Lorna Mitchell moved to Lynde Street in Old Saybrook 39 years ago. On the street was a hairdresser and on the far corner where Lynde meets Route 1 was TJ’s restaurant and bar. In every other sense it was a residential neighborhood.
The same little houses, many of the same families. It was quiet.
“There was and is nothing to make noise,” Mitchell said at a zoning commission meeting in August when the character of the street seemed on a tipping point toward change. “We are suddenly going to have all these people moving in being able to look out their windows at our street which has always been private. How did this suddenly become commercial?”
But in reality, Lynde Street didn’t suddenly become commercial. In fact, Mitchell’s side of the street was zoned commercial in 1948 when zoning rules were first put in place in Old Saybrook, explained Christina Costa, who serves as the zoning enforcement officer for the town.
It simply took 70 years for a commercial project, like Hanford Commons, to be proposed and approved in the neighborhood. The mixed-use development on Lynde Street proposes to construct affordable housing, a restaurant, retail, as well as the required parking and lightning that usually accompanies commercial development.
“The houses that were there were probably in existence prior to the B2 zone being in place,” Costa said. “This results in houses and businesses becoming legally non-conforming. They are allowed to be there, but if you go to expand or intensify or change the use, such as residences seeking variances to put additions on their home, it will not be approved.”
Houses like Mitchell’s have been non-conforming for more than 70 years. Non-conforming not to what the character of the street was, but what the town planners back in 1948 thought the street could or should be.
“The purpose of zoning was to protect the town’s aesthetic, grow in certain areas and promote public health by separating uses,” Costa said. “The hope is that as properties turn over the town gradually grows to better match the zoning map.”
This hope, to the Strong Towns movement, is entirely backwards.
“There are two notions wrapped up in this. The hope that this place fails so badly that someone would come in and redevelop it. A success based on failure. From a regulatory standpoint we are saying we want these people to fail so that something good happens,” said Chuck Marohn, president and founder of Strong Towns, an influential nonprofit aimed to promot better planning of communities across the United States. “The hubris involved in saying that what is here is wrong and we know what is right.”
Marohn said he recommends that towns have the least amount of zoning regulations necessary, making the next increment or investment in a property or space as easy as possible.
“Cities are full of neighborhoods that have over time evolved and changed,” Marohn said. “It’s only modern Americans that somehow believe that we should prescribe what should be there and then when it meets that we think we’re done and now it’s perfect.”
The Lynde street example is far from unique.
“It’s common in every town,” Costa said. “We have homes that are in commercial areas, business areas, industrial zones and the opposite is true.”
Off of Shore Road in Old Lyme the opposite is true.
“In 2007 the town did a re-write of the zoning regulations and what they did was they included 18 properties that they changed from commercial to residential,” said Michael Barnes, a resident and real estate agent in Old Lyme. “They re-zoned half the road. The left side is still commercial, but the right side is now residential.”
And most of the business owners are completely unaware, said Barnes who lives and operates a business on the street. These landowners run businesses out of their homes and hold commercial mortgages, usually at higher rates than residential mortgages would be. As noncomforming businesses — the properties have less value and limited value as commercial property.
But in such cases whether the map should conform to the current reality or vice versa is a matter of debate.
“There are many mismatches between how land has historically been used and how it is zoned. Further, there are also mismatches between the future vision, and how it is zoned,” said Jason Vincent, the director of planning in Stonington. “We often get the worst-case scenario because we are not willing to have a conversation about anything – assuming an investment idea will go away, or worse, that the current zoning is correct. Contrary to popular belief zoning did not come from Mount Sinai.”
The decisions that were and are made when drawing out a zoning map may not reflect what residents want or even what is best for a town in 2019. The decisions are made by just a few people in just a few meetings and yet can have enormous, long-lasting impacts, Vincent said.
“Often, zoning reflects a 40-year old vision, the implications of which were never fully comprehended by the community,” Vincent said. “Look at the automobile bias that towns have perpetuated.”
In Mystic, the problem of non-conforming structures came to a head when the Mystic Seaport Museum wanted to expand in 2002, but Connecticut law limited the possibility of expanding the existing use of nonconforming structures.
In a report, Vincent detailed the challenges zoning poses for towns.
“This was preventing the Seaport from evolving as a tourist attraction,” Vincent wrote. “Zoning is a plan. However, it is not often thought of as such, but in Connecticut it is referred to as a comprehensive plan.”
A plan, not the law.
But the process to change that plan can be difficult.
“Property owners can come in and petition to amend the regulations or the map at a zoning commission meeting,” Costa said. “They can say ‘I think we should amend the regulations for a specific use and change the map etc.,’ and the zoning commission can go through and allow for that change or deny it.”
Some towns, like Groton, have reconsidered current zoning and redesignated areas that fail to conform.
“It is the responsibility of the town to think about rezoning,” said Jonathan Reiner, town planner for Groton. “For example, we realized that this zoning district near the sub-base in Groton had been in place for over 20 years, but it had barely been utilized, no development took place. There was either no demand in that area or the zoning we put in place doesn’t work for that area.”
Areas like that, Reiner said, need to be rezoned by the town.
“We had another special zoning district that was created and on the books for over a decade and never utilized so we know we need to do something to fix it and modify it,” Reiner said. “The only constant in life is change, we need to change zoning with the development patterns and expectations of people.”
If wholesale change is impossible, individual property owners can case-by-case ask for variances to sidestep zoned restrictions.
“There are, of course, opportunities to ask from relief on a case-by-case basis through variance applications, but an applicant has to prove a legal hardship – why a particular regulation or regulations should not apply to a particular piece of property, something that is unique to that property and to no others in the neighborhood,” said Torrance Downes, the deputy director and chief planner at the Lower Connecticut River Area Council of Governments. “Property owners will often offer that the hardship is that the regulations were applied after the construction of the structures and shouldn’t apply to these properties. But, that hardship would also apply to all or most of the other structures in the neighborhood. That means that claim of hardship is not unique to that property as those regulations affect the other properties in the neighborhood in the same restrictive way.”
Although in this case a Zoning Board of Appeals (ZBA) should not grant a variance, they often do, Downes said. This is especially common in the beach communities of every shoreline town as nearly every structure, lot and septic system is non-conforming.
“Any time someone comes in to propose the modification or rebuilding of a beach cottage, the first thought we have in town hall is, what nonconformities exist and are any of them proposed for expansion where variances will be required. And, there almost always are,” Downes said. “Our job as land use officials – in my opinion – is to talk them through ideas that would not require variances or reduce the number of variances that they might ask for. If a property owner has to ask for six or seven variances to accomplish a project, a legitimate question ZBA members might ask would be, perhaps this size project is not appropriate for this property if so many exceptions to the rules are required.”
There are cases, however, when brand new, non-conforming structures can be built — specifically structures that would typically reside in a commercial zone being constructed in a residential zone.
“Philanthropic, educational, recreational or religions non-residential use by a duly organized non-profit organization, non-profit corporation or governmental unit excluding correctional institutions and institutions for the insane,” can apply for a special permit to build in residential zones from the town of Old Lyme.
And the Roger Tory Peterson Estuary Center, a local affiliate of the state Audubon Society, is doing just that on 1.1 acre undeveloped lot on Ferry Road in Old Lyme.
The 3000-4000 square foot office building would be non-conforming on the residential road, but because of its educational and recreational purpose it may be permitted. The problem neighbors have is that according to zoning regulations in Old Lyme, “for uses of land other than single-family dwellings, all parking areas shall be illuminated to an average level of one-half foot-candle per square foot.”
In this case, just as in on Lynde Street, the relatively quiet, residential character may be about to change.