Home Rule In Land-Use Rests On State Statutes

Like every city and town in Connecticut, Easton sets rules and regulations for land-use with authority to do so under the state’s constitutionally reserved “police powers” to protect the health, safety and general welfare of its inhabitants.  Home rule in zoning is not an inherent municipal power; it is a state enabled and regulated power.

That distinction between inherent and delegated authority could play out in the current discussions about housing inequities, although the upcoming special session of the General Assembly might only have time to deal with law enforcement issues and plans for mail-in voting during the coronavirus pandemic.

The Lamont administration has been public in its preference for a collaborative approach between the state and local government on land use regulations. However, the majority Democratic Party in the state legislature is now on record as wanting to expand affordable housing opportunities, one of its 33 general proposals for consideration in the special session. That could require state intervention.

Zoning is dealt with in Chapter 124 of Connecticut’s General Statutes. Section 8-2 of that chapter covers regulations and clearly conveys on Easton’s Planning and Zoning Commission the power to set acreage requirements and use restrictions on construction permitted in it property districts. The section also provides for limitations on development in terms of conservation considerations such as watershed protection, which has been a major concern in Easton.

The appraisal principle of conformity is also recognized in the section: “Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such [a] municipality.”

The restricting of development in Easton to one and three acre parcels for single family residences would appear to fit comfortably into the statute’s “suitability” provisions, except for the section’s assertion that “such regulations shall also promote housing choice and economic diversity in housing, and shall encourage the development of housing opportunities, including housing for both low and moderate income households.”

In that regard, the statute specifically mentions cluster and multifamily development “consistent with soil types, terrain, and infrastructure capacity” to serve the housing needs of  “all the people of the municipality and the planning region in which the municipality is located.” Such additions to permitted uses could be implemented through special permit regulations, such as those that allow the construction of churches and schools, which typically are not among the regular permitted uses.

To date, the state has relied heavily on the for-profit real estate market to make inroads on housing affordability and availability in suburban towns. Existing legislation provides developers with accelerated access to the courts to challenge permit denials by zoning commissions, as long as the denials were of plans that included a required percentage of affordable housing. The other advantage for the developer in such a case is that the burden of proof is on the commission to justify the denial, not on the developer to justify a reversal of the denial. Easton has had once such contested development that has been in adjudication for over a decade.

Faced with this challenge in state legislation, some suburban towns have established their own housing task forces to promote affordable housing on town terms. Nearby Fairfield is an example. Easton has not chosen that course. It does have an affordable housing accessory apartment regulation, which holds rent to an affordable level, but the house owner is not required to rent the apartment. The accessory unit can remain as an improvement to the property for an alternative private use.

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