The law or the dictionary?

By LIAM MAYO
Posted 11/16/21

UPPER DELAWARE REGION — The Upper Delaware Council (UDC) debated questions of home rule and substantial conformance at its Thursday, November 4 full council meeting.

The debate continued a …

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The law or the dictionary?

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UPPER DELAWARE REGION — The Upper Delaware Council (UDC) debated questions of home rule and substantial conformance at its Thursday, November 4 full council meeting.

The debate continued a back-and-forth ongoing between the National Park Service (NPS) and the UDC since January on the definition of substantial conformance.

As part of the body of rules that established the Upper Delaware Scenic and Recreational River, a working conservation partnership between local municipalities, the UDC and the NPS, the UDC reviews plans and development activities carried out by local municipalities to ensure that they are in substantial conformance with a number of conservation guidelines.

In January, former NPS planner Jennifer Claster appeared in an orientation video for a workbook involved in that process of review, and stated that for a project to be in substantial conformance it “must meet every principle and objective against which it is reviewed.”

The UDC didn’t agree with that definition, and passed a resolution in April to codify its disagreement.

“The issue centers on whether substantial conformance can be subjectively interpreted to indicate a 100 percent compliance requirement,” reads the UDC’s position on substantial conformance adopted by the resolution. “The UDC contends that this is not an appropriate definition of substantial.”

The issue lay dormant for several months, before the NPS responded with a letter answering the resolution, which superintendent Joe Salvatore brought to the UDC’s Thursday, November 4 meeting.

The NPS letter stated that the UDC’s resolution changed the definition of substantial conformance as stated in various pieces of legislation regulating the Upper Delaware. It stated that projects must conform to compatible uses, and that while there is flexibility in how, the UDC does not hold the authority to define substantial conformance.

While the letter bore Salvatore’s signature, he stated that much of its text had been composed by lawyers, and that he did not see an immediate issue. “It’s not a problem until its a problem,” he said. “And I don’t see it as a problem right now.”

The members of the UDC in attendance did not agree with that assessment.

“I though the letter was unacceptable, both in tone and in lack of clarity,” said Andy Boyar, alternate representative from Highland.

The April resolution had not changed the definition of substantial conformance, in the UDC’s view. Claster’s statement in the workbook orientation video had been incongruous with how the UDC had always defined substantial conformance, and the resolution had simply affirmed the UDC’s preexisting views.

“We didn’t want [Claster’s statement] to go along unchallenged,” said Shohola representative Aaron Robinson. “We felt this is the way it’s been done in the past, and we ought to put that in writing.”

Claster’s statement had gone against the common dictionary definition of substantial, said UDC chairperson and Damascus representative Jeffrey Dexter: “We stick with the dictionary.”

“I stick with the law,” replied Salvatore.

More fundamentally, taking substantial conformance to mean absolute conformance would strike at the principle of home rule, several UDC members said. No two towns or townships had the same local codes, or the same exact needs. There had to be flexibility in the process of review to accommodate each town’s individual requirements, flexibility that left the principle of home rule intact.

The UDC decided to defer further discussion of the issue to the next meeting of the project review committee, and to ask consultant Tom Shepstone to review the issue.

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