Agenda - Planning Commission - 10/02/2003

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August 25, 2003 -- Page 3 Citation:: Burkey v. The Board of Zoning Appeals of the City of MoundxviIle, Suprem~ Court of Appeals of West i/~rginia,. No. 31060 (2003). Special Exception -- Mini-storage facility on land bordering residential area Permit denied because inconsistent with tnaster plan NEW YORK (6/13/03) -- Property owners applied for a special exception use permit, which would allow them to build a mini-storage facility on land zoned major arterial to a depth of 300 feet and commercial from then On. The lot bordered a residential area. The town planning board determined such a facility would not be an al- lowed use in major arterial and commercial zoning districts and would be in- consistent with the-intent of the area's master Plan- The town board agreed with the planning board, and the owners sued, claim- ing a mini-storage facility was a commercial or business enterprise within the meaning Of the zoning ordinance. They also argued such a use was permitted in arterial districts and, subject to being granted a special exception permit,/n a commercial district. DECISION: Affirmed. The court agreed the planning board was inconsistent in interpreting the operative language of the zoning ordinance with other s/mi]ar applications. Thus, there was an apparent patent ambiguity in the language of the ordinance. It followed that the provisions of the zoning ordinance Should be construed against the town and in favor of the owners. Here, the court reasoned that there was a "well established but countervailing precept that zoning restrictions are in derogation of the common law and, as such, must be strictly construed against the municipality which enacted and seeks to enforce them, and that the ambiguity in the language employed must be resolved in favor of the property owner." Nevertheless, a mini-storage facility located on the subject lot, adjacent to a residential area, would conflict with the master plan. One of the master plan's provisions was this type of commercial development should be restricted to newly created business park districts so as to avoid "negative impact upon ex. isting residential areas." Citation: Matter of Francis Development and Management Co. [_nc. v. Town of Clarence, Supreme Court of New York, App. Div., 4th Dept., No. CA 02~02755 (2003). Home Businesses -- Hand painted clothing busLness operates in home Town orders business to stop using nonresident employees MASSACHUSETTS (7/2/03) -- Burnham started a small business from her home in 1985 applying her own floral designs to pre-manufactured clothing. At the start, this was a one-person operation that ultimately grew to become a successful cottage industry. 101