Don't Take The Cape Vincent Zoning Law Literally? I'll bet BP Would Love That!

On the blog Pandora's Box of Rocks you can view a video of a discussion between CV Planning Board Chairman Dick Macsherry and myself over the permit granted to Mr. Alexander for a solar array in the River Dist.  The video may also be up on Steve Weed Productions soon.

Now I mean no disrespect to Mr. Macsherry...but this is a debate on important issues surrounding the interpretation of our new zoning.  This is not an attack on Dick Macsherry.

If you watch the video you will see me make a point that under the new law the solar array is too large and as such in table 8 which you can see here below a solar electric conversion  system (SECS) with over 100 sq. ft of array is not allowed in the RF Dist.  There is a X in the box indicating it would not be allowed.  That is really very straight forward as I assume the table was intended to be easy to read and interpret. 

Mr. Alexander has two arrays at 720 sq. ft. each. 10' x 72' each.

Mr. Macsherry responds by saying that what is important is the intend of the law as they wrote it on this issue, not the literal meaning. This is where I have a real problem.

He goes on to say the intent was to not necessarily not allow something, but in the case of this solar array to look at the circumstances of each case, and to try to keep it from visually disturbing anyone or blocking views of the river etc.  He makes the example by saying that in this case even though the literal table 8 shows this array would not be allowed, he then says he looked at it and didn't think since it was only 10 ft. high and in a slight bowl along 12E it would not bother anybody...although he does say maybe Mrs. Grogan a neighbor might have an issue with it. So why have this in the table at all if that is the case. Thismakes no sense to me.

Now here is the problem as I see it.  If we don't take our zoning law mostly literally especially  in places like table 8 that show what is and is not allowed then this law becomes pointless!  The implication here is that everything whether listed as not allowed or prohibited would actually mean...well maybe.  It would mean no real rules or regulations, we would just take a look at it and make a decision. At that decision could change from person to person and from this planning board to the next. That is why you have literal regulations so there is consistency and things don't get arbitrary and capricious.

In fact this exact point was made by a county planner way back in 2006 when CV started to grapple with wind  development and a  wind law and Edsall and Rienbeck wanted the siting of wind under site plan review and the planning board.  The county planner in a fax to the town said it was NOT a good idea, that there should be wind zoning regulations in place to be consistent over the years and with changing govt or boards. And to be consistent you would have to have literal zoning regulations.

   Or are we going to say basically every use not allowed is really not allowed, but up for site plan review or special use permit.  What this means is they should get rid of table 8 and just say there isn't anything really not allowed like the X's in certain boxes...we will just take a look at it and the  general intent and get back to you!  The scary thing is this power and rational could be concentrated in the hand of one officer the, the ZEO who grants the original permits.  If he doesn't follow the regulations literally he alone could start interpreting the supposed intent of the law and start allowing anything he preferred.

Now that is a dangerous zoning idea to me.

So let me give you an example. 

A commercial solar array as big as Alexander's is not allowed  according in the River Dist according to our law.  Or do we instead just take a look at it?  Well what about fracking in CV?   That is outright prohibited!  Or does our zoning by Mr. Macsherry's argument now mean well maybe??? Or in the opinion of the planning board if  it isn't too ugly or blocks somebody's view or too noisy it may be OK on a case by case basis even though the law says NO.????? How far do we take this not literal idea???

And what about the wind turbine exclusion zones in the new zoning that the town has indicated it will strictly defend before Art. X.  They appear real literal to me!   Are those not really literal either, just sort of an intent that has leeway?  Does 2 miles from the waterfront or 1.25 miles from schools just  mean it might be OK if BP comes and talks to us?  Do we take those sound regulations as literal or just kind of a general idea.  What's a few DBA's right?  I can't hear them!!! If I have bad hearing does this apply to me?

I hope you get the picture.

I really hope we are not going to defend our law in the Art. X process with this reasoning or the idea it was just an intent not really literal!!!  I'll bet a BP lawyer would  have field day with that!

This is why this issue with the Alexander solar project under our new law could be a real important test to see just how the people who wrote the law and will defend it and are really thinking and how the law gets applied and will stand up. It probes the thinking under pressure of the people who will defend it. That IS important.

Besides, the intent of what we want in our community is the job mainly of the comp plan...the zoning is what carries out the comp plan intent in specific laws and regulations.

That is why the State says the zoning must be in accordance with a comp plan.

This idea of not taking the law literally like Table 8 is a bit disturbing to me!

Table 8 should have an "M" added to it.... Forget that X...M= maybe!