Penumbras and Emanations II 
By Martin Harris 

At some risk of over-simplification I conclude, based on first-hand observation, that the intellectual make-up of the planning and zoning world, from global theorists to local regulators, has changed markedly in the last few decades. It used to include a much higher percentage of participants coming out of a left-brain engineering, quantitative-analysis, fact-based background. Now, I’d guess, the p&z field is dominated by right-brain folks, more highly skilled in things verbal, pictorial, and symbolic. If that guess is accurate, it explains why efforts within the p&z discipline, from the academic end to the grass-roots end, aimed at popularizing "performance-standards" zoning, have shown a steady decline in acceptance over the last four decades or so. After all, assigning measurable quantitative values to all the criteria which planning and zoning are intended to manage is pretty much the characteristic of left-brain, not right-brain, thinking.

At some similar risk of over-simplification I also conclude that the "conditional use" development-management technique has soared in popularity and usage even as the performance-standards technique has lost favor, because right-brain people prefer the former as a way of exercising their superior judgment on a case-by-case basis. It’s been instructive to watch such economic wizards, in Middlebury for example, deciding whether the Shire Town "needs" another supermarket. In Manchester, they were deciding whether the Norman Rockwell village "needed" a (dare I say down-scale?) motel-with-a-number-in-its-name. In Montpelier, they were deciding whether the Capital "needed" another building-supply outlet to occupy a vacant big-box building. In Bradford, quite a few years back, they were deciding whether they "needed" yet another antique-shop-in-a-barn. Unsurprisingly, the answer is typically "no". Such mind-sets are singularly unfriendly to the free-market concept of market competition deciding such "need" questions, and to the left-brain idea of running the various impact numbers –-covering, say, lighting, parking, noise, smoke, even architectural materials and building dimensions--  to see whether they meet pre-set, voter-approved standards, and basing permit approval or denial solely on that mathematical finding.

The mind-set shows up, for example, in the popularity-decline, in p&z circles, for the measurable building set-back requirement. Increasingly, you’ll see phrases like "compatible with existing development" replacing, say, the former 35 feet, the result being that applicants who used to know that 35 feet 1 inch would pass muster, can no longer enjoy such certainty in their design proposal.

Seen in this light, the permit-approval odyssey of the food-and-fuel depot proposed for Route US 7 in Ferrisburgh reveals a prototypical example of p&z policies having moved from left-brain to right-brain thinking. While the Town Plan is remarkably explicit in its language calling for Route 7 development to display "19th century character", town zoning bylaws are remarkably silent on the guidelines for new construction to achieve that design objective. Only some setback requirements, minimum lot size, maximum building height, and building footprint maximum-percentage-of-site are prescribed. The Town Plan was primarily written by the then Zoning Administrator Jean Richardson with oversight and approval by the Planning Commission and final approval by the Selectboard.  One of the "architects" of the Zoning By-Laws tells me, in defense of their abbreviated content, that "the reasoning wasn’t quite as nefarious as you would think; life was much simpler back then and there really wasn’t any pressure from people wanting to do terrible things".

Writing and adopting by-laws which don’t specifically further the duly-adopted, voter-approved Town Plan goals, on the wager that such goals can better be achieved via their preferred conditional-use meet-these-special-demands-to-get-your-permit process, runs up against the State Statute regarding by-laws. Within Title 24, #4401 specifically requires zoning by-laws "to be in conformance with the Plan" and subsequent Court interpretation has found that "zoning regulations must reflect the Town Plan, but need not be controlled by it, and though the Plan may recommend many desirable approaches to development, only those provisions incorporated in the by-laws are legally enforceable". 24 VSA #4401.  You’ll find the reference in  137 Vermont Reports, #10.

Note that last clause: only those provisions incorporated in the by-laws are legally enforceable".  It should, but apparently doesn’t, give the penumbras-and-emanations, governance-by-conditional-use, advocates, pause. More next week.

Martin Harris is a former Chairman of Citizens for Property Rights