Agenda - Planning Commission - 12/03/2008

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(j .,~ ( ) I I II (--1) November 10, 20081 Volume 2\ No. 21 In 1969, the town enacted a new zoning ordinance that created several. districts and subdistricts, including an "AG Special Aggregates District" (the "AG District"). Quarrying was a permitted use in the AG District. All of BCSI's quarrying operations were conducted on that portion of BCSI's . property that was located in the AG District. The portion of BCSI'sprop- erty outside of the AG District consisted of propertY denominated as: par- cel5;subparcel25D; subparcels 28A and B,29A and B, and 30A and B; parcels 31 through 33; and subparcels 17025C and 12B/25I. BCSI brQught legal action, asking the court to declare that all quar- rying or minlng of its property situated outside of the AG District was permitted as a lawfulllonconforming use. The town asked the court to declare that specified real property was not entitled to nonconforming use status under its zoning ordinance. The court granted judgment declaring that the quarrying of subparcels 17C/25C and 12]3/251 was a lawful nonconforming use. It also declared that parcel 5, subparcels 25D, 28A andB, 29A andB, and 30A and B, and parcels 31 though 33 were not entitled to nonconforming use rights. Both BCSland the town app~aled. DECISION: Affirmed as modified. The court conclwied that none of BCSI's property outside of the AG District was entitled to nonconforming use status for quarrying or mining. The court explained that while n~nconforming uses were generally permitted to continue, they could not be enlarged as a matter of right. Moreover, the court noted that the law generally viewed nonconforming uses as detrimental to .the zoning scheme and the public policy of zoning. in the state was aimed at the reasonable restriction and eventual elimina- tion of nonconforming uses. BCSI had argued that parcel 5 had nonconforming use status because: (1) in 1951 BCSI's accounting department had indicated that it contained 5,000,000 tons of aggregates; (2) in 1963 BCSI had attempted to relo- cate a road that separated the parcel from BCSI's other lands; and (3) in 1958 there were 6,000 feet of 16-inch pipe running along the road by the parcel The court found the first two facts merely demonstrated an intended use of parcel 5 for quarrying and were insufficient to confer, nonconforming use status. The court also found that the pipe running by parcelS was "not evidence of infrastructure devoted to rn.i.ning similar to the networks of service roads" used in other mining operations. Furthe~, the court said that because parcel 5 was physically separated by a road from BCSl's other lands it could not have the protection of nonconform- ing use status; it was not possible to extend the protection of a permitted nonconforming use to physically separate though adjoining parcels. @ 2008 Thomson ReutersJWest 11 I. ! 73