Agenda - Planning Commission - 04/01/1997

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Z.B. February 25, 1997- Page 3 conditional ~use in the district. Although convenience food sales were not specifically listed as a permitted use in the zoning ordinance, the ordinance did specifically allow for such things as the sale of candy, tobacco' products, meat, periodicals and drugs. The zoning ordinance said that in granting a conditional use, the zoning board could impose conditions, safeguards and restrictions "upon the premises" benefited by that use "as may be necessary ... to reduce or minimize any potentially injurious effect of such conditional uses." The ordinance did not define the phrase "permitted use"; however, zoning boards generally could not · i place conditions on a permitted use. BP applied to the zoning board for a permit to remodel its gas station and convenience; store. The board held several hearings, some open to the public. Many community members did not want BP to sell food at night because they felt it would ~ncourage loitering and increase crime. Evidence showed the police were called to the station almost 500 times in one year. BP argued a complete ban on food sales would hurt its business financially. It requested a compromise. The board finally issued BP a permit, but with limitations. BP could sell food until 11~ p.m., and only tobacco products and gas the rest of the night. BP also had to make restrooms available to the public from 6 a.m. to 11 p.m. BP appealed to court. It argued, among other things, that the board exceeded its authority by placing restrictions on a permitted use. To the contrary, the board claimed the ordinance's broad language, "upon the premises~' allowecl it to make restrictions regardless of whether the condition directly affected a permitted use. It also said it could place conditions on the site's use to promote the public welfare by making the area less conducive to loitering and crime. The court granted the board judgment without a trial, and BP appealed again. DECISION~ Reversed in part and returned to the lower court. The zoning Ordinance was ambiguous and did not authorize the zoning board to put restrictions on permitted uses. However, the case was returned so the board could address the loitering issue. The zoning ordinance was ambiguous about whether the board could place conditions on the site regardless of whether the condition was placed on a permitted use. When an ordinance was ambiguous, a court interpreted its language in ~favor of the property owner; in this case, BP. The zoning board could not place a condition on the permitted use of the property merely because it existed in ConjUnction with a conditional use. However, evidence showed BP and its staff did not adequately keep people from loitering on its premises, and that crime was a big problem. The court returned the case to the lower court with instructions to have the zoning board place new conditions on the premises based on the loitering problem. In placing new conditiohs, the board could not directly burden the permitted use. It could,