Agenda - Planning Commission - 08/04/1998

Home

Page 6 July 25, 1998 Z.B. According to the board, the ordinance wasn't preempted because the township was merely enforcing the location where skydiving occurred, not skydiving itself. The board pointed out that the FAA, in the same case the owners relied on, had said the ordinance in question wasn't preempted by federal law to the extent it regulated land use in the town. The court affirmed the board's decision, and the owners appealed again. DECISION: Affirmed. .. The township properly ordered the owners to shut down the skydiving busi- ness and properly cited them for zoning violations. The township wasn't trying to regulate skydiving; it was simply enforcing its zoning ordinance. The zoning ordinance didn't even mention skydiving; it simply listed the permitted uses in agricultural districts -- and skydiving wasn't one of them. Although the FAA regulated airports, it deferred to local mu- nicipalities with respect to land use regulations. If the owners were correct that local authorities had no right to regulate the location of a skydiving bfisiness, the owners could locate their business in any district -- which was absurd. The owners had no vested right to run a skydiving business .just because skydiving had occurred when the airport was built in 1969. They admitted that skydiving had lasted for only two or three years, so any lawful nonconforming status was lost once it was abandoned. Nor could the owners operate their business as an accessory use. They failed to provide any evidence the skydiving business was one that would customar- ily be found at an airport of similar size and location. see also: Blue Sky Entertainment v. Tow~ of Gardiner, 711 F. Supp. 678 (1989). Nonconforming Use -- Did town's conflicting zoning provisions give restaurant right to build basement? Citation: Two Lights Lobster S/lack v. Town of Cape Elizabeth, Supreme Judicial Court of Maine, Cum-97-30 (1998) Two Lights Lobster Shack Inc. ran a restaurant in a residential zone in Cape Elizabeth, Maine. The restaurant was also in a shoreland overlay zone. Both the Lobster Shack's use and its building were nonconforming under the town's zoning ordinance because restaurants weren't allowed in residential zones and the building violated the district's setback requirements. The Lobster Shack sought permission to build a foundation beneath the restaurant, creating a basement where only a crawlspace existed. It said it wanted to build the foundation to protect the building's structural integrity and to create more storage space. The town's shoreland provisions prohibited neither the construction of a new foundation nor the use of the resulting basement area. The town's noncon- forming use ordinance also didn't prohibit the construction of a basement, but it did prohibit extending a nonconforming use into additional parts of a I I I I I I I I I I I I I I I I I I