Agenda - Planning Commission - 05/03/2007

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Zoning Bulletin market value was established by determining the "highest and best use" to which the property could reasonably be put. Here, because no development had occurred on the land, its potential val- ue as a residential subdivision was what had to be considered. Bec~use it had preliminary approval only for the subdivision, Clark had to show by a pre- ponderance of the evidence that it was "reasonably probable" that it would have been given final approval to develop the land. In cases where potential use was the basis for determining the market value for property, develop- ment handicaps had to be considered. At the heart of the issue was the question of whether there were any land use restrictions that would prevent ali17 of the lots from development. Clark argued that there were no such restrictions, while the city cited the act. In the record, Clark's appraiser stated that the act was not in place at the time of the appraisal, but noted that two of the lots were located within a wetland area and would require "conservation commission orders of condition;" However, Clark's argument that the act was not in place failed. The act was enacted in August 1996 as an emergency order, meaning that it took ef- fect immediately. The lack of regulations introduced in association with the act did not mean that it was not enforceable, as Clark had argued. The court noted that "[t]here [was]'nothing in the [act] to indicate that its applicability was suspended until implementing regulations [were] issued." The act stated clearly that no development was permitted on land in a riv- erfront area unless the applicant had proved that the work would have no sig- nificant impact on the area. The record here showed that there were questions as to whether Clark's proposed development would impact the area; both . the appraiser for the city and Clark's own appraiser expressed doubts as to whether two of the lost could support construction outside of the buffer zone protecting the river. Thus,. it was clear that Clark had not met its burden. The appeals court found that the lower court had reasonably determined that only 15 of Clark's lots were buildable and that the compensation should be based upon those lots only. The decision of the lower court was affirmed. See also: Correia v. New Bedford Redevelopment Authority, 375 Mass. 360, 377 N.E.2d 909 (1978). See also: McLaughlin v. Board of Selectmen of Amherst, 38 Mass. App. Ct. 162, 646 N.E.2d 418 (1995), affd, 422 Mass. 359, 664 N.E.2d 786 (1996). Special Exception - City allows addition of 55- foot 'tower' in residential area Neighbor argues structure violates residential height restriction Citation: Ross v. Harris, 2006 WL 3927418 (Ind. Ct. App. 2006) INDIANA (01116/07) - In June 2004, Ross applied to the city of :Michigan City for a building permit to construct a second-floor addition to his home on Sheridan Beach. The structure was essentially an additional living space, but Ross characterized it as a "tower" for the purpose of the application. The per- mit was issued and Ross began constructing the 55-foot high tower. Important- ly, there was a 30-foot height restriction on buildings in the residential area. In early 2005, several neighbors became aware of the construction and its potential impact on their lake views and property values. Allegedly, Ross told one of the neighbors that he had obtained the work permit through a "loophole." Ross accelerated the construction in response to the complaints. 7 37