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Zoning creep

April 7, 2011

A couple of news stories that have come up over the past few weeks have shone a light on a problem that could potentially threaten the quality of life any of us enjoy in our homes. We call this phenomenon “zoning creep:” the process by which, due to a failure of zoning boards to enforce regulations, poor judgment in applying regulations or a failure to appreciate the cumulative impact of successive alterations, the land use on some particular site becomes radically at variance with the character that the town intends for the zone in which it is located.

In one case, in the Town of Delaware, a series of piecemeal approvals of permits for a firewood operation on Swiss Hill Road gradually transformed the piece of land in question from what might have been seen as a “forestry operation”—permitted in the residential area of which it is a part—to a light industrial facility involving heavy, noisy, constant truck traffic and loud noises from 7 a.m. to 11 p.m., sometimes even on holidays. (See “Firewood business, hot neighbors” in the March 24 issue.)

Whatever the building inspector and zoning board of appeals may claim about the technical correctness of the grounds on which the individual permits for various parts of this operation were granted, the results were clearly out of line with what the town intended when it zoned this area residential. After all, the whole point of restricting certain types of development in a residential area is to make sure that people can have peace and quiet in the sanctuaries of their own home. The Swiss Hill firewood operation simply does not, at this point, answer that description. To that extent, we would hope that David Sager, who lives across the road from the facility and has filed a suit against the town’s zoning board of appeals on account of it, succeeds in his suit.

But even if the suit fails on technical grounds, we think the Town of Delaware—and indeed other towns—might benefit from reviewing both their ordinances and their procedures to see if there is anything that can be done to prevent a single, seemingly innocuous application from turning into a series of approvals that transforms a quiet rural residential area into an industrial zone.

If Sager’s suit fails, then even if the Town of Delaware subsequently tightens up its ordinances and procedures, the firewood operation would presumably be grandfathered in as a non-conforming use. Which brings us another kind of zoning creep: the expansion of non-conforming uses.