Agenda - Planning Commission - 11/01/2007

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, i j j (() I , I ) j i ~ i I I j j I I j I I I I j 1 I I I j I J I (i;'~) I j I j I I (1..'--- ).. ,\ .'-,...., October 1, 20071 Volume 11 No. 19 occupied or manifestly arranged for the use on the date the non-con- forming status for the ... building or structure was established." Fur- ther," [n] 0 non-conforming building or structure [should] be altered; en- larged, or extended in any way that increases the area or space of that .portion of a building or str~cture which [was] non-conforming." This included, but was not limited to, second-story additions or similar addi- tions that would add to the height or build of that portion of a noncon- forming building. . Before construction began, Haubrich had applied for and received a change of use permit from the town zoning officer for the specific pur- pose of "internal renovations." However, the building on Haubrich's property was completely razed \J\Tithin the next several months, and con- struction began on an entirely new building. In response, Nonkin filed a request in court for an injuncti~n to stop cOnstruction. Nonkin alleged in her.request thatth~ zoning officer and the plan- ning and zoning commission failed to investigate and enforce the zoning regulations. In addition, she argued that she did not .have to exhaust her administrative appeals to the planning and zoning commissions because it would be futile. Nonkin claimed that she had "no adequate remedy at law" and would "suffer irreparable harm if an injunction [was] not granted. Haubrich and the zoning commission (collectively, the defen- dants) asked the court to dismiss the petition. . DECISION: Request to dismiss denied. The defendants argued that Nonkin's request should fail because she did not exhaust her administrative remedies, and, thus, the court lacked subject matter jurisdiction. Generally, a court would not exercise juris- diction over an action challenging the. decisions of a zoning authority until all administrative remedies have been exhausted. However, the court noted that there were two very narrow exceptions to that general rule. These two exceptions were: when a previously Un- challenged condition was so far outside what would have been regarded as valid exercise of zoning power that there could not have been any justified reliance upon it; or where the continued maintenance of a pre- viously unchallenged condition would violate strong public policy. The court found that, here, the secoIid exception applied. . _ In this case; a zoning official charged with enforcing regulations is- sued a building permit that on its face called for only "interior renova- tions" but allowed a bUilding to be razed and an entirely new building to be constructed on a nonconforming lot. The court found this to be a clear violation of the town's zoning regulations, noting that the public policy and public trust involved was that residents of a town expected public officials to enforce .the town's ordinances and regulations. 3 77