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and capricious, vague and ambiguous ... an illegal exercise in legislative authority.”
In his request for a review by the court, Davis alleges that issuance of the variance and special use permit violated provisions of the zoning ordinance's flood plain district.
As uses permitted in a flood plain, the ordinance lists agriculture and conservation, recreation, plant nurseries, forestry, fences, pipe lines and pumping stations. It goes on to state that “no permit shall be issued for any building, structure or sewage disposal system to be located on a flood plain...”
According to the papers filed by Davis on behalf of Mr. and Mrs. Fred Schaefer, Mrs. Louise Varner and Mr. and Mrs. Curtis Dodson, the BZA’s decision also violates the ordinance's provision for non-conforming uses. Uses in existence prior to the ordinance’s adoption in 1973 were authorized to continue as non-conforming uses.
The cooperative building that Johnson proposes to rebuild for an automotive body shop was destroyed by fire in 1968, however, and so wasn’t being legally utilized at the time of the zoning ordinance’s enactment.
According to the papers filed by Davis, the burnedout building has never been replaced and was not given
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