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Sunday, September 25, 2011

Prohibited unless Permitted, continued

Unless you are a town official
By Will Collette

Beth Richardson asked the Progressive Charlestown team of expert researchers to try to figure out the legal basis for Charlestown Planning Commissar Ruth Platner's "Platner Principle" that all uses you might have for your land or property are prohibited unless they are expressly permitted under our Code of Ordinances and Zoning Code.

I found one section in the Code of Ordinances that might, if read by someone with Napoleonic tendencies, be stretched that far (read here). But I kept looking.

I asked Town Moderator Henry Walsh to search his encyclopedic memory of things that have happened in this town for when and how this concept of town supremacy over all its people came to be. And I asked Town Administrator William DiLibero, who is also an attorney, for the legal basis.

Here’s what they told me.

Henry told me that he remembers that it came up in the Town Council roughly 30 years ago when a Council member was in a dispute with an old enemy. The concept of “you can’t do that with your land unless the town gives you permission” grew out of a grudge fight.

I asked Henry how this “policy” had been applied over the years. He told me it would be brought out from time to time when a Council member wanted to stick it to an enemy. (I'll let you all know if a Council member wants to come after me.)

I asked if this sort of selective enforcement had ever been challenged in court. Henry chuckled and said “No, of course not.”

Mr. DiLibero was also willing to speak to the concept, though not as colorfully as Henry. This is from his e-mail to me:

The Zoning Ordinance has a Use Table with a list of uses and columns that detail the zone and under each zone whether the use is allowed by right, allowed with a variance, allowed with a special use permit, or not allowed. By default, if a use is not included in a "Use Table," it is not an allowable use. 

Of course this has created problems because in many communities these use tables have not been updated. Your Use Table may have meat rendering or shoe manufacturing allowed in an industrial zone, but it may not include cell towers.  Under a situation like this, there would be Federal Communication laws that supersede local zoning ordinances so a town would have to create some provisions for a cell tower or be faced with permitting them without any specific requirements.

I asked Mr. DiLibero to amplify his answer regarding residential property uses, since that’s where the current argument over wind power is focused – and it is also the area where there is the greatest potential for abusive selective enforcement (as Henry Walsh illustrated in his historical rendering of the issue).

DiLibero responded: 

I have attached the use table. If you look at it you can see there are many categories that a blank. Those blanks signify not allowed.  I would suggest that you speak with Joe Warner for more clarification. 

Being the dense person I am, I pressed for more clarification, noting that there are a host of potential land and property uses that are not mentioned – either to permit or prohibit – in the Code and Zoning Table. Example: EVERY form of alternative energy, including solar panels plus the long, long list of things that aren’t mentioned in the Code that I included in an earlier article.

DiLibero gave me this very patient response:

Will, you are correct, often new technologies are not in a Zoning Ordinance. As a result, they are not allowed.  This is true of alternative technologies, or cell towers, as I previously mentioned. So there is no provision for a group home, but there is one for a candy store (even though nowhere in Town is a candy store allowed).

So that very long list of land and property uses I wrote about HERE really are prohibited. Verboten. Proibito. Proíbido. Prohibido. Kielletty. 禁止  Interdit. Pratibandhit.

But I believe Henry Walsh was totally correct – the amazingly broad power of the town to interfere with landowners’ use of their property is applied very selectively, usually when a powerful member of the town government has an axe to grind.

That is the case with wind energy, where Planning Commissar Platner and Town Council Vice-President (and former CCA President) Dan Slattery seem to have decided that wind power is a tool of Satan and must be banished from Charlestown.

On the other hand, Council members seem to love solar power – which is also forbidden.

At the most recent Council meeting, the Councilors even promoted potential energy subsidies for residential solar panels – even though they are prohibited.

But if someone decided to actually enforce the town’s prohibition on solar panels, here’s one place they would need to start:

This is the official town photo of Council President (and present CCA Secretary) Tom Gentz’s house at 152 Sea Breeze. Note the solar panels on his roof (they look like passive solar – used to heat water - less expensive than the photovoltaic variety). During the 2010 campaign, Mr. Gentz’s campaign biography on the CCA website prominently noted that he had installed the panels. CCA web mistress Ruth Platner has since purged that page (and the bios of the other CCA candidates) from the CCA website.

Why is Tom Gentz allowed to deploy a “prohibited” use on his property? When is the town going to bust him for it?

The town’s disturbing and grossly intrusive Platner Policy that “all is prohibited unless it is permitted” is made even more unfair through selective enforcement. The policy and practice is so unfair, it practically screams out for a lawsuit.

Personally, I think it is long past the time when this town needs to reverse the policy – no longer should it be “prohibited unless permitted,” but rather “permitted unless prohibited.”

My colleague Tom Ferrio suggested the town adopt a law about its ordinances that would “sunset” any ordinance where no demonstrable or effective enforcement has happened over two years. Under such a policy, the town’s tree ordinance and accessory dwelling unit ordinance would become void soon. I would love to see an amendment to the town charter that would prohibit adding any new land use ordinance that does not contain an effective, practical enforcement mechanism.

Regulations that are pointless, unenforceable or are only selectively enforced are an insult to the people and only make people more distrustful of government.

Before the town can tell a property owner what to do with their land and home, there should be a deliberate and open process to establish why it is necessary to create a law to ban a land or property use. Otherwise, the residents of Charlestown are forced to play Ruth Platner’s cynical game of “Ruthie Says.”