Agenda - Planning Commission - 08/05/2004

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Page 6 -- July I 0, 2004 g.B, DECISION: Affirmed. The county's home rule resolution was illegal. The resolution failed because it was contrary, to an act of the state legisla- ture. The legislature had rese~wed excbtsive jurisdiction in this particular area by enacting a law of uniform application throughout the state. Consequently, the state had preempted the field, and the county could not pass laws limiting confined animal feeding operations. As the county admitted, local law prohibited what state taw permitted. There was no language in the county home rule statutes or cases to .justify the county's attempt to distinguish express from implicit statutory permission for 'a given confined animal feeding operation activity. What was not prohibited by the statutory confined animal feeding opera- tion provisions was necessarily permitted by such provisions. The county's argument there was no conflict was based on words and not substance. 5 see also: Wiltictmsort v. Cfm, of brays, 64 P. 3d 364 (2003). see also: Board of Lincoln Co~tnFy Commissioners v. Nielander, 62 P3d 247 (2003). 140 Appeal -- Zoning board of appeals believes it cannot hear appeals for. variances from special use permits Developer wants to build gasoline filling station Citatiom' Real Holding Corporation v. Lehigh, Court of Appeals, of lVew York, zVo. 58 (2004) NEW YORK (05/06/04) -- Real Holding Company wanted to ~evelop a new gasoline filling station. In order to do so, Real was obliged to obtain a special permit from the town planning board. However, Real failed to satisfy two distance require- ments. Specifically, the town code mandated 1,000 feet between a gasoline station and certain residentially zoned lands, and 2,500 feet between it and other filling stations. Real applied to the zoning board of appeals for a variance from the dis- tance requirements. However, the board refused to hear the matter because it believed it lacked the power to do so. Real sued, and the court ruled in its favor, finding the board was required to hear its appeal. The board of zoning appeals appealed, again arguing it (:outd not hear quests for variances from special use permits because it was not specifically empowered to do so by the town board. DECISI©N: Affirmed. lt. was clear the zoning board of appeals could grant area variances from special use permit requirements. 2004 Qumlan Publishing Group. Any reprouuction is prohibited. For more information please call [617) 542-0048.