And unless you do a little research you won't see what is going on!
So let’s look at a few revisions in the Cape Vincent zoning
law under the Zoning Board of Appeals
section.
In my opinion somebody is playing real fast and loose with
the zoning revisions with the powers of the planning board at a cost to the Zoning Board of Appeals.
And I’m betting it is just complex enough they are hoping
you the CV citizen won’t notice how the zoning power is being inappropriately concentrated,
and in my opinion in exactly the wrong hands.
Certain things in the new zoning are simply being left out
and not mentioned as a change. But it is real important, especially for the ZBA
who is being robbed of power!
What it basically comes down to is this govt concentrating
zoning power, and I believe it is a direct result of catching them in an
embarrassing zoning fiasco last summer. I hope you will take the time to read on and
understand what is going on because it is important!
Here is critical clause in CV zoning which is actually not a
revision but was a big bone of contention in the solar zoning fiasco.
“Powers and Duties:
"The Zoning Board of Appeals shall have all the powers and duties prescribed by Sections 267A and 267B of the
Town Law and by this Law.
a. Authority:
Hearing Appeals:
Unless otherwise provided by local law or ordinance, the
jurisdiction of the Board of Appeals shall be appellate only and shall be limited to
hearing and deciding appeals from
and reviewing any order, requirements, decision, interpretation, or
determination made by the administrative
official charged with the enforcement of any ordinance or local law adopted pursuant to this article.”
The point to remember here is that our law DOES grant the
ZBA with power beyond the appellate power of hearing and deciding appeals.
The CV ZBA also has what is called “original
jurisdiction” spelled out in the
CV zoning law and allowed from state statutes.
This means that in addition to appeals the CV ZBA has the power to approve “special use
permits”.
However, last summer I got into a debate with three PB members at the time, Mr. Cullen, Mr.
Macsherry, and Mr. Brown. They were
insistent that the CV ZBA was ONLY empowered with appellate power to hear
appeals and give variances.
But they were simply wrong!
In fact Mr. Brown
decided he would take part of the meeting to “educate” us on this matter…and he
STILL got it wrong! Of course you can
bet most of what he was doing in my opinion was covering his rear end trying to
smooth over the embarrassing zoning mess he and Macsherry and others created.
The CV ZBA has original jurisdiction power granted
specifically by the CV zoning law the three men above helped draft, but they still
didn’t get it. That is a little disturbing!
And this was at the heart of the solar zoning fiasco last summer…they
just didn’t understand their own law.
And looking at the zoning revisions headed by Brown, it
appears they still don’t really get it!
For example in the table of uses on page 12 of the zoning
you will see certain uses that require a special use permit (SU) now approved by the CV ZBA, NOT the planning board.
In CV zoning previous to 2012 this special use permit power
was with the planning board. But the
zoning was changed in 2012 and the power was granted to the ZBA. So with solar for example , if you want a
commercial solar project in the lake or river front districts you would now
need to apply for a special use permit from the ZBA.
Here is the language about the ZBA and special use permits
from a very good training document put out by NYS.
"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."
Our CV zoning law since 2012 DOES provide the ZBA with the
“original jurisdiction” power to approve special use permits. From the CV law:
"4) Special Use
Permit Application Procedure: A Special Use Permit review and approval shall be
undertaken by the Zoning Board of Appeals. "
Now that underlined part is pretty damn clear and straight
forward. You get a special use permit from the ZBA.
Yet last summer we have three of our zoning “experts” on the
PB caught up in their soar zoning mess saying the CV ZBA has only appellate
power.
Now comes the interesting part of the new revision, and it
comes directly out of the zoning mess I uncovered last summer.
Compare the clause about the ZBA and PB relationship from
the 2012 zoning law, and the new 2014 revision.
Something is conveniently missing!
The 2012 clause:
“d. Special Use Permit Application Procedure:
A Special Use Permit review and approval shall be undertaken by the
Zoning Board of Appeals. The Zoning Board of Appeals may seek an advisory opinion and site specific recommendations from
the Planning Board.”
Now the new wording from the 2014 revision draft:
"4) Special Use Permit Application Procedure:
A Special Use Permit review and approval shall be undertaken by the Zoning Board of
Appeals. The Zoning Board of Appeals approves a Special Use Permit
contingent
upon the approval of Site Plan Review by the Planning Board."
In my opinion this is Mr. Brown, the chair of the PB and
revision committee concentrating as much zoning power as possible to himself
and his board where it doesn’t belong. And
apparently he is STILL trying to cover for the solar zoning mess of last
summer.
Now re- read that clause about the relationship between the
PB and the ZBA and think hard on it for a minute. It is an absurd power grab which may not even
be in line with state statutes.
Who exactly has the
power to approve the special use permit in CV zoning? Is it the ZBA or the PB? The operative words are” may seek” in the
2012 law and “contingent upon” in the new revision.
In other words Brown has worded this revision such that even
though the ZBA has the “original jurisdiction” power of
approving special use permits, he has made sure that he and his PB can still out
right kill it.
He has essentially made sure the ZBA has been rendered powerless when it comes to special use permits.
And I doubt the rest of the revision committee had a clue what was happening
here.
In the 2012 law basically the ZBA can call on the PB for an “opinion”
if they feel like it, and could also ignore it if they feel like it. Too bad Mr. Brown! But the new revision forces the ZBA to have
to take the PB opinion. It’s an unwarranted
invasion of ZBA authority.
Somebody at the ZBA better pay attention to what is going on
before this revision gets passed. And
the Town Board better be paying attention too!!!
All this is left over trash from the solar zoning fiasco of
last summer and now it is trying to be forced into law.
But that is not all.
Something else is unusual. If you
look at some parts that were changed in the revisions from the 2012 law, where language
was removed it was shown, but struck out with a line through it. It allows the reader to see what was removed
then there is the yellow highlighted part to show the revision…but not in this
case.
In this case the old language that the ZBA “ may seek”
a PB opinion, that was changed to show the ZBA special use permit is “contingent
upon” the PB review…. was simply removed with no reference to it unless you
go back and compare the two laws yourself side by side. All you see in the revision in yellow is the
new language granting the PB a lot more power.
Very slick!
And if you want to see an additional amusing part to this,
look on the town website under govt and planning board. After nearly two years, and a major zoning
fiasco, and now having the zoning in revision, the website still lists the
approval of special use permits as the responsibility of the planning board,
when in fact CV zoning has shifted that power to the ZBA.
I do not like the zoning power so concentrated in one man’s
hands. Why? Well in this CV case let’s not forget we are
talking about a man who outright refused to take one CV citizen’s detailed input! That would be me.
And why? Simply because
he didn’t particularly like me! In my
opinion that was a very reckless and irresponsible action for any town official,
and an abuse of power. And here we have
the new zoning revision granting him and his PB even more power! Question is… how will he use this new power.
It s particularly disturbing to me to see so much zoning power
granted to a person who already demonstrated in last summer’s solar zoning
fiasco he apparently didn’t understand the very law he was instrumental in
writing, and created a huge zoning embarrassment to the town that even made media
headlines, and brought in the town supervisor to this zoning mess!!!
That was the very problem, that Brown and Macsherry created
in the solar zoning fiasco. The ZBA was completely
out of the loop on this solar zoning even though the special use
permit was the ZBA authority, not the planning board’s authority. Yet the PB was just moving right ahead without
the ZBA in direct defiance or ignorance of the new law. It is blatantly clear
the ZBA should have been the lead on the permit, not the PB with site plan
review!
The PB granted themselves much more zoning authority that
was justified. Actually it was a major and fundamental zoning screw up in
complete contradiction the very law they wrote!
Now it looks like Brown is trying to make this fiasco official
policy in law, and it should be stopped!!! And apparently the rest of the
zoning revision committee sat by apparently not knowing what is going on!
