Agenda - Planning Commission - 02/02/1999

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Page 4- January 10, 1999 Z.B. outweighed any detriment to the town. In denying the variance, the zoning board relied on incorrect statements that the Witzls didn't follow through with the board's suggestion that they seek subdivision 'approval. The board also failed to consider that it denied their first application because it believed subdivision was more appropriate and that the planning board denied the suggested subdivision application and in turn sug- gested the Witzls return to the zoning board to get an area variance. Nothing showed the board considered the appropriate statutory factors in denying the variance. The board denied the second variance request primarily because building on the lot wouldn't conform to the 5-acre requirement -- which was the very reason the Witzls sought the variance. Nothing showed granting the varianc, e would cause environmental problems or produce unde- sirable changes in the neighborhood. In ~a:ct~ many of the lots in the area w'~re significantly less than 5 acres. see also: Sasso v. Osgood, 657 N. E.2d 254. Permitted Use Can commission prohibit permitted rise-based, on incompa':bility with area? .. .' .'.: ~. Cita:ion: SecureCar~ Self Stor[~ge I~zc. v..City of Colo~:ado Spring"sl Coai't oj~ Appeals'gfColef'a~o,.Div. $.}'No.... '97C.A1670 (1998). , .'i' ... : , .... SecurcCare owned 4.4 acres of undev, eloped property zor~ed."planned busi- ness' center", in Colorado Springs, Colo. Under.the zoning code, an ownei had tO have the. city approve, a development, plan-before building, in this 'zone. SecureCare Submitted a dzvelopmem plah providing for mini-warehouses on the entire parcel, a permitted use. The city approved the plan. Later, SecureCare agreed to sell 1 acre of its parcel to Amoco, which planned to build a service station, a car wash, and a convenience store. SecureCare and Amoco applied to amend the development plan to include Amoco's proposed uses, which the zoning code expressly designated as permitted uses. The planning commission rejected the amended development plan, finding Amoco's proposed uses weren't compatible with the surrounding neighbor- hood. The city council affirmed the board's decision. SecureCare appealed to court, claiming the city couldn't deny its develop- ment plan because all of the proposed uses were permitted uses. The planning commission said the ordinance that outlined the criteria for reviewing devel- opment plans allowed it to consider whether the proposed use w.,,.a.s compatible with the surrounding neighborhood. The court concluded the commission's decision to deny' specifically permitted uses was an arbitrary and illegal attempt to rezone the property. The city appealed. DECISION: Affirmed. By denying a permitted use, the commission was trying to illegally rezone SecureCare's property.