Does Our Zoning Law Already Challenge Article X?

Did the zoning committee and town inadvertently place language in our new zoning law to already challenge State preemption of our zoning? 

There is a discussion going on the Pandora’s Box of Rocks blog about supersession of our zoning law  and constitutional rights.

 One commenter has claimed our zoning law already has language in it that would not allow it to be preempted or superseded. This language is right near the beginning of our law and says:

“2. This law supersedes all commercial, industrial, and private agreements affecting any aspect of this law, except as specified in this law.”

However, this language is not intended to stop State preemption.  Basically this language is designed to stop things like good neighbor agreements where a good neighbor might allow closer setback to his property line or house for wind turbines trying to circumvent the setbacks in our law.

However there is real interesting language in our law in section  5.9 “Interpretation” involving the Zoning Board of Appeals.  It says:

“Interpretation:

Interpretation and application of the provisions of this Law shall be held to be minimum requirements, adopted for the promotion of the public’s health, safety, and general welfare. Whenever the requirements of the Law differ with the requirements of other lawfully adopted rules, regulations, or ordinances, the most restrictive or that imposing the higher standards shall govern.”

Note that the language does not outline whether the less restrictive rules, regulations or ordinances are from a State law like Article X.  It just says “other”.  It doesn’t say that  the other regulations  are  only local either.

So does this mean that if our law is restrictive and Article X decides that our setbacks should be less restrictive,  that our law should then be the law that prevails since it imposes higher standards???? Does this mean we already have language in our law that attempts to challenge any Article X preemption by the State???   Does our law already set us up for a constitutional challenge?

Very interesting!!!   Maybe the zoning experts like Mr. Brown should explain this one to us!