BP, The Town, And Some Cape Citizens Agree - If Our Zoning Is Too Burdensome, Then Go Ahead and Preempt It!!!

If you read the previous post, I commented on a person's suggestion that we should all support our Cape Vincent town board in protecting home rule.

So I decided to go back to the NYPSC website and take a look at the comments submitted by our town and local CV citizens during the period last year when you could comment on the draft Art. X regulations.

Seems as though if you wanted to get involved in the Art. X process and protect home rule this would be a good place to express your strong objections to Art. X regulations removing home rule and preempting local laws on electrical power plant siting.

So I reviewed the comments to see how that turned out.  Here are some below from the town and some of our prominent citizens who have been involved in the CV wind issue for sometime. 

First the Town's comments on local laws:  Underlining emphasis is mine. My follow up comments are in blue.

"Since the current Town Council took office in January, two committees have worked diligently to complete an update of our Comprehensive Plan and a revision of our Zoning Law. We much prefer that our laws, which focus on health, safety and protection, are earnestly considered before they might be supplanted by the Siting Board.  In the Memorandum's section on Local Law (p.1S) it notes, "The default is that the local procedural requirement is not supplanted unless the Siting Board elects to not apply it “ We fully support this concept that our local laws shall apply until the Siting Board decides otherwise. "

Really?  They actually support the concenpt that our laws should apply UNTIL the siting board preempts them...seriously?  So how exactly does this protect home rule if you agree your laws should apply right up to the point the siting board removes them right along with your  home rule to enforce them?   Oh ...and they don't just support this idea...they FULLY support it!!! 

Seems to me if you are going to protect home rule you would FULLY object to the entire Art. X legislation that has removed your home rule.  Or at least object to the part that allows the preemption of local laws in any form!

Below are comments from Hester Chase as a private citizen.  Ms. Chase is also on the CV ZBA:

"Let the burden fall, appropriately, on the applicant to prove local laws unreasonable."

Now comments from CV Councilman Bragdon responding as a private citizen:

"I ask that the Article X Board defer to local regulations unless a high burden of proof is met that the local regulations are not reasonable and are unduly burdensome. "

Below are comments from CV citizen Donna Essegian: She was a Art. X ad hoc candidate but was not chosen.

"... the laws of the local community need to be respected by wind developers. It should be the burden of the developer to demonstrate with documented research why any local law should be set aside."

Cape Vincent,  Wind Power Ethics Group - (WPEG's)  comments:

"The applicants should bear the burden of proving local laws are burdensome. New York State is historically a home rule state and each municipality has carefully developed its own laws for its unique area."

Recognize the theme?  It's about a debate, or negotiation, or a barter over WHO should bear the burden of  proving our zoning is too burdensomeor not.  But they are badly missing a fundamental point when you set up and accept a paradigm that the burden of our law should be bartered at all in some way.  That is absurd and very dangerous ground to be on!

In fact the entire point of our law was that it IS made to be very burdensome!  If that is not your goal with wind regulations to protect your town...then what the hell is the point???  Of course it is burdensome and under home rule we shouldn't give a damn whether the developer thinks it is or not, nor should it be subjected to a system to barter that point outside a court room by removing home rule!!! 

And if you are going to claim to be protecting home rule and developed a law with home rule as the basis then there is NO barter as to whether it is burdensome or not, or if another party gets to decide or debate that fact and then preempt your law.  True home rule would dictate that the way you wrote it is the way it stands and will be enforced...period!  If the developer doesn't like your law as applied under home rule then he can go somewhere else.  Or he can sue, and then you bring the debate to one of RIGHTS, where the real argument should be in the first place...not agruing over ridiculous setbacks. 

The sad fact is that the town and these citizens have let the Art. X paradigm suck them into a deep dangerous logic hole. In their zeal to think they are protecting  our zoning and claims to protect home rule what they in fact have done in appeasing and trying to appear reasonable is basically conceed control to BP, simply by saying that if BP can prove our law too burdensome then we agree you can preempt it. That is a huge and dangerous and absurd gamble, AND still is not a defense of home rule for the simple fact that even if the Art X board sides with you...THEY not YOU will have made that decision, and that is still NOT protecting home rule or defending our laws with home rule

Then you have the comments of our two local CV bloggers:

K at Panddora's says nothing about the removal of home rule what so ever.  I guess she just sees the loss of home rule as acceptable and moves on to debating sound issues. She voices no objection to the possible preemption of our zoning laws.

Then you have JLL's Mr. Wiley's comment which I find very strange:

It is very important that Article X siting boards take into consideration past industrial wind corruption in towns like Cape Vincent before they overrule local zoning.

BEFORE THEY OVERRULE LOCAL ZONING???????  Boy, now there is a blistering argument to defend our laws and home rule!   He doesn't actually object to Art. X having the preemptive power to override home rule our laws, he just says that before you do it...just consider the past corruption!!!!  Seriously Rick???

The designers of Art. X were very clever.  They figured out early on that the mind set of unquestioning allegiance to authority of many citizens, and twisted it into a clever illusion that in citizens efforts to think they are defending home rule and their local laws they are actually giving tacit approval to removing it and preemption of their own laws.

Don't believe me...just go back and carefully read with an open mind  the comments above. They are bartering over the preemption of our laws, when the entire freakin point is their should be NO provisions for preemption at all.   By ageering to this burden of proof crap, they are agreeing to a provision that allows our law to be bartered!  Once on that level, then you have also traded away actual home rule. Home rule implies that the rule is made at HOME and not negotiated with anyone or by anyone else's PROOF!

THINK about what are you saying???   You are saying that the preemption of our laws and removal of home rule is OK...as long as BP can prove it!  And what is far far worse is as they have agreed to this bartering of our law...we have ABSOLUTELY NO CLUE what standard the Art. X board will apply as PROOF!!!    You have got to be kidding me!!!!  If the Art. X board's bar for standard of proof is low...then you have just set yourself up to be screwed!!!  Because you agreed that as long as BP can prove your law burdensome to a third party...then they can preempt it.  That is exaclty what Councilman Bragdon is saying.  His  word  HIGH burden of proof is meaningless and completely  arbitrary, yet he hinges the entire defense or preemption of our law on it! .

 It is actually frightening considering an entire region depends on people unwittingly accepting this clever twisted paradigm without much question, engineered by BP and the State!!

Yet Mr. Wiley at JLL in a recent post has suggested the the town board and some citizens of CV are the "experts" on dealing with Art. X!!!  Yet we are willing to gamble away our town laws on a completely arbitrary  "burden of proof" when  no one in CV has a damn clue what that means!

Like I have said many times...if you keep playing this Art. X game of appeasement and being reasonable you are going to talk yourself right into a nice wind farm!!!