Penumbras and Emanations 
By Martin Harris 

At a recent multi-generational social evening here in Tennessee’s own Northeast Kingdom --as in Vermont, the handful of upland counties to the north and east of Washington—the conversation turned fairly quickly to politics. No surprise there. What was surprising was the younger generation’s knowledge gap re SCOTUS decisions: they were blissfully unaware, until it was pointed out by a couple of the grey-hair boomers in attendance, of just how Brown V. Board in 1954, requiring public facilities integration, was an explicit reversal of the Court’s own earlier (1896) decision in Plessy v. Ferguson, legitimizing separate-but-equal. After that, I figured the y-g’s wouldn’t be able to handle "penumbras and emanations" either, so I didn’t even ask.

"Penumbras and emanations", you recall, is the phrase invented by SCOTUS Justice William Douglas to explain his judicial view that the US Constitution fails to say, in print, all that it really, really, means to say. Even though there’s no explicit "right to privacy" in the Constitution (in contrast to the explicitly-stated Second Amendment "right to bear arms") Justice Douglas found his desired "right to privacy" in the context of the 1965 Griswold v. Connecticut case, by imagining what he knew the Founders really meant, but failed to say, in other Constitutional sections like the Fourth Amendment, which bans "unreasonable searches and seizures". In the Douglas doctrine, radiating from the Fourth Amendment are gamma-ray force-fields which, although invisible to the not-legally-trained eye, can be seen by experts such as he, enabling him to prescribe from such skillfully interpreted emanation, say, a "right to privacy" every bit as explicit as if the Founders had spelled it out themselves, with their own goose-feather-quill pens. In the Griswold case, the SCOTUS used the penumbras and emanations thesis to deny Connecticut the right to prohibit the sale of contraceptives within its borders; but presently, in the view of SCOTUS Justrix-in-Waiting Sonya Sotomayor, the same invisible legal-force-energy-ray enables the Nutmeg (and any other) State to disregard the Second Amendment, if it sees fit to do so. Similarly, although Griswold was an argument about contraceptive use by married couples, the penumbras and emanations argument has now radiated into another arena of human activity: planning and zoning. Consider, for example, US Route 7 in Ferrisburgh.

On the commercially-zoned site of a former restaurant, the Champlain Oil Company wants to build a fuel-and-food complex, catering to the drivers and passengers of internal-combustion-engine vehicles not known in the 19th century. Protestors claim that the Town Plan calls for the Route 7 corridor to display a 19th century character, and that the COCO proposal, in its design and scale, violates that requirement. Defenders claim that the proposal meets both the "character" requirement of the Town Plan, and the specific regulatory requirements of the zoning by-laws. Here’s the relevant language from the Town Plan. I think you’ll concur with my assessment that it’s remarkably specific. As Town Plan strategy-and-objective language typically goes, it’s better.

"Access on the State Highway [US 7] and the visual character of this entrance to the Town are issues of concern that should be addressed by the Town’s regulations to maintain historic character. All uses in this area should be conditional, and include only small-scale commercial enterprises and mixed uses typical of a 19th century highway crossroads area, with varied lot sizes, landscaping, and setbacks such that views of open land behind may be obtained. Infrastructure is limited in these areas". 

Compare that language specificity to the more usual intentionally vague reference to "the preservation of a rural atmosphere", or "character", or even "ambience" and you’ll appreciate that this Plan writer has chosen, fairly unusually for such documents, not to create a Plan strategy susceptible to variable interpretation by penumbras-and-emanations. Conversely, the Zoning writers, charged with setting forth the very specific quantitative regulations whereby the Plan strategy would be implemented (in the US Route 7 area, a "19th century character" for approveable development proposals) chose instead to be remarkably vague and non-specific, requiring only some minimum setbacks and a minimum two-acre lot size, of which 25%, or up to a half-acre equal to about 20,000 SF, could be the actual building footprint; and it could be a lot larger on a larger lot. Every other aspect of a development proposal, including getting the footprint lower than the seemingly permitted minimum half-acre building footprint, I guess they figured, they would control through their "conditional use" clause, where they would get to say yea-or-nay on specific design proposals for site, building, lighting, paving, and so on, even though such subjects aren’t even mentioned in the actual regulations. In short, the zoning aspect of the Ferrisburgh P&Z process would be subjectively managed through the penumbras and emanations of the Plan language, not objectively spelled out in the Zoning by-laws. Like Justice Douglas with his gamma-ray legal force-fields, the Ferrisburgh zoners prefer to subject each proposal to their own day-to-day, case-by-case interpretation exercised by themselves as the judging regulators. More next week.

Martin Harris is a former Chairman of Citizens for Property Rights.