Lake dispute leads to talk of ending special permits

SALISBURY — The zoning text amendment prohibiting vertical expansion of nonconforming structures in the Lake Overlay Protection Zones was rejected by the Planning and Zoning Commission in a somewhat surprising meeting Tuesday, June 21.The zoning text amendment, which began life last year as a petition from the Lake Wononscopomuc Association, would prohibit expansion of nonconforming homes in the Lake Protection Overlay Zone (which extends to 300 feet from the water) and eliminate the special permit process that currently governs such properties.The amendment has been the subject of numerous meetings, hearings and one previous negative vote, on Nov. 16, 2010. It failed again last Tuesday in its presented form — covering 300 feet from the water. Commissioner Dan Dwyer and Chairman Michael Klemens voted for the motion; Commissioners Jon Higgins, Marty Whalen and alternate Fred Schmidt (seated in Cristin Rich’s absence) voted against it.Before the vote, Klemens warned he would vote yes, but for an entirely different reason.Klemens then surprised the room by voting against a second motion, essentially the same amendment with 75 feet substituted for 300 feet. Higgins and Whalen also voted no, and Dwyer and Schmidt yes.In the week following the meeting there has been widespread criticism and expressions of bewilderment, particularly when it became known that the commission, at its July 5 meeting, will consider a new revision to the zoning regulations that prohibits the enlargement of nonconforming buildings anywhere in town, and eliminates the special permit completely in such matters. In a phone interview Monday, June 27, Klemens said “My thinking on this has evolved” through the nine months of public discussions.Klemens said he always had “some discomfort with singling out a zone” in the manner of the text amendment, and agreed with Higgins in defending the special permit process as an effective mechanism.Klemens at one point was inclined toward “a very prescriptive special permit process” that would set out clear rules for future commissions to follow.But by Tuesday’s vote Klemens’ thinking had shifted again. “I began to think in much more fundamental terms.”He cited the example of a special permit for an outdoor woodburning furnace as appropriate for a special permit — it is a use within a zone that is allowed, subject to additional standards.By contrast, Klemens said he sees the special permit for adding to a nonconforming structure as “a variance masquerading as a special permit,” because unlike the wood furnace example, the special permit for nonconforming buildings provides relief from zoning regulations — and that, Klemens concluded, is the province of the Zoning Board of Appeals, not Planning and Zoning.A special permit, Klemens said, comes with a specific set of standards and requirements that must be met — no compliance, no permit. But a variance provides relief from a zoning regulation, and the applicant must demonstrate “hardship.”Klemens said he voted for the 300-foot version of the text amendment because he intended to introduce the revision of the zoning regulations that removes the special permit completely and prohibits enlargement of a nonconforming building anywhere in town.Klemens explained that if, as he believes, the commission should not be in the special permit business at all, then his vote for the 300-foot version makes sense — it eliminates one form of the special permit. The new revision extends that logic further.“If the special permit process is eliminated from one zone, the next step is to eliminate it from the entire town.”He said he voted against the 75 foot version because it would have created an exception, not just for a zone, but for a portion of the zone. “If I’d voted ‘yes’ I’d be affirming our ability to do special permits — it would be saying we have no authority over the 75 feet but retain it elsewhere in the zone.”On Monday Klemens was working on a memo for the commissioners, explaining his decisions, that will be included in their packet of materials for next Tuesday’s meeting, July 5 at 6:30 p.m., when the proposed revision to the regulations on enlarging nonconforming buildings will be introduced. Any change in the regulations is subject to a legislative review by the Northwest Connecticut Council of Governments and must go to a public hearing.