Couple sues county over zoning law |

Couple sues county over zoning law

by Christy Chalmers

A Stateline couple wants a Douglas District judge to enforce a zoning law they say county officials have ignored.

Daniel and Jackie Fitch listed Douglas County, the Community Development Department, the county’s chief enforcement officer, the chief building official, the planning director and the county engineer as defendants in a petition filed Jan. 18 in District Court.

The complaint says the county officials have failed to enforce a residential zoning designation on Logging Road in Stateline, allowing industrial and commercial operations to continue for almost 30 years. The current occupant of the property is not named as a defendant, though the petition lists numerous complaints about the property.

The site was originally home to an asphalt manufacturing facility, a use that was permitted when the residential zoning designation was applied in 1968.

But, the petition says, the original asphalt operation ceased in 1970, and since then, a succession of industrial-type uses have ensued on the property and five buildings have been built without proper permits.

The Fitches said they considered the operation a nuisance when they moved into their home in 1994, but the activities have “significantly increased” and Logging Road residents are now subjected to smoke, contaminated runoff, excessive traffic and noise for up to 14 hours a day.

Court documents say complaints have been lodged with county officials, who concluded the activities were a legal though non-conforming use of the property. Tara Plimpton, a lawyer for the Fitches, says the current operation amounts to an illegal expansion and change of use.

“The facts of this case demonstrate an out-of-control increase in illegal activity on the property that clearly violates the current zoning ordinance to the detriment of neighboring properties,” Plimpton wrote in an August letter to Deputy District Attorney Robert Morris. “Certainly, if another individual in a residential neighborhood began significantly excavating his or her land for profit, storing enormous amounts of debris and dirt, dumping snow, increasing and diversifying the storage of heavy equipment, causing runoff of pollutants, and polluting the air with dense smoke and constant noise, Douglas County would act immediately to foreclose these illegal activities.”

“Nothing has convinced us that there is a clear-cut violation that must be prosecuted. If anything, it shows there is a diversity of legal opinions about change of use and expansion of use,” Morris replied in an October letter.

He also challenged the Fitches’ assertion that county officials have breached their duties.

“My reading of the law does not give Mr. Fitch a clear legal right to force Douglas County to take action, instead the decision on whether to enforce zoning laws under these facts is discretionary with the county,” he wrote.

The Fitches want an order that requires county officials to enforce the current zoning law, as well as an order declaring that the original, non-conforming use of asphalt manufacturing and supply has been abandoned and that no new or expanded uses have been allowed. They also seek more than $10,000 in special and other damages.