Date:      12/5/02

To:          Town Planning Commission Members

From:     Community Development Department Staff

RE:          Agenda Item 5: Variance – NE Asphalt


As was specified by the memo for the CUP, the proposed expansion of the NE Asphalt quarry will not comply with the minimum setback requirement of 50 ft. to an exterior boundary. The applicant is proposing that the quarry operation be 5 ft. away from the exterior boundary. The adjacent property is owned by WE Energies (Lot 1 on the attached CSM). The 50 ft. setback area is highlighted in yellow on the PowerPoint presentation. Property owners within 300 ft. have been notified of the variance request.

The Mineral Extraction section of the zoning ordinance also specifies setback requirements for quarry operations if located within a specified distance to a public right-of-way (e.g. 200 ft.) or if there is a nearby residence (e.g. the quarry operation must be 200 ft. from any exterior boundary of the site if there is a residence within 500 ft of the subject property.) The proposed quarry expansion already meets these minimum setback requirements and is therefore not included in the variance application. The following map shows the adjacent land uses and approximate distance to the quarry site:

Variance Justifications:

Variances can be granted only if they are found to meet the following facts and conditions:


1. Exceptional Circumstances -- There must be exceptional, extraordinary or unusual circumstances or conditions applying to the lot or parcel, structure, use, or intended use that do not apply generally to other properties or uses in the same district and the granting of the variance would not be of so general or recurrent nature as to suggest that the Zoning Ordinance should be changed.


2. Preservation of Property Rights -- That such variance is necessary for the preservation and enjoyment of substantial property rights possessed by other properties in the same district and same vicinity. 


3. Absence of Detriment -- That the variance will not create substantial detriment to adjacent property and will not materially impair or be contrary to the purpose and spirit of this Ordinance or the public interest.


Staff Recommendation

Staff recommends approval of the variance, based on the following criteria:

1.        Exceptional Circumstances – If the 50 ft. setback is required, then there would be no practical use of this portion of the property. This area was acquired by NE Asphalt with the intention of expanding their quarry operation.  The Mineral Extraction section of the zoning ordinance mandates specific setbacks if the operation is within a specified distance of a public right-of-way or residence. The proposed quarry expansion area will far exceed these setback requirements. Furthermore, since there are high tension power lines located adjacently to the west, the 50 ft setback is not as critical since there will be no development in this area. The proposed 5 ft. setback is then justified based on this exceptional circumstance.

2.       Preservation of Property Rights – The property rights of the adjacent property, owned by WE Energies, will be preserved, especially since the area is undevelopable based on the presence of many high tension power lines. The WE Energies substation is located to the south.

3.       Absence of Detriment – The applicant is proposing to construct a security fence along the perimeter of the expansion area in order to reduce any negative impact on the adjacent property. Furthermore, the applicant must comply with the standard guidelines of the Mineral Extraction section of the zoning ordinance, such as hours of operation; noise, vibration, dust, and air quality controls.