The answer to part II was.... To place a 100 sq. ft. solar array in the River Front Dist.
you would need a special use permit, and you would get the approval for that permit from the Zoning Board of Appeals. If the ZBA had questions or needed an advisory opinion, THEN they might involve the planning board.
This is something our current CV zoning officials couldn't seem to figure out!
Now here is another basic zoning test.
Look at the table below. It is Table 8 from our new CV zoning law. Note that a large ground based commercial solar array (SECS) of over 100 sq. ft. is not allowed in the River Front Dist. That is shown by the X in the appropriate box.
Now here is your test question.
How would you interpret the X in that box? The legend below Table 8 says the X in any box in this table means the use is NOT ALLOWED.
Do you think the X means maybe???? Or maybe if you get a site plan review, or special use permit? Or if the zoning officer and the chairman of the planning board say its OK ignore the literal X in the box, even though they have NO power or authority to make that interpretation?
Do you think the X is literal and really actually means NO??? Or does it only apply to people who don't have enough money and power to manipulate CV the zoning process.
Now if you are a widow of very modest means with a modest CV property with a son
with significant health challenges, a women who probably can't afford an expensive legal battle, then YOU have to take the law LITERALLY. No exceptions...you have to tow the line, in fact we might even deny your rights if it is convenient for us!!!
On the other hand if you have a lot of money, and can threaten to sue the town, and scare the crap out of the town govt...then that X that says NOT ALLOWED, can be a little more slippery or loosely interpreted especially in an election year. Then the entire law might not be taken literally if such an interpretation might cause politicians to squirm. Then that X can mean whatever the hell any CV official wants it to mean!
Now if you start down the zoning law is not literal road...then your law is actually meaningless. It will be meaningless for BP lawyers who can waltz in any say...
Hey WTF!!! You didn't apply your law literally for this person and their renewable project, then it is really unfair to make us strictly abide by all those wind development setbacks!!! That would mean you ARE NOT BEING REASONABLE!!!"
In fact if you run the X through the Hirschey govt zoning filter then it comes out the other end looking a lot like an OK...no problem!!!
So what do you think...is that X in the box that says a large commercial ground mounted solar array (SECS) is NOT ALLOWED in the RF Dist....is that what it REALLY means?????
Do you think those other things in our zoning that are actually very clear, like BP turbines have to be setback 2 miles from the waterfront...is that actually literal, or just a suggestion??? Keeping in mind BP is not a modest widow...they have A LOT OF MONEY!!!
Since you have already established that a decision on this particular application lies completely in the jurisdiction of the ZBA, not the ZEO, or the Planning Board, we should consider the answer from their perspective.
ReplyDeleteTheir principal function is to interpret the law and decide when and if to vary from it,along with issuing special Use permits.Their considerations are supposed to be guided by provisions in the law, which among others,include the following.
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c. Purpose of Review:
The primary purpose of Special Use Permit review is to assess the long-term impact of the proposed use on the area and the Town and to ensure compatibility of the use with the surrounding area and consistency with “A Joint Comprehensive Plan for the Village and Town of Cape Vincent.”
d. Special Use Permit Application Procedure:
e. Issuance:
The Zoning Board of Appeals shall approve a Special Use Permit if it determines the proposed use will satisfy the standards set forth herein. In approving a Special Use Permit, the Zoning Board of Appeals may require conditions of, and/or modifications to, the project. Such conditions must relate to the impact of the project.
f. Standards of Review:
The record of the Zoning Board of Appeals must address the standards outlined below and include the facts and reasons upon which such approval or denial was based:
1) The proposed use must not be more objectionable to nearby properties by reason of noise, odors, vibration, dust, illumination, or other potential nuisance than the operation of any allowed use in the particular district."
The last statement here seems to be the guiding principal. If a use is not allowed in a district, it can be logically deduced that it has qualities that make it objectionable to nearby properties or to the distict as a whole, otherwise why disallow it. Therefore it is by default more objectionable than any use that is allowed.
Following this logic,one would conclude that an application for a special use permit would have to be denied if it were for a use that is not allowed by the law. It would by reason of simple logic, require a use variance.
Incidentally, the recent description of a use variances as an addendum to the zoning law is simply wrong. A cursory research of the law today will reveal no such addendums, which according to planning board officials, become additions to the law.
Variances are pure and simply exceptions to the provisions of the law, not to be given lightly.
Good points!
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