An Intrusion Into ZBA’s Statutory Authority
To the Editor:
It is said that rules without enforcement are merely wishes. And that is true with respect to Newtown’s zoning regulations where they are enforced, or not, at two levels — when special (land use) permit applications are considered by the zoning commission and when a zoning enforcement officer or, on appeal, the zoning board of appeals (ZBA), acts to coerce compliance with the regulations.
Our zoning commission is charged by state statute with adopting land use (zoning) regulations and determining how to enforce them. The commission’s regulations (which are subject to change) provide that “the Newtown Planning and Zoning Commission hereby designates the Newtown Land Use Agency [a Town department] as the Zoning Enforcement Authority to implement and enforce the Newtown Zoning Regulations.” In response, the Land Use Agency’s position is that 1) all enforcement discretion is vested exclusively in itself, that 2) it will decide which regulations and which commission decision to enforce and which not to enforce and that 3) the zoning commission has no say in the matter. The administration appears content with that arrangement.
Certain land uses are allowed without further zoning review. Special Exception uses are uses that are allowed, but only if the proposed uses are appropriate and safe in a specific location. It’s here that the commission is engaged in enforcing its own regulations. When the zoning commission regularly looks for ways to avoid putting its regulations into effect and doesn’t apply them evenhandedly to all applicants, it fails in its duty to enforce them. Such corruption of the regulations might be done under the guise of “interpretation,” but it more often than not goes so far as to be an exception that is not its to grant and is unfair to other applicants. It makes the regulations unpredictable and less enforceable.
The ZBA alone, on the other hand, is charged by state statute with granting exceptions to the zoning rules, but only in specific limited circumstances. When the zoning commission itself grants such exceptions, either directly or indirectly, it is not only a failure to enforce, but an unlawful intrusion into the ZBA’s statutory authority as well.
Under current practice, Newtown’s zoning commission can adopt all the regulations it wants (within legal parameters) and the Land Use Agency will ultimately decide what to enforce and what not to enforce. The effect of all this is that our zoning regulations are effectively made and enforced (or more to the point, not enforced) by unelected town employees who are not accountable to the taxpayers by way of unreviewable decisions that are made out of public view. That is not conducive of good government. If that is acceptable to our residents and taxpayers, however, then that’s the political reality. If not, they should “ride herd” on the commission and the zoning enforcement officers (and the Land Use Agency) by paying attention to application and enforcement decisions and making themselves heard.