As you dig around in BP's responses to comments on their PSS to see what they say about our local laws, and what they intend to do, you might want to read this information below to help understand what they are talking about in "general laws" .
It was taken from an analysis I found some time ago by the Community Environmental Defense Fund about NY home rule and state preemptive powers.
This is what BP is basically referring too.
C. Local governments have the authority to supersede certain general statutes pursuant to their home rule authority. Towns and villages have the authority to supersede provisions of the Town Law and Village Law, respectively. Cities have the authority to supersede the provisions of any general statute unless the State Legislature has indicated that a particular statute is not to be superseded by local law. With respect to cities, it is important to point out that a state statute is not a general statute if its provisions do not apply alike to all cities in the state. This can happen in two ways. First, where the statute itself specifies that it is applicable only to certain cities, or only to cities of a certain size, population, location, etc., the statute is not a general statute. Second, if the provisions of any valid city charter contradict a state statute, that statute is not a general statute because it does not apply alike to all cities in the state. If a statute is not a general statute, a city need not use its supersession authority to adopt an inconsistent local law, because the consistency requirement applies only to general statutes.
D. The home rule authority of local governments may be preempted where the State Legislature has evinced an express or implied intention to do so. The requirement for consistency with the constitution and general statutes is a significant limitation on the home rule power of local governments. A local law will be inconsistent where it directly conflicts with or contradicts a provision of the constitution or a general statute. Furthermore, a local law will be inconsistent if the State Legislature has evinced its intent to preempt local regulation of a particular subject. Such an intention may be expressly stated by the Legislature, or it may be implied by such factors as the comprehensiveness of the state regulatory scheme, the nature of the subject being regulated, the need for statewide uniformity in regulation, etc. The purpose and legislative history of general statutes are often determinative in deciding whether there is an implied intent to preempt local regulation.
STOP, The regional wind energy industrialization of one of New York State's most beautiful and environmentally sensitive areas, the 1000 Islands of the St. Lawrence River and the Golden Crescent of Eastern Lake Ontario. If you don't think you are seeing the most recent posts click on the current month in the archives to the right.
You keep saying I'm missing the point.
ReplyDeleteHere's a point maybe you're missing. Part of this ART. X process is to establish some statewide standards to apply to wind development, as this latest post points out. No towns have refused to comply with the process ,so basically and realistically the Cape Vincent case will be a prototype for future applications.
How could the town of Cape Vincent officials even consider compromising on any of the guidelines in their zoning law, knowing full well that any reduced standards could be the benchmark for the state,especially to do so willingly during the stipulation phase, before their ad hoc members have even thrown a punch in the fight.
Again...forget the zoning law for a minute. If BP isn't going to budge, and that is obvious by there response document today. And the town is not going to budge as you suggest. What then is the point of entering ino any process like the stipulation process that is all about negotiation..eventhe town say they are going to have attorney Cutin there for the "negotiations"
ReplyDeleteWhat do they think they are going to achieve???
Lastly one way or the other it doesn't matter if the town compromises or not. That decision is no longer in their hands!!!The State will determine that for them. At the final hearing the town will negotiate there position with the State and so will BP, and then the State decides.
And what about Cuomo and a prototype? How could he be party to a denial of wind development? Do you think that one of the first tests of his Art X law he is just going set a precedent to say. "Oh well any town with a good zoning law that effectively bans turbines is just fine?"
I seriously doubt that!
But again...why is the town entering into any kind of stipulation process with BP? There doesn't appear to be ANYTHING to negotiate.
So why are they there and what are they going to agree to with BP by stipulation?
"Lastly one way or the other it doesn't matter if the town compromises or not"
ReplyDeleteOf course it matters, that's what we are debating. You keep jumping off to other issues, and now you want to say it doesn't matter. The whole point of our conversation is about the value of not compromising the zoning law within the confines of participating in the ART. X process, and your historical insistence on implying that the town intends to compromise.
Point of reference-you know I agree 100% that the town of Cape Vincent, or any other town, should never have decided to participate in the ART.X process. Would have been preferable to challenge the State's attempt to pre-empt Home Rule ,rather than engage in this quagmire of regulatory procedure,stripped of autonomy.
But they did decide to participate, they even engineered a COmprehensive Plan and Zoning Law that in their ,and their attorney's mind. will withstand the state litmus test of being "reasonable". They have subsequently made numerous public declarations that they will not negotiate the terms of this law.
All other issues aside, from this perspective, tell me there is any logic that allows them to compromise at this juncture?
This may only be my personal interpretation, but in a sense, they are telling the State-Okay if you are going to abuse your authority by removing our home rule rights under the presumption that it is for the benefit of the state as a whole, then we are going to force you to prove you have the citizens interests in the forefront. Inundate the process with "reasonableness" ,until it comes out their ears, making it all but impossible to reject the application of our" reasonable guidelines". Will it work? Is it the right maneuver? Who knows?
All I'm saying is, given this mindset, there is no value in compromising on the law, in fact it would better serve the reality of the situation to strongly encourage the town to hold fast, play it through. Continually expressing doubt about the resolve of our officials can only be self-defeating. What's the end-game?
What doesn't matter at this point is that we may disagree with the approach ,because it is happening.
Incidentally the abusive comment at 4:32 is not mine. But of course you know that.
Dave LaMora
To my readers as you have seen there was a foul comment from left above on my blog.
ReplyDeleteThis personal has not had a relevant point in the past and continues to not have anything except fould attacks. In all the comments i have ever posted on any blog I have never gotten into the cesspool this person apparently needs to support their imbalanced personality.
I will not let this person control this blog by putting on the comment moderation. The comments will simply be removed.
This person has no point and is reaching the level of harrassment, and that will be dealt with.
Dave
ReplyDeleteThere is too much to answer here in your comment, so I will focus on this part of your comment as to your speculation on the town's strategy. here is your comment:
“Inundate the process with "reasonableness" ,until it comes out their ears, making it all but impossible to reject the application of our" reasonable guidelines". Will it work? Is it the right maneuver? Who knows?"
I think you may be correct on their approach, despite the fact we disagree with it..
But if it is let's consider something.
We have a Gov. and a State with a very green agenda. Hanging above their heads is a renewable portfolio standard forcing them to meet certain green energy targets. They are so committed to this that they pass Art. X that removes the rights of NY citizens so they can more easily push their agenda, and on behalf of energy corps.. This legislation passes with overwhelming support. of both parties
In addition we have a Gov. who let an investigation of our former town officers evaporate probably because to continue would have come too close to his favorite former NY Sen. Aubertine who is directly connected to the CV wind ethics mess. Then when NNY voters throw Aubertine out of office basically over his questionable wind issues, Cuomo just slaps us in the face and appoints him to a high level State position. Now this would be near the same time Cuomo was strutting around NY telling voters about his integrity in govt plans.
Then Cuomo reappoints a NYPSC commissioner whose husband just happens to be the lawyer for BP’s CV Wind Farm. This lawyer will in effect by connection be representing
Cuomo’s Ag. Commissioner Aubertine’s BP wind leases in the BP CV project. Cuomo had to know this of else he and his staff are incompetent at appointments!
Now considering all this, and the nasty hardball politics already demonstrated by Cuomo and the State does the town actually think they can play a game with “reasonableness” to force the State and Cuomo into a corner? Seems to me Cuomo and the State have already clearly demonstrated what they are capable of, and I doubt seriously any “reasonableness” is going to factor into it!
To me this is akin to thinking that if you are “reasonable” to the school yard bully you can force him into reconsidering taking your lunch money!