December 2, 2015 at 4:20 p.m.
A lawsuit waiting to happen
A lawsuit waiting to happen
The property owners seeking to create those lots have every right by law to create them. As we report in today's edition, these property owners are seeking to create lots that meet the minimum frontage requirements of NR115 - the new prevailing standard throughout the state since last July - though they fell short under county standards.
But, as corporation counsel Brian Desmond correctly pointed out to the supervisors, state law trumps the county ordinance, and the county requirements at issue are effectively null and void. By not approving the requests, the county has denied these property owners their legal property rights.
And, by not approving the requests, the supervisors have put the county at risk of a multitude of lawsuits. At least the supervisors voted to table the measures rather than deny them outright, and so the committee can reconsider. It should do so quickly because, as the old saying goes, justice delayed is often justice denied.
Some have compared this defiance to the good old days of about a decade ago when county zoning supervisors - at that time seeking to protect property rights - passed ordinance amendments contrary to what the state Department of Natural Resources said were minimum state standards. They routinely rejected the corporation counsel's advice then, too.
Indeed, way back when, when the Oneida County zoning committee was led by the late and incomparable Gary Baier, the DNR repeatedly talked about suing the county if they passed noncompliant ordinances. At their side, and at the end of their leash, sat then corporation counsel Larry Heath.
But the comparisons with today are not apt. There are major differences - philosophically, strategically, and practically.
Philosophically, at that time the zoning committee was fighting state rules that massively appropriated property from landowners in myriad ways. From suspect ordinary high water mark determinations to outrageous lakebed determinations to all-out assaults on piers and boathouses and nonconforming structures, the state was effectively taking property away from citizens, and robbing them of their property values and their money.
The county was fighting then for taxpayers, not against them.
Of course, strategically Baier was a shrewd tactician who never actually let the DNR's threats of lawsuits get to court. For one thing, he knew that the agency knew its own positions were constitutionally weak, at best, and so court victories were no sure thing.
And so Baier repeatedly maneuvered the DNR into negotiations that stopped the worst abuses of the state against the people. Through negotiations he produced an ordinance that, while not perfect, is a lot better than the environmentally biased ordinance than preceded him, and is still so much better than many county ordinances today.
Practically speaking, Baier and Oneida County taxpayers had little to lose, even if the DNR had sued. A single, focused litigation might have resulted in a superseding ordinance if the county lost. It would have cost a little for a worthy fight, to be sure, but the fight would have been one government entity against another single government entity, one of which would win and one of which would lose. Case closed.
None of those scenarios match the current situation.
Philosophically, it's hard to know the reasoning behind the zoning committee's most recent action. Chairman Scott Holewinski sided with taxpayers on this one, and Dave Hintz was absent, but the votes of Billy Fried, Jack Sorensen, and Mike Timmons are bewildering.
Timmons' vote was not explained. Meanwhile, Fried is usually a friend of property rights, and he said again his beef was not with Act 55 so much as it was with the need to wait until all the clarifications are in and the interpretive dust has settled.
The problem is, and Fried has been around long enough to know this, the dust never settles on shoreland zoning, and it never will so long as there are living, breathing environmentalists who are determined to confiscate land in the name of radical aestheticism.
Even more to the point, as Desmond pointed out, the issue of minimum lot widths is one of the few shoreland issues that is not bogged down in murky statutory language. It is crystal clear. The state law gives those property owners the right to have the lots they proposed.
In the old days, Baier challenged his corporation counsel and the DNR on vague interpretative and definitional standards, contending that the agency's policy positions were deformed and themselves unconstitutional. His challenges were based on an abiding belief that what he was pursuing was in fact legal.
There's none of that here. The committee simply looked at the law and thumbed its nose at it. Hard to win that one in court.
As for Mr. Sorensen, he keeps saying the history of the zoning committee is to figure out what the law is and then figure out a way to get around it. Well, in this instance, the committee didn't try to get around the law; they just broke it.
Strategically, the case is different because when the litigation begins, the committee will have pitted the county not against the state, as Baier did, but against its individual citizens. It seems to us that's not a very smart strategy, for one thing because citizens vote.
It's one thing to challenge outside entities in court, whether those entities are special interest groups or government bureaucracies; but when you pit yourself against your own citizens, that's a sign that's something's probably wrong with what you're doing, especially when you are ignoring very clear state law to do so.
Finally, on a practical level, we hope Oneida County supervisors have deep pockets, for since the county is potentially pitting itself not against a state agency but against individuals, one lawsuit is likely to lead to many lawsuits by equally aggrieved property owners.
That's going to be a costly journey, and taxpayers should demand that the supervisors who prompted the litigation be held personally responsible for the bill when it comes due. Taxpayers shouldn't have to pay for having the county turn its back on them in the first place.
Again, the county spared itself by tabling its decisions rather than denying the requests. Indeed, Fried's motion to do just that on one request (because it violated the ordinance, an ordinance that itself violates state law, as Desmond again pointed out) failed to get a second.
The county should revisit these requests and approve them. And it should obey the new law while it makes policy decisions on truly ambiguous issues within the new law and updates its own ordinance.
It is often said that ignorance of the law is no excuse to break it. There's also no excuse for breaking the law just because you don't like it, or because it has rendered the county's own ordiannce obsolete.
Indeed, there is no ignorance to be excused here. Supervisors know what the law is, and they should abide by it.
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