Petersburg’s borough assembly Monday ruled against a local property owner who has been storing fishing gear on residential property south of downtown. It was the latest in an ongoing struggle over allowable uses of the private property and the borough’s efforts to enforce local zoning law.
Property owners Aaron and Katrina Miller had a conditional use permit granted by the borough this year that allowed storage of fishing gear outdoors at their the property at 107 Arness Heights Drive, about two miles south of downtown Petersburg. The planning commission this summer revoked that permit after the Millers did not build a fence required by the permit to block the sight of gear stored there.
Photo by the Petersburg borough
Aaron Miller told the borough assembly he couldn’t afford to build this year because of a poor fishing season. “We couldn’t afford spending 20-thousand on a fence,” Miller said. “We priced it out, 25 probably.”
The land is zoned single family residential and the conditional use permit allowed a use other than a home on the property. Without that permit, the Millers were ordered by the borough to remove the fishing gear stored on that property and the couple appealed that order. Miller told the assembly the couple did what they could afford this year to prepare the site for construction.
“Yeah we’re just small business owners and I really don’t wanna fight the city,” he said. “Looked what I’m stacked up against. I can’t compete. We can’t compete. I guess what we’re asking for is a little common sense from the board of review here.”
Miller asked for a stay, meaning no enforcement of the order to remove the fishing gear, until he could try again to rezone the property. The borough assembly voted against that option last year. Miller also has argued that gear storage is allowed on other residential land in the borough and thought he was be targeted unfairly.
He also took issue with what he called vague language in the borough’s code. “Nowhere in the codes could we find the pertinent law stating that storage and accessory uses are not allowed without a principal use, i.e. dwelling completed first. The codes are vague about this and prone to misinterpretations and subjective,” Miller testified.
Miller had applied for a building permit this summer and argued that that signaled his intent to build on the property when he was able to afford it. He also produced letters of support from nearby property owners and witnesses testifying in support of allowing him to continue storing gear there.
One nearby property owner, John Murgas, said he couldn’t find the nuisance. “I did pace off the area that was used by the commercial fishing gear. I apologize I didn’t ask the property owner’s permission. And it is less than 10 percent of the square footage of the lot, relatively small amount. 90 percent is not being used for storage of commercial fishing gear.”
Petersburg’s assembly adopted a new nuisance ordinance earlier this year and this hearing was the first under that new local law.
The assembly heard from Liz Cabrera, the borough’s community development director, who said the process was a new one and did not think the borough was doing selective enforcement.
“We decided to prioritize our efforts on long standing violations and also address new complaints as they come in,” Cabrera said. “We have addressed 8 violations since May. Four have been resolved. Three are being followed up on and one is the one that is currently under appeal. I think the summary of cases demonstrates quite clearly we’re not selecting certain types of cases over others.”
Cabrera cited other specific examples of gear and salvage material storage on residential land that have been resolved or are still being pursued by the borough. Cabrera argued that Millers did violate the borough’s nuisance ordinance. She noted that the borough’s zoning code allows other residential land owners who have built a home to store fishing gear at their home, as an allowable secondary use of that property.
“So the accessory use must be incidental it’s not the primary thing,” Cabrera said. “It must be subordinate it’s not the primary thing. You have to have the primary use established and then you gain as the property owner the benefits that come with the accessory use. It doesn’t say anywhere in here that accessory use includes storage of fishing gear but that is how we interpret it and I think it’s a liberal interpretation that works for our community.”
The property is in the Olsen subdivision, a mix of residentially and commercially zoned land with no water and sewer service. It’s also right next to Hungerford Hill, a neighborhood with some industrial land and homes thrown into the mix.
Assembly member Kurt Wohlhueter wondered where common sense entered into the decision. “It was bought as a single family dwelling,” Wohlhueter said. “It was bought not as a commercially zoned piece of property. It was, the CUPs were not met. I mean I have a lot of reasons why I should probably vote for this. But on the other hand I’m gonna vote no against this because I don’t like the idea that it’s not so specific that there would be holes in it.”
Several assembly members were having trouble deciding on the issue. Bob Lynn saw two issues, one was the Miller’s attempts to rezone that parcel. Another was the violation of the nuisance ordinance.
“I agree with common sense. And if they can’t do it and it was sent back to planning and zoning, do you give them another year, two years, three years? Lynn wondered what was a reasonable time frame.
Mayor Mark Jensen said it wasn’t a fun position to be in, making the decision on the violation. “And you know I do understand financial hardships but I also understand rules that are made or agreements that are made and at some point you have to enforce what’s on the books how it got there or not and if you don’t like it you go back to the assembly or planning and zoning and change it,” Jensen said.
The vote was 5-1 to affirm the order of nuisance abatement with only Wohlhueter voting against it. The borough can impose fines if the gear is not removed. The Millers can still appeal the decision in district court.
