Op-Ed: The Future of Zoning

Editor’s Notes: i) This op-ed was submitted by Eric Knapp, who is employed as the Town of Old Lyme’s Land Use Coordinator. He is writing here as a private citizen.
ii) This is the opinion of Eric Knapp.

Zoning in Connecticut is 100-years-old this year. West Hartford was the first town in the State to adopt zoning regulations in 1924. The practice did not make its way to this part of the shoreline until the post-war (World War II) period, when the federal government undertook a concerted effort to promote home ownership for white families. For most of the towns in this area, the adoption of zoning came well after the development of the immediate shoreline areas. How this was addressed—or not addressed—is something I will explore later in the essay.

It seems apparent, at least to me, that the concept of zoning is starting to show its age, and increasingly, it is a poor fit to address issues such as the Americans with Disabilities Act or flood zone requirements. What is not so clear is where to go from here.

From the very beginning, zoning was always a suburban conceit. The idea that residences should be separated from businesses, and both should be separated from industrial uses stems from the very idea that suburban residents want quiet, well-tended neighborhoods, and less desirable uses should be concentrated elsewhere. 

This never really made sense in rural areas, where people lived on properties, which doubled as their place of work, and frequently where they sold their products. The fact that the work was odiferous and made noises at early hours hardly bothered the neighbors. Since they were probably engaged in the same activities and were sufficiently far away, it hardly mattered.

In urban areas, there was a long tradition of living over storefronts. Many of Connecticut’s cities developed as “company towns”, where workers lived close enough to arrive on foot and shopped at the company store. Trying to separate out uses made little sense. To get a sense of what this looks like in practice, look at the New Haven Zoning Map, where there are individual “planned development districts” by the dozen, in sizes that would be considered “spot zoning”, if that were a real thing these days.

In the suburbs, though, people still want to limit their neighbors’ activities. [Zoning is always about what your neighbor can do. You should be able to do whatever you want, of course. (Please note, that this is meant tongue in cheek — zoning applies to everyone equally. I am not suggesting that anyone should be able to act with impunity.)]

The relatively late arrival of zoning meant that other tools served that purpose for decades. There are a profusion of associations, some granted powers by special act of the General Assembly. Each one comes with its own rules and rights, all of which must be enforced, but not by the local zoning enforcement officer, much to the confusion and dismay of some residents. (See “hammer laws” for details.) There are boroughs, and fire districts, a “city” and historic districts.

The diffusion of responsibilities and roles gives lie to the idea that we have only 169 municipalities.

A problem that has existed since the adoption of zoning locally is that the shoreline areas were divided into very small lots. The smallest “standard” zoning lot size for most towns in the area is 10,000 sq. ft., just under a quarter acre. But a casual glance, the shore area is made up of plenty of 50’ x 100’ lots, and some even as small as 3,600 sq. ft.

I have argued with local commissions for years that if every lot in a zone is nonconforming, that probably means that there is an inherent defect in the regulations. No local commission wants to take this issue head on.

Instead, the reality is that land use decisions in these areas are largely made by zoning boards of appeals. By statute, of course, these boards are supposed to grant variances only in cases of “exceptional difficulty or unusual hardship”. When every lot is nonconforming, though, the hardships are hardly “unusual”. “My house/lot predates zoning.” “I need to go higher in the setbacks to meet FEMA requirements.” “My septic system takes up my backyard.” “The house is riddled with code violations.” All of these statements can be true, but they are hardly “unusual”.

The truth is, though, that zoning boards of appeals do grant variances. And according to Joe Capossela, who taught the Zoning Board of Appeals (ZBA) piece of the Bar Association’s Land Use Law and Practice for many years, that is exactly what they are supposed to do. They are, in Joe’s words, the “lollipop board”.

If you are liked by your neighbors and do not get greedy, the ZBA will give you a lollipop. But this is exactly the opposite of the “uniformity of zone” that is promised by Connecticut General Statutes Section 8-2. And it delegates the power statutorily given to zoning commissions to zoning boards of appeals.

There are ZBAs that impose gates on variance applications, but these are frequently arbitrary and unfair. One method I have seen, and do not recommend, is to require every variance application to have a complete A-2 survey, architectural plans and not-infrequently, a lawyer’s discussion of the claimed hardship.

This poses as a strict test of the worthiness of an application, but what it really amounts to is a means test. If you can afford to pay to produce an application, your application will almost certainly be granted. If you do not have the resources to provide these materials, at a cost easily exceeding $10,000, then you are not worthy of the ZBA’s time.

As land use law is theoretically tied to the inherent location and characteristics of the property, not its owners, this debases the value of zoning itself.

This is not the only tension between “land-based rules” and “owner-based rules”. The Americans with Disabilities Act requires that governmental bodies provide “reasonable accommodations” for people with disabilities. In zoning terms, this may require handicapped ramps in setback areas or elevators that may exceed height or coverage allowances.

There are workarounds.

Many cities and some towns have systems in place that allow zoning regulations to be “temporarily” modified to allow these improvements to be placed, on the theory that once they are no longer needed, for instance when the individual with those needs moves away, the improvements will be removed. In practice, the improvements never go away, if for no other reason than the administrative headache of trying to police such things is beyond the resources of most land use offices.

Flood zones present a different challenge. The zone lines drawn by FEMA do not respect the zone lines drawn by the zoning commission. The rules of uniformity within a zone do not align well with the requirements that houses be elevated out of the flood zone. Some houses get to have basements. Others cannot. And people really like their basements.

For most towns, additional vertical expansion, if done too close to property lines, is considered an improper expansion of a nonconformity. As most houses on their tiny lots along the shore violate one or more setback, trying to elevate a house will violate this principle. A variance will be required, and many zoning boards of appeals are sympathetic to the need to meet FEMA requirements. Zoning bends to address this, but these goals should be more compatible.

So far, I have spent this article addressing the failings of standard “Euclidean” zoning, but the title suggests that there must be a future for zoning out there. I suspect that there is.

The suburban desire to have bad things over there, not over here is a powerful one and will likely continue to drive the need for zoning. There have been trends, or fads, in the past few decades. Form-based zoning does not really help most suburban areas. Transit-oriented development has its uses, but there is a big gap between Old Saybrook and New London with no service and very limited bus or other transit options.

The State of Connecticut has been increasing its pressure on affordable housing, but without solutions that involve remedying the septic situation, no mandate can force the densities needed. I fully expect that zoning limits of “one house per lot” and/or “single-family zoning” will be curtailed or eliminated. I have no expectation that will make things better.

This cannot just be a paper about pessimism. What can be done? For starters, let’s meet people where they are. If you want to limit new lots to 10,000 sq. ft., okay. But let’s just admit that most lots along the shore do not meet that. Zoning regulations should say that any valid lot in existence today is conforming. All the other limits, setback, coverage, floor area ratio, can still effectively control density.

Having hundreds of nonconforming lots is a useless relic and should be addressed. 

In flood zones, maximum height should be measured from the point above flood elevation needed to meet the local freeboard requirement. Again, for most of these small lots, there are other tools to address bulk issues. But we want houses to be elevated out of the flood zone.

Requiring variances to elevate when that is the only issue is a waste of resources and counterproductive.

We need to be more creative on what a “mixed use” looks like. The idea of “store downstairs, apartment upstairs” is less useful now, in the age of Amazon and Zoom. The use of space is more fluid and less defined than it was. People are running businesses from their phones, which is not “land use” at all. Kitchen tables might double as crafting tables. Ovens can cook dinner or make cookies for sale. A garage might hold tools, but some of those tools might be “dual purpose”.

Zoning does not address this well. We have “home occupations”, but not everything neatly qualifies for that designation. Some better definitions and understandings on this are probably required.

The technology is not quite where it needs to be for seamless hybrid meetings. Sure, people can watch from anywhere. And they can even speak. But trying to have exhibits available to everyone watching, and then to allow people watching to submit exhibits in real time that every other participant can see—both in the room and on a device—requires an expertise that is just beyond what most small towns have available.

We will get there, but perhaps not quite yet.

Legal notices are a relic as well. The idea of a “newspaper of general circulation” is not especially meaningful when no one gets a physical “newspaper” anymore. Sure, getting notices up on a town webpage is a good step, but, again, this relies on expertise that varies from town to town.

I would propose having the Connecticut Secretary of the State handle every legal notice. There would be one page at the State’s website that would be a clearinghouse for legal notices. The State could charge for the privilege. It would still be cheaper than what the local papers charge. And everyone, no matter where they are, would know where to look. No guessing which paper. No searching for some tiny print on page 38.

I know that there is a hesitancy to create new state bureaucracy, but in this case, a central monopoly would actually make sense.

I would love to see towns be much more proactive in getting their land use information into an electronic format visible to everyone, anywhere, at any time. In a 21st century world, you should be able to click on a parcel on the GIS map and be able to access its history before municipal land use boards; its outstanding and historical permits; and its zoning, building and health department files.

This is all public information. It should be widely available to the public. 

I would love to see a “flood zone improvement calculator” tool. Owners of dwellings in a flood zone should be able to calculate how much work they can do before needing to elevate their house. This would need to include the value of permits within the “lookback period” and be keyed to the assessor’s valuation of the structure. 

As I noted in my last piece published Aug. 30, 2024 on LymeLine.com, I have no monopoly of wisdom here. I cannot claim that I, alone, have answers. But we should be searching for these answers, and right now, I just do not see a lot of that happening.