Agenda - Planning Commission - 03/06/2008

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.1 '!! . '. il II :1 1\ 11 \1 il 1\ .1 H II ;1 Ii II II Ii Ii li 'j I: \1 .1 Ii !i II Ii !( I' j: p I I I' I I: I: /. i' Ii I' !: 1 !: i I I i i \' (;?-~\ iI j' " () , .' ( ) "'--../ January 25, 20081 Volume 21 No.2 The town's development ordinance provided that an application for a conditional use permit should be issued unless: 1} the request- ed permit was not within the town board's jurisdiction; 2) the ap- plication was incomplete; or 3) the proposed development would not c;omply with one or more requirements of the ordinance. In addition, even if the permit-issuing board (here, the com- mission) found that an application complied with all other pro- visions, it could still deny the permit if it concluded that certain conditions existed. These conditions included if the development would: "materially endanger" the public health or safety; "sub- stantially injure" the value of adjoining or. abutting property; not be in harmony with the area in which it was to be located; or not be in general conformity with the land-use plan or other plan of- ficially adopted by the commission. The appeals court noted that, under state case law, a use includ- ed as a conditional use in a particular zoning district was automati- cally considered harmonious with the area. Once this compatibility was established, the commission could find that the use would not be in harmony with the area only if there was competent, material, and substantial evidence to ~upport such a finding. At the public hearing,Fhe commission found that Habitat's plans for its proposed development met the requirements of the zoning district and the development ordinance, but there was a potential traffic safety issue. On appeal, the commission did not defend the contention that the construction posed a public health or safety issue; rather, the commission argued only that there was competent, material, and substantial. evidence in' the record to support their finding that the subdivision would not be in har- mony with the area. The commission's only evidence in support of the harmony is- sue was the testimony of four residents at the public hearing. The appeals court found that the "gist of the opponents' objection [was] that they did not want the rural nature of their property to be compromised by a subdivision." However, the mere fact that a proposed development in a conditional use permit application had not taken place already was insufficient to rebut an implied showing of harmony. Because the commission did not have competent, material evi- dence of a material nature to rebut Habitat's showing of harm:o- ny with the area, the lower court had not erred when it reversed 5 133