Agenda - Planning Commission - 02/01/2000

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Page 6 -- December 10, 1999 Z.g. a rear-lot line for irregularly shaped lots, the zoning ordinance's intent was to assure a minimum average width and consistency. The lot was 60 feet wide only at its front-lot line. The lot could achieve the minimum Width requirement only by treating the south-lot line as the rear-lot line. In light of the lot's patent lack of symmetry, the board was correct in determining the lot was irregularly shaped. Citation: Higgs v. Kirkbride, Supreme Court of Virginia,"Nos. 990006 & 990073 (1999). see also: Foster v. Geller, 449 S.E. 2d 802 (1994). see also: Masterson v. Board of Zoning Appeals, 353 S.E. 2d 727 (1987). Special Use Permit -- Neighbor claims telephone tower is a building in violation of the local zoning ordinance NEW YORK (I 1/4/99) -- The town'of Duanesburg's planning board approved an application by Cellular One for a special use permit to construct a 250-foot cellular telephone tower and a related utility building in the town's agricultural and rural residential district. A group of taxpayers gave the town written notice on three separate occa- sions that the number of antennae on the cellular telephone tower exceeded the number authorized by the special use permit: They claimed this use, along with artificial lights and reflecting devices on the tower, violated the town's zoning ordinance. Several months later, they gave the town' written notice the cellular telephone tower violated the 35-foot height restrictions for buildings imposed by the zoning ordinance. The town apparently took no action. Proper sued, seeking a court order to stop operations at the tower until it fixed its alleged violations of the zoning ordinance. Both Proper and Cellular One asked for judgment without a trial. The court dismissed the case against Cellular On6, and Proper appealed. DECISION: Affirmed. . The.zoning ordinance provided specific and mutually exclusive definitions of "building" and "public utility structures." The tower would logically be a public-utility structure rather than a building. This view was reinforced by the zoning ordinance's authorization of towers in the zone by special use permit. Considering the distinction between a special use permit and a variance and the fact transmission towers were almost invariably over 35 feet high, only a strained construction of the ordinance would limit towers to the 35-foot height restriction and require both a special use permit and a variance. Also, the permits issued did not contain any limitation concerning the num- ber of permitted antennae. Citation: Proper v. Southwestern Bell Mobile Systems, Supreme Court of New York, Appellate Div., 3rd Dept., No. 83841 (1999). ~