Agenda - Planning Commission - 02/02/1999

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Page 6 January'10, 1999 Z:B. Airpage appealed to court again, seeking to annul the board's decision. The court dismissed its appeal, finding the evidence supported the board's decision. . · Airp. age appealed again. It argued the entire first floor of the building should be considered a legal nonconforming use because the company intended to use it for business purposes when it moved into the building in 1965. DECISION: Affirmed. Airpage failed to prove its business operations on th~ first floor qualified as a legal nonconforming use. The board was presented with conflicting evidence. The Company's owner and another person who had a continuing business relationship with the com- pany said the company had expanded into the first floor before the city rezoned the property to residential. However, former tenants said they had .occupied the entire first floor from 1974 to 1981. The board had the right to cred2 the statements of former tenants, who appeared to be disinterested Witnesses, over those of the busi~ess's owner and another person who continuczd to do consult- ing work for the c~mpany. It didn't matter that Airpage planned to use the f.:"st floor for bus:ness purposes when it moved into the building. Merely ~ ; i- lanmng oF. using the prop- erty in a certain manner didn't give the intended use a legal nonconforming z' xtus. see also: Toys "R" Us v. Silva, 676 N.E. 2d 862. Enforcement -- Is. private electric company exempt from local zoning regulations? Citation: Potomac Edison Co. v. Jefferson County Planning and Zoning Commission, Supreme Court of Appeals of West Virginia, No. 24994 (1998) Potomac Edison Co. was a private utility that provided electric power in Jefferson .County, .W. Va. Commercial and industrial expansion had increased demand for power in the county, so the utility began planning to bring high~ power transmission lines into the area ~ which would require a power substation. The utility met with the county planning commission to discuss building the substation. The commission pointed out that the proposed substation wasn't a permitted use because the land was zoned agricultural. The commission explained the process for requesting a variance or conditional use permit.. The utility responded.that the county's zoning regulations didn't apply because the substation was needed to support continued econo¢ic develop- ment in the county. The commission denied the utility's request f3~: an exemp- tion from zoning regulations and again told the utility how to apply for a vari- ance. Two years later, the utility used its condemnation powers and took the property by eminent domain. The utility applied to the planning commission for a federal storm-water permit. The commission told the utility it needed to apply for a variance as part of the permitting process because state law required the utility to get a "certifi-