 sq. ft. floor area Civic Club, private club or lodge 1 200 sq. ft. floor area 1 100 sq. ft. floor area 1 500 sq. ft. floor area 1 5 seats, plus 1 per each 2 employees, or 1 per 200 sq. ft. of floor area, whichever is greater. Sales and Services Food or drug store Furniture store, carpet and floor covering store, retail upholstery shop, office and business machine sales, showroom Restaurants or other places serving food, beverages or other refreshments 67 Undertakers and funeral chapels 10 Per public room, plus one space for each two employees All other retail sales & service establishments 1 150 sq. ft. floor area Professional office or office building 1 200 sq. ft. floor area Automotive Sales and Service Motor vehicle salesrooms, repair shops, public garages 1 150 sq. ft. floor area, but not less than 10 spaces. Each car service rack may be counted as 1 space, but driveway areas & space at gasoline pumps can’t be counted. Wholesaling and Industrial Uses Wholesale establishments, warehouses, industrial plant 1 300 sq. ft. floor area, or one space per each two employees of the largest shift, whichever is greatest. *Where no on-street parking is available along a lot frontage, such lots shall require two spaces per dwelling unit. **Requirements for restaurants, ballrooms, and other places of assembly must be provided for in addition. ***Where there are no fixed seats, one space per 100 sq. ft. of floor area available to the public. ****Requirements for restaurants must be provided in addition. Note: Requirements are for employees on largest shift. 430.41 When the number of spaces calculated in accordance with these regulations results in a number containing a fraction, the number shall be rounded off to the nearest whole number. 430.42 The off-street parking requirements for two or more uses may be satisfied by providing a common facility containing the sum of the number of spaces required for each of the uses, except as provided in Section 430.44. 430.43 Reasonable and appropriate off-street parking requirements for structures and land uses that do not fall within the categories listed above, shall consider all factors entering into the parking needs of each such use. 430.44 For integrated shopping centers, where the number of spaces required in a common facility is 500 or more, the off-street parking requirement may be reduced by one-fifth. Where the number of spaces required is 750 or more, the off-street parking requirement may be reduced by three-tenths. 430.5 Off-Street Loading Requirements: These loading space requirements are established in order to facilitate the movement of emergency vehicles, lessen congestion in the streets, and prevent obstructing traffic and blocking streets, alleys, and entrances to buildings. Off-street loading facilities shall be provided on the premises of any use hereafter established or enlarged, and occupying more than 3,000 sq. ft. of lot area that, during the course of a normal operating day, customarily receives or distributes goods or materials by trucks more than 20 feet in overall length. One such space shall be provided if the land devoted to such establishment or use has an area of more than 3,000 but less than 20,000 sq. ft. and one additional space shall be provided for each additional 20,000 sq. ft of land area or remaining fraction thereof exceeding 10,000 sq. ft. 68 Each loading space shall have a minimum width of 12 feet, a minimum length of 35 feet, and a minimum height, if covered, of 14 feet. Adequate space shall be provided for driveways, entrances, and exits. All loading space and related access areas shall be graded, improved and maintained in a manner permitting safe convenient use under normal weather conditions, and so as to avoid adverse effects on neighboring property as a result of dust or drainage. No required loading space shall be in any required yard adjacent to a public purposes, and shall not be used for general off-street parking or computed as part of required off-street parking. 430.6 Modification of Parking and Loading Requirements: The requirements of this section are intended to require adequate off-street parking and loading space for new development, but it is recognized that provision of parking and loading space may not be necessary, desirable, or possible in certain areas, and under certain conditions. Provision is made for reduction of parking and loading requirements in such cases. 430.61 Hardship and Special Cases: In cases of development or redevelopment of properties where application of the Schedule of Parking Requirements or Loading Requirements would create undue hardship, or would be detrimental to the existing pattern of development in the area, the applicant may present a modified plan for the provision of off-street parking or loading space. In special cases, where it can be demonstrated that the need for parking or loading space would not be as great as regularly required, the applicant may present a modified plan for parking and loading. An example would be an elderly housing project. In such cases, the Board of Zoning Appeals is authorized to approve a plan for a reduction of parking and loading spaces, or to waive the requirements completely, after referral to the Planning Commission. 430.62 Joint Use of Parking Areas: In cases of development of properties where several uses could effectively utilize the same parking area, because of different periods of peak demand, the applicant may appear before the Board of Zoning Appeals to present a modified parking plan. An example would be a church adjacent to a shopping center, where peak use hours would not coincide. The Board is authorized to approve such plans, when appropriate, after referral to the Planning Commission. The board shall require written evidence of an agreement for joint use and may impose any necessary additional conditions. 430.63 Parking in the Downtown Business District: The Martinsburg Comprehensive Development Plan provides for the unified development of the Downtown Business District (BD). A continuity of retail and service frontage is to be encouraged on the principal shopping streets and parking lots, public and private, are to be provided on the fringe of the shopping area. To require parking on a lot-by-lot basis would be detrimental to this pattern of development. Therefore, new development in the Downtown Business District is specifically exempt from the parking requirements of this section. If parking space is provided, it shall conform to the provisions for marking and construction outlined in this section. 69 SECTION 440. SIGNS 440.1 General Provisions: No sign shall be erected, hung, placed, or painted in any district, except as provided in this ordinance. No sign erected before the enactment of this ordinance shall be structurally altered or moved except in accordance with this ordinance. No permit shall be required for the repainting or repapering of a sign unless otherwise noted in this Article. 440.2 Permits for Signs: No sign shall be erected or displayed until the sign has been approved by the Building Inspector and a permit issued, except as permitted in Section 440.3. Application for permits shall be submitted on forms provided at the office of the Building Inspector. Each application shall be accompanied by plans showing the sign area, size, character, and color of letters; designs proposed; method of illumination, if any; proposed location; and, if a projecting business sign, proposed method of fastening such sign to the building or structure. The permit number and date of issuance shall be affixed to each sign in a conspicuous manner. Signs erected without conformance to these standards may be removed on order of the Building Inspector. 440.3 Signs Permitted Without a Permit: The types of signs listed below are allowed in any district without a permit, subject only to the requirements outlined for each type of sign and the construction and lighting standards of this section: a. Incidental Identification Sign, indicating the name or number of the building or premises or the accessory use of a dwelling for a home occupation or for professional purposes. Such sign shall not exceed two (2) square feet in area. b. Farm Signs, identifying the farm and advertising the sale of farm products grown or produced on the premises. Such sign shall not exceed eight (8) square feet in area; provided, it is located off the public right-ofway and does not interfere with traffic visibility. c. Construction Signs, identifying the contractors, engineers, or architects on building projects under construction, limited to a total area for all such signs of one hundred fifty (150) square feet. The signs shall be confined to the construction site and removed when construction is completed. d. Temporary Real Estate Signs, designating the zoning classification of the parcel, not exceeding twenty (20) square feet and being located on and advertising subject property for sale, rent and/or lease. e. Temporary Subdivision Identification Signs, not exceeding fifty (50) square feet in area, for each subdivision of five lots or more. Signs must be removed within thirty (30) days after completion of subdivision. f. Temporary Subdivision Approach Signs, not to exceed twenty (20) square feet. Each subdivision limited to four such signs. Signs must be removed within thirty (30) days after completion of the subdivision. 70 g. Political Campaign Signs, provided, however, that such signs are removed within five (5) days after election date. h. Street Banners and Temporary Banners advertising a public event, provided, however, that such signs shall not be displayed more than sixty (60) days prior to the event, and are removed within five (5) days after the event. i. Temporary Business Signs, excluding banners, not to exceed twenty (20) square feet, and not to be displayed longer than fifteen (15) days within any one-year period. j. Window Signs, provided that such signs shall not exceed thirty (30) percent of the glass area. k. Direction and Information Signs of a public or quasi-public nature. l. Zoning Signs required by this ordinance. m. Integral Building Signs, giving the name of the building, date of erection or the like, when made an integral part of the structure. n. Institutional Signs, given the name or announcement of any public charitable, or religious institution. Such signs shall be set back at least fifteen (15) feet from the property line and shall not exceed twenty-four (24) square feet in area. o. Private Traffic Direction Signs, for directing traffic onto or within a property. Such signs shall not include any advertising. p. Tourist Home Sign, for a tourist home permitted as a Special Exception, shall not exceed six (6) square feet in area. q. Historical Markers. r. Sidewalk Signs, not to exceed eight (8) square feet, and only for sidewalks that can provide a continuous unobstructed path of six (6) feet wide or more. Signs must be within the building frontage. Signs must be first registered with the Planning Department and may require approval by the Historic Preservation Review Commission before sign is authorized for display. s. Banners, not to exceed twenty (20) square feet, for temporary promotions or onsite business advertising, and not to be displayed for longer than fifteen (15) days within any one-year period. Banners must be first registered with the Planning Department. 440.4 Number and Area of Signs: For the purpose of determining number of signs, a sign shall be considered to be a single display surface or display device 71 containing elements organized, related, and composed to form a unit. Where matter is displayed in a random manner without organized relationship of elements, or where there is reasonable doubt about the relationship of elements, each element shall be a single sign. The surface area of a sign shall be computed as including the entire area within a regular geometric form or combinations of regular geometric forms comprising all of the display area of the sign and including all of the elements of the matter displayed. Frames and structural members not bearing advertising matter shall not be included in computation of surface area. Only one side of a two-face sign shall be used for computing sign area. 440.5 Sign Design 440.51 Lighting: Lighted signs shall not reflect or result in glare in adjacent residential lots or areas or on adjacent streets. Lighting or wording on a sign shall not be of a nature to be confused with public traffic and directional signs. 440.52 Placement on Building: Signs shall not be erected on the roofs of buildings and signs erected on the sides of buildings shall not extend above the peak of the roofline. Signs shall not obstruct any window, door, fire escape, stairway, or other opening intended to provide light, air, ingress or egress for any building or structure. Any sign mounted flat against the wall of a building and having a uniform thickness of not more than twelve (12) inches shall not be deemed an overhanging and/or projecting sign. 440.53 Construction and Maintenance: Signs shall be constructed so as to be structurally sound and shall be maintained in good order. Whenever a sign becomes structurally unsafe or endangers the safety of a building or premises or the public safety, in the opinion of the Building Inspector, he shall order that such sign be made safe or removed. Such order shall be complied with within five (5) days of receipt thereof by the person, firm, or corporation owning or using the sign or the owner of the building or premises on which such unsafe sign is affixed or erected. Banners intended for use as business signage displays for periods of more than fifteen (15) days shall be professionally constructed of exterior-grade, weatherresistant material. Banners shall be installed within a permanent mounting frame that surrounds the perimeter of the banner. Whenever a banner becomes torn, frayed, or begins to show deterioration of signage contents, the City Planner shall order that such banner be removed. Such order shall be complied with within five (5) days of receipt thereof by the person, firm, or corporation owning or using the sign or the owner of the building or premises on which the banner is affixed or erected. Subsequently, a new sign permit shall be required for another banner sign. No signs shall be permitted which are changeable message board signs unless they are less than forty (40) percent of the overall signage area of a designed business sign assembly that is architecturally compatible with the onsite business. 72 440.54 Location of Signs: No sign shall be located in a public right-of-way. No sign or supporting structure shall be located in such a manner that traffic visibility is impaired. The City may remove violating signage displays without prior notice to sign owner. 440.6 Business Signs on Buildings: Business signs attached to buildings may be erected in business and industrial districts in accordance with the following regulations. The total area of signs allowed on any building frontage is calculated on the basis of the length of that frontage. On a corner building, the sign area that may be displayed on the side street shall be limited to fifty (50) square feet, if the side street provides the principal frontage for residential lots on either side of the street between the building and the next intervening street. 440.61 BL District: The total area of signs on any one building frontage shall not exceed one (1) square foot for each lineal foot of the building frontage on which the sign or signs are placed, but in no case shall the total sign area exceed two hundred (200) square feet. 440.62 BC, BD, BH, BP, IL, IG, IE and IP Districts: The total area of signs on any one building frontage shall not exceed two (2) square feet for each lineal foot of the building frontage on which the sign or signs are placed, but in no case shall the total sign area exceed four hundred (400) square feet. Exception: For buildings that were originally built and used as residential dwellings, the total area of signs on any one building shall be governed by the sign regulations for the BL District. 440.7 Freestanding Business Sign: Individual commercial or industrial establishments may erect a freestanding business sign, providing the lot frontage is at least forty (40) feet. The freestanding sign may be erected anywhere back of the property line established in this ordinance, provided that no part of the freestanding sign shall extend past the street right-of-way line. The total sign area shall not exceed two hundred (200) square feet and the total height of the sign structure shall not exceed thirty (30) feet. Businesses or industries having frontage on more than one street may have an additional freestanding sign for each street frontage, provided that the total area for all freestanding signs does not exceed four hundred (400) square feet. Businesses or industries not in a BL District, located in a converted building that was originally built and used as a residential dwelling, may have one freestanding sign of not more than fifteen (15) square feet with a total height of sign structure not to exceed five (5) feet, to accommodate signage for all businesses or industries located within said structure. Signage must be architecturally compatible with the building. Integrated shopping centers, industrial parks, and similar combined developments may have larger, freestanding identification signs, limited to the name of the center or development and a listing of the major tenants. Such signs shall not exceed a total height of forty (40) feet and the total sign area shall not exceed five hundred (500) square feet. 73 440.8 Signs for Nonconforming Businesses: Signs for nonconforming businesses in a Residential District shall be governed by the sign regulations for the BL District. 440.9 Outdoor Advertising Signs: No new installation of outdoor off-premise advertising signs is permitted in accordance with City Ordinance 2006-43 “Commercial OffPremise Signs.” SECTION 441. APPROVAL OF LOCATION AND MAINTENANCE OF SIGNS REQUIRING ZONING PERMITS The following regulations shall, without exception, be observed with respect to the approval of location and maintenance of signs enumerated in Section 440. a. No sign shall be permitted that is an imitation of, or that resembles an official traffic control device, railroad sign or signal, or that hides from view or interferes with the effectiveness of any official traffic control device or any railroad sign, signal or traffic sight lines. b. No sign that implies the need or requirement of stopping or the existence of danger shall be displayed. c. No sign shall be located on the right-of-way of any road or on any slope or drainage easement for such road. d. No sign shall be permitted which contains statements, words or pictures of an obscene, indecent or immoral character, or such as will offend public morals or decency. e. No sign shall be placed on rocks, trees or on poles maintained by public utilities. f. No signs shall be permitted that become unsafe or endanger the safety of a building, premises or persons and unless maintained in a good general condition and in reasonable state of repair. g. Where a sign structure does not include advertising information or is in a deteriorated condition for a period of one hundred twenty (120) days, such sign shall be repaired and/or repainted or repapered to include advertising information. If this requirement is not fulfilled the sign structure shall be removed no later than sixty (60) days from notice of violation. h. No signs shall be permitted which are of a temporary or portable nature, except those specifically allowed under the provisions of Section 440.3. 74 ARTICLE V DISTRICT REGULATIONS 75 7-0-78 AN EMERGENCY ORDINANCE TO AMEND CERTAIN PROVISIONS OF THE CITY OF MARTINSBURG ZONING ORDINANCE IN REGARD TO THE LOCATION OF BARS, TAVERNS, COMMERCIAL SOCIAL CLUBS AND ANY OTHER ESTABLISHMENTS SERVING BEER, NONINTOXICATING BEER AND ALCOHOLIC BEVERAGES WHEREAS a pressing public emergency has arisen within that area of the City of Martinsburg known as the BD (Downtown Business District) zoned area, as shown on the official Zoning Map of the City of Martinsburg, West Virginia, in that there are an excessive number of business establishments within the BDzoned area offering for consumption on the premises nonintoxicating beer, beer, and alcoholic beverages, and whose customers and patrons are causing an increasing amount of physical, personal, and property damage to individuals and property in, around, and outside of said establishments, AND WHEREAS the BD-zoned area is the major retail, commercial, and business are of the City of Martinsburg, and frequented by numerous individuals daily, AND WHEREAS the ever-increasing incidences of violence, destruction, and injuring to individuals and property within the BD-zoned area have made this area dangerous to the public health, safety, and morals of the City of Martinsburg and its citizens, and those other individuals working, living, and traveling with the BD-zoned area, AND WHEREAS, in order to protect the health, safety, and morals of the citizens of Martinsburg and other individuals working, living and traveling within the BDzoned area it is necessary and imperative that the Zoning Ordinance of the City of Martinsburg be amended by emergency Ordinance procedures as permitted under W. VA. Code 8-11-4(d), so that the municipal government may better regulate the establishment and location of bars, taverns, commercial social clubs, and restaurants, NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MARTINSBURG THAT THE CITY OF MARTINSBURG ZONING ORDINANCE BE AMENDED AS FOLLOWS: 523.2: Private Clubs (Commercial), Private Clubs (Social), restaurants, taverns bars and any other establishments within the BD District which offer beer, nonintoxicating beer, wine, or alcoholic liquors for sale for consumption on their premises are not permitted nor allowed as an approved use. Any person wishing to establish such a business may apply for a Special Exception, such request to be dealt with as provided by the Special Exception procedures of this Ordinance. 523.2 (a): The provisions of 523.2 shall not apply to any Private Club (Commercial), Private Club (Social), restaurants, taverns, bars and other establishments within the BD District which offer beer, nonintoxicating beer, 76 wine, or alcoholic liquors for sale for consumption on the premises, which satisfied all of the following requirements the date of passage of this Ordinance (July 13, 1978). 1. Said establishment, through its owner, manager, or lessee had a valid license in effect to operate from the state of West Virginia (including a valid license from the Nonintoxicating Beer Commission or the Alcoholic Beverage Commission). 2. Said establishment, through its owner, manager, or lessee had a valid business license in effect to operate issued by the City of Martinsburg. 3. Said establishment was in operation as an active business enterprise and not closed for business on a temporary or permanent basis. SECTION 560. THE TABLES OF ZONING DISTRICT USES shall be amended to read that Private Club (Commercial), Private Club (Social), tavern bar, and restaurants shall, in the BD-zoned district, be permitted only by Special Exception. Tavern or bar: A tavern or bar shall be defined for the purposes of this statute as any place that serves beer, nonintoxicating beer, wine, or alcoholic beverages. 77 ARTICLE V. DISTRICT REGULATIONS SECTION 500. FORMAT OF DISTRICT REGULATIONS In this Article, the purpose of each zoning district is outlined and the uses allowed in each district are listed in Section 560 Table of Zoning District Uses. These uses are subject to the General Regulations outlined in Article IV, and the Design Regulations in Article VI. Special provisions, when applicable, are outlined for each zoning district. SECTION 501. TYPES OF DEVELOPMENT REVIEW In the zoning process, each use requires some form of development review. For purposes of establishing review procedures, uses are divided into the following three main groups: 501.1 Permitted Use: A use permitted by right in the zoning district, subject only to the General Regulations in Article IV and the Design Regulations in Article VI. In the case of an application for a permitted use, the Building Inspector will check the application to see that requirements have been met and, if so, will issue the Building Permit. The Building Inspector is also empowered to issue short-term use permits for carnivals, fairs, and similar temporary activities. 501.2 Site Plan Review Use: A use permitted by right in the zoning district, subject to the General Regulations in Article IV, the Design Regulations in Article VI, and site plan review and approval by the Planning Commission. The Planning Commission may require changes in the proposed site plan of the development before directing the Building Inspector to issue a Building Permit. Site plan review procedures and requirements are outlined in Article VII. 501.3 Special Exception Use: A use permitted in a zoning district only under certain conditions, after approval as a Special Exception by the Board of Zoning Appeals. The Board is also empowered to grant temporary Special Exceptions for certain uses. General conditions for granting a Special Exception are outlined in Article VII and specific requirements for different uses are established in Article VI. SECTION 510. RESIDENTIAL DISTRICTS 510.1 General Purpose: The maintenance and development of attractive, healthy, and well-planned residential areas is a major goal of the City. The residential zoning districts are established: 1) to protect the existing established residential neighborhoods where future development will generally occur in a gradual manner, through the infilling of vacant lots or the replacement of older structures, and 2) to guide new residential development in the developing areas, primarily on the fringe of the City, where growth will most likely be more rapid and where new forms of residential development may be appropriate. The different residential districts provide for a range of population densities in different types of residential dwellings—single-family detached and attached dwellings, 78 two-family dwellings, townhouses, and apartments. Several of the residential districts permit relatively high densities (10 or more dwelling units per acre) in townhouses, apartments, and planned community developments. Such districts are to be mapped only where such concentrations of population are considered appropriate in the overall community pattern and where the necessary public services and facilities are available. Water and sewerage systems must be adequate or capable of being improved to handle increased traffic volumes. It is the policy of the City that future high-density development be planned and constructed to modern design standards. Apartments, townhouse developments, and planned communities shall require site plan approval by the Planning Commission. All residential districts permit related public and private facilities, such as churches, schools and parks, but incompatible commercial and industrial uses are not allowed. SECTION 511. RURAL RESIDENTIAL DISTRICT (RR) 511.1 Purpose: The Rural Residential District requires relatively large lot (20,000 sq. ft) and corresponding yard, frontage and coverage requirements. It provides for a form of low density residential development appropriate for the fringe of the urban area. Use of septic tanks and wells is possible at this density in some locations, but where 20,000 sq. ft. is not sufficient area, the lot size shall be increased to a point where health standards are met, as indicated in Section 427. SECTION 512. SUBURBAN RESIDENTIAL DISTRICT (RS) 512.1 Purpose: The Suburban Residential district provides for development of singlefamily residential areas at a density of approximately four dwelling units per acre (100,000-square-foot lots). Water and sewer systems must be used for this size of lot so this district is to be mapped only where water and sewer lines are available or can be easily extended. SECTION 513. URBAN RESIDENTIAL A DISTRICT (RUA) 513.1 Purpose: The Urban Residential A District provides for relatively compact residential development at a maximum density of approximately six (6) dwelling unites per acres. Single-family detached, semi-detached, and two-family dwellings are permitted. The RUA District is mapped in the newer sections of the city and may be appropriately extended to developing areas on the urban fringe. This district shall be mapped only where water and sewer lines are available or can be easily extended. SECTION 514. URBAN RESIDENTIAL B DISTRICT (RUB) 514.1 Purpose: The RUB District is mapped in the older residential areas of Martinsburg where a variety of housing types, generally on small lots have been constructed over a long period to form a compact pattern of residential development. These older areas are almost completely built up and future development will generally occur in a gradual lot-by-lot fashion. The RUB District permits a variety of housing types, compatible with the character and scale of existing development, and provides appropriate standards and limitation on population density. 79 514.2 Special Provisions 514.21 Conversions of Existing Structures to Apartment Use: Conversion of existing structures to house two (2) or more dwelling units is permitted in the RUB District, provided that there shall be at least 1,500 square feet of lot area per dwelling unit. Off-street parking space shall be provided for the additional dwelling units created, as outlined in Section 430. New dwelling units created by conversion of existing structures shall meet all applicable sections of the City Code. 514.22 Construction of New Apartment Buildings: New apartment buildings constructed in the RUB District shall be located on a lot of at least 5,000 square feet and a frontage of at least fifty (50) feet. There shall be at least 1,500 square feet of lot area per dwelling unit but not over 20 units per acre. Off-street parking shall be provided as specified in Section 430. An apartment project consisting of two or more apartment buildings on a single parcel, shall be located on a lot or parcel with a total area of at least 20,000 square feet and a frontage of at least 100 feet. There shall be at least 1,500 square feet of lot area per dwelling unit but not more than twenty (20) units per acre. SECTION 515. TOWNHOUSE DISTRICT (RT) 515.1 Purpose: The Townhouse District is established to provide suitable sites for modern townhouse developments, allowing the maximum possible amount of freedom in the design of townhouses and their grouping with less dense zoning categories. A townhouse as defined in this Ordinance is a single-family attached dwelling. The provisions of this district provide for attached townhouses on separate lots. Townhouse developments shall be of high standard of design, with respect to both land planning and architecture. In order to realize this objective, certain minimum size and open-space requirements are established, and all townhouse developments are subject to site plan review and approval by the Planning Commission. 515.2 Special Provisions 515.21 Minimum Size of Townhouse District Development: No group of townhouses shall be located on a tract of land of less than five (5) acres, unless the land adjoins property already zoned RT or unless the Planning Commission recommends that a smaller land area can be developed with townhouses in accordance with the purposes of this Ordinance. This minimum area requirement is intended to provide for obtaining the design benefits and common open space required in townhouse development. The Board of Appeals shall have the power to permit, as a Special Exception, the reduction of the minimum tract size to not less than 20,000 square feet upon a finding that such action is advisable and necessary to permit the redevelopment of a deteriorated or obsolete area in the older sections of Martinsburg. In such instances, the required common open space area may be eliminated. 515.22 Application Procedure: In subdividing a tract of land for townhouse development, the developer shall follow the procedure outlined in the Martinsburg Subdivision Regulations. The developer shall also submit a site plan showing the features 80 listed in Section 701.4. A building profile or front elevation plan shall be submitted to show the design of the proposed townhouses. 515.23 Review Procedure: In reviewing a townhouse development site plan, the Planning Commission shall be guided by the general standards for site plan approval in Section 701.7, the townhouse design standards in Article VI, and the purpose of the Townhouse District. 515.24 Recording of Common Land Agreements: Record plats for townhouse developments shall include a statement of the covenants, agreements or other documents concerning the ownership and maintenance of the common land. SECTION 516. MULTIPLE-FAMILY LOW-DENSITY DISTRICT (RML) 516.1 Purpose: The Multiple-Family Low-Density District provides for construction of the relatively low-density type of apartment development with a maximum density of ten (10) units per acre. This type of development can form a buffer between single-family areas and higher density apartments or commercial areas. SECTION 517. MULTIPLE-FAMILY MEDIUM-DENSITY DISTRICT (RMM) 517.1 Purpose: The Multiple-Family Medium-Density District provides for construction of apartment developments at a higher density than in the RML District, a maximum of twenty (20) units per acre. It is intended that developments at this density be allowed only adjacent to major highways. SECTION 520. BUSINESS DISTRICTS 520.1 Purpose: The Business Districts are to be established to provide sufficient space at locations throughout the Martinsburg area for development of modern commercial uses, serving the needs of local areas, the larger community, and highway travelers. All development in business districts requires site plan approval by the Planning Commission. SECTION 521. LOCAL BUSINESS DISTRICT (BL) 521.1 Purpose: The Local Business District is established to provide for the development of commercial and related activities serving the daily needs of residents of nearby areas. Local Business Districts include a limited range of retail stores and personal service establishments sufficient to serve daily shopping needs of adjacent neighborhoods, but which will be of a scale and nature compatible with nearby residential development. 521.2 Permitted Uses: Uses permitted in the BL District are listed in Section 560 and are intended to include those local retail businesses, trades, services, and professions supplying commodities or performing services primarily for the residents of the surrounding area. The following restrictions shall apply to uses in the BL District: a. Goods may be produced on the premises, provided they are produced for retail sale on the premises only. The production of such goods shall not involve any process that is noxious, offensive, or otherwise, objectionable by reason of dust, fumes, gas, smoke, odor, noise, or vibration. 81 b. A laundry, dry cleaning, or similar service establishment permitted in the BL District shall be designed to serve only local needs and shall not serve as the central service establishment for entire community. 521.3 Special Exception Uses: Uses permitted as Special Exceptions in the BL District are listed in Section 560. In granting a Special Exception, the Board of Zoning Appeals shall determine that such a use is compatible with the overall development of the BL District and with the surrounding area. SECTION 522. SERVICE BUSINESS DISTRICT (BS) 522.1 Purpose: The Service Business District is intended to provide for limited business activities in residential areas. The Service District is intended to be mapped primarily in the older, compact residential areas surrounding the Downtown Business District, but it may also be mapped in other sections of the city where limited business activities will be compatible with the residential character of the area. The Service District permits the conversion of existing dwellings for certain business uses and the construction of new buildings for the same uses, with certain design restrictions. 522.2 Permitted Uses: Uses permitted in the Service District are listed in Section 560. Table of Zoning District Uses. They include three main groupings: 1) residential uses, 2) public and semipublic uses customarily found in residential areas, and 3) limited business uses, primarily offices and other service activities. It is specifically the intent of this Ordinance that retail trade establishments not be permitted in the Service Business District. In the case of a service-type use not specifically listed in Section 560, the Building Inspector may determine whether that use is to be permitted in the district. His decision may be appealed to the Board of Zoning Appeals. 522.3 Design Limitations: In the Service Business District, buildings though constructed as dwellings may be used, and new buildings may be constructed to be used, for the service business activities listed in Table 560, with the following design limitations: a. There shall be no advertising sign or device on the lot, on the building, or in or on any of the doors or windows of the building, except that for each office or professional person occupying the building, there may be one nonilluminated name plate not exceeding one square feet in area attached to the exterior of the building; b. No building may be constructed with or altered to produce a store front, show window, or display window; c. There shall be no display from windows or doors and no storage of merchandise in the building or on the premises, and d. There shall be no machinery or equipment, other than machinery or equipment customarily found in professional offices and ordinary business offices, used or stored in the building or on the lot. 82 522.4 Planning Commission Review: The conversion of an existing building for business use, or the construction of a new building for business use in the Service District shall require site plan review by the Planning Commission. In its review, the Planning Commission shall be guided by the purpose of the Service District and shall seek to ensure that all new construction is compatible with the character of the area. The Planning Commission shall place special emphasis on the design and screening of the parking areas. SECTION 523. DOWNTOWN BUSINESS DISTRICT (BD) 523.1 Purpose: The Downtown Business District of Martinsburg, centered on Queen Street, is the major retail and service center for the City and Berkeley County. The maintenance and continued improvement of the Central Business District is a major goal of the City. The Comprehensive Development Plan outlines development policies for the future development of the downtown area as a modern commercial center, maintaining a grouping of intensive retail and service activities primarily oriented to the pedestrian. An effort should, therefore, be made to preserve the continuity of retail and business frontages along the principle shopping streets. The Downtown Business District permits a wide variety of retail, office, and public activities suitable to a downtown location. However, extensive commercial uses such as automobile service stations, automobile sales lots, and similar uses should not be permitted where they would damage the continuity of the business frontages. Such uses are allowed in the Downtown Business District only as Special Exception. For the same reason, and to obtain greater efficiency, off-street automobile parking in the downtown district should be provided in large parking areas behind the main buildings, rather than on a building-by-building basis. Development in the Downtown Business District is therefore exempt from off-street parking requirements. In order to improve the safety and attractiveness of the downtown area, restrictions on overhanging signs are established in Section 440. SECTION 524. COMMUNITY BUSINESS DISTRICT (BC) 524.1 Purpose: The Community Business District provides for development of commercial and related activities serving the entire community, meaning the entire city and all or part of Berkeley County and neighboring counties. The Community Business District is mapped outside the Downtown area, adjacent or related to major highways. Uses permitted in this district draw customers from a wide trade area and in many cases their size and scale of operation would be incompatible in a local business district. 524.2 Permitted Uses: Uses permitted in the BC District are listed in Section 560. They include a wide range of trades and services, including some “heavy commercial” activities such as bottling plants and dry cleaning plants. In the case of a use not specifically listed in Section 560, the Building Inspector shall determine if it shall be permitted in the BC District. 83 SECTION 525. HIGHWAY BUSINESS DISTRICT (BH) 525.1 Purpose: The Highway Business District is established to provide areas primarily oriented to serving the needs of the traveling public, including uses such as automobile service stations, motels, truck service centers, and restaurants. This district will be mapped primarily near the Interstate highway interchanges. SECTION 530. INDUSTRIAL DISTRICTS 530.1 General Purpose: Industrial districts are established to provide sites for a variety of industrial purposes. Many areas in and around Martinsburg are suitable for industrial development but some areas have special value for industrial use because of terrain and proximity to railroads, major highways, and Interstate highway interchanges. It is important that these key areas, outlined in the Comprehensive Development Plan, be reserved in order to prevent incompatible development that would prevent long-range use for industrial purposes. Provision is made for establishment of planned industrial districts. An Extractive Industrial District is also provided for those lands near Martinsburg used or designated for mineral extraction. All new development in industrial districts requires site plan approval by the Planning Commission. SECTION 531. LIGHT INDUSTRIAL DISTRICT (IL) 531.1 Purpose: The Light Industrial District is established to provide areas for a wide range of manufacturing, assembling, repair, storage, and related commercial activities. These light industrial uses should be separated from residential and retail commercial areas but their nuisance value in terms of noise, smoke, light and truck traffic is relatively limited, allowing some flexibility in location of Light Industrial Districts. Light Industrial Districts should be located near or adjacent to major highways. 532.2 Permitted Uses: Uses permitted in IL Districts include those identified as “light industrial uses.” For the purpose of this section, light industrial uses shall include the following types of activities: a. Manufacture, compounding, processing, or packaging of food and food products, and cosmetics, toiletries, and pharmaceuticals, except meat products, vinegar, yeast, and rendering or refining of fats and oils. b. Manufacture, compounding or assembling of articles using the following prepared materials: bone or shell, cellophane, paper, fur, glass, leather, plastics, precious or semiprecious metals or stones, rubber, textiles or cloth products, tobacco, wood or wood products. c. Manufacture of ceramic products, excluding building materials, using only previously pulverized clay, and kilns fired by electricity or gas. d. Repair, manufacture or assembling from prepared materials of the following: musical instruments, clocks or watches, toys or novelties, 84 electrical appliances, electronic devices, light sheet metal products, machine tools and machinery not requiring the use of a punch press over one hundred (100) tons rated capacity or drop hammer, office equipment. e. Manufacturing, assembling, or repair services similar to those listed above. Goods manufacture or processed in the IL District may be sold at retail on the premises. 531.3 Prohibited Uses: Any use or trade that, though properly and safely operated with ordinary care, according to good and reasonable practice, causes noxious or offensive odors, gas, fumes, smoke, dust, vibrations or noise that would substantially interfere with other uses of property permitted in the Light Industrial District, or with development in adjacent districts, shall be prohibited. Determination of whether a use is allowed in the IL District shall be made by the Building Inspector and his decision may be appealed to the Board of Zoning Appeals. SECTION 532. GENERAL INDUSTRIAL DISTRICT (IG) 532.1 Purpose: The General Industrial District is established to provide areas for a range of manufacturing, assembling, repair, storage, and related commercial uses that may involve substantial nuisances and should be located apart from commercial and residential areas. 532.2 Permitted Uses: Uses permitted in the IG District are listed in Section 560. Table of Zoning District Uses and include “general industrial uses.” For the purpose of this section, “general industrial uses” include the following: a. Light industrial uses, b. Any other manufacturing, storage, or assembling operation not listed in Section 560, except those uses listed in Section 532.3 that require Special Exceptions. 532.3 Special Exceptions: There are certain industrial uses that, because of excessive danger or nuisance characteristics, should not be allowed in even the General Industrial District except under special conditions. These uses, listed below, are to be allowed only as Special Exceptions subject to conditions established by the Board of Zoning Appeals: a. Abattoirs or slaughterhouses, b. Fat rendering, grease, lard, or tallow refining or manufacturing, c. Incineration or reduction of dead animals, garbage, or offal, d. Manufacture of: Acetylene gas; chlorine; glue; acids; disinfectants; gypsum; ammonia; fertilizer; insecticides; bleaching powder; Explosives, fireworks, or gun powder (or storage of same); celluloid; gelatin; matches; and plaster. 85 e. Tanning and curing of leather, raw hides, and skins. f. Any other use that, in the opinion of the Building Inspector, has nuisance or danger characteristics of a similar nature to those uses listed above. SECTION 533. EXTRACTIVE INDUSTRIAL DISTRICT (IE) 533.1 Purpose: Large areas near Martinsburg are used or reserved for the extraction of mineral resources: limestone, shale and clay, and for the related industrial uses such as the processing of limestone, and the manufacturing of cement and clay products. Classification of lands in the IE Districts provides for use of these areas for mineral resource extraction and related manufacturing operations. Classification of land in the IE District also serves as a guide that adjoining properties should be zoned only for uses compatible with the possible adjacent mineral extraction activities. Extraction of mineral resources in other zoning districts is allowed only as a Special Exception. 533.2 Permitted Use: Uses permitted in the IE District include uses identified in Section 560, Table of Zoning District Uses, as “mineral extraction, processing, and related uses”, and “mineral-based manufacturing.” For the purposes of this section, these terms are defined as follows: a. Mineral extraction means the removal of soil, sand, gravel, rock, or other mineral from the ground by any means. b. Mineral processing means the sorting, breaking, storage, or compounding of mineral resources. c. Related uses means all uses customarily related to mineral extraction and processing, including storage and maintenance of transport vehicles, office space, and dwellings for company employees. d. Mineral-based manufacturing means the manufacture of products with a mineral base, including cement, lime, brick, tile, and similar products. 533.3 Mineral Extraction Regulations: Mineral extraction and related uses in the IE District shall be subject to the following regulations: a. No mining or quarrying operations, including the storage or disposal of processed material, shall be carried on within fifty feet of any adjoining property lines or the right-of-way of a public road. b. No crushing, screening, processing or storage machinery shall be located within 200 feet of any adjoining property located in any other zoning district other than the IE District, or the right-of-way of a public road. c. All machinery and operations shall be maintained and operated so as to minimize dust, noise, vibration and other adverse features. 86 SECTION 540. PLANNED DEVELOPMENT DISTRICTS 540.1 General Purpose: Urban development has traditionally taken place on a gradual, lot-by-lot basis, with lots sold separately and buildings constructed one-by-one over a long period. This has been the usual method of development in Martinsburg. Traditional zoning is geared to this lot-by-lot system of development, a system that necessitates design requirements that are somewhat rigid. Different types of development are separated in different zoning districts. The old system of land development is changing. Many residential, commercial, and industrial developments are now built as a unit, with land subdivision and building construction occurring together. Under these conditions, rigid design and use requirements can be varied if review controls are used to ensure compatibility. The Planned Development Districts are established to permit modern, large-scale development. Under appropriate conditions, outlined below, some of the zoning requirements may be varied when an area is developed in accord with an overall plan. 540.2 General Requirements: Three planned development districts are established in this Ordinance: 1) Planned Residential District (RP); 2) Planned Business District (BP); and 3) Planned Industrial District (IP). Specific requirements for each of the planned development districts are indicated in the following sections. Applications for zoning an area in one of the three planned development categories may be accepted under the following conditions. a. The area proposed for this zoning category shall be in one ownership or, if in several ownerships, the proposal for zoning map amendment shall be filed jointly by all the owners of the property included in the plan. b. The site shall be of a size and shape suitable for the development proposed. The site shall meet the minimum size requirements outlined for each of the planned development districts. c. The site is or can be served with adequate public or community water and sewerage service meeting Health Department Standards. d. The site is located on or near a main highway and existing or programmed roads will be adequate to serve the traffic generated by the project. e. The owners or developers must indicate that they plan to begin construction of the development within two years after the necessary change in zoning and complete construction in a reasonable period. If construction does not begin within two years, the zoning of the site shall revert to its previous classification, unless a time extension is agreed to by the Planning Commission and the owners or developers. 540.3 Application and Review 540.31 Data to Accompany Application: Together with the application for zoning reclassification of the site, there shall be submitted a preliminary, overall development plan, which shall show: a. The information outlined in Section 701.4 as being required for site plan review. 87 b. Preliminary plans and elevations of the proposed buildings. c. Additional information outlined for the individual planned development districts. 540.32 Commission Review: Upon receipt of an application for a zoning map amendment for a planned development, accompanied by the plans and information required in Section 540.31, the Planning Commission shall review the proposed development, considering its relationship to the surrounding area and to the development pattern outlined in the Comprehensive Development Plan. 540.33 Commission Action: The Commission may approve the tentative plan as submitted or, before approval, may require that the applicant modify, alter, adjust or amend the plan. Upon Approval of a tentative plan, the Building Inspector shall advertise for a zoning map amendment hearing, in accordance with the provisions of Article XI. 540.34 Official Plan: If the proposed amendment is approved by the City Council and the land placed in a planned development district, the owner or owners, before beginning development, shall submit a final plan to the Planning Commission. The final plan, after adoption by the Commission, shall be deemed an Official Plan. The Official Plan shall be signed by the Commission’s President and by the property owner, who by formal agreement shall certify to the City Council his willingness to abide by the conditions and terms of the adopted plan. The Commission shall file with the City Council a certified copy of the Official Plan for each area zoned as a planned development district. The Official Plan may be amended, the procedure being the same as in the case of the original plan. Minor amendments of site plan features may be approved by the Planning Commission without an additional hearing. SECTION 541. PLANNED RESIDENTIAL DISTRICT (RP) 541.1 Purpose: The Planned Residential Community District is intended to provide for the development of planned residential areas incorporating a variety of housing types, open space, and space for community facilities. When appropriate, limited commercial and industrial development may be included as part of a planned residential development. 541.2 Special Requirements: In addition to meeting the general requirements outlined in Section 540.2, an application for Planned Residential District shall meet the following conditions: a. In developing areas on the fringe of the city, the area shall be large enough to permit the development of a complete community or neighborhood having a range of dwelling types; necessary local shopping facilities and off-street parking areas; parks, playgrounds, or reservation of area therefore; and reservation for educational facilities; wherever these are deemed necessary, and for business and industry to provide 88 local employment opportunities, if appropriately located and in harmony with the Comprehensive Development Plan. The minimum size of an area proposed to be zoned as a Planned Residential Development shall be ten (10) acres when the land is located in a developing area on the fringe of the city. The Planning Commission may accept parcels smaller than ten (10) acres provide they are contiguous with areas zoned Planned Residential. b. The planned residential development concept may also be utilized in rebuilding areas in the older sections of Martinsburg, where relatively large tracts can be assembled by private or public action for large-scale rebuilding in accordance with overall plan. In such cases, requirements for large open areas, school sites, and other facilities that would not be possible under the conventional zoning district designation. The minimum size of an area proposed to be zoned in the Planned Residential District, and located in the older sections of Martinsburg, shall be two (2) acres. c. The area shall be adaptable to complete community development, being bounded by major thoroughfares, streets, railroads, or other external barriers and, as far as possible, shall have within or through it no major thoroughfare or other physical feature that will tend to destroy the neighborhood or community cohesiveness. 541.3 Data to Accompany Application: In addition to the required information outlined in Section 540.31, the application for a Planned Residential District shall include the following: a. Proposed lot layout. b. Proposed reservations for parks, parkways, playgrounds, school sites, and other open spaces. c. Proposed location of neighborhood business are and off-street parking space. d. Types of dwellings and portions of the area proposed therefore. e. Proposed location of dwellings and parking areas. f. A tabulation of the total number of acres in the proposed project and the percentage thereof designated for each of the proposed dwelling types, neighborhood retail business, other nonresidential uses, off-street parking, streets, parks, schools and other reservations. g. A tabulation of overall density per gross acre. h. Preliminary plans and elevations of the several dwelling types. 541.4 Density of Development: The overall density of a Planned Residential District proposed to be located in a developing area on the fringe of the City shall not 89 exceed eight (8) units per gross acre. The overall density of a Planned Community proposed to be located in the older sections of Martinsburg shall not exceed fifteen (15) units per gross acre. For the purposes of this section, the gross area shall include all land within the area intended for use for residences, residential parking space, reservation for community recreational and educational facilities, interior streets and to the center line of bounding streets but not over fifty (50) feet from the property lines abutting such streets. Area used or reserved for large regional parks or parkways, land subject to recurring flood, swamp or marshland and nonresidential uses shall be excluded in computing the gross area. The Planning Commission may require a lower gross density if review of the proposed development indicates that the maximum allowable density is excessive for the area. 541.5 Permitted Uses: The uses permitted in the RP District are listed in Section 560 Table of Zoning District Uses, and include all uses allowed in the single-family and multi-family residential districts, the planned business district, and the planned industrial district. The Planning Commission shall permit inclusion of development pattern of the surrounding area. Commercial uses shall not occupy more than five (5) percent of the area of the tract and shall be designed to primarily serve the residents of the planned residential development. Commercial uses shall not be built or established prior to the residential development they are intended to serve. 541.6 Modification of Design Requirements: In review of a Planned Residential Development, the Planning Commission may waive or modify the area, yard, height, and other design requirements for the different types of development in the community if such modification will increase the amenities of the development without sacrificing public health and welfare requirements. SECTION 542. PLANNED BUSINESS DISTRICT (BP) 542.1 Purpose: The Planned Business District is established to provide for the development of unified shopping centers, developed at one time or in stages, in accordance with an overall plan. With unified development of buildings, parking areas, and screening, it is often possible to permit zoning for a planned shopping center where a BL or BC district would be undesirable. 542.2 Special Requirements: In addition to meeting the general requirements outlined in Section 540.2, an application for a Planned Business District shall meet the following conditions: a. The site size shall be adequate for the type of shopping center proposed. The minimum size for a planned neighborhood shopping center (BL District-type uses) shall be three (3) acres and the minimum size of a planned community shopping center (BC District-type uses) shall be fifteen (15) acres. The site shall be of a shape suitable for shopping center development, and not split by any existing or proposed street. b. The shopping center shall be designed with ample parking facilities for cars of the patrons with separation of loading and unloading facilities, and 90 with reasonably necessary safety provisions for pedestrians, and provided with necessary drainage, lighting, directory signs, and supervision as the case may require. c. The total area of all buildings proposed shall not exceed twenty-five (25) percent of the entire lot area of the project. All buildings shall be set back not less than fifty feet from all streets bordering the project. d. The shopping center buildings shall be designed and built as a unified project, with good architectural treatment. The project shall be served by single common sewer, gas, water, lighting, power and heating system, designed and built to maintain the unified feature of the project. 542.3 Commission Review: In reviewing the project, the Planning Commission shall be concerned with the location, scale and design of the proposed project, and shall determine that: a. The need for such a shopping center exists at the proposed location, as indicated by the applicant by market studies or other information, that the location of the proposed center conforms generally with the development pattern outlined in the Comprehensive Development Plan. b. The development plan provides for a shopping center with one or more groups of buildings of related and harmonious design, together with adequate parking spaces, access drives, and landscaped areas that meet the design standards outlined in Article VI, which will not adversely affect surrounding development. c. The uses proposed are appropriate for a neighborhood or community shopping center. SECTION 543. PLANNED INDUSTRIAL DISTRICT (IP) 543.1 Purpose: The Planned Industrial District is established to encourage planned industrial developments or “industrial parks.” Planned Industrial Districts are intended to accommodate a wide range of manufacturing, processing, research and development, office and other uses that can be built and operated with a minimum of noise, smoke, smell, and other nuisance, and can be designed to high aesthetic standards. Because of the lack of nuisances and the higher design standards, a Planned Industrial District can be mapped in locations where other industrial districts may be undesirable. 543.2 Special Requirements: In addition to meeting the general requirements outlined in Section 540.2, an application for a Planned Industrial District shall meet the following conditions. 543.21 Shape and Size: The site shall be of a size and shape suitable for development of Planned Industrial District. The minimum size of a Planned Industrial District shall be ten (10) acres. 91 543.22 Area and Coverage: Within the IP District, each main building, together with its accessory buildings, shall be located on a lot having an area of at least two acres. Lot coverage of all buildings shall not exceed twenty-five (25) percent. 543.23 Yards: In an IP District, no principal or accessory building, parking area, or loading area shall be located a. less than fifty (50) feet from any lot line, b. less than two hundred (200) feet from any Residential District line or less than one hundred (100) feet from any Business District line, c. less than the following minimum distance from an existing or proposed street right-of-way line: 1. Freeway or parkway 2. Major highway 200 feet 150 feet 543.24 Landscaping: The yards established above shall be landscaped in accordance with a plan approved by the Planning Commission. Parking areas, except for visitor parking, shall not be located in the yard space. 543.3 Permitted Uses: Uses permitted in the IP District are indicated in Section 560 Table of Zoning District Uses. Determination of whether a use is allowed in the IP District shall be made by the Building Inspector and his decision may be appealed to the Board of Zoning Appeals. 543.4 Commission Review: In reviewing the proposed development, the Planning Commission shall be concerned with the location, scale, and design of the proposed development, and shall determine that: a. The proposed plan provides an attractive development that will not adversely affect surrounding areas. b. Direct access is provided to the development from a major highway, or along an industrial access road, and that traffic generated by the development will not have to pass through adjacent residential streets. SECTION 550. SUPPLEMENTAL DISTRICTS 550.1 General Purpose: The residential, business, and industrial districts established by this Ordinance encompass the entire city and sections of the surrounding area. There are in the Martinsburg area certain fixed features or areas that require special regulations. Supplemental zoning districts have been created to provide for the special development controls needed for these specific locations. Supplemental zoning districts overlap and supplement the requirements of the other districts in the locations where they overlap. SECTION 551. HIGHWAY INTERCHANGE DISTRICT (HI) 551.1 Purpose: Interstate Highway 81 extends the length of Berkeley County and skirts the western edge of the City of Martinsburg. The increased accessibility and ease of movement provided by this highway are major factors shaping the future development pattern. Access to the highway is controlled, being 92 permitted only at widely spaced, grade-separated interchanges. The major impact of the highway, in terms of traffic movements and land development, is therefore, concentrated at the interchange points. The Highway Interchange District is established to provide special development controls needed in interchange areas. 551.2 Location of Highway Interchange Districts: Highway Interchange Districts are to be established around all existing and future interchanges on Interstate Highway 81 and around any other future interchanges where the Planning Commission and the City Council determine that special interchange controls are necessary. Highway Interchange Districts shall generally extend in a circle one half mile from the center of the interchange. Highway Interchange District boundaries for each interchange are indicated on the zoning map. 551.3 Interchange Area Plans: The Martinsburg Planning Commission has outlined general policies for future development of interchange areas in the Comprehensive Development Plan. To provide a more detailed guide for review of development proposals within Interchange Districts, the Planning Commission shall undertake more detailed site studies of each interchange area. These plans shall be prepared in coordination with the West Virginia State Road Commission, the Berkeley County Planning Commission, the Eastern Panhandle Soil Conservation Districts, and other interested public and private organizations. 551.4 Site Review Criteria for Interchange Areas: All development within Interchange Districts requires site plan review and approval by the Planning Commission. In addition to the site plan review requirements outlined in Section 701, the Planning Commission shall consider the following special purposes in interchange districts. 551.41 Interchange Access: First priority shall be given to insuring safe and uncongested access to the limited access highway from connecting roads. Future as well as present traffic volumes shall be considered. The most effective way to avoid congestion on and near the highway approach ramps is to restrict access from adjoining land for some distance from the ends of the ramp. In the site plan review process, the Planning Commission shall consider the location and spacing of driveways and shall not permit driveway entrances where they will interfere with traffic movements onto and off of the limited access highway. Frontage roads may be required where necessary. 551.42 Large-Scale Development: The Planning Commission shall encourage largescale, modern development of the entire interchange area, in place of development of a series of small, unrelated parcels along interchange approach roads. 551.43 Architectural and Landscape Design: The Interstate interchanges provide new “gateways” to Martinsburg. The Planning Commission shall give special attention to the visual appearance of the interchange area, as seen by motorists on the Interstate highway and on the approach roads. Site plan review shall consider the design and arrangement of buildings and accessory 93 structures, the graphic design of directional, business, and identification signs, and the landscaping of the interchange area. The Planning Commission may establish special building line setbacks and other requirements in interchange districts. 551.5 Special Provisions: Uses permitted in the interchange districts are the same as are permitted in residential, business, and industrial districts and these districts shall be mapped, where appropriate, within the interchange districts. The interchange district shall overlap the other mapped districts. Site plan review shall be required for all development within the interchange districts. 551.51 Design of Residential Areas: Any new residential development within a Highway Interchange District shall not front directly on an interchange access road, but be connected to the access road only by service roads. 551.52 Increased Area, Frontage and Setback Requirements: Regardless of other design provisions of this ordinance, no business or industrial development fronting on an interchange access road within a Highway Interchange District shall have a frontage of less than two hundred (200) feet, an area of less than one (1) acre or a setback of less than fifty (50) feet. SECTION 552. HISTORIC PRESERVATION DISTRICT (HP) 552.1 Purpose: Within Martinsburg there are various buildings, sites, monuments, structures, and areas that have significant historical importance as landmarks in the development of the city, state, and nation. The Historic Preservation District is established to provide a framework for protecting and preserving these historical buildings and areas. The procedure for establishing and administering a historic district or districts is outlined in Article X. SECTION 553. FLOOD PLAIN DISTRICT (FP) 553.1 Flood Plain District (FP) a. The various Flood Plain Districts shall include areas subject to inundation by the waters of the one hundred (100) year flood. The basis for the delineation of these districts shall be the Flood Insurance Study for the City of Martinsburg prepared by the Federal Insurance Administration. b. The Flood Plain Districts described above shall be overlays to the existing underlying districts as shown on the Official Zoning Map, and as such, the provisions for the Flood Plain Districts shall be the Flood Insurance Study for the City of Martinsburg prepared by the Federal Insurance Administration. c. Where there happens to be any conflict between the provisions or requirements of any of the Flood Plain Districts and those of any underlying district the more restrictive provisions and/or those pertaining to the Flood Plain Districts shall apply. 94 d. In the event any provisions concerning a Flood Plain District is declared inapplicable, as a result of any legislative or administrative actions or judicial discretion, the basic underlying district provision shall remain applicable. 553.2 Zoning Map The boundaries of the Flood Plain Districts are established as part of the Official Zoning Map of the City which is declared to be part of this Ordinance and which shall be kept on file at the City’s offices. 553.3 District Boundary Changes The delineation of any of the Flood Plain Districts may be revised by the governing body where natural or manmade changes have occurred and/or more detailed studies conducted or undertaken by the U.S. Army Corps of Engineers or other qualified agency or individual documents the notification for such change. However, prior to any such change, approval must be obtained from the Federal Insurance Administration (FIA). 553.4 Interpretation of District Boundaries Initial interpretation of the boundaries of the Flood Plain Districts shall be made by the Building Inspector. Should a dispute arise concerning the boundaries of any of the Districts, the Board of Appeals shall make the necessary determination. The person questioning or contesting the location of the district boundary shall be given a reasonable opportunity to present his case and to submit his own technical evidence if he so desires. 553.5 District Provisions Permitted Uses: The following uses and no others are permitted in the Flood Plain District, provided said uses cause no increase in the one hundred (100) year flood level within the flood way as designated in the City’s Flood Insurance Study. a. Cultivation and harvesting of crops (except timber) according to the recognized soil conservation practices, which shall in no case cause alluvial deposits to build up in water courses or cause accelerated erosion of the flood plain. b. Pasture and grazing land according to recognized soil conservation practices. c. Outdoor plant nursery and orchard. d. Game farm, fish hatchery (excluding structures) and fishing reserve. e. Recreation uses such as: park, day camp, picnic grove, golf course, fishing and boating club, excluding structures. f. Wildlife sanctuary, woodland preserves and arboretum. 95 g. Sealed public water supply wells and public water underground distribution systems, provided the same are flood-proofed. h. Underground utility transmission lines, excluding substations or similar structures, provided the same are flood-proofed. i. Front, side, or rear yards, and lot area for any district, provided such yards are not to be used for onsite sewage disposal systems. Land in the Flood Plain District shall qualify in computing lot areas and the minimum zoning district area if such is specified in the City’s Zoning Ordinance, or other code. j. Pervious parking lots where parking lots are required by the regulations for the Zoning District applicable to the lot without consideration of this Ordinance, and where no alternate plan is feasible. 553.6 Additional Provisions for Activities Within the Flood Plain District a. The following activities are prohibited: 1. The large scale or unnecessary destruction of flora and timber. 2. Storage of materials that can float, are toxic (to human, animals, or vegetables), or explosives. 3. Junk yards. 4. Buildings, including mobile homes whether for residential or nonresidential use. b. No grading of land or depositing of fill shall be permitted in a Flood Plain District except where necessary to accomplish one of the permitted or special uses, no alternate plan is feasible, and no increase in the 100Year Flood Elevation in the designated floodway will occur. c. No alteration or relocation of a water course, in riverine situations, shall be permitted without prior notice to all adjacent municipalities and the state coordinating office and the Federal Insurance Administration, and without establishment to the City’s satisfaction that the flood carrying capacity within the altered or relocated portion of any water course is maintained. d. The Building Inspector shall review the permit application prior to the issuance of any permit to determine if all other necessary governmental permits as required by federal and state laws have been obtained. 553.7 Uses by Special Exception: The following uses may be permitted in the Flood Plain District by the granting of a Special Exception by the Board of Zoning Appeals: a. Sanitary sewers, storm sewers, outlet installations for sewage treatment plants, sewage pumping stations, if flood proofed, with the approval and certification of the City Engineer and appropriate sewer authorities that said station will present no hazard to the community if subject to a one hundred year flood. 96 b. Above-ground utility transmission lines, provided the same are flood proofed and excluding substations. c. Dams, culverts and bridges approved by the Department of Natural Resources, Division of Water Resources. d. Paved roads, driveways and temporary parking lots. e. Impoundment basins. f. Other uses similar to the above that are in compliance with the objectives of this Ordinance. The application for any of the uses in this section shall be accompanied by the following: 1. Detailed engineering studies indicating the effects on drainage and streams on all adjacent properties as well as the property in question. Such studies shall be conducted by a Registered Professional Engineer. 2. A statement explaining why the objectives of the Flood Plain District would not be unreasonably compromised by permitting the proposed use, and the affirmative benefits resulting to the public from the proposed use. In determining whether a Special Exception should be granted the Board of Zoning Appeals shall be guided and governed by the objectives of this Ordinance as set forth in Section 425, the effect of the use upon the cross sectional profile of the streams and flood plains, the effect of the use on other properties and the effect of the use on the watershed. 3. A fee in the amount of $600.00 shall accompany each application for a use as townhouses, apartments, commercial or industrial uses by Special Exception. Other residential uses not listed are $400.00. 553.8 Standards for Approval of Uses by Special Exception or For Variances: Requests for Special Exceptions or Variances shall be considered by the Board of Zoning Appeals in accordance with the following procedures: a. An affirmative decision shall be not issued by the Board for any development within the floodway if any increase in the elevation of the One Hundred (100) Year Flood would result. b. Affirmative decisions shall only be issued by the Board upon (i) a showing of good and sufficient cause, (ii) a determination that failure to grant the appeal would result in exceptional hardship to the applicant and, (iii) a determination that the granting of an appeal will not result in increased flood heights, additional threats to public safety, extraordinary 97 public expense, create nuisances, cause fraud on or victimization of the public, or conflict with existing local laws or ordinances. c. Affirmative decisions shall only be issued upon determination that it is the minimum necessary, considering the flood hazard to afford relief. d. The Board shall notify the applicant in writing over the signature of community officials that (i) the issuance of a decision to allow construction of a structure below the One Hundred (100) Year Flood Elevation will result in increased premium rates for Flood Insurance, (ii) such construction increases the risks to life and property. Such notification shall be maintained with a record of all decisions as required in paragraph e of this section, and e. The Board shall (i) maintain a record of all decisions including justification for their issuance and (ii) report such decisions issued in its Annual Report submitted to the Federal Insurance Administration. f. Any structure permitted by Special Exception or Variance shall include flood-proofing measures according to the following criteria: 1. All buildings shall be: a) firmly anchored to prevent flotation, collapse, or lateral movement. The Building Inspector shall require the applicant to submit the written opinion of a registered professional engineer, that the proposed structural design meets this standard, and to provide engineering data supporting the opinion. The Building Inspector will take this written opinion into consideration in his decision concerning the adequacy of the method of anchoring. b) constructed so as to prevent the entrance of floodwaters into the water supply and waste treatment systems as well as other utility and facility systems: 2. All new buildings shall have the lowest floor (including basement) elevated to one (1) foot above the 100 Year Flood Elevation. A record of the lowest floor (including basement) shall be furnished to the Building Inspector and maintained by him as shall the 100 Year Flood Elevation. 553.9 Existing Structures: When permitted as a Special Exception by the Board, any structure within the Flood Plain District at the time of the enactment of this Ordinance may be altered or extended, provided that: a. The alteration or extension conforms with all applicable regulations of the Flood Plain District. b. All substantially improved buildings shall be constructed so that: 1. Residential buildings shall have the lowest floor (including basement) elevated to one (1) foot above the 100 Year Flood Elevation. Any portion of the building not elevated to one (1) foot above the 100 Year Flood Elevation shall meet the requirements of No. 2 below. 2. Nonresidential buildings shall have the lowest floor (including basement) flood proofed according to the classifications W1-W4 of 98 the publication, Flood Proofing Regulations, U.S. Army Corps of Engineers, pamphlet Ep 11652314. When meeting the W1 or W2 classification, building shall be flood proofed to an elevation of one (1) foot above the 100 Year Flood Elevation. 99 SECTION 560. TABLE OF ZONING DISTRICT USES Uses permitted in each zoning district are listed in tabular form in the accompanying table, along with an indication of the type of development review required. Some uses are grouped together in the table, such as “light industrial uses.” The uses included in such a grouping are defined in more detail under the appropriate zoning district. In compiling this list, an attempt has been made to list the uses, either individually or collectively, that are likely to occur in the Martinsburg area, but listing of every conceivable use is not practical. In the case of an application for a use not listed in the table, or when there is uncertainty whether a certain use is allowed in a zoning district, the Building Inspector shall determine in which district the use is allowed and the type of development review required. In making his determination in such a case, the Building Inspector shall be guided by the purpose of each zoning district, and the characteristics of the proposed use in relation to the characteristics of uses allowed in the district. SECTION 560. TABLE OF ZONING DISTRICT USES P—Permitted subject to Design Regulations S—Permitted subject to Site Plan Review E—Permitted as a Special Exception T—Permitted as a Temporary Special Exception X—Permitted as a Temporary Use 100 Residential Use RR NATURAL RESOURCE USE Agriculture Agriculture Uses P Business Industrial Planned RS RUA RUB RT RML RMM BL BS BD BC BH IL IG IE RP BP IP P P P P P P P P P P P P P P P P P E E E E E E E S E S S S E E E E E E S S E S E S S E E E E E P T P T P T P T P T P T P T P T P T E E E E S E E E E E E E Commercial Greenhouses and Nurseries Storage Vacation Farm E E P E E E E Forestry Forestry Sawmill P T P T P T P T P T P T P T P T P T Mineral Extraction Mineral Extraction E E E E E E E E E Mineral Processing and Related Use S Mineral-based Manufacturing S RESIDENTIAL USES Single-Family Detached Dwelling P P P P P P P P P Single-Family Semidetached Dwelling P P P P P P P Two-Family Dwelling P P P P P P P Townhouse Dwelling E S S S E S Multiple-Family Dwelling S S S S S S S E Multiple-Family Group Development Mobile Home Park E E E S E E S E S E Seminary or Convent E E E E E E E E E E E E Agricultural Labor Camp Boarding House Emergency Shelter Group Home Lodging House Motel, Hotel Tourist Camp Tourist Home Transitional Housing E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E S E E E S E E S E S E E E S S S E S E E E S S S E Travel Trailer Park E E E E E Vacation Lodge or Camp E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E E BUSINESS USES 101 E Residential Use Retail Trade Antique Shop Apparel Store RR E Appliance Sales and Service Auction House Bakery, Retail RS RUA RUB RT Business RML RMM Industrial BS BD BC BH S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S Boat Sales and Services IL IG IE Planned BL RP BP Books and Magazine Camera Shop Department Store S S S S S S S S S S S S S Discount Store Drug Store Dry Goods Store S S S S S S S S S S S S S S S S S S S Farm Equipment Sales Feed and Grain Sales Florist S S S S S S S S S Food and Drink Sales Store S S S S S Furniture Sales and Repair Garden Center Gift Shop Hardware Store Hobby Shop S S S S S S S S S S S S S S S S S S S S S S S S S Household Furnishings Jewelry Store Lumberyard Mobile Home Sales S S S S S S E S S S E S S S Music and Record Store Newsstand Office Equipment Paint Store Pawn Shop Radio and TV Sales Shoe Store Specialty Shop Souvenir Shop S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S Sporting Goods Store S S S S S Stone Monument Sales Tobacco Store Toy Store S S S S S S S S S S S S S S E S S 102 IP Residential Use RR RS RUA RUB RT Business RML RMM Variety Store BL S BS Industrial BD S BC S BH S IL IG IE Planned RP BP S Vending Machines, largescale S S S S S Watch Sales and Repair S S S S S T T T T S S S S S S S S S Wayside Stand, Temporary T T T T T T T T T T T T Business and Personal Services Advertising Agency S Bank, Building and Loan Association S Barber and Beauty Shop S S S S S Broadcasting Studio Bus Depot S S S S S S S S S S S S S S E S S S S E S Carpentry, Electrical, Plumbing, Sheet Metal, Printing, Upholstering and Similar Services Commercial or Business School S S S S S S Dance or Music Studio S S S S S S Dry Cleaning, Retail S S S S S Employment Agency Finance Office Food Locker Film Processing Fortune Teller Funeral Home Health Club Laundry Retail Laundromat Medical Clinic Office, Business Office, Professional S S S S S E S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S S E E E E E E E E E E E E E E S S S S E S S S S S Outdoor Advertising Structure Photography Studio S S S S S Private Club, Commercial Restaurant E S S S S S S Self-Storage Shoe and Luggage Repair S S S S S S E S S S S 103 IP T S S Residential Use RR RS RUA RUB RT Business RML RMM Tailor, Dressmaker Tavern BL S S BS S S BD S S Wholesaling and Processing Bakery, Nonretail Bottling Plant Building Materials Storage Yard Excluding Asphalt or Concrete Mixing Industrial BH S S IL IG S S S S S S S S S S E E S S S S S Including Asphalt or Concrete Mixing Bulk Materials Storage Carpet or Rug Cleaning Catering Service Coal Yard S Contractors Storage Yard T Contractors Temporary Buildings X X X X X X X X S X S X IE Planned BC S S RP BP S S IP E E S S S S S S S S S S S S S S E E S S X X X X Fuel Oil Bulk Storage Yard X X X X S Laboratory, Medical or Dental S S S S S S S Laboratory, Research, Experimental or Testing S S S S S S S Laundry and Dry Cleaning, Nonretail S S Machinery Storage Yard E S S Motor-Rail Freight Terminal E S S S S Stone Monuments Processing S S S Warehouse, Completely Enclosed E S S S Warehouse, with Open Storage Welding Shop E S S S S S Wholesale, Enclosed Building E S S S S S Wholesale, with Open Storage Automotive and Related Services 104 Residential Use RR RS RUA RUB RT Business RML RMM Accessory Sales, No Installation Accessory Sales, Installation Driving School Laundry (Carwash) Parking Garage or Lot Rental E E E E E E E BL BS Showroom, No Repairs Storage S S S S S E S E S E S S E S S E E E S E S S S S S S S S S E E S S S S S S S S E E E S S S S E E S E S E S E E E Truck Service Center Animal Sales and Service Animal Hospital Animal Ranch (Fur Bearing) Kennel Pet Store Riding Stable, Commercial Veterinarian Commercial Amusements Amusement Park Billiard Parlor Bowling Alley Carnival, Circus E X E X Children's Amusement Center Commercial Sports Stadium or Arena Dance Hall Go Kart Race Track Golf, Driving Range Golf Miniature Race Track Skating Rink Swimming Pool, Commercial Theatre, Drive-In Theatre, Indoor Theatre, Summer or Tent INDUSTRIAL USE E T E E E X X X X X E E E E E E E E E E S S X E S S X E E E E S E S E S E X E T T T E T X E E T BH E E E E S E S E E E S E E S E E E IL IG IE Planned BC Repairs (Body Shop) Sales, New and Used Service Station Industrial BD RP E BP S IP S S E E E E E E X X X E E E T T E T T T T X X X X E E T E T 105 Residential Use RR RS RUA RUB RT Business RML RMM BL BS BD BC Industrial BH Light Industrial Use General Industrial Use Salvage Yard E IL S IG S S S S IE Planned RP BP IP S E E S PUBLIC AND SEMIPUBLIC USES Open Space Use Airport or Heliport Cemetery Country Club Fairgrounds Game Refuge Golf Course E E E E P E Park or Recreation Area Shooting Range E E E E S S S S S S E S S S S E E E E E E E E E E E P E P E P E P E P E P E S T S T S S S S S S E E E E E E E E Public and Institutional Uses Arena, Stadium E Church S Community Center S Cultural Facility S E S S S E S S S E S S S E S S S E S S S E S S S E S S S E S S S E S S S E S S S E S S S Fire and Police Station S S S S S S S S S S S S Historic Buildings, Shrines, Monuments S S S S S S S S S S S S Medical Care Institution Hospital Nursing Home Sanitarium Penal Institution Private Club, Social Public Buildings Schools E E E E E S E E E E E E E E E E E E E E E E E E E E E E E S E S E S E S E S E S S S S S S S S S S S College or University E E E E E E E E S S Elementary or High School Nursery School Private School S E E S E E S E E S E E S S E E S E E S E E S E E S E E E E Tent or Temporary Meeting Public Utility Uses Public Dump X X X X X X X X X X X S S S S E S S S E S S S S S S S S S E S S S S 106218Swimming Pool, Community Public Utility Use and Structures S S E E S E X X E E E E E E E E E E E E S S E E X X X E E E S S 106 X X ARTICLE VI DESIGN REGULATIONS 107 Ordinance No. 95-29 AN ORDINANCE TO AMEND THE TEXT OF THE CITY OF MARTINSBURG ZONING ORDINANCE AT ARTICLE VI. SECTION 601.22 TO ESTABLISH MINIMUM SETBACK REQUIREMENTS FOR ACCESSORY STRUCTURES AND TO ALLOW STORAGE BUILDINGS, TOOL SHEDS, AND OTHER SIMILAR STRUCTURE, NOT ERECTED ON A PERMANENT FOUNDATION AND HAVING AN AREA OF 50 SQUARE FEET OR LESS TO ALIGN WITH AN EXISTING DWELLING IN A RESIDENTIAL DISTRICT. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MARTINSBURG, WEST VIRGINIA: That Section 601.22 of Article VI of the Martinsburg Zoning Ordinance shall be amended to include the following language: Accessory structures shall be setback a minimum distance of five (5) feet from side property lines and five (5) feet from rear property lines. No accessory structure shall be located less than five feet from any other building on the lot. Storage buildings, tool sheds, and other similar structures having an area of fifty (50) square feet or less may be aligned with an existing dwelling in a residential district. Accessory structures fifty (50) square feet or less in area shall be erected on a permanent foundation. BE IT FURTHER ORDAINED THIS ORDINANCE SHALL TAKE EFFECT UPON THE DATE OF PASSAGE: INTRODUCED: ADOPTED: August 10, 1995 September 14, 1995 THE CITY OF MARTINSBURG, WEST VIRGINIA Attest: Earnest L. Sparks, Mayor City Recorder 108 ARTICLE VI. DESIGN REGULATIONS SECTION 600. PURPOSE This article outlines additional design requirements for certain uses and structures, beyond those requirements established in the general regulations. Primary emphasis is on outlining additional design requirements for uses requiring site plan review or allowed only as a Special Exception. If no additional requirements are listed in this article, the Planning Commission and the Board of Zoning Appeals shall be guided by the general site plan review and Special Exception guidelines outlined in Article VII. SECTION 601. ACCESSORY STRUCTURES AND USE 601.1 Legislative Intent: Accessory structures and uses, of a nature customarily incidental and subordinate to the principal use or structure, are permitted as regulated in each district as long as such accessory activities are not in conflict with other uses permitted in each district 601.2 Accessory Structures: Accessory structures include garages, tool sheds, storage buildings, barns, some signs, (as outlined in Section 440), and other similar structures. A garage or similar building having any part of a wall in common with a dwelling is considered part of the main building and not an accessory building. A mobile home is not considered an accessory structure. 601.21 Height and Bulk Requirements: Accessory structures shall be subject to the same height area requirements as principal structures. The area of accessory structures shall be included in calculations of lot coverage. 601.22 Location: No accessory building shall be erected in any required yard, other than the rear yard, except that, where problems of excessive slope prevent placing a garage back of the front building line, the Board of Appeals may allow construction of a garage in the front yard space. No accessory building shall be erected less than five (5) feet from the rear lot line or less than five (5) feet from any other building on the lot. 601.3 Accessory Uses 601.31 Accessory Uses in Residential Districts: Customary accessory uses are permitted in residential districts, including the following: a. Accommodations for bona fide servants and guests; b. Keeping of domestic animals, but not for sale or hire. A commercial stable or kennel is not an accessory use; c. Recreation facilities, such as swimming pools and tennis courts, located on residential zoning lots, provided that the use of such facilities shall be restricted to occupants of the principal use and guests for whom no admission or membership fees are charged; 109 d. Domestic or agricultural storage in a barn, shed, tool shed or similar building or other structure; e. Home occupations; f. Professional offices that are in the same building in which the tenant is an occupant and which employ no more than two assistants, and which do not change the residential character and appearance of such dwelling; g. The renting of rooms to no more than two (2) persons by a resident family. Table board may or may not be provided; h. Off-street parking space, for residents and guests. Parking for commercial vehicles, other than a pick-up or panel truck is not permitted as an accessory use. Storage of junked automobile(s) or other salvaged materials is not an accessory use; i. Accessory signs (not to include outdoor advertising structures or window display of merchandise); and j. Accessory radio or television aerials. 601.32 Accessory Use in Commercial and Industrial Districts: Customary accessory uses are permitted in commercial and industrial districts, including the following: a. Off-street parking and loading space; b. Accessory business signs; c. Vending machines (normal size); d. Residential accommodations for the bona fide owners or operators of commercial uses, and for bona fide watchmen or caretakers and their families; e. In connection with commercial or manufacturing uses, the storage of goods normally carried in stock, used in, or produced by such uses, unless the storage is expressly prohibited under the applicable district regulations. The floor area used for such accessory storage shall be included in the maximum floor area permitted for specified uses set forth in the districts. f. Incidental repair facilities, unless expressly prohibited under applicable district regulations. 601.4 Determination of Accessory Uses and Structures: In cases involving an accessory use or structure not listed above, the Building Inspector shall determine whether it is permitted. 110 SECTION 602. TEMPORARY STRUCTURES AND USES 602.1 Temporary Structures and Uses: The Building Inspector may issue temporary use permits for carnivals, circuses, tent-revival meetings, and similar activities. Before issuing a temporary permit, the Building Inspector shall determine that the site is adequate for the proposed activity, and that the proposed use, including related traffic and parking, will not be detrimental to the surrounding area. Temporary dinners, sales, and similar activities by school, church, or civic groups shall not require a permit. 602.2 Temporary Special Exceptions: The Board of Zoning Appeals may grant a temporary Special Exception for the uses so indicated in Section 560. A temporary Special Exception permit shall not be valid for longer than two years, but may be renewed. 602.21 Temporary Wayside Stands: Temporary wayside stands for the sale of farm products grown or produced on the premises are permitted as temporary Special Exceptions, for a period not to exceed six months. The wayside stand and display of all goods shall be located at least twenty-five (25) feet from the edge of the roadway. 602.22 Contractors Temporary Structures: In any district, temporary structures in connection with a construction project are allowed as a temporary use. Such buildings shall be equipped with sanitary facilities unless otherwise available on or near the premises, and, to the extent possible, shall comply with the yard requirements of the zoning district. SECTION 610. NATURAL RESOURCE USES SECTION 611. AGRICULTURAL 611.1 Agricultural Uses: Agricultural uses are permitted in all zoning districts, except that, farm animals (hogs, swine, cows, bulls, cattle, goats, sheep, mules, ponies, or horses) shall not be kept on a tract of less than five (5) acres, and in a residential district, no new building for the enclosure or feeding of animals shall be located closer than two hundred (200) feet to a residential lot. SECTION 612. FORESTRY 612.1 Timbering is permitted in all districts. 612.2 Sawmills: The Board may permit a sawmill in the districts indicated, where such use will not be detrimental to surrounding development, as a temporary Special Exception. No saw or other machinery shall be less than fifty (50) feet from any lot or street line. Power saws and other machinery shall be secured against tampering. After the removal and cutting of timber, all snags and debris shall be removed and the premises left in a sightly condition. 111 SECTION 613. MINERAL EXTRACTION 613.1 Mineral Extraction and Processing: Mineral Extraction is permitted subject to site plan review in the IE District. In all other districts, removal of top soil, sand, gravel, clay, limestone or other mineral shall require a Special Exception, subject to the following conditions: a. The extraction and removal of natural material or deposits from the site shall not be noxious, offensive, or otherwise objectionable by reason of dust, smoke, noise, or vibration. b. The land areas exposed by the extraction and removal of natural materials or deposits shall be submitted, showing the existing exposed ground elevations of the site, of the land immediately adjacent thereto, and of all bounding streets and roads. Exposed land area shall not have a slope greater than three (3) to one (1). All applications for Special Exceptions shall be accompanied by a map or plat, showing the area proposed to be included in the pit or quarry, and an estimate of the time required for the removal of the material. Significant deviation from the excavation plan shall be cause for cancellation of the Special Exception. c. Special Exceptions for such mineral extraction shall be limited to a period not exceeding five (5) years. d. Excavation shall not extend closer than one hundred (100) feet to a public street. e. Appropriate fencing may be required. Before granting a Special Exception for mineral extraction, the Board shall determine that the proposed excavation of natural materials will not be detrimental to existing or future development in the surrounding area. SECTION 620. RESIDENTIAL USE Most new development in the Martinsburg area will be for residential use. All new residential development shall meet the lot, yard, and building requirements outlined in Article IV, and any additional design requirements outlined in the following sections. SECTION 621 ONE- AND TWO-FAMILY DWELLINGS 621.1 Single-Family Detached Dwelling: Permitted in all residential districts. Lot sizes in a cluster subdivision may be reduced in accordance with Section 626. A singlefamily detached dwelling is permitted in the BL, BD, and BC Districts as a Special Exception, and in such cases shall conform to the lot area, yard, and building requirements for single-family detached dwellings in the RUB District. 112 621.2 Single-Family Semidetached Dwelling: Permitted in the RUA, RUB, RML, and RMM Districts. A single-family semidetached dwelling is permitted in the BL, BD, and BC Districts as a Special Exception, and in such cases shall conform to the lot area, yard, and building requirements for single-family detached dwellings in the RUB District. 621.3 Two-Family Dwellings: Permitted in the RUA, RUB, RML, and RMM Districts. Conversion of an existing dwelling into two dwelling units shall be allowed only in districts where two-family dwellings are permitted and only if the lot area requirements are met. A two-family dwelling is permitted in the BL, BD, and BC Districts as a Special Exception, and in such cases shall conform to the lot area, yard, and building requirements for two-family dwellings in the RUB District. SECTION 622. PATIO HOUSE DEVELOPMENT The patio house, sometimes called a court house, is a form of residential development in which the dwelling and the remaining area of the lot are planned and constructed as a unit. All or most of the lot is enclosed with a wall sufficiently high enough to ensure privacy, converting yard areas into “outdoor rooms.” Offstreet parking area, open or enclosed, is located in what is normally the front yard. The dwelling may be a single-family detached, semi-detached, or attached (townhouse) dwelling. Patio house developments require Site Plan review. With coordinated design of the house and lot, the entire lot may be enclosed and yard requirements varied or eliminated. The patio house form of development is permitted for townhouse developments and in planned residential developments, both requiring Site Plan review. In other residential districts, patio house development is permitted, for the type of dwellings allowed in that district, as a Special Exception requiring Site Plan review by the Planning Commission. In permitting patio house developments as a Special Exception, the Planning Commission and the Board of Appeals shall determine that the integrated design of house and lot permits variation of yard requirements, that the patio house form of development will not be detrimental to surrounding development, and that visibility is maintained at street intersections. SECTION 623. TOWNHOUSE DEVELOPMENT Townhouses are to be allowed only in planned townhouse developments. Townhouse developments are permitted in the RT, RML, and RMM Districts. 623.1 Net Land Lot Area: No townhouse development is to have an area of less than five acres, except under conditions cited in Section 515.21. There shall be at least 3,500 square feet of net land area per townhouse, and no more than ten (10) townhouses per acre. Each townhouse lot shall have a minimum of 1,600 square feet. The difference in lot size and net land area per townhouse shall be allocated to open space common areas. 113 623.2 Tract Frontage: Each interior parcel or tract used for a group of townhouses shall have a width of at least one hundred (100) feet and each corner parcel or tract shall have a width of at least one hundred and twenty (120) feet. 623.3 Townhouse Lot Width: The minimum width of a townhouse lot shall be sixteen (16) feet. Each lot on the end of a row of townhouses shall have an additional width necessary for the required side yard. 623.4 Length of Townhouse Row: There shall be no more than eight (8) nor less than three (3) townhouses in a row. 623.5 Yards: 623.51 Yard, Front: Each townhouse shall have a front yard of twenty-five (25) feet. The townhouse development is designed for this feature. Townhouses may be arranged to face onto a common open space. Such a space shall not be less than fifty (50) feet in width and shall be arranged to permit access for emergency vehicles. With such an arrangement, the front yard requirement may be reduced to ten (10) feet. 623.52 Yard, Side: A side yard at least ten (10) feet in width shall be provided at each end of every row of townhouses. When the lot adjoining the corner lot along the rear lot line fronts on the side street of the corner lot, the width of the corner lot shall be increased to provide a side yard equal to the adjoining front yards. 623.53 Yard, Rear: Each townhouse shall have a rear yard at least twenty (20) feet in depth. An accessory building shall be located only in a rear yard and shall occupy not more than twenty five (25) percent of the rear yard area and shall be located not less than five (5) feet from any alley or rear service street line. 623.54 Access to Rear Yards: Access shall be provided to rear yards through a rear service street not less than twenty (20) feet in width, or by providing a rear open space common area, arranged to permit access for emergency vehicles. 623.6 Access Drives and Off-Street Parking: Interior access drives not dedicated for public use shall be improved to a standard approved by the Planning Commission. Off-street parking space shall be provided at the rate of 1.5 spaces per townhouse. In a subdivision of townhouse lots, it will not be necessary that off-street parking be provided on a specific lot so long as the required number of parking spaces are provided in the subdivision for the number of lots to be served. No parking area shall be more than two hundred (200) feet from the townhouse lot it is to serve. Provisions for maintenance charges shall be made for such off-street parking spaces through recorded land covenants and conveyance to a Home Association with automatic and compulsory membership. 623.7 Maintenance of Common Land and Facilities: If the townhouse development provides for common area, property, and/or facilities, created under recorded land agreements through which each lot owner in a described land area is automatically a member and through which each lot is automatically subject to a charge for a proportionate share of common property maintenance. The recorded covenants shall bind each lot to ensure payment of all assessments, including taxes, which may be necessary to maintain the common areas, 114 property, and/or facilities and shall also provide for a personal money judgment procedure against each lot owner to meet assessment charges, including taxes that may be necessary to maintain such common property and/or facilities. SECTION 624. MULTIPLE-FAMILY DWELLINGS 624.1 Multiple-Family Dwellings: A single building containing three or more dwelling units (an apartment building) is permitted in the RUB, RML, and RMM districts, subject to the lot, yard and bulk requirements in Article IV. A multiple-family dwelling is permitted in the BL, BD, and BC districts as a Special Exception, and in such cases shall conform to the lot area, yard, and building requirements for a multiple-family dwelling in the RUB District. 624.2. Multiple-Family Dwelling Units in Combination with Business Use: One or more multiple-family dwelling units in combination with a business use, on the same level or over the business use, are permitted by right in the Service District (BS) and as a Special Exception in the BL, BD, and BC districts. Separate access from the street to the dwelling units shall be provided. Off-street parking space shall be provided for each dwelling unit in the BL and BC Districts. Before granting a Special Exception for dwelling units in combination with a business use, the Board of Appeals shall determine that the space proposed to be constructed or converted is suitable, or can be made suitable, for residential use. The Board shall consider the adequacy of floor area, arrangement of rooms, locating provisions and condition of heat and utilities, structural condition of the building, fire safety, availability of light and air, and access. 624.3 Multiple-Family Group Developments: A multiple-family group development (an apartment project) is permitted in the RUB, RML and RMM districts. 624.31 Net Lot Area: The parcel of land used for a Multiple-Family Group Development shall be under one ownership and shall have an area of at least 20,000 square feet and a lot frontage of at least 100 feet. When so used, such a parcel of land shall be considered to be one lot for the purpose of these regulations. MultipleFamily Group Developments shall be governed by the lot, yard, and bulk requirements in Article IV. The yard requirements shall apply to distance from private interior streets within the project as well as distance from surrounding public streets. 624.32 Width and Depth of Courts: In the case of a building not more than forty (40) feet in height, the minimum width of an outer court, bounded by walls on three sides, shall be forty (40) feet. When the building height exceeds forty (40) feet, the minimum court width shall be increased by one foot for each additional foot of building height. The depth of an outer court, bounded by walls on three sides, shall be not more than one and one half times the width and shall not exceed one hundred (100) feet. When an outer court is partially enclosed by projections, the sum of the projections shall not exceed twenty-five (25) percent of the greatest required court width. 624.33 Distance Between Multiple Group Dwellings: In the case of multiple group buildings not more than forty (40) feet, the minimum distance shall be 115 increased by a distance equal to one-half the sum of the additional heights. In the case of opposing buildings on the same lot with opposing partially overlapping walls, the portions of which do not exceed fifteen (15) feet in length, the distance between buildings may be reduced to two-thirds of the required distance. In other cases, except as provided above, the minimum distance between buildings shall be twenty (20) feet. 624.34 Site Plan Review of Multiple-Family Group Development: In reviewing the site plan of a proposed Multiple-Family Group Development, the Planning Commission shall be concerned with the overall arrangement of buildings, parking areas, and open space on the site and the relation of the project with surrounding development. 624.4 Housing for the Elderly: Multiple-family dwellings for the elderly, whether constructed by the Martinsburg Housing Authority or by the private organizations, require special design consideration. It is often desirable that housing for the elderly be located in or near the downtown area and, if more than one story in height, the dwelling units should be in a high-rise elevator structure. The characteristics of elderly housing developments differ in a number of ways from conventional multiple-family housing development—the average number of persons per unit is lower; automobile ownership and usage is lower so off-street parking space can be reduced; and the need for major open space is reduced. In recognition of these special factors, and the need for modern housing for the elderly, the Board of Appeals may permit multiplefamily dwellings or multiple-family group developments for the elderly as a Special Exception in any residential or business district. The Board is authorized to reduce off-street parking requirements to an appropriate level, permit a higher density of units than otherwise allowed, and modify the height limitations. The Board shall determine that the site is adequate in size and location for elderly housing and that the buildings or building will be compatible with adjacent development. SECTION 625. MOBILE HOMES 625.1 Mobile Homes Prohibited on Individual Lots: Mobile homes are prohibited on individual lots, and are to be permitted only in planned mobile home parks, which are permitted in certain zoning districts as a Special Exception, as indicated in Section 560. A mobile home is not permitted as an accessory use to the principal residential structure on a lot. 625.2 Mobile Home Parks: It is the intention of the City that mobile home parks, when permitted, shall be developed to a high standard, providing a healthy and pleasant living environment. Applications for a Special Exception for a mobile home park shall be subject to approval by the Board of Appeals and site plan review by the Planning Commission. Site plans submitted for review shall conform to the requirements of Section 701, as well as indicating the design of the special features found in mobile home parks. An enlargement of an existing mobile home park shall require a Special Exception as if it were a new establishment. 116 625.21 Size of Mobile Home Park: A tract proposed for development as a mobile home park shall have a minimum area of five acres and a minimum width of 200 feet. In a case where the mobile home park is removed from the public highway, an access road with a minimum right-of-way of fifty (50) feet shall be provided. 625.22 Design of Mobile Home Spaces: A separate space shall be provided for each mobile home, with a paved mobile home stand and connections for electricity, water supply and sewage disposal. The proposed water supply and sewage disposal systems for the mobile home park shall be approved by the Berkeley County Health Department. Mobile home spaces in different sections of the mobile home may vary in size, but no space shall be less than 5,000 square feet in area and there shall not be more than eight (8) mobile home spaces per gross acre. No part of a mobile home, including expansion units, shall be closer than ten (10) feet to the edge of the space provided. Each space shall be closer than ten (10) feet to the edge of the space provided. Each space shall be permanently marked. 625.23 Driveways and Parking: Private streets shall provide access to each mobile home space and shall be constructed to standards approved by the Planning Commission. One off-street parking space shall be provided as part of each mobile home space and one additional space shall be provided for each four (4) spaces to provide for two-car families and guests. 625.24 Open Space and Recreation Areas: The land remaining after allocation of area for mobile home spaces and access streets shall be developed as landscaped open space and recreation areas. 625.25 Accessory Uses: As part of a Special Exception permit, the Board may allow convenience commercial establishments, including convenience food stores, laundry and dry cleaning establishments, beauty and barber shops, and similar trades and services. These establishments and their related parking spaces shall not occupy more than ten (10) percent of the mobile home park area and this area shall not be included in calculations of residential density. They shall be subordinate to the residential use and character of the park, shall be designed to serve only residents of the mobile home park, and shall present no visible evidence of their commercial character from any area outside the park. 625.26 Travel Trailers: If travel trailers are allowed in the mobile home park, they shall be located in a separate section that is designed for and has the facilities needed for travel trailers as outlined in Section 627.5. The Board, in allowing a mobile home park, may prohibit travel trailers. 625.27 Screening and Setbacks: No mobile home in a mobile home park shall be located closer than thirty (30) feet to the property line of the park. The Board of Zoning Appeals may require screening with fences and/or shrubs to a suitable height as a condition for granting a Special Exception. 117 625.28 Special Exception Considerations: Before granting a Special Exception for a mobile home park, the Board shall make findings of fact that the site proposed for a mobile home park will not adversely affect the surrounding area. SECTION 626. CLUSTER DEVELOPMENT 626.1 Purpose: The purposes of Cluster Developments are to provide a method of development for land that permits variation in lot sizes without an increase in the density of population or development; that allows subdivisions with varying lot sizes so as to allow home buyers a choice of lot sizes, according to their needs; that preserves open space, tree cover, scenic vistas, natural drainage ways, and outstanding natural topography; that prevents soil erosion by permitting lot sizes according to the nature of the terrain within the development; that provides larger open areas with greater utility for rest and recreation; and that encourages the development of more attractive and economic and less monotonous building forms, by providing freedom of architectural and site design. In order to achieve these purposes, the Planning Commission shall have the authority outlined below. 626.2 Districts Where Permitted: In the RR, RS, and RUA districts, the Planning Commission, in approving subdivision plats, may permit changes in lot area requirements, dimensions, or other standards so as to encourage and permit creation of open space and preservation of natural features. In such cases, however, no lots shall be less than one-half the area normally required in the district in which the proposed subdivision is located, nor shall the lot width be less than two-thirds of that normally required in said district. All other standards shall not be less than those required in the RUB District. However, any lot having any part of its area within one hundred (100) feet of the boundaries of the property shall meet all the normal requirements for lot area and dimensions for the district in which it is located. 626.3 Density Determination and Design Requirements: The Planning Commission shall not approve a Cluster Development plan unless, in its judgment, the appropriate use of adjoining land is reasonably safeguarded or an adequate buffer strip and screening are provided and such plan is consistent with the public welfare, and provided that for such land so shown the average dwelling unit density shall not be more than ten (10) percent higher than is permitted in the district wherein such land lies as shown on the Official Zoning Map. For the purposes of this section, “average density” shall be determined by the number of dwelling units that could be built under the zoning district standards in full conformity with the City’s Subdivision Regulations, and the applicant may be required to furnish a sample layout in sketch form to determine this number. In reviewing such plans, the Planning Commission may require such additional information as it deems necessary to make a reasonable decision on the application. The Planning Commission shall determine that adequate provisions are made for water supply and sewage disposal. 118 626.4 Open Space Requirements: The open space obtained on the tract by reductions of individual lot areas shall be reserved as common open space. No land in streets, sidewalks, utility and storm drainage right-of-ways, and no land normally required by the Planning Commission for recreation land reservation or other necessary appurtenant facilities shall be included in the open space to offset reduction in lot areas. The open space areas may be conveyed to the City if the City is willing to accept such land, or shall be conveyed to a nonprofit Home Association, as outlined in the townhouse development section. The Planning Commission shall not approve leftover parcels or marginal land for open space but will accept for averaging only land suitable for park, conservation and recreation purposes. 626.5 Cluster Development Procedure: Notice of an application for Cluster Development shall be included in the notice published for the required subdivision hearing. The Cluster Development plan, if approved by the Planning Commission and filed in the Office of the County Clerk as required under the City Subdivision Regulations, shall modify, change, or supplement the zoning regulations of the land shown on the plat, the Zoning Map of the City. No permit shall be issued except in accordance with such approved plan. SECTION 627. TRANSIENT HOUSING 627.1 Agricultural Labor Camp: The Board may permit an agricultural labor camp in the districts indicated as a Special Exception. The area shall be of sufficient area to provide for healthy living and sleeping quarters, necessary parking areas, and open space and recreation areas. Health Department regulations must be met. 627.2 Boarding House: Permitted as a Special Exception when determined to be compatible with surrounding development. A rooming or boarding house will almost always be developed through conversion of an existing dwelling. The Board shall determine if the house and lot size is suitable for such use, including space for additional off-street parking. 627.3 Motel, Hotel, Tourist Camp: Permitted in a BL District as a Special Exception when the Board determines that such use is compatible with other commercial development and the surrounding area. 627.4 Tourist Home: Permitted as a Special Exception, subject to same requirements as a Boardinghouse. 627.5 Travel Trailer Park: Travel trailer parks may be permitted in the districts indicated as a Special Exception. Travel trailer parks are intended to provide temporary accommodations for the type of travel vehicles that are becoming increasingly popular for travel and vacation use, including the travel trailer, the pickup coach, the motor home, and the camping trailer. 627.51 Density and Design: A travel trailer park must be at least two (2) acres in size. Each space shall be at least 1,000 square feet in area. Trailers shall be separated from each other from other structures by at least ten (10) feet. Accessory structures, such as awnings and carports shall, for purposes of this 119 separation requirement, be considered to be part of the trailer. No more than twenty-five (25) spaces per acre shall be allowed. The remaining area shall be reserved for recreation and open space use. A buffer area or screening around the perimeter for the park may be required. No building or trailer shall be located closer than twenty-five (25) feet to the tract boundary. 627.52 Service Facilities: A central service building containing the necessary toilet and washing facilities shall be provided in each travel trailer park. The number and arrangement of these facilities shall be approved by the Berkeley County Health Department. The Board may permit accessory stores and services, as in a mobile home park, provided these services are intended and arranged only for use of the travel park residents. 627.53 Parking and Access: Off-street parking, consisting of one space per trailer space, shall be provided. Additional spaces for visitors shall also be provided. All trailer spaces shall have access to a public road by way of an interior service drive. 627.54 Review Procedure: When submitting the Special Exception application, the applicant shall include a plan, drawn at a suitable scale, showing the arrangement of travel trailer sites and connecting driveways. The site plan shall be approved by the Planning Commission as part of the Special Exception review. The applicant shall also present a written statement, with accompanying plans, describing how water and sewage disposal service are to be provided. These arrangements shall be approved by the Berkeley County Health Department before a Special Exception is approved. 627.6 Vacation Lodge or Camp: Permitted as a Special Exception. A minimum area of five (5) acres is required. Buildings and recreation areas shall be designed to maintain the natural character for the site. SECTION 630. BUSINESS USES SECTION 631. RETAIL TRADE 631.1 Antique Shop: Permitted as a Special Exception. Outdoor display of the articles for sale shall not be located in the required front yard. 631.2 Vending Machines: Normal vending machines are permitted as an accessory use in commercial and industrial districts. Large scale vending machines, or groups of machines, shall be considered as a separate use and require site plan review. SECTION 632. BUSINESS AND PERSONAL SERVICES 632.1 Funeral Home: Permitted as a Special Exception in residential districts. The Board shall determine that the lot and existing building, if any, is adequate for the use proposed and will not be detrimental to the surrounding area. 120 632.2 Professional Offices: The Board may permit limited professional office use in residential districts as a Special Exception, subject to the following requirements. a. Such uses shall be confined to the offices of doctors, dentists, lawyers, accountants, and similar professional persons, who need not have living quarters in the building. b. Such uses shall not be located above the ground-level floor and shall be so located, constructed and sound-controlled as to protect tenants of the building from noise, odor, and office traffic. The exterior of the premises shall not be changed or altered, nor shall any name plate or other sign exceeding two (2) square feet in area be displayed on the premises. c. There shall be provided sufficient “reserved” parking spaces during hours of operation to accommodate patients, clients, and visitors. SECTION 633. WHOLESALING AND PROCESSING Certain open storage uses (bulk materials storage, contractors storage yard) (building supply yards) are permitted in the BC District. The Board shall determine that such uses are compatible with the other uses in the surrounding area. Additional requirements, such as screening, may be imposed as a condition for granting the Special Exception. SECTION 634. AUTOMOTIVE AND RELATED SERVICES Automobile repairs and servicing are uses which by their nature are not compatible with some other commercial development. Before granting a Special Exception for an automotive service use, the Board shall consider the effect of such a use on surrounding development, in addition to the specific requirements outlined below. 634.1 Automobile Laundry (carwash): Construction of a carwash on an inadequate site frequently results in traffic congestion on the adjacent street. Storage of cars awaiting washing is a function of the carwash and such space should be provided on the zoning lot, not on a public street. For an automatic carwash, off-street storage space for ten (10) automobiles per washing lane shall be provided. For a self-service carwash, at least five (5) storage spaces per washing lane shall be provided. Parking for employees shall be provided in addition to customer storage spaces. Access drives shall be arranged to facilitate rapid movement of cars to washing areas. 634.2 Automobile Service Station: All automobile service stations shall have a minimum lot area of 15,000 square feet and a minimum street frontage of 125 feet. Landscaping and design of driveways shall conform to the regulations for parking areas. 634.3 Parking Garage or Lot: Permitted as a Special Exception in residential districts. Appropriate screening shall be provided. SECTION 635. ANIMAL SALES AND SERVICE 121 The requirement of a Special Exception for certain animal sales and service establishments is intended to prevent a detrimental effect on surrounding property, due to noise or odor, resulting from the animals. Before granting a Special Exception, the Board shall determine that detrimental effects will be avoided by the design or placement of buildings or animal yards, that adequate space for the animals has been provided, and that applicable Health Department regulations have been met. SECTION 636. COMMERCIAL AMUSEMENTS Land area and design needs vary widely for different types of commercial amusement. Before granting a Special Exception for a commercial amusement use, the Board shall determine that the proposed activity will not be detrimental to the surrounding area and that the site area is sufficient for the use, including required off-street parking, accessory uses, and screening area. Special attention shall be given to the design of access drives for high traffic generating uses. The Board may require special fencing or screening around commercial recreation areas. When appropriate, the Board may grant a temporary Special Exception. Normal accessory uses, such as food and drink sales, may be permitted in connection with a commercial amusement. SECTION 640. INDUSTRIAL USES 640.1 Salvage Yards: Placement and screening of salvage yards shall meet all state regulations and the following City requirements: 640.11 Fencing: Fencing shall be required along any road on which the salvage yard fronts. The Planning Commission, for site plan review, or the Board of Zoning Appeals, for Special Exception, may require fencing along other lot lines. Fencing shall mean an enclosure, barrier, or screen constructed of materials or consisting of plantings, natural objects, or other appropriate means, located so as to effectively screen at all times salvage yards and the salvage therein contained from the view of persons on adjacent roads or property. SECTION 650. PUBLIC AND SEMIPUBLIC USES Public and semipublic uses are generally allowed in residential districts, but characteristics of some such uses require that they be subject to site plan review or require a Special Exception. SECTION 651. OPEN SPACE USES 651.1 Airport or Heliport: Permitted only where such use will not be detrimental or dangerous to surrounding areas. The Planning Commission shall consult with the FAA in connection with an airport or heliport application. 651.2 Cemetery: Permitted as a Special Exception. Minimum size of a new cemetery shall be ten (10) acres. All graves shall be set back at least thirty (30) feet from all property lines and all burial buildings shall be set back at least one hundred (100) feet from all property lines. 651.3 Country Clubs, Golf Courses: The site shall be adequate for the recreation activities proposed and for parking and accessory buildings. All buildings shall be set back at least fifty (50) feet from surrounding property lines. 122 651.4 Park or Recreation Area: The Planning Commission shall review the site plan. Intensive recreation activities shall not be located immediately adjacent to residential lots. 651.5 Shooting Range: Shall be permitted only where shooting shall not present a danger to the surrounding area. Appropriate area shall be required. 651.6 Swimming Pool, Community: Permitted as a Special Exception, subject to the following conditions: a. The swimming pool, including the apron, filtering and pumping equipment and any buildings, shall be at least 76 feet from the nearest property line and at least 125 feet from any existing dwelling on an adjoining property except that where the lot upon which it is located abuts land in a commercial or industrial district, the pool may be constructed not less than twenty-five (25) feet from the nearest property line of such land. b. When the lot on which any such pool is located abuts the rear or side lot line of, or is across the street from any land in a residential district, a substantial sightly wall, fence or shrubbery shall be erected or planted so as to effectively screen the pool from view from the nearest property located in a residential district. c. The Board may require such additional conditions as it deems necessary, including, but not limited to, provision for additional fencing and/or planting or other landscaping; additional setback from property lines; parking space; location and arrangement of lighting, and other reasonable requirements. SECTION 652. PUBLIC AND INSTITUTIONAL USES 652.1 Arena or Stadium: Access to a major highway required. Site must be sufficient for needed parking and screening. 652.2 Church: Subject to site plan review. A church shall have a minimum lot area of 20,000 square feet, a minimum frontage of 100 feet, and minimum setbacks from all property lines of twenty-five (25) feet. 652.3 Medical or Philanthropic Institutions: The Board shall determine that the proposed use will not constitute a nuisance because of traffic, noise, number of patients or persons being cared for, or the type of physical activity; that said use will not affect adversely the present character or future development of the surrounding residential community; and that the following minimum requirements are met. a. Hospital or Sanitarium Total area—two (2) acres Frontage—two hundred (200) feet Setback—twenty-five (25) feet from all property lines b. Nursing Home Total area—one-half (1/2) acre Frontage—one hundred fifty (150) feet Setback—twenty-five (25) feet from all property lines c. Philanthropic Institutions Total area—one (1) acre 123 Frontage—one hundred fifty (150) feet Setback—twenty-five (25) feet from all property lines If more than eleven (11) patients are to be cared for, the minimum area shall be increased by 1,000 square feet for each patient above ten (10). 652.4 Private Club, Social: A bona fide private club of a social nature may be permitted as a Special Exception in the districts indicated if the Board determines that the proposed site is adequate in area, including off-street parking spaces, and that the club activities will not be detrimental to the surrounding area. 652.5 Schools: The minimum area for a school or educational institution shall be five (5) acres, with a frontage of 300 feet. School buildings shall be set back fifty (50) feet from all property lines. 652.51 Nursery School: A nursery school shall be located on a lot with a minimum area of 20,000 square feet. Fencing and screen planting may be required. SECTION 660. PUBLIC UTILITY USE 660.1 Dump: Permitted as a Special Exception only when such use will not be detrimental to surrounding properties. Adequate screening shall be provided, as for a salvage yard. Health Department regulations shall be met (see Section 640). 660.2 Public Utility Uses or Structures: Water, sewer, electric, gas and communications lines, and necessary incidental equipment such as repeaters, transformers, switches, pumps, and regulators (when such equipment is located on the lines) are permitted in all districts and shall not be subject to lot, yard, height, and lot coverage requirements. Other public utility uses, such as administration buildings and construction, maintenance, and storage yards or buildings, are permitted by right in industrial districts, subject to site plan review, and as Special Exceptions in other districts. The Board may permit a public utility use or structure as a Special Exception when the Board determines that: a. The proposed use at the location selected is necessary for public convenience and service; and, b. The proposed use at the location selected will not endanger the health and safety of workers and/or residents in the community and will not impair or prove detrimental to neighboring properties or the development of same. Public Utility buildings and structures, in any residential district shall, whenever practicable, have an exterior appearance harmonious with the general character of the neighborhood and shall have landscaping screen planting, and/or fencing, whenever these are deemed necessary by the Board. Utility business offices, power plants, storage yards, and similar commercial industrial uses shall be excluded from any residential district. 124 ARTICLE VII DEVELOPMENT REVIEW 125 ARTICLE VII. DEVELOPMENT REVIEW AN ORDINANCE TO AMEND ARTICLE VII, DEVELOPMENT REVIEW SECTIONS 700 THROUGH 701.9 OF THE MARTINSBURG ZONING ORDINANCE ORDINANCE NUMBER _______________ SECTION 700. PURPOSE This Article outlines procedures and requirements for Site Plan Review. SECTION 701. SITE PLAN REVIEW 701.1 Legislative Intent: Routine administration of the Zoning Ordinance is the responsibility of the City Planner. However, sound future development of the city requires that certain high intensity development, and development in certain critical areas, receive special site plan review by the Planning Commission. Site plan review and approval are required for uses which are not intrinsically objectionable -. but which have inherent characteristics that, if not properly handled, have the potential for yielding unsatisfactory results of one type or another. They are uses which depend upon sound site planning and design to prevent them from becoming detrimental to the health, safety, or general welfare of the public, or to neighboring land uses. Site plan review enables the Planning Commission and other local agencies to evaluate the merits of each proposal for such use, enables the applicant to receive expert criticism of the proposal from the Planning Commission, and thereby improve its quality, and provides a mechanism whereby the City government can ensure well-designed development in the city. 701.2 General: For uses and areas which require site plan review, no building permit shall be issued, and no building or use shall be established or continued except in conformity with a site development plan approved by the Planning Commission, and no zoning use and occupancy permit shall be issued until all of the requirements of this section have been met. Continued conformance with such a plan and such requirements shall be a condition of any use and occupancy permit. The City Planner shall be responsible for certifying that requirements of this section have been met. 701.3 Site Plan Review Limitations: Uses requiring site plan review are indicated in Section 560. Table of Zoning District Uses. Site plan review is required for all development in business and industrial districts. The term development shall mean any man-made change to improved or unimproved real estate, including but not limited to, buildings or other structures; whether in the form of new construction, or an expansion or addition to an existing structure, or the construction of an accessory structure, mining, dredging, filling, grading, paving, excavation or drilling operations. Site plan review is required for developments of 120 square feet or more in area. 126 After a site plan has been approved and construction of the development has been completed in accordance with the site plan, a permitted change in use which does not materially affect the design of the development and which requires no new construction other than minor remodeling and changing of permitted signs, shall not require an additional site plan review by the Planning Commission. Such a use change may be processed by the City Planner. Any major expansion or modification of a use with an approved site plan shall be subject to a new site plan review by the Planning Commission. Only one site plan review exemption shall be allowed per development, regardless of size, in any two year period. The City Planner may refer uncertain cases to the Planning Commission. 701.4 Required Information: An application for a zoning permit involving site plan approval by the Planning Commission shall be made to the City Planner and shall be accompanied by the following information: a. Map of the applicant’s entire holding at a convenient scale; b. Vicinity map at a scale of 600 feet or more to the inch indicating the location of the property with respect to surrounding property and streets. The map shall show all streets, easements, subdivisions, and properties within 1,000 feet of the applicant’s property. All property held by the applicant in the area shall be identified; c. Topographic map of the property, at two (2) foot contour intervals, unless otherwise specified by the Planning Commission, showing the existing and proposed regraded surface of the land and the location of natural features, such as streams., wetlands, rock outcrops, and all trees measuring 12’ or more in diameter at a point three feet above existing grade; d. A site plan showing location, proposed use and height of all buildings; location of all parking and truck loading areas with access and egress drives thereto; location of outdoor storage, if any; location and type of recreation facilities, if any; location of all existing or proposed site improvements, including drains culverts, retaining walls and fences; the proposed grading, landscaping, and screening plans; description of method of water supply and sewage disposal and location of such facilities; location and proposed development of buffer areas and landscaping where required; location and design of outdoor lighting facilities; and the location, size and type of any signs; e. A computation of total lot area, of building floor area for each type of proposed use, building coverage, roads, and parking, zoning classification of parcel for which site plan review is being requested, and zoning classification of surrounding properties; f. For commercial or manufacturing uses, specific uses proposed; 127 number of employees for which buildings are designed, and if an expansion or addition to an existing structure, the impact on existing structures; type of power to be used for any manufacturing processes; type of wastes or by-products to be produced by any manufacturing process, and proposed method of disposal of such wastes or byproducts; and such other information as may be required by the Planning Commission to determine the impact of a particular use on adjoining properties; g. Production or disposal of any hazardous wastes or byproducts shall be in accordance with the Environmental Protection Agency (EPA) guidelines; h. Supplemental district overlays (Historic Preservation District, Flood Plain District, Highway Interchange, Airport Zones) shall be noted on the site plan. 701.5 Procedure for Preparation 701.51 Subdivision Regulations: It is recommended that applicants acquaint themselves with the Martinsburg Subdivision Regulations so that documentation for site plan review by the Planning Commission and for subdivision plat approval by the Planning Commission, when required, may be prepared simultaneously. 701.52 Plans to be Prepared by Authorized Persons: Site plans or any portion thereof, involving engineering, architecture or land surveying, shall be prepared and certified by an engineer, architect, landscape architect, or land surveyor duly authorized by the State of West Virginia to practice as such. 701.53 Scale and Sheet Size: Site plans shall be prepared to a scale of not smaller than one inch equals one hundred feet; the sheet or sheets shall be twenty-four inches by thirty-six inches, including a 1 1/2 inch margin for binding along left edge. A site plan may be prepared in one or more sheets, in which case match lines and an index sheet shall be provided. The site plan title block shall appear on the opposite side of the binding margin. Said title block shall be a minimum of two (2) two inches in width and shall run the full width of the printed page. A block for the signature of the Martinsburg Planning Commission shall be contained within the site plan title block. Said signature block shall be no less than four (4) inches in width. Shown below is an example of the required title block. 128 MARTINSBURG PLANNING COMMISSION Martinsburg, West Virginia Adopted_____________________________ Date________________________________ (Not to Scale) 701.54 Number of Copies: Six full sets of site plans, and six additional site plan sheets, clearly legible, in blue or black line copies, shall be submitted to the City Planner, and shall be accompanied by the payment of all site plan fees as established by the City Council. 701.6 Procedure for Processing: Each application involving site plan approval, together with the required information described in Section 701.4, shall be submitted to the City Planner for review no later that thirty (30) days prior to the Planning Commission’s regular monthly meeting. Action shall be taken by the Planning Commission and a decision rendered thereon within ninety (90) days of the date the application is received by the City Planner. The City Planner shall route copies of the application to the reviewing city agencies and officials during the review period. 701.61 Agreement: Prior to approval of any site plan, there shall be executed by the owner and/or developer and submitted with the site plan an agreement to construct such required physical improvements as are required for site plan approval in form and substance as approved by the Planning Commission. The owner and/or developer shall submit a public improvements estimate from a registered professional engineer as part of the site plan review. A performance surety shall be submitted to the Planning Commission in the form of an escrow account, guarantee by a surety company or a financial lending institution acceptable to the City Attorney. The amount of the surety shall not be less than one hundred fifteen percent of the contract cost of the public improvements, The Planning Commission may allow a partial release of the deposit or amount of the surety upon completion and acceptance of the various stages of development as delineated, described, and scheduled on the required plans and specifications. 701.62 Expiration and Extension: Approval of a site plan submitted under the provisions of this article shall expire one year after the date of such approval unless construction has begun. A one-year extension may be granted by the Planning Commission, and shall require the purchase of a new building permit to cover work to be completed. 701.63 Revisions and Waiver: Any site plan may be revised in the same manner as originally approved, and any requirements of this article may be waived by the Planning Commission in specific cases where such requirement is found to be unreasonable and such waiver will not be adverse to the purpose of this section. 129 701.64 As-Built Site Plan: Upon satisfactory completion of the installation of required improvements as shown on the approved site plan or a section thereof, the developer shall submit to the City Planner six (6) copies of “as-built” site plan, certified by the engineer or surveyor, at least two weeks prior to anticipated occupancy of any building, for the review and approval for conformity with the approved site plan. The City Planner shall not process the zoning use and occupancy permit until the appropriate “as-built” site plan has been reviewed and approved. 701.7 General Standards for Site Plan Approval: Approval: In acting upon any site development plan, the Planning Commission shall determine that the proposed use, site layout and overall appearance of all buildings in the proposed development are such that they will have a harmonious relationship with existing or permitted development of contiguous land and of adjacent neighborhoods, and that the proposed development is in harmony with the development policies outlined in the Martinsburg Comprehensive Development Plan and in this zoning ordinance. The Planning Commission shall seek to provide for the conservation of woodland and the protection of water courses from erosion and siltation, and a maximum of safety, convenience, and amenity for the residents or users of the proposed development. To these ends, the Planning Commission shall consider the location of buildings, parking areas, and other features with respect to the topography of the lot and existing features such as streams and large trees; the efficiency, adequacy and safety of the proposed layout of internal streets and driveways; the adequacy and location of open space; the adequacy, location, and screening of the parking lots; and such other matters as the Commission may find to have a material bearing upon the stated intent of the site plan review procedure. In reviewing individual development proposals in the multiple-family, business and industrial districts. the Planning Commission shall attempt to the extent possible. To promote a modern, harmonious development pattern such as is achieved though unified site planning in the RP, BP, and IP Districts. The Planning Commission may undertake site plan studies of such areas to provide guidelines in the site plan review process involving individual developments. 701.8 Specific Standards and Conditions for Site Plan Approval: The following specific standards shall be met in site development plans, in addition to the standards in other sections of this ordinance. 701.81 Setbacks: No parking space shall be located within any required setback areas. 701.82 Lighting: All lighting shall be so shielded that there will be no objectionable glare observable from surrounding properties or streets. 701.83 Public Utilities: The servicing utility shall certify that water and sewerage services are adequate to service the proposed development, or shall certify the adequacy of any on-site water supply or sewage treatment proposal 701.84 Screening: The Planning Commission may require screening along the property lines when necessary, as a condition for site plan approval. Minimum standards 130 for all screening shall be a strip at least four feet wide, densely planted with shrubs or trees which are at least four feet high at the time of planting, and which are of a type which may be expected to form a year-round dense screen at least six feet high within three years. 701.85 Street Capacity: The traffic capacity of existing streets shall be adequate for the volume of traffic which the proposed development is expected to generate. The Planning Commission reserves the right to request that a traffic study be performed by a professional engineer at the developer and/or owners expense. 701.86 Common Areas: If the plan of development includes common areas, property, and/or facilities, the Planning Commission as a condition of approval shall establish such conditions on the ownership, use, and maintenance of such lands or property as it deems necessary to ensure the preservation of such areas, property, and facilities for their intended purpose. 701.9 Appeal of Site Plan Review Decision: The applicant for a use involving site plan review shall have the right to appeal the decision of the Planning Commission to the Board of Zoning Appeals. The Board shall review the entire record of the application and may affirm, modify, or establish such other or additional conditions to the decision as may seem appropriate, consistent with the intent of this ordinance. This Ordinance will take effect upon passage. 131 SECTION 702. SPECIAL EXCEPTIONS 702.1 Legislative Intent: In order to accomplish the general purposes of this Ordinance, certain unusual uses need special consideration. They require large land areas or need special regulations to achieve compatibility with the existing or planned future development. Often the effects of these uses on the surrounding environment cannot be foreseen until a specific site has been proposed. They must be given special consideration and located relative to the existing and planned future development pattern. They are not permitted automatically, but are subject to the general regulations, the design requirements of Article VI, and the conditions imposed in a Special Exception permit issued by the Board of Zoning Appeals under this Ordinance. 702.2 Special Exception Procedure: The Board of Zoning Appeals has the authority to grant a Special Exception use following a legally advertised public hearing. A Special Exception application may include any necessary plans and data. All approved Special Exception uses by the Board require site plan review and approval by the Planning Commission. 702.21 Zoning Map to Indicate Special Exception: Upon receipt of a notice of grant of Special Exception, the Building Inspector shall indicate the same in the proper place on the Zoning Map by use of appropriate code number or symbol. 702.22 Enlargement of Special Exception. No use or activity permitted as a Special Exception shall be enlarged or extended beyond the limits authorized in the grant of Special Exception. All enlargements extensions, and changes shall require grants of Special Exceptions, as in the case of an original petition. 702.23 Renewal of Petition After Denial: If a grant of Special Exception is denied, no new petition for the denied use on the same property shall be accepted by the Board of Zoning Appeals until one year after the date of hearing on the denied petition. 702.24 Notice of Action: Notice of action taken by the Board on each petition for a Special Exception shall be transmitted to the petitioner and to the Planning Commission. In cases where the Special Exceptions have been granted, the notice shall set forth the conditions, standards, and rules to which the Special Exception is subject. 702.3 General Requirements for Granting a Special Exception: A grant of Special Exception is basically a matter of development policy, rather than an appeal board on administrative error or on hardship in a particular case. The Board of Zoning Appeals should, therefore, consider the relation of the proposed use to existing and future development patterns. In general, a Special Exception may be granted when the Board finds that: 702.31 The proposed use is in harmony with the purpose and intent of the Martinsburg Comprehensive Development Plan and of this zoning ordinance. 702.32 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 132 such that it will be in harmony with the appropriate and orderly development of the district in which it is located. 702.33 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. 702.34 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. 702.35 Parking areas will be of adequate size for the particular use, properly located and suitable screened from adjoining residential uses, and the entrance and exit drives shall be laid out so as to achieve maximum safety. 702.36 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. 702.4 Specific Requirements for Granting a Special Exception: In addition to the general requirements listed above, uses requiring a Special Exception shall be subject to the specific requirements for each use outlined in Article VI. 702.5 Additional Provisions: A Special Exception permit may be granted in accordance with the general and specific requirements enumerated in the preceding sections The Board may, and is hereby authorized, to add the specific requirements any additional conditions that it may deem necessary to protect adjacent properties, the general neighborhood, and the residents and/or workers therein. Violation of such additional conditions, when made a part of the terms under which the Special Exception permit is granted, shall be deemed a violation of this Ordinance and may be grounds for termination of the Special Exception permit. 133 ARTICLE VIII ADMINISTRATION AND ENFORCEMENT 134 ARTICLE VIII: ADMINISTRATION AND ENFORCEMENT SECTION 800. DUTIES OF BUILDING INSPECTOR 800.1 Administration of Ordinance: The City’s Building Inspector shall administer and enforce this Ordinance. He may be provided with the assistance of such persons as the City Administration may direct. 800.2 Zoning Permit Records: The Building Inspector shall maintain a record of all permits and copies shall be furnished upon request to any person. 800.3 Complaints Regarding Violations: Whenever a violation of this Ordinance occurs, or is alleged to have occurred, any person may file a written complaint. Such complaint, stating fully the causes and basis thereof, shall be filed with the Building Inspector. The Building Inspector shall record properly such complaint, immediately investigate, and take action thereon as provided by this Ordinance. 800.4 Violation Procedure: If the Building Inspector shall find that any of the provisions of this Ordinance are being violated, he shall notify in writing the person responsible for such violations, indicating the nature of the violation and ordering the action necessary to correct it. He shall order discontinuance of illegal use of land, buildings, or structures; removal of illegal buildings or structures or of additions, alterations, or structural changes thereto; discontinuance of any illegal work being done; or shall take any other action authorized by this Ordinance to ensure compliance with or to prevent violation of its provisions. SECTION 801. PERMITS Two types of permits are required by the Ordinance: 1) a Building Permit, and 2) a Use & Occupancy Permit. 801.1 Building Permit: No building or other structure shall be erected, nor shall any existing building or other structure be moved, added to, repaired, enlarged, or structurally altered; and no excavation for any building or other structure shall be begun without the issuance of a Building Permit therefore by the Building Inspector. 801.11 In cases where no building or other structure is proposed, a Use and Occupancy Permit shall be obtained from the Building Inspector before any land is used for any purpose or any building converted wholly or in part to a different use; except that the agricultural uses, accessory uses, and home occupations permitted under these regulations shall not require such permit. 801.12 No Building Permit for erection, alteration, moving or repair of any building or other structure shall be issued until an application has also been made for a zoning Use & Occupancy Permit; the Use & Occupancy Permit shall be issued in conformity with the provisions of this Ordinance upon completion of the work. 801.13 Failure to obtain Building Permit shall be a violation of this Ordinance. 135 801.2 Use & Occupancy Permit: It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or part thereof, hereafter created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structure until a Use & Occupancy Permit shall have been issued therefore by the Building Inspector stating that the proposed use of the building or land conforms to the requirements of this Ordinance. 801.21 No Use & Occupancy Permit shall be required for use of a residential structure, except when increasing the number of dwelling units. 801.22 The Building Inspector shall maintain a record of nonconforming structures and uses from the date of the adoption of this Ordinance. No nonconforming structure or use shall be renewed, changed, or extended until a Use & Occupancy Permit shall have been issued. The Use & Occupancy Permit shall state specifically wherein the nonconforming use differs from the provisions of the Ordinance. 801.23 Failure to obtain Use & Occupancy Permit, for change, renewal, or extension, shall be a violation of this Ordinance. 801.3 Application for Permits: An application for a permit shall show such information as may be necessary to determine if the application conforms with the regulations of this Ordinance and shall be accompanied by a plat in duplicate, drawn to such scale as the Building Inspector may require, showing the actual dimensions of the lot built upon or to be built upon, the size and situation of the building or buildings to be constructed, the size and situation of any proposed extension, the house number and names of all streets upon which the lot abuts, and such other information as may be necessary to provide enforcement of this Ordinance, or upon which to base an inspection prior to passing on the application. 801.4 Processing of Application: If the application, filed together with the plans and specifications conforms in all respects with the requirements of this Ordinance, the Building Inspector shall, within reasonable time, issue the permit applied for. One copy of the plans shall be returned to the applicant by the Building Inspector, after he shall have marked such copy either as approved or disapproved and attested to the same by his signature on such copy. The second copy of the plans, similarly marked, shall be retained by the Building Inspector. If the application and the accompany papers do not comply, in all respects, with the regulations of this Ordinance, it shall be disapproved by the Building Inspector, and the applicant notified in writing. The Building Inspector may, in his discretion, before disapproving any application, return such application, plans or specifications in order to make the proposal comply with the regulations of this Ordinance. In such event, the Building Inspector shall proceed to pass upon the application as if it were an original one. 801.5 Expiration of Building Permits: If the work described in any Building Permit has not begun within six months from the date of issuance thereof, said permit shall 136 expire; it shall be cancelled by the Building Inspector, and written notice thereof shall be given to the person affected. If the work described in any permit has not been substantially completed within two years of the date of issuance thereof unless work is satisfactorily proceeding, said permit shall expire and be cancelled by the Building Inspector, and written notice that further work as described in the cancelled permit shall not proceed unless and until a new permit has been obtained. 801.6 Construction and Use to be as Provided in Applications, Plans, and Permits: Permits issued on the basis of site plans and applications approved by the Building Inspector authorize only the use, arrangement, or construction. Use, arrangement, or construction differing with that authorized shall be deemed violation of this Ordinance. SECTION 802. SCHEDULE OF FEES AND CHARGES The City Council of Martinsburg may establish a schedule of fees and charges, and a collection procedure, for permits, amendments, appeals, and other matters pertaining to this Ordinance. The schedule of fees shall be posted in the office of the Building Inspector, and may be altered or amended only by the City Council. No Permit, Special Exception, or Variance shall be issued until such fees or charges have been paid in full nor shall any action be taken on proceedings before the Board of Appeals unless preliminary charges and fees have been paid in full. SECTION 803. ENFORCEMENT AND PENALTIES FOR VIOLATION 803.1 Liability: Any building erected, raised, or converted, or land or premises used in violation of any provisions of this Ordinance shall be a common nuisance and the owner of the building, land or premises shall be liable for maintaining a common nuisance. 803.2 Injunction: The Planning Commission, the Historic Preservation Review Commission, the Board of Zoning Appeals or the Building Inspector may institute a suit for injunction in the Circuit Court of Berkeley County to restrain a person or persons, firm, corporation, or governmental unit from violating the provisions of this Ordinance. The Planning Commission or the Board of Zoning Appeals may also institute a suit for a mandatory injunction directing an individual on a governmental unit to remove a structure erected in violation of the provisions of this article or of an Ordinance enacted pursuant to its terms. If the Planning Commission or the Board of Zoning Appeals is successful in its suit, the respondent shall bear the court costs of the action. 803.3 Penalty: A person who violates any provision of this Ordinance shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than ten (10) dollars and not more than three hundred (300) dollars. Each day such violation continues shall constitute a separate offense. 137 ARTICLE IX BOARD OF ZONING APPEALS 138 ARTICLE IX BOARD OF ZONING APPEALS SECTION 900. GENERAL ORGANIZATION 900.1 Creation and Membership: The City Council of Martinsburg shall create a Board of Zoning Appeals consisting of five members. The members of the Board of Zoning Appeals shall be freeholders and residents of the city and three-fifths of such members shall have been residents of the city for at least ten years preceding the time for their appointment. No member of the Board of Zoning Appeals shall be a member of the Planning Commission nor shall any member hold other elective and appointive office in the City government. Members of the Board shall serve without compensation, but shall be reimbursed for actual expenses incurred in the performance of their official duties. 900.2 Terms and Vacancies: Upon the creation of the Board of Zoning Appeals, the members shall be appointed for the following terms, one for a term of one year; two for a term of two years; two for a term of three years. The terms shall expire on the first day of January of the first, second, or third year, respectively, following their appointment. Thereafter, as their terms expire, each new appointment shall be for a term of three years. If a vacancy occurs, by resignation or otherwise, among the members of the Board of Zoning Appeals the City Council shall appoint a member for the unexpired term. The Mayor with approval of City Council shall appoint a first and a second alternate, who shall act in the event any member recuses himself. 900.3 Organization and Administration: At the first meeting of each year, the Board of Zoning Appeals shall elect a chairman and vice chairman from its members. The vice chairman shall have authority to act as chairman during the absence or disability of the chairman. A majority of members of a Board of Zoning Appeals shall constitute a quorum. No action of the Board is official, however, unless authorized by a majority of the Board. The Board of Zoning Appeals may appoint and fix the compensation of a secretary and such employees as are necessary for the discharge of its duties, all in conformity to and compliance with salaries and compensations therefore fixed by the City Council. The City Council shall provide the Board with suitable offices for the holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the Board. 900.4 Proceedings of the Board of Zoning Appeals: The Board of Zoning Appeals shall adopt rules necessary to the conduct of its affairs, and in keeping with the provisions of this Ordinance. Meetings shall be held at the call of the chairman and at such other items as the Board may determine. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings shall be open to the public. The Board shall keep minutes of its proceedings, examinations, and other official actions and shall record the vote on all actions taken. All minutes and records shall be filed in the office of the Board and shall be a public record. 139 SECTION 901. POWERS AND DUTIES 901.1 Administrative Review: The Board shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Building Inspector in the enforcement of this Ordinance, and of the Planning Commission in cases of site plan review. 901.2 Special Exceptions: The Board shall have the power to hear and decide such Special Exceptions as the Board of Zoning Appeals is authorized to pass on by the terms of this Ordinance; to decide such questions as are in involved in determining whether Special Exceptions should be granted, and to grant Special Exceptions with such conditions and safeguards as are appropriate under this Ordinance, or to deny Special Exceptions when not in harmony with the purpose and intent of this Ordinance. General and specific conditions for granting Special Exceptions are outlined in Articles VI and VII of this Ordinance. 901.3 Variances: The Board shall have the power to authorize upon appeal in specific cases such Variance from the terms of this 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. 901.4 Decisions of the Board of Appeals: In exercising the above mentioned powers, the Board of Appeals may, so long as such action is in conformity with the terms of this Ordinance, reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination as ought to be made, and to that end shall have powers of the Building Inspector from whom the appeal is taken. The concurring vote of four of the members of the Board shall be necessary to reverse any order, requirement, decision, or determination of the Building Inspector, 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. 901.5 Limitation of Authority: Nothing contained in these regulations shall be deemed to authorize the Board to reverse or modify any refusal of a permit or any other offer, requirement, decision or determination which conforms to the provisions of this Ordinance, and which, therefore, is not erroneous; nor to authorize the Board to validate, ratify, or legalize any violation of law or any of the regulations of this Ordinance. The Board shall not amend any of these regulations or the Zoning Map; nor shall such power or authority be vested in the Board. SECTION 902. PROCEDURE APPLICATIONS FOR APPEALS AND SPECIAL EXCEPTION 902.1 Appeal Procedure: Appeals to the Board of Appeals may be any person, board, association, corporation, or official allegedly aggrieved by the grant or refusal 140 of a building or use or occupancy permit, or by any other administrative decision based or claimed to be based, in whole or in part, upon any of these regulations or the Zoning Map. An appeal relating to a Variance shall be filed with the board only after refusal of issuance of a Building Permit or use or occupancy permit by the Building Inspector or after the issuance of a permit in cases where it is alleged that said permit has been issued erroneously. An appeal stays all proceedings in furtherance of the action appealed from, unless the Building Inspector from whom the appeal is taken certifies to the Board of Appeals after the notice of the appeal is filed with him, that by reason of facts stated in the certificate, a stay would, in his opinion, cause imminent peril to life and property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by the Board of Appeals or by the Circuit Court on application, on notice to the Building Inspector from whom the appeal is taken and on due cause shown. 902.2 Application for a Special Exception: 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. 902.3 Application Forms: Appeals and applications for Special Exceptions shall be made on forms provided by the Building Inspector; and the appellant shall pay the Building Inspector all expenses incidental to the appeal, including the cost for sending notices and advertising. No form shall be accepted by the Building Inspector unless it contains all pertinent information and is accompanied by the required fee to defray expenses. 902.4 Establishment of Hearing Date: The Board of Zoning Appeals shall hold a public hearing before making a decision on any appeal or other matter within its powers. Upon accepting an application for an appeal or for a Special Exception, the Building Inspector shall set a date for a public hearing by the Board of Appeals, at a specified place and date. Appeals and applications filed in proper form shall be numbered serially, docketed, and placed upon the calendar of the Board. The calendar of appeals to be heard shall be posted conspicuously in City Hall for the period before such hearing date. 902.5 Publication of Notice: The Building Inspector shall cause to be published once, at the expense of the applicant, a notice of the public hearing. This notice shall be published in a days prior to the date set for the hearing. The notice shall include the application number and the date, time, and place of the hearing. The notice shall also include: a. A summary of the appeal or the Special Exception requested. b. The location of the property, its area, name of owner, and the application number. 141 902.6 Posting of Property: Within seven (7) days after acceptance of an application for a Variance or a Special Exception the Building Inspector shall erect a sign on the subject land. Such a sign shall be erected within (10) feet of whatever boundary line of such land abuts the most traveled public road and if no public road abuts thereon, then facing in such a manner as may be most readily seen by the public. The sign shall bear conspicuously the words: Notice of Zoning Appeal,” with a copy of the notice described in Section 902.5. If the land lies within more than one block as shown on a plat recorded in the county land records, then a sign shall be erected on the land in each such block. The sign(s) shall be maintained at all times until a decision on the application has been made public by the Board of Appeals. It shall be unlawful for any person to remove or tamper with such a sign during the period it is required to be maintained. 902.7 Investigation of the Board of Appeals: The Board of Appeals shall make an inspection of the premises involved in the application and of the neighborhood deemed to be affected, giving consideration to the present physical conditions of the premises and the vicinity. The Board shall also give consideration to the present conditions which the records show were considered in the design for the Zoning Map and Ordinance text provisions for the property and its immediate vicinity, considering especially any changes since the zoning ordinance was adopted. 902.8 Hearing Procedure: At the hearing, any party may appear in person or by agent or attorney. SECTION 903. CONDITIONS FOR GRANTING AN APPEAL 903.1 Special Exception: The Board of Zoning Appeals shall not grant a Special Exception unless and until: 903.11 A written application for a Special Exception is submitted indicating the sections of this ordinance under which the Special Exception is sought and stating the grounds on which it is requested; 903.12 A public hearing has been held; and 903.13 The Board determines that the Special Exception requested meets the general and specific conditions outlined in Article VI. 903.2 Variance: The Board of Zoning Appeals shall not grant a Variance unless and until the following conditions are satisfied: 903.21 A written application for a Variance is submitted demonstrating all of the following points: a. That special conditions and circumstances exist which are peculiar to the land, structure, or building involved and which are not applicable to other lands, structures or buildings in the same district; 142 b. That literal interpretation of the provisions of this ordinance would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance; c. That the special conditions and circumstances do not result from the actions of the applicant; and d. That granting the Variance will not confer on the applicant any special privilege that is denied by this ordinance to other lands, structures, or buildings in the same zone. No nonconforming use of neighboring lands, structures, or buildings in the same zone, and no permitted use of lands, structures, or buildings in other zones shall be considered grounds for the issuance of a Variance. 903.22 A public hearing has been held: 903.23 The Board of Appeals shall make findings that the requirements of Section 903.21 have been met by the applicant for a Variance. 903.24 The Board of Appeals shall further make a finding that the reasons set forth in the application justify the granting of the Variance, and that the Variance is the minimum Variance that will make possible the reasonable use of land, building, or structure; 903.25 The Board shall further make a finding that the granting of the Variance will be in harmony with the general purpose and intent of this Ordinance, and will not be injurious to the neighborhood, or otherwise detrimental to the public welfare. 903.26 In granting Variance, the Board of Appeals may prescribe appropriate conditions and safeguards in conformity with this Ordinance. Violation of such conditions and safeguards, when made a part of the terms under which the Variance is granted, shall be deemed a violation of this Ordinance. 903.27 Under no circumstances shall the Board of Appeals grant a Variance to allow a use not permissible under the terms of this Ordinance in the zone involved, or any use expressly or by implication prohibited by the terms of this Ordinance in said zone. SECTION 904. DECISIONS OF THE BOARD OF APPEALS The Board of Appeals shall decide any appeal or request for a Special Exception within fifteen (15) days from the date of the hearing. SECTION 905. TIME LIMIT A decision of the Board granting a Variance or a Special Exception shall be valid for a period of one year, unless a Building Permit for such erection or alteration is obtained within this period and the erection or alteration is started and proceeds to completion in accordance with the terms of the decision. No decision of the Board permitting the use of a building or land shall be valid for a 143 period longer than one year, unless such use is established with said period, except that, where such use is dependent upon the erection or alteration of a building, such order shall continue in force and effect if a Building Permit for such erection or alteration is obtained within said periods, and such erection or alteration is started and proceeds to completion in accordance with the terms of the decision. SECTION 906. DUTIES OF BUILDING INSPECTOR, BOARD OF APPEALS, MEMBERS OF THE CITY COUNCIL, AND COURTS ON MATTERS OF APPEAL It is the intent of this Ordinance that all questions of interpretation and enforcement shall be first presented to the Building Inspector and through him to the Planning Commission, and that such questions shall be presented to the Board of Appeals only on appeal from the decision of the Building Inspector, and that recourse from the decisions of the Board of Appeals shall be to the courts as provided by law and particularly by Sections 59 through 65, Article 24, Chapter 8 of the Code of West Virginia. It is further the intent of this Ordinance that the duties of the members of the City Council in connection with this Ordinance shall not include hearing and deciding questions of interpretation and enforcement that may arise. The procedure for deciding such questions shall be as stated in this section and this Ordinance. Under this Ordinance the members of the City Council shall have only the duties of (1) considering and adopting or rejecting proposed amendments or the repeal of this Ordinance, as provided by law, and (2) of establishing a schedule of fees and charges. SECTION 907. APPEALS FROM DECISIONS OF BOARD OF ZONING APPEALS 907.1 Petition of Writ of Certiorari from Decision: Every decision of the Board of Zoning Appeals shall be subject to review by certiorari. Any person or persons, firm, corporation, or governmental unit jointly or severally aggrieved by any decision of the Board of Zoning Appeals, may present to the Circuit Court of Berkeley County a petition duly verified, setting forth that such decision is illegal. The petition shall be presented to the Circuit Court within thirty (30) days after the date of the decision and the order of the Board of Zoning Appeals complained of. The notice to adverse parties and the procedure of the Circuit Court and the Board of Zoning Appeals shall be as provided by the laws of West Virginia and particularly by Section 59 through 65, Article 24, Chapter 8 of the Code of West Virginia. 907.2 Action of the Court: The Circuit Court may decide and determine the sufficiency of the statements of illegality contained in the petition without further pleadings and may make its determination and render its judgment with reference to the legality of the decision of the Board of Zoning Appeals on the facts set out in the return of the writ of certiorari. If it shall appear to the Circuit Court that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return of writ of certiorari, but no such review shall be by trial de novo. 144 907.3 Appeals from Court Judgment: An appeal may be taken to the Supreme Court of Appeals of West Virginia from the final judgment of the Circuit Court reversing, affirming or modifying the decision of the Board of Zoning Appeals in the same manner, and upon the same terms, conditions and limitations as appeals in other civil action. 145 ARTICLE X ADMINISTRATION OF THE HISTORIC PRESERVATION DISTRICT 146 ARTICLE X: ADMINISTRATION OF THE HISTORIC PRESERVATION DISTRICT SECTION 1000. PURPOSE The City of Martinsburg, having been designated as a Historic Resource District by the National Register, Department of Interior and certain area and structures within the City have been listed on the National Register of Historic Places, this Article outlines the procedure for establishment of a historical district or districts. The establishment of a historical district is intended to promote the educational, cultural, economic and general welfare of the public through the preservation of buildings, sites, monuments, structures, and areas of historic or architectural interest or importance; through their protection, maintenance, and development as historic landmarks and their recognition as such in the history of the city, state, and nation; to establish and improve property values; and to strengthen the local economy. SECTION 1001. ESTABLISHMENT OF A HISTORIC DISTRICT 1001. Appointment of Historic Review Commission: Prior to the establishment of a Historic District, the City Council shall appoint a Historic Review Commission. The Commission shall consist of nine (9) members who shall be residents of Berkeley County. They shall be chosen, as far as possible, from the membership of the Berkeley County Historical Society, Martinsburg Historic Landmarks Commission, and other cultural, educational, business, and civic groups concerned with the preservation of the City’s character. The Historic Preservation Review Commission shall administer the historic preservation district or districts. 1001.2 Proposed Historic District: The Review Commission shall investigate the area proposed to be included in a Historic District or Districts, gathering such information as can be obtained in a reasonable period. The study shall include consideration of the historical or architectural importance of buildings or sites in the area, the present use and condition of buildings and land, and the relation of the proposed historic district to surrounding areas. The Review Commission shall, after investigation, prepare and submit a report to the City Council on the historical significance of the buildings, structures, sites, monuments, areas, and landmarks to be included in the proposed historic district and shall outline the boundaries of the proposed historic district on a map. 1001.3 Preliminary City Council Review: The City Council shall review the report of the Historic Preservation Review Commission, considering any review comments, and shall indicate tentative approval of the report and the proposed historic preservation district, or shall return the report for additional study and revision. 1001.4 Application for a Zoning Map Amendment: Following tentative approval of the historic district area by the City Council, the Review Commission shall make application for a zoning map amendment for a historic preservation district classification for the proposed historic area, following the procedures outlined 147 in Article XI of this Ordinance. If more than one historic preservation district is proposed, a separate application shall be prepared for each district. 1001.5 Hearing Procedure: The Planning Commission shall hold a public hearing on the proposed Historic Preservation District map amendment application, following the procedure outlined in Article IX. An adequate number of notices of the hearing (at least one per block) shall be posted within the area of the proposed historic district to inform the public, but it shall not be necessary to post a notice on every property. After the hearing, the Planning Commission shall send its report to the City Council for consideration. 1002. HISTORIC PRESERVATION REVIEW COMMISSION If the City Council approves the creation of the Historic Preservation District, the boundaries of the district shall be indicated on the Official Zoning Map in accordance with the procedure outlined in Section 301 of this Ordinance. 1002.1 Terms and Vacancies: Upon the creation of the Historic Preservation Review Commission, the members shall be appointed for the following terms: three for a term on one year; three for a term of two years, three for a term of three years. The terms shall expire on the first day of January of the first, second, or third year, respectively, following their appointment. Thereafter, as their terms expire, each new appointment shall be for a term of three years. If a vacancy occurs, by resignation or otherwise, among the members of the Commission, the City Council shall appoint a member for the unexpired term. 1002.2 Organization and Administration: At the first meeting of each year, the Historic Preservation Review Commission shall elect a chairman and vice chairman from its members. The vice chairman shall have authority to act as chairman during the absence or disability of the chairman. A majority of members of the Historic Preservation Review Commission shall constitute a quorum. No action of the Commission is official, however, unless authorized by a majority of the Commission. The Historic Preservation Review Commission may appoint and fix the compensation of a secretary and such employees and technical consultants as are necessary for the discharge of its duties, subject to appropriations by the City Council. The Historic Preservation Review Commission may accept donations, gifts, and grants to further the purpose for which it is created. The City Council shall provide the Commission with suitable offices for holding of meetings and the preservation of plans, maps, documents and accounts, and shall provide by appropriation a sum sufficient to defray the reasonable expenses of the Commission. The Commission shall submit an annual report of its activities to the City Council. 1002.3 Proceedings of the Historic Preservation Review Commission: The Historic Preservation Review Commission shall adopt rules necessary to the conduct of its affairs and in keeping with the provisions of this Ordinance. Meetings shall be held at the call of the chairman and at such other times as the Commission may determine. All meetings shall be open to the public. The Commission shall keep minutes of its proceedings, examinations, and other official actions and 148 shall record the vote of all actions taken. All minutes and records shall be filed in the office of the Commission and shall be a public record. 1002.4 Expanded or New Historic Districts: The Historic Preservation Review Commission may, after its formation, propose the expansion of a historic preservation district or formation of new and separate historic preservation districts. The procedure for expanding or establishing a new historic district shall be the same as outlined in Section 1001. SECTION 1003. PLAN REVIEW REQUIREMENTS The Historic Preservation Review Commission shall review all plans for the construction, alteration, repair, and designs including painting, moving, or demolition of structures in the historic preservation district. No building or structure exposed to public view including fences, boundary walls, signs, light fixtures, steps and paving or other appurtenant fixtures, public or private, shall be erected, altered, restored, moved, or demolished within a historic preservation district until after an application for a Certificate of Appropriateness as to exterior architectural features has been submitted to and approved by the Commission. For the purposes of this Ordinance, “exterior architectural features” shall include the color, architectural style, general design, and general arrangement of the exterior of a structure, including the kind of texture of the building materials, and type and style of all windows, doors, light fixtures, signs, and other appurtenant fixtures. The style, material, size and location of all signs within a historic preservation district shall also be under the control of the Historic Review Commission. All work shall be designed to be compatible and harmonious and consistent with original scale, style and character of the structure. The Commission shall not consider interior arrangement or use, but shall consider the relationship of the exterior of the building or structure concerned with all others in the historic preservation district, so as to avoid incongruity and to preserve the overall character of the area. New buildings need not necessarily be in any one historical style, as long as the scale and design of the building, and the materials used, are in harmony with the overall character of the historic area. SECTION 1004. PROCEDURE FOR PLAN REVIEW 1004.1 Application for Building Permit: Application for a Building Permit to construct, alter, repair, design, move, or demolish any structure in a historic preservation district shall be made to the Building Inspector. Plans shall be submitted showing the structure in question and also showing its relation to adjacent structures. The Historic Preservation Review Commission may prepare forms for use of the Building Inspector that will include provisions for the information needed by the Commission. Upon the filing of such application, the Building Inspector shall immediately notify the Historic Preservation Review Commission of the receipt of such application and shall transmit it, together with accompanying plans and other information to the Commission. In the event the application is for demolition of a structure 149 or erection of a new structure, the Building Inspector shall establish a public hearing date to be held by the Review Commission and conduct said hearing according to procedures as outlined in Section 902 of this Ordinance. 1004.2 Review: The Historic Preservation Review Commission shall consider the application. Within not more than forty-five (45) days after the filing of an application, the Commission shall pass upon it, and shall give written notice of its decision to the applicant. If the application is approved, the Commission shall issue a Certificate of Appropriateness to the applicant for a Building Permit. The certificate should be signed by the Chairman, and transmitted to the Building Inspector. The Commission shall keep a record of all Certificate of Appropriateness that have been issued. No Building Permit shall be issued by the Building Inspector for work in a historic preservation district without a Certificate of Appropriateness from the Historic Preservation Review Commission. If the Commission disapproves of the application, it shall state its reasons for doing so and shall transmit a record of such action and reasons therefore in writing to the Building Inspector and to the applicant. The Commission may advise what it considers is proper if it disapproves of the plans submitted. The applicant, if he so desires, may make modifications to his plans and shall have the right to resubmit his application at any time after so doing. The Failure of the Historic Review Commission to approve or disapprove an application within forty-five (45) days from the date of application for the Building Permit, unless otherwise mutually agreed upon by the applicant and Commission, shall be deemed to constitute approval and the Building Inspector shall proceed to process the application without regard to a Certificate of Appropriateness. After the Certificate of Appropriateness has been issued and the Building Permit granted to the applicant, the Building Inspector shall from time to time inspect the construction, alteration, or repair approved by such certificate and shall take such action as is necessary to ensure compliance with the approved plans. SECTION 1005. HP HISTORIC PRESERVATION DISTRICT A. The exterior of the premises and the condition of accessory structures shall be maintained so that the appearance of the premises and the structures thereon shall reflect a reasonable level of maintenance. The exterior of every structure or accessory structure (including fences, signs, and storefronts) shall be maintained in good repair and all surfaces thereof shall be kept painted or white washed where necessary for the purpose of preservation and appearances. All surfaces shall be maintained free of broken glass, loose shingles, crumbling masonry, excessive peeling paint or other conditions reflective of deterioration or inadequate maintenance to the end that the property itself may be preserved and safe and fire hazards eliminated. 150 B. All windows exposed to the public view shall be kept clean and free of marks of foreign substance except when necessary in the course of changing displays. No storage materials, stock, or inventory other than items for display shall be permitted in window display areas ordinarily exposed to public view unless said areas are first screened from public view by drapes, Venetian blinds or other permanent rendering of the windows opaque to the public view. All screening of interiors shall be maintained in clean materials and in good state of repair. This applies to both occupied and unoccupied structures. C. All permanent signs and billboards exposed to public view permitted by reason of other regulations or as a lawful nonconforming use shall be maintained in good repair. Any signs that have excessively weathered or faded or those upon which the paint has excessively peeled or cracked shall with their supporting members, be removed forthwith, or put into a good state of repair. All nonoperative or broken electrical signs shall be repaired or shall, with their supporting members, be removed forthwith. D. Any awning or marquee and its accompanying structural members that extend over any street, sidewalk, or any other portion of the premises shall be maintained in good repair and shall not constitute a nuisance or a safety hazard. In the event such awnings or marquees are not properly maintained in accordance with the foregoing, they shall, together with their supporting members, be removed forthwith. In the event said awnings or marquees are made of cloth, plastic or of similar material, said cloth or plastic where exposed to public view shall not show evidence of excessive weathering, discoloration, ripping, tearings, or other holes. Nothing herein shall be construed to authorize any encroachment on sidewalks, or other parts of the public domain, except as permitted under other statues, Ordinance, or regulations. E. Solid or permanently enclosed or covered storefronts shall not be permitted, unless treated as an integral part of the building façade using wall materials and window detailing compatible with the upper floors. All damaged, sagging, or otherwise deteriorated storefronts, show windows, or entrances shall be repaired or replaced. F. Rear and side walls shall be repaired and painted to present a neat and fresh appearance. Rear walls should be painted to cover evenly all miscellaneous patched and filled areas or be stuccoed to present an even and uniform surface. Side walls in public view shall be finished so as to be harmonious with the front of the building. G. Chimneys, elevator penthouses, or any other auxiliary structures on the roofs shall be repaired and cleaned as required for rear and side walls. Any construction visible from the street or from other buildings shall be finished so as to be harmonious with other visible building walls. 1005.1 Compliance: All persons, corporations, partnerships, owners, lessees, or lessors which own, lease, or occupy real estate and improvements located or constructed upon real estate located within the Geographical Boundaries 151 governed by Article 10 of the City of Martinsburg Zoning Ordinance, known as “Administration of the Historic Preservation Districts:” shall comply with the provisions, articles, sections, and requirements of said Article 10 as it requires affirmative action to be taken by said persons, corporations, partnerships, owners, lessees, or lessors, within three years of its date of passage into law, that is, by April 8, 1985, subject to the following exception: All sections of Article 10 of the Martinsburg Zoning Ordinance dealing with administrative procedures of any governmental bodies, including the Historic Preservation Review Commission, and including any building or repair applications required to be made to or approved by governmental bodies, including the Historic Preservation Review Commission, shall be in effect immediately upon date of passage of this Ordinance, that is, as of April 8, 1982. SECTION 1006. VARIANCES Due to peculiar conditions of design and construction in historic neighborhoods where structures were often built close to the lot lines, it may be the public interest to retain a neighborhood’s historic appearance by making Variances to normal yard requirements. Where, by reason of topographical conditions, irregularly shaped lots, or because of unusual circumstances applicable solely to the particular applicant, strict enforcement of the provisions of this Ordinance would result in serious undue hardship, the Historic Preservation Review Commission shall have the power to vary or modify strict adherence to this Ordinance; provided always that its requirements ensure harmony with the general purposes of the Ordinance, and will not seriously effect neighboring properties or the historic preservation district as a whole. SECTION 1007. EXCEPTIONS Nothing in this Article shall be construed to prevent ordinary maintenance or repairs which do not involve a change of design, materials, or outward appearance of a building or structure in a historical preservation district; nor to prevent the construction, reconstruction, alteration, or demolition of any such feature that is required by the public safety because of an unsafe or dangerous condition. The requirements of this article do not apply to work which was begun or for which a permit was issued prior to the establishment of the historic preservation district. SECTION 1008. ENFORCEMENT The City of Martinsburg is authorized and empowered to enforce Article 10 of the City of Martinsburg, in addition to prosecution under terms of the City Code, by applying for injunctive relief or for a writ of mandamus in the Circuit Court of Berkeley County, West Virginia. Violation of any provision of Article X of the City of Martinsburg Zoning Ordinance shall be a misdemeanor, punishable by a fine of $300.00 for each separate offense. Each separate day a violation of Article 10 occurs shall be considered a separate offense. 152 SECTION 1009. APPEALS Appeal of the actions and decision of the Historic Preservation Review Commission shall be made directly to the Martinsburg City Council, which shall have the authority to review, amend, affirm, reject or deny the actions and decisions of the Historic Preservation Review Commission. The decision of City Council shall be made in writing within thirty (30) days of hearing of the appeal. Decisions of the City Council may be appealed to the Circuit Court of Berkeley County, West Virginia. Introduced: March 24, 1982 Adopted: April 8, 1982 ____________________________________ Mayor 153 AN ORDINANCE TO PROVIDE FOR THE DELAY OF 30 DAYS FOR THE ISSUANCE OF A DEMOLITION PERMIT FOLLOWING A DECISION OF THE HISTORIC REVIEW COMMISSION OR THE CITY COUNCIL PERMITTING THE DEMOLITION OF PROPERTY WITHIN THE HISTORIC PRESERVATION DISTRICT BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MARTINSBURG: Appeal of the actions and decisions of the Historic Preservation Review Commission shall be made directly to the Martinsburg City Council, which shall have the authority to review, amend, affirm, reject, or deny the actions and decisions of the Historic Preservation Review Commission. If the City Council reverses the Historic Preservation Review Commission’s decision to deny issuance of a Certificate of Appropriateness for the demolition of a building or structure, within the historic preservation district, no permit for demolition shall be issued by the Building Inspector for a period of thirty (30) days following Council’s decision. The decision of the City Council shall be made in writing within thirty (30) days of hearing of the appeal. Decisions of the City Council may be appealed to the Circuit Court of Berkeley County, West Virginia. 154 155 ARTICLE XI AMENDMENTS 156 ARTICLE XI: AMENDMENTS SECTION 1100. ZONING ORDINANCE AMENDMENTS The City Council of Martinsburg may, from time to time, amend, supplement, change, or repeal the regulations and districts established by this Ordinance. Amendment applications may be either proposals for amendment of the text or amendment of the zoning map. SECTION 1101. GENERAL AMENDMENT APPLICATION PROCEDURE Applications for zoning text or map amendments shall be submitted in duplicate to the Planning Commission, through the Building Inspector, on forms supplied by the Planning Commission. The Building Inspector shall not accept an application if it fails to conform to all applicable requirements of this article, including the payment of any fee established by the City Council, nor if the application is for reclassification of the whole or any part of land, the reclassification of which has been approved or denied on its merits within twelve (12) months prior to the date of submission of the application. After acceptance, an application for a map amendment shall not be modified or amended as to the area proposed to be reclassified or the class of districts requested. SECTION 1102. TEXT AMENDMENT PROCEDURE Application for amendment of the zoning ordinance text may be made by any interested person or governmental agency. The application shall set forth the new text to be added and the existing text, if any, to be deleted. SECTION 1103. MAP AMENDMENT PROCEDURE Application for amendment of the zoning map may be made only by a governmental agency, including the City Council and the Planning Commission, or by a person or person with a financial, contractual, or proprietary interest in fifty (50) percent or more of the area included in the application. A map amendment application may be for a more or less intensive use and shall cover a single contiguous area, all portions of which are proposed to be classified in one district. 1103.1 Form of Map Amendment Application: The zoning map application shall be in duplicate in such a form as prescribed by the Planning Commission, and shall include: 1103.11 A written statement, specifying the following: a. The location of the land proposed to be reclassified, including the street number, if any; b. A description by metes and bounds, courses and distances, of the land, or if the boundaries conform to lot boundaries within a subdivision for 157 which a plat is recorded in the county land records, a lot, block, and subdivision designation with appropriate plat reference; c. The present classification and classification proposed for such land; d. The name and address of the owner of the land; and e. The area of the land proposed to be reclassified, stated in square feet if less than (1) acre and in acres if (1) acre or more. 1103.12 An Identification plat, prepared by a civil engineer, surveyor, or other competent person, and certified thereon by him to be correct and in conformity with this section, showing by metes and bounds, courses and distances, the land proposed to be reclassified, or if the boundaries confirm to lot boundaries within a subdivision for which a plat is recorded among the county land records, then a copy of such plat, the land proposed to be reclassified appearing in a color distinctive from that of other lands shown on the plat. 1103.13 A vicinity map, covering the area within at least one thousand (1,000) feet of the boundaries of the land proposed to be reclassified showing the existing zoning classification of all land appearing on the map. SECTION 1104. PREHEARING PROCEDURE 1104.1 Establishment of Hearing Date: Upon accepting an amendment application, the Building Inspector shall set a date for a public hearing by the Planning Commission, at a specified place and date. 1104.2 Publication of Notice: The Building Inspector shall cause to be published once, at the expense of the applicant, a notice of the public hearing. This notice shall be published in a paper of general circulation in the City not less than fifteen (15) days prior to the date set for the hearing. The notice shall include the application number and the date, time and place of the hearing. The notice shall also include: a. A summary of the amendment, if a Text Amendment. b. The location of the property, its area, name of owner, change of classification requested, and the application number, if a Map Amendment. 1104.3 Posting of Property: Within seven (7) days after acceptance of an application for a Map Amendment, the Building Inspector shall erect a sign on the land proposed to be reclassified. Such a sign shall be erected within ten (10) feet of whatever boundary line of such land abuts the most traveled pubic road and if no public road abuts thereon, then facing in such a manner as may be most readily seen by the public. The sign shall bear conspicuously the words: ZONING RECLASSIFICATION APPLICATION NO____FROM____TO____, PUBLIC HEARING__________. The blanks shall be filled in with the assigned application number and the classification sought. If the land sought to be 158 reclassified lies within more than one block as shown on a plat recorded in the county land records, then a sign shall be erected on the land in each such block. The sign(s) shall be maintained at all times by the applicant until a decision on the application has been made public by the City Council. It shall be unlawful for any person to remove or tamper with such a sign during the period it is required to be maintained. 1104.4 Availability of Applications: All application files in the custody of the Building Inspector shall be open to public inspection during regular office hours. They shall not be removed from the Building Inspector’s office, except pursuant to court order of by a member of the City Council or Planning Commission. SECTION 1105. HEARING PROCEDURE AND PLANNING COMMISSION REPORT The Planning Commission shall hold a public hearing on the date established. Any interested person shall have the right to submit oral or written testimony at the hearing. There shall be a complete stenographic report or mechanical recording of the testimony at the hearing, and a typewritten transcript thereof with all exhibits admitted at the hearing, including the application, shall promptly be incorporated by the Building Inspector in the application file and shall be considered a part of the record on the application. Evidence that is immaterial, irrelevant, or unduly repetitious may be excluded. Within thirty (30) days after the public hearing the Planning Commission shall by resolution, recommend, approve or rejection of the proposed zoning amendment and shall forward their recommendation to the City Council The Planning Commission shall also forward the complete application record, including the transcript of the public hearing. Whenever the Commission reports on such an amendment it shall point out in its report the relation of the proposed change to the purposes of this Ordinance. The report shall further point out for the information and guidance of the council of the City of Martinsburg, where and how the facts existing at the time of the proposed change warrant such an amendment to the district boundaries or to the rules of the Ordinance. SECTION 1106. ACTION OF CITY COUNCIL At the meeting of the City Council following receipt of the recommendation from the Planning Commission, the Council shall proceed to consideration of the proposed zoning amendment. An application for a Map or Text Amendment shall be decided on the basis of the evidence of record. Such application shall be either approved or denied on the merits or dismissed, or allowed to be withdrawn. The City Council may dismiss any such application if it finds that: a. The application does not conform to any stated procedural requirement of this article; 159 b. The application is not acceptable for filing because it was previously filed within twelve (12) months, or; c. The application is frivolous or filed for purposes of harassment. When passing on amendments to this Ordinance, the Council of the City of Martinsburg shall give consideration to the purposes of this Ordinance outlined in Section 103. If the application is not dismissed or allowed to be withdrawn as herein provided, it shall be either approved or denied on the merits, in which case no application for the reclassification of all or any part of the land which is the subject of the application shall be accepted for filing for twelve (12) months following the date of such approval or denial on merits. No application for a Map Amendment shall be approved for a class of district other than that applied for. No application for a Map Amendment shall be approved for a greater area than that applied for, but an application may be approved for a smaller area than that applied for if the reclassification of such smaller area is supported by the evidence or record and if such smaller area is accurately delineated in the record. The decision of the City Council approving, denying, or dismissing any application for a map or text amendment shall be rendered within sixty (60) days of the original hearing (unless such time is extended by resolution or the City Council) and shall be in the form of an Ordinance adopted by the City Council in open session by a majority of those voting on roll call by yeas and nays and appearing in the minutes of the meeting. In case, however, of a protest against a Map Amendment signed by the owners of 20 percent or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending one hundred (100) feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the City Council. Notice of the action taken shall be promptly mailed by the Building Inspector to the applicant and to all persons who spoke at the hearing, as shown by the hearing transcript. 160 ARTICLE XII ORDINANCE PROVISIONS 161 ARTICLE XII: ORDINANCE PROVISIONS SECTION 1200. PROVISIONS OF ORDINANCE ARE MINIMUM REQUIREMENTS In their interpretation and application, the provisions of this Ordinance shall be held to be minimum requirements, adopted for the promotion of the public health, safety, morals and general welfare. Wherever the requirements of this Ordinance require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statue or local Ordinance or regulation, the provisions of this Ordinance shall govern. Whenever the provisions of any other statute or local Ordinance or regulation require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standard than are required by this Ordinance, the provisions of such statute or local Ordinance or regulation shall govern. SECTION 1201. VALIDITY The provisions of this Article are supplemental to and do not abrogate the powers extended to agencies, bureaus, departments, commissions, divisions or officials of the state government by other state statute and these powers shall remain in full force and effect. Powers of supervision and regulation by such divisions of the state government over the city and other local governmental units, individuals, firms or corporations also are not abrogated and shall continue in full effect. SECTION 1202. GENERAL REPEALER AND EFFECTIVE DATE All ordinances or parts of ordinances inconsistent with the provisions of this Ordinance are hereby repealed to the extent necessary to give this Ordinance full force and effect, except as provided in Section 1201. This Ordinance shall take effect from the date of its approval and passage by the City Council. SECTION 1203. SEPARABILITY CLAUSE In case it shall be judicially determined that any word, phrase, clause, item sentence, paragraph or section, or the application thereof to any person or circumstance, is invalid, the remaining provisions and the application of such provisions to other persons or circumstances shall not be affected thereby, the Council of the City of Martinsburg hereby declaring that they would have ordained the remaining provisions of this Ordinance without the word, phrase, clause, item sentence, paragraph, or section, or the application thereof, so held invalid. 162 163 AN ORDINANCE FOR THE PROPER MAINTENANCE OF STORM WATER, SEDIMENT, AND SOIL EROSION CONTROL IN THE CITY OF MARTINSBURG, BERKELEY COUNTY, WEST VIRGINIA 164 AN ORDINANCE FOR THE PROPER MAINTENANCE OF STORM WATER, SEDIMENT, AND SOIL EROSION CONTROL IN THE CITY OF MARTINSBURG, BERKELEY COUNTY, WEST VIRGINIA 165 CITY OF MARTINSBURG STORM WATER, SEDIMENT, AND SOIL EROSION ORDINANCE TABLE OF CONTENTS ______________________________________________________________________ ARTICLE PAGE 1.0 PURPOSE AND AUTHORITY......................................................................... 165 2.0 DEFINITIONS .................................................................................................. 166 3.0 SCOPE ............................................................................................................. 168 3.1 EXEMPTIONS ........................................................................................... 168 4.0 CONTENTS OF THE STORM WATER MANAGEMENT PLAN ................... 168 5.0 STORM WATER MANAGEMENT CRITERIA ................................................ 170 5.1 MINIMUM CONTROL REQUIREMENTS ................................................. 170 5.2 STORM WATER MANAGEMENT MEASURES ....................................... 170 5.3 SPECIFIC DESIGN CRITERIA ................................................................. 170 6.0 REVIEW AND APPROVAL OF STORM WATER MGMT PLANS ................. 173 6.1 WAIVERS................................................................................................... 173 6.2 VARIANCES .............................................................................................. 173 7.0 PERMIT REQUIREMENTS ............................................................................. 174 7.1 PERMIT SUSPENSION AND REVOCATION .......................................... 174 7.2 PERMIT CONDITIONS.............................................................................. 174 8.0 SURETY REQUIREMENTS ............................................................................ 174 8.1 TYPE OF SECURITY ................................................................................ 174 8.2 CONDITIONS OF SURETY ...................................................................... 174 9.0 INSPECTION SCHEDULE AND REPORTS................................................... 175 9.1 FINAL INSPECTION REPORTS ............................................................... 175 9.2 INSPECTION FOR PREVENTIVE MAINTENANCE ................................ 175 10.0 MAINTENANCE ............................................................................................... 176 10.1 MAINTENANCE AGREEMENT .............................................................. 176 10.2 MAINTENANCE RESPONSIBILITY ....................................................... 176 11.0 APPEALS ......................................................................................................... 176 11.1 PETITION OF WRIT OF CERTIORARI FROM DECISION ................... 176 11.2 ACTION OF THE COURT ....................................................................... 177 11.3 APPEALS FROM COURT JUDGMENT ................................................. 177 12.0 SEVERABILITY................................................................................................ 177 13.0 PENALTIES ..................................................................................................... 177 14.0 ADOPTION....................................................................................................... 178 166 1.0 PURPOSE AND AUTHORITY The purpose of this Ordinance is to establish minimum requirements and procedures to control the adverse impact associated with increased storm water runoff. Proper management of storm water runoff will minimize damage to public and private property, reduce the effects of development on land and stream channel erosion, assist in the attainment and maintenance of water quality standards, reduce flooding and maintain after development as nearly as possible the predevelopment runoff characteristics. The provisions of this Ordinance are adopted under the authority of the Code of the Mayor and Council of the City of Martinsburg and shall apply to all development occurring within the incorporated area of the City of Martinsburg. The application of this Ordinance and the provisions expressed shall not be deemed a limitation or repeal of any other powers granted by State stature. The City Planner or an authorized representative shall be responsible for this coordination and enforcement of the provisions of this Ordinance. 167 2.0 DEFINITIONS For the purpose of this Ordinance, the following definitions describe the meaning of the terms used in this Ordinance. Agency: means the Martinsburg Planning Commission, the Martinsburg Planning and Zoning Department or a designated representative, and the Berkeley County (USDA) Soil Conservation Service. Adverse impact: means any deleterious effects on waters or wetlands, including their quality, surface area, species composition, aesthetic or usefulness for human or natural uses that are or may potentially be harmful or injurious to human health, welfare, safety or property, to biological productivity, diversity or stability of life or property, including outdoor recreation. Agricultural Land Management Practices: those standards and procedures used in the cultivation of land in order to further crop and live stock production and conservation of related soil and water resources. Applicant: any person, firm or governmental agency who executes the necessary forms to procure official approval of a project or a permit to carry out construction of a project. Aquifer: a porous water bearing geologic formation generally restricted to materials capable of yielding an appreciable supply of water. Clearing: the removal of trees and brush from the land but shall not include the removal of topsoil and the ordinary mowing of grass. Detention Structure: a permanent structure for the temporary storage of runoff that is designed so as not to create a permanent pool of water. Development of Land: to change the physical characteristics and runoff characteristics of a parcel of land in conjunction with residential, commercial, industrial or institutional construction or alteration. Drainage Area: that area contributing runoff to a single point measured in a horizontal plane, which is enclosed by a ridge line. Easement: a grant or reservation by the owner of land for the use of such land by others for a specific purpose or purposes. The purpose or purposes must be included in the conveyance of land affected by such easement. Exemption: those land development activities that are not subject to the Storm Water Management requirements contained in this Ordinance. Flow Attenuation: prolonging the flow time or runoff to reduce the peak discharge. Grading: any act by which soil is cleared, stripped, stockpiled, excavated, scarified, filled or any combination thereof. 168 Infiltration: the passage or movement of water into the soil surface. Off Site Storm Water Management: the design and construction of systems necessary to control storm water outside the development area. On Site Storm Water Management: the design and construction of systems necessary to control storm water within an immediate development. Porous Paving: an open-graded asphaltic or reticular concrete or other material that allows water to pass through it. Retention Structure: a permanent structure that provides for the storage of runoff by means of a pool of water; essentially a pond. Sediment: soils or other surface materials transported or deposited by the action of wind, water, ice or gravity as a product of erosion. Site: any tract, lot or parcel of land or combination of tracts, lots, or parcels of land that are in one ownership, or are contiguous and in diverse ownership where development is to be performed as part of a unit, subdivision or project. Stabilization: the prevention of soil movement by any of various vegetative and/or structural means. Storm Water Management, Sediment and Soil Erosion Control: a. for Quantitative Control: a system of vegetative and structural measures that control the increased volume and rate of surface runoff caused by manmade changes to the land; and b. for Qualitative Control: a system of vegetative, structural and other measures that reduce or eliminate pollutants that might otherwise be carried by surface runoff. Storm Water Management Plan: a set of drawings or other documents submitted as a prerequisite to obtaining a Storm Water Management approval, which contain all of the information and specifications pertaining to Storm Water Management. (See Section 4.2) Stripping: any activity that removes topsoil. Variance: the modification of the minimum Storm Water Management requirements for specific circumstances such that strict adherence of the requirements would result in unnecessary hardship and not fulfill the intent of this Ordinance. Waiver: the relinquishment from Storm Water Management requirements by the Martinsburg Planning Commission and the City Planner for a specific development on a case-by-case review basis. 169 Water Course: any natural or artificial stream, river, creek, ditch, channel, canal, conduit, culvert, drain, gully, ravine or wash, in and including any area, or adjacent to an area, which is subject to inundation by reason of overflow or flood water. Watershed: the total drainage area contributing runoff to a single point. Wetlands: an area that has saturated soils or periodic high groundwater levels and vegetation adapted to wet conditions and periodic flooding. 3.0 SCOPE No person shall develop any land for residential, commercial, industrial or institutional uses without having provided for appropriate storm water, sediment and soil erosion control measures that control or manage runoff from such developments, except as provided within this section. 3.1 EXEMPTIONS The following development activities are exempt from the provisions of this Ordinance and the requirements of providing Storm Water Management: A. Agricultural land management activities; B. Additions or Modifications to existing residential structures that do not exceed the maximum allowable lot coverage as stipulated in the City of Martinsburg Zoning Ordinance. D. Developments that do not disturb more than 3,000 square feet of land area. Disturb means to CLEAR, GRADE, or STRIP. (See definitions.) E. Residences on single lots subject to the following criteria: 1. If Storm Water Management review has been approved for the subdivision; 2. On individual lots in areas where development is already in place. This is subject to review by the City Planner. The City Planner may refer uncertain cases to the Martinsburg Planning Commission. 4.0 CONTENTS OF THE STORM WATER MANAGEMENT The developer is responsible for submitting a storm water plan that meets the design requirements provided by this Ordinance. The plan shall include sufficient information to evaluate the environmental characteristics of the affected areas, the potential impacts of the proposed development on water resources, and the effectiveness and acceptability of measures proposed for managing storm water runoff. The developers or builders engineer shall certify on the drawings that all clearing, grading, drainage, or construction and development shall be conducted in strict accordance with the plan. The minimum information 170 submitted for support of a Storm Water Management plan or application for a waiver shall be as follows: A. Site characteristics 1. Topography survey showing existing and proposed contours, at two foot intervals, including the immediate downstream area if it is determined by the City Planner or an authorized representative that such information will be required for an adequate review of the plans and the downstream area. 2. Description of all watercourses, impoundments, and wetlands on or adjacent to the site or into which storm water flows. The description shall include the runoff characteristics as determined from actual onsite investigations, interviews with property owners in the immediate vicinity, or interviews with any state or local agency that may have knowledge of the affected area. 3. Soil investigation including boring, if available or if required by the Berkeley County USDA Soil Conservation Service, City Planner or an authorized representative, to determine adequacy of proposed infiltration facilities. 4. Delineation of 100-year flood plains, if applicable. 5. Structure classification (SCS Standard 378). 6. Location of utilities, both public and private. B. Computations 1. Hydrology 2. Hydraulic 3. Storm Water Management structures C. Storm Water Management plans: 1. Vicinity map. 2. Drainage area map showing the watershed boundaries, drainage area, and storm water flow paths. 3. Proposed improvements including existing and proposed contours at two foot intervals, location of buildings or other structures, impervious surfaces, storm drain facilities, and vegetative cover. 4. Benchmarks used for design. 5. Structural details for all components of the proposed drainage systems and Storm Water Management facilities. 6. Timing schedules and sequences of development clearing, including stripping, rough grade, construction, final grading, and vegetative stabilization. 171 7. Location of existing and proposed easements and/or right-of-way. 8. Other information may be required. 5.0 STORM WATER MANAGEMENT CRITERIA 5.1 MINIMUM CONTROL REQUIREMENTS A. All developments shall provide management measures necessary to maintain the post-development peak discharges for a 24-hour, 2- and 10-year frequency storm event at a level that is equal to or less than the respective 24-hour, 2and 10-year predevelopment peak discharge rates, through Storm Water Management practices that control the volume, timing and rate of flows. Where runoff is discharged into an offsite Storm Water Management facility, the control requirements and procedures shall be in accordance with subsection 5.3 (c). B. Storm Water Management and development plans where applicable, shall be consistent with adopted and approved watershed or flood management plans as approved by the West Virginia Department of Natural Resources, water Resources Division in accordance with the Flood Hazard Management Act 1976 (Section 8-9A-01 et seq., Natural Resources). 5.2 STORM WATER MANAGEMENT MEASURES A. Storm Water Management measures shall be required to satisfy the minimum control requirements. The Storm Water Management practices to be utilized in developing a Storm Water Management plan shall be according to the following order of preference. 1. Infiltration of runoff onsite. 2. Flow attenuation by use of open vegetated swales and natural depressions. 3. Storm water retention structures. 4. Storm water detention structures. B. Infiltration practices shall be utilized to reduce volume increases to the extent possible as determined in accordance with infiltration standards and specification established by the West Virginia Department of Natural Resources Water Resources Division. A combination of successive practice may be used to achieve the applicable minimum control requirements. Justification shall be provided by the developers engineer for rejecting each practice based on site conditions. 5.3 SPECIFIC DESIGN CRITERIA A. Infiltration systems shall be designed in accordance to standards and specifications that are developed or approved by the Water Resources Division of the West Virginia Department of Natural Resources and shall meet the following requirements: 172 1. Infiltration systems greater than 3 feet deep shall be located at least 10 feet from basement walls. 2. Infiltration systems designed to handle runoff from commercial or industrial impervious parking areas shall be a minimum of 100 feet from any water supply well, if applicable. 3. Infiltration systems may not receive runoff until the entire drainage area to the infiltration system has received final stabilization. 4. The Storm Water Management facility design shall provide an overflow system with measures to provide a non-erosive velocity of flow along its length and at the outfall. B. Retention and detention ponds shall be designed and constructed in accordance with the criteria of the Soil Conversation Service and shall include the following items: 1. Velocity dissipation devices shall be placed at the outfall of all detention or retention structures along the length of any outfall channel as necessary to provide a nonerosive velocity of flow from the structure to a water course. 2. If determined to be necessary by the City Planner or authorized representative, the engineer shall submit to the City Planner an analysis of the impacts of storm water flows downstream in the watershed. The analysis shall include hydrologic and hydraulic calculations necessary to determine the impact of hydrograph timing and modifications of the proposed development upon a dam, highway, structure or natural point of restricted stream flow, downstream of a tributary of the following size: a. The first downstream tributary whose drainage area equals or exceeds the contributing area to the pond; or b. the first downstream tributary whose peak discharge exceeds the largest designed release rate of the pond. 3. The designed release rate of the structure shall be modified if any increase in flooding or stream channel erosion would result at the downstream dam, highway, structure or natural point of restricted stream flow. 4. Small pond approval shall be obtained from the Soil Conservation District or the Water Resources Division pursuant to Natural Resources Article, Section 8803(b). 5. Retention ponds should be designed and maintained so as to minimize aquatic weed growth, mosquito infestation and also provide protective safety fencing where necessary. Necessity of the fencing shall be determined by the City Planner. 173 c. Off site structures to be considered: 1. Shall have a contributory drainage area not in excess of 400 acres unless, on a case-by-case basis, a larger drainage area is approved by the West Virginia Department of Natural Resources, Water Resources Division. 2. Shall manage the increase in peak discharge(s) for the 2- and 10year frequency storm event(s). d. The predevelopment peak discharge rate shall be computed assuming that all land uses in the site to be developed are in good hydrologic condition and shall be based on the average use of the land in question for the five (5) years preceding the proposed change in the utilization of said lands. e. The engineer shall give consideration to incorporating the use of natural topography and land cover such as wetlands, ponds, natural swales, and depressions as they exist prior to development to the degree that they can accommodate the additional flow of water. f. The Martinsburg Planning Commission shall give preference to the use of swales in place of the traditional use of curbs and gutters based on a case-by-case review of Storm Water Management plans. In developed areas the Planning Commission shall encourage the use, and continuation of curbing. g. Where a Storm Water Management plan involves direction of some or all runoff of the site, it shall be the responsibility of the developer to obtain from adjacent property owners any easements or other necessary property interests concerning flowage of water. Approval of a Storm Water Management plan does not create nor affect any such rights. h. The basic design criteria, meteorologies, and construction specifications, subject to the approval of the City Planner, and the West Virginia Department of Natural Resources. Water Resources Division shall be those of the Soil Conservation Service generally found in the most current addition of the following publications or subsequent revisions: · Urban Hydrology for Small Watersheds, Technical No. 55, January 1975, as revised shall be used. · Soil Conservation Services Engineering Field In-House Manual, latest edition, as applicable. · Soil Conservation Service Standards and Specification for Ponds, Specification No. 378, July 1988. · U.S. Weather bureau Technical Paper 40, Rainfall Frequency Analysis, 1961. 174 6.0 REVIEW AND APPROVAL OF STORM WATER MANAGEMENT PLANS a. All Storm Water Management plans shall be submitted by a licensed engineer registered with the State of West Virginia. An application for a waiver shall be submitted to the City Planner for review and approval, for any proposed development, unless otherwise exempted. The Storm Water Management plan shall contain supporting computations, drawings, and sufficient information describing the manner, location, and type of measure in which storm water runoff will be managed from the entire development. The City Planner or a designated representative shall review the plan to determine compliance with the requirements of this Ordinance prior to submission to the Martinsburg Planning Commission. The plan shall serve as the basis for all subsequent construction. b. The Storm Water Management plan shall not be considered approved without the inclusion of the signature and the date of signature of the Martinsburg Planning Commission. c. In the Event that the Storm Water Management facility will involve and/or may effect the existing public utilities, additional copies of the Storm Water Management plan and supplemental data shall be submitted to the City Engineer for each utility involved. It will be the responsibility of the Martinsburg Public Works Department to include the affected utility owner in the plan review and approval process. 6.1 WAIVERS The Martinsburg Planning Commission may grant a waiver of the Storm Water Management requirements for individual developments provided that a written request is submitted on behalf of the applicant by a registered professional engineer recognized by the State of West Virginia, containing descriptions, drawings, and any other pertinent information that is necessary to evaluate the proposed development. A separate written waiver request shall be required in accordance with the provisions of this section if there are subsequent additions, extensions, or modifications to a development receiving a waiver. Eligibility for a waiver shall be determined if the applicant can conclusively demonstrate that: a. The proposed development will not generate more than a ten (10) percent increase in the 2-year predevelopment peak discharge rate and will not cause an adverse impact on the receiving wetland, watercourse, or waterbody. b. A site that is completely surrounded by existing developed areas served an existing network of public storm drainage systems of adequate capacity to accommodate the runoff from the additional development. 6.2 VARIANCES The Martinsburg Planning Commission may grant a written Variance from any requirements of Section 5.0 Storm Water Management Criteria of this Ordinance if there are exceptional circumstances applicable to the site such 175 that strict adherence to the provisions of the Ordinance will result in unnecessary hardship and not fulfill the intent of the Ordinance. A written request for a Variance shall be provided to the City Planner and shall state the specific Variances sought and reasons for their granting. The Martinsburg Planning Commission shall have the authority to grant a Variance, and such a Variance shall not be granted unless and until sufficient specific reasons justifying the Variance is provided by the person developing land. 7.0 PERMIT REQUIREMENTS A Building Permit issued by the City of Martinsburg may be suspended or revoked after written notice is given to the permittee for any of the following reasons: a. Any violation of the conditions of the Storm Water Management, sediment and erosion control plan as approved. b. Changes in site runoff characteristics upon which a waiver was granted. c. Construction is not in accordance with the approved plans. d. Noncompliance with correction notice or stop work order(s) issued for the construction of the Storm Water Management facility. e. An immediate danger exists in a downstream area in the opinion of the Department of Natural Resources, the City Planner or an authorized representative. 7.2 PERMIT CONDITIONS In granting the approval, the Martinsburg Planning Commission may impose such conditions as may be deemed necessary to ensure compliance with the provisions of this Ordinance and the preservation of public health and safety. 8.0 SURETY REQUIREMENTS 8.1 TYPE OF SECURITY The Mayor and Council of the City of Martinsburg may require a performance surety in accordance with existing subdivision regulations. The developer may submit a separate surety for the Storm Water Management or may include these facilities in the public improvements guarantee. The surety shall be in a form acceptable to the Mayor and Council of the City of Martinsburg. 8.2 CONDITIONS OF SURETY Surety so required in this Article shall include provisions relative to forfeiture for failure to complete work specified compliance with all and any time limitations. The surety shall remain in full force and effect until completion of work to approved plans and specifications. The amount of the surety shall not be less than one 176 hundred (100) percent of the contract cost of the Storm Water Management facilities involved. A provision may be made for partial release of the deposit or the amount of the surety upon completion and acceptance of the various stages of development as delineated, described and scheduled on the required plans and specifications. 9.0 INSPECTION SCHEDULE AND REPORTS a. The City Planner or an authorized representative shall conduct inspections and file reports for inspections necessary during construction of Storm Water Management systems to ensure compliance with the approved plans b. Any portion of the work that does not comply will be promptly corrected by the developer, after written notice from the City Planner. The notice shall set forth the nature of corrections required and the time within which corrections will be made. c. The developer shall notify the City Planner before commencing any work in conjunction with the Storm Water Management plan and upon completion of the project when a final inspection will be conducted. 9.1 FINAL INSPECTION REPORTS A final inspection shall be conducted by the City Planner or an authorized representative upon completion of the Storm Water Management facility to determine if the completed work is constructed in accordance with approved plan and this Ordinance. The developer’s engineer will be required to submit “As-Built” certification to certify that the facility has been constructed to meet or exceed the requirements of the approved plans and specifications. The engineer shall submit on the As-Built plans a schedule of proper maintenance procedures for private facilities not subject to public ownership and maintenance. The developer will receive written notification of the results of the final inspection. The City Planner shall maintain a permanent file of all inspection reports. 9.2 INSPECTION FOR PREVENTIVE MAINTENANCE a. Preventive maintenance shall be ensured through inspection of all infiltration systems, retention, detention structures by the City Planner or an authorized representative. The inspection shall occur during the first year of operation and at least once every three (3) years thereafter. b. Inspection reports shall be permanently maintained by the City Planner. c. If, after an inspection by the City Planner, or an authorized representative, the condition of a Storm Water Management facility presents an immediate danger to the public health or safety, because of an unsafe condition or improper maintenance, the City Planner shall take 177 such action as may be necessary to protect the public and make the facility safe. Any cost incurred by the City of Martinsburg shall be assessed against the owner(s) as provided in subsection 10.1 (c). 10.0 MAINTENANCE 10.1 MAINTENANCE AGREEMENT a. Prior to the issuance of any Building Permit for which Storm Water Management is required, the City Planner, or an authorized representative, shall require the applicant or owner to execute an inspection and maintenance agreement binding on all subsequent owners of land served by the private Storm Water Management facility. Inspections shall be conducted at reasonable times by the City Planner or an authorized representative, to ensure that the facility is maintained in proper working condition to meet design standards and any provisions established. b. The agreement shall be recorded by the applicant and or owner in the land records of Berkeley County, West Virginia. c. The agreement shall also provide that, if after notice by the City Planner to correct a violation regarding maintenance work and satisfactory corrections are not made by the owner(s) within a 30-days maximum, the City of Martinsburg may perform all necessary work to place the facility in proper working condition. The owner(s) of the facility shall be assessed the cost of the work and any penalties, and their shall be a lien on the property, which may be placed on the tax bill and collected as ordinary taxes by the City of Martinsburg. 10.2 MAINTENANCE RESPONSIBILITY a. The owner of the property on which work has been done pursuant of this Ordinance for private Storm Water Management facilities, or any other persons or agent in control of such property, shall maintain in good condition and promptly repair and restore all grade surfaces, walls, drains, dams and structures, vegetation, erosion and sediment control measures, and other protective devices. Such repairs or restorations and maintenance shall be in accordance with approved plans. 11.0 APPEALS 11.1 PETITION OF WRITE OF CERTIORARI FROM DECISION Appeal by any person aggrieved from any action of the Martinsburg Planning Commission or the City Planner relative to this Ordinance shall be subject to review by certiorari. Any person or persons, firm, corporation, or governmental unit jointly or severally aggrieved by any decision may present to the Circuit Court of Berkeley County a petition duly verified, setting forth that such decision is illegal in whole or in part, and specifying the grounds of the illegality. The 178 petition shall be presented to the Circuit Court within the thirty (30) days after the decision and order of the Martinsburg Planning Commission or City Planner that is complained of. The notice to adverse parties and the procedure of the Circuit Court and the Martinsburg Planning Commission shall be as provided by the laws of West Virginia and particularly by Section 59 through 65, Article 24, Chapter 8 of the Code of West Virginia. 11.2 ACTION OF THE COURT The Circuit Court may decide and determine the sufficiency of the statements of illegality contained in the petition without further pleadings and may make its determination and render its judgment with reference to the legality of the decision of the Martinsburg Planning Commission or the City Planner on the facts set out in the return of the writ of certiorari. If it shall appear to the Circuit Court that testimony is necessary for the proper disposition of the matter, it may take evidence to supplement the evidence and facts disclosed by the return of the writ of certiorari, but no such review shall be by trail de novo. 11.3 APPEALS FROM COURT JUDGMENT An appeal may be taken to the Supreme Court of Appeals of West Virginia from the final judgment of the Circuit Court reversing, affirming or modifying the decision of the Martinsburg Planning Commission or City Planner in the same manner, and upon the same terms, conditions and limitations as appeals in other civil action. 12.0 SEVERABILITY If any section, subsection, clause, phase, or portion of this Ordinance is for any reason held invalid or unconstitutional by any court or competent jurisdiction, such portions shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portion of this Ordinance, it being the intent of the Mayor and Council of the City of Martinsburg that this Ordinance shall stand, not with standing the invalidity of any section, subsection, clause, phase, or portion hereof. 13.0 PENALTIES Any person convicted of violating the provisions of this Ordinance shall be guilty of a misdemeanor and upon conviction thereof, shall be subject to a fine of not more than five hundred dollars ($500.00) for each and every violation with costs imposed in the discretion of the court. Each day that the violation continues shall be a separate offense. In addition thereof, the Mayor and Council of the City of Martinsburg may institute injunctive, mandamus or other appropriate action or proceedings at law or equity for the enforcement of this Ordinance or to correct violations of this Ordinance, any court of competent jurisdiction shall have the right to issue restraining orders, temporary or permanent, injunctions or mandamus or other appropriate forms of remedy or relief. 179 14.0 ADOPTION The Storm Water Management Ordinance is hereby adopted on this ___________ day of ________________, _____ and becomes effective the __________day of _______________, ______. I, Edward W. Dockeney, Jr., Mayor of Martinsburg, do hereby certify that the within Storm Water Management Ordinance was unanimously adopted by the Mayor and Council of the City of Martinsburg West Virginia on ________________, ______. Edward W. Dockeney, Jr., Mayor and Council of the City of Martinsburg ATTEST: 180 AN ORDINANCE TO PROVIDE FOR THE STABILIZATION OF BUILDINGS WITHIN THE MARTINSBURG HISTORIC DISTRICT 181 AN ORDINANCE TO PROVIDE FOR THE STABILIZATION OF BUILDINGS WITHIN THE MARTINSBURG HISTORIC DISTRICT. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MARTINSBURG THAT THE CITY OF MARTINSBURG ZONING ORDINANCE BE AMENDED AS FOLLOWS: Section 1005.1-Stabilization of Buildings and Structures. a. The owner of a building or structure within the historic district may apply to the Historic Review Commission for a building stabilization permit when the owner is unable to immediately bring the building or structure up to building code and historic district code standards and the owner wishes to preserve the building or structure for future renovation, repair, and maintenance. In order for a stabilization permit to be granted, the following stabilization and maintenance must occur: Structure must be stabilized by use of weatherproof wood or metal materials to cover the roof where and if damaged; exterior grade plywood fitted into window openings and doorways, properly secured and painted a suitable color; shutters, if any, shall be removed and stored within the structure; if of masonry construction, all joints shall be properly filled and sealed; if frame construction all damaged or deteriorated siding shall be repaired and painted; all gutters must be kept clear of weeds and excess vines and trees; cellar ways and windows are to be secured and basement fumigated before final closure of structure. b. A stabilization permit may be granted by the Historic Review Commission for up to a two-year period. Automatic review by the Historic Review Commission will take place at the expiration of the permit period in order to assess the condition of the building or structure and adherence to stabilization requirements. Extension of the permit may be granted by the Historic Review Commission for one additional two-year period. 182 AN ORDINANCE TO PROVIDE FOR THE DELAY OF THIRTY (30) DAYS FOR THE ISSUANCE OF A DEMOLITION PERMIT FOLLOWING A DECISION OF THE HISTORIC REVIEW COMMISSION OR THE CITY COUNCIL PERMITTING THE DEMOLITION OF PROPERTY WITHIN THE HISTORIC PRESERVATION DISTRICT. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF MARTINSBURG: Appeal of the actions and decisions of the Historic Preservation Review Commission shall be made directly to the Martinsburg City Council, which shall be made directly to the Martinsburg City Council, which shall have the authority to review, amend, affirm, reject or deny the actions and decisions of the Historic Preservation Review Commission. If the City Council reverses the Historic Preservation Review Commission’s decision to deny issuance of a Certificate of Appropriateness for the demolition of a building or structure, within the historic preservation district, no permit for demolition shall be issued by the Building Inspector for a period of thirty (30) days following Council’s decision. The decision of the City Council shall be made in writing within thirty (30) days of hearing of the appeal. Decisions of the City Council may be appealed to the Circuit Court of Berkeley County, West Virginia. 183 COMPREHENSIVE DEVELOPMENT PLAN MARTINSBURG, WV SUBDIVISION REGULATIONS ADOPTED & EFFECTIVE SEPTEMBER 11, 1969 184 COMPREHENSIVE DEVELOPMENT PLAN MARTINSBURG, WEST VIRGINIA SUBDIVISION REGULATIONS ADOPTED AND EFFECTIVE SEPTEMBER 11, 1969 The preparation of this report was financially aided through a federal grant from the Department of Housing and Urban Development, under the Urban Planning Assistance Program authorized by Section 701 of the Housing Act of 1954, as amended. This report was prepared under the supervision of the Planning and Research Division of the West Virginia Department of Commerce. Prepared for the Martinsburg Planning Commission by Marcou, O’Leary and Associates—Planners May, 1969 185 INTRODUCTION This is a FINAL DRAFT of the proposed subdivision regulations for Martinsburg. These regulations have been prepared as part of the current Martinsburg Planning program. The original draft of the subdivision regulations was prepared by the City’s planning consultant, Marcou, O’Leary and Associates, in July 1968. The draft was reviewed by the Martinsburg Planning Commission. The Planning Commission then held a public hearing on the proposed subdivision regulations on November 26, 1968. As a result of the review, and of comments and suggestions made at the public hearing, a number of revisions have been made in the original draft. The Planning Commission is now transmitting this final draft of the subdivision regulations to the City Council. The City Council will hold a public hearing before final adoption of the regulations. The Council may make additional revisions before adopting the regulations. Subdivision regulations provide a tool for helping guide the development of a safer, healthier, more efficient, and more attractive city. The regulations provide for Planning Commission review of the design of new subdivisions, both internally and also with respect to the overall design of a section of the City. In addition, the regulations provide for installation of streets and other improvements by subdivision developers. 186 TABLE OF CONTENTS ARTICLE I: GENERAL PROVISIONS Section 1: Title ....................................................................................................................... 1 Section 2: Legislative Authority ............................................................................................. 1 Section 3: Statement of Legislative Intent ............................................................................. 1 Section 4: Administration of Regulations .............................................................................. 1 Section 5: Jurisdiction ............................................................................................................ 1 Section 6: Application ............................................................................................................ 1 ARTICLE II: DEFINITIONS Section 1: Interpretation......................................................................................................... 3 Section 2: Definition of Terms ............................................................................................ 3-6 ARTICLE III: PROCEDURE FOR FILING SUBDIVISION APPLICATION Section 1: General Procedure ............................................................................................... 7 Section 2: Sketch Plan Review.............................................................................................. 7 Section 3: Preliminary Plat..................................................................................................... 7 Section 4: Final Plat ............................................................................................................... 8 Section 5: Fees ...................................................................................................................... 9 ARTICLE IV: PLAT REQUIREMENTS Section 1: Sketch Plat .......................................................................................................... 10 Section 2: Preliminary Plat.............................................................................................. 10-13 Section 3: Final Plat ........................................................................................................ 13-15 ARTICLE V: DESIGN STANDARDS Section 1: General Requirements ...................................................................................... 16 Section 2: Land Requirements ............................................................................................ 16 Section 3: Streets ............................................................................................................16-20 Section 4: Lots and Lot Sizes .............................................................................................. 20 Section 5 Blocks.................................................................................................................. 21 Section 6: Basements ......................................................................................................... 21 Section 7: Land Requirements for Community Facilities .................................................... 22 Section 8: Miscellaneous ..................................................................................................... 23 ARTICLE VI: REQUIRED IMPROVEMENTS Section 1: General Requirements ....................................................................................... 25 Section 2: Required Improvements ................................................................................25-27 ARTICLE VII: NONRESIDENTIAL SUBDIVISIONS Section 1: General Requirements ....................................................................................... 28 Section 2: Design Standards ............................................................................................... 28 ARTICLE VIII: ADMINISTRATION Section 1: Hardship.............................................................................................................. 30 Section 2: Large Scale Development .................................................................................. 30 Section 3: Conditions ........................................................................................................... 30 Section 4: Appeal ................................................................................................................. 30 ARTICLE IX: ORDINANCE PROVISIONS Section 1: Amendments...................................................................................................... 31 Section 2: Plats Filed Without Approval .............................................................................. 31 Section 3: Repeal of Conflicting Ordinances ...................................................................... 31 Section 4: Separability ......................................................................................................... 31 187 ARTICLE I: GENERAL PROVISIONS SECTION 1: TITLE These regulations shall be known as, and may be cited as the “Martinsburg Sub-division Regulations.” SECTION 2: LEGISLATIVE AUTHORITY These sub-division regulations are established in accordance with the provisions of Sections 28 through 35 of Article 24, Chapter 8, of the West Virginia Code. SECTION 3: STATEMENT OF LEGISLATIVE INTENT These sub-division regulations are adopted by the City Council of Martinsburg, West Virginia, for the following purposes: 1. To assist orderly and efficient land development; 2. To provide for the coordination of existing streets and public utilities with new streets and utilities; 3. To provide for efficient and orderly extension of community services and facilities at minimum cost and maximum convenience; 4. To ensure that proper provisions are made for drainage, water supply, sewerage, and other needed improvements; 5. To ensure equitable processing of all sub-division plans by providing uniform procedures and standards for observance both by subdividers and the Planning Commission; 6. To ensure conformance of land development with the Martinsburg Comprehensive Development Plan; 7. To promote the health, safety, and general welfare of the residents of Martinsburg. SECTION 4: ADMINISTRATION OF REGULATIONS These sub-division regulations shall be administered by the Martinsburg Planning Commission. All applications, fees, maps, and documents relative to sub-division approval shall be submitted to the Martinsburg Planning Commission. The Planning Commission may request the employment of a Planning Administrator to handle the daily administration of these regulations and may seek advice from other local and state agencies regarding sub-division proposals. The Planning Commission may also appoint a sub-division committee, comprising members of the Planning Commission, to study proposed sub-divisions. However, no sub-division plat shall be approved except by action of a majority of the Planning Commission. SECTION 5: JURISDICTION The provisions of these regulations shall apply to all lands within the incorporated areas of the City of Martinsburg. SECTION 6: APPLICATION No land within the City of Martinsburg shall be subdivided, nor shall any lot be sold or building erected in a sub-division as herein defined, until a plat of the sub-division is approved by the Martinsburg Planning Commission and the plat properly filed and recorded by the County Clerk. Page 1881 In their interpretation, and application, the provisions of these regulations shall be held to be minimum requirements, adopted for the promotion of the public health, safety, and general welfare. Whenever the provisions of these regulations are at variance with the requirements of any other lawfully adopted rules, regulations, Ordinances, deed restrictions or covenants, that provision which is more restrictive or imposes higher standards or requirements shall govern. 1892 Page ARTICLE II: DEFINITIONS SECTION 1: INTERPRETATION For the purpose of these regulations, certain terms or words used herein shall be interpreted as follows: The word “person” includes an individual, a corporation, a partnership, an incorporated association, or any other similar entity. The present tense includes the future tense; the singular number includes the plural; and the plural number includes the singular. The word “shall” is mandatory, the word “may” is permissive. The phrase “used for,” includes “arranged for,” designed for,” “intended for,” “maintained for,” or “occupied for.” The word “lot” includes the words “plat” or “parcel.” SECTION 2: DEFINITIONS OF TERMS As used in these Regulations, the following terms shall be defined as follows: Alley: A minor way that is used primarily for vehicular service access to the back or the side of properties otherwise abutting on a street. Block: An area of land containing two or more lots and bounded by streets providing access to such lots. Building Line: A line drawn parallel to a lot line at a distance there from equal to the depth of a required yard. Clear Sight Triangle: An area of unobstructed vision at street intersections defined by lines of sight between points at a given distance from the intersection of street right-ofway lines. Comprehensive Development Plan: A plan for the physical development of the area within the jurisdiction of the Martinsburg Planning Commission, which shall have been adopted by the Planning Commission and the City Council. Dedication: The deliberate appropriation of land by its owner for any general and public uses, reserving to himself no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted. Developer: Any person, firm, corporation, partnership, or association who shall lay out, for the purpose of sale or development, any sub-division, or part thereof, as defined herein, either for himself or others. Easement: A grant by a property owner of the use of a designated part of his land by another party for a specified purpose and for a specified time; which shall be included in the conveyance of land by such easement. 1903 Page Floodplain: An area that would be under water as the result of the largest rainfall during a fifty-year (50) period. Half or Partial Street: A street, generally parallel and adjacent to a property line, having a lesser right-of-way width than normally required for satisfactory improvement and use of the street. Interior Walk: A right-of-way for pedestrian use extending from a street into a block or across a block to another street. Lot: A tract or parcel of land intended for transfer of ownership, use or improvement. Lot, double frontage: A lot, the opposite ends of which abut on streets. Owner: The owner of the land proposed to be subdivided whose name last appears on the tax rolls. Performance Guarantee: Any security that may be accepted in lieu of a requirement that certain improvements be made before the Planning Commission approves a plat, including but not limited to performance bonds, escrow agreements and other similar collateral or surety agreements with surety to be approved by the Planning Commission. Plat: A map or layout of a sub-division indicating the location and boundaries of individual properties. a. Sketch Plat: A preliminary sketch indicating the subdivider’s general objectives and desires in regard to the future development of his land, which may be presented to the Planning Commission for its informal consideration. b. Preliminary Plat: The preliminary drawings and supplementary material indicating the proposed layout of the sub-division to be submitted to the Planning Commission for its consideration. c. Final Sub-division Plat: The final map, drawing or chart upon which the subdivider’s plan of sub-division is presented to the Planning Commission for approval, and which, if approved, will be submitted to the County Clerk for recording. Reverse Frontage Lot: 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. Right-of-Way: Land reserved for use as a street, interior walk, or for other public purposes. Setbacks: See “Building Line.” Sight Distance (along road): A straight line with unobstructed view measured between a point four feet above the finished grade of a road, at the center line of each traffic lane, and a point at a given minimum distance away from the first point, located one foot above finished grade at the center line of the same traffic lane. Page 1914 Sight Distance (across intersections): A straight line with unobstructed view measured in either direction across the corner between points, each seventy-five (75) feet back from the theoretical intersection of the edges of the pavement prolonged; one point four feet above the grade of the pavement edge, the second point one foot above the grade of the pavement edge. Street: A way for vehicular traffic, whether designated as a street, highway, thoroughfare, parkway, thoroughway, road, avenue, boulevard, lane, place or however otherwise designated. Street Right-of-Way: Includes all the land between the front property lines of properties bordering the street. Pavement (Street): That portion of the right-of-way designed and intended for vehicular movement, bordered by a curb and gutter or a shoulder and grass strip. Sidewalk: A paved surface located between the pavement edge and the street right-of-way line, designed for and intended for pedestrian traffic. Street Classification: The City’s highways and streets are classified into one of four major groupings: freeway, arterial, collector, and local. Freeway: devoted entirely to the task of traffic movement and provides little or no land service function. It is designed to move large volumes of vehicles at relatively high speeds over fairly long distances. Its geometric features include access control with no intersections at grade. Arterial: A street designed for through traffic movements between areas and across the city and to provide for the distribution of travel to and from the collector streets. Arterial routes sometimes provide a secondary function of serving some of the access needs of the abutting properties. However, land service functions are subordinated to demands for traffic movements. Collector: Street system includes nonlimited access routes that provide for travel movements between the arterial and local street network. This type of street performs equally the task of moving vehicles and providing access to the abutting properties. Local: Streets whose sole function is to provide access to the immediately adjacent land. Marginal Access Street: A local street which is parallel to and adjacent to an arterial street or height, and which provides access to abutting properties and protection from through traffic. Cul-de-sac: A local street that intersects with another street at one end and is permanently terminated at the other end by a vehicular turnaround. Subdivider: Any person, firm, corporation, partnership, or association, who shall lay out, for purpose of sale or development, any sub-division, or part thereof, as defined herein, either for himself or others. Page 1925 Sub-divisions: The term “sub-division” means the division of a parcel of land into two (2) or more lots or parcels for the purpose of transfer of ownership or building development of one or more of the lots, or any division of land if a new street is involved. The term “sub-division” includes re-sub-division and, when appropriate to the context, shall relate to the process of subdividing or to the land subdivided. The term “sub-division” shall not include: a. The division of land for a minor boundary adjustment; b. A division of land for agricultural or natural resource purposes into lots or parcels of ten (10) acres or more, provided that such division does not involve a new street, entrance to a street, or building site; c. A testamentary division of land; d. A division of land upon dissolution of a bona fide partnership in existence for two (2) or more years; e. A division of land among the immediate members of a family for personal use. Zoning Ordinance: The officially adopted Zoning Ordinance of the City of Martinsburg, together with any and all amendments thereto. Page 1936 ARTICLE III: PROCEDURES FOR FILING SUB-DIVISION APPLICATIONS SECTION 1: GENERAL PROCEDURE The procedure for obtaining approval of a sub-division plat includes three steps: 1. Sketch Plat Review (optional); 2. Preliminary Plat Review and Approval; and 3. Final Plat Review and Approval SECTION 2: SKETCH PLAT REVIEW The purpose of the sketch plat procedure is to give the subdivider an opportunity to obtain advice and assistance from the Planning Commission before committing undue time and money to the project. Sketch plat review is optional. A. Procedure 1. Before filing an application for approval of the Preliminary Plat, the subdivider may meet with the Planning Commission to discuss his proposed sub-division. For this review, the subdivider shall submit to the Planning Commission the plans and data listed in Article IV. This material shall be submitted at least five days in advance of the scheduled meeting. This step does not require formal application or fee. 2. The Planning Commission and the subdivider shall discuss the requirements of these regulations as they apply to the proposed sub-division. Within fifteen (15) days, the Planning Commission shall inform the subdivider that the plans and data as submitted, or as modified, do or do not meet the objectives of these regulations. When the Planning Commission finds the plans and data do not meet the objectives of these regulations, it shall express its reasons in writing. SECTION 3: PRELIMINARY PLAT A. Procedure 1. The subdivider shall cause to be prepared a Preliminary Plat, together with improvement plans and other supplementary material as specified in Article IV. 2. Six copies of the Preliminary Plat and the supplementary material specified shall be submitted to the Planning Commission, together with a written application of forms provided by the Planning Commission. 3. Upon receipt of the six copies of the Preliminary Plat and other required data, and the written application form, the Planning Commission shall set a place and date for a public hearing, and notify by general publication or otherwise any person or governmental unit having a probable interest in the proposed sub-division. 4. The Planning Commission shall transmit a copy of the Preliminary Plat, and the supplementary data, to the Martinsburg-Berkeley County Department of Health. The West Virginia Department of Health shall review the proposed provisions for water supply and disposal of sewage and shall transmit Page 1947 recommendations on the proposed water and sewage systems to the Planning Commission before the date established for the public hearing. The Planning Commission may transmit copies of the Plat and data to other local and state agencies for review and recommendations. 5. The public hearing shall be held. After the hearing, the Planning Commission shall proceed to the consideration of the Preliminary Plat. The Planning Commission shall consider the comments and opinions expressed at the public hearing but the Commission shall be responsible for reaching its own conclusions on the merits of the proposed sub-division. In determining whether conditional approval should be given to the Preliminary Plat, the Planning Commission shall be guided by the accompany design standards. Particular attention shall be given to the arrangement, location, and width of streets and their relation to the topography, water supply, sewage disposal, drainage, lot sizes and arrangements, the future development of adjoining lands not yet subdivided, and the requirements of the Comprehensive Development Plan and the Zoning Ordinance. 6. Following review of the Preliminary Plat and other material submitted for conformity to these regulations, and discussions with the subdivider on changes deemed advisable, and the kind and extend of improvements to be made by him, the Planning Commission shall, within forty-five (45) days after the public hearing, approve or disapprove the Preliminary Plat. If approved, the Planning Commission shall express its approval as Conditional Approval and state the conditions of such approval, if any. If disapproved, the Planning Commission shall express its reasons for disapproval in writing. 7. The action of the Planning Commission shall be noted on two copies of the Preliminary Plat, referenced and attached to any conditions determined. One copy shall be returned to the subdivider and the other retained by the Planning Commission. 8. Conditional Approval of a Preliminary Plat shall not be deemed an expression of approval of the Preliminary Plat as a guide to the preparation of the Final Plat. Upon fulfillment of the requirements of these regulations and the conditions of the Conditional Approval, if any, the Final Plat shall be submitted for the approval of the Planning Commission. 9. For a sub-division containing not more than four lots and no new streets, the Planning Commission may decide to consider the Preliminary Plat as the Final Plat, if the plat and supporting documents comply with the pertinent requirements for the Final Plats outlined in Article IV. SECTION 4: FINAL PLAT A. General Procedure 1. The Final Plat shall conform substantially to the Preliminary Plat as conditionally approved by the Planning Commission and shall incorporate all modifications and revisions specified by the Commission in its Conditional Approval of the Preliminary Plat. Otherwise, the plat shall be considered as a revised Preliminary Plat. 2. The Commission may permit submission of the Final Plat in sections, each covering a portion of the entire proposed sub-division as shown on the Preliminary Plat. Page 1958 3. The Final Plat and supporting documents shall comply with the provisions of Article IV (Page 10) of these regulations. 4. The Final Plat shall be submitted to the Planning Commission within twelve (12) months after approval of the Preliminary Plat. Otherwise, such approval shall become null and void, unless an extension of time is applied for by the subdivider and granted by the Planning Commission. B. Subdivider Procedure 1. The Application for Final Plat approval shall be on forms provided by the Planning Commission, accompanied by the required fees. 2. The application shall be accompanied by six (6) copies of the Final Plat and supporting documents. 3. The application, plats, and supporting documents shall be filed with the Planning Commission at least ten (10) working days in advance of the meeting at which the plat is to be considered. 4. Upon approval of the Final Plat by the Planning Commission, the subdivider shall file such plat in the Office of the County Clerk in accordance with the appropriate provisions of the law within ninety (90) days of such approval or mutually agreed upon extension of time. In the event that the Final Plat is not so filed within the appropriate time, the application shall be considered withdrawn and any previous approval or waivers shall be considered lapsed. C. Planning Commission Procedures 1. The Planning Commission shall review the Final Plat and within sixty (60) days of the meeting at which the Final Plat is first considered, the Commission shall approve, modify and approve, or disapprove such plats. 2. If the subdivider has installed the necessary improvements in the subdivision, the Planning Commission shall determine that the improvements have been installed in accordance with the design standards adopted by the Commission and as shown on the Final Plat. If the subdivider elects to post a bond to cover future installation of improvements, the Planning Commission shall determine that the bond meets the requirements outlined in Article IV of these regulations. 3. If the Planning Commission approves the Final Plat, it shall affix its seal upon the Plat. The Plat shall be signed and dated by the President of the Planning Commission. If the Commission disapproves the Plat, it shall set forth the reasons in its own records and provide the applicant with a copy. SECTION 5: FEES The City Council may establish a uniform schedule of fees proportioned to the cost of checking and verifying the proposed Preliminary and Final Plats. The subdivider shall pay the specified fee at the time of filing his application for preliminary plat approval. Page 1969 ARTICLE IV: PLAT REQUIREMENTS SECTION 1: SKETCH PLAT If the developer elects to follow the sketch plat procedure, he shall submit the following information 1. General sub-division information (word description) shall describe or outline the existing conditions of the site and the proposed developments as necessary to supplement the drawings required below. This information shall include data on existing covenants, general soil information, existing zoning and available community facilities and utilities; and information describing the sub-division proposal such as number of residential lots, typical lot width and depth, price range, business areas, playgrounds, park area, and other public areas, proposed protective covenants and proposed utilities and street improvements. If only part of the sub-division is to be developed at one time, an estimated time schedule of eventual development should be included. 2. A location map that shall show the relationship of the proposed subdivision to existing community facilities, which serve or influence it. The location map shall include development name and location; main traffic arteries; public transportation lines; shopping centers; elementary and high schools; parks and playgrounds; principal places of employment; other community features such as railroad stations, airports, hospitals, fire stations and churches; title, scale, north arrow, and ate. Other adjacent property holdings of the owner shall also be shown 3. A sketch plat on an existing topographic survey that shall show in simple sketch form the proposed layout of streets, lots and other features in relation to existing conditions. The sketch plat shall show all of the drainage facilities, connecting piping or ditches leading to a live stream for the final disposition of the flow of surface water. The sketch may be a freehand rendering made directly on a print of the topographic survey. Where the sub-division covers only part of the owner’s entire holdings, the sketch shall show the prospective street layout for the remainder of the property. SECTION 2: PRELIMINARY PLAT A. General: The Preliminary Plat shall be submitted by the subdivider on durable paper and shall be clear and legible. The scale shall be not smaller than one (1) inch equals one hundred (100) feet and the size of sheets shall be twenty-four (24) by thirty-six (36) inches, including a one and one-half (1 ½) inch margin for binding along the left edge. When more than one (1) sheet is required, an index sheet of the same size shall be submitted showing the entire sub-division drawn to scale. The Preliminary Plat shall be labeled “PRELIMINARY PLAT” in large letters. B. Required Information: The Preliminary Plat shall show or be accompanied by the following information: 1. Vicinity map at a scale of six hundred (600) feet or more to the inch indicating the location of the property with respect to surrounding property and streets. The map shall show all streets and property within 1,000 feet of Page197 10 the applicant’s property. All property held by the applicant in the area shall be identified. 2. The names of all property owners within two hundred (200) feet of the extreme limits of the sub-division as their names appear on the deed books and the names of adjacent sub-divisions. 3. The proposed name of the sub-division, which shall not duplicate or closely approximate the name of any other sub-division in the county. 4. The name and address of the owner or owners of the land to be subdivided, and the name and address of the subdivider, if other than owner. 5. A letter from the owner, if different from the subdivider, authorizing the subdivider to act as his agent with full authority. 6. The name and address of the registered engineer, land surveyor, architect, or planner responsible for the preparation of the Plat. 7. Zoning classification on the tract of adjoining properties and any proposed changes from existing zoning. 8. North arrow, scale, and date. 9. Copies of proposed deed restrictions, if any. 10. Computation of total area of the sub-division. Site Data: 11. Sub-division boundaries with bearings and distances (include entire area proposed to be subdivided and remainder of the tract in the same ownership); all existing easements, railroad and utility right-of-ways and the purpose for which such easements and right-of-ways have been established; parks and other public open spaces. 12. All existing pertinent features either natural or manmade that may influence the design of the sub-division, such as water courses, tree groves, swamps, rock outcrops, outstanding natural topographic features, power transmission towers, scenic or historic areas, existing buildings, sewers, water mains, culverts, utility lines, and fire hydrants. Where underground utilities exist within or adjacent to the tract the approximate location, pipe size, and direction of slope shall be indicated. 13. Existing topography, normally with two-foot contour intervals. Where the terrain is rugged and hilly and where existing grades are ten (10) percent or more, five-foot contour intervals will be permitted over the area where such grades exist. Contour lines shall be shown two hundred (200) feet beyond the sub-division boundary. 19811 Page 14. Location, widths, and names of all existing improved streets or alleys on or within one hundred (100) feet of the sub-division. Recorded but unimproved streets should be shown with dashed lines. 15. If individual wells and/or septic tanks are proposed, show subsurface conditions on the proposed sub-division, including location and results of tests made to ascertain surface soil, rock, and ground water conditions. Show location and results of soil percolation tests in accordance with the specifications of the State Department of Health. Due regard shall be given to the effects of cut and fill which may make such data obsolete. Anticipated areas of cut and fill shall be noted upon the Preliminary Plat. Proposed Design and Improvements 16. The layout of all proposed and existing lots with approximate dimensions and area in square feet for each lot; proposed uses of property and proposed front yard setbacks or other setback lines. Also, when known, the location of each building and the first floor elevation and the proposed location and grade of each driveway. 17. The locations, width, and names of proposed streets and alleys. Approximate elevations at the center line of the street shall be shown at the beginning and end of each street, at street intersections, and at all points where there is a change in grade or direction. A preliminary provide of each street, at the same scale or a larger scale than the plat with tentative grades indicated shall be included. 18. The cross section of each street, at a scale of ten (10) feet or less to the inch, showing the width and type of pavement, the size and type of gutters, the location and width of sidewalks and the location and sizes of existing utility lines. 19. Location of existing monuments and proposed new monuments. 20. The approximate location, dimensions and area of all property proposed to be dedicated or temporarily reserved for public use, or to be reserved by a blanket covenant for use of all property owners in the sub-division and conditions for such conveyance or reservation. Also, the location, dimensions, area, and purposes of any proposed easements. 21. Proposed public improvements, streets, or other major improvements planned by public bodies for future construction on or near the proposed subdivision or any street or park or public improvement shown on the Martinsburg Comprehensive Development Plan. 22. Proposed provision of water supply, fire protection, disposal of sanitary waste, storm water drainage, street trees, street lighting fixtures, street signs and sidewalks, and other proposed improvements. 23. Proposed drainage system with typical cross sections of all proposed drainage, including underground drains, culvert headwalls, ditch lines, easements through lots of adjoining properties and other structures. Also the Page 12 199 location, size and invert elevation of storm sewers and appurtenances thereto. 24. Connections with existing water supply, unless individual water supply systems are being considered. 25. Connections with existing sanitary sewer system or alternative means of sewage treatment and disposal, giving location, size and invert elevations. If connections to an existing system cannot be accomplished, an interim communal sewage disposal system shall be shown and its feasibility described, unless individual sewage disposal systems are being considered. 26. The location of existing gas lines, fire hydrants, electric and telephone poles and street lights, and the recommended future locations of these services. 27. An overlay of Preliminary Plat showing the proposed location of tree groves to be retained. 28. When the Preliminary Plat covers only a part of the owner’s entire adjacent holdings, a scaled drawing with topography of the entire adjacent holding shall be submitted. SECTION 3: FINAL PLAT A. General: The Final Sub-division Plat shall be legibly drawn in black waterproof ink on tracing cloth. The scale shall not be smaller than one (1) inch equals one hundred (100) feet and the size of the sheet shall be twenty-four (24) by thirty-six (36) inches, including a one and one-half (1 ½ ) inch margin for binding along the left edge. When more than one sheet is required, an index sheet of the same size shall be submitted showing the entire sub-division drawn to scale. B. Required Information: The Final Plat shall show the following information: 1. Sub-division name and name or number of the largest sub-division or tract of which the tract being subdivided forms a part. 2. Names and location of adjoining sub-divisions, and location and ownership of adjoining unsubdivided property. 3. True and magnetic North point (designate plat North), scale, and date. 4. The name and address of the owner of the land and the name and address of the subdivider, if other than the owner. 5. The name, address, and seal of the registered professional civil engineer or land surveyor responsible for the preparation of the plat, and certification that the plat represents a survey made by him and that all monuments shown Page 13 200 thereon actually exist, and that their location, size, and material are correctly shown. 6. Bearings and distances to nearest established street bounds, established survey lines, or other official monuments. These monuments shall be located or accurately described in the plat. 7. The accurate location and material of all permanent reference monuments. 8. The exact layout for the sub-division, including: a. Street and alley lines; their names, bearings, angles of intersections and widths, including widths along the line of any obliquely intersection street. b. The lengths of all arcs, radii, points of curvature and tangent bearings. c. All easements of right-of-ways, when provided for or owned by public utilities, with the limitation of the easement right definitely stated on the plat. d. All lot lines with dimensions in feet and hundredths, and width bearings or angles to minutes, for lot lines that are not at right angles to the street and alley lines. 9. Lots numbered in numerical order, and blocks lettered in alphabetical order or numbered in numerical order throughout the entire sub-division. 10. Area of each lot to the nearest square foot. 11. Front yard setback building lines, the minimum as fixed by the Zoning Ordinance and any other setback lines or street lines established by public authority, and those stipulated in the deed restrictions. 12. Accurate outlines of any areas to be reserved for common use by the residents of the sub-division, or for the general public use with the purposes indicated thereon. 13. Space for statement of approval by the President of the Planning Commission, with lines for signatures and dates. The Final Plat should be accompanied by: 1. Profiles and cross sections of all streets, drawn to a scale approved by the Planning Commission and based on a datum plane approved by the Planning Commission. 2. Plans and cross sections of all street pavements, including sidewalks, curbs, and gutters, and the location, size, and elevations, when appropriate, of all underground utilities, including water, sanitary and storm sewers, and gas. Page201 14 3. A written offer of dedication of streets and other public property. 4. Copies of protective covenants in form for recording, including covenants governing the maintenance of unceded public spaces or reservations. 5. Such other certificates, affidavits, endorsements, or other agreements as may be required by the Planning Commission in the enforcement of these regulations. 6. A certificate by the Planning Administrator certifying that the subdivider has installed all improvements in accord with the requirements of these regulations and with the action of the Planning Commission giving condition approval of the Preliminary Plat, or that the subdivider has posted a bond which shall: a. Run to the City. b. Be in an amount determined by the Commission to be sufficient to complete the improvements and installations in compliance with the Ordinance. c. Be with surety satisfactory to the Planning Commission. d. Specify the time for the completion of the improvements and installations. Any funds received from these bonds shall be used only for completion of the improvements and installations for which they where provided. Page202 15 ARTICLE V: DESIGN STANDARDS SECTION 1: GENERAL REQUIREMENTS 1. In designing a sub-division, the subdivider shall comply with the principles and requirements of this Article. 2. The Planning Commission in considering an application for the subdivision of land shall be guided by the considerations and standards contained herein. 3. Land to be subdivided shall be of such a character that it can be used safely for building purposes without danger to health or peril from fire, flood, or other menace. 4. Sub-divisions shall conform to the adopted Comprehensive Development Plan of Martinsburg. SECTION 2: LAND REQUIREMENTS Land shall be suited for the purposes for which it is to be subdivided. In general, the Planning Commission shall take the following factors into consideration prior to the approval of any sub-division. 1. Sub-divisions laid out on land subject to periodic flooding shall not be approved unless adequate safeguards against such hazards are provided; and 2. Areas characterized by steep slopes, rock formations, poor soils or other unsuitable physical features shall not be subdivided unless adequate safeguards against potential hazards are provided. SECTION 3: STREETS A. General Requirements: The arrangement, character, extent, width, and location of all streets shall conform to the Transportation Plan and shall be considered in their relation to existing and planned streets, to topographical conditions, to public convenience and safety, and to their appropriate relation to the proposed uses of the land to be served by such streets. In designing a street system, the subdivider shall be guided by the following principles: 1. Adequate vehicular pedestrian access shall be provided to all parcels. 2. Local street systems shall be designed to minimize through traffic movement. 3. Street patterns shall minimize out-of-the-way vehicular travel. 4. Local street systems shall be logical and comprehensible. 5. The arrangement of local streets shall permit economical and practical patterns, shapes and sizes of development parcels. Page203 16 B. Street Layout and Design 1. Streets shall be classified as arterial, collector, minor, and marginal access. Street right-of-way widths and pavement widths shall not be less than as follows: Street Type Arterial Collector Local Marginal Access Right-of-Way 80 60 50 50 Pavement 40 40 26 30 These are minimum standards and may be increased where necessary. 2. When any proposed sub-division fronts on or has access to a State road, the Planning Commission shall consult with the West Virginia State Road Commission concerning the effect of the sub-division on the State road. 3. Whenever a proposed sub-division contains any part of a street so designated on the Transportation Plan, such part of said street shall be platted by the subdivider in the location and at the width indicated in the Plan. 4. Where appropriate to the design, new streets shall be continuous in alignment with existing streets with which they are to connect. 5. Proposed streets shall be extended to the boundary lines of the proposed sub-division unless such extension is not feasible because of topography or other physical conditions, or unless, in the opinion of the Planning Commission, such extension is not necessary or desirable for the coordination with existing streets or the most advantageous development of adjacent tract. 6. Dead-end streets shall be prohibited except as stubs to permit future extensions to adjoining tracts or where necessitated by topography, or where, in the opinion of the Planning Commission, they are appropriate for the type of development contemplated and are designed as cul-de-sacs. 7. Half streets shall be prohibited, except where essential to the reasonable development of the sub-division in conformity with the other requirements of these regulations, and where the Planning Commission finds it will be practicable to require the dedication of the other half when the adjoining property is subdivided. Wherever a half street is adjacent to a tract to be subdivided, the other half of the street shall be platted within such tract. 8. Sub-divisions that adjoin or include existing streets that do not conform to widths shown on the Transportation Plan shall be required to dedicate additional width along either one or both sides of such streets of inadequate width as to bring them up to standards. 9. Reserve strips controlling access to streets shall be prohibited except where their control is definitely placed in the City under conditions approved by the Planning Commission. Page204 17 10. Where a sub-division abuts or contains an existing or proposed arterial street or railroad right-of-way, the Planning Commission may required the separation of local and through traffic. This shall be achieved by one of the following means: a. A marginal access street, separated from the arterial street by a planting strip; or b. Reverse frontage lots, with the lots fronting on an interior local street and having a non-access reservation along the rear property line; or c. An alley may be provided along the rear lot line providing vehicular access to the lots abutting the arterial street. Where any of the aforementioned arrangements are used, the statement “vehicular ingress and egress, restricted” shall be shown with limits on the Final Sub-division Plat and no driveways shall have direct access to the arterial street. 11. The street system layout shall be so designed to preserve, wherever possible, natural features such as trees, brooks, hilltops, and scenic views. 12. Proposed streets which are clearly aligned with existing streets shall bear the name of the existing street. In no other case shall the names of the proposed streets duplicate or be phonetically similar to an existing street name, irrespective of the suffix, street, avenue, place, or other. C. Street Grades 1. Grades of streets shall conform as closely as possible to the original topography and shall be designed to product useable lots and reasonable grades. 2. Grades of streets shall be arranged to obtain as many building sites as possible at or above the grade of the abutting street. 3. Street grades, wherever feasible, shall not exceed the following with due allowance for reasonable vertical curves: Street Type Arterial Collector Minor Marginal Access The Planning Commission circumstances. Percent Grade 6 6 10 10 may permit steeper grades in special 4. No street grade shall be less than 0.75 percent. 5. Sight distances over grades shall not be less than two hundred (200) feet. Sight distances around curves shall not be less than 200 feet. Page205 18 A combination of steep grade and sharp curves shall be avoided. 6. Grades at street intersections shall be held to a maximum of four (4) percent for a distance of one hundred (100) feet in any direction from the point of intersection of the street center lines. D. Horizontal Alignment 1. A tangent shall be introduced between reverse curves and shall be of at least one hundred (100) feet in length on local and collector streets. 2. When continuing street lines of collector streets deflect from each other any one point by more than ten (10) degrees, they shall be connected by a curve with a radius at the inner street right-of-way line of not less than 350 feet; where continuing street lines of arterial streets deflect from each other by more than five (5) degrees, they shall be connected by a curve of not less than 800 feet radius. E. Street Intersections 1. Streets should be laid out to intersect as nearly as possible at right angles, and not street shall intersect with any other street at less than sixty (60) degrees. Any change in street alignment to meet this requirement shall occur at least one hundred (100) feet from the intersection. 2. Multiple intersections involving junctions of more than two streets shall be avoided. 3. Clear sight triangles of fifty (50) feet measured along street right-of-way lines from their points of junction shall be provided at all intersections, and 4. Streets entering opposite sides of another street shall be laid out either directly opposite one another or with a minimum offset of one hundred fifty (150) feet between their center lines. 5. Minimum curb radii at street intersections shall be ten (10) feet for streets with sixty (60) foot right-of-way and five (5) feet for streets with fifty (50) and forty (40) foot right-of-way. 6. Where a proposed sub-division abuts or contains an existing or proposed arterial street, the number of intersections with the arterial street shall be kept to a minimum. To the fullest extend possible, intersections with arterial streets shall be located not less than eight hundred (800) feet apart, measured from center line to center line. F. Cul-De-Sac Streets 1. Cul-de-sac streets, permanently designed as such, shall not exceed six hundred (600) feet in length. In circumstances where physical features of the site make longer cul-de-sacs necessary, the Planning Commission may require turnaround areas at intermediate points. Page 20619 2. Cul-de-sac streets shall be provided at the closed end with a paved turnaround having a minimum radius of fifty (50) feet to the outer pavement edge or curb line and a radius of sixty (60) feet to the right-of-way line. 3. A suitable turnaround may be required by the Planning Commission when a street is temporarily dead-ended over one hundred and fifty (150) feet from its nearest intersection. G. Alleys 1. Alleys shall be provided in commercial and industrial districts, except that the Planning Commission may waive this requirement where other definite and assured provision is made for service access. Alleys shall not be provided in other locations unless required by special conditions. 2. The minimum width of an alley shall be twenty (20) feet. 3. Alley intersections and sharp changes in alignment shall be avoided, but where necessary, corners shall be cut off sufficiently to permit safe vehicular movement. 4. Dead-end alleys shall be avoided, but, if unavoidable, shall be provided with adequate turnaround facilities at the dead-end, as determined by the Planning Commission. SECTION 4: LOTS AND LOT SIZES A. General Requirements 1. The size, width, depth, shape, orientation and yards of lots shall not be less than specified in the Zoning Ordinance for the district in which the lots are located and shall be appropriate for the type of development and use contemplated. 2. All lots shall have frontage upon an approval and improved public street, except that in a Planned Unit Development lots having access to a street or common parking area along a pedestrian way may be allowed if the development meets the specifications outlined in the Zoning Ordinance. 3. The ratio of the depth of any lot to its width shall not be greater than two and one-half to one, except for lots one acre or more in size. 4. Side lots lines shall be substantially at right angles or radial to street lines, unless a variation from this rule will give a better street or lot plan. 5. Double frontage and reverse frontage lots should be avoided except where essential to provide separation of residential development from arterial streets and highways or to overcome specific disadvantages of topography and orientation. A planting screen easement of at least ten (10) feet, across which there shall be no right of access, shall be provided Page207 20 along the line of lots abutting such an arterial street or highway or other disadvantageous use. 6. Corner lots shall have sufficient extra width to permit appropriate building setbacks from both streets. 7. Where a water course separates the buildable area of a lot from the street by which it has access, provisions shall be made for installation of a culvert or other structure, of design approved by the Planning Commission. SECTION 5: BLOCKS A. Block Shape Block length and width or acreage within bounding streets shall be such as to accommodate the size of lot required in the area by the Zoning Ordinance and to provide for convenient access, circulation control, and safety of street traffic. Blocks shall be of such sizes and shapes as considerations of topography and street layout shall dictate, but the Planning Commission shall not approve blocks that are unreasonably large or small. The corners of blocks at street intersections shall be cut back on an arc concentric with the arc of the curb lines or on the chord of such concentric arc. B. Block Dimensions 1. Blocks shall have a minimum length of four hundred (400) feet. The maximum block dimension shall be sixteen hundred (1,600) feet. In the design of blocks longer than one thousand (1,000) feet, special consideration shall be given to pedestrian through walks and satisfactory fire protection. 2. Residential blocks shall be of sufficient depth to accommodate two (2) tiers of lots of minimum depth, except where reverse frontage lots bordering a freeway or arterial street are used. 3. Pedestrian through walks may be required where necessary to assist circulation or provide access to community facilities. Such walks shall have a right-of-way width of not less than fifteen (15) feet and a paved walk of not less than four (4) feet. SECTION 6: EASEMENTS A. General Requirements To the fullest extend possible, easements shall be centered on or adjacent to rear or adjacent to rear or side lot lines. Easements shall be fully indicated on the Final Sub-division Plat. B. Pedestrian Easements 1. The Commission may require, when it deems it necessary to facilitate pedestrian access to community or other nearby streets, perpetual unobstructed easements at least fifteen (15) feet in width. The Commission may require a paved walk for pedestrian safety within such an easement. 20821 Page 2. Where a sub-division borders on a water course in an area designated in the Comprehensive Development Plan for recreational use, the Planning Commission may required easements to be reserved for public access to the water. C. Utility and Drainage Basements Where topography or other conditions are such as to make impractical the inclusion of utilities or drainage facilities within street right-of-ways, perpetual unobstructed easements at least twenty (20) feet in width for such utilities shall be provided across property outside the street lines and with satisfactory access to the street. D. Storm Water Easements Where a sub-division is traversed by a water course, drainage way, channel or stream, there shall be provided a storm water easement or drainage right-of-way conforming substantially with the lines of such water course, and such further width as may be deemed necessary by the Planning Commission to permit the construction of improvements designed to restrict the flooding of said water course on adjoining properties. Parallel streets or parkways may be required. E. Widening or Realignment of Existing Roads Where the sub-division borders an existing street and the Comprehensive Development Plan indicates plans for realignment or widening of the street that would require reservation of some land of the sub-division, the Planning Commission may require that such areas be shown and marked on the plat “reserved for Street Realignment (or Widening) Purposes.” Land reserved for street widening may not be counted in satisfying the minimum front yard or minimum lot area requirements of the Zoning Ordinance. SECTION 7: LAND REQUIREMENTS FO COMMUNITY FACILITIES 1. In reviewing sub-division plats, the Commission will consider the adequacy of existing or proposed community facilities to serve the additional dwellings proposed by the sub-division. 2. Where a proposed park, playground, or other recreational area, proposed school site, or other public uses, shown in the adopted park plan, school plan, or other part of the Comprehensive Development Plan, is located in whole or in part within a proposed sub-division, such proposed public use or park, if not dedicated to public use, or conveyed to the City or the Board of Education, shall be reserved for a period of not less than five (5) years for schools and three (3) years for parks and other community facilities, from the date of final approval of the Final Sub-division Plat by the Planning Commission for acquisition by the City Council, Board of Education, or other public agency by purchase or other means. Page 22 209 SECTION 8: MISCELLANEOUS A. Preservation of Existing Features Existing features which would add value to residential development, or natural or manmade assets of Martinsburg, such as trees, water courses, vistas, historic spots, historic or architecturally significant buildings, and similar irreplaceable assets, should be preserved, insofar as possible, though harmonious and careful design of the subdivision. B. Preservation of Natural Cover Land to be subdivided shall be laid out and improved in reasonable conformity to existing topography, in order to minimize grading and cut and fill, and to retain, insofar as possible, the natural contours, limit storm water runoff, and conserve the natural cover and soil. C. Sediment Control The subdivider shall provide effective sediment control measures in the planning and construction of sub-divisions. Practical combinations of the following technical principles shall be applied: 1. The smallest practical area of land shall be exposed at any one time during development. 2. When land is exposed during development, the exposure shall be kept to the shortest practical period of time. 3. Temporary vegetation and/or mulching shall be used to protect critical areas exposed during development. 4. Sediment basins (debris, basins, desilting basins, or silt traps) shall be installed and maintained to remove sediment from runoff waters from land undergoing development. 5. Provisions shall be made to effectively accommodate the increased runoff caused by changed soil and surface conditions during and after development. 6. The permanent final vegetation and structures shall be installed as soon as practical in the development. 7. The development plan shall be fitted to the topography and soils so as to create the least erosion potential. 8. Wherever feasible, natural vegetation shall be retained and protected. D. Self-Imposed Restrictions The subdivider may place restrictions on the development greater than those required herein or by the City Zoning Ordinance. Such restrictions, if any, shall be indicated on the Sub-division Plat. Page210 23 E. Modification of Standards The Planning Commission may modify the special requirements in any individual case where, in the Commission’s judgment, such modification is in the public interest. No modifications shall be granted which will have the effect of nullifying the intent and purpose of these Regulations or the Martinsburg Development Plan. In granting any adjustment, the Commission shall attach such conditions as are necessary, in its judgment, to secure substantially the objectives of the standards or requirements so adjusted. Page211 24 ARTICLE VI: REQUIRED IMPROVEMENTS SECTION 2: REQUIRED IMPROVEMENTS Before obtaining approval of the Final Plat, the subdivider shall install the required improvements indicated below, or as modified in the Preliminary Review, or shall post a bond covering the cost of the required improvements, in accord with the provisions of Article IV, Section 3, of these regulations. Minimum improvements and construction standards required for all sub-divisions shall be as set for in these regulations and in the applicable design standards of other public agencies. A. Monuments and Markers 1. Monuments shall be set at the intersection of all lines forming angles in the boundary of the sub-division. A minimum of two monuments shall be placed within each block of a subdivision and shall be designated as Control Corners. The Planning Commission may require additional monuments at other points. Monuments shall be placed so that the scored or marked point shall coincide exactly with the intersection of the lines to be marked, and shall be set so that the top of the monument is level with the surface of the surrounding ground. Monuments may be of the following two types: a. Cut stone 6” x 6” x 3’0” long with a drill hole in the center. b. Reinforced concrete 6” x 6” x 3’0” long with a ½” round brass pin in the center. The subdivider shall bear the cost of replacing a disturbed monument until construction of the sub-division is completed. 2. Markers shall be set at all block corners, angle points, lot corners, and points of all curves along street property lines. Markers shall consist of steel bars at least fifteen (15) inches long and not less than three-quarters (3/4) inch in diameter. B. Gas, Electric, and Telephone Utilities The Planning Commission may accept assurance from each public utility company whose facilities are proposed to be installed. Such assurance shall be in the form of a letter addressed to the Planning Commission stating that such public utility company will make the necessary installations for furnishing its services within a specified time. The Planning Commission may require placing electric and telephone lines underground in new sub-division. Page212 25 C. Water Supply 1. Where a public water supply, in the opinion of the Planning Commission, is reasonably accessible, the sub-division shall be provided with a complete water distribution system, including a connection for each lot and appropriately spaced fire hydrants. 2. The City shall refund part of the cost of installing water mains on a basis determined by the City Council. 3. Where public water supply is not available within a reasonable distance, an alternate supply, approved by the Planning Commission and the West Virginia Department of Health, shall be furnished. D. Sanitary Sewage System 1. Where a public sanitary sewer system, in the opinion of the Planning Commission, it reasonably accessible, sanitary sewers shall be installed to adequately serve all lots with connections to the public system. 2. The City shall refund part of the cost of installing sewer lines on a basis determined by the City Council. 3. Where a public sanitary sewer system is not available within a reasonable distance, individual septic tanks and disposal fields may be used. Use of a local disposal system or septic tanks shall be approved by the Planning Commission and the West Virginia Department of Health. 4. Where there is a plan for extending a public sanitary sewer system into an area that is being subdivided, and it is reasonably expected that the area will be served by the public system within a period of five (5) years, capped sewers shall be installed to adequately serve all lots in the proposed sub-division. E. Storm Drainage 1. All storm runoff shall be collected and conducted to a point of discharge in a positive and suitable manner. Storm sewers, culverts, and related installations shall be provided where necessary to: a. Permit unimpeded flow of natural water courses; b. Ensure adequate drainage of all low points along streets; and c. Intercept storm water runoff along streets at intervals reasonably related to the extent and grade of the area drained. 2. In determining the proper drainage of any sub-division, the Planning Page213 26 Commission shall take into consideration and, if possible, make provisions for future drainage problems which may arise, and shall not be restricted in imposing conditions or regulations respecting drainage problems to the particular sub-division under consideration. 3. The subdivider shall provide for the construction of all necessary structures and storm drainage facilities required beyond the immediate boundary of the sub-division in order to conduct runoff to acceptable point of disposal. 4. Lots shall be laid out and graded to provide positive drainage away from buildings. 5. In the design of storm sewerage installations, special consideration shall be given to avoidance of problems which may arise from concentration of storm water runoff over adjacent properties. F. Street Improvements Street improvements include grading of the street right-of-way, street pavement, curbs and gutters or shoulders, and sidewalks. Street improvements shall be provided on the basis of two types of sub-divisions: urban and suburban. Urban sub-divisions shall have street pavements, curbs and gutters, and sidewalks. Sidewalks shall be at least five (5) feet wide. Suburban sub-divisions shall have street pavement but shoulders may be substituted for curbs and gutters, and sidewalks may be omitted. The designation of a proposed sub-division as urban or suburban shall be determined by the Planning Commission. In determining the designation, the Planning Commission shall consider the location, character, and density of the proposed sub-division, and the character of surrounding development. G. Street Improvement Construction Standards The subdivider shall provide for the construction of required street improvements, constructed according to standards approved by the Planning Commission and the City Council. 21427 Page ARTICLE VII: NONRESIDENTIAL SUB-DIVISIONS SECTION 1: GENERAL REQUIREMENTS Nonresidential developments include commercial and industrial developments. The Planning Commission recognizes that the subdivider creating nonresidential subdivisions faces unique problems of lot design not normally encountered in residential sub-divisions. For this reason, the initial emphasis of the Planning Commission shall be upon street layout and block arrangement. Generally, the procedural requirements shall be for the owner to follow the regular procedure outlined in Article III and to show the entire tract to be subdivided with necessary improvements and as many parcels as he cares to show, but at least two. As prospective buyers express interest in lots sized to their required specifications, the owner may submit to the Planning Commission an amendment to the approved Final Sub-division Plat for consideration. Regular procedural requirements shall then apply. In addition to the principles and standards in these regulations that are appropriate to the planning of all sub-divisions, the subdivider shall demonstrate to the satisfaction of the Planning Commission that the street, parcel, and block pattern proposed is specifically adapted to the uses anticipated and takes into account other uses in the vicinity. The following principles and standards shall be observed. SECTION 2: DESIGN STANDARDS A. Site Design 1. Proposed nonresidential street layout, blocks, and parcels shall be suitable in area and dimensions to the types of development anticipated. 2. The total area shall be sufficient to provide adequate space for offstreet parking and loading, landscaping, and other facilities as required by the Zoning Ordinance. 3. Whenever possible, commercial parcels should include enough land to provide for a group of commercial establishments, planned, developed, owned, and managed as a unit. Narrow, ribbon developments along arterial streets will be discouraged. 4. With respect to physical improvements, special requirements may be imposed by the Commission within the nonresidential sub-division. 5. Every effort shall be made to protect adjacent residential areas from potential nuisance from the nonresidential sub-divisions, including the provision of extra depth in parcels backing up on existing or potential residential development and provisions for a permanently landscaped buffer strip when necessary. B. Street System 1. Traffic movements in and out of commercial and industrial areas should not interfere with external traffic, nor create hazards for adjacent residential areas. 2. The design of streets, service drives, and pedestrian ways should provide for safe and hazard-free internal circulation. Page 28 215 3. Streets carrying nonresidential traffic, especially truck traffic, shall not normally be extended to the boundaries of adjacent existing or potential residential areas, nor connected to streets intended for predominately residential traffic, but shall be connected insofar as is possible to arterial or collector streets in such a way that the number of intersections with such arterials or collectors shall be minimized. 4. Street right-of-ways and pavement shall be adequate to accommodate the type of volume of traffic anticipated to be generated thereon. Curb radii at intersections shall be at least fifty (50) feet. Curb radii at driveway intersections shall be at least twenty-five (25) feet. C. Building Setback Lines Building setback lines shall be as specified by the Zoning Ordinance. D. Utilities Nonresidential sub-divisions shall be provided with water and sewerage systems, which are adequate to maintain adequate health standards, and to dispose of commercial and industrial wastes. These facilities shall be approved by the West Virginia Department of Health, and the Martinsburg-Berkeley County Health Department. E. Drainage The Planning Commission shall require adequate provisions for the discharge of surface water which will result from commercial and industrial developments with large roof areas and large paved parking areas. 216 29 Page ARTICLE VIII ADMINISTRATION SECTION 1. HARDSHIP Where the Planning Commission finds that extraordinary hardships may result from strict compliance with these regulations, it may vary the regulations so that substantial justice may be done and the public interest secured; provided that such variation will not have the effect of nullifying the intent and purpose the Comprehensive Development Plan or these regulations. The Planning Commission shall determine extraordinary hardship only if it finds all of the following facts in regard to the sub-division: 1. That the land is of such shape or size, or is affected by such topographical conditions, or is subject to such title limitations of record that it is impossible or impractical for the subdivider to comply with all of the regulations of this Ordinance. 2. That the granting of the Variance will not be detrimental to the public welfare or injurious to other property in the vicinity of the subject property. SECTION 2. LARGE-SCALE DEVELOPMENT The standards and requirements of these regulations may be modified by the Planning Commission in the case of a plan and program for a complete community, or a neighborhood unit, which in the judgment of the Planning Commission provides adequate public spaces and improvements for the circulation, recreation, light, air, and service needs of the tract when fully developed and populated, and that also provides such covenants or other legal provisions as will assure conformity to and achievement of the plan. SECTION 3. CONDITIONS In granting Variances and modifications, the Planning Commission may require such conditions as will, in its judgment, secure substantially the objectives of the standards or requirements so varied or modified. SECTION 4. APPEAL A decision of the Planning Commission may be reviewed by certiorari procedure. A petition for review shall specify the grounds upon which the petition alleges the illegality of the Commission’s action. Such petition must be filed in the Circuit Court of the County within thirty (30) days after the date of such decision. Page217 30 ARTICLE IX ORDINANCE PROVISIONS SECTION 1. AMENDMENTS The regulations set forth in this Ordinance may from time to time be amended, supplemented, changed, or repealed, provided however that no such action may be taken until after a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen (15) days’ notice of the time and place of such hearing shall be published in a newspaper of general circulation in the City. Any proposed amendment shall be submitted to the Planning Commission for report and recommendation prior to any action thereon by the City Council. SECTION 2. PLATS FILED WITHOUT APPROVAL After the adoption of these regulations, the filing and recording of a plat involving the sub-division of lands covered by these regulations shall be without legal effect unless approved by the Planning Commission. SECTION 3: REPEAL OF CONFLICTING ORDINANCES All ordinances or parts of ordinances in conflict with this Ordinance, or inconsistent with the provisions of this Ordinance, are hereby repealed to the extent necessary to give this Ordinance full force and effect. This Ordinance shall become effective on September 11, 1969. SECTION 4. SEPARABILITY Should any section or provision of this Ordinance be declared by the courts to be unconstitutional or invalid, such decision shall not affect the validity of the Ordinance as a whole, or any part thereof other than the part so declared to be unconstitutional or invalid. Page 21831
