There is very little in the Hayes Township Zoning Ordinance that addresses violations and penalties and consequences of violating the Ordinance and stays imposed by the Ordinance, and what there is consists of a lot of legalese and doublespeak. But I will try to muddle through this.
Page 75 - Section 1603 Site Plan Review, Paragraph 5 Revocation: "If the Zoning Administrator shall find that the conditions and stipulations of an approved site plan are not being adhered to, the Planning Commission shall give notice to the applicant of its intent to revoke the prior approval given to the site plan. Intent to revoke shall be made known to the applicant by a registered letter sent to the applicant and signed by the Chairman of the Planning Commission. Said letter shall be received by the applicant fourteen (14) days prior to the stated date of revocation and shall contain the reasons for revoking the site plan approval.
If the applicant notifies the Planning Commission within fourteen (14) days of the receipt of the letter of his/her intent to rectify the violation, the Planning Commission , through official act, may defer the revocation."
One of the restrictions of the Special Use granted by the Planning Commission was: "There will be no substitutions or alterations to any of the conditions set before this board (the Hayes Township Planning Commission) without prior approval of the Township Zoning Administrator." - Page 4 of the minutes of the 17 May 2010 Planning Commission Special Meeting.
The BMX area set aside over the summer was a violation of restrictions of the Special Use (It was an alteration to the site plan approved by the Planning Commission at the 17 May 2010 meeting) and also a violation of the stay that was on the property because of the appeal to the Zoning Board of Appeals.
At the time, Zoning Administrator Jim VanWormer apparently did not find that the conditions and stipulations of the approved site plan were not being adhered to, for whatever reason. (Maybe he was worried about losing his job if he made a finding that was not in keeping with what the Planning Commission and the Township Board of Trustees wanted - which makes me wonder if our new Zoning Administrator will be able to stand up to the people who have the power to fire her in order to do what is right.) But he had sufficient grounds.
He should have notified Lyle Criscuolo, Chairman of the Planning Commission who should have sent a registered letter to Doug Longenecker of his intent to revoke the prior approval of the Special Use on the Gamble-Longenecker property on Mostetler Road. Then Doug should have had fourteen (14) days to stop work on the BMX area.
As far as anyone knows, Jim VanWormer never made the finding, and Lyle never wrote such a letter to Doug Longenecker. It is well known among the neighbors that Lyle and the rest of the "Powers that Be" at the Township are not interested in enforcing the Zoning Ordinance when it conflicts with what they want to do.
Here's how it should have worked:
1. As soon as Jim VanWormer found out that Doug had set aside an area for BMX (when they crowed about it in the Cleaver or when a neighbor complained), he checks the restrictions on the Special Use and determines that Doug deviated from the approved site plan. And also notes that Doug has violated the stay on the property - in fact, all work and development that went on after the appeal was filed was a violation of the stay.
2. Jim VanWormer tells Lyle about the deviation and about the violation of the stay.
3. Lyle writes a letter of intent to revoke the Special Use for an unapproved deviation from the approved site plan, and also a violation of the stay. He also sets a date of revocation for 14 days after Doug's receipt of the letter.
4. Lyle then sends the letter to Doug via registered mail (which provides proof and date of receipt by Doug.)
5. Doug has 14 days from receipt of Lyle's letter to answer Lyle and state his intent to rectify the situation.
a. If it were only the deviation from the approved site plan, Doug begins the process of gaining approval for the deviation of the site plan.
Then goes through that entire process.
b. Since there was also a stay on the property, Doug should have ceased and desisted from further development of everything on the property, not just the BMX area until the Zoning Board of Appeals takes a decision about the special use.
6. The Planning Commission meets and through official act, defers the revocation.
7. So Doug is in a waiting position until he gets the go ahead (if that's what the ZBA decides.)
8. If the ZBA decides to uphold the special use, then Doug does step 5a, and can continue to develop other areas of the property according to the restrictions of the special use.
9. Once step 5a is complete, if the deviation is approved, he continues work on the BMX area. If the deviation is disapproved, he stops work on the BMX area, but can continue development on the rest of the property according to the restrictions of the special use.
OR
8. If the ZBA does not uphold the special use, he ceases to develop the property.
The consequence in this case is and should have been Revocation of the Special Use.
It should also be made clear that this paragraph addresses site plans specifically and not Special Uses and not stays.
There is another place in the Hayes Township Zoning Ordinance where this is addressed, so I will write about that in another post.
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