Zoning Regulation Changes Pending For Landmark's Oswegatchie Hills Development

East Lyme Zoning Commission is under the gun and under remand from Superior Court Judge Stephen Frazzini to amend the regulations regarding affordable housing.

The judge's 130-page long decision issued last October came as a result of Landmark Development's appeal of the Zoning Commission's part-approval and part-rejection of its third application, which proposes to build 840 units of affordable housing along Caulkins Road in the Oswegatchie Hills area of East Lyme.

Judge Frazzini sent the issue back to the town with orders that the commission change its regulations regarding affordable housing to incorporate a number of amendments proposed by Landmark. The proposed changes would affect all affordable housing proposals going forward. 

Since the last public hearing on the issue, attorneys for the town and the developer have met to hash out the details. According to East Lyme's Counsel Mark Zamarka, many of the proposed changes won't substantially change the existing regulations but there are a few areas of disagreement. 

The biggest sticking points are regarding buffer zones. Currently the regulations require a 100 foot buffer zone between an affordable housing development and any other existing or approved residential housing neighborhood. Landmark seeks to reduce that to 25 feet. 

East Lyme zoning regulations also require a 150 buffer between any housing development and tidal wetlands. Landmark sought to remove that entirely, although Frazzini recommended it be reduced to 25 feet instead. 

The public hearing on the issue closed last night. Now, East Lyme Zoning Commission has 65 days to act but the Zoning Commission has little choice but to adopt the new regulations because they are effectively court-ordered. Indeed, when push comes to shove, the Zoning Commission has very little power to regulate affordable housing developments, period.

Zoning Rules Don't Apply to Affordable Housing

"Affordable housing zoning applications can be covered by zoning regulations but they don't have to be," said Landmark's attorney, Tim Hollister. "Just because a development plan doesn't meet current regulations is not an automatic disqualifier."

While that sounds hard to believe, Hollister is standing on solid legal ground when he says this. In Connecticut, the landmark case on the issue is Wisnowski v. Berlin Planning Commission of 1995. In that case, the Appellate Court ruled that applications made under the affordable housing statute are not traditional zoning applications and therefore zoning compliance is not required for a planning commission to act on a subdivision application for an affordable housing project.  

"My recommendation is to do a zoning regulation amendment. We're imposing on ourselves what format we're going to submit," said Hollister. But, he added, this is something the developer is doing by choice, not by necessity.  

"The applicant can revise, rewrite, or simply throw [the regulations] out the window. The Superior Court is not going to be bound by regulations," Hollister said. "This is a procedural sideshow to get to the next step in the process."

Health, Safety, and Sewers

The only discretion the Zoning Commission has is with regard to public health and safety, which the court agrees trumps the need for affordable housing. Frazzini said the town has wide discretion to consider the impact a development would have on water, sewer, emergency access, emergency services, and traffic.

Landmark has an application pending with East Lyme's Sewer and Water Commission, where there remains disagreement between the town and the developer as to whether East Lyme has adequate sewer and water capacity in the area Landmark has in mind to meet the needs of the proposed 840 housing units. 

The public hearing on the proposed zoning regulation changes ended last night. The public hearing on Landmark's request for sewer capacity, meanwhile, will resume at the next East Lyme Water and Sewer Commission meeting on Tuesday, October 23.