Agenda - Planning Commission - 08/03/2006

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(- \ Z.B. July 10,2006 - Page 3 r"' . r . I. \ made a number of physical improvements to the property without seeking zoning" approval from the board. In May 2002, the club submitted a zoning application to the town's zoning administrator that listed 19 proposed improvements to the property. The zoning administrator approved the application with the notation "no new work to be completed~ brings site into conformance." The zoning administrator posted the permit as required by statute. No appeals were filed within the 15-day appeal period. On June 18,2002, neighboring landowners sent a letter to the zoning admin- istrator challenging the club's expansion of its nonconforming use and com- . plaining of the noise and activity level of the club. The zoning administrator _ responded that he had approved the zoning permit and that the approval was not appealed within the recognized appeal period. The zoning administrator also stated that there was no expansion of the nonconforming use. The land- owners appealed the zoning administrator's decision to the board. The board acknowledged that the zoning administrator did not have the authority to approve the permit application but ruled that, nonetheless, the issuance of the permit became final when it was not appealed. The landowners then appealed the board's decision to court. The trial court ruled that preexisting nonconforming uses could con- tinue to exist in their nonconforming status; however, no improvements could be approved without review by the board. Although it upheld the zoning administrator's mistakenly-issued permit for the completed improve- ments to the facility, the court found that the resulting changes did not confer conforming use status on the club. The court stated that future changes or expansion of the nonconforming use would require approval from the board. The club appealed the decision to the state supreme court. DECISION: Affinned. The club agreed that the zoning administrator had no power to approve the permit application~ however, it argued that the trial court had erred by ruling that the permit only applied to the structural improvements already completed and not to its use status. The club also contended that under the "doctrine of exclusive remedy," which provided that - absent an appeal- zoning deci- sions were considered final, the zoning administrator's permit conferred con- forming use status on the facility. The scope of the supreme court's review of the lower court's decision was limited to whether its interpretation of the local zoning ordinance was errone- ous, arbitrary, or capricious. The club was required to obtain a zoning permit prior to making any physical improvements to the property. The physical im- provements and any increase or expansion of uses were clearly independent of each other. {( @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 87