For the love of laws
“Conclusion: The existing ski slope lighting plan has uplight which does not meet the town’s zoning code and creates excessive light levels on the slope with considerable glare down the slope. Replacing the luminaires with the alternative is viable and will still meet the recommended practice criteria for ski slope lighting while reducing light levels and glare.”
Nancy Clanton, Member, Board of Directors, IESNA
Lighting expert retained by Francestown ZBA as its advisor
Before going to the core issue, which is the law, let me again reiterate what is not part of the objection. No one has suggested that Crotched Mountain night skiing should be abandoned.
The theme from the beginning has been that Crotched Mountain ski area should follow the law, a trajectory that is still not on the radar of Crotched Mountain management. By ignoring the law of Francestown, they have created a visual eyesore that some now refer to as the “Francestown Light Farm.” The poorly installed lights at Crotched Mountain impact many residents around the region and those lights flaunt the desires of the voters of its host community.
Thirteen years ago, in 2001, the residents of Francestown assembled in their annual town meeting and amended, and strengthened, their outdoor lighting ordinance. It was quite clear what the citizens of Francestown wanted when they voted for that ordinance.
Two years later, Peak Resorts, a Missouri company and owner of the Crotched Mountain ski area, applied for night skiing. The town granted that application after receiving assurances from Peak that town laws would be observed. If Peak had a problem with the town ordinance, they should have spoken up and applied for a variance. They didn’t. Instead, it appears that they simply blew off the laws of Francestown and did as they wished.
In 2012, they returned to the Town Planning Board with a plan to expand their ski runs because they had acquired a new $2 million quad lift. Again, the Town Planning Board granted tentative approval with the understanding that Peak would comply with town laws. That town request was also completely ignored. Emails from the Town Planning Board to Crotched Mountain in December, January and February went unanswered. Finally, in March, Crotched showed up and claimed that the town law didn’t apply to them.
This time the town said quite clearly, “Yes it does, and if you don’t like it then you can apply for a variance.” Crotched slapped together an almost contemptuous application for a variance that addressed no legal issues whatsoever.
The variance application process is not a mysterious one. Among other requirements, the applicant must satisfactorily answer five questions. An inadequate answer on any one of the five forces a rejection of the application.
It does not take a lawyer to see that Peak’s answers fail, and they fail miserably. Three of the five questions are answered using some form of “financial hardship,” which is not a sufficient reason for a variance. (It is also rather brazen in that it comes from the mouth of a $175 million company!) A fourth question, related to the “spirit of the ordinance,” is answered curiously with no reference to the ordinance. And the fifth answer demonstrates no evidence whatsoever that homes’ economic values are not diminished by these lights.
The law (Article 3.15 of the Francestown Zoning Ordinance) is clear. And the standards required to approve a variance application are also clear. The application from Peak does not come close to meeting any reasonable test for approval.
The town didn’t swallow the Crotched claim that conforming to the law was impossible. The Town Zoning Board of Adjustment brought in an eminently qualified and nationally known lighting firm to address whether or not Crotched Mountain was obeying the law and whether or not it was possible to fix the lighting problem. The conclusion from the experts unequivocally said that the lights do not follow the law but they can be fixed if the proper lighting instruments are utilized and positioned.
That report was received on Oct. 22. To my knowledge, Crotched has done nothing in the interim except to complain in the media that winter is coming fast and they may not be able to comply.
Certainly, fixing the lights now is going to be considerably more expensive than it would have been several months ago, but Peak Resorts controlled that calendar.
When this debate first surfaced, the objection from most was with the new lights that were first turned on last year. Now the town is seeing that Crotched has broken town laws for over a decade and all lights are now in question. Quite often a grand sense of entitlement indeed concludes with a U-turn.
Not about Popularity – It’s the law!
This case is not a popular vote on the virtues of skiing. Rather, it is about upholding the law, protecting and defending the law, and specifically protecting those homeowners the law was designed to protect (read 3.15 d. ii, if you have any doubts about this).
We are a nation of laws. We rely on laws and their enforcement. We organize our daily lives around the law. Laws reflect the will of the people. In this case, the Francestown Zoning Law of 1985, strengthened by the Outdoor Lighting Law of 2001, reflects the actual will of the citizens of Francestown. The current ZBA members are, in effect, the surrogates for all town citizens who participated and voted at previous town meetings wherein these laws were adopted.
Perhaps the sentiment of Francestown has changed from “retaining its present character of simple rural beauty” to something else. If that is the case, there exists a legitimate democratic process of civic legislation that can change or amend current law.
The ZBA is not the body to upend these zoning laws and effectively write a new law. And the Board must disregard personal preferences that may favor a particular enterprise. Further, the ZBA knows that it must be blind to the enterprise making the application. Its ruling must be indifferent as to whether the applicant is a saloon, a car dealer, a rock concert company, or Peak Resorts.
On Sept. 12, the ZBA held a lively and fair hearing, during which many citizens made comments reflecting their views. I attended and observed that there were dozens of young people in attendance — by appearance, mostly high school teenagers. They were engaged, obviously passionate about their skiing, and admirably well behaved. It was a very hopeful sign about our country’s future, because it won’t be too long before these same people will become our leaders.
The paradox of this case is that, at a time when trust in our government institutions is arguably at an all-time low and cynicism about the same government institutions is at an all-time high, the worst lesson we can send to our future leaders, these same young people in that audience, would be to approve this application. To do so shouts that we don’t administer laws blindly; that a ruling depends on who you are, or whom you know, or how much power you have or even how popular you may be.
The best thing that can happen is to let these future leaders (not to mention all of us) know, and see, that Francestown takes its laws and legal processes very seriously, and to deny Peak’s request, not because Peak is unpopular — it isn’t — but because the law requires it.
So, the stakes with this decision are high. A bad decision, one not based on what the law requires but rather one based on “what’s fun,” or “who can make the most noise” would not only harm those of us that the law is intended to protect, it would also be another disappointing example of why the public doesn’t trust government to do the right thing.
The Clanton lighting experts offered a solution. In fact, they threw a lifeline to the Crotched Mountain ski area by pointing out exactly what lights would be needed in order to bring the ski area into compliance. Perhaps there are other sophisticated lighting designs that could also solve this problem. Francestown’s record of enforcing and protecting this law needs strengthening, and the ZBA has a great opportunity, and obligation, to do so.
This is about a company coming in and operating with apparent disregard for the laws that were written by and voted for by the citizens of the town in which the company operates — laws that have been on the books for years.
The course now is for Peak Resorts to abide by Francestown’s laws in order to open on time and respond to its customers’ desires to hit the slopes this winter. The Zoning Board of Adjustment can clearly see that this is an obviously flawed variance application and the Board has an opportunity to set Peak Resort on the right course of action.
“Another very important goal of this ordinance is the preservation of a key factor in the rural quality of life in Francestown -- the dark night sky.”
Francestown Annual Report, 2000
Ted Leach lives in Hancock.