Agenda - Planning Commission - 11/01/2007

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Zoning Bulletin to apply to construct a main dwelling. The board stated that any succes- sor in ownership to the property, however, would have to apply for and receive a building permit to construct a main dwelling within two years of taking ownership. Both Gjerlow and LeBrun appealed the board's decision to court, and their complaints were consolidated for trial. Gjerlow argued that the board had erred by stating that the variance required a main building to be built, and LeBrun argued that the board had abused its discretion by allowing Gjerlow to continue to live in the cottage without being required to apply for a building permit and construct a main dwelling. Both parties asked for judgment without a trial. . The court initially dismissed both claims, and both parties appealed. DECISION: Judgment in favor of LeBrun. The appeals court began its review by noting that, generally, a zoning board's interpretation of ordinances was entitled to "great" deference. Re- view of a decision by a zoning administrative board was limited to wheth- er the action taken by the agency was illegal, arbitrary and capricious, or an abuse of discretion. A board's decision would be overturned only if it was found to be "unreasonable or irrational." - . The court found that the code enforcement officer and the board ratio- nally interpreted the variance as having granted Gjerlow exactly what she had requested: permission to construct an accessory building prior to con- structing a main dwelling. In effect, a condition of the variance was that Gjerlow was required to build a main dwelling on th~ property eventually. The court noted that Gjerlow did not request-and was not granted-a variance permitting her to construct only an accessory building with an . open-ended option to construct a main dwelling. Although the variance did not specify a time for compliance with this condition, the court stated that it was a "well recognized principle of law that where no time for action [was] specified, the law [would] imply a reasonable time." In this respect, the court agreed with the board's de- termination that, under all of the circumstances, it waS unreasonable for the zoning officer to require Gjerlow to apply for a building permit to construct a main dwelling within 90 days. However, the court found that the board's decision to permit Gjerlow to have an open-ended exemption from .constructing a main dwelling was an irrational solution, especially in light of the condition that any successor in ownership would be re- quired to comply with the variaJ;1ce. It was a fundamental premise in zon- ing law that regulations ran with the land-independent of who owned the property. Regardless of who owned the property, enforcement of the variance required that an application for a building permit and construction of a main dwelling take place within a reasonable period of time. The board had abused its discretion by excusing Gjerlow from that obligation. The decision of the lower court was modified to annul the dismissal of LeB- run's claims. The case was returned to the board with an order to fix a 10 96 -) I I ......-./ ) " i ! \ I t i