‘Protest’ vs. ‘Public Referendum’: Clarifying P&Z Rules for Opponents of Merritt Village


Several residents concerned about the proposed Merritt Village development have come to local officials with an idea of launching what they’re calling a public “referendum” on the divisive project should the Planning & Zoning Commission approve it, the town planner has confirmed.

Presumably, the idea is to push back on a future decision from the appointed body—the same way, say, a resident may pursue a referendum following an appropriation made by the Town Council.

Yet, as Town Planner Steve Kleppin said when asked about the prospect with respect to Merritt, the referendum process does not apply to P&Z decisions.

P&Z is governed largely by state statute, “not necessarily from local jurisdiction,” he said.

“I believe it is set up that way so an applicant can pursue applications in any municipality and follow the same sets of procedures in terms of the timeframes and authority of the [P&Z] Commission,” Kleppin said.

Though public input on land use applications is invited and seriously considered—in the form of in-person comments at public hearings, for example, or letters submitted to P&Z—Kleppin said, “There is no mechanism to allow a public debate on a specific proposal while that applicant has a public hearing pending with the [Planning & Zoning] Commission.”

The public referendum process and rules in New Canaan—what’s subject to a referendum, how they’re noticed, how a petition for a referendum works and attendant timelines—are outlined in Article IV of the Town Charter, and they center on decisions from New Canaan’s legislative body, the Town Council.

The Planning & Zoning Commission is outlined in Article XIII of the Charter, which describes the municipal body as “subject to the restrictions and limitations of zoning commissions as established under the [Connecticut] General Statutes.”

Municipal planning commissions are governed by Chapter 126 of the Connecticut General Statutes. The state law makes no mention of a ‘referendum,’ though a separate appeal process is outlined in Chapter 124 (“Zoning”), Section 8-8. (In appealing a decision by a local P&Z Commission, the statute states, an aggrieved person may take the matter to Superior Court; New Canaan’s regulations also allow for an appeal locally of any decision made by the town Zoning Inspector—see page 175 here.)

In New Canaan, P&Z is guided on a local level by a pair of documents that are updated with heavy input from the public: the town’s Zoning Regulations and the Plan of Conservation and Development (last updated here in 2014).

Part of the Zoning Regulations takes up the matter of “Regulation Amendment Applications”—in other words, applications to change the regulations themselves.

For example, with respect to the Merritt Village Application, a Regulation Amendment Application has been filed to create a new “Pedestrian-Oriented Multifamily Zone” in the Apartment Zone in order to make the project possible.

It is possible for amendments to the zoning regulations to be repealed, including through a formal “protest” of immediate neighbors, though even then, P&Z may later reject it.

As written in Section 8.2.C.3.f of the zoning regulations (see page 169 here), “if a protest against a proposed change is filed at or before a hearing with the Commission, signed by the owners of 20 percent or more of the area of the lots affected by such proposed change or of the lots within 500 feet in all direction of the property included in the proposed change, such change shall not be adopted except by a vote of two-thirds of all the members of the Commission.”

For Kleppin, P&Z members in general terms go through the rigorous process of adopting a POCD, “which involves countless meetings, public hearings and meetings with the public.” They then “amend the regulations based on what was recommended in the plan and lastly they hear applications and determine compliance with the regulations.”

“This is as specific as I will go on the present Merritt application, but right now they are discussing whether what is proposed is consistent with the POCD and whether it meets the other criteria discussed previously,” he said.

“If you recall back to the 2003 POCD—and this predates me—but the big concern was loom and residential teardowns,” Kleppin continued. “There was tremendous public uproar for this to be addressed. In response to this, P&Z with the help from Glenn Chalder from Planimetrics developed brand new regulations, many of which have been duplicated in surrounding towns. My point is, during that process, that really was the public referendum. The public was in on every step. Another example is the recently approved, comprehensive, changes made to the Business B zone. That involved inviting the property owners and abutting property owners to a meeting. Meeting with the property owners individually. Presenting the draft pan publicly. Amending the plan and eventually finalizing it. The next step was we completely rewrote that section of the regulations. That was done with notice to all the property owners, soliciting their input. Then we held numerous hearings on the amendments and finally adopted them. Now we are seeing applicants come forward with proposals.”

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