Agenda - Planning Commission - 08/29/2002

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116 Page 8 July 10, 2002 way commercial, which would have' allowed commercia and service busi- nesses serving the traveling PubLic. The county zoning commission (planning' board) recommended the zone change be canted, and the commissioners cop- ied the commissioners' positive and negative findings verbalim, but decided to deny the application. Englin filed another application in 1997. The planning board recommended denying the zone change, and the commissioners denied Englin's application again, finding the. change would not retain and improve ex.isting residential neighborhoods, wOuld not. protect against encroaching incompatible uses,.could increase noise and ~raffic in the area and adversely affect buildings in the area, and would be incompatible with the zoning plan, .Moreover, the property was not. easily accessible to a highway. · Englin' sued the county, arguing the commissioners' 1997 denial of the zone change application violated their due process rights, was arbitrary and capricious, and constituted a taking by inverse condemnation. The commis- sioners asked the court for judgment without trial, which the court ~anted. Englin appealed, and the c'iaurt affirmed the lower court's, decision on the takings claim, but remanded the matter on Englin's substantial due process claim because the commissioners had not issued .specific findings supporting. their denial of the zone change appLication. The Commissioners provided their findings, and another hearing was held, after which the court dismissed the claim. Englin appealed, arguing the con.&ictmg r¢.c°mmendati°ns of the planning board in 1989 and 199'7 showed their decision was arbitrary, arguing property could not be found acceptable for highway commercial use one day and nnac- ceptable the next, when none of the adjoining uses had been altered. DECISION: Affirmed. The denim of Englin's zoning change request was not arbitrary or capricious. The planning board was required to make written recommendations to the commissioners, but the recommendation was advisory. The commissioners had the discretion to reject the recommendation, especially where the 1989 recom- mendation had negative and positive elements. The planning board's Conflict- lng recommendations did not show it acted arbitrarily. Moreover, the commis- sion had the discretion to reject the recommendation. Englin had chosen.not to appeal the commission's 1989 decision. A map showing the property was not easily accessed by nearby highway traffic supported the commission's decision. There was fur~er evidence show- ing that ganting the zone change would increase the noise and traffic level in the area. Half of Englin's property adjoined property zoned for residential use. There was sufficient evidence to support the commission's findings the zone change would be incompatible wiih the surrounding land uses and was incom- patible with the comprehensive zoning plan. At the hearing, one planner not- ing the wide range of options between residential and highWay commercial use, remarked there may be other zoning districts Englin could ha...ve pUrsued. Citariomf E~zgii~ ~. ~oard of CourtO, Com. miaaione~'x Supreme Co~i?t of Monw..na, No. 0~-d54 (~00~.