Open Meetings law violated

RENSSELAERVILLE — An April 23 state Supreme Court decision nullifies and voids Rensselaerville’s new zoning law.  The town has now reverted back to its old laws.

“We expected to win it,” said Vernon Husek this week.  Husek founded and leads Rensselaerville Farmland Protection, a grassroots group that sued the town in January over its new zoning law, adopted last December.

In its suit, RFP drew attention to an inconsistency in Rensselaerville planning.

The town’s master plan, unanimously adopted by the town board in March of 2007 and used as a template to draft new zoning laws, calls for one dwelling per 20 acres in the town’s agricultural district.  But that requirement was not followed when the town board, in another unanimous decision, adopted in December a new zoning law, which includes a five-acre requirement.

But the inconsistency between the master plan and the adopted law was not the reason the town’s zoning law was nullified.

The town violated the state’s Open Meetings Law by failing to publish a notice of the special meeting that followed the Dec. 19 public hearing, according to the decision by Judge John C. Egan Jr. 

The judge did not rule on RFP’s other contentions — about the need for the zoning to follow the comprehensive plan — because the violation of the Open Meetings Law was a threshold issue that settled the case. 

Three members of RFP — John Hernick, Diana Deitrich, and Gordon Enk — testified that they did not attend the December hearing, and, had they known the town board was also holding a special meeting after, they would have attended to observe and participate. 

The decision cites two Rensselaerville hearings in 2007 — one on Aug. 9 and the other on Nov. 8 — when the town published both notices of the hearings and separate notices that meetings would immediately follow.

Members of RFP have been outspoken proponents of protecting the town’s prime soils and farmland from development.  They favor a low-density requirement in the town’s agricultural district, whereby fewer house lots are allowed and build-out of potential homes is reduced. 

Leaders of the group, including Husek and Jeannette Rice, have outlined their viewpoint by highlighting 20-acre net-density agricultural zoning, whereby, on a 100-acre parcel, five lots — of sizes to be determined by site conditions — would be allowed.

The town, in adopting a five-acre requirement, would permit up to 20 dwellings on that same size parcel.

“We’re not for big lots,” said Husek.  “We don’t want big house lots.  That’s exactly what we don’t want.  We want small house lots.  We just don’t want as many of them as the town board seems to be moving towards and approving.  And I’m convinced they don’t know what the hell they were doing because they can’t explain it.”

Husek had chaired the master-plan committee but resigned after it became clear the committee’s initial recommendations for the agricultural district were not going to be followed. 

Asked how much RFP has spent on legal fees, Husek said, “It’s an expensive proposition and we’re operating entirely with private donations, whereas the town is dipping into the public purse.”

In 2006 and 2007, the town held two public hearings and worked for 20 months on the planning process — compiling information about the town and writing a comprehensive land-use plan, then using that plan, which includes town goals and recommendations, to draft new zoning laws. 

In reverting back to its old laws, Rensselaerville is now guided by the same minimum lot-size requirement it had adopted in December of one dwelling per five acres in the town’s agricultural district. 

To readopt new zoning laws, the Rensselaerville Town Board would have to hold another public hearing and vote again on the law. 

And now?

The town’s Republican supervisor, Jost Nickelsberg, who is now in the minority on a town board with a Democratic majority, was asked this week whether the town will change its zoning and whether a compromise could be struck in agricultural zoning between RFP and the town.

Democratic Councilman Gary Chase could not be reached for comment.

RFP has said it will file another suit should the town readopt five-acre zoning. 

“I think we have to sit and listen to their logic and concerns, but we’ve really exhausted the topic.  You can’t say ‘completely’ exhausted the topic,” Nickelsberg said this week. 

The town, he said, has sent out surveys and held meetings and discussions.

“It’s very clear that that group feels very strongly about that issue.  And a lot of people feel strongly in several other directions,” said Nickelsberg. 

“So, will we talk about it?” he asked.  “They’re citizens and they need to express themselves, and we need to listen to the logic of what they have to say.  And ignoring it is not the way to do that so we’re definitely going to listen to what they have to say.”

Nickelsberg said there are four views: RFP’s; “the extreme opposite” — to not take away values or assets from landowners because their land is their pension; to buy land to preserve open space; and to raise funds for farmland preservation.  And, he said, there are probably others. 

“So, to the extent that we don’t have a moratorium,” said Nickelsberg, “we’re going to have to look at it hard and aggressively, figure out what, if anything, makes sense other than what we have and then get on with it.” 

Throughout the 20 months that Rensselaerville worked on its comprehensive plan and drafted new zoning laws, a committee, officials, and residents have considered many lot requirements for the town’s agricultural district — five, 10, 20, and 25 acres.  When the town held its first public hearing just over a year ago, the requirement under consideration was 10 acres. 

Could a compromise be struck in agricultural zoning?

“That’s a core question,” Nickelsberg said.  “We did have, at one point, 10 acres.  That was a compromise, clearly, relative to what we now have and what some people wanted, which was 20 or 25 acres.”

“Is it possible to compromise?” Nickelsberg asked.

“I guess you never can say ‘never,’ right?  But I couldn’t begin to think about what the odds might be,” said Nickelsberg.  “But I think every view is going to have an advocate, and they’ll just have to be persuasive relative to what the support of the conclusion is.” 

He said the town’s planning board wants to make some changes to the zoning law. 

“We, all along, have been saying, and, in fact, feel, that it is a living, breathing, evolving document,” Nickelsberg said.  “You put something that complex, that many moving parts together, you’re going to have some things that you want to change.”