I've been given twenty minutes to address the joint SB/PC meeting this evening so spent my time waiting for my car to be fixed this morning jotting down notes.
Twenty minutes is not enough time to discuss specific provisions of the proposed zoning regulations in any detail. Instead, I hope to take a step back and discuss the draft zoning regulations as a symptom of a much more serious problem with Norwich town government as a whole -- our planning and permitting process in particular.
These draft zoning regulations are the fruit of a land use governance regime which is fundamentally broken. It represents the cost in dozens upon dozens of volunteer hours devoured by a demonstrably failed approach we nevertheless perpetuate for lack of the imagination, the criticial perspective, and the political will to remedy.
Our current methods have yielded a Town Plan now eleven years without any meaningful updates or review. They've seen us run through nearly two dozen Planning Commission members in the past six years. They've delivered draft zoning regulations -- several times larger than their predecessor regulations in terms of verbiage -- produced by nine (now seven?) volunteers and professional staff working largely on their own. These zoning regulations now face the distinct possibility of rejection by the Selectboard for a number of reasons discussed here and elsewhere.
Who's to blame? Who cares? Our real problem is asset utilization. For years now we've squandered untold hours of volunteer time struggling to run everything planned and permitted through a nine-member Planning Commission. We've allowed our Planning Commission -- in it's many iterations over the past decade -- to become woefully overextended in terms of time and agendas. There's simply no way for a single nine-member commission to do everything we ask of them, let alone do those tasks well. This would be of little moment if it didn't directly impact -- negatively impact -- land owners here in town. The price of poorly conceived regulations; the expense in terms of time, money spent navigating the permitting process, and good will diminished -- plain to see to anyone who sits in on a few DRB hearings -- is unconscionable. All the more so as a viable alternative is explicitly contemplated in recent changes to Vermont's land use laws.
I'd like to talk about that alternative, how it might work here, and how we might go about putting it in place. If we're willing to take a new approach to planning and permitting here in Norwich, I'd recommend rejecting these draft regulations and remanding them for thorough revision consistent with this new approach. If we aren't willing to tackle the deeper issues here, then rejecting and remanding these regulations to the Planning Commission seems to me a cruel, pointless gesture. We might as well accept that these regulations are the best we're going to produce and pity the applicants, their neighbors, and the DRB members who must find there way through them until we get around to revising them another 15 years from now.
Tuesday, January 8, 2008
Sunday, January 6, 2008
The Marijuana Paradox and the Right to Sin
Windsor County State's Attorney Bobby Sand's Forum letter in today's Valley News is worth a ponder. Sand frames the decriminalization debate in terms few have acknowledged and effectively exposes the political motivations behind the hyperbole. It might also be read as a gracious gesture towards Governor Douglas who has been on his back heels over marijuana since the day he tried to make populist hay of Sand's prosecutorial discretion in the Martha Davis matter.
Sand's thesis is straightforward: Our national drug policy is a tremendous drain on law enforcement resources with very little to show for the effort. With marijuana use widespread, a significant minority of voters against criminalization, and thousands of lives disrupted by arrest and prosecution for marijuana possession, we need to reconsider our drug policy -- and marijuana laws in particular -- in a rational and dispassionate manner. Political ambition, expressed in the sanctimonious manner Jim Douglas exhibited this past autumn, does not help.
I would go a step further.
I've seen people I care about destroyed by illicit drugs -- even marijuana, which I would otherwise consider a less addictive substance. I've seen people I care about destroyed by alcohol abuse. I've seen the lives of people I care about shortened and weakened by addiction to tobacco. Having witnessed the price of addiction firsthand, I cannot say decriminalizing illicit intoxicants -- or greater access to licit ones -- is a good idea. But that's not the issue.
There are plenty of things Americans are allowed to do that aren't good ideas -- some which utterly repulse me. I don't think flag and cross burning are a good idea, but I accept that those too close-minded to recognize the deep insult of their actions have the constitutional right to make fools of themselves. The pornography industry is huge in this country, deemed an exercise in free speech protected by our First Amendment. The idea of watching other people have sex doesn't do it for me, but I accept that millions of Americans will pay good money for the vicarious thrill. I don't think pornography is a good thing for the actors or the audience, but that's not the issue.
The issue is one of individual liberty and the extent to which our laws may limit individual liberty for the benefit of society as a whole. The issue is our right to sin.
Take tobacco for instance. Unlike alcohol -- an illicit drug in this nation for a decade -- tobacco has never faced a complete legal prohibition. While there are likely some beneficial characteristics to tobacco consumption, there's really no question smoking and chewing tobacco regularly has a serious, progressive, negative impact on the health of the user. By law, we've prohibited the sale and use of tobacco by minors on the principle that minors do not have the mature capacity to choose what's best for themselves. By law, we've recently prohibited smoking in indoor public spaces on the principle that workers employed in those spaces aren't truly free to avoid the secondhand smoke. Compared to the outright prohibition on alcohol in the 1920's and on marijuana today, these are relatively nuanced measures to balance public health concerns with individual liberty -- not unlike the balance we've struggled to maintain with regard to free speech.
Can we find a similarly nuanced approach to marijuana and other illicit intoxicants? Can we recognize the individual's right to be intoxicated balanced against society's right to be protected from secondhand injury due to that individual's indulgence? I cannot imagine why not. But that question -- the proper balance between an individual's right to sin and society's right to be protected from injury -- isn't even on the table for discussion.
Why do we recognize and protect the rights of the pornographer, the drinker, and the tobacco smoker, but deny adults the right to mistreat their bodies using other intoxicants? Certainly, the pornography, tobacco, and alcohol industries are now so well entrenched financially that they can mount an effective defense against legislation seeking outright prohibition. But that can't be the whole answer, as social mores regarding alcohol, tobacco and pornography have shifted substantially over the decades; alcohol and tobacco treated more stringently since the 1960's and pornography actually finding wider acceptance within the mainstream.
Ultimately, it may simply be a matter of majority rule. A lot of people like the intoxication of alcohol and nicotine. A lot of people like watching other people have sex. Not enough people like the intoxication of marijuana, methamphetamine, or opiates to tip the political scales against prohibition?
Unfortunately, the cost to this minority -- their families and neighbors -- is horrific. By driving the market for these intoxicants underground, we've abandoned millions of people to a criminal underworld which mocks the law-and-order sanctimony of our politicians. Selectively denied their right to sin -- their addictions arbitrarily criminalized -- we feed a cycle of property crime, prostitution, and exploitation which our prisons and police are finding increasingly difficult to contain. It is politically expedient to sweep the mess under the rug, but the cost in terms of individual lives and innocent bystanders is immense.
Political expediency and majority rule can and do perpetuate terrible injustice at times. Our founders understood this and sought to enshrine the supremacy of individual rights in our Constitution. This did not prevent the perpetuation of slavery, racial segregation, the disenfranchisement of women, or Prohibition, but it was instrumental in the eventual remedy of each over time.
As a society, we need to insist upon our right to sin. Since our founding, we have recognized an adult's right to sin by decriminalizing divorce, contraception, engaging in homosexual acts, and gambling -- to the chagrin of many. This right to sin is not a monolithic trump to reason. The right to sin with tobacco, alcohol, and XXX videos is not without counterbalancing restrictions for the protection of broader society. Drunk driving, secondhand smoke and child exploitation for sexual gratification are legitimate dangers to others and thus legitimate bases for regulation. Despite the distaste many may feel, it is time to confront the implications of recognizing an adult's right to sin with a broad range of illicit intoxicants, not least marijuana.
Our forty year experience with this "War on Drugs" raises legitimate and difficult questions regarding the war itself. As we've learned, sometimes we lose wars because we were mistaken about the enemy. We talk about this "war" in terms of foreign narco-terrorists and drug cartels, but we've actually been fighting a war against the desire of millions of Americans to intoxicate themselves. Who are we, as a nation, to deny individual citizens this right so long as they exercise it without harming others? Who are we, as a people, to consign fellow citizens to a criminal underworld entirely of our own legislation? The impulse to control society for our perception of the "greater good" has within it the seeds of tyranny. Our insistence upon the rights of individuals -- enshrined within our Constitution -- forces us to question our own provinciality regarding what we believe to be the greater good. We err badly pursuing wars founded, not upon our defense of individual liberties, but rather upon our own sense of righteousness. We're going to lose this war, even if we win.
Sand's thesis is straightforward: Our national drug policy is a tremendous drain on law enforcement resources with very little to show for the effort. With marijuana use widespread, a significant minority of voters against criminalization, and thousands of lives disrupted by arrest and prosecution for marijuana possession, we need to reconsider our drug policy -- and marijuana laws in particular -- in a rational and dispassionate manner. Political ambition, expressed in the sanctimonious manner Jim Douglas exhibited this past autumn, does not help.
I would go a step further.
I've seen people I care about destroyed by illicit drugs -- even marijuana, which I would otherwise consider a less addictive substance. I've seen people I care about destroyed by alcohol abuse. I've seen the lives of people I care about shortened and weakened by addiction to tobacco. Having witnessed the price of addiction firsthand, I cannot say decriminalizing illicit intoxicants -- or greater access to licit ones -- is a good idea. But that's not the issue.
There are plenty of things Americans are allowed to do that aren't good ideas -- some which utterly repulse me. I don't think flag and cross burning are a good idea, but I accept that those too close-minded to recognize the deep insult of their actions have the constitutional right to make fools of themselves. The pornography industry is huge in this country, deemed an exercise in free speech protected by our First Amendment. The idea of watching other people have sex doesn't do it for me, but I accept that millions of Americans will pay good money for the vicarious thrill. I don't think pornography is a good thing for the actors or the audience, but that's not the issue.
The issue is one of individual liberty and the extent to which our laws may limit individual liberty for the benefit of society as a whole. The issue is our right to sin.
Take tobacco for instance. Unlike alcohol -- an illicit drug in this nation for a decade -- tobacco has never faced a complete legal prohibition. While there are likely some beneficial characteristics to tobacco consumption, there's really no question smoking and chewing tobacco regularly has a serious, progressive, negative impact on the health of the user. By law, we've prohibited the sale and use of tobacco by minors on the principle that minors do not have the mature capacity to choose what's best for themselves. By law, we've recently prohibited smoking in indoor public spaces on the principle that workers employed in those spaces aren't truly free to avoid the secondhand smoke. Compared to the outright prohibition on alcohol in the 1920's and on marijuana today, these are relatively nuanced measures to balance public health concerns with individual liberty -- not unlike the balance we've struggled to maintain with regard to free speech.
Can we find a similarly nuanced approach to marijuana and other illicit intoxicants? Can we recognize the individual's right to be intoxicated balanced against society's right to be protected from secondhand injury due to that individual's indulgence? I cannot imagine why not. But that question -- the proper balance between an individual's right to sin and society's right to be protected from injury -- isn't even on the table for discussion.
Why do we recognize and protect the rights of the pornographer, the drinker, and the tobacco smoker, but deny adults the right to mistreat their bodies using other intoxicants? Certainly, the pornography, tobacco, and alcohol industries are now so well entrenched financially that they can mount an effective defense against legislation seeking outright prohibition. But that can't be the whole answer, as social mores regarding alcohol, tobacco and pornography have shifted substantially over the decades; alcohol and tobacco treated more stringently since the 1960's and pornography actually finding wider acceptance within the mainstream.
Ultimately, it may simply be a matter of majority rule. A lot of people like the intoxication of alcohol and nicotine. A lot of people like watching other people have sex. Not enough people like the intoxication of marijuana, methamphetamine, or opiates to tip the political scales against prohibition?
Unfortunately, the cost to this minority -- their families and neighbors -- is horrific. By driving the market for these intoxicants underground, we've abandoned millions of people to a criminal underworld which mocks the law-and-order sanctimony of our politicians. Selectively denied their right to sin -- their addictions arbitrarily criminalized -- we feed a cycle of property crime, prostitution, and exploitation which our prisons and police are finding increasingly difficult to contain. It is politically expedient to sweep the mess under the rug, but the cost in terms of individual lives and innocent bystanders is immense.
Political expediency and majority rule can and do perpetuate terrible injustice at times. Our founders understood this and sought to enshrine the supremacy of individual rights in our Constitution. This did not prevent the perpetuation of slavery, racial segregation, the disenfranchisement of women, or Prohibition, but it was instrumental in the eventual remedy of each over time.
As a society, we need to insist upon our right to sin. Since our founding, we have recognized an adult's right to sin by decriminalizing divorce, contraception, engaging in homosexual acts, and gambling -- to the chagrin of many. This right to sin is not a monolithic trump to reason. The right to sin with tobacco, alcohol, and XXX videos is not without counterbalancing restrictions for the protection of broader society. Drunk driving, secondhand smoke and child exploitation for sexual gratification are legitimate dangers to others and thus legitimate bases for regulation. Despite the distaste many may feel, it is time to confront the implications of recognizing an adult's right to sin with a broad range of illicit intoxicants, not least marijuana.
Our forty year experience with this "War on Drugs" raises legitimate and difficult questions regarding the war itself. As we've learned, sometimes we lose wars because we were mistaken about the enemy. We talk about this "war" in terms of foreign narco-terrorists and drug cartels, but we've actually been fighting a war against the desire of millions of Americans to intoxicate themselves. Who are we, as a nation, to deny individual citizens this right so long as they exercise it without harming others? Who are we, as a people, to consign fellow citizens to a criminal underworld entirely of our own legislation? The impulse to control society for our perception of the "greater good" has within it the seeds of tyranny. Our insistence upon the rights of individuals -- enshrined within our Constitution -- forces us to question our own provinciality regarding what we believe to be the greater good. We err badly pursuing wars founded, not upon our defense of individual liberties, but rather upon our own sense of righteousness. We're going to lose this war, even if we win.
Saturday, January 5, 2008
(LONG) Open Letter to SB/PC re: Tuesday, January 8th @ 6:30pm
To the Norwich Selectboard:
I am writing to express my strong opposition to the proposed Norwich Zoning Regulations currently before you and to ask the Selectboard to reject these proposed regulations at this time for further comprehensive revisions.
I take no pleasure in criticizing the work of a number of well-intentioned and hard-working volunteers in developing these draft regulations, but feel there's really no alternative to outright rejection at this point. While this letter may seem late in the game for the Selectboard, it is consistent with detailed comments I have provided the Planning Commission at their meetings, at public forums conducted to receive comment on these drafts, and by direct correspondence dating back even to the late 1990's. I have attached a PDF copy of one such letter written in response to the Planning Commission's February 2007 draft which I feel remains relevant to the draft now before you. (PDF available by request)
Where to begin? Three basic points:
1) The size and scope of these proposed regulations far outstrip our ability to meaningfully review proposed developments and to meaningfully enforce these regulations throughout the development process.
A simple example: Deer Wintering Areas. (NZR Draft 3.13 (B)(3))
According to 3.13, the impact of proposed development on the enumerated features shall be determined by the Development Review Board and development shall conform to the criteria of those regulations.
Specifically, Section 3.13(3) states that, "Development shall be located and configured to minimize adverse impacts on critical wildlife habitat, including travel corridors, deer wintering areas and natural areas identified in the Norwich Town Plan, by the Vermont Department of Fish & Wildlife, the Vermont Agency of Natural Resources, or through site investigation."
The section further states that development may be excluded from such habitat and a buffer area of adequate size shall be established to protect such habitat.
In theory, this all sounds fine. In practice, it's largely meaningless.
Huge swathes of Norwich are identified by the Vermont Department of Fish & Wildlife as deer wintering habitat and travel corridors between such habitat. Those maps are of some vintage and make no effort to identify variable levels of criticality. At DRB hearings where this criterion has been reviewed, testimony tends towards whether a neighbor has seen deer in the vicinity, hunters visit the area, and if anyone saw dropping during the site visit. There are currently no resources utilized by the town to assess relative criticality of habitat and land owners are left to the whims of the hearing whether their chosen house site or subdivision line will be found to impose more than minimized adverse impacts. Recognizing the capricious nature of the regulation in practice, the DRB is rightfully hesitant to give it any teeth.
To effectively regulate adverse impact upon deer wintering areas and related critical habitat, the town needs more detailed and transparent identification of the areas affected. This would allow land owners to plan ahead regarding house location and subdivision design. It would allow the Zoning Administrator to more meaningfully assist the land owner in the application development process by being able to point to regulations which are objectively comprehensible and enforced. It would allow neighbors and concerned conservation entities to meaningfully engage in the DRB review. Finally, it would allow the DRB to apply the existing regulations with more confidence in the fairness of the review process and the defensibility of the decision itself upon judicial review.
We don't have those maps today. To my knowledge, we don't have any specific plan to develop those resources at this time. So my question remains: Why regulate something we can't regulate well? Why burden land owners, their neighbors, DRB volunteers, our Zoning Administrator, and the town's legal resources on broad stroke regulations of this type? Don't regulate what you can't regulate effectively. While I've used deer wintering areas as an example here, there are many others throughout these regulations. The scope and size of these proposed regulations reflect our authority to regulate development under state law rather than our ability to meaningfully regulate a subset of factors specifically important to our community.
2) These proposed regulations burden land owners with voluminous restrictions and advice which are, in most cases, unenforceable due to vagueness, poor conception, or inconsistent application.
Example: Scenic Resources and the Norwich Gateway.
No one, at any level of the litigation concerning the Simpson project, disputed whether the January 2000 Inventory of Scenic Resources specifically identified the subject property as a scenic resource. To my knowledge, no one (other than our Zoning Administrator) questioned whether the Inventory of Scenic Resources was a legitimate legal basis to regulate development on that parcel. Nevertheless, in practice, the Inventory and applicable provisions in the subdivision regulations were deemed too vague to enforce. Upon appeal, the determination of what constituted an adverse impact to a scenic resource came down to a subjective judgment whether the lot in question was sufficiently scenic to warrant restricting development and whether the regulations were sufficiently specific to support a permit denial. The court concluded they were not and the DRB would be well-advised to finesse future fragile feature determinations so they are not the primary basis for a permit denial. Despite this, the proposed zoning regulations adopt the same mandatory language which has already proven effectively unenforceable under our subdivisions regulations.
Again, don't regulate what you can't regulate effectively. Why extend the fragile features criteria to our zoning regulations when they are so problematic in our experience under our subdivision regulations? Why put land owners through a series of hoops which are likely unenforceable, at least against those applicants with the means to mount an appeal?
If the town wants to preserve scenic resources, don't saddle land owners and DRB volunteers with these criteria. Entrust the Inventory of Scenic Resources to our Conservation Commission to prioritize these resources in a series of public hearings. Use that priority list to pursue conservation easements on those resources of highest priority. Don't impose a broad-stroke list of regulatory criteria on individual land owners -- potentially impacting the value of what to many is their largest single investment -- without taking the time to meaningfully differentiate between what the community would like to see conserved and what the community is actually willing to step forward and conserve.
3) These proposed regulations reflect a promulgation process which poorly utilizes town resources, burning out volunteers, and repeating a pattern of planning projects which collapse at the finish line rather than sustain a thoughtful and effective planning regime.
Examples: Town Plan, Zoning and Subdivision Regulation revisions, Inventory of Scenic Resources, etc.
Vermont state law is blessed with an enlightened attitude towards land use regulation which values local democratic participation in developing regulations above any centralized planning bureaucracy. In practice, I feel we, as a town, have made very poor use of our authority.
Why is it up to the Planning Commission alone to draft, research, and review proposed regulations and planning initiatives? Certainly, state law entrusts our Planning Commission with the authority to do so, but that doesn't mean the Planning Commission has to do it alone. We need the political and administrative leadership to reorganize our planning efforts to delegate far more research and drafting to existing and ad hoc committees which can utilize and develop specific expertise on discreet projects. Final policy determinations and regulatory language would remain the responsibility of the Planning Commission, but the development of policy and regulations would benefit from broader input.
Recent revisions to Chapter 117 clearly envision a more collaborative, less confrontational structure for both planning and permitting through the use of advisory commissions. The Bradley Hill Road controversy of a few years back illustrates this point well. A land owner sought to develop a parcel and access that parcel by improving what was effectively a hiking trail for automobile use. Neighbors objected. The Planning Commission and Selectboard were dragged into the fray. The controversy became a matter of litigation and a political rallying cry for libertarian land-owner rights folks on one side and communitarian trail/hiking/recreational rights folks on the other. In an attempt to avoid further such controversies a town committee was created to review all Class 4 roads in town and recommend candidates for trail designation. The committee was responsive to both libertarian and communitarian views and, in their work together, a more balanced and collaborative outlook on the issue emerged as everyone came to recognize a one-size-fits-all regulatory approach did not reflect the values of the community.
We are a community entrusted with the legal authority to limit what individual land owners can do with our land. We should exercise that authority sparingly and in a manner which draws broadly from the community to come up with solutions which suit us as a community. These 135 pages reflect the bureaucratic default which occurs when a single committee of volunteers are overextended, harried politically, suffer 100% attrition over a matter of a couple years, and plow on so they can get to the next item on their inexorably growing agenda. No number of public hearings asking townspeople to absorb 135 pages of regulatory language can make this document reflective of the community.
I am confident the Planning Commission has done the best they can under trying circumstances. I am simply saying it's time to address the circumstances. Let's take a step back and recognize the practical effect these regulations will have on land owners, their neighbors, DRB members, and, ultimately, the community. Let's develop a planning structure which addresses individual policy and regulatory goals in a deliberate and effective manner rather than seek to reinvent the wheel through omnibus decennial rewrites of our Town Plan and regulations. No volunteer-based Planning Commission can do that alone. It's time to exercise the political will and leadership to admit we're off track and put our minds to developing a solution which serves the community and its land owners.
I am writing to express my strong opposition to the proposed Norwich Zoning Regulations currently before you and to ask the Selectboard to reject these proposed regulations at this time for further comprehensive revisions.
I take no pleasure in criticizing the work of a number of well-intentioned and hard-working volunteers in developing these draft regulations, but feel there's really no alternative to outright rejection at this point. While this letter may seem late in the game for the Selectboard, it is consistent with detailed comments I have provided the Planning Commission at their meetings, at public forums conducted to receive comment on these drafts, and by direct correspondence dating back even to the late 1990's. I have attached a PDF copy of one such letter written in response to the Planning Commission's February 2007 draft which I feel remains relevant to the draft now before you. (PDF available by request)
Where to begin? Three basic points:
1) The size and scope of these proposed regulations far outstrip our ability to meaningfully review proposed developments and to meaningfully enforce these regulations throughout the development process.
A simple example: Deer Wintering Areas. (NZR Draft 3.13 (B)(3))
According to 3.13, the impact of proposed development on the enumerated features shall be determined by the Development Review Board and development shall conform to the criteria of those regulations.
Specifically, Section 3.13(3) states that, "Development shall be located and configured to minimize adverse impacts on critical wildlife habitat, including travel corridors, deer wintering areas and natural areas identified in the Norwich Town Plan, by the Vermont Department of Fish & Wildlife, the Vermont Agency of Natural Resources, or through site investigation."
The section further states that development may be excluded from such habitat and a buffer area of adequate size shall be established to protect such habitat.
In theory, this all sounds fine. In practice, it's largely meaningless.
Huge swathes of Norwich are identified by the Vermont Department of Fish & Wildlife as deer wintering habitat and travel corridors between such habitat. Those maps are of some vintage and make no effort to identify variable levels of criticality. At DRB hearings where this criterion has been reviewed, testimony tends towards whether a neighbor has seen deer in the vicinity, hunters visit the area, and if anyone saw dropping during the site visit. There are currently no resources utilized by the town to assess relative criticality of habitat and land owners are left to the whims of the hearing whether their chosen house site or subdivision line will be found to impose more than minimized adverse impacts. Recognizing the capricious nature of the regulation in practice, the DRB is rightfully hesitant to give it any teeth.
To effectively regulate adverse impact upon deer wintering areas and related critical habitat, the town needs more detailed and transparent identification of the areas affected. This would allow land owners to plan ahead regarding house location and subdivision design. It would allow the Zoning Administrator to more meaningfully assist the land owner in the application development process by being able to point to regulations which are objectively comprehensible and enforced. It would allow neighbors and concerned conservation entities to meaningfully engage in the DRB review. Finally, it would allow the DRB to apply the existing regulations with more confidence in the fairness of the review process and the defensibility of the decision itself upon judicial review.
We don't have those maps today. To my knowledge, we don't have any specific plan to develop those resources at this time. So my question remains: Why regulate something we can't regulate well? Why burden land owners, their neighbors, DRB volunteers, our Zoning Administrator, and the town's legal resources on broad stroke regulations of this type? Don't regulate what you can't regulate effectively. While I've used deer wintering areas as an example here, there are many others throughout these regulations. The scope and size of these proposed regulations reflect our authority to regulate development under state law rather than our ability to meaningfully regulate a subset of factors specifically important to our community.
2) These proposed regulations burden land owners with voluminous restrictions and advice which are, in most cases, unenforceable due to vagueness, poor conception, or inconsistent application.
Example: Scenic Resources and the Norwich Gateway.
No one, at any level of the litigation concerning the Simpson project, disputed whether the January 2000 Inventory of Scenic Resources specifically identified the subject property as a scenic resource. To my knowledge, no one (other than our Zoning Administrator) questioned whether the Inventory of Scenic Resources was a legitimate legal basis to regulate development on that parcel. Nevertheless, in practice, the Inventory and applicable provisions in the subdivision regulations were deemed too vague to enforce. Upon appeal, the determination of what constituted an adverse impact to a scenic resource came down to a subjective judgment whether the lot in question was sufficiently scenic to warrant restricting development and whether the regulations were sufficiently specific to support a permit denial. The court concluded they were not and the DRB would be well-advised to finesse future fragile feature determinations so they are not the primary basis for a permit denial. Despite this, the proposed zoning regulations adopt the same mandatory language which has already proven effectively unenforceable under our subdivisions regulations.
Again, don't regulate what you can't regulate effectively. Why extend the fragile features criteria to our zoning regulations when they are so problematic in our experience under our subdivision regulations? Why put land owners through a series of hoops which are likely unenforceable, at least against those applicants with the means to mount an appeal?
If the town wants to preserve scenic resources, don't saddle land owners and DRB volunteers with these criteria. Entrust the Inventory of Scenic Resources to our Conservation Commission to prioritize these resources in a series of public hearings. Use that priority list to pursue conservation easements on those resources of highest priority. Don't impose a broad-stroke list of regulatory criteria on individual land owners -- potentially impacting the value of what to many is their largest single investment -- without taking the time to meaningfully differentiate between what the community would like to see conserved and what the community is actually willing to step forward and conserve.
3) These proposed regulations reflect a promulgation process which poorly utilizes town resources, burning out volunteers, and repeating a pattern of planning projects which collapse at the finish line rather than sustain a thoughtful and effective planning regime.
Examples: Town Plan, Zoning and Subdivision Regulation revisions, Inventory of Scenic Resources, etc.
Vermont state law is blessed with an enlightened attitude towards land use regulation which values local democratic participation in developing regulations above any centralized planning bureaucracy. In practice, I feel we, as a town, have made very poor use of our authority.
Why is it up to the Planning Commission alone to draft, research, and review proposed regulations and planning initiatives? Certainly, state law entrusts our Planning Commission with the authority to do so, but that doesn't mean the Planning Commission has to do it alone. We need the political and administrative leadership to reorganize our planning efforts to delegate far more research and drafting to existing and ad hoc committees which can utilize and develop specific expertise on discreet projects. Final policy determinations and regulatory language would remain the responsibility of the Planning Commission, but the development of policy and regulations would benefit from broader input.
Recent revisions to Chapter 117 clearly envision a more collaborative, less confrontational structure for both planning and permitting through the use of advisory commissions. The Bradley Hill Road controversy of a few years back illustrates this point well. A land owner sought to develop a parcel and access that parcel by improving what was effectively a hiking trail for automobile use. Neighbors objected. The Planning Commission and Selectboard were dragged into the fray. The controversy became a matter of litigation and a political rallying cry for libertarian land-owner rights folks on one side and communitarian trail/hiking/recreational rights folks on the other. In an attempt to avoid further such controversies a town committee was created to review all Class 4 roads in town and recommend candidates for trail designation. The committee was responsive to both libertarian and communitarian views and, in their work together, a more balanced and collaborative outlook on the issue emerged as everyone came to recognize a one-size-fits-all regulatory approach did not reflect the values of the community.
We are a community entrusted with the legal authority to limit what individual land owners can do with our land. We should exercise that authority sparingly and in a manner which draws broadly from the community to come up with solutions which suit us as a community. These 135 pages reflect the bureaucratic default which occurs when a single committee of volunteers are overextended, harried politically, suffer 100% attrition over a matter of a couple years, and plow on so they can get to the next item on their inexorably growing agenda. No number of public hearings asking townspeople to absorb 135 pages of regulatory language can make this document reflective of the community.
I am confident the Planning Commission has done the best they can under trying circumstances. I am simply saying it's time to address the circumstances. Let's take a step back and recognize the practical effect these regulations will have on land owners, their neighbors, DRB members, and, ultimately, the community. Let's develop a planning structure which addresses individual policy and regulatory goals in a deliberate and effective manner rather than seek to reinvent the wheel through omnibus decennial rewrites of our Town Plan and regulations. No volunteer-based Planning Commission can do that alone. It's time to exercise the political will and leadership to admit we're off track and put our minds to developing a solution which serves the community and its land owners.
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