Agenda - Planning Commission - 10/02/2003

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Page 2 -- August 25, 2003 7..Bl 100 'Variance -- Coffee shop seeks to sell non-intoxicating beer Idquor establishment can't be located within 300feet of church, school, or other liquor establishment WEST VIRGI2s'-L& (7/2/03) -- Jeanme's Coffee Shop, owned by Mound City Inc., was located adjacent to a two-story house owned by the Burkeys. The Burkeys used their building as both a residence and a law office. The coffee shop was open 24 hours a day, seven days a week. The shop owner and operator intended to apply for a license for the sale of non-intox/- caring beer. The relevant statute provided it was. unlawful for any liquor estab- lishment "to. be located within 300 feet of any other liquor establishment, church, or school." Since the coffee shop was located within 300 feet of one or more liquor establishments, and withhn 300 feet of a local church, the shop would be re- quired to seek a zoning var/ance. The municipal zoning officer denied the request, and the shop appealed ro the board of zoning appeMs. The board condudted a hearing on-.Feb. 3, 1999, and the shop owners appeared, speaking in favor of the vahance. The Burkeys also appeared, but opposed the request. The Burkeys argued they experienced on-going problems in a 9-foot alley separating their property. and the coffee shop. They claimed to have observed illicit drug use, sexual incidents, urinating, and teenage drinking in the alley, and the ~anting of the variance would only exacerbate these problems. The Burkeys also claimed all property owners within 200 feet of the sub- ject area did not receive proper notice. The board voted four to one to ~ant the var/ance, but no findings of fact or conclusions were included in the decision. There was no transcript and no evi- dence the board addressed the concerns of the Burkeys. The Burkeys sued, asking the court to prevent the sale of non-intoxicating beer at the coffee shop. They also alleged the board acted improperly by failing to set forth substanti,Ye facts for ~anting the variance and for faSling to give proper notice to all interested landowners. The court directed the board to "present material to show the grounds of the decision or order appealed." The board then sent a number of letters and documents related to this case but did not provide any reasoning for the ~ant of the variance. The court upheld the board's decision stating the board "obvi- ously felt the variance was.proper, andin equity, and fa/mess should be ~anted." The Bm'keys appealed. DECISION: Reversed. The court agreed the board failed to communicate or set forth any factual or legal basis for granting the vahance. The court noted that when an adrrfinistrative body, such as the board, had the power to decide on special exceptions or conditional uses, the body had to set forth facts and a basis so that a reviewing court could ascertain whether the ad- ministrative decision conformed to the standards in the relevant zoph~ng ordinance.