County BoA confirms use for equipment storage

In a case that details the kinds of conflict that can happen as an area is developed, a 1-acre property near Millville has been the source of discord between the property owner and neighbors in recent years, as they battle over an ongoing use that the property’s owner says has existed there for nearly a half-century.

Residents of the Bay Colony community off Iron’s Lane near Holt’s Landing have posed increasing objections to the parcel’s use by Harvey Justice for the storage of heavy equipment, such as dump trucks and bulldozers. Those objections culminated in a Nov. 2 case before the Sussex County Board of Adjustments to determine whether the use had been in existence prior to the county’s 1982 zoning laws and whether it still complied with that use.

Justice’s attorney told the board the parcel at the northwest corner of Roads 348 and 346 had been used for the headquarters for Justice’s land, site, construction and demolition businesses for more than 30 years. The parcel was the site of the Justice family’s general store and chicken houses, which gave way to Justice’s business at the site no later than 1967.

The general store building became the headquarters for Justice’s construction business, while the chicken houses remained on the site but not in use. He also had a conditional use for a borrow pit located on an adjacent parcel, where some of the business’ equipment was also stored over the years.

But some Bay Colony residents had recently begun to complain to county officials that Justice had adapted his business to use more equipment, which was increasingly stored in a more visible location near the chicken houses – particularly after Justice sold off the borrow-pit parcel.

Justice’s attorney told the BoA that the state’s Chancery Court had decided that non-conforming use “has some flexibility,” that the use “can grow over time” and still remain permissible, as long as it existed prior to the zoning laws – or if it was given official permission to remain.

“He’s lived there for years and years. He’s made a living on that property,” said the attorney, noting the decrease in farmers in the area over time as they ceded parcels to development for residential use. “But he’s using it essentially for the same purpose.”

Justice’s case for the existing use came with a bevy of familiar names from the area. State Rep. and local business and property owner Gerald Hocker wrote a letter that said he could verify the use of the property for a business for more than 50 years.

Russell Banks, whose family has owned large parcels of land in the area – many of which have since been developed – said he’s lived in the area 57 years and knows Justice’s business has operated at the site for more than 40 years.

“It’s unfair for people in the area to find reason to complain,” he wrote.

Ronald Dickerson worked for Justice in the 1970s and 1980s and said he could verify the use from that time period. Rosemary Steele Brown said he husband had worked for Justice at the location in 1974. Roger Marvel said there had been an active business at the site since 1966 or before, with equipment stored there.

Ralph Marvel, who dated business on the site since the early 1960s, emphasized that it pre-existed the county’s zoning laws, which were adopted in 1982. He also said the use allowed “needed services” for the area, through Justice’s demolition and construction businesses.
Justice admitted that the number of pieces of heavy equipment stored on the site has grown over the years.

“I started out with one dump truck, then a backhoe and dozer,” he said. “If you’re doing well and the people want you, you’ve got to keep expanding,” he explained.

“I don’t quite understand it,” he added. “It seems like I’m the only one being singled out. There are other people out there who are in business. I was there and lived on that corner when it was a dirt road.”

Justice said he felt the lack of objections to development in the area in past decades had led him to the challenge before the BoA.
“When Bay Colony was developed – if all of us and all our parents had gone down to Georgetown and raised Cain when Jack Hickman was doing that, we wouldn’t have to be here now,” he said. “I don’t know where I’m in the wrong. We thought the property was commercial.”

Residents divided over use

Members of the public present to give input on the case on Nov. 2 were about evenly divided on the issue, with 15 saying they were in favor of the continued use and 14 expressing opposition.

James Freeman, a Bay Colony resident and president of the community’s property owners’ association, took on a note of sarcasm in responding to Justice’s statements about being singled out.

“I guess I’m one of those people from a big urban area who’s come down here to harass Mr. Justice,” he said, adding that harassment was not the opponents’ intent.

“The problem with his business is that he has changed it,” Freeman continued. “He’s moved equipment from the borrow pit site to what has always been, since I’ve been here, a residence, chicken houses and maybe a tractor.”

Freeman said the storage of the equipment on the parcel was an eyesore.

“To get to our community, you have to go by that particular corner. It’s a very visible point,” he emphasized. “Our belief is that this kind of use is detrimental to this area, which has become largely residential. The area has changed from agricultural and chicken-raising to residential. And it impacts people’s desire to move into the area,” he said of the equipment.

Freeman argued that Justice’s use of the property in the last decade had not been to store equipment or even to operate the general store as a commercial venture.

“It seems to me the test here is what non-conforming use was being made in 1982, when the zoning laws were made and the area went from agricultural to residential,” said Freeman, faulting the testimony that related back to the 1960s and 1970s. He said there was confusion as to whether those testifying to the use of the property for equipment storage were talking about the borrow pit site or the property on the corner, “which as far as I can see was always used as a residence and a store.”

Freeman argued that even if Justice had used the site for commercial purposes at the time the zoning laws were enacted, keeping the non-conforming use required continuous use and a similar use to what was taking place there today.

“He has not shown that in 1982 he had a non-conforming use that has continued to the present and that is similar to the use he’s using it for now,” Freeman said.

“In my own experience, in the last year we have not seen a yard full of trucks or any commercial use,” he said. “The borrow pit was different. It was a larger piece of property, and they were not parked along the road. What it looks like now is not quite the benign picture you’ve heard from the attorney. He made a voluntary decision to sell the borrow pit, and all of the sudden he moves all this stuff over here to this property.”

Freeman also asked for petitions of opposition to be entered into the record of the case, saying that roughly 300 residents of residential communities in the area had signed the petitions in opposition to the use.

He further presented photographs of the site in 2005 and more recently. But there BoA members found fault with Freeman’s argument.
“These pictures show more than one piece of equipment on this property,” pointed out board member John Mills. “Where are the pictures without equipment on the property?” he asked. “There is equipment in the photo.”

“There are two little ones,” Freeman replied. “But they weren’t visible. It’s vastly different from the present.”

“Your point is there are even more trucks than there used to be,” queried Mills.

“It’s not just an issue of the number but of the kind,” replied Freeman.

“The point of this hearing is to determine if the purpose was always to store equipment,” pointed out Mills. “The issue isn’t of how much but whether it was there. This picture of a tree growing through a truck shows it has been in use as such for a long time,” he concluded, further pointing out that the photographs showed equipment stored on both of Justice’s adjacent parcels.

“He can’t show you what he was doing in 1982,” said Freeman.

“And you can’t prove that it wasn’t used for this in the 1960s,” replied Mills.

“Since 1998, when I moved here, it has not been used for anything like this, not to this degree,” Freeman asserted.

Freeman said the opponents’ complaint centered around the fact that the parcel has AR-Agricultural/Residential zoning, “and this is not an agricultural or residential use.”

Board members, however, said the issue wasn’t the AR zoning but rather the pre-existing non-conforming use, which they said the photographs and testimony indicated had been in place.

“I don’t think there’s evidence that it is,” said Freeman.

“That’s the board’s decision to make,” board members replied.

And decide they did.

“I don’t think there is any question that the gentleman has used this location for his business,” said Mills, “whether there are more trucks now than there were. Our determination has to be whether it has been used for that business or not. The pictures show that. The testimony supports it.”

The board voted unanimously that the existing non-conforming use had been proven and could continue.