Madison PZC Denies Excavation Application at Dairy Hill

The Planning & Zoning Commission (PZC) has unanimously denied an application from Kenneth Evarts that would have allowed him to continue his earth moving and excavation business on property he owns at the end of Dairy Hill Road.

Over the course of the past 14 years, Evarts has maintained equipment-heavy trucks, earth movers, bulldozers, gravel separator, etc.-on property and has excavated, moved material, filled in, and leveled areas of his property to create residential building lots. He sold these to contractors who built high-end homes on the lots. According to Evarts's attorney Thomas Cronin and his engineer Eric Anderson, it was Evarts's intention to continue developing the approximately 17.5 acres as residential lots over time. The recent drop in the housing market has postponed that plan, Anderson said.

Evarts presently stockpiles material on the site-sand, gravel, and other "road base materials"-Anderson said. It was Evarts's intention to "finish off" a portion of the property and "turn it into hay fields" until the housing market rebounds. The excavation and remediation would "take place in phases," Anderson said.

Evarts was seeking an application for an earth removal operation for 20,000 cubic yards of material. Cronin told the commission and the audience of Dairy Hill neighbors that Evarts considers the operation he is now conducting on his property to be permissable.

"We are not saying that what we are doing is not permissable. The town says it is not permissable, so we are here with this application...It is the path of least resistance...It is the simplest application we can file in response to the town's position," Cronin said.

Zoning Enforcement Officer Marilyn Ozols, in response to queries from Dairy Hill residents, reviewed Evarts's file in October and determined that the operation, as presently being conducted, was not permissable. The residents have contended that the operation has continued on for 14 years and that Evarts has been conducting a commercial operation in a residential zone. They also raised issues of safety, contending that heavy-duty dump trucks travel in and out of the site along residential streets where children play and wait for school buses and that the site itself is dangerous, with heavy equipment and earth-movng equipment stored there.

After listening to the Dairy Hill residents and questioning Anderson about the present operation on the site, commission members, one by one, stated their concerns.

Diane Stadterman said, "These people bought their property in good faith. They were told the [Evarts's operation] was a temporary situation and now it is 14 years later. I very much understand their point of view."

The contention that Evarts was "ignorant of the fact that he needed to renew his permit just doesn't cut it with me," Stadterman continued. "I will not support this application."

Member Tim Millhiser said, "This is a residential neighborhood...I don't see how we have grounds to allow this use to continue. The fact that the site is not fenced off I find rather disturbing."

Other commission members agreed, saying that the continuation of a commercial operation in a residential zone was not appropriate, that there was a significant safety issue, that it created a detrimental effect on the value of surrounding properties, and that "clear violations" existed. The commission's decision was unanimous. Ozols said she will review the file further to determine how best to proceed. The commission, she said, anticipates the issuance of a cease and desist order and a plan for remediation.

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