At a hearing on December 19, the Warren Development Review Board (DRB) granted Shane and Kelley Elwell’s appeal of a notice of zoning violation, thereby allowing continued use of the excavating business they operate out of their home at 251 Doe Road with conditions.
On October 10, the Elwells received a notice of violation that they were in violation of the Warren Land Use and Development Regulations. The letter cited Article 2, Table 2.6 “Alpine Village Residential District Prohibits Commercial Uses. The business activity does not meet the standards of a Home Based Business [Article 4, Sec. 4.8] nor that of an Industry [Article 4, Sec. 49]” and “Article 3 General Regulations, Sec.3.4, Erosion Control & Development on Steep Slopes, disallows the addition or removal of earth without a permit” for a driveway they put in this fall. The letter asked the Elwells to “cease and desist, all commercial operations and the movement of earth and trees, immediately.”
“This is eating us alive,” Kelley Elwell said at the December 19 hearing.
Shane Elwell has operated Elwell Excavating from his family’s property since 2015. In the Elwells’ letter of appeal they stated, “We were issued a permit for a garage 29 feet by 40 feet (original permit request was for 28 feet by 40 feet) with dwelling above in 2015. The zoning administrator [Miron Malboeuf] was aware of the intent to run a home-based excavating and logging business from the building and surrounding property. We were told that this would allow for five employees at this location … In 2017, an additional permit was secured for an adjoining 18 feet by 60 feet garage, again, with intent for business use … We were not advised to obtain further permitting for the business and certainly would have done so in the beginning.”
They received verbal confirmation from the former zoning administrator, who is in poor health and was not able to confirm such verbal consent had been given.
“I don’t think this is a home occupation, which is conducted entirely within a residence,” DRB chair Peter Monte said. “Outdoor materials are not allowed. The Elwells relied on Miron; he was wrong. If they’d applied for a permit for home occupation or other commercial entity they wouldn’t have gotten it.”
The DRB agreed to apply an estoppel, defined as “the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.”
The Elwells are permitted to continue the operations of their business at their home under the following conditions: the business is limited to two employees, both of whom must reside on the property (they do not have any employees), all commercial activities are confined to the quarter acre property and garage, there is a limited number of vehicles able to be stored outside on the property, any vehicles intended for the road must be registered and operational, hours of operation are limited to daylight hours between 8 a.m. and 6 p.m. on weekdays and 10 a.m. and 4 p.m. on weekends and performance standards as specified in the zoning regulations apply. The Elwells are not to expand their business operated on Doe Road. The Elwells’ appeal of the zoning violation was granted except for the violation of constructing the driveway.