Agenda - Planning Commission - 05/01/2008

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. April 10, 20081 Volume 2 I No.7 The town brought an action against J.L.G.. The town sought an order from the court to prevent use of the deck and to require re- moval of the deck. The town also asked the court to order J.LG. to remove a lighthouse that J.L.G. had constructed on the shore of the lake without a town zoning or building permit. J.L.G. argued that it was not required to obtain a local zoning or building permit for the deck or lighthouse projects because the Act preempted the town's zoning regulations. The town said that construction of the projects was not preempt- ed by the Act. The town argued that even though J.L.G.constructed the deck and lighthouse on property that was owned by Northeast and that was subject to federal licensing, the construction still had to comply with local zoning regulations. The trial court agreed with, and found in favor of, J.L.G. DECISION: Affirmed. On appeal, the court agreed with J.L.G. that the Act preempted the town's zoning regulations. The court rejected the town's argu- ment that because J.L.G.'s projects involved a recreational use with- in a hydroelectric power project rather than a direct hydroelectric power project, the local zoning regulations still applied and were not preempted by the Act. The court stressed that the Act showed Congress intended to cree ate a "complete scheme of national regulation" for all aspects of hydroelectric power projects, including recreationalllses within the project. The court said that Northeast's federal license for'its hydro- electric power 'project allowed Northeast to permit recreational uses on the property. The court concluded that since J.L.G.'s construction projects were recreational uses within a hydroelectric power project, which was exclusively regulated by the Act, the town's zoning regu- lations were preempted by the Act. The town pointed to federal regulations as supporting its argu- ment that the Act did not preempt local regulations. The town not- ed that 18 C.ER. ~ 2.7, which governed recreational development at FERC licensed projects, specifically allowed local,. zoning regula- tion for "health, sanitation and public safety." The town argued that therefore the town's zoning regulations applied to J.L.G.'s construc- tion projects. The court rejected this argument. The court read ~ 2.7 more 'narrowly. The court found that ~ 2.7 intended only to permit local regulations that directly addressed health and sanitation within a recreational use. The court read the term "public safety" in ~ 2.7 in the conte:x.L of health and sanitation. The court therefore found that only those town regulations directly affecting health and sanita- tion were included in ~ 2.7. The court found that the town's zoning setback requirements did not fall within ~ 2.7. The court concluded 3 21