Report seeks to diffuse tension, deflect zoning lawsuits

SALISBURY — Donald Poland, the consultant who wrote a lengthy report on Salisbury’s land use administration, met with representatives of land use boards, all three selectmen, attorneys who work with the Planning and Zoning Commission and the Zoning Board of Appeals, and a standing-room-only crowd of citizens Tuesday, Feb. 9, at Town Hall.

The December 2009 report, now known as “The Poland Report,� found that Salisbury’s natural charm and proximity to New York City make it a magnet for wealthy individuals looking for country homes.

The presence of wealth, Poland wrote, has created a situation unlike other Connecticut towns of similar size. “The value of land and the cost of investment have grown too high and too much is at stake for property owners not to litigate what they believe are threats to their investments. If changes are not made to the overall system, litigation will become the norm.�

At the meeting, the affable Poland began by noting wryly, “When a report has your name on it, it’s never a good thing.�

He said he was surprised early in the process of interviewing people involved with land use in the town and came to believe the complaints he was hearing were “symptoms of something much larger.�

He described “a general perception of impropriety. Members of one commission thought other commissions weren’t doing things right, and nobody knew what was really going on.�

Poland added that the discussions kept returning to the same place: procedures.

“The concept of zoning is based on confidence, which provides stability. People don’t invest without it.

“And a lack of stability was a core problem. There was no confidence in the system.�

He gave an equation: “Value plus lack of confidence equals tension.�

Poland, who stressed that in his career as a planner and land use official he has represented all sides in disputes, said, “You’re never going to get rid of litigation in land use.â€�  He added that “the town must cross the t’s and dot the i’s, and be able to defend its decision-making process.â€�

Too much confusion

Poland described a second source of tension — that between those who feel strongly about the property rights of individuals and those who feel the need for effective zoning.

“I think there was a fear that this report would be a referendum on zoning,� he said. “But from the perspective of the report, zoning exists. What is needed are higher standards for procedures and processes.

“Every application should go through the same process. Every property should be judged on the merits of the application.

“I am making no specific recommendations as to policy — I’m  not going to tell you to have this much open space, that much set aside for affordable housing.

“But the lack of consistent procedures causes confusion. I was constantly being told of inconsistencies — this was done in this situation, this in that situation.�

In the report, Poland rated Salisbury’s land use administration as a three on a scale of 10, but in person he softened the blow: “I should have added I’ve never found a 10 or a nine.�

He then discussed the four options he spelled out in the report, calling them “procedural recommendations, written as if I were planner for a day.

“I intentionally added an implementation system. But it’s not up to me.�

Four changes suggested

He said the town could do “the bare minimum — make sure you’re at least legal.�

The maximum — including a full-time planner and a zoning enforcement officer, substantial increases in office staffing and hours, and a comprehensive rewriting of the regulations — “is what I should be advocating, but it’s the most costly —  and I was not hired to discuss policy.â€�

Poland reiterated his statement in the report, that his third option — including the hiring of a part-time planner, increased use of outside professionals (planning and legal) during hearings, and an overhaul of the regulations, with special emphasis on administration and enforcement, would be the optimal path for the town.

“It will create a culture change that will protect all parties,� he said. “It’s hard to ask the zoning official to work without these [high] standards at the staff or commission level. You’d be creating a consistent system so you’ll know what’s required for a site plan.

“There will be a clear statement of standards for various types of applications.

“If Salisbury can get to that place, a lot of the other stuff — I don’t want to say it will go away, but it will be less of an issue.�

It’s business, not personal

And he added this bit of advice for the future of land use discussions in Salisbury:

“Try not to take things personally. Check your personality at the door. If commissions challenge each other, that’s fine — but it doesn’t have to be a fight.�

He described a five-attorney  multi-board legal snarl in another town. “It probably could have been resolved — if they hadn’t personalized it.â€�

“You have an amazing community,� continued Poland. “I grew fond of Salisbury while I was here.�

How to pay for it

Then he addressed the cost of reform. “You can either budget for continual litigation, or spend some money up front now to make changes and minimize litigation at the back end.�

Keep on with business as usual, he warned, and there will be more trouble. “If you get into a boom period and values rise, there will be argument and disputes.�

Choosing the right option

Leading off the question-and-answer portion of the meeting, Peter Herbst, the attorney who works with the Zoning Board of Appeals (ZBA), said, “Anyone following recent ZBA appeals would come to the conclusion that something’s wrong. I believe it is in best interest of the community to move as quickly as possible. If I had a vote, it would be for [Poland’s option] number three.�

ZBA chairman Jeff Lloyd said,  “At the ZBA, we’ve seen some very aggressive lawyers and homeowners coming up against us. We need to make the regulations more user-friendly. Otherwise they take us to court, wear us down, spend what they want to get their way.â€�

And Planning and Zoning Chairman Cristin Rich added,  “The most important point is this is not a fault situation. The systems that worked historically aren’t working now. We’re looking forward to working as a team.â€�

Revising the Town Plan

Rich then asked about the Town Plan of Conservation and Development, saying that a new one is due in about 18 months.

“But the old one hasn’t been fully implemented. Do we write new regulations based on the  old one?â€�

“Planning is a whole different issue,� replied Poland. “The feeling I got from the individual interviews is there is definitely no consensus, on the policy side, on what Salisbury will be. That is going to be a big challenge.

“At this point, I think the procedural aspects of regulations is the priority.�

He suggested simply readopting the existing Town Plan. “You can buy time until after a comprehensive review of the regulations.�

He also suggested hiring a consultant to help.

 â€œOr moderate,â€� he said with a grin, to general laughter.

“A plan of conservation and development is a living document. If you don’t get through it in 10 years, that’s okay.�

Asked to give examples of towns that successfully resolved problems similar to Salisbury’s, Poland said, “It would be easy to say ‘yes’ and give an example. But the examples get there from a much different starting place. Salisbury is going to have to figure out what it wants to do itself.�

Planning and Zoning Commission member Dan Dwyer said, “Try it the other way. Can you point to a town that didn’t do it right?�

Poland said, “You have a unique situation here, with the geography, the pristine environment and the wealth.

“The private schools create a reason for the wealthy to come here. They drop off their kids, look around and think, ‘This is amazing, I want a place here.’

“Maybe Washington (Conn.) is similar. They were where you are 10 or 15 years ago.�

First Selectman Curtis Rand sketched out a situation where applicants would be required to pay for consulting fees.

“Each commission reviews its application fees and the selectmen amend the ordinance to include the applicant paying for outside consultants.

“It’s a little bit scary. I don’t know how you convey to an applicant a comfort level, that they’re not required to get one thing, and then another, and pay for it.

“The Conservation Commission adopted this two years ago but we haven’t used it.�

“I personally hate passing costs on to applicants,â€� responded Poland. “But you don’t have the Wal-Mart,  240,000-square-foot applications. With the existing system, applicants may spend a little more, $85 to $400.â€�

Planning works with zoning

Asked if Salisbury should consider creating separate planning and zoning commissions, Poland said that of the examples he’s seen, he prefers the combined commission.

“Zoning regulations are a strong tool for implementing planning decisions. I’ve seen cases where the zoning commission doesn’t agree with the planning commission and ignores it. It gets pretty ugly.�

And he offered a silver lining. “When the economy’s slow and applications aren’t coming through, it’s a great time to plan.�

Board of Finance member Mat Keifer said he liked the report’s recommendation of continuing education and training for land use staff and commission members.

“I think it will help speed up applications. I go to three or four a year, and I never see anyone from around here.�

Asked what immediate steps can be taken, Poland said, “There’s no reason not to make adjustments in procedures.�

Planning and Zoning member Jon Higgins said, “Historically we’ve taken the position that not all applications need a survey.�

He suggested establishing  “certain parametersâ€� that would trigger a survey requirement.

“In the past we’ve done that, but on a casual basis.�

Poland replied, “Things like porches, sheds, you can probably set a pretty low standard. When you get into more expensive construction, you need a survey.�

A person asked how the selectmen plan to proceed.

 â€œThat’s not our call,â€� said Rand. “Planning and Zoning makes a recommendation.â€�

Higgins said that some changes can be made immediately, and Poland pointed out that applications can be updated without modifying any regulations.

Need for more staff

Tom McGowan, a consultant who works often with Salisbury, said, “I am a little surprised at the lack of emphasis on staffing. Washington has a full-time zoning enforcement officer who attends all land use meetings, a full-time land use administrator, and a full-time clerk and part-time clerk for the office.

“All the procedures won’t work effectively without staff. Relying on volunteers — who have done a great job ... you ought to hire yourselves a planner.�

“Most applications should go to a planner for review,� Poland said. “Whenever outside experts are present, commissions express a higher level of confidence.�

And Al Ginouves spoke of his time on the ZBA and of the burden on volunteer boards. “I think having an attorney present even at simple things will save a lot of grief.�

During his time on the ZBA, Ginouves said he saw  “our board bullied and bamboozled. I say let’s go for broke on this.â€�