WEST VIRGINIA RECORD

WINFIELD – A Winfield convenience store is violating a Putnam County zoning ordinance by renting UHauls, according to a lawsuit.

The Putnam County Board of Zoning Appeals filed the complaint Feb. 27 against River Cities Foodmart of Winfield, which does business as Friendly Mart of Winfield.

In the complaint, Assistant Prosecuting Attorney Jennifer D. Scragg asks that Circuit Judge Ed Eagloski issue an injunction against the defendant directing it to remove structures that violate the zoning ordinance for zoned unincorporated areas of the county.

The ordinance, according to the complaint, requires a special permit for the use of land zoned as "C-2 High Density Commercial" for automobile sales, which includes rental or lease of vehicles.

Scragg goes on to detail the history of the business, which is located where U.S. 35 and W.Va. 34 intersect.

In April 2006, the defendant received approval to operate a gas and convenience store. It has been opened since spring 2007, but Friendly Mart also rents and stores UHauls on the land.

"The Zoning Ordinance prohibits the use of the parcels for purposes of renting and storing UHaul vehicles unless the business has a 'special permit,'" the complaint states.

The defendant was first told it couldn't operate the UHaul business in a letter dated April 11, 2007. Later that month, Putnam County Planning Director Sandra Mellert spoke with Bobby Muncy, president of the defendant company, and told him that zoning required a 20-foot setback along W.Va. 34 and along U.S. 35 where no vehicles could be parked. But she said a possible plan for getting a special permit could include extending parking in the back of the store.

In May 2007, the Planning Office prepared a Notice of Violation, notifying Friendly Mart it had 10 days to apply for a special permit. On June 15, 2007, the defendant applied for the permit. On July 3, the Planning Office told the defendant that the application was incomplete and needed to submit a list of property owners within 250 feet of the business and envelopes for each. The application also included a plan for parking within the setback areas along the highways.

The Planning Office, according to the complaint, sent more letters in July, August, September, October and November so the issue could be heard at the office's monthly meetings. On Nov. 2, Muncy submitted a revised site plan.

On Nov. 7, the Planning Office visited the site and took photographs of UHauls parked within both 20-foot setbacks and in places outside of the proposed parking areas.

The next day, at the monthly Planning Office meeting, Muncy said if a UHaul were parked by a customer outside of the proposed parking areas that it could take up to 24 hours to remove and re-park the vehicle. The Board also voted to deny the defendant's special permit.

The reasons given were that the parking plan was inadequate for the parking needs to lease and store UHauls, UHaul vehicles were parked in the highway setback areas, the intersection is one of high traffic, the UHauls created visibility and safety issues and that it could take up to 24 hours for the defendant to move vehicles from the setback areas.

In a Nov. 9 letter, the Planning Office advised Friendly Mart that it had 30 days to appeal. Otherwise, all UHauls must be removed within 30 days of the Nov. 8 decision.

On Dec. 11 and Dec. 19, the UHauls still were parked in violation of the Zoning Ordinance, according to the complaint. On Dec. 19, the office hand delivered a notice of violation to Muncy saying he had until Dec. 28 to remove the UHaul equipment.

On Jan. 4 and Jan. 7, the UHauls still were there. On Jan. 10, the Board voted to seek an injunction against Friendly Mart and to refer it to the Putnam County Commission for assessment of fines.

More site visits occurred on Jan. 15, Jan. 22, Jan. 23, Jan. 25, Feb. 4, Feb. 6 and Feb. 11. The UHaul equipment remained on each visit, the complaint says. As of filing, the UHaul equipment remained.

Putnam Circuit Court case number: 08-C-66