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A government of mood

In todays hypersensitive political-correctness atmosphere, its not safe any more to quote 18th century French writer/philosopher/politician Charles de Secondat, Baron de Montesquieus pre-liberte, egalite, fraternite comments about a government of laws and not of men because of its unacceptable sexist language. A government of laws and not of persons doesnt have quite the same cachet but the larger point remains valid: the rules ought to be published, predictable, and transparent, not subject to constant case-by-case re-interpretation according to monarchical whim or, in the modern Vermont, vocal-majority mood. Nowhere is this more apparent than in the once predictable but now perilous field of land-use regulation planning-and zoning and the shiretown of Addison County is a prime example. And within the P&Z process in Middlebury, hapless not-little-and-local-enough office-supply-vendor Staples is now the entr饠du jour, as anti-big-box activists have enlarged their list of retail enemies to include some, not all, despised corporate chains as well as that earlier target, big-box retail outlets. Historical purists will argue that it wasnt Montesquieu who put the above quote into his 18th century book LEsprit du Loi but English writer James Harrington who used it in his 17th century book, Empire of the Law from which source later-President-2, John Adams, put it into the Massachusetts Constitution. Je ne sais pas. I do know that the basic idea of doing all-things-governmental by-the-open-book was at the root of Lewis Carrolls Alice in Wonderland and Through the Looking Glass in which he ridiculed an arbitrary monarchy. His example wasnt Victoria, who might retaliate, but a safely fictional Red Queen who demanded subjectivity in decision-making via verdict first, trial later, and a well-known the law is what is I say it is quote which, however, I have not been able to find in his pages. Enthusiasts for majority rule governance should have no quarrel with a town voting to put whatever it wants in its zoning ordinance, so long as it isnt unconstitutional or arbitrary, and so if the shire town votes to exclude retail with an over-50K SF footprint, fine. If its voters want to exclude all chain retail as well, thats their privilege based on their autonomy. Let them then say so in their rule book, so that the management of stores like Staples doesnt naively read the P&Z rules, think (incorrectly) that theyre welcome, apply for a permit, and only then find out that theyre not. Transparency (rule-of-law-and-not-persons) requires that the rulers (those who administer the duly-adopted P&Z rules) be just as bound by those predictable published requirements as the ruled, those who apply for permits to use land. That isnt usually the case in the modern Vermont in general, and in towns like Middlebury, Manchester, and Randolph in particular. Randolph, you may recall, was the place where, recently, a state assistant attorney general argued that a permit application meeting all published zoning requirements should be denied anyway (and it was), because in that particular case the zoning regulations are irrelevant. Manchester, you may recall, was the place where a motel proposed for an area zoned for motels was denied because the franchise had a number in its name and was therefore considered too down-scale to be socially acceptable. And Middlebury is the place where hostility to all things corporate is highly selective: those with a national profile arent welcome, while those considered suitably local and/or mom-n-pop are. If thats what these towns want, fine: let them say so in plain English in their zoning ordinances. My suspicion is that those with such views lack the gumption to say so directly, and prefer to keep their preferences unspoken, where they can be exercised according to their current mood. Thats not rule of law, either Montesquieu or Adams. Its a Red Queen rule of mood. Former Vermonter Martin Harris lives in Tennessee.

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