Agenda - Planning Commission - 07/10/2006

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$une25,2006--Page7 Board of Appeals for a special exception permit to sell and process bottled waten In November 1997, the board voted to approve FWC's perm/t with conditions. On March 28, 1998, the town enacted a land use ordinance that required planning board approval for any use that extracted more than 10,000 gallons of groundwater per day. The permit was a one-time rather than annual require- ment. Under this ordinance, FWC's use was an ex/sting, nonconforming use. However, the ordinance mandated that any expansion of an ex/sting, noncon- forming use would require planning board approval. In March 2004, SF, LLC, an abutter to FWC's property, notified the town's code enforcement officer that FWC had expanded their nonconforming use illegally and asked the town to issue a cease and desist order. The code en- forcement officer declined to issue the'cease and desist order, and SF appealed the decision to the board. After a hearing, the board ruled that FWC had ex[~anded its ex/sting, non- conforming use impermissibly and ordered FWC to comply with the ordinance. FWC appealed the board's decision to court. The court vacated the board's decision on the grounds that SF lacked standing to bring an appeal to the board and because the board did not have the jurisdiction to review the code enforce- ment officer's decision. The court found that the board could require FWC to maintain performance standards, but it could not require FWC to obtain a permit under the ordinance. The board and SF appealed the decision. DECISION:Affirmed, To have standing to appeal the code enforcement officer's decision to the board, a party must have been affected directly or indirectly by the officer's decision or failure to act. SF had a pending application to pump groundwater and was therefore a potential competitor of FWC. The appeals court ruled that this potential for damage was sufficient to confer standing; however, the board and SF did not succeed in establishing that FWC had expanded its nonconforming use; The ordinance def'med an expansion of use as an increase in hours or seasons of operation, or an increase in floor or ground area dedicated to the use. SF contended that the expansion of the existing, nonconforming use was evidenced by three building permits for the construction of outbuildings in 2002 and 2003 and that FWC pumped an avenge 240,370 gallons of water per day in 1997 versus an average of 583,279 gallons per day in 2003. SF and the board contended that the pumping of additional water was an expansion of use. However, the court four.d that there was nothing in the record that sup- ported the claim that the 2002 or 2003 perm/ts resulted in the k/nd of expansion that was addressed in the ordinance. The court also found that merely pumping more water did not, under the ordinance, constitute an expansion of use. There- fore, the judgment of the lower court was aWn'med. see also: Rowe v. Ci~. of S. Portland, 730 A.2d 673 (I999). see also: Sproul v. Town of f3oothbay Harbor 746 A.2d 368 (2000). @ 2006 Ouinlar~ Publishing Group. Any reprocluctton is prohibite~. For more information please call (617~ 542-0048. 185