Old Lyme Zoning Commission Continues Public Hearing on Controversial Tidal Setback Change

OLD LYME — Tonight, in an Old Lyme Zoning Commission meeting scheduled to start at 7:30 p.m. in Old Lyme Town Hall, the Commission has an agenda item to continue the Public Hearing for a Petition to amend Section 4.3 Tidal Waters Protection of the Old Lyme Zoning Regulations.  The Commission itself is the Petitioner.

Residential uses in these areas are subject to the existing regulations, and owners can apply for variances from the ZBA. [Sidebar: a variance may be granted in 2 situations: 1. a hardship, which is a unique property of the land that makes it equitable to vary the regs; and 2. a reduction of the property’s nonconformity – reduce a deck, move the structure, etc.] Jane M. feels that both sorts of properties should be subject to the same scheme of regulation and that a special permit process is fairer to the applicant than the variance process.

Right now, the western half of the town is subject to the CT River Gateway requirement of a 100’ setback from the CT River and tributaries; but variances can be given to residential properties. An audience member asked why we didn’t just set an elevation requirement, but both Jane and I feel that, as sea levels rise and FEMA makes new determinations, the regulations would have to be revised often to account for the changes. It makes sense that a property owner who wishes to engage in new construction presents the commission with the property’s elevation at the time of the application.”

Proposed new text of Section 4.3 of Tidal Waters Protection

It is declared that sea level rise and the tidal effects associated therewith are conditions that affect all coastal and riverfront properties in the Town of Old Lyme. Accordingly, no Building or other Structure, including drainage structures, septic systems, wells, and retaining walls, shall extend within less than 100 feet of the coastal jurisdiction line, as defined in Conn. Gen. Stat. Section 22a-359, of any tidal Watercourse or its associated wetlands without obtaining a Special Permit from the Zoning Commission in accordance with the provisions of Section 13B. 

4.3.1 Any Structures and/or Site Development authorized in this section must demonstrate consistency with the standards and purposes of Section 4.2 Coastal Boundary.

4.3.2 The Commission shall consider the impact of Section 4.4 Flood Hazard Regulations on any existing development, including potential increased and advancing flooding conditions and changes in flood mapping. All new development shall demonstrate full compliance with Section 4.4.

4.3.3 The Commission shall consider the impacts on surrounding properties, including visual obstruction of existing views and maintaining consistency with neighborhood characteristics. 

4.3.4 The Commission shall consider whether or not infrastructure such as access roads and utilities will be reasonably available under maximum flooding conditions and have backup utilities and plans for emergency evacuation.

4.3.5 The Commission shall consider the general impact of permitting development in flood prone areas and specifically any policies set forth in Old Lyme’s Plan of Conservation and Development.

4.3.6 A Special Permit shall be required for new construction, alteration or expansion of existing construction and any site improvements within the 100-foot setback.

4.3.7 The Zoning Board of Appeals shall not grant a variance of this Section 4.3.

We now follow with a series of letters published in date order, starting with one from the CT DEEP to the Old Lyme Zoning Commission in response to a request from the Commission for a review of the proposal.

Letter from the Connecticut Department of Energy & Environmental Protection to Old Lyme Zoning Commission, dated Aug. 5, 2019

Re: Proposed zoning text amendments to Section 4.3, Tidal Waters protection 

Dear Chairman Cable and Commissioners: 

Thank you for notifying this office of the proposed zoning regulation amendments noted above. Acting as the Commissioner‘s staff, our office has reviewed the amendments for consistency with the policies and standards of the Connecticut Coastal Management Act (CCMA), and DEEP has the following comments the Commission may wish to consider. 

First, DEEP would like to take this opportunity to applaud the Zoning Commission on this initial revision of Section 4.3 to increase protection of critical coastal resource management areas within the community and addressing the impacts of future sea level rise to people and property. In reviewing the proposed text amendments based on their text alone (i.e., without any background support documentation), DEEP has noted a number of positive attributes and some potential concerns which may need consideration or clarification. We hope these comments will help strengthen the proposed revision of section 4.3 of the town‘s local zoning regulations. 

Positive Features of the Proposed Zoning Text Amendments: 

• Will increase the minimum setback and associated protection of sensitive coastal resources by requiring a 100-foot, rather than the existing 50-foot buffer from the coastal jurisdiction line;
• Will provide the Zoning Commission more control over development in coastal resource areas;
• Will restrict the circumvention of the requirements of Section 4.3 by an applicant since the changes would prohibit the Zoning Board of Appeals from granting a variance from compliance with this section of the zoning regulations;
• Will place more emphasis on compliance with local floodplain management regulations for construction in coastal resource areas, and the need for dry access; and
• Will require a Special Permit for any type of construction or development within the revised 100 foot setback area – no exemptions or exceptions would be allowed. 

Potential Concerns with the Proposed Zoning Text Amendments: 

Many of the specific proposed text amendments have implications that the Commission may want to consider and perhaps revise to ensure that the purposes of the revisions to Section 4.3 are met: 

• Text in the first paragraph of section 4.3 is somewhat confusing, since coastal wetlands are not delineated by the coastal jurisdiction line. If the Commission wishes to establish a setback from tidal wetlands, we suggest that, along with the citation of Section 22a-359, the text should also cite Section 22a-29 for the definition of a tidal wetland.
• Section 4.3.2 would benefit from additional clarification as to the intent of the new language. It is unclear as to what is truly meant by the first sentence, and how all existing development would comply with Section 4.4. Does this only mean existing development that would now be located within this new 100-foot setback area? How would this pertain to existing development if the need for a special permit arises for the installation of drainage structures, wells, septic system upgrades, etc. for the functioning of an existing residence that would require this upgrade to be located within the proposed 100-foot setback? Has the Commission considered potential situations for which a Special Permit associated with an existing residence might be denied?
• Section 4.3.3 discusses the consideration the Commission must make with respect to impacts to surrounding properties and neighborhood characteristics. However, the set of specific criteria that will guide the Zoning Commission’s decisions on this issue is not included or referred to in the proposed text amendments. Without specific criteria this requirement may unfairly and negatively impact an applicant that would want to develop a new residence on his/her property which otherwise complies with all requirements of Sections 4.3, 4.4, and 4.10.3. This may result in a potential exclusionary situation for applicants, who would have no relief through an appeal process. How will the Commission ensure that a “level playing field” has been created for all applicants given that the Special Permit process will be required for any construction, whether it be for a water-dependent use, upgrades to drainage, septic systems, walls, etc., or new construction of a residence?
• In section 4.3.4, the term “reasonably” is used – what are the specific criteria that Commissioners would use in order to determine a proposed development has been planned with reasonable protective measures? No specific criteria have been included or referred to in the amendment.
• In section 4.3.5, it refers to the requirement that the Commission shall consider permitting in flood prone areas and any policies specified in the community’s POCD. The current version of this document is somewhat general with respect to specific floodplain development policies and recommendations with respect to future development in coastal resource areas. How will the Commission move forward to consider the general impact from a development with respect to any policies set forth in the POCD? What are the specific policies, as presented in the local POCD, which the Commission will use in their consideration of a new development? In addition, this statement appears to focus on a larger area, the community’s delineated Special Flood Hazard Areas (SFHA) as defined by FEMA or any area not delineated as a SFHA but is currently prone to flooding, rather than within the newly proposed 100-foot setback area.
• The proposed text amendments are silent with respect to water-dependent uses and their construction and existence within the 100-foot setback area. This is a major change from what is stated in the existing text of Section 4.3. As presented, it is unclear as to whether the proposed zoning text changes are consistent with the goals and policies of the CCMA due to the issue of water dependent uses, their need for construction in the 100-foot setback area, and the prohibition of obtaining a variance from strict compliance from the proposed requirements. Accordingly, clarification as to how water dependent uses will be treated with respect to Section 4.3 should be considered.
  
• Other uses as well as the proposed prohibition of a variance from any portion of the newly revised zoning section may have legal implications with respect to water-dependent uses, since it does not allow an applicant any form of relief or the ability to appeal a decision by the Commission except to Superior Court. It is unknown whether the Commission has studied the effect such a prohibition would have on any unusual existing situations in which a variance from the regulation may be warranted. The Commission may want to have the town’s legal counsel review the proposed text amendments to identify potential legal issues that may arise if an applicant chose to challenge the this prohibition from the receipt of a variance or lack of an appropriate appeal process.
• The proposed revisions do not discuss the Connecticut River Gateway Conservation Zone or make reference to the specific purposes for the creation of this conservation zone. It is unclear as to whether the proposed setback increase from 50-feet to 100-feet makes this existing conservation zone redundant, or whether as defined in the first paragraph of the proposed text amendments, it is a greater setback than the defined setback of the Connecticut River Gateway Conservation Zone.
• Finally, the proposed text changes remove the reference to section 4.10.3, Connecticut River Setbacks, of the local zoning regulations. The Commission may want to reconsider this omission from section 4.3. 

Please be advised that this consistency determination was based on coastal management considerations only, and does not necessarily reflect other municipal planning and zoning considerations that may apply. These comments are made in response to the review requirement contained in Section 22a-104(e) of the Connecticut General Statutes, which requires that notification be sent to the Commissioner of Energy and Environmental Protection at least 35 days prior to the commencement of the public hearing. Once notified, our office is responsible for reviewing the proposal’s consistency with the policies of Section 22a-92 and the criteria of Section 22a-102(b) of the CCMA. 

Should you have any questions regarding this letter, please feel free to contact me at (860) 424-3779 or by email at [email protected]. 

Karen A. Michaels
Environmental Analyst III Land and Water Resources Division

The Planning Commission discussed the proposed new text to Section 4.3 Tidal Waters Protection, and voted unanimously to determine that the proposed Text Amendment to Section 4.3 is NOT consistent with the Town’s Plan of Conservation and Development.  The members of the Planning Commission feel that the proposed text is redundant and that the existing Zoning Regulations, including the existing Tidal Waters Protection, Coastal Boundary, Flood Hazard Regulations and Conservation Zone Review – Gateway provide substantial regulation of the Town’s coastal areas.  Further, we feel the new text is over reaching, in some parts unenforceable, arbitrary and contrary to what is considered established legal zoning practices. Our objections and reasons for finding this amendment inconsistent with the Plan of Conservation and Development, include but are not limited to the following: 

In the 2017 update to the Plan of Conservation and Development, the Commission included the following: “Where applicable, the Town and the implementation of zoning regulations and review of Coastal Management Act, Connecticut General Statutes Section 22a-90 et seq., should balance the private property ownership rights of individuals who live in coastal areas with resource protection, and improvement where possible, for features such as areas with fragile tidal marshes, flood plains, beaches, dunes and other areas that are protected.  The Town’s shoreline/beach communities and neighborhoods are a major economic driver of the Town of Old Lyme. Those communities are the most at risk of the threats of sea level rise.  

As the sea levels rise, property owners should be allowed to take reasonable measures as specified above to protect their properties through the adaption measures specified above, including elevating their homes and/or construction of living shorelines and living shorelines incorporating stone.”  This amendment completely tips the scale toward coastal resources protection (or over protection) and minimizes any consideration of private property rights.  

This proposal appears to change numerous properties from conforming to non-conforming. This has the effect of diminishing property rights or possibly eliminating the right to use completely.  Many municipalities apply a 50-foot setback from the Tidal Wetlands, which is the norm and should not be extended without justification.   

Property values would also be diminished by changing many properties to non-conforming. This change is being proposed with no compensation.  Also, it provides an argument for owners to appeal property assessments due to reduced value. This will have a negative impact on the Town’s Grand List total.  Our waterfront and water proximity lots are a key to the Town’s Grand List and should not be unreasonably restricted in use or value.   

Prohibiting application for a variance is certain to be challenged legally. This is a major overreach of authority by the Zoning Commission and an affront to the process where a property owner can seek relief based upon hardship or exceptional difficulty.  This appears to be an overreach of authority and lack of concern for property owner rights. 

Proposed Section 4.3.3 gives the Zoning Commission subjective judgement that is arbitrary and without ascertainable standards. 

The regulation asks the Zoning Commission to consider “potential increased and advanced flooding conditions.”  This standard requires the Zoning Commission to try to predict future flooding patterns, which will be a very difficult standard to meet. 

The regulations also require that the Zoning Commission to consider “consistency with neighborhood characteristics.” This is wide open for Zoning Commission interpretation and personal likes and dislikes. There is no real consistency or specific criteria in the shoreline properties to use as a baseline; they vary considerably in size, style, height, color, construction, siding and roof types, etc.  We believe this is another example of disregard for property owner rights.  There is no relief for the property owner in this process.

The proposal would also severely limit or exclude any changes and/or improvements at all the commercial marine businesses. This is contrary to economic development and overly restrictive of an already highly regulated industry.  Again, looking toward the Town development, marine businesses are crucial to boating and tourism – two major aspects of our Town economy.  

Further, the Planning Commission commented on the letter from Karen A. Michaels, Environmental Analyst III at DEEP in support of the amendment.  We have learned that Ms. Michaels did not copy, review or discuss this letter to either Brian Golembiewski at DEEP who typically reviews such letters before their submission, nor Brian Thompson, Director of LIS Programs at DEEP.  In fact, neither of them was aware of the letter until a month after it had been sent to the Zoning Commission and released to the press (CT Examiner). This is highly irregular and against procedure at DEEP. When contacted to ask if this letter represented an official position of the DEEP.  Mr. Bryan Thompson did not take a position. Harold Thompson, Chairman of the Old Lyme Planning Commission contacted Bryan Thompson to ask if the letter represented the position of the DEEP. Bryan Thompson stated that he had read the letter within hour of receiving the phone call from Harold Thompson and he stated that he would not comment on the letter until he had an opportunity to review the letter in more detail.  To date we have heard nothing more. 

The letter from Ms. Michaels, DEEP, to the Old Lyme Zoning Commission on August 5, 2019, did address a number of concerns that the Planning Commission believes should also be addressed for this proposed revision.  

The proposed amendment, as written, appears to have been drafted with a narrow focus.  The proposed revision failed to review possible consequences of this revision beyond the original intent of revising Section 4.3 of the Old Lyme Zoning Commission Regulations.  

The Planning Commission feels this proposed amendment is not consistent with the Town Plan of Conservation and Development and existing Section 4.3 provides adequate protection provided in existing State and local regulations.

The ZBA hopes the Zoning Commission and the public finds this information helpful.

Date: Oct. 10, 2019
Subject: Information Related to Proposed Amendment to Section 4.3. 

Thank you for copying the Old Lyme Zoning Board of Appeals (ZBA) on the proposed amendment to Old Lyme Zoning Regulations Section 4.3. The ZBA learned via a news article that part of the genesis of the proposed amendment may have been due to a concern about “variances granted” at 131 Shore Road ( https://ctexaminer.com/2019/09/10/old-lyme-zoning-commission-proposes-limits-on- waterfront-building/ ). Therefore, to support the Zoning Commission in making a fully informed decision regarding the proposed amendment, the ZBA is providing a fact-based summary of the variance application for 131 Shore Rd. Please read this note into the record at the public hearing and add attachments into the record.

➢ The original dwelling at 131 Shore Rd, built in 1976, had multiple legal pre-existing non- conformities, including its location within 50 feet of regulated tidal wetland and within the 100- foot setback for CT River Gateway “Conservation Zone”. 

➢ The original dwelling also spanned two coastal flood zones: the more dangerous VE flood zone (wave action greater than 3 feet) and the AE flood zone (wave action less than 3 feet); thus, any renovation exceeding 50% fair market value of the structure required it be elevated and comply with applicable FEMA requirements.

➢ The applicants proposed replacing the original dwelling with a FEMA-compliant dwelling in a more conforming location: outside the 50-foot tidal wetland restriction and 29 feet farther from CT River tidal wetlands. The more conforming location would also be outside the more dangerous VE Coastal flood zone.

➢ The Zoning Enforcement Officer, in his capacity as agent of the Zoning Commission, determined the only variances required were to the 100-ft CT River Gateway “Conservation Zone” setback: Section 4.3.1 and 4.10.3. After its review, the CT River Gateway Commission stated they would not oppose the granting of the variances with certain conditions.

➢ After reviewing the CAM Application, CT-DEEP supported relocating the dwelling landward, beyond the VE Flood Zone. CT-DEEP also suggested the applicant voluntarily build to more stringent VE-flood zone standards, as it is not currently required by either FEMA or the Old Lyme Zoning Regulations. Recommendations that were incorporated included planting riparian buffer.

➢ In alignment with CT River Gateway and CT-DEEP feedback, and with all requests from CT River Gateway Commission added as “Conditions”, the ZBA granted only the requested variances (Sections 4.3.1 & 4.10.3), due to increased safety of a more landward FEMA-compliant dwelling; reduced encroachment into tidal and coastal areas; and reductions in pre-existing non- conformities. 

➢ Attachments: 2016 Property Record Card; Aug2016 Zoning Compliance Permit Application with 

Health Approval and ZEO Compliance Report; Variance Application; CAM Application; Letters from CT River Gateway Commission and CT-DEEP; Sep2016 ZBA Variance granted; an Aug2019 Zoning Permit denoting the ZEO’s independent authorization of fill and retaining wall revisions. 

Please note, the ZBA cannot vary a requirement for a Special Permit, including that required for accessory structures located within 50-feet of a regulated tidal wetland per current Section 4.3, or any new requirements for Special Permits in the proposed amendment to Section 4.3.

Subject:  Section 4.3 Proposed Amendment.

I am providing these comments as a private citizen with 5-years’ experience involved CT Land Use and having completed numerous UConn CLEAR, CT Bar Association, and CAZEO training programs related to CT Land Use and Zoning Enforcement.  These comments are not being provided on behalf of any Old Lyme Land Use Board or Commission or in my capacity as a member of such Board or Commission.  

Also, as I am not an attorney, I will not attempt to address potential legal considerations related to the proposed amendments, and simply request that the Zoning Commission’s Legal Counsel provide a review in that regard, particularly with respect to the legal concerns raised by the Planning Commission and CT-DEEP. 

Please know that the considerations offered below are intended to support the Zoning Commission’s effort to protect Old Lyme’s tidal and coastal resources, while also protecting public health, safety and property, in anticipation of predicted sea level rise and in alignment with Old Lyme’s Plan of Conservation and Development.

• Elevation vs Distance:  If the objective is to both protect vulnerable tidal/coastal areas and protect public safety and property in anticipation of sea level rise, would a more useful increase in proposed protection be related to elevation rather than linear distance?  For example, rather than increasing the linear distance of prohibited construction from 50 feet to 100 feet from regulated tidal wetlands (which depending upon local topography may or may not be relevant to sea level rise), consider relating the prohibition (or Special Permit requirement) to structures contiguous to AND within a specified vertical elevation of regulated tidal wetlands (e.g.:  NAVD88). The exact elevation could potentially be linked to either the sea level rise predicted by a relevant organization or regulatory body by a specific date, or a specific number of feet.  
• AE vs VE coastal flood zone requirements:  In at least some AE Coastal Flood Zones, consider revising the Coastal Flood Zone regulations to require construction meet the more stringent VE Coastal Flood Zone requirements (as often recommended by CT-DEEP); e.g.: AE Coastal Flood Zones that are contiguous to and within X feet elevation of VE Coastal Flood Zones or regulated tidal wetlands.  Adding these requirements may have several potential benefits: 1) preventing the use of “fill” to elevate structures to meet FEMA compliance near these highly sensitive areas (“fill” elevation is allowed in AE, but not VE, Flood Zones), 2) improving public safety by elevating construction standards in highly vulnerable areas; and 3) potentially increasing the Town’s NFIP Community Rating System (CRS) credits, which may help lower the Town’s NFIP flood insurance premiums, especially if combined with an increase in required free-board from 1 to 2 feet.  
• Limit Enclosure of areas below Base Flood Elevation (BFE):  Consider limiting the area below Base Flood Elevation (BFE) that can be enclosed with “breakaway walls”, in accordance with FEMA VE Flood Zone recommendations, but not requirements.  This may help to reduce “obstructions” and “floating debris” during a flood; facilitate the ability to enforce the use of areas below BFE to only limited storage and parking; and has the potential increase the Town’s NFIP CRS credits and reduce flood insurance premiums.
• Maximum Height and FEMA Requirements:  Consider revising the maximum height regulations within the R-10 district to allow up to an extra 10-12 feet – solely to the extent necessary to elevate a dwelling (existing or reconstructed) to meet Coastal Flood Zone requirements (including the required Free Board).  This would improve public safety by facilitating the ability of applicants to comply with Coastal Flood Zone requirements – assuming no other increases in zoning non-conformity.  Variances should still be required if the plan would result in any other increases in non-conformity; and a Special Permit may also be required, for example, when the elevated dwelling is located on a non-conforming R-10 lot (Section 9.1.3.2).     
• Unintended consequence of removing Section 4.3 prohibitions:  It is possible that by removing prohibitions for new construction, other than marine facility or accessory structure per Special Permit, within 50 or 100 feet of tidal wetlands (depending upon whether outside or within the CT River Gateway “Conservation Zone”, respectively) and replacing them exclusively with a requirement for a Special Permit, that the Commission may inadvertently be making it easier for construction of new dwellings or other uses in these sensitive coastal areas.  Unlike prohibitions, which can only be varied upon demonstration of a legal hardship or, in some instances, when an overall reduction in legal pre-existing non-conformities are proposed/agreed, Special Permits must be approved if the permitted use meets the specific criteria defined in the Zoning Regulations – however they are defined.  Under the current Section 4.3, Special Permits are only allowed for marine facilities or accessory structures; however, under the proposed amendment to Section 4.3, a permitted use by Special Permit within 50 or 100 feet of tidal wetlands is expanded because the prohibition of non-marine or non-accessory uses has been removed.  Of note, a change to Section 4.3 also impacts Section 4.2.13 Construction or Enlargement of Certain Buildings Adjoining Coastal Resources, because that section also refers to regulated Tidal Wetlands and defines an exception based on Section 4.3.
• Variance, Special Permit & CAM Applications:  Consider opportunities to improve the process and communication between applicants, ZEO and Boards/Commission in situations where an application requires a both a variance and a Special Permit (see Section 13B.4.2), including requiring the ZEO to denote on the Zoning Compliance Permit Application and on his Compliance Table when a Special Permit will be required – in addition to a variance.  Also, in situations where an application requires a variance, a Special Permit, AND a Municipal Coastal Site Plan Review Application (CAM application), consider recommending that the CAM application be reviewed as part of the Special Permit review, such that the Zoning Board of Appeals may condition its variance approval on approval of the CAM application by the Board/Commission performing the Special Permit review.  This would allow the CAM review to occur with the full complement of more detailed information required for a Special Permit application, and reduce potential conflicts between variance and Special Permit reviews.   
• Interpretations based on Flood Zone elevations:  It may be helpful for the Zoning Commission to clarify how the application of standard zoning regulations are affected (or not) when a dwelling is being elevated to comply with Flood Zone requirements.  Of note, a homeowner is required to elevate their home if planned renovations exceed 50% of the fair market value of the structure in a flood zone.  Several areas where there appears to be some ambiguity in enforcement include:
  • whether FEMA elevation meets the definition of “Enlargement” per definition Section 3.57: “Any addition to the Floor Area or volume of an existing Building, and increase in the size of any other Structure, or an increase in that portion of a tract of land occupied and existing Use.”  Specifically, whether the area below base flood elevation, which can only be used for limited storage and parking, is an increase in “volume” of the dwelling even though it does not count as Floor Area. 
  • whether FEMA elevation meets the definition of increased “Bulk” per Section 3.25 (even if the area under BFE is not enclosed); thus, whether elevation of an existing home that encroaches into a property line setback results in an increase in non-conformity due to increased “Bulk” in the setback.  
• Enforcement of Zoning Regulations:  If the Zoning Commission is concerned that some regulations are not being adequately enforced, particularly requirements for Special Permits, it may be helpful to enhance your oversight of the Zoning Enforcement Officer’s enforcement performance – recognizing that the ZEO acts as an Agent of the Zoning Commission – to ensure all zoning regulations are consistently enforced as written.

I hope you find these suggested considerations helpful as you evaluate potential regulation amendments.  

Opposition to the amendment has been unanimous from other town boards and commissions and the public. We did not hear any of the approximately 100 people who attended the public hearing speak or give an indication they are in favor of it. We recommend that you withdraw the proposed amendment.

Please read this letter into the record at the next public hearing.