Agenda - Planning Commission - 11/06/2008

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.~.::.=~=......~"""'.,.~--~_.~-~-_. ------ --- I I' 1\ II 'I I 1\ II i i ~ I ! i I il , i i i I II ,I II 11 () ...----..., ( ). " I' October 25, 2008\ Volume 21 No. 20 Seventeen Oaks appealed to the town's zoning boa~d of appeals (ZBA). It argued that it had a legal nonconforming use. . At a ZBA hearing on the matter, there was. testimony about food vendors on the .property since the 1950s. Christopher Parslow, a neighbor, also spoke at the hearing. He argued that food vending was not a preexisiting, legal non-conforming use on the property because: (1) any preexisting food vending use was on Lot 3; and (2) a house existed on Lot 2 until 1994, thus eliminating any preexisting, non- . conforming commercial use. The ZBA reversed'the decision of the zoning officer and allowed Seventeen Oaks to continue to operate Miss Patsy's Kitchen and sell food on Lot 2. Parslow appealed. The superior court found for Parslow. It reversed the ZBNs decision. Seventeen Oaks appealed. DECISION: Affirmed. (,..J .The court concluded that Miss Patsy's Kitchen was an illegal use of the residential property by Seventeen Oaks, and therefore the ZBNs decision was illegal. In reaching its conclusion, the court explained that a nonconform- ing use ran with the land and was not personal in nature. Thus, a nonconforming use did not follow a landowner to a separate parcel, but stayed with the original parcel only. Seventeen Oaks had argued that Lot 2 and Lot 3 were treated as one yard and t4at the preexisting nonconforming commercial use was over both properties. Parslow had emphasized that. Lot 2 and. Lot 3 were tWo separate parcels. He argued that any preexisting non- conforming use only occurred on Lot 3 and could not now be moved to Lot 2. He also argued that even if there had been a pre-existing, legal nonconforming use on Lot 2, the fact that a house existed on Lot 2 until 1994 eliminated the legality of that commercial use. The court agreed with Parslow. It found that there was no evidence of food vending on Lot 2 prior to Miss Patsy's Kitchen. In regard to the food cart that had allegedly once existed on Lot 3, the court found there was no evidence supporting Seventeen Oaks' argument such as evidence of: its size; where it was located; or that it was a permanent fixture like Miss Patsy's Kitchen. Accordingly, the court conduded that it would violate the towil's zoning regulations to: extend com- mercial use to Lot 2 from Lot 3; or to move a nonconforming use from one property to another. In any ca1?e; the court also found that @ 2008' Thomson ReutersIWest 11 91