We Have NO Home Rule On The Wind Issue - Not Now And Not Later - A Response To Comments By Dave Lamora

My readers may have missed a debate between Cape Vincent citizen Dave Lamora and myself in the comment section of one of my posts. Although I think Dave and I agree on many of the big wind issues we have some differences that I think are very important to examine. Dave is a person who I believe carefully examines his arguments, and has shown siginificant commitment to the community since he volunteered a great deal of time to the formulation of our comprehensive plan.

But before we go on, Dave you have to understand that because I disagree with you or the town does not mean I am attempting to belittle anyone.

Here are Dave’s last comment. as posted in the comment section of my blog. I apologize for the format of the comments. The copy and paste was not working well.

“I have been deservedly accused many times of being an idealist .If I were the DEC representative on the ART.10 review panel, I would find it virtually impossible to justify issuing a permit to BP for a project in Cape Vincent ,considering the language in the Cape Vincent Comprehensive Plan, and considering the above stated DEC policy. Particularly when the New York State Municipal Home Rule Law, specifies that a community has the authority to protect and preserve its physical (visual) character, and the default position of the ART.10 rules is to follow local law.

I believe this element of the Home Rule is just as defendable as public health and safety, perhaps even more so because aesthetics does not require justification. The original SEQR law stated (in my words) that visual character, and value only need be defined by the community itself, it is not subject to interpretation or contradiction by others. It cannot be challenged by studies or research, or even need to be qualified. It has legal status.

As you know I was dissatisfied with the lack of stronger specific protections for scenic quality in the revised Zoning Law, but even as written it provides more than ample justification for precluding industrial turbines.

If the DEC representative has any sense of integrity for his agency's "raison d'etre" he would deny a permit. I certainly do think the Town and their attorney should press this point.

If you genuinely are confused, I would venture to say it is because you continue to view this entire process from a perspective that allows no alternative interpretation.

Consider this if you will.


In the larger context, New York State has legislatively taken complete autonomy on land use from local municipalities, by exercising its authority to pre-empt local laws. Collectively, by refusing to challenge this abrogation of control, the local municipal governing system has conceded this control. Like you ,I am appalled both by the legislation and the local level response. Nevertheless, it is law and townships are following it.

In the practical , applicable context, what I see is a municipality(Cape Vincent) who has conceded autonomy but not Home Rule. In effect, if pre-emption does not take place and our local laws prevail and are applied to the project application, we do not lose Home Rule. You can argue the logic of this, belittle anyone who espouses to it, and continue to advocate for a rebellion to reclaim complete autonomy, but I will repeat again-to what end?


It is not my interpretation or the course of action I would have chosen to take, but the fray has been entered and resources devoted to its conclusions.


Think carefully if the accusations/protestations that you make are beneficial or detrimental to their and our eventual cause.”


I will focus on the part o Dave's comment about losing or nor losing Home Rule because I think it gets to the crux of the matter and is a belief (I believe erroneous) held by many in our community concerning Art. X’s preemption power.
I strongly disagree with the argument that if the State doesn't preempt our law, then we retain Home Rule. Here is why.
First you can not split Home Rule from autonomy as Dave suggests. . Home Rule IS autonomy. You can’t become just a little bit pregnant on this issue! Consider what the National League of Cities says as a legal opinion on Home Rule.

“Home rule is a delegation of power from the state to its sub-units of governments (including counties, municipalities, towns or townships or villages). That power is limited to specific fields, and subject to constant judicial interpretation, but home rule creates local autonomy and limits the degree of state interference in local affairs.”

And note something important that I will get into later. This opinion does not say that Home Rule is applied differently by a State from one municipality to the next. The application is uniformly applied.

Home Rule IS autonomy, and they can not be separated.
So here are two questions to consider.

1. Why do the Art. X regulations allow pre-emption or local laws? What is the point of at? How do they legally come about?
2. No matter what the Art. X decision is in terms of our zoning law, WHO determines the final outcome of our law. Is it the town or the State?

Dave, and many others supporting our town govt. make the assertion that if the State lets our local laws prevail, then we have not lost Home Rule. I disagree!

If the process is entirely set by the State and within that process from it’s inception is the power to remove Home Rule with an expressed intent to preempting local laws, then it should be obvious you have NO Home Rule no matter what the final decision is.
I believe the fatal flaw in thinking is that the final outcome is the determining factor in whether we retain Home Rule or not. I believe that is incorrect, and that the original intent and how the process is carried out is what determines your Home Rule status, not the final outcome. In terms of actual Home Rule or not, that final outcome has been rendered mostly irrelevant. Even the NY State Constitution, and Municipal Home Rule Laws recognize this expressed intent up front idea.
Here is why I believe this.

They state that one way for the State constitutionally override Home Rule on issues they feel are of critical importance is by deliberately expressing the “intent” to remove Home Rule in a general State law on an issue and occupy that field of legislation. They do not say that Home Rule will be determined later on a community by community basis as a result of whether the State agrees with each law or not.

Therefore I believe based in part on this that it is incorrect to imply that a later decision under this regime has granted you back Home Rule or that you have protected or defended it.

Legally and Constitutionally if the State removes your Home Rule…then it is GONE, and no decision later brings it back to life. That would be like the State preempting itself in its own law.

Next, whether you have Home Rule or not is not a vague sliding scale based of a final decision. You either have it or you don’t.

If you are going to rely on the final State decision as the determinant factor as to whether you have Home Rule or not, then what is the standard for determining your Home Rule? This becomes a real slippery slope and the State has wisely avoided it by not letting it rest on a final decision later. It is probably why the State has recognized they will express an intent upfront that home rule is removed in its entirety on an issue by law. Not on a negotiated piece meal basis for each community. They aren’t going to play that game even though you believe you can.

Do you only have Home Rule if the State agrees absolutely 100% with every regulation in your zoning? What if the State says… “well we agree completely with you Cape Vincent EXCEPT on this one little setback and we would like liberalized by 10 ft.! Is that us retaining Home Rule ? Would the State’s decision to allow for one turbine placed well into the CV interior be a victory for retaining Home Rule? Are five turbines retaining Home Rule? Ten, twenty, or Sixty? Is an agreement to an alternative to our law that is not necessarily 100% in compliance like Judge Agresta suggests…is that retaining Home Rule? If you use the final decision as determining Home Rule…then where and who decides when Home Rule is being protected and when it is not, or if we have lost it or not?

It becomes an absurd slippery slope vague opinions, and that is why the State has removed Home Rule up front…not let it rest on the final decision for interpretation from one community to the next. You don’t have Home Rule…It was taken away by right up front by expressed intent in the Power NY 2011 legislation…period!!! You don’t suddenly get it back just because the State agrees with your law. That is defending your law alone…not Home Rule which has already been removed!

Then there is the need for a uniform application of Home Rule up front to not be arbitrary.

In NY Town Law Article 16, Sec. 272 on comp planning, the State encourages communities to comp plan and zone and that is uniformly applied to every community in NYS. It doesn’t say Lyme gets to comp plan and we don’t. Nor does it say… make your comp plan and then we will decide on a case by case basis after the fact if it will be valid. In addition in the legislature’s intent and findings in Sec. 272 the State expresses how crucial local comp planning and zoning is to the community and State’s well being.

Yet Art. X does just the opposite and insidiously rips apart this intent and let’s every community fend only for themselves and their zoning and their specific interests as warring parties. It applies comp planning and zoning on an absurd… contrary to other NY laws…. arbitrary piece meal basis. For example the State could say…

“OK CV your experts did an excellent job defending your law. So we will uphold your laws as is, and the applicant must comply. We aren’t giving you Home Rule…just allowing your law to stand. But Lyme and Orleans, your experts didn’t do so well and your community has more interior, so even though you have a law and comp plan just like CV’s and you don’t want turbines…we rule your law too burdensome and you get X number of turbines!”

Again the point is there is no Home Rule and any uniformity to apply it is gone in either case when the final decision is what you think you can consider Home Rule or not.

Home Rule has to be uniformly applied across the board State wide to be valid on the issue at hand. Piece meal decisions from one community to another is NOT HOME RULE! And why is that… because like I said the State removed Home Rule upfront with an expressed intent in law to take it away on this issue. That is a legally binding requirement. So their final decision is invalid and irrelevant as a criteria for whether you retain Home Rule or not…you don’t and the State removed it up front, and it is flawed analysis to believe they are somehow arbitrarily giving it back because they may agree with you later.

Now what significantly disturbs me is that a fair number of people including our important town leaders are willing to accept this final decision as protection of Home Rule premise in lieu of what IS ACTUALLY HOME RULE as defined in the NYS Constitution and Municipal Home Rule Laws instead of protesting and fighting what is obviously terrible public policy and an insidious system THAT HAS REMOVED HOME RULE, and by following and validating it will have terrible consequences in precedent !!! And because “ it exists” and because the Town has chosen to follow, means we must follow too is very weak reasoning in my opinion.

So what does this imply? In my opinion it implies that the town and many of their supporters are participating in Art. X on a completely false premise. They erroneously believe they can retain or reestablish Home Rule based on a fully committed approach to chase a final decision that they believe validates Home Rule. When in fact the State has already removed Home Rule legally by an expressed intend in the Power NY 2011 legislation. The town is chasing something that has constitutionally and legally already been REMOVED no matter what is decided later.

Now they can try to defend their specific law in isolation, and hope the State will agree with them. I get that. However, that is not comprehensive for regional protection. That is a narrow defense of just our community, but is certainly NOT defending or retaining Home Rule for us or other communities in a combined effort to save our region from corporate and industrial and State political control.

Let me explain this.

There was a previous time in the wind battle when this flawed analysis to accept the condition and go along with it as we are doing with Art. X was also the norm. Some of our current town leaders and anti wind advocates were so intent on getting any wind law that they would have gone along and allowed badly wind conflicted former town board members to vote on a wind law if it was close to what we wanted and conformed to what they considered a “good” result.

Yet some of us didn’t accept this and fought like hell against what appeared to be overwhelming odds to change this condition and in many way we did!!! I guess that would be in part the answer to Dave’s question as to what my end game is.

From our perspective now I think you can see what a terrible frightening idea that would have been, to allow these town officers to take control of our community with ANY vote no matter what it resulted in. This appeasement would have very likely left them still in power. You should not use and validate a terribly flawed and insidious and reckless system just because you think it will ultimately meet your ends or because everyone wants to go along with it…especially when the analysis is flawed that you are somehow retaining home rule, when clearly you aren’t. That is the case with our following of Art. X and trying to rationalize that if it comes out our way it is ok because we erroneously believe we have retained or reestablished Home Rule.
The previous go along thinking was badly flawed especially when you consider these same conflicted town board members later agreed to participate in the attempted illegal removal of certain citizens voting rights, and challenged the very essence of free speech by suing the bloggers or legal cameras from meetings!!! Yet at the time we would have allowed them to determine our community’s future with that badly flawed insidious condition…just like we are doing with participation I Art. 10…as long as we believe a final favorable decision will be an “acceptable thing” and preserve Home Rule, which it doesn’t! Home Rule that has already been taken away on this issue and doesn’t even exist…and even the State Constitution and Home Rule Laws legally say so, yet we are in a chase as if we can get it back with a final decision.

So what are my ends? Dave implies that my ends may be detrimental to the town’s and our cause. I doubt it can be any more detrimental than enabling a system that is so arbitrary, insidious, and piece meal and flies directly in the face of other NYS laws granting Home Rule and has removed our rights and even has many now believing the final decision determines if we have Home Rule when clearly we DON’T and State laws support my claim.

My ends are just like this post, that despite the town’s insistence to follow the insidious Art. X system I will protest to try to get the community to understand the possible implications of what we are doing, and because the “crowd” is going one way…one that I think is based on a false premise, does not convince me to support the town or be quiet. I believe that is still my democratic right. Some of us either spent money or gave moral support on defending the bloggers on free speech. It seems rather contrary to now ask someone to suppress there ideas because the crowd believes otherwise.

As a result of the insidious arbitrary and terrible policy wrapped up in Art. X and the extremely negative implications it has for our community and region and its power to remove our critical rights, I can not support the town’s decision to follow and enable it. nor will I simply choose to be quiet about it.