Agenda - Planning Commission - 02/03/2005

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December 24, 2004 Page '7 Kipp acknowledged his expanded mining operation would produce dust and noise, but he claimed those effects would-be..ameliorated by his proposed permit conditions of a, 50-foot setback'requirement and the building of an 8- foot-high mound. However, tCipp's own witness, stated the mound would be constructed only as the mining expansion proceeded through the property. Consequently, it would not be fully in piac,e until substantial miffing had occurred. The property in question was in close proximity to 27 residences. By con- trast, the current mine affected Only two or three residences. Ultimately, the board could .log!tally infer the proposed expansion would increase the detrimental effects of the current mining operation, and that these effects could not be contained bypermit conditions. see also: Henley v. YoungstoWn BOard of Zoning Appeals, 735 N.E.2d 433 (2000). see also: Gillespie v. Stow, 584 N.E. 2d 1280 (1989). Variance -- Variances only allowed for hardships not caused by landowner Landowner argues spirit of zoning code allows Variance Citation: Wiles v. City of Highland Planning & Zoning Commission Board of Adjustment, Court of Appeals of Arkansas, Div. 1, No. CA 04-149 (2004) ARKANSAS (1.1/03/04) -- Wiles Was ~ the outdoor advertising business for approximately 20 years, and he °wned a billboard grandfathered in as a non- conforming use. Wiles relocated and upgraded the billboard. Wiles did not seek approval' before he moved the billboard and made various modifications. As a result, the billboard was still too close to. residences to conform to the zoning code. The city challenged the billboard, and Wiles applied for a variance. The variance was denied. Wiles sued, and the court ruled in favor of the city. Wiles appealed. DECISION: Affirmed. Wiles was not entitled to a variance. Under the ordinance, a person was only entitled to a variance if he or she demonstrated :special conditions that were not the result of the person's actions. Wiles had moved the billboard approximately 40 feet. As long as Wiles was maintaining and improving the existing grandfathered billboard, no variance was necessary. However, when he relocated his billboard, he was required to bring it in compliance with the zoning regulations or get a variance. This move violated the ordinance and resulted in the loss of the exemption allowing the sign. Although Wiles claimed he was entitled to a variance because strict en- forcement would result in undue hardship, and granting a variance would be in the spirit of the zoning code. these were not considerations contained within 2004 Ouinlan Publishing Group. Any reprOducii°n is prOhibited. For more information please call (617) 542-0048. - i 93