Agenda - Planning Commission - 12/06/2007

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i ( "J i I i i i \ . !! Ii I I I \ i ! i I' I I i i I I I I ; (~.) I I I I I : i I I : \ : I: I I I: I : I : i . I : I: i I i \ I i 1 November 1, 20071 Volume 11 No. 21 j \ mitring "the enlargement or extension of no more than 50% of the floor area of a nonconforming use, as measured from the date the use first became nonconforming." A neighboring property owner, Louchheim, appealed the board's decision, which the board affirmed.. Louchheim then appealed the board's decision to court. The trial court affirmed the board's deci- sion, and Louchheim appealed again. Decision: Reversed. Generally, a c'ourt would not upset the decision of an administra- tive zoning agency unless there was evidence in the record that showed the board's decision was arbitrary and capricious or based on an error of law. Here, the crux of the issue was when exactly the land use became nonconforming, because, under the ordinance, the amount that the floor area could be expanded depended on the floor area of the building when it first became a nonconforming use. It was undisputed that the first ot the two structures was built prior to the enactment of the town's first zoning ordinance in 1957. The second structure was added in 1964. A building permit and a certificate of occupancy were issued before the second building was constructed. In granting the variance, the board had concluded that the first structure was not a nonconforming use. The board reasoned that the permit and certificate of occupancy would not have been is- sued for the second structure if the first was nonconforming. The appeals court disagreed. The use as migrant housing became nonconforming upon the enactment of the 1957 ordinance. When the second structure was added, the zoning ordinance in effect at that time allowed for the expansion of the existing nonconforming use to include the second structure. The board incorrectly interpreted the issuance of a certificate of occupancy as evidence of the existence of a conforming use. Thus, the grant of the present variance had to be applied to the floor area existing when the use first became nonconforming in 1957. Because the board based the variance on the floor area of both buildings, it exceeded the 50 percent provision and was therefore in violation of the ordinance. 5 41