Agenda - Planning Commission - 06/05/2003

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z,g. May 10, 2003 -- Page 7 The reasons given for denying the permit were related only to aesthetics, wkich under state law was not a valid basis by itself for making a zoning deci- sion. The court looked at other decisions where aesthetics considerations im- pacted the decision to deny a similar permit. In each case, there were other reasons cited. Cellular also failed to meet its burden of showing the denial of the spec.iai use permit constituted a prohibition of wireless service. Here, a special use permit for a shorter tower was granted, which suggested that future efforts to find other solutions would not be fruitless. Citation: USCOC of Virginia RSA #3 Inc. v. Montgomery County Board of Supervisors, U. S. District Court for the._Western District of Virginia, Roanoke Div., 'No. 7.'02cv0t065 (2003). see also: Southwestern BellMobile System Inc. v. Todd, 244.F. 3d 51 (2001). see also: AT&T Wireless PCS Inc. v. City Council of City of Virginia Beach, 979 ESupp. 416 (1997). Variance -- Property straddleS' bUsiness 'and:zoning 'district Owner seeks to expand gas station to include store, car wash, and restaurant NEW HAMPSHIRE (02/27/03) -- The owner of a gas station filed a site plan to expand the use of the property to include a convenience store, car wash, and fast food facility. The previous owner had acquired .a variance in 1966 to use the property as a gas station because the property was in two zoning districts. One district was B-3 (business) and the other was RM-10 (residential). The law provided, '~I'he regulations prescribed by this chapter for the least restricted district may apply to the remainder of said tot up to a distance of not more than 50 feet." The new structures were to be outside the 50-foot limit, and there were no plans to expand the driveway size although it had been the same since 1966. Local citizens objected to the expansion and challenged the plan. How- ever, the city code enforcement officer decided the plan was in compliance with the local ordinance. The citizens appealed to the zoning board of adjust- ment, which upheld the officer's decision. The citizens appealed to court, con- tending the owner could not expand his gas station without board approval and the new expansion would cause the driveway and various utility lines to ex- tend within 50 feet of the residential zone. The court upheld the board de'cision, and the citizens appealed again. DECISION: Affirmed. Nothing in the statute provided the property owner had to have board ap- proval pr[or to extending the usage of his property. Thus, the owner had the authority to extend the use of the property as permitted under the terms of the ordinance prior to board approval. 445