Agenda - Planning Commission - 06/04/1996

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Page 4 -- May 1996 Z.B. board iasked the zoning board to interpret its 1975 decision as it related to Crowl~y s plans. Cr0wley, protesting the decision that the 1975 variance needed clarifica- tion, flue times unsuccessfully renewed his application to the plan.ning board. In 1990, he asked the zoning board to find he could rely on the 1975 variance, and asked for all other necessary variances and permits to build the retail build- ing. The zoning board rejected Crowley's proposal because it was for retail use; thc 1975 variance applied only to office uses. Cr0wley kept pressing his case with both boards over the next year. In December 1991 his mortgagee took the property, and he sued both boards and their members in federal court. He claimed their refusals to apply the 1975 variance to his plans violated his due process rights. He also claimed the boards violate4 his equal protection rights because they granted parking variances to other p~operty owners regardless of their intended uses. The [court dismissed Crowley's claims, and Crowley appealed. DECISI'ON: Affirmed. The lower court properly dismissed Crowley's claims. Crowley had no pro- tected pi'operty interest in either the 1975 parking variance or a new one, nor did he prove the boards selectively enforced the zoning and building regula- tions against him. The village's zoning and building regulations gave the zoning board dis- cretion t9 grant or deny variances. The 1975 variance was explicitly condi- tioned on. exclusive office use. Crowley could not claim 14 years later he was entitled 11o have the ordinance apply to his development, especially since the developrhent would be for retail use. Since Crowley had no property interest in the 1975 ~,ariance, it did not matter whether the zoning board arbitrarily denied his application. Cro~ley did not prove the boards treated him differently from similarly situated property owners. He did not point to any owners who successfully asked the'board to apply a stale variance to a revised use. Even'if he did, he did not prov~ the boards singled him out with malice or bad faith. RRI R~alty Corp. v. Incorporated Village of Southampton, 870 F.2d 911 (1989). LaTri~.ste Restaurant &. Cabaret Inc. v. V~llage of Port Chester, 40 F. 3d 597 (1994). NonconfOrming Use-- Longtime Oil Use Threatened by Change to Fishing Business Ka-Hur Enterprises Inc. v. Zoning Board of Appeals of Provincetown, 661 N.';E. 2d 120 (Massachusetts) 1996 Before 1951, .the owner of 30 Harry Kemp Way in Provincetown, Mass., used the p~.operty for fuel oil storage and distribution. In 1951, the town adopted its first zoning ordinance, which put the property in a residential district. How- ever, the o]1 storage and distribution facility was still allowed as a prior non- conforming use.