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MADISON – A proposal to expand the areas in town where developers can apply to build projects outside of current zoning rules was rejected by the Planning and Zoning Commission on Thursday night after facing overwhelming opposition in a public hearing.
The proposal would have expanded where developers could apply for “Planned Development Districts” – which are meant to give developers more flexibility to design projects that don’t fit the zoning requirements of a particular area.
The new regulations would have included town-owned property, agricultural land, land along Interstate 95, land within 400 feet of the commercial district, or land “currently devoted to non-conforming uses adjacent to residential uses.”
The proposal was met with a mountain of opposition during a more than three-hour public hearing where nearly every resident who spoke urged the commission to reject the application, or at least to gather more information and carefully consider the impact of making the changes.
Many shared concerns with overdevelopment in Madison, which they believed the new rules would only make worse.
Attorney Marjorie Shansky, who presented herself as a friend of the court, tried to assuage concerns that she said were misguided, noting that the approval process for a Planned Development District would still give the Planning and Zoning commission board discretion to reject or approve any application.
“The inherent safeguard is that it goes to the Commission’s legislative authority, which is the hardest nut [for a developer] to crack [on appeal],” Shansky said. “[The commission] can say no for a good reason, or a bad reason – just not an arbitrary reason.”
Shansky, said she was not representing the applicant Frasher Lulaj, who was seeking the change in his second attempt to gain zoning approval to open a year-round restaurant in the Madison Winter Club. But she defended the proposed regulations throughout the hearing, drawing questions about the nature of her involvement from both the public and from commissioners.
Ultimately the commission decided an application meant to pave the way for one development wasn’t the proper way to go about making the changes, especially as it takes on developing a new Plan of Conservation and Development and a rewrite of its zoning codes.
Some also questioned the wisdom of putting so much power in the hands of the commission – which has drawn public anger over unpopular decisions in the past, and has not had a full complement of nine regular members and three alternates since three members were replaced and two more resigned in protest last December.
“We could have a quorum of four people, and then four people on the commission then with their unfettered discretion, could make a considerable change to the use of land,” Commissioner Ron Bodinson said. “I for one don’t think we should accept that additional power. It just seems too dangerous to me.”
Where did the idea come from?
Lulaj’s first attempt to gain approval to open a year-round restaurant in the Winter Club was rejected by the commission in a 3-3 tie in May, with some commissioners concerned that allowing a restaurant in the residential-zoned property could lead to other residential properties applying for similar uses down the line. There wasn’t opposition to the idea of a restaurant in the Winter Club, but with the process.
Lulaj’s attorney Jeffrey Beatty said that he approached Town Planner Erin Mannix after the rejection to try to discuss a way forward, and Mannix recommended broadening where “Planned Development Districts” are allowed in town.
Mannix told the commission Madison’s PDD regulations only applied to two properties in town, while other towns apply it more broadly. She said she worked with Beatty on drafting a regulation change, and brought in Shansky because she was involved in Madison originally adding PDDs to its regulations in 2019, before Mannix was Town Planner.
Mannix said she also spoke with Madison resident and land use attorney Chris McKeon in developing the regulations. Commissioner Ron Bodinson questioned the decision to consult Shansky and McKeon, considering both have represented developers in Madison and other towns – though both insisted they are not currently working with anyone who has plans to apply for a new PDD.
Shansky said the areas chosen to expand the possibility of PDD applications to – including town-owned property, agricultural land, and land along Interstate 95 – were based on a discussion former Town Planner David Anderson had with the commission in 2020 about nearly 30 properties that he believed could be opportunities for redevelopment through a PDD.
Mannix said the reference to “town owned property” wasn’t about parks or open space – a concern that sparked some of the public opposition. She said the town owns other facilities and properties that could be sold to developers.
“The rigidity of Euclidean zoning”
Shansky, a land-use attorney who frequently represents applicants before zoning commissions along the shoreline, and who teaches land use law part time at Quinnipiac and Yale universities, said that Planned Development Districts allow flexibility within the “Euclidean” zoning system that separates municipalities into districts with prescribed uses – like residential, commercial, or industrial.
“The ‘gifts’ of Euclidean zoning are urban sprawl and the uncontrolled consumption of greenfields for development, in the absence of population growth to support that development,” Shansky said. “Because of the segregation of uses that Euclidean zoning has fostered, that is the situation that it created.”
Shanksy said PDDs are a flexible tool that overcomes the rigidity of zoning districts, and restrictions like setbacks and height restrictions that come with them. She said Madison is 94 percent single-family homes on single lots, which is “a tremendously environmentally excessive way to do landscape development.”
A PDD is a two-step process. A developer comes to the commission with a master plan for a development that wouldn’t be allowed on a particular piece of land, and asks for the commission to approve the plan, and re-zone the property into a PDD where that development would be allowed.
The PDD comes with a set of regulations unique to that property, which would allow the developer to build its planned development. If the commission approves that, the developer comes back to the commission for final approval of a site plan for the development.
Shansky said the decision of whether to approve a PDD comes from the commission’s “legislative” authority, which means it has broad authority to reject or allow one for almost any reason – a discretion that courts have upheld, she said. A property with a PDD is also still subject to the town’s inland wetlands regulations, she said.
“You do not lose your discretion to say, ‘no,’” Shansky said. “And people who take an appeal of that are largely disappointed at the courthouse door, because courts recognize and defer to the legislative discretion of a land use commission.”
Keith Ainsworth, an attorney representing the Madison Land Trust in opposition to the proposal, said that developers like PDDs not because they correct the ills of Euclidean zoning, but because they take third parties out of the equation. Under normal zoning, there are three parties – the commission, the applicant or developer, and “those neighbors and pesky intervenors,” he said.
“What a PDD does is somewhat insidious. It gives all the power to the commission,” Ainsworth said. “And because you have unfettered discretion to pass the map change, that can’t be effectively appealed. So suddenly your neighbors are powerless to appeal.”
PDDs have been upheld by the Supreme Court as a legal development tool, but the danger is that they put all the power in the hands of the commission, Ainsworth said. That means the town needs to trust the commission to make the right decision, without appropriate checks and balances.
“If you remember, not long ago, we had a commission that was running freight trains through the town,” Ainsworth said. “If an application came in, they had a lot of fun with the small, cluster development, and shutting people down by tweaking it just so it would fit for the developer. And you had people coming in and speaking very passionately about trying to protect what Madison is, and they really had a limited voice.”