Agenda - Planning Commission - 04/01/1997

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Page 2 -- February 25, 1997 Z.B. Conditional Use -- Neighbor objects to board's approval of garage expansion Fitanides v. City of Saco, 684 A.2d 421 (Maine) 1996 Giarusso owned and operated a used car business in a commercial district in the city of Saco, Maine. Under the city's zoning ordinance, automobile dealers and automobile repair garages were permitted in that district as conditional uses. Giarusso applied to the city Planning Board for a conditional use permit to expand his business. He proposed to add a garage to an existing structure on the lot. After three meetings, the planning board approved the conditional use permit. It found "all zoning requirements [had] been met, specifically, with respect to ... nonconformance of the lot and existing structure." Fitanides, who lived and owned a business across the street from Giarusso, attended and participated in the three meetings. He appealed the planning board's decision to the Zoning Board of Appeals (ZBA), claiming (among other things not discussed here) Giarusso's lot and the existing structure on it were nonconforming, and the used car business was a nonconforming use. According to Fitanides, Giarusso needed a variance to expand his business, not a conditional use permit, because of the lot's nonconforming status. Under the ordinance, structures that had been built on nonconforming lots before the ordinance was enacted could be modified without a variance, as long as the modifications complied with the ordinance. Structures that themselves were nonconforming could be modified without a Variance as long as the modifications met setback and height requirements. Also, the modifications -- together with the existing structure-- could not exceed the maximum lot coverage. After the ZBA upheld the board's approval, Fitanides asked a court to review its decision. The court affirmed the ZBA's decision. Fita'nides appealed. DECISION: Affirmed. Giarusso needed only a conditional Use permit, not a variance. Despite the planning board's findings, which menti6ned the "nonconformance of the 10t and existing structure," neither the lot nor the existing structure was nonconforming. Under the ordinance, car dealerships and repair garages were conditional uses, which meant they were permitted. Nonconforming uses were defined as uses that were ~zot permitted. Even if the lot and structure were nonconforming, Giarusso's proposal wouldn't require a variance under the ordinance. The existing and proposed structures met all the ordinance's dimensional requirements, including those for setback and height, and together would not cover more than 50 percent of the lot (which apparently was within the limits). Conditional Use -- Board limits gas station's hours and food sales BP Oil Co. v. City of Dayto~ Board of Zo~ingAppeals, 672 N.E.2d 256 (Ot~io) ] 996 BP Oil Company ran an auto service station and convenience store in a community business district in Dayton, Ohio. The service station was a