Agenda - Planning Commission - 06/04/1996

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Z.B. May 1996 -- Page 5 In 1979, a company acquired the property and used it for a fishing business and truck repair shop. The company had two 20,000-gallon tanks that stored oil, which it allegedly delivered to fishing boats and sometimes to its employ- ees' homes. However, neighbors said they never saw any trucks going to or from the property, and the town building inspector said during visits between 1985 and i987 -- he never saw evidence that the company used the property for oil storage and distribution. In 1987, Ka-Hur Enterprises Inc. bought the property. In the tanks, it stored oil; in various buildings, it kept five-gallon cans of oil, oil burners, oil tanks, and trucks. In 1992, Ka-Hur was ordered to drain the oil tanks because of a leaking valve, but continued storing the other items in the buildings. In 1993, Ka-Hur applied for a permit to install a new 25,000-gallon oil tank, remove the old ones, and do other improvements. The building inspector denied the request, saying the prior owner abandoned or discontinued the non- conforming use because of the way it used the property. Ka-Hur appealed the denial to the town Zoning Board of Appeals, and applied for special permits to change the nonconforming use. The board upheld the denial of the building permit and denied Ka-Hur's requests for special permits. Ka-Hur appealed to court. The court found the prior owner made oil stor- age and distribution an ancillary use to its fishing and truck repair business, thereby changing the nonconforming use. Because oil storage stayed a nonprimary use for more than two years (the period after which nonconform- ing uses could expire under state law and the town zoning bylaw), the court found it was no longer a protected nonconforming use. The court upheld the board's decision. Ka-Hur appealed, claiming the court could not find the nonconforming use discontinued unless evidence showed someone intended to abandon it. Ka-Hur also claimed the prior owner's fishing and truck repair business did not change the nonconforming use. DECISION: Affirmed. The lower court properly upheld the board's decision. Nobody had to intend to abandon the oil storage and distribution use for it to lose its protected non- conforming status. Because the property's primary use changed for more than two years, it lost that status. Contrary to Ka-Hur's claims, nobody had to intentionally give up the non- conforming use. The word "discontinued" did not have the same legal effect as the term "abandoned," which required intent. A party discontinued a use just by stopping it. The town's zoning bylaw stated a nonconforming use could expire either way. The lower court was not clearly wrong when it found Ka-Hur's proposed use did not have protected nonconforming status anymore. The use lost protec- tion when the prior owner changed the property's primary use to a fishing and truck repair business. Although Ka-Hur gave evidence that the prior owner