Agenda - Planning Commission - 05/04/2006

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Page 6--April 10, 2006 -- again with a list of conditions. In it~ approval letter, the department specifically referred to the construction of a silo to be used for cement storage and transfer. Harmony built the silo, and began storing freight and cement there and in the open on its property. In 1987, it also began storing large quantities of mulch and other landscaping materials. Harmony erected fences and attempted to plant the trees as mandated by the f'zrst permit, but many of the trees died, and those that did not only grew to be about eight feet tall. In 2003, the zoning department informed Harmony that the storage of mulch was beyond the scope of the second conditional use permit. The board later notified Harmony that, due in part to the lack of the mandated trees, it was also in violation of the screening ordinance. The department told Harmony that it had to apply for eithe_[ a new conditional use permit or modification of the existing perm/ts. Harmony appealed the department's demands to the Board of Adjustment, arguing that the second permit did not limit what it could store on its property to cement. Harmony also argued that it should not have to apply for a new permit, and challenged the screening ordinance that required stored equipment and mater/als to be screened by fences or trees. The board upheld the department's decisions, and Harmony appealed. DECISION: Board's decisions affirmed in part and reversed in part. The court affirmed that the storage of landscaping mater/als was outside ~e scope of Harmony's permit atid that Harmony must abide by the screening ordinance. However, it reversed the board's decision that allowed the depart- ment continued jurisdiction over the existing permits. Harmony argued that the board had erred in its determination that the stor- age of mulch was not authorized by the second permit. It said that its applica- tion clearly requested the use of the property for general storage, and that the department's approval of the application should have encompassed this use. It further argued that the board had erred by using minutes from the department administrative hearing and Ianguage from its approval letter to determine the scope of the permit. The court agreed that the letter, which specifically approved the permit to store cement, was not relevant. However, in the absence of specific language in the official written decision -- a standardized form that merely stated that the permit had been approved-- the court found that it was permissible for the board to consult the hearing rmnutes to determine the scope of the permit. The court found it reasonable that, after reviewing the minutes, the board would agree that the expectation of the department was for the facility to be used for cement storage and transfer, or for freight directly related to those uses. The court sided with the board's determinations, with the exception of the continuing jurisdiction provision added to the approval letter for the f'trst permit. The court stated that the department could not merely add a condition to a letter © 2006 Quintan Publisl~ing Group. Any reproduction is pronibitecL For more information please call {617) 542-0048. 58