Contained herein is a list of the bills pertaining to planning, zoning and inland wetlands matters currently before the Connecticut General Assembly. An effort has been made to summarize the bills and provide an analysis of the bills that have been formally drafted. As much as possible, this blog will be updated occasionally to communicate revisions made to the bills and their progress through the legislature.

Presently, none of these bills has made it out of committee. They are either raised bills or proposed bills. Raised bills are bills created by a legislative committee with cognizance over the subject matter and can have a greater chance of passing. These bills are fully drafted and have formal statutory language that the committee has voted to have drafted. The following raised bills are before the legislature at this time.

Proposed bills are raised by individual legislators or groups of legislators and state the general purpose of the bill without formal statutory language. Such bills are referred to committees with responsibility over the subject matter. These bills are then screened by the chairpersons of the committee with input from other committee members. Bills that survive screening may be brought before the full committee for approval of the concept proposed. If approved, it is drafted into statutory language and becomes a committee bill.

Raised Bills Before the General Assembly

• Raised S.B. No. 915 AN ACT CONCERNING THE GRANTING OF VARIANCES BY ZONING BOARDS OF APPEALS. Planning and Development Committee

This bill would clarify and revise the standards for obtaining variances. It has been before the legislature before in a similar form but failed to pass. The Connecticut Bar Association including its Planning and Development Committee has been involved in creating the bill, but the current language is that raised by the committee. The bill also has the general support of the Connecticut Chapter of the American Planning Association and the Connecticut Association of Zoning Enforcement Officials. The bill will surely change through the legislative process and there are improvements that could be made to achieve its goals and to clarify potential issues.

As currently drafted, the bill would clarify and codify the standards for use variances. It would also create a different standard for obtaining area or bulk variances, which is clearer, puts into law the balancing that often happens in variance decisions, reflects the realities of the issues at play for communities and applicants, and is potentially more reasonable. Further, it would allow municipalities to limit the extent to which area variances are allowed in certain districts. Currently, municipalities are only permitted to limit, but not bar, use variances.

Use Variances under the Bill

Under the bill, applicants for a use variance would still have to prove an “unusual hardship.” Under current law, a zoning board of appeals may grant a use variance when:

the application of the zoning bylaws, ordinances or regulations in harmony with their general purpose and intent and with due consideration for conserving the public health, safety, convenience, welfare and property values solely with respect to a parcel of land where, owing to conditions especially affecting such parcel but not affecting generally the district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship so that substantial justice will be done and the public safety and welfare secured

An applicant must also presently demonstrate that the variance will not “affect substantially the comprehensive zoning plan.”

The bill would allow a variance “where, owing to conditions especially affecting such parcel but not affecting generally the district in which such parcel is situated, a literal enforcement of the bylaws, ordinances or regulations would result in unusual hardship, and so that substantial justice will be done and the public safety and welfare secured.” The applicant would also need to demonstrate that

1. “The use for which such variance is requested will not impair the essential character of the neighborhood or the objectives of the plan of development of the municipality in which such parcel is situated; and
2. “Such unusual hardship is not the result of any act or omission of the person requesting such variance.”

The proposed language is simplified from the current variance statute. It removes “exceptional difficulty” from the standard for granting variances. Currently, an applicant must prove that the enforcement of the regulations would result in an “exceptional difficulty or unusual hardship.” Connecticut courts have not distinguished exceptional difficulties” from unusual hardships. Contrast this with other jurisdictions that apply a “practical difficulties” test to area variances and an unusual hardship test to use variances. Connecticut courts apply the phrase as a whole. The bill recognizes the duplicative and confusing nature of the phrase and merely uses “unusual hardship.”

The bill would effectively pair the requirement that variances not affect substantially the comprehensive zoning plan with a requirement that the proposed variance must not impair the objectives of the plan of development. The comprehensive zoning plan and plan of development (also known as a plan of conservation and development) are distinct. Absent a formally adopted comprehensive zoning plan, the comprehensive zoning plan is found in the zoning regulations and zoning map themselves. It evolves from the history of zoning in the town and is reflected in these documents. The plan of development is a planning concept not based on existing conditions and regulations but is a scheme for future development within exclusive control of the planning commission. Requiring that a use variance not impair the plan of development and not effect substantially the comprehensive zoning plan may prove confusing for applicants and boards. One is backward looking and the other is forward looking. The bill may be improved without the reference to the plan of development.

The bill would still balance the claimed hardship against the proposal’s potential impact on public safety and welfare. The bill does not list the potential impact on property values, convenience, and public health as considerations to balance against a proposed variance. Arguably, public health could be considered under “safety and welfare.” The potential positive, neutral or negative effects on property values can be hard to demonstrate with expert evidence beyond claims from property owners that there will be a negative effect.

The bill would also codify the rule applied by the courts that self-created hardships are not a basis for granting a variance.

Both the use and area variance sections of the bill reference the possible effects on the character of the neighborhood. The use of the phrase character is potentially problematic. Public Act 21-29 attempted to remedy appeals to the effect on neighborhood character as a consideration in zoning regulations and as a basis for decisions. (More here.) The Connecticut Council on Human Rights and Opportunities also opposes the references to character because appeals to character have been used as a pretext for discrimination and blocked affordable housing projects.

Assumedly, variance decisions based on character would be limited by Public Act 21-29, which would require that the term character be “expressly articulated in the regulations by clear and explicit physical standards for site work and structures.” Nonetheless, the variance bill would be improved by clarifying that appeals to character are limited by Public Act 21-29 or otherwise revising the language regarding character to be consistent with the use of character in that act.

Area Variances

Under the proposed bill, area variances would no longer be subject to the hardship standard currently in place and described above. A variance could be granted where the benefit to applicant outweighs any adverse effects on granting such variances on health, safety and welfare of the neighborhood or community. The bill provides certain considerations to weigh, if applicable, but an unfavorable finding on any one consideration would not require denying the application. Those considerations are as follows:

• Such variance will adversely affect the character of such neighborhood or any nearby property;
• Such variance will adversely affect the physical or environmental conditions of such neighborhood;
• Such benefit may be achieved by a feasible alternative that does not require such variance;
• Granting such variance will facilitate compliance with the requirements of any bylaw, ordinance or regulation concerning life, health or safety, including, but not limited to, regulations for flood-prone areas and accessibility requirements for disabled persons;
• Such variance will violate any provision of the National Flood 74 Insurance Program, 44 CFR Part 59 et seq.;
• Granting such variance will reduce impacts on any wetland, watercourse or upland review area;
• Such variance will be consistent with the plan of development of the municipality in which such parcel is situated; and
• Such parcel’s noncompliance with any zoning bylaw, ordinance or regulation is the result of any act or omission of such person.

The proposal replaces the hardship standard and is intended to allow zoning boards of appeals to consider the needs and realities of communities and weigh the interests involved. This reflects the reality that many boards are weighing the interests and issue and not necessarily objectively applying a clear hardship standard. The bill also provides a number of factors for boards to consider, which may result in more consistent deliberations from one board to the next. Currently, each board is left to define what a hardship means.

Opponents argue that the bill would destroy the uniformity standards of zoning, almost require that any variance be granted without a court being able to overturn the decision, place the interests of individual property owners over those of the community, and replace an objective standard with a subjective one that is ripe for favoritism and abuse. However, boards currently are forced to turn down reasonable variance requests that benefit the property owner and do no harm to the community but do not rise to the level of what would be considered an undue hardship. It is unclear though whether the change to a benefits and harms balancing test would in fact result in more variances being granted. By reframing the balance of the applicant’s interest as mere “benefits”, the bill may dilute the impact to be rectified for the applicant. Surely zoning boards of appeals will have no trouble outweighing the myriad potential adverse effects on the larger community to the benefit of a property owner. Nonetheless, where a variance would otherwise would have been denied for the inability to show an unusual hardship distinct from other properties in the district, a variance may be granted if the bill passes. However, it appears that boards would benefit from a standard that reflects the reality of what they consider in weighing variances and provide a standard that is easier to comprehend and apply.

It is not clear though how other general variance principles would interplay with this new variance standard as the bill is currently worded. For instance, zoning generally seeks the elimination of nonconformities. Will a property owner seeking to expand or enlarge a nonconforming structure be able to do so if the benefit to the property owner outweighs any negative effects it may have? Or will such expansions of nonconformities still be barred? Additionally, under the current hardship standard, financial disadvantage or advantage is insufficient to grant a variance unless it rises to the level of an unconstitutional confiscation. Does the undefined “benefit” to the property owner include financial benefits? Also see the discussion above regarding character.

Similar to the proposed change for use variances of ensuring that the proposal not “impair” the plan of development, the bill calls for weighing the proposed area variance’s “consistency” with the plan of development. Confusion may arise from trying to comprehend and apply these different standards regarding the plan of development to use and area variances while still ensuring that the proposal does not substantially affect the comprehensive zoning plan.

The bill would also codify the Adolphson exception which allows a variance where there would be a reduction in nonconformities as a basis for approval of a use or area variance. As drafted, the bill refers to reductions in “nonconforming uses.” Assumedly, the exception would apply to a reduction in bulk nonconformities and nonconforming uses but the language could be clearer. Additionally, the language of the bill focuses on reduction in the number of nonconforming uses in the municipality and not on the property itself. The language could be improved by shifting the focus to the property at issue.

These changes to the variance scheme would be significant but may result in a system that reflects reality, is easier to apply, and fairer to property owners. Improvements can be made as the bill makes it through the legislature. This blog will continue to follow the bill’s progress.

• Raised H.B. No. 6559 AN ACT CONCERNING ZONING REGULATIONS AND COMMUNITY RESIDENCES. Planning and Development Committee

This bill would make technical and other changes to the regulation of “community residences” and modernize the definition of “certified mail, return receipt requested” for service requirements throughout the General Statutes.

For community residences, the bill would incorporate the definitions of community residences and mentally ill currently found in General Statutes § 19a-507a. It also would revoke the prohibitions found in General Statutes § 8-3f and 19a-507b on community residences being within 1000 feet of each other. Further, it would revoke provisions in General Statutes §§ 8-3e (b), 19a-507b, and 19a-507d for persons to petition licensing agencies to revoke the licenses of community residences and child-care residential facilities.

With regard to certified mail return receipts, the bill would revise Section 1-2b of the General Statutes, including planning, zoning, and wetlands statutes, defining “certified mail, return receipt requested” to include modern methods of receiving the return receipt and in line with the USPS Domestic Mail Manual.

• Raised H.B. No. 5796 AN ACT REQUIRING PUBLIC COMMENT PERIODS AT PUBLIC AGENCY MEETINGS. Planning and Development Committee

This bill would require that members of the public be able to present “oral testimony” at any public meeting. Although they all value and encourage public participation, the bill faces opposition from the Connecticut Council of Small Towns, Connecticut Conference of Municipalities, and Connecticut Association of Zoning Enforcement Officials, as well as concerns raised by the Freedom of Information Commission. Opponents have issues with the breadth of the language applying to any public meeting, what is meant by “oral testimony” (is it under oath?), practicality and appropriateness issues, whether the public comments would create ex parte communication issues with public hearings and creating a public hearing process where not called for under zoning statutes.

• Raised S.B. No. 918 AN ACT CONCERNING COASTAL SITE PLAN REVIEW. Planning and Development Committee

This bill would make clear that only one coastal site plan required where multiple could be if multiple applications triggering coastal review are necessary for the project.

• Raised S.B. No. 905 AN ACT CONCERNING ALCOHOLIC LIQUOR AND TOBACCO BARS. General Law Committee

Analysis to come to determine relation to zoning. Stated purpose: “To: (1) Establish permits for the retail sale of alcoholic liquor at auction, annual outdoor open-air liquor permits and event sales permits; (2) authorize wholesaler permittees to sell kegs containing cocktails and premixed drinks to certain retail permittees for on-premises consumption; (3) require the Commissioner of Consumer Protection to amend certain regulations in order to provide that certain pipes and lines used to serve alcoholic liquor shall be cleaned at least once every two weeks; (4) eliminate the prohibition against provisional seasonal outdoor open-air liquor permits; (5) authorize spirits manufacturers to sell products they manufacture under farmers’ market sales permits; (6) provide that neither the State Fire Marshal nor any local fire marshal may require any liquor permit premises to be inspected more than once during any calendar year; (7) amend the alcoholic beverages tax to provide that liquor, certain alcohol and liquor coolers are taxed at the same rate as beer; and (8) allow for the establishment of new tobacco bars and for existing tobacco bars to expand or change location.”

• Raised H.B. No. 6590 AN ACT CONCERNING CERTAIN PROTECTIONS FOR GROUP AND FAMILY CHILD CARE HOMES. Housing Committee

Analysis to come to determine relation to zoning. Stated purpose: “To (1) clarify and enforce protections for licensed group child care homes and licensed family child care homes, (2) prevent landlords from placing restrictions on the operation of licensed group child care homes and licensed family child care homes, and (3) provide certain protections to landlords when their property is utilized by operators of licensed group child care homes and licensed family child care homes.”

• Raised S.B. No. 904 AN ACT CONCERNING THE RECOMMENDATIONS OF THE OFFICE OF THE STATE TRAFFIC ADMINISTRATION WITHIN THE DEPARTMENT OF TRANSPORTATION REGARDING HIGHWAY SAFETY. Transportation Committee

Analysis to come to determine relation to zoning. Stated purpose: “To (1) establish a penalty for a municipality that fails to comply with an order issued by the Office of the State Traffic Administration, (2) permit the use of symbols on pedestrian control signals, (3) require operators to stop for pedestrians in crosswalks, (4) prohibit local building officials from issuing a certificate of occupancy for certain developments until conditions of a certificate issued by the office have been completed, (5) require annual training for traffic authorities, and (6) permit speed limits up to sixty-five miles per hour on suitable multiple lane, limited access highways.”

• Raised H.B. No. 6548– AN ACT CONCERNING THE DEPARTMENT OF CONSUMER PROTECTION’S RECOMMENDATIONS REGARDING ALCOHOLIC LIQUOR REGULATION. General Law Committee

Analysis to come to determine relation to zoning. Stated purpose: “To: (1) Authorize (A) alcoholic liquor manufacturers to enter into alternating proprietorship agreements, and (B) certain liquor permittees to enter into contract manufacturing agreements; (2) establish temporary auction permits; (3) provide that a permitted manufacturer of spirits or beer that also holds a farmers’ market sales permit may sell, and offer free tastings of, its spirits or beer at a farmers’ market operated as a nonprofit enterprise or association; (4) expand the off-site farm winery sales and wine, cider and mead tasting permit to include additional liquor permittees; (5) eliminate the sunset date concerning the period during which certain liquor permittees may sell liquor in sealed containers for off-premises consumption; (6) replace temporary beer and liquor permits with a temporary liquor permit for noncommercial entities; (7) authorize the Department of Consumer Protection to issue farmers’ market sales permits to spirits manufacturers; (8) authorize certain liquor manufacturers that hold out-of-state shipper’s permits for beer to engage in additional sales and shipping activities under festival permits; (9) provide that no person who assists an applicant, backer or liquor permittee in submitting an application for a liquor permit shall submit, or cause to be submitted, any false statement in connection with such application, or engage in any conduct which delays or impedes the Department of Consumer Protection in processing such application, provide that submitting any such statement or engaging in any such conduct shall constitute an unfair or deceptive trade practice within the meaning of the Connecticut Unfair Trade Practices Act and authorize the Commissioner of Consumer Protection to impose civil penalties on any person who submits any such statement or engages in any such conduct; (10) provide that a liquor permittee shall be a director, employee, member, officer, partner or shareholder of its backer; (11) provide that the department may summarily suspend a renewed liquor permit if the liquor permittee fails to timely submit a fire marshal certificate to the department; (12) subject beer manufacturers to beer keg identification, receipt and refund requirements; (13) eliminate special club, charitable organization, nonprofit public television corporation and nonprofit corporation permits; and (14) make minor, technical and conforming changes to the Liquor Control Act.”

Proposed Bills by Individual Legislators

• Proposed H.B. No. 5059 AN ACT EXTENDING THE DEADLINE FOR ZONING ENFORCEMENT OFFICER CERTIFICATION. Sponsor- Rep. Greg S. Howard, 43rd Dist.-Republican

Status: Referred to Joint Committee on Planning and Development

Public Act 21-29 required zoning enforcement officers to be certified by the Connecticut Association of Zoning Enforcement Officials by January 1, 2023. This proposal would extend the deadline to January 1, 2024.

• Proposed SB No. 514 AN ACT CLARIFYING THE ROLE OF ZONING BOARDS OF APPEALS IN THE LICENSING OF MOTOR VEHICLE DEALERSHIPS AND REPAIR SHOPS. Sponsor- Sen. John A. Kissel, 7th Dist.- Republican

Section 14-54 of the Motor Vehicle code requires a certificate of approval for the location for motor vehicle dealers or repair shops. There are separate statutes that have the same procedure for filling stations (14-321) and motor vehicle recyclers (14-67i). These approvals are usually made by the zoning board of appeals. These are not zoning decisions, which can confuse boards as to the standards being applied. Towns sometimes also don’t have clear applications or processes for obtaining these approvals. Add to the confusion, in 2003 the legislature repealed the hearing and suitability analysis standards for zoning boards to apply in hearing such applications. Our courts have held that it is up to zoning boards to determine what standards to apply in determining the suitability of a given certificate of approval. There is also a practical consideration as to where the location approval falls in conjunction with obtaining necessary land use approvals. As zoning boards are acting as agents of the state, really the Department of Motor Vehicles, and these are not zoning decisions, it is the state who should set the standards to be applied. The proposed bill provides three alternatives (1) remove the zoning board of appeals from the certificate of approval process, (2) provide criteria for making such determinations, or (3) provide that the certificate shall be issued by the planning and zoning commission before seeking final approval from the zoning board of appeals. The first or second options seems to be a solution. Additionally, if the legislature is working on a fix to the certificate of location approval process, it should apply to all such approvals and not piecemeal.

• Proposed H.B. No. 6292 AN ACT CONCERNING THE REVIEW OF MOTOR VEHICLE DEALERSHIP AND REPAIR LICENSE APPLICATIONS. Sponsors- Sen. John A. Kissel, 7th Dist.- Republican and Rep. Carol Hall, 59th Dist.- Republican

Status: Referred to Joint Committee on Planning and Development

It appears that this proposed bill is meant to address some of the same issues as Proposed S.B. No. 514. It would “require planning and zoning commissions to review and approve applications for dealing in or repairing motor vehicles pursuant to current zoning regulations, prior to the approval of such licenses by zoning boards of appeals.”

The proposed bill seems to misunderstand the current scheme and would create new issues. Certificate of location approvals which are governed by 14-54 for motor vehicle dealers and repairers. These are not zoning determinations. Zoning boards currently review certificate of location approvals as agents of the state, specifically the Commissioner of Motor Vehicles. They do not approve licenses. The certificate of location approval must be granted by the local zoning board before the Department of Motor Vehicles will issue a license. Issues have arisen in understanding the capacity in which the zoning board is acting, the process for such approvals, and, as stated for Proposed S.B. No. 514, in the repeal of the standards to be applied for such determinations by the zoning board.

The certificate of location approval scheme would benefit from revision. If S.B. 514 and S.B. 6292 become committee bills, they should address some of these issues and hopefully they will include all certificate of location approvals.

• Proposed H.B. No. 5616 AN ACT IMPROVING STANDARDS FOR INLAND WETLAND COMMISSION AUTHORITY MEMBERSHIP AND ENFORCEMENT. Sponsor- Rep. Frank Smith, 118th Dist.- Democrat

Status: Referred to Joint Committee on Environment

Analysis to come if it is made a committee bill. Currently, only bill pertaining to wetlands. Stated purpose “To strengthen inland wetland and watercourses protections to better protect communities and Long Island Sound from the impacts of climate change.” The bill would amend the General Statutes “to require members of inland wetland commissions to undertake training and to provide higher standards for enforcement by such commissions and for the authority exercised by such commissions.”

• Proposed S.B. No. 860 AN ACT CONCERNING GROUP CHILD CARE HOMES. Sponsor- Sen. Gary A. Winfield, 10th Dist.- Democrat

Status: Referred to Joint Committee on Housing

Analysis to come if it is made a committee bill. Stated purpose: “To increase the supply of group child care homes to address the shortage of child care facilities.” This proposal would amend the zoning statutes eliminate any special permit or “special zoning” requirements for the operation of a group child care home.

• Proposed S.B. No. 518 AN ACT CONCERNING ALTERNATE MEMBERS OF MUNICIPAL PLANNING COMMISSIONS. Sponsor- Sen. Catherine A. Osten, 19th Dist.- Democrat

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To permit members of municipal zoning commissions and municipal boards of appeals to serve as alternate members of municipal planning commissions.”

• Proposed H.B. 5135 AN ACT EXPANDING THE DEFINITION OF MUNICIPALITY. Sponsor- Rep. Greg S. Howard, 43rd Dist.- Republican

Status: Referred to Joint Committee on Housing

Analysis to come if it is made a committee bill. Stated purpose: “To amend subsection (a) of section 8-30g of the general statutes to redefine ‘municipality’ to include any village.” General Statutes § 8-30 provides alternative standards for hearing and appealing affordable housing project from land use bodies.

• Proposed H.B. 5189– AN ACT EXEMPTING CERTAIN VACANT LOTS FROM CONFORMANCE WITH ZONING REGULATIONS. Sponsor-Rep. Joe Polletta, 68th Dist.- Republican

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To specify that construction on certain vacant lots shall not be required to conform with changes in zoning regulations adopted after the approval of a subdivision or resubdivision plan.”

• Proposed H.B. No. 5879 AN ACT CONCERNING ZONING REGULATIONS ADOPTED TO PROMOTE ENERGY EFFICIENCY AND RENEWABLE ENERGY. Sponsors- Rep. Stephen R Meskers, 150th Dist.- Democrat, Rep. Hector Arzeno, 151st Dist.- Democrat

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To allow local energy efficiency and renewable energy zoning regulations to override or supplement the State Building Code.”

• Proposed House Joint Resolution No. 9- RESOLUTION PROPOSING A STATE CONSTITUTIONAL AMENDMENT CONCERNING MUNICIPAL ZONING. Sponsor- Rep. Doug Dubitsky, 47th Dist.-Republican

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To permit municipalities to enact and enforce zoning restrictions without regional or state interference.”

• Proposed H.B. No. 6293– AN ACT CONCERNING SOLAR FARMS. Sponsor- Rep. Carol Hall, 59th Dist.- Republican

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To require solar farms to comply with local planning and zoning laws.”

• Proposed H.B. No. 6529 AN ACT AUTHORIZING MUNICIPAL OPEN CONTAINER DISTRICTS. Sponsor- Rep. Julio A. Concepcion, 4th Dist.- Democrat

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To authorize municipalities to establish‘open container’ districts” with regulations to be established by planning and zoning commissions.”

• Proposed H.B. No. 5783 AN ACT ESTABLISHING A MUNICIPAL RIGHT OF FIRST REFUSAL FOR AFFORDABLE PROPERTY DEVELOPMENTS. Sponsor- Rep. Tom O’Dea, 125th Dist.-Republican

Status: Referred to Joint Committee on Housing

Analysis to come if it is made a committee bill. Stated purpose: “To grant a right of first refusal to municipalities for set-aside developments and to require that any municipalities exercising such right complete such developments within eight years.”

• Proposed S.B. No. 157– AN ACT CONCERNING TRANSIT-ORIENTED DEVELOPMENT. Sponsor- Sen. Martin M. Looney, 11th Dist.- Democrat

Status: Referred to Joint Committee on Planning and Development

Analysis to come if it is made a committee bill. Stated purpose: “To create greater access to mass transportation.” The bill would amend the zoning statutes to require that zoning regulations permit a greater housing density than otherwise allowed within half a mile of any public transit station.”