Agenda - Planning Commission - 04/06/1999

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· Page 8 -- March 10, 1999 Z.B. discovered the previous owner never recorded the special exception. TWK asked the planning department to issue the special exception that the previous lawsuit had upheld. The planning department responded that it wouldn't issue a special exception for the project because the town's zoning ordinance had been changed and no longer allowed.multifamily housing in the district in question. TWK asked the zoning appeals board to issue the special exception. It also asked the board for a variance allowing it to complete the project. The board denied TWK's requests. TWK sued the board, seeking a court order requiring the board to issue the special exception. TWK would be entitled to such an order only if the board had no choice but to issue the special exception, TWK had a legal right to the special exception, and a court order was the only way to resolve the problem. TWK argued that the first requirement was met because the board had a mandatory duty to execute its decisions. TWK argued that the second require- ment was met because the right to the special exception was attached to the property, and not to the person who applied and received the special exception. Therefore, whoever owned the property had a legal right to have the special exception issued. TWK argued that the third requirement was met because the board refused to issue the special exception or grant a variance for the property. The board argued it had no duty to execute a special exception until the property owner recorded a copy in the land record office. It claimed even if the previous owner had recorded the exception, only the previous owner -- not TWK had a legal' right to the exception. Finally, the board argued TWK wasn't entitled to a court order because such an order wasn't the only means of resolving the issue TWK neither appealed the board's refusal to issue the Special exception nor its denial of TWK's variance request. DECISION: Request denied. TWK wasn't entitled to the order it sought. It had failed to appeal the zon- ing board's decision. TWK did meet two of the three requirements for the requesi~d order. As TWK argued, the board did have an affirmative duty to issue the special excep- tion once it had been granted by the town and approved in the previous lawsuit. In addition, TWK had a legal right to the special exception because the special exception related to the use of the property in question, .not the person who applied for and was granted the special exception. However, TWK wasn't entitled to the order requiring the board to issue the special exception because it had failed to exhaust all administrative remedies. TWK couldn't circumvent the normal land use appeals process by seeking a cOurt order requiring the board to issue the special exception. The board de- nied TWK's request for a special exception and its variance application, and TWK had the right to appeal the board's decision. see also: Department of Utilities of the City of Groton v. Carothers, 613 A.2d 316 (1992). see also: Young v. Chase, 557A.2d 134 (1989).