Agenda - Planning Commission - 05/04/2006

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Page 4 --March 25, 2006 Z.B. height variance, there was nothing in the record to show that the change was arbitrary or capricious. see also: Center Shops of East Granby Inc. v. Planning and Zoning Commission, 727 A. 2d 807 (1999). see also: R&R Pool & Patio Inc. v. Zoning Board o£Appeals, 778 A.2d 6I (2001). Nuisance ~ Neighborhood groups protest new development plan Complain zoning board did not take nuisance concerns seriously Citation: Moore v. Metropolitan Board of Zoning Appeals, Court of Appeals of Tennessee, at Nashville, No. M2004-OO$53-COA-R3'CV (2006) TENNESSEE (02/03/06) -- A developer wanted to convert an old, nonconform- ing laundry and dry cleaning plant into a mixed-use development that would preserve the historic plant and shop and would adapt them for residential, retail, and commercial use. The plan also called for a large parking facility. As envisioned by the developers, the project would be consistent with the character of the surrounding residential neighborhood. Neighborhood ~oups opposed the plan, arguing that the new project and its construction would be a nuisance to the neighborhood. However, the Met- ropolitan Board of Zoning Appeals voted to approve the development plan. ~_' Moore, a neighboring property owner, sued the board. The court ruled in the board's favor. Moore appealed, arguing that the board acted unlawfully in not taking the neighbors' nuisance concerns into consideration. DECISION: Affirmed. The board did not act unlawfully or arbitrarily in making its decision. The board's recorded deliberations reflected its conclusion that the pro- posed development was not a nuisance per se and that it would be compatible with the surrounding neighborhood once it was completed. The board also determined that the proposed development could be constructed without cre- ating a nuisance. Thus, contrary to the residents' assertions that the board didn't listen to their nuisance concerns, the record demonstrated that the board acted to the fullest extent of its power to address those same concerns. State law stated that existing nonconforming uses could not be permitted to expand unless the property on which the expansion would occur had sufficient space to avoid nuisances to adjoining landowners. Consequently, the board of appeals initially had to determine if the property was large enough to accommo- date the proposed expansion. However, a board's determination that the property could appropriately accommodate a proposed expansion was not a guarantee that the property owner would not create a nuigance during the construction of the project. The © 2006 Quinian PuDlishing Group. Any reproduction is prohibited. For more information please cati (617) 542-0048. 48