The appeal was filed by Donald Dorr and Dorr Oil Co. It sought to overturn a decision Lee Krohn, the town's zoing administrator, made on May 7 that required a zoning permit be issued before any further "earth extraction" activity took place on the site of the gravel pit, adjacent to a residential subdivision known as Westview Estates.
The critical issue was the expansion of the size of the pit and the larger area from which gravel was being extracted from compared to what had been the case in the earlier years when the pit was being developed, according to the DRB.
"The owners of the Site shall apply for and obtain a zoning permit from the Town of Manchester with respect to all expansions of the surface area of extraction on the Site since the year 2000 along with any proposed future extraction activities. If no further earth extraction is proposed for the Site, then a zoning permit shall be required for remediation and closure of those portions of the site excavated since the year 2000," the opinion stated.
The issue over whether or not the gravel pit required a zoning permit sparked discussion at two DRB meetings in June and July. The gravel pit had been in active use prior to Manchester's adoption of zoning ordinances in 1970, but was grandfathered as a pre-exisitng use and no zoning permits were ever issued for gravel extraction, according to the decision.
In 1989, a permit was issued for a residential subdivision of 48 acres, which included portions of the gravel pit area. However this development was never completed, according to the written opinion, which was signed by members of the DRB on Aug. 21.
The area from which gravel is being extracted from the area now greatly exceeds where such activity was taking place thirteen years ago, the opinion states.
Manchester zoning ordinances cited in the opinion call for any gravel or other extractive operations to conform to the town's bylaws when there is an expansion of the area from which gravel or other extractions are occurring.
The appellants argued that there has been little change in the rate of extraction, but no business records were produced to verify this, according to the opinion. In any event, the key issue was over whether gravel was being extracted from a wider area that had previously been the case, and this was taking place, triggering the need for a permit, the opinion states.
During the earlier meetings between the DRB and the appellant parties, Michael Nawrath, an attorney representing the gravel pit owners, maintained during the DRB discussions earlier this summer that the previous permit issued for the subdivsion had effectively expired nearly 20 years ago, since the proposed work on the subdivsion was not completed. If that permit had lapsed, the original pre-exisitng use performed on the site - gravel extraction - was legal since it was back under the grandfathered protection of a pre-exisitng use. The case was complicated by the fact that an amendment to the original permit was issued in 1990, a year after the original permit for the subdivision was issued in 1989 which extended the life of the underlying permit until 1994.
According to an earlier news report, Nawrath interpreted that to mean the initial permit was not extended. Lee Krohn, the town's planning director and zoning administrator, maintained that meant the amendment expired, by the original permit had not.
Krohn declined to comment on the written decision on the grounds that he was a legal party to the case.
Attempts to reach Nawrath for further comment on the decision were unsuccessful as of press time on Wednesday.
The gravel pits owners have 30 days from the date of the decision to file an application for a zoning permit.