Agenda - Planning Commission - 09/06/2007

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August 1, 2007 I Volume 1 I No. 15 Because the board lacked authoriry ro render an advisory opinion, its decision had to be vacated. There was a dissenting opinion in this case. The dissenting judge wrote: "Given that the Township is seeking to enforce the heighT provision of the junkyard ordinance, I believe the Zoning Officer's refusal to reclassify the business use on this property is a 'determination' appealable to the Zon- ing Hearing Board." That judge stated that the court should have reached a decision on the merits of the case. See also: Hopkins v. North Hopewell Tp. Zoning HeaTing Ed., 154 Pa. Commw. 376, 623 A.2d 938 (1993). . Nonconforming Use-Homeowner argues continuation of nonconforming status makes structure a 'permitted' use Claims he does not need permit to build access road Citation: Gensheimer v. Town of Phippsburg, 2007 ME 85, 2007 WL 1977147 (Me. 2007) MAINE (07/l0107)-Gensheimer owned properry in a subdivision locat- ed in the Resource Protection District (RPD) in the town of Phippsbilrg. Gensheimer's house was built in 1895, and conti11ued to exist as a le- gally existing nonconformii1g use. In 2002, Gensheimer applied to the planning board seeking a permit to develop a roadbed as an alternate means to access his property. The plan- ning board denied the request, citing a section of the zoning ordinance that provided, in part, that: "New roads and driveways [were] prohib- ited in a Resource Protection District except to provide access to permit- ted uses within the district, or as approved by the Planning Board upon a finding that no reasonable alternative route or location is available out- side the district." Gensheimer appealed the board's decision to the ZOniLl.g board of ap- peals, which affirmed the denial. Gensheimer neil.~ appealed to court, and the trial court affirmed. Gensheimer appealed again, and the appeals court vacated the decision of the lower court and returned the case to the board. The appeals court noted in vacating the decision that "a permit [was] re- quired to construct a roadway only when there is no reasonable alterna- tive access.to a non-permitted use, and that no permit [was] required to construct such a roadway when the applicant's use [was] a permitted use, regardless of whether there is a reasonable alternative." After the case was returned to the board, it determined that Gen- sheimer's home was not a permitted use in the RPD, and thus required a permit to construct a roadway. Gensheimer appealed, and the board of appeals affirmed the decision. Gensheimer appealed once more to court. The court vacated the decisions of the planning board and board of ap- peals, finding that Gensheimer's home, though nonconforming, was a per- mitted use in the RPD. 9 121