P&Z Changes Its Rules To Restrict Development Of Marginal Land

By Andrew Gorosko

Amid continuing rapid residential growth, the Planning and Zoning Commission (P&Z) has modified its zoning regulations to more strictly define what constitutes a building lot, thus potentially reducing the number of building lots that could be subdivided from properties in future development applications.

The controversial rule change is designed to curb the development of land of marginal quality for residential use. The P&Z’s action came just before 3 am on July 12, at the end of a P&Z session that had lasted 71/2 hours. The action followed the seventh of seven public hearings at the meeting, which included 10 agenda items.

A recent Connecticut Supreme Court decision, which upheld a strict New Milford land use regulation defining buildings lots, prompted P&Z members to tighten their zoning regulations on building lots without facing the prospect of a successful court challenge against such zoning rules changes.

Many area developers had submitted new residential subdivision applications to the town on July 10 and July 11 to ensure that their applications would be considered under the town’s previous, more liberal, building lot regulations. Those 10 subdivision applications total 106 lots on more than 320 acres throughout town.

In the past, in cases when the P&Z was on the verge of making its development rules stricter, developers also had submitted swarms of applications to beat deadlines for the rule changes.

The revised building lot regulations take effect on Sunday, July 21.

At the July 12 session, P&Z members voted 4-to-1 to tighten the definition of a building lot. Chairman Daniel Fogliano and members Lilla Dean, Robert Poulin ,and William O’Neil voted in favor of the changes. P&Z member James Boylan voted in opposition.

Mr Boylan initially had sought to abstain from voting, but Mr Fogliano told Mr Boylan he had to vote either in favor or against the measure, so Mr Boylan voted against it.

Mr Boylan said the P&Z’s consideration and action on the matter had occurred too quickly, pointing out that members were voting on the important matter at 3 o’clock in the morning, after a lengthy meeting.

Provisions

The revised definition of building lot approved by the P&Z provides that any building lot must contain an amount of useful land that is at least equal to the minimum lot size in acres for the land-use zone in which that lot is located. Typical lot sizes are one-acre, two-acre, and three-acre. Most local land with one-acre zoning already has been developed.

The rule changes are intended to exclude from the lot-size calculation any land that is wetlands, watercourses, floodplains, steeply-sloped, a private right-of-way leading to a rear lot, and areas that are less than 25 feet wide.

The wording of the new regulation, in essence, states that: Any lot created through subdivision or resubdivision shall contain an area of land that does not consist of wetlands, watercourses, FEMA (Federal Emergency Management Agency) 100-year floodplains, slopes of 25 percent or greater, a private right-of-way leading to the rear lot, or areas of the lot that are less than 25 feet wide, that is at least equal to the minimum lot area in acres for the zone in which the land is located.

In an initial rule change proposal, the P&Z had sought an even stricter definition of a building lot, which would have required that the useful land on a lot be “contiguous” or interconnected land. P&Z members later omitted the contiguity requirement because the Connecticut Supreme Court ruling, which upheld the New Milford land use regulation, did not address the issue of contiguity.

In stating their rationale for tightening the definition of a building lot, P&Z members decided that the rule change would enhance the remaining rural character of the town by balancing development and conservation interests.

Also, P&Z members decided that the rule change would preserve and protect natural resources by requiring that lots have adequate area that is relatively level and dry to suitably support home construction, as well as support domestic water wells and septic waste disposal systems.

The rule changes would protect natural resources that residents consider important to their quality of life, P&Z members decided.

P&Z members decided that the rule changes are consistent with the goals and objectives of the 1993 Town Plan of Conservation and Development.

The extent to which the revised regulations would reduce the building lot yield at a given site could vary widely, depending on the physical aspects of the individual property.

Discussion

The redefinition of what constitutes a building lot prompted intense, lengthy discussion in the early morning hours of the marathon P&Z session, with residents who feel threatened by continuing development arguing in favor of the changes, and developers and builders arguing against the stricter rules.

The public hearing on the rule change proposal started at 1:13 am and concluded at 2:37 am. After a discussion, P&Z members voted on the matter at 2:55 am.

Community Development Director Elizabeth Stocker said that in making the regulation changes, the P&Z would be using a “[building] lot definition as a planning tool.” Ms Stocker pointed out that the Connecticut Supreme Court recently upheld the Town of New Milford’s definition of a building lot as such a planning tool.

Mr Fogliano said, “”We’re not breaking new ground here.” The P&Z chairman said he started considering such a measure in 1999, and has been waiting since then for court decisions that uphold such rule changes, such as the recent court decision on New Milford land use rules.

“We’ve been looking at this [rule change] for years now. I’m glad we’re finally there,” the chairman said.

A past Danbury Superior Court decision, which had overturned the P&Z’s rejection of a nine-lot residential subdivision on Hanover Road, occurred because the P&Z did not then have a strict definition for building lots, according to Mr Fogliano.

In July 2001, a judge approved the McLachlan family’s plans to build a nine-lot residential development on a 16.5-acre site on Hanover Road in the borough. Judge Taggart D. Adams ruled that the P&Z had erred in June 2000, when it rejected the McLachlan family’s development proposal. The judge decided that the McLachlan application complies with the town’s resubdivision regulations. The site is notably steep and has wet areas.

Among people commenting on the P&Z’s proposal to more strictly define building lots, resident Rob Sibley of 195 Berkshire Road, a member of the town’s Open Space Task Force, told P&Z members he supports the rule change. Mr Sibley said the changes would encourage land conservation by helping to prevent the development of “marginal” lots.

Resident Helen Mills of 36 Pond Brook Road spoke in favor of the proposal, saying it would balance the interests of development and environmental protection. The measure would require building lots to have a reasonable amount of usable land, she said. “For the environment, this is the right thing to do,” she said.

In light of proposed residential development in their area, the P&Z’s public hearing attracted a number of Pond Brook Road residents, who spoke in favor of the rule change.

A Woodbury developer has proposed Pond Brook Estates, a 14-lot subdivision, which would contain 12 new houses, on 53 acres at 23 Pond Brook Road. The site contains steep slopes, extensive wetlands, a brook, a floodplain, a railbed, and other physically limiting features. The presence of those many limiting features has prompted the P&Z to seek outside expert advice on the sound development potential of the site.

Resident Marie Difilippantonio of 24 Pond Brook Road urged the P&Z to approve the rule changes.

Resident Gary Tannenbaum of 36 Pond Brook Road said the rule changes would ensure that building lots have sufficient usable land.

 Resident Jean Lewis of 7 Lake George Road voiced her endorsement of the rule change. In the past, an acre of land amounted to an acre of land, she said. With marginal land having been included in building lots, an acre no longer seems to equal an acre, she said.

Resident Gary Difilippantonio of 24 Pond Brook Road said the rule changes would help the town preserve and maintain its physical character. He urged their swift passage as a way to prevent the Pond Brook Estates development from occurring as proposed.

 Resident George Carlson of 19 Pond Brook Road also urged approval of the rule changes.

 Resident Eugene Cox of 31 Pond Brook Road asked P&Z members to support the measure, saying that the continuing destruction of wetlands would damage the environment.

Developers Take An Opposing View

People in the business of developing land, however, had a different view of the zoning rule changes.

Developer Al Cortina of Monroe asked what effect the rule changes would have on proposed development.

Mr Fogliano said that certain plans in progress for future residential development might be negated by the rule changes. Mr Fogliano referred Mr Cortina to the town land use office for specific answers to his questions about the implications of the rule changes.

Mary Beth Mayer of 52 Platts Hill Road, representing Eleanor Mayer, said Ms Mayer opposes the redefinition of a building lot, as well as other past rule changes, which are intended to slow residential growth. Eleanor Mayer, who is the real state business, owns large amounts of land locally and in area towns.

Mary Beth Mayer pointed out that the redefinition of a building lot is intended to reduce the potential number of locally developable lots. The change would penalize landowners who have not yet sold their land for development, and would reduce land values, she said.

“I think you sneak these [regulations] in,” Mary Beth Mayer said of the P&Z’s approach in changing the definition of a building lot. “You seem to spend a lot of time planning how to keep people out of town,” she said. Such rule changes take away the rights of individual landowners, she said.

“What you’re really trying to do is keep people out of town,” she said.

P&Z member Sten Wilson said the rule changes would enhance the value of local properties.

P&Z member Lilla Dean said, “Preservation of the environment is for all of us.” Local land would lose its value if area water quality were damaged, she said.

Attorney Robert Hall, representing himself, said the rule revisions could reduce the number of building lots that he might eventually obtain through the subdivision of his property on Huntingtown Road. “What’s the purpose of this regulation?” he asked.

Land use agencies are allowed to regulate development, not confiscate property rights, he said.

Local agencies, other than the P&Z, are empowered to address the issues that are covered by the revised rules, he said.

Mr Hall questioned the clarity of the rule revisions, saying that the P&Z needed to better state the definitions of the terms it uses, and asked how the rule changes could possibly be applied to areas with three-acre minimum residential zoning. “You’re creating problems for the three-acre zone,” he said.

Mr Hall also said there is no justification to require a subdivider to provide either two acres or three acres of buildable land on properties within two-acre and three-acre residential zones, respectively.

The attorney was especially critical of the P&Z’s initial proposal to require that the buildable area on a lot be “contiguous” land. Such contiguity of buildable land is not necessary on a lot within a two-acre zone, he said. The P&Z later dropped the contiguity aspect of its proposal.

Local developer and builder Kim Danziger said the revised rules would financially damage people because they would decrease land values. The reason for the revision does not concern public health, safety, and welfare, he said. The town has many restrictive development rules that have not yet slowed the pace of residential development, he added.

Local builder Mike Porco said the rule changes would devalue undeveloped properties by reducing the potential number of lots into which they could be subdivided.

Because the revised regulation is a zoning regulation, applicants could seek a variance from the Zoning Board of Appeals (ZBA) to circumvent the regulation, Mr Fogliano said.

Mr Hall pointed out that an applicant would need to demonstrate a legitimate “hardship” to the ZBA in order to receive such a zoning variance.

In the decade from 1990 to 2000, Newtown was one of the fastest growing communities in the state, with its population growing by more than 20 percent, to just over 25,000 residents.