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01/13/2019 11:00 PMA proposal involving the creation of floating zone in town has caught the attention of many Deep River residents. Town officials claim the change will be to the benefit of the town, but the proposal and the pace at which it’s headed to a vote has stirred up strong concerns, leaving some residents wondering if there isn’t more to this change than meets the eye.
On Thursday, Jan. 17 the Planning & Zoning Commission (PZC) will hold a second public hearing on the proposal, a continuation of the commission’s Dec. 13, 2018 hearing at which numerous residents voiced strong concerns.
Following last week’s story “Floating Zone Proposal Returns to Public Jan. 17,” the Courier/Zip06.com was contacted by several readers asking questions such as: Why is this potential zoning change progressed faster than any other in recent memory? Is the town looking to stack the deck and push this proposal through? Will this change actually benefit the many or just the few?
Town documents provide some context for the issue.
What is a Floating Zone?
Floating zoning differs from regular zoning in several ways. Under regular zoning practice, the owner of a parcel (and the neighbors of that parcel) knows what uses are allowed by right and what are prohibited in a given zone. With a floating zone, the town defines uses it would like to encourage and creates a zone that can be landed on other existing zones if the applicant meets the standards for the site set by the PZC.
In towns that have adopted floating zones, supporters have praised the improved ability to better attract businesses and the ability of the PZC to require designs that exceed the standards of existing regulations. Opponents of floating zones cite the uncertainty that neighboring properties face when a zone can be quickly changed; they also note that under floating zones, a handful of appointed officials on the PZC are granted greater power.
Clinton has two recent experiences with floating zoning. In one, the town adopted a floating zone to encourage affordable housing, which was a need identified in the town Plan of Conservation and Development; the town opened the 21-unit 8 Liberty Place development in June 2018. In another instance, a developer proposed a floating zone to allow a CVS with a drive-through in a zone that wouldn’t otherwise allow such a use; that proposal met vehement local opposition and was denied, though later mishandling of the application by the Clinton PZC resulted in the applicant getting development approval through a court-overseen settlement.
The current Deep River proposal is to include two main floating zone districts in town; the first is the R-80 Residential Floating District with permitted uses including landscape/nursery services and contractor’s business and storage yards. The second is the CIP Commercial Floating district that allows storage of landscape and nursery equipment with less than two-ton capacity, screening of top soil and cutting firewood, but excluding brush and stump processing.
Procedures to amend the Zoning Regulations and the Zoning Map to permit floating zones includes a multi-step decision process and the proposed zone change must be consistent with the Plan of Conservation and Development.
If a property owner wishes to land a floating zone on a specific parcel for one of those two uses, he or she must go through a public hearing to get approval for the use first, then through an additional public hearing and approval process, which will require all the specifics of the use of the property, complete with detailed site plans and permits.
The Origins of the Proposal
Deep River Zoning Enforcement Officer (ZEO) Cathie Jefferson said this proposal has been in the works in town since January 2018. Town documents suggest the proposal has a bit more history than that.
At its Aug. 17, 2017 meeting, the PZC addressed a compliance issue involving Scott Papoosha of 199 Stevenstown Road. The property, in an R-80 zone (described as “Very Low Density Residential” in town zoning regulations), straddles the Deep River and Westbrook line and Papoosha had been issued a cease and desist by the ZEO “in April 2017 to prohibit the landscaping processing center on the residential property and in accordance with accessory use regulations the equipment may not be stored on the site,” according to meeting minutes.
Papoosha’s attorney, David Royston, indicated that Papoosha had stopped his mulching activities in order to bring the property into compliance, but also shed some light on why Papoosha had begun doing this kind of work on his property in the first place.
“Attorney Royston noted that Mr. Papoosha purchased the property in 2012 and at the time of purchase understood that the previous property owner was operating a materials processing on the site and he then continued that activity and as part of the operation started stock piling municipal materials to be processed on site as arranged with former First Selectman Richard Smith,” the minutes read.
According to the minutes, Royston told PZC that Papoosha would like to find a way to allow other operations on the property beyond work for the town and asked that in the meantime, the cease and desist be amended to allow “stock piling materials from the Town of Deep River.”
Jefferson agreed and amended the cease and desist, according to the minutes.
Town officials and Papoosha’s agents continued to find a way the landscape materials processing could continue and be brought into compliance. Draft zoning regulation amendment options were presented including adding landscape businesses to uses allowed by special permit in the R-80 District or to try to reclassify the property as a Commercial Industrial Park District (CIPD).
Fast forward to January 2018, the date offered by Jefferson. At a PZC meeting on Jan. 18, a proposal from Papoosha to amend the zoning regulations to allow a Rural Commercial Industrial Overlay Zone was on the agenda, but before the discussion began, “Attorney Sylvia Rutkowska, present on behalf of Attorney David Royston, stated that they are withdrawing the application for the Overlay Zone,” according to the meeting minuted. “She stated that they are working on a rough draft of a new regulation and at some point they would like to meet with the Regulations Committee to discuss.”
On April 9, 2018, a PZC Regulations Committee meeting was held. Rustkowska returned with information on a potential new regulation: overlay and floating zones.
According to the limited minutes from that meeting, following the presentation by Rustkowska, the committee “decided to pursue undertaking creating regulations to create floating districts to encompass landscape businesses and contractors storage yards.”
That proposal appeared once more at a Regulations Committee meeting in June 2018 before arriving before the PZC in a final form in December 2018.
Jefferson confirmed that the original idea came from Royston.
“He came and spoke to the commission and he was proposing an overlay zone and gave the commission some information and the commission determined that they were not interested in an overlay district, but they would consider floating districts,” she said.
While the proposal came from one resident’s attorney, Jefferson said she thinks this change will benefit the whole town.
“It’s a zoning tool that we think has a lot of merit,” she said. “That is why we put it out there and get reviews and see how people feel about it.”
Papoosha did not return requests for comment.
Resident Concerns
The origins of the floating zone proposal feeds the arguments some residents are making that a big change is being made to benefit the few. Resident Gary Clark, who lives near Papoosha’s property, said he doesn’t see how this proposal makes zoning more restrictive and that it goes against the town’s Plan of Conservation and Development (POCD).
“I don’t believe this whole thing falls into our POCD, which calls for the limiting of pocket development and this doesn’t do that,” he said. “This allows pocket development all over the place and the only person who will benefit is the developer or particular property owner.”
Clark said he bought his home because it is quiet. He said the possibility that he or anyone else could purchase a home, thinking it’s a residential area and then later find out a commercial use can drop in on a neighboring parcel because of a floating zone, should concern a lot of folks.
“It’s an incredibly slippery slope,” he said. “Town residents need to pay attention because if this happens, you might as well take the zoning maps and throw them away.”
Resident Brett Thompson said he watched the floating zone proposal issues play out in Clinton recently. He said he is concerned that floating zones are being considered in town for all of the wrong reasons, information has been limited, and the decision is being rushed through.
“My understanding is the lawyer for this person proposed the change and that this person does business with the town, probably chipping or something, and if we had to do it somewhere else it would be more expensive,” he said. “So that begs the question of...changing a regulation that affects the entire town to benefit one property? That doesn’t make sense.”
Resident Stanley Rheinheimer, who owns a horse farm in town with his wife, Hillary, said he, too, is concerned about what a floating zone might do to his property.
“I always had in the back of my mind that there could be a subdivision [on the property adjacent to his] because everyone has the right to divide if they have property, but never did I think it could be rezoned into a commercial business use,” he said.
Rheinheimer said residents seem to be opposed to this floating zone proposal while town officials seem to be in favor, feeding the feeling, as Rheinheimer put it, “that something more is going on here.”
The Question of Kastner
Residents have been further concerned by a recent change to the membership of the PZC. The PZC has seven full members and three alternates at any one time. On Dec. 27, 2018, the Board of Selectmen (BOS) nominated current alternate Jonathan Kastner to move from alternate to full voting member. Kastner’s employment and the timing of the appointment raised some questions.
Residents called for greater transparency in the nomination process and asked the town to encourage more new faces to seek appointments on town boards and commissions.
Kastner has worked for the town for decades, earlier under Dick Smith and now under current First Selectman Angus McDonald, and formally holds the position of assistant in town hall. He has been on PZC for an equal amount of time, once serving as chair of the commission.
Kastner could not be reached for comment.
At a Special Town Meeting on Jan. 8, more than 80 residents filled into town hall to hear discussion on Kastner’s appointment to full PZC member. Some residents raised concerns over having a town employee sit on a board or commission, as the charter prohibits salaried employees from such an appointment. McDonald referred to a legal ruling from 1993 that said that as Kastner is considered to be an hourly employee, the issue does not apply.
McDonald said he hopes residents also see the value in experience.
“One of the reasons I think that Jonathan is valuable to PZC is because of his experience,” he said. “He knows the regulations, he knows the statutes, he knows the history of the town. He has been involved and he has learned from all of those years. I think it is appropriate to continue to use that experience and for the town to benefit from that experience.”
Residents also expressed concern that due to Kastner’s close relationship with government officials, he could be the positive swing vote on the floating zone issue. McDonald said he takes issue with folks claiming there is a conflict of interest because he respects Kastner’s integrity.
McDonald also said he couldn’t speak to how Kastner might vote on the floating zone issue because he had not spoken with Kastner about it, a response that drew a few laughs from the crowd.
A few seated members of PZC spoke against Kastner’s appointment, but ultimately the nomination was approved by 42 “Yes” votes to 35 “No” votes.
Kastner was scheduled to be out of his office the week of Jan. 14, though it was unclear if he would attend the Jan. 17 vote.