Falmouth Wind Turbine Article 2 & 3 -Spot Zoning Court Prohibited

Article 2 Is A Poorly Written And Explained Eminent Domain Article

Article 3 is a Spot Zoning Article- Falmouth Has No Bylaw For Spot Zoning

The two wind tubine articles, article 2 and 3, endoresed by the Falmouth Select Board on October 5, 2015 are commonly called Spot Zoning. A Special Town Meeting is being held November 10, 2015

Massachusetts Supreme Judicial Court: Spot zoning is illegal on both constitutional and statutory grounds.

The Verbal Explanation of Article 2 , Eminent Domain :

For the record the following information is the verbal presentation of Article 2 at the Falmouth Select Board Meeting Oct 5 , 2015 as shown at the one hour and thirty minute mark, 1:30 , on Falmouth CTV’s Government Channel.

The presenter describes the options of taking the homes of wind turbine victims by eminent domain.

The presentation describes several other methods and options on how to take the homes around the wind turbines away from the residential home owners. (1:30 minute mark in the video )

The endorsement of Article 2 by the Select Board is almost one hour later at the two hour and twenty four minute mark, 2:24 minutes

The article presentation:
Presentation of Petition Article for November 2015 Special Town Meeting (5 minutes)
a. Present Petition Article 2 – Ronald Zweig and Richard Latimer

The presentation can be viewed on the link below:
Board of Selectmen 10/5/15 part 2

http://www.fctv.org/v3/vod/board-selectmen-10515-part-2

1:30 minute mark and 2:24 minute mark 

WARRANT FOR THE NOVEMBER SPECIAL TOWN MEETING TUESDAY, NOVEMBER 10, 2015 AT 7:00 p.m.

“ARTICLE 2: To see if the Town will vote to support the Board of Selectmen’s efforts toward maximizing the benefits and thereby minimizing any financial burden to Falmouth’s citizens from operation of the Town’s municipal turbines at its Wastewater Treatment Facility at 154 Blacksmith Shop Road, West Falmouth, MA. Or do or take any other action on the matter. On petition of Richard Latimer, Ronald Zweig and others.”

“ARTICLE 3: To see if the town will vote to amend Chapter 240 – Zoning – of the Code of Falmouth by adding the following to Article XXXIV (34) Wind Energy Systems:

240-166.D (2) Any Wind Energy System owned by the Town of Falmouth and used for municipal purposes, in existence as of the date of this bylaw, shall be exempt from the provisions of this Article, pursuant to Section 240-30 .B. and may be allowed to operate as a matter of right in public use district”

“WHAT IS SPOT ZONING ?”

Q: What is “spot zoning”?

A: The Massachusetts Supreme Judicial Court found that spot zoning occurs where one lot or a small area has been singled out for treatment less onerous than that imposed upon nearby, indistinguishable properties.

The Court of Appeals has found that spot zoning arises “where a zoning change is designed solely for the economic benefit of the owner of the property receiving special treatment and is not in accordance with a well considered plan for the public welfare.”

Spot zoning is illegal on both constitutional and statutory grounds. But the issue is a complicated one—often with many factors to be taken into account—and has been the subject of some fifty court decisions. It is best taken up with municipal counsel.

https://www.mma.org/got-a-question-try-ask-the-mma-quick-links-287/635-what-is-spot-zoning


I. DEFINITIONS OF “SPOT ZONING”

“Spot zoning” is common legal terminology that describes a zoning provision which restricts only the use of a particular piece of property or a small group of adjoining properties, but which does not relate to the general plan of the community.’

This terminology is often applied to changes or proposed changes in the original zoning of property.

Courts have called spot zoning “[a]n attempt to wrench a single small lot from its environment and give it a new rating that disturbs the tenor of the neighborhood.” But this charge of discrimination can be raised to the original classification of the property as well as to any reclassification. Singling out a small area for different treatment from that accorded the surrounding properties without justification is invalid.

Spot zoning has been referred to as the antithesis of planned zoning. Spot zoning undermines comprehensive planning because it is out of harmony with the overall zoning of the community. It smacks of special benefit for a limited group of property owners. Consequently, courts strike down spot zoning.’ As a test for spot zoning, courts ask whether the zoning is inconsistent with the community’s comprehensive plan,’ and benefits the owner of the land over the general public.

Courts prohibit as spot zoning, zoning of a small area and incongruous uses between that small area and adjacent tracts.” For example, one lot in a business district may be limited to residential uses, thereby creating an island within the sea of commerce.’ In contrast, the spot may be a single industrial lot within a wholly residential area. The common feature is variant, and often favorable, treatment of the spot.


http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1100&context=law_urbanlaw