§ 19-466. Prior existing permits and uses

In recognition that there was a moratorium on new or increased flows pursuant to a consent decree entered into between the state department of environmental management, hereinafter referred to as "DEM," and the town, after DEM had issued a complaint against the town for excess sewage flows, some limited provision must be made for persons who have been denied the use of prior existing building permits or who have had onerous conditions imposed in order to obtain a variance from the consent decree. For uses which existed prior to June 5, 1989, or for which a valid building permit had been issued, the following shall apply:

(1) All existing prior uses which are lawful may continue as long as no increased flow results. Any use specifically approved under the DEM consent is lawful as long as any conditions imposed under that consent agreement are continued.

(2) The priorities stated in section 19-463 shall apply to all permits for increased or new flows, but are modified in the following particulars:

a. Where a variance has been granted under the former DEM consent agreement, on conditions which the building official finds do not affect actual flows, and the building official finds that such conditions are no longer in the public interest or should be modified because of severe hardship, it may change or eliminate such conditions. Any appeal under this subsection shall be on the same terms as appeals from the building official to the zoning board of review in appendix E to this Revision.

b. Where a valid building permit existed prior to the adoption of the DEM consent agreement, such building may proceed upon a finding by the building official that there is clear and convincing evidence that the proposed use would be the same lawful use under a prior granted valid building permit. A prior granted valid building permit shall include instances where a court of competent jurisdiction found or could have found that a building permit should issue, but for reasons beyond the permit applicant's control, such building permit did not issue prior to the imposition of the DEM sewer moratorium. The building official may also grant a modification to the prior lawful building permit use, if it is shown, by clear and convincing evidence, that such modification shall not result in any increased sewer flows. In allowing a modification the building official may impose such conditions as he may find reasonable and may refer to the standards used in granting variances in the DEM consent decree in determining limitations on flow and other conditions which may be imposed, and may also refer to standards for granting variances in appendix E to this Revision. Among uses which qualify under this subsection, the priority ranking shall be made as provided in section 19-463. Where an alleged use provided for in an alleged prior existing valid building permit does not qualify under the provisions of this subsection, then any new or increased flows shall not be granted unless such flow would otherwise qualify as a priority in section 19-463. Any appeal under this subsection shall be on the same terms as other appeals from the building official in appendix E to this Revision.

c. Any applicant(s) who qualify for priority in accordance with this section who do not apply for allocation by October 10, 1990, will forfeit such priority status.

d. Allocations granted pursuant to subsection (2)b of this section shall expire 12 months from the date of approval unless a building permit has been issued and construction has commenced and is being diligently pursued to completion.

(3) For future years, applications for an allocation shall be made by August 1 prior to the annual sewer allocation meeting in order to be considered for the allocation for that year.

(Rev. Ords. 1989, § 19-157; Ord. of 10-10-1990; Ord. of 3-21-2001)