At a public hearing on Jan. 4, the Planning & Zoning Commission heard a petition by developer Douglas Benoit to amend town zoning regulations in a way that allows what is known as a “floating zone” in Clinton.

Following the applicant’s presentation—and a contentious public comments period—the commission moved to continue the public hearing on Monday, Feb. 1.

“Just so that there’s no secrets left in the bag, if all of this came to fruition, that would be the future home of what is now CVS, which is further east on Main Street,” said Thomas Cronan, the Guilford attorney representing Benoit and his company.

Seeking to build a CVS pharmacy at the northwest corner of the intersection of routes 1 and 81, Benoit has proposed creating a mixed-use New England Village Special Design District available exclusively to industrial and business zones.

Like a conventional zone, a floating zone describes the standards for a district, including setback requirements and permitted uses. Unlike a conventional district, a floating zone isn’t tied to any geographic location and not designated on the zoning map; it’s affixed to a particular property only after an application is approved.

How It Works

Floating zones are useful in communities that want to permit a limited number of specific uses without mapping their location in advance. For example, a community with no industrial zones in its local ordinance may not wish to have intensive industrial development, but may welcome a low-impact, high-tech industry under certain conditions. A floating zone would grant this type of control and flexibility.

“Let’s not let the zoning regulations be a straightjacket,” Cronan urged the commission. “This is a site that begs to be revitalized and redeveloped, but it’s important that this be done right.”

Creating a floating zone, he suggested, paves the way for regulatory modifications at the Planning & Zoning Commission’s discretion—and therefore avoids a situation where the Zoning Board of Appeals is “spot-zoning wherever you go.”

Eric Knapp, the town’s zoning and wetlands enforcement officer, explained that Benoit’s application “is really in two parts.” Part 1 would allow floating zones (Clinton’s current zoning regulations do not allow them to be placed for any reason). Part 2 would make the New England Village Special Design District (NEVSDD) eligible to be placed in any of the industrial or business zones. The kinds of modifications possible under the NEVSDD zone include smaller setbacks, less parking, and higher density than an underlying zone might allow. In exchange, the Planning & Zoning Commission can impose more stringent architectural and design features so that the site fits better with its location.

“While it’s true that the applicant will eventually want to place the floating zone at the corner of Route 1 and Route 81, that is not a part of this application,” Knapp explained. “That will require a separate application.”

Indeed, Cronan noted, “The meat and potatoes—the parking requirements, the setbacks, the design, all the stuff that gets people interested and excited—is a matter for another night.”

‘Very Frustrated’

Several of those present at the public hearing voiced strenuous opposition to Benoit’s application for a floating zone, arguing that it undermines the predictability of the town’s zone map and is not aligned with Clinton’s Plan of Conservation and Development. Many residents were also disappointed in the lack of communication about the public hearing, claiming more could have been done to alert townspeople to the application for a zoning change and the public’s opportunity to respond to it.

“I’m very, very upset,” said Judy Hirsch, addressing the commission. “You’re going to destroy our small town, especially a beach town. You’ve already devalued our properties in Founders Village and all up along 145.”

Michael Milano, who owns a Clinton self-storage facility and several commercial properties—including 67 West Main Street, new home of Fox Driving School—said, “As an investor in the town, you spend extra money when a site is zoned a certain way.”

Creating a floating zone, he suggested, can give other investors an unfair advantage.

“I’m very frustrated that there are different rules,” Milano said.

“From my experience, we have spot-zoning issues right now in Clinton that need correcting, and perhaps the current regulations need adjusting,” said Clinton Taxpayers Association President Pamela Fritz, “but to permit floating zones throughout the town? I believe this will be very detrimental to residential property owners.”

Landowners in business (B) or industrial (I) zones, she said, could potentially use the floating zone to “expand their influence into residential areas,” adding, “There’s a large concern that there’s a devaluation of residential properties in Clinton. Residents feel they have to defend their property values.”

Fritz speculated that the adoption of a floating zone in town could prompt lawsuits.

Clinton resident Kirby Cummings also offered his comments on the application, saying, “I believe this is a great idea, and it’s brought with good intent. My fear is that it is really a tool of convenience, or it could be a tool of convenience if you run into a bump in the road on every issue that comes your way, and it becomes your hammer. It’s a big hammer to wield against people who would become adversely affected.”

Spot Zoning?

Resident and business owner Jeffrey Cashman called Benoit’s proposal “spot zoning,” adding, “I think this commission should immediately reject this application.”

“Some of the concerns tonight,” Cashman said, stem from “some of the historic failures that have been in this commission in some of the applications before it. People are basically nervous about their property values in one of the worst economic times. They really are. There are some wonderful, wonderful people on the board. There are some wonderful people in the room tonight. There are people who have made major investments in their homes, major investments in their businesses, whether it be industrial or business. And there are people who are just trying to make sure that they get to the target line. We’re relying on a brand-new Commission. Everybody’s watching you on the commission. We put a lot of trust in you…and I wanted to say that I’m looking forward to some great things from you.”

The courts make a distinction between spot zoning (which is generally not permitted under Connecticut law) and floating zones (which are legal). Spot zoning refers to a specific location being zoned in a way that’s inconsistent with its surroundings and neighboring zones and inconsistent with a town’s comprehensive zoning plan. Floating zones are special, detailed-use districts whose location is undetermined and whose proposed structure types, sizes, and placement must be pre-approved. Floating zones are deemed compatible with the geographic area where they eventually locate.

‘We Have a Lot of Discretion’

In response to residents’ concerns, Cronan explained that a floating zone is “a special set of zoning regulations that apply as an overlay on top of the basic zoning regulations applicable to a particular section of a town. In this particular case, the I and B zone regulations still apply, but these additional ones would float on top…and allow modification of those regulations at the discretion of the [Planning & Zoning] Commission. This commission still is vested with the discretion and power to decide when a floating zone is or is not warranted.”

Noting that Cummings’s hammer analogy doesn’t apply to this case, Cronan characterized some of the public comments expressed in the hearing as serious misstatements.

“Even if we allow these floating zones,” said Planning & Zoning Commission Chair Gary Bousquet, “it’s going to be a special use. They have to come back. We have to approve the design and where it’s going. We could turn it down if we don’t like the use in that location, so we have a lot of discretion when somebody comes back for a special use.”

“The difficulty at present, and why the hearing was left open,” Knapp said, “is that many details were omitted from the draft proposal submitted. The applicant was anticipating listening to the concerns raised at the first public hearing and then providing additional language. We have not seen any additional language at this time.”

The next public hearing will be held at 7 p.m. on Feb. 1 at Andrews Memorial Town Hall.