Agenda - Planning Commission - 06/03/1997

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Page 6 - May 10, 1997 Z.B. .. In 1989, the town changed its town code to eliminate mining as a permissible use in agricultural-residential zones. This amendment outlined new procedures for getting permission to mine, requiring property owners to have their land . approved as a mining district and to get a permit from the Fenton Planning Board. Mines already in operation, like O'Brien's, could continue as grandfathered uses. In 1993, Fenton officials discovered that O'Brien's permit had expired two years earlier, and had not been renewed. The town informed O'Brien that his property had reverted to its original agricultural-residential classification. If O'Brien wanted to continue his mining operation, the town said, he would have to reapply and meet the conditions imposed on new mines. O'Brien reapplied for a permit, but his request was denied. O'Brien sued the town and asked for judgment without a trial. He asked the court to keep the town from interfering with his mine. The court rejected O'Brien's request, and a trial followed. O'Brien argued the passage ofthe 1989 amendment transformed his mining activity into a legal, nonconforming use of the property. Since he had not abandoned mining activity for a year or more, O'Brien said, he was entitled to continue mining. The town claimed O'Brien had in fact abandoned mining activity on the property for a considerable period of time - from 1991, when the original permit expired, to the end of 1994. The court found O'Brien's proof of continued mining operations for these years to be questionable, and concluded that mining activity had stopped during this period. As a result, the court said, the land had reverted to its earlier agricultural-residential status. O'Brien appealed. DECISION: Affirmed. The 1989 amendment made O'Brien's property a mining district, but the property didn't stay that way. O'Brien failed to prove he had continued mining activity from 1991 to 1994, so it was reasonable to conclude that operations had ceased during that period. That stoppage, combined with O'Brien's failure to renew his permit when it expired, supported the town's attempts to make him get a new permit. see also: Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 664 N.E.2d 1226. see also: Matter of Hess Realty Corp. v. Planning Commission of Town of Rotterdam, 603 N. Y.S.2d 95. Subdivision - County says developer's exemption from subdivision regulations doesn't count Three Guys Real Estate v. Harnett County, 480 S.E.2d 681 (North Carolina) 1997 Three Guys Real Estate owned 231 acres of undeveloped land in Harnett County, N.C. .LI7