Agenda - Planning Commission - 11/07/1996

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Z.B. October 1996 -- Page 7 trial court to have the board reconsider the application. The state Supreme Court agreed to review the appeals court's decision. DECISION: Reversed and returned to the lower court. The appeals court improperly reweighed the evidence when deciding whether the board's decision was supported by evidence. The case was re- turned to reinstate the trial court's judgment that the board properly denied O'DelI's application. The appeals court should not have evaluated whether the proposed subdi- vision violated zoning. All it should have done was decide whether the board's conclusion was based on competent evidence. The evidence showed subdividing the property would have negative con- sequences. The board based its decision on reasonable concerns of the fire chief, the Wildlife Department and the Soil Conservation District. Evidence also showed the proposal may have violated the county's master plan. Although O'Dell's property was rated as having only a low to' medium wildfire hazard, the appeals court failed to acknowledge that the county's zoning also recommended avoiding development in areas with limited access or single access by road. According to the fire chief, this was the case with O'Dell's property. Humana Inc. v. Board of Adjustment, 537_P..2d 741 (J975). Sundance Hills Homeowners Association v. Board of County Commissioners, 534 _P..2d 1212 (1975). Nonconforming Use -- Environmental Department conditions legality on accuracy ~of historical report H.E. Sargent Inc. v. Town of Wells, 676 A.2d 920 (Maine) 1996 In 1989, H.E. Sargent Inc. wanted to buy property in the town of Wells, Maine. Part of the property was used to mine gravel. The company proposed to excavate gravel from the pools on the floor of the existing pit 4o form a large permanent pond. The company sought an advisory opinion from the state Department of Environmental Protection. It told the department that, according to the property's current owner, the gravel pit had been grandfathered under the Site Location of Development Act. The Act said any development that did not exist as of Janu- ary 1, 1970, was barred from operation unless it had prior approval from the Board of Environmental Protection. The department responded in a letter that, assuming the information the company provided was correct, the company did not need to get a permit to excavate gravel. The company sent a copy of the letter to the town's code enforcement officer. In response, the officer said, without citing authority, that activity in the pit was ongoing and had attained vested rights. The company bought the property and began operations.