Why A Requirement Forcing Projects or Zoning to be Consistent with Plans of Conservation and Development Should Not Be Adopted
A Consistency Requirement Begs the Question: With What Do You Want To Be Consistent?: If written well and if the balanced requirements of their enabling statute are followed, then local plans of C&D should mean something to a community. Unfortunately, many local plans of C&D are not written well, are outdated or do not incorporate the balanced requirements of Conn. Gen. Stat. ("CGS”), section 8-23. Thus, a consistency requirement will force zoning ordinances and maps and land use applications in many communities to be consistent with poorly written, unbalanced or out-of-date plans. This is not sound land use policy.
Requiring Each Development Application to be Consistent With a Plan of C&D Will Create More Land Use Appeals and Instability in the Marketplace: The state plan of C&D and most local plans of C&D contain language that is purposely broad with competing goals on many issues. There are numerous provisions in these plans that will serve as the basis of challenging any zoning decision or proposed development as "inconsistent.” NIMBY’s, whether citizen intervenors or land use boards, will love a consistency requirement since it will become their greatest tool to stop development. A claim of inconsistency with the local plan of C&D will become a standard claim in most if not all land use appeals. Further instability will be caused in the marketplace and it will further erode the elusive certainty permit applicants seek. The uncertainty and delays created by a consistency requirement will, thus, further complicate the financing of land development proposals.
A Consistency Requirement Could Strangle A Community’s Development: Even if written well and they follow the statute, plans of conservation and development (C&D) should be guidelines only, tools to delineate in broad terms the land use goals of the group that writes the plan. But top-down or centrally based planning of societies has proven time after time not to work. A plan of C&D cannot adjust well to the changing desires of either the marketplace, a town’s leaders or its citizens. They are not amended easily, especially after enactment of PA 01-197 that changed the process for adopting plans of C&D.
Zoning map changes and text amendments, as well as variances and other relief mechanisms, accommodate necessary or desired projects that may not be envisioned by a municipality’s most recent plan of C&D. Thus, these land use processes provide the flexibility to accommodate a community’s changing needs. Strict consistency with local plans of C&D removes that necessary flexibility in our land use system. While planning can be better than no planning at all, ignoring the fact that we operate in a world of constant changes would soon condemn a community to economic obsolescence and a greater deterioration of quality of life.
A Consistency Requirement Thwarts Other Legitimate Public Processes: Adopting plans of C&D are ostensibly developed with much public input but in reality they are often adopted in empty meeting rooms with only the planning commission and, if available, planning staff or consultants and, possibly, a very few activist citizens present. Adopting zoning regulations and maps are also local legislative functions subject, as they should be, to wide public participation. However, under a zoning consistency statute the state legislature would be establishing a policy stating that the public process of adopting or amending zoning shall yield to the process of adopting a plan of C&D. We do not believe that one public process is any less credible than the other.
A Consistency Requirement Effectively Gives Planning Commissions Veto Authority Over Zoning Commissions: A municipality’s planning commission has approval authority over adoption of and amendments to the plan of C&D. If a development proposal, whether offered by a private applicant or the municipality itself, could be challenged as "inconsistent” with the plan of C&D, the proponent of a project would have to first seek an amendment to the plan of C&D, a daunting task given the procedural requirements for amending a local plan. If the planning commission does not want a project, a zoning board (or other local boards depending on how broadly consistency is applied) cannot under a consistency statute approve the project, giving planning commissions veto authority over other boards who are required to be consistent with the plan of C&D.
There are approximately forty municipalities in Connecticut with separate planning and zoning commissions. Yet these tend to be in larger communities. Thus, communities with separate commissions serve an even larger percentage of the state’s population. In many of these, zoning boards and planning boards do not get along for a variety of reasons. Also, in some cities the city council serves as the zoning authority. Thus, strict zoning consistency would provide planning commissions veto authority over the city council, further complicating the battles that would ensue.
A Consistency Requirement Would Add Substantial Delays to the Land Use Process: Under a consistency requirement the proponent of a new development may have to apply first for an amendment to the local plan of C&D prior to applying for a zoning petition (i.e., application to change the zoning map or the zoning ordinance). Since the zoning and planning functions are very different processes and each has its own statutory enabling act with legal processes that must be followed, a consistency requirement would double the public hearings that must be held and add substantial delay to zoning petitions. These additional public hearings and added delays will occur regardless whether zoning and planning are separate commissions or a combined commission because the legal processes in the enabling statutes must be followed.
If Adopted, Consistency Should Work Both Ways: If the state plan of C&D or local plans of C&D are to be elevated by a consistency statute to the only legitimate vision of the state or of a municipality, then it should cut both ways. That is, issues such as type of use, density and intensity of such uses and perhaps other issues identified in the plan of C&D should be considered settled matters not open for discussion or alteration by local boards, or subject to further public debate over the matter, at least until the next scheduled update of the plan when they can provide comments to the planning commission (or in the case of the state plan, OPM). Thus, local zoning and other local boards and commissions should be expressly prohibited from varying the uses, density and intensity of development proposals where such proposals are consistent with plans of C&D. It would be intellectually dishonest not to couple a consistency requirement with such an express prohibition.