Agenda - Planning Commission - 09/06/2007

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Zoning Bulletin peals court referred the matter to the state supreme court. A decision by that court would provide case law upon which future cases of this nature could be decided. See also: Town of Vemon 1/. Waukesha County, 102 Wis. 2d 686, 307 N. W2d 227 (1981). Subdivision-Town denies minor subdivision under pressure from community opposition Application met all subdivision require:Q1ents Citation: DiFrancesco 1/. Mayor and Town Council of Elsmere, 2007 WL 1874761 (Del. Super. Ct. 2007) DELAWARE (06/28/07)-Difrancesco owned a 16,800 square foO[ lot in the town of Elsmere. The property was big enough for twO residences to be builr on it, which was allowable in the zone in which it was locat- ed. Difrancesco applied to the to planning commission for permission to subdivide the lot. The subdivision was considered a minor subdivision. Under his plan, one of the lots would be 6,000 square feet and the other would be 10,800 square feet, and both would ultimately contain a single-family home. The proposal complied with all relevant zoning ordi- nances, including setback and minimum lot size requirements. After a hearing, the planning commission recommended that the appli- cation be denied. The commission found that the proposed development would not fit "With the character of the neighborhood or the town's master plan. The application then went before the city council, and ~-lOther hear- ing was held. Several communiry members testified against the proposal at' that hearing. Subsequently, ilie city council voted to deny the application. Difrancesco appealed the decision to court, requesting that ilie court review the town's decision. Decision: Judgment in favor of Difrancesco; case returned to tOWll COUD.- cil for further proceedings. The town argued that, when reviewing subdivision applications, it had to consider "the public health, safety and welfare, the comfort and convenience of the public in general and the residents of the immediate neighborhood in particular." Further, it contended that the planning com- mission could reject a site plan and on appeal, its decision could only be reversed if it was found to have been arbitrary and capricious. In other words, the planning commission had the power to completely reject a site plan for a project that complied with the zoning ordinance if it was "fair- ly debatable" that the project would adversely impact the public health, safety, welfare, comfort and convenience of the neighborhood. However, the court disagreed, finding that the commission could not reject a site plan for a permitted use on the grounds that the project would adversely effecr the general neighborhood. The court found that "[w ]hen people purchase land zoned for a specific use, they are entitled to rely on ilie fact that they can implement that use provided the project complies 4 116