Agenda - Planning Commission - 06/07/2007

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January 1, 20071 Volume 1 I No.1 public needed; and 3) lancUills were regulated and controlled by a state agency-a department of the Department of Natural Resources. However, the Public Service Commission was recognized as the proper authority to regulate public utilities. EarthResources' due process claims were also dismissed. At tria~ the company had argued that the commission limited the amount of time it had to present its case and that the commission did not consider all of its evidence. The trial court had found Ibis to be a harmless error; the appeals court agreed. The record showed no procedural violations, and the landfill could not meet the public utilities de:finition. The decision of the lower court was affirmed. see also: Lasseter v. Georgia Public Service eom'n, 319 S.E.2d 824 (Ga. 1984). Variance-Property owner asks for relief from road frontage requirement Argues right-of-way sufficient access road to property Citation: Indelicato v. Town Of Lloyd, - N. Y.S.2d -, 2006 WL 3372865 (3rd Dept. 2006) NEW YORK (1l/22/06)-Indelicato owned a 17-acre' lot of land in the town of Lloyd. The land was accessible from a public highway only by a deeded right- of-way mat was 15 feet wide. He applied for a permit to build a house on his property, but it was denied. Town law prohibited residential buildings from be- ing constructed on property without a public street or highway that accessed the proposed location. Indelcato applied for a variance, arguing that the right-of-way aHorded access to the property. The zoning board of appeals denied the variance, stating that it had no authority to accept the right-of-way as a substitute for the public street mandated in the code. Indelcato appealed the board's decision to coun. The court ultimately found in his favor, reversing the board's decision. The court returned the matter to the board for :Eur-cher consideration, and both parties appealed. Indelcato asked that he be granted the variance, and the town argued that its decision to deny the vac-i- ance should have been enforced. Decision: Judgment in favor of the town. After revievving the record, the appeals coun found that the board did not have the authority to grant an exception to the town's public access road requirement. The law specified that residential use property had to "directly abut ... [ a] street or highway and [have] sufficient frontage" to allow emergency vehicles. Although the coun noted that 15 feet of road frontage was sufficient, it found that no pan of Indelcato's lot directly abutted and public Street or highway. Further, the board's reliance on the definition of access as defined in the stat- ute-and reinforced by the decision in Wieder-spiel v. Leifeld-had a rational basis of law and was supported by substantial evidence in the record. In WiedersPiel, thecoun stated that access could be granted through a right-of-way only if the land was first designated as an "open development area." This designation re- quired a town resolution, which was neither sought nor granted in Ibis case. Indelcaro argued that other property o.lIners had been granted building permits despite access being through rights-of-way. He claimed that the board's decision to deny his application and subsequent variance ac"11ounted to selective enforcement. However, the allegation of selective enforcement required proof that the deci- sion in question was motivated by "an intention to discriminate on the basis of 3 147