Agenda - Planning Commission - 07/01/1997

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Z.B. June 10, 1997 - Page 5 didn't require the board to grant the special exception. Whether a special-exception applicant met the three conditions was a subjective determination that required the board's discretion. When presented with conflicting evidence, the board had to give more weight to one side to make a decision, and was entitled in this case to give it to the residents. Although it appeared, absent other evidence, that Crooked Creek met the three conditions, the residents' evidence showed otherwise. The residents' evidence was simply more persuasive. see also: Town of M errillville Board of Zoning Appeals v. Public Storage Inc., 568 N.E.2d 1092 (1991). see also: Ripley County Board of Zoning v. Rumpke of Indiana Inc., 663 N.E.2d 198 (1996). Permitted Use - Is stone removal permitted just because no law prohibits it? Leominster Materials Corp. v. Board of Appeals of Leominster, 677 N.E.2d 714 (Massachusetts) 1997 Leominster Materials Corp. (company) owned land in Leominster, Mass., from which it excavated and removed stone. Its neighbor complained to the city's inspection director that stone excavation wasn't a permitted use. The director agreed, and the company appealed the director's interpretation to the zoning board of appeals. After a hearing, the board upheld the director's decision. The company appealed to court. Under a section called "Generally Permitted Uses," the city's zoning ordinance explicitly permitted the removal of "soil, loam, sand or gravel" in all zoning districts, subject to city regulations. The company claimed this should be interpreted as permitting removal of earth products in general. It also pointed out there was no general ordinance prohibiting stone removal, so it was free to remove stone from its property without restriction. The court granted the board's request for judgment without a trial. It dismissed the company's complaint and ordered the company to pay court costs. The company appealed. DECISION: Affirmed, but modified. Stone excavation and removal was not a permitted use under the ordinance. Generally, when an ordinance explicitly permitted certain uses, any use not mentioned could be considered a deliberate omission; i.e., it was excluded because it wasn't allowed. The city's ordinance excluded stone excavation, so the company couldn't claim "soil, loam, sand or gravel" could be extended to apply to stone. Moreover, the omission of stone excavation as a prohibited use couldn't be interpreted to mean stone excavation was permitted. The lower court incorrectly ordered the company to pay court costs. Costs could be assessed against a party only if the party appealed to court "in bad faith or with malice." No evidence showed bad faith or malice motivated the Cft