Agenda - Planning Commission - 02/03/2005

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Page 4 -- December 24, 20Oi Ordinance -- Ordinance fails to include parking requirements for tour boats - Zoning commission bases decision on restaurant ~equirements Citation: Merry Cha~ers LLC v. Town of Stoningcon, U.S. District Court for the District of Connecticut, No. 3.'02CV336(MRK) (2004) CONNECTICUT (10/27/04) --Merry Charters LLC Was a commercial tour boat business. Under local law,'Merry Charters had to apply for a zoning permit to use its dock cornmercially. During the application proceedings, the Department of Environmental Pro- tection raised concerns over public ~access, sewage, and the project's lack of on-site parking. The local zoning code did not specifically list parking requirements for tour boats. Consequently, the zoning commission chose to use the same parking requirements that applied to restaurants. As such, the zoning commission de- term/ned Merry Charters needed 15 on-site parking spaces. Merry Charters proposed satisfying the parking requirement by leashag 15 spaces from a church approximately 1,200 feet from the dock. Ultimately, this proposal, and the underlying permit application, was denied. Merry Charters sued, arguing the zoning commission's actions were arbi- trary and capricious. DECISION: Judgment in favor of the zoning commission. The cmran_ission's actions were neither arbitrary nor irrational': '. There were no clear guidelines in the zoning regulations on tour boat opera- tions, or on substituting distant off-site parking for on-site parking. Since the commission had no specific guidelines to follow, it legitimately exercised its dis- cretion under.the zoning regulations to interpret and apply the general principles of the zoning regulations to Merry Charters' special parking requests. Under state law, before a zoning entity could determine whether a special use was permitted as of right, it was required to judge whether any concerns, such as parking or traffic, would adversely impact the neighborhood. Only if the commission determined a special permit satisfied all these concerns would it no longer have discretion in awarding the special use. The court determined the record did not support the argument that special use would not adversely affect the neighborhood as evidenced by the consid- erable concern of the Department of Environmental Protection and the town's zoning commission. As such, the zoning comrrfission was clearly within its discretion in denying the permit. see also: Carlton v. Mystic Transportatio~ b~c., 202 K3d ]29 (2000). see also: Ifilla.ge of Witlowbrook v. Olech, 528 U.S. 562, 120 & Ct. 1073, 145 L.E. 2d ~/060 (2000~. 90 2004 ,.~uinlan Puolismng Group. Any reproduction is pro,qibited. For more information please call (61.7) 542-0048.