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04/20/2021 12:00 AMA modification to Madison’s flood plain ordinance—the local rule that governs building and construction along the coastline and the first big proposal coming out of a Coastal Resiliency Commission (CRC) formed in 2019—has become a flashpoint of controversy, with dozens of affected residents banding together to oppose what they characterize as burdensome, rushed, or even unnecessary changes to how coastal homes can be improved or built.
The changes, which are largely in line with recommendations by the state but also exceed some mandatory minimum federal regulations, are intended to be a moderate step in addressing long-term issues with sea level rise, most notably encouraging residents to elevate homes through a longer “look-back” period on improvements they make and raising the height homes must be lifted in certain flood zones.
Madison’s coastal resilience plan, adopted in 2016, recommended these precise changes among other things.
A “look-back” period refers to how the town calculates when “substantial improvements” have been made—in this case, 50 percent of the home’s value—which triggers the federal requirement that they are lifted. If homeowners can spread out their projects or work over a long enough period, they can avoid having to raise the house.
Under current local rules, that period is one year long, and under the new proposal it would be lengthened to five years beginning in 2023, substantially decreasing the amount of improvements residents could make without also having to bring their homes into FEMA compliance, likely at significant cost.
The proposal would also bring language in Madison’s local rules to reflect mandatory changes made at the state level, eliminating confusion as the current ordinance actually provides false or misleading information, according to CRC members.
The Board of Selectmen (BOS) scheduled an additional public hearing in response to the pushback, though it wasn’t immediately clear when that would take place.
Residents have specifically honed in on the lookback and the increase in elevation height, saying that these changes create an undue financial burden on property owners and will discourage development in the area.
The Board of Selectmen (BOS) must approve the modified ordinance by a majority vote. That process has become more complicated, however, as First Selectman Peggy Lyons has so far recused herself from the discussions as she owns a home within a zone that would be affected by the changes, and said via email she would also recuse herself from any future vote.
Lyons added that her “understanding” was that a tie vote would result in the changes being rejected.
So far the BOS has hosted two public comment sessions on the ordinance, each drawing dozens of residents almost entirely opposed to what the CRC has proposed. A CRC meeting last week did not offer any chance for public comment, with Chair Hank Maguire saying that previous public comment sessions as well as the future scheduled hearing was enough for “people to have their voice heard.”
“We’ve done a lot of work, and a lot of people have participated and we’ve had a lot of participation from the public,” Maguire said. “It should go to the [BOS].”
The Pushback
Maguire said there had been some modifications made to the original proposal in response to the outcry, including exempting a portion of the 150 or so homes that would fall under the changes from the two-foot lift, and putting off any change to the lookback period to July 2023 to give people a chance to finish ongoing projects.
All improvements done before July 1, 2023 will not be counted against the “substantial improvement” calculation, meaning homeowners can finish projects or squeeze in new work before the changes take place.
“We hope that that accommodates a good chunk of what people had an issue with,” Weiss said.
Homeowners have continued to write dozens of letters opposing the changes, many of which were shared with The Source.
Doug Stone, who identified himself as owning three “historic houses” in Madison, questioned whether the CRC has “the competence, objectivity, compassion, impartiality, and legally defensible mandate to decide upon the future of many Madison residents.”
Stone focused on how allegedly, only one member of the CRC would be affected by the change, and also that the changes suggest that the unelected CRC Executive Committee could potentially oversee the variance process.
The CRC does not currently have any decision making power in any part of town governance, and only issues recommendations, but did propose that it “or some other body duly appointed” by the BOS would serve as the variance board for flood plain appeals in the future.
Bob Patricelli, who owns a house in the flood plain area and drew up a legal petition against the changes, argued that Madison should not go any further than what was required by federal law, which does not actually mandate any sort of look-back period and only a one foot elevation, though Weiss had previously represented that this was required.
Patricelli urged the town to simply allow officials to make case-by-case determinations as to whether a split-up series of improvements should count as necessary or routine maintenance, or an attempt to avoid reaching the federal definition of a 50 percent “substantial improvement,” triggering the lift requirement.
Improvements under a certain dollar amount might just not count at all, Patricelli proposed, which could save the town labor and time.
“These experts and public officials need to be pressed on what the public benefit is, the public good is [with] having any lookback period, let alone lengthening it,” he said, in a phone conversation with the Source.
According to Weiss, every single town with a flood plain ordinance in Connecticut has a look-back period, and none are shorter than one year. The Source verified that every town from Fairfield to Old Saybrook that has flood plain regulations listed online did indeed have look-back periods, with the majority at five or more years.
“Trying to regulate substantial improvement without a lookback period is just untenable,” Weiss said.
Weiss also pointed out that Madison’s nearest coastal neighbors—Branford, Guilford, Westbrook, and Clinton—all have five-year look-back periods.
Diane Ifkovic, a 20 year veteran of the Department of Energy & Environmental Protection (DEEP) working with flood plains and FEMA, confirmed that every Connecticut town had at least a one-year look-back, while adding there was nothing concrete preventing Madison from eliminating the look-back.
But she said she always recommends an explicit and straightforward lookback set out in the ordinance, which she claimed is the best way to protect the town legally as well as make sure residents and those in the real estate business know what the expectations are.
Getting rid of the lookback period will not eliminate the eventual pressure to lift houses, according to Ifkovic, with both local authorities and the federal government still needing a way to motivate residents to make their homes resilient.
“It’s not going to make it go away,” she said.
Another concern has centered on whether the town should use appraised or assessed value. Madison’s flood plain ordinance uses the most recent appraised value from the Grand List excluding land value, which will result in a lower dollar amount before reaching the “substantial improvement” amount than some towns, which allow independent appraisals of property for use in the calculation.
Some people have made more dramatic claims about the changes, including that the new ordinance would put the town in legal jeopardy or that residents would be immediately thrown in jail for not raising their houses if it is passed.
Much of the language used in the ordinance is extremely similar or very to other nearby towns, including a nearly verbatim description of variance procedures used by Guilford, which many opposed to the changes derided as being too limited.
Other things, including potential fines for those in violation and definitions of what constitutes building costs, are already in Madison’s current flood plain ordinance.
Town Planner Dave Anderson said at a recent CRC meeting that all of the changes have precedent as discussion items in Madison and as policies around the state, and that he “respectfully disagreed” with people who thought the CRC were outside of their charge.
“The CRC isn’t bringing necessarily new ideas on this, they’re just reinforcing and suggesting some ideas that have been around for a while,” Anderson said, adding that he appreciated the “very healthy dialogue” with homeowners.
The CRC has also referred to changes in both subsidies and actuarial calculations related to home insurance for properties in flood plains, which is likely to increase rates for all homeowners in flood zones, though Weiss said likely the impact will be greater for those who have not yet raised their homes.
Patricelli said he thought it was premature for the CRC to be pushing the flood plain changes before details of the federal changes are fully known, which likely won’t be until October.
“I think our group strongly feels that at the very least, the BOS needs to postpone any action until we understand whether and what kind of impact that new FEMA policy has on Madison,” he said.
While acknowledging that the CRC was following its charge in focusing on long-term resiliency, Patricelli said he felt it was important the BOS consider the whole picture, including the freedom of property owners to do what they want with their land.
“If my house gets flattened in a hurricane, then I’m on the hook, but that ought to be my decision,” Patricelli said. “It shouldn’t be the decision of the [BOS].”