(a) General Provisions.
(1) Accessory Uses Allowed. Accessory Uses as listed in Table 1327-1, Table of Permissible Uses, are allowed only in connection with the lawfully established Principal Uses. Accessory Uses for nonconforming Principal Uses and Structures are addressed in Article 1329
, Supplemental Regulations.
(2) Allowed Uses. Allowed Accessory Uses are limited to those expressly regulated in this Article as well as those that, in the determination of the City Engineer/Planning Director or designee, satisfy the following criteria:
A. They are customarily found in conjunction with the subject Principal Use(s) or Principal Structure;
B. They are subordinate and clearly incidental to the Principal Use(s) of the property; and
C. They serve a necessary function for the comfort, safety or convenience of occupants of the Principal Use(s).
(4) Time of Construction and Establishment. Accessory Uses shall be established only after the Principal Use of the subject property is in place.
(5) Location. Accessory Uses must be located on the same lot as the Principal Use to which they are accessory, unless otherwise expressly stated.
(b) Accessory Residential Uses.
(1) Accessory Dwelling Unit. A Dwelling Unit that is associated with and is incidental to another Dwelling Unit on the same Lot which serves as the Lot’s Principal Use. The following supplemental use regulations apply:
A. A property owner must file a Use and Occupancy Permit for an accessory dwelling unit prior to its recognition as an accessory dwelling unit. The property proposed for an accessory Dwelling Unit must contain one, but no more than one, residential structure occupied as a one-unit dwelling.
B. The property must be owner-occupied, either in the Principal Structure or principal Dwelling Unit, or in the Accessory Dwelling Unit and be related to at least one (1) adult occupying the Accessory Dwelling Unit by blood, marriage, adoption, custodianship, or guardianship.
C. At any one time, the number of dwellers in an Accessory Dwelling Unit shall be limited to:
1. One (1) adult and minor children related to said adult by blood, marriage, adoption, custodianship, or guardianship,
2. Two (2) adults (in total) and minor children related to at least one of the adults by blood, marriage, adoption, custodianship, or guardianship.
D. The Accessory Dwelling Unit shall be located either:
1. In a detached accessory structure occupied, or formerly occupied, on the first floor by a garage, barn, or similar Accessory Use; or
2. In a Principal Structure, provided that there is a separate entrance to the exterior or to an unconditioned porch type space.
E. The Usable Floor Area of the accessory Dwelling Unit shall not exceed fifty percent (50%) of the Usable Floor Area of the principal dwelling unit or 1,000 square feet, whichever is less. Exterior patios, decks, porches, and staircases providing interior access from the principal unit to the accessory Dwelling Unit will not be counted toward the Usable Floor Area of the accessory Dwelling Unit.
F. Parking for the Accessory Dwelling Unit must be provided on-site in accordance with the parking requirements specified in the Martinsburg Subdivision and Land Development Ordinance.
G. The orientation of the proposed accessory Dwelling Unit shall, to the maximum extent practical, maintain the privacy of residents in adjacent Dwellings as determined by the physical characteristics surrounding the accessory Dwelling Unit including landscaped screening, fencing, and window and door placement. The exterior entrance of an accessory Dwelling Unit located in a Principal Structure shall not be visible from the front right of way. A separate numeric address for the accessory apartment is prohibited.
H. No new, separate utility connection may be installed for the accessory Dwelling Unit in a Principal Structure, unless more than one utility connection already serves the lot, to the location of the proposed accessory Dwelling Unit, at the time of the application for the accessory Dwelling Unit.
I. The Lot size must be a minimum of 7,500 square feet.
(2) Home Child Care. Supplementary, temporary care of children, unrelated to the caregiver, on a regularly recurring basis for a portion of one (1) or more days in the week and provided in the home of the caregiver. The following supplemental use regulations apply:
A. Limited Attendees. More than six (6) and fewer than thirteen (13) children may be cared for at a time. Six (6) or fewer children is considered a Home Occupation. Thirteen (13) or more children is considered a Child Day Care Center.
B. Outdoor Play Area. Home Child Care shall include a fenced outdoor play area.
C. Accessory Use. Home Child Care may only be an Accessory Use to the Principal Use of Household Living.
D. State Licensing Requirements. All applicable provisions of West Virginia Code Chapter 49-2-113 and related federal and state codes shall be met.
E. Revocation. The City Engineer/Planning Director or designee shall have discretion to revoke a Use and Occupancy Permit for home Child Care if such Use is a Nuisance to neighboring properties.
F. Limited Number. The number of Home Child Care Accessory Uses on any zoning Lot shall not exceed one (1).
(3) Home Occupation. A Use that is clearly subordinate and incidental to the Principal Use as a residence and is conducted in a Dwelling Unit by permanent residents thereof by one or more members of the occupying household and does not alter the exterior of the Building or its appearance.
A. Included Uses. Home Occupation includes the following and other uses deemed similar by the City Engineer/Planning Director or designee: accountant, artist, attorney, author, computer operator or programmer, child care of six (6) or fewer children, designer (computer, graphic, architect, interior, etc.) home crafts, seamstress or tailor, sales person or representative (no on-site retail or wholesale transactions), tutoring, and instruction of craft and fine art.
B. Excluded Uses. Home Occupation excludes such Uses, as otherwise defined in these regulations, Civic and Institutional Uses; Retail Uses; Service Uses other than photography studio, tailor or seamstress, therapeutic massage establishment (licensed proprietor).
C. The following supplemental use regulations apply:
1. Advertisement. Offering, displaying or advertising any commodity or service for sale on the premises is prohibited, except that an identification Sign is permitted in accordance with the regulations of Article 1331
, Signs.
2. Outside Storage. No materials or products shall be stored outside of a Building.
3. Area. The customary home occupation shall not occupy more than twenty five percent (25%) of the Usable Floor Area of a Dwelling Unit in which the Home Occupation is operated.
4. Employees. Employment is limited to any member of the immediate household residing in the Dwelling Unit plus one Person not residing in the Dwelling Unit.
5. Hours of Operation. Permitted hours of operation are 7:00 a.m. to 6:00 p.m..
6. Limited Attendees. Up to four (4) attendees may be served or instructed at a time, except as provided for in Home Child Care.
7. Residence. The operator of the Home Occupation shall reside in the Dwelling Unit in which the Home Occupation operates.
8. Physical Appearance. The appearance of the Structure shall conform to the general character of the area.
9. Vehicles. No more than one (1) motor Vehicle shall be used in connection with a Home Occupation.
a. The Vehicle shall be of a type ordinarily used for conventional private passenger transportation, such as a passenger automobile, van, or pickup truck not exceeding a payload capacity of one (1) ton.
b. The Vehicle shall not be designed to carry more than twelve (12) Persons.
c. Parking of the vehicle must be accommodated on site.
(4) Room Rental.
A. Pursuant to West Virginia Code Chapter 8, Article 1, Section 5A(k), municipalities may not prohibit or effectively limit the rental of a property, in whole or in part, or regulate the duration, frequency, or location of such rental, in whole or in part.
B. A municipality may regulate activities that arise when a property is used as a rental provided that such regulation applies uniformly to all properties, without regard to whether such properties are used as a rental provided, that nothing in §8-1-5A et. seq. may be construed to prohibit a municipality from imposing a hotel occupancy tax as prescribed in §7-18-1 et. seq. of the Code.
C. All Room Rental Uses shall be registered as a permitted Use with the City.
(c) Accessory Commercial Uses.
(1) Drive-Through Facility. A type of drive-in establishment related to a Coffee Shop, Eating Place, Financial Depository Institution/Bank, and Laundromat and Dry Cleaning subject to Section 1327.08
(e), Services Uses, or to a Drug or Cosmetic Store allowed pursuant to Section 1327.08
(d), Retail Uses, where part of its retail or service character is dependent on providing a Driveway approach or parking spaces for motor Vehicles to either serve patrons food or beverage while in the motor Vehicle or else intended to permit consumption in the motor Vehicle of food or beverage obtained by a patron from such business establishment. The following supplemental regulations apply:
A. Layout. Refer to Figure 1327-1, Drive-Through Facility for one illustration of the following requirements.
1. Structure/Canopy. Drive-Through structures or canopies shall be located on the rear Facade of the Building or in the rear of the Lot behind the Building, where permitted by Use. The Structure shall not be visible from the front Lot line or any primary Street.
2. Stacking Lanes. Stacking lanes shall be located perpendicular to the front Lot line or behind the Building.
3. Materials. The canopy and Structure shall be constructed of the same materials utilized on the Building.
4. Drive Locations. There shall be a minimum distance of forty (40) feet between any two (2) curb cuts and a minimum distance of twenty-five (25) feet between any curb cut and the corner of any Corner Lot which is at the intersection of two (2) Streets.
Figure 1327-1 - Drive Through Facility
B. Recommendations. A recommendation in support of the drive-through is required from the City Engineer/Planning Director or designee, subject to the conditions of this section. The City Engineer/Planning Director or designee shall specifically approve each entrance and exit to any facility.
C. Lot Requirements. There shall be a minimum Lot area of 15,000 square feet and a minimum lot width of one hundred twenty (120) feet;
D. Front Yard Landscape. The area between the Building Line and the front Lot line not utilized for Driveways shall be landscaped with year-round plantings so as to prohibit parking over the Building Line.
E. Proximity to Residential. The Drive-through facility shall not be located directly abutting any lot in a Residential District or any Lot containing a Dwelling.
F. Proximity to Other Drive-Through Facilities. The drive-through facility shall not be located within a three hundred (300) feet radius of another drive-through facility.
G. Pedestrian Convenience and Safety. In the opinion of the City Engineer/Planning Director or designee, the drive- through facility shall not be located near other Uses where the location of such facility would be detrimental to pedestrian convenience or safety.
H. Additional Requirements. In addition to these conditions, the City may require an applicant to modify a Site Plan to provide for sufficient pedestrian amenities, reduce the negative visual impact, and/or provide better circulation and parking so as to reduce the potential for accidents and the impact the proposed Use may have on neighboring development when the City Planning Department suggests such modifications are desirable. Such modifications to a Site Plan may include, but are not limited to, additional landscaping and screening, redesign of parking areas, relocation of entrances/exits and curb cuts and the limitation of the size and number of Signs.
(2) Outdoor Café. Tables and chairs for patrons of Eating and Drinking Establishments located outdoors and directly adjacent to the Structure containing the associated Use. The following supplemental use regulations apply:
A. The Outdoor Café (including outdoor seating areas) may be permitted as an Accessory Use to an existing restaurant, delicatessen, or food store provided vehicular and pedestrian circulation is not unreasonably restricted pursuant to the Encroachment requirements specified in Section 1329.05
;
B. Location.
1. The Outdoor Café may be located anywhere on the Lot, or on the adjacent right-of-way, provided that, if it is located in the right-of- way, a minimum of five (5) feet of Sidewalk shall remain available and obstacle-free for passing pedestrians.
2. The Outdoor Café shall be located directly adjacent to the Principal Use.
3. The Outdoor Café not associated with additional construction and located fully on the Lot are subject to administrative approval by the City Engineer/Planning Director or designee.
4. The Outdoor Café is not subject to Building Line requirements or Front Yard or corner side setbacks.
C. Limited outside Sidewalk sales of perishable and consumable items (produce, ice cream, newspapers, magazines, soft drinks, etc.) may be permitted in conjunction with an outdoor café provided that the outdoor display and sale is approved pursuant to the supplemental regulations outlined for “Outdoor Display and Sale of Merchandise” below; and
D. If the Outdoor Café does not consistently comply with all conditions listed in this subsection and its Use and Occupancy Permit, or if the Use becomes a nuisance for any reason as determined by the City Engineer/Planning Director or designee, the City Engineer/Planning Director or designee may order such Use terminated. For purposes of this subsection a “nuisance” shall not be deemed limited to the existence of the conditions referenced in Section 1329.10
but shall instead be deemed to include any condition considered a nuisance under applicable law.
E. This subsection applies to any and all Uses of land or Structures, including existing Uses and Structures.
F. Maximum Size. The total area occupied by the Outdoor Café shall not exceed six hundred (600) square feet in area in the public right-of-way and may not exceed one hundred percent (100%) of the square footage of the active commercial floor area (exclusive of kitchen, office and storage areas) of the indoor portion of the eating and drinking establishment.
G. Enclosure. The Outdoor Café shall be enclosed by a fence with a minimum height thirty (30) inches and a maximum of forty-two (42) inches. All construction in the right-of-way shall be fully removable during the off-season or when the Outdoor Café is not in use. No chain link fencing, plastic fencing, or other material not durable enough to endure the season shall be utilized. Steel or colored PVC may be used. For outdoor seating areas of eight (8) chairs or fewer, the preceding enclosure requirements may be waived by the City Engineer/Planning Director or designee, as applicable, upon a determination that an enclosure may cause undue interference with the public right-of-way or is unnecessary because of site conditions.
H. Cover. The Outdoor Café may have a covering or overhead enclosure and shall be open-air.
I. Alcoholic Beverage Retails Sales. The Outdoor Café use involving the lawful retail sale of alcoholic liquor that operates as a retail licensee pursuant to the provisions of the West Virginia State Retail Liquor License Act, West Virginia Code, Chapter 60.
(3) Outdoor Storage. Permanent outdoor storage of goods not typically housed or sold indoors, such as large-scale materials and building and landscape supplies. The following supplemental use regulations apply:
A. Outdoor storage areas shall be located in the Rear or Side Yard of the Lot.
B. Loose materials shall not be stacked higher than ten (10) feet.
C. Loose materials shall at a minimum be stored in a three (3)-sided shelter and shall be covered.
D. Materials shall be set back a minimum of five (5) feet from any Lot line.
E. All outdoor storage areas shall be screened from view of adjacent parcels and street rights-of-way.
(4) Limited Video Lottery. Limited Video Lottery is defined and regulated pursuant to West Virginia Code, Chapter 29, Article 22b, Limited Video Lottery Act. The additional supplemental regulations shall apply:
A. Limited Video Lottery shall only be permitted as an accessory use to the principal use of a restaurant; For the purposes of this section, restaurants are defined as a structure in which the principle use is the preparation and service of food and beverages to its customers. Customers may consume food and beverages either inside or outside the structure or take the products off premises to consume as allowed by applicable laws.
B. Limited Video Lottery machines must be in a separate room, closed-off from the restaurant and/or bar area and not visible to general restaurant patrons.
C. Applicant must submit detailed floor plan with the special exception application and the City Engineer/Planning Director or designee may inspect the area prior to the public hearing by the Board of Zoning Appeals;
D. Restaurant, not including kitchen and preparation area, storage and utility areas, restrooms, proposed limited video lottery room, and other areas not open to the general public, must have at least thirty (30) seats, five tables and have a gross floor area of at least eight hundred (800) square feet;
E. Restaurant must be in operation for a minimum of one calendar year prior to application for special exception and be open to the general public and include patrons under the age of eighteen (18) years old;
F. Structure containing video lottery machines is not located within three hundred (300) foot of a church or place of worship, school, park or recreational facility.
G. The aforementioned three hundred (300) foot prohibition for a church or place of worship, school, park or recreational facility shall be measured in a straight line from the nearest point of the exterior wall of a building containing a limited video lottery establishment to the nearest exterior wall of a building containing of a church or place of worship, school, recreational facility or property line of a park, irrespective of other uses that may exist on the property.
H. The City Engineer/Planning Director or designee may revoke applicant's special exception application if applicant fails to meet and/or maintain any of the conditions listed within the aforesaid section.
(5) Parking. Parking as an Accessory Use in conjunction with an adjacent Principal Use on the lot.
A. Parking Lot. A parking lot is a Paved Surface used solely for the parking of Vehicles, intended for use by the occupants in an adjacent building on the Lot. A parking lot may be uncovered or covered by a Renewable Energy Structure.
B. Parking Structure. An Accessory Structure used solely for the parking of Vehicles, intended for use by the occupants in an adjacent building on the Lot. The following supplemental use regulations apply:
1. Location. An accessory parking structure shall be located as follows:
a. Parking structures shall be located in the Rear Yard only and shall be screened from view from the front of the lot or the primary Street to the Principal Use Structure.
2. Height. The maximum height of parking structure shall be no greater than regulatory height of the Principal Use Structure.
E. The following supplemental use regulations apply:
1. Parking Lots in Parks. New parking lots may be permitted in public parks through a Site Plan application pursuant to the requirements specified in the Subdivision and Land Development Ordinance.
(Ord. 2021-07. Passed 7-21-21.)