Councilman David Thomas at city council's June 17 meeting, where members voted to unanimously accept the recommendation of the Planning Commission to deny a request to rezone 67 S. Kanawha St.

Council officially denies request to rezone South Kanawha Street lot

BUCKHANNON – The final verdict is in: The City of Buckhannon has denied a request to rezone a lot on South Kanawha Street on the basis that the change would likely violate state code.

Should the request to rezone the lot at 67 South Kanawha Street have been approved, it may have led to the construction of a bank and accompanying drive-thru lot.

At its June 17 meeting, Buckhannon City Council unanimously approving the Planning Commission’s recommendation to deny a request to change the zoning of 67 S. Kanawha Street from an R-2 residential zone to a C-2 commercial space based on information that the change would likely constitute “spot zoning,” which is illegal.

The discussion at the June 17 meeting began with Buckhannon mayor Robbie Skinner reviewing the process the city must follow when it receives any petition to rezone an area. Skinner also briefed council on what had transpired since the property owner, Dr. Burton Abel, had submitted a petition to the city in April to rezone the lot as commercial so he could sell property to BCBank. (The petition indicated BCBank planned to relocate there from its current headquarters in Northridge Plaza and construct a financial branch – one that would encompass a drive-thru – in the currently vacant lot.)

Skinner said council heard public comments on the petition at its April 15 meeting and, per protocol, forwarded it to the Planning Commission. The Planning Commission then scheduled a special meeting June 1 to hear additional public comments on the proposal.

“The Planning Commission met on June 1, and they did take public comment,” Skinner said. “They had conversations amongst members of the Planning Commission. [What happens then is] the Planning Commission refers it back to City Council for final consideration from us … and when they refer it, they would either refer it with a suggestion that we accept the zoning change or, otherwise, deny the zoning change.”

The nine-member commission’s recommendation was to deny the zoning change.

“As you’ll see on the agenda, they are recommending to the city council that the city council deny the request to change the zone at 67 South Kanawha Street,” the mayor said.

City attorney Tom O’Neill outlined the commission’s rationale.

“The reason why they are recommending a denial is because the request, if granted, would constitute a spot zone which is illegal,” O’Neill said.

“Spot zoning” occurs when one property is rezoned, but other contiguous properties are not rezoned, or, in other words, no contiguous connection to other commercially zoned lots, the city attorney said.

“There are several reasons why a zoning request may be denied, and the main one that you would ordinarily use is because the zoning request does not comply with the Comprehensive Plan of the city,” O’Neill said. “That [conclusion] requires specific findings, which requires [additional documentation].”

The Buckhannon 2025 Plan is the city’s Comprehensive Plan, which state code requires municipalities to develop every 10 years “to provide direction to municipal leaders on the recommendations of stakeholders in the community.”

However, O’Neill said the denial wasn’t based on the request’s compliance or noncompliance with the Buckhannon 2025 Plan.

“This is a denial based on the fact that it constitutes a ‘spot zone,’ which is just illegal as a matter of state law,” O’Neill said.

He noted that when the application was submitted, city officials and other parties were under the impression that North Central Episcopal Church lot, located at 65 S. Kanawha Street, would also be rezoned.

“When this application was originally made, the representation was made that the Episcopal Church (North Central Episcopal Church), which is next to the property, was on board with this, but it turns out the church was not … ultimately part of the application,” he said. “That would turn this request into a request for a spot zone, which is not legal, so that’s the basis of the recommendation which is important to note for the record.”

Councilman David Thomas said it seemed like the Planning Commission’s and city council’s hands were tied.
“We couldn’t accept it anyway because it’s illegal, isn’t that right, Tom?” Thomas asked O’Neill.

“You could, but it would subject to being overturned by the courts,” the city attorney replied.

Thomas made a motion to accept the recommendation to deny the rezoning request, which was seconded by councilwoman Mary Albaugh prior to passing unanimously.

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