COAX Comments on Case 12-F-0036 “Article X”May 28, 2012COMMENT 1 – Local Laws and Ordinances
OVERVIEW of Article X Draft Regulations deficiency towards Local Laws and Ordinances
The current draft regulations are written and inferred that public input is merely procedural and a task to check off. How much real weight can/does the public hold, since the Siting Board has limited local public input into real procedural matters and hearings? Public involvement into procedural matters is a must.One method to strongly emphasize local laws and ordinances is local involvement. The ad hoc membershipshould be increased to include the locality of the siting’s State Senator, State Assembly person, CountyChairperson, Town Supervisor and two at-large voting members from the Town of the proposed siting. Thiswould provide six people from the affected municipalities balanced by five Albany appointees – an 11 member Siting Board is very reasonable. Local representation should be given more weight and input. Most importantlyad hoc members should have the same voting rights as the Permanent Siting Board.The proposed regulations mention -- but do not emphasize -- that strong consideration shall be provided toaccepting municipalities zoning, comprehensive general plans, local laws and ordinances as written. We suggestthat the regulations require projects under review place high priority on compliance with local comprehensive plans and zoning laws.
COMMENTS to Discussion and Analysis of Stakeholders Recommendations – Local Laws
“The default is that the local substantive requirement is not supplanted unless theSiting Board elects to not apply it by finding that, as applied to the proposed facility,the requirement is unreasonably burdensome in view of the existing technology orthe needs of or costs to ratepayers whether located inside or outside of suchmunicipality. In other words,
unless the Siting Board finds a local ordinance to beunreasonably burdensome
, the Siting Board itself applies the ordinance … Article 10and the draft regulations do not prohibit the Siting Board’s consideration of applicantrequests to override local laws at a point early on in the Article 10 process. Thatbeing said, however, applicants should consider that often the facts necessary forthe Siting Board to determine whether to waive a local law will require thedevelopment of a record.
Specifically, Article 10 expressly recognizes the ability of municipalities to defend their local laws; therefore, it will be likely that some level of evidence and litigation regarding the issue will be necessary
prior to the Boardrendering a determination”
Municipalities across New York State have diligently considered local factors, comprehensive planning and the public health safety and welfare of its citizens when developing local laws and ordinances. To other municipalities simple items like a strong noise ordinance in Hyde Park, NY for example, may seem burdensomein a rural community like Henderson, NY. However, the local law in Hyde Park was deliberated and passed as alocal law. It should not simply be dismissed as burdensome.The cost for municipalities to defend their comprehensive general plans, zoning laws and ordinances deemed burdensome by others is extremely unreasonable. If a local law is to be negated, the State or Applicant shouldhave to bear the burden of paying for all legal costs to litigate this infringement of Home Rule-- a right assigned tomunicipalities by the NYS Constitution since 1894.