At September 9 meeting of the Town of Old Lyme Zoning Commission, board members introduced a text amendment – what board secretary Jane Marsh described as a “new philosophy” – to address “a trend of the coastline advancing on our town.”
This amendment would do two things:
- Increase the setback for new construction to 100 feet, doubling the current setback of 50 feet.
- Prohibit the Zoning Board of Appeals from granting a variance.
“Because that’s what the Zoning Board of Appeals is — it’s an individual, case-by-case basis. That might sound good but it results in a patchwork of outcomes,” said Jane Marsh. “So, some people get a yes and other people get a no. And that just doesn’t seem like the right way for a town that’s on the coastline with a lot of coastal development — we should be more deliberate about it.”
Zoning Chair Jane Cable, questioned the value of creating Tidal Waters Protection regulations if property owners could appeal for and be granted variances.
“Why work so hard to make a regulation only to have it varied?” asked Cable.
Pushback from other boards
This proposed text amendment has sparked strenuous opposition from the Town of Old Lyme Planning Commission, which voted unanimously that the change would be inconsistent with the Town Plan of Conservation and Development, and redundant given the existing Tide Waters Protection, Coastal Boundary, Flood Hazard Regulations and Coastal Zone Review. In an October 10 letter to Cable, the Planning Commission called the next text “in some parts unenforceable, arbitrary and contrary to what is considered established legal zoning practices.”
The text amendment sparked a rebuttal as well from the Town of Old Lyme Zoning Board of Appeals, given that the amendment was in part a reaction to variances granted by ZBA to the owner of 131 Shore Rd.
In a letter to the zoning commission, ZBA noted that the variances, which were approved unanimously, brought a nonconforming structure into FEMA compliance, reduced encroachment on tidal and coastal areas, and reduced non-conformity to tidal line and minimum setbacks.
ZBA also attached documents with comments received on September 7, 2016\, as part of a formal Department of Energy and Environmental Protection review, stating that “The application is to be commended for moving the new house further away from the southwestern tidal wetlands boundary to be located fully outside of the Velocity Flood Zone (VE14), the most dangerous of flood zones subject to direct wave action.”
To be sure, DEEP did express some concerns regarding the advisability of the retaining wall.
In addition, in an October 9 email to Cable Old Lyme Harbor Management Commission Chair Steven Ross requested that the zoning commission take no vote or action on the amendment prior to a November 12 meeting of OL HMC, asserting that the text changes regulate properties largely or entirely under the jurisdiction of his committee.
In the email, Ross also warned that the lack of referral to HMC could lead to a legal challenge that the approval process was faulty. He also urged the zoning commission to notify marine businesses and affected property owners.
As a rule, we are supportive of regulations that better address issues of coastal resiliency and water quality. It is also true that the remarkable vistas over the coastal salt marshes provide almost incalculable value to a region that takes great stock in its century-old embrace of the arts community and conservation. For these reasons, as a superficial matter, the proposed text amendment holds some appeal, and certainly should generate a useful conversation about coastal development and resiliency.
But in each case, in my view, the Planning Commission, Zoning Board of Appeals, and Harbor Management Commission raise substantial concerns which demand point-by-point rebuttal prior to approving or taking action on the proposed text amendment.
I would also encourage the public and the Zoning Commission to consider the following questions and concerns:
- Although it is true that in certain situations towns prohibit variances for use, for example prohibiting commercial use in a residential area, it is concerning that the text amendment may prohibit any reasonable use of some properties within the expanded 100-foot boundary, and that by prohibiting variances, the amendment would amount in such cases to an illegal taking.
- Because variances in effect act as ‘safety valves’ to protect towns from infringing on Fifth amendment rights prohibiting the seizure of property without compensation, has the commission considered instead limiting eligibility for a variance based on reasonable environmental standards?
- If the Zoning Commission feels it appropriate to set a higher standard for variances, could they clarify how this standard would differ from the process outlined by the Zoning Board of Appeals for 131 Shore Road. Specifically, what standard applied by ZBA was inadequate in the view of members of the Zoning Commission?
- Has the zoning commission evaluated the potential added liability to the town from the text amendment change, particularly in light of a June 2019 U.S. Supreme Court decision, Knick v. Township of Scott, Pennsylvania, which allows property owners to seek redress in the federal courts on the basis of Fifth amendment rights without first challenging a taking in state court?
- Inevitably, the possibility of illegal takings requires at the very least an opportunity for the public and board members to review a detailed map showing the revised boundary, and a clear list of properties affected. It also requires sufficient notice and opportunity for affected property owners to respond. To date each of these steps appears lacking.