1089 and all that jazz

As an admittedly uninventive type - educated a long time ago - I once took blackletter law at face value.

In planning and zoning, we were trained to write land-use rules equally comprehensible to the regulated and the regulators, light on unpredictable "conditional use" and heavy on such specific measures of performance as setbacks and site-utilization percentages.

In construction, math ruled: beam strengths and wind loads had to compute.

One of my first exposures to the real world of politics, not the theoretical world of academics, came with the floods of the 1970s, which, as I described last week, revealed a whole 'nother and then-new-to-me reality: government choosing which of its own rules it would follow (or not).

More was to follow, eventually compiling a statewide pattern of zoning boards awarding and denying permits without consistent reference to the actual written by-laws, and sometimes under direct instruction from Montpelier -think Manchester, Colchester, St. Albans, or Randolph-or of school districts Progressively (pun intended) reducing class size and claiming that "the state regs made us do it". As I saw it, the concept of the flexible living law seemed to start with a previously unknown (to me, anyway) statute: 10VSA 1098.

Now it's back in the news because of a decomposing cow carcass in the stateowned Otter Creek. Ol' 1098 requires the state to maintain its larger waterways, but when it doesn't want to (now, for example) it just says no. More precisely, it says nothing. During the '70s, it said nothing for abut six years, from the first flood-caused lo -jams in its six streams in 1973, through five or six years of official inaction (and constant field flooding, crop loss, and stream-bank damage) until eventual snag removal during the late 1970s.

One could argue, with technical accuracy, that 10VSA1098 is specific about State stream-maintenance responsibility but doesn't set timelines, so what's a mere half-dozen growing seasons, critical to the dairy farming industry, to argue over? In the present case, with a bit more delay, the carcass will soon become Northern Pike snacks and a state once known for frugality will have spent zero on it.

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