New Petition part 2

[oldetowne]

I have heard that the petition to allow the town council to exempt all town property from the requirements of zoning has been given to the Town Clerk and that it may be ready for the council to act on it next week. This issue is one that has real ramifications for everyone and should be given a lot more scrutiny than it has so far.

[Dr.Ken Sokolowski]

So that everyone knows what we are talking about, here is the exact wording of the petition of which oldetowne speaks:

Pursuant to Section 312 of the Charter of the Town of Wethersfield, the undersigned qualified electors of said Town of Wethersfield, petition the Town Council to adopt the following ordinance:

Pursuant to Connecticut General Statutes $8-2, municipal property shall be excempt from regulations prescribed by the Planning and Zoning Commission. Notwithstanding this exemption, the Town shall voluntarily adhere to regulations of the Planning and Zoning Commission unless the Town Council determines, after a public hearing, that it is in the best interest of the Town for a specific purpose not to adhere to a regulation that conflicts with that purpose. "

[standish]

I verified with the Town Clerk's office that these petitions are being received in anticipation of their verification in time for presentation at Monday's Council meeting. There are currently insufficient signatures, but, that will likely change in time for the meeting.

I wholeheartedly agree with OldTowne that the long-term ramifications of such a petition are of far greater significance than its short-term goal of circumventing boards/commissions for the proposed lights on Cottone Field. Nor is the latter a fair and reasonable way to approach even that issue. Furthermore, do we want to grant future Councils the ability to stick anything they want, or do anything they want to do, to, or on, any town property? I think not.

We can assume that the proponents of this myopic lunacy will be out in force at future Council meetings. Perhaps some level-headed folks should plan to attend and/or call Council people? The process of checks and balances should far supersede any immediate desire to move forward with a single issue, not matter what your position on that issue.

[Dr.Ken Sokolowski]

standish wrote:

...I wholeheartedly agree with OldTowne that the long-term ramifications of such a petition are of far greater significance than its short-term goal of circumventing boards/commissions for the proposed lights on Cottone Field. .....myopic lunacy...

I agree with both oldetowne and standish who characterize this "new" petition as indeed having very, very significant ramifications - the potential for good and the potential for bad - since this will politicize zoning matters in town more than ever before.

However, I do not want to call this 'myoptic lunacy'.

Welcome to a course: Wethersfield Advanced Politics 301. This is definitely not for beginners.

You have to admit that there is a group of highly motivated people who want something and through the legal process (the American way) have perhaps found a way to achieve what they want. I give them credit for this, just as I give the WTXA credit for attempting to achieve what they feel is the best for the town.

Does the public understand what is going on? Maybe yes, maybe no. If they don't. both "sides" will have to educate the public so that when polling/voting time comes, the public will have a reasonable chance to make an informed decision, one way or another.

America - I love it! This is what homeland security is really for - protecting our way of life on our turf.

[tomterific]

It would seem to this citizen that there are gigantic ramifications to this petition. This would in-effect over-ride Planning and Zoning. I want an impartial competent attorney to present us with all those ramifications. The Town Attorney would be the logical choice, but his conduct last year on the artificial surface - lights petition disqualifies him. The town govt. seems to run the risk of really putting something unconstituional up for referendum.

[oldetowne]

The proposed ordinance would permit nearly anything to be done on any town property without an application or review by P&Z. The town council may choose to do so, but is under no obligation to follow that commission's recommendations. A blank check, shall we say.

And the scariest part for me is this - if its sole purpose is to get lights on Cottone Field, and that purpose is accomplished, the Council cannot repeal the ordinance and go back the current system. Under the charter, that may only be done by a referendum. It's the gift that keeps on giving... like syphillis.

[standish]

Dear Doctor,
Please don't be so pedantic. Part of the process in the first place is polemics. Unfortunately, both petition goals were flawed in the same fashion: each would have imposed far-reaching, adverse consequences beyond their intent... one to defeat the lights and the other to promote them. The first would have imposed a limitation on all lights all over town for an indefinite time. The other would impose a truncated process available to Council for any controversial issue on their agenda.

[standish]

FootDoc.Weth said:

standish wrote:

However, I do not want to call this 'myoptic lunacy'.


By the way, if you choose to quote me, please do so without any additional spelling errors... I have enough difficulty on my own without distortions like "myoptic" (a form of personal vision?) vs. "myopic": my·op·ic adj
1. affected by myopia
2. showing a lack of foresight or long-term planning

Encarta® World English Dictionary © 1999 Microsoft Corporation. All rights reserved. Developed for Microsoft by Bloomsbury Publishing Plc.

[oldetowne]

You guys (Leigh and Ken) are starting to be as silly as szyzgy and morganika. Whatever issues you have between yourselves are minuscule compared to the gulf between "us" (if I may be so presumptuous) and the fascist regime seeking to establish a dictatorship and hegemony by the majority on the Council.

Let's not lose sight of the real enemy.

[LouS]

standish,

I may agree that the petition may appear to be myopic lunacy. I know you do not regard me or mine as lunatics, although there are always the fringe elements in any group. I am looking forward to this to at least bring out some debate as to what a practical process would be. And to add concrete corrections to any comments.

First, “sports” lights are not necessarily banned and could be negotiated through the process of P&Z. To my knowledge, if this was not passed, the elected town council could override this decision and still pass the lighting request. The problem arises when the pole heights are considered in excess of 25’. In and of itself, a petition to ZBA may be credible enough to get a waiver so that the lights can be installed on poles exceeding this 25’ height limit.

Second, and most important, is that when ZBA passes this there could be a court challenge that would require this to go in front of a judge to singly rule on ZBA’s determination. Or, if it was not passed, the elected town council would not have a chance to override their decision.

Hopefully, this petition will at least minimally continue dialogue about the lights at Cottone and other athletic fields, and may generate other valid positive suggestions...

[oldetowne]

Can't speak for others, but I have never considered Lou or his folks to be "lunatics".

As for the field lights, I would rather see this go through the appropriate channels. ZBA is not a realistic option, legally or practically. P&Z never had a chance to deal with this in any kind of context or with any staff input (see their October 5, 2004 minutes and you will realize that the door had never been closed on amending the regs to permit taller lights).

To fast forward to this scenario with Russ and his band of merry warriors being the only entity in town with any power is not the way business should be conducted.

[standish]

Dear LouS,

Neither are you a lunatic, nor are even those who advance the petition as a way to accomplish the lights. They may simply want to win too much to think through the consequences.

Perhaps Ken is right that the polemical language I used was too strong. I do not wish to cast aspersions on anyone's sanity. However, I do believe that the petition is short-sighted in that it grants powers to Council we could, and likely would, live to regret.

The "lunacy" is in the desire to accomplish an end so badly that one is prepared to compromise important protections built into our system of self-government. Sometimes we win the battle and lose the war.

[LouS]

Thank you for the, as usual, valid input. I am looking for a viable channel. Currently, there are not appropriate parameters that would judge this issue justifiably.

Another reason for lights. This had been something I wrote about years ago due to the fact that the studies were just being released at that point...

It involves the current "Conard" innitiative involving having high school kids start school up to an hour later. Then, this needs to be weighed against a daylight savings time game that usually ends in the dark under current timing and add an hour later start.

We are ahead of the curve on the football field and we could be ahead of the field here too.

[tomterific]

When the (in)famous Radio Tower was erected on Ridge Rd. a couple of years ago, I believe there was discussion about the town being exempt from Zoning Regs. But, maybe that was only because it was a Public Safety Tower and exempt for that reason. What's really significant is that a major precedent could be established that would have unintended consequences way down the road. Whether or not you like football field lights, it is vital that a knowledgeable attorney review this issue. If this gets approved and turns out to be illegal, the town would be wide open to lawsuits. And, that means money out of taxpayers pockets to defend itself, as well as dollar payments for actual court case defeats. I guess you could say that we have insurance against that, but even if we do, the town liability rating would surely take a hit and that would mean bigger premium payments (out of us taxpayers pockets). The best place in town that I know of for honest discussion of the topic is probably the Friday Night Rick Gary Public Access TV talk show. I'd suggest that people (both pro and anti lights) call in. And, even if you don't care about lights, you need to care about unintended consequences of having this petition pass into law.

[oldetowne]

Tom - the ordinance being proposed is perfectly legal. Here's a legislative research analysis of that statute from 2002 that shows what it means in real life:

May 28, 2002
2002-R-0535

MUNICIPAL EXEMPTION FROM ZONING REGULATIONS


By: John G. Rappa, Principal Analyst


You asked us to answer 11 questions a constituent asked you about the statute under which towns can exempt themselves from their zoning regulations.

We summarize the statute and answer questions 1 to 6 and 8 below. (The fax listing these questions is attached to this memo. )

As we explained to your legislative aide, questions 7 and 9 to11 require us to survey towns about their experience with the statute and cannot be answered within the constituent's timeframe. We will answer them in a subsequent memo.

The Office of Legislative Research cannot give legal opinions, and you should not regard this memo as one.

MUNICIPAL ZONING EXEMPTION

PA 63-133 amended the zoning enabling statute (CGS § 8-2) explicitly to require towns to comply with their zoning regulations unless their legislative bodies vote to exempt the towns from these regulations.

CAN A TOWN EXEMPT ONE PIECE OF PROPERTY OR MUST IT EXEMPT ALL?
The statute does not appear to allow towns to pick and choose which municipal property to exempt from the zoning regulations. Nor does it appear to allow towns to pick and choose a zoning regulation from which to exempt municipal property.


The language of the statute allows towns to "exempt municipal property from the regulations prescribed by the zoning commission. " It does not say "a municipal property" or "a regulation. " During the floor debate on the bill allowing this exemption, Senator Alfano stated that it required towns to choose "whether or not they will be bound by their zoning ordinances. So if they prefer not to be bound, they can do that by a vote of the legislative body, and if they want to be bound by all the zoning laws, they can certainly indicate. This forces them to make an election" (Senate Proceedings, May 7, 1963 p. 1318).

CAN THE TOWN EXEMPT A SPECIFIC PIECE OF PROPERTY RETROACTIVELY?

No, laws are generally proscriptive unless they or the courts specify otherwise. The courts have not ruled on whether towns can apply the exemption retroactively. Normally, proposed projects must comply with zoning regulations that were in effect when a project was proposed. Towns cannot change a regulation and apply it retroactively to the project (CGS § 8-2h).

CAN A TOWN EXEMPT A SPECIFIC BUILDING THAT IS ONLY A PORTION OF THE PROPERTY?

No. Just as a town cannot selectively choose the municipal properties it wants to exempt from zoning, it cannot exempt part of a municipal property and subject the other part to zoning.

CAN A TOWN THAT PURCHASES A PIECE OF PROPERTY, WHICH IS ZONED AS RESIDENTIAL, PUT A MUNICIPAL BUILDING (SENIOR CENTER) AND EXEMPT THIS BUILDING OR MUST IT EXEMPT THE ENTIRE PIECE OF PROPERTY OR MUST IT EXEMPT ALL MUNICIPAL PROPERTY?

As stated above, the town must exempt all municipal property. It cannot buy a parcel, exempt it from zoning, and then build a school, public works garage, or senior center. The town must exempt all municipal property in order to exempt the property in question.

IF A TOWN EXEMPTS [MUNICIPAL PROPERTY] UNDER 8-2 (a), WHAT APPROVALS MUST IT GET FROM WHOM? FLOOD OR EROSION, ENVIRONMENTAL IMPACT, ZONING VARIANCE, ETC. IN ORDER TO GET A BUILDING PERMIT?

The exemption under 8-2 (a) applies only to the zoning regulations; it does not automatically extend to inland wetlands regulations and the building code. Towns proposing projects on municipally owned property containing wetlands must get a wetlands permit unless the project involves a statutorily permitted operation or use (CGS §§ 22a-42(c) (1) and 22a-40). The law does not allow towns to exempt themselves from wetlands regulations or the building code.

Towns that exempt themselves from zoning do not have to apply for a variance or any other zoning approval. The exemption allows towns to use municipally owned property anywhere in town for any purpose, including those the zoning regulations either ban or do not expressly allow.

CAN IT BUILD A SKYSCRAPER OR PUT IN A TOWN DUMP ON THE EXEMPTED PROPERTY?

Not necessarily. The 8-2(a) exemption applies only to zoning approvals. A proposed municipal skyscraper or dump must still comply with other public health and safety codes.
ARE THERE ANY CASES RELATED TO THIS SECTION ON EXEMPTION?

We could find no court cases on the application of the 8-2 (a) zoning exemption.

JR: eh