Re: For Immediate Publication in The Walpolean – Response to Elana Baron’s March 24th Post Regarding Town Warrant Article 3
I represent Walpole residents, Tom and Christie Winmill, who joined forces with multiple other voters to protect Walpole from spoiling what makes Walpole special with the infiltration of “homogenous and visually obtrusive businesses.” They asked my law firm, which specializes in land use law, to draft a zoning amendment that would give town officials better regulatory resources to address such businesses. Unfortunately, I am in the position of having to address Elana Baron’s inexplicable opposition to this public-spirited effort.
Rather than suggest a better path forward, she pokes holes at the language of the warrant article and claims that it is ambiguous and that town officials are likely to interpret the article in a manner that is completely contrary to the intent of the new ordinance provision. She does not give the town’s land use boards enough credit. She is incorrect that the language is too ambiguous for reasonable interpretation.
If a development decision of a local land use board is appealed, the court will first look at the plain language of the ordinance. If the court finds that the ordinance is subject to more than one plausible interpretation, it will then look to other information – such as the statement made in the preamble to the warrant article – to determine what the intent of the ordinance is and what interpretation is consistent with that intent.
Ms. Baron has presented an unconvincing case that the language of the article is ambiguous, but in such a case, it is the intent of the ordinance that will ultimately prevail. And the intent of the proposed ordinance is to keep Walpole a special place. Walpole voters should be in favor of this ordinance.
As an attorney, Mr. Hanna knows that “intent” doesn’t prevail in a lawsuit any more than “good intentions” do. It’s the language of an ordinance that lawyers will litigate. As a former planning board member, I know that the more buttons an ordinance tries to push, the more loopholes and unintended consequences it can too easily create. That’s my fear regarding the Winmills’ very well-intended attempt. I support their goal wholeheartedly but I fear this amendment to the zoning ordinance will create as many troubles as it tries to solve. I hope the town will set this warrant article aside and let it begin a discussion among the planning board, planning professionals, and businesses and Walpoleans about how to “keep Walpole Walpole” without tying ourselves to a section in the zoning ordinance that tries, and likely fails, to address and head off every conceivable instance imaginable.
Did you print Elana’s response to the Hanna article?