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EDITORIAL: What defines a ‘hardship’?


IF YOU’RE SERENA WILLIAMS, then yes, having to wait for a tennis court would be a hardship. But if you’re a sports mega-star like Ms. Williams, you don’t wait for a court, the tennis court waits for you.

If this pearl of wisdom doesn’t make sense, that’s understandable. It’s what you get from an editorial that connects the words “tennis” and “hardship.”

The Chatham Town Board has to decide whether to grant a hardship waiver that would exempt one landowner from a town moratorium that prohibits new construction along unpaved town roads. This is not your average hardship case.

Adam Slone, who owns a home on a dirt road, wants to build five tennis courts on his property. But he can’t get started until the moratorium expires unless he convinces the Town Board that it’s a hardship for him to wait.
He says he needs the courts as part of plan for a sleep-away camp for inner city kids, with tennis instruction as the main activity. He’s been vague about his plan, including what other activities the camp would offer and his experience at operating a venture of this sort.
The neighbors have greeted his proposal with skepticism and dismay. Some of that probably results from the NIMBY reflex I’d be guilty of if a new, unanticipated activity was proposed for my neighborhood. But enough substantive questions were raised about the impact of the proposed camp to convince the Town Board that a moratorium was needed.

The moratorium is intended to give the town time to make sure its zoning laws match the goals of the town Comprehensive Plan. A committee has been working on that project for years and the moratorium gives the process new urgency. The moratorium is supposed to expire a year after its adoption, and then the town will have to consider new dirt-road projects like the tennis whether or not the board adopts new zoning laws.

The question is how to treat both Mr. Slone and his neighbors fairly. Keep in mind that this is a town election year, which makes getting things done even harder. Among the vexing issues facing the board is how to evaluate a claim of hardship. Must the board accept Mr. Slone’s argument that he spent over $100,000 pursuing this project before the moratorium took effect? He seems to believe that this entitles him to move forward unimpeded by restrictions that apply to everybody else who lives on a dirt road.

That’s a questionable premise for claiming a hardship. First, there are no guarantees when a government decision rests on an interpretation of the law. And an interpretation is precisely what Mr. Slone wants. But principle here is that you don’t get credit for a hardship that you created. Mr. Slone may be inconvenienced by the moratorium and his campers may have to wait for their chance to play tennis in Chatham, but is that a hardship created by the town or simply how municipalities operate?

And if the amount of money spent by an applicant is the determining factor, what’s the cut-off? If he’d spent less than $100,000 would it have been too little to deserve a hardship waiver? Is there a means test for hardship? Must you be able to lose $100,000 if you need a waiver?
Mr. Slone has a right to request a waiver because the Town Board included language authorizing hardship exemptions when the moratorium was authorized. What the board overlooked was the need for specific reasons to grant them. Big mistake.

The board could rectify that with an open debate followed by the adoption of a clear set of standards for determining what conditions must be met before a private citizen is granted permission to ignore the law. Such circumstances do exist, and they can and should be explained in plain English. The board can’t act on a hardship it can’t define, can it?

Based on the slim evidence of actual harm presented by Mr. Slone, the board could easily deny his request for a waiver. But in fairness, Mr. Slone should have the opportunity respond to specific hardship criteria.

Board members surely understand that whether they grant or deny the waiver, the decision is likely to be appealed, and no legal theories can predict how judges will rule. This vote is not about legal theories, it’s about public trust in the integrity of town law. And the Town Board has work to do before it’s ready to vote on that.

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