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OLD LYME — Complex differences between special permits and variances came to light at Tuesday night’s Zoning Commission meeting as commissioners and the public debated a potential text amendment to the town’s Tidal Waters Protection, section 4.3, that would restrict new construction to 100 feet from the coastal jurisdiction line, doubling the former 50-foot requirement.
One of the public’s biggest concerns centered on section 4.3.7 that stated “The Zoning Board of Appeals shall not grant a variance of this Section 4.3.7,” which meant decisions about properties near the town’s waterways and coastal areas would be restricted to the Zoning Commission. About 50 people attended the meeting.
Commission Chair Jane Cable emphasized the amendment was a “work in progress” and that “nothing is official until everyone has been heard from.”
She said that residents who seek a variance must prove a unique hardship that makes the property unusable otherwise. Residents who seek a special permit do not have to prove a hardship and could point to sea level rise, for example, as justification for protecting their properties by taking measures such as raising their structures.
“The point was … to be cautious about new building and we thought that rather force you to go to Zoning Board of Appeals and prove a hardship, which can be difficult in this circumstance, or move your building or somehow reduce your nonconformity, you could come to Zoning Commission and explain that, perhaps, your property is at a higher elevation and isn’t in danger, or whatever argument you’d like to make and not be forced to prove a hardship,” she said.
Cable said the amendment pertained to new construction, not existing construction. She also said it was not the intent of the Zoning Commission to render properties nonconforming.
Resident Michael Barnes said the text amendment gave the Zoning Commission more control over water-dependent uses.
“It almost seems that you guys are trying to gather more control. You don’t want the ZBA to have that ability to go around regulations, so you guys want to make a special exception so that way you guys have the ability to issue a special permit, which will allow you guys to have that discretion instead of the ZBA,” he said.
Commission Vice Chair Jane Marsh said the amendment did not change regulations on water-dependent uses, which are already regulated by the zoning ordinances.
“We’re just pulling back from the ZBA to this commission the right regulate these things instead using of the legal hardship process. If no legal hardship is found, you can’t do anything … The Zoning Commission can have a more nuanced approach,” she said. “The general purpose is to make it possible for people to come to this commission and make presentations without showing legal hardship and trying to offer some more flexibility to an applicant.”
Resident Ron Swaney, who owns 131 Shore Road where he is building a house, told the commission he objected to having his property called out in the press and in meetings as an example and as the catalyst for writing the text amendment.
“So what’s wrong with the Shore Road project? We’re having all this fuss about the Shore Road project, what seems to be the problem?” he asked.
Marsh said the commission thought the zoning regulation already included residential uses and that “none of us knew it went to ZBA.”
“All we saw was that there was construction on the property, so we asked the Zoning Enforcement Officer how that happened and the ZEO said his interpretation was that only water-dependent uses could come to the Zoning Commission and that all other applications would go to Zoning Board of Appeals,” she said. “It wasn’t that what we see or what you did on your property, it was that this commission believed we had authority with respect to properties in the tidal wetlands area.”
Basically, if every application goes the the ZBA, “you don’t have zoning regulations,” she said. “You have a situation where everyone is going to the ZBA for a special legal hardship and it isn’t regulated by the Zoning Commission at all,” she said. “So we didn’t understand, so all this drafting is to try to get both water dependent uses and other uses to be looked at by the same commission under the same standards, that’s the purpose of it,” she said.
The document may need changes and it was important to “get it to the way it needs to be,” but it had nothing to do with Swaney personally, she said.
“It’s nothing to do with picking on you, it was to do with getting the same commission to be reviewing all activities within the tidal wetlands under the same standards,” she said.
Nancy Hutchison, who is the chair of the Zoning Board of Appeals but spoke as a citizen, asked whether the commission needed to communicate more clearly with the Zoning Enforcement Officer rather than remove the option of applying for a variance with the ZBA.
“If you’re concerned that special permits should be coming to you that aren’t coming to you, is that about performance of ZEO?” Hutchison asked.
Cable said the present process is highly variable and the text amendment was intended to provide consistency to applicants.
‘If we put it under special permit process, then everyone would be considered under the same scheme,” she said. “We thought there could be a more well thought out, consistent scheme for hearing new structures within the 100 feet, not all over the map,” she said.
The public hearing was continued to the Zoning Commission’s next meeting on Nov. 12.