MARTINSBURG — Monday’s City of Martinsburg Board of Zoning Appeals meeting saw conversation surrounding issues regarding zoning ordinances in city limits connected to the selling of vape products.
Mohammed Nahshal, owner of USA Tobacco and Vape at 704 Winchester Ave., addressed the board to discuss the inspections, renovations and investments he’s already been through in light of a recent notification that his store may not be allowed within its current zone — an urban residential zone.
While the city’s zoning ordinance allows vape product to be sold, floor space dedicated to such must be under 50% of the store, which Nahshal said it was.
In the end, the board encouraged Nahshal to provide evidence he met the less-than-50% threshold to move forward with the opening of his business.
According to official documents for the meeting, the applicant, Nahshal, requested an administrative appeal, pursuant to the Martinsburg Zoning Ordinance, to have a tobacco and vape shop at 704 Winchester Ave. in the urban residential zone.
“I am writing to you with a plea to allow me to receive the zoning permit needed to open my store,” Nahshal wrote. “I was recently notified that the zoning permit has been changed so that vapes and vaping products are not allowed to be sold in that area. I have been renovating, gathering inventory and doing the necessary steps to open this store since August. For four months now, I have had several meetings and inspections with the city in which no one informed me that we were unable to sell vaping products in that area.”
There were four separate inspections, in which an added wall, exit signs, fire extinguishers, removal of fire hazards and a plumbing permit for an added bathroom were checked, according to Nahshal. He added that during these meetings and inspections, it was clear that vapes would be sold, as well as tobacco products. He reported that he has already invested close to $200,000 into the store.
“If I was told early on the zoning did not allow vaping products, then I would not have continued to invest money, time and effort into the store. Not being able to open this store would be a great loss for me,” he added in the letter to the board.
After reporting to have complied with all the necessary changes requested to receive the zoning permit, Nahshal requested the help of the board of zoning appeals to assist him in continuing to move forward in opening the store.
“The property owner was informed via telephone conversation in the spring of 2021 that a tobacco/vape shop was permitted at that location as a non-conforming use. The owner or applicant conducted building remodeling without a building permit during the summer of 2021. In July 2021, the new zoning ordinance was adopted. Numerous attempts were made to contact the owner to obtain a permit with no response,” the official staff report states. “A building inspector, fire inspector and city planner conducted a U&O inspection and found the work was not up to code nor permitted and requested permits for the completed work. Once the permits were submitted and reviewed, it was determined that the use was not permitted at that location. The ordinance permits ‘cigar, cigarette and tobacco’ stores within the urban residential zone by right as neighborhood retail but not ‘electronic cigarette/vaporizer’ stores.”’
According to the ordinance, “A business establishment for which more than fifty percent (50%) of the floor area is dedicated to the storage, mixing, display, and/or retail sale of electronic cigarette devices, nicotine-enriched solutions, and/or liquid products that are manufactured for use with electronic cigarettes, the following supplemental use regulations apply: a.) applicants shall present information to the building code official regarding proper ventilation and b.) outdoor use prohibited, in all districts, this use is prohibited in outdoor spaces.”
Dana Keith, City of Martinsburg planner, said that at the meeting on Monday, Nahshal claimed that he was following the regulations by having less than 50% of the floor area dedicated to vape products.
“The board upheld the planning staff decision and said the applicant should come back to work with them,” she reported.
She added that it was encouraged that Nahshal come back and submit a floor plan to prove the statement made regarding the dedicated vape product floor space being under 50%.