By Michael J. Cacace,
| Originally Published in the North Stamford Association Newsletter
It was less than one hundred years ago that the United States Supreme Court held that government had the right to control the use of private land pursuant to a legitimate use of its police power. The 1926 decision in Village of Euclid, Ohio v Ambler Realty Co. sanctioned regulation of not only the uses of the land but also the height, area and bulk of improvements constructed on the site. That gave rise to a system—often referred to as Euclidian Zoning—of dividing communities into three use groups: industrial, commercial and residential, with commercial districts often including residential uses. Within each category there were often subcategories which allowed for differing degrees of intensity and density.
In Connecticut, the power to regulate the use of land is primarily, but not exclusively, delegated to local municipalities under Title 8 of the Connecticut General Statutes. While that is true for Stamford, since we are a Special Act municipality, the unique provisions of our Charter also play a role in the land use regulatory system here. Accordingly, on a local level we have a Planning Board, a Zoning Board, a Zoning Board of Appeals and an Environmental Protection Board. We will limit our discussion to those agencies recognizing that others like the Health Department, Building Department, Historic Preservation Advisory Commission may also play a role in regulating the use of land.
The Role of Stamford’s Planning & Zoning Boards
The Planning Board plays three important roles in Stamford, each of which is integral to planning the future of the community. It is responsible for reviewing capital expenditures, approving subdivisions and authoring the City’s Master Plan. The Master Plan is a blueprint for Stamford’s growth, preservation and sustainability. Unlike most Connecticut municipalities, Stamford’s Master Plan is not merely advisory since the Charter explicitly states that zoning changes cannot be “contrary to the general land use established” by the Master Plan. Finally, the Planning Board adopts subdivision regulations and makes recommendations to the Zoning Board and the Zoning Board of Appeals on certain applications before those boards which can have the effect of requiring a super majority for approval.
The Zoning Board, on the other hand, is responsible for adopting zoning regulations and a zoning map; deciding applications that seek to amend them; and hearing applications for Site Plans, Special Permits or special exceptions and Coastal Area Management applications. Stamford originally followed the traditional Euclidian model and divided the City into distinct districts. However, using cutting edge land use tools, the City now also uses floating zones, design districts and a host of other tools to closely regulate land use. In fact, although most development was probably “as-of-right” under the earliest versions of our land use scheme, there is virtually no “as-of-right” development permitted except for single family or low-density residential development and very small commercial projects. A Site Plan approval and/or Special Permit are usually required for most industrial, commercial or multi-family construction.
The Methodology of Special Permit Uses and Variances in Stamford
Almost immediately after permitting the regulation of land, it became clear that the best interests of a community or simple equity required escape valves from a strict application of those regulations. Accordingly, a category of Special Permit uses can be created, or the Zoning Board of Appeals can grant variances. Special Permit uses are not as-of-right uses but instead are uses, often in residential zones, that are not residential in nature but are needed in the community and can be compatible with residential uses or the neighborhood within which they are proposed to be located. At first, obvious uses such as houses of worship or schools fell within this category. However, the list has expanded to include day care facilities, camps, cemeteries, clubs, clinics, nursing homes, and many more. Stamford also requires a Special Permit for all large-scale development in any district. A Special Permit use in Stamford must meet extensive standards set forth in Section 19 of the Zoning Regulations.
At the same time, the regulations may work an unreasonable hardship on a property which would essentially render it unusable. Variances are permitted to relieve that hardship. The hardship cannot be financial in nature. Instead, it must arise from something unique to that property and different from other properties in the same district and which is not self-created. Classic hardships can arise from unusual topography or uniquely shaped lots where reasonable development may not be permitted under a strict application of the Zoning Regulations. Granting variances is solely the province of the Zoning Board of Appeals which allows the ZBA to “vary” the regulations. In addition, the ZBA decides all appeals from decisions of the Zoning Enforcement Officer and hears special permit applications that the Zoning Regulations delegate to them.
Furthermore, since the 1970’s, any development activity within an environmentally “regulated area” will require additional approvals usually from the Environmental Protection Board. The EPB has jurisdiction over inland wetlands and watercourses and certain areas impacting those wetlands. Developments on or near the coastline will also require review and approval.
A Dynamic System of Land Use Appeals & Jurisdiction
Also unique to Stamford as opposed to other Connecticut towns and cities, persons aggrieved by certain decisions of the Planning Board and Zoning Board can appeal those decisions to the Board of Representatives in lieu of taking appeals to the Superior Court. Amendments to the Master Plan the Master Plan Map, the Zoning Regulations or the Zoning Map can be appealed to the local legislative body.
As if the local land use scheme were not complicated enough, many state and federal laws can overrule local controls; and as society and technology change the way we work and live, new uses will challenge how our land use regulations are interpreted. For example, state laws can override local rules as to where group homes can be located, or where public utilities, prisons, or other state projects can be located. Likewise, on the federal level, statutes like the Federal Fair Housing Act, Americans with Disabilities Act or Religious Land Use and Institutionalized Persons Act can trump local rule. Moreover, societal and technological changes may require constant attention to the ways we regulate the use of land. For example, the proliferation of Airbnb and other on-line short-term rental sites, the whole notion of WeWork and other coworking venues, and a host of other new or modified uses challenge the existing paradigms upon which our land use fabric is based.
In a nutshell, the system of land use controls in Stamford— like most cities—is a complicated and tangled web of overlapping jurisdictions which must be dynamic in order to address and keep up with a rapidly changing society, with the objective of fostering and promoting a vibrant community while preserving and enhancing its quality of life.
About Michael J. Cacace
Michael J. Cacace is the founding partner of Cacace, Tusch & Santagata. Listed as one of the “Top Lawyers in Connecticut” in the practice areas of real estate and zoning, he has served as President of the Stamford Regional Bar Association. He is also a board member of the Regional Plan Association, and Co-Chairman of the Connecticut Committee of the Regional Plan Association. Mr. Cacace has received numerous awards for his community involvement, and has served as president of the United Way of Stamford and the United Way of Connecticut. He is a former member of the Democratic National Committee.