Planning Board Member Bob Brown's Lecture On Special Use Permits

During last Wed night's  Cape Vincent planning board (PB) meeting Mr. Brown who is the vice chair of the PB gave an explanation of special use permits.  I wasn't aware the planning board was now taking agenda time to give educational lectures on zoning!

I am guessing this was a direct reaction to the fact that the PB was reviewing the Alexander solar project under the new zoning as if the PB owned the process and didn't bring the ZBA into the loop on  a special use permit was needed for this Alexander's solar project and the Zoning Board of Appeals (ZBA) has original jurisdiction powers over special use permits and approves or denies them.  They were read to move ahead anyway!   This "lecture in my opinion is just another move to smooth over a zoning goof up by the planning board and zoning enforcement officer.  And actually it didn't turn out that well.  I appreciate Mr. Cullen's honesty.

And if you don't believe me, read our new law under special use permits and who has jurisdiction to approve or deny those permits...it ain't the planning board. The PB can advise them, do the site pan review of the project  but the ZBA has final control over the approval of the special use permit  The ZBA can request advice from the planning board etc.

Here is the section from our new zoning on the ZBA and special use permits.

Now you must understand before we start getting distracted on SU permits, that under our new zoning as they started to apply it and discuss it  to this project actually would not allow Alexander's solar project at all. And it is important to understand that they had a detailed discussion on this as it would apply to the new law, for almost 20 min.

  How come that was never  explained to Mr. Alexander in what the PB and Mr. Brown are now dismissing as just a  "pre conference" on this project.   Seems to me that is a rather critical point.  Why discuss the project for 20 minutes as if you are going to entertain the project for site review, and all parties  including Alexander agree it will be by the new law, when in fact the project isn't even allowed b the new law?????  In that case forget SU permits...it is just a side issue in the goofed up process!

Now even if  it was  shifted to residential solar and some technicality  goofing around was done with the solar arrays and it was allowed, it STILL would need a special use permit from the ZBA and the ZBA has never seen this project.  In fact this was the case several days after the fact when I had a conversation at the town offices with Mr. Macsherry.  He was still applying the NEW law AND telling  me how Alexander could make his project technically legal under the new law by screwing with the array and property sq. footage requirements if he just separated the panel arrays by an inch.  He had the new law in front of us and was point at it.  The new law. A it was a nosense explanation he was trying to pass off!

So thes project is illegal under the new law and one critical question is did it ever get to the ZBA for review and a special use permit as it should  have? 

NOPE!!!

Two officers admit  and the ZBA minutes show it NEVER was brought before the ZBA as was proper!!!

 If you look at the Steve Weed video you will see my discussion about this with the PB.  Notice what Mr. Cullen says.  He admits a couple times early on this project should have initially gone to the ZBA.  When I ask Mr. Brown if I had  a project that required a SU permit, where should it go, and he says initially to the ZBA.  But it never came before the ZBA.

Now back to Mr. Brown's lecture where he got some important things WRONG!

He and Mr. Cullen were claiming that the ZBA only has two powers it is restricted to, and implied that was the case in our new zoning.

1. The power to hear appeals on zoning issues, and interpret the zoning law.

2.  And the power to grant use and area variances.

You can see this happen if you watch the 7/10/13 PB video discussion.

I told them that was wrong.  That according to NY zoning statutes the ZBA can also be granted what is called "original jurisdiction" to approve and deny special use permits. But they can only get that power if the zoning law adopted by the town board grants them that power.  Look at the CV  law page I posted above and you can see that is the case in our new zoning.

And what is so ironic is that Brown  was the chairman of the zoning committee that actually granted the ZBA that power!!!  GO FIGURE!!!

Here is what a training paper from the NY Dept of State says on this issue. Underlining emphasis is mine.

"Where a zoning ordinance or local law gives a zoning board of appeals powers that are in addition to its appellate powers, the additional powers are referred to as "original jurisdiction." Matters involving original jurisdiction may be granted to a zoning board of appeals by the zoning law or ordinance, but do not have to be. Examples of original jurisdiction include the power to grant special use permits and the power to approve site plans. There is nothing in the statutes that specifically provides for these powers to be exercised by zoning boards of appeals. If they are given to such boards it will be because the municipal zoning ordinance or local law so provides."

Mr. Brown and the CV zoning committee and the zoning lawyer and the town board gave this additional power of special use permits to our ZBA IN OUR ZOING LAW!!!

Now to the bottom line here.

The PB says when they talked to Alexander about his project, oh  it was just a pre conference to get the facts and explore the project and then after exploring it in some detail they decided it was actually applied under the old law and the ZEO could just renew the project so they cancelled the site review public hearing.

But conveniently here is what they don't want you to know.  Mrs. Grogan a neighbor and myself and another person started to research the issue and complained to Mr. Macsherry that the project as they discussed for 20 minutes, and all parties  agreed it would go under the NEW law was illegal in the RF Dist under the new law!!!  Keeping in mind this project also had changes to it and was granted illegally under the old law.

It was only THEN after a series or serious errors that the scramble to somehow make it legal by the PB started to cover their mis-steps.  They want you to think it was all their doing. That they caught the issues and straightened them out.  Not so.  That is verified by the fact that after we notified Macsherry of the errors several days later I talked to him  and he was still trying to find a way to scramble to make the project legal under the new law, and was on his way to talk to Alexander about how to do that.  I will talk about that in another post.

And here is the other thing that tells me this was an after the fact scramble.  After this so called pre conference that was just informational, and they  were going to explore this in more detail and even with the town lawyer and spend all the time they claim...why would you schedule a public hearing right  then?????  Why not get those facts first to see if a public hearing was justified at all? 

Why,  because the PB was ready to move ahead with this permit in the new law WITHOUT further analysis, and WITHOUT the ZBA in  the loop as required UNTIL we called them on it and showed them it was illegal.  In fact if you were so confident to schedule a public hearing, and everything was OK then why later AFTER the fact do you drag in the town lawyer?  Why...because they need egal advice after a scewup...that is why!!! 

  Seems you would want the lawyer to look at it BEFORE you scheduled a public hearing.  Keep in mind on public hearings they are for the public to object.  Most times it is a formality and the PB has mostly made up it's mind, and if there are no serious objections they approve it.

You go back and look at the Steve Weed PB 7/10/13 video starting at 32 minutes.  This board was nearly fully in approval of the project already and under the new law. Everybody was in agreement and happy, even Alexander. 

So much so that Macsherry scheduled a public hearing.  They had what they thought was all the info they needed to move ahead, even though the ZBA had not even seen this project.  If we had not objected I would bet this project would have moved right ahead under the new law and been approved even though it was illegal under the new law and they never caught that fact  Ooooops!!!

Then and only then the scramble began...including the town lawyer to somehow rectify a screw up.  And the only thing they could come up with was to cram it back under the old law and hope no one would notice and the whole mess would just go away.

 I had a call and a discussion with Mr. Macsherry on this whole mess, but after a while he did not answer emails.

BUT...the problem is that doesn't solve their  problem either because the original permit was granted illegally because it was a  commercial project in the RF dist. that NEVER got the required site plan review by this planning board.  And they even admit on video it never had that review!   So if you grant an extension you are granting the extension of an already illegal permit!  And why at some point would you not give it a proper review???/

What a great and wise expert solution!  Not to mention this is once again the same parties in the Alexander, Alan Wood, Rich Edsall illegal wind turbine fiasco  and on the same properties...and now it may even be that the solar array (illegal) and the turbine (illegal) are going to be connected in the same renewable project.

What a mess, and Mrs. Grogan the same neighbor as before is caught in the middle, and once again gets  hammered by another CV zoning disaster!!!

I would bet she has had enough yet!!!

 There are two additional things I want to say.

1. The PB was very gracious to hear me out in the last PB meeting and foster a detailed debate.  I do appreciate that.  It would have never happened under the old Edsall planning board. That is refreshing and I give them a lot of credit for that.  Under the old board I  probably would have been arrested or the meeting shut down.

2. As many of you know I have had  many concerns on this blog about the town's  zeal to support solar, and concerns they really didn't understand the solar issue thoroughly.,  And here we are in a solar project permit mess!!!


There will be a lot more on this.  The next post will likely be how Mr. Macsherry attempts to make an illegal project legal with some strange technicalities with solar arrays.