Pity the poor drafters of municipal zoning ordinances and comprehensive plans. Their work is intended to promote harmony by setting reasonable standards and balancing competing interests, and it usually does go a long way to reduce conflict. But when disputes arise, opposing sides too often are ready to throw the book at each other.
Southwest Harbor’s Land Use Ordinance is, in its own words, “intended to regulate the construction of buildings, roads, signs, etc., and the uses to which buildings are put, so as to ensure that they do not cause damage to their neighbors or to natural resources.”
Last week, the town’s Appeals Board found that a local business had expanded its operations in a way that requires review by the Planning Board.
The appellant, a neighbor who says a reduced buffer is exposing his property to offensive smells, is correct that the LUO instructs the Planning Board to determine level of impact of the expansion of an existing use, and what buffering will be necessary to shield neighboring properties from undue nuisance.
The board may consider “use, number of parking spaces, size of structure, hours of operation, number of employees and impact of vehicular traffic” in making that determination.
But level of impact (including considerations such as number of employees) and buffering only come into play when the change in activity on the property requires a permit for expansion or change of use.
In this case, the town’s position has been that the activities on the property do not constitute a change of use that would require a permit and Planning Board review. The town and the Department of Environmental Protection agreed that other, possibly upcoming, actions by the business would require additional permitting, but that nothing done to date was out of line. The Code Enforcement Officer’s findings are sound, but the appellant’s concern about enjoyment of his property is also valid. He took the appropriate step in filing the appeal.
It’s discouraging that many residents don’t seem to be clear about the functions of the different parts of town government. This was one of several problems this year where a concerned resident has gone to the town manager, Planning Board and the Board of Selectmen, not sure what the appropriate channels are for addressing their concerns. Perhaps some of the confusion is that the town manager and code enforcement officer are no longer the same person, as was the case for many years.
Given that atmosphere of confusion, it’s commendable that the appellant and town staff succeeded in compiling a thorough record of correspondence and other documents that allowed for a meaningful review of the situation by the Appeals Board.