The Newtown Bee recently engaged two local land use attorneys who are experts in zoning laws and regulations about the public hearing process and other matters to help educate the community about local planning and zoning procedures.
The first attorney is Gail McTaggart of Secor, Cassidy, and McPartland, PC, of Waterbury.
According to the firm’s website, McTaggart’s practice focuses on land use, municipal law, real estate development and transactions, and commercial law. She has served as Town Attorney, Land Use Counsel and Special Land Use counsel in numerous Connecticut towns. In towns she does not represent, Attorney McTaggart works with developers, business owners, neighborhood associations, non-profit entities, and lenders in real estate development matters including land use planning, brown field development, regulation drafting, processing applications, post-approval documentation and financing.
The second is Attorney Thomas Beecher of Collins Hannafin, PC, of Danbury.
The firm’s website states that Beecher practices in the areas of land use and zoning, municipal law, civil litigation and appellate practice. He is often counsel to other firm members in zoning litigation and appellate matters. Beecher represents individuals, developers, and businesses in zoning and other land use and development applications before planning and zoning commissions, zoning boards of appeal, and inland wetlands commissions. He also represents municipalities in advising boards and commissions in land use matters.
Regarding Connecticut Planning & Zoning protocol, what is a “special exception?” What would it provide to the applicant if granted and under what criteria could it be denied?
McTaggart: A special exception [is a] statutory use permitted in a zone but [has] special attributes. They need to work well with the surrounding properties and the commission is allowed to put special conditions on its approval to ensure that the use is complementary to the health, safety, and welfare of the neighboring properties. State statutes require that a town’s regulations set for the conditions under which a project may be approved. If those conditions are met, it is approved, if they are not met, it is denied. It is up to a Planning & Zoning Commission to decide whether the conditions are met or not. Special exceptions require public hearings.
Beecher: A special exception and special permit are interchangeable terms. A special exception permit is approved if it satisfies the zoning regulations generally. General standards such as noise and traffic considerations may be special conditions on the approval. Three things must be satisfied for a proposal to be approved: The proposed use must be permitted under regulations, the standards of use must be satisfied, and any reasonable conditions that the commission attaches to the approval for public health, safety and welfare must be met.
The commission does not have a duty to completely redesign a project so that conditions are met. Conditions set must be related to town regulations. A commission cannot deny an application which meets the town’s regulations and standards. They do have some discretion in determining if a proposal meets regulations and standards. Each property is unique in some fashion, even if in the same zone as neighboring properties. The commission’s decision to approve or deny a proposal has to be specific on what standards or regulations are met or not met, and mention what testimony was credible and weighed for or against a decision, and why.
Which of the following factors can a P&Z panel consider when weighing approval or denial of a special exception: Potential for increased air pollution; noise; increased traffic; environmental impact of removal of trees or displacement of animals?
McTaggart: All those things can be considered if the town’s regulations so provide. Those would be considerations of the health, safety, and welfare of the surrounding properties.
Beecher: There is going to be a section in the Newtown regulations that apply to special exception process. I’m sure the standards there include those kind of things. Sometimes a wetlands commission or a preservation commission has consideration on some of those things.
What is an intervenor? What does one do, and what can’t one do?
McTaggart: State statute allows any person, entity, or organization to intervene to protect the public trust from environmental hazards. The intervenors’ objections must have a relation to environmental considerations under the purview of the commission in question — a Planning & Zoning Commission could not consider a wetlands issue. The impact of the issue has to be the cause of unreasonable contamination or pollution, and must present verified facts on how the application will directly have an impact with unreasonable contamination or pollution.
If they can do that, they can participate as a party in the public hearing. If the commission determines that an intervenor has proven that the project will have an impact, the commission cannot approve the project as is if there are reasonable alternatives that would not have such an impact.
Beecher: Intervenors have the right to intervene in a proceeding. They must allege to be there to protect against an application which may have environmental impacts. They may allege if there is significant pollution to air or water, but in the end they must prove that pollution exists, and in a manner consistent with the regulations that it destroys the public trust in air, water, and natural resources.
Can a P&Z decision to approve or deny an applicant be solely based on public opposition?
McTaggart: No, not on public opinion. The public can set forth evidence that shows the town’s regulations are not being met. But zoning is not a popularity contest. The commission can not make up things as they go along and must follow its regulations. It must look at its own regulations and determine if they are met or not. The pubic can come and argue whether the standards are being met or not being met, but the commission is stuck with the requirements of its own regulations. Most special permits talk about consistency with an area. The commission must determine if a project is a permitted use in the zone and properly located.
Beecher: Zoning applications are not popularity contests. Zoning commissions must be mindful of that. Vocal support or opposition is not enough justification to grant or deny. The commission must take all the facts and testimony, and see if it supports granting an application under the regulations, or if it fails. Judges have said commissions can’t decide on a permit based on neighbor’s opinions.
Can P&Z deny a project based on potential tenancy of a development?
McTaggart: P&Z only looks at use, not the user. If a tenant comes in, the conditions of approval of use must be followed.
Beecher: No, a commission can’t deny a permit based on the owner or nature of the user. A permit must be for a proposed use, and the structures and site development must fit in the regulations. An approval is tied to a proposed use, not the user.
Associate Editor Jim Taylor can be reached at [email protected]