OLD LYME — Advocates of a plan to rewrite the town’s zoning rules for Halls Road have dismissed concerns that the proposed architectural and design guidelines are legally-binding or more than advisory — but that’s not what the proposed text says, according to several prominent land use attorneys who agreed to speak on and off the record.
“I think it’s absolutely plain as day that planning and zoning cannot approve a site plan or a special permit unless the design review committee approves the plans,” said one land use attorney, who asked to remain anonymous, after reviewing the proposed regulations. “No site plan/special permit… shall be approved, nor shall any structure be constructed… until they determine the Design Review Committee has approved it.”
According to standard legal usage, “shall” constitutes “an imperative command, usually indicating that certain actions are mandatory, and not permissive.”
But Jef Fasser, a landscape architect at BSC Group who helped write the village district application, said architectural guidelines were intended to be advisory.
“The intent of the design guidelines is that they would be used by a Design Review Committee to ADVISE the Zoning Commission on the elements in the guidelines for new construction and major reconstruction, and to be used by the Zoning Enforcement Official to ADVISE the Zoning Commission on minor alterations. The Zoning Commission has the final say regarding what would be requested by them for design elements,” he wrote in an email to CT Examiner.
According to Fasser, “these are guidelines not requirements, just guidelines. However, going through the design review process is a requirement.”
Fasser’s interpretation of the actual proposed language was not shared by Anika Singh Lemar, clinical professor of law at Yale Law School, who wrote in an email to CT Examiner that the proposed rules, by requiring a design approval, are actually inconsistent with state statute, which does say that the role of such a board should only be advisory.
“The state statute on village districts, with which this ordinance must be consistent, is pretty clear that the architectural review board’s report is advisory,” wrote Lemar.
Lemar’s reading of the law is starkly different from an explanation provided by Dan Bourret, a land use coordinator for Old Lyme, who has helped advise the Halls Road Improvements Committee.
According to Bourret, the proposed Architectural Design Review Board would have an advisory role similar to the Connecticut River Gateway Commission, which works to minimize the visual impact of development along the lower portion of the river.
“They provide recommendations and stuff like that, but the Zoning Commission can take those recommendations and either do more than that or do less than that — it’s their purview at that point. The Design Review Board would review the application based on the design guidelines and then make recommendations to the Zoning Commission and the Zoning Commission would make that determination at the hearing,” Bourret explained in a call to CT Examiner on Friday.
Bourret said the guidelines exist to make it possible to create a unified design based on the architecture of Lyme Street.
“The guidelines are there to try to give the Zoning Commission the tools because if you didn’t have any design guidelines, people can propose whatever they want,” Bourret told CT Examiner.
But according to John Guskowski, a principal at Tyche Planning and Policy Group, the new rules will have the force of zoning regulation, and the design language will be enforceable — though what exactly is being required is open to interpretation.
“The problem with design standards is it’s design — there’s a little bit of gray area — beauty is in the eye of the beholder,” he said.
But according to Guskowski, when it comes to architectural design, elements like use of materials, massing, facade, fenestration — insofar as they can be quantified and made objective — do have the force of zoning regulation.
According to the land use attorney, who requested anonymity, the vagueness of the proposed language, if approved, would expose the town to litigation.
“I think these guidelines are an invitation to litigation… They’re entirely subjective. Who decides that something is ‘in harmony with the guidelines?’ Who decides that something ‘preserves and enhances the beauty of the community, its historical integrity and architecture?’”
The lawyer said it was apparent what the writers of the proposals were intending to do and why, but questioned who would determine the meaning of phrases like,“the architecture should be influenced by traditional New England building forms.”
“The standards are fuzzy beyond belief, in my opinion. I don’t know how you can read this language and come to any other conclusion,” the lawyer said. “I would hate to represent a developer coming forward with a plan and have to satisfy these criteria because they’re not criteria — they’re just aspirations.”
On Thursday, CT Examiner asked Edie Twining, chair of the Halls Road Improvements Committee, about the enforceability of the proposed architectural design rules.
“They are guidelines not regulations,” said Twining unequivocally.
“It doesn’t mean that it completely excludes any other type of architecture beyond colonial or something like that. It just means that it will be reviewed by professionals who understand architecture more than lawyers who are working on the zoning board,” Twining said.
That review would be triggered for new construction, exterior renovations of existing buildings, and any substantial improvements to existing structures — a threshold defined in the regulations as improvements equaling or exceeding 30 percent of assessed value.
According to the proposed language, no site plan or special permit shall be approved without the approval of the design review committee.
Twining explained to CT Examiner that developers could still request variances and exceptions.
“It’s a set of regulations and if you want a variance from the regulation and you can prove some sort of hardship, then you can get your variance,” Twining explained to CT Examiner.
But according to Keith Ainsworth, a land use attorney in New Haven, proving that hardship would be difficult if it was related to design details.
“The standards to meet the hardship are really difficult. There has to be something to do with the property — the lot or the lay of the land — and design standards don’t really play into that,” Ainsworth explained.
Ainsworth said there was discretion on such regulations depending on how clearly the regulations have been drafted, and who is sitting on the land use boards.
“The point is that the regs can vary by town depending on what the town puts into it, and how it comes out of the sausage factory of regulation making. It can look very different in one town versus another. And it can be more enforceable and less enforceable depending on what set of language that they picked,” he said.
Ainsworth said that enforceability would also depend on whether an applicant wanted to appeal a variance or a decision regarding an exception in the courts.
Asked about the regulations, after writing a letter to the editor chastising CT Examiner for publishing an editorial highlighting the binding nature of the rules, Howard Margules, a member of the Halls Road Improvements Committee, admitted in a call that he was “not 100 percent sure” whether the architectural guidelines could be enforced as regulations.
Margules said that the committee received extensive input from the public that keeping the character of Old Lyme was the top priority for Halls Road, and that the application for the village district has been written to reflect that goal.
“Now, it may seem, I’m sure, to some people restrictive and that’s understandable. But what we’re trying to do is maintain the character so that we don’t want something built that’s too big, or the architecture doesn’t fit. The real question is, how do we effectively do that? And I think it’s still open. How we do it is up for discussion, but that’s the purpose,” he said.
Twining emphasized that the application was currently under revision. She also acknowledged that the proposed rules would be changed to remove the Florence Griswold Museum from the new rules.
According to Twining, the initial application deadline of 65 days could be extended by another 65 days, to address public concerns.
“This is not a done deal on November 8. The purpose of the Nov. 8 meeting is to get comments and suggestions and concerns from the public,” she said.