Agenda - Planning Commission - 08/29/2002

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July 25, 2002 --.Page 3 of fact as to whether the ordinances were applied differently to at least one similarly situated establishment. Citation: Ryan v. Lower Merion Township, U.S. District Court for the Eastern District of Pennsylvania, No. 01-1798 (2002). see also: John E. Long Inc. v. The Borough of Ringwood, 61 F. Supp, 2d 273 (1998). see. also: Schiaz~a v. Zoning Hearing Board of Fairview Township, 168 ESupp. 2d 361 (2001). Special Exception -- Neighbor disputes special permit to operate gra~e' quarry on property zoned for agricuIturaI' use . Board found neighbor'had burden to show why permit should not hare been granted WISCONSIN (6/4/02) --The Chrisfiansens applied for a spec/a/exception permit from Marathon County in 1998, seeking permission to construct a gran- ite quarry on land zoned for~agncultural use. The Marathon County Board of Adjustment held a hearing in June 1998, after which the board denied their application. The Christiansens Fried another application in March 1999, adding more provi- sions to their second application in connection with the operation conditions of the quarry. The board denied the second application, and the Christiansens appealed. The-lower court reversed and remanded the board's' decision. After another hearing, the board voted to grant the permit with several conditions. IVIcCallum, who owned neighboring property, asked the court to review the permit. The court vacated the board's decision, and the Chrisfi~se~ and the board appealed. The Chnstiansens argued the court erred when it found the board had not addressed the-proper faetofs in order to grant the perm/t, improperly placed the' burden, on those opposing .the permit, and en:oneotmly refused to allow a board member to abstain from voting. DE CISION: Affirmed. The reversal of the grant of special permit was affn'med. A review of the record showed the board did not consider several .impor- tant factors when it granted the special permit, including the productivity of the property, the location of the granite quarry so as to minimiTe the amount of agricultural land converted, or the need for public services. Though the board mentioned these factors in its decision, it was in response to concerns raised by McCaLlum, and the board dismissed several other factors as not within its authority. The board's, failure to consider these factors despite the zoning code's requirement o~ then- consideration showed the board's fail- ure to proceed on the correct theories of law. The board incorrectly placed the burden of proof on McCallum, when il should have been placed the burden on the Christiansens, who sought the per- mit. One board member and a land use specialist testified to that erroneous understanding. 119'