Agenda - Planning Commission - 11/07/1996

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Page 8 -- October 1996 Z.B. : Several years later, the town amended its land-use ordinance. The new or- _ dinance prohibited dredging gravel lower than five feet above the seasonal 7 high water table. Nonconforming dredging could continue, however, if the pit ~ was legally operating on April 24, 1993; the operator timely submitted to the ~ town required site documentation; and the nonconforming use was not expanded. The code enforcement officer told the company to stop digging gravel from lower than five feet above the seasonal high water table. The company ap- pealed to the town Zoning Board of Appeals. The board found digging deeper did not constitute expansion of a nonconforming use, and voted to allow the i company to continue digging. Shortly after, the town Board of Selectmen asked the zoning board to re- consider its decision based on new information. Aerial photographs showed no i gravel pit existed at the site in 1975. Therefore, under the Site Location of Development Act, the company needed site approval from the Board of Envi- ronmentaI Protection before it could operate the gravel pit. The zoning board reversed its earlier decision. It found the mining of gravel started after 1970, so it was not grandfathered as the former owner had claimed. L Therefore, the pit was not legally operating on April 24, 1993. The company appealed to court, but the court affirmed the zoning board's decision. The company appealed again. It argu.ed even if the pit wasn't legally oper- ating on April 24, 1993, it relied on the enforcement officer's assurance that the pit was lawful and should not be forced to stop digging, tt also claimed that since the town never took action against the gravel pit for operating illegally, the town'was barred from enforcing the Ordinance against it. DECISI'ON: Affirmed. The environmental department conditioned its approval of the gravel min- ing on whether the informatiori about the pit's existence in 1970 was accurate; it was not. Therefore, the company was not legally operating the gravel pit on April 24, 1993 and violated the amended zoning ordinance. The company's reliance on the enforcement officer's assurances was un- reasonable. The environmental department specifically conditioned its approval on whether the information the company Supplied was accurate. Ignoring this condition, the company went ahead and told the enforcement officer the pit was grandfathered. Based on this, the officer incorrectly said the pit had vested rights as a nonconforming use. The enforcement officer gave the company no indication about whether the gravel pit was actually legal, and the company incorrectly assumed it could go ahead with operations. That the town had not taken action earlier was irrelevant. Without inspect- ing the status of all gravel pits in Wells, the town had no way of knowing the pit was operating in violation of approval requirements. The company could not use this as a defense to why the town should not enforce its zoning ordinance. Town of Falmouth v. Long, 578 A.2d 1168 (1990).