Warren resident George Abad has filed an appeal of the state’s Environmental Court on the Warren Development Review Board’s decision regarding the notice of violation for Shane and Kelly Elwell of Elwell Excavating. The town’s zoning administrator, Ruth Robbins, issued a notice to the Elwells of two violations of the Warren Land Use and Development Regulations on October 11, 2022.
The notice of violations stated that the Elwells were operating their excavating business, which did not meet the standards of a home-based business, in a residential area where commercial use is prohibited, in addition to constructing a driveway on a steep slope without the necessary permit. The Elwells appealed the notice of violations to the DRB.
A DRB hearing was held on November 7, 2022, to hear the appeal. A second hearing was held December 19, 2022.
The DRB upheld the decision regarding the Elwells’ violation of the regulations to construct a driveway involving more than 1,000 square feet in area on a slope that exceeded 15% gradient without a permit. The appeal regarding the driveway was dismissed.
The notice of violation asserted that, regarding the violation of commercial use in a residential area, the Elwells conduct the following commercial activities on their property: storage and maintenance of large equipment and vehicles for excavating purposes; storage and maintenance of large equipment and vehicles for logging and firewood processing, storing logs, splitting logs; and storing and handling of split firewood. The appellants (the Elwells) have been conducting their business on their property since they purchased it in 2015.
The DRB found that the Elwells had relied on advice from the zoning administrator at the time, who told them they did not need permits to conduct their business out of their home. The DRB decision found that: “It would take a great deal of time and expense for the appellants to abandon the commercial uses on the appellants’ property and to relocate those uses to another place.” The DRB’s conclusion states, “On balance, an inappropriate injustice would be imposed upon the appellants unless the town is estopped from enforcing the regulations to prevent the appellants from continuing their commercial uses. This equitable bar to the town’s enforcement should apply only to the extent that the appellants do not change today’s balance of equities by altering or enlarging the commercial operations on the property beyond the critical operations features described.”
The decision reads, “The Development Review Board estops the town from enforcing the notice of violation issued because of appellants’ commercial use of their property, but only to the extent that this barrier applies to the types of uses and scale of uses carried on by appellants under today’s commercial use of the property, and only for so long as the commercial use aligns with the “Critical Operational Features.” The town is expressly not barred from issuing or enforcing any future notice of violation if the appellants or their successors in ownership shall expand, alter or enlarge the commercial operations beyond the “Critical Operational Features.”
